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Citation: 2004TCC834
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Date: 20041221
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Dockets: 2004-200(EI)
2004-217(CPP)
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BETWEEN:
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THE ESTATE OF THE LATE TODD VANKOUGHNETT,
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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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and
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SIMPLE IMPROVEMENTS INC.,
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Intervenor.
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____________________________________________________________________
REASONS FOR JUDGMENT
O'Connor, J.
[1] The
issue in these appeals is whether for the period January 1, 2002 to March 1,
2003, ("the Period") the engagement of the Appellant, Todd
Vankoughnett (the "Worker") with Simple Improvements Inc., the
Intervenor ("Payor") was pursuant to a contract of service (i.e.
employee relationship), thus entitling him to employment insurance and Canada
pension plan benefits or was it pursuant to an independent contract with no
entitlement. The engagement consisted in installing a product called "Gutter
Topper" to eaves of homes in the Kingston general area.
[2] The
Worker unfortunately died accidentally shortly prior to the hearing which was
held in Kingston on December 2, 2004. The Agent for the
Worker, Brian Leigh Atkinson, stated at the hearing that the Worker died intestate
(no will) leaving as his intestate heirs his common-law wife Sharon Hamilton
and 3 young children. It appeared from various documents that this Agent was a
lawyer with a Q.C., however, it turned out in fact, as the Agent for the
Appellant stated at the hearing, that this was not true and that the Agent was
simply acting as an Agent and was not a lawyer. The Minister of National
Revenue ("Respondent") was represented by Department of Justice
counsel, Daniel Bourgeois and the Intervenor was represented by counsel, Sandra
Lee Deseron.
[3] The
only witness called by the Agent for the Appellant was Violet Campbell. She was
an eligibility officer for Canada Customs and Revenue Agency ("CCRA")
who, after interviewing the Worker and the Payor made a determination dated
June 17, 2003 (Exhibit A-1) that the Worker was an employee during the Period.
This determination went to the Appeals Division of CCRA and was overturned by a
decision mailed September 25, 2003 which held that the Worker's employment with
the Intervenor during the Period was not pensionable or insurable for the
following reason: "Todd Vankoughnett was not engaged under a contract of
service". It is this latter decision that the Worker contests and that the
Payor and the Respondent contend is correct.
[4] The
Amended Reply to the Notice of Appeal is dated June 1, 2004. It sets forth the basic
facts as well as some incidental facts. All are stated as being assumptions
relied on by the Respondent none of which have been disproven. Paragraph 4 of
the said Amended Reply to the Notice of Appeal reads:
4. In making his
decision, the Respondent relied on the following assumptions of facts:
(a) the Payer
operates as a contractor for renovations and new constructions, both
residential and commercial, with the main focus on "Gutter Topper";
(b) the Payer
operates year round;
(c) the Payer's
shareholder are as follows:
- Audra Wash 45%
- Curtis
Wash 45%
- Audra's
parents each 5%
(d) the Payer has
the exclusive rights to "Gutter Topper" in the Kingston area;
(e) "Gutter
Topper" is a gutter system with a top to keep out leaves and debris. It is
an aluminium product imported from the United States;
(f) the
Appellant has no ownership in the Payer;
(g) the
Appellant is not related to the Payer;
(h) the
Appellant's duties included the following:
-
loading and unloading the materials at the shop
-
supervision of other workers
-
doing general carpentry and gutter topping
(i) the
Appellant performed his duties at different job sites;
(j) the
Appellant required a valid drivers licence to drive to and from the work sites;
(k) the Appellant
wore the Payer's T-shirt;
(l) the
Appellant's hours of work were, in general, Monday to Saturday, from 7:00 a.m.
to 5:00 p.m.
(m) the
Appellant was free to set hours provided the job was done in the time-frame
promised to the customer;
(n) the Appellant
had to invoice the Payer in order to be paid;
(o) the
Appellant recorded his hours of work on timesheets which were given to the
Payer in order to be paid and to allow the Payer to invoice it's clients;
(p) the Appellant
was paid $15.00 an hour, by cheque on a bi-weekly basis;
(q) the Payer
did not withhold any deductions from the Appellant's cheques;
(r) the Payer
did not offer any employment benefits to the Appellant and none were requested
by the Appellant;
(s) the
Appellant was not entitled to paid vacations or vacation pay;
(t) the
Appellant was regularly paid for his services;
(u) the Payer
provided WSIB to the Appellant;
(v) the Payer
provided the Appellant "Gutter Topper" training as provided for under
the Payer's territory agreement with "Gutter Topper";
(w) the Payer
is the only provider of "Gutter Toper" training in the area covered
by its territory agreement with "Gutter Topper";
(x) the Payer
of "Gutter Topper" did not inspect the work completed by the
Appellant;
(y) the Payer
provided all the required materials to the Appellant;
(z) the Payer
also provided the required equipment;
(aa) the Appellant
provided his own small tools;
(bb) the Payer was
responsible for resolving customer complaints;
(cc) the Payer
covered the costs relating to bad debts;
(dd) the Appellant
used the Payer's truck to perform his duties;
(ee) the Payer
covered all the costs related to the truck;
(ff) the
Appellant had to perform his services personally;
(gg) the Payer did
all the quotes and estimations for a job;
(hh) the Appellant
was provided with a work order for each job that he had to do;
(ii) the Payer's
clients had to sign a form approving his job;
(jj) the Appellant
provided the guarantee on the work performed;
(kk) the
Appellant was responsible if work needed to be redone and was not remunerated
for redoing the work;
(ll) the
Appellant received bonus from the Payer if a job is completed faster than
expected;
(mm) the Appellant
could decline work requests from the Payer;
(nn) the
Appellant could work for others and often did;
(oo) the
Appellant and the Payer did not agree that the relationship would necessarily
be ongoing;
(pp) the Payer
had no right to demand or expect the attendance (consecutive) of the Appellant
and the Appellant did not have a guarantee of work;
(qq) the
Appellant, beginning in 2003, charged the Payer GST for services rendered;
(rr) the
Appellant often advertised his services to third parties, informally;
(ss) the
Appellant on occasion outbid the Payer for the provision of various services to
third parties;
(tt) the
Appellant determined his own hours of work, including the timing and length of
breaks;
(uu) the
Appellant was not dependant upon the Payer for this type of work;
(vv) the Payer
maintained the right to terminate the Appellant's services.
[5] The
Agent for the Appellant was unable to call the Appellant, who had died, nor his
wife, Sharon Hamilton, who was in a state of grief and unable to attend the
hearing. Also the Agent, although apparently having attempted to call other
witnesses, was unable to secure their presence at the hearing. As mentioned the
only witness that he called was the said Violet Campbell who reviewed her
initial determination and her reasons for that determination.
[6] The
Agent had the opportunity to adjourn the hearing but decided against that and
proceeded with the hearing. Moreover, by his letter to the Tax Court of Canada
dated November 23, 2004 the said Agent for the Appellant stated as follows:
...
Please allow this letter
to confirm Mr. Todd R. VanKoughnett was tragically killed on October 15,
2004.
I am advised by Todd's
wife Mrs. Sharon N. Hamilton to advance this matter forward altering the style
of action to the Estate of The Late Mr. Todd R. VanKoughnett. We are in the process
of filing the APPLICATION FOR CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE
(Form 74.14 under Rules) in the Superior Court of Justice at Kingston, Ontario.
We are set to proceed
on December 2, 2004. As the last two proceedings have been adjourned at the
request of Simple Improvements, we respectfully request this matter proceed as
scheduled.
It should be noted that these appeals had been adjourned twice previously at
hearings held on June 16, 2004 and September 29, 2004 for reasons considered
sufficient by the Justices who sat at those hearings.
[7] After
the Agent for the Appellant completed his questioning of Violet Campbell he
declared that he had no more witnesses to call and closed his case. Counsel for
the Respondent at that stage made a Motion to dismiss the appeals as the
Appellant's Agent had not discharged the burden of proof to show that the decision
in question was wrong nor had he disproved any of the assumptions contained in
the Amended Reply to the Notice of Appeal. Counsel for the Intervenor supported
this Motion to dismiss.
[8] Considering
the extremely unusual circumstances of the Worker having died shortly prior to
the hearing and his widow being unable to attend because of grief, I considered
that it would be in the interests of justice to hear at least one witness who
could testify as to the position of the Intervenor and the Minister.
[9] That
witness, namely Bob Webb, a carpenter was called and testified essentially that
relationships between the Intervenor and its various workers, including the
Worker and himself, were independent contracts. At this stage I took the Motion
to dismiss under reserve with the understanding that if I was to dismiss the
Motion, the Court would reconvene the parties to hear further evidence and conclude
the matter.
[10] Having now further considered the matter I have firstly determined
that the preliminary determination dated June 17, 2003 of Violet Campbell and
the reasons therefore are of no effect because that determination was reversed
by the appeals decision. Further, considering the verbal testimony, the
Exhibits produced and the Pleadings, in particular the assumptions of fact
contained in the Amended Reply to the Notice of Appeal, and the fact that the
Appellant has not discharged the burden of proving that the decision in
question was wrong nor has the Appellant disproved any of the said assumptions
of fact, in my opinion the Motion to dismiss must be granted. Consequently the
appeals are dismissed.
Signed at Ottawa, Canada, this 21st day of December, 2004.
O'Connor,
J.
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