Beyond Employees and Independent Contractors: A View from Canada

Abstract

This article provides a basic review of Canada’s answer to the question: “Who is an employee as opposed to an independent contractor?” In Canada a significant role in our local production of this global drama has been played by an explicit statutory construction of an intermediate category of “dependent contractor.” This explicit statutory construction was designed to atone for at least partial failures in legal reasoning on the part of labor boards and courts. This paper undertakes a discussion of the relevant Canadian jurisprudence in light of a few starting points such as 1) the idea of eligibility for employment/labor law protection and 2) definitions of employee and employer involving striking circumlocution. The Canadian experience reveals that a really helpful discussion needs to both start at a more basic level, and proceed much further. Our new reality forces us to go back and undertake a discussion of our “traditional problem” in a much more profound light.

Keywords: Employee, Independent Contractor, Dependent Contractor, Labor Law