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As we start a new labour and employment blog it seems fitting to note that the way in which we define “employee” is still very much a work in progress. And with so many statutes impacting every workplace, you practically need a scorecard to keep track as to what kind of relationship will be treated as being “employment” (or the same as employment for all practical purposes). Two cases illustrate the challenge for organizations that believe they are using non-employees to provide services.

From the world of statute law we have the recent decision of the Ontario Court of Appeal in Ontario (Ministry of Labour v. United Independent Operators Limitedhttp://www.canlii.org/en/on/onca/doc/2011/2011onca33/2011onca33.pdf. In this case, the Court found that independent contractors were “regularly employed” for the purposes of the Occupational Health and Safety Act such that their “employer” was obligated to set up a Joint Health and Safety Committee. Perhaps not earth-shattering when one considers the purpose of the statute, but it is another example of how employers can’t assume that the word “employ” will be defined they way they might expect (or wish).

Another example is from a wrongful dismissal before the same court in McKee v. Reid Heritage Homes Ltd. http://www.canlii.org/en/on/onca/doc/2009/2009onca916/2009onca916.pdf. In that case, while the plaintiff was found to be a true employee, the Court of Appeal clearly confirmed the existence of an intermediate class of service provider – the dependent contractor. A dependent contractor is not in a true employment relationship but will be entitled to “reasonable notice” in the same manner as an employee upon a termination.
Those are just a couple of examples but they underline the need for organizations to have a clear understanding of how they structure relationships with the individuals who provide services – and the implications of those relationships whether pursuant to statutes or under the common law.

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