workplace safety and insurance appeals tribunal …wsiat.on.ca/decisions/2014/1307 13.pdf ·...

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle

Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2

WORKPLACE SAFETY AND INSURANCE

APPEALS TRIBUNAL

DECISION NO. 1307/13

BEFORE: T. Mitchinson: Vice-Chair

HEARING: July 11, 2013 and February 12, 2014 at Toronto

Oral

Post-hearing activity completed on June 13, 2014

DATE OF DECISION: November 4, 2014

NEUTRAL CITATION: 2014 ONWSIAT 2369

APPLICATION FOR ORDER REMOVING THE RIGHT TO SUE

APPEARANCES:

For the applicant: David Murray, Lawyer

For the co-applicants: Thomasina Dumonceau, Lawyer

Patrick Monaghan and Heather Taylor, Lawyers

For the interested parties: Josh Sugar, Student-at-law, and Stephen Libin, Lawyer

Raymond Wong, Self-represented

For the respondent: Dale Orlando and Alison Burrison, Lawyers

Interpreter: Marta Wolosink, Polish

Decision No. 1307/13

REASONS

(i) Introduction

[1] This is an application under section 31 of the Workplace Safety and Insurance Act by a

number of defendants in an action filed in the Ontario Superior Court of Justice as Court File

No. CV-10-03077-00, for a declaration and order to bar the plaintiffs/respondents from

commencing and maintaining a civil action against the defendants for damages stemming from

an accident that occurred on November 18, 2008.

[2] The application was heard in Toronto on July 11, 2013 and February 12, 2014.

[3] The applicant, Allstate Insurance Company of Canada (Allstate), is represented by

David Murray, a lawyer. Allstate is the statutory accident benefits carrier for any insurance

claim by the respondents stemming from the November 18, 2008 accident.

[4] The co-applicants, Buckley Cartage Limited (Buckley Cartage) and Wells Fargo

Equipment Finance Corporation (Wells Fargo) are represented by Thomasina Dumonceau, a

lawyer. Buckley Cartage is a transport company and owner of the site where the

November 18, 2008 accident occurred, and the employer of one of the respondents. Wells Fargo

is the leasehold owner of the vehicle involved in the accident.

[5] The co-applicant, Fransiszek Rossa (Rossa) is represented by lawyers, Patrick Monahan

and Heather Taylor. He was the driver of the tractor involved in the accident on

November 18, 2008.

[6] The interested parties, Pace International Inc., Interpol Inc., and Trac Lease Inc. (Pace

and Trac) was represented at the July 11, 2013 hearing by Josh Sugar, student-at-law, and by

Stephen Libin, a lawyer, at the February 12, 2014 hearing. They are the owners/lessors of the

trailer involved in the November 18, 2008 accident.

[7] The respondents, Robert Babicki (Babicki) by his litigation guardian, Anetta Babicki, and

Anetta Babicki personally, are represented by lawyers Dale Orlando and Alison Burrison.

Babicki was injured in the November 18, 2008 accident.

[8] Self-represented interested party, Raymond Wong, was an employee of Buckley Cartage

at the time of the accident. He appeared at the July 11, 2013 hearing, but was excused on the

basis that his interests are not affected by the outcome of this application.

[9] Rossa testified at the July 11, 2013 hearing, with the assistance of Polish interpreter,

Marta Wolosink. Joseph Bart Buckley (Buckley) the owner of Buckley Cartage, testified at the

February 12, 2014 hearing.

[10] At the end of the February 12, 2014 hearing, I made the following rulings:

1. Allstate, Buckley Cartage, and Wells Fargo were all Schedule 1 employers in

November 2008 when the accident in question occurred.

2. Babicki was a Schedule 1 worker employed by Buckley Cartage in November 2008

when he was injured during the course of his employment.

3. Pace and Trac were not Schedule 1 employers in November 2008.

Page: 2 Decision No. 1307/13

4. Babicki is barred, pursuant to section 31 of the Act, from maintaining his civil

action against Allstate, Buckley Cartage, and Wells Fargo, for damages stemming

from the November 18, 2008 accident.

[11] Ms. Dumonceau advised that in light of these rulings she would not be making

submissions on behalf of Buckley Cartage and Wells Fargo. Mr. Libin reserved the option to

make submissions, pending receipt and review of submissions from Mr. Murray and/or Mr.

Monaghan/Ms. Taylor.

[12] All parties were in agreement that submissions would be provided in writing.

[13] Mr. Murray and Mr. Monaghan provided submissions on April 4, 2014. Copies were

provided to Mr. Orlando/Ms. Burrison and Mr. Libin. Mr. Libin advised that he would not be

providing submissions, and was seeking an order under section 29(4) of the Act.

Mr. Orlando/Ms. Burrison provided submissions on May 12, 2014, which were then shared with

Mr. Murray and Mr. Monaghan/Ms. Taylor. Mr. Murray submitted final reply submissions on

June 2, 2014, and Mr. Monaghan/Ms. Taylor on June 3, 2014.

(ii) Applicable law

[14] The accident leading to the civil law suit and this section 31 application occurred in 2008.

Therefore, the Workplace Safety and Insurance Act (the Act) applies.

(iii) Preliminary issues

[15] At the start of the July 11, 2013 hearing, the parties agreed to the introduction of three

documents not included in the Case Record. They are co-applicant Rossa’s supplementary

materials dated July 11, 2013, a schematic of the accident site dated August 16, 2012, and a copy

of an incomplete pro forma agreement dated August 16, 2006 used by Buckley Cartage and its

independent contractors. Later in the hearing, two additional records were accepted into

evidence: a May 29, 2012 letter confirming the status of Buckley Cartage as a Schedule 1

employer and identifying that Pace and Trac did not have accounts with the Workplace Safety

and Insurance Board; and a copy of Rossa’s 2008 income tax return. All of these documents

were accepted as exhibits.

[16] At the start of the February 12, 2014 hearing, a copy of the collective agreement between

Buckley and its unionized workers was tabled and accepted as an exhibit, on consent.

(iv) Statutory provisions and Board policy

[17] Sections 28(1) and 31(1) of the Act reads as follows:

28(1) A worker employed by a Schedule 1 employer, the worker’s survivors and a

Schedule 1 employer are not entitled to commence an action against the following

persons in respect of the worker’s injury or disease:

1. Any Schedule 1 employer.

2. A director, executive officer or worker employed by any Schedule 1

employer.

…


31(1) A party to an action or an insurer from whom statutory accident benefits are

claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal

to determine,

(a) whether, because of this Act, the right to commence an action is taken away;

(b) whether the amount that a person may be liable to pay in an action is limited

by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

[18] Board Operational Policy Manual (OPM) Document No. 15-01-05 sets out the policy

and guidelines for determining whether the requirements of section 31(1) of the Act are present:

POLICY

The Act provides no fault loss of earnings benefits for injuries arising out of and in

the course of employment in lieu of all rights of action that a worker or survivor

may have against the worker’s employer. In most cases any right of action is

taken away by the Act. However, there are circumstances where a worker or

survivor may have a right of action against a third party.

GUIDELINES

When all parties involved in the accident were in the course of their employment,

the worker has no right of action against any Schedule 1

- employer

- director

- executive officer, or

- worker

[19] Section 2(1) of the Act defines worker as “a person who has entered into or is employed

under a contract of service …”.

[20] OPM Document No. 12-02-01 provides policy and guidelines on the issue of whether an

individual is a “worker” or an “independent operator”. It states in part:

Policy

The WSIB uses questionnaires (a general questionnaire and six industry-specific

questionnaires), to gather information to help determine if a person is employed under a

"contract of service." The questionnaires reflect the principles of the organizational test

(see below). Persons employed under a contract of service are workers. Independent

operators are not employed under a contract of service.

The WSIB has the authority to determine who is a worker or an independent operator

under the Workplace Safety and Insurance Act.

Guidelines

General

A “contract of service”, or employer-employee relationship, is one where a worker agrees

to work for an employer (payer), on a full- or part-time basis, in return for wages or a

salary. The employer has the right to control what work is performed, where, when, and

how the work is to be performed.

Workers – those who work under contracts of service – are automatically insured and

entitled to benefits if injured at work. In addition, their employers must pay premiums to

the WSIB.


A “contract for service”, or a business relationship, is one where a person agrees to

perform specific work in return for payment. The employer does not necessarily control

the manner in which the work is done, or the times and places the work is performed.

Independent operators – those who work under contracts for service – are not

automatically insured or entitled to benefits unless they voluntarily elect to be considered

"workers" and apply to the WSIB for their own account and optional insurance. (See 12-

03-02, Optional Insurance.) Independent operators may not be insured through the hiring

company's (payer's) WSIB account.

Organizational test

The organizational test recognizes features of control, ownership of tools/equipment,

chance of profit/risk of loss, and whether the person is part of the employer's

organization, or operating their own separate business.

…

Characteristics of workers and independent operators

The following list compares worker/independent operator characteristics. The statements

on the left are more characteristic of the behaviour or situations of workers, while those

on the right characterize the behaviour of independent operators. No one statement

determines a person's status. The seven questionnaires do not necessarily include all the

characteristics listed since they are designed to capture key elements of business

relationships in specific industries.

Decision-makers consider the statements on the questionnaires, and any other

information relevant to the terms and conditions of employment.

Workers Independent Operators

Instructions Comply with instructions on what, when, where,

and how work is to be done.

Work on their own schedule.

Does the job their own way.

Training/

supervision Trained and supervised by an experienced

employee of the payer.

Required to take correspondence or other courses.

Required to attend meetings and follow specific

instructions which indicate how the payer wants

the services performed.

Use their own methods and are

not required to follow

instructions from the payer.

Personal service Must render services personally.

Must obtain payer's consent to hire others to do the

work.

Often hires others to do the

work without the payer's

consent.

Hours of work The hours and days of work are set by the payer. Work whatever hours they

choose.

Full-time work Must devote full-time to the business of the payer.

Restricted from doing work for other payers.

Free to work when and for

whom they choose.



Order or

sequence of work Performs services in the order or sequence set by

the payer.

Performs work that is part of a highly coordinated

series of tasks where the tasks must be performed

in a well-ordered sequence.

Performs services at their own

pace.

Work on own schedule.

Method of

payment Paid by the payer in regular amounts at stated

intervals.

Payer alone decides the amount and manner of

payment.

Paid by the job on a straight

commission.

Negotiates amount and method

of payment with the payer.

Licenses Payer holds licenses required to do the work. Person holds licenses required

to do the work.

Serving the public Does not make services available except on behalf,

or as a representative, of the payer.

Invoices customers on employer's behalf.

Has own office.

Listed in business directories

and maintains business

telephone.

Advertises in newspapers, etc.

Invoices customers on own

behalf.

Status with other

government

agencies

(e) Terms of the relationship are governed by a

collective agreement.

(f) Canada Revenue Agency either makes no ruling

on the person's status, or rules that the person is a

worker under the Canada Pension Plan (CPP) and

the Employment Insurance Act (EIA). (A ruling is

made after the relevant parties complete the form

"Request for a ruling as to the status of a worker

under the CPP or EIA".)

(g) Collects and pays GST and other applicable taxes

on payer's behalf.

(h) Payer deducts EI, CPP, insurance, income tax, etc.

from pay.

Terms of the relationship not

governed by a collective

agreement.

Canada Revenue Agency has

made an official ruling that the

person is not a worker under

the CPP and the EIA.

Collects and pays GST and

other applicable taxes on own

behalf.

Takes no deductions from pay

for EI, CPP, insurance, income

tax, etc.

Profit or Loss

To determine what the opportunities are for the person to earn a profit or suffer a loss in

doing the work, the decision-maker must consider

what assets (labour, materials, tools, and equipment) are used, operated, or put into

action when doing the work, e.g., a lathe. These are to be distinguished from assets


that are the subject of the work, or that are acted upon in doing the work, e.g., the

table leg that is "turned" on the lathe.

what costs are incurred in doing the work, including

-costs of the acquisition, maintenance, operation and repair of assets;

-financing and loan arrangements with respect to the work, and

-licensing and insurance fees

who pays these costs - the employer or the person

if the person pays the costs, does the person purchase items directly or indirectly

from the employer or through an arrangement with the employer

what decisions influence the costs and to what extent

who makes and has the right (legal or otherwise) to make these decisions - the person

or the employer

the market mobility of the person or the demand that exists for these services.

Workers have the right to make decisions that, in comparison to those that the employer

makes (or has the right to make), have an insignificant or lesser influence on the workers'

opportunity to make a profit or suffer a loss in doing the work.

Independent operators have the right to make decisions that, in comparison to those that

the hiring company makes (or has the right to make), have a significant influence on their

opportunity to make a profit or suffer a loss in doing the work.

Other applicable criteria

To determine what other applicable criteria suggest about the status of the person,

decision-makers consider the paired statements that follow. None of these statements, on

its own, leads to the determination of status. Before making a determination, decision-

makers must consider each statement in reference to all other features of the work

relationship.


Continuing need

for type of service

Payer has a continuing need for the type of service that

the person provides. A payer has a continuing need for

service if all persons who perform such services,

collectively, spend more than 40 hours a month on

average doing the work, or if the work continues full-

time for more than 4 months.

Payer does not have a continuing need for

the type of service that the person

provides.

Hiring /

supervising /

paying assistants

Hires, supervises, and pays workers, on direction of the

payer (acts as a supervisor or representative of the

payer).

Hires, supervises and pays workers, on

own accord and as the result of a contract

under which the person agrees to provide

materials and labour and is responsible for

the results.

Doing work on

purchaser's

premises

Payer owns or controls the worksite. Works away from payer's premises using

own office space, desk, and telephone.

Oral and written

reports

Required to submit regular oral or written reports to

payer.

Submits no reports.

Right to sever Either the person or the payer can end the work Agrees to complete a specific job and is



relationship relationship at any time without legal penalty for

breach of contract.

responsible for its satisfactory completion

or is legally obligated to pay for damages

or loss of income that the payer sustains

because of the failure to satisfactorily

complete the work.

Working for more

than one firm at a

time

Usually works for one payer. Works for more than one payer at the same

time.

Determining Status

The decision-maker reaches a decision about the status of the person. When the criteria

indicate the person has a separate business that is not integrated into the employer's

business, then the person is an independent operator. If the decision-maker finds

that the person is subject to a high degree of control in doing the work, and

that the decisions the person makes have an insignificant effect on the person's own

opportunity to earn a profit or suffer a loss

the person is a worker and does not have a separate business, even if a review of “Other

applicable criteria” suggests that some independence is afforded the person in the

relationship with the employer.

[21] OPM Document No. 15-02-02 outlines the policy and guidelines for determining whether

an accident occurred in the course of employment:

POLICY

A personal injury by accident occurs in the course of employment if the

surrounding circumstances relating to place, time and activity indicate that the

accident was work-related.

GUIDELINES

In determining whether a personal injury by accident occurred in the course of

employment, the decision-maker applies the criteria of place, time and activity in

the following way:

Place

If a worker has a fixed workplace, a personal injury by accident occurring on the

premises of the workplace generally will have occurred in the course of

employment. A personal injury by accident occurring off those premises generally

will not have occurred in the course of employment.

If a worker with a fixed workplace was injured while absent from the workplace

on behalf of the employer or if a worker is normally expected to work away from a

fixed workplace, a personal injury by accident generally will have occurred in the

course of employment if it occurred in a place where the worker might reasonably

have been expected to be while engaged in work-related activities.

Time

If a worker has fixed working hours, a personal injury by accident generally will

have occurred in the course of employment if it occurred during those hours or

during a reasonable period before starting or after finishing work.

If a worker does not have fixed working hours or if the accident occurred outside

the worker’s fixed working hours, the criteria of place and activity are applied to


determine whether the personal injury by accident occurred in the course of

employment.

Activity

If a personal injury by accident occurred while the worker was engaged in the

performance of a work-related duty or in an activity reasonably incidental to

(related to) the employment, the personal injury by accident generally will have

occurred in the course of employment.

If a worker was engaged in an activity to satisfy a personal need, the worker may

have been engaged in an activity that was incidental to the employment. Similarly,

engaging in a brief interlude of personal activity does not always mean that the

worker was not in the course of employment. In determining whether a personal

activity occurred in the course of employment, the decision-maker should consider

factors such as

- the duration of the activity

- the nature of the activity, and

- the extent to which it deviated from the worker’s regular employment

activities.

In determining whether an activity was incidental to the employment, the decision-

maker should take into consideration

- the nature of the work

- the nature of the work environment, and

- the customs and practices of the particular workplace.

Application of criteria

The importance of the three criteria varies depending on the circumstances of each

case. In most cases, the decision-maker focuses primarily on the activity of the

worker at the time the personal injury by accident occurred to determine whether it

occurred in the course of employment.

If a worker with fixed working hours and a fixed workplace suffered a personal

injury by accident at the workplace during working hours, the personal injury by

accident generally will have occurred in the course of employment unless, at the

time of the accident, the worker was engaged in a personal activity that was not

incidental to the worker’s employment.

The decision-maker examines the activity of the worker at the time of the accident

to determine whether the worker’s activity was of such a personal nature that it

should not be considered work-related.

In all other circumstances, the time and place of the accident are less important. In

these cases, the decision-maker focuses on the activity of the worker and examines

all the surrounding circumstances to decide if the worker was in the course of

employment at the time that the personal injury by accident occurred.

(v) Background

[22] On the morning of November 18, 2008, Rossa was sitting in the driver’s seat of a tractor-

trailer vehicle on premises owned and operated by Buckley Cartage. Babicki, who was a vehicle

mechanic employed by Buckley Cartage, was lying on the ground under the tractor-trailer

making mechanical adjustments to the brakes of the vehicle. The vehicle moved, causing serious

personal injuries to Babicki.


[23] On November 21, 2008, Buckley Cartage filed a Form 7 Employer’s Report of Injury

with the Board, attaching a November 18, 2008 Motor Vehicle Accident Report.

[24] On December 12, 2008, Mr. Orlando filed an Assignment of Workplace Safety and

Insurance Benefits form with the Board on behalf of Babicki. It was signed by Babicki’s Power

of Attorney and by a representative of Allstate, the accident benefits insurer. The Board

responded on December 15, 2008, acknowledging receipt of the form and confirming that if

benefits become payable to Babicki under the Act, the assignment would be honoured.

[25] On January 9, 2009, Mr. Orlando wrote to Buckley Cartage, confirming that Babicki had

elected to opt out of coverage under the Act and to pursue a claim against Allstate for accident

benefits, and to pursue a tort claim against Rossa and Buckley Cartage.

[26] On August 19, 2010, Babicki commenced a civil action in negligence against Rossa,

Buckley Cartage, Pace and Trac. Anetta Babicki, Babicki’s wife, is also a plaintiff in this action.

The plaintiffs amended their Statement of Claim on November 10, 2010.

[27] On February 28, 2011, Pace and Trac filed a Statement of Defense, and Crossclaim

against co-defendants, Rossa, Buckley Cartage and Wells Fargo.

[28] On April 7, 2011, the plaintiffs filed a Third Party Claim against Raymond Wong.

[29] Mr. Murray then brought a section 31 application at the Tribunal, on behalf of Allstate.

Ms. Dumonceau on behalf of Buckley Cartage and Wells Fargo, and Mr. Monaghan on behalf of

Rossa, joined as co-applicants.

[30] Section 31 Statements were received from the applicant and co-applicants, and

Mr. Orlando filed a Statement of Respondents on behalf of Babicki and his wife.

[31] Trac and Pace did not join the matter as co-applicants but participated as interested

parties. Raymond Wong also attended as an interested party but, as previously indicated, he was

excused at the start of the July 11, 2013 hearing.

(vi) The issue

[32] The only remaining issue is whether Rossa was a worker or an independent operator at

the time of the November 18, 2008 accident. If Rossa was a worker in the course of

employment, then the section 31 application would succeed and the respondents would be barred

from proceeding with their civil action against him. If Rossa was an independent operator, then

the section 31 application would fail against Rossa, and the respondents would not be barred

from proceeding with their civil action against him.

(vii) Rossa’s testimony

[33] Rossa provided testimony at the July 11, 2013 hearing, with the assistance of Polish

interpreter, Marta Wolosink.

[34] He first responded to a number of questions from Mr. Monaghan and Mr. Murray.

[35] Rossa testified that he emigrated to Canada from Poland in 1986, and continues to have

limited English-language capability. He estimates approximately 60-65% oral communication

ability, but only 30% written English skills.


[36] Rossa explained that he began work with Buckley Cartage as a driver in approximately

1996. Between that point and 2008, he left Buckley Cartage on more than one occasion to work

for other transport companies, but worked continuously for Buckley Cartage from August 2006

until the time of the November 18, 2008 accident.

[37] Rossa testified that he purchased the tractor used by him in 2008 from Sheehan Truck

Centre in 2004, and financed it through a lease agreement with Wells Fargo. He used this tractor

while worker for Buckley Cartage, and also for other transport companies before returning to

Buckley Cartage in 2006. According to Rossa, Buckley Cartage installed stickers on his tractor

with the name and address of the transport company, and that the tractor could only be used to

transport Buckley Cartage’s trailers.

[38] Rossa confirmed that he entered into an Independent Contractor agreement with Buckley

Cartage when he returned to work for them in August 2006. He confirmed his signature on the

copy of the agreement filed as an exhibit, but maintains that he did not read it before signing.

Rossa explained that he didn’t have sufficient English-language capacity to understand the terms

of the contract, but that his sons went over the details with him after signing to help him

understand the content. Rossa also recalled having undergone a police clearance check in this

context.

[39] According to Rossa, there were no negotiations with Buckley Cartage regarding the per-

mile rate of pay, or any other terms of the agreement. He was simply presented with the

document for signature.

[40] Rossa also confirmed his August 2006 signature on a WISB “Independent Operator

Without Coverage” form, but again explained that he only understood its content when explained

to him by his sons after signing.

[41] As well, Rossa confirmed his signature on a series of “Corrective Notices” on Buckley

Cartage letterhead, identifying driving infractions during the course of his work with Buckley

Cartage.

[42] Rossa testified that he worked exclusively for Buckley Cartage at the time of the

November 2008 accident. He kept his tractor in Buckley Cartage’s yard, and would pick it up

from there after dropping off his car in a parking lot provided by Buckley Cartage to all drivers.

He explained that he would call a Buckley Cartage dispatcher each morning, who would identify

which trailer he should hook up to for an individual delivery. The dispatcher would provide a

bill of lading and the delivery location, as well as any required customs documentation if the

customer was in the United States. Rossa explained that his regular delivery routes were to

either Ohio or Quebec. Rossa testified that there were only a few times per year that work was

not available for him, and that he never declined a job. While en route, he would be in contact

with Buckley Cartage approximately 1-2 times per day by phone. According to Rossa, he rarely

took any time off work, other than for vacations to Poland, and never had any problems with

Buckley Cartage regarding these vacation arrangements.

[43] According to Rossa, Buckley Cartage provided jackets and caps with the company logo,

which he wore, but he explained that while this was a mandatory requirement for employee

drivers, it was optional for independent operators.

[44] Rossa confirmed that he had been provided with a copy of Buckley Cartage’s Policies

and Procedures, and that the company’s Driver Handbook Safety Guidelines were kept in his


tractor at all times. Rossa was not aware whether these documents were also provided to

employee drivers, but assumed that they were, since all drivers, whether employees or

independent operators, followed the same rules. Rossa also testified that all employee and

independent operator drivers were trained as a group by Buckley Cartage on various operational

and safety issues, including transportation of hazardous goods and procedures for completing log

books.

[45] Rossa also testified that all delivery documentation had Buckley Cartage’s letterhead, and

that customers paid Buckley Cartage directly, with no involvement on his part. He also

confirmed that he was paid for his work irrespective of any issues or dispute between Buckley

Cartage and the customer over payments for the delivery.

[46] Rossa testified that his pay was calculated on a per-mile basis, and that fuel costs were

subsidized by Buckley Cartage. He was personally responsible for maintaining the tractor and

ensuring that it was operating properly. He was also responsible for insurance costs, under

Buckley Cartage’s blanket policy.

[47] As far as the circumstances surrounding the November 18, 2008 accident are concerned,

Rossa testified that this was his first day back at work after being in Poland at his father’s

funeral. He received the trailer assignment from the Buckley Cartage dispatcher, hooked it up to

his tractor and did his routine pre-delivery inspection. He drove to the fuel station and noticed a

problem with the wheels, at which point he returned to the yard and advised Buckley Cartage.

The accident occurred shortly thereafter.

[48] Following the accident, Rossa recalled that his contract was terminated. His insurance

and registration arrangements with Buckley Cartage ended, and the license plates and Buckley

Cartage identification markers were removed from the tractor. He made arrangements for a

towing company to remove the tractor from Buckley Cartage’s premises, and returned a number

of items belonging to Buckley Cartage, such as keys, bridge passes and gas cards.

[49] Rossa testified that he was out of work for a period of time, but currently works for a

different transport company as a driver.

[50] Rossa also responded to a number of questions from Mr. Orlando.

[51] Rossa testified that when he signed the agreement with Buckley Cartage in August 2006

it was his intention to be an independent operator and not a company driver. Even though he

didn’t understand all details of the contract and the WSIB documentation when he signed them,

once the content was explained by his sons he understood that the documentation was consistent

with his expectations.

[52] Rossa explained that Buckley Cartage was not involved in the purchase and lease

negotiations for his tractor. He handled these negotiations himself, and the lease was not tied to

his working for Buckley Cartage. Rossa confirmed that his lease payment obligations continued

after he was terminated by Buckley Cartage, and in fact he was forced to give back the tractor

when he couldn’t find alternative work and defaulted on the lease payments.

[53] Rossa confirmed his understanding that his agreement could be terminated, either by

Buckley Cartage on 3 days notice, and by him with 2-week’s notice, and that Buckley Cartage

did not commit to providing work every day or guaranty any specific number of delivery miles

per month. He also testified that, in contrast to employee drivers, he did not receive any vacation


pay, sick leave or health care benefits, and he was personally responsible for absorbing any

overnight costs incurred as part of a delivery.

[54] Rossa also testified that his income from driving was not set in advance, and varied from

month to month based on the amount of work offered by Buckley Cartage and undertaken by

him. Buckley did not make any deductions from his pay for Canada Pension Plan, income tax,

or Employment Insurance premiums, and it was his responsibility to collect and submit

GST/HST payments.

[55] Rossa explained that Buckley Cartage mechanics did not do any repair or maintenance

work on his tractor, and he was personally responsible for any fines received during the course of

deliveries. He was sometimes given a choice of delivery options by the Buckley Cartage

dispatcher, could choose his driving routes, and was only required to check in with Buckley

Cartage during the day if he was having a problem.

[56] Although his contract with Buckley Cartage prevented him from using this tractor for

work with any other transport company, Rossa explained that this did not prevent him from using

a different tractor with another company, and he was able to hire another driver to drive the

Buckley Cartage tractor as long as Buckley Cartage approved.

[57] Rossa also testified that he was aware of some different arrangements between employee

drivers and independent operators working for Buckley Cartage. He understood that employee

drivers were given regular days off, were required to wear company uniforms and did not have to

pay for fuel charges. He also assumed that they worked on set schedules, were entitled to paid

vacations, and received various employee benefits.

(viii) Buckley’s testimony

[58] Buckley provided testimony at the May 20, 2014 hearing.

[59] Ms. Dumonceau led off the questioning.

[60] Buckley testified that he has worked for Buckley Cartage since he was a teenager and

was the owner of the company at the time of the November 2008 accident. He also confirmed

that Babicki was an employee and a member of the union representing employees in the

workplace under the terms of the collective agreement filed as an exhibit at the start of this

hearing.

[61] Mr. Orlando then took over questioning.

[62] All answers and other testimony provided by Buckley related to the circumstances in

place at Buckley Cartage in November 2008.

[63] Buckley testified that there were two categories of drivers working for Buckley Cartage

in 2008, divided approximately evenly between 75 employee drivers and 75 independent

operators. Rossa was in the second category. He explained that the industry has since

undergone a shift towards use of independent operators.

[64] Buckley explained that Rossa initially worked as a sub-contractor for a different

independent operator, until he purchased his own tractor and joined the company as an

independent operator. Buckley estimated that this change in status occurred in approximately

2005. Buckley also recalled that Rossa left Buckley Cartage to work for a different transport


company, but returned to Buckley Cartage about a year later and was re-hired as an independent

operator. According to Buckley, at no point did Rossa ask to be hired as an employee driver.

[65] Buckley testified that the agreement entered into with Rossa when he re-joined Buckley

Cartage in 2006 was used for all independent operators working for the company at that time.

He also explained that all independent operators were required to complete applications to the

WSIB for independent operator status, and that this was done by Rossa as a condition of working

for Buckley Cartage.

[66] According to Buckley, individual independent operators had some capacity to negotiate

the terms of their agreement with Buckley Cartage, and per-mile rates varied to some extent at

times, depending on the degree of competition in the market. Pay for employee drivers, on the

other hand, was determined on the basis of the collective agreement with the union.

[67] As far as Rossa’s tractor is concerned, Buckley testified that Buckley Cartage was not

involved in any aspect of the purchase or lease arrangements. On the other hand, tractors used

by employee drivers were purchased and financed by Buckley Cartage.

[68] Buckley also testified that Buckley Cartage’s agreement with Rossa allowed for

termination with appropriate notice. According to Buckley, although independent operators

were also bound by the agreement to provide notice of termination, they did not always do so.

Buckley testified that the company in fact terminated Rossa in January 2009, with no obligation

to provide severance or any other financial compensation. In contrast to employee drivers, who

had the benefit of provisions in the collective agreement regarding seniority rights and grievance

procedures, Buckley Cartage could “pick and choose” which independent operators would be

laid off or terminated.

[69] As far as Rossa’s work patterns were concerned, Buckley testified that the agreement did

not guarantee any specific work volumes, and they varied from month to month. However, he

confirmed that work was available pretty much every day.

[70] Buckley also confirmed that Rossa did not receive any vacation pay or other

employment-related benefits. Employee drivers, on the other hand, were entitled to vacation,

statutory holiday pay, overtime, leave, medical benefits and RRSP contributions, according to

the terms of the collective agreement.

[71] Buckley also confirmed a number of responsibilities assumed by independent operators

that did not apply to employee drivers: leases payments for the tractor; maintenance costs;

tractor replacement costs; damage repair costs; annual tractor inspection and emissions

certification; and vehicle licensing and insurance charges.

[72] As far as payments were concerned, Buckley testified that mileage distances for all

drivers were set by computer software, and independent operators were paid on the basis of the

number of routes driven during the month, as determined by the operator. Buckley believed that

the rate for employee drivers at the time was $0.34 per mile, and independent operators were

paid $1.34 per mile. Buckley Cartage had no role in determining the route or time taken by the

independent operator, and did not absorb any overnight costs.

[73] Buckley testified that Buckley Cartage did not deduct any government-related payments

from independent operators’ pay, leaving that responsibility with the individual operator. He

also confirmed that the uniforms worn by employee drivers were available to independent


operators, but not required, nor did Buckley Cartage impose any colour requirements on

independent operator tractors.

[74] Buckley confirmed that the agreement between Rossa and Buckley Cartage prevented

him from using his tractor for work with other transport companies, although he was not

prevented from using a different tractor to drive for a competitor.

[75] Buckley also confirmed that employee drivers and independent operators were all

required to comply with the same set of rules and policies. He explained that this was primarily

due to the fact that the government was involved in a number of oversight functions, and the

company was subject to audit and reporting obligations that required consistency.

[76] Mr. Monaghan also had a number of questions.

[77] Mr. Monaghan pointed out that documentation in the Case Record indicates that the

employee driver/independent operator ratio in 2008 was 51/31 rather than the 75/75 division

stated by Buckley, and that the corresponding numbers in 2013 were 17 and 3. Buckley

explained that his business underwent a restructuring as a result of the 2008 recession, and his

new business operates exclusively with independent operator drivers.

[78] Buckley confirmed that independent operators were not directly involved with customers

regarding delivery charges. He also confirmed that Buckley Cartage would determine specific

delivery requirements, and that there were no negotiations with drivers on the financial terms of

an individual delivery. Buckley also agreed with Mr. Monaghan’s suggestion that Buckley

Cartage had fixed delivery costs regardless of whether an individual delivery was made by an

employee driver or an independent operator.

[79] Buckley went on to explain that all tractors were covered by a blanket insurance policy

held by Buckley Cartage, and that Commercial Vehicle Operator Registration (CVOR)

Certificates were obtained by Buckley Cartage for all vehicles, whether owned by the company

or by independent operators.. Buckley confirmed that Buckley Cartage was responsible for

ensuring compliance with COVR requirements on all vehicles, including safety and licensing,

and that any CVOR-related infractions were registered against Buckley Cartage, regardless of

the status of the driver.

[80] Buckley also explained that independent operators were issued Buckley Cartage gas

cards, and that gas and insurance costs were charged back to independent operators on a monthly

basis.

[81] Buckley testified that he has no specific recollection of the rules and regulations imposed

on drivers, as this responsibility was handled by other company officials. However, he

confirmed that all drivers, regardless of status, were subject to the same Driver Handbook Safety

Guidelines issued by Buckley Cartage.

[82] Finally, Buckley confirmed his understanding that the terms of the WSIB Independent

Operator Coverage document allowed the independent operator market mobility through

discretion to enter into agreements for the transport of goods, but that Rossa chose to drive only

for Buckley Cartage, and his agreement with this company prevented him from using the tractor

for work with any other transport company. Buckley clarified that Rossa could hire someone

else to drive the tractor, with Buckley Cartage’s approval, but that payments for any such work

would be made to the independent operator and not to the substitute driver.


[83] In response to questioning by Mr. Murray, Buckley testified that Buckley Cartage never

offered Rossa a job as an employee driver. He also confirmed that if an independent operator

declined to participate in WSIB coverage, Buckley Cartage required evidence of alternative

insurance coverage arrangements as a condition of work as a driver with the company.

[84] Buckley also testified that Buckley Cartage budgeted approximately 25% of salary as

additional employment costs associated with employee drivers, and confirmed that the transport

industry is shifting from a mix of employee drivers and independent operators to primarily

independent operator drivers.

[85] Mr. Orlando had some further questions in reply.

[86] Buckley agreed with Mr. Orlando’s suggestion that it was easier to downsize operations

when dealing with independent operator drivers as opposed to employee drivers.

[87] Buckley also agreed that the instructions provided by Buckley Cartage to Rossa and other

independent operators was limited, consisting primarily of identifying which trailer to pick up

and where to deliver the goods. He also testified that independent operators were not required to

use the gas cards issued by Buckley Cartage.

[88] Buckley also confirmed that other independent operator drivers working for Buckley

Cartage used substitute drivers, and that Buckley Cartage had no knowledge of the payment

arrangements between these individuals and the independent operators.

(ix) Monaghan/Taylor submissions

[89] Mr. Monaghan/Ms. Taylor submit that Rossa should be considered to be a worker for the

purposes of the Act, for the following reasons:

1. the large measure of control and direction over his work exercised by Buckley

Cartage;

2. the concomitant lack of independence or lack of room for entrepreneurial

initiative on the part of Rossa; and

3. the degree of integration of Rossa into the operations of Buckley Cartage.

[90] In their view, the fact that Rossa owned the tractor he was driving at the time of the

accident should not be considered a marker of some “larger entrepreneurial activity, and was

neutralized by the higher mileage rate and fuel subsidy provided by Buckley Cartage”.

[91] Mr. Monaghan/Ms. Taylor submit that it was Rossa’s intention to drive for Buckley

Cartage on a full-time basis, and that he entered into an agreement with the company that

prevented him from using his tractor for any other purpose.

[92] Mr. Monaghan/Ms. Taylor point out that Rossa’s tractor bore Buckley Cartage logos, and

that he chose to wear uniforms provided by the company. They also point to Rossa’s testimony

at the hearing where he described the two categories of drivers as essentially the same, with no

real differences in the job they were performing.

[93] In their view, although Buckley Cartage had all of the normal indicia of a business

operation, Rossa did not. He never hired other drivers or owned and operated more than one

tractor at a time; he did not keep an office; was not incorporated; did not market his services;

and had no customers. He also had no dealings with Buckley Cartage’s customers, and was


reliant on the company to ensure compliance with all regulatory requirements in the transport

industry.

[94] Although Rossa’s agreement with Buckley Cartage describes him as an independent

operator, Mr. Monaghan/Ms. Taylor ask me to give little or no weight to this characterization. In

their view, the agreement was heavily slanted in favour of Buckley Cartage, and

incomprehensible to Rossa due to recognized language barriers. They also submit that the

agreement itself gave Buckley Cartage full control of Rossa’s tractor, with exclusive rights to use

it for their purposes, evidencing what they describe as an “overwhelming amount of control” in

the relationship. In Mr. Monaghan/Ms. Taylor’s view, the fact that Rossa’s tractor was insured

under Buckley Cartage’s bulk insurance policy, and that the company held the CVOR and owned

the license plates for the vehicle are also evidence of a high degree of control.

[95] They describe the agreement as a “take it or leave it” contract, with no discussion or

negotiations about rates of pay. Similarly, Mr. Monaghan/Ms. Taylor submit that Rossa was

required by Buckley Cartage to apply for independent operator status with WSIB or obtain his

own sickness and accident insurance. As an example of the one-sided nature of the agreement,

they point to the circumstances of Rossa’s termination in 2009, when Buckley Cartage removed

his tractor from its CVOR coverage, cancelled the insurance, and removed its license plates from

the vehicle.

[96] Mr. Monaghan/Ms. Taylor also point to a number of circumstances where Buckley

Cartage’s employee drivers and independent operators were treated in the same manner, as

evidence of a lack of independence on Rossa’s part. These include the common set of rules and

procedures, disciplinary actions that could lead to dismissal, as well training programs and log

book entry requirements.

[97] Mr. Monaghan/Ms. Taylor also downplay the significance of ownership of the tractor:

In the circumstances of this case, the ownership by Rossa of his tractor is not a sufficient

indication of an entrepreneurial endeavor to constitute him an independent contractor. As

discussed previously Rossa and his truck were engaged full-time in driving for Buckley.

There was no possibility of enhancing profit by driving the shortest route as the PC

Miller software was already calculating the shortest route. Fuel costs were subsidized by

Buckley Cartage. The frequency and type of maintenance required on the tractor was

controlled by Buckley Cartage and by provincial regulation.

Buckley Cartage had arranged circumstances so that the equipment cost borne by

independent operators was balanced by the higher mileage rate paid to them compared to

company drivers. The ultimate compensation available for company drivers and owner

operators was essentially the same.

[98] In Mr. Monaghan/Ms. Taylor’s view, Buckley Cartage hired two categories of drivers in

order to provide flexibility, but it is only when a driver owns his own CVOR and makes his own

arrangements with customers that he should be accorded independent operator status.

[99] Mr. Monaghan/Ms. Taylor accept that the entire relationship between the parties must be

considered in determining whether a driver is an worker or an independent operator, applying the

characteristics set out in Board Operational Policy Manual (OPM) No. 12-02-01, and the co-

called “business reality test” established through Tribunal jurisprudence. In so doing, and for

reasons set out in detail in their submissions, they argue that the prevailing character of the

relationship in this case is that of a worker/employer and not an independent operator.


[100] They also submit that the framework for undertaking a profit and loss analysis set out in

OPM Document No. 12-02-01 favours a finding that Rossa was a worker:

Opportunity to profit and exposure to the risk of loss are related to the exercise of

entrepreneurial judgment. “A true independent operator generally has the prospect of a

variable profit or potential variable loss, depending upon the economic performance of

the enterprise.” [Decision No. 921/89] Here, all Rossa could do was to arrive with his

tractor ready to drive the maximum allowable hours in Canada and the U.S. according to

the instructions of Buckley Cartage. His ability to earn a profit or generate a loss was out

of his hands.

The Tribunal’s task is to distinguish the cases where ownership of a tractor is a sign of

something bigger - an entrepreneurial exposure to profit and loss, that entails more than

simply driving for one company, full-time, over an extended period.

[101] Mr. Monaghan/Ms. Taylor also submit that not all of the required features of an owner-

operator relationship set out in the Board’s trucking industry-specific questionnaire are present,

specifically requirements (b) and (c), which read:

The owner-operator has the right to exercise a choice in selecting and operating the

vehicle and has market mobility in that he/she has discretion to enter into contracts of any

duration to transport goods and maximize profits.

The principal does not have the right to exercise control over the owner-operator’s

operations except to the extent that loads are offered, and destinations and delivery

schedules are established by the principal’s contract with the shipper and except for the

joint responsibilities set out in federal and provincial licensing and related statutes.

[102] They argue that Ross did not have market mobility, since his agreement gave Buckley

Cartage exclusive use of his tractor, thereby removing his “right to exercise a choice in operating

the vehicle, or entering into other contracts to transport goods”. And also that Buckley Cartage

had a high degree of “control” over Rossa’s operations, telling him where and when to attend

work, the power to discipline him, and the imposition of extensive rules and regulations he was

required to comply with.

[103] In summary, Mr. Monaghan/Ms. Taylor rely on what they characterize as the following

“crucial concepts” in support of a finding that he is a worker for the purposes of the Act:

- Buckley Cartage exercised complete control over the relationship - the terms of

the contract, the customer relationships, the fees available to be earned by Mr.

Rossa, the place of work and manner in which his work was preformed;

- Buckley Cartage directed Mr. Rossa in the performance of his work. Mr. Rossa

was subject to an extensive Rule book, a progressive disciplinary process, and

compulsory training;

- Mr. Rossa was fully integrated into Buckley operations in the same way as any

company driver. He was another driver unit available for dispatch to utilize in

furtherance of the Buckley Cartage business;

- Mr. Rossa had no room for independence. His day to day work was confined by

Buckley dispatch and rules on the one hand, and government regulations

concerning hours of operation, speed limits and the like on the other;

- Mr. Rossa’s intention was to drive full-time for Buckley Cartage. A grander

intension cannot be determined in this case from the terms of a standard Buckley

agreement Mr. Rossa did not negotiate, and could not read or comprehend;


- Mr. Rossa’s ownership of the tractor does not constitute him an independent

contractor on the facts of his case. There are no other markers of a large

entrepreneurial undertaking. He was not operating his own separate business. His

compensation is equivalent to a company driver, when all is said and done.

(x) Murray submissions

[104] Mr. Murray adopts the submissions made by Mr. Monaghan/Ms. Taylor.

[105] He agrees that the totality of the relationship between the parties must be considered in

determining whether a person is a worker or an independent operator, and that indicators

favouring both findings are commonly present. He continues:

No one factor in the assessment is determinative. It is the substance of the relationship

between the parties rather than the form of the relationship which determines whether a

person is a worker or an independent contractor. The question to be asked is “what is the

true nature of the service relationship between the parties, having regard to all relevant

factors impacting on that relationship?” [Mr. Murray’s emphasis]

[106] In Mr. Murray’s view, the substance of Rossa’s relationship with Buckley Cartage was

indistinguishable from that of a worker, the only difference being the form of the agreement and

method of payment.

However, in substance even the quantum of payment is indistinguishable as Buckley

accounted for the increased cost of independent contractor status in the corresponding

remuneration and ensured that after costs an independent contractor and [employee

driver] received the same remuneration.

[107] Mr. Murray also submits that the move away from employee drivers in the transport

industry, as described by Buckley in his testimony, is being done in order to avoid WSIB

premiums which, in his view “results in an artificial form of independent contractor status which

in reality and substance is an employer-worker relationship”.

[108] In summary, Mr. Murray submits:

If Rossa’s situation is considered in light of the criteria outlined in Operational Policy

Manual Document No. 12-02-01 it is clear that with the exception of the “form of the

relationship” and the fact that he owned/leased the tractor in question, that in all other

respects his situation corresponds to that of a worker. His activity was strictly controlled

and constrained by Buckley. They provided instruction on how, when and where his

actions were done, provided training and disciplined him, required him to either perform

the work himself or provide someone that was acceptable to them, determined when he

worked (in that they provided the runs to him), restricted his ability to use the one asset

he owned in the service of any other company, determined what order he would do his

deliveries in (based on their determination of the time of pick-ups and drop-offs), was

integrated entirely into Buckley’s operations, was paid bi-weekly on the same schedule as

workers, held all of the licenses/insurance/ownership documentation necessary for Rossa

to work, had a continuing need for Rossa’s services, controlled the worksite and other

equipment (trailers) that Rossa worked at, and was the only party dealing with the public.

(xi) Libin submissions

[109] As noted earlier, I have determined that Mr. Libin’s clients, Pace and Trac, were not

Schedule 1 employers at the time of the November 18, 2008 accident.

[110] Mr. Libin’s submissions do not deal with the issue of independent operator/worker status.

Rather, he asks for an order pursuant to section 29(4) of the Act, that no damages, contribution or


indemnity be recoverable against Pace and Trac for the portion of the loss or damage that was

caused by the fault or negligence of any Schedule 1 employer.

(xii) Orlando/Burrison submissions

[111] Mr. Orlando/Ms. Burrison submit:

Robert Babicki should not be precluded from proceeding with a civil action against Frank

Rossa because the evidence heard and received in relation to this Application clearly

establishes that, at the time of this incident, Frank Rossa was working as an independent

operator and not an employee of Buckley.

In the alternative, if it is determined that Frank Rossa was a Schedule 1 worker for

Buckley and working in the course of his employment at the time of the incident, then

Robert Babicki should not be precluded from receiving Statutory Accident Benefits from

Allstate because he has a civil action against the Interested Parties, Tract Lease Inc., et.

al. [Pace and Trac], which are not Schedule 1 employers.

[112] Mr. Orlando/Ms. Burrison take the position that, although Rossa’s English language

limitations prevented him from understanding the terms of his agreement with Buckley Cartage

when he signed on to work for them in August 2006, his sons translated the agreement for him

shortly thereafter, and he understood that he was joining Buckley Cartage as an independent

operator. He was also made aware by his sons that the WSIB had classified him as an

Independent Operator, in response to the application he submitted in August 2006.

[113] As far as the operation of the agreement is concerned, they point out that the routes and

mileage Rossa drove varied from month to month. Buckley Cartage did not guarantee Rossa any

trips, but if routes were available, Rossa had the ability to choose which ones he would take, or

to refuse all of them. He was not a member of the union which represented employee drivers,

and was not paid for vacation days or sick days when there were no routes available for him, nor

did Buckley Cartage provide Rossa with any extended health, sickness or disability benefits. In

addition, Buckley Cartage did not contribute or deduct CPP or EI premiums or issue Rossa a T4

or T4A income tax slip. Rossa operated as a sole proprietor who was required to file a GST

return.

[114] Mr. Orlando/Ms. Burrison acknowledge that, although Rossa was free to drive for other

transport companies, his agreement with Buckley Cartage did not allow him to use his tractor for

any such work. However, they also point out that Buckley Cartage was similarly not permitted

to use Rossa’s tractor for any reason when Rossa was not driving it.

[115] Mr. Orlando/Ms. Burrison set our various responsibilities for Rossa and Buckley Cartage

under the terms of their agreement, and identify an extensive list of benefits provided to

employee drivers under the terms of the collective agreement in place in the workplace, none of

which were available to independent operators such as Rossa.

[116] Mr. Orlando/Ms. Burrison also identify the various factors set out in OPM Document

No. 12-02-01 that are taken into account in determining whether a driver is a worker or

independent operator, as well as the specific questionnaire developed by the Board for the

trucking industry. They also accept the relevance of the “business reality test”, set out in

Tribunal jurisprudence, and the various factors that are appropriately taken into account in

making a status determination.


[117] Mr. Orlando/Ms. Burrison submit that all prior Tribunal cases involving the relationship

between a driver and a trucking company include elements of both an independent operator and a

worker status, but point to specific decisions that emphasize the significance of two factors: the

capital investment and the clear intention of the parties. They also point to jurisprudence which

establishes that parties can have an exclusive relationship that is not necessarily an employment

relationship, particularly in the trucking industry.

[118] As far as the intention of the parties in this case is concerned, Mr. Orlando/Ms. Burrison

submit that the agreement itself, which was signed by both Russo and Buckley Cartage, and

formed the basis of their arrangement, specifically states that Rossa was to be considered an

independent operator and not an employee. They also point out that Russo and Buckley both

confirmed this intention during testimony at the hearing, and that the Board agreed with this

characterization in finding that Russo was an independent operator for purposes of the Act.

[119] Mr. Orlando/Ms. Burrison ask me to give considerable weight to the significant

investment Russo made in purchasing his tractor. They also point out that this vehicle allowed

Rossa to operate his business, with the power to decide what company he wanted to work for,

and to move from company to company as he did during the 2004-2006 period.

[120] They also submit that Rossa was keenly aware of his degree of financial risk as an

independent operator:

Mr. Rossa bore the entire financial burden of the Lease for the Tractor. If he did not

receive trips/routes from Buckley or was sick or on vacation, he did not receive any

remuneration from Buckley, but he was still responsible for the Lease payments of

$2,266.84 per month to Wells Fargo. In addition to the Lease payments, Mr. Rossa was

responsible for paying for the plates, vehicle permit, Commercial Vehicle Operator

Registration certificate and insurance on the Tractor on a monthly basis. Mr. Rossa paid

for all the maintenance on his Tractor, which had to be performed by non-Buckley truck

mechanics. The maintenance included, but was not limited to, annual inspections and

emissions testing, repairs, oil changes, brakes and tires. Mr. Rossa also paid for a cell

phone, any safety equipment required for the Tractor and for a parking spot for his

Tractor when it was parked off the Buckley premises. If Mr. Rossa was offered a

route/trip by Buckley, he was responsible for paying for the fuel for his trip. In addition,

if his Tractor was no longer driveable during his trip, he was responsible for paying for a

replacement vehicle to complete his trip. Mr. Rossa was also responsible for paying for

any damage to equipment provided by Buckley. Mr. Rossa’s 2008 tax return reveals that

extent of his financial risk as an Independent Operator, as his expenses for that year

totaled $79,555.80, leaving him with a net business income of $17,923.60.

[121] Rossa also remained responsible for lease payments following the November 2008

accident, and was forced to give up his tractor in 2009 when he could no longer afford to make

the monthly payments.

[122] Turning to the issue of the exclusive nature of the arrangement between the parties and

the degree of control exercised by Buckley Cartage, Mr. Orlando/Ms. Burrison submit that,

while Buckley Cartage maintained “a degree of management of the Tractor and Mr. Rossa’s

conduct”, this made commercial sense given the expectations of the trucking industry. They

explain:

Buckley was in the business of transporting goods to customers across Ontario and North

America. This required coordination with other transport companies and industries in a

limited time frame. Mr. Rossa was part of an interdependent relationship that allowed

Buckley’s business, as well as his own business, to succeed. By providing Mr. Rossa


with timelines to pick up or drop off a load when he called in to dispatch for a transport

trip, Buckley could ensure that their customers’ goods were being delivered or picked up

in a timely manner. Similarly, by Mr. Rossa operating his Tractor with the Commercial

Vehicle Operator Registration Certificate, Insurance, Vehicle Permit and Plate and

Ontario Apportioned Cab Card obtained under Buckley’s name, Buckley was increasing

the efficiency in which permits could be obtained and goods could be transported to their

customers.

[123] They also argue that the requirement to submit daily log notes, and to monitor Russo’s

conduct and meet out discipline, were quality control measures put in place by the company to

ensure that their business was not being placed in jeopardy.

[124] Mr. Orlando/Ms. Burrison summarize their position as follows:

In summary, Mr. Rossa was free to fully manage the principal tool of the industry, that

being his Tractor. He was free to make leasing arrangements with any lender, was free to

receive maintenance work from any mechanic, and was free to sell or dispose of the

Tractor. Mr. Rossa was free to enter into an exclusive contract for services with Buckley,

if that arrangement was one which was profitable for him. He was also free to end that

Agreement with Buckley if it was no longer profitable and take his Tractor to another

company. Buckley did not treat Mr. Rossa in any way that would suggest he was an

employee of Buckley; in fact it is clear from Buckley’s testimony that employees of

Buckley [Cartage] were treated very differently than owner/operators. Buckley did not

provide Mr. Rossa with any vacation pay or overtime pay, extended health, sick,

disability or pension benefits. Buckley did not contribute to or deduct any CPP, EI or tax

payments to the government on Mr. Rossa’s behalf or issue him a T4 of T4A. There was

no job security for Mr. Rossa and he was not provided with any pay or compensation

from Buckley after this Incident or upon the termination of Agreement.

[125] Finally, Mr. Orlando/Ms. Burrison take the position that, regardless of whether Rossa

was a Schedule 1 employee for Buckley Cartage and working in the course of his employment at

the time of the August 2008 accident, Babicki should still be entitled to receive accident benefits

from Allstate, on the basis that Pace and Trac were not Schedule 1 employers.

(xiii) Monaghan/Taylor reply submissions

[126] Mr. Monaghan/Ms. Taylor submit that the agreement between Buckley Cartage and

Rossa did not “capture the intention of this unsophisticated person of limited comprehension of

English for the purpose of applying the business reality test”, and that a “robust analysis” of the

various criteria suggest that the prevailing character of the relationship was that or worker and

employer.

[127] In their view, Mr. Rossa’s intention is appropriately determined on the basis of his

testimony at the hearing, where he stated that “he wanted to work as a truck driver”:

His understanding of the relationship is simple and practical, not philosophical. Buckley

will pay him a certain amount to drive for them full-time. This is what he wants, so he

accepts the work, and signs the paperwork that Buckley requires him to sign, in order to

do the work. It is specious to extrapolate a grand intent in this case when Mr. Rossa’s

intention was clear from his own evidence and in circumstances where his own

understanding of the relationship is plainly unsophisticated.

[128] As far as the capital investment in the tractor is concerned, Mr. Monaghan/Ms. Taylor

take the position that the manner in which compensation for non-employee drivers was

determined by Buckley Cartage “minimizes the drivers’ degree of risk and opportunity for profit

and leaves them in substantially the same situation as company drivers”. In their view, Rossa’s


capital investment in the tractor is not sufficient, in the absence of other factors, to indicate that

he was “performing services in a business on his own account”.

[129] Mr. Monaghan/Ms. Taylor accept that Tribunal decisions have found a continuum

between worker and independent operator in the transport industry, based on particular facts and

circumstances, and that the particular situation in this case situates Rossa at the “worker” end of

the continuum.

(xiv) Murray reply submissions

[130] Mr. Murray submits that the Tribunal does not have jurisdiction to make any order

regarding Babicki’s right to receive Statutory Accident Benefits, as requested by Mr.

Orlando/Ms. Burrison. In his view, the Tribunal’s authority is restricted to the specific findings

set out in section 31 of the Act, and any other determinations are within the purview of other

bodies.

[131] Mr. Murray also submits that Rossa was significantly limited in the use of his only capital

investment, his tractor. It could only be used for Buckley Cartage deliveries, and any alternative

driving arrangements required the company’s prior approval. In his view, these “are significant

restrictions in that they minimize [Rossa’s] ability to use his capital investment to the point

where the tractor is in fact under the complete control of Buckley”.

[132] Mr. Murray also submits that Mr. Rossa’s freedom to drive for other transport companies

was artificial:

It is true that he could drive for another company just as any other Buckley employee

could secure a second job driving for another company. If Rossa did drive for another

company his only operational tool, the tractor, would not be available as it is restricted

for use by Buckley. As such, Rossa did not have any real growth opportunity. Rossa had

no mobility, and his profit margin and market size were fixed by Buckley.

[133] Finally, Mr. Murray supports Mr. Monaghan/Ms. Taylor’s position that the increased

mileage rates and fuel surcharge payments made by Buckley Cartage to non-employee drivers

“accounted for the increased operational costs associated with tractor ownership”, reduced the

risk of loss, and placed these drivers in a remuneration scheme equivalent to employee drivers.

(xv) Analysis and findings

[134] The issue of whether an individual is an “employee/worker” or an “independent

operator/contractor” has a long history in both court jurisprudence and rulings of this Tribunal.

The widely recognized and often quoted Canadian judicial authority setting out the proper

framework for considering the issue is the Supreme Court of Canada ruling in 671122 Ontario

Ltd v. Sagaz Industries Canada Inc. (2001) SCC 59. In that decision, Major J., for the court,

reviewed a number of earlier authorities and concluded (at paragraphs 46-48):

In my opinion, there is no one conclusive test which can be universally applied to

determine whether a person is an employee or an independent contractor. Lord

Denning stated in Stevenson Jordan, supra, that it may be impossible to give a

precise definition of the distinction (p. 111) and, similarly, Fleming observed that

“no single test seems to yield an invariably clear and acceptable answer to the

many variables of ever changing employment relations . . .” (p. 416). Further, I

agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, supra, at p.

38, that what must always occur is a search for the total relationship of the

parties:


[I]t is exceedingly doubtful whether the search for a formula in the nature of

a single test for identifying a contract of service any longer serves a useful

purpose. The most that can profitably be done is to examine all the possible

factors which have been referred to in these cases as bearing on the nature of

the relationship between the parties concerned. Clearly not all of these

factors will be relevant in all cases, or have the same weight in all cases.

Equally clearly no magic formula can be propounded for determining which

factors should, in any given case, be treated as the determining ones.

Although there is no universal test to determine whether a person is an employee

or an independent contractor, I agree with MacGuigan J.A. that a persuasive

approach to the issue is that taken by Cooke J. in Market Investigations, supra.

The central question is whether the person who has been engaged to perform the

services is performing them as a person in business on his own account. In

making this determination, the level of control the employer has over the

worker’s activities will always be a factor. However, other factors to consider

include whether the worker provides his or her own equipment, whether the

worker hires his or her own helpers, the degree of financial risk taken by the

worker, the degree of responsibility for investment and management held by the

worker, and the worker’s opportunity for profit in the performance of his or her

tasks.

It bears repeating that the above factors constitute a non-exhaustive list, and there

is no set formula as to their application. The relative weight of each will depend

on the particular facts and circumstances of the case.

[135] This approach has been followed by the Tribunal in many cases over an extended period.

A number of tests have been used to examine the issue, leading to the development of what is

referred to as the “business reality test”. Decision No. 885/91, for example elaborates:

The best a Panel can do in these situations is weigh the various indicia and form an

impression as to the prevailing character of the relationship. WCAT Decision No. 921/89

(1990), 14 W.C.A.T.R. 207, traced the evolution of tests developed by the Tribunal to

deal with these situations. It is not necessary to trace the evolution outlined in that

decision. The decision went on to characterize the test which has evolved at the Appeals

Tribunal as, in essence, a "hybrid test" or "business reality test."

[136] And in Decision No. 921/89, the Panel stated:

The actual name applied to the test, whether "integration" test, "organization" test,

"hybrid" test or "business reality" test is not important. What is important is that parties

have an idea of the factors to be considered by the Appeals Tribunal in determining status

as a "worker" or "independent operator". By referring to these factors, parties may

themselves develop a sense of the character or reality of the business relationship and

thus make a realistic assessment of the situation. It is the opinion of this Panel that the

factors enumerated in this decision assist in this goal to a greater extent than merely

asking whether the work is "integral" to the overall business operation. The question to

be asked is 'what is the true nature of the service relationship between the parties, having

regard to all relevant factors impacting on that relationship?' The resulting analysis,

based on business reality, should lead to a decision in accordance with the real merits and

justice of the case.

[137] The criteria commonly considered under the business reality test are as follows:

whether the individual is in a business sufficiently independent that he or she bears

the costs and risks of compensation;


ownership of equipment;

evidence of control;

method of payment;

business indicia;

the degree of integration;

furnishing of equipment;

chance of profit or loss;

the parties’ intentions;

business or government records which reflect on the status of the parties;

whether the individual must supply the services personally or can substitute other

persons;

the economic or business market;

the influence of legislative and licensing requirements; and

whether the person structures his or her affairs for various purposes as if he or she is

an independent operator.

[138] These considerations are consistent with the policies and guidelines in Board OPM

Document No. 12-02-01, set out earlier in this decision.

[139] There is no dispute among the parties in this appeal that the proper approach to

determining whether a person is a worker or an independent operator is multifactorial. The

significance and weight to be given to each relevant factor will vary, as is clear from various

Tribunal decisions.

[140] The representatives have all referred me to some of this jurisprudence in support of their

positions (Decision Nos. 1906/11, 514/11, 1030/13, 2073/07, 1142/08 and 598/12 for

Mr. Monaghan/Ms. Taylor; 107/10, 1658/11, 16/11, 1443/06, 896/00, 1720/03, 2239/09, 805/03,

1362/06 and 834/09R for Mr. Murray; and 514/11, 2073/07, 1142/08, 598/12 and 940/05 for

Mr. Orlando/Ms. Burrison.). I have reviewed all of these decisions and, while they are useful in

describing relationships among players in the trucking industry, it is clear that they are all highly

fact-specific. My challenge here is to apply the framework, which is common to all Tribunal

appeals in this field, to the specific facts and circumstances of the case before me, and to

determine which factors and considerations predominate.

[141] One factor given significant weight within the trucking industry is ownership of the

tractor. If an individual makes a significant capital outlay in purchasing or leasing a tractor, and

assumes the corresponding obligations and risks, this is generally seen as weighty evidence in

favour of a finding of independent operator status.

[142] There is no dispute in this case that Rossa owned his tractor, pursuant to a lease

agreement with Wells Fargo. Buckley Cartage was not a party to this lease agreement and had

no responsibilities under its terms.


[143] It has been argued by Mr. Monaghan/Ms. Taylor, as well as Mr. Murray, that the

differential mileage rate paid to employee-drivers and independent operators was intended to

cover the financing costs for the tractor. Using information contained in the Case Record, they

submit that Rossa’s monthly earnings were approximately $2,000 higher than an employee-

driver’s, and that this approximates the monthly lease payment for the tractor.

[144] I accept that the mileage differential paid to various drivers evidences a recognition on

the part of Buckley Cartage that independent operators have added financial obligations. They

are required under the terms of their agreement to provide a tractor for use in Buckley Cartage’s

business and, given the competitive nature of the trucking industry, as noted by Buckley in his

testimony, a transport company must provide drivers with a competitive remuneration package.

However, on the other hand, the facts in this case clearly establish that Rossa took on a

significant degree of risk in purchasing his trailer. After his contract with Buckley Cartage was

terminated, and he was unable to find alternative work, he was not able to make his monthly

payments under the lease, and his investment was forfeited.

[145] In my view, Rossa’s investment in purchasing and financing his tractor is the strongest

factor in favour of a finding of independent operator status.

[146] The intention of the parties in forming their relationship is another important

consideration. A written agreement or contract if often useful in making this determination.

[147] Buckley Cartage developed an “Independent Contractor” agreement that had to be signed

by any non-employee driver who wanted to work for the company. The standard form

agreement was tabled as an exhibit in this appeal, and there is no dispute that Rossa signed one

when he re-joined Buckley Cartage in August 2006. The title of the agreement is strong

evidence of Buckley Cartage’s intention to treat its non-employee drivers as independent

operators, and Article 11.00 specifically defines the relationship as follows:

It is hereby acknowledged, understood and agreed that the relationship between the

Company and the Independent Contractor creased herein is not one of principal and

agent, nor master and servant, nor employer and employee. The relationship between the

Company and the Independent Operator is that of mutually aligned contractors each

providing in its role to the success of this Agreement for the transportation services

contracted and provided.

[148] The fact that Rossa also signed this agreement would normally be considered strong

evidence of his intentions regarding the type of relationship he was entering into. However, as

Rossa clearly testified at the hearing, his limited English language facility prevented him from

understanding the content of the agreement when he signed it. He wanted to work for Buckley

Cartage, and he understood that signing the agreement was a pre-condition for doing so. He did

not seek or obtain legal advice before signing, and although Buckley testified that there was

some capacity to negotiate mileage rates, no such negotiation took place in Rossa’s situation.

The contract is accurately characterized as a “take it or leave it” proposition and, in my view,

Rossa was not fully aware of the implications when he signed the document. While Rossa went

on to testify that his sons, who speak English, subsequently went over the document with him,

there is no suggestion that they were involved in the trucking industry and would have sufficient

knowledge of the relevance and significance of the highly legal language used in the agreement.

[149] While I accept that the agreement itself is evidence of an intention on the part of Buckley

Cartage and Rossa to enter into an independent operator relationship, the absence of legal advice


or negotiation, and Rossa’s acknowledged limited language facility, reduces the weight given to

this factor in the particular circumstances of this case.

[150] There are also a number of other factors present in this appeal that could favour a finding

of independent operator status.

Rossa signed and filed a WSIB Independent Operator application with the Board,

which was approved. However, as was the case with the Buckley Cartage

Independent Contractor Agreement, Rossa did not understand the content of the

application when he signed it. He simply knew that he had to sign the document as

a condition of working for Buckley Cartage, and the weight of this factor is reduced

accordingly.

Buckley Cartage did not provide Rossa, or any of its independent operators, with

any vacation pay, statutory holiday pay or medical benefits, nor did it contribute to

any pension plan. In contrast, a wide range of benefits were paid to employee-

drivers under the terms of a collective agreement.

Buckley Cartage could terminate its arrangement with Rossa, as provided for in the

agreement, without triggering severance entitlements.

Buckley Cartage did not make any deductions from Rossa’s pay for CPP or EI

premiums, nor did it make any at-source income tax deductions. No T4 or T4A

slips were issued to Rossa.

The agreement between Buckley Cartage and Rossa did not prevent Rossa from

driving for another transport company or providing a substitute driver for the

tractor. However, the tractor itself was dedicated to exclusive use by Buckley

Cartage, and any substitute driver required Buckley Cartage’s approval.

Buckley Cartage provided limited direction to Rossa on a daily basis. His travel

routes were left up to him, and Buckley Cartage was just concerned that the goods

be delivered to the customer at the agreed-upon time. However, Rossa and other

non-employee drivers were paid a mileage rate calculated by a computer software

program, based on the shortest distance to the customer’s premises.

Buckley Cartage was under no contractual obligation to provide Rossa with any set

amount of work. However, the evidence suggests that, subject to periods when he

was out of the country, Rossa drove for Buckley Cartage on a daily basis.

Rossa, not Buckley Cartage, was responsible for maintaining and repairing the

tractor to a standard required under the terms of the agreement, as well as

government regulatory requirements. He was also obliged to reimburse Buckley

Cartage if he damaged any equipment owned by the company.

Rossa was free to terminate his agreement with Buckley Cartage, and market his

services to other transport companies, and in fact did so during the 2005-2006

period.

Rossa was not required to wear a Buckley Cartage uniform, but he chose to do so.

[151] Turning now to the factors favouring a worker/employer relationship, a number are

present in this case.


[152] Significantly, there are few indicators that Rossa was operating an independent business

enterprise.

[153] Rossa did not incorporate a company register a business name, and had no office or

business phone number. He was paid by cheque, issued in his name. And his 2008 T1 income

tax form, which was tabled as an exhibit at the hearing, reflects that he reported income as a self-

employed individual; he paid CPP premiums; he did not remit GST payments; and his

accountant advises that he was eligible to make RRSP contributions for the subsequent tax year.

[154] Rossa did not hire any employees, and his only asset was his tractor. Under the terms of

his agreement with Buckley Cartage, the tractor could only be used to deliver goods for Buckley

Cartage and no other transport company. While it is accurate to say in a technical sense that

Rossa was himself free to drive for other companies, there was no such flexibility in any real

sense. He did not have any other vehicles that could be used for that purpose, and no employees

who could drive the Buckley Cartage tractor.

[155] There is also no suggestion that Rossa intended to expand his business by hiring more

people or buying more tractors. His pattern of work, as described in testimony, was to make

arrangements to deliver goods for a single transport company, using his one tractor, and to work

as much as possible for that one company. And while Buckley Cartage was not contractually

bound to provide Rossa with regular work, Rossa and Buckley both testified that he in fact

worked on virtually an every-day basis, subject to times when he was out of the country visiting

family in Poland.

[156] Rossa was also not involved in marketing his services to potential clients, a function

commonly associated with operating a business. He had all the work he needed with Buckley

Cartage. And it was Buckley Cartage, not Rossa, which was responsible for all customer-related

dealings. Rossa did not negotiated delivery charges, identify schedules, collect fees, administer

accounts or deal with customer complaints; he simply picked up the trailer and bill of lading

assigned to him by the Buckley Cartage dispatcher each morning, completed the delivery,

advised the dispatcher accordingly, returned the trailer to the Buckley Cartage depot, and

repeated the process the following day.

[157] The degree of control exercised by a transport company over its drivers is an important

factor in determining the status of a driver and, in my view, Buckley Cartage had a high degree

of control in its arrangements with Rossa and other “independent operators”. The CVOR,

license, insurance, and registration documentation for Rossa’s tractor were all held by Buckley

Cartage. When Rossa’s agreement was terminated, Buckley Cartage had the right to remove all

registrations relating to Rossa’s tractor, including the license plate, eliminating Rossa’s ability to

even drive his vehicle off the company’s premises. Once the Independent Contractor Agreement

was executed, Buckley Cartage assumed full control of the tractor. The tractor was painted with

the company logo and company uniforms were provided to drivers, at their option. And,

significantly, Rossa was required to forego any opportunity to use his tractor for any purpose

other than to make deliveries for Buckley Cartage.

[158] The terms of the contractual arrangements with Buckley Cartage also limited Rossa’s

ability to exercise entrepreneurial skills in increasing profitability. This was not a situation

where efficiency enhanced remuneration. Buckley Cartage determined when and where Rossa’s

work would take place, and he was paid a set mileage rate, determined by a computer program

on the basis of the shortest distance to the customer’s premises. Early deliveries did not generate


a bonus payment, and the long-distance nature of the work did not allow for an opportunity to

add a second delivery and thereby increase wages. Profit margins were determined through

negotiations between Buckley Cartage and its customers, and although Buckley Cartage assumed

a degree of risk should problems associated with a delivery increase costs that could not be

passed on to the customer, Rossa was shielded from any such risk. He was paid for all

deliveries, based on the assigned mileage, regardless of whether Buckley Cartage was paid by

the customer.

[159] Rossa was also required to comply with a comprehensive set of rules and regulations set

out in a Driver Handbook issued to all drivers, regardless of status. It detailed operational

expectations, inspection requirements, log book procedures, security expectations and customs

procedures. The Handbook, which was signed by the drivers, also included schedules setting out

policies relating to workplace violence; alcohol and drug use, including testing; safety

practices; and smoking policies. All schedules had to be individually signed. Buckley Cartage

also had the authority to discipline Rossa, and did so over the course of his time as a driver.

Buckley Cartage developed written documents titled Company Record of ‘Written’ Corrective

Notice and Record of “Last Chance Agreement’, and documentation provided during the hearing

confirm that Rossa was disciplined for the dangerous operation of his vehicle, improper pre-trip

inspection, speeding, and falsification of a log book entry.

[160] It is also clear on the evidence that the relationship between independent contractors

working for Buckley Cartage and its employee drivers was highly similar in a number of ways.

Employee drivers were unionized, and various benefits, discipline and termination policies were

set by the terms of a collective agreement that did not apply to independent contractors.

However, a number of key components of the employment relationship applied to all drivers,

regardless of status.

[161] The actual work performed by all drivers was essentially the same. Trailers were

assigned to specific tractors by Buckley Cartage dispatchers on a daily basis, and driven to

customer locations. Each category of driver was paid on the basis of mileage driven, and

payments to all drivers were made on a bi-weekly basis by cheque. There was a rate differential,

based primarily on a recognition that employee drivers were not required to supply a tractor, but

the manner of payment was the same. All drivers, regardless of status, were required to

participate in the same regular training programs, complete the same log books, adhere to the

same rules and procedures, and to sign the same Driver Handbook and accompanying schedules.

All drivers were also subject to discipline and termination.

[162] Mr. Orlando/Ms. Burrison point out that prior Tribunal decisions have established that

parties can have an exclusive relationship that is not necessarily one of employer/employee. I

accept that this is the case. However, again, the particular facts and circumstances of an

individual case must be taken into account. One example raised by Mr. Orlando/Ms. Burrison is

illustrative.

[163] In Decision No. 940/05, the Vice Chair found, on the basis of the relevant facts, that the

exclusive relationship between the company and the independent operator “reflected a mutually

beneficial interdependent relationship”. He made this finding on the basis of evidence

establishing that the independent operator “retained a status separate from the operation of [the

company]”, and that the weight accorded to the degree of control exercised by the company was

minimized. In that regard, the Vice Chair stated:


However, in my opinion, the control stipulated by the contract in the present case had

little or nothing to do with the manner in which [the independent operator] carried on his

business but focused primarily on the manner in which [the independent operator]

represented the interests of [the company]. The controls were, in essence, public

relations controls that did not go to the heart of the manner in which [the independent

operator] conducted his business.

[164] In my view, and for reasons I have outlined, the various controls present in the

relationship between Buckley Cartage and Rossa were not driven by public relations or other

similar non-business considerations.

[165] In each appeal it is important to accept that exclusivity in arrangements may not reflect

an employer/worker relationship but, in my view, barring particular exceptional circumstances,

the fact that a driver’s entire relationship is with one transport company, who provides the

equivalent of full-time work, is a strong indicator of an employment relationship. I agree with

the comments made by Robertson J.A. in Joey’s Delivery Service v. New Brunswick (Workplace

Health, Safety and Compensation Commission)[2001] C.C.S. No. 1596, (N/B.C.A.):

To hold that the drivers in those cases were carrying on business for themselves is to

ignore the degree of control exercised by the company over its employees. Specifically,

drivers worked full-time for one employer, on a continuing basis, and were not permitted

to work for others. If you are working full-time in the business of another, it is painfully

difficult to accept that you are carrying on your own business as an independent operator.

[166] As noted earlier, determining the status of drivers in transport industry invariably

involves a balancing of relevant factors, some favouring a finding of independent operator status

and others indicative of an employer/worker relationship. No one factor is determinative, and

the weight accorded to the factors varies depending on the facts and circumstances of an

individual employment relationship.

[167] For reasons I have outlined, while Rossa’s relationship with Buckley Transport includes

some factors favouring independent operator status, I find that they are outweighed by other

factors more typical of the status of a worker.

[168] I have already determined in this appeal that Allstate, Buckley Cartage and Wells Fargo

were Schedule 1 employers at the time of the November 18, 2008 accident, that Babicki was a

Schedule 1 worker, and that Babicki is barred pursuant to sections 28(1) and 31(1) of the Act

from maintaining his civil action against these companies. Having now found that Rossa is also

a Schedule 1 worker, the bar extends to him as well. Pace and Trac, on the other hand, are not

Schedule 1 employers, so the sections 28 and 31 findings do not apply to them.

[169] To summarize, I find that the respondents, Robert Babicki by his litigation guardian,

Anetta Babicki, and Anetta Babicki personally, are barred by sections 28(1) and 31(1) of the Act

from proceeding with the action for damages in the Ontario Superior Court of Justice File

#CV-10-03077-00 against Fransiszek Rossa and all of the applicant and co-applicant companies

that qualify as Schedule 1 employers. These companies are: Buckley Cartage Limited, Wells

Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada.

[170] I further find that the respondents are not barred by sections 28(1) and 31(1) of the Act

from proceeding with the action for damages in the Ontario Superior Court of Justice File

#CV-10-03077-00 against any or all of the interested parties that do not qualify as Schedule 1

employers. These companies are: Pace International Inc., Interpol Inc. and Trac Lease Inc.


[171] Mr. Libin, on behalf of Pace and Trac, has asked for an order under section 29(4) of the

Act, limiting their exposure in the civil action.

[172] Section 29 reads, in part, as follows:

(2) This section applies in the following circumstances:

1. In an action by or on behalf of a worker employed by a Schedule 1

employer or a survivor of such a worker, any Schedule 1 employer or a

director, executive officer or another worker employed by a Schedule 1

employer is determined to be at fault or negligent in respect of the accident

or the disease that gives rise to the worker’s entitlement to benefits under

the insurance plan.

…

…

(3) The court shall determine what portion of the loss or damage was caused by the fault

or negligence of the employer, director, executive officer or other worker and shall

do so whether or not he, she or it is a party to the action.

(4) No damages, contribution or indemnity for the amount determined under subsection

(3) to be caused by a person described in that subsection is recoverable in an action.

[173] I find that a declaration under section 29(4) is appropriate in the circumstances of this

appeal, in order to ensure that the remaining defendants in the civil action are not responsible for

the liability of those companies who have been removed from the action by virtue of the Act.

[174] Accordingly, pursuant to section 29(4) of the Act, no damages, contribution or indemnity

for any amounts determined under subsection 29(3) of the Act to be caused by the fault or

negligence of the employer, director, executive officer or other worker of Buckley Cartage

Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company of

Canada are recoverable in a civil action.

[175] Finally, Mr. Orlando/Ms. Burrison submits that, regardless of whether Rossa is a

Schedule 1 employee, Babicki is entitled to continue to receive his statutory accident benefits

from Allstate because Pace and Trac are not Schedule 1 employers. They ask that a provision to

that effect be included in this decision.

[176] Mr. Murray, on behalf of Allstate, submits that I do not have jurisdiction to make a

determination of that nature.

[177] I concur with Mr. Murray. My authority in this matter is restricted to determining

whether the requirements of sections 28 and 31of the Act are present on the evidence, and if so,

to what extent. Any consequences that flow from these findings are the jurisdiction of other

tribunals or the courts.


DISPOSITION

[178] The application is allowed, in part.

[179] Fransiszek Rossa was a worker in the course of his employment at the time of the

workplace accident on November 18, 2008.

[180] The civil action brought by in the Ontario Superior Court of Justice File #CV-10-03077-

00 by Robert Babicki by his litigation guardian, Anetta Babicki, and Anetta Babicki personally

Babicki is removed by sections 28(1) and 31(1) of the Act against Fransiszek Rossa, Buckley

Cartage Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company

of Canada.

[181] The civil action brought by in the Ontario Superior Court of Justice File #10-03077-00 by

Robert Babicki by his litigation guardian, Anetta Babicki, and Anetta Babicki personally Babicki

is not removed by sections 28(1) and 31(1) of the Act against Pace International Inc., Interpol

Inc. and Trac Lease Inc.

[182] Pursuant to section 29(4) of the Act, no damages, contribution or indemnity for any

amounts determined under subsection 29(3) of the Act to be caused by the fault or negligence of

the employer, director, executive officer or other worker of Buckley Cartage Limited, Wells

Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada, are

recoverable in a civil action.

DATED: November 4, 2014

SIGNED: T. Mitchinson

workplace safety and insurance appeals tribunal …wsiat.on.ca/decisions/2014/1307 13.pdf ·...

Documents