Disclaimer: This is not legal advice and you should consult an employment paralegal or lawyer. This is presented as legal education only. It is your responsibility what you do with this information.

Let’s say you’ve worked as an Independent Contractor. Many employers have an incentive to treat their employees as if they were not employees. They can save money on taxes, they don’t have to give you any rights and they can withhold vacations, breaks, T4s, etc.

Through research, you find out that the working relationship fit more with the definition of an employee. Perhaps you’ve looked at common law tests. Maybe you have evidence that the employer was advertising their business with you as part of the ’team.'

There are many reasons why an Independent Contractor relationship on paper isn’t anything close to the truth.

Step One - Try the Ministry of Labour

  • You file a complaint with the Ministry of Labour.
  • An Employment Standards Officer investigates and doesn’t issue a decision.

Does that Employment Standards Officer have the final word?

The short answer is ‘No.’

Under S.116 of the Employment Standards Act, 2000, S.O. 2000, c. 41, you have a statutory right to file an Application for Review with the Ontario Labour Relations Board (“OLRB.”)

What next?

You feel that they’re wrong in their decision. There could be a whole laundry list of reasoning. What matters is that you have a clean slate.

You file your Application for Review.

An Application for Review is a second opinion and you get a hearing in front of an impartial and unbiased decision maker unaffected by institutional biases.

They make decisions based on the law and arguments put before them. It is not inquisitorial, like the Ministry of Labour. They will not investigate the issue for you.

The hearing is an adversarial proceeding much like Small Claims Court or other types of Tribunals. You do not need a Paralegal or Lawyer, but it would certainly be in your favour to have one.

You also need to follow the OLRB Rules of Procedure (linked below). It can be devastating for your case if you don’t follow the rules.

You fill out an A-103 Form and include all of your supporting evidence and the ESO decision. The OLRB will provide you with a mediator so you can attempt to resolve the issue. Afterwards, if mediation fails or is refused, you can have a hearing in front of that impartial decision maker.

My plea to you

Get help filling out your forms, even if you need to get a limited scope retainer with a paralegal.

Even if you have the most legally solid case in the world, a legal matter can still get highly emotional because our jobs are our life.