Identifying a Contract of Employment: Who Is an 'Employee' and Who Is the 'Employer'?

• Author: Geoffrey England
• Pages: 16-30

CHAPTER 2

IDENTIFYING A

CONTRACT OF

EMPLOYMENT:

WHO IS AN “EMPLOYEE”

AND WHO IS THE

“EMPLOYER”?

This chapter f‌irst analyzes the def‌inition of an “employment” relationship

and then the determination of who the “employer” of an employee is.

A. STATUS AS AN “EMPLOYEE”

It is critically important to distinguish between working relationships

based on an employment contract in which the worker is an “employ-

ee” and those based on a contract for services in which the worker is an

“independent contractor.”1 The vast majority of protective employment

statutes, including the labour standards legislation and important com-

mon-law–implied rights and obligations — such as the duty to give rea-

sonable notice of termination — only apply to contracts of employment

strictosensu. Exceptionally, protective legislation may apply to workers

who are not employees — for example, the human rights acts and the

occupational health and safety acts. Moreover, the courts have implied

into contracts for services some of the rights and duties that are usually

found in employment contracts, such as the right not to be summarily

f‌ired without just cause. Generally speaking, however, the assumption

1 For detailed elab oration of this topic, see G. England , R. Wood, & I. Christie,

Employment Law in Ca nada, 4th ed., looseleaf (M arkham, ON: LexisNexi s Can-

ada, 2005–) c. 2 [Employme nt Law in Canada].

16