Badour v. R. – TCC: Taxi cab driver working for owner of taxi engaged in insurable/pensionable employment

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Badour v. The Queen (September 25, 2014 – 2014 TCC 279) was a EI/CPP decision involving a taxi cab driver working for the owner of the taxi:

[17] The arrangement between the appellant and the worker was quite straightforward.

[18] There was no written contract of employment.

[19] The appellant provided a properly equipped, insured and licensed taxi vehicle and arranged for dispatching services.

[20] In return for driving the vehicle, the worker kept 40% of gross revenues, but paid no expenses. The appellant paid all the expenses out of the 60% of gross revenues that went to him.

[Footnote omitted]

The court reviewed the well-known tests. The worker did not testify and the court was not persuaded that there was a common intention that he was to be self-employed. Ownership of tools and risk of loss pointed in the direction of an employment relationship. The possibility of profit was a mild form of support for a non-employment relationship. The court found that on the evidence the appellant exhibited control over the worker:

[38] While the freedom to work or not and to choose how long to work is more consistent with self-employment, on balance, there is control by the appellant of the worker. This is clear from:

(a) the fact that the worker cannot work during the other shift,

(b) the fact that part of the arrangement is the dispatching services arranged by the appellant which compel the worker to comply with the rules imposed by the dispatching service.

Some customers paid by voucher but the worker did not have to wait until those vouchers were paid. There was no evidence that the worker ever hired anyone to replace him.

Cumulatively the factors pointed to an employment relationship.  As a result both the EI and CPP appeals were dismissed.