Date: 20000706
Docket: 2000-301-EI
BETWEEN:
REDVERS ACTIVITY CENTRE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1]
This appeal from a decision of the Minister was heard at Regina,
Saskatchewan on June 28, 2000. Naomi Hjertaas of Redvers,
Saskatchewan, the Chief Executive Officer of the Appellant was
the only witness. Paragraph 6 to 8 inclusive of the Amended Reply
sets out the issue before the Court. They read:
6.
In response to the appeal, the Minister decided the
following:
a)
the Worker was in insurable employment with the Appellant for the
period October 16, 1997 to October 31, 1998;
b)
the Worker had 3,407 insurable hours for the period October 16,
1997 to October 21, 1998.
7.
In so deciding as he did the Minister relied on the following
assumptions of fact:
a)
the Appellant operates personal care homes;
b)
the Worker was hired as a group home operator;
c)
the Worker's duties included cooking, cleaning, purchasing
groceries, dispensing medication, providing entertainment and
activities, and accompanying residents on outings;
d)
the Worker was assisted by a developmental programmer, an
afternoon program worker, a night care worker, and a weekend
programmer;
e)
the Worker was employed under a contract of service;
f)
the Worker worked a regular schedule of 3 days on and 3 days off,
or 4 days on and 4 days off;
g)
when the Worker worked her shift she normally got some rest
between 11:00 PM and 6:00 AM;
h)
the Appellant set the Worker's schedule;
i)
the Worker earned a set daily wage of $137.04, then $142.52, and
finally $151.00;
j)
the Worker also earned a set hourly wage for extra hours
worked;
k)
the Appellant issued T4s to the Worker with earnings of
$28,069.00 in 1997 and $25,741.00 in 1998;
l)
the Appellant exercised control over the Worker;
m)
the Worker performed her services at the Appellant's
premises;
n)
the Appellant provided all of the tools and equipment
required;
o)
the Worker was not in a position to incur a profit or loss;
p)
the Appellant did not keep track of the actual hours worked by
the Worker while the Worker was on her shift;
q)
it is not reasonable to conclude that the Worker worked 24 hours
per day for three or four days in a row;
r)
subsection 13.2(1) of the Saskatchewan Labour Standards Act
states: "no employer shall require an employee to work or to
be at the disposal of the employer for periods that are scheduled
so that the employee does not have a period of eight
consecutive hours of rest in any period of 24 hours, except
in emergency circumstances within the meaning of subsection
12(4)."
s)
the Worker's insurable hours are detailed on Schedule
"A" attached to and forming part of the
Amended Reply to the Notice of Appeal;
B.
ISSUES TO BE DECIDED
8.
The issue to be decided is the number of insurable hours worked
by the Worker while being employed by the Appellant for the
period October 16, 1997 to October 31, 1998.
Betty Jack is the "Worker".
[2]
Naomi Hjertaas stated that assumptions 7(b), (d), (e), (h), (i),
(j), (k), (l), (m), (n), (p) and (u) are correct. In respect to
(a) and (c), the Appellant operates "group" homes and
Betty Jack's primary duty was to care for and supervise the
care of the home's residents. Respecting (f), the shifts were
3 days on, and 3 days off. Respecting (p), there was no need to
track Betty Jack's hours because she worked for a straight 72
hours. (g) was denied. (s) contains, in essence, the
Respondent's legal position.
[3]
Betty Jack contracted for employment with the Appellant on
December 2, 1996 by means of Exhibit R-2 which
reads:
REDVERS ACTIVITY CENTRE INC.
Box 418 - Redvers, Saskatchewan - SOC 2H0
Telephone: 452-3544
Fax: 452-6003
December 2, 1996
Betty Jack
Manor, Sask.
S0C 1R0
Dear Betty:
I am very pleased that you have accepted the position of Group
Home Operator at the McBain Ave. Home. You will be working
opposite ___________. A job description is attached.
Your starting date will be December 19, 1996 with your
anniversary date remaining as August 12, 1993, your original date
of casual employment. As we discussed the shift rotation will be
3 days on 3 days off. A schedule for December is enclosed.
As a group home operator your rate of pay will be $134.40 per
day. Your benefits will be adjusted in accordance with your
increased regular salary. Please contact Lorraine Fidelak if you
have any questions. The probationary period will be 6 months.
As an employee of the Redvers Activity Centre you are
responsible for maintaining a working knowledge of and complying
with all Agency Policies and Procedures. A copy of the manual is
available at the business office. A meeting for yourself and
Carole Edwards will be arranged as soon as possible.
Please sign and return this letter for photocopying if you
agree with the terms as outlined above.
Please call if you have any questions. All the best in your
new position.
Yours sincerely,
Naomi Hjertaas
Chief Executive Officer
NH/js
Encl.
I accept the above position with terms as outlined.
"Betty
Jack"
Name
"Dec.
4/96"
Date
[4]
The Appellant operates three "group homes" in Redvers.
Betty Jack was hired as a "group home operator" for the
McBain Ave. Home. These titles have legislated meanings in
Saskatchewan under The Residential Services Act, Chapter
R-21.2 S.S. 1984-85-86 as amended and its Regulations. Subsection
2(c) of the Regulations defines Betty Jack's position as an
"operator" as follows:
"operator" means any representative of the facility
that has control or management of a residential-service
facility.
[5]
Subsections 8(1) and (2) of the Saskatchewan Labour Standards
Regulations, 1995 then state that Sections 6, 12 and 13.2 of
the Labour Standards Act of Saskatchewan (Chapter L-R.S.S.
1978 as amended) do not apply to an operator of a residential
service facility (namely, Betty Jack). Thereby, respectively,
Betty Jack as an operator need not be paid overtime for working
more than 40 hours per week, can be required to work more than 40
hours per week, and is not compelled to have 8 consecutive hours
of rest in any period of 24 hours.
[6]
The reasons for these severe amendments respecting operators is
that they are employed to reside in the group homes for shifts of
24 hours per day, in this case for 72 consecutive hours. In the
Court's view, they act as a mother to the residents of the
group home. There is always at least one other staff member
there, but the operator is the supervisor or manager of the home
and of its residents.
[7]
The McBain Ave. Home was built in 1989. It is a high care home
for residents with high care physical and medical needs. It has a
more highly qualified staff than some of the Appellant's
other homes with residents of lesser needs. The staff prepares
meals, does the laundry and the cleaning of the home. But
primarily the staff attends to the personal care of the patients.
During the period in question three individuals at the home were
severely disabled and had to be assisted in everything including
being told when to go to the toilet. The other three residents
were not quite that severe. Of the three most severe, two were up
at all hours of the day and night and the third would make very
loud noises at night from time to time and disrupt the home.
Betty Jack was responsible for the supervision of the home, for
making doctors' appointments for the residents and for
attending meetings with them. During the day there were three
other staff in the home. From 11:00 p.m. to 7:00 a.m. there was
one other staff member on duty. On Saturdays, Sundays and on
holidays if no one was in the home and another of the
Appellant's operators was in another home in Redvers the
operator on duty could leave the home between 11:00 a.m. and
3:00 p.m. if she had no other duties to attend to.
[8]
Employment Insurance Regulations 9.1, 10, and 10.1(1) and
(2) read:
9.1
Where a person's earnings are paid on an hourly basis, the
person is considered to have worked in insurable employment for
the number of hours that the person actually worked and for which
the person was remunerated.
...
PART I
UNEMPLOYMENT BENEFITS
10.
(1) Where a person's earnings are not paid on an hourly basis
but the employer provides evidence of the number of hours that
the person actually worked in the period of employment and for
which the person was remunerated, the person is deemed to have
worked that number of hour in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where
there is doubt or lack of specific knowledge on the part of the
employer as to the actual hours of work performed by a worker or
by a group of workers, the employer and the worker or group of
workers may, subject to subsection (3) and as is reasonable in
the circumstances, agree on the number of hours of work that
would normally be required to gain the earnings referred to in
subsection (1), and, where they do so, each worker is deemed to
have worked that number of hours in insurable employment.
(3)
Where the number of hours agreed to by the employer and the
worker or group of workers under subsection (2) is not reasonable
or no agreement can be reached, each worker is deemed to have
worked the number of hours in insurable employment established by
the Minister of National Revenue, based on an examination of the
terms and conditions of the employment and a comparison with the
number of hours normally worked by workers performing similar
tasks or functions in similar occupations and industries.
(4) Except where subsection (1) and section 9.1 apply, where a
person's actual hours of insurable employment in the period
of employment are not known or ascertainable by the employer, the
person, subject to subsection (5), is deemed to have worked,
during the period of employment, the number of hours in insurable
employment obtained by dividing the total earnings for the period
of employment by the minimum wage applicable, on January 1 of the
year in which the earnings were payable, in the province where
the work was performed.
(5)
In the absence of evidence indicating that overtime or excess
hours were worked, the maximum number of hours of insurable
employment which a person is deemed to have worked where the
number of hours is calculated in accordance with subsection (4)
is seven hours per day up to an overall maximum of 35 hours per
week.
(6)
Subsections (1) to (5) are subject to section 10.1.
SOR/97-31, s. 4. (CIF 01.01.97)
10.1 (1) Where
an insured person is remunerated by the employer for a period of
paid leave, the person is deemed to have worked in insurable
employment for the number of hours that the person would normally
have worked and for which the person would normally have been
remunerated during that period.
(2) Where an insured person is remunerated by the employer for a
period of leave in the form of a lump sum payment calculated
without regard to the length of the period of leave, the person
is deemed to have worked in insurable employment for the lesser
of
(a) the number of hours that the person would normally
have worked and for which the person would normally have been
remunerated during the period, and
(b) the number of hours obtained by dividing the lump
sum amount by the normal hourly rate of pay.
...
[9]
They are the basis for the decision. Betty Jack was paid per day
as an operator. At other times she occasionally worked at an
hourly rate in a different position. What is at issue is whether,
during the period she worked as an operator, her earnings were
paid on an hourly basis under her contract with the Appellant.
Exhibit R-2 agrees that her "rate of pay will be $134.40 per
day". Therefore her rate of pay was not hourly, it was per
diem. The Respondent suggested that Betty Jack stated that she
only worked 12 hours per day. There is no evidence of that
alleged statement except this alleged hearsay. However in a small
rural Saskatchewan town such as Redvers "work" is often
the name used for hard physical labour, rather than supervision.
As a result that alleged statement is disregarded. Similarly, the
Respondent alleged that the per diem rate was based on the hourly
minimum wage in Saskatchewan. That may have once been the case,
but it was not during the period in question and there is no
evidence that Betty Jack understood anything like that. Rather,
she agreed to a flat per diem rate.
[10] The
question then is whether the employer has provided evidence of
the number of hours Betty Jack actually worked in the period of
employment. She was required to be at the home for 72 straight
hours attending to her duties of employment. But the Respondent
states that there are two times when she was not working:
1.
When she was allowed by the Appellant to sleep in the home each
night while she was nonetheless on call by the night employee to
assist or supervise that employee or a resident.
In the Court's view, at that time she was in the
Appellant's facility, and used the Appellant's equipment
(or tools); she was under the control of the Appellant; she had
to comply then with her contract with the Appellant; and she was
integral for the Appellant's operation of the home. She was
not simply on call through a beeper. Rather she was in the
Appellant's home just like a parent is in a family home. The
other employee functioned, in the same comparison, like a night
maid.
2.
On the occasional weekend when Betty Jack might get out of the
home for four hours between 11:00 a.m. and 3:00 p.m. if another
operator was in another of the Appellant's residences.
Given the incapacity of the residents, this appears to the
Court to be so minute a period as to qualify for de minimis
non curat lex. Nonetheless (to continue the comparison) it is
no different from the exceptional occasion when a mother of 3
small children and 3 older children might get out of her house.
Betty remained on call and fully responsible to carry out her
duties. The Court takes judicial notice of the fact that Redvers
is a community of less than 1,000 people - so that it is not
large and distances are not great. That circumstance is no
different than an employer who tells an employee in a slack
period to go and attend to his own affairs but be back - while
the employee continues to be paid on company time. It is merely
an incident.
[11] Mrs.
Hjertaas testified that the Appellant is of the view that Betty
Jack works a 72 hour shift and is remunerated at a daily rate for
that employment period of 3 consecutive days. Thus Betty Jack is
deemed to have worked 24 hours each day for 3 days, a total of 72
hours, in insurable employment, pursuant to subsection 10(1) of
the Employment Insurance Regulations. Moreover, the
provisions of Saskatchewan's Labour Standards Act and
Regulations indicate that in the province's view this is
reasonable. The province is responsible for civil rights in
Saskatchewan.
[12] Because
Regulation 10(1) applies, the appeal is allowed. Betty Jack is
deemed to have worked 72 hours in her 3 day shifts and the Court
also finds that as a fact.
[13] However,
if Regulation 10(1) did not apply, subsection 10(2) would apply
on the basis that the employer and the worker had agreed that the
number of hours worked by Betty Jack each day is 24 hours. Given
the needs of the home's residents for, in essence, the care
of a mother figure, 24 hours are reasonable to the Court as well.
That is what Betty Jack and the Appellant agreed to and for this
reason, should it be necessary to so find, the Court finds that
Betty Jack is deemed to have worked that number of hours per day,
namely 24 hours, in insurable employment.
[14]
Therefore, the Court finds that it was not necessary for the
Minister to establish the number of insurable hours pursuant to
subsection 10(3) of the Employment Insurance
Regulations.
[15] The
appeal is allowed.
Signed at Ottawa, Canada this 6th day of July,
2000.
"D.W. Beaubier"
J.T.C.C.
COURT FILE
NO.:
2000-301(EI)
STYLE OF
CAUSE:
Redvers Activity Centre Inc. v. The Queen
PLACE OF
HEARING:
Regina, Saskatchewan
DATE OF
HEARING:
June 28, 2000
REASONS FOR JUDGMENT BY: The
Honourable D.W. Beaubier
DATE OF
JUDGMENT:
July 6, 2000
APPEARANCES:
Counsel for the Appellant: Curtis R. Stewart
Counsel for the
Respondent:
Julie Rogers-Glabush
COUNSEL OF RECORD:
For the
Appellant:
Name:
Curtis R. Stewart
Firm:
McPherson Leslie & Tyerman
Saskatoon, Saskatchewan
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-301(EI)
BETWEEN:
REDVERS ACTIVITY CENTRE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on June 28, 2000 at Regina,
Saskatchewan by
the Honourable Judge D.W. Beaubier
Appearances
Counsel for the
Appellant:
Curtis R. Stewart
Counsel for the
Respondent:
Julie Rogers-Glabush
JUDGMENT
The
appeal is allowed and the decision of the Minister is vacated in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 6th day of July, 2000.
J.T.C.C.
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