w w w . c a n a d i a n l a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 8 51
not full time and have a couple of employers, that doesn't mean
you're an independent contractor."
An employee is, broadly speaking, someone employed for
wages or salary under a contract of employment, who is under
the control of the employer and has an implied term of reasonable
notice if their services are terminated.
In contrast, a plumber who shows up to your house to do a
job and then invoices you for that work is a classic example of
the independent contractor, says Barry Fisher, a mediator and
arbitrator of employment and labour relations matters in Toronto.
But, some time around the early 1920s, he says, a new cat-
egory emerged — that of the mercantile agent. This was a person
appointed by those in business to act on their behalf or to repre-
sent them in dealing with other persons. The understanding in
law that developed around mercantile agents was that they were
not employees, but they were still entitled to notice of termina-
tion.
Today, says Fisher, the "implied term is dependent contrac-
tor" and those relationships may only be terminated on reason-
able notice. Although at one time a dependent contractor could
be given less notice than an employee, "that is no longer good
law," he adds, citing the Court of Appeal for Ontario decision
Keenan v. Canac Kitchens Ltd., which found that the plaintiffs
in the case — one of whom had worked for the company for 33
years — had been dependent rather than independent contrac-
tors and as such were entitled to reasonable notice (which the
trial judge fixed at 26 months' notice for both plaintiffs, upheld
on appeal).
For contractors, however, the doctrine of reasonable notice
can be offset by reasonable language in the contract; this does
not apply to employees, for whom the minimum requirements
of notice under employment standards legislation must be met,
Fisher notes. Under the Canada Labour Code, he adds, depen-
dent contractors are considered employees, though federal
labour standards apply only to federally regulated employers and
employees.
In Ontario, The Changing Workplaces Review, which resulted
in Bill 148 to amend the Employment Standards Act, stopped
short of integrating dependent contractors into the definition
of "employee" in the provincial Employment Standards Act.
"Ontario had an opportunity to do it right and didn't," says Fisher.
Charney notes that case law suggests a dependent contractor
might have a diminished entitlement compared to an employee in
the event of termination.
He notes two decisions, one from British Columbia and one
from Ontario, that established tests for whether a worker is an
employee or a contractor. Glimhagen v. GWR Resources Inc., writ-
ten by Justice Peter Rogers of the B.C. Supreme Court, sets out a
seven-part test, while the Ontario Court of Appeal's decision in
McKee v. Reid's Heritage Homes Ltd. looked at five factors.
The first five questions were common to both the B.C. and
Ontario approach, says Charney. In Glimhagen — which sought
L E G A L R E P O R T
Untitled-5 1 2018-07-18 12:02 PM
