Preliminary Issues your Lawyer Needs to Know
In order to review your case, an employment lawyer will need to know a number of things, including the following:
1. Is the employee within provincial jurisdiction, or federal jurisdiction?
The Constitution Act, 1867 (s. 91 and 92) determines which areas are federally and provincially regulated.
Examples of federally regulated industries include banks, telecommunications, and transportation that goes outside provincial boundaries (eg chartered banks, airlines, trains, railways, couriers, inter-provincial pipelines, moving & trucking companies, railways, radio, television and cable stations, post offices, and grain elevators)
2. Is the employee working in a unionized environment? If so, is there a collective agreement? Is the employee in the bargaining unit covered by the collective agreement? If so, the lawyer will need to see the collective agreement along with certain other documents.
3. Is the worker’s true legal status an “employee” or an “independent contractor”? The terminology used by the parties may or may not be consistent with the legal relationship. The lawyer will need to see the contract and learn more about the day to day work and the relationship.
4. If the worker is an employee, is the individual exempt from the ESA, under the ESA Regulations?
5. The limitation dates that apply.
6. Are there any written contracts, employment policies, or other documentation relating to the employment that apply to the worker? If so, the lawyer will need to see them.
7. Are there any potential human rights issues? If so, the lawyer will need details.
8. In cases of dismissal, is the employer alleging cause? If so, on what basis, and based on what facts? Has a severance payment been offered, and if so, in what amount? The lawyer will also need to see the relevant paperwork.
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