Date: 20011116
Dockets:
2000-5115-EI,
2000-5116-CPP
BETWEEN:
YOUNG UNITED
CHURCH,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent,
AND
2000-4914-EI,
2000-4916-CPP
DON GRICE,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent,
and
YOUNG UNITED
CHURCH,
Intervenor.
Reasonsfor
Judgment
Rowe,
D.J.T.C.C.
[1]
The appellant Young United Church (Young) appeals from a decision
issued by the Minister of National Revenue (the
"Minister") on August 1, 2000 pursuant to the relevant
provisions of the Employment Insurance Act (the
"Act") wherein the Minister confirmed an
assessment dated January 19, 2000 - with respect to certain
persons named in Appendix A, attached to said decision - on
the basis they had been engaged in both insurable and pensionable
service with Young for the period January 1 to December 31, 1998.
The appellant, Don Grice - a worker named in said decision - was
also the recipient of a decision - also dated August 1,
2000 - finding him to have been engaged in insurable and
pensionable service with Young during said period. The agent for
Young, Grice - appearing on his own behalf - and counsel
for the respondent agreed both appeals would be heard on common
evidence. In addition, the parties agreed the relevant result in
the within appeals would apply to the separate appeals -
2000-5116(CPP) filed by Young - and 2000-4916(CPP) filed by
Grice - in response to the relevant decision issued by the
Minister pursuant to the Canada Pension Plan. (the
"Plan").
[2]
The Reply to the Notice of Appeal (Reply) set forth certain
individuals - named in the assessment issued to Young - as
having performed specific functions and the result was to create
categories of workers, although all were found to have been
employed - by Young - pursuant to a contract of
service. Certain workers - named in paragraph 5 of the
Reply - were described as "the musicians". Another
worker - Richard Borbridge - was identified as
"the student"; Marco Vicente and Margaret Koop were
described as "the Section Leader" and "the Choir
Director", respectively. The appellant - Don Grice
- was referred to as "the Organist".
[3]
Margaret Koop testified she is a musician and has resided in
Winnipeg, Manitoba since 1998. On December 7, 1997 she entered
into a written contract with Young wherein she agreed to provide
her services as Choir Director. The term of the contract was for
the period from September 1, 1997 to June 30, 1998 and she agreed
to provide her services in return to a fee in the sum of
$5,225.00 to be paid in 10 monthly installments of $525.50. Koop
stated she was a professional musician and earned revenue as a
result of providing services to other individuals or entities
pursuant to contractual arrangements. In terms of her income in
1998 - derived exclusively from her occupation as a musician -
Koop estimated her contract with Young was the source of between
18% and 22% of the total revenue and the provision of those
services had occupied 25% of her working time. As part of her
duties as Choir Director, she hired - as her assistants - a
Section Leader and a junior Choir Director. She recruited persons
that might be suitable for this type of work, conducted the
requisite interviews and then hired workers and established their
remuneration. She also had authority to discharge workers
fulfilling these roles. The workers were paid in the form of
cheques issued by Young, as requisitioned by Koop. Her own
services were not supervised by anyone at Young and her operating
budget was established on an annual basis following a meeting
with the Chair of the Personnel Committee. The amount of
remuneration established in the contract was the subject of
negotiation as - during the course of her career -
she had provided a similar service to other churches. Koop stated
that she is a choral conductor and utilizes her hands, face, body
and voice as instruments or tools. In addition, she owns a piano,
keyboard, metronome, photocopier, fax, a computer with specific
software, as well as the usual equipment and supplies within an
office located in her own residence. Koop stated she was
responsible for the cost of acquisition and maintenance of these
items. In order to fulfill her contract with Young, Koop stated
she devoted 15-20 hours per week - depending on the season
- to that task but she decided the amount of time to be spent and
arranged her own schedule. Major events had to be the subject of
advance planning and could occupy 5 hours of her time in the
weeks leading up to the performance. The balance of working time
- expended in the course of carrying out her duties as Choir
Director - was devoted to research - up to 1.5 hours - and
she had to undertake appropriate exercises to maintain her voice.
She usually studied musical scores for 5.0 hours and dedicated
another one to three hours per week to consultations with other
professionals. The supervision of the musicians and the conduct
of rehearsals with the choir and soloists occupied three hours.
She also practiced conducting in front of a mirror, paying
particular attention to difficult portions of the score. Each
performance of the choir lasted only 15 minutes and, if she
performed at a Sunday service, that would occupy another 15
minutes. All the planning for performances by the choir were done
at her home office using her own equipment and materials. She
owned numerous choral scores as part of her own specialized
library. Although she has a studio in her own home which is used
for various purposes, training for the choir was undertaken at
the Young church premises in accordance with her own decision as
to the time and duration of the rehearsal and the manner in which
it would be carried out. Some consultations with other music
professionals were held at her own home and she determined the
length of the performance in consultation with the Young Minister
and the Organist. The actual performances of the choir were held
during the worship service in the church. During the period from
September 1, 1997 to the beginning of June, 1998, she provided
her services as Choir Director every Sunday except for two weeks
following Christmas and New Year but - during June - the choir
did not perform every week. Up to and including Christmas day,
there would be several performances held at Young. The same
procedure was followed for the Easter celebrations. Koop stated
that her sources of income - apart from Young - were
derived from performing as a singer and from conducting another
choir, although - in 1998 - her revenue from personal
performances was not particularly significant. Koop stated she
has been involved in the pursuit of her specialized profession
for 30 years and - in her opinion - must strive to maintain
a high standard of work since the quality of the sound produced
by a choir is important in order to be fully appreciated by an
audience and she is aware that a large part of her work is
derived from word of mouth recommendations.
[4]
In cross-examination by counsel for the respondent, Margaret Koop
stated she was the only Choir Director at Young during the
relevant period. Although not required to do so pursuant to her
contract, she chose to develop the children's music
program. She was referred to the contract dated December 7, 1997
- Exhibit R-1 - and agreed there was a 30-day
cancellation clause. She stated she did not advise the Young
Minister if she were to be absent from a particular Sunday
service and, in the event she could not find a replacement to
conduct a rehearsal, would merely cancel it and reschedule. Koop
agreed her duties were set out in clause 7 of her contract and
had been included therein as a consequence of her suggestions
since she was experienced in that field. At paragraph 3 of said
contract, there was reference to an entitlement by Koop -
as Choir Director - to two weeks sick leave but it was
expressed therein as "sick leave" and - pursuant
to paragraph 4 - she was required to pay any qualified
substitute if she were to be absent on a particular Sunday.
However, the contract - Exhibit R-1 - did not stipulate any set
number of Sunday performances within the period from
September 1, 1997 to June 30,1998, and Koop does not recall
having signed another contract in relation to her continued
provision of services as Choir Director in subsequent years. Koop
stated no one at Young ever gave her any specific instructions or
directions to perform any special piece of music. She was
required to find - and remunerate - any substitutes
retained to conduct rehearsals. On occasion, she chose to hire a
replacement because she was either performing services for
another client or on vacation.
[5]
Don Grice testified he resides in Winnipeg and is a professional
organist. He holds a Bachelor of Music and is an Associate of
Royal Canadian College of Organists. During 1998, he was employed
at a music store in Winnipeg - 40 hours a week - but also
provided his services - as an organist - to Young. In
the course of preparing for the Sunday service, he would
participate in the selection of appropriate hymns - in
consultation with the Young Minister and the Choir Director
(Margaret Koop) - and plan his performance, a process requiring
two hours of preparation followed by 4 hours of practice and
rehearsal. He chose all other music to be used as preludes,
offertory hymns and closing pieces. Grice stated the bulk of his
time was spent on organ repertoire but choir rehearsal still
occupied between one and two hours per week even though the
Sunday worship service lasted one hour. In addition, he was
involved in upgrading his own skills as an organist. He was
responsible for the maintenance of the organ and accompanied the
choir at rehearsals and during performances, including those by
any soloist. He chose the technicians to service the organ and
piano, negotiated the fee to be paid to the local piano tuner and
handled the administration of the payment - by Young
- to the company from Québec for servicing the
29-stop pipe organ which had been manufactured there in 1993.
Grice stated he owned several hundred books of music specifically
written for the organ and accessed them in relation to providing
his services to Young. He also utilized his reference library in
order to write an explanation of a certain piece of music for
inclusion in the church newsletter. Since playing organ music
involves both hands and both feet, he was required to make
decisions in advance concerning the use of certain stops and
these were recorded on the score. The organ had the capacity to
store - into memory - additions of registers and stops so
they could be recalled during performance of a piece. On
occasion, Grice was responsible for finding suitable organ music
to accompany certain soloists who may have been performing on
various instruments. Grice stated he was solely responsible for
making all decisions concerning preparation, study, training and
practicing - not only as to time and duration - but also
pertaining to methods employed. He is accustomed to performing on
various organs located in different churches in the city of
Winnipeg and also used one or more of these instruments in order
to practice. If the particular choice of music did not have a
component requiring the use of a pedal, he was able to practice
on a piano. All access to the pipe organ at Young was controlled
by him because it is a large, expensive and complex system
requiring special knowledge in order to perform on it. At his
home, he had a studio and office and this space was used for
planning and storing books and materials. Some reference material
taken to Young - by Grice - was used and stored there during 1998
but all items were owned by him. In 1998, he attended a
convention in Denver, Colorado and also traveled to Chicago,
Illinois for private lessons and paid the cost of these trips
even though the experience and knowledge acquired pertained to
his work as an organist at Young. Grice stated he considered his
tools to be composed of his special skills, extensive organ
library, metronome, computer and software for cataloguing music,
office supplies and special shoes - with very thin soles
- for playing the organ. During 1998, he had contracts with
other churches and estimated his revenue - from Young - amounted
to approximately 40% of his income derived from working as a
professional organist but - overall - amounted to
only 15% of his total income. Apart from working 40 hours a week
at the music store, Grice worked an additional 25 hours per week
as a professional organist. He performed at other churches in
Winnipeg for weddings, funerals and special concerts during the
week. In the event a replacement was required for the Sunday
service at Young, Grice stated he would locate a qualified person
and was responsible for payment to that individual. However, that
task was not particularly onerous since he was acquainted with
most of the professional organists in Winnipeg. When he was able
to use parts of the same repertoire at more than one function, it
would reduce his practice time. He noted that, as a professional
organist, he obtains work as a consequence of his reputation
throughout the community and his popularity is based on the
response - by the public - to his performances. As a result, he
is acutely aware that each time he plays, his reputation is at
stake. Therefore, adequate preparation is extremely important
since the organ is a powerful - but unforgiving - instrument in
the sense that errors will be very obvious to the listener. Grice
stated he had already begun his musical career as a student of
piano but later on decided to study the organ while pursuing his
degree at university.
[6]
In cross-examination by counsel for the respondent, the appellant
- Don Grice - identified the contract -
Exhibit R-2 - that he had signed on December 8, 1998. In
return for providing his services - as a professional
organist - to Young for the 12-month period from September 1,
1997 to August 31, 1998, Grice agreed to accept a fee in the sum
of $5,255.00 to be paid in 12 monthly instalments. He agreed the
hymns for the Sunday worship service were chosen in consultation
with the Young Minister and Margaret Koop. Pursuant to paragraph
9 of the contract, details pertaining to the provision of his
services at most weddings and funerals to be held at Young were
set forth including the establishment of a minimum fee in the sum
of $85.00 which the users of the service paid directly to Grice.
In addition, Young agreed no other organist could perform at
Young without the approval of Grice. Grice pointed out that
- according to paragraph 5 of the contract - he was
obliged to ensure that any replacement was suitably qualified and
payment to that person was his responsibility. He was entitled to
a two-week period described as "sick leave" without the
loss of remuneration. At paragraph 3, the contract stated,
"As Young currently participates in a process of sharing
summer services with another local congregation, it is assumed
the Organist will take holidays during the month of Young's
summer break". Grice stated that he was considered -
by virtue of paragraph 6 of the contract - to be an ex
officio member of the Worship and Music Committee but he was
not a member of the congregation at Young. Grice stated the
weddings were arranged through the office of the Young Minister
even though he was paid directly by the recipient of the
service.
[7]
Linda Hodges-Murray testified she was ordained as a Minister of
the United Church of Canada - in 1978 - and has been employed by
Young since July, 1998. At Young, she performs a variety of
duties and responsibilities including the management of a working
relationship between Young, Hope Mennonite church and other
groups for the purpose of sharing a common premise within a
building located in the inner city. She explained there are 6
partners in the building, including a subsidiary ministry of
Young, a youth outreach program operated through United Way, a
day nursery and a housing project for severely ill persons. She
stated the worship service on each Sunday is one hour in duration
and there is a one to three hour period of fellowship following
the conclusion of worship. Hodges-Murray stated she worked
approximately 50 hours per week, of which 10 hours are
devoted to the Sunday morning worship service. About 20 hours are
dedicated to pastoral care including home and hospital visits and
grief and crisis counseling. Young employs a full-time office
administrator, two full-time outreach workers, one full-time and
one part-time custodian, a part-time building manager, a
full-time director of the nursery and between 8 and 10 nursery
workers. In addition, Young receives assistance from a corps of
nearly 100 volunteers who attend at Young - during the course of
any given week - in order to help deliver a variety of
programs to the designated users. Young also operates an active
Sunday school program, adult bible study groups and includes
various committees within its administrative structure. The
complex shared by Young with the other groups also has additional
space that is leased to other organizations.
[8]
In cross-examination by counsel for the respondent, Linda
Hodges-Murray stated she was not involved in any discussions
between Young and Grice and/or Koop. She agreed the provision of
music was an important and significant component of the worship
service but it occupied less than 50% of the total time allotted
to that period. She stated she had operated on the basis that the
Organist (Grice) and the Choir Director (Koop) would either be
present when required or would have provided for a suitable
replacement as she was not qualified to undertake that task.
[9]
Bruce Gammon, the agent for the appellant submitted the
facts in the within appeal were unique to the particular nature
of the work performed by the workers and pointed out that the
tools used were specific to the task since Koop and Grice were
both highly-qualified professional musicians generating revenue
by providing their talent to various clients within the course of
a business. In that sense, the agent pointed to the relatively
small percentage of overall revenue derived by both of them as a
result of their working relationship with Young. He also
submitted the evidence clearly demonstrated their services were
not integral to the multi-faceted operations of Young and they
had conducted themselves in a manner consistent with the wording
of their individual contract - with Young - which clearly spelled
out - both in wording and intent - that they were to
be independent contractors.
[10]
Counsel for the respondent submitted the evidence supported the
view taken by the Minister that the provision of organ music to
the worship service was integral and the primary tool - the
massive pipe-organ - was provided by Young. Counsel pointed
out that no evidence had been presented by Young - or Grice
- to demonstrate the Minister had been incorrect in assessing the
other worker(s) within the categories earlier described as
"the student", "the section leader" and/or
"the musicians" and, as a result, the decision by the
Minister to confirm the earlier assessments in relation to those
persons must remain in force.
[11]
In Wiebe Door Services Ltd. v. M.N.R.,
[1986] 2 C.T.C. 200, the Federal Court of Appeal approved
subjecting the evidence to the following tests, with the
admonition that the tests be regarded as a four-in-one test with
emphasis on the combined force of the whole scheme of operations.
The tests are:
1. The Control Test
2. Ownership of Tools
3. Chance of Profit and Risk of Loss
4. The integration test
Control:
[12]
There was very little control exercised - by Young - in
relation to the services provided by either Grice or Koop. They
were both professional musicians and were further specialized
within that discipline; Koop was an experienced director of
choirs and Grice was a professional organist. Each of them was
able to obtain a qualified substitute - if and when deemed
necessary - and, because they had the specific ability to
perform that task, were unfettered in that process. However, they
were responsible for the remuneration of any person providing
service on their behalf. Both Koop and Grice consulted
Hodges-Murray or - prior to her arrival at Young -
discussed the choice of hymns with the previous Young Minister in
charge of the Sunday worship service. However, all the other
music performed during the course of the service was chosen - and
performed - by Grice in accordance with his professional
judgment. The rehearsals by the choir and soloists were arranged
for by Koop and conducted as she saw fit. Much of the planning
for the performances by the choir was carried out by Koop from
her own in-home office. The duties of each were set out in the
relevant contract and - in my view - were designed to
accomplish certain specified results without recitation of
particular methods to be utilized in achieving those goals. When
a professional, possessing specialized skills, is hired to
provide a service, often the payor has no means by which to
actually supervise or control the manner in which the work is
done but still remains able to dictate when and where and during
what time-frame the work will be performed, perhaps within the
framework of a workplace policy. No such indicia of control was
present in the within appeals as it applied to either Koop or
Grice and any matters tending toward that interpretation were
more attributable to participation in planning - by consensus -
rather than from responding to directions issued by a master.
Obviously, if one contracts with another to provide music or
flowers or books for a Sunday worship service, then it is vital
to the performance of the agreement that the relevant item or
service is actually provided and delivered - on Sunday - during
the service.
Tools:
[13]
Margaret Koop - the Choir Director - utilized her hands,
body and voice as tools in order to carry out her work. She also
owned a substantial amount of equipment and an elaborate
collection of choral scores as part of a body of reference
material and she operated from an office - equipped with a
studio - in her own home. Of course, the premises were provided
by Young in order that rehearsals could be held and - usually - a
church service is held inside a church and a choir sings from a
location designated within that space.
[14]
Don Grice was an organist and played the large pipe organ
installed inside the church. Unlike bagpipes, it tends not to be
portable and Grice - when providing his services to Young
for the one-hour-per-week worship service - certainly used
that tool. However, his evidence was that he used his own
equipment and tools - including a computer equipped with
special software - at his own in-home office in order to prepare
for the delivery of the service. In addition, he provided -
to Young - his own scores and reference material
- pertaining to organ music. Young - pursuant to
the contract - in effect, designated Grice as the person
responsible for controlling access to the organ and for its
maintenance and repair. In return, he was granted permission to
use both the organ and the piano for practice and -
importantly - for instruction at such times when it would
not adversely affect other church activities.
Chance of profit
and risk of loss:
[15]
Margaret Koop maintained an office and purchased supplies and
musical scores. She entered into a contractual arrangement with
Young and agreed to provide the services attributable to a Choir
Director after negotiating the terms thereof, including the fee.
She testified she had - on occasion - made the choice to
hire and pay a substitute to carry out some of her duties at
Young because she had been performing another service for another
client at the time. That is the sort of choice made - regularly -
by persons providing professional services - on their own
account - in the course of a business or practice. As a
professional of nearly 30 years standing, she had different
clients and derived the bulk of her income from other sources
since only 20% of her revenue flowed from the contract with
Young. She was required to juggle her commitments in order to
carry out the terms of the agreement and would be required to
ensure that expenses relating to the production of work were
reasonably in balance as against revenue to be gained.
[16]
Don Grice also maintained an office and purchased supplies and
specialized computer software and related equipment including
special shoes. He worked - fulltime - in a music store and
estimated only 15% of his annual income was obtained from
providing his services to Young. In the course of his profession
as an organist, he played for weddings, funerals, concerts and at
other functions held at Young and/or at other facilities in
Winnipeg. Again, he negotiated the fee he wanted to be paid in
return for providing the services described in the contract
- Exhibit R-2. In so doing, he obviously weighed the
requirement to dedicate a sufficient amount of working time to
Young against the amount of remuneration to be gained. He paid
for his own trips to a convention and for private lessons even
though the instruction related directly to the performance of his
services to Young.
Integration:
[17]
In the case of David T. McDonald Company Ltd. v. M.N.R.,
92 DTC 1917, Mogan T.C.C.J. heard an appeal under the Income
Tax Act in which the status of the appellant became an
important issue. The question arose whether the taxpayer was an
employee or an independent contractor while carrying out his
duties as the sole and exclusive sales and marketing manager for
a footwear company. Judge Mogan found the taxpayer kept his
own time schedule and attended at the office of the footwear
company for a few hours two to four days per week when he was not
spending his winters in Florida. Judge Mogan also found the
taxpayer did not participate in any medical or pension plan and
was not subject to corporate policy concerning retirement age. At
page 1922 and following of his judgment, Judge Mogan stated:
"Counsel for both parties relied on the decision of the
Federal Court of Appeal in Wiebe Door Services Ltd. v.
M.N.R., 87 DTC 5025 which laid down certain guidelines to
determine whether an individual is an employee or an independent
contractor. MacGuigan J. writing for the Court held at page
5029 that Lord Wright's test in the Montreal
Locomotive Works case (control, ownership of tools, chance of
profit, risk of loss) was not really a fourfold test but a
four-in-one test requiring an overview of the combined force of
the whole scheme of operations. It is useful to apply the
four-in-one test to Mr. McDonald in 1985 and 1986 as if the
Appellant corporation did not exist. He was not under the control
of any senior officer of Status Canada. His tools were his
experience, knowledge and goodwill in the shoe business in
Canada. He had a chance of profit in the sense that he shared the
fortunes of Status Canada through his commission and profit
sharing arrangement as set out in paragraph 5 of the agreement.
Also, the Appellant could earn a profit from the wholesale
business it carried on with small retailers. Although Mr.
McDonald did not have a risk of loss in a direct sense, the
agreement (paragraph 6) was subject to termination on 30
days' notice if gross sales were less than $1,000,000 in any
one year. It is significant to me that this condition for
termination in paragraph 6 was dependent on the overall
performance of Status Canada (its gross annual sales) and not
dependent on the personal performance of Mr. McDonald like a
commission salesman with his own minimum sales quota for each
year. Even if he had no risk of loss, the concept of a
four-in-one test requiring an overview of the whole scheme means
that any one of the four indicators may point toward employment
but, considering the whole relationship between the Appellant and
Status Canada, the four indicators taken together may point more
toward an independent contractor and less toward employment.
In Wiebe Door, MacGuigan, J. cited with approval at page
5030 the Market Investigations case in which the question
is asked: "Is the person who has engaged himself to perform
these services performing them as a person in business on his own
account?" To answer that question, one must consider whether
the person has the capacity to engage in the particular business
on his own account. If he has experience, knowledge and goodwill
in the business, it is easier to conclude that he has the
capacity to engage in the business on his own account and that he
is not simply an incorporated employee. This is particularly true
when the person has no prior employment connection with the party
who benefits from his services. But if he has no experience,
knowledge or goodwill in the business and offers only personal
skills not related to the business, it is more difficult to
conclude that he has the capacity to engage in the business on
his own account; and it would probably be more reasonable to
regard him as an employee of the party who benefits from his
services.
[18]
Margaret Koop - as discussed earlier - was a
professional carrying on business within her particular
discipline as a musician and was not integrated into the
extensive operations of Young as described by Reverend
Hodges-Murray. The work performed by Koop - while important to
the enjoyment of regularly-scheduled worship services and special
events such as Thanksgiving, Christmas celebrations and Easter
- constituted less than 50% of the time designated for the
Sunday service and the time devoted to the conduct of that period
of worship occupied only one-fifth of the total hours worked each
week by Hodges-Murray. Young was a partner in a building complex
and a landlord to other groups. It operated a day nursery and
provided other services in conjunction with its partners. The
services of Koop were only an accessory to the overall functions
of Young as a multi-faceted organization. Koop was in the
business of providing choral direction and related services to
various persons and Young utilized her services to enhance its
own worship services but it was not engaged in that business,
per se.
[19]
Don Grice was also a professional musician who chose to earn
revenue - in addition to his full-time employment at a music
store - by holding himself out as a specialized performer.
He chose to provide his services to Young for a set period at a
negotiated fee. He had other sources of income and organized his
activities accordingly. He regarded himself as someone carrying
on business - on his own account - as a professional
musician. Young relied on his own expertise not only when
performing in church but also when undertaking responsibility for
controlling use of the organ by others and in making arrangements
concerning repair and maintenance of that instrument. However, it
must be noted that the provision of organ music to parishioners
was not the principal business of Young.
[20]
In the case of Minister of National Revenue
v. Emily Standing, [1992] F.C.J. No. 890 Stone, J.A.
stated:
...There is no foundation in the case law for
the proposition that such a relationship may exist merely because
the parties choose to describe it to be so regardless of the
surrounding circumstances when weighed in the light of the Wiebe
Door test ...
[21]
In the within appeals, both Grice and Koop conducted themselves
in accordance with the terms of their contracts. There was no
substantial departure from what was written in the agreement and
what was actually done, as is often the case in this type of
appeal. Throughout, the parties dealt with each other in a manner
consistent with dealings between a payor and an independent
contractor providing service within the context of a
business.
[22]
As pointed out by counsel for the respondent, there was no
evidence produced by either appellant which was capable of
challenging the assumptions of fact - relied on by the Minister
when issuing the decision confirming the assessment of January
19, 2000 issued pursuant to the Employment Insurance Act
and the Canada Pension Plan - as it pertained to the
workers earlier described as "the student", (Richard
Borbridge), "the Section Leader" (Marco Vincente) and
those listed - at paragraph 5 of the Reply - as
"the musicians" including - again - Richard
Borbridge. As a result, the decision in respect of these persons
will remain unchanged.
[23]
Having regard to all of the evidence and applying it in the
manner directed by the Federal Court of Appeal in Wiebe,
supra, the appeal of Young is hereby allowed and the
assessment is referred back to the Minister for reconsideration
and reassessment on the basis that Margaret Koop and Don Grice be
deleted therefrom because they were not employed in insurable
employment with Young United Church during the relevant
period.
[24]
The appeal of Don Grice is hereby allowed and the decision of the
Minister is varied to find:
Don Grice was not employed in insurable employment with Young
United Church during the period from January 1 to December 31,
1998.
[25]
As agreed by the parties at the outset, the above results apply
to the appeals filed by Young - 2000-5116(CPP) and Grice
- 2000-4916(CPP) filed pursuant to the Plan.
[26]
Therefore, with respect to the appeal by Young, it is hereby
allowed and the assessment is referred back to the Minister for
reconsideration and reassessment on the basis that Margaret Koop
and Donald Grice be deleted therefrom because they were not
employed in pensionable employment with Young United Church
during the relevant period.
[27]
The appeal by Grice is also allowed and the decision of the
Minister is varied to find:
[28]
Don Grice was not employed in pensionable employment with Young
United Church during the period from January 1 to December 31,
1998.
Signed at Vancouver, British Columbia, this
16th day of November 2001.
"D.W. Rowe"
D.J.T.C.C.
COURT FILE
NO.:
2000-4914(EI)
STYLE OF
CAUSE:
Don Grice and M.N.R. and
Young United Church
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
September 12, 2001
REASONS FOR JUDGMENT
BY: The Honourable Deputy Judge D.W.
Rowe
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
Counsel for the Appellant: The
Appellant himself
For the
Respondent:
Tanit Gilliam (Student-at-Law)
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE
NO.:
2000-4916(CPP)
STYLE OF
CAUSE:
Don Grice and M.N.R. and
Young United Church
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
September 12, 2001
REASONS FOR JUDGMENT
BY: The Honourable Deputy Judge D.W.
Rowe
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
Counsel for the Appellant: The
Appellant himself
For the
Respondent:
Tanit Gilliam (Student-at-Law)
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE
NO.:
2000-5115(EI)
STYLE OF
CAUSE:
Young United Church and M.N.R.
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
September 12, 2001
REASONS FOR JUDGMENT
BY: The Honourable Deputy Judge D.W.
Rowe
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
Agents for the
Appellant:
Susan Wilkes
Bruce Gammon
For the
Respondent:
Tanit Gilliam (Student-at-Law)
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE
NO.:
2000-5116(CPP)
STYLE OF
CAUSE:
Young United Church and M.N.R.
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
September 12, 2001
REASONS FOR JUDGMENT
BY: The Honourable Deputy Judge D.W.
Rowe
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
Agents for the
Appellant:
Susan Wilkes
Bruce Gammon
For the
Respondent:
Tanit Gilliam (Student-at-Law)
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4914(EI)
BETWEEN:
DON GRICE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YOUNG UNITED CHURCH,
Intervenor,
Appeal heard on September 12, 2001 at
Winnipeg, Manitoba, by
the Honourable Deputy Judge D.W.
Rowe
Appearances
For the
Appellant:
The Appellant himself
For the
Respondent:
Tanit Gilliam (Student-at-law)
Agents for the
Intervenor:
Susan Wilkes
Bruce Gammon
JUDGMENT
The appeal is allowed and the decision of the Minister is varied
in accordance with the attached Reasons for Judgment.
Signed at Vancouver,
British Columbia, this 16th day of November 2001.
D.J.T.C.C.
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