Mariana Villa da Costa – Littler Mendelson
Hello Readers! The first edition of our “International Employment Law Quick Facts” was a success! Many readers commented on the article and asked me to prepare profiles for other countries. Again, please feel free to add a comment, or send me a note to let me know what you think about this post. We will try to publish additional installments in this series based on what you request, so keep checking back!
Q. What are the definitions of employee, employer and independent contractor?
A. Before going into our definitions it is important to note that in Canada, the employment practices of most employers are provincially regulated, whereas federal jurisdiction is limited to employers that deal with national infrastructure, for example, banking, railways, and airlines. Since each jurisdiction in Canada has specific legislation, it is important to become familiar with the local specifics before engaging in any labor and employment matters.
In Canada, the statutes that confer rights and obligations to employees and employers usually contain definitions. The Ontario Employment Standards Act has a good definition of Employees:
- a person, including an officer of a corporation, who performs work for an employer for payment (wages);
- a person who supplies services to an employer for wages;
- a person who receives training from a person who is an employer, and
- a person who works from home for an employer.
Employer, on the other hand, is an owner, proprietor, manager, superintendent, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person on it.
Although there is no precise definition of the term “independent contractor” the idea is always of direction and control. An employer is entitled to direct and control how and when the work is performed. An independent contractor is left to determine how to perform the services for the client; the firm that retains the independent contractor can only specify the product and result of the independent contractor’s work.
Q. Is it necessary to have written employment contracts in Canada?
A. In Canada there is no need to have a written employment contract. A contract of employment will exist if it was agreed, either orally or in writing. However, written contracts are not customary, unless it is for executive positions, or if employees are hired for a fixed term or task.
The main reason for having a contract for executives is to clarify and address the severance package. On the other hand, the need to have them in place for employees hired for a fixed term or task is to avoid the statutory obligation to give notice of termination.
Q. Are there any specific rules in regards to the duration of employment contracts?
A. In Canada, if there is no specified term, the contract will be presumed to be for an indefinite term. However, parties to an employment relationship can agree on employment for a fixed term. In this case, the employer will not have to dismiss the employee and give reasonable notice.
It is important to note that if the fixed term of a contract expires and the employee continues to work without entering into a new fixed term agreement, it is understood that the contract becomes for an indefinite term.
Q. Are there any rules in regards to discrimination in employment?
A. Canada has very serious regulations in terms of human rights and discrimination; this is prohibited in various grounds.
The Canadian Charter of Rights and Freedoms sets a constitutional standard that all governments must follow — federal and provincial. The Charter states that every individual is equal before and under the law and has the right to equal protection. However, this Charter cannot be directly used by an employee against the employer; in those cases, the individual must rely on human rights statutes to challenge discrimination on employment terms and decisions.
The Ontario Human Rights Code is an example which defines that discrimination is prohibited in the areas of employment, accommodations, services, facilities and signage. It protects employees from discrimination on the grounds of race, place of origin, ancestry, race, ethnic origin, citizenship, creed, gender, sexual orientation, age, marital and family status, disability, and also addresses sexual harassment.
Q. What are the rules regarding working hours?
A. Different employment statutes in Canada define the work day and work week. In most provinces, the standard work day is eight hours, but the standard work week varies in different provinces – the low is 40 hours per week, for example in British Columbia, and the high is 48 hours per week (Ontario) .
It is also important to note that most employees who perform supervisory and management functions are excluded from standard hours regulations.
Q. Are there any minimum wage requirements in Canada?
A. In Canada, an employer is obligated to pay employees wages of at least the minimum established in the jurisdiction of employment. In some cases and in some jurisdictions, employers do not need to pay minimum wage, for example, students who work in Ontario.
Q. What are the rules regarding the termination of employment?
A. In Canada the employment relationship can only be terminated for:
(i) Just Cause – When the employee engages in serious misconduct, e.g., disobedience, unlawful or dishonest conduct, violence, subordination, etc. In this case, the employee is not entitled to any compensation beyond salary up to the day of termination.
(ii) Without Cause – Employer does not need any motive to terminate employee, however, reasonable notice or pay in lieu of notice must be provided.
Q. What should an employer know about benefits and social security in Canada?
A. Canada has an extensive social security system covering pensions and social welfare benefits, which provide coverage for almost the whole population. Responsibility for the planning, management and delivery of social security programs is shared between the federal and provincial governments.
The universal pension system is state-funded, while employees, employers and the self-employed must contribute to the earnings related pension scheme and the employment-related benefits scheme, which covers sickness and maternity pay, unemployment benefits and other welfare assistance.
The only benefits that employers need to provide to employees are those related to the mandatory statutory social security programs, such as:
- The Canada Pension Plan (CPP) for residents outside the province of Quebec and the Quebec Pension Plan for the residents. The CPP is a national social security program mandatory for all employers.
- Federal employment insurance – a mandatory contribution that fund income frpm loss of employment, maternity, parental and sickness benefits.
- Provincial worker’s compensation regimes – maintained in each province – provide benefits in case of workplace injuries.
- Provincial health and hospital insurance plans – provide for basic medical assistance and essential hospital care.
I hope this quick summary can be used as a road map for employers doing business in Canada. Please post your questions and comments.
Important Note: This posting is intended to provide a brief overview of employment law in Canada. It is not intended as a substitute for professional legal advice and counsel.
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