Flash Courier Services Inc. v. M.N.R., docket 1999-2239-EI

Date: 29990414

Dockets: 1999-2239-EI; 1999-2240-CPP

BETWEEN:

FLASH COURIER SERVICES INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

FENTON PAUL,

Intervenor.

Reasons for Judgment

Rowe, D.J.T.C.C.

[1] The appellant, Flash Courier Services Inc. ("Flash") appealed from a decision of the Minister of National Revenue (the "Minister)" dated January 29, 1999 that the intervenor - Fenton Paul - was in insurable and pensionable employment with the corporation during the period January 17, 1996 [sic] to June 26, 1998 on the basis the intervenor was employed pursuant to a contract of service. The decision was issued pursuant to subsection 93(3) of the Employment Insurance Act (EI Act) and subsection 27.2(3) of the Canada Pension Plan (CPP). The decision issued pursuant to the Canada Pension Plan resulted in the appellant filing an appeal - 1999-2240(CPP) - in which Fenton Paul also intervened. All parties agreed the result in the said CPP appeal would follow the decision in the within EI appeal.

[2] Counsel for the appellant referred to the Reply to Notice of Appeal in which the respondent admitted, inter alia, the following relevant facts:

"1. Flash Courier Services Inc. is and was a British Columbia company;

2. Flash Courier Services Inc. was generally responsible for the same day pick-up and delivery of envelopes and parcels in the lower mainland area of British Columbia;

3. the signage on the vehicle, identifying it as delivering for Flash, was required by the B.C. Motor Carrier Commission and by the Municipal Government. Each owner/operator obtained his/her own plate from the municipality. Then, the Motor Carrier Commission required that the owner/operator put his or her name on the vehicle with the designation "o/o" (standing for "owner/operator") as well as the name of the company (ies) for which that owner/operator was driving;

4. Mr. Fenton Paul received for services provided a percentage of the revenu ehe generated, being a commission of 65% of the gross revenue he generated on a semi-monthly basis;"

[3] Erik Bjorklund testified he is the President and, during the relevant period, was the sole shareholder of Flash Courier Services Inc. Flash operates a same-day courier service specializing in deliveries throughout Vancouver, the Lower Mainland and Fraser Valley by means of contractual arrangements with persons he described as owner/operators acting as independent contractors while Flash acted as a broker. Fenton Paul owned a Toyota cargo van which he used to make deliveries in accordance with the contract between himself and Flash. He was responsible for all expenses associated with the operation of that vehicle, including licensing, repairs and insurance. In the event the vehicle was unavailable for making deliveries, then it was Paul's responsibility to locate another vehicle even by renting one, if necessary. The various delivery vehicles used by the owner/operators were not painted any particular colour. Bjorklund stated because Paul had a cargo van, it gave him added flexibility to haul a greater variety of loads including larger, heavier parcels. Bjorklund referred to an Owner's Certificate of Insurance and Vehicle License - Exhibit A-1 - issued by the Insurance Corporation of British Columbia to Fenton Paul pertaining to the Toyota cargo van. Flash required proof of insurance covering the use of the van as a delivery vehicle with commercial license plates having been issued pursuant to provincial legislation, the Motor Vehicle Act or Commercial Transport Act. Fenton also had his own personal insurance coverage with the Workers' Compensation Board (WCB) and selected coverage in the minimum amount permissible - $1,000.00 per month - as income replacement in the event of injury sustained while in the course of working. The premium - ranging from 5-7% - was based on the amount of income protected and on the claim history of the insured. The policy applications - Exhibit A-2 - were completed by Paul on the basis he was an employer who owned and operated his own business. The only driver's license required was within the class issued for operation of an ordinary passenger vehicle. The insurance coverage required there be one principal operator and any substitute drivers - properly licensed - would be included in the policy. Bjorklund referred to a term: load direction - used in the industry to describe the delivery of goods along a designated corridor. Bjorklund referred to a contract - Exhibit A-3 - between Paul and Flash dated January 14, 1997. Paul was an experienced courier and, in recognition of his proven ability, Flash agreed to pay him 65% of his total delivery receipts. This rate was higher than that paid to some other couriers under contract to Flash. Bjorklund explained that Paul had originally functioned as an "open courier" which involved taking such deliveries as were available. Later, he worked certain load directions and then settled on the Fraser Valley. The hours of work - to a large extent - were dictated by the nature of the business which required timely response to meet the demands of customers. Flash opened for business at 8:00 a.m. and customers began calling in and requesting service. By 8:00 a.m., Flash was beginning to contact the owner/operators via radio to advise of the availability of certain parcels to be delivered. While there was no formal need for any driver/courier to apply for permission to take time off and no actual company policy in that regard, Flash preferred to know as far in advance as possible if someone was not going to show up on a certain day or for a longer period of time. During the actual period in issue, commencing January 17, 1997 (not January 17, 1996 as stated in the decision of the Minister) until June 26, 1998, Flash had more owner/operators than needed and the surplus was to ensure Flash maintained the capacity to meet customer demands for same-day delivery. Early on in his relationship with Flash, Paul had advised he needed to be home each day at 6:00 p.m. in order to fulfil his child care responsibilities. Paul had responded to an newspaper advertisement - placed by Flash - indicating it was looking for people to make deliveries on the basis of being independent contractors. In the contract - Exhibit A-3 - there was a restrictive covenant at clause 1(b) preventing the contractor from competing against Flash by starting his or her own courier service by proprietorship, partnership or corporate body in a geographic area within a radius of six miles of the company headquarters in Vancouver for a period of two years following termination of the relationship with Flash. Bjorklund stated the covenant was necessary in order to prevent owner/operators gaining experience by observing the Flash organizational set-up, having access to the client base, and then using that information to start their own delivery business. Pursuant to the contract, there was an office fee of $90.00 per month charged to Paul in order to cover costs of administration pertaining to the revenue generated from his deliveries. A particular owner/operator could receive a higher percentage of delivery revenue by having tools such as handcarts, pallet jacks, phone books, current city maps and a ramp. In the event any of these items were lost, Flash had some equipment available which could be used by a driver. The initial rate for delivery was established during the telephone conversation with a customer, based on the information provided. However, if it turned out there were more parcels than stated or they were heavier than indicated by the customer, then the courier would note the correct weight and number of items on a sheet and Flash would bill the customer the extra fee based on the new information. The standards governing the motor vehicles used by couriers were set by regulatory governmental bodies acting pursuant to provincial legislation. The only form of discipline in relation to a courier flowed from the terms of the contract. On occasion, some owner/operators delivered for other delivery companies and they could also hire other licensed drivers to carry out the deliveries made available to them through Flash. The majority of deliveries were charged to an account but there were some cash deliveries and the drivers would collect the appropriate fee and then account to Flash for its appropriate share as stated in the relevant contract. The accounting was done daily by Flash and payment to the drivers was made every two weeks. Bjorklund stated a driver - like Paul - with a larger-capacity cargo van had access to larger loads and by operating the vehicle in an efficient manner could reduce costs. The owner/operators were responsible for damage to goods caused in the course of delivery. Driver/couriers operating along a certain load direction came to know the people along that corridor and could solicit business from them. Paul negotiated with Flash to obtain the Fraser Valley load direction and was protective of his territory. Flash had office employees but all driver/couriers were owner/operators and some carried on business by means of a corporation. Flash charged Goods and Services Tax (GST) to a customer but the owner/operators were not affected by any GST implications because they were merely a carrier and not the end user. Bjorklund stated there were occasions upon which delivery volume in a certain area would be reduced and Flash would retain the services of another courier company to perform the delivery even though by following that procedure Flash might lose money. However, it preserved the relationship with a customer and maintained the presence of Flash in the area. Bjorklund stated the services of Paul were terminated on the basis he had been in breach of the contract with Flash.

[4] In cross-examination by counsel for the respondent, Bjorklund stated Flash had placed an advertisement in the "Couriers and Drivers" section of the newspaper. The form entitled Application for Employment - Exhibit R-1 - was completed by Paul. Bjorklund explained the form was mainly used in order to discover if an applicant could write and also to obtain relevant personal information. Flash considered matters of experience and the type of vehicle to be used in recognition of the high attrition rate within the industry. Paul's previous experience as a courier and the fact he owned a cargo van motivated Flash into agreeing to pay him a commission based on 65% of his delivery revenue. In Bjorklund's opinion, that was in accordance with industry standards. The cheques for the owner/operators' share were issued on the 1st and 16th of every month. Although Paul came to Flash as a fully trained driver/courier, he probably spent a morning with one of the senior drivers in order to be familiarized with the operation. The drivers were not required to be at the Flash office at 8:00 a.m. but deliveries were assigned to those who were available and, if the usual person did not attend in time, then another driver might take over the load direction. Bjorklund stated he had no particular recollection of having spoken to Paul about being late but the Fraser Valley load direction required deliveries to be made by noon. Flash offered five levels of service based on delivery time. Paul was not required to contact the Flash dispatcher prior to heading home at the end of a day. The policy at Flash was that as long as an owner/operator satisfied delivery requirements - set by the customer - they could quit for the day. The reason Paul's contract with Flash was terminated was that he had been given some deliveries - including parcels for Chiliwack, British Columbia - but Bjorklund later discovered Paul had left three items behind in the Flash premises and had not complied with the terms of his obligation. The driver/couriers wore identification badges and a jacket and shirt with a logo and display of the name "Flash Courier" mainly to prevent someone from monitoring a radio transmission directing a courier to make a pick-up and then arriving ahead of the Flash courier, in order to illegally intercept the package. Deliveries were ordered by customers in a variety of ways, including walk-in, over the telephone or by fax and Flash had salespeople hired to generate new business. When orders were received, the computer software at Flash apportioned the required trips among the owner/operators in accordance with load direction. During the relevant period, Flash had contracts with between 50 and 75 owner/operators acting as driver/couriers by means of operating their own motor vehicles and another 10-15 couriers using bicycles. Prices for delivery of items were set during negotiations between a customer and Flash sales personnel. Flash would also pay a sales commission to any owner/operator who brought in a client as a result of their own efforts or contacts. On occasion, a friend or spouse of an owner/operator would be employed at a business or firm having substantial daily delivery needs and, if the business was searching for better services or lower rates, a proposal could be made to obtain the work for Flash. Any driver could use a privately-owned radio provided it was compatible with the Flash system. Typically, Flash provided the radio and included any amount for its use as part of the overall administration fee which was initially in the sum of $90.00 but later reduced to $50.00. As part of the accounting process, each courier would make entries in a manifest which was handed in to the office at Flash the day following the deliveries. During the day, the most successful drivers called into the dispatcher every two or three deliveries in order to see if any additional work was available and to advise that a delivery had been completed. The expertise of dispatchers is demonstrated by the manner in which they worked with the drivers and in assessing the capabilities of various couriers and acting, in effect, as the quarterback of the delivery team. The telephone calls stream in to the office and are passed on to the dispatcher who keeps track of the location of a large number of delivery vehicles heading off in several directions. Some of the vehicles may be fully loaded and unable to handle another item, requiring the dispatcher to locate another courier to handle the delivery. Any substitute drivers have to be properly licensed and qualified to do the work. The drivers - among themselves - are well able to judge qualifications needed to perform the task properly. The drivers are not actually bonded but must be bondable in the sense of not having a criminal record. Bjorklund agreed there would not usually be much of a profit margin so as to permit the hiring of a replacement driver and, in recognition of this factor, Flash had the capacity to assign a load to another owner/operator standing by to accept new deliveries. Bjorklund was referred to a form entitled: Time Off/Holiday Request (Exhibit R-2). He stated there were no real restrictions on drivers taking time off but the form was mostly used by Flash as it pertained to the office staff. He was unaware whether or not Paul had ever completed such a form and submitted it to Flash. Usually, drivers merely notified someone at Flash that they would be taking time off and did not fill out any form or other written request. While there was a method in place of keeping track of verbal requests for time off, one advantage of having written notice was that it enabled Flash to deal with the fluctuating availability of couriers on a given day. In Bjorklund's opinion, it was a badly designed form and should not have been used for any absences by owner/operators. In response to a question from counsel concerning tools, Bjorklund replied that some couriers had clipboards and other small pieces of equipment. The billing and delivery records were processed by Flash office staff. He was aware some drivers maintained an office in their own residence for the purpose of carrying out certain matters related to the delivery business. In the event there were changes in relation to a delivery, the courier involved would provide the amendments to Flash as they related to weight, size and/or waiting time and this information would be used to vary the rate charged. The drivers had a method of sharing commissions. By way of example, Bjorklund explained a bicycle courier might pick up an item and a driver/courier would then deliver it. The bike courier would receive $1.00 for his or her efforts. On other occasions, one courier might pick up a parcel and take it to the Flash depot where it would remain overnight and - in the morning - be delivered by another courier. The cargo insurance was paid for by Flash pursuant to a policy taken out by the company. Bjorklund stated the WCB suggested the mailing address of the Flash office be used to receive premium notices sent out to individual driver/couriers as a method of ensuring their premiums would be kept up-to-date, thereby avoiding any hiatus in coverage. This method applied to the intervenor - Fenton Paul - and the relevant amount of the WCB premiums were deducted from one of his cheques. Other drivers looked after their own WCB coverage and the notices were mailed directly to them. Flash was concerned about each driver maintaining proper coverage as Flash could have some exposure to liability in the event there was an injury and the courier had allowed coverage to lapse.

[5] In re-examination, Bjorklund stated WCB had since established a system whereby Flash could use the telephone to verify the status of an account of a particular driver to ensure the premiums had been paid. He was referred to the application for employment - Exhibit A-4 - of Fenton Paul in the form of a letter attaching his résumé. In the letter, Paul referred to being a highly motivated driver and having "a high degree of sales and marketing knowledge". The letter began with Paul writing, "I am seeking employment with your organization...". Bjorklund stated he was aware Paul had worked at Corporate Couriers and Swift Dispatch Service on the basis of owning his own vehicle and working as an independent contractor.

[6] In cross-examination by the intervenor - Fenton Paul - Bjorklund agreed the information provided as work history was basically the same as that requested on the first page of the Employment Application Form - Exhibit A-4. The proof of vehicle insurance - Exhibit A-1 - was provided when the contract - Exhibit A-3 - was signed. Bjorklund stated Paul had a load direction - assigned to only 15% of the drivers - and he was unaware whether or not a load direction produced more revenue. Bjorklund's understanding was that Paul had originally driven a load direction from Richmond to Coquitlam and then began delivering - in mid-March, 1997 - along the Fraser Valley corridor. Each delivery vehicle had a Flash Courier sign on it. Bjorklund explained the delivery process, beginning with a call from a customer to the call-taker at Flash during which details are taken, including the site of pick-up and/or delivery, size, weight and number of parcels. In the event drivers suspected the packages might be heavier than indicated by the customer, they were encouraged to use the ordinary bathroom scales - carried in the vehicle - to weigh the parcels and, if necessary, to correct the weight on the manifest. The initial delivery rate included items weighing up to 25 pounds, after which there was an additional charge per pound. Bjorklund stated the form relating to Flash consenting to a driver being absent was not strictly adhered to in practice. Flash owned the portable two-way radio used by Paul and, if he wanted to do so, it could have been easily attached inside the van by using a couple of screws. The shirts bearing the Flash logo - together with the radios - were provided by Flash as part of the $90.00 (later reduced to $50.00) administration fee. The fee also included a corporate identification card, motor carrier plate and manifest sheets. Flash had never made any claim pursuant to the cargo insurance policy so Bjorklund was unaware of specific details of the coverage. With respect to replacing a driver who wanted time off, that was not the concern of Flash. Instead, the driver could find a properly licensed person to operate the vehicle and perform the deliveries. If the driver's regular vehicle was not available, then that person was required to use another vehicle even if it required renting one. Any substitute driver would need a photo identification card but could use the regular driver's portable radio. The replacement would also need to have WCB coverage or be satisfied that the policy of the regular driver was sufficient to take into account the substitute should a claim arise. Bjorklund stated he was not aware if Paul had ever used a replacement driver. He agreed the contract with Paul was for an indefinite period. Any driver could take a break from his or her deliveries without notifying the dispatcher. A driver obtained deliveries as a result of staying in contact with the dispatcher and Flash had a depot to store parcels overnight for delivery the next day. A dispatcher had the right not to assign a delivery to a particular driver requesting additional work if he or she thought the driver could not meet the delivery deadline set for a particular parcel. Flash had an advertisement in the Yellow Pages and was listed as a courier business. It advertised a capability to handle local, national and international deliveries but indicated it specialized in making deliveries within the geographic area known as the Lower Mainland. Bjorklund stated he was not aware whether Paul had found any new customers along his route but the Fraser Valley load direction handled by Paul was the result of negotiations between Flash and him. Bjorklund explained that the rates are very tight - from a competitive standpoint - and it is more efficient to have one driver - rather than six - heading out to the Langley area. While some drivers had WCB assessments and related correspondence sent directly to their homes, Paul's quarterly WCB assessment was sent to the Flash office. The premium - based on the $1,000.00 per month income replacement coverage chosen by him - was paid by Flash and the proper form was completed and returned to the WCB. The amount so paid was then deducted from the next cheque issued by Flash to Paul pertaining to his deliveries for the preceding period. Generally, drivers with vans capable of handling different loads, earned higher commissions than those operating ordinary passenger cars. The Flash fleet of couriers was sufficiently large that it was capable of operating efficiently even though 8 to 10 drivers could be absent on a particular day. The remaining couriers might have to work harder to pick up the slack and, rarely, Flash might have to arrange for another courier company to make some deliveries. Flash had 800 active accounts - some very large - although there were no long-term contracts with customers and the relationship proceeded on a day-to-day basis. The loss of a large account could reduce revenue by as much as 35% which would then affect the drivers who had been sharing - as a group - between 60 and 65% of that amount. In the regular course of undertaking deliveries, Bjorklund stated drivers had the right to refuse a financially unproductive trip. He agreed Paul had not been given two weeks notice - as called for in at page 2 of the contract - Exhibit A-3 - when the contract was terminated by Flash.

[7] Fenton Paul testified he saw an advertisement in a Vancouver newspaper seeking a courier. He had previously worked for two courier companies and had used his Toyota cargo van in the course of making deliveries. The advantage of owning a cargo van was that he could carry more freight and earn greater revenue. He provided a résumé to Flash and was hired. He signed the contract (referred to earlier) but held the opinion there were additional factors to consider in terms of his working relationship with Flash. From his standpoint, he believed he had not been able to take time off without the consent of Flash. He also considered it a requirement that he attend at the Flash office before 8:00 a.m. in order to complete the deliveries which were due by noon. He would sit in his van near the Flash office and wait to be called by the on-duty dispatcher offering trips to various locations. In his experience, an inefficient or uncooperative dispatcher can adversely affect the income of a driver. Fenton Paul stated he drove to the Fraser Valley on a regular basis and also handled trips to other locations but all deliveries were time-sensitive. Once he had arrived at Langley and the deliveries had been made, he would wait for calls from the dispatcher in order to obtain work during the return trip to Vancouver. He was a single parent responsible for the care of two young children and preferred to be home each night by 6:00 p.m. but was able to have his sister stand by in the event he needed additional time to complete his deliveries. The volume of parcels varied and one dispatcher would give him pick-ups along the delivery route in order to save time. Sometimes, if a parcel was a low-profit item, a driver would drop off a package at the Flash office for overnight storage and another driver would deliver it the following day. Paul stated, "sometimes it is better to pass one (a delivery) up instead of going out to Chiliwack and back for $15.00 as it would cost you more than that in gas and time". In this case, the dispatcher would find someone else to take the trip, especially if it was an overnight delivery without the burden of a pressing deadline. Paul could not recall whether or not he had taken any time off during his working relationship with Flash. Apart from his cargo van, he also owned a 2 (convertible to 4) wheel dolly, mapbook, pens, and pencils. He paid all expenses relating to the operation of his 1989 Toyota van. It had an efficient four-cylinder engine and offered up a low incidence of repair having gone more than 200,000 kilometres without much more than regular maintenance. He had to obtain a commercial permit which was placed on the front of the vehicle, allowing him to park in a commercial zone while making a delivery. If he received any parking tickets, they were his responsibility. On the cargo van, he was required to display two Flash Courier stick-on signs but his own name as the vehicle owner did not appear. Paul displayed a series of photographs - Exhibit I-1 - depicting a van (not his own) and a passenger car with Flash signs affixed to some portion of the vehicle. The photographs also show the commercial plate on the front of the vehicle but there are no names of owner/operators appearing on the vehicles. In addition, there were photographs of a blue jacket with red stripe displaying the Flash Courier logo. Flash drivers also wore a shirt with the company logo and generally wore dark trousers selected from their own personal wardrobe. The drivers used compact cars, mini-vans and cargo vans to make deliveries. Because he owned a cargo van, he was able to carry larger loads with a more flexible delivery-time window than an ordinary car and this tended to make a load more profitable for him. There were usually three dispatchers working at the same time at the Flash office on Homer Street in Vancouver. If he discovered a customer had provided inaccurate information upon which the delivery price had been based, he would attempt to have the customer acknowledge the increased weight by signing an amendment to the manifest which he would then hand in to Flash for adjustment to the billing and he would receive 65% of the increased amount. While packages were inside his van, Flash insurance covered any damage or loss. Prior to working at Flash, he had obtained a National Safety Code certification for his vehicle and had taken out coverage with the WCB. He arranged to have his assessments and premium notices sent to the Flash office. He had chosen the minimum coverage of $1,000.00 per month in order to reduce the premium cost. The issue of a replacement driver never arose but he would have filled out a request form had he wanted to take time off. In his opinion, it was not practical to generate additional revenue through use of the van because it had Flash signs on it and he wore a Flash uniform. The portable radio was set to the frequency used by Flash. It was normal within the courier industry for couriers to wear a logo on a shirt and/or jacket and to carry a photo identification card. One of the reasons for the uniforms and ID card was to reassure the customer that the person responding to their call was actually from Flash, the entity from whom the pick-up or delivery had been requested. Paul stated he carried bills of lading and wrote them up, as required, and also carried a receipt book to acknowledge cash payments. If he picked up a parcel for delivery he would notify the dispatcher and when he headed out on his run would report in to confirm that all deliveries within a certain area had been completed. A driver could use a certain amount of discretion in determining the order in which deliveries would be made but a dispatcher could direct a driver to go to a specific location - immediately - in order to respond to the demands of a customer. Paul indicated the dispatchers soon recognized the abilities of a particular driver. Between January 17, 1997 and June 26, 1998 he reported the income earned at Flash on the basis of being self-employed and had recorded all of the expenses relating to the costs of his vehicle. In addition, he had retained receipts for other work-related expenses such as a cell phone. He deducted all of these amounts from his income.

[8] In cross-examination by counsel for the appellant, Paul agreed he had signed the contract - Exhibit A-3 - and that no deductions had ever been taken off his pay for income tax, premiums or contributions relating to Employment Insurance or Canada Pension Plan. The situation had been basically the same while working for two other courier companies. When he filed his income tax return for the 1997 taxation year, his tax preparer used the receipts for all vehicle expenses and also calculated capital cost allowance to form the basis of deductions against income. This method of filing was the same as when he had earned income at Corporate Couriers where he had earned a certain percentage of revenue from deliveries and the same procedure had been followed when he was at Swift Dispatch Service. He agreed his load direction seemed to be towards Cloverdale and Langley and acknowledged the attempts of Flash dispatchers to give him priority with respect to trips within that corridor. Paul thought Bjorklund's estimate that only 15% of drivers had a specific load direction was accurate. While the Toyota cargo van could carry larger loads, the small cars used by some drivers were quicker in downtown Vancouver. When he was working at Corporate Couriers, Paul stated he thought WCB had written to him at his residential address concerning his account but when he began working at Flash he changed the billing address to the Flash office. While at Swift Dispatch Service, he may have had a pick-up truck instead of the Toyota van but he never had more than one vehicle at the same time. He considered the role of a dispatcher was to receive information from the call-taker and then decide how to deliver that parcel to the desired destination within the time frame set by the customer. As a result, it has happened that some other drivers took trips that should have been assigned to him. On occasion, he was able to cooperate with other drivers in order to get a parcel to its final destination. Usually, the driver concluding the delivery received the commission but a dispatcher could be requested to divide a commission between two drivers. Paul stated he had to be assertive because he had to feed his two children. He paid for his own insurance coverage on the van and there was very little personal use of the vehicle. However, he drove between 200 and 400 kilometres per day in the course of making pick-ups and deliveries. When he applied for personal income protection from the WCB - Exhibit A-2 - the business was described as: courier. On the application, he is described as an owner/operator and he agrees the box marked Proprietor had been checked off by someone in describing the nature of the business which provided the revenue being protected to the extent of the chosen coverage. In Paul's opinion, the uniform comprised of a jacket and shirt with the Flash logo was not really necessary and the photo-ID card would have been sufficient. There were no posted notices regarding starting times for work or any written rules or policies of Flash pertaining to the driver/couriers.

[9] In cross-examination by counsel for the respondent, Paul stated his working day began when - each morning - he "booked in" via the two-way radio and then arrived at the Flash office prior to 8:00 a.m. ready to begin taking deliveries. He was late once or twice and there was no comment made by anyone from the Flash management but if it occurred too often he was certain he would have been spoken to about it because most of his trips involved same-day deliveries. He would load up at the Homer Street office and head out for pick-ups and then commence making deliveries. Apart from the two-way radio, he also used his cell telephone to keep in contact with the dispatcher and to advise a delivery had been made within the time deadline. He did not locate any new customers along his route but he was aware Flash paid a bonus for drivers who brought in new business. Once deliveries had been completed for the day, he would notify the dispatcher but, if there were parcels in the van for delivery next day, he would return to the Flash depot where the items would be stored overnight. Paul stated he never knew any driver who had hired a substitute. He agreed an experienced driver can earn more money than another courier having less time in the industry but it sometimes meant breaking a few traffic rules. He did not attempt to foster any personal relationship with any dispatcher in order to augment his flow of work. Paul stated he worked from 7:30 a.m. until nearly 6:00 p.m. five days a week. As a result, there was no real opportunity to carry out any other revenue-generating activity and he has never known any courier to work for more than one company at a time.

[10] In relation to matters arising out of the cross-examination by counsel for the respondent, counsel for the appellant was permitted - on a limited basis - to put some further questions to the intervenor, Fenton Paul. Paul agreed he utilized techniques gained from experience in the courier business and that he attempted to purchase gasoline at or near the lowest prices possible and searched for good prices on tires but - overall - was too busy to do much comparison shopping.

[11] Counsel for the appellant submitted the evidence had established the working relationship between the intervenor and Flash was that of corporation to independent contractor and the fact Paul's services were provided to Flash on an exclusive basis did not transform the arrangement into that of employer-employee. The dispatchers employed by Flash acted in a role similar to air-traffic controllers in order to expedite an efficient system for picking up and delivering packages.

[12] Counsel for the respondent submitted there was a substantial degree of control over the drivers which was borne out by the fact that when Paul refused a certain delivery his services were abruptly terminated. In addition, there was no real opportunity for profit and loss in an entrepreneurial sense.

[13] The intervenor - Fenton Paul - submitted he had no real reason for questioning the true character or nature of the working relationship until it had been terminated. From his viewpoint, he wore a company uniform and had to be at work every day at 8:00 a.m. ready to begin making deliveries assigned by the dispatchers.

[14] In Wiebe Door Services Ltd. v. M.N.R. [1986] 2 C.T.C. 200, the Federal Court of Appeal approved subjecting the evidence to the following tests, with the admonition that the tests be regarded as a four-in-one test with emphasis on the combined force of the whole scheme of operations. The tests are:

1. The Control Test

2. Ownership of Tools

3. Chance of Profit or Risk of Loss

4. The integration test

Control:

[15] The matter of control, in my view, should be regarded in the context of the business or industry of which the working relationship forms a part. It may be the nature of the endeavour requires adherence to a mechanism for the greater good of the participants. In the within appeals, the dispatchers at Flash received information from the call-takers and then used their judgement to assign deliveries to certain couriers based on the current location - and capability - of those drivers to deliver an item within a time limit. The reference to a dispatcher acting as the quarterback of the team or like an air traffic controller - in order to avert chaos - is appropriate. It was reasonable for a driver to contact a dispatcher to advise that time-sensitive deliveries had been made. Then, if there were new items to be picked up in - or near - that area, this could be accomplished without having to return later in the day. The evidence disclosed that after the intervenor had completed his deliveries at the end of his Fraser Valley run, he would contact the dispatcher to determine whether there was work that could be done during the return trip to Vancouver. If someone decides to undertake work that is based on satisfying customer needs and there is a dominant time-compliant component to the activity, then that person requires self-discipline to conform with an existing system in order to contribute to the maintenance of an efficient operation. There was no discipline meted out to drivers who arrived late in the morning or who booked off for some reason. The point is that they were - obviously - not available to make a delivery during such period. There were no posted rules or company policy governing their conduct. The requirement to have the Flash sign affixed to the delivery vehicle was in order to comply with the requirements of the provincial Motor Carrier Act. The Minister admitted in the Reply to Notice of Appeal that the intervenor should have placed his name on his cargo van stating he was the owner/operator of that vehicle. The direction to wear a jacket and shirt with the Flash logo and to carry a photo-identification card were primarily due to security requirements so that it would make it much more difficult for an impostor intercepting a radio message to be handed over a parcel by a customer when he purported to be responding - on behalf of Flash - to the call for delivery service. In the within appeals, there was more control - in the sense of tracking - over the movements of drivers than the situation before me in the case of Information Communication Services (ICS) Inc. and M.N.R., unreported, 97-839(UI) and 97-841(UI) dated December 30, 1998. In the ICS case, the main organization of the company was in Vancouver and the drivers were operating out of Nanaimo - on Vancouver Island - and were basically on their own even to the point of having to attend at the bus depot each morning to collect the items to be delivered and to sort them out into the various routes prior to each driver heading out for the day. There was little or no contact during the day but the route was the same and the customer base was restricted to the finance, insurance and optical industries. It did not accept calls from members of the public or from other types of business. However, the method of interaction between Flash and the drivers was certainly not as rigid and controlling as those found by Judge Sobier, T.C.J. in the case of S & S Investments Ltd. o/a Our Messenger Service v. M.N.R. [1996] T.C.J. No. 1249.

[16] In S & S Investments Ltd., supra, Judge Sobier held that the control over the worker was "great". That individual could not allow other persons to drive and deliver and he had no input into the management of the business. The worker had to follow a detailed timetable and routing and had to report by telephone three times a day and send in daily reports. The control over the worker was so extensive Judge Sobier found, at page 4 of his judgment:

"The Contract, the schedules and the routes set out in minute detail how the work was to be performed down to the requirement that a pen be used on charge slips."

and at page 5 Judge Sobier continued:

"The detailed instructions given by the Appellant to the brokers is a manual for doing the job. One is not only being told what is to be done but how it is to be done. One is told at what time he must perform and where that performance must take place as well as in what sequence that performance is to take place. There is no leeway given to the brokers except to come forth with a proposal for change in the methodology and seek permission of the Appellant to make a change. Even a fifteen-minute departure in timing required permission of the Appellant."

Tools:

[17] In the within appeals, the intervenor owned his own vehicle - a Toyota cargo van - that he had used while working previously for two courier companies. Because it was a larger van, he had the capacity to haul larger and varied loads, thereby generating more revenue than by operating with a mini-van or passenger car. He paid all expenses associated with the operation of the vehicle, including insurance coverage based on the fact the van was being used in the course of a courier business. Paul also paid for the expense of a cell telephone and was not reimbursed by Flash for any of his costs in carrying out the deliveries. He also owned some small items necessary for the business as well as the carts or dollies used in the course of transporting larger items. The only tool owned by Flash was the two-way radio and the notional rent for the use of it was covered by an inclusive monthly administration fee. The configuration of the van and Paul's previous experience in the courier business enabled him to negotiate a higher percentage split of the delivery revenue than usually paid to drivers of other vehicles. In the S & S Investments Ltd., supra, decision, Judge Sobier found the appellant there had entered into a "scheme" to reduce capital expenditures by requiring the driver/brokers to supply the vehicles and related equipment while continuing to pay operating expenses. The company merely added the operating expenses on to the remuneration paid to the drivers and, thereafter, deducted those same expenses leaving them with a basic salary. The only opportunity for profit was in attempting to save some of the operating costs because the structure provided no opportunity at all for the drivers to expand their businesses. This situation is in marked contrast to the one in the within appeals as the intervenor already owned his vehicle and had been using it in the courier business before he entered into any working arrangement with Flash. The evidence of Paul was that he had deducted all vehicle costs, including capital cost allowance, from income generated by him as a driver/courier with other companies.

Chance of Profit or Risk of Loss:

[18] At the outset, due to his ability to operate using the cargo van, the remuneration paid to the intervenor was negotiated on the basis of splitting delivery revenue on a 65-35% basis with him retaining the larger share. He had the opportunity to increase his revenue by ensuring the proper rate was charged to customers when he arrived to pick up the delivery items. If the dimensions, weight or other significant factor impacting on the amount to be charged were not as stated then he made an amendment to the manifest to accord with the facts and obtained his share of the increased revenue. He was able to split a delivery commission with other drivers and could generate additional revenue by being efficient in his deliveries, thereby making himself available for more work. He also could have brought in some business to Flash and would have been remunerated by way of a commission equal to that paid to the regular salespeople. As stated in his evidence, Paul operated the Toyota van because of its low incidence of repair and efficient fuel consumption. By driving carefully, he could maintain a favourable insurance premium and also avoid having to pay traffic or parking tickets. He affected his bottom line in terms of profit by purchasing gasoline at reasonable prices and buying parts at a good price. In the S & S Investments Ltd. case, supra, the drivers suffered a 5% reduction in revenue unilaterally imposed on them by the payor as a means of alleviating the financial difficulties of the enterprise instead of attempting to increase sales.

Integration:

[19] This test is one of the most difficult to apply. At page 206 of his judgment in Wiebe, supra, MacGuigan, J.A. stated:

"Of course, the organization test of Lord Denning and others produces entirely acceptable results when properly applied, that is, when the question of organization or integration is approached from the persona of the "employee" and not from that of the "employer," because it is always too easy from the superior perspective of the larger enterprise to assume that every contributing cause is so arranged purely for the convenience of the larger entity. We must keep in mind that it was with respect to the business of the employee that Lord Wright addressed the question "Whose business is it?

Perhaps the best synthesis found in the authorities is that of Cooke, J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All. E.R. 732 at 738-39:

The observations of Lord Wright, of Denning L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.

There is no escape for the trial judge, when confronted with such a problem, from carefully weighing all of the relevant factors, as outlined by Cooke, J."

[20] In the case of Charbonneau v. Canada (M.N.R.) [1996] F.C.J. No. 1337, Décary, J.A. speaking for the Federal Court of Appeal, stated at page 1:

"The tests laid down by this Court in Wiebe Door Services Ltd. v. M.N.R. - on the one hand, the degree of control, the ownership of the tools of work, the chance of profit and risk of loss, and on the other, integration – are not the ingredients of a magic formula. They are guidelines which it will generally be useful to consider, but not to the point of jeopardizing the ultimate objective of the exercise, which is to determine the overall relationship between the parties. The issue is always, once it has been determined that there is a genuine contract, whether there is a relationship of subordination between the parties such that there is a contract of employment (art. 2085 of the Civil Code of Québec) or, whether there is not, rather, such a degree of autonomy that there is a contract of enterprise or for services (art. 2098 of the Code). In other words, we must not pay so much attention to the trees that we lose sight of the forest – a particularly apt image in this case. The parts must give way to the whole."

[21] In the within appeals, one can say that an outsider observing the intervenor carry out deliveries during the course of a day could reasonably conclude the business was that of Flash. However, that would be as a result of the surface arrangement between the parties. Paul had not installed a sign or otherwise placed information on the side of his vehicle to indicate he was the owner/operator. As discussed earlier, the security requirements were the main reason the intervenor - and other couriers - wore a jacket and/or shirt identiying them as being from Flash. Flash had the facilities to receive calls from customers, dispatch the drivers to make pickups and deliveries, store parcels, and to do all the administration and accounting in order to account for revenue and the proper allocation between Flash and each courier in accordance with the percentage set forth in the particular contract. Without someone delivering the items over an extended period of time, Flash would have difficulty remaining in business but - in the short term - it had a surplus of drivers available on any given day to account for the absence of six to ten couriers and could always retain the services of another courier company to complete deliveries in order to satisfy a customer. When Paul - an experienced courier - came to Flash, he had his own van and equipment and had been operating previously on the basis he was in business for himself as a driver/courier. He had his own WCB coverage based on him being the proprietor of a delivery business. He was completely responsible for the expense side of his income and expense statement. Unfortunately, no one asked Fenton Paul how he had presented himself to third parties when describing his work. He may have responded that he told people he worked for Flash driving a delivery truck. Or, it may be that he usually explained he owned his own vehicle and equipment and had been in the courier business for some time and was now operating under a contract with Flash and had to pay all of his own expenses. The courier industry seems to function on a high degree of consensus not only between the drivers but also in terms of the relationship between the dispatchers - employees of the company - and the couriers both individually and as a group.

[22] In the case of Mayne Nickless Transport Inc. v. Canada (M.N.R.) [1999] T.C.J. No. 132, Porter, D.J.T.C.C. - in a judgment released February 26, 1999 - considered the appeal of a company operating a courier business in Calgary, Alberta. The facts are similar to the ones in the within appeals. At paragraphs 18 to 20, inclusive of his judgment, Judge Porter stated:

"As a general background, I gleaned from the evidence that the drivers owned and operated their own vehicles in the course of their work. They fully maintained their own vehicles. They paid for the insurance, they paid their own gas and for all their own repairs and damage to the vehicles. They received nothing from the Appellant as reimbursement for these expenses. Furthermore, they deducted these expenses from their income on their individual tax returns. The Appellant did not dictate or tell them what vehicles they could or could not use and there was a large divergence of vehicles, from small compacts through mini-vans to trucks, used by the drivers. The only consideration given by the Appellant to the type of vehicle used was in the commission percentage negotiated with the drivers. Those with larger vehicles, which were more expensive to operate, were able to negotiate a slightly higher rate. Apart from that, the drivers were on their own as to the type of vehicle they used and the expenses incurred for running it. They needed no permission to change their vehicle. In addition there were magnetic signs available as well as decals and window stickers advertising the name of the Appellant but according to Rob Ashe none of these were permanent nor were any drivers obligated to put them on their vehicles.

The agreement between the drivers and the Appellant was set up on the basis of the drivers being independent contractors. Clause 2.03 of the contract reads as follows:

2.03 Relationship

Express Airborne (the Principal) and the Owner-Operator hereby acknowledge and agree that this agreement is a contract for services and the Owner-Operator shall for all purposes of this agreement be deemed an independent contractor. This agreement shall not be construed in any respect to create between Express Airborne and the Owner-Operator, a legal relationship of partnership, employer and employee master and servant or principal and agent.

The simple fact that the contract refers to the relationship being one of independent contractors, does not necessarily mean that is so. The Court is clearly not bound by the mere name given to the situation by the parties. The substance of the contract has to be examined and it is the substance not the form which will be the deciding factor. However in the absence of there being clear evidence to the contrary the Court should give due consideration to the expressed intention of the parties."

[23] In the case of The Minister of National Revenue v. Emily Standing, 147 N.R. 238, F.C.A., Stone, J.A. at pages 239-240 stated:

"...There is no foundation in the case law for the proposition that such a relationship may exist merely because the parties choose to describe it to be so regardless of the surrounding circumstances when weighed in the light of the Wiebe Door test."

[24] Returning to the decision of Judge Porter in Mayne Nickless, supra, he reviewed the facts before him and then commenced an analysis - at paragraphs 45 to 49, inclusive, as follows:

"When I consider the control portion of the tests enunciated above, I do not find any great measure of control exercised by the Appellant over the drivers. In fact it seems to me that the drivers had a significant amount of independence to decide whether and when they would work and, if signed on for work, how they carried out their work. Obviously once they signed on with the dispatcher there had to be some rules as otherwise there would be chaos. That seems to me to be no more than an independent sub-contractor coming onto a building site where he would have to liaise and cooperate with the other players on the site. That in itself would not make him any less an independent contractor. In the case at hand the driver could check out when he wanted to; he could take vacation when he wanted to for which he was not paid; once he had his particular assignment he could go about it as he saw fit, picking his own route in his own choice of transport. I see a great deal of independence here and very little supervision. The sole requirement seemed to be that if a driver wanted to check in for the day, he had to do so by 8:00 a.m. so that the dispatcher could work out which drivers were available. Similarly if they wanted to go off either in the day or for a day or more they were expected to notify the dispatcher. However they did not need permission. This part of the tests tends to establish an independent contractor status.

Clearly the tools used by the drivers, were their own. They had to provide their own vehicles and bore all the costs of operating them, without reimbursement from the Appellant. This seems to me to be the biggest single distinction between the various cases cited to me by counsel and the case at hand. The drivers were operating their own vehicles. They also rented two-way radios from the company. These were not just provided to them. They had to pay rent on them which in a sense gave them a proprietary interest in them. The company provided nothing except some decals or signs which they used on a voluntary basis and a uniform which they maintained themselves and was obviously for identification purposes when picking up packages from customers. This aspect of the tests clearly leans towards the independent contractor status.

It seems to me, when it comes to considering the opportunity for making a profit or suffering a loss, there was plenty of scope for these drivers to do either. The evidence was that there was considerable divergence between the amounts made by different drivers. Similarly there was a difference in the types of vehicles used. Their costs of maintenance were also no doubt different, depending on how resourceful they were. The less costs they incurred, the greater the profit they could make. If they were careless in their driving and became involved in an accident they might well sustain a very great loss, depending upon how prudent they had been with their insurance. In my view they endured all the risks and stood to reap all the profits of an independent contractor. I have also not overlooked the fact that they were free to work for other organizations once they booked off and some of them apparently did this. That is all consistent with being in business for themselves.

The fourth aspect of the tests, enunciated by the Federal Court of Appeal, relates to the integration of the work into the business of the Appellant. One has to look at this from the point of view of the driver rather than the company. The question frequently put in these situations is 'whose business is it?'. Here I think it is important to appreciate that there are two different aspects to this business. The courier business operated by the Appellant involves marketing to its customers the service it offers of arranging to pick up transport and deliver cargoes for the customer within the city. Part of what is paid for is the administration and the whole network set up by the company. The business of the individual driver on the other hand, it appears to me, is a transportation business. The driver contracts with the company that at specified times he will provide a transportation service to the company, much the same as a cab driver who might be called in by the company. There is a difference between the courier business and the transportation business. The one encompasses far more than just the pick up and delivery. The other offers simply that. No particular driver forms an integral part of the business of the Appellant. The business of the driver has for its customer the Appellant and others if it chooses, that is to say it is not necessarily exclusively attached to the Appellant. In my view this test also leans far more in the direction of a contract for services than an employment arrangement.

When I consider the method by which the drivers are paid, how they bear all their own expenses, provide their own vehicles to carry out their deliveries, their lack of benefits enjoyed by the full-time employees, their ability to decide when and how they will work, their opportunity to work for other delivery companies whether these be competitors or not, the rental of the radios, the choice of where they arrange their cargo bonds, their choice of whether they use company signs on their vehicles or not, their own marketing efforts with customers at their own expense, I can only come to the conclusion that all this leads to the inalienable conclusion that these drivers including Johannes Van Der Woerd, were engaged by way of a contract for services not a contract of service. There is literally nothing in my view which displaces the clearly expressed intention of the parties in the contract that it be considered a contract for services and not a contract of service."

[25] In the case of Vulcain Alarme Inc. v. Canada (Minister of National Revenue - M.N.R.) [1999] F.C.J. No. 749, the Federal Court of Appeal considered the case of an individual who worked as an inspector of certain toxic substance detectors. At paragraphs 3 and 4 of his judgment, Létourneau, J.A. stated:

"In connection with the control which characterizes master-servant relations in a contract of employment, and thus the relationship of subordination required between the employer and employee, the Tax Court of Canada deputy judge considered inter alia the following facts:

(a) Mr. Blouin, operating under the trade name Service Électronique Enr., had since 1965 done inspection work and the gauging of toxic substance detectors for the plaintiff with the latter's customers and served not his own customers but those of the plaintiff;

(b) Mr. Blouin had to report to the plaintiff's business once a month to get the list of customers requiring service;

(c) Mr. Blouin enjoyed flexible hours but the services had to be provided to the plaintiff's customers within 30 days;

(d) Mr. Blouin was entitled to do work for other businesses, but had to give the plaintiff priority in carrying out the work given to him by the latter;

(e) Mr. Blouin worked exclusively for the plaintiff although he was not subject to such a requirement; and

(f) Mr. Blouin had to submit his time sheets and expense reports to be paid by the hour at a rate determined by the plaintiff, and the plaintiff accordingly exercised control over him through this billing system.

In our opinion, all these points of fact are also consistent with a contract of enterprise. 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."

[26] On the issue of the degree of integration, at paragraphs 13 to 15, inclusive Létourneau, J.A. stated:

"On this point the trial judge relied primarily on the fact that Mr. Blouin had chosen to work exclusively for the plaintiff, that customers' complaints were addressed to the latter and that the service provided to customers was a significant part of the plaintiff's commercial activities (20% of the turnover).

We do not feel that the fact that Service Électronique Enr. and Mr. Blouin chose to perform contracts exclusively for the plaintiff made Mr. Blouin the latter's employee. Undoubtedly, Société Électronique Enr. and Mr. Blouin had by choice become dependent contractors by imposing an economic subordination on themselves. However, they were not legally bound by an exclusive contract and had not ceased to be contractors. Mr. Blouin was not working in the plaintiff's offices or workshops. Further, his comings and goings, his work hours and days were in no way integrated into or coordinated with the plaintiff's operations.

Although, as the Tax Court of Canada deputy judge mentioned, customer service represented 20% of the plaintiff's turnover, he seems to have forgotten that the plaintiff had an internal technical section consisting of a manager and about fifteen technicians, and Mr. Blouin was not part of that. In fact, the services rendered by the Société Électronique Enr. and Mr. Blouin accounted for only a small part of this turnover. In any case, we do not see how this point becomes an indication that Mr. Blouin was integrated into the plaintiff's business. There is nothing to prevent a business assigning all or part of its customer services to one or more independent contractors."

[27] Regarding the issue of risk of loss and expectation of profit, Létourneau, J.A. continued at paragraphs 17-19, inclusive, as follows:

"The Tax Court of Canada deputy judge concluded on the basis of the following three facts that Mr. Blouin and Service Électronique Enr. suffered no loss:

(a) they were reimbursed for their travel expenses even if the customer to be served was not present when they called;

(b) Mr. Blouin received remuneration in the form of a salary at a rate set by the plaintiff; and

(c) the plaintiff had obtained liability insurance to protect itself against mistakes by Mr. Blouin.

With respect, we do not feel that these facts are conclusive as to the analysis of risk of loss or expectation of profit by Mr. Blouin and his company. Although Mr. Blouin's income was calculated on an hourly basis, the number of hours of work were determined by the number of service sheets he received from the plaintiff. Mr. Blouin and his company thus had no guaranteed income. Unlike the technicians working as employees within the plaintiff's business, whose weekly salary was constant, Mr. Blouin's income fluctuated with the service calls. In fact, towards the end of his contract with the plaintiff Mr. Blouin was no longer doing the equivalent of forty hours a month as he was receiving few service sheets.

Further, Mr. Blouin, who used his own vehicle for work, had to pay the losses resulting from an accident in which he was involved and obtain another vehicle. (See also Canada (Attorney General) v. Rousselle et al. (1990, 124 N.R. 339, at 346, in which the costs of repairing a skidder assumed by the workers were regarded by this Court as a significant element of risk consistent with a contract of enterprise, not a contract of employment.)

[28] As a consequence of the analysis undertaken, Létourneau, J.A. concluded the worker had not been engaged in insurable employment.

[29] In the within appeals, the facts surrounding the working relationship of the invervenor support the view he was in the transportation business and functioned as a courier by means of operating his own vehicle which had certain specifications and attributes which permitted him to increase his revenue. Flash was the larger entity that dealt directly with the customer in order to receive the calls, issue the subsequent billing and fulfil all other administrative requirements. The intervenor and Flash together with the other 50-70 drivers and/or 10-15 bicycle couriers performed the tasks required of them in order to generate revenue which was then divided in accordance with an agreed-upon formula as stated in their individual contracts. There is nothing preventing wheels within a larger mechanism from being legitimate stand-alone entitities even though in order to function profitably they must mesh with the greater machine. In any sophisticated economy that will be the norm. Near total dependence on one client may be - at times - foolhardy but it will not, without more, transform someone into an employee of the one writing the cheques in return for services.

[30] Having considered the evidence with a view to the overall scheme of operations and for the reasons expressed above, I conclude Fenton Paul was, at all times during the relevant period, an independent contractor pursuant to a contract for services and was not employed in insurable and pensionable employment with the appellant during the period January 17, 1997 to June 26, 1998.

[32] The appeal is allowed - as is appeal 1999-2240(CPP) - and the decisions of the Minister dated January 29, 1999 are varied to find that during the period January 17, 1997 to June 26, 1998 Fenton Paul was not employed pursuant to a contract of service with Flash Courier Services Inc. and therefore was not in insurable or pensionable employment pursuant to the provisions of the Employment Insurance Act or the Canada Pension Plan.

Signed at Sidney, British Columbia, this 14th day of April 2000.

"D.W. Rowe"

D.J.T.C.C.