Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 ing prepared food to Market to Work on July 7, 2016, with three employees she had hired and trained. e industrial kitchen in which Brennan worked had previously been leased by her but was now leased by Aquatrust. Elite also provided prepared food for a prior regular customer and fulfilled about 15 event catering contracts. Brennan received a $5,000 lump-sum pay- ment from Aquatrust that she applied to op- erating expenses, though she didn't invoice Market to Work for the prepared food she supplied despite the written agreement indi- cating that should be the practice. Aquatrust sent her cheques for hours worked from Aug. 31 to Sept. 16, but not for any before. Brennan told Seaton on Oct. 13 that she quit. She requested a lump-sum payment of all the money Aquatrust owed her — encompassing hours worked, profit share and expenses — but offered another option if Aquatrust preferred "to put me on the books." When she didn't receive anything, she filed an application for unpaid wages. An employment standards officer deter- mined that Brennan and Aquatrust didn't have an employment relationship and there- fore Aquatrust didn't owe any wages to her. Brennan appealed to the Ontario Labour Relations Board to review the decision, ar- guing Aquatrust provided her with the tools to perform her work, controlled her work, dealt directly with clients, and most of what she did benefitted Aquatrust. is made her an employee, she said. e board found that Aquatrust was not in the food preparation business and ap- proached Brennan because her catering business would provide it with the skill and knowledge it needed. e agreement be- tween Brennan and Seaton "most closely resembles a joint venture or horizontal inte- gration between two established businesses" rather than Brennan simply being hired to make food, said the board. e board also noted after the agree- ment was reached and Brennan began pro- viding prepared food for Market at Work, she continued to operate Elite and service its pre-existing customer base. As a re- sult, her position in relation to Market at Work was similar to her position with other Elite clients. In addition, the employees Brennan hired didn't just work on food for Market at Work but also other clients. e board also found that the payments Aquatrust made to Brennan were character- ized as for profit share and "for her time" and were intended for Elite's operating expenses. Even though a $15 per hour rate was decided upon for her time, it didn't mean those pay- ments were wages and Elite's expenses were kept separate, the board said. e board determined that the agreement documented "a contractual relationship be- tween two commercial (i.e. entrepreneurial) enterprises" and the only part that could be seen as relating to an employment relation- ship was the word "employ" used in the ter- mination clause. However, this was casual language and the rest of the agreement in- dicated the intentions of the parties as to the nature of the relationship — "employees do not 'merge' and do not have a 'brand': that is a hallmark of a business," said the board. In addition, Brennan's suggestion she be put "on the books" indicated she didn't think she was listed as an employee. e lump- sum payment and cheques for her time were acknowledgments by Aquatrust that "money should be flowing to Elite or Bren- nan pursuant to the terms of their financial arrangement," but they were not employee wages, said the board. See Brennan v. Aqua- trust Inc., 2017 CarswellOnt 19750 (Ont. Lab. Rel. Bd.). Canadian Employment Law Today | 7 More Cases Company still served prior customers « from OWNER on page 1 STAY ON TOP OF THE LATEST TRENDS IN HR VISIT HRREPORTER.COM TODAY Featuring a blend of breaking news, in-depth analysis and opinion from industry experts, hrreporter.com is a go-to resource for the human resources community.

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