Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
For many years, the distinction between an employee and independent contractor has been the centre of debate in the employment law field. The distinction comes from the similarities that both statuses have, yet employers have often chosen the standing that best suits them, especially when a business uses a blend of both types of workers.
It is important for businesses to evaluate the employment status of each worker to ensure the proper rules are followed according to each. When determining whether a worker is an employee or independent contractor, employers can look at a number of issues.
If a worker is an independent contractor in Ontario, their employer may owe them nothing more than what is stated in their contract. Further, employers find it advantageous to identify a worker as an independent contractor because they do not have an obligation to contribute to income tax, employment insurance and the Canadian Pension Plan. In this case, independent contractors may benefit slightly from being classified as such since they are free to make deductions for business expenses.
When looking into whether a worker fits the status of employee or independent contractor, there is a 4-point test used by the Canada Revenue Agency to determine which relationship exists.1 The first point is control. The main question here is to ask who holds control of the work. If the employee retains the right to hire and fire a worker, and determine what the worker’s wages are, along with the time, place and manner in which the work is done, then the worker will likely be deemed to be an employee. It is important to maintain the right to decide when, where, and how the work is done if the worker wishes to be considered an independent contractor.
The second point is ownership of tools. Independent contractors will supply their own tools, and employees will often use what is available to them from the employer. When workers purchase or rent equipment that require a large investment, it usually indicates that they are independent contractors, as they are the ones incurring a loss when replacing or repairing such equipment.
The third point surrounds the chance of profit or the risk of loss. This point follows on the last and suggests that the worker’s financial involvement speaks to their employment status. An independent contractor has the opportunity to make a profit and also runs the risk of incurring losses, whereas an employee does not cover the operating costs.
The fourth point is integration. The Canada Revenue Agency states that where the worker integrates their activities to the commercial activities of the payer, they are likely an employee. One way to prove integration to your own commercial activities is to have multiple clients. The contractor who has one client insinuates to others that they are in an employee/employer relationship with that client. Further, employers often view incorporation as an indicator of contractor status. However, being incorporated is only one factor and is not conclusive proof that contractor status exists.
Pursuant to the Employment Standards Act (ESA), an employee has the right to things such as vacation pay, statutory holidays, overtime pay and the right to collect employment insurance benefits, whereas an independent contractor does not.
Under section 5.1 of the ESA, it is illegal for employers to misclassify their employees as independent contractors.2 In 2017, Bill 148 was passed and made significant changes to the ESA. One of these changes included the misclassification of workers which now states that if there is a dispute over whether an individual is an employee or an independent contractor, there is a reverse onus on the employer to prove that an individual is not an employee.
Misclassification can sometimes be an innocent mistake by all parties involved, or a conscious decision made by an employer to avoid certain costs and responsibilities. However, in either case, there can be a penalty for both parties. It is important to note that an employer cannot avoid this issue by having the employee sign an employment contract that states they are an independent contractor.
The difference between being an independent contractor or employee can have a huge impact on your Canadian income tax, specifically if you believe you are an independent contractor but the Canada Revenue Agency decides you are an employee. When an employer hires a worker as an independent contractor who is later determined to be an employee, there can be in financial trouble. The employer may be liable for the unpaid taxes and be subject to penalties and interest.
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References
1 Government of Canada ‘Employee or Self-Employed?’ https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/rc4110/employee-self-employed.html#qc_factors2 Employment Standards Act 2000, s.5.1