Digests

Dynamex Canada Inc. v. Mamona

A-241-02

2003 FCA 248, Sharlow J.A.

4/6/03

31 pp.

Appeal from Trial Division decision (Dynamex Canada Inc. v. Mamona (2002), 218 F.T.R. 269) dismissing application for judicial review of referee's decision under Canada Labour Code, s. 251.12 that respondents employees of appellant from 1997 to 1999--During relevant periods, claimants provided courier, messenger, delivery services, each pursuant to own contract with Dynamex--Many common features in contract, including statement complainant independent contractor-- Claimants wore uniforms leased from Dynamex, provided own vehicles, required to display Dynamex logos, trade-marks on vehicles, required to lease mobile radio unit from Dynamex, claimants paid commission based on amounts invoiced to customers, bonded at own cost--Restrictive covenants precluding working for others--All claimants filed income tax returns on basis self-employed, claimed vehicle expenses as deductions--Treated as self-employed for purposes of Employment Insurance Act, Canada Pension Plan --In 1998, Canadian Union of Postal Workers certified as bargaining agent for Dynamex's owner/drivers--Claimants asserted claim for vacation, holiday pay, on basis they were employees, not independent contractors--Inspector allowed claims--Application for judicial review of referee's decision dismissed by Trial Division judge--Appeal dismissed--Main issue whether claimants employees of Dynamex during relevant periods--Standard of review--Reviewing Judge herein concluded referee's decision should be reviewed on standard of patent unreasonableness--Case of U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 authority for broad proposition pragmatic and functional approach may lead to conclusion tribunal not empowered to adopt statutory interpretation wrong in law--Pragmatic, functional analysis more fully developed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: (1) purpose of legislation, provisions in issue; (2) nature of problem; (3) expertise of tribunal relative to that of reviewing court; (4) presence or absence of privative clause or statutory right of appeal--(1) Canada Labour Code, Part III providing protection to individual worker, creating certainty in labour market by requiring basic employment practices; requiring employers to establish employment conditions meeting minimum standards set out in legislation--Also meant to facilitate efficient resolution of disputes arising from provisions; by providing tools to aid settlement of disputes by agreement, and by providing recourse to designated officials --(2) Determination of status of claimants as employees question upon which jurisdiction of referee to grant remedy under Labour Code, s. 251.12 depended--In the language of Bibeault, "jurisdictional question"--Identification of principles to be applied in determining whether claimants employees of Dynamex question of law; application of those principles to facts herein question of mixed fact, law--(3) Expertise involved in deciding questions of employment status on common law principles shared by many courts, tribunals-- Referees appointed under s. 252.12 can make no claim to special expertise in determining such questions--(4) Decision herein not subject to appeal; protected by privative clauses in Canada Labour Code, s. 251.12(6), (7)--Generally this would point to high degree of deference--Therefore, determination of referee as to common law principle applicable to determination of status of person as employee should be reviewed on standard of correctness--However, manner in which principles applied to facts should be reviewed on standard of reasonableness--Thus, if referee's reasons disclose no error of law, and conclusion reasonably supportable on record after somewhat probing examination, decision will stand--Here, referee's analysis of relevant common law principles disclosing no error of law--As to referee's application of principles to facts, decision reasonably supported by evidence--Although claimants characterized as independent contractors in contracts, such contractual term cannot prevail if evidence of actual relationship between parties pointing to opposite conclusion, as here--Also, person whose employment status ambiguous may well find it advantageous to take inconsistent positions in different proceedings--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 251.12 (as enacted by S.C. 1993, c. 42, s. 37)--Employment Insurance Act, S.C. 1996, c. 23--Canada Pension Plan, R.S.C., 1985, c. C-8.