Discussion: This case deals primarily with the distinction between an employee and an independent contractor. Although the parties in this case intended to structure their relationship so that the applicant would be regarded as an independent contractor, the parties conduct indicated otherwise. The main difference between an employee and an independent contractor lies with the element of CONTROL that the employer has over the worker. Factors to consider when assessing whether a worker is an employee or an independent contractor include:

  • The level of control the employer has over the worker’s activities
  • Whether the worker provides his or her own equipment
  • Whether the worker hires his or her own helpers
  • The degree of financial risk taken by the worker
  • The degree of responsibility for investment and management held by the worker
  • The worker’s opportunity for profit in the performance of his or her tasks

Facts:

  • Applicant worked for the defendant as a pipe fitter.

    He was seriously injured while removing a decommissioned gas standpipe.

  • The applicant started an action for damages, alleging that he was working as an independent contractor for the employer at the time of the injury.
  • The respondents commenced a right to sue application under s. 31 of the Workplace Safety and Insurance Act (the Act), which authorizes the tribunal to determine whether, because of this Act the right to commence an action is taken. S. 27 and 28 of the Act prohibit a worker injured in the course of employment from suing his or her employer if he was injured while acting in the capacity of an employee or worker at the relevant time and is not an independent contractor
  • The tribunal allowed the application of the respondents and held that the applicant was not entitled to sue. The applicant seeks judicial review of this decision.

Issue:

  • Was the tribunal accurate in its conclusion that the applicant was an employee of the defendant and therefore not allowed to sue.

Rule:

  • The Workplace Safety and Insurance Appeals Tribunal is entitled to judicial deference on the reasonableness standard.

  • Contractual arrangements can be used to supplement viva voce evidence, provided that the written word corresponds with the manner in which the parties actually conduct themselves. In these cases, the law is concerned with what people actually do and not what they agreed to do. More importantly, the law will not blindly accept the classification label the parties have placed on their relationship (Joey’s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission)

Analysis:

  • Although the parties intended to structure their relationship so that the applicant would be regarded as an independent contractor, the parties’ conduct indicates otherwise. The Tribunal noted that the respondent continued to pay a salary to the applicant when he was off work and after he returned to work on modified duties; the applicant’s earnings were reported to the Workplace Safety and Insurance Board; the respondent exercised a high degree of control over the applicant’s work; the applicant did not hire his own helpers; the applicant had marginal financial risk; the applicant had no meaningful opportunity for profit. The Tribunal’s decision fell within the range of possible and acceptable outcomes that were defensible with regard to the facts and the law. It was not unreasonable.

Conclusion:

  • Application dismissed.

 

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