MGS350 Summer 2019: Workplace Law Assignment - Case Study Analysis

This document presents an analysis of two employment law scenarios. The first scenario examines a case involving potential discrimination based on sexual orientation, focusing on the Canadian Human Rights Act and the Human Rights Code, and explores the validity of an employment contract with a 'Lifestyle and Morality Standard'. It discusses the arguments of both parties, including the employer's potential defenses. The second scenario addresses vicarious liability, the Employment Standards Act, and the distinction between employees and independent contractors. It analyzes whether an employer is liable for the actions of an employee, considering factors like control, financial risk, and the nature of the work. The analysis references relevant case law and legislation to support its conclusions.

Running head: EMPLOYMENT LAW
CASE STUDY ANALYSIS
Name of the Student:
Name of the University:
Author Note:

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EMPLOYMENT LAW
SCENARIO 1:
1. The relevant statute applied in the given scenario is the Canadian Human Rights Act
1976-771 and the Human Rights Code2.
2. The legal basis of the complaint made by Harriet can be the violation of section 3(1)
of the Canadian Human Rights Act3 for discrimination on the basis of sexual
orientation. It also violates section 5 of the Human Rights Code4.
3. As per the facts of the case, it is seen that EM gives housing facility to the persons
having developmental disabilities. Though the residents of the home can be of any
religion but only staff members belonging to Christian religion were hired by EM.
Further, EM also made a provision that required its staff to sign a contract having
‘Lifestyle and Morality Standard’ which provided the staffs to engage in homosexual
relationships. This forms a valid employment contract of the employer with the
employee.
On 2015, Harriet was hired by EM to work as a support worker. Her duties
include cleaning, cooking, doing laundry and also taking other staffs on outing.
However, from the facts of the case, it is not known whether she has signed the
‘Lifestyle and Morality standard’. If she has signed it, she will be bound by it. Hence
after three years, when she entered into same sex relation, she violated the
employment contract. However, if she had not signed the contract, then also she will
be bound by it as she working like an employee of EM and like all other staffs, she
will also be bound by the terms and conditions of the employment contract.
1 The Canadian Human Rights Act 1976-77.
2 Human Rights Code 1990.
3 The Canadian Human Rights Act, s. 3(1).
4 Human Rights Code, s.5.

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EMPLOYMENT LAW
Further, EM can also raise the defences under section 24 of the Human Rights
Code5 which states that right of equal treatment as given in section 5 of the said Code6
will not be infringed when such discrimination is reasonable as well as bonafide due
to the employment nature. Thus this can be raised as a defence by the employer.
Further, it can claim that she has also violated contract of employment signed by it.
4. The counter arguments that can be put forwarded by Harriet that she was subjected to
discrimination on the basis of her sexual orientation. It is provided in the section 5 of
the Human Right Code. She was deprived of the right of equal employment.
5. From the facts of case enumerated in the scenario 1, it can be opined that Harriet is
likely to be successful in her case with EM as the act of the latter clearly shows
breach of section 5 of the Code7. The Human Rights Code prevents any kind of
discrimination against the employees on seventeen grounds mainly out of which there
are factors like sexual orientation and sex
Scenario 2:
1. As per the facts provided in the given scenario, it is seen that Employment Standards
Act8 can be referred to in this case. Apart from this, the common law principle of
vicarious liability can also be referred here.
2. The ESA9 provides the standard for the employees who are working in Ontario. It
also provides the rights and duties of the employers as well as employees in the
5 Human Rights Code, s.24.
6 Human Rights Code, s.5.
7 Human Rights Code, s.5.
8 Employment Standards Act, 2000.
9 Employment Standards Act 2000.

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EMPLOYMENT LAW
workplaces located there. The present issue is to be decided in the light of the said
Act.
The employer is the person who offers employment to other person called the
employee who accepts the offer. But there lies the difficulty to ascertain whether the
person employed is an individual contractor or an employee. The person who works
independently and independent of the control of the employer is called as the
independent contractor. The employment laws are not applicable to the independent
contractor. When the person employed is an employee, he is governed by the said
Act. Other than the contract of service agreement, various tests can be used by the
courts to determine whether a person is an employee or an independent contractor.
In determining this, several factors were taken in consideration as seen in the case
of Sagaz and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue)10
which are as follows;
 Control level which the employer exercises on the activities of the worker,
 Whether the worker uses his own office and equipment or uses those provided
by the employer,
 Financial risk degree of the worker,
 The opportunity of the worker for profit while performing his tasks.
Further as opined by Mainville J.A in the case of Wolf v. The Queen (FCA)11
and Royal Winnipeg Ballet v. Canada (Minister of National
Revenue) (FCA)12, the intention of the parties are to be considered too.
10 Sagaz and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue) [1986] 3 F.C. 553.
11 Wolf v. Canada, 2002 DTC 6853.
12 Royal Winnipeg Ballet v. Canada (Minister of National Revenue) (FCA), 2006 DTC 6323, 2006 FCA 87.

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EMPLOYMENT LAW
Thus, it is seen that Daniel has employed Milt Moore for writing articles about local
sports in his independent newspaper. He pays 2000$ every month along with a fee on the basis of
the words published. Thus, Daniel gives him a fixed salary every month. He also gives work
station with a computer. It shows that Milt uses the official equipment to do his work. All these
showed that Milt is an employee of Daniel though he considers him to be an independent
contractor. Thus, Milt can be regarded as the employee of Daniel.
3. The distinction between an employee and independent contractor is important. An
employee is subject to the ESA13 whereas independent employee is not. When an
employee suffers from any discrimination or unfair treatment from his employer, he can
seek remedies from such employer which is not present in the case of independent
worker. The interest of an employee is much more secured than an independent
contractor.
4. The issue to be discussed here is whether Daniel is liable for the conduct of Milt.
The employer is always liable for the act of his employee as per the principle of vicarious
liability which means a situation where one person is responsible for the act or omission of
another person. But such act or omission must be done in the course of employment.
From the facts of the case, it is seen that Daniel has employed Milt to write local sports
news for his newspaper. However, Daniel received an email from local hockey coach Tod Bert
to whom an insulting email was sent by Milt. Further, Milt posted some defamatory statement on
hockey website. But this acts were not done in the course of his employment with Daniel as
Daniel employed him to write for his newspaper. Thus writings made other than this will not
make Daniel liable. Daniel is not liable for the conduct of Milt.
13 Employment Standard Act 2000.

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EMPLOYMENT LAW
References:
The Employment Standards Act, 2000.
The Human Rights Code 1990.
Royal Winnipeg Ballet v. Canada (Minister of National Revenue) (FCA), 2006 DTC 6323, 2006
FCA 87.
Sagaz and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue) [1986] 3 F.C.
553.
The Canadian Human Rights Act 1976-77.
Wolf v. Canada, 2002 DTC 6853.