I wrote last year about the Ontario Superior Court of
Justice's decision in the case of Keenan v. Canac
Kitchens (a link to same can be found here:
week the Ontario Court of Appeal upheld the Superior Court's
decision in Canac, and added some additional guidance with respect
to the law surrounding dependent contractor relationships.
First, a quick reminder as to the facts of this particular
case. Lawrence and Marilyn Keenan were employed by Canac
Kitchens beginning in 1976 and 1983 respectively. In 1987,
both were advised that their employment was coming to an end but
that they could carry on as independent contractors. An
independent contractor agreement was signed by Marilyn and the
Keenans carried on as before. They continued working for
Canac until the company closed its operations in 2009. No
notice of termination or pay in lieu of notice was provided.
While there were some factors in this case which suggested an
independent contractor agreement, the lower court was particularly
fixated on the fact that the Keenans worked exclusively for Canac
until 2007. Although they did some small amount of work for a
competitor named Cartier between 2007 and 2009 due to a shortage of
work at Canac, the judge accepted that Canac turned a blind eye to
same. In other words, for all intents and purposes the
Keenans provided services only to Canac for almost the entire
duration of the relationship. Moreover, Canac had almost
complete control of the work performed by the Keenans.
As a result, the Superior Court found that although the Keenans
were contractors, they were in a dependent relationship to Canac
and therefore entitled to notice of termination. Due to the
32 and 25 years of service provided by Lawrence and Marilyn
respectively (which resulted in an average length of service of
28.5 years between the two of them), the court found that a
whopping 26 month notice period was reasonable.
Canac contended that the trial judge erred: (i) in finding that
the Keenans were in an exclusive relationship with Canac; and (ii)
in awarding 26 months of notice. The Ontario Court of Appeal
determined that while the Keenans performed some work for Cartier,
the substantial majority of their work was for Canac. More
specifically, of the approximately 32 and 25 years of service which
Lawrence and Marilyn gave to Canac, all but two were exclusively in
the service of Canac. The court further stated that the full
history of the working relationship between the parties must be
examined, and not just a snapshot at the time of termination.
In addition, the Court found that because of the age and length
of service of the Keenans, the fact that for over a generation they
were Canac's public face to the outside world, and the fact
that their income had come from Canac during the entirety of their
working lives, an award in excess of 24 months was justified and
the trial judge's finding for a 26 month notice period was
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