Heather Devine of Isaacs and Co. returned to the annual meeting of the Private Motor Truck Council of Canada for an update on legal issues affecting carriers.
NIAGARA FALLS, Ont. – Heather Devine, a lawyer with Isaacs and Co., is advising truck fleets to take a closer look at everything from employment contracts to telematics data as they look to prepare themselves for the year ahead. Here are the Top 10 legal-related issues that she presented during the annual meeting of the Private Motor Truck Council of Canada.
Take a look at how you’re using available data
Fleets have access to a growing volume of data generated by everything from electronic logging devices (ELDs) to vehicle telematics systems. It makes sense to look at the data to see how it can be used to avoid legal issues, reduce liability, and communicate with insurers, she said. Load boards, for example, are already tapping into data to predict routes, manage risks, and ensure a stable supply chain. “Work smarter,” Devine said. “Take a look at your data.”
Begin to prepare for autonomous vehicles
Autonomous equipment is not rolling up and down highways of today. But it is being used in northern mines, and Michelin has announced it will test an autonomous T-Pod truck developed by Einride, Devine said. Anyone involved in the warehousing sector is also dealing with sales pitches from robotics companies. Now is the time to begin exploring related legal questions, she said.
Nail down your talent
Trucks are driven by drivers, and driver relationships are going to drive success, Devine said.
She also wondered if there are opportunities to attract a younger generation of workers. This May, the U.S. Federal Motor Carrier Safety Administration (FMCSA) called for comments on a pilot program that would allow youth between the ages of 18 and 20 to drive across state borders. In an era of driver-assisting technology and telematics, “maybe targeting the younger audience is a way to go,” she said, noting that 14 year olds can become pilots. “Nobody has an issue with that.”
Don’t ask drivers to contract out of Employment Standards Act (ESA) rights
Courts are taking a hard line in protecting Employment Standard Act rights, Devine said. “They are almost becoming, in my view, sacrosanct.”
The UberEats delivery service recently lost a Court of Appeal ruling on the issue, she offered as an example. The ruling found that an arbitration clause included in a 15-page contract, accepted by tapping a button through the UberEats app, was “unconscionable” because the arbitration would have cost the driver about US $14,500. The driver only earned about $20,800 through the service.
Review amendments to Ontario’s Employment Standards Act
Recent changes to the provincial ESA rules can require an employee to work more than 48 hours a week if they agree to it in writing. “You can also average it over five weeks,” she said. But the agreement must include a start date and expiry date, and can end within two years.
Consider how workers are classified
There’s a difference between independent contractors and employees. Any mistakes in the classifications can be costly in the form of Canada Revenue Agency charges, benefits, and other penalties.
“This is costly on so many different levels,” Devine said.
Fleets need to ask whether they have control over the drivers, and if the individuals own their tools, have a financial risk of profit and loss, and the ability to subcontract work, she added. All the related benchmarks need to be met. “The chances in our industry of a true independent contractor are pretty slim.”
Beware of Driver Inc.
Fleets that establish employees as independent contractors are at risk if those drivers are not meeting their tax obligations, Devine said. “You can now be seen as assisting a tax evasion.”
The loophole may also be coming to an end. The Canada Revenue Agency and Social Development Canada have both announced they will eliminate any grey areas around the tax and labor status of incorporated drivers running company vehicles, she said.
“The CRA may be coming after the company as well to audit and to impose penalties.”
Know and enforce your rights to procedural fairness for dismissal complaints
Devine shared details about a delivery driver who, after suffering a strained back, said he didn’t want to return to longhaul work. The company denied the change, and then found the driver was engaged in physical labor while off the job.
In the case (Transport Car-Fre vs. Lecours 2018), the driver had asked for about $300,000 for lost wages, moral damages, and professional fees. The fleet lost at first, but won the right to an appeal under a new adjudicator.
The winning strategy involved knowing the complaint was filed beyond a 90-day limit, and calling in a court reporter to record evidence. “This is smart. This is worth the money,” she said. “They create an official transcript that can be used going forward.”
Know your requirements under carbon taxes
The federal government is now imposing new taxes on fuel purchased in Ontario, Manitoba, New Brunswick, and Saskatchewan, she said. It means road carriers have to register with the Canada Revenue Agency and register related returns. “It’s an important legal development in terms of driving up costs,” she said.
Consider whether drivers are (unknowingly) using cannabis
Devine, sporting a sling during her presentation, referred to an injury that she endured – and how someone recommended a pain relieving rub known as Buddha Bar. There was nothing on the label that suggested an issue, so she used it. And when she went to order more online, she found that it was infused with THC.
Arm, back, and neck injuries are prevalent among longhaul drivers, Devine said. And drivers can be subjected to drug tests. What are they taking to manage their pain?