Prti Transport Inc. v. Canada Owner-Operator Workers Association, Local 2001, docket A-223-96

     A-223-96

CORAM:      THE CHIEF JUSTICE

         STONE, J.A.

         LINDEN, J.A.

Between:

     PRTI TRANSPORT INC.

     Applicant

     - and -

     CANADIAN OWNER-OPERATOR WORKERS

     ASSOCIATION, LOCAL 2001,

     Respondents

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Vancouver, BC

     on Monday, March 17, 1997)

STONE, J.A.

     The appellant has failed to persuade the Court that it should interfere with the decision of the Canada Labour Relations Board of February 13, 1996, by which it amended its certification order of February 13, 1995, by including as employees appropriate for collective bargaining "drivers of dependent contractors" employed by the applicant, excluding office and sales staff and terminal managers.

     The terms "employer", "employee" and "dependent contractor" are defined in subsection 3(1) of the Canada Labour Code¹.

     In our view the Board acted within its jurisdiction and did not make a patently unreasonable decision by amending the certification order so as to allow drivers of dependent contractors to be included in the unit that it considered would remain appropriate for collective bargaining.

     The section 28 application will be dismissed.

                             (Sgd.) "A.J. Stone"

                                 J.A.

¹      The words "employee" and "employer" are defined as follows:
"employee" means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations;
"employer" means(a)      any person who employs one or more employees, and(b)      in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with the dependent contractor to such extent that the arrangement that governs the performance of services by the dependent contractor for that person can be the subject of collective bargaining;
The term "dependent contractor" is defined in part as follows:"dependent contractor" means(a)      the owner, purchaser or lessee of a vehicle used for hauling, other than on rails or tracks, livestock, liquids, goods, merchandise or other materials, who is a party to a contract, oral or in writing, under the terms of which he is      (i)      required to provide the vehicle by means of which he performs the contract and to operate the vehicle in accordance with the contract, and      (ii)      entitled to retain for his own use from time to time any sum of money that remains after the cost of his performance of the contract is deducted from the amount he is paid, in accordance with the contract, for that performance,
         . . . . .
(c)      any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that he is, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person;"