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Citation: 2005TCC537
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Date: 20050826
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Dockets: 2004-574(CPP)
2004-575(EI)
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BETWEEN:
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DONALD BERGER o/a BUSY 'B' CONSTRUCTION &
CONCRETE,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Beaubier,
J.
[1] These
appeals were heard together on common evidence at Prince Albert on August 9 and at Saskatoon, Saskatchewan on August 11, 2005. The Appellant testified.
[2] The
period in question is from March 1, 2002 to December 31, 2002 as set out in
Schedule B to the Reply to the Notice of Appeal. Mr. Berger is not strongly
literate and is of the opinion that he has appealed from 1999 through 2003.
(His Notice of Appeal does not specify names or dates). As a result, the
Respondent's pleadings which frequently refer to 2000, not 2002, were not
permitted to be amended. On August 9, 2005 Mr. Berger could not identify
various calendar years and thought that he had not employed or retained various
persons in 2002. As a result, this matter was adjourned until August 11, 2005
to allow him to verify
what he could from any records he might have.
[3] The
particulars in the Replies are virtually identical. Paragraphs 5 to 10
inclusive of the Reply to the Notice of Appeal, 2004-575(EI) refer to 2000, not
2002. They read:
5. By Notice of
Assessment dated May 15, 2003, the Appellant was assessed, among other things,
for Employment Insurance premiums in the amount of $1,541.02 for the 2000 year
for the following workers as detailed in Schedule A attached to and forming
part of the Reply to the Notice of Appeal (hereinafter "Schedule A"):
Workers
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Llewyll Tremblay
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Ivan Pomalow
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Ed Berger
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Art Ashdown
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Dave Cambell
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Ashley Ashdown
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Ashley Desrosiers
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Donny Berger Jr.
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Grant Kriger
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6. On May 12, 2003 the
Appellant appealed the assessment to the Minister.
7. In response
to an appeal to the Minister from an assessment, the Minister reduced the
assessment for the 2000 year by $19.01 as Ed Berger was not employed under a
contract of service with the Appellant and confirmed the remainder of the
assessment as the other workers (hereinafter the "Workers") were
employed under a contract of service with the Appellant.
8. In so
assessing as he did, the Minister relied on the following assumptions of fact:
(a) the Appellant
is the sole proprietor of Busy 'B' Construction and Concrete;
(b) the Appellant's
construction business includes building houses and pouring concrete;
(c) the Appellant
controlled the day to day operations of the business;
(d) the Appellant
made the major business decisions;
(e) none of the
Workers had:
(i) an
investment in the Appellant's business;
(ii) bank
signing authority; or
(iii) a
written contract with the Appellant;
Arthur Ashdown and
Ashley Desrosiers
(f) Arthur
Ashdown (hereinafter "Ashdown") and Ashley Desrosiers (hereinafter
"Desrosiers") were required to personally perform their services;
(g) Ashdown
provided services as a labourer;
(h) Desrosiers
built a building frame and installed metal on it;
(i) Ashdown and
Desrosiers were instructed in their duties;
(j) the
Appellant exerted substantial control over Ashdown and Desrosiers;
(k) Ashdown
supplied only small hand tools including a hammer, tape measure and apron in
the performance of his duties;
(l) Desrosiers
did not supply any tools in the performance of his duties;
(m) Ashdown and
Desrosiers were not permitted to provide their own helpers;
(n) Ashdown was
paid $15.00 per hour;
(o) Desrosiers
was paid $9.00 - $10.00 per hour;
(p) the Appellant
decided if work was to be redone;
(q) Ashdown and
Desrosiers were paid if they were required to redo work performed;
(r) Ashdown and
Desrosiers did not carry their own insurance coverage;
(s) neither
Ashdown or Desrosiers charged the Appellant GST;
(t) the
Appellant determined the hours and tasks for Ashdown and Desrosiers;
(u) the Appellant
instructed Ashdown and Desrosiers on the tasks to be performed;
(v) Ashdown and
Desrosiers performed their services while with the Appellant;
Llewyll Tremblay, David Cambell,
Grant Kriger, Ivan Pomalaw, Ashley Ashdown, and Donny Berger Jr.
(hereinafter the "Group of Workers")
(w) Grant Kriger
passed away in March, 2003;
(x) the Appellant
obtained the contracts for his business;
(y) the Group of
Workers provided services in the form of labor to the Appellant;
(z) the Group of
Workers were paid between $8.00 and $10.00 per hour;
(aa) the Group of
Workers' duties included pounding nails, drywalling and digging dirt; and
(bb) the Group of
Workers provided their own small tools.
B. ISSUES TO
BE DECIDED
9. The issues to be decided
are:
(a) whether
the Workers were engaged under a contract of service by the Appellant; and
(b) whether
the Appellant has been properly assessed in respect of the Workers for the 2000
year.
C. STATUTORY
PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
10. He relies on
subsection 2(1) and paragraph 5(1)(a) of the Employment Insurance Act, (the
"Act").
[4] The
Employment Insurance and Canada Pension Plan confirmation appealed from is
dated March 18, 2003 and was filed as Exhibit R-2. It describes the period in
appeal as from January 1 to December 31, 2002. The Appellant agreed that he
received that and that it was appealed from and that it is in dispute in this
Hearing. However there appears to be no valid timely confirmation for the other
years he disputes which could be the subject of this appeal.
[5] In
cross-examination on August 9, 2005 the Appellant did not materially dispute the
particulars of each assumption except to state that Mr. Ashdown supplied small
tools. On August 11, 2005 he confirmed that the alleged employees worked for
him in 2002 and the amounts of the alleged wages.
[6] The
totality of evidence indicates that the Appellant controlled the workers,
supplied or obtained the major tools, risked a profit or loss and that the
workers were integrated into the work on the Appellant's construction project.
They were employees of the Appellant.
[7] As
a result, the appeals are dismissed. The Appellant essentially obtained the
contract in question by marking the hourly wages paid up by the sum of $2.00
per hour. Any work that had to be redone was also paid for by the original
contractor on that hourly basis as was the Appellant personally. On the
evidence before the Court, the Appellant may simply be a "strawman"
in this arrangement. Nonetheless, on the limited evidence before the Court, he
is the responsible employer.
Signed at Regina, Saskatchewan on this 26th day of August, 2005.
Beaubier,
J.
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