Can a person be an employee even if he and his employer agree he’s an independent contractor? Yes.
Mr. Mallon was a salesman for his employer. Unlike many of these EI-CPP disputes, where the worker claims to be an employee but the business says he was an independent contractor, here the parties’ “description of the work, of the arrangement and the contract was identical.” (Para. 2.) He wanted to be an independent contractor, as he said he had been formerly with the Toronto Board of Trade. The business agreed.
“This case highlights what is often at the root of these employee versus independent contractor cases, and that is that the involved parties believe they can choose to opt in or out of Employment Insurance (“EI”).” (Para. 11) But Justice Miller said that intention of the parties was not enough:
“as clearly in this case the actions of Mr. Mallon (no invoices, no business expenses, no GST) and the actions of Honeycomb (treating all other workers in similar positions as employees) do not support an intention expressed by words only in the Contracting Services Agreement that an independent contractor relationship was intended.” (Para. 14.)
As ever, “When determining the status of a working arrangement the message must be that the courts will look foremost to the actions and behaviour that define the relationship and determine whose business it is.” (Para. 15)
Reviewing the facts, Justice Miller said Mr. Mallon was an employee.