WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1292/05

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1292/05 BEFORE: J. Josefo: Vice-Chair D. McLachlan: Member Representative of Employers R.J. Lebert: Member Representative of Workers HEARING: July 19, 2005 at Toronto Oral DATE OF DECISION: June 19, 2006 NEUTRAL CITATION: 2006 ONWSIAT 1346 DECISION(S) UNDER APPEAL: WSIB ARO Mr. Peter Hall decision dated September 18, 2005 APPEARANCES: For the worker: For the employer: For Tribunal Counsel: Not applicable Mr. C. Peterson, Barrister and Solicitor Mr. L. Petrykowski, Student at Law Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1292/05 REASONS (i) The appeal - issues and background [1] The employer appealed the decision of Appeals Resolution Officer Peter Hall dated September 18, The issue in dispute was the appropriate classification of the employer s business. The employer disputed that it was in the business of operating a taxicab company but rather asserted that it was only a call centre. [2] Tribunal Decision No. 1292/05I describes the issues, background and conclusions reached by the Tribunal in this matter. That decision was released as an interim decision, however, to allow any potentially impacted workers the opportunity to bring forward contrary arguments or issues of concern before the decision was deemed to be a final one. [3] Tribunal Decision No. 1292/05I set out the background in part as follows: The employer appeals the decision of Mr. Peter Hall, Appeals Resolution Officer, dated September 18, That decision concluded that the employer is in the business of operating a taxicab company. It was further concluded that the employer s dispatching service is part of that industry and was correctly classified in Rate Group , Taxicabs. THE ISSUES The sole issue was whether this employer should be classified within Rate Group , Taxicabs, or within Rate Group I , Telephone Answering Call Centres, an application-only Rate Group. The Employer submits that it should be classified within Rate Group I and, as it has not sought, and does not want WSIB coverage, all premiums ordered paid to date should be refunded. The background of the matter was described by the Appeals Resolution Officer in his decision in part as follows: The employer objects to the decision of an Account Manager dated December 5, In particular the employer objects to the decision that their business activity is correctly classified in Classification Unit (CU) Rate Taxicabs. The employer says that they should be classified in CU Rate Telephone Answering Services/Call Centres. In the alternative the employer argues that they should be required to pay premiums only from the date of the decision, December 5, How the Issue Arises: This employer was identified as a potential Schedule 1 employer in May In January 2002 a no record claim prompted further investigation and in March 2002 the employer s account was established. The Account Manager enquired into the employer s business activity. The employer dispatches taxicabs operated by independent cab operators. The employer does not do any other business. The Account Manager was satisfied that the employer was engaged in the business of dispatching taxicabs as part of a taxicab business.

3 Page: 2 Decision No. 1292/05 The employer was classified accordingly. The Account Manager also considered the appropriate date from which to charge premiums. The Account Manager reasoned that it would be fair to charge premiums from the beginning of the year in which the accident [occurred] that gave rise to the enquiry took place. The employer was assessed premiums from January 1, The employer argues that because they do not own or operate any taxicabs they should be classified as a telephone answering service. The employer argues, in the alternative, that if they are properly classified as a taxicab employer, they should not have to pay premiums until December 5, 2002, the date of the decision. Without an oral hearing, the Appeals Resolution Officer concluded in part as follows: The employer s web sitedescribes the company history as: Since 1979 [the employer] has provided the citizens of west Toronto with prompt, courteous service. It s fleet of 185 cars, computerassisted voice dispatching, and its professional career enables [the employer] to be at your door within minutes of your call. The web site goes on to describe how companies can establish corporate accounts and use pre-printed charge slips so that they may be invoiced monthly by [the employer]. The web site also provides a fee schedule for special flat rate trips to the airport from various locations around Toronto. Conspicuously absent from this website is any mention that the company does not operate taxicabs, does not employ taxicab drivers, is not a taxicab company and is just a call centre. All of the evidence available to me says that [the employer] offers itself to the world as a taxi company providing taxi services. In my opinion this employer is engaged in the business of providing taxi services to the public. CU Taxicabs, Rate includes taxicab organisations regardless of whether drivers are hired, rent their cabs, or are otherwise compensated. Included in a taxicab operation is taxi dispatching by a taxicab employer. I am convinced, notwithstanding the representative s submissions, that the employer is engaged in the business of providing taxicab services. I am further satisfied that the dispatching activity is a part of that business and falls within that industry. CU Rate Telephone Answering Services/Call Centres includes employers engaged in providing telephone answering services as a business. This category also includes the operation of a call centre as a business. I have seen no evidence that this employer operates a telephone answering service as a business. The employer advertises itself as a taxi company and that is the business they are in. The representative argues that the employer is actually a call centre because all they do is take calls and dispatch individual drivers. In my opinion the employer is not in the business of providing call centre services. They do not advertise themselves as a call centre service and they do not provide any service other than arranging taxicabs for customers who call them expecting to reserve a taxi

4 Page: 3 Decision No. 1292/05 The employer appeals from this decision. The Panel has been informed that such an issue has never before been addressed at the Tribunal. We are, of course, not bound by decisions of the Appeals Resolution Officer. We find, on the whole, that the history provided by ARO Patlik and her analysis of the purpose of having two distinct classification units and Rate Groups for the particular circumstances makes good sense. In the case of this employer, the evidence is clear and accepted by the Board, that the employer is engaged only to arrange taxicabs for customers who call them. Clearly, that is a call centre. The employer does not employ any personnel other than clerical staff or those who take telephone orders, and dispatch cabs to fill those orders. The employer thus has none of the risks that would be associated with a taxicab company employing drivers and other personnel who repair or service cabs. It appears to the Panel that this employer fits best within the historical and long carved out exception for call centres. The employer is not, in fact, a taxicab employer. Rather, the employer is solely a call centre. As the employer has made it clear that it does not seek this application-only coverage, the employer is entitled to a full refund of all monies paid to the Board, plus interest on such monies pursuant to applicable Board policy. (iv) The Impact of this Decision If any purported worker of this employer has his or her benefits impacted by this Decision, then such an individual or group who believes that their rights or interests are impacted may give notice to the Tribunal. This Decision is thus released as an interim decision, to allow such a party to present any contrary arguments or issues which were not raised in the employer s appeal. Such an individual has 60 days after the Board implements this Decision, or they otherwise have notice of it, whichever first occurs, to give notice to the Tribunal. If such notice is received the hearing will reconvene pursuant to a schedule determined by Tribunal Counsel. If no such notice if received, this Decision will be deemed final. THE DECISION The employer s appeal is allowed. It is not a taxicab company and should not be classified as such. Rather, the employer would, if it sought such application-only coverage, be best classified as a telephone answering service/call centre, in Rate Group As the employer has made it clear that it does not wish such coverage, the employer is entitled to a refund of all premiums it has paid to the Board, plus interest pursuant to applicable Board policy. Any purported worker of the employer has 60 days from the Board s implementation of this Decision, or 60 days from when such individual has notice of this Decision, to notify the Tribunal that the individual(s) impacted by this Decision wish to participate in the hearing. If such notice is given the hearing will reconvene. Absent such notice the Decision shall be deemed final. [4] Of course, to understand the rationale that led to the above excerpted conclusions, if desired the reader can review Tribunal Decision No. 1292/05I.

5 Page: 4 Decision No. 1292/05 (ii) Conclusions [5] The Panel has been informed that no individual has given notice to the Tribunal or has sought to make any submissions with respect to the above interim decision. We confirm, accordingly, that the conclusions set out in Interim Decision No. 1292/05I are deemed final.

6 Page: 5 Decision No. 1292/05 DISPOSITION [6] Tribunal Decision No. 1292/05I is deemed final, and the conclusions set out therein, as excerpted immediately above, are fully operative. DATED: June 19, 2006 SIGNED: J. Josefo, D. McLachlan, R.J. Lebert