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When worlds collide – The evolution of employment law principles in the termination of independent contractor relationships

To my mind, what Barresi demonstrates is that the line between employment law principles and “independent contractor” commercial law principles continues to blur. As the nature of what it means to be “employed” continues to evolve, so too must the law.

 

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So what exactly is a “dependent contractor”?

I have often commented on the widespread misclassification of workers and, more specifically, the common practice of treating a worker as an Independent Contractor when they are really an employee in all but name.

 

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Work is work: Duration of dependent contractor status to be included in notice calculations

In the recent decision of Cormier v. St. Joseph Communications, the Court of Appeal upheld a motion judge’s finding that when calculating reasonable notice periods, an employee is entitled to include the duration of time they were an dependent contractor. This case highlights the risks posed by evolving employment relationships and the importance of drafting legally defensible termination clauses.

 

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Exclusive or near-exclusive economic dependence determinative of dependent contractor status: Ontario Court of Appeal

Between employees and independent contractors exists a third, lesser known category of employment relationship: the dependent contractor. Unlike independent contractors, and subject to specific contractual termination provisions, dependent contractor relationships cannot generally be terminated without notice, or pay in lieu thereof.

 

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Common law reasonable notice of termination for independent contractors?

In the recent decision in Cormier v 1772887 Ontario Limited, an Ontario Superior Court judge stated that in some circumstances it would be reasonable to consider an employee’s years of service as an independent contractor in calculating his or her common law reasonable notice period.

 

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Claiming constructive dismissal as an independent contractor

Can independent contractors claim damages for constructive dismissal? In a decision released March 7, 2018 by the Ontario Superior Court of Justice, Barresi v Jones Lang LaSalle Real Estate Services, Inc., 2018 ONSC 837, the answer to that question was essentially yes. Facts The case concerned a commercial real estate broker, Barresi, who was retained […]

 

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Divisional court finds employer demonstrated bad faith and acted as “puppeteer” in wrongful termination case of fixed-term independent contractor

The recent case of Radikov v. Premier Project Consultants Ltd et al. is a cautionary tale of the importance of good faith in consulting contracts after the Ontario Superior Court of Justice dismissed Premier’s appeal, finding Premier had acted as a “puppeteer” by keeping Mr. Radikov at its “beck and call” before terminating his fixed term contract two days before completion and refusing to pay the outstanding fixed-term contract price.

 

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Dependent contractor receives 12 months pay in lieu of notice

The recent Supreme Court decision of Glimhagen v. GWR Resources Inc., 2017 BCSC 761, illustrates how an independent contractor can become a dependent contractor – an intermediate category on the spectrum between employee and independent contractor.

 

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Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with: Wages by occupation, 2016; The risks of mischaracterizing an employee as an independent contractor; and Employer ordered to pay over $53,000 for unpaid general holiday and vacation pay.

 

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Using independent contractor not a “get out of jail free” card

Learn the Latest at the Ontario Employment Law Conference

A business’ obligations to its workers will depend on whether the workers are employees or independent contractors. However, a recent decision reminds us that, even where a worker is a true independent contractor, this distinction may not preclude a business being liable to third parties, such as customers, when the worker does something wrong.

 

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Employee awarded $50,000 in punitive damages in wrongful dismissal claim

The Ontario Superior Court of Justice recently awarded an employee $50,000 in punitive damages in a wrongful dismissal claim because it was “rationally required” to punish the employer for its behaviour toward the employee and to meet “the objectives of retribution, deterrence, and denunciation”.

 

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Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with: Meal and vehicle rates used to calculate travel expenses for 2016; important changes to form RC59 coming; and case about employee who was awarded punitive damages in dismissal claim.

 

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Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with: The Federal government`s introduction of legislation for a stronger Canada Pension Plan and a more secure retirement for Canadians; a case where the Ontario Labour Relations Board had to decide whether a worker was an employee, and not an independent contractor, as under the Employment Standards Act, 2000; employer compensation budgets for 2017.

 

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Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with: a case that looks at employment relationships, particularly between dependent and independent contractors; a case that looks at workplace accommodation for an employee who uses medical marijuana; and proposed amendments to Ontario legislation in relation to the public use of e-cigarettes and medical marijuana, that would have a variety of impacts on the public, businesses, and employers.

 

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Employee or contractor? That is the $64,000 question

For over 25 years, clients have been asking me whether a person is an employee or a contractor in various legal contexts.

 

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