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.
What happens if you’re buying / selling a practice or doing a corporate re-organization and you need to transfer an associate / staff agreement over to the new corporation? Is it binding and enforceable? Do you need the associate or staff’s consent to assign? Let’s look at the recent Alberta case of Goska J. Nowak Professional Corp. v. Robinson,  A.W.L.D. 3752. There, the Alberta Court of Appeal had to determine whether a non-compete clause in a dentist associate agreement was binding in light of a series of transfers / transactions taking place.
Here’s what happened:
Everybody with me so far? This is fairly standard stuff in the world of dental practice mergers and acquisitions… but I digress…
So at trial, the judge basically said that the associate agreement with the non-compete was particular to Dr. Robbie Robinson as a consequence of his skill. Thus, it could NOT be assigned without his consent and was unenforceable in the absent of that consent. So when R. Robinson PC transferred its assets and was dissolved in 2002, it disavowed all of its rights under the associate agreement and abandoned any rights to services under the agreement. Per the trial judge, the associate agreement was effectively unenforceable – even after Dr. Nowak revived R. Robinson PC to try to enforce the agreement.
On appeal, the Court of Appeal agreed with the trial judge:
The topic of paid sick days came up recently for a client who called my office. It was good timing since the Toronto Star just published an article on a similar topic. Of course I was happy to share some knowledge with the Dentist, and I thought I would share it with our online community as well.
As you can see, the law generally permits unpaid leave when illness or an emergency is involved. There is nothing said about paid sick days.
Paid sick days for minor illnesses are sometimes seen in unionized employment (where that benefit is negotiated), where that benefit is negotiated in an employment contract, or where the employer and employee have agreed to such an arrangement over the course of time. As a small employer, a Dentist could choose to provide paid sick days as an additional employment benefit (like a fitness allowance for example), but it is not mandatory that small employers in Ontario provide paid sick days.
WHAT TYPE OF ILLNESS OR INJURY?
The type of illness or injury is also important to consider from a practical standpoint. For dental employees working very closely with the public (I don’t think there is a profession that works any closer!), a Dentist may want to
encourage sick employees to stay home for a day for the benefit of their patients and not worry about losing a day of pay.
In any event, if the illness is a common cold, that could be a paid or unpaid sick leave (subject to the unique employment situation).
If the employee, for example, has a broken leg and needs to sit in a certain chair to work, then the employee may not need to take a sick day – the Dentist could accommodate that employee and perhaps get the employee a special chair. This avoids unpaid leave for the employee and avoids a significant disruption to your business.
If, in an extreme example, the employee discloses they have an alcohol addiction and need time off work, employers are required to accommodate. Unpaid time off would probably be included as part of that accommodation.
I also wanted to draw attention to two specific types of employees as they relate to sick days.
In summary, paid sick days can be treated as an additional benefit to being employed in your dental practice. But, Dentists are not required to provide paid sick days to employees of your small business.
Filed under Blog, Staff · Tagged with absence, accommodation, associates, critically ill child care leave, dental lawyers, dentists, denturist, disability, DMC LLP, family medical leave, hygienist, Jonathan Borrelli, leave, leave of absence, organ donor, paid sick days, personal emergency leave, sick, sick leave, sick time, time off, unpaid sick day
This is an update to my blog What’s in a Name? What Dentists Need to Know about Naming Their Dental Practice. There, I talked about the types of names a general or specialty dental practice is permitted to have, but I did not discuss mixed specialty practices and co-mingled speciality and general practices. That’s the topic of this blog…
Whether we are talking about a general practitioner hiring a specialist associate or partnering up with a specialist, the Royal College of Dental Surgeons of Ontario (the “RCDSO“) naming rules for mixed general and specialty practices are the same:
Separate RCDSO naming rules govern situations of two or more different kinds of specialists practising out of the same location (whether in partnership or as associates):
For further guidance on practice names, you can contact us or the RCDSO directly or visit them online for useful publications: www.rcdso.org. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
Congratulations! You just bought or started up your very own dental practice. Now you want to give your practice a sleek, catchy name that will attract patients and give you an edge over the dentist across the street. But what name should you choose? How about “Best Smile Dental” or “Number One Dentist in Toronto”. Maybe “Dentistry on Smith Street”. Or how about “Pear Tree Dental”?
Dental practice names must be applied for and approved by the executive committee at the Royal College of Dental Surgeons of Ontario (the “RCDSO“). It is considered professional misconduct to operate a dental practice under a name which is not approved by the RCDSO, with very few exceptions (such as “Family Dentistry”).
According to the RCDSO, practice names cannot include the use of descriptive terms about the practice, the practitioner, the equipment, materials, expected treatment results or any other aspect of dental practice. So the names “Best Smile Dental” and “Number One Dentist in Toronto” that you were considering earlier are unacceptable.
So, if the name of your dental practice cannot refer to “any other aspect of dental practice” then what can the name refer to?
According the the RCDSO, and from our experience, dentists who submit applications for a name which is reasonably referable to the location of the practice are normally approved. So, names such as “Dentistry on Smith Street” would be acceptable. Also, names such as “Lake View” or “Mountain View”, if you are close to a lake or mountain would also both be acceptable. However, names such as “Toronto Dentistry” may not fly, because there are thousands of other dental practices in Toronto, so that description may not be “reasonable” in the eyes of the RCDSO.
At this point you might be asking “what about areas that are so saturated that most names referring to the area or location of the practice are already taken?”
In such a situation, the RCDSO recommends that you choose a name which is completely unrelated to dentistry, such as a non-offensive object like “apple”, “tree” or “sun”. So, names such as “Pear Tree Dental” and “Sun Dentistry” will most likely be acceptable ones. But… object names are only acceptable so long as they are not “unprofessional” and do not refer to any other aspect of dental practice such as “Molar Dental”.
Specialist practices, such as orthodontic, periodontic, etc. have other rules imposed on them. The RCDSO practice advisory on practice names states that the specialty referred to must be one of the 11 recognized specialties of the RCDSO and all the dentists (including associates) who practice in the office where the name is used must be registered with the RCDSO as specialists in that branch of dentistry. So, if you are a periodontic specialist practice with the name “Smith Street Periodontics” who wants to hire a general dentist a few days per week – you might find yourself in some trouble. For further reading on mixed specialist and mixed general practice and specialist practice names, click here.
For further guidance on practice names, you can contact us or the RCDSO directly or visit them online for useful publications: www.rcdso.org.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
Filed under Blog, Buying / Selling a Practice, Dental Marketing, Incorporating, Start Ups, Uncategorized · Tagged with associate, associates, dentist, dentistry, general practice, names, naming, naming practice, partnership, rcdso, rules, specialist, specialist dentists, specialty practice, specialty services
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.