Camila is 45 years old and has worked as a Food SupplementConsultant at Healthy & Fit Inc. (the "Company") for the last9.5 years. The Company specializes in the sale of food supplementand vitamin products in Ontario and has an annual payroll of $3millions. The Company hires consultants like Camila throughout theprovince and assigns them a specific and exclusive geographicalarea (e.g. North York, Downtown Toronto, Barrie, etc.).
Camila and the other consultants sell the Company’s productsdoor-to-door throughout their designated area and hold events andseminars at local community centres. Camila's contract is entitled"Independent Consultant Agreement". As per the Agreement, Camila ispaid 3% for each product sold. Once a month, she picks up whateverproducts she needs from the Company's warehouse and delivers theprevious month’s sales proceeds to the Company. She does most ofher work from home or on the road going door-to-door. She uses herown car. Although she provides some additional dietary services forher own account, she is forbidden from selling any other foodsupplement and vitamin products. She works three days a week –typically Thursday to Saturday, from 3pm – 7pm, when potentialcustomers are most likely to be at home.
Last week, Camila was advised that the Company was undergoingfinancial difficulties and that her last day at the Company wouldbe in 2 weeks as per the notice period in her Agreement.
a) Discuss the arguments for and against Camila being anemployee. [3 marks]
b) If Camila was an employee, would you advise her tosue for termination notice and severance pay under the EmploymentStandards Act or wrongful dismissal damages under the common lawand why? Compare her possible entitlement to each and explain yourchoice. [4 marks]
