Best Employment lawyers in Canada as ranked by Lexpert
Employment Lawyers work on the rights and obligations between individuals and their employers. The foundations of employment law arise from the common law in most provinces and the civil law of Québec. This forms the basis of what employment lawyers practice.
The main obligations of the employer are to provide work agreed to, pay the remuneration and provide a safe workplace. The employee must execute the work agreed to and be loyal to the employer. The practice of employment law generally involves the negotiation and drafting of individual employment contracts, advice with respect to the numerous aspects of the main obligations, the drafting of non-solicitation and non-competition clauses, golden parachute compensation plans and arbitration clauses.
In addition, it involves litigation arising from the employment relationship, including unlawful or dismissal actions, as well as the application of provincial and federal related statutes such as Labour Standards, Human Rights and Health and Safety in the workplace. The best employment lawyers are frequently involved in these types of cases.
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What is employment law in Canada?
Employment law is the broad term for the branch of law which deals with matters arising from an employer-employee relationship. In Canada, employment law is made up of federal laws and provincial or territorial laws applicable to different circumstances of employment. Generally, employment law is the law governing minimum employment and labor standards, overlapping with the law on the rights of a union and the unionized employees (if applicable), and human rights law which may provide further protection on the part of the employees.
The specific employment laws and the minimum labor standards vary in every province or territory, although, they cover similar subjects, such as minimum wage, hours of work, overtime pays, statutory holidays, vacation leaves and other statutory leaves (maternity, paternity, etc.), notice of termination, equal pay for all genders, and separation pay. In crafting contracts, employment lawyers ensure that these standards are complied with, lest government sanctions and civil cases be filed against them.
The practice of employment lawyers may include assistance in drafting of employment contracts, which may include specific clauses (mediation or arbitration clauses; non-compete clauses; confidentiality clauses; among others). This contract shall primarily govern the relationship of the two parties, and employment lawyers make sure that it follows the applicable federal or provincial employment laws.
Most of the time, lawyering of under employment law would entail advising employees or employers of their respective rights and obligations in lieu of the employment and the contract. Litigation is also a part of the employment lawyers’ responsibility, as when there’s breach of the employment contract by any of the parties, or when damages are sought arising out of the employee-employer relationship.
What is the common law of employment?
Common law, or oftentimes called judge-made law, case law, or judicial precedents, are a system of unwritten laws and rules based on case judgments. In Canada, where common law is applied, common law of employment are the rights and obligations of both employees and employers arising from their employment contract, which may either be express or implied, verbal or written.
These rights and obligations under common law are in addition to other mandatory rights and obligations of either the employer or the employee as provided under federal and provincial or territorial statutes. In the absence of stipulations of these common law in the employment contracts, it is imposed by the court because they are implied by law. As such, employment lawyers are best sought out for in case there’s any confusion as to the jurisdiction or application of these laws.
However, an important distinction must be made – common law does not apply to unionized employees. They are governed by different provincial and territorial statutes.
One of the most well-known common laws as to employment law states that employers should provide for a reasonable notice to employees who are to be terminated. However, in case the reason for termination is not one of those which are considered just cause, the employee in entitled to payment in lieu of the said reasonable notice. The period for the reasonable notice depends upon the circumstances of each case, considering the position of the employee, the age, the length of service, among other factors. Jurisprudence states that the maximum period for the said notice is generally 24 months, and the minimum should not be less than 3 months.
Who do employment lawyers typically represent?
Employment cases are mostly made up of cases filed by the employees against their employers. However, there are also cases where it is the employee who breached the employment contract. The primary reason is that employment law, or labour law for this matter, generally protects the rights of the labourer, the workers, or the employees. This is premised on the fact that against the resources of an employer, an employee would be at the disadvantage, hence, the protection of the laws for the latter.
What laws do employment lawyers use to protect employees in Canada?
Mentioned earlier, employment laws are primarily governed by (1) provincial or territorial statutes, and (2) federal statutes. Employment lawyers may either specialise in both, or specific to a province or territory.
Canada Labour Code
The Canada Labour Code is the federal law governing the rights and obligations of employers and employees under federally regulated workplaces. These workplaces include banks, telecommunications and broadcasting, interprovincial transportation, and other matters of national importance.
Provincial or Territorial Statutes
If the nature of employment is not under federal jurisdiction, or the workplace or work engagement is done in a specific province or territory, then the employee-employer relationship will be governed by the respective provincial or territorial statute on employment or labour.
Other employment and labour laws
Aside from the federal Labour Code and provincial or territorial statutes, other federal laws may also govern employee-employer relations.
Canadian Human Rights Act
The Canadian Human Rights Act provides that it is unlawful to discriminate one’s person based on his/her/their race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
The Employment Equity Act
The Employment Equity Act is the federal law which states that federally regulated organizations and businesses should provide equal employment opportunities to women; Aboriginal peoples; people with disabilities; and, members of visible minorities.
Under the EEA, the following laws provide additional protection for the mentioned four groups:
How do I file a complaint against my employer in Canada?
For those whose rights are violated under federal law and regulations, including the Canada Labour Code, reports can be made with the federal government’s Labour Program. For employees working in the province or territory, violations can be reported with the employment standards branch of the said province or territory.
Would you like to know more about your right as an employee or as an employer? Scroll down to consult with best employment lawyers specific to your area, all of whom are Lexpert Ranked.