Citation: 2007TCC299
Date: 20070604
Dockets: 2006-1711(EI)
2006-1712(CPP)
BETWEEN:
SANDRA JENNIFER VIEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CORINNE FRANCIS,
Intervenor.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] The appellant appealed from two decisions
issued by the Minister of National Revenue (the "Minister") - on April 12, 2006
- pursuant to the Employment Insurance Act (the "Act")
and the Canada Pension Plan (the "Plan"),
wherein the Minister decided her employment with Corinne Francis from
September 3, 2002 to July 6, 2005, was neither insurable
nor pensionable because she was not engaged under a contract of service.
[2] Counsel for the respondent, counsel for the
intervenor and the appellant agreed both appeals could be heard together.
[3] Sandra Jennifer Viel (Viel) testified she
lives in Nanaimo, British Columbia and is a Home Support Worker. In the early part of 2002, she started
working for Barb’s Home Care and Support Services, an agency that provided
in-home care to clients in the Nanaimo area. Viel was paid every two weeks – by
cheque – based on an hourly rate and the usual source deductions were made.
During the last two weeks of August 2002, the appellant was assigned – by
Barb Boekings (Barb) - the agency owner - to provide services to Corrine
Francis (Francis), her husband – Dr. Francis - and their two children at their
home in Nanoose Bay, located about 20 kilometres north of Nanaimo. The
appellant stated Barb had requested that she work as many shifts as possible
because Francis was not content with the existing arrangement whereby different
workers were dispatched to her home. Viel stated Barb informed her that Francis
wanted Viel to provide her services 5 days per week on an exclusive basis, an
arrangement that Barb declined. Viel stated she understood that Dr. Francis was
a physician practising in the area by undertaking locums to relieve other
practitioners. She met with Francis and they discussed the nature of the work
to be performed. Viel agreed to work for Francis at an hourly rate of $15 and
to perform duties ranging from child care to cleaning the house and running
family errands. Viel stated that within a few weeks, the nature of her duties
changed and she was assigned additional tasks by Francis although the rate of
pay remained the same. Typically, Viel worked from 9:00 a.m. to 3:00 p.m., 5 days
per week, Monday to Friday, until the end of 2002. While performing errands
such as shopping, Viel drove one of two vehicles owned by Francis and her
husband. She used the van to transport the Francis children to activities and
for other purposes during the day. The appellant was paid – by cheque – every
two weeks and Francis recorded Viel’s hours of work on a calendar kept in the
kitchen. Viel did not maintain her own record but recalled that during the
first few months working for Francis, she averaged about 30 hours per week.
Viel stated that in January, 2003, more duties were added and her hours of work
were extended to 4:00 p.m. throughout the week and she worked on a weekend, if
required. In April, 2004, Francis increased her hourly pay to $17. Viel stated
Francis decided when, where and how she was to perform her duties which she was
required to carry out personally. She did not incur any work-related expenses
nor provide any tools or equipment and did not charge any amount for Goods and
Services Tax (GST) to Francis in respect of her services. Viel stated that
after she had received two or – possibly – four pay cheques, she brought up the
subject of deductions which Francis had not calculated. Viel stated Francis was
upset and informed her that “we do not do it that way, there is too much
paperwork” and that “we had done that in the past but not now.” The appellant
stated she was confused by that response. An issue arose concerning the use of
the Francis family van by the appellant because Viel became concerned that the
insurance coverage might be deficient because Francis was named on the policy
as the primary driver and the appellant considered that was not correct since
she used the van during the week more than Francis. Following this difference of
opinion, Viel began using her own vehicle to perform her duties throughout the
day. From the outset, Francis paid the appellant $25 every month as a fuel
allowance as compensation for using her own vehicle to run errands either
before or after work. The appellant did not bother calculating whether that
amount was sufficient to cover her cost. The appellant lived in the central
part of Nanaimo where most businesses were located and she
was able to make purchases for Francis on her way home from work. Francis’ 4‑year
old daughter was in daycare until 12:30 p.m. and the appellant picked her up
and at 2:45 p.m. retrieved the eldest daughter from school and cared for the
children until the end of the work day. Viel stated she received written
instructions in the form of a list each day from Francis and they met each
morning to discuss the tasks, some of which were marked with an asterisk (*) to
denote priority. The appellant stated she mentioned the lack of deductions from
her cheque in the spring of 2003 but Francis refused to discuss the matter. In
the summer of 2003, the appellant’s daughter – born in August 1997 - rode to
work with her and attended the same school as Francis’ eldest daughter. In
April 2004, Francis announced that Viel’s pay would increase to $17 per hour
and that she would be working an average of 40 hours per week. The appellant
disagreed with the assumption of the Minister at subparagraph 6 l) of the Reply
to the Notice of Appeal (Reply) that she could “work for others but Francis had
priority over her time.” Viel stated she had been informed by Francis – in
December 2002 - that she should not work on a weekend at her part-time job as a
sales representative for a greeting card company because the Francis family
might require her services and wanted her to be available. Viel stated Francis
informed her she would have to make a choice as to which job was more
important. The working relationship between Viel and Francis was terminated on
July 6, 2005. Viel stated she had discovered – by chance – that she was being
replaced and received a cheque on termination that included about 7 days
extra pay which she presumed to be in lieu of notice. The final cheque did not
include any holiday pay which Viel had received when she worked for Barb’s
agency. The appellant applied for Unemployment Insurance (UI) benefits and a
ruling was issued that she had been engaged in both insurable and pensionable
employment with Francis and she received benefits on that basis. However, the
benefits were discontinued in January, 2006 because the ruling was appealed and
later reversed by the decision of the Minister issued on April 12, 2006. The
appellant is currently employed by a home care agency and stated that during
the relevant period she did not have a business bank account nor licence and
did not have any business cards nor any other trappings of a commercial
enterprise. She acknowledged that she was paid by Francis only for the hours
actually worked.
[4] The appellant was cross-examined by Ms. Devinder
Sidhu, counsel for the intervener, Francis. Concerning her status when
providing services to Francis, the appellant stated she had discussed that
issue with her accountant in 2003 prior to filing her income tax return for the
2002 taxation year but did not follow up on his advice to seek a ruling from
Canada Revenue Agency (CRA). As a result, she filed her return and reported
earnings as business income. Viel stated it was a “hard choice to make” but she
did not have a T4 slip from Francis. She identified her income tax returns for
the taxation years 2002 to 2005, inclusive that were entered as the following
exhibits: Exhibit I-1 – 2002 return; Exhibit I-2 – 2003 return; Exhibit I-3 –
2004 return; Exhibit I-4 – 2005 return. In the return for the 2002 taxation
year, Viel reported employment income and also business income – earned from
providing services to Francis - in the sum of $7,429 and claimed the amount of
$100, attributable to motor vehicle expenses. In her 2003 taxation year return,
the appellant reported business income in the sum of $25,702.92 and claimed
total expenses in the sum of $1,523.92 as set forth in the Statement of
Business Activities (Statement) included in said return. That total included
the sum of $694.97 for motor vehicle expenses and the amount of $686.40 under
the category “Telephone and Utilities.” Viel reported that she had driven her
motor vehicle 6,250 kilometres to earn income. No employment income was
reported therein. In filing her return for the 2004 taxation year, the
appellant reported business income in the sum of $24,962.50 and pursuant to the
Statement claimed expenses of $1,737.39, including the amounts of $828.45 and
$686.40 for motor vehicle expenses and telephone and utilities, respectively.
According to the relevant sheet – Allowable Automobile Expenses – included in
the return, she – again – drove her vehicle 6,250 kilometres to earn that
business income. In her return for the 2005 taxation year, the appellant
reported business income in the sum of $18,076.50 and claimed a total of
$774.01 in expenses attributable to operating her motor vehicle ‑ $320.38
- and the sum of $288.40 for Telephone and Utilities. The reported distance
driven during that taxation year was 3,849 kilometres. In each of those four
taxation years, the appellant claimed accounting fees – less than $85 annually
- as a business expense. In the Statements included in her tax returns for the
2003, 2004 and 2005 taxation years, the appellant described her main product or
service as: Home Support and stated therein that she operated under
her own name from an address on Doctors Road, Nanaimo, B.C. which was the
appellant’s residence. Viel stated that in the fall of 2004, she began driving
her own vehicle in the course of her duties and only drove the Francis family
van if Francis and/or her children were passengers. She acknowledged that the
$25 monthly allowance for vehicle costs was included in a cheque issued by
Francis and that this sum remained constant even though the price of fuel
increased. Viel stated she “loved her job” and the increased cost of fuel was
not significant. The appellant was referred to a sheet – Exhibit I-5 – prepared
by accountants retained by Francis - that summarized all payments made by
Francis to her in each year from 2002 to 2005, inclusive. Counsel pointed out
to the appellant that Francis had paid her only $4,904.76 in 2002 but the tax
return showed business income in the sum of $7,429. Viel replied that the
additional revenue was probably attributable to her work for the greeting card
company. Counsel suggested the additional business income could be attributable
to revenue generated by the appellant when providing her home support services
to other clients. The appellant stated she had not earned other income in that
manner and when providing home care services to other individuals, had done so
as a favour for friends and did not receive any payment in return. Counsel
referred the appellant to her Notice of Appeal dated June 1, 2006. The
appellant acknowledged she had no education in the field of home care beyond
first-aid training. Barb – a friend – who operated an agency, had hired Viel as
a home support worker and that employment permitted her to gain experience.
Earlier, Viel had worked in retail, always as an employee. Viel conceded that
Francis had not regarded her as an employee when she provided home support
services to the Francis family during the relevant period. Viel stated she had
been advised by her accountant that she was probably an employee of Francis
rather than an independent contractor. She stated she made the decision to file
each tax return on the basis the amount earned from Francis was business income
because she wanted to keep the job which she enjoyed and – in 2003 - her
daughter had started attending the same school as the eldest daughter of
Francis. Viel stated she did not know how to remit income tax on a monthly or
quarterly basis and that upon signing each of the tax returns for the years
2002 to 2005, inclusive, still considered she had earned the reported income in
her capacity as an employee of Francis. The appellant agreed she preferred to
work for Francis directly rather than through Barb’s agency because she did not
want to work for various people in their homes. Viel stated sometimes Francis
became upset with her in relation to her performance in carrying out certain
tasks. The appellant stated the initial $15 per hour rate was not negotiated
but was set by Francis and she accepted it and started work on that basis. Viel
identified a Home Care Providers Questionnaire (Questionnaire) – Exhibit I-6 –
that she completed and returned to CRA. In responding to Q. 4 therein, the
appellant – on the back of the page – wrote a lengthy explanation of her duties
performed with respect to Francis and her two children, one of whom - Leah –
required special care. Francis had several severe health problems to cope with
on a daily basis. The appellant identified a bundle of invoices – Exhibit I-7 –
dated every two weeks, beginning October 5, 2002. The invoice bearing that date
included 36 hours attributable to respite for Leah, 15 hours personal care
for Francis and 1 and ½ hours for private household services for a total of
$722.50, including the sum of $25 for transportation costs. The appellant
acknowledged that many invoices indicated more hours were devoted to caring for
Leah during the relevant period but stated it had been her understanding that
Francis wanted them to be prepared in that way for the purpose of obtaining
some sort of tax benefit. Viel stated she agreed with Francis that for
invoicing purposes she would allocate 50% of her hours for care of Leah and 50%
for duties relating to the rest of the family including household tasks. The
appellant identified her handwriting on each invoice but stated the wording and
extent of detail provided therein was prepared with input from Francis. Viel
stated the allocation of hours worked was immaterial to her and agreed to the
method directed by Francis. Counsel referred the appellant to paragraph 8 of
her Notice of Appeal wherein she set out details of a daily list of tasks and
chores as an example of the kind of direction and control exercised by Francis.
Viel conceded she could not produce any actual lists prepared by Francis and
had created that detail as an example of the content of such lists. She stated
she had not helped Francis bathe but remained in the bathroom with her. In
paragraph 9 of her Notice of Appeal, the appellant alleged that when Francis
was in the hospital in Vancouver she “remained in complete control of my
job and all my duties.” Viel explained that reference by relating that Francis
had telephoned her several times during the day to give instructions with
regard to various matters concerning the care of her children and the operation
of the household.
[5] Counsel for the respondent did not
cross-examine the appellant.
[6] Corinne Francis testified she is a
homemaker residing in Nanoose
Bay, British Columbia. She
has two artificial hips and suffers from other serious medical conditions
including a chronic abdominal problem caused by Crohn’s disease that at one
point required her to take nourishment through a feeding tube. Francis stated
her daughter – Leah – was born in April 1998, and is affected by a pervasive
development disorder which is manifested by a delay in attaining speech and
language skills. Leah also suffers from a sleep disorder and other medical
conditions related to a syndrome present at birth. Francis identified a
Disability Tax Credit Certificate – Exhibit I-8 – pertaining to Leah that was
signed by Dr. Lund ‑ her physician - on October 14, 2003. A letter
from Dr. Lund – dated March 2, 2004 – sent to another physician concerning
Leah’s state of health was filed as Exhibit I-9. Francis stated that because of
health problems, Leah needed help in many aspects of her life and the appellant
provided services in that regard. Francis stated that during much of the
relevant period, she also needed help to get in and out of the bathtub and with
activities such as washing her hair and applying certain medicated creams and
lotions to alleviate symptoms related to a skin condition. The Francis family
had moved to Nanoose Bay in August 2002 and were out of contact with friends
and relatives. Initially, the appellant – and several other home support
workers – provided services through Barb’s agency to the Francis family.
Francis denied the appellant’s allegation that she had requested Barb to assign
Viel to her on an exclusive basis. Francis stated Viel suggested she could
provide ongoing home care directly to the Francis family and eliminate the need
to obtain different workers through the agency. Francis stated Viel represented
she had attended a community college and was only “a couple of courses short”
of receiving either a certificate or diploma pertaining to the occupation of
home care provider. Francis recalled that during the course of their
discussion, Viel mentioned the names of several people to whom she had provided
care and also indicated she had a young child. Francis stated that when Viel
was providing care through the auspices of Barb’s agency, she often referred to
herself as a professional home care provider and was familiar with the language
applicable to that occupation. Francis stated Viel said she was operating her
own business and wanted to retain some existing clients but offered the
assurance that in the event she could not attend personally at the Francis home
to provide the necessary care, she would find a qualified substitute who was
also in the home care business. When the discussion centred on the site of the
work, Francis stated Viel mentioned that her house was too small and – knowing
Francis was allergic - that she had cats. As a result, they agreed the care
would be provided at the Francis residence in Nanoose Bay and that Leah’s needs would have priority and the appellant would
devote any remaining time to the personal care required by Francis. Francis had
paid Barb’s agency the sum of $17 per hour for supplying a worker. Francis
stated that in the course of her discussion with the appellant, Viel offered to
work for $13 per hour – if paid in cash – or for $15 per hour if payment was
made by cheque. Another subject of discussion was the matter of notice of
termination and pay in lieu thereof and they agreed that a two-week period was
appropriate in either event. Francis recalled that during these initial
discussions, Viel had indicated she wanted to be her own boss with flexibility
in choosing time off from work even though she preferred to provide care to
only one family. Francis stated Viel also had mentioned she wanted to be able
to deduct business expenses as an independent contractor and warned Francis
that if a better work situation arose she would accept it because she was not
receiving any child support and needed to use the full extent of her monthly
gross income for living expenses rather than have deductions taken at source.
Francis stated Viel did not work some days and on occasion worked less hours
than normal because she did not have day care for her own daughter. Viel drove
Francis to medical appointments and took one of the Francis children to
gymnastics class now and then if it was convenient. Francis stated Viel offered
to work one Christmas Eve and volunteered to do shopping from a list posted on
the fridge in the Francis kitchen that also detailed other tasks that needed to
be accomplished including pet care. Francis stated Viel offered the explanation
that she did not get along with her sister and it would be better if she
reduced the amount of time spent with her own family during the holidays. Viel
was fond of the Francis family dog and bathed it regularly to eliminate dirt
and bacteria. The hours worked by Viel were recorded on a calendar and the
appellant presented an invoice to Francis every two weeks in accordance with
the request – by Francis – that Viel quantify the hours devoted to Leah’s care.
Francis stated Viel decided when to take holidays or other time off and did not
seek any prior permission. At one point, there was a discussion between them about
Francis needing additional hours of home support services each week. Francis
disagreed with the assumption of the Minister – at subparagraph 6 b) of the
Reply – that the appellant was required to perform the services personally.
Flowing from the discussion about the requirement for additional hours of care,
Viel asked for – and received – an increase in the hourly rate to $17. Francis
stated Viel prepared a personal care schedule which included tasks related to
the feeding tube that occupied several hours per day. Francis denied that it
was necessary to provide Viel with direction in this regard because she was
competent and able to perform those tasks. Francis recalled complaining to Viel
that although the dog had been bathed twice during a particular period she had
not, but did not pursue the matter because she did not consider she was
entitled to order Viel to assist her to bathe. Viel got along with the Francis
children and performed her duties well even though she had complained at one
point that a certain medication sometimes affected her ability to function.
Francis was very ill during much of the relevant period due to numerous and
severe medical conditions and stated she felt intimidated by Viel and believed
she was in no position to negotiate – with Viel - various aspects of their
working relationship. Francis was in the hospital in Vancouver in the summer of 2003 for the purpose of having a feeding tube
installed. Her admittance was planned on the basis of a two-week stay during
which she had to learn appropriate procedures relating to that device which
required visits to numerous professionals at different locations within the
hospital in accordance with a demanding daily schedule. Francis stated that
contrary to the testimony of Francis and the allegations contained in the
Notice of Appeal concerning the constant direction and control emanating from
her – via telephone – from Vancouver, that during her hospital stay she was
able to call home only three times. She did not have a telephone in her room
and had to use a pay phone down the hallway. Francis stated she wanted to get
back home as quickly as possible and devoted her time to learning the
procedures pertaining to the feeding tube so she could be discharged from
hospital at the end of the two-week period. When she telephoned home, she was
assured by Viel – and accepted - that matters were being taken care of in the
normal course so there was no need to give any directions to Viel. Francis
stated that from time to time during the relevant period, Viel – without
mentioning names – discussed situations where she had either provided her
services directly to individuals or had relieved another care worker by
assuming her duties. Francis stated that was not a matter of concern as she had
understood from the outset that Viel was in the business of providing home care
and performing related tasks to clients for which she was remunerated at a set
rate per hour for hours actually worked. Francis was unable to recall any
discussion with Viel regarding any advice Viel may have received from an
accountant to the effect that Viel should have been treated as an employee of
Francis. Francis stated any discussion concerning employment status occurred
during their initial discussions prior to Viel leaving Barb’s agency. Francis
stated she was confused by Viel’s concern about the insurance policy on the van
since it was adequate and standard in the sense it covered Francis as the
primary operator together with other household members and any mature driver
with a certain number of years driving experience. Francis currently has a home
care worker - as an employee - who began working without any prior training or
experience and requires supervision. The usual deductions and a Worker’s
Compensation Board premium are deducted from her pay cheque. In the past, the
Francis family hired a nanny - as an employee - but until recently no home care
worker ever provided services to the Francis family on any basis other than as
an independent contractor.
[7] Corinne Francis was cross-examined by
counsel for the respondent. Francis stated she welcomed any extra tasks Viel
volunteered to perform. Regarding the negotiations with Viel at the outset,
Francis regarded them as similar in nature to those that had taken place between
her and Barb prior to obtaining the services of workers from the agency.
Francis stated she had no objection to Viel providing services as an employee
but this issue had not been raised in the course of their discussions. Francis
stated she consulted her accountant regarding the number of hours Viel was
working in reference to provincial hours of work regulations and received
advice that the amount of time worked was irrelevant if Viel was providing
services as an independent contractor. In late 2002, Francis obtained a
Factsheet – Exhibit I-10 – dated July,2002 - from the Employment Standards
Branch relevant to the issue of whether a worker was an employee or an
independent contractor. Francis stated she perused the information and
concluded she did not exercise sufficient control and direction over Viel to
confer upon her the status of employee and that the other factors mentioned
therein further satisfied her that she and Viel were proceeding on the correct
basis. As an example pertaining to control and direction, Francis stated her
bath day was determined by Viel according to Viel’s schedule. Francis and her
husband went away every two or three months for a brief respite and during
their absence Viel provided care for their children and pet and managed the
household. Invoices submitted by Viel – second page of bundle in Exhibit I-7 –
in her own handwriting - contained entries for respite for the Francis children
billed at the rate of $8.33 per hour for 48 hours during the period from
October 31 to November 3, 2002 and at the rate of $15 per hour for 27 hours
of respite at some point between October 20 and November 3, 2002. Francis
stated she understood Viel’s rate for overnight respite was $144 in addition to
an hourly charge for caring for the children and a separate $30 per day fee for
looking after the dog. According to the invoice dated November 29, 2002 – 4th page
in said exhibit – Viel charged $8.33 per hour for 24 hours of respite over the
course of two nights but on the invoice dated December 28 – on the same page –
had billed Francis for 24 hours respite for Leah at the rate of $15 per hour in
addition to an entry charging 5 hours of personal care for Francis at the same
hourly rate. One invoice – dated October 5, 2002 – first page of bundle – for the
period between September 22 and October 5, 2002 - contained an entry for 1 and
½ hours for “ private household services.” Francis stated she did not question
Viel’s method of invoicing for her services according to various categories and
paid them as presented. By July 2005, Francis decided to attempt caring for her
family on her own without full-time home support and terminated the
relationship with Viel according to their original agreement that a two-week
notice – or pay in lieu thereof – was appropriate. Francis stated the worker
who provided care after Viel ‑ from September to December, 2005 -
did not have to assist with as many medical matters particularly since the
feeding tube had been removed. The new worker was an independent contractor and
for a short period thereafter Francis also retained an agency that provided a
wide variety of services including those delivered by a nurse aide, together
with financial planning and related matters. After 3 months, Francis terminated
that service as it was expensive and required her to attend several meetings
with agency administrators. Afterwards, Francis stated she felt her health had
improved to the point where she believed she was capable of caring for her
family on her own provided she could hire a babysitter from time to time.
Later, Francis hired the worker who is currently providing home care services
as an employee.
[8] Corinne Francis was cross-examined by the
appellant, Viel. Francis confirmed that because of an allergy to cats no
personal care had been performed in Viel’s residence. Regarding the increase in
Viel’s hourly rate from $15 to $17, Francis stated she accepted to pay that
additional amount which she considered reasonable and an appropriate response
to Viel’s comment that more hours of work were required because of the
time-consuming tasks associated with the feeding tube. Francis reiterated she
had not written any lists as alleged by Viel – in testimony and in the Notice
of Appeal – but acknowledged she had written some instructions for Viel to
follow at some point in 2005 near the end of the working relationship. As for
placing an asterisk (*) beside some items on said list, Francis stated that was
done in response to Viel’s complaint about blurred vision and her request that
a “star” be placed beside tasks of greater importance. Concerning the need to
quantify the hours of care devoted to Leah, Francis explained there was a trust
fund established for Leah’s care but an accurate record was required because
there was a limit on the amount available for that purpose. Regarding Viel’s
offer to work on Christmas Eve in preparation for the holiday on the 25th,
Francis stated that did not make sense to her since her family follows the
European tradition of celebrating Christmas on the Eve rather than on Christmas
day in accordance with North American tradition. Francis agreed that another
worker – Amanda – was hired on August 4, 2005 but on the basis she was an
independent contractor.
[9] The appellant did not adduce any rebuttal
evidence.
[10] The appellant concurred with my suggestion
that I hear submissions first from counsel for the intervenor and then from
counsel for the respondent on the basis this method would better enable her to
focus her own arguments with respect to the facts of the within appeals and the
relevant jurisprudence applicable thereto, in support of her plea that both
appeals be allowed.
[11] Counsel for the intervener submitted the
evidence did not justify certain assumptions by the Minister as set forth in
subparagraphs 6 b) to f), inclusive and 6 l), as follows:
b) the Appellant was required to perform the duties personally;
c) the Appellant could not hire an assistant or a
replacement had she been unable to perform the Duties;
d) Francis decided where, when and how the Appellant
was to perform the Duties;
e) Francis had the final say in the Appellant’s
performance of the Duties and could require the Appellant to re-do the work;
f) Francis established the Appellant’s rate of pay at
$15.00 per hour at the beginning of the Period and later raised the per hour
rate to $17.00;
l) the Appellant could work for others but Francis
had priority over the Appellant’s time;
[12] Counsel submitted Viel had undergone a “Damascus experience” on the road to the UI office and suggested
the appellant was not an unsophisticated person but someone who - with
professional accounting advice - had filed 4 consecutive income tax returns on
the basis she had earned income from a business operated on her own account.
Counsel submitted there had been a meeting of the minds between the appellant
and Francis at the commencement of the working relationship. Regarding the
matter of control, counsel pointed to various aspects of the evidence that
clearly demonstrated Viel had performed her duties in accordance with her own
schedule and that there were no specific lists of detailed instructions posted
by Francis on a regular basis as alleged by Viel. Counsel referred to evidence
pointing to the provision - by Viel – of home support and care for other
clients and submitted that earnings from this source were probably included in
the category of other business income as reported for the 2002 taxation year.
Counsel conceded the facts supported a conclusion that the only tools and
equipment required by the appellant under the circumstances were her own skills
and her own vehicle.
[13] Counsel for the respondent acknowledged
that many of the Minister’s assumptions referred to above seemed to imply the
existence of a contract of service. Counsel referred to the need to consider
all the facts, particularly the behaviour of the appellant throughout the
relevant period and suggested that Viel’s retroactive assessment of what her
status must have been at the outset is not credible. Overall, counsel submitted
the appellant had not discharged the burden of proof and – therefore - both
decisions of the Minister should be confirmed and both appeals dismissed.
[14] The appellant submitted the evidence
supported her contention that Francis had exercised a great deal of control
over the work performed and that there had been a list of specific duties
posted each day and priorities had been assigned to certain tasks. Viel agreed
she had left work early some days and billed only for hours actually worked.
However, she asserted that she provided services to Francis solely in the
context of an employee and had not been operating a home care business even
though her income tax returns had been filed on that basis for reasons
explained in the course of her testimony. The appellant submitted the decisions
of the Minister were incorrect and that both appeals should be allowed.
[15] In several recent cases including Wolf
v. Canada, 2002 DTC 6853, The Royal Winnipeg Ballet v. The Minister of National Revenue 2006 DTC 6323. (RWB), Vida
Wellness Corporation DBA Vida Wellness Spa v. The Minister of National Revenue
- M.N.R.), [2006] T.C.J. No. 570 and City Water International Inc. v. Her Majesty the Queen
[2006] F.C.J. No. 1653
there was no issue in this regard due to the clearly-expressed mutual intent of
the parties that the person providing the services would be doing so as an
independent contractor and not as an employee. That is not the case in the
within appeals and it is necessary that I examine the evidence to determine the
intent of the appellant and Francis at the commencement of the working
relationship. I will set aside that task for the moment and establish the
framework for the necessary analysis of various factors demanded by the
relevant jurisprudence.
[16] The Supreme Court of Canada in 671122 Ontario Ltd.
v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 – (Sagaz) dealt
with a case of vicarious liability and in the course of examining a variety of
relevant issues, the Court was also required to consider what constitutes an
independent contractor. The judgment of the Court was delivered by Major, J.
who reviewed the development of the jurisprudence in the context of the
significance of the difference between an employee and an independent
contractor as it affected the issue of vicarious liability. After referring to
the reasons of MacGuigan, J.A. in Wiebe Door Services Ltd. v. M.N.R.,
[1986] 2 C.T.C. 200 and the reference therein to the organization test of Lord
Denning - and to the synthesis of Cooke, J. in Market Investigations Ltd. v.
Minister of Social Security, [1968] 3 All E.R. 732 - Major, J. at
paragraphs 47 of his judgment stated:
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.
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.
[17] It is important to point out that credibility of the parties will play
a significant role in the course of establishing the facts in this proceeding
upon which a conclusion is based. With respect to some matters, the appellant
and Francis are diametrically opposed. Sometimes, there was substantial
agreement on various matters and other times there were differences in their
opinion of what had transpired which is not unexpected in view of the passage
of time and the nature of the services provided which tended to be repetitive.
[18] I will examine
the facts in the within appeals in relation to the indicia set forth in the
judgment of Major J. in Sagaz.
Level
of control:
[19] The appellant in her Notice of Appeal and as referred to during her
testimony attempted to paint a picture of near total dominance over her - by
Francis - during the course of their working relationship. Viel testified she
was under constant pressure to meet expectations and was required to conform
with a precise list of duties posted daily in the kitchen of the Francis home.
Although she did not have any actual lists to produce in evidence, Viel relied
on the example she had created for the purposes of her Notice of Appeal and
stated that was the sort of extensively‑detailed instruction and
direction with which she had to cope when providing services to the Francis
family. In the example of an alleged daily list, Viel included items – marked
with an * for emphasis - such as “dog puke on rug – paper towel covering, hair
wash for Mrs. Francis after 3:00 p.m.” followed by instructions for dinner
preparation that reads like a recipe from the Joy of Cooking. That
reconstructed list - offered by Viel as typical - included instructions about
cleaning the fridge and setting rodent traps in accordance with a particular
schedule based on a two or three day cycle. Those instructions seem odd if they
are - as Viel alleges – designed to govern daily activities to be discussed
each morning in the kitchen. As an extreme example of the sort of control
alleged to have been exercised by Francis, Viel described the intensive contact
between Francis and her when Francis was in hospital in Vancouver.
According to Viel, Francis continued to dominate the daily activities of the
household by telephoning home several times each day for the purpose of
communicating detailed instructions concerning the household, her children and
the sartorial maintenance of Dr. Francis. However, in paragraph 9 of the Notice
of Appeal, the appellant alleged that pursuant to the direction of Francis, she
had initiated the telephone calls to Francis at the hospital each morning, noon
and prior to leaving work in the evening. Viel testified she felt intimidated
by Francis and readily complied with her instructions throughout the relevant
period.
[20] At this point, it is time for a reality check. Dealing first with the
matter of alleged intimidation, that is difficult to accept. The evidence
supports the view that Viel was an imposing figure, strong-willed and forceful
in her methods to take care of Francis and her family. Viel was knowledgeable,
capable and carried out her duties in accordance with her own schedule. Francis
was very ill for much of the time and was dependent on Viel not only for
personal care but to look after the children, the dog and to run the household.
Francis was in a precarious and fragile state similar to that of the poor chap
lying in a hospital bed with casts on limbs and tubes sticking out from various
parts of his body whose visiting Pastor demanded to know if he was prepared
then and there to rebuke the Devil. The fellow lifted his head off the pillow
and whispered, “At this moment, I’m in no position to antagonize anybody.”
Francis related the circumstances of her stay in the hospital in Vancouver. It
is reasonable to accept her version of events during that two-week period
during which she was able to telephone home – using a pay phone down the hall -
only 3 times in order to speak to Viel who assured her all was well in the
Francis household. The purpose of the hospitalization and the extent of the
activity required to accomplish it within a short period would not permit the
sort of telephonic communication described by Viel. Francis was occupied with
her own health problems and consulted - almost continuously during each day -
an array of medical professionals. There is the matter of the dispute over the
van insurance which Viel took upon herself to declare as inadequate sometime
after the fall of 2004 and refused thereafter to drive that vehicle unless
Francis was a passenger. Instead, Viel began using her own car during the day
in the course of providing services to Francis. Francis’ version of this event
is that there was nothing amiss concerning the insurance coverage and she did
not understand Viel’s concern but accepted that Viel would no longer use the family
van as she had done since starting work on September 3, 2002. It seems odd that
an employee would take this position with a boss over a matter as significant
as the adequacy of insurance coverage and to insist that his or her
interpretation of the conditions of the policy was correct. In terms of
determining the sequence of work to be done, I accept the version of events
related by Francis. Viel understood her responsibilities and was capable of
discharging them satisfactorily on a daily basis and could adapt her schedule
as required. She undertook errands for Francis both before, during and after
working hours in accordance with her own sense of convenience. Viel took days
off when she chose and cut her days short if she needed to pick up her own daughter
or for some other reason. She did not adhere to any particular routine within
the course of a working week except to fulfill her mandate to take care – first
- of the needs of Leah and then those of Francis and other family members.
Where there is a conflict in the evidence created by differences arising from
the testimony of Viel and Francis concerning events relating to the issue of
control and direction, I prefer the version proffered by Francis because it is
more reasonable and in tune with the circumstances and therefore probably
occurred in the manner described. Francis testified at some length concerning
the matter of the detailed lists – replete with asterisks – as alleged by Viel
and explained that at one point near the end of the relevant period such a list
had been prepared in detail - with *s to denote priority - in response to
Viel’s request because her vision was blurred from taking medication. Viel did
not cross-examine Francis on that point nor did she offer any evidence by way
of rebuttal. It seems to me this is an important matter when dealing with the
factor of control. Viel’s assertions concerning the extent of direction and
control regularly exercised by Francis relied on the effect to be created by
the reconstructed list of duties that was submitted as an example of the
nature and extent of the strict commands emanating daily from Francis. It
purported to paint Francis as a dominant, intimidating employer with a penchant
for micro-management.
[21] The evidence does not support the conclusion that Viel required much
direction or control while performing her duties. She had begun supplying her
services while an employee of Barb’s agency and attended at the Francis home on
a rotational basis with other home care workers dispatched by Barb pursuant to
her contractual arrangement with Francis. For the most part, Viel determined
the order of the duties to be performed and decided whether a certain task
would be performed on a particular day or postponed. When performing errands or
driving children to and from school or other activities or when working in the
house, Viel was not supervised. She carried out her duties in a manner
consistent with her calling as a professional home care support provider who
knew what was required at any given point within a work week and then performed
those tasks according to the time available.
Provision
of equipment and/or helpers
[22] The majority of the work was carried out in the Francis family home. As
a consequence, the tools and equipment necessary to provide the services were
supplied by Francis. The exception is the vehicle that was used – initially –
by Viel to perform errands for Francis in return for a monthly compensation of
$25 intended to cover the cost of fuel. Later, the appellant used her vehicle
almost exclusively for reasons I will deal with later.
Degree
of financial risk and responsibility for investment and management
[23] The only financial risk that may have
arisen is if Viel had been in an accident with her motor vehicle while performing
her duties while driving Francis or her children or when running errands.
Otherwise, there was no risk in carrying out her duties in accordance with
certain specified rates.
Opportunity
for profit in the performance of tasks
[24] After the fall of 2004, Viel opted to use her own
vehicle to carry out her duties during the day. There was no increase in the
$25 monthly fuel allowance and any additional expense caused by the
ever-increasing cost of gasoline together with other ordinary vehicle operating
expenses was borne by Viel. With respect to the remuneration paid to Viel, I
accept the version of events as described by Francis concerning the negotiation
during which the hourly rate was established. Francis testified the process was
similar to the one that had taken place between her and Barb before the agency
was retained to send home care workers to help Francis. When Viel’s duties in
respect of Francis’ personal care increased to meet demands created by a
particularly aggravating health problem, she asked for more money and Francis
consented to an increase of $2 per hour. A review of the invoices – Exhibit I-7
– discloses that Viel billed Francis according to her own rates whether for
respite, care of Leah or household tasks together with the monthly charge for
transportation costs. The appellant calculated the hourly rates for her
services in different ways depending on the circumstances. I do not accept
Viel’s evidence that the wording of those invoices was dictated and controlled
by Francis. Each invoice is in Viel’s handwriting and the content of the
billing, the language used therein, the detailed description of the services
provided and the identity of the recipient thereof is consistent with the
business practice likely to be utilized by a home care agency or service
providers operating on their own account. Francis stated she paid the invoices
as presented and accepted the rates for respite set by Viel and did not
question the allocation of hours to certain tasks except that it was necessary
for the purposes of complying with terms of a family trust to quantify the
hours of care devoted to Leah in the invoices. The appellant did not charge GST
in relation to her services. Although it may have been to her advantage to
register for GST purposes, there was no legal obligation for her to do so
because her gross business income did not exceed the sum of $30,000 per year.
[25] In Royal
Winnipeg Ballet, supra, the
issue was whether the dancers were employees or independent contractors. The
Ballet Company was supported in its position by Canadian Actors’ Equity
Association (CAEA) as the bargaining agent for the dancers. In the course of
deciding the dancers were not employees of the Ballet Company, at paragraphs
60-64, inclusive of her reasons Sharlow, J.A. – referring to the decision in Wolf,
supra, stated:
[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.
[62] It is
common for a dispute to arise as to whether the contractual intention professed
by one party is shared by the other. Particularly in appeals under the Canada
Pension Plan and the Employment Insurance Act, the parties may
present conflicting evidence as to what they intended their legal relationship
to be. Such a dispute typically arises when an individual is engaged to provide
services and signs a form of agreement presented by an employer, in which she
is stated to be an independent contractor. The employer may have included that
clause in the agreement in order to avoid creating an employment relationship.
The individual may later assert that she was an employee. She may testify that
she felt coerced into signifying her consent to the written form of the
contract because of financial need or other circumstances. Or, she may testify
that she believed, despite signing a contract containing such language, that
she would be treated like others who were clearly employees. Although the court
in such a case may conclude, based on the Wiebe Door factors, that the
individual is an employee, that does not mean that the intention of the parties
is irrelevant. Indeed, their common intention as to most of the terms of their
contract is probably not in dispute. It means only that a stipulation in a
contract as to the legal nature of the relationship created by the contract
cannot be determinative.
[63] What is
unusual in this case is that there is no written agreement that purports to
characterize the legal relationship between the dancers and the RWB, but at the
same time there is no dispute between the parties as to what they believe that
relationship to be. The evidence is that the RWB, the CAEA and the dancers all
believed that the dancers were self-employed, and that they acted accordingly.
The dispute as to the legal relationship between the dancers and the RWB arises
because a third party (the Minister), who has a legitimate interest in a
correct determination of that legal relationship, whishes to assert that the
evidence of the parties as to their common understanding should be disregarded
because it is not consistent with the objective facts.
[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.
[26] In the within
appeals, I do not have the comfort of dealing with a situation where there is
uncontradicted evidence with respect to the mutual intention of the parties.
Instead, I must make a finding in that regard. It must be kept in mind that
Viel and Francis became acquainted during the course of several weeks when Viel
was working for Barb’s agency and was in the Francis home to provide services
as a home support care worker. The appellant’s position was that Francis wanted
Barb to assign her exclusively for Francis and that Barb had refused that
request. Francis denied that she had made such demand and stated she had not
discussed that subject with Barb. Francis testified that Viel approached her
and offered to work directly for her – on a steady basis - at the hourly rate
of $15. I prefer the Francis version of the circumstances pertinent to those
initial discussions prior to Viel leaving her employment with Barb. I accept
that Viel represented that she was operating a home care business on her own
account and was capable of providing the services required not only because she
was qualified through work experience with the agency but also because she was
close to receiving academic recognition - in the home care field - from a
community college. I find it reasonable that Viel discussed her desire to
retain other clients and that she assured Francis that if a substitute worker
was needed at some point, Viel would find a suitable replacement on a temporary
basis. I am satisfied Viel wanted to be paid the gross amount of her earnings
in accordance with the invoices that she prepared according to her own method.
I do not accept the evidence of the appellant that there was a subsequent
discussion with Francis regarding the lack of deductions from her cheque and
the alleged response by Francis that it was too cumbersome to undertake the
necessary paperwork to accomplish that purpose. I accept the version as related
by Francis that the subject of employment status never arose except in the
context of the initial discussions when Viel made it clear that her situation
required that she take home the total amount billed on her invoices because she
was not receiving child support and needed the money. By entering into the
arrangement with Francis and eliminating Barb as an intermediary, the appellant
was able to obtain steady work at an increased hourly rate. In order to achieve
that result, she held herself out to Francis as someone who provided home care
services as an independent contractor. One method by which original intent can
be ascertained is to examine the subsequent conduct of the parties. Another is
to identify any reasons one or other party may have to pursue a policy of
revisionism in order to suit a current purpose. Apart from the methods by which
the appellant provided her services for Francis - as noted earlier - she
represented to the Minister - in filing 4 returns for the taxation years 2002
to 2005, inclusive - that she earned business income by operating a home
support business. She claimed certain business expenses each year and –
apparently - ignored the advice of her accountant to seek a ruling from CRA on
her status with regard to the services she was providing to Francis. Viel
stated the additional business income in 2002 was attributable – probably - to
her work for the greeting card company and that although she had provided
certain home care services to others, had done so merely as a favor and not for
pay. In other cases where a worker or payor has resiled from a previous position,
I have referred to the powerful compulsion that propels a person to adapt past
events to fit current needs. Viel understands clearly that the matter of
intention of the parties is important in these cases and purported to portray
events that would cast her in the role of an unfortunate subordinate who
accepted whatever largesse was distributed by Francis, her demanding and
over-controlling employer. A review of the evidence pertaining to the issue of
intention leads me to conclude that both parties intended that Viel would
provide her services on the basis she was an independent contractor. As
mentioned earlier, the subsequent conduct by both parties - until well after
termination of that relationship - was consistent with that intent. The
appellant truly did have a revelation - as a result of applying for UI benefits
- that was bolstered by a subsequent stream of vivid - yet subtly-nuanced
visions - of a recent past chock full of significant events that she fervently
wished had actually occurred.
[27] In the
case of Direct Care In-Home Health Services Inc. v. Canada (Minister of
National Revenue – M.N.R.), [2005] T.C.J. No. 164, Hershfield, J. had to
determine the status of a care worker who was part of a pool of nurses upon
which the payor drew in order to fulfil its contract with various agencies to
provide care for certain people. With respect to the important indicia of
control, at paragraphs 11 and 12 of his judgment, Hershfield, J. stated:
[11] Analysis
of this factor involves a determination of who controls the work and how, when
and where it is to be performed. If control over work once assigned is found to
reside with the worker, then this factor points in the direction of a finding
of independent contractor; if control over performance of the worker is found
to reside with the employer, then it points towards a finding of an
employer-employee relationship. [See Note 3 below] However, in times of
increased specialization this test may be seen as less reliable, so more
emphasis seems to be placed on whether the service engaged is simply
"results" oriented; i.e. "here is a specific task -- you are
engaged to do it". In such case there is no relationship of subordination
which is a fundamental requirement of an employee-employer relationship. [See
Note 4 below] Further, monitoring the results, which every engagement of
services may require, should not be confused with control or subordination of a
worker. [See Note 5 below]
Note
3: Wolf at paragraph 74.
Note
4: See, for example, D & J Driveway Inc. v. Canada (Minister of
National Revenue), [2003]
F.C.J. No. 1784 (F.C.A.) at paragraphs 9 and 13 and Wolf at paragraph 77.
Note
5: See Charbonneau v. Canada, [1996]
F.C.J. No. 1337 (F.C.A.) at paragraph 10 as cited in D & J Driveway at
paragraph 9.
[12] In the
case at bar, the Worker was free to decline an engagement for any reason, or
indeed, for no reason at all. She could leave a client and still be engaged
with another more to her liking. She was free to do other work as and when she
pleased. Moreover, although nursing care tasks were offered to her, there was
no promise of that and she was not supervised in her performance of those
tasks. Each task offered was a results oriented task from the Appellant's
perspective. The fact that the Appellant could offer such tasks from time to
time and to some extent monitor performance does not militate toward a finding
of an employee-employer relationship. As in D & J Driveway, where there was
not a sufficient relationship of subordination between the company and drivers
to warrant a conclusion that a contract of employment existed, there is not a
sufficient relationship of subordination in the case at bar to warrant a
conclusion that the relationship of the parties is that of employee-employer.
In D & J Driveway specific delivery tasks were available to drivers who
could agree or refuse to make deliveries when called upon. When drivers agreed
to make a delivery no control was exercised over the way in which they carried
out their duty. Similarly in Wolf, Justice Desjardins noted that a link of
subordination had not been created where the worker, a free-lance mechanical
engineer hired on a one-year renewable contract, was assigned tasks over which
the worker was the "master". [See Note 6 below] As in these cases, I
do not see the Worker, in the case at bar, as being in a subordinate
relationship with the Appellant as is required to find a contract of service.
That is, the control test points toward a finding of an independent contractor
relationship.
Note
6: Wolf at paragraph 77.
[28] Concerning the intention of the parties, at
paragraphs 25 and 26, Hershfield, J. commented:
[
25] Although the parties'
intentions should not be regarded as determinative, they can be helpful in a
close case. [See Note 11 below] That is, if one were to conclude on a review of
the evidence as a whole that this is a close case where the relevant factors
point in both directions with equal force and that the mutual understandings of
the parties must therefore be regarded and considered, how would this case be
resolved?
Note 11: See
excerpts from Wolf at paragraph 8 of these Reasons.
[26] I have no difficulty finding
that the Appellant intended to hire the Worker as an independent contractor.
This much is clear from the testimony of Mr. Blais and from the terms of
the Agreement. As to the intention of the Worker, I begin by noting that it is
not as easily discernible as that of the Appellant. The Worker's testimony
seemed to indicate that the matter did not concern her. She seemed indifferent
to the classification. As much as it might be said that she never really
thought of herself as an independent contractor, it cannot be overlooked that
she never took on the role performed by her thinking that she was an employee.
To the contrary, she took on the role knowingly agreeing to the relationship
intended by the Appellant. Moreover, I am compelled to find that she must have
had at least some minimal intention to operate as an independent contractor in
light of the fact that she agreed to an arrangement whereby she was not
entitled to any employee benefits whatsoever and without the apparent
protection of labour laws in terms of such benefits or job security. At the
hearing she evidenced no concern as to seeking relief from this state of
affairs knowing full well that it was, and is, the arrangement she willingly
agreed to. Her intention was and is to carry on her undertaking as required
under the Agreement.
[29] In Poulin v. Canada ( Minister of National Revenue – M.N.R.),
2003 FCA 50, the Federal Court of Appeal considered the situation
involving health care workers who provided personal care to an individual who
was rendered quadriplegic in a car accident. The judgment of the Court was
delivered by Létourneau, J.A. who stated at paragraphs 16 to 22 inclusive:
[16]
Furthermore, the notion of control is not necessarily lacking in the contract
for service. It is generally apparent, albeit to varying degrees, as it is
somewhat in the contract of employment, and sometimes to a surprising extent
without necessarily distorting its nature as a contract of enterprise. For
example, control in regard to the premises in general and the specific places
in which the work is to be performed is exercised over general contractors and
their subcontractors. The latter are also given specific instructions as to the
materials and the drawings and specifications with which they must comply.
Often the times and work schedules of some in relation to others are also
controlled and determined to ensure the effective and harmonious operation of
the construction site. The work performed by contract for services is also
subject to some performance, productivity and quality controls.
[17] In the
case at bar, Ms. Joseph provided the applicant with nursing care commensurate
with her profession and its practices, without the applicant actually having
any control in this regard. The care and drugs were prescribed by the physician
and necessitated by the applicant's medical condition. The medical services thus
rendered could have been delivered under either a contract for services or a
contract of employment without the applicant really having much input, still
less control, in either case.
[18] As to the
services supplied by the care attendants and visiting homemaker, they too may
be rendered equally under a contract for services or a contract of employment.
The very nature of these services means that the notion of control is not
decisive. For example, if the applicant describes her duties to the visiting homemaker
and indicates to her, down to the smallest detail, the household tasks she is
to perform, this does not transform a clear-cut contract of enterprise that she
holds into a contract of employment. As it happens, Ms. Paquette, the visiting
homemaker, was employed by the agency Remue-Ménage de Gatineau, which provided
this kind of services. It is true that the applicant was able to retain her
services part time (every second weekend) without going through the agency in
order to keep the cost of the services at a level corresponding to his limited
ability to pay. However, I fail to see how that alters the nature of the
relationship between the applicant and her.
[19] Finally,
the fact that the duties performed were performed according to a schedule and
with payment by the hour does not necessary lead, as the Tax Court of Canada
apparently thought, to the existence of a relationship of subordination between
the parties. It is not uncommon for contractors, for example in plumbing,
heating or electricity, to work and invoice according to established hourly
rates, and, as in the case of employees, increased rates on holidays. Likewise,
it is not uncommon for a client to determine the times at which the services
are to be provided by the contractor he has hired.
[20] The
respondent also made much of the fact that the workers had to render the
services personally. I agree with Madam Justice Desjardins that the fact that a
person cannot delegate his labour to someone does not necessarily mean that
this person is an employee: Wolf v. Her Majesty the Queen, supra, at paragraph
80. Similarly, the fact that the person providing the services holds a diploma
is not proof of employee status. It is necessary to examine the facts and the
circumstances surrounding the provision of services: each case is sui generis.
[21] It is not
hard to understand why, in this case, the applicant was insistent that the
highly intimate and personalized medical care necessitated by his state of
health be provided by the nurse with whom he had contracted and in whom he had
confidence. The same comment applies to many of the services rendered by the
care attendants and the visiting homemaker as a result of the applicant's
neurological difficulties. The record discloses that these two workers attended
to the applicant's person and his residential premises: see Applicant's Record,
transcript of testimony, pages 52 and 108-09. The difficult physical condition
in which the applicant found himself did not deprive him of his rights to human
dignity and privacy and to his expectations in that regard.
[22] In short,
I think that on the facts of this case the notions of control and relationship
of subordination are at best neutral, at worst misleading. They are not
terribly useful in determining the nature of the agreement between the parties.
(b) ownership
of the tools needed for the performance of the work
[30] In Parifsky v. Canada (Minister of National Revenue – M.N.R.)
2005 TCC 84, McArthur, J. hear the appeal of a worker – Vrdoljak – whom
the Minister had decided was an employee of the recipient – Parifsky - of her
personal care services. At paragraph 15 of his reasons, McArthur, J. stated:
[15] In this
case, Ms. Vrdoljak provided care to Mrs. Parifsky with no real control by the
Appellant in this regard. Ms. Vrdoljak's hours were established based on Mrs.
Parifsky's needs. Therefore, her work schedule could vary as a result. Ms.
Vrdoljak's services were normally required between noon and 8 p.m., that is
until the time that Mrs. Parifsky had to go to bed, for a total of
approximately 32 hours a week at $9/hour. The total hours of service could thus
vary considerably from week to week because it depended on Mrs. Parifsky's
needs.
[31] After referring to a quotation from the judgment of Létourneau, J.A. in
Poulin, supra, continued – at paragraphs 16 and 17 as follows:
[16] In
addition, Ms. Vrdoljak was enrolled in a full-time nursing program at that
time. She was therefore free to choose how she spent her time and able to plan
her own schedule based on her availability.
[17] It is
clear that Ms. Vrdoljak was able to decide what kind of care had to be given to
Mrs. Parifsky. She was in a position where she had a
significant amount of freedom over the services to be provided to Mrs. Parifsky. The Appellant, also with a precarious state of
health, was in no position to give Ms. Vrdoljak instructions on how to provide
care. The Appellant was only able to play a passive role in all of these
events, only able to ask Ms. Vrdoljak about his wife's state of health on a
daily basis.
[32] Prior to reading the reasons of Sharlow,
J.A. in Royal Winnipeg Ballet, supra, one may be forgiven for
having assumed that the superbly-disciplined, talented and athletic artists
were employees subject to a high degree of control and direction in order to
perform classical ballets for a world-renowned company. In the future, perhaps,
some dancers may be so overcome by the intoxicating spirit of entrepreneurism
that they will decline to execute a jeté grand and – instead - elect to
substitute one of the six known glissades or – even worse – to arrest an
otherwise fluid set of graceful movements with an impromptu Arabesque,
proving yet again that “the dance” can be a risky business.
[33] Compared to the rigorous demands upon the
dancers, the daily routine of the appellant in performing home care services
for Francis was much less exacting and she enjoyed a significant degree of
freedom and flexibility in the course of her work. She performed tasks as she
saw fit in accordance with her own schedule within the framework of the overall
set of services she had contracted with Francis to deliver for a specific fee.
[34] I am satisfied on an extensive analysis
of the evidence adduced in the within appeals and after considering the indicia
set forth in Sagaz, supra, and other relevant jurisprudence that the
appellant was not providing her services to Francis as an employee but was
doing so in the course of operating a home care business on her own account. I
am also satisfied that the intention of the parties at the commencement of
their working relationship was that Viel would be supplying her services as an
independent contractor. In my view, this finding when applied to the facts in
the within appeals in accordance with the majority decision in Royal Winnipeg Ballet, supra, and subsequent
decisions by the Federal Court of Appeal and other courts, supports the
conclusion that both decisions of the Minister must be confirmed.
[35] Both appeals are hereby dismissed.
Signed at Sidney, British
Columbia, this 4th day of June
2007.
"D.W. Rowe"
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