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Citation: 2007TCC123
Date: 20070319
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Dockets: 2006-2453(EI)
2006-2454(CPP)
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BETWEEN:
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NATIONAL CAPITAL OUTAOUAIS SKI TEAM,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
and
JEAN BELANGER,
Intervenor.
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REASONS FOR JUDGMENT
Campbell J.
[1] The
Appellant has appealed a ruling made by the Minister of National Revenue (the
“Minister”) in which it was determined that Jean Belanger, the “Intervenor”,
(the “Worker”) was employed in insurable employment by the Appellant under a
contract of service during the period September 1, 2004 to December 13, 2005 pursuant
to paragraph 5(1)(a) of the Employment Insurance Act. The Appellant also
appealed the Minister’s ruling that the Worker was employed in pensionable
employment by the Appellant for the same period pursuant to paragraph 6(1)(a)
of the Canada Pension Plan. These appeals were heard together on common
evidence.
[2] The issue
is whether the Worker is an employee or an independent contractor.
[3] The
Minister relied on the following assumptions:
(a) the Appellant is a
non-profit organization that provides a high performance athlete ski program;
(b) the regular ski season
is from August to April;
(c) the Appellant’s
committee controls the day-to-day operations;
(d) Paul Cook is the
president and chairperson of the Appellant’s board;
(e) the Worker was hired
under a written agreement, which was never signed;
(f) the Worker’s duties
included the following:
- prepare
gates on daily basis
- prepare
batteries for drills, video, timing system etc.
- set up of
training courses and timing system
- prepare
equipment for travel
- maintain
equipment
- monitoring
off snow training
- teach ski
racing to athletes
- drive team
van and care for athletes on trips
- all other
duties related to support head coach
(g) the Worker performed his
duties at different ski areas;
(h) the Worker was paid
$3,400.00 per month;
(i) the Worker was paid by
cheque to his personal name;
(j) the Worker was
reimbursed for expenses incurred in the performance of his duties;
(k) the Worker did not
receive paid vacation nor vacation pay or any benefits;
(l) the Worker’s hours of
work stated to be as long as athletes were in his care and as determined by the
competition schedule;
(m) the Worker’s hours of
work were not recorded;
(n) the Worker was reported
to the Appellant’s Head Coach as deemed necessary;
(o) the Head Coach kept the
Appellant’s Board apprised of their work at the monthly meeting;
(p) the Head Coach
supervised the Worker on and off the hill;
(q) the Head Coach
determined the training program and the competition schedules;
(r) the manuals for coaching
are provided by the Coach’s federation and the coaches obtain the manual and
other materials to coach, on their own;
(s) the Worker was required
to obtain approval from the Appellant’s Board prior to taking actions if it was
an instance that money was required of the actions were not defined in the
program;
(t) the Worker was subject
to the coaching requirement of being a fully certified Level III and in good
standing with the Canadian Ski Coaches Federation (the “CSCF”);
(u) the Worker had to pay
his annual CSCF membership dues;
(v) the Worker was also
required to hold a valid driver’s license that permitted the driving of a 15
passenger van;
(w) the Worker had third
party liability insurance coverage that was included in his annual CSCF
membership fees.
(x) the coaches are
responsible for their own training and upgrades;
(y) the Worker was provided
with an uniform with the sponsor logo on it;
(z) the Worker was provided
his ski equipment by the sponsor but had to return it at the end of the season;
(aa) the parent/coach
complaints were resolved by the parties or the management committee;
(bb) the Worker had to provide
his services personally but an alternate could be hired if necessary with the
Appellant’s approval;
(cc) the Worker was performing
services exclusively for the Appellant;
(dd) the Appellant had the
right to terminate the Worker’s services;
(ee) other workers were
performing similar duties.
Facts
[4] The
Appellant relied on the evidence of two witnesses, Allistar Scott (a former
Head Coach for the Appellant) and Lisa Bailey (the treasurer for the
Appellant). The Respondent relied on the evidence of the Worker, Jean Belanger.
Allistar Scott
[5] The
Appellant is a non-profit organization with a mandate to develop competitive
ski racers in Canada. The Appellant has two tiers of athletes, the
Juvenile Team (13 and 14 year olds) and the FIS Team (15 years and older).
[6] The
Appellant is governed by provincial rules for ski organizations and Alpine
Canada, which oversees all ski racing in Canada. Alpine Canada is
responsible for the technical and ethical training of coaches, which it carries
out through contracts with the Canadian Ski Coaches Federation (“CSCF”), and
for the scheduling of national level competitions, around which provincial
organizations develop their athletic programs.
[7] The
Appellant’s members are volunteer parents, some of whom sit on a management
committee (the “Committee”) that meets at and operates from the members’ homes.
The Committee approves all contracts and generally seeks to hire coaches that
are level III certified with the CSCF.
[8] Allistar
Scott is a former FIS Head Coach and is currently a member of the Committee.
[9] Mr. Scott
explained that the Worker was the Juvenile Head Coach during the 2004-2005
season. During that time, the Worker was loosely supervised by the FIS Head
Coach. His duties included developing a program of activities for the athletes
that aligned with the Alpine Canada competition schedule and prepared the
junior athletes for their eventual transition to the FIS Team. Mr. Scott
admitted that he may have provided the Worker with a previous year’s training
schedule for him to use as a template for designing that season’s program. The
Worker also arranged all of the Juvenile Team’s training on ski hills, both
within and outside the region, and all travel arrangements including hotels and
lift tickets.
[10] When the
Worker became the Assistant to the FIS Head Coach in the fall of 2005 his
duties changed dramatically, according to Mr. Scott, because of the FIS Team’s
greater athletic proficiency. In this new role, the Worker merely assisted and
was directly supervised by the FIS Head Coach, who had sole responsibility for
developing the FIS Team athletic programs. The Worker had no ability to decide
where to train, which days to train, the hours or any other portions of the
scheduling.
[11] Because the
outside organizations set the racing schedules, the athletes had to be “on snow
in summer”. For this reason they traveled to Chile to ski in August and to Switzerland
in the fall. Mr. Scott recalled that the Worker was required to take part in
the Switzerland trip.
Lisa Bailey
[12] Lisa Bailey
confirmed Mr. Scott’s evidence that the Appellant’s organization is composed of
parents, some of whom sit on the Committee, and that its activities are
overseen by the provincial organizations. She added that funding is derived
from various programs such as sponsorship, provincial sports organizations,
program fees, as well as charity auctions and bingos.
[13] Ms. Bailey
looks after the budget in consultation with Paul Cook, the President and
Chairperson of the Committee, and with the FIS Head Coach. While the Worker was
the Assistant to the FIS Head Coach, the evidence seemed to indicate that he had
no budget related responsibilities. However, she stated that when the Worker
was the Juvenile Head Coach, he was advised of his team’s budget and was
requested to plan his programs and travel arrangements for the athletes within
those parameters. Any budget over-runs required the Committee’s approval.
Responsibility for such over-runs remained with the Appellant and not the
Worker.
[14] She stated
that the Appellant provided rental vans and trailers to the coaches for
transporting the athletes to the various training sites. The coaches were
required to be licensed to drive these vehicles. The Appellant also provided
some stock, such as gates and timers. The coaches were required to wear team
uniforms, with sponsorship logos, so that they could be identified as a team on
the ski hills. The coaches provided their own ski equipment, cell phones for
communication and computers. Ms. Bailey suspected that the Worker was
supervised both on and off the ski hill.
[15] She stated
that coaches could hire substitute coaches and that the Worker actually did so
on one occasion, when some of his team qualified for events in Ontario and
some others, in Quebec. He accompanied part of his team to Quebec and
arranged for another coach to accompany the remainder of the team to Ontario.
She testified that although the Worker did not obtain the Committee’s approval
for this second coach, it is quite likely that he did obtain the parents’
permission. The Worker submitted the expenses incurred by this additional coach
to Ms. Bailey for reimbursement by the Appellant.
[16] Ms. Bailey
also stated that the Worker was required to execute an agreement, which
outlined his duties and the duration of the contract, and which stated that he
would be an independent contractor. Ms. Bailey confirmed that all coaches,
including the Worker, were paid by cheque but that no deductions were taken.
She also stated that there would be nothing that would prevent the coaches from
working for other organizations and in fact some of them had other businesses
and jobs.
Jean Belanger
[17] The Worker
testified that he applied for employment with the Appellant and began in the
position of Juvenile Head Coach in September 2004. He stated that he was offered
$18,000.00 (Exhibit R-1, Tab 1) and that the amount of pay was not dependent
upon the number of athletes that he might be coaching, but rather was a pre-determined
amount for the entire season. He was required to have level III certification
and to be a member of CSCF, which provides liability insurance to its members.
He was asked to sign an agreement that stated he would be an independent
contractor.
[18] When he was
hired he was provided with program criteria (Exhibit A-1, Tab 1) and a previous
season’s home training schedule, which he was to follow when developing his
athletic program to ensure that the Appellant maintained a consistent training
philosophy. When he was first hired, he attended a meeting, along with other
coaches, where he was shown videos pointing out ski tactics and techniques that
the coaches should strive to achieve. As the season progressed, he attended
monthly Committee meetings to report on team progress.
[19] He was
provided with an Assistant Coach, but he had no part in hiring or paying him.
He was allocated a budget and was in regular communication with the treasurer,
Lisa Bailey, to ensure that he stayed within this budget. He was reimbursed for
all expenses he incurred in carrying out his duties, including fuel for the
van, hotel, meals, training space on the hills and long distance cellular
charges. He completed and submitted, along with his receipts, expense report
forms that had been provided to him by the Appellant. Any unforeseen expenses
required approval.
[20] He did use
some of his own personal items, such as his own skis and poles, computer,
cellular phone and video camera. However, he was required to wear the team
uniform (winter jacket and ski pants, plus spring jacket), which the Appellant
provided. He was also provided with a rental van with trailer and ski
equipment, gates, tools, drills, drill bits, flags, brush gates and radios. If
the equipment was broken, the Appellant paid the expenses. In the Worker’s
opinion, without the race equipment provided by the Appellant, he would be
teaching skiing but not race skiing.
[21] He
regularly traveled within the region with the athletes for provincial and
national championships, though he did not determine the location or timing of
these trips. During his position as Juvenile Head Coach he recalled one
occasion where some members of his team qualified for the provincial
championships in Ontario and others, in Quebec. While he and his Assistant
Coach accompanied some of the athletes to the Quebec competitions, another
coach was hired to accompany the one athlete that qualified in Ontario. He
obtained approval for this coach from the parents and funding approval from
Lisa Bailey, the treasurer. He eventually submitted an expense report to Lisa
Bailey on this individual’s behalf, which the Appellant paid.
[22] When he
coached the Juvenile Team he said that he could not assume any other coaching
positions, as he had a full time schedule. He also stated that training others
would be frowned upon by the Committee, as it would be assisting the
competition.
[23] In August
2005 the Worker became the Assistant to the FIS Head Coach. He remained in this
position until December 2005. His agreement stipulated that he was to be paid
$22,000.00. Again this rate of pay was not dependent on the number of athletes
he coached or the number of hours he worked. His duties in this position
included driving a second van, moving equipment on the hills, maintaining
training schedules and assisting in training the athletes. Unlike his position
as Juvenile Head Coach, he had no input into the training schedules or the
travel arrangements. Rather, his duties were carried out pursuant to the
instructions of the FIS Head Coach, who also determined the training schedule
for the season. He was required to attend all training sessions, including
three weeks in Chile, three weeks in Switzerland and two weeks in British Columbia.
[24] The same
equipment was provided again by the Worker and the Appellant, as in the
position of Juvenile Head Coach. His computer was used primarily to show his
team video footage that he had recorded on his camera, but it was not one of
his main pieces of equipment required to complete his duties. As before, he was
reimbursed for all his expenses.
Appellant’s Position
[25] Appellant counsel argues that, as a result
of recent case law since Sagaz Industries Canada Inc. v. 671122 Ontario Ltd.,
[2001] 2 S.C.R. 983, the most important consideration, when evaluating a work
relationship, is the parties’ intent. Counsel suggests that Wolf v. The
Queen, 2002 DTC 6853 and The Royal Winnipeg Ballet v. M.N.R., [2006]
F.C.A. 87 state that if the intent is clear, there is no need to look at any
other facets of the relationship. It is only where intent is unclear from the
outset that other facets should have any bearing.
[26] Counsel submits that the Appellant always
intended that the Worker would be an independent contractor. The Worker, on the
other hand, never disputed that he was an independent contractor until he tried
to collect employment insurance. In addition, the written agreement clearly
outlines that the parties intended that the Worker would be an independent
contractor. Counsel argues that given this intent was clear at the outset, no
other factors need to be considered.
[27] Counsel also submitted that the case of The
Royal Winnipeg Ballet was strikingly similar to the present appeal and that
even the additional Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C.
553 factors clearly show that the Worker was an independent contractor.
Respondent’s Position
[28] Respondent counsel argued that despite
recent developments, Sagaz Industries is still the appropriate authority.
Wolf and The Royal Winnipeg Ballet merely clarified that to determine the
parties’ relationship, the Court must consider all of the factors in Wiebe
Door, as well as the parties’ intent. Counsel suggests that reviewing the
factors of control, tools, risk of loss and chance of profit, as well as the
parties’ intent, clearly demonstrates that the Worker was an employee of the
Appellant.
Analysis
[29] Although Sagaz Industries dealt with
the issue of vicarious liability, as part of his reasons, Major J. reviewed the
differences between an employee and an independent contractor. After referring
to the Wiebe Door factors he stated at paragraphs 46, 47 and 48:
[46] In my opinion, there is no one
conclusive test which can be universally applied to determine whether a person
is an employee or an independent contractor. Lord Denning stated in Stevenson
Jordan, supra, that it may be impossible to give a precise definition of
the distinction (p. 111) and, similarly, Fleming observed that “no single test
seems to yield an invariably clear and acceptable answer to the many variables
of ever changing employment relations …” (p. 416). Further, I agree with
MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, supra,
at p. 38, that what must always occur is a search for the total relationship of
the parties:
[I]t is exceedingly doubtful whether the
search for a formula in the nature of a single test for identifying a contract
of service any longer serves a useful purpose. … The most that can profitably
be done is to examine all the possible factors which have been referred to in
these cases as bearing on the nature of the relationship between the parties
concerned. Clearly not all of these factors will be relevant in all cases, or
have the same weight in all cases. Equally clearly no magic formula can be
propounded for determining which factors should, in any given case, be treated
as the determining ones.
[47] Although there is no universal
test to determine whether a person is an employee or an independent contractor,
I agree with MacGuigan J.A. that a persuasive approach to the issue is that
taken by Cooke J. in Market Investigations, supra. 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. In making this
determination, the level of control the employer has over the worker’s
activities will always be a factor. However, other factors to consider include
whether the worker provides his or her own equipment, whether the worker hires
his or her own helpers, the degree of financial risk taken by the worker, the
degree of responsibility for investment and management held by the worker, and
the worker’s opportunity for profit in the performance of his or her tasks.
[48] It bears repeating that the above
factors constitute a non-exhaustive list, and there is no set formula as to
their application. The relative weight of each will depend on the particular
facts and circumstances of the case.
[30] This issue was
subsequently considered in
2002, by the Federal Court of Appeal in Wolf. Although the Court’s
analysis was based on the articles of the Civil Code of Quebec, it
included references to past case law including Sagaz Industries.
Desjardins J.A. at paragraph 93 stated:
[93] Both Canadair’s work and the
appellant’s work were integrated in the sense that they were directed to the
same operation and pursued the same goal, namely the certification of the
aircraft. Considering, however, the fact that the integration factor is to be
considered from the perspective of the employee, it is clear that this
integration was an incomplete one. The appellant was at Canadair to provide a
temporary helping hand in a limited field of expertise, namely his own. In
answering the question “whose business is it?” from that angle, the appellant’s
business stands independently.
[31] In concurring reasons
at paragraphs 117 and 119,
Décary J.A. stated:
[117] The test, therefore, is whether, looking at
the total relationship of the parties, there is control on the one hand and
subordination on the other. I say, with great respect, that the courts, in
their propensity to create artificial legal categories, have sometimes
overlooked the very factor which is the essence of a contractual relationship,
i.e. the intention of the parties. Article 1425 of the Civil Code of
Quebec establishes the principle that "[t]he common intention of the
parties rather than the adherence to the literal meaning of the words shall be
sought in interpreting a contract". Article 1426 C.C.Q. goes on to
say that "[i]n interpreting a contract, the nature of the contract, the
circumstances in which it was formed, the interpretation which has already been
given to it by the parties or which it may have received, and usage, are all
taken into account".
…
[119] Taxpayers may arrange their affairs
in such a lawful way as they wish. No one has suggested that Mr. Wolf or
Canadair or Kirk-Mayer are not what they say they are or have arranged their
affairs in such a way as to deceive the taxing authorities or anybody
else. When a contract is genuinely entered into as a contract for services
and is performed as such, the common intention of the parties is clear and that
should be the end of the search. Should that not be enough, suffice it to
add, in the case at bar, that the circumstances in which the contract was
formed, the interpretation already given to it by the parties and usage in the
aeronautic industry all lead to the conclusion that Mr. Wolf is in no position
of subordination and that Canadair is in no position of control. The
"central question" was defined by Major J. in Sagaz as being
"whether the person who has been engaged to perform the services is
performing them as a person in business on his own account". Clearly,
in my view, Mr. Wolf is performing his professional services as a person in
business on his own account.
[32] Also concurring, Noël J.A. stated the following at paragraph 122:
[122] I too would allow the appeal. In
my view, this is a case where the characterization which the parties have
placed on their relationship ought to be given great weight. I acknowledge that
the manner in which parties choose to describe their relationship is not
usually determinative particularly where the applicable legal tests point in
the other direction. But in a close case such as the present one, where the
relevant factors point in both directions with equal force, the parties’
contractual intent, and in particular their mutual understanding of the
relationship cannot be disregarded.
[33] I think what can be distilled from these
statements is that, in every case, one must return to the basic principles laid
down by the Supreme Court in Sagaz Industries. More specifically,
statements of intent in an agreement are not determinative unless they reflect
the parties’ actual legal relationship. Therefore, courts must evaluate all of
the relevant facts and circumstances to determine if these reflect the
intention that the parties originally stated. There may be many cases where the
intent is found to be exactly as the parties say it is, but there may equally
be those cases where an investigation of the underlying character of the
relationship does not reflect what either one or both claim it to be. Simply
because I refer to my dog as a purebred pedigree does not make that so, unless
certain characteristics are determined to exist.
[34] Sharlow J.A. in The Royal Winnipeg Ballet stated at paragraphs 60 and 61:
[60] Décary J.A. was not saying that
the legal nature of a particular relationship is always what the parties say it
is. He was referring particularly to Articles 1425 and 1426 of the Civil Code
of Quebec, which state principles of the law of contract that are also present
in the common law. One principle is that in interpreting a contract, what is
sought is the common intention of the parties rather than the adherence to
the literal meaning of the words. Another principle is that in interpreting
a contract, the circumstances in which it was formed, the interpretation which
has already been given to it by the parties or which it may have received, and
usage, are all taken into account. The inescapable conclusion is that the
evidence of the parties’ understanding of their contract must always be
examined and given appropriate weight.
[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)
[35] Sharlow J.A. then went on at paragraph 64
to state:
[64] In these circumstances, it seems
to me wrong in principle to set aside, as worthy of no weight, the
uncontradicted evidence of the parties as to their common understanding of
their legal relationship, even if that evidence cannot be conclusive. The 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. Failing to take that approach led the judge to
an incorrect conclusion.
[36] In concurring reasons, Desjardins J.A.
stated at paragraphs 71 and 72:
[71] The determination of whether or
not the parties have entered into a contract of employment for the purpose of
the EI or the CPP has proven over the years to be a difficult and somewhat
perilous exercise as the jurisprudence of our Court demonstrates. I would not
deprive the common law judge of the possibility of being made apprised of the
intention of the parties so as to test such intention against objective factors
and the surrounding circumstances of the case when he makes the final
determination.
[72] As demonstrated by Sharlow J.A.,
if the intention of the parties is uncontested, save by third parties, as in
the case at bar, the common law judge has nevertheless the responsibility to
“look to see” if the terms used and the surrounding circumstances are
compatible with what the parties say their contract is. The common law judge
must make sure that what the parties say they have agreed upon is in fact what
is contained in the contract they have signed.
[37] Again the above passages of both Sharlow
J.A. and Desjardins J.A. make it clear that when the nature of a legal
relationship is questioned, a court must “look and see” if the circumstances at
the very heart of the relationship reflect the parties’ stated intentions. It
is only through a consideration of the particular facts and circumstances (which
may vary from case to case) that one can actually determine whether the
parties’ stated intentions are consistent with the reality of their
relationship. If they accomplished that in light of objective evidence, then
their intention should prevail, as it represents their free will to contract in
the market place.
[38] In the most recent decision of the Federal
Court of Appeal, Combined Insurance Company of America v. M.N.R. and Mélanie
Drapeau, citation number 2007 F.C.A. 60, unreported, Nadon J.A., after
reviewing recent case law, stated at paragraph 35:
[35] In my view, the following
principles emerge from these decisions:
1. The relevant facts, including
the parties’ intent regarding the nature of their contractual relationship,
must be looked at in the light of the factors in Wiebe Door, supra,
and in the light of any factor which may prove to be relevant in the particular
circumstances of the case;
2. There is no predetermined way of
applying the relevant factors and their importance will depend on the
circumstances and the particular facts of the case.
Although as a general rule the control test
is of special importance, the tests developed in Wiebe Door and Sagaz,
supra, will nevertheless be useful in determining the real nature of the
contract.
[39] For these reasons, I must reject the
Appellant’s characterization of the “intent” argument and its application.
Although counsel is correct that there has been a shift in focus, it is not, as
she suggests, a simple matter of ascertaining intent without objectively
weighing the factors and circumstances of the parties’ legal relationship.
Rather, the Court must look at all relevant facts, including the Wiebe Door
factors and any others that may be pertinent, against the backdrop of the
parties’ stated intentions. The importance and relevance of these factors will
vary from case to case, although the control factor will often play the more
dominant role. In the end, each analysis is truly an individual endeavour which
must be played out in the particular arena of that case.
[40] Being mindful that
the Worker and the Appellant have conflicting opinions of the nature of their
relationship, I will examine the evidence in relation to the following factors:
Control
[41] In considering all
of the evidence before me, I conclude that the degree of control in the Worker
and the Appellant’s relationship tends more to an employee status, although
there are some elements which point in the opposite direction and some elements
which I consider neutral.
[42] First of all, the
Appellant argued that the facts in these appeals can be distinguished from
others because training philosophies and directives were determined by ski
organizations, rather than by the Appellant. The evidence supports that the
Appellant adopted its training requirements and duties from Alpine Canada and
its code of ethics from CSCF. However, many organizations adopt training
guidelines and requirements from other organizations. In fact, in the present
case, this compliance was particularly important since the athletes were
obliged to acquire competitive skills within certain timetables in order to
participate in provincial competitions. I also believe the evidence suggested
that following these requirements enabled the Appellant to qualify for funding.
The Worker did have some latitude to work with the athletes within these
adopted training requirements and schedules. However, it was the Appellant that
adopted those policies as its own, provided them to the Worker when he started
as Juvenile Head Coach and expected him to work within those guidelines so that
Juvenile Team members could be groomed to graduate to the FIS Team. In my view,
the requirement to follow consistent philosophies is much more reflective of
the type of control one would see in an employment relationship.
[43] Looking next at the
Worker’s role as Juvenile Head Coach, he was offered a salary and the evidence
did not suggest that this was in any way negotiable. He reported to the FIS
Head Coach, who provided him with the training schedules that had been used in
prior years. The Appellant provided him with an Assistant Coach, but the
evidence does not suggest that he had any input into the hiring of this individual,
even though they would be working closely together. He attended monthly
Committee meetings to report on the progress of the Juvenile Team. He was
provided a template for expense reporting, advised of the budget, and required
to obtain approval for additional or unexpected expenses. He travelled with his
team to other regions in search of snow but those destinations and the
timelines were not his choices. He had no specified work hours and conducted
some administrative duties, such as travel arrangements, from his home, but the
majority of his work took place on the ski hills. While these last factors may
be indicative of an independent contractor, they are overshadowed by the many
more points that suggest an employment relationship.
[44] Considerable evidence
was adduced concerning the so-called “substitute”, who accompanied one or two
members of the Juvenile Team to Ontario to compete, while the Worker took the rest of his team to Quebec. First of all, I do not
consider this individual to be a substitute for the Worker in the true
meaning of the word. Rather, he was hired in addition to the Worker when
that need arose. The Worker said that he obtained the parents’ approval and the
evidence of Lisa Bailey was that he probably discussed this with the parents
but not the Committee. Her evidence contradicted the Payor’s Questionnaire
(Exhibit R-2) which indicated that the Worker required not only the approval of
the parents in hiring substitutes but also the FIS Head Coach and the
Committee. This “substitute”, who provided additional help with the Juvenile Team,
was paid by the Appellant when an expense claim was submitted to Lisa Bailey.
This clearly points to an employment relationship.
[45] I turn now to his
role as Assistant to the FIS Head Coach. When asked about his duties, the
Worker listed a number of activities that the FIS Head Coach delegated to him,
but in the end, he summed up by saying that “I know there was more, but I was
just doing what he needed”. I conclude from the evidence that the Appellant’s
degree of control and direction over the Worker in this position increased
substantially. He was simply being delegated tasks by the FIS Head Coach,
which, in my view, clearly suggests an employment relationship.
[46] It is also
interesting to note that the Agreement contained a clause in which the
Appellant was permitted to terminate the Worker for various reasons, one of
which was “insubordination”. This is reflective of the Appellant’s position of
authority in the work relationship and its attempt to control the Worker in the
performance of his work.
[47] Although a few of
the elements that must be considered under the control factor do lend some
support to the Appellant’s argument, on the whole, the majority of the evidence
supports the Respondent’s position that there was considerable control placed
on the Worker’s activities, and therefore the Worker is an employee.
Ownership of Tools
[48] Similarly, when
considering this factor, there is some evidence to support either argument.
However in viewing the totality of the evidence, it is clear that the major
items of equipment, essential for performance of the coaching job, were
provided by the Appellant. The Worker was required to wear a team uniform
provided by the Appellant, so that the team would be identified. The vans and
trailers used for travel, the gates, drills, flags and so forth were supplied
to assist the coaches in training the racers on the various ski hills. While
the Worker did use some personal items such as a computer, his own ski
equipment and his cell phone, the Appellant reimbursed him for any long
distance work‑related charges incurred on his cell phone. I am satisfied
that the factor of equipment is primarily reflective of an employee situation.
Chance of Profit/Risk of Loss
[49] The evidence related
to this factor clearly supports that the Worker is an employee. He was paid a
set salary no matter how many skiers he was coaching, and he was reimbursed for
all expenses and budget over-runs. He had absolutely no opportunity to profit
and had zero monetary risk exposure.
Integration
[50] The Worker’s
activities were fully integrated with those of the Appellant, which suggests an
employment relationship. When he left his position in December 2005 there was
no question that the athletes were staying with the Appellant organization and
awaiting a new Assistant to the FIS Head Coach. The Worker had no opportunity
to develop his own clientele, as he was simply paid to coach the Appellant’s
clientele. Furthermore, the evidence I had before me concerning some other
coaches who had outside jobs was not persuasive. Some of this work is seasonal
and I had no evidence of timeframes when these coaches could be working
elsewhere, or whether it may have simply been an individual juggling two jobs.
Conclusion
[51] Although the parties
signed an agreement which designated the Worker as an independent contractor,
the actual reality of their legal relationship does not reflect this
characterization. I believe the case law is clear that simple statements of
intent, whether written or oral, will not necessarily transform a relationship
into something which the circumstances and facts of the case do not support.
After a careful review of all the evidence of the witnesses in light of their
stated intentions and the circumstances of their relationship, including the Wiebe
Door factors, I must conclude that the Worker’s relationship was one of
subordination to the Appellant. Although the facts and evidence in another
relationship involving coaches for racing skiers may point to the coaches being
independent contractors, that is not the case here.
[52] I believe at the end
of the day it is still important to ask myself the central question, as the
Supreme Court directed in Sagaz, “Whose business is it?”. When I
consider the totality of all of the evidence before me, there is only one
conclusion: it was the Appellant’s business and the Worker was hired as an
employee of that business.
[53] For these reasons, I
am dismissing both of the appeals.
Signed at Ottawa,
Canada, this 19th day of March 2007.
Campbell J.
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