BLAW 2911: Commercial Law 1
TRU Open Learning
Assignment 3 Scenario
Mindy is an engineer who has recently been hired by a power generation facility
located in Kelowna, BC. Mindy is told that she is being hired as an independent
contractor and not an employee. She is made to sign a contract stating that she is an
independent contractor but that her work activities are under the full control of her
supervisors at the plant. Mindy is given an office, regular working hours, regular
salary, and she is told to report to her supervisor for instructions.
After two months on the job, Mindy is unhappy with her working conditions. She
has noted several issues with her workplace, including hazardous work conditions,
unpaid overtime, and harassment from her superiors. She begins to discuss the
concept of unionization with her fellow workers, and her colleagues decide to begin
to gather signatures for a unionization vote.
On hearing about these activities, the owner of the plant tells Mindy that her hours
have been cut back, and her office has been moved to the basement. He also tells her
that if she continues her union activities, she will be fired. The owner reminds her
that she is an independent contractor. Mindy continues her union organizing
activities, and she is subsequently called into her supervisor’s office. Her supervisor
explains that her contract is being terminated, and she must leave the premises
immediately.
Advise Mindy as to her legal position, taking care to analyze any legal issues that
you can identify, and provide your opinion as to the likely outcome of any legal
action that Mindy may be able to launch against the company.
Assignment 3: Employment and Labour - Spot the Issue(s)
Spot the Issue Assignments
A spot the issues question presents you with a
ief scenario and asks you to identify any legal issues as well as provide your opinion on how the legal issue may be resolved.
Use the IRAC formula to work through the scenario. The IRAC formula presents a structured way for you to organize your thinking and your answer to spot the issue(s) questions.
The IRAC Formula
The method you will use to answer spot the issue(s) questions in this course is known as the IRAC formula. The IRAC formula presents a structured way for you to organize your thinking and your answer. The formula contains the following steps:
Set out your assignments under the following headings:
Facts
Bullet points are all we are looking for here. Do not include any conclusions in your facts. This section simply requires you to pick out the main facts from the question and re-state them.
Issues
With respect to issues, I recommend that you frame these as questions. For example if the assignment was a case about a potential
each of fiduciary duty (I'm not saying any of the assignments are, this is just an example to illustrate) you would say something like:
1. Did the defendant owe the plaintiff a fiduciary duty?
a. Was the defendant uniquely vulnerable to the plaintiff's unilateral exercise of discretion?
2. Did the defendant
each his/her fiduciary duty?
a. Did the defendant exercise his/her discretion in such a way as to cause loss to the plaintiff?
3. What remedy, if any, is the plaintiff entitled to?
a. Is the plaintiff entitled to an injunction?
. Is the plaintiff entitled to damages?
i. If "yes", how are the damages calculated?
Then repeat each one of these questions, and answer each one, in the analysis section.
Rule
For the rule section - you should not write full sentences, and you should not explain or apply the rule here. Write this section out in bullet points, or a numbered list - not full sentences.
Start with the
oadest legal rule that applies (1) and then na
ow down to all the su
ules that apply (a, b, c) to that
oad rule (1) that you will have to consider. Repeat for additional legal rules, if necessary.
Here's the kicker: if you don't identify all the right issues or the right rules, you cannot possibly get full marks on the analysis section.
Analysis
In this section you should use headings that match your numbered issues. Apply the rules you have identified in the rules section (don't
ing up new ones here!) to the relevant facts stated in your facts section to answer the questions you have set out as issues in your issues section.
This section requires full sentences and should form the majority of your assignment. This is where you explain how the rule (or law) works in this particular situation.
Conclusion
Write a
ief recap that summarizes your answers in the analysis section. Don't raise or answer new issues here! This section should also be written in full sentences.
The IRAC formula is used in the grading ru
ic for all of the “spot the issue(s)” assignments.
Instructions
1. Read the attached case scenario carefully.
1. Once you have read the scenario, advise Mindy as to her legal position taking care to analyze any legal issues that you can identify and providing your opinion as to the likely outcome of any legal action that Mindy may be able to launch against the company.
2. Your answer should be approximately 1,500 words in length. Use 12-point, Times New Roman font.
3. Thoroughly address all of the steps in the IRAC formula providing complete explanations for each issue.
Writing Guidelines
Use legal referencing when citing any material from the course readings (this includes both paraphrasing and direct quotes). Use the following online guides to format your citations to the McGill Guide: The Canadian Guide to Uniform Legal Citation style:
· University of Toronto (Bora Laskin Law Li
ary) Legal Citation
· Queen’s University Legal Citation
Thompson Rivers University
Te
ance P Power
BLAW 2911_SW4 - Commercial Law (Winter 2019)
Jessica Giancola
T XXXXXXXXXX
Assignment 3: Employment and Labour
05-FEB-2020
Facts:
1. Mindy is an engineer who has recently been hired by a power generation facility located in Kelowna, BC.
2. Mindy is told that she is being hired as an independent contractor and not an employee.
3. She is made to sign a contract stating that she is an independent contractor but that her work activities are under the full control of her supervisors at the plant.
4. Mindy is given an office, regular working hours, regular salary, and she is told to report to her supervisor for instructions.
5. After two months on the job, Monday is unhappy with her working conditions. She has noted several issues with her workplace, including hazardous work conditions, unpaid overtime, and harassment from her superiors.
6. She begins to discuss the concept of unionization with her fellow workers, and her colleagues decide to begin to gather signatures for a unionization vote.
7. On hearing about these activities, the owner of the pant tells Mindy that her hours have been cut back, and her office has been moved to the basement.
8. He also tells her that if she continues her union activities, she will be fired. The owner reminds her that she is an independent contractor.
9. Mindy continues her union organization activities, and she is subsequently called into the supervisor's office.
10. Her supervisor explains that her contract is being terminated and she must leave the premises immediately.
Issues:
1. What is Mindy’s status vis à vis the defendant?
2. Is Mindy entitled to engage in unionization activities in the workplace?
3. Damages for
each of contract against the defendant?
4. Is Mindy entitled to reasonable notice from the defendant?
Rules:
1. Employee versus independent contractor
2. Labour Relations Code: unfair labor practices
3. Workers Compensation Act: Occupational Health and Safety
4. Employment Standards Act
5. Canada Labour Code
Analysis:
[1] There is no clearly defined distinction between an employee versus independent contractor relationships. Only based on the specific situation can the court determine what type of relationship exists. Factors involved in Mindy's case regarding this matter include:
· Work activities are under the full control of her supervisors at the plant
· Mindy is given an office;
· Regular working hours;
· Regular salary;
· And she is told to report to her supervisor for instructions.
· Dorothy DuPlessis, Shannon O’Byrne, Philip King, Lo
ie Adams, Steven Enman, Canadian Business and The Law, 6th ed., Loose Leaf Edition: ISBN-13: XXXXXXXXXX, ISBN-10: XXXXXXXXXX, (Nelson Education, 2017), at p 506:
“The distinction between an employee and an independent contractor is not always readily apparent…Historically, the courts have used a variety of tests to distinguish between the two relationships, including the following:
· The degree of control exercised over the individual by the employe
· The ownership of tools, the chance of profit, and the risk of loss from the performance of the requested service.
· The degree of integration
…there is no one conclusive test that can be universally applied. The nature of a relationship is a question of fact and will vary with the situation.”
· Wood J. in Doyle v. London Life Insurance Co. (1984), 1985 CanLII 301 (BC CA), 25 A.C.W.S. (2d) 369, [1984] B.C.J. No XXXXXXXXXXS.C.), aff’d 23 D.L.R. (4th) 443 (C.A.) which was cited and applied more recently in Brown v. Western Legal Publications, 1998 CanLII 4852 (BC SC), [1998] B.C.J. No. 223 (S.C.) at para. 9:
· Whether or not the agent was limited exclusively to the service of the principal;
· Whether or not the agent is subject to the control of the principal, not only as to the product sold but also as to when, where and how it is sold;
· Whether or not the agent has an investment or interest in what is characterized as the "tools" relating to his service;
· Whether or not the agent has undertaken any risk in the business sense or, alternatively, has any expectation of profit associated with the delivery of his service as distinct from a fixed commission;
· Whether or not the activity of the agent is part of the business organization of the principal for which he works. In other words, whose business is it?
[2] Mindy begins to formate signatures for a unionization vote amongst her colleagues after realizing her unhappiness in the workplace. After becoming aware of Mindy's activities, the owner approaches Mindy and threatens her employment. Mindy continues her activities and is subsequently terminated. According to the Labour Relations Code, terminating Mindy for these activities goes against the owner's legal capabilities, and violates is employee's legal rights.
· Labour Relations Code, RSBC1996, c 244, s 6:
Unfair labor