The role of intent in the determination of whether a worker is an employee or independent contractor has taken on greater significance in the last decade or so. However, despite a series of decisions on the issue from the Tax Court and the Federal Court of Appeal, there appeared to be some inconsistency in respect of how and when intent was to be considered when applying the “four-in-one” test from Wiebe Door Services Ltd. v. The Queen ( 3 F.C. 553) and 1671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001 SCC 59).
In 1392644 Ontario Inc. (o/a Connor Homes) et al. v. The Queen (unreported; see court files 2010-948(CPP)I, 2010-949(CPP)I, 2010-950(EI)I, 2010-951(EI)I, 2011-237(EI)I, 2011-239(CPP)I, 2011-241(EI)I, 2011-242(CPP)I), the Tax Court held that several workers were employees of the appellant companies.
In the Federal Court of Appeal (2013 FCA 85), the taxpayers argued that the Tax Court judge had erred by (i) placing weight on the findings of fact made in other judgments involving the same appellants before the Tax Court, and (ii) not considering and misapplying the test for determining whether a worker is an employee or an independent contractor, particularly by not giving proper weight to the intention of the parties as expressed in their contracts.
On the first issue, the Federal Court of Appeal held that the lower court had noted that the facts in the present appeal were essentially the same as those considered previously in three separate appeals before three other judges of the Tax Court. However, in this case, the lower court judge had reviewed the parties’ evidence, weighed it, and reached his own conclusions based on it. Thus, there was no error committed by the lower court judge.
On the second issue – the role of intent – the Federal Court of Appeal noted the jurisprudential trend towards affording substantial weight to the stated intention of the parties (see, for example, Wolf v. The Queen (2002 FCA 96), Royal Winnipeg Ballet v. The Queen (2006 FCA 87)). However, the Court of Appeal noted, there was some difficulty in the application of the approach described in Wolf and Royal Winnipeg Ballet. The Court of Appeal emphasized that the parties’ may describe their relationship as they see fit, but the legal effect that results from the relationship is not to be determined at the sole subjective discretion of the parties. The Federal Court of Appeal stated:
 Consequently, Wolf and Royal Winnipeg Ballet set out a two-step process of inquiry that is used to assist in addressing the central question, as established in Sagaz and Wiebe Door, which is to determine whether the individual is performing or not the services as his own business on his own account.
 Under the first step, the subjective intent of each party to the relationship must be ascertained. This can be determined either by the written contractual relationship the parties have entered into or by the actual behavior of each party, such as invoices for services rendered, registration for GST purposes and income tax filings as an independent contractor.
 The second step is to ascertain whether an objective reality sustains the subjective intent of the parties. … the subjective intent of the parties cannot trump the reality of the relationship as ascertained through objective facts. In this second step, the parties’ intent as well as the terms of the contract may also be taken into account since they color the relationship. … the relevant factors must be considered “in the light of” the parties’ intent. However, that being stated, the second step is an analysis of the pertinent facts for the purposes of determining whether the test set out in Wiebe Door and Sagaz has been in fact met, i.e., whether the legal effect of the relationship the parties have established is one of independent contractor or of employer-employee.
The Court of Appeal noted that, in the present case, the lower court judge had proceeded in an inverse order (i.e., dealing with the parties’ intent at the end of his analysis). The Court of Appeal stated that the first step of the analysis should always be to determine the intent of the parties. However, despite the lower court’s inverse analysis, the judge had reached the correct conclusion regarding the status of the workers.
The Federal Court of Appeal dismissed the taxpayers’ appeals.
This is helpful guidance from the Federal Court of Appeal on the manner and stage at which intent should be considered when determining whether a worker is an employee or independent contractor.