Ontario Court of Appeal Upholds 26 months’ Notice to Deemed Dependent Contractors

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In our Summer 2015 Newsletter, we reported on an Ontario Superior Court of Justice decision whereby two dependent contractors, Mr. and Ms. Keenan, with respectively 32 and 25 years of service, were awarded 26 months’ wages in lieu of reasonable notice of termination.

At issue at trial was whether the plaintiffs were dependent contractors or independent contractors of Canac.

On appeal, the Court upheld the trial judge’s decision that they were dependent contracts and reasoned that:

  • The Keenans were economically dependent on the company due to complete exclusivity or a high level of exclusivity.
  • A determination of exclusivity must involve consideration of the full history of the relationship between the parties.
  • While the Keenans did some work for another competitor in 2008 and 2009, the “substantial majority” of their work continued to be done for Canac.
  • Given the Keenans’ ages, length of service, and the character of the positions they held, the Court did not interfere with the award of 26 months’ notice.

When determining whether a contractor is dependant or independent, the courts will weigh the exclusivity of the relationship between the parties. The more economically dependent the worker is on the company due to a high level of exclusivity, the more the courts will favour a dependant contractor relationship for the purposes of common law reasonable notice entitlements.