Date: 20051216
Docket: T-1089-04
Citation: 2005 FC 1702
BETWEEN:
DELAWARENATION
(MORAVIAN OF THE THAMES)
Applicant
and
GEORGINADOREEN LOGAN, REFEREE PETER BARTON and
THE MINISTER OF HEALTH AND LONG-TERM CARE FOR ONTARIO
Respondents
REASONS FOR ORDER
PHELAN J.
BACKGROUND
[1] The Delaware Nation (the "Band"), a native band, seeks judicial review of a decision by Referee Peter Barton ("Referee"), appointed under the Canada Labour Code, holding that Georgina Doreen Logan ("Logan") was an employee of the Band and entitled to $192,000 for overtime pay and interest.
FACTS
[2] The Band operated a Homemakers program which was funded by the Ontario and federal governments. It was governed by the Homemakers and Nurses Services Act, R.S.O. 1990, c. H. 10 and its regulations.
[3] For 13 years Logan provided homemaking services for her son who had been injured in an accident. She was paid on the basis of 12 hours per day, seven days per week. No overtime was paid. This arrangement continued from November 1987 to November 2000.
[4] In November 2000, the Province of Ontario sent an assessor to review the circumstances of Logan's homecare. The assessor concluded that Logan's son was only entitled to 13 hours of homecare per week - despite a doctor's opinion that he needed full-time care.
[5] On December 2, 2000, Logan filed a complaint under Part III of the Canada Labour Code ("Code") asserting that she was an employee of the Band since 1987 and, as such, was entitled to retroactive benefits and wages.
[6] Initially, an Inspector under the Code, an official of Human Resources and Skills Development Canada, dismissed Logan's complaint and held her not to be an employee. Peter Barton was appointed as a referee under the Code to adjudicate the dispute arising from Logan's complaint.
[7] To add a bit more confusion to the circumstances, Logan was entitled to file for a refund of employment insurance premiums because she was held not to be an employee and not required to pay EI premiums.
[8] By a decision dated June 20, 2003, Barton allowed Logan's appeal of the Inspector's decision that she was not an employee of the Band. In finding that Logan was an employee of the Band, Barton considered 28 factors in reaching this conclusion. The factors are:
1. DN approves the person who provides the service, and keeps a list of those interested. Implied in the power to approve is the power to disapprove, although there was no evidence that this has been done.
2. The client applies to DN.
3. There is no formal discipline mechanism for homemakers.
4. The Personnel Policy of DN describes Homemakers as employees in a different category than those covered by the Policy. It does not say who their employer is.
5. Training and education are done by others, although DN may pay for it.
6. There seems not to be any evaluation system in place.
7. The Province subsidizes the program up to 80 % only.
8. During the relevant time, time sheets went to DN.
9. Cheques for payment issued by DN included normal employee deductions such as EI, vacation pay, insured benefits.
10. Homemakers were offered the pension for 'employees' and described by London Life as employees of DN.
11. Compassionate and bereavement leave were provided by DN.
12. DN supplied a bed, rails and a wheelchair to Ms. Logan.
13. DN decided, with help from a physician, how many hours to fund. In the case of Ben, Dr. Singh said 'around the clock'. DN assigned twelve per day.
14. DL could work on a flexible schedule.
15. If she needed help, she could seek it herself.
16. DN provided others as fill-ins where required.
17. DN would pay expenses for trips to London.
18. Vacations and Holidays were not taken.
19. Qualifications were set by the Province.
20. Standards of service were set by the Province.
21. There is no evidence that the Province ever checked on the services provided, by way of inspections, until late 2000.
22. The per hour remuneration was set by the Province and included an amount for benefits and pay equity.
23. The people at EI determined that DL was not an employee.
24. The cancellation by EI of its claim to payback by DL was made for a reason not disclosed to me.
25. In its Applications for Reimbursement, DN described Homemakers as its employees.
26. There was no contract in writing between Homemakers and DN.
27. The Chief and in particular the Band Administrator considered DN not to be the employer, when they thought of it. There was little need to do so until the arrival of the Assessor.
28. The Province in its correspondence with DN described homemakers as 'employed by the Band'.
[9] In discussing the legal principles related to the determination of Logan's status, Barton made the following observations:
Courts have grappled with the distinction between employee and independent contractor and have come up with tests described as the control test, the organization or integration test, a multiple test, and a comprehensive test. These titles, while useful, describe an approach which looks at the full relationship between the relevant parties, and are usually derived from a relationship that is commercial at its heart. Thus, control is often a key element. The more one has control over the relevant activity of the other, the more likely is the other to be an employee.
[10] In applying the legal principles to these specific facts, Barton observed:
Many factors point to DN as the employer of Ms. Logan, rather than to her as an independent contractor. These include # 1,7,9,10,11,12,13,16,17,21,25,28. Of particular strength in this equation is the fact that the Province describes the reimbursement as a subsidy, and only goes as high as 80 % of total cost. Although neutral as between DN and DL, it points toward DN as the person in charge of the provision of the services. This factor does not seem to have been raised before the Inspector. In addition, with the exception of the language in the Personnel Policy, homemakers were treated in writing by the Delaware Nation as employees, they paid deductions as employees, received benefits as employees, and, in the case of Ms. Logan, were described as employees in a Record of Employment. They did not get much supervision from DN except through the Welfare Administrator, but the Province provided none. In terms of the 'provision of tools', language used in independent contractor-employee cases, that seems a clumsy test when applied to homemakers. I note that DN did provide a bed, rails and a wheelchair. The test of 'chance of profit - risk of loss' does not apply to this case involving care for those in need by persons close to them in the community. The majority of factors seems to point to her being an employee of DN. She does not seem to have had the freedom of action possessed by independent contractors. She was integrated into the administrative framework of DN.
The decision should not be made just on the basis of listing and counting factors, however. A more global approach would set those factors into the context of the type of work done, where it was done and the degree of involvement of DN and the Province in her work. What does a look at the overall picture of her working relationship with DN reveal?
...
Because of the reasons mentioned above, I find that the overall picture shows that during the relevant period she was employed by the Delaware Nation. I disagree with the assessment of those at E.I. It was based upon information from the Inspector. I disagree also with the decision of the Inspector. I had the advantage of hearing oral evidence from several people as well as seeing documents not before her.
ANALYSIS
[11] The issues in this case are:
(a) What is the appropriate standard of review?
(b) Did Barton identify the correct legal principles applicable to the determination of whether Logan was an employee of the Band?
(c) Did Barton apply those principles to the facts in a legally sustainable manner?
(d) Did Barton err in his decision regarding the absence of any limitation period in respect of Logan's entitlement to overtime?
Standard of Review
[12] In my view, it is well settled law that in respect of a referee's decision under the Code, the standard of review on matters of law is correctness and on matters of fact or mixed law and fact the standard is reasonableness simpliciter. See Dynamex Canada Inc. v. Mamona et al, [2003] F.C.J. No. 907 (FCA). Given that decision, this Court need not engage in the pragmatic and functional analysis of this type of decision.
Legal Principles
[13] The parties agree that legal test and approach to the determination of whether a person is an employee or an independent contractor has been set forth in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue - M.N.R.), [1986] 3 F.C. 553.
[14] A decision made on the nature of the working status must look to see whether a person is engaged in performing services in his/her business on his/her own account. There are a number of factors, but not an exhaustive one, to be considered:
· the level of control over the worker's activities;
· the provision of equipment to or by the worker;
· the hiring of others by that worker;
· the degree of financial risk taken by the worker;
· the degree of responsibility for investment and management held by the worker; and
· the worker's opportunity for profit.
[15] In Wiebe, above, the Federal Court of Appeal held that "what must remain of the essence is the search for the total relationship of the parties". There is no formula and the relative weight of each factor will depend on the particular facts and circumstances of the case.
[16] As the quotes previously cited from his decision indicates, Barton was aware of and applied the correct legal principles.
Application of Law to Facts
[17] The main issue in this judicial review is whether Barton applied the legal principles properly to the facts. The Applicant's burden was to establish that Barton's consideration of the facts was unreasonable.
[18] A review of the decision taken, both factor by factor and as a whole, does not establish that decision in whole or its important parts is unreasonable.
[19] The Applicant referred the Court to Family Services Perth-Huron v. Canada(Minister of National Revenue - M.N.R.), [2000] T.C.J. No. 2 (Tax Court) as indicating that Barton reached an unreasonable conclusion. In that case Justice Rip of the Tax Court concluded that a person performing many of the activities of Logan under a similar program was not an employee.
[20] In my view, the Family Services case is an indication that reasonable people can disagree as to the correct conclusion - each having reached a reasonable conclusion. Furthermore, each of these cases is fact specific and a finding in relation to one statutory scheme does not, a fortiori, mean that finding applies to different evidence produced in respect of another statutory scheme.
[21] An unreasonable decision has been described as "... one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it". See Canada(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at para. 56.
[22] Against this legal criterion, it is my view that Barton addressed the issue of the modern tripartite employment relationship involving government bodies, separate organizations and the worker. He also addresses a large number of factors, some favouring the Applicant, others favouring the Respondent, relating to Logan's status. His conclusion, on these facts, is reasonable.
[23] The Applicant alleges that Barton erred in fact on factors 1, 2, 12 and 13. Reading each of these findings in context, only factor 12 - the provision of equipment - is an error. While it is an error on a factor considered important in the determination of the relationship, it was not a factor of such weight that, decided correctly, it would have or should have changed Barton's conclusion.
Limitation Period
[24] The Applicant argued that Barton erred in not limiting the period for which overtime is due to the last three years. The Applicant's position is that since the Code imposes a three-year limitation period in respect of penalties and the Standards regulations requires employers to retain employment records for three years, Parliament must have intended a three-year limitation period on other claims. The Applicant further argues that it is only just and fair to impose a three-year limitation since the Band was not culpable in failing to pay overtime.
[25] In the face of the limitation period for specific matters such as penalties and document retention, the fact that Parliament has not seen fit to establish a more general limitation period suggests that it deliberately refrained from doing so. It is not the Court's function to create a limitation period.
[26] Even though the Band is not deliberately culpable in not paying overtime, the purpose of the legislation in this regard is to ensure that workers are paid what they are owed. It is not a fault based analysis.
[27] In the end, the responsibility for triggering the dispute may rest with the Ontario government in trying to effect cost savings measures and sending an assessor in to examine the program. The Respondent Logan is entitled to assert her rights to overtime for the whole period of her employment.
CONCLUSION
[28] Therefore, this application for judicial review will be dismissed with costs.
"Michael L. Phelan"
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