Roberts v. M.N.R.

Roberts v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2015-06-10
Neutral citation
2015 TCC 142
File numbers
2014-3391(EI)
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Employment Insurance Act
Decision Content
Docket: 2014-3391(EI)
BETWEEN:
MARK ROBERTS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
MICHAEL LIBOURKINE,
Intervenor.
Appeal heard on May 5, 2015, at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
For the Appellant:
The Appellant himself
Counsel for the Respondent:
Leonard Elias
For the Intervenor:
The Intervenor himself
JUDGMENT
The appeal is dismissed and the decision of the Minister of National Revenue, dated June 17, 2013, on an appeal under the Employment Insurance Act, is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 10th day of June 2015.
“D.W. Rowe”
Rowe D.J.
Citation: 2015 TCC 142
Date: 20150610
Docket: 2014-3391(EI)
BETWEEN:
MARK ROBERTS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
MICHAEL LIBOURKINE,
Intervenor.
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 SCR 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 lig