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Docket: 2001-4452(EI) |
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BETWEEN: |
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MIKE HAMBLIN (A PROPRIETORSHIP OPERATING AS MIKE'S TOWING), |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
__________________________________________________________________
Appeal heard on common evidence with the appeal of Mike Hamblin (a Proprietorship operating as Mike's Towing) (2001-4453(CPP)) on December 10 and 13, 2002 in Edmonton, Alberta,
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Before: The Honourable Deputy Judge Michael H. Porter |
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Appearances: |
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Agent for the Appellant: |
Charlotte Hamblin |
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Counsel for the Respondent: |
Carla Lamash |
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JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 23rd day of May 2003.
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"Michael H. Porter" |
D.J.T.C.C.
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Citation: 2003TCC301 |
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Date: 20030523 |
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Docket: 2001-4452(EI) |
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BETWEEN: |
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MIKE HAMBLIN (A PROPRIETORSHIP OPERATING AS MIKE'S TOWING), |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent, |
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AND |
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Docket: 2001-4453(CPP) |
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MIKE HAMBLIN (A PROPRIETORSHIP OPERATING AS MIKE'S TOWING), |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
REASONS FOR JUDGMENT
Porter, D.J.T.C.C.
[1] These appeals were heard on common evidence by consent of the parties, at Edmonton, Alberta on December 10 and 13, 2002.
[2] The Appellant did not appear personally, but was represented at the appeals by his ex-wife, Charlotte Hamblin, who had worked with him in the business at the material times, and had personal knowledge of the events.
[3] The Appellant has appealed from the decision of the Minister of National Revenue (the "Minister") dated August 24, 2001, wherein he confirmed assessments dated December 22, 2000, for Canada Pension Plan contributions and employment insurance premiums as follows:
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YEAR CPP EI |
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1999 $1,675.30 $1,903.72 |
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with respect to the following workers: Vince Barone, Daved Hughes, Kevin Klymok, Stan Lowe, James Svekla, Kalvin Wersgerber
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2000 $1,498.46 $1,455.37 |
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with respect to the following workers: Vince Barone, Steven Faemel, Levi Gallant, Wayne Henry, Daved Hughes, Kevin Klymok, Pasquelino Santoro
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The Reasons given for the decision were that the workers in question were employed under contracts of service and were therefore employees of the Appellant. The decisions were said to be issued pursuant to subsection 27.2(3) of the Canada Pension Plan (the "CPP Plan") and section 93 of the Employment Insurance Act (the "EI Act"). This decision was based on paragraph 6(1)(a) of the CPP Plan and paragraph 5(1)(a) of the EI Act.
[4] The material facts reveal that the Appellant, during the periods in question, the 1999 calendar year and the 1st of January 2000 to November 30, 2000, operated a tow truck business in the City of Edmonton, Alberta. In the course of his business, he engaged the workers to operate his various tow trucks. The engagements were done verbally and nothing was reduced to writing. The Minister has determined that the workers were employees engaged under contracts of service. The Appellant has maintained that they were independent contractors working under contracts for services and thus not in insurable or pensionable employment. That is the principal issue before the Court.
[5] The secondary issue before the Court is the amount of the assessments as Ms. Hamblin claimed, on behalf of the Appellant, that the calculations were incorrect and that at times certain workers were not even engaged in work. During the course of the trial, the parties at the urging of the Court, entered into negotiations over the calculations and came to an agreement on that issue as set out in the attached Exhibit A-4 filed with the Court.
[6] The Court indicated that it was of the view that the Appellant could not succeed on the principal issue for reasons which would be forthcoming in writing, but that the assessments should be referred by to the Minister for reconsideration and reassessments in accordance with Exhibit A-4. I now turn to deal with the reasons why the Court is of the opinion that the workers in question were employees working under contracts of service and not independent contractors working under contracts for services.
The Law
Contracts Of/For Service
[7] The manner in which the Court should go about deciding whether any particular working arrangement is a contract of service and thus an employer/employee relationship or a contract for services and thus an independent contractor relationship, has long been guided by the words of MacGuigan J. of the Federal Court of Appeal in the case of Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025. The reasoning in that case was amplified and explained further in cases emanating from that Court, namely in the cases of Moose Jaw Kinsmen Flying Fins Inc. v. M.N.R., 88 DTC 6099, Charbonneau v. Canada (M.N.R.) [1996] F.C.J. No. 1337, and Vulcain Alarme Inc. v. The Minister of National Revenue, (1999) 249 N.R. 1, all of which provided useful guidance to a trial Court in deciding these matters.
[8] The Supreme Court of Canada has now revisited this issue in the case of671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001] S.C.J. No. 61, 2001 SCC 59, 274 N.R. 366. The issue in that case arose in the context of a vicarious liability situation. However, the Court recognized that the same criteria applied in many other situations, including employment legislation. Mr. Justice Major speaking for the Court, approved the approach taken by MacGuigan J. in the Wiebe Door case (above), where he had analyzed Canadian, English and American authorities, and, in particular, referred to the four-test, for making such a determination enunciated by Lord Wright in City of Montreal v. Montreal Locomotive Works Ltd., [1974] 1 D.L.R. 161 at 169-70. MacGuigan J. concluded at page 5028 that:
Taken thus in context, Lord Wright's fourfold test [control, ownership of tools, chance of profit, risk of loss] is a general, indeed an overarching test, which involves "examining the whole of the various elements which constitute the relationship between the parties". In his own use of the test to determine the character of the relationship in the Montreal Locomotive Works case itself, Lord Wright combines and integrates the four tests in order to seek out the meaning of the whole transaction.
At page 5029 he said:
... I interpret Lord Wright's test not as the fourfold one it is often described as being but rather as a four-in-one test, with emphasis always retained on what Lord Wright, supra, calls "the combined force of the whole scheme of operations," even while the usefulness of the four subordinate criteria is acknowledged. (emphasis mine)
At page 5030 he had this to say:
What must always remain of the essence is the search for the total relationship of the parties...
He also observed:
There is no escape for the Trial Judge, when confronted with such a problem, from carefully weighing all of the relevant factors...
[9] Mr. Justice MacGuigan also said this:
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, 738-9:
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.
[10] In the case of Kinsmen Flying Fins Inc. case, above, the Federal Court of Appeal said this:
... like MacGuigan J. we view the tests as being useful subordinates in weighing all of the facts relating to the operations of the Applicant. That is now the preferable and proper approach for the very good reason that in a given case, and this may well be one of them, one or more of the tests can have little or no applicability. To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate.
[11] The nature of the tests referred to by the Federal Court of Appeal can be summarized as:
a) The degree or absence of control exercised by the alleged employer;
b) Ownership of tools;
c) Chance of profit;
d) Risk of loss;
In addition, the Court must consider the question of the integration, if any, of the alleged employee's work into the alleged employer's business.
[12] In the Sagaz decision (above) Major J. said this:
...control is not the only factor to consider in determining if a worker is an employee or an independent contractor...
[13] He dealt with the inadequacy of the 'control test' by again approving the words of MacGuigan J. in the Wiebe Door case (above) as follows:
A principal inadequacy [with the control test] is its apparent dependence on the exact terms in which the task in question is contracted for: where the contract contains detailed specifications and conditions, which would be the normal expectation in a contract with an independent contractor, the control may even be greater than where it is to be exercised by direction on the job, as would be the normal expectation in a contract with a servant, but a literal application of the test might find the actual control to be less. In addition, the test has broken down completely in relation to highly skilled and professional workers, who possess skills far beyond the ability of their employers to direct.
[14] He went on to say this:
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.
[15] I also find guidance in the words of Décary J.A. in the Charbonneau case (above) when speaking for the Federal Court of Appeal he said this:
The tests laid down by this Court ... are not the ingredients of a magic formula. They are guidelines which it will generally be useful to consider, but not to the point of jeopardizing the ultimate objective of the exercise, which is to determine the overall relationship between the parties. The issue is always, once it has been determined that there is a genuine contract, whether there is a relationship of subordination between the parties such that there is a contract of employment ... or, whether there is ... such a degree of autonomy that there is a contract of enterprise or for services. ... In other words, we must not pay so much attention to the trees that we lose sight of the forest. ... The parts must give way to the whole. (emphasis mine)
[16] I also refer to the words of Létourneau J.A. in the Vulcain Alarme case (above), where he said this:
... These tests derived from case law are important, but it should be remembered that they cannot be allowed to compromise the ultimate purpose of the exercise, to establish in general the relationship between the parties. This exercise involves determining whether a relationship of subordination exists between the parties such that the Court must conclude that there was a contract of employment within the meaning of art. 2085 of the Civil Code of Quebec, or whether instead there was between them the degree of independence which characterises a contract of enterprise or for services....
[17] I am further mindful that as a result of the recent decisions of the Federal Court of Appeal in Wolf v. Canada [2002] F.C.J. No. 375, and Precision Gutters Ltd. v. Canada (Minister of National Revenue-M.N.R.), [2002] F.C.J. No. 771, a considerable degree of latitude seems now to have been allowed to creep into the jurisprudence enabling consultants to be engaged in a manner in which they are not deemed to be employees as they might formerly been. I am particularly mindful of the words of Mr. Justice Décary in the Wolf decision (above) where he said:
"In our day and age, when a worker decides to keep his freedom to come in and out of a contract almost at will, when the hiring person wants to have no liability towards a worker other than the price of work and when the terms of the contract and its performance reflect those intentions, the contract should generally be characterised as a contract for services. If specific factors have to be identified, I would name lack of job security, disregard for employee-type benefits, freedom of choice and mobility concerns." (my emphasis)
[18] Thus, it seems to this Court that the pendulum has started to swing, so as to enable parties to govern their affairs more easily in relation to consulting work and so that they may more readily be able to categorize themselves, without interference by the Courts or the Minister, as independent contractors rather than employees working under contracts of service.
[19] In conclusion, there is no set formula. All these factors bear consideration and as Major J. said in the Sagaz case (above), the weight of each will depend upon the particular facts and circumstances of the case. Many of the tests can be quite neutral and can apply equally to both types of situation. In such case, serious consideration has to be given to the intent of the parties. Thus is the task of the trial Judge.
[20] I also took into account the various additional authorities placed before by counsel and the Minister, Kreutz v. M.N.R. [2002] F.C.J. No. 351 (F.C.A.), Custom Auto Carriers Ltd. v. M.N.R., [1998] T.C.J. No. 936 (T.C.C.), Johnson v. M.N.R. [1991] T.C.J. No. 728 (T.C.C.), Always Towing Services (Windsor) Ltd. v. M.N.R. [2000] T.C.J. No. 494 (T.C.C.), and Guerriero v. M.N.R., [1987] T.C.J. No. 821 (T.C.C.).
The Facts
[21] In the Replies to the Notices of Appeal signed on his behalf, the Minister was said to have relied upon the following assumptions of fact, with which the Appellant agreed or disagreed as set out in parenthesis:
(a) The Appellant operates a tow truck business. (Agreed)
(b) The Workers were hired as tow truck drivers and their duties included towing, boosting, recovery, and relocation. (Agreed subject to the word "hired" being the same as "engaged")
(c) The Workers performed their services in the field. (Agreed)
(d) The Workers earned a set wage of 30% of the billings. (Disagreed)
(e) The Appellant set the wage rate. (Disagreed)
(f) The Appellant controlled the billing rates. (Disagreed)
(g) The Appellant paid the Workers on a weekly or bi-weekly basis. (Agreed)
(h) The Appellant controlled the collection and disbursement of monies. (Disagreed)
(i) The Workers did not charge the Appellant G.S.T. (Agreed)
(j) The Appellant obtained and assigned the work. (Disagreed)
(k) The Appellant provided a dispatcher. (Agreed)
(l) The Workers were directed by the dispatcher. (Disagreed)
(m) The Workers were in radio contact with the Appellant. (Agreed - sometimes but not always)
(n) The Appellant expected his trucks to be out earning money. (Agreed)
(o) The Appellant retained the right to control the Workers. (Disagreed)
(p) The Appellant's approval was required for any replacement drivers. (Disagreed)
(q) The Workers did not operate their own businesses. (Disagreed)
(r) The Appellant provided the tools and equipment required including the truck and towing accessories. (Disagreed)
(s) The Workers provided their own clothing and some hand tools. (Agreed)
(t) The Appellant provided the vehicle insurance. (Agreed)
(u) The Appellant paid all operating costs including fuel, oil, washes, and general maintenance. (Disagreed)
(v) The Workers were not required to incur any operating expenses in the performance of their duties. (Disagreed)
[22] The Appellant disagreed with item (w), but in view of the agreement reached between the parties, it has no relevance to the decision at hand.
[23] The greatest disagreement the Appellant had with the assumptions of fact related to items (e), (f), (j), (l) and (r), all of which Ms. Hamblin said involved a sharing between the Appellant and the Workers. On the whole, I found Ms. Hamblin to be a truthful, albeit somewhat confused, witness and except where specifically noted, I have no difficulty in accepting her evidence on these matters.
[24] With respect to items (d), (e) and (f), where the Minister found the Appellant set the wage rates, the evidence was that the 70/30 split was the agreed arrangement between the parties for all tow jobs, through the dispatch system operated by the Appellant. In addition, Ms. Hamblin gave evidence supported to some extent by Vince Barone, one of the drivers, that the drivers were able to find their own work other than through the dispatch system. There, the evidence diverges and to some extent shows the system to be somewhat chaotic. Ms. Hamblin said that the drivers could set their own rates for all tow jobs which they picked up themselves, other than through dispatch, could work for cash, and could keep all such payments for themselves. She said she would not know in any event and thus did not try to keep control of this. She described it as being "gravy" for the drivers. Vince Barone, whilst agreeing that some drivers may have kept this cash, said that he accounted to the Appellant for these amounts. I glean that some of these monies were used to purchase fuel and oil for the trucks and to do minor repairs and maintenance that the drivers carried out themselves.
[25] There was a mix of monies coming into the hands of the drivers and to that extent, the remuneration received by the drivers was out of the control of the Appellant. This also deals with item (h) in that the Appellant did not fully control the collection and disbursement of monies. I find the whole system was very chaotic and unorganized.
[26] Similarly with respect to item (j), the Appellant did not obtain and assign all of the work. The Appellant did find some of it and assign it through the dispatch system. However, a lot of the other work was found directly by the drivers, so no one knows how much of this was accounted for, if any, on any particular day.
[27] Ms. Hamblin disputed the assumption that the Appellant retained the right to control the workers (item (o). On the evidence, it is clear that for a great deal of the time, the Workers were left to their own resources. However, they had the Appellant's trucks in their possession and I cannot believe that the Appellant could not have at any time recalled those trucks, which of course would be the ultimate exercise of control. In addition, it was clear from the evidence that dispatched calls had to take priority over work generated by the drivers themselves. Thus, I am satisfied that the Minister was correct in his assumption in this respect.
[28] With respect to replacement drivers (item (p), it seems from the evidence that there was a great deal of trading backwards and forwards between the drivers. However, for insurance purposes, they had to have prior approval from the insurers through the Appellant and thus, in turn, approval from the Appellant. They could not just turn the trucks over anybody without reference to the Appellant for this approval.
[29] With respect to item (r), the trucks and the basic accessory equipment to go with them were provided by the Appellant. However, many of the drivers who were experienced tow truck operators, brought into use their own equipment which they had accumulated over time and preferred to use. Thus, the major equipment was provided by the Appellant. There was not an insignificant amount of equipment also provided by some but not all the drivers. The exact details of who had what in any particular case was not clear from the evidence.
[30] With respect to item (u) regarding fuel, oil, washes and general maintenance, there appears to have been further confusion. All major maintenance and repair was clearly done by the Appellant. All running maintenance involving relatives by minor expense seems to have been done by the drivers themselves, using cash they had collected from customers. Whether this came from the 30% or the 70% or other cash they had collected is not clear. It probably was mix of all three. Fuel generally seems to have been paid by the Appellant. The drivers used their cash to purchase fuel and then produced the invoices to the Appellant. On the other hand, they made personal use of the trucks with their families from time to time, so again that seems to be quite a grey area here.
[31] It is clear that in issuing invoices to customers, the drivers used forms provided by the Appellant with the Appellant's logo or name on them. The trucks also bore the name "Mike's Towing" and the drivers carried business cards bearing the same name.
[32] On the whole, I found that a very confusing and chaotic relationship existed between the drivers and the Appellant. The drivers used the trucks for their own purposes and may or may not have accounted for all or some of the cash funds collected. Ms. Hamblin was of the view that this is what made the drivers really independent contractors. However, the evidence was quite deficient in any kind of detail and her assertions in this respect are not entirely consistent with the evidence of Mr. Barone, who said that he accounted for this cash.
[33] In the final analysis, I find that although Ms. Hamblin did her very best in giving her evidence, she was not able to deal in any way with any specifics and to this extent, her evidence was somewhat unsatisfactory.
Application of the Various Factors to the Evidence
[34] Although perhaps the necessity of reviewing the four-in-1 test referred to in the Wiebe Door decision (above) has now been somewhat diminished by the decision of the Supreme Court of Canada in the Sagaz case (above) it is still in my mind, a useful exercise to go through. The Federal Court of Appeal considered as much in both the Wolf decision (above) and the Precision Gutters decision (above). There are obviously difficulties with each one of the aspects of this test, but they are still of assistance to a trial Judge to a greater or lesser extent, depending upon the circumstances.
[35] Title: It must still be clearly understood that even where the parties choose to put a title on their relationship, if the true nature and substance of the arrangement does not accord with that title, it is the substance to which the Court must have regard. That legal principle has not changed (see Shell Canada Ltd. v. Canada [1999] S.C.J. No. 30). Having said that, it is also fair to say that where the parties genuinely choose a particular method of setting up their working arrangement, it is not for the Minister or this Court to disregard that choice. Due deference must be given to the method chosen by the parties and if on the evidence as a whole there is no substantial reason to derogate from the title chosen by the parties, then it should be left untouched. The Wolf and Precision Gutter cases very much substantiate that proposition.
[36] In this case, the Appellant and the various drivers entered into verbal contracts, the exact details of which are far from clear. Although Ms. Hamblin puts the title of a contract for services upon these arrangements, there is no evidence before the Court that the drivers themselves viewed it in this way. I need, however, to look at all of the other factors in order to see if the substance of the arrangement accords with the written contract.
[37] Control: As this aspect of the test has been traditionally applied, it has been consistently pointed out that it is not the actual control so much as the right to control that it is important for the Court to consider. The more professional and competent a person is or the more experience they have in their field, the less likely there is to be any actual control, which creates difficulty in applying this test. Indeed as Major J. pointed out in the Sagaz case (above), there may be less control exercised in the case of a competent professional employee than in the case of an independent contractor. Nonetheless, it is another factor to be weighed in the balance.
[38] I find that there was an element of control exercised by the Appellant over the drivers. Whilst, if they did not have any dispatch calls to attend to, they were free to pick up work themselves, it was clear that they were required to give priority to the dispatch calls. They were also required to be on duty 24 hours a day, 7 days per week, and if unable to do so, were required to turn the truck over to another driver. I do not find that the drivers could simply refuse to go on dispatch calls. Had they chosen to do so, they would no doubt have been relieved of their trucks quite quickly.
[39] This factor, in my view, favours a finding on balance of a contract of service with an employee.
[40] Tools and Equipment: Whilst there were not significant pieces of equipment provided by various drivers of their own choice, the major items of equipment were provided by the Appellant, namely the trucks. In addition, the Appellant provided 2-way radios in the trucks, and all beepers to the drivers so that they could be called at any particular time. Whilst I am mindful of the decision in the Precision Gutters case (above) on balance, in my mind, this factor indicates more an employee relationship than that of independent contractor.
[41] Profit and Loss: There was certainly an element of freedom in the hands of the drivers as to how much work they took on. If they did not wish to work, they could turn the truck over to another approved driver. They also had the opportunity to go out and look for work themselves with the truck and would make an unknown amount of money in cash for such work. This certainly has, to some extent, an entrepreneurial element to it. However, it seems that they were still required to account to the Appellant, according to the evidence of the witness Barone, for amounts received. Those who had their own equipment, of course, risked the expense of damaging or losing that equipment. However, there was no precise evidence as to how much they had invested or how many of the drivers had their own equipment. Thus, although there is an element of profit and loss here, the evidence is not particularly forthcoming on either of these points. If anything, in my mind, it would favour a finding of independent contractor relationships.
[42] Integration: This again has been found by the Courts to be a difficult test to apply. The question frequently asked is "whose business is it?". Clearly, that has to be asked from the point of view of the worker and not the payor, as from the latter's point of view it is always in business. The context in which the question must be asked is whether there are one or two businesses. In other words, is the person who has engaged himself or herself to perform these services, performing them as a person in business on his or her own account. If the answer to that question is yes, then the contract is a contract for services. If the answer is no, then it is a contract of service.
[43] Whilst in my view, there is some entrepreneurial element to the manner in which some of these tow truck drivers worked for the Appellant, the evidence really is totally lacking as to the extent of that. As I say, it was a chaotic relationship which existed between the drivers and the Appellant. The one constant was that the drivers when they drove, were driving trucks which bore the name of the Appellant and they invoiced the customers in the name of the Appellant. I glean from the evidence that some of the cash jobs would have no invoices on them at all and nobody would know what they had received, but that hardly takes them outside of an employment relationship for the work done that was recorded. To the extent that records were kept, the work that was done was done, in my view, as part of the business of the Appellant and not as part of any independent business of any of the tow truck drivers. I am unable to come to the conclusion on the vague evidence placed before me that because they did some cash jobs for which they did not account, they are somehow no longer employees of the Appellant and in business for themselves.
Conclusion
[44] When I look at the forest as a whole as well as the individual trees, I am not satisfied on the evidence that the Appellant has met the onus upon him of showing that the Minister's decision was incorrect in this case. The basic working conditions of the drivers lend themselves on balance to an employer/employee working relationship rather than an independent contractor relationship. Thrown into that is the confusing situation with regard to a lot of the cash jobs taken on by the drivers, of which there appears to have been no accounting when invoices were not issued. In Mr. Barone's case, clearly he did account for those monies and I am unable from the evidence to establish what amounts, if any, the other drivers may have earned in this manner. On balance, when I weigh all of the evidence, I am of the view that preponderance of the evidence leads to a conclusion that the drivers were engaged as employees and not as independent contractors and thus were in insurable and pensionable employment during the period in question.
[45] In the result, the appeal is allowed and the assessments are referred back to the Minister for reconsideration and reassessment on the basis and set out in Exhibit A-4 of the calculations agreed upon by the parties, which is reproduced and attached to these Reasons.
Signed at Calgary, Alberta, this 23rd day of May 2003.
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"Michael H. Porter" |
D.J.T.C.C.
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CITATION: |
2003TCC301 |
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COURT FILE NO.: |
2001-4452(EI), 2001-4453(CPP) |
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STYLE OF CAUSE: |
Mike Hamblin ( a Proprietorship operating as Mike's Towing) and M.N.R. |
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PLACE OF HEARING: |
Edmonton, Alberta |
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DATE OF HEARING: |
December 10 and 13, 2002 |
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REASONS FOR JUDGMENT BY: |
the Honourable Deputy Judge Michael H. Porter |
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DATE OF JUDGMENT: |
May 23, 2003 |
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APPEARANCES: |
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Agent for the Appellant: |
Charlotte Hamblin |
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Counsel for the Respondent: |
Carla Lamash |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |
EXHIBIT A-4
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2000 |
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REPLY |
APPELLANT |
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Vince |
$1,516.76 |
$ 834.60 |
$1,137.57 |
|
Steven |
1,870.30 |
1,004.37 |
1,402.73 |
|
Levi |
2,381.02 |
1,379.62 |
1,785.77 |
|
Wayne |
2,690.55 |
1723.00 |
2,017.91 |
|
Daved |
11,058.22 |
5,639.87 |
5,639.87 |
|
Kevin |
5,447.33 |
2,666.71 |
4,085.50 |
|
Pasquelino |
303.00 |
303.00 |
303.00 |
|
|
|
|
|
|
|
$25,267.18 |
$13,551.17 |
$16,372.35 |
|
|
|||
|
1999 |
|||
|
|
REPLY |
APPELLANT |
|
|
|
|
|
|
|
Vince |
$1,347.80 |
$ 850.00 |
$1,010.85 |
|
Daved |
730.00 |
617.50 |
617.50 |
|
Kevin |
7,944.29 |
5,058.34 |
5,958.22 |
|
Stan |
200.00 |
200.00 |
200.00 |
|
James |
1,461.00 |
711.00 |
1,095.75 |
|
Kalvin |
17,480.08 |
8,580.14 |
8,580.14 |
|
|
|
|
|
|
|
$29,163.17 |
$16,016.98 |
$17,462.79 |