Date:
20010611
Docket:
2000-3759-EI,
2000-3760-CPP
BETWEEN:
RIVERSIDE
SKATING CLUB,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Reasons
for judgment
O'Connor, J.T.C.C.
[1]
These appeals were heard at Windsor, Ontario on June 1,
2001.
[2]
The Reply in the employment insurance appeal (2000-3759(EI)) sets
forth the basic facts as follows:
4.
The Appellant appealed a ruling to the Respondent for the
determination of the question of whether or not
Jennifer Jackson (the "Worker") was employed in
insurable employment, while engaged by the Appellant for the
period from January 1, 2000 to March 14, 2000, within the meaning
of the Employment Insurance Act (the
"Act").
5.
By letter dated June 13, 2000, the Respondent informed the
Appellant that it had been determined that the Worker's
engagement with the Appellant, during the period in question, was
insurable employment for the reason that the Worker was employed
pursuant to a contract of service.
6.
In making his decision, the Respondent relied on the following
assumptions of facts:
(a)
the Appellant is a non-profit organization which provides skating
programs to the community;
(b)
the Appellant was responsible for the registration of
students;
(c)
the Appellant was responsible for collecting fees from the
students or their parents;
(d)
the Appellant was responsible for establishing the session
schedules;
(e)
the Worker was hired by the Appellant as a skating
instructor;
(f)
the Worker performed her duties at the Riverside
arena;
(g)
the Worker was paid on a monthly basis by the Appellant, at the
rate of $34.00 per hour;
(h)
the rate of pay was established by the Canadian Figure Skating
Association;
(i)
the Appellant had the right to terminate the Worker's
services if the Worker did not perform a session, for
inappropriate behaviour on the ice or inappropriate behaviour
towards a student;
(j)
the Appellant determined where, when and to whom the Worker would
provide her coaching services;
(k)
the Worker was required to perform the services
personally;
(l)
the Appellant paid for the rental of the ice time, at no charge
to the Worker;
(m)
the Worker did not incur any expenses in the performance of her
duties;
[3]
The Reply in the CPP appeal (2000-3760(CPP)) is identical to the
foregoing except that paragraph 4 thereof refers to the Canada
Pension Plan rather than the Employment Insurance
Act.
[4]
After listening to the testimony of Theresa Hart, the agent for
the Appellant (the "Club") and one of its
administrators, and June, Liu-Vajko, another administrator of the
Club, I add only the following qualifications to the facts and
assumptions set out in the Replies.
[5]
The Canadian Figure Skating Association is now called Skate
Canada and it was Skate Canada that established the
qualifications for a skating coach. The Club could only hire
skating coaches approved by Skate Canada. Further, the Worker
provided her own skates and looked after the maintenance and
sharpening thereof. The Worker would keep track of her hours and
submit a periodic bill setting forth the hours of coaching she
had done and the pay for those hours. The coaching was on a
periodic basis, starting mainly in September and ending in March
of the following year.
[6]
The Club was a legal, non-profit corporation. There were
approximately 129 children as members of the Club aged between
three and 18 and there were three different levels or
classifications of skaters starting with the very young ones who
essentially were learning how to skate and graduating to the last
group of relatively accomplished skaters. In the period in
question there were four coaches involved. The Worker had no
guaranteed hours but generally the hours worked were 24 hours per
week. From time to time but not often the Worker, when not able
to attend a session would find someone experienced in coaching to
take her place for that session. In addition to the hours devoted
to Club members, the Worker gave private lessons to some of those
members and to others. The administrators were
volunteers.
[7]
Once again, this is a case of having to determine whether the
engagement by the Club of the Worker was a contract of service or
a contract for service, i.e. independent
contractor.
[8]
As usual, in cases of this nature, it is necessary to examine the
four elements set forth in the decision of MacGuigan, J. of the
Federal Court of Appeal in the matter of Wiebe Door Services
Ltd. v. M.N.R. 87 DTC 5025, namely, control, ownership of
tools, chance for profit and risk of loss, and the integration
test.
[9]
As appears from the assumptions set forth in the Replies, there
was a considerable measure of control exercised by the Club over
the Worker. In particular, the fact that the Club established the
session schedules and hired the Worker who performed her duties
at a set place, namely the Riverside Arena. Further, the
Appellant had the right to terminate the Worker's services as
contemplated in the Reply.
[10] As to
tools, the Worker owned her skates and maintained same but it was
the Club that paid for and provided the ice-time. The Worker had
no chance of profit or risk of loss. She was paid simply at the
rate of $34.00 per hour.
[11] Further, in
my opinion, the Worker's job was an integral part of the
services provided by the Club, namely skating lessons.
[12] One of the
positions set forth by the agent for the Appellant was that, in
essence, the Club was merely an intermediary between the parents
of the members who paid the fees for the skating lessons and the
Club consequently should not be considered as a separate and
distinct employer. In my opinion this position is not
correct.
[13] If I had
any doubt in this matter, it is resolved by examining the
decisions in two cases cited by counsel for the
Respondent.
[14] In Puri
v. Minister of National Revenue, [1998] T.C.J. No. 175, Rowe,
D.T.C.J., in dealing with a case practically on all fours with
the present case, stated as follows at paragraph 10:
The appellants were
qualified coaches, certified by the CFSA. As members of the CFSA,
they were required to adhere to the by-laws, rules and
regulations of that organization and to abide by the CFSA
Coaching Code of Ethics. The requirement in the contracts between
the appellants and the Club to this effect was merely surplusage
and does not impact on the aspect of control. There was little
supervision over the appellants as they were qualified and able
to teach the classes making up the particular programs offered by
the Club. However, the Club - at paragraph 3.05 - Exhibit A-2 -
reserved the right to determine the type of instruction to be
given at a particular session in consultation with the
appellants, in their role as a coach. Pursuant to the
contract(s), the appellants were required to attend monthly
executive meetings of the Club and had to ensure all students
were aware of and complied with the rules and regulations of the
Club (Paragraphs 4.08 and 4.09 - Exhibit A-2). As coaches, they
had to work with the session convenor or other coaches to ensure
that all rules and regulations were adhered to and to maintain
discipline during a session when directed to do so by the Club
(Paragraph 4.10 - Exhibit A-2). They were also obligated to
maintain harmonious relations with all Club members, coaches and
instructors. More significantly, they were assigned classes or
programs that the Club organized, advertised, structured,
scheduled and funded by collecting registration fees. The Club
set the hourly rate for group instruction and, in the 1995
contract, set the fee of $30 per hour for private lesson time (a
curious provision for which no explanation was given). The
appellants could not mix any of their own students with a group
session taking place under the auspices of the Club. The number
of hours of instruction was set by the Club, as was the duration
of a particular program. The appellants were required to
undertake the instruction personally and, except for limited
substitution under certain circumstances, could not subcontract
out their duties.
Also,
reference is made to a decision of Sobier, T.C.J. in Whistler
Mountain Ski Club v. Minister of National Revenue, [1996]
T.C.J. No. 876. In that case, the learned judge stated as follows
at paragraphs 22 and 25:
22.
Supervision or control of how a professional or expert performs
his functions cannot be said to be control since the professional
generally knows more about his functions than his employer. He
can however exercise control over his employee by setting his
hours of employment, his place of employment, whether he can come
and go at his own wish.
...
25.
In the case at bar the coaches were told who they would instruct,
when and where the instruction was to be given. They were not
able to come and go as they pleased. It is an entrepreneur who
takes risks, not an employee. An entrepreneur may say : "If
I work hard and long, my efforts will be rewarded". He will
say: "The more people I coach, the more I will earn".
On the other hand, compensation on piece work or commission basis
does not determine self-employment if the employer sets the other
standards and otherwise controls the employee. Here, the coach
cannot earn more than his per diem or per month rate. If his
group shrinks because of non-attendance of athletes, his rate is
not reduced. Here, no matter how few or how many hours worked, no
matter how few or how many athletes he coached, he earns the same
amount. The coaches are assigned groups and told when to coach
them. He may not include outsiders into his group. He risks no
loss.
[15] Based on
the assumptions of the Respondent contained in the Replies
(notwithstanding the qualifications noted) and relying on the two
cases cited above, I am of the opinion that, on a balance of
probabilities, the Worker performed her work under a contract of
service. Consequently, she was an employee and as a result the
appeals must be dismissed.
Signed at
Ottawa, Canada this 11th day of June 2001
J.T.C.C.COURT
FILE
NO.:
2000-3759(EI) and 2000-2760(CPP)
STYLE OF
CAUSE:
Riverside Skating Club and M.N.R.
PLACE OF
HEARING:
Windsor, Ontario
DATE OF
HEARING:
June 1, 2001
REASONS FOR
JUDGMENT BY: The Honourable Judge T.P.
O'Connor
DATE OF
JUDGMENT:
June 11, 2001
APPEARANCES:
Agent for
the
Appellant:
Terry Hart
Counsel
for the
Respondent:
Rosemary Fincham
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3759(EI)
BETWEEN:
RIVERSIDE
SKATING CLUB,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeal heard
with the appeal of Riverside Skating Club
(2000-3760(CPP)
on June 1,
2001 at Windsor, Ontario by
the
Honourable Judge Terrence O'Connor
Appearances
Agent for
the
Appellant:
Terry Hart
Counsel
for the
Respondent:
Rosemary Fincham
JUDGMENT
The appeal is dismissed and the decision of the Minister is
confirmed in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada this 11th day of June 2001.
J.T.C.C.
2000-3760(CPP)
BETWEEN:
RIVERSIDE
SKATING CLUB,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeal heard
with the appeal of Riverside Skating Club
(2000-3759(EI)
on June 1,
2001 at Windsor, Ontario by
the
Honourable Judge Terrence O'Connor
Appearances
Agent for
the
Appellant:
Terry Hart
Counsel
for the
Respondent:
Rosemary Fincham
JUDGMENT
The appeal is dismissed and the decision of the Minister is
confirmed in accordance with the attached Reasons for
Judgment.
Signed at
Ottawa, Canada this 11th day of June 2001.
J.T.C.C.
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