3193099 Manitoba Ltd. v. The Queen
(October 20, 2014 – 2014 TCC 310) was a CPP appeal for 2012:
 The Minister determined and assessed the Appellant corporation which carries on business as Falcon Enterprises (“Falcon”) as an employer and the two Appellant Eissner brothers, Jan and Thomas, as employees, concerning two consecutive periods: January 1 to December 31, 2011 (the “2011 Period”) and January 1 to December 31, 2012 (the “2012 Period”).
 At the hearing of the matter, Appellant’s counsel withdrew the appeals relating to the assessments with respect to the 2011 Period for all Appellants and the 2012 Period in respect of the Appellant, Thomas Eissner, and the coincident impact of such an appeal for the 2012 Period on the Appellant, Falcon.
 Therefore, the sole matter and issue for this court to determine is whether Jan Eissner was an employee or independent contractor in respect of Falcon for the 2012 Period.
This decision in unusual in that Jan Eissner was not only providing services to his company, Falcon, but also to a number of others:
 Jan was effectively the chief operating officer of Falcon and in common parlance “ran the show”. The Respondent recognized such situation when it admitted the following facts in the reply: the Appellant (Jan) did not report to anyone, was not supervised, controlled his own schedule and vacations and provided management service and managed the day-to-day business operations of Falcon.
 Further, the Respondent in assessing Jan and Falcon for the 2012 Period made certain factual assumptions that Jan worked exclusively for Falcon, could not subcontract work or hire replacements, did not invoice Falcon for his services and was hired pursuant to a verbal agreement.
 At the hearing, the Court heard testimony on behalf of the remaining Appellants from Jan and his brother, Thomas. An appeals officer of the Canada Revenue Agency (“CRA”) was cross-examined briefly in relation to the filing history of the Appellants and the CRA internal report on an appeal (“CPT110 Report”).
 Aside from the CPT110 Report, certain relevant documents were tendered into evidence by the Appellants: invoices for the 2012 Period reflecting Jan’s personal contracting relationship with another oil drilling company (“Tundra”), a services agreement between Falcon and Jan dated as of January 1, 2012, management fee invoices rendered by Jan to Falcon for a period subsequent to the 2012 Period, Jan’s T1 tax return for the 2012 Period reflecting no employment income and only business income, GST information of the CRA confirming Jan’s sales revenue and GST paid on same and , lastly, Falcon’s T2 corporate tax returns reflecting Jan as an independent contractor.
 The agreement, entitled “services agreement”, provided for the usual declaratory and narrative statements concerning the parties’ intentions to be independent contractors and indemnifications for income taxes, CPP contributions and EI premiums. It also required Jan to collect and remit GST, which he did during the 2012 Period. The services agreement also made clear no relationship would be created between Jan’s employees (although factually there were none) and Falcon.
 During the 2012 Period, Jan provided services to several other companies. In those instances, the sole service provided by Jan was his industry knowledge, management and skill. There was uncontroverted evidence that all equipment, supplies and service rigs were provided by the other oil companies when Jan worked for them, the example of which was Tundra, to which Jan provided such services directly and in respect of which he was reimbursed for his expenses. As a worker for Falcon, the situation to this extent was substantially similar for Jan.
In essence the court accepted that Jan Eissner carried on his own business both with Falcon and other companies:
 The written services agreement that exists was executed by both parties, Falcon and Jan. Jan also contracted with other oil and drilling companies in the 2012 Period. The evidence regarding those other service recipients was fulsome and uncontroverted: Jan likely had no written agreement with them, but equally important, the structures, operations and dealings as between Jan and Falcon were all bona fide, manifest and not a sham.
 The actions of Jan and Falcon do not contradict their subjective intention. The inconsistencies maintained by Respondent’s counsel with respect to the services agreement are either immaterial or are not contradicted by the evidence in terms of the ultimate parties’ relationships. While Falcon supplied the tools of the trade, this was factually and anecdotally confirmed by Jan to be consistent and common-place throughout the oil drilling industry in southwest Manitoba and was consistent with his relationship with Tundra. It is also noted that Jan did provide his computer and occasionally a motor vehicle to Falcon. As to profit, not only was Jan’s profit linked to his effort and knowledge, but he was free to, and did, contract directly with other businesses on very similar terms and conditions to those present in the Falcon relationship.
 As to control, as mentioned, the Respondent admitted Jan retained control, and in any event, evidence at the hearing was clear and obvious on this point: Jan was in control of his agreed to services.
 In summary, the intention was clear at the outset and has not been revealed as unrealistic by an examination of the Wiebe Door factors. At worst, the examination of those factors is indeterminate as to an employer/employee versus independent contractor relationship and, at best, indicates that a separate business of Jan’s existed. Therefore, based upon an examination of the “real world” conduct of Jan and Falcon during the 2012 Period, there is nothing which otherwise demonstrates that the services agreement did not generally reflect the objective reality that Jan and Flacon were independent contractors.
As a result the appeal was allowed.