Employee or Independent Contractor? Charting the Legal Significance of the Distinction in Canada

The distinction between employees and independent contractors is crucial in determining the scope of application of labour and employment legislation in Canada, since the self-employed are, for the most part, treated as entrepreneurs who do not require the statutory protections accorded to employees. Yet statistics indicate that most self-employed people resemble employees more than entrepreneurs, in the sense that they are economically dependent on the sale of their labor and are often subject to inferior terms and conditions of work. Using four Canadian jurisdictions as a basis for this comparison, the authors demonstrate that there are wide variations in the personal scope of converge of the common and civil law of employment, collective bargaining, employment standards, human rights and workers’ compensation legislation, as well as social wage and income tax legislation. These variations, it is argued, reflect an ad hoc political process of extending or denying coverage to certain groups of employees while attempt to maintain the formal distinction between employees and independent contractors. Furthermore, the development of increasingly elaborate legal tests has not succeeded in eliminating the uncertainty which often attends the determination of a worker’s status. In the authors’ view, the time has come to consider dissolving the employee-independent contractor distinction, and extending coverage to all workers dependent on the sale of their capacity to work, unless compelling policy reasons exist for a more restrictive approach