Time Spent as Independent Contractor Relevant Factor in Calculating Reasonable Notice

Is the amount of time spent as an “independent contractor” an appropriate fact for the court to consider when calculating the reasonable notice period if the worker later becomes either a true employee or dependant contractor?

In Cormier v. 1772887 Ontario Limited c.o.b. as St. Joseph Communications, 2019 ONSC 587 (CanLII), affirmed by the Court of Appeal for Ontario in Cormier v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965 (CanLII), Justice Paul Perell held that, it would be wrong in principle to ignore those years of the relationship in determining the reasonable notice period.

The case is an important read for those who may elect to start their relationship one way, but then change it over time.

When Worlds Collide – The Evolution of Employment Law Principles in the Termination of Independent Contractor Relationships

It is remarkable how much the law can change in as little as 14 years. In 2005, Justice Kathryn N. Feldman authored reasons for decision on behalf of the Court of Appeal for Ontario in the case of 1193430 Ontario Inc. v. Boa-Franc Inc., 2005 CanLII 39862 (ON CA). The essential holding of that case is that, “Employment law concepts such as just cause should not be imported into commercial law context to govern distributorship agreements.”

14 years later, in the case of Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884 (CanLII), the two worlds could not be more intertwined.

ONCA says Uber's Arbitration Clause is both Illegal and Unconscionable

Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?

In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.

Why does one think this ride isn’t over yet?

Unfettered Right to Terminate Contract Must be Exercised in Good Faith: ONCA

If one party to a contract has the “facially unfettered right to terminate the contract”, must that party exercise its right to terminate the contract only in good faith?

In the case of Mohamed v. Information Systems Architects Inc., 2018 ONCA 428, Ontario’s top court answered that question with a “yes” – the unfettered right must be exercised in good faith.

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.

Why Even if You Couldn’t Pay Me to Cheer for the Buffalo Bills, the Buffalo Bills’ Cheerleaders Deserve to be Paid as Employees.

"You could not pay me to cheer for the Buffalo Bills." The same is a reasonable position taken by a number of football falls. But what about the Buffalo Bills cheerleaders, the “Buffalo Jills” (seriously, that’s what they are called), should they be paid for cheering at Buffalo Bills home games?

In a continuing class action lawsuit brought by a number of former “Jills” against the team, (and others including the NFL), the plaintiffs allege that they were subject to incredibly stringent, if not downright ridiculous conditions of employment, such that the team’s position that the Jills were “independent contractors” was wrong. The Jills claim wage theft.

In an opinion released January 5, 2016, and available online at Ferrari v Mateczun et al., Index No. 804125-2014, the Honorable Timothy J. Drury, Erie County, New York, Supreme Court Judge held that the case could proceed as a class action. Express in the same is that the judge had found that the Jills were, in fact, employees and not independent contractors.

At last it would appear that the Buffalo Jills have something to cheer about.

The Not-So-Independent Contractor

From 2000-2006, there was a television program called “Malcolm in the Middle.” The show was called as much because the lead subject was the middle child of three: Malcolm. The theme song for the show ended with the line “life is unfair.” But is life truly unfair for those caught in the middle?

The purpose of this post is to consider the middle category of employment; those who are neither true employees but are not exactly independent contractors either: the intermediate position of “dependent contractor”.

As this post will hopefully demonstrate life is not always unfair to those who find themselves ‘in the middle.’

Independent Contractors and Employees on Contract – Understanding the Semantics of Ontario Employment Law

The modern English language is a powerful tool. However, it also has its challenges; synonyms, homonyms, and inexplicable exceptions to rules. (For example, try explaining to someone why the plural of moose is moose, goose is geese, and mouse is mice.) In the employment law context, the word that is most often the source of confusion and consternation is “contract.”

The purpose of this post is to look at the differences between:

• A contractor and an independent contractor
• Working on contract and working under a contract

Those terms often get commingled in everyday conversation, leading to incorrect assumptions and the aforementioned confusion and frustration. Therefore, as best as one can, given the limitations of the written word, here is a summary of the ways in which the law uses “contract.”

Can Independent Contractors Get EI Benefits?

Can an independent contractor receive Employment Insurance ("EI", formerly "UI") benefits when he is fired from his position?

While the answer should be no, the real answer -like everything in law- is "it depends."

Man or Muppet? Employee or Contractor?

In the recent Muppet movie human protagonist Gary finds himself asking “Am I Man or am I Muppet?”  Unfortunately many employees find themselves asking a similar question when their services are no longer required by their employers.

Although many workers may think themselves “independent contractors” either because they wish to be or, more commonly, because their employers told them they were at the time of hire, such may not necessarily be the case.