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This article was originally published in the March/April 2019 issue of CPABC in Focus magazine, published by the Chartered Professional Accountants of British Columbia.
Click here for a PDF version.
Imagine that a client approaches you and says, “There’s a website developer I want to hire on a six-month contract. If I hire her as a contractor and keep her off the payroll, that should work, right?” This is a topic often discussed in my law practice. Business owners tend to favour the flexibility of contractor positions, but they face significant risk if they don’t fully understand how the Canada Revenue Agency (CRA) differentiates between employees and individuals who are self-employed (i.e., independent contractors). Neither the CRA nor the legal system like to see employees disguised as contractors.
The first principle to understand is that a worker is defined neither by their title nor the wording of their contract (e.g., “Independent Contractor Agreement”). Rather, it is the substance of the worker’s role that determines their category. Let’s revisit the example of the web designer. Before figuring out what your client’s obligations are to the CRA, you must first determine which category the new worker falls under. Under the law, there are three categories:
Most professionals will be familiar with the first two categories, but many will need to better familiarize themselves with the third, as it’s a concept that has been recognized by the courts in a few Canadian provinces. The term “dependent contractor” refers to a worker who may be employed on a contract basis but is in reality a contractor/employee hybrid. To determine if a worker is a dependent contractor, the following questions should be asked:
Under the law, if the relationship bears more resemblance to an employer/employee relationship than an employer/ contractor relationship, the worker will be considered an employee for the purposes of determining severance owed— regardless of the contract wording or the parties’ intentions. The CRA, too, will consider the worker an employee. Returning to our hypothetical scenario, then, it would be incumbent on your client to obtain more information from the web designer. For example:
If your client is the web designer’s only client, she may be considered a dependent contractor if she is:
However, if the web designer can do all the work needed from home; can hire people as she sees fit (as her retainer with your client allows her to incur subcontractor expenses); and will be working with your client’s business for only a short period of time, she may be considered a true independent contractor. It is important to remember that every situation is determined according to its facts, and each situation is unique. When analyzing specific circumstances, it’s always beneficial to speak with an employment lawyer.
Once you determine that a worker is not an employee under the law, your next step is to figure out if the CRA would agree with your categorization. The CRA considers seven key factors1 when determining the relationship between the worker and the payer (i.e., the person/ entity who retains the worker’s services):
When reviewing a worker’s situation, the CRA first looks for any common intent between the parties. If none is found, the CRA then reviews any contract that’s in place, examines the parties’ testimony and actions, and looks at their respective intentions. It’s important to remember that the CRA has a review bias, in that it usually looks to see if someone falls under the “employee” category and is employed under a contract of service. It doesn’t necessarily consider if someone falls under another worker category. Be mindful of this perspective if you’re thinking about seeking the CRA’s ruling on a worker’s status.
Ultimately, a reclassification by the CRA can have significant consequences for a business. If a contractor is reclassified as an employee, the employer will have to pay the CRA unpaid taxes, make past CPP and EI remittances, and pay any applicable penalties. There can also be surprising monetary consequences for a payer, including the obligation to pay the newly classified employee vacation pay and other benefits owed for past services.
Whether you’re an employer yourself or an advisor to business owners, what this risk emphasizes is the importance of having a contract in place with workers of all types. From both a business management perspective and a financial management perspective, any payer should have these agreements in place. At the same time, business owners must exercise caution with regard to employment legislation. This legislation varies from province to province, and payers are responsible for knowing what their specific obligations are as employers. Ultimately, the best way for payers to protect themselves as employers is by reflecting these provincial obligations in their employment agreements. Payers must also be cautious when using independent contractor agreements that contain employment language. Referring to the CRA process described earlier in this article, if a contract reads like an employment agreement, it will not matter that the parties have called it a contractor position.
Finally, it’s not enough to put contracts in place. Payers also need to review these contracts on a regular basis. Positions and roles can evolve over time, and someone who legitimately starts as a contractor may become a dependent contractor or an employee over time. Failure to navigate and properly document these changes can lead to a reclassification by the CRA, with the consequences discussed above.
Retaining the services of workers can be a complex area for any business owner. The risk of reclassification keenly emphasizes the importance of knowing provincial legal requirements and federal tax obligations, and—fundamentally—the importance of having solid relationships with key professional advisors who can provide the right guidance.
We advise on, and are skilled in, all aspects of employment and labour law, including a wide range of issues which impact the workplace from both the employer and employee perspectives.
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