Ray v. M.N.R., 2004 TCC 698

Citation: 2004TCC698 Date: 20041108 Docket: 2003-3250(EI) 2003-3252(CPP)

BETWEEN:

KAREN L. RAY,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

REASONS FOR JUDGMENT

(delivered orally from the Bench at

Calgary, Alberta, on June 14, 2004)

[1]      These appeals were heard together on common evidence at Calgary, Alberta, on June 14, 2004. The Appellant was the only witness.

[2]      Paragraphs 2 to 7 of the Reply to the Employment Insurance Notice of Appeal read:

2.          By letter dated September 20, 2002, the Calgary Tax Services Office issues a ruling that the Worker was in insurable employment with the Appellant.

3.          By a letter received December 9, 2002, the Appellant appealed to the Minister for a reconsideration of the ruling.

4.          In response to the appeal, the Minister decided that the employment was insurable as the Worker was employed by the Appellant under a contract of service for the period January 1, 2002 to July 31, 2002.

5.          In so deciding as the Minister did the Minister relied on the following assumptions of fact:

(a)         the Appellant advertised for a child care worker position in a local paper;

(b)         the Worker was hired as a child care worker and her duties included preparing meals, preparing children for school, entertaining the younger children, taking younger children to playschool, cleaning and laundry;

(c)         the Worker performed her services at the Appellant's premises;

(d)         the Worker brought her own child while performing services for the Appellant;

(e)         the Worker earned a set wage of $7.20 per hour;

(f)          the Worker was paid bi-weekly by cheque;

(g)         the Appellant set the Worker's wage rate;

(h)         the Worker worked set hours of 7:30 AM to 3:30 PM, Monday to Friday;

(i)          the Appellant set the Worker's hours and days;

(j)          the Worker kept track of her hours and submitted them to the Appellant;

(k)         the Appellant retained the right to control the Worker;

(l)          the Appellant determined any deadlines and priorities;

(m)        at times the Appellant instructed the Worker on duties to be performed;

(n)         the Worker provided the Appellant with a daily diary of activities;

(o)         the Appellant had exclusive rights to the Worker's services;

(p)         the Worker was required to obtain the Appellant's permission for any time off;

(q)         the Worker did not replace herself;

(r)         the Appellant arranged for, and paid, any replacements;

(s)         the Appellant provided the work location which included appliances, furnishings and household supplies;

(t)          the Worker provided her own vehicle;

(u)         the Appellant provided all of the materials required including food and cleaning supplies;

(v)         the Worker did not incur any expenses in the performance of her duties, other than fuel for her vehicle;

(w)        the Appellant provided the Worker with "gas money" for the use of the Worker's vehicle;

(x)         the Worker did not have a risk of loss or liability;

(y)         the Worker did not charge the Appellant G.S.T.;

(z)         the Worker did not have a trade name or business license, and

(aa)       the Worker was not in business for herself;

B.         ISSUES TO BE DECIDED

6.          The issue to be decided is whether the Worker was employed under a contract of service with the Appellant during the period January 1, 2002 to July 31, 2002.

C.         STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT

7.          The Respondent relies on, among other things, paragraph 5(1)(a) and subsection 2(1) of the Employment Insurance Act.

[3]      Assumptions 5 (a), (c), (d), (e), (f), (j), (s), (t), (y) and (z) were not refuted. As to the rest:

(b)      The Worker's duties did not include cleaning and laundry.

(g)      The Worker proposed a wage rate which the Appellant accepted. She was referred to the Appellant by an acquaintance. The Worker set the hours of work described but she did not always keep them, usually because she was also caring for other children as well as the Appellant's three children.

(i)       The Worker set her own hours and the Appellant adjusted her work hours to the Worker's.

(k)      Is wrong.

(l)       The Worker took her own child to the Appellant's home and also cared for the McQuarrie's children there after school, for the Sophone's children and for another family's child or children during non-school hours. The Worker determined her own deadlines and priorities.

(m)     The Appellant expected her children to be cared for and got her report from her children aged four and nine. She did not instruct the Worker.

(n)      The Worker kept a diary which the Appellant saw, more or less accidentally, from time to time.

(o)      The Appellant certainly did not have exclusive rights to the Worker's services. The Worker cared for others' children in the Appellant's home.

(p)      The Worker took time off as and when she pleased.

(q) and (r)     At times the Worker replaced herself with others without the Appellant's consent or advice. The Worker paid the replacement and collected her regular rate from the Appellant.

(u) and (v)    The Worker provided her own food, some books, toys and food for other children.

(w)      Is wrong.

(x) and (aa) Are in dispute.

[4]      Using the criteria set out in Wiebe Door Services Ltd. v. MNR, 87 DTC 5025, the Court finds:

1.        Control

The Worker controlled her work, her workload, her number of clients and her total pay.

2.        Ownership of Tools

The Appellant owned the premises in which the babysitting occurred. But others' children were also there and the Worker or others supplied various food, books and toys. The Worker supplied and needed her own vehicle for her various childcare contracts.

3.        Chance of Profit, Risk of Loss

It is clear that the Worker ran a large childcare business respecting at least four families' children. If one had been injured, the Worker risked heavy liability and loss; on the other hand, the more she cared for, the greater the profit.

4.        Integration

The Worker was in the childcare business and the business was the Workers. That is how she contracted with the Appellant and that is how she conducted it.

[5]      The appeals are allowed. The Appellant is awarded such disbursements incurred on account of the Employment Insurance appeal as are permitted by the Employment Insurance Act.

Signed at Ottawa, Canada, this 8th day of November 2004.

"D.W. Beaubier"

Beaubier, J.

CITATION:

20044TCC698

COURT FILE NOS.:

2003-3250(EI) and 2003-3252(CPP)

STYLE OF CAUSE:

Karen L. Ray v. MNR

PLACE OF HEARING:

Calgary, Alberta

DATE OF HEARING:

June 14, 2004

ORAL REASONS FOR JUDGMENT BY:

The Honourable D.W. Beaubier

DATE OF JUDGMENT:

November 8, 2004

APPEARANCES:

Agent for the Appellant:

Brenda G. Sophone

Counsel for the Respondent:

John-Paul Hargrove

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada