Dockets: 2008-3139(EI)
2008-3140(CPP)
BETWEEN:
ANDREW WYSEMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LAURA RUIZ-WYSEMAN,
Intervenor.
____________________________________________________________________
Appeal heard on October 7, 2009 at London, Ontario
By: The Honourable
Justice Judith Woods
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Julian Malone
|
|
Agent for the
Intervenor:
|
Andrew Wyseman
|
____________________________________________________________________
JUDGMENT
The
appeal with respect to a decision of the Minister of National Revenue under the
Employment Insurance Act that Laura Ruiz-Wyseman was not engaged in
insurable employment with the appellant for the period from January 1, 2004 to
December 7, 2007 is dismissed, and the decision is confirmed.
The
appeal with respect to a decision of the Minister of National Revenue under the
Canada Pension Plan that Laura Ruiz-Wyseman was engaged in pensionable
employment with the appellant for the period from January 1, 2004 to December
7, 2007 is allowed, and the decision is vacated.
Each
party shall bear their own costs.
Signed at Ottawa, Canada this 14th of October 2009.
“J. M. Woods”
Citation: 2009 TCC 512
Date: 20091014
Dockets: 2008-3139(EI)
2008-3140(CPP)
BETWEEN:
ANDREW WYSEMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LAURA RUIZ-WYSEMAN,
Intervenor.
REASONS FOR JUDGMENT
Woods J.
[1] This is an appeal in respect of decisions made by the
Minister of National Revenue under the Employment Insurance Act and the Canada
Pension Plan for the period from January 1, 2004 to December 7, 2007.
[2] At the beginning of the hearing, the appellant
withdrew the appeal with respect to the decision under Employment Insurance
Act, with the intervenor’s consent. It is not necessary, then, that I
consider this matter further. This part of the appeal will be dismissed and the
decision of the Minister will be confirmed.
[3] The remaining issue concerns a determination made
under the Canada Pension Plan that Laura Ruiz-Wyseman, the appellant’s
spouse, was engaged in pensionable employment.
[4] Mr. Wyseman operates a financial planning business as
a sole proprietor. Mrs. Wyseman was engaged to provide certain specified administrative
services in connection with the business in the relevant period.
[5] The question to be determined is whether Mrs. Wyseman
was engaged as an employee or an independent contractor. Mr. and Mrs. Wyseman
maintain that she was an independent contractor. The respondent submits that
the relationship was one of employment.
[6] The essential question is whether Mrs. Wyseman was
engaged in business on her own.
[7] In prior judicial decisions, courts have recognized
several factors as being relevant to this determination. Included in these are
the tests of control, tools, profit and loss, integration, and the intention of
the parties.
[8] As for the factor of intention, it is relevant in this
case to consider a written agreement that the parties implemented to document
the arrangement. It does not state that Mrs. Wyseman is intended to be an
independent contractor, but the terms of the agreement corroborate the
Wysemans’ testimony that this was their intent. Overall, the evidence is
relatively clear that the intent was that Mrs. Wyseman be an independent
contractor and not an employee.
[9] That is not the end of the matter, however. The
question remains whether the facts are consistent with this intention: Royal
Winnipeg Ballet v. MNR,
2006 FCA 87, 2006 DTC 6323, para. 64. It is necessary, therefore, to consider
the other factors listed above.
[10] Based on the evidence presented, I am satisfied that
the facts are, on balance, consistent with an independent contractor relationship.
[11] A significant factor is that Mrs. Wyseman had complete
freedom to determine when to perform the administrative duties. The tasks given
had deadlines assigned, but the work could be done at any time provided that
the deadlines were met. The work was part time and a sideline for Mrs. Wyseman.
She had regular employment elsewhere.
[12] A second factor is that Mrs. Wyseman’s duties were
limited. Her duties were task specific – filing once a month, preparing forms
for clients to sign, and arranging client events. Further, Mrs. Wyseman
generally worked from home and accordingly she was not available at Mr.
Wyseman’s office to handle a number of general tasks that administrative
assistants traditionally take care of, such as answering phones and handling
general correspondence.
[13] Another factor is that Mrs. Wyseman was paid a fixed
annual amount, which would not vary depending on the time that it took to
complete the tasks.
[14] In my opinion, the evidence presented was sufficient
to establish on a balance of probabilities that Mrs. Wyseman was engaged as an
independent contractor.
[15] Before concluding, I would briefly mention that a
number of the assumptions made by the Minister in making his decision were
demolished at the hearing. In particular, I would mention the following:
10(g) The Worker could not refuse work from
the Appellant. Based on the written contract, I would conclude that Mrs.
Wyseman could refuse work if it was outside the tasks listed in the agreement.
10(j) The appellant made office space
available to the Worker to perform her duties. The office space regularly
used was in the home. Mrs. Wyseman did not have separate office space
specifically for her use at her husband’s place of business.
10(m) The Worker was required to report to the
Appellant when documents were to be picked up or dropped off. Based on the limited
evidence presented, I have concluded that Mrs. Wyseman did not report to her
husband when work was completed. She did provide the completed work to her
husband, however.
10(n) The Worker was required to obtain
approval from the Appellant prior to taking certain actions. There
was very little evidence presented that would suggest that Mr. Wyseman’s
approval was routinely required to perform the tasks assigned.
10(o) The Worker received written instructions
from the Appellant on how to complete the forms and documents. Based on the
evidence, the instructions provided to Mrs. Wyseman were quite limited.
10(x) The Appellant provided all the required
supplies, materials, computer, phone, fax machine, scanner and photocopier, at
no cost to the Worker. I am satisfied that the equipment and supplies used
by Mrs. Wyseman were paid for using the Wysemans’ joint bank account.
10(cc) The rate of pay was based on the number
of hours required to complete the work. Although the estimated time to
complete the work was used to determine the annual contract fee, the pay was
not directly based on hours.
10(ii) The Worker was hired for an indefinite
period of time. The written agreement provides for an annual engagement
which can be renewed.
[16] For the reasons above, the appeal with respect to the
decision of the Minister of National Revenue made under the Canada Pension
Plan will be allowed, and the decision that Mrs. Wyseman was engaged in
pensionable employment will be vacated.
[17] Each
party shall bear their own costs.
Signed at Ottawa, Canada this 14th
October 2009.
“J. M. Woods”
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