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Citation: 2009 TCC 200
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Date: 20090422
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Dockets: 2008-1877(EI)
2008-2583(CPP)
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BETWEEN:
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MARK VANDERVELDE,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
and
JULIEN BRANCH,
Intervener.
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REASONS FOR JUDGMENT
(Edited from the transcript of Reasons for Judgment
delivered orally from the Bench on March 25, 2009 in Nanaimo, British Columbia)
Little J.
A. FACTS:
[1] For
several years, the Appellant and his former wife provided cleaning services to
branches of the Royal Bank of Canada (“Royal Bank”) in
Parksville, B.C. and Qualicum, B.C. The cleaning services were provided by the
Appellant and his former spouse on an independent contractor basis. That is, the
Appellant and his former spouse were not employees of the Royal Bank.
[2] A
company by the name of Bee Clean Limited (hereinafter referred to as “Bee
Clean”) entered into an agreement to provide cleaning services to branch
offices operated by the Royal Bank of Canada across Canada. The Appellant and his former spouse agreed to be
subcontractors for Bee Clean, and to provide the cleaning services for the Royal
Bank branch offices in Parksville and Qualicum.
[3] The
Appellant and his former spouse separated in November 2003. In mid‑2004,
the Appellant started to do the cleaning himself as a subcontractor for Bee
Clean.
[4] In
2006, the Appellant purchased a house in Port Alberni, B.C., however he continued to commute to
Parksville, for his regular day job, plus the cleaning jobs in Parksville and
Qualicum.
[5] The
Appellant stated that he was “burnt out” with all of the work, commuting, et
cetera, and he needed help. The Appellant posted an advertisement for help
at Services Canada. Mr. Julien Branch responded to the advertisement
(Mr. Branch is referred to as the “Worker”).
[6] The
Appellant stated that he met the Worker while he was cleaning one of the bank offices
and explained the cleaning situation to him.
[7] The
Appellant testified that he hired the Worker to provide cleaning services to
the two Bank facilities for four days per week. The Worker was to do the
cleaning services for Tuesday, Wednesday, Thursday and Friday. The Appellant
also testified that he told the Worker that he would be working as a
subcontractor at $500.00 per month. The Appellant said that he also told the
Worker that he would receive cash of $500.00 per month, and there would be no
deductions for Employment Insurance, Canada Pension Plan or Income Tax.
[8] The
Appellant testified that the Worker accepted this arrangement, and that the
Worker commenced to work as a subcontractor for the period February 1, 2006 to
February 27, 2007 (a period of approximately 13 months (the “Period”)).
[9] The
Appellant said that he continued to do cleaning work for Bee Clean every Monday
and the Appellant also did “extras” for Bee Clean such as removing graphiti
from bank walls, cleaning snow and for additional safety work as specified by
Bee Clean. The Appellant said that he received $1,010.00 per month from Bee
Clean during the Period and additional payments for additional work specified
as “extras”.
[10] As noted above, the Appellant paid $500.00 per month to the Worker
during the Period, pursuant to the subcontractor arrangement. The Appellant
said that during the Period, the Worker also continued to provide cleaning
services to two branches of the Canadian Imperial Bank of Commerce, one in
Parksville and one in Qualicum.
[11] The Appellant also said that Bee Clean provided, at the bank offices,
the cleaning supplies and equipment required by the Worker or the Appellant to
perform the services. The Appellant also testified that the Worker was an
experienced cleaner, and that he did not require any supervision. The Appellant
also said that he did not know when the Worker provided “cleaning services”
i.e. at what time.
[12] On November 22, 2007 the Minister of National Revenue issued a Ruling
in which it was stated that the Worker was employed in insurable employment
with the Appellant during the Period – February 1, 2006 to February 27, 2007.
B. ISSUE:
[13] The issue is whether the Worker was employed in insurable employment
by the Appellant during the Period.
C. ANALYSIS AND DECISION:
[14] In resolving cases of this nature, the Courts have provided a number
of tests. For example, in the case of Wiebe Door
Services Ltd. v. M.N.R., 87 DTC 5025
(FCA), MacGuigan, J. outlined the following tests:
(a) control;
(b) ownership of tools;
(c) chance of profit; and
(d) risk of loss
In terms of control, in this situation, as I have indicated, the Appellant
did not exercise any control over the Worker. The Worker knew what to do
because he was an experienced cleaner. The Worker could also clean the bank
offices whenever he wished. The Worker was also able to work at other cleaning
jobs during the same period.
[15] Now in this regard, I would like to refer briefly to a portion of the
Notice of Appeal filed by the Appellant. The Appellant said:
There are many other points as
well, including that Julien (i.e. the “Worker”) was free to work for whoever
else he wanted and provide his services to different payer’s at the same time.
He was already doing that when I met him.
In point form:
·
no
supervision
·
no
set hours to do the work
·
do
the work anyway you want
·
bring
your own equipment, if preferable or use Bee Clean’s
·
no
control over daily activities
·
work
independently
·
take
2 or 10 hours – doesn’t matter, payment is the same
·
come
and go as you please, as long as the job gets done
·
work
for as many others as you want
·
do
the work in whatever order or methods you like
·
have
others do the work for you if you want.
[16] Obviously there was no control in the classic sense that the word Control
is used.
[17] The ownership of tools - as indicated above, Bee Clean provided the
tools. This test is inconclusive.
[18] Chance of profits – the Worker could not make any more money unless he
renegotiated the deal with the Appellant.
[19] Intention – The Appellant testified that the Intention was very clear
that the Worker was to be an independent contractor. No evidence was produced
to refute this testimony.
[20] When one considers this situation, it is apparent I believe, that the
Worker was running his own business and he was not an employee of the
Appellant.
[21] I have also referred to a number of Court decisions including Wiebe
Door (see paragraph 14), 671122 Ontario Ltd. v.
Sagaz Industries Canada Inc., [2001] S.C.J. No.
61, in Supreme Court of Canada, and Lang et al. v. M.N.R., 2007 DTC 1754,
of the former Chief Justice Bowman. I also accept the uncontradicted sworn testimony of the
Appellant, and I have concluded that the appeals filed under the Employment
Insurance Act and the Canada Pension Plan should be allowed without
costs.
Signed at Vancouver, British Columbia this 22nd day of April 2009.
Little
J.
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