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Amendments to Ontario’s ESA: Misclassification of Employees Riskier Than Ever for Hirers

Dec 5, 2017

The consequences of misclassifying employees as independent contractors have always been serious. Just a few examples of the risks hirers face if they make this make include liability for overtime pay, lawsuits arising from vicarious liability or lack of reasonable notice when ending the working relationship and damage to reputation. Workers risk being potentially deprived of their rights under relevant worker legislation and shouldering responsibilities and risks that they might not be best suited to bear.

But now the negative consequences of misclassification for hirers are far greater. Amendments to Ontario’s Employment Standards Act, 2000 (“ESA”) came into force on November 27, 2017. These amendments include criminal prosecution for hirers who misclassify their workers under certain circumstances. In certain proceedings or investigations by employment standards authorities, there is a rebuttable presumption that a worker is an employee and the hirer has the burden of proving otherwise (see newly added section 5.1 to the ESA).

Hirers therefore need to review their practices and processes to ensure that they are meeting their responsibilities to classify workers correctly. Employment Foresight ’s Worker Classifier provides an accurate and easy to use tool for checking a worker’s classification, decreasing the likelihood of making a mistake and increasing peace of mind for both hirers and workers.

How Can Employment Foresight Help?

Employment Foresight (“EF”) uses machine learning to predict worker classification. EF’s Worker Classifier analyzes a hirer-worker relationship using over 25 different factors and compares the relationship to those in the hundreds of litigated cases that address this legal issue. To determine how a court, board, or tribunal would likely resolve your case, you need only fill out a short, easy-to-use questionnaire.

Employment Foresight is Accurate, Easy to Use—and Insightful!

EF’s Worker Classifier provides the user with the likely outcome and a confidence rating. EF ties these together with an explanation into the likely outcome that gives the user additional insight, indicating how the different relevant factors affected them.

In a recent test, we used EF’s Worker Classifier to predict the likely outcome in 40 recent cases that the EF program had not seen before. These cases were from 2016 to 2017 and not yet in EF’s database (see the table at the end of this post).

Employment Foresight correctly predicted the correct outcome in 36 of the 40 cases – an accuracy level of 90%. These included three cases where the worker was found to be a Dependent Contractor.

Even more impressive was how confident the EF algorithm was in its predictions. In 31 of the 36 correctly predicted cases, our program was at least 80% confident in its result. In 25 of those, EF was over 90% confident.

There were four cases where our algorithm predicted the incorrect outcome. But, in doing so, our algorithm identified these as borderline fact patterns. EF’s confidence rating for these four cases suggested that these were close cases that required closer examination by the user.

Key Takeaway

Changes to Ontario’s employment standards legislation emphasize that the proper classification of workers is more important than ever and hirers bear the responsibility for ensuring this is done. EF’s Worker Classifier is an accurate, easy to use and insightful tool that can help hirers meet their responsibilities and give both hirers and workers more clarity as to the nature of their relationship. Try it here.

Table - EF Worker Classifier predictions of 40 cases it had never seen before
Case Outcome of Litigation EF Predicted Outcome (Confidence %)
2374432 Ontario Inc. and Singh, Re, 2017 CarswellNat 5054 (Canada Adjudication) Employee Employee (95%+)
A1600690 (Re), 2017 CanLII 53436 (BC WCAT) Employee Employee (95%+)
A1601945 (Re), 2017 CanLII 53434 (BC WCAT) (Samra) Employee Employee (95%+)
Bajwa and Singh, Re, 2017 CarswellNat 2501 (Canada Adjudication) Employee Employee (95%+)
Benyoussef v. Institute of International Education Canada (IEC) Inc., 2017 CanLII 27446 (NBLB) Employee Employee (81%)
Decision No. 36/17, 2017 ONWSIAT 169 (Blake) Employee Employee (95%+)
Decision No. 36/17, 2017 ONWSIAT 169 (Jones) Employee Employee (95%+)
Decision No. 256/16, 2017 ONWSIAT 897 Employee Employee (95%+)
Decision No. 292/17, 2017 ONWSIAT 479 Employee Employee (95%+)
Decision No. 502/17, 2017 ONWSIAT 797 Employee Employee (95%+)
Decision No. 842/16, 2017 ONWSIAT 2438 Employee Employee (79%)
Decision No. 1201/17, 2017 ONWSIAT 1469 Employee Employee (95%+)
Decision No. 1996/17, 2017 ONWSIAT 2162 Employee Employee (95%+)
Decision No. 2563/16, 2017 ONWSIAT 2566 Employee Employee (91%)
Decision No. 3254/16, 2016 ONWSIAT 3517 Employee Employee (95%+)
David K. Baker v. 9111140 Canada Inc., 2017 CanLII 22971 (OLRB) Employee Employee (95%+)
Econome Inc. v. Robert Champagne, 2017 CanLII 14543 (OLRB) Employee Employee (95%+)
GCAT Group Inc. v. Striiuc, 2017 CanLII 56922 (OLRB) Employee Employee (95%+)
Iron Eagle Express Ltd. and Telenga, Re, 2017 CarswellNat 1849 (Canada Adjudication) Employee Employee (93%)
Keary v. Grapevine Publications, 2017 CanLII 61275 (OLRB) Employee Employee (95%+)
Keast v. Irafasha, 2017 CarswellOnt 7452 (OLRB) Employee Independent Contractor (67%)
LIUNA, Local 183 v. Gates of Humber Ridge Inc., 2017 CarswellOnt 14386 (OLRB) Employee Employee (82%)
Quorum Construction (BC) Ltd. and UBCJA, Local 2103, Re, 2017 CanLII 12367 (ALRB) Employee Employee (95%+)
Simply Green Home Services Inc., Re, 2017 CarswellBC 2064 (BCEST) Employee Employee (95%+)
TAAN Forest Limited Partnership and USW, Local 1-1937 (Woodlands Letter of Understanding), Re, 2017 CanLII 5278 (BCLA) Employee Employee (85%)
TCF Ventures Corp. v. Cambie Malone’s Corp., 2017 BCCA 129 Employee Employee (85%)
Thistlexpress Inc. v. Dykas, 2017 CarswellOnt 13668 (OLRB) Employee Employee (95%+)
Unifor, Local 597 and Saputo Inc., Re, 2017 CarswellNfld 383 (NFLRB) Employee Employee (84%)
2413985 Ontario Inc. v. Tengg, 2017 CanLII 36640 (OLRB) Independent Contractor Independent Contractor (77%)
9171-5367 Québec inc. c. H & R Transport Ltd., 2017 QCCS 3207 Independent Contractor Employee (61%)
Decision No. 389/17, 2017 ONWSIAT 1695 Independent Contractor Independent Contractor (95%+)
Decision No. 1088/17, 2017 ONWSIAT 1442 Independent Contractor Independent Contractor (95%+)
Decision No. 2071/12R2, 2017 ONWSIAT 1090 Independent Contractor Employee (62%)
Grand-Maison and Papineau Int. SEC, Re, 2017 CarswellNat 3038 (Canada Adjudication) Independent Contractor Independent Contractor (95%+)
Robinow and Calian Ltd., Re, 2017 CarswellNat 3945 (Canada Adjudication) Independent Contractor Independent Contractor (88%)
Tuffnail, et al v. Meekes et al, 2017 ONSC 4610 Independent Contractor Independent Contractor (94%+)
Glimhagen v. GWR Resources Inc., 2017 BCSC 761 Dependent Contractor Dependent Contractor (74%)
Milk and Bread Drivers v. Canada Bread Co., 2017 CanLII 62172 (OLRB) Dependent Contractor Dependent Contractor (74%)
Riverside Door & Trim Inc. v. Carpenters and Allied Workers (UBCJA, Local 27), 2017 CanLII 15010 (OLRB) Dependent Contractor Dependent Contractor (66%)
Spicer v. Carpenters' District Council of Ontario (UBCJA), 2017 CarswellOnt 4101 (OLRB) Dependent Contractor Dependent Contractor (55%)