Date: 19971002
Docket: 97-19-UI
BETWEEN:
ROD TURPIN CONSULTING LTD.
o/a TUNDRA SITE SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
DAN MONAGHAN,
Intervenor.
Reasons for Judgment
Teskey, J.T.C.C.
[1] The Appellant (the "payor") appeals from a determination by the Minister of National Revenue (the "Minister") that for the period November 11, 1995 to December 16, 1995, Dan Monaghan was in insurable employment with the Appellant.
[2] The Intervenor did not attend at the hearing. The only oral evidence at hearing was that of Arthur Roderick Turpin ("Turpin") the sole officer, director and shareholder of Rod Turpin Consulting Ltd.
[3] When the Respondent was making the determination, she relied upon facts which were reproduced in paragraph 8 of the Reply to the Notice of Appeal.
[4] The testimony of Turpin substantially confirmed all the facts assumed by the Minister in making her determination, namely:
a) The payor is in the business of leasing and providing technical overload services to its clients and, in respect of this, the Payor places workers capable of providing such services with its clients;
b) the Worker is a journeyman electrician;
c) the Payor hired the Worker to perform services for Cominco;
d) Cominco is a client of the Payor;
e) the Worker performed his services for Cominco at their place of business which was a site known as Polaris Mines;
f) in respect of his services to Cominco, the Worker was paid by the Payor at a rate of $28 per hour for actual hours worked and $24 per hour for travelling time;
g) the Worker was required to submit a time sheet to the Payor in order to receive payment;
h) the Worker was paid by the Payor weekly by cheque;
i) the Worker was supervised in the performance of his duties by a foreman from Cominco who oversaw the Worker's work on a full-time basis;
j) the Worker's work was inspected and reviewed by Cominco;
k) the personal service of the Worker was required;
l) the Worker could not hire any helpers;
m) the Worker was not free to choose which jobs he would work on as the foreman of the crew assigned each crew members their tasks;
n) the Worker repaired incorrectly done work during normal working hours;
o) the Worker was required to use both power and hand tools to do his job;
p) other than hand tools that were supplied by the Worker, Cominco supplied the power tools, supplies and materials and other equipment required by the Worker to perform his duties;
q) the contract between the Payor and the Worker stated, inter alia:
(i) that the Worker agrees to provide its services for clients of the Payor namely Cominco Ltd.-Polaris Mines and to provide such services as may be directed by the aforementioned clients; and
(ii) the Worker covenants and agrees that he will not without prior written consent of the Payor until a period of three months has elapsed from the date of the termination of the contract, either directly or indirectly:
a) become an employee of the client;
b) enter into contract with the client without the written consent of the Payor;
c) perform any work for or on behalf of the client without all compensation therefore being given to the Payor; and
d) enter in any agreement or otherwise with a business competing with the Payor to perform any work, services or other benefits for the client.
[5] The slight variations to these assumed facts are as follows:
a) this was only part of the Appellant's business.
g) the workers were paid for 12 hours each day eventhough work could not be performed due to weather conditions.
i) the supervisor was a worker supplied to Cominco by the Appellant.
k) the written contract is silent on this fact and the assumption has not been displaced.
[6] The contract between the Appellant and Cominco was verbal. Cominco would contact the Appellant and say we need so many journeymen electricians at the Polaris Mines site starting on such and such a date for approximately such and such a period. The Appellant would find the necessary journeymen electricians and arrange to get them to the Polaris Mines site.
[7] The Appellant's responsibility to Cominco was only to the extent that the personnel it provided were qualified to do the work that was to be performed.
Analysis
[8] Paragraph 12(g) of the Unemployment Insurance Act Regulations during the period in question reads:
12. Employment in any of the following employments, unless it is excepted employment under subsection 3(2) of the Act or excepted from insurable employment by any other provision of these Regulations, is included in insurable employment:
...
g) employment of a person who is placed in that employment by a placement or employment agency to perform services for and under the direction and control of a client of the agency where that person is remunerated by the agency for the performance of such services.
[9] The Respondent's position is that the Appellant by its actions was acting as a placement or employment agency within the provisions of Regulation 12(g) and relies upon the decision of the Federal Court of Appeal in Sheridan v. M.N.R., released March 21, 1985.
[10] The Appellant argues that it is not a placement agency but to look at it as a general contractor. This I cannot accept. General contractors usually by the terms of their contracts with clients are responsible to the client to construct the project contracted to be constructed in a good and workmanlike manner. Herein, the only responsibility the Appellant had to Cominco was to provide qualified workers as specified by Cominco.
[11] The Appellant was acting as a placement agency in respect of this worker. The Appellant was asked to provide a journeyman electrician which it did. It paid the electrician and charged the wages to Cominco together with a fee for services.
[12] The appeal is dismissed and the Minister's determination is affirmed.
"Gordon Teskey"
J.T.C.C.