[1] Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.

[2] Ms. Dana Gee (the complainant) filed a complaint of unjust dismissal against her former employer, Corus Entertainment Inc. (Corus or the employer), on May 28, 2021. In her complaint, she asserts that her employment was unjustly terminated on February 21, 2021.

[3] The complaint was subsequently referred to the Board for adjudication. The Board acknowledged receipt of the complaint on August 20, 2021, and invited the parties to provide written submissions by September 7 and 17, 2021, respectively. The Board received written submissions from both parties. In the employer’s submission, it raised a preliminary objection to the Board’s jurisdiction to hear the complaint on the basis that the complainant was not an employee within the meaning of the Code.

[4] Following receipt of the parties’ submissions, the complaint was submitted to the Board for consideration. A case management conference (CMC) was held with the parties on April 3, 2023, at which time they confirmed that the material facts surrounding the complainant’s employment status are not in dispute. Rather, the parties dispute the application of the law to the facts, as the complainant asserts that she was a dependent contractor. Following the CMC, the employer indicated to the Board that there was no potential for informal resolution of this complaint and that it wished to have its preliminary objection determined.

[5] As noted, the parties disagree on whether the complainant was an independent contractor, taking her outside the Code’s unjust dismissal protections, or a “dependent contractor,” entitling her to those protections. This decision deals only with this preliminary issue, which the Board is able to decide based on the undisputed facts in the parties’ fulsome written submissions.

[6] Since 2001, the complainant was a regular guest contributor who appeared on Corus’s Global News shows for brief segments one to three times a week, with an average of twice a week. During these segments, the complainant expressed her own opinion. Corus did not control her preparation or what she said during the segments, and she was not required to attend. Corus did have the final say over the topics she covered in the segments.

[7] The complainant’s segments were popular, and she amassed a large following on social media over her many years as a regular on-air contributor. The complainant also provided similar video commentary on entertainment news for the Vancouver Sun and the Province and was a features writer for Postmedia. She also hosts or hosted her own podcast.

[8] The complainant did not have a written employment contract, and the terms of her working arrangement with Corus were entirely oral. The complainant submitted invoices to Corus based on a fixed rate of $225.00 per appearance. No deductions were made from these payments.

[9] The complainant asserts that she made approximately 25 per cent of her income from Corus. The complainant was free to, and did, work for other media outlets during her time with Corus, including the Vancouver Sun and Postmedia.

[10] On February 21, 2021, the complainant received a phone call from Corus News Director Mr. Bhupinder S. Hundal, who advised her that her employment was ending effective immediately. The call was brief. Mr. Hundal did not provide many details, only that the station was electing to go in a different direction due to the COVID-19 pandemic. Mr. Hundal did not offer the complainant any notice or pay in lieu of notice. After being a constant presence on Global News for over 20 years, the complainant was not allowed to sign off or say goodbye to viewers.

[11] Corus argues that the complainant was an independent contractor and is not protected by the Code’s unjust dismissal provisions. Corus points to the following factors in support of its position: the complainant’s lack of dependency on Corus, as evidenced by the fact that she only earned 25 per cent of her income from it and worked for various other outlets; the lack of control Corus exercised over the complainant’s attendance and the content of her work; and the fact that the complainant was paid through invoices with no payroll deductions.

[12] In sum, Corus argues that the complainant was not a “dependent contractor” under the Code because she was not economically dependent on Corus and did not work exclusively or near‑exclusively for it.

[13] Corus relies on the following authorities: McKee v. Reid’s Heritage Homes Ltd., 2009 ONCA 916; and Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640.

[14] The complainant argues that she was a “dependent contractor” for Code purposes. She argues that her employment arrangement with Corus was similar to that of workers in recent cases where courts found the worker to fall somewhere between an employee and an independent contractor, as she was not on the payroll but was treated as an employee in most other ways.

[15] The complainant argues that there was sufficient control and supervision over her duties and the content she created for her to be considered a dependent contractor and to be entitled to reasonable notice or pay in lieu of notice. According to the complainant, the end of her working relationship with Corus and the manner by which Corus dismissed her caused her significant distress. She indicates that broadcasting is a precarious industry in which it is difficult to find regular, secure, paid work and that it will likely be challenging for her to find another arrangement similar to what she had with Corus.

[16] The complainant relies on the following authorities: Glimhagen v. GWR Resources Inc., 2017 BCSC 761; and Marbry et al. v. Avrecan International Inc., 1999 BCCA 172.

[17] As set out by the Board in Windsor, 2021 CIRB 996, the starting point in cases where a complainant’s employment status is disputed is to determine whether the complainant was an employee or a contractor. If the complainant worked as a contractor, the Board must then determine whether they were a dependent contractor or an independent contractor. If the Board determines that the complainant was an employee or a dependent contractor, it must then determine whether the complainant was unjustly dismissed and, if so, the appropriate remedy.

[18] The term “employee” is undefined in Part III (Standard Hours, Wages, Vacations and Holidays) of the Code but has been held to include individuals employed as dependent contractors (see, for example, C.P. Ships Trucking Ltd. v. Kuntze, 2007 FC 1225; and Peepeekisis Cree Nation No. 81 v. Dieter, 2018 FC 411. In determining who is or is not an employee, the Board has utilized common law tests.

[19] These common law principles were summarized by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59; [2001] 2 S.C.R. 983 (Sagaz), in which the Court held that the question of whether a person is an employee or an independent contractor is determined by examining the control over the work; the ownership of the tools and equipment; the chances of profit and risk of loss; and the integration of the worker into the business. This is otherwise referred to as the “element of control” test, the “entrepreneur test” and the “integration test.” As summarized by Major J. writing for the majority in Sagaz, supra:

[20] The Board has applied this multilayered analysis in the context of wage recovery appeals. For instance, in 7892985 Canada Corporation, 2020 CIRB 926, the Board set out the following factors to be considered in assessing the nature of the employment relationship:

[21] Neither party in this case has argued that the complainant was an employee, nor could such an argument be sustained given the level of control and autonomy she maintained in her work. The Board finds that the complainant was not an employee and that she was clearly in some sort of contractor arrangement with the employer.

[22] Turning to the question of whether the complainant meets the test for a dependent contractor, the Board finds that the undisputed facts establish that she was not economically dependent on Corus. Rather, the uncontested facts are that she worked for various other media outlets throughout her tenure with the employer and that only 25 per cent of her income was from Corus. This is well below the near-exclusivity threshold of at least 50 per cent as contemplated in the above-noted cases.

[23] In all of the circumstances, the Board finds that the complainant was not an employee or a dependent contractor under the Code. Given this finding, the Board lacks jurisdiction to determine her unjust dismissal complaint. The complaint is accordingly dismissed.