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Citation: 2004TCC612
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Date: 20040916
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Docket: 2003-1311(EI)
2003-1318(CPP)
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BETWEEN:
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BOARD OF EDUCATION OF RED COAT TRAIL,
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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
TAMMY BEAUBIEN,
Intervenor.
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REASONS FOR JUDGMENT
Beaubier, J.
[1] These appeals were heard together
on common evidence at Regina, Saskatchewan, on September 1, 2004.
Merle Nostbakken, M. Ed., an educational psychologist for the
Appellant and Marc Danylchuk, B.Sc., B. Ed., M. Ed., Director of
Education for the Appellant testified for the Appellant. Tammy
Beaubien, B.S.W. was subpoenaed by the Respondent and also
testified on her own behalf.
[2] Paragraphs 4 to 7 inclusive of the
Reply to the Notice of Appeal, docket number 2003-1318(CPP), set
out the particulars in dispute. They read:
4. In response
to the appeal, the Minister decided that the Worker was employed
under a contract of service with the Appellant for the period
September 20, 2001 to June 14, 2002.
5. In so
deciding, the Minister relied on the following assumptions of
fact:
(a) the Appellant is
a school board;
(b) the Appellant
hired the Worker;
(c) the Worker was
hired as a "community school-based family resource
worker" and her duties included developing action plans for
risk students and their families;
(d) the Appellant
and the Worker entered into a written contract which included the
following:
(i) the Worker
is an independent contractor,
(ii) the period of
the contract was from September 20, 2001 to September 19,
2002,
(iii) the Worker shall
provide service to the three "Shared Services Region School
Divisions" (hereinafter "the School
Divisions"),
(iv) a detailed
description of the Worker's duties,
(v) the Worker shall
provide 40 hours of service, to the Appellant, each week and
shall submit a daily timetable,
(vi) the Worker shall meet
regularly with the referral and review committee,
(vii) the administrative
coordinator shall supervise the work of the Worker,
(viii) the Appellant shall pay
the Worker $36,500 in 12 equal instalments,
(ix) the Appellant shall
reimburse the Worker for expenses incurred for travel,
(x) the Worker shall
comply with all policies of the Appellant, and
(xi) the contract is not
assignable.
(e) the Appellant
paid the Worker a set monthly wage;
(f) the
Appellant set the Worker's wage rate;
(g) the Worker was
also entitled to vacation pay;
(h) the Worker
normally worked 40 hours per week, Monday to Friday;
(i) the Worker
spent the majority of her time at school;
(j) the Worker
was required to work during the days that school was in
session;
(k) the Worker was
required to submit an attendance record which was then
verified;
(l) the
Appellant retained the right to control the Worker;
(m) the Appellant is a
member of the School Divisions along with the Borderland and
Golden Plain school divisions;
(n) the School
Divisions had a coordinator (hereinafter "the
Coordinator");
(o) the Coordinator
was a member of the "referral & review committee"
and the "family services worker steering
committee";
(p) the Coordinator
was also the director of education for the Appellant;
(q) the
"referral & review committee" (hereinafter
"the Committee") provided work to the Worker and
reviewed the Worker's work;
(r) the Worker was
directed and supervised by the Coordinator and the Committee;
(s) the Worker
received written and verbal instructions regarding referrals, and
input, from the Committee;
(t) the
Worker's priorities were determined by the Committee and the
Coordinator;
(u) the Worker
provided records and documentation of her activities, including a
"work table", to the Committee;
(v) the Worker was
required to provide verbal and written reports on client
progress, to the Committee, on a regular basis;
(w) the Worker could not
replace herself;
(x) the Worker
provided her services at school and at the student's
home;
(y) the worker
provided her own vehicle;
(z) the Appellant
provided office space, office equipment, a laptop computer,
forms, stationary, and a telephone;
(aa) the Appellant reimbursed
the Worker for her mileage, meals, conventions, conferences and
accommodations;
(bb) the Worker was required to
complete an "expense claim form" for expenses
incurred;
(cc) the Worker did not have a
chance of profit or risk of loss, and
(dd) the Worker was employed
under a contract of service with the Appellant.
B.
ISSUES TO BE DECIDED
6. The issue
to be decided is whether the Worker was employed under a contract
of service with the Appellant during the period September 20,
2001 to June 14, 2002.
C.
STATUTORY PROVISIONS RELIED ON AND RELIEF SOUGHT
7. The
Respondent relies on, among other things, paragraph 6(1)(a) and
subsection 2(1) of the Canada Pension Plan.
[3] Only assumptions 5 (g), (h), (l),
(w), (cc) and (dd) were refuted or require the following
comments:
(g) The contract did not formally
describe vacation pay. It paid $36,500 per year over 12 months
and required 48 weeks of work.
(h) Mr. Danylchuk stated that Tammy
worked more than 40 hours per week. He is believed.
(l) Is in dispute, but is
essentially correct.
(w) If Tammy could not work, a second
resource worker under contract took over her case load.
(cc) and (dd)
Are the matters in dispute.
[4] The Appellant is the agent in this
matter for a composite unincorporated public body designed to
assist school students to attend school or complete their
studies, but who have behavioural, financial or family problems
which interfere with the students. The body is titled the
"Board School-Based Family Resource" (the
"Board") in Tammy's contract (Exhibit A-4). The
Board and Tammy's work are related to out-of-school services
required for students to get them through school.
[5] Tammy's contract for the
period in question (Exhibit A-4) contains the following
paragraphs, which were adhered to by the parties:
Contract for the Provision of Community
School-Based Family Resource Worker Services
THIS AGREEMENT MADE IN DUPLICATE BETWEEN:
The Board of Education of the Red Coat Trail School
Division No. 69 of Saskatchewan
(the Board)
-and-
Tammy L. Norton, of Scout Lake, Saskatchewan
(the Contractor)
WHEREAS the Board requires the provision of services related
to the Community School-Based Family Resources;
AND WHEREAS the Tammy L. Norton is an independent contractor
who has the capability of providing those services to the
Board;
NOW THEREFORE this agreement witnesseth that the parties
hereby covenant and agree as follows:
1.
(a) For a term
commencing on September 20, 2001 to September 19, 2002 the
Contractor shall provide to the Board Community School-Based
Family Resource services to the three Shared Services Region
School Divisions, namely, Borderland, Golden Plains and Red Coat
Trail. Such services shall include:
i. using
the Wraparound Process concept to facilitate the development of
individualized, long-term support plans of formal and/or informal
services for vulnerable students and their families
ii.
developing, implementing and/or coordinating prevention and
intervention activities (e.g., anger management training,
parenting sessions) which address the needs of at risk students
and their families. These activities normally will be in
small-group settings, and will occur at times suitable for the
clients. The nature of the particular programs will evolve as the
needs of vulnerable students and their families become known
iii. forming
and maintaining linkages and collaborating with community
agencies, institutions, and individuals who are integral to the
successful deployment of integrated services for children and
families associated with the school divisions
iv. consulting
on a regular basis with those members of the Community Resource
Program Committee who have been assigned supervisory roles
v. providing
services, as much as possible, throughout the school divisions as
outlined in the Community School-Based Family Resource
Program document
vi. keeping
records and documenting activities as described in the program
document
and other related services as shall be mutually agreed upon
from time to time.
(b) These services
shall be provided at times to be mutually agreed upon by the
parties.
(c) The Contractor
shall generally provide 40 hours of service to the Board in each
week, and shall submit a daily timetable to the school secretary
to facilitate contacting the contractor during the day. The
Contractor shall work for a minimum of 48 weeks and generally be
available during those days that school is in session.
Flexibility in scheduling is to be expected.
(d) The contractor
shall provide the services hereby contracted to the professional
standard to which Family Resource providers are expected to
perform in Saskatchewan, or the standard for provision of those
services in educational institutions which the Board has
communicated to the Contractor.
2. The
Contractor shall meet regularly with the Referral and Review
Committee to discuss issues related to the program and to receive
feedback. The Administrative Coordinator of ABW Shared Services
shall supervise the work of the Contractor.
3.(a) The Board shall pay the
Contractor the total amount of $36,500 for the services provided
under this agreement payable, subject to clause 3(b), in 12 equal
instalments on the 25th day of each month from September 20, 2001
to September 19, 2002, inclusive.
(b) The parties
agree that a major portion of the services contracted for
hereunder require direct contact with pupils or engagement in
collaborative activities with students and family members &
institutions, generally during the work period. Therefore, in the
event that the Contractor is not available to provide services on
any day that school is in session and those services cannot be
provided on another day, the contract price set out above shall
be reduced by 1/240 of the total contract price for each such day
on which the Contractor does not provide services.
4. The Board
shall reimburse the Contractor for expenses incurred for travel
necessary in the provision of services at the rate and subject to
the conditions provided by the Red Coat Trail School Division
Policy GBAC in effect from time to time.
5.(a) The Contractor shall comply with
all laws that apply to the Contractor in respect of the provision
of services under this contract.
(b) The Contractor shall
comply with all policies of the Board that apply to the
Contractor in respect of the provision of services under this
contract.
6. If the
Contractor fails to make any report, return, deduction or
contribution required by the Employment Insurance Act, Canada
Pension Plan, any federal or provincial taxation statute, or any
other law to be made in respect of the Contractor and, as a
result of that failure, the Board is required to make any
expenditure in relation to that failure of the Contractor, the
amount of the expenditure made by the Board is deemed to have
been advanced to the Contractor on the price of the services
herein contracted for. If the Board is required to make such a
payment after the contract price specified in clause 3(a) has
been paid, or beyond that total contract price, that amount is a
debt due the Board from the Contractor.
7. The
Contractor shall supply, at the Board's request, all
information related to the services supplied under this contract
that the Board may require for its purposes.
8. This
contract is not assignable by the Contractor but shall remain
binding and effective on the successors and assigns of the
Board.
9. This
contract remains in force until September 19, 2002 unless
terminated earlier in accordance with section 10 of this
agreement.
10.
(a) This contract may
be terminated prior to September 19, 2002:
i. By
either party, by giving the other party at least 30 days'
written notice of the termination;
ii. By
the Board without notice, if the Contractor, fails to provide the
services, or fails to provide the services to the standard, set
out in section 1.
(b) If the contract is
terminated pursuant to clause (a), the total price payable under
this contract to the date of termination for the services
contracted to be provided is an amount which bears in proportion
to the total contract price the ratio which the services provided
by the contractor to the date of termination bear to the total
services agreed to be provided herein.
11. Any amendment to this
agreement must be made in writing and signed by both parties.
[6] Part of the argument of the
Appellant is that it was not the contractor or
"employer". There are two problems with that.
1. It signed the
contract.
2. Even if it is not the
contractor, it is the agent for the Board and as agent, it is
liable under the contract.
Finally, other bodies involved in the Board knew that some
legal entity had to receive the grants and funding, account for
them, and enter into contracts for the Board. The Board appointed
the Appellant to do this and the Appellant accepted that
appointment. Thus in relation to Tammy, the Appellant accepted
responsibility under its contract with her and, in any event, is
responsible as agent of the Board.
[7] Respecting the contract, Exhibit
A-4, the evidence respecting the following clauses is clear and
unequivocal that:
1.(a)(iv) Tammy reported to the Board at its meetings
every two weeks and took direction from the Board and its
appointed supervisors over her.
1.(a)(vi) Documented and reported her activities to the
Board and its appointed supervisors. Some of her routine reports,
as distinct from her client-related reports are in exhibit.
2. Did this
faithfully and received all of her referrals from the Committee
and report back to the Committee on the clients' progress
through the enumerated "stages" set and mandated by the
Committee.
3.(b) Did attend at her office in the
Appellant's premises in school hours and did provide the
services required.
4. Did receive her
expenses accordingly. (It should be stated that, in the
Court's view, this particular arrangement was merely one of
administrative convenience and does not of itself indicate
employment. Rather, it was a convenient operating system, based
on an existing system).
[8] Using the Wiebe Door Services
Ltd. v. Minister of National Revenue, [1986] F.C. 553
tests:
1.
Control: Tammy was
controlled by the Board. She received all of her directions from
it, took courses it approved, dealt with its clients as it
directed and reported to it according to its routines, forms and
timing. The timing of the completion of her various stages of
work on ongoing files was done at its direction.
2.
Tools:
All of her office premises, equipment, and forms were supplied by
the Board or the Appellant at the Board's direction, except
her vehicle, for which she was paid mileage.
3. Chance of Profit or
Loss: Tammy was paid regularly and received sick leave,
holidays and other normal benefits associated with a salaried
position. She apparently did work hours in excess of 40 hours a
week, and this could constitute a loss to her. However, her
general arrangement was that of an employee who did not have a
pension benefit.
4.
Integration: Tammy was fully integrated into
the Board's functions. Neither could operate without the
other during the period in question. Tammy was not in business on
her own account.
[9] Part of the problem in this case
is that the whole programme was new and developing during the
period in question. It required the good will and active
cooperation of all of the care suppliers and because it was new
and developing, the Board had to participate actively and Tammy
had to report in detail so that each could assist the other to
function and Tammy could be directed to carry out the developing
policy and activity of the board in a developing, non-school
programme to determine and meet all the non-school necessities to
keep children in school and give them a good education and a good
start in life. The result is that the Committee of the Board, and
its supervisor, directed Tammy as to the who, what, why and
sometimes or, perhaps often (depending on the case), the when and
where; and because every thing was new and developing, Tammy had
to receive this direction in order to perform her duties under
what were developing guidelines. Thus, while all involved were
completely bona fide to each other and to the needs of a
large rural community, the result in respect to Tammy is that she
was in the position of an employee during the period in question.
Tammy was not in business on her own account.
[10] For these reasons, the appeal is
dismissed. Tammy was an employee of the Appellant, under a
contract of service, in the Appellant's capacity as an agent
of the Board, during the period in question.
Signed at Vancouver, British Columbia, this 16th day of
September, 2004.
Beaubier, J.
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