Michael Ford (post until Oct. 31/19)
Employment & Labour

Provinces failing to recognize dependent contractors: MacDonald

The challenge of how to define employees and independent contractors is a significant public and national issue that requires resolution, Toronto employment lawyer Natalie MacDonald tells Law Times.

“The definition of what it means to be a worker is constantly evolving,” says MacDonald, principal of MacDonald & Associates. “I think this is one of the most important topics that we have to date.”

In 2017, Bill 148, the Fair Workplaces, Better Jobs Act amended the Employment Standards Act to force employers to prove that someone was an independent contractor and not an employee when allegations of misclassification arise, the online legal news site reports.

“This changed in December when the government passed Bill 47,” it says. “It is still an offence to misclassify someone as an employee, but the worker has to prove they are an employee and not an independent contractor.”

In Ontario, a worker can also be a “dependent contractor” under the Labour Relations Act, which MacDonald says is a classification that falls between independent contractor and employee. While dependent contractors earn their livelihood working for just one company, independent contractors, for example, can work for many employers and aren't financially reliant on any single business, she says.

“Dependent contractors are not generally recognized in Canadian employment standards legislation,” MacDonald tells Law Times. “The provinces and territories are really failing to recognize this kind of category. The concept of the dependent contractor has not thoroughly been litigated nationwide.

“There are countless decisions where the Supreme Court has seen work to be one of the most fundamental aspects in a person’s life in recognizing that it provides the individual with a means of financial support, and a contributory role in society and that their employment is essentially the ingredient or essential component of their sense of identity and sense of self-worth and emotional well-being,” she says.

“We need to now apply that type of sentiment that’s been expressed for the employment relationship for those relationships that are dependent contractor and characterized as such because they really do bear the same hallmarks as the employment relationship,” MacDonald says.

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