Question

In August 2018, Mr. Brown commenced a wrongful dismissal action against Ascent Service Group (“Ascent”).

Ascent is a maintenance and repair company. It contracts with the Starducks coffee chain to maintain and repair its approximately 1200 Canadian stores. Its BC office provides these services to approximately 200 stores in the Vancouver area. The BC office has two employees: an operations manager and a warehouseman. They work closely with Ascent’s main office in Toronto, Ontario, which has seven employees.

Ascent’s main services are signage, cleaning and “handy work”, which means general maintenance and repair. It contracts with workers to perform those functions and has approximately 53 such contracts across Canada, one of which is with Mr. Brown.

Mr. Brown and Ascent entered into an oral contract to provide handy work services commencing January 1, 2018. Mr. Brown’s contract was terminated without notice on April 25, 2018, giving rise to the present dispute.

 

The legal issue for you to determine is whether Mr. Brown is an employee or an independent contractor.

 

To help with your analysis, here are some additional facts:

a)     Ascent assigns work to workers such as Mr. Brown (called “Vendors”). Assignments specify the type of work, the location and the timeframe for completion, usually between 24 hours or five days. Vendors may accept the assignment, decline it, or request changes. Ascent will then either assign the work to a different Vendor or make the requested change. Therefore, Ascent had a limited power to select Mr. Brown for work.

b)    With respect to payment of wages, Mr. Brown invoiced through his company, “112” on its letterhead upon completion of assignments. Like other Vendors, he charged Ascent GST. Ascent pays Vendor invoices monthly and does not make any deductions or remittances from those amounts, such as income tax, CPP, EI or workers’ compensation. Mr. Brown/112 was Ascent’s primary Vendor for about 20 Starducks stores in BC and Alberta. Mr. Brown/112 invoiced at rates set by Ascent for labour and specified materials.

c)     There is no evidence that Ascent trained Mr. Brown to any significant degree. It provided him with a tablet computer with invoicing software, and a master key to access Starducks stores after hours. Ascent’s Vancouver operations manager, Jenn, accompanied Mr. Brown on an initial maintenance walk-through. Jenn also accompanied Mr. Brown on his first assignment. Other than that, Mr. Brown performed the work using his pre-existing skill and expertise. At times, Ascent asked Vendors to provide an estimate of the time and/or cost for completing an assignment. Mr. Brown/112 provided such estimates.

d)    Beyond specifying the nature of the work in the work assignment, Ascent exercises little control over how Vendors accomplish their assigned tasks. Vendors are free to determine when they complete the work within the specified time range.

e)     Ascent had the right to terminate Mr. Brown’s/112’s services and did so on April 24 or 25, 2019, as a result of a customer complaint.

f)     Mr. Brown/112 was Ascent’s primary vendor in the Vancouver area for the four months he worked with Ascent. Ascent’s uncontested evidence is that the relationship was not exclusive and Mr. Brown was free to take on other work. There is no evidence about whether Mr. Brown took on such work.

g)    Ascent’s evidence shows that Mr. Brown/112 issued approximately 109 invoices to Ascent for the roughly four-month period from January-April 2018, for a total of $18,000, including GST. Mr. Brown produced an invoice for each assignment. Ascent paid these invoices twice a month. The amounts varied. For example, Mr. Brown’s invoices for February 2018 totalled $4,773.48 and his invoices for April 2018 totalled $6,818.97.

h)    Mr. Brown could and did hire helpers to assist in performing services for Ascent. The evidence shows that Mr. Brown hired a few such individuals, including his son. Mr. Brown did not separately itemize hours of labour performed by each individual on his invoices; he simply invoiced Ascent for the total amount of labour performed.

i)      Apart from a tablet computer and an access card/master key, there is no evidence that Ascent provided any equipment or tools to Mr. Brown. Mr. Brown provided his own truck.

j)      The nature of the relationship between Mr. Brown and Ascent provided Mr. Brown with some opportunities for profit and loss. Mr. Brown could and did hire others to do certain work. If he paid them less than the hourly labour rate he billed to Ascent, he could profit.

k)    Mr. Brown was not crucial to Ascent’s business. Ascent operates across Canada, servicing around 1200 Starducks stores. Mr. Brown was one of several handymen, with primary responsibility for handy work on about 20 stores. Ascent had others who did the same work as he. He was not irreplaceable and there is no evidence that his removal materially affected Ascent’s operations.

l)      Mr. Brown’s activities did not represent Ascent’s business in any public way. He did not wear a uniform or display any other material demonstrating a relationship to Ascent.

 

Using the concepts you learned during the semester, answer the following questions:

 

1.     Why does it matter if Mr. Brown is an employee or an independent contractor?

 

2.     What legal tests are available to help us determine if Mr. Brown is an employee or an independent contractor (list the different tests)?

 

3.     Using the legal test(s) that you think are most helpful, provide your analysis of whether Mr. Brown is an employee or an independent contractor.