Date: 20020717
Docket: A-378-01
Neutral citation: 2002 FCA 294
CORAM: ISAAC J.A.
BETWEEN:
YELLOW CAB COMPANY LTD.
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at Vancouver, British Columbia, on April 25, 2002.
Judgment delivered at Ottawa, Ontario, on July 17, 2002.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: ISAAC J.A.
DISSENTING REASONS BY: MALONE J.A.
Date: 20020717
Docket: A-378-01
Neutral citation: 2002 FCA 294
CORAM: ISAAC J.A.
BETWEEN:
YELLOW CAB COMPANY LTD.
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
[1] This is an application for judicial review of the judgment of Hamlyn J. of the Tax Court of Canada, [2001] T.C.J. No. 338 relating to the Employment Insurance Act ("Act") and the Employment Insurance Regulations ("Regulations").
[2] Yellow Cab Company Ltd. ("Yellow Cab") had been assessed for employment insurance premiums for the 1996, 1997 and 1998 taxation years in respect of the activities of Mr. Rajinder Matharu ("owner-operator") in driving a taxicab pursuant to an agreement with Yellow Cab on the grounds that Matharu was an employee of Yellow Cab as defined by the Act and Regulations.
[3] Yellow Cab was also assessed for employment insurance premiums for the 1997 and 1998 taxation years in respect similar activities of eight individuals identified on the lease agreements as Abdiquini Abdille, Baldev Atwal, Davinder Brar, Manjinder Dhaliwal, Kiranjit Malhi, Hassan Osman Haji Ali, Amale Salah and Kewal S. Sond ("lease-operators"). The assessment of the lease-operators was on the same grounds as Mr. Matharu, that they were taxidrivers, employed by Yellow Cab within the meaning of the Regulations.
[4] On appeal, Hamlyn J. of the Tax Court found that Matharu and the lease-operators were employees of Yellow Cab and that Yellow Cab was obligated to submit Employment Insurance premiums in respect of their employment. Judge Hamlyn also found that their income should be calculated on a net income basis for the purposes of Employment Insurance rather than on a gross income basis.
[5] The main issue in this application is whether the aforementioned persons were in insurable employment as defined by the Act and Regulations.
FACTS
[6] Yellow Cab is held out to be a taxicab company to the Vancouver market and it organizes its business in the following way. Motor carrier licenses for all 198 taxicabs are issued to Yellow Cab. Yellow Cab is the registered owner of all such vehicles for various purposes including fleet insurance. Yellow Cab owns the "rights" to operate 10 taxicabs, while the rights to operate the remaining 188 vehicles are owned by its shareholders. These operating rights are divided into three categories: whole cab, day half or night half.
[7] Owners who do not wish to operate their taxicabs but still wish to maintain their rights may lease their interests to lease-operators. Therefore, there are two categories of operators: owner-operators and lease-operators. Owner-operators and lease-operators may hire drivers, subject to Yellow Cab's approval, to actually drive the taxicabs.
[8] Matharu was an owner-operator. A purchase agreement and an operating agreement govern Yellow Cab's relationship with Matharu. The parties to the purchase agreement include Ross M. Mills, the vendor of the rights in the motor vehicle, Matharu, the purchaser, and Yellow Cab. Under that agreement, the vendor agreed to sell to Matharu the following rights and assets relating to the day half of taxicab no. 102
(a) 15 Class B shares in the capital of Yellow Cab ... together with the number of Class A shares in the capital of Yellow Cab ... to which the Purchaser is entitled pursuant to the Articles of Yellow Cab;
(b) The Vendor's rights to the licence issued by the City of Vancouver to Yellow Cab ...
(c) The Vendor's rights to the permit issued by the Motor Carrier Branch of the Province of British Columbia to Yellow Cab;
(d) The Vendor's rights to [the] licence ... issued by the Department of Transport (Canada), recorded to Yellow Cab, granting the right to pick up passengers at the Vancouver International Airport ...
(e) The Vendor's interest in the motor vehicle and equipment ...
The Court was not directed to any evidence as to who owned the other one-half interest in the taxicab.
[9] This sale to Matharu was subject to Yellow Cab's approval. In consideration of Yellow Cab's approval, Matharu granted Yellow Cab a one-year option to purchase his rights in taxicab no. 102, such option to be exercisable if the taxicab were not being operated in accordance with its rules and regulations. In addition to the purchase price, Matharu bore all operating and maintenance expenses. Under a separate operating agreement, Yellow Cab can penalize Matharu for a breach of company procedures.
[10] During the time Yellow Cab was assessed to make Employment Insurance remittances regarding Matharu, Matharu paid drivers to drive his taxicab and also remitted income tax, Canadian Pension Plan ("CPP") and Employment Insurance premiums on behalf of the drivers. Each driver was issued a T4 (receipt showing amounts earned provided by an employer to an employee for tax purposes) identifying Matharu as the employer.
[11] Yellow Cab was assessed for unremitted employment insurance premiums for the 1996, 1997 and 1998 taxation years in respect of services performed by Matharu. During the relevant period, Matharu owned all the rights to operate his taxicab, including the right to use the licence issued by the City of Vancouver in respect of that vehicle. Before Hamlyn J., the parties agreed that the assessments related only to those fares collected by Matharu in his capacity as a driver.
[12] The contracts governing the eight lease-operators are found in lease agreements. Mr. Amrik Dhillon, the owner of the rights to operate the taxicabs and a shareholder of Yellow Cab, is the lessor. Yellow Cab is also a party to the lease agreements. The form and content of each lease agreement is essentially the same, differing only in the identity of the owner, the identity of the operator, the taxicab number, the term of the lease and the operating fee. These operating rights are leased to the eight lease-operators who hold taxicab permits issued by Yellow Cab, which itself holds licenses issued by the City of Vancouver.
[13] The lease agreement provides that the lease-operators shall be entitled to revenues received from the operation of the taxicab and Yellow Cab shall be entitled to fixed monthly fees from the lease-operators. The lease-operators are responsible for fuel; repairs; licences; inspection certificates; and administration, bookkeeping and operating fees. The lease-operators are obligated to comply with all orders or directions from Yellow Cab with respect to dispatch services and the general operation of the taxicabs; the lease-operators are obligated to diligently operate the taxicab on a continuous basis; and the lease-operators are obligated to use Yellow Cab's bookkeeping and fuel provision services. Yellow Cab can order the suspension or discharge of drivers in breach of any rules or regulations of Yellow Cab or of any municipality or other regulatory body. The taxicab may only be driven by the lease-operator or by a driver approved by Yellow Cab.
[14] The lease agreement also provides that either the "owner" (Dhillon) or the lease-operator shall agree before commencement of the term of the lease agreement whether the motor vehicle that will be used as a taxicab is to be provided by the owner or the lease-operator.
[15] During the time Yellow Cab was assessed to make Employment Insurance remittances regarding the lease-operators, the lease-operators paid drivers to drive the applicable taxicab and also remitted income tax, Canadian Pension Plan ("CPP") and Employment Insurance premiums on behalf of the drivers. Each driver was issued a T4 identifying each respective lease-operator as the employer.
[16] Yellow Cab was assessed for employment insurance premiums for the 1997 and 1998 taxation years in respect of services that were performed by the eight lease-operators. The assessments were also on the basis of its failure to deduct and remit premiums under the Act in respect of their remuneration from fares collected by them.
TRIAL JUDGMENT
[17] Judge Hamlyn held that Matharu and the lease-operators, when personally driving the taxicabs, were in insurable employment pursuant to paragraph 6(e) of the Regulations. Paragraph 6(e) reads as follows:
| 6. Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment: ... (e) employment of a person as a driver of a taxi, commercial bus, school bus or any other vehicle that is used by a business or public authority for carrying passengers, where the person is not the owner of more than 50 per cent of the vehicle or the owner or operator of the business or operator of the public authority; [emphasis added] |
6. Sont inclus dans les emplois assurables, s'ils ne sont pas des emplois exclus conformément aux dispositions du présent règlement, les emplois suivants: ... e) l'emploi exercé par une personne à titre de chauffeur de taxi, d'autobus commercial, d'autobus scolaire ou de tout autre véhicule utilisé par une entreprise privée ou publique pour le transport de passagers, si cette personne n'est pas le propriétaire de plus de 50 pour cent du véhicule, ni le propriétaire ou l'exploitant de l'entreprise privée ou l'exploitant de l'entreprise publique; [je souligne] |
[18] In reaching his conclusion, Hamlyn J. correctly stated that
a person employed as a driver of a taxicab is excluded from paragraph 6(e) of the E.I. Regulations if the persons meets one of the following exceptions:
(1) the person is owner of more than 50 per cent of the vehicle;
(2) the person is the owner or operator of the business; or
(3) the person is the operator of the public authority.
[19] On our facts, only the second exception has relevance. The first exception does not apply because the lease-operators clearly do not own their taxicabs and, while he owns all the rights to operate the taxicab during the day, Matharu does not own more than 50 per cent of the vehicle. Likewise, the third exception does not apply because there is no public authority involved in carrying passengers.
[20] The Judge stated:
A substantial degree of control is exercised by Yellow Cab over the owner-operator and lease-operators in the provision of taxicab services, including the carrying of passengers, under the name of Yellow Cab.
The overall analysis of the whole scheme of the organization leads to the conclusion that the delivery of taxicab services business in which the owner-operators and lease-operators are an integral part of Yellow Cab and as such Yellow Cab is the employer. ...
The owner-operator and the lease-operators are not the owners or operators of the business of taxicab services, i.e. carrying passengers. That is the business of Yellow Cab.
I find the owner-operators and the lease-operators, when driving the taxicabs, are in insurable employment pursuant to paragraph 6(e) of the Employment Insurance Regulations. [emphasis mine]
[21] Judge Hamlyn then concluded that the Drivers' assessment should be calculated on their net revenue, citing the Tax Court of Canada decision in Jack M. Chow v. MNR, (1 March 2000) 98-42 (UI).
ANALYSIS
[22] The main issue in this application is whether Matharu and the lease-operators were owners or operators of their own businesses within the meaning of s. 6(e) of the Regulations.
[23] I will start my analysis by applying the test set out by the Supreme Court in 671122 Ontario Limited v. Sagaz Industries Canada Inc., [2001] S.C.J. No. 61. In Sagaz, Major J. wrote in paragraphs 47-48:
Although there is no universal 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 their own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case. [emphasis mine]
As Major J. noted, the central question is "whether the person who has been engaged to perform the services is performing them as a person in business on their own account".
[24] I will address Matharu and the lease-operators separately, starting with the lease-operators. The evidence shows that the lease-agreements under which the lease-operators are obligated confers upon Yellow Cab a considerable degree of control.
[25] For example, the lease-operators are obligated to comply with all orders or directions to the lease-operators with respect to dispatch services and the general operation of the taxicabs; the lease-operators are obligated to diligently operate the taxicab on a continuous basis; and the lease-operators are obligated to use Yellow Cab's bookkeeping and fuel provision services. Yellow Cab can order the suspension or discharge of drivers in breach of any rules or regulations of Yellow Cab or of any municipality or other regulatory body. The taxicab may only be driven by the lease-operator or by a driver approved by Yellow Cab. These facts tend to evidence such a degree of control by Yellow Cab as to favour indicating that the lease operators were employees.
[26] Another consideration is who owns the tools of the trade. The lease agreements indicate that Dhillon owns "the rights to operate the Taxicab" and that Dhillon and the lease-operator will agree before commencement of the term of the lease whether Dhillon or the lease operator will provide the taxicab. It is clear from these facts that, while lease-operators in general may or may not provide the taxicab, Yellow Cab does not. For our purposes it is sufficient to know that Dhillon owns the rights to operate the taxicab and that he leased those rights to the lease-operators. However, under the lease agreements the lease-operators also have the exclusive right to possess and use the taxicabs subject to the rights of Yellow Cab in the event of default in the terms of the lease agreement with the lease operators. This is not a situation where different taxicabs are assignable to different drivers from one day to the next. The lease-operators do have rights in the taxicabs insofar as they are entitled to use the taxicabs to the exclusion of others. Consequently, the consideration of who "owns the tools" favours the lease-operators as being "operators of their own business".
[27] Further considerations are the risk of loss and the chance of profit. The lease-operators' monthly financial obligation to Yellow Cab is fixed, not variable. Furthermore, the lease-operators must pay operating expenses for fuel and repairs. Meanwhile their revenues are variable and presumably depend upon the skill and effort of the lease operator. Clearly, this indicates that the lease-operators are in a position to gain a profit or suffer a loss from the operation of the taxicab business. This favours an indication that the lease-operators are in the position of independent operators. More precisely, the lease-operators appear to be entrepreneurs or "operators of a business".
[28] I note also that the degree of financial risk taken by the lease-operators is considerably more than that taken by Yellow Cab. While the lease-operators' income depends upon variable revenues exceeding fixed costs, Yellow Cab's revenues are fixed.
[29] Another consideration is whether the lease-operators "hire their own helpers". The lease-operators were in a position to delegate their driving duties, which itself indicates independent operator status. More importantly, however, I note that the lease-operators actually did delegate some their driving duties and, when they did, the lease-operators remitted CPP income tax, and CPP and Employment Insurance premiums on behalf of the drivers. The Respondent does not dispute that the lease-operators were the employers of the hired drivers as evidenced by the fact that the Respondent did not assess Yellow Cab for the revenues generated when the lease operators employed drivers.
[30] As Major J. stated in Sagaz, "the relative weight of each [of the above factors] will depend on the particular facts and circumstances of the case". On our facts, I consider that the chance of profit, the relative degree of financial risk and the ability of the lease-operators to "operate their own business" to be the most important. These factors all militate against a finding that the lease-operators are employees of Yellow Cab.
[31] Referring back to the central question articulated by Major J. in Sagaz, I conclude that the lease-operators are in business on their own account. I also find that Hamlyn J. erred in considering only the factor of control to the exclusion of other relevant factors. The lease-operators are in the business of providing taxicabs to the public and therefore are the operators of the taxicab business within the meaning of s. 6(e). Meanwhile, Yellow Cab is in the business of providing administrative services to the taxicab business including providing taxicab support services in the form of dispatching, bookkeeping, branding and marketing.
[32] Given that I have concluded that the lease-operators are in business on their own account, Matharu must also be so. After all, the only distinctions between Matharu and the lease-operators favour the conclusion that Matharu is an independent operator. On the issue of ownership, Matharu owns shares of Yellow Cab, rights to a license issued by the City of Vancouver to Yellow Cab, rights to the permit issued by the province of British Columbia to Yellow Cab and he owns his right to the exclusive use of his taxicab for half a day. Other factors such as control, chance of profit, risk of loss, and ability to hire helpers weigh the same as with the lease-operators.
[33] Therefore, I conclude that both Matharu and the lease-operators are operators of the taxicab business based on the factors outlined in Sagaz, supra. I note that my learned colleague, Malone J.A., agrees with my conclusion in this regard.
Policy Considerations
[34] Having concluded that the lease-operators and Matharu are operators of the taxicab business under the Sagaz test, I will consider whether any of the jurisprudence relating to s. 6(e) affects this conclusion. First, is the case of Martin Service Station v. Minister of National Revenue, [1977] 2 S.C.R. 996. In Martin, the issue was a Constitutional question with respect to s. 4(1)(c), which is now s. 5(4)(c):
| 5. (4) The Commission may, with the approval of the Governor in Council, make regulations for including in insurable employment, ... (c) employment that is not employment under a contract of service if it appears to the Commission that the terms and conditions of service of, and the nature of the work performed by, persons employed in that employment are similar to the terms and conditions of service of, and the nature of the work performed by, persons employed under a contract of service; ... |
5. (4) La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements en vue d'inclure dans les emplois assurables ... c) l'emploi qui n'est pas un emploi aux termes d'un contrat de louage de services, s'il parat évident à la Commission que les modalités des services rendus et la nature du travail exécuté par les personnes exerçant cet emploi sont analogues aux modalités des services rendus et à la nature du travail exécuté par les personnes exerçant un emploi aux termes d'un contrat de louage de services; |
[35] Section 5(4)(c) purports to enable the Commission to deem employment not under a contract of service to be insurable employment. The Commission enacted what is now s. 6(e) of the Regulations, which purported to include taxicab driving within insurable employment, with certain exceptions.
[36] The appellants in Martin argued that it was ultra vires for Parliament to enact now s. 5(4)(c) (and therefore ultra vires for the Commission to create now s. 6(e) of the Regulations) because it exceeded the federal government's power to make laws in respect of insurance and that, to hold otherwise would empower Parliament to move into the fields of unemployment assistance, minimum wage maintenance and other areas of social security reserved to the provinces.
[37] Justice Beetz wrote at 1004-5 in relation to now s. 6:
But even leaving out of account any possible intention to evade the Acts, if conditions become such that those who have a contract of employment to perform a given type of work find themselves unemployed, it is most likely that those who perform the same type of work, although they be self-employed, will also find themselves out of work because of the same conditions. It is mainly to protect the latter against this risk of unavailability of work and involuntary idleness that the Acts are extended. Whether they be self-employed or employed under a contract of service, taxi drivers and bus drivers for instance are exposed to the risk of being deprived of work. This risk is, in my opinion, an insurable one, at least under a scheme of compulsory public insurance which was never expected to function on a strict actuarial basis provided it generally conformed to the nature of an insurance scheme, including protection against risk and a system of contributions. [emphasis mine]
[38] Justice Beetz indicated that individuals, even if found not to be under a contract of service, can yet be deemed to be insurable employees. However, it should be remembered that this statement was addressed to the argument that it was ultra vires for Parliament to pass such legislation. The case holds that it is intra vires for Parliament to legislate so as to allow the Commission, pursuant to s. 5(4)(c), to deem persons not employed under a contract of service to be in insurable employment. Section 6(e) of the Regulations does exactly that, it deems some taxidrivers to be in insurable employment.
[39] This does not mean, as the Respondent contends, that s. 6(e) "was enacted to include in insurable employment the services of taxidrivers operating as independent contractors" nor does it mean that the Commission has deemed all taxidrivers to be in insurable employment. To the contrary, s. 6(e) expressly excludes taxidrivers that own or operate their own business from being deemed to be in insurable employment.
[40] While it is true that the Supreme Court in Martin favoured a liberal interpretation of the Act, Martin is of limited application to the present case because it dealt with regular taxidrivers, not persons in the position of the lease-operators or owner-operators and the issue as to who was the operator of the business was not present in Martin. Martin simply stands for the assertion that s. 6(e) is constitutionally valid notwithstanding that it can apply to taxidrivers who are not engaged in a contract of service. However, as I mentioned above, this does not mean that s. 6(e) transforms taxidrivers who own or operate their own business into employees. To the contrary, s. 6(e) expressly exempts such people.
[41] On our facts, Matharu and the lease-operators are the owners or operators of the business. Clearly, pursuant to s. 5(4)(c) of the Act, the Commission could create regulations so that these individuals would be deemed to be employees. However, pursuant to s. 6(e) of the Regulations, it is equally clear that the Commission has chosen not to do so by indicating that where taxidrivers are the operators of the business, they will not be considered to be included in "insurable employment".
[42] In Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, Wilson J. stated at 10 that "[s]ince the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation... ." Later, in Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, the majority of the Supreme Court of Canada adopted this view and noted at paragraph 37 that "[t]here is no doubt that legislation relating to unemployment, when first enacted in England and later in Canada, had a social objective", and at paragraph 40 that
The basic thrust of the original Act remained constant through the years. Its numerous amendments were designed to expand qualifying conditions and increase benefits and contributions in order to eliminate inequities, to promote employment opportunities and to co-ordinate other social assistance programs. The shift, if any, was rather from the main protection objective to the labour market objective.
[43] The above cases clearly express that it was Parliament's intention to protect the unemployed and that the Act must be interpreted liberally. However, none of these cases take away from the conclusion I have reached. A finding that the Act is to be applied liberally, cannot be used to contradict the plain meaning of s. 6(e).
[44] As mentioned previously, the Respondent seems to take no objection to the lease-operators being characterized as operators of the taxi business when they employ other drivers. It is only when the lease-operators drive the taxi themselves that the Respondent takes the position that they become drivers within the meaning of s. 6(e).
[45] The Respondent's interpretation of s. 6(e) would lead to the following inconsistency: when the lease-operators hire drivers, they are independent operators but the minute the lease-operator slips behind the wheel of the taxicab, the lease-operators' identity changes from that of independent operator to that of employee. Such an absurdity cannot have been intended by this legislation. If the legislation is interpreted as I have already suggested, no inconsistency arises. When the lease-operators drive the taxicabs themselves, they are working for themselves. Hence, they are self-employed and in business on their own account. Although a liberal interpretation of s. 6(e) is to be favoured, the Court cannot use that policy as an excuse to create absurdities in its application.
[46] In conclusion, section 6(e) exempts taxidrivers who are "owners or operators" of a business. On our facts, the lease-operators and Matharu are "owners or operators" of their business. Therefore, they are exempt from the Regulations.
Other Taxicab Cases
[47] Moving from the policy concerns, I now would like to address several cases that have similar facts to those in the present case. In Canada (A.G.) v. Skyline Cabs (1982) Ltd., [1986] F.C.J. No. 335 (C.A.), Skyline Cabs was assessed for employer's contributions under s. 12(e) [now s. 6(e)] of the Regulations. Skyline Cabs had argued that it did not employ any drivers, but rather held a taxicab broker's licence and rented its vehicles to drivers for a fee that included access to a dispatch service. However, it also exercised control over such items as the dress, grooming, and conduct of the drivers, cleanliness of cars, and the collection of credit card revenues. More importantly, Skyline Cabs owned the taxicabs in question and held a taxicab broker's licence that was used to lease the taxicabs to drivers. Furthermore, in Skyline, it appears that the lessee-drivers were not empowered to employ other drivers.
[48] This Court held that, even though the drivers in question leased vehicles from Skyline without a "contract of service," they were nonetheless in insurable employment. Justice MacGuigan observed that while the facts did not establish a "contract of service", it nonetheless irrefutably established "a sufficient degree of participation by Skyline Cabs in the carrying of passengers by the taxis." In particular, he noted that
in the light of the Supreme Court of Canada decisions in The Queen v. Scheer Ltd, [1974] S.C.R. 1046 and Martin Service Station v. Minister of National Revenue, [1977] 2 S.C.R. 996, in my view it must be taken as settled law that the word "employment" in that subsection [now s. 6(e)] is not to be understood in the narrower sense of a contract of service, the sense in which it was interpreted by the Tax Court, but in the broader sense of ‘activity' or ‘occupation'.
And further:
The sum total of these facts may not be sufficient to establish the existence of a contract of service between the drivers and the respondent, but in my opinion irrefutably establishes a sufficient degree of participation by the respondent in the carrying of the passengers by the taxis. If such a full degree of participation by the respondent in the carriage of passengers were not enough to establish that the taxis may be said to be used by it as part of its business, it seems to me that the policy of the statute to protect taxi drivers against the "risk of unavailability of work and involuntary idleness", as expressed by the Supreme Court of Canada in the Martin case, supra, would not be implemented. (emphasis added)
[49] In his analysis, MacGuigan J.A. suggests that the test to be applied for the purposes of s. 6(e) is whether the facts establish a "sufficient degree of participation" by Yellow Cab. This particular phraseology seems to emphasize the factor of control. However, it is worth noting that the decision in Skyline was rendered before Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (C.A.) and before Sagaz, supra, so that the Court in Skyline did not have the benefit of the more recent analysis of the other relevant factors in defining "independent operators" which the Supreme Court of Canada has provided in Sagaz. As noted, the central question is "whether the person who has been engaged to perform the services is performing them as a person in business on their own account" (Sagaz) and the answer to that question depends on the "total relationship of the parties" (Wiebe).
[50] In any event, I believe Skyline can be distinguished on its facts. Skyline owned the taxicabs whereas Yellow Cab does not own the taxicabs in question. The rights in the taxis and in the licence to operate the taxi are owned by a third party (Dhillon) in the case of the lease-operators. In the case of Matharu, he owns the rights to taxicab no. 102 during the day. Further, in Skyline, the lessee drivers were not empowered to employ other drivers.
[51] The distinction that arises between Skyline and the facts of the present case also arose in Checkmate Cabs Ltd. v. Caada (M.N.R.), [1998] T.C.J. No. 329, where each driver contracted with the taxicab's owner, who in turn had a separate contract with Checkmate. The Tax Court applied the Wiebe analysis, which was approved of by the Supreme Court in Sagaz, and concluded that the drivers were not employed by Checkmate.
[52] The Respondent argues that Checkmate is distinguishable from our facts on the basis that, in Checkmate there was no privity of contract between the drivers and Checkmate whereas here there is privity of contract between the lease-operators and the Yellow Cab and between Matharu and Yellow Cab. However, this is not a sufficient distinction. The decision in Checkmate is useful in supporting the conclusion in our case that the lease-operators and Matharu are operators of their own business. After all, in Checkmate, it was the taxi owners, not the drivers, who were in an analogous position to the lease-operators and Matharu in the facts of the present case.
[53] One final case I would like to address is Mangat v. MNR, [2000] F.C.J. No. 1464 (C.A.). In Mangat, the applicants, Mr. and Mrs. Mangat owned taxicabs that they leased to drivers. Neither of the applicants held a licence from the Motor Carrier Commission. Instead, they owned shares in two dispatching companies that held taxi licences. Because they owned the shares, the applicants were able to make use of the licences. In addition to the cost of their shares, the applicants paid a monthly fee for dispatching and advertising services to the dispatching companies. The applicants then leased their vehicles to drivers and included all of the services of the dispatch companies in the cost of the lease.
[54] The main issue in Mangat was whether it was the Mangats or the two dispatching companies that employed the drivers for the Unemployment Insurance purposes. This Court concluded that the Mangats were the employers. Thus, this case supports the view that the lease-operators and Matharu are the employers of their drivers and hence own or operate their own businesses.
[55] The Respondent argues further that Yellow Cab was a deemed employer of the owner operators by reason of s. 9(1) of the Insurable Earnings and Collection of Premiums Regulations. Section 9(1) reads as follows:
| 9. (1) Every owner or operator of a business or public authority that employs a person or persons in employment described in paragraph 6(e) of the Employment Insurance Regulations shall, for the purposes of maintaining records, calculating insurable earnings and paying the premiums payable on those insurable earnings under the Act and these Regulations, be deemed to be the employer of every such person whose employment is included in insurable employment under that paragraph. [emphasis added] |
9. (1) Le propriétaire ou l'exploitant d'une entreprise privée ou publique au service de laquelle une ou plusieurs personnes exercent un emploi visé à l'alinéa 6e) du Règlement sur l'assurance-emploi est réputé, aux fins de la tenue des registres, du calcul de la rémunération assurable et du paiement des cotisations exigibles à cet égard aux termes de la Loi et du présent règlement, être l'employeur de chacune de ces personnes dont l'emploi est inclus dans les emplois assurables en vertu de cet alinéa. [je souligne] |
[56] Section 9(1) does not, in my mind assist the present analysis. As applied to the facts in this case, it merely means that the lease-operators and Matharu are deemed to be the employers of the drivers for the purposes of maintaining records, calculation of insurable earnings and paying the premiums payable on those insurable earnings under the Act.
[57] In any event, s. 9(1) suggests to me that the identity of the deemed employer for the purposes of the Act does not depend on who is driving the taxicab; the identity of the deemed employer depends on who owns or operates the business. Therefore, s. 9(1) does not affect the main issue in this case.
[58] In the light of my interpretation of the statute and case law, I must conclude that the lease-operators and Mataru were not in insurable employment. Rather, they were the owners- or operators of their own business and therefore exempt under s. 6(e) of the Regulations.
[59] Having concluded that the lease-operators and Matharu are the owners or operators of the own businesses, it is not necessary to this decision to consider whether the insurable earnings should be calculated on a gross or net revenue basis. However, it is my view that Hamlyn J. did not commit an error in ordering that the insurable earnings be calculated on a net revenue basis.
[60] I would allow Yellow Cab's application for judicial review with costs.
"J. Edgar Sexton"
"I agree J.A.
Julius A. Isaac J.A."
MALONE J.A. (DISSENTING)
[61] I respectfully dissent from the reasons of the majority, as prepared by Sexton J.A.. My reasons follow.
[62] Yellow Cab Company Ltd. (the applicant or Yellow Cab) seeks judicial review of a judgment of Judge D. Hamlyn, a judge of the Tax Court of Canada (the Judge), dated May 23, 2001 (reported as [2001] T.C.J. No. 338). The Judge dismissed the applicant's appeal from four re-assessments on the basis that the applicant was properly assessed for employment insurance premiums for nine taxi operators. The Minister of National Revenue (the Minister) also seeks judicial review of the Judge's decision that all calculations are to be made on a net as opposed to gross revenue basis.
[63] Two issues are raised by the parties in these applications for judicial review, namely:
a. is Yellow Cab deemed to be the employer of Rajinder Matharu (Matharu), an owner-operator, and eight lease-operators (collectively, the Drivers) under subsection 6(e) of the Employment Insurance Regulations (Regulations); and
b. if so, should the Drivers' insurable income be calculated on a gross or net revenue basis.
FACTS
[64] In July of 1998, Yellow Cab received four assessments for Employment Insurance withholdings and remittances. One assessment was for 1996, two were for 1997, and one was for the 1998 taxation year. The applicant filed objections to these assessments, all of which were subsequently confirmed by the Minister. In the Minister's view, the applicant was required to deduct and remit contributions for the Drivers under the Employment Insurance Act (the Act) and the Regulations.
[65] The applicant organizes its business in the following way. Motor carrier licenses for all taxicabs are issued to Yellow Cab, which is the registered owner of all such vehicles for various purposes including fleet insurance. It enforces the rules and regulations of the various regulatory bodies which govern the taxicab industry in British Columbia, and incorporates those rules and regulations as part of its contracts with the Drivers. Yellow Cab owns the rights to operate 10 taxicabs, while the rights to operate the remaining 188 vehicles are owned by its shareholders. These operative rights are divided into three categories: whole cab, day half or night half. Owners who do not wish to operate their taxicabs but still wish to maintain their rights may lease their interests to lease-operators. The applicant in its dispatch service receives customer orders and dispatches taxicabs using the name Yellow Cab.
[66] A purchase agreement and an operating agreement govern the applicant's relationship with Matharu. The parties to the purchase agreement include Ross M. Mills, the vendor, Matharu, the purchaser, and Yellow Cab. Under that agreement, the vendor agreed to sell to Matharu his shares in the capital of Yellow Cab, his rights to a license issued by the City of Vancouver to Yellow Cab, his rights to the permit issued by the province of British Columbia to Yellow Cab and his interests in the day half of motor vehicle #102. This sale to Matharu was subject to Yellow Cab's approval. In consideration of the applicant's approval, Matharu granted Yellow Cab a one year option to purchase the vehicle; such option to be exercised upon its future determination at any time that the taxicab was not being operated in accordance with its rules and regulations. In addition to the purchase price, the owner-operator bore all operating and maintenance expenses. Under a separate operating agreement between Matharu and Yellow Cab, the applicant can penalize the owner-operator for a breach of company procedures.
[67] Yellow Cab was assessed for unremitted employment insurance premiums for three taxation years in respect of services performed by Matharu. During the relevant period, Matharu owned 50% of the rights to operate Cab No. 102 during the day, including the right to use the licence issued by the City of Vancouver in respect of that vehicle. Matharu sometimes paid drivers to drive Cab No. 102 during the day and remitted income tax, CPP and employment insurance on behalf of those drivers. Each driver was issued a T4 statement identifying Matharu as the employer. Before Judge Hamlyn, the parties agreed that the assessments related only to those fares collected by Matharu in his capacity as a driver.
[68] Yellow Cab was also assessed for employment insurance premiums for two taxation years in respect of services that were performed by the eight lease-operators. The assessments were also on the basis of its failure to deduct and remit premiums under the Act in respect of their remuneration from fares collected by them.
[69] The contracts governing the lease-operators are found in eight lease agreements. Under these agreements, Amrik Dhillon (Dhillon), the owner of the vehicles and a shareholder of Yellow Cab, maintains the right to operate the taxicabs in question. The form and content of the lease agreements is essentially the same, differing only in the identity of the owner, the identity of the operator, the cab number, the term of the lease and the operating fee. These operating rights are leased to the eight lease-operators who hold taxicab permits issued by the applicant, who holds licenses issued by the City of Vancouver. Included in Yellow Cab's monthly operating fee charged to the lease operators is an amount for the use of the taxicab license. The agreement provides that the applicant may issue orders or directions to the lease-operators with respect to dispatch services and the general operation of the taxicabs, and can order the suspension or discharge of drivers in breach of any of its rules or regulations. The agreement also provides that the lease-operators shall be entitled to revenues received from the operation of the cab. The lease-operators are responsible for the following: a monthly dispatch fee; fuel; repairs; licences; inspection certificates; and administration, bookkeeping and operating fees.
[70] The Judge held that the Drivers, when personally driving the taxicabs, were in insurable employment pursuant to paragraph 6(e) of the Regulations. Paragraph 6(e) reads as follows:
| 6. Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment: ... (e) employment of a person as a driver of a taxi, commercial bus, school bus or any other vehicle that is used by a business or public authority for carrying passengers, where the person is not the owner of more than 50 per cent of the vehicle or the owner or operator of the business or operator of the public authority; [emphasis added] |
6. Sont inclus dans les emplois assurables, s'ils ne sont pas des emplois exclus conformément aux dispositions du présent règlement, les emplois suivants: ... e) l'emploi exercé par une personne à titre de chauffeur de taxi, d'autobus commercial, d'autobus scolaire ou de tout autre véhicule utilisé par une entreprise privée ou publique pour le transport de passagers, si cette personne n'est pas le propriétaire de plus de 50 pour cent du véhicule, ni le propriétaire ou l'exploitant de l'entreprise privée ou l'exploitant de l'entreprise publique; [je souligne] |
[71] Judge Hamlyn was of the view that subsection 6(e) of the Regulations should be read in the manner set out by Heald J.A. for this Court in 715341 Ontario Ltd. v. M.N.R., [1993] F.C.J. No. 1064, specifically as meaning insurable employment will be "employment of a person as a driver of a taxi, ... where that person is not the owner of more than 50 per cent of the vehicle." He also noted that the subsection provides that, in determining whether the Drivers are in insurable employment, their occupation must be that of drivers of a taxicab and they must not be owners of more than 50 per cent of the vehicle and must not own or operate the business of delivering taxicab services.
[72] In reaching his conclusion, the Judge took cognizance of the fact that the operation of the taxicabs is governed by the contracts between Yellow Cab and the Drivers, that a substantial degree of control is exercised by the applicant over the Drivers, and that Yellow Cab in this relationship is not merely a taxicab support service provider, but rather is in the business of delivering taxicab services, including the carriage of passengers. In his view, the broad scheme of the organization indicates that the delivery of taxicab services is the business of Yellow Cab and, therefore, Yellow Cab is the employer. He then wrote:
[t]he owner-operators and the lease-operators are employed as drivers of taxis for Yellow Cab. In their employment as drivers of taxicabs the owner-operator and the lease-operators are not the owners of more than 50 per cent of the vehicles. The owner-operators and the lease-operators are not the owners or operators of the business of the delivery of taxicab services, i.e. carrying passengers. That is the business of Yellow Cab.
I find the owner-operators and the lease-operators, when driving the taxicabs, are in insurable employment pursuant to paragraph 6(e) of the Employment Insurance Regulations.
[73] Without detailed analysis, Hamlyn J. then concluded that the Drivers' assessment should be calculated on their net revenue, citing the Tax Court of Canada decision in Jack M. Chow v. MNR, 98-42(UI).
ANALYSIS
Common Law Considerations
[74] Considerable argument focused on the Supreme Court of Canada's decision in 671122 Ontario Limited v. Sagaz Industries Canada Inc., 2001 SCC 59 and its application to the facts of this case. In essence, Sagaz, supra, is a restatement of the time-honoured decision of this Court in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553. Writing for the Supreme Court of Canada, Major J. noted that control was but one factor to be considered in determining employment status, the others to include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks. The integration test, often the subject of much confusion, was acknowledged but marginalized. In the result, Major J. held that no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations, and went on to agree with MacGuigan J.A. in Wiebe Door, that what must always occur is "a search for the total relationship of the parties".
[75] On the basis of the factors in Sagaz, supra, and from a common law perspective, one can easily determine that the Judge placed too much importance on the control factor, while ignoring the Drivers' chance of profit and risk of loss, as well as the fact that ownership of the "tools" of the occupation, the vehicle itself and the rights therein, does not lie with Yellow Cab. In my analysis, the Drivers are in business for their own account and are independent contractors under the Sagaz test. Clearly, Yellow Cab and the Drivers are all separate businesses at common law. On this point, I am in agreement with Sexton J.A. However, the matter does not end there, as I must consider the breadth of the language used by Parliament in paragraph 6(e). It is on this issue that my analysis diverges from that of my colleague.
[76] The applicable rules of statutory interpretation require that I examine the wider context of paragraph 6(e) before settling on its precise parameters (see Sarvanis v. Canada, 2002 SCC 28 at paragraph 24). As this Court noted in Canada (A.G.) v. Skyline Cabs (1986), 70 N.R. 210, what is now paragraph 6(e) operates to extend the conventional meaning of "employment." Paragraph 6(e), and the other provisions in section 6 which deem certain occupations to be insurable employment, operate to extend the benefits of employment insurance to those persons who would, under a more traditional analysis, fall outside the definition of employment. For this reason, hairdressers, taxi drivers, trainees/apprentices and persons under contract with an employment agency, to name a few, are included in insurable employment notwithstanding that under a traditional employee/independent contractor analysis, they would most often be considered independent contractors. It is noteworthy that the common law factors, namely those in Sagaz, supra, are utilized in those situations where a deeming provision such as paragraph 6(e) is not applicable.
[77] I must also have regard to interpretive directions given by the Supreme Court of Canada specifically with respect to this Act and Regulations. I note first of all the Supreme Court of Canada's decision in Martin Service Station v. Minister of National Revenue, [1977] 2 S.C.R. 996, where Beetz J. wrote at 1004-5 in relation to what is now paragraph 6(e):
But even leaving out of account any possible intention to evade the Acts, if conditions become such that those who have a contract of employment to perform a given type of work find themselves unemployed, it is most likely that those who perform the same type of work, although they be self-employed, will also find themselves out of work because of the same conditions. It is mainly to protect the latter against this risk of unavailability of work and involuntary idleness that the Acts are extended. Whether they be self-employed or employed under a contract of service, taxi drivers and bus drivers for instance are exposed to the risk of being deprived of work. This risk is, in my opinion, an insurable one, at least under a scheme of compulsory public insurance which was never expected to function on a strict actuarial basis provided it generally conformed to the nature of an insurance scheme, including protection against risk and a system of contributions.
[emphasis added]
[78] Six years later, Wilson J., in the course of her reasons in Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, stated at p. 10 that "[s]ince the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation...". Later, in Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, the majority of the Supreme Court of Canada adopted this view and noted at paragraph 37 that "[t]here is no doubt that legislation relating to unemployment, when first enacted in England and later in Canada, had a social objective," and at paragraph 40 that
The basic thrust of the original Act remained constant through the years. Its numerous amendments were designed to expand qualifying conditions and increase benefits and contributions in order to eliminate inequities, to promote employment opportunities and to co-ordinate other social assistance programs. The shift, if any, was rather from the main protection objective to the labour market objective.
[79] Given this context, the application of the Sagaz factors is, in my analysis, improper. Such an application to the definition of "operator of a business" would sterilize paragraph 6(e), so as to deny benefits to taxi drivers who resemble independent contractors; the very situation that 6(e) was created to address.
Paragraph 6(e) of the Regulations
[80] Yellow Cab now asserts that since the Drivers are in business for their own account, the Judge erred in failing to consider that, on the facts of this case, including third party ownership of the vehicles, the Drivers would be exempt from insurable employment being the operators of businesses pursuant to paragraph 6(e).
[81] The application of paragraph 6(e) arose recently in the decision of this Court in Mangat v. MNR, [2000] F.C.J. no. 1464 (FCA). There the Court characterised the issue as whether the owner, proprietor or operator of a business that employs a person as a driver of a taxi is deemed to be an employer for the purposes of the Act. Reference was made to subsection 17(1) of the Unemployment Insurance (Collection of Premiums) Regulations [now Employment Insurance (Collection of Premiums) Regulations, subsection 9(1)], which reads as follows:
| 9. (1) Every owner or operator of a business or public authority that employs a person or persons in employment described in paragraph 6(e) of the Employment Insurance Regulations shall, for the purposes of maintaining records, calculating insurable earnings and paying the premiums payable on those insurable earnings under the Act and these Regulations, be deemed to be the employer of every such person whose employment is included in insurable employment under that paragraph. [emphasis added] |
9. (1) Le propriétaire ou l'exploitant d'une entreprise privée ou publique au service de laquelle une ou plusieurs personnes exercent un emploi visé à l'alinéa 6e) du Règlement sur l'assurance-emploi est réputé, aux fins de la tenue des registres, du calcul de la rémunération assurable et du paiement des cotisations exigibles à cet égard aux termes de la Loi et du présent règlement, être l'employeur de chacune de ces personnes dont l'emploi est inclus dans les emplois assurables en vertu de cet alinéa. [je souligne] |
[82] Subsection 9(1) makes it clear that the "deemed" employer is to be the "operator of the business". It must then follow that, as paragraph 6(e) also makes clear, a taxi driver will be excluded from paragraph 6(e) if and when he is the "operator of the business". Hence, in Mangat, supra, this Court held that the relevant portions of paragraph 6(e) would read as follows: "employment of a person as a driver of a taxi... where the person is not the owner of more than 50 per cent of the vehicle or the owner or operator of the business." This approach is in accordance with the language of paragraph 6(e), and is the view adopted by MacGuigan J.A. in Skyline Cabs, supra, as well.
[83] In that case, Skyline Cabs was assessed for employer's contributions under paragraph 12(e) of the then Regulations. Skyline had argued that it did not employ any drivers, but rather held a taxi broker's licence and rented its vehicles to drivers for a fee that included access to a dispatch service. However, it also exercised control over such items as the dress, grooming, and conduct of the drivers, cleanliness of cars, and the collection of credit card revenues. This Court held that, even though the drivers in question leased vehicles from Skyline without a "contract of service," they were nonetheless in insurable employment. MacGuigan J.A. observed that while the facts did not establish a "contract of service", it nonetheless irrefutably established "a sufficient degree of participation by Skyline Cabs in the carrying of passengers by the taxis." In particular, he noted at page 212 that
in the light of the Supreme Court of Canada decisions in The Queen v. Scheer Ltd, [1974] S.C.R. 1046 and Martin Service Station v. Minister of National Revenue, [1977] 2 S.C.R. 996, in my view it must be taken as settled law that the word "employment" in that [what is now subsection 6(e)] is not to be understood in the narrower sense of a contract of service, the sense in which it was interpreted by the Tax Court, but in the broader sense of 'activity' or 'occupation'. ...
And further at 214:
The sum total of these facts may not be sufficient to establish the existence of a contract of service between the drivers and the respondent, but in my opinion irrefutably establishes a sufficient degree of participation by the respondent in the carrying of the passengers by the taxis. If such a full degree of participation by the respondent in the carriage of passengers were not enough to establish that the taxis may be said to be used by it as part of its business, it seems to me that the policy of the statute to protect taxi drivers against the "risk of unavailability of work and involuntary idleness", as expressed by the Supreme Court of Canada in the Martin case, supra, would not be implemented.
[emphasis added]
In essence, MacGuigan J.A. read paragraph 12(e) in the context of the compulsory employment insurance scheme established by the then Act and Regulations.
[84] Yellow Cab now seeks to distinguish the Skyline Cabs decision on the basis that, in the present case, it does not own or lease the vehicles. This distinction was applied in Checkmate Cabs Ltd. v. Canada, [1998] T.C.J. No. 329 where each driver contracted with the cab's owner, who had a separate contract with Checkmate. In those circumstances, the Tax Court held that the vehicle owner, and not Checkmate, should be deemed to be the employer of the drivers.
[85] In the present case, none of the Drivers own more than 50% of the rights in the vehicle, thereby initially complying with paragraph 6(e) of the Regulations. Upon payment of a monthly fee to Yellow Cab, each receives the permit necessary to drive the cab in Vancouver under the Yellow Cab name. Yellow Cab clearly utilizes a great degree of control over how the Drivers conduct themselves, as, for example, it requires the Drivers to use its bookkeeping and fuel provision services, holds the right to approve of all vehicles used, and holds the power to suspend or approve all drivers. Further, it controls the Drivers' behaviour when communicating with the media, prohibits "fare scooping", and enforces rules and regulations governing dress, grooming, and public safety. Also of importance is the fact that Yellow Cab retains the right to either cancel the lease agreement or exercise its option to purchase the vehicle should the Drivers fail to observe its rules and regulations set out in the operating agreements. In my view, the Checkmate Cabs decision is distinguishable on the basis that no contractual obligations existed between Checkmate and the drivers. Checkmate was, in essence, a dispatch service, whereas here Yellow Cab provides services above and beyond those of a simple dispatcher.
[86] In an alternative argument, it is asserted both Yellow Cab and the Drivers can be considered to be operators concurrently. The basic thrust of this submission is that such a result is not prohibited by the legislation. However, given my analysis above, the Drivers, insofar as they derive income from personally driving their vehicle, could not be construed as operating their own business for the purposes of paragraph 6(e).
[87] In the result, following the "sufficient degree of participation" analysis established in Skyline Cabs, supra, I am not persuaded that the Judge erred in his interpretation of paragraph 6(e) or in his application of that paragraph to the facts of this case. His decision conforms to the directives given by the Supreme Court of Canada in Martin, Abrahams and Hills, supra, to the effect that since the overall social objective of the Act is to make benefits available to the unemployed, in order to eliminate inequities among Canadians, a liberal interpretation should be favoured. Further, applying the contextual interpretation of paragraph 6(e) mandated by Sarvanis, supra, I cannot conclude that his interpretation is in error. Accordingly, I would dismiss Yellow Cab's application for judicial review.
Calculation of Insurable Income
[88] The Minister argues that the Judge erred insofar as he held that the proper basis for the calculation of premiums payable by Yellow Cab was to be determined on the basis of net revenue. It is the Minister's position that Hamlyn J. improperly relied on Chow, supra, where the fares collected by the driver had to be remitted to the cab company which was responsible for vehicle expenses. Those expenses were deducted from the fares collected and the balance remitted to the driver as remuneration. The Minister argues that the facts of Chow, supra, are distinguishable from the present case, as here, the Driver is by an express contractual provision the "owner" of the fares collected, and is responsible personally for the expenses arising from the venture. As a result, the "remuneration" of what is, in essence, employment income in Chow, supra is not present in the instant case.
[89] The Minister relies on the wording of paragraph 2(1)(a) of the Insurable Earnings (Collection of Premiums) Regulations to support his case. That paragraph provides as follows:
| 2. (1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is (a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, [emphasis added] |
2. (1) Pour l'application de la définition de « _rémunération assurable_ » au paragraphe 2(1) de la Loi et pour l'application du présent règlement, le total de la rémunération d'un assuré provenant de tout emploi assurable correspond à l'ensemble des montants suivants : a) le montant total, entièrement ou partiellement en espèces, que l'assuré reçoit ou don't il bénéficie et qui lui est versé par l'employeur à l'égard de cet emploi; [je souligne] |
[90] The above wording directs that insurable earnings are calculated on the basis of amounts paid to the insured by the insured's employer. However, in the present case, the Drivers are not paid by their deemed employer, but rather collect revenues on their own, and cover the expenses inherent in achieving those revenues. The Minister asserts that since the contract provides that the Drivers are entitled to the full amount of the fares collected, the total amount of those fares is the appropriate basis on which to calculate the deemed employer's contributions.
[91] Yellow Cab takes issue with the Minister's characterisation of Chow, supra, arguing that the key to that case is not that the cab company owned the fares, but rather that "remuneration" is properly characterised as the income remaining after capital expenses have been incurred. If Yellow Cab is the operator of the business then any capital expense paid out by the Driver is paid on Yellow Cab's behalf, and the drivers are left with "remuneration," as in Chow supra. It follows that contributions would be calculated on net revenues.
[92] Further, the applicant argues in favour of a purposive analysis of the legislative scheme. The broad, purposive analysis of social insurance legislation has been adopted by the Supreme Court in Hills and Abraham, supra, as well as in Canadian Pacific v. Canada (A.G.), [1986] 1 S.C.R. 678. The applicant submits that the calculation of premiums should be based on what the Driver actually earns; otherwise, the insured could recover an amount not commensurate with the level of income he enjoyed, thus defeating a major purpose of the Act, i.e., to provide coverage at a level commensurate with the income lost due to unemployment. This purpose was implicit in LaForest J.'s reasons in Canadian Pacific, supra, at paras. 15-16, where he held that "earnings" should extend to include "amounts payable and promised by the employer in return for the employee's work."
[93] In my analysis, a purposive approach is appropriate, especially in the absence of a provision which expressly chooses a net or gross revenue basis for calculation. The most judicious result is a calculation of insurable earnings, and relative contributions, which is commensurate with the earnings actually enjoyed by the insured. This is the principle drawn from Canadian Pacific, supra, where the Supreme Court concluded that the best approach is to adopt a calculation of "earnings" which most accurately reflects the amount paid or promised to the insured by the employer. I am satisfied that it would be an error of law to interpret paragraph 2(1)(a) so as to allow the Drivers to receive a greater benefit than that to which they would be entitled had they been "remunerated" by their employer in the usual sense contemplated by that paragraph. The Drivers should be placed in a position no better or worse than a regular non-owner driver.
[94] In my view, the Judge did not commit an error in ordering that the Driver's insurable earnings be calculated on a net revenue basis, and I would dismiss the Minister's application for judicial review.
[95] In light of the divided success of the parties, I would make no order as to costs.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-378-01
STYLE OF CAUSE: Yellow Cab Co. Ltd. v. M.N.R.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: April 25, 2002
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: ISAAC J.A.
DISSENTING REASONS BY: MALONE J.A.
DATED: JULY 17, 2002
APPEARANCES:
Ms. Meghan McCreary FOR THE APPLICANT
Mr. Ron Wilhelm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Harris & Company
Barristers and Solicitors
Vancouver, B.C. FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT