Part-Time Lawyer Dependent Contractor of the Ontario Government

On March 27, 2018, I argued before the Ontario Superior Court of Justice the issue of whether a lawyer contracting with the government on a non-exclusive basis can be a "dependent" contractor, rather than an independent contractor.

The Honourable Madam Justice Pollak who heard the matter, confirmed, yes.

My client, the government contract lawyer, was engaged by the Office of the Children's Lawyer (the OCL) on a non-exclusive basis for approximately 13 continuous years. The OCL is the government entity acting as the lawyer of minors (individuals under age 18) in child custody, access, and protection cases. In Ontario, any lawyer who wants to practice this area of law must invariably do so through the OCL. With rare exceptions, it is nearly impossible to do so through a private practice law firm.

My client is one such lawyer with a strong interest in this area of law. In order to work on these types of cases, she essentially worked for the OCL part-time on a contract basis, with increasing workload over the course of the 13 years.

Throughout the 13 years with the government, she carried on her own independent private family law practice, with her own business setup and staff. There is no issue that she was never an employee of the government, but rather, a contractor.

Nonetheless, a few factors made her "dependent" on the government, including that

(a) in the course of her OCL work, she was subjected to the OCL's control and direction, fee tariff, file intake and review procedures, client interview processes, and many other policies that dictated the manner of her OCL work;

(b) the work that she performed was integral to the OCL's operations, not ancillary, and the public perception was that she was an "OCL lawyer";

(c) 13 years is sufficiently long to establish permanency; and finally,

(d) her dependency on the OCL gradually grew overtime. Her OCL work initially formed about 15-20% of her overall practice, and overtime grew to about 40-60%, fluctuating from year to year. In the final years with the OCL, approximately half her practice was dependent on the OCL.

In other words, should the OCL cease sourcing work to her, my client's livelihood would be slashed in half. And that was exactly what happened, without cause and insufficient notice.

My client's dependency and reliance on the OCL became abundantly apparent in the years following her termination from the OCL. Her practice suffered, as did her income.

Reviewing her circumstances and considering the legal principles affirmed by the Ontario Court of Appeal in Keenan v. Canac Kitchens Ltd.* and in McKee v. Reid's Heritage Homes Ltd.**, Justice Pollak found her to be a dependent contractor of the OCL***.

This case helps clarify the ofttimes-blurred categories of independent contractors vs. dependent contractor vs. employee. At the same time it opens up more questions for employers and individuals alike on how best to organize business affairs on either side to manage risk exposure.

What we now know is that engagements on a non-exclusive, part-time basis can nonetheless be found to form a dependent contractor relationship. So, now is likely the time to review with your lawyer your own workplace practices, to avoid falling in any legal trap.

*Keenan v. Canac Kitchens Ltd., 2016 ONCA 79

**McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916

***2018 ONSC 2137