Employment Law: Independent Contractor or Employee

Posted by Johannes Schenk on March 13th, 2010 — Posted in Employment Law

A sometimes thorny issue (aren’t they all all?) is whether the dismissed individual is an employee or an independent contractor. The issue has been recently adressed in McKee v. Reid’s Heritage Homes Ltd. , 2009 ONCA 916 (CanLII) (Ontario) and in Smith v. Centra Windows Ltd. , 2009 BCSC 606.

In short, the more the individual looks like an employee the more they will be treated as an employee for the purpose of a wrongful dismissal analysis. The Court will look at both the contractual terms and how those terms are actually exercised in the specific instance. Even where the contract calls the individual an independent contractor the court will treat that individual as an employee if the relationship looks like a traditional employment scenario.

At the end of the day, and in the absence of a properly written contractual notice period, common law notice reasonable notice periods may apply.

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