LEEL 570 Lecture Notes - Lecture 12: Unemployment Benefits, Determinative, Dune
27 Jun 2018
School
Department
Course
Professor
Employment Law: Feb 26 and 28, 2018
Feb 26: The K of Employment: Establishing Relationships
Employment K v K of enterprise / K for Services
Art 2085 CCQ = employment K
o"a K of employment is a K by which a person, the employee, undertakes for a limited
period to do work for remuneration, according to the instructions and under the direction or
control of another person, the employer
oUses language of direction or control
Arts 2098 & 2099 CCQ = K for services
o"a K of enterprise or for services is a K by which a person, the contractor or the provider
of the services, as the case may be, undertakes to another person, the client, to carry out
physical or intellectual work or to supply a service, for a price which the client binds himself to
pay to him
o"the contractor or the provider of services is free to choose the means of performing
the K and, with respect to such performance, no relationship of subordination exists btwn the
contractor or the provider of services and the client
oUses language of subordination to define what is NOT an independent contractor (I.e.
an independent contractor does not have a relationship of subordination)
Where do we find the language of (legal) subordination in relation to employment?
Jurisprudence
Pre-dates CCQ
K of Employment and the CCQ
Nominate Contract: arts. 2085 et seq. CCQ
Specificity of the employment k:
oThe definition recognizes the INEQUALITY btwn the parties
oIt captured the idea of "subordination" of one party to the direction and control of
another (read in relation to art 2099 CCQ, on the K of enterprise or for services)
oThis call for a level of prudence, discernment in the application of other rules from the
CCQ
"le CCQ entretient une relaiton essentielle mais complexe avec le K de travail.
It s'applique à lui tantôt d'instrument juridique secondaire" - Prof. Urwana Coiquand, Juriclasseur
Conditions of existence
Absence of formalism – arts 1385 CCQ (general K provision)
oSole exchange of consents btwn persons having capacity to K, tacit or express
oBUT: any competition clauses must be in writing (art. 2089 CCQ – Part IV of our course)
Concluded subject to payment 0 remuneration against delivery of personal work...
Ks involving successive performance (or the relational character) - benefits are renewed over
time (relational K, as seen in Bird)
Required conditions
4 conditions must be met, under penalty of nullity (art 1416 CCQ) of K:
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1. Employee's capacity to K
a. e.g. art 156 CCQ: a minor 14 yrs of age or over is deemed to be of full age for all acts
pertaining to his employment or to the practice of his craft or profession. AND art. 84.3 LNT
regarding minors under age 14
2. Willingness to K – exchange of consent
a. Bear in mine when we see cases of false statements during recruitment under Part V
(termination)
3. Cause of K in conformity with public order
4. Object of K in conformity with public order
Cause and object (prelude to part IV)
Object Cause
Employee: Performs his/her personal work Obtain remuneration
Employer: Pay remuneration Obtain the performance of work
So what happens if the "employee" is a corporation?
Dico Express Inc (CAW, 2009)
How was the relationship structured?
oWho provided the tools, owned or leased the vehicle(s) for transport, made the
employer inscriptions? Etc
oWas the numbered company also an employer?
Did Mr. Paiement always execute the work personally? Para 25-27
oDid the messengers work for anyone other than Dicom?
oWhat was the working time arrangement?
oWas the relationship negotiated?
oHow much margin of manoeuvre did the individual courier delivery person have?
oWhat did Mr. Paiement seek to change in the relaitonship?
Distinction between day to day control and macro control (what territory, what client base)
Can an incorporated sub-constractor be considered an employee of the co-contractor, their only
client?
oSuperior Court: YES (para 12)
Focuses on the "étroit lien de suborindation entre Dicom et ses messagers"
"la structure corporative ne pet pas, en l'espèce, constituer une défense"
oWhat is meant by subordination here?
oIs this subordination within the meaning of the CCQ, as a primary source? As a
secondary source?
QCA: Dependent contractor = no "subordination"?
CLC, Part I, S.3 vs LNT, S.1.
But in the CCQ, according to the QCA?
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"ce qui constitue le trait distinctif du contrat de travail, et le distingue du contrat de
service, est cette caractéristique suivant laquelle l'exécution du travail
du salarié est subordonnée au contrôle et à la direction d'un employeur"
Is this found in art. 2085 CCQ? What is the relationship to art. 2099 CCQ?
Does the CCQ refer to "juridical" or "legal" subordination at all?
Economic subordination
Is it something other than remuneration?
What about being entirely economically dependent?
Defining Juridical Subordination
Para 16: "le critère de subordination juridique se définit difficilement, mais ne doit surtout
pas être confondu alec la dépendance économique"
(even if "la subordination juridique inclut une dépendance économique"
So what matters?
Focus (para 17): Court acknowledges the hierarchical component, individual case analysis,
globality of factors
oPower to give orders and directions
oPower to control the execution of work
oPower to discipline ("sancitonner les manquements")
Does this motion cary depending on the work?
So what of the existence for messengers of only one client – is it relevant?
So can, an employee be an incorporated business?
Diacom claims yes this is about personal relationship, BUT there might be exceptional
circumstances where we need to pierce the corporate veil
Were you surprised to read the following?
o"aucune disposition du CCQ n'impose au salarié l'obigation d'un status personnel" (at
para 19)
o"toutefois, les contraintes juridiques auxquelles le
code assujettit le salarié ne permettent pas une autre conclusion"
Yet the court continued to suggest that there is no other answer: personal delivery of service IS
REQUIRED, in line with the CCQ, according o Prof. Bich (now j.c.a.): goal is to
"protéger la personne humaine contre les vicissitudes d'un maché quel elle ne participe pas" (19)
In exceptional circumstances
It may be possible to pierce the corporate veil – to look beyond the "moral personality" to
establish an employer-employee relationship
Consider, for example, cases where the corporation was only a "mailbox"
But in other circumstances, where shareholders decided to incorporate and
the corportation had other employees, the court has considered it inappropriate to find that there is
an employment relationship
oKEY: where the corporation is a form of SUBTERFUGE
Consider this in relation to the Ontario Employment Standards Act, Section 5(1) - "an employer
shall not treat, for the purposes of this Act, a person who is an employee of the employer as if the
person were not an employee under this Act"
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Document Summary
Feb 26: the k of employment: establishing relationships. Employment k v k of enterprise / k for services. "a k of enterprise or for services is a k by which a person, the contractor or the provider. Uses language of subordination to define what is not an independent contractor (i. e. The definition recognizes the inequality btwn the parties. It captured the idea of "subordination" of one party to the direction and control of o another (read in relation to art 2099 ccq, on the k of enterprise or for services) o. "le ccq entretient une relaiton essentielle mais complexe avec le k de travail. This call for a level of prudence, discernment in the application of other rules from the. It s"applique lui tant t d"instrument juridique secondaire" - prof. urwana coiquand, juriclasseur. Absence of formalism arts 1385 ccq (general k provision) o. Sole exchange of consents btwn persons having capacity to k, tacit or express.
