Date: 20010219
Docket: 2000-2975-EI
BETWEEN:
KELLY WHIFFIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
A & P DELIVERY, A DIVISION OF MITLIN ENTERPRISES LTD.,
Intervenor.
Reasons for Judgment
Rowe, D.J.T.C.C.
[1] The appellant appealed from a decision of the Minister of National Revenue (the "Minister") dated June 5, 2000 wherein the Minister decided the working relationship between the appellant and the intervenor, A & P Delivery, a Division of Mitlin Enterprises Ltd. (Mitlin) operating as A & P Delivery (APD) from August 2, 1998 to August 3, 1999 did not constitute insurable employment within the meaning of the Employment Insurance Act (the "Act") because there was no employer-employee relationship pursuant to a contract of service.
[2] Kelly Whiffin testified he resides in Abbotsford, British Columbia and, prior to entering into a working relationship with APD, had been a warehouseman, a shipper and receiver and had driven a delivery truck but always on the basis of being an employee. On December 7, 1997, he answered an advertisement placed by Rick Clark of Rick Clark Trucking. Clark owned two trucks used to make deliveries for APD but had decided to work full time in the APD dispatch office and needed a driver for one of the trucks. On January 5, 1998 Whiffin began driving Clark's truck pursuant to an agreement whereby Whiffin would receive 75% of the amount Clark received from APD which - in turn - was an amount equal to 75% of the gross receipts collected by APD as represented by the waybills pertaining to the completed deliveries. Clark was functioning as the APD dispatcher and would assign the deliveries to the various trucks. Whiffin was handling between 5 and 10 deliveries per day, consisting of general merchandise hauled on a one-ton flatbed or on a larger 5-ton unit. The deliveries were either collect or pre-paid and APD calculated the cost of the delivery. While working for Clark, Whiffin stated he had to be at the APD office at 7:30 a.m. and was required to contact the dispatcher to see whether there was a pick-up which he could accommodate on the way to the APD premises in New Westminster. Then, he would wait in his truck - in the general area of operations - until called by the dispatcher to carry out a delivery. On March 1, 1998 the arrangement with Clark came to an end. Whiffin stated he had earned only $900.00 since January 5, 1998 and Peter Vandenbroek - whom he regarded as being the effective owner of APD - paid him the sum of $300.00 - on two occasions - to assist him because his relationship with Clark was not producing sufficient revenue. Clark left his position as dispatcher for APD and also took his two trucks with him. Whiffin stated he was approached by Peter Vandenbroek who wanted him to continue working as a driver at APD. Vandenbroek told him there was a former APD driver - Santokh (Sam) Sian - who had a truck for sale and they went to inspect the unit at a Husky Station on Marine Drive at some point during the last week of February, 1998. At that time, Whiffin stated there was no discussion with Sian other than concerning the state of repair and other details relating to the truck. Whiffin said he was told by Vandenbroek that Sian would not accept any amount less than $10,000.00 for the truck and it could be purchased on the basis Whiffin would make 20 payments of $500.00 per month. Whiffin stated he had no part in the subsequent arrangement whereby the truck was purchased from Sian pursuant to a written contract - Exhibit A-1 - dated March 2, 1998. Whiffin - as far as he can recollect - signed a document of some sort upon which there was only his signature and that of Peter Vandenbroek and did not include the name or signature of Santokh Sian. As for the agreement - Exhibit A-1 - Whiffin noted his name is misspelled - as Whiffen - and the wrong model number was used for the particular Ford truck purchased from Sian. In Whiffin's recollection, the document he signed required him to make 20 payments - each in the sum of $500.00 to APD - since it later registered the truck at the Motor Vehicle Branch. Whiffin stated he had no further dealings with Sian. APD insured the vehicle and informed him the amount of the premium which would be deducted from his earnings in the same manner as the monthly sum of $500.00 pertaining to the truck purchase. Whiffin was required to pay the costs of fuel and maintenance for the truck. He was charged for the two-way radio owned by APD - plus an air-time fee - and the amount owing was deducted from his earnings which were based on 75% of gross revenue generated from the deliveries according to the calculation of the delivery charge - by APD - as stated on the waybill. In the course of discussions concerning the working arrangement with APD, Whiffin stated Peter Vandenbroek had indicated the truck should produce between $1,500.00-$2,000.00 revenue every two weeks and had worked out some numbers on a piece of paper. On March 3, 1998, the 1989 Ford truck was registered - Exhibit A-2 - and insured in the name of Mitlin Enterprises Ltd. The appellant was present in the insurance agent's office at the time and he was listed as the principal operator of the truck. Whiffin stated he carried on in the same manner as when he had been driving one of the trucks owned by Rick Clark. Whiffin took the vehicle home each night and stated he understood the truck was not to be used for any purpose other than to make the deliveries as dispatched by APD. He had to be in his vehicle between 7:00 a.m. and 7:30 a.m. and reported to a location on Annacis Island or to any other location as instructed by the dispatcher. At the end of the working day - usually between 2:00 p.m. and 4:00 p.m. - the dispatcher would advise there were no further deliveries to be made and Whiffin would head home. There were between 10 and 12 other drivers working at APD and Whiffin stated he knew of two others who were working under the same conditions as those existing between himself and APD. His understanding was that he was not free to refuse a delivery but did so on one occasion a few weeks before he ceased working at APD because he was on his way home when the dispatcher called. Earlier, he had complained to the dispatcher about twice a week about having to accept some of the assigned deliveries. He stated he received the response, "Why don't you just do it or give the truck back?", and his final refusal to make a delivery led to the dispatcher swearing at him. During the time he worked at APD, Whiffin did not take any holidays or vacation time but was away from work a total of 7 days due to illness. His understanding of the arrangement with APD was that he was not allowed to work for any other companies during the weekend. He was informed by Vandenbroek that there was no one working dispatch for APD during the weekends. Whiffin's earnings from making deliveries assigned by the APD dispatcher amounted to between $700.00 and $850.00 every two weeks after all expenses had been deducted - including the truck payment in the sum of $500.00 - and he had never requested any additional work other than that assigned between Monday and Friday. In order to take a day off, the dispatcher had to be notified and the absence was marked down on a calendar in the office but he had never been refused permission to miss work for a day. On a slow day, he would sit and wait - with three or four other drivers - for a dispatch and he never discussed with anyone the possibility of using the truck for any purpose other than making deliveries for APD. He had understood from Peter Vandenbroek that once all the payments had been made on the truck it would be transferred into his name, at which point he was free to take it anywhere. While he operated the truck at APD, it carried signage on the doors - measuring 16 inches by 6 inches - stating: A & P Delivery, a Division of Mitlin Enterprises Ltd. It was not mandatory to wear a uniform when making deliveries but they could be purchased from the APD office. Turning to the Reply to Notice of Appeal and the assumptions set forth in paragraph 6 thereof, Whiffin stated he was aware of two other individuals who had entered into a similar arrangement as the one he had with APD whereby the company owned the trucks and the workers were only drivers. While the division of gross revenue flowing from the deliveries was 75%-25% in his favour at the outset, Whiffin stated it was reduced to 70%-30% in May, 1999 and there had been no notification to him or any discussion with the drivers concerning that event and he noticed it only when he received a statement setting forth his revenue and expenses. He did not agree the purchase of the truck had merely been arranged by APD - as set forth in paragraph 6(e) - in that he considered he had purchased the truck directly from APD. The customers were all obtained by APD and he disagreed with the statement - set out at paragraph 6(f) - that he had the right to refuse deliveries as a matter of course. He agreed APD collected all the money from the customers, retained 25% - later 30% - of the gross amount and paid the balance to him, less any charges such as insurance, Workers' Compensation Board (WCB) contributions, loan payments of $500.00 per month to Sian and certain other expenses related to the operation of the truck within the APD business system. Whiffin's understanding was that he had to drive the truck personally, except during a holiday and only if that substitution had been arranged in advance with APD. He denied the assumption - at paragraph 6(p) - was correct in stating APD did not have a preferred call on his services and that he was free to perform services for other companies at the same time. He also believed he was under the control of APD and had no ability to increase his profit. In his view, APD required the vehicles to make the necessary deliveries and the one-ton flatdeck operated by him was suitable for hauling crates, pipes, and general freight, and there were four other units capable of carrying the same type of load. Whiffin referred to photocopies of cheques - Exhibit A-3 - received from APD and stated he had not received any accounting of funds until May, 1999 and had always assumed the amount of each cheque paid to him had accurately represented the sum owing to him. In July, 1999, Peter Vandenbroek mentioned to him that the truck payments - to Sian - had fallen into arrears by a "couple of months" and this had come as a surprise because amounts representing the $500.00 payments had been deducted from his earnings. Whiffin explained he went to visit Sian on August 2, 1999 to inquire into the situation and was told that APD was four months in arrears on the truck payments and no money had been received on that account since May, 1999. On August 3, 1999, Whiffin had a bronchial infection and called in sick. That night, at about 6:30 p.m., Angela Vandenbroek - wife of Peter Vandenbroek - telephoned him at home and told him the relationship was not working out and APD wanted their truck back. Whiffin stated he asked her, "Am I fired?" and received the response, "Yes". Whiffin requested he be allowed to speak to Peter and was told by Angela that Peter was "too irate to speak to you now" because of the fact Whiffin had "gone behind his back" in speaking to Sian about the truck payment problem. On August 4, 1999, the appellant stated he requested his Record of Employment from Angela Vandenbroek but she informed him she did not know anything about such a document. At the same time, Whiffin said he discussed with Angela the matter of some holdback pay he had coming to him and was informed that money would be paid to him once the truck had been returned. On August 6, 1999, he returned the truck to Vandenbroek's house and received his final cheque in the sum of $2,148.61 together with a statement of accounting - Exhibit A-4. Then, he went to the Employment Standards Branch (ESB) and filed a claim against APD seeking holiday pay and compensation for all the payments he had made on the truck and also for the costs of fuel, repairs and maintenance as well as an amount for severance pay. He also applied for employment insurance benefits which were denied. Following his complaint to the ESB, an official at ESB forwarded him a document, described thereon as a Transfer/Tax Form - Exhibit A-5 - which had been used to transfer the Ford truck from the registered owner - Mitlin Enterprises Ltd. - to the purchaser, Peter John for the sum of $2,500.00. Whiffin had calculated that during the time he drove the truck at APD, he made payments in the sum of $6,800.00 by way of deduction from his earnings. He stated - again - that he never felt as though he had any freedom regarding the vehicle as he considered he had always been told by APD management or dispatchers where to go, what to do and - finally - had been instructed by Angela Vandenbroek to return the truck.
[3] In cross-examination, Kelly Whiffin agreed Rick Clark had been an owner/operator while his trucks were working for APD and that when he drove one of Clark's trucks it was in the capacity of employee. He explained the dispatcher assigned deliveries to the vehicle most suited to the job. On occasion, some customers requested a specific driver and over the course of several deliveries a rapport could be developed. His usual method of operation was to wait in his truck near the point of his last delivery which could be anywhere in the Lower Mainland. Then, another dispatch would be received and he would proceed to complete the next delivery. The waybills were turned in to the APD office every second day and prior to doing that he would examine the weights recorded on the slips. There was a standard minimum fee of $37.50 for a delivery but APD set rates for deliveries after considering the weight and size of the item as well as the distance travelled in the course of delivery. He stated he was often requested to make a delivery for the minimum charge and he always believed he could not refuse such an assignment. As for APD uniforms, he purchased three - two for him and one for his wife - and they were paid for by way of deduction from his gross revenue. Peter Vandenbroek provided the self-adhering signs which were affixed to the truck. As far as Whiffin was aware, two other drivers - Brian Kufler and Neil Morgan - had similar working arrangements with APD. He agreed he had been experiencing financial difficulties during the time he worked driving truck for Rick Clark and acknowledged that Peter Vandenbroek had given him the sum of $600.00 to supplement his income. At that time, his credit rating would not have permitted him to obtain a loan from a bank or other financial institution in order to purchase the Ford truck from Sian. Mitlin - the parent company of APD - provided Sian with post-dated cheques, each in the sum of $500.00 and Whiffin agreed that pursuant to the terms of the purchase agreement - Exhibit A-1 - he is named as the purchaser of the Ford truck. However, he went on to state that, although his own signature appears thereon, he had not signed that particular typed document and considers it to be a forgery since he is adamant about the manner in which his family name is spelled and would not have signed any agreement in which his name had been spelled incorrectly, as Whiffen. Counsel for the respondent handed Whiffin a document - Exhibit R-1 - and he agreed it was the original of Exhibit A-1 and that his signature appeared thereon but he maintained that when he signed a document concerning the Ford truck it did not have any typing on it. In December, 1998, he was in a motor vehicle accident while driving the Ford truck home from work. He filed an insurance claim with Insurance Corporation of British Columbia (ICBC) seeking compensation for repairs to the vehicle as well as an amount for pain and suffering. He stated he filed the claim with ICBC because he had been operating the truck at the time of the collision and he asked Peter Vandenbroek to provide a letter to ICBC setting forth the amount he had earned from driving the truck for APD in order to confirm that he had lost revenue as a result of the accident. When the settlement was received from ICBC - in the sum of $5,000.00 - Whiffin agreed he did not direct any of that amount towards paying off the balance owing on the truck. Throughout his working relationship with APD, Whiffin paid for all repairs to the truck and carried out his own maintenance, wherever possible, and was responsible for all fuel and insurance costs. He agreed he was the only one who had keys to the vehicle. He lived one hour away from the APD centre of operations and he drove the truck back and forth each working day. Since it used propane as fuel, the vehicle was relatively cost-efficient. At one point, Whiffin stated another driver confided in him that Peter Vandenbroek had told him that Whiffin was not free to take the truck and find work elsewhere until the balance owing on it had been fully paid. Other times - when business was slow and the drivers were "whining" - the appellant stated Peter Vandenbroek would respond in a similar fashion. Whiffin never had a substitute driver operate the Ford truck but would have needed one in the event he had taken a holiday. On May 9, 1999, a meeting was held with the drivers in a pub in Surrey and Peter Vandenbroek stated the holdback period had to be increased by an additional two weeks but there was no discussion at that time concerning the change in the division of gross revenue from the existing 75%-25% split to a new formula based on 70% to the driver and 30% to APD. He understood APD was experiencing some financial problems and required additional time in order to meet the payroll and that was the reason behind increasing the holdback. During the three-day period the truck was out of service, there was no revenue generated. Whiffin agreed that - from time to time - the sum of $500.00 representing the truck payment to Sian - would not be deducted from his gross earnings because he had requested Vandenbroek to " hold off " or to "go easy on me" during a month in which the truck revenue was less than he needed for his personal commitments, such as house rent which had fallen into arrears. The accounting details - in the form of adding machine tape - attached to Exhibit A-4 - had been affixed to the wall in the office in the Vandenbroek residence and also in the APD working space on Annacis Island. Whiffin stated the only reason he went to talk to Sian about arrears in the truck payments was to discover the reason they had not been made. In terms of the manner in which he reported his income flowing from the truck in connection with his arrangement with APD, Whiffin responded by explaining he had not filed any income tax returns for the 1997, 1998 and 1999 taxation years. During that period, he agreed no income tax had been deducted from his gross revenue at APD nor had he ever paid any employment insurance premiums.
[4] In cross-examination by Peter Vandenbroek - agent for the intervenor - the appellant, when it was suggested to him that the purchase contract - Exhibit A-1 - had been signed at an office used to carry on APD business, stated he could not recall that event. He agreed he and his wife had been friends - in the context of a working relationship - with the Vandenbroeks and had been over to the Vandenbroek home for dinner. Even though the arrangement concerning the truck and the required payments had been subject to a written agreement, Whiffin stated he regarded the entire transaction as a "handshake deal" because the revenue of a driver was subject to fluctuation. He recalled a problem had arisen at the business premise of an important customer of APD which resulted in a request being made to APD that he not be dispatched there again but he was still able to do some deliveries to that location by dropping them off at the rear of the building rather than following the usual procedure of taking the packages to the front office. Although the Ford truck had been used by the Whiffins to visit his father, Whiffin stated he always thought it was "an A & P truck" so he did not consider it to be generally available for personal use even though he had his own signs made up for display on the unit.
[5] In re-examination by his counsel, Whiffin could not recall whether or not the sum of $600.00 given to him by Peter Vandenbroek had been deducted at a later date from his earnings but thought that was possible. The person who signed as a witness to the contract - Exhibit A-1 - was a worker at Westlund Industries - the site of Peter Vandenbroek's employment - and Whiffin denied he had ever taken that document to Sian in order to obtain his signature thereon. As for the sum of $5,000.00 received from ICBC, Whiffin indicated some of that amount was attributable to lost income because - following the accident - he could not do heavy lifting or drive as many hours and he estimated he had lost approximately $500.00 every two weeks as a result. Regarding the duties of the dispatcher, Whiffin agreed a specific request by a customer for his services would be accommodated whenever possible but he understood the dispatcher made the final decision regarding who would be assigned a particular trip.
[6] Angela Whiffin testified she has been married to the appellant for 12 years and they are the parents of one child. Following a seven-year separation, they reconciled in March, 1999 and resumed cohabitation. At about that time, she had answered a telephone call from a woman requesting to speak with Kelly Whiffin who - after identifying herself as Angela Vandenbroek - went on to describe herself as being "his boss". Angela Whiffin stated she would pick up the appellant's pay cheque every two weeks and on one occasion went with Angela Vandenbroek to a neighbourhood pub and during the course of discussion, Vandenbroek had inquired about the possibility of the Whiffins being able to obtain a loan in order to pay off the balance owing on the truck. At that time, Angela Whiffin stated Angela Vandenbroek had tears in her eyes because the appellant's earnings were so small and she told Whiffin it made her feel bad when writing such small cheques to an "employee". On August 3, 1999, Kelly Whiffin was at home - sick - when Angela Vandenbroek telephoned and talked to him. She overheard Kelly say "So, Peter is irate, is he "followed by him asking, "So, you are firing me?" Then, Angela Whiffin stated Kelly hung up the telephone and said, "They are firing me for going behind his (Peter's) back" which she understood to refer to the conversation Kelly had held with Sian about the arrears on the truck payments.
[7] In cross-examination by counsel for the respondent, Angela Whiffin explained that during their seven-year separation they had actually been living under the same roof but she and her son had lived upstairs while Kelly and his mother had occupied the lower level of the house. After having received some student loans, she had been attending school but an injury in 1997 - followed by some surgery in 1998 - forced her to drop out so that - in 1999 - the appellant's earnings were the sole source of family income. In August, 1999, their family was having some financial problems and the rent was in arrears by one month. She believed Kelly was told by Angela Vandenbroek that he would receive his final "wages" when he returned the truck. She stated she had only been a guest at the Vandenbroeks' home on one occasion but they had spoken on the phone now and then.
[8] In cross-examination by Peter Vandenbroek - agent for the intervenor - Angela Whiffin stated she did not recollect having brought Angela Vandenbroek a bottle of wine or asking her to provide details of Kelly's whereabouts during the day. Whiffin explained that a woman, who worked at a business that was a major customer of APD, had been phoning Kelly at home and sending him flowers. Angela Whiffin stated she went to the office of that customer and had a conversation with the woman's boss during which she requested that his employee be instructed - by him - to discontinue her romantic pursuit of Kelly. As a consequence of her visit, the person to whom she had spoken about her problem then telephoned Peter Vandenbroek and requested APD no longer assign Kelly Whiffin to any deliveries to that business premises. Following that, Angela Whiffin stated she went to one of the two business sites utilized by APD where she confronted Kelly and an argument ensued. Angela Vandenbroek intervened by attempting to assure her that Kelly was probably innocent of any involvement with this particular female. Angela Whiffin stated she doubted that Kelly's ensuing inability to attend at the business premise of a major APD customer would have had any affect on his income.
[9] Peter Vandenbroek testified he is self-employed and resides in Surrey, British Columbia. In 1986, he began working as a driver for Westlund Industrial Supplies Ltd. (Westlund) in New Westminster. Later, he purchased his own truck and obtained a motor carrier license which he used in the course of a partnership enterprise. When his partner bought him out, Vandenbroek retained the license. Mitlin Enterprises Ltd. (Mitlin) was incorporated in 1993 and the shares were held equally by him and his wife, Angela Vandenbroek. She handled the necessary bookwork and administration but was not generally involved in the dispatching of trucks. Peter Vandenbroek stated he continued to work at Westlund - as an employee - in his capacity as a shipper and his employer was satisfied with that arrangement. The APD drivers would attend at the Westlund yard or hang out in a coffee shop in the midst of the industrial area. Some of the drivers left their trucks in that vicinity overnight and used another vehicle to drive back and forth to work. Approximately 40% of the total volume of APD deliveries originated from Westlund. Rick Clark was an owner/operator who owned two trucks and he had placed an advertisement in a newspaper seeking a driver for one vehicle. When Clark interviewed and then hired Kelly Whiffin, APD requested to see Whiffin's driver abstract for insurance purposes. At that time - in January, 1998 - APD had nine trucks available to make deliveries and it became obvious that a dispatcher was needed. Rick Clark - on behalf of APD - leased some space and set up an office. Later, Clark left and took his two trucks with him. During the time the appellant had been working - as a driver - for Clark, Vandenbroek stated he and Kelly had become friends and he was aware that Sian - a former owner/operator at APD - had purchased a gas station and had a truck for sale at the price of $10,000.00. In Vandenbroek's opinion, that amount was excessive but Sian would agree to sell the truck to the appellant only if Peter Vandenbroek and/or Mitlin guaranteed the payments which were scheduled to be paid at the rate of $500.00 per month. Mitlin paid the sum of $750.00 to register the truck and a further sum of $400.00 to equip the vehicle with decent tires. Vandenbroek explained that in the delivery business there is no guarantee of revenue and the drivers had to "hustle" in order to generate income. The rate sheet had to be provided to the Motor Carrier Commission. Drivers were entitled to mark down time spent waiting at a delivery site and this was charged out at the rate of $32.00 per hour and then factored into the invoice sent to the customer. Most owner/operators were well aware of the need to set aside some money to cover the slow periods but the appellant had financial troubles. Initially, Sian was given 10 post-dated APD cheques, each in the sum of $500.00. The premium to insure the Ford truck - for delivery work at APD - was in the sum of $168.01 per month. By April, 1998, the appellant began asking for some relief from the deductions taken from his gross earnings and as time went on he got further behind including amounts owing as a result of purchasing three jackets with the APD logo. The two-week holdback period was based - in part - on the need to have some money retained by APD as security in the event a driver left and took some property belonging to a customer but was also required because customers did not pay their accounts to APD for 30 days. A meeting was held in May, 1999, and the holdback period was increased to four weeks. The drivers present at the meeting were not happy with this change but understood it was necessary in the same sense as raising the APD share of gross revenue - from 25% to 30% - flowing from delivery fees. Vandenbroek stated he saw this change in the revenue-sharing structure as an interim measure which he thought had been related to the hiring of a dispatcher. He spoke to each driver individually or in groups of three and later a letter of explanation was placed inside the envelope containing the cheque for net earnings during that pay period. In 2000, the division of revenue - for most owner/operators - reverted to the previous 75%-25% split but some are paid a different percentage. After the problem at the site of a major customer - arising from the visit of Angela Whiffin - Peter Vandenbroek stated he attempted to send Kelly to the rear of that customer's premises but the ruse was discovered and another call was received by him from a person in management at that business informing him that APD was not to assign Kelly Whiffin to any deliveries at their premises. The normal customer base of APD was in the New Westminster area but the appellant had indicated he thought he could locate some work in the Abbotsford area as they both understood it was costing him a lot of money to drive back and forth - in the Ford truck - each working day. After the initial supply of post-dated cheques to Sian had been cashed, the payments to Sian were behind about one month but Vandenbroek stated he spoke to Sian and informed him the arrears would be paid. Vandenbroek spoke to the appellant about whether or not a loan could be obtained for the purpose of reducing the amount of the monthly payments on the truck and Whiffin responded by stating he would use the proceeds of his insurance settlement from ICBC to pay off the balance. As a result, Vandenbroek - for two or three months - did not continue to deduct the full amount of the $500.00 payment from Whiffin's gross revenue. In Vandenbroek's opinion, the Ford truck was worth between $7,500.00 and $8,000.00 at the time of purchase. The original purchase agreement - Exhibit R-1 - had been drafted by Sian who later produced it to him. On March 2, 1998, the document was signed by Kelly Whiffin at the Westlund business premises and the person signing as a witness was Brian Cuthbert. Vandenbroek signed the agreement as a "Co-Signor". Then, the appellant took the document to Sian to have it signed and later Vandenbroek discovered a photocopy of that agreement. On August 4, 1999, the appellant attended at the APD office and requested a better accounting and a statement pertaining to his earnings and deductions. The same day, Sian telephoned Vandenbroek and said, "Pete, this guy you helped out is down here telling me you are ripping him off". He admits he was upset by this message and was still feeling that way when he went home. Later, he attempted to talk to Kelly but when he telephoned the Whiffin residence neither the appellant's wife nor his mother would pass on any message to him. Vandenbroek stated he had to dispose of the Ford truck - still parked in his driveway - and he placed an advertisement in a Buy and Sell publication in which he stated an asking price of $5,000.00. No offers in that range were received and he became uneasy about the reaction of his neighbours to this one-ton truck - with an 8 foot by 14 foot flat deck - being parked in a residential area. About a week later, he accepted the sum of $2,500.00 for the truck and signed the transfer form in favour of the purchaser. The money from the sale was paid to Sian. Vandenbroek stated APD had between 8 and 12 trucks available to handle deliveries and Mitlin owned a 1996 5-ton truck - with a 20-foot deck and equipped with a crane - that was used in delivering construction material. Brian Cuthbert owned his own pickup truck which he used for deliveries but also drove the Mitlin unit and was compensated on the basis of 45% of the revenue generated. That large truck was the only vehicle not owned by the drivers. There were no written contracts in place and the owner/operators were a tightly-knit group attempting to grow the business along with the Vandenbroeks. There was no discipline meted out, no one was ever fired and the drivers could leave at any time. Whiffin was the only person who had keys to the Ford truck driven by him and Vandenbroek said it was never regarded - or referred to - as being an APD or Mitlin truck. As far as he was concerned, the purchase agreement was between the appellant and Sian except he was involved as a sort of guarantor to ensure the payments were deducted from Whiffin's earnings and then remitted to Sian. There was never an issue arising in relation to any repossession of the truck by Sian as there was only about $2,500.00 remaining due on the balance. Vandenbroek left his employment at Westlund in August, 1999 but while he was working there and operating the APD business, he regarded APD as a broker involved in finding work for the drivers who operated independently. In his opinion, he and his wife had no control over these individuals nor did they have any authority to mete out discipline. In the event drivers did not perform the work, then another courier/delivery company would be telephoned and hired to make the required delivery in order to satisfy the needs of an APD customer.
[10] In cross-examination by counsel for the appellant, Peter Vandenbroek agreed another dispatcher had been hired to replace Rick Clark when he left APD in March, 1998 and in the interim one or more of the drivers or Angela Vandenbroek had probably carried out that function. The meeting regarding the reduction in the drivers' share of the revenue did not occur until May, 1999 and Vandenbroek agreed the change was made to generate more revenue for APD but was not related - as he had earlier stated - to the hiring of a dispatcher. He stated the Motor Carrier Commission requires a driver's abstract for any person driving a vehicle under Mitlin's authority and this would also apply to any substitute driver. He agreed Mitlin was the legal registered owner of the Ford truck but always regarded it as being available to the appellant to use in any manner he saw fit. Vandenbroek stated that, while Santokh Sian, the previous owner of that vehicle was a good friend, discussions between Sian and the appellant took place at the Westlund premises and Vandenbroek denied ever attending at the service station - owned by Sian - for that purpose. When the agreement - Exhibit R-1 - was signed, Vandenbroek reiterated Sian was not present. Later, the provincial sales tax (PST) had to be paid on the transfer of the vehicle and it had to be licensed and insured in order that the appellant could begin using it in the course of the delivery business. The normal procedure was for a driver to complete the waybills by entering the weight of the item, distance travelled, waiting time - if relevant - and Vandenbroek would then calculate the amount to be billed to the customer. All drivers had rate sheets to hand out to customers. While Angela Vandenbroek was involved in the business from time to time she did not ever give any direction to any drivers and was mainly occupied with handling bookkeeping for the business from an office in their own home. Turning again to the details surrounding the execution of the purchase agreement - Exhibit R-1 - Vandenbroek stated the document was signed in a fabrication shop at the rear of the Westlund premises. Whiffin had picked up the document - necessary to transfer ownership of the vehicle - and it had been completed and signed by Sian prior to Vandenbroek signing it at the Westlund premises. Following that procedure, he and Whiffin attended at the ICBC agent to register, license and insure the Ford truck. The purchase price of the unit - $10,000.00 - was not of any concern to Vandenbroek as Whiffin had negotiated the deal with Sian and could have purchased it - or not - as he saw fit. There was no discussion held about what would occur if the appellant could not make the payments but until the balance owing to Sian was paid in full, Vandenbroek stated it was good business sense for the truck to remain registered in the name of Mitlin. When the appellant was involved in the motor vehicle accident, ICBC required confirmation of his loss of revenue in order to adjudicate his claim. After speaking to an insurance adjuster on the telephone, Vandenbroek sent a letter - Exhibit A-6 - setting forth details of the appellant's earnings in previous months as compared with the revenue generated by three other one-ton trucks which he referred to therein as "our three one-ton trucks". He stated he had not meant to imply Mitlin was the owner of those vehicles merely that they were of the same sort as the one operated by the appellant and were generating more revenue than Whiffin during the same period. Vandenbroek stated he had never been aware of any dispute or problem between the APD dispatcher and the appellant and there was no authority in that person to make any comment concerning the repossession of the Ford truck. He agreed he was annoyed when the appellant had confided in Sian that he was being "ripped off" and he wanted Angela Vandenbroek to telephone Whiffin at home as he was too angry at the moment to discuss the matter with the appellant. He thought Whiffin would come over to the Vandenbroek residence and discuss the incident but when the appellant did come to their house on August 6, 1999, it was for the purpose of dropping off the Ford truck. Based on information available from their in-home office, Angela Vandenbroek drew up an accounting of money owed to the appellant and prepared a cheque in that amount which was given to him at that time. Peter Vandenbroek stated he attempted to contact the appellant following that event because he had paid a total of $6,800.00 towards the purchase of that vehicle but was never able to speak to him. There was still a balance owing on the truck which had to be paid and it was necessary - in the absence of any communication from the appellant - to take steps to sell the vehicle and to pay out the monies to Sian in order to extinguish the debt.
[11] Counsel for the respondent chose not to cross-examine.
[12] Angela Vandenbroek testified she lives in Surrey, British Columbia, is married to Peter Vandenbroek and owns 50% of the shares in Mitlin. During the relevant period, she worked three days a week for Crane Supplies and two days a week at the APD office. On one occasion, the appellant came into the office and inquired about the truck payments. She later obtained the relevant information after consulting records in their office at home. She undertook certain calculations which she set forth on two sheets, filed together as Exhibit Int.-1. She recalled the day Peter came home - very upset - shaking his head and relating the information about Kelly Whiffin having "badmouthed" him in making accusations to Sian that Peter had "ripped him off". Peter did not want to speak with the appellant at that time so she agreed to telephone him and when he answered, she asked him, "What the hell happened today?" Kelly responded by remarking that working at APD was a "dead-end job" and that he was being ripped off and wanted the money owing to him. He stated he would come over to the Vandenbroeks' home to "sort out the mess". The next day - in the middle of the afternoon - in her driveway - she saw the appellant inside the Ford truck and his wife - Angela Whiffin - behind him in a car. The appellant informed her he was there to collect his money as he had back rent to pay and needed the funds immediately. Angela Vandenbroek stated she went inside the house into the APD office area, calculated the sums indicated on the adding machine tapes, and wrote him out a cheque. She had attempted to contact Peter at the Westlund office but he was not available. Once the calculation had been completed, she gave the sheet and the cheque to the appellant and he handed over the keys to the Ford truck and then left. Angela Vandenbroek recalled meeting with Angela Whiffin and having a discussion about the Whiffin's financial problems and remembers mentioning that she felt bad when a driver would receive a cheque for a small amount of money.
[13] In cross-examination by counsel for the appellant, Angela Vandenbroek estimated the document - Exhibit A-4 - had probably been prepared by her about two weeks prior to the accounting sheets comprising Exhibit Int.-1. She agreed she handed the appellant a grey folder containing several documents of which Exhibit A-4 is a copy. She is President of Mitlin and occasionally wrote cheques on the corporate account because Peter had a full-time job and sometimes his arthritis would flare up and cause difficulties for him. She utilized accounting software and entered amounts from the waybills and Peter also did some bookkeeping. The appellant had requested an accounting from her about four days before the "blow-up" resulting in the termination of the working relationship. She had been at the meeting in the pub at Surrey when the drivers and Peter had discussed the matter of increasing the time period on the pay holdback as well as the issue of reducing the percentage of revenue paid to the drivers by 5% on the basis there had to be more organization of the business and additional time and effort spent to increase the volume of deliveries. She cannot recall whether the appellant was present at the meeting. She denied ever having referred to herself - when speaking on the phone to Angela Whiffin - or otherwise, as being the appellant's "boss" and, while it is possible she referred to writing an "employee" a pay cheque, she does not recall ever using that term within the context of her conversation with the appellant's wife. The meeting with Angela Whiffin also involved discussing whether it would be possible for the Whiffins to obtain a loan to pay off some of their debts. On August 5, 1999 when she telephoned the appellant's home she was surprised when he answered and she was aware he was upset but assured him he was not being fired. APD maintained a running tally of revenue earned and, when the appellant informed her he wanted to be paid the balance due to him, she responded by telling him the money would be available when he came over to the office at the Vandenbroek residence. On August 6, 1999 the appellant came to the house and she was surprised when he turned over the keys to the Ford truck, leaving it in the driveway. The appellant stated he wanted to go to his bank and when Angela Vandenbroek told Angela Whiffin she was welcome to come over and visit any time she chose, Angela Whiffin replied, "you guys have already wasted enough of our time." One week later the truck was sold.
[14] In cross-examination by counsel for the respondent, Angela Vandenbroek stated she did not deduct amounts owing by the appellant - to APD - from the holdback cheque and had never fired him nor would it ever enter her mind to attempt to do so as she had never been authorized to deal with the formation or termination of relationships between APD and the drivers.
[15] Chris Leigh testified he resides in Surrey, British Columbia and for the past 8 years has been the owner/operator of a truck that is used within the context of the APD delivery business owned by Mitlin. He operates a 5-ton crane truck and - while he encourages customers to use his services - he relies on APD to provide the dispatch service and to carry out the related administration and record keeping. He recalled having spoke to Kelly Whiffin on many occasions about the circumstances and details relating to becoming an owner/operator of a vehicle in the context of the delivery service as dispatched and administered by APD. Leigh stated he has never regarded himself as an employee of Mitlin. In his view, the delivery industry is unique and he regards APD as an entity that works for him in the sense of providing a service that he needs and - in return - he pays them a certain percentage of the gross revenue produced by him and his truck. The business is known for its fluctuations in revenue and, while the rates are fairly consistent between companies, it is still a competitive business.
[16] In cross-examination by counsel for the appellant, Chris Leigh stated he had purchased his truck 5 years earlier from Mitlin and - while an amount based on 30% of revenue was common within the industry - he paid 25% of his gross earnings to APD. When the revenue sharing arrangement had been modified in May, 1999, Leigh stated all the drivers had been informed of the situation and understood the business was in the process of growing. Originally, Leigh had handled the dispatching from his own truck and he did not think any driver disagreed with paying an increased percentage to APD. Each driver was free to leave and - later - the former revenue split of 75%-25% was restored. During the course of several discussions between Leigh and Kelly Whiffin, the appellant had inquired about the costs of operating a truck, the implications of GST and other related matters. Leigh had encouraged him to become an owner/operator and was aware of Whiffin's financial problems and that Peter Vandenbroek had helped him out by paying him some money during the time he was working as a driver for Rick Clark.
[17] In cross-examination by counsel for the respondent, Chris Leigh stated he had to report in to the dispatcher at APD if he wanted to make any money. He refused trips if they were not appropriate for his truck or were otherwise not profitable. On occasion, he has suffered a loss with respect to certain loads carried and he attempts to increase his income by talking to potential customers and leaving them with a rate sheet and business card. He has had repair costs on his truck in amounts as high as $7,000.00 and he uses the large unit - capable of carrying up to 14,000 pounds - on weekends to transport hot tubs. His truck also has an attached crane with a 5,000 pound capacity and most of his client base involves moving pipe, crates, bundles and a variety of other larger items. Mitlin/APD has never had any concern about his other income generating activities which - in any event - are not the subject of any revenue sharing arrangement.
[18] Counsel for the appellant pointed out that, although the evidence disclosed the appellant's working relationship with APD commenced in early March, 1998 and terminated on August 3, 1999, the period covered in the Minister's decision was from August 2, 1998 to August 3, 1999. Counsel submitted there were different versions of events which created an issue arising from the credibility of witnesses but suggested that if the evidence adduced by the appellant was accepted, then it would require a finding that Kelly Whiffin had been employed by the intervenor - Mitlin - pursuant to a contract of service in accordance with the tests set forth in the relevant jurisprudence.
[19] Counsel for the respondent submitted the appellant had made choices throughout the course of the working relationship and that it was apparent Whiffin had been the beneficial owner of the Ford truck and was using it in the course of the delivery business to generate revenue. Counsel's view of the evidence was that - on balance - the various versions of events put forward by the appellant should not be accepted as he was motivated to create a scenario in which he could be seen as an employee during the relevant period so as to entitle him to employment insurance benefits and other entitlements which he was pursuing through the labour standards mechanism established by the provincial government. Counsel submitted that upon the Court finding the facts, the decision of the Minister would be seen as correct in holding that the appellant had not been employed - by the intervenor - pursuant to a contract of service.
[20] 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 and Risk of Loss
4. The integration test
[21] Prior to embarking on the required analysis, I want to point out that it will be necessary to comment on the different versions of events put forward by different witnesses as it will entail preferring the testimony of one or more witnesses over that of others. Only after choosing a version that is more probably correct than another - for stated reasons - can I then proceed to use the facts - as found - within the context of applying them to one or more of the above-named tests.
Control:
[22] The circumstances relevant to the issue of control - as related by the appellant - are much different from the situation disclosed by the testimony of Peter Vandenbroek, Angela Vandenbroek and Chris Leigh. The appellant - a repetitive whiner - by his own admission - attempted to create - as opposed to recalling - an atmosphere in the workplace in which he was constantly told what to do and where to go. There were at least two different dispatchers during the relevant period and the suggestion that one of them would have been sufficiently privy to the details of the purchase and subsequent financing of the Ford truck so as to take it upon himself to issue a so-called ultimatum that Whiffin comply with the terms of the particular afternoon dispatch or return the truck is not worthy of belief. It is apparent from the evidence of Chris Leigh that he had spoken - on many occasions - to the appellant concerning the business of owning and operating a truck within the structure utilized by APD in conjunction with the other eight or nine drivers. When a matter arose in the course of some domestic discord between the appellant and his wife, which created an inability to attend at the premises of an important customer of APD, Peter Vandenbroek attempted to work around the problem by suggesting Whiffin drive to the rear of the premises for purposes of making the deliveries. It was not Vandenbroek who had declared Whiffin persona non grata but rather the manager of the major client of APD who had sided with Angela Whiffin in implementing the ban so as to reduce the opportunity for personal interaction between Kelly Whiffin and a female member of the office staff who was having trouble understanding the full meaning of Angela Whiffin's edict to cease and desist in the pursuit of her fellow. The appellant admitted he used the Ford truck to visit his father and the inference he was otherwise forbidden to use the vehicle on weekends to generate revenue is one which I am not prepared to draw. There was no requirement that he attend at any particular place at a certain time but in order to generate revenue he had to be available to undertake certain deliveries. He decided to use the truck as a personal vehicle and drove it back and forth from his residence each working day. There was no reliable evidence upon which to base any finding that he was ever subject to any discipline or was in danger of being "fired". In the event he wanted to leave early, there were other drivers to handle the dispatched calls and two other trucks were capable of hauling the same type of load as his own Ford. When he planned to be absent for a day, he merely notified the dispatcher and it was noted on a calendar in the APD office. The appellant agreed it was never referred to as a "day off". On a slow day, if he was sitting in his truck waiting for a call, there were three or four other drivers doing the same thing and nothing was preventing any one of them from leaving for the day, except they were probably motivated to remain in the area so as to be available to handle a delivery if one were to be dispatched later in the afternoon. The method or routes taken in the course of undertaking the deliveries were not subject to instruction, supervision or monitoring. With regard to this particular test, the evidence supports the view the appellant was providing services in the context of being an independent contractor.
Tools:
[23] The main tool needed to perform the job was the Ford truck which the appellant purchased and began paying for at the rate of $500.00 per month, except during the months when he requested the deduction not be taken from his gross revenue because he was short of funds to meet his personal and family needs. The truck was registered and insured in the name of Mitlin but it was merely a bare trustee for the appellant and he clearly had the full beneficial ownership. He entered into the contract with the vendor - Santokh Sian - and the fact Peter Vandenbroek agreed to be the co-signor - in the sense of ensuring the payments were made to Sian - is not synonymous with ownership on the part of Mitlin. Whiffin also rented a two-way radio from APD and paid for the use of air time. Whatever other tools, equipment and materials were necessary to handle the deliveries appropriate to that type of truck were owned by Whiffin and he was able to make the necessary decisions with respect to repair, maintenance and purchase of accessories. There was a removable sign affixed to the Ford truck identifying it as being operated pursuant to the authority issued to Mitlin by the Motor Carrier Commission but there was nothing preventing the appellant from affixing his own sign in order to notify others that he was the actual owner of the vehicle. Initially, Vandenbroek arranged for the licensing and placement of adequate insurance coverage and he also disbursed the sum of $400.00 to equip the truck with proper tires and these amounts were later re-paid - for the most part - by means of deductions from Whiffin's gross earnings flowing from the deliveries. The case of Singh v. McRae (1971), 21 D.L.R. (3d) 634 stands for the proposition that the owner is the person who has the dominion and control over the motor vehicle - not necessarily the registered owner - within the meaning of subsection 70(1) of the Motor Vehicle Act of British Columbia imposing vicarious liability. Stroud's Judicial Dictionary, 2nd ed., Vol. 2, p. 1387 contains the following relevant definition:
"The owner or proprietor of a property is the person in whom (with his or her consent) it is for the time being beneficially vested and who has the occupation and control or the usufruct of it."
[24] The only way in which the appellant would be able to re-write history in order to suit his revisionist view of events was to categorize the purchase of the truck as a circumstance not of his choosing and one fraught with elements of misrepresentation, deceit, forgery and fraud. Initially, Kelly Whiffin stated in his testimony that the copy of the purchase agreement - Exhibit A-1 - was not the document he had signed because it was typed - as opposed to being hand-written - and it has misspelled his family name, something to which he - understandably - was consistently adamant about being written correctly. He also disagreed with the description of the model designation - Ford 450 - of the subject vehicle. Then, in cross-examination, counsel for the respondent produced a document - Exhibit R-1 - which was the original of Exhibit A-1 - previously labelled a forgery by Whiffin. He agreed the signature appearing on the original purchase agreement - Exhibit R-1 - was his but, notwithstanding that admission, continued to maintain his signature had not been placed - by him - on that particular document because he cannot recall there ever having been any text in the form of typing on the document he had signed for the purchase of the truck. He also denied having taken the purchase agreement to the vendor - Sian - to be signed so that the truck could then be registered, licensed and insured prior to it being used - by him - in the delivery business. Where the evidence of the appellant conflicts with the evidence of Peter Vandenbroek on the issue of the initial contact with Sian, subsequent negotiations, manner of execution of the agreement and related events, I prefer the testimony of Vandenbroek and reject the evidence of the appellant on the basis it is highly improbable, self-serving, inconsistent and probably completely untrue. As a result of the above findings of fact, the application of this test favours the status of independent contractor.
Chance of profit and risk of loss:
[25] It is apparent there was the opportunity to increase revenue by handling the deliveries - as dispatched - and by seeking other customers within the operating area serviced by APD and out in Abbotsford where the appellant lived. A nonchalant attitude, diminished appreciation of a reasonable work ethic or outright whining to the dispatcher is probably not conducive to increased production of revenue. Whether deserved or not, banishment from the premises of a major customer of APD - a place where he had previously made sufficient deliveries to have attracted the attention of a female office employee - did not assist in the production of revenue from that source as he was entitled to 75% - and later - 70% of the gross revenue flowing from each delivery. The appellant used the truck as a personal vehicle to drive back and forth to his home in Abbotsford and did not attempt to use it to generate other revenue. When he was injured in the motor vehicle accident, the sum of $5,000.00 paid as damages for repair of the vehicle, loss of income and some undetermined amount for pain and suffering was paid directly to the appellant on the basis he had lost revenue as an owner/operator of his truck when compared with that of others working at APD during the same period. The appellant did not dispute that he was responsible for all expenses associated with the operation of the truck. A perusal of Exhibit A-4 - accounting sheets - indicates that while the appellant had the sum of $500.00 deducted from his earnings in June, 1999 and - on July 1, 1999 and July 30, 1999 - the further amounts of $500.00 and $250.00, respectively, representing truck payments to Sian. The Appellant had previously been in arrears - overall - in an accounting sense as between himself and APD as a consequence of APD having paid insurance premiums on the vehicle together with other miscellaneous items that were his responsibility. Sian had not received any truck payments in June or July of 1999 but in the past had received payments in the sum of $1,000.00 when there had been the need for a catch-up, probably due to those months when the appellant had requested Peter Vandenbroek "go easy on him" and not deduct the full amount of the truck payment, insurance premium or other expenses from his entitlement because he needed the money to pay household bills. Between March 1, 1998 and December 1, 1998, Vandenbroek - on behalf of Mitlin - provided Sian with 10 post-dated cheques each in the sum of $500.00 for a total of $5,000.00. During that same period, the appellant had a total of $3,800.00 deducted from his share of the gross delivery revenue in a series of amounts ranging from $250.00 to $300.00 and $500.00 as shown on the accounting sheet - Exhibit A-4. The sum of $168.00 was deducted each month for the insurance premium on the truck but the total premium paid by APD appears to have been in the sum of $3,326.48 while the appellant paid - by way of deduction from revenue - only the amount of $1,512.00 leaving a shortfall in that category. The payment - to Sian - of proceeds from the sale of the abandoned truck - $2,500.00 - extinguished the debt owing on the balance of the purchase price for which the appellant had direct liability as the named purchaser in the agreement. Taking into account the relevant factors, the evidence favours a finding the appellant was providing services in his capacity as an independent contractor.
Integration:
[26] 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."
[27] There is no question that the intake process, administration and business structure was that of APD - as a division of Mitlin - and the customers dealt with APD on that basis. However, the evidence supports the view within the courier/delivery industry that the common procedure is to provide for a division of the revenue flowing from the total amount generated by the final delivery of the package to its intended recipient. Further, there is an appreciation that certain components of service - within the context of total transaction - have been provided by different individuals and/or entities and these participants are entitled to a share of the revenue but must also bear some costs associated with the production of that income. In the within appeal, the appellant provided - or arranged to obtain - the vehicle and communication equipment needed to generate income. He had a degree of financial risk and responsibility for managing his expenditures against the amount of revenue being produced. He most definitely had every opportunity to profit from appropriate and prudent management of his business in the same way as the other drivers - generally - or Chris Leigh - specifically - whose testimony provided a view of the working life of an owner/operator within the courier/delivery industry. The appellant - again - attempted to portray himself as an innocent, never having been other than an employee in his previous working life as a shipper and receiver, warehouseman and driver, but the evidence of Chris Leigh was that he spoke to Whiffin on several occasions in which many aspects of truck ownership and operation within the APD structure had been canvassed. One must keep in mind, the appellant did not just stumble into the APD office one day - seeking directions - and end up a virtual hostage forced to drive a truck for the next 18 months. For more than two months in 1998, he had driven a truck for Rick Clark - an owner/operator with APD - and when Clark left with his trucks, Whiffin proceeded to fully investigate the opportunity provided by Peter Vandenbroek and - in so doing - understood the chances for increased revenue and the pitfalls associated with becoming an owner/operator in a business arrangement with APD. He was dissatisfied with the small amount of money he had been able to earn while working for Clark. In my recent decision in the case of Flash Courier Services Inc. v. Canada (M.N.R.), [2000] T.C.J. No. 235, I considered the situation involving an owner/operator of a truck used in the courier business. Therein, I considered other cases based on similar fact situations such as Mayne Nickless Transport Inc. v. Canada (M.N.R.), [1999] T.C.J. No. 132, a decision of Porter, D.J.T.C.C. released February 26, 1999 in which the drivers were held to be independent contractors. In Flash Courier, supra, concerning the matter of integration, I commented - at page 16 - as follows:
"In the within appeals, the facts surrounding the working relationship of the invervenor support the view he was in the transportation business and functioned as a courier by means of operating his own vehicle which had certain specifications and attributes which permitted him to increase his revenue. Flash was the larger entity that dealt directly with the customer in order to receive the calls, issue the subsequent billing and fulfil all other administrative requirements. The intervenor and Flash together with the other 50-70 drivers and/or 10-15 bicycle couriers performed the tasks required of them in order to generate revenue which was then divided in accordance with an agreed-upon formula as stated in their individual contracts. There is nothing preventing wheels within a larger mechanism from being legitimate stand-alone entities even though in order to function profitably they must mesh with the greater machine. In any sophisticated economy that will be the norm. Near total dependence on one client may be - at times - foolhardy but it will not, without more, transform someone into an employee of the one writing the cheques in return for services."
[28] It is worth repeating at this point that a significant portion of the within appeal turns on findings of credibility which is not usually the case in these matters. Where the evidence of the appellant and/or his wife Angela Whiffin is in conflict concerning details surrounding the telephone conversation on the evening of August 5, 1999 and subsequent discussions revolving around the accounting and turning over of the keys to the truck parked in the Vandenbroek driveway, I prefer the version of events as related in the testimony of Angela Vandenbroek. The entire thrust of the appellant's case was to portray himself as an employee so that he could take advantage of employment insurance benefits and whatever else might flow from that status if he could sell that proposition to the appropriate tribunals involved in making decisions pursuant to provincial labour legislation. In the within appeal, there was no written contract between APD and the appellant or between APD and any of the owner/operators but they all regarded themselves as independent contractors. The statement by the appellant that he was one of three persons operating trucks supposedly owned by Mitlin is not borne out by the rest of the evidence. His evidence that he requested a Record of Employment from Angela Vandenbroek is not believable as it was only later when he realized certain indicia had to be present if he were to be successful in the process of establishing - initially in pursuance of his claim before the labour tribunal - that he had been an employee of APD. His testimony concerning the significant factors of control, ownership of tools, matters affecting his remuneration and his role within the overall business structure and operations of the APD delivery business was - for the most part - not credible.
[29] It is trite that parties cannot merely slap a label onto their working relationship and have it stick when it does not accord with the actual nuts and bolts of their daily activities within that work environment. In the case of Razzouk v. Canada (M.N.R.), [1996] T.C.J. No. 160 Archambault T.C.J. heard the appeal of the owner of a body shop who had hired an apprentice who agreed to operate as an independent contractor and pay his own taxes. At p. 2 of his judgment Judge Archambault stated:
"It is very clear in law that the nature of a contract cannot be determined only by reference to the label used by the parties. The nature of the contract has to be determined on the basis of the true nature of the relationship existing between the parties. In other words, a determination must be made by taking into account the true substance of the relationship and not on its form."
[30] Taking into account all of the evidence with a view of the overall scheme of operations and in applying the relevant jurisprudence to the specific findings of fact, I conclude the decision of the Minister was correct and the appellant has not demonstrated that he was engaged in insurable employment with the intervenor during the relevant period.
[31] The appeal is hereby dismissed.
Signed at Sidney, British Columbia, this 19th day of February 2001.
"D.W. Rowe"
D.J.T.C.C.
COURT FILE NO.: 2000-2975(EI)
STYLE OF CAUSE: Kelly Whiffin and M.N.R. and A & P Delivery, a Division of Mitlin
Enterprises Ltd.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 5, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.W. Rowe
DATE OF JUDGMENT: February 19, 2001
APPEARANCES:
Counsel for the Appellant: Christopher D.R. Maddock
Counsel for the Respondent: Kristy Foreman Gear
Agent for the Intervenor: Peter Vandenbroek
COUNSEL OF RECORD:
For the Appellant:
Name: Christopher D.R. Maddock
Firm: Abbotsford Community Legal Services
Abbotsford, British Columbia
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
2000-2975(EI)
BETWEEN:
KELLY WHIFFIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
A & P DELIVERY, A DIVISION OF
MITLIN ENTERPRISES LTD.,
Intervenor.
Appeal heard on December 5, 2000, at Vancouver, British Columbia, by
the Honourable Deputy Judge D.W. Rowe
Appearances
Counsel for the Appellant: Christopher D.R. Maddock
Counsel for the Respondent: Kristy Foreman Gear
Agent for the Intervenor: Peter Vandenbroek
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 19th day of February 2001.
|
"D.W. Rowe" |
D.J.T.C.C.