What state-specific laws govern the employment
relationship?
The Employment Standards Act, 2000, sets out most of the
minimum employment standards for provincially regulated workplaces
in Ontario.
There are a number of other statutes affecting the employment
relationship in provincially regulated workplaces in Ontario,
including:
- Accessibility Ontarians with Disabilities Act, 2005
- Agricultural Employees Protection Act, 2002
- Apprenticeship and Certification Act, 1998
- Crown Employees Collective Bargaining Act, 1993
- Employers and Employees Act
- Employment Insurance Act
- Employment Protection for Foreign Nationals Act, 2009
- Employment Standards Act, 2000
- Hospital Labour Disputes Arbitration Act, 1990
- Human Rights Code (Ontario)
- Labour Relations Act, 1995
- Ministry of Labour Act, 1990
- Occupational Health and Safety Act
- Ontarians with Disabilities Act, 2001
- Ontario College of Trades and Apprenticeship Act, 2009
- Ontario Labour Mobility Act, 2009
- Pay Equity Act
- Provincial Schools Negotiations Act, 1990
- Protecting Child Performers Act, 2015
- Public Sector Labour Relations Transition Act, 1997
- Public Service of Ontario Act, 2006
- Retail Business Holidays Act
- Rights of Labour Act
- Smoke-Free Ontario Act
- Trades Qualification and Apprenticeship Act, 1990
- Wages Act; and
- Workplace Safety and Insurance Act, 1997.
There are a number of other statutes affecting the employment relationship in federally regulated workplaces in Ontario, including:
- Canada Labour Code
- Canadian Human Rights Act
- Employment Equity Act
- Employment Insurance Act, and
- Personal Information Protection and Electronic Documents Act.
Who do these cover, including categories of workers?
Depending on the circumstances, independent contractors, dependent
contractors, consultants, interns, employees of affiliates,
employees from temporary agencies and third party employees can be
considered employees or workers for some common law or statutory
purposes.
The definition of "employee" and "worker"
varies among the legislation. The Labour Relations Act,
1995, for instance, explicitly includes "dependent
contractor" in the definition of "employee". The
Occupational Health and Safety Act defines
"worker" to include self-employed individuals,
independent contractors and temporary workers.
Misclassification
Are there state-specific rules regarding employee/contractor
misclassification?
A person may be classified as an independent contractor at common
law, but because of economic dependence on and control by the
entity for which the services are performed, legally qualify as a
dependent contractor.
A person may also be classified as a dependent contractor
notwithstanding that he or she conducts business through a
corporation and hires others to assist in the performance of the
work.
The usual distinction between a dependent contractor as compared to
an independent contractor is that a dependent contractor is
entitled to reasonable notice of termination of the
agreement.
Different employment related legislation (ie. tax and safety) may
treat dependent or independent contractors as employees or workers
subject to particular legislation.
Contracts
Must an employment contract be in writing?
While preferable for the protection of both parties, an employment
contract need not be in writing. To be enforceable, an employment
contract simply requires the requisite elements of any contract: an
offer made with the intent to create legal relations, acceptance of
that offer, consideration, capacity, and legality. Where a written
contract of employment has been contemplated but not signed, the
contractual agreement will be enforceable if the conduct of the
parties shows that their clear intent was to enter into a binding
contract. In many cases contracts are part oral, part written, and
part implied by the common law.
Are any terms implied into employment contracts?
Employment contracts can be oral or written and may include express
and implied terms. It is implied in every contract of employment
that an employer will provide the employee with reasonable notice
in the event of termination, except in the event of just cause.
Other examples of implied terms are that employees will perform
their duties with reasonable skill and diligence, and that they
have a duty of loyalty to their employee. Usually only senior
employees would owe a fiduciary duty to their employers.
Are mandatory arbitration agreements enforceable?
Section 7(1) of the Arbitrations Act, 1991 states:
"If a party to an arbitration agreement commences a proceeding
in respect of a matter to be submitted to arbitration under the
agreement, the court in which the proceeding is commenced shall, on
the motion of another party to the arbitration agreement, stay the
proceeding."
Ontario courts have held that the language of section 7(1) of the
Arbitrations Act, 1991 is mandatory and requires the court
to stay a proceeding when there is an agreement to arbitrate and
the dispute is properly within the mandate of the arbitrator. It is
for the arbitrator to determine in the first instance whether a
matter in dispute is subject to arbitration.
How can employers make changes to existing employment
agreements?
Any amendment or renegotiation of the employment agreement must
usually be agreed to by both parties and must be founded up new
consideration. An employee can make unilateral changes to certain
terms of employment if that is permitted under the contract of
employment or with sufficient notice of the proposed change to the
employee. Continued employment is not valid consideration for a
mutually agreed variation. If a material change to an employment
agreement is made unilaterally, without reasonable notice and the
employee does not consent, the employee may bring an action for
constructive dismissal or claim damages for breach of
contract.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.