Canadian Labour Congress, Chartered Local Union No. 1689 (Canadian Association of Burlesque Entertainers) v. Algonquin Tavern, 1981 CanLII 812

Canadian Labour Congress, Chartered Local Union No. 1689 (Canadian Association of Burlesque Entertainers) v. Algonquin Tavern

[1981] OLRB Rep. August 1057

0752-80-R; 0827-80-R; 0878-80-R; 1048-80-R Canadian Labour Congress, Chartered Local Union No. 1689 (Canadian Association of Burlesque Entertainers), Applicant v. Algonquin Tavern, Respondent; Canadian Labour Congress, Chartered Local Union No. 1689 (Canadian Association of Burlesque Entertainers) Applicant, v. Waverley Hotel Ltd., Respondent; Canadian Labour Congress, Chartered Local Union No. 1689 (Canadian Association of Burlesque Entertainers), Applicant, v. Carousel Inn (Oshawa) Limited), Respondent; Canadian Labour Congress, Directly Chartered Local No. 1689, Canadian Association of Burlesque Entertainers, Applicant, v. Colonial Tavern Limited

Respondent.

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members J. A. Ronson and B. Armstrong.

APPEARANCES: Mary Cornish, Ralph Ortlieb, Ed Wright and Mary Johnson for the applicant; David L. Wakely, Allen V. Craig and Mike Rebryk for Algonquin Tavern; no one appearing for Waverley Hotel Ltd.; no one appearing for Carousel Inn (Oshawa) Limited; no one appearing for Colonial Tavern Limited.

DECISION OF THE BOARD; August 6, 1981

1This is a series of applications for certification involving the Canadian Association of Burlesque Entertainers ("the union") and the Algonquin Tavern, The colonial Tavern, the Waverley Hotel, and the Carousel Inn. Another panel of the Board is seized with the narrow issue of whether the union has demonstrated sufficient evidence of "organization" so as to be entitled to trade union status within the meaning of section 1(1 )(n) of The Labour Relations Act. A more difficult question concerns the "employee status" of the individuals whom the union seeks to represent. If they are "employees" or "dependent contractors", they are entitled to engage in collective bargaining. If, on the other hand, they are "self-employed" or "independent contractors", they are not.

2In accordance with its usual practice, the Board appointed a labour relations officer to inquire into the functions of the subject individuals. Only the Waverley and Algonquin chose to take an active part in these proceedings, and only the Algonquin was represented by counsel. The evidence, upon which the Board's decision is based, consists of a transcript of some 300 pages of testimony given before the labour relations officer. No one has contested the accuracy of the completeness of that record.

3It will be convenient to deal initially with the nature of the industry, and the common features of the evidence respecting the various respondents. The situation of Rachel Berchtold, a "house dancer" at the Colonial, shares many of those features, but is sufficiently different to merit separate consideration.

4The individuals here alleged to be employees are male or female burlesque entertainers, hired to entertain an audience by dancing and removing their clothing either to total nudity or a "G-string". The respondents, and the alleged employers in these proceedings, are hotels or taverns who hire burlesque entertainers. There are at least 250 such establishments in the Toronto area, and a number of others in other cities and towns across the province. Their principal business is the supply of food, beverages, or accommodation to the public. It is here that they make their profit. Entertainment is an ancillary concern, which is provided solely to attract or hold customers, and is scheduled to correspond with the anticipated customer density (i.e. during lunch, dinner, or evening periods). In any particular establishment, dancers may be only one component of an entertainment package which may also included "disco", rock or country musicians, mud wrestling, or other forms of entertainment.

5Because the hotel or tavern's concern is customer drawing power, the establishment typically fixes the number, time and length of the dancers' "shows". These are arranged to correspond with the number of customers likely to be present, or are co-ordinated with the other forms of entertainment which may be provided. The number of dancers hired depends upon the size and character of the establishment, its hours, and the number of beverage rooms given over to this form of entertainment. Usually, there will be at least two dancers employed at any one time, so that their shows can be alternated and the continuity of the entertainment maintained.

6The relationship with any particular dancer is entirely transitory. Usually, a dancer will work at a particular establishment for no more than one week. While there was some suggestion that dancers might subsequently be re-employed some months later, the preponderance of the evidence suggests that this is very unlikely. Mona Pierson had been in the business for two years and had never worked for the Algonquin before. Debra Finkle, who has been a dancer on and off' for six years, worked for the Carousel for a single week in the summer of 1980, and recalled working there before on only one occasion, two or three years ago. Lori Lane, whose talent agency had supplied the Algonquin with dancers, testified that only two or three of the many dancers she had sent were ever called back for a repeat engagement.

7Each of the dancers who gave evidence was totally dependent on his/her trade for earning a living, but neither Mona Pierson, nor Debra Finkle, nor Marguerite Mowatt, can be considered economically dependent upon the Algonquin, Carousel, or Waverley respectively. In each case, (depending upon the number of weeks in the year which they chose to work), the proportion of their income attributable to the respondents was no more than five per cent.

8The Transitory nature of the work relationship is related to the number of sources of work "on the circuit", and the desire of each hotel or tavern to please their clientele by providing new faces every week. Many of the hotels have a regular core clientele who, it was suggested, would become bored if the same act was constantly repeated. The character of the dancing being what it is, the audience apparently demands a regular change of performers.

9The transient nature of the work relationships also influences the quality of the evidence before the Board. For each respondent (except the Colonial), we have the direct evidence of only one witness, who worked at the establishment for only one week and had little regular contact with either the management or the other employees. In the circumstances, incidents which might support an inference of employment status may simply not have occurred.

10Work opportunities or "bookings" arise on a weekly basis at the various hotels and taverns "on the circuit". Dancers move from place to place to take advantage of these work opportunities. They are generally paid a set sum per show, with the average in the Toronto area being approximately $12.00 for each fifteen minute show. Typically, a dancer would perform five fifteen minute shows per day for six days on either an "afternoon" or "evening" shift; however, there was considerable variation in this regard. The rate paid by establishments on the circuit ranges from $10.00 to $15.00 per show and so called "feature performers" (i.e. those who have won beauty contests, or appeared in movies or magazines) may get somewhat more. Dancers who are exceptionally good or prepared to give more "risque" performances may also be paid more. Similarly, there may be considerable variation in the required number of shows and the time frame in which they must be presented. At the Waverley, Marguerite Mowatt was paid $250.00 for doing four shows per day for six days in the 4:00 P.M. to 8:00 P.M. time slot. This, she said, was considerably less than the standard number of shows or rate. Usually, she would make $300.000 to $400.00 in any week in which she worked. Mona Pierson was scheduled by the Algonquin to perform five shows per day for six days between 12.00 P.M. and 7:00P.M. at $12.00 per show. Debra Finkle started at the Carousel on a Tuesday, yet still made $500.00 that week because she performed eight shows over a twelve hour period, Tuesday to Saturday, at $12.50 per show. Rachel Berchtold, the "house dancer" at the Colonial, performed a varying number of shows six days a week in the 12:00 to 6:30P.M. time slot at between$ 14.00 and $15.00 per show.

11There are fewer establishments which have male dancers but there is much more variation in the rate which they are paid. The general evidence of the industry practice suggests that the rates may be as high as $100.00 per show (although the shows are fewer and considerably longer); however, Randy Embro, the only male dancer who gave evidence, testified that at the Colonial, he was paid $50.00 per show and that this was his usual rate. Embro would usually do two to three shows at any establishment at which he was working. He had appeared a number of times at the Colonial and expected to do so again. The frequency of his reappearance appears to be related to his personal relationship with the proprietors, and the smaller number of male dancers available to do such work.

12The dancers are paid in cash or by cheques which are immediately cashed on the premises. There are no deductions for Income Tax, Workman's Compensation, Canada Pension Plan, or Unemployment Insurance. There are no benefits provided, except that for out-of-town engagements it is usual to provide the entertainer with free hotel accommodation. There are no written contracts. The hotels keep no personnel records or employment documents. None of the witnesses had received T-4 forms or income tax statements. The establishment may not even record the name, address or phone number of the dancers and may frequently only have the stage name. (This may not be the case for out-of-town bookings where, as at the Carousel, the dancers may be required to produce identification and register as would any other hotel guest.) Indeed, the cheques by which they are paid, may be in the entertainer's stage name, but since they are cashed on the spot, identification is not a problem. Mary Johnson, a representative of the applicant and a former burlesque entertainer, "signed in" at the Algonquin and was paid in the name of Diane Michaels. It is apparent that the identity of the entertainers is of little concern to the hotel so long as they appear on time, do their shows, and please the audience.

13Many of the dancers get a significant proportion of their work through agents, although again the proportion varies from individual to individual. Debra Finkle testified that she got ninety per cent of her work through agents and was associated with a number of different ones; however, her engagement at the Carousel was obtained by a direct approach to the management. Finkle indicated that most clubs would accept dancers on this direct approach basis, and if one applied in advance, one could obtain a booking for the following week. Mona Pierson also used a variety of agents, but she indicated that she obtained about forty per cent of her bookings by her own initiative. Her booking at the Algonquin was obtained through Bill Duddy Enterprises. Usually she would call a particular agent and "pick and choose" from among the bookings he/she had available. If Ms. Pierson didn't like the choice, she would call another agent. Each agent would outline the characteristics of the booking, including number of shows, price, conditions and geographic proximity, and Ms. Pierson would choose the one she wanted. If the club where she wanted to work had an agent she would go through the agent. If the club had no agent or would arrange bookings without one, Ms. Pierson would call the club directly, appear in person or get others to recommend her. Some clubs considered desirable were booked well in advance, and it might be necessary to wait before one could appear there. Just as she could call the agents, agents with whom she was, or had been associated, would call her to outline their available bookings.

14Randy Embro, the male dancer working at the Colonial at the time this application was made, initially got seventy-five per cent of his work on his own and only twenty-five per cent through an agent; but in more recent times, he indicated that the division was about fifty - fifty. Again, the proportion may be influenced by the smaller number of clubs using male dancers, and the ascendancy of an agency known as Indecent Productions (run by one Bill Indecent, himself a male dancer), which has recently become popular with the clubs. Marguerite Mowatt appears to have been associated with only one agent. She obtained her booking at the Waverley through J.R. Productions. Like Pierson, she would usually call her agent and choose from the available bookings, the one most suitable for her. Rachel Berchtold, the house dancer at the Colonial, got her position through her own initiative after an audition and successful performances. She testified that a more experienced dancer has less need of an agent. Most of the witnesses had a low opinion of the value of agents — even though they usually had used a number of them.

15The role of the agent is that of a broker or middle-man whose function is to match supply and demand. Only one agent, Lori Lane, gave evidence. Her agency handles various kinds of performers, including clowns, MC's and other forms of entertainment besides exotic dancers. The evidence does not disclose whether the other agencies mentioned were of this general nature, or whether they only specialized in exotic dancers; however, insofar as the relationship between the agencies, the hotels, and the dancers is concerned, the general outlines of Lori Lane's evidence were confirmed by all of the other witnesses. The variation among the agencies, as among the dancers, appears to be a matter of degree rather than kind.

16An agent will generally have a continuing relationship with a number of hotels which, in turn, may change agents from time to time, or use more than one agent. The agents relieve the hotel of the burden of arranging a large number of casual engagements; and they relieve the dancers of the burden of soliciting work on a personal basis at a large number of geographically dispersed establishments. A typical agent may have as many as forty accounts — that is establishments which he/she undertakes to supply with dancers on an "as needed" basis. Likewise, in order to supply the hotel's requirements, the agent will have a list of dancers who are associated with the agency. This arrangement helps explain why the entertainers will often be associated with more than one agent at the same time. In order to maximize access to work opportunities, it is necessary to maintain a relationship with a number of agents. In order to obtain work at a particular establishment, it may be necessary to obtain the booking through the agent who acts for that hotel.

17It is difficult to determine categorilly whether the agent is "the agent" for the hotel or the dancer. The evidence suggests both, but on balance the agent's connection with the hotel is much stronger. It is the hotel, not the entertainer which negotiates and pays the agent's commission.

18The booking commission charged by the agents appears to vary from ten to twenty per cent of the dancer's fee. Debra Finkle testified that ten per cent was the current "going rate". Marguerite Mowatt testified that it was between fifteen and twenty per cent. Both estimates may be unreliable. The dancers do not pay the agents themselves, and thus have no direct way of knowing the details of the agent's relationship with the various hotels or clubs. Agents are paid by the hotels at the end of each month on the basis of the number of dancers supplied and shows performed in that period.

19Lori Lane's evidence indicated a considerable degree of entrepreneurial initiative on her part. She solicits business from the various clubs, advertises in the yellow pages, and tries to maintain the quality of the talent sent of each client. At the same time, she tries to get the best jobs and prices for the dancers, and attempts to satisfy their preferences with respect to establishment, shifts, or geographic location. She maintains a card index listing this and other personal information. Lori Lane's business depends upon her ability to obtain bookings, and, in order to do so, she tried to maintain a good relationship with both hotels and dancers.

20Lori Lane's evidence respecting her efforts to maintain "quality" is of particular interest for the light it sheds on the degree of talent, artistry, or professional skill required by the individuals she provides, and the degree of which that skill is recognized and rewarded by "the market". In her submission, the dancer's age, appearance, and physique were as important as their dancing skills, experience of professional training. An attractive young dancer with little experience may command the same rate as a more experienced one. This is not to say that the dancers are a homogenous group of totally unskilled individuals. Clearly some are more attractive or talented than others, and this gives them some additional leverage in securing bookings. It is simply that individual hotels may not be particularly sensitive to these considerations, so long as someone minimally acceptable to their clientele appears and provides entertainment. It is the result — entertaining the audience — that the hotel is interested in, not who does it, or how it is done. Except in instances where a dancer solicits work directly, the hotels rely upon the agents to ensure that the entertainers will be able to perform satisfactorily. And as in other parts of the entertainment industry, physical appearance is an important asset.

21Lori Lane's evidence also suggest that she may have been more active as an intermediary between the dancer and the club than some of the other agents mentioned in the evidence. She testified that she becomes actively involved in attempting to resolve any friction or dispute which might arise between the dancer and the club. (It was a common complaint that the agents were generally unconcerned about these matters and once they had arranged a booking, had little interest in the problems which a dancer might encounter.) But the situation clearly varies from agent to agent. Mona Pierson testified that she would contact her agent to resolve any problem which might arise or if she were sick or needed time off and required a replacement. Her complaints about a stage in need of repair for example, were resolved through the intervention of an agent. However, Debra Finkle (who was listed with Lori Lane at the time of this application), had a low opinion of the value of agents, and testified that she had had to find her own replacements, that the agents did not mediate disputes, and that they provided little "protection" for the dancers.

22The mechanics of the booking process were relatively straight forward and were not subject to too much variation. The entertainer would typically call one or more agents to ascertain the range of bookings available for the following week or weeks in which he/she wished to work. The agents would then review the information concerning the available bookings including: location, nature and attractiveness of the establishment, facilities provided, general "set up", number of shows, time slot and price. Marguerite Mowatt was interested in working in the evening, and would choose from the available evening bookings. The dancers were all free to accept or reject any of the bookings offered. Mona Pierson turned down one of five. However, while a dancer can refuse to accept a job on the terms offered (and from a practical point of view, this depends upon their economic circumstances and financial need) there is not much negotiation on the contract price. The price offered by various hotels may vary but the hotels budget a certain amount for dancers to fill prescribed time slots, and were unwilling to deviate much from that price so long as there were persons available and willing to do the work. Debra Finkle was able to negotiate an additional $0.50 per show at the Carousel, and testified that she sometimes could negotiate a $50.00 bonus at the end of the week; but in general, the dancers are required to accept or reject the booking at the specified price and there is little room for variation. Requesting the agents to solicit higher prices is simply unrealistic. In practice, it merely means narrowing the work opportunities to those establishments which, for whatever reason, have decided to pay in the upper portion of the price range. The dancers may enhance their income by working at two places at once (in different time slots or shifts); but, while there is no restriction imposed by the clubs in this regard, the physical demands make it untenable as a regular practice. There is some indication in the evidence that a continued refusal to accept bookings or persistent inadequate performance may prejudice a dancer's ability to work, but none of the dancers who gave evidence had ever been blacklisted and even if such practice were established, the fact that agents were unwilling to refer unsatisfactory performers has little bearing on their employment status. Except in exceptional circumstances, there is considerable discretion to accept or refuse a particular booking.

23Because of the mechanics of the booking system, the hotels do not personally select their complement of entertainers. Their concern is that a reliable person will appear and perform in the specified time slots, and they will not have any direct input into the selection of the individuals who actually appear. Furthermore, once allocated to a particular establishment, an entertainer can readily arrange to have one or more performances performed by a substitute. While this may have to be approved in advance by the hotel, there is usually no problem as long as the replacement is reliable. Likewise, if a dancer is sick, or for any reason is unable to appear at the appointed time, she or the agent simply arranges for another person to fill in. If she wants time off, she advises the agent(s) that she will be unavailable for that period. As Mona Pierson put it (and Margaret Mowatt substantially confirmed) she arranges the bookings to suit herself. In summary then, it is clear that the dancers are entirely free to work when they wish and have considerable latitude (within the confines of the market) as to where.

24The clubs supply the stage, lighting, and equipment for playing music, and prescribe the number of shows, show length and shift. A dancer accepts an engagement on these terms. The dancer supplies his/ her own labour and skill, together with any props or costume which might be required. The choreography, movements, arrangement, choice of music, and manner of performing are solely the creation of the dancer. The dancer supplies the tapes for her particular act or routine. The hotel plays them. There is little ongoing supervision or control, of (or even much interest in), the content of the performance, so long as the entertainer is on time. As Mona Pierson put it, her responsibility at the Algonquin was to "show up on time, do good shows and not bother the bartender."

25Ms. Pierson was quite firm that she regarded herself as an independent or freelance professional, and would resist any efforts on the part of the club to interfere with her performance. She maintained that she would "flatly refuse" to accept any interference because it was "her show", her choreography, and her responsibility. There is no reason to disbelieve her, or ignore her own description of her position. The Algonquin made no such attempt. Debra Finkle testified that at the Carousel too, her primary responsibility was to appear and do her shows. There was no ongoing supervision, nor was it specified what was expected of her — other than a request that she end her act with total nudity. This request was rejected but that did not lead to her termination. There were no other suggestions concerning the form or content of her act. She supplied her own costumes to blend with her dance routines, for; she said "I'm not a waitress". At the Waverley, Marguerite Mowatt also did her shows without direction and told the Board that she had never had any complaints about the manner in which she did her work. Even Rachel Berchtold, the house dancer at the Colonial, (from April to at least October 1980) has considerable independence in the way in which she performs. The manageress at the Colonial prefers entertainers with a certain image (curly hair and boots apparently) but Ms. Berchtold's compliance with these requirements was only halfhearted —yet, she was not terminated. She did indicate however, that once or twice a week, she would be asked to do a particular piece of music, or occasionally avoid a particular piece of music, or a particular song. Apart from that, she had complete control over her act — subject only to the club's overriding authority to terminate any act which it did not like. It appears that the hotel's right to terminate an unsatisfactory act is entirely unfettered — although none of the alleged employees herein had ever been terminated by any of these respondents.

26The right to discipline or discharge his employees is an important aspect of employer control. In an industrial context, it is quite common for an employer to employ "corrective discipline" as a means of ensuring compliance with his performance standards, or ultimately to discharge employees whose performance is incompatible with a continued employment relationship. Each of the witnesses was asked whether he/she had been "disciplined" or "discharged"; but they had some difficulty with the concept. When the dancers are only on the premises for a week and are entirely free between shows, it is unlikely that these overt manifestations of employer control would arise very often. The hotel is unlikely to respond to anything other than the most flagrant forms of misbehavior, or entirely inadequate performance, and there were no such instances in the evidence in these cases.

27Mona Pierson testified that she had never been disciplined or fired in her two years as a dancer, and she could not recall ever seeing anyone else being disciplined — although in 1979, she had "quit" rather than work in a hotel where another dancer was engaging in obscene performances. Rachel Berchtold, Marguerite Mowatt and Debra Finkle, had not been fired either — although again, there were instances where they had refused to continue to work in a particular situation. Debra Finkle left the Spruce Villa because she was unwilling to perform the obscene acts which the management demanded, and she replaced a dancer who was terminated by the Carousel. However, none of the witnesses had ever been overtly disciplined by any of the respondents herein. There was some friction between Finkle and the manageress at the Carousel where Finkle had been told to "tow the line" and, on one occasion, informed that following her show, she should not have been sitting drinking with her friends in what the manageress considered to be improper dress. Of course, the same rule might well apply to a "self-employed" entertainer remaining on the premises for purposes other than her performances.

28There was also some suggestion in the evidence that it was common practice to "fine" the dancers or "dock their pay" if they missed a show or did not perform a show of the required length. This was the purported practice of the Carousel, and the dancers did expect to be reprimanded if they were late or missed a show; however, this never happened to Pierson, Mowatt, Finkle or Embro, and certainly did not happen with any of these respondents. Even if it had however, it would not be particularly significant. The dancers contract to perform a set number of shows, for a prescribed length of time, at a set fee, and it would not be surprising if a hotel refused to pay for missed performances or performances less than the required length. An independent contractor, no less than an employee, can expect some response if he does not adhere to his part of the bargain.

29Despite the absence of direct supervision or control, the dancers usually work in accordance with a generally understood set of "house rules", even if these rules are not formally posted. The dancers must maintain their schedules with respect to number, time, and length of their performances, and they are not expected to put unreasonable demands upon the bartenders or other employees who run the light or tape equipment. Liquor must be used in moderation. Dressing rooms should be kept neat and should not be frequented by unauthorized personnel. Dancers are forbidden to touch the audience or conduct themselves in such a way as will generate problems among the customers or with the obscenity laws. The dancers are free to do as they wish between shows, but they must maintain some standard of decorum.

30The situation at the Waverley and Algonquin is quite similar. There is almost no evidence of direct employer supervision or control. There is seldom even much communication with the management of the establishment. As at the other hotels, the dancers arrive a few minutes before their first show to familiarize themselves with the "set-up" and schedule, and are free to do as they like between shows. The only regular or necessary contact is with the bartender or "D.J." who runs the lights and music. There is little contact with other hotel employees, whose duties, and terms of employment are much different. At the Carousel Inn, there is slightly more evidence of interaction between Debra Finkle and the manageress, but a close reading of the evidence suggests that this may be more indicative of the personalities of the two individuals (and the fact that Finkle was residing on the premises throughout the week in question) than of the character of the legal relationship between them. The only relationship which stood out as somewhat different was that of Rachel Berchtold, one of the two "house dancers" at the Colonial.

31Ms. Berchtold had been working at the Colonial for a number of months prior to the application for certification and, in this respect, her relationship was much more stable than that of any of other dancers who gave evidence, or the other dancers employed by the

Colonial on the usual short term basis. Ms. Berchtold explained that the transient dancers provide the variety and the house dancer ensures that there will be a core of good acts or "proven crowd pleasers". She obtained the engagement on her own initiative and by demonstrating this ability. There was no difference in salary, number of shows required, or scheduling, and the dancers are relatively free to arrange their own rotation. As usual, payment is on a "per show" basis and there is no premium or overtime pay for work on holidays. There is the same absence of direct control over show content — other than the usual requirement that there must be some variety and the management's preferred image to which we have already referred. On the other hand, Ms. Berchtold did provide her name, address, telephone number and social insurance number, was scheduled as to have every fourth week off, (a schedule not adhered to it seems) and seemed to be assured relatively steady employment. There is still considerable flexibility even on the part of a house dancer. Ms. Berchtold has called in sick (two or three times in the period of April to August 1980) and on each occasion, she arranged for a substitute to appear on her behalf. However, there is no doubt where real economic power resides. During the period that Ms. Berchtold has been with the Colonial, the club has unilaterally reduced, then later raised the price for shows and also altered the number of shows required of each dancer. These alterations were apparently only applied to the house dancers. Ms. Berchtold has also had her pay reduced when she was late so that the entire list of scheduled shows could not be completed. In each case, the decision was made unilaterally and presented to the dancer on a take it or leave it basis.

32Much of the union's evidence has no direct application to these respondents, and was tendered solely to acquaint the Board with the nature of the tavern industry, and the problems which dancers occasionally encounter. The Board accepted this evidence on the basis that it might clarify the general economic context in which the dancers earn their living, and thus assist the Board in determining their status. We wish to make it clear however, that this evidence cannot be applied automatically to these respondents. We do not think we are entitled to equate them with other taverns where the situation may well be different, and, insofar as these establishments are concerned, there was no evidence of the serious abuses of which the applicant complained.

33The picture painted by the applicant was not a pleasant one. Counsel submitted there were instances where a dancer had been fired because she refused to perform obscene acts or submit to an owner's working conditions, or complained about the quality of the stage facilities, or adequacy of dressing rooms. The clubs, it was contended, regarded the dancers simply as "bodies", largely interchangeable, and given little consideration or respect. Owners could refuse to employ, or terminate a dancer, simply because they were dissatisfied with a dancer's physical attributes. Yet the dancers had no recourse or no protection.

34These concerns were sincerely expressed, and the Board has some sympathy for them; but the lack of consideration for the individual dancer is largely related to the fact that she is an entirely transient (and virtually anonymous) presence in a business in which entertainment is not even the principal concern. Much of the shabbiness of the surroundings is related to the calibre of the establishments where the dancers are likely to appear. Marginal members of a highly competitive industry simply do not have first class facilities for the dancers, their permanent employees, or even their clientele. And, given the nature of the performances and bookings, it is not surprising that the dancers occasionally encounter problems. Mona Pierson described her functions as "choreographing certain moves to certain songs"; but Marguerite Mowatt's evidence was more direct and probably more accurate. She testified that her function was (by insinuation and suggestion and within the limits of the obscenity laws) to "get the audience involved, and tease the living daylights out of them". The dancers market their sexuality, not just their dancing skills, and in the circumstances, some verbal abuse, however distasteful, is probably inevitable, and "comes with the job territory". And paradoxically, the social milieu which condones this attitude to women also provides the primary market for the dancer's services. A shift to either more traditional social norms, or more progressive attitudes to women, could well threaten the basis for the dancers' livelihood. Finally, it must be noted that despite the problems which they may encounter, the dancers have much more freedom, and their income is higher, than other untrained individuals employed in more traditional occupations in the industry.

II

35There are numerous situations at common law, or under various statutes, where it is difficult to say whether a particular individual is an "employee" or a self-employed "independent contractor". This case presents just such a situation, and there is no shorthand formula or magic phrase that can be applied to find the answer. What is important is that the total factual context be considered in light of the established principles. The parties were virtually ad idem as to the general principles to be considered. The real issue was how those principles should be elaborated and applied in the unique circumstances of this case.

36In seeking the answer, in law, to the question: "is this person an employee or self-employed", the courts have traditionally focused upon the degree of control exercised by the alleged master over the manner in which the alleged servant performed his work. At common law, the issue arose most frequently in determining vicarious liability in the law of tort, and in that context, it made sense to affix an employer with liability, only if he had control of the actions of the servant which gave rise to injury. Control may be much less significant when it is used not to establish the employer's liability but to determine whether a contract of service exists in the first place. (See Denham v. Midland Employers' Mutual Assurance Ltd., [1955] 2 Q.B. 437) Nevertheless this test is still much referred to, and was elaborated by Mac Kenna, J. in Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance, [1968] 2 Q.B. 497, as follows:

"Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted... If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication."

37The control test assumes that the employer is both manager and technical expert, and reflects a less developed stage of society in which the employer could be expected to be superior in skill and knowledge. It may still be a useful test in dealing with simple relationships; but it is entirely unrealistic to suggest that, the pilot of an aeroplane, or any number of "professional" employees, are under the direct or immediate control of their employer. An uncritical application of the control test simply ignores the degree to which skilled or professional employees operate autonomously. The presence of direct control is significant, but its absence may be less so.

38A second, and somewhat more sophisticated approach, (and one which has been used by this Board in a number of cases) is the so-called "fourfold test" referred to by Lord Wright in Montreal v. Montreal Locomotive Works Limited, 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161 (P.C.) At page 169, his Lordship comments:

"In earlier cases a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortuous liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive. Thus the master of a chartered vessel is generally the employee of the shipowner though the charterer can direct the employment of the vessel. Again the law often limits the employer's right to interfere with the employee's conduct, as also do trade union regulations. In many cases the question can only be settled by examining the whole of the various elements which constitute the relationship between the parties. In this way it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words, by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior."

This test is helpful in many situations; but it is not without its faults. As the Board noted in Livingston Transportation Limited, [1972] OLRB Rep. May 488:

"While the fourfold test is helpful in most situations, and notwithstanding that the Board has indicated that all four tests must be satisfied to determine whether a person is an independent contractor, Cima Limited [1963] OLRB Rep May 100 at 102; Nicks Haulage Limited, [1970] OLRB Rep. Nov. 871, there are cases where its application lends itself to artificiality. In many cases the evidence weighs heavily in perhaps one or two of the categories but does not weigh heavily in either the third or fourth. In some situations there is strong evidence in one or more categories with no evidence in another category. How then is one to apply the test where the weight of the evidence in two categories suggests one type of relationship, whereas the weight in the other two categories suggests another form of relationship?"

39A third approach suggested by the latter part of Lord Wright's decision in Montreal Locomotive, and later developed by Denning L.J. in a series of cases, is the so-called "organization" or "integration" test, in which the question becomes: "does the alleged servant form part of the alleged master's organization". In Stephenson, Jordon and Harrison Limited v. MacDonald and Evans, [1952] 1 T.L.R. 101, Denning, L.J. put it this way:

"Under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it."

In Bank voor Handel en Scheepvaart N. V. v. Slatford, [1953] 1 Q.B. 248, he remarked (at 295):

"The test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organization".

40A final approach, — much relied upon by the applicant in this case, — is the so-called "statutory purpose test". This approach involves the (fairly obvious) proposition that in applying the Act, and in selecting and weighing the factors which point towards one interpretation or the other, the Board should take into account the concerns underlying the legislation. As the United States Supreme Court stated in N.L.R.B. v. Hearst Publications Inc., (1944), 322 U.S. 111:

"The mischief at which the Act is aimed and the remedies it offers are not confined exclusively to "employees" within the traditional legal distinctions separating them from "independent contractors". Myriad forms of service relationship, with infinite and subtle variations in the terms of employment, blanket the nation's economy. Some are within the Act, others beyond its coverage. Large numbers will fall clearly on one side or on the other, by whatever test may be applied. But intermediate there will be many, the incidents of whose employment partake in part of the one group, in part of the other, in varying proportions of weight. And consequently the legal pendulum, for purposes of applying the statute, may swing one way or the other depending upon the weight of this balance and its relation to the special purpose at hand.

Unless the common-law tests are to be imported and made exclusively controlling, without regard to the statute's purposes, it cannot be irrelevant that the particular workers in these cases are subject, as a matter of economic fact, to the evils the statute was designed to eradicate and that the remedies it affords are appropriate for preventing them or curing their harmful effects in the special situation. Interruption of commerce through strikes and unrest may stem as well from labor disputes between some who, for other purposes, are "employees" and their employers. Inequality of bargaining power in controversies over wages, hours and working conditions may as well characterize the status of the one group as of the other. The former, when acting alone, may' be as "helpless in dealing with an employer' as "dependent... on his daily wage" and as "unable to leave the employ and to resist arbitrary and unfair treatment" as the latter... And for each, collective bargaining may be appropriate and effective for the "friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions." In short, when the particular situation of employment combines these characteristics, so that the economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation, those characteristics may outweigh technical legal classification for purposes unrelated to the statute's objectives and bring the relation within its protections."

41While it is useful for analytical purposes to set out the general approaches which the Board has employed in the past, it must be remembered that each of these "tests" is merely a guideline. No approach will be controlling in a particular case, nor will the various formulations necessarily give an unequivocal answer. Despite the undoubted authority of the cases in which they were enunciated, the value of these "tests" lies solely in their utility, in assisting the Board to reach a conclusion which is fair to both the statute, and the context under review. Usually the Board's own jurisprudence is equally is useful — and herein lies a problem.

42Trade unions have been active in the entertainment industry for many years, but we were unable to find any exact parallel with the present case — perhaps because the transitory nature of the work relationships, and the multiplicity of employers has heretofore prevented the development of collective bargaining. In consequence, (and in contrast for example, with the situation of owner/ operators in the aggregate industry) the Board does not have the advantage of being able to compare the instant case with a settled body of its own jurisprudence arising out of the same industry. But this does not mean that the problem must be analyzed in a legal vacuum. Some assistance can be found in the common law principles to which we have already referred. In addition, we were able to find a number of cases in other jurisdictions, or under other statutes which explore the legal attributes of "employment" in the entertainment industry. Of course, decisions made in a different statutory or legal context must be used with some caution; but the issue is not so unique, nor is the law so rigidly compartmentalized, that principles used to determine employment status in one situation are entirely inapplicable in another. Between the two contradictory poles of "employee" and "independent contractor", there is always a hazy spectrum of intermediate cases, and it may illuminate the issue before the Board in this case, if we sketch in briefly how, and where, other courts or tribunals have drawn the line. As will become apparent, these decisions are not entirely consistent with each other, but insofar as the present case is concerned, they all point in the same direction.

III

43Broadly speaking, the American cases which resemble the instant case tend to support the position of the respondents either because they take a narrow view of the control test and stress the independent creative talent of the artist, or because they rely on factors which are not present here. Several of these cases are decisions of the National Labour Relations Board (NLRB) arising in a collective bargaining context. The others are court decisions involving social security levies, in which the liability for tax depended upon the employment status of the subject individuals. It might be noted however that, in the case of the U.S. social security decisions, the relevant legislation merely codifies the common law tests along lines similar to Montreal Locomotive, supra.

44In America Guild of Musical Artists (National Symphony Orchestra), (1966), 61 LRRM 1426, the NLRB was called upon to determine the employee status of two "guest" ballet dancers who had contracted to perform in the annual Christmas ballet jointly sponsored by the National Symphony Orchestra and the Washington School of Ballet. One of the dancers was the prima ballerina of the Palm Beach Ballet. The other was a choreographer who agreed to appear as a dancer for a fixed fee over and above her regular salary. Both dancers supplied their own costumes and make-up. No deductions were made in respect of income tax, social security levies or workmen's compensation insurance. The NLRB, noting that the alleged employer retained little, if any, control over the manner in which the guest dancers performed their roles, found them to be self-employed rather than casual employees.

45A similar result was reached in Century Broadcasting Corporation, (1972), 81 LRRM 1011, which involved "freelance" announcers hired to do pretaped commercials or announcements interspersed in the company's programme of recorded music. The company sought to maintain a variety of voices, and to this end, kept a list of announcers who would be invited to participate on a rotating basis. Fees were negotiated on a "per session" basis, and the announcers were entirely free to accept or reject the company's offer depending upon their outstanding commitments, (or, sometimes, their association with a competitor's product). In view of the lack of supervision or review of the announcers' work, the announcers' complete freedom to accept or reject assignments offered or to select substitute announcers from the employer's list, the broad latitude in scheduling taping sessions, and the absence of any restriction as to their outside work, the NLRB found that the announcers were self-employed and dismissed the union's representation application.

46In Strand Art Theatre, (1970), 74 LRRM 1589, the NLRB had before it an unfair labour practice complaint filed by two entertainers who had allegedly been discharged for their trade union activities. The entertainers (billed as "Budddy O' Day", a comic, and "Tootsie Roll", an exotic dancer) had been employed by the theatre for almost two years. Again, the Board found that the entertainers were independent contractors and stressed their individual creativity and the absence of control:

"Mr. Tackett created the acts for himself and his wife. He had many acts and changed them each week. He produced scenes to fit the size and cast of the theatre and requested props, cues, and lights from the Operator for the scenes. The Tacketts supplied their own costumes, makeup, and some props. The acts were part of the entertainment, which included others, in a stage show and motion pictures. The Tacketts performed several times a day, and Mr. Tackett sometimes acted as the master of ceremonies.

Mr. Tackett testified that how the act was to be performed was up to him. There is no evidence that he or his wife ever received directions on how to perform the act from Respondent's officials. Bertram Ross, who was in charge of the theatre in the absence of his manager father, gave instruction as to the length of a number, but not its content, and as to suitability of costumes. He also determined the number of scenes and whether Mr. Tackett would act as master of ceremonies, but this seldom varied.

Respondent contends that the Tacketts were independent contractors in their relationship with Respondent. We agree. Of all the factors enumerated by the Trial Examiner, the most important is the right to control the manner and means of performing the work. In our opinion, the following factors establish that the Tacketts had the right to control the manner and means of performing their work. Mr. Tackett alone wrote the material for the scenes performed by him, his wife and supporting case. He adapted the scenes to stage size and to the personnel in the stage show. The manner of entertaining the audience was the sole responsibility of the Tacketts. The only direction they ever received related to length and number of scenes and to the scantiness of a costume as measured by local regulations. Apart from supplying the theatre stage, music and lights, Respondent played no part in the Tackett's performance.”

Despite the longevity of the relationship the contention that the entertainers were "employees" of the theatre was rejected.

47In Strand Art Theatre, the Board put considerable reliance upon Radio City Music Hall Corporation v. the United States, (1942), 50 F. Supp. 329; (affirmed 135 F. 2d 715) — a decision of the second circuit (New York) Court of Appeals involving social security levies. There, the individuals in question were "special artists" hired to fill in the eight minute "open spots" in the company's stage show which were not covered by its own orchestra, chorus, or house dancers. These "special acts" included performing animals, acrobats, comedy skits, singers, dancers, jugglers, ventriloquists, and the like; and, as in the present case, the relationships were entirely transitory. There were one hundred and seventeen special artists during the taxation year. Each was engaged on a weekly basis, and paid differing amounts in accordance with Radio City's assessment of their worth. Their fees were frequently much greater than the amount paid to the "house entertainers", and, of course, Radio City had no responsibility for their training. There was, however, a considerable degree of co-ordination and control over the conduct of the various acts:

"There can be no question here that the result to be obtained was the amusement of the public. Of that the plaintiff had full control. It furnished the place, the stage, the dressing rooms, the music, the lighting, and all of the instrumental music. Necessarily, to present a connected show, it had and exercised the right to specify who should take part in it, when he, she or they should perform, and how long the act would be, what color scheme should be used, a harmonious costume on the part of all participants, rehearsals to assure a connected and uninterrupted performance and the avoidance of embarrassing mishaps, a use of language or pantomime in no way offensive, the position on the stage and the manner of entrance and exit, not only for the convenience of the actor but also that the act might properly be seen and heard, and the substitution, on occasions, of music to fit in with the scheme of the entire stage show. These undoubtedly were requisites in order to make the whole performance successful and attractive to those who might pay to see and hear it."

The trial judge, focusing on the artist's talent or acquired skills and the absence of control, found that the entertainers were self-employed:

"Contrasted to the foregoing, (house entertainers) the rights of the special performers were not governed by many of the rules applicable to the regular employees. The plaintiff had no control over the method or means of the entertainment possibility of the act; that was the invention and development of the special performer, acquired by many weeks and years of steady application, thought and practice. That was their creation, whereas the acts of the regular employees were the creation and development of the plaintiff. The plaintiff did not and could not tell a juggler how to juggle, an acrobat how to tumble, a magician how to trick or mystify the eye, the special dancer how to dance or what steps to produce. The voice of the soloist was not that over which the plaintiff had any control. It was a natural acquisition, developed by the individual's study and training, in which the plaintiff never had any part. Even the monologue or dialogue was that of the artist and was not supplemented by the plaintiff, but was subject to deletion if it offended good taste, or was too long to fit into the time allotted to the act. The performance of the artist depended upon its reputation for entertainment, its popularity, its drawing power; that is what he sold to the plaintiff, and which he also offered to all others of the general public who might desire to purchase it. The artists were generally employed through an agent. Their act was contracted for, and if not continued for the period of the contract, was required to be paid for in full in any event. The particular feature was purchased as any other commodity, and was paid by the plaintiff in the same way and by the same kind of cheque that it used in the purchase of merchandise and in the payment of fees of lawyers and certified public accountants. There was no permanent employment, only occasional and sporadic engagement. The artists in many instances were not even required to rehearse, except as it might be necessary for them to know when they were to go on, where, and at what cite. They had the right, infrequently exercised, to contract for engagement at other places of amusement provided there was no interference. In other words, theirs it was to decide how the act should be done; the plaintiffs, where and when. The artist decided and carried out the means and methods by which the act produced its popularity and amusement value. The plaintiff furnished the place and setting appropriate for the whole performance.”

This conclusion found favour with Hand, J. writing for a unanimous Court of Appeal - although that court focused more on the absence of control than the unique character of the performers' talent, or the training which they had to undertake to develop it. The selection and coordination of the various acts was considered an ordinary part of the theatre business. It did not imply "employer" or "employee" status:

"If Markert had never seen the "act", he ordinarily required an audition". To fit the "act" into the program he would sometimes cut it down and have the actor piece together what remained. Sometimes it was necessary for the actor to put something in the place of what was cut out, but Markert never attempted to say what it should be. He did indeed at times depart from this in the case of music, the actor being compelled to rehearse the new pieces for an hour or two; but that was done only to save the performance fee that would have been charged if the actor's music had been used; or when on occasion he put a song of his own choosing into a singer s repertory. At times he would also reduce or amplify the volume of a singer's voice. The plaintiff furnished the stage, scenery, lighting, orchestral music and attendants; sometimes it supplied a costume.

For one of the acts, the producer directed the staging according to his requirements, fixed the times for the rehearsals, the number of performances in a day, required promptness in attendance, and prescribed the order of the songs and dances. He determined the time at which the "act" should appear on the stage, and sometimes insisted on leaving out parts of the dialogue or other features when he thought them unsuitable for the plaintiff's audience. His effort was to weld the different "acts" together into a harmonious program, but always giving each actor his opportunity to perform without interference. Sometimes he made an "act" part of a play let, and then the actor might be required to mingle with the chorus and put on a costume congruent with the scene and with those of the other actors.

In the case at bar the plaintiff did intervene to some degree; but so does a general building contractor intervene in the work of his subcontractors. He decides how the different parts of the work must be timed, and how they shall be fitted together, if he finds it desirable to cut out this or that from the specifications, he does so. Some such supervision is inherent in any joint undertaking, and does not make the contributing contractors employees. By far the greater part of Markert's intervention in the "acts" was no more than this. It is true, as we have shown that to a very limited extent he went further, but these interventions were trivial in amount and in character; certainly not enough to color the whole relation. If the depositions had constituted the whole evidence upon a trial there would have been no issue to submit to a jury."

48The Radio City decision was distinguished in at least two subsequent cases — but not on grounds which assist the applicant in the present case. In Club Hubba v. U.S., 239 F. Supp. 324, the court was again dealing with social security tax levies — this time in respect of certain Japanese entertainers who performed as a group, supplementing the club's "star performers" (usually strippers or other exotic dancers). These entertainers were brought from Japan to perform under six month renewable contracts, and received room and board, insurance coverage, and health care. They were restricted as to their other employment, and their passports were impounded by the club on arrival. In the circumstances, despite the lack of control over the manner in which they performed, the court found that they were clearly part of the respondent's organization, and there was sufficient control over their general conditions to warrant a finding that they were employees.

49In Ringling Brothers — Barnum and Bailey Combined Shows v. Higgins, (1951), 189 F. 2d 865, the Court of Appeal for the second circuit also had the opportunity to reconsider and distinguish its own earlier decision in Radio City Music Hall. Ringling Brothers involved the employee status of the company's "feature acts" — including aerial trapeze, balancing, high wire, trained rooster, seal, horse, dog, comic, acrobatic and "human cannonball" acts. Again, consideration was given to the control test, but this time there was more concern with the artists' but this time there was more concern with the artists' relationship with the employer, and their total integration into the employer's organization. Some of the entertainers had been in the organization for more than twenty years. The control and co-ordination which had been treated as merely incidental in Radio City Music Hall, were here considered sufficient to render the performers an integral part of the plaintiffs business

— "the circus":

"The sharp issue as to control is carried to us, on appeal, where plaintiff vigorously attacks the findings of the judge. As usual, we have a difference in emphasis. Plaintiff stresses the individuality of each act; defendant and the court below, the power and the practice to weld all together into one distinctive show known and loved by young and old as "the circus". Of course the plaintiff is right in details; it could hardly be expected to direct the manner and means by which a human cannonball should be shot from a gun. That kind of artistry is indeed what it employs its performers for. But it seems to us that in a broader sense the trial judge is right — or so nearly right as not to be reversible on the facts — when he finds an ultimate power of direction and control in the circus management. Thus he rightly says: "The performers were an integral part of plaintiff s business of offering entertainment to the public. They were molded into one integrated show, "the circus". It was not a loose collection of individual acts like a vaudeville show. The individuality of the performers was subordinated to the primary purpose of enhancing the reputation of the plaintiff and of producing one integrated show that would entertain the public. One example of this was the fact that, if a performer appeared in more than one act on the program, he would be given a different name by the circus each time he appeared". And elsewhere he points out the power to suggest changes, or improvements to shorten an act, to order objectionable parts deleted, to supervise the moral conduct of the performers, to require that a certain moral standard be maintained.

Plaintiff relies heavily on Radio City Music Hall Corp. v. United States, 2 Cir., 135 F 2d 715, where we held that the changing weekly acts at Radio City Music Hall were by independent contractors and the Corporation was not subject to this tax. But we think the differences are striking enough to point the moral. Contrast, for example, the 117 different acts there occurring in the single taxable year with the more durable relation disclosed by the contracts or the actual history of Adler and Concello here. It is true that the Radio City director did "fit" his act into the program by cutting it down where necessary, and there was a certain amount of adjustment to get a particular act into an open spot in the program which particularly featured motion pictures. But we are not disposed to reverse the trial judge as to this. Rather we agree that the performances there remained over the weeks a series of vaudeville and like disparate acts; they did not, as here, become "the circus."

[emphasis added]

50A further, very recent NLRB decision — and one which has striking similarities with the case at bar - is American Guild of Variety Artists (AG VA) v. Ibis Enterprises inc. and Sibi Ventures Inc. (Case number Z-RC- 18724 decision of regional director released June 30, 1980, unreported). There the parties were an established entertainers' union affiliated with the AFL-CIO, and a business enterprise which operated a restaurant and nightclub in New York, known as the "Club Ibis". In the Club Ibis was the "El Sultan" room, and in the El Sultan room, Middle Eastern dancing (more commonly known as "belly dancing") was performed every evening to the accompaniment of appropriate music. The dancers regularly performed two shows a night for two or three nights in succession, and were paid in cash, without deductions, on the night of the performance. Rates varied within a fairly narrow range, with slightly more being paid for experienced dancers. In contrast with the present case, there were regular repeat performances, and the skeletal terms of engagement were reduced to a written agreement specifying the number of shows, time frame and fee. Dancers were also somewhat less regimented than in the instant case, but like the entertainers here, they were able to exchange dates, arrange for substitutes, and when they wished to have time off, simply advised that they were no longer available. Club Ibis, of course, provided the stage and dressing rooms, and the dancers chose their own costumes, cosmetics, props, music, and choreography. As in the instant case, the dancers often determined among themselves the order of their appearances on a given night. The only requirement placed upon them by the Club was that they observe common standards of decency. It was held, following Radio City, Strand Art Theatre and American Guild of Musical Artists Supra, that the dancers were self employed independent contractors, and the union's representation application was dismissed.

51The situation of casual entertainers had not been entirely neglected in the English case law. The Radio Music Hall case finds it parallel in Gould v. M.N.I., [1951] 1 All E.R. 368, where the court dealt with unemployment insurance levies payable in respect of a musical hall comedian hired to appear for a week. The facts and the court's decision are accurately summarized in the head note:

"The appellant, a music-hall artist, entered into a written contract with the second respondent to appear in a variety "act" at a theatre for one week. The contract, inter alia, provided that the appellant might be transferred to other theatres of the same management, prohibited his appearance at certain other theatres, specified penalties for non-appearance in accordance with the contract, provided for his acting as deputy at other theatres in as emergency, and contained an undertaking that his performance would not be dangerous. Rules attached to it required him to attend rehearsals at times stipulated by the management, stipulated the times of performance, dealt with illness and provided that, if required, the appellant should submit to medical examination, dealt with the use of improper words and gestures, authorized a fine or cancellation of the agreement if the appellant was in the theatre when intoxicated, empowered prohibition of the whole or part of his performance if it was considered unsuitable or unpleasing, prohibited variation from the words of songs or dialogue previously approved, and required the appellant to produce a new or revert to an old "act" on request.

Held: (i) although the second respondent was empowered under the contract to prohibit an objectionable part of the appellant's performance and to require him to produce a new "act" or revive an old one, those and the other provisions of the contract and rules were necessary for the proper working of the theatre, and the performance of the appellant depended on his skill, personality, and artistry with which the contract gave the second respondent no right to interfere; the contract, therefore, was one for services and not of service; and the appellant was a "self-employed" person within the meaning of the National Insurance Act, 1946, s. l(2)(b), and not an "employed person" within s. 1(2)(a).”

Ormerod, J. applied the control test and concluded that the degree of control was insufficient to warrant a finding of employee status.

52A very different view of the control issue was expressed by four judges of the Scottish Court in Stagecraft Limited v. M.N.I., [1951] S.C. 288. There, the court was again concerned with a social insurance levy under the National insurance (Industrial Injuries) Act which required contributions for "employed persons" employed under a "contract of service" or apprenticeship, but excluded "self-employed" persons. The individual in question was a comedian who contracted with a company of theatrical producers to appear in a production known as "resident Variety". In resident Variety, a company of variety artists is brought together for a season. Each member performs some of his own material, as well as scenes and sketches in which he co-operates with other members of the company. Under the contract, the comedian was bound to play to the best of his ability, the part of parts set down for him in all productions, to comply with rules, directions and instructions of the stage and business manager, and to attend rehearsals. The business manager could discipline those who refused to comply with the stage manager's directions, and efforts were made to ensure that all of the material was in good taste. The producer selected and co-ordinated material tendered by the artists from their own repertoires, decided on special theme weeks, selected artists for the opening chorus, finale and sketches, and decided on the accompanying music. The court stressed the co-ordination and continuity of the show, and contrasted the situation with "the ordinary musical hall show" where "a separate bill is provided each week by transient artists who do their turns twice nightly for the week and have little or no relation to each other." The question of control was dealt with as follows:

"The crux of the matter lies in the extent of the control exercised by the management. Broadly speaking, there can be no doubt that in some respects an artist is beyond the control of the management. It is his own individuality and personality that makes or mars him as an artiste. However much he be instructed or directed, it is the natural gift which counts. But the fact that the performance of a task depends on a natural gift or on some laboriously acquired accomplishment does not necessarily mean that the performer cannot be a servant. It is only in the most mechanical of operations that anyone can dictate absolutely the mode of performance. The nature of the task is not conclusive. An artisan may be an independent contractor while the most highly skilled technician is a servant. A skilled craftsman may have highly individual gifts and yet be under a contract of service. His value as a servant lies in his individuality and he is frequently employed just because he can exercise specialized skill which the employer does not possess. The employer of such a servant can direct the objective to which the servant's skill is to be addressed but he is powerless to control the manner in which the servant's skill is exercised. it seems to me therefore to be beside the point to argue that an artiste, because he gives a unique individualistic performance which expresses his own personality, cannot be under such control by his employer as to make him a servant, if by his contract he has given to his employer the right to the benefit of his artistic gifts in circumstances which entitle the employer to say, You shall exercise your gifts in this play or this sketch in this theatre and with those collaborators over such and such a length of time, I think that by conceding to his employer such a measure of control he has entered into a contract of service. I do not think that one can ignore that the contract here is for a period of time, that the artiste agrees to play in any of the management's productions and may be transferred to other managements. Moreover, he is to play the parts set down for him. So far as the conditions in the contract are concerned, I do not lay much stress on the one which says that he agrees to comply with all the rules and directions and instructions of the stage manager and business manager. It points to control, no doubt, but some such provisions would be necessary to preserve discipline in the complex life of a theatre whether the contract were one of service or for services. What I find of more significance is the fifth condition, where "the artiste agrees to play the part (or parts) assigned to him (or her) during the whole run of the production, if the management so wishes, and on his (or her) part not to terminate this engagement until the finish of the production;..." This points to a definite contract of employment to serve the management by making his gifts available to the management in ways which the management can dictate over a period of time."

[emphasis added]

Although the court does not say so explicitly, a perusal of its reasons reveals elements of both the "organization test" and a "control test" — the latter being defined more broadly than was the case in Gould v. M.N.I. However, the contract in Stagecraft was much different from the one in the instant case, and the features which moved the court to find employee status are largely absent here.

53The Gould case was reconsidered explicitly in Whittaker v. Minister of Pensions and National insurance, [19661 3 All E.R. 531. There, the claimant was a trapeze artist engaged by a circus on a contract for five weeks at a weekly salary. She was to give her exclusive services to the circus, to give a specified number of performances, to provide her own costumes and apparatus, and to take part in publicity activities as required. In addition, she was to assist at moves and in seating the audience, and, by a special clause, was to undertake full usherette duties. She ordinarily gave two seven minute performances per day and three on Saturdays, but she was also required to appear at all extra performances specified by management, as well as any special events, newsreels or broadcasts which might publicize the circus. On average, less than half her working day was spent on her own act and preparations for it; but because she was required to devote the whole of her working time to the company during the period of her engagement, the rest of her time was occupied by ancillary duties which had nothing to do with her particular skill.

54The court distinguished the Gould case because of the hybrid character of the claimants' duties, — although it was acknowledged, (somewhat equivocally) that:

"had she only been obliged to perform her trapeze act, even if she had also been under various constraints and controls in relation thereto, there would have been grounds for holding her contract to have been one for services".

Of more interest is the degree to which the court minimizes the traditional control test, and emphasizes instead, the degree to which the employee's work is an integral part of the business. After referring to Cassidy v. Ministry of Health, [1951] 2 K.B. 343, and Stephenson, Jordan and Harrison Limited v. MacDonald and Evans, [1952] 1 T.L.R. 101, and noting the inappropriateness of applying the control test to a professional man or a man of some particular skill and experience, the court goes on to say:

"It seems clear, therefore, from the more recent cases that persons possessed of a high degree of professional skill and expertise, such as surgeons and civil engineers, may nevertheless be employed as servants under contracts of service, notwithstanding that their employers can, in the nature of things, exercise extremely little, if any, control over the way in which such skill is used. The test of control is, therefore, not as determinative as used to be thought to be the case, though no doubt it is still of value in that the greater the degree of control exercisable by the employer, the more likely it is that the contract is one of service.

The earlier cases relying heavily on the "control" approach were distinguished because "of later authorities establishing that the degree of control exercisable by the person employing another is of much less importance than was then thought to be the case". The fact that she had to perform extra duties and devote the whole of her working time to the company was considered "markedly alien to the usual position of independent contractors", and the court preferred to find employee status on the basis that the artist had to carry out her contractual duties as an integral part of the employer's business.

55An earlier case which was referred to in Stagecrqft (but not Whittaker or Gould), is Performing Rights Society Limited v. Mitchell and Booker (Palais de danse) Limited, [1924] 1 K. B. 762. There, the defendants ran a dance hall in which a band was engaged, and liability for the band's breach of copyright depended upon whether the musicians could be characterized as "employees" or "independent contractors". The musicians were engaged to work seven hours a day, six days a week, Monday to Saturday, in any of the defendants' operations in London or elsewhere. The contract was for one year and prohibited the musicians from playing elsewhere, or making recordings, without permission. The musicians were required to comply with management's instructions concerning the nature of the music rendered, and the management was empowered to end the engagement, inter alia,: if the musician left the U.K. without permission; if any of them were intoxicated; if they were wilfully careless, inattentive or using improper language; or if they refused or neglected to follow the reasonable instructions of management. Throughout the contract, the word "employed" was freely used. In the circumstances, the court concluded that the musicians were employees.

56Some of these cases are a little difficult to reconcile, but a key factor in Gould and Radio City seems to have been the artist's skill and the transitory nature of the relationship; while in Ringling Bros. or Stagecraft, the court was influenced by the longevity of the relationship with the employing unit, or the apparent integration of the entertainer into the employer's organization. Co-ordination per se, is not given overriding significance. Even self employed entertainers may be subject to house rules or have their acts co-ordinated with others. It is part of the ordinary circumstances under which an entertainer works that the hotel or theatre engaging him will provide the stage, lighting and other accountrements, and will control the length, timing, and even, to some extent, the content of his performance.

57Counsel for the parties in the present case compared the dancers' situation with that of itinerant musicians, who move from engagement to engagement. Unfortunately, despite the existence of a musician's "union", we were unable to find any Canadian cases in which the employee status of musicians was determined in a labour relations context. In the United States, musicians are commonly regarded as employees; but there the NLRB has been heavily influenced by a long history of collective bargaining and the widespread use of a standard form contract which specifically provides that the club is the "employer", and expressly reserves to the employer the "right to control" the musicians' services. While the form of contract has not been the controlling factor in other contexts, the Board has been reluctant to go behind this particular "employment" contract (see for example Reno Musicians Local 368, (1968), 67 LRRM 50; Independent Motion Picture Producers Association, (1959), 44 LRRM 1265; and contrast the situation of composers who accepted assignments to write music for radio and television programmes. In American Broadcasting Company, (1957), 39 LRRM 1143, the Board applied the "right to control" test and determined that these composers were independent contractors.

58Although few casual entertainers join unions, they do pay taxes, and it might be thought that some assistance could be derived from this branch of the law. But the Canadian tax cases are rather difficult to reconcile — although many of them refer to the decision of Rowlatt, J. in Davies v. Braithwaite, [1931] 2 K.B. 628 where the court found that an accomplished actress was self-employed because:

A method of earning a livelihood which does not consist of obtaining a post and staying in it, but consists of a series of engagements . . . cannot be considered an employment but is a mere engagement in the course of exercising a profession."

These remarks are frequently quoted in cases in which independent contractor or "self-employed" status is affirmed; on the other hand, there are numerous cases in which "freelance" musicians are found to be employees. The most that can be said of these tax cases is that the Tax Appeal Board is less likely to find employee status: if the individual's income is derived from a variety of diverse sources; if his engagements are with institutions of varying size and character (rather than "establishment" organizations such as a symphony orchestra or the CBC); if the individual is a vocalist or guest artist rather than a member (albeit for a short term) of an established ensemble; if there is evidence of self-promotion or entrepreneurial activity; and if there is little control exercised by the alleged employer. Thus, in Henrietta Carrick v. M.N.R., 55 DTC 56, an organist playing exclusively at a Montreal restaurant for four years at specified times and subject to a contract providing that "the employer shall at all times have complete control of the services which the employee will render under the specifications of this contract" was found to be an employee of the establishment. And in Number 113 v. M.N.R., 1998 CanLII 31358 (TCC), 53 DTC 308, an actor was employed by a "sponsor" to play such characters as the sponsor might require, in accordance with a contract providing for a weekly salary, restricting the artist's ability to work for competitors, requiring him to render his best services and conform to the rules set out by the sponsor and prohibiting him from improvising, extemporizing, or otherwise deviating from the script. The sponsor retained the right to suspend performances for up to thirteen weeks without pay, and after one year the agreement provided for two weeks vacation with pay to be taken at a time agreeable to the sponsor. In the circumstances, the Tax Appeal Board again concluded that the individual in question was an employee. But in Number 124 v. M.N.R., 53 DTC 426 and Number 122 v. M.N.R., 53 DTC 399, the Board found that a comedian and "lyric and dramatic artist" were true freelance entertainers who could not be regarded as employees (see also: Grondin v. M.N.R., 55 DTC 169; David Rogers Pepper v. M.N.R., 54 DTC 104; Harold Hunter v. M.N.R., 51 DTC 213; Bradanovich v. M.N.R., 59 DTC 455; James Collins v. M.N.R., 52 DTC 69; Blunt v. M.N.R., 56 DTC 73).

59The position of "media freelancers" has also been considered in several recent cases — some of which are relied upon by counsel for the applicant in support of her alternative submission that the dancers here are "dependent" contractors. In our view, all of these cases are distinguishable; but for the purpose of completeness we shall refer to them briefly.

60In Pacific Press Limited, [1977] 1 Can LRBR 342, the union sought a determination of the legal status of a number of freelance reviewers working for one or the other of the two daily newspapers in Vancouver. Their functions were similar to staff journalists except that the need for their work was intermittent and they worked on a freelance basis. The evidence disclosed, however, that the "rhythm of their work patterns" was entirely determined by the newspapers which they purported to represent when doing their reviews. The individuals worked an average of approximately thirty-five hours a week for one of the two newspapers and were paid at a negotiated rate for each piece written. Indeed, because of the regular nature of the review functions, the individuals were paid a "retainer" for their work based upon their estimated monthly earnings. Percentages of income earned ranged from fifty per cent to ninety per cent from this work. The newspaper controlled the time in which the reviewer did his work, both in assigning a scheduled event and requiring the completed review by a fixed deadline. The newspaper also set standards of writing quality and while the reviewers were theoretically free to work elsewhere for practical reasons they were unable to do so. The newspaper retained the right to summarily terminate any reviewer who proved unsatisfactory. In the circumstances, the Board concluded that the freelancers were "dependent contractors" emphasizing the similarity of their functions to those of staff reviewers, their integration into the organization of the newspaper and the degree of practical control exercised over them. The longevity of the relationship, degree of economic dependence, and extent of integration into the alleged employer's business all distinguish the situation in Pacific Press from that in the present case.

61Pacific Press may usefully be compared with the decision of the NLRB in Boston after Dark Incorporated, (1974), 86 LRRM 1003. There, the Board concluded that certain freelance writers, cartoonists and photographers were independent contractors. The relevant legislation did not contain a "dependent contractor" provision so the Board's choice was between "employee" or "independent contractor" status. Nevertheless, the dissenting decision of (then) Board Member Fanning is of some interest because of its emphasis on the test to be used in the case of freelancers:

"Unlike my colleagues, I would not exclude all so-called "freelance" writers, cartoonists, and photographers as a class merely because they are compensated on a piece-rate basis. There are other relevant factors which the majority opinion fails to consider.

The "right-of-control" test, which the Board uses so often in determining whether a person is an employee of an employer or merely an independent contractor, would appear singularly inapplicable when dealing with the personal services rendered by professional personnel such as the writers, cartoonists, and photographers involved in this case. Given the independent manner in which they do their work and the high degree of discretion utilized in connection with it, what is important to the Employer is the end result, the article or whatever finished product is anticipated. in such instances, therefore, the Board has paid less attention to the "right of control" and more attention to an analysis of the degree to which the professional personnel have been integrated into the operating organization of the employing unit. On the only occasion in which the Board has addressed the issue of employees status of newspaper reporters' Plainfield Courier-News Co., it found suburban correspondents of a city newspaper to be employees of the newspaper rather than independent contractors. In so doing, the Board relied heavily on the fact that the work of such correspondents was closely integrated with and constituted an essential part of, the employer's business, notwithstanding, the facts that their earnings depended in part of the amount of, and quality of material they submitted, their supervision by their employer was minimal, and their method of compensation — a periodic sum of money without any deductions for taxes — differed from that of other unit employees. However, this crucial consideration of integration into the Employer's operation was totally ignored by my colleagues in making their decision in the instant case.

There is no doubt that the contributions of so-called freelances are indeed an essential part of the Employer's business. The record indicates that freelance articles constituted, on the average, approximately 50 per cent of the content of section 1 of the newspaper. Section 2, the arts section, comprises almost exclusively freelance contributions. The ultimate question, however, is how many freelances have, by their own individual contributions, proved themselves so essential an element of the Employer's reportorial effort as to be deemed employees of the employer rather than independent contractors. Put another way, how frequently must a freelance make contributions to the Employer's weekly newspaper before he is to be regarded as an essential individual whose work has become highly integrated into the Employer's business? The answer to this question would define the class of employees to be included in the unit." [emphasis added]

62The fact that an individual is only engaged on a casual basis does not mean that he must be considered "self-employed". In Juillard School, (1974), 85 LRRM 1129, certain casual "per diem" stage technicians were considered employees by the NLRB even though they were hired on a casual basis, because: many of them did work for long periods of time; they were paid an hourly wage, they worked the same hours, used the same tools and worked in close proximity with other production employees; and even those who were hired on only a short term basis could look forward to future re-employment. Although there was no formal rehire list, the evidence indicated that the school tried to re-employ individuals familiar with its stage set up. Similarly, in Market Investigations v. Mm. of Soc. Security, [1969] 1 Q.B. 173 a woman conducting interviews on a casual basis for a market research firm was found to be an employee. Neither the casual nature of the employment nor the absence of employment benefits was considered decisive. On the contrary, the court noted that the same would be true for casual kitchen help in a hotel. There was no entrepreneurial activity or risk taking, and, in the court's view no reason to consider the individual "self employed". However, there was also a permanent connection with a single employer, a training program, considerable control and a series of re-engagements.

63One might also consider Purple Heart Film Corporation, [1979] OLRB Rep. Sept. 900; [1979] Can LRBR 445, where certain craftsmen, in the motion picture industry, who moved from project to project, were found to be dependent contractors; and CBC [1979] 2 Can LRBR 41 where certain freelance research officers who were treated in the same manner as employees were so found by the Canada Labour Relations Board. In the former case, the business relationship were much longer than in the case at bar, and there were also indications of potential re-employment. In the latter case, eighty per cent of the freelancers worked "9:00 to 5:00" five days a week, and were entirely economically dependent on the CBC. More than half of them had contracts for over six months. Income tax, unemployment insurance were regularly deducted and they had many of the same duties and privileges CBC's regular employees. While the present situation has some parallels with Purple Heart, neither case provides a close analogy.

64From this survey of the legal landscape, and the special environment of the entertainment industry, we can now attempt to distil some of the features which individually, or in combination, have been relied upon to support a finding of independent contractor status. It is recognized of course, that a listing such as this must necessarily be somewhat artificial. The factors are interrelated, and one is often only the converse of the other. No one factor, in itself, will be significant. However, all of these matters were mentioned or relied upon in one or more of the cases to which we have already referred and, if present, support a finding that an individual is "self employed":

1. The use of, or right to use substitutes. It has been considered inconsistent with an employment relationship if one could fulfill the bargain with someone else's labour rather than one's own work and skill. This is significant however, only to the extent that it is the alleged employee who makes that decision.

2. Ownership of instrumentalities, tools, equipment, appliances, or the supply of materials. These factors indicate something in the nature of a capital investment so that gains or losses will depend upon something other than the individual's own labour. On the other hand, reliance upon another's financial loss on capital infrastructure for the essential tools necessary for performance of the work is more likely to be associated with an employment relationship.

3. Evidence of entrepreneurial activity. This factor is closely associated with ownership of tools and encompasses self-promotion, advertising, use of business cards, soliciting to develop "clients", the use of agents, and organizing one's "business" (by incorporation or otherwise) to take advantage of limited liability or the tax laws. It may be significant whether the individual has a "chance of profit" or "risk of loss"; that is whether business acumen, sensitivity to the needs of the market, astute investment, innovation, or risk taking, yield a reward or financial loss.

4. The selling of one's services to the market generally. If the purchasers of individual's services are numerous and of diverse character, the individual looks more like an independent self employed person than an employee. If, on the other hand, an individual has a long standing and consistent relationship with one or a limited number of purchasers, he is more likely to be considered a "dependent" contractor or employee especially if the circumstances or contractual relationship limit his ability to dispose of his skill to other purchasers, or his "prime customer" is given priority.

5. Economic mobility or independence, including the freedom to reject job opportunities, or work when and where one wishes. Of course, few independent contractors are entirely free in this regard, but the question is one of the degree. A "self-employed" person has more scope for choice than an employee or dependent contractor who must look for the bulk of his work opportunities to one or restricted number of sources with whom he has "tied his fortunes".

6. Evidence of some variation in the fees charged for the services rendered. This factor is less helpful when those services are standardized and the market is relatively competitive. In such circumstances, one would expect a uniform fee structure even if the individuals providing the services were doing so as "independent contractors", and individual employees may also bargain about their wage levels; however, the ability to bargain or fix the contract fee in accordance with the work or the purchaser's ability to pay, may indicate independent contractor or self employed status.

7. Whether the individual can be said to be carrying on an "independent business" on his own behalf rather than on behalf of an employer or, to put it another way, whether the individual has become an essential element which has been integrated into the operating organization of the employing unit. Integration in this sense usually presupposes a stable rather than a casual relationship and also involves the nature, importance and "place" of the services provided in the general operation of the employing unit. The more frequent the re-engagement or longer the duration of the relationship, the more likely the individual will be regarded as part of, or integrated into, the employer's organization. In the case of entertainers, the cases suggest that it may also be useful to determine the extent to which the artist's material or co-workers are influenced by the employer; that is, whether the artist is left to entertain in his own right, or whether his talents are moulded to conform with the employer's artistic vision or interests. Even an individual engaged for a short time may be considered "integrated" into the employer's operation in the manner of an employee, if he is required to devote the whole of his working time during the period to the service of the employer, promote its organization, or fill in his "non performing" time with unrelated ancillary duties. (See: Whittaker, supra.)

8. The degree of specialization, skill, expertise or creativity involved. If these are dominant element in the relationship, the control test becomes less useful as an indicator of employee status, and in the absence of "integration" into the respondent's organization, the disputed individual is "self-employed" professional.

9. Control of the manner and means of per/brining the work —especial/v if there is active interference with the activity. However, it is the right to interfere rather than the ability to do so which is significant. The fact that a particular occupation involves technical skill, putting control of the details beyond the capacity of the employer, does not preclude a skilled employee from being so regarded, since the right to control may exist even though the ability to do so does not. Similarly, the power to discipline, withhold rewards, or terminate the relationship at will and without cause may indicate an employment relationship whether or not the employer exercises this power.

10. The magnitude of the contract amount, terms, and manner of payment. If the financial terms of the relationship approximate wages (for example, if deductions are made for income tax or other benefits are provided or if an individual is paid by the hour rather than the result) an employment relationship may be indicated. The magnitude of the contract amount can sometimes be significant, (although sports celebrities and professionals may be very highly paid yet still be "employees"; and independent professionals may charge an hourly rate rather than a block fee).

11. Whether the individual renders services or works under conditions which are similar to persons who are clearly employees. The employer's established employee complement may provide a useful benchmark against which the activities of its alleged independent contractors can be measured. if the so-called independent contractor substitutes for a firm's employees, or performs duties out of his ordinary line of work and similar to those of employees (for example, a trapeze artist also acting as a usherette, or a dancer also acting as a waitress) it is more likely that (s)he will be considered an employee.

IV

65It was contended by counsel for the applicant that all of the dancers are employees or, in the alternative, dependent contractors. It was contended by counsel for the Algonquin (and this position must also be considered in respect of the other hotels) that the dancers are "self-employed" independent contractors or, in the alternative, if they are employees, are employees of the agents rather than the hotels. The parties' alternative submissions are the most easily disposed of. The dancers clearly cannot be considered employees of the agents —whether one uses the term "employee" in its ordinary sense, or as extended by the statutory definition of dependent contractor. The dancers do not perform work or services for the agents. They are not paid by the agents. They are not trained by the agents or in any real sense under their control. And neither the dancers nor the agents perceive their relationship as one of employer-employee. Nor do we think the dancers (other than Rachel Berchtold whose situation we will consider separately) can be considered to be dependent contractors of the various hotels. Section 1(1)(ga) makes it clear that the degree of economic dependence must be considered in relation to the person for whom the work is done. In Craft wood Construction Company Limited, [1980] OLRB Rep. Nov. 1613 the Board put it this way:

"Section l (l) (ga) makes it clear that the issue of economic dependence is in relation to the person for whom the work is done. From the wording used, it is not readily apparent that the Legislature had in mind an ''economic dependence'' on a vast number of purchasers or on an entire industry. Rather, the words more reasonably reinforce the existing approach of this Board which has measured economic dependence by the degree of economic association with a particular purchaser of the service or work in question. Indeed, it is almost a tautology to speak in terms of dependence on an industry in the sense that almost everyone is dependent on the source of their income when the source is so widely defined. This is not to say, however, that it is impossible to be economically dependent on more than one person and thereby more resembling an employee in relation to each of the purchasers of the services in question. However, the number of such purchasers would have to be very limited and they would have to exercise a de facto control over the labour market — an oligopoly in economic terms if you will. The economic relationship with each person would, as well, have to be substantial and more or less regular."

Here the dancers provide their services to literally dozens of different purchasers and there is no settled relationship with any of them. None of the dancers (except Rachel Berchtold) is economically dependent on any of these respondents, and in consequence, they cannot be considered dependent contractors.

66The principal, and more difficult question, is whether the dancers are to be regarded as ''self-employed'' or "employees'' of the various hotels at which they work from time to time. Before returning to the facts of this particular case, it may be useful to refer briefly to the "archetypical" employment situation as described by the British Columbia Labour Relations Board in Cranbrook District Hospital [1975] 1 CLRBR 42 as follows:

"What are those features which go to make up an employee in the usual sense of the term? Someone is interviewed by an employer and hired for a job. He will work for some period of time and will be paid a fixed wage, computed hourly, weekly or monthly. He will perform tasks assigned by the employer and subject to the direction and supervision of the latter.

This work is of benefit to the employer's business or enterprise. For that reason, it is worth the while of the employer, to pay for the doing of it. If the work is performed well, it will be so evaluated by the employer, and result in the retention or even promotion of the employee. If the work is not performed well, he will be disciplined and perhaps even discharged, again by the employer."

Of course, a situation such as that would not give rise to litigation. The source of the problem in the hard cases is that there are few elements in the definition of an employee which are both necessary and sufficient for the application of the concept, or which do not have to be qualified in a particular economic or industrial context. But however delicate a balance may have to be struck in penumbral cases, it is worth repeating, that such judgments about where the line is to be drawn, are not made in a legal vacuum. There are established common law tests, decisions of other courts or tribunals in related fields and such guidance as can be gleaned from the structure and purpose of the statute itself. What is so striking about the present case is the extent to which none of the other decisions, and so few of the established principles support a finding of employee status.

67The entertainers are hired for the result they produce — entertainment, — and the hotel has no control, and no wish to control the manner in which they work. It is because they are hired to produce a specific result that the hotel has little concern for their identity or even whether they actually do the work themselves or arrange for substitutes. This is also the reason why the hotels can afford to take no direct role in selecting the performers and are largely unconcerned with the dancer's particular abilities. Of course, from the audience's point of view, each dancer gives a unique performance. This is why it is necessary to change them so regularly. But from the point of view of the hotel all that is important is the result. In how many employment relationships is the employer uninvolved in the selection or supervision of his employees, and entirely unconcerned about their identities or whether the work is done by them or someone else? Those characteristics are more often related to an independent contractor relationship.

68The dancers are not subordinated or subject to the authority of the hotel management in the way that it’s other employees are. The dancers owe no duty of allegiance or fidelity, nor are they subject to managerial direction and control. As we have already mentioned, they can, and do, have their work performed by someone else. The nature of their work is quite different from that of other employees, and they are entirely free to come and go as they please, when they are not actually performing. The hotel prescribes the time and length of shows, but this is the extent of its involvement and it does not improve employee status. Some house rules would be equally applicable whether or not the dancers were self-employed. And how many employees even skilled or professional employees render service over a few days, in 15 minutes segments, being entirely free to do what they wish at other times? (Note: there is no indication of rehearsal, training or preparation time, or the development of an act to the specifications of the clients.) And how many "casual employees" have the range of choice or salary of these dancers?

69The dancers develop their own acts which they sell to the general market. Their investment in costumes and props is not great but this, combined with their choreography, appearance, style, personality, and showmanship, comprise the package which the entertainer markets to the available buyers. While differences in quality or professional ability may not be appreciated by the hotel, the dancers certainly made that distinction themselves and indicated that better dancers had more job opportunities at "better" clubs, more mobility, and more leverage with the agents. They do not really see themselves as employees of the various hotels or as subject to its direction like other employees. Such direction was resisted, and Finkel pointedly remarked that she provided her own costume to blend with her own style. She was not a waitress she said. The dancers regard themselves as freelance professional entertainers.

70All of the dancers who gave evidence indicated that they had a great degree of discretion as to when and where they worked, and consequently, some measure of choice concerning working conditions and prices. As Mona Pierson put it she could "pick and choose". The dancers could and did solicit business on their own behalf, and in addition used the services of one or more agents. If one agent's choice of bookings was unsatisfactory there seems to be little difficulty in getting another. Debra Finkel certainly had no such problem. She found an alternative booking within a day, and was even able to secure a slightly higher price than the hotel was originally offering. And a demand to take her G-string off was refused, yet Finkel was not discharged. While the dancer does not have the same kind of opportunity for profit or risk of loss of some other self-employed entrepreneurs, neither are they in a position of economic dependence analogous to that of an employee. The situation is very different from that of the individual described by the U.S. Supreme Court in Hearst Publications, supra who was "helpless" vis a vis his employer, "dependent on his daily wages" and so tied to his job that he was unable to resist arbitrary treatment.

71If one looks at the organization or integration test, the result is the same. The dancers fall precisely within the parameters enunciated by Lord Denning and (in a different context) by member Fanning of the NLRB. The dancers are not "part and parcel of' or "integrated into" the hotel's business; but are merely "accessory to it". The dancers are not "integrated into the operating organization of the employing unit". To use the words of the British Columbia Labour Relations Board in Pacific Press, these respondents do not regulate the "rhythm of their work patterns". They do not render exclusive service to the hotel engaging them, nor do they put themselves at the service of the hotel in any general sense. They perform no ancillary duties. The length of their contract never exceeds a week and there is no reasonable prospect of reengagement in the near future. While "entertainment" is an integral part of the respondents' operations, none of the dancers can be considered part of the respondents' operation or organization in any meaningful sense — especially when, even after they are engaged, they can have the work done by someone else if its suits them to do so.

72Not one of the entertainment industry cases which we were able to find supports the applicant's position. The features of control here relied upon to justify a finding of employee status were rejected by courts or tribunals in the United States in American Guild of Musical Artists, Century Broadcasting, Strand Art Theatre, Radio City Music Hall, Ringling Brothers, and ibis Enterprises; and in the United Kingdom in: Gould, Stagecraft, and Whittaker. In Gould and Stagecraft. in particular, the Court was careful to point out that the existence of "house rules" was not significant, since rules of that kind were inherent in the running of an efficient entertainment operation — just as there must be precise rules concerning the time and length of show. The longevity of the relationship, which influenced the Court in Ringling Brothers and Stagecraft is here insignificant; and there is no “moulding" of the dancers' acts into a total program, or any control of their collaborators or material. The dancers here are not part of an established company, show, or program. On the contrary, the circumstances here are similar to those of a casual entertainer working for a week in a vaudeville theatre. But that is the situation which the judges in Ringling Brothers, Stagecraft, and Whit taker all treated as the obvious example of the "independent contractor" from which their own particular cases differed. Finally, although only engaged for a short period, the dancers do not serve the hotel exclusively or devote more than a small proportion of their time to its service — factors which influenced the Court in Wit taker. In summary, then, none of the cases which might support a claim that entertainers can be employees, support the applicant in this case.

73Reference to the statutory purpose test is useful to resolve close cases or choose between alternative statutory interpretations, but the term "employee" is not infinitely elastic, and cannot be extended to all individuals in a position of economic dependence. Economic dependence is an inevitable feature of an interdependent economic order, and as we have already noted, none of the dancers is in fact economically dependent on any of these respondents. Nor is the kind of dependence which they do exhibit similar to that of most employees. They are dependent, if at all, on an industry. While the concept of employment can be stretched a fair distance, ultimately it must run up against its legal boundaries — especially in a jurisdiction which considered it necessary to amend the statute in order to encompass so-called "dependent contractors" who might not otherwise have been considered employees. Moreover, in considering the statutory purpose one must also consider the framework which the statute provides to accomplish it. Was that framework designed to accommodate persons who are entirely transitory, yet largely free to choose when and where they wish to work, or whether the work will be done by themselves or substitutes? Does certification make sense for a bargaining unit which will turn over completely at least three times before the application is even processed, and perhaps ten times if the Board decided to exercise its discretion to order a representation vote? and who would vote? The persons who originally supported the trade union would long since have left with little prospect of returning. Even the persons casting their ballots will have left before the count can be finalized and a formal certification issued. What does the statutory freeze mean in the circumstances? Who votes in ratification vote? And to whom has the employer the right to present its final offer? We do not suggest that novelty, in itself, is determinative; for trade unions have been able to develop effective institutional responses to a special industrial environments. Thus, in the construction industry for example, the hiring hall, extended area bargaining master agreements and craft unionism, have all evolved to meet the problems of a unique economic context. Still, we do not think it is insignificant that a group of individuals who it is claimed are employees; do not fit easily into the framework of collective bargaining established for employees.

74When all of the evidence is weighed in light of the established legal principles and case law, we are constrained to find that the casual entertainers whom the applicant seeks to represent, are "self employed" independent contractors rather than employees of the various hotels by which they may be engaged from time to time. While, no doubt there are some facets of the evidence which might support a finding that they are employees, when it is viewed in its totality, we do not think that conclusion can be supported.

75The position of Rachel Berchtold serves to reinforce our general conclusion. Ms. Berchtold the house dancer at the Colonial is economically dependent on the Colonial in a manner analogous to that of an employee. She has worked at the Colonial on a full time basis for a number of months and expects to continue to do so. She does not have the same mobility or exercise the same range of choice as the other dancers. There is more control over her activities which must be co-ordinated more closely with that of the transient dancers. She is supposed to get every fourth week off; but has been required to work nevertheless. The number of her shows has been increased and decreased unilaterally, as has the price paid. There was more concern for her "image" than there was at the other hotel, more direct contact with management, and more of a feeling on her part that these had to conform to management's expectations. In short, she is in a position of economic dependence more closely resembling that of an employee than an independent contractor, and in consequence can be regarded at least as a dependent contractor and perhaps as an employee. For the purpose of this decision, it is unnecessary to make that determination.

76For the foregoing reasons therefore the Board finds that the two house dancers are employees within the meaning of the Act, and that the other dancers are not.

77The effect of this finding is that the applications in respect of the Algonquin, Waverley and Carousel must be dismissed, because there were no "employees" in the bargaining unit at the time the application was made. The same cannot be said for the Colonial. In the case of the Colonial, there were two employees within the meaning of the Act who may have been members of the applicant. The Board does not have sufficient information before it to determine the membership support for the applicant as at the terminal date; nor have the parties had the opportunity to address themselves to the impact of the Board's employee status finding on the overall status of the applicant as a trade union. Accordingly the registrar is directed to relist the matter, so that in respect of the Colonial, the applicant can address all outstanding issues (other than the narrow issue with which the other panel is seized.)