WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 112/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 112/15 BEFORE: J. Josefo : Vice-Chair E. Tracey : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: January 15, 2015 at Toronto Oral DATE OF DECISION: February 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 417 DECISION UNDER APPEAL: WSIB decision of Appeals Resolution Officer ( ARO ) B. Patlik, dated December 16, 2010 APPEARANCES: For the putative workers: For the putative employer: Interpreter: Not applicable E. Fournie & O. Roslak, Barristers and Solicitors Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 112/15 REASONS (i) The employer's appeal [1] The employer appeals the December 16, 2010 decision of Board Appeals Resolution Officer ( ARO ) B. Patlik. ARO Patlik concluded that 13 sales contractors of the employer were, in fact, workers of the employer pursuant to a payroll audit of the employer conducted by the Board in The ARO thus confirmed the February 11, 2009 decision of the Board Auditor in that regard. [2] The ARO rendered this decision following a review of the record, without an oral hearing. [3] The employer disagrees with the decision of the ARO. The employer asserts that the 13 sales contractors were indeed independent operators and not workers as that term is defined in the Workplace Safety and Insurance Act, 1997 ( WSIA or the Act ). (ii) Issue [4] The issue before the Panel is the determination of the status of the 13 individuals in 2006 and 2007, and ongoing as considered by the Board Auditor. The 13 individuals are helpfully listed in new exhibit seven, part of the Tribunal s record of this appeal. (iii) Background facts [5] The facts which underpin this appeal were very well summarized by ARO Patlik in the decision under appeal, and the evidence before us reinforced these basic facts. The employer, P, is in the business of promotional merchandise and novelty items. The president of P, Mr. D.M., described P as a re-seller of promotional merchandise which it buys from distributors or manufacturers. D.M. further described P as a marketing company which markets its brand of premium and promotional merchandise. [6] Promotional merchandise would include branded items such as t-shirts, coffee mugs or golf balls, to name but a few; could be prepared with a particular company s brand or logo imprinted thereon; and could be used for individual promotional activities or for various promotional/marketing campaigns. As D.M. further explained, P does not only obtain the merchandise but, through the expertise of the sales contractors, actually devises promotional campaigns around the uses of such merchandise, sometimes on a seasonal basis. [7] As ARO Patlik reviewed in the comprehensive decision under appeal, the Board audited P in The firm and its sales contractors completed the Board s questionnaire in order to determine whether the individuals were workers or independent operators. At that time, the Auditor concluded that the individuals were independent operators, not workers. [8] In 2008 a Board Auditor again conducted an audit of P which was, on this occasion, retroactive to Once again, a number of the individuals, but not all, completed the Board s questionnaire. After reviewing the documentation, including contracts which P and a number of its agents/employees entered into, the Auditor concluded in the February 11, 2009 decision that the sales representatives were, save for one, workers, not independent operators. [9] Yet the employer argues that, notwithstanding the contracts, the fundamental nature of the business of the employer, and how it operates, had not changed during the approximately

3 Page: 2 Decision No. 112/15 nine years between audits. The employer objected and the matter was subsequently before ARO Patlik for review. [10] ARO Patlik considered the questionnaires and submissions. It was ultimately concluded, seemingly because of the contracts which were entered into by some but not all of the sales contractors with P, that these individuals were subject to a high degree of control, and the decisions they make have an insignificant effect on their opportunity to earn a profit or suffer a loss. Accordingly, the ARO concluded that given that high degree of control to which the individuals were subjected when performing their work, the sales agents (sales contractors) were workers, not independent operators, pursuant to the Act and Board policy. [11] The employer disagrees and the matter was brought before the Tribunal. (iv) Law and policy [12] Since the audit occurred in 2008, retroactive to 2006, the Workplace Safety and Insurance Act (the WSIA) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. The Panel specifically finds that section 2 of the Act and the definitions contained therein to be of particular relevance. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy package, revision # 8, would apply to the subject matter of this appeal: Policy package 299, along with Operational Policy Manual ( OPM ) Document No , Workers and Independent Operators, dated January 3, 2007 [14] We have considered these policies as necessary in deciding the issues in this appeal. We have of course paid particular reference to OPM Document No , the Workers and Independent Operators policy. We reproduce the policy as follows: s.2(i) An independent operator is a person who carries on an industry set out in Schedule I or Schedule 2 of the Act and who does not employ any workers for that purpose. A worker includes a person who has entered into or is employed under a contract of service, or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes a learner or student a member of a municipal volunteer fire brigade or a volunteer ambulance brigade a person deemed to be a worker of an employer by direction or order of the WSIB a person summoned to assist in controlling or extinguishing a fire by an authority empowered to do so a person who assists in any search and rescue operation at the request of and under the direction of a member of the Ontario Provincial Police Force a person who assists in connection with an emergency that has been declared by the Lieutenant Governor in Council or the Premier under section of the Emergency Management and Civil Protection Act or by the head of council of a municipality under section 4 of that Act an auxiliary member of a police force a person deemed to be a worker under Section 12, or

4 Page: 3 Decision No. 112/15 s.11(i) a pupil deemed to be a worker under the Education Act. A worker does not include Policy an outworker (a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in the person s own home) an executive officer of a corporation or a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer s industry. The WSIB uses questionnaires (a general questionnaire and six industry-specific questionnaires), to gather information to help determine if a person is employed under a contract of service. The questionnaires reflect the principles of the organizational test (see below). Persons employed under a contract of service are workers. Independent operators are not employed under a contract of service. The WSIB has the authority to determine who is a worker or an independent operator under the Workplace Safety and Insurance Act Guidelines General A contract of service, or employer-employee relationship, is one where a worker agrees to work for an employer (payer), on a full- or part-time basis, in return for wages or a salary. The employer has the right to control what work is performed, where, when, and how the work is to be performed. Workers those who work under contracts of service are automatically insured arid entitled to benefits if injured at work. In addition, their employers must pay premiums to the WSIB. A contract for service, or a business relationship, is one where a person agrees to perform specific work in return for payment The employer does not necessarily control the manner in which the work is done, or the times and places the work is performed. Independent operators those who work under contracts for service are not automatically insured or entitled to benefits unless they voluntarily elect to be considered workers and apply to the WSIB for their own account and optional insurance. (See , Optional Insurance.) Independent operators may not be insured through the hiring company s (payer s) WSIB account Organizational test The organizational test recognizes features of control, ownership of tools/equipment, chance of profit/risk of loss, and whether the person is part of the employer s organization, or operating their own separate business. Questionnaires The questionnaires apply to persons, usually contractors and subcontractors, who are unsure of their own status, or whose status is in question by the hiring company or the WSIB. Elements of the organizational test are incorporated into the six industry specific questionnaires and the general questionnaire. Industry-specific questionnaires

5 Page: 4 Decision No. 112/15 These questionnaires are geared to specific industries in which the question of worker/independent operator status arises most frequently. They are Construction Courier Logging Retail stores Taxis, and Trucking. General questionnaire The WSIB uses a general questionnaire for persons who work in industries other than the six industries for which there are industry-specific questionnaires. After completing and submitting the appropriate questionnaire to the WSIB, the WSIB determines whether persons are workers in an employer s organization, or independent operators running their own separate business. Incorporation The WSIB does not automatically consider incorporation, on its own, as a sole factor in determining whether a person is an independent operator. One-person corporations still need to apply for independent operator status by completing the appropriate industryspecific or general questionnaire. The WSIB looks at whether the person operates a business or not, rather than just the incorporated structure of the operation. Where to get a questionnaire Contact: Workplace Safety and Insurance Board 200 Front Street West Toronto, Ontario, M5V 3J1 Telephone: (416) or (toll free), or visit our website at Characteristics of workers and independent operators The following list compares worker/independent operator characteristics. The statements on the left are more characteristic of the behaviour or situations of workers, while those on the right characterize the behaviour of independent operators. No one statement determines a person s status. The seven questionnaires do not necessarily include all the characteristics listed since they are designed to capture key elements of business relationships in specific industries. Decision-makers consider the statements on the questionnaires, and any other information relevant to the terms and conditions of employment. Workers Instructions Comply with instructions on what, when, where, and how work is to be done. Training/ supervision Trained and supervised by an experienced employee of the payer. Required to take Independent Operators Work on their own schedule. Does the job their own way. Use their own methods and are not required to follow

6 Page: 5 Decision No. 112/15 Personal service Hours of work Full-time work Order or sequence of work Method of payment Workers correspondence or other courses. Required to attend meetings and follow specific instructions which indicate how the payer wants the services performed. Must render services personally. Must obtain payer s consent to hire others to do the work. The hours and days of work are set by the payer. Must devote full-time to the business of the payer. Restricted from doing work for other payers. Performs services in the order or sequence set by the payer. Performs work that is part of a highly coordinated series of tasks where the tasks must be performed in a well-ordered sequence. Paid by the payer in regular amounts at stated intervals. Payer alone decides the amount and manner of payment. Licenses Payer holds licenses required to do the work. Serving the public Does not make services available except on behalf, or as a representative, of the payer. Invoices customers on employer s behalf. Independent Operators instructions from the payer Often hires others to do the work without the payer s consent. Work whatever hours they choose. Free to work when and for whom they choose. Performs services at their own pace. Work on own schedule. Paid by the job on a straight commission. Negotiates amount and method of payment with the payer. Person holds licenses required to do the work. Has own office Listed in business directories and maintains business telephone. Advertises in newspapers, etc. Invoices

7 Page: 6 Decision No. 112/15 Status with other government agencies Workers Terms of the relationship are governed by a collective agreement. Canada Revenue Agency either makes no ruling on the person s status, or rules that the person is a worker under the Canada Pension Plan (CPP) and the Employment Insurance Act (EIA). (A ruling is made after the relevant parties complete the form Request for a ruling as to the status of a worker under the CPP or EIA.) Collects and pays GST and other applicable taxes on payer s behalf. Payer deducts EI, CPP, Insurance, Income tax, etc. from pay. Independent Operators customers on own behalf. Terms of the relationship not governed by a collective agreement. Canada Revenue Agency has made an official ruling that the person is not a worker under the CPP and the EIA. Collects and pays GST and other applicable taxes on own behalf. Takes no deductions from pay for EI, CPP, insurance, income tax, etc. Profit or Loss To determine what the opportunities are for the person to earn a profit or suffer a loss in doing the work, the decision-maker must consider what assets (labour, materials, tools, and equipment) are used, operated, or put into action when doing the work, e.g., a lathe. These are to be distinguished from assets that are the subject of the work, or that are acted upon in doing the work, e.g., the table leg that is turned on the lathe. what costs are incurred in doing the work, including - costs of the acquisition, maintenance, operation and repair of assets; - financing and loan arrangements with respect to the work, and - licensing and insurance fees who pays these costs - the employer or the person if the person pays the costs, does the person purchase items directly or indirectly from the employer or through an arrangement with the employer what decisions influence the costs and to what extent who makes and has the right (legal or otherwise) to make these decisions - the person or the employer the market mobility of the person or the demand that exists for these services.

8 Page: 7 Decision No. 112/15 Workers have the right to make decisions that in comparison to those that the employer makes (or has the right to make), have an insignificant or lesser influence on the Norkersi opportunity to make a profit or suffer a loss in doing the work. Independent Operators have the right to make decisions that, in comparison to those that the hiring company makes (or has the right to make), have a significant influence on their opportunity to make a profit or suffer a loss in doing the work. Other applicable criteria To determine what other applicable criteria suggest about the status of the person, decision-makers consider the paired statements that follow. None of these statements, on its own, leads to the determination of status. Before making a determination, decisionmakers must consider each statement in reference to all other features of the work relationship. Continuing need for type of service Hiring/ supervising/ paying assistants Doing Work on Purchaser s premises Oral and written reports Right to sever relationship Workers Payer has a continuing need for the type of service that the person provides. A payer has a continuing need for service if all persons who perform such services, collectively, spend more than 40 hours a month on average doing the work, or if the work continues full-time for more than 4 months. Hires, supervises, and pays workers, on direction of the payer (acts as a supervisor or representative of the payer) Payer owns or controls the worksite Required to submit regular or oral or written reports to purchaser Either the person or the payer can end the work relationship at any time without legal penalty for breach of contract Independent Operators Purchaser does not have a continuing need for the type of service that the person provides. Hires, supervises and pays workers, on own accord and as the result of a contract under which the individual agrees to provide materials and labour and is responsible for the results. Works away from payer s premises Uses own office space, desk, and telephone. Submit no reports Agrees to complete a specific job and is responsible for its satisfactory completion or is legally obligated to pay for damages or loss of income that the payer sustains because of the failure to satisfactorily complete the work

9 Page: 8 Decision No. 112/15 Working for more than one firm at a time Workers Usually works for one payer Independent Operators Works for more than one payer at the same time. Determining Status The decision-maker reaches a decision about the status of the person. When the criteria indicate the person has a separate business that is not integrated into the employer s business, then the person is an independent operator. If the decision-maker finds that the person is subject to a high degree of control in doing the work, and that the decisions the person makes have an insignificant effect on the person s own opportunity to earn a profit or suffer a loss the person is a worker and does not have a separate business, even if a review of Other applicable criteria suggests that some independence is afforded the person in the relationship with the employer. Application date This policy applies to all decisions regarding worker or independent operator status made on or after June 30, Document history This document replaces , dated October 12, This document was previously published as , dated January 31, (v) Discussion of the evidence [15] We had the benefit of oral testimony from Mr. M.A., who was in 2006 a sales contractor with the employer and who actually signed a contract with the employer on an unspecified date (the month and day portion of the contract was not completed) in In addition to Mr. M.A. the Panel heard evidence from the president of P, Mr. D.M. [16] Notwithstanding the written contract that six of the 13 individuals listed in exhibit seven signed, the Panel nevertheless concludes that the relationship between the sales contractors and P was one of near equality. We acknowledge that the written contract used in this matter intended to provide otherwise. As remarked at the hearing, this case is thus in some ways the mirror image of some cases brought before the Tribunal: where the contractual terms proclaim the independent nature of the relationship between the parties, yet the actual workplace reality of control is divorced from those proclaimed contractual ideals. [17] In this case, however, as D.M. acknowledged, the contract was indeed an attempt by P to bring greater certainty to its relationship with the at times fractious and hard-to-manage group of sales contractors. Yet we accept that, based upon the totality of the evidence, the contractual terms were in the main not honored. We further find that, given the nature of the business and the particular business model, the terms could not be enforced by P without P causing itself significant difficulties in its ongoing operations. [18] In that regard, the following excerpt from Tribunal Decision No. 283/13 is particularly germane to our consideration of the evidence. Tribunal Decision No. 283/13 stated as follows:

10 Page: 9 Decision No. 112/15 [11] In essence, Sagaz, the Board s policy and Tribunal jurisprudence state that one must look at the totality of the relationship between the parties, rather than any one specific criterion in determining whether a person is a worker or an independent operator. [19] We also find the below excerpt from Tribunal Decision No. 197/04 to be applicable to this case. That decision states as follows: [34] Whether it be the Tribunal s view that one must examine the reality of the situation or the Supreme Court of Canada s suggestion that one must look to the total relationship of the parties, it is clear, in my view, that in determining how to properly characterize an employment relationship, one must consider more than how the parties have described that relationship on paper. It may be that the written description does not correspond with the business reality [emphasis added]. [20] In this case, if one only considered the terms of the contract that a number (but not all) of the purported independent sales agents entered into, one could conclude that these individuals were subjected to control by the employer in their workplace activities. The totality of the relationship in this case between these parties, however, has, again, convinced us otherwise. [21] M.A. testified in great detail as to how he controlled his clients. It was he who brings his clients to P for promotional campaigns and promotional materials. It was M.A. who determined the appropriate type of campaign and who liaised with the client, not P. When M.A. left P on what was subsequently described by D.M. as by mutual agreement, M.A. took his clients with him to a competitor of P s. [22] M.A. described how he obtains clients. While he now has a roster of his own clients, he continues to cold-call, use social media and , as well as relies upon referrals from existing customers. M.A. made it clear that it is up to him to take on a client if P asks him to do so. M.A. stated that he can and has declined such opportunities when he does not see this to be in his interest. He also noted that less than 5% of his clients came through referrals from P. [23] M.A. made it clear that his costs, such as his car expenses, travel expenses, marketing costs, and the cost of sample products, are at his sole expense. At one point he had a part-time assistant, which was again at his cost. He did inform P that he would be bringing on someone, for security reasons given that there are proprietary issues for not only P but for the businesses that are mutually served by P and the sales representatives. Most of the time M.A. works out of his home, although he is in P s office approximately 20% of the time. [24] All of this testimony was consistent with the questionnaires completed in this case. M.A. s evidence, we find, was also consistent with the testimony of D.M. D.M. made it clear what P brings to the relationship. While the sales representatives bring the clients, it is P who will fund the initial financial outlay in order to obtain from a distributor or manufacturer the promotional products. P also helps manage the relationship of the various moving parts involved, which include: the client who seeks promotional products and materials, the sales representative who develops the plan and brings the specific client requirements (such as certain types of t-shirts, pens, coffee mugs etc.) to P, the distributor of the goods whom P will contact and/or the manufacturer of the product, which may be located far away from Canada.

11 Page: 10 Decision No. 112/15 to fund the cost of obtaining the product initially, subject to the goods being received by the client, to the client s satisfaction. [25] As D.M. also explained, at times things go wrong. The colour scheme of the t-shirts could be reversed, the logo could be printed backward, or a myriad of other issues could arise which would jeopardize the successful conclusion of the transaction, leading to a loss of opportunity and monies for all involved. There can also be credit problems with the ultimate customer, a few examples of which D.M. described. [26] He noted that in those cases the sales consultant may well be short-paid for the next deal depending upon how much the sales consultant contributes to P. He explained that if the sales representative brings in a significant amount of orders on an annual basis, this may be sufficiently valuable so that P will not claw-back any monies due to the insolvency, for example, of a client or because an order was wrong, even if it is the fault of the sales contractor. At other times, however, D.M. explained that P will set-off funds to equalize the over-commission paid when such was not in fact earned. As he noted, it is a business decision depending upon how much P needs the particular sales contractor. [27] There are many Tribunal decisions, such as Tribunal Decision No. 436/06, which have discussed the law, including the common law which has emerged in this area. What the Panel gleans from the case law is summarized as follows: The overall relationship between the parties, rather than only looking at the contract or any one specific criteria, must be considered when addressing the question of whether an individual is a worker or independent operator; Whether there is interdependence or integration, meaning that the individual and business need each other to survive and thrive, is not on its own determinative of the nature of the relationship, but is an important question; Whether the business activities of the individual can fairly be described as a business in its own capacity, despite however interdependent or integrated with the principal the individual independent operator may be, is a factor of significance. [28] In this case it can be said that the sale contractors such as M.A. are interdependent with P, the re-seller of promotional activities. Each party needs the other. The sales contractors have their book of business and bring these clients to P, so that P can in essence finance and manage the deal, using P s expertise to source the distributor and/or manufacturer of the various promotional products. P can also inventory the products for the individual sales contractors and also provide certain embroidery or other value-enhancing services. [29] In our view, moreover, since each party needs the other each therefore can bargain with the other from a position of relative strength and equality. If the sales contractor is not happy with the terms of the deal offered by P, then the sales contractor can, and as D.M. stated, has done, take that particular business or project to a competitor. If P becomes dissatisfied with the sales contractor because errors in specifying the nature of the product or how the promotional material is to be presented leads to a loss, P can then inform the sales contractor to take his or her business to a competitor because the sales contractor is not worth the hassle. Each has the freedom to do business together or to do business with other parties. We accordingly find in this

12 Page: 11 Decision No. 112/15 case that the business activities of the individual can fairly be described as a business in its own capacity. [30] We are reinforced in this view by the correspondence from Ms. C.F. dated August 31, 2014 and sent to the Tribunal (found in Addendum #3, exhibit #4 to this record). Ms. C.F. wrote in part as follows: I am the individual with one of the longest associations with [P] therefore I would expect that my understanding of the situation would be the most valuable to your Hearing. From August 28th 1991 I was self employed as [the name of her promotional company]. I added [P] to my supplier list for items other than clothing. I subsequently found it more convenient to work out of [P s] premises as I found it important to have samples readily available for my clients. I took vacations several times a year and never had to get a clearance from [P] to do this, either the dates or how long I would be gone. I enjoyed the benefits of doing business outside of [P] and in those instances I invoiced and collected payments on my terms. On occasion I paid for my own assistant. Of note, it became preferable at times to do more business through [P] because their prices were better due to volume discounts however we still treated them the same as other suppliers and invoiced them at the end of the Month. [31] The witnesses who testified before us also confirmed that the individuals invoiced P on a regular basis and were paid based on such invoices. [32] In her review of the matter, ARO Patlik did acknowledge when discussing the issue of control, that the majority of the facts seem to denote independence according to the criteria set out in OPM Document No The ARO observed further, however, that because of contract P can adopt policies and procedures on anything it wishes, as long as they do not conflict with specific provisions in the written contract. The ARO thus concluded that this demonstrates that P has control. She concluded that for the purposes of considering the control aspect of the organizational test, the facts indicate worker status, not independence. [33] Yet as is hopefully made clear above, on the basis of an oral hearing where we had the opportunity to hear helpful testimony which explained in detail how this business works, and our considering the totality of the evidence, including the reality of the workplace environment, we respectfully disagree. We believe that the facts indeed denote independence notwithstanding the terms of what we accept was an unenforceable contract. [34] We observe that the ARO also concluded that under the profit/loss discussion in the comprehensive decision, that the people in question exercise entrepreneurial decision-making that could impact their ability to earn a profit or suffer a loss. We agree with that conclusion. The ARO then, however, referred again to the contract and concluded that because P has so much control over the agents opportunities in the marketplace, that the agents ability to determine their profitability was significantly circumscribed. After reviewing various excerpts from the contract, the ARO concluded that, pursuant to the organizational test, this demonstrates worker status. In essence, and in the ultimate conclusion of the ARO, the sales agents in question are subject to a high degree of control, and that the decisions they make have an insignificant effect on their opportunity to earn a profit or suffer a loss. Based on this and the

13 Page: 12 Decision No. 112/15 reference to the policy which discussed the importance of control, the ARO concluded that the individuals in question were workers. [35] Again, the oral testimony has persuaded us otherwise. We agree that the contract is problematic and required compelling explanation. We are satisfied that even those who signed the contract were not subject to it and that it was, as D.M. explained, a failed experiment which, given the particularities in this particular work environment, was impractical and unenforceable. [36] As discussed earlier, the relationship between the sales contractors and P would best be described as one of near equality. Each side brings something to the table. Each offers support to the other, in furtherance of both the sales contractors and P earning income and thus profit from a successful promotional campaign or the successful fulfillment of promotional orders. [37] In our view, the relationship between the workplace parties was as the 1999 Auditor correctly concluded. The interposition of the contract unfortunately very much muddied the waters. Ultimately, however, the Panel is satisfied that, on the facts of this unusual case, we should attribute less weight to an unenforceable and impractical contract that a number but not all of the sales contractors signed in or about Again, as was explained, pursuant to exhibit seven, six individuals signed the contract while the others flat out refused to do so for various reasons. If the contract had been as important as was thought to be the case, then the Panel would not have been surprised to see the other individuals not allowed to continue with their relationship with P. That, however, is not our facts. [38] Accordingly, for all these reasons, the Panel concludes that the sales contractors whom the Auditor added back as workers of P when calculating P s payroll were independent operators and not workers. Thus, the appeal of the decision of ARO Patlik dated December 16, 2010 is allowed.

14 Page: 13 Decision No. 112/15 DISPOSITION [39] The employer's appeal of the December 16, 2010 decision of ARO Patlik is allowed. The sales contractors of the employer were independent operators and not workers for the audit year 2006 and any subsequent years affected by the ARO decision. DATED: February 20, 2015 SIGNED: J. Josefo, E. Tracey, C. Salama