REASONS
FOR JUDGMENT
Rowe D.J.
[1]
The appellant, Mark Roberts (“Roberts”),
appealed from a decision issued by the Minister of National Revenue (the
“Minister”) on June 17, 2013 pursuant to the Employment Insurance Act
(the “Act”) wherein the Minister decided his employment with the Intervenor,
Michael Libourkine (“Libourkine” or “payor”), was not insurable because the requirements of a contract of
service were not met and therefore an employer-employee relationship did not
exist during the relevant period from July 24, 2011 to September 10, 2012.
[2]
Roberts testified he was hired by Libourkine
after an interview in June, 2009 and provided his services thereafter until
September 11, 2012 (one day later than the date in the decision issued by the
Minister). Roberts stated he had filed an Answer to Reply of Notice of Appeal (“Answer”)
dated February 21, 2015 and that this document contained details of this
working relationship and he wished to use it in his testimony by reading it
verbatim. Permission was granted and Roberts read from the Answer as follows:
[…]
I did work for Michael Libourkine and Toronto Mutual
Group in a master servant relationship acting under the direction of Michael
Libourkine. He had total degree of control. He told me what to do and how to do
it. I was never free to decide how the work should be done. He told me to use
his office phone, his call lists, his chair and desk and office. He told me when
to work and how to perform the job. I did not supply any tools, was not free to
determine when to start work nor the best way to perform the job. I was paid an
hourly wage. He owned all of the tools used and ran the risk of loss from the
work performed. Our contract involves me agreeing to generally serve him and
TMG. He supervised and directed me. I entered into a general service
relationship with them I was not in business on my own account. I did not
provide any of my own equipment in doing the work. They had complete control. I
did not hire my own helpers nor was I permitted to do so. I held absolutely no
degree of financial risk, no responsibility for investment and management
whatsoever. My task was to telemarket for an hourly wage set by Michael Libourkine
and TMG. There was no opportunity for profit by me in doing this. I did not
negotiate rates of pay. They assigned me to work at particular times, on
particular days and in specific geographical areas. I was not permitted to
request such particulars. I was required by them to work a minimum of 3 hours
per shift 6 days per week. They made me be consistently available during my
shifts. Clients could not call me directly they had to call the dispatcher. I
was required by Michael Libourkine to report to him at the end of every shift I
was given security access cards and keys to the offices by them. I had to
cancel his appointments set by me when he did not feel like going to them and I
would not be paid bonuses for them but merely the hourly wage when this
transpired. I was an integral part of the organization for Michael Libourkine
and TMG. Their job was to meet potential clients my job was to telemarket
Canada Life`s Money Back Mortgage Insurance Plan and to explain that I was
calling from Canada Life (in addition to arranging for them to do that subject
to group control from them) I was not free to offer my services to others and
did not bear the risks of profit and loss when work was not completed in a
timely manner. I was required by them to attend employee staff meetings and
adhere to instructions provided at those. I was given a commitment by them to
be paid an hourly rate of pay and then later an additional bonus arrangement
for additional pay for setting appointments no notice was given for termination
there was not just cause for termination. I was an employee employed in
insurable employment while working for the payer the payer was involved in a
partnership called Toronto Mutual Group. He was a senior partner and director
of sales. I never performed my work from a home office. I worked from the
Toronto Mutual Group offices consistently from June 22,2009 until
September 11,2012 I had their permission and instructions to do so. I performed
telemarketing services for and received remuneration from TMG and Michael
Libourkine
TERMS AND
CONDITIONS
I never provided on and off services to TMG nor to
Michael Libourkine. I worked 6 consecutive days per week from June 22,2009
until September 11,2012 I did not determine my own hours of work. No
flexibility was provided for my hours of work. I could not come and go to work
as pleased I did not take time off work whenever I wanted. I was required to
inform the payer if I was going to be absent from work. I was required to
obtain the payers approval before taking certain actions. I was required to
report to the payer daily. I was not free to accept or decline work. I did not
find my own leads using the internet or telephone books. Michael Libourkine
provided me with calling lists and I was supervised while at work in their
offices. I was required to provide my services exclusively to the payer who
provided me with a desk and telephone and a work space and office from June
22,2009 until September 11,2012 I never originally nor at any point in
time provided an office nor a fully equipped office nor a cell phone. I was not
responsible for any maintenance nor repairs of tools or equipment.
I was required to
perform my services personally. I could not hire assistants or replacements. I
was not responsible for hiring and paying assistants or replacements. If I did
not book any appointments I was still paid $14.00 per hour worked. The payer
paid a bonus in addition to my hourly pay when a potential client was seen
only(not when making a certain number of appointments) I was not required to
complete invoices in order to be paid. Time sheets were on TMG letterhead. I
did not determine if work needed to be redone nor did I cover the related
costs. I did not incur expenses in the performance of my work. The payer nor
did I consider myself to be self employed. I never worked for another insurance
broker from TMG nor provided telemarketing services to them as an independent
contractor. I did not have a business for Disc Jockey Services ever. After
Michael Libourkine and TMG fired me in the year 2012 I had cards printed for my
hobby as a disc jockey which never was I in the business doing.
GROUNDS RELIED
ON and RELIEF SOUGHT
I submit that I
was insured in insurable employment with the payer and that there was a
contract of services between the payer and myself. I respectfully request that
the decision be reversed and that my appeal be approved.
INTENTION OF
THE PARTIES/LEVEL OF CONTROL
I believed and
stated during the appeal that I was hired as an employee for the period under
review as well as the years before. I was not free to use my own methods to
find clients using telephone books or internet searches. I did not determine my
own schedule and could not have performed the work from home ever. I was in
fact supervised and could not use any means that I saw fit to accomplish my
tasks. Michael Libourkine trained me for the job. In the first year of
employment I was paid bonuses set by the payer on confirmed client appointments
in addition to my hourly rate of pay. I was always given an hourly rate of pay
from June 22,2009 through to September 11,2012 I did not require a phone book
to perform my duties. I did not use my cell phone nor any phone that was owned
by me at the place that the payer practiced his business. I could not have
performed my work from anywhere using any phone equipment other than at TMG’S
office and on their business telephone and business telephone lines.
SUBCONTRACTING
WORK/HIRING ASSISTANTS
I was not in a
position that allowed me to hire helpers and assistants at my own discretion. I
was never allowed to decide my rate of pay. The payer insisted that I
specifically perform the work and did not permit assistance to be used by
others.
DEGREE OF
FINANCIAL RISK
I incurred no
expense in the performance of my work and was guaranteed income in the form of
an hourly wage always. I was and would have been paid by the payer if I did not
book and confirm client appointments for the payer.
DEGREE OF
RESPONSIBILITY FOR INVESTMENT & MANAGEMENT
I was an
important part of the organization for TMG and Michael Libourkine I worked for
them exclusively and was not permitted to have worked for other payers nor did
I. I was not entitled to subcontract my services nor able to generate a profit
in excess of revenues. I was not permitted to determine my own schedule. The
payer paid my an hourly wage per hour worked and in addition also bonuses on
confirmed appointment(this was in the first year)in all other years I was paid
an hourly rate of pay per hour worked plus bonuses on every person seen by the
payer. The payer provided all the client information, call lists etc.
OTHER RELEVANT
FACTORS
There was a
verbal contract between the parties and I did not have any flexibility nor
opportunity for profit.
[…]
[3]
In additional testimony, Roberts stated that as
of July 24, 2011, payments in the form of cheques were issued to him under the
name of Libourkine whereas earlier the cheques had been in the names of
Libourkine and Toronto Mutual Group (“TMG”).
Roberts stated there was a further change in the manner of payment in that no
bonus was paid unless Libourkine met with a potential client pursuant to an
appointment that had been booked by him and although he did not agree to it,
was informed by Libourkine this was the new system. Roberts re‑iterated
that his services, at that point, were remunerated at the rate of $14 per hour
plus bonuses for booking successful meetings with prospective clients and that
he had requested Libourkine to re-institute the former method where payment was
made merely for booking an appointment, even though it did not result in a
meeting between Libourkine and the prospect. Roberts stated he requested an
increase to his base hourly salary to compensate for the change in payment for
booking appointments. He stated he had worked in retail and as a telemarketer
and was familiar with statements issued by a payor showing the amount earned and
the various deductions from the gross pay. He stated he had asked Libourkine
for this information but it was not received. Roberts filed, as Exhibit A-1, a
photocopy of a cheque dated 2011-12-23 in the sum of $720.00 and referred to
the memo line and the handwritten insertion, “5 days + 1 App + 500 Bonus.” He
said the reference to the bonus was incorrect because the gross amount also
included his entitlement to vacation pay. Roberts stated that for the relevant
period, he filed his income tax returns and reported his earnings as employment
income. With respect to starting to work for Libourkine prior to the relevant
period, Roberts stated he had responded to an advertisement by TMG in a Toronto
daily newspaper inviting applications for a telemarketing position. Initially,
Roberts thought TMG was a corporation, but then met with Libourkine who
indicated he was a senior partner in TMG. During the entire working
relationship from June 20, 2009 to September 10, 2012, Roberts stated he was
engaged in telemarketing the same product, namely Canada Life Money Back
Mortgage Insurance Plan and made his calls to prospective customers using a
prepared script. He worked 6 p.m. to 9 p.m. Monday through Saturday for a total
of 18 hours a week and asserted he was always paid an hourly wage plus bonuses
depending on the system in place. He did not work for any other entity during
the relevant period and had not worked as a self-employed telemarketer in the
past, as assumed by the Minister at paragraph 10(xx) of the Reply to the Notice
of Appeal (“Reply”), nor at any other time. The
telemarketing jobs varied in length from 2 weeks to 3 months depending on the
nature of the product or service being offered and he had provided his services
to 15 or 20 business entities and had always been an employee with the usual
deductions from his pay cheques.
[4]
Roberts was cross-examined by counsel for the
respondent who referred him to the memo line on the cheque - Exhibit A-1 –
dated December 23, 2011 and suggested the major portion of the amount was
attributable to a Christmas bonus. Roberts replied that was not correct and
while the amount in excess of 5 days’ pay and a bonus for one appointment
may not be equal to 4 percent vacation pay based on earnings for that year, it
was still paid by Libourkine and received as vacation pay entitlement. Counsel
suggested the appellant’s earnings for that pay period was in the sum of $220
based on a payment of $10 for each appointment booked and kept by the persons
contacted. Roberts denied that was the basis of his remuneration and
re-iterated that he was paid an hourly wage of $14 in 2011, although his
initial wage was only $10 per hour in 2009 when he began working with
Libourkine. Roberts stated he answered an advertisement in the Toronto Star and
met with Libourkine who advised that he and his business partner were both
self-employed individuals. Roberts stated he was paid his normal 3 hours’ pay on
any statutory holiday when he did not work. Counsel referred him to the
reference near the bottom of his Answer – as read in as part of his testimony –
where he asserted he had never performed any work from a home office and had
worked from TMG offices consistently from June 22, 2009 until September 11,
2012 and had received permission and instructions from Libourkine to do so.
Roberts also asserted that his payments were initially from both Libourkine and
TMG. Roberts denied the suggestion by counsel that he had asked Libourkine if
he could work from the TMG office so he could use their telephones to call long
distance when required. Counsel referred Roberts to a bundle of three documents
– of which two were entitled “Invoice” in the upper right-hand corner – and a
photocopy of a cheque on the account of Libourkine dated 2102-07-02 in the sum
of $420. (The bundle of three documents was entered for identification purposes
only). Roberts acknowledged he wrote his name in the line at the upper
left-hand corner of the first invoice for work done on the days from 21-06-2012
to 23‑06‑2012, inclusive, however, the printed word “Invoice” was not
on the form when he did so. With respect to the invoice on the second page of
the bundle, Roberts agreed the entry of his name on the appropriate line “appeared to be” in his handwriting, but the column headed “Hours Worked” was missing and the invoice he saw, and on which he probably
entered his name, had been printed on TMG letterhead. Counsel referred Roberts
to the Notice of Appeal and the handwriting therein and suggested it matched
that on the two invoices referred to earlier. Roberts stated that the entry on
the invoice for days worked from 25-06-2012 to 29-06-2012 (second page of the
bundle) – referring to “30 appointments x 14 = 420” was not written by him entirely
although he acknowledged he had written the words “30
appointments” but not the subsequent calculation “x 14 = 420”. Roberts
stated that during this particular pay period, he worked 24 hours and had
booked six appointments which had been kept by prospective clients of
Libourkine and that the payment of $420 was based on a combination of his
hourly wage of $14 plus bonuses. During his working relationship with
Libourkine, Roberts stated he attended one staff meeting at the TMG office at
which Andy Zwolinski (“Zwolinski”) was present but met with Libourkine quite often. Roberts
re-iterated he had requested T-4 slips from Libourkine which were not received.
However, he continued working because he needed the income and later reported
the absence of the T‑4 slips to Service Canada. In the course of
providing telemarketing services prior to his working relationship with the
payor, the appellant maintained he had always received T‑4 slips. He
denied the suggestion of counsel that he had never been provided with a script
to use when calling people about the Canada Life product offered through
Libourkine and stated all telemarketers are instructed to adhere to a script
when explaining the product being promoted. Counsel referred Roberts to a
photocopy of the front page of a brochure pertaining to the services and
products offered by TMG. Roberts acknowledged he had seen this material at the
front of the office but had not received a copy directly. He stated he had been
handed a typed script to use during calls and a checklist to use when booking
an appointment. When making telephone calls between 6 p.m. and 9 p.m. from
the TMG office, he often saw Zwolinski. Roberts stated he and Libourkine
sometimes worked from the same small office – equipped with two desks - and it
was noisy when both were on the telephone and that the entire TMG office was
not large, perhaps twice the size of the courtroom. Roberts stated he never
worked in a cubicle as it was distracting and had informed Libourkine a quieter
environment was required. Roberts stated he had been instructed by the payor to
work only from 6 p.m. to 9 p.m. and even though additional hours were requested,
none were forthcoming. During the relevant period or perhaps earlier, TMG had
moved its offices to different suites within the same building. Roberts stated
he used a telephone in the TMG office to call long distance to Oshawa, Barrie
and London or other places outside the Greater Toronto Area (“GTA”). He
stated he used numbers provided to him on a call list and did not use his
personal cell phone as the plan he had was limited to usage from 8 a.m. to 8
p.m. and extra time was billed at 50 cents per minute, which was excessive in
comparison to his income. Roberts stated Libourkine would inform him when an
appointment had been kept and that the appropriate bonus amount in effect at
the time would be paid. Roberts stated Zwolinski gave him specific instructions
not to call individuals who had complained about having been approached by
telephone and repeated that “of course there were call lists” provided by the payor and that the
Minister had made this assumption at subparagraph 10(x) of the Reply. If a
potential customer wanted to return a call, they were given a number that was
answered by Sandy, a receptionist that he considered to function as a
dispatcher. On occasion, a response was provided by voice mail.
[5]
Roberts was cross-examined by Libourkine, who
referred to his testimony at a hearing before the Ontario Labour Relations
Board resulting in a decision dated March 6, 2015. In said hearing, Roberts had
testified he was entitled to the sum of $1,336 in unpaid vacation pay,
including pay for statutory holidays. Roberts replied that he had intended to
say that this unpaid amount represented the balance of vacation pay owing over
the entire three-year period since commencing his working relationship in 2009
and that he had received partial amounts now and then attributable to vacation
pay. Libourkine asked Roberts whether he could produce any cheque or other
proof during that period – including the relevant period – that had any
reference to “vacation pay”. Roberts agreed no cheque had ever been issued to him with that
notation. Libourkine referred Roberts to the two invoices which indicated eight
days worked for a total of 24 hours, which at $14 an hour – as alleged – would
amount to $336, whereas the cheque was for $420. Libourkine advised Roberts
that if the difference was to be attributable to supplemental pay for
appointments booked – and kept – that would equal 8.4 such events at $10 each
which did not make sense. Roberts repeated that he had to use TMG telephone
lines to make long‑distance calls and that there were two desks in
Libourkine’s office and he had worked from there to avoid distraction from
calls made by other TMG telemarketers or conversation among themselves.
[6]
Counsel for the respondent advised that the
appellant had filed income tax returns on the basis of employment during the relevant
period and not as a self‑employed person.
[7]
The appellant closed his case subject to
rebuttal, if permitted.
[8]
Libourkine was called to testify by counsel for
the respondent. Libourkine stated he lived in Toronto and was a salesperson and
had been in business for 15 years. He had a business relationship with TMG
and carried on his activity as a broker by acquiring leads from various sources
that could produce prospective customers for various products offered within
the insurance industry including RRSPs, RRIFs, medical insurance, other health
insurance and long-term care coverage. One of the methods of soliciting leads
is to hire telemarketers and to that end he placed an ad on Kijiji - an
Internet website – and not in the Toronto Star newspaper as alleged by Roberts.
Libourkine stated he received numerous responses to the posting of the position
on Kijiji including one from Roberts whom he interviewed. During their
discussion, he became aware Roberts had worked as a telemarketer for a friend
who had been a broker with Clarica – an insurance company – and later
Libourkine called that individual for a reference. Libourkine stated there is a
standard business practice within the insurance industry where various products
and services are offered through a broker and that a telemarketer is remunerated
only on the basis of procuring an appointment – a lead - with people who are
interested. The agreement with Roberts was based on him using the telephone to
secure potential customers who were willing to meet with Libourkine or – if
required – another broker working out of the TMG office. Libourkine had the
right of first refusal on any leads produced by Roberts but could pass one or
more on to another broker in accordance with a list maintained at TMG. If
another broker at TMG met with the prospective customer, Roberts would still be
paid – by Libourkine - for the booking, who would share in any commission
produced by his alternate if a sale had been made. Libourkine stated it made no
economic sense to pay a telemarketer an hourly rate as income generated by a
broker depends on booked appointments and subsequent meetings with the
prospects that may result in sales of a product or service that entitles the
broker to a commission. Libourkine stated that in his experience, telemarketers
providing service to brokers within the insurance industry work from their own
home or other location but Roberts wanted to work from the TMG office because
he had advised that his home environment was not conducive to business use.
Libourkine stated he passed on that request to Zwolinski, who approved it.
Libourkine stated that with respect to Roberts’ allegation that he worked from
a desk in Libourkine’s office, that was not correct. Instead, no one – except
the building manager in the event of an emergency - had access to that office
due to licensing, regulatory and bonding requirements and the door was locked
by Libourkine even if he left for a brief period for some purpose within the
TMG office space or the building. The filing cabinets are full of extremely
confidential information concerning policyholders and their families. Libourkine
stated there was never a second desk in his office although there were two
desks in another space at TMG. Libourkine did not care when calls were made by
Roberts nor about the number of hours worked. Successful leads were generated
in accordance with the “numbers game” because more calls will result in more
appointments which are capable of being transformed into sales. Libourkine
stated there were occasions when Roberts was absent for periods of two weeks or
more. In Libourkine’s experience, telemarketers providing services to brokers
use various methods, including searches through Google, or the white pages of a
telephone directory or other methods. He would not attempt to sell a product or
service to people living in outlying areas, such as Barrie or London, as the
travel and time involved would not be profitable compared to any potential
commission revenue. Libourkine stated he did not know how Roberts produced the
leads and was not provided with any call list, as no such document existed
within his own business operation or at TMG. There was no script provided to
Roberts nor to any other telemarketer providing services to brokers working
from TMG premises, as the conversation with the prospect will dictate the type
of product that person could use, whether an education policy for young children
or health insurance or long‑term care for a senior. Roberts had been
retained as a telemarketer based on his experience. Libourkine identified a
photocopy – Exhibit R-1 – of the TMG brochure referred to earlier during the
cross-examination of Roberts – which explained the type of products and
services sold by various insurance companies and available through brokers.
Libourkine stated that for a while, cheques payable to Roberts or for other
business purposes had the name TMG printed thereon, together with his own, but
the account was solely in his name. TMG is owned by Zwolinski and the space is
leased by him to brokers who are charged a fee for their offices and other
services. Libourkine was referred to the bundle of documents, including the two
invoices referred to earlier during the cross‑examination of Roberts. He
identified them as invoices he had received from Roberts and stated they had not
been altered and that the handwriting thereon was that of the appellant. The
bundle of three documents was entered as Exhibit R-2. Libourkine stated he
added the number of confirmed appointments and multiplied the total by 14 to
determine the compensation payable to Roberts. The practice followed was for
Roberts to call the prospect the day before the appointment to confirm it and
at least 90 percent of the time a meeting was held as scheduled. On those
occasions when the client was not met, Roberts would not be paid $14 but could
re-book the appointment and receive payment if it resulted in a meeting.
Libourkine recalled there were a few occasions – less than 10 percent of
total - when Roberts had been paid for a missed appointment and that amount was
then deducted from a payment for a subsequent pay period. Libourkine stated he
had not used a TMG invoice at any time as the cheques paid to Roberts – and
cashed – were sufficient for his accountant to track business costs. With
respect to the cheque dated 2011-12-23 – Exhibit A-1 – Libourkine stated
Roberts had not earned much money that month and it was just two days before
Christmas so the amount paid included a bonus that was not based on any
vacation pay or other entitlement and that the pay structure had been the same
throughout the entire period – beginning in June, 2009 – that Roberts had
provided his telemarketer services and had never included any vacation pay or pay
for statutory holidays. Although the compensation for booking a successful
appointment increased over the years from $10 to $14, there was no other remuneration
paid. There were four or five other telemarketers at the TMG office who had
longstanding working relationships with various brokers operating within the
TMG business model and they were older people who worked from time to time and
earned between $20 and $50 a week under circumstances that were often more
consistent with a social outing. Libourkine stated that in his experience, even
when the services of a telemarketing entity are retained, that payment is based
on confirmed appointments. There was no receptionist or dispatcher at TMG and
Roberts gave prospective clients Libourkine’s cell phone number if needed. TMG
had a website that could be accessed by interested parties.
[9]
Libourkine was cross-examined by Roberts. He
denied Roberts had been provided with keys to his office, although a pass card
had been issued so he could access the 9th floor where the TMG office was
located. The advertisement seeking the services of a telemarketer had not been
placed in the Toronto Star because of the cost, whereas a listing on Kijiji was
free. Libourkine denied Roberts had been provided with a call list but had
suggested Roberts should seek customers living in areas close to Libourkine’s
residence, both as a matter of convenience and to reduce travel costs and the
time expended in comparison with potential revenue that could be generated from
the sale of a particular product or service. Sometimes, it required three or four
visits to a client before a sale was concluded.
[10]
Andy Zwolinski was called to the stand by
counsel for the respondent. He testified he was the sole shareholder of The
Mutual Group Inc. referred to herein as TMG. All brokers with a working
relationship with TMG are independent brokers who carry on business by selling
products and services provided by various insurance companies and earn income
from commissions on premiums and bonuses when applicable. Brokers obtain
clients in various ways, including personal visits to corporate clients and by
using the services of telemarketers. TMG does not have a staff and the person
identified earlier in testimony as Sandy was not an employee but worked as a
telemarketer and had provided services to three different brokers over many
years. Any administrative services required by TMG were performed by an
independent outside administrator. Zwolinski stated his practice is to inform
brokers he wants to meet with a telemarketer prior to being hired and would
have followed this course prior to Libourkine obtaining the services of Roberts
and, during the meeting, would have provided Roberts with the pamphlet
explaining the products and services available through brokers associated with
TMG. Zwolinski stated he knew Roberts had worked – at some point between 2002
and 2004 - as a telemarketer for a broker who was selling products offered by
Clarica. There were no scripts provided to any telemarketer working from the
TMG office and the only suggestions he made to the brokers was that their
telemarketers should not call after 9 p.m. or on weekends, but all brokers
renting space from TMG were independent and could choose their own methods of
operation. Zwolinski stated it makes business sense to pay telemarketers on the
basis of appointments kept, which provides a broker with the opportunity to
make a sale. He is familiar with 80 or 90 brokers and 10 percent of them do 90
percent of the business and many operate from their home. Zwolinski confirmed
he permitted Roberts to use an available cubicle at TMG to make calls from 6 p.m.
to 9 p.m., but was not there often when Roberts was working because his son was
involved in a sport activity which occupied a lot of time in the evenings.
Zwolinski confirmed there is a requirement that “tight security” protocols are followed
with respect to the offices of brokers and while there is no direct
supervision, someone working in TMG space is always responsible to lock up the
premises and to ensure the office of each broker is locked. Zwolinski stated
that in his 31-years’ experience in the insurance industry, he has not known
any telemarketer to have provided services to any broker as an employee.
[11]
In cross-examination by Roberts, Zwolinski
repeated that there was no reason to instruct brokers and he definitely did not
do so with respect to any telemarketers.
[12]
Counsel for the respondent advised that the
respondent did not rely on the assumption, contained at subparagraph 10(hh) of
the Reply, that the appellant was paid $14.00 per hour and that it had been
inserted based on erroneous information received at an earlier point in the
overall process. Counsel advised the case for the respondent was closed.
[13]
Roberts was permitted to testify in rebuttal and
re-iterated that Libourkine had provided him with keys to his private office
and that the normal practice within the telemarketing business is to be paid an
hourly wage and that he had received payment on that basis when providing
services to the broker associated with Clarica. He denied having worked from
home and had only worked from the TMG premises since he began providing
telemarketing services to Libourkine in 2009.
[14]
The appellant closed his case.
[15]
The appellant submitted his evidence was clear
and supported his contention that he had been an employee of Libourkine during
the relevant period and earlier. He submitted he had not acted as an
independent contractor and had reported earnings as employment income during
the taxation years pertaining to the relevant period.
[16]
Counsel for the respondent submitted the
evidence adduced on behalf of the respondent had demonstrated a lack of control
and supervision, as Libourkine was concerned only with the result, which was a
successful meeting with a prospect flowing from a confirmed appointment
arranged by Roberts. Counsel acknowledged there were no tools of consequence
provided or needed, other than a telephone, and that Roberts had requested
permission to use TMG office space and telephone lines. With respect to
potential for profit, the revenue earned by the appellant was directly related
to his efforts and his own choice of methods to make enough calls so
appointments could be made whereby Libourkine – as broker – had the opportunity
to make a sale and earn revenue. Counsel submitted Roberts was aware of the
nature of the services he was providing and did so as an independent contractor,
utilizing his own skill and experience. With respect to the handwriting on the
invoice – page 2 of Exhibit A-2 – it was obvious the handwritten portions and
the notation “30 appointments x 14 = 420” were in the appellant’s handwriting,
as borne out by a comparison with the contents of his Notice of Appeal. Counsel
submitted that the evidence adduced by the appellant had not demonstrated that
the decision of the Minister was wrong and that it should be confirmed.
[17]
The pertinent definition of insurable employment
under the Act for the purposes of this appeal is set out in paragraph
5(1)(a) of that legislation, which reads as follows:
5.(1) Types of
insurable employment - Subject to subsection (2),
insurable employment is
(a) employment in
Canada by one or more employers, under any express or implied contract of
service or apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other person and
whether the earnings are calculated by time or by the piece, or partly by time
and partly by the piece, or otherwise;
(emphasis
added)
[18]
I have added the emphasis because although it
was not raised in this appeal, there is often the mistaken belief by both
parties to a working relationship that remuneration in the form of commission
or piecework or other system of payment including bonuses will – without more –
confer the status of independent contractor on the provider of the service.
[19]
The Supreme Court of Canada in 671122 Ontario
Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 [Sagaz]
dealt with a case of vicarious liability and in the course of examining a
variety of relevant issues, the Court was also required to consider what
constitutes an independent contractor. The judgment of the Court was delivered
by Major J., who reviewed the development of the jurisprudence in the context
of the significance of the difference between an employee and an independent
contractor as it affected the issue of vicarious liability. After referring to
the reasons of MacGuigan J.A. in Wiebe Door Services Ltd. v Canada (Minister
of National Revenue - MNR), [1986] 3 FC 553 and the reference therein to
the organization test of Lord Denning – and to the synthesis of Cooke J. in Market
Investigations, Ltd. v Minister of Social Security, [1968] 3 All ER 732 -
Major J. at paragraphs 47 and 48 of his judgment stated:
47. Although
there is no universal test to determine whether a person is an employee or an
independent contractor, I agree with MacGuigan J.A. that a persuasive approach
to the issue is that taken by Cooke J. in Market Investigations, supra. The
central question is whether the person who has been engaged to perform the
services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the
worker's activities will always be a factor. However, other factors to consider
include whether the worker provides his or her own equipment, whether the worker
hires his or her own helpers, the degree of financial risk taken by the worker,
the degree of responsibility for investment and management held by the worker,
and the worker's opportunity for profit in the performance of his or her tasks.
48. It
bears repeating that the above factors constitute a non-exhaustive list, and
there is no set formula as to their application. The relative weight of each
will depend on the particular facts and circumstances of the case.
[20]
In the case of 1392644 Ontario Inc. o/a Connor
Homes v Canada (Minister of National Revenue, MNR), 2013 FCA 85, [2013] FCJ
No. 327 (QL) [Connor Homes], the Federal Court
of Appeal considered the manner in which the analysis should proceed, which is
that the intent of the parties should be ascertained before commencing the
Wiebe/Sagaz analysis. The Court states the following in explaining how to
conduct the analysis:
38. Consequently,
Wolf and Royal Winnipeg Ballet set out a two step process of
inquiry that is used to assist in addressing the central question, as
established in Sagaz and Wiebe Door, which is to determine
whether the individual is performing or not the services as his own business on
his own account.
39. Under
the first step, the subjective intent of each party to the relationship must be
ascertained. This can be determined either by the written contractual
relationship the parties have entered into or by the actual behaviour of each
party, such as invoices for services rendered, registration for GST purposes
and income tax filings as an independent contractor.
40. The
second step is to ascertain whether an objective reality sustains the
subjective intent of the parties. As noted by Sharlow J.A. in TBT Personnel
Services Inc. v. Canada, 2011 FCA 256, 422 N.R. 366, at para. 9, “it is also
necessary to consider the Wiebe Door factors to determine whether the
facts are consistent with the parties' expressed intention.” In other words,
the subjective intent of the parties cannot trump the reality of the
relationship as ascertained through objective facts. In this second step, the
parties [sic] intent as well as the terms of the contract may also be
taken into account since they colors [sic] the relationship. As noted in
Royal Winnipeg Ballet at para. 64, the relevant factors must be
considered “in the light of” the parties' intent. However, that being stated,
the second step is an analysis of the pertinent facts for the purpose of
determining whether the test set out in Wiebe Door and Sagaz has
been in fact met, i.e [sic] whether the legal effect of the relationship
the parties have established is one of independent contractor or of
employer-employee.
[21]
In the within appeal, it is clear neither
Roberts nor Libourkine discussed the status to be accorded to the provision of
services by Roberts. Libourkine testified that it was apparent, not only to him
but also to Roberts, that the nature of the service provided within the context
of the insurance industry was that the compensation would be based on
results, namely leads culminating in a meeting between prospective customers
and Libourkine. It was his understanding that Roberts – as an experienced
telemarketer generally and specifically having provided his services to Clarica
– an insurance company operating in Toronto – was aware he was free to utilize
his own methods and to work such hours and under such conditions as he deemed
appropriate to generate income. There was never any intention on the part of
Libourkine that Roberts would be an employee. On the other hand, Roberts
maintained that he had past experience both in retail and as a telemarketer and
even though some telemarketing jobs lasted only three weeks, he was always
accorded the status of employee and had received cheques as payment and
accompanying information providing details of the relevant deductions from the
gross amount of earnings. There was no written contract between the parties nor
was there any subjective intent on the part of Libourkine and Roberts’ only act
of compliance with any purported intent in that regard came much later when he
filed his income tax returns and reported earnings as employment income, based
on his calculation of remuneration received from Libourkine for the particular
taxation year.
[22]
In accordance with the judgment in Sagaz,
I undertake the following analysis.
Level of Control
[23]
In order to arrive at a determination with
respect to this factor, it is necessary to refer to the evidence of Roberts and
Libourkine and – sometimes – Zwolinski to illustrate the conflict in evidence
on many important points.
[24]
Roberts adopted the contents of his Answer by
reading it into his direct examination and thereafter in additional testimony –
including on cross‑examination by counsel for the respondent and
Libourkine - made the following assertions that:
1. he
responded to an advertisement in the Toronto Star seeking telemarketers;
2. when
hired by Libourkine and starting work on June 22, 2009, he was required to work
shifts and was an integral part of Libourkine’s business and that of TMG;
3. he
was required to attend staff meetings and to adhere to instructions provided
during these sessions;
4. there
was an initial commitment by both Libourkine and Zwolinski to pay an hourly
wage and later in the working relationship, there was an arrangement to pay him
bonuses based on appointments booked but later revised – unilaterally – by
Libourkine who paid thereafter only for appointments that resulted in a meeting
with the prospect;
5. Libourkine
stated he was a senior partner in TMG and was Director of Sales;
6. he
always worked from the TMG offices from June 22, 2009 to September 11, 2012,
the actual last day prior to the termination of the working relationship,
rather than September 10 as stated in the decision of the Minister;
7. he
received payment in the form of cheques jointly from Libourkine and TMG;
8. he
worked consistently 6 days a week throughout his entire telemarketing work for
Libourkine;
9. he
had to report daily to Libourkine who provided him with calling lists;
10. he
was paid an hourly rate at all times which was increased from $10 to $14 in the
later stages of his work and – initially – was paid a bonus for each
appointment booked;
11. he
submitted timesheets on TMG letterhead and received payment based thereon
without the need to submit an invoice;
12. he
could not determine his own work schedule and never worked from home;
13. he
did not use a cell phone as asserted in adopting that portion of his Answer but
later admitted he had one but the plan was not suitable for telemarketing as
the minutes were limited and the charge for supplemental time was excessive in
light of probable revenue generated;
14. he
did not write the numbers utilized in the calculation on the invoice within Exhibit
R-2;
15. he
was provided with keys to Libourkine’s office and worked from one of the two
desks there but sometimes it became noisy because both of them were talking on
the phone at the same time to prospects;
16. there
had always been an entitlement to vacation pay and pay for working on a
statutory holiday but only partial payments were received during the period
June 22, 2009 until his final day of work on September 11, 2012;
17. there
was a call list and a script provided by Libourkine that he was directed to use
and follow when making calls;
18. when
potential clients called the TMG office, Sandy, the receptionist/dispatcher,
answered and directed the call accordingly to Libourkine or another specific
broker at TMG;
19. he
needed to use the telephone lines at TMG to make long distance calls on behalf
of Libourkine; and
20. during
his entire experience as a telemarketer for various entities - including when
providing services to a broker associated with Clarica 10 or 12 years earlier -
he had never been treated as other than an employee with the usual deductions
from his gross pay which was based – always - on an hourly rate.
[25]
The testimony of Libourkine with respect to
these points was that:
1. he
did not place an advertisement in the Toronto Star due to the cost involved but
used the website Kijiji which was free;
2. Roberts
was not required to work specific shifts and was not an integral part of his
broker business or the business of TMG;
3. there
were no staff meetings, but Zwolinski had met Roberts prior to Libourkine hiring
him to work as a telemarketer;
4. there
was not any agreement at any time during the entire working relationship to pay
an hourly wage to Roberts, as that is not economically feasible or practical,
nor is it a method of remuneration used within the insurance industry by
independent brokers;
5. he
did not represent to Roberts that he was a partner or investor in TMG other
than to explain that he utilized space within the TMG leased premises;
6. most
telemarketers who provide services to brokers make calls from their home or
other location and Roberts did so for some time until he complained that his
home environment was no longer suitable and requested permission to use space
within the TMG premises and to use the telephones;
7. for
some time during the entire period, cheques paid to Roberts did bear the name
of TMG thereon but the account was always solely in his name and he was the
sole signatory. He had used that form of cheque to identify business expenses
until his accountant advised that was not necessary;
8. Roberts
did not work consistently 6 days a week and had been absent for certain periods
between June 22, 2009 and the last day of the relevant period – September 10,
2012 – which had not required his permission;
9. Roberts
was never provided with any calling lists or a script to follow when making
calls but had access to a brochure which explained the various products and
services available from various insurance companies as arranged by a broker
associated with TMG;
10. Roberts
was not paid an hourly rate at any time but solely for appointments booked and
kept by the prospect. The payment for that service increased over time to $14
and Roberts had never been paid merely for booking an appointment;
11. TMG
did not have any timesheets and payments to Roberts were made according to the
invoices submitted by him containing relevant information in his own
handwriting;
12. Roberts
was free to make calls at other times and locations other than between 6 to 9
p.m. from the TMG premises;
13. as
Roberts had later acknowledged in his testimony, he had his own cell phone and
could have used it to make telemarketing calls;
14. the
invoices included in Exhibit R-2 had not been altered and the words and numbers
were in the handwriting of Roberts;
15. he
did not provide Roberts with keys to his private office, as strict licensing
and other regulatory requirements and protocol within the industry prohibit
access by unauthorized persons to extremely confidential and personal
information concerning policyholders which is in files kept inside a locked
cabinet in the office and that other than the building manager, for use in case
of an emergency, no one else had a key. When leaving that private office even
for a short time within the TMG premises or the building, he locked it. Roberts
never worked from any desk within the private office and there was only one
desk there, not two as alleged;
16. No
vacation pay or statutory holiday pay had ever been paid to Roberts as alleged
or at all;
17. there
was no call list or script provided to Roberts as he was an experienced
telemarketer who had worked earlier for a fellow broker who had been selling
Clarica products and the types of products available were explained in the
brochure available in the TMG front office area;
18. Sandy
was a longstanding telemarketer for certain brokers with offices at TMG and she
worked from time-to-time but had no responsibility to answer calls or to direct
them to a particular person;
19. Roberts
was not required to make any long distance calls to seek prospects because any
travel outside the GTA, together with the usual time involved to finalize a
sale when compared with potential revenue from the probable commission, was
totally impractical and – instead – he suggested Roberts call people living
within reasonable proximity to his home to reduce travel and enable more
appointments to be kept; and
20. in
his experience as a broker in the insurance industry, he had not known of any
telemarketer who received remuneration for that service other than based on a
certain payment for each appointment booked and in the within case, payment was
earned by Roberts only if a meeting was held with the prospect.
[26]
The testimony of Zwolinski with respect to certain
aspects of the appellant’s testimony was that:
1. TMG
does not have any staff and Sandy is not an employee but a telemarketer with a
long relationship who used the office when she wanted to work and make some
calls. There were no staff meetings;
2. in
accord with TMG policy – set by him as sole shareholder - he advised all
brokers that he wanted to meet potential telemarketers prior to their hiring
and met with Roberts who he had known for years earlier when Roberts had worked
as a telemarketer for a broker selling Clarica products;
3. Roberts
was not provided with any script nor did any script exist within the TMG
business model followed by the individual brokers, but Roberts was provided
with a brochure explaining the products available;
4. he
requested brokers to not have their telemarketers call any persons who had
requested not to be called again and expressed his opinion that it was a good
business practice not to call after 9 p.m. or during a weekend or holiday;
5. the
brokers rented space and certain other services from TMG but were completely
independent and could use their own methods of operation in seeking business
and did not issue instructions to them and certainly not to their telemarketers
with whom he had no business relationship whatsoever;
6. following
a request from Libourkine, Roberts was granted permission to use a cubicle
within TMG space to make his calls during the shift he chose to work, which was
6 - 9 p.m., but access to the private office of each broker was restricted,
with security protocols in place to protect the confidential information in the
files;
7. during
his 31 years’ experience in the insurance industry, it does not make any
economic sense for any broker to remunerate a person for obtaining valid leads
except by a specific payment-per-lead which may result in an earned commission;
8. he
was not in the TMG office often during the hours Roberts made his calls; and
9. Roberts
had the appropriate pass to access the floor and main office of TMG but some
broker or trusted individual assumed the task each night of ensuring all
private broker offices were securely locked.
[27]
It is apparent that an assessment of credibility
in respect of the testimony and the reliability of the sparse documentation is
required.
[28]
In the case of Le Conseil Atlantique du
Canada – The Atlantic Council of Canada v The Minister of National Revenue,
2012 TCC 13, [2012] TCJ No. 3, Justice D’Auray heard an appeal where the issue
was whether an employer-employee relationship existed. With respect to the
matter of addressing the import of conflicting testimony, at paragraphs 80 to
82, inclusive, she stated:
[80] The
nature of the relationship between the appellant and Ms. Sargsyan was the
subject of detailed and at times conflicting testimony from Ms. Sargsyan and
Ms. Lindhout. Some of the conflicts in the evidence are on vital points. In
assessing the evidence of the witnesses, I am mindful of the caution
articulated by the British Columbia Court of Appeal in Faryna v. Chorny,
[1952] 2 D.L.R. 354 at page 359, that a Court must consider the truth of the
story of a witness in the context of the surrounding circumstances. In the
words of that Court:
In short, the real test of the truth
of the story of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions.
[81] In my
view, Ms. Lindhout’s [sic] was the more credible witness. She was a
solid witness, her answers both in examination-in-chief and on cross‑examination
were precise and to the point. On the other hand, Ms. Sargsyan was at
times evasive in cross-examination; she did not respond directly to the
questions that she was asked. More importantly, I find that Ms. Lindhout’s
testimony was more consistent with the surrounding circumstances, including the
written record.
[82] The
written record supports Ms. Lindhout’s evidence. The aim of the SDF Internship
Program was to promote relevant work experience and to complement the studies
of interns. The scholarship under the SDF Internship Program was granted by the
AUCC and not the appellant. The appellant served as a host under the program.
[29]
As a result of a detailed analysis of the evidence
of Roberts, Libourkine and Zwolinski pertaining to the conflict as outlined
above, I have concluded that the evidence of Roberts is not reliable and where
his testimony conflicts with that of Libourkine or Zwolinski on those matters
referred to above, I accept the versions of Libourkine and Zwolinski and reject
those of Roberts. Roberts’ testimony was marked with frequent inconsistencies,
outright contradictions of assertions contained in his Answer which he
incorporated into his direct testimony together with his additional testimony.
He was evasive, and when confronted with facts directly opposite to his
position, blithely invented another version that he hoped would be accepted. When
he could not escape a direct confrontation between two opposing positions or
with respect to an issue such as his handwriting on the invoices, he was quick
to resort to attacking the credibility of Libourkine by labelling him as a liar,
and someone who was – in essence – a forger for having altered or substituted
invoices and destroyed time sheets - allegedly on TMG letterhead - to defeat
his valid claim of employment. To adopt the words of the British Columbia Court
of Appeal, the story told by Roberts was not in “harmony with the preponderance
of the probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions.” The evidence of
Libourkine and Zwolinski concerning the ordinary business methods employed by
brokers within the insurance industry and the traditional method of retaining
telemarketers or others who provide leads by other means, is reasonable and in
accord with economic reality. A broker like Libourkine earns money from
commissions and related premium sharing or bonuses paid by insurance companies
and sales are possible if a prospect can be visited following an appointment
booked by an individual whose services are retained for that specific purpose.
The applicable testimony of both Libourkine and Zwolinski was consistent,
reliable and trustworthy.
[30]
There was no significant control exercised by
Libourkine over Roberts who was free to work whatever hours he chose and to use
whatever techniques he thought appropriate to convince people to meet with
Libourkine. With respect to those indicia of control asserted by Roberts to
bolster his position that he was an employee during the relevant period and
since June 22, 2009, Roberts knew it was necessary to invent details such as
staff meetings, daily reporting to Libourkine, specific shift assignments, the
need to seek permission to be absent from work and his entitlement – as an
employee - to vacation pay and statutory holiday pay. However, he could not
provide any documentation to bolster those bald assertions and admitted no
cheques issued to him by Libourkine had contained any reference to those items.
Roberts was an experienced telemarketer capable of operating independently to
achieve the results required to receive payment from Libourkine.
[31]
The assessment of credibility referred to herein
impacts the analysis of these other indicia.
Provision of equipment
and/or helpers
[32]
The only equipment needed was a telephone,
whether cellular or otherwise. For some time during the relevant period,
Roberts used an empty cubicle in the TMG premises to make his calls and
although the matter was never discussed, it is apparent the telemarketing was
to be performed by Roberts personally.
Degree of financial risk and responsibility for investment
and management
[33]
The only financial downside associated with
Roberts’ telemarketing activity was that his own cell phone plan was not
conducive to making numerous calls of substantial duration on a regular basis
after 8 p.m. because the per-minute supplemental cost was prohibitive compared
with potential revenue. However, this would not seem to be as significant had
Roberts actually been paid an hourly wage – as alleged - regardless of
appointments booked. There was no need for Roberts to invest any money or to
participate in any management function.
Opportunity for profit in the performance of tasks
[34]
The opportunity for profit was directly
connected to the number of calls made and the probable appointments booked, of
which 90 percent were routinely kept by the prospect, which then entitled
Roberts to a fee. He chose to work limited hours per week – usually 18 – and to
utilize the telephones of TMG but the search for prospects could have been
broadened by using other techniques and methods, particularly because he was an
experienced telemarketer who had worked earlier for a broker involved in the
insurance business. Roberts was free to decide the amount of time to devote to
this activity and to adapt his techniques if required to book more appointments
that could result in meetings with prospects and Libourkine. When working from
the TMG premises, Roberts was sometimes absent for certain periods - for his
own reasons – and did not book any appointments for Libourkine.
[35]
In the case of Connor Homes, supra,
of the eight workers whose appeals were heard, three of them had signed
contracts purporting to confer the status of independent contractor. The
judgment of the Federal Court of Appeal was delivered by Mainville J.A. who in
considering the issue of control ‑ at paragraphs 44 to 47, inclusive
– stated:
44. Despite
the stated intent of the parties to characterize their relationship as that of
independent contractors, the facts of this case suggest otherwise. Based on a
review of these facts, I cannot conclude that the Tax Court Judge erred in
finding that the concerned individuals were not providing their services to the
appellants as their own business on their own account. Rather, as a result of
the significant degree of control the appellants exerted over the three
individuals in the execution of their tasks, the limits on their ability to
profit, and the absence of any significant financial risks or investments, in
essence, these individuals were acting as employees of the appellants.
45. First,
it is clear from the record that the appellants exercised a significant degree
of control over the duties exercised by the individuals and the manner in which
these duties were carried out. Connor Homes drafted and issued its own Policies
and Procedures Manual, based on the requirements of the provincial legislation
relating to child and family services. This manual defined and dictated the
procedures to be followed with respect to the provision of services within the
homes. The manual was provided to the individuals, both area supervisors and
child and youth workers alike. As part of their contracts, the individuals were
required to abide at all times by the manual and the policies and the rules of
conduct it contained (Testimony of Robert Connor AB vol 2 page 175, lines 18 to
24, pages 191-192, lines 20 to 25; 1 to 20).
46. Beyond
the manual, the appellants also controlled the individuals’ duties on a
day-to-day basis. The appellants dictated administrative tasks and imposed
mandatory attendance at staff meetings to discuss work procedures, work
scheduling and day-to-day occurrences in the homes. The appellants also
provided guidance and instruction to the individuals regarding how to manage
difficult situations with clients, as well as marketing activities to be undertaken
on their behalf (Testimony of Rollie Allaire AB vol 2 page 414 line 15 to page
46; line 19; Zoe Fulton page 509 lines 10-16; Jodi Greer pages 463 and 464
lines 6 to 25 and 1 to 17).
47. The
degree of control that the appellants exercised over the work of the
individuals resembled that of an employer. Indeed, it was acknowledged at trial
that the duties exercised by the concerned workers were, in fact, the same as
those exercised by the appellants’ employees (Testimony of Robert Connor AB vol
2 page 207, lines 9-17).
[36]
It is obvious that this sort of control,
direction, guidance and instruction including marketing activities did not
exist in the within appeal.
[37]
In the case of Greenshield Windows and Doors
Ltd. v Canada (Minister of National Revenue – MNR), 2015 TCC 70, [2015] TCJ
No. 51 (QL), Justice Woods heard appeals by workers who were engaged as
telemarketers by the payor. With respect to the issue of control, Woods J., at
paragraphs 16 to 25, inclusive, set forth the facts prior to concluding, at
paragraph 26, as follows:
[16] The
control factor is often important in determining whether a worker is an
employee. The question to be decided is whether Greenshield had the ability to
control the manner in which the work was done. Based on the evidence as a whole,
I conclude that the control factor is consistent with the parties’ intention of
an independent contractor relationship.
[17] The
telemarketing position did not require specialized knowledge and it was often
filled by students who wanted part-time work. There was a very high rate of
turnover, with approximately 50 percent of telemarketers leaving with the first
month.
[18] As
mentioned earlier, the work was done in groups. Accordingly, weekly work
schedules were prepared by Greenshield in accordance with the telemarketers’
requests. There were two four-hour shifts each day, 10 to 2 and 5 to 9, with
one 15 minute break.
[19] It is
likely that the telemarketers were expected to notify Greenshield if they
subsequently were not able to attend at the scheduled time. I accept Mr. Solomon’s
testimony that many telemarketers did not do this.
[20] In
addition, since the work had to be performed in groups Mr. Hayes or a senior
telemarketer decided when they should take their 15 minute break.
[21] As for
tracking hours worked, the hours had to be tracked in some fashion because the
Workers were paid partly on an hourly basis and partly on commission.
[22] The
work entailed trying to obtain the consent of homeowners to have an estimated
prepared. Greenshield’s sales department would then follow up. The Workers
received minimal training for this. I accept Mr. Solomon’s testimony that it
did not make sense to invest time in training when there was a high turnover
rate.
[23] The
evidence reveals that Workers were given a sample of a “pitch” that they could use,
but that they were not required to use it and they typically developed their
own techniques. It is likely that the Workers learned from each other in this
regard.
[24] As for
supervision, there was general oversight and censure if Workers were doing
personal activities on the job, but there is no evidence that the Workers were
told how to do their job. Ms. Trapara was informed that Mr. Hayes could
listen in on calls, but there is no evidence that Greenshield could, or would,
interfere with the manner in which pitches were made.
[25] The
only meetings with Workers consisted of a 5 minute presentation at the start of
each shift in which relevant information, such as special sales promotions,
were provided to the Workers.
[26] When
the evidence is considered as a whole, I find that it is more consistent with
Greenshield not having the ability to control how the work was done. The
Workers could choose their hours of work and the manner in which the work was
done. This factor favours an independent contractor relationship.
[38]
The conclusion by Woods J. is stated at
paragraphs 35 and 36:
[35] In
weighing the evidence as a whole, I find that the relationship between
Greenshield and the Workers was consistent with their common intention that the
Workers be independent contractors.
[36] The factor that dominates in this case is control. The
Workers were able to determine their own work schedules and their own
telemarketing pitches. In such a loose relationship, I find that the Workers
were engaged as independent contractors.
[39]
In the above case, those facts referred to in
analyzing the degree of control were not sufficient to confirm the decisions by
the Minister that it favoured an employer-employee relationship. By contrast,
no similar circumstances pertaining to the issue of control existed in the
working relationship between Roberts and Libourkine, who was functioning as an
independent contractor.
[40]
In preparing for this appeal, Roberts could have
benefited from taking to heart the following admonition in the oft-quoted
couplet from Sir Walter Scott’s 1908 poem, Marmion: A Tale of Flodden Field
– Canto VI, XVII:
Oh, what a
tangled web we weave
When first we practice to deceive!
[41]
As Roberts spun increasing strands of fantasy in
the course of his testimony - let alone in cross-examination - he became
trapped in an intricate weave of contradictions, deception, self-serving
blather and outright lies from which he could not escape.
[42]
Based on the evidence and applying the relevant
jurisprudence, the decision of the Minister is confirmed and the appeal is
dismissed.
Signed at Sidney, British Columbia,
this 10th day of June 2015.
“D.W. Rowe”
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