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Citation: 2003TCC100
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Docket: 2001-1934(EI)
2001-1937(CPP)
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BETWEEN:
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CHARLES W. DOERING,
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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.T.C.C.
[1] These
appeals were heard together on common evidence by consent of the parties at
Calgary, Alberta on February 27, 2003. The Appellant and his wife, Caroline,
both testified for the Appellant. The Respondent called Barry Urbani, Director
of Employee Relations for Trimac Transportation Services Inc.,
("Trimac"), which owns the alleged employer Bulk Systems (Alberta)
Ltd. ("BSAL"). Mr. Urbani dealt with BSAL's collective agreements and
with the severance of the Appellant.
[2] The
Appellant alleges that he was an employee of BSAL during the Employment
Insurance period in issue (January 28, 1998 to February 7, 2000) and during the
Canada Pension Plan period in issue (January 1, 2000 to February 7, 2000). He
has appealed rulings to the contrary. The Employment Insurance period includes
the Canada Pension Plan period. Therefore the Employment Insurance pleadings
will be used as a reference.
[3] The
particulars in dispute are set out in paragraphs 5 to 9 inclusive of the Reply to
the Notice of Appeal in 2001-1934(EI). They read:
5. In response
to the appeal, the Minister decided that the Appellant was not employed under a
contract of service with the Payor for the period January 28, 1998 to February
7, 2000.
6. In so
deciding as he did the Minister relied on the following assumptions of fact:
(a) the
Payor owns and operates a business which transports woodchips from sawmills to
pulp mills;
(b) the
Worker was hired as a driver and his duties included loading, hauling, and unloading;
(c) the
Appellant and the Payor signed an independent contractor agreement;
(d) the
Payor's business operates 24 hours a day, 7 days a week;
(e) the
Payor's office hours are from 8:00AM to 5:00PM;
(f) the
Appellant earned a flat rate per trip, the Appellant was only paid for work
completed;
(g) the
Appellant was paid weekly;
(h) the
Appellant was not entitled to vacation pay or paid sick leave;
(i) the
Appellant worked a maximum of 15 hours per day and a maximum of 75 hours per
week;
(j) the
Appellant did not have any set starting or finishing times;
(k) the
work hours were set by the Payor's clients;
(l) a
record of the Appellant's trips was maintained by an onboard computer in the
truck;
(m) the
Appellant was not supervised;
(n) the
Appellant performed his services in the field and he worked on his own;
(o) the
appellant had the freedom to work for others;
(p) the
Appellant provided the tools and equipment required including the truck and
onboard computer;
(q) the
Payor provided the trailer;
(r) the
Appellant had a risk of loss;
(s) the
Appellant incurred expenses in the performance of his duties including fuel,
repairs, maintenance, licenses, insurance and any fines;
(t) the
Appellant had the power to hire his own helpers and replace himself, and
(u) the
Appellant was responsible to pay any replacement.
B. ISSUES
TO BE DECIDED
7. The issue to be decided is whether the
Appellant was employed under a contract of service with the Payor during the
period January 28, 1998 to February 7, 2000.
C. STATUTORY PROVISIONS, GROUNDS
RELIED ON AND RELIEF SOUGHT
8. He relies on, inter alia, paragraph
5(1)(a) and section 2 of the Employment Insurance Act.
9. He submits that the Appellant was not
engaged in insurable employment within the meaning of paragraph 5(1)(a) of the Employment
Insurance Act as he was not engaged under a contract of service with the
Payor for the period January 28, 1998 to February 7, 2000.
[4] Assumptions
6 (b), (n) and (o) are in dispute. The remaining assumptions were not refuted
by the evidence. Respecting the assumptions in dispute and assumption 6 (t),
the Court finds:
6 (b)
The Appellant was hired along with his
tractor (truck).
6 (n)
The Appellant was told when to appear to
pull his trailer. The number of loads depended on the hauling distance required
from the sawmill supplying chips to the pulp mill (which was BSAL's customer)
to which BSAL's trailer was pulled for unloading purposes upon the pulp mill's
order for service. However the Appellant could haul down any road or route he
chose. His actual work day or week hours were only restricted by the hourly
restrictions of the Alberta or Canada Labour Code that applied to the week.
6 (o)
The Appellant could not put his tractor
to work for others because it was insured by Trimac. Within the Codes' hourly
restrictions per day or week, he could personally work for others.
6 (t)
Any substitute driver was subject to
BSAL's approval. BSAL did not approve of the Appellant's brother-in-law as a
substitute driver for the Appellants.
[5] The
Appellant and BSAL had a formal written contract for the work (Exhibits A-1 and
A-2). It is, in form and intent, not a contract of employment. The Appellant
takes serious exception to it and testified that in his view, BSAL broke the
contract two months after it began when it insisted on painting his tractor in
Trimac colours and not Weldwood (the pulp company) colours. However
subparagraph 1(n) permits BSAL to specify the colours for the truck and does
not require that they be the pulp company's or anyone else's particular
colours. Contrary to Mr. Doering's view, that is for BSAL alone to decide.
Therefore, the Court finds that Exhibits A-1 and A-2 constituted a contract
between the Appellant and BSAL at all material times for the period.
[6] In the foregoing context, a review
follows of the four initial tests respecting employment contained in Wiebe Door Services Ltd. v. The Minister of National Revenue, (F.C.A.) 87 DTC 5025;
1. The Control Test
Mr. Doering could refuse a call for work. He testified that he did
not. But at the same time he testified that others under the same kind of
contract did refuse at times. He could also choose his driving routes and,
within BSAL set speed limits, choose his speed of work. Thus Mr. Doering
exercised control as to how and when he worked.
2. Tools
Mr. Doering owned his own tractor and any accessory tools. That
ownership was a condition of his contract with BSAL. Pay was based on tractor
service, not on Mr. Doering's personal service.
3. Chance of Profit or Risk of Loss
This was entirely Mr. Doering's. Both he and Mrs. Doering testified
that he lost money on the contract. They are believed. All of the trailer's
ownership and operating expenses were borne by him. He bore the entire risk of
profit or loss.
4. Integration
BSAL had a large number of other tractor operators under contract.
It could operate easily without the Appellant. Similarly, the Appellant could
contract his tractor operation with someone else and has since done so. Each
was merely an accessory to the other.
[7] On
the basis of the foregoing tests, Mr. Doering was not an employee of BSAL.
[8] More
important however, is the evidence that during both periods, Mr. Doering
was a businessman who was in business for himself and that was the way that he
contracted with BSAL. It is also the way that each of them dealt with the other
under that contract.
[9] The
appeals are dismissed.
Signed at
Toronto, Canada, this 12th day of March 2003.
J.T.C.C.
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