Highlights of Noteworthy Decisions

Decision 457 21
13/08/2021
K. Jepson
  • Transportation industry (truck driver)
  • Worker (test)

The employer operated in the trucking industry. Some of its drivers rented trucks from the employer. The employer appealed a decision of the Appeals Resolution Officer that these rental drivers were workers and not independent operators.

The appeal was dismissed.
The Board uses questionnaires to help determine worker/independent operator status. The auditor initially used the trucking industry questionnaire, but when the responses indicated that the drivers were not owner-operators, the auditor collected information through the general questionnaire. The ARO agreed with the auditor that the trucking industry questionnaire was not applicable.
However, the trucking industry questionnaire was applicable. Board policy provides that industry-specific questionnaires will be used for the industry in which they have been developed. Once the rental drivers did not meet the first criteria by not owning their trucks, they were workers, not independent owners, pursuant to that industry specific questionnaire. The drivers' responses that they did not own the trucks was essentially determinative of their status pursuant to the Board's own criteria.
When dealing with a specific industry such as the trucking industry, consistency across all levels of adjudication is a desirable goal and is best achieved when the test for worker/independent operator status is applied in a way that is consistent with and gives effect to the criteria set out in the Board's questionnaire. The cost of vehicle ownership and associated risks are factors emphasized in the trucking industry questionnaire. Under the questionnaire, the rental drivers are clearly workers because they do not own what is the most critical piece of equipment for the job: the truck. The fact that the rental drivers have a charge-back or deduction characterized as a "truck rental" charge does not result in those drivers assuming any of the burdens or risks associated with vehicle ownership.
The guidance contained in the trucking industry questionnaire was also consistent with the multi-factorial test in Board policy and Tribunal case law. Most of the factors pointed to worker status, including lack of ownership of the key equipment. The few factors that suggested independent operator status paying maintenance and fuel, and invoicing the employer were weak and far outweighed by those favouring worker status. While some of the drivers did carry loads for other customers, the evidence indicated that the majority of the work of the rental drivers was hauling loads for the employer, and that the employer was generally involved in the approval and payment collection for these other customers.
The employer submitted that it had created an arrangement in which drivers who could not own their own trucks were able to work as truck drivers without being employees of a trucking company. However, this argument only emphasized that the rental drivers were dependent upon the employer and were not able to conduct business on their own account.