Isaac,
C.J.:—This
is
a
section
28
application
to
review
and
set
aside
a
decision
of
the
Tax
Court
made
on
June
7,
1990.
The
issue
before
the
learned
Tax
Court
judge
on
the
appeal
from
the
assessment
before
him
was
whether
some
or
all
of
the
68
persons
named
on
the
list
filed
as
Exhibit
A-1
were
employees
or
independent
contractors.
It
was
common
ground
that
this
appellant
had
the
onus
of
showing
that
the
persons
whose
names
appeared
on
the
list
were
independent
contractors.
To
discharge
that
onus
the
appellant
called
five
witnesses
and
led
some
evidence
which
was
said
to
be
representative
of
the
relationship
between
the
appellant
and
other
persons
named
in
the
list
but
who
were
not
called
as
witnesses.
The
learned
Tax
Court
judge
concluded,
based
on
the
tests
laid
down
in
Wiebe
Door
Services
Ltd.
v.
M.N.R.,
[1986]
2
C.T.C.
200,
87
D.T.C.
5025,
that
the
five
persons
who
testified
were
independent
contractors.
With
respect
to
the
persons
whose
names
appeared
on
the
list
but
who
did
not
testify,
the
learned
Tax
Court
judge
concluded
that
there
was
insufficient
evidence
to
support
a
conclusion
that
those
persons
were
either
employees
or
independent
contractors.
In
light
of
that
conclusion
the
learned
Tax
Court
judge
decided
that
he
could
make
no
determination
with
respect
to
them
and
he
purported
to
dispose
of
that
aspect
of
the
case
on
that
basis.
In
our
view
there
was
evidence
before
the
learned
Tax
Court
judge
upon
which
he
could
have
made
the
determination
he
was
required
to
make.
In
refusing
to
do
so
he
declined
the
jurisdiction
that
was
undoubtedly
his
and
thus
fell
into
error.
In
the
result
the
section
28
application
is
granted.
The
decision
below,
in
so
far
as
it
relates
to
the
persons
who
did
not
testify,
is
set
aside,
and
the
matter
is
referred
to
the
learned
Tax
Court
judge
for
redetermination
in
a
manner
not
inconsistent
with
these
reasons.
Appeal
allowed.
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