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Docket: 2004-3456(CPP) |
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BETWEEN: |
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ALGOMA TAXICAB MANAGEMENT LTD., |
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Appellant, |
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And |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
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Appeal heard on November 25, 2005, at Sudbury, Ontario,
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By: The Honourable Justice E.A. Bowie |
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Appearances: |
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Counsel for the Appellant: |
Gregory DuCharme |
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Counsel for the Respondent: |
Charles Camirand |
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AMENDED JUDGMENT
The appeal pursuant to section 28 of the Canada Pension Plan is allowed and the determination of the Minister of National Revenue on the application made to him under section 27.1 of the Plan is varied on the basis that Bernard Michael Brouillard was not engaged in pensionable employment by the Appellant for the period January 1, 2001 to March 15, 2002, within the meaning of paragraph 6(1)(a) of the Plan.
Signed at Ottawa, Canada, this 8th day of February, 2006.
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"E.A. Bowie" |
Bowie J.
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Citation: 2006TCC71 |
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Date: 20060208 |
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Docket: 2004-3456(CPP) |
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BETWEEN: |
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ALGOMA TAXICAB MANAGEMENT LTD., |
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Appellant, |
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And |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
AMENDED REASONS FOR JUDGMENT
BowieJ.
[1] The issue in this appeal is whether Bernard Michael Brouillard, who worked for the Appellant as a taxi driver between January 1, 2001 and March 15, 2002, was employed under a contract of service or as an independent contractor under a contract for services. The answer to this question will determine whether he was engaged in pensionable employment under the provisions of the Canada Pension Plan[1] (the Plan). The Minister of Human Resources ruled that the employment was pensionable, and the Minister of National Revenue confirmed that decision on an appeal under section 27. This appeal is brought from that decision under section 28. No similar issue arises under the Employment Insurance Act[2] in this case, as it makes special provision for the insurability of taxi drivers that is not based upon the common law test. The only issue before me is as to pensionability.
[2] The only witness was Darryl Buck. He is president and general manager of the Appellant. I need not go into the details of the corporate structure of Mr. Buck's business interests. It is sufficient for present purposes to know that he owns a controlling interest in the Appellant company, and that the Appellant owns the shares of another company, KCUB, which owns or leases 24 cars and six vans that comprise the Appellant's fleet of taxis. The vehicles that are not leased are purchased under conditional sales contracts. The Appellant leases the vehicles from KCUB, and operates the fleet in and around the city of Sault Ste. Marie, Ontario. As one would expect, Mr. Buck is very knowledgeable about the operations of his company and the regulatory environment in which it operates. I found him to be a candid and forthright witness. I accept his evidence without reservation.
[3] The Appellant holds a licence issued by the Police Services Board of Sault Ste. Marie permitting it to operate a taxi service in that city. It also holds 30 taxi licences, also issued by the Board, one for each vehicle. Each of these must be attached to a specific vehicle at all times, or else it is revoked. Each driver of a taxi must also hold a current, valid taxi driver's licence from the Board; otherwise they cannot drive a taxi. At any one time the Appellant has between 60 and 65 drivers working for it under contract.
[4] The contracts with the drivers are on the company's printed form. It is styled "Rental Agreement", and it entitles the driver to the use of a vehicle from time to time, together with the dispatch services of the Appellant. The Appellant pays for insurance on the vehicles, as well as for maintenance, fuel, oil and other supplies for the vehicles. For this the drivers pay a rental fee that varies between 62% and 70% of their gross receipts while using the vehicle. The percentage is set for each driver, depending on a number of factors. For example, a driver who has successfully completed a defensive driving course is entitled to a reduction of 3%; another 1% reduction can be had by avoiding customer complaints. There are other specific provisions in the agreement, and I shall return to these shortly.
[5] The Appellant does not assign the drivers to work at particular times, or on particular days. Nor does it assign them to work in a specific geographic area. Driver's who have entered into a rental agreement can request a car or a van for a specific date and time that they wish to work, and if a vehicle is available then it is assigned to that driver for that period. Usually there are vehicles available to meet all these requests, the exception being very busy periods such as New Year's Eve, for example. Otherwise, a driver may decide at any time to go into work and expect to find a vehicle available. Drivers are not required to work any minimum period. When and where to work are entirely at the option of each driver. Mr. Buck estimated that about 50% of his drivers habitually book consistent days and times, about 30% of them book vehicles to work around other commitments that they have such as a job elsewhere, and about 20% check with the dispatcher to see how much business there is and then decide whether to work on the basis of what they learn about the volume of business. Nor are the drivers required to be constantly available during a shift they have booked. They can, and often do, run errands or do their laundry during a shift. Sometimes they book a van and then use it to move, or to help a friend to do so. Mr. Brouillard was one of the 50% who habitually worked regular shifts.
[6] The Appellant has divided the city into seven zones for purposes of its dispatch service. Mr. Buck's policy is to ensure for all drivers fair assignment of calls for taxi service. Incoming calls are assigned first to drivers in the zone where the customer is located. If no driver is in the zone then they are assigned to the closest driver who is in another zone at the time. Mr. Buck explained that under this system some drivers are able to earn as much as 50% to 60% more revenue than others simply by being in the right place at the right time. They do this by being at the boundaries between zones, thus getting more calls assigned to them than are assigned to drivers who simply park in one place and wait for a call in that zone.
[7] To a significant degree, the drivers are also able to cultivate their own regular customers who prefer to call them directly on their cellular telephones rather than calling the dispatcher. Drivers who use cellular telephones and business cards to develop a clientele pay the associated costs themselves from their share of the revenue.
[8] The legal principles that govern decisions of this kind are long settled and well known. The most authoritative, and succinct, statement of the test to be applied is found in paragraphs 47 and 48 of the unanimous judgment of the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc[3]., where Major J. said this:
[9] The evidence before me points clearly to the conclusion that M. Brouillard, and the Appellant's other drivers as well, were performing their services as persons in business on their own account.
[10] Counsel for the Respondent placed a great deal of emphasis on the Rental Agreement, and in particular the list of prohibited conduct and required conduct for drivers found in Appendix A, as showing that the employer had the right to and did exert considerable control over the manner in which the drivers performed their services. Appendix A provides for penalties in the form of increased rental rates to drivers to discourage certain kinds of behaviour on their part. Paragraph 4 addresses in particular the need for drivers to be well dressed and well groomed, and to avoid smoking in the vehicles. It contains a number of other provisions aimed at avoiding customer complaints, eliminating failure by drivers to show up for a shift that they have booked without calling in to advise the dispatcher, and encouraging drivers to keep the completion of documentation up to date. There are also provisions in the Appendix dealing with reimbursement by the driver to the Appellant of the insurance deductible in the event of an accident, and requiring them to take collision prevention and skid control courses.
[11] These provisions, as Mr. Buck explained, are aimed at two objectives in particular. One is the preservation of the Appellant's good reputation with the public that it serves in Sault Ste Marie. The other is to ensure that the very detailed requirements of city By-Law 55 are complied with by the Appellant and all its drivers. Some of these provisions are obviously aimed at protecting the financial security of the Appellant by reducing the number of accidents and providing that drivers reimburse the company when it has to pay the deductible on an insurance claim. Clearly the Appellant has a high interest in avoiding any breach of the By-Law, because that would potentially have repercussions for the Appellant itself. By the same token, it has a high interest in avoiding the situation of drivers booking cars and then not turning up. This reduces the number of its cars on the road, and as a result it loses revenue, and also may be unable to provide good service to the public. The contract with the drivers leaves them free to schedule their own shifts, to go where they wish while on a shift and to take any breaks that they wish during the shift. They can take specific calls or not as they wish; they can accept or reject fares who wish to pay by cheque; they can operate outside the city or not as they see fit, although if they are leaving the radio coverage area they must so advise the dispatcher.
[12] To summarize, where it is necessary for the protection of the Appellant's business there are some quite stringent controls on the drivers, and where it is not they have considerable freedom as to the manner in which they do the work. It seems to me that this is not significantly different from the parameters that govern many subcontracting situations. Subcontractors on a construction site, for example, have to agree to some stringent controls on their activities to prevent breaches of the laws and regulations that govern the worksite, to prevent breaches of the head contract, and to safeguard the financial interests of the owner and the general contractor. There are factors under the head of control that are consistent with a contract of service, and factors that tend in the direction of a contract for services.
[13] Neither counsel placed much reliance on the ownership of the tools as an indicator of the nature of the contract. Nor do I think that it is a very significant factor. Certainly the drivers have no investment in the vehicles. It is not clear from the evidence to what degree the Appellant, or more accurately its subsidiary KCUB, has capital invested in the vehicles, as they are all either leased or financed at the time of acquisition. It must have some investment, however, and it certainly is at risk if the vehicles are lost or destroyed. However the cost of leasing or buying the vehicles, and the cost of insurance, is recovered from the drivers as it is factored into the computation of the rental rates that they pay, as is the cost of fuel, and all the other vehicle-related expenses incurred by the Appellant. I therefore do not consider this to be a factor that should be given significant weight in this case.
[14] Of more significance, in my view, is the opportunity to make a profit and the risk of sustaining loss in the course of the work. I have described in paragraph 5 above the circumstances that allow a driver to increase his gross receipts, and therefore his profit, by demonstrating some initiative, and by skillfully operating on the dividing line between zones to increase the number of calls that are referred to him. The drivers can also improve their profitability by booking the most productive shifts, and by avoiding the various penalties that are built into the vehicle rental rate. A driver may pay as much as 70% or as little as 62% of the receipts to the Appellant under the rental agreement, and to a large extent that is a matter over which the drivers have control.
[15] The drivers also run the risk of loss. Credit card fares may be charged back to them if the credit card issuer refuses payment for any reason. The drivers are not required to accept cheques, but if they choose to do so they run the risk that the cheque may be returned NSF by the bank. The risk of a collision is always present, and it is the drivers that bear the cost of the deductible under the insurance policy, whether they or the other driver is at fault. Even though they may pay it over a lengthy period, this is nevertheless a significant risk to which they are exposed all the time that they are on the road. This factor strongly indicates a contract for services.
[16] To the extent that the integration test is relevant, it too is indicative of a contract for services. The drivers, as I have said, are free to work whenever they wish, and for as long or as short a shift as they wish. They may take time during their shifts to do personal errands. They are free to hold other jobs and to schedule their shifts for the Appellant around those other jobs. Looking at it from the point of view of the drivers, as I must, it is impossible to say that their activities are integrated into the business of the Appellant.
[17] Mr. Buck gave evidence before me that the method by which his business operates is very similar to that of the other taxi company in Sault Ste Marie. The reason for this is that he gave the proprietor of that other company considerable assistance in establishing his business. In an appeal brought by that company from a similar decision by the Minister, Justice Woods reached the conclusion that the drivers were employed under contracts for services, and that their employment was therefore pensionable.[4] That judgment was not appealed. I find no basis on which it could be distinguished from the case before me.
[18] The appeal is allowed. The decision of the Minister is varied to provide that the employment of Bernard Michael Brouillard by the Appellant between January 1, 2001 and March 15, 2002 was not pensionable employment as defined in section 6 of the Plan. If I had jurisdiction to do so, I would award costs to the Appellant.
Signed at Ottawa, Canada, this 8th day of February, 2006.
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"E.A. Bowie" |
Bowie J.
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CITATION: |
2006TCC71 |
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COURT FILE NO: |
2004-3456(CPP) |
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STYLE OF CAUSE: |
Algoma Taxicab Management Ltd. and The Minister of National Revenue |
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PLACE OF HEARING: |
Sudbury, Ontario |
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DATE OF HEARING: |
November 25, 2005 |
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AMENDED REASONS FOR JUDGMENT BY: |
The Honourable Justice E.A. Bowie |
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DATE OF AMENDED JUDGMENT: |
February 8, 2006 |
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APPEARANCES: |
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Counsel for the Appellant: |
Gregory DuCharme |
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Counsel for the Respondent: |
Charles Camirand |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Gregory Ducharme |
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Firm: |
Wallace Klein Partners in Law |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |