Question:
I am looking for what would be required to prove that one is an employee
and notan independent contractor, as well as jurisprudence where a Canadian
judge has ruledthat an individual was in fact an employee despite what each
of the parties. may have previously agreed to call themselves?
Answer:
I supsect that you are faced with appealing the judges ruling. If so,
you must act within 30 days. Go to the Canadian Lawyer Index site at
http://www.canlaw.com and ask any of the lawyers listed there
The Canadian Lawyer Index is a free lawyer referral service for
anyone, or any business, anywhere in the world seeking legal
assistance in Canada. We will find the right lawyer for you at no
charge.
Though familiar with U.S. law(s) on point, I don't know about and
therefore can't and don't comment on Canadian law as such, but
make this comment nonetheless to remind the poster and those who
read his query who make feel themselves like-situated that,
especially in this area of the law (though also in many others),
what "the parties have ... agreed to call themselves" is perhaps
the least dispositive factor influencing a decision where
challenged.
Generally speaking, whether one is/isn't an "employee" or
"independent contractor" is determined by a hard factual look at
the congerie of precise factual elements of the parties'
relationship, e.g., including who calls the shots and which ones,
how and primarily by whom work place and hours are determined,
comparisons with other employees and contractors in terms of
services rendered, who supplies and pays for the wherewithal
(e.g., tools), etc., etc., etc.
Further, the answers will be fundamentally lower-case-"p"
political -- i.e., *practical* -- depending on the context of the
dispute (a private lawsuit? a claim by taxing authorities? etc.)
where, also depending on the context, procedural interpretive
rules of skepticism or other means of narrow construction of
these factors may also come in to play.
Clearly and meanwhile, however, stretching a hippopotamus' neck
and "agreeing" to call it a "giraffe" is in no way controlling in
terms of what the animal will actually be found to be, and
certainly not in most economic-legal contexts.
