Smith v. Canada (Minister of National Revenue)

Smith v. Canada (Minister of National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2003-06-19 Neutral citation 2003 FCA 273 File numbers A-416-02 Decision Content Date: 20030619 Docket: A-416-02 A-417-02 Citation: 2003 FCA 273 CORAM: ROTHSTEIN J.A. NOËL J.A. SEXTON J.A. BETWEEN: CLIFTON SMITH / JOSEPH BIAFORE O/A RAINBOW TARPING & GENERAL CONTRACTING Applicants - and - THE MINISTER OF NATIONAL REVENUE Respondent Heard at Toronto, Ontario, on June 19th, 2003. Judgment delivered from the Bench at Toronto, Ontario, on June 19th, 2003. REASONS FOR JUDGMENT OF THE COURT: SEXTON J.A. Date: 20030619 Docket: A-416-02 A-417-02 Citation: 2003 FCA 273 CORAM: ROTHSTEIN J.A. NOËL J.A. SEXTON J.A. BETWEEN: CLIFTON SMITH / JOSEPH BIAFORE O/A RAINBOW TARPING & GENERAL CONTRACTING Applicants - and - THE MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on June 19, 2003) SEXTON JA. [1] The applicant applies for judicial review of the decisions of the Tax Court which dismissed its appeals from assessments for failure to remit insurance premiums and Canada Pension Plan contributions in respect of several workers for the period January 1 to August 18, 1999. These reasons apply to both Court files A-416-02 and A-417-02. [2] The applicant contends that the Tax Court Judge erred in finding that the workers were employees rather than independent contributors. [3] The applicant's business consisted of installing tarps on construction projects. The applicant designated the job sites where tarps were to be installed and the applicant supplied the tarps. The workers supplied their own hats, boots, and small tools. The workers were paid on the basis of piece work with the possibility of hourly remuneration in certain circumstances. The rates of pay were set by the applicant. [4] The Tax Court Judge set out the tests specified in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025 and then applied the facts as he found them in order to satisfy himself whether these tests had been satisfied. The Tax Court Judge, in taking into account the Wiebe Door criteria found that the workers were employees and not independent contractors. [5] It was contended by the applicant that the Tax Court Judge ignored evidence as to how the workers were paid, that he erred in concluding that the workers had no risk of profit or loss, and that he erred in holding that the applicant exercised control over the workers. [6] We are satisfied that there was clear evidence on which the Tax Court Judge could conclude as he did, that the applicant exercised control over the workers, that the applicant set the rates of pay, that the workers had no risk of profit or loss, and that the applicant supplied the important equipment. [7] Both applications will be dismissed. "J. E. Sexton" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-416-02 A-417-02 STYLE OF CAUSE: CLIFTON SMITH / JOSEPH BIAFORE O/A RAINBOW TARPING & GENERAL CONTRACTING Applicants - and - THE MINISTER OF NATIONAL REVENUE Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: JUNE 19, 2003 REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A. DATED: JUNE 19, 2003 APPEARANCES: Nella Macchia For the Applicants Carol Calabrese For the Respondent SOLICITORS OF RECORD: Nella Macchia Barrister & Solicitor Woodbridge, Ontario For the Applicants Morris Rosenberg Deputy Attorney General of Canada For the Respondent