Mirchandani v. M.N.R., docket 2000-115-CPP

Date: 20000509

Dockets: 2000-60-EI; 2000-61-CPP; 2000-88-EI; 2000-89-CPP; 2000-92-EI; 2000-93-CPP; 2000-116-EI; 2000-115-CPP

BETWEEN:

MUKESH MIRCHANDANI, EUGENE MARCOUX, ROUMEN MILEV, HUSSAM BAWA,

Appellants,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Beaubier, J.T.C.C.

[1] These appeals were heard together on common evidence by consent of the parties at Saskatoon, Saskatchewan on April 19 and 20, 2000. All of the Appellants testified and called Edwin Hobday, Administrative Director of the Saskatchewan Medical Association who negotiates contracts on behalf of physicians in Saskatchewan, to testify. The Appellants are all psychiatrists who practised during the pertinent periods of 1999 in Saskatchewan. Dr. Mirchandani has practised under similar contracts in Yorkton for 13 years; Dr. Marcoux under a similar contract for five years in Saskatoon; Dr. Milev has practised under a similar contract for four years in Regina; and Dr. Bawa practised under a similar contract in Moose Jaw for about five years, but has since moved to Calgary.

[2] In each appeal the issue is the same. The assumptions are identical in the Replies to each appeal. Paragraphs 5, 6 and 7 are quoted from the Reply to Dr. Mirchandani's EI appeal, because his number is the earliest in the Court's records of these appeals. Interlineated in the quotation of each assumption will be the Court's comments on each assumption respecting the doctors or particularized to one or another doctor if necessary. Paragraphs 5, 6 (with interlineations) and 7 read:

5. In response to an appeal to the Minister from a ruling that the Appellant was employed in insurable employment with the East Central District Health Board (hereinafter "the Payor"), for the period January 1, 1999 to April 30, 1999, the Minister decided that the employment of the Appellant was insurable as he was employed under a contract of service.

6. In so deciding as he did the Minister relied on the following assumptions of fact:

(a) the Payor operates a district health board;

Each Appellant is located in a different district in Saskatchewan. By statute, the province is divided into health service districts. District health boards administer all provincially funded public health services, including all public hospitals and other public health services.

(b) the Appellant was hired as a psychiatrist;

This sentence is wrong as is its implication. Each psychiatrist contracted with a district health board "Payor" to supply psychiatric services to patients who were referred to or came to him. Drs. Milev and Bawa were recruited from abroad and public funds paid for their transportation to Saskatchewan on the condition that they stay in Saskatchewan for five years, failing which they would reimburse that board for all or part of their transportation costs. This was done under a contract separate from the contracts in question. In addition, when they immigrated to Canada, it was on the undertaking that they had contracts for "employment" in Canada for five years, according to their oral testimony on cross-examination.

(c) the Appellant entered into a written contract with the Payor;

Each contract is normally for one year. Exhibit A-1, Tab 5 contains Dr. Milev's contract for a six month term included in the period under his appeal. It reads:

THIS AGREEMENT made this 1^st day of April, 1999.

BETWEEN:

REGINA DISTRICT HEALTH BOARD

(hereinafter referred to as "the Board")

- and -

DR. R. MILEV

(hereinafter referred to as "the Physician")

AGREEMENT

FOR PROVISION OF PSYCHIATRIST SERVICES

TO THE BOARD

WHEREAS the Board is responsible for the provision of psychiatric services within the health district; and

WHEREAS the Physician has agreed to provide psychiatric services to the Board.

In consideration of the agreements set forth herein, the parties agree as follows:

1. This agreement shall commence on the 1^st day of April, 1999 and except has herein provided, continue in effect until the 1^st day of November, 1999.

2. The Physician agrees that:

a) The physician shall provide psychiatric services to the Board as set out in the terms of this contract.

b) The services include the practice of psychiatry at the Regina Health District for the Mental Health Services (Mental Health Clinic) as well as adjoining Health Districts for which we provide coverage, including regular and emergency psychiatric services.

c) The services will be provided in a competent, conscientious and professional manner within the scope of practice of the Physician and in accordance with The Mental Health Services Act, the Medical Staff Bylaws of the Regina Health District and the rules and regulations of the Department of Psychiatry.

d) The Physician will maintain appropriate privileging & credentialling status pursuant to medical/dental bylaws of the board; membership in the Canadian Medical Protective Association and the College of Physicians and Surgeons of Saskatchewan, and demonstrate proof of membership upon request.

3. a) The Physician will provide:

(i) 432 sessional units of service per fiscal year, subject to adjustment as otherwise mutually agreed to by the parties; and,

(ii) Emergency services coverage which will include any work urgently required to be carried out and failure to do so would result in endangering the health and safety of a client of the Board or of another individual by a client of the Board.

(b) In return for such services, the Physician will be paid $377.00 per sessional unit and an additional 7% for Senior Consultant Psychiatrist responsibilities, and $186.00 for standby services coverage Monday through Friday, from 5:00 p.m. to 8:00 a.m. and $373.00 for standby services coverage Saturday, Sunday and statutory holiday.

4. All statutory payments including Income Tax, Canada Pension, GST and like obligations required to be made are the sole responsibility of the physician.

5. Renewal of Agreement:

The Board agrees that if it intends to renew this contract, it will serve notice of this intent 120 days prior to the expiry of this agreement. Thereafter, it will enter into negotiations in good faith. In the event that these negotiations go beyond the expiration date of this agreement, the parties agree the existing agreement shall continue until such time as it is replaced by a new agreement.

6. Termination of Agreement:

a) This agreement may be terminated at any time by mutual agreement of the parties.

b) The Physician can terminate this agreement by giving the Board 90 days written notice; or

c) The Board can terminate this agreement by giving the physician 180 days written notice; or

d) Either party has the right to terminate this agreement without prior notice in the event of a breach of any provision of this agreement that has not been remedied after 30 days written notice of such breach given by the other party.

In the event of a dispute with respect to the breach, the parties agree that only the matter of whether or not there is a breach will be referred to the Provincial Dispute Resolution Panel.

7. Indemnification:

a) The Board shall indemnify and hold harmless the Physician from and against any injury (including death) to persons or loss of or damage to property which arises out of the act, default or negligence of the Board, employees, agents or assigns and which arises out of or relates to the performance of this agreement as well as from against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in relation thereto.

b) The Physician shall indemnity and hold harmless the Board from and against any injury (including death) to persons or loss of or damage to property which arises out of the act, default or negligence of the Physician, or any person acting on his behalf or under his direction or control, as well as from against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in relation thereof.

c) Each party agrees to indemnify the other party against all losses and costs (including reasonable legal fees) which the other party may incur by reasons of the indemnifying party's breach of any term, provision, covenant, warranty or representation contained in this agreement or in connection with the enforcement of this agreement or any provision of it.

d) This indemnification shall survive the terms of this contract.

IN WITNESS WHEREOF the parties have duly executed this Agreement the day and year first above written.

REGINA DISTRICT HEALTH BOARD

Per: "signature"

Per: "signature"

"Signature" "Signature"

Witness Dr R. Milev

Dr. Milev is originally from Bulgaria. He is about 40 years old. Less than five years ago, he was recruited to Saskatchewan from the United Kingdom by the Regional Psychiatric Services Centre in Saskatoon and referred to the Regina Health District for contract. All of the Appellants have the choice on recruitment and upon every annual contract for three types of contract:

(1) To be fully employed by the Payor at a salary with full civil service-like employment benefits.

(2) To contract on a straight fee for service, to bill Saskatchewan Medical Services for patient attendances based solely on units of time and to set up and pay for all of their own offices and services except in-hospital services.

(3) To enter into a contract like Dr. Milev's or Dr. Mirchandani's which is also based solely on units of time billed to the District.

Dr. Milev is president of the Saskatchewan Psychiatric Association and represents Saskatchewan on the Council of the Canadian Psychiatric Association. He testified that Saskatchewan has the lowest number of psychiatrists per person of population in Canada – one for every 1,500 people. Dr. Mirchandani is the sole psychiatrist serving his District, which centres on Yorkton. It has a budget for more psychiatrists, but can't recruit them. Dr. Bawa and one other psychiatrist served the Moose Jaw District which also has a budget for more psychiatrists. The only District with a sufficient number of psychiatrists is Saskatoon. That number exists there because of the psychiatric staff employed by the College of Medicine at the University of Saskatchewan, who also do some outside practice.

(d) the Appellant was required to practice in the Payor's service area;

All of the psychiatrists provide a full range of services to their patients, including in-hospital electric shock treatments. Except for jail services, they serve their patients in District clinic offices and hospitals. All can practice elsewhere and most have, even during contract periods. But in such event they do not bill their Payor districts. They bill another district or they bill in whatever other manner they have contracted for elsewhere. Thus, they are required to practise in the Payor's service area in order to be paid by that Payor. On the basis of the doctors' testimony, they are not required to provide any particular number of sessional units. In fact, Exhibit A-1, Tab 5, subparagraph 3(a) is on point. It is wrong when it requires Dr. Milev to provide 432 sessional units per fiscal year; it is not a contract for a full year and it does not break down the units for the six months of the contract because that is not necessary. On the evidence, each doctor responded to demand and billed for the number of units for which he was in demand or that he felt like working in that District.

(e) the Appellant was paid a set fee per session plus a fee for standby duty;

This is correct. It should be noted that the fee for service psychiatrists bill Saskatchewan Medical Services on a time basis as well, but their billing time periods are shorter. There is no difference in the service each provides. Dr. Milev has billed for more and for fewer sessions than are described in the contract. Dr. Mirchandani consistently bills for far more than are contracted for since he is the only psychiatrist serving his District. The rate of pay per session varies depending on each doctor's negotiating skills and the demand of each District.

The standby services described in Exhibit A-1, Tab 5, subparagraph 3(b) refers to "on call duty" which the psychiatrists in Regina rotate among all the psychiatrists without regard to whether they are fee for service or contracted for like Dr. Milev. The psychiatrists on call each week treat everyone's patients for or by whom they are called.

(f) a session is a four hour block of time, either 8:00AM to Noon or 1:00PM to 5:00PM;

"Sessions" are blocks of billing time consisting of four hours each. They may be plus or minus four hours by about one-half hour; they may be accumulated hours; they may include weekend time and they may start at 7:00 a.m. or earlier and end far later than 4:00 p.m., including occasional evening sessions. Dr. Mirchandani, who works alone in Yorkton, often bills double the number of annual sessions and from time to time does three sessions per day. Dr. Marcoux, in Saskatoon, regards the total number in the contract as a ceiling, but he also has a private fee for service practice and some salaried work associated with the University of Saskatchewan (all in the Saskatoon Health District); in addition, he restricts his practise hours. Dr. Milev also restricts the number of hours he practises each year in Regina as did Dr. Bawa in Moose Jaw, each for their own personal reasons.

(g) the Appellant was paid monthly;

So far as there is evidence on this subject, this is correct, but only because the doctors billed the districts monthly for their sessions.

(h) the rates of pay were negotiated between the Appellant and the Payor;

The "template" contract was designed by the Saskatchewan Medical Association and the actual rates varied with seniority in the District and the demand for additional psychiatrists in the District. There was also a higher rate for a "senior psychiatrist" which is a title and does not relate so much to relative seniority or to abilities as to whether someone actually wants the job.

(i) the rates of pay are to be reviewed annually and may be adjusted based on various criteria including the Appellant's performance;

The rates of pay are not based upon performance. All of the psychiatrists practise with patients and there is no monitoring or rating on any basis for performance. Dr. Marcoux testified that the doctors in Saskatoon who are on sessional rates tended to have more chronic patients than the fee for service rate doctors. He also stated that if a fee for service patient did not appear for appointments, that doctor cut the patient from his clientele. Whereas the sessional doctors, whose appointments are booked by clinic staff, did not cut such patients; rather, Dr. Marcoux double booked respecting habitual no-shows so that he could use his patient time. If a sessional doctor's patient fails to show, he is paid for the time booked in any event; whereas, according to his contract, a fee for service doctor, cannot bill for that time.

(j) the Appellant's normal hours of work were 8:30AM to 5:00PM, Monday to Friday;

(k) standby duty hours were from 5:00PM to 8:00AM, Monday to Friday and weekends and holidays;

(l) the Appellant worked full-time for the Payor, the Payor had first call of the Appellant's time;

(m) the Appellant could not replace himself, the Payor approved and paid all replacements;

These are wrong. All the doctors go to their hospitals at the beginning of each morning and work the morning around hospital staff and service hours. In the afternoons they usually work in their clinic offices. Many of these psychiatrists work on the week-ends completing paperwork and, after 5:00 p.m. seeing patients, but they want another staff member available if they are seeing patients. Many take a day off during the normal five day work week such as Wednesday, or some afternoon. They use this for other interests. In Dr. Marcoux's case this is fee for service or university work. Dr. Milev goes from Regina to Royal University Hospital in Saskatoon for one day each week. Some have done locums elsewhere in the province, in Canada, or abroad during the contract year. It is not true that the District has first call on the doctors' times. Each doctor decides what he wants to devote his time to and puts in time for the Payor at his choice for patient attendances in the District. However, no doctor sees fee for service patients in the District office; but he does see such patients in the District hospital.

The doctors constantly arrange for other doctors to replace themselves. They make all of those arrangements. But, the replacement doctors bill the Payor and not the doctor they are replacing. The criteria for the replacement psychiatrist are set by the Saskatchewan College of Physicians and Surgeons and the local hospitals' medical standards.

(n) the Appellant had to abide by various policies and procedures set out by the Payor, the Government, and the profession;

Is correct, but the Payor does not set policies and procedures. It simply accepts psychiatrists who meet the standards set by the Government and the profession.

(o) the Appellant was controlled by the Payor, under the terms of the written contract;

The Payors controlled the payments to the psychiatrists. The Payors' staffs booked the psychiatrists' appointments and if a patient wanted a particular psychiatrist, then that is who the patient saw. However, the psychiatrists could control which hours they saw the patients and they did control how they treated each patient. Except for visits to jails, they saw the patients in the Payors' hospital or offices. The actual practices depended on demand. No one told them how to do a clinic, how much time they must spend on a patient or how many patients to see. If there is a complaint about a psychiatrist, Dr. Milev testified that the Department head of the hospital (another psychiatrist if there is one) may look into it at the local level. Otherwise the Saskatchewan College of Physicians and Surgeons deals with complaints and discipline.

(p) the Appellant's work was monitored by the Chief Psychiatrist;

This is wrong. For example, in Yorkton, Dr. Mirchandani is the Chief Psychiatrist, the sole psychiatrist and the Senior Psychiatrist. It is not because he wants to be. There is simply no one else. Nor is the Chief Psychiatrist authorized to monitor psychiatrists in each District. The Chief Psychiatrist has certain functions under the Medical Health Act. But monitoring other psychiatrists, in the supervisory and disciplinary sense, is done for these and all psychiatrists in Saskatchewan by the Saskatchewan College of Physicians and Surgeons. No one meets with the psychiatrist and patient. A Chief Psychiatrist may speak to another psychiatrist in some fashion, but he has no more power over a psychiatrist's duties than any other psychiatrist.

(q) the Payor provided a fully furnished work location including support staff and supplies;

Is true. But Dr. Marcoux also maintains a separate office for fee for service work.

(r) the Appellant was reimbursed for relevant expenses incurred;

(s) the Appellant did not have a chance of profit or a risk of loss;

Are true. But the psychiatrists were not reimbursed for all necessary expenses. Expenses for which Dr. Milev was not reimbursed included his car; parking; cellular phone; travel between his office; the hospital and the jail; liability insurance; licence fees; and continuing medical education to maintain his licence. He has no employment benefits. For a doctor who, for any reason, did not bill for many sessions in a year, such expenses could cause a business loss in a year.

B. ISSUES TO BE DECIDED

7. The issue to be decided is whether the Appellant was engaged under a contract of service with the Payor for the period January 1, 1999 to April 30, 1999.

[3] The classic judgment respecting employment in Canada is that of MacGuigan, J.A. of the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025 where he said at pages 5026 and 5027:

Case law has established a series of tests to determine whether a contract is one of service or for the provision of services. While not exhaustive the following are four tests most commonly referred to:

(a) The degree or absence of control, exercised by the alleged employer.

(b) Ownership of tools.

(c) Chance of profit and risk of loss.

(d) Integration of the alleged employees' work into the alleged employer's business.

...

Perhaps the best synthesis found in the authorities is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732, 738-9:

The observations of Lord Wright, of Denning L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service.

[4] This judgment does not refer to the classic question of contract law. That is: "What is the intention of the parties to the contract?" In these cases the psychiatrists and the Payors are in equal bargaining positions. The evidence is clear that Saskatchewan is actively and constantly recruiting psychiatrists abroad. (Dr. Milev, a recent recruit, has already been sent back to the U.K. to recruit psychiatrists.) Moreover, outside of Saskatoon, there is a shortage of psychiatrists and Districts' budgets for psychiatrists' remuneration are not having to be paid out because psychiatrists are not accepting offers to work there. The services are not occurring. The result of this is that (as already described) the Districts offer psychiatrists three options from which they can choose:

1. A salaried employment with the full rights and duties of employment.

2. The sessional contract described which these psychiatrists have chosen; or

3. A fee for service contract in which the psychiatrist sets up his own office.

Similar choices of contract are not uncommon today in other professions, trades and callings such as managerially skilled persons or business or trade specialists.

[5] In Dr. Milev's contract (Exhibit A-1, Tab 5) he agrees to provide his services to the Board in both its introduction and in subparagraph 2(a). In (ii) of subparagraph 3(a) the patients are referred to as clients of the Board. On the other hand, Dr. Milev indemnifies the Board against, in essence, his malpractice in subparagraph 7(b). The other psychiatrists' contracts had similar clauses. Thus, while the psychiatrists' duties were to the patients, they acknowledged that the patients were clients of the Boards.

[6] On page 5027 of Wiebe Door Services Ltd. v. Her Majesty the Queen, 87 DTC 5025, the Court applied the four tests on the facts in front of them as follows:

Firstly: The Control Test

The workers worked mostly on their own. They were free to accept or refuse a call. They were not required to work or attend at the Appellant's place of business, except to pick up a door or parts. The Appellant did exercise some measure of control over the workers. Firstly, the Appellant assigned the jobs to the installer. The job was guaranteed for one year. Within that time the Appellant would require the installer to correct any faulty or defective installation or repair. On the basis of the Control Test, the evidence is indecisive.

So far as can be determined, in the instant cases, these findings of the Federal Court of Appeal are correct except for the sentences "the job was guaranteed for one year. Within that time the Appellant would require the installer to correct any faulty or defective installation or repair", and that for the most part, the psychiatrists worked in the Payors' premises.

Secondly: Ownership of Tools

Each worker owned his own truck and tools. The Appellant provided only the special racks for transporting doors and the special cement drill, when required. On the basis of this test, the workers would seem to be independent contractors.

In the instant case the Payors provided the psychiatrists with premises and equipment except for each doctor's car; parking; cellular phone; travel between his office, the hospital and the jail; liability insurance; license fees and continuing medical education to maintain his license. No employment benefits were supplied by the Payors, such as pension or sick leave.

Thirdly: Chance of Profit or Risk of Loss

Each worker had a limited chance of profit. He got paid by the job. If he worked quickly and efficiently he could do more jobs per day if these were available. If on the other hand he was careless and did not properly complete the job, he would be required at his own expense as to gas, parts and services to redo or correct his work. On the basis of this test the workers would seem to be independent contractors.

On the evidence in this case, the psychiatrists were paid whether they worked quickly and efficiently or not. In the event that a patient required repetitive treatments or did not appear for appointments, the doctor was paid for the time in any event. Thus, if he wanted to work the sessions and if patients came either to the district clinic office to see the doctor or came to the clinic and were assigned by the clinic to see the doctor, the doctor could bill the district for sessions.

Fourthly: The Integration Test

The Appellant was in the business of servicing and installing overhead electrically controlled doors. All the work performed by the installers formed an integral part of the Appellant's business. Without the installers, the Appellant would be out of business.

In Stevenson Jordan et al vs. MacDonald and Evans, (1951) T.L.R. 101 at page 111, Lord Denning put forth his often repeated test in these words:

One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business: whereas, under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it.

Lord Denning's test has been applied and followed in our Courts on many many occasions. In the case before me, this test tips the scales in favour of a contract of service, and not a contract for services.

This appeal is therefore dismissed, and the determination of the Respondent is upheld.

The work performed by the psychiatrists under their contracts with each Payor formed an integral part of the Payor's business. Without the psychiatrists, the District clinics could not offer psychiatric services in their premises. Nonetheless the Districts offered other medical services and if, as can easily be imagined and may very well be the case, a District in Saskatchewan did not have a psychiatrist under a sessional contract, then it could still offer the services of other doctors for other purposes. In addition, it might have a psychiatrist in the District office under a contract of employment or there might be a fee for service psychiatrist situated in another premises in the District or outside of the District to whom it could refer medical patients.

At page 5029 MacGuigan, J.A. expanded upon the integration test or the "organization" test as follows:

The organization test was approved by the Supreme Court of Canada in Cooperators Insurance Association v. Kearney, [1965] S.C.R. 106, 112, where Spence J. for the Court quoted with approval the following passage from Fleming, The Law of Torts (2nd ed. 1961) 328-9:

Under the pressure of novel situations, the courts have become increasingly aware of the strain on the traditional formulation [i.e., the control test], and most recent cases display a discernible tendency to replace it by something like an "organization" test. Was the alleged servant part of his employer's organization? Was his work subject to co-ordinational control as to "where" and "when" rather than to "how"?

As Bendel points out, supra, at p. 381, the organization test is now "firmly established in Canada." He explains its attractiveness as follows, supra, at p. 382:

The aspect of the organization test which makes it so attractive in the labour relations context is that integration into another person's business, the key feature of the test, is a very useful indicator of economic dependence. The relationship between integration and economic dependence has been explained this way by the Ontario Labour Relations Board (in a case predating the Ontario dependent contractor amendments):

The essence of operating a business is holding out to a market society the availability of goods and services at the best possible price having regard to competing pressures exacted upon a particular market. It seems patently obvious to this Board that a particular business will not flourish in circumstances where growth is totally integrated with the operations of a particular customer. The essence of resolving and distinguishing the contractor from employee is his independence. . .In instances where the driver's means of financial support is [sic] inextricably bound up with the respondent we are of the view that he cannot be considered an independent contractor.

The organization test has recently been described by MacKinnon A.C.J.O. for the Ontario Court of Appeal as an enlargement of, and presumably an advance upon, Lord Wright's test: Mayer v. J. Conrad Lavigne Ltd.(1979), 27 O.R. (2d) 129, 132. However, it has had less vogue in other common-law jurisdictions. In fact A. N. Khan, Who is a Servant? (1979), 53 Austr. L.J. 832, 834, makes bold to say of the English and Australian cases:

However, the "integration" or "organisation" test if applied in isolation can lead to as impractical and absurd results as the control test. The courts, therefore, came to the conclusion that a "multiple" test should be applied, in that all the factors should be taken into account. Thus in Morren v. Swinton & Pendlebury Borough Council [[1965] 1 W.L.R. 576]. Lord Parker C.J. stated that the control test was perhaps an over-simplification. His Lordship added that: "clearly superintendence and control cannot be the decisive test when one is dealing with a professional man, or a man of some particular skill and experience." Thus the courts started modifying and transforming the test into "common sense" test, [Somervell L.J. in Cassidy v. Minister of Health, [1975] 2 K.B. 343] or "multiple" test [Mocatta J. in Whittaker v. Minister of Pensions & National Insurance [1967] 1 Q.B. 156].

Professor Atiyah, supra, at pp. 38-9, ends up with Lord Wright's test from the Montreal Locomotive Works case, as he finds it more general than Lord Denning's, which he sees as decisive in only some cases.

[Analysis]

I am inclined to the same view, for the same reason. I interpret Lord Wright's test not as the fourfold one it is often described as being but rather as a four-in-one test, with emphasis always retained on what Lord Wright, supra, calls "the combined force of the whole scheme of operations," even while the usefulness of the four subordinate criteria is acknowledged.

The quotation from Khan stating that "clearly superintendence and control cannot be the decisive test when one is dealing with a professional man" is a crucial problem in this case. That is why each psychiatrist indemnifies the District against malpractice in his contract.

[7] On the evidence, when one of the Appellants was working under his sessional contract he worked, except when working in a jail, in facilities operated by the Payor. His appointments were made by staff of the Payor. His assistant staff was paid by or through the Payor. Like an hourly worker, his recorded hours of work were remunerated by the Payor. While they did not say so, the references by the psychiatrists to the fact that they wanted other staff available when seeing patients, whether they be psychiatrists or other persons, relates to the current problems of liability and complaints that seem to pervade various professions; nonetheless this need means that District clinic staff of one kind or another have to be available when patients are seen.

[8] Looked at objectively, by a patient or some other person in the community, the psychiatrists, when working pursuant to their sessional contracts, appeared to be employed as part of the clinic business and their work was done as an integral part of the clinic business. They were not performing these services as persons in business on their own account. Rather they were performing them as integral staff of the clinics who were their Payors. Therefore, the appeals are dismissed.

Signed at Ottawa, Canada this 9^th day of May 2000.

"D.W. Beaubier"

J.T.C.C.