Roberts v. R. - TCC: Telemarketer was not an employee

Roberts v. R. - TCC:  Telemarketer was not an employee

Roberts v. M.N.R. (June 10, 2015 – 2015 TCC 142, Rowe D.J.).

Précis:  Mr. Roberts worked as a telemarketer of insurance industry products for Michael Libourkine.  He claimed that he was engaged in insurable employment for EI purposes.  The Minister determined otherwise and Mr. Roberts appealed.

In a nutshell the Court found Mr. Roberts an unreliable witness and preferred the evidence of Mr. Libourkine.

Decision:   The Court found there was no common intention that Mr. Roberts would be an employee:

[21]        In the within appeal, it is clear neither Roberts nor Libourkine discussed the status to be accorded to the provision of services by Roberts. Libourkine testified that it was apparent, not only to him but also to Roberts, that the nature of the service provided within the context of the insurance industry was that the compensation would be based on results, namely leads culminating in a meeting between prospective customers and Libourkine. It was his understanding that Roberts – as an experienced telemarketer generally and specifically having provided his services to Clarica – an insurance company operating in Toronto – was aware he was free to utilize his own methods and to work such hours and under such conditions as he deemed appropriate to generate income. There was never any intention on the part of Libourkine that Roberts would be an employee. On the other hand, Roberts maintained that he had past experience both in retail and as a telemarketer and even though some telemarketing jobs lasted only three weeks, he was always accorded the status of employee and had received cheques as payment and accompanying information providing details of the relevant deductions from the gross amount of earnings. There was no written contract between the parties nor was there any subjective intent on the part of Libourkine and Roberts’ only act of compliance with any purported intent in that regard came much later when he filed his income tax returns and reported earnings as employment income, based on his calculation of remuneration received from Libourkine for the particular taxation year.

The Court accepted the evidence of M. Libourkine that Mr. Roberts had never acted as an employee and was extremely scathing in its assessment of Mr. Roberts’ evidence:

[40]        In preparing for this appeal, Roberts could have benefited from taking to heart the following admonition in the oft-quoted couplet from Sir Walter Scott’s 1908 poem, Marmion: A Tale of Flodden Field – Canto VI, XVII:

Oh, what a tangled web we weave

When first we practice to deceive!

[41]        As Roberts spun increasing strands of fantasy in the course of his testimony - let alone in cross-examination - he became trapped in an intricate weave of contradictions, deception, self-serving blather and outright lies from which he could not escape.

As a result the appeal was dismissed.