Yes, it’s true. The Ontario Ministry of Finance has started to audit dentists in order to ensure they have paid enough Employer Health Tax (EHT) for all employees. And they’re disputing dentist’s characterization of hygienists and associates as independent contractors (instead of employees)(! If they believe they should have been employees, then the practice would be on the hook for paying EHT, plus interest and penalties!!!
This is VERY BIG NEWS because, industry wide, many associates are considered independent contractors and their contracts are set up in that manner. But just saying in an agreement that a hygienist or an associate is an independent contractor ISN’T ENOUGH to actually make them so.
Canadian courts use the following four-fold criteria to determine whether a person is legally considered to be an independent contractor:
See Montreal v. Montreal Locomotive Works Limited,  1 DLR 161 (PC); Wiebe Door Services Ltd. v Minister of National Revenue,  2 CTC 200; and 671122 Ontario Ltd v Sagaz Industries Canada Inc., 2001 SCC 59.
Individuals who exert control over their own work, own their own tools, have the chance to profit and run the risk of loss will generally be considered independent contractors.
Importantly, the Supreme Court has held that there is no conclusive test to determine whether a person is an independent contractor or an employee The Courts will look at the totality of the relationship to determine if an individual is an employee or an independent contractor. More specifically, all of the facts must be considered in light of the common understanding of the parties’ legal relations. In other words: (1) was the subjective intention of the parties established or reflected in writing and / or by action and (2) does the objective reality, based on the four-fold criteria set out by the courts, sustain or deny the subjective intention of the parties?
See Royal Winnipeg Ballet v. Minister of National Revenue (2006), 2006 CarswellNat 2425 (Federal Court of Canada).
If you’ve been contacted by the Ontario Ministry of Finance about this, contact DMC LLP immediately and we will work with you to help get you the best possible results. If you haven’t been contacted yet, contact DMC LLP right now to help PREVENT this from happening by having your contracts drafted properly and the realities reflect a more truly independent relationship.
As we expected, the Ontario Government announced how they are going to update employment and labour laws in Ontario. After the lengthy Changing Workplaces Review was completed this month, the government moved fast to tell us which of the recommendations they would implement.
Dentists in Ontario should take note of the following updates to the law that will likely come into effect in 2018 or 2019: Read more
Filed under Blog, Dental Hygienists, Staff · Tagged with $15, $15 minimum wage, 3 hour payment, changing workplaces review, dentist lawyers, DMC LLP, employee, employment law, employment standards, ESA, esa enforcement, holiday pay, independent contractor, Jonathan Borrelli, jonathan n borrelli, minimum wage, ministry of labour, on-call, overtime, paid vacation, refusal to accept shifts, schedule changes, training
Spring is in the air! April showers have come and gone, the flowers are blooming, planting
of our vegetable gardens has already begun, the warm weather is upon us. It’s a great time of year.
A great time of year for Ontario Ministry of Labour Workplace Inspection Blitzes and Initiatives!
Filed under Blog, Dental Hygienists, Staff · Tagged with audits, blitz, employment standards, ergonomics, ESA, falls, holidays, hours of work, inspection, Jonathan Borrelli, minimum wage, ministry, ministry of labour, MOL, needle, needle safety, noise, northern ontario, occupational health and safety, OHSA, overtime, slips, standards, trips, vacation, workplace violence, x-ray
I’ve finally had a chance to review the 280-page federal budget for this year (building upon the work done by Michael Carabash on our blog) with an eye to employment law and what dentists need to know.
Here is my brief overview of changes we can expect as a result of the 2017 Federal Budget: Read more
Filed under Blog, Dental Hygienists, Staff · Tagged with benefits, budget, budget 2017, caregiver, children, cra, disability, DMC LLP, EI, EI benefits, email T4, employee, employees, employment insurance, enforcement, illness, injury, Jonathan Borrelli, maternity leave, parental leave, staff, t4, T4s, team
I just read a good case out of British Columbia that still has an effect here in Ontario – and I know applies to Dentists (who hire employees on probation without a written contract).
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