2956-99-ES Direct Care Patient Transfer Inc., Applicant v. Penina Clarke, Michael Klein, Kim Clarence, Heather Morley, Chris Snell and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 34002222
BEFORE: Patrick Kelly, Vice‑Chair.
APPEARANCES: Yochonan Buksbaum and Scott MacInnes appearing on behalf of the applicant; Penina Clarke appearing on her own behalf; Stephen Mason appearing on behalf of the Ministry of Labour.
DECISION OF THE BOARD; September 6, 2000
This is an employer request, pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (“the Act”), for review of an Order to Pay No. 48761.
The Employment Standards Officer determined that the responding party employees were entitled to overtime pay, and that the employer had not paid overtime pay, in violation of section 24(1) of the Act.
The issue in this case is whether or not the responding party employees are taxi cab drivers, ambulance drivers, ambulance drivers’ helpers or first-aid attendants on an ambulance, and thus exempt pursuant to Ont. Regulation 325, R.R.O. 1990, Reg. 325 (as amended) (“Regulation 325”), from the overtime provisions under Part VI of the Act.
The evidence
Yochonan Buksbaum (“Buksbaum”), the president of the applicant, and Penina Clarke, an employee of the applicant at the time of the application, testified in this matter.
The agreed or uncontested relevant facts were as follows.
The applicant is in the unlicensed business of transporting non-emergency medical patients, mainly from one hospital to another, within the City of Toronto for the purpose of treatment and/or testing. The service also includes transportation in connection with the admission and discharge of patients to and from health facilities. The patients pay a base fee of $75.00 for this service, which is offered to the public at large, twenty-four hours a day, seven days a week.
The applicant’s marketing brochure states in part: “we provide a quality alternative to the unnecessary expense of a private ambulance type service, but with greater comfort and safety than taxis or similar standard transportation services”.
Patients are transported in vehicles which Buksbaum referred to as “non-emergency ambulances”, and these vehicles are identical to those used by the licensed City of Toronto ambulance service for non-emergency transport. The applicant’s vehicles are equipped with emergency lights and sirens, and accommodate stretchers, oxygen tanks and symptom relief drugs. They can also accommodate up to five persons, including the driver and the patient.
The vehicles are generally staffed by two level 1 paramedics. Level 1 paramedics are qualified in the administration of symptom relief drugs and the use of defibrillators. One of the paramedics drives the vehicle, while the other tends to the patient. They typically share these duties equally over the course of a shift of duty. Whether driving or tending to the patient, both paramedics work together in lifting the patient in and out of the vehicle.
Although it is not apparently required by law, the applicant, as a matter of policy, employs paramedics who meet substantially the same mandatory qualifications required of an “emergency medical attendant and paramedic” (as defined by section 6 of O. Reg. 501/97 passed pursuant to the Ambulance Act R.S.O. 1990, c. A.19 as amended (“the Ambulance Act”) employed in a licensed ambulance service. While there were some exceptions, most of the applicant’s employees had obtained an emergency medical care assistant certification, a designation that is required by the Ambulance Act of emergency medical attendants in a licensed ambulance service.
The applicant’s paramedics were paid a salary at one time, but that changed to an hourly wage sometime in June 1998. Clarke testified that she was paid $13.47 per hour at the time she left the applicant to work as a paramedic with the City of Toronto in April 2000. She testified that at the beginning of her employment with the applicant, the employees received a regular bi-weekly pay cheque equivalent to 83 hours of work notwithstanding the number of hours actually worked in a two week period, and that every two months a further cheque was issued for extra hours banked by the employees over that period in excess of 83 hours per pay period. The extra cheque was calculated on the employee’s regular hourly rate. Subsequently, from August 1999 to about January or February 2000, the extra cheque was more frequently issued, once a month, rather than once every two months. After January or February 2000, the employees were simply paid what they worked. At no time were the employees compensated for any overtime other than at regular hourly rates of pay.
The applicant’s paramedics have no fixed shifts, and apparently, no specific daily start or end times. According to Clarke, who gave the only evidence on this point, the employees learn the day prior when to report for work the following morning. At that time, the scheduled employee reports to the crew room, picks up paperwork indicating the pre-booked assignments, obtains a two-way radio, checks the assigned vehicle and its equipment, and takes to the road to start on a route corresponding to the pre-booked calls. The vehicle crew is re-routed as incoming calls are received during the day. Lunch periods are taken when the flow of calls and pre-booked assignments allows. The shift ends only when there are no more assignments. According to Clarke, demand for the applicant’s service might start as early as 6:00 a.m., and diminish or end by 10:00 p.m. The need for additional shifts is determined by the applicant’s dispatcher. Sometimes a crew is brought in mid-day to cover new calls.
Buksbaum’s uncontradicted testimony was that the patients transported by the applicant resemble exactly the type of patient transported by the non-emergency service provided by the City of Toronto’s licensed ambulance service, except in one regard. He agreed that the applicant’s customers are not necessarily persons who have been judged by a physician or a health care provider designated by a physician to be in an unstable medical condition. In fact, it was Clarke’s evidence that the applicant transported only medically stable patients.
The applicant’s customers are booked in advance about 50% of the time, while the remainder of the applicant’s business consists in spontaneous response to incoming calls for transport. Clarke testified that, although she was unaware of the extent, she was of the belief that the City of Toronto’s non-emergency transport service also engages to some degree in advanced booking of transport requests.
Decision
Section 24(1) of Part VI of the Act, which sets out the conditions under which, and the rate at which, overtime is payable, states:
(1) Except as otherwise provided in the regulations, where an employee works for an employer in excess of forty-four hours in any week, the employee shall be paid for each hour worked in excess of forty-four hours overtime pay at an amount not less than one and one-half times the regular rate of the employee.
Exemptions to the Act’s overtime provisions are contained in section 6 of Regulation 325, which provides as follows:
Part VI of the Act does not apply to a person employed,
(a) as a full-time firefighter as defined in the Fire Departments Act;
(b) whose only work is supervisory or managerial in character;
(c) as a fishing or hunting guide;
(d) in,
(i) landscape gardening,
(ii) mushroom growing,
(iii) the growing of flowers for the retail and wholesale trade,
(iv) the growing, transporting and laying of sod,
(v) the growing of trees and shrubs for the retail and wholesale trade,
(vi) the breeding and boarding of horses on a farm, or
(vii) the keeping of fur-bearing animals, as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;
(f) as a student to instruct or supervise children;
(g) as a student at a camp for children;
(h) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directly connected with the recreational program;
(i) as a superintendent, janitor or caretaker of a residential building and who resides in the building;
(j) as a taxi cab driver; or
(k) as an ambulance driver, ambulance driver's helper or first-aid attendant on an ambulance.
The applicant argues that its vehicles are taxi cabs as that term is defined in section 1(1) of Regulation 325:
(1) In this Regulation,
“taxi cab” means a vehicle, with seating accommodation for not more than nine persons exclusive of the driver, used for the carriage for hire of persons.
The applicant does not represent itself to the public as a taxi cab service. In fact, its marketing brochure distances the applicant from the taxi industry. The applicant’s vehicles not only contain “seating”, they can accommodate patients on stretchers. Moreover, the applicant provides more than mere “carriage for hire of persons”. It offers a service to a very specific market - the medically ill, most of whom are in a health facility of one kind or another, and who require to be transported by professional health care-givers.
The applicant does not utilize taxi cabs. It follows that the paramedics who operate the applicant’s vehicles are not taxi cab drivers.
The more difficult question is whether the applicant’s employees are ambulance drivers, ambulance driver’s helpers or first-aid attendants on an ambulance, and thereby exempt from the Act’s overtime provisions by virtue of paragraph (k) of section 6 of Regulation 325.
The Ministry of Labour (“the Ministry”) contended that the case turns on whether the applicant’s vehicles are ambulances. In that regard, the Ministry took the position that “ambulance”, as that term is used in the Act, must be read in reference to the Ambulance Act definition. Section 1 of the Ambulance Act defines “ambulance” as follows:
“ambulance” means a conveyance used or intended to be used for the transportation of persons who,
(a) have suffered a trauma or an acute onset of illness either of which could endanger their life, limb or function, or
(b) have been judged by a physician or a health care provider designated by a physician to be in an unstable medical condition and to require, while being transported, the care of a physician, nurse, other health care provider, emergency medical attendant or paramedic, and the use of a stretcher.
It was common ground that the applicant’s vehicles were neither used nor intended to be used for the transportation of persons described in paragraph (a) of the above-noted definition. It was further conceded by the applicant (noted earlier in this decision) that inasmuch as paragraph (b) is concerned, some, but not all of the persons transported by the applicant have been judged by a physician or a health care provider designated by a physician to be in an unstable medical condition. The witness Clarke testified that all the patients were in a stable medical condition. The result, according to the Ministry, is that the applicant’s vehicles do not meet the definition of ambulance under the Ambulance Act, and, consequently, the exemption in section 6 of the Regulation 325 does not apply.
Counsel for the Ministry submitted that it made sense to apply the definition of ambulance in the Ambulance Act to the references to “ambulance” in section 6 of Regulation 325. He reasoned that the Ambulance Act applies to a service whose emergency response work is unpredictable and largely incapable of being scheduled in advance. That makes the application of statutory overtime provisions impractical. He argued that, on the other hand, exclusively non-emergency response work, such as that engaged in by the applicant, is conducive to advanced scheduling. Therefore, he concluded, given that the applicant is not an ambulance service governed by the Ambulance Act, and given the more predictable nature of the applicant’s non-emergency work and its scheduling, it should be subjected to the overtime provisions of the Act. Finally, he made reference to the Interpretation Act, and urged me to consider that statute’s requirement to give remedial legislation, such as the Act, broad and liberal interpretation in order to achieve the purpose and objectives of such legislation. Thus the exemptions to the application of the Act, such as section 6 of Regulation 325 should be construed narrowly in order to give the Act’s mandatory overtime provisions optimal application across workplaces to which the Act applies.
I am of the view that the application of the Ambulance Act to the applicant’s operation is not determinative of the issue in this matter. Section 6 of Regulation 325 makes no reference to licensed or otherwise regulated ambulance services, or for that matter, licensed taxi cabs. There is no mention in paragraph (k) of section 6 to the Ambulance Act. If there had been an intention to restrict the meaning of “ambulance” in paragraph (k) of section 6, a reference to the Ambulance Act would have been a simple means of demonstrating that intent. Interestingly enough, the framers of Regulation 325 qualified the term “firefighter” in paragraph (a) of section 6 by adding the words “as defined in the Fire Departments Act”. In the absence of any such qualifying words in paragraph (k), or evidence concerning the regulation of the ambulance industry in Ontario, I cannot conclude that the references to “ambulance” in section 6 were intended to be as narrowly construed as urged by counsel for the Ministry.
Based on the documents and oral evidence tendered by the applicant and mainly uncontested by the Ministry, the applicant’s non-emergency service is remarkably similar in terms of character, equipment and staffing to that of the City of Toronto’s licensed non-emergency ambulance service. The differences between them are differences of degree. Counsel for the Ministry argued that although there may be similarities between the City of Toronto’s ambulance employees and the applicant,’ employees, it would be fallacious to conclude that they are both employed by ambulance services. He also stated that the application of the Act to the City of Toronto’s ambulance service employees is not relevant and not in issue in this matter, although he did not go so far as to say that the exemption in section 6 of Regulation 325 did not apply to them.
The evidence in this case concerning the scheduling of the applicant’s employees did not support counsel for the Ministry’s contention that non-emergency response work was capable of being relatively easily scheduled. The uncontested evidence by Clarke was that the start of a shift is only determined the day prior, and that the shift ends when the assigned calls are completed. The timing of the paramedics’ meal periods is completely haphazard. Moreover, according to Buksbaum, the applicant’s daily business consists evenly of pre-booked calls and those calls which arise spontaneously throughout the day. Clarke confirmed that the typical shift involved adjustment of the crew’s route to accommodate the new calls.
There is a rather high degree of unpredictability connected with the applicant’s business and with the working hours, shifts and schedules of its employees. If, as the Ministry contends, this kind of unpredictability is at the core of the rationale for the exemption in paragraph (k) of section 6 of Regulation 325, then I see no reason not to conclude that the exemption applies in this case. The applicant’s vehicles are utilized to transport the infirm who, during the period of time that they are being transported, require paramedical supervision and the use of a stretcher. The applicant’s employees operate the vehicles and provide the paramedical supervision. For all these reasons I therefore conclude that the responding party employees were, at the time of the Officer’s determination, ambulance drivers and ambulance drivers’ helpers within the meaning of Regulation 325.
In the result, it is unnecessary to deal with the submissions of the parties concerning statutory deductions from the wages paid by the applicant in trust to the Director of Employment Standards.
DISPOSITION
- The Board makes the following orders and directions:
(i) The application for review is allowed;
(ii) Order to Pay No. 48761 is hereby rescinded;
(iii) The wages paid to the “Director in trust” as well as the administration fee in relation to this matter plus interest, if any has accrued, are to be disbursed as follows:
To be returned to the applicant $2653.68
Total amount held by the Director $2653.68
“Patrick Kelly”
for the Board