Preliminary Matters for Employment Law (9:IV) - Revision history

LSLAP at 19:10, 13 October 2025

2025-10-13T19:10:15Z

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	{{REVIEWED LSLAP \| date= August ~~21, 2024~~}}		{{REVIEWED LSLAP \| date= 1 August 2025}}
	{{LSLAP Manual TOC\|expanded = employment}}		{{LSLAP Manual TOC\|expanded = employment}}
	== A. Determine Federal or Provincial Jurisdiction ==		== A. Determine Federal or Provincial Jurisdiction ==

LSLAP: /* C. Determine if the Employee is Unionized or Non-Unionized */

2025-10-01T03:27:00Z

C. Determine if the Employee is Unionized or Non-Unionized

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	If an employee is a union member and has a complaint regarding the employer, they must first advise the union’s representative. The employee can contact either the shop steward at the workplace, or an external union representative, to see what the union can and will do. The ''ESA'' provides minimum standards that generally must be met, but collective agreements will contain other critical guidelines that the employer must follow. Usually, union contracts contain different or more onerous terms than the ''ESA'' provisions, and union members in their collective agreements can contract out of ''ESA'' limitations (''ESA'', s 3) regarding such matters as hours of work, overtime, statutory holidays, vacations, vacation pay, seniority retention, recall, and termination of employment or layoff. Whole sections of the ''ESA'' might not apply under a collective bargaining agreement if they have been addressed by the agreement. The collective agreement does not necessarily have to meet minimum guidelines for certain sections of the ''ESA''. For more information consult the Employment Standards Keyword Index: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/keyword-index#C		If an employee is a union member and has a complaint regarding the employer, they must first advise the union’s representative. The employee can contact either the shop steward at the workplace, or an external union representative, to see what the union can and will do. The ''ESA'' provides minimum standards that generally must be met, but collective agreements will contain other critical guidelines that the employer must follow. Usually, union contracts contain different or more onerous terms than the ''ESA'' provisions, and union members in their collective agreements can contract out of ''ESA'' limitations (''ESA'', s 3) regarding such matters as hours of work, overtime, statutory holidays, vacations, vacation pay, seniority retention, recall, and termination of employment or layoff. Whole sections of the ''ESA'' might not apply under a collective bargaining agreement if they have been addressed by the agreement. The collective agreement does not necessarily have to meet minimum guidelines for certain sections of the ''ESA''. For more information consult the Employment Standards Keyword Index: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/keyword-index#C

	Unions have a duty to represent their workers fairly. An employee who feels their union has not fairly represented their interests or advanced a grievance can bring a complaint under section 12 of the ''Labour Relations Code''. These complaints are ~~seldom~~ successful, and so it is very important to have the employee document all requests for help to the union and document the union’s response.		Unions have a duty to represent their workers fairly. An employee who feels their union has not fairly represented their interests or advanced a grievance can bring a complaint under section 12 of the ''Labour Relations Code''. These complaints are rarely successful, and so it is very important to have the employee document all requests for help to the union and document the union’s response.

	== D. Determine if the Worker is an Employee or Independent Contractor ==		== D. Determine if the Worker is an Employee or Independent Contractor ==

LSLAP: /* B. Determine Applicable Legislation */

2025-10-01T03:26:22Z

B. Determine Applicable Legislation

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	The following section contains statutes that may apply to an employee with an employment-related legal issue. Once you have determined the jurisdiction, make note of which statutes apply to the employee, and then continue on to the next step in the checklist: [[Checklist for Employment Law (9:III)#A. Preliminary Matters \| Section IV.C: Unionized vs. Non-Unionized Employees]].		The following section contains statutes that may apply to an employee with an employment-related legal issue. Once you have determined the jurisdiction, make note of which statutes apply to the employee, and then continue on to the next step in the checklist: [[Checklist for Employment Law (9:III)#A. Preliminary Matters \| Section IV.C: Unionized vs. Non-Unionized Employees]].

	Note that this chapter focuses on provincial legislation. In cases where the employee is federally-regulated, this chapter can still be of assistance as the provincial and federal statutes have many similarities, but it will be necessary to read the federal statutes to determine whether a particular provision is similar.		Note that this chapter focuses on provincial legislation. In cases where the employee is federally regulated, this chapter can still be of assistance as the provincial and federal statutes have many similarities, but it will be necessary to read the federal statutes to determine whether a particular provision is similar.

	=== 1. The Employment Standards Act (ESA) ===		=== 1. The Employment Standards Act (ESA) ===

LSLAP: /* 3. Employees v. Contractors - Human Rights Code */

2025-09-28T20:36:49Z

3. Employees v. Contractors - Human Rights Code

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	Employment is more broadly defined under the ''HRC'' compared to the common law and the ''ESA''. It includes the relationships of master and servant, master and apprentice, and some principals and agents. In some cases it may extend to include workers who would, under the common law, are defined as dependent or independent contractors. Additionally, some volunteering relationships could potentially be considered employment relationships, or alternately could be covered under s 8 of the ''HRC'' (provision of services).		Employment is more broadly defined under the ''HRC'' compared to the common law and the ''ESA''. It includes the relationships of master and servant, master and apprentice, and some principals and agents. In some cases it may extend to include workers who would, under the common law, are defined as dependent or independent contractors. Additionally, some volunteering relationships could potentially be considered employment relationships, or alternately could be covered under s 8 of the ''HRC'' (provision of services).

	The four factors that most strongly determine whether a worker is an “employee” for the purpose of the ''HRC'' are (''Ismail v British Columbia (Human Rights Tribunal)'', 2013 BCSC 1079, at para 265):		The four factors that most strongly determine whether a worker is an “employee” for the purpose of the ''HRC'' are (''[https://canlii.ca/t/fzchz Ismail v British Columbia (Human Rights Tribunal)]'', 2013 BCSC 1079, at para 265):

	*Whether the employer utilized, or gained some benefit, from the worker		*Whether the employer utilized, or gained some benefit, from the worker
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	*Whether the employer has the ability to remedy any discrimination		*Whether the employer has the ability to remedy any discrimination

	The Canadian Human Rights Tribunal also uses a broader definition of employment compared to the common law; see ''Canadian Pacific Ltd v Canada (Human Rights Commission)'', [1991] 1 FC 571 (CA), at paras 9-15.		The Canadian Human Rights Tribunal also uses a broader definition of employment compared to the common law; see ''[https://ca.vlex.com/vid/cdn-pacific-ltd-v-681521217 Canadian Pacific Ltd v Canada (Human Rights Commission)]'', [1991] 1 FC 571 (CA), at paras 9-15.

	=== 4. Employees v. Contractors – Workers Compensation ===		=== 4. Employees v. Contractors – Workers Compensation ===

LSLAP: /* 2. Employees v. Contractors - Employment Standards Act */

2025-09-28T20:34:35Z

2. Employees v. Contractors - Employment Standards Act

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	The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. The following test for distinguishing between employees and contractors should be used when pursuing a claim at the Employment Standards Branch (which administers and enforces matters covered by the ''ESA'').		The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. The following test for distinguishing between employees and contractors should be used when pursuing a claim at the Employment Standards Branch (which administers and enforces matters covered by the ''ESA'').

	“Employee” is defined in the ''ESA'', s 1. The Employment Standards Branch has published a factsheet to assist in determining the difference between employees and independent contractors. It can be found at:		“Employee” is defined in the ''ESA'', s 1. The Employment Standards Branch has published a factsheet to assist in determining the difference between employees and independent contractors for the purposes of the ''ESA''. It can be found at:

	https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/employee-or-independent-contractor		https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/employee-or-independent-contractor

LSLAP: /* 1. Employees vs. Contractors - Common Law */

2025-09-28T20:32:21Z

1. Employees vs. Contractors - Common Law

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	*The worker signs an agreement that identifies them as a contractor. (Section 4 of the ''ESA'' states that you cannot contract out of the Act. . Those who sign an independent contractor agreement must still meet that definition);		*The worker signs an agreement that identifies them as a contractor. (Section 4 of the ''ESA'' states that you cannot contract out of the Act. . Those who sign an independent contractor agreement must still meet that definition);
	*The worker charges sales tax (the worker may or may not be in a lawful position to charge sales tax);		*The worker charges sales tax (the worker may or may not be in a lawful position to charge sales tax);
	*The worker is incorporated (per ''Marbry Distributors Limited v Avrecan International Inc'', 1999 BCCA 172). However, the worker may wish to see an accountant or tax lawyer if they are an incorporated employee as they may not be entitled to all of the same tax benefits of other corporations;		*The worker is incorporated (per ''[https://ca.vlex.com/vid/marbry-v-avrecan-intl-681351789 Marbry Distributors Limited v Avrecan International Inc]'', 1999 BCCA 172). However, the worker may wish to see an accountant or tax lawyer if they are an incorporated employee as they may not be entitled to all of the same tax benefits of other corporations;
	*No deductions are taken from the worker’s paycheque (though this may actually just indicate that the employer is in violation of both the ''ESA'' and the ''Income Tax Act'');		*No deductions are taken from the worker’s paycheque (though this may actually just indicate that the employer is in violation of both the ''ESA'' and the ''Income Tax Act'');
	*The worker submits a “bill” for labour (it may be nothing more than a time card); and		*The worker submits a “bill” for labour (it may be nothing more than a time card); and

LSLAP: /* 3. The Human Rights Code (HRC) */

2025-09-28T20:30:19Z

3. The Human Rights Code (HRC)

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	=== 3. The Human Rights Code (HRC) ===		=== 3. The Human Rights Code (HRC) ===

	Provincially regulated employees are covered by the ''British Columbia Human Rights Code (HRC)''. Federally regulated employees are covered by the ''Canada Human Rights Act''. For more information on Human Rights claims, see ''[[Introduction to Human Rights (6:I)\|Chapter 6: Human Rights]]''.		Provincially regulated employees are covered by the ''British Columbia Human Rights Code (HRC)''. Federally regulated employees are covered by the ''Canada Human Rights Act''. For more information on Human Rights claims, see [[Introduction to Human Rights (6:I)\|Chapter 6: Human Rights]].

	=== 4. Common Law and Contract Law ===		=== 4. Common Law and Contract Law ===

LSLAP: /* 3. The Human Rights Code (HRC) */

2025-09-28T20:30:04Z

3. The Human Rights Code (HRC)

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	=== 3. The Human Rights Code (HRC) ===		=== 3. The Human Rights Code (HRC) ===

	Provincially regulated employees are covered by the ''British Columbia Human Rights Code (HRC)''. Federally regulated employees are covered by the ''Canada Human Rights Act''. For more information on Human Rights claims, see Chapter 6: Human Rights.		Provincially regulated employees are covered by the ''British Columbia Human Rights Code (HRC)''. Federally regulated employees are covered by the ''Canada Human Rights Act''. For more information on Human Rights claims, see ''[[Introduction to Human Rights (6:I)\|Chapter 6: Human Rights]]''.

	=== 4. Common Law and Contract Law ===		=== 4. Common Law and Contract Law ===

LSLAP: /* B. Determine Applicable Legislation */

2025-09-28T20:29:27Z

B. Determine Applicable Legislation

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	=== 3. The Human Rights Code (HRC) ===		=== 3. The Human Rights Code (HRC) ===

			Provincially regulated employees are covered by the ''British Columbia Human Rights Code (HRC)''. Federally regulated employees are covered by the ''Canada Human Rights Act''. For more information on Human Rights claims, see Chapter 6: Human Rights.

			=== 4. Common Law and Contract Law ===

	In addition to statutory entitlements, provincially and federally regulated employees have common law employment entitlements. Causes of action, such as breach of contract due to wrongful dismissal, remain the same whether the employee is provincially or federally regulated.		In addition to statutory entitlements, provincially and federally regulated employees have common law employment entitlements. Causes of action, such as breach of contract due to wrongful dismissal, remain the same whether the employee is provincially or federally regulated.

LSLAP: /* 2. The Labour Relations Code and the Canada Labour Code (LRC and CRC) */

2025-09-28T20:27:43Z

2. The Labour Relations Code and the Canada Labour Code (LRC and CRC)

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	Provincially regulated employees who belong to a union are covered by the ''Labour Relations Code'' in addition to the ''ESA''. However, some parts of the ''ESA'' do not apply to unionized employees.		Provincially regulated employees who belong to a union are covered by the ''Labour Relations Code'' in addition to the ''ESA''. However, some parts of the ''ESA'' do not apply to unionized employees.

	Federally regulated employees are covered by the ''Canada Labour Code'' [CLC]. A significant difference between the CLC and the ESA is that the CLC confers a special right: If the employee is non-managerial, worked for at least one year, and was unjustly dismissed, their job can be reinstated (CLC, ss 240-246). This right exists alongside several other discretionary remedies for unjust dismissal under the CLC. A complaint must be filed within 90 days (CLC, s 240(2)).		Federally regulated employees are covered by the ''Canada Labour Code'' [CLC]. A significant difference between the CLC and the ''ESA'' is that the CLC confers a special right: If the employee is non-managerial, worked for at least one year, and was unjustly dismissed, their job can be reinstated (CLC, ss 240-246). This right exists alongside several other discretionary remedies for unjust dismissal under the CLC. A complaint must be filed within 90 days (CLC, s 240(2)).

	For a discussion on the significance of the discretionary remedies for unjust dismissal available under the CLC, see the Supreme Court of Canada’s decision in ''Wilson v. Atomic Energy of Canada Ltd.'', 2016 SCC 29.		For a discussion on the significance of the discretionary remedies for unjust dismissal available under the CLC, see the Supreme Court of Canada’s decision in ''Wilson v. Atomic Energy of Canada Ltd.'', 2016 SCC 29.