This decision will interest dentists and dental hygienists.
It seems hard for hygienists in most dental practices to claim to be independent contractors. But in this case the circumstances were tougher still:
“[21] … The Appellants own lawyer drafted the Employment Letter, without input on the terms from the worker who saw no opportunity for negotiation.” … the document was laced with tailings of both a services contract and an employment agreement. It narrates repeatedly the intention to establish a relationship of independent contractors, each responsible for the payment of taxes and remittances. However it also contains terms indicative of employment: its title of “Employment Letter”, a unilateral right of the Appellants to change hours of work, a precondition of execution of the document for the continuation of the relationship, the requirement of notice of a particular worker’s absence from the worksite without a right to sub-contract and the requirement of doctor’s certificates after more than one day’s sickness.”
Applying the usual factors set out in the SCC’s decision in 671122 Ontario Ltd. v. SagazIndustries Canada Inc., 2001 SCC 59, Justice Bocock had no trouble finding that the hygienist was an employee.
a) Supervision and Control
“[14] While patients might request the worker’s services, the patients remained those of the Dental Clinic which chose which hygienist a patient saw, where possible taking into account patient requests. …
“[15] Hours of work were scheduled by the Dental Clinic upon advance notice from the worker. Extra work was to be discussed as were any changes to the schedule. The worker was allowed to work elsewhere outside of her scheduled hours. In the present case, the worker did so as an employee. …
…
“[17] In terms of the worker’s daily routine, the worker would utilize the Dental Clinic’s premises, computers, charts, day sheets, attending staff dentist and front office reception staff in order to deliver her entirely on-site provision of services. …
b) Ownership Tools and Equipment
“[18] … [A]ll tools and equipment were supplied, maintained, and replaced by the Appellants. The worker paid for her own licensing fees, insurance, continuing education and uniforms. …
c)Chance of Profit
“[19] The worker had no capital investment in the Dental Clinic, could not manipulate or exploit labour or production costs in order to enhance her profit. The worker could, as always, work more or less hours to increase her revenue. She had no business cards, promotional materials, nor did she have a trade name, corporation, registered business entity and/or business information number. There was no opportunity for the worker to directly hire or sub-contract replacement workers at will. …
d) Risk of Loss and Liability
“[20] The Appellants suggested professional liability related to negligence constituted a risk of loss for the worker. In reality this also was an imposition by the CDHO, which required mandatory malpractice insurance to ensure that personal impecuniosity did not place patients at risk of non-collection for damages arising from the worker’s negligence. Any dental hygienist in Ontario, whether employee or independent contractor, would incur the same responsibility and require the same college provided insurance. …”
See 766743 Ontario Limited (Soben Mgmt Ltd.) v. M.N.R., (2014 TCC Bocock)