SB Towing Inc. v. R. – TCC: Roadside Assistance Workers were Employees

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SB Towing Inc. v. The Queen[1] (November 8, 2013) is a case involving a determination of whether a number of individuals were engaged in insurable employment/pensionable employment for the purposes of EI and CPP.  The facts are fairly straight forward:

[3]             SB Towing is a towing and roadside assistance company that services London, Ontario. The Appellant hired the Workers to drive roadside assistance vehicles (“RSA Vehicles”) for the purpose of providing general roadside assistance. The Workers performed services such as changing tires, delivering gas and boosting batteries. SB Towing operates 24 hours a day, seven days a week. Brenda Schrans is the president and sole shareholder of the Appellant.

[4]             Most of the Workers signed a written contract identified as the Independent Contractor Agreement or the Contractor Obligations (the “Agreements”). The Agreements indicated that the Workers were independent contractors who were responsible for paying their own taxes. The evidence shows that the Appellant did not deduct income taxes, EI premiums or CPP contributions from the Workers’ pay.

[5]             The Appellant owned or leased the RSA Vehicles used by the Workers. Some Workers enjoyed exclusive use of such a vehicle while others had to share an RSA Vehicle with a Worker from a previous shift. The operating expenses and insurance for the RSA Vehicles were paid by the Appellant.

[6]             At all relevant times, the Appellant was under contract (the “CAA Contracts”) with the Canadian Automobile Association (“CAA”) to provide roadside assistance to CAA members.

[7]             The CAA Contracts required the Appellant to, among other things:

(a)     be available to provide services to CAA members at all times;

(b)     keep a minimum number of RSA Vehicles on the road; and

(c)      maintain service standards, the most important of which was to assure arrival on the scene within 30 minutes of being informed of the need for roadside assistance.

[8]             The Appellant’s RSA Vehicles were equipped with an on-board CAA mobile computer system through which service calls were transmitted and accepted. CAA calls represented approximately 90% of all service calls made by the Workers, and substantially all (90% or more) of the Appellant’s and Workers’ revenue was derived from these calls.

[9]             CAA calls were dispatched directly to a truck’s CAA computer, according to a Worker’s proximity to the location of the client. When a call came to a Worker’s computer, the Worker generally had 10 minutes to indicate if he would accept or reject the call. The CAA’s policy is that the RSA Vehicle must arrive at the location of a client’s car within 30 minutes of that client calling the CAA for service. The CAA Contracts provided that the Workers had to give priority to CAA calls over any other calls.

[10]        If a Worker was out of his truck when a call came in on the CAA computer, it would be forwarded to his cell phone. If a Worker did not have a cell phone prior to his starting to work for the company, the Appellant would provide him with one and deduct the cost from his pay.

[11]        On average, approximately 10% of a Worker’s service calls were a combination of non-CAA calls, dispatched by the Appellant and requests for roadside assistance received by the Worker himself while driving around. In a few cases, Workers received calls on their cell phones from personal contacts, although the evidence is incomplete on this point.

[12]        The Workers earned a 30% commission on gross revenue on each service call they made. This included CAA calls, for which there were pre-established rates, as well as the “cash calls” for which the Appellant provided guideline rates. Most drivers did not earn more than $30,000 in any of the years in the relevant period.

[13]        The Workers were paid monthly, as decided by the Appellant. The Workers were required to sign their pay stubs to approve their pay and deductions for the month. The Workers did not receive any benefits or vacation time.

[14]        The Workers were responsible for any damage caused to their RSA Vehicle or to other vehicles, up to a maximum deductible of $2,500.

[15]        The CRA issued rulings in 2011 which found that six Workers were employees rather than independent contractors. Following this, the Minister assessed the Appellant for the 2008 to 2010 taxation years and found that the 39 Workers referred to earlier were employees.

[Footnotes omitted]

The court reviewed the positions of the parties and the relevant case law and concluded that on the evidence the individuals were engaged in insurable employment/pensionable employment, i.e., contracts of service:

[75]        Each of the parties marshalled a long list of cases, as is typical for these types of appeals. They submit that these cases involve appeals raising common employee versus independent contractor status issues and have facts similar to those in this appeal. Suffice it to say that the application of the Wiebe Door factors requires a determination of what the objective reality of the parties’ relationship is, which is largely a fact-finding exercise. None of the cited cases are determinative of this question.

[76]        On balance, the Wiebe Door factors favour a finding that all 39 of the Workers were employees of the Appellant. The objective reality of the situation is that the Appellant had significant control over the Workers. The Appellant provided the vehicles and maintained control over them, and effectively eliminated the Workers’ chance to affect their profit by controlling their work duties and priorities. When considered as a whole, the facts and evidence before the Court suggest that the Workers were not in business on their own account.

[77]        Accordingly, the Workers whom I found to have a common intent with the Appellant to enter into a contract for services were not performing their services as independent contractors. Their intention was not reflected in the objective reality of their working relationship with the Appellant and therefore cannot prevail. For these reasons, I would dismiss the appeals.

[1] 2013 TCC 358.