Citation: 2007TCC127
Date: 20070329
Dockets: 2006-1204(EI),
2006-1207(CPP)
BETWEEN:
RAUL S. LOPEZ,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the bench on February 1, 2007, at Ottawa, Canada.)
Margeson J.
[1] The sole question
before the Court is whether or not during the period in question, which was
January 1, 2004 to December 31, 2004, the Appellant was engaged by Algonquin College (the
"College") as an employee or if he was an independent contractor.
[2] The facts with
respect to what he did are not disputed, generally speaking.
[3] It is a given, that
during the period in question he was a part‑time instructor at the College,
giving lectures in a night course and this was in fact a credit course.
[4] The assumptions
contained in the Reply are significant and they have not been rebutted.
[5] The Appellant's
contention was that Human Resources Development Canada has made two different
decisions on the same factual basis as here. It decided that Mr. Lopez was an
independent contractor and on another occasion, he or a person in identical
circumstances was an independent contractor and also an employee. That is why
he is here.
[6] He said that he
came to the Court to have the Court decide and pronounce upon his status.
[7] Most of his
evidence given in Court today, out of his own mouth, points to a contract of
service rather than a contract for services. In other words it was an
employer/employee relationship.
[8] Again, looking at
the assumptions of fact that are contained in the Reply, none of these
presumptions have been rebutted. The only one which was questioned at all was
(m):
(m) the Payer decided if the work was
to be redone and covered the related costs;
The offensive part of that
presumption to Mr. Lopez was the words "the payer decides if the work was
to be redone".
[9] Most of the work of
Mr. Lopez was the giving of lectures and the marking of exams. The College sets
the exams in conjunction with the coordinator and professors and then the
Appellant did the marking. After the exam was marked, if a student objected to
the mark, he could question it.
[10] But overall, the
evidence disclosed that there was a great deal of input into the work itself by
the College, such as how the exam was to be composed, the marking of it and
subsequently the issue of the appeal.
[11] None of the evidence
that was given with respect to this issue (m) at the end of the date indicates
a contract for services.
[12] The other issue
taken with the Reply was the allegation that the Appellant had to provide the
services personally. However, Mr. Lopez was the lecturer, he was the person
that presented the course, and he was the person that did the marking. The
Court is satisfied that he could not provide a substitute.
[13] This was so even
though he did give some evidence that if he had lectured the maximum number of
hours, then the College could retain someone else to do a lecture. But that has
nothing to do with the work that he was retained to do. He was to give a
lecture for a certain number of hours, he was paid at a rate per hour and the
number of hours was set out in his agreement.
[14] The fact that the College
may hire somebody else to teach something else other than his course or a part
of the course which he was teaching because he had exhausted his lecturing
hours has nothing to do with him being required to provide the services
personally.
[15] The Court is more
than satisfied that the Appellant had to provide the services personally.
[16] Other significant
presumptions in the Reply that were unrebutted were:
(d) the Appellant
performed his duties at the Appellant's place of business;
Except
the marking which was done at home.
(e) the Appellant
provided his services as a part-time instructor for evening classes with a
course total of 48 classroom hours ...
The
evidence is quite clear that he was paid $50 per hour.
(g) the Appellant
was paid by means of direct deposit to his personal bank account;
(h) the Appellant
was required to complete a prescribed form for the Payer titled
"Instructor timesheet", on a weekly basis;
This shows the element of control,
supervision, guidance which is a common factor in contracts of service.
(i) the Payer paid
premiums to the WSIB;
(j) the Appellant
was supervised by the Appellant's Academic Manager in the performance of his
duties;
(k) the Payer
provided the classroom facilities, a desktop computer, projection equipment, a VCR/DVD
amplifier and a bulletin board system, at no charge to the Worker;
(l) the Appellant
provided a personal home office, a personal computer, some tools and supplies; ...
However that did not
take anything away from the fact that the bulk of the tools and equipment were
provided by Algonquin College at the offices including services for photocopying, the
computer, blackboard facilities and the lounge.
(n) the Payer covered the costs of
the liability insurance;
It was established that the
Appellant was on the payroll. He was paid as an employee.
(o) the Payer was responsible for
resolution of student complaints;
I do not think there is any doubt
about that. There was no doubt that the Appellant would have had some input
into it. He was contacted to discuss this matter after a student complained.
But at the end of the day it would be the College who would decide whether the
student received his money back and whether he was successful in challenging
his mark.
(p) the Appellant
was required to comply with Payer's established policies and procedures;...
(r) the Payer had the right to
terminate the Appellant's services.
[17] Counsel referred to a
number of cases such as Wiebe Door Services Ltd v. Canada and 67112 Ontario Ltd v. Sagaz Industries Canada Inc. in concluding that it is the total relationship
between the parties that is significant.
[18] As indicated, one factor in any one case may be more
significant than in another. Even though one factor might point heavily to an
independent contractor situation, other factors taken together may be
sufficient to outweigh that factor.
[19] In any event, in the case at bar the Court does not have
any question whatsoever about the ultimate result. This was indeed a contract
of employment situation.
[20] Looking at Wiebe Door, supra, and the four-in-one
test; control, ownership of tools, profit and loss and integration, it is
satisfied beyond any doubt that Algonquin College had sufficient supervision
and control of the Appellant to satisfy the provisions of Wiebe Door.
[21] On the question of ownership of tools, it is satisfied
that this factor points to a contract of service, rather than contract for
services. The significant tools, supplies and equipment were provided by the College
and not by the Appellant himself.
[22] The Appellant did have an office in his home, he had some
tools there and he might have done his marking at home, but those facilities
were rather insignificant compared to those facilities which had to be supplied
by Algonquin, particularly the classroom where the teaching took place.
[23] On the profit and loss issue, the Court is satisfied
beyond any doubt that the Appellant had no chance to make a profit himself
other than the money that he was paid by the hour for the number of hours that
he taught.
[24] Indeed, the evidence was quite clear that he had to submit
a time sheet to the College which was approved and initialed by somebody at the
College in the administration before he would get paid.
[25] He did not have a
chance at making more money and he would not have made less money if he taught
the hours that he agreed to teach.
[26] There was no profit
or loss in the commercial sense as referred to in the cases.
[27] On the question of
integration, the Court is satisfied beyond any doubt, looking at it from the
point of view of the worker, that all of the work of the Appellant was
integrated completely into the work of the College. That is what the College
did, they taught courses, they provided certificates to people and trained
them. The Appellant's instruction certainly was an integral part of that.
[28] There was a high
level of control indeed, as counsel for the Respondent has said in this
particular case.
[29] With respect to the
textbooks, there was some issue about the textbooks, but the Court is satisfied
that in 2004 the Appellant could have received textbooks from the College if he
wanted to even though when he started in 2001 he bought his own.
[30] Further, in 2001
when he started he may very well have been an independent contractor or may
have been considered to be an independent contractor by the College, that year
is not before the Court.
[31] Those documents
which were produced in evidence such as Exhibit A-1, are not helpful,
certainly in 2004.
[32] When the Court asks the
question, was he in business for himself, or was he acting for somebody else, it
is satisfied beyond any doubt at all that he was not in business for himself.
He was an employee of Algonquin College and Algonquin College considered him to be an employee.
[33] Taking all of the
factors into consideration, considering the evidence and what the parties said,
and having regard to the documents presented, the Court is satisfied beyond any
doubt that the Appellant was an employee during the period in question. He was
not an independent contractor.
[34] The Court will
dismiss the appeal and confirm the Minister's decision.
Signed at Vancouver, British Columbia, this 29th
day of March 2007.
T. E. Margeson
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