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Independent Contractors

Use of professional corporation did not result in employee becoming independent contractor

Jurisdiction: - Alberta

Therrien v. True North Properties Ltd., 2009 ABCA 44, upholding 2007 ABQB 312

Some personal real estate corporations now required to register with WorkSafeBC

Jurisdiction: - British Columbia

The following was in the BC Government's "Employers' Advisers" Winter 2008 newsletter:

Amendments to the Real Estate Services Regulation which will allow individual real estate licensees to form personal real estate corporations as of January 1, 2009 mean some licensees will be required to register with WorkSafeBC.

Under the Workers' Compensation Act, incorporated companies are required to register with WorkSafeBC to cover workers and any principal active in the company's operations.

For real estate agencies, the base rate for 2009 is $0.19 per $100 of assessable payroll; one of the lowest rates ofv any industry.

Commissioned sales consultant operating through own corporation entitled to reasonable notice of termination

Jurisdiction: - Ontario
Sector: - Manufacturing

In Braiden v. La-Z-Boy Canada Limited, 2008 ONCA 464, the plaintiff, Braiden, had worked for La-Z-Boy Canada Limited for almost 23 years as a furniture sales consultant when La-Z-Boy ended the employment relationship. 

Termination was effected pursuant to a 60-day notice provision in an agreement between La-Z-Boy and Gordon Braiden Sales Inc., a corporation owned by Braiden. The agreement expressly stated that Braiden was an "independent contractor".

The trial judge ruled that:

  • given the extent of La-Z-Boy's control over Braiden's functions and activities, an employer/employee relationship existed between La-Z-Boy and Braiden. 
  • the 60-day notice provision in the agreement was null and void. 
  • the reasonable notice period was 20 months, in light of Braiden's age (53) and years of service to La-Z-Boy.

The Ontario Court of Appeal upheld the trial judge's decision.

"Exclusions, Variances and Averaging Agreements under the Employment Standards Act"

Jurisdiction: - British Columbia

Shanti P. Reda of Black Gropper & Co. in Vancouver presented a paper entitled "Exclusions, Variances and Averaging Agreements under the Employment Standards Act" (February 1, 2008), at a Lorman Educational Seminar. The paper deals with the following:

Part 1 of this paper discusses employees and other types of workers who are
partially or totally excluded from the protections provided by the British
Columbia Employment Standards Act
(the "Act") and its associated
Regulations. This includes: unionized employees, certain professionals,
independent contractors, federally-regulated employees and managers. Part 2 of
this paper discusses options available to employers and employees to voluntarily
modify certain provisions of the Act that would otherwise apply to the
employee(s), allowing for more flexibility in the workplace, including variances
and averaging agreements.

Worker was an employee not independent contractor, Canada Labour Code applies

Jurisdiction: - Canada/Federal

2016415 Ontario Ltd. and Minkine (Re) (January 15, 2008 Canada, M. Cooper).

Human Rights Tribunal sets out key factors when determining if person in "employment relationship" for purposes of Code

Jurisdiction: - British Columbia
Sector: - Health Care

In Crane v. B.C. (Ministry of Health Services) and others, 2005 BCHRT 361, the BC Human Rights Tribunal summarized the applicable principles as follows when determining if a person is in employment relationship such that they are protected by the Human Rights Code:  read more »