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WCAT Workers’ Compensation Appeal Tribunal

150 – 4600 Jacombs Road Richmond, BC V6V 3B1 Telephone: (604) 664-7800 Toll Free: 1-800-663-2782 Fax: (604) 664-7898

WCAT Decision Numbers: WCAT-2008-01577 / WCAT-2008-01578 WCAT Decision Date: May 29, 2008

Panel: Marguerite Mousseau, Vice Chair

WCAT Reference Numbers: 052106-A & 052574-A _____________________________________________________________________ Section 257 Determinations In the Supreme Court of British Columbia Kelowna Registry No. S 66948 Andrew Vaughan Phillips v. Greyhound Canada Transportation Corp. In the Provincial Court of British Columbia (Small Claims Court) Penticton Registry No. C 26009 Graham Groves v. Greyhound Canada Transportation Corp., Andrew Vaughan Phillips and Charles Allen Newton _____________________________________________________________________

Applicants: Andrew Vaughan Phillips and Graham Groves (the “plaintiff” and the “claimant”) Respondents: Greyhound Canada Transportation Corp. Andrew Vaughan Phillips Charles Allen Newton (the “defendants”) Interested Person: Home Depot of Canada Inc. Representatives:

For Applicants: Andrew Vaughan Phillips Shirley Khan ROBERT O. LEVIN LAW CORPORATION Graham Groves Sean T. Pihl PIHL & ASSOCIATES



For Respondents: Greyhound Canada Transportation Corp. and Charles Allen Newton: James D. Cotter NIXON WENGER Andrew Vaughan Phillips Christopher J. Stenerson ICBC For Interested Person: Christina Huras MARSH CANADA



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Noteworthy Decision Summary

Decision: WCAT-2008-01577, WCAT-2008-01578 Decision Date: May 29, 2008 Panel: Marguerite Mousseau

Section 257 of the Workers Compensation Act – Items #AP1-1-1, AP1-1-5, AP1-1-7 of the Assessment Manual – Independent Operator Versus Worker - Volunteer Versus Worker This decision is noteworthy as it provides an analysis of whether a party is an independent operator or a worker, and whether another party is a volunteer or in an employment relationship. On January 22, 2003 the plaintiff and his passenger, the claimant, were driving south on a provincial highway in a town when they were involved in a collision with a bus, which was driven by the defendant. Both the plaintiff and the claimant requested determinations to certify the status of the parties under section 257 of the Workers Compensation Act (Act) in relation to legal actions they had each initiated. The plaintiff worked as a carpet installer, and was on his way to install carpet in a private residence in the town when the accident occurred. The carpet, which he was carrying in his van, had been purchased by the homeowner from a large hardware store in a nearby city. The plaintiff owned the van that he was driving. The claimant, who was a passenger in the van, was a friend of the plaintiff. He sometimes attended the work site when the plaintiff was installing a carpet and provided him with some assistance. He was intending to do that on the day of the accident. On the morning of January 22, 2003, he drove to the home of the plaintiff and they left from there to go to the work site in the plaintiff’s van. The claimant’s usual employment at that time was at a residential care home for people with disabilities. Neither the plaintiff nor the claimant were registered with the Workers’ Compensation Board, operating as WorkSafeBC, at the time of the accident. At issue was whether the plaintiff was an independent operator or a worker of the store from which the carpet had been purchased, and whether the claimant was a volunteer outside of the operation of the Act or in an employment relationship. The panel noted that the relationship between the plaintiff and the claimant does not fall clearly within the boundaries of an employment relationship. The fact that the two men were friends and that friendship played a role in their working together does not exclude an employment relationship but it does create more ambiguity in the relationship. Whether the relationship was one of employment depends on whether there was a contract of service under section 1 of the Act. The panel found that there was not an express contract of service, but that there was an implied contract of service based on the plaintiff’s reasonable belief that he was under an obligation to pay the claimant for his labour and the claimant’s understanding that he would receive a material benefit for the labour he provided. The panel concluded that the claimant was a worker at the time of the accident and any injuries he sustained in the accident arose out of and in the course of his employment. The panel found the plaintiff and his business did not exist as a business enterprise independently of the store at the time of the accident. He provided services to customers of the

RE: Section 257 Determinations Andrew Vaughan Phillips v. Greyhound Canada Transportation Corp. Graham Groves v. Greyhound Canada Transportation Corp. et al.

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store in keeping with the terms and conditions established by the store. Although he viewed himself as a sole proprietor and subcontractor, objectively, he was not sufficiently independent to be characterized as an independent contractor or firm. The plaintiff satisfied the definition of a worker under section 1 of the Act and policy item #AP1-1-1 of the Assessment Manual. Therefore, at those times when he was operating alone, the panel found that his relationship with the store was an employment relationship. However, there were times when he was unable to do the job himself. When he obtained assistance, for remuneration, he was in the position of having a worker and the policy at #AP1-1-5 of the Assessment Manual states that workers are individuals who do not employ other individuals. Accordingly, at those times when he hired a worker to help with installing a carpet, the panel found that he was an unregistered labour contractor under policy item #AP1-1-7 of the Assessment Manual. The panel concluded that at the time of the accident the plaintiff was a labour contractor under policy #AP1-1-7 of the Assessment Manual in that he had a worker and was supplying labour to the store. Since he was not registered with the Board at that time he was a worker of the store. According to the same policy, the claimant was also a worker of the store. Any injuries they sustained in the accident arose out of and in the course of their employment.


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WCAT Decision Numbers: WCAT-2008-01577 / WCAT-2008-01578 WCAT Decision Date: May 29, 2008 Panel: Marguerite Mousseau, Vice Chair Section 257 Determinations In the Supreme Court of British Columbia Kelowna Registry No. S 66948 Andrew Vaughan Phillips v. Greyhound Canada Transportation Corp. In the Provincial Court of British Columbia (Small Claims Court) Penticton Registry No. C 26009 Graham Groves v. Greyhound Canada Transportation Corp., Andrew Vaughan Phillips, and Charles Allen Newton Introduction This decision involves determinations of status with respect to the parties involved in two legal actions. Since both actions relate to the same motor vehicle accident, I will deal with the status determinations in one decision. On January 22, 2003 Andrew Vaughan Phillips and his passenger, Graham Groves, were driving south on Highway 3A in the town of Keremeos when they were involved in a collision with a bus owned by Greyhound Canada Transportation Corp. (Greyhound), which was driven by Charles Allen Newton. Mr. Phillips initiated a legal action against Greyhound in the Supreme Court and Mr. Groves initiated a legal action in Small Claims Court against Mr. Phillips, Mr. Newton and Greyhound. By letter dated August 10, 2005 counsel for Mr. Phillips in the Supreme Court action requested determinations under section 257 of the Workers Compensation Act (Act) in relation to that action. By letter dated September 12, 2005 counsel for Mr. Groves in the Small Claims Court action requested determinations under section 257 of the Act in relation to that action. Section 257 of the Act provides that the Workers’ Compensation Appeal Tribunal (WCAT) may be asked by a party or the court to make determinations and certify to the court concerning actions based on a disability caused by occupational disease, a personal injury or death.


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Issue(s) The issue on this application is the status of the parties. Jurisdiction Section 254(c) provides that WCAT has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under Part 4 of the Act, including all matters that WCAT is requested to determine under section 257. Part 4 of the Act applies to proceedings under section 257, except that no time frame applies to the making of the WCAT decision (section 257(3)). WCAT must make its decision based on the merits and justice of the case, but in so doing must apply applicable policies of the board of directors of the Workers’ Compensation Board, operating as WorkSafe BC (Board), (section 250(2)). WCAT is not bound by legal precedent (section 250(1)). The WCAT decision is final and conclusive and is not open to question or review in any court (section 255(1)). The court determines the effect of the certificate on the legal action. Background The matters that are not in dispute are that Mr. Phillips lived in Kelowna at the time of the accident and he worked as a carpet installer. He was on his way to install carpet in a private residence in Keremeos when the accident occurred. The carpet, which he was carrying in the van, had been purchased by the homeowner from Home Depot in Kelowna. Mr. Phillips owned the van that he was driving. Mr. Groves, who was a passenger in the van, was a friend of Mr. Phillips. He sometimes attended the work site when Mr. Phillips was installing a carpet and provided him with some assistance. He was intending to do that on the day of the accident. On the morning of January 22, 2003, he drove to the home of Mr. Phillips and they left from there to go to the work site in Keremeos in Mr. Phillips’ van. Mr. Groves’ usual employment at that time was at Hildebrandt Homes, a residential care home for people with disabilities. A memorandum from the Board’s Assessment Department, dated October 19, 2005, states that Mr. Phillips was not registered with the Board as either Andrew Vaughan Phillips or as Andrew Vaughan Phillips dba Midland Flooring at the time of the accident. Mr. Groves was also not registered with the Board at that time. It has been submitted that Mr. Phillips was an independent operator who did not have compensation coverage at the time of the accident. The opposing view is that Mr. Phillips was a worker of Home Depot and was covered under the Act as a result. With regard to the status of Mr. Groves, it has been submitted that he was assisting Mr. Phillips out of friendship and that he should be characterized as a volunteer and outside of the operation of the Act. The opposing view is that Mr. Groves was providing


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a service for which he would receive remuneration from Mr. Phillips and their relationship with respect to the carpet installation job in Keremeos was an employment relationship. Evidence Mr. Phillips gave evidence in a statement made to the Insurance Corporation of British Columbia (ICBC) on January 23, 2003, a statement provided to Greyhound dated February 11, 2003, his examination for discovery in the Supreme Court action, conducted on December 18, 2006, and an affidavit sworn on August 3, 2007. Mr. Groves provided a statement to ICBC on January 24, 2003 and also provided written answers to questions posed in a document called “Questions for Claimant.” This document refers to “Groves v. Greyhound,” and provides a claim number and the date of the accident. It was, apparently, created by ICBC and the list of questions relates to whether there was an employment relationship between Mr. Groves and Mr. Phillips with respect to the carpet installation in Keremeos. There is also an affidavit sworn by Mr. Groves on May 28, 2007. In addition, counsel for the parties and a representative of Home Depot have provided a number of documents regarding the status of the parties. In his statement to ICBC of January 23, 2003, Mr. Phillips said he and Mr. Groves “were travelling from Kelowna to Keremeos for work.” He said that he was a carpet layer and Mr. Groves was his helper; Mr. Groves was a nurse but he helped Mr. Phillips on occasion when he needed some extra help. He paid Mr. Groves in cash. He said that he was self-employed and had a sole proprietorship. He also said that he worked almost exclusively for Home Depot. On the day of the accident he was on his way to Keremeos to do a job for Home Depot. Neither he nor Mr. Groves were registered with the Board. In his subsequent statement, prepared for Greyhound, Mr. Phillips repeated that he was a floor installer and his major contract for work was with Home Depot. He was on his way to a job in Keremeos and carrying about 90 yards of carpet in the van when the accident occurred. He said that he had his “helper” Graham Groves in the van with him. They had left Kelowna just after 7 a.m. and were at the intersection where they would be turning right in order to get to the client’s place when their van was rear-ended by the Greyhound bus. At his examination for discovery, Mr. Phillips stated that his business was not incorporated. (Q 26) At the time of the accident, he got his work as a carpet layer “subcontracting through the Home Depot.” (Q 34) When asked whether that was his main source of work he replied, “Pretty well, yeah.” (Q 36) When asked whether he was employed by Home Depot, he said “No, it’s all subcontractor.” (Q 37)


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Mr. Phillips said that he did not have employees but occasionally he did need some help. In this regard, he stated:

45 Q. And what about the jobs, are there jobs where you need somebody to help you?

A. Occasionally, I need people, you know, it all depends, you

know. A lot of times I’m on a job where the guys, you know, it’s new construction, the guys will be more than happy to help me. They’ll have labourers there or something.

Basically if I do need a hand, it’s like to lift some big pieces of carpet in and whatnot, and occasionally I’ll take a guy with me or whatever, and I’ll just have to pay him some cash in hand or whatever, basically to get the carpet in and -

46 Q. So, the main times that you need assistance are to actually

lift the big pieces in?

A. Yeah, I don’t employ - - I don’t - - you know, you’re either a carpet layer or you’re not kind of thing, right, so - -

47 Q. Sorry, I don’t understand that. You’re either a carpet layer or

you’re not?

A. Well, most guys, if they can lay carpets, they can seam it together and kick it in, then they end up working - - they do their own thing, right? They don’t like to work for somebody for ten, 15 bucks an hour really.

Mr. Phillips said that he had known Mr. Groves for about six years. Prior to contracting for Home Depot, Mr. Phillips had been contracting for Beaver Lumber and Mr. Groves had been working there at that time. They became friends and whenever Mr. Phillips needed a hand, Mr. Groves would help him out. (Q 49 – 50) With regard to payment for Mr. Groves’ assistance, Mr. Phillips gave the following evidence:

51 Q. And so what would you pay him?

A. It just depend on the day, whatever it was, you know, just - - I used to pay him just cash kind of thing. And we figure it out at the end of the day or whatever. I can’t remember exactly now what was what.

52 Q. Something - -


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A. Because it was casual labour, right, so - -

53 Q. So, depending on the size of the job and the money involved, would that depend on how much you paid him?

A. It usually depended on how long he was there, right? If he

was there five hours, maybe I’d pay him 60 bucks or something, I don’t know, it just depended not on how much money I made, it was what was fair, right? If we were out and about, then I’d buy him lunch and stuff too maybe, you know.

54 Q. But you would always pay him something for his time; is that

right? A. Oh, yeah, he didn’t do it for free, yeah.

55 Q. You wouldn’t expect him to help you out for free?

A. No. Mr. Phillips also stated that, since he has been at Home Depot, he has worked every day, five days a week. (Q 82) He thought that Mr. Groves helped him maybe a couple of times a month; it fluctuated, depending on what Mr. Groves was doing as well. Mr. Groves was between jobs since he had lost his job at Beaver Lumber and he was getting back into being a nurse. (Q 89 – 91) In terms of the work that he did for Home Depot, Mr. Phillips said that he would go out and measure the job and say how much work and material would be required to do it and Home Depot would “build the price.” (Q 98) Home Depot paid him for measuring the job and for installing the carpet. At the end of a job, the customer would sign a sheet saying that he had done the job. (Q 100 - 102) On average, carpet installers were supposed to do around 75 to 100 yards a day. (Q 125) He thought that the job in Keremeos was at least a two-day job. There were trip charges and some little extras because it was out of town. He usually got more money for that. (Q 130) The job involved putting down a significant amount of carpet, probably between 150 and 200 yards. (Q 131 and 133) Typically, Home Depot would cut the carpet to his measurements and most of the time he could carry the pieces himself but, occasionally, there would be a couple of big pieces of 35 or 40 feet or more that had to be taken up some stairs and around a corner and he did need a hand to do that. (Q 137 and 138) At the time of the examination for discovery, Mr. Groves was no longer doing any work for Mr. Phillips; he was nursing full time. (Q 280)


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Finally, in the affidavit sworn on August 3, 2007, Mr. Phillips stated that, prior to the accident, about 90% of his work was obtained through Home Depot. Between the time that Beaver Lumber closed in 2002 and when he started contracting for Home Depot in 2003, he had obtained his work by word of mouth. After he started contracting with Home Depot, he still “did some odd jobs through word of mouth.” He repeated much of the information regarding his relationship with Mr. Groves that he had provided in his examination for discovery and other documents. He stated that he had met Mr. Groves when he was subtracting from Beaver Lumber. Mr. Groves was in the flooring sales department and he had learned that he had experience in the flooring installation industry. As a result, he would occasionally ask him to help with a flooring installation and, over time, they became friends. Mr. Groves usually carried pieces of carpet from the van into homes, did cleanup, laid down “smooth edge,” (the strips with nails sticking out that grab onto the underside of the carpet) and underlay, and helped position carpet. He usually paid Mr. Groves an amount that seemed fair based on how much work he did, the difficulty or length of the job and how much the job was worth. There was no hourly rate. With regard to the Keremeos job, he said that he would have needed Mr. Groves to help carry the carpet from his van into the house and maybe help lay down some smooth edge and do cleanup. After the job was done, he would have worked out how much to pay Mr. Groves. Since they never did the Keremeos job, Mr. Groves did not receive any pay for it. In his statement made to ICBC on January 24, 2003, Mr. Groves gave his account of the assistance that he provided to Mr. Phillips and the basis on which it was provided. He stated that Mr. Phillips installs carpet and he occasionally helped him out when he was available and Mr. Phillips needed help. He said that Mr. Phillips paid him cash for this extra help or he sometimes just bought dinner or something. Mr. Groves said that he helped him out more as a friend than for the money. He stated that he was employed full time as a care support giver for Hildebrandt Homes. The accident had occurred at approximately 8:30 a.m. In a letter dated January 8, 2004, Tim Reichelt, Manager, Hildebrandt Homes, confirmed that Mr. Groves was employed with Hildebrandt Homes at the time of the accident. He said that Mr. Groves was a relief staff and provided a list of the shifts that Mr. Groves had been unable to “pick up” due to the accident. Mr. Reichelt stated that there had been shifts available for Mr. Groves every day, from January 22, 2003 to January 29, 2003, inclusive. The shift on January 22 was an 8 hour shift from 2 o’clock to 10 o’clock. As previously noted Mr. Groves also provided written responses to a set of questions put to him by ICBC in a document entitled “Questions to Claimant.” Mr. Groves indicated that there was no “start date” regarding his work with Mr. Phillips; he only


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assisted on occasion, when Mr. Phillips needed the extra help. He helped Mr. Phillips “pack in material” and sometimes helped him to clean up. In response to a question as to whether he was paid by cheque or cash, Mr. Groves had replied that he was not paid by Mr. Phillips. He stated that he did not bring tools with him and Mr. Phillips provided whatever tools were needed to clean up. With regard to how Mr. Groves would get to a work site, he said that it varied. If Mr. Phillips was working in his neighbourhood, he might stop by and pick up Mr. Groves. Sometimes Mr. Groves drove himself to the job site or sometimes he would meet Mr. Phillips at some other location and then they would travel together to the job site. The reasons for these different ways of getting to the jobsite varied; it may have been out of the way for Mr. Phillips to pick up Mr. Groves sometimes and other times Mr. Groves may have had other commitments and would have to meet Mr. Phillips at the work site. In the affidavit sworn on May 28, 2007, Mr. Groves said that he accompanied Mr. Phillips on his work trips out of friendship; sometimes he went simply as a companion and helped out very little with labour. If Mr. Phillips called when Mr. Groves had nothing else planned, he would go along just for the ride. At the time of the accident, he was a care support giver. Although he had previously worked in the flooring industry, he did not wish to work in that industry any longer. He noted the discrepancy between his ICBC statement, in which he said that Mr. Phillips paid him cash or bought him dinner for his help and the second document in which he said that Mr. Phillips did not pay him for his help. He said that, in stating that Mr. Phillips paid him cash or bought him dinner, he was indicating a practice which involved Mr. Phillips giving him a gift or display of appreciation rather than payment for services. Sometimes he would be at a job site with Mr. Phillips and Mr. Phillips would treat him to a few beers. Mr. Groves did Mr. Phillips the favour of helping him out and Mr. Phillips reciprocated by showing his appreciation with these gestures. There was never any structured or other form of remuneration for the work done. Mr. Groves said that he would bring along a bag containing something to occupy his time when he attended Mr. Phillips’ job sites. Often, he would help for a few minutes or half an hour and then would occupy his time with reading until Mr. Phillips could use his help again. Mr. Phillips never paid Mr. Groves for travel time or insurance or repairs to his vehicle or for gasoline or mileage for his travel to and from work sites. Mr. Groves said that, on the day of the accident, he had driven himself, in his father-in-law’s vehicle, to the home of Mr. Phillips, arriving at around 6:00 a.m. He and Mr. Phillips then left for the work site in Mr. Phillips’ van. Mr. Phillips had driven him to the work site that day as it was some distance away. This was “sort of a road trip” for Mr. Groves as he was just planning to help Mr. Phillips carry in the carpet and then he would occupy himself until the ride home or until Mr. Phillips needed some other help. There are also entries made in a file that was opened for the plaintiff by the Board’s Assessment Department that are relevant to this application. A notepad entry dated


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January 18, 2002 indicates that Mr. Phillips submitted an application to register with the Board. It states that he is a proprietor, with no employees, who contracts to one firm only, Home Depot, where he is a flooring contractor. The materials are purchased from Home Depot by the client and Home Depot dispatches Mr. Phillips to the residence to complete the installation. The application did not include any reference to other contracts. Accordingly, the Assessment Department concluded that Mr. Phillips was a worker and could not be registered with the Board. The next entry is dated August 22, 2005. It states that a telephone call has been received from a representative of Home Depot who stated that Mr. Phillips had tried to register his proprietorship for the last seven years. The representative had been informed that Mr. Phillips had contacted the Assessment Department in 2002 and at that time he had been deemed to have the status of a worker. The representative stated that Home Depot requires its contractors to have other contracts. A third entry, dated October 3, 2005, indicates that a form for registration has been completed by Mr. Phillips. The form indicates that Mr. Phillips’ firm installs carpet and flooring for Home Depot. There is no indication that the firm has simultaneous contracts and there are no workers. The entry indicates that Mr. Phillips has been deemed a worker. The next entry is dated October 24, 2005. It indicates that Mr. Phillips has again submitted a registration form. He is requesting Personal Optional Protection (POP). This time he has indicated that he is in the flooring installation business and he “provides labour only to his contracts and homeowners.” He has indicated that he advertises his services in the Yellow Pages and that he is open to the general public. The Board officer making the entry indicates that Mr. Phillips will be permitted to register as he provides installation services to “homeowners and his contracts and advertises his services in the yellowpages [sic].” Law and Policy A “worker” is defined in Section 1 of the Act to include:

a) a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise; … f) an independent operator admitted by the Board under section 2(2).


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An employer is defined as follows:

"employer" includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry;

Section 2(2) of the Act provides that the Board may direct that Part 1 of the Act applies “to an independent operator who is neither an employer nor a worker as though the independent operator was a worker.” Item #6.20 of the Rehabilitation Services and Claims Manual, Volume II (RSCM II), “Voluntary and Other Workers Who Receive No Pay,” states:

Usually a "worker" is paid. Therefore, it is not surprising that voluntary or other workers receiving no payment for their work are not generally considered workers under the Act. On the other hand, some workers of this type are expressly included within the scope of the Act, and the Board is given express power to admit others at its discretion. Furthermore, the receipt of some sort of payment by such workers may lead to their being workers under the Act. Further information about volunteers can be found in the policies in Items AP1-1-5 and AP1-3-1of the Assessment Manual.

The term “independent operator” is not defined in the Act. However, policy at item #AP1-1-1 of the Assessment Manual provides the following definitions:

Worker - A worker is an individual who performs work under a contract with an employer and has no business existence under the contract independent of the employer. "Worker" is defined under section 1 for purposes of Part 1 of the Act. A worker cannot be an "independent firm". Independent Operator - "Independent operator" is not defined in the Act. The term is referred to in section 2(2) of the Act as being an individual "who is neither an employer nor a worker" and to whom the Board may direct that Part 1 applies as though the independent operator was a worker. An independent operator performs work under a contract, but has a business existence independent of the person or entity for whom that work is performed. An independent operator is an "independent firm". Labour Contractor – The Board has created the term “labour contractor” to assist it in determining whether an individual is an employer, worker or independent operator. A labour contractor who is a worker cannot be an “independent firm”. For more information about “labour contractors”, see Item AP1-1-7.


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Policy at item #AP1-2-3 of the Assessment Manual provides that, under the authority of section 2(2) of the Act, an unincorporated independent operator without workers may purchase coverage under the Act by purchasing POP. Policy at item AP1-1-3 “sets out the general principles for determining whether a contract to perform work creates an employment relationship or a relationship between independent firms.” It goes on to set out general principles and specific guidelines. With regard to the general principles, the policy states:

In distinguishing an employment relationship from one between independent firms, there is no single test that can be consistently applied. The factors considered include:

• whether the services to be performed are essentially services of

labour;

• the degree of control exercised over the individual doing the work by the person or entity for whom the work is done;

• whether the individual doing the work might make a profit or loss;

• whether the individual doing the work or the person or entity for

whom the work is done provides the major equipment;

• if the business enterprise is subject to regulatory licensing, who is the licensee;

• whether the terms of the contract are normal or expected for a

contract between independent contractors;

• who is best able to fulfill the prevention and other obligations of an employer under the Act;

• whether the individual doing the work engages continually and

indefinitely for one person or works intermittently and for different persons; and

• whether the individual doing the work is able or required to hire

other persons.

The major test, which largely encompasses these factors, is whether the individual doing the work exists as a business enterprise independently of the person or entity for whom the work is done. No business organization


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is completely independent of all others. It is a question of degree whether a party to a contract has a sufficient amount of independence to warrant registration as an employer. Many small parties may only contract with one or two large firms over a period of time. Yet they are often independent of the person with whom they are contracting in significant respects. For example, they must seek out and bid for their own contracts, keep their own books and records, make income tax, unemployment insurance and CPP [Canada Pension Plan] deductions. They also retain the right to hire and fire their own workers and exercise control over the work performed by their workers. These factors must be considered.

Policy at item #AP1-1-5 of the Assessment Manual sets out guidelines for determining who is a “worker” under Part 1 of the Act. It states:

Workers include individuals not employing other individuals and who fall into the following categories:

• individuals paid on an hourly, salaried or commission basis;

• individuals paid on commission or piecework where the work is

performed in the employer’s shop, plant or premises;

• individuals paid commission, piecework or profit sharing where they are using equipment supplied by the employer;

• individuals operating under circumstances where the “lease” or

“rental” of equipment or “purchase” of material from their employer is merely a device to arrive at a wage or commission amount; and

• labour contractors who elect not to be registered as

independent operators.

A worker cannot be an “independent firm”. The policy at AP1-1-7 of the Assessment Manual sets out the guidelines for determining who is a labour contractor and the significance of that determination. The policy provides:

Labour contractors may voluntarily choose to register as an employer (proprietorship or partnership) if they have workers or obtain Personal Optional Protection as an independent operator if they do not have


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workers. A labour contractor who takes one of these actions is an “independent firm” for purposes of Item AP1-1-3. Labour contractors who choose not to register as an employer (if they have workers) or obtain Personal Optional Protection as an independent operator (if they do not have workers) are considered workers of the firm for whom they are contracting, and that firm is responsible for assessments. Any persons employed by the labour contractor to assist them are also considered workers of the firm with whom the labour contractor is contracting. A worker cannot be an “independent firm”. If the labour contractor is registered, the proprietor or partner is not covered unless Personal Optional Protection is in effect. Labour contractors include proprietors or partners who:

• have workers and supply labour only to one firm at a time;

• are not defined as workers, do not have workers, or do not supply major materials or major revenue-producing equipment but who contract a service to two or more firms on an ongoing simultaneous basis; or

• may or may not have workers but contract a service

including one piece of major revenue-producing equipment to a firm or individual.

Persons who are normally labour contractors and who employ a worker are considered independent firms for any period of time that they are not contracting with another person or entity.

Status of Graham Groves Ms. Khan, counsel for Mr. Phillips in the Supreme Court action submitted that Mr. Groves was helping Mr. Phillips with the carpet installation as a volunteer. He was there to keep the applicant company and to provide assistance if needed. He did not receive agreed upon wages or remuneration. Ms. Johannson, acting on behalf of Mr. Groves in the Small Claims Court action, submitted that Mr. Groves does not satisfy any of the statutory definitions of a worker. Specifically, with respect to the definition in section 1(a) of the Act, she submitted that there was no contract of service, express or implied, between Mr. Groves and Mr. Phillips. For a contract to exist, the parties must have intended to create a contract and the evidence is that Mr. Groves showed no intention of entering into a contract with Mr. Phillips. There is no letter confirming that Mr. Groves was an employee of


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Mr. Phillips, such as was provided by Hildebrandt Homes. In addition, Mr. Groves stated, in his affidavit, that he was not interested in continuing in the flooring industry. She refers to Mr. Groves’ evidence that he and Mr. Phillips were merely exchanging tokens of appreciation and she submits that there was no agreement that would create obligations and no consideration was exchanged. Any cash received was a gesture of appreciation and not comparable to the receipt of money in an amount calculated to compensate for work time based on an hourly rate or salary previously agreed upon by the parties. Mr. Groves’ answers to questions posed by ICBC all indicate that he considered himself a care-giver, not a flooring installer. Since neither party was under any obligation to perform their end of a bargain, there was no bargain at all. Any benefit they gave each other was an expression of friendship. Since Mr. Phillips had never paid Mr. Groves for any work performed, Mr. Groves was best viewed as a volunteer, as contemplated by policy at #6.20 of the RSCM ll. The representative referred to WCAT Decision #06-02800 in which there was an issue of whether the plaintiff was a worker or a volunteer. The panel found that the plaintiff was a worker in that situation but, the representative notes, the circumstances differed significantly from those in the present case. The representative also referred to WCAT Decision #2005-04895 in which crossing guards were found to be workers. She submits this decision makes it clear that the payment of an hourly rate does not always indicate an employment relationship. That case involved a question of whether funds received by the members of a registered non-profit society who provided crossing guard services were honoraria or a form of wage which would bring the crossing guards within the purview of the Act as workers. In that case, the panel concluded that the crossing guards were workers. Finally, the representative submitted that there was a complete absence of hard evidence to support that Mr. Groves was an employee of Mr. Phillips. In a subsequent submission, Mr. Pihl, counsel for Mr. Groves in the Small Claims Court action, submitted that Mr. Groves provided assistance to Mr. Phillips only sporadically and that he did so out of friendship and in order to spend time together. It was not to earn income since he already had full-time employment as a nurse. There was no predetermined or agreed upon remuneration for the assistance provided by Mr. Groves nor was there any custom as to the amounts paid or the nature of the payments. Ultimately, this was a service provided out of friendship. Mr. Stenerson, counsel for Mr. Phillips as defendant in the Small Claims Court action, submits that Mr. Groves was a worker of Mr. Phillips at the time of the accident. He submits that Mr. Groves entered into an oral/implied contract of service with Mr. Phillips in that he agreed to help Mr. Phillips carry out the Keremeos job by providing manual labour. It was implied that Mr. Groves would receive payment, either in cash or food/beer, for the work he provided, as usual.


16

Counsel submits that Mr. Groves was not a “volunteer”; he was not donating his time to a non-profit organization or an event or helping to further a cause, as is usually the case with volunteers. Rather, Mr. Groves provided skilled labour in an industry in which he had considerable experience. Counsel submitted that cash, food and beer are widely accepted forms of “payment” in the labour based industry. Furthermore, the payment was not merely a token payment. It was calculated by Mr. Phillips “based on fairness and the length, value and difficulty of the job.” That Mr. Groves received no payment for the Keremeos job and that he and Mr. Phillips were friends does not mean that he was a volunteer rather than a worker. Mr. Cotter, counsel for Greyhound in both actions also submits that Mr. Groves was a worker in that Mr. Groves was being paid by Mr. Phillips to assist him in installing carpets a couple of times a month. Mr. Phillips stated that he would pay Mr. Groves cash at the end of the day based on what he considered fair and unrelated to how much Mr. Phillips himself had been paid. This is, in effect, an employment relationship. Mr. Groves was a labour contractor, much as was Mr. Phillips, in that he supplied his labour and had no independent existence as a business enterprise. He was wholly dependant on Home Depot and Mr. Phillips for employment of this nature. Mr. Cotter suggests that it is unlikely Mr. Groves had nothing better to do than to travel to a worksite and assist in laying carpet as a social activity. Ms. Christina Huras made representations on behalf of Home Depot, which was invited to participate as a putative employer and, therefore, an interested party in the application. Ms. Huras submitted that Mr. Groves was a worker under the Act and Mr. Phillips was his employer. Mr. Groves was under an employment contract with Mr. Phillips to perform casual work in relation to the installation of carpet. Mr. Phillips was his employer, not Home Depot. Reasons and Decision The relationship between Mr. Groves and Mr. Phillips does not fall clearly within the boundaries of an employment relationship. The fact that the two men were friends and that friendship played a role in their working together does not exclude an employment relationship but it does create more ambiguity in the relationship. Whether the relationship was one of employment depends on whether there was a contract of service under section 1 of the Act. Since I do not find that there an express contract of service, I have considered whether their conduct may be construed as creating an implied contract of service. The question of whether there was an implied contract of service was addressed in WCAT Decision #2007-03752. In that case, the panel was required to determine whether the plaintiff was a worker of the defendant production company. The plaintiff was a full-time student at a film school who had previously worked for the company on


17

a volunteer basis as a means of gaining experience in the film industry. While attending a film shoot, he was injured. The company sent him a cheque after the incident and sought to characterize the plaintiff as an employee of the company for the purposes of the shoot during which he was injured. The WCAT panel ultimately concluded that, based on the evidence surrounding the film shoot and the pattern of conduct of the parties prior to that, there was no implied contract of service. In considering the basis upon which an implied contract of service could be found, the panel cited the following authorities:

A number of authorities have said that the test of whether a contract can be implied from conduct is objective rather than subjective. An example is the following passage from St. John Tug Boat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614:

The test of whether conduct, unaccompanied by any verbal or written undertaking, can constitute an acceptance of an offer so as to bind the acceptor to the fulfilment of the contract, is made the subject of comment in Anson on Contracts, 21st ed., p. 28, where it is said:

The test of such a contract is an objective and not a subjective one, that is to say, the intention which the law will attribute to a man is always that which his conduct bears when reasonably construed, and not that which was present in his own mind. So if A allows B to work for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance.

In this connection reference is frequently made to the following statement contained in the judgment of Lord Blackburn in Smith v. Hughes [(1871), L.R. 6 Q.B. 597 at 607.], which I adopt as a proper test under the present circumstances:

If, whatever a man's real intention may be he so conducts himself that a reasonable man would believe that he was consenting to the terms proposed by the other party and that


18

other party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

The panel in WCAT Decision #2005-04895 also emphasized the need to objectively construe the relationship between a non-profit society and its members in order to determine whether the members were acting as workers or volunteers in providing crossing guard services. In that case, the non-profit society contracted with the local school district to provide crossing guard services before and after school. The society paid a daily rate to its members for providing this service which amounted to slightly more than the minimum wage rate. The society also obtained insurance for its members and provided training and uniforms. The society considered that it was providing a public service through volunteers who were paid an honorarium. The panel, however, was of the view that the relationship between the society and its members, when viewed objectively, was more in the nature of an employment relationship than that of a volunteerism. In arriving at this conclusion the panel reasoned as follows:

To the extent the Society enters into an agreement to provide services on defined terms and conditions, and the role being performed by its members is one which readily accords with the usual types of "services" that would form the subject of a contract of service or contract of hire, it may be concluded that there is an employment relationship which comes within the terms of Part 1 of the Act. The test for distinguishing between an honorarium and a wage, and between voluntary acts and employment, should be based on the actual nature of the activity and the resulting legal relationships, rather than on the motive or purpose of the Society or its members. While the intentions of the parties are a factor to be taken into account, it is also necessary to evaluate "the terms of the contract and the operational routines of the relationship" to determine the nature of the relationship (for the reasons set out in Decision No. 32).

Decision No. 32, “Re The Employment Relationship,” (1973-74) 1 WCR 127 is a decision of the former commissioners in which it was determined that a relationship characterized by the parties as a relationship between independent contractors was, for the purposes of workers’ compensation coverage, an employment relationship. Similarly, the panel in WCAT Decision #2006-02800 concluded that an individual providing manual labour on a park construction project was a worker as opposed to a volunteer. In that case, the plaintiff had been volunteering his time and when he ran into financial difficulties the defendant, who was a park trustee, started to pay him from her own funds. The sums that she paid were calculated on the basis of an hourly rate of $12.00. Her evidence was that she viewed these payments as gifts; the plaintiff’s evidence was that he had been hired to work on the project. Although the panel


19

accepted the stated intention of the person who paid the money as wanting to assist the plaintiff by giving him gifts, the panel could not ignore the “operational routines of the relationship” which effectively resulted in the plaintiff providing labour for a rate of $12.00 per hour over approximately a two-month period. In the present case, the relationship between Mr. Phillips and Mr. Groves did not include the operational structures identified in WCAT Decision #2005-04895 nor the consistent rates of pay found in both WCAT Decision #2006-02800 and WCAT Decision #2005-04895. I also consider that friendship was likely a motivating factor for Mr. Groves and that he likely did not see Mr. Phillips as his employer. It appears that he gave up a shift at Hildebrandt Homes on the day of the accident and nursing was his preferred work. Instead, he was prepared to be at Mr. Phillips’ house at 6:00 a.m. and to set out on a drive of one to one and half hours in winter driving conditions in order to provide intermittent assistance to Mr. Phillips. These tend to support friendship as a fairly significant motivating factor on his part. On the other hand, Mr. Phillips did require assistance with some carpet installations and, once or twice a month, he asked Mr. Groves to help him. Mr. Phillips paid cash or bought Mr. Groves dinner or beers in return for this assistance. Accordingly, there was a history of Mr. Groves providing labour for Mr. Phillips and of Mr. Phillips providing some form of benefit to Mr. Groves in exchange for that labour. Although Mr. Groves characterized the provision of labour by him and cash, food or beer by Mr. Phillips as gestures of friendship, viewed objectively, I consider that this is reasonably viewed as an exchange of labour for remuneration. I accept that the receipt of cash or food was not likely the sole reason for providing assistance to Mr. Phillips; however, I consider that Mr. Phillips’ view that Mr. Groves was not helping “for free” was a reasonable apprehension in the circumstances. Mr. Phillips’ evidence was that he determined what was fair in the circumstances and Mr. Groves apparently acquiesced in this arrangement. The evidence also indicated that Mr. Phillips required assistance in order to do the job in Keremeos; if Mr. Groves had not been able to assist, he would likely have had to find someone else. On the whole, I consider that the element of friendship is outweighed by Mr. Phillips’ reasonable belief that he was under an obligation to pay Mr. Groves for his labour and Mr. Groves’ understanding that he would receive a material benefit for the labour he provided. As a result, I consider that Mr. Groves was providing casual labour to Mr. Phillips on the day of the accident under an implied contract of service. I have, however, also considered the application of section 250(4) of the Act, which states:

If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is


20

evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.

In considering the application of this provision to a determination under section 257 of the Act, the panel in WCAT Decision #2005-01643 reasoned as follows:

Section 257(3) of the Act provides that Part 4 of the Act applies to an application under section 257 as if the proceedings were an appeal under Part 4. A literal interpretation of section 250(4) might draw a distinction between an appeal respecting the compensation of a worker, and a determination of status under section 257. I am inclined, however, to interpret section 250(4) more broadly as being concerned with the scope of workers' compensation coverage. On the basis of this interpretation, were the evidence regarding the plaintiff's status to be evenly balanced, section 250(4) would require that a determination be made in favour of providing workers' compensation coverage. For reasons similar to those expressed in Appeal Division Decision #2002-0252, I find that this would be the case even if that result was contrary to the wishes of the worker. My reasoning on this point is not necessary to my decision, as I did not find the evidence to be evenly balanced.

In Appeal Division Decision #2002-0252, the panel considered the application of section 99 of the Act in an application for a determination under what was then section 11 of the Act. Section 99 of the Act was replaced by section 250(4) on March 3, 2003. Although the language has changed, the substance is, essentially the same. In deciding how this section should be interpreted in relation to an injured worker who desired to be excluded from compensation coverage so that he could take legal action against the defendant, the panel reasoned as follows:

In the circumstances of this case, I find that the disputed possibilities are evenly balanced. Accordingly, I will apply section 99 of the Act, which provides:

The board is not bound to follow legal precedent. Its decision must be given according to the merits and justice of the case and, where there is doubt on an issue and the disputed possibilities are evenly balanced, the issue must be resolved in accordance with that possibility which is favourable to the worker.

In this case, all three parties to the legal action are workers. I interpret the intent of section 99 to be that where the disputed possibilities are evenly balanced, the disputed issue should be resolved in favour of according coverage under Part 1 of the Act (whether this involves the provision of


21

workers’ compensation benefits to an injured worker, or certification as to a defendant’s status under sections 11 of the Act for the purpose of claiming immunity to a legal action under section 10 of the Act). I note, in this regard, the policy concerning the interpretation of section 99 set out in Decision No. 330 (Re Scope of Employment, 5 WCR 88, August 25, 1980) which states at page 93:

We recognize the practical aspect of giving each claimant compensation or the right to sue just as he wishes. However, we cannot conclude that this would be in accordance with the mandate given us by the Workers’ Compensation Act. We feel it is our obligation to determine the rights and status of workers, dependants and employers in accordance with the terms of the Act and not in accordance with their personal wishes. The Board is not bound by legal precedent, but is bound by the requirement in the Act that compensation is payable for an injury arising out of and in the course of the employment. Its obligation to decide in accordance with the merits and justice of the case does not mean that it is free to make whatever decision it considered fair without regard to the terms of the Act. If the Board considers that an injury arose out of and in the course of the employment, then its decision must be to that effect, whatever may be the personal wishes of the worker, dependants or employer concerned.

I agree with the reasoning in these decisions regarding the effect of section 250(4) with respect to determinations of status made under section 257 of the Act. Although I find that the evidence supporting an employment relationship somewhat outweighs the evidence that Mr. Groves’ actions were those of a volunteer, even if the findings were evenly balanced, Mr. Groves would still be considered a worker. The next question is whether the accident arose out of and in the course of Mr. Groves’ employment with respect to the carpet installation job. Although the evidence indicates that he was paid only for the time that he was at the job, Mr. Groves had to undertake this journey in order to assist Mr. Phillips. Although he stated that this was a sort of “road trip” for him, the destination was the residence where he was going to assist Mr. Phillips with the installation of the carpet. Having found this was an employment relationship for the purposes of the job in Keremeos, I consider that Mr. Groves’ journey from the home of Mr. Phillips to the work site in Keremeos was covered under policy item #18.40, “Travelling Workers.” This policy provides:

Employees whose job involves travelling on a particular occasion or generally are covered while travelling. Where they do not travel to their


22

employer’s premises before beginning the travelling required by their work, they are covered from the moment they leave their residence. However, they will not be covered if they first travel to their employer’s premises even though their vehicle has been provided by their employer and/or they need that vehicle to do the travelling required by their work.

Based on all of the above, I find that Mr. Groves was a worker at the time of the accident and any injuries he sustained in the accident arose out of and in the course of his employment. Status of Andrew Vaughan Phillips Ms. Khan submitted that Mr. Phillips installed carpet as an independent contractor in that he arranged his own schedule, used his own tools, and, with the exception of the cost of carpeting supplies, he paid for his expenses. He invoiced the customer for his services. Although most of his work was contracted to Home Depot, he also had other contracts which he fulfilled through his own scheduling. Home Depot did not pay benefits. Mr. Phillips’ business existed independently from Home Depot, which was one of the customers with whom he contracted. Mr. Cotter submitted that Mr. Phillips’ relationship with Home Depot did not meet any of the indicia of a relationship between independent operators. He submitted that all of his work at the relevant time was obtained through Home Depot, which paid him directly for his work and supplied him with materials. He measured jobs at the request of Home Depot, then completed Home Depot’s paperwork. At the end of the job, the customer signed Home Depot forms which he submitted to Home Depot. He was paid regardless of whether the customer paid Home Depot. He did not supply any of his own materials and, in essence, supplied only labour. There is no indication that he advertised anywhere or had other sources of work. He submitted that all of this pointed to the absence of an independent business existence. Ms. Huras, acting for Home Depot, submitted that Mr. Phillips was the owner of an independent firm. She notes that Mr. Phillips described himself as a “subcontractor” rather than an employee at his examination for discovery. He stated that his circumstances were the same at the time of his examination for discovery as they were at the time of the accident. She submits that the Board’s Assessment Department incorrectly classified Mr. Phillips as a worker, based on inaccurate information. He had operated his business as a sole proprietorship under the name of Midland Flooring for the previous ten years. Had he considered himself an employee of Home Depot he would not have filed with Revenue Canada as a sole proprietor. Home Depot required its contractors to have other contracts and there is no evidence that Mr. Phillips ever advised Home Depot that he had been deemed a worker.


23

Turning to the factors described in policy #AP1-1-3, Ms. Huras submitted that Mr. Phillips provided supplies and the materials used and, if applicable, billed for trip charges. Home Depot had no control over the amount of work performed by Mr. Phillips in terms of the number of jobs or hours of work. If Mr. Phillips was unable to perform the work, Home Depot would go to another contractor. Mr. Phillips had complete control over the frequency of installations performed for Home Depot; he could accept or decline work and he was free to perform work for other companies. Mr. Phillips lost work after the accident because he no longer had his van; this was unrelated to Home Depot. The van, which was owned by Mr. Phillips, constituted major equipment that was used for his carpet installation business. In addition to the van, Mr. Phillips provided all the tools required to measure and install carpeting. The terms of the contract between Mr. Phillips and Home Depot were consistent with those found in contracts between independent operators. Mr. Phillips performed work for other individuals and companies and he did hire other persons on a casual basis. She submitted that the evidence on the whole supported a relationship of independence between Mr. Phillips and Home Depot. Mr. Stenerson submitted that Mr. Phillips was a flooring installer; Home Depot provided the flooring and Mr. Phillips did the physical work of installing it. Accordingly, he provided services of labour. He also submitted that the supplementary materials provided by Home Depot indicated that Home Depot provided some training to Mr. Phillips through an orientation handbook and video, set out guidelines as to how Mr. Phillips was to carry out the measuring and estimates; advised its customers that there was a lifetime warranty on installations and defined for its customers what “installation” included. In addition, Home Depot represented Mr. Phillips as an “authorized Home Depot installer.” All of these pointed to an employment relationship. Ms. Khan provided a rebuttal pointing to several details in the material provided by Home Depot which, she submitted, pointed to a relationship of independence. In considering the factors that distinguish an employment relationship from one between independent firms, I consider that Mr. Phillips provided services of labour. His fundamental work for Home Depot, which was at least 90% of his work, consisted of measuring floors and installing carpets for customers of Home Depot. Mr. Phillips could accept or refuse a job but once he had accepted a job, he had very little control over any aspect of the work other than to determine when he could do it. His evidence was that he was expected to lay approximately 75 to 100 yards of carpet per day. According to the material provided by Home Depot he was required to read and view orientation materials prepared by Home Depot. The material provided by Home Depot also includes installation specifications which describe what is included and excluded from a basic installation. These specifications state that Home Depot will not install over an existing carpet or pad and that the installer will not cut doors. The


24

customer pays no Provincial Sales Tax on the merchandise purchased from Home Depot when it is installed by an authorized Home Depot installer. There are numerous other declarations of what services will be or will not be provided by the installer. All of this points to considerable control by Home Depot over Mr. Phillips. There is little evidence that Mr. Phillips could make a profit or loss. The materials were purchased by Home Depot’s customers from Home Depot at a price set by Home Depot. Home Depot would “build the price” of the job based on the measurements that Mr. Phillips provided to Home Depot and his estimate of the labour required to do the installation. Mr. Phillips’ only control over the amount of money he made appears to have depended on how many jobs he decided to take. This is not much different from a casual worker deciding how many shifts he will take. With respect to the provision of major equipment, Mr. Phillips provided the van in which he carried the carpet and installation tools and which he used as transportation to his job. This is a factor pointing to independence; however, I also note that this is not major equipment of the type used to perform the work. It was not revenue producing equipment, such as a backhoe or other equipment that is used in the actual performance of the work that is provided by the contractor. The contract that was provided by Home Depot is on Home Depot letterhead and it is titled “Contract for Outside Measure Service.” It indicates that it is from Home Depot to Andrew Phillips. It states that Home Depot agrees to pay $45.00 for two product categories to be measured and sets out what is “expected” from the contractor. The contractor is required to be “[o]pen/accessible” during the hours that Home Depot is open in order to schedule measuring jobs with customers. Measuring is to be completed “within 24 hours from the time the measure is sold at the store unless otherwise specified by the customer.” Completed paperwork is to be faxed to the store within 24 hours of completion of the measuring. It is expected that the contractor has the ability to measure all flooring product categories correctly. The contractor is expected to pay expenses resulting from an improper measure. It is difficult to see how these terms differ in any significant manner from an employment contract. They establish the amount that Mr. Phillips will be paid and dictate the hours that Mr. Phillips must be available, the time within which he must make a measure, when he must provide the measurement to Home Depot and how this information will be conveyed to Home Depot. They establish job requirements in that Mr. Phillips must be able to correctly measure all types of flooring and they assign responsibility to him for company losses that are due to an error on his part. The terms of this contract are not those which would be expected between independent contractors. They are far more reflective of a relationship in which one party defines its expectations of the other party and imposes obligations and responsibilities on the other party, such as occurs in a contract of employment.


25

As to who is best able to fulfill the prevention and other obligations of an employer under the Act, the evidence does not clearly indicate which party meets that criterion. On the question of whether Mr. Phillips engaged continuously and indefinitely for one person or worked intermittently and for different persons, Mr. Phillips was quite vague in his statements regarding any contracts he may have had, other than with Home Depot, at the time of the accident. He stated that Home Depot was “Pretty well” his main source of work. (Q 36). He also stated that, since starting to contract with Home Depot, he has worked every day, five days a week. (Q 82) The measuring contract with Home Depot indicates that he was providing work to Home Depot as of January 7, 2002, at least. Subsequently, in the affidavit sworn on August 3, 2007, he stated that 90% of his work at the time of the accident was through Home Depot and he did some odd jobs through word of mouth: however, he did not specify any other companies with which he contracted. Ms. Khan’s statements regarding the companies with which Mr. Phillips contracted is not supported by evidence from Mr. Phillips. In addition, he informed the Board in January 2002 and October 2005 that he contracted only with Home Depot. Taking this evidence as a whole, I consider it likely that Mr. Phillips had minimal work outside of that provided to him by Home Depot, at the time of the accident. The last criterion is whether the individual doing the work is able or required to hire other persons. Mr. Phillips’ evidence was that he did require assistance in the form of casual labour, on occasion. None of the materials indicate that Home Depot involved itself in this matter and this points to independence. It also, however, points to the possibility that at those times Mr. Phillips was operating as an unregistered labour contractor. I find that consideration of the factors described in the policy results in a conclusion that Mr. Phillips’ and his business did not exist as a business enterprise independently of Home Depot at the time of the accident. He provided services to customers of Home Depot in keeping with the terms and conditions established by Home Depot. Although he viewed himself as a sole proprietor and subcontractor, objectively, he was not sufficiently independent to be characterized as an independent contractor or firm. I consider that, generally, Mr. Phillips satisfied the definition of a worker under section 1 of the Act and policy item #AP1-1-1 of the Assessment Manual. Therefore, at those times when he was operating alone, I find that his relationship with Home Depot was an employment relationship. However, there were times when he was unable to do the job himself. When he obtained assistance, for remuneration, he was in the position of having a worker and the policy at #AP1-1-5 of the Assessment Manual states that


26

workers are individuals who do not employ other individuals. Accordingly, at those times when he hired a worker to help with installing a carpet, I consider that he was an unregistered labour contractor under policy item #AP1-1-7 of the Assessment Manual. At the time of the accident, he was taking Mr. Groves to the work site to assist him with the carpet installation. Since I have concluded that Mr. Groves was a worker of Mr. Phillips for the purpose of that installation, I find that Mr. Phillips was a labour contractor under policy #AP1-1-7 of the Assessment Manual in that he had a worker and was supplying labour to Home Depot. Since he was not registered with the Board at that time he was a worker of Home Depot. According to the same policy, Mr. Groves was also a worker of Home Depot. Turning to the question of whether the accident arose out of and in the course of Mr. Phillips’ employment, the policy at item #18.40 of the RSCM II states: “Employees whose job involves travelling on a particular occasion or generally are covered while travelling.” Mr. Phillips’ job as a carpet installer required him to travel to another community on the day of the accident. He was also carrying the carpet, that he intended to install, in his van. Evidence was not provided as to whether he picked up the carpet from Home Depot after leaving his home that morning or whether he already had the carpet in the van and left directly from his home. In either case, however, I consider that travelling to Keremeos, with the carpet, was a significant aspect of the service he provided as a carpet installer. Accordingly, he was in the course of his employment at the time of the accident. As a result, any injuries he sustained in the accident arose out of and in the course of his employment and any conduct that caused the alleged breach of duty arose out of and in the course of his employment. Status of Greyhound Canada Transportation Corp. According to a memorandum from the Board’s Assessment Department dated October 19, 2005, Greyhound was registered with the Board at the time of the accident. It is also a matter of general knowledge that Greyhound has employees. Therefore, Greyhound was an employer engaged in an industry within the meaning of Part 1 of the Act and any action or conduct of the employer, or the employer’s servant or agent, which caused the breach of duty arose out of and in the course of employment within the scope of this Part of the Act. Status of Charles Allen Newton There has been no evidence provided or submission made with regard to the status of Mr. Newton. Accordingly, I have made no determination of his status. If the need should arise for a determination of his status, counsel may request a supplemental certificate and provide evidence and submissions in support.


27

Conclusions I find that at the time of the January 22, 2003 accident: 1. Andrew Vaughan Phillips was a worker. Any injuries sustained by Mr. Phillips arose

out of and in the course of his employment. Any action or conduct by Mr. Phillips which allegedly caused a breach of duty arose out of and in the course of his employment;

2. Graham Groves was a worker and any injuries he sustained in the accident arose

out of and in the course of his employment; 3. Greyhound Canada Transportation Corp. was an employer engaged in an industry

within the meaning of Part 1 of the Act and any action or conduct of the employer, or the employer’s servant or agent, which caused the breach of duty arose out of and in the course of employment within the scope of this Part of the Act.

I make no determination regarding the status of Charles Allen Newton. Marguerite Mousseau Vice Chair MM:gw

NO. S 66948 KELOWNA REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF THE WORKERS COMPENSATION ACT REVISED STATUTES OF BRITISH COLUMBIA 1996, CHAPTER 492, AS AMENDED

BETWEEN:

ANDREW VAUGHAN PHILLIPS PLAINTIFF AND:

GREYHOUND CANADA TRANSPORTATION CORP. DEFENDANT

C E R T I F I C A T E

UPON APPLICATION of the plaintiff, ANDREW VAUGHAN PHILLIPS, in this action for a determination pursuant to Section 257 of the Workers Compensation Act; AND UPON NOTICE having been given to the parties to this action and other interested persons of the matters relevant to this action and within the jurisdiction of the Workers’ Compensation Appeal Tribunal; AND AFTER an opportunity having been provided to all parties and other interested persons to submit evidence and argument; AND UPON READING the pleadings in this action, and the submissions and material filed by the parties; AND HAVING CONSIDERED the evidence and submissions;

- 1 -

1

2

THE WORKERS’ COMPENSATION APPEAL TRIBUNAL DETERMINES THAT at the time the cause of the action arose, January 22, 2003: 1. The Plaintiff, ANDREW VAUGHAN PHILLIPS, was a worker within the meaning of

Part 1 of the Workers Compensation Act. 2. The injuries suffered by the Plaintiff, ANDREW VAUGHAN PHILLIPS, arose out of

and in the course of his employment within the scope of Part 1 of the Workers Compensation Act.

3. The Defendant, GREYHOUND CANADA TRANSPORTATION CORP., was an

employer engaged in an industry within the meaning of Part 1 of the Workers Compensation Act.

4. Any action or conduct of the defendant, GREYHOUND CANADA

TRANSPORTATION CORP., or its servant or agent, which allegedly caused a breach of duty, arose out of and in the course of employment within the scope of Part 1 of the Workers Compensation Act.

CERTIFIED this day of May, 2008. _____________________ Marguerite Mousseau VICE CHAIR

- 2 -

1

NO. S 66948 KELOWNA REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF THE WORKERS COMPENSATION ACT REVISED STATUTES OF BRITISH COLUMBIA 1996, CHAPTER 492, AS AMENDED

BETWEEN:

ANDREW VAUGHAN PHILLIPS PLAINTIFF AND:

GREYHOUND CANADA TRANSPORTATION CORP. DEFENDANT

SECTION 257 CERTIFICATE

WORKERS’ COMPENSATION APPEAL TRIBUNAL 150-4600 Jacombs Road Richmond, BC V6V 3B1

FAX (604) 664-7898 TELEPHONE (604) 664-7800

052106-A

NO. C 26009 PENTICTON REGISTRY

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT)

IN THE MATTER OF THE WORKERS COMPENSATION ACT

REVISED STATUTES OF BRITISH COLUMBIA 1996, CHAPTER 492, AS AMENDED

BETWEEN:

GRAHAM GROVES PLAINTIFF AND:

GREYHOUND CANADA TRANSPORTATION CORP., ANDREW VAUGHAN PHILLIPS, and

CHARLES ALLEN NEWTON

DEFENDANTS

C E R T I F I C A T E UPON APPLICATION of the claimant, GRAHAM GROVES, in this action for a determination pursuant to Section 257 of the Workers Compensation Act; AND UPON NOTICE having been given to the parties to this action and other interested persons of the matters relevant to this action and within the jurisdiction of the Workers’ Compensation Appeal Tribunal; AND AFTER an opportunity having been provided to all parties and other interested persons to submit evidence and argument; AND UPON READING the pleadings in this action, and the submissions and material filed by the parties; AND HAVING CONSIDERED the evidence and submissions;

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THE WORKERS’ COMPENSATION APPEAL TRIBUNAL DETERMINES THAT at the time the cause of the action arose, January 22, 2003: 1. The claimant, GRAHAM GROVES, was a worker within the meaning of Part 1 of the

Workers Compensation Act. 2. The injuries suffered by the Claimant, GRAHAM GROVES, arose out of and in the

course of his employment within the scope of Part 1 of the Workers Compensation Act.

3. The Defendant, ANDREW VAUGHAN PHILLIPS, was a worker within the meaning

of Part 1 of the Workers Compensation Act. 4. The action or conduct of the Defendant, ANDREW VAUGHAN PHILLIPS, that

allegedly caused a breach of duty, arose out of and in the course of his employment within the scope of Part 1 of the Workers Compensation Act.

5. The Defendant, GREYHOUND CANADA TRANSPORTATION CORP., was an

employer engaged in an industry within the meaning of Part 1 of the Workers Compensation Act.

6. Any action or conduct of the defendant, GREYHOUND CANADA

TRANSPORTATION CORP., or its servant or agent, which allegedly caused a breach of duty, arose out of and in the course of employment within the scope of Part 1 of the Workers Compensation Act.

CERTIFIED this day of May, 2008. _____________________ Marguerite Mousseau VICE CHAIR

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NO. C 26009 PENTICTON REGISTRY

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT)

IN THE MATTER OF THE WORKERS COMPENSATION ACT

REVISED STATUTES OF BRITISH COLUMBIA 1996, CHAPTER 492, AS AMENDED BETWEEN:

GRAHAM GROVES CLAIMANT AND:

GREYHOUND CANADA TRANSPORTATION CORP., ANDREW VAUGHAN PHILLIPS, and

CHARLES ALLEN NEWTON DEFENDANTS

SECTION 257 CERTIFICATE

WORKERS’ COMPENSATION APPEAL TRIBUNAL 150-4600 Jacombs Road Richmond, BC V6V 3B1

FAX (604) 664-7898 TELEPHONE (604) 664-7800

052574-A

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