A recent Canada Industrial Relations Board decision has raised questions about the threshold that individuals must meet to be considered dependent contractors who are therefore entitled to reasonable notice on termination without just cause.

Dependent contractors, while not formally considered employees because of the degree of control and independence they enjoy, are workers who offer services to multiple clients but derive their earnings from a single source to a significant degree. While determining whether an individual is a dependent contractor involves a multi-pronged test, courts haven’t identified a bright line test for the degree of economic dependency required.

“Ontario courts, for example, have ruled that the test for a dependent contractor requires the individual to perform ‘substantially more than 50 per cent’ of their work for a single employer,” says Rob Lilly, a partner at labour and employment firm Levitt Sheikh. “What’s not clear is precisely what ‘substantially more’ means.”

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However, in CIRB adjudicator Amanda Rogers’ recent decision in Gee v. Corus Entertainment Inc., she suggested that ‘substantially more than 50 per cent’ could amount to not much more than 50 per cent.

The case arose in 2021 when Corus dismissed Dana Gee, a regular on-air guest on Corus’ Global News one to three times a week since 2001. Gee also provided similar commentary for the Vancouver Sun, The Province and was a features writer for Postmedia Network Canada Corp., in addition to hosting her own podcast. Roughly 25 per cent of Gee’s income came from her work with Corus.

Corus maintained that Gee was an independent contractor and therefore not entitled to notice. The company argued that she wasn’t a dependent contractor because she wasn’t economically dependent on Corus and didn’t work exclusively or nearly exclusively for it.

Rogers agreed. “Turning to the question of whether the complainant meets the test for a dependent contractor, the Board finds that the undisputed facts establish that she was not economically dependent on Corus. Rather, the uncontested facts are that she worked for various other media outlets throughout her tenure with the employer and that only 25 per cent of her income was from Corus.”

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But Rogers went on to say that 25 per cent was “well below the near-exclusivity threshold of at least 50 per cent as contemplated in [the jurisprudence],” suggesting — according to some interpretations — that in appropriate circumstances, a 50 per cent economic dependency could suffice, if other aspects of the test were met, to qualify as a dependent contractor under the Canada Labour Code.

Rogers’ suggestion gains force on a close examination of the dependent contractor jurisprudence. While courts have said that exclusivity or near exclusivity was sufficient to ground dependent contractor status, no court has decided that exclusivity or near exclusivity was necessary for that status. The fact remains; however, that courts have only found workers to be dependent contractors if they worked exclusively or nearly exclusively for an employer.

Barry Fisher, a Toronto-based arbitrator and mediator in employment and labour law matters, agrees that Rogers’ decision has controversial aspects. “But there’s something to be said for having a clear line in the form of the 50 per cent threshold in the sense that it makes for a test that’s easier to apply.”

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