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

• Author: Geoffrey England
• Pages: 11-21

CHAPTER

2

IDENTIFYING

A

CONTRACT

OF

EMPLOYMENT:

WHO IS AN "EMPLOYEE"

AND

WHO

IS

THE

"EMPLOYER"?

This

chapter analyzes,

firstly,

the

definition

of an

"employment" rela-

tionship,

and

secondly,

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

"employee"

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 common

law

implied rights

and

obligations

—

such

as the

duty

to

give reasonable notice

of

termination

—

only apply

to

contracts

of

employment stricto

sensu.

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

1 For

detailed elaboration

of

this topic

see G.

England,

I.M.

Christie,

& M.

Christie,

Employment

Law in

Canada,

3d

ed.,

looseleaf

(Markham,

Ont.:

Butterworths,

1998)

c. 2

[Employment

Law in

Canada}.

n