Canada Post Corp. v. Carroll et al., (2012) 383 N.B.R.(2d) 326 (CA)

• Judge: Turnbull, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 23, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 383 N.B.R.(2d) 326 (CA);2012 NBCA 18

Can. Post v. Carroll (2012), 383 N.B.R.(2d) 326 (CA);

    383 R.N.-B.(2e) 326; 991 A.P.R. 326

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. FE.027

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.027

Canada Post Corporation (appellant/appellant) v. Edith Carroll (claimant/respondent) and Workplace Health, Safety and Compensation Commission of New Brunswick (respondent)

(82-11-CA; 2012 NBCA 18)

Indexed As: Canada Post Corp. v. Carroll et al.

Répertorié: Canada Post Corp. v. Carroll et al.

New Brunswick Court of Appeal

Turnbull, Robertson and Richard, JJ.A.

February 23, 2012.

Summary:

Résumé:

Canada Post hired ergonomic paid assistants for its unionized rural and suburban mail carriers. The carriers used their own vehicles to deliver mail to roadside mailboxes, but the assistants sat in the passenger seat and placed the mail in the mailboxes. Carroll, an assistant, was injured on the job. The Appeals Tribunal of the Workplace Health, Safety and Compensation Commission ruled that Carroll was an "employee" entitled to benefits, not an "independent contractor". Canada Post appealed, arguing that (1) the Tribunal's decision that ergonomic paid assistants were "employees" was unreasonable; (2) the Tribunal erred in law in narrowing the statutory scope of "employee", and (3) the Tribunal breached the duty of fairness by failing to consider tribunal decisions from Manitoba and British Columbia, both decisions submitted to the Tribunal after the hearing but before a decision was rendered. Those decisions found that the assistants in those cases (replacement drivers for the carriers) were independent contractors not eligible for workers' compensation benefits.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - At issue before the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission was whether a Canada Post "ergonomic paid assistant" was an "employee" entitled to workers' compensation benefits or an "independent contractor" not entitled to benefits - After the hearing, but before the Tribunal rendered its formal decision, Canada Post forwarded to the Tribunal two tribunal decisions from other jurisdictions which supported the other authorities Canada Post relied on - The Tribunal advised that it would not consider the two decisions, as the Tribunal had already reached its decision immediately following the hearing - Canada Post argued that the Tribunal breached its duty of fairness by not considering the two decisions - The New Brunswick Court of Appeal, in rejecting the submission, stated that "Canada Post did not ask the Tribunal to reopen the hearing for purposes of making oral submissions tied to the two administrative law decisions. Nor did Canada Post ask that it be provided with the opportunity to file a written submission addressing the decisions. ... the two cases cited to the Commission are non-binding and do not signify a significant or fundamental change in the law, as would be true had the Supreme Court of Canada released a decision following the hearing of the administrative law appeal. ... the two administrative law decisions simply add weight to and support arguments which Canada Post had advanced before the Appeals Tribunal based on decisions of the Tax Court, which decisions the Appeals Tribunal acknowledged in its reasons. Finally, as this court is in a position to reflect on the precedential significance of the two administrative law decisions, because of the application of the correctness review standard, it is unnecessary for the court to engage in a thorough analysis of the following jurisprudence" - See paragraphs 23 to 24.

Government Programs - Topic 3622

Federal employees' compensation - Entitlement - Federal v. provincial legislation - [See Government Programs - Topic 3665 ].

Government Programs - Topic 3665

Federal employees' compensation - Administration - Jurisdiction of provincial tribunal - The federal Crown, rather than establishing its own workers' compensation scheme for employees of the federal government and federal Crown corporations (including Canada Post), effected compensation through the use of provincial workers' compensation tribunals pursuant to the Government Employees Compensation Act (GECA) - The New Brunswick Court of Appeal held that the New Brunswick Workers' Health, Safety and Compensation Tribunal had jurisdiction to determine whether "ergonomic paid assistants", hired by Canada Post to assist suburban and rural mail carriers, were "employees" under the GECA and accordingly eligible to receive workers' compensation benefits for injury on the job - The court stated that "it is the obligation of each provincial commission and appeals tribunal to adjudicate on the matter of a claimant's employment status" - See paragraph 7.

Master and Servant - Topic 308

Nature of relationship - Contract of service and contract for services distinguished - [See Workers' Compensation - Topic 5 ].

Workers' Compensation - Topic 5

Definitions - Worker defined - Canada Post hired ergonomic paid assistants for its unionized rural and suburban mail carriers - The carriers used their own vehicles to deliver mail to roadside mailboxes, but the assistants sat in the passenger seat and placed the mail in the mailboxes - Carroll, an assistant, was injured on the job - She was paid an hourly rate, with no benefits and no deductions for employment insurance, income tax, etc. - The Appeals Tribunal of the Workplace Health, Safety and Compensation Commission ruled that Carroll was an "employee" entitled to benefits, not an "independent contractor" - Canada Post appealed, arguing that the Tribunal's decision was unreasonable - The New Brunswick Court of Appeal dismissed the appeal - The court stated that "in brief, the Tribunal's reasoning that led to the finding the claimant was not carrying on business on her own account, but rather was engaged as a casual or part-time employee being by Canada Post at an hourly rate of $12, falls within the description of reasonableness as articulated in Dunsmuir ... This finding is entirely consistent with the Tribunal's express finding that no apparent advantage would have accrued to the claimant had she been declared an independent contractor. As the Appeals Tribunal so adroitly observed, it is unlikely the claimant's work as a paid assistant qualified as a 'marketable skill'. If one is going to argue the common law notion of 'independent contractor' to sustain a finding that a worker is self-employed, the argument must have an air of reality - one that is informed by the underlying and general assumption that the independent contractor has more to gain as an entrepreneur than as an employee." - It was reasonable to find that the assistant was not carrying on business for herself - The control test favoured finding her an employee - The assistant's services "are not marketable to others" and "the facts of the case reveal a part-time worker who is economically dependent on one employer" - See paragraphs 10, 48 to 72.

Workers' Compensation - Topic 1061

Boards - Jurisdiction - General - [See Government Programs - Topic 3665 ].

Workers' Compensation - Topic 5567

Compensation - Persons entitled - Employees - Federal employees - [See Government Programs - Topic 3665 ].

Workers' Compensation - Topic 5567

Compensation - Persons entitled - Employees - Federal employees - Canada Post hired ergonomic paid assistants for its unionized rural and suburban mail carriers - The carriers used their own vehicles to deliver mail to roadside mailboxes, but the assistants sat in the passenger seat and placed the mail in the mailboxes - Carroll, an assistant, was injured on the job - The Appeals Tribunal of the Workplace Health, Safety and Compensation Commission ruled that Carroll was an "employee" entitled to benefits, not an "independent contractor" - Canada Post appealed, arguing that the Appeals Tribunal erred in failing to take into account the intention of the parties - The New Brunswick Court of Appeal stated that "while there is judicial support for the proposition that the common intention of employer and worker is a relevant consideration when determining employment status, in truth, there is no compelling evidence of such an intention in the present case. Rather, Canada Post is attempting to establish than an employer's unilateral declaration to treat workers as non-employees is a relevant consideration. ... The Appeals Tribunal declared such evidence to be largely 'self serving' and I am not prepared to declare it erred in so doing" - The court stated that "evidence showing that the employer has consistently treated a worker as a non-employee is not evidence of a common intention" - The wording on the back of vouchers used by the assistants to get paid (stated that assistants were independent contractors) likewise expressed Canada Post's intention, but was also not evidence of a common intention that assistants were independent contractors rather than employees - See paragraphs 9, 42 to 47.

Workers' Compensation - Topic 7086.1

Practice - Appeals to courts - Scope of appeal or review - An employer appealed a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission - The New Brunswick Court of Appeal stated that standard of review as follows: "this court has, from the outset, applied the correctness standard of review to questions of law and jurisdiction. ... tribunal decisions involving a question of mixed law and fact (the application of an analytical framework to unchallenged primary findings of fact) must be accorded deference on the standard of reasonableness ... Questions of fact are reviewable on the standard of palpable and overriding error." - See paragraphs 19, 22.

Accidents du travail - Cote 5

Définitions - Définition du terme "employeur" - [Voir Workers' Compensation - Topic 5 ].

Accidents du travail - Cote 1061

Commissions - Compétence - Généralités - [Voir Workers' Compensation - Topic 1061 ].

Accidents du travail - Cote 5567

Indemnisation - Personnes qui y ont droit - Employés - Employés fédéraux - [Voir Workers' Compensation - Topic 5567 ].

Accidents du travail - Cote 7086.1

Procédure - Appels devant les tribunaux judiciaires - Portée de l'appel ou de la révision - [Voir Workers' Compensation - Topic 7086.1 ].

Droit administratif - Cote 2266

Justice naturelle - Devoir d'équité - Équité procédurale - En quoi consiste - [Voir Administrative Law - Topic 2266 ].

Employeurs et employés - Cote 308

Nature de la relation - Distinction entre un contrat de travail et un contrat d'entreprise - [Voir Master and Servant - Topic 308 ].

Programmes gouvernementaux - Cote 3622

Indemnisation des agents de l'état fédéral - Droit - Loi fédérale ou loi provinciale - [Voir Government Programs - Topic 3622 ].

Programmes gouvernementaux - Cote 3665

Indemnisation des agents de l'état fédéral - Administration - Compétence du tribunal provincial - [Voir Government Programs - Topic 3665 ].

Cases Noticed:

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 2].

Joey's Delivery Service v. Workplace Health, Safety and Compensation Commission (N.B.) (2001), 239 N.B.R.(2d) 300; 619 A.P.R. 300; 2001 NBCA 17, leave to appeal denied (2002), 286 N.R. 400; 250 N.B.R.(2d) 400; 650 A.P.R. 400 (S.C.C.), refd to. [para. 2].

Canadian Broadcasting Corp. v. Luo et al. (2009), 273 B.C.A.C. 203; 461 W.A.C. 203; 2009 BCCA 318, refd to. [para. 7].

Thomson v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2002), 205 N.S.R.(2d) 55; 643 A.P.R. 55; 2002 NSCA 58, refd to. [para. 7].

Cape Breton Development Corp. v. Morrison Estate et al. (2003), 218 N.S.R.(2d) 53; 687 A.P.R. 53; 2003 NSCA 103, refd to. [para. 7].

Rees v. Royal Canadian Mounted Police et al. (2005), 246 Nfld. & P.E.I.R. 79; 731 A.P.R. 79; 2005 NLCA 15, refd to. [para. 7].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 7].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

Lanteigne v. Workmen's Compensation Board (N.B.) (1973), 7 N.B.R.(2d) 36 (C.A.), refd to. [para. 19].

Crothers and Sussex Farm & Garden Ltd. v. Martin and Ascon Ltd. and Workers' Compensation Board (N.B.) (1982), 44 N.B.R.(2d) 59; 116 A.P.R. 59 (C.A.), refd to. [para. 19].

Spellman v. Gulf Operators Ltd. et al. (1994), 143 N.B.R.(2d) 382; 366 A.P.R. 382 (C.A.), refd to. [para. 19].

Martin v. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail (N.-B.) (1998), 205 N.B.R.(2d) 319; 523 A.P.R. 319 (C.A.), refd to. [para. 19].

Gallant v. Workplace Health, Safety and Compensation Commission (N.B.) (2000), 228 N.B.R.(2d) 98; 588 A.P.R. 98 (C.A.), refd to. [para. 19].

Keddy v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2002), 247 N.B.R.(2d) 284; 641 A.P.R. 284 (C.A.), refd to. [para. 20].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 21].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Brun v. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail (N.-B.) (1996), 183 N.B.R.(2d) 172; 465 A.P.R. 172 (C.A.), refd to. [para. 22].

VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2011), 376 N.B.R.(2d) 292; 970 A.P.R.292; 2011 NBCA 76, refd to. [para. 22].

Stewart v. Workplace Health, Safety and Compensation Commission (N.B.) (2008), 331 N.B.(2d) 278; 849 A.P.R. 278; 2008 NBCA 45, refd to. [para. 22].

Saint John (City) v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2008), 338 N.B.R.(2d) 213; 866 A.P.R. 213; 2008 NBCA 83, refd to. [para. 22].

New Brunswick Power Generation Corp. v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2011), 374 N.B.R.(2d) 230; 965 A.P.R. 230; 2011 NBCA 47, refd to. [para. 22].

Mattina v. Workplace Health, Safety and Compensation Commission (N.B.) (2005), 279 N.B.R.(2d) 104; 732 A.P.R. 104; 2005 NBCA 8, refd to. [para. 24].

Canada (Attorney General) v. Levac et al. (1992), 145 N.R. 369 (F.C.A.), refd to. [para. 24].

Mladenov v. Minister of Employment and Immigration (1993), 74 F.T.R. 161 (T.D.), refd to. [para. 24].

Vairavanathan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1025 (T.D.), refd to. [para. 24].

1247550 Ltd. v. Ontario (Minister of the Environment), [2008] O.E.R.T.D. No. 42, refd to. [para. 24].

Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2004), 224 N.S.R.(2d) 276; 708 A.P.R. 276; 2004 NSCA 83, refd to. [para. 26].

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels - les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 30].

Hutchison v. Imperial Taxi Brandon (1983) Ltd. (1987), 50 Man.R.(2d) 81 (C.A.), refd to. [para. 30].

Canada Post Corp. v. Canadian Union Of Postal Workers et al. (1987), 82 N.R. 249 (F.C.A.), refd to. [para. 32].

Plant v. Minister of National Revenue, 2007 TCC 453, refd to. [para. 33].

Laperrière v. Minister of National Revenue, 2007 TCC 252, refd to. [para. 34].

918855 Ontario Ltd. v. Minister of National Revenue, [1997] T.C.J. No. 664, refd to. [para. 40].

Skipsey v. Minister of National Revenue, 2007 TCC 192, refd to. [para. 40].

Royal Winnipeg Ballet v. Minister of National Revenue (2006), 346 N.R. 276; 2006 FCA 87, refd to. [para. 43].

Wolf v. Minister of National Revenue (2002), 288 N.R. 67; 2002 FCA 96, refd to. [para. 44].

Prue v. Minister of National Revenue, 2011 TCC 9, refd to. [para. 44].

Smith v. Minister of National Revenue, 2011 TCC 20, refd to. [para. 44].

Combined Insurance Co. of America v. Minister of National Revenue et al. (2007), 359 N.R. 358; 2007 FCA 60, refd to. [para. 44].

Stevedoring & Haulage Services Ltd. v. Fuller & Ors., 2011 EWCA Civ. 651, refd to. [para. 47].

Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553; 70 N.R. 214 (F.C.A.), refd to. [para. 49].

Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 (P.C.), refd to. [para. 50].

Market Investigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 (Q.B.D.), refd to. [para. 50].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 63].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206, refd to. [para. 63].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 64].

Authors and Works Noticed:

Adams, G.W., Towards a New Vitality: Reflections on 20 Years of Collection Bargaining Regulation (1993), 23 Ottawa L. Rev. 139, generally [para. 57].

Barnacle, Peter, and Wood, Roderick, Employment Law in Canada (2005), pp. 2-3 [para. 53]; 2-7 [para. 30]; 2-15 [paras. 44, 47]; 2-28 [para. 60].

Fudge, Judy, Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope of Labour Regulation (2006), 44 Osgoode Hall L.J. 609, generally [para. 57].

Fudge, Judy, New Wine into Old Bottles?: Updating Legal Forms to Reflect Changing Employment Norms (1999), 33 U.B.C.L. Rev. 129, generally [para. 57].

Counsel:

Avocats:

Rebekah L. Powell, for the appellant, Canada Post Corp.;

Edith Carroll, respondent, appeared in person;

David O'Brien, Q.C., for the Workplace Health, Safety and Compensation Commission.

This appeal was heard on November 15, 2011, before Turnbull, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal.

On February 23, 2012, Robertson, J.A., delivered the following judgment in both official languages for the Court.