CPP and EI Rulings Irrelevant to ESC Determinations of Whether Independent Contractor

In 1701104 Alberta Ltd. v Tucker, 2026 ABESAB 17 (Chair Schlesinger), the Alberta Employment Standards Appeal Body (“ABESAB”) found a worker was non-managerial employee, and not a contractor.  However, she was found to have worked less than the hours she claimed and was therefore not awarded the bulk of her claim on the appeal.

This case is important because it demonstrates employment standards’ reluctance to find someone is a contractor or manager.  It also affirms that the rulings from one statutory body will not necessarily affect the rulings of another statutory body.  Finally it serves as a rare example of an employer without proper records of hours effectively resisting a claim for unpaid wages.

Facts

The following were the pertinent facts summarized by the ABESAB:

• The employee Ms. Tucker worked for the Respondent employer at the Edson RV Park & Campground as a park manager
• The employee’s son, P, sometimes worked there too, and would generally be assigned tasks by Ms. Tucker
• Tucker and her son were given keys to the office equipment shed, laundry and utility box. They were advised of what needed to be done at the park and given training for operation of some park equipment.  The only tool Ms. Tucker supplied that was used in work was her cellphone
• The very short contract signed by Ms. Tucker had the heading “terms of employment” and internally referred to her as a contractor
• Tucker was paid a “management fee” of $3000 per month, minus an $800 deduction for rental of a spot and trailer in the park for Ms. Tucker. The invoices did not list hours of work except when her son did work at the rate of $15/hour, which was in addition to her fee.  The use of her son for work was generally at her discretion
• Tucker claimed she worked 12 hours per day/ 7 days per week. The evidence was that she was effectively on call for that period, but her actual duties took less time generally, and sometimes much less time
• She was not provided a work schedule, but the park hours were 12 hours daily. She was not told she could not leave the property during those 12 hour periods, and had done so for personal errands a number of times
• She was not provided direction from the owner regarding her tasks and when to do them. The owner lived elsewhere and visited the park once a month or less
• She would sometimes deal directly with contractors for maintenance and repair work, and she was permitted to work elsewhere
• Her actual working hours were not recorded by her or the owner, and she did not submit timesheets
• The owner changed her working hours to 4 hours per day 3 months before Ms. Tucker resigned her employment. The evidence was that Ms. Tucker was able to complete her job duties in a 4 hour daily schedule
• Tucker made an Employment Standards Code (“ESC”) complaint for unpaid wages, holiday pay, vacation pay and overtime as an “employee”, not a contractor
• A separate CPP / EI ruling by Canada Revenue Agency (the “CRA Ruling”) determined Ms. Tucker was a “contractor” and thus not required to pay employee CPP and EI premiums
• Tucker was largely successful on her initial employment standards complaint, where it was found she was an employee and owed the amounts claimed
• The employer appealed, arguing that she was a contractor, but even if she was found to be an employee she a manager (not entitlement to overtime) did not work nearly 12 hours per day and was not owed anything

Analysis / Conclusion

The ABESAB conducted lengthy analysis of whether Ms. Tucker was a contractor or employee, finding she was an employee under Section 2(1) of the ESC.  The summary findings were as follows:

[63] All in all, the preponderance of the evidence here leads the Appeal Body to conclude the Respondent was not an independent contractor. The significant control exerted by the Appellant over the terms of the Contract and the pay, the Respondent’s reliance on the Appellant for advice and direction in carrying out her tasks when difficulties arose, and the Appellant’s ownership of almost all the relevant tools for the work, tip the balance in favour of finding that the Respondent was an employee and not an independent contractor. […]

The employer asked the ABESAB to consider the CRA Ruling which found Ms. Tucker was a self-employed worker for the purposes of CPP and EI payments.  The ABESAB declined to do so, finding that only Alberta employment standards had jurisdiction to determine if she was an employee under the ESC, and the CRA Ruling was brief and did not explain what information it considered in making its decision.

The ABESAB also determined Ms. Tucker was not employed in a managerial or supervisory capacity under Section 2 of the ESC Regulations.  The ABESAB noted that the title of “manager” did not mean she was in fact employed in a managerial capacity.  The owner was the principal contact for the park and had overarching authority over park operations.  Ms. Tucker went to the owner for advice and direction when it came to things of real concern to park operations, and Ms. Tucker had no financial commitment to the park.  Although she directed her son in work periodically, the work involved tasks she was responsible for, most of which she also did herself.

As a result, Ms. Tucker was an employee entitled to overtime for hours exceeding 8 hours per day or 44 per week.  This point was somewhat of a hallow victory because the ABESAB also concluded that her actual working hours were far lower than that threshold.  She was therefore not awarded any overtime – the employer won on this point.

Ms. Tucker was still entitled to vacation pay and holiday pay as an employee, so that part of the employment standards award was not overturned.  It was modified downwards however, because these amounts are determined with reference to actual working hours and she was found to have worked significantly less than the 12 hours per day found by employment standards originally.

The ABESAB determined that, based on the actual hours Ms. Tucker likely worked, she was not owed any wages exceeding the $3,000 per month she had been receiving.

My Take

This case illustrates once again the importance of keeping records of working hours, for both employees and employers.  If there had been reasonably accurate records, this case could have turned out very differently.

This case also serves as somewhat of a rarity.  Here, although the employer was faulted for not keeping records, the evidence of actual working hours being far less than 12 per day was compelling enough to save the employer from significant additional liability.  Usually when records are not kept, the evidence is not compelling enough to accomplish this.

Finally, the findings that the CRA Ruling was irrelevant to contractor status determination in this case should serve as a precedent for lawyers representing workers who are seeking to exclude this sort of evidence.

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

This blog post is an original work of Bow River Law LLP.  The original publish of this article is on Bow River Law’s website blog.