) ) DEBORAH FISHER ) ) Andrew H. Monkhouse v. Samantha Lucifora, 2017 ONSC 5943

CITATION : Fisher v. 6007325 Canada Inc., 2017 ONSC 5943 DIVISIONAL COURT FILE NO.: 411/16 DATE: 20171004 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, GAREAU and MATHESON JJ. BETWEEN: ) ) DEBORAH FISHER ) ) Andrew H.

Monkhouse and Samantha Lucifora , for the Plaintiff (Appellant) ) ) Plaintiff (Appellant) ) ) – and – ) ) 6007325 CANADA INC. ) Neil Abbott , for the Defendant (Respondent) ) ) Defendant (Respondent) ) ) ) HEARD at Toronto: October 4, 2017 SWINTON J. (Orally) [ 1 ] The sole issue in this appeal is whether the trial judge erred when he found the appellant to be an independent contractor rather than a dependent contractor. [ 2 ] The appellant concedes that the trial judge articulated the correct legal test as set out in McKee v.

Reid’s Heritage Homes Ltd. , 2009 ONCA 916 , but submits that the trial judge erred in the application of the test in this case. [ 3 ] According to McKee , three factors should be considered: (1) economic dependency; (2) exclusivity; and (3) permanency (see paras. 24-25). [ 4 ] However, McKee provides that “the status of a work relationship admit[s] a broad discretion to the trier of fact”; there is “no one conclusive test which can be universally applied”; and “what must always occur is a search for the total relationship of the parties” (see para. 37).

The Court also stated at para. 38, “this language endorses a case-specific, discretionary analysis” and that analysis is “best left to the trier of fact, who is closest to the facts of the case and has the best handle on the true nature of the work relationship”. [ 5 ] At para. 47 of his reasons, the trial judge considered the correct factors, and he made numerous findings of fact there and elsewhere in his reasons about the nature of the parties’ relationship including: (1) there was no contractual obligation of exclusivity; (2) the appellant’s economic dependency was self- induced; and (3) he did not find a relationship of permanency. [ 6 ] In our view, the trial judge did not err by conflating seniority and permanency, but rather he considered the length of the relationship as one fact in his overall analysis. [ 7 ] Contrary to the appellant’s submission, the trial judge did not require, as a general principle, that workers work for a long period of time in order to qualify as a dependent contractor.

[ 8 ] The trial judge’s findings with respect to economic dependency and exclusivity were open to him on the evidence before him. He did not err in making those findings. [ 9 ] The third ground of appeal is premised on the appellant’s view that this was a close case, and the appellant should have been found to be a dependent contractor based on public policy considerations.

In our view, she has not demonstrated that this was a close case, and we therefore do not need to address the public policy argument. [ 10 ] Accordingly, the appeal is dismissed. [ 11 ] I have endorsed the Appellant’s Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered today. Costs to the respondent fixed at $8,000.00 all in, an amount agreed upon by the parties.” ___________________________ SWINTON J. I agree ___________________________ GAREAU J. I agree ___________________________ MATHESON J.

Date of Reasons for Judgment: October 4, 2017 Date of Release: October 5, 2017 CITATION : Fisher v. 6007325 Canada Inc., 2017 ONSC 5943 DIVISIONAL COURT FILE NO.: 411/16 DATE: 20171004 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, GAREAU and MATHESON JJ. BETWEEN:

DEBORAH FISHER Plaintiff (Appellant) – and – 6007325 CANADA INC. Defendant (Respondent) ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: October 4, 2017 Date of Release: October 5, 2017