7. The Employment Contract & the Services Contract Flashcards
What is an employee?
A contract of employment is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer. (art. 2085 CCQ)
What is an independent contractor?
A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. (art. 2089 CCQ)
The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client. (art. 2099 CCQ)
What is the key distinction between between an employee and a contractor?
“The contract in issue was governed by the law of Quebec. It was therefore necessary to consider whether the contract was a “contract of employment” or a “contract of enterprise” as those terms are defined in the Civil Code of Québec [S.Q. 1991, c. 64]. It is generally accepted that, under the Code, the key distinction lies with the of or control, but in the jurisprudence, the distinction is also examined in light of the tests now found in Wiebe Door and Sagaz […].”
(Royal Winnipeg Ballet v. M.N.R. (F.C.A.) 2006 at para. 50)
Read about the legal test (Sagaz)
“[…] there is no universal test to determine whether a person is an employee or an independent contractor […] the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.”
(671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (S.C.C.) 2001 at para. 47)
Name all the factors related to employees and independent contractors?
Key factor: subordination and control
Employee - subordinate to employer
Contractor - not subordinate
Other factors: intuitu personae
Employee - must perform work herself/himself
Contractor - not obligatory, can hire others
Tools and equipment
Employer - provides to employee
Contractor - provided by contractor
In Quebec, what are employment contracts governed by?
In Quebec, employment contracts (of provincially regulated employees) are governed by the following three important laws:
- the Civil Code of Quebec
- the Labour Standards Act
- the Quebec Charter
What is a contract of employment?
A contract of employment is a contract by which a person, the employee, undertakes for a limited period to do work for remuneration, according to the instructions and under the direction or control of another person, the employer. (art. 2085 CCQ)
What are the elements in an employment contract?
Paid- employee must be paid
Bilateral contract- each party has a obligation to complete
Intuitu personae- employee must personally carry out the work
Subordination - control by employer
What are the conditions for the formation of a contract?
- Must have legal capacity
- Offer and acceptance
- Voluntary exchange of consent
- Oral or written
Discuss term in an employment contract
- Fixed term
- Indeterminate term
Discuss termination in the employment contract
- When fixed contract ends (exception: tacit renewal)
- By agreement
- By notice (art. 2091 CCQ)
- By death of the employee (art. 2093 CCQ)
- By superior force (art. 1470 CCQ)
- For a good and sufficient cause
Discuss tacit renewal of fixed term contracts
A contract of employment is tacitly renewed for an indeterminate term where the employee continues to carry on his work for five days after the expiry of the term, without objection from the employer. (art. 2090 CCQ)
What are the employer obligations?
- Provide work
- Remunerate
- Provide a healthy & safe environment
- Maintain dignity of employees
(art. 2087 CCQ)
What are the 3 employee obligations?
- Work
- Duty of loyalty (during and post employment)
- Respect non-competition clauses
Discuss work as an employee obligation
Work
- with prudence & diligence - to the best of abilities
- as directed - within public order
