Date: 20130320
Citation: 2013 FCA 85
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
MAINVILLE J.A.
Docket: A-117-12
A-118-12
A-122-12
A-125-12
A-126-12
A-127-12
BETWEEN:
1392644 ONTARIO INC.
O/A CONNOR HOMES
Appellant
and
THE MINISTER OF
NATIONAL REVENUE
Respondent
Dockets: A-120-12
A-128-12
BETWEEN:
1324455 ONTARIO INC.
Appellant
and
THE MINISTER OF
NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
concerns eight appeals heard together on a common record from eight judgments
issued by Justice D’Arcy of the Tax Court of Canada (the “Tax Court Judge”).
The Tax Court Judge rendered one set of reasons for the eight judgments, which
were delivered orally by teleconference call on March 20, 2012. These reasons
have not been reported.
[2]
The
Tax Court Judge dismissed the appellants’ respective appeals from decisions of
the Minister of National Revenue (the “Minister”) determining that certain
individuals were employed by them in pensionable employment within the meaning
of the Canada Pension Plan. R.S.C. 1985, c. C-8 and in insurable
employment within the meaning of the Employment Insurance Act, S.C.
1996, c. 23.
BACKGROUND AND CONTEXT
[3]
The
appellant 1392644 Ontario Inc. o/a Connor Homes (“Connor Homes”) is licensed by
the province of Ontario to operate foster homes and group homes through which
it provides care for children who have serious behavioural and development
disorders. These services are delivered by numerous individuals retained by
Connor Homes, including child and youth workers, social workers, certified
therapists and psychologists.
[4]
Among
the individuals retained by Connor Homes are Ms. Rollie Allaire, Ms. Jodi Greer
and Ms. Zoe Fulton.
[5]
During
the periods at issue, Ms. Allaire provided services in the foster homes as an
area supervisor as well as a child and youth worker. When she began working
with Connor Homes, she signed a contract dated July 7, 2008. The contract
specified that she would be working as a child care worker and acting as an
independent contractor remunerated on the basis of an hourly rate of $14 paid
upon submission of invoices. She was also paid a flat rate of $150 for
overnight relief services and $300 for weekend relief services. Certain
transportation payments were also provided under the contract. The contract was
for an indeterminate period of time, but could be terminated by Ms. Allaire
upon a 14 day notice and by Connor Homes at any time “for cause”. The contract
also stipulated that, as an independent contractor, Ms. Allaire “shall not be
entitled to any benefits and shall be responsible for payment of all necessary
remittances, including Canada Pension Plan, Employment Insurance and Provincial
and Federal Taxes”. It also stipulated that “nothing in this agreement shall be
construed so as to restrict in any way the freedom of the Independent
Contractor(s) to conduct any other business or activity for his/her individual
profit.”
[6]
Ms.
Allaire also acted as an area supervisor for Connor Homes. Her remuneration as
supervisor was based on a per diem rate for each child resident within a
home under her supervision. Payment was effected upon presentation of monthly
invoices. She was deemed by Connor Homes to be an independent contractor when
acting as a supervisor.
[7]
Ms.
Greer and Ms. Fulton also worked for Connor Homes and each signed a contract as
a child and youth worker dated January 5, 2007 and May 15, 2008 respectively.
These contracts were very similar (but not identical) to the one signed between
Connor Homes and Ms. Allaire. The duties of Ms. Greer as a child and youth
worker mainly involved providing relief services and tutoring the children in
her care. These duties were performed in addition to her principal functions
(which are more fully described below) as an area supervisor. Ms. Fulton worked
as a child and youth worker in foster homes and was involved in supervising
children in the morning and evenings, assisting in homework, monitoring youth
activities, cooking meals, assisting the children in her care with their
hygiene, and carrying out various activities with the children.
[8]
Connor
Homes is owned by Robert and Elaine Connor. Their son Sean Connor operates the
appellant 1324455 Ontario Inc. (“Connor Group Homes”) as a service provider to
Connor Homes. Connor Group Homes also signed a contract with Ms. Jodi Greer,
referred to above, in order for her to act as an area supervisor for foster
homes operated by Connor Homes. In that capacity, she “developed plans of care,
reviewed requests for funds, attended Children’s Aid meetings and hired foster
parents and child and youth workers. She was also a crisis manager”: Reasons of
the Tax Court Judge at para. 20. Her contract with Connor Group Homes dated
February 1, 2007 stipulated that she was retained as an independent contractor
with a 5 year appointment ending February 1, 2012. She could however terminate
the agreement through a 60 day prior written notice, while Connor Group Homes
could end the agreement at any time “for cause”. Her remuneration under the
contract was based on a per diem rate for each child resident within a
group home or foster home under her supervision. Payment was effected upon
presentation of monthly invoices. The contract included a non-competition
clause. It also stipulated that as independent contractor, she was “responsible
for expenses incurred during the operation of this service unless otherwise
negotiated in advance with Connor Group Homes.”
[9]
The
Canada Revenue Agency ruled that Ms. Allaire, Greer and Fulton were employed in
insurable and pensionable employment with Connor Homes for the periods of July
15, 2008 to October 25, 2009, February 8, 2009 to February 12, 2010 and January
1, 2009 to May 22, 2009 respectively. The Canada Revenue Agency also determined
that Ms. Greer was also employed with Connor Group Homes in insurable and
pensionable employment for the periods of February 8, 2009 to February 12,
2010. All these rulings were confirmed by the Minister.
[10]
The
appellants appealed to the Tax Court of Canada.
THE REASONS OF THE TAX COURT
JUDGE
[11]
After
setting out the facts, the Tax Court Judge noted that three prior decisions of
the Tax Court of Canada had dealt with similar issues involving child care
workers employed by Connor Homes: 1392644 Ontario Inc. O/A Connor Homes v.
M.N.R., 2003 TCC 816; 1392644 Ontario Inc. v. Canada (Minister of
National Revenue), [2004] T.C.J. No. 214 (QL); 1392644 Ontario Inc. o/a
Connor Homes v. M.N.R., 2006 TCC 521. In all these decisions, the judges
had concluded that the child care workers were employees of Connor Homes and
not independent contractors. The Tax Court Judge then concluded that there was
no evidence before him that the operations of Connor Homes had changed since
these decisions were reached.
[12]
Reviewing
the evidence before him in light of the factors set out in Wiebe Door
Services Ltd. v. Canada (Minister of National Revenue), [1986] 3 F.C. 553
(“Wiebe Door”), the Tax Court Judge concluded that both Connor
Homes and Connor Group Homes exercised significant control over the workers,
that there was no chance for the workers to increase their income by reducing
expenses or producing more, and that only few tools were required from the
workers, mainly a cell phone and access to a computer.
[13]
He
further dismissed the appellants’ submissions based on the intent of the
parties. He found that the contracts’ provisions qualifying the workers as
independent contractors were not consistent with how the contractual
relationship operated in fact.
[14]
He
consequently found that the three concerned workers were employed in insurable
and pensionable employment, and thus dismissed the appeals.
THE ISSUES RAISED IN THIS APPEAL
[15]
The
appellants submit that the Tax Court Judge erred by: (1) placing weight on
findings of fact made in other judgments of the Tax Court of Canada; and (2) by
not considering and misapplying the test to determine 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 the contracts they signed.
THE STANDARD OF REVIEW
[16]
It
is well established that in appeals from the Tax Court of Canada, the
applicable standard of review is that set out in Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235. The first issue identified above raises
questions of law and of procedural fairness, and should thus be reviewed on a
standard of correctness. The second issue raises both questions of law reviewed
on a standard of correctness (i.e. the identification of the proper
test), and questions of fact and of mixed fact and law (i.e. the
application of the facts to the proper test), reviewed on a standard of
palpable and overriding error.
THE LEGISLATIVE FRAMEWORK
[17]
The
pertinent definition of insurable employment under the Employment Insurance
Act for the purposes of this appeal is set out in paragraph 5(1)(a)
of that legislation, which reads as follows:
|
5. (1) Subject
to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any
express or implied contract of service or apprenticeship, written or oral,
whether the earnings of the employed person are received from the employer or
some other person and whether the earnings are calculated by time or by the
piece, or partly by time and partly by the piece, or otherwise;
|
5. (1) Sous
réserve du paragraphe (2), est un emploi assurable :
a) l’emploi exercé au Canada pour un ou plusieurs employeurs,
aux termes d’un contrat de louage de services ou d’apprentissage exprès ou
tacite, écrit ou verbal, que l’employé reçoive sa rémunération de l’employeur
ou d’une autre personne et que la rémunération soit calculée soit au temps ou
aux pièces, soit en partie au temps et en partie aux pièces, soit de toute
autre manière;
|
[18]
The Canada Pension
Plan provides in its paragraph 6(1)(a) that pensionable employment
is employment in Canada that is not excepted employment. The term “employment”
is defined in subsection 2(1) thereof, while the list of excepted employment is
set out in paragraph 6(2), which is not pertinent for the purposes of this
appeal:
|
2. (1) In
this Act,
“employment” means the state of
being employed under an express or implied contract of service or
apprenticeship, and includes the tenure of an office;
|
2. (1) Les
définitions qui suivent s’appliquent à la présente loi.
« emploi »
L’état d’employé prévu par un contrat de louage de services ou
d’apprentissage, exprès ou tacite, y compris la période d’occupation d’une
fonction.
|
|
6. (1) Pensionable
employment is
(a) employment in Canada that is not excepted
employment;
|
6. (1) Ouvrent droit à pension les emplois suivants :
a) l’emploi au Canada qui
n’est pas un emploi excepté;
|
ANALYSIS
Placing weight on
findings of fact in other judgments
[19]
The
appellants submits that the Tax Court Judge erred by placing weight on the
factual findings made in previous appeals concerning the employment status of
other childcare workers of Connor Homes since (a) these factual findings could
not possibly apply to Connor Group Homes and (b) the applicable test must be
examined in light of the particular factual circumstances of each case.
[20]
I
agree that one trial judge is not bound by the conclusions of fact of another
trial judge since each case must be decided on the evidence submitted. That
being said however, when similar facts are submitted repeatedly by the same
party to different judges, and where the same conclusions are being drawn from
these facts by all judges, it is certainly not inappropriate for a trial judge
to note this. Obviously, the trial judge is not bound by the findings of the
other judges, but the party which is relying on the same or similar facts to
draw another conclusion should provide some explanation as to why the findings
of the other judges are distinguishable from the case at hand or inappropriate
in the circumstances.
[21]
In
these proceedings, the Tax Court Judge properly noted that the facts
surrounding the operations of Connor Homes were essentially the same as those
considered previously by three other judges of the Tax Court of Canada: see
para. 42 of his reasons. He also noted that there was no major factual
distinction between the operations of Connor Homes and of Connor Group Homes,
the latter’s operations being integrated into the operations of the former: see
paras. 11, 20, 22 of his reasons.
[22]
Connor
Homes provided no evidence that the facts in issue were now different, nor did
it provide explanations as to why the findings of these other judges, based on
essentially identical facts, were somehow distinguishable for the purposes of
the proceedings before the Tax Court Judge. The Tax Court Judge nevertheless
reviewed the evidence before him, weighed it, and reached his own conclusions
based on it. His conclusions were the same as the three other Tax Court of
Canada judges who reviewed the employment practices of Connor Homes. These
conclusions can certainly not be vitiated on the simple ground that all four
judges reached the same consistent conclusions.
The test to determine
whether a worker is an employee or an independent contractor
[23]
The
ultimate question to determine if a given individual is working as an employee
or as an independant contractor is deceivingly simple. It is whether or not the
individual is performing the services as his own business on his own account: 1671122
Ontario Ltd. v. Sagaz Industries Canada Inc., 2011 SCC 59, [2001] 2 S.C.R.
983 at para. 47 (“Sagaz”).
[24]
Since
the trend in the workforce for the past few years has been toward increased
out-sourcing and short-term contracts, this question has taken on added
importance, and has lead to much litigation in the Tax Court of Canada.
Moreover, employment status directly affects an individual’s entitlement to
employment insurance benefits under the Employment Insurance Act and has
a considerable impact on how an individual is treated under the Canada
Pension Plan, the Income Tax Act, R.S.C. 1985, c. 1 (5th
Supp.) and various other legislative provisions.
[25]
Yet
both judges and commentators alike who have written on the subject have noted
that the test, though simple in theory, is often very difficult to apply with
any degree of certainty, in part due to the fact specific nature of the
question and the variability of the ever changing workplace: Sagaz at
para. 46; Joanne Magee, “Whose Business Is It?” 45(3) Canadian Tax
Journal 584 (1997); Lara Friedlander, “What has Tort Law Got to Do with
It? Distinguishing Between Employees and Independent Contractors”, 51(4) Canadian
Tax Journal 1467 (2003); Kurt Wintermute, “A Worker’s Status as Employee
or Independent Contractor”, 2007 Canadian Tax Foundation conference report
34; Alain Gaucher, “A Worker’s Status as Employee or Independent Contractor”,
1999 Canadian Tax Foundation conference report, 33.
[26]
The
leading decisions on the question are that of our Court in Wiebe Door and
of the Supreme Court of Canada in Sagaz.
[27]
In
Wiebe Door, MacGuigan J.A. carried out a thorough examination of the
relevant precedents. He referred to the fourfold test set out by Lord Wright in
Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 (P.C.); [1946] 3
W.W.R. 748 dealing with control, ownership of tools, chance of profit and risk
of loss, as well as with the so-called integration test set out by Lord Denning
in Stevenson Jordan and Harrison, Ltd. v. Macdonald, [1952] 1 The
Times L.R. (C.A.).
[28]
MacGuigan
J.A. redefined the integration test by providing that it applied only from the
worker’s perspective, and he considerably limited its use. Significantly,
however, MacGuigan J.A. established the principle that there are no specific
and determinative criteria that can be used, but rather “[w]hat must always
remain the essence is the search for the total relationship of the parties”: Wiebe
Door at p. 563. He concluded that there is only one test: “I interpret Lord
Wright’s test not as the fourfold one it is often described as being but rather
as a four-in-one test, with emphasis always retained on what Lord Wright, supra,
calls ‘the combined force of the whole scheme of operations’, even while the
usefulness of the four subordinate criteria is acknowledged”: ibid at p.
562. In essence, the question to be addressed is “[w]hose business is it?”: ibid
at p. 563.
[29]
Major
J., writing for the Supreme Court of Canada in Sagaz, approved the approach
of MacGuigan J.A. in Wiebe Door, and added that the “central question is
whether the person who has been engaged to perform the services is performing
them as a person in business on his own account.”: Sagaz at para. 47. In
making this determination, no particular factor is dominant and there is no set
formula. The factors to consider may thus vary with the circumstances and
should not be closed. Nevertheless, certain factors will usually be relevant,
such as the level of control held by the employer over the worker’s activities,
and whether the worker provides his own equipment, hires his helpers, manages
and assumes financial risks, and has an opportunity of profit in the
performance of his tasks.
[30]
Alongside
the test as set out in Weibe Door and Sagaz, in the past few
years another jurisprudential trend has emerged which affords substantial
weight to the stated intention of the parties: Wolf v. The Queen, 2002
D.T.C. 6053 (F.C.A.) (“Wolf”); Royal Winnipeg Ballet v. Canada (Minister of National Revenue) 2006 FCA 87, [2007] 1 F.C.R. 35 (“Royal Winnipeg Ballet”). This trend has not gone without criticism: see Dean Lang and
Sharon Lang v. M.N.R., 2007 TCC 547, 2007 D.T.C. 1754 where Bowman C.J.
appears to express his frustration with the lack of clarity and consistency in
this Court’s jurisprudence on the matter.
[31]
Thus
in Wolf, Décary J.A. placed significant weight on the fact that the
parties had entered into a contract for services on the basis that the worker
was as an independent contractor. He held that absent any unambiguous evidence
to the contrary, the express intent of the parties should prevail in
ascertaining whether the relationship is one of employer-employee or of
independent contractor, commenting that in “our day and age, when a worker decides
to keep his freedom to come in and out of a contract almost at will, when the
hiring person wants to have no liability towards a worker other than the price
of work and when the terms of the contract and its performance reflect those
intentions, the contract should generally be characterized as a contract for
services”: Wolf at para. 120.
[32]
The
idea set out by Décary J.A. in Wolf that the intent of the parties
should be given substantial weight was revisited and clarified in Royal Winnipeg Ballet. That case involved an appeal by the Royal Winnipeg Ballet from a
decision of the Tax Court of Canada which found that the dancers engaged by it
were employees. There was no written contract specifying that the dancers were
independent contractors, but it was abundantly clear from the evidence that all
parties intended that the dancers be contractors, and they all acted
accordingly, such as registering the dancers for GST purposes. The Tax Court
Judge however deemed irrelevant the parties intent since he was of the view
that intent only became relevant when the appropriate test yielded no
definitive result. After reviewing Wiebe Door, Sagaz and Wolf,
Sharlow J.A. held that the parties understanding of their relationship must
always be considered, and that “[t]he judge should have considered the Wiebe
Door factors in the light of this uncontradicted evidence and asked himself
whether, on balance, the facts were consistent with the conclusion that the
dancers were self-employed, as the parties understood to be the case, or were
more consistent with the conclusion that the dancers were employees.”: Royal
Winnipeg Ballet at para. 64. Desjardins J.A concurred in this
approach, while Evans J.A. dissented.
[33]
As
a result, Royal Winnipeg Ballet stands for the proposition that what
must first be considered is whether there is a mutual understanding or common
intention between the parties regarding their relationship. Where such a common
intention is found, be it as independent contractor or employee, the test set
out in Wiebe Door is then to be applied by considering the relevant
factors in light of that mutual intent for the purpose of determining if, on
balance, the relevant facts support and are consistent with the common intent.
As noted however by Sharlow J.A in Royal Winnipeg Ballet at para. 61:
I emphasize again,
that this does not mean that the parties' declaration as to the legal character
of their contract is determinative. Nor does it mean that the parties'
statements as to what they intended to do must result in a finding that their
intention has been realized. To paraphrase Desjardins J.A. (from
paragraph 71 of the lead judgment in Wolf), if it is
established that the terms of the contract, considered in the appropriate
factual context, do not reflect the legal relationship that the parties profess
to have intended, then their stated intention will be disregarded. (emphasis
added)
[34]
There
appears to have been some trouble in the application of the approach set out in
Royal Winnipeg Ballet: see City Water International Inc. v. Canada,
2006 FCA 350, 355 N.R. 77; Combined Insurance Company of America v. Canada (National Revenue), 2007 FCA 60, 359 N.R. 60; Kilbride v. Canada,
2008 FCA 335, [2009] 4 C.T.C. 114, 2009 D.T.C. 5002; and the criticism of
Bowman C.J. in Dean Lang and Sharon Lang v. M.N.R., above.
[35]
In
the case of Ontario youth residential facilities workers, at least one Tax
Court of Canada judge has found, based on Wolf, that the intent of the
parties as set out in their contract should prevail: Woodcock Youth Centre
Limited v. M.N.R., 2007 TCC 443; Unison Treatment Homes for Youth v.
M.N.R., 2007 TCC 447. Nevertheless, as Evans J.A. aptly noted in his
dissenting opinion in Royal Winnipeg Ballet, the parties’ view of the
legal nature of their contract is inevitably self-serving, the parties to the
contract are often not in equal bargaining positions, and the legal
characterization of a contract by the parties should not impact on
third-parties relying on vicarious liability theories.
[36]
However,
properly understood, the approach set out in Royal Winnipeg Ballet
simply emphasises the well-know principle that persons are entitled to organize
their affairs and relationships as they best deem fit. The relationship of
parties who enter into a contract is generally governed by that contract. Thus
the parties may set out in a contract their respective duties and
responsibilities, the financial terms of the services provided, and a large
variety of other matters governing their relationship. However, the legal
effect that results from that relationship, i.e. the legal effect of the
contract, as creating an employer-employee or an independent contactor
relationship, is not a matter which the parties can simply stipulate in the
contract. In other words, it is insufficient to simply state in a contract that
the services are provided as an independent contractor to make it so.
[37]
Because
the employee-employer relationship has important and far reaching legal and
practical ramifications extending to tort law (vicarious liability), to social
programs (eligibility and financial contributions thereto), to labour relations
(union status) and to taxation (GST registration and status under the Income
Tax Act), etc., the determination of whether a particular relationship is
one of employee or of independent contractor cannot simply be left to be
decided at the sole subjective discretion of the parties. Consequently, the
legal status of independent contractor or of employee is not determined solely
on the basis of the parties declaration as to their intent. That determination
must also be grounded in a verifiable objective reality.
[38]
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.
[39]
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 behaviour of each
party, such as invoices for services rendered, registration for GST purposes
and income tax filings as an independent contractor.
[40]
The
second step is to ascertain whether an objective reality sustains the
subjective intent of the parties. As noted by Sharlow J.A. in TBT Personnel
Services Inc. v. Canada, 2011 FCA 256, 422 N.R. 366 at para. 9, “it is also
necessary to consider the Wiebe Door factors to determine whether the
facts are consistent with the parties’ expressed intention.” In other words,
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 colors the relationship. As noted in Royal Winnipeg Ballet at
para. 64, 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 purpose 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.
[41]
The
central question at issue remains whether the person who has been engaged to
perform the services is, in actual fact, performing them as a person in
business on his own account. As stated in both Wiebe Door and Sagaz,
in making this determination no particular factor is dominant and there is no
set formula. The factors to consider will thus vary with the circumstances.
Nevertheless, the specific factors discussed in Wiebe Door and Sagaz will
usually be relevant, such as the level of control over the worker’s activities,
whether the worker provides his own equipment, hires his helpers, manages and
assumes financial risks, and has an opportunity of profit in the performance of
his tasks.
The application of the
test
[42]
In
this case, the Tax Court Judge appears to have proceeded in an inverse order,
dealing with the parties’ intent as set out in their mutual contracts at the
end of his analysis. The first step of the analysis should always be to
determine at the outset the intent of the parties and then, using the prism of
that intent, determining in a second step whether the parties’ relationship, as
reflected in objective reality, is one of employer-employee or of independent
contractor. However, in the circumstances of this case, the inverse order of
analysis followed by the Tax Court Judge is not in itself sufficient to vitiate
the decision since the evidence, taken as a whole, supports the conclusions
reached by the judge.
[43]
In
all these appeals, the appellants drafted contracts stipulating that the mutual
understanding of the parties was that they would be providing their services as
independent contractors, which each of the three concerned workers signed. Ms.
Allaire reported her income from the contract for income tax purposes as income
earned as an independent contractor, and though the evidence is not clear for
the other two workers, they presumably did the same. In light of this evidence,
and in the absence of any claim of duress or of trickery, the intent of all the
parties was to have the workers act as independent contractors for Connor Homes
and Connor Group Homes. The issue before the Tax Court Judge was therefore
whether this contractual intent was reflected in reality, i.e. whether
the contract’s legal effect was in fact one of an independent contractor or of
an employer-employee relationship.
[44]
Despite
the stated intent of the parties to characterize their relationship as that of
independent contractors, the facts of this case suggest otherwise. Based on a
review of these facts, I cannot conclude that the Tax Court Judge erred in
finding that the concerned individuals were not providing their services to the
appellants as their own business on their own account. Rather, as a result of
the significant degree of control the appellants exerted over the three
individuals in the execution of their tasks, the limits on their ability to
profit, and the absence of any significant financial risks or investments, in
essence, these individuals were acting as employees of the appellants.
[45]
First,
it is clear from the record that the appellants exercised a significant degree
of control over the duties exercised by the individuals and the manner in which
these duties were carried out. Connor Homes drafted and issued its own Policies
and Procedures Manual, based on the requirements of the provincial legislation
relating to child and family services. This manual defined and dictated the
procedures to be followed with respect to the provision of services within the
homes. The manual was provided to the individuals, both area supervisors and
child and youth workers alike. As part of their contracts, the individuals were
required to abide at all times by the manual and the policies and rules of
conduct it contained (Testimony of Robert Connor AB vol 2 page 175, lines 18 to
24, pages 191-192, lines 20 to 25; 1 to 20).
[46]
Beyond
the manual, the appellants also controlled the individuals’ duties on a
day-to-day basis. The appellants dictated administrative tasks and imposed mandatory
attendance at staff meetings to discuss work procedures, work scheduling and
day-to-day occurrences in the homes. The appellants also provided guidance and
instruction to the individuals regarding how to manage difficult situations
with clients, as well as marketing activities to be undertaken on their behalf
(Testimony of Rollie Allaire AB vol 2 page 414 line 15 to page 416; line 19;
Zoe Fulton page 509 lines 10-16; Jodi Greer pages 463 and 464 lines 6 to 25 and
1 to 17).
[47]
The
degree of control that the appellants exercised over the work of the
individuals resembled that of an employer. Indeed, it was acknowledged at trial
that the duties exercised by the concerned workers were, in fact, the same as
those exercised by the appellants’ employees (Testimony of Robert Connor AB vol
2 page 207, lines 9-17).
[48]
Furthermore,
the appellants also imposed a number of financial limits on the individuals.
Remuneration for the workers was set either at a fixed hourly rate determined
as a function of the Minister’s allotment for child and youth workers, or at a
rate per diem per child for area supervisors (Testimony of Robert Connor
AB page 224, lines 14-23 and page 227, lines 10-12; page 247, lines 15-20).
While in theory the individuals retained the ability to adjust their pay
through their hours of work, the degree of control exercised by the appellants
over their schedules effectively prevented the individuals from realizing this
benefit. Indeed, the appellants determined the type of hours the individuals
could work, as well as scheduled the actual hours of work, which could amount
to a standard 40 hour work week (Testimony of Ms Rollie Allaire, AB vol 2 page
394, lines 3-12; page 409, lines 17-25; Testimony of Ms. Zoe Fulton page 516,
lines 18-25). Though the workers could refuse certain schedules which were
offered to them, this arrangement closely resembled that of employees employed
in the service industry who retain a limited ability to adjust their work
schedules to their personal schedules.
[49]
The
individuals were not required to take any financial risks, nor were they
required to take out loans or make any investments in the form of capital
assets, specialized equipment or working operating funds. The only requirement
was that each worker be available to take calls on a portable telephone and
have access to a computer, a requirement which is today commonly expected from
many employees, and which cannot alone be an indication that the relationship
is one of contracted services.
[50]
In
this appeal, the appellants emphasized that the workers were expected to use
their motor vehicles to access the sites where their work was performed and to
occasionally see to the transportation of some of the children. This, the
appellants argue, is a factor which should have been considered in determining
the workers status as independent contractors. The extensive use of the
workers’ vehicles for work related activities was certainly a factor which the
Tax Court Judge should have considered in his analysis. However, the analysis cannot
rest on this factor alone. Rather, as noted above, it is the combined force of
the whole scheme of operation which must be considered.
[51]
Taken
together, the reality of this arrangement by which the workers’ tasks were
dictated by manuals and carried out under the supervision of the appellants,
where rates of pay were fixed and hours scheduled by the appellants, and where
no significant financial risks or investments were required of the concerned
workers, is not sufficient to qualify the legal relationship between the
parties as that of an independent contractor arrangement.
[52]
When
considered as a whole, the evidence clearly suggests that the legal
relationship between the appellants and the concerned individuals operated in a
manner consistent with that of employer-employee rather than that of an
independent contractor. The evidence abundantly shows that irrespective of the
terms set out in their respective contracts, the individual workers in this
case were not each operating an independent business for their own account.
Rather, they were working as employees in the appellants’ businesses and for
the appellants’ benefit.
[53]
The
appellants have consequently failed to convince me that the Tax Court Judge
made a palpable and overriding error in assessing the evidence and drawing the
conclusion that these individuals were employees employed in insurable and
pensionable employment. I would therefore dismiss the appeals with one set of
costs to be shared equally between Connor Homes and Connor Group Homes.
"Robert M. Mainville"
“I agree
J.D.
Denis Pelletier”
“I agree
Johanne Gauthier”
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