[1] The issue in these applications for judicial review is whether the Tax Court erred in concluding that Randall Bruce Laycock was an employee of BCH Inc. during the period June 18, 2000 to January 11, 2001. BCH is a transportation company and Mr. Laycock drove a truck and trailer owned by BCH.

[2] The Tax Court Judge dismissed BCH's appeals, heard on common evidence, from the rulings of the Minister of National Revenue that Mr. Laycock was an employee, and not an independent contractor, and thus was employed in insurable and pensionable employment for the purposes of the employment insurance legislation and the Canada Pension Plan respectively: BCH Inc. v. Canada (Minister of National Revenue - M.N.R.), [2002] T.C.J. No. 589.

[3] Despite the able argument of counsel, we are not persuaded that the Judge committed any reviewable error in concluding that Mr. Laycock was an employee during the period in question. These reasons apply to both applications and a copy will be inserted in each file.

[4] Counsel for BCH advanced three arguments to support her position that the applications for judicial review should be allowed.

[5] First, she suggested that the Judge erred in law when he selected the "one-in-four test" in Wiebe Door Services Ltd. v. Minister of National Revenue, 87 DTC 5025 (FCA) as the legal test for determining whether Mr. Laycock was an employee or an independent contractor. We do not agree. While the factors identified in Wiebe Door may have been reformulated from time to time, and may not necessarily be exhaustive in every case, the tests are sufficiently flexible to enable a court to consider a relationship in its entirety. The approach taken in Wiebe Door was recently approved by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983.

[6] Second, counsel submitted that the Judge erred in his application of the law to the facts of the case. This Court may only intervene if it is satisfied that, absent some discrete error of law, the Judge's application of the correct law to the facts was unreasonable. In our view, when the record is considered as a whole, there was a more than adequate factual basis to support the Judge's conclusion. That some of the facts considered by the Judge may have favoured BCH's characterization of the relationship is not sufficient to warrant our intervention on an application for judicial review. Nor was the Judge obliged to mention in his reasons every fact and item of evidence, nor to canvass each of the submissions made on behalf of BCH.

[7] Third, counsel suggested that the Judge erred by referring early in his reasons to the facts contained in the Minister's pleading as outlining the arrangements between Mr. Laycock and BCH. In our view, the Judge was merely relying on these facts by way of background. He did not use them as a substitute for the facts that he found established on the evidence adduced before him. In any event, in so far as there may have been some discrepancies between the facts as stated in the pleading and those proved by the evidence, they were minor in nature and not material to the decision.

[8] For these reasons, the applications for judicial review will be dismissed with costs.

"John M. Evans"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-657-02

STYLE OF CAUSE: BCH INC.

Applicant

and

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: SEPTEMBER 29, 2003

REASONS FOR JUDGMENT

OF THE COURT: LINDEN J.A.

EVANS J.A.

MALONE J.A.

DELIVERED FROM THE BENCH

ON SEPTEMBER 29, 2003 BY: EVANS J.A.

DATED: SEPTEMBER 29, 2003

APPEARANCES: Ms. Louise Summerhill

Ms. Kay Leung

FOR THE APPLICANT

Mr. Franco Calabrese

FOR THE RESPONDENT

SOLICITORS OF RECORD: Aird & Berlis LLP

Barristers & Solicitors

Toronto, Ontario

FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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BCH Inc. v. The Queen, 2003 FCA 353

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2003 FCA 353