Hollander v. Tiger Courier Inc., (2012) 388 Sask.R. 294 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 06, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 388 Sask.R. 294 (QB);2012 SKQB 5

Hollander v. Tiger Courier Inc. (2012), 388 Sask.R. 294 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. JA.021

John Den Hollander (plaintiff) v. Tiger Courier Inc. (defendant)

(2005 Q.B.G. No. 85; 2012 SKQB 5)

Indexed As: Hollander v. Tiger Courier Inc.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Acton, J.

January 6, 2012.

Summary:

The plaintiff employee sued the defendant employer for wrongful dismissal. He applied for summary judgment. The employer requested that the action be dismissed.

The Saskatchewan Court of Queen's Bench dismissed the application and dismissed the action.

Master and Servant - Topic 305

Nature of relationship - "Independent" and "dependent" contractor distinguished - The plaintiff was a 54-year-old man who worked as an employee of the defendant from December 1990 until January 29, 2001 when employees were required to enter into an independent contract agreement - On May 5, 2004, a package arrived at the defendant's premises accompanied by a bill of lading with the plaintiff's name on it - The package contained several bags of marijuana - The plaintiff denied having done anything to ask that the box be sent to him and denied knowledge of its contents - The plaintiff was advised by the police during the investigation of May 5, 2004 that he was being terminated - The following morning the General Manager of the defendant telephoned the plaintiff and told him not to come to work - The defendant provided the plaintiff with no work after May 5, 2004 - The plaintiff sued the defendant for wrongful dismissal - At issue, inter alia, was whether the plaintiff was an independent contractor, and as such, not entitled to damages - The Saskatchewan Court of Queen's Bench held that it was apparent that the plaintiff was an independent contractor - The agreement referred to him as an independent contractor - He provided his own vehicle - He provided his own employees, if any - He provided his own schedule - He was responsible for his own and his employees' workers' compensation and payroll deductions and was paid per parcel - He filed his tax returns showing self-employed business income, claiming deductions for such items as advertising, insurance, motor vehicle expenses, office supplies, professional fees, salaries and wages as well as telephone charges - In the result, the court dismissed the plaintiff's action - See paragraphs 18 to 21.

Master and Servant - Topic 1222

Contract of hiring (employment contract) - Termination - Whether cause required - The plaintiff was a 54-year-old man who worked as an employee of the defendant from December 1990 until January 29, 2001 when employees were required to enter into an independent contract agreement - On May 5, 2004, a package arrived at the defendant's premises accompanied by a bill of lading with the plaintiff's name on it - The package contained several bags of marijuana - The plaintiff denied having done anything to ask that the box be sent to him and denied knowledge of its contents - The plaintiff was advised by the police during the investigation of May 5, 2004 that he was being terminated - The following morning the General Manager of the defendant telephoned the plaintiff and told him not to come to work - The defendant provided the plaintiff with no work after May 5, 2004 - The plaintiff sued the defendant for wrongful dismissal - The Saskatchewan Court of Queen's Bench held that the defendant had cause to terminate the contract - Marijuana was a controlled substance pursuant to the Controlled Drugs and Substances Act - The facilitation of the transportation of an illegal substance through the defendant's infrastructure was a criminal offence - "To allow such activity could destroy the defendant's business and lead to criminal charges against it" - The fact that the plaintiff was the addressed recipient and the parcel was from an immediate family member constituted sufficient just cause for termination of the contract - In the result, the court dismissed the plaintiff's action - See paragraphs 22 to 32.

Master and Servant - Topic 1230

Contract of hiring (employment contract) - Termination - Notice of termination - By employer - The plaintiff was a 54-year-old man who worked as an employee of the defendant from December 1990 until January 29, 2001 when employees were required to enter into an independent contract agreement - On May 5, 2004, a package arrived at the defendant's premises accompanied by a bill of lading with the plaintiff's name on it - The package contained several bags of marijuana - The plaintiff denied having done anything to ask that the box be sent to him and denied knowledge of its contents - The plaintiff was advised by the police during the investigation of May 5, 2004 that he was being terminated - The following morning the General Manager of the defendant telephoned the plaintiff and told him not to come to work - The defendant provided the plaintiff with no work after May 5, 2004 - The plaintiff sued the defendant for wrongful dismissal - At issue was, inter alia, whether verbal notification of the plaintiff was sufficient to bring the agreement to an end - The Saskatchewan Court of Queen's Bench held that written notice was not required to ensure actual knowledge of termination - The written notice required under the terms of the agreement was to ensure that such notice was received by the other party and to prevent one party from taking unilateral action without actual notification to the other - The plaintiff was aware that his employment had been terminated as of 7:45 a.m. on May 6, 2004 when he received the telephone call from the General Manager of the defendant - In the result, the court dismissed the plaintiff's action - See paragraphs 33 to 35.

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. 18].

Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553; 70 N.R. 214; 5 W.W.R. 450 (F.C.A.), refd to. [para. 19].

Minard (TM) Trucking Ltd. v. Sass (2004), 252 Sask.R. 144; 2004 SKQB 333, refd to. [para. 20].

McCarthy v. Amiss (1997), 14 R.P.R.(3d) 27 (B.C.S.C.), refd to. [para. 34].

Rock v. Foster (1988), 1 R.P.R.(2d) 55 (Ont. H.C.), refd to. [para. 34].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal (1989), Looseleaf, pp. 3-96.1, 3-97 [para. 29].

Counsel:

Michael W. Owens, for the plaintiff;

Timothy P. Hawryluk, for the defendant.

This application was heard by Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on January 6, 2012.