Director of Labour Standards (Sask.) v. Acanac Inc. et al., 2013 SKQB 21

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 18, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 21;(2013), 411 Sask.R. 306 (QB)

Labour Standards Dir. v. Acanac Inc. (2013), 411 Sask.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. FE.012

The Director of Labour Standards (on behalf of Tomas Sabau) (appellant) v. Acanac Inc., Melvin Cohen, Don Cavanagh and Les Lorincz (respondents)

(2012 Q.B. No. 1296; 2013 SKQB 21)

Indexed As: Director of Labour Standards (Sask.) v. Acanac Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

January 18, 2013.

Summary:

Acanac hired Sabau as a technical representative. When the employment relationship ended, Sabau complained to the Director of Labour Standards. The Director conducted a wage assessment and found that Acanac owed Sabau over $6500 as an employee. An adjudicator found that Sabau was an independent contractor and set aside the wage assessment. The Director appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - [See Master and Servant - Topic 8312 ].

Master and Servant - Topic 8312

Employment and labour standards - General - Employee - What constitutes - Acanac was a company that provided internet services - Acanac hired Sabau as a technical representative at an initial rate of $10 per hour - He was given minimal training - He worked from home using his own computer and answered calls from customers who were having trouble accessing Acanac's system - There was minimal monitoring, but Acanac would step in if a technical representative consistently took too long to solve problems - Sabau had signed an undated independent contractors agreement (ICA) - When the employment relationship ended, Sabau complained to the Director of Labour Standards - The Director conducted a wage assessment and determined that Acanac owed Sabau over $6500 as an employee pursuant to the Labour Standards Act - An adjudicator found that Sabau was an independent contractor and set aside the wage assessment - The Director appealed - The Saskatchewan Court of Queen's Bench allowed the appeal and reinstated the wage assessment - The existence of an ICA was not conclusive - The evidence respecting the ICA was incomplete - The court applied the fourfold test of control, ownership of tools, chance of profit and risk of loss - Geographic distance did not demonstrate a lack of control - The fact that Sabau did not require much coaching did not indicate a lack of control by Acanac - The true "tool" was Acanac's system - Acanac set the pricing for Sabau's technical expertise, and it was Acanac's customers who phoned in - Sabau's only risk of loss was a loss of his position - The ability to work as many hours as he wished and to subcontract did not constitute a "chance for profit" - Sabau was, in real terms, an employee of Acanac - See paragraphs 54 to 88.

Master and Servant - Topic 8344.2

Employment and labour standards - Jurisdiction and powers of director, tribunal, referees or officers - Judicial review - Standard of review - Acanac hired Sabau as a technical representative - When the employment relationship ended, Sabau complained to the Director of Labour Standards - The Director conducted a wage assessment and found that Acanac owed Sabau over $6500 as an employee - An adjudicator found that Sabau was an independent contractor and set aside the wage assessment - The Director appealed - The Saskatchewan Court of Queen's Bench allowed the appeal - The court reviewed the case law dealing with the standard of review for debates concerning employer-employee relationships and found that the appropriate standard of review was reasonableness - See paragraphs 27 to 37.

Cases Noticed:

Director of Labour Standards (Sask.) v. DJB Transportation Services Inc. et al. (2010), 350 Sask.R. 217; 487 W.A.C. 217; 2010 SKCA 50, refd to. [para. 27].

Baird v. Lawson (1996), 146 Sask.R. 273 (Q.B.), refd to. [para. 30].

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. 31].

Group Medical Services v. Director, Labour Standards Branch (Sask.) (2007), 303 Sask.R. 168; 2007 SKQB 345, refd to. [para. 32].

Boisjoli v. Knights of Columbus, [2010] 3 W.W.R. 250; 262 Man.R.(2d) 35; 507 W.A.C. 35; 2010 MBCA 110, refd to. [para. 34].

Dynamex Canada Inc. v. Mamona et al. (2003), 305 N.R. 295; 229 D.L.R.(4th) 463; 2003 FCA 248, refd to. [para. 35].

Public Service Alliance of Canada et al. v. Canada (Attorney General) (2009), 385 N.R. 180; 2009 FCA 6, refd to. [para. 36].

Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553; 70 N.R. 214; [1986] 5 W.W.R. 450, (F.C.A.), appld. [para. 45].

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. 45].

Royal Winnipeg Ballet v. Minister of National Revenue (2006), 346 N.R. 276; 264 D.L.R.(4th) 634; 2006 FCA 87, refd to. [para. 48].

HMI Industries Inc. v. Santos, [2010] Q.J. No. 2579; 2010 QCCA 606, refd to. [para. 49].

Pennock v. United Farmers of Alberta Co-Operative Ltd., [2006] A.R. Uned. 656; 54 C.C.E.L.(3d) 239; 2006 ABQB 716, varied on other grounds (2008), 433 A.R. 285; 429 W.A.C. 285; 296 D.L.R.(4th) 239; 2008 ABCA 278, refd to. [para. 49].

Walden v. Danger Bay Productions Ltd. et al., [1994] 6 W.W.R. 138; 42 B.C.A.C. 196; 67 W.A.C. 196; 114 D.L.R.(4th) 85, refd to. [para. 49].

Alberta Permit Pro et al. v. Booth et al., [2008] 2 W.W.R. 550; 442 A.R. 1; 2007 ABQB 562, affd., [2009] 6 W.W.R. 599; 460 A.R. 129; 462 W.A.C. 129; 2009 ABCA 146, refd to. [para. 49].

Stevenson Jordan and Harrison Ltd. v. MacDonald and Evans, [1952] 1 T.L.R. 101 (C.A.), refd to. [para. 50].

Co-operators Insurance Association v. Kearney, [1965] S.C.R. 106; 48 D.L.R.(2d) 1, refd to. [para. 51].

Montreal v. Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161; [1946] 3 W.W.R. 748 (P.C.), refd to. [para. 53].

Warren v. 622718 Saskatchewan Ltd. et al. (2004), 252 Sask.R. 290; 2004 SKQB 346, refd to. [para. 57].

Laurent et al. v. Théoret; Laurent et al. v. Hôpital Notre-Dame de l'Espérance, [1978] 1 S.C.R. 605; 17 N.R. 593, refd to. [para. 64].

Authors and Works Noticed:

Neumann, Peter, and Sack, Jeffrey, eText on Wrongful Dismissal and Employment Law (1st Ed. 2012), generally [para. 44].

England, Geoff, Christie, Innis, and Wood, Roderick, Employment Law in Canada (4th Ed. 2005) (Looseleaf), para. 2.21 [para. 49].

Fleming, John G., The Law of Torts (2nd Ed. 1961), pp. 328, 329 [para. 51].

Khan, A.N., Who is a Servant? (1979), 53 Austr. L.J. 832, p. 834 [para. 52].

Counsel:

Meghan R. McAvoy, for the appellant;

Gerald Matlofsky, for the respondents.

This appeal was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on January 18, 2013.