[Guy Louie]

Re: Anonymous

You're entitled to your opinion but I would suggest that one should check with the CPP/EI ruling unit in CCRA since they're the one who will rule on whether or not you are an employee. And if you are actually considered an employee when you think you are a contractor there are penalties (just like if you didn't pay your taxes). You can appeal to the courts if you disagree with them.

And although many sources of income may be something they look at I highly doubt that having many sources of revenue necessarily makes one self-employed. If that is the case then all casual workers who work at say three or four fast-food outfits would consider themselves self-employed.

[Guy Louie]

Re: Contracts

I am a parent who has set up an ABA program for our son. Although I'm a C.A. and not a lawyer I'm concerned about a number of misconceptions regarding contracts and employer/employee relationships that have been posted.

1. A written contract does not determine what the business relationship is between you and the therapist. The relationship is determined on the facts and a written agreement cannot change that. i.e. you cannot have someone agree not to be an employee, if in fact he/she is an employee. So whether or not you have a written contract is not relevant in determining whether you are an employer.

2. Regardless whether you actually provide a written agreement also doesn't change the fact that there is still a contract between you and the therapist – whether a contract of services (employer-employee) or a contract for services (client-independent contractor).

3. Personally for me since there is already an implied contract, I might as well spell out what is expected of each parties so that there are no disagreements. Often I find that if it is not spelled out, parties are left to assume what the terms are and what each are expected to do. It just makes the business relationship work so much better when each knows what each will be responsible for. A contract need only set out in general terms the business relationship and need not go into the specifics of how the therapy will be carried out.

4. The test whether a person is an employee or self-employed is based on four factors: Control, Ownership of Tools, Chance of profit/risk of loss and Integration. These came out of a court case, Wiebe Door, many years ago and is still the case often cited in CPP/EI cases on the issue of employee vs. self-employed. As Parents we are not running a business so the last two factors, Chance of profit/risk loss and Integration do not have much relevance. However, for Control and Ownership of Tools the facts are: Parents, as the payers, control the hours worked, sets the quality of standards to be met, supervises and assesses the quality of the work, decides how the work is performed, decides on the work location, assigns the individual tasks, provides the ABA training for the therapists, and supplies the material (toys, puzzles, books, table, chairs, etc.) used for the training. All these factors point more towards a finding that a Parent is an Employer and Therapists are employees and not contractors. Contractors are usually contracted for a specific task but are left to decide on their own what they need to get the job done, how the work is performed including being allowed to subcontract the work, what material to use, and when they do it. True contractors generally have a set goal to meet (e.g. "paint your house") but have total freedom to decide when and how the work required is done. They can take time off if they want to as long as they complete the job as per the terms of the contract. I doubt if we would ever allow therapists that freedom to do as they wish and come and go as they please.

On the other hand the behavioural consultants, speech paths and OTs provide professional advice but do not actually carry out the day to day work so they are contractors like lawyers and accountants.

In my opinion, the therapists ARE employees and it is not possible to contract out of it by having the therapists agree that they are contractors. As employees they have certain Employee rights including a safe working environment and those can't be arbitrarily taken away by the parent. If they are injured on the job they can claim WCB and WCB may, if they determine you to be an employer, assess you for the premiums unpaid as well as recover the costs for compensation for the "employee" who was off the job. (WCB premiums are basically no-fault insurance for employers). Unfortunately that is the law and the bureaucrats will apply the law and assess CPP and EI, WCB if the relationship is in fact that of an employee even though you have an agreement with the therapist to be treated as contractor.

There is also an earlier post that suggests that therapists who work less than 15 hours/ week are considered self-employed and that anyone working minimal hours are considered contractors. I have never heard of such a cutoff and do not know where in law that such a cutoff is provided. There are many casual workers who work very few hours at any one particular place and no one would consider them to be self-employed. On the CCRA website there are a number of publications on employer-employee relationships http://www.ccra-adrc.gc.ca/E/pub/tg/rc4110/rc4110ed.html and one specifically on Employment Relationship Between People With Disabilities and Their Caregivers http://www.ccra-adrc.gc.ca/tax/individuals/taxkit2001/fs_caregivers-e.html. Nowhere in any of those publications can I find a reference that there is a cutoff of 15 hours before one is considered an employee. In fact reading the CCRA publication a babysitter most likely is considered an employee.

If there are any lawyers out there, please correct me if any of my comments are incorrect in law.

[Guy Louie]

We are in the process of hiring our Therapists for our ABA program. One of the things we need to do as part of the IEII Funding Option is to have Criminal Record checks on all those we hire.

Having never done such a check before, we're at a loss as to where we should go to get such a check done, what forms we need and how much it costs. We live in North Vancouver.

[Author]

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