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EMPLOYMENT LAW:

FIGHTING FOR
Employee Rights
If you’re a federal or private sector employee who
has been treated unfairly, contact us today for a
confidential consultation.
Experienced counsel practising
in:
CIVIL LITIGATION
• dispute resolution
• court actions, applications,
injunctive relief
• commercial disputes
• personal disputes
• mediation and arbitration

EMPLOYMENT LAW

 employment contracts and


consulting agreements
 wrongful dismissal
 conflicts in the workplace
 termination packages
 human rights
Experienced counsel practising
in:
CONSTRUCTION LAW

• construction projects (general


contract/project management/design build)
• preparation of construction contracts
• tender advice and resolution of disputes
• negotiation and litigation of construction
disputes including lien actions and breach of
trust issues
FAMILY LAW
 divorce, separation, custody,
support, property issues
 separation agreements
 cohabitation and marriage contracts
 settlement negotiation and mediation
Experienced counsel practising
in:

EQUINE LAW

• dispute resolution, litigation


• purchase and sale agreements,
boarding agreements and
leasing agreements
• co-ownership agreements and
syndications
• taxation
EMPLOYMENT RELATED
STATUTES
EMPLOYER
LIABILITY

The
Canada
Pension Plan
Act

The
Canada
Labour
Code
HIRING – EMPLOYMENT
CONTRACTS

APPLICATIONS & RECRUITING


DO NOT:
 Ask about age, date of birth, hair or
eye colour, weight or height
 Ask about religious affiliation
 Ask about Canadian citizenship
 Ask for ‘maiden name’ or greeting
identification, i.e. Mr. or Miss.
JOB OFFERS
 Avoid making a verbal job offer with different
written terms later
 Do advise that the offer is forthcoming and send it
in writing
 Do give time for the employee to review
 Do encourage the employee to get legal advice
 Do get signature before work starts
EMPLOYMENT CONTRACTS
CONSIDER:
 Indefinite term or specific
project or task
 Compensation including bonuses

 Describing duties and specifying


ability to change
 Describing the probationary nature of the
position and ability to dismiss without notice
 Providing for Termination
• Ontario Employment Standards Act, 2000 and
related provincial statutes
• Common law (except Quebec)
EMPLOYMENT CONTRACTS
CONSIDER:
• Inserting a non-competition clause
– temporal, geographical, task specific restrictions

• Inserting a non-solicitation clause


– customers, employees

• Inserting a confidential information clause


• Ensure that adequate consideration is
provided for the contractual relationship
EMPLOYEE vs. INDEPENDENT
• Employee CONTRACTOR
– Income tax, CPP, EI – deductions and remittances
– T4’s
– Vacation pay, overtime, holiday pay
– Termination pay
• Independent contractor
– No obligation on principal to pay income tax, CPP, EI – just GST, HST
– Contractor must remit taxes
– Little or no notice of termination
– No EI
– Contractor can deduct his or her business expenses against income
– Relationship built on contract
TESTS – INDEPENDENT
CONTRACTOR

 Control Test
 the degree of direction and control over a worker
 Ownership of Tools
 Chance of Profit
 Risk of Loss
 Organization Test
is an individual’s work an integral part of business
operations of the company?
COMPANY DO’S:

 Require a written contract for services executed


by the contractor.
Include a termination provision in the contract with notice of no
less than an employee’s entitlement under the Employment
Standards Act – do not make reference to the Act in the
contract.
 Make the contract for a definite term or task.
 The contract should indicate that the person is an independent
contractor and not an employee.
 The contract should state that the contractor is responsible for
paying all Government remittances to the appropriate agencies.
It is a good idea to obtain an indemnity from the contractor to
pay remittances required by Government agencies in the future.
COMPANY DO’S:

 Clearly define the scope of authority provided to


the contractor – for example, the contractor may not enter into
contracts on behalf of the company.
 The contract should indicate that the contractor is free to
provide services to others.
 The contract should contain a confidential information clause.
 Ensure that adequate consideration is provided for the
contractual relationship.
 Require invoices for services from the contractor.
COMPANY DO’S:

 Clearly sever a prior employment relationship before entering


into a contractual relationship.
 Consider the application of relevant taxes – GST, HST, etc.
 Require the contractor to obtain a G.S.T. number and to charge
or remit G.S.T. to the Government.
 Where transportation services are provided, specify that the
contractor is responsible for the vehicle and all of its expenses.
 Permit the contractor to hire employees or subcontractors.
COMPANY DON’TS:

 Include a non-solicitation/anti-competition clause in the contract

 Refer to the contractor as a commissioned sales person or


speak of commission sales or salaries in the contract.
 Provide T4 slips.
 Exert control over the contractor’s hours of work, vacation time,
or subject the contractor to company supervision or
performance evaluations.
 Allow the contractor to use company stationary or business
cards.
COMPANY DON’TS:

 Supply a permanent workstation or office space or encourage


the contractor to use company equipment or company staff as
assistants.
 Restrict the number of clients that the contractor can serve.
 Prevent the contractor from soliciting his/her own clients or set
quotas for the contractor.
 Require the contractor to comply with company policies and
discipline procedures.
 Provide medical or disability benefits or vacation pay.
EMPLOYEE MANAGEMENT DO’S

DO:
 Have regular performance reviews
 Create a paper trail
 Show the level of performance required
 Communicate your expectations
 Give clear, prompt and consistent instruction
 Give written instruction
 Give warning memo
 Provide training

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