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Citation: 2003TCC657
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Date: 20030930
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Docket: 2002-4881(EI)
2002-4882(CPP)
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BETWEEN:
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NORTH SHORE ASSOCIATION FOR THE MENTALLY
HANDICAPPED,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Bonner, J.
[1] The Appellant appeals from a
decision of the Minister of National Revenue (the
"Minister") made October 24, 2002 that Tianne Tucker
was engaged by the Appellant under a contract of service during
the period September 20, 2001 to March 22, 2002. The
Minister's decision was based on both paragraphs
6(1)(a) of the Canada Pension Plan
("CPP") and 5(1)(a) of the Employment
Insurance Act ("EI"). During the
period Ms. Tucker provided respite care to the Buchanan family
whose child Rachel suffered from a severe seizure disorder
resulting from a problem with the function of her brain.
[2] The care was provided within the
framework of a respite care program funded by the province of
British Columbia. The program is intended to assist families who
care at home for a mentally disabled child. The intent is to
provide parents with periods of relief from the ongoing burden of
care and in that way to reduce stress within the home. The
program works by matching families with a screened and qualified
caregiver and by paying for a duly authorized quantity of
appropriate care.
[3] The issue in the appeals is
whether Ms. Tucker cared for Rachel as an employee of the
Appellant working under a contract of service or whether her work
was performed under a contract for services.
[4] It is the position of the
Appellant that caregivers working within the program are not its
employees. Instead, according to the Appellant, caregivers
contract with it to provide specific services under regulated
conditions.
[5] Two witnesses testified at the
hearing of the appeals. They were Andrea Janes, a Program
Manager employed by the Appellant, and Claire Buchanan,
mother of Rachel. Ms. Tucker did not testify. Counsel indicated
that it was not practical to call Ms. Tucker, who now lives in
Montreal, to attend at the hearing which was held in
Vancouver.
[6] The Appellant operates the respite
care program under a contract, (Ex A-1), with the
British Columbia Ministry for Children and Families (the
Ministry). The contract calls upon the Appellant to provide
services specified in a schedule. It requires the Province to pay
the Appellant for the provision of those services. The contract
stipulates that the parties must not do anything that would
result in personnel hired by the Appellant being considered
employees of the Province. The schedule to the contract describes
the outcome desired by the Province. It is that the child be
safely maintained in the family home, that stress be reduced
within the family and that the family be enabled to cope with the
demands of child rearing. The schedule calls upon the Appellant
to provide or deliver or cause to be provided or delivered a
variety of services including the following:
"(a) Recruit, interview
and screen applicants
(b) Hire, select and
assign respite caregivers according to NSAMH policy
(c) Train qualified
caregivers to provide respite to families referred by Ministry
for Children and Families
(d) Monitor and
evaluate respite services
(e) Meet the unique
and distinctive needs of each family
(f) Provide
monthly statements which detail the families that have been
serviced
(g) Billing
System:
- 0 to 12 hours: bill for hours used daily @ $7.50 for regular
contract, $10.00 for more challenging contracts
- 12 to 24 hours: bill for 12 hours, overnight rate @ $90.00
for regular contract and $120.00 for more challenging
contracts
(h) Maximum billable
hours per month is $1,884.00"
[7] In practice an individual
arrangement for the provision of care starts with an application
by the family of a child with developmental disabilities. A
social worker employed by the Ministry meets with the family and
negotiates an "Authorization and Service Plan" which
fixes the number of hours of care which the Ministry is prepared
to fund. The authorization form permits the family to suggest who
the caregiver might be. In this case, the Buchanan family had no
suggestion to make and Ms. Tucker, who was known to the Appellant
as a result of work she had done as a volunteer, was suggested by
the Appellant. Ms. Tucker and the Buchanan family met. Each
was satisfied with the other.
[8] Subsequently the Appellant
performed a background check on Ms. Tucker and furnished her with
a copy of the Appellant's respite program manual.
Ms. Tucker was asked to read it. The document is some
twenty-two pages in length. It sets out the job description of
the respite caregiver. The requirements include the
following:
"- Obtain all information pertinent to the child and
his/her needs prior to providing care. It is also the
responsibility of the family to provide this information to the
caregiver.
- Confirm dates and times of scheduled visits with the
family.
- According to the requests and specifications of the family,
assist the child with all personal routines. (e.g. personal care,
preparation of meals, bedtime routines)
- Follow all specified programs as outlined by the family.
This may include sign language, behaviour management, and
physical therapy. Please note that respite caregivers are not
expected to act as therapists i.e. they are not expected to
develop a behaviour modification plan but would be expected to
adhere to any behaviour modification plans that are already
practiced within the home.
- With an emphasis on socialization and age appropriate
activities, provide the child with empathetic and supportive
companionship and supervision.
- Accurately complete timesheets and submit them to the NSAMH
- (the Appellant) - according to deadlines."
The program manual notes:
"Although caregivers are not entitled to such things as
benefits and paid vacation, respite caregivers are covered by the
Association's liability policy....
Caregivers are also covered by WCB and the Ministry for
Children's and Family Developments insurance policy, which
covers individuals for up to one million dollars in
liability...."
[9] Ms. Janes described the program
manual as a philosophical document not similar to an employment
manual. In my view the manual is much more than a philosophical
document. It sets forth the Appellant's policy on a number of
topics related to the operation of the program. It contains
specific statements of the Appellant's expectations and
detailed procedures which are to be followed by caregivers. The
directions relate to such matters as behaviour management, cases
of abuse and neglect, providing personal care, hygiene,
medication, emergencies, missing children and the reporting of
accidents and incidents.
[10] Before starting to provide care Ms.
Tucker signed a letter of agreement with the Appellant the
purpose of which was to confirm her appointment as Rachel's
caregiver within the Children's Community-Based Respite
Program of the Appellant. The terms of the letter of agreement
included the following:
"Respite caregivers are independent contractors,
providing contracted services and are not employees of the North
Shore Association for the Mentally Handicapped.
The Respite Care Manual must be reviewed before commencing a
respite contract. Caregivers must have access to this manual
during every respite shift. Caregivers must adhere to the
policies and procedures as outlined in the manual and must uphold
the standards and level of performance which are implicit in this
document.
I have read and agree to the terms of the above agreement. I
have read and agree to adhere to the policies and procedures as
outlined in the Respite Care Manual."
The letter also provided for termination for cause but Ms.
Janes explained that it is the family which normally terminates
the caregiver.
[11] Ms. Tucker was paid by the Appellant
for her work as a caregiver following the submission to the
Appellant of a timesheet recording the number of hours of care
provided. Payment was made at an hourly rate which had been fixed
in the authorization and service plan.
[12] Caregivers are not paid when they take
time off for illness.
[13] Ms. Janes indicated that the Appellant
does not in practice supervise caregivers. The Appellant might,
she said, call the family to ensure that all was well and might
also offer to serve as a resource.
[14] The workers are not able to increase
the revenues earned under the agreement with the Appellant. They
may, of course, work extra hours by separate agreement with the
family but in such case they had to look to the family for
payment.
[15] As a practical matter caregivers are
not exposed to a risk of loss under the arrangement with the
Appellant. The base of care-giving operations is the home
of the child. It is the responsibility of parents to provide all
toys and supplies required by the child and to pay the cost of
any outings in the community.
[16] Caregivers are not permitted to employ
a substitute. The family selects caregivers subject to the
screening and contracting process conducted by the Appellant as
outlined above.
[17] Ms. Tucker's work schedules were
fixed by agreement with the family following discussions held
each week. The caregiver job description portion of the manual
contemplates that the family will exercise a measure of control
and direction over the work of the caregiver. At paragraphs 4 and
5 of the "Respite Caregiver: Job Description" portion
of the manual the following is found:
"According to the requests and specifications of the
family, assist the child with all personal routines. (e.g.
personal care, preparation of meals, bedtime routines)
Follow all specified programs as outlined by the family. This
may include sign language, behaviour management, and physical
therapy. Please note that respite caregivers are not expected to
act as therapists i.e. they are not expected to develop a
behaviour modification plan but would be expected to adhere to
any behaviour modification plans that are already practiced
within the home."
[18] Both counsel made extensive and helpful
references to the authorities on the distinction between
employment contracts and contracts for services. It was common
ground that at this time the leading authority dealing with the
distinction is 671122 Ontario Ltd. v. Sagaz Industries Canada
Inc. 2001 SCC 59. In that case the Supreme Court considered
the distinction in the context of the rule which attaches to an
employer vicarious liability for the tortious actions of an
employee. Following a review of the relevant case-law, and in
particular, the decision of the Federal Court of Appeal in
Wiebe Door Services Ltd. v. M.N.R. [1986] 3 F.C. 553.
Major J., speaking for the Court, said the following:
"In my opinion, there is no one conclusive test which can
be universally applied to determine whether a person is an
employee or an independent contractor. Lord Denning stated in
Stevenson Jordan, supra, that it may be impossible to give
a precise definition of the distinction (p. 111) and,
similarly, Fleming observed that "no single test seems to
yield an invariably clear and acceptable answer to the many
variables of ever changing employment relations ..."
(p. 416). Further, I agree with MacGuigan J.A. in Wiebe
Door, at p. 563, citing Atiyah, supra, at p. 38, that
what must always occur is a search for the total relationship of
the parties:
[I]t is exceedingly doubtful whether the search for a formula in
the nature of a single test for identifying a contract of service
any longer serves a useful purpose.... The most that can
profitably be done is to examine all the possible factors which
have been referred to in these cases as bearing on the nature of
the relationship between the parties concerned. Clearly not all
of these factors will be relevant in all cases, or have the same
weight in all cases. Equally clearly no magic formula can be
propounded for determining which factors should, in any given
case, be treated as the determining ones.
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."
[19] Counsel for the Appellant took the
position that the caregivers are independent contractors. He
argued in the alternative that caregivers, if employees, were
employees of the Province. He submitted that the Appellant did
not have the right to control Ms. Tucker for it did not dictate
the time when she worked and it permitted caregivers to decline
the offer of a contract. Counsel pointed out that monitoring the
results of a worker's efforts does not constitute the
exercise of control. He noted that tools are not required for the
provision of care. He pointed out in relation to the chance of
profit factor that caregivers are entitled to accept or refuse
work. He relied heavily on the decision of this Court in
Family Services Perth-Huron v. M.N.R., [2000] TCJ No. 2, a
case where the facts were said to be similar to the present.
[20] In my opinion Ms. Tucker was an hourly
rated worker employed by the Appellant. She took no financial
risk, used no tools of her own and apparently made no investment
in respect of the provision of care. It was not suggested that
she was able to negotiate in respect of compensation. The rate of
pay was fixed in the authorization and service plan, a document
to which she was not a party. She was not in a position to manage
her work as caregiver in any way which would have an effect on
the financial outcome. As noted already, she was subject to
control with respect to the manner in which the work was to be
performed. The Appellant's manual governed the entire
approach to the work and Ms. Tucker was obliged to follow
it.
[21] It is true that Ms. Tucker's
care-giving schedule was to be worked out between her and the
Buchanan family but I do not regard this fact as indicative of
the absence of a master-servant relationship. It is not at all
uncommon for persons who are clearly employees to work in
accordance with a schedule negotiated with a view to meeting the
needs of both employer and employee.
[22] The job description at page 3 of the
program manual states that the caregivers "are under
contract and are not employees of the Association". The view
taken by the parties with regard to the nature of the
relationship is not determinative.[1]
[23] When the arrangement between the
Appellant and Ms. Tucker is viewed as a whole it is evident that
it is not directed toward the exchange of money for a defined
result as is often the case in a contract for services. Rather
the arrangement is one which required Ms. Tucker to place her
time and labour at the disposal of the Appellant and that, as I
see it, is typical of a contract of service. When the
relationship is viewed as a whole there is, in my opinion,
virtually nothing which suggests that Ms. Tucker, in providing
her labour, did so as a person in business on her own
account.
[24] Finally with respect to the decision of
this Court in Family Services Perth-Huron v. M.N.R.
(supra) I will note that there appear to be major factual
differences between the two cases, particularly in the area of
control of the manner in which the worker was to carry out his or
her duties.
[25] It is clear on the evidence that it was
the Appellant and not the Province which employed Ms. Tucker. The
Province did not authorize the Appellant to hire employees to
work for the Province nor did the Appellant purport to do so.
[26] The appeals will therefore be
dismissed.
Signed at Toronto, Ontario, this 30th day of September
2003.
Bonner, J.
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