Docket: A-209-13
Citation:
2014 FCA 248
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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ACANAC INC.
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Appellant
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and
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THE MINISTER OF NATIONAL REVENUE
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Respondent
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and
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AARON C. MOULAND
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Intervener
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REASONS FOR JUDGMENT
NEAR J.A.
[1]
Acanac Inc. (the appellant) appeals from the May
16, 2013 decision of the Tax Court of Canada, in which Justice Campbell Miller
(the judge) dismissed its appeals made under section 103 of the Employment
Insurance Act, S.C. 1996, c. 23 and section 28 of the Canada Pension
Plan, R.S.C., 1985, c. C-8 (2013 TCC 163).
[2]
The appellant seeks to overturn the decision of
the judge on the basis that he made a series of fundamental errors in his
factual determinations and in his weighing of the evidence before him. The
appellant further alleges that the judge made procedural errors related to the
conduct and management of the trial.
[3]
At issue was whether two workers, Mr. Mouland
and Mr. Westcott, were insurable and pensionable employees pursuant to the
above-noted legislation. In my view, the judge applied the correct legal test:
the test set out in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C.
553, 70 N.R. 214. As the Supreme Court of Canada has stated, in applying the Wiebe
Door test, the central question is “whether the
person who has been engaged to perform the service is, in actual fact,
performing them as a person in business on his own account” (671122
Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R.
983 at para. 47; see also 1392644 Ontario Inc. (Connor Homes) v. Canada
(National Revenue), 2013 FCA 85, 444 N.R. 163 at para. 41).
[4]
In large measure, the appellant is asking this
Court to re-weigh the evidence considered by the judge in his application of
the facts to the proper legal test. The appellant asks this Court to
re-consider the evidence as to the nature of the enterprise (an internet-based
support service), the degree of control the appellant exercised over the
workers, the nature of the tools used, the training and support provided to the
workers, and the intention of the parties regarding the nature of the
relationship.
[5]
The judge’s assessment of evidence and the
weight accorded to such evidence in applying the legal test are to be given
great deference. This Court may only interfere if the judge committed palpable
and overriding errors (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
S.C.R. 235 at para. 10). In my view, there is no obvious error, or error going
to the very core of the outcome of the case, in the judge’s assessment and
weighing of the evidence with respect to any of the matters raised by the
appellant. The conclusions reached on these matters were amply supported by the
evidence before the judge. There is no reason to intervene on this basis.
[6]
The appellant also asserts that the judge erred in
the management of the trial of this case. The appellant submits that the judge
should have admitted the entire 183 pages of a document (a Spark chat log)
brought to the Court by Mr. Mouland (the intervener and a witness for the
respondent) rather than only the first 10 pages, and should have accorded the
appellant a longer adjournment to review the document. The respondent submitted
this evidence during its examination of Mr. Mouland for the purpose of showing
the existence of a communication system between the workers and the
supervisors. In addition, the appellant takes issue with the decision of the
judge not to hear testimony of its expert witness, Martin Cleaver.
[7]
In my view, the decisions of the judge regarding
the Spark chat log were fairly made on the circumstances that were presented to
him during the trial. Further, it is important to note that this case was
conducted pursuant to the informal procedure outlined in section 18 of the Tax
Court of Canada Act, R.S.C., 1985, c. T-2. Subsection 18.15(3) of the Act
sets out that the strict rules of evidence do not apply in the informal
procedure; the overriding consideration is whether the procedure followed by
the judge was fair. The judge considered the Spark chat log and the submissions
by counsel, and decided that only the first 10 pages were required for the
limited purpose for which the evidence was being tendered. There is no reason
to interfere with that exercise of discretion as to either the extent of the
Spark chat log accepted or the length of the adjournment granted. It is worth
noting that the evidence was adduced by the respondent for the limited purpose
of showing an element of control and supervision over the workers by the
appellants.
[8]
Finally, the appellant submits that the judge
should have allowed its expert witness, Martin Cleaver, to testify. The
appellant argues that the decision of the judge not to allow its expert to
testify precluded the appellant from adducing relevant evidence illustrating
the novel circumstances of internet-based support services.
[9]
It is evident that the judge was alive to the
appellant’s argument that knowledge-based work, such as the internet-based
support service at issue in this matter, could raise novel considerations and
was open to the appellant making submissions in this regard. In my view, the
judge was not attempting to limit the appellant’s argument with respect to the
issue of novelty. Rather, the exclusion of the appellant’s expert was premised
on the conclusion reached by the judge, after he considered counsel’s
submissions, that expert testimony was neither necessary nor helpful given that
the workers involved could provide similar evidence (see pages 198-200 of the
Appeal Book). Put another way, he considered that he could determine the issue
with only the workers’ evidence before him. Further, the judge waited until he
had heard the workers’ evidence before making his final decision not to hear
the expert’s testimony. The judge also had real concerns about the
admissibility of the expert report.
[10]
I see no reason to disagree with the judge’s
evaluation. The judge was aware of the correct principles governing the
admission of expert evidence and applied those principles in an acceptable way
to the circumstances before him. We see no reason to intervene on this basis.
[11]
Therefore I would dismiss the appeal with costs
to the respondent.
"David G. Near"
“I agree.
Johanne Trudel J.A.”
“I agree.
David Stratas J.A.”
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