With few exceptions, Ontario's Employment Standards Act mandates pay for work for trainees. The government said the rules are aimed at ensuring young people are fairly treated.
Compliance inspections will continue beyond magazines, the ministry said.
"The Ministry of Labour will be launching an enforcement blitz this spring focused specifically on internships across a variety of sectors," the statement said.
The Ontario government has shown a lot of interest in FTU's
for example, which are famous for not paying flight instructors
for non-flight time.
I thought so to, but that's not the case in Ontario.
See the "Ontario Career College Act". They have
their own police and badges - I am not making this
up - and they swoop down on FTU's and seize PTR's
and levy $10,000 fines on flight schools. Not that
COPA could give a sh1t.
Oh, Canada.
Meanwhile, the cops are laying criminal charges against
Dalton McGunty's chief of staff. What took them so
f__king long?
I thought so to, but that's not the case in Ontario.
See the "Ontario Career College Act". They have
their own police and badges - I am not making this
up - and they swoop down on FTU's and seize PTR's
and levy $10,000 fines on flight schools. Not that
COPA could give a sh1t.
Oh, Canada.
Meanwhile, the cops are laying criminal charges against
Dalton McGunty's chief of staff. What took them so
f__king long?
I know a guy who paid 50 hours of navajo 2-3 y. ago at dorval aviation to have the privilege to work for free on the right side of a navajo night shifts for mails so that he couild build experience.
Yes it is. However the law is considerably more complex than simple federal/provincial silos. Over the last 25 years or so, federalist jurisprudence (the law about the relationship between the federal government and provincial government) has evolved to that of a "cooperative federalism". Courts recognize now that either government can enact laws that may affect a different aspect of aviation. For example, airlines (federal jurisdiction) still need to follow provincial liquor control regulations (Air Canada v. LCBO).
If a law aims to regulate aviation, it is deemed ultra vires (beyond the powers of) the province. For example, if a municipal government passes a by-law stating that airports are not allowed in a certain area, and the purpose of the bylaw was to restrict aviation, than that law would be ultra vires and struck down as invalid. This was the case in Lacombe v. Sacre Coure. There are some exceptions, ie double aspect doctrine, ancillary powers doctrine, etc. but I won't get into those.
If a provincial law impairs the "core of the federal competency" or impairs an "integral part" of the federal power, the legislation would be inapplicable to aviation. This is called the doctrine of interjurisdictional immunity. For example, if an airport violated a provincial agricultural land use statute, the statute would be inapplicable to the airport. This was the case in COPA v. Quebec. As an interesting note, no federal law has ever been held inapplicable to a provincial undertaking using the doctrine of interjurisdictional immunity. (The BC Court of Appeal in the Insight decision (supervised injection sites- PHS v. AG) used this doctrine to strike down the federal ban, but the SCC used different reasoning.)
Lastly, if a provincial law "frustrated" a federal law or caused an operation conflict with a federal statute, the federal statute would take precedence. This is called the doctrine of paramountcy and is equivalent to the American doctrine of federal preemption. I cannot think of a aviation related paramountcy case off the top of my head. The leading decision on this doctrine is the Mangat decision, where Mr. Mangat was charged by a provincial bar for providing legal services to federally regulated refugee claimants, something he was permitted to do under the federal statute. He was acquitted by the SCC.
In the case of employment standards, the provincial government could enforce it's provincial laws because the Employment Standards Acts does not seek to regulate aviation, does not impair the "core" of aviation. Unless there was an operation conflict with a federal statute, the provincial act would apply. In a similar case, Leaven's Aviation was ordered to comply with provincial health and safety regulations, and Ellis Don had to comply with provincial legislation for it's airport construction workers.
It would be interesting if a flight instructor stepped up to the plate and demanded a minimum wage, not being paid as a contractor, being forced to hang around the school for free. I'm pretty sure a lot of this stuff would end if that were the case. All it takes is one brave soul...
It would be interesting if a flight instructor stepped up to the plate and demanded a minimum wage, not being paid as a contractor, being forced to hang around the school for free. I'm pretty sure a lot of this stuff would end if that were the case. All it takes is one brave soul...
Technicaly you cannot be a contractor for a single client or you have to be employed.
And most school want the exclusivity for your starvation.
Some do pretend the client pays into an instructor "account" directly
Some do pay salaries for working hours only, if you stick around you may get some more work and some keep you contractor and take the chance.
Anyways schools dont do money, so please don't ask any. Everybody does business and everyone is about to loose money ... Anyways you'll be that guy doing the big buck in a 777, so suck it.
I know a company who got a 5000$ fine for doing that + employee fees
If your client is the flight school, the only one you are billing, no you can't, you have to be employed.
timel wrote:I know a company who got a 5000$ fine for doing that + employee fees
If your client is the flight school, the only one you are billing, no you can't, you have to be employed.
That is probably true, but that doesn't mean that in general you can't be a contractor for a single client. It depends on the situation (which is probably what photofly meant as well).
It only means that in that particular flight school something was fishy and the instructor was considered to be an employee for other reasons beside only the "one client thing".
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As an AvCanada discussion grows longer:
-the probability of 'entitlement' being mentioned, approaches 1
-one will be accused of using bad airmanship
I'm curious to have a link about that. Maybe provinces have different legislations about it.
I did researches about beeing independant contractor never heard of that.
Determining a worker's employment status in a province or territory other than Quebec
When we examine whether a person is an employee or a self-employed individual, the key question we ask is whether the person is engaged to perform services as a person in business on his or her own account, or as an employee. To do this, we examine the total relationship between the worker and the payer, using a two-step approach.
Step 1
We ask the worker and the payer what their intent was when they entered into the working arrangement. Did the two parties intend to enter into a contract of service (employer-employee relationship) or did they intend to enter into a contract for services (business relationship)?
We need to know how they defined their working relationship and why they defined it as such.
Sometimes the intention is clear, and both parties are in agreement (common intent). Sometimes the intent can be found in a written agreement. Sometimes the two parties have a different understanding as to the status of their working relationship, in which case there is no common intent.
Workers and payers can set up their affairs as they see fit; however, they have to ensure that the status they have chosen is reflected in the actual terms and conditions of the working relationship.
Step 2
We ask the worker and the payer questions that will help us understand the working relationship and allow us to verify whether the intent of the parties is reflected in the facts.
These questions relate to the following elements:
the level of control the payer has over the worker's activities;
whether the worker provides the tools and equipment;
whether the worker can subcontract the work or hire assistants;
the degree of financial risk the worker takes;
the degree of responsibility for investment and management the worker holds;
the worker's opportunity for profit; and
any other relevant factors, such as written contracts.
We look at the answers separately for each element and then together.
We consider whether they reflect the stated intention. When there is no common intent, we decide if the actual working conditions are more consistent with a contract of service or with a contract for services.
Factors you should consider
To help you understand the process, we explain each factor and show some indicators that the worker may be an employee or a self-employed individual.
Control
Control is the ability, authority, or right of a payer to exercise control over a worker concerning the manner in which the work is done and what work will be done.
Degree of control or autonomy
Consider the degree of control held by the payer or the degree of autonomy held by the worker.
The actual degree of control will vary with the type of work and the skills of the worker.
Determination of the degree of control can be difficult when examining the employment of professionals such as engineers, doctors, and IT consultants. Because of their expertise and specialized training, they may need little or no specific direction in their daily activities. When examining the factor of control, it is necessary to focus on both the payer's control over the worker's daily activities, and the payer's influence over the worker.
Payer's right to exercise control
It is the right of the payer to exercise control that is relevant, not whether the payer actually exercises this right.
It is the control of a payer over a worker that is relevant, and not the control of a payer over the end result of a product or service purchased.
Indicators that the worker is an employee
The relationship is one of subordination. The payer will often direct, scrutinize, and effectively control many elements of how and when the work is performed.
The payer controls the worker with respect to both the results of the work and the method used to do the work.
The payer determines and controls the method and amount of pay. Salary negotiations may still take place in an employer-employee relationship.
The worker requires permission to work for other payers while working for this payer.
Where the schedule is irregular, priority on the worker's time is an indication of control over the worker.
The payer determines what jobs the worker will do.
The worker receives training or direction from the payer on how to do the work. The overall work environment between the worker and the payer is one of subordination.
The payer chooses to listen to the worker's suggestions but has the final word.
Indicators that the worker is a self-employed individual
A self-employed individual usually works independently within a defined framework.
The worker does not have anyone overseeing his or her activities.
The worker is usually free to work when and for whom he or she chooses and may provide his or her services to different payers at the same time.
The worker can accept or refuse work from the payer.
The working relationship between the payer and the worker does not present a degree of continuity, loyalty, security, subordination, or integration, all of which are generally associated with an employer-employee relationship.
Tools and equipment
Consider if the worker owns and provides tools and equipment to accomplish the work. Contractual control of, and responsibility for, an asset in a rental or lease situation is also considered under this factor.
What is relevant is the significant investment in the tools and equipment along with the cost of replacement, repair, and insurance. A worker who has made a significant investment is likely to retain a right over the use of these assets, diminishing the payer's control over how the work is performed. In addition, a significant investment in tools and equipment and the maintenance and replacement costs associated with these assets may place the worker at the risk of a loss.
Note
Tools and equipment can vary widely in terms of value and can include everything from wrenches and hammers, to specialized clothing, appliances, stethoscopes, musical instruments, computers, and vehicles such as trucks and tractors.
Self-employed individuals often supply the tools and equipment required for a contract. As a result, the ownership of tools and equipment by a worker is more commonly associated with a business relationship.
However, employees sometimes also have to provide their own tools. The courts have acknowledged that because a worker is required to provide tools of the trade, this does not in itself mean that the worker is a self-employed individual. For example, many skilled tradespeople such as auto mechanics have to supply their own tools, even if they are full-time employees.
Indicators that the worker is an employee
The payer supplies most of the tools and equipment the worker needs. In addition, the payer is responsible for repair, maintenance, and insurance costs.
The worker supplies the tools and equipment and the payer reimburses the worker for their use.
The payer retains the right of use over the tools and equipment provided to the worker.
Indicators that the worker is a self-employed individual
The worker provides the tools and equipment needed for the work. In addition, the worker is responsible for the costs of repairs, insurance, and maintenance to the tools and equipment.
The worker has made a significant investment in the tools and equipment and the worker retains the right over the use of these assets.
The worker supplies his or her own workspace, is responsible for the costs to maintain it, and performs substantial work from that site.
Subcontracting work or hiring assistants
Consider if the worker can subcontract work or hire assistants. This factor can help determine a worker's business presence because subcontracting work or hiring assistants can affect their chance of profit and risk of loss.
Indicators that the worker is an employee
The worker cannot hire helpers or assistants.
The worker does not have the ability to hire and send replacements. The worker has to perform the services personally.
Indicators that the worker is a self-employed individual
The worker does not have to perform the services personally. He or she can hire another party to either complete the work or help complete the work, and pays the costs for doing so.
The payer has no say in whom the worker hires.
Financial risk
Consider the degree of financial risk taken by the worker. Determine if there are any fixed ongoing costs incurred by the worker or any expenses that are not reimbursed.
Usually, employees will not have any financial risk as their expenses will be reimbursed, and they will not have fixed ongoing costs.
Self-employed individuals, on the other hand, can have financial risk and incur losses because they usually pay fixed monthly costs even if work is not currently being performed.
Employees and self-employed individuals may be reimbursed for business or travel expenses. Consider only the expenses that are not reimbursed by the payer.
Indicators that the worker is an employee
The worker is not usually responsible for any operating expenses.
Generally, the working relationship between the worker and the payer is continuous.
The worker is not financially liable if he or she does not fulfil the obligations of the contract.
The payer determines and controls the method and amount of pay.
Indicators that the worker is a self-employed individual
The worker hires helpers to assist in the work. The worker pays the hired helpers.
The worker performs a substantial amount of work from his or her own workspace and incurs expenses relating to the operation of that workspace.
The worker is hired for a specific job rather than an ongoing relationship.
The worker is financially liable if he or she does not fulfil the obligations of the contract.
The worker does not receive any protection or benefits from the payer.
The worker advertises and actively markets his or her services.
Responsibility for investment and management
Consider the degree of responsibility for investment and management held by the worker.
Is the worker required to make any investment in order to provide the services?
A significant investment is evidence that a business relationship may exist. You should also consider if the worker is free to make business decisions that affect his or her profit or loss.
Indicators that the worker is an employee
The worker has no capital investment in the business.
The worker does not have a business presence.
Indicators that the worker is a self-employed individual
The worker has capital investment.
The worker manages his or her staff.
The worker hires and pays individuals to help perform the work.
The worker has established a business presence.
Opportunity for profit
Consider whether the worker can realize a profit or incur a loss, as this indicates that a worker controls the business aspects of services rendered and that a business relationship likely exists. To have a chance of a profit and a risk of a loss, a worker has to have potential proceeds and expenses, and one could exceed the other.
Employees normally do not have the chance of a profit and risk of a loss even though their remuneration can vary depending on the terms of their employment contracts. For example, employees working on a commission or piece rate basis, or employees with a productivity bonus clause in their contract can increase their earnings based on their productivity. This increase in income is not normally viewed as a profit, as it is not the excess of proceeds over expenses.
Employees may have expenses directly related to their employment, such as automobile expenses, board and lodging costs. Normally, expenses would not place employees at risk of incurring a loss because it is unlikely that the expenses would be greater than their remuneration.
Self-employed individuals normally have the chance of profit or risk of loss, because they have the ability to pursue and accept contracts as they see fit. They can negotiate the price (or unilaterally set their prices) for their services and have the right to offer those services to more than one payer. Self-employed individuals will normally incur expenses to carry out the terms and conditions of their contracts, and to manage those expenses to maximize net earnings. Self-employed individuals can increase their proceeds and/or decrease their expenses in an effort to increase profit.
This factor has to be considered from the worker's perspective, not the payer's. It is for the most part an assessment of the degree to which the worker can control his or her proceeds and expenses.
Employees generally do not share in profits or suffer losses incurred by the business.
The method of payment may help to determine if the worker has the opportunity to make a profit or incur a loss. In an employer-employee relationship, the worker is normally guaranteed a return for the work done and is usually paid on an hourly, daily, weekly, or similar basis.
Similarly, some self-employed individuals may be paid on an hourly basis. However, when a worker is paid a flat rate for the work performed, it generally indicates a business relationship, especially if the worker incurs expenses in performing the services.
Indicators that the worker is an employee
The worker is not normally in a position to realize a business profit or loss.
The worker is entitled to benefit plans that are normally offered only to employees. These include registered pension plans, and group accident, health, and dental insurance plans.
Indicators that the worker is a self-employed individual
The worker can hire a substitute and the worker pays the substitute.
The worker is compensated by a flat fee and incurs expenses in performing the services.
Determining a worker's employment status in the province of Quebec
When we examine whether a person is an employee or self-employed individual in the province of Quebec, we examine the relationship between the worker and the payer, using a three step approach.
Step 1
We ask the worker and the payer what their intent was when they entered into the working arrangement. We need to know how they defined their working relationship and why they defined it as such.
Sometimes the intention is clear, and both parties are in agreement (common intent). Sometimes the intent can be found in a written agreement. Sometimes the two parties have a different understanding of the status of their employment relationship, in which case there is no common intent.
Workers and payers can set up their affairs as they see fit; however, they have to ensure that the status they have chosen is reflected in the actual terms and conditions of the working relationship.
To determine the parties' intentions, we get a copy of the contract, or testimony by the parties and examine the parties' actions. Both parties' intentions form part of the context that we analyse.
Step 2
We look to see if the employment meets the definition of a contract of employment, or of a business contract (contract for services) defined in the Civil Code of Québec by considering the following factors:
performance of work;
remuneration; and
relationship of subordination.
It is important to gather the facts and analyze them in light of the specific context of the employment and the intent of the parties.
Step 3
We compare each party's intentions with their actual working relationship. We determine whether the conditions of the working relationship represent the status that the parties have chosen and that they are consistent with the definitions of the Civil Code of Québec.
Factors you should consider
Examine the relationship between the worker and the payer by considering the factors outlined in Step 2.
To help you understand the process, we explain each factor and provide some indicators to show whether a relationship of subordination exists.
Performance of work
Whether there is an employer-employee relationship or a business relationship, the worker has to perform the work. It can be part-time or full-time for a specified or indeterminate period.
Remuneration
Remuneration means how a worker is paid. It includes all consideration and benefits that have a monetary value. Whether there is an employer-employee relationship or a business relationship, the worker will receive remuneration in exchange for work. The remuneration can be calculated by time, by the piece, or in another manner.
Relationship of subordination
This factor helps distinguish the employer-employee relationship from a business relationship.
The relationship of subordination is the capacity, the authority, or the right of a payer to exercise a control over the worker's activities and the manner in which the work is done.
Degree of control or autonomy
Consider the degree of control held by the payer or the degree of autonomy held by the worker.
The actual degree of control will vary with the type of work and the skills of the worker.
Determining the degree of control can be difficult when examining the employment of professionals such as engineers, doctors, and IT consultants. Because of their expertise and specialized training, they may require little or no specific direction in their daily activities. When examining the factor of control, it is necessary to focus on both the payer's control over the worker's daily activities, and the payer's influence over the worker.
Payer's right to exercise control
It is the right of the payer to exercise control that is relevant, not whether the payer actually exercises this right.
It is the control of a payer over a worker that is relevant, and not the control of a payer over the end result of a product or service that he or she has purchased.
Indicators that the worker is an employee
The payer directs and controls many elements of how the work is performed (such as what, who, where, when, and how).
The payer controls the worker's absences, such as sick leave or vacation leave.
The payer controls the worker with respect to the results of the work and the method used to do the work.
The payer creates the work schedule and establishes the worker's rules of conduct.
The worker has to perform the work personally.
The worker has to remit activity reports to the payer.
The worker's activities are reserved to a single payer (exclusivity of services).
The payer can impose disciplinary actions on a worker.
The worker receives training or direction from the payer on how to perform the work.
The worker accepts integration in the payer's business to have the latter benefit from his work.
The parties have inserted a non-competition clause in their written contract.
Indicators that the worker is a self-employed individual
The worker is usually free to work when and for whom he or she chooses and may provide his or her services to different payers at the same time.
The worker does not have to perform the services personally. He or she can hire another party to either complete the work or help complete the work.
The worker can generally choose the time and the manner the work will be performed.
The worker does not need to be at the payer's premises.
The worker can accept or refuse work from the payer.
The working relationship between the payer and the worker does not present a degree of continuity, loyalty, security, subordination, or integration, all of which are generally associated with an employer-employee relationship.
Note
Since in certain working relationships it can be difficult to determine whether there is a relationship of subordination, we can also take into consideration indicators used in common law, referred to above in Step 2 of the section titled Determining a worker's employment status in a province or territory other than Quebec.
You are most correct my friend the Canadian Revenue Agency says that as a contractor you MUST show income from multiple sources to qualify, otherwise you are considered an employee and the company must make all the appropriate deductions and payments to the CRA. If not they will be fined and so will you, and made to pay up any shortcomings to CRA. I have heard some real horror stories from my accountant of this happening (ie having to pay 2000-6000 dollars back to CRA)
So if you are an instructor and employed as a contractor make sure you have other sources of income to show to CRA if not you are an employee of the FTU. The schools use the word contractor so that they don't have to pay you when your not flying (ie legally required minimum wage for your time not flying but required to be at the FTU )
I'm happy with their opinion on the matter, for the present.
Actually, if you read the link you provided, the Court of Appeals does in fact agree with Timel, stopbar and Bede (emphasis mine):
"The Court of Appeal stated that the category of dependant contractor was a "carve out" from the category of independent contractor. In other words, the first task of a court is to apply the normal test for determining whether a person is an employee or a contractor. Only if the result of that test is that the person is a contractor should a court then consider whether they are an independent or dependant contractor."
"The Court of Appeal stated that the hallmark of a dependent contractor was (as you might expect) dependency or "exclusivity of the work." That is also a factor weighing in favour of the employee category. Despite the fact that exclusivity is the"hallmark" of the dependent contractor category, it continues to be a factor in determining whether the worker is not a contractor at all, but rather an employee, in the first-step analysis....This case clarifies that dependent contractors exist as a category of law; however, it also makes it clear that dependent contractors are a subset of the contractor category, and that most people are (and will remain) employees rather than contractors."
I am quite astonished I need to spell this out in such excruciating detail. Let's go back to the wrong point that Timei claimed:
Technicaly you cannot be a contractor for a single client or you have to be employed.
The Court of Appeal disagrees with that. It accepts that there exists a class of contractor who works for a single client, and who is not employed.
The court's creation of the class of dependent contractor - someone who is a contractor but who works for a single client - contradicts Timei's point entirely.
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DId you hear the one about the jurisprudence fetishist? He got off on a technicality.
I am quite astonished I need to spell this out in such excruciating detail. Let's go back to the wrong point that Timei claimed:
Citation:
Technicaly you cannot be a contractor for a single client or you have to be employed.
The Court of Appeal disagrees with that. It accepts that there exists a class of contractor who works for a single client, and who is not employed.
The court's creation of the class of dependent contractor - someone who is a contractor but who works for a single client - contradicts Timei's point entirely.
Ok photofly, why don't you ask CRA directly. I worked 3 y. as a flight instructor (contractor erfff employed) and two years working as an independant flight instructor for private pilots. So I know what I'm talking about. If you know better let us know!
