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EVIDENCE - Witnesses

Tuesday, March 09, 2021 @ 6:10 AM  


Lexis Advance® Quicklaw®
Appeal by the employer from a decision allowing the respondent’s application for judicial review of an adjudicator’s decision that the adjudicator had no jurisdiction over the respondent’s unjust dismissal complaint. As a preliminary objection to the complaint, the appellant argued that the adjudicator had no authority over the complaint because the respondent was engaged by the appellant as an independent contractor and not as an employee. The adjudicator agreed. The appellant was in the business of cross-border package and parcel shipping. The respondent worked for the appellant as a driver. While the respondent was initially classified as an employee, he terminated his employment contract in 2005 and in 2006 negotiated a new agreement with the appellant. Under the new agreement, the appellant paid the respondent weekly pursuant to invoices submitted by him under his trade name, WB Enterprises, and no source deductions were taken from these amounts. The appellant allegedly terminated the agreement because the respondent failed to ensure that a driver replaced him while he was not able to drive due to illness. The adjudicator found that in the 2006 negotiations, the respondent declined an offer from the appellant to be engaged as an owner-operator employee, knowing full well the rights, entitlements and compensation available to him through this relationship. The adjudicator found the respondent was fully aware and made a conscious decision to act as an agent based on the differences in the financial remuneration. The Federal Court found the adjudicator’s decision unreasonable because nothing in the decision demonstrated that the adjudicator reasonably turned her mind to aspects of the evidence that could impact the weight and sufficiency of the parties’ evidence.

HELD: Appeal allowed. The Federal Court erred in finding that the adjudication decision was unreasonable. The adjudicator reasonably determined that the respondent was engaged by Loomis as an independent contractor. The adjudicator reasonably found that the respondent’s evidence regarding the terms of the 2006 agreement was self-serving and, instead of accepting this self-interested and uncorroborated evidence, determined the terms of the 2006 agreement through evidence on which both parties agreed. The adjudicator’s acceptance of the appellant’s evidence was reasonable when considered in light of the approach she adopted. There was no basis for finding that the adjudicator mischaracterized the respondent’s testimony or improperly assessed the evidence concerning the extent to which the appellant exerted control as to how the respondent’s services were to be performed.

6586856 Canada Inc. (c.o.b. TFI Transport 22 L.P.) v. Fick, [2021] F.C.J. No. 35, Federal Court of Appeal, W.W. Webb, J.M. Woods and A.L. Mactavish JJ.A., January 13, 2021. Digest No. TLD-March82021004