The
Court
[orally]:—This
section
28
application
was
brought
to
review
and
set
aside
a
decision
of
the
Tax
Court
of
Canada
confirming
assessments
made
by
the
respondent
pursuant
to
the
Unemployment
Insurance
Act,
1971
("the
Act").
The
applicant
is
a
community
based,
non-profit
corporation
which
provides
swimming
instruction
and
competitive
opportunities
for
young
persons
in
the
City
of
Moose
Jaw,
Saskatchewan
and
its
environs.
It
engages
the
services
on
a
part-time
basis,
of
a
head
coach
and
several
assistant
coaches
to
carry
out
its
purposes.
They
are
engaged
pursuant
to
written
contracts
and
are
paid
at
hourly
rates
which
vary
according
to
the
experience,
training
and
responsibilities
of
the
individuals.
The
swimming
pool
at
which
the
applicant
operates
is
owned
by
the
municipality
which
leases
it
to
the
applicant
on
a
non-exclusive
basis.
The
applicant
owns
some
office
equipment,
lane
markers,
stop
watches
and
other
miscellaneous
speed
swimming
equipment.
The
coaches
provide
their
own
whistles,
stop
watches
and
the
like.
The
head
coach
coordinates
the
activities
of
his
assistants
and
as
well,
also
coaches,
arranges
for
meet
entries,
record
keeping
and
fund
raising
and
supervises
the
conduct
and
methods
of
instruction
on
behalf
of
the
applicant.
All
the
coaches'
activities
are
under
the
umbrella
of
the
applicant's
by-laws.
At
the
material
times
all
of
the
coaches,
with
the
exception
of
one,
maintained
full-time
employment
other
than
with
the
applicant.
Under
the
provisions
of
their
contracts
either
party
could
terminate
the
employment
contract
on
one
month's
notice.
Principally
on
the
basis
of
the
foregoing
facts,
the
respondent
determined
that
the
coaches
were
engaged
by
the
applicant
under
contracts
of
service
as
its
employees
within
the
meaning
of
paragraph
3(1)(a)
of
the
Act,
so
that
he
issued
notices
of
assessment
to
the
applicant
for
the
1984
and
1985
taxation
years
for
arrears
of
its
Unemployment
Insurance
contributions
on
behalf
of
its
coaches.
Those
assessments
were
confirmed
by
the
Tax
Court.
It
is
that
decision
which
is
the
subject
matter
of
this
section
28
application.
The
relevant
portions
of
subsection
3(1)(a)
of
the
Act
reads
as
follows:
Insurable
employment
is
employment
that
is
not
included
in
excepted
employment
and
is
(a)
employment
in
Canada
by
one
or
more
employers,
under
any
express
or
implied
contract
of
service
or
apprenticeship,
written
or
oral,
.
.
.
The
sole
issue
in
the
application
is
whether
or
not
the
learned
Tax
Court
judge
correctly
held
that
the
swim
coaches
were
employees
of
the
applicant
under
a
contract
of
service
or
whether
he
ought
to
have
found
them
to
be
independent
contractors
not
falling
within
the
terms
of
the
Act
as
contended
by
counsel
for
the
applicant.
The
definitive
authority
on
this
issue
in
the
context
of
the
Act,
is
the
decision
of
this
Court
in
Wiebe
Door
Services
Ltd.
v.
M.N.R.,
[1986]
2
C.T.C.
200;
87
D.T.C.
5025.
MacGuigan,
J.
speaking
on
behalf
of
the
Court,
analyzed
Canadian,
English
and
American
authorities,
and,
in
particular,
referred
to
the
four
tests
for
making
such
a
determination
enunciated
by
Lord
Wright
in
City
of
Montreal
v.
Montreal
Locomotive
Works
Ltd.,
[1947]
1
D.L.R.
161
at
169-70;
[1946]
3
W.W.R.
748
at
756-8.
He
concluded
at
page
204
(D.T.C.
5028)
that:
Taken
thus
in
context,
Lord
Wright's
fourfold
test
[control,
ownership
of
tools,
chance
of
profit,
risk
of
loss]
is
a
general,
indeed
an
overarching
test,
which
involves
“examining
the
whole
of
the
various
elements
which
constitute
the
relationship
between
the
parties".
In
his
own
use
of
the
test
to
determine
the
character
of
the
relationship
in
the
Montreal
Locomotive
Works
case
itself,
Lord
Wright
combines
and
integrates
the
four
tests
in
order
to
seek
out
the
meaning
of
the
whole
transaction.
At
page
205(D.T.C.
5029)
he
said:
.
.
.
l
interpret
Lord
Wright's
test
not
as
the
fourfold
one
it
is
often
described
as
being
but
rather
as
a
four-in-one
test
with
emphasis
always
retained
on
what
Lord
Wright,
supra,
calls
“the
combined
force
of
the
whole
scheme
of
operations,"
even
while
the
usefulness
of
the
four
subordinate
criteria
is
acknowledged.
[Emphasis
added.]
At
page
206(D.T.C.
5030)
he
had
this
to
say:
What
must
always
remain
of
the
essence
is
the
search
for
the
total
relationship
of
the
parties.
He
also
observed
"there
is
no
escape
for
the
trial
judge,
when
confronted
with
such
a
problem,
from
carefully
weighing
all
the
facts.”
Notwithstanding
those
valuable
directions
as
to
the
approach
to
be
adopted
in
deciding
cases
of
this
kind,
Baryluk,
J.
of
the
Tax
Court,
without
reference
to
that
approach,
examined
the
evidence
under
each
of
the
four
tests
enunciated
by
Lord
Wright
in
the
Montreal
Locomotive
case
to
conclude
that
the
assessments
were
valid.
In
employing
that
approach
we
cannot
say
that
he
committed
a
reviewable
error,
although,
like
MacGuigan,
J.
we
view
the
tests
as
being
useful
subordinates
in
weighing
all
of
the
facts
relating
to
the
operations
of
the
applicant.
That
is
now
the
preferable
and
proper
approach
for
the
very
good
reason
that
in
a
given
case,
and
this
may
well
be
one
of
them,
one
or
more
of
the
tests
can
have
little
or
no
applicability.
To
formulate
a
decision
then,
the
overall
evidence
must
be
considered
taking
into
account
those
of
the
tests
which
may
be
applicable
and
giving
to
all
the
evidence
the
weight
which
the
circumstances
may
dictate.
In
this
case,
perhaps
the
most
cogent
evidence
was
the
employment
contract
upon
which
Baryluk,
J.
placed
little,
if
any,
emphasis.
Properly
construed,
it
seems
to
me
that
it
points
to
a
contract
of
service,
i.e.
an
employer-employee
relationship,
thus
supporting
the
judge's
conclusion.
It
is
not
without
significance
that
the
definition
of
the
relationship
by
means
of
a
written
contract
was
motivated
by
the
perceived
need
for
the
applicant
to
exercise
a
greater
degree
of
control
over
the
coaching.
As
to
the
findings
of
facts,
while
we
might
have
drawn
different
conclusions
from
the
evidence
in
some
respects,
we
are
unable
to
say
that
the
learned
judge
made
any
perverse
findings
or
findings
without
regard
to
the
evidence
as
required
for
the
application
of
paragraph
28(1)(c)
of
the
Federal
Court
Act.
Accordingly,
while
we
have
considerable
sympathy
for
the
applicant,
for
all
of
the
foregoing
reasons
the
section
28
application
will
be
dismissed.
Application
dismissed.
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