Canadian Employment Law Today

Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, a Thomson Reuters business 2014 No workers' compensation for independent contractor AN ONTARiO newspaper delivery per- son was an independent contractor and not an employee, the Ontario Workplace Safety and Insurance Tribunal has ruled. e worker started working in 1998 as a driver delivering newspapers and fli- ers for the company. e worker signed a distribution agreement with the intention of signing a new one every year. is con- tinued until 2007, when she didn't sign an agreement but continued working. She also didn't sign a distribution agreement in 2008, when she also started working as a part-time school bus driver. e worker owned a cargo van with which she delivered papers and was re- sponsible for its commercial licence and gas, unless it exceeded a certain price, at which point the employer would subsidize her. She had a supervisor but only consult- ed with him when she needed something. In February 2008, the worker in her bus driver position when she slipped on some ice, injuring her head and back. She was un- able to drive and her licence was revoked for three months. e worker found some- one to take over delivering the newspapers until she was able to return to work. Once she was able to deliver papers, she asked the company to reduce the size of the bundles to ensure she didn't reinjure herself. In November 2008, the Ontario Work- place Safety and Insurance Board (WSIB) determined she was an independent opera- tor, but the worker requested the newspa- per publisher accommodate her by reduc- ing the size of her newspaper bundles. In early 2009, the company provided the worker with a new distribution agreement, but the worker refused to sign it until after she consulted with her lawyer. e com- pany withdrew the agreement and termi- nated the contractual relationship. is had a significant impact for the worker, who later won loss-of-earnings benefits for her injury, which was now calculated only from her earnings as a bus driver and not her newspaper delivery job. e worker appealed to the WSIB ap- peals resolution officer, which agreed with the WSIB as she had filled out the board's general questionnaire with responses that confirmed she was an independent opera- tor under a contract for service. e worker appealed again to the Work- place Safety and Insurance Appeals Tri- bunal, arguing her contract of service was more characteristic of an employment re- lationship. She took instructions on where and how to deliver the newspapers and the company decided on when she had to make the deliveries. e tribunal found that while the com- pany dictated the hours and how she did the job, the worker had control over most aspects of her work. She used her own van, didn't wear a uniform, didn't have a com- pany logo, nor did she identify herself as an employee. She also turned down extra delivery tasks that were offered to her and she had the option of working other jobs when her delivery was done – as with the bus driving position. It was also noted that the didn't have statutory deductions taken from her pay- cheque and her accountant listed her as self-employed. e tribunal also found the distribution agreement clearly indicated the worker was hired under a contract of service. e company specifically outsourced its deliv- ery services and had no intention of taking on employees in this capacity. In addition, the company's employees were unionized, subject to performance management, and included in company events and meetings, which the worker was not, said the tribunal. ough a significant portion of the worker's time and service were controlled by the company, the tribunal found this didn't outweigh the other factors that made the worker an independent contractor. As result, when the relationship was termi- nated, it was simply an end to the distribu- tion agreement and her lost earnings from the contract could not be factored into loss-of-earnings calculations. See Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 2508/11, 2012 Car- swellOnt 17533 (Ont. W.S.I.A.T.). ended in October 1995 and he was rehired as a trackman from April to December 1996 and again from April to October 1997. Fol- lowing the second trackman stint, the work- er was transferred back to subway janitor at the same station where he was attacked. When he was transferred, the worker ex- pressed concerns about working alone and requested a partner. His supervisor called him a "basket case" but later apologized. He was laid off in November and filed a worker's compensation claim that his psychological issues were the result of the July 1995 at- tack. His claim was denied as not compen- sable under the traumatic stress policy of the Workers' Safety and Insurance Board (WSIB), as was his initial appeal to the ap- peals resolution officer. e worker then ap- pealed to the Workers' Safety and Insurance Appeals Tribunal (WSIAT), arguing the 1995 assault was a "sudden, unexpected and traumatic event" that met WSIB's traumatic mental stress policy. Around this time, the worker saw his fam- ily physician for psychological problems. e worker was diagnosed with depression and authorized to take time off. In 1999, the phy- sician said he would be fine to return to work but with the limitations of no night shift and no working alone. However, the TTC termi- nated his employment for being away with- out leave, which added to the worker's stress. A psychiatrist diagnosed the worker with post-traumatic stress disorder (PTSD) and major depressive disorder and, after a griev- ance was filed, the worker was reinstated by the TTC. e tribunal found there was no doubt the worker was distressed following the 1995 as- sault to the point where "he was prepared to abandon his job when he saw his supervisor that same evening." However, he returned to work after a couple of days off and was "in- formally accommodated" by being moved to a larger station where he could work with a partner. At this new station, the worker was able to work without medical attention and didn't make any additional accommodation requests, said the tribunal. e tribunal also found the worker didn't see his physician about the incident and didn't seek help in its aftermath, which was strange since he claimed to be housebound. e tribunal also noted the worker "eagerly" returned to work for the TTC when he was recalled for more temporary work. "If the worker was so traumatized as to be secluded at home, as he testified, he would not likely have been prepared to return to work with the accident employer in 1996 and 1997," said the tribunal. However, the tribunal found that when the worker was reassigned to the position of subway janitor, it likely brought back un- pleasant memories and his PTSD. e PTSD was a disability that was a direct result of the 1995 assault and the worker was entitled to accommodation for it, said the tribunal. is accommodation amounted to the restric- tions in the medical documents clearing the worker for work during the day only and always with a partner. Any other disability beyond this restriction was not related to the 1995 incident, said the tribunal. See Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 423/14, 2014 Carswel- lOnt 14688 (Ont. W.S.I.A. Trib.). Later stress not from incident « from PTsd on page 1

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