LABOUR RELATIONS |
Dynamex Canada Inc. v. Mamona
T-1729-00
2002 FCT 393, Kelen J.
9/4/02
9 pp.
Application for judicial review of referee's decision under Canada Labour Code individual respondents applicant's employees, and ordering funds held in trust be disbursed to respondents--Issues whether referee had jurisdiction under Code to determine whether respondents employees of applicant; if so, whether referee's decision patently unreasonable--Respondents courier drivers for applicant, corporation in delivery and courier business--In 1997, respondents filed complaint against applicant pursuant to Code, s. 25, seeking to be paid for general holidays and vacation pay for 1997 through 1999 based on respondents having status of "employees" of applicant company--First, inspector under Code determined employee/employer relationship existed between parties, such that complaint admissible under Code, then issued order requiring applicant to remit certain amounts of money to Receiver General on account for respondents--Applicant appealed payment order to referee on grounds respondents independent contractors for purposes of Code--Referee affirmed inspector's decision and finding that respondents employees of applicant for purposes of Code, and entitled to payment of amounts awarded by inspector--Application dismissed--Standard of review that of correctness--Application of landmark S.C.C. decision in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 to effect Court must apply functional and pragmatic approach to determine whether preliminary question (here, whether respondents employees or not) intended by legislature, expressly or by implication, to be question within jurisdiction conferred on tribunal (referee)--Referee under Code unable to determine whether person employee would be unable to fulfill purpose of statute itself--Upon reviewing Code and case law, referee intended by legislature to have jurisdiction to answer this preliminary question--Therefore, referee acted within jurisdiction in deciding whether respondents employees, and Court will not intervene unless referee has erred in patently unreasonable manner--Furthermore, two strong privative clauses restrict judicial review of referee's decision herein--Referee here considered all factors traditionally developed by case law, and applied correct legal tests--Here, decision far from patently unreasonable-- Accordingly, even if Court did not agree with decision, and even if decision contrary to Tax Court case law that courier industry normally made up of independent contractors, not employees of courier company, referee's decision herein and on facts herein not patently unreasonable--On subsidiary point, not patently unreasonable that vacation pay be based on actual amounts paid to respondents, since these amounts represent value of their services, including tools of their trade--Canada Labour Code, R.S.C., 1985, c. L-2, s. 25.