Harry Chow, the owner of Chow Installation and Repair Ltd. (Chow) has come to you for advice, 87 DTC 5025 (F.C.A.) but first he describes his business. Chow is in the business of installing and repairing overhead doors. Chow maintains a list of qualified installers and repair- persons and contacts them as work becomes available. Chow informed these workers that they would be considered to be running their own business, so no withholding of income tax, EI or CPP is made. Workers are paid by the job and work mostly on their own. If the person contacted refuses the assignment, Chow will call the next person on the list. The person who agrees to the job goes directly to the job site; he or she does not report to Chows work place, except to pick up a door or parts.

Chow supplies the doors and the parts used in the repair or installation. Each worker maintains his or her own truck and tools. Chow, however, owns specialized racks made for transporting the doors and a special drill which can be used on cement. These items are available to any worker who requires them.

Chow guarantees all work for one year. Under the terms of the agreement between Chow and the workers, if a guarantee has to be honoured, the worker will be responsible to fix any defects. If any parts are required to correct the defect, the worker has to pay for them.

Harry then asks you the question he wants advice on, What is the risk that his installers will be considered employees for tax purposes? He has heard that some other businesses are being reassessed and are facing significant liability for withholding taxes and he wants your advice on what his risk of reassessment is. You have agreed to meet with Harry again in one week and provide him with advice on this issue. As you think about how you will approach this assignment, you decide that you need to determine whether the workers should be considered employees of Chow or independent contractors. To do this you will need to consider the tests that are applied by the courts to this type of situation, and relate the facts of this case to those tests.

Required:

You need to determine whether the workers should be considered employees of Chow or independent contractors. To do this you will need to identify all the tests for distinguishing between employee versus self-employed (independent) contractor. Briefly specify the criteria of the test and apply the case facts to each test (e.g., classify case facts according to their respective criteria). Based on your analysis, conclude on whether the workers should be considered employees of Chow or independent contractors.

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