Bill 88: What business and IT consultants in Ontario need to know

The Ontario government’s recently passed Bill 88, the Working for Workers Act, 2022, isn’t done making changes to the province’s Employment Standards Act, 2000 (ESA).

On Jan. 1, 2023, certain business consultants and information technology (IT) consultants were excluded from the ESA. Bill 88 includes new definitions for both types of consultants.

Prior to the change taking effect, the Ontario Bar Association (OBA) warned the Ministry of Labour, Training, and Skills Development that it could “generate confusion among workplace parties and risk increased litigation costs for individuals, businesses, and organizations.”

“The [exemptions] for business and information technology consultants are quite broad and appear to presumptively exclude a significant number of new categories of workers from the application of the ESA,” the OBA said in its submission.

LEARN MORE 
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• Employment lawyer discusses Bill 88 with CTV News

Definition of a “business consultant”

According to Bill 88, a business consultant is an individual “who provides advice or services to a business or organization in respect of its performance.”

This includes providing advice or services on:

• Operations, structure, and processes
• Profitability, finances, accounting, and procurements
• Management
• Risk management and compliance
• Human resources
• Marketing and other business strategies
• Environmental impacts

Definition of an “IT consultant”

According to Bill 88, an information technology (IT) consultant is an individual “who provides advice or services to a business or organization in respect of its information technology systems.”

This includes providing advice or services on:

• Planning, designing, and developing IT systems
• Installing, testing, and analyzing IT systems
• Documenting and configuring IT systems

What criteria needs to be met to qualify as either consultant?

The following requirements need to be met for an individual to be considered a business or IT consultant under Bill 88:

• The consultant provides services through a corporation or a sole proprietorship
• There is an agreement that sets out when and how much the consultant will be paid for their services (must be at least $60 per hour, excluding bonuses, commissions, benefits, expenses, and travelling allowances)
• The consultant is paid the amount that was set out in the agreement

Concerns about misclassifying employees

Given the broad definitions of what constitutes a business consultant and an IT consultant under Bill 88, it’s crucial for employers in Ontario to make sure that non-unionized employees aren’t misclassified as consultants or independent contractors.

In some cases, companies intentionally misclassify staff as independent contractors to avoid acknowledging certain employment rights, including minimum wage, vacation pay, overtime pay, and severance, when an individual is fired without cause.

WATCH: Employment lawyer Lior Samfiru explains the difference between an employee and an independent contractor on an episode of the Employment Law Show.

Employers in Ontario can’t avoid the issue by having non-unionized workers sign an employment contract that claims they are an independent contractor rather than an employee.

Our legal system provides guidelines for determining whether someone is a contractor or employee. To find out what you are, use our firm’s Pocket Employment Lawyer.

If you are a non-unionized employee who has been misclassified as an independent contractor, contact Samfiru Tumarkin LLP immediately.

ADDITIONAL RESOURCES
• Employment Law Show: Employees vs independent contractors
• Employment Law Show: Rights for independent contractors
• Employment Law Show: Things to never do before seeking legal counsel

Received a new employment contract? Speak with a lawyer

After reviewing the new definitions for business and IT consultants under Bill 88, employers in Ontario might ask non-unionized workers to sign a new employment contract that classifies them as a consultant instead.

Before accepting a new agreement, have it reviewed by the experienced employment law team at Samfiru Tumarkin LLP. Your boss can’t force you to sign it immediately or a few days after it was provided to you.

LEARN MORE 
• Starting a new job? Here’s how an employment contract could limit your rights
• ’60 days or more’: Is it an enforceable termination clause?
• Employment Law Show: 5 things to know about employment contracts

Our lawyers in Ontario can confirm if you should be classified as an employee and advise you on how best to navigate the situation.