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Citation: 2006TCC227
Date: 20060418
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Docket: 2005-2121(EI)
2005-2122(CPP)
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BETWEEN:
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MACINNIS MORTGAGE CONSULTANTS LIMITED,
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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
RUTH BRAITHWAITE,
Intervenor.
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REASONS FOR JUDGMENT
CampbellJ.
[1] The Appellant carries on a mortgage brokerage business under the umbrella of the Mortgage Brokers and Lenders Registration Act (the "Mortgage Brokers Act") in Nova Scotia. Ruth Braithwaite (the "Worker") worked as a mortgage consultant for the period February 12, 2004 to July 5, 2004 (the "period under appeal"). The Appellant appealed from a determination that the Worker was engaged in insurable employment under a contract of service within the meaning of paragraph 5(1)(a) of the Employment Insurance Act (the "Act") and that the employment was pensionable pursuant to paragraph 6(1)(a) of the Canada Pension Plan (the "Plan"). It is from this determination that the Appellant has appealed. Roderick MacInnis, the President and sole shareholder of the Appellant, also appealed to this Court. However the determination of the Minister of National Revenue (the "Minister") related only to the Worker's employment with the Appellant and did not include Roderick MacInnis personally.
[2] The Respondent relied upon the following assumptions of fact in making the determinations:
(a) the facts stated and admitted above;
(b) the Appellant was in the mortgage brokerage business;
(c) Roderick MacInnis is the sole shareholder and President of the Appellant;
(d) the Worker was hired by the Appellant as a mortgage consultant;
(e) the Worker's duties included meeting with clients to review their mortgage needs and the options available, collecting the required documents, ordering an appraisal, etc.;
(f) the Worker represented the Appellant when performing her duties;
(g) the Worker was required to perform her duties personally;
(h) the Worker was required to maintain a knowledge of the market;
(i) the Worker was required to participate in two annual trade shows as part of a team which represented the Appellant;
(j) the Worker was required to set up a schedule of weekly events that included the Appellant's duty roster, client appointments, marketing time within the community and personal appointments;
(k) the Appellant's duty roster schedule ran from 8 a.m. to 6 p.m.;
(l) the Worker's completed files were subject to audit by the Appellant;
(m) the Worker was required to complete training in accordance with the Appellant's training plan;
(n) the Worker was required to meet with management on a regular basis;
(o) the Worker was required to comply with the Appellant's dress code;
(p) the Appellant resolved customer complaints lodged against the Worker;
(q) the Worker's employment was subject to termination by the Appellant;
(r) the Appellant leased a computer for the Worker's use; the Worker reimbursed the Appellant for the lease costs;
(s) the Worker's remuneration was based on a 60/40 commission split on the first $25,000 in finders fees and a 70/30 split on finders fees in excess of $25,000; and
(t) the Worker was required to participate in the Appellant's health benefits package.
[3] Roderick MacInnis testified that his company, the Appellant, operated a mortgage brokerage centre franchised through CIBC Mortgages Inc. He argued that the Worker was a self-employed broker or consultant who provided services to her clients by assisting them to find an appropriate mortgage company to finance their mortgage needs. The Appellant provided administrative support by enabling the mortgage application process to operate more efficiently and economically. In addition it is the Appellant that holds the license or permit under the Mortgage Brokers Act and is therefore the broker on record. The mortgage consultants like the Worker were not required to be individually licensed under this Act and they could carry on business only in the name of the Appellant. It is the Appellant's responsibility to ensure that these mortgage brokers work within the parameters of the governing legislation. On February 12, 2004 the Appellant and the Worker executed a Consultant's Agreement which set out the terms and conditions governing their work relationship. One of the paragraphs within the Agreement acknowledges that the Worker is not an employee of the Appellant but that she is an independent contractor. I will return later to the specifics of this Agreement.
[4] With respect to the assumptions, the Appellant agreed with (b, (c), (d), (h), (k), (o) and (s). Mr. MacInnis either qualified or disagreed with the following assumptions:
(e) He qualified this assumption by pointing out that the worker's duties also extended to her responsibility to develop her own business by increasing her own markets through participation in duty rosters and other networking self-marketing mechanisms. Mr. MacInnis stated that the duty rosters were voluntary within the office and that the brokers established their own work schedules on these rosters. The duty rosters were one method for brokers to obtain clientele leads as they were exposed during their particular schedule to the walk-in-traffic and to the phone calls from prospective clients. In addition the Worker was able to develop her business as she saw fit through contacts with lawyers, real estate agents and financial planners.
(f) Mr. MacInnis disagreed with this assumption and stated that, although the Appellant's name was on the mortgage application in order to comply with the Act, the Worker actually signed the authorization for the client to obtain the credit report and dealt exclusively with her clients. He stated that she was in fact representing herself and not the Appellant.
(g) Mr. MacInnis explained this assumption by clarifying that it was the Worker that had the knowledge of her client base and their needs. She was free to meet them at her home and never actually had to be in the office. Therefore no one else could perform those duties on her behalf.
(i) Mr. MacInnis qualified this assumption by stating that trade shows were one of the mechanisms to gain market knowledge and that the expenses for attending belonged to the Worker. In addition he pointed out that while the broker works under the Appellant's license, the Appellant must ensure that the brokers are complying with the Mortgage Brokers Act which is accomplished by gaining knowledge of the market through different avenues including trade shows.
(j) Mr. MacInnis disagreed that the Worker was required to be on the duty roster, explaining that it was voluntary but that once each broker committed to the schedule, they had to cover those hours at the office. Mr. MacInnis also stated that he wanted to ensure a schedule of events was in place to prevent conflicting appointments.
(l) Mr. MacInnis qualified this assumption by explaining that the files were subject to audit to comply with the Mortgage Brokers Act and to ensure all mortgage documentation was complete once an application was submitted.
(m) This assumption was denied except that the Worker was told how to use the laptop software and the appropriate forms required by the legislation were reviewed with her. Most of the documents and forms were provided by outside sources. In addition, 35 to 60 hours of computer training was completed prior to engaging a broker. This consisted of an on-line questionnaire completed to determine an individual's knowledge of the industry. Occasionally banks and lending institutions such as CMHC provided training so there were outside venues in which the brokers could participate.
(n) Mr. MacInnis denied this assumption and stated that there were monthly meetings but there were no set times or dates for these.
(p) Mr. MacInnis clarified this assumption stating that he could act as an intermediary on a complaint between the Worker and her client if it was required.
(q) This assumption was clarified because both the Appellant and Worker had the right to terminate.
(r) Mr. MacInnis disagreed with this assumption stating that the laptop belonged solely to the Worker, the lease payments were solely the Worker's responsibility and that the only reason Roderick MacInnis signed the lease personally was because the Worker did not qualify on her own.
(t) This assumption was qualified. The Worker had to participate at some level in the health benefits package simply because the consultants as a group had chosen to have coverage. The Worker opted for the full level package and was responsible for paying 100% of her premiums.
[5] In addition to his evidence respecting the assumptions, Mr. MacInnis stated that, with respect to the compensation package (Schedule "A" to the Consultant's Agreement), all income was commission generated, with the industry allowing divisions, between the Appellant and consultants, ranging from splits of 50/50 to 95/5, depending on the general division of office overhead, as determined by the Appellant. The percentage that went to the Appellant covered the Worker's pro rata share of office costs such as telephone, copying, faxing, rent, and office equipment. This avoided tracking each broker's share of office expenses.
[6] The Appellant has two office employees and five brokers. The brokers work in one large room where five individual work stations are located. Each station is equipped with its own telephone but each broker was required to have a laptop which was the key component to their business.
[7] The Worker was responsible to solicit her own clients but all of the brokers were permitted to access a client base established by the Appellant.
[8] Mr. MacInnis stated that the brokers were required by the Mortgage Broker's Act to carry errors and omissions insurance, with each broker responsible for their own fee to carry it.
[9] In respect to the non-competition clauses contained in the contract between the Appellant and the Worker, Mr. MacInnis stated that it was primarily to protect privacy of client files. He stated it would prevent a broker from setting up on their own in competition to the Appellant but that the Appellant would not challenge a broker who went to work for a competitor.
[10] According to the evidence of Mr. MacInnis, the Worker paid all of her own advertising expenses and decided on those venues where she would do her advertising. Advertising was on behalf of the Appellant conducted under the license and logo in compliance with the legislation.
[11] In respect to the scheduling and hours worked, Mr. MacInnis stated that the brokers established their own schedules and hours within the daily office hours of eight to six. Each broker had their own key to the office and determined their individual hours of work. Brokers attended construction sites on Sunday afternoons but this was on a voluntary basis and one broker did not participate at all in this program.
[12] In addition to the evidence of Roderick MacInnis, the Appellant relied on the testimony of Jo-Ann Hamilton, the Senior Administrative Officer under the Mortgage Brokers Act. On cross-examination she explained that if a corporate entity or an individual carries on business under this Act, each requires a license but that if the licensed entity has individuals to conduct business those individuals do not need to be licensed under the Act. Instead they are viewed as carrying on business on behalf of or in the name of the licensed entity. She pointed out that an individual could work for several licensed entities at the same time provided they advised the public which licensed entity they were representing in that particular transaction. She also went on to explain that the Mortgage Brokers Act does not mandate a license holder to stay current with respect to qualifications, education or training. Any advertising must be carried out in the name of the licensed holder according to the Act. Also, the licensed entity is required to maintain files, together with an office in the Province, for the purposes of that department conducting investigations. She also added that the mortgage application forms must contain the name of the licensed entity only where the consultants do not have a license.
[13] The final witness was Ruth Braithwaite, the intervenor and the Worker. Her evidence in some areas contradicted the evidence of Mr. MacInnis. She testified that trade show attendance, open houses, weekly meetings and duty rosters for in-house referrals were mandatory. On examination by Mr. MacInnis she did agree however that one broker freely opted out of attending some of these events. Scheduling for open houses was agreed upon via group discussion among the consultants and then the schedule was given to the receptionist to post. On questioning by Respondent counsel, she stated that the idea of duty rosters commenced after she began working at the office. The consultants discussed the schedule they wanted and worked it out among themselves. If she wanted to opt out in any week she was free to do so but to her way of thinking it was still mandatory because if she was not participating to obtain telephone calls and leads, her business would suffer. She stated that open houses were completed on a rotational basis and, as in the duty roster, the brokers reached an agreement and a schedule was established.
[14] In addition to the Consultant's Agreement that was signed, the parties also signed a contract entitled "Employment Agreement" on the same date. Although Mr. MacInnis stated that the Employment Agreement was signed by mistake and that it was the Consultant's Agreement that was the relevant contract, the Worker stated that she was unaware that the Employment Agreement was never intended to be part of the relevant agreement. She did agree that, prior to the execution of any contract, both she and Mr. MacInnis had negotiated that she would be an independent contractor who would receive assistance with client leads. She agreed there was a meeting of minds respecting her status as independent contractor.
[15] With respect to training, she testified that she was an experienced broker when she commenced working for the Appellant but that she did take a free on-line course. The Schedule "A" attached to their agreement referred to completion of required training and she stated that it was mandatory in the sense that a broker had to keep up with education going on within the industry. She also stated that she felt she would not have been able to negotiate the commission split although she said it was acceptable to her. With respect to the errors and omissions insurance, she stated that the Appellant had certain insurance requirements and that if she wanted to work at the centre she had to carry the stipulated insurance. She also believed that the life and disability insurance was mandatory. On questioning by Mr. MacInnis she stated that she was not aware that there was only a minimum requirement of participation in the package and beyond that level she was free to opt out.
[16] The Worker stated that there were two different meetings that she attended; the breakfast meetings and the one-on-one management meetings. Although she admitted that she was never actually told that the breakfast meetings (which were for brain storming and discussing upcoming events) were mandatory, she felt that it was essential to attend the meetings to keep abreast of changes in scheduling, trade show events and office policy. The one-on-one meetings would occur when, for example, her mortgage application forms were incorrect or incomplete. She agreed that she had complete autonomy in scheduling her client appointments but she felt that she was representing the Appellant at these meetings. She thought that there was a fee to attend the trade show which the Appellant paid. This contradicted the evidence of Mr. MacInnis, who stated the consultants looked after their own costs to attend. If she chose not to be on the duty roster on a particular day, it was her choice to be in the office. She stated however that she conducted most of her work from the office of the Appellant. When she was in the office she felt that she was supervised as most of the applications were processed through the office manager to ensure compliance with the Mortgage Brokers Act. She stated that Mr. MacInnis was in the office every day. In addition the office manager was aware of the clients that the Worker was seeing. Although complaints were never discussed in the beginning, she thought that complaints about her would have to be taken up with Mr. MacInnis.
[17] The Worker confirmed the evidence of Mr. MacInnis that she looked after all of her advertising costs and in some cases she shared the costs with an outside realtor. She also confirmed that when she advertised, she had to do so under the name of the Appellant because the license was held in the Appellant's name under the legislation.
[18] The Worker confirmed that she had just moved to the area, had not yet established herself and therefore was unable to have the laptop lease in her personal name. This confirmed the evidence of Mr. MacInnis as to why he signed this lease. She made the lease payments and confirmed that when she left the company, the laptop was hers to keep. She also confirmed that it was the integral part of the job.
[19] In respect to hiring someone to attend open houses on her behalf, she stated she would be able to do so, provided that individual was an associate within the office.
Analysis:
[20] The issue is whether the Worker was engaged by the Appellant pursuant to a contract of services or a contract for services. This issue must be resolved in light of the well known factors, referred to as the four-in-one test, as set out in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025 and approved by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983. The factors of this four-fold test are control, ownership of tools, chance of profit, risk of loss and to a lesser extent the degree of integration. However a review of the facts as they relate to each of these factors does not guarantee a magic formula where such a determination will always be automatically clear. My comment is supported by the statement of Major J. in Sagaz at paragraph 48 where he states:
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.
Major J. goes on in Sagaz to approve the question that was posed by Cooke J. in Market Investigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732. After examining the facts in relation to the four-in-one test, one should step back after viewing the totality of the relationship between the parties and ask the question "Whose business is it?"
[21] With respect to the first factor of control, it is important to look at whether the payor had the ability to control how the work was performed, when it was performed and where it was performed. The Respondent argued that the control and integration factors favoured an employer/employee relationship while the factors of tools and intention did not. Although there was contradictory evidence on some of the points involving the control factor, when I look at the broker's job description (Schedule "C" to the Consultant's Agreement), it is clear that each broker, including the Worker, was expected to perform the work as part of a team with participation in office marketing activities that occurred off site, including two annual trade shows. In addition the Worker was expected to set up a schedule of weekly events including client appointments, duty roster and individual marketing efforts. The evidence of both Mr. MacInnis and the Worker was that participation in the duty roster and the open houses was not mandatory but that client leads would be more difficult to obtain if one did not participate. But in the end the Appellant did not behave as most employers would because the evidence did not support that participation in these activities was mandatory. The evidence seemed to be that the Worker's participation in office activities played a significant part in her success in obtaining client leads but that this participation, although encouraged, was left largely to her own discretion. In addition evidence was adduced that the Appellant made no demands on the Worker respecting her comings and goings at the office. She was free, according to the evidence, to set her own hours of work, and when she chose her hours she was free to work from her home or from the office. She was not paid a set amount or salary but instead she was compensated based on a split commission. The rate of her compensation was directly related to the effort she put into the work and how successful she was in obtaining a client base. The Appellant here did not control when or where the work would be done. She also paid her own advertising costs. Although the Worker advertised and wrote the application under the name and logo of the Appellant, it was essentially done in this manner to comply with the Mortgage Brokers Act within the Province because it was the Appellant that held the license. Part of Jo-Ann Hamilton's evidence was that a broker could work for several companies at once doing brokerage work as long as they identified which licensed company they were representing in each instance of completing a mortgage application. Even the legislation implies less control over a broker by a payor than would be expected in an employee/employer relationship. The mandatory keeping of records was again an administrative legislative requirement under this Act.
[22] As I understood the evidence, the Worker completed an on-line questionnaire prior to her engagement and subsequent to that she received guidance in the completion of the application forms which were provided primarily from outside sources. On-going training was provided by outside sources where participation would be on a voluntary basis. The evidence of Mr. MacInnis was that there was little or no direct mandatory training while the Worker stated that they had a verbal agreement that she would complete on-line training in order to be able to do the work. Another item which factors into control is the non-competition clauses contained in the contract between these parties. These clauses prevented the Worker from working for a competitor for two years after her engagement with the Appellant ceased. Although Mr. MacInnis stated that he would not enforce this clause, the Worker thought that it did and it was certainly a binding clause in the contract. In addition a privacy clause prevented the Worker from retaining any materials and documents or disclosing any confidential client information upon the termination of her engagement. These clauses referred to the Appellant's proprietary right to such materials as well as the obligation of the Worker to refrain from soliciting customers, and prospective borrowers belonging to the Appellant. Although I do not believe that the inclusion of a clause to protect privacy of confidential client materials and information which a Worker may gain knowledge of, is necessarily indicative of an employee/employer relationship, the non-competitive portion which controls the work subsequent to the Worker's departure with the Appellant does point to the Worker as an employee. One could also draw the conclusion from the wording that the clients became the Appellant's clients because these clauses reference the prohibition against the Worker soliciting any customer of the Appellant.
[23] Although the Respondent argued that the control factor clearly favoured the Worker's engagement as being that of an employee, I do not see it as clearly. In fact there are some facts within the control factor that point to an employee and some to an independent contractor status. While the non-competition clause, the references to customer lists and the fact that the Worker felt she was supervised to some extent, support an employee status, many of the other factors do not. The Worker established her own hours, where she met the clients, when she met them, when and where she advertised, whether she would share advertising space and costs with outside institutions and how much she would spend on advertising because those costs were hers. These factors all clearly point in the opposite direction to a relationship of independent contractor. Although the Worker felt she had to attend breakfast meetings, open houses and participate on duty rosters, she confirmed the evidence of Mr. McInnis that these activities were not actually mandatory. They were all avenues to obtain client leads and therefore an important method of developing a client base but she was not directed to be in attendance and accountable as an employee would be. The evidence did not support that the Appellant had the right to exercise any control over the performance of the Worker's duties except to the extent that the Worker had to comply with the proper completion of forms as dictated by the Mortgage Brokers Act. The evidence was silent in respect to sick leave and vacation pay but did make reference to a plan of life and health insurance which again was not mandated by the Appellant but was organized by the brokers themselves, resulting in a required minimum level of participation by each broker. There also appears to have been some training provided but it was minimal and according to the evidence a great deal of the training was provided not by the Appellant but by outside institutions at outside venues. There was nothing in the evidence to suggest that this outside training was mandatory. In addition both parties could terminate their contract.
[24] Because I see factors within the element of control which point almost equally in terms of weight to that of employee and to that of independent contractor, I conclude that the control test is of neutral value in my determination of the Worker's status here. It is simply a neutral indicator of the relationship of the Appellant and the Worker because within the control realm there are compelling factors pointing in both directions.
[25] The next factor, ownership of tools, points clearly to the Worker's engagement as that of independent contractor. Respondent counsel agreed with the evidence on this point. Both parties agreed that the one piece of equipment which was key to the Worker's performance was a laptop which could be fitted with the appropriate software package. Both also agreed that it was up to the Worker to provide this laptop and both explained why the lease was signed by Mr. McInnis. The Worker made the lease payments and at the termination of her engagement the laptop belonged to her. There is no question here that this factor points to a finding of independent contractor.
[26] In respect to the factors of chance of profit and risk of loss, Respondent counsel pointed out that the commission split was mandated by the Appellant without any input by the Worker. However the Worker testified that she was happy with the commission split and that it was only her belief that she could not negotiate this item. Respondent counsel pointed out that the Worker's pro rata share of overhead expenses was paid from this commission split but that as the Worker had no control over office expenses she could not reduce those expenses to increase her profit. While this is true, the Worker did have some considerable control over her opportunity for profit, because her commission earnings depended on the time and effort which she was prepared to invest in attracting and keeping clientele. The Worker was not paid for hours worked. Her compensation was based solely upon her ability to obtain client leads and to pursue those leads through to execution of mortgage applications. The profit factor is not characteristic of an employee/employer relationship and neutralizes the risk of loss factor which to some extent points to an employee/employer relationship.
[27] The integration factor is to be viewed from the perspective of the Worker and is tied in with the question of "Whose business is it?" It is clear that the Worker had to complete the forms and advertise her product under the license that belonged to the Appellant pursuant to the legislation. However the evidence of Ms. Hamilton, who oversaw the administration of this legislation, indicated that the Worker could also have developed her client base in respect to a number of licensed companies at the same time, provided she indicated to the potential client that she was completing the documentation on behalf of a particular licensed entity. The facts here point again in different directions. The fact that the Appellant exercised no control over the Worker's comings and goings, or working hours or location of performance of work point to the Worker operating her own business without being integrated into the Appellant's operations. In her own words she negotiated to be, and it was her intent to be, an independent contractor within this working relationship. Once the Worker received the minimum amount of training, she was then free to develop her clientele through whatever strategies she deemed appropriate including the in-house referral system. However she was basically the master of her own destiny.
[28] I believe the case law is clear that the manner in which individuals choose to characterize their working relationships may not always be determinative. This is certainly the case where the particular facts, analyzed within the four-fold test, point clearly in a direction opposite to the label the parties have chosen to apply to their work relationship. However, I believe that my analysis of the facts in this appeal show that this is a case that is very close to call. Some of the evidence is contradictory but in the end there are arrows pointing almost equally in both the direction of an employee and in the direction of an independent contractor. My assessment, of the total relationship between the parties, provides no clear conclusions and where that is the case then the intent between the parties in negotiating their working relationship must be given more weight than I would give to it in other appeals. Both parties indicated that they intended their work relationship to be that of an independent contractor. In addition the Worker was an experienced mortgage broker with industry experience who would possess at least some knowledge and preconceived notion of how she wanted to approach this relationship with the Appellant. I cannot disregard the many areas where they acted and conducted themselves in a manner which would be consistent with their intention.
[29] The appeals are therefore allowed, without costs, and the decision of the Minister is vacated.
Signed at Vancouver, British Columbia, this 18th day of April 2006.
Campbell J.
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