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52 N O V E M B E R / D E C E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m to determine whether the plaintiff, during his first 21 years work- ing for the employer, had been an independent contractor, a dependent contractor "or, if he morphed from the former to the latter" — the first five test questions were listed as: 1. Whether the agent was largely limited exclusively to the ser- vice of the principal; 2. Whether the agent was subject to the control of the prin- cipal, not only as to the product sold but also as to when, where and how it was sold; 3. Whether the agent had an investment in or interest in the tools necessary to perform his service for the principal; 4. Whether by performing his duties the agent undertook risk of loss or possibility of profit apart from his fixed-rate remu- neration; 5. Whether the agent's activity was part of the principal's busi- ness organization. In other words, "whose business was it?" Those are five tests common to most judicial analyses of a worker's employment status, Charney says. However, the B.C. Supreme Court added two more factors in Glimhagen, which drew on the B.C. Court of Appeal's decision in TCF Ventures Corp. v. The Cambie Malone's Corporation. Those were: Whether the relationship was long-standing — the more permanent the term of service the more dependent the con- tractor; and Whether the parties relied on one another and closely co- ordinated their conduct. "Number 6 is interesting because it has a temporal aspect," Charney says. "If it's fleeting and temporary," it may be a con- tractual relationship or that of an employer with an indepen- dent contractor. "But if it's more a long-term and permanent relationship, it's probably more one of employment" or employ- er/dependant contractor. In Glimhagen, the plaintiff was found to have had a 12-year period of service as a dependent contrac- tor and employee and was awarded $78,000 in damages for breach of contract. And in the age of the piecemeal/Uber economy, Charney says, he has noted more litigation in Canada and elsewhere. Class action lawsuits have been launched recently by con- tractors who range from lawyers to car drivers, notably against Deloitte Management Services and Uber Technologies. Andrew Monkhouse of Monkhouse Law in Toronto is one of the coun- sel representing plaintiffs in Sondhi v. Deloitte Management Services LP, a class action in which plaintiffs were contractors working for a company called ATD Legal Services, which pro- vided document review for law firms. "There's been more of a movement toward outsourcing [these functions] in the industry," says Monkhouse. After ATD was purchased by Deloitte, the legal document reviewers launched a class action lawsuit to be declared employ- ees instead of independent contractors and sought compensation for unpaid vacation, unpaid statutory holiday pay and unpaid overtime. Justice Paul Perell of the Ontario Superior Court of L E G A L R E P O R T © 2018 Thomson Reuters Canada Limited 00253ET-92687-NK Expert guidance on will challenges in Ontario Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # L7798-8636- 65203 $207 Hardcover approx. 496 pages July 2018 978-0-7798-8636-4 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. At what stages can a will be attacked in Ontario? What is involved with bringing or defending a challenge to a will's validity? Let two well-respected lawyers with extensive knowledge and litigation experience guide you through the procedural steps involved. Challenging the Validity of Wills, Second Edition is a unique publication that focuses exclusively on the law of will challenges in Ontario. It provides you with a detailed understanding of the processes and court forms associated with contentious and non- contentious proceedings. • Gain insight on topics concerning the validity of the will, such as how to apply concepts of mental capacity to practice, the principles of negligence, estate information returns, and unjust enrichment • Save time and work effort using the book's precedents for guidance and the prescribed court forms associated with the Ontario rules New in this edition Thoroughly updated, this edition contains eight new chapters covering a wide range of topics, and reflects a nuanced understanding of the practical effect of estate rules 74 and 75 of the Rules of Civil Procedure. New Edition Challenging the Validity of Wills, Second Edition Ian M. Hull, B.A. (Hons), LL.B., and Suzana Popovic-Montag, B.A. (Hons), LL.B.

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