Legal tests to be applied to determine employment status were not considered

Federal appeal | Employment

EMPLOYMENT RELATIONSHIP

Legal tests to be applied to determine employment status were not considered

This was appeal and cross-appeal from judge’s decision varying assessments. Appellant engaged truck drivers to provide services to client. Respondent determined that 96 truck drivers engaged by appellant in 2002, 2003 and 2004 were employees. Respondent assessed appellant for premiums payable under Employment Insurance Act (Can.), and contributions payable under Canada Pension Plan. Appellant appealed. Judge divided workers into two groups. One group was made up of 43 drivers who had signed agreement with appellant and other group was 53 drivers for whom there was no evidence of written agreement. Judge concluded that 53 drivers were employees of appellant but other 43 drivers were not. Appeal allowed; cross-appeal dismissed. Judge did not err in considering two groups of drivers separately. Judge appeared to have considered that any driver who had signed one of 43 agreements was incorporated drivers but that finding was based on misapprehension of facts. Of 43 drivers who signed agreements only 2 were incorporated drivers. As result of judge’s approach to 43 drivers who had signed agreements, legal tests to be applied to determine whether they were employees were not considered. Agreement signed by drivers contained clauses that suggested common intention that driver would be engaged as person carrying on own business but other factors must be considered. Appellant did not supervise drivers. Drivers did not provide own trucks or equipment or bear any costs of operating trucks. Contracts provided right to driver to substitute another driver at own cost but there was no evidence that any driver exercised right. Drivers did not bear any financial risk related to any investment in trucks or equipment. Drivers did not bear any responsibility for investing in anything that was required to fulfill contractual obligations or for managing work. Drivers did not negotiate rates of pay. Factors, on balance, weighed in favour of conclusion that drivers who signed agreements with appellant were employees, in contradiction to intention clauses. With respect to remaining 53 workers who did not sign agreements, judge’s conclusion that drivers were not self-employed was reasonable. Judge did not make error of law or palpable or overriding error of fact.

TBT Personnel Services Inc. v. Canada (Sep. 22, 2011, F.C.A., Sharlow, Pelletier and Stratas JJ.A., File No. A-388-10) 207 A.C.W.S. (3d) 477 (19 pp.).

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

From ignored to a nation-to-nation relationship: Jason Madden’s 20 years advocating for Metis rights

Ontario Superior Court of Justice welcomes new judges Colin Stevenson and Gilead Kay

Ontario Superior Court upholds award of costs exceeding the damages in a personal injury case

Ontario Superior Court resolves estate dispute between siblings by passing over a sister as trustee

Erika Chamberlain steps down as dean of Western Law

Ont. CA orders new trial in pedestrian collision case due to unfair bad character evidence

Most Read Articles

Erika Chamberlain steps down as dean of Western Law

Ont. CA orders new trial in pedestrian collision case due to unfair bad character evidence

Ontario Superior Court of Justice welcomes new judges Colin Stevenson and Gilead Kay

From ignored to a nation-to-nation relationship: Jason Madden’s 20 years advocating for Metis rights