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Docket: 2002-3080(EI) |
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BETWEEN: |
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INSURERS' ADVISORY ORGANIZATION INC., |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
____________________________________________________________________
Appeal heard on common evidence with the appeal of Inusrers' Advisory Organization Inc. (2002-3081(CPP)) at Calgary, Alberta, on March 28, 2003
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Before: The Honourable Michael H. Porter, Deputy Judge |
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Appearances: |
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Counsel for the Appellant: |
V. Kate Morisset |
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Counsel for the Respondent: |
Galina M. Bining |
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 16th day of July 2003.
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"Michael H. Porter" |
Porter, D.J.
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Citation:2003TCC443 |
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Date:20030716 |
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Docket: 2002-3080(EI) 2002-3081(CPP) |
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BETWEEN: |
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INSURERS' ADVISORY ORGANIZATION INC., |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
REASONS FOR JUDGMENT
Porter, D.J.
[1] These appeals were heard on common evidence by consent of the parties, on the 28th of March 2003 at Calgary, Alberta.
[2] The Appellant has appealed from the decisions of the Minister of National Revenue (hereinafter called the "Minister") dated March 18, 2002, that the employment with it of Kirk A. Aucoin (the "Worker") for the period February 14, 2000 to February 14, 2001, was both insurable and pensionable under the Employment Insurance Act (the "EI Act") and the Canada Pension Plan (the "CPP") respectively, for the following reason:
...Kirk A. Aucoin was employed under a contract of service (i.e. there was an employee/employer relationship between he and Insurers' Advisory Organization Inc.).
The decisions were said to be issued pursuant to subsection 93(3) of the EI Act and subsection 27.2(3) of the CPP and were based respectively on paragraphs 5(1)(a) and 6(1)(a) thereof.
[3] The established facts reveal that the Appellant operates a business which provides loss control services, including physical risk surveys, engineering, actuarial consulting, insurance rating, online computer services, statistical, educational and related services. The Worker was engaged to perform loss control surveys and property risk evaluations pursuant to a form of agreement dated February 14, 2000, entitled "Independent Contractors Agreement - Individual". Despite the title to that agreement, the Minister has decided that in fact the Worker was an employee working under a contract of service. The Appellant maintains that he was an independent contractor working under a contract for services. That is the issue before the Court.
The Law
Contracts Of/For Service
[4] The manner in which the Court should go about deciding whether any particular working arrangement is a contract of service and thus an employer/employee relationship or a contract for services and thus an independent contractor relationship, has long been guided by the words of MacGuigan, J. of the Federal Court of Appeal in the case of Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025. The reasoning in that case was amplified and explained further in cases emanating from that Court, namely in the cases of Moose Jaw Kinsmen Flying Fins Inc. v. M.N.R., 88 DTC 6099, Charbonneau v. Canada (M.N.R.), [1996] F.C.J. No. 1337, and Vulcain Alarme Inc. v. The Minister of National Revenue (1999) 249 N.R. 1, all of which provided useful guidance to a trial Court in deciding these matters.
[5] The Supreme Court of Canada has now revisited this issue in the case of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] S.C.J. No. 61, 2001 SCC 59, 274 N.R. 366. The issue in that case arose in the context of a vicarious liability situation. However, the Court recognized that the same criteria applied in many other situations, including employment legislation. Mr. Justice Major, speaking for the Court, approved the approach taken by MacGuigan, J. in the Wiebe Door case (above), where he had analyzed Canadian, English and American authorities, and, in particular, referred to the four tests, for making such a determination enunciated by Lord Wright in City of Montreal v. Montreal Locomotive Works Ltd., [1974] 1 D.L.R. 161 at 169-70. MacGuigan, J. concluded at page 5028 that:
Taken thus in context, Lord Wright's fourfold test [control, ownership of tools, chance of profit, risk of loss] is a general, indeed an overarching test, which involves "examining the whole of the various elements which constitute the relationship between the parties". In his own use of the test to determine the character of the relationship in the Montreal Locomotive Works case itself, Lord Wright combines and integrates the four tests in order to seek out the meaning of the whole transaction.
At page 5029 he said:
... I interpret Lord Wright's test not as the fourfold one it is often described as being but rather as a four-in-one test, with emphasis always retained on what Lord Wright, supra, calls "the combined force of the whole scheme of operations," even while the usefulness of the four subordinate criteria is acknowledged. (emphasis mine)
At page 5030 he had this to say:
What must always remain of the essence is the search for the total relationship of the parties...
He also observed:
There is no escape for the trial judge, when confronted with such a problem, from carefully weighing all the factors...
[6] Mr. Justice MacGuigan also said this:
Perhaps the best synthesis found in the authorities is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732, 738-9:
The observations of Lord Wright, of Denning L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.
[7] In the case of Kinsmen Flying Fins Inc. case, above, the Federal Court of Appeal said this:
... like MacGuigan J. we view the tests as being useful subordinates in weighing all of the facts relating to the operations of the Applicant. That is now the preferable and proper approach for the very good reason that in a given case, and this may well be one of them, one or more of the tests can have little or no applicability. To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate.
[8] The nature of the tests referred to by the Federal Court of Appeal can be summarized as:
a) The degree or absence of control exercised by the alleged employer;
b) Ownership of tools;
c) Chance of profit;
d) Risk of loss.
In addition, the Court must consider the question of the integration, if any, of the alleged employee's work into the alleged employer's business.
[9] In the Sagaz decision (above) Major, J. said this:
...control is not the only factor to consider in determining if a worker is an employee or an independent contractor...
[10] He dealt with the inadequacy of the 'control test' by again approving the words of MacGuigan, J. in the Wiebe Door case (above) as follows:
...A principal inadequacy [with the control test] is its apparent dependence on the exact terms in which the task in question is contracted for: where the contract contains detailed specifications and conditions, which would be the normal expectation in a contract with an independent contractor, the control may even be greater than where it is to be exercised by direction on the job, as would be the normal expectation in a contract with a servant, but a literal application of the test might find the actual control to be less. In addition, the test has broken down completely in relation to highly skilled and professional workers, who possess skills far beyond the ability of their employers to direct.
[11] He went on to say this:
In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, ...([1952] 1 The Times L.R. 101) that it may be impossible to give a precise definition of the distinction (p.111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations ..." (p. 416). Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, ... (Vicarious Liability in the Law of Torts. London: Butterworths, 1967), at p. 38, that what must always occur is a search for the total relationship of the parties:
[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose.... The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.
Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.
[12] I also find guidance in the words of Décary, J.A. in the Charbonneau case (above) when speaking for the Federal Court of Appeal he said this:
The tests laid down by this Court ... are not the ingredients of a magic formula. They are guidelines which it will generally be useful to consider, but not to the point of jeopardizing the ultimate objective of the exercise, which is to determine the overall relationship between the parties. The issue is always, once it has been determined that there is a genuine contract, whether there is a relationship of subordination between the parties such that there is a contract of employment ... or, whether there is ... such a degree of autonomy that there is a contract of enterprise or for services. ... In other words, we must not pay so much attention to the trees that we lose sight of the forest. ... The parts must give way to the whole. (emphasis mine)
[13] I also refer to the words of Létourneau, J.A. in the Vulcain Alarme case (above), where he said this:
... These tests derived from case law are important, but it should be remembered that they cannot be allowed to compromise the ultimate purpose of the exercise, to establish in general the relationship between the parties. This exercise involves determining whether a relationship of subordination exists between the parties such that the Court must conclude that there was a contract of employment within the meaning of art. 2085 of the Civil Code of Quebec, or whether instead there was between them the degree of independence which characterises a contract of enterprise or for services....
[14] I am further mindful that as a result of the recent decisions of the Federal Court of Appeal in Wolf v. Canada, 2002 DTC 6853 [2002] F.C.J. No. 375, and Precision Gutters Ltd. v. Canada (Minister of National Revenue-M.N.R.), [2002] F.C.J. No. 771, a considerable degree of latitude seems now to have been allowed to creep into the jurisprudence enabling consultants to be engaged in a manner in which they are not deemed to be employees as they might formerly been. I am particularly mindful of the words of Mr. Justice Décary in the Wolf decision (above) where he said:
In our day and age, when a worker decides to keep his freedom to come in and out of a contract almost at will, when the hiring person wants to have no liability towards a worker other than the price of work and when the terms of the contract and its performance reflect those intentions, the contract should generally be characterised as a contract for services. If specific factors have to be identified, I would name lack of job security, disregard for employee-type benefits, freedom of choice and mobility concerns. (my emphasis)
[15] Thus, it seems to this Court that the pendulum has started to swing, so as to enable parties to govern their affairs more easily in relation to consulting work and so that they may more readily be able to categorize themselves, without interference by the Courts or the Minister, as independent contractors rather than employees working under contracts of service.
[16] In conclusion, there is no set formula. All these factors bear consideration and as Major, J. said in the Sagaz case (above), the weight of each will depend upon the particular facts and circumstances of the case. Many of the tests can be quite neutral and can apply equally to both types of situation. In such case, serious consideration has to be given to the intent of the parties. Thus is the task of the trial judge.
The Facts
[17] In the Replies to the Notices of Appeal, signed on his behalf, the Minister was said to have relied upon the following assumptions of fact (the Appellant's agreement or disagreement I have placed in parenthesis):
(a) The Appellant is a business which provides loss control services, including physical risk surveys, engineering, actuarial consulting, insurance rating, on-line computer services, statistical, educational, and related services; (Agreed)
(b) the Worker was hired by the Appellant to perform loss control surveys and property risk evaluations for the Appellant; (Agreed)
(c) the Worker reported to the Appellant's Calgary, Alberta office; (Agreed, subject to the word "attending" being substituted for "reported".)
(d) there was a written agreement between the Worker and the Appellant (the "agreement"); (Agreed)
(e) the agreement detailed the services to be provided by the Worker to the Appellant; (Agreed)
(f) based on the agreement, the Worker was hired to perform the services for the Appellant during a one year period; (Disagreed. The Appellant says he was not hired - he did not work every day but on a case by case basis.)
(g) the Worker was paid by the Appellant, based on a fee schedule which was determined by the Appellant; (Agreed)
(h) the Worker was paid on a monthly basis, by the Appellant; (Disagreed. The Appellant said he was paid upon submission of his invoices, within 30 days thereof.)
(i) the Worker was required to report to the Appellant on a regular basis; (Disagreed)
(j) the Worker was required to follow the Appellant's established procedures, rules and directions; (Disagreed. Whilst there were some established procedures, the Worker was not supervised on a daily basis.)
(k) the Worker was required to attend meetings scheduled by the Appellant; (Disagreed)
(l) based on the agreement, the Worker was restricted from performing similar services, for any business that was in competition in any manner whatsoever with the business of the Appellant or group of companies; (Agreed)
(m) the Appellant provided the Worker with a computer; (Agreed. It was provided by way of a loan.)
(n) the Appellant paid the costs of a liability insurance; (Agreed)
(o) the Worker was required to perform the services personally for the Appellant. (Disagreed.)
[18] Evidence was given on behalf of the Appellant by Rene Cormier (Cormier), its Branch Manager in Calgary, Liefur Bjornson, a loss prevention inspector under contract to and working for the Appellant, and Kirk Aucoin himself.
[19] The salient terms of the contract read as follows:
...AND WHEREAS IAO and Contractor wish to enter into a relationship whereby, as an independent contractor, Contractor will carry out physical risk surveys and evaluations of properties and other risks for and on behalf of IAO on the terms and conditions herein set forth:
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Services to be Provided
1. As an independent contractor, Contractor hereby agrees to carry out for and on behalf of IAO, physical risk surveys and evaluations of properties and other risks on a timely basis, and to provide IAO with a written report of each survey or evaluation in a format and of a quality satisfactory to IAO, upon the terms and in accordance with the provisions of this Agreement and any ancillary documents relating thereto.
...
Fees and Expenses
3. In consideration for the services rendered by Contractor to IAO under this Agreement, IAO shall pay Contractor according to the schedule annexed to this Agreement as Schedule "A" (the "Fee Schedule") and ... according to the terms of paragraphs 4 and 5 hereof. The Fee Schedule may be amended from time to time on the written agreement of IAO and Contractor.
4. Contractor shall be responsible for all expenses he incurs in carrying out his obligations under this Agreement, including expenses relating to equipment, supplies and travel, except as expressly provided in (the "Fee Schedule").
5. Contractor shall submit to IAO, at the end of each calendar month, an invoice in writing for his claims to payment for services fully rendered under the Fee Schedule. IAO shall make payment of the amounts specified in such invoice subject to the terms of this Agreement, within thirty (30) days after receipt of the invoice by IAO.
Relationship of Contractor to IAO - Independent Contractor
6. It is expressly agreed that neither Contractor nor any of Contractor's Representatives (as defined in paragraph 8) is an employee of IAO for any purpose whatsoever, but is an independent contractor operating a business separate from that of IAO. IAO is interested only in the results obtained by Contractor, who shall have control of the manner and means of performing under this Agreement. IAO shall not have the right to require Contractor to collect accounts, investigate customer complaints, devote any fixed or minimum number of hours to his obligations under this Agreement, bind IAO, or do anything else which would jeopardize the relationship of independent contractor between IAO and Contractor.
7. Contractor does not have, nor shall he hold himself out as having any right, power or authority to create any contract or obligation, either express or implied on behalf, in the name of, or binding upon IAO, or to pledge IAO's credit, or to extend credit in IAO's name.
8. To perform the services provided for in this Agreement, and subject to IAO's prior written approval, contractor shall have the right to appoint or otherwise designate suitable and desirable employees, consultants, agents and representatives (hereinafter collectively referred to as "Contractor's Representatives"), provided that all such persons shall possess the expertise and shall have received any training necessary to carry out the duties assigned by Contractor. "IAO's prior written approval" shall be restricted to IAO satisfying itself that the Contractor's Representatives possess the necessary expertise and are properly trained to carry out the aforesaid duties. Contractor shall be solely responsible for Contractor's Representatives and their acts, and Contractor's Representatives shall be at Contractor's own risk, expense and supervision. Contractor's Representatives shall not have any claim against IAO for salaries, commissions, items of cost, or other forms of compensation or reimbursement; and Contractor represents, warrants and covenants that Contractor's Representatives shall be subordinate to Contractor and subject to each and all of the terms, provisions and conditions applying to Contractor hereunder.
[20] Quite clearly, the agreement between the parties purports to set itself up as an independent contractor arrangement.
[21] Cormier said that he was responsible for some 36 contractors used by the Appellant throughout the three Western Provinces. His organization is approached by insurance companies, municipalities, the Federal and Provincial governments as well as insurance adjusters and private corporations, to carry out independent risk analysis of all kinds of equipment, property and undertakings. To do their fieldwork, they engage these subcontractors of which the Worker was one. Each subcontractor, he said was offered assignments on a fairly regular basis and they could accept or reject an assignment as they saw fit. If they took an assignment, they had to complete it within a specified time, as the Appellant in turn had commitments to its clients. Today, he said, assignments were offered electronically. In the day of the Worker the contracts came in, and were put into mailboxes for the subcontractors at the office, where they picked and chose them as they saw fit.
[22] Cormier said that they carried out quality control reviews of reports prepared by subcontractors, that is they checked them over to make sure they were properly prepared before passing them onto the clients.
[23] Cormier said the Worker could then set for himself the amount of time he worked, when he took mealtimes, rest periods, vacations, etc. If he was ill, he reported to nobody.
[24] Compensation was regulated by the fee schedule attached to the initial contract. The Worker invoiced the Appellant once per month and was paid within a month of the date of the invoice.
[25] Long distance phone calls made by the Worker were reimbursed to him, and he was provided with business cards indicating he represented the Appellant organization when he went to client premises. The Appellant also provided liability insurance and paid out of pocket expenses for the Worker to attend training sessions or meetings put on by the company.
[26] The Worker, he said, was required to pay his own car expenses, gas, telephone, computer and stationery items. Inspection report forms were provided by the Appellant for use by the Worker. In addition, the Appellant loaned to the Worker a lap top computer which was not for use except for company business.
[27] Cormier said the subcontractors could contract out their services to others, but the Appellant wished to ensure that these others were properly qualified to do the work. It seems to me that this never did occur with the Worker and probably would not occur as anybody qualified would probably have worked for the Appellant directly. To that extent, clause 8 of the contract seemed somewhat hollow. Nonetheless, the legal right to do so existed. He said some contractors did hire other people to do measurements and the like.
[28] He said many of the subcontractors also did work in other situations, which were not in competition with the Appellant, and prohibited under the contract. He gave examples of one contractor working for the Workers' Compensation Board, one doing work directly for some underwriters certifying five fire trucks, and another one who sold travel trailers.
[29] With respect to company meetings, Cormier said the Worker was not required to attend meetings. He was offered training sessions and was free to attend or not as he saw fit. Some of those sessions would provide the Worker with updated information needed by the clients, so there was a strong need to attend.
[30] Cormier maintained that the Appellant did not provide equipment to the contractors. He explained that the reason he loaned a lap top computer to the Worker, was because the latter's own computer had broken down and he had asked if he could borrow one, short term, for three months.
[31] The contractors needed to have digital cameras when the Appellant changed its procedures for reporting to its clients. It made the cameras available to the contractors at a group price of $600.00 and the Worker purchased his from the Appellant.
[32] When the Appellant changed its fee schedule with its contractors, the Worker elected not to continue on with them and terminated his contract.
[33] It is apparent that the contractors filed their reports over the internet with the Appellant using software equipment issued to them by the company and a special access password.
[34] When initially engaged, a representative of the Appellant would go out with a new worker to make sure they undertook what was required of them.
[35] Liefur Bjornson was a most impressive witness and a man who had been in the business for many years. He was a man of great experience in this field. He did quality control review of the work of other inspectors. He had been working as a subcontractor since 1991. His work was assigned to him by the office and if he felt he could not or did not want to do it, he turned it back in.
[36] He would contact the broker in question to get the name of the client and arrange his own appointments through that broker. He described how he went about his inspections and reports and felt he was his own supervisor. He felt absolutely responsible for his own work. His data entries were originally done either by using employees at the Appellant's office or outside workers. He said that by the year 2000 everybody had to have their own computers and file their work that way. He would submit his reports along with his invoices. The work had to be done in a timely fashion and he said he made money by actually working as much as he wanted. He incurred expenses in paying for his own auto, computer and office supplies.
[37] He confirmed that there was no requirement to attend company meetings and that the inspectors were simply invited to an annual meeting and to training sessions.
[38] He was confident that he was an independent contractor and that the Appellant was his client, whom he represented in doing inspections.
[39] I placed a great deal of faith in the evidence of this witness. He seemed to me to be extremely credible.
[40] Lastly, the Worker himself gave evidence. He had worked with the Appellant several years before as an employee. He dropped off a resume in January 2000, received a call and subsequently was engaged. He was presented with the form of contract. He asked if he needed a lawyer and was told he could do whatever he thought right. He said the contract looked alright to him and he was told others had signed it, so he signed it. He knew before applying that the Appellant had "gone to independent contractors", but said he did not know what that meant. He said he found out after signing the contract when Liefur Bjornson apparently explained it all to him. He later, in January 2001, signed another contract using a business name "Canadian Loss Control Services". That was a name he said the Appellant made up for him. He also obtained a G.S.T. registration number.
[41] He described how the work was assigned to him by being placed in his mailbox at the company office, much as Cormier had described. He confirmed the latter's evidence with respect to the equipment he needed, the obligation to buy a digital camera, and the borrowing of the laptop computer.
[42] He felt that he was supervised over the first couple of months in that Bjornson or another inspector, Steve, would review his work. They would point out to him things that he might have left out.
[43] He would talk to Darlene Taylor in the office on a daily basis who told him he was supposed to check in regularly with her. If he felt not qualified to do an assignment, he would turn it back to her.
[44] Sometimes when he went out of town to work, he would rent a vehicle which he paid for himself out of his fee.
[45] He explained that for the first couple of months, he remained employed at an auto parts business.
[46] These are the salient facts as I find them. There is really not any conflict between the witnesses. Their evidence is pretty much the same. Although Cormier and Bjornson were much more sure about what they were doing and how they were doing it, on the whole, I did not feel that the evidence of the Worker was in conflict with their evidence.
Application of Law to the Facts
[47] Title: It must still be clearly understood that even where the parties choose to put a title on their relationship, if the true nature and substance of the arrangement does not accord with that title, it is the substance to which the Court must have regard. That legal principle has not changed (see Shell Canada Ltd. v. Canada (1999) S.C.J. No. 30). Having said that, it is also fair to say that where the parties genuinely choose a particular method of setting up their working arrangement, it is not for the Minister or this Court to disregard that choice. Due deference must be given to the method chosen by the parties and if on the evidence as a whole there is no substantial reason to derogate from the title chosen by the parties, then it should be left untouched. The Wolf and Precision Gutter cases very much substantiate that proposition.
[48] Whilst I have some reservations as to how well the Worker understood all that was involved at the time he signed the contract, I am quite confident that he did so understand by the time he started working when it was explained fully to him by Bjornson.
[49] Control: As this aspect of the test has been traditionally applied, it has been consistently pointed out that it is not the actual control so much as the right to control that is important for the Court to consider. The more professional and competent a person is or the more experience they have in their field, the less likely there is to be any actual control, which creates difficulty in applying this test. Indeed as Major, J. pointed out in the Sagaz case (above), there may be less control exercised in the case of a competent professional employee than in the case of an independent contractor. Nonetheless, it is another factor to be weighed in the balance.
[50] All in all, I saw very little, if any, signs of control over the Worker. He was free to take work or not as he saw fit. He could come and go as he pleased, all the hallmarks of an independent contractor.
[51] It is apparent that the clients of the Appellant required their reports to be done in a certain way, to contain certain specified information and to be filed electronically. The Appellant passed these requirements onto the worker. This does not amount to control. It is the very work which has to be done for the clients.
[52] Tools and Equipment: Basically, the Worker was required to have his own tools, e.g. car, computer, camera. In fact, he borrowed a computer but it was clear that this was a temporary loan. This requirement to have for use in his work all these tools of his own, points clearly to an arrangement with an independent contractor.
[53] Profit and Loss: How much he made depended very much upon how much work he chose to take on, and how diligently he performed it. As per the Precision Gutters case (above), this is clearly an indication of a person in business for himself. Similarly, he needed equipment. If he had no income, he still had these expenses. If he lost or broke his equipment, he stood to make a loss. All these factors have an entrepreneurial aspect to them and are again an indication of an independent contractor working under a contract for services.
[54] Integration: This is the aspect of the test which has been most often criticized. The question to be asked is "whose business is it"? That must be asked from the point of view of the worker, not the employer as from the latter's point of view it will always look like its business. In other words, were there two businesses here or one.
[55] When I look at this from the Worker's point of view, it is clear to me that he was operating his own independent business. Ultimately, he went so far as to sign a new contract in his new business name. True, he was encouraged to do this by the Appellant, but nonetheless, he did so. There was a certain entrepreneurial element to his work. He could come and go as he chose, he could make what money he chose, and he faced expenses of his own to do the work, which he paid out of his fees. He invoiced for his work. In my view, there were clearly two independent businesses operating here.
Conclusion
[56] When I look at the forest as a whole and not just at the individual trees, I am well satisfied on the evidence that the Worker was an independent employee working under a contract for services. I am mindful of the words again of Justice Décary in the Wolf case (above):
In our day and age, when a worker decides to keep his freedom to come in and out of a contract almost at will, when the hiring person wants to have no liability towards a worker other than the price of work and when the terms of the contract and its performance reflect those intentions, the contract should generally be characterised as a contract for services. If specific factors have to be identified, I would name lack of job security, disregard for employee-type benefits, freedom of choice and mobility concerns. (my emphasis)
[57] This case very much accords with those words. In the event, the appeals are allowed and the decisions of the Minister vacated.
Signed at Calgary, Alberta, this 16th day of July 2003.
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"Michael H. Porter" |
Porter, D.J.
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CITATION: |
2003TCC443 |
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COURT FILE NO.: |
2002-3080(EI) and 2002-3081(CPP) |
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STYLE OF CAUSE: |
Insurers' Advisory Organization Inc. and M.N.R. |
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PLACE OF HEARING: |
Calgary, Alberta |
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DATE OF HEARING: |
March 28, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Michael H. Porter, Deputy Judge |
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DATE OF JUDGMENT: |
July 16, 2003 |
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APPEARANCES: |
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Counsel for the Appellant: |
V. Kate Morisset |
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Counsel for the Respondent: |
Galina M. Bining |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
V. Kate Morisset |
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Firm: |
Calgary, Alberta |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |