Date: 19971002
Docket: 97-19-UI
BETWEEN:
ROD TURPIN CONSULTING LTD.
o/a TUNDRA SITE SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
DAN MONAGHAN,
Intervenor.
Reasons for Judgment
Teskey, J.T.C.C.
[1]
The Appellant (the "payor") appeals from a
determination by the Minister of National Revenue (the
"Minister") that for the period November 11, 1995 to
December 16, 1995, Dan Monaghan was in insurable employment
with the Appellant.
[2]
The Intervenor did not attend at the hearing. The only oral
evidence at hearing was that of Arthur Roderick Turpin
("Turpin") the sole officer, director and shareholder
of Rod Turpin Consulting Ltd.
[3]
When the Respondent was making the determination, she relied upon
facts which were reproduced in paragraph 8 of the Reply to the
Notice of Appeal.
[4]
The testimony of Turpin substantially confirmed all the facts
assumed by the Minister in making her determination, namely:
a)
The payor is in the business of leasing and providing technical
overload services to its clients and, in respect of this, the
Payor places workers capable of providing such services with its
clients;
b)
the Worker is a journeyman electrician;
c)
the Payor hired the Worker to perform services for Cominco;
d)
Cominco is a client of the Payor;
e)
the Worker performed his services for Cominco at their place of
business which was a site known as Polaris Mines;
f)
in respect of his services to Cominco, the Worker was paid by the
Payor at a rate of $28 per hour for actual hours worked and $24
per hour for travelling time;
g)
the Worker was required to submit a time sheet to the Payor in
order to receive payment;
h)
the Worker was paid by the Payor weekly by cheque;
i)
the Worker was supervised in the performance of his duties by a
foreman from Cominco who oversaw the Worker's work on a
full-time basis;
j)
the Worker's work was inspected and reviewed by
Cominco;
k)
the personal service of the Worker was required;
l)
the Worker could not hire any helpers;
m)
the Worker was not free to choose which jobs he would work on as
the foreman of the crew assigned each crew members their
tasks;
n)
the Worker repaired incorrectly done work during normal working
hours;
o)
the Worker was required to use both power and hand tools to do
his job;
p)
other than hand tools that were supplied by the Worker, Cominco
supplied the power tools, supplies and materials and other
equipment required by the Worker to perform his duties;
q)
the contract between the Payor and the Worker stated, inter
alia:
(i)
that the Worker agrees to provide its services for clients of the
Payor namely Cominco Ltd.-Polaris Mines and to provide such
services as may be directed by the aforementioned clients;
and
(ii)
the Worker covenants and agrees that he will not without prior
written consent of the Payor until a period of three months has
elapsed from the date of the termination of the contract, either
directly or indirectly:
a)
become an employee of the client;
b)
enter into contract with the client without the written consent
of the Payor;
c)
perform any work for or on behalf of the client without all
compensation therefore being given to the Payor; and
d)
enter in any agreement or otherwise with a business competing
with the Payor to perform any work, services or other benefits
for the client.
[5]
The slight variations to these assumed facts are as follows:
a)
this was only part of the Appellant's business.
g)
the workers were paid for 12 hours each day eventhough work could
not be performed due to weather conditions.
i)
the supervisor was a worker supplied to Cominco by the
Appellant.
k)
the written contract is silent on this fact and the assumption
has not been displaced.
[6]
The contract between the Appellant and Cominco was verbal.
Cominco would contact the Appellant and say we need so many
journeymen electricians at the Polaris Mines site starting on
such and such a date for approximately such and such a period.
The Appellant would find the necessary journeymen electricians
and arrange to get them to the Polaris Mines site.
[7]
The Appellant's responsibility to Cominco was only to the
extent that the personnel it provided were qualified to do the
work that was to be performed.
Analysis
[8]
Paragraph 12(g) of the Unemployment Insurance Act
Regulations during the period in question reads:
12.
Employment in any of the following employments, unless it is
excepted employment under subsection 3(2) of the Act or
excepted from insurable employment by any other 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 such
services.
[9]
The Respondent's position is that the Appellant by its
actions was acting as a placement or employment agency within the
provisions of Regulation 12(g) and relies upon the
decision of the Federal Court of Appeal in Sheridan v.
M.N.R., released March 21, 1985.
[10] The
Appellant argues that it is not a placement agency but to look at
it as a general contractor. This I cannot accept. General
contractors usually by the terms of their contracts with clients
are responsible to the client to construct the project contracted
to be constructed in a good and workmanlike manner. Herein, the
only responsibility the Appellant had to Cominco was to provide
qualified workers as specified by Cominco.
[11] The
Appellant was acting as a placement agency in respect of this
worker. The Appellant was asked to provide a journeyman
electrician which it did. It paid the electrician and charged the
wages to Cominco together with a fee for services.
[12] The
appeal is dismissed and the Minister's determination is
affirmed.
"Gordon Teskey"
J.T.C.C.
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