Docket: CACV2142 Farmers of North America Incorporated (Dissolved CBCA 212 Sept 2005) Appellant - v. -, 2013 SKCA 108

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 108 Date: 2013-10-08 Between: Docket: CACV2142 Farmers of North America Incorporated (Dissolved CBCA 212 Sept 2005) Appellant - and - Brent Bushell Respondent Coram: Richards C.J.S., Lane and Caldwell JJ.A. Counsel: Peter Bergbusch for the appellant Benedict Nussbaum for the respondent Appeal: From: 2011 SKQB 267 Heard: October 8, 2013 Disposition: October 21, 2013

Written Reasons: Appeal dismissed (orally) By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell Lane J.A. [ 1 ] The respondent was successful in his action seeking damages for unpaid wages and for wrongful dismissal from the appellant Corporation. He was found to be an employee throughout the parties’ relationship and was awarded an amount for unpaid wages, damages for constructive dismissal and solicitor-client costs.

The appellant appeals the resulting order. [ 2 ] The appellant argued that for a several year period during the course of their relationship the respondent was in fact in an independent contractor relationship and could not maintain an action for unpaid wages as a result. We dismissed the appeal orally with written reasons to follow and these are the reasons. [ 3 ] The respondent was hired as a manager of the Corporation in 1998. At the time, he had his own business corporation provided limited training services and carried on some other minor activities. He became a director of the appellant.

The appellant concedes at this stage the respondent was hired as an employee. [ 4 ] In approximately July of 1999 at the suggestion of the dominant director Mann (the appellant’s corporate activities were his brainchild), it was agreed that the respondent’s compensation was to be paid through the respondent’s private corporation. This payment method continued until April of 2003 when, after a ruling by the Canada Revenue Agency, he and other individuals paid by the same method were deemed to be employees.

The trial judge found the change occurred in April of 2003 but the appellant says the respondent’s status changed January 1, 2003. However, nothing turns on this specific date. The respondent was then paid personally as an employee as of April 1, 2003 until he ended his employment in the spring of 2004.

It is for that time when the respondent received his compensation through his company which is in issue, with the appellant, as stated earlier, claiming the respondent was an independent contractor during that time period. [ 5 ] The appellant contends the trial judge failed to consider the relevant factors described in the jurisprudence to determine the true nature of the relationship. It says the respondent was essentially unsupervised during the time he provided services to the appellant and could carry out his duties as he saw fit, in other words he was acting independently.

The respondent also had signing authority on the company’s chequing account. The appellant says the respondent was allowed to carry on his company’s other activities and therefore was in business on his own account. The respondent’s company invoiced the appellant and received payment for the services provided by the respondent. The company was responsible for remitting GST, CPP and EI payments. All of these factors were indicia of the status of an independent contractor and not that of an employee says the appellant.

As such, the appellant contends the trial judge erred in his determination the respondent was an employee during the time he was paid through his personal company. DECISION [ 6 ] The Supreme Court of Canada in Sagaz ( 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. , 2001 SCC 59 , [2001] 2 S.C.R. 983,) held there is no one conclusive test to determine whether a person is an employee or an independent contractor.

The Court canvassed the jurisprudence, summarized the various tests courts used to determine if there was an employee-employer relationship and said: 46 In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, supra , that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations. ..

" (p. 416). Further, I agree with MacGuigan J.A. in Wiebe Door , at p. 563, citing Atiyah, supra , at p. 38, that what must always occur is a search for the total relationship of the parties: [I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose .... The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned.

Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones. Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra .

The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the

degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and theworker's opportunity for profit in the performance of his or her tasks. It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relativeweight of each will depend on the particular facts and circumstances of the case. [my emphasis] [7] The fact that the payment for the services was paid through a professional services corporation does not of itself determine theemployment status of the person. See: Bird v.

Warnock Hersey Professional Services Ltd. (1980), (BC SC), 25B.C.L.R. 95 (S.C.); MacPhail v. Tackama Forest Products Ltd., (BC SC), [1994] 3 W.W.R. 36 (B.C. S.C.); Williamsv. H.J. Heinz Co. of Canada Ltd., 2001 BCSC 666; Therrien v. True North Properties Ltd., 2007 ABQB 312, [2007] 8 W.W.R. 739; and,Braiden v. La-Z-Boy Canada Ltd., 2008 ONCA 464, 294 D.L.R. (4th) 172. [8] Although the trial judge did not specifically refer to the above relevant factors, the difficulty faced by the appellant is obvious.

During the continuum of their relationship the respondent started as an employee and ended as an employee with an intervening period inwhich his personal corporation was paid for his services. During that continuum, his duties and a method of carrying out his duties neverchanged. It was clear from the evidence he was always under the ultimate control of Mann, the primary shareholder of the appellant. Mann determined who was to be paid, when they were to be paid, if they were to be paid, and how much they were to be paid.

It wasclearly open to the trial judge to find the respondent had the status of that of an employee. [9] It was also open to the trial judge to accept the evidence of unpaid wages as tendered by the respondent and the award is upheld. [10] The appellant did not press the award of damages and the award is also upheld. [11] The trial judge ordered solicitor-client costs. He did not give reasons for this award. Solicitor-client costs were neither pleadednor sought and therefore no basis was established for the award. The award of solicitor-client costs is therefore set aside and party-partycosts are ordered.

Subject to this variation, the appeal was dismissed. The respondent has had substantial success on the appeal andshall have his costs of the appeal in the usual manner.