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The court would look at a number of factors to determine, as a whole, whether the employer has the level of control and direction over the individual so as to make that person an employee, as opposed to an independent contractor.

Recently, the Ontario Superior Court considered the issue in the context of commissioned insurance brokers. In that situation, the evidence established that:

• the producers were entitled to work for more than one business;
• the producers could hire assistants without the company′s consent;
• there were no minimum or maximum hours;
• the producers could work from the company′s location or another location;
• compensation was entirely commission based;
• the producers were responsible for their own expenses;
• if the producers worked from the company′s premises, they were required to pay a rental fee; and
• the company had no authority to discipline the producers.

As a result, the court concluded that the producers were independent contractors, based on the lack of control and, in those circumstances, the severance provisions of the Employment Standards Act did not apply.

Submitted by Norman Grosman, Senior Partner, Grosman, Grosman & Gale - Employment Lawyers.



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