Niagara Falls Co-operative Taxi Owners Association v. Niagara Veteran Taxi

[1981] OLRB Rep. February 198

0688-79-R Niagara Falls Co-operative Taxi Owners Association, Applicant, v. Niagara Veteran Taxi, Respondent.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. A. Ronson and D. B. Archer.

DECISION OF THE BOARD; February 10, 1981

1. This is an application for certification.

2. By a decision in this matter dated September 18, 1979 (Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889) the Board found that the applicant Association had taken the procedural steps necessary to establish its status as a trade union. A final determination of trade union status pursuant to section 1(1) (n) of The Labour Relations Act, however, was not made by the Board in that decision. The Board had to be further satisfied that the organization was an organization of employees as stipulated in the definition of "union" in section l(l)(n) of the Act. The applicant organization maintained that the persons in question, taxi owner-operators, were dependent contractors within the meaning of section 1(1) (ga) of the Act and, therefore, employees for the purposes of the Act while the respondent argued that they were independent contractors.

3. In a brief decision dated August 20, 1980 the Board held that the owner-operators in question were dependent contractors.

4. In view of the membership strength of the applicant the Board then certified the applicant Association as the exclusive bargaining agent for the owner-operators in the bargaining unit.

5. The Board's reasons for finding that the owner-operators are dependent contractors are set out below.

6. The parties agreed that the following persons were not employees for the purposes of the Act: M. Chapman, T. Chapman, F. Fontaine, M. Hunter, P. Pasco and R. Walsh. The parties also agreed that the evidence of Louis Andrews, Peter Barnhart, Jim Cowan and Scott Gregg would be representative of the duties and responsibilities of themselves and all other owner-operators in the bargaining unit applied for. Counsel for the respondent acknowledged that if the Board were to determine that the representative persons were employees under the Act, it would follow that trade union status should attach to the applicant organization.

7. In a parallel proceeding the applicant filed a complaint under section 79 of the Act alleging that the respondent, Niagara Veteran Taxi (hereinafter referred to a "N.V.T."), had discharged Mr. William Manson, a taxi cab owner-operator, for his efforts in organizing other owner-operators involved in this application for certification. As a preliminary matter to that complaint the parties asked the Board to determine whether Manson was a dependent contractor within the meaning of section 1(1)(ga) of the Act. In Niagara Veteran Taxi, [1980] OLRB Rep. Mar. 337, the Board held that Manson was a dependent contractor. The evidence of the four persons examined for the purposes of this application for certification differs only slightly from the evidence the Board heard regarding the duties and responsibilities of Mr. M anson.

8. "Dependent contractor" and "employee" are defined by the Act as follows:

9. – (1) In this Act,

(ga) "dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehicles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

(gb) "employee" includes a dependent contractor;

To decide whether the four owner-operators examined are dependent contractors the Board must look to whether they perform work or services for N.V.T. for compensation or reward, whether they are in a position of economic dependence and whether they are under an obligation to perform duties for N.V.T. so that they are in a relationship with N.V.T. more closely resembling that of an employee than an independent contractor.

9. It is evident that the owner-operators perform services for N.V.T. They service N. V.T. charge account runs and other calls for taxi transportation which are radio dispatched to them by N.V.T. The further question, however, is whether they perform these services for compensation or reward within the meaning of section 1(1)(ga) of the Act. With charge account runs the owner-operators receive payment directly from N.V.T. N.V.T. in turn receives its payment from the customer carrying the charge account. (For a similar arrangement in a different context see the Board's decision in Abdo Contracting Company Ltd., [1977] OLRB Rep. April 197) Apart from the charge account runs, the owner-operators are compensated directly by the passenger rather than N.V.T.

10. Since the Board's decision in this matter dated August 20, 1980 to which the Board now supplies its reasons, the Supreme Court of Canada has issued a decision relating to the employee status of taxi cab drivers. The decision, Yellow Cab Ltd. v. Board of Industrial Relations and Alberta Union of Provincial Employees, 80 CLLC ¶ 14,066, (S.C.C.), considered the effect of this form of indirect compensation (that is, compensation flowing to the taxi driver from the passenger rather than from the taxi company) on the existence of an employer/employee relationship between the taxi company and driver. The Supreme Court of Canada overturned both the decision of the Alberta Board of Industrial Relations and the confirming decision of the Alberta Court of Appeal on the ground that the Board had erred in law by adopting common law principles defining "employee" which were at variance with the language of The Alberta Labour Act, 1973, S.A. c. 33. The Supreme Court concluded that the taxi drivers in question were not employees of the Yellow Cab Ltd. because they did not receive wages directly from the company.

11. The existence of an employer / employee relationship between the taxi company and drivers was a precondition to The Alberta Board of Industrial Relations dealing with the taxi drivers' unfair labour practice complaint. To determine whether such a relationship exist the Court focused on the definitions of "employer" and "employee" as well as the general scheme of the Act. The Alberta Labour Act, unlike The Labour Relations Act of Ontario defines both "employer" and "employee". "Employer" is defined in section 1(e)(iv) to mean, among other things,

. . . a person, corporation, partnership, or group of persons who . . . is responsible for the payment of wages to an employee.

"Employee" is defined in section 1(d) of The Alberta Labour Act as follows:

''employee'' means a person employed by an employer to do work or provide services of any nature who is in receipt of or entitled to wages...

In evaluating The Alberta Labour Act as a whole, the Supreme Court commented that, as revealed in section 35 of that Act, the scheme of the Act is based on wages flowing directly from an employer to an employee. At p. 12,328 the Court said,

In my opinion the scheme of the Act, which is repeatedly indicated in various sections referred to by the appellant, is predicated on the "wages" therein referred to being wages which flow directly from an employer to an employee. This is made manifest for example by s. 35 of the Act which provides:

35. (1) A period of employment for computation of wages earned shall not be longer that one calendar month or such other period as the Board may fix.

(2) Each employer shall pay to each employee within 10 day after the expiration of each period of employment established which the employee has been employed all wages earned by the employee within that period.

(3) Where the employment of an employee is terminated by the employer, all wages earned by the employee shall be paid to him by his employer upon the termination of the employment.

12. Focusing on these three factors, the scheme of The Alberta Labour Act, the definition of "employer" which includes the responsibility for paying wages to an employee and the definition of "employee" which stipulates the receipt of or entitlement to wages, the Supreme Court concluded that under The Alberta Labour Act wages had to be paid directly from the employer to the employee for an employer/employee relationship to exist. At p. 12,328 the Court said,

In my view this definition is also exhaustive and it confines the meaning of ''employee" for the purpose of the statute to persons who are ''in receipt of or entitled to wages". It appears to me that an employer and employee relationship can only exist where the employee is "in receipt of or entitled to wages", the payment of which is the responsibility of the employer.

It is pointed out on behalf of the respondents that there is no express provision in the statute requiring that wages and other remuneration within the meaning of this section must come directly from the employer but, as I have indicated, I adopt the view that when the Act is read as a whole this must have been the intention of the Legislature.

13. In the case before the Supreme Court of Canada the taxi drivers were paid by passengers. In these circumstances the Court concluded that because no wages flowed from the employer to the drivers, the relationship of employer/employee did not exist within the meaning of the statute.

14. The decision in Yellow Cab Ltd. is closely tied to the particular wording of The Alberta Labour Act. The relevant provisions of The Labour Relations Act of Ontario are fundamentally different.

15. "Employer" is not defined in The Labour Relations Act of Ontario. Unlike The Alberta Labour Act the Ontario Act does not suggest that a necessary element of being an employer within the meaning of the Act is the payment of wages directly from the employer to the employee. As well, again in contrast to The Alberta Labour Act, the Ontario Act does not state or suggest that to be an employee within the meaning of the Act, a person must be in receipt of wages directly from the employer.

16. A further critical distinction between The Alberta Labour Act and The Labour Relations Act of Ontario is that the Ontario Act, unlike Alberta's gives separate and distinct recognition to a hybrid person falling somewhere between the traditional employee and entrepreneur or independent contractor. When the Ontario Legislature amended the Act in 1975, (The Labour Relations Amendment Act, 1975, S.O. 1975, c. 37, s.l(1) it added a definition of "dependent contractor", section 1(1) (ga), and in its only definition of "employee" provided that a dependent contractor was an employee for the purposes of the Act, section 1(1) (gb).

17. In one of the early decisions following the amendments the Board commented on the unique characteristics of the dependent contractor and, for the purpose of identification, the importance of focusing on the nature of the business relationship rather than a contract of employment as would exist with the traditional employee. In Abdo Contracting Company Ltd., [1977] OLRB Rep. April 197 the Board said at pp. 202-203,

The question that must now be answered by the Board is, not whether a person falling within the shaded area on the economic spectrum is an employee or an independent contractor, but whether that person is a dependent contractor. This new point of departure does not mean that considerations formerly taken into account are now totally irrelevant. The statutory definition of dependent contractor clearly requires some reference to the employee-independent contractor distinction. A shift of emphasis has occurred, however, as this new definition recognizes that persons in an economic position closely analogous to that of the employee should also enjoy the benefits of collective bargaining. The determination of who is a dependent contractor is now a comparative exercise that requires reference to a much broader range of labour relations considerations.

This redefinition of the limits of The Labour Relations Act serves two purposes. First, it recognizes that, as a matter of fairness, persons in economic positions that are closely analogous should be given the same legislative treatment. A second purpose, and one no less important, is to protect existing collective bargaining rights from being eroded by arrangements that differ only in form, but not in substance, from the employment relationship. These two considerations provide the justification for the shift of emphasis.

The shift of emphasis is readily apparent from a reading of the definition of dependent contractor. Clearly a person need not be employ­ed under a contract of employment to be considered as a dependent contractor, and provision of tools, vehicles, equipment, and machinery is no longer a major consideration. Contractual form and the ownership of tools are no longer essential considerations. The emphasis, instead, is placed upon economic and business factors. Both the type of economic dependence that exists, and the kind of business relationship entered into, determine whether a person more closely resembles an employee than an independent contractor.

Economic dependence must be such that it puts the person in roughly the same economic position as an employee who must face the perils of the labour market.

This first requirement of a particular type of economic dependence is closely related to the second requirement of a particular kind of business relationship. In order for a person to be considered a dependent contractor, that person must not only be economically dependent upon another person, but also must be "under an obligation to perform duties for that person" roughly analogous to that of an employee. This reference in the statutory definition requires us to look beyond the factor of economic dependence to the form of the business relationship to determine if it is roughly analogous to that of employer and employee. Such an examination, however, need not result in the identification of a particular contractual obligation, since a business relationship may exist, and continue, in the absence of any particular contractual obligation. The Board, therefore, need not confine itself to this very narrow issue but may deal with the wider issue of the nature of the business relationship.

[emphasis added]

18. Taxi owner-operators are often a triangular relationship with the company they work for and the passengers they service. That the major source of their income happens to be paid to them directly by passengers rather than a taxi company does not itself alter the essential nature of the business relationship between the owner-operator and the taxi company.

19. Another kind of triangular relationship was fully analyzed by the Board in A. Cupido Haulage Limited [1980] OLRB Rep. May 679 where truck owner-operators were in a triangular relationship with a broker, A. Cupido Haulage Limited, and the quarry owners, Canada Crushed Stone. In this situation the owner-operators' compensation was paid by the broker. Notwithstanding the fact that they received their compensation from the broker, the Board held that the owner operators were economically dependent on Canada Crushed Stone.

20. The purpose of the dependent contractor amendments to the Act was, generally, to enable persons engage in collective bargaining who, despite numerous earmarks of independent contractors, are in essence dependent for their livelihood on the person or company for whom they perform services for compensation or reward. It would thwart the intention of the Legislature if such persons were denied dependent contractor status just because they receive their compensation directly from the client serviced rather than their employer. This is especially true when neither the scheme of the Act nor the definition of "dependent contractor" stipulates that compensation or reward must come directly from the employer.

21. Given the critical distinctions between The Alberta Labour Act and The Labour Relations Act of Ontario, the Board concludes that the Supreme Court of Canada's decision in Yellow Cab Ltd. does not preclude this Board from finding that the scheme of compensa­tion and reward provided for the owner-operators in this case falls within the definition of "dependent contractor" in section 1(1)(ga) of the Act.

22. For the reasons set out above the Board concludes that the compensation received by the owner-operators both from N.V.T. for charge account runs and from the passengers for other runs is "compensation or reward" within the meaning of section 1(1)(ga) of the Act.

23. We turn to the next consideration of economic dependence. To what extent are the owner-operators economically dependent on N.V.T. They each pay dues of $51.50 a week to Mr. William Peters who owns N.V.T. In return for these dues the owner-operators are entitled, within the rules established by N.V.T., to participate in the dispatch service provided by Mr. Peters. For the payment of dues the owner-operators are further provided with stationery, driver sheets, business cards and charge account books. The owner-operators at N.V.T. benefit substantially from the established relationship N.V.T. has with numerous business in Niagara Falls. In addition to the charge account runs, N.V.T. has direct telephone line from such places as the chain grocery stores, Zellers, the General Hospital and the Medical Arts Professional Building. With the direct telephone line a customer can pick up the phone and be linked directly to N.V.T. Such calls are then dispatched to the owner-operators. Addi­tionally N.V.T. has numerous taxi stands which are designated for Niagara Veteran taxis only.

24. When owner-operators are cut off from the dispatch service either for disciplinary reasons or because they have driven their full shift, they are still entitled to drive the streets looking for passengers. Notwithstanding this ability to attract some business through their own initiatives, the evidence of the four owner-operators who testified as to their duties and responsibilities satisfies the Board that they are economically dependent on N.V.T. Mr. Scott Gregg stated that ninety-five per cent of his work is dependent on the N.V.T. dispatch service. He said that it would be financial suicide to operate without the N.V.T. dispatch service.

25. Niagara Falls, Ontario attracts a substantial number of tourists in the summer months. Gregg generally drives in one of the zones which is not populated with tourists. His dependence on the dispatch service, therefore, does not fluctuate with the tourist season. Other owner-operators who testified, however, drive in what is known as "the centre" which is heavily populated with tourists in the summer months. For these owner-operators the evidence establishes that in the summer months they could probably make a living on their own picking up tourists in need of taxi services. Mr. Dixson A. Barnhart, for example, testified that from June through Labour Day, he could, with concerted effort, make a living without the dispatch service. He testified, however, that during the non-tourist season he wouldn't have a chance without the dispatch service. He emphasized the economic importance to him during that time of the regular charge account runs set up by N.V.T., Louis Andrews, another owner-operator, testified that in the tourist season fifty percent of his business comes from the tourists and fifty per cent is local, presumably coming to him through the dispatch service. As with Mr. Barnhart, he too emphasized the substantial amount of his work that comes from the charge accounts established by N.V.T.

26. Even if it were possible for an owner-operator working the tourist section of Niagara Falls to make a living during the summer months without the use of the dispatch service, the evidence readily establishes that this would not be possible on a year-round basis. Furthermore, it is only the limited number of owner-operators who regularly work the tourist district who would be able to survive in the summer months without the use of the dispatch service. There are many other owner-operators who do not benefit significantly from the summer tourist bonanza.

27. The Board concludes on the evidence before it that the owner-operators are economically dependent on Niagara Veteran Taxi for their livelihood. Although some owner-operators may do some minimal advertising on their own behalf, the evidence shows that initiatives of this sort do not significantly augment an owner-operator's income. While some owner-operators who regularly work the tourist area of Niagara Falls are less dependent on Niagara Veteran Taxi during the summer months than others, the Board is fully satisfied that even they on a year-round basis are economically dependent on the dispatch service for their livelihood. The fact that owner-operators are willing to pay $51.50 on a weekly basis in both the summer and the winter for the dispatch and other services and the fact that they originally purchased their relationship with N.V.T. with a payment of approximately $500.00 underscores the Board's conclusion that the owner-operators are dependent on N.V.T. for their economic well-being.

28. Are the owner-operators under an obligation to perform duties for N.V.T. in a way more closely resembling the relationship of an employee than an independent contractor? For this determination the amount of control exerted by N.V.T. over the work of the owner­ operators becomes particularly relevant.

29. There are certain aspects of the owner-operators' relationship with N.V.T. that resemble the situation typical of an independent contractor. N.V.T. does not make contributions on behalf of owner-operators for any health, life or accident insurance plans. Owner-operators are financially responsible for their own car insurance, license plates and repairs. N.V.T. makes no deductions for income tax, unemployment insurance benefits, Canada pension plan or workmen's compensation coverage. The owner-operators purchase their own radio meters, and roof signs. Furthermore if an owner-operator is sick it is not necessary for him to notify N.V.T. that he will not be working that day. Owner-operators can take vacations when they want and if they return from a vacation later than originally anticipated, it is not necessary to notify N.V.T. of the delay.

30. Notwithstanding these earmarks of an independent contractor, the evidence establishes that William Peters, the owner of Niagara Veteran Taxi, exerts such a high level of control over the owner-operators that they in fact more closely resemble employees than independent contractors. Owner-operators are subject to a sophisticated network of rules by which they must abide in their day to day work for N.V.T. Although many of these rules were established through consultation with the applicant Association and owner-operators, the evidence establishes that it was Mr. William Peters who ultimately decided upon the rules and who determines which ones shall be enforced. If owner-operators want to work the day shift during the school year they have to check in by 8:15 a.m. or they will be cut off from dispatching services until 2:00 p.m. Further if they work the day shift, they are not permitted to have access to the dispatch service after 9:00 p.m. While owner-operators can generally decide what shift they want to work, the evidence reveals that they cannot switch back and forth between shifts during any one week. They cannot, for example, work the day shift from Monday to Friday and then on Saturday work the night shift. Many of the rules established by Mr. Peters reflect the by-laws of the Niagara Regional Board of Commissioners of Police. Some, however, are personal to N.V.T. The public by-laws, for example, state that taxi drivers should be dressed neatly. Mr. Peters, however, has imposed additional requirements prohibiting owner-operators from wearing shorts and sandals in the summer months. One of the owner-operators, Mr. Barnhart, testified that the owner-operators were further prohibited from wearing dungaree, beards of hair below their collars. There are other rules prohibiting owner-operators from stealing jobs, refusing to take a call for which they have been dispatched, checking in too early or being discourteous to a customer. The rules are enforced by N.V.T. through the use of penalties ranging from fines to suspension (being cut off from dispatch services) to discharge. Each of the owner-operators testifying in this proceeding stated that he had been subject to such discipline.

31. The nature of the control Mr. Peters exerts over the owner-operators is reflected in two notices he posted, one on May 1, 1979 and the other on July 3, 1979:

NIAGARA VETERAN TAXI CO.

CORNER BRIDGE & SECOND

NIAGARA FALLS, ONTARIO

May 1, 1979

NOTICE: ALL OWNERS AND DRIVERS

THE PRACTICE OF CHECKING OUT ON JOBS THAT MAY NOT BE TO YOUR LIKING MUST STOP AT ONCE.

ALSO, CERTAIN DRIVERS HAVE AN ARRANGEMENT WITH BELLHOPS AND A PAYOLLA EXISTS FOR OUT OF TOWN TRIPS; OUR SWITCHBOARD WILL NOT CATER TO THESE DRIVERS FOR PERSONAL CALLS.

THIS NOTICE IS A FAIR WARNING TO ALL; YOU WILL BE DISMISSED IF THIS PRACTICE CONTINUES DRIVERS AND OWNERS.

"William Peters"

July 3, 1979

TO WHOM IT MAY CONCERN

Contrary to many rumors, this business is not selling out or the management quitting. However it is not going to operate with a divided company and a[n] association that thinks it is going to play the tune. For everyone's information the Niagara Veteran's Taxi has acquired all available taxi licenses (nine in all) and for those that may be interested a few are available with arrangements made by William Peters. To clear the air once and for all owners wishing to separate may do so and our co-operation will be given in matters of insurance etc. As of July 15 you are requested to drop your name in the gasoline chute indicating your desire to stay or separate. Those who have not indicated by that date will be considered no longer associated with the company.

"William Peters

Warnings of this nature reflect a permanent and continuing relationship controlled by a party closely resembling the typical employer in an employer/employee relationship.

32. Further evidence of the control exerted by Mr. Peters was given by Mr. Gregg. Mr. Gregg testified that he advertised his taxi-cabs for sale on the bulletin board in 1979 but that before anyone could buy it they had to have Mr. Peters' approval. He stated that in July 1979 two dispatchers wanted to buy his car but Mr. Peters prevented the sale because he needed dispatchers.

33. In addition to control, the use of drivers by owner-operators is also an important factor in evaluating the total character of the relationship to determine whether it more closely resembles the relationship of an employee than an independent contractor. (See, for example, the Board's decisions in Canada Crushed Stone, [1977] OLRB Rep. Dec. 806, Comfort Guard Services Ltd., [1978] OLRB Rep. Oct. 905 and Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083). In this case Mr. Andrews uses a driver for three months of the year.

34. In Canada Crushed Stone the Board stated that dependent contractor-employers are not dependent contractors within the meaning of section l(l)(ga) of the Act. In paragraph 23 of its decision the Board made the following comment:

Having decided that the line should be drawn to exclude dependent contractor-employers from the meaning of "dependent contractor" as defined in section l(l)(ga) of the Act, the Board must emphasize that its decision in this regard is intended to exclude only dependent contractors who are employers in substance as well as form. It is this type of dependent contractor who more closely resembles an independent contractor than an employee. A dependent contractor with the authority to hire, fire, discipline, and set the terms and conditions of employment in respect of others is not a dependent contractor entitled to the benefits and protections of The Labour Relations Act. If, however, it is found that a dependent contractor does not possess this type of authority, then, notwithstanding the fact that he may be the nominal employer of others, he may still be entitled to bargain collectively under The Labour Relations Act.

In this case the Board excluded from the definition of "dependent contractor" one person who owned and operated a company which had ten trucks and employed seven persons to operate the equipment. The owner hired his own employees, set their terms and conditions of employment and assigned work. In the same case the Board further excluded two other persons it determined were employers in form as well as substance. They too had authority to hire, fire, discipline and set terms and conditions of employment.

35. In Comfort Guard Services Ltd., supra, and Dominion Dairies Limited, supra, the Board gave further consideration to the status of persons who in the performance of their own work used the labour of others. In Comfort Guard Services the Board stated that the occasional use of a single helper to lighten the load of the person alleged to be a dependent contractor could not be fairly described as an entrepreneurial endeavour which would create a situation more closely resembling an independent contractor than an employee.

36. Similarly in Dominion Dairies Limited the Board drew a distinction between persons hired to lighten the load of the alleged dependent contractor and persons hired to increase their output. In that case, all of the contract drivers who delivered the respondent's dairy products employed the use of helpers on their routes. The Board stated at pp. 1091 and 1092,

The line between contractors whose activities are more closely analogous to those of a wage earner, so as to make them dependent contractors, and contractors who are sufficiently entrepreneurial as to be excluded from that definition is not easy to draw. It can only be drawn in the light of the facts of each particular case. In Canada Crushed Stone the Board found that a contractor who owned 10 trucks which were driven by seven employees in an aggregate material hauling business that grossed $250,000 per year was not, by virtue of the entrepreneurial nature of his business, a dependent contractor within the meaning of the Act.

In a more recent decision, Comfort Guard Services Ltd. (Board File No. 2007-77-R, as yet unreported, Oct. 6, 1978) the Board found that a heating equipment service contractor was not deprived of status as a dependent contractor merely because he sometimes made use of a helper on his service calls. In that case the Board determined that the use of a helper merely to lighten the serviceman's load was to be distinguished from the use of an employee hired on a regular basis to drive a second vehicle and make separate service calls, thereby substantially increasing the contractor's capacity for profit.

When the Board is faced with the question of the effect of the use of paid help by a contractor it must determine whether, in the light of all of the evidence, the person or persons used merely assist the contractor in the performance of his work or in fact perform work that is separate and beyond the work done by the contractor, so that the contractor may fairly be characterized as master of a business that profits in a substantial way from the labour of others.

In this case the Board is satisfied that the contractor-drivers, who make use of a single helper, whether occasionally or regularly, do not cease to be dependent contractors by virtue of that fact. The use of a young helper to lighten the load during the summer season, to shorten the hours worked on a Saturday or to eliminate the burden of stairs on a daily basis does not thrust the contractor-driver into an entrepreneurial undertaking that can be meaningfully described as deriving profit in any substantial way from the work of others. The contractor-drivers examined used helpers when they were employed as milkmen and represented for collective bargaining purposes by the applicant prior to 1970. At that time the Board had recognized that the use of a helper did not of itself deprive an individual on his status as an employee under the Act. (Automatic Fuels Limited, [1966] OLRB Rep. Apr. 22).

37. In this case each of the owner-operators examined owned as of the date of the application for certification only one taxi. Further as of the date of application none had a driver who would regularly operate his taxi after the owner-operator had completed his own shift. The Board, therefore, is not called upon in this case to determine what impact if any such an arrangement would have on the status of a person who in all other respect appears to be a dependent contractor.

38. The testimony reveals, however, that on an annual basis Louis Andrews takes a three-month vacation during which period he has a driver operate his taxi. Typically when an owner-operator uses a driver the driver gives back to the owner-operator a percentage of what he earns. Mr. Andrews testified that he does not care how much his driver works during his absence as long as he makes enough money to pay his weekly dues of $51.50 which must be paid by an owner-operator even when he is on vacation. Mr. Andrews testified that when he gets back from vacation he doesn't even check the daily sheets to certify whether he is actually being given the proper per cent of the driver's earnings. He emphasized that he doesn't care how much or little his driver works while he is away as long as he covers his dues.

39. The totality of the evidence reveals that an owner-operator cannot be forced to use any particular driver. Mr. Peters, however, may veto an owner-operator's choice of driver. Mr. Barnhart, for example, testified that at one point he was unable to put the driver he wanted on his car because he had been suspended and needed Mr. Peters' approval to drive again. On another occasion Mr. Peters would not allow Mr. Barnhart's son to drive the taxi until he shaved his beard.

40. On the totality of the evidence the Board concludes that while a driver is operating an owner-operator's taxi his employment is more closely controlled by Mr. Peters than by the owner-operator. This situation is readily distinguishable from the situation in Canada Crushed Stone, supra, where the person contending he was a dependent contractor not only owned his own company and employed ten drivers but also exercised the authority to hire, fire, discipline and set the terms and conditions of employment of the drivers. An owner ­operator like Mr. Andrews who uses a driver while he is on vacation does not exercise particular control over his day to day activities.

41. The Board is satisfied that Andrew's use of a driver while he is on vacation cannot fairly be described as an entrepreneurial understanding that would cause the Board to conclude that he more closely resembles an independent contractor than an employee. Not only does Mr. Peters exert substantial control over the driver, but also Mr. Andrews' use of the driver is designed to prevent Mr. Andrews from losing money while he is away through his continuing obligation to pay weekly dues. In this respect Mr. Andrews situation is similar to that of the helper in Dominion Dairies and readily distinguishable from the circumstances in Canada Crushed Stone.

42. Evidence contained in the Labour Relations Officer's report relating to the use of drivers by any other owner-operators suggest, at most, only an occasional use that would not approach an entrepreneurial relationship that would cause the Board to exclude them from the definition of "dependent contractor" in section l(l)(ga) of the Act.

43. On the totality of the evidence, the Board is further satisfied that the owner operators associated with N.V.T. are economically dependent on it and under an obligation to perform duties for it in a manner that more closely resembles the relationship of employees than independent contractors.

44. For the reasons set out above the Board finds that the owner-operators are dependent contractors within the meaning of section l(l)(ga) of the Act and, therefore, having regard to the provisions of section l(l)(gb), employees for the purposes of the Act.