Docket: 2009-2010(EI)
2009-2162(CPP)
BETWEEN:
JAMES NIELSEN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent
and
R.S.A. INSTALLATIONS LTD.,
Intervenor.
____________________________________________________________________
Appeal
heard on January 15, 2010, at Winnipeg, Manitoba
Before: The Honourable
Justice Valerie Miller
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Penny Piper
|
|
Agent for the
Intervenor:
|
Randal Semeniuk
|
____________________________________________________________________
JUDGMENT
The appeals from
the decisions made under the Employment Insurance Act and the Canada
Pension Plan for the period from January 1, 2005 to February 28, 2007 are
allowed on the basis that the Appellant was employed as an independent
contractor, and the decisions are vacated.
Signed at Ottawa, Canada,
this 5th day of February
2010.
“V.A. Miller”
Citation:2010TCC77
Date: 20100205
Docket: 2009-2010(EI)
2009-2162(CPP)
BETWEEN:
JAMES NIELSEN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
R.S.A. INSTALLATIONS LTD.
Intervenor.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
The Appellant appeals
from a decision made by the Minister of National Revenue (the “Minister”) that
he was employed in insurable and pensionable employment with R.S.A.
Installations Ltd. (the “Payor”) during the period January 1, 2005 to February
28, 2007.
[2]
These appeals were
heard on common evidence. The only issue is whether the Appellant was employed
as an employee or an independent contractor.
[3]
At the hearing,
evidence was given by the Appellant and Randal Semeniuk, President of the
Payor. Both witnesses maintained that they intended the Appellant to be
employed as an independent contractor.
[4]
The Appellant stated
that he works as a subcontractor in the construction industry in Winnipeg and surrounding area. He installs windows, doors and
siding. He is currently installing windows as a subcontractor with Winmore
Windows.
[5]
It was the Appellant’s
evidence that, during the relevant period, he worked with other individuals as
well as the Payor. When he worked with the Payor, he was hired to do a specific
job. He stated that he negotiated the amount that he was paid by the Payor. If
the job took between 1 ½ to 2 days, then he normally billed the Payor for $18/
hr. However there were occasions when the project was very small and the Payor
was not able to pay the Appellant $18/hr. In these instances, the Appellant
sometimes refused the offer to work for the Payor.
[6]
The Appellant invoiced
the Payor on a weekly basis for each job that he performed. He usually gave the
Payor his invoice on a Friday. The Appellant received his wages on a weekly
basis. He was not paid for rain days. He was only paid by the Payor when he worked.
He did not receive vacation or sick days from the Payor.
[7]
The Appellant stated
that he determined his own hours of work. He usually worked more than 40 hours
a week and he kept track of his own hours.
[8]
Both the Appellant and
Mr. Semeniuk stated that the Appellant was not supervised in his work. It was
Mr. Semeniuk’s evidence that he only inspected the Appellant’s work when there
was a complaint. If the Appellant made an error in his work, it was his
responsibility to fix the error on his own time and at his own expense. It was
the Appellant’s evidence that there were occasions when he incurred a monetary
loss as a result of an error that he made.
[9]
The Appellant used his
own tools and truck in the performance of his work. His tools consisted of an
air compressor, a nailer, chop saw, drill, various saws, hammers and ladders.
The Payor supplied the caulking and the items that had to be installed.
[10]
In 671122 Ontario
Ltd. v. Sagaz Industries Canada Inc.[1],
Major J. described the analysis that should be used when determining whether an
individual is an employee or an independent contractor. He wrote:
47 Although
there is no universal test to determine whether a person is an employee or an
independent contractor, I agree with MacGuigan J.A. that a persuasive approach
to the issue is that taken by Cooke J. in Market Investigations, supra .
The central question is whether the person who has been engaged to perform the
services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the
worker's activities will always be a factor. However, other factors to consider
include whether the worker provides his or her own equipment, whether the
worker hires his or her own helpers, the degree of financial risk taken by the
worker, the degree of responsibility for investment and management held by the
worker, and the worker's opportunity for profit in the performance of his or
her tasks.
48 It bears
repeating that the above factors constitute a non-exhaustive list, and there is
no set formula as to their application. The relative weight of each will depend
on the particular facts and circumstances of the case.
[11]
Applying the test to the facts in
this appeal, it is my opinion that the Appellant was an independent contractor
when he worked with the Payor.
[12]
After a review of the evidence, I
have concluded that the Payor did not supervise the manner in which the
Appellant performed his duties. The Appellant determined his own hours of work;
he was responsible for fixing any problem that he may have caused. He had a
risk of loss. He owned all of the tools that he used to perform his duties.
[13]
The terms of the relationship
between the Appellant and the Payor support their intention that the Appellant
was to be employed as an independent contractor.
[14]
The appeals are allowed.
Signed at Ottawa, Canada, this 5th day of February 2010.
“V.A. Miller”
CITATION: 2010TCC77
COURT FILE NO.: 2009-2010(EI)
2009-2162(CPP)
STYLE OF CAUSE: JAMES NIELSEN AND
THE
MINISTER OF NATIONAL REVENUE AND
R.S.A. INSTALLATIONS LTD.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 15, 2010
REASONS FOR JUDGMENT BY: The
Honourable Justice Valerie Miller
DATE OF JUDGMENT: February 5, 2010
APPEARANCES:
|
For the
Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Penny Piper
|
|
Agent for the
Intervenor:
|
Randall Semeniuk
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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