"'The central question at issue remains whether the person who has been engaged to perform the services is, in actual fact, performing them as a person in business on his own account. As stated in both Wiebe Door and Sagaz, in making this determination no particular factor is dominant and there is no set formula. The factors to consider will thus vary with the circumstances. Nevertheless, the specific factors discussed in Wiebe Door and Sagaz will usually be relevant, such as the level of control over the worker’s activities, whether the worker provides his own equipment, hires his helpers, manages and assumes financial risks, and has an opportunity of profit in the performance of his tasks.'"
The court's application of these rules in any case is hard to predict. Here, the appellant lost her case, in part, because Justice Woods didn't believe her:
" I generally found the witnesses to be credible, with the exception of Ms. Porotti. Some of the circumstances which have led me to doubt the reliability of Ms. Porotti’s evidence are set out below.
- In her resume, Ms. Porotti stated that she was self-employed as “M. Porotti Office Services” since 1993. At the hearing, Ms. Porotti denied that she had been self-employed and said that the resume had been padded. Whether this is true or not, Ms. Porotti’s credibility is called into question.
- In an email to Joanna Martin dated February 22, 2012, Ms. Porotti stated that she was not employed by Royal Ascot and that she was self-employed. At the hearing, Ms. Porotti stated that she did not want to tell Ms. Martin the truth. Again, these circumstances suggest a problem with the reliability of Ms. Porotti’s testimony.
- At the hearing, Ms. Porotti sought to explain why she under-reported her Royal Ascot income on her tax returns. She stated that Royal Ascot’s administrator, Ms. Scarlett, advised her to report as self-employed so that she could get a tax deferral. Ms. Scarlett vehemently denied saying this, and I find Ms. Porotti’s explanation to be implausible.
" Accordingly, to the extent that Ms. Porotti’s testimony conflicted with the testimony of the other witnesses, I generally prefer their testimony."
The Appellant lost.
See Porotti v. M.N.R, 2014 TCC Woods J.