1
Parties to the Employment
Contract
Who is an employee?
Employment Law (Parkes)
Spring 2004
Montreal Locomotive
(1947, P.C.)
Not an employment case
Contract OF services vs. contract FOR
services
“Classic test” articulated:
Control
Ownership of tools
Chance of profit
Risk of loss
“Whose business is it anyway?”
Truong v. BC (1999, BCCA)
Court interpreter for BC courts
Montreal Locomotive test applied
Also Wiebe Door (tax case): “total relationship”
Control looms large: (factors)
Master’s power of selection of servant
Payment of wages
Control over method of work
Master’s right of suspension of dismissal
Truong (cont’d)
Apply test(s) to facts
Control: inability to sub-delegate (indicates
not her business)
Countervailing factors discussed
Dissent:
Control not determinative
Thinks plaintiff was in business for herself
Imperial Taxi Brandon
(1987, Man. C.A.)
Employment Standards case
Note definitions now slightly different
Taxi driver – paid less than minimum
wage by the time he paid fees and gas
If independent contractor, no obligation to
pay minimum wage.
Held: employee
Imperial Taxi (cont’d)
Consider PURPOSE of the statute
Purpose of ESC said to be “to prevent
the exploitation” of workers who lack
control over their hours and manner of
work.
Adjudicator examined the common law
factors in this case (in light of statutory
purpose)
2
Judy Fudge, “New Wine in
Old Bottles…” (1999)
Concerned about the “inadequate and
outmoded conceptualization of the
employment relationship as contractual in
nature”
Common law definition of employment:
Fails to capture a wide range of
employment-like relationships; and
Creates an incentive to structure work
relations to avoid legal rights and obligation
Fudge (cont’d)
Common law definition of employment has
tended to “colonize” statutory definitions and
regimes
Boundary between independent contractors
and employees does not work because:
Tests developed for a specific and limited norm of
employ