WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1034/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1034/12 BEFORE: J. Josefo: Vice-Chair HEARING: May 24, 2012 at Toronto Oral DATE OF DECISION: June 20, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1422 APPLICATION FOR ORDER UNDER SECTION 31 REMOVING THE RIGHT TO SUE APPEARANCES: For the applicants Rampino and Tokmajian Inc. and Can-Ar Coach Services: For the respondent Mr. Nagalingam: Mr. R. Kleinman, Barrister and Solicitor Mr. D. Himelfarb and Ms. B. Lui, Barristers and Solicitors For the interested party C Taxi: Mr. A. Gowher, (CEO of the interested party) Interpreter: Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1034/12 REASONS (i) The right to sue application parties and brief background [1] This application under section 31 of the Workplace Safety and Insurance Act (the WSIA ) is brought by the applicants Mr. Rampino, Tokmajian Inc., and Can-Ar Coach Services. The applicants apply to the Tribunal to determine whether the respondent in this proceeding, Mr. Nagalingam, is barred from pursuing a civil action which he commenced. [2] The legal counsel representing the applicants and respondents are as follows. The applicants are represented by Mr. R. Kleinman, while Mr. D. Himelfarb and Ms. B. Lui represent the respondent. The interested party to this proceeding, C Taxi, appeared through its CEO Mr. A. Gowher. [3] The application arises out of an October 31, 2006 motor vehicle accident ( MVA ). Rampino was employed as a bus driver for Tokmajian Inc. The bus driven by Rampino was owned by Can-Ar Coach Services. Unfortunately, on October 31, 2006 Mr. Rampino is alleged to have crashed into the back of a taxi cab operated by Mr. Nagalingam which cab was, at the time, parked in or near the vicinity of Union Station and the Royal York Hotel in Toronto. [4] As a result of the MVA Nagalingam commenced a civil tort action under court file #CV Rampino, Tokmajian Inc. and Can-Ar Coach Services are the defendants named in that litigation. The defendants, the applicants in this proceeding, seek to persuade me that the respondent herein is barred from pursuing the above-referenced civil tort action. The respondent, of course, resists the application. (ii) Issue [5] It was agreed at the hearing that Rampino was an employee of Tokmajian and was acting in the course of his employment at the time of the October 31, 2006 MVA. It was further agreed that Tokmajian was a Schedule 1 employer pursuant to the WSIA. [6] Thus, the sole issue before me is whether the respondent Nagalingam was a worker or an independent operator when functioning as a taxi driver. If a worker, it was also argued, in particular by the interested party, that Mr. Nagalingam was not an employee of C Taxi, but rather was an employee of V Cab Corporation and Mr. Dakhteh, the then principal or owner of V Cab Corporation. (iii) The facts [7] As discussed above, on October 31, 2006 the respondent had stopped his cab at a pickup point at or near Union Station and the Royal York Hotel, waiting for a fare. The bus owned by Tokmajian and driven by Mr. Rampino hit Mr. Nagalingam s taxi, leading to alleged damages. The respondent commenced the within civil action while the applicants allege that he cannot do so because the respondent was a worker and in the course of employment at the time of the MVA. The applicants submit that the respondent may only seek WSIB benefits for his injuries arising out of the MVA. [8] Certain facts were agreed upon at the hearing. These are as follows: the respondent did not own the taxi plate,

3 Page: 2 Decision No. 1034/12 the respondent was not the owner of the taxi cab, the taxi plate was leased to V Cab Corporation, V Cab Corporation leased approximately ten to 15 plates, the respondent paid $430 weekly to V Cab Corporation for the use of the cab, the respondent retained 100% of the fares he obtained when operating the cab, the respondent had use of the cab from 5 a.m. through to 5 p.m. (the day-shift ) five days per week based upon the rent of $430 weekly which he paid, V Cab Corporation paid maintenance, repairs, insurance, and the fees to C Taxi for the benefit of the dispatch radio, the respondent paid for fuel and car washes, the respondent could drop the cab off at V Cab Corporation s garage or exchange the car with the night driver, as the respondent and the night driver agreed amongst themselves, the respondent could not substitute another driver during the day without V Cab Corporation s approval, the cab had the C Taxi insignia on its dome light, and otherwise was indicated to be part of the C Taxi group, when the respondent issued receipts to customers, the receipts indicated they were from C Taxi, the respondent relied mostly upon the dispatch radio for fares, but was also free to pick up fares off the street, the respondent was not required to wear a uniform designated by either C Taxi or by V Cab Corporation, the respondent had no business cards, advertising materials or regular customers to pick up on a set schedule. (iv) Discussion and conclusions [9] It is not disputed that the applicants in this matter bear the onus of proof. In that regard, see Tribunal Decision No. 2508/09 which states as follows: It is well-established in the Tribunal s case law that the applicants bear the onus of proof in a right to sue application. 1 The rationale for this principle was explained in Decision No. 305/92 (October 6, 1992): In our opinion, a Section 17 [right to sue] Application, like any litigation proceeding, involves a certain onus on an applicant. In the case of a 1 There is a distinction between a right to sue application brought to the Tribunal and an appeal to the Tribunal relating to a claim for benefits. An appeal to the Tribunal is a non-adversarial proceeding, and there is no formal burden of proof on any party. To establish initial entitlement, the evidence must demonstrate on a balance of probabilities that the statutory requirements have been met, subject to the statutory benefit of the doubt. Section 124(2) provides that, where evidence for and against a claim is approximately equal in weight, the issue shall be resolved in favour of the claimant. In this application, there is no claimant, as Jared did not file a claim with the WSIB for this accident.

4 Page: 3 Decision No. 1034/12 Section 17 Application, we are of the view that there is an onus upon the applicant to persuade a hearing panel, on a balance of probabilities, that the evidence justifies the removal of the right to sue. We are also of the view that the right to sue for damages is a long established right under the common law and should not be removed without clear justification. [10] Accordingly, can it be said in this case that the applicants have met their onus of proof that the respondent was in fact a worker of either V Cab Corporation or of C Taxi? [11] In reviewing the evidence, it is clear that the respondent paid a weekly fee of $430 for the opportunity to use a taxi cab for 12 hours per day, five days per week. After such payment was made, the evidence persuades me that the respondent could do whatever he wanted with the taxi cab. As the representative of the interested party C Taxi explained, based upon his 25 years in the taxi business in Toronto, the only sanction that a taxi brokerage company (which is what C taxi clearly was at the time) has would be to prevent a taxi driver from relying upon radio dispatched pick up calls for a period of time. [12] Yet even if such sanction were to be applied, the sanctioned driver would still be free to pick up passengers on the street who were seeking to flag a taxi. The evidence also indicates that during the 12 hour shift for which the respondent essentially rented the cab, he could work as hard or as little as he preferred. If he wanted to go home for lunch and take a nap, nothing stopped him from doing so. If, however, the respondent wanted to be available for every moment of his 12 hour shift, then again, that was a decision within his sole control. If the respondent wanted to spend his time waiting in long lines at taxi stands, hoping for a longer trip to the airport, he could do so. If the respondent chose to cruise the streets in search of fares, or would rather rely primarily on dispatched calls via the radio, again, those were all his decisions to make. [13] The only consequence would be the respondent would have to pay more for fuel if he chose to drive greater distances and for longer periods of time. Thus, it was essentially the respondents gamble if he wanted to drive greater distances, or keep moving in search of fares, or if he chose to wait for fares at a taxi stand, hoping for a longer and thus more lucrative trip. [14] Accordingly, I disagree with the well-argued submissions of Counsel for the applicants, that the respondent had no or very limited entrepreneurial decisions to make. On the contrary, the respondent had every incentive to make multiple choices during each shift regarding how he operated his cab in order to maximize his profit opportunities and minimize his expenses and the concomitant risk of loss. [15] Mr. Gowher, the principal of C Taxi, explained that he took over C Taxi in 2008, and thus after the 2006 MVA at issue in this proceeding. Mr. Gowher explained that starting in 2008 he made some changes to the operation of C Taxi, including mandatory training for drivers occurring several times per year. He had also installed on the various cabs operating under C Taxi s signage GPS systems to allow Mr. Gowher to track the operation and whereabouts of his cabs. Yet the facts and circumstances of 2012, as Mr. Gowher explained them, are not the facts as existed in 2006, before Mr. Gowher took over C Taxi and began in 2008 to implement the various changes that he described in his testimony.

5 Page: 4 Decision No. 1034/12 [16] In 2006 in my view it is clear that C Taxi could not have been the employer of the respondent. At that time V Cab Corporation only had one cab operating under C Taxi signage. C Taxi owned no plates and owned no cabs. Indeed, C Taxi today still owns no plates and no cabs but operates, as Mr. Gowher described, primarily as a brokerage of taxis. [17] It is clear that C Taxi is, like every other taxi dispatch service in Toronto, the public face of the industry. People wishing to reserve a taxi for pick up would call the publicized telephone number of one of the many brokerage companies such as C Taxi, asking the person who answers the phone to please send a taxi. [18] Yet, notwithstanding what arguably could be the somewhat enhanced control that C Taxi currently exercises over its drivers via mandatory training and GPS monitoring, certainly in 2006 the drivers were, as Mr. Gowher explained, free to answer the radio or to ignore it. They did not have to book on any particular calls but could choose to ignore the radio completely and obtain fares from the street. As Mr. Gowher explained, when the weather is inclement, taxi drivers often rely upon street pickups as, when it is raining or snowing, pedestrians are often much more interested in taking a taxi then they may well be on a sunny and temperate day. This also explained, pursuant to what Mr. Gowher stated in his unchallenged evidence, that profits and loss in the taxi business are often weather-related. [19] In my view, Tribunal Decision No.1292/05I well described the operations of the public face of the taxi business. As that decision stated: [46] The Panel has been informed that such an issue has never before been addressed at the Tribunal. We are, of course, not bound by decisions of the Appeals Resolution Officer. We find, on the whole, that the history provided by ARO Patlik and her analysis of the purpose of having two distinct classification units and Rate Groups for the particular circumstances makes good sense. In the case of this employer, the evidence is clear and accepted by the Board, that the employer is engaged only to arrange taxicabs for customers who call them. Clearly, that is a call centre. (emphasis added) [47] The employer does not employ any personnel other than clerical staff or those who take telephone orders, and dispatch cabs to fill those orders. The employer thus has none of the risks that would be associated with a taxicab company employing drivers and other personnel who repair or service cabs. [48] It appears to the Panel that this employer fits best within the historical and long carved out exception for call centres. The employer is not, in fact, a taxicab employer. Rather, the employer is solely a call centre. [20] In my view, that description clearly fits C Taxi, at least in 2006 when this MVA occurred. The Board correspondence to C Taxi dated January 26, 2011 makes it clear that the employer was a taxi dispatch business, not automatically covered under the Act, and thus, C Taxi was not required to register with the Board. [21] Moreover, as the evidence before me amply demonstrates, the relationship between the respondent and C Taxi was, at best, tenuous and indirect. All C Taxi did with the respondent was to provide the option and opportunity of radio dispatch calls. The respondent agreed that he for the most part earned his monies by taking customers via the radio dispatch, but that hardly connotes a significant degree of control between C Taxi and the respondent. After all, if for some reason the respondent displeased C Taxi, the only sanction that C Taxi had against the respondent was to kick him off the radio for several hours. During that time,

6 Page: 5 Decision No. 1034/12 however, the respondent could continue to drive the taxi cab, using C Taxi signage, doing street pickups and earning his income in that way. [22] Accordingly, for all these reasons, the evidence does not lead me to conclude that, in 2006, C Taxi was the employer of the respondent. [23] Can it be said that the respondent was a worker of V Cab Corporation? In my view the correct answer is that the respondent was not a worker at all. Rather, the respondent in this matter, and on these facts, is best described as having been, in 2006, an independent operator. I explain my conclusions as follows. [24] Tribunal Decision No. 2078/09I provided the following useful operation involving the classification of an employer and whether the business employed taxi drivers or if these were independent operators, as follows: [30] In this case, as with many other cases, there are features suggestive of both a worker and an independent operator status. Those suggestive of an independent operator status are discussed in this paragraph. The drivers did not receive a wage from the taxi company but rather obtained payment through customer fares. The drivers had some flexibility in deciding which days they wished to drive and did not require permission to take vacations. The taxi company did not make any deductions for CPP, employment insurance, or income tax. There is some evidence, although somewhat conflicting, that at least one of the drivers owned a vehicle and was responsible for its repairs. There is also some evidence that some drivers at least occasionally chose to lease the vehicle on a daily or weekly basis, pay for gas and retain all collected fares rather than remit a percentage of fares. [31] On the other hand, there are many features suggestive of a worker status. The taxi company paid for the majority of expenses, such as the purchase cost of the vehicles, the license to operate a taxi, liability insurance on the vehicles, radio associated expenses, car repairs and often gas expenses. The company had the power to discipline its drivers and required them to abide by a written document that set out a code of conduct including a dress code, personal hygiene requirements and a no smoking policy. The drivers, for the most part, drove vehicles owned by the taxi company with the company s name on it and did not themselves have any capital expenses. The opportunity for profit or loss depended on the number of hours worked rather than any entrepreneurial judgment or capital expenses. The majority of the fares came from the taxi company s dispatching services. The drivers were not responsible for the maintenance or insurance of the taxi cabs. The vehicles had to be returned to the taxi company s lot at the end of the shift. The company paid the expenses associated with renting a commercial property for running its business and storing its vehicles. [25] I agree that there are often factors that suggest an individual is both a worker and an independent operator. Yet in the matter before me, the facts are somewhat different than are the facts as described in Tribunal Decision No. 2078/09I, above. In the matter before me, the respondent paid for his fuel, a not insignificant expense, as well as kept 100% of the fares he earned, with no split payable to anyone else. In Tribunal Decision No. 2078/09I, as the above excerpt indicates, the employer in that case often covered the gas expenses, as well as mandated that the cabs had to be returned to the taxi company lot at the end of the shift. [26] In the matter before me, the respondent was responsible for the entirety of his fuel costs as well as keeping the car clean, and he and the night driver could arrange on their own how the car was transferred each day between them. The car could be returned to the garage at the end of the shift, or the night driver could pick up the respondent and vice versa at the end of their respective shifts.

7 Page: 6 Decision No. 1034/12 [27] In my view, neither C Taxi nor V Cab Corporation had the requisite degree of control over the respondent for me to conclude that he is better characterized as a worker rather than as an independent operator, able to do with the cab whatever he wishes (as allowed by law) during the 12 hour shifts for which he paid rent for the vehicle. After all, during those 12 hours, whatever monies the respondent would earn would go directly to his own pocket. The respondent also indicated on his tax forms that he was self-employed, and was responsible to remit HST which was included in the taxi fare. [28] The respondent s earnings were, accordingly, dependent upon external factors such as the weather as well as upon how much he drove, and in the locations he drove, which I find was really his choice. The respondent in his examination for discovery stated he stayed mostly in Scarborough and downtown, but I am unable to conclude that he was required to stay in those areas. The respondent further testified in his examination for discovery that he could pick up fares on the street and go wherever the customer required. [29] As Mr. Gowher explained, so long as the respondent acted within the requirements of the by-law that governs the taxi business in Toronto, he could pick up fares anywhere in the municipality and take them anywhere they wanted to go. [30] Mr. Kleinman submitted that Tribunal Decision No. 681/04, which addressed the taxi business in a different municipality, indicates that those plate holders who run many cabs would have greater control over the individual driver due to an inequality of bargaining power. In that regard, Tribunal Decision No. 681/04 stated as follows: [92] It is fair, however, to state a further principal, in addition to our conclusion that an individual plate holder who drives without engaging a driver is an independent contractor. A plate holder who engages many drivers and who uses someone to schedule and to hold a number of plates may well, prima facie, be considered an employer. This is because of the balance of power and control shifting, in some cases, to the individual who controls five or seven or more plates and cars. Such control gives the individual greater bargaining power which could even lead to the attempt to impose certain written terms, which drivers must sign or else. [93] In the case of a driver who drives for someone who has 17 or more drivers on a full or part-time basis, can it be said that one of those 17 is in an equal relationship with that powerful plate holder? We think not. The reality in the industry is that such a plate holder, by very definition, has a great degree of control. That plate holder can dictate if, and then when, a driver drives at all, and if at all, which car and which shift. [31] Yet that case was decided upon its own facts, after hearing testimony from the various interested owners of taxi plates in that municipality. In this matter there was no evidence as to how the then purported owner or manager of V Cab Corporation operated with his drivers. The then owner or manager of V Cab Corporation, Mr. Dakhteh apparently has relocated to the United States and was unable to be served with a summons by the applicants. [32] Accordingly, while Mr. Kleinman speculated that this plate holder could have or might have dictated certain terms and requirements to the drivers given that he purportedly controlled from ten to 15 plates and thus had the ability to set out terms, there is no evidence before me which would allow me to make those findings. Moreover, it could equally be speculated that Mr. Dakhteh was at the time a very much hands off manager who, so long as he received his weekly rent of $430 from the drivers, was content to let them drive as they wished and do what they would (within the bounds of the law) with the cab.

8 Page: 7 Decision No. 1034/12 [33] The evidence that is before me leads to that latter theory being at least as, if not more, applicable than the suggestion that Mr. Dakhteh engaged in significant control over his drivers. After all, the respondent did not have to wear a uniform, could operate the cab as he wished during his 12 hours, could obtain fares via the radio dispatch or via the street as he himself chose, could cruise on the street all day long, or spend his time waiting at taxi stands if he wanted to do so, given that it was the respondent and not V Cab Corporation who paid the fuel costs. There is no other evidence to displace the conclusion that, so long as the weekly rent was paid, the plate owner would not care how the cab was operated, and how many fares were driven by the driver in the course of a day or a week. [34] Indeed, the facts in Tribunal Decision No. 681/04 involved a split of the fares collected between the driver and the plate owner or person in control of the plate. Given that the two parties shared in the daily or weekly proceeds, it is understandable why a plate owner would in that case exercise some control over the work habits of a driver ensuring the drivers were productive, on those facts, is common sense. Yet in this matter, again, an important distinguishing feature is that the driver kept 100% of the fare and did not have to split the take with anyone. All he had to do was pay his fuel costs and keep the car clean. [35] Tribunal Decision No. 1272/06, authored by the same Vice-Chair who decided Tribunal Decision No. 2078/09I, referenced above, stated in this earlier decision as follows: [16] In this case as with many other cases, there are features suggestive of both a worker and an independent operator. Those suggestive of a worker status are discussed in this paragraph. The deceased operated a cab under the banner of the taxi company and obtained fares through its dispatching service. The terms of the relationship between the deceased and the taxi company were at the time of his death governed by a collective agreement. That agreement set out a number of rules regulating the conduct of its taxi drivers and gave the taxi company the ability to enforce those rules through discipline and discharge. The deceased could not drive for a competitor while working under the banner of the taxi company. [17] On the other hand, there are many indicia suggesting that the deceased was an independent operator. He paid for his own fuel and car washes. He worked according to his own schedule and chose when and how long he worked. He had the ability to make a profit or loss by the number of hours he worked. The more he worked, the more fares he collected. He had the ability to pick up his own fares on the street and therefore did not obtain fares solely through the dispatching service. He was paid by the customers he drove rather than by the taxi company. Other than the set fee he paid for dispatching services and for the use and maintenance of the communications equipment, the deceased did not have to remit any of his fares to the taxi company. The taxi company did not make any deductions for employment insurance, CPP or income tax. While the relationship between the taxi company and the deceased was governed by a collective agreement, that agreement referred to the drivers as dependent contractors. This is to be contrasted to the facts in Decision No. 152/95 relied upon by Mr. McCormick where the collective agreement between homecare providers and a non-profit agency consistently referred to the homecare providers as employees. The purpose of the agreement between the taxi drivers and the taxi company/taxi owners in this case was not to set out the terms of an employment relationship but rather: The purpose of this agreement is to provide machinery for the prompt and equitable disposition of grievances and to establish and maintain mutually satisfactory working conditions for all dependent contractors who provide service to the public in a businesslike manner.

9 Page: 8 Decision No. 1034/12 [36] Tribunal Decision No. 1272/06 concluded that the individual in that case was an independent operator, not a worker. I noted that this finding was reached even though the taxi driver in that case was deemed to be by the collective agreement in place a dependent contractor. Yet in the matter before me there was certainly no collective agreement in place between the respondent and either V Cab Corporation or C Taxi. [37] In my view Tribunal Decision No. 354/11, a recent Tribunal decision which considered whether a taxi driver was a worker or an independent operator, involves facts very similar to the facts before me. Tribunal Decision No. 354/11 stated in part as follows: [20] As is not uncommon in cases that involve deciding whether a person is a worker or an independent operator, there are factors that fall on both sides of the equation. This is particularly so in cases involving taxi drivers where the drivers commonly have little or no ownership of business assets but appear to operate with a significant degree of independence. A review of the Tribunal s caselaw reveals that the cases are highly fact specific and that there is no rule that can be applied to taxi-driving operations generally. [22] It is highly significant, in my view, that neither Taxi Taxi nor Scott had any direct pecuniary interest in the work that the respondent did, that is, they had no interest in how much work she did or how efficiently she did it. Taxi Taxi had no interest in whether the respondent showed up for work or not. Taxi Taxi s only financial arrangement was with Scott not with the respondent. Similarly, Scott had no interest in how much work the respondent did. Once she had paid him the flat rate for use of the vehicle and accompanying dispatch services, Scott had no interest in how many calls the respondent took, how efficiently she worked, how many breaks she took and so on. Scott had no interest in how much revenue the respondent generated from the taxi driving. [23] The only financial interest that Scott, and perhaps Taxi Taxi indirectly, had in the respondent s work, is that she paid the flat fee for use of the vehicle and dispatch services. However, in my view, this arrangement is more akin to a person who rents equipment which that person then uses to perform services for a large number of paying customers. In such a scenario, the owner of the equipment may have a modest pecuniary interest in whether or not the person rents the equipment, however, this is because the person is purchasing a service which the owner is selling, not because the person is an employee of the owner. Thus, in my opinion, neither Taxi Taxi nor Scott had any financial interest in the worker which the respondent did, except as it pertained to her decision to rent services from them. [24] Also significant is that neither Taxi Taxi not Scott paid any funds to the respondent. All the income which the respondent generated from her taxi driving she kept, except for the costs which she had to pay to use and operate the vehicle. A very common aspect of the relationship between an employer and a worker is that the employer will pay or remunerate the worker in some fashion. In this case, neither Taxi Taxi nor Scott remunerated the respondent for the work that she did. [25] Much was made at the hearing of this application of the fact that the respondent does not own any business assets or any of the equipment which she used to generate income. And while I acknowledge that ownership of assets is a factor that is absent in this case, as far as the respondent is concerned, I am of the view that when assessing whether a small operation constitutes a business relationship or an employer-employee relationship, a factor which is equally as important as ownership of business assets is the payment of operating costs. Thus, while the respondent did not own any business assets, she did pay the costs of operating a business, that is, she had to outlay funds in order to generate income. In particular, the respondent had to pay a flat rate to use the taxi, and she had to pay for the gas that she used and for car washes.

10 Page: 9 Decision No. 1034/12 [26] The fact that the respondent had to pay costs associated with work that she did to generate income means that there was some risk of loss. If the respondent did not take in enough fares to cover the expenses that she had to pay to drive the taxi, then she would lose money. Because she was exposed to a risk of loss, albeit small, there was a corresponding small opportunity for profit. In my opinion, the amounts that the respondent earned each day which exceeded her operating costs are more properly described as profit than wages. I am of the view that while the parameters were small, the respondent was exposed to a risk of loss and had an opportunity for profit. [28] I note further that in her tax returns the respondent reported that she earned business income and deducted from that income certain business expenses, including the costs of renting the vehicle. Thus the respondent held herself out to government agencies as an independent operator. [29] The respondent had a high degree of control over her work schedule. She could take time off whenever she wanted. She could take vacations without requiring approval. She could take as many breaks and for as long as she liked during her work day. Some control over her work schedule was exercised by Scott. The respondent worked the night shift because Scott used the car himself during the day shift. Further, if Scott required the vehicle at any time, the respondent would be required to give it back to him. While there were some limitations on her work schedule by Scott, the respondent nevertheless exercised a high degree of independence with respect to when she worked. [30] As noted earlier, there are some indicia of worker status in this case. Taxi Taxi does exercise some control over its drivers. As noted, while not required to wear a uniform, the drivers are expected to follow a dress code and to wear clothes of a particular colour. Further, Taxi Taxi did field complaints which were made about drivers and would talk to the drivers about the complaints. Taxi Taxi had authority to discipline a driver by pulling the driver off the road for a period of time. These factors exhibit a degree of control which is more typical of an employer-worker relationship than that of two independent business entities. [32] Thus, as noted earlier, there are factors falling on both sides of the equation in this case. However in my opinion the factors suggesting that the respondent was an independent operator outweigh those suggesting that she was a worker. In coming to this conclusion, I place particular emphasis on the fact that neither Taxi Taxi nor Scott paid the respondent any form of remuneration for the work that she did. On the contrary, the respondent paid Scott money for the use of the vehicle, and paid Taxi Taxi, indirectly through Scott, for the use of their dispatching services. It is difficult to see how a person can be classified as an employee or worker of another entity when that other entity is not paying the person any remuneration. [34] While the facts in Decision No. 1272/06 are similar to those in the present application, they are not identical. In Decision No. 1272/06 the driver not only paid a flat rate for use of the vehicle but also paid periodic lease amounts with a view to taking over the lease of the cab. This was a factor which pointed in favour of independent operator status. No such payments were made by the respondent in the present case. On the other hand, in Decision No. 1272/06, the drivers were governed by a collective agreement, a factor which suggested that they were workers. In the present case, the respondent s working relationship with Taxi Taxi and with Scott was not governed by a collective agreement. Beyond these two factual differences, one of which falls on each side of the ledger, the facts in Decision 1272/06 are very similar to those of the present application, and the conclusion reached by the Vice-Chair in Decision No. 1272/06 fortifies me in the conclusion I have arrived at in this case, namely, that the respondent was an independent

11 Page: 10 Decision No. 1034/12 operator and not a worker at the time of the accident on June 1, Accordingly, her right of action pertaining to that accident is not taken away by the WSIA. [38] In Tribunal Decision No. 354/11, despite the driver in that case having to wear a uniform and with the employer exercising a certain degree of control, for reasons stated in that decision it was ultimately concluded nevertheless that the individual was an independent operator. It seems to me that this conclusion was reached because of the high degree of control which the respondent in that case had over her own work schedule. It is also my view that the Vice-Chair who decided Tribunal Decision No. 354/11 found it important that, even though the respondent did not own the asset (the taxi cab), a factor which is equally as important as ownership of business assets is the payment of operating costs. The Vice-Chair in that decision noted that the respondent paid the costs to operate her business, thus having to outlay funds in order generate income. The funds which the respondent in that case had to outlay was the flat rate used to rent the taxi as well as the fuel costs, and also the need for car washes. Tribunal Decision No. 354/11 observed that the fact that there were these costs outlays made to generate income, led to a finding that there was some risk of loss. [39] In my view, these conclusions are quite applicable to the facts before me. If the respondent in the matter before me did not earn enough from the fares on a weekly basis, he would be at risk of not covering the weekly amount he would pay to rent the taxi. If he did not earn enough to cover his fuel costs, and the costs of having the car washed, he would also risk sustaining a loss as contrasted with earning a profit. [40] The respondent in the matter before me was not party to a collective agreement, nor did he have to wear a uniform, and there is no evidence before me to allow me to conclude that either V Cab Corporation or C Taxi exercised any degree of genuine control over him. Accordingly, I am unable to conclude that the respondent in this matter was a worker and in the course of employment at the time of the unfortunate 2006 MVA. For all these reasons, despite the able arguments of Mr. Kleinman, I conclude that the respondent was an independent operator, not a worker, at the time of the October 31, 2006 MVA. His right of action arising from that MVA is not removed by the Act. [41] I thank all participants for their helpful presentation of this matter.

12 Page: 11 Decision No. 1034/12 DISPOSITION [42] The application is denied. The respondent s right of action against the applicants is not taken away by the WSIA. DATED: June 20, 2012 SIGNED: J. Josefo