COMMON LAW – CONTRACT OF EMPLOYMENT

Here is a broad overview of various topics in labour and employment law. This would come out predominantly from a Canadian context.

If you work for somebody, then by definition you have an employment contract, i.e. the common law contract of employment. Generally, there is an explicit contract written out between employer and employee, other times the contract is just implied to exist at common law. The common law contract of employment is basic which is why employees prefer to negotiate a collective bargaining agreement. That being said, the courts have attempted to build a “floor of rights” into the common law contract of employment. A barrier they have encountered is that there is no room for the common law and statute to develop in tandem, i.e. if a right is covered as per statute then that right cannot exist at common law.

The common law contract of employment is poor because at common law there aren’t many developments that create substantive or procedural rights for employees, there is a huge imbalance of power between employers and employees which undermine the freedom to contract; civil litigation is a costly and time-consuming process.

Relationship between Custom and Treaty Law

The basis of the Nicaragua case: what happens when there is the same rule of law in customary law and treaty law.

1. COEXISTENCE The main conclusion from this case is that the two sources of law can continue to co-exist. Just because a norm also exists in treaty law, does not mean that the source from customary law is not extinguished. For example the law of use of force flows both from treaty law and customary IL.

2. TREATY –> CUSTOM Treaty activity can constitute state practice for the formation of a customary norm. One has to be very clear in analyzing state conduct whether states are only acting under their treaty obligations or whether adherence to treaty obligations has grown to include opinion juris and broader state practice. A good example of this is UNCLOS (UN convention on law of high seas). A lot of UNCLOS provisions have become customary IL. States that are not part of UNCLOS are bound by some of the provisions of the Convention. For a treaty to create custom you need non treaty parties acting as if they are bound by the treaty.

3. CUSTOM –> TREATY custom can be restated in a treaty format. When a treaty codifies customary IL, the treaty is restating customary IL.

4. CONTRACT –OUT A treaty can be used to contract out of customary IL. There are however certain obligations that no state can contract out of i.e. jus cogens norms.

What are the statute of limitations on injury claims?

You slipped on city property and will be bringing a claim against the city.

You’ve been hit from behind by an automobile and you feel fine for a couple of weeks but then you’re starting to get pain in your neck.

No matter your story, if you’re injured and plan on filing a claim you should be aware of your limitations. Continue reading “What are the statute of limitations on injury claims?”

Outlining the Costs of Speeding

Speeding is a leading cause of motor vehicle accidents. Drivers typically speed because they believe they will arrive at their destination quicker. A common misconception that many drivers have is that driving 10 km/h over the posted speed limit is low risk and will cut down on their commute time. Anecdotal evidence also suggests that law enforcement officers will not pull you over if you are speeding between 5 to 9 km/h over the posted speed limit. In reality, if you are driving even 1 km/h over the posted speed limit and a police officer with a speed gun clocks you, they are well within their rights to issue you a speeding ticket. However likely or unlikely this is to happen in real life is debatable, and not the subject of this article.

Appropriate speed limits are determined by taking into account a variety of factors, including road design, volume of traffic, as well as the likelihood of encountering pedestrians in the area. Speed limits are set for ideal road conditions, so if the roads are wet or icy and visibility is poor, the posted speed limit will be too fast. These are not arbitrarily imposed limits and they are enforced for public safety. By following the posted speed limit, you decrease your odds of being involved in a motor vehicle collision and potentially injuring yourself and another person.

Will I Save Time on My Daily Commute?
Continue reading “Outlining the Costs of Speeding”

Protect Yourself – Hire and an Injury Lawyer When Injured in an Accident

When you’re involved in a car accident, or really any incident where you’ve been injured, it’s important to protect yourself.

You may find yourself faced off against another’s insurance company. You may also think that your insurance company is on your side. That’s partially not true. The insurance companies see you as profit–as a number. That means they may not always be looking out for your best interests 100% of the time. That’s why it’s prudent to hire an attorney who has the responsibility of thinking about you over the bottom line of the insurance companies. Continue reading “Protect Yourself – Hire and an Injury Lawyer When Injured in an Accident”

Federal Courts Act and Rule of Law (CANADA)

Federal Courts Act s 2(1):

“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prereogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96”.

There are exceptions to the above definition:
-if statute gives power to another Court
-if remedy is not provided by Federal Court act e..g habeus corpus application

There are two grounds for judicial review – Procedural and Substantive.

Continue reading “Federal Courts Act and Rule of Law (CANADA)”

Two main approaches to international law: positivism and naturalism

Historically, there are two main approaches to international law:

Natural law, which can be thought of as the idea that power of law does not come from voice of authority. In contrast positivisim says the authority is what makes the law the law. Natural law says there is a higher reason why the law is the law (e.g morality, universal principles, religious, etc.). Under natural law, horrific immoral laws would not be valid even if they came from a legitimate authority.

The application of these approaches goes back 2000 years. Natural law finds its origins in ancient Rome and Cicero the philosopher. Thomas Aquinas examined source of the aw’s legitimacy; according to him natural law is God’s natural law.

A modern definition explores how natural law is universally applicable with rules derived from reason; a doctrine that human affairs should be governed by ethical principles understood by reason.

Continue reading “Two main approaches to international law: positivism and naturalism”

Keeping an Injury Diary

If you’ve ever been injured in an accident such as a motor vehicle, then you may be seeking compensation for damages. Damages to your car is one thing, but to your body is quite another. Soft tissue damage is unseen (another blog post) and can be a prolonged injury.

Some believe keeping an injury diary is a good way to keep track of the increasing severity of their injury overtime. This may sound like a good idea at the outset, but it turns out to work against the injured. Here’s why. Continue reading “Keeping an Injury Diary”

Intro to Regulatory Offences

Regulatory offences: Some offences utilize the machinery of criminal law, but are not truly considered to be criminal offences. These offences deal with everyday civil matters such as traffic infractions, pollution, hunting regulations, and so forth. Besides the supremely important fault requirement (discussed below), there are a number of ways to identify a “regulatory offence” from a “true crime”:

1. true crimes are usually more socially and morally condemned than regulatory offences.
2. regulatory offences are usually aimed at deterring harm to the public, rather than the individual.
3. regulatory offences are often part of a complex regulatory framework.
4. regulatory offences are not in the Criminal Code (R. v Wholesale Travel, 1993).

Continue reading “Intro to Regulatory Offences”