Wiebe Door Services Ltd. v. Minister of National Revenue, (1986) 70 N.R. 214 (FCA)

• Judge: MacGuigan, Pratte and Mahoney, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 18, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 70 N.R. 214 (FCA);[1986] 3 FC 553;[1986] 2 CTC 200;[1986] 5 WWR 450;[1986] CarswellNat 366;[1986] FCJ No 1052 (QL);41 DTC 5025;39 ACWS (2d) 256

Wiebe Door Services Ltd. v. MNR (1986), 70 N.R. 214 (FCA)

MLB headnote and full text

Wiebe Door Services Ltd. v. Minister of National Revenue

(A-531-85)

Indexed As: Wiebe Door Services Ltd. v. Minister of National Revenue

Federal Court of Appeal

MacGuigan, Pratte and Mahoney, JJ.

June 18, 1986.

Summary:

Wiebe was in the business of installing and repairing overhead doors. It carried out its business through the services of a considerable number of door installers and repairers with whom it had an understanding that they would be running their own businesses and would be responsible for their own taxes and any contributions for workers' compensation, unemployment insurance and Canada Pension Plan. Wiebe was assessed for the payment of unemployment insurance premiums and Canada Pension Plan contributions. Wiebe claimed that the 12 persons in relation to whom he was assessed were independent contractors rather than employees. The Tax Court found that they were employees and Wiebe applied to have the decision set aside.

The Federal Court of Appeal allowed the application. The court found that the applicable test was to examine the whole of the various elements which constituted the relationship between the parties. The Tax Court was wrong in applying the integration test.

Courts - Topic 4101

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - S. 28 appeal - Scope of - The Federal Court of Appeal stated that it could not, on a s. 28 application, engage in an examination of the evidence unless a particular result was so inevitable on the facts that any other conclusion would be perverse - See paragraph 19.

Unemployment Insurance - Topic 448

Assessments and premiums - Insurable employment - Employment that is not employment under a contract of service - Wiebe was assessed for the payment of unemployment insurance premiums and Canada Pension Plan contributions - Wiebe claimed that the 12 persons in relation to whom he was assessed were independent contractors rather than employees - The Federal Court of Appeal stated that the test to determine whether a contract is one of service or for services was to examine the whole of the various elements which constituted the relationship between the parties - The degree of control over the worker, ownership of tools, the worker's chance of profit or risk of loss and whether the work performed was an integral part of the business or simply accessory to it were useful subordinate criteria - See paragraphs 9 to 13.

Cases Noticed:

Massey v. Crown Life Insurance Co., [1978] 1 W.L.R. 676, folld. [para. 2].

Narich Pty. Ltd. v. Commissioner of Pay-Roll Tax (1983), 58 A.L.J.R. 30, folld. [para. 2].

R. v. Walker (1858), 27 L.J.M.C. 207, refd to. [para. 6].

Hopital Notre-Dame de l'Esperance and Theoret v. Laurent et al., [1978] 1 S.C.R. 605; 17 N.R. 593, refd to. [para. 6].

Montreal v. Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161, folld. [para. 8].

Stevenson, Jordan and Harrison, Ltd. v. MacDonald and Evans, [1952] 1 T.L.R. 101, refd to. [para. 10].

Cooperators Insurance Association v. Kearney, [1965] S.C.R. 106, refd to. [para. 10].

Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R.(2d) 129, refd to. [para. 12].

Re/Max Real Estate Calgary South v. M.N.R., N.R. 1069, refd to. [para. 14].

Sairoglou v. M.N.R., N.R. 1085, refd to. [para. 14].

Terra Engineering Laboratories Ltd. v. M.N.R., N.R. 858, refd to. [para. 14].

Barnard v. T.M. Energy House Ltd., [1982] 4 W.W.R. 619 (B.C.C.C.), refd to. [para. 14].

Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732, folld. [para. 17].

Ferguson v. John Dawson & Partners (Contractors) Ltd., [1976] 3 All E.R. 817, refd to. [para. 17].

Authors and Works Noticed:

Atiyah, Vicarious Liability in the Law of Torts (1967), p. 41 [para. 7].

Bendel, Michael, The Dependent Contractor: An Unnecessary and Flawed Development in Canadian Labour Law (1982), 32 U.T.L.J. 374 [para. 5].

Douglas, William O., Vicarious Liability and the Administration of Risk (1928-9), 38 Yale L.J. 584 [para. 8].

Fleming, The Law of Torts (2nd Ed. 1961), pp. 328-329 [para. 10].

Khan, A.N., Who is a Servant? (1979), 53 Austr. L.J. 832 [para. 12].

Magnet, Joseph Eliot, Vicarious Liability and the Professional Employee (1978-79), 6 C.C.L.T. 208 [para. 5].

Counsel:

Michael A. Wedekind, for the applicant;

Larry Huculak, for the respondent.

Solicitors of Record:

Foster, Wedekind, Calgary, Alberta, for the applicant;

Frank Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on May 1, 1986, at Calgary, Alberta, before Pratte, Mahoney and MacGuigan, JJ., of the Federal Court of Appeal.

On June 18, 1986, MacGuigan, J., delivered the following judgment for the Federal Court of Appeal.