Dockets: A-191-14
A-192-14
Citation:
2015 FCA 68
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CORAM:
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PELLETIER J.A.
WEBB J.A.
BOIVIN
J.A.
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BETWEEN:
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LOVING HOME CARE SERVICES LTD.
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Appellant
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And
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MINISTER OF NATIONAL REVENUE
AND
LA-TOYA LANA BURT
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Respondents
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
These are appeals from the judgments of Boyle J.
(2014 TCC 71) issued in relation to the appeals of Loving Home Care Services
Ltd. (Loving Home Care) under the Employment Insurance Act, S.C. 1996,
c. 23 and the Canada Pension Plan, R.S.C., 1985, c. C-8. By an
Order dated June 18, 2014, the appeals in dockets A-191-14 and A-192-14 were
consolidated and the appeal filed in docket A-191-14 is considered the lead
appeal. These reasons shall be filed in A-191-14 and a
copy thereof shall be filed in A-192-14.
[2]
The issue before the Tax Court of Canada was
whether six individuals who were retained by Loving Home Care were providing
their services as employees or independent contractors. Boyle J. found that the
individuals were employees and Loving Home Care has appealed this finding.
[3]
Loving Home Care does not submit that the Tax
Court Judge applied the wrong legal test but rather argues that the Tax Court
Judge erred in making certain findings of fact. In particular Loving Home Care
submits that the Tax Court Judge should not have concluded that the schedule
that was attached to the unsigned agreement submitted for one worker (Ms. Burt)
was applicable to all of the workers. The schedule that was attached to the
forms of agreement for the other workers did not include all of the provisions
that were included in the schedule attached to the unsigned agreement for Ms.
Burt.
[4]
In Zsoldos v. Attorney General of Canada,
2004 FCA 338, [2004] F.C.J. No. 1658, paragraphs 11 and 12, this Court
confirmed that questions of fact in appeals, such as these appeals, under
subsection 27(1.2) of the Federal Courts Act, R.S.C., 1985, c. F-7 are
to be determined on the same standard of review as questions of fact determined
by the Tax Court of Canada under the General Procedure. Therefore, the standard
of review is that as set out by the Supreme Court of Canada in Housen v.
Nikolaisen, [2002] 2 S.C.R. 235. Questions of fact, which include
inferences of fact, are to be reviewed on the standard of palpable and
overriding error.
[5]
In this case, Loving Home Care introduced into
evidence six documents – one for each worker. The title of each document was “Loving Home Care Services Ltd. Subcontract Agreement”.
Five of the documents had a short Schedule “A” – Description of Duties and
Responsibilities that consisted of only three short paragraphs. Schedule “A”
that was attached to the document for Ms. Burt included an additional sentence
at the end of the first paragraph and two additional short paragraphs. Most of
the documents and Schedule “A” were signed by both parties.
[6]
The Tax Court Judge expressed his concerns with
respect to the agreements in paragraph 15 of his reasons:
15 The dating
of the agreements, whether signed or unsigned, is not clear or complete and remains
questionable. The Court's concerns with the dating of the agreements in
evidence was fully discussed by the Court with Appellant's counsel during the
hearing. The pre-printed fill in the blank agreement forms bear a date of 2010.
At least one suggested it was completed before that date. Some schedules' dates
do not align with the dates of the agreements they are appended to. Workers did
not all recall when they signed this agreement relative to when they started
working for Loving Home Care. Workers could not all provide clear or
satisfactory answers on the dating, signing and renewing of these agreements.
One worker had to change her clear and unequivocal answer to this question when
challenged in cross-examination. The agreements appear to have been
"renewed" at the request of Loving Home Care in 2012, except for that
of the Intervenor, Ms. Burt who had ceased working with Loving Home Care by
that time. The Rulings process in respect of the status of these workers arose
in 2012.
[7]
The inference, which is the issue in this
appeal, is drawn by the Tax Court Judge in paragraph 16 of his reasons:
16 The
notable and significant difference between Ms. Burt's agreement and the "renewed"
agreements of 2012 is that the provisions described above in vii) and viii)
dealing with scheduling non-work, family and vacation days, and the daily
reporting to Loving Home Care via the detailed log book, are not present in the
2012 schedules. Considering all of the evidence relating to these agreements
and their renewals, including my concerns below regarding witness credibility,
and considering the apparent spacing gap in the 2012 renewal schedules, the
Appellant has certainly not been able to satisfy the Court on a balance of
probabilities with satisfactory credible evidence that the agreements as
tendered to the Court were those in place in governing the relevant period. I
find that such agreements were not generally signed by Loving Home Care and its
workers prior to the commencement of work, were not necessarily completed or
signed when they said they were or at all, and in the cases of these
workers covered by the Rulings in issue, all included the same scheduled
provisions as Ms. Burt's during the relevant periods in question.
(emphasis added)
[8]
As a result of this inference the following additional
conditions were found to be in all of the agreements with the workers in
question:
•
The duties and the responsibilities are
described by the Contractor where they can be changed based on the job
description.
•
Any holidays and family events, the Contractor
requires a minimum of two weeks notice in writing.
•
The Subcontractor is responsible to update the
Contractor with the patient’s day to day events using the log book; including
health status, household management, and other relevant information.
[9]
Loving Home Care submits that the Tax Court
Judge committed a palpable and overriding error in concluding that these
conditions were in all of the relevant agreements.
[10]
In H.L. v. Canada, 2005 SCC 25; [2005] 1
S.C.R. 301, Fish J. writing on behalf of the majority of the Supreme Court of
Canada noted that:
74 I
would explain the matter this way. Not infrequently, different
inferences may reasonably be drawn from facts found by the trial judge to have
been directly proven. Appellate scrutiny determines whether inferences drawn by
the judge are "reasonably supported by the evidence". If they are,
the reviewing court cannot reweigh the evidence by substituting, for the
reasonable inference preferred by the trial judge, an equally - or even more -
persuasive inference of its own. This fundamental rule is, once again, entirely
consistent with both the majority and the minority reasons in Housen.
[11]
The onus in this case was on Loving Home Care to
establish, on a balance of probabilities, the applicable terms and conditions
for each worker. Failing to introduce sufficient evidence to do so does not mean
that Loving Home Care should be successful. Because the evidence was sparse and
inconsistent in relation to the agreements and what terms and conditions were
included in each agreement, the Tax Court Judge drew the inference referred to
above. I am not persuaded that the Tax Court Judge committed any error in doing
so as this inference is reasonably supported by the evidence. It is not the
role of this Court to reweigh the evidence and substitute another inference.
[12]
Counsel for Loving Home Care argued that had the
Tax Court judge not erred by finding that the Schedule “A” to the agreement for
Ms. Burt applied to all of the workers, he would not have drawn the conclusions
that he did from the evidence related to the factors as set out in Wiebe
Door Services Ltd. v. Canada (Minister of National Revenue), [1986] 3 F.C. 553. Given my conclusion on Schedule “A” I can
see no basis for questioning the Tax Court Judge’s conclusion with respect to
those factors.
[13]
As a result I would dismiss the appeal with
costs.
"Wyman W. Webb"
“I agree
J.D. Denis
Pelletier J.A.”
“I agree
Richard Boivin J.A.”
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