Date: 20040505
Docket: A-253-03
Citation: 2004 FCA 183
CORAM: LINDEN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
DEWDNEY TRANSPORT GROUP LTD.
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
Heard at Vancouver, British Columbia on May 5, 2004.
Judgment delivered from the Bench at Vancouver, British Columbia on May 5, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date: 20040505
Docket: A-253-03
Citation: 2004 FCA 183
CORAM: LINDEN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
DEWDNEY TRANSPORT GROUP LTD.
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on May 5, 2004)
LINDEN J.A.
[1] This application for judicial review challenges a judgment of the Tax Court of Canada, dismissing the Applicant's appeal, holding that Susan Dunn was an employee of the Applicant and, hence, insurable under paragraph 5(1)(a) of the Employment Insurance Act.
[2] The worker in this case, Ms. Dunn, was hired by the Applicant to deliver mail for it pursuant to a contract it had with Canada Post. The worker, it was found, was paid $8.50 per hour for her work. She used a truck supplied by the Applicant to pick up the mail each morning at Canada Post and to deliver it. The Applicant bore all the expenses associated with the truck. Ms. Dunn was found by the Judge to be either under the Applicant's control or under the control of Canada Post employees. She had no opportunity to share in the profit or loss of the enterprise, it was found, in spite of the argument of the Applicant to the contrary.
[3] In our view, the Tax Court Judge correctly identified the principles that are applicable to the issue before the Court, that is, the Wiebe Door Services v. Minister of National Revenue, [1986] 3 F.C. 553 (F.C.A.) test as elaborated by Justice Major in 671122 Ontario Limited v. Sagaz Industries [2001] 2 S.C.R. 983 and applied by this Court in Precision Gutters Ltd. v. Minister of National Revenue [2002] F.C.J. No. 771 (per Sexton J.A.), that is, utilizing the enumerated factors, was she "in business on her own account.".
[4] The Tax Court Judge properly applied the test on the facts as he found them. Despite the best efforts of the Applicant to create an independent contractor relationship, the Judge concluded that Ms. Dunn was an employee, not in business on her own account. The Applicant essentially disagrees with the findings of fact, which are, however, unimpeachable, there being no evidence of any palpable and overriding error.
[5] This application will, therefore, be dismissed with costs of $1,000 payable to the Respondent.
(Sgd.) "Allen M. Linden"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-253-03
STYLE OF CAUSE: DEWDNEY TRANSPORT GROUP LTD. v. MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 05, 2004
REASONS FOR JUDGMENT : LINDEN J. A.
DATED: May 05, 2004
APPEARANCES:
Mr. Narinder Jaswal FOR APPLICANT
Mr. Raj Grewal FOR RESPONDENT
Ms. Kristina Forman-Gear
SOLICITOR OF RECORD:
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada