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Docket: 2002-2994(EI) |
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BETWEEN: |
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WRAY AGENCIES LTD., |
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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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Appeal heard on common evidence with the appeal of Wray Agencies Ltd. (2002-2995(CPP)) on March 12, 2003 at Saskatoon, Saskatchewan
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Before: The Honourable Deputy Judge D.W. Rowe |
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Appearances: |
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Counsel for the Appellant: |
Catherine A. Sloan Violet Paradis (Articling Student) |
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Counsel for the Respondent: |
Lyle Bouvier |
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JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 27th day of June 2003.
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"D.W. Rowe" |
D.J.T.C.C.
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Citation: 2003TCC428 |
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Date: 20030627 |
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Docket: 2002-2994(EI) 2002-2995(CPP) |
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BETWEEN: |
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WRAY AGENCIES LTD., |
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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
ROWE, D.J.T.C.C.
[1] The appellant appeals from two decisions - both dated April 22, 2002 - issued by the Minister of National Revenue (the "Minister"). The Minister decided the employment of William Skene (the worker) with Wray Agencies Ltd. (Agencies or payor) from July 7 to September 2, 2000 and from July 6 to September 20, 2001 constituted insurable employment because Skene was employed under a contract of service pursuant to the relevant provisions of the Employment Insurance Act (the "Act"). The Minister also issued a decision pursuant to the relevant provisions of the Canada Pension Plan (the "Plan") wherein the employment of Skene was held to have been pensionable employment under a contract of service with Agencies. However, the decision issued pursuant to the Plan covered only the period from July 6 to September 20, 2001.
[2] Counsel agreed both appeals would be heard on common evidence.
[3] Scott Wray testified he is President of Wray Agencies Ltd., operating out of Moose Jaw, Saskatchewan. The appellant's sole business is selling hail crop insurance to farmers in the Prairie Provinces. Earlier, Wray had worked for another company engaged in the hail insurance industry until Agencies was formed in 1983. Wray explained that when a claim is reported by a policyholder, Agencies management consults a list of adjusters, chooses a particular individual and contacts that person - usually at his home - to determine whether he is willing to accept the assigned task. Wray stated Skene had contacted Agencies to ascertain whether it had some adjusting work for him since Co-Op Insurance - the other company for which he had been adjusting - was not able to provide him with sufficient work. Wray stated he met with Skene and discussed the remuneration - on a per diem basis - and the reimbursement - by Agencies - of any expenses incurred in relation to lodging, meals, use of a motor vehicle and other costs pertaining to performance of the assigned work. There was no written contract between Agencies and Skene. Once Skene began providing his services to Agencies, Wray stated he did not recall Skene having adjusted any claims for Co-Op Insurance but the arrangement with Agencies allowed Skene to accept work from other companies. Wray referred to a bundle of documents - Exhibit A-1 - containing sheets entitled Independent Adjusters Expense Voucher and photocopies of cheques issued by the appellant to Skene during 2000. A similar bundle of documents - Exhibit A-2 - pertained to adjusting services performed by Skene during 2001. Wray stated Skene sometimes worked with another adjuster, depending on the nature of the crop to be examined for the purpose of determining the extent of damage. In some instances, Skene could request the assistance of a more experienced adjuster - usually working in the same geographical area - to provide guidance and instruction. Wray stated the document - Exhibit A-3 - entitled Hail Adjustment Proof of Loss - was standard throughout the hail crop insurance industry except for some minor differences in format. Once a policyholder submitted a Notice of Loss to the appellant, the process of preparing the necessary paperwork began and an adjuster was assigned to attend the site of the damaged crop. Generally, within the industry, attempts are made to organize an adjuster's schedule to maximize efficiency within a particular geographical area. Wray stated there were some areas in the Prairies in which Agencies had not sold any policies but there were also instances where farmers had chosen to insure their crops - against damage occurring during a growing season - with more than one company. Wray stated that during the years Agencies had carried on business, there was never any intention to create any contract of employment with any crop insurance adjuster and no adjuster had ever been fired. Wray stated a ruling - Exhibit A-4 - was received from Canada Customs and Revenue Agency (CCRA) - dated November 29, 2001 - advising Agencies that Skene's employment was considered to have been both insurable and pensionable. An appeal - Exhibit A-5 - was directed to the Minister and, in the course of that process, the questions to the worker posed within a Questionnaire - Exhibit A-6 - were answered by way of a separate document filed as Exhibit A-7. The Minister confirmed the earlier ruling in a letter - Exhibit A-8 - but did not deal with the period from July 7, 2000 to September 2, 2000 when deciding the issue of pensionable employment pursuant to the Plan. Wray stated he is the Managing General Agent for Palliser Insurance Corporation and had the responsibility to issue cheques to policyholders in payment of losses. The cheques were drawn on a trust account into which premiums - received from the sale of hail insurance policies - had been deposited.
[4] In cross-examination, Scott Wray stated that each adjuster was paid the standard sum - within the industry - of 37 cents per kilometre as compensation for using their own motor vehicle. In those circumstances where the services of a more experienced crop adjuster might be required, Wray stated Skene was not required to bear any cost associated with that decision because - like other adjusters - it was recognized that while he may have had a great deal of overall experience, he might not have adjusted damage in relation to a particular type of crop. Wray stated Skene was paid a per diem fee and related expenses to attend the annual conference for hail damage crop adjusters.
[5] In re-examination, Wray stated neither Skene nor any other adjuster providing services to Agencies was required to attend any such conference but if they chose to participate, they could bill Agencies for one day at the usual rate or, as some had done, to issue an invoice based on one-half day.
[6] Counsel for the appellant submitted the worker has been compensated for his knowledge, skill and time spent in the course of adjusting crop damage claims. Since there was no doubt both Skene and the appellant had premised their working relationship on the basis the worker was an independent contractor, counsel submitted the evidence did not disclose any factors capable of detracting from the validity of their intention. Counsel referred to the testimony of Scott Wray in which he made it clear that Skene - an experienced adjuster - was free to work for other parties. Counsel submitted Skene did not require many tools in order to perform his services and, even though he was paid a per diem fee by the appellant, was still capable of managing his own schedule in order to maximize efficiency and permit generation of additional income. As part of the fee for services rendered, the appellant reimbursed Skene and other adjusters for out-of-pocket lodging and food expenses and paid a set amount per kilometre for use of a private motor vehicle. As a result, counsel conceded this arrangement reduced the risk of any loss but argued that within the total context of the working relationship under examination, this facet represented a normal term or condition of the contract entered into by the parties.
[7] Counsel for the respondent submitted it was evident the occupation of crop damage adjuster within the hail crop industry was somewhat unusual. Under the conditions of the working relationship, it was nearly impossible for Skene to have occurred any loss as he was reimbursed for all expenses and received payment for his services - at a flat daily rate - set by the appellant. Overall, counsel submitted the evidence did not disclose the existence of a commercial enterprise being operated by the appellant during the relevant period.
[8] The Supreme Court of Canada - in a recent decision - 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 - (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 worker had already been a qualified crop insurance adjuster prior to contacting the appellant for the purpose of obtaining some adjusting assignments. Rather than merely being assigned a particular crop damage adjustment, he was contacted by Scott Wray or another person at Agencies and invited to undertake one or more adjusting jobs generally clumped together within a limited geographical area. At the site of the damage, the worker was free to use his own skills and experience in order to arrive at a conclusion concerning the extent of the hail damage. If he was not familiar with the specific crop under examination, he was able to contact Agencies and derive the benefit - free of charge - of the services of another adjuster who would attend at the policyholder's farm in order to assess the situation and subsequently offer his opinion. Often, Skene would prepare the Proof of Loss form - Exhibit A-3 - as a matter of courtesy since that document was a prerequisite to the farmer receiving any payment from the insurer. Even the matter of attending the annual industry conference was optional and if Skene - or any other adjuster - chose to participate in the relevant sessions pertaining to adjusting crop loss they could bill Agencies for either one-half day or a full day at the established rate. In certain assumptions found at subparagraphs 13(h) to13(k) inclusive, of the Reply to the Notice of Appeal (Reply), the Minister accepted that Skene was able to set his own hours of work, was not required to report to the appellant, was free to accept or reject work offered to him by the appellant and was able to work for other insurance companies when the appellant did not have any adjusting services for him to perform. The appellant conceded that during the training period Skene was accompanied and supervised by a senior adjuster. However, there was no evidence provided concerning the length of said period - in 2000 - but the fact Skene had previous experience leads one to infer that it was not only relatively short in duration but directed mainly towards learning the method of completing the paperwork used by Agencies to process claims.
Provision of equipment and/or helpers
[11] As discussed above, if any assistance was required in the process of adjusting a particular loss, the worker was not obligated to incur any expense in that regard. Instead, Agencies contacted another adjuster and dispatched that individual to assist Skene in arriving at an appropriate conclusion pertaining to the extent of the loss. The equipment required to carry out the task consisted only of pens, paper, a clipboard, and a motor vehicle in order to travel to the various farms where crop loss had occurred. The appellant provided Skene with a manual required to be utilized by adjusters in order to calculate the amount of crop loss. The appellant also provided Skene with worksheets and a briefcase. Provided the quality of the adjusting service was adequate, Skene was able to retain the services of others to assist him in carrying out his tasks and would have been responsible for payment other than in the circumstance earlier discussed, although he had not exercised this option during the relevant periods. It was agreed Skene had completed the unsigned Questionnaire - Exhibit A-7 - wherein he indicated he was responsible for repairs to his vehicle and had equipped himself with appropriate all-weather clothing.
Degree of financial risk and responsibility for investment and management
[12] The worker in the within appeals undertook each adjusting assignment with the knowledge he would be paid the daily rate in the sum of $130 in 2000 and $140 in 2001. Work-related expenses were reimbursed by the appellant and a per-kilometre allowance was paid to compensate for use of Skene's vehicle. As counsel for the respondent pointed out, rather than attempting to build a variable flat fee structure based on the location of the property to be inspected, the adjusters were reimbursed their travel costs including those pertaining to the operation of a vehicle. Skene had the responsibility of managing his own time and maintaining whatever minimal in-home office facilities were required in order to perform his services adequately.
Opportunity for profit in the performance of tasks
[13] The worker was paid at a fixed daily rate and did not incur any additional expenses. The opportunity to earn more revenue was based on the willingness to accept more work and/or to be efficient in the manner by which the adjusting assignments were carried out so that during the course of the short working season more claims could be adjusted. Most professionals or fee-for-service providers perform tasks in return for a fixed fee together with related expenses. Sometimes, the fee is set by the provider and the client is free to accept or reject that tariff. In other circumstances, remuneration may be established through negotiation but in a substantial number of instances, a level of government or a large corporation within an established industry, merely offers a fixed sum for a particular service and invites submissions from persons willing to undertake the work at the stated rate. Prior to accepting the work, an individual will have calculated whether the remuneration offered is sufficient to cover the direct and indirect costs of operating a business.
[14] In the case of Canadian Fitness and Lifestyle Research Institute v. M.N.R., [1990] T.C.J. No. 1020, Judge Mogan, T.C.C., considered the status of workers supplying services to a non-profit organization funded mainly by the federal government. The appellant in that case had engaged 82 fitness appraisers for a period of approximately two months to conduct a fitness survey of a pre-selected group of Canadians and had entered into agreements with the workers on the basis they would be independent contractors. At pp. 6 - 8 of his reasons Judge Mogan stated:
In the circumstances outlined above, I am required to decide whether the fitness appraisers were employees of the Appellant or independent contractors. In Moose Jaw Kinsmen Flying Fins Inc. v. M.N.R., 88 DTC 6099, the Federal Court of Appeal confirmed that the definitive authority on this issue is the decision of that Court in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025. In the Wiebe Door case, there was reference to an earlier decision in which Lord Wright had described a fourfold test comprising (1) control; (2) ownership of the tools; (3) chance of profit; and (4) risk of loss. MacGuigan J. stated at page 5029:
... 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.
When I view the Appellant's 1988 survey with emphasis on "the combined force of the whole scheme of operations", I conclude that the fitness appraisers were independent contractors and not employees. On the first two tests, I find that the Appellant owned the equipment (i.e. tools) but had virtually no control over the fitness appraisers. Because the 1988 survey was national in scope, statistical accuracy required all appraisers to use standard equipment. There were minimal instructions given to the appraisers: locate selected families and book appointments; ensure that the questionnaire is completed; perform the physical tests if, in the opinion of the appraiser, the subject was able; complete all tests within two months; and maintain information contact with the Regional Supervisor. The appraisers had very wide discretion as to how they would follow these instructions. The Regional Supervisor had no control over the appraisers but would know if certain appraisers were not performing the required tests.
On the third and fourth tests, I find that there was little chance of profit or risk of loss in an accounting sense because the fitness appraiser received a progress payment every two weeks over the two-month period of the survey and all travel expenses were reimbursed. Although a fitness appraiser would not earn a profit or suffer a loss in an accounting sense by taking on this engagement, there was an opportunity to consolidate appointments and, by performing two or three family surveys on selected days, a team of appraisers could free up other days when they would be paid the per diem fee of $96.15 for performing little or no work. In other words, a team of appraisers could work hard; finish early; and continue to draw the per diem fee for the balance of the two months. There is a profit incentive in this kind of arrangement which is different from the production incentive in piece work.
The overall scheme of the 1988 survey permitted each fitness appraiser to retain any prior employment or business through the two-month survey period. The training period was only one week and debriefing was only one day. There were no fixed hours. Indeed, because it was a "family" survey, the evidence indicated that most surveys were in fact done in the evening or on weekends apart from the normal working hours of a five-day week.
It is significant that the three fitness appraisers who testified at the hearing had all maintained their outside employment or other commercial engagements throughout the two-month period when they were doing the 1988 survey. It is also significant that the costs of the four prior qualifications were absorbed by the individual appraisers: personal liability insurance; being a CFA or RFA; having a CPR certificate; and having automobile business insurance. In an ordinary employer/employee relationship, I would expect the employer to pay for one or both kinds of insurance. In my opinion, there was no employer/employee relationship between the Appellant and the 82 fitness appraisers. The appeal is allowed.
[15] In the case of Ariana Appraisals Inc. v. Canada (Minister of National Revenue - M.N.R),. [1994] T.C.J. No. 303 Judge Teskey, T.C.C., held that a real estate appraiser, although requiring periodic supervision from an accredited appraiser as part of her course of study, was an independent contractor because she worked from her home, used her own equipment, set her own hours and invoiced the company for appraisals done. In addition, she was free to work for other companies at the same time.
[16] In the Questionnaire - Exhibit A-7 - with respect to the question whether he considered himself to be an employee or self-employed while working for Agencies, Skene responded as follows:
Self-employed - Could work hours of my choice, could work for other companies, could choose to work or take time off, supplied my own working tools.
[17] In the case of Minister of National Revenue v. Emily Standing, [1992] F.C.J. No. 890 Stone, J.A. 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 ...
[18] In Wolf v. Canada, 2002 DTC 6853, the Federal Court of Appeal - post-Sagaz - considered the income tax appeal of a mechanical engineer specializing within the aerospace industry. The question arose whether that appellant was an employee of Canadair or an independent contractor. Analysis of the various factors to be taken into account in deciding this issue was based upon the relevant articles of the Civil Code of Québec in addition to the applicable jurisprudence up to and including the decision of the Supreme Court of Canada in Sagaz, supra. For purposes of the within appeals, the interesting aspect of the decision of the Federal Court of Appeal in Wolf concerns the weight to be given to the intent of the parties in determining the characterization of their working relationship. The discussion is significant in that the caveat inherent in the words of Stone, J.A. in Standing, supra, have served to remind parties they cannot merely affix a label to their working situation and expect it to stick unless the overall context otherwise permits. Prior to concluding that the engineer's relationship with Canadair had been that of an independent contractor, Desjardins, J.A. - at paragraph 93 of her reasons for judgment - stated:
Both Canadair's work and the appellant's work were integrated in the sense that they were directed to the same operation and pursued the same goal, namely the certification of the aircraft. Considering, however, the fact that the integration factor is to be considered from the perspective of the employee, it is clear that this integration was an incomplete one. The appellant was at Canadair to provide a temporary helping hand in a limited field of expertise, namely his own. In answering the question 'whose business is it?' from that angle, the appellant's business stands independently. Once Canadair's project was completed, the appellant was, so to speak, ejected from his job. He had to seek other work in the market place. He could not stay at Canadair unless another project was under way.
[19] Décary, J.A. - concurring in the result - commented at paragraph 115 of his reasons:
As a starting point, I would like to quote the very first paragraph of an article written by Alain Gaucher (A Worker's Status as Employee or Independent Contractor, 1999 Conference Report of Proceedings of the 51st Tax Conference of the Canadian Tax Foundation, p. 33.1):
In an ever-changing Canadian economy, the legal relevance of a worker's status as independent contractor or employee continues to be important. The issues relating to employment status will only increase in importance as employers continue to move toward hiring practices that favour independent contractors and a greater number of individuals enter or re-enter the work force as independent contractors.
[20] At paragraphs 117 to 120, inclusive, Décary, J.A. continued as follows:
The test, therefore, is whether, looking at the total relationship of the parties, there is control on the one hand and subordination on the other. I say, with great respect, that the courts, in their propensity to create artificial legal categories, have sometimes overlooked the very factor which is the essence of a contractual relationship, i.e the intention of the parties. Article 1425 of the Civil Code of Quebec establishes the principle that ' [t] he common intention of the parties rather than the adherence to the literal meaning of the words shall be sought in interpreting a contract'. Article 1426 C.C.Q. goes on to say that ' [i] n interpreting a contract, the nature of the contract, the circumstances in which it was formed, the interpretation which has already been given to it by the parties or which it may have received, and usage, are all taken into account'.
We are dealing here with a type of worker who chooses to offer his services as an independent contractor rather than as an employee and with a type of enterprise that chooses to hire independent contractors rather than employees. The worker deliberately sacrifices security for freedom ('the pay was much better, the job security was not there, there were no benefits involved as an employee receives, such as medical benefits, pension, things of that nature...' Mr. Wolf's testimony, Appeal Book, vol. 2, p. 24). The hiring company deliberately uses independent contractors for a given work at a given time ('it involves better pay with less job security because consultants are used to fill in gaps when local employment or the workload is unusually high, or the company does not want to hire additional employees and then lay them off. They'll hire consultants because they can just terminate the contract at any time, and there's no liabilities involved', ibid., p. 26). The hiring company does not, in its day-to-day operations, treat its consultants the same way it treats its employees (see para. 68 of Madam Justice Desjardins's reasons). The whole working relationship begins and continues on the basis that there is no control and no subordination.
Taxpayers may arrange their affairs in such a lawful way as they wish. No one has suggested that Mr. Wolf or Canadair or Kirk-Mayer are not what they say they are or have arranged their affairs in such a way as to deceive the taxing authorities or anybody else. When a contract is genuinely entered into as a contract for services and is performed as such, the common intention of the parties is clear and that should be the end of the search. Should that not be enough, suffice it to add, in the case at bar, that the circumstances in which the contract was formed, the interpretation already given to it by the parties and usage in the aeronautic industry all lead to the conclusion that Mr. Wolf is in no position of subordination and that Canadair is in no position of control. The 'central question' was defined by Major, J. in Sagaz as being 'whether the person who has been engaged to perform the services is performing them as a person in business on his own account'. Clearly, in my view, Mr. Wolf is performing his professional services as a person in business on his own account.
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.
[21] In his brief judgment - also concurring in the result - Noël, J.A. considered the matter of intention of the parties and his reasons are reproduced below:
I too would allow the appeal. In my view, this is a case where the characterization which the parties have placed on their relationship ought to be given great weight. I acknowledge that the manner in which parties choose to describe their relationship is not usually determinative particularly where the applicable legal tests point in the other direction. But in a close case such as the present one, where the relevant factors point in both directions with equal force, the parties' contractual intent, and in particular their mutual understanding of the relationship cannot be disregarded.
My assessment of the applicable legal tests to the facts of this case is essentially the same as that of my colleagues. I view their assessment of the control test, the integration test and the ownership of tool tests as not being conclusive either way. With respect to financial risk, I respectfully agree with my colleagues that the appellant in consideration for a higher pay gave up many of the benefits which usually accrue to an employee including job security. However, I also agree with the Tax Court Judge that the appellant was paid for hours worked regardless of the results achieved and that in that sense he bore no more risk than an ordinary employee. My assessment of the total relationship of the parties yields no clear result which is why I believe regard must be had to how the parties viewed their relationship.
This is not a case where the parties labelled their relationship in a certain way with a view of achieving a tax benefit. No sham or window dressing of any sort is suggested. It follows that the manner in which the parties viewed their agreement must prevail unless they can be shown to have been mistaken as to the true nature of their relationship. In this respect, the evidence when assessed in the light of the relevant legal tests is at best neutral. As the parties considered that they were engaged in an independent contractor relationship and as they acted in a manner that was consistent with this relationship, I do not believe that it was open to the Tax Court Judge to disregard their understanding (Compare Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 at 170).
[22] It is apparent a new wind is blowing through the musty repositories of traditional jurisprudence concerning the method by which to analyze circumstances relevant to the determination of working relationships. As a consequence, the former employer/employee relationship - which drew heavily upon precepts inherent in the bond between master and servant - has undergone a fresh examination in an effort to catch up to the realities of the new workplace and to recognize the fresh face of a modern workforce that has learned how to adapt to unpredictable demands for specialized services - often, in the short-term - within the new rules of engagement applicable to a highly competitive global marketplace.
[23] In the within appeals, one must bear in mind that Agencies sells insurance against damage to crops caused by hail. The hail season - thankfully - is short and during some growing seasons it may not hail much - if at all - on most of those crops that have been insured by the particular insurance company on whose behalf Agencies sells the policies. As stated by Wray in the course of his testimony, there are some areas within the Prairie Provinces where Agencies will not have sold any policies in a particular year. In addition, if it does not hail upon the crops of those farmers who have chosen to purchase insurance from the appellant, there will be no need for adjusters - like Skene - to perform any services. The business of Agencies is substantially greater and more complex than adjusting crop loss and operates year-round. As a result, the working relationship between the hail insurance industry and its adjusters, who are able to accept or reject adjusting assignments during a short summer period, is not conducive to characterization of a traditional employer/employee relationship. In the within appeals, Skene was not like a fireman at an airport who may never have to put out a fire on the runway but has to be at work each day, in uniform, ready to roll in the event of trouble. In the interim, there are a hundred things to accomplish in order to maintain that state of readiness. In contrast, Skene was not required to stand by nor was he compelled to accept any assignment should he receive a call from Agencies. If he accepted certain adjusting jobs, he could work 7 days per week including some evenings. He could choose whether to travel to other areas within Saskatchewan or to neighbouring provinces and was free to set up his own appointments with farmers. He was able to organize his own schedule to the point where he could advise the appellant he would not accept assignments during a specified period. At the beginning of the growing season, the fixed daily amount for adjusting services was established by Agencies and Skene was free to accept that rate or not. In 2001, the per diem remuneration had been increased to $140 from $130 the previous year.
[24] I return to the issue - identified as the central question in the judgment of Major, J. in Sagaz, supra - whether the person who is performing the services is doing so as an individual in business on his own account. There is very little to suggest that Skene was not ready, willing, able, and content to provide his services to the appellant on that very basis. There is no jarring incongruity within the overall circumstances of the working relationship under analysis that would cause one to question the legitimacy of that characterization by both the worker and the payor in the within appeals. Not every aspect of each commercial enterprise can be made to fit the traditional mould. In those circumstances where the usual indicia are ambiguous and do not favour a clear characterization of working status - when properly considered in a global sense - and, having regard to the context in which the services were provided, including an appreciation of any specialized aspect of the relevant activity, business or industry, then the intention of the parties - provided their subsequent conduct was consistent with their original expressed intent - should be accorded deference during any subsequent analysis of their working relationship.
[25] In the within appeals, the evidence supports the proposition that there were two businesses operating, one on the part of Agencies - in a much broader sense - and the other on the part of Skene who was offering his services as a skilled crop loss adjuster knowledgeable in processing the specific documentation utilized by Agencies and the insurer as it pertained to processing a claim for crop damage (See Precision Gutters Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2002] F.C.J. No. 771).
[26] Both appeals are allowed. Each decision of the Minister dated April 22, 2002, issued pursuant to the Act and the Plan, respectively, will be varied to find:
- that William Skene was not engaged in insurable employment with Wray Agencies Ltd. from July 7, 2000 to September 2, 2000 nor from July 6, 2001 to September 20, 2001, because he was providing his services as an independent contractor.
- that William Skene was not engaged in pensionable employment with Wray Agencies Ltd. from July 6, 2001 to September 20, 2001, because he was providing his services as an independent contractor.
Signed at Sidney, British Columbia, this 27th day of June 2003.
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"D.W. Rowe" |
D.J.T.C.C.
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CITATION: |
2003TCC428 |
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COURT FILE NO.: |
2002-2994(EI) and 2002-2995(CPP) |
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STYLE OF CAUSE: |
Wray Agencies Ltd. and M.N.R. |
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PLACE OF HEARING: |
Saskatoon, Saskatchewan |
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DATE OF HEARING: |
March 12, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Deputy Judge D.W. Rowe |
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DATE OF JUDGMENT: |
June 27, 2003 |
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APPEARANCES: |
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Counsel for the Appellant: |
Catherine A. Sloan Violet Paradis (Articling Student) |
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Counsel for the Respondent: |
Lyle Bouvier |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Catherine A. Sloan |
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Firm: |
McKercher McKercher & Whitmore Saskatoon, Saskatchewan |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |