Citation: 2011 TCC 475
Date: 20111011
Docket: 2011-1047(EI)
BETWEEN:
RUDOLF HEINEKE,
OPERATING AS CREATIVE STAGING SASKATCHEWAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
Docket: 2011-1048(CPP)
BETWEEN:
RUDOLF HEINEKE,
OPERATING AS CREATIVE STAGING SASKATCHEWAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
Docket: 2011-1049(CPP)
BETWEEN:
RUDOLF HEINEKE,
OPERATING AS CREATIVE STAGING SASKATCHEWAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
Docket: 2011-1050(EI)
BETWEEN:
RUDOLF HEINEKE,
OPERATING AS CREATIVE STAGING SASKATCHEWAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Bédard J.
[1]
These appeals are from
decisions by the Minister of National Revenue (the “Minister”) under the Canada
Pension Plan (“CPP”) and the Employment Insurance Act (the “Act”)
that, during the period from January 1, 2008 to December 31, 2008, Darcy J.
Wesolowski and during the period from January 1, 2008 to December 31, 2009 Bob
Rosenfeldt, Adam Scott and Joey Prevost (all four hereinafter collectively
referred to as the “Workers”) were employed by the Appellant in pensionable and
insurable employment.
[2]
The Appellant was in
the business of providing additional crew members to assist with set-up and
take-down at concerts held at the Credit Union Centre in Saskatoon, Saskatchewan (the “Centre”).
[3]
The Minister’s position
is that:
(a) the Workers held insurable employment within the
meaning of paragraph 5(1)(a) of the Act during the relevant periods
since they were employed pursuant to contracts of service with the Appellant;
(b) the Workers held pensionable employment within the
meaning of paragraph 6(1)(a) of CPP during the relevant periods since they
were employed pursuant to contracts of service with the Appellant;
(c) the Workers were not employed by the
Appellant in connection with a circus, fair, parade, carnival, exposition, exhibition
or other like activity; accordingly, the Minister submits that the employment
of the Workers with the Appellant was not excluded from insurable employment
pursuant to subsection 8(1) of the Employment Insurance Regulations (the
“Regulations”), nor was it excepted from pensionable employment pursuant to
subsections 28(1) and 28(2) of Canada Pension Plan Regulations (the “CPP
Regulations”);
(d) if the Court comes to the conclusion
that the Workers were employed by the Payor in connection with a circus, fair,
parade, carnival, exposition or similar activity, the employment of the
Workers:
(i) was by virtue of subsection 8(3) of the
Regulations, not excluded from insurable employment as the total period of the
Workers’ employment with the Appellant exceeded 6 days in both relevant years;
(ii) was, by virtue of
subsection 28(4) of the CPP Regulation, not excepted from pensionable
employment as the total period of the Workers’ employment with the Appellant
exceeded 6 days in both relevant years.
[4]
Each case in which the
question of whether a worker is an employee or an independent contractor arises
must be dealt with on its own facts. The four components (control, ownership of
tools, chance of profit and risk of loss) of the composite test enunciated in Wiebe
Door Services Ltd. v. M.N.R., 87 DTC 5025, and 671122 Ontario Ltd. v.
Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, must each be assigned
its appropriate weight in the circumstances of the case. Moreover, the
intention of the parties to the contract has in recent decisions of the Federal
Court of Appeal become a factor whose weight seems to vary from case to case (Royal
Winnipeg Ballet v. M.N.R., 2006 FCA 87, [2007] 1 F.C.R. 35; Wolf v.
Canada, [2002] 4 F.C. 396; City Water International Inc. v. Canada
(M.N.R.), 2006 FCA 350, 355 N-R 77; National Capital Outaouais Ski Team
v. Canada (M.N.R.), 2008 FCA 132, [2008] 4 C.T.C. 273).
[5]
The facts on which the
Minister relied to render his decision in CPP case 2011-1049(CPP) and EI case
2011-1050(EI) are the same. These facts are in each case set out in paragraph 9
of the Reply to the Amended Notice of Appeal, as follows:
(a)
the Credit Union Centre (the “CUC”) is a large
entertainment complex in Saskatoon, Saskatchewan which hosts concerts and
other entertainment events;
(b)
each entertainment event would bring along its
own crew (the “event crew”) to organize, set up and take down the event;
(c)
the Payor provides additional crew members to
assist the event crew with the set up and take down for events held at the CUC;
(d)
[the] CUC used the Payor almost exclusively to
provide assistance for events;
(e)
the Worker was hired by the Appellant to help
with the set up and take down of the events held at the CUC;
(f)
there was no written contract of employment
between the Payor and the Worker;
(g)
the Payor maintained a list of possible crew members
that changed on a continuous basis due to the transient nature of the workers;
(h)
the Payor’s list of possible crew members had
upwards of 300 names;
(i)
there was no guarantee that the Worker would be
called by the Payor to be a crew member at a particular event or show;
(j)
the work was sporadic in nature and subject to
being called by the Payor;
(k)
the Payor decided which workers to call from its
list;
(l)
the Worker was called more often than other
workers since he was considered by the Payor to be a good worker;
(m) the Worker had the choice of accepting the offer of work for each
event held at the CUC;
(n)
the Worker was able to call the Payor to advise
that he was available to work;
(o)
if the Worker was liked by the event crew and
did [a] good job, he was likely to be called more often;
(p)
the Worker reported to the event crew or was
supervised by the Payor;
(q)
the Payor was responsible to ensure that the
tasks assigned to the Worker were done to the specific requirements of the
promoter/event organizer;
(r)
the events the Worker worked were predominantly
musical performances;
(s)
the Worker was paid an hourly rate of pay by the
Payor;
(t)
the Payor set the hourly rate of pay it paid to
the Worker;
(u)
the hourly rate paid by the Payor could vary
from event to event;
(v)
the Payor paid the Worker by cheque at the end
of each event;
(w) the Worker received total remuneration from the Payor in the amount
of $4,092.25 in 2008 and $2,379.31 in 2009;
(x)
the Payor provided the Worker with workers’
compensation coverage;
(y)
the value of the tools brought by the Worker to
perform his duties was minimal;
(z)
most of the equipment needed by the Worker to
perform his duties was provided by the event crew;
(aa) the Worker had to perform his duties personally;
(bb)the Worker was not paid
any benefits or vacation pay;
(cc) the Worker was not responsible for any operating expenses;
(dd)the Worker had no financial
interest in the business of the Payor;
(ee) the Worker mainly chose to work the events because of the advantage
of attending the concerts;
(ff)
the income earned by the Worker from the Payor
did not make up a large percentage of the Worker’s total income;
(gg) the Worker did not work at the same event for more that [sic]
7 days in a calendar year; and
(hh) the Worker worked between two to three concerts a month in both 2008
and 2009.
[6]
The facts on which the
Minister relied to render his decision in CPP case 2011-1048(CPP) and EI case
2011-1047(EI) are the same. These facts are in each case set out in paragraph 9
of the Reply to the Amended Notice of Appeal, as follows:
(a)
the Credit Union Centre (the “CUC”) is a large
entertainment complex in Saskatoon, Saskatchewan which hosts concerts and other entertainment events;
(b)
each entertainment event would bring along its
own crew (the “event crew”) to organize, set up and take down the event;
(c)
the Payor provides additional crew members to
assist the event crew with the set up and take down for events held at the CUC;
(d)
[the] CUC used the Payor almost exclusively to
provide assistance for events;
(e)
the Workers were hired by the Appellant to help
with the set up and take down of the events held at the CUC;
(f)
there were no written contracts of employment
between the Payor and the Workers;
(g)
the Payor maintained a list of possible crew
members that changed on a continuous basis due to the transient nature of the
workers;
(h)
the Payor’s list of possible crew members had
upwards of 300 names;
(i)
there was no guarantee that the Workers would be
called by the Payor to be a crew member at a particular event or show;
(j)
the work was sporadic in nature and subject to
being called by the Payor;
(k)
the Payor decided which workers to call from its
list;
(l)
the Workers had the choice of accepting the
offer of work for each event held at the CUC;
(m) the Workers were able to call the Payor to advise that they were
available to work;
(n)
if the Workers were liked by the event crew and
did [a] good job, they were likely to be called more often;
(o)
the Workers reported to the event crew or were
supervised by the Payor;
(p)
the Payor was responsible to ensure that the
tasks assigned to the Workers were done to the specific requirements of the
promoter/event organizer;
(q)
the events the Workers worked were predominantly
musical performances;
(r)
the Workers were paid an hourly rate of pay by
the Payor;
(s)
the Payor set the hourly rate of pay it paid to
the Workers;
(t)
the hourly rate paid by the Payor could vary
from event to event;
(u)
the Payor paid the Workers by cheque at the end
of each event;
(v)
the Payor provided the Workers with workers’
compensation coverage;
(w) the value of the tools brought by the Workers to perform their
duties was minimal;
(x)
the Workers had to perform their duties
personally;
(y)
the Workers were not paid any benefits or
vacation pay;
(z)
the Workers were not responsible for any
operating expenses;
(aa)the Workers had no
financial interest in the business of the Payor;
(bb)
the Workers mainly chose to work the events
because of the advantage of attending the concerts; and
(cc) the Workers did not work at the same event for more that [sic]
7 days in a calendar year.
[7]
With the consent of the
Respondent, paragraph 6.9 of the Amended Notice of Appeal in CPP case 2011-1049
(CPP) was further amended to read as follows:
6.9 The Appellant says that Mr. Prevost’s total annual earnings for
2009 (from working for the Appellant) were $2,379.31. The Appellant says that
the annual basic exemption amount for CPP contributions in 2009 was $3,500.
Therefore, Mr. Prevost earned $1,120.69 less than the annual basic exemption
amount.
[8]
The Appellant’s
testimony, which seemed credible, was essentially the following:
(a) The Centre is a large entertainment
complex in Saskatoon which hosts large concerts and other
entertainment events.
(b) The Appellant provides additional crew
members to assist with set-up and take-down for events held at the Centre.
(c) The Centre is contacted by an “event
promoter”. The event promoter advises the Centre that the entertainer (e.g.,
The Eagles) requires additional stage crew.
(d) The Centre then contacts the Appellant
and advises him of the stage crew required, as well as the date and time of the
event. He does not have a formal written contract with the Centre. He has no
guarantee that the Centre will contact him for additional stage crew. The
Appellant added that the work is sporadic because it is dependent on events
coming to the Centre and is further dependent on the Centre contacting him to
request additional crew for the events. In addition, there may be several
months in a year when there are no events and therefore no requests for
workers.
(e) When he receives a request for workers
from the Centre, he prepares a quote which is forwarded to the event promoter
through the Centre. If the event promoter approves the quote, the Appellant
receives confirmation of this through the Centre.
(f) He becomes aware of potential crew
members largely by “word of mouth”. His list of possible crew members has
upwards of 300 names. This list changes on a continuous basis due to the
transient nature of the workers. Once advised by the Centre of the number of
crew members required for a particular event, he looks at his list to obtain the
requisite number of workers.
(g) He does not have a regular set of crew
members. If a crew member works one event or concert, that person may not be
called upon to work again for a long time. However, the Appellant admitted that
he is inclined to call more often the workers who are liked by an entertainer’s
crew (the “base crew”) and who did a good job. He called those good workers his
favourites. I would point out immediately that in 2009 the Centre used the
Appellant’s services for 30 concerts or events and that The Appellant used
the services of Joey Prevost, Adam Scott and Bob Rosenfeldt for 14, 12 and 18
respectively of those concerts or events.
(h) The entertainer brings along his own base
crew. The Appellant provides additional workers to support the base crew. When
the workers arrive (at the time determined by him) at the Centre they report to
him. He then assigns them to certain special tasks. From that moment, the
workers work under the supervision and control of the base crew. The Appellant
also explained that he is present all day at the Centre on the day of an event in
order to, among other things, ensure that the tasks assigned to the workers are
done to the specific requirements of the entertainer, and possibly to fire
workers who are not meeting the entertainer’s requirements.
(i) He asks all workers to bring certain
equipment or tools with them to the Centre. For example, all workers are
responsible for bringing a pair of gloves and a crescent wrench, and riggers
are required to bring their own ropes and harness. If a worker forgets to bring
those items, the Appellant does not provide them. The Centre or the entertainer
furnishes any extra equipment or tools. The Workers were not responsible for
any operating expenses and they had no financial interest in the Appellant’s
business.
(j) The crew members he hires are paid an
hourly wage, which varies by event and by task. For example, the Appellant
explained that riggers typically are paid a higher hourly wage than other
workers on account of the more dangerous nature of the job. The hourly rate of
pay is not negotiable. His rule in this regard is “take it or leave it”. The Workers
were paid by cheque at the end of each day. He also provided the Workers with
worker’s compensation coverage. He provides the Centre with an invoice for the
cost of the workers supplied for an event. Once the invoice is approved, he
receives payment directly from the Centre. He pays a worker for a minimum of 3
hours a day because he thinks labour laws oblige him to do so.
(k) The Workers were free to engage a
helper provided that the helper was acceptable to the Appellant. I would point
out in this regard that the helper was paid not out of the Worker’s pay, but
directly by the Appellant.
(l) The Workers were free to send a
substitute provided that he was acceptable to the Appellant. I would point out
in this regard also that the substitute was paid not by the Worker but directly
by the Appellant.
(m) He considers all the workers he hires to
be subcontractors. However, the Appellant admitted that he never discusses the
workers’ status with the workers he hires.
[9]
Mr. Wesolowski’s
testimony, which seemed credible, was essentially the following:
(a) He was hired under a verbal agreement.
He never discussed with the Appellant the legal characterization of the
services rendered to the Appellant. However, he considers that the relationship
was one of part-time employment.
(b) He was paid an hourly rate of $10 to
$12. The Appellant determined his rate of pay. The rate of pay was not
negotiable. He was paid at the end of each day he worked. The Appellant kept a
record of his hours worked.
(c) Mr. Wesolowski did not incur any
expenses personally in performing services for the Appellant.
(d) His work was essentially physical work
consisting of setting up and taking down a stage and of loading materials.
(e) He had no registered business name or
number, no GST number, no business bank account, no other clients. He never
advertised his services.
(f) On one occasion he brought a helper to
the Centre. The Appellant hired the helper and paid him directly.
(g) When he arrived (at the time determined
by the Appellant) at the Centre, he reported to the Appellant, who then
assigned him certain specific tasks. From that moment, he worked under the
supervision and control of the base crew. However, he considered that the
Appellant was his principal boss. He reported to the Appellant with regard to
complaints about his work.
[10]
Mr. Joey Prevost’s
testimony was essentially similar to Mr. Wesolowski’s.
[11]
The evidence also
revealed the following:
(a) Joey D. Prevost worked for the
Appellant 21 days in 2008 and 14 days in 2009.
(b) Bob Rosenfeldt worked for the Appellant
24 days in 2008 and 18 days in 2009.
(c) Adam Scott worked for the Appellant 18
days in 2008 and also 12 days in 2009. Exhibit I-1 and paragraph 8(1) supra.
(d) Darcy J. Wesolowski
worked for the Appellant 5 days in 2008.
Analysis and Conclusion
[12]
I wish to begin with a
few observations concerning the intention factor. First of all, if the intent
of the parties is to be a determinative or tie-breaking factor, that intent
must be shared by both parties. In other words, if there is no meeting of the
minds and the parties are not ad idem, intent cannot be a factor. My
second observation is that, where the parties’ intention cannot be ascertained
(which is the case here), it is quite proper, indeed necessary, to look at all
the facts to see what legal relationship they reflect. In that regard, the four
components of the composite test enunciated in Wiebe Door are relevant
and helpful in ascertaining the intent of the parties to the contract and the
legal nature of the contract.
[13]
Turning now to the
facts, what factors suggest that the Workers were employees of the Appellant?
Responsibility for investment and management
1.
The Workers had no such
responsibility.
Chance of profit / Risk of loss
2.
The Workers had no
expenses and no liability exposing them to a risk of loss.
3.
There was in reality no
opportunity for them to increase their income. The ability to work more hours
and therefore to make more money does not constitute, in my opinion, a chance
of profit.
Control
4.
The Workers had to
report to the Appellant at the start of their shift. The Appellant then assigned
the Workers their various duties for the day. In other words, he told the
Workers at the beginning of their shifts to whom they were to go. In fact, from
that moment, the Appellant delegated most of his authority over the Workers to
the base crew boss.
5.
The Appellant was
present all day at the Centre to ensure that, among others things, the tasks
assigned to the Workers were performed to the specific requirements set out by
the base crew and to terminate the employment relationship with any workers who
were not meeting those requirements. The evidence clearly revealed that he
terminated the relationship with a worker when an event promoter or a member of
the base crew complained about that worker’s work.
6.
The Workers’ hours were
tracked by the Appellant and by him alone. The Workers did not invoice the
Appellant for their hours worked.
7.
This factor clearly
supports a finding that the Workers were in a relationship of subordination
with the Appellant. Darcy Wesolowski in particular indicated that in the
hierarchy of people he was under, the Appellant was at the top.
Tools
8.
Given the low value of
the tools provided, I am of the opinion that this factor is neutral. In other
words, I am of the opinion that this factor should not carry much weight in the
overall decision.
[14]
I am of the opinion that
there are no significant factors suggesting that the Workers were in business
on their own account. The insignificant factors raised by the Appellant’s
counsel cannot outweigh the overall reality that the Workers were not in
business on their own account.
[15]
The question I now have
to answer is the following: were the Workers employed by the Appellant in
connection with a circus, fair, parade, carnival, exposition or other like
activity?
[16]
Since counsel for the
Appellant essentially repeated during the hearing her written arguments on this
point submitted to the Court, I am of the opinion that it is useful to
reproduce in full those written submissions, which are the following:
37. It is the position of the Appellant that the Workers should be
excluded from insurable and pensionable employment, because the work of the
Workers can be categorized under the phrase “or other like activity” from
Regulation 8 of the EI Regulations, and Regulation 28 of the CPP Regulations.
38. The Respondent has chosen to take a narrow interpretation of
Regulation 8 of the EI Regulations and Regulation 28 of the CPP Regulations, to
limit the application of this exclusion to only “music festivals”.
39. However, the Appellant says that this Honourable Court has
previously found the phrase “or other like activity” (in the context of EI
Regulations and CPP Regulations) can extend to work other than for music
festivals.
40. In [Lotfi] v. Canada, this Court was asked to
consider whether a pizza delivery man who worked varied hours over a several
day period was considered to be under “insurable employment”. The Court
concluded he was not and relied on EI Regulation 8(1)(a)(ii), stating as
follows:
14
The evidence revealed that the employment of the Appellant lasted only a few
days, two or three, according to the information provided by the Payor. The
short duration of this employment has the effect of excluding it from insurable
employment in accordance with subparagraph 8(1)(a)(ii) of the Employment
Insurance Regulations, which I will reproduce below:
8.(1) Subject
to subsections (2) to (4), the following employments are excluded from
insurable employment:
(a) employment of a person by an
employer, other than as an entertainer, in connection with a circus, fair,
parade, carnival, exposition, exhibition or other similar activity if the
person:
[...]
(ii) is
employed by that employer in that employment for less than 7 days in a year.
15 This
Court must accordingly conclude that the employment of the Appellant was
excluded from insurable employment. However, in the opinion of the
Minister, the employment of the Appellant was not insurable because he was
providing services to the Payor under a contract for services and not under a
contract of service. This Court is of the opinion that the circumstances in the
instant case support this finding by the Minister, since an examination of the
facts in light of the criteria established in Wiebe Door Services Limited v.
M.N.R., [1986] 3 F.C. 553 (F.C.J.) supports this conclusion.
[emphasis
added]
[Lotfi]
v. Canada, 2005
TCC 270 [Tab J]
41. The
Appellant says that in interpreting Regulation 8(1)(a) in [Lotfi], this
Court found that even a pizza delivery man could be categorized under the
phrase “other similar activity”. It is the position of the Appellant that if a
pizza delivery man fits the qualifications for application of this phrase, surely
stage crew working for a music concert could be categorized under this phrase a
well.
[17]
I am of the opinion
that the Appellant cannot rely on the Lotfi case to argue that the
employment of the Workers was excluded from insurable employment pursuant to
subsection 8(1) of the Regulations and also were excepted from pensionable
employment pursuant to subsections 28(1) and 28(2) of the CPP Regulations. In
the Lofti case, Justice Savoie wrongly held that the employment of the
worker was excluded from insurable employment pursuant to subsection 8(1) of
the Regulations only because the evidence revealed that the employment lasted only
two or three days. I am of the opinion that employment is excluded from
insurable employment pursuant to subsection 8(1) of the Regulations and
excepted from pensionable employment pursuant to subsections 28(1) and 28(2) of
the CPP Regulations if the following three conditions are met:
(i) the employment must
be in connection with a circus, fair, parade, carnival, exposition, exhibition,
or other similar activity;
(ii) the worker must
not be regularly employed by the employer; and
(iii) the worker must
be employed by that employer in that employment for less than seven days in a
year.
In the Lotfi case the conditions stated
in (ii) and (iii) above were met. However, I am of the opinion that the
condition stated in (i) above was not met. Indeed, I simply do not see how the
activity of delivering pizza could be considered similar to an activity in
connection with such things as a circus, fair, parade, carnival, exposition or
exhibition.
[18]
However, I am of the
opinion that a “concert” is an activity similar to a circus, fair, parade,
carnival, exposition or exhibition in that it is generally a travelling event
(i.e., an event moving from town to town) and an event the purpose of which is
essentially to entertain the public.
[19]
Finally, the Appellant
submits that by virtue of subsection 8(3) of the Regulations, the
employment of the Workers was not excluded from insurable employment and by
virtue of subsection 28(4) of the CPP Regulations, it was not excepted
from pensionable employment essentially because the work at each entertainment
event was performed for a different promoter, and accordingly, in determining the
number of days worked in a year, one should calculate the number of days worked
per event. Since counsel for the Appellant essentially repeated during the
hearing her written arguments in this regard submitted to the Court, I am of
the opinion that it is useful to reproduce in full those written arguments,
which are the following:
42. The Appellant recognizes that in order to be excluded from
insurable and pensionable employment pursuant to Regulation 8 of the EI
Regulations and Regulation 28 of the CPP Regulations, a worker must also: (a)
not be in the “regular employment” of the Appellant; and (b) must not have
worked more than 6 days in the year.
43. The Appellant says that the Workers are not in the “regular
employment” of the Appellant. The Appellant says that each of the Workers is
one of a list of potential workers who can be called on by the Appellant to
work at entertainment events throughout the year. There is no guaranteed number
of hours or days that the Workers will work in a year, and there is no
guarantee that an individual worker would even be contacted by the Appellant.
44. Further, it is the position of the Appellant that because each
entertainment event is worked for a different promoter, in calculating the
number of “days” worked in a year, one should instead calculate the number of
days worked per event.
45. The Appellant says that each of the “events” that took place at
CUC during the years subject to appeal did not last for more than 6 days.
46. As support for this interpretation of the provision, the Appellant
relies upon Local 212 (I.A.T.S.E.) v. Canada, a decision of this
Honourable Court with respect to the predecessor legislation, the Unemployment
Insurance Act, 1971 (Canada).
Local 212 (I.A.T.S.E.) v. Canada,
[1988] T.C.J. No. 537 [Tab K].
47. In Local 212, the Minister had determined that the
appellant union, which consisted of motion picture and stage employees, was the
deemed employer of the workers it supplied to producers. The union was paid at
set rates for the workers’ time, deducted two percent of the wage earned by
each worker, and remitted the balance to the worker. It did not withhold any
employee source deductions or remit unemployment insurance premiums in relation
to any of the workers.
48. This Court overturned the decision of the Minister, finding that
the workers were not employed by the union for the following reason:
The Appellant does not generate any employment. Instead
the Appellant waits until there is a call for services for personnel by some
performing body. The Appellant then submits at least two names of the type of
workers required to the theatre company, exhibition or producer of the show
etc. Remuneration for the different trades or skills is negotiated by the union
beforehand. The person hiring the workers must sign an agreement similar to
Exhibit A4 filed with these proceedings. The hiring organization outlined what
it wants done. The Appellant assigns the workers to the job. When the job is
completed the Appellant collects the total remuneration for the work and allocates
it amongst the personnel involved after deducting 2% from the gross wages to
pay for the union operating expenses as agreed upon by the union members.
49. The Court also held that the workers were excluded
from insurable employment pursuant to Regulation 15(1) of the Unemployment
Insurance Regulations (which reads similar to the current version of the
relevant provisions in the EI Regulations and CPP Regulations):
Sec. 15(1) The following employments are, subject to
subsection (2), excepted from insurable employment:
(a)
employment, other than as an entertainer, of a
person in connection with a circus, fair, parade, carnival, exposition, or
similar activity if that person
(i)
is not regularly employed by the employer who
employs him in that employment; and
(ii)
is employed by that employer for less than seven
days in a year.
50. This Court reviewed a list of groups or organizations who needed
the workers over the course of the year (i.e., Calgary Opera, Shrine Circus
etc.) and concluded as follows with respect to the three conditions of
Regulation 15:
The workers in question were not entertainers, and thus
fulfilled the first requirement of excepted employment.
The second requirement for excepting the employees from
insurability under this section is that the workers are not regularly employed
by the employer who employed them in that employment…
Some of these performances were probably a “one shot” effort. Others
like the Shrine Circus are probably repeated annually. Assuming, for example,
productions like the Shrine Circus are repeated annually, there is no guarantee
that the same employees are employed by the Circus each time…. The workers in
question thus fulfill the second requirement for exemption from insurability
set out in section 15 of the Regulations. The third requirement for exemption
from insurability under section 15 as aforesaid is that the employee “is
employed by that employer for less than seven days in a year”…. I find
the employees in question were employed for less than seven days by each
producer of a show or performance. The employees in question meet the
requirements set out in section 15(1)(a) of the Unemployment Insurance
Regulations and there [sic] employment is excepted from insurability.
[emphasis added]
51. The Appellant says that the Court in Local 212
interpreted the phrase “employed for less than seven days in a year” to mean
employed for less than seven days by each producer of a show or performance.
The Appellant says that none of the events during the years 2008 or 2009
required workers for more than 6 days. Further, even if the same event was to
return to CUC, there is no guarantee that the same workers would be contacted
to work, or would be available to work again.
52. It is the position of the Appellant that even if this Honourable
Court finds that the Workers are employees of the Appellant, the Workers should
be excluded from insurable and pensionable employment pursuant to the exception
found in Regulation 8 of the EI Regulations and Regulation 28 of the CPP Regulations.
The Workers are not entertainers, are not regularly employed by the Appellant
and are employed less than seven days in a year by each promoter of an event at
CUC.
[20]
I am of the opinion
that the Appellant cannot rely on the Local 212 case since in that case the
Court found that the employees were employed for less than seven days by each
producer of a show or performance. In other words the Court found that the
employees in question had multiple employers in the year. I am of the opinion
that in the present case the Workers had only one employer in the years at
issue and that that employer was the Appellant. Consequently, I am of the
opinion that, by virtue of subsection 8(3) of the Regulations, the
employment of Mr. Prevost, Mr. Rosenfeldt and Mr. Scott in 2008 and 2009 was
not excluded from insurable employment and by virtue of subsection 28(4)
of the CPP Regulations, it was not excepted from pensionable as the total duration
of each of those workers’ employment with the Appellant exceeded six days in both
2008 and 2009. I note that the evidence revealed that
(i) Mr. Prevost worked for
the Appellant 21 days in 2008 and 14 days in 2009;
(ii) Mr. Scott worked for
the Appellant 18 days in 2008 and also 12 days in 2009;
(iii) Mr. Rosenfeldt worked
for the Appellant 24 days in 2008 and 18 days in 2009.
[21]
However, I am of the
opinion that the employment of Mr. Wesolowski in 2008 was excluded from
insurable employment pursuant to subsection 8(1) of the Regulations and was
excepted from pensionable employment pursuant to subsections 28(1) and 28(2) of
the CPP Regulations since the evidence revealed that he worked for the
Appellant for only 5 days in 2008.
[22]
For these reasons, I am
of the opinion that:
(i) during the period
from January 1, 2008 to December 31, 2009, Bob Rosenfeldt, Adam Scott and Joey
Prevost were employed by the Appellant in pensionable and insurable employment;
(ii) during the period
from January 1, 2008 to December 31, 2008, Darcy J. Wesolowski was not employed
by the Appellant in pensionable and insurable employment.
Signed at Ottawa,
Canada, this 11th day of October 2011.
"Paul Bédard"
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