THE ADVOCATE 373
VOL. 79 PART 3 MAY 2021
the federal Canada Labour Code, all include
“dependent contractors” within the definition of an
“employee”. Although there is no definition of
dependent contractors under either Saskatchewan’s
or Nova Scotia’s collective bargaining statute, the
labour relations boards in both provinces have held
that dependent contractors fall within the definition
of “employee” under their collective bargaining
67. Lyft Canada Inc v United Food and Commercial
Workers International Union, Local 1518, 2020
BCLRB 35. The union’s application was based on the
board’s s 139(a) exclusive authority to determine if
an individual was an employee for purposes of the
68. Flash Courier Services Inc v National Automobile,
Aerospace, Transportation and General Workers
Union of Canada (Caw-Canada, Local 114), 2002
CanLII 52815 (BC LRB). Flash conceded the vehicle
drivers (who operated their own vehicles and were
paid by commission) were employees for purposes of
the BC LRC even though all drivers signed contracts
acknowledging they were independent contractors.
In Flash Courier Services Inc, BC EST # D094/00,
the Employment Standards Tribunal held that a Flash
Courier vehicle driver was an employee under the BC
ESA stating: “Flash was not merely a dispatching
service which brokered courier opportunities. The
business which is Flash is a courier service. From
what I can see of what Flash has done, it is to act so
that Paul might believe he was ‘self-employed’ and
an ‘independent contractor’, and so as to make him
appear a self-employed independent contractor, for
the purpose of avoiding what are the obligations of
an employer while still maintaining effective control
over him” (at p 8). See also Certain Employees of
Lender Services Ltd v Lender Services Ltd, 2006 Can-
LII 39556 (BC LRB).
69. Old Dutch Foods Ltd v Teamsters Local Union No
213, 2005 CanLII 14546 (BC LRB). This decision was
ultimately confirmed by the British Columbia Court of
Appeal: Old Dutch Foods Ltd v Teamsters Local
Union No 213, 2006 BCCA 553.
70. All Tech Transport Ltd (Towing) v Teamsters Local
Union No 31, 2013 CanLII 21914 (BC LRB).
71. See e.g. International Paper Industries Ltd v Teamsters,
Local 213, 2000 CanLII 27508 (BC LRB); Trend
Transport Ltd v National Automobile, Aerospace,
Transportation and General Workers Union of
Canada (CAW-Canada), Local 2006, 2006 CanLII
1886 (BC LRB); B A Dawson Blacktop Ltd v Teamsters
Local Union No 213, 2009 CanLII 37830 (BC LRB);
and West Fraser Mills Ltd v United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union,
Local 1-425, 2012 CanLII 20347 (BC LRB).
72. An exception the British Columbia Court of Appeal
explicitly recognized in Macaraeg, supra note 32 (at
paras 96–97); see also Dominguez, supra note 32,
and Lewis v WestJet Airlines Ltd, 2019 BCCA 63,
leave to appeal refused 2019 CanLII 64825 (SCC).
73. British Columbia courts have recognized a claim for
severance pay for “intermediate category” or
“dependent contractors” (see e.g. TCF Ventures Corp
v The Cambie Malone’s Corporation, 2017 BCCA
129; Glimhagen v GWR Resources Inc, 2017 BCSC
761; Pasche v MDE Enterprises Ltd, 2018 BCSC
701; Kok v Adera Natural Stone Supply Co Ltd,
2018 BCSC 1542; and Liebreich v Farmers of North
America, 2019 BCSC 1074).
74. Dominguez, supra note 32.
75. Macaraeg, supra note 32 at para 24.
76. Dominguez, supra note 32 at para 233.
77. Ibid at para 234.
78. Ibid at para 236.
79. Ibid at paras 241–43.
80. Walter, supra note 41. This action has now been tentatively
settled for $30 million (payable to players
including those who played for BC WHL teams), but
the settlement has not yet received court approval
(see Walter v WHL, 2020 ABQB 631).
81. SBC 2004, c 39.
82. Supra note 2 at 13.
83. See Aarian Marshall, “With $200 Million, Uber and
Lyft Write Their Own Labor Law”, Wired (4 November
2020), online: <www.wired.com/story/200-
million-uber-lyft-write-own-labor-law/>. In a similar
vein, in 2016, major junior hockey players were
exempted from the BC ESA following lobbying by the
major junior hockey establishment.