Y. L. J. Fricot

The union filed an unfair labour practice complaint alleging that the grievor, a truck driver who hauled raw forest products for the respondent, was terminated contrary to the Labour Relations Act.

As a preliminary issue, the Board had to determine whether the grievor was a 'dependent contractor' and thus an employee under the Act, or an independent contractor.

After a 24-day hearing, the majority of the Board applied the eleven-factor test from Algonquin Tavern and concluded that the grievor was an independent contractor.

The grievor owned his own truck, could hire substitute drivers, was free to reject loads, and was not subject to the same control and discipline as the respondent's employee drivers.

Consequently, the Board lacked jurisdiction and dismissed the complaint.

A concurring member agreed with the result regarding the grievor but disagreed with the majority's broad findings about the respondent's other contractors.

During a hearing to determine whether the grievor was an employee or an independent contractor, the Ontario Labour Relations Board made several preliminary evidentiary rulings.

The Board conditionally admitted photocopies of computer print-outs, requiring the respondent to produce the originals and the names of the individuals involved.

The Board also ordered the respondent to produce 1987 payroll documents and contracts for both employees and contractors pursuant to a summons duces tecum, finding them arguably relevant to the grievor's employment status.