REASONS
FOR JUDGMENT
Boyle J.
[1]
These are my oral reasons in today's CPP and EI
appeals of Ms. Garfin. Ms. Garfin, I am dismissing your appeals for the
following reasons.
[2]
In determining whether or not Ms. Walker was
your employee or an independent contractor, I am required to follow the
analytic approach set out in Connor Homes by the Federal Court of Appeal
and to apply that. I had occasion to summarize my understanding of Connor
Homes in my decision of earlier this year in Loving Home Care Services
in paragraphs 3 to 11.
[3]
The applicable law in appeals such as these is
fully and clearly set out by the Federal Court of Appeal in Connor Homes.
I will not reproduce all of their paragraphs; the legal issue to be decided is
simply whether an individual worker is performing her services as her own
business on her own account.
[4]
This requires me to first decide whether
subjectively, based upon the facts, circumstances, and evidence in the
particular case there was a mutual understanding or common intention between
the parties regarding their relationship as either employment or independent
contractor.
[5]
At this stage, the Court can consider, among
other things, the extent to which a worker understood the differences between
an employment or independent contractor relationship, the relative bargaining
position strengths and weaknesses, and the extent to which such evidence, which
can typically be expected to be self‑serving, is corroborated by and
consistent with the other evidence placed before the Court.
[6]
The answer to this question is not
determinative. The parties cannot agree to the correct legal characterization of
their work relationship, as if it were just another term or condition of their
work relationship rights, obligations, duties, and responsibilities. A declared
and agreed intent to a particular characterization of the work relationship as
employment or independent contractor must in fact be grounded in a verifiable
objective reality.
[7]
If the parties do have a common agreed intended
characterization of their relationship, this Court must determine if the
overall objective working relationship sustains, and is consistent with, their
subjective intent. This second step requires the Court to consider and weigh
the traditional Sagaz and Wiebe Door factors of control over the
work and the worker, including the extent of subordination of the worker, the
provision of tools, material, credentialing and equipment needed for the worker
to do the work, and the extent of the worker's financial upside and downside
risks regarding the services provided by her.
[8]
In this second step, the Court may again
consider the parties' intent, along with the actual behaviour of the parties,
and any written agreement between them. In Royal Winnipeg Ballet the
Federal Court of Appeal had similarly said the traditional Sagaz and Wiebe
Door factors must be considered in the light of the parties' intent.
[9]
This second step is otherwise the same as how
the Court would proceed in cases where there is no common shared intention
regarding the characterization of the work relationship by the parties.
[10]
So, following that approach and applying it, I
will turn to intention first. To my mind the evidence is clear that the payor
lawyer, Ms. Garfin, intended the relationship to be an independent
contractor and not an employee. That is also true of her colleague, Ms. Amourgis,
who had a similar and contemporaneous but separate part‑time work
relationship with Ms. Walker in 2010.
[11]
I also conclude that Ms. Walker intended to
not be an employee but to be self-employed. I believe her understanding of what
that meant was not as complete as that of the two lawyers she worked for. However,
I believe she was aware of the important key distinctions. I do not accept that
her understanding or desired characterization changed, either in 2012 or
anytime before she left her position with Ms. Garfin and sought to collect
Employment Insurance and was told she would need a T4 and a Record of Earnings.
[12]
Weighing what evidence there was in this case on
intention is difficult given no written contract was put in evidence, nor am I
even sure one was entered into. The fact Ms. Walker has never filed tax
returns for the years in question doesn't help either.
[13]
Turning to control, in this case as in many I
find that considerations of control are particularly relevant and helpful. The
Federal Court of Appeal in City Water reminds us to focus more on
control over the worker than control of the quality of work done. It also
mentions the concept of an employee being one in a subordinate position to the
payor. The Federal Court of Appeal in D&J Driveway acknowledges the
particular importance of control considerations in many cases.
[14]
Ms. Walker's position was that of legal
assistant to Ms. Garfin. That position had Ms. Walker doing what Ms. Garfin
asked to be done at any time. There was no evidence to suggest this was not
within the range of services, responsibilities, and requirements normally
associated with being a lawyer's administrative assistant. I conclude Ms. Walker
was expected to do what she was asked or told when she was asked or told to do
it.
[15]
The balance of the evidence is that her generally
expected work availability and hours were nine to five, Monday to Friday,
subject, of course, to the ups and downs and tos and fros of a law office, and of
having personal lives.
[16]
I conclude that the degree of control that Ms. Garfin
had expected and regularly exercised over Ms. Walker leans quite strongly
toward an employment relationship.
[17]
Turning to tools, I do not consider ownership of
tools a very helpful consideration in the case of a legal or administrative
assistant role performed in the manner required in Ms. Garfin's office of
this worker. There were no significant tool or similar items or qualifications
expected of Ms. Walker, nor would they be any different if the person
fulfilling Ms. Garfin's position was provided by an employee, a freelancing
independent contractor, or a placement agency person.
[18]
In my opinion, the tools consideration does not
lean in either direction in this case.
[19]
Turning to chance of profit and risk of loss, Ms. Garfin
conceded these financial risk and reward considerations lean in this case
towards employee status for Ms. Walker. Certainly in the case of a fixed
hourly rate worker with no associated expenses, it does not lean in favour of
independent contractor running her own business in this case.
[20]
I believe this case is somewhat similar to the Wilford
law clerk case decided by Deputy Justice Wiseman as it relates to profit and
loss and whether the worker was running her own business. This consideration is,
at best, equal or not helpful to me to decide this case.
[21]
For these reasons, I conclude on balance that
Ms. Walker was Ms. Garfin's employee in 2012.
Signed at Ottawa, Canada, this 7th day of November 2014.
“Patrick Boyle”
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