Dockets: 2012-1360(EI)
2012-1359(CPP)
BETWEEN:
HIRE
ROLLER INC.,
appellant,
and
THE MINISTER OF NATIONAL REVENUE,
respondent,
and
GREG WOLSKI,
intervener.
____________________________________________________________________
Appeals
heard on November 13, 2012, at Toronto, Ontario.
Before: The Honourable
Justice Robert J. Hogan
Appearances:
|
Agent for the appellant:
|
James
T. Marley
|
|
Counsel for the respondent:
For the intervener:
|
Cherylyn Dickson
The intervener himself
|
____________________________________________________________________
JUDGMENT
The appeals with respect to the decisions of the
Minister of National Revenue, made under the Employment Insurance Act and the Canada Pension Plan, that Greg Wolski
was employed by the appellant in insurable and pensionable employment during
the period from January 1, 2010 to January 13, 2011 are dismissed and the
Minister’s decisions are confirmed in accordance with the attached reasons for
judgment.
Signed at Ottawa, Canada, this 16th day of January 2013.
“Robert J. Hogan”
Citation: 2013 TCC 10
Date: 20130116
Dockets: 2012-1360(EI)
2012-1359(CPP)
BETWEEN:
HIRE ROLLER INC.,
appellant,
and
THE MINISTER OF NATIONAL REVENUE,
respondent,
and
GREG WOLSKI,
intervener.
REASONS FOR JUDGMENT
Hogan J.
Introduction
[1]
These are appeals from
determinations by the Minister of National Revenue (the “Minister”) that Greg
Wolski (the “Worker”) was an employee of Hire Roller Inc. (the “appellant”)
during the period from January 1, 2010 to January 13, 2011 (the “Period”) for
the purposes of the Employment Insurance Act (the “EIA”) and the Canada
Pension Plan (the “CPP”).
[2]
The appellant requested
a review of those determinations, which were confirmed. The Worker appeared as
an intervener to support the Minister’s determinations.
[3]
The appellant submits that
it has presented sufficient evidence for the Court to conclude that the Worker agreed
to be treated as an independent contractor while working for the appellant. According
to the appellant, the fact that the Worker accepted cheques from the appellant
without statutory payroll deductions demonstrates that he accepted the
appellant’s characterization of their relationship.
[4]
I do not agree with the
appellant’s assertion that the evidence shows that the Worker accepted the independent
contractor status given to him by the appellant. Mr. Wolski testified that he
did not understand what the appellant meant when it declared that he was to be
treated as a self-employed person. He explained that he had always been an employee
in his prior positions. His day-to-day working arrangement with the appellant
was similar to the arrangement in his previous positions. When he was presented
with a written agreement prepared by the appellant, he refused to sign it. This
agreement sought to confirm that the Worker was a contract driver.
[5]
Be that as it may, it
is not a question of whether the Worker accepted or not the appellant’s
description of their relationship. It is well accepted that the parties’
description of their relationship is not in and of itself determinative of the
issue. In TBT Personnel Services Inc. v. Canada, 2011 FCA 256, the
Federal Court of Appeal cautions that the factors outlined in Wiebe Door must
nonetheless be applied to discern the true nature of the parties’ relationship.
Employers cannot avoid their contribution obligations under the EIA and
the CPP simply by informing new workers that they will be treated as
self-employed persons. If, in practice, the arrangement is not consistent with
the existence of an independent contractor relationship, the label used to
describe the relationship will be ignored.
[6]
Applying the Wiebe
Door tests, does the evidence support the appellant’s claim that the Worker
performed his services in the course of a business conducted for his own benefit?
Control
[7]
The Minister assumed
the following with respect to the control factor:
(u) the
appellant called the Worker the day before a scheduled run to let him know what
runs were available and the Worker would either accept or decline the runs;
(v) the
start and end times of the runs were set by the appellant and/or its customers;
(w)
the appellant’s customers decided if the run
would take longer than originally scheduled and the Worker was expected to
comply with their request;
(x)
the appellant determined if the Worker was to
perform supplemental runs between his main run;
(y)
Ken VanGeest and Patrick Wasiack supervised the
Worker;
(z)
the appellant required the Worker to attend
staff meetings;
(aa)
the Worker was required to comply with the appellant’s
rules, regulations and directives;
(bb)
the Worker was required to obtain the appellant’s
approval prior to taking certain actions, such as terminating a customer’s ride
due to behaviour problems;
(cc)
the Worker was required to complete trip log
sheets;
(dd)
the Worker was subject to disciplinary action as
per the following:
(i)
if the Worker did not comply with company
guidelines, he would receive fewer runs; and
(ii)
if the Worker provided false or misleading
information on his job application or during the hiring interview, he could be
discharged;
(ee)
the Worker was not authorized by the appellant
to do cash jobs;
(ff)
the Worker was required to inform the appellant
if he was going to be absent;
(gg)
the Worker was required to wear a suit and tie.
[8]
I found the Worker to
be a credible witness. His testimony confirmed the accuracy of the Minister’s
assumptions of fact with respect to the control factor.
[9]
The appellant’s witness
failed to convince me that the Worker was not subject to the appellant’s
direction and control. This factor points to an employer-employee relationship.
Ownership of Tools and Equipment
[10]
The evidence shows that
the appellant provided the Worker with the vehicles, trip log sheets, GPS,
maps, pens, clipboard, pass key, etc. necessary to perform his duties, and that
it did so at no cost to the Worker. The appellant paid all of the operating
costs of the vehicles and was responsible for their maintenance. This factor
also points to an employer-employee relationship.
Chance of Profit/Risk of Loss
[11]
The Worker was paid $10
per hour when he drove a sedan limousine and $13 an hour when he drove the appellant’s
other vehicles.
[12]
The evidence shows that
clients dealt directly with the appellant. The appellant determined the fare
and paid the Worker his hourly wage. The Worker earned tips, which is common in
the industry. This is insufficient, however to provide real opportunity for
profit. Waiters and waitresses earn tips for good service, yet they remain
employees of the establishments they work for.
[13]
The evidence shows that
the Worker provided his services personally. He did not hire substitutes or
replacements. While the appellant’s witness claimed the Worker could do so,
practically speaking he could not. The appellant’s witnesses acknowledged that
any substitute driver would have had to have been pre-approved by the appellant.
The Worker did not earn enough money to allow him to hire substitute drivers or
helpers.
[14]
The appellant’s
witnesses claimed that the Worker was free to turn down work and that he could
work for others. The Worker denies this. Indeed, the evidence shows that he was
on call seven days a week and that he would lose his priority if he did not
make himself available on an on-call basis. The appellant’s witnesses failed to
convince me that the Worker could arrange his work schedule as he saw fit. The appellant
determined the Worker’s work schedule by assigning him trips. I accept the
Worker’s testimony that, out of concern that he would not be called if he
refused the assignments, he felt obligated to accept the Canadian work
assignments offered to him.
[15]
In light of the
evidence and on the basis of the application of the Wiebe Door tests, I
conclude that the Worker was an employee of the appellant throughout the period
under review.
Signed at Ottawa, Canada, this 16th day of January 2013.
“Robert J. Hogan”
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