Date: 20000926
Dockets: 2000-1007-EI, 2000-1010-CPP
BETWEEN:
BRYAN H. SHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KRYSTYNA SOZANSKA,
Intervenor.
Reasons for Judgment
WEISMAN, D.J.T.C.C.
[1]
The Intervenor is a massage therapist. From July 15, 1997 to
November 27, 1998 she was engaged by the Appellant in his
chiropractic and physiotherapy clinic on Bloor Street in the City
of Toronto (the "clinic"). The question before the
Court is whether she was then in insurable and pensionable
employment within the meaning of paragraph 5(1)(a) of the
Employment Insurance Act[1] and paragraph 6(1)(a) of the
Canada Pension Plan[2].
[2]
The Appellant's position is that the Intervenor was an
independent contractor engaged under an oral contract for
services. She received 60 percent of the amounts she invoiced the
clinic, 40 percent thereof being deducted for her use of the
clinic's therapy rooms, reception desk, telephone and fax
facilities. She was encouraged to build up her clientele and
develop her practice. She was also free to ply her trade
elsewhere. She in fact did so, spending one day per week treating
patients at the Manufacturer's Life Insurance Company, where
she retained 100 percent of her billings. G.S.T. was duly paid on
her services for the clinic, no source deductions were made from
her remuneration, and no T4 form issued for income tax purposes.
According to the Appellant, minimal control was exercised over
her daily activities; she could provide her own tools; and had a
chance of profit as her earnings varied with the number of
patients she treated. She also had a risk of loss since she bore
her own expenses for liability insurance, continuing education,
and association fees.
[3]
The Intervenor painted a different picture. At the commencement
of her employment she was provided with, and directed to follow,
an eight page Office Policy Manual that controlled all aspects of
her daily duties from hours of attendance, to treatment
procedures, to food and dress requirements. The patients were the
Appellant's patients. He established the fee schedule and
collected the revenues. The clinic was completely equipped with
all the necessary tools including tables, oils, sheets, pillows,
towels, and CD players. When not treating patients, she was
expected to access the clinic's computer and canvas the
clinic's prior patients for recall appointments. She was also
required to launder the clinic's linen. Since the patients
belonged to the clinic, and she had few expenses in connection
with her duties there, she had no chance of profit or risk of
loss. She maintained that while she was an independent contractor
in her work with the Manufacturer's Life Insurance Company,
she was employed by the Appellant.
[4]
The evidence in this matter must be subjected to the four-in-one
test laid down in Wiebe Door Services v. M.N.R.[3]. The total relationship
between the parties and the combined force of the whole scheme of
operations must be considered.
Control
[5]
Fernie Carvalho, a chiropractic assistant at the clinic,
testified on behalf of the Appellant. Julia Notto, an instructor
of Pilates and Yoga at the clinic testified for the Respondent.
Both confirmed the Intervenor's position that the
clinic's Office Policy Manual had to be adhered to.
[6]
In my view, the extensive controls enumerated in this Manual
together with the added patient recall and laundry duties, placed
the Intervenor in a position of subordination that is more
consistent with her being an employee than an independent
contractor.
Tools
[7]
The evidence is clear that the clinic was fully equipped with all
the tools required for the Intervenor to perform her services.
While the various therapists were free to bring their own tools,
and some in fact did so, the tools factor tends to indicate that
the Intervenor was an employee.
Profit and loss
[8]
The patients whom the Intervenor treated at the clinic were the
patients of the clinic. Their payments went directly to the
Appellant who bore all the risk of bad debts. While the
Intervenor's earnings varied with the number of patients she
treated, this does not constitute a chance of profit[4]. The Appellant
testified that the Intervenor had to perform her services
personally. She was not permitted to bring in an outsider to do
her work at a lower rate of remuneration than she was assured.
She accordingly had no chance of profit in this regard. She also
had no risk of loss in connection with her work at the clinic
since her only expenses were her association fees and liability
insurance. This factor tends to indicate that the Intervenor was
an employee.
Integration
[9]
The Intervenor was committed to spending four days per week
working at the Appellant's clinic. While she did do massage
therapy as an independent contractor in her free time, I find
that she integrated her function into the Appellant's
business. This factor indicates that she was an employee.
[10] The
four-in-one test establishes that the Intervenor was an employee
of the Appellant. While the Appellant asserts to the contrary,
his credibility was impaired. All the therapists who testified
refuted his assertion that the Office Policy Manual was never in
use at the clinic. Only upon cross-examination was it revealed
that the Appellant bore the entire risk of bad debts. This
confirms that the patients were his patients, the business his
business. He was also an evasive witness. When asked if he
requested the Intervenor to do the laundry he replied:
"I may have". When pressed for an answer he
admitted: "Okay, yes".
[11] I find
that the Appellant has failed to discharge the burden of proof in
this matter[5]. The
Intervenor was an employee of the Appellant under a contract of
service during the period in question, and was therefore in
insurable and pensionable employment.
[12] The
appeals are dismissed and the decisions of the Minister are
confirmed.
Signed at Toronto, Ontario, this 26th day of September
2000.
"N. Weisman"
D.J.T.C.C.
COURT FILE
NO.:
2000-1007(EI)
STYLE OF
CAUSE:
Bryan H. Sher and M.N.R. and
Krystyna Sozanska
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
August 29, 2000
REASONS FOR JUDGMENT BY: the
Honourable Deputy Judge N. Weisman
DATE OF
JUDGMENT:
September 26, 2000
APPEARANCES:
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the
Respondent:
Lesley King
For the
Intervenor:
The Intervenor herself
COUNSEL OF RECORD:
For the
Appellant:
Name:
Lawrence A. Wolfman
Firm:
Kerr, Oster & Wolfman
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
Name:
Firm:
COURT FILE
NO.:
2000-1010(CPP)
STYLE OF
CAUSE:
Bryan H. Sher and M.N.R. and
Krystyna Sozanska
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
August 29, 2000
REASONS FOR JUDGMENT BY: the
Honourable Deputy Judge N. Weisman
DATE OF
JUDGMENT:
September 26, 2000
APPEARANCES:
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the
Respondent:
Lesley King
For the
Intervenor:
The Intervenor herself
COUNSEL OF RECORD:
For the
Appellant:
Name:
Lawrence A. Wolfman
Firm:
Kerr, Oster & Wolfman
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
Name:
Firm:
2000-1007(EI)
BETWEEN:
BRYAN H. SHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KRYSTYNA SOZANSKA,
Intervenor.
Appeal heard on common evidence with the appeal
of Bryan H. Sher (2000-1010(CPP)) on August 29,
2000 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the
Appellant:
Lawrence A. Wolfman
Counsel for the
Respondent:
Lesley King
For the
Intervenor:
The Intervenor herself
JUDGMENT
The
appeal is dismissed and the decision of the Minister is confirmed
in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 26th day of September
2000.
D.J.T.C.C.
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