Docket: 2008-1021(EI)
BETWEEN:
VAN DE'S ACCESSIBLE TRANSIT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal
heard on May 27, 2009, at Regina,
Saskatchewan
Before: The Honourable
Justice D.W. Beaubier
Appearances:
|
Agent for the Appellant:
|
Delmo
Van de Kamp
|
|
Student at Law:
Counsel for the
Respondent:
|
Roxanne Gagné
Lyle Bouvier
|
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister
of National Revenue is confirmed.
Signed at Edmonton, Alberta, this 3rd
day of June 2009.
“D.W. Beaubier”
Citation: 2009TCC297
Date: 20090603
Docket: 2008-1021(EI)
2008-1023(CPP)
BETWEEN:
VAN DE'S ACCESSIBLE TRANSIT INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, D.J.
[1]
These appeals were
heard together on common evidence at Regina, Saskatchewan
on May 27, 2009. Mr. Delmo Van de Kamp testified for the Appellant. The
Respondent called Thomas Abrook, the alleged employee.
[2]
The particulars in
dispute are set out in both Replies to the Notices of Appeal. The assumptions in
each are identical. Paragraphs 4, 5 and 6 of the Reply in appeal 2008-1021(EI)
read:
4. In response to the appeal, the minister decided that the Worker
was employed under a contract of service with the Appellant for the period
January 1, 2006 to June 10, 2006.
5. In so deciding as the Minister did with respect to the Worker,
the Minister relied on the following assumptions of fact:
(a) the Appellant was in the transportation business;
(b) the Appellant held a business license with the City of Regina;
(c) the Appellant held an operating certificate from the province;
(d) the Appellant owned vehicles which were equipped for handicap
transport (hereinafter “the Client”);
(e) the Worker was hired as driver and his duties included
transporting people;
(f) the worker did not enter into written contract or
lease agreement with the Appellant;
(g) the Worker earned a set commission of 45% of the fares;
(h) the Appellant determined the amounts charged to the Client;
(i) the Appellant determined the Worker’s wage rate;
(j) the Worker did not invoice the Appellant;
(k) the Appellant determined the days and shifts the
Worker worked;
(l) the Appellant exercised control over the Worker;
(m) the Appellant provided the Worker with direction
and instruction;
(n) the Appellant set the Worker’s deadlines and
priorities;
(o) the Worker reported to the Appellant every
morning;
(p) all trips were booked through the Appellant;
(q) the Worker provided the Appellant with daily trip
sheets and charge slips;
(r) the Worker could not hire his own helpers or
replace himself;
(s) the Appellant provided all of the tools and
equipment required including the vehicle;
(t) the vehicle license plate was in the Appellant’s
name;
(u) the Worker did not lease the vehicle from the
Appellant;
(v) the Appellant paid for the vehicle operating expenses
including fuel, insurance, repairs, maintenance and washes;
(w) the Worker did not incur any expenses in the
performance of his duties;
(x) the Worker did not have a chance of profit or
risk of loss;
(y) the Worker’s intent, while working for the Appellant,
was employment;
(z) the Worker did not declare business income on his
2006 income tax return, and
(aa) the Worker was not in business for himself while
performing services for the Appellant.
ISSUES TO BE DECIDED
6. The issue to be decided is whether the Worker was
employed under a contract of service with the Appellant during the period
January 1, 2006 to June 10, 2006.
[3]
None of the assumptions
in paragraph 5 were refuted except as described herein respecting
subparagraphs:
(g) At the beginning
the commission was 45%, but at the end it was 40%.
(r) Mr. Van de
Kamp testified that Mr. Abrook could replace himself with a qualified licenced
driver. In fact, Mr. Abrook’s only replacement was another of the Appellant’s
drivers.
(s) Mr. Van de Kamp
testified that he had a deal with Mr. Abrook to sell him a 1996 Ford van used
to transport school children. Both men testified about the alleged deal. The
Court finds that there never was a contract of sale to Mr. Abrook; it was
merely a conversation piece between them. The van was owned by the Appellant.
(x) The worker was
at risk depending on the number of transport calls that the Appellant assigned
to him each day.
[4]
The Court finds that
Mr. Abrook signed a form of “lease” (Exhibit A-2) with the Appellant. Mr.
Abrook didn’t “recall” that document. However, while it purports to be a lease,
it was merely a form that doesn’t specify exactly what is leased. It does state
that Mr. Abrook is responsible for any accidents and the Appellant enforced
this with another driver who had an accident. The Court finds that this
document is a self-serving form of the Appellant’s and that in so far as it is
enforceable, it merely sets out a set of rules of conduct for the individual
employee, but its financial terms respecting the vehicle are fictitious and
unenforceable in a court of law. Moreover, the Appellant paid Mr. Abrook in
cash many times and may have levied its payments on the Ford van onto Mr.
Abrook’s compensation. As a result, the amount found by the Respondent to be
Mr. Abrook’s leviable compensation is confirmed due to the self-serving and
indeterminate actions of the Appellant in paying cash and alleging a form of
“deal” with the Ford van.
[5]
However, all of the
other criteria of employment of Mr. Abrook existed and the Appellant controlled
the number of transport calls it received that would be assigned to Mr. Abrook
or alternatively to its other drivers.
[6]
For these reasons these
appeals are dismissed.
Signed at Edmonton, Alberta, this 3rd day of June 2009.
“D.W. Beaubier”
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