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Citation: 2004TCC390
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Date: 20040603
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Docket: 2003-2569(EI), 2003-2580(CPP)
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BETWEEN:
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THE ROYAL WINNIPEG BALLET,
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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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Docket: 2003-2570(EI), 2003-2571(CPP)
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AND BETWEEN:
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KERRIE SOUSTER,
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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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Docket: 2003-2572(EI), 2003-2573(CPP)
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AND BETWEEN:
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JOHN WRIGHT,
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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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Docket: 2003-2574(EI), 2003-2575(CPP)
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AND BETWEEN:
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TARA BIRTWHISTLE,
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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
Miller J.
[1] The Royal Winnipeg Ballet has been
synonymous with dancing excellence for decades. It has attracted
outstanding dancers in its performances in Canada and throughout
the world. This case deals with the status of three dancers
during the period from January 2001 to July 2001 for purposes of
their insurability under the Employment Insurance Act and
pensionability under the Canada Pension Plan. Were the
Appellants, Kerrie Souster, John Wright and Tara Birtwhistle
(the "Dancers"), independent contractors under a
contract for service with The Royal Winnipeg Ballet for the
period in question, or were they employees under a contract of
service with The Royal Winnipeg Ballet? The Dancers and The Royal
Winnipeg Ballet maintain that those engaged in the visual
performing arts are in a unique position, and the standard tests
of employment can only be viewed in that light. When so viewed,
appreciating this uniqueness, the arrangement is one of an
independent contractor nature. Not so, says the Respondent. All
working Canadians, including highly-skilled professionals, must
be treated uniformly and fairly, and when the appropriate
well-developed tests of employment are applied, there is little
doubt this arrangement is one of employment.
[2] The circumstances present indices
of both an employment and an independent contractor arrangement.
I find on balance however that, in their arrangement with The
Royal Winnipeg Ballet, the Dancers did not carry on business on
their own account.
Facts
Dancers' arrangement with The Royal Winnipeg
Ballet
[3] The Royal Winnipeg Ballet was
established in 1939. It consists of two elements: a school, and
the performance side, the ballet company itself. The ballet
company's season generally runs from August to May though
this can vary. Normally, the ballet company performs four series
in Winnipeg, and then also tours Canada and the United States,
and occasionally overseas. Planning for production starts two or
three years in advance of the first performance, depending on
whether it is a new performance or an archived piece.
[4] The artistic director of The Royal
Winnipeg Ballet, Mr. André Lewis, is in charge of
selecting the dancers for an upcoming season. There are three
sources for the dancers; the current complement of dancers with
The Royal Winnipeg Ballet, recruits from The Royal Winnipeg
Ballet's school, and dancers who audition while The Royal
Winnipeg Ballet is on tour. Dancers performing for The Royal
Winnipeg Ballet will be given a letter of intent from The Royal
Winnipeg Ballet by the end of February in one season indicating
whether the dancer will have a contract for the following season.
He indicated he does so based on artistic merit and technical
expertise, in discussion with the dancer. If Mr. Lewis does
not see a position for a particular dancer in the upcoming
season, that dancer will also be notified prior to the end of
February. Mr. Lewis will discuss with the more experienced
dancers the potential roles available for an upcoming season.
[5] An average complement of dancers
with The Royal Winnipeg Ballet for a season is approximately 25.
This will be made up of dancers of the following levels:
Apprentices, Corps 1-6, Second Soloist 1-2, First Soloist 1-5 and
Principal. After the artistic director has determined whom he
wishes to engage and in which category, letters of intent are
sent to the dancers. Where a dancer has responded positively, The
Royal Winnipeg Ballet and the dancer enter an "Engagement
Contract". This occurs in April or May of each year. The
contract is for a single season. It stipulates the level at which
the dancers engage and at what compensation for rehearsals,
Winnipeg performances, and out-of-town performances. It also
states that the parties agree to be bound by the "Canadian
Ballet Agreement", a collective bargaining agreement between
The Royal Winnipeg Ballet and Canadian Actor's Equity
Association ("CAEA"), negotiated every three years.
Finally, there is provision for any special riders; for example,
a common rider would be that new compensation rates would apply
retroactively to the contract if the collective bargaining
agreement between The Royal Winnipeg Ballet and CAEA is extended
or a new one comes into force during the term of the contract.
The dancers can negotiate other elements of the contracts, such
as increased compensation above scale (that is the scale in the
Canadian Ballet Agreement),[1] special leaves for other engagements, travelling
with a pet, as negotiated by Ms. Birtwhistle, or early leave
from rehearsals for family reasons.
[6] As well as the corps complement of
dancers, The Royal Winnipeg Ballet will occasionally hire a
"local jobber", a dancer at any level engaged for a
limited period of time during a season, and a "guest
artist", a dancer at the principal or high soloist level,
again contracted for a limited engagement. The "engagement
contracts" for such dancers are similar to the engagement
contracts for the dancers engaged for the entire season, other
than with respect to the time period. It would not be unusual for
a guest artist to negotiate compensation over-scale.
[7] Though not required by the
engagement contract between the dancer and The Royal Winnipeg
Ballet or by the Canadian Ballet Agreement, the dancers
contribute to a Dancer's Resource Transition Plan. This is a
fund used to assist professional dancers move from their career
in dancing to their next endeavour. If a dancer contributes to
this fund, and Ms. Birtwhistle and Mr. Wright testified that
they did, then The Royal Winnipeg Ballet will match such
contribution. The dancers can have such payments deducted from
their compensation.
[8] The dancers can also opt to have
federal income tax deducted from their compensation by The Royal
Winnipeg Ballet at whatever percentage they so choose. No Canada
Pension Plan contributions or Employment Insurance premiums are
taken from the dancer's compensation. The Dancers all had a
goods and services tax (GST) registration number and charged GST
on the fees received. The Royal Winnipeg Ballet withheld
deductions for CAEA dues and premiums for health benefits. The
Dancers were responsible for 25% of the cost of premiums for
disability benefits, with The Royal Winnipeg Ballet paying the
balance of the premiums for health benefits.
Collective Bargaining Agreement
[9] Before reviewing the testimony of
Tara Birtwhistle and John Wright, I shall highlight some of
the provisions of the 42-page Canadian Ballet Agreement which
governs the relationship between the Dancers and The Royal
Winnipeg Ballet. Ms. Susan Wallace, executive director at CAEA,
who was intimately involved with the negotiations of this
agreement, provided useful insight into the terms of the
agreement. The agreement does not just pertain to dancers, but
also covers stage managers, choreographers and ballet masters and
ballet mistresses. It does not govern recording performances,
simply live performances. The negotiating team for CAEA includes
a representative of the dancers, as well as stage managers. CAEA
is a party to several similar agreements including the National
Ballet Company, Alberta Ballet and Vancouver Opera. Ms. Wallace
made it clear there has been a long-standing basic understanding
with CAEA that the performing artists are independent
contractors, who enter contracts for single engagements. She
acknowledged two exceptions; first, stage managers are often
employees, and second, Alberta Ballet in Calgary traditionally
hires dancers as employees.
[10] The following are some provisions of
note in the Canadian Ballet Agreement.
PROVISIONS
Individual Artist's Contract
7.01 No Artist may take part in any
performances or rehearsals or do any work without first signing
an individual Artist's contract. All contracts and agreements
made by the Engager with the Artist engaged under this Basic
Agreement shall conform in every respect to all the provisions of
this Basic Agreement ... .
Assignment of Artist's Contract
8. The Engager
agrees that the individual Artist's contract between the
Engager and any Artist may be not assigned or transferred to any
individual or corporation unless the written consent of CAEA and
the Artist concerned shall have been endorsed on the face of the
contract or the transfer of said individual contract without such
written consent shall be deemed null and void.
Exclusive Service of the Artist
9. Except as
otherwise provided in the Artist's contract, the Artist shall
not accept any other engagement in a performance before a live
audience from the date of beginning of rehearsal and until said
contract is lawfully terminated, without the written consent of
the Engager. The Artist shall, however, have the right to accept
other engagements, not conflicting with the fulfilment of duties
under said contract, provided the Artist obtains the written
consent of Engager with reasonable advance notice to Engager.
If the Artist is a Principal or Soloist in the term covered by
said contract, the Artist may enter in to a written agreement to
be annexed to said contract, agreeing not to accept any other
engagement and to render services exclusively to the Engager and
not to render services to any other person or corporation without
the written consent of the Engager. The Artist shall recognize
that it is the Artist's responsibility to perform under the
CAEA contract in the live theatre. If during the term of
engagement under the CAEA contract, a Principal dancer or Soloist
receiving star or featured billing is also engaged for a radio or
television broadcast, the Artist shall require, as a condition of
that engagement, that any announcements, written or otherwise
which publicize appearance on radio or television, must expressly
mention that the Artist is currently appearing with the
company.
Lowering of Minimums and Waivers Prohibited
10. The Engager agrees
that the minimum terms and conditions governing the engagement of
Artists in Canada by the Engager are those contained herein, and
the Engager further agrees that it will not enter into any
contract with or engage any Artists in Canada upon terms and
conditions less favourable to the Artist than those set forth
herein. ... and the Engager further agrees that nothing in
this Basic Agreement shall be deemed to prevent any Artist from
negotiating for or obtaining better terms than the minimum terms
provided for herein.
Security Deposit (Bond)
15.01 Before contracting any Artists the Engager
shall deposit with CAEA (Toronto, Ontario, Canada) cash, a
certified cheque or other security of a bank chartered to do
business in Canada equal to at least one (1) week's
contractual financial obligation of the Engager to the Artists.
The Engager shall not be deemed to have performed its obligation
under this Basic Agreement until the same has been approved by
CAEA.
15.03 ... CAEA shall have the right to
require the Engager to post such bond or bonds or such other
security, including money, and in such amount as CAEA shall deem
necessary to insure the safe transportation and return of the
Artist.
Fees and Other Compensation
18.01 (A) Fees
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2000-2001
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2001-2002
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2002-2003
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Apprentice
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$349.94
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$360.44
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$371.25
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Corps 1
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$466.59
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$480.59
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$495.01
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Corps 2
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$491.31
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$506.05
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$521.23
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Corps 3
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$543.84
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$560.16
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$576.96
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Corps 4
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$561.35
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$578.19
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$595.54
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Corps 5
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$577.83
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$595.16
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$613.02
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Corps 6
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$599.46
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$617.44
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$635.97
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Second Soloist 1
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$634.48
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$653.51
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$673.12
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Second Soloist 2
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$653.02
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$672.61
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$692.79
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Second Soloist (3 to 5 years of seniority) + 2% additional per
season
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Fist Soloist 1
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$668.47
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$688.52
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$709.18
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First Soloist 2
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$707.61
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$728.84
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$750.70
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First Soloist 3
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$744.69
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$767.03
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$790.04
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First Soloist 4
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$775.59
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$798.86
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$822.82
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First Soloist 5
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$805.46
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$829.62
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$854.51
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Principal
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$941.42
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$969.66
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$998.75
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18.02 Categories
(A) The above categories -
Corps de Ballet, Second Soloist, First Soloist and Principal -
relate to the position of the Artist's billing in the overall
billing of the entire company and do not relate to the casting in
an individual ballet, or roles to be performed in any ballet.
(B) A Principal dancer is
one who is billed in the overall billing of the entire company in
the largest type face; a Soloist is one so billed in the second
largest type face, and a Corps de Ballet dancer is one who is so
billed in the third largest type face.
(D) The Engager agrees to
pay at least the minimum fee stipulated in this Basic Agreement
for the highest category under which the Artist is individually
contracted.
(E) The Engager may
require an Artist to render services in any category, whether or
not that category is specified on the Artist's individual
contract, unless the Engager and Artist mutually agree, at the
time of negotiation of the Artist's individual contract, that
the Artist may be required to perform in one (1) or two (2)
categories only. ...
Vacation Pay
18.04 All Artists engaged by the Engager shall
receive or accrue vacation pay according to the following
categories and rates ...
18.05 Per Diem (Accommodation on Tour - Living
Allowance)
(A) ...
(B) The meal allowance on
tour for the period July 1, 2000 to June 30, 2001 shall be
fifty-five dollars and thirty-five cents ($55.35) per day.
General Provisions for All Rehearsals
25.01 ...
(C) The Artist shall not
be required to rehearse more than two (2) hours of actual
overtime in any one (1) day. Should the Artist rehearse more than
two (2) hours of overtime, the Artist will be paid at double the
overtime rate for each half (½) hour or portion thereof
beyond the two (2) hours. (Also see Rule 25.02(B), (C) and (D)
and Rule 25.03(D) and (E) concerning span.)
Posting of Rehearsal and Performance Schedules
27.02 ... In the event that the Artist does
not inform the Engager that said Artist will be unable to attend
a rehearsal or a performance (see Rule 27.05) or is late for a
rehearsal call or a performance call, the person in charge of
said rehearsal or performance shall advise the Engager who may
deduct from the Artist's fee the half-hourly rate for each
half (½) hour or portion thereof for the time missed. The
Artist may appeal through CAEA the Engager's decision not to
pay the Artist for the time missed CAEA's decision on any
appealed case shall be final and binding. ...
29.16 Extraordinary Risks
(A) When the Artist is called upon to render services
involving extraordinary risks and is injured in the performance
thereof, either during rehearsal or performance, and is
consequently unable to rehearse or perform, the Artist shall
receive full fees until said Artist is able to return to the
company and resume engagement or for a maximum of five (5) years,
whichever occurs first.
...
(D) Artists shall have the
right to refuse to perform extraordinary risks.
Costumes, Wigs, Shoes, Make-Up, etc.
31.01 The Engager agrees to supply all Artists
with all properly fitted costumes including performance tights,
wigs and wig hairpins, jewellery, beards, hairpieces, shoes, body
paint and wet white and up to six (6) pairs of pointe shoe
ribbons (female artists), and shoe elastics per season, for all
performances and rehearsals and class, required by the Engager
and prior to such performances and rehearsals. Except where
prevented by an emergency, each female Artist will be assigned
their own performance tights for the season.
31.06 If at any time during a season an
Artist's footwear becomes unfit for dancing, the Engager will
replace from reserve stock, or else order to the dancer's
specifications a replacement. In cases of dispute over the
wearability of the footwear, the Engager, and the Ballet Master
or Ballet Mistress shall make the final decision.
34.02 Sick Leave
The Engager agrees that the Artist, while engaged, shall be
entitled to sick leave with full pay for not less than fourteen
(14) days from July 1 to June 30 of the following year, and the
maximum number of consecutive sick days taken per incident of
illness or accident cannot exceed seven (7) calendar days.
43. Guest Artist
Engagement
The Artist may be permitted at the Engager's discretion to
accept Guest Artist engagements outside the company. Should the
Engager grant such permission the Engager agrees to inform the
Artist in writing of any cost with regard to the Artist's
lost fees, costume or tape rental. It is the Artist's
responsibility to obtain the Engager's written permission
before concluding any agreement to accept such external Guest
Artist appearances.
49. Engager's
Rules
Artists will be subject to all Engager's rules which are not
in conflict with this Basic Agreement.
Testimony of John Wright
[11] Mr. Wright was a second soloist with
The Royal Winnipeg Ballet during the period in question. As a
second soloist he could perform certain character or leading
roles. He is currently a first soloist. Mr. Wright received his
first contract with The Royal Winnipeg Ballet in 1997. Both he
and his wife received engagement contracts from Mr. Lewis at the
Corps 4 level in 1997. They negotiated moving expenses and the
length of the contract in that first season contract.
Mr. Wright is currently engaged under his seventh, single
season contract.
[12] Mr. Wright described a typical
non-performance and typical performance day. On the
non-performance day, he would participate in an hour and one-half
warm-up class put on by The Royal Winnipeg Ballet. While The
Royal Winnipeg Ballet was required to provide this class, coached
by a ballet master or ballet mistress, the dancer was not
required to attend, and could opt to forgo a warm-up,
although this would be unlikely. The dancer could opt to warm up
where and how he or she pleased. Mr. Wright always attended, for,
as he put it, "he could not get through the day without
it". The first mandatory rehearsal was from 11:00 a.m. to
2:00 p.m. It was up to the artistic staff, led by Mr. Lewis, to
determine the nature of the rehearsal. The dancers could be
rehearsing more than one ballet at a time; often three one-hour
blocks, each for a different ballet. There is a minimum one-hour
break and then a second three-hour rehearsal. While in Winnipeg,
the dancers would rehearse five days per week.
[13] On performance days, for an evening
performance, the work day starts later in the day, at 12:30 or
1:00 p.m., again with a warm-up class followed by one rehearsal.
Each dancer prepares differently for a performance but most would
do some form of preparation starting an hour to an hour and
one-half prior to the performance.
[14] Special concessions would be made while
on tour; for example, there might be a day off after a day
flight, as only a certain number of hours per day could be spent
travelling. Such matters would be specifically negotiated through
CAEA.
[15] Mr. Wright described the collaboration
amongst the artistic director, choreographer and dancer. Each
dancer brings his or her own strengths, diversity, movements,
lifts and personality to a role. A choreographer attempts to
capture the artistic director's vision, and works with a
dancer to create movements to do so. The dancer provides nuances
within the role from their own strengths and interpretation,
though, as Mr. Lewis put it, that must be within the realm of
what is appropriate. Mr. Wright suggested that a choreographer
might rely on the dancer to modify or improve movements.
Conversely, the choreographer may advise on certain movements to
evoke certain emotions. The ballet master or the ballet mistress
serves as a dancer's eyes, and instructs in such specifics as
straighten here, or point there, though, according to Mr. Wright,
the final interpretative call remains his.
[16] Mr. Wright testified that he had
negotiated his fee above the scale though not substantially so.
He also contracted to do some modelling and movie work while
under contract with The Royal Winnipeg Ballet. If Mr. Wright
appeared as a guest with another troupe, mention would be made
that he was from The Royal Winnipeg Ballet. During the relevant
period, Mr. Wright performed as a guest artist with Ballet B.C.
and also performed for the Queen under contract with the Province
of Manitoba in a special jubilee presentation. Mr. Wright would
seek Mr. Lewis' approval to ensure such engagements could
work into his Royal Winnipeg Ballet schedule. Mr. Wright charged
GST, thought no actual invoices were submitted to The Royal
Winnipeg Ballet. He had The Royal Winnipeg Ballet withhold tax,
but no Canada Pension Plan contributions or employment insurance
premiums.
[17] Mr. Wright had to look after the
following expenses himself:
- fitness wear;
- rehearsal
wear;
- some shoes;
- gym fees, pilates
lessons;
- back brace;
- hernia belt;
- chiropractor and
massage above the $500 limit covered by the benefit plan;
- makeup; and
- classes with other
troupes while on the road.
[18] During The Royal Winnipeg Ballet's
off-season, Mr. Wright would continue his training as well as
carrying on other engagements, such as guest artist, film work or
modelling.
Testimony of Tara Birtwhistle
[19] Ms. Birtwhistle started her dance
career at age 14 and steadily advanced within The Royal Winnipeg
Ballet to the position of principal in 1999, a position which she
claimed meant she was a star. All her contracts with The Royal
Winnipeg Ballet were one season contracts. The Canadian Ballet
Agreement provides that a principal's contract must be for no
less than 46 weeks.
[20] Ms. Birtwhistle also attended the one
and one-half hour warm-up classes described by Mr. Wright, on an
unpaid basis. As a principal, her rehearsal time could be spent
in a separate studio, also working on more than one role. On
performance day, she conducts her own pre-performance routine
commencing at six o'clock for an eight o'clock show.
[21] With respect to the actual dancing
itself, Ms. Birtwhistle, as a principal, has considerable input
into how the artistic director's vision is performed on
stage. She works closely with both the artistic director and
choreographer in that regard, especially if it is a brand new
piece. Archived pieces can be learned to some extent off
videotape, though with assistance from the ballet master or
ballet mistress. Ms. Birtwhistle described the activities in the
development of a piece as a matter of collaboration. The final
performance, however, depends very much on the dancer's
artistic choices during the performance and how a dancer might
feel that day, as well as the dancer's own particular style.
As Ms. Birtwhistle pointed out, there could be a number of
different Juliets.
[22] With respect to her particular
contract, Ms. Birtwhistle did not negotiate over scale
compensation. She did negotiate concessions on tour (for example
having her dog accompany her) as well as leaves to do other
performances (for example, she toured with Julie Andrews and also
performed with Christopher Plummer). Ms. Birtwhistle
performed outside of The Royal Winnipeg Ballet in many galas,
including a performance for the Queen. She danced in fundraising
shows. She modelled and also did some film work. The film work
required a separate contract through ACTRA.
[23] Ms. Birtwhistle always filed as an
independent contractor. She too charged GST. She too had The
Royal Winnipeg Ballet withhold taxes. She described her own
expenses as similar to those of Mr. Wright's, but also
including:
- bandages,
lambswool;
- needles;
- ribbons;
- Advil;
- podiatry; and
- cross-training.
[24] Out of season, Ms. Birtwhistle
continued to take daily classes at her expense. She travels
overseas to receive lessons. She gave the example of flying to
Italy for sessions with a particular teacher.
[25] The Appellant, Ms. Souster, did not
testify.
The Law
[26] The law with respect to the issue of
employment versus independent contractor was extensively
canvassed by Justice Major in the Supreme Court of Canada case of
671122 Ontario Ltd. v. Sagaz Industries Canada Inc.[2] It is
unnecessary for me to undertake the same review, but rather use
as my starting point, Justice Major's penultimate
comments:
47 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.
48 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.
[27] To ascertain whether a worker, in
performing services for a payor, is in business on his or her own
account, Justice Major suggests the following non-exclusive
list of factors to consider:
(a) control, which is always to be
considered;
(b) ownership of equipment;
(c) whether a worker hires his or her own
employees;
(d) degree of financial risks;
(e) degree of responsibility for
investment and management; and
(f) opportunity for profit.
[28] Before considering whether there are
any other factors relevant to this particular case, I make three
observations regarding Justice Major's recommended approach.
First, he does not list as a factor the intention of the parties
- how they believe their relationship is to be characterized.
Second, he does not rely on the integration test. Third, his
factors, I suggest, can be neatly divided into two categories:
control and economic. I will address each of these
observations.
[29] First, with respect to the import of
the Parties' intention, I received differing views from
counsel. Both the Respondent and counsel for The Royal Winnipeg
Ballet suggested that intention is a factor to be considered in
resolving the employee-independent contractor dilemma, along with
all other factors. The weight to be given to this factor, as with
the other factors, will depend on the particular facts and
circumstances of the case. Counsel for the Dancers approached
this factor differently, relying on Justice Noel's lead in
Wolf v. Canada[3] where he stated at page 6871:
123 ... My assessment of
the total relationship of the parties yields no clear result
which is why I believe regard must be had to how the parties
viewed their relationship.
124 This is not a case where the
parties labelled their relationship in a certain way with a view
of achieving a tax benefit. No sham or window dressing of any
sort is suggested. It follows that the manner in which the
parties viewed their agreement must prevail unless they can be
shown to have been mistaken as to the true nature of their
relationship. In this respect, the evidence when assessed in the
light of the relevant legal tests is at best neutral. As the
parties considered that they were engaged in an independent
contractor relationship and as they acted in a manner that was
consistent with this relationship, I do not believe that it was
open to the Tax Court Judge to disregard their understanding
(Compare Montreal v. Montreal Locomotive Works Ltd., [30]
1 D.L.R. 161 at 170.
[31] Intent only becomes a factor in the
event the relevant legal tests yield no definitive result, and
where no sham or window dressing is suggested. I agree with this
approach. In appropriate circumstances intention simply serves as
a tie-breaker. This accords with Justice Major's
approach; it does not elevate "intention" to a more
primary role. If "intention" was given the prominence
the Supreme Court of Canada appears to have reserved for the
control factor, there would be a risk that payors, employers,
employees and independent contractors might view it as some
endorsement of a right to opt in or out of the employment
insurance scheme. It should be borne in mind this is not a
voluntary program.
[32] Secondly, with respect to the
integration test, whatever clarity can be attributed to that
term, there has been considerable confusion as to whether it was
part of the Wiebe Door Services Ltd. v. M.N.R.[4] test, a stand-alone
test, or even an appropriate test at all. The Supreme Court of
Canada has not offered the integration test as a factor to
consider. I interpret this as the death knoll of this particular
test, and will refer to it no more.
[33] Thirdly, what are the critical,
distinguishing control and economic factors in the context of a
ballet company. With respect to control, I would break down this
factor into a discussion of the following: who determines how the
workers perform (this goes to the very question of artistic
talent and independence of expression), who determines what role
a dancer is to perform, who is responsible for management of the
dancers generally (for example, who determines what engagements
can be accepted). What might appear to be control factors, but do
not have any bearing on distinguishing an employee from an
independent contractor in the performing arts setting are those
factors that would be the same regardless of the nature of the
relationship; for example, who determines the timing of the
rehearsals and the timing of performances, what shows are to be
performed in a season, when should the season run, what costumes
should be worn, and who can be substituted for a performer.[5] All these factors,
by the very nature of the work, will always be within the control
of the arts company, be it ballet, opera or theatre. To rely on
those factors to find an employment arrangement, would
effectively preclude any possibility of an independent contractor
arrangement in a performing arts setting. I find that these type
of factors do not assist in drawing a distinction between an
employee and an independent contractor in the performing arts
environment. Only those factors where there is room to manoeuvre
to a position of more or less control should be assessed.
[34] Similarly, the same approach can be
taken in a review of the economic factors. Those factors that, by
the nature of the work itself, are constant, regardless of the
nature of the relationship cannot be viewed as distinguishing
factors. This would include the provision of tools, not in the
ordinary sense, as there are few tools the dancer brings to the
work, but in the sense of the dancer's primary
"tool" being the dancer's body. This factor does
not distinguish employee from independent contractor, as in both
relationships the dancer provides the primary tool of his or her
body. The ballet company can never "own" that
particular tool. The dancer will always provide the body, as the
surgeon supplies the hands, the professor supplies the brains and
the sommelier supplies the palate. Ownership of this
"tool" does not distinguish an employee from an
independent contractor.
[35] Financial risks, chance of profit,
degree of responsibility for investment and ownership of
equipment (other than the body itself) however, can vary, and
these are the economic factors that need to be considered to
properly identify the true relationship.
[36] In following this approach, I eliminate
several factors as not indicative, in a ballet company setting,
of one relationship or another. The result is that the
distinction must be based on only a handful of critical factors,
with an inherent risk that each may take on greater import. A
second result is that the eliminated factors remove certain
biases; the bias that because the ballet company controls the
time of performance and rehearsals the arrangement must be
employment, or the bias that because a dancer's body is the
primary tool, the arrangement must be one of an independent
contractor. The Respondent did not argue that because of the
nature of the performing arts, and the inherent control of the
ballet company, the artist must always necessarily be an
employee. Nor did the Appellants argue that because of the nature
of the performing arts, and the dancer's ownership of the
primary tool, the artist must always necessarily be an
independent contractor. The nature of the performing arts does
not, in and of itself, provide the answer as to the real legal
relationship; it is, therefore, necessary to explore those few
critical distinguishing factors that can draw the
distinction.
[37] Are there other factors that might
assist me? I agree with all counsel that the Canadian Ballet
Agreement should be reviewed. It touches on all the other
factors. There are no suggestions that the agreement did anything
other than reflect the terms of the arrangement. The agreement
should, however, be reviewed in light of the Status of The
Artist Act.[6]
[38] With this backdrop, I now turn to an
analysis of the critical factors.
Analysis
Control factors
Who determines how the worker performs?
[39] How the dancer performs is a
multi-faceted question. It is not simply a matter of freedom of
artistic expression. "Control", in the context of how a
dancer dances, is an awkward concept, because it deals with the
dancer's talent, that undefinable combination of skill,
flair, soul, beauty and grace - in many respects, the
uncontrollable. But, again, it is more than just artistic
expression at issue. I must also consider the dancer's
technique, the coordination of the dance, the vision and artistic
integrity of the performance, the differences in talent amongst
dancers in a ballet troupe and the effect of the overall work
environment on how the dancer performs.
[40] I will deal first with artistic
expression, that innate, individual creative artistry, the very
essence of which is unique to each individual. The argument goes
that any attempt to control this nebulous quality might be a
stifling of creativity. The idea of "control" in this
sense is an anathema to the performing artist. My impression is
that The Royal Winnipeg Ballet recognizes this; indeed, certain
dancers were chosen for certain roles to bring this very
creativity to a role. That is not what is being subjected to
control; neither the Dancers nor The Royal Winnipeg Ballet would
want it to be. That artistic license is what can take a dancer
from a good performance to a great performance. The fact it
cannot, nor should not, be controlled does not lead to a
conclusion that how the dancer performs is completely up to the
dancer, and consequently that the dancer is an independent
contractor. This one factor alone must be kept in context; first,
that it is only one element of how the dancer performs; how the
dancer performs is only one factor of control; and control is
only one factor in determining the legal relationship.
[41] Looking then to other elements of what
constitutes how the dancer performs, I turn to the question of
technique. Mr. Wright acknowledged that the ballet master would
provide guidance for the actual physical technical moves
required. He gave the example of a choreographer suggesting to a
dancer that to evoke a sentiment of sorrow, he might turn his
back and drop his shoulders. The dancers rehearse an average of
six hours a day, five days a week throughout the season, with a
reduced rehearsal time on performance days. They rehearse under
the watchful eyes of ballet masters, ballet mistresses,
choreographers and the artistic director. They are coached. I
conclude from Mr. Wright's and Ms. Birtwhistle's
evidence that they, as a soloist and principal, would have some
input in discussions with the artistic director about movements
and the portrayal of the role. I did not, however, take from this
that the Dancers called the shots: the artistic staff did.
[42] Similarly, with respect to coordination
of the dance, there is no evidence to suggest the Dancers
determine the timing, pacing and coordinating of movements with
the other performers.
[43] Further, the dance is rehearsed and
performed to meet the artistic director's vision. Mr. Wright
acknowledged it was the artistic director's vision that he
attempted to create. The artistic director himself described part
of his role as ensuring the artistic integrity of the piece. He
may choose to listen to a senior dancer's suggestions, but he
has the final word on what fits within his vision. This is not to
suggest there is no collaboration. There is some. But it is quite
different from the television production team such as in the case
of Les Productions Petit Bonhomme Inc. v. M.N.R.,[7] in which
Justice Angers described the arrangement as:
104 All these features of each
person's involvement in the production of the programs in
question support the conclusion that a production of this type is
the result of the ideas, talent, creativity, and know-how brought
by all to the performance of their respective duties, which they
carry out under the control of the producer in terms of how their
work is to be done. Everything takes place in an atmosphere of
collaboration among professionals. Thus, the situation of the
workers in these appeals is more like that of self-employed
workers.
[44] In that case the hairstylists did not
have any other hairstylists overseeing or coaching them, nor did
the sound recorders have other sound recorders watching their
every move. The Dancers, however, had a team of experienced
professional dancers in the form of ballet masters, ballet
mistresses, choreographers and the artistic director doing
exactly that. Unlike the producer of the television show, the
artistic director and staff of The Royal Winnipeg Ballet do far
more than collaborate with the Dancers. The overall work
environment is one more of subordination than collaboration,
notwithstanding some element of the latter with senior dancers.
This leads to the question of whether a principal, for example,
has attained such a level of artistic independence that her
arrangement is dissimilar from the other dancers, in that how she
performs is not subjected to the control of The Royal Winnipeg
Ballet.
[45] Ms. Birtwhistle described herself as
the star. She testified that what came from this status was her
own studio within which to rehearse, discussions with the
artistic director as to appropriate roles, some input on
portrayal of those roles and concessions when travelling. Based
on the evidence, it is impossible to quantify how much more input
Ms. Birtwhistle had in the making of artistic decisions than the
other dancers, though clearly, as a principal, she generally had
more influence. I have not been convinced, however, that any such
influence or input overrides an environment in which The Royal
Winnipeg Ballet artistic staff coach, direct, scrutinize and
effectively control many elements of how the dancers
performs.
Who determines what roles the Dancers are to
perform?
[46] Ultimately, it is the Artistic Director
who decides which dancer performs which role. Yet, Ms.
Birtwhistle's evidence was that she would discuss this with
Mr. Lewis. She clearly knew her strengths and what role she would
be suited for. It was less a matter of Mr. Lewis telling Ms.
Birtwhistle that she was to play a certain role.
[47] I did not get the same impression from
Mr. Wright, as he testified he would love to play a certain role.
In effect, if asked to perform that role by the Artistic
Director, he would accept. There was no sense that he could
demand such a role. This element of control really goes to the
dancer's marketability. The dancer in business on his or her
account has more say in what he or she does, and can push his or
her strengths for a particular role. The employee is more likely
to take what is given, with little or no opportunity to suggest
otherwise. Only Ms. Birtwhistle's evidence supports an
independent contractor on this aspect of control.
Who is responsible for the management of the Dancers
generally?
[48] There are three aspects of the overall
management of the Dancers which are relevant in assessing
control. First, who is responsible for training; second, who
controls managing the wear and tear on the Dancers' bodies;
and third, who controls outside engagements?
[49] The Royal Winnipeg Ballet provides
coaching at rehearsals for specific performances and also offers
an optional warm-up class. It does not offer fitness programs,
pilates lessons or other training-related classes, either during
the season, or in the off-season. The testimony of both Mr.
Wright's and Ms. Birtwhistle' was that this sort of
training, to keep the body in top condition necessary to perform
at a level worthy of The Royal Winnipeg Ballet, was left to the
Dancers themselves. In the off-season, according to Ms.
Birtwhistle, she also sought, either home or abroad, additional
technical training, quite apart from any instruction at The Royal
Winnipeg Ballet. The Dancers had to remain fit, flexible and
healthy. It was their obligation to do so.
[50] The impact on a dancer's body from
the hours and hours of training, rehearsing and performing must
be enormous. This was evident from Ms. Birtwhistle's
description of some of the expenses she herself had to cover -
bandages, lambswool, needles, Advil and podiatry. Mr. Wright also
mentioned back brace, hernia belt, chiropractor and massage,
above the $500 limit covered by the benefit plan, of which there
was considerable. Although ownership of the body does not imply
employee or independent contractor, the maintenance of the body
can influence the nature of the relationship. The Royal Winnipeg
Ballet recognized the importance of maintenance and did provide
benefits in that regard, including up to $500 for chiropractic
and massage services.
[51] With respect to outside engagements,
both Mr. Wright and Ms. Birtwhistle did some considerable work in
other capacities. It was their call what engagements they
accepted, whether performing as a guest artist with another
troupe, performing in a charitable fundraising show, doing
modelling work or engaging in film work. There were, however, two
provisos in connection with the outside work. One was that Mr.
Lewis, as artistic director, had to approve these engagements;
and, two, that the Dancers hold themselves out as being from The
Royal Winnipeg Ballet.[8] These are two significant restrictions.
[52] With respect to the outside
engagements, Mr. Wright and Ms. Birtwhistle may well have been
carrying on business on their own account. But, the two
restrictions from The Royal Winnipeg Ballet suggest that The
Royal Winnipeg Ballet was something more than just the
Dancers' major customer. It points to a level of control
indicative of a contract of service: you can work elsewhere when
we say you can and, in certain circumstances, it must be clear
you are connected to us. That is a heavy obligation to place on
an independent contractor.
[53] In summary of the control factor,
though difficult to assess in relation to a highly-skilled
professional, it is still appropriate and useful to do so. There
are few enough real distinguishing factors to rely upon when
dealing with a highly-skilled professional. The following
suggests the Dancers were in business for themselves:
(i) a dancer's artistic
talent is unique to the individual and not subject to
control;
(ii) with respect to Ms.
Birtwhistle only, the ability to discuss with the artistic
director roles appropriate for her;
(iii) responsibility for training to stay
in top physical condition;
(iv) responsibility for maintaining the
body, health wise;
(v) ability to work at other engagements;
and
(vi) ability to negotiate
concessions.
[54] The following suggest the Dancers were
employees:
(i) the determination by the
artistic director of what roles the Dancers would perform;
(ii) subordination to the
direction and coaching of technique by The Royal Winnipeg Ballet
artistic staff;
(iii) coordination by the artistic
staff of a performance, to ensure the dance meets the artistic
director's vision and artistic integrity;
(iv) the requirement for permission
from The Royal Winnipeg Ballet to work elsewhere;
(v) when working elsewhere, reference
is made to The Royal Winnipeg Ballet connection;
(vi) the provision of health benefits
by The Royal Winnipeg Ballet; and
(vii) the provision at no charge of warm-up
classes by The Royal Winnipeg Ballet.
[55] On balance, I find the element of
control weighted more to The Royal Winnipeg Ballet than the
Dancers.
Economic Factors
What financial risk is borne by the Dancers?
[56] Little, if any, according to the
Respondent: the Dancers received a salary based on seniority,
which is unrelated to time actually spent. But, argues the
Appellants, there is a significant risk of not being offered a
contract for the next season. Both counsel for the Appellants
relied on trial judge Legg's comments in Walden v. Danger
Bay Productions Ltd. et al.;[9] that:
There was a chance of profit under the arrangements with
ACTRA, the performers' organization, and by the terms of the
contracts between the actresses and the producer. There was no
apparent risk of loss in the contracts. Again, this perspective
is skewed towards looking at the matter from the standpoint of
the producer. From the performers standpoint, the particular part
is but one step in the career path. The degree of success
achieved by her in the role may be just as important or more so
to her career than to the series. Viewed in this way, there is
both a chance of profit and a risk of loss for the actress.
[57] The Dancers are subjected to little
financial risk under the terms of the one season contract for The
Royal Winnipeg Ballet. The Respondent is correct that the Dancers
get paid regardless of hours danced. From the Dancers'
perspective, there are, however, certain costs to be borne that
impact on their net remuneration. These are primarily in relation
to training and health care, in the broadest sense. There was
little evidence of the extent of such costs. The Dancers
presented no financial statements of a business. There was a
suggestion from Mr. Wright that chiropractic and massage
expenses might have been two or three times the amount covered by
The Royal Winnipeg Ballet. The other costs of private
instruction, fitness, bandages, Advil, etc. were likewise not
quantified, but there was no suggestion they could be so
substantial as to incur a business loss for the Dancers from The
Royal Winnipeg Ballet contract. The Royal Winnipeg Ballet covered
expenses in connection with all travel, benefits, vacation pay
and certain leaves.
[58] The more interesting position is that a
one-season contract with The Royal Winnipeg Ballet is just one
step along the professional dancer's career path, that might
significantly impact on the future of that career. That may well
be so: a season of rave reviews with The Royal Winnipeg Ballet
will create greater future possibilities; a season of less than
stellar performances could be career ending. But is not an
employee subject to the same risk? Whether the Dancer is in a
one-year job as an employee, or a one-year contract as a
person in business, the "career risk" is the same. This
appears to be one of those factors that are not variable
depending on the legal relationship, and consequently offer
little guidance in identifying the correct legal relationship. It
is tantamount to saying to a professional dancer - you have
chosen a risky career, therefore, you can only be an independent
contractor. I do not believe that necessarily follows.
What is the Dancer's chance of profit?
[59] The flip side of managing risk is
arranging affairs to maximize profits. Again, as with risk of
loss, the chance of profit in any particular one season contract
is limited. The remuneration is largely set by the seniority
categorization laid out in the Canada Ballet Agreement. Soloist 1
gets so much. Yes, the evidence was that the Dancers could
negotiate above scale; yet, the evidence was also that any such
negotiation resulted in little, if any, increase.
[60] The real chance of profit arises from
getting better, becoming the star, as Ms. Birtwhistle put it. But
such stardom, in Ms. Birtwhistle's case, does not appear to
have translated into any greater profits over scale with The
Royal Winnipeg Ballet. It may lead to lucrative guest
appearances, film work or special engagements, but if The Royal
Winnipeg Ballet is considered the Dancers' major client,
taking the perspective of the independent contractor, there was
no evidence that the major client itself would be the source of
greater profits. The Royal Winnipeg Ballet, as a major client,
might afford the Dancer the stage upon which to enhance a
reputation that might yield more profitable results elsewhere.
Such is the performing arts. But that form of chance of profit is
not unique to an independent contractor.
What degree of responsibility did the Dancers have for
management and investment?
[61] With respect to management of an
independent business, there is little evidence of any such
involvement, certainly in connection with the arrangement with
The Royal Winnipeg Ballet. Management of non-Royal Winnipeg
Ballet activities might suggest a dancer acted as an independent
contractor vis-à-vis those activities, but they are not
determinative of the nature of The Royal Winnipeg Ballet
relationship.
[62] The investment of time by a dancer in
pursuing a professional dance career is exceptional. As already
indicated, there is also an economic investment in training and
maintenance. While these are significant, they are not the form
of capital investment that distinguishes an employee from an
independent contractor.
Who provides the Dancers' equipment, the tools of the
trade?
[63] Having removed from the analysis the
provision of the Dancer's body as "equipment" for
reasons provided earlier, this economic factor becomes of
marginal assistance. Mr. Wright and Ms. Birtwhistle both
testified as to the variety of incidentals they provided at their
own expense; fitness wear, rehearsal wear, back brace, hernia
belt, makeup, bandages, needles and ribbons. With respect to a
dancer's most fundamental piece of equipment, shoes, the
obligation to provide was shared. Both The Royal Winnipeg Ballet
and the Dancers provided shoes. With respect to the shoes
provided by The Royal Winnipeg Ballet, it was The Royal Winnipeg
Ballet, according to the collective agreement, that determined
when shoes were sufficiently worn to require replacement. As well
as shoes, The Royal Winnipeg Ballet provided a variety of other
equipment, including ribbons, elastics, tights, wigs, hairpins,
shoe bags and T-shirts.
[64] In summary of the economic factors, the
following points to an independent contractor arrangement with
The Royal Winnipeg Ballet:
(i) the Dancers incurred
expenses for training, maintenance and incidental
"equipment";
(ii) the Dancers could negotiate
above scale;
(iii) contracts were only obtained on a
one-season basis; and
(iv) financial risk, viewed as a
career risk beyond the confines of one-season contract, was
susceptible to being managed by an experienced dancer.
[65] The following suggests the Dancers were
employees:
(i) the remuneration received by
the Dancers is primarily set by a seniority scale in the
collective agreement: there was realistically no risk of
loss;
(ii) there was little movement
from such scale;
(iii) the expenses covered by the
Dancers appeared low compared to expenses covered by The Royal
Winnipeg Ballet;[10]
(iv) a "career risk", in not
obtaining a new contract, exists regardless of the nature of the
relationship;
(v) no opportunity for maximizing
profits within The Royal Winnipeg Ballet contract;
(vi) the Dancers displayed no
management responsibilities of an independent business
vis-à-vis The Royal Winnipeg Ballet work;
(vii) the Dancers invested little capital in
a "business";
(viii) the determination of replacement of shoes
was The Royal Winnipeg Ballet's economic decision; and
(ix) The Royal Winnipeg Ballet
provided equipment.
On balance, I weigh the economic factors to support an
employee relationship.
[66] I turn now to the other factor that the
Parties suggest might distinguish employees from independent
contractors; that is, the extensive collective agreement between
The Royal Winnipeg Ballet and CAEA, taking into account the
impact of the Status of the Artist Act, supra.[11]
Canadian Ballet Agreement
[67] The existence of the Canadian Ballet
Agreement, in and of itself, is not indicative of either an
employment or independent contractor arrangement. Although the
Respondent suggests the Agreement contains "hallmarks of
employment", these are not factors which, in the context of
an artists' collective agreement, are persuasive. This is
because the agreement itself arises from the rights of artists
entrenched in the Status of the Artist Act. Specifically,
the following sections are of interest:
3.
Canada's policy on the professional status of the artist, as
implemented by the Minister of Communications, is based on the
following rights:
(a) the right
of artists and producers to freedom of association and
expression;
(b) the right
of associations representing artists to be recognized in law and
to promote the professional and socio-economic interests of their
members; and
...
5. In this
Part,
"artist" means an independent contractor described in
paragraph 6(2)(b);
"scale agreement" means an agreement in writing between
a producer and an artists' association respecting minimum
terms and conditions for the provision of artists' services
and other related matters;
6(2) This Part applies
...
(b) to
independent contractors determined to be professionals according
to the criteria set out in paragraph 18(b), and who
...
(ii) perform, sing,
recite, direct or act, in any manner, in a musical, literary or
dramatic work, or in a circus, variety, mime or puppet show,
or
...
9(3) This Part does not apply,
in respect of work undertaken in the course of employment, to
...
(b)
employees, within the meaning of Part I of the Canada Labour
Code, including those determined to be employees by the
Canada Labour Relations Board, and members of a bargaining unit
that is certified by that Board.
[68] The Government of Canada has endorsed
the entering into of the very type of agreement that is before
me. Indeed, it encourages the co-existence of a collective
professional artists' agreement and independent contractors.
This does not mean that the legislation determines whether an
artist is an employee or an independent contractor, but it does
suggest that artists, as independent contractors, can address
economic issues collectively. They consequently should not be
labelled "employees" simply because such issues might
appear to be "hallmarks" of employment.
[69] The negotiation of overtime, vacation
pay, weekly indemnity, extended health, long-term disability,
dental insurance, pregnancy leave, paternity leave and
bereavement leave are presumably some of the socio-economic
interests contemplated by the Status of the Artist Act to
be promoted by CAEA on behalf of its members. In such light, I do
not consider these negotiated benefits as hallmarks of
employment. They do not represent a surrender by an artist of his
or her status as an independent contractor. Neither, however, do
they represent any affirmation of the status of an independent
contractor. They are neutral factors.
[70] Can every term in the Canadian Ballet
Agreement be neutered by such an approach? No. I am referring
only to those terms that are touted as being "hallmarks of
employment"; that is, terms that might commonly be found in
an employment agreement, yet do not go to the real crux of the
difference between the professional artist employee and the
professional artist in business on his or her own account.
[71] The Appellants suggest that there are
terms in the Canadian Ballet Agreement that simply do not belong
in an employment arrangement. They identified the following terms
as being inconsistent with an employment agreement:
(i) individual negotiation of
better terms (Article 10);
(ii) the right of The Royal
Winnipeg Ballet to assign the Dancers' contract (Article
8);
(iii) the requirement that The Royal
Winnipeg Ballet post a bond for contractual obligations (Article
15);
(iv) the Dancer licensing the right to
his or her image to The Royal Winnipeg Ballet for limited
purposes (Article 33);
(v) the ability to accept other
engagements (Article 9); and
(vi) speaking or singing roles
requiring separate compensation (Article 24).
I wish to examine each of these more closely.
(i) Negotiation of better
terms
[72] A dancer does not knock on The Royal
Winnipeg Ballet's door seeking work with a clean slate
between them. The dancer must be a member of CAEA and the dancer
will be governed by the pre-existing Canadian Ballet Agreement.
The terms and conditions are already in place. The Canadian
Ballet Agreement stipulates that the terms and conditions are
minimum and the dancer may negotiate above scale. The Appellants
suggest that this is not indicative of an employment arrangement.
Why not? Can an employee not negotiate for salary increases? This
is a good example of the nub of the problem in attempting to
characterize a working arrangement in the performing arts field.
The worker, dancer in this case, has an association negotiate
almost all of the terms of the worker's arrangement. The
association does so under the auspices of the Status of the
Artist Act, on an understanding that the dancers are
independent contractors. Yet, the protections it seeks to obtain
for the workers are the same protections an employee would want
in an employment arrangement. Establishing a base or minimum
level of remuneration, with flexibility to seek above-scale pay,
is not unique to the independent contractor. Room for
manoeuvrability within a contract (in reality quite limited) is
just as consistent with an employment arrangement.
(ii) Right to assign the
contract
[73] This provision is drafted in the
negative; that is, The Royal Winnipeg Ballet cannot assign the
artist's contract without the consent of the artist and CAEA.
There was no evidence this provision had ever come into play.
There was also no evidence as to what The Royal Winnipeg Ballet
or the Dancers took this provision to mean. The engagement
contract between Tara Birtwhistle and The Royal Winnipeg Ballet
is a standard form with just three areas filled in specifically
for Ms. Birtwhistle: one, that she is the principal; two, the
amount of her remuneration; three, the length of the contract
being from early August to the end of June. She will remain in
that position for that pay, for that period, unless both parties
agree otherwise. The fact the parties can agree to alter the
arrangement, by assignment or otherwise, is not conclusive that
the arrangement must therefore be one of an independent
contractor nature. Two parties to an agreement, whatever the
nature of that agreement, can agree to change the terms.
(iii) Posting a bond
[74] Read in context, this obligation to
provide security is to ensure the Dancers are not stranded away
from Winnipeg without the resources to return home. Why is this a
term that could only be negotiated on behalf of independent
contractors? Whether an artists' association or a
workers' union, this is an appropriate condition to impose
upon a payor.
(iv) Dancers licensing their
image
[75] If a dancer's image is used in a
photo of three dancers or less, the dancer must approve. The
Appellants imply that an employee's consent need not be
obtained. No law was cited to that effect.
(v) Ability to accept other
engagements
[76] As has already been discussed, this
ability is controlled by The Royal Winnipeg Ballet, both as to
timing and also as to the requirement for mention of The Royal
Winnipeg Ballet in such other engagements.
(vi) Speaking or singing
roles
[77] As with many other terms, this is not
inconsistent with either an employee or independent contractor
arrangement.
[78] The existence of the Canadian Ballet
Agreement is not determinative for reasons given earlier. Having
reviewed the terms that the Appellants maintain are inconsistent
with an employment arrangement, I find they are not inconsistent.
They do not favour one relationship over the other. They are
negotiated terms that would be appropriate in either
relationship.
[79] Having determined that neither the
hallmarks of employment, nor terms alleged to be inconsistent
with employment, are indicative of one relationship or the other,
what can be gleaned from the Canadian Ballet Agreement to assist
in the analysis? I would suggest that there are two items of
significance from the Agreement, which have already been touched
upon in reviewing the control and economic factors:
(i) ability to work at other
engagements though with restrictions from The Royal Winnipeg
Ballet; and
(ii) a remuneration scale based on
seniority.
These contractual terms confirm a level of control by The
Royal Winnipeg Ballet with little risk of loss or chance of
profit by the Dancers. The review of the contract, the
"other factor" to be considered, has confirmed my
weighing of the control and economic factors in favour of an
employment arrangement.
Conclusion
[80] The traditional control and economic
factors can be applied to the performing arts sector to determine
the true nature of the overall relationship. But that nature
should be determined from the Dancers' perspective, as it is
their status at issue. Were the Dancers in the business of
dancing; were they in that business on their own account; and was
The Royal Winnipeg Ballet their major client in that business?
Looking at the arrangement as a whole, I find the Dancers worked
subordinately, more so than collaboratively, with The Royal
Winnipeg Ballet. I distinguish this case in that respect from
Les Productions Petit Bonhomme Inc. v. M.N.R.[12] I further find
that, in the work arrangement with The Royal Winnipeg Ballet,
there was no risk of loss and little chance of profit. It
provided a steady income which allowed the Dancers to pursue,
only with The Royal Winnipeg Ballet's permission, other
perhaps more lucrative engagements. Those other engagements might
well constitute the Dancer's business, but the engagement
with The Royal Winnipeg Ballet was a contract of service - it was
employment.
[81] It has become apparent to me in
reaching this conclusion that the line of demarcation between
employee and independent contractor in the performing arts is
fuzzy at best, especially with a principal, such as Mr.
Birtwhistle, but a line must be drawn. As mentioned at the
outset, the Respondent never suggested a performing artist could
only be an employee; nor did the Appellants suggest the
performing artist could only be an independent contractor. So,
indeed, there must be a line between the two relationships. The
line may have been easier to draw had I been dealing with members
of the corps ballet. I also recognize that there may be a special
guest artist engaged for just one performance, albeit governed by
the same Canadian Ballet Agreement, who may work collaboratively
more so than subordinately and who may negotiate considerably
above scale, or negotiate a cut of the house proceeds. I would
have no difficulty finding such an individual an independent
contractor. But that is not the situation before me. Before me
are three Dancers with full season contracts covering several
performances, subject to a variety of controls by The Royal
Winnipeg Ballet throughout the term of the engagement, with no
financial risk normally associated with a business, and little
responsibility for investment and management vis-à-vis The
Royal Winnipeg Ballet contract.
[82] Having found on balance the arrangement
is one of employment it is unnecessary to review the intention of
the parties, as there is no tie to be broken.[13]
[83] I am mindful of the economic impact
resulting from this decision. It is a telling commentary that
support for the arts is such that contributions to employment
insurance to provide artists the safety net available to all
employees, is considered a factor in the economic viability of
performing arts companies. The answer, however, is not to define
the Dancers as something, which in this case, they are not.
[84] The appeals are dismissed.
Signed at Ottawa, Canada, this 3rd day of June, 2004.
Miller J.
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