WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1307/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1307/13 BEFORE: T. Mitchinson: Vice-Chair HEARING: July 11, 2013 and February 12, 2014 at Toronto Oral Post-hearing activity completed on June 13, 2014 DATE OF DECISION: November 4, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2369 APPLICATION FOR ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the applicant: For the co-applicants: David Murray, Lawyer Thomasina Dumonceau, Lawyer Patrick Monaghan and Heather Taylor, Lawyers For the interested parties: Josh Sugar, Student-at-law, and Stephen Libin, Lawyer Raymond Wong, Self-represented For the respondent: Interpreter: Dale Orlando and Alison Burrison, Lawyers Marta Wolosink, Polish 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. 1307/13 REASONS (i) Introduction [1] This is an application under section 31 of the Workplace Safety and Insurance Act by a number of defendants in an action filed in the Ontario Superior Court of Justice as Court File No. CV , for a declaration and order to bar the plaintiffs/respondents from commencing and maintaining a civil action against the defendants for damages stemming from an accident that occurred on November 18, [2] The application was heard in Toronto on July 11, 2013 and February 12, [3] The applicant, Allstate Insurance Company of Canada (Allstate), is represented by David Murray, a lawyer. Allstate is the statutory accident benefits carrier for any insurance claim by the respondents stemming from the November 18, 2008 accident. [4] The co-applicants, Buckley Cartage Limited (Buckley Cartage) and Wells Fargo Equipment Finance Corporation (Wells Fargo) are represented by Thomasina Dumonceau, a lawyer. Buckley Cartage is a transport company and owner of the site where the November 18, 2008 accident occurred, and the employer of one of the respondents. Wells Fargo is the leasehold owner of the vehicle involved in the accident. [5] The co-applicant, Fransiszek Rossa (Rossa) is represented by lawyers, Patrick Monahan and Heather Taylor. He was the driver of the tractor involved in the accident on November 18, [6] The interested parties, Pace International Inc., Interpol Inc., and Trac Lease Inc. (Pace and Trac) was represented at the July 11, 2013 hearing by Josh Sugar, student-at-law, and by Stephen Libin, a lawyer, at the February 12, 2014 hearing. They are the owners/lessors of the trailer involved in the November 18, 2008 accident. [7] The respondents, Robert Babicki (Babicki) by his litigation guardian, Anetta Babicki, and Anetta Babicki personally, are represented by lawyers Dale Orlando and Alison Burrison. Babicki was injured in the November 18, 2008 accident. [8] Self-represented interested party, Raymond Wong, was an employee of Buckley Cartage at the time of the accident. He appeared at the July 11, 2013 hearing, but was excused on the basis that his interests are not affected by the outcome of this application. [9] Rossa testified at the July 11, 2013 hearing, with the assistance of Polish interpreter, Marta Wolosink. Joseph Bart Buckley (Buckley) the owner of Buckley Cartage, testified at the February 12, 2014 hearing. [10] At the end of the February 12, 2014 hearing, I made the following rulings: 1. Allstate, Buckley Cartage, and Wells Fargo were all Schedule 1 employers in November 2008 when the accident in question occurred. 2. Babicki was a Schedule 1 worker employed by Buckley Cartage in November 2008 when he was injured during the course of his employment. 3. Pace and Trac were not Schedule 1 employers in November 2008.

3 Page: 2 Decision No. 1307/13 4. Babicki is barred, pursuant to section 31 of the Act, from maintaining his civil action against Allstate, Buckley Cartage, and Wells Fargo, for damages stemming from the November 18, 2008 accident. [11] Ms. Dumonceau advised that in light of these rulings she would not be making submissions on behalf of Buckley Cartage and Wells Fargo. Mr. Libin reserved the option to make submissions, pending receipt and review of submissions from Mr. Murray and/or Mr. Monaghan/Ms. Taylor. [12] All parties were in agreement that submissions would be provided in writing. [13] Mr. Murray and Mr. Monaghan provided submissions on April 4, Copies were provided to Mr. Orlando/Ms. Burrison and Mr. Libin. Mr. Libin advised that he would not be providing submissions, and was seeking an order under section 29(4) of the Act. Mr. Orlando/Ms. Burrison provided submissions on May 12, 2014, which were then shared with Mr. Murray and Mr. Monaghan/Ms. Taylor. Mr. Murray submitted final reply submissions on June 2, 2014, and Mr. Monaghan/Ms. Taylor on June 3, (ii) Applicable law [14] The accident leading to the civil law suit and this section 31 application occurred in Therefore, the Workplace Safety and Insurance Act (the Act) applies. (iii) Preliminary issues [15] At the start of the July 11, 2013 hearing, the parties agreed to the introduction of three documents not included in the Case Record. They are co-applicant Rossa s supplementary materials dated July 11, 2013, a schematic of the accident site dated August 16, 2012, and a copy of an incomplete pro forma agreement dated August 16, 2006 used by Buckley Cartage and its independent contractors. Later in the hearing, two additional records were accepted into evidence: a May 29, 2012 letter confirming the status of Buckley Cartage as a Schedule 1 employer and identifying that Pace and Trac did not have accounts with the Workplace Safety and Insurance Board; and a copy of Rossa s 2008 income tax return. All of these documents were accepted as exhibits. [16] At the start of the February 12, 2014 hearing, a copy of the collective agreement between Buckley and its unionized workers was tabled and accepted as an exhibit, on consent. (iv) Statutory provisions and Board policy [17] Sections 28(1) and 31(1) of the Act reads as follows: 28(1) A worker employed by a Schedule 1 employer, the worker s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer.

4 Page: 3 Decision No. 1307/13 31(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine, (a) whether, because of this Act, the right to commence an action is taken away; (b) whether the amount that a person may be liable to pay in an action is limited by this Act; or (c) whether the plaintiff is entitled to claim benefits under the insurance plan. [18] Board Operational Policy Manual (OPM) Document No sets out the policy and guidelines for determining whether the requirements of section 31(1) of the Act are present: POLICY The Act provides no fault loss of earnings benefits for injuries arising out of and in the course of employment in lieu of all rights of action that a worker or survivor may have against the worker s employer. In most cases any right of action is taken away by the Act. However, there are circumstances where a worker or survivor may have a right of action against a third party. GUIDELINES When all parties involved in the accident were in the course of their employment, the worker has no right of action against any Schedule 1 - employer - director - executive officer, or - worker [19] Section 2(1) of the Act defines worker as a person who has entered into or is employed under a contract of service. [20] OPM Document No provides policy and guidelines on the issue of whether an individual is a worker or an independent operator. It states in part: Policy The WSIB uses questionnaires (a general questionnaire and six industry-specific questionnaires), to gather information to help determine if a person is employed under a "contract of service." The questionnaires reflect the principles of the organizational test (see below). Persons employed under a contract of service are workers. Independent operators are not employed under a contract of service. The WSIB has the authority to determine who is a worker or an independent operator under the Workplace Safety and Insurance Act. Guidelines General A contract of service, or employer-employee relationship, is one where a worker agrees to work for an employer (payer), on a full- or part-time basis, in return for wages or a salary. The employer has the right to control what work is performed, where, when, and how the work is to be performed. Workers those who work under contracts of service are automatically insured and entitled to benefits if injured at work. In addition, their employers must pay premiums to the WSIB.

5 Page: 4 Decision No. 1307/13 A contract for service, or a business relationship, is one where a person agrees to perform specific work in return for payment. The employer does not necessarily control the manner in which the work is done, or the times and places the work is performed. Independent operators those who work under contracts for service are not automatically insured or entitled to benefits unless they voluntarily elect to be considered "workers" and apply to the WSIB for their own account and optional insurance. (See , Optional Insurance.) Independent operators may not be insured through the hiring company's (payer's) WSIB account. Organizational test The organizational test recognizes features of control, ownership of tools/equipment, chance of profit/risk of loss, and whether the person is part of the employer's organization, or operating their own separate business. Characteristics of workers and independent operators The following list compares worker/independent operator characteristics. The statements on the left are more characteristic of the behaviour or situations of workers, while those on the right characterize the behaviour of independent operators. No one statement determines a person's status. The seven questionnaires do not necessarily include all the characteristics listed since they are designed to capture key elements of business relationships in specific industries. Decision-makers consider the statements on the questionnaires, and any other information relevant to the terms and conditions of employment. Instructions Workers Comply with instructions on what, when, where, and how work is to be done. Independent Operators Work on their own schedule. Does the job their own way. Training/ supervision Trained and supervised by an experienced employee of the payer. Required to take correspondence or other courses. Use their own methods and are not required to follow instructions from the payer. Required to attend meetings and follow specific instructions which indicate how the payer wants the services performed. Personal service Must render services personally. Must obtain payer's consent to hire others to do the work. Often hires others to do the work without the payer's consent. Hours of work The hours and days of work are set by the payer. Work whatever hours they choose. Full-time work Must devote full-time to the business of the payer. Restricted from doing work for other payers. Free to work when and for whom they choose.

6 Page: 5 Decision No. 1307/13 Order or sequence of work Workers Performs services in the order or sequence set by the payer. Independent Operators Performs services at their own pace. Performs work that is part of a highly coordinated series of tasks where the tasks must be performed in a well-ordered sequence. Work on own schedule. Method of payment Paid by the payer in regular amounts at stated intervals. Paid by the job on a straight commission. Payer alone decides the amount and manner of payment. Negotiates amount and method of payment with the payer. Licenses Payer holds licenses required to do the work. Person holds licenses required to do the work. Serving the public Does not make services available except on behalf, or as a representative, of the payer. Invoices customers on employer's behalf. Has own office. Listed in business directories and maintains business telephone. Advertises in newspapers, etc. Invoices customers on own behalf. Status with other government agencies (e) Terms of the relationship are governed by a collective agreement. (f) Canada Revenue Agency either makes no ruling on the person's status, or rules that the person is a worker under the Canada Pension Plan (CPP) and the Employment Insurance Act (EIA). (A ruling is made after the relevant parties complete the form "Request for a ruling as to the status of a worker under the CPP or EIA".) (g) Collects and pays GST and other applicable taxes on payer's behalf. (h) Payer deducts EI, CPP, insurance, income tax, etc. from pay. Terms of the relationship not governed by a collective agreement. Canada Revenue Agency has made an official ruling that the person is not a worker under the CPP and the EIA. Collects and pays GST and other applicable taxes on own behalf. Takes no deductions from pay for EI, CPP, insurance, income tax, etc. Profit or Loss To determine what the opportunities are for the person to earn a profit or suffer a loss in doing the work, the decision-maker must consider what assets (labour, materials, tools, and equipment) are used, operated, or put into action when doing the work, e.g., a lathe. These are to be distinguished from assets

7 Page: 6 Decision No. 1307/13 that are the subject of the work, or that are acted upon in doing the work, e.g., the table leg that is "turned" on the lathe. what costs are incurred in doing the work, including -costs of the acquisition, maintenance, operation and repair of assets; -financing and loan arrangements with respect to the work, and -licensing and insurance fees who pays these costs - the employer or the person if the person pays the costs, does the person purchase items directly or indirectly from the employer or through an arrangement with the employer what decisions influence the costs and to what extent who makes and has the right (legal or otherwise) to make these decisions - the person or the employer the market mobility of the person or the demand that exists for these services. Workers have the right to make decisions that, in comparison to those that the employer makes (or has the right to make), have an insignificant or lesser influence on the workers' opportunity to make a profit or suffer a loss in doing the work. Independent operators have the right to make decisions that, in comparison to those that the hiring company makes (or has the right to make), have a significant influence on their opportunity to make a profit or suffer a loss in doing the work. Other applicable criteria To determine what other applicable criteria suggest about the status of the person, decision-makers consider the paired statements that follow. None of these statements, on its own, leads to the determination of status. Before making a determination, decisionmakers must consider each statement in reference to all other features of the work relationship. Continuing need for type of service Hiring / supervising / paying assistants Doing work on purchaser's premises Oral and written reports Workers Payer has a continuing need for the type of service that the person provides. A payer has a continuing need for service if all persons who perform such services, collectively, spend more than 40 hours a month on average doing the work, or if the work continues fulltime for more than 4 months. Hires, supervises, and pays workers, on direction of the payer (acts as a supervisor or representative of the payer). Payer owns or controls the worksite. Required to submit regular oral or written reports to payer. Independent Operators Payer does not have a continuing need for the type of service that the person provides. Hires, supervises and pays workers, on own accord and as the result of a contract under which the person agrees to provide materials and labour and is responsible for the results. Works away from payer's premises using own office space, desk, and telephone. Submits no reports. Right to sever Either the person or the payer can end the work Agrees to complete a specific job and is

8 Page: 7 Decision No. 1307/13 relationship Working for more than one firm at a time Workers relationship at any time without legal penalty for breach of contract. Usually works for one payer. Independent Operators responsible for its satisfactory completion or is legally obligated to pay for damages or loss of income that the payer sustains because of the failure to satisfactorily complete the work. Works for more than one payer at the same time. Determining Status The decision-maker reaches a decision about the status of the person. When the criteria indicate the person has a separate business that is not integrated into the employer's business, then the person is an independent operator. If the decision-maker finds that the person is subject to a high degree of control in doing the work, and that the decisions the person makes have an insignificant effect on the person's own opportunity to earn a profit or suffer a loss the person is a worker and does not have a separate business, even if a review of Other applicable criteria suggests that some independence is afforded the person in the relationship with the employer. [21] OPM Document No outlines the policy and guidelines for determining whether an accident occurred in the course of employment: POLICY A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time and activity indicate that the accident was work-related. GUIDELINES In determining whether a personal injury by accident occurred in the course of employment, the decision-maker applies the criteria of place, time and activity in the following way: Place If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment. If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities. Time If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work. If a worker does not have fixed working hours or if the accident occurred outside the worker s fixed working hours, the criteria of place and activity are applied to

9 Page: 8 Decision No. 1307/13 (v) determine whether the personal injury by accident occurred in the course of employment. Activity If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment. If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as - the duration of the activity - the nature of the activity, and - the extent to which it deviated from the worker s regular employment activities. In determining whether an activity was incidental to the employment, the decisionmaker should take into consideration - the nature of the work - the nature of the work environment, and - the customs and practices of the particular workplace. Application of criteria The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment. If a worker with fixed working hours and a fixed workplace suffered a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, the worker was engaged in a personal activity that was not incidental to the worker s employment. The decision-maker examines the activity of the worker at the time of the accident to determine whether the worker s activity was of such a personal nature that it should not be considered work-related. In all other circumstances, the time and place of the accident are less important. In these cases, the decision-maker focuses on the activity of the worker and examines all the surrounding circumstances to decide if the worker was in the course of employment at the time that the personal injury by accident occurred. Background [22] On the morning of November 18, 2008, Rossa was sitting in the driver s seat of a tractortrailer vehicle on premises owned and operated by Buckley Cartage. Babicki, who was a vehicle mechanic employed by Buckley Cartage, was lying on the ground under the tractor-trailer making mechanical adjustments to the brakes of the vehicle. The vehicle moved, causing serious personal injuries to Babicki.

10 Page: 9 Decision No. 1307/13 [23] On November 21, 2008, Buckley Cartage filed a Form 7 Employer s Report of Injury with the Board, attaching a November 18, 2008 Motor Vehicle Accident Report. [24] On December 12, 2008, Mr. Orlando filed an Assignment of Workplace Safety and Insurance Benefits form with the Board on behalf of Babicki. It was signed by Babicki s Power of Attorney and by a representative of Allstate, the accident benefits insurer. The Board responded on December 15, 2008, acknowledging receipt of the form and confirming that if benefits become payable to Babicki under the Act, the assignment would be honoured. [25] On January 9, 2009, Mr. Orlando wrote to Buckley Cartage, confirming that Babicki had elected to opt out of coverage under the Act and to pursue a claim against Allstate for accident benefits, and to pursue a tort claim against Rossa and Buckley Cartage. [26] On August 19, 2010, Babicki commenced a civil action in negligence against Rossa, Buckley Cartage, Pace and Trac. Anetta Babicki, Babicki s wife, is also a plaintiff in this action. The plaintiffs amended their Statement of Claim on November 10, [27] On February 28, 2011, Pace and Trac filed a Statement of Defense, and Crossclaim against co-defendants, Rossa, Buckley Cartage and Wells Fargo. [28] On April 7, 2011, the plaintiffs filed a Third Party Claim against Raymond Wong. [29] Mr. Murray then brought a section 31 application at the Tribunal, on behalf of Allstate. Ms. Dumonceau on behalf of Buckley Cartage and Wells Fargo, and Mr. Monaghan on behalf of Rossa, joined as co-applicants. [30] Section 31 Statements were received from the applicant and co-applicants, and Mr. Orlando filed a Statement of Respondents on behalf of Babicki and his wife. [31] Trac and Pace did not join the matter as co-applicants but participated as interested parties. Raymond Wong also attended as an interested party but, as previously indicated, he was excused at the start of the July 11, 2013 hearing. (vi) The issue [32] The only remaining issue is whether Rossa was a worker or an independent operator at the time of the November 18, 2008 accident. If Rossa was a worker in the course of employment, then the section 31 application would succeed and the respondents would be barred from proceeding with their civil action against him. If Rossa was an independent operator, then the section 31 application would fail against Rossa, and the respondents would not be barred from proceeding with their civil action against him. (vii) Rossa s testimony [33] Rossa provided testimony at the July 11, 2013 hearing, with the assistance of Polish interpreter, Marta Wolosink. [34] He first responded to a number of questions from Mr. Monaghan and Mr. Murray. [35] Rossa testified that he emigrated to Canada from Poland in 1986, and continues to have limited English-language capability. He estimates approximately 60-65% oral communication ability, but only 30% written English skills.

11 Page: 10 Decision No. 1307/13 [36] Rossa explained that he began work with Buckley Cartage as a driver in approximately Between that point and 2008, he left Buckley Cartage on more than one occasion to work for other transport companies, but worked continuously for Buckley Cartage from August 2006 until the time of the November 18, 2008 accident. [37] Rossa testified that he purchased the tractor used by him in 2008 from Sheehan Truck Centre in 2004, and financed it through a lease agreement with Wells Fargo. He used this tractor while worker for Buckley Cartage, and also for other transport companies before returning to Buckley Cartage in According to Rossa, Buckley Cartage installed stickers on his tractor with the name and address of the transport company, and that the tractor could only be used to transport Buckley Cartage s trailers. [38] Rossa confirmed that he entered into an Independent Contractor agreement with Buckley Cartage when he returned to work for them in August He confirmed his signature on the copy of the agreement filed as an exhibit, but maintains that he did not read it before signing. Rossa explained that he didn t have sufficient English-language capacity to understand the terms of the contract, but that his sons went over the details with him after signing to help him understand the content. Rossa also recalled having undergone a police clearance check in this context. [39] According to Rossa, there were no negotiations with Buckley Cartage regarding the permile rate of pay, or any other terms of the agreement. He was simply presented with the document for signature. [40] Rossa also confirmed his August 2006 signature on a WISB Independent Operator Without Coverage form, but again explained that he only understood its content when explained to him by his sons after signing. [41] As well, Rossa confirmed his signature on a series of Corrective Notices on Buckley Cartage letterhead, identifying driving infractions during the course of his work with Buckley Cartage. [42] Rossa testified that he worked exclusively for Buckley Cartage at the time of the November 2008 accident. He kept his tractor in Buckley Cartage s yard, and would pick it up from there after dropping off his car in a parking lot provided by Buckley Cartage to all drivers. He explained that he would call a Buckley Cartage dispatcher each morning, who would identify which trailer he should hook up to for an individual delivery. The dispatcher would provide a bill of lading and the delivery location, as well as any required customs documentation if the customer was in the United States. Rossa explained that his regular delivery routes were to either Ohio or Quebec. Rossa testified that there were only a few times per year that work was not available for him, and that he never declined a job. While en route, he would be in contact with Buckley Cartage approximately 1-2 times per day by phone. According to Rossa, he rarely took any time off work, other than for vacations to Poland, and never had any problems with Buckley Cartage regarding these vacation arrangements. [43] According to Rossa, Buckley Cartage provided jackets and caps with the company logo, which he wore, but he explained that while this was a mandatory requirement for employee drivers, it was optional for independent operators. [44] Rossa confirmed that he had been provided with a copy of Buckley Cartage s Policies and Procedures, and that the company s Driver Handbook Safety Guidelines were kept in his

12 Page: 11 Decision No. 1307/13 tractor at all times. Rossa was not aware whether these documents were also provided to employee drivers, but assumed that they were, since all drivers, whether employees or independent operators, followed the same rules. Rossa also testified that all employee and independent operator drivers were trained as a group by Buckley Cartage on various operational and safety issues, including transportation of hazardous goods and procedures for completing log books. [45] Rossa also testified that all delivery documentation had Buckley Cartage s letterhead, and that customers paid Buckley Cartage directly, with no involvement on his part. He also confirmed that he was paid for his work irrespective of any issues or dispute between Buckley Cartage and the customer over payments for the delivery. [46] Rossa testified that his pay was calculated on a per-mile basis, and that fuel costs were subsidized by Buckley Cartage. He was personally responsible for maintaining the tractor and ensuring that it was operating properly. He was also responsible for insurance costs, under Buckley Cartage s blanket policy. [47] As far as the circumstances surrounding the November 18, 2008 accident are concerned, Rossa testified that this was his first day back at work after being in Poland at his father s funeral. He received the trailer assignment from the Buckley Cartage dispatcher, hooked it up to his tractor and did his routine pre-delivery inspection. He drove to the fuel station and noticed a problem with the wheels, at which point he returned to the yard and advised Buckley Cartage. The accident occurred shortly thereafter. [48] Following the accident, Rossa recalled that his contract was terminated. His insurance and registration arrangements with Buckley Cartage ended, and the license plates and Buckley Cartage identification markers were removed from the tractor. He made arrangements for a towing company to remove the tractor from Buckley Cartage s premises, and returned a number of items belonging to Buckley Cartage, such as keys, bridge passes and gas cards. [49] Rossa testified that he was out of work for a period of time, but currently works for a different transport company as a driver. [50] Rossa also responded to a number of questions from Mr. Orlando. [51] Rossa testified that when he signed the agreement with Buckley Cartage in August 2006 it was his intention to be an independent operator and not a company driver. Even though he didn t understand all details of the contract and the WSIB documentation when he signed them, once the content was explained by his sons he understood that the documentation was consistent with his expectations. [52] Rossa explained that Buckley Cartage was not involved in the purchase and lease negotiations for his tractor. He handled these negotiations himself, and the lease was not tied to his working for Buckley Cartage. Rossa confirmed that his lease payment obligations continued after he was terminated by Buckley Cartage, and in fact he was forced to give back the tractor when he couldn t find alternative work and defaulted on the lease payments. [53] Rossa confirmed his understanding that his agreement could be terminated, either by Buckley Cartage on 3 days notice, and by him with 2-week s notice, and that Buckley Cartage did not commit to providing work every day or guaranty any specific number of delivery miles per month. He also testified that, in contrast to employee drivers, he did not receive any vacation

13 Page: 12 Decision No. 1307/13 pay, sick leave or health care benefits, and he was personally responsible for absorbing any overnight costs incurred as part of a delivery. [54] Rossa also testified that his income from driving was not set in advance, and varied from month to month based on the amount of work offered by Buckley Cartage and undertaken by him. Buckley did not make any deductions from his pay for Canada Pension Plan, income tax, or Employment Insurance premiums, and it was his responsibility to collect and submit GST/HST payments. [55] Rossa explained that Buckley Cartage mechanics did not do any repair or maintenance work on his tractor, and he was personally responsible for any fines received during the course of deliveries. He was sometimes given a choice of delivery options by the Buckley Cartage dispatcher, could choose his driving routes, and was only required to check in with Buckley Cartage during the day if he was having a problem. [56] Although his contract with Buckley Cartage prevented him from using this tractor for work with any other transport company, Rossa explained that this did not prevent him from using a different tractor with another company, and he was able to hire another driver to drive the Buckley Cartage tractor as long as Buckley Cartage approved. [57] Rossa also testified that he was aware of some different arrangements between employee drivers and independent operators working for Buckley Cartage. He understood that employee drivers were given regular days off, were required to wear company uniforms and did not have to pay for fuel charges. He also assumed that they worked on set schedules, were entitled to paid vacations, and received various employee benefits. (viii) Buckley s testimony [58] Buckley provided testimony at the May 20, 2014 hearing. [59] Ms. Dumonceau led off the questioning. [60] Buckley testified that he has worked for Buckley Cartage since he was a teenager and was the owner of the company at the time of the November 2008 accident. He also confirmed that Babicki was an employee and a member of the union representing employees in the workplace under the terms of the collective agreement filed as an exhibit at the start of this hearing. [61] Mr. Orlando then took over questioning. [62] All answers and other testimony provided by Buckley related to the circumstances in place at Buckley Cartage in November [63] Buckley testified that there were two categories of drivers working for Buckley Cartage in 2008, divided approximately evenly between 75 employee drivers and 75 independent operators. Rossa was in the second category. He explained that the industry has since undergone a shift towards use of independent operators. [64] Buckley explained that Rossa initially worked as a sub-contractor for a different independent operator, until he purchased his own tractor and joined the company as an independent operator. Buckley estimated that this change in status occurred in approximately Buckley also recalled that Rossa left Buckley Cartage to work for a different transport

14 Page: 13 Decision No. 1307/13 company, but returned to Buckley Cartage about a year later and was re-hired as an independent operator. According to Buckley, at no point did Rossa ask to be hired as an employee driver. [65] Buckley testified that the agreement entered into with Rossa when he re-joined Buckley Cartage in 2006 was used for all independent operators working for the company at that time. He also explained that all independent operators were required to complete applications to the WSIB for independent operator status, and that this was done by Rossa as a condition of working for Buckley Cartage. [66] According to Buckley, individual independent operators had some capacity to negotiate the terms of their agreement with Buckley Cartage, and per-mile rates varied to some extent at times, depending on the degree of competition in the market. Pay for employee drivers, on the other hand, was determined on the basis of the collective agreement with the union. [67] As far as Rossa s tractor is concerned, Buckley testified that Buckley Cartage was not involved in any aspect of the purchase or lease arrangements. On the other hand, tractors used by employee drivers were purchased and financed by Buckley Cartage. [68] Buckley also testified that Buckley Cartage s agreement with Rossa allowed for termination with appropriate notice. According to Buckley, although independent operators were also bound by the agreement to provide notice of termination, they did not always do so. Buckley testified that the company in fact terminated Rossa in January 2009, with no obligation to provide severance or any other financial compensation. In contrast to employee drivers, who had the benefit of provisions in the collective agreement regarding seniority rights and grievance procedures, Buckley Cartage could pick and choose which independent operators would be laid off or terminated. [69] As far as Rossa s work patterns were concerned, Buckley testified that the agreement did not guarantee any specific work volumes, and they varied from month to month. However, he confirmed that work was available pretty much every day. [70] Buckley also confirmed that Rossa did not receive any vacation pay or other employment-related benefits. Employee drivers, on the other hand, were entitled to vacation, statutory holiday pay, overtime, leave, medical benefits and RRSP contributions, according to the terms of the collective agreement. [71] Buckley also confirmed a number of responsibilities assumed by independent operators that did not apply to employee drivers: leases payments for the tractor; maintenance costs; tractor replacement costs; damage repair costs; annual tractor inspection and emissions certification; and vehicle licensing and insurance charges. [72] As far as payments were concerned, Buckley testified that mileage distances for all drivers were set by computer software, and independent operators were paid on the basis of the number of routes driven during the month, as determined by the operator. Buckley believed that the rate for employee drivers at the time was $0.34 per mile, and independent operators were paid $1.34 per mile. Buckley Cartage had no role in determining the route or time taken by the independent operator, and did not absorb any overnight costs. [73] Buckley testified that Buckley Cartage did not deduct any government-related payments from independent operators pay, leaving that responsibility with the individual operator. He also confirmed that the uniforms worn by employee drivers were available to independent

15 Page: 14 Decision No. 1307/13 operators, but not required, nor did Buckley Cartage impose any colour requirements on independent operator tractors. [74] Buckley confirmed that the agreement between Rossa and Buckley Cartage prevented him from using his tractor for work with other transport companies, although he was not prevented from using a different tractor to drive for a competitor. [75] Buckley also confirmed that employee drivers and independent operators were all required to comply with the same set of rules and policies. He explained that this was primarily due to the fact that the government was involved in a number of oversight functions, and the company was subject to audit and reporting obligations that required consistency. [76] Mr. Monaghan also had a number of questions. [77] Mr. Monaghan pointed out that documentation in the Case Record indicates that the employee driver/independent operator ratio in 2008 was 51/31 rather than the 75/75 division stated by Buckley, and that the corresponding numbers in 2013 were 17 and 3. Buckley explained that his business underwent a restructuring as a result of the 2008 recession, and his new business operates exclusively with independent operator drivers. [78] Buckley confirmed that independent operators were not directly involved with customers regarding delivery charges. He also confirmed that Buckley Cartage would determine specific delivery requirements, and that there were no negotiations with drivers on the financial terms of an individual delivery. Buckley also agreed with Mr. Monaghan s suggestion that Buckley Cartage had fixed delivery costs regardless of whether an individual delivery was made by an employee driver or an independent operator. [79] Buckley went on to explain that all tractors were covered by a blanket insurance policy held by Buckley Cartage, and that Commercial Vehicle Operator Registration (CVOR) Certificates were obtained by Buckley Cartage for all vehicles, whether owned by the company or by independent operators.. Buckley confirmed that Buckley Cartage was responsible for ensuring compliance with COVR requirements on all vehicles, including safety and licensing, and that any CVOR-related infractions were registered against Buckley Cartage, regardless of the status of the driver. [80] Buckley also explained that independent operators were issued Buckley Cartage gas cards, and that gas and insurance costs were charged back to independent operators on a monthly basis. [81] Buckley testified that he has no specific recollection of the rules and regulations imposed on drivers, as this responsibility was handled by other company officials. However, he confirmed that all drivers, regardless of status, were subject to the same Driver Handbook Safety Guidelines issued by Buckley Cartage. [82] Finally, Buckley confirmed his understanding that the terms of the WSIB Independent Operator Coverage document allowed the independent operator market mobility through discretion to enter into agreements for the transport of goods, but that Rossa chose to drive only for Buckley Cartage, and his agreement with this company prevented him from using the tractor for work with any other transport company. Buckley clarified that Rossa could hire someone else to drive the tractor, with Buckley Cartage s approval, but that payments for any such work would be made to the independent operator and not to the substitute driver.

16 Page: 15 Decision No. 1307/13 [83] In response to questioning by Mr. Murray, Buckley testified that Buckley Cartage never offered Rossa a job as an employee driver. He also confirmed that if an independent operator declined to participate in WSIB coverage, Buckley Cartage required evidence of alternative insurance coverage arrangements as a condition of work as a driver with the company. [84] Buckley also testified that Buckley Cartage budgeted approximately 25% of salary as additional employment costs associated with employee drivers, and confirmed that the transport industry is shifting from a mix of employee drivers and independent operators to primarily independent operator drivers. [85] Mr. Orlando had some further questions in reply. [86] Buckley agreed with Mr. Orlando s suggestion that it was easier to downsize operations when dealing with independent operator drivers as opposed to employee drivers. [87] Buckley also agreed that the instructions provided by Buckley Cartage to Rossa and other independent operators was limited, consisting primarily of identifying which trailer to pick up and where to deliver the goods. He also testified that independent operators were not required to use the gas cards issued by Buckley Cartage. [88] Buckley also confirmed that other independent operator drivers working for Buckley Cartage used substitute drivers, and that Buckley Cartage had no knowledge of the payment arrangements between these individuals and the independent operators. (ix) Monaghan/Taylor submissions [89] Mr. Monaghan/Ms. Taylor submit that Rossa should be considered to be a worker for the purposes of the Act, for the following reasons: 1. the large measure of control and direction over his work exercised by Buckley Cartage; 2. the concomitant lack of independence or lack of room for entrepreneurial initiative on the part of Rossa; and 3. the degree of integration of Rossa into the operations of Buckley Cartage. [90] In their view, the fact that Rossa owned the tractor he was driving at the time of the accident should not be considered a marker of some larger entrepreneurial activity, and was neutralized by the higher mileage rate and fuel subsidy provided by Buckley Cartage. [91] Mr. Monaghan/Ms. Taylor submit that it was Rossa s intention to drive for Buckley Cartage on a full-time basis, and that he entered into an agreement with the company that prevented him from using his tractor for any other purpose. [92] Mr. Monaghan/Ms. Taylor point out that Rossa s tractor bore Buckley Cartage logos, and that he chose to wear uniforms provided by the company. They also point to Rossa s testimony at the hearing where he described the two categories of drivers as essentially the same, with no real differences in the job they were performing. [93] In their view, although Buckley Cartage had all of the normal indicia of a business operation, Rossa did not. He never hired other drivers or owned and operated more than one tractor at a time; he did not keep an office; was not incorporated; did not market his services; and had no customers. He also had no dealings with Buckley Cartage s customers, and was

17 Page: 16 Decision No. 1307/13 reliant on the company to ensure compliance with all regulatory requirements in the transport industry. [94] Although Rossa s agreement with Buckley Cartage describes him as an independent operator, Mr. Monaghan/Ms. Taylor ask me to give little or no weight to this characterization. In their view, the agreement was heavily slanted in favour of Buckley Cartage, and incomprehensible to Rossa due to recognized language barriers. They also submit that the agreement itself gave Buckley Cartage full control of Rossa s tractor, with exclusive rights to use it for their purposes, evidencing what they describe as an overwhelming amount of control in the relationship. In Mr. Monaghan/Ms. Taylor s view, the fact that Rossa s tractor was insured under Buckley Cartage s bulk insurance policy, and that the company held the CVOR and owned the license plates for the vehicle are also evidence of a high degree of control. [95] They describe the agreement as a take it or leave it contract, with no discussion or negotiations about rates of pay. Similarly, Mr. Monaghan/Ms. Taylor submit that Rossa was required by Buckley Cartage to apply for independent operator status with WSIB or obtain his own sickness and accident insurance. As an example of the one-sided nature of the agreement, they point to the circumstances of Rossa s termination in 2009, when Buckley Cartage removed his tractor from its CVOR coverage, cancelled the insurance, and removed its license plates from the vehicle. [96] Mr. Monaghan/Ms. Taylor also point to a number of circumstances where Buckley Cartage s employee drivers and independent operators were treated in the same manner, as evidence of a lack of independence on Rossa s part. These include the common set of rules and procedures, disciplinary actions that could lead to dismissal, as well training programs and log book entry requirements. [97] Mr. Monaghan/Ms. Taylor also downplay the significance of ownership of the tractor: In the circumstances of this case, the ownership by Rossa of his tractor is not a sufficient indication of an entrepreneurial endeavor to constitute him an independent contractor. As discussed previously Rossa and his truck were engaged full-time in driving for Buckley. There was no possibility of enhancing profit by driving the shortest route as the PC Miller software was already calculating the shortest route. Fuel costs were subsidized by Buckley Cartage. The frequency and type of maintenance required on the tractor was controlled by Buckley Cartage and by provincial regulation. Buckley Cartage had arranged circumstances so that the equipment cost borne by independent operators was balanced by the higher mileage rate paid to them compared to company drivers. The ultimate compensation available for company drivers and owner operators was essentially the same. [98] In Mr. Monaghan/Ms. Taylor s view, Buckley Cartage hired two categories of drivers in order to provide flexibility, but it is only when a driver owns his own CVOR and makes his own arrangements with customers that he should be accorded independent operator status. [99] Mr. Monaghan/Ms. Taylor accept that the entire relationship between the parties must be considered in determining whether a driver is an worker or an independent operator, applying the characteristics set out in Board Operational Policy Manual (OPM) No , and the cocalled business reality test established through Tribunal jurisprudence. In so doing, and for reasons set out in detail in their submissions, they argue that the prevailing character of the relationship in this case is that of a worker/employer and not an independent operator.

18 Page: 17 Decision No. 1307/13 [100] They also submit that the framework for undertaking a profit and loss analysis set out in OPM Document No favours a finding that Rossa was a worker: Opportunity to profit and exposure to the risk of loss are related to the exercise of entrepreneurial judgment. A true independent operator generally has the prospect of a variable profit or potential variable loss, depending upon the economic performance of the enterprise. [Decision No. 921/89] Here, all Rossa could do was to arrive with his tractor ready to drive the maximum allowable hours in Canada and the U.S. according to the instructions of Buckley Cartage. His ability to earn a profit or generate a loss was out of his hands. The Tribunal s task is to distinguish the cases where ownership of a tractor is a sign of something bigger - an entrepreneurial exposure to profit and loss, that entails more than simply driving for one company, full-time, over an extended period. [101] Mr. Monaghan/Ms. Taylor also submit that not all of the required features of an owneroperator relationship set out in the Board s trucking industry-specific questionnaire are present, specifically requirements (b) and (c), which read: The owner-operator has the right to exercise a choice in selecting and operating the vehicle and has market mobility in that he/she has discretion to enter into contracts of any duration to transport goods and maximize profits. The principal does not have the right to exercise control over the owner-operator s operations except to the extent that loads are offered, and destinations and delivery schedules are established by the principal s contract with the shipper and except for the joint responsibilities set out in federal and provincial licensing and related statutes. [102] They argue that Ross did not have market mobility, since his agreement gave Buckley Cartage exclusive use of his tractor, thereby removing his right to exercise a choice in operating the vehicle, or entering into other contracts to transport goods. And also that Buckley Cartage had a high degree of control over Rossa s operations, telling him where and when to attend work, the power to discipline him, and the imposition of extensive rules and regulations he was required to comply with. [103] In summary, Mr. Monaghan/Ms. Taylor rely on what they characterize as the following crucial concepts in support of a finding that he is a worker for the purposes of the Act: - Buckley Cartage exercised complete control over the relationship - the terms of the contract, the customer relationships, the fees available to be earned by Mr. Rossa, the place of work and manner in which his work was preformed; - Buckley Cartage directed Mr. Rossa in the performance of his work. Mr. Rossa was subject to an extensive Rule book, a progressive disciplinary process, and compulsory training; - Mr. Rossa was fully integrated into Buckley operations in the same way as any company driver. He was another driver unit available for dispatch to utilize in furtherance of the Buckley Cartage business; - Mr. Rossa had no room for independence. His day to day work was confined by Buckley dispatch and rules on the one hand, and government regulations concerning hours of operation, speed limits and the like on the other; - Mr. Rossa s intention was to drive full-time for Buckley Cartage. A grander intension cannot be determined in this case from the terms of a standard Buckley agreement Mr. Rossa did not negotiate, and could not read or comprehend;

19 Page: 18 Decision No. 1307/13 (x) - Mr. Rossa s ownership of the tractor does not constitute him an independent contractor on the facts of his case. There are no other markers of a large entrepreneurial undertaking. He was not operating his own separate business. His compensation is equivalent to a company driver, when all is said and done. Murray submissions [104] Mr. Murray adopts the submissions made by Mr. Monaghan/Ms. Taylor. [105] He agrees that the totality of the relationship between the parties must be considered in determining whether a person is a worker or an independent operator, and that indicators favouring both findings are commonly present. He continues: No one factor in the assessment is determinative. It is the substance of the relationship between the parties rather than the form of the relationship which determines whether a person is a worker or an independent contractor. The question to be asked is what is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship? [Mr. Murray s emphasis] [106] In Mr. Murray s view, the substance of Rossa s relationship with Buckley Cartage was indistinguishable from that of a worker, the only difference being the form of the agreement and method of payment. However, in substance even the quantum of payment is indistinguishable as Buckley accounted for the increased cost of independent contractor status in the corresponding remuneration and ensured that after costs an independent contractor and [employee driver] received the same remuneration. [107] Mr. Murray also submits that the move away from employee drivers in the transport industry, as described by Buckley in his testimony, is being done in order to avoid WSIB premiums which, in his view results in an artificial form of independent contractor status which in reality and substance is an employer-worker relationship. [108] In summary, Mr. Murray submits: If Rossa s situation is considered in light of the criteria outlined in Operational Policy Manual Document No it is clear that with the exception of the form of the relationship and the fact that he owned/leased the tractor in question, that in all other respects his situation corresponds to that of a worker. His activity was strictly controlled and constrained by Buckley. They provided instruction on how, when and where his actions were done, provided training and disciplined him, required him to either perform the work himself or provide someone that was acceptable to them, determined when he worked (in that they provided the runs to him), restricted his ability to use the one asset he owned in the service of any other company, determined what order he would do his deliveries in (based on their determination of the time of pick-ups and drop-offs), was integrated entirely into Buckley s operations, was paid bi-weekly on the same schedule as workers, held all of the licenses/insurance/ownership documentation necessary for Rossa to work, had a continuing need for Rossa s services, controlled the worksite and other equipment (trailers) that Rossa worked at, and was the only party dealing with the public. (xi) Libin submissions [109] As noted earlier, I have determined that Mr. Libin s clients, Pace and Trac, were not Schedule 1 employers at the time of the November 18, 2008 accident. [110] Mr. Libin s submissions do not deal with the issue of independent operator/worker status. Rather, he asks for an order pursuant to section 29(4) of the Act, that no damages, contribution or

20 Page: 19 Decision No. 1307/13 indemnity be recoverable against Pace and Trac for the portion of the loss or damage that was caused by the fault or negligence of any Schedule 1 employer. (xii) Orlando/Burrison submissions [111] Mr. Orlando/Ms. Burrison submit: Robert Babicki should not be precluded from proceeding with a civil action against Frank Rossa because the evidence heard and received in relation to this Application clearly establishes that, at the time of this incident, Frank Rossa was working as an independent operator and not an employee of Buckley. In the alternative, if it is determined that Frank Rossa was a Schedule 1 worker for Buckley and working in the course of his employment at the time of the incident, then Robert Babicki should not be precluded from receiving Statutory Accident Benefits from Allstate because he has a civil action against the Interested Parties, Tract Lease Inc., et. al. [Pace and Trac], which are not Schedule 1 employers. [112] Mr. Orlando/Ms. Burrison take the position that, although Rossa s English language limitations prevented him from understanding the terms of his agreement with Buckley Cartage when he signed on to work for them in August 2006, his sons translated the agreement for him shortly thereafter, and he understood that he was joining Buckley Cartage as an independent operator. He was also made aware by his sons that the WSIB had classified him as an Independent Operator, in response to the application he submitted in August [113] As far as the operation of the agreement is concerned, they point out that the routes and mileage Rossa drove varied from month to month. Buckley Cartage did not guarantee Rossa any trips, but if routes were available, Rossa had the ability to choose which ones he would take, or to refuse all of them. He was not a member of the union which represented employee drivers, and was not paid for vacation days or sick days when there were no routes available for him, nor did Buckley Cartage provide Rossa with any extended health, sickness or disability benefits. In addition, Buckley Cartage did not contribute or deduct CPP or EI premiums or issue Rossa a T4 or T4A income tax slip. Rossa operated as a sole proprietor who was required to file a GST return. [114] Mr. Orlando/Ms. Burrison acknowledge that, although Rossa was free to drive for other transport companies, his agreement with Buckley Cartage did not allow him to use his tractor for any such work. However, they also point out that Buckley Cartage was similarly not permitted to use Rossa s tractor for any reason when Rossa was not driving it. [115] Mr. Orlando/Ms. Burrison set our various responsibilities for Rossa and Buckley Cartage under the terms of their agreement, and identify an extensive list of benefits provided to employee drivers under the terms of the collective agreement in place in the workplace, none of which were available to independent operators such as Rossa. [116] Mr. Orlando/Ms. Burrison also identify the various factors set out in OPM Document No that are taken into account in determining whether a driver is a worker or independent operator, as well as the specific questionnaire developed by the Board for the trucking industry. They also accept the relevance of the business reality test, set out in Tribunal jurisprudence, and the various factors that are appropriately taken into account in making a status determination.

21 Page: 20 Decision No. 1307/13 [117] Mr. Orlando/Ms. Burrison submit that all prior Tribunal cases involving the relationship between a driver and a trucking company include elements of both an independent operator and a worker status, but point to specific decisions that emphasize the significance of two factors: the capital investment and the clear intention of the parties. They also point to jurisprudence which establishes that parties can have an exclusive relationship that is not necessarily an employment relationship, particularly in the trucking industry. [118] As far as the intention of the parties in this case is concerned, Mr. Orlando/Ms. Burrison submit that the agreement itself, which was signed by both Russo and Buckley Cartage, and formed the basis of their arrangement, specifically states that Rossa was to be considered an independent operator and not an employee. They also point out that Russo and Buckley both confirmed this intention during testimony at the hearing, and that the Board agreed with this characterization in finding that Russo was an independent operator for purposes of the Act. [119] Mr. Orlando/Ms. Burrison ask me to give considerable weight to the significant investment Russo made in purchasing his tractor. They also point out that this vehicle allowed Rossa to operate his business, with the power to decide what company he wanted to work for, and to move from company to company as he did during the period. [120] They also submit that Rossa was keenly aware of his degree of financial risk as an independent operator: Mr. Rossa bore the entire financial burden of the Lease for the Tractor. If he did not receive trips/routes from Buckley or was sick or on vacation, he did not receive any remuneration from Buckley, but he was still responsible for the Lease payments of $2, per month to Wells Fargo. In addition to the Lease payments, Mr. Rossa was responsible for paying for the plates, vehicle permit, Commercial Vehicle Operator Registration certificate and insurance on the Tractor on a monthly basis. Mr. Rossa paid for all the maintenance on his Tractor, which had to be performed by non-buckley truck mechanics. The maintenance included, but was not limited to, annual inspections and emissions testing, repairs, oil changes, brakes and tires. Mr. Rossa also paid for a cell phone, any safety equipment required for the Tractor and for a parking spot for his Tractor when it was parked off the Buckley premises. If Mr. Rossa was offered a route/trip by Buckley, he was responsible for paying for the fuel for his trip. In addition, if his Tractor was no longer driveable during his trip, he was responsible for paying for a replacement vehicle to complete his trip. Mr. Rossa was also responsible for paying for any damage to equipment provided by Buckley. Mr. Rossa s 2008 tax return reveals that extent of his financial risk as an Independent Operator, as his expenses for that year totaled $79,555.80, leaving him with a net business income of $17, [121] Rossa also remained responsible for lease payments following the November 2008 accident, and was forced to give up his tractor in 2009 when he could no longer afford to make the monthly payments. [122] Turning to the issue of the exclusive nature of the arrangement between the parties and the degree of control exercised by Buckley Cartage, Mr. Orlando/Ms. Burrison submit that, while Buckley Cartage maintained a degree of management of the Tractor and Mr. Rossa s conduct, this made commercial sense given the expectations of the trucking industry. They explain: Buckley was in the business of transporting goods to customers across Ontario and North America. This required coordination with other transport companies and industries in a limited time frame. Mr. Rossa was part of an interdependent relationship that allowed Buckley s business, as well as his own business, to succeed. By providing Mr. Rossa

22 Page: 21 Decision No. 1307/13 with timelines to pick up or drop off a load when he called in to dispatch for a transport trip, Buckley could ensure that their customers goods were being delivered or picked up in a timely manner. Similarly, by Mr. Rossa operating his Tractor with the Commercial Vehicle Operator Registration Certificate, Insurance, Vehicle Permit and Plate and Ontario Apportioned Cab Card obtained under Buckley s name, Buckley was increasing the efficiency in which permits could be obtained and goods could be transported to their customers. [123] They also argue that the requirement to submit daily log notes, and to monitor Russo s conduct and meet out discipline, were quality control measures put in place by the company to ensure that their business was not being placed in jeopardy. [124] Mr. Orlando/Ms. Burrison summarize their position as follows: In summary, Mr. Rossa was free to fully manage the principal tool of the industry, that being his Tractor. He was free to make leasing arrangements with any lender, was free to receive maintenance work from any mechanic, and was free to sell or dispose of the Tractor. Mr. Rossa was free to enter into an exclusive contract for services with Buckley, if that arrangement was one which was profitable for him. He was also free to end that Agreement with Buckley if it was no longer profitable and take his Tractor to another company. Buckley did not treat Mr. Rossa in any way that would suggest he was an employee of Buckley; in fact it is clear from Buckley s testimony that employees of Buckley [Cartage] were treated very differently than owner/operators. Buckley did not provide Mr. Rossa with any vacation pay or overtime pay, extended health, sick, disability or pension benefits. Buckley did not contribute to or deduct any CPP, EI or tax payments to the government on Mr. Rossa s behalf or issue him a T4 of T4A. There was no job security for Mr. Rossa and he was not provided with any pay or compensation from Buckley after this Incident or upon the termination of Agreement. [125] Finally, Mr. Orlando/Ms. Burrison take the position that, regardless of whether Rossa was a Schedule 1 employee for Buckley Cartage and working in the course of his employment at the time of the August 2008 accident, Babicki should still be entitled to receive accident benefits from Allstate, on the basis that Pace and Trac were not Schedule 1 employers. (xiii) Monaghan/Taylor reply submissions [126] Mr. Monaghan/Ms. Taylor submit that the agreement between Buckley Cartage and Rossa did not capture the intention of this unsophisticated person of limited comprehension of English for the purpose of applying the business reality test, and that a robust analysis of the various criteria suggest that the prevailing character of the relationship was that or worker and employer. [127] In their view, Mr. Rossa s intention is appropriately determined on the basis of his testimony at the hearing, where he stated that he wanted to work as a truck driver : His understanding of the relationship is simple and practical, not philosophical. Buckley will pay him a certain amount to drive for them full-time. This is what he wants, so he accepts the work, and signs the paperwork that Buckley requires him to sign, in order to do the work. It is specious to extrapolate a grand intent in this case when Mr. Rossa s intention was clear from his own evidence and in circumstances where his own understanding of the relationship is plainly unsophisticated. [128] As far as the capital investment in the tractor is concerned, Mr. Monaghan/Ms. Taylor take the position that the manner in which compensation for non-employee drivers was determined by Buckley Cartage minimizes the drivers degree of risk and opportunity for profit and leaves them in substantially the same situation as company drivers. In their view, Rossa s

23 Page: 22 Decision No. 1307/13 capital investment in the tractor is not sufficient, in the absence of other factors, to indicate that he was performing services in a business on his own account. [129] Mr. Monaghan/Ms. Taylor accept that Tribunal decisions have found a continuum between worker and independent operator in the transport industry, based on particular facts and circumstances, and that the particular situation in this case situates Rossa at the worker end of the continuum. (xiv) Murray reply submissions [130] Mr. Murray submits that the Tribunal does not have jurisdiction to make any order regarding Babicki s right to receive Statutory Accident Benefits, as requested by Mr. Orlando/Ms. Burrison. In his view, the Tribunal s authority is restricted to the specific findings set out in section 31 of the Act, and any other determinations are within the purview of other bodies. [131] Mr. Murray also submits that Rossa was significantly limited in the use of his only capital investment, his tractor. It could only be used for Buckley Cartage deliveries, and any alternative driving arrangements required the company s prior approval. In his view, these are significant restrictions in that they minimize [Rossa s] ability to use his capital investment to the point where the tractor is in fact under the complete control of Buckley. [132] Mr. Murray also submits that Mr. Rossa s freedom to drive for other transport companies was artificial: It is true that he could drive for another company just as any other Buckley employee could secure a second job driving for another company. If Rossa did drive for another company his only operational tool, the tractor, would not be available as it is restricted for use by Buckley. As such, Rossa did not have any real growth opportunity. Rossa had no mobility, and his profit margin and market size were fixed by Buckley. [133] Finally, Mr. Murray supports Mr. Monaghan/Ms. Taylor s position that the increased mileage rates and fuel surcharge payments made by Buckley Cartage to non-employee drivers accounted for the increased operational costs associated with tractor ownership, reduced the risk of loss, and placed these drivers in a remuneration scheme equivalent to employee drivers. (xv) Analysis and findings [134] The issue of whether an individual is an employee/worker or an independent operator/contractor has a long history in both court jurisprudence and rulings of this Tribunal. The widely recognized and often quoted Canadian judicial authority setting out the proper framework for considering the issue is the Supreme Court of Canada ruling in Ontario Ltd v. Sagaz Industries Canada Inc. (2001) SCC 59. In that decision, Major J., for the court, reviewed a number of earlier authorities and concluded (at paragraphs 46-48): In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, supra, that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations... (p. 416). Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, supra, at p. 38, that what must always occur is a search for the total relationship of the parties:

24 Page: 23 Decision No. 1307/13 [I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose. The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones. Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker s opportunity for profit in the performance of his or her tasks. It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case. [135] This approach has been followed by the Tribunal in many cases over an extended period. A number of tests have been used to examine the issue, leading to the development of what is referred to as the business reality test. Decision No. 885/91, for example elaborates: The best a Panel can do in these situations is weigh the various indicia and form an impression as to the prevailing character of the relationship. WCAT Decision No. 921/89 (1990), 14 W.C.A.T.R. 207, traced the evolution of tests developed by the Tribunal to deal with these situations. It is not necessary to trace the evolution outlined in that decision. The decision went on to characterize the test which has evolved at the Appeals Tribunal as, in essence, a "hybrid test" or "business reality test." [136] And in Decision No. 921/89, the Panel stated: The actual name applied to the test, whether "integration" test, "organization" test, "hybrid" test or "business reality" test is not important. What is important is that parties have an idea of the factors to be considered by the Appeals Tribunal in determining status as a "worker" or "independent operator". By referring to these factors, parties may themselves develop a sense of the character or reality of the business relationship and thus make a realistic assessment of the situation. It is the opinion of this Panel that the factors enumerated in this decision assist in this goal to a greater extent than merely asking whether the work is "integral" to the overall business operation. The question to be asked is 'what is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship?' The resulting analysis, based on business reality, should lead to a decision in accordance with the real merits and justice of the case. [137] The criteria commonly considered under the business reality test are as follows: whether the individual is in a business sufficiently independent that he or she bears the costs and risks of compensation;

25 Page: 24 Decision No. 1307/13 ownership of equipment; evidence of control; method of payment; business indicia; the degree of integration; furnishing of equipment; chance of profit or loss; the parties intentions; business or government records which reflect on the status of the parties; whether the individual must supply the services personally or can substitute other persons; the economic or business market; the influence of legislative and licensing requirements; and whether the person structures his or her affairs for various purposes as if he or she is an independent operator. [138] These considerations are consistent with the policies and guidelines in Board OPM Document No , set out earlier in this decision. [139] There is no dispute among the parties in this appeal that the proper approach to determining whether a person is a worker or an independent operator is multifactorial. The significance and weight to be given to each relevant factor will vary, as is clear from various Tribunal decisions. [140] The representatives have all referred me to some of this jurisprudence in support of their positions (Decision Nos. 1906/11, 514/11, 1030/13, 2073/07, 1142/08 and 598/12 for Mr. Monaghan/Ms. Taylor; 107/10, 1658/11, 16/11, 1443/06, 896/00, 1720/03, 2239/09, 805/03, 1362/06 and 834/09R for Mr. Murray; and 514/11, 2073/07, 1142/08, 598/12 and 940/05 for Mr. Orlando/Ms. Burrison.). I have reviewed all of these decisions and, while they are useful in describing relationships among players in the trucking industry, it is clear that they are all highly fact-specific. My challenge here is to apply the framework, which is common to all Tribunal appeals in this field, to the specific facts and circumstances of the case before me, and to determine which factors and considerations predominate. [141] One factor given significant weight within the trucking industry is ownership of the tractor. If an individual makes a significant capital outlay in purchasing or leasing a tractor, and assumes the corresponding obligations and risks, this is generally seen as weighty evidence in favour of a finding of independent operator status. [142] There is no dispute in this case that Rossa owned his tractor, pursuant to a lease agreement with Wells Fargo. Buckley Cartage was not a party to this lease agreement and had no responsibilities under its terms.

26 Page: 25 Decision No. 1307/13 [143] It has been argued by Mr. Monaghan/Ms. Taylor, as well as Mr. Murray, that the differential mileage rate paid to employee-drivers and independent operators was intended to cover the financing costs for the tractor. Using information contained in the Case Record, they submit that Rossa s monthly earnings were approximately $2,000 higher than an employeedriver s, and that this approximates the monthly lease payment for the tractor. [144] I accept that the mileage differential paid to various drivers evidences a recognition on the part of Buckley Cartage that independent operators have added financial obligations. They are required under the terms of their agreement to provide a tractor for use in Buckley Cartage s business and, given the competitive nature of the trucking industry, as noted by Buckley in his testimony, a transport company must provide drivers with a competitive remuneration package. However, on the other hand, the facts in this case clearly establish that Rossa took on a significant degree of risk in purchasing his trailer. After his contract with Buckley Cartage was terminated, and he was unable to find alternative work, he was not able to make his monthly payments under the lease, and his investment was forfeited. [145] In my view, Rossa s investment in purchasing and financing his tractor is the strongest factor in favour of a finding of independent operator status. [146] The intention of the parties in forming their relationship is another important consideration. A written agreement or contract if often useful in making this determination. [147] Buckley Cartage developed an Independent Contractor agreement that had to be signed by any non-employee driver who wanted to work for the company. The standard form agreement was tabled as an exhibit in this appeal, and there is no dispute that Rossa signed one when he re-joined Buckley Cartage in August The title of the agreement is strong evidence of Buckley Cartage s intention to treat its non-employee drivers as independent operators, and Article specifically defines the relationship as follows: It is hereby acknowledged, understood and agreed that the relationship between the Company and the Independent Contractor creased herein is not one of principal and agent, nor master and servant, nor employer and employee. The relationship between the Company and the Independent Operator is that of mutually aligned contractors each providing in its role to the success of this Agreement for the transportation services contracted and provided. [148] The fact that Rossa also signed this agreement would normally be considered strong evidence of his intentions regarding the type of relationship he was entering into. However, as Rossa clearly testified at the hearing, his limited English language facility prevented him from understanding the content of the agreement when he signed it. He wanted to work for Buckley Cartage, and he understood that signing the agreement was a pre-condition for doing so. He did not seek or obtain legal advice before signing, and although Buckley testified that there was some capacity to negotiate mileage rates, no such negotiation took place in Rossa s situation. The contract is accurately characterized as a take it or leave it proposition and, in my view, Rossa was not fully aware of the implications when he signed the document. While Rossa went on to testify that his sons, who speak English, subsequently went over the document with him, there is no suggestion that they were involved in the trucking industry and would have sufficient knowledge of the relevance and significance of the highly legal language used in the agreement. [149] While I accept that the agreement itself is evidence of an intention on the part of Buckley Cartage and Rossa to enter into an independent operator relationship, the absence of legal advice

27 Page: 26 Decision No. 1307/13 or negotiation, and Rossa s acknowledged limited language facility, reduces the weight given to this factor in the particular circumstances of this case. [150] There are also a number of other factors present in this appeal that could favour a finding of independent operator status. Rossa signed and filed a WSIB Independent Operator application with the Board, which was approved. However, as was the case with the Buckley Cartage Independent Contractor Agreement, Rossa did not understand the content of the application when he signed it. He simply knew that he had to sign the document as a condition of working for Buckley Cartage, and the weight of this factor is reduced accordingly. Buckley Cartage did not provide Rossa, or any of its independent operators, with any vacation pay, statutory holiday pay or medical benefits, nor did it contribute to any pension plan. In contrast, a wide range of benefits were paid to employeedrivers under the terms of a collective agreement. Buckley Cartage could terminate its arrangement with Rossa, as provided for in the agreement, without triggering severance entitlements. Buckley Cartage did not make any deductions from Rossa s pay for CPP or EI premiums, nor did it make any at-source income tax deductions. No T4 or T4A slips were issued to Rossa. The agreement between Buckley Cartage and Rossa did not prevent Rossa from driving for another transport company or providing a substitute driver for the tractor. However, the tractor itself was dedicated to exclusive use by Buckley Cartage, and any substitute driver required Buckley Cartage s approval. Buckley Cartage provided limited direction to Rossa on a daily basis. His travel routes were left up to him, and Buckley Cartage was just concerned that the goods be delivered to the customer at the agreed-upon time. However, Rossa and other non-employee drivers were paid a mileage rate calculated by a computer software program, based on the shortest distance to the customer s premises. Buckley Cartage was under no contractual obligation to provide Rossa with any set amount of work. However, the evidence suggests that, subject to periods when he was out of the country, Rossa drove for Buckley Cartage on a daily basis. Rossa, not Buckley Cartage, was responsible for maintaining and repairing the tractor to a standard required under the terms of the agreement, as well as government regulatory requirements. He was also obliged to reimburse Buckley Cartage if he damaged any equipment owned by the company. Rossa was free to terminate his agreement with Buckley Cartage, and market his services to other transport companies, and in fact did so during the period. Rossa was not required to wear a Buckley Cartage uniform, but he chose to do so. [151] Turning now to the factors favouring a worker/employer relationship, a number are present in this case.

28 Page: 27 Decision No. 1307/13 [152] Significantly, there are few indicators that Rossa was operating an independent business enterprise. [153] Rossa did not incorporate a company register a business name, and had no office or business phone number. He was paid by cheque, issued in his name. And his 2008 T1 income tax form, which was tabled as an exhibit at the hearing, reflects that he reported income as a selfemployed individual; he paid CPP premiums; he did not remit GST payments; and his accountant advises that he was eligible to make RRSP contributions for the subsequent tax year. [154] Rossa did not hire any employees, and his only asset was his tractor. Under the terms of his agreement with Buckley Cartage, the tractor could only be used to deliver goods for Buckley Cartage and no other transport company. While it is accurate to say in a technical sense that Rossa was himself free to drive for other companies, there was no such flexibility in any real sense. He did not have any other vehicles that could be used for that purpose, and no employees who could drive the Buckley Cartage tractor. [155] There is also no suggestion that Rossa intended to expand his business by hiring more people or buying more tractors. His pattern of work, as described in testimony, was to make arrangements to deliver goods for a single transport company, using his one tractor, and to work as much as possible for that one company. And while Buckley Cartage was not contractually bound to provide Rossa with regular work, Rossa and Buckley both testified that he in fact worked on virtually an every-day basis, subject to times when he was out of the country visiting family in Poland. [156] Rossa was also not involved in marketing his services to potential clients, a function commonly associated with operating a business. He had all the work he needed with Buckley Cartage. And it was Buckley Cartage, not Rossa, which was responsible for all customer-related dealings. Rossa did not negotiated delivery charges, identify schedules, collect fees, administer accounts or deal with customer complaints; he simply picked up the trailer and bill of lading assigned to him by the Buckley Cartage dispatcher each morning, completed the delivery, advised the dispatcher accordingly, returned the trailer to the Buckley Cartage depot, and repeated the process the following day. [157] The degree of control exercised by a transport company over its drivers is an important factor in determining the status of a driver and, in my view, Buckley Cartage had a high degree of control in its arrangements with Rossa and other independent operators. The CVOR, license, insurance, and registration documentation for Rossa s tractor were all held by Buckley Cartage. When Rossa s agreement was terminated, Buckley Cartage had the right to remove all registrations relating to Rossa s tractor, including the license plate, eliminating Rossa s ability to even drive his vehicle off the company s premises. Once the Independent Contractor Agreement was executed, Buckley Cartage assumed full control of the tractor. The tractor was painted with the company logo and company uniforms were provided to drivers, at their option. And, significantly, Rossa was required to forego any opportunity to use his tractor for any purpose other than to make deliveries for Buckley Cartage. [158] The terms of the contractual arrangements with Buckley Cartage also limited Rossa s ability to exercise entrepreneurial skills in increasing profitability. This was not a situation where efficiency enhanced remuneration. Buckley Cartage determined when and where Rossa s work would take place, and he was paid a set mileage rate, determined by a computer program on the basis of the shortest distance to the customer s premises. Early deliveries did not generate

29 Page: 28 Decision No. 1307/13 a bonus payment, and the long-distance nature of the work did not allow for an opportunity to add a second delivery and thereby increase wages. Profit margins were determined through negotiations between Buckley Cartage and its customers, and although Buckley Cartage assumed a degree of risk should problems associated with a delivery increase costs that could not be passed on to the customer, Rossa was shielded from any such risk. He was paid for all deliveries, based on the assigned mileage, regardless of whether Buckley Cartage was paid by the customer. [159] Rossa was also required to comply with a comprehensive set of rules and regulations set out in a Driver Handbook issued to all drivers, regardless of status. It detailed operational expectations, inspection requirements, log book procedures, security expectations and customs procedures. The Handbook, which was signed by the drivers, also included schedules setting out policies relating to workplace violence; alcohol and drug use, including testing; safety practices; and smoking policies. All schedules had to be individually signed. Buckley Cartage also had the authority to discipline Rossa, and did so over the course of his time as a driver. Buckley Cartage developed written documents titled Company Record of Written Corrective Notice and Record of Last Chance Agreement, and documentation provided during the hearing confirm that Rossa was disciplined for the dangerous operation of his vehicle, improper pre-trip inspection, speeding, and falsification of a log book entry. [160] It is also clear on the evidence that the relationship between independent contractors working for Buckley Cartage and its employee drivers was highly similar in a number of ways. Employee drivers were unionized, and various benefits, discipline and termination policies were set by the terms of a collective agreement that did not apply to independent contractors. However, a number of key components of the employment relationship applied to all drivers, regardless of status. [161] The actual work performed by all drivers was essentially the same. Trailers were assigned to specific tractors by Buckley Cartage dispatchers on a daily basis, and driven to customer locations. Each category of driver was paid on the basis of mileage driven, and payments to all drivers were made on a bi-weekly basis by cheque. There was a rate differential, based primarily on a recognition that employee drivers were not required to supply a tractor, but the manner of payment was the same. All drivers, regardless of status, were required to participate in the same regular training programs, complete the same log books, adhere to the same rules and procedures, and to sign the same Driver Handbook and accompanying schedules. All drivers were also subject to discipline and termination. [162] Mr. Orlando/Ms. Burrison point out that prior Tribunal decisions have established that parties can have an exclusive relationship that is not necessarily one of employer/employee. I accept that this is the case. However, again, the particular facts and circumstances of an individual case must be taken into account. One example raised by Mr. Orlando/Ms. Burrison is illustrative. [163] In Decision No. 940/05, the Vice Chair found, on the basis of the relevant facts, that the exclusive relationship between the company and the independent operator reflected a mutually beneficial interdependent relationship. He made this finding on the basis of evidence establishing that the independent operator retained a status separate from the operation of [the company], and that the weight accorded to the degree of control exercised by the company was minimized. In that regard, the Vice Chair stated:

30 Page: 29 Decision No. 1307/13 However, in my opinion, the control stipulated by the contract in the present case had little or nothing to do with the manner in which [the independent operator] carried on his business but focused primarily on the manner in which [the independent operator] represented the interests of [the company]. The controls were, in essence, public relations controls that did not go to the heart of the manner in which [the independent operator] conducted his business. [164] In my view, and for reasons I have outlined, the various controls present in the relationship between Buckley Cartage and Rossa were not driven by public relations or other similar non-business considerations. [165] In each appeal it is important to accept that exclusivity in arrangements may not reflect an employer/worker relationship but, in my view, barring particular exceptional circumstances, the fact that a driver s entire relationship is with one transport company, who provides the equivalent of full-time work, is a strong indicator of an employment relationship. I agree with the comments made by Robertson J.A. in Joey s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission)[2001] C.C.S. No. 1596, (N/B.C.A.): To hold that the drivers in those cases were carrying on business for themselves is to ignore the degree of control exercised by the company over its employees. Specifically, drivers worked full-time for one employer, on a continuing basis, and were not permitted to work for others. If you are working full-time in the business of another, it is painfully difficult to accept that you are carrying on your own business as an independent operator. [166] As noted earlier, determining the status of drivers in transport industry invariably involves a balancing of relevant factors, some favouring a finding of independent operator status and others indicative of an employer/worker relationship. No one factor is determinative, and the weight accorded to the factors varies depending on the facts and circumstances of an individual employment relationship. [167] For reasons I have outlined, while Rossa s relationship with Buckley Transport includes some factors favouring independent operator status, I find that they are outweighed by other factors more typical of the status of a worker. [168] I have already determined in this appeal that Allstate, Buckley Cartage and Wells Fargo were Schedule 1 employers at the time of the November 18, 2008 accident, that Babicki was a Schedule 1 worker, and that Babicki is barred pursuant to sections 28(1) and 31(1) of the Act from maintaining his civil action against these companies. Having now found that Rossa is also a Schedule 1 worker, the bar extends to him as well. Pace and Trac, on the other hand, are not Schedule 1 employers, so the sections 28 and 31 findings do not apply to them. [169] To summarize, I find that the respondents, Robert Babicki by his litigation guardian, Anetta Babicki, and Anetta Babicki personally, are barred by sections 28(1) and 31(1) of the Act from proceeding with the action for damages in the Ontario Superior Court of Justice File #CV against Fransiszek Rossa and all of the applicant and co-applicant companies that qualify as Schedule 1 employers. These companies are: Buckley Cartage Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada. [170] I further find that the respondents are not barred by sections 28(1) and 31(1) of the Act from proceeding with the action for damages in the Ontario Superior Court of Justice File #CV against any or all of the interested parties that do not qualify as Schedule 1 employers. These companies are: Pace International Inc., Interpol Inc. and Trac Lease Inc.

31 Page: 30 Decision No. 1307/13 [171] Mr. Libin, on behalf of Pace and Trac, has asked for an order under section 29(4) of the Act, limiting their exposure in the civil action. [172] Section 29 reads, in part, as follows: (2) This section applies in the following circumstances: 1. In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker s entitlement to benefits under the insurance plan. (3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action. (4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action. [173] I find that a declaration under section 29(4) is appropriate in the circumstances of this appeal, in order to ensure that the remaining defendants in the civil action are not responsible for the liability of those companies who have been removed from the action by virtue of the Act. [174] Accordingly, pursuant to section 29(4) of the Act, no damages, contribution or indemnity for any amounts determined under subsection 29(3) of the Act to be caused by the fault or negligence of the employer, director, executive officer or other worker of Buckley Cartage Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada are recoverable in a civil action. [175] Finally, Mr. Orlando/Ms. Burrison submits that, regardless of whether Rossa is a Schedule 1 employee, Babicki is entitled to continue to receive his statutory accident benefits from Allstate because Pace and Trac are not Schedule 1 employers. They ask that a provision to that effect be included in this decision. [176] Mr. Murray, on behalf of Allstate, submits that I do not have jurisdiction to make a determination of that nature. [177] I concur with Mr. Murray. My authority in this matter is restricted to determining whether the requirements of sections 28 and 31of the Act are present on the evidence, and if so, to what extent. Any consequences that flow from these findings are the jurisdiction of other tribunals or the courts.

32 Page: 31 Decision No. 1307/13 DISPOSITION [178] The application is allowed, in part. [179] Fransiszek Rossa was a worker in the course of his employment at the time of the workplace accident on November 18, [180] The civil action brought by in the Ontario Superior Court of Justice File #CV by Robert Babicki by his litigation guardian, Anetta Babicki, and Anetta Babicki personally Babicki is removed by sections 28(1) and 31(1) of the Act against Fransiszek Rossa, Buckley Cartage Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada. [181] The civil action brought by in the Ontario Superior Court of Justice File # by Robert Babicki by his litigation guardian, Anetta Babicki, and Anetta Babicki personally Babicki is not removed by sections 28(1) and 31(1) of the Act against Pace International Inc., Interpol Inc. and Trac Lease Inc. [182] Pursuant to section 29(4) of the Act, no damages, contribution or indemnity for any amounts determined under subsection 29(3) of the Act to be caused by the fault or negligence of the employer, director, executive officer or other worker of Buckley Cartage Limited, Wells Fargo Equipment Finance Corporation, and Allstate Insurance Company of Canada, are recoverable in a civil action. DATED: November 4, 2014 SIGNED: T. Mitchinson