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What do AMEs, pilots and ballerinas have in common?

Nov. 13, 2007 - The Royal Winnipeg Ballet employs full time dancers and uses independent contractor dancers, on a part time basis. Asked to confirm the “independent contractor” status of the part time dancers, the Minister of Revenue concluded there is no such thing as an “independent contractor dancer”, because, among other things: no dancer is free to dance their assigned roles in a manner that departs from the choreography or the artistic vision of the director; and “independent contractor dancers” do not have an opportunity for profit or loss.


November 13, 2007
By Brian Jenner president & CEO HAC

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Nov. 13, 2007 – The Royal Winnipeg Ballet employs full time dancers and uses independent contractor dancers, on a part time basis. Asked to confirm the “independent contractor” status of the part time dancers, the Minister of Revenue concluded there is no such thing as an “independent contractor dancer”, because, among other things: no dancer is free to dance their assigned roles in a manner that departs from the choreography or the artistic vision of the director; and “independent contractor dancers” do not have an opportunity for profit or loss.
 
But low and behold on March 2, 2006 the Federal Court of Appeal declared that there is nothing that compels a dancer to be an “employee” or an “independent contractor”, it’s a matter of choice. Furthermore the Court held that evidence of the parties' understanding of their contractual relationship must always be examined and given appropriate weight; and that the elements of employer control in the case of ballerinas could not be considered to be inconsistent with the parties' understanding that the part time dancers were “independent contractors”.
 
The Court noted that, in the case before it, there was no suggestion of a sham or window dressing of any sort; the Royal Winnipeg Ballet and the dancers all believed that the part time dancers were self-employed, and they acted accordingly. With respect to financial risk, the Court noted that for a higher pay “independent contractor dancers” gave up many of the benefits which usually accrue to “employee dancers”, including job security.
 
The facts of the “ballerina case” and the reasons for the decision are much more complex than the above résumé; they may or may not transpose to contract AMEs and pilots; they may or may not apply to all government agencies (an HAC member, with the help of the Association, will soon test these principles with the Ontario Workers’ Compensation Board); and even if the case of the ballerinas does support the right of AMEs and pilots to contract their services, individual decisions will depend on the facts of the case.
 
But there can be no doubt that, on the face of it, it looks like “contract” AMEs and pilots are in the same boat as “independent contract dancers”. So it would seem that what ballerinas, AMEs and pilots have in common, is the right to be “independent contractors”.

 
  
Brian Jenner
President & CEO

www.h-a-c.ca


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