Kempo
J.T.C.C.:-These
informal
procedure
appeals
concern
Mr.
Korpan’s
1991
and
1992
taxation
years.
Mr.
Korpan’s
principal
source
of
income
was
as
a
school
principal
employee
of
the
Edmonton
Catholic
School
District.
The
key
issue
at
trial
turned
on
whether
the
income
he
derived
from
the
duties
he
performed
as
a
pitboss
for
Edmonton
Northlands
Casino
and
for
Sunalta
Bingo
Ltd.
was
business
income
or
employment
income.
Mr.
Korpan
maintained
it
was
business
income
and
that,
given
the
total
income
received
from
this
source
and
the
activity
he
carried
on
out
of
his
in-home
office
respecting
that
source,
he
was
free
of
the
limitations
imposed
by
subsection
18(12)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
’’Act”).
Mr.
Korpan
testified
on
his
own
behalf.
He
stated
that:
—
the
pitboss
activity
was
a
sideline
activity;
-
he
worked
a
shift
whenever
he
telephoned
in
to
say
he
was
available
to
do
so;
—
he
was
subject
to
the
Alberta
Gaming
Commission’s
terms
and
conditions
manual
(Exhibit
R-3)
respecting
his
pitboss
duties
with
the
casino;
—
he
was
licensed
in
accordance
with
these
requirements
which
was
a
minimal
cost
borne
by
him;
-
his
shift
hours
were
fixed
and
his
remuneration
was
tied
to
and
based
on
a
shift;
—
he
was
supervised
by
a
pit
supervisor;
—
he
could
work
at
any
casino
of
his
choosing;
-
and
that
his
in-home
office
was
used
for
accounting
matters,
telephone,
and
booking
opportunities.
The
answer
to
the
issue
in
these
appeals
may
be
resolved
by
applying
to
the
facts
of
this
case
a
general
overarching
four-fold
test
which
involves
consideration
of
the
whole
of
the
various
elements
constituting
the
relationship
between
the
parties.
In
this
respect
I
agree
with
Mr.
Korpan
that
the
decision
taken
unilaterally
by
the
casino
operators
(which
was
told
to
him
to
be
for
their
own
internal
accounting
purposes)
to
pay
his
remuneration
net
of
tax,
Unemployment
Insurance
and
Canada
Pension
Plan
withholdings
ought
not
in
itself
to
be
the
deciding
factor
respecting
his
relationship
with
them.
I
refer
to
and
rely
upon
the
decision
of
Wiebe
Door
Services
Ltd.
v.
M.N.R.,
[1986]
2
C.T.C.
200,
87
D.T.C.
5025
(F.C.A.),
which
is
the
seminal
authority
regarding
the
appropriate
approach
to
be
taken.
With
respect
to
control,
on
reviewing
the
very
detailed
and
specific
terms
and
conditions
as
is
shown
in
the
manual
(Exhibit
R-
3)
respecting
Mr.
Korpan’s
duties,
he
was
indeed
under
casino
control
as
to
what
these
duties
were,
when
and
how
they
were
to
be
performed;
they
were
precisely
regulated
and
literally
left
no
room
for
any
meaningful
or
substantive
innovation
on
his
part.
This
aspect
points
in
favour
of
an
employee
relationship.
As
to
the
ownership
of
any
tools
necessary
to
perform
the
duties,
all
that
was
required
in
its
broadest
sense
was
that
Mr.
Korpan
be
attired
in
an
appropriate
suit,
shirt
and
tie
plus
a
designated
identity
badge
which
bore
his
name,
photo
and
an
employee
identity
number.
That
he
drove
his
vehicle
to
the
casino
to
perform
his
duties
does
not
make
the
vehicle
a
tool
or
equipment
in
the
performance
of
his
duties.
Overall,
this
aspect
of
the
relationship
points
in
neither
direction
and
is
neutral
in
my
opinion.
With
respect
to
the
chance
of
profit
and
risk
of
loss,
Mr.
Korpan
was
paid
according
to
his
shift
time.
He
had
no
flexibility
to
earn
more
by
working
faster,
or
for
longer
or
shorter
times,
within
his
shift
period.
He
could
not
provide
a
replacement
worker
in
his
place.
Indeed,
once
he
showed
up
for
a
shift
there
was
no
risk
of
any
financial
loss
at
all
and
no
opportunity
to
profit
above
and
beyond
his
fixed
remuneration
per
shift.
This
aspect
favours
an
employee
relationship.
Conclusion
The
combined
force
of
the
whole
scheme
in
my
view
establishes
that
the
income
earned
from
Mr.
Korpan’s
pitboss
activities
was
in
the
nature
of
income
derived
from
employment
qua
employee
and
not
from
a
sideline
business
qua
independent
contractor.
The
appeals
are
to
be
dismissed.
Appeals
dismissed.
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