Andrew Mikecz was first employed by the Mac's Milk chain of stores in 1996. He was hired as a painter of the stores in the Burlington to Toronto area. In 1998 he was laid off because of a shortage of work. In 2000 Mac's Milk trained him to install window signs and decals. At that time, he was again hired and paid as an hourly-rated employee.

In January 2001 he was called back under a new arrangement. He was to do exactly the same work, but at a fixed price per store. He could work in his own time and provided his own transportation for stores both in and out of Toronto. Mac's supplied him with his equipment which was a squeegee and a large flat tray for holding water. There was no written contract.

On January 25, 2002, Clay Pollard, the owner of a Mac's Milk store on Airport Road in Mississauga arrived at 8:00 a.m. to open the store. At that time, he checked for ice on the sidewalk out front of the store and found none. Mikecz arrived at 10:00 a.m. at the Mac's Milk store to put up some window decals for the upcoming Super Bowl game. He filled up a tray of water that was thirty-five (35) inches wide and four inches high for use in putting up the decals. When he was done, he carried the tray out of the store, across the sidewalk, and dumped it into a storm sewer. In the process, some of the water from the tray slopped front of the store and began to turn to clear ice.

At 11:30 a.m., John Armstrong, an insurance salesman, arrived at the store to buy some cigarettes. He did not see the patch of ice and fell hard. As a result of the fall, he broke his ankle and his left leg. A screw had to be inserted by surgical means. He was off work for almost five months and lost $25,000.00 in income from lost sales and commission bonuses.

Armstrong sued Mac's Milk for his injuries claiming that they were responsible for Mikecz's negligence in not cleaning up the water before it turned to clear ice.

1. Was Mikecz an employee of Mac's Milk when Armstrong fell or was Mikecz an independent contractor?

2. Identify three legal tests that you used in coming to your conclusion in question # 1 and discuss how the tests would apply in the case by referencing each of them to the facts. In other words, using test # 1 which way does the test lean on the facts and why?