EMPLOYMENT LEGISLATION IN

CANADA
Instructor: Christine McLean
BUSN 5060
 Hierarchy of Employment Legislation
in Canada
Precedent – the decision or
Stare Decisis – decision of a Supreme Court interpretation of a court of
higher court is binding.
of Canada another jurisdiction can act as
persuasive authority as to hos
legislation is to be interpreted
Court of Appeal and applied in other
juridictions.

Supreme Court

Provincial Court

Administrative Tribunals
What is Tort Law?

■ Tort law is primarily judge-based law, whereby the precedent and jurisprudences set by
one judge through his or her assessment of a case establishes how similar cases will be
interpreted. Victim is provided compensation for losses or damages in civil court.
■ Inherited from the English system
■ Two categories
– intentional torts (for example, assault, battery, trespass, intentional affliction of
mental distress)
– unintentional torts (for example, negligence based on events in which harm is
caused by carelessness).
■ Regulatory bodies in each jurisdiction to enforce the law and aid in its interpretation
Court System in Hierarchy of Employment
Canada Legislation

https://www.justice.gc.ca/eng/csj-sjc/ccs-ajc/02.html
Pay for Work, Work for Pay
■ The basic exchange for employment in the
economy is work for pay and vice versa
■ Legal protections for employers and employees,
but mostly for employees
■ Primary objective of employment legislation is
to protect employees from being exploited
and/or being placed in harmful situations

■ Employer have some rights

Understanding Jurisdictions
Canadian Charter of
Rights & Freedoms

Federal Provincial & Territorial

Jurisdiction Jurisdictions

– federally regulated employers all other employers

■ federal civil service (90% of Canadian workers)
■ crown corporations and agencies
■ Transportation
■ Banking
■ communications
Human Rights

https://bchumanrights.ca/human-rights/what-are-human-rights/
Canadian Charter of Rights and Freedoms
■ Guarantees the rights and freedoms.
■ Protects those basic rights and freedoms of all Canadians that are considered essential to
preserving Canada as a free and democratic country.
■ It applies to all governments – federal, provincial and territorial.
■ The rights and freedoms in the Charter are not absolute.
■ Includes protection of the following:
– fundamental freedoms, democratic rights
– the right to live and seek employment anywhere in Canada
– legal rights (life, liberty and personal security)
– equality rights for all
– the official languages of Canada
– minority language education rights
– Canada's multicultural heritage
– Indigenous peoples’ rights https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html#a2a
Four Fundamental Freedoms
1. freedom of conscience and religion;
2. freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
3. freedom of peaceful assembly; and
4. freedom of association
 HUMAN RIGHTS
BC Human Rights Code
LEGISLATION 1. Age
2. Race
■ Jurisdiction specific
3. Colour
– Provincial, Territories, Federal
4. Creed or religion
– Protected grounds/personal characteristics
vary 5. Sex
6. Marital Status
7. Family Status
■ Prohibits intentional and unintentional 8. Physical or mental disability
discrimination
9. Sexual orientation
– In employment, service and facilities, and
10. Ancestry of place of origin
housing
11. Political belief
12. Gender Identity
13. Gender Expression
14. Indigenous Identity
Discrimination
“… a distinction, exclusion or preference based on one of the prohibited grounds that has
the effect of nullifying or impairing the right of a person to full and equal recognition and
exercise of his or her human rights and freedoms.”
Intentional Unintentional
• direct • constructive or systemic discrimination
• differential or unequal treatment • embedded in policies with adverse
• indirect (3rd party) impact on specific groups
• by association

Examples:
- Denied a promised promotion after a supervisor found out she was pregnant
- Dress Code requiring women to wear high heal shoes
- Terminate from employment because of disability (concussion)
- Denied ability to apply on position because of height
- No access for persons with physical disabilities
- Forcing a person to use a gender specific bathroom
- Prorating vacation for certain leaves but not others
https://www.cdn-hr-reporter.ca/hr_topics
When is Discrimination Legal?
■ Bona Fide Occupational Requirement (BFOR)
– justifiable reason for discrimination
– based on business necessity (safe and efficient operations)
– e.g. vision standards for bus driver

■ Meiorin Case (British Columbia (Public Service Employee Relations Comm.) v.

B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.))
– there is a three-step test for determining whether a discriminatory standard is a BFOR.
The employer must establish:
1. the standard was adopted for a purpose that is rationally connected to job performance;
2. the particular standard was adopted in an honest and good faith belief that it was
necessary to the fulfillment of that legitimate work-related purpose;
3. the standard is reasonably necessary to the accomplishment of that legitimate purpose.
This includes a requirement to demonstrate that it is impossible to accommodate without
undue hardship.
https://www.cdn-hr-reporter.ca/hr_topics/systemic-discrimination/new-test-reasonable-accommodation
Duty to Accommodate (DTA)
■ Requirement for Reasonable Accommodation
– adjustment of employment policies/practices so that no individual is denied benefits or is
disadvantaged based on prohibited grounds in human rights legislation
– Examples:
■ Work station redesign for wheelchair
■ Modified hours of work
■ Use of medical cannabis
■ Absences from work due to mental illness
■ Undue Hardship
– financial costs make accommodation impossible
– Size of the organization
– http://www.bchrt.bc.ca/shareddocs/decisions/2020/jan/15_Thanh_v_BC_Ministry_of_Pu
blic_Safety_and_Solicitor_General_2020_BCHRT_15.pdf
■ Duty to disclose, Duty to inquire, Duty to Participate (in union environments tri-partite)
■ Objective medical evidence (disability) or objective evidence
Group Discussions
Scenario 1:
You are a Recruiter for __(your company)____, and you are responsible for hiring a Manager
for the Information Technology Department at the Company. The hiring Director has asked that
you post the post the position only externally as all the internal candidates that he knows of
don’t “fit” with his idea of the perfect teams. As a Recruiter and an HR professional you are
responsible for upholding the values of the organization as well as professional standards
including Human Rights. With this is mind, consider the discuss the following with your group.
1. How might “fit” be a possible human rights issue?
2. What questions might you ask the Director?
3. If there was a possible human rights violation (select one from your discussion), how would
you address the matter with the Director?
4. If the Director disagrees, what will you do?
Group Discussions
Scenario 2:
You are an HR Advisor and one of the nurses in the Operating Room you provide HR
support to sends you an email asking to meet with you. You know the employee has been
struggling with back pain and you suspect that she may be wanting to talk with you about
an accommodation. As it turns out you were right. She advised that her pain was so bad that
she needed to take medical cannabis. As a group, discuss the following.
1. Who needs to be involved at this point?
2. What obligations do you have as the Employer?
3. What accommodations, if any, might you explore?
Group Discussions
Scenario 3:
You are an HR Consultant and one of the Managers in the area you support calls to tell you
that he is having issues with an employee named Jack. Jack is calling in sick regularly, and
often comes in late. The manager wants to fire Jack. You do a bit of “fact-finding” by
pulling attendance records and find that the Manager is accurate. Jack has called in sick on
15 occasions this year, and it is only July! As a group, discuss the following.
1. Do you think this is a human rights issue?
2. What possible human rights issue might it be?
3. What steps would you take to determine if it is a human rights issue or not?
4. If it is a human rights issue, do you accept the absences and tardiness?
Other employment related legislation

■ Employment Equity Programs

■ Employment Standards Act
■ Labour Relations Act
■ Occupational Heath & Safety Act
– Harassment and Sexual Harassment in the Workplace
– Respectful Workplace Polices
– Workplace Investigations
■ Privacy Law
Workplace Harassment
■ Harassment
– Any unwelcome behaviour that demeans, humiliates or embarrasses a person that a
reasonable person ought to have known would be unwelcome
– Based on protected grounds and/or other personal characteristics
– Can also be criminal
– Work Safe BC
– https://www.youtube.com/watch?v=497RHaz_ajg&list=PLUyWkHwckhS6UpcUU
9AutDBhuvKDqy_Br&index=1&t=58s

■ Sexual Harassment
– Offensive of humiliating behaviour that is related to a person’s sex, as well as
behaviour of a sexual nature that creates an intimidating, hostile, or offensive work
environment or could be thought to put sexual conditions on a person’s job or
employment
Employers’ Responsibilities

■ Duty to provide a safe workplace

■ Train all employees, including supervisors, managers, directors, and executives on the
policy
■ Have a clear policy with process for dealing with complaints
■ Investigate complaints and make factual findings
■ Issue corrective measures (i.e. discipline and training)
■ Maintain confidentiality (need to know basis)
■ Address retaliatory actions if they arise
Employment Equity Initiatives

■ Employment Equity Program

– A detailed plan to identify and correct existing discrimination, redress past
discrimination, and achieve a balanced representation of designated group
members in an organization
■ Four (4) groups identified
– Women
– Indigenous people
– People with Disabilities
– Visible minorities
Labour Relations Act

■ Provincial/territory jurisdiction
■ For unionized employee groups
■ Can not contract out of employment standards, human rights, or charter rights
■ Rules around forming a union (certification), creating the 1st collective agreement,
bargaining, strikes, lockouts, decertification, and unfair labour practices
■ Complaints and mediation through the Labour Relations Board
Employment Standards Act (ESA)
■ Determined by each province/territory
■ Sets out minimum employee entitlements and employer obligations, such as:
– Minimum Wages
– Vacation pay & Vacation days
– What rate of pay is required for working over the maximum number of hours
– Severance pay
– Notice for layoff
– Averaging agreements/variances
– Statutory holiday pay
– Meal breaks
– Unpaid leave of absences
– Paid and unpaid sick days
■ Complaints and mediation through the Employment Standards Branch
■ BC Employment Standards Video
In class exercise (not for marks)
In your group, review the email from Sandra, find the related provisions in the BC ESA,
and write a response to Sandra addressing her questions.

Dear HR Manager,
I worked on the last statutory holiday and I think my pay is wrong. I make $15.00 per hour
worked from 8:00 am – 4:00 pm, and I only got regular wages. Am I entitled to overtime for
working on a statutory holiday? If, so how much? I was also told that I get STAT pay, what
is that? Do I get that, too?
Thanks,
Sandra
Privacy Law
■ Employees have a reasonable expectation of privacy
■ Employees’ privacy balanced with employer rights
– Technology and intranet use
– Video Surveillance
– Social media
■ Personal Information Protection and Electronic Documents Act (PIPEDA)
– Governs collection, use, and disclosure of personal information
■ The Personal information Protection Act (PIPA)
– Privacy in the private sector
– Describes how all private sector organizations must handle the personal information of its
employees and the public (your customers) and creates common-sense rules about collecting, using
and disclosing that personal information.
– Intends to balance the following two principles:
■ An individual’s right to protect his or her personal information, and
■ An organization’s need to collect, use or disclose personal information for reasonable purposes (section 2
of PIPA).
https://www.oipc.bc.ca/guidance-documents/1438