Intention is important to deduce whether someone is an employee or not.
The case is before the Hon’ble Supreme Court of Canada. Modern Cleaning Concept is a cleaning service situated in Québec. This service inducted cleaners on a hiring basis and referred to them as “franchisees”. The actual job of cleaning was done by these franchisees only. Mr. Bourque owned his own cleaning business in Québec. However, in 2014, he came into a contract with the Appellant in which it was specified that Mr. Bourque shall be an independent contractor. Even though he was an independent contractor, Appellant exercised considerable control on him. Appellant paid Mr. Bourque directly and deducted the amount which was owed by him under the agreement. This totaled up to 43% of the income that he earned. Due to lack of professional prospects, Mr. Bourque left and ended the agreement to return to his own business.
Mr. Bourque sued the Appellant and argued that since he was an employee, he was entitled to a claim of $9,000 of unpaid wages and benefits. On the other hand, the Appellant argued that since Mr. Bourque was an independent contractor, he was not entitled to any benefits that an employee gets.
The question before the courts was that whether Mr. Bourque was an employee of the Appellant or not. Trial court’s judgment came in favour of the Appellant but was overruled by the Court of Appeal for the reasons that the Trial Court erred in defining the roles and positions of the employer and employee in this particular business model. The Hon’ble Supreme Court of Canada dismissed the appeal and analyzed that there are three different parties in the agreement, i.e. Modern Cleaning Concept, its clients, and Mr. Bourque. In the cleaning service arrangements among Modern and its customers, the customers assented much ahead of time to the task of the cleaning agreements to franchisees, however Modern stayed liable subject to its customers if the cleaning services were not conveyed as per the agreement among Modern and its customer. Court referred to the existence of a collective agreement under which similar kind of employees are covered. In the collective agreement decrees, the term “employee” excludes independent contractors. Court said that even though according to the Act and the general principle, independent contractors are not employees, they can still be, if the agreement intended to create that kind of a relationship. For further explanation of the term ‘employee’, the Court referred to precedents like Comité paritaire de l’entretien d’édifices publics v. Caisse populaire Immaculée Conception de Sherbrooke, 43 Q.A.C. 1 and reiterated that “employee” needs to be construed in a wide sense.
In the instant case, the Court explicated that the Appellant kept the risk as well as the chance to make profits and even the risk was well covered when it took 43% of Mr. Bourque’s earnings. This corroborates to the fact that Appellant exercised substantial control over Mr. Bourque and his cleaning business, largely because of which Mr. Bourque couldn’t even expand his own business which concludes that Mr. Bourque was in fact Appellant’s employee.