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Independent Contractor or Employee?
19 Jun 2018
By Jennifer Zeilikman
Independent Contractor or Employee?

I just lost my job.  My former employer classified my position as an “independent contractor” and has not provided me any notice of the termination.  However, I am not so sure that I am actually an “independent contractor” because my former employer controlled a lot about my job including when and how the work was performed. 

This is very common issue in employment law.  Employers often mischaracterize actual employees as independent contractors.  For instance, the employer may want to avoid payroll taxes or liabilities related to notice and termination.  This mischaracterization often comes into play when the employer decides to fire the “independent contractor” because independent contractors are not owed any notice.  The “independent contractor” in this circumstance may challenge their characterization as an independent contractor in an effort to receive notice of termination or pay in lieu thereof.   The “independent contractor” could either file a statement of claim to request that a court order the employer to pay severance.  They may also file a complaint with the Ministry of Labour in an effort to enforce their rights under the Employment Standards Act

A variety of factors are used to determine if an “independent contractor” has been mischaracterized and is actually an employee.  For instance, questions will be asked as to who controls the work being done, who sets the work hours, who provides the tools and materials related to the worker...etc.  Generally, the more freedom and autonomy the “independent contractor” has the more likely that an “independent contractor” is actually an employee.  It is important to note that this would be true regardless of whether or not the “independent contractor” has agreed in writing to be an independent contractor, provided the employer with invoices for payment or has been charging HST.

If you have any questions about these matters or whether or not to file a complaint with the Ministry of Labour, we strongly recommend that you talk with a lawyer.  Please note that a complaint filed with the Ministry of Labour is limited to the minimum standards of the Employment Standards Act.  You may have greater rights under the common law.

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.