Date:
20071024
Dockets: A-36-07
A-37-07
A-38-07
A-39-07
A-40-07
A-41-07
A-42-07
A-43-07
Citation: 2007 FCA 334
CORAM: SEXTON J.A.
SHARLOW J.A.
RYER J.A.
BETWEEN:
Docket: A-36-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND
BETWEEN:
Docket: A-37-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-38-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-39-07
GINGER HODGKINSON
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-40-07
1536378 ONTARIO LIMITED
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-41-07
KRISTA M. HUNTER O/A (KRISSY’S PET
GROOMING)
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-42-07
GINGER HODGKINSON
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-43-07
KRISTA M. HUNTER O/A KRISSY’S PET
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
Heard at Toronto,
Ontario, on October 24,
2007.
Judgment delivered from the Bench at Toronto, Ontario, on October 24, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON
J.A.
Date:
20071024
Dockets: A-36-07
A-37-07
A-38-07
A-39-07
A-40-07
A-41-07
A-42-07
A-43-07
Citation: 2007
FCA 334
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
Docket: A-36-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND
BETWEEN:
Docket: A-37-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-38-07
1536378 ONTARIO LIMITED O/A B-PRO
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-39-07
GINGER HODGKINSON
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-40-07
1536378 ONTARIO LIMITED
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-41-07
KRISTA M. HUNTER O/A (KRISSY’S PET
GROOMING)
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-42-07
GINGER HODGKINSON
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
AND BETWEEN:
Docket:
A-43-07
KRISTA M. HUNTER O/A KRISSY’S PET
GROOMING
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on October 24, 2007)
SEXTON J.A.
[1]
These
are appeals by 1536378 Ontario Limited (operating as B-Pro Grooming) and Ginger
Hodgkinson and Krista M. Hunter (the appellants) of the decision of MacLatchy,
D.J. of the Tax Court of Canada, dated December 20th, 2006 relating to
eight appeals (Court File Nos. A-36-07, A-37-07, A-38-07, A-39-07, A-40-07,
A-41-07, A-42-07, and A-43-07). All eight of the proceedings before the Tax
Court were heard on common evidence and culminated in one set of reasons.
Similarly, these reasons will apply to all of the appeals.
[2]
The
common issue in respect of all eight appeals is whether certain groomers were
employees or independent contractors of B-Pro Grooming.
[3]
B-Pro
Grooming is in the business of pet grooming. The groomers that were hired, at
the insistence of Barbara Hodgkinson, the President and sole shareholder of
B-Pro Grooming, were first required to register as a business. The groomers
would then sign a contract with B-Pro Grooming, where the parties to the
contract would be B-Pro Grooming and the groomer’s business. The contracts
stipulated that the groomers would be paid at a flat rate per day. In order to
be paid, the groomers would have to submit invoices to B-Pro Grooming. Because
the groomers were paid a flat fee per day, the number of dogs groomed had no
bearing on how much they were paid.
[4]
The
appellants argue that the Tax Court Judge erred in concluding that the groomers
were employees of B-Pro Grooming, and not independent contractors.
[5]
The
conclusion of whether someone is an employee or an independent contractor is a
question of mixed fact and law, in that it involves the application of a legal
test to a set of facts. As such, the standard of review is one of palpable and overriding error, unless an extricable error of law
can be identified, in which case a standard of correctness is used (Housen
v. Nikolaisen, [2002] 2 S.C.R. 235 at paragraphs 27-28).
[6]
The appellants argue that the Tax Court Judge
failed to completely articulate a test to determine if a worker is an
independent contractor or an employee. We would note that the Supreme Court of
Canada has stated that there is no such conclusive test. As Major J. noted in 671122
Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, at
paragraphs 47-48:
Although
there is no universal test to determine whether a person is an employee or an
independent contractor, I agree with MacGuigan J.A. that a persuasive approach
to the issue is that taken by Cooke J. in Market Investigations, supra.
The central question is whether the person who has been engaged to perform the
services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the
worker's activities will always be a factor. However, other factors to consider
include whether the worker provides his or her own equipment, whether the
worker hires his or her own helpers, 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 in the performance of his or
her tasks.
It bears
repeating that the above factors constitute a non-exhaustive list, and there is
no set formula as to their application. The relative weight of each will depend
on the particular facts and circumstances of the case.
[7]
The
Tax Court Judge examined the whole relationship that existed between the
parties. He looked at the control over the workers by the employer. He also
examined whether the workers provided their own equipment, the degree of
investment involved and the financial risk taken by the workers, the
responsibility for investment and management by the workers, and the
opportunity for profit or risk of loss in the performance of the tasks of the
workers. He noted that the expressed intention of the parties is not
determinative of their relationship. He concluded that the groomers were
“clearly integrated” into B-Pro Grooming’s business, and that the groomers did
not operate their own business.
[8]
In
looking at his reasons, as well as the evidence presented before him, we are
unable to find any overriding and palpable error in the findings of the Tax
Court Judge.
[9]
In
the alternative, the appellants argue that the Tax Court Judge should have
found two of the three groomers – Ginger Hodgkinson and Krista M. Hunter – to
be independent contractors. The supposed logic in the appellants’ argument is
that the situation for Christine Ross, another groomer who intervened and
maintained that the groomers were employees, may have been different than for
Ginger and Krista, given their testimonies. It should be noted, however, that the
Tax Court Judge found Christine Ross’ testimony to be “quite convincing
concerning the question of control.” That is, Christine’s testimony applied
not only to B-Pro Grooming’s control over herself, but also Ginger and Krista.
Based on this finding of fact, and given that the other factors applied to all
three groomers, we are unable to distinguish Ginger and Krista’s relationship
with B-Pro Grooming from Christine’s.
[10]
The
appeals will be dismissed with costs.
[11]
A copy of
this decision will be placed in each file, and file A-36-07 will retain the
original.
“J.
Edgar Sexton”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-36-07,
A-37-07, A-38-07, A-39-07, A-40-07,
A-41-07,
A-42-07, A-43-07
(APPEAL
FROM A JUDGMENT OF THE TAX COURT OF CANADA, DATED DECEMBER 20, 2006, HEREBY THE
TAX COURT DETERMINED THAT THE APPELANT WAS AN EMPLOYEE. TAX COURT NUMBER:
2006-684-(EI) 685, 687, 688, 504, 505, 682, 683)
STYLE OF CAUSE: 1536378
ONTARIO LIMITED O/A B-PRO GROOMING v. THE MINISTER OF NATIONAL REVENUE
AND
BETWEEN
GINGER
HODGKINSON v. THE MINISTER OF NATIONAL REVENUE
AND
BETWEEN
1536378
ONTARIO LIMITED v. THE MINISTER OF NATIONAL REVENUE
AND
BETWEEN
KRISTA
M. HUNTER O/A (KRISSY’S PET GROOMING) v. THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: OCTOBER 24, 2007
REASONS FOR JUDGMENT
OF THE COURT BY: (SEXTON, SHARLOW & RYER J.J.A.)
DELIVERED FROM THE BENCH BY: SEXTON J.A.
APPEARANCES:
|
MR. JEFFREY RADNOFF
|
FOR
THE APPELLANT
|
|
MR. MARTIN BEAUDRY
MS.
MARGARET NOTT
|
|
SOLICITORS
OF RECORD:
|
RADNOFF LAW OFFICES
BARRISTERS
AND SOLICITORS
TORONTO, ONTARIO
|
FOR THE APPELLANT
|
|
JOHN H. SIMS, Q.C.
DEPUTY
ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO
|
FOR THE RESPONDENT
|
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