EMPLOYMENT INSURANCE |
D & J Driveway Inc. v. M.N.R.
A-512-02
2003 FCA 453, Létourneau J.A.
26/11/03
7 pp.
Judicial review of Tax Court of Canada decision ([2002] T.C.J. No. 415) that for period at issue applicant held insurable employment or employment giving rise to pension entitlement--Contract of employment requiring existence of subordination relationship between payer and employees-- Concept of control key test used in measuring extent of relationship--Control of result and control of worker should not be confused--In case at bar applicant controlled results-- Control over actual performance of duties did not exist-- Work to be done involved delivering vehicle to customer and delivery service not subject to any control in performance of delivery duties--Apart from freedom to refuse delivery offer, delivery service not in any way dependent on applicant to obtain work--At most risked, for example, not having services used again if services provided or work performed inadequate --Legally incorrect to conclude relationship of subordination, and consequently contract of employment, existed when relationship between parties involved sporadic calls for services of persons not in any way bound to provide them, who could refuse them as they saw fit--Concluding contract of employment existed in such circumstances also not without serious and burdensome practical consequences for payer, especially as more often than not conclusion and resulting assessment for fringe benefits, such as income tax, employment insurance and pension plan, which payer must pay, retroactive in nature--Conclusion that no relationship of subordination existed sufficient to allow instant application, since existence of relationship essential feature of contract of employment--Judicial review allowed.