Tax Court of Canada

Employment Insurance

Taxpayer could not change status to employee unilaterally

Appeal by taxpayer from decision by Minister denying taxpayer’s application for employment insurance benefits. Taxpayer was executive chef at resort for six months. Minister found that taxpayer was not engaged in insurable employment for purpose of Employment Insurance Act (Can.). Appeal dismissed. Taxpayer and resort shared on-going, common intention that taxpayer was independent contractor. Parties’ negotiation of contract indicating taxpayer would be independent contractor at initial meeting was evidence both intended taxpayer to be independent contractor. Taxpayer could not change status to employee unilaterally after resort failed to reduce contract to writing. Given taxpayer’s training and experience as executive chef and owner’s inexperience, lack of supervision, control and training were not useful factors in determining taxpayer’s status. Failure to hire assistants for costs reasons suggested ability to do so and was consistent with independent contractor relationship. Taxpayer’s failure to work for others and freedom to come and go while at resort were consistent with independent contractor relationship. Taxpayer’s declaration of ownership of, and claim for compensation in respect to, “signature dishes” strongly supported independent contractor relationship. Level of control was objectively consistent with parties’ intention that taxpayer be independent contractor. Chance of profit was objectively consistent with status as independent contractor but risk of loss was not.

Therrien v. Minister of National Revenue (Apr. 22, 2013, T.C.C. [Employment Insurance], David E. Graham J., File No. 2012-4957(EI)) 227 A.C.W.S. (3d) 1037.

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