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Citation: 2007TCC547
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Date: 20070914
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Dockets: 2006-1455(EI)
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2006-3144(EI)
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2006-1456(CPP)
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2006-3143(CPP)
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BETWEEN:
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DEAN LANG and SHARON LANG,
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Appellants,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Bowman, C.J.
[1] These
appeals are from decisions and assessments made by the Minister of National
Revenue under the Canada Pension Plan and the Employment Insurance
Act, that certain workers engaged by the appellants were engaged in
pensionable and insurable employment by the appellants.
[2] Dean
and Sharon Lang, the appellants, carried on the business in Saskatchewan of furnace and duct cleaning under the name of Dun‑Rite
Vac (“Dun-Rite”). They engaged the services of the workers who worked at houses
where Dun‑Rite’s services were retained.
[3] The
appellants’ position is that the workers were independent contractors and were
not employed under a contract of service.
[4] Each
case in which the question of employee versus independent contractor arises
must be determined on its own facts. The four components in the composite test
enunciated in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025 and 671122
Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, must
each be assigned their appropriate weight in the circumstances of the case.
Moreover, the intention of the parties to the contract has, in recent decisions
of the Federal Court of Appeal, become a factor whose weight seems to vary from
case to case. (The Royal Winnipeg Ballet v. M.N.R., 2006 FCA 87; Wolf
v. Canada, [2002] 4 FCA 96; City Water
International Inc. v. M.N.R., 2006 FCA 350).
[5] The
Notices of Appeal substantially are the same in all of the appeals and they set
out the facts as they were presented in evidence. The Notice of Appeal in appeal
number 2006‑3143(CPP) reads as follows:
1. The Appellants are husband and wife owing equipment for the
vacuuming of furnace and duct work in residences and other buildings.
2. The Appellants, while living in Hudson Bay, Saskatchewan, go from town to town,
village to village, and door to door seeking persons wishing to have their
furnace and ducts vacuumed. This is a selling job which may require many
interviews for each customer found.
3. The Appellants have a list of persons who are interested in doing
the work once the customers are located by the Appellants, and before the
Appellants go to a town or village, they determine who wants to do the work in
that town or village, when they would do the work, and what appointments they
wish the Appellants to make for them. It normally takes about 2 hours to vacuum
the furnace and ducts of a residence, and to have it worth the trip by the
person who will be doing the work, an attempt is made to arrange three or four
appointments each day.
4. Once appointments are made, the person or persons who will be doing
the work are given the dates and times, and they are responsible to deal with
the customer from that point onward.
5. The Appellants supply the use of the vacuum equipment to the person
doing the work, and if transportation is necessary, the Appellants will make
their truck available and supply the fuel for the truck. The Appellants have a
camper trailer which they use in going town to town, and if it is necessary for
the person doing the work to spend a night in the town where the work is being
done, they are given the use of the camper trailer. If the camper trailer is
not available, the Appellants will, when same is available, pay for a room for
the person doing the work.
6. The person responsible for doing the work may do it themselves or
have someone else do the work for them, in which case they pay the worker.
7. The person responsible for doing the work has the obligation to
satisfy the customer, and if rectification is needed, the person responsible
for doing the work bears the costs of satisfying the customer.
8. The Appellants supply or rent their vacuum equipment to the person
doing the work, and if same gets damaged, the person doing the work is
responsible for costs of repairs.
9. The person doing the work supplies any tools he may need.
10. The arrangement between the Appellants and the people who do the
work, with the exception of one Monty Hagan, is the same.
(i) The Appellants quote the cost to the customer calculated by
allowing $40.00 for the vacuum equipment, $125.00 for a furnace, $55.00 for the
mains, and $5.00 for each register in the building. There are usually between
10 and 12 registers in a residence. The quote for a residence with 12 registers
would be $240.00.
(ii) The quoted cost is divided between the Appellants and the
person doing the work, with the Appellants getting $40.00 for the use of the
equipment, the person doing the work 25% of the balance of the charge, and the
Appellants the balance. With a $240.00 charge, the person doing the work gets
$50.00 and the Appellants $190.00. The person who does the work collects from
the customer and turns the collection over to the Appellants who divide same
every two weeks.
11. Once an appointment is arranged by the Appellants with a customer
they have no further involvement. They do not supervise the work or whoever is
doing the work.
12. The persons who in 2004 and 2005 did the work are those named as
being held to be employees of the Appellant.
13. In the case of Monty Hagan, he employs persons to find customers and
pays those persons. He normally employs the workers who do the work and pays
them. The Appellants supply the vacuum equipment. Monty Hagan takes care
of his own transportation needs and bears the cost of same. The cost quoted by
him is the same as set forth in section 10(i). The division of the cost
between Monty Hagan and the Appellants is $40.00 to the Appellants for the
vacuum equipment, 25% of balance to Monty Hagan for his costs, 25% to the
party doing the work, and the balance to the Appellants. A $240.00 quoted job
would be divided $40.00 to the Appellants for the vacuum equipment plus
$100.00, with $50.00 to Monty Hagan and $50.00 to the worker. The
Appellants have no involvement with the work.
[6] These
facts are substantially correct, except for paragraphs 8 and 9. The
appellants do not rent the vacuum equipment to the workers. They supply the
vacuum equipment and the van. The workers supply small tools such as screwdrivers
or hammers which are needed.
[7] The
Reply to the Notice of Appeal in CPP case (2006-3143) reads as follows:
6. In so deciding as the
Minister did with respect to the Workers, the Minister relied on the following
assumptions of fact:
(a) the Appellant was in the
business of furnace and duct cleaning;
(b) the Appellant operated
under the name “Dun-Rite Vac”;
(c) the
Appellant’s business normally traveled to smaller communities throughout Saskatchewan;
(d) the
Appellant determined and scheduled the locations to be traveled to;
(e) the
Appellant obtained clients (hereinafter “the Clients”) and booked the jobs;
(f) Liebrecht
was the Appellant’s step-son;
(g) the
Workers duties included cleaning furnaces and ducts;
(h) Hagan also
performed sales duties;
(i) Liebrecht
also performed some equipment maintenance;
(j) Embrey was
a furnace cleaner’s helper;
(k) the Workers
worked for the Appellant on a full-time, on‑going basis;
(l) the
Workers did not enter into written contracts with the Appellant;
(m) the Workers
were paid by commission and earned 25% of the job value;
(n) an average
job was worth approximately $240.00, the Appellant deducted $40.00 off the top
and the Workers would receive 25% of the remaining $200.00;
(o) Hagan also
received bonuses;
(p) the Appellant
determined the Workers’ wage rates;
(q) the
Appellant determined the rates charged to the Clients;
(r) Clients’
payments were made to Dun-Rite Vac;
(s) the
Workers submitted Clients’ invoices and payments to the Appellant on a daily
basis;
(t) the
Appellant handled the money, calculated earnings and paid the Workers;
(u) the
Appellant paid the Workers on a regular bi-weekly basis;
(v) the
Workers did not invoice the Appellant;
(w) the
Appellant determined the Workers’ hours and days of work;
(x) the
Workers normally worked as part of a crew, normally three people per crew;
(y) members of
a crew normally traveled together;
(z) the
Appellant scheduled the trips and the Clients;
(aa) the
Appellant set the business operating hours;
(bb) the Workers
normally worked from 8:00AM to 5:00PM, Monday to Friday;
(cc) the
Appellant provided the Workers with direction and instruction;
(dd) the
Appellant set the Workers’ deadlines and priorities;
(ee) the
Appellant determined the work locations;
(ff) the
Appellant assigned work to the Workers;
(gg) the Clients
belonged to the Appellant;
(hh) the Workers
represented the Appellant while performing their duties;
(ii) the
Workers did not replace themselves;
(jj) the
Appellant obtained and paid replacements as required;
(kk) the
Appellant provided training to some of the Workers;
(ll) the
Appellant provided all of the tools and equipment required including the truck,
vacuum equipment, hoses and cleaning tools;
(mm) the Appellant
also provided a camper trailer for the Workers to sleep in;
(nn) the Workers
normally traveled in the Appellant’s vehicle;
(oo) Hagan used
his own vehicle at times;
(pp) the Workers
did not enter into a rental agreement with the Appellant;
(qq) the Workers
did not pay the Appellant for the use of the Appellant’s equipment;
(rr) the
Appellant supplied all of the materials required;
(ss) the
Appellant supplied Hagan with sales flyers;
(tt) the
Appellant paid for hotels as required;
(uu) the Workers
did not incur any expenses in the performance of their duties;
(vv) the Workers
did not have a chance of profit or risk of loss;
(ww) Liebrecht was
dealing with the Appellant at arm’s length;
(xx) the Workers
did not have specific licenses to perform their duties;
(yy) the Workers
did not have trade names or business licenses;
(zz) the Workers
did not have their own liability insurance or WCB;
(aaa) the Workers
were not in business for themselves while performing duties for the Appellant;
(bbb) the Workers
did not charge the Appellant GST, and
(ccc) the Workers’
wages from the Appellant, for the period January 1, 2004 to
August 31, 2005 were as follows:
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2004
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2005
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Brass
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$ 958.00
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$ 5,012.50
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Embrey
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$ 2,084.25
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$ 8,614.55
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Hagan
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$44,363.85
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$14,929.45
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Liebrecht
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$26,080.23
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$16,085.95
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McLaughlin
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$ 1,327.25
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Morton
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$ 2,470.50
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Munro
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$ 4,952.25
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Nesbitt
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$14,212.75
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Pankratz
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$12,865.35
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Peters
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$ 436.00
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Ryan
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$ 2,187.90
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Siggulkow
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$ 7,548.85
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Vitkauskas
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$20,986.10
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$17,631.40
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[8] Many
of the facts assumed are not controversial. Some are argumentative. To the
extent that they are inconsistent with the facts alleged in the Notice of
Appeal I find that the facts stated in the Notice of Appeal have been
established in evidence. What it boils down to is this: the appellants would go
to cities and towns in Saskatchewan and obtain orders for Dun-Rite to clean
the ducts of the customers. They would contact someone on the list of persons
who would be interested in doing the work and would advise that person of the
time and place of the appointment. They would provide the van and vacuum
equipment and transport the workers to the site where the work was to be done.
The workers were free to decline a job if they chose to. They were paid a
percentage of the fee earned by the appellants. They collected the money from
the customers and handed it over to the appellants. If the work was
unsatisfactory or if there was a complaint it was the worker who had to return
and correct the problem at his own expense.
[9] The
appellants regarded the workers as independent contractors and those workers
who testified filed their income tax as self-employed. Joe Vitkauskas saw
himself as self‑employed as did Kris Liebrecht, who regarded himself as a
subcontractor and also filed as self-employed.
[10] I have not dealt separately with Monty Hagan. He was paid a
commission on a different basis and was actively involved in recruiting workers
and soliciting business. The respondent in argument conceded that
Monty Hagan was an independent contractor and so I shall not consider him
any further. From the evidence I think the concession was correctly made.
[11] So, what about the others? The majority of employee versus independent
contractor cases are close. They require a balancing of a variety of factors
and the application of judgment and common sense. In many ways the same type of
approach has to be applied as that described in a very different context by
Lord Pearce in B.P. Australia Ltd. v. Commissioner of Taxation of
the Commonwealth of Australia, [1966] A.C. 224 at 264-5 where he said:
The solution to
the problem is not to be found by any rigid test or description. It has to be
derived from many aspects of the whole set of circumstances some of which may
point in one direction, some in the other. One consideration may point so
clearly that it dominates other and vaguer indications in the contrary
direction. It is a commonsense appreciation of all the guiding features which
must provide the ultimate answer. Although the categories of capital and income
expenditure are distinct and easily ascertainable in obvious cases that lie far
from the boundary, the line of distinction is often hard to draw in border line
cases; and conflicting considerations may produce a situation where the answer
turns on questions of emphasis and degree.
[12] This passage was cited with approval by the Supreme Court of Canada
in M.N.R. v. Algoma Central Railway, [1968] S.C.R. 447. Although it
dealt with the question of capital versus income expenditures, it is apposite
in this type of case as well. No single test is determinative and no mechanical
recitation of the Wiebe Door factors necessarily leads to the right
conclusion. One is tempted to quote what Estey J. said in Johns‑Manville
Canada Inc. v. The Queen, 85 DTC 5373 at 5377:
When one turns to the
appropriate principles of law to apply to the determination of the
classification of an expenditure as being either expense or capital, an
unnerving starting place is the comment of the Master of the Rolls,
Sir Wilfred Greene in British Salmson Arrow Engines Ltd. v.
Commissioner of Inland Revenue (1938), 22 T.C. 29, at p. 43:
. . . there have been ... many
cases where this matter of capital or income has been debated. There have been
many cases which fall upon the borderline: indeed, in many cases it is almost
true to say that the spin of a coin would decide the matter almost as
satisfactorily as an attempt to find reasons . . .
[13] I mentioned earlier that these cases are close. This is illustrated
by the frequency with which the Federal Court of Appeal reverses decisions of
this court on the basis that the wrong factors were applied or that greater
emphasis should have been given to one factor over another. Let us examine some
of the cases that have been decided over the last few years and how the various
factors have been treated in the determination of this type of question. (See
Appendix A)
(a) control
(b) ownership of tools
(c) chance of profit
(d) risk of loss (sometimes (c) and (d) are combined)
(e) integration
Tests (a), (b), (c) and (d) are, according to Wiebe Door, all part
of one single test. Integration is not part of the four‑in‑one test
and it is considered rather difficult to apply. It has never been a basis for
deciding that a person is an employee except in cases in this court that have
been reversed on appeal.
(f) intent
1. Wiebe Door: The Tax Court of Canada was reversed because the
trial judge put too much emphasis on the integration (or organization) test.
The door installers were held by the Federal Court of Appeal to be independent
contractors. The Federal Court of Appeal reiterated the test in Montreal v.
Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161 at 169-170.
In earlier cases a single
test, such as the presence or absence of control, was often relied on to
determine whether the case was one of master and servant, mostly in order to
decide issues of tortious liability on the part of the master or superior. In
the more complex conditions of modern industry, more complicated tests have
often to be applied. It has been suggested that a fourfold test would in some
cases be more appropriate, a complex involving (1) control; (2) ownership of
the tools; (3) chance of profit; (4) risk of loss. Control in itself is not
always conclusive.
[14] What is apparent from Wiebe Door is that the integration or
organization test is of no assistance and is substantially discredited and any
trial judge who relies upon it does so at his or her peril.
[15] One analysis that has remained unscathed is that of Cooke J. which is
referred to in Wiebe Door as follows:
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: [ FOOTNOTE 3 : This test has been widely cited. For example, it was
referred to by all three Court of Appeal judges in Ferguson v. John Dawson
& Partners (Contractors) Ltd., [1976] 3 All E. R. 817, and the two majority
judges, supra, at pp. 824, 831, each described it as 'very helpful.']
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.
2. Sagaz: This case puts the imprimatur of the Supreme Court of
Canada on Wiebe Door.
3. Precision Gutters Ltd. v. M.N.R., 2002 FCA 207, [2002]
F.C.J. No. 771 (QL). The Tax Court of Canada was reversed and the
installers of eavestroughs were held to be independent contractors and not
employees as held by the Tax Court judge.
[16] This case follows the Wiebe Door analysis. It placed a somewhat
different emphasis on the components of the four-in-one test. In paragraphs 14
and 15 the Federal Court of Appeal said:
[14] What
the Tax Court Judge characterized as the fourth ingredient of the four-in-one
test, namely "integration of the alleged employees' work into the alleged
employer's business" is not part of that test but rather has been characterized
as a wholly separate test (the integration test). It originated with Denning
L.J. in Stevenson Jordan and Harrison Ltd. v. MacDonald and Evans [1952]
1 T.L.R. 101. He articulated it in the following way:
One feature which seems
to run through the instances is that, under a contract of service, a man is
employed as part of the business, and his work is done as an integral part of
the business; whereas, under a contract for services, his work, although done
for the business, is not integrated into it but is only accessory to it.
[15] Thus
the Tax Court Judge has confused the four-in-one test with the integration
test. The four criteria of the four-in-one test are (1) the degree or absence
of control exercised by the employer; (2) ownership of the tools; (3) chance of
profit; (4) risk of loss (see Mirichandani v. Canada (Minister of National
Revenue) [2001] F.C.J. 269 and Wiebe Door Services, supra at p. 5028).
And in paragraphs 18, 19 and 20:
[18] Thus
Major J. has indicated that the central question to be decided in cases such as
these is whether the person who has been engaged to perform the services is
performing them as a person in business on his own account or is performing
them in the capacity of an employee. In order to make this determination the
four criteria set out in Wiebe Door are factors to be considered.
[19] While
neither Major J. in Sagaz nor MacGuigan J.A. in Wiebe Door
completely rejected the "integration test", they did find that it
could be difficult to apply.
[20] The Tax
Court Judge quoted from the Market Investigations case and then posed
this question to himself, "whose business is it?" referring to the
instant case. The Tax Court Judge pursued this question under the heading
"Integration" in his reasons, apparently of the view that the question
posed in Market Investigations was part of the integration test. It is
clear from Justice Major's reasons that he did not consider what he referred to
as the "central question" as being related to the integration test.
One significant thing that Precision Gutters did was to put one
more nail in the coffin of the integration test.
4. Wolf v. The Queen, 2002 DTC 6053. In this appeal under the Income
Tax Act, one of the issues was whether the appellant was earning employment
income or business income in Canada. Again, the Tax
Court of Canada’s conclusion that he was earning employment income was reversed
and it was held that he was an independent contractor.
[17] It should be emphasized that the relationship in question was
governed by article 2085 of the Quebec Civil Code. That article reads:
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Art. 2085.
A contract of employment is a contract by which a person, the employee,
undertakes for a limited period to do work for remuneration, according to the
instructions and under the direction or control of another person, the
employer.
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Art.
2085. Le
contrat de travail est celui par lequel une personne, le salarié, s’oblige, pour un
temps limité et moyennant rémunération, à effectuer un travail sous la
direction ou le contrôle d’une autre personne, l’employeur.
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[18] Articles
2098, 2099 and 2100 deal with independent contractors. They read as follows:
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CHAPTER VIII
CONTRACT OF ENTERPRISE OR FOR SERVICES
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CHAPITRE HUITIEME
DU CONTRAT D’ENTREPRISE OU DE
SERVICE
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SECTION I
NATURE AND SCOPE OF
THE CONTRACT
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SECTION I
DE LA NATURE ET DE L’ÉTENDUE DU
CONTRAT
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Art. 2098. A
contract of enterprise or for services is a contract by which a person, the
contractor or the provider of services, as the case may be, undertakes to
carry out physical or intellectual work for another person, the client or to
provide a service, for a price which the client binds himself to pay.
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Art. 2098. Le
contrat d’entreprise ou de service est celui par lequel une personne, selon
le cas l’entrepreneur ou le prestataire de services, s’engage envers une
autre personne, le client, à réaliser un ouvrage matériel ou intellectuel ou à
fournir un service moyennant un prix que le client s’oblige à lui payer.
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Art. 2099. The
contractor or the provider of services is free to choose the means of
performing the contract and no relationship of subordination exists between
the contractor or the provider of services and the client in respect of such
performance.
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Art. 2099.
L’entrepreneur
ou le prestataire de services a le libre choix des moyens d’exécution du
contrat et il n’existe entre lui et le client aucun lien de subordination
quant à son exécution.
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Art. 2100. The
contractor and the provider of services are bound to act in the best
interests of their client, with prudence and diligence. Depending on the
nature of the work to be carried out or the service to be provided, they are
also bound to act in accordance with usual practice and the rules of art,
and, where applicable, to ensure that the work done or service provided is in
conformity with the contract.
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Art. 2100.
L’entrepreneur et le prestataire de services sont tenus d’agir au mieux des
intérêts de leur client, avec prudence et diligence. Ils sont aussi tenus,
suivant la nature de l’ouvrage à réaliser ou du service à fournir, d’agir conformément
aux usages et règles de leur art, et de s’assurer, le cas échéant, que
l’ouvrage réalisé ou le service fourni est conforme au contrat.
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Where they are bound
to produce results, they may not be relieved from liability except by
providing superior force.
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Lorsqu’ils sont tenus du
résultat, ils ne peuvent se dégager de leur responsabilité qu’en prouvant la
force majeure.
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[19] The three
Federal Court of Appeal judges appear to have approached the question from three
different perspectives.
[20] Desjardins J.A.
quoted the Quebec Civil Code and then analyzed the question using the
common law tests formulated in Montreal Locomotive and Sagaz. She
did so on the following basis at page 6861:
[48] In Hôpital Notre‑Dame
de l’Espérance et Théoret v. Laurent, [1978] 1 S.C.R. 605, a case in tort,
the Supreme Court of Canada was called upon to determine whether a medical doctor
was an employee of the hospital where the claiming party had been treated. Pigeon,
J., for the Court, cited with approval André Nadeau, “Traité pratique de
la responsabilité civile délictuelle”, (Montreal: Wilson & Lafleur, 1971)
p. 387, who had observed that “the essential criterion in employer‑employee
relations is the right to give orders and instructions to the employee
regarding the manner in which to carry out his work” (pp. 613‑14).
Pigeon, J. then cited the famous case of Curley v. Latreille, [1929]
S.C.R. 166, where it was noted that the rule was identical on this point to the
common law (ibid, at pp. 613-14).
[49] Consequently, the
distinction between a contract of employment and a contract for services under
the Civil Code of Québec can be
examined in light of the tests developed through the years both in the civil
and in the common law.
[21] Madam
Justice Desjardins, in applying the tests, concluded that control was neutral
and ownership of tools was neutral. She stated:
[94] Non-standard employment
such as the one of the appellant, which emphasizes higher profit coupled with
higher risk, mobility and independence, indicate, in my view, that the
appellant correctly claimed the status of contractor or the provider of
services under articles 2098 of the Civil Code of Québec. This in turn leads to
the conclusion that the appellant provided independent personal services under
article XIV of the Convention.
She
did not mention intent.
[22] Décary
J.A. approached the matter differently. He said at page 6870:
[117] 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”.
[118] 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.
[119] 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.
[120] 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.
[23] Noël J.A.
gave somewhat different reasons:
[122] 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.
[123] 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.
[124] 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).
[125] I would allow the appeal with costs.
[24] I doubt
that it is possible to find one ratio decidendi that would apply to
all three judgments. The three judges agreed that the Tax Court of
Canada judgment could not stand but beyond that I can discern no common thread.
Desjardins J.A. did not refer to intent whereas Décary J.A. held
common intention to be determinative and, if other factors were necessary, lack
of job security, disregard of employee benefits, freedom of choice and mobility
were to be considered. While these factors do not appear to have been mentioned
previously they are certainly factors whose absence or presence I would
consider as significant in the determination of an employer/employee
relationship. Noël J.A. treated intention as a balancing factor if the
traditional Wiebe Door test yielded no conclusive result.
5. Royal
Winnipeg Ballet. Here the Federal Court of Appeal reversed the Tax Court of Canada and held
that the ballet dancers were independent contractors. It would be easy to say,
simplistically, that the ratio decidendi in the majority (Sharlow and
Desjardins JJA) judgment is that despite the trial judge’s finding that
the preponderance of Wiebe Door factors pointed toward an
employer/employee relationship between the dancers and the ballet company, the
common intention of the parties should be determinative. It is not, however, as
simple as that. At page 6332, Sharlow J.A. said:
[62] It is
common for a dispute to arise as to whether the contractual intention professed
by one party is shared by the other. Particularly in appeals under the Canada
Pension Plan and the Employment Insurance Act, the parties may
present conflicting evidence as to what they intended their legal relationship
to be. Such a dispute typically arises when an individual is engaged to provide
services and signs a form of agreement presented by an employer, in which she
is stated to be an independent contractor. The employer may have included that
clause in the agreement in order to avoid creating an employment relationship.
The individual may later assert that she was an employee. She may testify that
she felt coerced into signifying her consent to the written form of the
contract because of financial need or other circumstances. Or, she may testify
that she believed, despite signing a contract containing such language, that
she would be treated like others who were clearly employees. Although the court
in such a case may conclude, based on the Wiebe Door factors, that the
individual is an employee, that does not mean that the intention of the parties
is irrelevant. Indeed, their common intention as to most of the terms of their
contract is probably not in dispute. It means only that a stipulation in a
contract as to the legal nature of the relationship created by the contract
cannot be determinative.
[63] What is
unusual in this case is that there is no written agreement that purports to
characterize the legal relationship between the dancers and the RWB, but at the
same time there is no dispute between the parties as to what they believe that
relationship to be. The evidence is that the RWB, the CAEA and the dancers all
believed that the dancers were self-employed, and that they acted accordingly.
The dispute as to the legal relationship between the dancers and the RWB arises
because a third party (the Minister), who has a legitimate interest in a
correct determination of that legal relationship, wishes to assert that the
evidence of the parties as to their common understanding should be disregarded
because it is not consistent with the objective facts.
[64] In
these circumstances, it seems to me wrong in principle to set aside, as worthy
of no weight, the uncontradicted evidence of the parties as to their common
understanding of their legal relationship, even if that evidence cannot be
conclusive. The judge should have considered the Wiebe Door factors in
the light of this uncontradicted evidence and asked himself whether, on
balance, the facts were consistent with the conclusion that the dancers were
self-employed, as the parties understood to be the case, or were more
consistent with the conclusion that the dancers were employees. Failing to take
that approach led the judge to an incorrect conclusion.
[25] Evans J.A.
dissented. He said at pp. 6336-7:
[98] When a
dispute arises over the proper legal character of a contract, there are good
reasons to attach little if any weight to the parties' understanding of it, or
to their objective in entering into the contract. First, it is difficult to
understand on what basis the parties' view of their contract's legal
characterization is relevant, or how it should be weighed with the objective Wiebe
Door/Sagaz factors. It is one thing to draw an inference about the legal
nature of a contract based on, for example, the factors of control, and risk of
loss and opportunity for profit. It is quite another to draw an inference from
the parties' view of the legal nature of their contract, which is the ultimate question
that the court must decide. It is not a legal characteristic of a contract for
the supply of services that the parties intended to enter that kind of
contract.
[99] Secondly,
the parties' view of the legal nature of their contract is inevitably
self-serving. Parties generally care primarily about their ultimate objective
and only secondarily, if at all, about the legal means of achieving it.
Suppose, for example, that their objective was to be exempt from EI premiums.
The legal means of achieving this is by entering into a contract for the supply
of services. Whether they succeed depends on whether the terms of their
contract and their conduct are more consistent with the indicia of a contract
for the supply of services than of employment. To the extent that they have
thought about it, parties will want to enter into the kind of contract that in
law will enable them to attain their ultimate objective.
[100] Similarly,
the law attaches little or no weight to the fact that the parties' conduct is consistent
with the legal consequences of having entered into a contract for the
supply of services. These consequences may include the payor's exemption from
having to deduct and pay EI premiums and CPP contributions, and the service
provider's obligation to register for and to charge GST. These are the legal
consequences of a contract for the supply of services, not proof of its
existence. The fact that the parties may intend these consequences does not
assist in determining whether they have adopted the legal means of achieving
them, namely, entering into a contract which has the characteristics of a
contract for the supply of services, rather than of employment.
[101] Third,
parties to contracts for the performance of work (to use a neutral term) are often
not in equal bargaining positions. To attribute appreciable weight to a
statement in the contractual document signed by the parties that the contract
is one for the supply of services may disadvantage the more vulnerable party,
who may subsequently say, for example, that she intended the relationship to be
one of employment so that she would be covered by EI.
[102] In the
face of a clear provision in a signed contract that it is a contract for the
supply of services, not a contract of employment, it may be difficult for such
a party to deny that, on an objective analysis, this provision embodied the
parties' common intention, at least in the absence of misrepresentation or
duress. In other words, the vulnerable party is not only bound by the terms of the
contract, but her contractual status and, consequently, her statutory rights,
may also be prejudiced by the stronger party's legal characterization of the
contract.
[103] Fourth,
the legal characterization of a contract may have an impact on third parties,
such as the victim of a tort committed by a service provider in the course of
performing the contract or, as in this case, Revenue Canada. Not to base legal
characterization squarely on the terms of the contract, interpreted
contextually, may jeopardise those interests, and undermine non-voluntary
protective statutory programs, such as EI and CPP.
[104] I am
concerned also about the impact on other dancers with the RWB of a finding
about the contractual status of the dancers in this case. If the understanding
of the dancers is significant to the decision, could the result be different in
the case of another dancer with the RWB who denied entering into his contract
on the understanding that it was a contract for the supply of services? It
seems odd that essentially the same contract could be characterized differently
on this basis.
[105] In my
opinion, the only significant role of the parties' stated intention or
understanding about the legal nature of their contract is as part of the
interpretative context in which the court views the contract in order to
resolve ambiguities and fill in silences in its terms.
[26] City
Water International Inc. In that case the Tax Court of Canada judgment that
the workers were employees was reversed by the Federal Court of Appeal and the
workers were held to be independent contractors.
[27] Malone J.A., after reviewing the traditional Wiebe Door criteria,
concluded that ownership of tools and control pointed toward the workers being
independent contractors whereas the opportunity for profit and degree of
financial risk pointed toward their being employees.
[28] Since the factors considered did not point clearly in either
direction, Malone J.A. said at paragraphs 27 to 31:
[27] In
balancing the above factors, the result of the inquiry is not obvious.
Therefore, it is necessary to determine what weight should be given to the
intention of City Water and the Service Workers at the time of their initial
engagement.
[28] If it
can be established that the terms of the contract, considered in the
appropriate factual context, reflect the legal relationship that the parties
intended, then their stated intention cannot be disregarded (see Royal
Winnipeg Ballet v. Canada (Minister of National Revenue, 2006 FCA 87 at
paragraph 61). Royal Winnipeg was not decided at the time the Judge
rendered his decision.
[29] Royal
Winnipeg is essentially a
re-codification of the law as stated by this Court in Wolf, supra at
paragraph 15. In that case, the issue before this Court was whether Mr.
Wolf was an employee or an independent contractor. Concurring with Desjardins
J.A. in the end result, but on the basis of a different analysis, Noël J.A.
stated at paragraphs 122 to 124:
… 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
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.
…
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.
[30] Thus, the parties’
intention will only be given weight if the contract properly reflects the legal
relationship between the parties (see Royal Winnipeg at paragraph 81).
In this case, there is no written agreement that purports to characterize the
legal relationship between the Service Workers and City Water; however, there
is no dispute between the parties as to what they believe that relationship to
be. The evidence is that both parties believed that the workers were
self-employed and each acted accordingly.
[31] In my
analysis, since the relevant factors yield no clear result, greater emphasis
should have been placed on the parties’ intention by the Judge in this case.
The Judge was required to consider the factors in light of the uncontradicted
evidence, and to ask himself whether, on balance, the facts were consistent
with the conclusion that the workers were persons in ‘business on their own
account’ (see Sagaz supra at paragraph 3), or were more consistent with
the conclusion that the workers were employees. In failing to do this, he made
a palpable and overriding error on a question of mixed law and fact. Had he
conducted that analysis, in my view, he could only have concluded that City
Water was not the employer of the Service Workers.
[29] This case
represents a modification of the position in Royal Winnipeg Ballet. It
is essentially an adoption of the position stated by Noël J.A. in Wolf that
only if the Wiebe Door tests do not point conclusively in one direction
or another should intent be used to tip the scales.
6. Combined
Insurance Company of America v. Canada, 2007 FCA 60. Once again the decision of the Tax
Court of Canada that the insurance salesperson was an employee was reversed and
replaced by the decision of the Federal Court of Appeal that she was an
independent contractor. The relationship was governed by the Quebec Civil
Code. In Combined Insurance, the contract between the salesperson
and the insurance company specifically provided that the salesperson was an
independent contractor.
[30] Nadon J.A.
speaking for the court in reviewing the case law stated:
[34] To
conclude this review of the applicable case law, I refer to the comments made
by Mr. Justice Létourneau in Le Livreur Plus Inc. v. Canada, supra.
After having determined that the question on which the Court had to rule was
always that of the true nature of the relationship between the parties, Mr. Justice
Létourneau stated at paragraph 18 of his reasons, regarding the relevance of
the test in Wiebe Door, supra:
[18] In these circumstances, the tests mentioned in Wiebe
Door Services Ltd. v. M.N.R., 87 D.T.C. 5025, namely the degree of
control, ownership of the work tools, the chance of profit and risk of loss,
and finally integration, are only points of reference: Charbonneau v.
Canada (Minister
of National Revenue - M.N.R.) (1996), 207 N.R.
299, paragraph 3. Where a real contract exists, the Court must determine
whether there is between the parties a relationship of subordination which is
characteristic of a contract of employment, or whether there is instead a
degree of independence which indicates a contract of enterprise: ibid.
[Emphasis added.]
[35] In my
view, the following principles emerge from these decisions:
1. The
relevant facts, including the parties’ intent regarding the nature of their
contractual relationship, must be looked at in the light of the factors in Wiebe
Door, supra, and in the light of any factor which may prove to be relevant
in the particular circumstances of the case;
2. There
is no predetermined way of applying the relevant factors and their importance
will depend on the circumstances and the particular facts of the case.
Although as a general
rule the control test is of special importance, the tests developed in Wiebe
Door and Sagaz, supra, will nevertheless be useful in determining
the real nature of the contract.
. . . . .
. . . Further, it is
beyond question that the judge did not in any way consider the tests developed
by this Court in Wiebe Door, supra, which are, as Mr. Justice Létourneau
stated in Le Livreur Plus, supra, at the very least useful guidelines in
determining whether a contract is one of employment or for services.
[31] In Combined
Insurance the factors in the Wiebe Door test were relegated to the
status of “useful guidelines” which, nonetheless, helped to determine the real
nature of the contract.
[32] André
Gagnon v. M.N.R., 2007 FCA 33, [2007] F.C.J. No. 156 (QL). In this
case the Federal Court of Appeal did not reverse the Tax Court of Canada. It in
fact upheld the decision that drywallers were employees. In paragraph 5 of
the judgment, Justice Létourneau said:
[5] The contracts between
the parties were oral contracts. At the hearing, no evidence was provided as to
the intention of the appellant and the individuals regarding their business
relationship. However, the four criteria analyzed by the judge are relevant and
helpful in ascertaining the intent of the parties to the contract and the legal
nature of their relationship.
From this I take it that the Federal Court of Appeal is saying that the
principal enquiry must be to determine the intent of the parties and if intent
is not explicitly stated the Wiebe Door tests must be used as tools in the
ascertainment of that intent.
[33] With respect to
the factor of intent I would make a couple more observations. The first is that
the Supreme Court of Canada has not expressed a view on the role of intent. In Sagaz,
it was not mentioned as a factor. The second is that if the intent of the
parties is a factor it must be an intent that is shared by both parties. If
there is no meeting of the minds and the parties are not ad idem, intent
can not be a factor. The third, if intent is a factor in determining whether
someone is an employee or an independent contractor, then it must necessarily
be a factor in all cases where the question is relevant. In this court our
focus is usually on the rather narrow question whether a person is employed in
insurable or pensionable employment or, under the Income Tax Act,
whether a person is an employee for the purposes of deducting certain types of
expenses or being taxed in a particular way. The Sagaz case, on the
other hand dealt with vicarious liability. If the test is the same then the
rights of third parties could potentially be affected by the subjective intent of
the contracting parties as to the nature of their relationship — a concern
expressed by Evans J.A. in his dissent in Royal Winnipeg Ballet.
[34] Where then does this series of cases leave us? A few general
conclusions can be drawn:
(a) The
four-in-one test in Wiebe Door as confirmed by Sagaz is a
significant factor in all cases including cases arising in Quebec.
(b) The four-in-one
test in Wiebe Door has, in the Federal Court of Appeal, been reduced to
representing “useful guidelines” “relevant and helpful in ascertaining the
intent of the parties”. This is true both in Quebec and the common law provinces.
(c) Integration as a
test is for all practical purposes dead. Judges who try to apply it do so at
their peril.
(d) Intent is a test
that cannot be ignored but its weight is as yet undetermined. It varies from
case to case from being predominant to being a tie‑breaker. It has not
been considered by the Supreme Court of Canada. If it is considered by the
Supreme Court of Canada the dissenting judgment of Evans J.A. in Royal
Winnipeg Ballet will have to be taken into account.
(e) Trial judges who
ignore intent stand a very good chance of being overruled in the Federal Court
of Appeal. (But see Gagnon where intent was not considered at trial but
was ascertained by the Federal Court of Appeal by reference to the Wiebe
Door tests that were applied by the trial judge. Compare this to Royal Winnipeg Ballet, City Water and Wolf.
[35] I turn then to the question of the status of the people hired to do
the duct cleaning. Despite the temptation to use Sir Wilfred Greene’s
method I shall endeavour to apply as best I can the principles to be deduced
from the Federal Court of Appeal’s decisions.
[36] I have considered this case on the basis of four alternative
hypotheses. They all lead to the same conclusion.
(a) Intent is determinative (Royal Winnipeg Ballet).
(b) Wiebe Door is all that is needed and intent need not be
considered (Sagaz, Wiebe Door and Precision Gutters).
(c) The Wiebe Door test does not point conclusively in any
direction and so intent is a tie-breaker (Wolf and City Water).
(d) Common sense, instinct and a consultation with the man on the
Clapham omnibus.
[37] If the law did not permit me to look at anything but the Wiebe
Door test, standing by itself, then I would have to say that it pointed
more to independent contractor than employee. There was no supervision and no
control. The workers were picked and told to go to a particular house. If
mistakes had to be corrected the workers had to go back at their own expense
and correct their mistakes. They had a chance of profit and bore the risk of loss.
They got paid a percentage of the fee paid to Dun‑Rite. If Dun‑Rite
did not get paid neither did they. If Dun‑Rite got plenty of orders their
chances of increased income were commensurately enhanced. If Dun‑Rite
chose not to hire a worker he simply was not hired. If they did a good job
their chances of getting hired for the next job were enhanced. Ownership of
tools points in neither direction. The appellants supplied the vacuum equipment
and the van and the workers supplied the small tools.
[38] If intent is determinative clearly the workers were independent
contractors. (Royal Winnipeg
Ballet) Both the
appellants and the workers who were called as witnesses regarded themselves as
independent contractors. This is evident from their oral testimony and from the
fact that no employee benefits, no vacation pay, and no job security were
provided. The workers had to wait around until they were contacted by the
appellants or Monty Hagan. They could accept or decline the job and they
could take other jobs. They had no assurance that they would be hired by
Dun-Rite and they had no guarantee of being hired again after the particular
jobs for which they were hired were completed. These factors bring them within
the considerations enunciated by Décary J.A. in Wolf.
[39] If we regard intent as merely a tie‑breaker (as stated in
Noël J.A.’s judgment in Wolf as well as in Malone J.A.’s
decision in City Water), the same result would apply even if the Wiebe
Door tests pointed unequivocally in neither direction. While the law does
require me to look at the Wiebe Door test it does not prevent me from
looking beyond it in order to determine the true relationship between the
parties. If the Wiebe Door test yielded an inconclusive result, a
consideration of the parties’ intent clearly tips the scales toward an
independent contractor relationship.
[40] If I were to rely solely on my own instincts and common sense I would say
that quite apart from the Wiebe Door test, quite apart from intention,
workers who are called on to clean the ducts of a couple of houses, paid a
portion of the fee and then sent on their way do not by any stretch of the
imagination look like employees.
[41] Therefore, despite Ms. Sittler’s very able, thorough and fair
argument, the appeals are allowed and the assessments referred back to the
Minister of National Revenue for reconsideration and reassessment in accordance
with these reasons and the determinations are varied in accordance with these
reasons.
Signed at Ottawa, Canada this 14th day of September
2007.
Bowman,
C.J.
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