CITATION: Sutherland v. Messengers International, 2018 ONSC 2703
DIVISIONAL COURT FILE NO.: 159/17 DATE: 20180427
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JAMES SUTHERLAND
Appellant
– and –
MESSENGERS INTERNATIONAL
Respondent
K. Karimjee and N. Qureshi, for the Appellant
K. Genest, for the Respondent
HEARD at Toronto: April 24, 2018
THORBURN J.
THE ISSUE
[1] The Appellant/Plaintiff appeals from the judgment of Deputy Justice Martial dismissing this action with costs payable by the Appellant to the Respondent.
[2] There are two issues on this appeal:
a. Did the Appellant abandon his job; and
b. Was he an employee such that he is entitled to damages for wrongful dismissal and loss of vacation pay.
[3] The standard of review on a question of law is correctness and the standard of review on a finding of fact is “palpable and overriding error”. (Housen v. Nikolaisen [2002] S.C.R. 235.)
THE APPELLANT’S DUTIES AND TERMS OF ENGAGEMENT
[4] In 2010 the Appellant Sutherland was engaged by Split Second Couriers, a predecessor company of the Respondent Messengers International. The written contract provided that he was an “independent contractor”.
[5] He never received vacation or holiday pay and did not make employment insurance contributions or take deductions for WSIB.
[6] He worked making deliveries on an as-needed basis.
[7] In 2011, the Appellant was assigned to do deliveries for Split Second’s client Nestle. The Respondent acquired Split Second and Nestle became the Respondent’s client.
[8] The Appellant was paid a daily rate by the Respondent. The amount was the same every day regardless of the number of deliveries and the amount was calculated according to a percentage commission earned on his daily deliveries.
[9] The Appellant owned and maintained his own delivery vehicle and paid for his own gasoline.
[10] The Respondent claims the Appellant had the right to make other deliveries.
[11] At the time he ceased his relationship with the Respondent, the Appellant was 64 years old and had been doing deliveries for the Respondent for over four years.
CIRCUMSTANCES OF END OF THE APPELLANT’S RELATIONSHIP WITH THE RESPONDENT
[12] On February 13, 2015, the Appellant failed to pick up packages on his delivery route. This was the third complaint about the Appellant failing to do deliveries for Nestle. Nestle’s manager told the Appellant he was “done” and that he should not return to work for Nestle. The Appellant left the Respondent’s premises prior to the end of the work day.
[13] The Respondent’s representative Anthony Pierri claimed he tried to reach the Appellant by telephone. After several attempts, he spoke with the Appellant. He testified that he told the Appellant to come in on Tuesday so that “we can discuss other options, options being either dedicated routes not for individual but for a route area or a rush order.”
[14] The Appellant disputed this version of events and claimed the Respondent also told him he was “done”.
[15] The Appellant did not come in on Tuesday as requested, and did not come in until February 24, one and one half weeks later.
POSITIONS OF THE PARTIES
[16] The Appellant takes the position that the trial judge failed to give appropriate weight to the overwhelming evidence in support of his assertion that his employment was terminated. He did not abandon his employment; rather, he was told both by Nestle and by the Respondent that he was “done”. There was therefore no point in discussing options. Moreover, although he came to the office several times over the next few months, the Respondent never said what other options might be available to him and never offered him alternative work. The Appellant claims that he was an employee as he worked full time for the Respondent and he is entitled to damages for wrongful termination of his employment and vacation pay.
[17] The Respondent claims the Appellant abandoned his job. Although Nestle no longer wanted the Appellant to do deliveries (as there had been three instances when deliveries were not made), the Respondent asked him to return on Tuesday to discuss other options with the Respondent. The Appellant left work in the middle of the day and did not return until eleven days later, at which point the Respondent considered that the Appellant had abandoned his work with the Respondent.
[18] The Appellant claims damages for wrongful termination of his employment and vacation pay. The Respondent claims the Appellant abandoned his contract and that he was an independent contractor and no employment or vacation pay is owed.
ANALYSIS AND CONCLUSION
[19] The Appellant testified but called no other witnesses. The Respondent called four witnesses.
[20] The trial judge stated that he preferred the Respondent’s evidence to that of the Appellant. He found that they corroborated one another’s stories.
Abandonment v. Termination
[21] The trial judge held that, “the plaintiff’s action in leaving the workplace without notifying the defendant prior to the end of the business day, and without completing his route were tantamount to the abandonment of his position. He did not act to clarify the status of his employment.”
[22] He noted that the Respondent’s route supervisor testified that, “He saw [the Appellant] one and one half weeks later on February 23rd or 24th. He was not fired. Drivers are disciplined. He believed that he quit. They did not hear from him for over a week.”
[23] The trial judge concluded that the Appellant abandoned his work with the Respondent.
[24] A resignation must be clear and unequivocal. The Appellant’s behaviour must objectively reflect an intention to resign. (Kieran v. Ingram Canada, 2004 4652 (OCA) at para. 27 and Bette v. IBM Canada Ltd, 2015 ONSC at para 57, aff’d 2016 ONSC 2496 (Div. Ct.).
[25] Where there is confusion or uncertainty over whether an employee abandoned his engagement, the onus is on the employer to clarify with the employee whether he or she quit. (Gebreselassie v. VCR Active Media Ltd., [2007] O.J. no. 4165 (OSC) at para. 42.)
[26] In McClelland v. King Coating Roofing Inc. 2016 Carswell 12017 (Zwicker D.J.) an employee had been absent from work on a number of occasions and received a text message by his foreman saying that he was done working with him. The employee’s wrongful dismissal action was dismissed because the text message from the foreman was not a letter of dismissal but rather notice that the foreman would no longer work with him. The employee was never formally notified that his employment had been terminated. The employee walked off the job because he was young and failed to consider asking for a transfer to another foreman or asking clarification of his employment status and was deemed to be the author of his own misfortune. He was found to have abandoned his employment.
[27] The trial judge’s finding that the Appellant abandoned his work was a finding of fact. He assessed whether there was a clear intention to resign and found that there was.
[28] While he cited no legal authority, the trial judge provided reasons for his finding that the Appellant abandoned his work. He noted that the Appellant left midday, he was asked by the Respondent to return on Tuesday to discuss other options, and he elected not to do so. The Appellant chose not to return to work for eleven days. For these reasons the trial judge found the Appellant clearly abandoned his work with the Respondent based on the Appellant’s behaviour.
[29] There was no error of law and there was no palpable and overriding error in his finding of fact that the Appellant abandoned his position with the Respondent. This ground of appeal is therefore dismissed.
Independent Contractor v. Employee
[30] The trial judge held that the Appellant “operated his own motor vehicle, paid for his own gas and maintenance. He was an independent contractor. He shared in the profit of the courier work and received a 60% share of the profit and filed his own tax returns as a self-employed individual.” He also noted that the Appellant “did not take direction daily” from the Respondent, he never received vacation or sick pay and no taxes, UIC or holiday pay were deducted.
[31] He preferred the evidence of the Respondent who testified that the Appellant was allowed to deliver packages for others if he chose.
[32] On the basis of the above evidence, the trial judge determined that the Appellant was an independent contractor and was not entitled to any money from the Respondent. The Respondent was awarded $3,642.50 in costs following the trial.
[33] This too was a finding of fact.
[34] There is no single test to determine whether a person is an employee or an independent contractor. 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. (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at para 47.)
[35] The above factors considered by the trial judge indicate the level of control that the Respondent had over the Appellant’s activities and whether he was performing services on his own account or on behalf of an employer.
[36] There is no palpable and overriding error in this conclusion of fact and this ground of appeal too is therefore dismissed.
[37] The Appeal is dismissed. The parties have agreed to file written submissions on the issue of costs.
___________________________ THORBURN J.
Date of Release: April 27, 2018
CITATION: Sutherland v. Messengers International, 2018 ONSC 2703
DIVISIONAL COURT FILE NO.: 159/17 DATE: 20180427
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JAMES SUTHERLAND Appellant
– and –
MESSENGERS INTERNATIONAL Respondent
REASONS FOR JUDGMENT
THORBURN J.
Date of Release: April 27, 2018