EMPR 210 ASSESSMENT QUIZ ANSWER KEY

Self-Assessment Quiz 1
1. What does the term “binding precedent” mean?
Lower courts must decide similar cases in the same way as higher courts in the same
jurisdiction, whether they agree with the decision or not

2. Why have courts decided that employment contracts are distinguishable from
commercial contracts?
Commercial contracts are generally not characterized by an inequality of bargaining
power

3. What is a tort?
A wrongful act committed by one person resulting in harm to another

4. What are “administrative tribunals”?

They are created by statute to offer an alternative to the court system

5. Which of the following types of disputes does the Ontario Labour Relations Board
hear?
Disputes between employers and unionized workers arising from both the collective
agreement and the Employment Standards Act

6. What is the central characteristic of the employment contract?

It is an exchange of work for wages

7. According to the test set out by the Supreme Court of Canada in Sagaz, what is the
single-most important question to answer to determine employment status?
Whose business is it?

8. What is the principle characteristic of a dependent contractor?

They usually work for only one organization

9. Which of the following may an independent contractor sue for?

Breach of contract

10. Which of the following is true regarding those people who do “managerial” work?
Even if they are employees, they may excluded from some or all employment-related
benefits by legislation

11. What are workplace norms?

Unwritten rules about how people can expect to act and be treated in the workplace

12. What is a “living wage”?

The amount required to live decently given factors such as the relative cost of living
13. To what does the “spillover effect” refer?
The effect that wages negotiated within the collective bargaining regime have on the
wages of non-unionized employees

14. What is meant by the term “union avoidance”?

A strategy employed by management to reduce the risk that employees will form a
union

15. Why were human rights codes and tribunals developed?

Because the common law does not protect people against discrimination

16. What was the significance of Vriend v Alberta?

The Supreme Court of Canada concluded that all provincial human rights codes must
include sexual orientation as a prohibited ground of discrimination

17. What is the neo-classical perspective view about human rights legislation?
Human rights legislation is unnecessary because market forces, if left alone, will allocate
resources optimally

18. What does the managerialist perspective share with the neo-classical perspective?
They both believe that regulation of work-life through legislation interferes with the
optimal management of the firm

19. What best describes the managerialist’s perspectives on unions?

The managerialist believes that the presence of unions reflects a failure on the part of
management to promote good employment practices

20. Ellen is a supervisor at Acme Managers Co. She has heard rumblings that the
employees are attempting to form a union. Based upon the following, what is her
likely response?
Given her managerialist viewpoint, Ellen would call a meeting with employees to
review any key concerns that have gone unaddressed

Self-Assessment Quiz 2
1. Are all employment contracts made with minors (those under the age of 18) void?
No. Contracts that are generally to the benefit of the minor may be enforced

2. Which of the following are necessary and sufficient to create a valid employment
contract?
Capacity to contract, intention to contract, and the requisite elements of the contract

3. What is mutual consideration?

The requirement that a contract contain something of benefit to both parties
4. What is the significance of Rejdak v. Fight Network Inc.?
It stands for the proposition that a contract presented even one minute after the
commencement of work can constitute an amendment and that amendments require
fresh consideration

5. What is the main difference between an objective and a subjective test?

Subjective refers to what an individual believed to be true whereas objective refers to
what a reasonable person would infer from an individual’s words and conduct.

6. What happens if someone makes an employment contract with an individual who is

mentally handicapped, but performs the job adequately well?
The contract is voidable by one party, but can be performed if it is not made void

7. What is the “parole evidence rule”?

It is a term meaning that a judge need consult nothing more than the clear and
unambiguous language expressed in the contract

8. What is the contra preferentem doctrine?

It is a doctrine of interpretation stating that where a term is ambiguous the judge will
apply the interpretation that best suits the person who did not draw up the contract

9. What is an ancillary contract term?

An ancillary term refers to the rules contained in various policies, handbooks, etc. ...
that govern the workplace and which are included as part of the employment
contract if referred to as such within the employment contract

10. Why are restrictive covenant clauses controversial?

They are controversial because they seem to pit two legitimate interests against each
other: the right of trade against the right of contract

11. Can an employer enforce a restrictive covenant if the employee was fired without just
cause?
Yes, as long as the employee was provided with the requisite notice and the covenant is
itself reasonable

12. May an employer rely upon the terms contained in a policy manual introduced on a
new employee’s first day of work?
It depends. If the manual is presented after the beginning of work it represents an
alteration of the contract and must be agreed to by the employee and offer “fresh
consideration”

13. Some implied common law terms are “read into” all employment contracts. Can they
be overridden?
 They can be overridden by either express terms or statute since the point of implied
terms is only to fill the holes

14. What is “insubordination” in the context of the employment contract?

The refusal to follow the employer’s lawful work orders

15. Which of the following is NOT an implied term regulating the conduct of employees?
The implied duty to refrain from personal use of employer’s asset

16. What is the meaning of quantum meruit?

It is a common law doctrine allowing judges to order the payment of wages based on
the fair market rate when a wage is not included in the contract

17. As a general rule, do employment contracts contain language allowing employers to

unilaterally modify the contract?
No, but there is some speculation as to why this is since the employer usually has the
greater leverage in contract negotiation and such a clause is usually to his benefit

18. What does “new consideration” mean?

It refers to the obligation to provide a new value or benefit to the employee when
seeking to alter the contract

19. What was the outcome in Francis v Canadian Imperial Bank of Commerce?
The amended contract was unenforceable because the employee did not receive new
consideration

20. Which of the following have the courts held as minimally necessary in order to count
as new consideration?
The consideration may be of any value, however small, as long as it represents some
benefit that the employee would not otherwise have

Self-Assessment Quiz 3
1. Which of the following is not a remedy generally available to human rights tribunals?
The power to award jail time for purposeful and serious violations

2. What does the “make whole” remedy mean?

It means to put the victim of discrimination “back in the place” that they would have
been had the discrimination not taken place

3. Do human rights statutes that protect against discrimination extend to the

recruitment process?
Yes. Human rights statutes protect against both direct and indirect discrimination in the
recruitment process
4. Would a job advertisement requiring that an applicant be capable of standing for long
hours at a time be unlawful?
Yes, because it has the effect of indirectly discriminating against persons with disabilities

5. Which of the following is the best example of indirect discrimination?

A sign advertising for job seekers reads: Bouncers wanted. Must be minimum 5'11" and
200 lbs

6. What is the significance of Central Alberta Dairy Pool v. Alberta (Human Rights
Commission)?
It found that even when a rule is based on legitimate business concerns, an employee
may still require accommodation

7. What grounds, if any, would a job advertisement to work in a daycare that stated that
applicants must be able to lift children up to 40 lbs. most likely violate?
Disability

8. Which of the following is the most commonly litigated ground of discrimination?

Disability

9. What is the significance of Entrop v. Imperial Oil Limited?

The Ontario Court of Appeal ruled that mandatory drug testing was permissible only if
the employer had a reason to believe that a particular employee was using drugs and
alcohol and that use posed a safety threat

10. Why is it considered age discrimination to treat persons over the age of 64 differently
from others?
Because every human rights code in Canada removed the upper limit from its definition
of age

11. Which of the following is true with regard to discrimination against those with a
“record of offence”?
Several jurisdictions offer some protection based on record of offences, but how that
protection is defined varies considerably among these jurisdictions

12. Which of the following is the most commonly used defence against a charge of
discrimination?
The bona fide occupational requirement defense

13. What was the significance of British Columbia (Public Service Employee Relations
Commission) v. BCGSEU (“Meiorin”)?
It established that in all cases of discrimination the employer would be required to
attempt an accommodation before they could claim a BFOR defence
14. If a nepotism defence does not exist by statute, for what grounds might an employer
face a claim of discrimination?
Family/Marital Status

15. Which of the following is unlikely to attract support as a BFOR?

A business hires only women because they are necessary to attract customers

16. On what main thing does a BFOR argument usually turn?

On whether or not an employee was accommodated up to undue hardship

17. According to the author what has been the most significant accomplishment of the
duty to accommodate?
It has required employers to proactively ensure that barriers to employees’ equal
participation in the workplace are removed

18. Who bears the responsibility to ensure viable accommodation solutions?

Anyone who has input into the work arrangement. This includes both the employer and
employee, and a workers' union where relevant

19. Which among the following might the duty to accommodate impose on employers?
To alter the work conditions of other workers in the search for accommodation

20. When it comes to religious accommodation, must employers provide a paid day off for
religious observance?
No. An employee may be required to use a vacation day or to work an alternative day to
“make up” for the day off.

Self-Assessment Quiz 4
1. What is the court’s general view about the employment relationship?
That work is of central importance to one’s life and that contracts should be
interpreted with employees’ vulnerability in mind

2. Imagine that a fixed-term contract is ended by the employer prior to the date
contracted for. What, if anything, would the employee normally be entitled to?
Damages for lost wages, but not for reasonable notice, since this is normally not
possible under a fixed-term contract

3. What is the significance of Ceccol v. Ontario Gymnastic Federation?

It stands for the proposition that when the term of a fixed-term contract is
ambiguous, the courts will treat the contract as an indefinite-term contract.

4. Which of the following is NOT, in and of itself, a reason to reject the termination
terms found in an employment contract?
 The terms are less provident that what a court would have awarded under a claim of
reasonable notice

1
5. According to Professor Geoffrey England, what is the doctrine of frustration most
concerned with?
Determining who shall bear the burden of the event which frustrated the contract

6. Looking only to the common law, what would be the outcome if it is established
that the cause of frustration of contract is employee illness or disability?
The employer would not be required to provide reasonable notice nor to provide any
accommodation.

7. Which of the following have been held to be the cause of frustration of contract?
A change in the law prohibiting security guards from having criminal records

8. What is the main characteristic of frustration of contract?

Unforeseen event which are not within either party’s control that render it
impossible for the terms of the contract to be performed

9. What is the significance of Wightman Estate v. 2774046 Canada Inc?

It stands for the proposition that even when there are long-term disability/illness
benefits the contract may be frustrated, unless the contact stipulates that the parties
intended for the contract to continue whether or not the employee ever returned to
work

10. What is the difference between statutory notice (employment standards) and
reasonable notice?
Statutory notice is legislated minimum whereas reasonable notice is determined by a
common law test.

11. Can reasonable notice be altered by contracting parties?

Yes, but only as to the length of notice, the right to some notice cannot be contracted
away

12. What is wrongful dismissal?

A claim that an employee was terminated without receiving the requisite notice
period or pay in lieu

13. What is the difference in approach between Lazarowicz v. Orenda Engines

Ltd. and Bardal v. Globe and Mail?
In Lazarowics the court presumes the intention of the parties whereas in Bardal, the
court contemplate how to best balance interests.
14. What is inducement” in the context of reasonable notice?
It is one of the factors in the analysis of reasonable notice, which adds to its length if
an employee was already in a well-paying secure job when he was offered the job
from which he was later terminated

15. What is the main consequence that flows from establishing cause for dismissal?
The employer is not required to provide notice

16. Which two things must be established before an employee can be summarily
dismissed?
The employer must establish that the employee did the things for which she stands
accused and that these things were serious enough to merit being summarily dismissed.

17. From where we get the doctrine “progressive discipline” and what does it mean?
It was developed by labour arbitrators in the context of the unionized workplace and
refers to the application of progressively more serious discipline in order to correct
performance problems

18. Is intoxication at work always grounds for summary dismissal?

No, the offense might not be serious enough to merit summary dismissal, particularly
if the employee is an alcoholic.

19. What is the significance of Kelly v. Linamar Corporation?

It stands for the proposition that a person may be summarily dismissed for conduct
that is undertaken off-duty if that conduct has a nexus with the employer’s legitimate
business interests.

Self-Assessment Quiz 5
1. What is “Constructive Dismissal”?
It refers to a type of dismissal wherein the employer breaches the terms of the
contract resulting in the employee quitting

2. What is the significance of Farber v. Royal Trust Co.?

It stands for the proposition that the test for constructive dismissal is whether a
reasonable person in the same position would conclude that one of the contract’s
essential terms was being altered

3. Which of the following most often gives rise to claims of constructive dismissal?
Changes to job duties and compensation

4. What is the significance of Hadley v. Baxendale?

It stands for the proposition that the employer is not liable for every loss that results
from a wrongful termination but only those which were reasonably contemplated
5. What are Wallace Damages?
This is the name given to the damages that may be awarded if the employer engages
in bad faith during termination

6. Why is it more difficult to get damages under the Honda than the Wallace
approach?
Because with the Honda approach one must prove that one suffered harm as a result
of the bad actions of the employer and not just prove the bad actions of the
employer

7. What is the “duty to mitigate”?

It is a duty of the employee to lessen the amount that the employer is required to pay
in reasonable notice

8. What is the test for assessing whether an employee has resigned?

The employee’s intention to quit must be “clear and unequivocal”. Depending upon
the situation, saying “I quit” is not enough.

9. What is the significance of Upcott v. Savaria Concord Lifts Inc.?

It stands for the proposition that merely saying “I quit” is not enough to constitute
termination of the contract by the employee

10. What is the significance of Toronto Electric Commissioners v. Snider?

It was determined that the regulation of work predominantly fell under section 92

11. Which of the following actions violates the Charter guarantee of equality?
A college will not accommodate its religious employees even though it is easy to do
so

12. Who can bring forward a Charter challenge?

Any person who believes a law or action violates the Charter

13. What is the purpose of the Oakes test?

To establish whether or not the government can justify its offending law as a
“reasonable limit”

14. Why does the author say that minimum wage legislation is difficult to understand?
Because there are many legislated and regulated exceptions to the legislated
minimum

15. What concerns did unions have regarding minimum wage laws?
That they would create downward pressure on wages and contribute to decreased
unionization
16. What characteristics are relevant to the determination of “substantially similar”
work?
Skill, effort, responsibility, and work conditions

17. What did “nine-hour leagues” want?

A nine-hour workday for all workers

18. What general effect did the Great Depression have upon working-time legislation?
It had the effect of slowing the momentum toward working-time regulation

19. In general, do mass terminations require a greater statutory notice period than do
individual terminations?
Generally, they require a greater statutory notice period

20. What is the difference between severance pay and termination pay?
Severance pay is in addition to termination pay, and usually targets longer-term
employees
Self-Assessment Quiz 6

1. Which of the following does the author identify as a fundamental principle of

intellectual property law?
That no intellectual property exists in an idea, but it does exist in material form

2. What is a trade secret?

A particular method or process for doing something to gain a business advantage

3. What is the theory behind monopoly on commercialization?

It encourages innovation

4. Which of the following is not a form of intellectual property right?

Tortious rights

5. Which of the following does not represent a criterion that needs to be satisfied in
order to have a patent issued?
Educational

6. What is the common law rule that emerged in Techform Products Ltd. v. Wolda?
That employees are presumed to own their inventions

7. Can unregistered trademarks be protected from infringement?

Yes. Trademarks enjoy protection under the common law and can be infringed
through the rule against “passing off”
8. Can unregistered patents be protected from infringement?
No. Patents are protected by statute, which includes the requirement to register
them as one's own

9. When was the first federal patent act passed?

1860s

10. Which of the following does the Copyright Act protect?

Useful Invention

11. Under what condition does PIPEDA apply to provincially regulated workplaces?
When the provinces have established substantially similar privacy regulation

12. What process does PIPEDA set up for those who believe that their privacy rights
have been violated?
They may go to a privacy commissioner who can issue recommendations but not a
binding decision

13. What does the author suggest that future challenges in the federal sector to
collection and disclosure of personal information should focus on?
The reasonableness of the requests

14. Which of the following statements is true?

Only a few provinces have created statutes that protect privacy

15. Which of the following has not been recognized in Canadian law as a dimension of
privacy?
Relational privacy

16. What is significant about the Jones v. Tsige case?

In this case, an Ontario court developed the tort known as “intrusion upon seclusion,”
thus allowing one person to sue another for invasion of privacy

17. In Jones v. Tsige what standard did the court set for when the tort of intrusion upon
seclusion would be applied?
When the intrusion would be found “highly offensive” to a reasonable person

18. In Colwell v. Cornerstone Properties Inc., why did the employee win her suit for
constructive dismissal when she quit after learning that her employer had installed
a video camera above her desk?
Because of the implied contract term for both employees and employers to treat the
other with good faith
19. What was the significance of Communications, Energy and Paperworkers Union of
Canada, Local 30 v. Irving Pulp & Paper, Ltd.?
The court determined that random alcohol testing was a violation of the workers'
dignity and privacy and was subject to high justificatory standards

20. Which of the following constitutes “personal information”?

Any information about an identifiable person except basic “business card”
information

Module questions
1. Stare decisis is the obligation of courts to follow past decisions of courts at a higher level
2. A nonunionized worker was terminated. She should speak to her union to grieve the
matter? FALSE
3. An individual what must have the capacity what to enter into a contract
4. A Jamal entered into a contract with his employer, Eastern Ontario Furnace. The
contract stated that the contract will be completed when Jamal had installed 100
furnaces in the homes of clients. What type of contract have Jamal and the employer
entered into? fixed task.
5. The parol evidence rule states that the court will look exclusively at the terms of the
contract for interpretation.
6. Sumitra was employed for two years as a consultant. After a year of employment her
employer asked her to sign a new contract that included a non-competition agreement.
Sumitra signed the contract. Later that year she was approached by a competitor. Is the
new contract lead to be enforceable? No, there was a lack of mutual consideration.
7. A test for firefighter applicants required male and female applicants to run five
kilometres in 24 minutes. This an example of indirect discrimination.
8. John was looking to hire a full-time nanny babysitter for his three energetic active sons.
He placed a job advertisement on a website dated male caregiver preferred. Does this
discrimination qualify for an exception? No, he's hiring a caretaker for healthy children.
9. The court will never consider a termination clause in a fixed term contract
unenforceable. FALSE
10. The courts cap the notice period of non-managerial employees at 12 months – FALSE
11. An employee was notified that the employer was undergoing restructuring and the
employee’s position was eliminated. She was reassignment to a position that had a
location change and pay decrease. This change amounts to constructive dismissal –
False?
12. Compensatory damages are awarded to compensate for lost wages.
13. Administrative tribunals are used, instead of the traditional court system, to decide
employment related issues because the courts: are back-logged and lack expertise
14. Emilia worked 48 hours last week. Hourly wage is $15 According to the ESA what
compensation is she entitled to? She must be paid 1.5 times her wage for any hours
exceeding 44 hours. (15 x 1.5)(4 hours) + (44 hours) (15) = 750
15. An employer may assign the designated vacation time to an employee: Anytime so
long as the parties agree to vacation assignment that are taken in less than a week’s
time period.
16. The test advanced in Jones v. Tsige states:1) The conduct was unintentional (including
recklessness), 2)The invasion took place into the plaintiffs’ private affairs or concerns
without lawful justification 3)The invasion was highly offensive. - FALSE