Employment Law for Paralegals Study Notes

Employment Law for Paralegals, 3rd Edition

Introduction

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Chapter 1: Overview of Legal Framework

Learning Outcomes

  • After completing this chapter, you will be able to:

    • Identify the role of licensed paralegals in providing legal services related to labour and employment law.

    • Identify and describe the key sources of employment law and where to find them.

    • Understand the judicial framework within which labour and employment law is regulated.

    • Define the nature of diverse employment relationships.

Role of Licensed Paralegals

  • Scope of Practice:

    • Paralegals have a limited scope of practice to provide legal services in specific areas:

    • Small Claims Court: Proceedings in small claims court are within their practice boundaries.

    • Provincial Offences Act: They can operate in the Ontario Court of Justice under this act.

    • Tribunals: They may represent clients before established tribunals under provincial or federal acts.

  • Permitted Activities: Within permitted practice, paralegals may:

    • Advise parties on their legal interests, rights, or responsibilities regarding proceedings.

    • Prepare necessary documentation for legal proceedings.

    • Negotiate on the client's behalf.

Areas of Labour and Employment Law

  • Paralegals can assist clients with:

    • Human Rights Code Application: Before the Human Rights Tribunal of Ontario.

    • Employment Standards Complaint: Filed with the Ministry of Labour.

    • Wrongful Dismissal Claims: Pursued in Small Claims Court.

    • WSIB Representation: Assistance regarding claims or appeals related to the Workplace Safety and Insurance Board and Appeals Tribunal.

    • Labour Relations Board Appeals: Participating in appeals before the Ontario Labour Relations Board.

    • Grievance Arbitration: In unionized workplaces.

    • Regulatory Proceedings: Prosecution or defense under the Provincial Offences Act.

Sources of Employment Law

  • Statute Law:

    • Law passed by governmental legislative bodies.

  • Constitutional Law:

    • Written and unwritten laws determining governmental structure and authority.

  • Common Law:

    • Laws made by judges based on prior judicial decisions or precedents.

Key Components of Employment Law

  • Legislative Requirements: Address background factors such as demographic changes, social values, technology, and business operations.

  • Regulations: Detailed rules for implementing or administering statutes.

  • Jurisdictional Scope:

    • Federal Employment Laws: Affect approximately 10% of employees.

    • Provincial Employment Laws: Cover about 90% of employees.

    • Municipal Law: Generally does not have jurisdiction over employment law.

  • Examples of Statutes:

    • Federal Employment Statutes:

    • The Canada Labour Code

    • The Canadian Human Rights Act

    • The Employment Equity Act

    • Ontario Employment Statutes:

    • The Employment Standards Act, 2000

    • Ontario Human Rights Code

    • The Occupational Health and Safety Act (OHSA)

    • The Workplace Safety and Insurance Act, 1997

    • The Labour Relations Act, 1995

Important Legislative Elements

  • Canada Labour Code Structure:

    • Divided into three parts:

    • Part I: Industrial Relations

    • Part II: Occupational Health and Safety

    • Part III: Standard Hours, Wages, Vacations, and Holidays

  • Canadian Human Rights Act:

    • Prohibits discrimination based on race, nationality, ethnicity, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and criminal convictions when a pardon is granted.

Constitutional Law

  • Canadian Charter of Rights and Freedoms:

    • Guarantees rights and freedoms, including:

    • Freedom of religion, association, and expression.

    • Democratic rights, mobility rights, legal rights, and equality rights.

    • The equality rights provision (Section 15) is significant in employment law.

    • Example Case: Vriend v Alberta demonstrated protections for historically disadvantaged groups.

    • Note: The Charter does not apply to private sector employers' actions.

Reasonable Limits on Rights

  • Section 1 of the Charter: States:

    • “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

  • Notwithstanding Clause (Section 33): Allows legislation to operate notwithstanding certain Charter provisions.

Common Law Principles

  • Judicial Precedence:

    • The common law is developed through judicial decisions based on prior rulings.

    • Stare Decisis: Legal principle of standing by precedents.

    • Higher court decisions bind lower courts in similar cases.

  • Persuasive & Distinguishable Cases: Decisions can either sway lower courts or differ enough to allocate based on unique facts.

Employment and Contract Law

  • Collective Agreements:

    • Contracts between employers and unions dictating terms of employment for groups of workers.

    • The impact of dismissal on employment law, damages, and successful contract lawsuits.

  • Tort Law:

    • A branch of civil law addressing wrongs that one party causes to another, independent of contractual relationships.

    • Negligent Tort Requirements:

    • Duty of care owed by defendant.

    • Breach of that duty.

    • Foreseeable damages suffered by the plaintiff as a result.

Judicial and Administrative System

  • Administrative Tribunals:

    • Created to resolve specialized issues like employment standards, industrial relations, or discrimination.

    • Hold primary jurisdiction over most employment matters (excluding wrongful dismissal disputes) and operate in a quasi-judicial capacity.

Employee Classification

  • Independent Contractors: Self-employed individuals contracted for specific work.

  • Dependent Contractors: Workers whose income primarily comes from one principal.

  • Determining Employee-Employer Relationship Factors:

    • Control

    • Chance of profit/risk of loss

    • Tools used

    • Total relationship context between the parties.

Chapter Summary

  • The chapter outlines the role of paralegals in labour and employment law, detailing their representation within various forums in Ontario.

  • It identifies constitutional, statutory, regulatory, and common law as essential employment law sources.

  • It explains the judicial and administrative frameworks for employment law enforcement in Ontario.

  • It emphasizes the critical importance of correctly classifying workers as employees, dependent contractors, or independent contractors.