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Canada is often viewed as a natural extension of the American direct selling ecosystem: it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice. This includes the appropriate “Canadianization” of plan documents and overall business strategies.

In the fifth of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

The Employee or Independent Contractor Issue

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New Part XI.1 to the Employment Standards Act (the “ESA”), titled “Written Policy for Electronic Monitoring”, generally requires employers who had 25 or more employees as of January 1, 2022 to put in place a written policy with respect to electronic monitoring of employees by October 11, 2022, and to share that policy with their employees. The Ontario government indicated that this requirement would “provide transparency for employees with the goal that employers will tailor electronic monitoring to legitimate business purposes”. 

In July 2022, Ontario updated the online Guide to the Employment Standards Act (the “Guide”) to add a new section giving employers basic information on the need for a written policy for electronic monitoring of employees, and provide some relevant examples for employers to consider.

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The distinction between employees and independent contractors has always been an important one in Ontario because while employees are covered by the protections of the Employment Standards Act, 2000 (e.g. sick pay, maternity leave, etc.), independent contractors are not.

While there is no simple formula to determine whether a worker is an employee or an independent contractor, the Ontario government has outlined some factors to consider when trying to make this determination.

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