Law Times

www.lawtimesnews.com LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | JANUARY 28, 2019 BY MEAGAN GILLMORE For Law Times O ntario courts could once again be asked to rule on whether workers are "em- ployees" or "independent con- tractors," a proposed lawsuit says. A recently proposed class ac- tion lawsuit alleges TV produc- tion company Cinef lix has been misclassifying non-managerial production staff on several of its reality TV shows as independent contractors since 2000. Cinef lix produces numerous programs, including Property Brothers. The proposed action is on behalf of those who worked in Ontario. The lawsuit, filed in the On- tario Superior Court in October, alleges that the company violat- ed the Employment Standards Act, breached workers' contracts and acted in bad faith. The claim asks for a declaration that these workers are employees and not independent contractors and for $35,000,000 in general damages and $10,000,000 in punitive, ag- gravated and exemplary dam- ages. Employees are entitled to minimum wage, overtime ben- efits and vacation pay under the ESA, the claim says. Indepen- dent contractors are not entitled to the same benefits. Tassia Poynter, a lawyer at Cavalluzzo Law LLP in Toronto, who is working on the case, says as far as she knows, this is the first class action lawsuit alleg- ing employee misclassification in the factual television industry. "In the rising gig economy, [employee misclassification is] becoming more common," she says. "People working in creative industries are likewise vulnerable to misclassification. It's not just confined to certain industries." The suit could be certified this fall, she says. None of the al- legations in the claim have been proven in court. Cinef lix did not respond to multiple requests for an interview. The claim alleges workers were classified as independent contrac- tors when their work most closely resembled that of employees. The claim details how the company told them when and where to work, provided them with equipment to do their jobs and required them to fol- low company style guides and handbooks. It alleges the com- pany "exerted excessive pressure to have class members to work hours in the excess of the over- time threshold" and that "man- agers would insist upon class members meeting the deadlines set by Cinef lix's pre-determined production schedules, regardless of the number of hours of work required in a day or week in or- der to meet those deadlines." The claim repeatedly alleges that Cinef lix benefited unjustly from these workers. "Cinef lix is/was in a position of power and direct control over the class members and the class members were and are in a vul- nerable position vis-a-vis the de- fendants," the claim says, alleging that Cinef lix failed to fulfil its re- sponsibility to inform workers of their entitlements to minimum wage, and vacation, overtime, holiday and premium pay. "There was no basis for the defendants' arbitrary designa- tion of class members as inde- pendent contractors and in- eligibility for minimum wage, overtime pay, vacation pay and public holiday and premium pay, which was contrary to the employees' express or implied terms of contract with the defen- dants," the claim alleges. "There is no juristic reason for the defendants' unjust en- richment and the class members' corresponding deprivation. The systemic exclusion of the class members from their contractual and statutory entitlements is un- lawful," the claim says. The issue of how to define employees and independent con- tractors is a pressing concern, says Natalie MacDonald, owner of the Toronto employment law firm MacDonald & Associates. "The definition of what it means to be a worker is con- stantly evolving," she says. "I think this is one of the most important topics that we have to date. I think it is a very signifi- cant public and national issue, which needs to be addressed." In 2017, Bill 148, The Fair Workplaces, Better Jobs Act changed the ESA to make em- ployers responsible to prove someone was an independent contractor and not an employee when allegations of misclassifi- cation arise. This changed in December when the government passed Bill 47. It is still an offence to misclassify someone as an em- ployee, but the worker has to prove they are an employee and not an independent contractor. In Ontario, there are also "dependent contractors," but this classification is only in the Labour Relations Act and not the ESA. The LRA defines these workers as "a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, mate- rial, or any other thing owned by the dependent contractor, who performs work or services for another person for compen- sation or reward on such terms and conditions that the depen- dent contractor is in a position Tassia Poynter says she believes the first class action lawsuit alleging employee misclassification in the factual television industry has emerged. Employee misclassification remains key concern FOCUS See Large, page 12 "The definition of what it means to be a worker is constantly evolving." Natalie MacDonald The Bencher Election is Coming Visit out new micro-site devoted to the upcoming LSO Bencher Election with news coverage, candidate profiles and advertising opportunities for bencher candidates. Connect with all facets of the bencher election and make an informed decision by visiting BencherElection.ca today. Untitled-2 1 2019-01-24 10:09 AM

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