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AN EMPLOYEE BY ANY OTHER NAME

In recent months, I’ve written about legal developments which blur the traditional line separating employment relationships from others such as those involving independent contractors. A decision of the B.C. Supreme Court relating to the status of a law firm partner bolsters the view that this blurring is well underway.

Recent examples of the erosion of the distinction between employees and other, more independent actors have occurred in the employment insurance and labour relations and human rights realms.

In the employment insurance world, for instance, previously only true employees were eligible for coverage. Not having that aspect of Canada’s social security net to fall back on was just one risk of being self-employed and operating as an independent contractor.

The federal Fairness for the Self-Employed Act changed that, permitting self-employed persons to opt into the E.I. program to receive certain special benefits. The E.I. coverage for which the self-employed are now eligible includes maternity, parental, sickness, and compassionate care benefits.

In the world of labour relations, a decision out of Alberta suggests that independent contractors can be treated as employees for the purpose of determining whether they can unionize. The Alberta Labour Relations Board reviewed the circumstances of taxi drivers (including those who are owner-operators of their taxis) and determined that, even if the drivers were in some sense self-employed, they should be treated as employees and be allowed to unionize.

In Ontario, that province’s Court of Appeal recently determined that the definition of “employed” in that province’s Occupational Health and Safety Act must be interpreted broadly enough to encompass independent contractors.

And in B.C., our Human Rights Tribunal determined that an equity partner at the law firm of Fasken Martineau Dumoulin LLP could be considered to be employed for the purposes of the Human Rights Code. The Tribunal’s decision has now been upheld by this province’s Supreme Court.

Fasken’s had attempted to force equity partner John McCormick to retire from the practice of law, at age 65, in accordance with the firm’s partnership agreement. McCormick filed a complaint of discrimination pursuant to the Code.

Fasken’s argued that the Tribunal had no jurisdiction because McCormick was not in a relationship of “employment” with the firm. The Tribunal disagreed, gave a broad, liberal, and purposive interpretation to the Code, and held that McCormick was employed by Fasken’s for the purposes of the Code.

Reviewing the Tribunal’s decision, the Court has given voice to the quasi-constitutional nature of human rights legislation and also adopted the “broad, liberal, and purposive” approach to its application. The Court stated that it would be inconsistent with the Code’s objectives to exclude a category of persons from its protections by using a strict, legalistic view of their status at common law.

The Court also noted that Fasken’s partnership agreement contemplated the kind of control traditionally present in an employer/employee relationship. It gave management control over the type services partners provided, how they were provided, whom they were provided to, the partners’ compensation level, etc.

While this decision of the Tribunal and the B.C. Supreme Court is situation-specific, it is a signal that the exclusion of independent actors from the benefits of employment will be sparingly applied. For employers, it means that the risks of relying on the non-employed status of seemingly independent actors are increasing.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.