Independent Contractor

Feb 13

Consulting Agreements | Independent Contractor Agreements… (Part 4)

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to becoming an independent contractor, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Ontario business lawyers in this regard. You can also contact me directly at michael@carabashlaw.com.

As a follow up to my last blog, in this blog, I’ll be discussing some of the basic terms you may find in a standard independent contractor agreement.

Expenses, Taxes, and Withholdings
The agreement should be clear who is responsible for expenses incurred in the course of the independent contractor offering the services. Such expenses include travel, accommodation, meals, equipment (which includes costs associated with acquiring, maintaining, replacing, renting, transporting, insuring, and disposing of equipment), etc. That said, when it comes to taxes and withholdings, it’s customary for the Contractor to be responsible for withholding and remitting its own taxes, CPP, EI, WSIB, etc. (and the costs of procuring those and other benefits).

Term and Termination
You’ll also want to discuss the term and method of terminating the agreement. In the latter, the Client will typically want to include the concept of Just Cause (e.g. which could include serious misconduct or breach of the independent contractor agreement), which a client can raise to terminate the independent contractor at any time and without the requirement to provide notice or payment in lieu thereof. You’ll also find termination provisions dealing with a party unilaterally ending the contract by simply providing notice or by mutual written agreement. You can, if you wish, add further termination clauses such that the agreement is terminated on the death or bankruptcy of one of the parties, or if one of the parties attempts to make an assignment contrary to the agreement.

Confidentiality and Non-Disclosure
The Client may want to include provisions dealing with confidential information. It’s best to do this through a separate written agreement, as this can make the independent contractor agreement bulky (i.e. you’ll end up adding 5-10 more pages for a confidentiality and non-disclosure agreement).

Proprietary Rights
This section of the agreement deals with who owns proprietary rights and enhancements to those proprietary rights during the course of the engagement and thereafter. You should give careful consideration to defining the proprietary rights as all of the provisions related to it flow from what it includes.

Non-Compete, Non-Solicitation, Non-Disparagement
Non-compete clauses are designed to protect the Client by preventing the Contractor from competing in the Business (recall that this is a defined term) during and after the term of the contract. Non-solicitation clauses are another form of restrictive covenant whereby the Contractor agrees not to solicit Customers or employees of the Client. Finally, Non-Disparagement clauses are meant to prevent the Contractor from making defamatory statements against the Client. Make sure to have a lawyer review these clauses for you if you have any doubts as there are strict legal tests that must be met in order for these clauses to be enforceable.

Injunctive Relief
The Client will want to be able to bring an interlocutory injunction (think of it like a mini trial prior to the trial) to the court to require the allegedly offending party to stop competing (due to the irreparable harm they caused) until the entire matter is disposed of at trial. This remedy does not require that the Client actually prove damages and is in addition to other remedies which the Client may have in the contract or elsewhere (e.g. based on negligence).

Indemnification
You should spell out in this section that the Contractor will indemnify (i.e. pay for) the Client for all claims related to the Contractor’s failure to remit taxes, CPP, EI, failure to abide by laws, or negligent performance of the Services. Remember: this section is a negotiation point and the language can always be tweaked.

General Terms
The end of the Independent Contractor Agreement should include general terms to help fill in certain blanks about the agreement, how it is to be entered into or interpreted, etc. Some of these terms include:

Acknowledgments: the parties acknowledge that they’ve read the agreement, understood it, believe it to be fair and reasonable, have had independent legal advice regarding it, and are entering into it freely
Assignment: can this be done at all, by one of the parties, by both parties consenting in writing?
Amendment: can this be done at all, for example, by both parties consenting in writing?
Entire Agreement: i.e. this agreement supersedes all other agreements – whether oral or written – relating to the same subject matters in the agreement
Governing Law: which jurisdiction governs the interpretation and enforcement of the agreement?
Interpretation: singular vs. plural; masculine vs. feminine, section headings, etc.
Severability: in case one provision is struck down and rendered invalid doesn’t mean the rest of the agreement is
Survival of Terms: which terms, if any, survive the expiration or termination of the agreement?
Waiver: e.g. no failure or delay of a party to enforce or exercise its rights under the agreement constitutes a waiver

Signing
The final section of the agreement (other than any schedules or exhibits) requires that the parties (or their duly authorized representatives) to sign and deliver the agreement. Signing the agreement without delivering it is not enough to make the agreement effective. There must be delivery. While not a legal requirement, it is good practice that witnesses be present and sign their names alongside the parties’. Also, it is also good practice for the parties to initial their names on the bottom right hand corner of every page.

Remember, if you need a lawyer to review, draft, revise, negotiate or resolve a dispute concerning an independent contractor | consulting agreement, make a post on Dynamic Lawyers or contact me directly at michael@carabashlaw.com.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Schedules

This Agreement can be used by a Client who wants to engage the services of an Independent Contractor (e.g. a consultant, a professional, a general worker, etc.) without creating an employment relationship. The “Client” means that this Independent Contractor Agreement favours the Client – for example, through notice, termination, standards of care, and restrictive covenants, etc. The “No Schedules” means that there are no schedules in this particular Independent Contractor Agreement – although some have a Statement of Work or Description of Work, etc. This one does not. There will be different versions of this agreement which favour both the Client and the Independent Contractor and which may include Schedules. Schedules aren’t absolutely necessary. They’re just one way of having an agreement instead of writing things out in the actual agreement, you simply modify the Schedule. Here’s the sample Video Guide that comes with this Independent Contractor Agreement (Client) – No Schedules:

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

written by admin \\ tags: independent contractor, independent contractor agreement, independent contractor template

Feb 13

Consulting Agreements | Independent Contractor Agreements… (Part 3)

Business Law 1 Comment »

As a follow up to my last blog, in this blog, I’ll be discussing some of the basic terms you may find in a standard independent contractor agreement.

Relationship
This part is important. The parties are separate and independent. They’re not creating a partnership, joint venture, franchise or employment relationship. If they do end up creating one of these other relationships, the Client could be increasing its risk and liability when it comes to complying with legislation that governs those business relationships. The classic scenario involves an Independent Contractor being terminated and wanting what it is entitled to under the Employment Standards Act (Ontario), as amended. There are minimum notice and severance requirements under that Act which “employees” are entitled to. If the Independent Contractor claims them against the Client, the client will need to defend itself by showing that the relationship was not employee-employer but one of Client-Independent Contractor. This will be shown be looking at the relationship in all of the circumstances (e.g. how the work was done by the independent contractor, who owned the tools, how the contractor was paid, whether the contractor could earn more profit and risk losses, whether the contractor had multiple clients, etc). Remember: the test to determining whether a worker is an employee or independent contractor differs based on the legislative context ¬– e.g. Employment Standards, Workplace Safety, Income Tax, etc.

Payment
In this part, you’ll want to discuss what the independent contractor will get paid, how often, and whether the Client can validate the invoices before paying. You can also attach as a Schedule a draft form for the Contractor to use as an invoice. Alternatively, you can simple state that the invoice will be “in form and substance satisfactory to the Client”.

Materials and Equipment
Typically, the Independent Contractor is the one who owns the tools to perform the Services. Sometimes, tools may be provided by the Client, although this is more an indication that the relationship is one of the employee-employer instead of client-contractor. You may want to include language here that deals with the Client lending its tools temporarily to the Contractor and requiring the Contractor to be responsible for loss or damage to those tools.

Still more terms to discuss coming up in the next and final blog on this topic…

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Schedules

written by admin \\ tags: dispute, independent contractor, independent contractor agreement, independent contractor template, negotiate, payment

Feb 13

Consulting Agreements | Independent Contractor Agreements… (Part 1)

Business Law 1 Comment »

In this blog, I’ll be discussing: who are independent contractors and when are independent contractor agreements used?

Who is an Independent Contractor?
An independent contractor is a person who carries on business as a separate business entity. That business entity could be an individual, a sole proprietorship, a corporation, a partnership, a franchise, joint venture, etc. It doesn’t really matter what legal structure the independent contractor takes. What matters is the relationship between the independent contractor and his, her, or its client (i.e. the person paying the independent contractor for products or services).

Unlike an employee, an independent contractor performs the work if it wants to, how it wants to, when it wants to (you get the point). That said, the independent contractor may agree to provide the services in accordance with the client’s rules, policies, procedures, etc. or in consultation with the client or another person. There may also be other minimal standards imposed on how the services are to be performed. An independent contractor generally has multiple clients and its relationship with those clients is (or at least should be) governed by a written agreement. The independent contractor may itself hire other independent contractors or employees to perform the work (unless the agreement says otherwise). Another big difference between an independent contractor and an employee is the lack of legislative protection the former has: no minimum wage, maximum hours, or minimum notice or severance requirements upon termination. Indeed, an independent contractor is generally disengaged or terminated pursuant to the terms of the agreement.

When are Independent Contractor Agreements used?
Independent Contractor Agreements are used when the parties want to remain separate and specifically want to avoid creating an employment (or other) type of relationship. There are various reasons for this. For example, the independent contractor may want to remain independent because they:

Run their own business.
Have multiple clients.
Decide when and how to do work.
Want to deduct business expenses from their taxable income.
Own their own tools and equipment.
• Want to be able to make more money.

For its part, the client will be able to avoid the hassle of withholding and remitting income taxes, employment insurance premiums, and Canada Pension Plan contributions on behalf of the independent contractor. These things should be reflected in the independent contractor agreement (as will liability in case the opposite holds true).

If the Independent Contractor is in reality an employee in Ontario, then the employer is required (among other things) to withhold and remit income tax payable by the employee, Employment Insurance premiums on the employee’s insurable earnings, and Canada Pension Plan contributions in respect of the employee’s pensionable employment earnings. The employer would also need to comply with the termination (minimum notice periods or pay in lieu of notice) and severance provisions in the Ontario Employment Standards Act. Finally, the employee will only be able to make certain limited deductions against their taxable income (e.g. travel, home office, etc.).

Overall, IT IS VERY IMPORTANT that the client and the independent contractor STRUCTURE THE REALITIES of their relationship to be that of client and independent contractor and NOT employer and employee. Simply making the contract look more like an independent contractor agreement instead of an employment agreement won’t do it. If there is ever a dispute about the nature of the relationship, tribunals, courts, and other triers of fact will look at the realities of the relationship – not just what’s written on paper.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Schedules

written by admin \\ tags: consulting agreement, consulting agreement template, independent contractor, independent contractor agreement template, independent contractor agreements

Sep 28

Independent Contractors: wondering about GST?

Business Law No Comments »

So you’ve just started out as an independent contractor and the question comes up: what should I do about GST?

GST or “Government Sales Tax” is the tax that applies to the supply of most goods and services in Canada. The rate is currently 5%.

Businesses are required to collect GST and remit it to the government.

According to the CRA, businesses are required to register for GST if they no longer qualify as a small supplier because their worldwide taxable supplies of goods and services exceed the small supplier limit of $30,000 in a single calendar quarter or in four consecutive calendar quarters.

So if you qualify as a small supplier, why would you bother to collect and remit GST? Well, if in four consecutive calendar quarters, you believe that your worldwide taxable supplies of goods and services will exceed the small supplier limit of $30,000, then you’ll have to remit GST. If you never registered prior to reaching that limit, then you won’t be able to reduce your GST liability through allowable business expenses (which are eligible for input tax credits). Remember: you only remit to the government your net GST (i.e. GST collected minus total input tax credits).

Once you become a GST registrant, you are responsible for collecting GST from your customers on all taxable goods and services you sell or supply in Canada. To this end, your responsibilities include:

Informing your customers that GST is payable (e.g. on invoices, receipts, contracts, etc.)
Collecting GST and holding in trust until you remit it to the CRA;
Maintaining proper books and records (if you want to destroy your records before keeping them at least 6 years after the year end to which they relate, then you have to get written approval from the CRA);
Calculating your net tax; and
Filing your returns on time.

For more information on GST, visit the CRA’s website on that topic here.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Schedules

written by admin \\ tags: allowable business expenses, business lawyers, collecting gst, consecutive calendar quarters, cra, educational purposes, government sales, gst independent contractor, gst liability, gst number, independent contractor, input tax credits, ontario business, professional assistance, proper books, sales tax

Jul 07

Independent Contractor Agreement | Independent Contractor Contract – Part 3 – Nuances

Business Law 2 Comments »

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to finding an independent contractor lawyer or attorney, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Ontario independent contractor agreement lawyers registered on the website who can assess your business needs and help you draft, understand, negotiate, and resolve disputes involving an independent contractor agreement or contract – I should know, I’m one of them! If you want to speak with me directly, you can contact me at michael@dynamiclawyers.com.

In this blog, I’ll be discussing some nuances when it comes to drafting independent contractor agreements and contracts. Be sure to check out my previous 2 blogs about independent contractors: the basics and a general template.

Description of Work
In this part of the agreement, the parties will be able to easily outline the terms under which the independent contractor will do work. A description of work is merely a standard document that is attached and incorporated into the agreement which allows the parties to agree on what work needs to get done. The description of work will typically include information about the services to be performed, the start date and end date, compensation, a payment schedule (if any), required status reports (if any), the client’s special conditions of acceptance, (if any), etc.

Character of the Relationship
It is very important that the parties spell out what the nature or character of their relationship is going to be. Granted, they want to be independent businesses working at arm’s length with each other. But the realities may dictate otherwise (e.g. the relationship may be that of employer-employee, joint venturers or partners, trustee and beneficiary, etc.). Hence, it’s important that the agreement state clearly that the relationship is one of independent contractor and client. The realities must also reflect this. There are many factors which courts and other triers of fact will use to determine what exactly the relationship is – including control, ownership of tools, ability for the alleged independent contractor to make more money or make a loss, supervision and management of the work, training, payment type and method of payment, hours of work and length of engagement, etc. It’s best to try to address these factors in the agreement so you don’t end up leaving it to a court to determine based on the totality of factors.

Expenses
The independent contractor agreement should make it clear who is responsible for expenses incurred in the course of the independent contractor offering the services. Such expenses include travel, accommodation, meals, equipment (which includes costs associated with acquiring, maintaining, replacing, renting, transporting, insuring, and disposing of equipment), etc.

Personal Information and Privacy
Many people may forget to include provisions about this in their independent contractor agreement, but it’s essential to have: the independent contractor should consent to the disclosure and use of their personal information and should also acknowledge that they may become, in the course of their engagement, aware of personal information about others. Hence, the independent contractor agreement should stipulate that the Independent Contractor agrees to follow the company’s policy/code/rules and the applicable privacy legislation with respect to the collection, use, disclosure, etc. of personal information. Finally, there should be a provision in the indemnification provisions dealing with breaches – either real or alleged – of privacy legislation or of this section of the agreement dealing with personal information.

Conclusion
Remember, if you need to consult with a lawyer about independent contractor lawyer or attorney about drafting, understanding, negotiating, etc. your independent contractor agreement, be sure to make a post on Dynamic Lawyers or contact me directly at michael@dynamiclawyers.com.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Schedules

written by admin \\ tags: independent contractor, independent contractor agreement, independent contractor agreement template, independent contractor contract

Jun 07

Independent Contractor/Consulting Agreements – Part 2 (Template)

Business Law, Employment 2 Comments »

Please keep in mind that this is not legal advice. The information provided herein is for educational purposes only. If you would like to get in touch with a lawyer to help you draft, interpret, negotiate or resolve a dispute about independent contractor/consulting agreements, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers). We have Toronto and Ottawa lawyers who can assist you in this regard.

In this blog, I’ll be discussing a basic structure one could use to put together an independent contractor/consulting agreement.

Parties
Typically, at the beginning of the contract you’ll need to properly identify the parties (e.g. individuals, corporations, etc.). You should make sure that this is done with utmost precision (i.e. hire a lawyer!) because if there are any mistakes here, you’ll be done for in case of a dispute.

Effective Date
You should also mention when the independent contractor/consulting agreement is being entered into.

Recitals
This is the background leading up to the terms and conditions of the independent contractor/consulting agreement. Recitals are part of the agreement and you can include wording in the General Terms (at the end of the agreement) to reflect this. So in this part, you’ll want to include something saying that the parties wish to contract for X and do so on the following terms and conditions.

Agreement – Basics
After the recitals, I like to include provisions which make it clear that the parties acknowledge that the recitals are fair, true and complete and that this agreement supersedes and replaces all other prior agreements of the same nature.

Terms of Engagement
Here, you’ll want to include provisions about the scope of engagement (i.e. what the client is hiring the independent contractor to do), the character of the relationship (i.e. independent contractor/consultant and not employer; you’ll also want to discuss liability for income tax and other withholdings and remittances), and equipment (e.g. the independent contractor/consulting is responsible for supplying and maintaining).

Term and Termination
You’ll also want to discuss the term and method of terminating the agreement. In the latter, you’ll typically find the concept of Just Cause (e.g. which could include serious misconduct or breach of the independent contractor/consulting agreement), which a client can raise to terminate the independent contractor at any time. You’ll also find termination provisions dealing with a party unilaterally ending the contract by simply providing notice, the contract ending because of a breach of a confidentiality provision, or the contract ending because the independent contractor has died, become insolvent/bankrupt, or has attempted to illegally assign its interest in the contract to a third party.

Remuneration
In this part, you’ll want to discuss what the independent contractor/consultant will get paid, how often, how that can be adjusted, etc. You’ll also want to, once again, discuss the implication of withholdings and taxes (i.e. who is responsible).

Representations and Warranties
Here, you’ll want to put provisions in place to try to ensure that the independent contractor/consultant is the right person for your needs. You could include a standard of care provision (e.g. the independent contractor will perform the services equivalent to a qualified, competent, and prudent professional, etc.), a qualifications requirement, and a requirement that the independent contractor/consultant comply with company policies and standards. You could also include a provision whereby the independent contractor/consultant states that there are no known proceedings or investigations against him or her that could result in their losing their qualifications and that there are no restricting arrangements in place that would prevent the independent contractor from executing or properly performing the agreement.

Confidentiality and Non-Disclosure
Here, you’ll want to include provisions dealing with confidential information. You’ll need to define it (also, this includes a section of what confidential information is NOT). You’ll need to place restrictions on the independent contractor/consultant regarding it (e.g. non-disclosure, protection, non-use, etc.). You might also find provisions here dealing with the return and/or destruction of confidential information upon the client giving notice to the independent contractor/consultant.

Proprietary Rights
This section of the agreement deals with who owns proprietary rights and enhancements to those proprietary rights during the course of the engagement. Make sure you get a lawyer to help you understand and draft these provisions (VERY IMPORTANT!).

Indemnification and Limitation of Liability
You should spell out in this section that the independent contractor/consultant will indemnify the client for the client’s failure to deduct expenses or contribute payments (e.g. employment insurance, Canada Pension Plan) on behalf of the independent contractor. With respect to the limitation of liability, this is a great provision to have in place that says, in capital letters, that the independent contractor agrees that the client will not be responsible for special, indirect, exemplary, punitive or consequential damages and then list out some types of damages for which the client will not be responsible (e.g. lost profit or revenue, loss of property, loss of business reputation, etc.). Notwithstanding all of this, you’ll want to include provisions saying that the client’s cumulative liability for breach of contract, commission of a tort, strict liability, negligence, or otherwise is $XXX.

General Terms
Here, you’ll find terms dealing with things like (but not limited to):

Notice (how do the parties give notice under the agreement for things like termination).
Assignment (e.g. is this to be done by the parties having to consent in writing?)
Survival of terms (i.e. if a term is found by a court to be void, should the rest of the agreement survive?)
Governing Law (which jurisdiction governs the interpretation and enforcement of the agreement?)
Amendment (how is this to be done?)
Entire Agreement (i.e. this agreement supersedes all other agreements – whether oral or written – relating to the same subject matters in the agreement)
Waiver.
Interpretation
Independent Legal Advice
Currency.

Please keep in mind that there are many other kinds of terms and conditions you can find in the general terms section of this agreement. You should consult with a lawyer to address these general terms.

Execution
The final section of the agreement (other than any schedules or exhibits) requires that the parties, or duly authorized representatives of the parties with the power to bind, execute the agreement. It is sometimes a requirement that witnesses be present and sign their names alongside the parties’.

written by admin \\ tags: consulting agreement, consulting agreements, independent consulting agreement template, independent contractor, independent contractor agreement template, toronto lawyers

Jun 07

Independent Contractor/Consulting Agreements – Part 1 (Basics)

Business Law 1 Comment »

Please keep in mind that this is not legal advice. The information provided herein is for educational purposes only. If you would like to get in touch with a lawyer to help you draft, interpret, negotiate or resolve a dispute about independent contractor/consulting agreements, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).

Independent Contractor/Consulting Agreements are used by Ontario clients where they do not want to create an employment relationship with the independent contractor. There are various reasons for this, such as:

The independent contractor/consultant ["IC"] has his or her own business.
The IC charges his or her own GST and remits it to the government.
The IC pays its own taxes and can deduct business expenses from his or her taxable income.
The IC owns his or her own tools and equipment.
The IC is not economically dependent on one particular client.
The IC has the ability to make more money by having more clients/customers.
The IC risks losing money by not being guaranteed a salary or wages.
The IC has control over obtaining, doing, and delivering the work.
The IC’s relationship with the party contracting for his or her services can be terminated according to the service agreement.

For the client, this means that they do not have to withhold and remit income tax source deductions or pay employment insurance or Canada Pension Plan premiums on behalf of the IC. These things will, no doubt be reflected in the independent contractor/consulting agreement (as will liability in case the opposite holds true).

If the IC is in actuality an employee in Ontario, then the following rules apply:

The employer is required to withhold and remit income tax payable by the employee.
The employer is required to withhold and remit employment insurance on the employee’s insurable earnings.
The employer is reuqired to withhold and remit the employee’s Canada Pension Plan contribution in respect of his or her pensionable employment earnings.
The employer is required to abide by the termination (notice or pay in lieu of notice) and severance provisions in the Ontario Employment Standards Act.
The employee will only be able to make certain limited deductions against their taxable income (e.g. travel, home office, etc.).

There are many, many more obligations imposed on the employer in various legal contexts which will be discussed in other blogs.

Given these things, IT IS VERY IMPORTANT that the client and the IC structure the realities of their relationship to be that of client and IC and NOT employer and employee (assuming that is the intention). That’s right: I wrote “structure”. Simply making the contract look more like an independent contractor/consulting agreement instead of an employment agreement won’t do it. If there is ever a dispute about the nature of the relationship, then tribunals, courts, and other triers of fact will look at the realities of the relationship – not just what’s written on paper.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further: