Bernie began working at Active Life Sporting Goods (“Active”) at their regional distribution…

Bernie began working at Active Life
Sporting Goods (“Active”) at their regional distribution centre in
Kamloops in 2008 as a wholesale service manager. Bernie’s job
was to get “Active” products into various sporting goods stores in
British Columbia. In 2009 Active decided to make Bernie a
contractor and had him sign a series of one-year agreements that
stated Bernie’s contract could be terminated on 60 days’ notice. In
2010 Active required Bernie to incorporate, and from that point
forward, the agreements were between Active and Bernie’s
corporation.


The agreements defined Bernie, and later his corporation, as an
“independent marketing consultant” and expressly stated that the
relationship was not one of employment. Instead, it described
Bernie’s company as an independent contractor. Bernie paid for his
own office space and remitted his own income taxes and workers’
compensation premiums. He (and later his company) was paid a
percentage of monthly sales secured by Bernie. While, Active
set all prices, and coordinated promotional methods, Bernie was
free to provide marketing services to other clients and he did
advise some smaller sporting goods retailers from time to
time. Bernie was expected to produce a minimum sales volume
but was not told how many hours per week to work in the office he
rented. In March 2021, Active terminated the agreement with 60
days’ notice as provided for in the contract. Bernie sued for
wrongful dismissal damages, alleging that he was really an
employee.

a. What arguments
could he make to support his position that he was an
employee?

b.
What arguments could Active make to support its position
that he was an independent contractor?

c.
Which side do you think would be successful?
Explain why

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