Dynamex Canada Inc. v. Mamona et al., 2003 FCA 248

• Judge: Décary, Linden and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 09, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FCA 248;(2003), 305 N.R. 295 (FCA)

Dynamex Can. Inc. v. Mamona (2003), 305 N.R. 295 (FCA)

MLB headnote and full text

Temp. Cite: [2003] N.R. TBEd. JN.023

Dynamex Canada Inc. (appellant/applicant) v. Adele Victoria Mamona, Randolph William Hepner, Robert Philip Cyr and Attorney General of Canada (respondents/respondents)

(A-241-02; 2003 FCA 248)

Indexed As: Dynamex Canada Inc. v. Mamona et al.

Federal Court of Appeal

Décary, Linden and Sharlow, JJ.A.

June 4, 2003.

Summary:

Dynamex Canada Inc. was in the delivery and courier business. The respondents pro­vided courier, messenger and delivery ser­vices pursuant to contracts with Dynamex. The respondents asserted claims under the Canada Labour Code for vacation and holi­day pay on the basis that they were employees of Dynamex and not independent contractors. A referee appointed under the Canada Labour Code upheld an inspector's finding that the respondents were employees of Dynamex rather than independent contrac­tors and that the respondents were therefore entitled to holiday and vacation pay. Dyna­mex applied for judicial review of the refer­ee's decision.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 218 F.T.R. 269, dismissed the application. Dynamex appealed.

The Federal Court of Appeal dismissed the appeal.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - Dyna­mex was in the delivery and courier business - The claimants provided courier, messenger and delivery services pursuant to contracts with Dynamex - A referee appointed under the Canada Labour Code found that the claimants were employees of Dynamex rather than independent con­tractors and that they were therefore entitled to holiday and vacation pay - Dynamex applied for judicial review of the referee's decision - The Federal Court of Appeal affirmed a dismissal of the applica­tion - The referee recognized that some factors favoured the conclusion that the claimants were employees and some fac­tors did not - He concluded that, on bal­ance, the claimants were employees - His decision was reasonable - The fact that the claimants' contracts with Dynamex described them as independent contractors, and the fact that the claimants had filed income tax returns on the basis that they were self-employed, was not determinative.

Master and Servant - Topic 8344.2

Employment and labour standards - Juris­diction and powers of director, tribunal, referees or officers - Judicial review - Standard of review - A referee appointed under the Canada Labour Code found that the claimants were employees of a delivery and courier company rather than indepen­dent contractors and that they were there­fore entitled to holiday and vacation pay - The Federal Court of Appeal considered the standard of review to be applied on an application for judicial review of the refer­ee's decision - The court held that the referee's determina­tion as to the common law principles applicable to the determina­tion of the status of a person as an employee should be reviewed on the stan­dard of correctness because it was a ques­tion of law of a kind that was normally considered by the courts, and was not a question that engaged the special expertise of a referee - However, the court held that the manner in which those principles were applied to the facts, which was a question of mixed law and fact, was to be reviewed on a standard of reasonableness - See paragraph 45.

Master and Servant - Topic 8349.1

Employment and labour standards - Juris­diction and powers of director, tribunal, referees or officers - To determine who is an employee - [See Master and Servant -Topic 303 ].

Cases Noticed:

Bissett et al. v. Canada (Minister of Labour) et al., [1995] 3 F.C. 762; 102 F.T.R. 172 (T.D.), refd to. [para. 19].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 20].

Syndicat national des employés de la Com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 21].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al., [2001] 2 S.C.R. 565; 272 N.R. 201, refd to. [para. 24].

Barrie Public Utilities et al. v. Canadian Cable Television Association (2003), 304 N.R. 1 (S.C.C.), refd to. [para. 25].

Piedmont Airlines Inc. v. United Steel­workers of America, Transportation Com­munications Amalgamated Local 1976 et al. (2003), 303 N.R. 40 (F.C.A.), refd to. [para. 26].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 27].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38 (S.C.C.), refd to. [para. 39].

United Steelworkers of America, Local 14097 v. Domgroup Ltd. et al. (1990), 42 O.A.C. 1; 75 O.R.(2d) 382 (C.A.), refd to. [para. 40].

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 (C.A.), 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. 41].

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, refd to. [para. 41].

Wolf v. Minister of National Revenue, [2002] 4 F.C. 396; 288 N.R. 67 (F.C.A.), refd to. [para. 42].

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].

Hutchison v. Imperial Taxi Brandon (1983) Ltd. (1987), 50 Man.R.(2d) 81; 46 D.L.R.(4th) 310 (C.A.), refd to. [para. 49].

Authors and Works Noticed:

Canadian Labour Law Reporter, p. 6205, ¶5105 [para. 31].

Counsel:

Guy Dussaul, for the appellant;

Mel Myers, for the respondents, Mamona and Hepner;

Robert Philip Cyr, on his own behalf;

Sid Restall, for the respondent, Attorney General of Canada.

Solicitors of Record:

Flynn, Rivard, Quebec, Quebec, for the appellant;

Myers Weinberg, Winnipeg, Manitoba, for the respondents, Mamona and Hepner;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This appeal was heard on April 9, 2003, at Winnipeg, Manitoba, before Décary, Linden and Sharlow, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharlow, J.A., on June 4, 2003.