Greenshield Windows and Doors Ltd. v. R. – TCC: Telemarketers were not employees for purposes of EI and CPP

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Greenshield Windows and Doors Ltd. v. Canada (National Revenue) (March 20, 2015 – 2015 TCC 70, Woods J.).

Précis: CRA concluded that the telemarketers employed by Greenshield were employees for EI and CPP purposes. Greenshield appealed. The Court hear evidence that the intention of the parties was that the telemarketers be independent contractors. The Court allowed Greenshield’s appeal. The deciding factor was that the degree of control was very loose; the workers determined their own schedules and their own marketing pitches.

Decision: Greenshield is a small company based in London, Ontario that installs windows and doors. It employed the services of telemarketers. The question at issue in this appeal was whether those telemarketers were employees or independent contractors for EI and CPP purposes.

[3] Greenshield is a small corporation based in London, Ontario which is in the business of installing windows and doors.

[4] As part of its marketing efforts, Greenshield engaged telemarketers to generate leads for its business through cold calling. All of the Workers were so engaged.

[5] The calls were automatically generated by a software program that the telemarketers accessed through computer terminals at Greenshield’s premises. As I understand it, the telemarketers had to work in a group in order to minimize dropped calls.

The Court cited the recent decision of Hogan J. in Pareto Corp. v. M.N.R., 2015 TCC 47:

[14] Connor Homes mandates a two-step analysis. First, the intention of the parties must be ascertained in order to determine what kind of relationship they wished to create. In the light of that intent, the second step is to analyze the facts of the case to determine whether the expression of the parties’ intent conforms to the objective reality of their relationship. In this second step, the Court must apply the four Wiebe Door factors, namely: (i) control, (ii) ownership of tools, (iii) chance of profit and (iv) risk of loss, to determine whether the factual reality reflects the subjective intention of the parties.

The Court found, and the Crown did not dispute, that the intention of the parties was to enter into independent contractor relationships. The ownership of tools factor was neutral since the tools provided had minimal cost to Greenshield. The profit/loss analysis favoured an employment relationship. However the Court held that the determining factor was control:

[35] In weighing the evidence as a whole, I find that the relationship between Greenshield and the Workers was consistent with their common intention that the Workers be independent contractors.

[36] The factor that dominates in this case is control. The Workers were able to determine their own work schedules and their own telemarketing pitches. In such a loose relationship, I find that the Workers were engaged as independent contractors.

[37] The appeals will be allowed, and the decisions of the Minister will be vacated.