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Phrase of the Week - Organization Test

Phrase of the Week - Organization Test

Organization Test



... the “Organization Test” is sometimes framed as this question: whether the purported employee performs his service “as an integral part of the business” or “is only accessory to it”.

Calgary (City) and CUPE, Local 38 (Policy Grievances), Re  |
2012 CarswellAlta 1446 (Alta. Arb.) at para. 196 |
J. Leslie Wallace (Chair)

... Spence J. [in Co-operators Insurance Assoc. v. Kearney (1964), 48 D.L.R. (2d) 1] went on, however, to focus on the organization test as a further means of distinguishing an employee/employer relationship from an independent contractor arrangement. At pp. 22-3 Spence J. noted the following: 
Fleming in his valuable text on the Law of Torts, 2nd ed., pp. 328-9, states: 
Under the pressure of novel situations, the courts have become increasingly aware of the strain on the traditional formulation [or the control test], and most recent cases display a discernible tendency to replace it by something like an “organization” test. Was the alleged servant part of his employer's organization? Was his work subject to co- ordinational control as to “where” and “when” rather than the “how”? [citing Lord Denning in Stevenson, Jordan & Harrison Ltd. v. Macdonald[1952] 1 T.L.R. 101, 111.]
. . . . .
Focusing on Lord Denning's comments in Stevenson, Jordan & Harrison Ltd., supra., the organization test would appear to turn on the question of whether the individual's work is an integral part of the employer's business or is only accessory to it.

Don Mills Foundation for Senior Citizens v. S.E.I.U., Local 204 |
1984 CarswellOnt 2392 (Ont. Arb. Bd.)  |
Picher and Lewis (Arbitrators)
 
The law of master and servants is of value to us in this determination and can demonstrate the distinction between [employees] and independent contractors ... [The] organization test was approved and applied by Spence J. in Co'operators Insurance Assoc. v. Kearney (1964), 48 D.L.R. (2d) 1 (S.C.C.) ... In that case, at pp. 22 and 23, the Court quoted with approval the following passage from Fleming, The Law of Torts, 2nd ed. (1961), at pp. 328-9: 
Under the pressure of novel situations, the courts have become increasingly aware of the strain on the traditional formulation [of the control test], and most recent cases display a discernible tendency to replace it by something like an “organization” test. Was the alleged servant part of his employer's organization? Was his work subject to co-ordinational control as to “where” and “when” rather than “how”? [citing Lord Denning in Stevenson, Jordan & Harrison Ltd. v. Macdonald[1952] 1 T.L.R. 101, 111 (U.K.)]

Social Planning Council (Metropolitan Toronto) v. C.U.P.E., Local 1777 |
1980 CarswellOnt 2139 (Ont. Arb. Bd.) |
Knopf, Griffin and Barstow)

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