Workers found to be dependent contractors awarded 26 months’ notice

Keenan v. Canac Kitchens Ltd.
2016 CarswellOnt 965
Ontario Court of Appeal

Labour and employment law --- Employment law — Nature of employment relationship — Relationships distinct from employment relationship — Independent contractor

Workers were husband and wife employed by employer for 32 years and 25 years, respectively Workers worked as foreman and supervisor of installers for employer until 1987, when employer advised they would cease being employees and become independent contractors responsible for paying installers from money received from employer, at rates set by employer, devoting full-time attention to employer, and working exclusively for employer — In 2007, work slowed down and workers were allowed to do side work for competitor — Workers were dismissed — Workers successfully brought action for damages for wrongful dismissal and were awarded damages of $124,484.04, being equivalent of 26 months' notice — Employer appealed — Appeal dismissed — Trial judge observed that in jurisprudence leading to recognition of intermediate category of dependent contractors, finding that worker was economically dependent on company due to complete exclusivity or high level of exclusivity weighed heavily in favour of conclusion that worker was dependent contractor — Trial judge's observation was not only correct, it was vital to understanding how question of exclusivity was to be approached — Exclusivity was not determined on snapshot approach because it was integrally tied to question of economic dependency.