Canada: Independent Or Dependent Contractor? BC Court Finds No Severance Owing To Long Term Service Provider

A recent decision of the British Columbia Provincial Court1 serves as an important reminder of the factors a court will consider when determining whether an individual is a dependent contractor and of the repercussions dependent contractor status may have on severance obligations upon termination.

In Thomas v. Vancouver Free Press Publishing Corp., the BC Provincial Court considered whether Colin Thomas, a freelance writer, was a dependent contractor of the Vancouver Free Press Publishing Corp. ("Vancouver Free Press"). Mr. Thomas conceded that he was never an employee of the Vancouver Free Press, but claimed that he was a dependent contractor and was therefore entitled to reasonable notice or pay in lieu of notice upon his termination. Ultimately, the Court found that Mr. Thomas was not a dependent contractor and was therefore not entitled to notice or pay in lieu.

Background

Mr. Thomas was a freelance writer who started to write theatre reviews for the Vancouver Free Press, who publishes The Georgia Straight, on a freelance basis in 1988. At about that time, Mr. Thomas was asked if he would become the theatre critic for The Georgia Straight. Mr. Thomas agreed.

Over the years, Mr. Thomas would make pitches to The Georgia Straight's Arts Editor proposing reviews of certain theatre shows. The Arts Editor retained discretion to reject the pitch or ask for a review of a different show. When a pitch was accepted, Mr. Thomas would attend the show, write his review, and then submit it to The Georgia Straight. Mr. Thomas was paid a flat rate plus GST for each review.

In 2004, The Georgia Straight implemented a policy that that limited Mr. Thomas to writing only two theatre reviews in any issue of The Georgia Straight. As a result, Mr. Thomas supplemented his income by providing story-editing services that he mostly promoted and offered through his personal website. There was conflicting evidence on whether Mr. Thomas was permitted to write for other publications. Mr. Thomas believed that he was not allowed to write reviews for other publications however, The Georgia Straight denied that this was the case. Mr. Thomas continued to write for The Georgia Straight until September 2016, when he was told that The Georgia Straight would no longer purchase theatre reviews from him.

Mr. Thomas was subsequently offered a job writing theatre reviews for the Westender newspaper, however he turned down the offer. He then entered into a contract with the Vancouver Fringe Festival Society to write a theatre review column. That relationship ended in March 2018. Mr. Thomas also generated income from subscriptions to his website where he published his theatre reviews.

Decision

The Court considered whether Mr. Thomas was a dependent contractor. The factors to consider in making this determination are set out in Lightstream Telecommunications Inc. v. Telecon Inc.2 and include the level of worker control, ownership of equipment and tools, opportunity for profit and loss, and business integration. In determining that Mr. Thomas was not a dependent contractor, the Court noted the following:

  • The Georgia Straight did not control the content of Mr. Thomas' writing other than to approve the show to be reviewed;
  • The Georgia Straight did not prevent Mr. Thomas from writing reviews and earning additional profits from other publications;
  • The Georgia Straight was never obligated to purchase a review from Mr. Thomas; and
  • The Georgia Straight used the services of other reviewers and continued to publish theatre reviews after Mr. Thomas stopped writing them, showing that the paper was not reliant on Mr. Thomas.

The strongest factors in favor of a finding of dependent contractor status were the 28-year relationship between The Georgia Straight and Mr. Thomas and Mr. Thomas' reliance on The Georgia Straight as a source of income. However, after taking each factor into consideration, the Court concluded that Mr. Thomas was not a dependent contractor and was therefore not entitled to reasonable notice of termination.

The Court also determined that if Mr. Thomas had been a dependent contractor or an employee, he would have been entitled to 20 months of reasonable notice.

Takeaways

This decision is a timely reminder to employers that an intermediate category exists between employees and independent contractors. If a non-employment work relationship exhibits a certain level of economic dependency, the worker may be found to be dependent contractor and therefore entitled to reasonable notice upon termination. Employers should seek legal advice when hiring independent contractors or workers on a freelance basis to ensure that the relationship is appropriately structured to meet the employer's needs.

Footnotes

[1] Thomas v. Vancouver Free Press Publishing Corp., 2019 BCPC 9.

[2] Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2019

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions