Tax Court of Canada Judgments

Docket: 2003-4586(EI)

BETWEEN:

BARCLAY LUTZ,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent, and BERNHARD FEHR, Intervenor.

____________________________________________________________________

Appeal heard together on common evidence with the appeal of Barclay Lutz

(2003-4587(CPP)) on April 21, 2004 at Lethbridge, Alberta

Before: The Honourable Justice D.W. Beaubier
Appearances:
For the Appellant:	The Appellant himself
Counsel for the Respondent:	Belinda Schmid
For the Intervenor:	The Intervenor himself

____________________________________________________________________

JUDGMENT

The appeal is dismissed and the decision of the Minister is confirmed is accordance with the attached Reasons for Judgment.

Signed at Saskatoon, Saskatchewan this 29th day of April 2004.

"D.W. Beaubier"

Beaubier, J.

Docket: 2003-4587(CPP)

BETWEEN:

BARCLAY LUTZ,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent, and BERNHARD FEHR, Intervenor.

____________________________________________________________________

Appeal heard together on common evidence with the appeal of Barclay Lutz

(2003-4586(EI)) on April 21, 2004 at Lethbridge, Alberta

Before: The Honourable Justice D.W. Beaubier
Appearances:
For the Appellant:	The Appellant himself
Counsel for the Respondent:	Belinda Schmid
For the Intervenor:	The Intervenor himself

____________________________________________________________________

JUDGMENT

The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.

Signed at Saskatoon, Saskatchewan this 29th day of April 2004.

"D.W. Beaubier"

Beaubier, J.

Citation: 2004TCC319

Date: 20040429

Docket: 2003-4586(EI) 2003-4587(CPP)

BETWEEN:

BARCLAY LUTZ,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent, and BERNHARD FEHR, Intervenor.

____________________________________________________________________

REASONS FOR JUDGMENT

Beaubier, J.

[1]      These appeals were heard together on common evidence by consent of the parties. Barclay Lutz and Bernhard Fehr each testified on his own behalf.

[2]      The particulars of the appeals are contained in the Reply to the Notice of Appeal in 2003-4586(EI); paragraphs 3 to 7 inclusive read:

3.          By letter dated April 11, 2003 the Calgary Tax Service Office issued a ruling that the Worker was in insurable employment with the Appellant.

4.          By letter dated July 8, 2003, the Appellant appealed to the Minister for a reconsideration of the ruling.

5.          In response to the appeal, the Minister decided that the Worker was employed under a contract of service with the Appellant for the period of November 14, 2001 to January 8, 2003.

6.          In so deciding, the Minister relied on the following assumptions of fact:

(a)         the Appellant's operation included the processing, sale and delivery of hay;

(b)         the Worker was hired as a driver;

(c)         the Worker was normally paid by commission based on a percentage of the load;

(d)         the Worker was also paid an hourly rate ($12.00/hour) at times;

(e)         the Appellant determined the Worker's wage rates;

(f)          the Appellant paid the Worker;

(g)         the Appellant provided advances to the Worker;

(h)         the majority of the cheques issued by the Appellant to the Worker indicated "wages" or "advance"

(i)          the Appellant set the Worker's start and finish times and hours of work;

(j)          the Appellant exerted control over the Worker;

(k)         the Appellant obtained the clients;

(l)          the Worker was in contact with the Appellant on a daily basis;

(m)        the Appellant assigned/dispatched work to the Worker;

(n)         the Appellant provided the Worker with pick up and delivery instructions;

(o)         the Appellant made the decisions with regards to truck repairs;

(p)         the Appellant set the product prices;

(q)         the Worker was required to perform his services personally;

(r)         the Worker did not provide his own helpers;

(s)         the Worker was required to keep an invoice book and a logbook in the Appellant's name;

(t)          the Worker required the Appellant's approval for any leave;

(u)         the Worker did not work for others while performing services for the Appellant;

(v)         the Appellant provided all of the tools and equipment required including the truck, trailer, loader and tools;

(w)        the Worker did not provide any tools or equipment;

(x)         the Worker had no financial investment in the Appellant's business;

(y)         the Worker did not have a chance of profit or a risk of loss;

(z)         the Worker did not have a trade name;

(aa)       the Worker did not enter into a rental or lease agreement with the Appellant;

(bb)       the Appellant paid for all operating expenses including fuel, oil, washes, repairs, toll charges, insurance and licenses;

(cc)       the Appellant provided the Worker with fuel cards;

(dd)       the Appellant reimbursed the Worker for cell phone expenses, and

(ee)       the Worker did not charge the Appellant G.S.T.

B.         ISSUES TO BE DECIDED

7.          The issue is whether the Worker was employed under a contract of service with the Appellant during the period November 14, 2001 to January 8, 2003.

[3]      None of the assumptions were refuted by the evidence.

[4]      Using the criteria enunciated in Wiebe Door Services Ltd. v. M.N.R., 87 D.T.C. 5025, the Court finds:

1.        Control

Mr. Fehr was under the control of Mr. Lutz at all times. There was one occasion when Mr. Fehr hauled an item that he bought from a Lutz customer back to his home on Lutz's truck. He was hired pursuant to Mr. Lutz's ad for "Drivers" in the Lethbridge Herald, for "24% of gross pay. Weekends off." (Exhibit A-1).

2.        Profit and Loss

The Appellant was paid as advertised, but complained in detail about being paid amounts of less than 24% in percentages down to about 20%. They quarrelled frequently about these shortages. Eventually Mr. Lutz fired Mr. Fehr due to these increasing quarrels and an allegation that Mr. Fehr did not return a truck to the Lutz farm on a return journey late one night when he simply drove home to bed.

3.        Tools

Were all owned by Mr. Lutz.

4.        Integration

Mr. Fehr was simply a truck driver for Mr. Lutz who was fully integrated into Mr. Lutz's business. The business was owned and operated by Mr. Lutz.

[5]      The appeals are dismissed.

Signed at Saskatoon, Saskatchewan this 29th day of April 2004.

"D.W. Beaubier"

Beaubier, J.

CITATION:

2004TCC319

COURT FILE NO.:

2003-4586(EI) and 21003-4587(CPP)

STYLE OF CAUSE:

Barclay Lutz v. M.N.R.

PLACE OF HEARING:

Lethbridge, Alberta

DATE OF HEARING:

April 21, 2004

REASONS FOR JUDGMENT BY:

The Honourable Justice D.W. Beaubier

DATE OF JUDGMENT:

April 29, 2004

APPEARANCES:

Counsel for the Appellant:

Counsel for the Respondent:

Belinda Schmid

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada