Delaware Nation v. Logan, 2007 FCA 170

Date: 20070426

Docket: A-22-06

Citation: 2007 FCA 170

CORAM:       SEXTON J.A.

                        MALONE J.A.

                        RYER J.A.

BETWEEN:

DELAWARE NATION

(MORAVIAN OF THE THAMES)

Appellant

and

GEORGINA DOREEN LOGAN, REFEREE PETER BARTON and

THE MINISTER OF HEALTH AND LONG-TERM CARE FOR ONTARIO

Respondents

Heard at Toronto, Ontario, on April 26, 2007.

Judgment delivered from the Bench at Toronto, Ontario, on April 26, 2007.

REASONS FOR JUDGMENT OF THE COURT BY:                                                SEXTON J.A.

Date: 20070426

Docket: A-22-06

Citation: 2007 FCA 170

CORAM:       SEXTON J.A.

                        MALONE J.A.

                        RYER J.A.

BETWEEN:

DELAWARE NATION

(MORAVIAN OF THE THAMES)

Appellant

and

GEORGINA DOREEN LOGAN, REFEREE PETER BARTON and

THE MINISTER OF HEALTH AND LONG-TERM CARE FOR ONTARIO

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on April 26, 2007)

SEXTON J.A.

[1]               The Appellant (“Band”) appeals from the Order of Phelan J. who dismissed the application for Judicial Review of the decision of a Referee appointed under the Canada Labour Code which decision held that the Respondent, Logan was an employee of the Appellant and entitled to $192,000.00 for overtime pay plus interest.

[2]               The Band operated a Homemakers Program funded by the Ontario and Federal governments.

[3]               The Respondent, under this program, provided homemaking services for her injured son from November 1987 to November 2000.

[4]               In November 2000, the Province of Ontario declined to provide further funding and, as a result, the Respondent did not receive the amount of remuneration she felt she was entitled to. Consequently, she filed a complaint under the Canada Labour Code asserting that she was an employee of the Band during the relevant period and as such was entitled to receive retroactive pay.

[5]               While initially her complaint was dismissed by Human Resources and Skills Development Canada, the Referee allowed the Respondent’s appeal, finding that the Respondent was an employee of the Band. The Referee considered some 28 factors in reaching this conclusion.

[6]               The Motions Judge was of the view that in addressing these 28 factors, the Referee had effectively considered the appropriate factors in establishing whether a person is engaged in performing services as an independent contractor or as an employee as set forth in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue – M.N.R.), [1986] 3 F.C. 553.

[7]               The Motions Judge concluded that in applying those factors, the Referee had acted reasonably.

[8]               We are of the view, having examined the evidence including numerous documents of the Appellant referring to the Respondent as an employee, that the Motions Judge made no error in concluding that the decision of the Referee was reasonable.

[9]               Notwithstanding the able submissions of counsel for the Appellant, we would dismiss the appeal with costs.

“J. Edgar Sexton”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                      A-22-06

APPEAL FROM THE JUDGMENT OF THE HONOURABLE MR.JUSTICE

PHELAN, DATED DECEMBER 16, 2005 (FILE T-1089-04)

STYLE OF CAUSE:                                      DELAWARE NATION (MORAVIAN OF THE

THAMES) v. GEORGINA DOREEN LOGAN,

REFEREE PETER BARTON and THE

MINISTER OF HEALTH AND LONG-TERM

CARE FOR ONTARIO

PLACE OF HEARING:                                TORONTO, ONTARIO

DATE OF HEARING:                                  APRIL 26, 2007

REASONS FOR JUDGMENT OF

THE COURT BY:                                          (SEXTON, MALONE & RYER JJ.A.)

DELIVERED FROM THE

BENCH BY:                                                   SEXTON J.A.

APPEARANCES:

SOLICITORS OF RECORD: