Onof Appeal (2017 QCCA 1237), putting apart a selection of Lavoie J. (2016 QCCQ 1789).
The provision of cleaning services in public buildings placed within the Québec vicinity are blanketed via a collective settlement, the Decree respecting constructing provider employees inside the Québec area. The Decree units out minimum standards in the workplace, along with wages, hours of work, vacations, and additional time, and is ruled by using the Act respecting collective settlement decrees. The Act makes the Comité Partenaire de l’entretien d’édifices publics de la région de Québec (“Committee”) chargeable for overseeing compliance with the Decree, and it could consequently take any essential movement bobbing up from the Decree on behalf of personnel.
In 2014, the Committee started proceedings in opposition to Modern Cleaning Concept Inc., claiming $9,219.32 in unpaid wages and other blessings about cleaning services carried out by way of B. Modern provides cleaning and protection services to the Québec location through a community of franchises. It negotiates cleansing contracts with clients and assigns them for particular locations to its franchisees, who perform the cleaning and upkeep of paintings.
B became a franchise in January 2014, agreeing to carry out cleaning services exclusively through the franchise courting. After five months of working inside the Modern community, B terminated his franchise settlement. The Committee investigated the relationship between B and Modern. It changed into the view that the language of the franchise settlement changed into no longer determinative of the truth of the connection between B and Modern. In truth, B becomes a “worker” as described by way of the Act, now not an independent contractor. He was therefore entitled to be paid the required wages and benefits set out in the Decree.
Theconcluded that there has been a common aim that B might be an impartial contractor, no longer an employee. Accordingly, B becomes no longer entitled to the amount claimed with the Committee’s aid on his behalf. Allowing the appeal, a majority in the Court of Appeal turned into the view that the trial decides made a palpable and overriding blunder in failing to take into account the character of the assignments of the cleaning contracts from Modern to B and that by way of failing to recognize that Modern remained contractually at risk of its customers, the trial choose erred in his evaluation of whether or not B turned into a worker or an impartial contractor. The into a worker and ordered Modern to pay the $9,219.32 claimed with the Committee’s aid on behalf of B.
Held (Côté, Brown and Rowe JJ. Dissenting): The attraction has to be disregarded.
Per Wagner C.J. And Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.:
The trial choose’s failure to recall Modern’s business version’s tripartite nature became a palpable and overriding mistake warranting appellate intervention. These blunders triggered the trial to decide to err in his assessment of whether or not B became a worker or an unbiased contractor. B is a “worker” in the which means of the Act and Modern is correspondingly an “expert enterprise.” Therefore, the obligatory provisions of the Act and Decree govern the connection among Modern and B, and B is entitled to the wages and advantages claimed on his behalf by way of the Committee.