Why is my daycare closed if I have to go to work? Perhaps nowhere else in Ontario is the effect federalism felt more acutely than in Ottawa. According to statistics from the City of Ottawa, a full 18.2% of the city’s GDP is derived from the federal public service; second only to high tech.
Practically speaking, what this means is that on the third Monday of every February, federal public servants are expected to be at work while their daycares shutter their doors. So what gives?
The regulation of employment standards in Canada is complicated and confusing. Both the federal and provincial governments have the legal ability to regulate employment, but only within their own, separate spheres of influence. The power is divided; not shared. This division of powers can result in confusion and debate as to exactly which set of laws govern the workplace.
The debate is not wholly academic. For example, in Ontario “Family Day”, being the third Monday in February, is prescribed as a public holiday for the purpose of the definition of “public holiday” in section 1 of the Ontario Employment Standards Act, 2000. Family Day is a ‘statutory holiday,’ but only for employees whose employment is subject to that statutory law. Not all employees who work in Ontario are subject to the Ontario Employment Standards Act, 2000; some workers are subject to the provisions of the Canada Labour Code.
Deciding which statute applies to the employment relationship can be a frustrating exercise. More than once employers and employees have found themselves before Canada’s highest court seeking direction as to which law is to apply. The 2009 decision of the Supreme Court of Canada in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, [2009] 3 SCR 407, 2009 SCC 53 (CanLII) is a paradigmatic example of such a case.
The purpose of this page is to attempt to provide an overview as to the division of powers and which law may apply. The page should be read with caution, as resolving which law applies can be much more complicated than it first appears. A reading of the Consolidated Fastfrate decision should disabuse anyone of the notion that this is a straightforward issue. Employers and employees uncertain as to which employment standards legislation applies to their situation would be prudent to seek a formal opinion on the subject before acting.
