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.

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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.

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General vs. Specific Practices

There’s a lot to be said about specific law practices. In fact, there are few ‘general’ practices. Unlike the trades, lawyers typically aren’t ‘Jack of all Trades’. One guy doesn’t specialize in all forms of law. Certainly, there is a general knowledge of other areas, but specialization is very real and something you should pay attention to when selecting an attorney. just going with someone’s cousin Guido doesn’t mean you’re a shoe in for success.

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Managers and Collective Bargaining

Managers are usually excluded from collective bargaining as it is a fundamental premise of labour law that there is a conflict of interest between management and workers (Children’s Aid Society). The most important factors in determining if an individual is a manager are: the power to discipline, the power to hire, promote, demote, and grant wage increases (Children’s Aid). In addition we look to see the discretion exercised by these individuals (Quebec Telephone), being sure to distinguish whether the discretion exercised is “real” discretion, or just implementation of a rubric or policy manual.

Professional and Public Employees – Collective Bargaining

Some statutes exclude certain professional employees from collective bargaining, on the basis that these employees already enjoy a privileged economic position. Traditionally, public employees were excluded from collective bargaining but nowadays we see more public sector employees involved in collective bargaining. Often public employees are covered by special collective bargaining statutes which put certain restricts on the subject matter of collective bargaining.

Dismissal for Cause

An employer can dismiss an employee if there is a valid cause. The test for valid cause is if the employee dishonestly violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer (McKinley).

Constructive Dismissal

Constructive dismissal is a doctrine that states when an employer unilaterally and drastically alters the terms of an employee’s employment, the employee is entitled to quit their job and sue the employer from wrongful dismissal. In other words, an employer is not allowed to unilaterally change an employment contract, unless the employee explicitly accepts. If an employer continues to work even after the drastic change, this does not necessarily constitute acceptance. Bad faith is not a requirement for an employer to commit a repudiatory breach (Farber v. Royal Trust).

Implied Terms in Labour Common Law

As per common law, there are certain terms that are implied to be in all employment contracts. Most notably, reasonable notice for wrongful dismissal. There is a rebuttal presumption that such a right exists, unless the employer can show evidence that the parties agreed otherwise. Based on the inherent power imbalance between employers and employees, ambiguous terms of employment contracts will be interpreted in a way that is favourable to the employee (Ceccol). An implied term is something that the employer and employee would have agreed to if they had sat down and had a chat at the beginning of the employment relationship (McNamara).

Employee Status in Common law Contract

The common law contract of employment only applies to employees. Independent contractors are not subject to the common law protections of the common law contract of employment (because it is believed that independent contractors are better situated economically to protect their own interests). Thus the first threshold question is often to determine if the plaintiff is an employee. The leading test to distinguish employees from independent contractors is the Montreal v. Montreal Locomotive Works Test:

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