Preliminary Matters for Employment Law (9:IV): Difference between revisions

Note that different statutes have different objectives and definitions, and as a result, “employee” and “independent contractor” may be interpreted differently under each statute. These interpretations are generally similar and sometimes follow the same tests; however, the ''ESA'' and particularly the ''HRC'' may define “employee” more broadly than the common law tests would – see [[{{PAGENAME}}#2. Employees v. Contractors - Employment Standards Act | Sections IV.D.2]] and [[{{PAGENAME}}#3. Employees v. Contractors - Human Rights Code | IV.D.3]], below. As a result, those who would be categorized as dependent or independent contractors under the common law may sometimes be categorized as employees under the ''HRC''.

When considering an employment related claim, it will be important to determine if the claimant was an employee, dependent contractor, or an independent contractor.   

If the worker appears to be a dependent or independent contractor, and the worker has a legal issue that is covered by the ''ESA'' or the ''HRC'', see Sections IV.D.2 and IV.D.3 below to determine whether these statutes’ broader definitions of “employee” include the worker in question. Otherwise, continue to the next step of the checklist.

The distinction between employees and independent contractors under the ''Employment Standards Act'' is quite similar to that under the common law. It should be used when pursuing a claim at the Employment Standards Branch.  

Generally speaking, the ESA is to be given a wide and liberal interpretation (per ''Interpretation Act'', RSBC 1996, c 238, s 8; see also ''Machtinger v HOJ Industries Ltd'', [1992] 1 SCR 986 and ''Rizzo & Rizzo Shoes Ltd (Re)'', [1998] 1 SCR 27). The legislation is always  construed broadly when determining whether someone is or is not an employee.

The distinction between employees and independent contractors under the ''Human Rights Code'' should be used when pursuing a claim at the Human Rights Tribunal.  

The Canadian Human Rights Tribunal also uses a broader definition of employment compared to the common law; see ''Canadian Pacific Ltd v Canada  (Human Rights Commission)'', [1991] 1 FC 571 (CA),  at paras 9-15.

The Supreme Court of Canada recently upheld a British Columbia decision extending employer occupational health and safety obligations to contractors. See West Fraser Mills Ltd. v. British Columbia (Workers Compensation Appeal Tribunal) 2018 SCC 22.  If a contractor has been injured in the workplace, explore whether employee occupational health and safety regulations may apply to the contractor.