EMPLOYER-EMPLOYEE RELATIONSHIP

Appeal by the employer from the Tax Court decision dismissing its appeal from the Minister’s determination that certain of the appellant’s workers were employees. The appellant was a staffing company which provided wait staff for two related companies carrying on catering businesses. The appellant only hired experienced workers who did not require training. Wait staff could not subcontract their work without approval. Workers were provided with no guaranteed minimum hours and could negotiate their hourly rate within a range of $16 to $20 per hour. The Tax Court accepted that the appellant and the workers shared an intention for the workers to provide their services as independent contractors but did not find that the objective reality of the relationship between appellant and the workers sustained their subjective intention. The Tax Court concluded that factors of control by the appellant, the workers’ opportunity for profit and risk of loss, and integration all pointed towards an employee relationship.

HELD: Appeal dismissed. The Tax Court did not err in applying the legal test for an employee/independent contractor determination and clearly considered the objective factors in light of the parties’ intent. This court could not reweigh the evidence before the Tax Court and replace its factual findings in the absence of a palpable and overriding error. The Tax Court did not fail to address the cases raised by the appellant. No breach of procedural fairness occurred in this case when the court referred to case law that was not submitted by the parties and without providing the appellant an opportunity to make submissions.

AE Hospitality Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2020] F.C.J. No. 1153, Federal Court of Appeal, J.M. Woods, J.B. Laskin and M. Rivoalen JJ.A., December 1, 2020. Digest No. TLD-January182021008