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Citation: 2004TCC456
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Date: 20040629
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Docket: 2003-4256(EI)
2003-4259(CPP)
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BETWEEN:
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RICHARD D. GARNEAU,
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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
PAMELA HOLMERSON,
Intervener.
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____________________________________________________________________
REASONS FOR JUDGMENT
Beaubier, J.
[1] These appeals were heard together
on common evidence at Calgary, Alberta on June 15, 2004. The
Appellant testified. The Respondent called the Intervener, Pamela
Holmerson (the "Worker"). The amounts in dispute and
the hours and days were agreed by all the parties to be those set
out in Exhibit A-4 and on page 1 of Exhibit A-9 and they are
found to be the only dates, hours and amounts respecting the
Worker and Jeanette and Richard Garneau in the calendar year
2001, contrary to any particulars to the contrary which may be
alleged by the Respondent in the T-4, Exhibit A-1, or in the
Notice of Assessment, Exhibit A-2.
[2] The particulars in dispute are set
out in the Reply to the Notice of Appeal in 2003-4259(CPP),
paragraphs 5 to 9 inclusive, which read:
5. In response
to the appeal, the Minister decided that:
(a) the employment
was pensionable as the Worker was employed by the Appellant under
a contract of service for the periods February 1, 2001 to April
30, 2001 and October 20, 2001 to November 25, 2001, and
(b) notwithstanding
the above, if it is determined that the Appellant was not the
employer, then Jeanette was the employer and the Appellant was
the deemed employer because he paid the Worker.
6. Jeanette
did not appeal to the Minister for a reconsideration of the
Notices of Assessment dated March 18, 2003.
7. In so
deciding as the Minister did the Minister relied on the following
assumptions of fact:
(a) Jeanette has
Multiple Sclerosis and requires home care;
(b) Jeanette suffers
from a cognitive impairment and is incapable of entering into a
legal contract;
(c) the Appellant
entered into an agreement with the Calgary Regional Health
Authority to act as Jeanette's "self care
manager";
(d) the Appellant
advertised for a home care worker position in a local paper;
(e) the Appellant
hired the Worker to provide home care to Jeanette;
(f) the Worker
was Jeanette's primary care giver from February 1, 2001 to
April 30, 2001 and the secondary care giver from October 20, 2001
to November 25, 2001;
(g) the Worker
earned a set hourly wage;
(h) the Worker
originally earned $10.00 per hour which was increased to $12.00
per hour and then to $13.00 per hour;
(i) the
Appellant determined the Worker's rate of pay;
(j) the
Appellant paid the Worker on a semi-monthly basis;
(k) the Appellant
and Jeanette determined the Worker's hours and days of
work;
(l) work hours
needed to be scheduled to ensure that Jeanette received
appropriate care;
(m) the Worker was
normally required to work 7 to 8 hours per day;
(n) the Worker was
not free to come and go as she pleased;
(o) the Worker kept
track of her hours and submitted a record to the Appellant;
(p) the Appellant
and or Jeanette instructed the Worker on a daily basis;
(q) the Worker was
required to inform the Appellant of any leave requirements;
(r) the Worker's
personal service was required;
(s) the Worker
performed her services at the Appellant's premises;
(t) government
agencies provided the supplies, tools and equipment to Jeanette
for her use;
(u) the Worker did
not provide any tools or equipment;
(v) the Worker did
not incur any expenses in the performance of her duties;
(w) the Worker had no
investment in the business, and
(x) an Umpire's
decision was issued on February 27, 2003, in accordance with the
Employment Standards Code Statutes of Alberta, and it was
determined that the Worker was an employee while performing
services for Jeanette.
B.
ISSUES TO BE DECIDED
8. The issue
to be decided is whether the Worker was employed under a contract
of service with the Appellant during the periods from February 1,
2001 to April 30, 2001 and October 20, 2001 to November 25,
2001.
C.
STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF
SOUGHT
9. The
Respondent relies on, among other things, paragraph 6(1)(a) and
subsection 2(1) of the Canada Pension Plan and section 8.1
of the Canada Pension Plan Regulations.
[3] Assumptions 7 (a), (b), (c), (d),
(e), (f), (j), (k), (l), (m), (n), (p), (q), (r), (s), (t), (u),
(v), (w) and (x) were not refuted. With respect to the
remainder:
(g) and (h) The Worker's hourly wages
were:
February
$10.00 per hour
March and
April
$10.50 per hour
October 20 to November
5 $12.00 per hour
November 16 to
25
$13.00 per hour
(i) and (o) The Appellant and the
Worker negotiated the rate of pay and each kept track of
hours.
[4] There have been several forms of
litigation by the Queen and the parties respecting many issues
between the parties during the times in question. The Appellant
raised issue estoppel as a ground for halting these two appeals.
The Court finds that issue estoppel does not apply. These appeals
are respecting insurance, Employment Insurance and pension,
Canada Pension Plan, premiums. Neither of these two statutory
bodies were part of the previous litigation, nor were their
specific rules applicable to that litigation.
[5] Using the four-fold test set out
in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C.
553:
1.
Control
Jeanette Garneau suffered from Multiple Sclerosis and at times
could not give directions. Richard was the primary care giver and
he directed the Worker in all alleged employment matters. Richard
controlled the Worker.
2. Ownership
of Tools
All tools were owned or in the control of the Garneaus. The
Worker supplied no tools.
3. Chance of
Profit, Risk of Loss
The Worker had no chance of profit or risk of loss. If she
came to work, she was paid a wage.
4.
Integration
The Worker was completely integrated into the Garneaus'
household and care routine at the direction of Richard and
Jeanette. She was not in business. She was a care-giver employee
of the Appellant.
[6] For these reasons, the appeal is
dismissed. However it is clear that from the beginning the Worker
and Richard arranged an employment contract and that Richard
agreed to pay the Appellant for statutory holidays and other
employment benefits such as holiday pay. (See Exhibits R-1 and
A-9). Thus when the Worker received her gross wages they included
her employee premiums for Employment Insurance and Canada Pension
Plan and she, as a long time wage earner and an experienced
employee, knew that. It was implicit in their agreement that she
is Richard's agent to pay the employees' portions of the
premiums in dispute and that was a condition of the Worker
receiving her gross wages. Nonetheless, Richard remains
responsible for the employer portions of the premiums.
Signed at Saskatoon, Saskatchewan, this 29th day of June
2004.
Beaubier, J.
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