Citation: 2014 TCC 71
Date: 20140306
Dockets: 2013-2264(EI)
2013-2263(CPP)
BETWEEN:
LOVING HOME CARE SERVICES LTD.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LA-TOYA LANA BURT
Intervenor.
REASONS FOR JUDGMENT
Boyle J.
[1]
These are appeals from
Rulings made by the Canada Revenue Agency (“CRA”) in 2012 which ruled that the
Appellant, Loving Home Care Services Ltd. (“Loving Home Care”) and six of its
workers, including the Intervenor, Ms. Burt, had an employer-employee
relationship for purposes of the definitions of “insurable employment” in the Employment
Insurance Act (“EIA”) and of “pensionable employment” in the Canada
Pension Plan (“CPP”).
[2]
The Appellant, Loving
Home Care, disagrees with these Rulings and maintains that the workers were
independent contractors. The Intervenor, Ms. Burt, agrees with the Rulings
which determined that she was an employee of Loving Home Care.
Applicable Law
[3]
The applicable law in
appeals such as these is fully and clearly set out by the Federal Court of
Appeal in 1392644 Ontario Inc. (Connor Homes) v. Canada (National Revenue),
2013 FCA 85. I will not reproduce all of paragraphs 23 and 33 through 41 of
Justice Mainville’s reasons.
[4]
The legal issue to be
decided is simply whether an individual worker is performing her personal care
worker services as her own business on her own account.
[5]
This requires me to
first decide whether subjectively, based upon the facts, circumstances and
evidence in the particular case, there was a mutual understanding or common
intention between the parties regarding their relationship as either employment
or independent contractor.
[6]
At this stage, a Court
can consider, among other things, the extent to which a worker understood the
differences between an employment or independent contractor relationship, the
relative bargaining position strengths and weaknesses, and the extent to which
such evidence, which can typically be expected to be self‑serving, is
corroborated by and consistent with the other evidence placed before the Court.
[7]
The answer to this
question is not determinative. The parties can not agree to the correct legal
characterization of their work relationship as if it were just another term or
condition of their work relationship rights, obligations, duties and
responsibilities. A declared and agreed intent to a particular characterization
of the work relationship as employment or independent contractor must, in fact,
be grounded in a verifiable objective reality.
[8]
If the parties have a
common agreed intended characterization of their relationship, this Court must
determine if the overall objective reality of their working relationship
sustains, and is consistent with, their subjective intent.
[9]
This second step
requires the Court to consider and weigh the traditional Sagaz/Wiebe Door
factors of control over the work and the worker (including the extent of
subordination of the worker), the provision of tools, material, credentialing
and equipment needed for the worker to do the work, and the extent of the
worker’s financial upside and downside risks regarding the services provided by
her.
[10]
In this second step,
the Court may again consider the parties’ intent, along with the actual
behaviour of the parties and any written agreement between them. In Royal Winnipeg Ballet v. M.N.R. (F.C.A.)
the Federal Court of Appeal had similarly said the traditional Sagaz/Wiebe
Door factors must be considered “in the light of the parties’ intent.”
[11]
This second step is
otherwise the same as how the Court would proceed in cases where there is no
common shared intention regarding the characterization of the work relationship
by the parties.
The Subcontract Agreements with the Workers
[12]
The Subcontract
Agreement between the Appellant, Loving Home Care and the Intervenor, Ms. Burt,
provided, among other things, the following provisions:
i) The Contractor agrees
to provide the Subcontractor with on-call contracts, that she may accept;
ii) The Subcontractor
agrees to perform duties of an assigned contract in a responsible manner, as
defined by the Contractor from time to time, which is customarily associated
with the position as assigned.
iii) During the term of
the agreement, the Subcontractor undertakes to devote the whole of her time,
attention, effort and ability as a Subcontractor and the Subcontractor shall at
all times perform the duties and responsibilities associated with the Contract.
iv) The Contractor agrees
to pay the Subcontractor a fixed hourly or daily amount in regular instalments.
v) No Unemployment Insurance,
Canada Pension or income tax deductions will be made. Subcontractor is obliged
to pay these as required by law. Loving Home Care will pay Workers Compensation
Board (“WCB”) assessments.
vi) The duties and the responsibilities
are described by the Contractor where they can be changed based on the job
description.
vii) The Subcontractor is
responsible to update the Contractor with the patients’ day-to-day events using
the log book; including health status, household management, and other relevant
information.
viii) Any holidays and
family events, the Contractor requires a minimum of two weeks notice in
writing; and
ix) Any misbehaviour that
conflicts with the client and/or Contractor and/or the duties and
responsibilities of this contract, the agency has the permission to dismiss the
employee within 24 hours of the conflict.
[13]
The Subcontract Agreements
with each of the other five workers affected by the Ruling were put in evidence.
With the exception of vii) and viii) above dealing with reporting and
scheduling non-work days and the obligation to complete the Loving Home Care
daily log book, each of the agreements is in all respects the same. Each
purports to be a subcontract, but uses the term employee in the dismissal rights
clause set out in ix) above.
[14]
They are not all signed
by either or both parties. They do not all have the blanks filled in for rate
of pay nor all of the dates filled in.
[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.
[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.
[17]
Loving Home Care had
other workers doing similar personal care work who were treated as employees.
It appears from the testimony that this may have been done primarily to permit
the workers to qualify for employment insurance maternity leave benefits. In
any event, the employment contracts of the employed personal care workers were
not put in, nor described in evidence, none of them testified, and there was no
evidence to suggest that their day-to-day working relationship with Loving Home
Care or its clients differed from these workers.
[18]
The clients who were
cared for were those of Loving Home Care. The Court was not given a copy of any
written contract with these clients, whether the patients or the families, nor
was any clear evidence of the overall terms of any such oral or written
contract between Loving Home Care and its clients tendered, even though it must
have addressed the caregiving to be provided.
[19]
While the Court heard
often about the role of the families with respect to the daily care of the
patient and communications with Loving Home Care and the care workers, no such
client of Loving Home Care testified as to their understanding of their arrangements
or agreement with Loving Home Care.
The Witnesses’ Evidence
[20]
The principal of Loving
Home Care, Ms. Jolanta Purgal, testified on behalf of the Appellant. I have
some reservations about her testimony. It was obviously self-serving and it
proves somewhat difficult to corroborate with other evidence. I have already
addressed my significant concerns with the written agreements tendered and Ms.
Purgal’s role in renewing them. More importantly, she was less than candid in
her seemingly clear negative answer to the Crown’s question in
cross-examination as to whether she ever discussed with Ms. Burt the
possibility of treating her as an employee. On cross-examination by the
Intervenor, Ms. Burt herself, Ms. Purgal acknowledged readily in the back and
forth exchange between them that she had indeed had such a conversation
with Ms. Burt while Ms. Burt worked for Loving Home Care. Ms. Purgal then, on
her own, went on to refer to also having that same conversation with Ms. Burt
when Ms. Burt was considering returning to work after the birth of her child.
The Court is therefore keenly interested in considering the extent to which Ms.
Purgal’s testimony is corroborated with other evidence. Similarly, in chief Ms.
Purgal clearly maintained that all Loving Home Care workers were characterized
as independent contractors since 1998. However, in cross-examination by the
Respondent she had to acknowledge, when presented with an employee list
prepared by her accountant, that there were exceptions, and that two or three
of those who asked to be employees were in fact re-characterized as employees
by Loving Home Care.
[21]
Five of the workers
covered by the Rulings also testified.
[22]
The testimony of Ms.
Burt, the Intervenor, was in several key respects materially at odds with Ms.
Purgal’s. Obviously, Ms. Burt’s testimony was also self-serving in support of
her interests as a party to the proceedings. However, self-serving is not
necessarily pejorative, nor does it necessarily require full corroboration. I
accept Ms. Burt’s testimony as credible and, to the extent Ms. Burt’s
evidence is at odds with Ms. Purgal’s, I prefer Ms. Burt’s.
[23]
Four of the other five
workers also testified. They did not intervene in the proceedings and they were
satisfied with and supported Loving Home Care’s position that they were
independent contractors and not employees. Overall, I accept that they answered
honestly and earnestly to the best of their abilities. However, the Court
sensed some of their answers on their status as independent contractors were
rehearsed. They too were somewhat self-interested in supporting Ms. Purgal as
they testified in front of her and she continues to provide them with Loving
Home Care work. They may also have claimed related tax deductions against their
Loving Home Care income. One of them awkwardly stated clearly that she was an
independent contractor in response to the first or second question asked in
chief, even though the nature or characterization issue in her agreement had
not yet been raised. As mentioned above, another had to revise her answer
regarding the number and timing of her written agreements when confronted with
the agreement. Another worker sat through the testimony of one of the other
workers mouthing and gesturing the right answers, though I do not suggest that
influenced the person testifying or was even noticed by her. One of the workers
for whom English was not her first language, seemed troubled when asked
questions which did not suggest an answer or could not be answered yes. Another
had to significantly change her clear testimony on the timing of changes to the
agreements, including her rate of pay, when reminded of the dates written on
her written agreement/renewal. I do not impugn any of these four witnesses or
their testimony. I accept their testimony as regards their day-to-day
caregiving to Loving Home Care clients and their interactions with the patients
and family members with respect to day-to-day information sharing and
instruction. However, overall in these circumstances I place little weight or
corroborating value on most of their views on the characterization of their
work relationship as independent contractor and not employees of Loving Home
Care, especially given that most of them testified that when they started
working for Loving Home Care they did not fully appreciate the difference
between independent contractor and employee status.
[24]
Much was heard about
the role of the family members of patients cared for by Loving Home Care and
its care workers. It is not surprising that caring for the needs of aged, ill
or disabled person involved Loving Home Care and Ms. Purgal, its care workers,
the family members and/or the patient himself or herself, all working together
as a team to ensure that the proper and needed care was best provided.
Undoubtedly, the formal and informal communication, instruction, information
sharing, assignment and delegations which such care needs, might be expected to
be very much the same whether the particular care worker is an employee or
independent contractor of Loving Home Care. In this case the evidence is clear
that the patient’s legal caregiving relationship is between the patient or a
particular family member and Loving Home Care, whereas the primary day-to-day
care involvement is between the patient, or the patient and one or more family
members, and the Loving Home Care worker. It is also clear that the Loving Home
Care daily caregiver’s log book, along with the patients’ Loving Home Care caregivers’
information and emergency contact file, were maintained in the patient’s home.
[25]
However, no family
member of any patient was called to corroborate the Appellant’s version of
instruction regarding, direction over, control or monitoring of the Loving Home
Care caregivers’ work which, according to the contractual relationship and all
of the witnesses’ testimony, the families were heavily involved in. Loving Home
Care had a sufficient number of patients and their families to keep thirty to
sixty or more care workers on staff. While I do not draw any adverse inference
whatsoever, it is unfortunate that such evidence is not present to help corroborate
Ms. Purgal’s testimony for the Appellant and assist the Appellant discharging
its burden of proof on a balance of probabilities.
Intention of the Parties
[26]
If I overlook the one
reference to the workers being employees in the subcontract agreement, and my
concerns about when, if ever, the contracts were actually executed, it is clear
that i) the written agreement between Loving Home Care and its workers
characterizes the relationship as one of independent contractor status, and
(ii) the workers understood from early on in the relationship that they were to
be in an independent contractor relationship with Loving Home Care.
[27]
However, it is also
clear on the evidence that all (except perhaps one) of the workers, including
the Intervenor, did not understand what that meant beyond perhaps having been
told that they could deduct their travel expenses and their cell phones. As a
general principle, workers who are not informed and do not actually know or
understand the differing possible characterizations of their work relationship
can not make a very helpful self-characterization of the nature of the legal
relationship they have taken on, and certainly not one that can much enlighten
or inform the Court’s objective consideration of the traditional Sagaz/Wiebe
Door factors.
[28]
In the circumstances of
this case, the Court places little weight on the subjective intentions of the
workers to characterize their work relationship as independent contractors.
Control
[29]
The provisions of the
written agreements relating to Loving Home Care’s control over the work and the
worker are set out above. These clearly gave Loving Home Care the right to
require each worker to inform it in writing of each day’s events. It also
clearly gives Loving Home Care the right to dictate how the workers are to perform
their duties and has not simply assigned duties to them. Duties clearly have to
be performed in a responsible manner as defined by Loving Home Care from time
to time.
[30]
The care workers were
required to maintain the Loving Home Care log when their shifts ended and to
consult it again when their next shifts started. This is where they found out
what might be needed, and recorded what they had done and/or thought was needed
to be done. For the one worker who was the sole care worker for a particular client
and worked hourly shifts at that client’s and was not live-in, it is likely
that as a practical matter she was not required or expected to consult her
notes from the day before. But there is no reason to believe she did not
maintain the log as required. One worker believed she was maintaining the
Loving Home Care log book only for herself, though it appeared her patients
only were provided companionship, laundry, meals and walks provided by her as
the sole Loving Home Care worker.
[31]
The log book is where
workers found out what might be needed and recorded what they had done and/or
thought was needed to be done. It was Loving Home Care’s log book, required to
be consulted and maintained at the insistence of Loving Home Care, and the
entries were primarily those of Loving Home Care’s workers caring for the
particular patient. At times there might be notes or entries from the patient’s
family, and the log was available in the home for review by the family.
[32]
Individual practices
depended upon the individual care workers involved and the nature or extent of
the patient’s care needs. This is not surprising given that some patients’ care
involved only companionship, walks and errands, while others required
medication assistance, catheterization and ostomy pouch monitoring and
maintenance, oxygen and, in the case of the bedridden, lifting and turning, and
that different families and different workers may approach things differently.
The evidence suggests there may have been considerable variance in workers’ and
families’ approaches to the Loving Home Care log but the Appellant did not put a
representative log book, or Loving Home Care folder, in evidence for me to more
clearly understand.
[33]
When working a
“live-in” 24 hour overnight shift, workers were required to report to Ms.
Purgal if they were not provided three hours of relief by a family member so
Loving Home Care could bill the family extra and pay the worker extra.
According to Ms. Burt, if a patient rose more than twice during the night, she
was to report to Ms. Purgal so the client could be charged for the extra care
and the worker be paid extra for the time when it was anticipated by all she
was to have been sleeping.
[34]
According to another
worker, she has a few Loving Home Care clients where she is required to report
directly to Ms. Purgal on a daily basis in addition to maintaining the written
log.
[35]
Ms. Purgal would attend
at clients with their families, while a worker was present and while a worker
was not working. She did not often attend while a worker was there. The purpose
of such visits is not clear except those which involved initial introductions
and orientation-type training. I am not satisfied I know clearly how often her
visits occurred while the worker was not on shift, or the purpose of such visits,
nor what was discussed. Ms. Burt testified that at least one client reported
having a visit from Ms. Purgal at which Ms. Burt’s performance formed at least
part of the discussion. Ms. Purgal’s testimony was that she only visits clients
when called. She said she was called once to a meeting with a family to which
Ms. Burt provided care, but it was to discuss a power of attorney dispute
between family members. Ms. Purgal’s evidence in this regard, and in regards to
her client/family visits was not corroborated.
[36]
I was given very little
information about ongoing communications in writing, in person, or by phone
between Loving Home Care’s Ms. Purgal and its clients by way of ongoing
reporting, regular or routine client maintenance, client satisfaction queries,
billing queries or collection matters. I do understand that Loving Home Care
was a successful business with a significant staff of care workers and a
corresponding number of clients. Ms. Purgal appeared to be a focused and driven
business person who stayed completely on top of all aspects of her successful
business. Also, for those clients that required workers report daily directly
to Loving Home Care, I assume Ms. Purgal was in very regular if not daily
contact with Loving Home Care’s client and I was not told differently.
Undoubtedly, all of this contributed to Loving Home Care’s and Ms. Purgal’s
apparent success. I find from this that Loving Home Care was in at least
somewhat regular contact with the client families on all key aspects of the
Loving Home Care caregiver relationship, including their level of satisfaction
with the individual caregivers and how they were doing their work.
[37]
There was no evidence
from the Appellant of the level of detail or the range of terms in Loving Home
Care’s agreements with its clients. I therefore do not know how generally or
specifically they provide for what duties are taken on nor what, if any, detail
is set out as to how those duties are to be performed. Nor do I know the
required level of Loving Home Care monitoring of caregiver performance. I was
not offered a standard form, an overview, or a family member’s testimony. The
Respondent did put into evidence screen shots of the Loving Home Care website
which states, among other things, that Loving Home Care “works closely with the
families and clients to ensure total satisfaction in everything we do”. It says
its services can include a detailed care plan. It says that its personal
caregivers are certified and twice that they are trained. It seems clear that
Loving Home Care’s workers are not certified and trained by anyone other than
Loving Home Care (although at least one worker had earlier been trained and
qualified as a registered nurse outside Canada). If the certified and trained
statements are taken to be true, Loving Home Care must be providing a degree of
monitoring and supervision to hold them out as certified by them and trained by
them.
[38]
Neither name tags nor
uniforms were required of Loving Home Care’s caregivers whether they were
employed or independent contractors.
[39]
I was not told by Ms.
Purgal that Loving Home Care’s control over its employed personal care workers
and their work differed in any way from those characterized as independent
contractors. Nor was I told of any changes in these levels of control over the
care workers and their work when a worker’s characterization transitioned from
independent contractor to employee. The other witnesses not surprisingly could
not be expected to attest to this. This leads me to a finding that there were
not material or significant distinction between these workers other than
employee withholdings and EI maternity benefits.
[40]
Loving Home Care
clearly did not exercise any right to direct that its care workers care for any
particular client, nor work any particular shift, other than those that the
workers had agreed to after it being offered. Workers would let Ms. Purgal
know of their availability for work at the outset and update her. Workers were
able to and did turn down patients and shifts. These decisions appeared to have
been largely made dependant upon the worker’s preferred time slots, and how
much actual work was required. For many, if not most workers, this was
part-time work and workers had other jobs, school and family commitments to
juggle and work around. These workers appeared to get all the work hours that
they wanted from Loving Home Care as they balanced school, other jobs and/or
child rearing. Given that the pay rate was generally the same standard rate,
workers tended to prefer the companionship, meal preparation and appointments
and errand clients to those requiring lifting, medication administration and
ostomy or catheterization maintenance (unless as described below they could
negotiate a higher pay rate with Ms. Purgal for the greater needs patient).
[41]
Once a particular
client’s particular recurring shift had been accepted by a worker to whom Ms.
Purgal offered it, the worker was expected to carry on working that shift. Sick
days, unexpected appointment days and vacations or extended absences were
handled differently by different workers. The workers’ contract with Loving
Home Care gave Loving Home Care the right to a minimum of two weeks written
notice for vacations and family events. In practice, individual caregivers
necessary absences were dealt with in a range of ways. Some families preferred
to cover them off themselves, even over holiday periods, to avoid creating
change for the patient. In that case workers would advise Ms. Purgal so billing
and pay could be adjusted. Some workers would try to make arrangements with
their Loving Home Care colleague who worked a different shift for the same
client. These workers would simply inform Ms. Purgal through their invoices to
Loving Home Care so each would be paid correctly. Still others would simply
inform Ms. Purgal when they had to be or chose to be off for any reason, and it
was Ms. Purgal who made arrangements for the replacement Loving Home Care
worker.
[42]
Loving Home Care’s
workers were not permitted to hire a replacement or an assistant or helper, nor
were they allowed to subcontract their obligations. They could not subcontract
their work to anyone on terms the worker would get paid the agreed Loving Home
Care worker rate and pay her subcontractor less, not even with another Loving
Home Care worker. The worker could not arrange directly for a replacement who
was not already Loving Home Care staff, although on occasion some workers would
alert Ms. Purgal of the availability of a care worker at another agency who was
available to replace her for a particular requested time off.
[43]
Workers were able to
inform Loving Home Care that they were no longer available for certain shifts,
for example when they returned to school, or that they no longer wished to
continue to work for particular clients, and these requests were respected.
[44]
Notwithstanding the
wording of the Subcontract Agreements, workers were able to work for others,
including being an employee of a competing caregiver agency. The only
requirement was that the worker could not compete, directly or with another
agency, and provide care to a Loving Home Care client until two years after
stopping work at Loving Home Care.
[45]
After considering and
weighing the above factors as they relate to Loving Home Care’s control over
the workers and how the agreed work was to be performed, I find on balance that
it leans towards an employment relationship in this particular case. Loving
Home Care’s over-arching right to dictate how the duties are performed as set
out in the written agreement with the worker, the requirement for detailed
daily log book reporting to Loving Home Care, the ongoing monitoring by Loving
Home Care, the ongoing “certification” by Loving Home Care of the worker to its
clients, all track very closely to what might be expected of an employment
relationship. This is confirmed by the fact that these are the same level and
degrees of control that Loving Home Care has and exercises over its employed
caregivers. On the other hand, the ability of the worker to turn down
particular shifts or clients that are offered to her is not inconsistent with
the employment of largely part-time shift workers, at locations anywhere in a
major city, in a competitive market, and in a sector that appears from the
evidence to not require exclusivity from its employees.
[46]
With respect to the
role of the families in having day-to-day communications about the care needed
or provided, consistent with Justice Woods’ decision in Dean (Ana’s Care
& Home Support) v. Canada (National Revenue), 2012 TCC 370, it
is the ability of Loving Home Care to control and direct how the duties are
performed that is most significant, not how often it had to be or was exercised
to such an extent. Also, I agree with Justice Woods’ observation that in an
in-home care giving context, since the workers contracted with Loving Home Care
and not with Loving Home Care’s clients, any directions given by Loving Home
Care’s clients which the workers were expected to comply with, amounted to
control exercised over her by virtue of her obligations to Loving Home Care.
Tools, Credentialing, Materials and Equipment
[47]
In this case I find the
ownership of tools factor is not helpful one way or the other. According to the
evidence, the only things needed to provide the care are protective surgical-type
gloves. These were always provided for by the families along with anything else
needed such as groceries, taxi fare, or other transportation costs, lifts and
the supplies needed to attend to a client’s personal needs. They are all always
provided by the client or family and never by Loving Home Care or the worker.
Further, this appears to be the case regardless of whether the care worker is
an employee or an independent contractor. If a worker used her own vehicle for
appointments, shopping or other client errands or travel, she would record the
mileage and charge the client at a set rate. Some workers gave that form to the
client directly and others to Loving Home Care, but the reimbursement always
came from the family.
[48]
A caregiver’s training
was all provided on the job by Loving Home Care, usually by another Loving Home
Care worker. Training on things like lifting might be provided by a third party
health care provider working with the client or family. The care workers are
not required to obtain any outside training or certification, either at Loving
Home Care’s or their own expense.
[49]
In the relatively rare
instance when needed to accommodate clients’ needs with worker availability,
Loving Home Care would pay for a worker’s travel by taxi between client shifts.
Otherwise, workers were on their own for getting to and from the patients’
homes using either public transit or their personal vehicle.
Financial Upside and Downside Risks
[50]
The workers did not
make any financial investment in tools, equipment, material, training or
credentialing to be able to do the work for Loving Home Care. They did not
advertise for clients, but responded to ads or referrals. Workers were paid
fixed hourly or daily rates by Loving Home Care as set out in their contract at
$15 per hour, subsequently raised to $16 per hour. The daily rate was 8 times
the hourly. These rates could at times be negotiated modestly higher for
certain patients to $17 per hour, or in one instance to $20 per hour, but these
appear to have always been based upon the location of the work, or the
particular nature of the care required given the client’s particular state of
physical or mental well-being.
[51]
The workers were paid
for their work by Loving Home Care every two weeks after reporting their hours
to Loving Home Care normally on a printed Loving Home Care invoice form
provided to them. The rate of pay was not dependant on the amount charged to
Loving Home Care’s clients. While the Notice of Appeal prepared by Appellant’s
counsel contends that the workers were not paid by Loving Home Care if its
client did not pay Loving Home Care, there was not a hint of that in evidence.
[52]
Loving Home Care
workers were not entitled to paid holidays or sick days. When Ms. Burt was
injured at a Loving Home Care client’s home, Loving Home Care did offer her 2
paid days off to recuperate to encourage Ms. Burt to not make a WCB claim. Ms.
Burt did not accept that but made a WCB claim.
Conclusion
[53]
Given the limited
extent and scope of the evidence, and the limitations on its quality as
discussed above, the Appellant has not been able to establish with sufficient
credible evidence that the Loving Home Care workers covered by the Rulings
were, on a balance of probabilities, in a working relationship that would be
characterized in law as an independent contractor and not as an employee.
[54]
Given especially the
extent of Loving Home Care’s rights to direct the performance of the work
duties and its actual monitoring and reporting requirement practices, and given
the very limited financial risks to the workers, the absence of any financial
investment by the workers, and the relatively fixed financial rewards by which
they can only generate more income by working additional hours or days, these
particular facts and circumstances considered as a whole quite strongly give
rise to insurable employment under the EIA and pensionable employment
under the CPP.
[55]
The appeals are
dismissed.
Signed at Toronto, Ontario this 6th
day of March 2014.
“Patrick Boyle”
Email this Content