Yellow Cab Ltd. v. Board of Industrial Relations et al., [1980] 2 SCR 761

Supreme Court of Canada

Yellow Cab Ltd. v. Board of Industrial Relations et al., [1980] 2 S.C.R. 761

Date: 1980-10-07

Yellow Cab Ltd. Appellant;

and

Board of Industrial Relations, A. Sadownik, B. Dunbeck, Alberta Union of Provincial Employees and Yellow Cab Drivers’ Association Respondents.

1980: June 24; 1980: October 7.

Present: Martland, Ritchie, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Administrative law—Certiorari—Privative clause—Alleged error on face of record—Whether or not Board’s decision reviewable in face of privative clause—Labour law—Master and servant—Determination of existence of employer-employee relationship within meaning of The Alberta Labour Act—Definition of terms—Details surrounding relationship of taxi drivers to taxi company—The Alberta Labour Act, 1973 (Alta.), c. 33, ss. 1(d), (e), (h), 35(1), (2), 50(1), 51(1), (2),(3).

This appeal to this Court was from a judgment of the Court of Appeal dismissing an appeal from an order dimissing an application in the nature of certiorari brought at the instance of Yellow Cab Ltd. to quash a decision of the Board of Industrial Relations constituted under The Alberta Labour Act. The proceedings before the Board originated in a written complaint to it by respondents Sadownik and Dunbeck, alleging against Yellow Cab Ltd. unfair labour practices in contravention of that Act. After the Board determined that the relationship of employer and employees did exist between parties, the taxi company proceeded by way of application in the nature of certiorari seeking to quash the decision on the ground that the Board had erred in law and had exceeded its jurisdiction in reaching its conclusion.

The question of whether or not it was an error of law to conclude that an employer‑employee relationship existed between parties within the meaning of the Act lay at the threshold of this appeal, making it necessary to consider the statutory powers imposed on the Board before proceeding to analyse the factual background. The Board concluded that the decisions which it made under authority of s. 50(1) were to be treated as final and that the terms of the section were tantamount to a privative clause only subject to attack on the ground of

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lack of jurisdiction. The contention that the Board’s decision disclosed “an error in law” on the face of the record could not prevail if s. 51 were construed as a privative clause.

Whether or not the taxi drivers were in receipt of wages as defined by the Act depended on the facts surrounding their relationship with the company. Among these facts were details relating to the ownership and use of the cars and the responsibility for their expenses, the extent and nature of the company’s control over the drivers, and the privileges given to and the obligations expected of the drivers by the company.

Held: The appeal should be allowed.

The Board is accorded exclusive jurisdiction to exercise all the powers accorded it by the Act, including the s. 50 power to make the decision which it made in this case, but the effect of the exercise of that jurisdiction is controlled by the provisions of s. 51 of the Act. Although subss. 51(1) and (2) clearly reinforce respondents’ contention to protect the decisions of the Board and although the language used is similar to that employed in all privative clauses, subs. 51(3) makes it plain that, notwithstanding the added force which the first two subsections accord to the Board’s decision, those privative provisions do not extend to an application for certiorari or mandamus. Because of subs. 51(3) there is no privative clause when the remedy sought is certiorari and where the application therefor is filed and served no later than thirty days after the Board’s decision. This Court is clothed with authority to grant certiorari if there is an error of law on the face of the record.

The definition section of the Act is all important because an employer-employee relationship must be established before the Board can deal with this case at all. In its definition of the word “employer” in s. 1(e), the Act employs the word “means” and not the word “includes”. It follows that the definition is to be construed as being exhaustive and that, in so far as the Board adopted common law principles defining “employer” which were at a variance with the language of the section, there was an error in law. The definition of “employee” in s. (d) is similarly exhaustive and the meaning of “employee” for the purpose of the statute is confined to persons who are “in receipt of or entitled to wages”.

As the existence of an employer-employee relationship depends upon the payment of wages by the employer to the employee, it becomes central to the final determina-

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tion of the issue to consider the statutory definition of wages in s. 1(h). Although there is no express provision in the statute requiring that wages and other remuneration within the meaning of this section must come directly from the employer, this must have been the intention of the Legislature when the Act is read as a whole. Whether or not the taxi drivers can be said to be in receipt of wages within the meaning of this definition must depend on all the facts surrounding their relationship with the taxi company. The agreed facts indicate that the complainant drivers are lessees of the company’s vehicles for which they pay a fixed rental and that there is no point in the relationship of the company and drivers at which the former pays wages to the latter. The payments made by the company are largely, if not entirely, provided towards the protection of its own property which it leased to the drivers. As no wages flowed from the employer-owner to the lessee-driver, the relationship of employer and employee did not exist here within the meaning of the statute.

Board of Industrial Relations of the Province of Alberta et al. v. Stedelbauer Chevrolet Oldsmobile Ltd., [1969] S.C.R. 137, referred to.

APPEAL from a judgment of the Court of Appeal of Alberta[1], dismissing an appeal from an order made by Dechene J. dismissing an application in the nature of certiorari brought at the instance of Yellow Cab Ltd. to quash a decision of the Board of Industrial Relations constituted under The Alberta Labour Act. Appeal allowed.

J.W.K. Shortreed, Q.C., for the appellant.

R.T.G. McBain, Q.C., for the respondents.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Alberta dismissing an appeal from an order made by Dechene J., whereby he had dismissed an application in the nature of certiorari brought at the instance of Yellow Cab Ltd. to quash a decision of the Board of Industrial Relations constituted under The Alberta Labour Act, 1973 (Alta.), c. 33 (hereinafter called the Act).

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The origin of these proceedings and the nature of the hearing before the Board are well described in the reasons for judgment of Mr. Justice Clement rendered on behalf of the Court of Appeal of Alberta and I am prepared to adopt the following portion of his judgment as an accurate description of the circumstances. He there said:

The proceedings before the Board originated in a written complaint to it by the respondents Sadownik and Dunbeck, alleging against Yellow Cab unfair labour practices in contravention of provisions in s. 153:

153. (1) No employer or employers’ organization and no person acting on behalf of an employer or employers’ organization shall

(a) participate in or interfere with the formation or administration of a trade union, or

…

(3) No employer or employers’ organization and no person acting on behalf of an employer or employers’ organization shall

(a) refuse to employ or continue to employ any person or discriminate against any person in regard to employment or any term or condition of employment because the person

(i) is a member of a trade union, or

(d) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a trade union….

The authority to make such a complaint to the Board is found in s. 157(1):

157. (1) Subject to subsections (2) and (3), any employer, employers’ organization, employee, trade union or other person may make a complaint in writing to the Board that there has been or is a failure to comply with sections 153 to 156 or any provision thereof.

The Board decided to inquire itself into the matters of complaint, as it is empowered to do by s. 158(3), and notice of a hearing was given to interested parties. The powers of the Board following such an inquiry are given by s. 158(5):

158. (5) Where the Board is satisfied after an inquiry that an employer, employers’ organization, employee,

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trade union or other person had failed to comply with sections 153 to 156 or any provision thereof, the Board

(a) shall issue a directive to the employer, employers’ organization, employee, trade union or other person concerned to cease doing the act in respect of which the complaint was made;

Additional powers are given to the Board by further paragraphs of subs. (5), but there is no advantage in detailing them.

On the opening of the hearing counsel for Yellow Cab made a preliminary objection that an “employer-employee” relationship did not exist between Yellow Cab and the complainants, and therefore the Board had no power to deal with the complaints. On this, the Board’s decision notes:

It was agreed that before the Board deals with the alleged unfair labour practice, the Board must first determine whether there is an employer-employee relationship between the parties. On this understanding the Board heard the evidence and submissions of the parties. [The italics are my own]

The Board, having determined that the relationship of employer and employees did indeed exist between the parties, the taxi company proceeded by way of an application in the nature of certiorari seeking to quash this decision on the ground that the Board had erred in law and exceeded its jurisdiction in reaching its conclusion.

It will be seen that the question of whether or not, in the circumstances of this case, it was an error of law to conclude that an employer-employee relationship did in fact exist between the parties within the meaning of the Act, lies at the threshold of this appeal and it becomes necessary to consider the statutory powers imposed on the Board before proceeding to analyze the factual background which has, happily, been made the subject of agreement between the parties.

Pursuant to s. 50(1) of the Act:

50. (1) The Board is empowered to decide for the purposes of this Part whether:

(a) a person is an employer;

(b) a person is an employee;

…

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The Board concluded that the decisions which it made under the authority of this section were to be treated as final and not subject to appeal and that the terms of the section were tantamount to a privative clause only subject to attack on the ground of lack of jurisdiction.

This proposition might afford a conclusive answer to the appellant’s contention that the Board’s decision disclosed an “error in law” on the face of the record, because if s. 50 was to be construed as a privative clause, such a contention could not prevail and the Board’s decision could only be questioned on jurisdictional grounds.

I have no doubt that the Board is accorded exclusive jurisdiction to exercise all the powers accorded to it by the Act, including the s. 50 power to make the decision which it made in this case, but I am equally satisfied that the effect of the exercise of that jurisdiction is controlled by the provisions of s. 51 of the Act which read as follows:

51. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Part and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Board thereon is final and conclusive for all purposes, but the Board may, at any time, reconsider any decision, order, directive, declaration or ruling made by it and vary or revoke the decision, order, directive, declaration or ruling.

(2) No decision, order, directive, declaration, ruling or proceeding of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court (whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise) to question, review, prohibit or restrain the Board or any of its proceedings.

(3) Notwithstanding subsections (1) and (2), a decision, order, directive, declaration, ruling or proceedings of the Board may be questioned or reviewed by way of an application for certiorari or mandamus if an application therefor is filed with the Court and served on the Board no later than 30 days after the issue of the

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Board’s decision, order, directive, declaration or ruling or reasons in respect thereof, whichever is later.

The first two subsections of this section clearly reinforce the respondents’ contention as to the legislative intent to protect the decisions of the Board and the language used in those subsections is similar to that employed in all privative clauses, but subs. (3) of s. 51 makes it plain, in my view, that notwithstanding the added force which the first two subsections accord to the Board’s decision, these privative provisions do not extend to an application for certiorari or mandamus. I think that the decisions made by the Board under s. 50(1) are subject to the following provisions of s. 51(3):

…a decision, order, directive, declaration, ruling or proceeding of the Board may be questioned or reviewed by way of an application for certiorari or mandamus if an application therefor is filed with the Court and served on the Board no later than 30 days after the issue of the Board’s decision,…

and that there is therefore no privative clause when the remedy sought is certiorari and where, as in the present case, application therefor is filed and served no later than thirty days after the issue of the Board’s decision. Hence the ability of this Court and its powers to interfere with the decisions are those which are outlined by Martland J. in The Board of Industrial Relations of the Province of Alberta et al. v. Stedelbauer Chevrolet Oldsmobile Ltd., [1969] S.C.R. 137, at pp. 142-3 where he said:

The appellants, before this Court, did not seriously dispute the conclusion of law reached by both the Courts below in respect of the interpretation of the union’s constitution. Their position was that the error in law by the Board would not warrant the quashing of its order because it did not relate to the Board’s jurisdiction. In the present case, it was said, the Board’s decision was in respect of a matter specifically referred to it by the statute and it could not be disturbed because, in reaching it, there had been an error of law.

I am not in agreement with this submission. The Alberta Labour Act does not contain a privative section, such as that contained in the British Columbia Workmen’s Compensation Act, R.S.B.C, c. 370, s. 76(1), referred to in the judgment of this Court in Farrell v.

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Workmen’s Compensation Board [1962] S.C.R. 48, giving to the Board exclusive jurisdiction to determine all questions of fact and law and prohibiting removal of proceedings into any Court by certiorari. The question, in this case, is as to the extent to which the proceedings of an administrative Board may be reviewed by way of certiorari.

In my opinion, such a review can be made, not only on a question of jurisdiction, but in respect of an error of law on the face of the record. That certiorari would issue to quash the decision of a statutory administrative tribunal for an error of law on the face of the record, although the error did not go to jurisdiction, was clearly stated in R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw [1951] 1 K.B. 711, approved, an appeal, [1952] 1 K.B. 338. That case was referred to by Kerwin J. (as he then was) in Toronto Newspaper Guild v. Globe Printing Company [1953] 2 S.C.R. 18, at 24.

I am therefore of opinion that this Court is clothed with authority to grant certiorari if there is an error of law on the face of the record.

It must be remembered that the Act can only be properly construed when it is read as a whole, and as I am of opinion that an employer-employee relationship must be established before the Board can deal with this case at all, it follows that the definition section of the Act is all important. That section defines employer in the following terms:

1. In this Act…

(e) “employer” means a person, corporation, partnership or group of persons who

(i) has control and direction over an employee, or

(ii) has control over the manner in which work or services are provided or done by an employee, or

(iii) is responsible directly or indirectly for the employment of an employee, or

(iv) is responsible for the payment of wages to an employee;

It is significant that the Act employs the word “means” in this definition and not the word “includes” and it follows, in my view, that the definition is to be construed as being exhaustive and that in so far as the Board adopted common law principles defining “employer” which were at variance with the language of the section, there

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was an error in law. In the view of the Court of Appeal, the Board’s reliance on the common law was limited to considering the scope of the words “control and direction” in relation to “the manner in which work or services are provided or done by an employee”. The word “control” bears no statutory definition and I agree with the Court of Appeal that there was no error of law on the part of the Board in seeking assistance from the common law in determining the meaning to be given to this word in the section.

The inquiry however does not end here. It will be seen that s. 1 (e) is entirely concerned with the relationship between the “employer” and an “employee” and that it therefore becomes essential to consider the statutory definition of this latter word. In considering the meaning to be given to the words “control and direction” as used in s. 1(e), it is to be borne in mind that what is under consideration is control and direction over an “employee”. “Employee” is defined under s. 1(d) of the Act as follows:

(d) “employee” means a.person employed by an employer to do work or provide services of any nature who is in receipt of or entitled to wages;

In my view this definition is also exhaustive and it confines the meaning of “employee” for the purpose of the statute to persons who are “in receipt of or entitled to wages”. It appears to me that an employer and employee relationship can only exist where the employee is “in receipt of or entitled to wages”, the payment of which is the responsibility of the employer.

In my opinion the scheme of the Act, which is repeatedly indicated in various sections referred to by the appellant, is predicated on the “wages” therein referred to being wages which flow directly from an employer to an employee, This is made manifest for example by s. 35 of the Act which provides:

35. (1) A period of employment for computation of wages earned shall not be longer than one calendar month, or such other period as the Board may fix.

(2) Each employer shall pay to each employee within 10 days after the expiration of each period of employment established for computation of wages earned

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during which the employee has been employed, all wages earned by the employee within that period.

(3) Where the employment of an employee is terminated by the employer, all wages earned by the employee shall be paid to him by his employer upon the termination of the employment.

As the existence of an employer-employee relationship in my view depends upon the payment of wages by the employer to the employee, it becomes central to the final determination of the issue raised by this appeal to consider the statutory definition of the word “wages” which is contained in s.1(h) and reads as follows:

(h) “wages” includes any salary, pay, overtime pay and any other remuneration for work or services however computed, but does not include tips or other gratuities.

It is pointed out on behalf of the respondents that there is no express provision in the statute requiring that wages and other remuneration within the meaning of this section must come directly from the employer but, as I have indicated, I adopt the view that when the Act is read as a whole this must have been the intention of the Legislature. Whether or not the taxi drivers in the present case can be said to be in receipt of wages within the meaning of this definition must depend on all the facts surrounding their relationship with the taxi company and these have been conveniently set out in the judgment of the Court of Appeal as follows:

At the May 4th, 1978 hearing, Counsel agreed to a number of facts as alleged in Mr. McBains submission with respect to Company drivers, including the following: (The italics are my own.)

a. He drives a company owned car which is rented from the company on a daily or weekly basis,

b. The Company applies for and provides the Alberta registration and license plate,

c. The Company applies for and provides the City of Edmonton Taxi License,

d. The Company pays for both of the above mentioned licenses,

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e. Automobile insurance is paid by and in the name of the Company,

f. The cars have the yellow and black colours of the Company painted on them,

g. He may use stands set aside for the exclusive use of Yellow Cab taxis as per Section 14(1)(a) of the Edmonton Taxicab By-law,

h. The Company pays the Unemployment Insurance contributions for each driver, based on a rate of $30.00 per shift,

i. The Company encourages drivers to wear Yellow Cab uniforms at three stands; the Edmonton Plaza, The Chateau Lacombe and the International Airport,

j. Due to the nature of the work there is little supervision necessary,

k. Gas is bought from the Company,

I. Charge slips bear the Company name,

m. The Company is responsible for collection of all charges,

n. A record consisting of name, address, photograph, license, permit number, telephone number and driving record is kept of each Company driver by the Company,

o. Discipline may vary for breaches of Company rules, but it may include termination,

p. The Company pays for all expenses excluding gas but including oil and maintenance of automobile.

The following additional facts were supplied by Mr. Thiessen, the President of Yellow Cab Ltd. and summarized by the Board as follows:

Mr. Thiessen testified that the Company does not pay any money other than cash for charge slips to the drivers and in fact the drivers pay the Company, pursuant to the Rental Agreement. Mr. Thiessen also testified that the Company has exclusive taxi rights at the International Airport and at the major hotels including the Chateau Lacombe, Hotel Macdonald and the Edmonton Plaza. It is at these major stands that the Company attempts to maintain a strict code of dress. Mr. Thiessen also testified that the drivers themselves do not pay any money to Transport Canada for the exclusive airport stand, nor do they pay any monies directly to the hotels for use of those stands. The evidence also indicated that the drivers have no direct stand rental agreements, either at the stands indicated or at any other Yellow Cab stand.

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The Board expressed the opinion that the fact that the company provided the opportunity for the drivers to get their remuneration was equivalent to the payment of wages within the statutory definition by the company, but in my opinion the agreed facts indicate that the complainant drivers are lessees of the company’s vehicles for which they pay a fixed rental and that there is no point in the relationship of the company and the drivers at which the former pays wages to the latter. The money earned by the taxi drivers is paid to them by their passengers and they in turn pay a rental to the company for the use of the vehicles in which the passenger was carried and for access to the company’s facilities, which include the use of taxi stands which are set aside for the exclusive use of the company’s taxis in accordance with the Edmonton Taxicab By-law.

The company pays for the Edmonton taxi licences on the rented vehicles and automobile insurance is paid by and in the name of the company. On analysis it will be seen that the payments made by the company are largely if not entirely provided towards the protection of its own property while it is leased to the drivers. The provision of registration and licence plates and the payment of licence fees is an obligation of the owner rather than the lessees of the vehicles and the expenses for maintenance of the vehicles, apart from the provision of gasoline, is clearly in the interest of the owner. It is true that an examination of the agreed facts discloses that the company pays unemployment insurance contributions for each driver, but this can hardly be said to be equivalent to “wages”.

As I take the view that no wages flow from the employer-owner to the lessee driver, I cannot find that the relationship of employer and employee existed here within the meaning of the statute.

For all these reasons I would allow this appeal, set aside the judgment of the Alberta Court of Appeal and of Mr. Justice Dechene and the decision of the Board of Industrial Relations of Alberta. The appellant is entitled to its costs throughout.

Appeal allowed with costs.

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Solicitors for the appellant: Shortreed Shoctor, Edmonton.

Solicitors for the respondents, A. Sadownik and B. Dunbeck: Barron-McBain, Calgary.

Solicitors for the respondent, Board of Industrial Relations: Sims, Philp & Kent, Edmonton.