Labour and employment law are different. Labour law deals with those who are in unions.
Employment Definition
The Employment Standards Act, which outlines the minimum rights and obligations of employers and employees in Ontario, defines an ‘employee’ as:
“employee” includes,
(a) a person, including an officer of a corporation, who performs work for an
employer for wages,
(b) a person who supplies services to an employer for wages,
(c) a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees, or
(d) a person who is a homeworker,
and includes a person who was an employee
Employment Standards Act, 2000, S.O. 2000, c. 41, part I, s 1.
Generally, it appears that many would be classified as an employee, but you may actually be classified as an independent contractor.
Significance
This matters because your rights under the law will differ depending on whether you are an employee or independent contractor. The vast majority of protective employment standards only apply to employees.
For instance, there may be income tax implications. An employee will be taxed differently than an independent contractor, who is considered to be running their own business. Contributions to Employment Insurance and the Canada Pension Plan are automatically deducted by employers. As an independent contractor, you may choose to contribute to these plans, but have to collect HST in Ontario. If you choose to do so, you will be required to keep records pertaining to them and manually remit these contributions to the correct offices.
As an employee, your employer will generally be held liable for the wrongful acts while you’re on the job. This is known as vicarious liability. As an independent contractor, you will generally be liable for the wrongful acts you commit, even if they occurred on a project.
As an independent contractor, you may not have the right to receive workers’ compensation for an accident that occurred while you were on a project. To receive compensation, you may need to sue the company who contracted for your services.
As an employee, the Employment Standards Act gives remedies for wrongful dismissal. As an independent contractor your contract may cover termination. Generally, you will be bound by the termination clauses in the contract.
Like many areas of the law, it is not black and white. Courts have sometimes implied the rights and duties found in employment contracts into the contracts of independent contractors. Additionally, some protective legislation may still apply, even if you are an independent contractor. Some examples are the Ontario Human Rights Code and the Occupational Health and Safety Act.
How would a court look at this decision? Find out here.
Geoffrey England, “Individual Employment Law,” 16-21, 24, 25.
Peter Israel, “The Written Contract of Employment” 18.
The Queen’s Film & TV Research Group are not lawyers, and this is not legal advice! For more information on labour and employment law, please see the Labour & Employment Law section of this site. Find out more about Queen’s Law on their website, and Pro Bono Queen’s at the PBSC Queen’s site.