Date: 20020306
Docket: A-72-00
Neutral citation: 2002 FCA 94
CORAM: STRAYER J.A.
SHARLOW J.A.
BETWEEN:
HEINZ TERRY KREUTZ
DBA
KEEPSAFE SYSTEMS
Applicant
and
ATTORNEY GENERAL OF CANADA
as represented by CANADA CUSTOMS AND
REVENUE AGENCY (Formerly known
as Revenue Canada Taxation)
Respondent
Heard at Vancouver, British Columbia, on March 6, 2002.
Judgment delivered from the Bench at Vancouver, British Columbia, on March 6, 2002.
Date: 20020306
Docket: A-72-00
Neutral citation: 2002 FCA 94
Vancouver, British Columbia, Wednesday, the 6th day of March, 2002
CORAM: STRAYER J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
HEINZ TERRY KREUTZ
DBA
KEEPSAFE SYSTEMS
Applicant
and
ATTORNEY GENERAL OF CANADA
as represented by CANADA CUSTOMS AND
REVENUE AGENCY (Formerly known
as Revenue Canada Taxation)
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at
Vancouver, British Columbia on March 6, 2002)
STRAYER J.A.
[1] We are satisfied that the Tax Court Judge had regard to all the relevant facts in reaching his conclusion that Mr. Dixon worked for the Applicant as an employee and not as an independent contractor. We find no error in the manner in which he weighed the various factors.
[2] The Applicant objects to the Tax Court Judge's conclusion that even though there was an agreement between the Applicant and Dixon that the latter would be an independent contractor, he was nevertheless engaged under a contract of service and not a contract for services. In this regard the Trial Judge relied on the decision of this Court in Wiebe Door Services Ltd. v. M.N.R. ([1996] 3 F.C. 553) where it was said that a specific agreement between the parties to the relationship is not necessarily determinative of its nature where other factors indicate a different kind of relationship. It was certainly open to the Tax Court Judge here to reach a conclusion on the facts that Dixon worked as an employee notwithstanding the oral agreement to the contrary.
[3] The Applicant goes further, however, in arguing that the Wiebe principle is unconstitutional because it prevents him from entering into an agreement to hire an independent contractor and this is infringement on "liberty" as protected by s. 7 of the Canadian Charter of Rights and Freedoms. This is clearly not the effect by the Wiebe principle, which does not prevent the making of any type of contract but involves a question of what evidence is sufficient to prove for purposes of the Employment Insurance Act what kind of contract has in fact been made. It merely means that evidence of a specific agreement is not necessarily determinative where there is other evidence, as there was here, of a kind of legal relationship different from what the parties purported to create. In the final analysis the question of whether work is "insurable employment" for the purpose of the Employment Insurance Act must be determined by applying a legal test to all the facts and not merely by taking the parties' word for it. There is therefore no constitutional issue raised, even if contractual freedom were thought to be protected by section 7, a matter we need not decide.
[4] The other issue raised by the Applicant with respect to the fairness of the Tax Court procedure is also without substance. It appears that his complaint is that the Tax Court Judge would not let him present his case by reading from a prepared document. We have examined that document and the first several pages at least appear to consist of a text of testimony to be given. It was not inappropriate for the Tax Court Judge to stop the Appellant from giving his viva voce evidence in this fashion.
[5] The application for judicial review should therefore be dismissed with costs.
(Sgd.) "B.L. Strayer"
J.A.
Vancouver, British Columbia
March 6, 2002
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-72-00
STYLE OF CAUSE: Heinz Terry Kreutz v. AGC et al.
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: March 6, 2002
REASONS FOR JUDGMENT : STRAYER J.A.
CONCURRED IN BY: SHARLOW, MALONE JJ.A.
DATED: March 6, 2002
APPEARANCES:
Heinz Terry Kreutz FOR THE APPLICANT
Lisa Macdonnel FOR THE RESPONDENT
SOLICITORS OF RECORD:
Heinz Terry Kreutz FOR THE APPLICANT
Vancouver
Deputy Attorney General of Canada FOR THE RESPONDENT