Charles a Latimer v. Minister of National Revenue, [1977] CTC 2128, 77 DTC 84

Delmer E Taylor:—This is an appeal from income tax reassessments dated June 18, 1975 for the years 1970 and 1972, and from a separate but related reassessment dated February 24, 1976 for the year 1971. Quoting from paragraph 9 of the Notice of Appeal:

The sole issue in the appeal for each of the three taxation years is whether or not the amounts paid to the Appellant by the Corporation represent income to the Appellant from an office or employment or whether the amounts paid to the Appellant by the Corporation represent income to the Appellant from his independent financial consulting business.

The issue was stated, in paragraphs 8(n) and (o) of the respondent’s Reply to Notice of Appeal to be:

. . . the Appellant was not carrying on business on his own account but was an officer or employee of the Corporation; and

the expenses sought to be deducted by the Appellant as described in paragraphs 4 and 6 above were not incurred for the purpose of gaining or producing income from a business or property of the Appellant.

The appellant in his Notice of Appeal did not make reference to particular sections of the Income Tax Act, but the evidence presented at the hearing established that he relied on the same sections of the Income Tax Act as the respondent, who relied, inter alia, upon subsections 5(1), 139(1) and (2), paragraphs 12(1)(a) and 44(1)(d) of the Income Tax Act, RSC 1952, chapter 148, as it applied to the taxation years 1970 and 1971, and subsections 8(1) and (2), 248(1), paragraphs 18(1)(a), 249(1)(b) and 150(1)(d) of the said Income Tax Act, as amended by SC 1970-71-72, chapter 63 and amendments thereto.

Facts

The appellant is a member of the Ontario Institute of Chartered Accountants, and in or about the month of July 1970 concluded an arrangement with Mr W Edwin Jarmain, President of Jarmain Teleservices Limited (hereinafter called the Corporation), under which Mr Latimer was to provide certain financial management services to the Corporation. No written agreement was entered into between the parties. At that time the appellant lived in the City of Toronto in the Province of Ontario and, from an office in his home, conducted a private consulting practice which he had commenced in September 1969 with particular emphasis on providing such financial management services. The Corporation’s office and chief place of business was in London, Ontario, some 125 miles west of Toronto. The arrangement between the two parties continued, with certain changes in remuneration and duties, until March 31. 1972.

The appellant’s income tax return for the year 1970 reported his business income for the fiscal period September 1, 1969, to August 31, 1970, a period of time all, or almost all, before his “arrangement” with the Corporation. The appellant filed his 1971 income tax return, reporting business income for the period September 1, 1970 to August 31, 1971, and his 1972 return showed business income for the period september 1, 1971 to March 31, 1972, stated in the return to be the date “when terminated”. His 1972 return also includes an amount of $4,216, representing salary or wages for some part of the balance of the calendar year. It is common ground between the appellant and the respondent that the remuneration the appellant received by virtue of his arrangement with the Corporation was the income he reported as his income from business between September 1, 1970 and March 31, 1972.

Contentions

The net effect of the reassessments was: (1) to add to the appellant’s income for the year 1970 the amount of $8,500 classified by the Minister as salary or wages and to transfer that amount from the business income reported by the appellant in his 1971 income tax return; and (2) to disallow as expenses the amounts of $5,910.95 for 1971 and $1,442.79 for 1972 since the reported business income for the years 1971 and 1972 was considered by the Minister to have been salary or wages.

The position of the appellant was that:

any oral agreements were valid:

he was in the position of an independent consultant to the Corporation;

he was not subject to direction and control by the Corporation;

the arrangements between the parties should be characterized as contracts for services, and not as contracts of service.

Counsel for the respondent asserted that:

the Corporation controlled what work the appellant was to do and where and when he was to do it:

the Corporation supplied the appellant with an office, equipment and staff at its premises, and the appellant was not required to provide any of his own staff, supplies or equipment;

the chance of profit and risk of loss with respect to services performed by the appellant was borne exclusively by the Corporation;

the Corporation was responsible exclusively for utilizing and managing the appellant’s services;

the Corporation deducted contributions to the Canada Pension Plan and Unemployment Insurance from the salary paid to the appellant in the taxation years 1971 and 1972;

the appellant devoted all his efforts to performing the services for the Corporation and was prohibited from performing consulting services for other persons without the consent and agreement of the Corporation; the appellant did not perform services for anyone but the Corporation from July 1970 to March 1972;

under the arrangement between the appellant and the Corporation the appellant was to serve the Corporation for an indefinite period; the appellant’s services were not obtained by the Corporation for a specific task of limited or definite duration;

on the Annual Information Return of the Corporation as of 14 December 1973 under the Ontario Business Corporations Act, the appellant was reported as holding the office of treasurer of the Corporation commencing 20 January 1972;

in the London Ontario City Directory of 1971 the appellant was named as comptroller of the Corporation;

the appellant was reimbursed for all expenses incurred in connection with the services he performed for the Corporation by submitting a “service record” of the Corporation outlining the expenses incurred;

the services performed by the appellant under the arrangement were an integral part of the Corporation’s business.

Evidence

Counsel for the appellant called the appellant himself as a witness, and he identified and introduced, as Exhibit A-1, fourteen (14) pages of a document called “Service Record, Jarmain Teleservices Ltd”, covering random dates from October 1970 to January 1972, which, he stated, gave a good indication of the type of work he performed. It was also established that during the year 1971 he had moved from Toronto to London, returning to live in Toronto some time after the end of 1972. The appellant also stated that since 1963 he had held a licence as a public accountant from the Province of Ontario; that he did not carry professional liability insurance; and that it was his “strategy” in business to deal as a financial management consultant with only one client at a time, devoting his efforts to the affairs of that client, and that, accordingly, it was convenient and economical to have his office and service facilities provided at the client’s place of business.

During cross-examination, counsel for the respondent, through this witness, introduced the following exhibits:

R-1—Copy of a letter dated November 11, 1974 from Mr W Edwin Jarmain to Mr J MacDonald:

R-2—Copy of a letter dated March 22, 1976 from Mr W Edwin Jarmain to Price Waterhouse & Co:

R-3—Certificate of Amendment of Articles re: Cablesystems Engineering Limited (formerly Jarmain Teleservices Limited);

R-4—Vernon’s London City Directory 1971-72.

The complete letters identified as R-1 and R-2 are herein reproduced:

Exhibit R-1

CANADIAN CABLESYSTEMS LIMITED

Suite 1110, 120 Adelaide Street West Toronto, Ontario M5H 1T9

416-869-0152

November 11, 1974.

Mr. J. MacDonald,

Revenue Canada, Taxation,

388 Dundas Street,

LONDON, Ontario.

RE: C. A. LATIMER—JARMAIN TELESERVICES LIMITED

Dear Sir:

Mr. Charles Latimer has indicated to me that you have requested confirmation of the verbal arrangement which I, as President of Jarmain Teleservices Limited, entered into with Mr. Latimer in July 1970.

In general terms, Mr. Latimer was retained by me on behalf of Jarmain Teleservices Limited, as a consultant to advise on the provision of financial management services by Jarmain Teleservices Limited to its clients, and under this consulting arrangement, to assist in directing and providing such services through Jarmain Teleservices Limited. In return for these consulting services, Jarmain Teleservices Limited agreed to pay Mr. Latimer a fee of $100 per day. As well, out of pocket expenses incurred by Mr. Latimer attributable to the provision of his services were to be reimbursed by the Company. It was anticipated that, at least initially, the bulk of Mr. Latimer’s available time for consulting services would be required by, and taken up with, our clients (i.e. the clients of Jarmain Teleservices Limited) and, therefore, after concluding the consulting arrangements with which he was involved prior to our arrangement, he was not to offer or extend consulting services to new clients without our consent and agreement.

The consulting arrangement entered into with Mr. Latimer, as discussed above, transpired over a period of time as had been envisaged at the time of entry into the agreement, except that it was noted, after a period of time, that Jarmain Teleservices Limited continued to require all of Mr. Latimer’s available consulting time. In this situation, it was felt to be reasonable to substitute a fixed monthly retainer in place of the fee of $100 per day, effective May 1, 1971. As well, I might add that I, acting on behalf of Jarmain Teleservices Limited, entered into an agreement with Calat Limited, (effective March 1, 1972) similar to the above agreement under which Jarmain Teleservices Limited retained Calat Limited on a consulting basis, in order to obtain the services of Mr. Latimer, an employee of Calat Limited.

If you have any questions in respect to any of the above, please do not hesitate to contact me.

Yours very truly,

(Sgd.) W. Edwin Jarmain WEJ:JF

W. Edwin Jarmain,

Executive Vice-President, Cable Television.

Exhibit Fl-2

CANADIAN CABLESYSTEMS LIMITED

Suite 1110, 120 Adelaide Street West Toronto, Ontario MSH 1T9

416-869-0152

March 22, 1976.

Price Waterhouse & Co.

Suite 1501,

Canada Trust Tower,

275 Dundas Street,

LONDON, Ontario.

N6B 3L1

Attention: Mr. P. W. Bowman

Gentlemen:

In my letter dated November 11, 1974, to the Department of National Revenue, I stated that Mr. Latimer was not to offer or extend consulting services to new clients without my consent and agreement. In reviewing the matter, I now realize that to be more correct I should have said that I did not expect that Mr. Latimer would take on any new clients without advising me. Strictly speaking, he would not have been obliged to do so as we had never discussed that eventuality or had any such agreement. The question is, of Course, academic since the situation never arose but I hope this will Clarify the situation and avoid any misunderstanding.

Yours very truly,

(Sgd.) W. Edwin Jarmain WEJ:JF

W. Edwin Jarmain,

President.

Counsel for the appellant introduced Mr William Edwin Jarmain, President of the Corporation, who gave evidence regarding the general nature of the appellant’s responsibilities. Mr Jarmain stated that he was quite familiar as a businessman with the difference between an employee and an independent contractor and that the appellant had been engaged by him as an independent contractor. The appellant, according to Mr Jarmain, had wide latitude in performing the tasks indicated on the Service Records and other tasks which he (the appellant) viewed as being necessary or valuable to the Corporation in the field of financial management. Under cross-examination he accepted the apparent inconsistency in the two letters (Exhibits R-1 and R-2), but Stated that Exhibit R-2 more appropriately provided his understanding of the situation after he had given the matter serious thought.

Argument

Counsel for the appellant proposed that there was no employeremployee or master-servant relationship in the arrangements; that it was up to the parties themselves to determine the legal relationships and they had deliberately chosen a consulting basis; and that Mr Jarmain treated the appellant in much the same way as he would treat an independent accountant or solicitor. In the words of counsel for the appellant:

The taxpayer had no detailed instructions to follow in the performance of his duties. He himself decided the procedures to be followed. He decided where he should work and he chose to work at the client’s office. While these procedures are somewhat unusual, he has given, sir, a rational explanation of it. It was, if I can quote him from memory, it was part of his billing strategy to keep costs down. I invite you to find him, sir, to be an independent contractor.

Mr Chairman, there are many cases that I could cite to you today, but I submit, Mr Chairman, on the authorities, that the critical test of whether someone is an employee or an independent contractor is the factor of superintendence of control. You have heard the evidence before you today that there was remarkably little control over Mr Latimer as to the way in which he did his work. He has explained the reasons for the way he acted, using his own office instead of someone else’s office and I submit these reasons are plausible.

Earlier cases presented and quoted by counsel in support of the appellant’s position included:

Guérin v MNR (1952), 6 Tax ABC 77, 52 DTC 118;

Sim v MNR, [1966] CTC 383, 66 DTC 5276;

Alexander v MNR, [1969] CTC 715, 70 DTC 6006;

Performing Right Society, Limited v Mitchell and Booker (Palais de Danse), Limited, [1924] 1 KB 762;

Canadian Performing Right Society Ltd v Canadian National Exhibition Association, [1938] OR 476:

McDonald et al v Associated Fuels Ltd et al, [1954] 3 DLR 775;

MacKeen v MNR, [1967] Tax ABC 374, 67 DTC 281 ;

Compton v MNR, (1965), 39 Tax ABC 139, 65 DTC 578.

Counsel for the respondent at the commencement of his argument brought the matter down to a question of control, and I quote:

Mr Chairman, I will try to be as brief as possible and certainly, I don’t wish to repeat what my friend has stated that I agree with. I certainly agree with his statement as to the issue in this matter. There is no question there. I also agree with his references to the various provisions in the Income Tax Act.

To summarize this, I think it comes down to the question as to whether or not a master/servant relationship exists in this situation. This is not defined in the Income Tax Act. However, we have to go to the case law as my friend, I believe, has suggested.

Now, under a contract of service, a master/servant relationship exists; under a contract for services, it does not, and my initial point is that notwithstanding what the parties intend and notwithstanding, (and I will freely admit this), what is specifically written in the Vernon’s Telephone Directory, the Court has to look at all the factors and conclude on the basis of those factors what is the true substance and not the form of the relationship.

However, later on he broadened out the basis of his position as follows:

Now, my friend has spent considerable time in emphasizing control, what control does the master have over the servant and I will fully admit that control is a factor to be considered, but I would not admit in today’s advanced society that it is the factor or the primary factor to consider.

In support of this position he quoted from Montreal v Montreal Locomotive Works [1947] 1 DLR 161, where Lord Wright pointed out as follows at page 169:

. . . It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive.

And furthermore counsel made reference to the fact that, in decisions of recent cases before the Pension Appeals Board, a test was applied dealing with the degree of integration of the work performed and the dependence upon it by the business establishment in order to determine if the relationship was one involving an employee or an independent contractor. Counsel pointed out, and made reference to, the following cases:

In the matter of the Unemployment Insurance Act, Irving Edward Orton v The Minister of National Revenue (not reported—April 25, 1974);

Ready Mixed Concrete v Minister of Pensions, [1968] 1 All ER 433;

Thomas G Quance v Her Majesty the Queen, [1974] CTC 225, 74 DTC 6210;

Montreal v Montreal Locomotive Works Ltd et al, [1947] 1 DLR 161;

Market Investigations, Ltd v Minister of Social Security, [1968] 3 All ER 732;

Dr William H Alexander v MNR, [1969] CTC 715, 70 DTC 6006;

Donald B MacDonald v MNR, [1974] CTC 2204, 74 DTC 1161;

Comet Realties Ltd v MNR, Canadian Employment Benefits & Pension Guide, 1972 CCH Canadian Limited, page 6062;

Mann and Martel v MNR, Pension Appeals Board Decisions, 1972 CCH Canadian Limited, page 5958;

No 541 v MNR, (1958), 20 Tax ABC 14, 58 DTC 450.

Findings

The appellant’s relationship with the Corporation is at best ill-defined. In fact there is no evidence showing the parameters, objectives, time frame or any other important aspects which one should seek to establish in a specific contractual arrangement to perform a certain task. The absence of these is not necessarily totally destructive to the appellant’s case, but it is at least damaging. There is only general information on the remuneration received by the appellant, which was apparently agreed upon orally to be on a daily rate at the start of the engagement, but which changed to a monthly rate later on. The “Service Records” (Exhibit A-1) are not reproduced in this decision because an examination of them indicates that the tasks involved are ones which could be performed by either a consultant or an employee with equal ease. For example, there are listed such matters as:

Systems and computer installation analysis;

Analysis of 1970 results to date and budget comparison;

Attendance at annual meeting of shareholders and directors, discussions, etc;

Corporate pension coverage;

Review of legislation and taxation of loans to affiliates;

Correspondence with CRTC and Corporate Secretary re change of shareholdings;

Meetings and discussions with various individuals in Kingston re participation in CATV licence application.

The fact that the appellant performed these tasks without specific and direct supervision should only be regarded as recognition of his professional qualifications in his own field. The Board, however, does point out that it would be highly unusual to have such tasks performed by either an employee or a consultant without some form of direction or determination on the part of the senior management. Further, the view of Mr Jarmain that the arrangement was one with an independent contractor is helpful to the Board in understanding how the parties themselves might have seen it, but it is not determinant of that relationship as it might affect the liability of the appellant for income tax. To be determinant, such an opinion should be supported by factual evidence that this was indeed the situation. The Board finds, in the evidence available, very little to distinguish the appellant’s role and function from that which would be expected of an employee. At the same time the Board is prepared to agree that counsel for the appellant has diligently and effectively demonstrated certain areas in which the appellant’s role was not that of an employee as one might understand the term in common usage. These variances, however, only serve to demonstrate the validity of the comment made at page 725 of [1969] CTC [6011 of 70 DTC] by Jackett, P, then President of the Exchequer Court of Canada, in Dr William H Alexander v MNR (supra), a case not dissimilar to the one before the Board:

Here I am faced with a contract that can be analysed either as a contract of service with deviations from the normal, or a contract for services with deviations from the normal. I must, therefore, seek some basis for a conclusion as to what is the correct character to assign to it.

Attempting to find that basis to which the learned judge referred, the Board turns to the points raised by counsel for the respondent. The Board has not reproduced Exhibits R-3 and R-4, since the contents, although more supportive of the respondent’s case than that of the appellant, were nevertheless of very limited value. The Board has read with considerable interest the two Pension Appeals Board cases, Comet Realties Ltd and Mann and Martel (supra), which dealt more specifically with entitlement under applicable pension legislation; but it has been unable to conclude that such a test as to whether the appellant’s function was “part and parcel of the operation’’ (Comet Realties Ltd) or ‘‘an integral part of the appellant’s business’’ (Mann and Martel) has much application in the instant case when they are contrasted with “a severable accessory’’. It is doubtful if the learned judge intended that this test should supersede anything which might be established to exist from an examination of the criteria covering a more direct master/ servant relationship.

Turning to the criteria, other than “control’’, enumerated by the learned judges of the Privy Council in the appeal of Montreal v Montreal Locomotive Works Ltd (supra), it should be recognized that although they may have more application in a commercial or industrial situation, to the degree the appellant’s professional skills could be regarded as “tools”, he was in possession of these; according to the evidence of both the appellant and Mr Jarmain, there appeared to be a need to ffill a full-time position in the role commenced in 1970 by the appellant, and if one accepts that the prospect of a full-time position at a good salary made the arrangement look profitable to the appellant, then there was “a chance of profit”; turning to the “risk of loss” factor, the Board could conclude without difficulty that there was indeed some “risk of loss”, the appellant having terminated any other engagements he had, ceased to pursue any other prospects and, shortly thereafter, moved with his family to London from Toronto. Indeed, had the circumstances turned out to be less than acceptable, there was a serious risk of loss. Without trying to examine in depth the meaning to be attributed to these particular criteria given by Lord Wright, the Board could not find justification within these criteria alone for ruling against the appellant’s case. In my opinion the case does come down to the issue—common and prominent in the argument of both counsel—of control, or the master/servant relationship. For this the Board has two items of physical evidence:—Exhibits R-1 and R-2. Counsel for the appellant would have the Board accept the view that the appellant, and even more particularly Mr Jarmain, were knowledgeable men, competent in dealing with both employees and consultants and cognizant of the fundamental differences between the two roles in a business relationship. Therefore, according to counsel, since they deliberately determined that the appellant’s relationship should be that of an independent contractor acting as a consultant, their judgment should be significant to the Board. Significant it is, but, as stated earlier, not finally determinant.

The Board was impressed by Mr Jarmain, both in his attendance as a witness and in the direct and informative manner in which he answered questions. There is no doubt that he is a capable man, familiar with business affairs. The Board finds it highly improbable that Mr Jarmain would sign a letter stating anything other than that which he believed to be the case. In the view of the Board, the letter of November 11, 1974 (Exhibit R-1), contains at least two significant comments. First, “As well, out of pocket expenses incurred by Mr Latimer attributable to the provision of his services were to be reimbursed by the Company”. There was no light shed at the hearing on what were to be defined as “out of pocket expenses”, but it was evident that the appellant did receive certain reimbursements from the Corporation. Clearly he did not receive reimbursement for everything that he regarded as being an expenditure applicable to his business, or there would have been nothing further for him to claim and no purpose for this hearing. It must be remembered that the appellant’s business during the period under review according to his own statements consisted of only one client—the Corporation. The second comment is “. . . after concluding the consulting arrangements with which he was involved prior to our arrangement, he was not to offer or extend consulting services to new clients without our consent and agreement.” Taken in the narrow framework which counsel for the respondent suggested, that can be construed to mean that the appellant’s general business affairs were to be terminated and that his duties and activities were to be determined and controlled from that point on by Mr Jarmain. There is another more generous view of the sentence that could be taken if that entire phrase is read: “It was anticipated that . . . he was not to offer or extend consulting services to new clients without our consent or agreement.” The general explanation provided by Mr Jarmain in the second letter of March 22, 1976 (Exhibit R-2) is: “I did not expect that Mr Latimer would take on any new clients without advising me.” It is this explanation, provided in this letter, that counsel for the respondent would have the Board refuse. However, the Board attaches great significance to the fact that Mr Jarmain felt called upon to write the second letter, and therefore everything contained therein should be closely examined. An opinion that Mr Jarmain had restricted the appellant’s latitude to take on new clients would be perfectly reasonable and acceptable if viewed in the light of the circumstances at the start of the arrangement, Mr Latimer being an unknown quantity to Mr Jarmain, and the scope, nature and duration of the work being uncertain, as well as there being a distinct possibility, eve : probability, of the position requiring full-time attention from the appellant—if not at the start, then later on—and, in the interim, of the position requiring all Latimer’s available time. It would be understandable that Mr Jarmain, as a businessman experienced in dealing with outside consultants, would have tried to guard against the eventuality that the appellant might find himself too involved with other clients to fulfill any increasing responsibilities with the Corporation, and that he (Mr Jarmain) would have tried to obtain a commitment from Mr Latimer to limit his business until the situation at the Corporation had been clarified sufficiently for Mr Jarmain to determine the extent of the need for more or all of his services rather than just “his available time”. I repeat that in my opinion this situation would have added considerable weight to the view that, at least at the start of the arrangement, the appellant was acting as a consultant and might have retained, in the absence of such an agreement with Mr Jarmain, the usual rights of independent action.

However, when we turn to the second letter, we face a problem—and specific reference is made to the sentence: “Strictly speaking, he would not have been obliged to do so as we had never discussed that eventuality or had any such agreement’’ (italics are mine). The Board must accept that statements for precisely what it purports to be, namely, an assertion that the matter of the appellant’s seeking or accepting new clients had not come up for discussion. As stated earlier, the Board attached considerable importance to the fact that Mr Jarmain wrote the second letter. I might be persuaded to believe that he had been somewhat unclear in the first letter, but I cannot be persuaded that some 16 months later, in a direct attempt to clarify the situation, he would have been at all uncertain. Therefore, accepting as a fact that the matter of the continuation or extension of the appellant’s business with other clients had not come up in their discussions, under what set of rules would an experienced businessman like Mr Jarmain expect an independent contractor not to take on any new clients without advising him? This very expectation is more illustrative of the actual relationship between the two parties as viewed by Mr Jarmain, that of employeremployee, than the general description of that relationship, a contractual one, expressed in the letter of November 11, 1974.

The Board’s review of earlier jurisprudence shows that in many instances there is a lack of written documentation showing a “master/ servant’’ relationship, that available documentation often is vague, and at least in some instances specifically denies that there is such a relationship. Nevertheless, it is with reference to the facts, the context of the matter and the actions separately, of the parties involved that the courts have determined, in each case, the nature of the relationship which actually did exist, whether that of master and servant, or that of an independent contractor. It might be considered that “control’’ need not always be a physical or even a visible thing. Indeed it may be, to some degree, a matter of mental designation and acceptance of a state of affairs by both parties. The Board is quite satisfied that Mr Jarmain described the relationship as he believed he understood it, but at the same time the Board is just as satisfied that he had functionally assigned to the appellant the role of an employee.

It would be questionable to leave the matter there, without viewing those actions of the appellant which might tend to confirm or deny the role assigned to him by Mr Jarmain. In doing so, the Board notes first the contention of the appellant that it was his “strategy’’ to have only one client at a time. While not impossible to feature as a business, this could be indeed most unusual for an independent contractor. The risk inherent in such a situation is obvious: a business (one client) one day, no business (no client) the next. More importantly there is little outward indication such as a business office, business telephone, signs, professional notices, business contracts, etc, to show that while in Toronto the appellant was actively engaged in expanding his business even within these self-imposed constraints; and there is no evidence that after his move to London he did anything to let it be known that he was in the business of financial consulting. The appellant engaged himself full time in the interests of the Corporation and, except for retaining his professional qualifications and licences, he did not pursue a role that gave any indication that his services were available in any way to the public at large, nor did he give any indication he was prepared to do so, or that he was reluctant to restrict himself to one client. The lack of any and all normally accepted criteria of business operations would tend to confirm that he had accepted the role functionally assigned to him by Mr Jarmain on behalf of the Corporation.

In summary, the Board points out that the responsibility of the appellant at this hearing was greater than just to show that some aspects of his arrangement with the Corporation were different than those generally established and understood as portraying “employment”. He had the further and substantial responsibility to persuade the Board that he had been engaged in a recognizable individual business endeavour, and that he had maintained himself, for the entire period under review, in a role distinguishable from regular employment. This he has failed to do.

Decision

The appellant, Charles A Latimer, has not supported his contention that the arrangement he had with Jarmain Teleservices Limited during the years 1970, 1971 and 1972 was one which would permit him to be Classified as an independent contractor providing consulting services. Rather, the evidence substantially supports the conclusion that the relationship was one of an employee with an employer. The appeal is dismissed.

Appeal dismissed.