Citation: 2010 TCC 256
Date: 20100511
Docket: 2009-2801(EI)
BETWEEN:
KOOTENAY DOUKHOBOR HISTORICAL SOCIETY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] The Appellant, Kootenay Doukhobor
Historical Society (“Society”) appealed from a decision issued on June 24, 2009
by the Minister of National Revenue (the “Minister”) pursuant to the Employment
Insurance Act (“EIA”) wherein the Minister confirmed an assessment for
Employment Insurance (EI) premiums for 2007 and 2008 in respect of Larry
Ewashen (“Larry”) on the basis he was engaged in a contract of service and
therefore an employee.
[2] Robert Ewashen (“Ewashen”) testified that
he is President of Society which operates the facility known as Doukhobor
Discovery Centre (in certain documents Centre is spelled Center) which includes
a museum. Apart from some clarification, Ewashen acknowledged the assumptions
of fact set forth in paragraph 7 of the Reply to the Notice of Appeal (“Reply”),
were accurate:
…
a)
the Appellant is a non-profit society operating
a historical museum in Castlegar, British Columbia;
b)
the Appellant is run by a volunteer board of
directors with Robert Ewashen (“Robert”) as its president;
c)
the Worker is Robert’s brother;
d)
the Worker is the museum curator responsible for
all operational activities including management, public relations, staff
supervision, grounds maintenance, bookkeeping and obtaining government grants;
e)
the Appellant’s employees such as tour guides
and restaurant staff are under the direction of the Worker;
f)
the Worker holds a Masters of Arts degree;
g)
the Worker has considerable latitude in the
operation of the museum but was subject to the board’s authority;
h)
the Worker was reimbursed for any expenses
incurred in the performance of his duties;
i)
the Worker attended monthly meetings with the
Appellant’s board of directors and reported his progress;
j)
the Worker was paid monthly according to the
Appellant’s schedule;
k)
the Worker was paid $40,800.00 per year;
l)
the Worker was paid $100.00 per month for
miscellaneous expenses;
m)
the Appellant determined the Worker’s rate of
pay based on industry standards and the Appellant’s ability to pay;
…
[3] However, Ewashen stated his brother – Larry
– had performed some duties not enumerated in paragraph 7(d) and that Larry may
have incurred some expenses associated with the performance of his duties that
were not compensated by Society. The Society paid Larry monthly by cheque. With
respect to the assumption – at paragraph 7(n) that “the Worker was provided
with living accommodations on site at no charge”, Ewashen stated Larry paid the
sum of $400 per month for his living space within the museum building and that
this amount was deducted from his monthly cheque. Ewashen acknowledged that
Larry was responsible for security and overall operations of the museum, but he
was not required to be on-site 7 days per week, as assumed by the Minister at
paragraph 7(o). Ewashen agreed Society required the personal services of Larry
and that any replacement for other than a short duration would require approval
of the Board of Directors (“Board”). Ewashen disagreed with the assumption – at
paragraph 7(q) that “the Appellant provided all tools for the Worker to perform
his duties” and stated Society supplied only the tools required to carry out
duties associated with building maintenance and landscaping. Larry provided his
own laptop computer and related office equipment. The rental accommodation was
not furnished and Larry performed some duties at a work space therein and could
be contacted there by interested parties when he was not at the Admissions
Desk. Ewashen agreed that Larry had been providing his services – as an
employee – to Society from 1993 to 2008 when pursuant to a written contract –
Exhibit A-1 – both parties wanted his status transformed to that of an
independent contractor. Ewashen stated this agreement was entered into not for
the purpose of making “paperwork easier for the Appellant”, as assumed in
paragraph 7(s). Instead, the Board had become concerned that there may be a perceived
conflict of interest because Ewashen was the President of Society and Larry was
his brother. This issue arose as a result of an audit conducted by the City of Castlegar which owns the building and property from which the
museum is operated. Although no improprieties were disclosed by the audit, the
Board felt it was prudent to change the status of the Curator – Larry – to that
of an independent contractor rather than perpetuate his status as an employee.
The Board members were informed that transformation of the working relationship
pursuant to the written agreement would simplify bookkeeping as Society would
no longer be required to take certain source deductions from his cheque.
Ewashen stated that he and his fellow directors were aware that Larry had
undertaken some private consulting work throughout his career as Curator. The
agreement – Exhibit A-1 – was dated February 7, 2008, in order to formalize an
existing verbal agreement between the Board and Larry and the parties agreed
therein that the effective date thereof would be January 1, with the term to
continue until December 31, 2008. The contract was to be deemed as continuing
for the following year unless terminated by either party or if certain changes
were desirable to benefit the operation of the Doukhobor Discovery Centre, in
which case the final “arbitrator” of the contract was the Board. The duties to
be performed by Larry included – but were not limited to – items specified in
the contract and the hours or days of work were left to his discretion. The “contract
price” was $40,800, to be paid in monthly instalments, inclusive of any
benefits that may be deemed appropriate and Larry was granted the option to
occupy the living quarters and office within the museum and to pay an annual
rent of $4,800 which was to be deducted at source. Ewashen stated Larry’s
contract was renewed in 2009 and in 2010. Ewashen has been President of Society
for 6 or 7 years and before assuming that office had served on the Board, at
which point Larry had already been employed as a Curator – by Society – for
many years.
[4] Robert Ewashen was cross-examined by
counsel for the Respondent. Ewashen acknowledged that the services performed by
Larry subsequent to the 2008 contract were substantially the same as those he
had provided since 1993. In 2007, the Board met monthly with Larry and that
practise continued in 2008 and thereafter. Larry had been living in the Centre
since 1993, although the residential space was originally located in a different
part of the building. Throughout the period of employment from 1993 to January
1, 2008, the pay periods were monthly and that schedule was maintained in the
written contract. Larry did not charge any Goods and Services Tax (“GST”) on
his services.
[5] Ewashen – in his role as agent for Society
– closed the Appellant’s case.
[6] Counsel for the Respondent with the consent
of the agent for Society, filed a Book of Documents – Exhibit R-1, tabs 1 to 9,
inclusive.
[7] Raj Kandola (“Kandola”) testified he has
been employed by Canada Revenue Agency (“CRA”) since 2002 and has carried out
the duties of an Appeals Officer since 2008. He has a Bachelor of Commerce
degree from the University of British Columbia and is closing in on
qualifying for registration as a Certified Management Accountant which requires
a combination of work experience and study. In the course of the office
routine, Kandola was assigned the appeal - by Society - from the assessment of
EI premiums in respect to Larry. He telephoned Larry and engaged in a conversation
and also contacted Ewashen and another party who was at that time included in
said assessment. Kandola stated he typed notes – contemporaneously – of all
conversations using a Memo to File template on his computer to create Form
T2020 at tab 2. He reviewed the Questionnaire – tab 5 – completed by Ewashen and
signed on December 2, 2008 – and the completed Questionnaire – tab 7 – signed
by Larry on the same date. Kandola visited the Appellant’s website and printed
out – tab 6 - the information pertaining to Larry and his experience and
qualifications. Kandola obtained from Larry certain material including copies
of cheques payable to him during the relevant period and certain pages in
respect of the Appellant’s amended constitution and a Copy of Resolution –
within tab 6 – dated April 27, 2007. Larry also provided a sheet where he
listed various examples of work he had performed since 1966 including some
described as “free lance.” Kandola stated he prepared CPT110 - A Report on an
Appeal – tab 1 – in which he reviewed the facts in relation to the various
indicia utilized in such an analysis with the understanding the parties
mutually intended that Larry provide his services as an independent contractor.
Kandola recommended to the Minister that a decision be issued to find that
Larry was engaged in insurable employment with Society during the relevant
period because he was employed under a contract of service.
[8] The agent for the Appellant did not
cross-examine.
[9] Ewashen submitted that the Society and
Larry wanted to transform their longstanding relationship from that of employer
and employee to one where the services provided by Larry would be as an
independent contractor pursuant to a written contract. Because of certain
concerns which had arisen in the course of the audit by the City of Castlegar,
Ewashen – as President – and members of the Board believed the lack of source
deductions from Larry’s remuneration would constitute adequate separation
between the parties and that – as an independent contractor –Larry would
continue to control day-to-day operations within general guidelines issued by
the Board. Ewashen submitted that because the intent of the parties was clearly
expressed in the written contract, the role of Larry had been modified sufficiently
to remove him from the category of employee. With respect to the fact that
during the relevant period Larry appeared to be carrying out the same function
as he had done since 1993, Ewashen suggested Larry may have always been
performing in a manner consistent with that of a sub-contractor in the sense he
was a professional who possessed certain skills which he provided not only to
Society and its operation of the Doukhobor Discovery Centre but also to others
since obtaining his Master of Arts degree in 1967.
[10] Counsel for the Respondent submitted there
had been no change in the services provided by Larry since 1993 and that a
review of the requisite indicia confirmed that he was not in business on his
own account. Counsel’s view of the evidence was that notwithstanding the mutual
intent of the parties, the circumstances surrounding the provision of services
did not support that purported characterization. Counsel submitted that the
facts of the within appeal in the context of established jurisprudence required
the decision of the Minister to be confirmed.
[11] In several recent
cases including Wolf v. The Queen, 2002 DTC 6853, The Royal Winnipeg
Ballet v. The Minister of National Revenue – M.N.R., 2006 DTC 6323, Vida Wellness Corp. (c.o.b. Vida
Wellness Spa) v. Canada (Minister of National Revenue - M.N.R.),
[2006] T.C.J. No. 570 and City Water International Inc. v. Canada (Minister
of National Revenue – M.N.R.), [2006] F.C.J. No. 1653, there was a clearly‑expressed
mutual intent of the parties that the person providing the services would be
doing so as an independent contractor and not as an employee. That is also the case in the within appeal.
[12] The Supreme Court
of Canada in 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. Canada (Minister of National Revenue - 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 47 and 48 of his Judgment stated:
47
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.
48 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.
[13] I will examine
the facts in the within appeal in relation to the indicia set forth in the Judgment
of Major, J. in Sagaz.
Level
of Control:
[14] The written
contract – Exhibit A-1 – stated the services to be provided by Larry and
included the following:
*To curate the
museum aspect of the Doukhobor Discovery Center
*To prepare
grants for funding projects and or operational aspects of the Center
*To engage
staff as deemed necessary to operate the Center, and supervise the staff
in their work
*To record
hours of work and do the payroll
*To prepare a monthly record of revenue and expenditures, and have
these periodically reviewed by the bookkeeper retained by the Board
*To maintain a current website for the Center
*To provide other publicity for the Center as appropriate
*To ensure the grounds are maintained
*To assure the safety, security and good condition of operation to a
standard reasonably possible
[15] One of the terms
in said contract was that the Centre would be open to the public May through
September between the hours of 10 a.m. and 5 p.m. 7 days a week. The Appellant,
a British Columbia non-profit society, was governed by Directors who
were required to discharge enumerated duties pursuant to the constitution and
Officers were established pursuant to Article IV. The Board set objectives at
each monthly meeting and Larry was required to report progress in respect of
various matters. He was fixed with the responsibility to remain on-site –
except for necessary temporary absences – and to provide security and to
oversee daily operations not only of the museum or Centre but also with respect
to other aspects of Society. He was not entitled to perform these duties from
any other location and if he was not at the Admissions Desk or elsewhere inside
the Centre where the public had access, he could be found in the office space
at his living quarters within that building. Although Larry had a great deal of
discretion in terms of overall management of the museum including supervision
of Society employees who functioned as tour guides or restaurant staff, he was
required to provide these services personally. He also had to maintain the
grounds and performed diverse other duties such as bookkeeping and submitting
applications for government grants. There is no evidence to support a finding
that the working conditions had been altered from those which had existed
between 1993 and December 31, 2007, during which period the parties understood
the relationship was that of employer-employee and acted in accord with that
status. Because Larry’s function as Curator required specialized skills, any
absence of more than a couple of days required approval of the Board and there
was no opportunity for Larry to retain the services of another person to
perform his contractual duties.
Provision
of equipment and/or helpers:
[16] The tools and equipment required to maintain the grounds and to perform
routine maintenance or repair of the building were provided by Society. Other
tools – in a broad sense – consisted
of the building and the artifacts and displays therein but Larry owned a
computer which he used for purposes of work. He acquired some office equipment
and furniture which he used in the work space within his living quarters. Any
helpers or other workers were hired and remunerated by Society and Larry had no
responsibility in that regard except to manage them within the context of the
operation of the museum.
Degree
of financial risk and responsibility for investment and management:
[17] Larry had been
employed continuously by Society since 1993 and his written contract of 2008
was renewed in 2009 and 2010 so there was no reasonable risk arising from
potential loss of his position as Curator. He had worked there for many years
before his brother – Ewashen – was involved either as a Director or President
so did not need to rely on any family connection to continue in that role.
Larry did not have any financial investment in Society and was not required to
pay anyone to assist him in carrying out his duties.
Opportunity for profit in the performance of his tasks:
[18] Larry was paid an annual salary of $40,800 - payable monthly - which
was not dependent on any specific number of hours worked and received the sum
of $100 per month for miscellaneous expenses. There was no evidence to suggest
this amount was insufficient. The rent – $400 per month
– for his living quarters was deducted from each cheque.
According to the informational sheet provided to Kandola – 3 pages from the
back within tab 6 - Larry did some freelance work for Touchstones Museum in
Nelson, British Columbia but there is no evidence this was performed within the
relevant period nor is there any evidence to indicate the amount he may have
earned. At page 6 of Kandola’s CPT110 – tab 1 – when dealing with the issue of opportunity for profit,
Kandola commented:
… 98 percent
of his work is with the payer and he is required to be one (sic) site nearly
24 hours a day. All of this indicates that Larry does not have any capacity ability
(sic) to earn extra income with other payers in any meaningful capacity.
The same conditions have endured since 1993. …
[19] Those
observations by Kandola are valid and have not been challenged by the Appellant.
[20] With respect to
the issue of intent, as stated earlier, there is no doubt Society and Larry
wanted him to provide his services as an independent contractor during the
relevant period.
[21] In the case of Dempsey
v. Canada (Minister of National Revenue – M.N.R.), [2007] T.C.J. No. 353;
2007 TCC 362, Hershfield, J. considered the appeal of a service
provider who – as a chartered accountant – had entered into a written contract with the payor in
which he agreed to perform auditing and professional services in relation to
loans and grants made by said payor and to do so as an independent contractor
who would submit invoices based on a stipulated daily rate with a maximum
amount during the contract period based on a maximum number of days. Pursuant
to said contract, the parties agreed the worker would be an independent
contractor. The worker submitted invoices each month for the number of hours
worked on each day of the month and GST was charged on the relevant amount. In
the course of his analysis at paragraphs 39 to 46, inclusive, Hershfield, J.
commented as follows:
Analysis
[39] If
intentions were determinative of the status of the Appellant's engagement,
there would be no doubt that his engagement would be that of an independent
contractor. The Appellant not only accepted the status imposed by circumstance
and organizational structure but played out the role of an independent
contractor until it was no longer to his benefit to do so. He honoured the
contract which defined his status by becoming a GST registrant, invoicing his
time with GST set out and bidding on new contracts as existing contracts
expired. He claimed business expenses on his income tax return and paid no
union dues as a public servant. He had no benefits and was not part of the
public service pension plan. These were all contractually established,
understood and accepted by the Appellant. At the end of the day, he preferred the
independent status that this contractual arrangement gave rise to, although
when he lost it he seized on the opportunity to deny that which he had accepted
for almost 13 years.
[40] However, it
has long been accepted that the terms of a contract dictating whether an
engagement is one of employment or independent contractor are not determinative
of the relationship for the purposes of the EIA and
the CPP even if outside of the four corners of the
actual working relationship both parties treat such dictated term as definitive
of their relationship. Mutuality of intention as to the status of an
engagement, even coupled with conduct outside the working relationship that
recognizes that intended contractual status, is not determinative of that
status. While recent authorities have recognized the potential importance of
intentions in so called close cases,8 this is not a close case. The
test to be applied in this case is clearly that set down by the Supreme Court
of Canada in 2001 in Sagaz Industries Canada Inc. v. 671122
Ontario Limited9 which in large measure accepted the tests
applied in Wiebe Door Services Ltd. v. Canada (Minister of
National Revenue).10
[41] Applying the
Wiebe Door tests the Appellant is clearly an
employee. He was engaged in a wholly subordinate position as subject as any
professional employee would be to do what his manager required of him. He had
no freedom as to how, when or where he performed his services. In virtually
every sense he was subject to the control of his manager at WD. He was treated
in almost every respect as an employee and held out as one. He did what was
asked of him in the context of his position. He had to correct reports as
dictated by persons above him and was subject to deadlines. The specific list
of duties that the Appellant was contracted to do for WD was an expanding list
that covered everything that WD might require of an employee in the position
occupied by the Appellant and even then at the direction of his manager, the
Appellant did more than the specified duties that he was contracted to perform
and he was paid in the normal course for such services. The reason for that is
that he was under the complete control of his manager in WD as any employee
would be. If control over the worker is the relevant test, the Appellant's
engagement status is employment.
[42] The
Appellant provided no tools in respect of the performance of his duties. All of
the tools were provided by WD. If the provision of tools is the relevant test,
the Appellant's engagement status is employment.
[43] The
Appellant worked at a fixed rate for fixed hours and had no expenses in respect
of the performance of his duties. There is no more entrepreneurial risk of loss
or opportunity for profit than any employee working on a fixed term employment
contract basis has. That he had no job security at the end of the term of each
contract and that he had to bid on each contract are compatible with a series
of negotiated term employment contracts. During the term of each contract, work
was done for a wage. If this is the relevant test, the Appellant's engagement
status is employment.
[44] All the Wiebe Door factors point to the Appellant being an
employee. This is not a close case where the intentions of the parties can
impact the status of the engagement.
[45] Before
concluding these Reasons, however, it is important to return to the analysis
engaged in by the Supreme Court in Sagaz. While the
tests considered above were effectively endorsed in that case, they were
applied to what was referred to as the central question in making the required
determination which was whether the worker was working as a person in business
on his own account. In addressing this question of the degree of control by the
engaging party over the worker, the provision of tools and the entrepreneurship
of the worker become factors. Assessing the last factor requires more than an
examination of risk of loss and chance of profit. It also requires examining
whether the worker can be said to have a business that he is engaged in. Here,
there are some indices of the Appellant having a business. He was a GST
registrant, he invoiced his time, he listed himself on data bases used for
engaging contractor services and engaged in a contract proposal or bidding
system.11 These indicia however are insufficient in this case to
support a finding that the Appellant had a business that he was engaged in for
his own account in performing services for WD.
[46] The
Appellant was not engaged in any real sense in a government contract seeking
business. He had a job that was only secure for a fixed term and he had to
re-apply for that job periodically. The way in which the re-application was
submitted and handled however was hardly entrepreneurial. It was essentially
admitted that the contracting system in this case was abused. Even if that were
not the case, it is hard to imagine that someone without a substantive business
of his own (no office, no tools) who has worked for one "client" for
almost 13 years in a subordinate position, can be said to be in business for
his own account because he could "negotiate" his contract rate.
Indeed, in general terms, the enduring long term nature of the relationship
between the Appellant and WD as a full-time worker is not consistent with viewing
the Appellant as an independent contractor carrying on business for his own
account.
[22] Earlier – at paragraph 31 of his reasons,
Hershfield, J. commented that “it was pretty much a foregone conclusion that
the Appellant’s contract would be renewed as long as the job existed.” That
observation is applicable to the within appeal.
[23] In Lang v. Canada
(Minister of National Revenue – M.N.R.),
2007 TCC 547; [2007] T.C.J. No. 365, the issue before former Chief Justice
Bowman was whether the workers engaged by the Appellants in the course of their
furnace and duct cleaning business were employees under a contract of service.
At paragraph 33 of the Judgment, former Chief Justice Bowman commented:
[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.
[24] At paragraphs 37
to 40, inclusive, he continued as follows:
[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.
[25] In the within
appeal, there is no evidence to support the proposition that Larry was carrying
on the business of museum consultant or otherwise providing services in the
field of cultural heritage to others in the public and private sector. He did
not market his services in any meaningful way to the wider cultural community
and did not advertise or print business cards and did not maintain a business
bank account. He did not have any office apart from the work space within his
living quarters and did not have any separate telephone line for business
purposes.
[26] In the case of Standing v. Canada (Minister of
National Revenue – M.N.R.)(F.C.A.), [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 .
…
[27] In the within
appeal, the parties did not want to alter in any material way the terms and
conditions of the working relationship that had persisted for 15 years. What
they wanted was to superimpose a brand-new independent contractor label over the
old one that had characterized it as one of employer-employee. The reasons for
attempting that transformation by means of a written agreement are not logical
and Ewashen and the Board should have obtained legal advice in this regard.
[28] If I were to
allow this appeal on the evidence adduced herein, it would have to be on the
basis that the intent of the parties is determinative. However, that is not the
current state of the law. Unless Parliament approves amendments to the EIA
to permit parties in a working relationship to characterize the status of the
service provider – in effect, a form of
opting-out of the national EI scheme – the admonition of Stone, J.A. in Standing
will remain in good standing. Or, the Supreme Court of Canada could grant leave
to hear an EI appeal and consider this issue directly. Following a review of
the aggregate jurisprudence – including Sagaz, – the Supreme
Court of Canada might decide that under certain circumstances –
such as the absence of coercion, sham or egregious disparity in bargaining
power – the mutual intent of the parties to the working
relationship could be determinative of status. Under this scenario – barring subsequent amendments by
Parliament to the relevant provisions of the EIA – that
would be the end of the matter.
[29] Having reviewed
the evidence and the relevant jurisprudence, it is apparent the decision of the
Minister is correct and it is confirmed.
[30] The appeal is
hereby dismissed.
Signed at Sidney,
British Columbia this 11th day of May 2010.
“D.W. Rowe”
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