The statute allows a "person" to bring the complaint. The issue will be whether there is an employment relationship and secondly, whether the complainant is denied the right to bring the complaint due to their status as a "manager".

There is also a category recognized as a "dependent contractor" which has been given the right to bring this complaint.

The analysis will then be:

1. Apply the common law test to determine if the complainant is an employee;
2. If not an employee, the consider the factual context to determine if the person is an independent or dependent contractor.

In the operative section of the Code, the term “person” is not defined. The interpretation given to this question has been that the complainant must have the status of an employee at common law. ¹

The Federal Court of Appeal considered this issue in its 2021 decision. ² The adjudicator had determined that the complaint was barred as the complainant was not an employee. The first review set aside this decision, which was then restored by the Federal Court of Appeal.

The adjudicator had applied the five components of the test as set out in the 2001 Supreme Court Decision of Sagaz. ³ The factors as set out in this decision, while noting that there is no one conclusive test, were repeated by the adjudicator in this instance:

1. Level of control;
2. Ownership of tools and equipment;
3. The right to hire others to do the work;
4. The extent of investment in the business of the applicant.
5. The chance of profit or the risk of loss.

In addition to these factors, the adjudicator also noted that in the transportation industry, arrangements were often structured in a manner to avoid the obligations which may flow from an employment relationship. She added that it is the “responsibility of the adjudicator to ensure that the legislative policy goals [of the Code] are adhered to and that ‘those persons in a position of economic dependency are not exploited by those with economic power’”.  This review was referenced by the adjudicator as the “balancing of the parties”.

In this instance, she determined that this case was unlike many in this industry was not one in which “the alleged employer holds all the cards”. The adjudicator described this as a key consideration in her analysis and consideration of the evidence. To arrive at this conclusion, the adjudicator noted that Flick had declined a prior offer to be hired as an owner-operator and decided to act as an agent:

         I find that Mr. Fick was fully aware and made a conscious decision to act as an Agent based on the differences in the financial remuneration. This was a calculated decision and one that he acted on for approximately 10 years before the unfortunate set of circumstances that resulted in his not being able to work. At that time it became convenient for him to argue that he was an employee.

The Federal Court of Appeal agreed with the employer submission that the adjudicator decision was reasonable.