Overview of Legal Framework

• Author: Netta Romano
• Pages: 1-27

1

Overview of Legal

Framework

1

Learning Outcomes

After completing this chapter, you will be able to:

• Identify the role of licensed paralegals in the provision

of legal services relating to labour and employment law.

• Identify and describe the key sources of employment

law and know where to find them.

• Understand the judicial framework within which

labour and employment law is regulated.

• Define the nature of diverse employment relationships.

Introduction ........................ 2

Sources of Employment Law ........... 3

Statute Law ....................... 4

Constitutional Law .................. 9

Common Law ...................... 15

Judicial Framework .................. 18

The Court System ................... 18

The Administrative System ............ 19

Decision-Making Processes Under

Ontario’s Employment Statutes ...... 20

Defining the Employment Relationship .. 21

Independent Contractors, Dependent

Contractors, and Employees ........ 21

Agents ........................... 25

Further Reading ..................... 26

Related Websites .................... 26

Key Terms .......................... 26

Review Questions ................... 26

Discussion Questions ................. 27

© 2022 Emond Montgomery Publications. All Rights Reserved.

2 EMPLOYMENT LAW FOR PARALEGALS

Introduction

In 2007, the Law Society of Ontario

1 began licensing and regulating paralegals in Ontario,

similar to the regulation of lawyers, under the authority of the Access to Justice Act, 2006.

2

While the Act did not provide a denition of the term “access to justice,” it did reference

its purpose as the promotion of access to justice and required the Law Society to govern in

accordance with the principles of maintaining and advancing the cause of justice.

3

To become a licensed paralegal, a person is required to successfully complete a

program of study at an accredited post-secondary institution, be of “good character,”

and successfully complete the licensing examination administered by the Law Society.

Once licensed, paralegals have a limited scope of practice under Law Society of

Ontario By-Law 4 to provide “legal services” in certain enumerated areas, including

proceedings in the Small Claims Court, in the Ontario Court of Justice under the

Provincial Offences Act,

4 and before a tribunal established under an act of the Ontario

Legislature or an act of Parliament. Within the permitted scope of practice, licensed

paralegals may give a party advice on their legal interests, rights, or responsibilities

with respect to a proceeding or the subject matter of a proceeding, prepare all neces-

sary documentation, and negotiate on the party’s behalf.

5 Paralegals are subject to

the Law Society’s rules of conduct, by-laws, and guidelines regarding ethical behav-

iour and professional practice in the same fashion as lawyers.

With those parameters in mind, licensed paralegals are permitted to assist a person

in the following areas of labour and employment law:

• a Human Rights Code application before the Human Rights Tribunal of Ontario,

• an employment standards complaint with the Ministry of Labour,

• a wrongful dismissal claim in Small Claims Court,

• representation before the Workplace Safety and Insurance Board and the

Workplace Safety and Insurance Appeals Tribunal,

• an appeal to the Ontario Labour Relations Board,

• grievance arbitration in unionized workplaces, and

• the prosecution or defence of a regulatory proceeding under the Provincial

Offences Act.

Licensed paralegals may also assist a person in federally regulated industries

(described below) before federal bodies with authority to enforce human rights,

employment standards, and labour relations.

This text has been written for paralegals who are licensed by the Law Society of

Ontario and who provide legal services in the area of labour and employment law.

To effectively help a client, whether employer or employee, a paralegal must be able

to (1) dene the relationship and (2) identify the regulatory regime(s) under which it

1 On January 1, 2018 the Law Societ y of Upper Canada became the La w Society of Ontario.

2 SO 2006, c 21 – Bill 14 [AJA].

3 Ibid, s 4.2.

4 RSO 1990, c P.33.

5 Law Society of O ntario, By-Law 4 (amendment s current to 2 March 2021), online: <https://www.lso.ca/about-lso/

legislation-rules/by- laws>, s 6.

© 2022 Emond Montgomery Publications. All Rights Reserved.