Another flaw in the "Driver's Inc" model occurs when the marriage ends between the Carrier and the Employee, sorry I mean't Independent Contractor
. The "employee" then runs to the Canada Labour Board and files a complaint stating that he just realized he was an employee and not an IC, and that he did not received stat holidays, vacation pay, and had his pay reduced by unauthorized deductions for damages etc.
99.9% of the time the CLB sides with the employee, and the Carrier is ordered to pay up.
The CLB relies entirely on
Sagaz v 671122 Ontario, a Supreme Court of Canada ruling wherein it was stated:
47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.