Date: 20011109
Dockets: 2001-478-EI,
2001-479-CPP
BETWEEN:
LARRY W. ELENIAK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
COOL-IT AUTO SERVICES LTD.,
Intervenor.
Reasonsfor Judgment
Rowe, D.J.T.C.C.
[1] The appellant appeals from decisions issued by the Minister of National Revenue (the "Minister") on January 18, 2001 pursuant to subsections 93(3) of the Employment Insurance Act (the "Act") and 27(1) of the Canada Pension Plan (the "Plan"), respectively, wherein the Minister decided the appellant was not engaged in insurable or pensionable employment with the intervenor (Cool-It) during the period October 22, 1999 to January 7, 2000. The appellant filed a separate appeal - 2001-479(CPP) - and all parties agreed the result in the within appeal would apply.
[2] Larry Eleniak testified that he first came into contact with the intervenor when having the air conditioning in his car repaired at a Cool-It shop. He entered into a discussion with the manager and in the course of their conversation the appellant mentioned that he was an experienced marketer. The manager referred him to Steve Zaeri at the main office of Cool-It in downtown Vancouver, British Columbia. The appellant stated he contacted Zaeri and later met with him and four other people at a restaurant. He understood they were interested in participating in a buying cooperative since only three shops used the Cool-It trade name and two others operated under a different name. Eleniak stated the result of the meeting was that he was hired to carry out marketing for each shop/outlet but was to make arrangements with, take direction from, and be under the supervision and control of Zaeri. Initially, the discussions with the group had been on the basis he would travel from one business to another in the course of carrying out a marketing strategy. However, as matters progressed, the appellant stated he worked about 70% of the time at the intervenor's downtown location - where he had the use of an office equipped with desk, couch, computer, fax machine, telephone and supplies - and devoted the remainder of his work to other locations in Burnaby and Richmond. While his main function was to market the business of the group members and handle outside sales, he stated he also picked up - from various locations - radiators which were to be repaired by Cool-It. In addition, the appellant stated he answered the telephone and provided customers with quotations. The intervenor's business was to provide sales and/or service for air-conditioning systems and radiators of all sorts pertaining to motor vehicles. The appellant stated he was promised a salary of $2,750 per month together with car expenses, a commission on new business, and health plan coverage for himself and his wife which was extremely important to him since this benefit had been available to him at his previous employment. Apart from working at the Cool-It downtown office, Eleniak stated he also worked from his own home attempting to assist Zaeri's brother to emigrate from Iran to Canada and this required several communications to Teheran. He was reimbursed - in cash - every two weeks for car expenses. He also received a pay cheque dated November 9, 1999 - in the sum of $1,000 - and noted there were no deductions taken off and he never saw any document or pay slip for that cheque or the others he received during the course of his working relationship. Prior to assuming his responsibilities with Cool-It, Eleniak had worked - as an employee - at Data Wave Computer Services for 19 months. At his own residence, he had a computer and work station with fax and internet connection. He stated he decided to leave his employment at Data Wave in order to earn an higher income at Cool-It. On one occasion while working late, Eleniak stated an insurance agent arrived and he spoke with her about auto insurance premiums and also about joining the Cool-It employment benefits health care package currently in force. He stated the agent left the Cool-It premises for a brief period - probably to find certain documents in her vehicle - and returned with certain forms which he completed indicating therein that his salary was in the sum of $2,750 per month and naming himself and his wife as persons to be covered by the plan. At this time, Eleniak stated Zaeri was present in the office and was aware of his desire to enroll in the intervenor's health care plan which he understood was applicable to 6 workers at the downtown location, 4 others in Burnaby and two in Richmond. Later, on January 7, 2000, Eleniak suffered health problems and attended at the hospital on an emergency basis. He received a quadruple bypass and the leg from which the vein was stripped did not heal so he remained in hospital until the end of that month. In February, he stated he went with a friend to the intervenor's downtown office at which time certain invoices were presented to him by Joyce Bradford - Office Manager - and he was asked to sign them even though they represented amounts for which he had already been paid and the explanation provided to him - by Bradford - was that the intervenor's accountant had requested it. The purpose of his visit to Cool-It had been to request the balance of the money he believed was owing to him, as calculated on the basis of $2,750 per month. However, he was informed by Bradford that he owed Cool-It money as a result of having received a series of advances. Returning to a description of the services provided by him to the intervenor during the relevant period, the appellant agreed the Reply to the Notice of Appeal (Reply) set forth his duties as it pertained to establishing a common purchasing plan to reduce the cost of parts and to set up a common inventory and billing program. In pursuance of a marketing plan, the appellant stated he prepared a diskette containing a price list of parts according to the format requested by the Insurance Corporation of British Columbia (ICBC) and also provided that corporation with a background paper concerning the operators of each shop - within the group - and a description of their experience in the radiator and air conditioning business. The intervenor and other members of the cooperative wanted to develop a relationship with ICBC and also with Canadian Direct Insurance. The system for repair is based on all body shops having a vendor list containing the names of businesses which are able to provide the necessary product at prices approved by ICBC and it is extremely important for those auto repair shops to be aware of the existence of a business such as Cool-It and its associates. In return, the intervenor and others in the group would be required to perform satisfactory work while matching - or beating - the price on the approved list for certain parts used in the course of the body work. Eleniak explained the process of obtaining approval from ICBC - in order to be added to a vendor's list - was slow and had not yet been accomplished when he became ill. He prepared some Yellow Pages advertising for the Cool-It business group and Zaeri had been able to purchase parts - using the Burnaby outlet - for all 5 shops in order to obtain a price discount attributable to increased volume of purchases. In addition, the appellant stated he held discussions with Steve Zaeri's brother - Maj - about exporting a special paint as well as exploring ways to expand the intervenor's business operations into the United States and elsewhere in Canada. In carrying out the various tasks, Eleniak stated he would arrive at the downtown office at 8:30 a.m. and use his key and access code to gain entry to the premises. He would place the appropriate sign out on the sidewalk and then begin answering the telephone and responding to customers. On occasion, he would use his own vehicle to pick up radiators needing repair or would deliver a repaired unit or pick up parts at a local warehouse. He had his own cell phone and would receive calls from Zaeri or someone else at Cool-It or would merely perform the tasks on a list provided to him by Zaeri. In February, 2000, the appellant applied for Employment Insurance (EI) benefits and also received a cheque - for one month's benefit - from the insurance carrier providing health plan coverage to the intervenor. However, after issuing that one cheque, the insurance company refused to make further payments to him. Since he was unable to work due to the state of his health - a situation which persisted for nearly a year - he applied for social assistance and later received EI benefits, the eligibility for which he attributed to his employment at Data Wave - for 18 months - prior to starting at Cool-It.
[3] In cross-examination by counsel for the respondent, Larry Eleniak stated Steve Zaeri had provided him with a list of work to be performed and - on occasion - gave him oral instructions to attend at a certain place to pick up items or to make a delivery to a specified address. He stated he had not anticipated having to perform these mundane tasks but discovered that nearly 60% of his working day was spent in this manner rather than doing work on the computer or pursuing the marketing initiative. Originally, he had seen himself as a sales representative but later used the title of General Manager to describe his duties and had business cards printed up accordingly. He had seen his role within the business group as one in which he was mandated to develop markets. In that sense, the appellant explained he was well qualified since he had owned his own insurance agency for 7 years and had worked for an airline as well as having been engaged in marketing certain products overseas. He carried out his work from an office - upstairs in the Cool-It building - that had formerly been occupied by Zaeri. While no specific working hours were set, he understood that he should be there in the morning to work, as required, from Monday to Friday and he also attended at the office for part of a day each Saturday. The appellant was referred to copies of cheques paid to him by the intervenor (Exhibit R-1). He agreed he received three cheques during the month of November, 1999; one was in the sum of $1,000 and two others were in the sum of $500. During the month of December, 1999 he received 3 cheques - each in the sum of $500 for a total of $1,500 - and he was paid the sum of $250 by means of a final cheque dated January 6, 2000. All cheques were deposited into his personal bank account and at the time they were issued to him he does not recall having been aware of the presence of any writing describing the payments variously as "contract on sales", "sub contract on sales", "sub contract on marketing" or "marketing sub contract". The procedure was to obtain a cheque - usually at the end of a working day - directly from Zaeri who would fill in the amount. The appellant was also referred to a series of invoices - Exhibit R-2 - and he explained these were signed by him - at the request of Joyce Bradford - when he had attended at the Cool-It premises in February, 2000. He reiterated he had made it clear to Zaeri that he already had an excellent health plan with his existing employer and wanted similar coverage if he decided to work for Cool-It. He stated Zaeri agreed that would not be a problem since there was a corporate health plan already in place with an insurer. Eleniak identified the health plan application form - Exhibit R-3 - and agreed he had inserted the date of October 1, 1999 as the commencement date for his employment at Cool-It. He recognized the submission for the telephone directory listing for 5 shops - Exhibit R-4 - in which he had set forth the name of Charterhouse International Projects Inc. (Charterhouse) as the entity responsible for preparing said listing and the appellant's home address, telephone number, fax number and cell number were included. Eleniak stated the corporation had been used by him previously in order to market certain construction projects but it had been struck from the provincial corporate registry due to inactivity. Eleniak was referred to two invoices - both dated January 8, 2000 - Exhibit R-5 - on the letterhead of Charterhouse - directed to Cool-It for various services rendered from December 28 to 31, 1999 and also for certain expenses incurred between December 31, 1999 and January 6, 2000. The appellant stated he did not recall having prepared those invoices and believed his wife may have done so since he was ill and had begun to experience symptoms of heart trouble the previous day, following which he attended at the Emergency Department of Abbotsford Hospital.
[4] In cross-examination by Joyce Bradford - agent for the intervenor - Eleniak stated he did not recall having told her that he owned several companies and had used them in the course of business in order to take advantage of certain tax write-offs. He also stated he did not recall having been informed by Bradford that he had to be on the payroll of Cool-It for at least 3 months in order to become eligible to participate in the health plan policy. He agreed Bradford had refused to provide him with a Record of Employment on February 18, 2000 to which he had responded by telling her "things could be difficult". He agreed Cool-It had done some repairs on his car - without charge - in recognition of the fact he used his vehicle in the course of his work.
[5] Steve Zaeri testified he arrived in Canada in 1991 and started his own business the following year. He wanted to expand the operation and he and his brother - Maj - and three other individuals met with the appellant - at a Vancouver restaurant - and discussed business development and marketing. Zaeri stated that in the course of the meeting, the appellant advised the group he had operated his own company for years and had extensive business experience in Canada and overseas. Since all participating members of the group were involved in the radiator and air conditioning business, they were interested in the concept proposed by the appellant. However, they were not willing to pay - as a collective - more than $500 per week for his services rather than the sum of $2,750 per month he had requested. The corporation - Cool-It - owned one outlet in Vancouver and another in Burnaby but the outlet operating under the Cool-It name in Richmond was owned by Rick Easch and there was no financial connection between that business and the ones owned by Zaeri but Easch had been given permission to use the trade name. Two other shops, one in Port Moody and another in North Vancouver operated under their own trade names. Cool-It operated an outlet in downtown Vancouver and Zaeri stated Eleniak liked to use the office located in that premise. Zaeri stated the appellant did not attend at the shop in Richmond and came up with excuses for not visiting the other outlets owned by the individuals who had attended the business meeting. As for picking up and/or delivering parts and/or repaired radiators, Zaeri stated that if Eleniak happened to be going in a particular direction for some purpose or other he would offer to carry out an errand for Cool-It because he wanted to use the opportunity to make contact with the proprietor or manager of that business for purposes of a sales call in connection with his efforts to expand the business. Zaeri stated the only people working at the downtown outlet who were permitted to discuss prices with customers were himself, his nephew - Pedro - and Dave, a mechanic. Otherwise, any worker answering the telephone was instructed to put the caller on hold until he, Pedro or Dave could attend to the call. Zaeri stated that the concept of developing a working group - engaged in the same sort of business - could produce increased profit for the members due to their ability to obtain a rebate flowing from an increased volume of purchases. As for obtaining reimbursement from other members of the group towards paying for Eleniak's services, Zaeri stated only one person paid his share.
[6] In cross-examination by counsel for the respondent, Steve Zaeri stated he had not assigned an office to the appellant but permitted him to use the chair, desk and computer in an existing office because Eleniak had advised that his own home computer was not functioning. Zaeri stated he and the members of the business group did not care where the marketing work was carried out but the five member-outlets wanted Eleniak to devote 40 hours per week to that task. Zaeri agreed he had requested Eleniak communicate with the Canadian Embassy in Teheran in order make it clear that Zaeri was operating a viable and established business in Vancouver and was not merely operating a one-man shop. Some telephone calls were made from Eleniak's home and he was reimbursed for the cost. Eleniak was also provided with a key to the Cool-It premises in order to make calls from that location as there is a 12-hour time difference between Vancouver and Teheran. Zaeri stated he dealt with Eleniak on the basis that they were friends. The Cool-It shop repaired the appellant's car without charge and - on occasion - Zaeri gave Eleniak a ride to work and they would eat lunch together. During one conversation with the appellant, Zaeri mentioned he had spoken with a sales manager at an automotive supply store about reflective paint. Zaeri stated Eleniak had informed him that he had a friend who could manufacture that product but nothing further came of it. Zaeri had observed that some of the marketing work done by the appellant seemed to be paying off as Canadian Direct Insurance telephoned Cool-It on 5 or 6 occasions and some business was obtained as a result. Zaeri stated he knew it was not going to be an easy task to obtain work from ICBC-approved body shops and was aware it might take up to 6 months in order to be included into that corporate system for purpose of becoming an approved vendor of parts and service. To that end, Zaeri and other members of the business group considered Eleniak's sole responsibility to be a marketer of their products and service in an effort to increase sales. In the past, Zaeri had done his own sales work but had been willing to have Zaeri contact ICBC and other insurers because he did not feel comfortable dealing with their senior officials and managers. Zaeri explained his long-standing practice - as an employer - is to explain to workers exactly what is expected of them. The only instructions he passed on to the appellant was to attend at a specific area where there was a substantial number of body and repair shops and advised him to avoid making sales calls at certain businesses that were slow in paying outstanding accounts to Cool-It. Zaeri expected the appellant to acquire a minimal knowledge of radiators and air conditioning systems so he could relate to potential customers. In addition, he wanted Eleniak to provide information concerning sales calls made by him and to note the reason potential customers had decided not to deal with Cool-It. However, the information was never provided by Eleniak. By contrast, the marketing company currently handling the Cool-It account delivers detailed information on a regular basis concerning efforts made - and responses received - to marketing campaigns. While there was no set working schedule set for the appellant, Zaeri stated he wanted a brief report twice a day on the activities being carried out. Although there was no discussion about the matter prior to starting work as a marketing consultant to the Cool-it group, Zaeri stated the appellant later mentioned that he wanted extended health coverage. However, Joyce Bradford explained to Eleniak that he had to be a person who had been on the Cool-It payroll for a period of 3 months. In response, Eleniak requested the insurance agent for the health plan carrier attend at the Cool-It premises. Zaeri stated he was present when the agent and Eleniak were discussing the insurance matter but had to leave after only a few minutes. Zaeri stated he thought Eleniak was enrolled in the Cool-It plan but - later - was advised the insurance company issued only one cheque as a disability payment to the appellant and then refused to make any further payments. Initially, Zaeri had expected the appellant would pay his own expenses since he was apparently operating his own corporation. Eleniak requested that Cool-It issue cheques to him personally since his company name was based on his own name and, therefore, it would not make any difference.
[7] In cross-examination by the appellant, Zaeri acknowledged that 5,000 entries had to placed into a computer file in order to prepare for the submission to ICBC. Zaeri pointed out that the Cool-It computer was also used by the appellant for personal matters and denied the suggestion that the business group had agreed to pay the sum of $2,750 per month for the appellant's marketing services.
[8] Dorothy Van der Ree testified she is employed as the Risk Services Coordinator for Federated Insurance Company of Canada (Federated) which provides property, casualty and insurance benefits to employees. On November 24, 1999, she met with the appellant at the Cool-It office, after having been introduced to him by Steve Zaeri who had identified him as a person involved in marketing for the Cool-It business group. Zaeri left the office and discussions continued with Eleniak who then informed her that he was actually the General Manager of Cool-It and requested an application form in order to apply for inclusion in the health plan. She did not have the appropriate document with her but faxed it to him from her office the next day and he completed it and returned the form to her on November 26, 1999. Since he had described himself as General Manager on the application form - Exhibit R-3 - she assumed he would be an employee of Cool-It. She stated she would never have taken it upon herself to suggest to Eleniak that the description of his duties at Cool-It would be "more like that of a General Manager" as it was not her function to offer that advice.
[9] In cross-examination by counsel for the respondent, Dorothy Van der Ree agreed she had received a copy of the letter - Exhibit R-6 - dated February 23, 2000 informing the appellant that no further short term disability benefits would be paid to him since he did not qualify as an eligible employee as defined by the insurance policy. The Proof of Claim - Exhibit R-7 - dated January 12, 2000 - submitted by the appellant to Federated - refers to symptoms having been experienced by him in November, 1999. She stated that in order for someone to be covered by the insurance policy in force for Cool-It, the premiums for an individual must be deducted at source in the same fashion as other usual deductions for an employee.
[10] In cross-examination by the appellant, Dorothy Van der Ree agreed there would probably be a small discount available for the 5 participating businesses in the Cool-It marketing group if they chose to have Federated handle all their insurance requirements. In response to a suggestion by Eleniak to that effect, she stated she had not used the term - General Manager - in relation to his duties at Cool-It. However, she later accepted his own description to that end and when policies were issued she reviewed them - with the appellant - on the basis he was an employee of Cool-It holding that specific title. She stated no premium had ever been paid by - or on behalf of - the appellant in relation to his purported enrolment in the existing health plan. Although Federated did issue one cheque to Eleniak following receipt of the proof of claim, the company then declined coverage but did not bother to take any action to recover the amount of the disability payment that had been sent to the appellant.
[11] The appellant submitted that he had been offered a job as a marketer at a salary of $2,750 per month after having initially requested the larger amount of $3,300 per month. He pointed out he had been reimbursed - in cash - for car expenses and stated he would never have changed employment had he been aware he would not be an employee of Cool-It and entitled to whatever benefits would flow from that status, including enrolment in a health plan.
[12] Counsel for the respondent submitted the evidence of the appellant was not credible and was an attempt to create an aura of employment so that - for ulterior motives - he could be seen as an employee of Cool-It - from the beginning - rather than as an independent contractor providing marketing services. Counsel submitted that certain tasks or errands were done by Eleniak out of friendship - as a favour to Zaeri - but there were no specific requirements for him to answer telephones or to carry out routine tasks at the shop. By way of contrast, counsel submitted it was clear Zaeri and his group were interested in results and wanted to see an increase in sales and profits as a result of having formed a business alliance. Counsel suggested the evidence in the within appeal was consistent with an independent contractor relationship that had turned sour after the appellant suffered serious health problems since - at all material times - the appellant had held himself out as an experienced entrepreneur operating his own business through a corporation.
[13] In Wiebe Door Services Ltd. v. M.N.R., [1986] 2 C.T.C. 200, the Federal Court of Appeal approved subjecting the evidence to the following tests, with the admonition that the tests be regarded as a four-in-one test with emphasis on the combined force of the whole scheme of operations. The tests are:
1. The control test
2. Ownership of tools
3. Chance of profit or risk of loss
4. The integration test
Control:
[14] The evidence of the appellant that he was required by Zaeri to answer the telephone, take out the sign in the morning and run errands by picking up and delivering certain items in the regular course of the radiator and air conditioning business is not credible. He knew nothing of the business and would definitely not be the one to answer the telephone and provide advice and quotations to potential customers concerning their automotive cooling and heating problems. Zaeri and the others in the group wanted to expand the scope of their business and to improve their buying power on parts as a result of banding together for those limited purposes. Toward that end, they retained the appellant to create a common purchasing plan and to set up a common inventory and billing program. Initially, the appellant was to spend one week per month at each location in pursuance of the marketing strategy and would be reimbursed at the rate of $500 per week. Zaeri gave the appellant some advice and direction as to appropriate businesses to call on - or to avoid - and wanted some feedback on a regular basis as to where he had been and what results - if any - were flowing from the calls. He also suggested Eleniak acquire a limited knowledge of the Cool-It business so he could properly discuss the services of the business group when approaching potential customers. Zaeri was aware the process of becoming included on the approved vendors list utilized by ICBC at body repair shops was a long-term proposition and the appellant was left on his own to achieve that end. Any so-called control or supervision as it applies to an employee existed only as a figment of the appellant's imagination - much like his self promotion to the title of General Manager - and did not flow from Zaeri. With regard to this particular test, it points to the status of independent contractor.
Tools:
[15] The appellant was able to use the computer and office at the downtown Cool-It location but he also performed some work on his own computer at home in his own equipped office. He used his own motor vehicle and cell phone. He was supposed to attend at the other businesses on a regular basis but chose to remain at the comfortable downtown office. In the circumstances, this test is not particularly significant but it still - on balance - supports the characterization of the appellant as an independent marketer operating on his own account.
Chance of profit or risk of loss:
[16] The appellant entered into the arrangement with the Cool-It business group and the remuneration for his services was arrived at by the process of negotiation. He wanted to be paid the sum of $2,750 per month and Zaeri and the others in the group refused to accept that proposition. They countered with the offer to pay him the sum of $500 per week for his marketing services and the payments made to him - commencing November 8, 1999 and continuing until January 6, 2000 - were calculated on that basis. There was no suggestion the appellant was required to devote his full time and efforts exclusively to Cool-It and the others in the group but they did expect him to devote 40 hours per week to their project. His own invoices - Exhibit R-5 - indicate he was purporting to carry on business as a corporation - Charterhouse - and this is consistent with the initial representations he made to the business group - when attempting to sell his marketing expertise - that he was an experienced entrepreneur accustomed to operating his own business through a privately-owned corporation. It is to be assumed that any professional person undertaking to deliver a particular service for a specified fee has done his or her homework and is reasonably satisfied the revenue from that piece of work will either turn a profit - in itself - or is being adequately compensated for within the larger picture of an ongoing business over a longer term. It is not unusual for persons delivering a specific service - not directly connected with the principal function of a business - to do so on the basis of a specified regular fee or retainer. The appellant was well aware he would be providing services to a group composed of 5 separate businesses and that each member would be contributing money in payment of his weekly fee in order to obtain benefit from his marketing expertise. With respect to this test, I find it favours the status of entrepreneur.
Integration:
[17] This test is one of the most difficult to apply. At page 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.
[18] The evidence disclosed the appellant to have had no significant working knowledge of the radiator or air conditioning business as it pertained to motor vehicles. He would not have been able to offer any skills to Cool-It - or the others in the business group - in that regard. He held himself out to be a skilled marketer who could increase the market share of an affiliated group and as someone capable of organizing a central system that would permit cost efficiencies to occur as a result of increased buying power or by placement of insurance coverage with one insurer. No one had performed that function prior to his arrival on the scene and, following his departure, an independent professional marketing service took over the Cool-It account. The manner in which the appellant presented himself and his subsequent working behaviour was wholly consistent with a self-employed individual carrying out a specific task with a view to achieving a particular objective during the course of efforts expended during a period not limited by a specific deadline. Zaeri - on behalf of Cool-It - and as spokesman for others in the business group, was not an individual experienced in marketing even though he had previously done his best to expand his business by making personal contacts with persons in the body shop industry. The service provided by the appellant was collateral to the operations of Cool-It and its business associates and was intended to enhance the scope of existing operations in an effort to increase revenue and - to some extent - decrease the overall cost of purchasing parts and other products. The appellant had represented to the group that he was well experienced in the marketing field and had the means to deliver the service. His subsequent conduct was consistent with that posturing and the fact he purported to operate through his own corporation bears that out. Many consultants carry out their tasks at the offices of clients using the equipment in place on the premises. The invoices - Exhibit R-2 - signed by the appellant confirmed he was being paid for having supplied marketing services. The fact they were prepared by Joyce Bradford at Cool-It is not significant since the relationship at that point had come to an end and it was important to have an invoice to cover each cheque that had already been issued to the appellant by Zaeri. Again, this test favours a finding that the appellant was an independent contractor.
[19] I am aware it is important to consider what was actually done by the worker during the course of the working relationship rather than to accept that which was intended at the outset. However, the evidence of the appellant is not credible when assessed in relation to the evidence of other witnesses and where there is a difference on a particular point arising from the testimony of Eleniak and Zaeri or Eleniak and Van der Ree, I choose the version presented by Zaeri or Van der Ree. It is apparent Eleniak wishes to have this Court rule in his favour and to find him to have been an employee during the course of his relationship with Cool-It, not for purposes of permitting him to receive EI benefits - already obtained as a result of having qualified due to former employment - but to use such finding as a springboard from which to launch his pursuit of arrears allegedly owing to him - in disability payments - by Federated in accordance with the existing policy covering Cool-It employees. As a result, the evidence of the appellant was designed to create an atmosphere of servitude that did not exist even though he attempted to demonstrate the extent to which he had been integrated into the daily business operations of Cool-It by relating how he had answered telephones, opened up the shop - and put the sign out on the sidewalk - each morning and had been required to run errands in accordance with a list provided to him by Zaeri. The position of General Manager existed only in his own mind. One has to ask: why would he be retained as a marketing specialist by the business group - following the meeting at the Vancouver restaurant - and yet be fulfilling the role of General Manager - only as it pertained to the operations of Cool-It - three or four weeks later. Zaeri testified Eleniak had wanted the sum of $2,750 for his services but the business group had countered with an offer to pay the sum of $500 per week. The appellant - prior to submitting his closing argument - advised the Court that his initial salary demand had been in the sum of $3,300 per month but he had agreed to accept the sum of $2,750. To put it bluntly, the appellant suffers from delusions of grandeur. He wanted to be perceived at the outset - and acted consistently throughout - as a marketing guru with overseas experience capable of expanding the revenue of the Cool-It business group. He had already been experiencing health problems and efforts to be enrolled in the Cool-It disability insurance plan played a significant part in his overall plan. To that end, he misrepresented himself to Van der Ree as fulfilling the role of General Manager of Cool-It and - even worse - completed the application form on the basis he had been working for the intervenor since October 1, 1999 when - in fact - he had begun to provide his marketing services on or about October 27, 1999. Throughout the working relationship, he continued to accept payment for his services at the rate of $500 per week - without any deductions - and the cheques drawn on the Cool-It account - signed by Zaeri - were issued to Larry Eleniak - personally - in response to his specific request even though he was operating - supposedly - as a limited company. The explanation offered by him - to Zaeri - was that he was using his personal name as part of the official incorporated name and, therefore, it did not make any difference.
[20] Taking all the evidence into account and applying it in the manner directed by the Federal Court of Appeal in Wiebe, supra, I find the Minister was correct in deciding the appellant was not engaged in insurable and pensionable employment with Cool-It during the relevant period.
[21] The within appeal is hereby dismissed and - as agreed by the parties at the outset - this result is applicable to appeal 2001-479(CPP) and it is also dismissed.
Signed at Sidney, British Columbia, this 9th day of November 2001.
"D.W. Rowe"
D.J.T.C.C.
COURT FILE NO.: 2001-478(EI)
STYLE OF CAUSE: Larry W. Eleniak and M.N.R. and
Cool-It Auto Services Ltd.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 17, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.W. Rowe
DATE OF JUDGMENT: November 9, 2001
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Isabelle Jackson
For the Intervenor: Joyce Bradford (Agent)
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
COURT FILE NO.: 2001-479(CPP)
STYLE OF CAUSE: Larry W. Eleniak and M.N.R. and
Cool-It Auto Services Ltd.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 17, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.W. Rowe
DATE OF JUDGMENT: November 9, 2001
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Isabelle Jackson
For the Intervenor: Joyce Bradford (Agent)
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
2001-478(EI)
BETWEEN:
LARRY W. ELENIAK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
COOL-IT AUTO SERVICES LTD.,
Intervenor.
Appeal heard on common evidence with the appeal of Larry W. Eleniak (2001-479(CPP)) on August 17, 2001 at Vancouver, British Columbia, by
the Honourable Deputy Judge D.W. Rowe
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Isabelle Jackson
Agent for the Intervenor: Joyce Bradford
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 9th day of November 2001
|
"D.W. Rowe" |
D.J.T.C.C.
2001-479(CPP)
BETWEEN:
LARRY W. ELENIAK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
COOL-IT AUTO SERVICES LTD.,
Intervenor.
Appeal heard on common evidence with the appeal of Larry W. Eleniak (2001-478(EI)) on August 17, 2001 at Vancouver, British Columbia, by
the Honourable Deputy Judge D.W. Rowe
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Isabelle Jackson
Agent for the Intervenor: Joyce Bradford
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 9th day of November 2001.
|
"D.W. Rowe" |
D.J.T.C.C.