In Ocean Nutrition, the SCC reiterated that “a person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being”. The employment relationship displays a marked disparity in bargaining power; consequently, employees are vulnerable to unfair treatment by employers (Wallace). Labour is not a commodity, so special regulations and protection are needed. ESA plays a crucial role as the minimum safeguard for employees in Ontario, such as the minimum wage (Part IX) and notice of reasonable period (Part XV). Despite being the “floor” of employee protection, many ESA provisions fail to offer sufficient safeguards for their working arrangements.
One significant area where the ESA’s provisions fall short is in the regulation of working hours (Part VII, VII.1), causing the problem of getting overtime pay (Part VIII). Individuals on the annualized salaries model often found themselves working beyond the standard hours without receiving penalty rates due to the surge in workload, creating an apparent imbalance and potentially a loophole where employees work more hours without compensation. For instance, employers may assign a task, such as designing a satisfactory solution for a client before a deadline. In completing this task, employees may "voluntarily" work extra hours, rather than being explicitly required. The protection provided by the ESA based on "maximum working hours" becomes increasingly less valuable. This practical gap raises concerns over the ESA’s effectiveness in controlling excessive working hours. With societal developments, there may be shortcomings in the understanding and definition of "working hours”. For example, the time spent answering client calls or replying to international emails may be as short as fifteen minutes. However, the “waiting time” they endure for these tasks could extend for several hours or even the entire day before the official working day. Such prolonged waiting periods, sometimes at night, can impact worker’s health. But the employers consider them to be off-duty time without any compensation.
Additionally, it is imperative that the recent “Disconnecting from Work Policy” (Part VI.0.1) mandated that employers with at least 25 employees can disconnect from work. This policy underscores the legislature’s intention to protect employees from the encroachment of work into their personal time. However, enforcing such policies becomes challenging when home becomes the workplace after COVID-19, blurring the lines between work hours and personal time.
Another critical area is the protected leave under Part XIV, especially concerning maternity leave and the right of women to return to their positions post-pregnancy. The case of Bracebridge Villa exemplifies the difficulties female employees may face after pregnancy, indicating a gap between the legal protections and practical realities that workers encounter. Sometimes, remedies are not the sole purpose for female employees. Potential challenges for women in the workplace include experiencing stunted career growth and being relegated to the “mummy track”.
Contrastingly, while the ESA grants employees rights like leaves and overtime pay, independent contractors are excluded from these protections, highlighting a gap in employment law. While the Canada Labour Code extends some protections to dependent contractors, it excludes independent contractors. Workers require sufficient time for rest, leisure, and fulfilling their responsibilities towards their families and communities. For instance, in some low-skill manufacturing and service industries, these individuals are often forced to work more than the maximum working hours as independent contractors. In addition, these independent contractors usually have their family responsibilities and financial burdens, and when they compromise with reality, ESA does not provide them with the most basic protection to balance their family responsibilities. By excluding independent contractors from the minimum work safety net, achieving the objectives of the ESA is impossible.
In many cases, companies usually prepare standardized contracts with fixed terms for workers to sign. It becomes challenging to imagine workers effectively safeguarding their interests through contractual terms if the company want to classify them as independent contractors by manipulating the written format. Courts have recognized this issue, as exemplified in the decision from Braiden, which determined that contractual wording alone is not conclusive in worker classification. This view was further cemented by the ruling in Beach Place Ventures, which clarified that employment relationships should be assessed contextually. However, the existing legal criteria used to ascertain a worker’s status, which focuses on the degree of control and dependency (McCormick, Beach Place Ventures, Rahman), may not adequately capture the nuances of contemporary work arrangements that have evolved rapidly in response to the COVID-19 pandemic. The traditional indicia used to determine employee status from Braiden, such as control over work activities, supply of equipment, financial risk, and opportunity for profit, are now in a grey area to some extent. For instance, remote workers might choose their own schedules using their own equipment, hinting at contractor status, yet remain reliant on one company for income, like traditional employees. Moreover, the pandemic has seen a rise in project-based work and the use of digital platforms to assign tasks, which can complicate the dependency assessment. A worker might source tasks from multiple platforms, suggesting less dependency on any single company,
In conclusion, the ESA's protections are inadequate and lack inclusivity, underscoring the need to extend them to include independent contractors to ensure a fairer and more inclusive employment system.
About the author
Yicheng Ru is currently a third-year Juris Doctor student at the University of Ottawa. Before starting law school, she completed degrees in Accounting, History, and International Political Studies. She is a full member and a CPA accredited by CPA Australia. Her future aspirations extend across various legal fields, notably Corporate Governance, Securities Law, Tax Law, WTO Law, AI, Employment Law, and Construction Law.
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