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Citation: 2004TCC319
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Date: 20040429
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Docket: 2003-4586(EI)
2003-4587(CPP)
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BETWEEN:
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BARCLAY LUTZ,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
and
BERNHARD FEHR,
Intervenor.
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____________________________________________________________________
REASONS FOR JUDGMENT
Beaubier, J.
[1] These appeals were heard together
on common evidence by consent of the parties. Barclay Lutz and
Bernhard Fehr each testified on his own behalf.
[2] The particulars of the appeals are
contained in the Reply to the Notice of Appeal in 2003-4586(EI);
paragraphs 3 to 7 inclusive read:
3. By letter
dated April 11, 2003 the Calgary Tax Service Office issued a
ruling that the Worker was in insurable employment with the
Appellant.
4. By letter
dated July 8, 2003, the Appellant appealed to the Minister for a
reconsideration of the ruling.
5. In response
to the appeal, the Minister decided that the Worker was employed
under a contract of service with the Appellant for the period of
November 14, 2001 to January 8, 2003.
6. In so
deciding, the Minister relied on the following assumptions of
fact:
(a) the
Appellant's operation included the processing, sale and
delivery of hay;
(b) the Worker was
hired as a driver;
(c) the Worker was
normally paid by commission based on a percentage of the
load;
(d) the Worker was
also paid an hourly rate ($12.00/hour) at times;
(e) the Appellant
determined the Worker's wage rates;
(f) the
Appellant paid the Worker;
(g) the Appellant
provided advances to the Worker;
(h) the majority of
the cheques issued by the Appellant to the Worker indicated
"wages" or "advance"
(i) the
Appellant set the Worker's start and finish times and hours
of work;
(j) the
Appellant exerted control over the Worker;
(k) the Appellant
obtained the clients;
(l) the Worker
was in contact with the Appellant on a daily basis;
(m) the Appellant
assigned/dispatched work to the Worker;
(n) the Appellant
provided the Worker with pick up and delivery instructions;
(o) the Appellant
made the decisions with regards to truck repairs;
(p) the Appellant
set the product prices;
(q) the Worker was
required to perform his services personally;
(r) the Worker did
not provide his own helpers;
(s) the Worker was
required to keep an invoice book and a logbook in the
Appellant's name;
(t) the Worker
required the Appellant's approval for any leave;
(u) the Worker did
not work for others while performing services for the
Appellant;
(v) the Appellant
provided all of the tools and equipment required including the
truck, trailer, loader and tools;
(w) the Worker did not
provide any tools or equipment;
(x) the Worker had
no financial investment in the Appellant's business;
(y) the Worker did
not have a chance of profit or a risk of loss;
(z) the Worker did
not have a trade name;
(aa) the Worker did not enter
into a rental or lease agreement with the Appellant;
(bb) the Appellant paid for all
operating expenses including fuel, oil, washes, repairs, toll
charges, insurance and licenses;
(cc) the Appellant provided the
Worker with fuel cards;
(dd) the Appellant reimbursed
the Worker for cell phone expenses, and
(ee) the Worker did not charge
the Appellant G.S.T.
B.
ISSUES TO BE DECIDED
7. The issue
is whether the Worker was employed under a contract of service
with the Appellant during the period November 14, 2001 to January
8, 2003.
[3] None of the assumptions were
refuted by the evidence.
[4] Using the criteria enunciated in
Wiebe Door Services Ltd. v. M.N.R., 87 D.T.C. 5025,
the Court finds:
1. Control
Mr. Fehr was under the control of Mr. Lutz at all times. There
was one occasion when Mr. Fehr hauled an item that he bought from
a Lutz customer back to his home on Lutz's truck. He was
hired pursuant to Mr. Lutz's ad for "Drivers"
in the Lethbridge Herald, for "24% of gross pay. Weekends
off." (Exhibit A-1).
2. Profit and
Loss
The Appellant was paid as advertised, but complained in detail
about being paid amounts of less than 24% in percentages down to
about 20%. They quarrelled frequently about these shortages.
Eventually Mr. Lutz fired Mr. Fehr due to these increasing
quarrels and an allegation that Mr. Fehr did not return a truck
to the Lutz farm on a return journey late one night when he
simply drove home to bed.
3. Tools
Were all owned by Mr. Lutz.
4. Integration
Mr. Fehr was simply a truck driver for Mr. Lutz who was fully
integrated into Mr. Lutz's business. The business was owned
and operated by Mr. Lutz.
[5] The appeals are dismissed.
Signed at Saskatoon, Saskatchewan this 29th day of April
2004.
Beaubier, J.
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