LEEL 570 Lecture Notes - Lecture 7: State Agency For National Security, Vise, Capital Account
27 Jun 2018
School
Department
Course
Professor
Employment Law: Feb 12 and 14, 2018
The K of Employment: Establishing Relationships
Feb 12
Are we beyong the k of employent? Or beyond employment?
What "new econ" boundaries do the 2 cases challenge?
2 cases where workers claim to be independent contractors, but both very different:
childcare/nursing home and lawyer. One in tax law and one in hr law. Both testing the boundaries of
employment law and thereby the tests
Results of both: intuitively predictable
Connor Homes (2012) (FCA)
Facts: business liscence in ONT to run special group homes. They said all workers were
independent contractors (and the K said so) even though there was a clear employment
relationship. This difference is relevant to tax consequences
Relevant facts
oRevealing portrait of the pay arrangements in the care sector
oMs Rollie Allair?
oMs Greer & Ms Fulton?
How likely are these workers to be in a position to challenge their situation?
Where is this relevant to Revenue Canada?
oIn the moment, it might be more econ beneficial for a worker to claim to be an
independent contractor, BUT they will have less protections than an employee (I.e. healthcare)
Why tax court?
"employed in insurable and pensionable employment"
See also para 24: trend toward increased outsourcing and short-term Ks
Insurable employment
How helpful is the legislative definition in the Employment Insurance Act and the Canada
Pension Plan? (para 17-18)
oNot very helpful!
What is the focus?
oSagaz and the deceptively simple determination of "whether or not the indiv is
performing the services as his own business on his own account", approvingly supporting the
FCS's approach in Wiebe Door
oBut how does Mainville J contextualize his decision?
Should intention matter?
Sagaz did not touch on intent at all, whereas this case does, as well as other jurisprudential
trend – para 30
oIf there is no ambiguity and an epress intent in a K, why should we go further? b/c of the
legal effects
oIntent might be in the context
If there is no ambiguity and there is an express intent to enter into an independent contractual
relationship, why not accept the parties' wishes?
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Based on past tax decisions, the question is "whether there is a mutual understanding or
common intention" - Royal Winnipeg Ballet
Dissent in Royal Winnipeg Ballet (para 35): inequality of bargaining power should be taken into
account in legal characterizations
Far-reaching legal and practical ramifications
How does Mainville J understand the intent dimension? (para 36)
So, is the "sole subjective discretion of the parties" sufficient to determine the matter?
Para 37: "that determination must be grounded in a verifiable, objective reality"
What has changed in the test?
2 step test:
1. Subjective intent, detemrined by the written K or the actual behaviour
2. Does the objective reality sustain the subjective intent of the parties?
*Para 41 Central Q: whether the person who has engaged in the sevices is performing them as a
person in business on his/her own account (Sagaz); factors vary under the circumstances but the
test remains the same
Change to Sagaz?
1. Express attention to the fact that we are in a contractual framework in Connor
2. Connor clarifies an application which had been taking the K at its terms without focusing
on reality
Application
Does the "order" of the test matter? (para 42 ff)
oFirst step is about master-servant and second steps opens it up to context
The test should bring us into the realm of taking K law seriously... and yet K law reminds us of
the subordination
oSo are we looking for the subordination so we can challenge or palliate it or re-
contractualize it? Or are we drawing on the language of subordination to narrow it?
Was the first step of the test met in this case? (para 43)
What of the second step?
o"despite the stated intent of the parties to characterize their relationship as that of
independent contractors, the facts of this case suggest otherwise" (para 44)
oOn what basis does Mainville J come to that determination?
oWhat are we to make of this affirmation: "resembled that of an employer" (para 47)
…
McCormick v Fasken Martineau Dumoulin (2014) SCC
Doesn’t hr legislation apply to all human beings within the territorial jurisdiction concerned?
Facts: McCormick was an equity partner at Fasken. Clause stipulating that equity partners must
retire at 65. He alleged age discrimination
Issue: is he an employee?
Is this a "hard case" for employment law? Hr law?
BC: capacious definition?
"discriminaiton in..." Approach
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Including s.13, Discrimination in Employment
Employment is defined inclusively, as follows:
o"employment" includes the relationship of master and servant, master and apprentice
and principal and agent, if a substantial part of the agent's services relate to the affairs of one
principal, and "employ" has a corresponding meaning
How is the "purposive" approach to be understood?
Para 17: quasi-constitutional legislation that attracts a generous interpretation to permit the
achievement of its broad public purposes
BUT also para 19 The Code achieves those purposes by prohibiting discrim in specific contexts.
One of those contexts is "employment"…
So definition must be approached "consistently"
Emphasis on importance of consistency
Employment – at para 21 – Sullivan, Arthurs:
Includes master-servant relationships, but is not restricted to them...
Return to a formalistic approach
Is to "resurrect an unduly restrictive traditional test for employment"
Court says: not restricted to master-servant relationship: looking for analogous situations where
there is control and dependency
oIs this actually making the definition more broad? Or is it essentially saying the same
thing?
Why is there no room for intent here?
Essential character
Para 28: "what is more defining than any particular facts or factors is the extent to which they
illuminate the essential character of the relationship and the underlying control and dependency.
Ultimately, the key is the degree of control, that is the extent to which the worker is subject and
subordinate to someone else's decision-making over working conditions and remuneration"
Expansive Approach
Synergy btwn CONTROL and DEPENDENCY
Para 23
Synergetic aspects...
With such a broad definition in the Code and tradition in human rights interpretation, where are
the boundaries to be drawn, according to Abella J?
Where do "control" and "dependency" come from?
oCrane? Doctrine? Labour relations cases? US human rights legislation (e.g. ADA)?
Aspects again looks at in purposive manner
Independent contractors under human rights legislation
Para 22 "independent contractors, for example, have been found to be employed for purposes
of human rights legislation, even though they would not be considered employees in other legal
contexts..."
oNote e.g. Panny v Prestige Cab Ltd. (1986) (Alberta CA)
But what is a partnership?
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Document Summary
2 cases where workers claim to be independent contractors, but both very different: childcare/nursing home and lawyer. One in tax law and one in hr law. Both testing the boundaries of employment law and thereby the tests. Facts: business liscence in ont to run special group homes. They said all workers were independent contractors (and the k said so) even though there was a clear employment relationship. Revealing portrait of the pay arrangements in the care sector. Where is this relevant to revenue canada? o. In the moment, it might be more econ beneficial for a worker to claim to be an independent contractor, but they will have less protections than an employee (i. e. healthcare) See also para 24: trend toward increased outsourcing and short-term ks. How helpful is the legislative definition in the employment insurance act and the canada.
