Date: 19981026
Dockets: 97-480-UI; 97-29-CPP
BETWEEN:
MANITOBA PUBLIC INSURANCE CORPORATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Porter, J.T.C.C.
[1] These appeals were heard together on common evidence with the consent of the parties on August 17 and 18, 1998 at Winnipeg, Manitoba.
[2] The appeals concern the nature of the services provided by one Neil Neumann ("Neumann"), a driving instructor in the Manitoba High School Driver Education Program from November 29, 1995 to May 30, 1996, that is whether he was an employee working under a contractof service or whether he was retained under a contract for services as an independent contractor.
[3] The program was set up and organized by the Manitoba Public Insurance Corporation ("M.P.I.C.") which entered into arrangements with various schools and school divisions throughout the province to co-ordinate and run the program. M.P.I.C. also entered into other agreements with "commercial driving schools" and "non commercial driving instructors". Further contracts were entered into with persons who were to deliver the classroom instruction, which was normally done in the schools involved in the program.
[4] Neumann was one of the instructors contracted by M.P.I.C. to co-ordinate a program in a school, provide in-class instruction as well as behind the wheel instruction. He was to do so at the time in question out of the Nelson McIntyre Collegiate, one of the schools operated by the Norwood School division. He had performed these services for many years previously, whilst a teacher at the school, but had retired in June of 1995. Thus, as he was an employee already, the question of the nature of his services had not arisen previously. After his retirement he continued to run the driver education program in that school and so his status came into question.
[5] The wheels of this affair were set in motion, so to speak, by Neumann, who applied to Revenue Canada for a ruling as to the status of his employment under the Canada Pension Plan and the Unemployment Insurance Act (the "legislation"). He received a ruling from the Director of Taxation on April 19, 1996 as follows:
"We are of the opinion that he (Neumann):
a) is employed in pensionable employment per Section 6 of the Canada Pension Plan.
b) is employed in insurable employment per paragraph 3(1)(a) of the Unemployment Insurance Act."
[6] M.P.I.C. appealed that ruling to the Chief of Appeals at Revenue Canada, who on behalf of the Minister on January 3, 1997 made the following ruling:
"a) It has been decided that premiums and contributions were payable for the following reason: Neil Neumann was in insurable employment as an employee of the Manitoba Public Insurance Corporation from November 29, 1995 to May 30, 1996.
b) Furthermore, Neil Neumann was in pensionable employment as an employee of the Manitoba Public Insurance Corporation from September 9, 1995 to November 28, 1995.
c) Furthermore, Neil Neumann was not in insurable employment with the Manitoba Public Insurance Corporation from September 9, 1995 to November 28, 1995 because he had not met the minimum hours of earnings required.
d) Furthermore, the Norwood School Division No. 8 was the deemed employer for purposes of calculating Neil Neumann's earnings, and paying, deducting and remitting the premiums and contributions payable thereon."
[7] Each of M.P.I.C., Neil Neumann and the Norwood School Division appealed different aspects of this decision. At the time the appeal was commenced before the Court, Neumann and the School Division had settled their concerns and the issue left before the Court involves only the status of Neumann and whether he was an employee or an independent contractor in the different aspects of his work, that is as the co-ordinator of the program at this school, the in-class instructor and the behind the wheel instructor.
[8] The onus of establishing that the services in question were of the nature of a contract for service rather than a contract of service falls upon M.P.I.C.
The Law
[9] 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."
[10] 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.
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."
[11] I am indebted to counsel not only for their well reasoned and forceful arguments on both sides of this question, but also for referring me to a number of decisions both of the Federal Court of Appeal and of this Court. I particular I have noted the decision of the Federal Court of Appeal in M.N.R. v. Standing, 147 N.R. 238 and the words of Stone, J.A. who in allowing the appeal of the Minister said this:
"[5] With respect, it is our view that this application must succeed. Regardless of what may have been the Tax Court's appreciation of the Wiebe Door test, what was crucial to it in the end was the parties own post facto characterization of the relationship as that of employer/employee. There is no foundation in the case law for the proposition that such a relationship may exist merely because the parties choose to describe it to be so regardless of the surrounding circumstances when weighed in the light of the Wiebe Door test. The Tax Court should have undertaken an analysis of the facts while having regard to that test which, indeed, was reaffirmed in Moose Jaw Kinsmen Flying Fins Inc. v. Minister of National Revenue (1988), 88 N.R. 78; 88 D.T.C. 6099 (F.C.A.)."
[12] I also noted the following decisions of various judges of this Court, which relate to driving instructors, namely: Peter Doyle v. Minister of National Revenue, [1996] T.C.J. No. 73, Somers, T.C.J., Alberta Defensive Driving Inc. v Minister of National Revenue, [1993] T.C.J. No. 307, Bell., T.C.J., A-1 Driver Training v. Minister of National Revenue, [1990] T.C.J. No. 906, Taylor, T.C.J. and A-1 Driver Training Inc. v. Minister of National Revenue, [1986] T.C.J. No. 837, Millar, D.T.C.J.
[13] These latter cases provide most useful guideslines, taking into account their particular circumstances. Some of those circumstances are present in the case at hand and others are not. So too there are a number of unique circumstances in the case at bar. Thus the quoted cases are good signposts but not necessarily conclusive. I have given them the utmost consideration, but in the end analysis there is no escape for the trial judge but to consider all the individual factors of the case in the light of the test laid down in the Wiebe Door case (above).
The Facts
[14] The evidence revealed that the principal business of M.P.I.C. is the provision of insurance to the people of Manitoba. As a very small part of its operation it has set up, or perhaps taken over is a better word, the High School Driver Education Program in the Province of Manitoba. Obviously, if it can ensure good quality driver education for young people in the Province, then its insurance risk might well be diminished. Accordingly it has a self interest in promoting safe driving over and above public policy. In terms of dollars and personnel however it is clear that the program is a very small part of the business of M.P.I.C.
[15] M.P.I.C. has run the program for a number of years. It involved schools and school districts as these were to find and provide the students for the program. The corporation would make arrangements for the schools to provide classrooms and equipment, to collect fees paid by students, to pay instructors and remit surplus fees or invoice M.P.I.C. for any shortages. Generally the schools were on board to enable their students ready access to the program. They were in a break even situation financially, neither making nor losing money.
[16] I gleaned from the evidence that as was the situation in the case of Neumann, many of the co-ordinators and instructors of the program in the individual schools were in fact already teachers and thus regular employees in those schools. However that was not always the case. A number of different arrangements were in place with many different instructors throughout the province and in 1995 M.P.I.C., at the request of those various instructors, sought to standardize the arrangements with all of them.
[17] As I see it two different arrangements were put into place, with a common theme throughout both. First there were the commercial driving schools, which quite clearly held an independent contractor status. Secondly there were the individual instructors with whom M.P.I.C. sought to establish, in a similar fashion, in their contracts an independent contractor relationship as opposed to that of employer/employee. Their contracts with these individuals were entitled "non-commercial driving instructor's agreement". This it said that it did, with the general consent of all the instructors and the only one who challenged the arrangement out of the whole province was Neumann.
[18] I have already quoted the words of Stone, J.A. above. It is quite clear that simply terming the arrangement as a contract for services or the worker as an independent contractor does not necessarily make it so. A complete review of the circumstances must be undertaken. However, it does seem to me that where parties seek to establish a particular relationship, the Court should give due consideration to their intention this respect. If the general tenor of the arrangement when considered in the light of the Wiebe Door case (above) is consistent with the title afforded to it by the parties, as opposed to being generally consistent with an employer/employee arrangement some deference has surely to be given by the Court to that expressed intent. I do not think that it is for either the Court or the Minister to rewrite the parties contract. In this respect I adopt the words of Cattanach, J. in Elkin v. M.N.R. (NR 4):
"In my view the proper approach in the circumstances of the present appeal is to accept the contract between the parties, stating that the appellant is an independent contractor and not an employee, as a starting point, and then to examine the evidence adduced to determine if the facts established thereby are consistent with the relationship between the parties as expressed in the written contract. If that is so, it follows that the contract is one for services. If the contrary is the case then the contract is one of service."
[19] It is clear that the agreement signed by Neumann, a Non-Commercial Driving Instructor's Agreement, purports to establish an independent contractor situation. Paragraph 1 reads as follows:
"The driving instructor is an independent contractor and this agreement does not create the relationship of employer and employee."
Nothing could be stated more clearly and the Court must examine whether in substance that statement is borne out.
[20] With certain exceptions the remainder of the agreement is basically the same as the "Commercial Driving School Agreement", certainly to the extent that it sets out certain requirements for providing lessons at certain times and at a certain pace. The major difference between the two contracts is that in the one in question the services have to be provided by the particular instructor whereas in the Commercial Agreement the instruction has to be provided by instructors approved by M.P.I.C. The instructors however all have to hold the same qualifications.
[21] Secondly, in the individual case M.P.I.C. provides the car through an arrangement whereby local dealers donate the use of cars, as part of a goodwill promotion program. In the case of the commercial contracts the driving schools provide the vehicles, of a kind and in a condition acceptable to M.P.I.C. In this latter case they are paid a larger fee by M.P.I.C. and out of that have to bear the costs of maintaining and operating the vehicles as well as the capital cost.
[22] Those differences aside, the requirements of each contract are the same.
[23] The contract in question was signed by Neumann in the fall of 1995 at a meeting with M.P.I.C. and a number of other instructors. He said that he signed it without taking much notice of it, rather as a sort of "fait accompli". He started to work under it and then referred it to Revenue Canada.
[24] Neumann described in evidence how the program worked at his school. He would go to the principal and say that he wanted to put on a course. He would put up notices around the school. The school would also announce it over their P.A. system. He needed twenty students before he would proceed. Each student would pay $100.00. For that the student would receive 25 hours of classroom instruction and 8 hours of behind the wheel instruction, as well as 8 hours of in-car observer instruction, whilst another student drove. The school would collect the $100.00 from each student and hold it. Neumann was paid a fixed amount for the classroom instruction regardless of how many students were attending. He would also be paid for co-ordinating the course and would in addition to that receive so much an hour for behind the wheel instruction. Finally he would submit invoices to the school who would pay him out of the funds collected from the students. They would remit any excess to M.P.I.C. However. usually there was a deficiency and they would bill M.P.I.C. for this.
[25] For the period in question however, Neumann chose to wait until the end of the period and billed M.P.I.C. directly. This was the first time of course that he was not working whilst an employee of the school. The school at this time was reluctant to get involved in the makings of a dispute which was developing between Neumann and M.P.I.C. The commercial driving schools, it should be noted, always invoiced and were paid directly by M.P.I.C.
[26] With regard to the in-class instruction and co-ordination, these matters were not covered in the written agreements, which appear to have applied only to services involving the in-car training. The fees for in-class instruction and the co-ordination were covered in the Policy Manual of M.P.I.C. and required invoices to be sent to the school division in question along with time sheets setting out the hours worked.
[27] Much of the evidence before me revolved around the question of control or lack of it. It is clear that the curriculum and standards both for the classroom and the in-car instruction, were set by M.P.I.C. Instructors, teaching in car, were required to follow certain standards, whether individual or working for commercial driving schools. Some of these requirements emanated directly from government whilst others were of the making of M.P.I.C. In either case they were standards intended to ensure the students throughout the Province received the same high quality driver training whether from a commercial driving school or from an individual instructor. I see those requirements and standards as being equally applicable to an employee or an independent contractor, and nothing can be read into them either one way or the other. Whilst these standards and requirements had to be met, over and above these how Neumann went about his in-car instruction, was entirely up to him. He was an instructor of great experience and how he went about his work was left up to his own professional judgment. He was not required to perform this work at any particular time. He made those arrangements directly with the students as he saw fit. Where he went was up to him and when. Whether he went at all in any particular week was also up to him.
[28] He was required to use an M.P.I.C. provided vehicle and was restricted from any private use of such vehicle. They had to be returned directly after the lesson, to the dealership which made them available.
[29] There was a conflict in the evidence as to who would be responsible for damage done to the car. M.P.I.C. said the instructor would be responsible. Neumann said that the one time that a vehicle was damaged M.P.I.C. paid for it. Although much was made of this by the parties, I am not of the view, with respect that much turns on it. M.P.I.C. clearly provided the vehicles and restricted their use to instructional purposes only.
[30] In the classroom Neumann was expected to follow a curriculum. However the Minister conceded that he was able to set the class schedule with respect to days and times without reference to anybody else. He made his own arrangements with the school in this respect. There was no charge for these facilities.
[31] Over the years he was evaluated just once by a representative of M.P.I.C. That happened to be in December 1995 and Neumann was commended for his high standards. The Minister argues that this evaluation was indicative of control whereas M.P.I.C. maintains that it was simply making sure that the same standards were being maintained throughout the Province. I did not perceive this evaluation as a mode of control by M.P.I.C. It involved, in my view, a general overview of standards rather than an individual performance appraisal as might be done in an employer/employee situation. Any individual engaging an independent contractor to build, repair or do anything, is surely entitled, and is surely wise, to evaluate the work being done either by him or herself or through a representative, without there being any suggestion of the creation of an employer/employee relationship. Similarly to the matter of the curriculum, I do not see this as a means of control as urged upon me by counsel for the Minister. As counsel for M.P.I.C. said if one engages a contractor to build a house, one gives him a set of plans and one tells him how one wants to have it built, what colour the paint will be and where the front door might be situated and that it should conform to certain building codes or standards. That does not mean that the owner exercises such control over the contractor that the latter becomes an employee. Similarly with a teaching curriculum; if a person is simply engaged to teach a set curriculum, that is not per se indicative of an employer/employee relationship. If one were to add to that, a direction that the instructor should be at a certain place on a certain day to teach the curriculum between certain hours, with certain breaks and require him or her to attend staff meetings and attend to other as well, then indeed a consideration of all those factors may well lead to that conclusion. In the case at hand however there is simply the curriculum to be taught and Neumann had considerable latitude in how, when and where he taught it. The control aspect of the situation is indicative, if anything, of an independent contractor relationship.
[32] I turn now to the ownership of tools test. For the in-car instruction the car was provided and the expenses paid. Commercial driving schools provided their own vehicles and were paid a larger fee to take care of this. For the in-class instruction, the classroom was provided by the school by arrangement with M.P.I.C. along with the all the audio visual equipment needed.
[33] Clearly Neumann had to provide little if anything. He needed his own vehicle to get to and from his place of instruction. He needed his own telephone to make arrangements with the students, but these were no more than things he would need in ordinary life, in any event. Whilst none of these tests are per se conclusive the provision of the car by M.P.I.C. is more indicative of an employer/employee relationship. Certainly if the instructor used his own car it would be more indicative, but again not necessarily conclusive, of an independent contractor relationship.
[34] I next turn to consider whether Neumann had a chance of making a profit or risk of a loss. He was paid by the hour for the in-vehicle instruction and in effect by the hour for the in-class instruction. He was limited by the number of hours set up by M.P.I.C. in each case. Thus there was really no chance of his making extra profit by working efficiently. If he worked slowly and went over time then effectively his hourly rate would drop. However, there was no chance of coming to the end of his instruction and being in a loss position because he really had no expenses running during his teaching periods. On this basis he would seem to be more an employee than an independent contractor.
[35] There is another factor to this test however, which involves not what he did but rather what he was free to do if he so chose. This involves also the aspect of control again. There was absolutely no restriction on Neumann to work only for M.P.I.C. He could, if he had chosen to do so, have taken on other students or given additional instruction, provided a vehicle for test purposes and so on. In an employer/employee relationship the employee is often restricted from doing this. Indeed this was a factor in a number of the cases cited above where exactly that restriction appeared to be in place. In this case there was no such restriction placed upon Neumann which is indicative of a certain freedom from control. It is also indicative of the opportunity to make a profit if he did good work for M.P.I.C. and the loss of that opportunity if he was to slow down and spend too much extra time on his M.P.I.C. services. He in fact had neither, but the opportunity nonetheless existed.
[36] This leads me to the integration test, namely to see whether the work performed was an integral part of the business of M.P.I.C., providing a high School Driver Education Program, or whether it was done for the business but not integrated into it; or looking at it from Neumann's point of view whether he was in business for himself in providing services to M.P.I.C. as accessory to their driving program in the same way that the commercial driving schools clearly were.
[37] MacGuigan, J. in the Wiebe Door case (above) quoted with approval the following passage of Lord Denning in Stevenson Jordan et al. v. MacDonald and Evans, 1951 T.L.R. page 111:
"One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business: whereas, under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it."
[38] Counsel for M.P.I.C. has argued that driver education is not its main business and thus this work cannot be considered to be an integral part of its business. I am of the view with respect to him, that his argument misses the point, which is whether the work in question forms an integral part of that certain part of the business of M.P.I.C., namely the provision of the High School Driver Education Program. The word ‘business' in this context is not used in the sense of business for profit but rather in the sense of the nature of its affairs, whether that be a large part of them or a small part. Business in this respect may very well be ‘not for profit' or indeed charitable, but the work carried on by such an entity still remains its business. I deal with this here, because again the point was raised by counsel and much was made of the fact that driver education was a very small part of what M.P.I.C. was involved in. Indeed it was not its main business. Nonetheless it was part of its affairs and in that sense was its business.
[39] In looking then at the business of providing High School Driver Education, I should consider whether the work performed by Neumann was an integral part of it or whether what he was doing in this particular school with these particular students was in reality the conduct of his own business and merely accessory to the business of M.P.I.C.
[40] I have to say that what Neumann did was a significant part of the provision of high school driver education in this school. Without him there was nothing. However it was not M.P.I.C. which arranged to put on the course in the Norwood School Division, at any particular time. Whilst they made arrangements so that it could be put on anywhere throughout the Province, drew up the curriculum, set the standards, qualifications and requirements, it was really up to Neumann in connection with the school whether or not a course was actually put on at any particular time. If he had not made an approach to the principal of the school to put on a course (or some other instructor in his place) no course would have ensued. He chose whether, if and when he wanted to put on a program and then did so. M.P.I.C., it seems to me, provided the program, which he then put on. They then paid him for doing so, in the sense that they paid the difference between the fees collected from the students and the cost of putting on the program, at the rate of fees for which they had made provision.
[41] Although in a sense it was an M.P.I.C. program and the students were their customers (clients) in a sense it was also a school program as well as a community program, funded by the provision of school facilities, cars from dealerships and so on. It was not as if M.P.I.C. said that they wanted to put on a program in their own facility in cars they owned on a particular date at particular times. If any thing it was more a joint venture, in which a number of entities and people were involved. In that sense Neumann was part of the venture, but it was also his venture in that nothing happened unless he chose to start it.
[42] I am of the view, in this sense, that his work was not an integral part of the business of M.P.I.C. They did have their separate part in it and part of that was to subsidize this particular program. They provided an opportunity and Neumann picked up that opportunity to put on a course. Thus this individual course became his business. This part of the test steers me clearly to the view that this was a contract for services not a contract of service.
[43] The Minister was said to have relied, in coming to his decision, upon the assumptions of fact set out in the Reply to the Notice of Appeal. I do not find it necessary to set them out at length because on the whole M.P.I.C. agrees with them. Overall they set out similar facts to those that I have found and set out above. I simply note that many of those facts upon which the Minister relied, relate to both the individual instructors such as Neumann, and to the commercial driving schools where clearly there existed contracts for services.
[44] The Minister relied, amongst other things, upon the classroom evaluation but I see that as no more than a form of inspection rather than an employee performance appraisal. In any event it was the same evaluation as was carried out throughout the Province and applied equally to the commercial driving schools.
[45] There is no disagreement as to the manner and amount of payment.
[46] It is true that the personal service of Neumann was required, although it would seem from the evidence that he could have found a substitute approved by M.P.I.C. if he had been unable to instruct for example for health reasons. That apparently did not happen. The same principles would apply if one hired a lawyer for example or some other professional. On the whole one would expect that person to perform the task personally but that does not make him or her an employee. I am not of the view that too much should be read into this factor.
[47] Clause 13 gg) of the Reply causes some difficulty in my mind. It asserts that between 1967 and 1995 M.P.I.C. considered the driving instructors to be employees and it made statutory deductions. The evidence was that they were involved in any number of different arrangements with different instructors and the purpose of the 1995 contracts was to standardise all of this. That seems to me to make sense and neither the Minister nor the Court should lightly interfere with that as long as the arrangement set up is consistent with what it purports to be. In point of fact, Neumann was previously a school board employee and was, as I understood it, paid for his driving instruction work by the school board, in the same way that he was paid his regular salary. What changed was his status as a regular employee of the school board. As the Minister found in paragraph 13 jj) his duties were the same before and after. The question to be answered here, is whether upon retirement his status under which he went about his duties changed. He was certainly free at that point to work privately or for any other school or school board doing driver instruction or other work if he chose to take that path. That seems to me to be a significant difference in his status.
Conclusion
[48] I have considered all the circumstances and reflected at some length on the different factors in what the Federal Court of Appeal called the four-in-one test in order to find the "combined force of the whole scheme of operations". As is so often the case certain aspects point in one direction whilst others pull the opposite way. I have been indebted to counsel for the very thorough way in which they presented their well-reasoned arguments. Such skill does not make my task any easier. In fact it only serves to underline that there is merit on both sides. I remind myself that there is no single factor that is all compelling in this case. Other driving instructor cases in other provinces have gone different ways depending upon their own peculiar facts.
[49] A consideration of all the facts in this case has inclined me on balance to the view that this arrangement amounted to a contract for services as the parties sought to establish in their written contract, rather than a contract of service. There was a sufficient degree of independence afforded to Neumann both with respect to what he did and whether and how he did it, that I find to be consistent with the intention to create a contract for services. Although it might be legitimately argued that this was offset by the profit and loss aspect of the test and the ownership of tools, there was insufficient derogation from that general tone of independence throughout the arrangement, to be able to come to the conclusion that Neumann was an employee or on a contract of service with M.P.I.C. Much of what the Minister relied upon as a demonstration of control was, with respect, irrelevant as it applied equally to those who were clearly independent contractors.
[50] In the result I find that Neumann entered into a contract for services with M.P.I.C., that is to say he was an independent contractor throughout the time period, the subject of these appeals. He was not accordingly in insurable or pensionable employment. The decisions of the Minister are accordingly vacated and the appeals allowed.
Signed at Calgary, Alberta, this 26th day of October 1998.
"Michael H. Porter"
D.J.T.C.C.