EMPLOYMENT INSURANCE |
Precision Gutters Ltd. v. M.N.R.
A-79-01, A-80-01
2002 FCA 207, Sexton J.A.
21/5/02
12 pp.
Appeal from Tax Court judgment dismissing appeal from assessments under Employment Insurance (Canada) and Canada Pension Plan, finding that number of individuals (installers) engaged by applicant Precision Gutters Ltd. to install building gutters employed by Precision under contract of service as distinguished from being independent contractors --Precision would negotiate contracts with customers and then hire installers to perform work--No guarantee of ongoing work for installer--Various forms of payment to single, multiple installers, with helpers: single, multiple cheques-- Application allowed--Tax Court Judge confused four-in-one test (Mirchandani v. Canada (Minister of National Revenue--M.N.R.), [2001] F.C.J. No. 269 (C.A.) (QL): degree or absence of control exercised by employer; ownership of tools; chance of profits; risk of loss) with integration test in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (C.A.): fourth test being integration of employee into alleged employer's business--Issue dealt with recently by Supreme Court of Canada in 67112 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 where Major J. indicated central question to be decided in cases such as these whether person engaged to perform services performing them as person in business on own account or performing them in capacity of employee--While neither Major J. in Sagaz nor MacGuigan J.A. in Wiebe Door completely rejected integration test, they found it would be difficult to apply--Tax Court Judge misunderstood four-in-one test, importance of integration test--Central question whether person engaged to perform services performing them as person in business on own account--Tax Court Judge correctly found control test favoured characterizing installers as independent contractors --Tax Court Judge erred in refusing to place any meaningful emphasis on importance of tools owned by installers, which were essential to installation of gutters--Tax Court Judge erred in holding that chance of profit and risk of loss criteria favouring characterization of installers as employees--As to integration, question not whose business is it, but rather whether person who engaged himself to perform services performing them as person in business for own account--Two businesses herein: manufacturing gutters and installing them--If properly applied, integration test revealing that installers independent contractors operating own installation business--Application of both four-in-one test from Wiebe Door and integration test must result in conclusion installers were independent contractors.