Edmonds v. M.N.R., docket 98-45-UI

Date: 20000221

Docket: 98-45-UI

BETWEEN:

MAE EDMONDS, O/A A-1 LUMPERS,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Cain, D.J.T.C.C.

[1] This is an appeal by the Appellant from a determination of the Respondent dated October 17, 1997 that workers engaged by her for the year 1997, hereinafter referred to as "the period in question", were engaged in insurable employment as a employer relationship and a contract of service existed between them. The Respondent relied on paragraph 6(g) of the Employment Insurance Regulations and paragraph 12(g) of the Unemployment Insurance Regulations.

[2] The Appellant married after the commencement of the appeal and is now known as Mae Leblanc. Any reference in the transcript of these proceedings to "Mae Leblanc" or "Mrs. LeBlanc" are references to the Appellant.

[3] The Respondent based his determination on the assumptions set out in his Reply to the Notice of Appeal dated March 19, 1998 as follows:

"(a) the Appellant is a sole proprietor whose business consists of providing temporary workers to unload the merchandise delivered by shipping companies to food warehouses in the Moncton area;

(b) these temporary workers are referred to as "Lumpers";

(c) the Appellant receives the information about the time and location where the Lumpers are needed from the shipping companies after they have made appointments with the particular warehouse for delivery;

(d) this service is necessary because contracts for merchandise transport include goods delivered and unloaded and it is up to the shipping companies to organise the unloading;

(e) the shipping companies contact the Appellant to advise of deliveries;

(f) the Appellant is responsible to provide Lumpers at the time and location specified by the shipping companies;

(g) the actual unloading is directed by the receivers of each warehouse;

(h) the Appellant is financially responsible for the damage to the merchandise during unloading;

(i) the Appellant pays the Lumpers in cash per load and bills the trucking companies for the work done on a per load basis;

(j) schedules of deliveries are not posted outside the warehouses;

(k) the Lumpers are not hired off the street by the warehouse receivers;

(l) the warehouse receivers do not hire the Lumpers, nor do they deal with the Appellant;

(m) there was a contract of service between the workers and the Appellant".

[4] The Appellant admitted assumptions (b), (c), (e), and (g) but denied each and every other assumption therein contained.

Analysis of the Evidence

[5] I was not impressed with the evidence of the Appellant. While she may not have violated her oath, I found that she was less than forthcoming in offering a full explanation of her operations.

[6] She admitted that she contracted with carriers to unload trucks, engaged lumpers to perform this service from a roster of available workers she kept in her office, paid the lumpers for the work performed on a weekly basis and then billed the carrier for the contract price. These represent the standard characteristics of an employer-employee relationship.

[7] She was adamant that she never settled the hourly rate to be paid the lumpers until the job was finished. She did however testify that there were standard hourly rates and load rates that were respected by lumpers and if she was presented with a claim from a lumper that she considered unreasonable, she would refuse to pay it. If in fact no negotiation of rates occurred before the work was performed I am satisfied that both the Appellant and the lumper knew what the rate was. Otherwise every contract would be a gamble both for the Appellant and the lumper. No lumper was called to testify that he entered upon an engagement without knowing what he would be paid. I clearly got the view from her evidence that there was a close relationship between the lumpers and the Appellant.

[8] The Appellant led evidence through two witnesses who said that they negotiated deals with truck drivers without prior consultation with the Appellant or any other broker. After the work was completed, the lumper took the particulars of the work and tried to sell them to the highest bidder who would in turn bill the shipper. One testified that he sold the particulars to the Appellant but also to other brokers. Neither introduced evidence of any such transactions and evidence of such a transaction would have been in the custody of the Appellant.

[9] While I am sceptical of this evidence I have no reason to disbelieve it. However as their evidence relates to the Appellant, I would speculate the lumper knew that the Appellant probably represented the carrier before, had a good working relationship with it and that she would pay, what one described as the average, 65% of the contracted price. The only explanation offered for this practice was that they got their money immediately. An additional 35% would have been an incentive to either get the money from the driver or bill the carrier directly.

[10] Finally, the Appellant presented no evidence of the financial operation of her business to confirm suggested losses that she would have suffered because of the way business was conducted. That would have lent an air of reality to her evidence but in the final analysis would not have changed the employer-employee relationship that existed.

[11] The Crown called two warehouse receivers responsible for receiving the goods at their final destination and one carrier supervisor responsible for arranging the off loading of the goods. The receivers and the supervisor were familiar with the Appellant's operation and testified that they always dealt directly with her and not with lumpers.

Facts

[12] The Court makes the following finding of facts.

[13] The Appellant established herself as a labour broker during the period in question to service carriers of goods who required assistance in off loading their cargo when reaching its ultimate destination.

[14] The Appellant operated her business in several ways. Firstly she might attend at a warehouse destination, check the schedule of arrivals and contact the carrier directly. Or the truck driver of the carrier would contact her on his arrival. Or a lumper who was knowledgeable of arrivals might call her. Or the person at the warehouse responsible for scheduling of the off loading of the goods at a warehouse, called a "receiver", in discussion with either the driver or the actual shipper might call the Appellant. Or the carrier might contact the Appellant directly.

[15] The Appellant, once informed, would negotiate a price with the carrier. In the trade there were established hourly rates or lump sum prices for off loading particulars loads. The Appellant in turn would engage lumpers. There were established standard hourly rates for lumpers. The lumpers would report to either the receiver or the truck driver and the truck would be unloaded. It was the receiver's task to select the location in the warehouse where the goods would be placed and also the time within which the truck was to be unloaded. The lumpers were supervised by the truck driver and the receiver.

[16] Once the truck was unloaded, either the truck driver or the receiver would mark the bill of lading or purchase order to signify that the unloading was complete, the time required and the identity of lumpers. Either that document or the particulars thereof would be delivered to the Appellant who would bill the shipper for the agreed price. The Appellant would pay the lumper at the end of each week. Payment was either in cash or by prearrangement, the Appellant deposited the monies due the lumper in a local bank.

[17] In support of her appeal the Appellant submitted that since the lumpers negotiated their rates of pay and worked for other lumpers as well as her, they were independent contractors. Neither of these submissions has any merit. The fact that an employee may only work from time to time with an employer and negotiates a different rate on each engagement, does not make them any less of an employee. That the Appellant did not directly supervise the employees also has no merit in the face of paragraph 6(g) of the Employment Insurance Regulations which reads as follows:

"6. Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment:

(g) employment of a person who is placed in that employment by a placement or employment agency to perform services for and under the direction and control of a client of the agency, where that person is remunerated by the agency for the performance of those services."

[18] The Appellant represented the carrier, supplied and paid the lumpers and their work was jointly supervised by the carrier's driver and the receiver.

[19] I am satisfied that the evidence led by the Appellant has failed to demolish any of the assumptions of the Respondent and in particular assumptions (a), (d), (f) and (i) to (m).

[20] Evidence was led in respect to assumption (h) to show that the Appellant was not responsible for any damaged goods. It appears that the carrier had to answer to the warehouse for such damage. In any event, even if it was a condition of employment of lumpers, that condition would not alter the relationship of employer-employee.

[21] I dismiss the appeal and confirm the decision of the Respondent.

Signed at Rothesay, New Brunswick, this 21st day of February 2000.

"Murray F. Cain"

D.J.T.C.C.