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Docket: 2003-2089(EI)
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BETWEEN:
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RAYMOND HYNES,
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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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__________________________________________________________________
Appeal heard on April 29, 2004 at Gander,
Newfoundland
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Before: The Honourable Justice G. Sheridan
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Appearances:
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Agent for the Appellant:
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Albert O'Rielly
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Counsel for the Respondent:
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Martin Hickey
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__________________________________________________________________
JUDGMENT
The
appeal is dismissed and the decision of the Minister is confirmed
in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 21st day of September,
2004.
Sheridan, J.
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Citation: 2004TCC534
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Date: 20040921
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Docket: 2003-2089(EI)
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BETWEEN:
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RAYMOND HYNES,
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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
Sheridan, J.
[1] This is an appeal from a
determination by the Minister of National Revenue that the
Appellant, Mr. Raymond Hynes, was not employed in insurable
employment from July 22, 2002 to October 5, 2002 because he was
not working under a contract of service. Mr. Hynes is of the view
that, during the period in question, he was under a contract of
service with his wife, Mrs. Diane Hynes, doing housing
construction and therefore, the work is insurable. There is no
dispute that Mr. Hynes was building houses in Goose Bay from July
to October 2002. The question is whether he was engaged in that
activity on his own behalf as an independent contractor, or as an
employee of Mrs. Hynes.
[2] Both Mr. Hynes and Mrs. Hynes
testified. Their evidence was that in July 2002, having
heard of the possibility of home construction contracts in Goose
Bay, Mrs. Hynes decided to set herself up in the home building
business. She had no business experience, nor did she have any
experience in construction. She opened a business bank account
into which she deposited start-up capital from a line of credit
she held jointly with Mr. Hynes. Mr. Hynes was given Power of
Attorney over the business account. Mrs. Hynes stated that she
hired Mr. Hynes to go to Goose Bay to negotiate on her behalf
with Melville Woodworkers and then, to carry out the resulting
building contracts. There was no written contract between
Melville Woodworkers and Mrs. Hynes or, for that matter, between
her and Mr. Hynes. At no time did she have any contact with
Melville Woodworkers, nor did she spend any time at the Goose Bay
building site. Mr. Hynes testified that he called her almost
daily to report on progress and to seek her advice regarding the
suitability of contracts being considered. Regular on-site
supervision was left to a Melville Woodworkers carpenter.
Melville Woodworkers paid Mr. Hynes directly by cheque made
payable to him which he then deposited in the business account.
Mr. Hynes supplied his own carpentry tools; the cost of
scaffolding was paid out of the business account.
ANALYSIS
[3] Mr. Hynes has the burden of
proving wrong the assumptions upon which the Minister's
assumptions were based. The starting point is to determine
whether there existed a contract of any kind between Mr. Hynes
and the business operated by Mrs. Hynes. Counsel for the
Respondent referred the Court to a decision of the Federal Court
of Appeal, Fournier v. Canada[1]:
The tests set out in Wiebe Door can be used as a guide only in
cases where the Court has to decide whether the relationship
between a payer and a worker is governed by a contract of service
or a contract for services. However, in many cases, including the
case at bar, the Court's first task is not to distinguish
between these two types of contracts, but rather to determine
whether there was really a contractual relationship between the
parties.
[4] The evidence presented is not
sufficient to establish a contractual relationship between Mrs.
Hynes and Mr. Hynes. There was no written agreement between them
nor any testimony regarding their respective rights and
obligations. Mr. Hynes was paid, not by the business, but by
Melville Woodworkers.
[5] If, however, I am wrong in this
conclusion and a contract did exist between Mr. Hynes and Mrs.
Hynes, I am of the view that the contract was a contract for
services in which case, Mr. Hynes was an independent contractor,
not an employee. In making this determination, I am guided by the
tests in the case law[2]. The evidence shows that Mrs. Hynes did not exercise
any real control over Mr. Hynes in the carrying out of his
duties. Mrs. Hynes was not on-site; with no experience in the
business, even if she had been, her presence would have been of
little utility. Mr. Hynes sought out the projects and based
his decisions on whether to accept on his experience and the
current practices at the construction site rather than Mrs.
Hynes' advice. He was paid directly, in his own name, by
Melville Woodworkers for his labours. The line of credit, which
had financed the Goose Bay venture, was jointly held by Mr. Hynes
and Mrs. Hynes. Any chance of profit or risk of loss was
his. He supplied his own tools and essentially, ran his own
show.
[6] For the reasons given, I find that
there was no contract of service between Mr. Hynes and Mrs.
Hynes. Accordingly, the appeal is dismissed.
Signed at Ottawa, Canada, this 21st day of September,
2004.
Sheridan, J.
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