2002-721(EI)
BETWEEN:
CONRAD L. HYSWICK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeal of Conrad L. Hyswick (2002-720(CPP)) on August 14, 2002 at Vancouver, British Columbia, by
the Honourable Deputy Judge D.W. Rowe
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Johanna Russell
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 4th day of October 2002.
|
"D.W. Rowe" |
D.J.T.C.C.
2002-720(CPP)
BETWEEN:
CONRAD L. HYSWICK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeal of Conrad L. Hyswick (2002-721(EI)) on August 14, 2002 at Vancouver, British Columbia, by
the Honourable Deputy Judge D.W. Rowe
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Johanna Russell
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 4th day of October 2002.
|
"D.W. Rowe" |
D.J.T.C.C.
Date: 20021004
Dockets: 2002-721(EI)
2002-720(CPP)
BETWEEN:
CONRAD L. HYSWICK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.T.C.C.
[1] The appellant appeals from decisions of the Minister of National Revenue - (the "Minister") both dated November 20, 2001 - wherein the Minister confirmed assessments issued against the City of Abbotsford - a municipality in British Columbia - for employment insurance premiums and Canada Pension Plan contributions in respect of certain named workers - including the appellant - for the 1997 and 1998 taxation years. The assessments - issued pursuant to the Employment Insurance Act (the "Act") and the Canada Pension Plan (the "Plan"), respectively - were based on a finding that the appellant had been employed by the City of Abbotsford (City) pursuant to a contract of service.
[2] At the outset, the appellant was permitted to file various documents - as Exhibits A-1 to A-19, inclusive - on the basis he would refer to them directly at some point during his testimony and/or they were otherwise relevant to the appeals.
[3] Conrad Lee Hyswick testified he resides in Abbotsford, B.C. and during 1997 and 1998 operated his own home-based business which he started in 1996. He was working in conjunction with an individual who owned a franchise for Housemaster, a home-inspection business. Pursuant to an agreement - Exhibit A-1 - dated December 18, 1996 - between Hyswick, the City, and the Abbotsford Police Board (Police Board) - the appellant agreed to provide his services as a "By-Law Enforcement/Police Liaison" to the City and the Police Board during the period from January 1, 1997 to December 31, 1999. The appellant stated the end date was inserted in error as the parties had agreed the contract would cover a period of two years and should have terminated on December 31, 1998. Pursuant to paragraph 4 of the agreement, Hyswick could control his own hours - including evenings and Saturdays - according to service requirements as agreed upon between the parties. The appellant's duties as a Bylaw Enforcement Officer were set forth in paragraph 3 of the agreement including responsibility for enforcing all municipal bylaws, investigation of complaints and follow-up and, if necessary, gathering evidence and participating in the process of laying charges against offenders, appearing in court to give evidence and otherwise assisting in the prosecution of persons who had violated municipal bylaws. Hyswick testified he paid his wife a salary of $1,000 per month to assist him in carrying on the home-inspection referral business as well as for performing research in connection with his duties for the City by checking for zoning infractions or lack of a proper building permit in respect of a particular property. The appellant stated he devoted most Mondays and Tuesdays to the business relationship with Housemaster and worked for the City Wednesday through Saturday, inclusive. He used his own cell phone in connection with both activities. He used his own vehicle for Housemaster business and, even though the City supplied him with a vehicle to be used in connection with his enforcement duties, there were instances when he chose to use his personal vehicle so as to be less obtrusive in the course of conducting an investigation. If he used his own vehicle, he absorbed the cost. The City installed a telephone mechanism that forwarded calls to his cell phone. Hyswick stated he had worked as a Bylaw Enforcement Officer for the District of Matsqui which was amalgamated with the City of Abbotsford in 1999. City council appointed the appellant as a Bylaw Enforcement Officer in accordance with the usual procedure for swearing in a person possessing powers of investigation and enforcement. The appellant stated he invoiced the City for his services which were charged out at the hourly rate of $26.61 - an amount resulting from adding 10% - in lieu of all benefits - to the ordinary rate of $24.19 payable to an Enforcement Officer, as set out at paragraph 7 of the contract (Exhibit A-1). Hyswick added GST to the billable amount and referred to a typical invoice - Exhibit A-19 - issued to the City for services rendered during a certain period. Hyswick had registered his home-based business for purposes of the Goods and Services Tax (GST) and considered himself to have been a self-employed individual not only in connection with his home-inspection referral activity but also in respect of his contractual arrangement with the City as stated at paragraph 6 of the contract between the parties. In Hyswick's view, said paragraph - together with paragraphs 8 and 9 - made it abundantly clear he was not an employee of the City and was not entitled to benefit from any superannuation plan nor have any right to severance pay other than for monies actually earned on a fee-for-services basis which remained unpaid at the time of termination. Either party could terminate the agreement upon 45 days written notice. Hyswick explained that it was sometimes necessary to respond to a situation after normal working hours or to liaise with the City Police and he did so because - under the agreement - he was able to control his own hours depending on service requirements. As an Enforcement Officer, he dealt with complaints concerning matters dealing with private property and the City Police had jurisdiction over situations occurring on public property. The appellant stated the parties to the contract had agreed upon the necessity for flexibility in working hours because - on many occasions - contact with complainants was undertaken after regular working hours at City Hall. The appellant stated he would often meet with property owners - following an appointment - because many of them did not reside in Abbotsford. Pursuant to paragraph 5 of the agreement, he was responsible and accountable to the Manager of Inspection Services (Manager) or his designate - both employees of the City - and was required to follow directions given by said Manager for the purpose of carrying out his responsibilities set forth in the contract. In the event a complaint proceeded to the laying of charges and instituting the process required to bring a matter to court, the Manager became involved but of the 700 complaints a year handled by Hyswick, only a small fraction ever reached that point and even less required attendance in court for the purpose of testifying in a prosecution. When carrying on his home-inspection referral business, Hyswick stated he billed the sum of $62.50 together with GST for each contract obtained whereby Housemaster could undertake a home inspection which would be carried out by the owner of that franchise. The contract - Exhibit A-1 - expired on the true date of December 31, 1998 and was not renewed by the City. By letter dated March 12, 1999 - Exhibit A-2 - the City notified the appellant that, although it had been using his services on a month-to-month basis since January 1, 1999, said services would no longer be required after March 31, 1999. The appellant received a letter - Exhibit A-3 - dated October 1, 1999, from Revenue Canada - predecessor of Canada Customs and Revenue Agency (CCRA) - advising that his income tax returns for the taxation years 1997 and 1998 were under review. By letter - Exhibit A-4 - dated November 10, 1999, the appellant replied to CCRA explaining that he had been an independent contractor while providing enforcement services to the City. During the relevant period, the appellant stated he could arrange for a substitute to perform his duties provided that his replacement was qualified and possessed the appropriate authority to enforce City bylaws. In that event, the City would be billed directly by the substitute worker and would issue a cheque. On July 9, 2001, the appellant returned a completed Questionnaire - to CCRA - concerning the circumstances of his working relationship with the City and details of his business relationship in respect of the home-inspection referral activity he had been conducting at the same time. On November 20, 2001, the appellant received a decision - Exhibit A-12 - from the Minister confirming a previous assessment - issued against the City - on the basis he had been an employee working pursuant to a contract of service. Additional details concerning the reasons for having issued said decision were sent to the appellant in a letter - Exhibit A-13 - dated December 11, 2001. The appellant filed a Notice of Appeal - Exhibit A-14 - and proceeded to answer the questions posed in Pamphlet rc4410 - Exhibit A-15 - published by CCRA - concerning the analysis to be undertaken in order to assist people in arriving at a conclusion concerning the true characterization of the relevant working relationship. The appellant stated he had not been a union member nor were any hours of work pre-determined within any particular period. In that sense, his remuneration was not ascertainable and became a known quantity only at the point when he submitted an invoice for services rendered - every two weeks - to the City. The City had established a work order number so the accounts payable department could pay his invoices and summaries of said invoices for the years 1997 and 1998, respectively, were filed as Exhibit A-16 and Exhibit A-17. Hyswick estimated that 30% of all files opened by him in the course of his duties were generated as a result of research undertaken by himself and/or his wife or from personal observation within the municipality of Abbotsford. The City provided access to computers and a database, office equipment and supplies, and the appellant was reimbursed for any items he purchased in order to carry out his tasks. The appellant stated that since there was no guaranteed revenue flowing from his contract with the City, the generation of income depended on his skill and effective management of time. Further, he incurred certain expenses from the operation of his in-home office - equipped with computers, scanner, printer, fax and telephone - including the monthly salary paid to his wife. A statement of invoices - plus GST - billed to the City in 1997 and 1998 and to Housemaster - in 1998 - was filed as Exhibit A-18. Hyswick stated that work space had been provided to him at City Hall but it was shared with other people. The office was equipped with a computer and an answering machine capable of forwarding calls to his cell phone. Because others were providing the same service, the appellant stated his own contribution was not vital to the enforcement department which - itself - constituted only a small portion of the overall operations of the City.
[4] In cross-examination by counsel for the respondent, Conrad Hyswick stated he had been working - since 1990 - as a Bylaw Enforcement Officer for the District of Matsqui and had always provided his services of the basis of having been an independent contractor. Following amalgamation with the municipality of Abbotsford, he performed the same task pursuant to the terms of the contract - Exhibit A-1 - and then continued on a month-to-month basis until March 31, 1999. He explained that the Manager of Inspection Services was in charge of five departments including bylaw enforcement. The appellant was referred to his business card - Exhibit R-1 - upon which he was identified as C.L. (Kelly) Hyswick, By-Law Enforcement/Police Liaison and the City logo was prominently displayed together with the address, phone and fax numbers at City Hall. The appellant stated his referral activity with Homemaster was carried on during 1997 but revenue therefrom was produced only during 1998. He earned the sum of $4,176.74 from this source - as shown on Exhibit A-18 - and said amount constituted the entire revenue earned from this particular activity. His business card for Housemaster was filed as Exhibit R-2. The appellant agreed that 100% of his reported business income during the 1997 taxation year was derived from his work for the City. During the relevant period, four other individuals were involved in bylaw enforcement for the City; one was assigned to parking compliance, another performed secondary suite inspections and two individuals performed work similar to the appellant but did so as employees of the City and were remunerated in accordance with the union rate of $24.19 per hour. Hyswick's rate of pay was $26.61 per hour - as set forth in his contract with the City - and he stated the City had chosen to characterize the 10% increase to the standard union hourly rate as being in lieu of benefits. The appellant agreed the office at City Hall was available for general use by all bylaw enforcement personnel. A clerk - with a variety of duties to perform - assisted the Bylaw Enforcement Officers in carrying out their tasks. The appellant stated he left his cell phone turned on until 8:00 p.m. or 9:00 p.m. and would respond to a call immediately if it were important or if the complainant or alleged offender was about to leave Abbotsford for a holiday or otherwise for a significant period. The appellant estimated that he worked about 30 hours per week - on average - during the relevant period but the precise hours were recorded in the sheets - Exhibit A-16 and Exhibit A-17. Hyswick stated that if he had to write a report he would note details, enter a case file number taken from a log at City Hall and City staff would enter it into the database. Sometimes, he would perform his work by utilizing forms and documents prepared by the City. If a complaint had not been resolved and the party under investigation refused to comply with the bylaw, then the file would receive the attention of the Manager and/or counsel retained by the City. In this event, the appellant stated he continued to be involved in the process since he was required to sign affidavits and to assist in the furtherance of any prosecution. Hyswick acknowledged that he used a car provided by the City - about 50% of the time - and could have used it on a full-time basis but preferred to use his own vehicle while carrying out his duties since he had already obtained insurance coverage for business use. He attended one conference concerning bylaw enforcement but had considered himself to be ineligible to attend conferences of municipal workers because he was not an employee of the City. Hyswick stated he had been shown how to use the City database and had been assigned an authorization code. He carried photo identification bearing his signature - and that of a representative of the City Police - identifying him as a Bylaw Enforcement Officer for the City of Abbotsford. The appellant had been issued a pass card and was provided with the alarm deactivation code so he could enter City Hall after regular business hours. In the event he was required to purchase film or video cassettes for use in the course of an investigation or for presentation in court - perhaps two or three times a year - he was reimbursed. Hyswick stated City officials were not aware that his wife assisted him in the performance of his duties and the monthly salary - in the sum of $1,000 - paid to her was not attributed to work done either in relation to bylaw enforcement or to the Housemaster activity. The appellant explained that he was often able to obtain compliance with a particular bylaw merely by speaking to the owner or occupier of the property in question. Other times, a letter would be issued or perhaps a warning ticket - from a numbered book provided by the City - would be written.
[5] The respondent did not call any witnesses.
[6] The appellant submitted he was an independent contractor carrying on his own business which he viewed as akin to performing a public relations service to the City rather than merely providing services concerned with strict bylaw enforcement. In the appellant's view, the contract with the City specifically provided that he was not to be considered an employee and the parties had acted throughout the working relationship in a manner consistent with that agreement which should be respected as being determinative of his working status.
[7] Counsel for the respondent submitted the appellant was performing a specific function flowing from bylaws of the City and/or from provincial legislation delegating certain powers to municipalities. Counsel pointed out that all necessary tools were provided by the City and any extra expenses were reimbursed. As such, there was no room for profit and the appellant could earn additional revenue only by working extra hours at the same rate. Counsel submitted the evidence disclosed the appellant was integrated into the business infrastructure of the City by having access to the database, office space and related equipment, and had the ability to enter City Hall after regular hours; although he enjoyed some flexibility in terms of working hours, that was not unusual in the modern labour market. Further, counsel submitted that although the appellant could work - to some extent - on a flexible basis and used his own vehicle approximately 50% of the time, that did not transform him into an independent contractor carrying on business on his own account.
[8] The Supreme Court of Canada - in a recent decision - 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] S.C.C. 59; 274 N.R. 366 - (Sagaz) dealt with a case of vicarious liability and in the course of examining a variety of relevant issues, the Court was also required to consider what constitutes an independent contractor. The judgment of the Court was delivered by Major, J. who reviewed the development of the jurisprudence in the context of the significance of the difference between an employee and an independent contractor as it affected the issue of vicarious liability. After referring to the reasons of MacGuigan, J.A. in Wiebe Door Services Ltd. v. M.N.R., [1986] 2 C.T.C. 200 and the reference therein to the organization test of Lord Denning - and to the synthesis of Cooke, J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 - Major, J. at paragraphs 45 to 48, inclusive, of his judgment stated:
Finally, there is a test that has emerged that relates to the enterprise itself. Flannigan, ... ("Enterprise control: The servant-independent contractor distinction" (1987), 37 U.T.L.J. 25, at p. 29) sets out the "enterprise test" at p. 30 which provides that the employer should be vicariously liable because (1) he controls the activities of the worker; (2) he is in a position to reduce the risk of loss; (3) he benefits from the activities of the worker; (4) the true cost of a product or service ought to be borne by the enterprise offering it. According to Flannigan, each justification deals with regulating the risk-taking of the employer and, as such, control is always the critical element because the ability to control the enterprise is what enables the employer to take risks. An "enterprise risk test" also emerged in La Forest J.'s dissent on cross-appeal in London Drugs where he stated at p. 339 that "[v]icarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents".
In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, ... ([1952] 1 The Times L.R. 101) that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations..." (p. 416) Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, ...(Vicarious Liability in the Law of Torts. London: Butterworths, 1967) at p. 38, that what must always occur is a search for the total relationship of the parties:
[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose... The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.
Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.
[9] I will examine the facts in relation to the indicia set forth in the judgment of Major J. in Sagaz.
Level of control:
[10] The appellant was able to control his own hours according to service requirements as agreed by the parties to the contract. He was not monitored or supervised in the performance of his daily duties and could generate files on his own initiative using his own resources. However, he was responsible and accountable to the Manager of Inspection Services or his designate and was required to follow any directions given by said Manager for the purposes of carrying out his duties pursuant to the written agreement. Further, the appellant had to obtain permission from the Manager in order to proceed with the laying of charges and thereafter was required to provide such assistance as the Manager and/or counsel required in furtherance of any prosecution. Certain forms had to be used and the opening of a file - in connection with an investigation - had to be logged into the City database.
Provision of equipment and/or helpers
[11] The City provided a vehicle for the appellant's use. He made a personal choice to use his own vehicle - about 50% of the time - and was not reimbursed for any expense. He had his own cell phone which was also used for purposes of his business activity with Housemaster. The telephone answering system at City Hall had been specifically programmed to forward calls to his cell phone. All necessary documents and forms were provided by the City and he had access to the computers and database into which his own investigation and compliance files were logged. He was provided with an office at City Hall - shared with other enforcement officials - and had the use of all related equipment and supplies. The appellant paid his wife a salary of $1,000 per month to assist him in the course of his enforcement duties for the City and also in relation to the home-inspection referral business. There was no apportionment of salary between these two tasks. The City had not required the appellant to provide any helpers and officials were not aware of the arrangement between the appellant and his wife. The appellant was an officially designated Bylaw Enforcement Officer for the City and anyone assisting him or substituting for him - in order to provide the enforcement service - had to be similarly qualified by City council, probably in conjunction with the Police Board. There are many occasions when end users of a service are not aware of the internal policy of the service provider with respect to the identity or number of workers involved in the overall performance of the requisite tasks - nor should they be - but an individual cannot transform himself into an entrepreneur merely by engaging in the legitimate practice of income-splitting with a spouse for purposes of reporting income pursuant to the Income Tax Act. The appellant had access to secretarial assistance at City Hall and chose to perform some of the research and issue correspondence from his own in-home office utilizing the skills of his wife.
Degree of financial risk and responsibility for investment and management
[12] The appellant did not incur any financial risk in the conduct of his work for the City. He was reimbursed for expenses except for those associated with his own personal choices such as the cost of a cell phone, use of his personal vehicle or the salary to his wife. He was not required to manage any workers nor was he required to make any capital investment in order to be in a position to provide the enforcement service. The City infrastructure - including the equipment and office staff - was adequate for the purpose of the functions carried out by Hyswick in accordance with his mandate as an authorized City official.
Opportunity for profit in the performance of tasks
[13] The appellant testified he was able to generate about 30% of his overall income by using his own initiative to discover matters within the municipality requiring enforcement action of some sort in order to obtain compliance with the relevant bylaws. Hyswick preferred to rely on his own modus operandi which was primarily based on a spirit of cooperation and education of the potential offender as to the precise nature of the bylaws rather than proceeding prematurely to institute strict enforcement procedures. Pursuant to the agreement, he was paid at an hourly rate of $26.61 which had been arrived at by taking the union rate for his particular enforcement function and adding 10% because he had waived any entitlement to benefits available to other City workers. An opportunity for profit may have been present had he agreed to accept a flat rate for all enforcement activities - within a specified period - and then managed his time and efforts in such a way that he could devote more hours to developing and carrying on his home-inspection referral business. In the within appeals, if he worked additional hours, he billed them at the agreed-upon rate. According to a spreadsheet forming part of Exhibit A18, his income from the City was relatively steady during 1998. During the first quarter, he earned $8,994.19, followed by the sums of $10,258.17, $11,468.93, and $12,706.28 for the next three quarters, respectively.
[14] The appellant had been a Bylaw Enforcement Officer - since 1990 - when he began working for the District of Matsqui. Later, he continued with the City and had never been considered by either municipality as other than an independent contractor. He relied on his agreement with the City - clearly stating that to be the case - as being contractually capable of determining his working status. In the case of Minister of National Revenue v. Emily Standing, 147 N.R. 238, Stone, J.A. at pages 239-240 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 ...
[15] The appellant relied on the decision of Judge Rip, Tax Court of Canada, in the case of Family Services Perth-Huron v. Canada (Minister of National Revenue - M.N.R.), [2000] T.C.J. No. 2 in which special service providers were found to be independent contractors while carrying out their work. In that case, the appellant non-profit corporation acted as an agency in providing a variety of services including marriage counselling, credit and debt management, in-home support services, respite services, programs for seniors and services for children with disabilities. The agency was funded from several sources including donations, fees for services and agreements with three levels of government. In that case, a service provider applied to the agency and was placed on a list. Then, the agency arranged a meeting between a family in need of service and a provider. Only if the family and the putative provider agreed to form a working relationship was there any future administration undertaken by the agency co-ordinator who would arrange for a psychologist or social worker to prepare a program for the client that was to be followed by the provider in servicing the client. The providers were paid a fixed rate per hour and had to maintain time sheets and travel expenses. They had to maintain records and submit reports and a job description was attached to each contract. In arriving at the conclusion the particular worker was not an employee of the agency, Judge Rip found there had been minimal control exercised, although the worker had been required to attend training sessions and to prepare reports on the progress of her clients. However, the worker had the freedom to accept or reject working with a particular family and was free to exercise his or her own discretion and judgment when providing services to the families. In Perth-Huron the agency had no tools and provided no office within its own facility to the provider in order to perform any of his or her functions. The work was done in the home of the client. In Perth-Huron, Judge Rip found the provider's profit was determined by the number of hours worked with a client and the number of clients a provider wished to serve. He also found that the provider could elect whether or not to purchase supplies and tools for any recipient of the service, thereby diminishing personal earnings. The provider was paid only for the hours he or she worked.
[16] In the case of Saskatchewan Deaf and Hard of Hearing Services Inc. v. Canada (Minister of National Revenue - M.N.R.), [2001] T.C.J. No. 38, Judge Porter, Tax Court of Canada held that interpreters working off a roster system were not employees of the organization but were independent contractors. In that case, if the organization received a request for services, it would turn to its list of qualified interpreters and proceed to contact someone. An interpreter, once contacted, had the right to accept or refuse the assignment and would then make his or her own arrangements with the recipient of the service. Depending on their level of experience, they were paid at an hourly rate by the organization and the interpreter would submit an invoice at the end of the month showing the number of hours worked. Judge Porter also held that the appellant in that case was in the business of providing many different services to its consumer group of which interpretation services were only one. Judge Porter also found the workers considered themselves as professionals - able to choose whether or not to work for clients - and held that the relevant worker/interpreter was not "enveloped into the business of the Appellant, but was retained as an outsider to provide services to their clientele. That is the distinction" (see paragraph 35).
[17] As stated by Major, J. in Sagaz, supra, in paragraph 47 of his judgment:
...The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account...
[18] Due to rapid change brought about mainly by technological advances in communication and utilization of data, one should be alert to new methods of delivering products and services. The traditional notion of working - at the same plant, mill, mine or public service cubicle for 35 years - is rapidly disappearing. Stability in the workplace in the past decade is almost laughable when shares in giant corporations - once heralded as dazzling darlings of stock exchanges - plummet to a scant fraction of their former value and a huge factory can be closed - or relocated - practically overnight. Today, people may have the status of employees - perhaps telecommuting from an in-home office - or in the course of holding down several part-time jobs. An employee may have a full-time job at a regular workplace but - after hours - becomes an entrepreneur while operating a business in order to produce additional revenue. Others are operating businesses on their own account providing services that were previously associated with an employer/employee relationship. Governments - at all levels - and quasi-governmental organizations and Crown corporations have begun to depart from the traditional method of obtaining necessary services and there are issues arising daily over the concept of contracting out services to outside persons or entities rather than relying on employees. The working relationship in the within appeals was entirely satisfactory to the appellant and to the City. From Hyswick's perspective, he had always provided his bylaw enforcement services as a freelancer rather than as a member of a regular municipal staff. However, I have not been persuaded on the evidence before me that this arrangement - albeit workable - conforms with the applicable jurisprudence. One must remember that Hyswick was an enforcement official - sworn in pursuant to City Council procedures - and was a person carrying out a function recognized by the Police Board, a body constituted under the Police Act of the Province of British Columbia. In the absence of proof that the contracting out of this important law enforcement position is legally permissible, I think the more reasonable approach - taking into account the jurisprudence referred to earlier - is to find that the discharge of this special function can occur only within the context of an employer/employee relationship. It may be that some North American jurisdictions have privatized various institutions - including jails - and some multinational corporations owning parking lots across Canada may have been given powers to write parking tickets to alleged offenders but the exercise of a bylaw enforcement function - together with carrying out duties requiring liaison with a municipal police force - does not seem to fit into this category without a valid legislative foundation to support such a radical proposition.
[19] In the within appeals, there is no doubt the appellant believed he was carrying on the business of bylaw enforcement and was providing that service as well as a police liaison service to the City within that context. In fact, he had been operating in the same fashion for nine years - without encountering any opposition - when providing services to the District of Matsqui and the municipality of Abbotsford. However, when the situation is examined closely, there were not two businesses being carried on, one on the part of the appellant and the other on the part of the City. In order that the appellant could carry out his function, he had to be sworn in as a duly authorized law enforcement officer and thereafter - apart from some flexibility in terms of hours and days worked - had to conform with the requirements dictated by the infrastructure and operating policy of a sophisticated urban municipality engaged in the business of governing the affairs of its residents in accordance with powers delegated by provincial legislation.
[20] Having regard to the evidence and the relevant jurisprudence, I find the decisions issued by the Minister on November 20, 2001 to have been correct because the appellant was engaged in both insurable and pensionable employment with the City of Abbotsford during the relevant period by virtue of having been employed pursuant to a contract of service.
[21] The decisions of the Minister having been confirmed, both appeals are hereby dismissed.
Signed at Sidney, British Columbia, this 4th day of October 2002.
|
"D.W. Rowe" |
D.J.T.C.C.
COURT FILE NO.: 2002-721(EI)
STYLE OF CAUSE: Conrad L. Hyswick and M.N.R.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 14, 2002
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.W. Rowe
DATE OF JUDGMENT: October 4, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Johanna Russell
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 2002-722(CPP)
STYLE OF CAUSE: Conrad L. Hyswick and M.N.R.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 14, 2002
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.W. Rowe
DATE OF JUDGMENT: October 4, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Johanna Russell
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada