Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640 is an appeal of the motion court ruling Thurston v. Ontario (Children’s Lawyer), 2018 ONSC 2137. The motion judge ruled that the Plaintiff, a lawyer with the Ontario Office of the Children’s Lawyer (OCL), was a dependent contractor despite the fact that, on average, 39.9% of her income came from the OCL. 

On appeal, Huscroft J.A. reversed the motions decision, noting that 39.9% of income cannot “be said to be said to constitute exclusivity or ‘near-complete exclusivity’, such that economic dependence… is established”. The Court of Appeal ruled that the worker was an Independent Contractor, in line with Employment Foresight’s prediction, which was made based on several factors, including:

  • The percentage of the worker’s income coming from the hirer 

  • The worker performed services for other parties in the same industry, during the working relationship (namely, the worker’s own private practice of law)

  • The worker did most work at her own office

Notwithstanding the lower court’s Dependent Contractor ruling, Employment Foresight predicted that the plaintiff was an Independent Contractor, as the Court of Appeal ultimately found. 

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