Citation: 2008TCC592
Date: 20081028
Docket: 2008-458(EI)
BETWEEN:
4456735 MANITOBA LTD.
o/a NATIONAL HOME CLEANING SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
PATRICIA JENSEN
Intervenor,
and
LISA WILSON
Intervenor.
Docket: 2008-459(CPP)
AND BETWEEN:
4456735 MANITOBA LTD.
o/a NATIONAL HOME CLEANING SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
PATRICIA JENSEN
Intervenor,
and
LISA WILSON
Intervenor.
AMENDED REASONS FOR JUDGMENT
Beaubier, D.J.
[1]
These appeals were
heard together on common evidence at Winnipeg, Manitoba on
October 24, 2008. Daniel Gagnon testified for the Appellant. Lisa Wilson
testified on her own behalf. The Minister of National Revenue called Annette
Bonneteau, one of the cleaners allegedly employed by the Appellant. Patricia
Jensen did not appear.
[2]
The particulars in
dispute are set out in paragraphs 2 – 10 inclusive in the Reply to the Notice
of Appeal #2008-458(EI). They read:
2. By letters dated July 20, 2007, the Winnipeg Tax Services Offices
issued rulings that Annette Bonneteau (hereinafter “Bonneteau”), Patricia
Jensen (hereinafter “Jensen”) and Lisa Wilson (hereinafter “Wilson”) were in insurable employment with
the Appellant.
3. By a letter received September 10, 2007, the Appellant appealed
to the Minister for a reconsideration of the rulings.
4. In response to the appeal, the Minister decided that:
(a)
Bonneteau was employed under a contract of
service with the Appellant for the period January 1, 2006 to August 25, 2006.
(b)
Jensen was employed under a contract of service
with the Appellant for the period January 1, 2006 to July 20, 2007, and
(c)
Wilson was employed
under a contract of service with the Appellant for the period January 1, 2006
to February 28, 2007.
5. In so deciding as the Minister did with respect to Bonneteau,
Jensen and Wilson (collectively hereinafter “the Workers”), the Minister relied
on the following assumptions of fact:
(a)
the Appellant operated a house cleaning
business;
(b)
the Appellant operated as National Home Cleaning
Services;
(c)
Dan Gagnon (hereinafter “the Manager”) managed
the Appellant’s business;
(d)
the Appellant obtained the clients (hereinafter
“the Client”);
(e)
the Appellant had employees who called
prospective Clients and solicited work;
(f)
the Manager negotiated the work to be done and
the fees charged, with the Client;
(g)
the Workers performed house cleaning duties
including dusting, vacuuming and general cleaning;
(h)
the Workers did not enter into written contracts
with the Appellant;
(i)
the Workers earned a set percentage of what the
Appellant charged;
(j)
the Workers earned 64% of the net fee if they
were working alone and 32% of the net fee if they worked as a crew;
(k)
the Manager determined the Workers’ wage
percentages;
(l)
the Manager determined the fees charged to the
Client and the price of the jobs;
(m)
the Workers did not set their own fees for the
jobs;
(n)
the Manager was involved in any changes in fees
charged to the Client;
(o)
the fees charged could only be changed with the
Manager’s approval;
(p)
the Workers received raises from time to time;
(q)
the Workers collected payments from the Client
and submitted them to the Manager on a regular basis;
(r)
the Workers did not invoice the Appellant;
(s)
the Manager calculated the Workers’ pay;
(t)
the Appellant paid the Workers by cheque on a
weekly basis;
(u)
the Manager and the Client determined the job
schedule;
(v)
the Manger kept a schedule outlining the times
and days the Workers were to work at each Client;
(w)
Bonneteau normally worked Thursday mornings and
all day on Fridays;
(x)
Jensen and Wilson normally worked full-time,
Monday to Friday;
(y)
the Workers were expected to complete the jobs
assigned to them as scheduled;
(z)
the Manager had to approve any schedule changes;
(aa)
the Appellant had first call for the Workers
time;
(bb)
the Appellant held the right to control the
Workers;
(cc)
the Workers were hired for their expertise;
(dd)
the Appellant provided the Workers with a list
of duties they were required to perform;
(ee)
the Manager assigned work to the Workers;
(ff)
the Workers normally worked as part of a crew;
(gg)
required tasks were shared within the crew;
(hh)
the Workers were expected to perform the
services as assigned;
(ii)
the Workers normally attended the Manager’s premises
on a daily basis to pick up schedules, equipment or supplies or drop off
payments;
(jj)
the Client contacted the Appellant if there were
any problems with the work;
(kk)
the Appellant held the authority to change the
Workers’ method of work if a Client complained;
(ll)
the Appellant could terminate the Workers’
employment;
(mm)
the Workers did not refuse work from the
Appellant;
(nn)
if a Worker were unavailable, the Manager would
reschedule the work or assign the work to another Worker;
(oo)
the workers did not hire their own helpers or
replace themselves;
(pp)
the Workers did not work for others while
performing services for the Appellant;
(qq)
when a Worker was hired they normally worked
alongside an experienced Worker for a time;
(rr)
the Appellant provided all of the tools and
equipment required including mops, brooms and vacuums;
(ss)
the Appellant did not charge the Workers for the
use of the Appellant’s equipment;
(tt)
the Appellant paid for any repairs required to
equipment;
(uu)
Bonneteau and Jensen provided their own
vehicles;
(vv)
the Appellant paid Bonneteau and Jensen a
vehicle allowance;
(ww)
Wilson normally rode
with Jensen to the jobsites;
(xx)
the Appellant provided all of the supplies
required;
(yy)
the Workers did not incur any expenses in the
performance of their duties;
(zz)
the Workers were not responsible for bad debts;
(aaa)
the Appellant bonded the Workers;
(bbb) the Appellant provided insurance coverage;
(ccc)
the Workers did not put any of their own funds
or assets at risk;
(ddd) the Workers did not have a chance of profit or risk of loss;
(eee)
the Workers did not have business trade names;
(fff)
the Workers did not manage their own staff or
resources to perform the services;
(ggg)
Jensen did not declare income from the Appellant
on her 2006 income tax return;
(hhh)
Bonneteau’s and Wilson’s intent was employment
while performing services for the Appellant, and
(iii)
the Workers were not carrying on their own
businesses while performing services for the Appellant.
B. ISSUE TO BE DECIDED
6. The issue to be decided is whether the Workers were employed
under a contract of service with the Appellant during the periods under review.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
7. The Respondent relied on, among other things, paragraph 5(1)(a)
and subsection 2(1) of the Employment Insurance Act.
8. The Respondent submits that Bonneteau was engaged in insurable
employment within the meaning of paragraph 5(1)(a) of the Employment
Insurance Act as she was engaged under contract of service with the
Appellant for the period January 1, 2006 to August 25, 2006.
9. The Respondent submits that Jensen was engaged in insurable
employment within the meanings of paragraph 5(1)(a) of the Employment
Insurance Act as she was engaged under a contract of service with the
Appellant for the period January 1, 2006 to July 20, 2007.
10. The Respondent submits that Wilson was engaged in insurable
employment within the meaning of paragraph 5(1)(a) of the Employment
Insurance Act as she was engaged under a contract of service with the
appellant for the period January 1, 2006 to February 28, 2007.
[3]
All of the assumptions
in paragraph 5 of the Reply were either confirmed by the evidence or were not
refuted excepting or subject to the following as referred to by the
subparagraph:
(j) At first it was 60% and then they negotiated a
raise to 64%.
(k) The 60% was prefixed by the manager. The 64% was
negotiated.
(p) See (j) and (k).
(q) This was done at the end of each day when the
workers got resupplied and their assignments for the next day.
(ff) Some worked in pairs and some worked alone.
(ll) And the workers could quit.
(mm) The workers could and once did refuse work after
an argument.
(yy) The vehicle drivers used their own vehicles and
bought their own gas.
(fff) See (yy) comment re vehicles.
(iii) Is the subject of the dispute.
[4]
Using the criteria
established in Weibe Door Services Ltd. v. MNR [1986] 3
F.C. 553 for reviewing contracts respecting a question of employment, the Court
finds:
(1)
Control – The Appellant
got the contracts and fixed the prices, the number of homes a worker would
clean each day, the length of time the work would take and the workers reported
to National at the end of each day for their supplies and assignments for the
next day. The workers delivered any fees they had collected to National then.
(2)
Tools – All tools and
supplies were National’s, except the vehicle and gas of the workers.
(3)
Risk of Profit or Loss
- The workers were paid their percentage amounts whether National was paid or
not. The workers did not hire helpers or replacements.
(4)
Integration – It might
seem that the workers were separate from National. But National did not let
Mrs. Wilson take time off for her honeymoon. She testified that she only had
one day off in the course of a year. This degree of control, the daily reports
and assignments, the weekly pay by National of their daily percentages and the
fact that National satisfied and obtained the contracts and assigned the work
to be done and the times, durations and locations of the work indicate
that the workers were integrated into National’s work.
[5]
The workers were not
performing the services as persons in business on their own accounts.
[6]
The appeals are
dismissed.
These
reasons are issued in substitution for the reasons dated
October
28th, 2008
Signed
at Saskatoon, Saskatchewan, this 10th
day of December 2008.
“D.W. Beaubier”
Email this Content