On August 8, in Syndicat des employé(e)s de TVA, section locale 687, SCFP et Groupe TVA inc. et l'Union des artistes1, the Canada Industrial Relations Board (the "Board") rendered a decision in which it examines for the first time how the concept of "independent contractor" is to be applied when determining the status of an "artist" within the meaning of the Status of the Artist Act.2
In that decision, the Board also examines the intended scope of a "universal" bargaining unit and confirms that it may vary.
In that case, the Syndicat des employé(e)s de TVA, Local 687 (CUPE) (the "Union") filed an application under section 18 of the Canada Labour Code (the "Code") seeking to have Denis Lévesque ("Mr. Lévesque") declared to be an employee covered by the intended scope of his bargaining unit. The bargaining unit includes "all employees" of Groupe TVA Inc. ("TVA") working in Montréal, excluding the positions listed in Appendix A to the certification order. In response to that application, TVA and the Union des artistes ("UDA") alleged that Mr. Lévesque was an artist, and thus an independent contractor covered by the Status of the Artist Act and by the UDA's bargaining unit. To resolve the issue, the Board had to examine the following two questions:
- Is Mr. Lévesque covered by the Union's "universal" bargaining unit?
- Is Mr. Lévesque an artist, and therefore an independent contractor within the meaning of the Status of the Artist Act and covered by the UDA's bargaining unit?
To answer the first question, the Board began by examining the duties performed by Mr. Lévesque and concluded that he was a television host and not a journalist/newsreader. The Board then examined the intended scope of the certification held by the Union in order to determine whether it covered the position of television host.
Although the Union's bargaining unit was described as "universal" in the sense that any new classification or new position was included in it unless the parties agreed to exclude it, the Board concluded that the position of television host was not part of it, even though it was not expressly referred to in Appendix A to the certification order.
The Board held that the position of television host already existed at the time the certification order was made and that even though that position was not excluded by Appendix A to the certification order, it had never been claimed by the Union, had never been included in the collective agreements signed by the parties and was not included in the position descriptions. The decision thus confirms that even where a bargaining unit is described in general terms, a position can nonetheless be excluded from its intended scope when it existed at the time the certification order was made and was never claimed by the union, either at that time or at a subsequent time.
To answer the second question, the Board had to interpret the notion of "artist" under paragraph 6(2)(b) of the Status of the Artist Act, which provides that an "artist" is an independent contractor, a concept that is distinct from that of a dependent contractor, itself included in the definition of "employee" under the Code. In addition, the UDA's certification order provided that its scope was limited to performers, who are independent contractors.
In its decision, the Board accepted TVA and the UDA's contention, which was that a specific analysis must be applied to the concept of independent contractor in the case of artists since, by virtue of the very nature of that occupation, it is evident that the producer retains some control over the service performed by the artist. Accordingly, the traditional criteria for determining whether a person is a dependent or independent contractor, such as the degree of control and economic dependence, form part of a contextual analysis.
The Board concluded that applying these criteria strictly, without taking the particular context of the arts world into account would make the Status of the Artist Act meaningless. Accordingly, although a producer may have a degree of control over the work performed by an artist, for example in terms of work schedules or by imposing a broadcast theme or programs constraints, those factors cannot prevent an artist from being an independent contractor within the meaning of the Act.
Applying those principles to the evidence submitted to it, the Board concluded that Mr. Lévesque was an "artist" within the meaning of the Status of the Artist Act and performed the duties of television host, which fall within the scope of the UDA's certification order.
By concluding as proposed by Groupe TVA and the UDA regarding the interpretation of the notion of independent contractor, the Board essentially followed the path outlined by the courts in tax cases, adapting the independent contractor traditional criteria developed in that field to the situation of artists. Thus, the Board opened the door to a more contextual interpretation of the notion of independent contractor in certain circumstances.
Moreover, in this important decision, the Board also stated that the meaning of a "universal" bargaining unit may vary having regard to the particular context between the parties.
 2018 CIRB 889
 S.C. 1992, c. 33
Originally published September 6, 2018
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