Date:
20020503
Dockets:
2001-4415-EI,
2001-4416-CPP
BETWEEN:
PATRICK
GROULX,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Reasons
for Judgment
Bowman,
A.C.J.
[1]
These appeals are from decisions of the Minister of National
Revenue that during the periods of September 5, 2000 to
December 7, 2000 and January 9, 2001 to April 12,
2001 Mr. Groulx was employed in insurable and pensionable
employment within the meaning of the Employment Insurance
Act (the "EIA") and the Canada Pension
Plan (the "CPP").
[2]
During the periods in question Mr. Groulx was engaged as a
part-time teacher of computer science at Seneca College of
Applied Arts & Technology ("Seneca College"). He
taught six hours a week, two nights a week. He designed his own
courses and set and marked the exams. The design of courses and
setting of exams was done on his own time and he was not paid any
additional amount.
[3]
He was contractually prohibited from working more than six hours
per week evidently because if he worked more than six hours per
week he would have been obliged to belong to the teachers'
union.
[4]
Seneca College supplied the classrooms and the computers. The
appellant developed the software on his own time and supplied
it.
[5]
The following are assumptions upon which it is said the decisions
were based:
(a)
the Payer is an Ontario Government Crown Corporation;
(b)
the Payer is an educational institution (Public
College);
(c)
the area of the College involved in the Appeal is the
"Faculty of Continuing Education &
Training";
(d)
the Payer operates on a semester system and contracts are signed
for each term;
(e)
the Appellant was hired as a teacher under a written agreement
for each period in question (Tab 1 and 2);
(f)
per the agreement, the Payer reserves the right to cancel any
assignment for insufficient number of registrants and the
Appellant would not be paid for the cancelled
assignments;
(g)
per the agreement, the Appellant had to follow many conditions
such as:
-
adhere to the College Policy and procedures
-
follow the curriculum designs and objectives described in the
Program Information Package
-
contact the Department one week ahead of the start date to
determine subject status
-
begin and end classes as scheduled
-
inform the Department of any changes
-
inform of any absences from class or rearrangement of
assignment
-
submit a draft of the final exam for approval
-
submit the final exam and grades breakdown record according to
procedure
-
attend the mandatory promotion meeting
-
report student or classroom concerns
(h)
per the agreement, the appellant was paid $37.75 per hour for the
first period in question and $39.75 per hour for the
second;
(i)
per the agreement, the Appellant was paid on a bi-weekly basis by
direct deposit;
(j)
the Appellant's rate of pay was determined by the
Payer;
(k)
per the agreement, the Appellant cannot work more than 6 hours a
week;
(l)
the Appellant's hours of work were determined by the
Payer;
(m)
the Worker was supervised by Jake Atteslander, the course
coordinator;
(n)
the Appellant was covered by the Worker's
compensation;
(o)
the Payer maintained the right to terminate the Appellant's
services;
(p)
the Payer provided all tools and equipment at no cost to the
Appellant;
(q)
the Appellant had to perform his services personally;
(r)
the work performed by the Appellant was integral to the
Payer's business.
[6]
The conditions set out in paragraph (g) of the assumptions are
taken from the Part-Time Faculty Employment Agreement. What was
not reproduced was the following provision which immediately
precedes the list of conditions reproduced above.
This a
one semester contract for the dates specified on
the reverse side of this agreement. The College reserves the
right to cancel any assignment already agreed to by the parties
due to:
a)
insufficient numbers of registrants (as determined by the
College), or
b)
lack of adequate facilities for implementation.
The faculty
member will receive no payment for these cancelled
assignments.
The College
reserves the right to cancel this contract for reason of cause,
failure to attend, or unsatisfactory job performance.
[7]
Many of the assumptions are the usual boilerplate that we see in
all of these EIA and CPP cases where the issue is
whether a person is engaged under a contract of service or a
contract for services. The traditional four-in-one test
enunciated in Wiebe Door Services Ltd. v. M.N.R., [1986]
2 C.T.C. 200, is a useful starting point provided that
one is careful to avoid an undue emphasis on any one aspect of
the test. However one can start with the Wiebe Door test
and see where it takes us bearing in mind the admonition that one
must look at the relationship as a whole, and determine, as
Cooke J. said in Market Investigations, Ltd. v. Minister
of Social Security, [1968] 3 All E.R. 732 at
737-738, and quoted by Major J. in 671122 Ontario Ltd. v.
Sagaz Industries Canada Inc., 2001 SCC 59, the
question "Is the person who has engaged himself to perform
these services performing them as a person in business on his own
account?"
[8]
The quotation from Cooke J. continues:
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. No exhaustive list has been
compiled and perhaps no exhaustive list can be compiled of
considerations which are relevant in determining that question,
nor can strict rules be laid down as to the relative weight which
the various considerations should carry in particular cases. The
most that can be said is that control will no doubt always have
to be considered, although it can no longer be regarded as the
sole determining factor; and that factors, which may be of
importance, are such matters as whether the man performing the
services provides his own equipment, whether he hires his own
helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and whether
and how far he has an opportunity of profiting from sound
management in the performance of his task.
[9]
Major J. then quotes from the decision of
MacGuigan J.A. in Wiebe Door at
paragraph 46:
[I]t is exceedingly doubtful whether the search for a formula in
the nature of a single test for identifying a contract of service
any longer serves a useful purpose.... The most than can
profitably be done is to examine all the possible factors which
have been referred to in these cases as bearing on the nature of
the relationship between the parties concerned. Clearly not all
of these factors will be relevant in all cases, or have the same
weight in all cases. Equally clearly no magic formula can be
propounded for determining which factors should, in any given
case, be treated as the determining ones.
[10] Applying
these criteria I have great difficulty in seeing how
Mr. Groulx is an employee of Seneca College. He comes in
twice a week and is paid an hourly rate. His preparation is done
on his own time and is unremunerated. He is in no sense
integrated into the activities of the college, as are the
full-time teachers. He does not belong to the teachers'
union, he does not participate in the health plan or the pension
plan as are the full-time teachers. He is not provided with
parking and has no access to the recreational facilities, such as
the gymnasium as are the full-time teachers. He determines the
course content and what he teaches. The full-time teachers have
offices supplied by the college and are given paid time for
preparation. Mr. Groulx has no office and prepares on his
own time without pay. He is not supervised. I do not see that the
college exercises any meaningful degree of control over him - he
is, after all, a highly qualified professional with a BSc from
Simon Fraser University and an MBA from University of Western
Ontario. He is also a chartered accountant. His part time
teaching is only one of a number of enterprises in which he is
engaged.
[11] He is
therefore neither controlled by Seneca College nor integrated
into its system, so that even on a somewhat mechanical
application of the four-in-one test of Wiebe Door, he does
not meet two of the criteria. So far as the other two are
concerned, it is true the college supplies the classrooms and the
aging computers. Mr. Groulx provides the software. The
chance of profit/risk of loss test is hard to apply to a
part-time teacher and it would be a very fragile reed on which to
base a finding of employment.
[12] I prefer
however to step back from the minutiae of the tests and ask,
looking at the relationship as a whole, "Can it be said that
this part-time teacher who comes in twice a week, is not part of
the body of full-time teachers, prepares and provides the
software on his own time, designs the courses and teaches and
sets exams as he sees fit, is essentially not controlled by
anyone and can ask someone else to substitute for him, is in any
traditional sense an employee?" The answer in my view is
"No". One of the striking inconsistencies with a
traditional employer-employee relationship is that contained in
the portion of the contract quoted in paragraph 6 of these
reasons that if there are insufficient registrants the college
can cancel any assignments already agreed to and the faculty
member will receive no payment for a cancelled assignment. This
is inconsistent with an employer-employee
relationship.
[13] The appeals
are allowed and the decisions that the appellant was employed in
insurable and pensionable employment are reversed.
Signed at
Ottawa, Canada, this 3rd day of May 2002.
A.C.J.COURT
FILE
NOS.:
2001-4415(EI), 2001-4416(CPP)
STYLE OF
CAUSE:
Between Patrick Groulx and
The Minister of National Revenue
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
April 23, 2002
REASONS FOR
JUDGMENT BY: The Honourable D.G.H.
Bowman
Associate Chief Judge
DATE OF
JUDGMENT:
May 3, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Eric Sherbert, Esq.
COUNSEL OF
RECORD:
For the
Appellant:
Name:
--
Firm:
--
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4415(EI)
2001-4416(CPP)
BETWEEN:
PATRICK
GROULX,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeals
heard on April 23, 2002, at Toronto, Ontario, by
The
Honourable D.G.H. Bowman
Associate
Chief Judge
Appearances
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Eric Sherbert, Esq.
JUDGMENT
It is ordered that the appeals from the decisions made under the
Employment Insurance Act and the Canada Pension
Plan be allowed and the decisions be reversed.
Signed at
Ottawa, Canada, this 3rd day of May 2002.
A.C.J.
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