Tax Court of Canada

Employment Insurance

Taxpayer was independent contractor

Minister determined that A was engaged by appellant business owner in insurable and pensionable employment from Jan. 1 until Nov. 14, 2012. Owner brought appeal. Appeal allowed. Subjective intention of parties not determinative on its own, but owner’s intention clear from actions, notably not taking source deductions, issuing cheques that were sometimes marked “contract” and issue of tax slips on subcontractor basis. A’s testimony self-serving as he wished to claim employment insurance benefits. A worked under conditions for many years without questioning status. A deducted business expenses on his tax returns. A was experienced painter who did not require supervision. A had considerable freedom to take time off in middle of a job and refused to work overtime. Control factor favoured interpretation that A was independent contractor. A chose to use own tools, although owner’s tools available. Lack of assumption of risk and opportunity for profit favoured employment. Key factor was loose relationship between parties.

Abhar v. Minister of National Revenue (Jun. 26, 2015, T.C.C. [Employment Insurance], Judith M. Woods J., File No. 2014-1926(CPP), 2014-1927(EI)) 254 A.C.W.S. (3d) 854.

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