Apart from the new, fancy name, what the Ontario Court of Appeal did is what the Supreme Court suggested should be done when terminating any long-term relation. The principle that termination is only possible by giving notice is forcefully stated by Le Dain J. in Hillis Oil & Sales Ltd. v. Wynn’s Canada Ltd., [1986] 1 S.C.R. 57, at 67-68, 25 D.L.R. (4th) 649, at 665-66.

If a distributorship agreement does not contain a provision for termination without cause it is so terminable upon giving reasonable notice of termination ¼ A right to terminate a distributorship agreement without cause with immediate effect must be expressly provided for in the agreement. In the absence of [a] provision for [termination], the rule requiring reasonable notice of termination should be applied as an implied term of the contract.

While a “dependant contractor” may not be a distributor, it is well accepted that termination of any contract (that does not have a termination clause) requires notice.  What is surprising about the decision is that MacPherson J.A. does not mention Hillis Oil.

Angela Swan

From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Monday, January 18, 2010 6:33 PM
To: Jason Neyers; obligations@uwo.ca
Subject: Re: ODG: Dependent Contractors

Dear Jason;

Thanks for noting this. I had not been aware of the previous provincial case-law cited here establishing the "intermediate" category of "dependent contractor", though I notice that it is (1) mainly used in the case of determining a period of notice required for dismissing someone, and (2) not reflected yet at the Supreme Court level? I notice also that for Ontario the recognition of the category at common law does seem to be assisted by the specific legislative provision noted at para [29] defining the term for the purposes of collective bargaining under the Labour Relations Act.

In Australia, of course, there were a couple of attempts at the High Court level to recognise a third category of worker, the so-called "representative agent", as a non-employee for whose wrongs the principal would be vicariously liable. But in each of the cases where the concept was mooted, twice by McHugh J (in Scott v Davis (2000) 204 CLR 333, and Hollis v Vabu Pty Ltd (2001) 207 CLR 21) and once (to some extent on his behalf after he had left the court) by Kirby J (in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161), the notion was rejected by a clear majority of the Court. So it seems pretty clear that Australian law knows only the two traditional categories, at least for the purposes of vicarious liability.

Regards

Neil

 

Neil Foster

Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law

MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

>>> Jason Neyers <jneyers@uwo.ca> 19/01/10 7:02 >>>
Dear Colleagues:

Some of you might be interested in the Ontario Court of Appeal's
decision in McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916
(http://www.ontariocourts.on.ca/decisions/2009/december/2009ONCA0916.htm)
where in the court recognized, for the purpose of reasonable notice for
termination, a category of dependent contractor as distinct from
independent contractors or employees. It remains to be seen how this
will effect other areas of private law such as vicarious liability.

Cheers, 

--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435