372 THE ADVOCATE
VOL. 79 PART 3 MAY 2021
employer based on a failure to plead the relevant
facts to support such a claim (see Basyal v Mac’s
Convenience Stores Inc, 2019 BCCA 276).
43. RSBC 1996, c 244 BC LRC.
44. See BC LRC, s 1(1) (“Dependent contractor” means
“a person, whether or not employed by a contract of
employment or furnishing his or her own tools, vehicles,
equipment, machinery, material or any other
thing, who performs work or services for another
person for compensation or reward on such terms
and conditions that he or she is in relation to that person
in a position of economic dependence on, and
under an obligation to perform duties for, that person
more closely resembling the relationship of an
employee than that of an independent contractor”).
45. See Lyft Terms of Service (24 October 2017), para
19, online: <www.lyft.com/terms/canada>. This
agreement also includes a mandatory arbitration
provision, albeit subject to an opt-out provision (para
46. Section 1(1) of the BC ESA defines an “employee” as
including “a person, including a deceased person,
receiving or entitled to wages for work performed for
another” and “a person an employer allows, directly
or indirectly, to perform work normally performed by
an employee”. An “employer” includes “a person
who has or had control or direction of an employee,
or who is or was responsible, directly or indirectly,
for the employment of an employee”. “Wages” are
defined to include “salaries, commissions or money,
paid or payable by an employer to an employee for
work”, and “work” “means the labour or services an
employee performs for an employer whether in the
employee’s residence or elsewhere”. The current BC
ESA was enacted following an extensive review and
ensuing report submitted by Commissioner Mark
Thompson in 1994 (Rights and Responsibilities in a
Changing Workplace: A Review of Employment
Standards in British Columbia, online: <www.bcest.
bc.ca/thompson.pdf>). Although Commissioner
Thompson recommended that a new employment
standards statute include a definition of “dependent
contractor” (see pp 3, 33), that recommendation has
never been implemented.
47. See e.g. Sunshine Cabs Limited, BC EST # D012/04;
C and C Taxi Inc., BC EST # D074/15; and Beach
Place Ventures Ltd and Black Top Cabs Ltd, 2019
48. Employment Standards Regulation, BC Reg 396/95,
49. Pink Dot Enterprises Inc, BC EST # D039/98; Flash
Courier Services Inc, BC EST # D094/00; M.S.I.
Delivery Services Ltd, BC EST # D051/06, reconsideration
refused BC EST # RD082/06; Big Daddy’s
Capital Inc, BC EST # D061/16; and Oliveira, 2019
50. I define “gig economy” work as predominantly service
sector jobs, with variable hours, that pay relatively
low wages with few or no benefits, or security
51. Terra Nova Transcription Inc, 2020 BCEST 89.
52. Web Reflex Internet Inc, BC EST # D026/05; see also
ALR Technologies Inc, BC EST # D070/06 and Genetrack
Biolabs Inc, BC EST # D080/13.
53. Urban Concierge Services Inc, 2020 BCEST 3; see
also Victoria’s Five Star Cleaning Ltd, BC EST #
54. Kingsman Security and Investigation Corporation,
2019 BCEST 134.
55. Multintel Education Ltd, 2019 BCEST 109.
56. Attitudestudios Art Ltd, BC EST # D092/16.
57. Commonwealth Physiotherapy Clinic Physical Therapist
Corp, 2019 BCEST 17.
58. IG Publications (Banff) Ltd, 2018 BCEST 104.
59. Quick Takes Photography Inc, BC EST # D142/96.
60. The Cambie Malone’s Corporation, BC EST # D139/
16; see also Kumar, BC EST # D008/00.
61. Earlybirds Awards Inc, BC EST # D068/00; see also
Aubrey Tennant Operating Anthony Robbins and
Associates, BC EST # D302/97.
62. An “employee” is defined in s 1(1) as meaning someone
employed by an employer; an “employer means
a person who employs one or more employees or uses
the services of one or more dependent contractors”.
63. See e.g. Carter v Bell & Sons (Canada) Ltd, 1936
CanLII 75 (Ont CA); Marbry v Avrecan International
Inc, 1999 BCCA 172; McKee v Reid’s Heritage
Homes Ltd, 2009 ONCA 916; Keenan v Canac
Kitchens Ltd, 2016 ONCA 7; and TCF Ventures Corp
v The Cambie Malone’s Corporation, 2017 BCCA
129. “Intermediate category” employees have frequently
been characterized as “dependent contractors”
(see e.g. Khan v All-Can Express Ltd, 2014
BCSC 1429; Pasche v MDE Enterprises Ltd, 2018
BCSC 701; and Liebreich v Farmers of North America
, 2019 BCSC 1074).
64. 2020 CanLII 16750 (Ont LRB).
65. The Board heard evidence that many Foodora drivers
also worked for Uber Eats (occasionally being
logged into more than one application service simultaneously)
and other app-based food delivery services
such as SkipTheDishes and DoorDash.
66. The definition of “dependent contractor” under
Ontario’s statute is almost identical to that found in
the BC LRC. The Foodora couriers voted ninety per
cent in favour of unionization and “Foodsters United,
CUPW Courier Local 104” was subsequently certified
to bargain collectively on their behalf (see Canadian
Union of Postal Workers v Foodora Inc dba
Foodora, 2020 CanLII 41787 (Ont LRB), and online:
<www.foodstersunited.ca>). Foodora subsequently
closed its Canadian operations, and now appears to
be insolvent (see “Canadian Ride-Hailing Service
Facedrive Eyes Foodora Restaurants and Customers”,
Bloomberg (14 May 2020), online:
1.1436537>). In addition to British Columbia and
Ontario, the Alberta and Newfoundland and
Labrador collective bargaining statutes, as well as