Highlights of Noteworthy Decisions

Decision 771 16
J. Moore
  • Jurisdiction, Tribunal (federal worker)
  • Jurisdiction, Tribunal (right to sue) (Government Employees Compensation Act)
  • Postal workers (clerk)
  • Right to sue
  • Worker (contract of service)
  • Independent operator (postal worker)

The plaintiff in a civil action was a passenger in a vehicle driven by the defendant. They were making deliveries on behalf of a federal Crown corporation. The defendant brought an application under s. 31 of the WSIA to determine whether the plaintiff's right of action was taken away.

In Decision No. 771/16I, the Vice-Chair found that the Tribunal has jurisdiction to consider the application.
The defendant was employed by the Canada Post Corporation as a rural and suburban mail courier (RSMC). The plaintiff was an ergonomic assistant, who assisted in delivering the mail. Canada Post considered the defendant to be a full-time postal employee and the plaintiff to be a casual contractor and not a postal employee.
Section 4(2) of the Government Employees Compensation Act (GECA) provides that employees are entitled to receive compensation at the same rate as under the laws of the province where usually employed. Section 2 defines an employee as any person in the service of Her Majesty, or any employee of any corporation who is declared by the Minister to be an employee for the purposes of GECA. Section 12 provides that, where an accident happens to an employee in the course of employment, the employee has no claim against Her Majesty or any servant of Her Majesty other than compensation under GECA.
The Canada Post Corporation was created in 1981, under the Canada Post Corporation Act (CPCA), through which the federal postal service became a Crown corporation. Prior to that, the postal service operated under the Post Office Act (POA). Under the POA, a postal employee would have been a servant of Her Majesty. Under the CPCA, postal employees ceased to be servants of Her Majesty and, instead, were employed by the Crown corporation. Thus, postal workers are no longer covered by the first definition of employee in GECA. Rather, the second definition is relied upon, that is, an employee of a corporation who is declared by the Minister to be an employee. Such a declaration was issued by Order-in-Council in 1981.
The defendant submitted that the plaintiff was an employee to whom the Order-in Council applied. The plaintiff submitted that she was not an employee for the purposes of the Order-in-Council and that, accordingly, her right of action was not barred.
Section 2 of the POA defined a postal employee as a person employed by the Canada Post Office but did not include a mail contractor. In s. 2 of the CPCA, mail contractor is defined a person who has entered into a contract with the Corporation. There is not definition of postal employee in the CPCA. Section 12 of the CPCA states that the Corporation may employ employees and may engage the services of agents, advisors and consultants. Section 13(1) of the CPCA states that persons either employed or engaged are deemed not to be employed in the federal public administration. Section 13(5) provides that a mail contractor is deemed not to be a dependent contractor or employee.
In Canada Post Corp. v. C.U.P.W., the Federal Court of Appeal considered the legislative history and found that Parliament did not intend mail contractors to be postal employees. The Vice-Chair found that the Court was asserting that, notwithstanding what appeared in substance to be a relationship resembling a contract of service, Parliament chose deliberately to treat mail contractors as independent contractors and not employees. A number of tax court judgments followed the approach of the Federal Court of Appeal.
The Vice-Chair also considered a decision of the New Brunswick Court of Appeal in Canada Post Corp. v. Carroll, which found that the definition of employee in GECA could not be overridden by a contractual provision.
The Vice-Chair found the analysis by the Federal Court of Appeal to be more persuasive that the New Brunswick Court of Appeal. The New Brunswick Court gave insufficient consideration to the legislative history and did not address the conclusion of the Federal Court that the CPCA continued the status of rural mail carriers as independent mail contractors.
The Vice-Chair concluded that the plaintiff was an independent contractor and not an employee of the Canada Post Corporation. As such, she was not covered by the Order-in-Council that included employees of the Canada Post Corporation as employees for the purposes of GECA. Accordingly, the plaintiff was not entitled to compensation benefits through the Ontario insurance plan under s. 4 of GECA.
The plaintiff was not barred from pursuing her legal action.