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Citation: 2004TCC267
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Date: 20040402
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Docket: 2003-297(EI)
2003-298(CPP)
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BETWEEN:
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OTTAWA METRO TOWING AND RECOVERY INC.,
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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
Lamarre, J.
[1] These are appeals from a decision
of the Minister of National Revenue ("Minister"), who
determined that the appellant was liable to pay Canada Pension
Plan contributions and employment insurance premiums on the
remuneration it paid to Abdul Hamid Wehbe, Ahmad Wehbe, Khaled
Wehbe and Hussein Wehbe ("Workers") as of January
1, 2001. The basis of that decision is that the Workers were
employed under a contract of service and therefore were employed
by the appellant in pensionable employment within the meaning of
paragraph 6(1)(a) and the definition of
"employment" in subsection 2(1) of the Canada
Pension Plan and in insurable employment within the meaning
of paragraph 5(1)(a) of the Employment Insurance
Act ("Act"). Furthermore, this being a case
where the Workers were all related to the appellant, the Minister
also determined that it was reasonable to conclude that they
would have entered into a substantially similar contract of
employment if they had been dealing at arm's length and
therefore concluded that the Workers' employment was not
excluded from insurable employment pursuant to paragraphs
5(2)(i) and 5(3)(b) of the Act.
[2] The issue therefore is whether the
Workers were employed in pensionable and insurable employment
while employed by the appellant from January 1, 2001.
[3] The appellant provides towing
services in the city of Ottawa and the surrounding area. Its
controlling shareholder and president is Webb Wehbe, who owns 51
per cent of the shares in the appellant. He is related to the
four Workers as follows: Abdul Hamid is Webb's father, Khaled
is his uncle and Ahmad and Hussein are his brothers.
[4] According to Webb Wehbe, during
the period at issue, the appellant owned approximately 14 tow
trucks and employed 14 drivers under a contract of service. Those
employees were required to report for duty at 6:00 a.m. for
a twelve-hour shift and were paid an hourly rate varying from $9
to $10 an hour. They were paid time and a half for overtime and
were covered by an employee benefit package (health and welfare
plan). They were provided with a uniform and a fully equipped tow
truck, and all expenses related to that vehicle were paid by the
appellant.
[5] Webb Wehbe testified that, the
towing business being in operation 24 hours a day, seven days a
week, the appellant also contracted with service providers on an
as-needed basis when its own tow truck operators had reached
maximum capacity and were thus unable to respond to all of the
calls received. Independent contractors could call the dispatcher
and have their names put on a rotation list for such work.
[6] While the regular employee drivers
were not allowed to decline any calls when on duty, Webb Wehbe
testified that the independent service providers did not have to
accept a call if they were not interested. According to him,
those independent contractors did not have set hours of work, had
no obligation to work, and were free to come and go as they
pleased. They were reached on their cellular phones, for which
they themselves paid the expenses. Contrary to the employee
drivers, the contractors were not paid for overtime and were not
included in any benefit plans. Webb Wehbe testified that the four
Workers in question in this appeal were considered as independent
contractors.
[7] Indeed, evidence was adduced that
each Worker entered into an agreement with the appellant on
January 1, 2001. According to Webb Wehbe, the appellant's
intention was to enter into an agreement with a towing service
provider who would facilitate things for the appellant by
providing services on an as-and-when-needed basis.
[8] Except in the case of
Hussein Wehbe, those agreements, entitled "Ottawa Metro
Towing Broker TruckMan Agreement" ("Agreements" or
"Agreement"), were signed both by Webb Wehbe for the
appellant and by the Worker. In the case of Hussein Wehbe, the
copy of the Agreement filed in evidence (Exhibit A-1)
shows that it was signed before a witness (whose name was
Shawn Arthur, according to Webb Wehbe) but was not
signed by anyone for the appellant. Webb Wehbe testified that he
did not know why he did not sign Hussein's Agreement and that
it must have been an oversight.
[9] None of the Workers were operating
under a business name and they were all referred to as the
"truckman" in the four Agreements. As a matter of fact,
the statement of business activities filed with the 2001 tax
returns of three of the Workers indicates the name and address of
the appellant as the name and address of their business. (See
Exhibits R-2, R-3 and R-4.)[1]
[10] The four Agreements state that each
truckman owns or possesses a tow truck (which is defined as a
motor vehicle appropriately licensed for the business of towing
motor vehicles) that he is willing to use in furtherance of the
appellant's business at his discretion and under his control.
The Agreements stipulate that the truckman must maintain
insurance on the tow truck at his own expense and that he is
required to pay the deductible portion of any insurance claim.
Moreover, the truckman is responsible for all damage to vehicles
and property of the appellant caused by a vehicle, employee or
agent of the truckman.
[11] Hussein and Ahmad Wehbe testified that
their tow trucks were registered and insured in the name of the
appellant because it cost them less than it would have to have
had them registered and insured in their own names. They both
said that they paid for their trucks with money loaned to them
without interest by their father, Abdul Hamid Wehbe. The latter
testified that he had previously owned a restaurant for many
years. After his restaurant was destroyed by fire, he received a
$200,000 insurance settlement and loaned this money to his sons
and to the appellant. Hussein testified that he purchased his
truck in 1999 for $70,000 and Ahmad said he traded his old truck
in for a new one in 1997. He said the new truck was worth $30,000
and the trade-in allowance was $20,000, leaving a balance of
$10,000 to pay. The father, Abdul Hamid, said that he paid
$60,000 cash for his own truck and started to work in the towing
business in 2001. Webb Wehbe testified that a tow
truck's value is in the vicinity of between $50,000 and
$80,000. With respect to the insurance on the trucks, both
Hussein and Ahmad testified that they reimbursed the appellant
the cost thereof. Hussein stated that he paid the appellant
$2,600 for the year for insurance and did so in cash,
bi-monthly or weekly, but did not claim that amount as an
expense in his tax return. Ahmad said that the cost of insurance
was included in the expenses he had claimed against his income
for tax purposes.
[12] The four Agreements also state in the
recitals that the appellant desires to use the services of the
truckman or "an approved nominee of the TRUCKMAN, as
operator of the Tow Truck". Each truckman is in addition
required by his Agreement to deliver to the appellant on a daily
basis all revenues received for work performed in the
appellant's name, and the truckman is in turn to be paid by
the appellant for the services he performed for it (see section 1
of the Agreements in Exhibit A-1). Section 3 of the Agreements
(Exhibit A-1) stipulates the following:
3. REMUNERATION OF THE TRUCKMAN
A) The Company
agrees to pay [and] the TRUCKMAN agrees to accept Compensation as
set forth hereto [sic]. Cash in sheets handed in by
TRUCKMAN will be deemed as invoices and payment for services to
the truck will be calculated for work done up to and including
one week prior to payment date.
B) The TRUCKMAN
compensation can be changed by the Company at anytime upon 7 days
written notice to the TRUCKMAN.
[13] With respect to remuneration, all the
Workers testified that they set their own price for a call.
However, Webb Wehbe explained that the appellant usually paid its
contractors 60 per cent of the amount collected for each call.
Furthermore, although Hussein now denies it,
Mr. Neil Manwell, a Canada Customs and Revenue Agency
("CCRA") programs officer, testified that Hussein had
mentioned to him during the audit that he was paid by cheque a
flat rate of $600 per week that covered his fees for his services
and the cost of his fuel. The only income declared in
Hussein's tax return is from the appellant and amounts to
$31,600 in 2001 (Exhibit R-2). Ahmad testified that he was paid
$700 per week. He allegedly said to Mr. Manwell during the audit
that he received that remuneration even when sick or on holidays.
Indeed, he declared income of $36,400 in 2001, which represents
$700 times 52 weeks in the year. At trial, Ahmad said that if he
was unable to respond to a call, he would arrange to have someone
else take care of it for him. That is why he was invariably paid
$700 per week regardless of circumstances. However, he also said
at trial that he did not claim any amount for salary paid to
others in computing his income for tax purposes. Furthermore,
both Hussein and Ahmad explained that they worked for the
appellant at their set fee until they reached the flat rate
amount mentioned above. They said that when they had reached that
amount of income, they did not accept any more calls. Abdul Hamid
also said that he received the same amount from the appellant
every week but that he worked only when he pleased. He said that
he did not need to work anymore and that he only worked to help
the appellant's business. Mr. Manwell testified that he
was told by Webb Wehbe during the audit that Abdul Hamid was
semi-retired but worked for the appellant at least 40 hours per
week.
[14] Although the Agreements provide that
the Workers had the right to carry on business as they wished,
none of them declared income from contracts with other
businesses. This is verified by the income declared in the
statement of business activities in their 2001 tax returns. The
only income declared is from the appellant. This is so in spite
of the fact that Hussein and Ahmad Wehbe both testified that they
had worked for others and that they were either paid cash or
worked in exchange for other services. Hussein explained that the
income received from others was so minimal that he did not think
it necessary to declare it as income. Surprisingly enough, he
had, however, also previously said that he worked for many other
independent towers (representing in the vicinity of 20 to 25
clients in addition to the appellant; see page 145 of the
transcript). He said that he responded to five to ten calls a
week, of which three to five were for the appellant (see page 110
of the transcript).
[15] With respect to the drivers of the
trucks, contrary to what was said by Webb Wehbe in his testimony,
section 2 of the Agreements states that drivers must be approved
by the appellant, and that the appellant may decline the services
of a driver if not satisfied with the driver's record. The
Agreements also provide that any driver of a tow truck must
operate it in a careful manner and in compliance with
governmental requirements and must "be neat in appearance,
which will be determined at the sole discretion of the
[appellant]. The TRUCKMAN will provided [sic] uniforms as
specified by the [appellant] to themselves and any of their
drivers at their own expense" (section 2 C) of the
Agreements, Exhibit A-1). The truckman also agreed that he
was responsible for any drivers he assigned to drive his truck.
Immediate termination of the truckman's services could occur
at the sole discretion of the appellant in case of breach of the
Agreements' provisions. Finally, upon termination of the
Agreements, the truckman agreed to remove forthwith the
appellant's identification and radio frequency from the truck
at his own expense (see section 9 d) of the Agreements in
Exhibit A-1).
[16] This last condition contradicts the
testimony of Webb, Hussein and Ahmad Wehbe, who said that
there was no logo identifying the appellant on their trucks.
Abdul Hamid said that he would display a sign showing the
appellant's logo only at the request of the Ottawa Police.
Furthermore, all four Workers said that none of them wore a
uniform, which is also contrary to the Agreements'
requirements.
[17] Finally, the Agreements state that the
Workers agreed to deal with the appellant as independent
contractors and that as such they were responsible for all source
deductions under the various relevant federal and provincial
legislation.
[18] Counsel for the respondent also called
as witnesses two tow truck drivers, Derek Anderson and Daniel
Tremblay, who were unrelated to the appellant, and who had worked
for the appellant during the period at issue. They both said they
had signed an agreement with the appellant. The one signed by
Derek Anderson was filed as Exhibit R-1. As in the case of
Hussein, that agreement was signed on January 1, 2001, before a
witness (the same one, the witness's signature being the same
on the two agreements), but no one signed for the appellant. That
agreement (Exhibit R-1) is exactly the same as those signed by
the Workers (Exhibit A-1). Mr. Manwell testified that, during his
audit, Webb Wehbe's position was that Derek Anderson and
Daniel Tremblay were independent contractors. At trial, Webb
Wehbe testified that he considered them as employees of the
appellant.
[19] Derek Anderson testified that he
attended at the appellant's premises every day. The appellant
provided him with a tow truck together with equipment and a
uniform. Mr. Anderson said that the appellant paid all expenses
related to the truck (gas, insurance, licence). When called by
the dispatcher, he had to drive to the location indicated and
invoice the client in the name of the appellant. He said he was
paid weekly by cheque. Mr. Manwell testified that he was told
during his audit that Derek Anderson was paid a rate varying
between 20 per cent and 27 per cent of the invoice price,
which rate was set by the appellant and depended on the type of
call.
[20] Daniel Tremblay testified that during
the time he was working for the appellant, he showed up every
morning at the appellant's place of business and that his
name was put on a rotation list. He said that the appellant
provided him with a tow truck, equipment and a uniform. He
mentioned that all trucks were marked with the appellant's
name, including the trucks used by the four Workers. He testified
that he had to pay the appellant $200 per month rental for the
truck, but the appellant was responsible for gas and for all
expenses related to the truck. He said that he could not have
worked for others with that truck because it was marked with the
appellant's name. Nor could he lend the truck to anyone else
without the approval of the appellant. He invoiced clients
according to the appellant's rate and he himself was paid,
once a week, a percentage of the amount collected for the calls
to which he had responded. His remuneration averaged between $250
and $350 per week. Mr. Manwell testified that he was told during
the audit that Daniel Tremblay was working part time and was paid
30 per cent of the invoice price. He also said that Webb Wehbe
had told him that Ahmad, Hussein and Abdul Hamid were paid the
same rate as Daniel Tremblay. In the case of Khaled,
Webb Wehbe said that he was paid by cheque at a rate set by
the appellant by contract. However, there is no rate set in the
Agreement contained in Exhibit A-1.
[21] With respect to complaints, Daniel
Tremblay said that they were dealt with by the appellant, but if
he was responsible for any damage, he had to pay for it. He said
he had had a few damage claims against him over the years. He was
also responsible for the equipment on the truck if it was broken
or lost due to his negligence.
[22] Finally, Mr. Manwell noted a few
contradictions during the audit. Webb Wehbe said the Workers were
paid daily or by the job while the Workers told him they were
paid a flat rate on a weekly basis. Webb Wehbe also said that the
Workers owned their trucks and paid the expenses related thereto
while the Workers stated otherwise. Mr. Manwell was never told
during his audit that the Workers were entitled to 60 per cent of
the invoice price. The audit also revealed that the Workers were
expected to perform their duties on an on-call basis. The
appellant's dispatcher would call them and expect them to get
to the location indicated within a reasonable time. The Workers
were providing services to the appellant assisting the
latter's clients.
[23] Having concluded that the Workers were
employed under a contract of service, Mr. Manwell also concluded
that they were employed on terms and conditions substantially
similar to those governing the employment of Derek Anderson
and Daniel Tremblay. Mr. Manwell did not compare the Workers'
conditions of employment to those of the other drivers employed
by the appellant.
Analysis
[24] The sole question raised in this
appeal is whether the Workers were employees of the appellant
during the period at issue. In 671122 Ontario Ltd. v. Sagaz
Industries Canada Inc., [2001] S.C.J. No. 61 (Q.L.), 2001 SCC
59, the Supreme Court of Canada said that there is no one
conclusive test which can be universally applied to determine
whether a person is an employee or an independent contractor.
Major J., speaking for the Court, said at
paragraphs 46-48:
¶ 46 . . . Further, I agree with MacGuigan J.A. in Wiebe
Door, at p. 563, citing Atiyah, supra, at p. 38, that what must
always occur is a search for the total relationship of the
parties:
[I]t is
exceedingly doubtful whether the search for a formula in the
nature of a single test for identifying a contract of service any
longer serves a useful purpose.... The most that can profitably
be done is to examine all the possible factors which have been
referred to in these cases as bearing on the nature of the
relationship between the parties concerned. Clearly not all of
these factors will be relevant in all cases, or have the same
weight in all cases. Equally clearly no magic formula can be
propounded for determining which factors should, in any given
case, be treated as the determining ones.
¶ 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.
[25] In the present case, the
difficulty in the search for what was the total and real
relationship of the parties lies in the numerous contradictions
that surfaced during the audit and at trial. Mr. Webb Wehbe's
version during the audit differed from that of the Workers, and I
noticed contradictions between what was stipulated in the
Agreements signed by the Workers and the evidence adduced at
trial. In some aspects, the Agreements do not seem to properly
reflect what they are supposed to be saying. For example, one
unrelated individual, Derek Anderson, who was called to
testify, signed exactly the same agreement as the Workers and he
was considered by Webb Wehbe to be an employee of the appellant.
Why is that? Why would this individual have signed the same
agreement as the others and yet be subject to different
conditions of employment? From what viewpoint would the situation
be different for this individual than for the Workers? Counsel
for the appellant stated that Mr. Anderson's agreement was
not signed by the appellant. But neither was Hussein's and
both agreements were signed before the same witness. Yet, the
appellant recognizes Hussein's Agreement as being valid.
[26] Another problem lies in the fact
that none of the Workers indicated in his tax return that he was
carrying on a business on his own account. Rather, they all
indicated that they were operating a business under the
appellant's name at the appellant's place of business.
Yet, no evidence was presented to show that they had invested in
the appellant's business.
[27] Therefore, although the
Agreements state that the Workers agreed to deal with the
appellant as independent contractors, that statement should not
be determinative in the characterization of the relationship
between the contracting parties in the circumstances of this
particular case.
[28] As Major J., citing MacGuigan
J.A., indicated in Sagaz, supra, the most that can
profitably be done is to examine all the possible factors which
have been referred to in the case law as bearing on the nature of
the relationship between the parties concerned. Thus, the central
question that was analyzed in Sagaz was whether the person
who had been engaged to perform the services was performing them
as a person in business on his own account. In making such a
determination, different factors must be examined, and that is
what I will try to do.
[29] With respect to control, Hussein,
Ahmad, Abdul Hamid and Webb Wehbe testified that the Workers did
not have to show up at the appellant's place of business if
they did not want to, and that they did not have to report to the
appellant. They all said that the dispatcher would reach them on
their cellular phones and that they were free to accept the call
or not. They all said that they could, without the
appellant's prior approval, hire other drivers to drive their
trucks and to respond to calls for the appellant.
[30] On the other hand, Derek Anderson
and Daniel Tremblay - of whom the appellant said during the audit
that it considered them to be independent contractors, but has
since changed its mind - gave completely opposite testimony. Both
said that they had to show up at the appellant's place of
business every morning and that their name was put on a rotation
list. Mr. Tremblay said that he could not have his truck driven
by someone else without the appellant's approval.
Incidentally, this is in accordance with the Agreements, which
provide that the appellant can decline the services of any driver
whose driving record is not approved by the appellant. And yet,
Mr. Anderson, at least, had signed the same kind of agreement as
those signed by the Workers, filed as Exhibit A-1.
[31] Furthermore, Mr. Manwell, the
CCRA programs officer, was told during his audit that the Workers
were expected to perform their duties on an on-call basis and
that the dispatcher, who called them, would expect them to get to
the location indicated within a reasonable time. I realize that
this last element could very well apply to an independent
contractor as well. However, there are other factors that show
that there was some kind of control exercised by the appellant.
For example, although the Wehbes testified that they did not have
to wear a uniform, Messrs. Anderson and Tremblay stated that the
appellant provided them with a uniform that they had to wear for
work. In addition, Mr. Manwell testified that when he met Hussein
at the appellant's place of business, he was wearing a
uniform with the appellant's badge. The Agreements also
stipulate that the Workers had to provide uniforms, as specified
by the appellant, for themselves or for any of their drivers.
Although it is not clear who actually paid for those uniforms, it
seems more probable than not that the Workers had to wear a
uniform with the appellant's badge when performing their
duties.
[32] Similarly, with respect to the
appellant's identification on the tow trucks, the Wehbes
testified that the Workers' trucks did not bear such
identification. Yet, Mr. Tremblay's testimony was that
all the trucks were marked with the appellant's name,
including the trucks used by the Workers. Mr. Manwell testified
that he saw Hussein leaving the appellant's place of business
in a truck marked with the appellant's name. The Agreements
provide that upon termination thereof, the truckman is to remove
the appellant's identification from the truck.
[33] In my view, the evidence of Mr.
Tremblay and Mr. Manwell is more credible than the testimony
given by the Workers at trial, especially since the version of
the latter is in direct contradiction with the Agreements they
tendered in evidence to show that they were independent
contractors. As a result, I am not at all convinced that the
Workers were truly free to accept or refuse calls and that they
did not have to report to the appellant's premises every
morning like the other drivers, wearing uniforms and having their
tow trucks duly identified with the appellant's logo.
[34] With respect to the ownership of
tools, both Messrs. Anderson and Tremblay testified that they
were provided with a truck and equipment by the appellant. Mr.
Tremblay, however, said that he paid the appellant $200 per month
rental for the truck and that the appellant paid all the expenses
for that truck. Mr. Anderson said that the appellant paid all the
expenses related to the truck but did not mention that he had to
pay a rental fee.
[35] The Workers testified that they
paid for the purchase of their trucks, for the maintenance
thereof and for gas. However, Hussein and Ahmad acknowledged that
their trucks were registered and insured in the appellant's
name. They said that they paid for their trucks through
interest-free loans from their father. They said that they
reimbursed the appellant the amount paid for the insurance. Ahmad
said that he had paid $30,000 for his truck while Hussein stated
that he had paid $70,000 for his. Webb testified that the value
of a tow truck was between $50,000 and $80,000. Who is telling
the truth? How much was really paid for the trucks and who paid
it? No one provided any documentary evidence showing that the
Workers actually paid for their trucks and the insurance on them.
The expenses claimed against income in their respective tax
returns are not itemized and the Workers did not know what the
amounts claimed represented exactly. Taking into account the
discrepancies observed throughout their evidence, I find it
difficult to rely solely on the Wehbe family's testimony
without any supporting documentation.
[36] With respect to the chance of
profit and risk of loss, although the Wehbes testified that the
Workers were paid a percentage of the invoice price set by the
Workers themselves, that is not what they had stated during the
audit. The Workers had said at that time that they were paid a
flat rate weekly by cheque. Ahmad had gone so far as to say that
he was paid even when sick or on holidays. At trial, Hussein and
Ahmad tried to explain that they accepted calls until they
reached the flat rate amount. I find it strange that this was not
brought up during the audit. Ahmad also said that when not
available to drive his truck he asked someone else to replace
him, but he stated as well that he did not claim any salary
expense in his tax return because he did not hire employees.
Furthermore, Mr. Manwell testified that Webb Wehbe's version
given during the audit did not corroborate that given by the
Workers. Indeed, Webb Wehbe said that the Workers were paid on a
daily basis or by the job, which does not seem to be what
actually happened. In view of the above, I am not convinced that
the Workers were paid otherwise than by means of a weekly salary
or that they had to incur any real expenses. In saying this, I
realize that Mr. Tremblay testified that he paid a rental fee to
the appellant. However, there is no evidence that such was the
case with the Workers.
[37] With respect to the integration
of their work into the appellant's business, although the
Workers testified that they had indeed worked for others, this is
not verified by the tax returns filed in evidence. The sole
income declared was from the appellant. Yet, Hussein and Ahmad
testified that they had many other clients. If such was the case,
the income from those other sources should have been declared.
Furthermore, Mr. Tremblay said that he could not work for others
with his truck since it was marked with the appellant's name.
As for Abdul Hamid, he said that he worked only for the
appellant, and Webb Wehbe told Mr. Manwell that Abdul Hamid had
worked 40 hours per week.
[38] In conclusion, as the Federal
Court of Appeal said in Moose Jaw Kinsmen Flying Fins Inc. v.
M.N.R., [1988] 2 C.T.C. 2377, at page 2379, 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. Any post facto
characterization of the relationship as being something other
than it actually was has no foundation in the case law. In
M.N.R. v. Standing (1992), 147 N.R. 238, the Federal Court
of Appeal said at pages 239-40:
. . . Regardless of what may have been the Tax Court's
appreciation of the Wiebe Door test, what was crucial to
it in the end was the parties own post facto characterization of
the relationship as that of employer/employee. 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.
[39] In my view, the evidence adduced
by the appellant at trial was not sufficient to demonstrate that
the Workers entered into a contractual relationship as
independent contractos. I have difficulty in giving any weight to
the Wehbe family's evidence, which in my view is tainted by
ex post facto self-interest and by many contradictions
that cast doubt on its credibility.
[40] Having so concluded, and on the
whole of the evidence presented before me, I am of the opinion
that the appellant did not show on a balance of probabilities
that the Minister was wrong in deciding that the Workers were
employed by the appellant under a contract of service during the
period at issue.
[41] As regards the determination by
the Minister that the Workers' employment was not excluded
from insurable employment pursuant to
paragraphs 5(2)(i) and 5(3)(b) of the
Act, I find that the appellant has not shown that the
Minister exercised his discretion improperly. Indeed, in view of
the lack of credibility of the Wehbe family's evidence, I
find it difficult to overrule the Minister's decision on the
basis that it was not reasonable. I cannot presume that the
Workers' conditions of employment were different from those
of the other employees.
[42] For all these reasons the appeals
are dismissed.
Signed at Ottawa, Canada, this 2nd day of April 2004.
Lamarre, J.
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