Docket: T-1877-10
Citation: 2011 FC 1295
Ottawa, Ontario,
November 10, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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TRANSPORT VARES INC.
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Applicant
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and
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GUOJIE FENG
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Respondent
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and
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Me MARC ABRAMOWITZ
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Adjudicator appointed by the Minister
of Labour
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REASONS FOR JUDGMENT AND
JUDGMENT
I. OVERVIEW
[1] This is a
judicial review of a decision of Me Mark Abramowitz (the Adjudicator),
condemning Transport Vares Inc. (Applicant) to pay Mr. Guojie Feng (Respondent)
9,296.54 $ with interest and the indemnity of article 1619 of the Civil
Code of Québec [CcQ] because the Respondent is determined to be an employee
of the Applicant.
[2] For the reasons that
follow, this application for judicial review is allowed in part.
II. FACTUAL BACKGROUND
A. Facts
[3] Mr. Guojie Feng
(Respondent) answered an advertisement in the “Journal de Montréal” of March
21, 2008 seeking a “chauffeur, classe 1, Canada US, Camion Volvo 2005” (see ad
in appendix B).
[4] The Respondent phoned
the Applicant‘s president, Mr. Peter Bogeljic, and submitted his resume by fax.
On April 13, 2008, Mr. Bogeljic met the Respondent at Applicant’s place of
business for a road test further to which the Respondent was hired at a rate of
0.36 $ per mile. His first assignment started on April 16, 2008.
[5] On April 21st,
2008, Mr. Bogeljic inquired if the Respondent was incorporated. The Respondent
answered affirmatively but also indicated his preference to be placed on the
payroll as an employee of the Applicant. In response Mr. Bogeljic indicated
that all Transport Vares’ drivers were paid as incorporated. He also specified
that the Applicant did not have a payroll and that the Respondent needed to
provide an incorporation certificate in order to be paid.
[6] The Respondent complied
with Mr. Bogeljic’s request and provided the certificate of incorporation of
Clermont F. Transport Inc. which was constituted on May 15, 2007.
[7] Clermont F. Transport
Inc. was incorporated when Respondent wanted to buy his own truck. However, the
Respondent never followed through with this plan.
[8] After the first trip,
the Applicant agreed to pay the Respondent 0.37 $ per mile rather than 0.36 $.
[9] The Respondent’s
remuneration was based on trip itineraries and route reports specifying various
stops, mileage, drops, pickups and layovers which were then entered in the “PC
Miler”, a computer program that calculated the Respondent’s remuneration. No
formal bills were submitted by the Respondent’s company nor was GST or PST
claimed or paid in respect of the Respondent’s 31 trips.
[10] The vehicle assigned to
the Respondent was owned by the Applicant. It also bore the Applicant’s logo.
The costs of licenses, permits, fuel, insurance, road tolls, repairs, maintenance
and washing of the vehicle were all paid by the Applicant.
[11] While providing his
services to the Applicant, the Respondent did not accept work from other
companies.
[12] The Applicant directed
and instructed the Respondent indicating where he needed to pickup, load and
deliver merchandise.
[13] If the vehicle needed
repairs, the Respondent had to inform the Applicant who would then authorize
the driver to effect such repairs or not.
[14] The Respondent informed
the Applicant when arriving at destination in order to receive further
instructions.
[15] The Respondent had no
capital investment in Applicant’s business. He was paid by the mile per trip as
well as for stops and layovers.
[16] From April 16, 2008 to
January 11, 2009, the Respondent’s sole source of income was earned exclusively
from his work for the Applicant.
[17] Their relationship ended
on January 11, 2009, when the Respondent was forcefully removed from one of the
Applicant’s truck by Mr. Bogeljic. The Respondent refused to get out of the
Applicant’s truck because he wanted to remove his belongings. After 10 minutes,
Mr. Bogeljic instructed his wife to call the police because the Respondent
refused to hand over the keys of the truck.
[18] The Respondent’s
personal tax report for the year 2008 indicates employment income of 27 464 $
before tax credits. Clermont F. Transport Inc. disclosed revenues of 37 371 $
and total expenses of 37 983 $ of which salaries and wages amounted
to 24 009 $ for a loss of 612 $ in its tax report for its fiscal
year ending on April 30, 2009.
[19] The Respondent claims
that Applicant failed to pay him for 5 trips plus 4% vacation pay based on a
total remuneration of 42 221.80 $. The Respondent also claims compensation
for certain statutory holidays. According to the Adjudicator, the Respondent’s
listings of trips did not include the 25th and 31st days
of December. The Respondent worked on June 24, July 1st and
September 1st. Finally, the Respondent claimed two weeks salary in
lieu of notice pursuant to his dismissal. His claim is based on subsection
230(1)(b) of the Canada Labour Code, RSC, 1985, c L-2 [CLC].
B. Impugned decision
[20] The Applicant’s counsel
raised a preliminary objection of lis Pendens because the Respondent
also filed a legal proceeding against the Applicant before the Small Claims
Division of the Court of Quebec. The Adjudicator dismissed the objection on the
basis that the two forums were different (one being a court of justice and the
other an administrative tribunal). He relied upon Vigi Santé Ltée v (Montréal)
Communauté urbaine, [2001] JQ No 6010, REJB 2001-28718 [Vigi].
[21] With respect to the main
issue, the Adjudicator based his decision on 671122 Ontario Ltd v Sagaz
Industries Canada Inc, 2001 SCC 59, [2001] 2 SCR 983 at para 47 [Sagaz],
where Justice Major wrote:
[47]
… The central question is whether the person who has been engaged to perform
the services is performing them as a person in business on his [or her] own
account…
[22] He then considered the
factors set out in Sagaz:
1)
the
level of control the employer exercised over the workers activities;
2)
the
ownership of tools and equipment;
3)
whether
the worker has the right to hire helpers or others to do the work assigned;
4)
the
extent of investment in the business by the worker; and
5)
who
bears the risk of profit or loss.
[23] The Adjudicator wrote in
his decision that the Applicant owned the truck provided to the Respondent. The
Respondent did not advertise for clients or did not have a separate phone
number or address where a potential shipper could contact him.
[24] The rates and charges
were set by the Applicant. The carrier owner was listed as the Applicant
whereas the Respondent, Mr. Guojie Feng appeared as the person in charge of
carriage.
[25] Costs of fuel,
insurance, permits and maintenance of the truck were the Applicant’s
responsibility. Repairs necessitated by breakdowns required the Applicant’s
authorization.
[26] The Adjudicator also
indicated that Respondent had virtually no risk of additional profits or loss
since he was paid by the mile, nor did he hold any investment in the
enterprise.
[27] The fact that the
Respondent was paid through an existing corporate entity, Clermont F. Transport
Inc., was of no consequence according to the Adjudicator. He relied on McKee
v Reid’s Heritage Homes Ltd, 2009 ONCA 916 [McKee]. The use of a
company was simply a “vehicle facilitating payment by the Applicant for the
Respondent’s services”.
[28] The name assigned to a
transaction is not necessarily conclusive of the relationship between the
parties (see Shaw Communications Inc v The Minister of National Revenue,
2003 DTC 1459).
[29] The Adjudicator
concluded that the Respondent was an employee of the Applicant and not an
independent contractor.
[30] Consequently, the
Applicant was liable to the Respondent for the following sums:
1.
1
727.16 $ for trip No 29;
2.
352.13
$ for trip No 30;
3.
1
276.16 $ for trip No 31;
4.
1
688.87 $ as vacation pay of 4% on total remuneration of 42 221.80 $ calculated
by the Respondent;
5.
1
223.90 $ for unpaid statutory holidays;
6.
3
028.32 $ as 2 week’s severance in lieu of notice pursuant subsection 230(1)(b)
of the CLC;
7.
The
whole forming a total sum of 9 296.54 $ with interest and indemnity of article
1619 of the Civil Code of Québec, LQ, 1991, c 64 [CcQ].
III. LEGISLATION
[31] The applicable
legislation is appended hereto.
IV. ISSUES AND STANDARD OF REVIEW
A. Issues
1.
Did
the Adjudicator err in rejecting the Applicant’s preliminary objection of lis
pendens?
2.
Did
the Adjudicator err by concluding that the Respondent is an employee and not an
independent contractor?
3.
If
the Court answers the second question negatively did the Adjudicator err in
calculating the amounts due?
B. Standard of Review
[32] The applicable standard
of review for the first two issues is correctness.
[33] In Dynamex Canada Inc v Mamona, 2003 FCA 248, [2003]
FCJ No 907 at para 42 [Dynamex], the Federal Court of Appeal wrote that
“the determination of the status of persons as employees or independent
contractors using the common law tests arises in ordinary court proceedings in
the context of a claim for damages for wrongful dismissal or any number of
other claims an employee might make against an employer”. In the Court’s view,
the determination of the Respondent’s status calls for the standard of
correctness. However, the application of this principle to the facts of the
case is a question of mixed fact and law and should be reviewed on the standard
of reasonableness (see Dynamex at para 45).
[34] As for the other questions,
the Supreme Court of Canada
writes in Parry Sound (District) Social Services Administration
Board v Ontario Public Service
Employees Union, Local 324 (O.P.S.E.U.), 2003 SCC 42, [2003] SCJ No 42 at para 21, that:
[21] … As the Court concluded in Canadian Broadcasting
Corp. v. Canada (Labour Relations
Board),
[1995] 1 S.C.R. 157,
at para. 49, there may be instances in which the reasonableness of a tribunal's
decision is dependent on it having correctly answered a question of law in the
course of reaching that decision. If the critical question that the tribunal
must answer is a question of law that is outside its area of expertise and that
the legislature did not intend to leave to the tribunal, the tribunal must
answer that question correctly.
[35] The Court is of the
opinion that the Adjudicator had to make a decision on the objection of lis
pendens before addressing the central issue. Lis pendens is a
principle of law that seeks to eliminate the multiplicity of proceedings or
contradictory decisions. The applicable standard of review in the present case
is correctness. “It is the kind of question of law (…) [that] does not engage
the special expertise of the [Adjudicator]” (see Crouse v Commissionaires Nova Scotia, 2011 FC 125,
[2011] FCJ No 158 at para 23).
[36] As to the third issue before this Court, reasonableness is
the applicable standard.
[37] Without limiting the
generality of the Adjudicator’s powers given by subsection 251.12(4) of the
CLC, he or she may also, at subsection 251.12(4)(a) “confirm, rescind or
vary, in whole or in part, the payment order or the notice of unfounded
complaint”. The legislature gives the Adjudicator the power to allocate certain
amounts in favour of a party. Given that this issue goes to the heart of the
panel's jurisdiction, the Court finds that the applicable standard is
reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47).
[38] “This Court will not
intervene solely because it might have come to a different conclusion from that
reached by the Adjudicator or been more or less generous than the latter in
determining the compensation the Applicant could obtain” (see Gauthier v
National Bank of Canada, 2008 FC 79, 327 FTR 204 at para 24).
V. Arguments and analysis
1. Did the Adjudicator
err in rejecting the Applicant’s preliminary objection of lis pendens?
Applicant’s submissions
[39] The Adjudicator rejected
that Applicant’s preliminary objection of lis pendens based on the
principle that lis pendens cannot exist between a court of justice and a
branch of the executive power. He based his decision on the Vigi case.
[40] The Applicant contends
that the present case should be distinguished from Vigi wherein the
Court specified that there was no possibility for contradictory decision or
multiplicity of proceedings because the proceedings had been suspended before
the “Tribunal Administratif du Québec” until a judgment was to be rendered by
the Superior Court.
[41] Applicant relies on the Laurier
v Révélation RL inc, decision 2008 QCCQ 10514, wherein the Court did not
apply the principle set forth in Vigi. In that case, the Court stated
that the administrative tribunal had exclusive jurisdiction rather than
concurrent jurisdiction with a Court of Justice.
[42] Applicant also submits
that in the present case, the jurisdiction of the Minister of Labour and that
of the Court of Quebec are mutually exclusive. In deciding that the Respondent
was an employee of the Applicant, the Adjudicator conferred upon himself the
exclusive jurisdiction over the Respondent’s claim for wage recovery.
[43] Applicant submits that,
should the Court of Quebec accept the Applicant’s contention, the Court will
also confer upon itself exclusive jurisdiction over the Respondent’s claim.
[44] According to the
Applicant, there is a serious possibility that the Court of Quebec will render
a judgment that is contradictory, different or redundant to the Adjudicator’s
decision.
[45] The Applicant also
claims that there are no reasonable grounds for the Adjudicator’s conclusion
regarding the Respondent’s claim before the Court of Québec that “the total of
these sums amounts to 9 196.81 $ but was reduced or limited to 4 359.01 $
presumably given the upper limit of jurisdiction of the Small Claims division
of that Court where the maximum claimed may not exceed 7 000 $” (tab
5, exhibit A-3 in the Applicant’s record).
[46] Before the Court of Québec,
the Respondent alleged he did not claim the whole amount “because annual
vacation payment, holiday payment and unjust termination fees are related to
the relation between me and Vares Transport Inc., so I just make a claim to the
parts unrelated to the relation, that is 4 359.01 $ plus interest”. The
Applicant claims that this constitutes a judicial admission by the Respondent
that the Arbitration Tribunal does not have jurisdiction over the Respondent’s
claim for the unpaid trips.
Respondent’s submissions
[47] The Respondent submits
that the Applicant’s preliminary objection on lis pendens should be
dismissed based on the Adjudicator’s determination.
Analysis
[48] In Weber v Ontario
Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada explained that the
Model of overlapping jurisdiction may be applied “if a cause of action raises
issues which go beyond the traditional subject matter of labour law”.
[49] In Kim v University of Regina, [1990] SJ No 704, 74
DLR (4th) 120 at para 7, the Saskatchewan Court of Appeal writes:
[7]
“In light of this it will be seen that while the two proceedings overlap,
especially as to matters of fact going to Dr. Kim's early retirement under the
collective bargaining agreement and how that came about, the two are not
co-extensive. The action raises issues quite beyond the capacity of the
arbitration board to deal with. This is especially so in relation to the
statutory cause of action founded on the University of Regina Act”.
[50] The Court finds that Respondent
did not have to proceed exclusively by arbitration. The Respondent was entitled
to file a claim for unpaid wages before the Court of Québec and reduce the
amount of his claim to 4 359.01 $.
[51] Since the Court of
Quebec and the Adjudicator both have overlapping jurisdiction in this instance,
the Adjudicator correctly applied the principle determined by Vigi case
at para 41. It
is recognized that:
La litispendance ne saurait exister qu'entre différentes
procédures relevant de l'ordre judiciaire. Or, [un tribunal administratif]
n'est pas une cour de justice […] et constitue de ce fait un prolongement du
pouvoir exécutif […] (Procureure générale du Québec c Barreau du
Québec, [2001] JQ no 3882). [Cela] reviendrait à remettre en question le
principe de la séparation des pouvoirs.
[52] The
Adjudicator did not err when he rejected the Applicant’s preliminary objection
of lis pendens.
2. Did the Adjudicator
err by concluding that the Respondent is an employee as opposed to an
independent contractor?
Applicant’s submissions
[53] The Applicant submits
that the Adjudicator‘s assessment of the facts before him do not reflect a correct
interpretation of the applicable criteria in law, as summarized by the
Adjudicator.
[54] The Adjudicator assigned
significant weight to the fact that Respondent would have preferred to have
been an employee rather than a contractor. The Applicant made it clear that he
was hiring a contractor and not an employee. The Respondent accepted this
situation and understood it completely.
[55] Furthermore, the
Adjudicator did not take into consideration the fact that the Respondent chose
to work for Transport Vares Inc. even though it was obvious that he was hired
as a contractor by the Applicant. The Respondent was well aware of the
distinction between the status of employee and that of contractor because he
filed two other claims against other transport companies on similar grounds.
[56] The Applicant submits
that the Adjudicator erred in concluding that the qualification of the
relationship between the parties was of no consequence in the case at hand. It
is also alleged that the Adjudicator misinterpreted the Ontario Court of Appeal’s
decision in McKee. According to the Applicant, the Adjudicator’s
conclusion that it was of no consequence differs greatly from Justice
MacPherson’s statement in McKee when he writes that “the fact that McKee
operated through a business in her work for RHH from the beginning is not
determinative of her work status”.
[57] The Adjudicator
determined that Respondent was financially dependent on the Applicant. The
Adjudicator should not have considered whether the Respondent actually worked
for others but instead, whether he could have worked for others. The Applicant
submits that Respondent was never barred from working for other companies. The Adjudicator
further failed to take into consideration the Respondent’s previous claims
against other employers after he agreed to work for them as a contractor.
[58] The Applicant submits
that the Adjudicator’s finding that Respondent was an employee as defined in
section 3 of the CLC is based on several erroneous findings of fact.
[59] The fact that Respondent
was paid for his services through an existing corporate entity is of no
consequence as was held in McKee cited above. The Adjudicator
disregarded the fact that Clermont F. Transport Inc. realized profits prior to
any contractual relationship with the Applicant, as evidenced in the income tax
report of Clermont F. Transport Inc. (Applicant’s record, tab 5, exhibit A-5).
[60] The Respondent also
contracted through his company with two other transporters namely Kowan
Transport and Via Val, as the Respondent admitted during the hearing before the
Adjudicator.
[61] The Respondent
negotiated the rates for his trips on several occasions as was shown in the
trip sheets produced in the Applicant’s record (tab 5, exhibit A-6).
[62] The Respondent denies
having seen a memo dated January 1, 2005, written in French, which would have
been affixed to the cab of his truck along with the license, insurance and
annual inspection certificates. He maintains that the Applicant never mentioned
or explained its terms to him. According to the Applicant, Respondent was well
aware that he would be paid through his incorporated company without tax
deductions and that Applicant was not responsible for insurance or government
remittance at source. Furthermore, Respondent was responsible for remitting
trip sheets and could refuse assignments at any time.
[63] The Adjudicator also
refused to consider affidavits relevant to the work conditions applicable to
all of the Applicant’s contractors. If the Adjudicator had considered the
affidavits, his finding would have been different according to the Applicant.
[64] The relationship between
the parties was such that the Respondent was never guaranteed a job.
Respondent’s submissions
[65] According to the Respondent,
the Applicant’s ad in “Le Journal de Montréal” was clear; the Applicant was
looking for a “chauffeur” and not an incorporated entity.
[66] The Respondent submits
that Mr. Bogeljic told him the Applicant does not have a payroll and paid the
drivers, as incorporated, after he came back from his first trip. He was not
aware of that situation when he was hired.
[67] The Respondent also
alleges that even though he was considered a contractor by the Applicant, he
received more detailed instructions and calls when working for the Applicant
than for any other company where he was on the payroll. The Respondent writes,
at paragraph 16 of his memorandum that he received detailed instructions from
Mr. Bogeljic, even though he was a contractor.
[68] The Respondent claims to
have worked full time for the Applicant. He was also driving the Applicant’s
truck. The Applicant paid for all the licenses, plates, insurance and operating
expenses such as fuel, oil, tolls and maintenance. If the truck broke down the
Respondent was dependent on Mr. Bogeliic’s instructions.
[69] Respondent further
underlines that he did not have any capital in the Applicant’s business nor any
financial risk or possibility of additional profits. Furthermore Respondent
could not hire any helper or employees.
[70] Respondent acknowledges
having refused a total of 3 trips but alleges justifiably so. He refused a trip
to Texas because he was on
vacation. Around August 18, 2009, he refused a trip to New-York being unable to
drive over there and also because 53 feet trailers are prohibited on several
roads in that state. Finally, he refused one last trip before his dismissal having
just returned from a previous engagement.
Analysis
[71] The Sagaz case is
well known in Canadian jurisprudence and is applicable in this instance. The
Supreme Court of Canada writes, at paragraph 46, that: “there is no one
conclusive test which can be universally applied to determine whether a person
is an employee or an independent contractor. Lord Denning stated in Stevenson
Jordan, supra, that it may be impossible to give a precise definition of
the distinction”. The Supreme Court also adds that the central question is
“whether the person who has been engaged to perform the services is performing
them as a person in business on his own account” (see Sagaz at para 47).
[72] However, the Court must also
consider other factors including “whether the worker provides his or her own
equipment, whether the worker hires his or her own helpers, the degree of
financial risk taken by the worker, the degree of responsibility for investment
and management held by the worker, and the worker's opportunity for profit in
the performance of his or her tasks” (see Sagaz at para 47; Wiebe
Door Services Ltd v Minister of National Revenue; [1986] 2 CTC 200 at
para 3 [Wiebe Door]).
[73] Since there is no
conclusive test that can be universally applied to determine whether a person
is an employee or an independent contractor, the Court underlines that “the
above factors constitute a non-exhaustive list, and there is no set formula as to
their application” (see Sagaz at para 48).
[74] If these factors are not
conclusive of the legal relationship between the parties, the Court can also
turn to Wolf v Canada, [2002] 4 FC 396, to
determine whether the Respondent is an employee or a contractor.
a)
Ownership
of tools and equipment
[75] It is clear from the
record and the Adjudicator’s decision that the Applicant owns the truck
provided and assigned to the Respondent. Cellular phones were normally provided
to drivers; however, since there was a shortage of equipment, Mr. Bogeljic paid
half of the Respondent’s cellular phone bills. The Respondent did not provide
other tools or equipment, namely a truck.
b)
Respondent’s
own employee or helpers
[76] It is also clear and
undisputed by Applicant that Respondent did not have the authority to hire
helpers of others to discharge his duties as a truck driver.
c)
degree
of financial risk taken by the worker and opportunity for profit
[77] The Respondent had no
financial risk as a trucker for the Applicant. The expenses and maintenance for
the truck were the Applicant’s responsibility.
[78] At paragraph 28 of his record,
the Applicant submits that “the Respondent negotiated rates for his trips on
several occasions as evidenced by the Respondent’s own testimony before the
Adjudicator, as well as the trip sheets produced by the Applicant during the
hearing”. The Respondent was paid by the mile per trip as well as for stops and
layovers. He did not have any investment in the Applicant and was assigned
trips by Mr. Bogeljic. As any employee on a payroll would do, the Respondent
initially negotiated a rate before he started to work for the Applicant and
renegotiated in other instances. Salaried and contractual employees
periodically seek wage increases depending on circumstances.
d)
Degree
of control and responsibility
[79] The Applicant completely
directed the Respondent providing detailed instructions as where and at what
time the load had to be delivered. The Respondent was under the direct control
of Applicant at all times. He had to advise the Applicant if there were claims
for damages or shortage of loads before signing bills of lading. Similarly in
case of equipment failure, Respondent was totally dependent on Applicant.
[80] However, it is
acknowledged that drivers could choose their route when they had an assignment.
e)
Integration
of the Respondent in the Applicant’s business
[81] In Stevenson Jordan
and Harrison, Ltd v MacDonald and Evans, [1952] 1 TLR 101 at page
111, Lord Denning writes that:
“one
feature which seems to run through the instances is that, 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.”
[82] The Respondent is in the
trucking business and all the work is performed by its truckers. Without the
truckers, the Applicant “would be out of business” (see Wiebe Door at
para 3). The Applicant’s truckers, including the Respondent, are or were all an
integral part of its business.
f)
The
nature of the relationship
[83] The Applicant states
that it placed a memo dated January 1st, 2005, in its packet of
documents affixed to the cab of the truck, along with the license, insurance
and annual inspection certificates. The Respondent denies having seen the memo
and alleges that the Applicant never mentioned or explained its terms to him.
[84] The Adjudicator writes
in his decision that no evidence was adduced by the Applicant to establish that
Respondent was aware of the memo and its content (para 37(5) of the
Adjudicator’s decision). Unfortunately; there is no transcript of the
arbitration hearing. The role of this Court is not to reweigh the evidence
adduced but to ensure that the arbitrator’s decision is not based on errors of
law or a misconstruction of the facts. The Adjudicator had the benefit of
hearing the parties’ testimony over three days. The Court must show some
deference to the Adjudicator’s assessment.
[85] The Applicant claimed
that the Adjudicator committed several breaches of procedural fairness during
the hearing. No evidence thereof was adduced before us. According to the Applicant,
the Adjudicator failed to consider the affidavits of other contractors relating
to their work conditions. The Court cannot speculate on the nature of the
evidence that would have been presented if the affidavits had been considered.
Yet, the Applicant’s President provided signed affidavits as to the working
conditions applicable to the Respondent and detailing how he managed Transport Vares
Inc. It is difficult to conceive what additional evidence would have been
adduced except possibly to establish these drivers’ understanding of the nature
of their relationship with Applicant, but that does not change the relationship
between Applicant and Respondent. Therefore the Adjudicator’s refusal to
consider the affidavits does not, in this Court’s opinion, constitute a
reviewable error.
[86] Furthermore, the
Respondent was being paid through Clermont F. Transport Inc. like a contractor.
The Applicant also mentioned that all of its drivers were paid through their
own incorporated entities. However, “it does not mean that the parties’
declaration as to the legal character of their contract is determinative” (see Royal
Winnipeg Ballet v The Minister of National Revenue, 2006 FCA 87).
[87] The Applicant also
contends that the Adjudicator erred when he concluded that the nature of the
relationship between the parties was of no consequence in the case at hand and
was in contradiction with Justice MacPherson’s conclusion in McKee. The
Court rejects this argument since it is apparent, when reading the decision, that
the Adjudicator concluded that qualification of the relationship was of no
consequence based on the facts before him. The Adjudicator’s reading of McKee
is not erroneous, but his choice of words could have been more precise and
better chosen.
[88] In applying the criteria
set by the Sagaz case, the central question is “whether the person who
has been engaged to perform the services is performing them as a person in
business on his own account”. Upon reviewing all the criteria, the Court finds
that the Adjudicator did not err when he came to the following conclusions:
a)
Ownership
of tools and equipment – indicates employment
b)
Respondent’s
own employee or helpers – indicates employment
c)
degree
of financial risk taken by the worker and opportunity for profit – indicates
employment
d)
Degree
of control and responsibility – indicates employment
e)
Integration
of the Respondent in the Applicant’s business – indicates employment
f)
The
nature of the relationship – indicates employment
3. Having found
that the Adjudicator has not erred in determining that Respondent was an
employee, did the Adjudicator err in calculating the amounts due?
Applicant’s submissions
[89] At paragraph 53 of its
memorandum, the Applicant writes that “the evidence clearly indicates the
absence of any reasonable expectation of continued engagement on Respondent’s
part”. The Respondent was never guaranteed any specific number of trips.
[90] With respect to the
Adjudicator’s findings that the Applicant owes two weeks of severance in lieu
of notice, the Applicant submits that the Adjudicator erred in assessing the
facts before him. The Adjudicator did not expressly conclude that Respondent
was unlawfully dismissed; he should have considered the Applicant’s allegations
and supporting evidence showing the Respondent’s relationship with the
Applicant and the manner in which it was terminated.
[91] It is also submitted
that the Adjudicator erred in calculating the amount owed to Respondent for
statutory holidays. As it appears from paragraph 37(20) of the Adjudicator’s
decision, Respondent was paid for the work performed on statutory holidays. In
the alternative, Applicant alleges that such sum should not in any case exceed
fifty percent of the average daily earnings for each trip, for a total of
407.97 $.
[92] Finally, the Applicant
submits that the Adjudicator calculated the amount of severance pay arbitrarily
and since he never determine Respondent’s regular hours of work nor his hourly
rate of wages.
Respondent’s submissions
[93] The Applicant made false
assertions. The Respondent claims never to have “disappeared with his truck for
48 hours”. Respondent claims to have been terminated because he refused a
return trip, wanting a day off after 7 consecutive days on duty.
[94] The Respondent also claims
that the Adjudicator has the power to determine the appropriate remedy for
unlawful dismissals.
Analysis
[95] The Court finds the Adjudicator
made reviewable errors in determining that Respondent was entitled to
compensation as he applied section 198 and 230(1)(b) of the CLC. The
Adjudicator needed to make a preliminary finding of wrongful dismissal before
granting relief therefore. Such a determination is absent in the decision. This
constitutes a reviewable error.
[96] Secondly, in coming to
an amount for unpaid statutory holidays, the Adjudicator erred as Respondent
was actually paid for his work during statutory holidays but he did not receive
the fifty percent increase to which he was entitled. This misconstruction of
facts constitutes another reviewable error.
[97] In view of these
findings the 4% for vacation pay must also be revised.
VI. CONCLUSION
[98] The Application for
judicial review is therefore allowed in part and the issue of compensation for
wrongful dismissal, statutory holidays and applicable 4% to all wages earned
need to be calculated after a determination is made by a different Adjudicator
on the issue of wrongful dismissal.
[99] The Applicant has also
raised the question of costs in this instance. The Court, in view of its
conclusion, makes the following determination as to costs. Each party bears its
own costs.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
This
application for judicial review is allowed in part;
2.
The Adjudicator’s
decision respective to lis pendens and to the effect that the Respondent
was an employee of Transport Vares Inc. is confirmed;
3.
However,
compensation for wrongful dismissal, statutory holidays and applicable 4% to
all wages earned need to be calculated after a determination is made by a
different Adjudicator on the issue of wrongful dismissal;
4.
Each
party bears its own costs.
"André F.J.
Scott"
ANNEX
Canada Labour
Code (RSC, 1985, c L-2)
Holiday work in continuous
operation employment
198. An employee employed in a
continuous operation who is required to work on a day on which the employee is
entitled under this Division to a holiday with pay
(a) shall be paid, in addition to his regular
rate of wages for that day, at a rate at least equal to one and one-half times
his regular rate of wages for the time that the employee worked on that day;
(b) shall be given a holiday and pay in
accordance with section 196 at some other time, which may be by way of addition
to his annual vacation or granted as a holiday with pay at a time convenient to
both the employee and the employer; or
(c) shall, where a collective agreement that
is binding on the employer and the employee so provides, be paid in accordance
with section 196 for the first day on which the employee does not work after
that day.
Notice or wages in lieu of notice
230. (1) Except where subsection
(2) applies, an employer who terminates the employment of an employee who has
completed three consecutive months of continuous employment by the employer
shall, except where the termination is by way of dismissal for just cause, give
the employee either
(a) notice in writing, at least two weeks
before a date specified in the notice, of the employer’s intention to terminate
his employment on that date, or
(b) two weeks wages at his regular rate of
wages for his regular hours of work, in lieu of the notice.
Appointment of referee
251.12 (1) On receipt of an
appeal, the Minister shall appoint any person that the Minister considers
appropriate as a referee to hear and adjudicate on the appeal, and shall
provide that person with
(a) the payment order or the notice of
unfounded complaint; and
(b) the document that the appellant has
submitted to the Minister under subsection 251.11(1).
Powers of referee
(2) A referee to whom an appeal has been referred by
the Minister
(a) may summon and enforce the attendance of
witnesses and compel them to give oral or written evidence on oath and to
produce such documents and things as the referee deems necessary to deciding
the appeal;
(b) may administer oaths and solemn affirmations;
(c) may receive and accept such evidence and
information on oath, affidavit or otherwise as the referee sees fit, whether or
not admissible in a court of law;
(d) may determine the procedure to be
followed, but shall give full opportunity to the parties to the appeal to
present evidence and make submissions to the referee, and shall consider the
information relating to the appeal; and
(e) may make a party to the appeal any person
who, or any group that, in the referee’s opinion, has substantially the same
interest as one of the parties and could be affected by the decision.
Time frame
(3) The referee shall consider an appeal and render a
decision within such time as the Governor in Council may, by regulation,
prescribe.
Referee’s decision
(4) The referee may make any order that is necessary to
give effect to the referee’s decision and, without limiting the generality of
the foregoing, the referee may, by order,
(a) confirm, rescind or vary, in whole or in
part, the payment order or the notice of unfounded complaint;
(b) direct payment to any specified person of
any money held in trust by the Receiver General that relates to the appeal; and
(c) award costs in the proceedings.
Copies of decision to be sent
(5) The referee shall send a copy of the decision, and
of the reasons therefor, to each party to the appeal and to the Minister.
Order final
(6) The referee’s order is final and shall not be
questioned or reviewed in any court.
No review by certiorari, etc.
(7) No order shall be made, process entered or proceeding
taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question,
review, prohibit or restrain a referee in any proceedings of the referee under
this section.
Civil
code of quÉbec (L.Q., 1991, c. 64)
1619. An indemnity may be added to the
amount of damages awarded for any reason, which is fixed by applying to the
amount of the damages, from either of the dates used in computing the interest
on them, a percentage equal to the excess of the rate of interest fixed for
claims of the State under section 28 of the Tax Administration Act (chapter
A-6.002) over the rate of interest agreed by the parties or, in the absence of
agreement, over the legal rate.
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