Date:
20010824
Docket:
2000-4907-EI,
2000-4909-CPP
BETWEEN:
SUPREME
TRACTOR SERVICES LTD.,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Reasons
for Judgment
Porter,
D.J.T.C.C.
[1]
These appeals were heard on common evidence by
consent of the parties on the 13th of May 2001 at Edmonton,
Alberta.
[2]
The Appellant has appealed from the decisions
of the Minister of National Revenue (the "Minister"), dated
August 29, 2000 that the employment with it of one Donald Dixon
("the Worker") for the period May 1, 1998 to July 27, 1999 was
both insurable under the Employment Insurance Act (the
"EI Act") and pensionable under the Canada Pension
Plan (the "CP Plan"), for the following
reasons:
It has been decided
that this employment was insurable for the period in question for
the following reason: Donald A. Dixon was employed under a
contract of service and was therefore your employee engaged in
insurable employment.
Notwithstanding the
above, Donald A. Dixon was employed in insurable employment as he
was placed in employment by you, to perform services for and
under the direction and control of your clients.
The decisions were
respectively said to be issued pursuant to section 93 of the
EI Act and subsection 27.2(3) of the CP Plan
and to be based on paragraphs 5(1)(a) of the EI Act
and 6(g) of the Employment Insurance Regulations,
and paragraph 6(1)(a) of the CP Plan and subsection
34(1) of the CP Plan Regulations.
[3]
At the outset of the hearing of the appeal,
counsel for the Minister conceded that the Worker was engaged as
an independent contractor under a contract for
services and not an employee under a contract of
service. This was in accordance with the initial ruling issued in
this case before the appeal to the Minister. Thus, the issue left
for this Court was whether or not the Worker had been placed in
employment by the Appellant as a grader operator to perform
services for and under direction and control of a client of the
Appellant, namely, the Municipal District No. 124,
Alberta.
[4]
The material facts reveal that the Appellant
operated a heavy duty equipment business throughout the time in
question. It contracted out certain equipment to other
organisations. In the case at hand, it contracted with the
Municipal District No. 124 (the "MD") to provide summer and
winter maintenance of certain roads within the Municipal District
area. In order to carry out these responsibilities under the
contract, the Appellant was required to provide a motor grader
with a skilled and well-trained operator. The operator in
question was the Worker, and it is the nature of his employment
in this respect, which is at issue.
The Regulations
[5]
It is to be noted that the wording in the two
statutory schemes (EI and CPP), is somewhat
different. One is therefore not necessarily inclusive of the
other, although there is a certain commonality. The
Regulations in question read as follows:
Employment Insurance
Regulations
6.
Employment in any of the following employments, unless it is
excluded from insurable employment by any provision of these
Regulations, is included in insurable employment:
...
(g)
employment of a person who is placed in that employment by a
placement or employment agency to perform services for and under
the direction and control of a client of the agency, where that
person is remunerated by the agency for the performance of those
services.
...
Section 34 Canada
Pension Plan Regulations
34(1) Where any
individual is placed by a placement or employment agency in
employment with or for performance of services for a client of
the agency and the terms or conditions on which the employment or
services are performed and the remuneration thereof is paid
constitute a contract of service or are analogous to a contract
of service, the employment or performance of services is included
in pensionable employment and the agency or the client, whichever
pays the remuneration to the individual, shall, for the purposes
of maintaining records and filing returns and paying, deducting
and remitting contributions payable by and in respect of the
individual under the Act and these Regulations, be deemed to be
the employer of the individual.
(2) For the purposes
of subsection (1), "placement or employment agency" includes any
person or organization that is engaged in the business of placing
individuals in employment or for performance of services or of
securing employment for individuals for a fee, reward or other
remuneration.
[6]
It is to be noticed that "placement agency" or
"employment agency" is defined to include certain situations in
the CPP Regulations. That definition is not all inclusive.
There is no definition of the term in the EI
Regulations.
[7]
Bonner, T.C.J. in the case of Computer
Action Inc. and M.N.R. and Alan Rocker, T.C.J. 101,
Court No. 88-502 (UI) said that the term should be given its
ordinary meaning and read in context:
... an organization
engaged in matching requests for work with requests for
workers.
[8]
Teskey, T.C.J. in the case of Rod Turpin
Consulting Ltd, o/a Tundra Site Services v. M.N.R. and Dan
Monaghan, 1997, T.C.J. No. 1052, D.R.S. 97-17672, Court File
No. 97-19(UI), said this:
The Appellant argues
that it is not a placement agency but to look at it as a general
contractor. This I cannot accept. General contractors usually by
the terms of their contracts with clients are responsible to the
client to construct the project contracted to be constructed in a
good and workmanlike manner. Herein the only responsibility the
Appellant had to Cominco was to provide qualified workers as
specified by Cominco.
The Appellant was
acting as a placement agency in respect of this worker. The
Appellant was asked to provide a journeyman electrician which it
did. It paid the electrician and charged the wages to Cominco
together with a fee for services.
[9]
In the case of Dyck v. M.N.R./Bigknife
Oilfield Operating Ltd. 1999 T.C.J. No. 852, Court Files
1999-1521 (EI), I held as follows:
The position of the
Minister is that Bigknife acted in this situation as a placement
or employment agency. The EI Regulation in question
was changed in 1997 and thus, previous case law is not
particularly helpful. However, the logic of Teskey, J. in Rod
Turpin Consulting Ltd. o/a Tundra Site Services v. The
Minister of National Revenue ([1997] T.C.J. No. 1052, DRS
97-17672, Court File No. 97-19(UI)) seems as relevant today as it
was then. Bigknife was not a general contractor. It was only
responsible to supply qualified personnel. There was no
individual fees for the different people who were engaged, but no
doubt, that was all built into the overall contract. It places
Dyck, to the extent that he needed it in providing his services
under the direction and control of Fletcher. They had the right
to control his work. In my view, EI Regulation 6(g)
and CPP Regulation 34 do each apply in this
situation.
[10]
I am of the view that there is a fundamental
principle to be grasped in these cases which really should
simplify the question for the parties. It seems to me that the
intention or the "pith and substance" of the Regulations
is to bring into the basket of the two social schemes set up by
Parliament, those workers whether they are employees under a
contract of service or independent contractors under contracts
for services, who simply contract with entity A for a fee (or
other recompense), to be found or placed in work (employment)
with or under the direction and control of a third entity B.
Thus, these workers do not contract with entity A to do any work
for entity A as part of the latter's business. Further, entity A
does not contract with entity B to do any work for entity B other
than to provide them with personnel for which they collect a fee
or other remuneration.
[11]
That situation seems to me, to be absolutely
and mutually exclusive of any arrangement whereby a worker is
engaged to perform services for entity A in the course of the
latter's business, or where entity A has a contract with entity B
to perform services for entity B. In such a situation, entity A
is not providing or placing personnel, but carrying out its
contractual obligation to provide those services to entity
B.
[12]
Thus, the first question to be asked is
whether the worker is performing services for entity A as part of
the business of the latter, albeit part of that business may be a
contract for entity A to provide a service for entity B, or
whether entity A is simply acquiring personnel as its very
business with no contract to undertake anything further than to
pass the worker on to entity B to undertake whatever the business
of entity B might be. The simple question to ask is whether
entity A is under any obligation to provide a service to entity B
other than simply provide personnel. Is it obligated to perform
in some other way than simply to make people available? If the
answer is yes, it clearly has business of its own as does any
general contractor on a building site and the worker is not
covered by the Regulations under either statute. If
however, the answer is no, that is, it is not obligated to carry
out any service other than to provide personnel, then clearly the
worker in such a situation is covered by the Regulations
under both statutes.
[13]
The question as I see it is not so much about
who is the ultimate recipient of the work or services provided as
this will cover every single possible subcontract situation, but
rather who is under obligation to provide the service. If the
entity alleged to be the placement agency is under an obligation
to provide a service over and above the provision of personnel,
it is not placing people, but rather performing that service and
is not covered by the Regulations.
[14]
I refer to the Federal Court of Appeal case of
Vulcain Alarme Inc. v. The Minister of
National Revenue, (1999) 249 N.R. 1
for an analogy, where the same principle is clearly set out in
relation to whether a subcontractor becomes an employee in
certain situations. Létourneau, J.A. said
this:
A
contractor who, for example, works on site on a subcontract does
not serve his customers but those of the payer, that is the
general contractor who has retained his services. The fact that
Mr. Blouin had to report to the plaintiff's premises once a month
to get his service sheets and so to learn the list of customers
requiring service, and consequently the places where his services
would be provided, does not make him an employee. A contractor
performing work for a business has to know the places where
services are required and their frequency just as an employee
does under a contract of employment. Priority in performance of
the work required of a worker is not the apanage of a contract of
employment. Contractors or subcontractors are also often
approached by various influential customers who force them to set
priorities in providing their services or to comply with the
customers' requirements.
[15]
The simple facts that sub-contractors
contracting with entity A are required to comply with the
requirements of entity B does not per se place those persons
under the direction and control of entity B any more than it
makes entity B a customer of those persons.
[16]
The parties also placed before me
for consideration the following reported cases:
Standing v. Canada (Minister of National Revenue -
M.N.R.) [1992]
No. 890
Silverside Computer Systems Inc. v. Canada (Minister of
National Revenue - M.N.R.) [1997] T.C.J. No. 38
Silverside Computer Systems Inc. v. Canada (Minister of
National Revenue -
M.N.R.) [1998] S.C.C.A. No. 96
Bartimaeus Inc. v. Canada (Minister of National Revenue -
M.N.R.) [1999] T.C.J.
No. 216
The Facts
[17]
The Minister in the Replies to the
Notices of Appeal signed on his behalf was said to admit the
following facts alleged by the Appellant in its Notices of
Appeal:
(a)
The Appellant carried on active business in Smith,
Alberta;
(b)
the Appellant and the Worker signed a Memorandum of Agreement
that the latter would provide services for grading work, support
vehicle and tools, all non-machine expenses, to service and
maintain equipment and to ensure all maintenance was done on a
regular and daily basis in respect of the grading
operation;
(c)
that the agreement stated that the Workers' Compensation was
$17.00 per billable hour only, and non-billable hours were not to
exceed 10 hours per month.
[18]
The Minister, in arriving at his
decisions, was said in the Replies to the Notices of Appeal to
have relied on the following assumptions of fact:
(a)
the facts as admitted above;
(b)
the Appellant was not related to the Worker;
(c)
the Appellant had a contract with the Client to provide a grader
and a grader operator to provide grading services;
(d)
the Appellant's business included farming and contracting out
heavy duty equipment such as caterpillars, backhoes, trucks and
graders;
(e)
the Worker
(i)
worked as a grader operator for the Appellant
(ii)
graded roads for the Client; and
(iii)
operated a grader owned by the Appellant;
(f)
the Client determined the Worker's hours;
(g)
the Client instructed the Worker each morning on which road or
roads to maintain;
(h)
the Client instructed the Worker as to the order his tasks were
to be completed;
(i)
the Client was responsible for losses or damages incurred by the
Worker;
(j)
the Client provided the Worker with a two way radio;
(k)
the Worker's normal working hours were from 7:00 a.m. until
3:00 or 4:00 p.m. Monday to Friday;
(l)
the Worker's hours were recorded;
(m)
the day-to-day work operation decisions were made by the
Client's road boss;
(n)
the Worker required permission to take time off during the
day;
(o)
the Worker did not require an assistant;
(p)
on May 19, 1999 the Appellant and the Client entered into a
contract called Smith Grader Maintenance Agreement (the
"Smith Agreement") which covered the period April 1,
1999 to March 31, 2000;
(q)
the Smith Agreement consisted of summer and winter maintenance of
approximately 163 kilometers of gravel and asphaltic surfaced
roads in either the Smith or Smith East region. The maintenance
includes blading, spreading gravel, removal of ice and snow and
other work as directed by the Client;
(r)
additional conditions in the Smith Agreement are as
follows:
(i)
bids were only accepted by residents owning the required
equipment and familiar with the heavy construction
industry;
(ii)
the Appellant was required to provide and maintain the proper
equipment;
(iii)
the Appellant was required to provide a skilled and experienced
operator;
(iv)
the hourly rate includes the operator's wages, fuel, oil,
repairs, maintenance and ground engaging tools;
(v)
the grader must be a 1994 year or later model with a minimum 185
horsepower and have the necessary attachments;
(vi)
the Worker was required to attend the Client's safety
meetings;
(vii) the
Appellant had to provide the Worker with WCB coverage;
(viii) the Worker
commenced and discontinued work upon the direction of the
Client;
(ix)
the Worker started his duties at 7:00 a.m.;
(x)
during the summer the Worker worked only during daylight
hours;
(xi)
during the winter the work may involve 24 hours emergency
services;
(xii)
the Client required the Worker to be at the job site within
4 hours of the Client's call in the summer and within 2
hours in the winter;
(xiii) the
Client specified the grading requirements regarding crowns,
superelevations, ridges rocks, railway crossings, flashing
lights, bridges and guardrails;
(xiv) the Worker
was required to complete Work Tickets and Road Grading Assignment
Maps on a daily basis;
(xv) the
Work Tickets and Road Grading Assignment Maps were inspected and
signed by the Client; and
(xvi) the Client
paid the Appellant $65.00 per hour;
(s)
as outlined in the May 4, 1998 Agreement
(i)
the Worker provided his tools and his truck as a support
vehicle;
(ii)
the Worker was responsible for expenses other than for the
grader;
(iii)
the Worker was responsible for servicing and maintaining the
grader including oil changes, filters and grease;
(iv)
the Appellant paid the Worker $17.00 per hour;
(v)
the Worker was responsible for all operations of the grader,
servicing, travelling, tools, and supplying the vehicle to take
himself to and from work;
(t)
the Appellant required the Worker to wear a safety vest, hard
hat, safety footwear, seat belts, and an audible alarm
system;
(u)
the Worker was paid monthly;
(v)
the Worker was paid by cheque;
(w)
the Worker was paid after the 25th of each month;`
(x)
the Appellant provided the Worker with the grader;
(y)
the Client paid the Appellant for the work completed;
(z)
the Appellant placed the Worker in employment to perform services
for the Client;
(aa) the
Appellant was under the direction and control of the
Client;
(bb) the
Appellant remunerated the Worker.
[19]
Evidence was given on behalf of
the Appellant by Rose Marie Hayes, who said that at the material
times, she was the secretary-treasurer of the Appellant
corporation. She and her husband ran the company. Her husband
worked in the field. She ran the office. It was an oilfield
service company and they provided, amongst other things, road
building and maintenance services to the oil industry. They
tendered bids on various projects to obtain their work. They had
a number of pieces of heavy-duty equipment and at one point in
1998/99 had as many as 120 employees.
[20]
The Appellant had successfully bid
on the summer and winter grader maintenance contract and that
contract (Exhibit A-3) was signed and came into effect April 1,
1999. It is clear from this contract that the corporation was
obliged to provide the following service:
The Smith
Grader Maintenance Contract consists of summer and winter
maintenance of approximately 163 kilometers of gravel and
asphaltic surfaced roads in either the Smith or Smith East region
as per the attachments. Maintenance will include blading,
spreading gravel, removal of ice and snow and other work as
directed by the Municipal District's Director of Field
Services or his representative.
To carry out this
work, the Appellant was required to supply and use a grader of
certain specifications and supply a skilled and experienced
operator. It is clear that this was not a lease of the equipment,
but rather a contract to provide the service in question. The
Appellant had the right to change operators at will, but if it
wished to change the principal operator, then the approval of the
Municipal District (MD) was required for the substitute principal
operators. Other incidental operators did not need
approval.
[21]
Clause 14 of the contract was significant. It
read as follows:
The Contractor
and all persons subject to his direction, management and
control shall indemnify and hold harmless the Municipal
District, ...
The Municipal
District shall not be liable nor responsible for any bodily or
personal injury or property damage of any nature whatsoever that
may be suffered or sustained by the Contractor, his employees or
agents in the performance of this Agreement.
This seems to me to
indicate that the MD considered any operator to remain under the
"direction, management and control" of the Appellant.
[22]
I noted also in Clause 16 that it was the
Appellant who was required to ensure that the assigned operator,
who I take it to be the Worker, attend all MD safety
meetings.
[23]
Clause 18 of the agreement required the
Appellant (the contractor) to commence and discontinue work upon
the direction of the MD Director of Field Services. It did not
require the operator to do so, but the contractor, that is the
Appellant, to do so.
[24]
Similarly, Clause 20 required the contractor,
the Appellant, to provide a contact number to ensure that "the
operator" (the Worker) was at the job site within certain
specified times of call. Again, this responsibility by contract
was imposed upon the Appellant.
[25]
Charges by the Appellant to the MD were
covered by Clause 26 of the contract. The Appellant was unable to
charge the MD for time spent by the worker for breakdowns,
changing blades, and "other activities such as meal breaks and
refueling, etc.". Thus, clearly none of these tasks fell under
the direction or control of the MD.
[26]
Mrs. Hayes indicated in evidence that it was
she who engaged the Worker. A written agreement was entered
between the Appellant and the Worker. Under that contract, the
Worker was required to be paid $17.00 per hour for billable
hours, which I understood to be hours for which the Appellant was
able to bill the MD for grader work done under Clause 26 of its
contract with the MD. She said this was calculated as 25% of the
$68.00 per hour, the hourly rate of the contract with the MD. It
is not written as a percentage in the Worker's contract, simply
an hourly amount. Nonetheless, it was tied to the amount which
the Appellant could charge the MD. In addition, the Worker was to
be paid at the same hourly rate for non-billable work up to 10
hours per month, which had nothing to do with the MD
whatsoever.
[27]
The contract with the Worker was with him in
his trade name of "Triple T Ventures". He had a GST number and
charged GST. The contract required him to provide grading
contract services to the Appellant on equipment provided by the
Appellant, but to be maintained by the Worker. The Appellant was
to provide fuel and oil at its own cost.
[28]
The Worker provided an account for his
services which included billable hours to the MD, as well as
other hours. He completed MD forms in this respect, which the
Appellant passed on to the MD. The Worker was paid by the
Appellant, who in turn billed and was paid by the MD.
[29]
In practice, the MD Field Supervisor, out of
convenience, contacted the Worker directly, but if unable to
reach him would contact the Appellant who would be responsible to
get the Worker to the job or have another operator working on the
grader. Thus, the evidence revealed that the link was always back
to the Appellant from the MD. In this respect, in practice, the
Worker received his instructions from the MD (assumption 9(g) and
9(h)), but strictly speaking, the control came through the
Appellant who had the legal responsibility to provide the service
at the behest of the official from the MD. It subrogated,
in practice, its right to control the Worker and assign the
Worker to the representative of the MD, but in law retained that
right and responsibility.
[30]
The assumptions of fact made by the Minister
were not greatly challenged by the witness, except to the extent
that I have outlined above. To the greatest extent, those
differences are contained in the contracts themselves and are
matters of interpretation.
[31]
I found Mrs. Hayes to be an honest witness and
I have no difficulty in accepting her evidence and I do accept
it, such as it was. In some total, she said that the corporation
submitted tenders to obtain their contracts and then put men and
machines in the field to carry out the work contracted to be
done. More often than not, it seems the Appellant used regular
employees. In the situation at hand, it used the Worker as an
independent contractor, but the nature the service provided was
no different. Mrs. Hayes maintained that the Appellant was in the
business of providing services, not providing personnel to
clients. It was clear from her evidence that the Appellant went
out and looked for work. It established a clientele in this
respect. She said it did not keep a list of job placements and go
out and find people to fill them. It took on the work itself and
was responsible to carry out the work. I accept her evidence in
this respect.
Conclusion
[32]
There are really two issues in this appeal.
The first involves deciding whether or not as a mixed question of
fact and law, the Appellant was acting as a "placement or
employment agency". If it was not, the matter ends there. If it
was, there are two aspects to the second issue, namely whether in
the case of the EI Act, the worker was placed in the
employment (read work) to perform services "for and under the
direction and control of a client ...", and in the case of
the CP Plan, whether "the terms and conditions on which
the employment and services are performed ... constitute a
contract of service ..." or are analogous
thereto.
[33]
With respect to the first issue, a number of
the reported cases put before the Court can be distinguished as
in those it was not in issue that the Appellant was set up as a
placement agency. In those cases, that fact was clearly
accepted.
[34]
In Bartimaeus (above), the learned
Judge clearly held that:
The company is set up
as broker services between private practitioners in the child and
youth field and social services.
And
...is in fact a
placement or employment agency as required by this
paragraph.
[35]
Clearly, in that case the Appellant simply
contracted to provide people and did not undertake responsibility
to provide the service itself.
[36]
In the Isomeric case (above), the
learned Judge found:
... the
president of the appellant, admitted that the appellant is a
placement or employment agency; ...
The Judge went on to
consider direction and control issues and whether or not
independent contracts for services could be covered in such
situations. Clearly, the finding was that they can be.
[37]
Similarly, the decision of the Honourable
Judge Watson, upheld by the Federal Court of Appeal in the
Silverside cases (above) clearly held:
... in fact was an
organization "engaged in matching requests for work with
requests for workers".
Judge Watson went on to
consider also the question of control, which is the second
issue.
[38]
I am satisfied on the evidence before me that
the Appellant was not in fact or law an employment or placement
agency in the normal sense of that word or in the sense of the
CPP Regulation. It was not engaged in the business
of placing individuals in employment orperformance
of services or of securing employment for
individuals for a fee or reward or other remuneration. Its
business was the provision of services themselves in the field of
road building and maintenance. It sought out contracts for work.
It had a responsibility to meet the terms of these contracts and
provide the service for which it contracted. In doing so, it
oftimes hired regular employees and at other times engaged
independent contracts to carry on the work. But it was the work
itself which it contracted to undertake, not simply to provide
personnel to the MD for some fee or reward. If the Worker in
question became unavailable, it had an ongoing legal
responsibility to continue to provide the service. That, it seems
to me, is the essential difference. I see no difference here from
a subcontractor operating on a building site who places either
employees or subcontractors onto the site to carry out the work.
That does not make that subcontractor an employment or placement
agency. The subcontractor is committed to provide the services to
the owner or general contractor to do the construction work in
question in accordance with the provisions of the
contract.
[39]
As I have said in the case of Dataco
Utility Services Ltd. v. M.N.R. 2000-4444(EI) and
2000-4445(CPP):
... Clearly, the
contract in each case is a contract for services with an
independent contractor, the Appellant. Whether the Appellant was
to use its own employees or further subcontract with other
independent contractors by way of contracts for services, was
clearly of no concern to the Utility Companies. Whilst the latter
had certain policies, procedures and standards which it required
the Appellant's personnel to adopt in the performance of their
duties, that was by way of contract with the Appellant. That
point should not be overlooked. The personnel used by the
Appellant to provide the services were not required to report to
the Utility Companies in order to take directions from them.
Those personnel, whether they were employees or subcontractors
with the Appellant, were required to follow the directions given
to them by the Appellant to provide the services which they had
contracted to provide for the Appellant, in accordance with the
conditions that the Appellant had accepted in the master
contracts with the Utility Companies. I do not see that they were
in any way under the direction and control of the Utility
Companies. The only right to control, held by the Utility
Companies, came by virtue of their contract with the Appellant.
The fact that the master contracts called for certain things to
be done in certain ways, at certain times and allowed the Utility
Companies a veto (so to speak) over any particular individual
performing that service, did not transform the basic nature of
the contract from a contract for services into a placement of
personnel under the direction and control of the Utility
Companies by a placement agency. The workers' commitment was
very much established by their contracts with the Appellant
(Exhibit A-3), not anything flowing to them directly from the
Utility Companies. The Appellant in turn was obligated to meet
its commitments to the Utility Companies. Thus, those
requirements were part and parcel of the contracts themselves in
both cases.
[40]
As was said by Mr. Justice Létourneau
in the Vulcain Alarme case (above), a contractor who, for
example, works on a site as a subcontractor does not serve his
customers but those of the Payor. The MD in the case at hand was
the client/customer of the Appellant. The Appellant contracted
with its customer to provide the service required. The MD did not
become the customer of the Worker. There was no privity of
contract between them and no direct working relationship, other
than as a matter of convenience. This is totally different from
the situation which would exist if the contract between the MD
and the Appellant simply called for one or more persons to be
provided who would then attend upon the MD, receive all their
directions from the MD and provide the service directly to it.
The latter situation whereby the Appellant would not be required
to provide any service itself, but just personnel, would be
clearly four-square within the ambit of the
Regulations.
[41]
The question of direction and control of the
work by the MD does not arise as part of the consideration of
whether or not the Appellant is an employment or placement
agency. That question only arises as part of the second issue and
the two issues should not be confused. I glean that they had in
fact been confused by the Minister in this case.
[42]
Having come to the conclusion that the
Appellant is not in fact or law a "placement or employment
agency", there is not any need to go any further. Nonetheless,
out of an abundance of caution, I express the view that in fact
the Worker was not under the direction and control of the MD, nor
did it perform services for the MD. He was clearly engaged to
provide a service to the Appellant to enable the latter to carry
out its contractual obligation to the MD. He was no more placed
under the direction and control of the MD than if he had been a
subcontractor on a building site on which the Appellant was a
general contractor and the Municipal District the owner. The
contract between the MD and the Appellant clearly held the latter
responsible for their own employees and agents. The requirements
passed on to the Worker was simply requirements that the MD had
of the Appellant by virtue of its contract with the
Appellant.
[43]
At the end of the day, in answer to the
question "was the Appellant in the business of providing
personnel to the MD or was it providing a service to the MD", the
answer is clearly that it was providing a service. The situation
relating to the Worker was not covered by the respective
Regulations. He was not in either insurable or pensionable
employment.
[44]
The appeals are allowed and the decisions of
the Minister are reversed accordingly.
Signed at
Calgary, Alberta, this 24th day of August 2001.
D.J.T.C.C.COURT FILE
NO.:
2000-4907(EI)
STYLE OF
CAUSE:
Supreme Tractor Services Ltd. and M.N.R.
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
May 15, 2001
REASONS FOR
JUDGMENT BY: The Honourable Deputy
Judge
Michael H. Porter
DATE OF
JUDGMENT:
August 24, 2001
APPEARANCES:
Counsel for
the Appellant: David R. Abbey
Counsel for
the
Respondent:
Mark Heseltine
COUNSEL OF
RECORD:
For the
Appellant:
Name:
David R. Abbey
Firm:
David R. Abbey Professional Corporation
Edmonton, Alberta
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE
NO.:
2000-4909(CPP)
STYLE OF
CAUSE:
Supreme Tractor Services Ltd. and M.N.R.
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
May 15, 2001
REASONS FOR
JUDGMENT BY: The Honourable Deputy
Judge
Michael H. Porter
DATE OF
JUDGMENT:
August 24, 2001
APPEARANCES:
Counsel for
the Appellant: David R. Abbey
Counsel for
the
Respondent:
Mark Heseltine
COUNSEL OF
RECORD:
For the
Appellant:
Name:
David R. Abbey
Firm:
David R. Abbey Professional Corporation
Edmonton, Alberta
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4907(EI)
BETWEEN:
SUPREME
TRACTOR SERVICES LTD.,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeal heard
on common evidence with the appeal of Supreme Tractor Services
Ltd. (2000-4909(CPP)) on May 15, 2001 at Edmonton, Alberta,
by
the
Honourable Deputy Judge Michael H. Porter
Appearances
Counsel for
the
Appellant:
David R. Abbey
Counsel for
the
Respondent:
Mark Heseltine
JUDGMENT
The appeal is allowed and the decision of the Minister is varied
in accordance with the attached Reasons for Judgment.
Signed at
Calgary, Alberta, this 24th day of August 2001.
D.J.T.C.C.
2000-4909(CPP)
BETWEEN:
SUPREME
TRACTOR SERVICES LTD.,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeal heard
on common evidence with the appeal of Supreme Tractor Services
Ltd. (2000-4907(EI)) on May 15, 2001 at Edmonton, Alberta,
by
the
Honourable Deputy Judge Michael H. Porter
Appearances
Counsel for
the
Appellant:
David R. Abbey
Counsel for
the
Respondent:
Mark Heseltine
JUDGMENT
The appeal is allowed and the decision of the Minister is varied
in accordance with the attached Reasons for Judgment.
Signed at
Calgary, Alberta, this 24th day of August 2001.
D.J.T.C.C.
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