Date: 20000228
Dockets: 1999-35-EI; 1999-36-CPP
BETWEEN:
SLIAMMON DEVELOPMENT CORPORATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
ALFRED C. BUTTERFIELD,
Intervener.
Reasons for Judgment
Rowe, D.J.T.C.C.
[1] The appellant Sliammon Development Corporation (SDC) appealed from a decision of the Minister of National Revenue (the "Minister") dated September 4, 1998 concerning the appellant's request for a determination regarding the insurability - for employment insurance purposes and pensionability pursuant to the Canada Pension Plan - of the intervener, Alfred C. Butterfield, during the period from September 5, 1997 to February 4, 1998. The Minister decided Alfred C. Butterfield was employed in insurable and pensionable employment pursuant to the relevant provisions of the Employment Insurance Act and Canada Pension Plan on the basis he was employed under a contract of service. The appellant also appealed (1999-36(CPP)) the decision issued pursuant to the Canada Pension Plan and Alfred C. Butterfield also intervened in that appeal. All parties agreed the result of the within appeal under the Employment Insurance Act would apply to appeal 1999-36(CPP).
[2] Kevin Blaney testified he resides in Powell River, British Columbia, and is President of Sliammon Development Corporation. SDC functions as the economic development arm of the Sliammon Indian Band and attempts to generate revenue - and profits - on behalf of shareholders who are members of Sliammon First Nations. The appellant has a 7-person Board of Directors (Board), composed of 6 members of the Sliammon Nation and an appointed member who is usually an individual involved in the business community of Powell River. SDC was involved in various business activities including leasing land, purchasing the hotel at Lund, British Columbia and developing unoccupied lease property. SDC also had some forestry interests and was dealing with large lumber corporations with a view to harvesting some timber on Indian lands. In addition, the appellant was engaged in developing an aboriginal fishing strategy which included the acquisition of an appropriate vessel for use in fishing operations. The Lund Hotel was purchased in November, 1999 and needed substantial repairs. As a result, 6 members of the Sliammon Nation were employed in the renovation project. Blaney explained the intent of SDC was to create employment for the majority of 800 Band members of whom 500 reside on the six small areas reserved unto the Sliammon Band for their use. Blaney has served as President of SDC for the past four years. As President - chosen by the Board - he is responsible for supervising the day-to-day administration that is carried out by two employees and a trainee. Blaney stated SDC - on September 5, 1997 - entered into a contract - Exhibit A-1 - with Alfred C. Butterfield on the basis that he was engaged to accomplish certain objectives as set forth in the document. The SDC Board had been of the opinion outside help was required to investigate various matters and a task list and timeline to accomplish certain goals was established. Although various subject matters were listed, Blaney stated the issue of residential leases was the "hot file". In his opinion, Butterfield was not required to attend at - or work out of - the SDC office and was able to perform services for other clients during the same period covered by the SDC contract. Blaney stated there was no daily supervision of Butterfield nor any need to record hours worked. Blaney also served as Administrator of the Band and those duties occupied most of his time. The SDC Board wanted certain objectives to be met within a three-month timeline. Butterfield was expected to report to the Board at various meetings but there was no prohibition against him using the services of other people to assist him in carrying out portions of the contract with SDC. The initial term was for three months, commencing September 5, 1997 at a rate of $5,000 per month payable at the end of each month upon receipt of an invoice. The contract was extended - as contemplated at page 2 - but the extension to February 2, 1998 did not occur until issuance of the Memorandum of SDC to Butterfield on January 23, 1998. Following the expiry date of December 5, 1997 set out in Exhibit A-1, Butterfield had continued to provide services to SDC. Blaney stated a third party - Business Design Group (BDG) - was retained to evaluate the structure of SDC and to review certain material provided by Butterfield. Following an evaluation provided by BDG, the Board decided the objectives - as set forth in Exhibit A-1 - had not been met by Butterfield and the consensus was that SDC would not continue to retain his services and the contract was permitted to expire on February 4, 1998.
[3] In cross-examination by Counsel for the respondent, Blaney stated SDC had been incorporated on March 2, 1995. In 1997, SDC had placed an advertisement in the Powell River News in which it announced it was searching for a person to occupy the position of Business Manager. A number of people applied, including Butterfield, and the Board undertook the interviewing process. Blaney did not participate in the interview of Butterfield but was made aware the Board wanted Butterfield to provide services to SDC as an independent contractor. There were two members of the Board who were assigned responsibility for drafting the contract with Butterfield. The draft - Exhibit R-1 - contained some matters set out in Blaney's handwriting and he crossed out a line referring to Butterfield's ability to serve other clients apart from SDC because he believed the work to be done for SDC would require the energy and commitment associated with a full-time position. However, it did not matter to SDC where the actual work was being carried out and Butterfield was not expected to complete all of the tasks outlined in the contract. While some of the scheduled items - such as management plans and policies or operational budgeting - could be carried out fairly quickly, others would take much longer to accomplish. A short, initial period of three months was chosen in order to allow an evaluation of Butterfield's work - in his capacity of an independent contractor - and, if it were satisfactory, the contract would be extended with terms and conditions to be negotiated. Any expenses incurred by Butterfield were to be invoiced monthly as per a schedule which had been attached to the contract but Blaney had not seen the schedule and was not aware whether payments had been made pursuant to it. SDC decided it was fair and reasonable to retain an outside entity to perform an evaluation of Butterfield's work. The operations of SDC were first efforts of the Sliammon Nation in terms of economic development and there was a learning curve associated with the activities undertaken. Blaney confirmed Butterfield was required to sign an oath of confidentiality and to subscribe to a code of corporate behaviour. The memorandum dated January 23, 1998 - Exhibit A-2 - was intended to extend Butterfield's contract with SDC even though it had technically expired on December 5, 1997. Blaney carried out his duties in the Band Office and SDC and an employee used an office in the same building until the SDC office was relocated - in late October, 1997 - to the Sliammon Salish Centre. Blaney stated he did not expect to exercise any supervisory control over Butterfield and there was nothing done in order to restrict his ability to work at home. The meetings of the Board were held monthly, or as required, and Butterfield was also in direct contact with Board members from time to time. An SDC employee - Elaine Tom - was on-site in order to field enquiries and to refer people to the proper resource person. There was a computer in the SDC workspace for use by Butterfield and there was also space for Board members to use when they were in the office but there was no restriction on Butterfield using his own equipment or computers. Elaine Tom was available to assist Butterfield and to locate information in the files. Butterfield's compensation was restricted to $5,000 per month and there was no GST charged by him to SDC. The duties of Business Manager - as carried out by Butterfield - were governed by the terms of contract - Exhibit A-1. Blaney was referred to a document - Exhibit R-2 - entitled Sliammon Development Corporation Annual Report - dated January 15, 1998 - containing an organizational structure chart. He indicated the chart was prepared with a view to SDC - in the future - having a full-time Business Manager who would be a member of the Sliammon Band after having successfully completed a training program. SDC did not record Butterfield's hours of work and he had a key to the office and could come and go whenever he chose because the actual hours worked were not significant to SDC, per se. Some Board meetings were held during the day and others at night. Usually, part of the agenda was to receive a report from Butterfield on some aspect of the work he had been doing. Counsel for the respondent suggested to Blaney that - during a discussion about overtime worked by Elaine Tom - he had instructed Butterfield to keep track of his hours worked for purposes of calculating overtime. Blaney denied any such conversation relating to Butterfield's entitlement to any overtime pay.
[4] Alfred C. Butterfield - as intervener - cross-examined Blaney with regard to certain aspects of the contract and Blaney reiterated Butterfield had informed SDC he had other clients at the time. Blaney also denied having told Butterfield that he had to come in to the office every day because the only concern of SDC was that he carry out the duties pertaining to specific subjects as set forth in the contract.
[5] In re-examination, Blaney stated his handwritten notations appearing on Exhibit R-1 did not become part of the actual contract signed - Exhibit A-1 - because, in his understanding, Butterfield had other clients and did not want to work exclusively for SDC during the term of the contract.
[6] Alfred Butterfield - called as a witness by Counsel for the respondent - testified he resides in Lund, British Columbia and works as a consultant. He responded to an advertisement for a Business Manager which had been placed in the Powell River News. While he did not have the advertisement available to produce it in Court, he recalled that it referred to a career opportunity involving the day-to-day operations of SDC. Butterfield had an interview with David Formosa - a member of the Board - and it was mentioned to him that it would be advantageous if he were to function as an independent contractor. He thought the interview process was rigorous in that he was required to take a test on computer usage, then meet with the entire Board and - later - was introduced to Blaney. Following the interview, Butterfield contacted his accountant who faxed him certain guidelines issued by Revenue Canada in order to assist people in determining the nature of the intended working relationship. During the process of drafting a contract to be entered into between himself and SDC, he provided Blaney with a copy of those guidelines since it was obvious to Butterfield that the conditions of work were such that he would not be an independent contractor. He contacted a Chartered Accountant in Vancouver who did the accounting work for the Sliammon Band and discussed with her the matter of deductions from his cheque. In the interim, he was agreeable to receiving the gross sum of $5,000 per month because he needed the money. He was involved in moving the SDC office and - on behalf of SDC - arranged to buy the computer from a retail outlet in Powell River. He also purchased office dividers to partition the available workspace into a new office for him. Elaine Tom answered the telephone and did secretarial work. SDC provided a chair, filing cabinet and a stocked cabinet of office supplies. Butterfield stated he worked from 8:30 a.m. to 4:30 p.m. - Monday to Friday - and also worked some Saturdays. He attended numerous Board meetings and during the first three months most meetings took place after regular working hours. He stated Blaney required him to be in the SDC office every day. He agreed the final contract - Exhibit A-1 -did not refer to any specific hours of work nor did it prohibit him from working for other clients but he had already advised his other clients he could not continue to work for them because he was involved with the SDC contract. Butterfield did some work at home and on weekends. At the SDC office, people spoke first to Elaine Tom and then Butterfield dealt with many matters as they were referred to him. Butterfield characterized the supervision as constant in nature, especially for the first two months when Blaney's office was adjacent to his own workspace. Chief Brian Hackett also gave instructions to Butterfield and so did another Board member to the point where Butterfield asked the Board to set out a clear chain of command. At a meeting, the Board instructed him to deal directly with Blaney. During the process of an evaluation being undertaken by an outside group, Butterfield completed a two-page questionnaire and was interviewed for 30 minutes by someone employed by that entity. During the time he worked for SDC, it was his only source of income. People were coming into the SDC office inquiring about many different matters, including treaty questions which impinged upon the fields of fishing, forestry and economic development. His work included attempting to establish a head lease with the Department of Indian Affairs and he was eventually successful. As for the method of payment and the issue of deductions from his cheques, he stated he was informed by the Band accountant that the matter would be taken care of prior to the end of the initial three-month period set out in the contract by means of a re-calculation being undertaken at that time. The contract should have expired on December 5, 1997 but he continued working and received the sum of $5,000 each month. He recorded his hours of work during the 109 days at SDC in a diary or log and did so because it had become apparent to him in the early stages that there would be a lot of overtime. On the matter of overtime compensation, Butterfield stated Blaney advised him during a conversation held in the Band office on September 20, 1997 that he would be treated in the same manner as Elaine Tom which would permit him to be paid for the overtime hours worked or to take time off in lieu of payment. Butterfield stated he made a memorandum of the conversation (Exhibit R-4). Since he usually ate lunch at his desk every day, Butterfield had calculated his total hours of work in a particular manner but then undertook a re-calculation in which he subtracted the lunch time. When applying for employment insurance benefits he produced a record of hours (Exhibit R-3) - transcribed from his handwritten notes - to substantiate his claim which was based on 1,027.5 hours worked. He later performed a re-calculation of hours worked during the relevant period and - in a document filed as Exhibit R-5 - concluded the proper number of hours worked was 983.75. However, an official at the employment insurance office informed him his calculations were incorrect as they were based on the wrong provision in a regulation and the correct number of insurable hours worked by him at SDC was only 763.
[7] In cross-examination by Counsel for the appellant, Butterfield stated he sought advice from his accountant and agreed the handwritten notations on Exhibit R-1 did not appear in Exhibit A-1. He recalled that - on occasion - he had to take his daughter to school and he obtained a dispensation from Blaney to permit him to arrive at the SDC office at 9:00 a.m. Although there was no provision in the contract for benefits or overtime pay, Butterfield stated it was obvious to him that he was an employee. It was advantageous at the time to receive the full amount of $5,000 per month before the initial term of the contract had expired, during the hiatus, and thereafter following the official renewal and retroactive extension. There was no record of overtime presented to SDC on February 4, 1998 - the date of termination of his working relationship - but he stated the current Business Manager would have been aware of the extent of hours worked following Butterfield's claim for employment insurance benefits. He did not make any demand for any form of severance pay but considered an action for wrongful dismissal following his termination. He went to the Labour Standards Branch of the provincial government and made a claim for overtime. While working for SDC, he had business cards made up which described him as the Business Manager and the extension letter - Exhibit A-2 - referring to "extension of Business Manager contract" was typed on SDC letterhead and directed to Alf Butterfield - Business Manager. He never took up the issue of deductions from his pay with the Board at any time even after having discussed the matter with the accountant for the Band. After termination, he requested a Record of Employment from SDC but none was provided.
[8] Counsel for the appellant submitted a reading of the contract - Exhibit A-1 - does not lead one to conclude that it was a contract of service. There was no need for Butterfield to record hours of work nor was there anything unusual about a provider of services reporting to a client and attending meetings as part of contractual obligations. Butterfield was entitled to utilize the services of other individuals to assist him in fulfilling terms of the contract and he decided - on his own - not to act for other clients. Further, in Counsel's submission Butterfield did not take direction from anyone at SDC and he was providing services as an independent contractor.
[9] Counsel for the respondent conceded Butterfield - the intervener - permitted the situation - where no deductions being taken from his cheque - to continue without protesting to the Board of SDC. Referring to the contract - Exhibit A-1 - Counsel submitted the objectives could not be accomplished within three months and that the term was referred to as a probationary period. In addition, his work expenses were to be reimbursed and he was answerable to the SDC Board. Initially, he had responded to an advertisement from SDC seeking a Business Manager on the basis the position afforded a career opportunity to the right person. There was a chain of command established by the Board after Butterfield has requested clarification on that issue and for the first two months he had worked in an office next door to Blaney. Counsel pointed to the matter of the tools having been provided by SDC and the total lack of any opportunity for profit or risk of loss as there was no real ability to hire a replacement worker at less pay, even for portions of the contract. In Counsel's submission, the business was that of SDC which was an incorporated entity specifically designed to carry out business activities of the Sliammon Band and it was that business which was undertaken on a day-to-day basis by Butterfield who did not act throughout as someone who was in business on his own account. At paragraph 9 of the Reply, the Minister assumed that Butterfield had been employed by the appellant for a total of 763 hours during the relevant period. Counsel for the respondent concedes that is an incorrect amount but submits the jurisprudence supports the ability of the Court to fix a proper amount based on the evidence.
[10] In Wiebe Door Services Ltd. v. M.N.R. [1986] 2 C.T.C. 200, the Federal Court of Appeal approved subjecting the evidence to the following tests, with the admonition that the tests be regarded as a four-in-one test with emphasis on the combined force of the whole scheme of operations. The tests are:
1. The Control Test
2. Ownership of Tools
3. Chance of Profit or Risk of Loss
4. The integration test
Control:
[11] There is a clear division on the evidence regarding the issue of control. Blaney, the President of SDC, maintained Butterfield was not required to attend regularly at the office and could have worked at home or retained others to assist him as long as the work was performed within the timelines set out in the contract. On the other hand, Butterfield's evidence was that he had to attend at the SDC office every day at 8:30 a.m. and needed to obtain permission from Blaney to arrive one-half hour later on those days when he had to drive his daughter to school. Certainly, during the first two months Butterfield worked at SDC, his office was next to Blaney's and thereafter there was substantial contact with Blaney and the Board of SDC. Butterfield sought clarification from the Board as to the appropriate chain of command and was instructed by the Board members at a meeting to report directly to Blaney. Butterfield was hired as a professional within his area of expertise and one would not expect the same sort of supervision as would be applicable to a secretary or administrative assistant. Blaney had wanted Butterfield's contract to include a term that he devote all of his time to the posting of Business Manager and that he would be on site to conduct business each day between 8:30 a.m. and 4:30 p.m. Monday to Friday. While that term did not appear in the signed contract - Exhibit A-1 - it is reasonable to conclude that Blaney was able to make that - de facto - a part of the working relationship and that Butterfield agreed to abide by the establishment of those working hours. It would have been apparent that the requirements of the position demanded Butterfield's presence at the Band office or at the newly established SDC office in the new centre.
Tools:
[12] All of the necessary equipment, furniture, supplies and computers were provided by SDC and were located in an office assigned by the Sliammon Band to SDC. Telephone answering and secretarial services were provided by an employee of SDC working in the same office as Butterfield.
Chance of Profit or Risk of Loss:
[13] The appellant was paid the sum of $5,000 per month regardless of the number of hours worked and there was provision in the contract - by means of an attached schedule - for him to be reimbursed for work-related expenses. There was no opportunity for profit or risk of loss in any entrepreneurial sense.
Integration:
[14] The appellant advertised in a local newspaper for an individual capable of occupying the position of Business Manager of SDC. In turn, SDC was the corporate vehicle established in 1995 for the purpose of carrying out economic development on behalf of the 800 member Sliammon Band. A variety of matters were of concern to SDC and to the Sliammon First Nation. SDC hired Butterfield to undertake the work necessary to accomplish certain objectives as outlined in the contract. The wording of that document supports a characterization of Butterfield's status as an employee. It refers to a probationary period, requires him to be answerable to the SDC Board and to follow the mandate of SDC. In addition, he was required to sign certain pledges of confidentiality and agree to follow a code of corporate behaviour which could only have referred to SDC. At p. 206 of his judgment in Wiebe, supra, MacGuigan, J.A. stated:
"Of course, the organization test of Lord Denning and others produces entirely acceptable results when properly applied, that is, when the question of organization or integration is approached from the persona of the "employee" and not from that of the "employer," because it is always too easy from the superior perspective of the larger enterprise to assume that every contributing cause is so arranged purely for the convenience of the larger entity. We must keep in mind that it was with respect to the business of the employee that Lord Wright addressed the question "Whose business is it?"
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 at 738-39:
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.
There is no escape for the trial judge, when confronted with such a problem, from carefully weighing all of the relevant factors, as outlined by Cooke, J."
[15] The evidence revealed Butterfield had been involved in his own consulting business because one of the issues arising during contract negotiations was whether or not he would be retaining his former clients. In the draft contract – Exhibit R-1 - Blaney had intended to limit Butterfield to providing services exclusively to SDC during the term of the contract but that provision did not make it into the signed contract - Exhibit A-1. It was Butterfield's own decision not to work for other persons or entities while carrying out his duties at SDC. From his perspective, it was clear he regarded himself as an employee of SDC even though his prior relationship with others - whom he regarded as clients - may have been that of an independent contractor. It would be highly unusual for an independent contractor to continue to provide services following the expiration of the term set forth in the contract. In the within appeal, Butterfield's term expired on December 5, 1997 and he continued working and received the usual sum of $5,000 per month. Then, on January 23, 1998 the SDC Board - by memorandum - extended his contract to February 2, 1998 on a "day-to-day" basis pending completion of the evaluation process being undertaken by an outside group retained by SDC. It was clearly the intent of that memorandum to recognize the period following December 5, 1997 and extending to January 23, 1998 as being subject to the extension of the original contract but that is more applicable to a contract of employment since the continued provision of services could be seen as having created an implied contract of employment notwithstanding the expiration of the term stated in the written contract.
[16] What the parties thought their relationship was will not change the facts. In the case of The Minister of National Revenue v. Emily Standing, 147 N.R. 238, Stone J.A. at p. 239 stated:
"...There is no foundation in the case law for the proposition that such a relationship may exist merely because the parties choose to describe it to be so regardless of the surrounding circumstances when weighed in the light of the Wiebe Door test."
[17] It is instructive to consider the manner in which the parties conducted themselves in the course of the working relationship. Butterfield - from the outset - regarded himself as an employee after having obtained advice on the subject from his own accountant and subsequent to perusing relevant material provided by Revenue Canada. From his standpoint, he did not fit into the category of independent contractor and he provided Blaney with a copy of the material he had obtained from Revenue Canada setting out various guidelines in order to assist in determining the status of a worker. Butterfield contacted the accountant retained by the Band and SDC and discussed the matter of deductions being taken off his cheque. In the interim, he needed the money and was quite content to receive the full amount of the cheque each month. Later, he contacted the accountant again and was informed there would be a re-calculation on his subsequent cheques which would - in effect - catch up his past deductions. Butterfield did not make it clear to the SDC Board that he was - at all times - considering himself to be an employee rather than an independent contractor. Instead, he found it beneficial to lie in the weeds and wait until his services had been terminated before he went to an employment insurance office to make his claim for benefits. He had not presented any claim for overtime pay to the Board nor had he otherwise asserted his status as employee. The jurisprudence is clear that the parties cannot assign themselves a status unless it accords with the facts. However, I find it regrettable that people can accede to an arrangement which - on the surface - may have several indicia consistent with a relationship of independent contractor and then claim to be an employee once the working relationship has come to an end. It seems that one practical benefit of this volte-face is that the born-again employee has been able to escape paying employment insurance premiums and Canada Pension Plan contributions throughout the term of employment and the payor-employer becomes the subject of an assessment for both parts of the premiums and/or contributions on the basis it is the responsibility of an employer under the provisions of the Employment Insurance Act and Canada Pension Plan to remit the appropriate premiums and contributions pertaining to an employee. The facts in the within appeal are not like those sometimes found in appeals where the worker does not have any real bargaining power and is basically forced to go along with a purported status of independent contractor which has been thrust upon him or her by a payor who insists on the worker acquiescencing to that characterization as a condition of being hired. In this instance, Butterfield was a highly educated professional and could have taken steps early on to clarify his status but that is a matter of morals and business ethics and does not give rise to any form of estoppel or other consequence in law which is capable of preventing the Court from arriving at a true characterization of status in accordance with the evidence.
[18] Taking into account all of the evidence and applying it in the manner directed by the Court in Wiebe, supra, I find that Butterfield was engaged in insurable and pensionable employment with the appellant during the relevant period and the decision of the Minister as to his status is correct.
[19] An issue arose as to the number of insurable hours worked by Butterfield during the relevant period. In the decision - dated September 4, 1998 - the Minister decided the total insurable hours were 763 pursuant to subsections 10(4) and 10(5) of the Employment Insurance Regulations. Counsel for the respondent advised the Court that this number had been incorrectly calculated. Butterfield offered up two different versions of the hours worked based on varying theories utilized by him during a process of reconstruction from notes and diaries not produced in evidence. While Butterfield stated he had taken some action with respect to his employment at SDC by filing a complaint to the appropriate provincial tribunal, there was nothing produced - by him - to indicate whether that claim related to overtime or to other matters and no details of the claim - as it pertained to hours worked during the relevant period - were provided. The Notice of Intervention filed by Butterfield in each of the appeals - 1999-35(UI) and 1999-36(CPP) - was in the form of a letter requesting it be filed as an Intervention and makes no reference at all to the issue of insurable hours. Pursuant to the paragraph 9(3) of the Tax Court of Canada Rules (E.I.) an intervener:
"... may state in the notice of intervention that the intervener intends to rely on the reasons set out in the notice of appeal received by the intervener or the reasons set out in the notice of intervention of another intervener."
[20] In the within appeal, Butterfield - as intervener - was obviously not relying on the position taken by the appellant in the notice of appeal since it was diametrically opposed to his claim of having been employed under a contract of service. In such circumstances, Butterfield should have filed a notice of intervention in Form 9 - pursuant to Rule 9(1) - in which he set forth facts admitted or denied as alleged in the notice of appeal and then set out a statement of further facts upon which he intended to rely. Had the matter of insurable hours been an issue, that should have been the subject of pleadings by the Minister, the appellant or the intervener. The matter did not arise until part way through the evidence of Blaney, at which time Counsel for the Minister advised that the calculation - by the Minister - of 763 hours was not correct. There must be some authorization of overtime by an employer or an acceptance of it once it has become obvious extra work is being performed for the benefit of the employer. A worker cannot make a unilateral personal decision to work extra hours and then spring the accumulated time - as alleged - as a surprise once the working relationship has been terminated. Butterfield was not hired on an hourly basis nor do I find there was any agreement concerning overtime ever entered into between Butterfield and Blaney in his role as President of SDC. As for the reconstruction of hours worked by Butterfield - as documented in Exhibits R-3 and R-5 - I do not have sufficient confidence in those numbers to rely on them as opposed to the number of 763 hours of insurable employment referred to in the decision of the Minister. Further, I cannot find that such overtime was authorized since SDC never considered itself to be an employer of Butterfield during the relevant period and would have had no need to direct its attention to this aspect of Butterfield's work. I do not know that the Minister's calculation is incorrect and there is no reason to choose an alternative number of insurable hours worked because it would not be supported by the evidence. Therefore, I decline to vary the decision in that regard.
[21] The appeals - 1999-35(EI) and 1999-36(CPP) - are hereby dismissed and the decision of the Minister in each instance is hereby confirmed.
Signed at Sidney, British Columbia, this 28th day of February 2000.
"D.W. Rowe"
D.J.T.C.C.