Case information

Administrative law — Boards and tribunals — Employment Standards Tribunal — Judicial review — Standard of review — Employment law — Status of worker — Interpretation of employment standards legislation — Whether taxi drivers should be considered employees of businesses operating taxis — Whether determining whether administrative proceeding is barred by res judicata is question of central importance to legal system — If so, whether it can be reviewed on standard other than correctness — Whether administrative decision-maker is required to engage in exercise of statutory interpretation to interpret the scope of its own authority — Whether patent unreasonableness standard of review requires judicial reinterpretation — Whether law of Canada includes test to differentiate employee from independent contractor or non-worker — Whether object of employment standards legislation is to grant employee status to as many people as possible — How status of employment standards as “program legislation” affects its interpretation.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In Vancouver, Black Top and Checker Cab brands are owned and operated by shareholders of Black Top Cabs Ltd., which holds taxi licences on their behalf. Black Top is also the sole shareholder of Beach Place Ventures, which provides administration, accounting and dispatch services to the taxis. The taxis can be driven by the owner, but the owner can allow a “lease driver” to operate the taxi in exchange for rent or can allow a “spare driver” to operate the taxi for a period of time in exchange for a fee. A spare driver who had previously filed his tax returns on the understanding that he was an independent contractor filed his 2014 tax return on the understanding that he was an employee. After an injury the following year, he applied for employment insurance benefits. The CRA determined that he had been an employee throughout. The Minister appealed.

Meanwhile, the driver filed a complaint with the Employment Standards Tribunal alleging that Beach Place and Black Top had breached the Employment Standards Act, R.S.B.C. 1996, c. 113 (“ESA”). A delegate of the Director of Employment Standards concluded that he was an employee, but did not specify whether his employer was Black Top or Beach Place. The Tribunal allowed an appeal and remitted the matter to the Director for a re-hearing or a fresh investigation. The complaint was then amalgamated with two similar complaints made by another spare driver and a lease driver with a half-interest in the cab he drove. The delegate found that the factors set out in the case law and the ESA indicated that the complainants were “employees” of both Beach Place and Black Top. Beach Place and Black Top appealed to the Appeal Tribunal.

After argument but before the matter was decided, the Tax Court allowed the earlier appeal, concluding that, at the material time, the first spare driver was engaged in his own business venture, not an employee: 2019 TCC 24. A further appeal was abandoned.

The Tribunal received the Tax Court’s reasons but did not request further. It affirmed the delegate’s decision as to employment status: 2019 BCEST 23. Beach Place and Black Top then applied for reconsideration. The appeal decision was affirmed: 2019 BCEST 61. In its decision, the reconsideration panel refused to apply res judicata based on the Tax Court decision. Beach Place and Black Top then sought, inter alia, judicial review and an order in the nature of certiorari quashing two of the Tribunal’s decisions. The stay was granted pending the outcome of the judicial review.

The petition for judicial review was dismissed, as was a subsequent appeal.