In 1159273 Ontario Inc. v. The Westport Telephone Company Limited (2022 ONSC 1375) Justice Kershman had to determine whether the relationship between the parties was that of an independent contractor vs a dependant contractor as the Defendant had terminated the Plaintiff. The Plaintiff was not claiming an employment relationship.

In finding that the relationship was that of an independent contractor, the Court was influenced by the following factors :

1. The two principals of the corporate entities, ( Tom was the Plaintiff and Steve the Defendant) arranged their complex corporate structure with the help of professional tax advisors, thus the structure was not imposed on the Plaintiff.
2. Tom was a traditional employee of the Defendant from 1977 to 1996. From 1996 until his termination in 2019 he carried out the same duties but through the corporate Plaintiff.
3. Tom worked full time for the defendant ( 40 hours a week ) and had the title of Director of Technical Services, President and Vice President at various times.
4. Tom was a shareholder, an officer and a director of the Defendant. Tom and/or the corporate Plaintiff owned one third of the shares in the Defendant until shortly before his dismissal.
5. An analysis of Tom’s income tax returns indicated that for a a period of 4 years  only 50% of his income came from the Defendant where the other 50% came from other sources. Of the last two years of his relationship with the Defendant , 70% of his income came from the Defendant and the remaining 30% came from other sources.
6. The primary source of the income from other than the Defendant was from Ancillary Companies, which were all related to the Defendant.
7. Tom’s income ( not the corporate Plaintiff) derived between 52 % 71% of his income from the Defendant, according to the relevant tax returns. The Court  found that this did not amount to income exclusivity, the central component of a dependant contractor relationship.
8. Steve and Tom are brothers.
9. Tom was publicly identified as an owner of the Defendant .
10. Although Tom had various  executive titles, the Plaintiff, which is a corporation, did not. Of course it is obvious that only a real person can be an officer or a director.
11. For the time that the Plaintiff had some shares in the Defendant, Tom effectively had some control over the Defendant as he was also a director and an officer, thus the Defendant did not control the Plaintiff to the degree necessary for a dependant contractor relationship to exist.
12. Notwithstanding that the Defendant provided Tom with an office and thus the tools necessary to do his job, the Judge found that was not a factor in favour of dependant contractor status.
13. Although there was no expectation of profit or loss in the consulting agreement between the Plaintiff and the Defendant, when one looked at the big picture, Tom ( who was not a personal litigant ) made a profit or a loss dependant on the overall success of the Defendant as he  was a shareholder for most of the time but not at the end.
14. Although Tom was an integral part of the Defendant, the corporate Plaintiff was not.

My Comments:

This case is very troubling .

At times the judge completely separates Tom from the corporate Plaintiff as when he said that although Tom was the President of the Defendant , the corporate Plaintiff was not. and when he said that although Tom was an integral part of the Defendant the corporate Plaintiff was not.

At other times he looks at the tax returns of Tom, not the corporate Plaintiff, to determine what portion of the income was derived from the Defendant. and what was derived from other entities.

The Judge said at one point that 71% does not show economic exclusivity but 88% does ? Where is the dividing line?  The Judge quoted a Court of Appeal case which states the test as follows:

Exclusivity is a categorical concept — it poses an either/or question, and “near-complete exclusivity” must be understood with this in mind. “Near complete exclusivity” cannot be reduced to a specific number that determines dependent contractor status; additional factors may be relevant in determining economic dependency. But “near-exclusivity” necessarily requires substantially more than 50% of billings. If it were otherwise, exclusivity — the “hallmark” of dependent contractor status— would be rendered meaningless.

I would think that 71% was  “substantially more than 50% of billings”.

In any event, as the Judge found that the Ancillary Companies were the source of the other 30% of his non passive income and that the Ancillary Companies were all related to the Defendant, in essence 100% of his non passive income came the Defendant and its related entities.

Moreover the Judge mentioned a few times that this complicated corporate structure was designed by professionals to minimize Tom’s ( not the corporate plaintiff’s) income tax liability. So what. How is that relevant?

Excuse me, this should have been seen as a simple case of a person who for years was considered to be an employee of the Defendant and then the parties decided to change the structure to save taxes but the Plaintiff continued in the same functional role as before. Whether Tom made other monies over and above his full time job with the Defendant should also be irrelevant. Full time employees often have second or even third jobs. One can wear different hats at the same time. You can be an employee, a director, an officer and even a shareholder. Each has their own set of rights and remedies which are independent of each other. The termination of one status has no effect on the other. This is even more important when the other income is from companies related to the Defendant, not real third parties.

In fact, as the Judge determined, at the time of his dismissal neither Tom nor the corporate Plaintiff owned any shares in the Defendant as Tom had sold his shares to an arms length third party against the wishes of his brother who wanted to buy out his brother but they could not agree on the price.  This is apparently what caused the Defendant to terminate the arrangement with the Plaintiff.

In non legal terms, Tom and his brother were partners and when Tom would not agree to the price his brother was offering, he sold his shares to a stranger, which upset the brother. The brother  returned the favour by firing Tom without paying him a dime.

I am not aware if this case is being appealed.

If you wish a copy of this case, email me at barry@barryfisher.ca

 

 

 

 

 

 

 

 

In Austin v. Kitsumkalum First Nation, 2020 BCSC 2298, Justice Groves had a situation of a 15 year School Principal in a First Nation school who gave notice of resignation 11 months in advance saying that she was leaving in November. The Employer turned around and terminated her in June, 5 months before her resignation date, and did not allege just cause at that time . The Plaintiff sued only for the 5 months. The Employer then alleged all sorts of criminal behaviour and alleged that it was after acquired cause.

The Judge found that the Defendant was fully aware of all of the necessary facts prior to termination and that those facts did not constitute just cause. In awarding aggravated damages , this is what the Judge said :

[33] In my view this defendant in raising in their statement of defence unfounded allegations which through a reasonable interpretation suggest potential criminal behaviour, suggest theft, suggest inappropriate reimbursement for expenditures, support a finding that this employer engaged in conduct that was unfair and in bad
faith. They are not saying she did not do her job. They are saying she was dishonest. They were saying she was fraudulent. They are saying she conducted herself in a semi criminal manner. All those things have not been proven, and in my view as they are unproven, they are both unfair and they were made in bad faith.

[35] And let us put this in context. She is a teacher in a small aboriginal community in Northern British Columbia near Terrace. She resides in that community. Upon her dismissal, everyone, she says, knew that she was dismissed. It was apparent. It is not like she is living in a big city and loses her job and no one knows.

If you would like a copy of this case, email me at barry@barryfisheer.ca

In Reotech Construction Ltd. v. Snider, BCSC 317, Justice Fleming , sitting on appeal from a decision of the Provincial Court, found that the trial judge erred when the Court failed to deduct the $9,000 CERB payment received by the Plaintiff from the damage award.

The Court referred to the following factors in making this decision:

1. CERB was not private insurance nor did the Plaintiff contribute ( unlike EI where the employee pays part of the premium).

2.There was no obligation under the CERB legislation whereby the Plaintiff would be required to repay CERB ( again unlike EI)

3. As such, the application of the collateral benefit rule did not apply.

4. CERB was designed to be a indemnification against wage loss and to not deduct it from the award would put the Plaintiff a better position than had the contract not been breached by failing to pay reasonable notice.

If you wish a copy of this decision, email me at barry@barryfisher.ca

In Verigen v. Ensemble Travel Ltd., ( 2021 BCSC 1934) Justice Milman had a situation of a 55 year old Business Development Director ( really more of a sales person ) with 13 months service who was given a temporary layoff notice at the beginning of COVID. The plaintiff consented to the first time limited layoff and consented to a second one but did not consent to at. third  extension beyond August, 2020.

1. The Judge found that because she had consented to the first two layoff periods, the date of her constructive  dismissal was not her original layoff date in March but only when she refused to consent to a third extension in August.
2. At the time of hiring there was a clause in her contract agreeing that she was bound by the Employee Handbook which they said was enclosed, but in fact it was not enclosed.  The Defendant did not actually give her  a copy of the Employee Handbook until a few months after she started and, lo and behold, the Handbook contained an ESA termination clause. The Court found that because there was no termination clause in the original hire letter, that extra consideration would have had to be paid to the Plaintiff at the time she was asked to agree to the termination clause, and as no such extra consideration was paid, the termination clause was not enforceable .
3. The Defendant then tried to argue that COVID had devastated the travel industry so that the doctrine of frustration applies and therefore the Plaintiff was not entitled to any common law notice . This is how the Court dealt with that issue:[59] The issue in Wilkie was whether the imposition of additional purchase tax on a prospective purchaser of real property frustrated the contract of purchase and sale. In answering that question in the negative, Warren J. canvassed various authorities holding that a purchaser’s inability to perform due to a lack of adequate funds will not generally justify a finding of frustration. She summarised the relevant principles as follows:

   [38] That a lack of money to perform does not, generally, give rise to frustration is not surprising because, as noted, frustration arises from a supervening event that results in performance becoming a thing radically different from that which was undertaken. While a lack of money affects a party’s ability to perform an obligation, it does not normally alter the nature or purpose of the obligation itself.

   [60] So too here, the collapse in the travel market goes to ETL’s “ability to perform”, rather than “the nature of the obligation itself.” This case is unlike the CRT decisions relied upon by ETL, where the very subject matter of the contract had been lost due to discrete, pandemic-related events. Although much of the consumer demand driving the business on which ETL and its members depend has abated, at least for the time being, not all of it has, and then not permanently. Moreover, although ETL chose to terminate a large part of its work force in the summer of 2020, at least some positions have been preserved and a recently-opened vacancy has been filled. ETL chose to relinquish Ms. Verigen’s branch of the business with a view to cutting operating costs so that it could better weather an ongoing storm. The fact that the pandemic had admittedly not brought about a frustration of the contract as of July 2020 makes it implausible for ETL to maintain that the contract had become frustrated only a few weeks later.

If you want a copy of this case email me at barry@barryfisher.ca

 

I was asked the other day by an employment lawyer if I had a precedent for a Mediation/Arbitration clause that could be used in an Ontario employment contract .

I didn’t have a precedent so I composed my own. Here it is :

Med/Arb Dispute Resolution Procedure:

The parties agree that any and all disputes arising from the interpretation or application of this agreement (including but not limited to the termination of this agreement) shall be resolved by the following process:

1. The parties shall select a sole Arbitrator within 30 days of the request to arbitrate. If the parties cannot agree on an Arbitrator, then one shall be appointed pursuant to section 10 of the Arbitration Act, 1991 .

2. The parties shall first attempt to resolve the issues in dispute by way of a mediation conducted by the Arbitrator.

3. If the matters are not resolved, then the Arbitrator will decide all outstanding issues by way of a final and binding arbitration pursuant to the Arbitration Act, 1991. There shall be no appeal from the award of the Arbitrator. 

4. This provision does not prevent either party from pursuing any statutory right that they may have before the appropriate statutory tribunal, although that party may choose instead to pursue this Med/Arb procedure.

5. The parties shall share the fees of the Arbitrator equally unless the Arbitrator orders otherwise.

6. The entire process shall take place in the Province of Ontario at a place chosen by the Arbitrator after consultation with the parties.

I look forward your comments and compliments. Feel free to use this clause in your practice.

Med/Arb can be a much better way of resolving non union disputes than resorting to the Courts . Try it!

In Watson v CUPE and Air Canada ( 2022 CIRB 1002) an unanimous decision of the Canada Industrial Relations Board dealt with a complaint by a member of the bargaining unit who claimed that the unions’ refusal to advance policy grievance against Air Canada’s mandatory vaccine policy was arbitrary .

Here is the Tribunal’s rationale

3. Balancing the Interests of Members

[62] The Board has repeatedly stated that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another (see McRaeJackson; and Crispo, 2010 CIRB 527). Unions routinely make difficult decisions that require balancing the interests of various groups amongst its membership. This is true in collective bargaining and in the decisions to present grievances.

[63] The complainant asserts that the union ignored the concerns and interests of approximately 10 percent of the members in the bargaining unit, who will bear the consequences of the policy. She maintains that the union acted in bad faith as it adopted a dismissive attitude and did not inquire sufficiently or communicate with those members who raised questions or concerns with respect to the mandatory vaccination policy.

[64] In the context of this policy, there is no doubt that those members who choose not to be vaccinated or not to disclose their vaccination status will be impacted differently than those who comply with the policy. However, the duty that is imposed on the union does not mean that it has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected; it means that the union must consider the interests of all members of the bargaining unit and act fairly. The Supreme Court of Canada made the following comments in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298:

The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here, a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union’s choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable.

(pages 1328–1329)

[65] In this case, the union supported vaccination generally as an effective means of ensuring the health and safety of its members. Even if this position by the union is in opposition to certain members’ views, this, in and of itself, is not sufficient to find the union in breach of its DFR. In the current pandemic, there is overwhelming scientific evidence of the effectiveness of vaccines in the effort to eradicate COVID-19. Health authorities across Canada have stated that vaccination is one of the most effective ways to prevent severe illness, hospitalization and death from COVID‑19.

[66] As Arbitrator Stout stated in Electrical Safety Authority:

[6] I note that this case is not about the merits of being vaccinated or the effectiveness of COVID‑19 vaccines. The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.

[67] The complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.

[68] The complainant suggests that the union failed to consult with those members that opposed the policy and that it did not provide a rationale for not advancing their concerns through the grievance procedure. However, the union is not obliged to consult each and every member when assessing whether to challenge an employer policy that impacts the membership in different ways. In a case involving a mandatory Hepatitis A vaccination policy, the British Columbia Labour Relations Board dismissed an employee’s allegation that the union had acted arbitrarily or in bad faith because it had not consulted with the membership prior to engaging in discussions with the employer. The Board agrees with the following reasoning in Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, BCLRB No. B138/2004; 2004 CanLII 65459 (Gordon):

Gordon also suggests that the Union discussions with the Employer about the mandatory inoculation program were improper because employees were not consulted. As the exclusive bargaining agent, part of the Union’s job in representing employees is to engage in discussions with the Employer regarding workplace issues: see, for instance, Section 53 of the Code. While consultation with employees over changes in working conditions such as occurred at the Capri is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached. In this case, the Union satisfied itself that the Employer’s actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law. In the circumstances, I do not find that the Union’s agreement to the program or its failure to consult employees beforehand supports a breach of Section 12.

(page 9)

[69] Although CUPE ACC did not engage in individual discussions with the complainant, it did communicate regularly with the membership to provide status updates in what was and continues to be a rapidly changing environment. Through these communications, the union made it clear that it was aware of the different views on the issue of vaccination. It was also aware of the complainant’s specific concerns communicated to it through Ms. Perrin’s letter of August 30, 2021. As this matter concerned a policy grievance, it concerned the membership as a whole. The union had to make a decision in the interest of all the employees in the bargaining unit. As in Gordon, the union satisfied itself that the policy was within the parameters allowed by the legislative framework and provided for exceptions based on human rights grounds. Further, the union made clear that it would pursue individual grievances to seek accommodations where those were possible. An individual grievance is in fact proceeding with respect to Ms. Watson’s particular circumstances. The Board notes that it would be premature at this stage to pronounce on the union’s approach in that process.

[70] The Board is satisfied that the union did not act in an arbitrary or discriminatory manner or in bad faith in its approach and communication with the membership as it relates to its decision not to pursue a policy grievance regarding the employer’s vaccination policy.

4. Management Rights Clause in the Collective Agreement

[71] The complainant also argues that the collective agreement does not contemplate a vaccination policy and that the employer has no management right to implement such an invasive medical procedure as a condition of employment. In her view, the union should have grieved the policy or demanded that the employer negotiate the terms of the policy. Failure to do so, in her view, is a breach of the union’s duty to represent her fairly.

[72] The union’s interpretation of the collective agreement differs from that of the complainant. The union is of the view that the absence of specific language in the collective agreement does not mean that the employer’s vaccination policy is invalid. Although the union recognizes that it can challenge a new policy through a grievance, it is of the view that the management rights clause in the collective agreement does not prevent the employer from introducing new policies, as long as these are not inconsistent with terms of the collective agreement or other applicable legislation, such as the CHRA.

[73] The Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement (see Crispo) and, as such, in this case, that it retains the discretion to determine whether it should challenge the vaccination policy as a proper exercise of management rights. The fact that the complainant disagrees with the union’s interpretation of the collective agreement is not sufficient to establish a breach of the union’s duty.

IV. Conclusion

[74] After careful consideration of the complainant’s allegations and the written submissions of the parties, the Board is not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith. The DFR complaint is dismissed.

[75] This is a unanimous decision of the Board.

If you want a copy of this case email me at barry@barryfisher.ca