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Ontario Court confirms who is an Independent Contractor

By August 12, 2016August 17th, 2020Employment Law

There was a case that recently came out of Ontario’s Superior Court about an independent contractor in that a Judge had to decide whether the worker is an independent contractor or not.

Details of the Case

In Fisher v Hirtz, 2016 ONSC 4768 (CanLII), the Plaintiff was a painter and general labourer without a written contract with the Employer.  She was paid either $35 or $25 per hour for each type of work.  She submitted invoices to the employer for the hours that she worked.  The Employer paid her without making any source deductions (no income tax, EI, or CPP deducted).  The Employer did not give any employee benefits.  The Plaintiff paid for her own taxes, insurance, and pension fees.  She even filed her own taxes as an independent contractor and obtained independent WSIB coverage for the jobs she took.

The Employer assigned the Plaintiff her work, and the Employer occasionally provided tools to the Plaintiff.  However, the Plaintiff set her own hours and schedule, and was free to work elsewhere while working for the Employer (even though the Plaintiff wrongly thought she could only work for the Employer and no one else).

There was an incident about 16 months after the Plaintiff started working for the Employer, and her employment was terminated.  Then, she sued the Employer saying she was not an independent contractor but actually an employee and deserved reasonable notice of termination.

After hearing both sides of the argument, the Judge in this case decided that the worker was in fact was an independent contractor.  These were the important facts for the Judge:

  • The Plaintiff had her own tools and equipment;
  • As a sole proprietor, the Plaintff took on the risk of using her own time of having been trained to be a painter;
  • The Employer had a history of retaining independent contractors for all the trades, including painters;
  • The Plaintiff wrongfully thought she could not work for other employers (the Judge called it a “self-induced dependency”);
  • There was no express or implied understanding that the Employer would give the Plaintiff any minimum level of work; and
  • The Plaintiff was paid on an as-needed basis and the duration of the jobs were varied.

The Judge ultimately dismissed the Plaintiff’s wrongful dismissal claim and the Employer did not pay any termination pay to the worker.

Lessons Learned

This is yet another case where a Judge had to decide whether the worker is an independent contractor or not.  This can be avoided if there clear contracts between the worker and the Employer.  In those contracts, we clarify exactly what duties are expected to be performed, that there is no level of work guaranteed to the independent contractor, and other key areas.

Get in touch with us if you currently have independent contractors at your practice (Hygienists or Associates) who are not on written contracts and we can review how best to protect your business.

DMC