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Terms in this set (14)
Fourfold test (Montreal v Montreal)
2. Risk of loss
3. Chance of Profit
4. Ownership of tools
Employee vs. independent contractor vs. dependent contractor test (McKee)
1. Employee or contractor?
- Is the agent limited exclusively to the service of the principal?
- Does the agent have ownership of the tools?
- Does the principal control the agent (not only what product sold, but how, where and when)
- Does the agent have a chance of profit/loss beyond that of a fixed commission?
- Are the agent's activities part of the principal's business (central) or not (tangential)
2. Independent or dependent contractor.
- If performs work exclusively (or almost exclusively) for principal and economically dependent on them, suggests dependent contractor
Common employer doctrine test (Downtown Eatery)
Must be a
between legal entities who compete for role of the employer...
- Individual/corporate shareholdings
- Interlocking directorships
- Common control in the relationship
When restrictive covenants are valid (Elsley)
1. They are reasonable between the parties
2. They are reasonable with respect to public interest
To assess this consider:
- Was there a proprietary interest entitled to protection?
- Were the spatial or temporal features of the clause too broad?
- Is the clause unenforceable as it is against competition in general or another public policy reason?
Test for determining common law reasonable notice
- Length of service
- Availability of similar employment having regard to the training, experience, and qualifications of the employee
- Character of employment
- Whether the employee was offered a promise of job security
- Whether the employee was induced to leave previously secure employment
- Whether the employer breached its duty of good faith and fair dealing in the manner of dismissal (did they damage reputation, misrepresent/lie about the reason for dismissal, fire to deprive the employee of a pension or other benefit)
These issues are all considered in the same analysis, the result will be a reasonable notice period. Typically one month/year of service. Max 24 months (mentioned in Cronk)
Test for Just Cause (McKinley v BC Tel)
Whether the dishonesty (misconduct) was such that the employment relationship could no longer viably subsist.
Factors to consider:
- Nature and degree of misconduct
- Whether misconduct breached an essential term of the employment contract (fundamentally inconsistent with obligations to the employer)
- Whether the misconduct breached the employer's faith in the employee
In assessing this test, using facts, courts must consider:
1. Whether the evidence establishes the misconduct on the balance of probabilities
2. If so, whether the nature and degree of misconduct (dishonesty) warranted dismissal
Constructive dismissal test - repudiation by breach of contract branch (Potter)
1. Identify an express or implied term that has been breached
2. Determine whether a reasonable person in the same position as the employee would have felt that the
of the employment contract were being
Constructive dismissal test - repudiation without a specific breach of contract branch (Potter)
Would the effect of the employer's cumulative (past and present) actions lead a reasonable person to believe the employer no longer intended to be bound by the terms of the contract (usually looking at mistreatment)
Employee duty to mitigate (Evans v. Teamsters)
An employee has a duty to mitigate where:
1. The salary offered is the same
2. The working conditions are substantially the same
3. The relationships involved are not acrimonious
Test: Would a reasonable person in the employee's situation have accepted the employer's offer?
Punitive damages (Honda)
1. Independent actionable wrong
2. Harsh, vindictive reprehensible, and malicious conduct... extreme in nature such that by any reasonable standard it is deserving of full condemnation and punishment
Meiorin 7 reasons
1. Artificial distinction between adverse effect/direct discrimination
2. Different remedies flowing from the initial classification
3. Questionable assumption that the affected group is always a numerical minority
4. Practical issues in the application of employer defences
5. Legitimizing systemic discrimination
6. Dissonance between conventional approach and express terms/purpose of human rights legislation
7. Dissonance between charter and human rights legislation
Meiorin BFOR test
1. That the standard was adopted for a purpose rationally connected to performance on the job
2. That the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose
3. That the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show a standard is reasonably necessary, the employer must show it was impossible to accommodate an individual sharing the characteristics of the employee without incurring undue hardship.
Shaw sexual harassment
Sexual harassment if conduct is repetitive and has the effect of creating an offensive working environment
General damages for mental anguish (not in course of dismissal) - unsure of how this one really works (McKinnon)
Award if party acted "wilfully or recklessly". Consider:
1. Nature of harassment (verbal, physical)
2. Age of victim
3. Vulnerability of victim
4. Duration of harassment
5. Frequency of harassment
6. Psychological impact
7. Degree of aggressiveness and physical contact
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