Tax Court of Canada Judgments

Date: 19990226

Docket: 97-1416-UI

BETWEEN:

MAYNE NICKLESS TRANSPORT INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for judgment

Porter, D.J.T.C.C.

[1] This appeal was heard at Montréal, Quebec, on August 6, 1998.

"... Johannes Van Der Woerd was employed under a contract of service, and therefore he was an employee."

[3] The established facts reveal that the Appellant at the material time, amongst other things, operated a courier and messenger service in the City of Calgary, Alberta, and that the worker worked as a courier for them in that city. His duties were to pick up and deliver mail and packages within the city. The Appellant claims that the worker and other couriers like him, worked in this capacity, as independent contractors under contracts for services, rather than as employees and that accordingly no unemployment insurance premiums are required to be paid. The Minister has decided to the contrary that the arrangements amounted to contracts of service and that accordingly unemployment insurance premiums are due and payable by the Appellant. This case was advanced as something of a test case to be decided upon its own merits but with the awareness that there are several similar cases presently pending.

The Law

[4] The manner in which the Court should go about deciding whether any particular working arrangement is a contract of service and thus an employer/employee relationship or a contract for services and thus an independent contractor relationship, has been clearly laid out by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025. The test to be applied has been further explained by that Court in Moose Jaw Kinsmen Flying Fins Inc. v. M.N.R., 88 DTC 6099. There are, following these cases, numerous decisions of this Court, some of which have been cited by counsel, which demonstrate how these appellate guidelines have been applied. In the Moose Jaw Kinsmen Flying Fins Inc. case, above, the Federal Court of Appeal said this:

"[Analysis]

The definitive authority on this issue in the context of the Act, is the decision of this Court in Wiebe Door Services Ltd. v. The Minister of National Revenue, 87 DTC 5025. MacGuigan J. speaking on behalf of the Court, analyzed Canadian, English and American authorities, and, in particular, referred to the four tests for making such a determination enunciated by Lord Wright in City of Montreal v. Montreal Locomotive Works Ltd., [1974] 1 D.L.R. 161 at 169-70. He concluded at page 5028 that:

Taken thus in context, Lord Wright's fourfold test [control, ownership of tools, chance of profit, risk of loss] is a general, indeed an overarching test, which involves "examining the whole of the various elements which constitute the relationship between the parties". In his own use of the test to determine the character of the relationship in the Montreal Locomotive Works case itself, Lord Wright combines and integrates the four tests in order to seek out the meaning of the whole transaction.

At page 5029 he said:

...I interpret Lord Wright's test not as the fourfold one it is often described as being but rather as a four-in-one test with emphasis always retained on what Lord Wright, supra, calls "the combined force of the whole scheme of operations," even while the usefulness of the four subordinate criteria is acknowledged.

At page 5030 he had this to say:

What must always remain of the essence is the search for the total relationship of the parties.

He also observed "there is no escape for the trial judge, when confronted with such a problem, from carefully weighing all the facts."

...like MacGuigan J. we view the tests as being useful subordinates in weighing all of the facts relating to the operations of the Applicant. That is now the preferable and proper approach for the very good reason that in a given case, and this may well be one of them, one or more of the tests can have little or no applicability. To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate."

[5] The nature of the tests referred to by the Court can be summarized as follows:

a) The degree or absence of control exercised by the alleged employer;

b) Ownership of tools;

c) Chance of profit and risk of loss;

d) Integration of the alleged employee's work into the alleged employer's business.

[6] I also take note of the further words of MacGuigan J., in the Wiebe case, above, where he approved the approach taken in the English courts:

"Perhaps the best synthesis found in the authorities is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732, 738-9:

The observations of Lord Wright, of Denning L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him."

[7] To this I would add the words of Decary, J.A. in Charbonneau v. Canada (M.N.R.) [1996] F.C.J. No. 1337, where speaking for the Federal Court of Appeal he said this:

"The tests laid down by this Court ... are not the ingredients of a magic formula. They are guidelines which it will generally be useful to consider, but not to the point of jeopardizing the ultimate objective of the exercise, which is to determine the overall relationship between the parties. The issue is always, once it has been determined that there is a genuine contract, whether there is a relationship of subordination between the parties such that there is a contract of employment ... or, whether there is ..., such a degree of autonomy that there is a contract of enterprise or for services. ... In other words, we must not pay so much attention to the trees that we lose sight of the forest. ... The parts must give way to the whole."

Review of the Evidence

[8] In the Reply to the Notice of Appeal the Minister was said to have relied on the following facts:

"(a) the facts admitted, supra;

(b) the Worker is not related to the Appellant and does not have any financial interest in the Appellant;

(c) the Appellant operates a courier and messenger service in the City of Calgary;

(d) the Worker's duties were to pick up and deliver mail and packages within the City of Calgary;

(e) the Worker was required to work from 8:00 a.m. to about 4:30 p.m. Mondays through Fridays;

(f) the Appellant's dispatcher instructed the Worker on deliveries and pick-ups throughout a work day;

(g) the Appellant determined and set the prices for delivery and provided the Worker with a copy of their fee schedule;

(h) the Appellant set priorities and set time frames for deliveries;

(i) the Worker could not set his own prices or alter the charges set by the Appellant;

(j) the Worker was paid 67% of the delivery charges and was paid every two weeks by cheque from the Appellant;

(k) the Worker was required to be in a specific zone in the City of Calgary and report by radio to the Appellant's dispatcher by 8:00 a.m. each morning;

(l) when the Worker wanted a break he was required to report to the dispatcher to obtain approval;

(m) the Appellant provided a uniform to the Worker and the Worker was required to wear the uniform while performing services for the Appellant;

(n) the Worker was required to display the Appellant's sign on his vehicle when performing duties for the Appellant;

(o) the Worker could not work for another courier company while he was working for the Appellant;

(p) the Worker was not allowed to hire or send a replacement driver to drive his vehicle;

(q) the Worker was required to notify the dispatcher if he was unable to work on a certain day;

(r) the Worker was required to request and obtain approval for vacation time from the Appellant;

(s) the Worker was required to use the Appellant's daily call sheets or manifests;

(t) the Worker was required to submit the manifests or daily call sheets to the Appellant at the end of each working day;

(u) the daily call sheets or manifests provided information concerning each pick up and drop off made by the Worker on a given day;

(v) the Appellant supplied a radio to the Worker and a fee of $13.75 bi-weekly was withheld for the use of the radio;

(w) the Worker was not free to decide which deliveries he would work on and could not refuse an assigned delivery;

(x) the Worker was required to attend a training session that was provided by the Appellant and was paid $14.00 per hour while attending the training session;

(y) the Worker was a member of a union and union dues were withheld from the Worker's pay bi-weekly."

[9] The facts admitted by the Minister are as follows:

"1. Express Airborne was a division of Mayne Nickless Transport Inc.;

2. Express Airborne was generally responsible for the same day pick-up and delivery of envelopes and parcels within the City of Calgary;

3. The pick-up and delivery of these items was undertaken by drivers called messenger owner-operators;

7. Mr. Van Der Woerd's vehicle was not painted Express Airborne's colours;

9. Mr. Van Der Woerd received for services provided a percentage of the revenue he generated;

11. This revenue was generated by providing pick-up and delivery service to various customers as assigned on a daily basis from the dispatch board. The revenue Mr. Van Der Woerd generated was dependent upon his availability at any point in time;

13. Mr. Van Der Woerd could be absent from time to time and he did take a few days off occasionally;

16. The Department of Human Resources Development Canada requested a ruling regarding the insurability of Johannes Van Der Woerd's employment during the period from November 1, 1994 to December 31, 1995;

17. On November 12, 1996, the Tax Services Office of Revenue Canada determined that Mr. Van Der Woerd's employment was insurable under paragraph 3(1)(a) Unemployment Insurance Act, since he was an employee performing services under a contract of service. Copy of the ruling is included herewith;

18. The Appellant submitted, on February 6, 1997, a letter to the Minister of National Revenue appealing the ruling. Copy of the letter is included herewith;

19. On April 30, 1997, the Minister of National Revenue determined that Johannes Van Der Woerd was employed under a contract of service and therefore he was an employee. Copy of the ruling is included herewith;"

[10] The Minister also admitted paragraphs 4, 5, and 6 of the amended Notice of Appeal except that he denied the worker was an owner/operator. These read as follows:

"4. Mr. Van Der Woerd provided services as messenger (owner-operator) to Express Airborne from November 1, 1994 to December 31, 1995;

5. Mr. Van Der Woerd as a messenger owner-operator had to use his own vehicle and supported all the expenses related to its operation when he agreed to provide his services to Express Airborne;

6. Furthermore, if Mr. Van Der Woerd's vehicle broke down, and if he could not provide a replacement vehicle, Express Airborne would have used the services of another messenger owner-operator without any payment to Mr. Van Der Woerd;"

[11] The Minister admitted paragraph 8 of the amended Notice of Appeal except he stated the fixed fee charged for the rental of the radio was $13.75 every two weeks rather than every week. Paragraph 8 reads as follows:

"8. Mr. Van Der Woerd had to rent a radio from express Airborne and the company charged a fixed fee of $13.75 per week through deduction from his cheques;"

[12] The Minister admitted paragraph 10 of the amended Notice of Appeal except that he stated the percentage paid was 67% not 63%. Paragraph 10 reads as follows:

"10. Mr. Van Der Woerd was paid a commission of 63% of the gross revenue he generated on a daily basis;"

[13] With respect to Paragraph 15 of the amended Notice of Appeal which reads as follows:

"15. Although Mr. Van Der Woerd had the option of being covered by an independent insurance company, he opted for the coverage offered by Express Airborne's blanket cargo bond and was charged $10.00 per month for this coverage through deduction from his cheques."

the Minister stated as follows:

"7. In response to the allegations of fact contained in paragraph 15 of the Notice of Appeal, he admits that the Worker was covered by Express Airborne's cargo bond and was charged $10.00 per month for this coverage through deduction from his cheques and otherwise has no knowledge of and puts in issue the allegations contained therein."

[14] The Minister denied all the other allegations in the amended Notice of Appeal.

[15] Unless they are refuted on the balance of probabilities by the evidence, the Court is bound to accept the facts set out in the Reply to the Notice of Appeal including the facts admitted by the Minister contained in the Amended Notice of Appeal with the exceptions noted by the Minister.

[16] The Appellant for its part admitted the following facts upon which the Minister was said to rely, in the Reply to the Notice of Appeal, namely paragraphs (b), (c), (which it said was incomplete), (d), (incomplete), (i), (m), (n), (q), (s), (u) and (y). The rest the Appellant either denied or said that they could not be admitted.

[17] Two witnesses gave evidence on behalf of the Appellant, namely Rob Ashe, who was the branch manager of the Calgary operation at the time in question, and Ross Wace who became the Manager of Human Resources for the Company in January 1996. I noted that this was after the material time. Rob Ashe I found to be a reliable and honest witness who had a personal knowledge of the situation. He was no longer with the corporation, having taken some employment in a different field altogether, with a company completely unrelated to the Appellant. He travelled all the way from Calgary to Montréal in order to give his evidence and I was impressed by his forthright manner. Similarly Ross Wace appeared to me to be an honest and reliable witness, although I appreciated that he had no direct knowledge of the events in Calgary.

[18] As a general background, I gleaned from the evidence that the drivers owned and operated their own vehicles in the course of their work. They fully maintained their own vehicles. They paid for the insurance, they paid their own gas and for all their own repairs and damage to the vehicles. They received nothing from the Appellant as reimbursement for these expenses. Furthermore, they deducted these expenses from their income on their individual tax returns. The Appellant did not dictate or tell them what vehicles they could or could not use and there was a large divergence of vehicles, from small compacts through mini-vans to trucks, used by the drivers. The only consideration given by the Appellant to the type of vehicle used was in the commission percentage negotiated with the drivers. Those with larger vehicles, which were more expensive to operate, were able to negotiate a slightly higher rate. Apart from that, the drivers were on their own as to the type of vehicle they used and the expenses incurred for running it. They needed no permission to change their vehicle. In addition there were magnetic signs available as well as decals and window stickers advertising the name of the Appellant but according to Rob Ashe none of these were permanent nor were any drivers obligated to put them on their vehicles.

[19] The agreement between the drivers and the Appellant was set up on the basis of the drivers being independent contractors. Clause 2.03 of the contract reads as follows:

"2.03 Relationship

Express Airborne (the Principal) and the Owner-Operator hereby acknowledge and agree that this agreement is a contract for services and the Owner-Operator shall for all purposes of this agreement be deemed an independent contractor. This agreement shall not be construed in any respect to create between Express Airborne and the Owner-Operator, a legal relationship of partnership, employer and employee master and servant or principal and agent."

[20] The simple fact that the contract refers to the relationship being one of independent contractors, does not necessarily mean that is so. The Court is clearly not bound by the mere name given to the situation by the parties. The substance of the contract has to be examined and it is the substance not the form which will be the deciding factor. However in the absence of there being clear evidence to the contrary the Court should give due consideration to the expressed intention of the parties.

[21] It would perhaps be useful now, to deal with the evidence as it related to the facts in dispute, upon which the Minister was said to rely in the Reply. Dealing first with items (c) and (d) it was apparent from the evidence that the business of the Appellant involved far more than a courier business in Calgary. By and large however these two items would appear to be correct.

[22] Item (e) was disputed in the sense that although these were the general hours during which the drivers were expected to be available, they were not mandatory hours. It was up to the individual driver to decide if he was going to work on any particular day. If they were not going to work they were asked to check in before hand and let the dispatcher know. They did not need permission to take time off. However if they were going to work on a particular day then they were required to check in with the dispatch by 8:00 a.m. This was so that the company could organize its affairs for the day. They were then expected to remain available until 6:00 p.m. although the dispatcher might release them earlier if things were quiet. On the other hand if they wanted to take time off for lunch vacations, or anything else that was up to them. All they were asked to do was let the dispatch know. No doubt if they wanted to book time out when things were busy they were discouraged from doing so, but the point was that they were able to make the decision themselves. Thus where the Minister was informed that the drivers were 'required', that was somewhat incorrect. Perhaps 'expected' or 'requested' would have been more accurate.

[23] With regard to item (f) once the driver had checked in with the dispatcher then he obtained his work from that source. It was not so much a case of being instructed but rather being available and then obtaining an assignment. The dispatcher would simply receive the call from the customer and then process the pickup and delivery out to a driver who was in the area and available to take it. I understood from the evidence that the dispatch was more like a clearing house putting customers in touch with drivers. How the driver then went about the task was up to him, such as the route he took and the speed at which he travelled. The evidence revealed that 'assigned' would be a more accurate word than 'instructed'.

[24] I find on the evidence that generally speaking the Appellant did determine and set the prices as per item (g). However there were often additional services, such as time of delivery and waiting time which the drivers might often negotiate with the customers directly. I am not of the view that very much hangs on this point.

[25] With regard to item (h), I do not think that this involves very much more than setting up prices for expedited deliveries. If an expedited or rush delivery was picked up for which a larger fee was charged to the customer then that did take priority over other deliveries.

[26] With regard to item (j) each driver was paid a percentage of the delivery fee charged to the customers. That percentage ranged from 63% to 67%. This would depend upon what was negotiated with the company, and took into account such things as experience and size of vehicle. Rob Ashe was definite that the percentage paid to the driver the subject of this appeal was 63%. I accept his evidence on this point but again, I do not think very much hangs on the difference. The important point to understand is that all these drivers were paid by commission, by the piece. If they did deliveries they were paid. If they did not, they were not paid. Nonetheless it is clear from the Act that employment, even when paid by the piece, is still insurable employment.

[27] The zones referred to in item (k) do not appear to have been dealt with in the evidence, and thus for what it is worth that fact stands as set out in the Reply.

[28] Dealing with item (l) it was clear from the evidence that permission was not needed from the dispatcher to take a break. It was only a matter of common sense that a driver would call the dispatcher to advise of their intention to take a break. No doubt there was a certain element of cooperation needed here. However cooperation and permission should not be confused.

[29] Item (o) is somewhat misleading as it is expressed. The witness explained that for obvious reasons when a driver was signed on with their dispatcher he could not at the same time work for a rival company. That just simply would not have worked. However once a driver signed off with dispatch he or she was free to do work with whatever other company they chose, and indeed some did.

[30] Similarly, with respect to item (p) the witness Ashe explained the difficulty with a driver arranging for a substitute driver. The drivers had to be bonded. They also had to be free from any criminal record. It was impossible for the Appellant to do the necessary checks, at short notice. Thus whilst in principle they had no objection, it was the impracticality of setting up such an arrangement that prevented it being done.

[31] With respect to item (r), I have basically dealt with this already. Approval was not required. Cooperation and notification was.

[32] Dealing with item (t), it was clear from the evidence that the drivers were asked to complete manifests with respect to each item delivered and to have the recipients sign the same. This was no doubt for their own protection. However it was also the method utilised by the company to sort out how much the driver should be paid. All extra charges were for example endorsed on the manifest. There was a drop box where the drivers could drop off their manifests, and they did so at their convenience knowing that if they did not submit them they would not be paid. It also served to regulate cash payments from customers. They were allowed to keep these and they were credited against amounts owing to them from the Appellant. Thus the question of manifests was an accounting one, not a supervisory situation.

[33] The matter of the two-way radio supplied by the Appellant to the drivers at a bi-weekly fee of $13.75, does not appear to have been contested in evidence.

[34] The evidence again revealed that a driver was free to refuse an assignment if he chose to take some time out. However if he was signed on he was expected to accept and carry out his assignments. Item (w) was thus worded somewhat incorrectly.

[35] Nothing in the evidence touched on item (x) relating to training, and thus this stands.

[36] That was the evidence as it related to the various facts alleged and admitted by the parties in the Notice of Appeal and the Reply. I now turn to consider the evidence given by the witnesses on remaining aspects of the working arrangement.

[37] Rob Ash portrayed for the Court the differences, as he saw them, between full-time office employee and the drivers. He said that he had between ten and eleven full-time employees working in the office and on any particular day had ten drivers signed on. He did not say how large the pool of drivers was but I took it that it was not necessarily the same ten who were on every day. In the head office there were two dispatchers, three people working in accounting, two who worked in sales and the rest in general administration like himself. These employees received all the usual fringe benefits including AHC, Dental Plan, Pension Plan and long term disability. They paid into these plans but the company also paid a portion. It was obligatory for them. They were covered by the Canadian Labour Code and received amongst other things statutory vacation pay.

[38] On the other hand the drivers did not receive any of these benefits. They were offered a benefits plan, which they could join but they were required to pay 100% of the premiums. It was entirely voluntary on their part and the Appellant paid nothing into it on their behalf. A little over half the drivers opted in; the rest did not. They also received no holidays or other benefits under the Canadian Labour Code. They were covered by and paid into the Alberta Workman's Compensation program as they were required to be covered even in the capacity of independent contractors.

[39] The drivers were members of the TCU union. There was an express category of membership in the union relating to owner/operators, and they had their own collective agreement with the company which was considerably different and far less comprehensive than the agreement with the regular employees. It seemed to provide some minimal protection for the drivers in their working arrangements with the Appellant.

[40] The income received by the drivers both gross and net after expenses, varied considerably. It depended upon how efficient they were in getting about the city, how well they knew the areas, how good drivers they were, and how well they maintained their vehicles. In addition they did their own promotions, by way of gifts to the reception personnel of customers as well as taking customers to lunch, all of which they paid, themselves.

[41] The hiring process was different between the regular employees and the drivers. The former required references which were checked before the person was hired. The drivers did not. The drivers on the other hand were required to have a cargo bond and needed a clean driving record. They were able to pay for their bond through the company or they could purchase it elsewhere. Thus they had a measure of independence here also.

[42] One further significant aspect of the working arrangement of the drivers, in my mind was the liability issue. They were responsible for all loss and damage not only to their own vehicles but also to their cargoes.

[43] Much was made by counsel over the issue of bad debts. Once the manifest was turned into the Appellant by the driver, the company would receive payment from the customer. It also paid out a percentage to the driver, whatever had been agreed upon. It paid this amount regardless of whether it collected from the customer or not. Counsel for the Minister saw this as an example of how it was not the driver's business. Ross Wace explained this policy. He said that it was similar to the situation where at times, when there was no driver available, they would engage a competitor or a taxi to make the delivery. The company had two contracts; one with the customer who was responsible to the company for payment and one with the transporter whether it be a regular driver or a taxi cab to do the actual transporting, and to whom the company was responsible for payment regardless of whether it, in turn, was paid by its customer. I will return to this momentarily as I find that it is at the heart of what was taking place in this working arrangement with the drivers.

[44] Those then are the significant facts that I took from the evidence. I turn now to consider how the law applies to these facts. As I say I have no hesitation in finding these facts in accordance with the evidence given by the two witnesses.

Application of the Law to the Facts

[45] When I consider the control portion of the tests enunciated above, I do not find any great measure of control exercised by the Appellant over the drivers. In fact it seems to me that the drivers had a significant amount of independence to decide whether and when they would work and, if signed on for work, how they carried out their work. Obviously once they signed on with the dispatcher there had to be some rules as otherwise there would be chaos. That seems to me to be no more than an independent sub-contractor coming onto a building site where he would have to liaise and cooperate with the other players on the site. That in itself would not make him any less an independent contractor. In the case at hand the driver could check out when he wanted to; he could take vacation when he wanted to for which he was not paid; once he had his particular assignment he could go about it as he saw fit, picking his own route in his own choice of transport. I see a great deal of independence here and very little supervision. The sole requirement seemed to be that if a driver wanted to check in for the day, he had to do so by 8:00 a.m. so that the dispatcher could work out which drivers were available. Similarly if they wanted to go off either in the day or for a day or more they were expected to notify the dispatcher. However they did not need permission. This part of the tests tends to establish an independent contractor status.

[46] Clearly the tools used by the drivers, were their own. They had to provide their own vehicles and bore all the costs of operating them, without reimbursement from the Appellant. This seems to me to be the biggest single distinction between the various cases cited to me by counsel and the case at hand. The drivers were operating their own vehicles. They also rented two-way radios from the company. These were not just provided to them. They had to pay rent on them which in a sense gave them a proprietary interest in them. The company provided nothing except some decals or signs which they used on a voluntary basis and a uniform which they maintained themselves and was obviously for identification purposes when picking up packages from customers. This aspect of the tests clearly leans towards the independent contractor status.

[47] It seems to me, when it comes to considering the opportunity for making a profit or suffering a loss, there was plenty of scope for these drivers to do either. The evidence was that there was considerable divergence between the amounts made by different drivers. Similarly there was a difference in the types of vehicles used. Their costs of maintenance were also no doubt different, depending on how resourceful they were. The less costs they incurred, the greater the profit they could make. If they were careless in their driving and became involved in an accident they might well sustain a very great loss, depending upon how prudent they had been with their insurance. In my view they endured all the risks and stood to reap all the profits of an independent contractor. I have also not overlooked the fact that they were free to work for other organizations once they booked off and some of them apparently did this. That is all consistent with being in business for themselves.

[48] The fourth aspect of the tests, enunciated by the Federal Court of Appeal, relates to the integration of the work into the business of the Appellant. One has to look at this from the point of view of the driver rather than the company. The question frequently put in these situations is 'whose business is it?'. Here I think it is important to appreciate that there are two different aspects to this business. The courier business operated by the Appellant involves marketing to its customers the service it offers of arranging to pick up transport and deliver cargoes for the customer within the city. Part of what is paid for is the administration and the whole network set up by the company. The business of the individual driver on the other hand, it appears to me, is a transportation business. The driver contracts with the company that at specified times he will provide a transportation service to the company, much the same as a cab driver who might be called in by the company. There is a difference between the courier business and the transportation business. The one encompasses far more than just the pick up and delivery. The other offers simply that. No particular driver forms an integral part of the business of the Appellant. The business of the driver has for its customer the Appellant and others if it chooses, that is to say it is not necessarily exclusively attached to the Appellant. In my view this test also leans far more in the direction of a contract for services than an employment arrangement.

[49] When I consider the method by which the drivers are paid, how they bear all their own expenses, provide their own vehicles to carry out their deliveries, their lack of benefits enjoyed by the full-time employees, their ability to decide when and how they will work, their opportunity to work for other delivery companies whether these be competitors or not, the rental of the radios, the choice of where they arrange their cargo bonds, their choice of whether they use company signs on their vehicles or not, their own marketing efforts with customers at their own expense, I can only come to the conclusion that all this leads to the inalienable conclusion that these drivers including Johannes Van Der Woerd, were engaged by way of a contract for services not a contract of service. There is literally nothing in my view which displaces the clearly expressed intention of the parties in the contract that it be considered a contract for services and not a contract of service.

Conclusion

[50] For the reasons expressed above I hold that Johannes Van Der Woerd was engaged by the Appellant by way of a contract for services during the period in question and accordingly was not an employee. He was not employed in insurable employment. Thus the decision of the Minister is vacated and the appeal allowed.

Signed at Calgary, Alberta, this 26th day of February 1999.

"Michael H. Porter"

D.J.T.C.C.