News & Views

Independent Contractor or Employee? A Contract is Not Determinative
May 09, 2019

Independent Contractor or Employee? A Contract is Not Determinative

Written by Amanda Maio

The definition of “employee” under the Employment Standards Act, 2000, S.O. 2000, c. 41, is not particularly helpful when trying to determine if someone is an ‘employee.’ The ESA has long been complemented by the common law, as the Courts and Tribunals continue to provide guidance in this regard. 

The common law has established that “employee” status should be interpreted broadly and liberally to encompass vulnerable workers, since the policy objectives of the ESA and Human Rights Acts are protective and remedial in nature.* Having a contract that classifies a person as an independent contractor is not determinative. Adjudicators may conclude that the individual is an employee, despite a contract stating otherwise, if an examination of the relationship between the parties indicates as such.

When assessing the relationship of the parties, the courts will look at the entirety of the relationship to make a determination. A central question for the courts and adjudicators is whether the person who has been engaged to perform the services is performing them as a person in business on his or her own account.* Although there is not one conclusive test, there are some common factors that courts and adjudicators will consider when evaluating a relationship. Some factors include the following:

1. Control – What was the degree of control exercised by the employer over the individual?

2. Ownership of “Tools” - Did the employer provide their own tools, materials or equipment to complete the work, or were these supplied by the employer? Did the individual invest in equipment that was used to perform their tasks?

3. Chance of Profit - What was the individual’s opportunity for profit in the performance of his or her tasks?

4. Risk of Loss - What was the degree of financial risk taken by the individual?

5. Exclusivity - Was the individual limited exclusively to the service of the employer/principal?*

An adjudicator will look at all of these factors and more. A low level of control may indicate an independent contractor relationship, but if the employer supplies all of the materials, tools and equipment to the worker, this may indicate an employee-employer relationship. Since a broad and general interpretation is applied to the definition of “employee”, in borderline situations, courts and adjudicators normally find in favour of the individual having “employee” status.* This list is not exhaustive and as employment relationships continue to evolve, the relevant factors and considerations will undoubtedly expand as well.

The takeaway: when entering working relationships with others it is beneficial to consider the above noted list of factors in an effort to ensure your relationship would be defined in the way you wish it to be.

For more information, please contact Amanda Maio directly at [email protected] or at 905 763 3770 x 209. 

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


*Halsbury’s Laws of Canada (online), Employment (2015 Reissue)

*“Definition of Employee: Statutory and Common law” (III.2.(2)) at HEM-89  “Common Law Tests.”

*671122 Ontario Ltd. v. Sagaz Industries, [2001] S.C.J. No. 61, [2001] 2 S.C.R. 983 (SCC)

About the Author:

Amanda Maio focuses primarily in the area of commercial litigation. Through the continued mentorship and guidance of the experienced litigation lawyers at FIJ, Amanda works with both large financial institutions and individual clients to support their litigation needs.

Changes to the Trademarks Act are Coming June 17 - Five Things Businesses Should Know
April 25, 2019

Changes to the Trademarks Act are Coming June 17 - Five Things Businesses Should Know

Written by Pauline Bosman

The Canadian Trademarks Act has undergone substantial changes which take effect June 17, 2019. The changes are designed to streamline the registration process in Canada and to align Canadian trademark law with international laws and standards, and to implement the international trademark agreement known as Madrid Protocol so that businesses can file in multiple foreign jurisdictions through a single application filed in Canada.

1. USE REQUIREMENT: Trademark applications will no longer have to identify the date of first use of the trademark, or have to declare an alternate filing basis such as proposed use or reliance on a foreign registration. The number of trademark application filings is expected to increase as a result, including the number of trademark filings by trademark trolls (who have not used and do not intend to use the mark) seeking to charge others to license or purchase rights in the mark. If you have an unregistered trademark you are seeking to protect, or have a new trademark for products in development, consider filing trademark applications as soon as possible. Also, trademark owners should consider adding goods and services they may offer in future when filing an application to save future filing and prosecution costs, as there is no requirement to show use in respect of these goods and services prior to registration of an allowed trademark application.

2. EXPANDED DEFINITION OF TRADEMARK: Generally speaking, trademarks distinguish the goods or services manufactured or sold by a business from those of others. Under the changes to the Act, in addition to word marks, logos, and sounds, trademarks may now include smells, tastes, textures, holograms, moving images and colours. The trademark owner must show that the trademark is sufficiently distinctive or different from other marks to identify the trademark owner as the source of the goods or services.

3. FILING FEES ARE INCREASING: All goods and services are classified in one of 45 classes that make up the international Nice Classification system which has been adopted by Canada. As with most jurisdictions, Canada will be implementing per class filing fees, meaning that the cost of trademark applications which list goods in several classes will rise. Previously, there was one filing fee per application. If you are planning to apply for a trademark in multiple classes, file now to save filing fees. Note, however, that once a trademark has been allowed to proceed to registration, there will no longer be a final registration fee for new applications.

4. DIVIDING APPLICATIONS: Trademark applications may be divided into two or more applications, dividing the goods and services as listed on the initial application. Therefore, should there be an opposition to registering the trademark in association with some goods and services but not others, the trademark in association with the goods and services not in issue may proceed separately (to registration) while the opposition in respect of goods and services in issue proceeds separately.

5. TERM OF REGISTRATION REDUCED: The term of a trademark registration is being reduced from 15 years to 10 years. The reduction in the term will not affect current registrations until their next renewal date.

If you have any questions or wish to discuss registering a trademark in Canada or abroad, contact FIJ lawyers, Pauline Bosman at [email protected] or (905) 763-3770 x235 or Ryan Hanna at [email protected] or (905) 763-3770 x211.

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

Pauline Bosman is an accomplished litigator who understands that litigation success depends on managing the process as much as on judging the merits of the case. In her client-centric approach, Pauline first takes the time to identify client needs and goals. She then devises a solution that makes sense—strategically, practically and financially.