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Citation: 2003TCC697
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Date: 20031004
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Dockets: 2002-1067(EI)
2002-1069(CPP)
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BETWEEN:
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P&D INVESTMENTS LTD.,
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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.
[1] These appeals were heard on common evidence
by consent of the parties, at Prince Albert, Saskatchewan, on the 6th
day of August 2003.
[2] The Appellant has appealed from the
decisions of the Minister of National Revenue (hereinafter called “the Minister”)
dated the 18th of December 2001, that the employment of Ernest
Lister (the "Worker") with it from January 1, 2000 to December 29,
2000 was both insurable and pensionable under the Employment Insurance Act
(the "EI Act") and the Canada Pension Plan (the "CPP")
respectively, for the following reason:
Ernest Lister was engaged under a contract
of service; therefore he was your employee.
The decision was
said to be issued in accordance with section 93 of the EI Act and
subsection 27.2(3) of the CPP and was based on subsection 5(1) of the EI
Act and paragraph 6(1)(a) of the CPP respectively.
[3] The established facts reveal that the
Appellant, at the material times, was in the delivery business, delivering
cargo and merchandise in and around the City of Prince Albert. It had a
contract with an organization called Dynamex Canada Inc. to deliver their
goods. The Worker was engaged by the Appellant to drive a delivery vehicle and
deliver the goods. The Minister has decided that he was engaged as an employee
under a contract of service. The Appellant to the contrary,
maintains that the Worker was an independent contractor working under a
contract for services. That is the issue before the Court.
The Law
Contracts
Of Service/For Services
[4] 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.
[5] The Supreme Court of
Canada has now revisited this issue in the case of 671122 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 Weibe Door case (above), where he had analyzed Canadian, English and American authorities,
and, in particular, referred to the four tests, 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…
[6] 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.
[7] 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.
[8] 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.
[9] 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…
[10] 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.
[11] 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.
[12] 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)
[13] 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….
[14] 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)
[15] 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.
[16] 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.
The Facts
[17] In the Reply to the
Notices of Appeal, signed on his behalf, the Minister admitted the following
facts contained in the Appellant’s Notice of Appeal:
(a)
That
the Appellant had a contract with Dynamex Canada Inc. (“Dynamex”).
(b)
That
the Worker picked up freight from the Appellant’s premises.
(c)
That
the deliveries were done for those who used the services of Dynamex.
(d)
That
the Appellant had contracts with the customers.
(e)
That
the Worker had to complete delivery sheets.
(f)
That
the Worker’s wages were not dependent on the number of deliveries made or hours
worked.
[18] In the said Replies
to the Notices of Appeal, the Minister was also said to have relied upon the
following assumptions of fact (I have set out the agreement or disagreement of
the Appellant in parenthesis), namely:
a) the
Appellant is in the delivery business; (Agreed)
b) the
Appellant entered into a contract with Dynamex to deliver merchandise for
Dynamex; (Agreed)
c) the
Worker was hired as a driver and his duties included delivering goods,
packages, documents, and other cargo; (Agreed, subject to word
"hired" meaning no more than "engaged" and
"duties" being no more than "contractual obligations". His
work was agreed.)
d) the
Worker performed his services at the Appellant's premises and in the field;
(Agreed)
e) the
Worker earned a set wage of $60.00 per day (originally $50.00 per day);
(Disagreed)
f) the
Worker was paid semi-monthly; (Agreed)
g) the
Appellant set the Worker's rate of pay; (Disagreed)
h) the
Worker did not invoice the Appellant; (Agreed)
i) the
Worker normally worked from 8:00 a.m. to 5:00 p.m., Monday to Friday;
(Disagreed)
j) the
Appellant controlled the Worker's hours and days; (Disagreed)
k) the
Appellant obtained and assigned the work; (Disagreed)
l) the
Appellant set all deadlines in accordance with the contract the Appellant
entered into with Dynamex; (Agreed - with some explanation)
m) the
Appellant was responsible for fulfilling the contract it entered into with
Dynamex; (Agreed)
n) the
Appellant instructed and monitored the Worker; (Disagreed)
o) the
Appellant instructed the Worker, on his route and cargo, on a daily basis;
(Disagreed)
p) the
Worker did not have the power to accept or refuse work; (Disagreed)
q) the
Worker was required to complete reports; (Agreed - with explanation)
r) the
Appellant told the Worker where to fuel up the vehicle; (Disagreed)
s) the
Worker could not replace himself or hire his own helpers; (Disagreed)
t) the
Appellant controlled all pricing, billing, and money collection; (Agreed - with
explanation)
u) the
Worker wore clothing with Dynamex's logo on it; (Agreed)
v) the
vehicle driven by the Worker had Dynamex's logo on it; (Agreed)
w) the
Appellant provided all of the tools and equipment required including the
vehicle, a mobile phone, wheelers, and the business premises; (Disagreed)
x) the
Worker used different vehicles during the period under review and a mobile
phone was included in each vehicle; (Agreed - with explanation)
y) the
Worker did not enter into a vehicle lease agreement with the Appellant;
(Disagreed)
z) the
vehicle was required to be parked at the Appellant's premises; (Disagreed)
aa) the
Appellant paid for all vehicle operating costs including fuel, maintenance,
licence, registration and insurance; (Disagreed)
bb) the
Appellant supplied the Worker with a gas card; (Agreed - with explanation)
cc) the
Appellant provided all the forms and supplies required; (Agreed - with
explanation)
dd) the
Worker did not incur any expenses in the performance of his duties; (Disagreed)
ee) the
Worker had no control over the vehicle operating expenses and never saw expense
receipts; (Disagreed)
ff) the
Worker did not charge the Appellant G.S.T.; (Agreed)
gg) the
Worker was employed under a contract of service with the Appellant. (This is
the issue in the appeal)
[19] Evidence
was given on behalf of the Appellant by Diane Lavoie (“Lavoie”) who along with
her husband, owned all the issued shares in the Appellant corporation. In
addition, she worked as the secretary in the business. Evidence was also given
by Ernest Lister (“Lister”), the Worker in question.
[20] Lavoie
explained that Dynamex is a large freight carrier which brings freight into
Prince Albert and leaves it at the office building that it shared with the
Appellant. In fact, Lavoie worked for Dynamex at the same time, as a
dispatcher. The Appellant would then distribute that freight out to the various
points to which it was consigned. Similarly, I understood it would collect in
freight to go elsewhere which in turn, would be taken out by Dynamex.
[21] To
carry the freight to the outlying places, the Appellant engaged workers,
including Lister, to drive a number of different vehicles which it owned.
[22] Each
worker was required to sign a contractor application and a form of agreement
whereby they agreed to work as independent contractors to deliver the freight
on behalf of the Appellant and to provide their own vehicles to perform that
service. The agreement (Exhibit A-1) is a standard independent contractor
agreement, making it perfectly clear that the Worker is not an employee of the
Appellant.
[23] Lavoie
said in her evidence, that she gave Lister a copy of this agreement and went
over it with him. She was, however, unable to find any copy signed by him.
Lister said in evidence that he had been given a copy of the agreement, that he
took it home with him and never did sign it as there were too many things about
it with which he did not agree. Nevertheless, he started to work for the
Appellant.
[24] I
accept Lister’s evidence that he never signed or committed to the terms of this
agreement and thus the written document is, in essence, a non-issue.
[25] Lavoie
said there was also a second contract which formed part of Exhibit A-1,
whereby the Appellant leased to the Workers a mobile phone. Again, there is no
signed copy available and I find that this also was not in fact signed by Lister.
[26] Some
workers who had their own vehicles may have worked as independent contractors,
under the terms of the written contract. The actual arrangements with workers
such as Lister, although ostensibly the same to an outsider, were in fact
somewhat different. They did not own their own vehicles. They entered into a
concocted scheme whereby they purported to lease vehicles from the Appellant.
In fact, they did not lease them and the whole arrangement was a sham. How it
worked was revealed in the balance of Lavoie’s evidence.
[27] She
said some people wanted to be independent contractors but did not have the
necessary funds to purchase their own vehicles.
[28] She
said the workers bid on the routes they wished to run. The route was assigned a
dollar figure based on their experience as to what was involved. It appears
that Lister started at $50.00 per day for his route and worked up to $60.00 per
day. It was a flat rate. There were no extras. The driver delivered whatever
was required along that route and received the same amount for the day whether
there was one, ten or one hundred packages to deliver.
[29] Ostensibly,
Lister was required to lease his vehicle from the Appellant for $150.00 per
month. He also ostensibly leased his radio equipment, and paid his fuel and
vehicle licenses. In fact, he did none of those things. Exhibit R-I shows a
typical pay stub. The pay stub would be calculated by adding up the number of
days the driver worked at the rate for his route, and then adding to it a cost
of the lease of $150.00, cost of renting radio equipment $29.43, cost of fuel
whatever it was, license and insurance costs of $31.24, to show a gross figure
of pay. From that gross figure would then be deducted those same items to show
a net figure which was the original figure. In other words, these costs were
artificially added on, in a hidden way, and then shown as a deduction off that
figure. In fact, they were never paid. To an outside eye, however, they would
appear as expenses. In reality, they were a fiction.
[30] The
only item which was genuinely deducted was the amount of the insurance
deductible that Lister agreed to pay as he had had three accidents. That was a
genuine figure and came off at $50.00 per month up to $500.00 in total.
[31] Apart
from the fact that there was in fact no lease payment, the other flaw in the
claim that Lister leased a vehicle was that there were three vehicles in total
and he had a choice of those three to make each day, depending upon what he was
delivering. Thus, there was no set vehicle of which he had the use.
[32] In
the result, to claim that he leased a vehicle in lieu of supplying his own was
nothing more than a fiction. He did not provide or lease any vehicle. He used
different vehicles belonging to the Appellant. I do not go so far as to say
that this was a deliberate deception on the part of the Appellant. However, it
clearly was a complete sham, for whatever the purpose for which it was set up.
[33] There
was a considerable divergence on the evidence between Lavoie and Lister. I
noted also that Lavoie’s husband sat through the case without giving evidence.
On the whole, where there was a difference, I accept Lister’s evidence as being
the more credible.
[34] Lavoie
seemed to indicate that the workers could come and go as they pleased. Lister
said he was expected to be at the office Monday to Friday before 8:00 a.m. I
accept his evidence.
[35] Lavoie
said Lister could use the truck he leased as he saw fit. Lister said it had to
be returned each day and that although he did in fact use it once to move his
personal belongings, he was not allowed to use it for personal reasons. Again,
I accept his evidence.
[36] Lavoie
said the drivers could have others fill in for them. Lister said he was not
allowed to get somebody else. It would not have been economically practical in
any event. Again, I accept Lister’s evidence.
[37] Lavoie
said he could fill in his report whenever he chose. Lister said he had to do it
at the office each day at the end of his run. Again, I accept Lister’s
evidence.
[38] Lavoie
said he could leave at the end of his run. He said he had to come back and do
any other deliveries they needed. He only went home early on one occasion.
Again, I accept Lister’s evidence.
[39] Lavoie
said they left the drivers to organize their own routes as long as deliveries
were made during business hours. Lister said he was told sometimes to wait for
special deliveries, leading to 11 hour days, despite his concerns about being
overtired due to the long hours. Again, I accept Lister’s evidence.
[40] In
all these instances, I accept the evidence of Lister. He struck me as being a
reliable witness. Lavoie, on the other hand, presented this fiction about the
leasing arrangements, purported to have me believe there was a written contract
with Lister, when in fact it had not been signed and generally lacked the same
forthrightness in her evidence that I saw in that of Lister.
Application
of the Factors to the Evidence
[41] Title: It must 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 Gutters cases
very much substantiate that proposition.
[42] In
this case there was no clear agreement about the title to be put upon the
working arrangement. Whilst the Appellant sought to establish, via a written
contract an independent contractor arrangement, in fact Lister declined to sign
it or agree to its terms. I find there was no meeting of the minds on this
point. The Appellant wanted contractual arrangement. Lister was content to be
an employee working under a contract of service and that is what he
considered he was doing.
[43] 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 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.
[44] In
this case, I find there was a great deal of control exercised over Lister by
the Lavoies, from the hours he worked, both at the start and end of the day,
through how he was paid, (although he could bid for better routes when they
became available), to how he used the truck, staying off gravel roads and out
of rural areas, and completed his reports. This factor points distinctly to an
employee working under a contract of service.
[45] Chance
of Profit/Risk of Loss: However hard he worked, it was impossible
for Lister to earn extra money. His daily rate for the route remained the same.
Similarly, there was no exposure to loss, save for his payment of the
deductible, which I gleaned came to an end when he quit, so there was no
ongoing loss.
[46] There
was quite simply, no entrepreneurial element to this work whatsoever. He was
simply paid for his route, almost as if paid by the piece. This factor points
clearly to an employer/employee relationship, not to that of an independent
contractor.
[47] Tools
and equipment: It is apparent from the evidence, as it finally came
out, that Lister provided nothing by way of tools and equipment. The Appellant
provided the truck, radio and bore the expenses. This is entirely consistent
with an employer/employee relationship.
[48] Integration: Lastly, I come to the question of whether the work
the Workers were doing was done as an integral part of the business of the
Appellant, in which case it is said to be integrated into it and done as an
employee working under a contract of service; or whether the work, although
done for the business of the Appellant, was not integrated into it but was only
accessory to it, in which case it is done by an independent contractor working
under a contract of service. In other words, was there one or two (several)
businesses working here.
[49] Lister
was not of the view he was running any business of his own. Everything he did
was in connection with the business of the Appellant. In my view, his work was
totally integrated into the business of the Appellant. As I say, there was no
entrepreneurial element to his work. These factors clearly point also to an
employee situation.
Conclusion
[50] When
I look not just at the individual trees but at the forest as a whole, I am left
overwhelmingly with the view that this work was carried out by the worker as
part and parcel of the business of the Appellant as an employee working under a
contract of service.
[51] I
have some sympathy for the Appellant in that it has received different rulings
from the Minister in the past with respect to other workers. However, I make no
comment on the reliability of the evidence presented to the Minister in those
cases. In this case, I can only say that it took some probing to uncover the
true situation. I have no idea whether the evidence presented to the Minister
was the same or different and thus, these prior cases, although perhaps
confusing to the Appellant, are of no assistance to it in the present appeal.
In any event, the Minister is not estopped from deciding as he did as a result
of those prior decisions. Each case turns on its own facts.
[52] In
the result, the appeals are dismissed and the decisions of the Minister are
confirmed.
Signed at Calgary, Alberta, this 4th day of
October 2003.
Porter,
D.J.
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