In this case, the defendant Bank retained a consulting firm
called, Tetra Consulting, to help it obtain approval from the
Office of the Superintendent of Financial Institution to operate as
a Schedule 1 bank under federal banking legislation. It was
understood that once such approval was obtained, the owner of the
consulting firm, Lewis Cassar, would become an employee of the
Approval was obtained in December 2014 in which time Cassar was
appointed to several offices in the Bank. In the next month, before
a formal employment agreement could be signed, the Bank venture
came to an end, and the Bank terminated the relationship with
Cassar and his consulting firm. The Bank refused to provide
any pay in lieu of notice on the ground that Cassar had never been
employed by the Bank.
Cassar and his consulting company sued and brought a motion for
In his decision, the motions judge concluded that Cassar had
become an employee of the Bank even if the drafting of an
employment contract had not been completed. The final
agreement, if it had been completed, would simply have documented a
relationship that was already in place.
The interesting question, however, had to do with the relevance
of the fact that Cassar had been doing work at the Bank through his
consulting company since January 2013, almost two years before
Government approval had been obtained.
The law appears to be well established in Ontario that a worker
who provides service only for one company but is not an employee
will usually be considered to be a dependent contractor if he
occupies space at the company's premises, remains subject to
the control of the company at all times, and represents himself to
third parties as an employee. It has been clear for some time that
a dependent contractor is entitled to reasonable notice of
termination by the company. What has been less clear is the
extent of that notice and particularly, how such a notice period
would compare to the worker's notice entitlement if he had been
In this case, the Court had no hesitation in finding that Cassar
had been a dependent contractor for almost two years. As such he
was entitled to the same notice as would have been the case had he
been an employee. The Court concluded that there is no
distinction between the amount of notice that a company must
provide a dependent contractor or an employee performing the same
While the decision in this case certainly makes sense given the
relationship between Cassar and the Bank, it should be borne in
mind that an individual may be considered to be a dependent
contractor in circumstances in which he does not necessarily devote
one hundred percent of his working time to a particular company
– such as, for example, where a dependent contractor
continues to maintain a relationship with one or more other clients
although only to a very small extent. There are other factors for a
court to consider coming to the conclusion that an individual is a
dependent contractor that also might not be totally consistent with
an employment relationship.
In such cases, I would suggest that a period of reasonable
notice of termination might not be equivalent to the notice period
for an employee. In my view, this case does not stand for the
proposition that a dependent contractor will be entitled to the
same notice of termination as an employee in every case. That
principle should only apply where, as in the case of Mr. Cassar, a
worker's relationship with the company is indistinguishable
from that of an employee.
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