Ontario Court of Appeal
Barb Cornish, at Singleton Urquhart in Vancouver, has published an article entitled, "Independent, Dependent or Employee -- How Would you Describe Your Contractor?" (April 12, 2010).
The article discusses the Ontario Court of Appeal's December 2009 decision in McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916, in which the court reaffirmed:
- the existence and definition of the dependent contractor relationship; and
- that such individuals are owed reasonable notice (or payment in lieu) on termination.
The Globe and Mail is reporting that the proposed representative plaintiff will be appealing the Ontario Superior Court of Justice's decision last month refusing to certify an unpaid overtime class action lawsuit against CIBC. You can read the article ("CIBC employee appeals judge's class-action denial", February 19, 2010) here.
Commissioned sales consultant operating through own corporation entitled to reasonable notice of termination
In Braiden v. La-Z-Boy Canada Limited, 2008 ONCA 464, the plaintiff, Braiden, had worked for La-Z-Boy Canada Limited for almost 23 years as a furniture sales consultant when La-Z-Boy ended the employment relationship.
Termination was effected pursuant to a 60-day notice provision in an agreement between La-Z-Boy and Gordon Braiden Sales Inc., a corporation owned by Braiden. The agreement expressly stated that Braiden was an "independent contractor".
The trial judge ruled that:
- given the extent of La-Z-Boy's control over Braiden's functions and activities, an employer/employee relationship existed between La-Z-Boy and Braiden.
- the 60-day notice provision in the agreement was null and void.
- the reasonable notice period was 20 months, in light of Braiden's age (53) and years of service to La-Z-Boy.
The Ontario Court of Appeal upheld the trial judge's decision.