In a recent decision1 (available in French only), the Administrative Labour Tribunal of Québec (the "Tribunal") concluded that in the absence of consideration received in exchange for work performed, a person should not be considered a "worker" within the meaning of the Act respecting industrial accidents and occupational diseases2 (the "Act").
The Facts
In this case, the worker's brother owned an auto parts dismantling and cutting business. The worker had been self employed as an independent operator for several years and sometimes helped his brother with the dismantling and cutting of auto parts. It was in this context that the worker sporadically performed cutting and dismantling tasks for the business in question, a task that tragically led to his death.
While the deceased worker's estate considered this to be an industrial accident entitling him to death benefits, the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST") found that the deceased was not a "worker" within the meaning of the Act at the time of his death, since he was not paidfor the work he performed.
Decision of Tribunal
In considering the appeal of the CNESST's decision lodged by the deceased's estate, the Tribunal first noted that a contract of employment, which requires a person to agree to perform work in exchange for wages, differs from a commercial or service agreement, in which a person undertakes to carry out physical or intellectual work or to provide a service for a price that the client undertakes to pay. In both cases, consideration is provided for the work performed.
In this matter, the Tribunal noted that there was no documentary evidence to show that remunerationwas intended to be paid or was paid to the deceased for the work performed, and therefore no evidence of the company's intention to assume the risks related to the tasks voluntarily performed by the worker.
Even if some form of remuneration had been provided, the Tribunal was of the view that given the relevant factors, the deceased could not be considered a worker under the Act, given his status as an independent operator. The case law establishes that the following criteria must be considered when determining the nature of the contract between the parties:
- ownership of tools;
- risk of profit and loss;
- ownership of clientele;
- worker's obligation to perform the work themself or the possibility of being replaced;
- presence of directions or orders from one party to the other;
- exercise of disciplinary power;
- existence of performance evaluations;
- form of remuneration;
- control over work schedule and time off;
- existence of instructions with regard to the performance of work and the procedures to follow; and
- obligation to attend meetings or training sessions.
In analyzing these criteria, the Tribunal noted that the deceased had his own dismantling business and had been acting as an independent contractor for several years. The Tribunal also found that the company for which the deceased was performing the dismantling and cutting tasks at the time of his death had not provided him with any direction, training or supervision, and did not have any disciplinary authority over him. While the estate indicated that the deceased was paid "under the table," there was no evidence of this on file.
Given the company's lack of obvious control over the deceased's work, the Tribunal found that it was more likely that he acted for the company as an independent operator. The deceased was therefore not a worker within the meaning of the Act at the time of the events. As a result, the estate was not entitled to any death benefits under the Act.
Takeaways
At a time when entrepreneurship is flourishing, resulting in a surge in the number of independent contractor or consulting agreements, the Tribunal's decision reminds us of the importance of the principles applicable to determining a worker's status for occupational health and safety purposes. Indeed, this determination is crucial in determining whether a person is eligible for compensation in the event of a workplace accident in provinces where self-employed workers are excluded from the occupational health and safety regime.
The decision is also a reminder to employers across the country who hire self-employed workers to properly define the scope of their contractual relationship in light of this criteria, which are generally applied by Canadian courts. By doing so, the risk of any dispute arising over the qualification of a worker will be reduced; which disputes can otherwise force companies to bear unforeseen risks that are inconsistent with their original intention.
Footnotes
1. Succession de Croteau et GMC Métal inc., 2023 QCTAT 2803.
2. CQLR, c A-3.001 (the "Act").
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