Canadian Employment Law Today

sheet metal department, the worker was never disciplined nor was he subject to any formal performance review. Following his termination, upon which no reasonable notice was provided, the worker sued for wrongful dismissal. Ultimately, because of the lack of control MDE had over the worker it was determined that he was not an employee. However, the court's main determination related to whether or not, based upon the factors set out in Glim - hagen, he was a dependent contractor — a relationship more akin to employment and thus entitled to notice — or an independent contractor, who would not be entitled to same. Ultimately, the court concluded that the worker was closer to that of an employee than an independent contractor based upon his economic dependence and his longevity with MDE. Specifically, the factors the court noted were: "1. e plaintiff (the worker) worked exclu - sively for the defendant (MDE). 2. e plaintiff was minimally supervised by the defendant in terms of his day-to-day work and had a relatively high degree of autonomy. 3. e plaintiff invested in some of his tools but others were provided by the defen - dant. 4. e plaintiff undertook no risk of loss or possibility of profit apart from his hourly wage. Although he made more money if he brought in more business, all of his work was in the service of MDE. 5. All of the plaintiff 's activity was part of the principal's business organization and he was integrated with it. 6. e relationship was long-standing in that it spanned 18 years. 7. e plaintiff relied entirely on the defen - dant for his livelihood." e court summarized its finding by stat- ing: "e quintessential definition of an in- dependent contractor is someone who is in business for themselves. Weighing all of the above factors, this cannot be said of Mr. Pas- che. He worked exclusively for MDE over a period of 18 years. On all the evidence, including the length and permanency of Mr. Pasche's arrangement, the exclusivity of the relationship, and the dependency of the plaintiff on the defendant, I conclude that the relationship was more akin to an em - ployer/employee relationship than that of an independent contractor." Based upon its finding that the worker was a dependent contractor, the court awarded the worker 13 months' notice. e Pasche decision, along with the deci - sions before it and recent legislative chang- es, signals to employers yet again that there is significant risk to treating workers as in- dependent contractors who are not. How- ever, much of the liability that is attracted by this mischaracterization can be minimized where the worker is incorporated, where the company pays the worker's corpora - tion — as opposed to the worker directly — where the company has conferred the right onto the worker to work elsewhere — and perhaps even encourages it — and where there is an enforceable agreement between the parties that provides for notice of termi - nation that meets minimum employment standards requirements should an employ- ment relationship be found. at being said, legislative rights and penalties are more dif- ficult to avoid regardless of the steps taken by a company who misclassifies a worker. For more information see: • Pasche v. MDE Enterprises Ltd., 2018 Car- swellBC 1047 (B.C. S.C.). • Jacks v. Victoria Amateur Swimming Club, 2005 CarswellBC 1286 (B.C. S.C.). • McKee v. Reid's Heritage Homes Ltd., 2009 CarswellOnt 8053 (Ont. C.A.). • Keenan v. Canac Kitchens Ltd., 2015 Car - swellOnt 2322 (Ont. S.C.J.). • Glimhagen v. GWR Resources Inc., 2017 CarswellBC 1238 (B.C. S.C.). Canadian HR Reporter, a Thomson Reuters business 2018 August 15, 2018 | Canadian Employment Law Today CREDIT: JON SCHULTE/SHUTTERSTOCK ABOUT THE AUTHOR Alex Kowal Alex Kowal is a legal advisor with e2r® in Toronto. He can be reached at (416) 867-9155 or akowal@e2rsolutions.com.

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