[11] Counsel for QCH put forward a good analogy which I will adopt. When a developer hires various tradespeople to construct a building, the developer imposes on those tradespeople that they will not only construct the building but that they will do so in accordance with numerous provincial and municipal building codes and safety regulations and that, as necessary, they will provide reports confirming that they have done so. In these circumstances, the developer is not controlling how, for example, the electrician does his or her job. The developer is simply stating that the job that the electrician is being hired to do is to wire the building in accordance with the law.
[12] The same can be said for QCH. QCH is simply engaging workers to perform services in accordance with the law. …
Also important to this decision:
“[15] I find that the most telling aspect of the relationship between QCH and Ms. Fobear was the means by which the work was assigned. That aspect strongly indicates that Ms. Fobear was an independent contractor. QCH did not assign work to Ms. Fobear. It did not assign foster parents to Ms. Fobear. It did not specify when or where Ms. Fobear was to work. In fact, QCH had no direct knowledge of where, when or even whether Ms. Fobear was working until the end of the month when she sought payment for that work[3]. The choice of which child and youth worker to use, when to use them, how often to use them and for what purpose they would be used was made entirely by the foster parents. Ms. Fobear was free to turn down work from any foster parent and the foster parents were free to continue to use or not to use Ms. Fobear as they saw fit. Ms. Fobear could work with as many foster parents as she wished. QCH did not guarantee Ms. Fobear a certain minimum amount of work. If Ms. Fobear was sick or had to miss a shift that she had previously arranged with a foster parent, she advised the foster parent of the problem, not QCH. It was then up to the foster parent to make other arrangements.”
Note also that the chance to work more hours does not imply a chance to earn a profit:
[26] The only way that Ms. Fobear could earn more money was to work more hours. Since the Federal Court of Appeal decision in City Water v. The Queen[4], it has generally been accepted that a worker who is paid by the hour does not have a chance of profit simply by having the ability to earn more by working more. …
See Quinte Children’s Homes Inc. v. M.N.R. 2015 TCC 250 (Graham)