2012 NBCA 18, 2012 NBCA 18

COURT OF APPEAL OF NEW BRUNSWICK 82-11-CA CANADA POST CORPORATION (Appellant) APPELLANT SOCIÉTÉ CANADIENNE DES POSTES (Appelante) APPELANTE - and - - et - EDITH CARROLL (Claimant) RESPONDENT EDITH CARROLL (Demanderesse) INTIMÉE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION OF NEW BRUNSWICK RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL DU NOUVEAU-BRUNSWICK INTIMÉE Canada Post Corporation v. Carroll and Workplace Health, Safety and Compensation Commission of New Brunswick, 2012 NBCA 18 Société canadienne des postes c.

Carroll et Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail du Nouveau- Brunswick, 2012 NBCA 18 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Richard CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Richard Appeals Tribunal of the Workplace Health, Safety and Compensation Commission of New Brunswick: December 29, 2010 Tribunal d’appel de la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail du Nouveau-Brunswick : Le 29 décembre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: November 15, 2011 Appel entendu : Le 15 novembre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Turnbull The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Richard Counsel at hearing: For the appellant Canada Post Corporation : Rebekah L.

Powell The respondent Edith Carroll appeared in person For the respondent Workplace Health, Safety and Compensation Commission: David O’Brien, Q.C. Avocats à l’audience : Pour l’appelante la Société canadienne des postes : Rebekah L. Powell. L’intimée Edith Carroll a comparu en personne . Pour l’intimée la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : David O’Brien, c.r. THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by ROBERTSON, J.A. I.

Overview [ 1 ] The Appeals Tribunal, established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14 ( WHSCC Act ), concluded the respondent claimant was an employee of the appellant, Canada Post Corporation, within the meaning of the Government Employees Compensation Act , R.S.C. 1985, c. G-5 ( GECA ), and not an independent contractor. At the time of her injury, the claimant was working as an “ergonomic paid assistant” to rural and suburban mail carriers (RSMCs). The

latter are unionized employees of Canada Post. RSMCs deliver mail to roadside mailboxes using their own vehicles. Paid assistants sit in the passenger seat and place mail in the boxes , thereby relieving the driver from the task of having to reach over while operating the vehicle. As a result of the Appeals Tribunal’s ruling, the claimant was eligible to receive, and has received, compensation benefits with respect to work-related injuries in accordance with New Brunswick’s Workers’ Compensation Act , R.S.N.B. 1973, c.

W-13. [ 2 ] In concluding the claimant qualifies as an “employee”, the Appeals Tribunal applied the Supreme Court of Canada’s analytical framework, articulated in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. , 2001 SCC 59 , [2001] 2 S.C.R. 983, and a decision of this Court rendered six months prior to the Supreme Court precedent: Joey’s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission) , 2001 NBCA 17 , 239 N.B.R. (2d) 300; leave to appeal to SCC refused (2002), 250 N.B.R. (2d) 400, [2001] S.C.C.A.

No. 425 (QL) . [ 3 ] Canada Post appeals the Appeals Tribunal’s decision. With respect to the applicable standard of review, this Court has consistently followed the general understanding that no deference is owed to the Tribunal’s rulings on questions of law and to questions involving alleged breaches of the fairness duty. Correctness is the proper review standard. Questions of mixed law and fact are to be evaluated on the standard of “reasonableness”, while questions of fact are subject to the test of “palpable and overriding error”.

These points are discussed further at paragraph 18 of these reasons. [ 4 ] Canada Post argues the Appeals Tribunal erred in two material respects. First, the Appeals Tribunal overemphasized the factor of sub-delegation and failed to consider other indicia of employment. This allegation is a general attack on the Tribunal’s ultimate conclusion and brings into consideration the review standard of reasonableness. The second of the alleged material errors is tied to the fairness duty.

Canada Post alleges the Appeals Tribunal breached this duty by refusing to consider two tribunal decisions (one from Manitoba, the other from British Columbia). Those decisions were submitted to the Appeals Tribunal after the hearing, but before it released its decision. [ 5 ] Both administrative law decisions involve Canada Post workers who work closely with paid assistants (replacement drivers for RSMCs) in circumstances where there is no material difference in their respective terms of retention. In each instance, the claimant was declared an independent contractor that is to say, self-employed.

Canada Post relies on the two decisions to support two distinct propositions. First, Canada Post maintains that the “intention of the parties” is a relevant factor, but one which the Appeals Tribunal ignored. Second, Canada Post’s enabling statute, the Canada Post Corporation Act , R.S.C. 1985, c. C-10, evidences Parliament’s intention to treat workers such as the claimant as independent contractors, thereby narrowing the statutory scope of “employee” as defined under GECA and, correlatively, eliminating the broad or purposive approach normally adopted when interpreting workers’ compensation legislation.

Hence, Canada Post maintains the Appeals Tribunal also erred in adopting the purposive approach. As these allegations raise questions of law, the applicable review standard is correctness. [ 6 ] In addition to the two tribunal decisions mentioned above, Canada Post continues to rely on decisions of the Tax Court of Canada, cited to the Appeals Tribunal and discussed in its reasons. Each case held that replacement drivers for rural mail carriers are independent contractors and therefore not engaged, for example, in insurable employment under the Employment Insurance Act , S.C. 1996, c. 23.

In each case, the Tax Court looked at the intention of the parties as a relevant factor and at the impact of the provisions of the Canada Post Corporation Act . Collectively, these decisions, and those of the workers’ compensation tribunals in Manitoba and British Columbia, lead one to legitimately question how a comparable worker in New Brunswick could be declared an employee so long as consistency remains a true hallmark of the law. The inconsistency can be attributed to several sources.

For purposes of deciding this appeal, I need only identify three. [ 7 ] The first source is tied to a preliminary question which the Appeals Tribunal addressed fully, but which is not under appeal to this Court. Let me explain. Having regard to the jurisprudence emanating from other provinces, the Appeals Tribunal concluded it possessed the “jurisdiction” to determine a claimant’s status under GECA . Canada Post had argued that a determination regarding employment status properly rested with the federal government and its human resources department.

Had the argument been accepted, one can reasonably presume that those persons performing the same work for or on behalf of Canada Post would be placed in the same category when it came to the question of employment status. But as Canada Post’s “jurisdictional argument” has yet to succeed in any province in which the issue has been raised, the general precedent remains. It is the obligation of each provincial commission and appeals tribunal to adjudicate on the matter of a claimant’s employment status.

Above all, it must be emphasized that this Court was not asked to go behind the finding that the provincial Commission retains the jurisdiction to make the initial assessment regarding employment status. (As to the jurisprudence regarding the preliminary issue, see Canadian Broadcasting Corporation v. Luo , 2009 BCCA 318 , [2009] B.C.J. No. 1559 (QL); Thomson v. Workers’ Compensation Board (Nova Scotia) , 2002 NSCA 58 , [2002] N.S.J. No. 207 (QL); Cape Breton Development Corporation v. Estate of James Morrison , 2003 NSCA 103 , [2003] N.S.J. No. 353 at para. 14 (QL) and Canada (Royal Canadian Mounted Police) v.

Rees , 2005 NLCA 15 , [2005] N.J. No. 103 (QL). As to whether the preliminary question is a “true jurisdictional” question, see Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] S.C.J. No. 61 (QL), in particular, para. 31.) [ 8 ] There is another logical explanation for the apparent inconsistency in the jurisprudence. The common law

framework is sufficiently flexible to allow reasonable persons to reach different conclusions based on similar fact patterns. This is so because the task at hand requires an examination and balancing of competing factors tied mostly to the application of common law principles. However, what truly renders the adjudicative process more difficult is the constant erosion of the classical employment model, upon which the common law principles developed.

Over the last 30 years, the movement has been away from full-time regular work of indefinite duration for time-based pay that qualifies for employee benefits, be they either public or private. Part of the movement is characterized by the engagement of part-time or casual workers and a restructuring of the working relationship so as to clothe workers with the air of being “self-employed”.

These modified forms of retention involve an absence of income security for workers and are pursued with the object of reducing employer costs by eliminating the obligation to participate in and contribute to the cost of national and provincial security schemes, including workers’ compensation. In response, most courts carefully scrutinize working relationships to ensure that employers are not unfairly disadvantaging workers by falsely labeling them “self-employed”.

In that vein, this Court has adopted a broad or purposive approach when construing legislation that extends benefits to employees only: Joey’s Delivery, supra . As a practical matter, the application of the purposive approach has the effect of tipping the balance in favour of the worker in cases of genuine doubt. [ 9 ] The third source of the inconsistency between what the Appeals Tribunal decided in this case and what has been decided in other judicial and administrative forums is tied to Canada Post’s argument that the Appeals Tribunal failed to take into account a relevant factor: the intention of the parties.

While there is judicial support for the proposition that the common intention of employer and worker is a relevant consideration when determining employment status, in truth, there is no compelling evidence of such an intention in the present case. Rather, Canada Post is attempting to establish that an employer’s unilateral declaration to treat workers as non-employees is a relevant consideration. In conformity with that declaration, Canada Post offers evidence that it has consistently treated paid assistants as non-employees (e.g. not providing them with T4 slips).

The Appeals Tribunal declared such evidence to be largely “self serving” and I am not prepared to declare it erred in so doing. Another reason for the inconsistency in the jurisprudence stems from the Appeals Tribunal’s implicit rejection of Canada Post’s argument that certain provisions of its enabling statute evidence Parliament’s intent to treat as non-employees those persons who perform functions similar or identical to those performed by the claimant in this case. In my view, the Tribunal did not err in so holding. Consequently, this case departs from those cases which hold otherwise.

Correlatively, it follows there is no basis for rejecting the application of a broad or purposive approach to the definition of employee found within GECA . Therefore, the Appeals Tribunal cannot be faulted for accepting that approach even though other decision-makers have concluded otherwise.

This is assuming that its application was necessary to tip the balance in favour of the claimant. [ 10 ] Finally, after concluding that the Appeals Tribunal’s analysis is not infected with an error of law, I conclude the Appeals Tribunal’s ruling falls within the review standard of reasonableness and, therefore, the appeal should be dismissed.

In brief, the Tribunal’s reasoning that led to the finding the claimant was not carrying on business on her own account, but rather was engaged as a casual or part-time employee being paid by Canada Post at an hourly rate of $12, falls within the description of reasonableness as articulated in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. This finding is entirely consistent with the Tribunal’s express finding that no apparent advantage would have accrued to the claimant had she been declared an independent contractor.

As the Appeals Tribunal so adroitly observed, it is unlikely the claimant’s work as a paid assistant qualified as a “marketable skill”. If one is going to argue the common law notion of “independent contractor” to sustain a finding that a worker is self-employed, the argument must have an air of reality – one that is informed by the underlying and general assumption that the independent contractor has more to gain as an entrepreneur than as an employee. II.

Background [ 11 ] Canada Post is a federally regulated corporation, established pursuant to the Canada Post Corporation Act , and a self-insured employer subject to GECA and, in turn, New Brunswick’s Workers’ Compensation Act . In short, New Brunswick administers the compensation scheme in accordance with the provincial legislation and federal employers must reimburse the Commission for the costs incurred. The respondent claimant, Ms. Carroll, was engaged sometimes as a replacement worker for an RSMC and sometimes as a paid assistant to an RSMC.

Prior to 2004, all mail carriers in rural areas were engaged by Canada Post as independent contractors rather than as employees. Effective 2004, their status changed. Canada Post accepted these workers as employees and entered into a collective agreement with their union. There are two other groups of workers whose duties flow from those performed by RSMCs. First, these rural mail carriers are authorized to find replacement workers/drivers on those days the rural carriers are unavailable to do the assigned task. Second, there is a group of workers who assist the rural carriers and their replacements.

These workers are labeled “ergonomic paid assistants”. This class of worker came into existence in 2006 because of problems with mailbox placement in rural areas, apparently due to disability-related issues. The paid assistants are retained to place mail in roadside mailboxes from the passenger side of the RSMC’s delivery vehicle, or that of the replacement driver, thereby relieving the driver from having to reach over the passenger seat and place mail in the roadside box. The evidence reveals that the use of paid assistants was to be a temporary measure, yet the positions have endured.

However, replacement workers and paid assistants continue to be treated as independent contractors, a fact confirmed by the provisions of the collective agreement between Canada Post and the RSMCs. As noted above, the claimant was sometimes engaged as a replacement mail carrier and, on other occasions, as a paid assistant. At the time the claimant suffered the rotator cuff injury, she was engaged as a paid assistant. The claimant effectively worked exclusively for Canada Post. [ 12 ] The claimant filed her claim with the New Brunswick Commission on September 18, 2007.

Human Resources and Skills Development Canada informed the Commission that it did not regard the claimant as an employee of Canada Post. The

Commission determined otherwise and went on to accept the claim. On January 27, 2009, Canada Post filed an appeal with the Appeals Tribunal, which was heard on June 17, 2010. As noted earlier, Canada Post raised a jurisdictional issue over which body had the authority to decide the employment status issue. In comprehensive reasons, the Appeals Tribunal concluded the Commission was the proper body to make that determination.

As to the employment status issue, the Appeals Tribunal made reference to the Tax Court jurisprudence, which had characterized replacement drivers/carriers as independent contractors and to the common law framework for deciding the issue, as reflected in the Supreme Court’s decision in Sagaz and this Court’s decision in Joey’s Delivery . [ 13 ] The Appeals Tribunal’s decision sets out the following unchallenged facts. Canada Post has never regarded replacement drivers and paid assistants as employees.

They do not receive employee benefits and are not subject to deduction for income tax, employment insurance, Canada Pension, union dues or other deductions required of employees who are treated as such by Canada Post. The claimant was paid at an hourly rate of $12. At the end of each year, Canada Post issues a T1204 slip to replacement carriers and assistants, as opposed to a T4 slip, which is issued to employees. Payment for services rendered by replacements and assistants is based on a system involving the submission of vouchers rather than periodic, salaried remuneration.

Those vouchers are submitted to a Canada Post supervisor. It is Canada Post which pays the replacement carriers and ergonomic paid assistants. In short, no money is exchanged between an RSMC and their replacement carriers or ergonomic paid assistants. The claimant was paid each month by Canada Post.

On the back of the vouchers are words to the effect that the person engaged is not to be regarded as an employee and that it is the responsibility of the person so engaged to obtain and maintain such workers’ compensation or other coverage as may be required in the province. [ 14 ] Once identified, replacement carriers and ergonomic paid assistants are provided with “unique contractor numbers”. Like other Canada Post employees, replacement carriers and assistants must obtain security clearance, but apparently they are routed through a different process and do not receive photo identification documents.

Replacement workers and ergonomic paid assistants also receive different training. Replacement drivers and paid assistants are under no obligation to accept any particular task. If they do accept an assignment, they must sign in and out at Canada Post’s “workstation”. They may accept or decline assigned work and they cannot be disciplined by Canada Post. Only the RSMCs possess the right to discipline. However, unlike RSMCs, replacement carriers and ergonomic paid assistants cannot sub-delegate an assigned task.

At the end of their service, these persons do not receive a standard Record of Employment, which is a condition precedent to the receipt of employment insurance benefits in Canada. [ 15 ] This is the point where the reader expects to see a

summary of the Appeals Tribunal’s reasoning and findings, in the circumstances of this case, it makes better sense to defer that task until discrete questions of law have been addressed and dealt with appropriately. The substance of the Appeal Tribunal’s decision is best dealt with when considering the challenge brought on the ground the decision fails to meet the review standard of reasonableness. III. Issues [ 16 ] In its Notice of Appeal, Canada Post alleges two errors on the part of the Appeals Tribunal. First, the Tribunal erred in finding the claimant to be an employee within the meaning of GECA .

Second, the Tribunal breached the duty of fairness in refusing to accept and consider two decisions tendered after the close of the appeal hearing. The first decision was rendered by the Manitoba Appeal Commission. It was released on the same day the appeal hearing in New Brunswick was concluded. The second decision emanates from the Workers’ Compensation Appeal Tribunal of British Columbia. It was released two and a half months after the closing of the New Brunswick hearing, but before the Appeals Tribunal released its decision. [ 17 ] Canada Post’s first issue was refined on appeal to this Court.

In assessing the total relationship of the parties, Canada Post alleges the Appeals Tribunal failed to consider the “intention of the parties” and “indicia of employment”. Of course, the latter allegation is simply an invitation to reweigh the very factors considered by the Appeals Tribunal. The true thrust of Canada Post’s argument is that the decision of the New Brunswick Appeals Tribunal runs contrary to the tribunal jurisprudence emanating from Manitoba and British Columbia, the jurisprudence of the Tax Court of Canada and, to a lesser extent, a decision of the Federal Court of Appeal.

This takes us back to the refusal of the Appeals Tribunal to consider the precedential significance of the two tribunal decisions submitted after the close of the appeal hearing, but before the Tribunal rendered its formal decision in accordance with s. 21(10) of the WHSCC Act . It is this refusal which gives rise to the allegation that the Appeals Tribunal breached the fairness duty. IV.

The Standard of Review Issue [ 18 ] With the statutory adoption of the workplace insurance scheme in 1918, the decisions of the Workmen’s Compensation Board involving questions of law and jurisdiction were reviewed on the correctness standard. Under the Workmen’s Compensation Act , S.N.B. 1918, c. 37, s. 33(1) and s. 35 , the New Brunswick legislature declared the Board’s rulings involving questions of law and fact to be “final and conclusive”, subject only to direct right of appeal to the Court of Appeal, with leave of a judge of the Court of Queen’s Bench, on a question of law or the Board’s jurisdiction.

Under the legislation in force in 1973, the decisions of

the Board (now Commission) were expressly deemed to be final and immune from judicial review, subject to a statutory right of appealto this Court on questions of law and jurisdiction: see Workmen’s Compensation Act, R.S.N.B. 1973, c. W-13, ss. 34(1) and 36(2). TheAppeals Tribunal was established in 1989 (S.N.B. 1989, c. 65, s. 5). The amending legislation declared decisions of the Appeals Tribunalto be final, subject only to an appeal to this Court on a question of law or jurisdiction. In 1994, further amending legislation clothed theAppeals Tribunal with the status of an independent adjudicative tribunal.

Section 21(1) of the current WHSCC Act establishes a “finalright of appeal” to the Tribunal from a decision of the Commission. Section 21(12) of that Act also states that all decisions of the AppealsTribunal are final, subject to an appeal to this Court on a question of law or jurisdiction. [19] The New Brunswick jurisprudence supports the general understanding that this Court has, from the outset,applied the correctness standard to questions of law and jurisdiction. Indeed, some of the earlier cases predate the articulation of themodern deference doctrine. In Lanteigne v.

Workmen's Compensation Board (N.B.) (1973), (NB CA), 7 N.B.R. (2d)36, [1973] N.B.J. No. 112 (S.C.A.D.) (QL) and Crothers and Sussex Farm & Garden Ltd. v. Martin and Ascon Ltd. and Workers’Compensation Board (N.B.) (1982), (NB CA), 44 N.B.R. (2d) 59, [1982] N.B.J. No. 392 (C.A.) (QL), this Courtassumed that correctness was the proper review standard for questions of law. Admittedly, it was not until 1994 that the standard ofreview issue was expressly raised in this Court in Spellman v. Gulf Operators Ltd. et al. (1994), (NB CA), 143 N.B.R.(2d) 382, [1994] N.B.J. No. 27 (C.A.) (QL).

Writing for the Court, Chief Justice Hoyt reaffirmed the law as it had been assumed to be inearlier precedents: see also Martin v. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail (N.-B.) (1998), (NB CA), 205 N.B.R. (2d) 319, [1998] N.B.J. No. 263 (C.A.) (QL). Subsequently, in Gallant v. WorkplaceHealth, Safety and Compensation Commission (N.B.) (2000), (NB CA), 228 N.B.R. (2d) 98, [2000] N.B.J.

No. 320(C.A.) (QL), this Court, per Drapeau J.A. (as he then was), was called on to reaffirm its earlier precedents. [20] I am not suggesting that the other factors set out in Dunsmuir have been ignored or that a statutory right toappeal a tribunal decision involving a question of law has been viewed determinative of the review standard: see the extensive analysisoffered in Keddy v. Workplace Health, Safety and Compensation Commission, Region 3 Hospital Corporation and Anne Brown, 2002NBCA 24, 247 N.B.R. (2d) 284.

For example, when it comes to an appeal on a question of law, one cannot simply ignore the fact that,until recently, no member of the Appeals Tribunal was trained in the law. Nor has the Tribunal been guided in its legal determinations bythe hand of independent legal counsel retained by the Appeals Tribunal. It is within this context that one has to approach the matter oftribunal expertise and not to be influenced by presumptions based, for example, on the realities of federal tribunals responsible forregulating such matters as energy, transportation or communications.

In brief, so long as the analytical framework for identifying theapplicable standard of review is premised on the understanding that the search for the proper standard is a search for legislative intent,the New Brunswick jurisprudence remains true to that of the Supreme Court. [21] At this juncture, I wish to acknowledge the Supreme Court’s recent decision in Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, supra, at para. 39, adopting a presumption that a tribunal’s

interpretation of its“home statute” will be accorded deference under the reasonableness standard. Parenthetically, and for greater certainty, it is to be notedthat this case does not involve the

interpretation of a tribunal’s home statute or a closely related one. Moreover, the majority of issuesraised on this appeal are tied to common law principles over which the Supreme Court continues to exert doctrinal control andsupervision, as evidenced by the application of its decision in Sagaz. This is not the case to ask whether the analytical framework setdown in that case is of “central importance to the legal system as a whole” or simply one of “general importance”: see Dunsmuir, supra,and Alberta Teachers’ Association, supra, which speak of the former and Canada (Canadian Human Rights Commission) v.

Canada(Attorney General), 2011 SCC 53, [2011] S.C.J. No. 53 (QL), at para. 24, which speaks of the latter. [22] As would be expected, the New Brunswick jurisprudence recognizes that tribunal decisions involving aquestion of mixed law and fact (the application of an analytical framework to unchallenged primary findings of fact) must be accordeddeference on the standard of reasonableness, as articulated in Dunsmuir. Questions of fact are reviewable on the standard of palpable andoverriding error.

The review of factual determinations is consistent with the notion that a palpable and overriding error of fact qualifiesas an error of law and also with s. 21(9) of the WHSCC Act: see generally Brun v. Commission de la santé, de la sécurité et del'indemnisation des accidents au travail (N.-B.) (1996), (NB CA), 183 N.B.R. (2d) 172, [1996] N.B.J. No. 507(C.A.) (QL); VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission and Duguay et al., 2011 NBCA 76, 376N.B.R. (2d) 292; Stewart v. Workplace Health, Safety and Compensation Commission, 2008 NBCA 45, 331 N.B.R. (2d) 278; The Cityof Saint John v.

The Workplace Health, Safety and Compensation Commission of New Brunswick and Rowe, 2008 NBCA 83, 338N.B.R. (2d) 213 and New Brunswick Power Generation Corporation v. Workplace Health, Safety and Compensation Commission andDashwood, 2011 NBCA 47, 374 N.B.R. (2d) 230. V. Breach of the Fairness Duty [23] One must ask why the Appeals Tribunal did not acknowledge receipt of the two administrative law decisionssubmitted by Canada Post following the hearing and indicate that copies had been provided to each of the three tribunal members fortheir respective consideration.

Instead, the Appeals Tribunal wrote back indicating that the Chair had ruled, in accordance with policyguidelines issued by the Commission’s Board of Directors, pursuant to s. 20(2) of the WHSCC Act, that the two decisions would not beconsidered because the panel had already reached a decision immediately following the hearing.

[24] I shall deal briefly, and in point form, with the allegation the Appeals Tribunal breached the fairness duty.First, I would allow the motion for both parties to introduce affidavit evidence pertaining to post-hearing matters touching on CanadaPost’s allegation. Second, I note that Canada Post did not ask the Tribunal to reopen the hearing for purposes of making oral submissionstied to the two administrative law decisions. Nor did Canada Post ask that it be provided with the opportunity to file a written submissionaddressing the decisions.

Third, the two cases cited to the Commission are non-binding and do not signify a significant or fundamentalchange in the law, as would be true had the Supreme Court of Canada released a decision following the hearing of the administrative lawappeal.

Fourth, the two administrative law decisions simply add weight to and support arguments which Canada Post had advancedbefore the Appeals Tribunal based on decisions of the Tax Court, which decisions the Appeals Tribunal acknowledged in its reasons.Finally, as this Court is in a position to reflect on the precedential significance of the two administrative law decisions, because of theapplication of the correctness review standard, it is unnecessary for this Court to engage in a thorough analysis of the followingjurisprudence: Joey’s Delivery at paras. 37-39; Mattina v.

Workplace Health, Safety and Compensation Commission, 2005 NBCA 8, 279N.B.R. (2d) 104; Levac v. Canada (Canadian Armed Forces), (FCA), [1992] F.C.J. No. 618 (C.A.) (QL); Mladenovv. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 66 (T.D.) (QL); Vairavanathan v. Canada (Minister ofCitizenship and Immigration), [1996] F.C.J. No. 1025 (T.D.) (QL) and 1247550 Ltd. (c.o.b. Can-Fix Auto) v. Ontario (Ministry of theEnvironment), [2008] O.E.R.T.D. No. 42 (QL). VI.

The Concept of Employee under the Relevant Federal and Provincial Legislation [25] The analytical framework for assessing whether persons in the claimant’s position are to be treated asemployees rather than independent contractors has four potential sources:

(1) GECA; (2) the Canada Post Corporation Act; (3) theWorker’s Compensation Act; and (4) the common law. As a general proposition, it is not misleading to observe that legislatures andParliament continue to rely primarily on the common law framework for distinguishing between employees and independent contractors. [26] The right of a federal worker to claim workers’ compensation benefits under provincial legislation is dependentupon the concept of “employee” as set out in GECA, not the provincial workers’ compensation legislation: see Nurnber v.

Workers’Compensation Board (N.S.) et al., 2004 NSCA 83, [2004] N.S.J. No. 242 (QL). If the federal and provincial legislation conflict, thefederal legislation prevails. This is not because of the paramountcy doctrine, but because the federal legislation’s definition of“employee” is what counts when it comes to employees working for employers who fall under federal jurisdiction. Section 4(1) of GECAprovides, inter alia, that compensation shall be paid to an employee who suffers a personal injury or becomes disabled because ofindustrial disease.

Pursuant to s. 4(2), these employees are entitled to compensation at the same rate and under the same conditionsprovided to provincial workers under the provincial scheme. But it is s. 2 of GECA that offers a definition of “employee”.

Section 2states: “employee” means: (

a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty; [and] (

b) any […] employee of any […] corporation […] established to perform a function or duty on behalf of the Government of Canadawho is declared by the Minister with the approval of the Governor in Council to be an employee for the purposes of the Act. [27] One would have thought that paragraph (

a) applies to workers within the bureaucracy of the federalgovernment and, in particular, those retained within the various government ministries or departments. These are the persons who arepaid a direct wage or salary (see also s. 13(1) of the Canada Post Corporation Act). But, in any event, there is nothing in that paragraphthat assists in our search for a workable definition of “employee”. So far as paragraph (

b) is concerned, I would draw attention to Orderin Council P.C. 1981-2248, which was adopted on August 19, 1981. The Order simply declares “the officers and employees of theCanada Post Corporation are to be employees for purposes of the Government Employees Compensation Act”. Obviously, one would notexpect to see a Ministerial order designation either including or excluding the present claimant from employee status with Canada Post.Parenthetically, it is open to ask whether a Ministerial order could designate certain types of postal workers as non-employees. [28] In

summary, neither GECA nor the Privy Council Order provides us with any parameters or guidelines as tohow one assesses whether a worker in the federal sphere is an employee as opposed to an independent contractor. In the absence of otherapplicable federal legislation, the determination must be based largely on the application of common law principles.

I employ the word“largely” because the law recognizes that the statutory concept of employee will be guided by a principle that the decision-maker mustadopt a purposive or liberal approach; one that is consistent, for example, with the objects of the benefit conferring legislation.

So foundthe Nova Scotia Court of Appeal in Cape Breton Development Corporation, supra, when dealing with the concept of employee underGECA: The language of GECA is intended to be general and inclusive because its purpose is to provide federal employees with workers'compensation benefits in accordance with the particular wording of the workers' compensation acts of various provinces. TheParliamentary objective of making one federal act mesh with many provincial ones would be more difficult to achieve if GECA were to

be read more narrowly than its natural meaning might support. Like other workers compensation legislation it is to be construed liberallyand in favour of all workers within its purview. [para. 14] [29] Before turning to the provisions of the Canada Post Corporation Act that allegedly impact on the concept ofemployee under GECA, I must point out the New Brunswick’s Workers’ Compensation Act does not speak of “employees”, but rather of“workers”. Indeed, throughout these reasons, I use the term “worker” to refer to someone who may qualify as either an employee or anindependent contractor.

I justify this deviation on the ground that we are not dealing with provincial workers and, therefore, I mustemploy the term “worker” as a term of art. What is important is that the definition of “worker” in the provincial legislation is as non-revealing as the definition of “employee” found in the federal legislation. Let me explain. [30] The Workers’ Compensation Act defines "employer" to include every person who “[has] in his service undercontract of hire or apprenticeship […] any worker engaged in any work”.

In turn, "worker" is defined to mean any person who “worksunder a contract of service or apprenticeship”. In short, to be an employer, one must have workers that qualify as employees (theRegulations require a minimum of 3 workers: see Exclusion of Workers Regulation – Workers’ Compensation Act, N.B. Reg. 82-79, s.3(1)). Despite the fact that the definition of “employer” refers to those who retain persons under a contract of "hire", while the definitionof “worker” refers to those who work under a contract of "service", the distinction is without significance. A contract of hire is a contractof employment.

For our purposes, it is important to recognize the provincial legislation must rely on the common law principlesgoverning the assessment of employment relationships to determine who is a “worker”, as does the federal legislation when it comes toclassifying a person as an “employee”. At the same time, the purposive (or liberal) approach to the

interpretation of workerscompensation legislation adopted in Cape Breton Development Corporation has been adopted in New Brunswick with respect to theprovincial Workers’ Compensation Act: Joey’s Delivery at paras. 56-59, citing Pointe-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1 S.C.R. 1015, [1997] S.C.J. No. 41 (QL) and Imperial Taxi Brandon

(1983) Ltd. v. Hutchinson, [1987] M.J.No. 551 (C.A.) (QL). In practical terms, the broad or purposive approach translates into the understanding that borderline cases will bedecided in favour of workers being declared employees: see Barnacle and Wood, Employment Law in Canada (Markham, Ont.:LexisNexis, 2005), at 2-7. [31] This leaves us to consider the impact which the Canada Post Corporation Act has on the definition of“employee” found in GECA. In brief, the provisions of the former Act are cited in support of the proposition that Parliament did notintend for replacement drivers and paid assistants to be treated as employees. The argument runs as follows.

Section 12 of the CanadaPost Corporation Act provides that the Corporation may hire employees and engage the services of agents and others “as it considersnecessary for the proper conduct of its business, and may fix the terms and conditions of employment or engagement, as the case maybe, and pay their remuneration”. Section 13(5) of the same Act goes on provide that, “[n]otwithstanding any provision of

Part I of theCanada Labour Code, for the purposes of the application of that Part to the Corporation and to officers and employees of theCorporation, a mail contractor is deemed not to be a dependent contractor or an employee within the meaning of those terms [as set out]in s. 3(1) of [the Canada Labour Code]”. Section 2(1) of the Canada Post Corporation Act defines “mail contractor” to mean “a personwho has entered into a contract with the Corporation for the transmission of mail, which contract has not expired or been terminated”.Section 3(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, defines an “employee”, for purposes of

Part I only, as “any personemployed by an employer and includes a dependent contractor and a private constable, but does not include a person who performsmanagement functions or who is employed in a confidential capacity in matters relating to industrial relations”. The reference in s. 13(5)to

Part I of the Canada Labour Code and the definition of “employee” found in s. 3(1) are significant because

Part I deals with the rightsof workers to unionize and bargain collectively. [32] The submissions of Canada Post and the jurisprudence confirm the following historical facts. Prior to 2004,and pursuant to what is now s. 13(5) of the Canada Post Corporation Act, Canada Post took the position that “contractors” hired todeliver rural mail were captured by that provision and, therefore, could not be deemed to be employees and thus unable to unionize andenjoy the benefits of collective bargaining under the provisions of the Canada Labour Code.

This position was confirmed in a 1987decision of the Federal Court of Appeal: Canada (Canada Post Corporation) v. C.U.P.W., (FCA), [1987] F.C.J. No.1142 (C.A.) (QL). Indeed, the Federal Court of Appeal set aside a decision of the Canada Labour Relations Board declaring rural routemail carriers to be employees. The Board had held that s. 13(6) of the Canada Post Corporation Act [now s. 13(5)] did not apply to ruralmail carriers, but rather, for example, to those engaged in the trucking of mail between cities.

Applying the review standard ofcorrectness, the Federal Court of Appeal had little difficulty in concluding the Board was wrong to hold carriers were not “mailcontractors” within the meaning of the federal legislation. The Federal Court of Appeal, per Hugessen J.A., reasoned: While the Board has the undoubted power and jurisdiction to declare who is or is not an employee, that power is circumscribed here.Parliament, by deeming a certain class of persons not to be employees for the purposes of

Part V [now

Part I] of the Code even though, infact, they may actually be so, has restricted the Board's jurisdiction to declare them to be employees. Thus any declaration by the Boardthat mail contractors were employees would be ineffective against Parliament's provision deeming them not to be. [33] Following the Federal Court decision, Canada Post continued to use independent contractors (RSMCs) todeliver mail in rural areas. These contractors were able to take on more than one contract with Canada Post at any given time, servicing

multiple rural routes, and were responsible for engaging their own helpers. However, for operational and labour relations reasons, Canada Post subsequently decided to terminate all contracts with rural route and suburban services contractors and offered them new “contracts of service” as employees with Canada Post. This arrangement was undertaken in consultation with the Canadian Union of Postal Workers, which also represented Canada Post’s letter carriers. Negotiations resulted in a collective agreement, effective January 1, 2004. Consequently, approximately 6,800 new employees were hired as RSMCs.

This is true despite the fact that the RSMCs were performing the same tasks in 2004 as they were performing in 2003 (see Plant v. Minister of National Revenue , 2007 TCC 453 , [2007] T.C.J. No. 291 at para. 29 (QL)). However, Canada Post has continued to regard replacement drivers and paid assistants as independent contractors who remain within the ambit of s. 13(5) of the Canada Post Corporation Act . Indeed, each of the collective agreements entered into between Canada Post and the union representing the RSMCs has a provision which states as much. For example,

Article 14.02 of the 2006 Collective Agreement provides that replacement workers “shall not be considered an employee of the Corporation while performing such work”. [ 34 ] In Laperrière v. Minister of National Revenue , 2007 TCC 252 , [2007] T.C.J. No. 170 (QL), the Tax Court of Canada made what I regard as two astute comments with respect to Canada Post’s treatment of RSMCs and replacement drivers.

First, the Tax Court judge found it odd that although RSMCs were now treated as employees, their replacement drivers were not, despite the latter being paid exactly the same amount per day for handling the same route, together with the same vehicle allowance. Second, the Tax Court judge observed “it seems strange that a provision of

an Act of Parliament [ s. 13(5) ] can be effectively overruled by means of a few clauses in a collective agreement” (para. 33). When this Court brought that observation to the attention of counsel for Canada Post, counsel responded by submitting that the employment status of RSMCs does not conflict with s. 13(5) as “RSMCs do not have contracts for services; rather they have contracts of service” and, hence, are employees of Canada Post.

If I understand the submission correctly, Canada Post is arguing that if it contracts with RSMCs on the understanding that they will be treated as employees, the law must treat them as employees notwithstanding s. 13(5) of the Canada Post Corporation Act . Admittedly, the legal status of RSMCs is not in issue in this appeal. But it is important to recognize the true thrust of Canada Post’s argument.

If Canada Post has expressed a clear intention to treat certain workers as independent contractors, that intention is a relevant factor when applying the proper common law analytical framework for classifying a particular working relationship. I shall deal with this issue under a separate heading. [ 35 ] I must still decide whether s. 13(5) of the Canada Post Corporation Act has a narrowing impact on the definition of employee found in GECA . In my view, it does not. Section 13(5) does not deem all mail contractors to be non-employees for all purposes, but only for purposes of collective bargaining under

Part I of the Canada Labour Code . Section 13(5) does not apply to either

Part II or

Part III of the Code .

Part II deals with occupational health and safety matters (commencing at s. 122), while

Part III deals with matters of standard hours, wages, vacations and holidays (commencing at s. 166). In particular, s. 239.1(2) requires each federal employer to subscribe to a plan that provides an employee who is absent from work due to a work-related illness or injury and with compensation equivalent to that recoverable under workers’ compensation legislation in the employee’s province of permanent residence. It is also of significance that, just as

Part I of the Canada Labour Code provides a definition for employee in s. 3(1) , so too does

Part II provide its own definition.

Section 122 defines “employee” as “a person employed by an employer”. But again, this circular definition tells us nothing. On the other hand,

Part III does not contain a definition for the term “employee”, but only for an “employer”, who is defined as “any person who employs one or more employees” (s. 166). [ 36 ] In my view, Parliament’s adoption of s. 13(5) of the Canada Post Corporation Act reveals only one clear intention: “mail contractors” would not be treated as employees for purposes of collective bargaining under

Part I of the Canada Labour Code . That deeming provision was not extended to

Part II or

Part III of the Code . In particular, the Canada Post Corporation Act does not deem mail carriers to be non-employees for purposes of applying the provisions of

Part III of the Canada Labour Code , which

Part imposes on federal employers the obligation to provide employees with workers compensation coverage. The only reasonable inference to be drawn is that Parliament intended the question of whether mail contractors should be classified as employees or independent contractors, for purposes of

Part II and III, to be determined in another forum. Frankly, what astute politician would be willing to stand up in the House of Commons and declare that replacement drivers and paid assistants would not be entitled to the minimum protections offered under the Canada Labour Code ? [ 37 ] As to the legal significance of a provision in a collective agreement which declares that non-parties are not to be regarded as employees, I want to acknowledge the obvious.

A provision in a collective agreement which deems a third party to be an independent contractor cannot be binding on someone who is not a party to the agreement. Regrettably, other decision-makers have regarded the provisions of the collective agreement between Canada Post and the union representing the RSMCs as being relevant to the classification issue of replacement drivers. At best, those provisions can be invoked to support the fact that Canada Post has consistently treated replacement drivers as non-employees.

This would take us back to Canada Post’s argument the common intention of the parties is a relevant consideration, a topic which is dealt with below. [ 38 ] Having concluded the provisions of the Canada Post Corporation Act and the provisions of the collective agreement governing Canada Post and RSMCs do not narrow the concept of employee as articulated in GECA , I turn to the jurisprudence Canada Post cited to the contrary and which the Appeals Tribunal declined to consider. The first is a September 8, 2010, decision of the Workers’ Compensation Appeal Tribunal of British Columbia (WCAT-2010-02423).

The WCAT was dealing with a common issue raised by three appeals: Whether a replacement RSMC was an employee under s. 4(1) of GECA . In thorough and extensive reasons, the WCAT held that while the case for categorizing the replacement drivers as independent business persons was “weak”, there was evidence of Parliament’s intention that these workers should be characterized as independent contractors rather than employees (para. 107).

This intention was evidenced by s. 13(5) of the Canada Post Corporation Act and the comments of the Minister responsible for Canada Post, as reproduced in Canada (Canada Post Corporation) v. C.U.P.W. , supra, at the time the legislation was considered by

Parliament. The WCAT also considered and deemed relevant the fact that the status of replacement workers as independent contractors was the subject of collective bargaining between Canada Post and the union. The WCAT went on to hold that while none of these factors was determinative of the replacements’ status, each had to be given “some weight” (para. 107). The WCAT went on to deal with the “thorny question” of the extent to which the “purposive approach” should be applied to support a broad application of workers’ compensation coverage (para. 109).

Based on the court cases dealing with the status of replacements, the related history regarding their classification and the effect of s. 13(5) of the Canada Post Corporation Act , the WCAT concluded the adoption of a broad or purposive approach was not warranted. After examining and weighing other factors, the WCAT concluded the replacements had to be classified as independent contractors.

Finally, the WCAT expressed its agreement with the decision of the Manitoba Appeal Commission, No. 52/2010, dated June 17, 2010. [ 39 ] A decision of the Manitoba Appeal Commission (Decision No. 52/10) is the other case Canada Post brought to the attention of the New Brunswick Appeals Tribunal following the appeal hearing. That Commission was dealing with the status of replacement drivers (as was the British Columbia tribunal). The majority of the Commission concluded the replacement drivers were independent contractors.

In so holding, the majority recognized that, although s. 13(5) of the Canada Post Corporation Act is not directly applicable for purposes of GECA , the provision reflects the status of mail carriers generally, absent any statutory provision or negotiated terms of employment. However, the majority went on to hold that, even if s. 13(5) did not exist, on a balance of probabilities the claimant replacement worker was an independent contractor, having regard to the factors set down in the common law.

In that regard, the majority went on to note that the evidence supported a clear intention on the part of Canada Post to hire the worker as an independent contractor, as evidenced by both the collective agreement and the vouchers provided by Canada Post to replacement drivers. However, the majority cautioned these facts were not determinative of the issue, as the replacement workers were neither privy to the collective agreement nor provided a copy of its relevant terms.

As to the legal effect of the vouchers, the majority held that despite the replacement worker’s evidence that he never read the back of the vouchers and no one had ever explained their significance, the replacement driver must have known that the relationship did not give rise to the type of working relationship which provided benefits typically made available to employees.

The minority disagreed, principally for the following reason: “It is fundamental to all workers compensation systems that any person doing identical work as another worker who is covered for injury must enjoy the same coverage.” The dissenting member went on to observe: “it is not reasonable that doing the job as a temporary replacement for a worker who is covered, disentitles the replacement from coverage.” [ 40 ] Both the Manitoba and British Columbia tribunal decisions cite and discuss two cases emanating from the Tax Court of Canada in support of their conclusions: Plant v.

Minister of National Revenue , supra and Laperrière v. Minister of National Revenue , supra . In both instances, the Tax Court concluded that replacement drivers were independent contractors and, therefore, the drivers were not engaged in insurable employment for purposes of accessing benefits available under the Employment Insurance Act . To the same effect, see 918855 Ontario Ltd. v. Canada (Minister of National Revenue) , [1997] T.C.J. No. 664 (QL) ; but see Skipsey v. Minister of National Revenue , 2007 TCC 192 , [2006] T.C.J.

No. 569 (QL), where a replacement driver was found to be an employee of Canada Post. [ 41 ] Notwithstanding the jurisprudence discussed and referred to above, I must disagree with the proposition that the provisions of the Canada Post Corporation Act indicate an intention on the part of Parliament to limit the ambit of the term “employee” found within GECA .

This leads me to consider Canada Post’s submission that the Appeals Tribunal failed to consider the evidence regarding the intent of the parties, including the evidence pertaining to the wording on the back of the vouchers issued by Canada Post to workers such as the claimant. VII. The Intent of One or Both Parties – A Relevant Factor? [ 42 ] Canada Post submits the Appeals Tribunal erred in failing to take into account the intention of the parties when rendering its decision.

I acknowledge the jurisprudence of the Federal Court of Appeal holding that the common intention of the parties is a relevant consideration when it comes to deciding whether a taxpayer should be treated as an employee or an independent contractor. However, I am not prepared to subscribe to the view that the intention of one of the parties (Canada Post) is a relevant factor when the evidence referred to in support of that position is self-serving.

I do not doubt that Canada Post has always regarded replacement drivers and paid assistants as non-employees and has taken every measure possible to arrange the working relationship in a manner that embodies the features typically attributable to independent contractors (e.g., the wording placed on the back of vouchers). But the law does not embrace the proposition that simply because an employer proclaims workers to be non-employees, those workers must deemed to be such. Further analysis is required. [ 43 ] In Royal Winnipeg Ballet v. Minister of National Revenue , 2006 FCA 87 , [2006] F.C.J.

No. 339 (QL), the Federal Court of Appeal was divided as to whether a common intention on the part of the Winnipeg Ballet and its dancers to classify the latter as independent contractors was a relevant consideration for purposes of classifying the status of their relationship. The ballet company had sought a ruling from the Minister on the issue for the purpose of determining whether it had any legal obligation to pay contributions in regard to the Canada Pension and Employment Insurance schemes.

The parties’ common intention was set out in the contract of engagement and both parties had acted in accordance with their agreement. The Minister ruled the dancers were employees and, therefore, the ballet company was obligated to make the necessary contributions. The Minister’s ruling was upheld by the Tax Court. On appeal, the majority of the Federal Court of Appeal reversed that decision, holding that the expressed common intent was a

relevant but not determinative consideration. So too was the fact that the dancers had acted in accordance with the agreement. Evidence of the parties’ understanding of their contractual arrangement was to be examined and given “appropriate weight”, and the failure of the Tax Court judge to do so was found to constitute error. The minority disagreed on the ground the common law of contract attaches little, if any, significance to parties' understanding of, or stated intention about, the legal nature of their relationship.

Hence, the minority was not prepared to reverse the Tax Court’s finding that the dancers were properly classified as employees. [ 44 ] In Barnacle and Wood, Employment Law in Canada , supra , at 2-15, the authors acknowledge that “courts are prepared to give greater weight to contractual self-descriptions under the Income Tax Act ”, citing Wolf v. Canada, 2002 FCA 96 , [2002] F.C.J. No. 375 (QL) .

Canada Post also cited two Tax Court decisions in which the common intent of the parties, as manifested in an agreement, together with conduct consistent with that agreement, was deemed a relevant consideration when assessing the true nature of the relationship for the purposes of determining whether the taxpayer was engaged in insurable and pensionable employment under the Employment Insurance Act and the Canada Pension Plan, R.S.C. 1985, c. C-8 , respectively: Prue v. Minister of National Revenue , 2011 TCC 9 , [2011] T.C.J. No. 14 (QL) ; Smith v. Minister of National Revenue , 2011 TCC 20 , [2011] T.C.J.

No. 16 (QL) and see also Combined Insurance Company of America v. Canada (Minister of National Revenue) , 2007 FCA 60 , [2007] F.C.J. No. 124 (QL) . [ 45 ] As to this Court’s position on the effect of a written agreement and the parties self-classification of their working relationship, in a non-tax case, it was held in Joey’s Delivery : In other cases, the parties to the working relationship will have executed a written agreement. That document can be used to supplement viva voce evidence, provided that the written word corresponds with the manner in which the parties actually conduct themselves.

In these cases, the law is concerned with what people actually do and not what they agreed to do. More importantly, the law will not blindly accept the classification label the parties have placed on their relationship. This follows from the equitable doctrine that form does not prevail over substance. For example, one cannot label a document a "lease" that in law is regarded a "licence".

The nature of a working relationship is a legal problem that is to be resolved by legal analysis, not agreement. [para. 79] [ 46 ] Regardless of what was decided in Royal Winnipeg Ballet and the Tax Court cases noted above, this is not a case where Canada Post can validly argue a common intent on the part of Canada Post and the claimant to classify the latter as an independent contractor.

Aside from what is written on the back of the vouchers supplied to all paid assistants, a matter I shall deal with shortly, nearly all of the evidence which Canada Post cites in support of a common intention is self-serving and indicative of a unilateral intent to treat all replacement drivers and paid assistants as non-employees.

To wit: during the time the claimant was engaged as a replacement driver or paid assistant, no deductions were made for taxes, CPP or EI contributions; at the end of each year the claimant was not issued a T4 slip, as is expected in the case of an employee and, at the end of service, persons such as the claimant do not receive a Record of Employment, which is needed to access employment insurance benefits. As would be expected, Canada Post did not provide paid assistants with sick leave, dental or medical coverage or give credit with respect to statutory holidays.

In my view, evidence showing that the employer has consistently treated a worker as a non-employee is not evidence of a common intention. [ 47 ] The leads me to consider whether the wording on the back of the vouchers issued by Canada Post is sufficient to establish a common intent on its part and that of workers, such as the claimant, to establish the relationship of independent contractor.

In its written submission to this Court, Canada Post also draws attention to the fact the claimant received written communication of the terms and condition of her independent contractor status when she applied for a contract identification number. While there appear to be English precedents to support Canada Post’s position (e.g., Stevedoring & Haulage Services Ltd. v.

Fuller & Ors. , 2001 EWCA Civ. 651), I am mindful of the Canadian approach as expressed by Barnacle and Wood in Employment Law in Canada : “It is also submitted that the Canadian approach of giving little weight to express contractual self-descriptions in the employment sphere makes eminent sense, given the disparity of power in most employment relationships” (at 2-15).

To the extent that the voucher can be looked on as a contract of adhesion, and on the facts of the present case, I would give no weight to the words on the back of the voucher except for the purpose of showing that the employer has consistently treated the worker as an employee. The same reasoning applies to the written confirmation Canada Post provided the claimant when applying for a contract identification number.

In my view, the statutory definition of employee, found in GECA , cannot be overridden by a contractual provision, and this is true irrespective of whether both parties express a common intent and the agreement would be otherwise enforceable at common law. In other words, if a statute directs or infers that the classification issue will be determined in accordance with common law principles, the parties cannot override that directive by agreeing to a classification that is incompatible with the proper application of those principles. VIII.

The Common Law Framework [ 48 ] Before turning to Canada Post’s argument directed at the “reasonableness” of the Appeals Tribunal’s decision, it is instructive to look at the common law framework which the Tribunal was obligated to apply. In that regard, the Appeals Tribunal examined the Supreme Court’s decision in Sagaz and this Court’s decision in Joey’s Delivery .

The following analysis is intended to shore up two propositions: (1) the Appeals Tribunal correctly articulated the legal framework set out in Sagaz ; and (2) the framework set out in Joey’s Delivery is consistent with that framework, except in one respect, which is not material to the outcome of the present case.

[49] The lead decision of the Supreme Court with respect to the analytical framework to be applied when decidingwhether a worker is an employee or an independent contractor is Sagaz Industries Canada Inc, supra. The case involved the issue ofwhether Sagaz, a supplier of goods to Canadian Tire, was vicariously liable for the acts of bribery perpetrated by a consultant whomSagaz had retained to assist in securing Canadian Tire’s business. The plaintiff in the underlying action was the supplier who had lost thesupply contract with Canadian Tire.

Following its review of the case law and the various tests that had developed, the Supreme Court ofCanada concluded that there was no “universal test” to determine whether a person is an employee or an independent contractor. TheSupreme Court also agreed with the late MacGuigan J.A. in Wiebe Door Services Ltd. v. Canada (Minister of National Revenue), (FCA), [1986] 3 F.C. 553 (C.A.), that what must occur is a search for the total relationship of the parties.

In Wiebe Door,MacGuigan J.A. held: [I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longerserves a useful purpose.... The most that can profitably be done is to examine all the possible factors which have been referred to in thesecases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in allcases, or have the same weight in all cases.

Equally clearly no magic formula can be propounded for determining which factors should,in any given case, be treated as the determining ones. [p. 563] [50] The Supreme Court acknowledged the “control test” as an early attempt to deal with the classification issue,which in turn led to the articulation of a fourfold test known as the “entrepreneur test”, first applied by Lord Wright in Montreal v.Montreal Locomotive Works Ltd., (UK JCPC), [1947] 1 D.L.R. 161 (P.C.). The test requires the decision-maker toexamine the factors of: (1) control; (2) ownership of the tools; (3) chance of profit; and (4) risk of loss.

Control itself is not conclusive.The Supreme Court in Sagaz also agreed that a persuasive approach to the classification issue was that taken by Cooke J. in MarketInvestigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 (Q.B.D.). The Supreme Court went on to express the centralquestion as follows: Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuiganJ.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra.

The central question is whether theperson who has been engaged to perform the services is performing them as a person in business on his own account. In making thisdetermination, the level of control the employer has over the worker's activities will always be a factor.

However, other factors toconsider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree offinancial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker'sopportunity for profit in the performance of his or her tasks. [para. 47] [Emphasis added.] [51] The Supreme Court’s analysis in Sagaz concludes with the following notations: (1) that the factors citedtherein constitute a non-exhaustive list; (2) there is no set formula as to their application; and (3) the relative weight of each will dependon the particular facts and circumstances of each case (para. 48).

But I am acutely aware that the Supreme Court’s analysis is premisedon the identification of the policy considerations underlying the imposition of vicarious liability. Those policy considerations assist indetermining whether the doctrine should be applied in a particular case. The first policy consideration is that vicarious liability providesa just and practical remedy to people who suffer harm as a consequence of wrongs perpetrated by an employee. The “deep pockets”justification on its own does not accord with an inherent sense of fairness.

What is relevant is the fact that the employer is often in thebest position to spread the losses through mechanisms like insurance and higher prices. The second policy consideration is deterrence offuture harm, as employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision.

Inmy view, these policy considerations explain why the element of control takes on greater significance in cases involving the question ofvicarious liability. [52] The decision of this Court in Joey’s Delivery predates the Supreme Court’s decision in Sagaz by a few months.Hence, anything that was said in the former case must be measured against what was said in the latter. That said, the analyticalframework outlined in Joey’s Delivery is, in my view, consistent with what was said in Sagaz, except in one respect.

In Joey’s Delivery,this Court rejected the “business organization test”, sometimes referred to as the “integration test”. In Sagaz, the Supreme Courtacknowledged the criticisms leveled against the test, but accepted the proposition set out in Wiebe Door that the organization could, insome cases, be of assistance. Otherwise, the framework set down in Joey’s Delivery does not contradict or detract from the SupremeCourt’s pronouncement.

For example, Joey’s Delivery formulated the central question in terms of whether workers are “carrying onbusiness for themselves” (paras. 96-97). [53] To the extent that the Supreme Court in Sagaz was prepared to look at policy considerations relevant to theapplication of the doctrine of vicarious liability, so too did Joey’s Delivery recognize that it is permissible for administrative tribunalsand courts to approach the classification issue in light of the particular policy objectives of the statute in question. As noted earlier, thisproposition was based on the Supreme Court’s decision in Pointe-Claire, supra.

In that case, it was held permissible for anadministrative tribunal to determine “employer” status in light of the particular policy objectives underscoring the statute in question.The Supreme Court went on to hold that temporary workers supplied to a unionized employer by an agency became employees of theunionized employer. The result was held to be harmonious with the policy goal of extending collective bargaining rights to a relativelypowerless group of workers.

In short, Joey’s Delivery acknowledges the jurisprudence which recognizes the relevance of the policy goalsthat underscore federal or provincial legislation which limits the availability of benefits to those who qualify as employees. Thus, for

example, in cases involving minimum employment standards legislation, one should not be surprised to see that any reasonable doubt as to the proper classification of a worker will be resolved in favour of the worker: see Imperial Taxi Brandon , supra , and the analysis offered in Barnacle and Wood, Employment Law in Canada , at 2.3, explaining the purposive approach to classifying a working relationship.

In practical terms, I agree with the proposition that the purposive approach will be used to swing the balance in favour of declaring a worker as an employee in cases where there is a genuine and reasonable doubt as to the proper classification. [ 54 ] Joey’s Delivery formulated the central question in the same manner as the Supreme Court did in Sagaz : I s the person who has been engaged to perform the services performing them as a person in business on his or her own account? To make that determination, the decision-maker must examine a number of factors, including that of “control”.

The Court in Joey’s Delivery goes on to examine control in terms of its classical elements: (1) a person’s power to direct the thing to be done; (2) the means by which it will be done; (3) the way it will be done; and (4) directing the time; and place it will be done (para. 76). The Court pointed out that the modern law generally eliminates the third criterion and instead emphasizes “control” in the sense of directing the residual “when and where” of the work as opposed to the manner of its completion (para. 76).

The elimination of the third criterion seems to logically follow, at least in cases involving professional employees and other highly skilled workers who exercise considerable discretion when deciding how tasks are to be performed. The employer is more concerned with assigning tasks and their date of completion than with the way in which results are achieved: see Joey’s Delivery at para. 76 and Wiebe Door at paras. 6-7. [ 55 ] Two other aspects of the control factor are discussed in Joey’s Delivery .

First, the Court observed that workers who provide services at a designated business location, whether on a full-time, part-time or casual basis are instinctively or intuitively classified as employees (para. 77). Thus, it comes as no surprise that much of the litigation involves workers who are required to perform tasks away from the employer’s business premises, as is true in the present case. In such cases, the question is whether the employer engaging the worker continues to exercise sufficient control to warrant his or her classification as “employee”.

The second aspect of the control factor identified in Joey’s Delivery is the proposition that control may be measured in terms of the restrictions placed on workers that make them incapable of carrying on business on their own behalf (para. 78). For example, a restriction on a person’s right to perform work for others, which is a hallmark of the independent contractor, seriously challenges the notion that the worker is an independent contractor (the exclusivity factor). One expects the independent contractor to be one who offers his or her marketable services either on a part-time or full-time basis.

Even if no such restriction exists, consideration will be given to the realities of the working relationship: e.g. whether the worker de facto continues to work exclusively for one employer. The same reasoning holds true in respect of restrictions that prevent the worker from sub-delegating tasks (the sub-delegation factor).

If it is agreed that the worker has an unfettered right to use a replacement worker, the proper inference shifts to the understanding the worker is an independent contractor. [ 56 ] Putting aside the concept of control, the decision-maker is left to consider the remaining three factors outlined by Lord Wright in Montreal Locomotive Works Ltd : (1) ownership of tools; (2) chance of profit; and (3) risk of loss. In Joey’s Delivery, the Court observed these three factors are inextricably related and their function is to assist in determining whether a worker is carrying on business on his or her own account.

The Privy Council also made some general observations. It is easier to claim status as an independent contractor if capital expenses have been incurred. In theory, one must ensure the income stream is sufficient to defray the cost of capital investments.

For this reason, independent contractors are exposed to a greater risk of financial loss than are employees, whose principal concern is with respect to fair remuneration and access to private and public benefits. [ 57 ] As noted in the introductory paragraphs of these reasons, the difficulty in applying the classical tenets of the common law framework for assessing the status of a working relationship is exacerbated by the shift from the classical form of employment: full-time regular work of indefinite duration for time-based pay that qualifies for employee benefits, be they public or private in nature.

In response to concerns of competitiveness and cost-efficiency, the classical employer has turned to outsourcing or to the retention of part-time and casual workers. Indeed, there are those authors and commentators who have advanced an intelligent argument that the common law approach to the task of classifying a working relationship is simply unresponsive to the significant restructuring of Canadian workplaces, including the increased use of part-time workers.

These matters were touched on in Joey’s Delivery, but are better addressed in Barnacle and Wood, Employment Law in Canada; Judy Fudge, “New Wine into Old Bottles?: Updating Legal Forms to Reflect Changing Employment Norms” (1999) 33 U.B.C.L. Rev. 129 and Judy Fudge, “Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope of Labour Regulation” (2006) 44 Osgoode Hall L.J. 609. See also G.W. Adams, “Towards a New Vitality: Reflections on 20 Years of Collective Bargaining Regulation” (1991) 23 Ottawa L.

Rev. 139. [ 58 ] In response to the restructuring of Canadian workplaces, one would expect an adjudicative body to carefully scrutinize relationships in which one of the parties has unilaterally deemed the other to be self-employed. It is not difficult for employers to restructure a working relationship to emulate the legal characteristics of the independent contractor, that is to say, one who falls within the category of self-employed.

This is particularly true in cases where the services being provided need not be performed at the employer’s business address, thereby giving the appearance that the person being retained is no longer under the control of the person who does the retaining. As discussed in Joey’s Delivery , too much of the jurisprudence dealing with employment status is concerned with those who use their own vehicles when providing services to the other contracting party.

Of course, the vehicle is regarded as a capital investment and provides a springboard to the argument that the contractee has more to gain or lose than an employee. [ 59 ] While significant changes to the common law are the prerogative of the Supreme Court and legislatures, one

cannot help but observe that too frequently counsel approach the status issue in narrow terms of whether the claimant possesses thecharacteristics of an employee, as reflected in the classical model of a bilateral contract of subordination. This approach is often taken atthe expense of or to the exclusion of the question whether the surrounding circumstances support the inference that a claimant has thepotential to realistically qualify as a self-employed entrepreneur.

Let me explain. [60] Ultimately, those called on to assess the true nature of any working relationship must address a fundamentalquestion which flows naturally from the host of legal factors outlined above: Objectively and realistically speaking, does the claimanthave the potential to gain more as an entrepreneur (independent contractor) than as an employee? Alternatively stated, the underlyingquestion is whether the working relationship provides the claimant with the opportunity to achieve economic security and success. Thethesis underlying these questions is not complicated.

No reasonable person would go into business for herself or himself unless thepotential benefits outweigh the loss of benefits which are presently available to employees under provincial and federal legislation. It isthe Supreme Court of Canada which has cast the central question in terms of whether the worker is performing services on his or her ownaccount.

The employer’s argument that the worker is an independent contractor and, therefore, self-employed, must have an air of reality.It will not when the services being provided are not marketable to others or when the facts of the case reveal a part-time worker who iseconomically dependent on one employer: see Barnacle and Wood, Employment Law in Canada, at 2-28. IX. The Reasonableness of the Appeals Tribunal’s Decision [61] To this point I have concluded the Appeals Tribunal’s analysis was not infected with an error of law.

However,Canada Post maintains the Appeals Tribunal overemphasized the factor of sub-delegation and failed to consider other indicia ofemployment. I regard this ground of appeal as a challenge to the reasonableness of the Appeals Tribunal’s decision, all the while havingdue regard to the jurisprudence holding that similarly situated workers (replacement drivers) have been classified as independentcontractors. [62] Applying the review stand

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