2918-97-M City Cab, ABC Taxi (Brockville) and Safedrive Inc., Applicants v. Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688, Ontario Taxi Union, Responding Party.

BEFORE: Pamela A. Chapman, Vice-Chair.

DECISION OF THE BOARD; July 12, 2001

1This is an application pursuant to section 114(2) of the Labour Relations Act, 1995 (“the Act”) referring a question concerning employee status to the Board.

2By decision dated September 15, 1999, the Board rejected the request of the union that the application be dismissed without a hearing, after hearing preliminary submissions from both parties on that issue. A hearing was then reconvened, at which the employer called certain evidence concerning its position on the status of the members of the bargaining unit, and the union had an opportunity to cross-examine. The union declined to call any evidence, and the employer made final argument. At the conclusion of that portion of the hearing, the Board ruled that the application should be dismissed without further enquiry by the Board, as the evidence called by the employer did not establish that the persons in the bargaining unit were independent contractors and not employees within the meaning of the Act. My reasons for this conclusion follow.

THE FACTS

3The responding party (“the union”) was certified to represent taxicab drivers employed by the applicant (“the company”, “the employer” or “City Cab”) on March 6, 1987. Following certification, the parties entered into a collective agreement, which has been renewed and renegotiated several times. The agreement which was in place at the time that this application was commenced contained the following recognition clause:

Article 3: Union Recognition

3:01 The Company hereby recognizes the union as the sole and exclusive bargaining agent for all their full-time and part-time employees save and except supervisors and those persons above the rank of supervisors, dispatchers and independent contractors.

Clarity Note: For the purposes of this agreement, independent contractors are persons who own one vehicle or sticker but do not operate the taxicab.

3:02 For the purposes of this agreement, employees shall be deemed employees pursuant to the Ontario Labour Relations Act only and shall not be considered employees pursuant to other Provincial or Federal Departments unless otherwise specified.

Should any changes occur in Provincial or Federal Laws other than the Ontario Labour Relations Act, this agreement shall automatically be amended to conform with said law.

4In its application regarding employee status, the employer takes the position that all of the taxicab drivers who drive for City Cab are independent contractors and are therefore not employees within the meaning of the Act. There were twenty-four (24) drivers at the time the application commenced, and if none of them are employees, then there would be no employees in the bargaining unit for which the union holds bargaining rights.

5This application is not based on any claim of a significant change in the duties and responsibilities of the drivers since they were certified in 1987. Indeed, most of the facts which are pleaded by the applicant in support of its position that drivers are not employees relate to arrangements which have been in place between City Cab and the drivers since long before certification, and to the regulatory regime which is admittedly unchanged.

6In its application, the applicant asserts that it never agreed that the drivers were employees under the Act. When it filed its response to the application for certification, the employer asserted that there were no employees in the bargaining unit proposed by the union. After consulting with counsel and during discussions with a Labour Relations Officer before the start of the certification hearing, however, the employer modified its position and agreed to the bargaining unit description set out below and to a list of employees. The following bargaining unit description was therefore contained in the decision of the Board granting certification:

all employees of the ABC Taxi (Brockville) Ltd. and Safedrive Inc. carrying on business as City Cab in Brockville, save and except supervisors, persons above the rank of supervisor, office and dispatch staff.

7As there was agreement on the employee list and on the bargaining unit, and neither party registered any challenges to the status of the persons on the list, the union was certified without a hearing. In these circumstances, the Board was not required to, and therefore did not consider the employee status of the drivers.

8One of the owners of the company explained that the present referral was filed because of problems City Cab had been having in collecting dues from the drivers in order to remit them to the union. He asserted that a number of drivers have taken the position that they are not employees, and have therefore refused to cooperate with the employer when it seeks to collect the union dues required under the terms of the collective agreement. He also made reference to an application for termination filed in November 1994 as evidence that the drivers were claiming not to be employees. That application was dismissed by the Board as untimely, and no application for termination was filed in the open period prior to the expiry of the most recent collective agreement.

9The collective agreement which was filed with the Board had a three year term beginning on November 29, 1994. Notice to bargain was given by the union in September 1997, but the parties had not yet met in bargaining at the time this application was filed on November 6, 1997.

10The applicant filed a detailed statement of facts relating to the duties and responsibilities of the drivers, and explaining their relationship to City Cab and to the licensing body, and evidence was also given by one of the owners of the company, Mohan Gill.

11The entity called City Cab is actually made up of two separate corporations, ABC Taxi and Safedrive Inc., which in 1980 amalgamated their dispatching services into a single service under the name of City Cab. The two companies are each licensed as brokers, and they each own licence plates, but they run their cabs under the City Cab roof sign and have a single phone number to advertise their central dispatch services. The owners of ABC and Safedrive jointly own City Cab.

12In Brockville the Police Services Board has jurisdiction over the granting of taxi licences, administration of the taxi by-laws and setting the meter rates. They also establish the maximum hours of work, which are presently set at twelve per day.

13ABC and Safedrive each own 14 taxi plates, which must be in use according to their terms. When a new driver seeks to make use of a plate he must reach an agreement with one of the companies, which then advises the Police Services Board that the driver will be working for them and asks that one of their plates be affixed to the car he will be driving. In order to obtain a driver’s licence, the driver must have a “Certificate of Employment” completed by a broker which confirms that upon successfully obtaining the licence the driver will be employed by one of ABC or Safedrive.

14Drivers must then contract with City Cab for the provision of a taxi licence and of dispatching services, for which they pay bi-weekly. They must purchase or lease their own vehicles, which must be outfitted with a roof sign, car radio and meter according to the by-law and the company’s requirements. Some drivers own their own cabs; others are “commissioned” drivers who rent a cab from another owner. In the latter case the service fee paid to the company is paid by the owner rather than the driver. If a driver ceases to drive for a particular owner, the collective agreement gives him priority for the opportunity to drive another car contracted with the brokerage.

15There are six cab owners who retain the services of commissioned drivers, including the two owners of ABC and Safedrive, who control seven cabs between them. The other four owners own and lease six cabs; two are excluded from the bargaining unit because they own more than one cab; the other two are single cab owner/drivers within the bargaining unit who also lease out their cabs for certain shifts. Ten further single cabs are driven by owner/drivers who do not use commissioned drivers (but four of those drivers also drive as commissioned drivers for other owners).

16The company has established two twelve hour shifts per day, and limits the number of cabs which may operate during each shift. The collective agreement further provides for a five day work week. Within these limits drivers set their own work schedules, and the company posts a schedule one week in advance. Drivers can take off as much time as they want, but if they want to maintain their lease of a plate they must continue to pay dispatch fees, other than during the two week vacation period established by the collective agreement, or when they are ill or a vehicle is broken.

17The company also has established working rules, the violation of which may lead to suspension from the dispatch service or even the termination of the arrangement with the brokerage. A letter announcing the termination of a drivers’ contract with Safedrive Inc. for abuse of the dispatch system and failure to pay the required stand rent was entered into evidence. The letter directs the driver to turn over the taxi plate and roof sign to the Brockville police within a week. This termination was grieved by the union as a dismissal without cause and the driver was reinstated by order of an arbitrator. The company also terminated the services of several drivers at the time of the union organizing campaign, and they were reinstated as a result of the settlement of an unfair labour practice complaint.

18The company operates a charge system which drivers are required to use to collect fares from persons with company issued “chits”. They are given company business cards to use as receipts for passengers.

19It is undisputed that the drivers collect and remit GST on fares, do not pay Employment Insurance, Canada Pension Plan or WSIB premiums and identify themselves as self-employed on their tax returns. A dispute with Revenue Canada in 1982 over the obligation of City Cab to remit unemployment insurance premiums on behalf of drivers was resolved in the company’s favour, with the Federal Court of Appeal confirming that the drivers were self-employed. Similarly, the company has not been required to enforce garnishment orders as the drivers do not receive wages.

THE DECISION

20In its decision dated September 15, 1999 the Board made the following statements concerning the existence of a prima facie case in this matter:

The union argued strenuously that the material facts pleaded by the employer do not make out a prima facie case and that the application should therefore be dismissed pursuant to Rule 24 of the Board’s Rules of Procedure. While the facts outlined concerning the nature of the employer’s operations and the duties and responsibilities of drivers do appear analogous to those considered in numerous earlier decisions concerning the dependent contractor status of taxi drivers, inquiries under section 114(2) are essentially fact-based, and it is therefore difficult to conclude with any certainty that the employer could not make out a case for the declaration it is seeking, no matter how the evidence went in.

21At the hearing in this matter, the employer had a full opportunity to call any evidence upon which it intended to rely to establish that the drivers at City Cab are not employees within the meaning of the Act. That evidence is reviewed above in some detail and will be discussed below.

22Section 1(1) of the Act provides the following definitions of “dependent contractor” and “employee”:

1. (1) In this Act,

"dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor 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;

"employee" includes a dependent contractor;

23In a long line of cases, beginning in 1979 and continuing to the present date, the Board has invariably found taxi drivers, even if they own their cab and even if they sometimes hire replacement drivers, to be dependent contractors and therefore employees within the meaning of the Act: Blue Line Taxi Co. Limited, [1979] OLRB Rep. Nov. 1056; Niagara Veteran Taxi, [1980] OLRB Rep. Mar. 337; Niagara Veteran Taxi, [1981] OLRB Rep. Feb. 198; Windsor Airline Limousine Services Limited, [1981] OLRB Rep. Mar. 398; Hamilton Yellow Cab Company Limited, [1987] OLRB Rep. Nov. 1373, affirmed [1990] OLRB Rep. Nov. 1199 (Ont. Div. Ct.); Airline Limousine, [1988] OLRB Rep. Mar.225; Diamond Taxicab Association (Toronto) Limited, [1992] OLRB Rep. Nov. 1143. A similar approach has been taken by the Saskatchewan Labour Relations Board in United Cabs Limited and Retail Wholesale Canada (1996), 34 C.L.R.B.R. (2d) 196.

24In these earlier decisions cited by the parties, the Board has had the opportunity to consider the employee status of taxi drivers employed with other companies in the province, and has therefore considered the significance of various of the elements of the relationship between the company and the drivers, and the nature of their duties, relied upon by the employer here.

25First, it is clear from the cases that decisions about employment status made by other tribunals or agencies in different contexts are not determinative of the question of status pursuant to the Act, which contains a particular definition of dependent contractor which departs from the common-law approach to defining contractors, and may differ as well from other statutory provisions. This approach appears to have been acknowledged by the present parties who included the following clarity note in the recognition clause in the collective agreement:

3:02 For the purposes of this agreement, employees shall be deemed employees pursuant to the Ontario Labour Relations Act only and shall not be considered employees pursuant to other Provincial or Federal Departments unless otherwise specified.

26Similarly, it is not relevant that the taxi drivers structure their own affairs to take advantage of the determination by various other government agencies that they are not employees. Previous decisions of the Board have noted that taxi drivers commonly invoke self-employed status in other aspects of their affairs, such as taxation and workers’ compensation.

27The employer in the present case nonetheless argued that there are facts relevant to the status of the drivers in Brockville which distinguish them from those considered in these earlier cases, having regard particularly to the fact that Brockville is a smaller city than the centres in which the drivers examined in past decisions were operating. The employer also pointed to differences in the regulatory framework in Brockville which it claimed should point to an opposite result. I will review those main arguments in the context of the earlier caselaw.

28In several of the earlier cases, the taxi brokerages found to be the employer of drivers operating as dependent contractors did not own taxi plates, and therefore exercised little or no control over drivers’ access to the business. In Diamond Taxicab (1992), for example, the taxi brokerage owned no plates, which were instead controlled by drivers or other owners of plates described as “associates” and eventually found to be related employers (see Diamond Taxicab Association (Toronto) Limited, [1995] OLRB Rep. June 753, affirmed [1996] OLRB Rep. Sept/Oct 902 (Ont. Div. Ct.)).

29In that latter decision, the Board analyzed “the diffusion between the brokers and the associates of the economic elements normally associated with the employer side of the bargaining table”, concluding that ”the associates as a group provide essential components without which the brokers could not carry on business”, including the ownership of plates, which brokers in Toronto were not legally permitted to own (at paragraphs 72 and 73). In the present case, those economic elements are concentrated in City Cab, which not only operates the only dispatch system, but also owns the plates. Furthermore, while City Cab itself owns no cabs, the two owners of the business own seven out of the 23 cabs presently operating in the business, which they retain commissioned drivers to operate.

30In the present case, the employer also exercises significant control over drivers’ ability to enter the business because of the requirement of the Police Services Board that an applicant for a taxi drivers’ license have the signature of a broker confirming that he is “employed”. This is to be contrasted to the situation in Diamond Taxicab (1992), where the Board noted that:

Diamond does not in any way assist drivers in obtaining a taxi [driver’s] license, either by sponsoring drivers, giving them financial assistance, or by co-signing applications of drivers. Further, in Toronto, drivers need no approval from an owner or Diamond to obtain a license to drive a taxicab, nor is Diamond required to complete any forms prior to a driver being able to obtain a taxi license.

31The services which drivers in Brockville are required to obtain through the employer are also more extensive than those provided by some other dispatch services which have been considered by the Board. In Diamond Taxicab (1992), for example, taxi owners or leaseholders who enter into a service contract with Diamond gained access to the dispatch service and to company charge accounts, but were not required to utilize either. And perhaps most importantly, there was no requirement that drivers operating in the Toronto area contract with a dispatch service at all, permitting drivers to operate as “independents”. In the Diamond Taxicab (1992) case, there was testimony that as many as 600 drivers were operating without being associated with any of the brokers operating in the area. In Brockville, however, drivers are not permitted to work unless they are contracted to one of the companies and operating under its roof sign. They must book onto the dispatch system at the beginning of each shift, and keep dispatch advised of their whereabouts and of any pick up on the street, and they are required to accept company charges.

32Such control over access to the business would in my view be sufficient in and of itself to establish that the drivers in Brockville are dependent upon City Cab for their employment in the way contemplated by the definition of dependent contractor contained in the Act. But the evidence also established that City Cab exercises an important form of control over the actions of the drivers through the enforcement of company rules, which includes the threat of suspension from the dispatch service and ultimately a termination of a driver’s contract to use a plate and therefore maintain access to the business. Mohan Gill asserted in evidence that the company’s rules were simply a restatement of the conditions imposed on drivers by the by-law, but this claim is not supported by a comparison of the two documents. And it was clear from the evidence that it is the company, not the Police Services Board, that enforces its rules through the power it asserts over drivers as a result of its control of the plates and the dispatch system.

33In all the circumstances of this case it is clear that the taxi drivers operating under the City Cab banner are persons “performing work or services for another person for compensation or reward on such terms and conditions that the dependent contractor 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” within the meaning of dependent contractor in section 1(1) of the Act. As an employee is defined as including a dependent contractor, the persons in dispute (which group does not include the multi-cab owners, who are excluded by the terms of the collective agreement and the agreement of the parties) are therefore employees and there is no basis for excluding them from the operation of the Act or from the bargaining unit.

DISPOSITION

34For these reasons, the application under section 114(2) of the Act was dismissed at the last day of hearing.

“Pamela A. Chapman”

for the Board