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The Federal Court dismissed an application for judicial review of an SST Appeal Division leave-to-appeal decision, holding the applicant had not met the CPP contribution requirements.
Leave to appeal was refused because the applicant failed to identify any reviewable error by the General Division and the Appeal Division lacks statutory authority to change Canada Pension Plan contribution requirements; therefore the appeal had no reasonable chance of success.
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Leave to appeal was refused because the claimant failed to present a ground of appeal that falls within s.58(1) of the DESD Act with a reasonable chance of success: the General Division correctly applied the law, found insufficient Canadian residence to qualify for OAS while abroad, correctly interpreted the Canada-UK treaty as not providing totalization absent 'insured' status through CPP contributions or obligations, and observed principles of natural justice.
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Appeal allowed: income allocated to retired partner for 2008 did not constitute self-employed earnings under s.14 of the CPP because it did not arise from a business carried on by the appellant in 2008; the May 20, 2014 reassessment was not made under s.152(4.2) (which aims to give refunds or reduce taxes) and the reassessment and subsequent appeal were valid; matter remitted to Minister for reconsideration and reassessment consistent with finding that no CPP contribution was payable.
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Where an employee gives an employer a duly completed, certified and dated CPT30 election and represents that the original has been filed with CRA, the employer may rely on that form; contributory salary and wages do not include amounts for which the employer has been given such a certified CPT30, and the employer is not liable for assessments based on the employee's ineligibility absent employer misinformation.
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Subsection 30(5) of the Canada Pension Plan unambiguously deems contributions to be zero where the required return is not filed and the Minister does not assess within four years; the appellant failed to file within that period and no assessment was made, therefore the Minister's decision must be confirmed and the appeal dismissed; the court cannot override the statutory deeming provision based on fairness, and Income Tax Act s.220(3) does not affect that deeming period.
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Judge found testimony of appellant witnesses credible and respondent witness not credible, found mutual intention that Scholz be an independent contractor, and on application of established factors (limited control pre‑assignment, right to refuse, driver set rates and collected delivery fees directly from customers, ownership of truck not determinative) concluded Scholz was an independent contractor; consequently EI and CPP assessments for 2006–2009 were vacated.
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On the evidence the workers were independent contractors because their actual conduct and the commercial reality satisfied the Wiebe Door/Sagaz indicators: the workers exercised control over when, where and how they worked, lacked integration with the appellant corporations, had a chance of profit and risk of loss tied to DF's profits, and the appellant corporations were mere conduits with no tools, control or assets; therefore CPP assessments were not warranted.
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The Court accepted the parties' agreement to allow the specific additional deductions and remitted the matter to the Minister for reassessment and adjustment of interest, penalties, CPP contributions and applicable tax credits, but held that it lacked jurisdiction to alter the Minister's discretionary decision to waive interest and penalties under subsection 220(3.1), adopting prior authority that such discretionary fairness determinations are not for the Tax Court to substitute or overturn absent procedural fairness or legal error.
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The Tax Court Judge correctly applied the Wiebe Door multi-factor test and there was clear evidence to support his findings that the applicant exercised control, set rates of pay, supplied essential equipment and that the workers bore no risk of profit or loss; therefore the workers were employees and the applications for judicial review are dismissed.
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