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Citation: 2003TCC301
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Date: 20030523
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Docket: 2001-4452(EI)
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BETWEEN:
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MIKE HAMBLIN (A PROPRIETORSHIP
OPERATING AS MIKE'S TOWING),
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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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Docket: 2001-4453(CPP)
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MIKE HAMBLIN (A PROPRIETORSHIP
OPERATING AS MIKE'S TOWING),
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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
Porter, D.J.T.C.C.
[1] These appeals were heard on common
evidence by consent of the parties, at Edmonton, Alberta on
December 10 and 13, 2002.
[2] The Appellant did not appear
personally, but was represented at the appeals by his ex-wife,
Charlotte Hamblin, who had worked with him in the business at the
material times, and had personal knowledge of the events.
[3] The Appellant has appealed from
the decision of the Minister of National Revenue (the
"Minister") dated August 24, 2001, wherein he confirmed
assessments dated December 22, 2000, for Canada Pension Plan
contributions and employment insurance premiums as follows:
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YEAR
CPP
EI
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1999
$1,675.30
$1,903.72
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with respect to the following workers: Vince Barone,
Daved Hughes, Kevin Klymok, Stan Lowe, James Svekla,
Kalvin Wersgerber
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2000
$1,498.46
$1,455.37
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with respect to the following workers: Vince Barone,
Steven Faemel, Levi Gallant, Wayne Henry,
Daved Hughes, Kevin Klymok, Pasquelino Santoro
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The Reasons given for the decision were that the workers in
question were employed under contracts of service
and were therefore employees of the Appellant. The decisions were
said to be issued pursuant to subsection 27.2(3) of the Canada
Pension Plan (the "CPP Plan") and section 93
of the Employment Insurance Act (the "EI
Act"). This decision was based on paragraph 6(1)(a) of
the CPP Plan and paragraph 5(1)(a) of the
EI Act.
[4] The material facts reveal that the
Appellant, during the periods in question, the 1999 calendar year
and the 1st of January 2000 to November 30, 2000,
operated a tow truck business in the City of Edmonton, Alberta.
In the course of his business, he engaged the workers to operate
his various tow trucks. The engagements were done verbally
and nothing was reduced to writing. The Minister has
determined that the workers were employees engaged under
contracts of service. The Appellant has maintained
that they were independent contractors working under contracts
for services and thus not in insurable or
pensionable employment. That is the principal issue before the
Court.
[5] The secondary issue before the
Court is the amount of the assessments as Ms. Hamblin
claimed, on behalf of the Appellant, that the calculations were
incorrect and that at times certain workers were not even engaged
in work. During the course of the trial, the parties at the
urging of the Court, entered into negotiations over the
calculations and came to an agreement on that issue as set out in
the attached Exhibit A-4 filed with the Court.
[6] The Court indicated that it was of
the view that the Appellant could not succeed on the principal
issue for reasons which would be forthcoming in writing, but that
the assessments should be referred by to the Minister for
reconsideration and reassessments in accordance with Exhibit
A-4. I now turn to deal with the reasons why the Court is
of the opinion that the workers in question were employees
working under contracts of service and not
independent contractors working under contracts for
services.
The Law
Contracts Of/For Service
[7] The manner in which the Court
should go about deciding whether any particular working
arrangement is a contract of service and thus an
employer/employee relationship or a contract for
services and thus an independent contractor relationship, has
long been guided by the words of MacGuigan J. of the Federal
Court of Appeal in the case of Wiebe Door Services Ltd. v.
M.N.R., 87 DTC 5025. The reasoning in that case was
amplified and explained further in cases emanating from that
Court, namely in the cases of Moose Jaw Kinsmen Flying Fins
Inc. v. M.N.R., 88 DTC 6099, Charbonneau v.
Canada (M.N.R.) [1996] F.C.J. No. 1337, and Vulcain
Alarme Inc. v. The Minister of National Revenue, (1999) 249
N.R. 1, all of which provided useful guidance to a trial Court in
deciding these matters.
[8] The Supreme Court of Canada has
now revisited this issue in the case of671122 Ontario Ltd. v.
Sagaz Industries Canada Inc. [2001] S.C.J. No. 61, 2001 SCC
59, 274 N.R. 366. The issue in that case arose in the
context of a vicarious liability situation. However, the
Court recognized that the same criteria applied in many other
situations, including employment legislation.
Mr. Justice Major speaking for the Court, approved the
approach taken by MacGuigan J. in the Wiebe Door case
(above), where he had analyzed Canadian, English and American
authorities, and, in particular, referred to the four-test, for
making such a determination enunciated by Lord Wright in
City of Montreal v. Montreal Locomotive Works Ltd.,
[1974] 1 D.L.R. 161 at 169-70. MacGuigan J. concluded at
page 5028 that:
Taken thus in context, Lord Wright's fourfold test
[control, ownership of tools, chance of profit, risk of loss] is
a general, indeed an overarching test, which involves
"examining the whole of the various elements which
constitute the relationship between the parties". In his own
use of the test to determine the character of the relationship in
the Montreal Locomotive Works case itself,
Lord Wright combines and integrates the four tests in order
to seek out the meaning of the whole transaction.
At page 5029 he said:
... I interpret Lord Wright's test not as the fourfold one
it is often described as being but rather as a four-in-one test,
with emphasis always retained on what Lord Wright, supra,
calls "the combined force of the whole scheme of
operations," even while the usefulness of the four
subordinate criteria is acknowledged. (emphasis mine)
At page 5030 he had this to say:
What must always remain of the essence is the search for the
total relationship of the parties...
He also observed:
There is no escape for the Trial Judge, when confronted with
such a problem, from carefully weighing all of the relevant
factors...
[9] Mr. Justice MacGuigan also said
this:
Perhaps the best synthesis found in the authorities is that of
Cooke J. in Market Investigations, Ltd. v. Minister of Social
Security, [1968] 3 All E.R. 732, 738-9:
The observations of Lord Wright, of Denning L.J., and of the
judges of the Supreme Court in the U.S.A. suggest that the
fundamental test to be applied is this: "Is the person who
has engaged himself to perform these services performing them as
a person in business on his own account?" If the answer to
that question is "yes", then the contract is a contract
for services. If the answer is "no" then the
contract is a contract of service. No exhaustive list has
been compiled and perhaps no exhaustive list can be compiled of
considerations which are relevant in determining that question,
nor can strict rules be laid down as to the relative weight which
the various considerations should carry in particular
cases. The most that can be said is that control will no
doubt always have to be considered, although it can no longer be
regarded as the sole determining factor; and that factors, which
may be of importance, are such matters as whether the man
performing the services provides his own equipment, whether he
hires his own helpers, what degree of financial risk be taken,
what degree of responsibility for investment and management he
has, and whether and how far he has an opportunity of profiting
from sound management in the performance of his task. The
application of the general test may be easier in a case where the
person who engages himself to perform the services does so in the
course of an already established business of his own; but this
factor is not decisive, and a person who engages himself to
perform services for another may well be an independent
contractor even though he has not entered into the contract in
the course of an existing business carried on by him.
[10] In the case of Kinsmen Flying
Fins Inc. case, above, the Federal Court of Appeal said
this:
... like MacGuigan J. we view the tests as being useful
subordinates in weighing all of the facts relating to the
operations of the Applicant. That is now the preferable and
proper approach for the very good reason that in a given case,
and this may well be one of them, one or more of the tests can
have little or no applicability. To formulate a decision then,
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.
[11] The nature of the tests referred to by
the Federal Court of Appeal can be summarized as:
a) The degree or absence of control
exercised by the alleged employer;
b) Ownership of tools;
c)
Chance of profit;
d)
Risk of loss;
In addition, the Court must consider the question of the
integration, if any, of the alleged employee's work into the
alleged employer's business.
[12] In the Sagaz decision (above)
Major J. said this:
...control is not the only factor to consider in
determining if a worker is an employee or an independent
contractor...
[13] He dealt with the inadequacy of the
'control test' by again approving the words of MacGuigan J. in
the Wiebe Door case (above) as follows:
A principal inadequacy [with the control test] is its apparent
dependence on the exact terms in which the task in question is
contracted for: where the contract contains detailed
specifications and conditions, which would be the normal
expectation in a contract with an independent contractor, the
control may even be greater than where it is to be exercised by
direction on the job, as would be the normal expectation in a
contract with a servant, but a literal application of the test
might find the actual control to be less. In addition, the test
has broken down completely in relation to highly skilled and
professional workers, who possess skills far beyond the ability
of their employers to direct.
[14] He went on to say this:
In my opinion, there is no one conclusive test which can be
universally applied to determine whether a person is an employee
or an independent contractor. Lord Denning stated in
Stevenson Jordan, ...([1952] 1 The Times L.R. 101) that
it may be impossible to give a precise definition of the
distinction (p.111) and, similarly, Fleming observed that "no
single test seems to yield an invariably clear and acceptable
answer to the many variables of ever changing employment
relations ..." (p. 416). Further, I agree with
MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, ...
(Vicarious Liability in the Law of Torts. London:
Butterworths, 1967), 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.
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.
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.
[15] I also find guidance in the words of
Décary J.A. in the Charbonneau case (above) when
speaking for the Federal Court of Appeal he said this:
The tests laid down by this Court ... are not the ingredients
of a magic formula. They are guidelines which it will generally
be useful to consider, but not to the point of jeopardizing the
ultimate objective of the exercise, which is to determine the
overall relationship between the parties. The issue is always,
once it has been determined that there is a genuine contract,
whether there is a relationship of subordination between the
parties such that there is a contract of employment ... or,
whether there is ... such a degree of autonomy that there is a
contract of enterprise or for services. ... In other words, we
must not pay so much attention to the trees that we lose sight of
the forest. ... The parts must give way to the whole.
(emphasis mine)
[16] I also refer to the words of
Létourneau J.A. in the Vulcain Alarme case (above),
where he said this:
... These tests derived from case law are important, but
it should be remembered that they cannot be allowed to compromise
the ultimate purpose of the exercise, to establish in general the
relationship between the parties. This exercise involves
determining whether a relationship of subordination exists
between the parties such that the Court must conclude that there
was a contract of employment within the meaning of art. 2085 of
the Civil Code of Quebec, or whether instead there was
between them the degree of independence which characterises a
contract of enterprise or for services....
[17] I am further mindful that as a result
of the recent decisions of the Federal Court of Appeal in Wolf
v. Canada [2002] F.C.J. No. 375, and Precision Gutters
Ltd. v. Canada (Minister of National Revenue-M.N.R.), [2002]
F.C.J. No. 771, a considerable degree of latitude seems now to
have been allowed to creep into the jurisprudence enabling
consultants to be engaged in a manner in which they are not
deemed to be employees as they might formerly been. I am
particularly mindful of the words of Mr. Justice Décary in
the Wolf decision (above) where he said:
"In our day and age, when a worker decides to keep his freedom
to come in and out of a contract almost at will, when the hiring
person wants to have no liability towards a worker other than the
price of work and when the terms of the contract and its
performance reflect those intentions, the contract should
generally be characterised as a contract for services. If
specific factors have to be identified, I would name lack of job
security, disregard for employee-type benefits, freedom of choice
and mobility concerns." (my emphasis)
[18] Thus, it seems to this Court that the
pendulum has started to swing, so as to enable parties to govern
their affairs more easily in relation to consulting work and so
that they may more readily be able to categorize themselves,
without interference by the Courts or the Minister, as
independent contractors rather than employees working under
contracts of service.
[19] In conclusion, there is no set formula.
All these factors bear consideration and as Major J. said in the
Sagaz case (above), the weight of each will depend upon
the particular facts and circumstances of the case. Many of the
tests can be quite neutral and can apply equally to both types of
situation. In such case, serious consideration has to be given to
the intent of the parties. Thus is the task of the trial
Judge.
[20] I also took into account the various
additional authorities placed before by counsel and the Minister,
Kreutz v. M.N.R. [2002] F.C.J. No. 351 (F.C.A.), Custom
Auto Carriers Ltd. v. M.N.R., [1998] T.C.J. No. 936 (T.C.C.),
Johnson v. M.N.R. [1991] T.C.J. No. 728 (T.C.C.),
Always Towing Services (Windsor) Ltd. v. M.N.R. [2000]
T.C.J. No. 494 (T.C.C.), and Guerriero v. M.N.R., [1987]
T.C.J. No. 821 (T.C.C.).
The Facts
[21] In the Replies to the Notices of Appeal
signed on his behalf, the Minister was said to have relied upon
the following assumptions of fact, with which the Appellant
agreed or disagreed as set out in parenthesis:
(a) The Appellant
operates a tow truck business. (Agreed)
(b) The Workers were
hired as tow truck drivers and their duties included towing,
boosting, recovery, and relocation. (Agreed subject to the word
"hired" being the same as "engaged")
(c) The Workers
performed their services in the field. (Agreed)
(d) The Workers
earned a set wage of 30% of the billings. (Disagreed)
(e) The Appellant
set the wage rate. (Disagreed)
(f) The
Appellant controlled the billing rates. (Disagreed)
(g) The Appellant
paid the Workers on a weekly or bi-weekly basis. (Agreed)
(h) The Appellant
controlled the collection and disbursement of monies.
(Disagreed)
(i) The
Workers did not charge the Appellant G.S.T. (Agreed)
(j) The
Appellant obtained and assigned the work. (Disagreed)
(k) The Appellant
provided a dispatcher. (Agreed)
(l) The
Workers were directed by the dispatcher. (Disagreed)
(m) The Workers were in
radio contact with the Appellant. (Agreed - sometimes but not
always)
(n) The Appellant
expected his trucks to be out earning money. (Agreed)
(o) The Appellant
retained the right to control the Workers. (Disagreed)
(p) The Appellant's
approval was required for any replacement drivers.
(Disagreed)
(q) The Workers did
not operate their own businesses. (Disagreed)
(r) The Appellant
provided the tools and equipment required including the truck and
towing accessories. (Disagreed)
(s) The Workers
provided their own clothing and some hand tools. (Agreed)
(t) The
Appellant provided the vehicle insurance. (Agreed)
(u) The Appellant
paid all operating costs including fuel, oil, washes, and general
maintenance. (Disagreed)
(v) The Workers were
not required to incur any operating expenses in the performance
of their duties. (Disagreed)
[22] The Appellant disagreed with item (w),
but in view of the agreement reached between the parties, it has
no relevance to the decision at hand.
[23] The greatest disagreement the Appellant
had with the assumptions of fact related to items (e), (f), (j),
(l) and (r), all of which Ms. Hamblin said involved a sharing
between the Appellant and the Workers. On the whole, I found
Ms. Hamblin to be a truthful, albeit somewhat confused,
witness and except where specifically noted, I have no difficulty
in accepting her evidence on these matters.
[24] With respect to items (d), (e) and (f),
where the Minister found the Appellant set the wage rates, the
evidence was that the 70/30 split was the agreed arrangement
between the parties for all tow jobs, through the dispatch system
operated by the Appellant. In addition, Ms. Hamblin gave evidence
supported to some extent by Vince Barone, one of the
drivers, that the drivers were able to find their own work other
than through the dispatch system. There, the evidence diverges
and to some extent shows the system to be somewhat chaotic.
Ms. Hamblin said that the drivers could set their own rates
for all tow jobs which they picked up themselves, other than
through dispatch, could work for cash, and could keep all such
payments for themselves. She said she would not know in any event
and thus did not try to keep control of this. She described it as
being "gravy" for the drivers. Vince Barone, whilst agreeing that
some drivers may have kept this cash, said that he accounted to
the Appellant for these amounts. I glean that some of these
monies were used to purchase fuel and oil for the trucks and to
do minor repairs and maintenance that the drivers carried out
themselves.
[25] There was a mix of monies coming into
the hands of the drivers and to that extent, the remuneration
received by the drivers was out of the control of the Appellant.
This also deals with item (h) in that the Appellant did not fully
control the collection and disbursement of monies. I find the
whole system was very chaotic and unorganized.
[26] Similarly with respect to item (j), the
Appellant did not obtain and assign all of the work. The
Appellant did find some of it and assign it through the dispatch
system. However, a lot of the other work was found directly by
the drivers, so no one knows how much of this was accounted for,
if any, on any particular day.
[27] Ms. Hamblin disputed the assumption
that the Appellant retained the right to control the workers
(item (o). On the evidence, it is clear that for a great deal of
the time, the Workers were left to their own resources.
However, they had the Appellant's trucks in their possession and
I cannot believe that the Appellant could not have at any time
recalled those trucks, which of course would be the ultimate
exercise of control. In addition, it was clear from the evidence
that dispatched calls had to take priority over work generated by
the drivers themselves. Thus, I am satisfied that the Minister
was correct in his assumption in this respect.
[28] With respect to replacement drivers
(item (p), it seems from the evidence that there was a great deal
of trading backwards and forwards between the drivers. However,
for insurance purposes, they had to have prior approval from the
insurers through the Appellant and thus, in turn, approval from
the Appellant. They could not just turn the trucks over
anybody without reference to the Appellant for this approval.
[29] With respect to item (r), the trucks
and the basic accessory equipment to go with them were provided
by the Appellant. However, many of the drivers who were
experienced tow truck operators, brought into use their own
equipment which they had accumulated over time and preferred to
use. Thus, the major equipment was provided by the
Appellant. There was not an insignificant amount of equipment
also provided by some but not all the drivers. The exact details
of who had what in any particular case was not clear from the
evidence.
[30] With respect to item (u) regarding
fuel, oil, washes and general maintenance, there appears to have
been further confusion. All major maintenance and repair was
clearly done by the Appellant. All running maintenance involving
relatives by minor expense seems to have been done by the drivers
themselves, using cash they had collected from customers. Whether
this came from the 30% or the 70% or other cash they had
collected is not clear. It probably was mix of all three. Fuel
generally seems to have been paid by the Appellant. The drivers
used their cash to purchase fuel and then produced the invoices
to the Appellant. On the other hand, they made personal use
of the trucks with their families from time to time, so again
that seems to be quite a grey area here.
[31] It is clear that in issuing invoices to
customers, the drivers used forms provided by the Appellant with
the Appellant's logo or name on them. The trucks also bore the
name "Mike's Towing" and the drivers carried business cards
bearing the same name.
[32] On the whole, I found that a very
confusing and chaotic relationship existed between the drivers
and the Appellant. The drivers used the trucks for their own
purposes and may or may not have accounted for all or some of the
cash funds collected. Ms. Hamblin was of the view that this is
what made the drivers really independent contractors. However,
the evidence was quite deficient in any kind of detail and her
assertions in this respect are not entirely consistent with the
evidence of Mr. Barone, who said that he accounted for this
cash.
[33] In the final analysis, I find that
although Ms. Hamblin did her very best in giving her evidence,
she was not able to deal in any way with any specifics and to
this extent, her evidence was somewhat unsatisfactory.
Application of the Various Factors to the
Evidence
[34] Although perhaps the necessity of
reviewing the four-in-1 test referred to in the Wiebe Door
decision (above) has now been somewhat diminished by the decision
of the Supreme Court of Canada in the Sagaz case (above)
it is still in my mind, a useful exercise to go through.
The Federal Court of Appeal considered as much in both the
Wolf decision (above) and the Precision Gutters
decision (above). There are obviously difficulties with each one
of the aspects of this test, but they are still of assistance to
a trial Judge to a greater or lesser extent, depending upon the
circumstances.
[35] Title: It must still
be clearly understood that even where the parties choose to put a
title on their relationship, if the true nature and substance of
the arrangement does not accord with that title, it is the
substance to which the Court must have regard. That legal
principle has not changed (see Shell Canada Ltd.
v. Canada [1999] S.C.J. No. 30). Having said that, it is
also fair to say that where the parties genuinely choose a
particular method of setting up their working arrangement, it is
not for the Minister or this Court to disregard that choice. Due
deference must be given to the method chosen by the parties and
if on the evidence as a whole there is no substantial reason to
derogate from the title chosen by the parties, then it should be
left untouched. The Wolf and Precision Gutter cases
very much substantiate that proposition.
[36] In this case, the Appellant and the
various drivers entered into verbal contracts, the exact details
of which are far from clear. Although Ms. Hamblin puts the
title of a contract for services upon these
arrangements, there is no evidence before the Court that the
drivers themselves viewed it in this way. I need, however, to
look at all of the other factors in order to see if the substance
of the arrangement accords with the written contract.
[37] Control: As this aspect of
the test has been traditionally applied, it has been consistently
pointed out that it is not the actual control so much as the
right to control that it is important for the Court to consider.
The more professional and competent a person is or the more
experience they have in their field, the less likely there is to
be any actual control, which creates difficulty in applying this
test. Indeed as Major J. pointed out in the Sagaz case
(above), there may be less control exercised in the case of a
competent professional employee than in the case of an
independent contractor. Nonetheless, it is another factor to be
weighed in the balance.
[38] I find that there was an element of
control exercised by the Appellant over the drivers.
Whilst, if they did not have any dispatch calls to attend to,
they were free to pick up work themselves, it was clear that they
were required to give priority to the dispatch calls. They
were also required to be on duty 24 hours a day, 7 days per week,
and if unable to do so, were required to turn the truck over to
another driver. I do not find that the drivers could simply
refuse to go on dispatch calls. Had they chosen to do so, they
would no doubt have been relieved of their trucks quite
quickly.
[39] This factor, in my view, favours a
finding on balance of a contract of service with an
employee.
[40] Tools and Equipment: Whilst
there were not significant pieces of equipment provided by
various drivers of their own choice, the major items of equipment
were provided by the Appellant, namely the trucks. In addition,
the Appellant provided 2-way radios in the trucks, and all
beepers to the drivers so that they could be called at any
particular time. Whilst I am mindful of the decision in the
Precision Gutters case (above) on balance, in my mind,
this factor indicates more an employee relationship than that of
independent contractor.
[41] Profit and Loss: There was
certainly an element of freedom in the hands of the drivers as to
how much work they took on. If they did not wish to work, they
could turn the truck over to another approved driver. They also
had the opportunity to go out and look for work themselves with
the truck and would make an unknown amount of money in cash for
such work. This certainly has, to some extent, an entrepreneurial
element to it. However, it seems that they were still required to
account to the Appellant, according to the evidence of the
witness Barone, for amounts received. Those who had their own
equipment, of course, risked the expense of damaging or losing
that equipment. However, there was no precise evidence as
to how much they had invested or how many of the drivers had
their own equipment. Thus, although there is an element of profit
and loss here, the evidence is not particularly forthcoming on
either of these points. If anything, in my mind, it would favour
a finding of independent contractor relationships.
[42] Integration: This again
has been found by the Courts to be a difficult test to apply. The
question frequently asked is "whose business is it?". Clearly,
that has to be asked from the point of view of the worker and not
the payor, as from the latter's point of view it is always in
business. The context in which the question must be asked is
whether there are one or two businesses. In other words, is the
person who has engaged himself or herself to perform these
services, performing them as a person in business on his or her
own account. If the answer to that question is yes, then the
contract is a contract for services. If the answer
is no, then it is a contract of service.
[43] Whilst in my view, there is some
entrepreneurial element to the manner in which some of these tow
truck drivers worked for the Appellant, the evidence really is
totally lacking as to the extent of that. As I say, it was a
chaotic relationship which existed between the drivers and the
Appellant. The one constant was that the drivers when they drove,
were driving trucks which bore the name of the Appellant and they
invoiced the customers in the name of the Appellant. I glean from
the evidence that some of the cash jobs would have no invoices on
them at all and nobody would know what they had received, but
that hardly takes them outside of an employment relationship for
the work done that was recorded. To the extent that records were
kept, the work that was done was done, in my view, as part of the
business of the Appellant and not as part of any independent
business of any of the tow truck drivers. I am unable to come to
the conclusion on the vague evidence placed before me that
because they did some cash jobs for which they did not account,
they are somehow no longer employees of the Appellant and in
business for themselves.
Conclusion
[44] When I look at the forest as a whole as
well as the individual trees, I am not satisfied on the evidence
that the Appellant has met the onus upon him of showing that the
Minister's decision was incorrect in this case. The basic working
conditions of the drivers lend themselves on balance to an
employer/employee working relationship rather than an independent
contractor relationship. Thrown into that is the confusing
situation with regard to a lot of the cash jobs taken on by the
drivers, of which there appears to have been no accounting when
invoices were not issued. In Mr. Barone's case, clearly he
did account for those monies and I am unable from the evidence to
establish what amounts, if any, the other drivers may have earned
in this manner. On balance, when I weigh all of the evidence, I
am of the view that preponderance of the evidence leads to a
conclusion that the drivers were engaged as employees and not as
independent contractors and thus were in insurable and
pensionable employment during the period in question.
[45] In the result, the appeal is allowed
and the assessments are referred back to the Minister for
reconsideration and reassessment on the basis and set out in
Exhibit A-4 of the calculations agreed upon by the parties,
which is reproduced and attached to these Reasons.
Signed at Calgary, Alberta, this 23rd day of May 2003.
D.J.T.C.C.
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