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Required adherence to code of conduct means court interpreter is an employee, B.C. Court of Appeal rules

| January 1, 2000

Determining whether a person is an employee or an independent contractor can be a vexing problem for an adjudicator. As one commentator has put it:

“The plain fact is that in a large number of cases the court can only perform a balancing operation, weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. … [I]t is not to be expected that this operation can be performed with scientific accuracy.”

This operation has again recently been performed by the British Columbia Court of Appeal in Truong v. British Columbia (September 13, 1999), an appeal from a decision awarding damages for wrongful dismissal to Hue Truong, a court interpreter for the provincial Court Services Branch. The main issue in the appeal was whether the trial judge had erred in concluding that Truong was an employee and not a contractor.

The trial judge, in assessing the nature of Truong’s work for the Court Services Branch, had found that the most compelling evidence that she was an employee was “the nature and degree of control inherent in her relationship with Court Services”. Court Services dictated where and when Truong worked, as well as her conduct on and off the job. Further, the judge noted that Truong had been disciplined on several occasions.

The appellant argued that the judge had erred in overemphasizing, to the detriment of other factors, the control exerted over Truong and the procedures which she was required to follow. The majority of the Appeal Court disagreed, and pointed to several provisions of the “Court Interpreters’ Professional Code of Conduct” issued by the province. This document, among other things, mandated how court interpreters were to interpret, and prohibited interpreters from delegating assigned work to other interpreters.

It was true, the Court stated, that some of the evidence supported the view that Truong was a contractor. However, the final determination is based on a consideration of all the relevant factors, and in this case, those factors favoured the conclusion that Truong was an employee. (See also “Independent contractors and agency personnel – Are they employees?” on our Publications page.)

For further information, please contact Colleen Dunlop at (613) 563-7660, Extension 222.