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Rear End Collision Resolves for $150,000.00 plus…

Personal Injury, Decisions and Settlements

Michael Yawney QC was retained by a woman from Salmon Arm BC who was hit hard from behind on Highway 97 while stopped due to a left turning vehicle infront of her. She suffered soft tissue injuries that required extensive physiotherapy and rehabilitation. Michael was able to resolve her claim prior to trial for $150,000.00 plus costs and disbursements.

March 31, 2017
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Employers Beware: Is it an Employee or a Contractor?

Employment Law, Blog

Written by Andrew Powell, Partner

In many businesses, the owners attempt to avoid employee issues altogether by just not using them.  They say, “I don’t have any employees.  I use contractors.”   To which, as lawyers, we generally say “are you sure”?  because quite often, perhaps even usually, they are wrong.  Hence, one major area of surprise liability for an employer is when they wrongly identify an employee as an independent contractor.
There are many reasons that an employer might want to use independent contractors instead of employees.  For one thing, the Employment Standards Act doesn’t apply to contractors, so you can be freer with work hours and overtime and holiday pay.  There are also tax reasons on both the part of the employer and the worker that make a contractor-type relationship more attractive: as an employer, you are responsible for withholding taxes and remitting them, and also for making payroll deductions – but if you use only independent contractors, you can pass that responsibility on to the worker by having them simply submit an invoice and pay them like they are an independent business.  The employer doesn’t have the administration headache, and the worker can get all sorts of benefits too, such as the ability to write expenses off against their “business” income.
But beware!  There are enormous issues with this structure, and you have to be extremely careful.
First: the Canada Revenue Agency is very skeptical by nature.  Your business will likely be subject to audit from time to time, and contractor status is an issue where the CRA likes to shine a very bright light.  You can insist up and down that your worker is a contractor, but it won’t matter.  If it is determined that the worker is an employee and not a contractor, then all the remittances that were not made will suddenly need to be made, and not by the employee, but by the company.  The liability for this is very real, and can be quite significant.

Next: provincially, the Employment Standards Branch is also very skeptical.  A contractor may well change his mind about his status, especially if his contract ends.  If for some reason, whatever reason, the worker decides that they want to take advantage of some provision of the Employment Standards Act, then that worker can file a complaint with the ESB.  If the ESB determines that the contractor is in fact an employee, then the Act and all its regulations will apply, and you can be subject to penalties and orders for violating hours of work or overtime or any other of a number of things, all in one sudden retroactive flash.   You may also be responsible for providing back pay – to someone you thought was an independent contractor.

Third: Courts are very skeptical. If the relationship ends (and eventually, for some reason, it will) the Courts will look at a contractor status and see right through it like it was a piece of stretched plastic wrap .  It is such a standard question that the Courts may not even bother going through a detailed analysis: they can just say, “dependent contractor”, and your company can be liable for employee rights, including severance or notice periods at common law.

So, at the end of the day, if you are going to have “contractors”, make sure they are actually independent contractors.  There are well established indicators for spotting true independent contractors:

              – Do they own their own tools?
              – Do they control their own schedule?
              – Can they hire or fire someone to help them do their work?
              – Do they have a chance of profit or a risk of loss?
              – Can they, and do they, work for other businesses?
             – And, basically, if you sniff this relationship, does the worker smell like an employee or a contractor?

Look at it like an outsider and decide.  If you are using a contractor status as a favour to an employee, then on behalf of your Company, think again.  The administrative savings to your business are likely not worth the risk.  If someone works for you, and only you, then you are better off to just call the relationship what it is: employment. 

March 31, 2017
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Nearly $350,000 Awarded, Far in Excess of ICBC Offer

Personal Injury, Decisions and Settlements


LAFOND vs. MANDAIR
Larry Lafond retained James Cotter after he was injured in a motor vehicle accident which left him with chronic neck pain and low back pain.  Despite these injuries he did not miss a lot of his work, due to the fact that he had a very accommodating employer.  His employer allowed him to do tasks which were much easier on his body, and to use his sick bank to make up lost wages.  These injuries, however, greatly impacted Mr. Lafond’s life such that his recreational activities were greatly limited, and his ability to enjoy life outside of work was greatly diminished.  Mr. Lafond was in his early 50’s, and was very worried as to how these injuries would impact him in the future.  He was concerned that he was not going to be able to continue with his job either because he could not continue due to his chronic pain, or his employer would sell the business and he would have to deal with a less accommodating new employer.

Unfortunately, ICBC did not believe that his injuries were as significant as both Mr. Lafond and his doctors said.  ICBC retained a specialist doctor whom they use quite often, who gave an opinion that Mr. Lafond had pre-existing back pain even though there was no evidence of any back complaints in the 5 years prior to the accident.  Unfortunately, ICBC would not offer enough money to reasonably settle this matter, as in our assessment the offers from ICBC were far below what Mr. Lafond would get at Trial. 

James Cotter and Leah Volkers took this claim to Trial, it lasted 6 days.  The Trial Judge fully believed Mr. Lafond and the impact of the injuries on his life.  The Trial Judge completely dismissed the ICBC specialist’s opinion.  The Judge awarded Mr. Lafond nearly $350,000 plus reimbursement of his litigation expenses.  This amount was far in excess of what ICBC was offering to try and resolve the matter.  At the end of the day, the Trial Judge made an award which was fair and reasonable in the circumstances, and it fulfilled the purpose of our legal system, which is to put the accident victim back in a position he would have been, had the accident not occurred.

Click here to read the full Court Decision.

March 30, 2017
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Claim Settled Prior to Trial

Personal Injury, Decisions and Settlements

Senior Litigation Partner Michael Yawney QC was retained by a young woman in her early twenties who was struck as a pedestrian while walking home from work in Vancouver. She was also involved in a rear end collision accident subsequent to that. She suffered physical and psychological injuries as a result of the accidents, including the loss of her spleen, chronic headaches and pervasive anxiety.  Her claims were settled a few weeks before the scheduled trial date for over $750,000.00. The accidents and injuries impacted her ability to work and her future prospects.

March 20, 2017
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