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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Intern .................. Matt Powell Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales ... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. March 8, 2010 • Law TiMes Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Quebec and the veil: people can wear what they want Quebec has launched a human rights complaint against the province's order that she remove her niqab in French class. I The case comes, of course, as Que- bec has grappled with the issue of rea- sonable accommodation of minorities in recent years. In this instance, the school the woman was attending, CE- GEP de Saint-Laurent, says it tried to accede to the woman's requests. But in n a faint echo of France's ban against Muslim children wearing face veils in schools, a woman in the end, the province decided, she had to remove the niqab in order to learn French, particularly since teachers felt they needed to see her face to correct her enunciation. It's an interesting case, but officials are in the wrong. Learning a language may in some cases require watching the lips but not necessarily so. Mus- lims around the world wear veils of different types, and people understand them just fine, so it's a stretch to say that the woman had to remove her niqab to be successful. At the same time, comments about the issue have revealed some of the atti- tudes behind the case. One report, for ex- ample, quoted a Muslim women's rights activist saying that Canada isn't an Islamic republic. Wearing the veil, of course, has nothing to do with that issue. It's sim- ply a choice some women make that reflects their personal religious beliefs. It's hard to believe, in fact, that the situation ever had to be a public con- cern. Media reports have referenced other problems, such as claims that the woman had asked male students to move away from her. But that's beside the point. The issue at hand is what the woman was wearing, not how she interacted with her classmates. On the face of it, the case appears to be a no-brainer. Other facts may come out to put it in a different light, but so far one group, speaking in a Cana- dian Press report, has framed the issue in the most rational way. "In Quebec, people have the right to wear what they want," Canadian Muslim Forum spokeswoman Kathy Malas said. — Glenn Kauth BY BARRY KURETZKY & MONTY VERLINT For Law Times ment relationship or indepen- dent contracting relationship has puzzled lawyers and the courts for more than a century now. The courts have therefore developed a number of common law tests of employee status that have evolved largely in the contexts of vicari- ous liability in the law of tort and various ancient actions by which masters can protect their inter- est in the service of their servants against third-party interference. The recent Ontario Court T of Appeal decision in McKee v. Reid's Heritage Homes Ltd. is the latest instalment in this ongoing saga and represents a change in the traditional analysis of deter- mining employee or independent contractor status. In this case, the plaintiff, Elizabeth McKee, was a salesperson for Reid's Heritage Homes under a written contract starting in 1987. She received $2,500 for each home she sold, which went to her own company and from which she in turn paid her employees. Eventually, the Employee or independent contractor? Speaker's he question of whether a particular relationship represents an employ- company offered her a new six-month contract. McKee, who was 64 years old, didn't think a time-limited contract was in her best interests and rejected the offer. McKee then sued for wrongful dismissal. The judge found she was an employee and awarded 18 months' pay in lieu of notice of termination. The com- pany appealed, alleging she was really a dependent contractor. In beginning its analysis, the Court of Appeal confirmed there exists an intermediate category of dependent contractor, a term de- fined by economic dependency in the work relationship requir- ing, inter alia, some reasonable notice of termination. However, the court still agreed with the trial judge that what existed here was an employment relationship as opposed to a dependent con- tractor situation. The court reviewed a num- ber of decisions in support of the finding that the law recog- nizes the intermediate category of dependent contractor, citing cases such as Carter v. Bell & Sons (Canada) Ltd. and Mar- bry et al. v. Avrecan International Inc. Having concluded this, the court held that the dependent Corner contractor category arises as a "carve out" from the non-em- ployment category of contractor. The initial step is to determine whether a worker is a contrac- tor or an employee. During this first step, the court doesn't discuss whether the individual is a depen- dent contractor at all. It's only the next part, required if the first step results in a contractor conclusion, that determines whether the con- tractor is independent or depen- dent. In other words, the depen- dent contractor category is carved out of the broader contractor category only if the court finds an individual to be a contractor in the first place. The court was of the view that exclusivity might be the hallmark of the dependent contractor category. Nevertheless, exclusivity also continues to be a factor in determining whether the worker is an employee in the first step of the analysis. The court went on to describe the tests involved in distinguish- ing between an employee and contractor by citing the Supreme www.lawtimesnews.com Court of Canada decision in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. and the Court of Appeal decision in Belton v. Liberty Insurance Co. of Canada. In Sagaz, the top court noted the goal is to ex- amine all of the possible factors referred to in case law bearing on the nature of the relationship. However, there is no magic for- mula for deciding which factors are the determining ones. In McKee, the appeal court found the plaintiff worked exclu- sively for Reid's Heritage Homes, which regularly reviewed her performance and provided her with stationary and forms. She was economically dependent on Reid's and a crucial member of the company. These factors and others favoured an employment relationship rather than contrac- tor status under the first step. Had the appeal court found her to be a contractor, it would have had to proceed to the second step to determine whether the plaintiff was dependent, for which notice is still required, or independent, for which notice isn't required. The court's analysis represents a departure from previous deci- sions. Prior to the ruling, courts that identified an intermediate status of dependent contrac- tor didn't take this two-step ap- proach. They simply reviewed all of the relevant factors and deter- mined whether a worker was an employee, dependent contractor or independent contractor. How- ever, the appeal court's approach now gives an individual another kick at the can, so to speak. For instance, even if the worker isn't successful under the first step and is therefore a contractor, that person can still argue economic dependence on the company. In other words, an individual can still claim for notice of termina- tion as a dependent contractor. As stated by the court, a work- er can demonstrate a dependent contractor relationship by the "complete or near-complete ex- clusivity," and it's this exclusivity that's determinative in the second step of the analysis. We'll wait and see how this decision influ- ences further court decisions and whether it results more favour- ably for people claiming reason- able notice of termination. LT Barry Kuretzky is a senior partner and Monty Verlint practises employ- ment law at Kuretzky Vassos Hen- derson LLP. They can be reached at 416-865-0504.

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