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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 99925
Experience:  Lawyer
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I am a small business owner in ontario, Canada. We have had

Customer Question

Hi, yes I am a small business owner in ontario, Canada. We have had a person on contract with us for 2 years. Originally she was doing the work in her own studio then 6 months ago she moved into our space to work. She is paid bi weekly - not a salary but she submits us an invoice and we pay her this way. If we sever our working relationship what are we obligated to do?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: its Ontario, Canada
JA: Is the employment agreement "at will," union, full time or part time?
Customer: full time with us - but she has her own business as well
JA: Anything else you want the lawyer to know before I connect you?
Customer: she is saying we would need to pay her for 2.5 months if our relationship is severed are you able to deal in Canadiana employment law
Submitted: 6 months ago.
Category: Canada Law
Expert:  Debra replied 6 months ago.

Hello! My name is***** you for your question. I'm reviewing it now, and will post back again shortly.

Expert:  Debra replied 6 months ago.

I am a senior lawyer in Ontario.

I'm sorry to hear that you are in somewhat of a difficult situation. Are you saying that she has been hired as a subcontractor essentially?

Does she set her own hours? Does she direct how she does the work or do you? Does she use your materials for hers?

Did you change how you paid her after she started using your space?

Customer: replied 6 months ago.
Essentially she is a designer, has her own line and we are a retailer and she was making things for us. We initially 2.5 years ago put her on salary but she asked to be paid on contract. We agreed to how much she would work and she did the work in her own studio. 6 months ago we created a space in our retail location and she moved in there to do the work she does for us. She continues her own company on the side as well. We are looking to end our relationship and she feels she is owed 2.5 months of pay as she is considering this a termination. We were wanting to change the work she is doing. She has threatened to get a lawyer.
Expert:  Debra replied 6 months ago.

I didn't really get the answer to all my questions yet.

Does she set her own hours? Do you direct how she does the work? Does she use your materials?

Customer: replied 6 months ago.
she had flexible hours - we had a loose requirement from her - we do direct the work and she does use our materials
Expert:  Debra replied 6 months ago.

This is a bit of a tricky situation. It is really not clear what would happen if you went to court. She wants to argue that she is an employee. It is not clear that she would succeed because she insisted that she did not want to be an employee but wanted to be subcontractor. And until six months ago she did you work on the premises. She had flexible hours as well. She invoices you for her time, runs her own business and presumably has other clients.

On the other hand, you do direct the work and she does use material your materials.

Based on your facts I would actually agree that she is not an employee and that she should be treated as a subcontractor now just as she wanted to be and was treated throughout. She cannot have it both ways and decide to choose which she is when it benefits her. If she is a subcontractor then unless there is something in her contract that gives her notice she is not entitled to any notice.

As an employee on the other hand if she is dismissed without just cause she is entitled to reasonable notice or pay in lieu of reasonable notice. There is no likelihood that she would be receiving 2.5 months pay unless she was in a senior managerial position which it seems that she was not. One month per year is at the very, very top of the range and reserved for upper management.

Does that help at least to some extent?

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