Background
Match MG Field Canada Inc., a marketing and advertising agency, appealed decisions by the Minister of National Revenue concerning two merchandisers. The question was whether Victor Peterson and Pamela Pearse were employees under contracts of service, and therefore in insurable and pensionable employment, or independent contractors under contracts for services. The relevant periods were January 1, 2018 to December 17, 2020 for Peterson and June 23 to August 4, 2020 for Pearse. The four Employment Insurance Act and Canada Pension Plan appeals were heard on common evidence.
Peterson was an experienced merchandiser who signed an “Independent Contractor Agreement” in December 2017. He worked for multiple merchandising companies, received assignments through the Natural Insight app, and generally set his own schedule when working alone. Pearse’s six-week engagement primarily involved Quo fixture installations and cosmetic blitzes. She had previously worked full-time for Match Marketing Group Inc. as a multi-channel expert representative for Imperial Tobacco, under employment agreements containing salary, vacation, benefits and other terms absent from her later independent-contractor agreement.
The appellant also invoked issue estoppel based on a 2018 Tax Court decision involving Match Action Inc. and two other workers. Justice Susan Wong deferred ruling on that preliminary argument until after hearing the evidence.
The Court’s Holding
Justice Wong rejected issue estoppel. Although the prior decision was final, and the parties or their privies were arguably the same, the underlying issue was not. The earlier case concerned different workers, different periods, product demonstrators rather than merchandisers, and possibly different agreements. Those distinctions went to the heart of the employment-status inquiry.
Applying the central question endorsed in Sagaz and Wiebe Door—whether the workers performed services as persons in business on their own account—the Court followed the two-step approach in Connor Homes. It found a shared subjective intention that Peterson be an independent contractor. Pearse’s imprecise and conflated recollection prevented a finding of shared intention in her case, but did not end the inquiry: objective reality remained decisive for both workers.
Control favoured independent-contractor status. Planograms, store sign-ins, business-casual dress, deadlines and supervision of larger coordinated projects reflected the nature of merchandising rather than employee-level control. The equipment factor slightly favoured employee status because project kits and a specialized tool were supplied, although Peterson used his own vehicle and electronic devices. Opportunity for profit and financial risk favoured independent-contractor status: hours varied, additional work produced additional pay, and refusing work could reduce future assignments. The ability to hire helpers was neutral because neither worker hired helpers or appeared aware of that alleged prerogative. Weighing these factors, the Court allowed both appeals without costs, concluding that neither worker was engaged in insurable and pensionable employment during the specified periods. It also held that costs are unavailable in these EI and CPP appeals because their rules are silent on costs, unlike the rules governing income-tax and GST appeals.
Key Takeaways
- A prior contractor-status ruling does not establish issue estoppel where the workers, periods, duties and possibly contracts differ.
- A written independent-contractor agreement and shared intention do not override the relationship’s objective reality.
- Following planograms, meeting deadlines and participating in supervised team projects did not, on these facts, establish employee-level control.
- The appeals were allowed without costs; the Court treated costs as unavailable under the EI and CPP appeal rules.
Why It Matters
The decision illustrates the fact-specific nature of worker-classification disputes in project-based merchandising. Contract labels and subjective intention matter, but courts must test them against control, equipment, financial risk, profit opportunity and helpers. It also cautions against treating ordinary client specifications or coordination of team projects as conclusive evidence of employment.
The holding is confined to these workers and appeal periods. It does not create a universal rule that merchandisers are independent contractors, and Pearse’s unreliable evidence about intention did not prevent the Court from deciding her status through the objective factors.