When seasonal hires look more like permanent employees, be prepared to pay

Every spring, Canadian employers repeat the same ritual: they hire "summer students" and seasonal staff, comforted by the belief that these relationships are, by definition, temporary — tidy engagements that begin in May and end, without consequence, in August.

That belief is misplaced.

Employment law has little patience for labels. Calling a role a "summer job" or a "seasonal position" does not determine an employee's rights.

Courts are concerned with substance, not form. And the substance of these arrangements, particularly when repeated over time, can look very different from the neat, temporary construct that employers imagine.

The complication arises when "temporary" becomes habitual.

Across industries — from tourism to construction to agriculture — employers routinely bring back the same individuals year after year. A university student works every summer. A seasonal labourer returns each spring, part of a predictable cycle.

To the employer, each engagement feels discrete: a fresh hire, a clean slate, a defined end date. To a court, it looks like continuity, an implicit understanding or agreement.

Where there is a pattern of recurring employment, especially one marked by expectation and reliance, courts are inclined to assess the relationship as a whole.

What emerges is not a series of isolated contracts but something closer to ongoing employment — punctuated, perhaps, by seasonal pauses, but not truly terminated.

That distinction is not academic. It is, however, expensive.

Employees in indefinite employment relationships are entitled to reasonable notice of termination or pay in lieu. The seasonal nature of the work does not extinguish that entitlement. Yet many employers proceed on precisely that assumption — that the off-season represents a legal break in the relationship.

But it often does not.

A pattern of re-engagement — the same individual, the same role, year after year — can be sufficient for a court to conclude that the employment relationship never truly ended. It simply went dormant. And the longer that pattern persists, the more difficult it becomes to argue otherwise.

One summer is rarely problematic. Four or five consecutive seasons is something else.

At that point, the "temporary" label begins to collapse under its own weight. The employee is no longer a casual, short-term hire but a known quantity — trained, relied upon and integrated into the operations. From a business perspective: efficient. From a legal perspective: risky.

The issue surfaces when the pattern is broken.

An employer elects not to bring the individual back. The employee sees it as a termination of ongoing employment and seeks compensation. The dispute that follows turns not on what the parties called the relationship but on what it actually was.

Courts will examine the full history: the number of seasons worked, the regularity of rehire, the nature of the role, and, critically, whether there was a mutual expectation that the relationship would continue. Where that expectation exists, employers find themselves liable, usually for compensation for the next season foregone.

This risk can be managed, but only with foresight. Properly drafted employment agreements, with enforceable provisions addressing duration and termination, are essential. Even then, they must comply strictly with employment standards legislation. Many do not.

Employees, for their part, should be equally cautious about assumptions. Returning to the same employer on a yearly basis may confer rights that are far greater than the "seasonal" label suggests.

Seasonal work may feel temporary. In the eyes of the law, it can appear permanent.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario and Alberta, and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Candice Malan is an associate at Levitt LLP.