Canadian Employment Law Today

6 | March 18, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends /Ask an expert Workers still considered themselves employees them from working for a competitor, but they thought Canac "turned a blind eye" to this because of the slowdown in Canac work. Canac continued to supply more than two-thirds of Keenan's business, with this rising to 80 per cent by 2009. Despite the subcontractor agreement, the Keenans still considered themselves employees of Canac. ey received em- ployee discounts, wore shirts with Canac logos, had Canac business cards, and Law- rence Keenan received a signet ring from the company for 20 years of loyal service. Canac also supplied a pager, car phone, mo- bile phones, and an office at its location to the Keenans. In March 2009, Canac informed the Keenans it was closing its operations and their services would no longer be required. No notice of termination or pay in lieu of notice was offered, as Canac was of the po- sition the Keenans were independent con- tractors, not employees, and as such weren't entitled to any severance. e Keenans sued for wrongful dismissal. e court noted it has been established that employment relationships can be clas- sified as in-between that of employee and independent contractor, to that of "depen- dent contractor." Dependent contractors may not fully be employees, but they have a close enough relationship with their em- ployers that they are entitled to reasonable notice upon termination, said the court. relationship closer than that of independent contractor e court found the Keenans' relationship with Canac favoured a finding that they were dependent contractors, due to "a high level of exclusivity" with the company and significant economic dependence. It was notable that they were employees of Canac for years before the subcontractor agree- ment as well. e court also found the subcontractor agreement signed in 1987 "could reason- ably be interpreted as requiring exclusiv- ity," since it mentioned devoting "full-time attention to the business of Canac." ough Canac argued this referred only to times when the Keenans were performing work for Canac, Keenan testified he didn't con- sider himself able to work for other kitchen cabinet companies — which he didn't until 2007 when work from Canac slowed down. is gave little opportunity for the Keenans to generate additional profit, and Canac received most of the benefit out of the ar- rangement, said the court. "Other than some occasional, and in my view, inconsequential, weekend work and work for friends and family, the (Keen- ans) worked exclusively for (Canac) for 20 years, from 1987 to 2007," said the court. "Even, when out of economic necessity be- cause of a downturn in (Canac's) business, the (Keenans) started to do some work for (a competitor), they did so because Canac turned, to use Mr. Keenan's phrase, 'a blind eye,' the clear implication being that Canac knew and acquiesced." e court found Canac "maintained ef- fective control of the business" by setting rates for both installers and the Keenans, service standards and handling customer relations. e court agreed with the Keen- ans' argument that Canac essentially set them up as a buffer between it and install- ers — as well as responsibilities it has with employees such as workers' compensation, paid vacation, benefits, and payroll deduc- tions — but still took charge when it came to the business. Ultimately, the court found the business was Canac's and the Keenans were almost completely dependent on Canac, despite Canac's attempt to distance itself from the employment relationship. It found the Keenans were dependent contractors. Because Lawrence had 32 years of service with Canac and Marilyn 25, the court de- termined 26 months of notice was reason- able. Canac was ordered to pay the Keenans $124,484.04 plus $70,000 in legal costs. For more information see: • Keenan v. Canac Kitchens, 2015 ONSC 1055 (Ont. S.C.J.). « from dePendenT on page 1 « from ask The exPerT on page 2 thority to direct how another person does work or performs a task, and therefore is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task (there is a legal duty under s. 217.1) • e accused failed to fulfill that duty by act or omission • at act or omission by the accused showed a reckless or wanton disregard for the lives or safety of other persons Criminal negligence "requires a marked and substantial departure from the conduct of a reasonably prudent person in circum- stances in which the accused either recog- nized and ran an obvious and serious risk or, alternatively, gave no thought to that risk" but it does not require intention or actual foresight of the prohibited conse- quence (R. v. H. (A.D.). While bodily harm need not actually occur, it must be the likely result of the act or omission, and objectively foreseeable. Failure of a supervisor, or someone with the authority to direct workers, to draft and enforce safety plans, properly train workers regarding safety issues, or properly ensure adequate experience for performing a task may result in the commission of an offence under this provision regardless of resulting harm having actually occurred. However, the likelihood of establishing such criminal negligence may be significantly reduced by the fact that no injury has occurred — it will have to be specifically proven that a situa- tion where bodily harm was likely to result was actually created. To address your ex- ample: if equipment being used by employ- ees is known to be in unsafe condition that could result in serious injury or death, it is possible that charges could be laid before something happened, where nothing was done to address the situation from which bodily harm was likely to result. It would however depend on the ability to prove the elements of the offence as discussed above. For more information see: • R. v. H. (A.D.), 2013 CarswellSask 304 (S.C.C.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt. com. Failure of legal duty can lead to charges under Code The court found the subcontractor agreement 'could reasonably be interpreted as requiring exclusivity, since it mentioned devoting full-time attention to the employer's business.'

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