LAW 4110

Employment Law:
Module One
Answers

Exercises:

Page 35. Complete Review and Discussion questions # 3, 4, and 6.

3. The Canadian Charter of Rights and Freedoms applies only where government is
involved. However, the Charter can indirectly affect private sector employers. How?

• An employee cannot use the Charter directly to challenge a private sector employer’s
employment decision or policy. (Section 32 of the Charter states that it applies only to
matters related to the federal and provincial governments and their actions/conduct.)

• However, as part of Canada’s Constitution, the Charter is part of the “supreme law of the
land.” This means that all other statutes must comply with its requirements and any
legislation that violates a Charter requirement may be struck down and thus made invalid.
(This principle is subject only to the “notwithstanding clause” under s. 33 of the Charter,
and it has seldom been used.)

• Therefore, an employee may use the Charter to challenge an employer’s decision or policy
if that decision or policy is based on or allowed by federal or provincial legislation that
arguably contravenes the Charter. Examples of this include:

o Agricultural workers challenged the exemption of farm workers from coverage by

Ontario’s occupational health and safety legislation under the Charter’s equality
rights provision.

o Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’

Compensation Board) v. Laseur – Workers’ compensation legislation in Nova
Scotia was found to infringe the Charter’s equality rights because it limited benefits
for chronic pain to four weeks, as opposed to benefits for other injuries.

o Ontario Nurses Association v. Mount Sinai Hospital – A disabled employee

successfully argued that the provisions in Ontario’s employment standards
legislation that exempt employers from paying severance pay to someone whose
employment contract has become “frustrated” due to disability contravened the
equality rights provisions of the Charter.

4. Describe two possible tools or rules that a judge may use in determining how to interpret
a statute in a particular case.

• One tool is the “mischief rule.” The judge or tribunal looks at the problem that a statute
was intended to remedy and applies that rationale to the case under consideration. For
example, in Jantunen v. Ross, the court had to decide whether the defendant waiter’s tips
were “wages” for the purposes of the Wages Act. If they were, only 20 percent of his tips
would be subject to garnishment (payment to satisfy a creditor). The court decided that
tips were “wages” in this context because the underlying intent of the legislation was to
allow a debtor to continue to support himself while having his wages garnisheed. Because

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 the defendant waiter’s tips were a significant portion of his earnings, the intent of the
legislation was best met by limiting the extent to which tips were subject to garnishment.

• Another tool that courts use are “internal aids” found in the statute itself. For example, the
expansive preamble in Ontario’s Human Rights Code has encouraged courts to interpret
the legislation in a broad and liberal fashion.

• External aids, such as legal dictionaries, are sometimes used.

6. Joanne and her husband were unable to have children and they decided to adopt.
When their adopted baby daughter came into their care, Joanne applied for both
pregnancy benefits (17 weeks) and parental benefits (then 35 weeks) under the federal
government’s employment insurance program. Joanne was given parental benefits but
denied pregnancy benefits on the basis that she was never pregnant. Joanne challenged
this denial based on the equality rights provision in the Charter.

a. In your opinion, was denial of benefits to an adoptive parent fair?

• Consider the following:

o Adoptive mothers do not experience pregnancy and therefore do not have the
same issues of recuperation time.

o However, only a portion of the 17 weeks of pregnancy leave relates to physical

recovery; much of it is for mother–child bonding and this is also required by
adoptive parents.

o If adoptive mothers are eligible for pregnancy leave, it would have to be open to
adoptive fathers as well or else there would be an unfair distinction between the
two parents. And if adoptive fathers, why not biological fathers?

b. Did it contravene s. 15 of the Charter? Explain your answer.

• This question is based on the case of Tomasson v. Canada (Attorney General), 2007 FCA
265 (CanLII). The Federal Court of Appeal found that denying Joanne pregnancy leave
was not a violation of the Charter. The Court applied the test for discrimination found in
the Law case; it held that a “reasonable” person would not find that the distinction made
by the legislation created or perpetuated a negative stereotype of a group (i.e., adoptive
mothers) and therefore it was not “discriminatory.” The Court also stated that the
entitlement of adoptive mothers to parental leave showed that the legislation took their
needs into consideration and did not demean their status in society.

• The Court also noted that if adoptive mothers are eligible for pregnancy leave, adoptive
fathers — and indeed all fathers — could argue for this entitlement.