Case Report – Facebook status does in Tax Court respondent

13 Nov

On October 22nd, the Tax Court of Canada issued an amusing judgement in which it relied on a taxpayer’s Facebook status in determining that he was a contractor rather than an employee. The evidence went to the parties’ intention, a relevant factor in the applicable legal test. The Court said:

Mr. Bidner put to Mr. Hall in cross-examination that Mr. Hall described himself as “self-employed” from April 2006 to the present on Facebook. Mr. Hall’s response was that you do not have to be honest on Facebook. That is correct, or at least if it is not, it is of no particular importance to this Court for this proceeding. Mr. Bidner then asked why Mr. Hall chose not to be truthful about his self-employment. Mr. Hall responded that it was to protect his privacy, just as he did not disclose what he did or where he worked. Mr. Bidner then pointed out to him that he did describe himself as a self-employed hair colourist specialist in Ottawa. The Court asked Mr. Hall if he would like to see a copy of the 2009 Facebook page and he replied that he did not need to.

Upon later request for clarification by the Court Mr. Hall indicated everything else, his age, his likes and preferences, his hometown, his education, activities and groups were all true and the only thing he misrepresented in his Facebook entry was his self-employment status. He went on to affirm again that this was because of privacy concerns. He could not explain how being employed versus self-employed touched on internet-related or other privacy concerns, especially since he disclosed himself as an Ottawa-based hair colour specialist and used his real name. In argument, counsel for the respondent was similarly unable to even hypothesize a scenario where one’s employment or self-employment status alone could be thought to give rise to a privacy concern.

Mr. Hall described himself on Facebook as a self-employed hair colour specialist. Everything else about him on his Facebook info page he says is true. This is his own description of his work status made voluntarily, describing his work during the period he worked at the appellant’s salon. It was made in a setting where nothing seemed to turn on it. Though he now says it alone was untrue and dishonest, he cannot explain why this would be the one thing he would choose to lie about on Facebook regarding his personal information.

In such circumstances, I do not accept Mr. Hall’s explanation that he chose to lie on Facebook about the self-employment characterization of his hair colouring activities at the salon. To the contrary, I regard it to be evidence that Mr. Hall intended, when he started at the salon, to be self-employed and that he understood this at least up to the time he created his Facebook entry.

Shonn’s Makeovers & Spa v. Canada (Minister of National Revenue – M.N.R.), [2010] T.C.J. No. 415 (QL).

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