2015 QCCQ 4630, 2015 QCCQ 4630

Commission des normes du travail c. Centre Latitude Fitness inc. 2015 QCCQ 4630 JP 2262 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL DIVISION No: 500-22-211053-148 DATE: April 28, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ COMMISSION DES NORMES DU TRAVAIL Plaintiff v. CENTRE LATITUDE FITNESS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alleging that the defendant failed to observe the minimal requirements of the Act Respecting Labour Standards [1] , the Commission des normes du travail (the « Commission ») claims $8,331.01, on behalf of a personal trainer, Ms. Dorota Stypik, who worked at the fitness center run by the defendant. QUESTIONS AT ISSUE [ 2 ] The Tribunal must first determine whether Ms.

Stypik was working at the defendant’s fitness centre as an “employee” within the meaning of the Act. [ 3 ] If so, the second question is whether the Commission has established the quantum of its claim. ANALYSIS AND DISCUSSION [ 4 ] In Commission des normes du travail c. Paquette [2] , Mr. Justice Gabriel De Pokomandy reviews a series of criteria considered by the courts to distinguish employees from autonomous workers and independent contractors. As is noted in this case, none of these criteria alone is decisive. [ 5 ] Applying some of these criteria here, the Tribunal remarks that Ms. Stypik set her own

schedule and could come in and out of the centre as she wanted. She did not need to report her whereabouts to the defendant. She was not told how to perform her work nor was she supervised. She was not obligated to accept any one of the defendant’s clients if she did not want to. She accepted the risk of not being remunerated if she was unable to convince clients to train with her. She invoiced the defendant for her services. She declared herself an autonomous worker to the fiscal authorities.

She voluntarily signed a contract with the defendant where she clearly is acting as an independent contractor. [ 6 ] Although this contract contains an exclusivity and non-competition clause in favour of the defendant, this is not sufficient, in the Tribunal’s opinion, to create the economic dependence of Ms. Stypik vis-à-vis the defendant which would have been required for the Tribunal to conclude that Ms.

Stypik deserves the protection of the Act. [ 7 ] Unlike the three employees who were working at the reception and handling the cash registers, and who punched in and out of work into the computer, it appears that all four personal trainers who performed their duties at the defendant’s fitness center acted as independent contractors. [ 8 ] This modus operandi certainly had advantages for the trainers, such as setting their own schedules and being able to have other professional occupations or business endeavours [3] .

It is only normal that it also carries certain disadvantages, such as not benefitting from the protection of the Act. FOR THE FOREGOING REASONS, THE TRIBUNAL: DISMISSES the action; WITH COSTS .

__________________________________ VINCENZO PIAZZA, J.C.Q. Mtre Isabelle Gauthier Rivest, Tellier, Paradis Attorney for the Plaintiff Mtre James R. Nazem Attorney for the Defendant Hearing date : April 23, 2015