Contracts - Employee v Independent Contractor. 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.
In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC, 2001) the Supreme Court of Canada sets out the correct legal test for distinguishing between employees and independent contractors:
(2) Employee Versus Independent Contractor
33 The most common relationship that attracts vicarious liability is that between employer and employee, formerly master and servant. This is distinguished from the relationship of an employer and independent contractor which, subject to certain limited exceptions (see Atiyah, supra, at pp. 327-78), typically does not give rise to a claim for vicarious liability. If a worker is determined to be an employee as opposed to an independent contractor such that vicarious liability can attach to the employer, this is not the end of the analysis. The tortious conduct has to be committed by the employee in the course of employment. For the reasons that follow, this second stage of the analysis is not relevant and need not be analysed in the present appeal.
34 What is the difference between an employee and an independent contractor and why should vicarious liability more likely be imposed in the former case than in the latter? This question has been the subject of much debate. The answer lies with the element of control that the employer has over the direct tortfeasor (the worker). If the employer does not control the activities of the worker, the policy justifications underlying vicarious liability will not be satisfied. See Flannigan, supra, at pp. 31-32:
This basis for vicarious liability discloses a precise limitation on the scope of the doctrine. If the employer does not control the activities of the worker it is clear that vicarious liability should not be imposed, for then insulated risk-taking [by the employer] does not occur. Only the worker, authorized to complete a task, could have affected the probability of loss, for he alone had control in any respect. Thus, because there is no mischief where employer control is absent, no remedy is required.35 Explained another way, the main policy concerns justifying vicarious liability are to provide a just and practical remedy for the plaintiff’s harm and to encourage the deterrence of future harm (Bazley, supra, at para. 29). Vicarious liability is fair in principle because the hazards of the business should be borne by the business itself; thus, it does not make sense to anchor liability on an employer for acts of an independent contractor, someone who was in business on his or her own account. In addition, the employer does not have the same control over an independent contractor as over an employee to reduce accidents and intentional wrongs by efficient organization and supervision. Each of these policy justifications is relevant to the ability of the employer to control the activities of the employee, justifications which are generally deficient or missing in the case of an independent contractor. As discussed above, the policy justifications for imposing vicarious liability are relevant where the employer is able to control the activities of the employee but may be deficient in the case of an independent contractor over whom the employer has little control. However, control is not the only factor to consider in determining if a worker is an employee or an independent contractor. For the reasons discussed below, reliance on control alone can be misleading, and there are other relevant factors which should be considered in making this determination.
36 Various tests have emerged in the case law to help determine if a worker is an employee or an independent contractor. The distinction between an employee and an independent contractor applies not only in vicarious liability, but also to the application of various forms of employment legislation, the availability of an action for wrongful dismissal, the assessment of business and income taxes, the priority taken upon an employer’s insolvency and the application of contractual rights (Flannigan, supra, at p. 25). Accordingly, much of the case law on point while not written in the context of vicarious liability is still helpful.
37 The Federal Court of Appeal thoroughly reviewed the relevant case law in Wiebe Door Services Ltd. v. M.N.R., 1986 CanLII 4771 (FCA),  3 F.C. 553. As MacGuigan J.A. noted, the original criterion of the employment relationship was the control test set out by Baron Bramwell in Regina v. Walker (1858), 27 L.J.M.C. 207, and adopted by this Court in Hôpital Notre-Dame de l’Espérance v. Laurent, 1977 CanLII 8 (SCC),  1 S.C.R. 605. It is expressed as follows: “the essential criterion of employer-employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out his work” (Hôpital Notre-Dame de l’Espérance, supra, at p. 613).
38 This criterion has been criticized as wearing “an air of deceptive simplicity” (Atiyah, supra, at p. 41). The main problems are set out by MacGuigan J.A. in Wiebe Door, supra, at pp. 558-59:
A principal inadequacy [with the control test] is its apparent dependence on the exact terms in which the task in question is contracted for: where the contract contains detailed specifications and conditions, which would be the normal expectation in a contract with an independent contractor, the control may even be greater than where it is to be exercised by direction on the job, as would be the normal expectation in a contract with a servant, but a literal application of the test might find the actual control to be less. In addition, the test has broken down completely in relation to highly skilled and professional workers, who possess skills far beyond the ability of their employers to direct.39 An early attempt to deal with the problems of the control test was the development of a fourfold test known as the “entrepreneur test”. It was set out by W. O. Douglas (later Justice) in “Vicarious Liability and Administration of Risk I” (1928-1929), 38 Yale L.J. 584, and applied by Lord Wright in Montreal v. Montreal Locomotive Works Ltd., 1946 CanLII 353 (UK JCPC),  1 D.L.R. 161 (P.C.), at p. 169:
In earlier cases a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive.40 As MacGuigan J.A. notes, a similar general test, known as the “organization test” or “integration test” was used by Denning L.J. (as he then was) in Stevenson Jordan and Harrison, Ltd. v. Macdonald,  1 The Times L.R. 101 (C.A.), at p. 111:
One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.41 This decision imported the language “contract of service” (employee) and “contract for services” (independent contractor) into the analysis. The organization test was approved by this Court in Co-operators Insurance, supra (followed in Mayer, supra), where Spence J. observed that courts had moved away from the control test under the pressure of novel situations, replacing it instead with a type of organization test in which the important question was whether the alleged servant was part of his employer’s organization (from Fleming, supra, at p. 416).
42 However, as MacGuigan J.A. noted in Wiebe Door, the organization test has had “less vogue in other common-law jurisdictions” (p. 561), including England and Australia. For one, it can be a difficult test to apply. If the question is whether the activity or worker is integral to the employer’s business, this question can usually be answered affirmatively. For example, the person responsible for cleaning the premises is technically integral to sustaining the business, but such services may be properly contracted out to people in business on their own account (see R. Kidner, “Vicarious liability: for whom should the ‘employer’ be liable?” (1995), 15 Legal Stud. 47, at p. 60). As MacGuigan J.A. further noted in Wiebe Door, if the main test is to demonstrate that, without the work of the alleged employees the employer would be out of business, a factual relationship of mutual dependency would always meet the organization test of an employee even though this criterion may not accurately reflect the parties’ intrinsic relationship (pp. 562-63).
43 Despite these criticisms, MacGuigan J.A. acknowledges, at p. 563, that the organization test can be of assistance:
Of course, the organization test of Lord Denning and others produces entirely acceptable results when properly applied, that is, when the question of organization or integration is approached from the persona of the “employee” and not from that of the “employer,” because it is always too easy from the superior perspective of the larger enterprise to assume that every contributing cause is so arranged purely for the convenience of the larger entity. We must keep in mind that it was with respect to the business of the employee that Lord Wright [in Montreal] addressed the question “Whose business is it?” [Emphasis added.]44 According to MacGuigan J.A., the best synthesis found in the authorities is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security,  3 All E.R. 732 (Q.B.D.), at pp. 737-38 (followed by the Privy Council in Lee Ting Sang v. Chung Chi-Keung,  2 A.C. 374, per Lord Griffiths, at p. 382):
The observations of Lord Wright, of Denning, L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?”. If the answer to that question is “yes”, then the contract is a contract for services. If the answer is “no” then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. [Emphasis added.]45 Finally, there is a test that has emerged that relates to the enterprise itself. Flannigan, supra, sets out the “enterprise test” at p. 30 which provides that the employer should be vicariously liable because (1) he controls the activities of the worker; (2) he is in a position to reduce the risk of loss; (3) he benefits from the activities of the worker; (4) the true cost of a product or service ought to be borne by the enterprise offering it. According to Flannigan, each justification deals with regulating the risk-taking of the employer and, as such, control is always the critical element because the ability to control the enterprise is what enables the employer to take risks. An “enterprise risk test” also emerged in La Forest J.’s dissent on cross-appeal in London Drugs where he stated at p. 339 that “[v]icarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents.”
46 In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, supra, that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that “no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations . . .” (p. 416). Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, supra, at p. 38, that what must always occur is a search for the total relationship of the parties:
[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose.... The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.
48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.