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EMPLOYER-EMPLOYEE RELATIONSHIP - Employee, what constitutes

Thursday, September 19, 2019 @ 6:24 AM  


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Appeal by the defendant from a decision dismissing its motion for summary judgment dismissing the respondent’s action. The respondent, a sole practitioner lawyer, provided legal services to the appellant pursuant to a series of agreements for 13 years. There was no automatic right of renewal for the contracts. The respondent maintained an independent legal practice while working for the appellant. The appellant did not renew the respondent’s retainer following the expiry of the last agreement. The respondent brought a claim alleging that she was a dependent contractor and was therefore entitled to 20 months’ notice of termination. In finding that the respondent was a dependent contractor, the motion judge noted the permanence of the respondent’s relationship with the appellant, the fact that she performed work that was integral to the appellant, and the public perception that she was a lawyer with the appellant.

HELD: Appeal allowed. The motion judge misapprehended the nature of the legal standard for a dependent contractor and failed to give effect to several relevant considerations in applying that standard. Over the course of her retainer, an average 39.9 per cent of her annual billings came from the appellant. This could not be said to constitute exclusivity or near-complete exclusivity, such that economic dependence on the appellant was established. The appellant was only one of the respondent’s clients. The respondent’s loss of the appellant’s retainer resulted in a 39.9 per cent reduction in the billings generated by her legal practice which was insufficient to establish the requisite economic dependency. The longevity of the respondent’s retainer with the appellant did not transform it into a relationship of enduring dependency. The terms of the retainer made it plain that the respondent had no entitlement to any minimum level of work.

Thurston v. Ontario (Office of the Children's Lawyer), [2019] O.J. No. 4007, Ontario Court of Appeal, G. Huscroft, G.T. Trotter and B. Zarnett JJ.A., July 31, 2019. Digest No. TLD-September162019011