This was another "independent contractor" case: If the taxi driver was an employee, the cab corporation had to pay a share of his CPP and EI and he qualified for EI. Justice Miller decided Mr. Dickey (the driver) was not an employee.
Despite what Justice Miller said about examining the facts, these cases are always hard to call. But the issues may be few: "the main factor to distinguish employment from independent contractor in these types of cases are control, chance of profit and risk of loss." (Para. 21) "[O]ne might think a huge factor in the taxi business is the ownership of the taxi – a strong indication the non-owner driver is just an employee." But, then he summarized 6 cases to show that ownership is not a factor for taxi driver cases.
As Justice Miller said (and is true for all these employee-contractor cases):
" In evaluating the factors to distinguish employment from independent contractor, it will seldom be the case that all factors point overwhelmingly in one direction. There would be no need for a trial of the issue. It will more often be the situation where some factors might point one way and other factors another way. Some factors may be neutral. It is always necessary to bear in mind what the analysis is addressing – whose business is it? There is no magic formula. There is seldom a bright line. It is a matter of degree, and as that degree narrows, so too does the distinction: the expression "dependent contractor" comes to mind."
Still Miller J. concluded that the risk of loss and the chance of profit weren't important in this case. Reviewing the facts on "control" (i.e., whether Mr. Dickey was independent or "controlled" as an employee), the judge noted these all showed independence:
- Mr. Dickey could drive for other owners;
- Neither Mr. Gill [the cab owner] nor COOT [the dispatcher] had any means of monitoring Mr. Dickey while on the job;
- Mr. Gill had virtually no contact with Mr. Dickey in 2011;
- Mr. Dickey could drive the hours he pleased; he did not have to work a full shift;
- Mr. Dickey could take breaks when he pleased;
- Mr. Dickey kept control of the vehicle as long as he had consecutive shifts;
- Mr. Dickey created the trip sheets;
- Mr. Dickey could run personal errands while on a shift;
- While there was a Handbook it was not rigidly enforced and went more to the well being of the taxi operation generally than the control of the drivers;
- Mr. Dickey was not instructed where to drive;
- Mr. Dickey was not told where he could or could not work;
- Mr. Dickey could find someone to substitute for him on a shift. (Para. 24.)
See 2177936 Ontario Ltd. v. M.N.R., (2013 TCC C. Miller)