On 8 August 2018 the Canada Industrial Relations Board rendered a decision(1) in which it examined for the first time how the concept of an 'independent contractor' should be applied when determining the status of an 'artist' under the Status of the Artist Act.(2)
The board also examined the intended scope of a universal bargaining unit and confirmed that this may vary depending on the context.
The union – the Syndicat des Employé(e)s de TVA, Local 687 (CUPE) – filed an application under Section 18 of the Canada Labour Code seeking to have Denis Lévesque declared an employee covered by the intended scope of his bargaining unit. The bargaining unit included "all employees" of Groupe TVA Inc working in Montreal, excluding those in the roles listed in Appendix A of the certification order.
In response to the application, TVA and the Union des Artistes (UDA) argued that Lévesque was an artist and thus an independent contractor covered by the Status of the Artist Act and the UDA's bargaining unit.
To resolve the issue, the Industrial Relations Board had to examine the following questions:
- Was Lévesque covered by the union's universal bargaining unit?
- Was Lévesque an artist and therefore an independent contractor under the Status of the Artist Act and covered by the UDA's bargaining unit?
To answer the first question, the board began by examining the duties performed by Lévesque and concluded that he was a television host, rather than a journalist or newsreader. The board then examined the intended scope of the certification held by the union in order to determine whether it covered the role of television host.
Although the union's bargaining unit was described as universal in the sense that any new classification or role was included in it unless the parties agreed to exclude it, the board concluded that the role of television host was not part of the bargaining unit, even though it was not expressly referred to in Appendix A of the certification order.
The board held that the role of television host existed at the time that the certification order was made and that although the role was not excluded by Appendix A, it:
- had not been claimed by the union;
- had not been included in the collective agreements signed by the parties; and
- was not included in the role descriptions.
The board confirmed that even where a bargaining unit is described in general terms, a role can nonetheless be excluded from its intended scope if it existed when the certification order was made and was not claimed by the union, either at that time or at a subsequent time.
To answer the second question, the board had to interpret the concept of an 'artist' under Paragraph 6(2)(b) of the Status of the Artist Act, which provides that an 'artist' is an independent contractor – a concept that is distinct from a dependent contractor, which is included in the definition of 'employee' under the Canada Labour Code. In addition, the UDA's certification order provided that its scope was limited to performers, who are independent contractors.
The board accepted TVA and the UDA's claim that a specific analysis must be applied to the concept of an 'independent contractor' in the case of artists since, by virtue of the nature of the occupation, the producer evidentially retains some control over the service performed by the artist. Accordingly, the traditional criteria for determining whether a person is a dependent or independent contractor (eg, the degree of control and economic dependence) form part of a contextual analysis.
The board concluded that applying these criteria strictly, without taking the context of the arts world into account, would render the Status of the Artist Act meaningless. Accordingly, although a producer may have a degree of control over the work performed by an artist (eg, in terms of work schedules or by imposing a broadcast theme or programme constraints), such factors cannot prevent an artist from being an independent contractor under the act.
Applying these principles to the evidence submitted, the board concluded that Lévesque was an artist under the Status of the Artist Act and performed the duties of a television host, which falls within the scope of the UDA's certification order.
By affirming TVA and the UDA's interpretation of the concept of an 'independent contractor', the board followed the path outlined by the courts in tax cases, adapting the traditional criteria developed for an independent contractor in the tax field to the situation of artists. Thus, the board has opened the door to a more contextual interpretation of an 'independent contractor' in certain circumstances.
Moreover, the board stated that the meaning of a universal bargaining unit may vary depending on the particular context.
For further information on this topic please contact Stéphane Fillion or Emilie Paquin-Holmested at Fasken by telephone (+1 514 397 7400) or email (firstname.lastname@example.org or email@example.com). The Fasken website can be accessed at www.fasken.com.
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