1772887 Ontario Limited v. M.N.R.

1772887 Ontario Limited v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2011-04-07
Neutral citation
2011 TCC 204
File numbers
2009-335(EI)
Judges and Taxing Officers
Joe E. Hershfield
Subjects
Employment Insurance Act
Decision Content
Dockets: 2009-335(EI)
2009-336(CPP)
BETWEEN:
1772887 ONTARIO LIMITED,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
HEATHER HARTON,
Intervenor.
____________________________________________________________________
Appeals heard on common evidence with the appeals of
Yvonne Brioux 2009-849(EI); Yvonne Brioux 2009-850(CPP);
Klara Palotay 2009-228(EI) and Klara Palotay 2009-229(CPP)
on September 21, 22, 23 and 24, 2010 at Toronto, Ontario
Before: The Honourable Justice J.E. Hershfield
Appearances:
Counsel for the Appellant:
Jacqueline L. Wall
Counsel for the Respondent:
Rita Araujo
Laurent Bartleman
For the Intervenor:
The Intervenor herself
____________________________________________________________________
JUDGMENT
In accordance with the attached Reasons for Judgment, the appeals of 1772887 Ontario Limited (“Pi Media”) are allowed, without costs, and the decisions of the Minister of National Revenue are varied on the basis that at all relevant times Gary Thompson, carpenter, and workers having work category designations of senior stylists, as agreed to between the Respondent and Pi Media at the hearing, were engaged by Pi Media under a contract for services. All such workers are to be treated accordingly for the purposes of the Employment Insurance Act and the Canada Pension Plan; and
For greater certainty, the appeals of Pi Media are dismissed, without costs, in respect of the workers having work category designations of assistant photographers, assistant stylists and junior stylists, as agreed to between the Respondent and Pi Media at the hearing. Such appeals are dismissed for the reasons set out in the attached Reasons for Judgment on the basis that such workers were engaged at all relevant times by Pi Media under a contract of service.
Signed at Ottawa, Canada this 7th day of April 2011.
"J.E. Hershfield"
Hershfield
Dockets: 2009-849(EI)
2009-850(CPP)
BETWEEN:
YVONNE BRIOUX,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
1772887 ONTARIO LIMITED,
Intervenor.
____________________________________________________________________
Appeals heard on common evidence with the appeals of
1772887 Ontario Limited 2009-335(EI); 1772887 Ontario Limited 2009-336(CPP);
Klara Palotay 2009-228(EI) and Klara Palotay 2009-229(CPP)
on September 21, 22, 23 and 24, 2010 at Toronto, Ontario
Before: The Honourable Justice J.E. Hershfield
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Rita Araujo
Laurent Bartleman
For the Intervenor:
1772887 Ontario Limited
By its counsel Jacqueline L. Wall
____________________________________________________________________
JUDGMENT
In accordance with the attached Reasons for Judgment, the appeals are allowed, without costs, and the decisions of the Minister of National Revenue are varied on the basis that the Appellant was at all relevant times engaged by 1772887 Ontario Limited in a contract for services.
Signed at Ottawa, Canada this 7th day of April 2011.
"J.E. Hershfield"
Hershfield J.
Dockets: 2009-228(EI)
2009-229(CPP)
BETWEEN:
KLARA PALOTAY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
1772887 ONTARIO LIMITED,
Intervenor.
____________________________________________________________________
Appeals heard on common evidence with the appeals of
1772887 Ontario Limited 2009-335(EI); 1772887 Ontario Limited 2009-336(CPP);
Yvonne Brioux 2009-849(EI) and Yvonne Brioux 2009-850(CPP)
on September 21, 22, 23 and 24, 2010 at Toronto, Ontario
Before: The Honourable Justice J.E. Hershfield
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Rita Araujo
Laurent Bartleman
For the Intervenor:
1772887 Ontario Limited
By its counsel Jacqueline L. Wall
____________________________________________________________________
JUDGMENT
In accordance with the attached Reasons for Judgment, the appeals are allowed, without costs, and the decisions of the Minister of National Revenue are varied on the basis that the Appellant was at all relevant times engaged by 1772887 Ontario Limited in a contract for services.
Signed at Ottawa, Canada this 7th day of April 2011.
"J.E. Hershfield"
Hershfield J.
Citation: 2011 TCC 204
Date: 20110407
Dockets: 2009-335(EI)
2009-336(CPP)
BETWEEN:
1772887 ONTARIO LIMITED,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
HEATHER HARTON,
Intervenor;
Dockets: 2009-849(EI)
2009-850(CPP)
AND BETWEEN:
YVONNE BRIOUX,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
1772887 ONTARIO LIMITED,
Intervenor;
Dockets: 2009-228(EI)
2009-229(CPP)
AND BETWEEN:
KLARA PALOTAY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
1772887 ONTARIO LIMITED,
Intervenor.
REASONS FOR JUDGMENT
Hershfield J.
[1] 1772887 Ontario Limited (“Pi Media”) operates a commercial photography studio in Canada. As part of its operations the company hired workers on an as needed basis to supplement its full-time staff or perform required services. These workers performed services as senior stylists, junior stylists, assistant stylists, photographic assistants and carpenters.
[2] The Minister of National Revenue (the “Minister”) initially assessed Pi Media in respect of the 2004, 2005 and 2006 taxation years on the basis that these workers were engaged under a contract of service to the effect that Employment Insurance premiums and Canada Pension Plan contributions were required to have been made by Pi Media in respect of the engagement of those workers during those years. The initial decision of the Minister was appealed and varied, however the varied decision is now being appealed.[1] The basis of that decision, which affects 70 workers, is that each of them at all relevant times was engaged by Pi Media under a contract of service and was an employee of Pi Media not an independent contractor.
[3] Pi Media and two of the workers, Klara Palotay and Yvonne Brioux, appealed the Minister’s decision. A third worker, Heather Harton, intervened.[2] All three such workers, in agreement with Pi Media, took the position that they were engaged by Pi Media under a contract for services and were independent contractors.
[4] Each of Heather Harton, Yvonne Brioux and Klara Palotay appeared as witnesses at the hearing on their own behalf. Each was a senior stylist. In addition, Pi Media called the following witnesses: Gary MacLean, Director photographic operations Pi Media; Iris Simpson, senior stylist; Sarah Rodrigues, assistant and junior stylist; Jason Grenci, photographic assistant; Blaise Misiek, photographic assistant; Devin Gallagher, photographic assistant, and Gary Thompson, carpenter.
[5] The Respondent called one witness, namely, an appeals officer from the Canada Revenue Agency (“CRA”).
[6] The Respondent and Pi Media agreed at the outset of the hearing that the witnesses who had been engaged by Pi Media as independent contractors would be treated as representative of the category of worker to which they belonged so that the disposition of Pi Media’s appeal in respect of all the workers in each category would be disposed accordingly. The appeals of Yvonne Brioux and Klara Palotay, although capable of being treated separately, were, in effect, treated as representative of their category of worker. Heather Harton, in effect, was similarly treated.
General Background
[7] Pi Media was the largest pre-press, studio facility in Canada during the subject years. Prior to the years in question, there was a consolidation of the commercial photography industry. This eliminated smaller studios and resulted in Pi Media being the largest. It did 100% of the printing and website advertising for Sears which was its largest client. Prior to the consolidation, Sears work was divided among a number of competing studios. The consolidation and Sears work resulted in Pi Media offering the most opportunity to freelancers. This was confirmed by witnesses such as Ms. Palotay who has been a stylist since 1965, working as a freelance stylist since 1968. She testified that once Pi Media received all of Sears catalogue work, there was a large volume of freelance work for her there. Similarly, Ms. Brioux testified that she had been working freelance for a number of years prior to making contact with Pi Media in 2003. Regular work at Pi Media was the result of there not being many studios doing catalogue work at that time. Ms. Harton testified that operations like Sears, prior to 2003, divided their commercial photography work amongst five or six large studios in Toronto from whom she was able to get freelance styling work. As the scene changed it became increasingly apparent that Pi Media afforded her the best freelancing opportunities. The division of Sears work was also confirmed by Mr. MacLean who first commenced working with Pi Media in 1995 when Sears business was divided between 5 studios.
[8] As a studio, Pi Media provided all of the services required to prepare print advertisements for catalogues, flyers, in-store signage and websites. The services included meeting with clients. A client such as Sears communicated its instructions to Pi Media regarding the content of a catalogue by having its marketers and buyers attend the meeting with Pi Media’s sales team who would promote a concept as created by Pi Media’s creative team for a catalogue as conceived by Pi Media’s creative team. Once a concept was agreed upon, Pi Media’s creative team generated layouts, drawings and swipes that detailed the composition of the required shot including the mood, the lighting, the set and the props and producers prepared production schedules. The layouts include art instructions and set out whether the product, if clothing, would be on-figure or off-figure. An on-figure shot would involve the use of a model.
[9] Exhibits produced at the hearing demonstrated that there was a considerable amount of detail provided by Pi Media’s creative team. In a sense one can describe the creative team’s work as creating a virtual blueprint of the shot required. The creative information includes a swipe that helps direct the mood or feel that the design team intends to create and might even suggest the lighting treatment. The location of the shot, the products, their placement, and the props and their placement can be specifically set out. Essentially, all of the components required to complete a shot are supplied and laid out by Pi Media. The carpenter would build the set. The photo assistant and assistant stylist would get the merchandise as each may be assigned. The photo assistant would assist with setting up the lighting. The assistant stylist would press clothes and other fabric materials as required. The stylist would style the merchandise. The photographer would work with the stylist to create the desired image and take the required shots.
[10] Prior to the shoot, there would be a pre-production meeting that would include some of the stylists and photographic assistants where a particular shot would be discussed. Pi Media’s art director would discuss the creative concepts and pass out the layouts, drawings and other materials detailing the required shot. Some of the senior stylists such as Ms. Brioux and Ms. Palotay said they would not attend such meetings. The photographic assistants might attend the meetings to gain knowledge regarding the photographic requirements of a shot, however, Mr. Gallagher testified that the photographer would attend more of these meetings. Regardless, everyone was given a specific visual portrayal of how the photographs were to be taken.
[11] As already noted, the team that created the actual photographs consisted of photographers, stylists, photographic assistants and carpenters.[3] Stylists were categorized by Pi Media as being assistant stylists, junior stylists and senior stylists. As well, stylists had their own specialties: on-figure fashion stylists who worked with models; off-figure fashion stylists; hard-line stylists who worked on photo shoots of products; and soft stylists who styled room sets and home fashions such as bedding and drapes.
[12] As to the studios themselves, Pi Media operated two commercial photography studios in Toronto. One, on Benton Road, is a 150,000 square foot facility having 50 photography sets, a merchandise warehouse sale and a carpentry shop. A second facility on Lesmill Road is a 70,000 square foot facility having photography sets, a merchandise warehouse and a carpentry area. Other than location shoots all the photography was performed in one of Pi Media’s studios.
[13] In the subject years, Pi Media employed about 75 persons to work in the two studios including 20 to 25 employee stylists, five to six employee photographic assistants and five employee carpenters. The freelancers worked alongside their counterparts.
[14] Pi Media’s work fluctuated seasonally. The Sears fall and winter catalogue was shot in late January and February. In April to July, Sears Wish Book was shot and in September and October, the Sears spring and summer catalogue was shot. At other times business at the studio was slow.
[15] I turn now to review the testimony of each of the witnesses.
The Testimony of Gary Maclean (Director Photographic Operations)
[16] Mr. Maclean’s testimony provided much of the background summarized above. As to his evidence regarding the working circumstances of the workers concerned with these appeals it was general, although it did provide some insight into the nature of the engagements particularly those of the more experienced workers.
[17] For example, I trusted his testimony that while the layouts were done by the design team, the experienced workers, in general, are largely hired because of their expertise and come with considerable skills. They are individuals who have been in the industry for the most part for a long time and who are able to help produce the ultimate product that would meet the approval of not only Pi Media’s art directors but that of its clients, as well. As these workers were hired for their expertise, they had to perform their work personally.
[18] He confirmed that freelance workers were booked for specific projects lasting from a few days to a few weeks or a month. Generally speaking such workers, once engaged, worked regular hours although they reported in and out so that Pi Media would know who was in the building. If the studio was busy, daily studio hours would be extended from 8:30 a.m. to 5:30 p.m. to 7:00 a.m. to 7:00 p.m. The regiment of regular hours during a project was essentially required so as to keep the team of people required to work on the project available at the same times. Although the workers were generally kept busy through a typical work day, he said that if there was no work, they were free to leave. My impression, however, was that such freedom applied primarily to senior stylists who could not so readily be assigned other work. They were too specialized and were paid by the hour at a rate up to three times the hourly rate of a junior stylist.
[19] As confirmed by other witnesses, Mr. MacLean testified that all the workers entered their time in a system that was similar to time sheets. The system was called a docket max system and time was entered in relation to a specific project. This allowed Pi Media to better understand and forecast time requirements in relation to its projects and assess the profitability of a particular project. It also was relied on as a way to track hours for the purpose of calculating a worker’s pay.
[20] He also testified that freelance workers could accept or decline work from Pi Media on a project by project basis. However, Pi Media could put a hold on a worker if it knew it would require assistance during a particular time. A hold is a booking whereby they hold a worker for a particular time. Freelance workers did not have to work exclusively for Pi Media but if they were put on hold, they would require Pi Media’s permission to be released. If the worker was approached by another studio, the worker would then communicate with Pi Media and ask to be booked or released. Pi Media had to do one or the other. Again, based on the testimony of others, it seems clear to me that holds would only be put on senior stylists.
[21] Mr. Maclean estimated that workers on hold would only be asked to be released about 10% of the time. He estimated that Pi Media would release a hold about half the time that it was requested.
[22] He confirmed that the workers performed their duties at Pi Media’s studios and on location. Pi Media’s studios not only provided the space but provided the lighting, equipment and merchandise as was necessary for the wide variety of shots. The experienced workers were not instructed on what tools, equipment or materials to use to complete their work. Stylists came with their own kit which included clamps and sprays and brushes and the like. Pi Media did not provide tools or equipment to the stylists or to the assistants aside from commercial irons, steamers and ironing boards. Pi Media provided carpenters with large tools, such as an industrial table saw, that were located in Pi Media’s carpentry shop. Carpenters were only expected to bring small tools such as hammers, cordless drills, a work belt and the like.
[23] Mr. MacLean testified that the freelance workers are paid a higher rate of pay than employees. They are paid an hourly or daily rate. A daily rate was charged when Pi Media utilized the services of an agency to find a stylist. The pay rates varied by level of experience. Workers with more experience could command more money. Each worker had his or her own negotiated rate. Factors that influenced the rate were budgets, production value and the experience of the worker. Workers who were paid a fixed daily rate were paid for the full day. Workers were not paid when they were on hold. Workers invoiced Pi Media every week or every two weeks or at the end of a project and were paid by direct deposit or by cheque as requested. Most workers submitted invoices to Pi Media in their own name. Workers were not paid bonuses other than an increased overtime rate of pay. They did not receive vacation pay, sick pay or other benefits from Pi Media.
[24] With respect to the intention of the parties, while he may have given the impression that the engagement of workers as independent contractors was mutual, in general terms, at least in respect of less experienced workers, I am of the view that Pi Media made the decision as to whether a worker would be offered work as an employee or independent contractor. On the other hand, with respect to senior workers, the senior stylists, I am of the view they only offered their services as independent contractors.
The Testimony of Gary Thompson (Carpenter)
[25] I will leave some of my evidentiary findings in respect of Mr. Thompson to my analysis as I find his case to be the most difficult given the conflicting influences of the degree of control over what work he could be assigned and the extent to which he was pursuing his own established business.
[26] As a carpenter, Mr. Thompson was responsible for building the sets for the photo-shoots. He was told what to build by the art director and the studio director and worked off of layouts provided by them. He was supervised by the studio manager and the general manager but did not need close supervision. The manager could also direct him to do various maintenance work. He had to ask permission if he wanted to leave early.
[27] He worked hours that Pi Media needed him to work and he followed Pi Media’s policies. He did essentially the same work as performed by full-time employee carpenters except he did not have to prepare estimates of his time to complete a project.
[28] He provided his own small tools but was provided at no cost many of the tools required in his carpentry work by Pi Media. He was reimbursed for mileage if he travelled to a shoot location.
[29] Mr. Thompson, only worked for Pi Media during the relevant period. He was paid an hourly wage, which he negotiated with the general manager.
[30] He testified that it was his intention to be an independent contractor.
The Testimony of Jason Grenci (Photographic Assistant)
[31] Mr. Grenci’s job was to assist the photographer he was working with. He was provided with layouts that detailed the work that he had to do and his hours were largely determined by the photographer he worked with. However, he did other general tasks for Pi Media as well as assist photographers. He could be assigned such additional work if he completed work that was initially assigned to him.
[32] The studio manager would assign Mr. Grenci to assist a particular photographer. He had no say in the decision. Once assigned, his work would be directed by the photographer and the stylist working on the shot.
[33] He was provided with any and all tools and equipment he needed and performed the same services that were performed by assistants who were employees of Pi Media.
[34] Mr. Grenci was paid an hourly rate of $12 per hour which was the rate he was offered. Other than working additional hours, there was nothing Mr. Grenci could do to earn more money.
[35] While Mr. Grenci said he intended to be an independent contractor, it was Pi Media that determined the nature of the engagement based on what it was prepared to offer.
[36] Mr. Grenci went to work for Pi Media because, according to his own testimony, it was a “great place to start and learn the actual business of photography”. He had no other engagements during the relevant period.
The Testimony of Blaise Misiek (Photographic Assistant)
[37] Mr. Misiek became an assistant as a stepping stone to becoming a photographer in this industry.
[38] He did what he was asked to do by the photographer. He was provided with the layout and plans, the detailed work he had to do, and, he was supervised by the photographer. Like Mr. Grenci, his hours were largely determined by the photographer who he was assigned to by the studio supervisor.
[39] As in the case of Mr. Grenci, he could be assigned additional work if he finished a particular assignment early. There were full-time workers that were engaged as employees who performed similar work as Mr. Misiek.
[40] Pi Media provided him with all the tools and equipment he needed.
[41] He was initially paid $12 an hour but he was given a raise to $14 per hour effective February 1, 2005 but it was reduced slightly only a week later when he was hired as a full-time employee. During the time that he was an assistant his evidence as to whether or not he had other engagements, was vague at best.
[42] As in the case of Mr. Grenci, he said he intended to be hired as an independent contractor, but again I find that it was Pi Media that determined the nature of the engagement based on what it was prepared to offer. He had no other engagements during the relevant period.
The Testimony of Devin Gallagher (Photographic Assistant)
[43] Once again as a photographic assistant, Mr. Gallagher followed the direction of the photographer. He also acknowledged to being under the direction of a stylist, with whom he might be working on a project. He was provided with detailed layouts of the work he had to do and if there were any changes to the project it was the photographer or art director who would instruct him. He was assigned to a particular photographer.
[44] He was supervised by the studio manager who also set his hours of work. He could be assigned additional work if he completed work initially assigned before the end of the day.
[45] Mr. Gallagher’s day-to-day work did not change when he became a full-time employee.
[46] He was provided with all the equipment and tools he needed and was paid an hourly rate of $12 per hour, which was a rate he was offered and accepted. He testified that he would be paid even if he was fixing a mistake that he had made.
[47] Although Mr. Gallagher said he intended to be an independent contractor, it was Pi Media that determined the nature of the engagement based on what it was prepared to offer. Mr. Gallagher worked as a contract worker up until 2005 when he became a full-time employee in August. He earned a small amount in 2004 from another source.
The Testimony of Heather Harton (Senior Stylist)
[48] Ms. Harton was a hard-line stylist. She confirmed that she received specific art instructions and layouts as to what she had to do on a particular project and for a particular shot. She would get things ready for a shot including retrieving and readying merchandise. She was not supervised but had no say as to whether or not a particular shot would be approved or whether or not it needed to be redone. She would follow instructions if there was a change notice given in respect of any shot. In general, she would follow Pi Media’s instructions. She recorded her time in the data system and performed the same duties as senior stylists employed by Pi Media. In general, she followed Pi Media’s general working hours and consulted with a studio manager before leaving early.
[49] She attended handout meetings where the general concepts of projects were assigned and explained. This would be the forum at which a creative direction or process was conveyed by the art directors.
[50] Ms. Harton was, nonetheless, independent in the execution of her responsibilities. It was her job to execute the layouts provided and style a shot in accordance with the creative direction conveyed to her. She was very experienced and capable of understanding and giving effect to the artistic requirements of a shot. She did not need anyone looking over her shoulder in any aspect of her work. If there were problems, she would consult with the art director.
[51] During 2004 through 2006, Ms. Harton worked regularly for Pi Media on a project by project basis. Once on a project she would have to advise a Pi Media supervisor if she could not come in. At times she worked for other studios, although that was not required when she had steady work at Pi Media. One of the studios she worked for other than Pi Media was a studio called McCrae Studios where she charged a daily rate of $400. Still, she worked almost exclusively for Pi Media and her income came primarily from Pi Media throughout the relevant period.
[52] She was provided with a portable commercial steam iron and a professional ironing board for pressing clothes. She did, however, provide smaller styling tools as she felt necessary. She provided her own portable commercial steam iron and professional ironing board when working at McCrae Studios as they did not have suitable equipment.
[53] She had an access card to Pi Media’s studio at all relevant times irrespective of whether or not she was working on a project. She submitted an invoice once a week and was paid every two weeks by direct deposit. She did not have a business account.
[54] Ms. Harton was paid $35 an hour. She determined that rate based on her experience and skills and the amount of steady work Pi Media provided. She said that she had other clients that she charged $40 an hour.
[55] Ms. Harton was not required to provide her services exclusively to Pi Media but Pi Media often had a hold on her time. Even when that was not the case, as mere courtesy to them, she would notify them if she was going to work somewhere. Other studios were sometimes offered a second hold on her time.
[56] Ms. Harton could accept or decline work from Pi Media. She was not obligated to work on any project.
[57] She regarded herself as a freelance independent contractor and conducted herself as such. She got other work on the recommendation of other stylists or photographers that she knew or worked with and if she was available she would go. She had a business card and a GST registration number. She charged Pi Media GST. She claimed business income and expenses on her tax return and made CPP contributions as a self-employed person.
The Testimony of Yvonne Brioux (Senior Stylist)
[58] Ms. Brioux was a soft-goods stylist. Her testimony indicated that she was somewhat less compliant as a worker than the Respondent would have me believe. She regarded the art director’s direction as being general. Even though she could not change a layout and she followed directions as to changes required, Pi Media’s dependence on her expertise came through loud and clear. While she did not decide if a photograph on a particular catalogue page would be of a duvet or bed, her role was to use her creative abilities to make decisions regarding the styling of the merchandise identified by the layouts. She was not supervised in any way in respect of the performance of that aspect of her contractual duties.
[59] She had a flexible work schedule. She was a professional in all respects. She had worked on hundreds of layouts and projects of the nature that Pi Media would require her to undertake on its behalf.
[60] She would be provided with specific projects and specific dates which she could accept or not. Once a project was accepted she would record her time in the normal fashion and comply with the normal schedules and report if she could not be there on a given day. She did not attend pre-production meetings as a rule. She would consult with the photographer and work as part of the team. She was provided with an access code to the studio which she maintained throughout relevant periods.
[61] She was provided with most of the tools that she required for the performance of her duties, although, like other stylists, she had her own styling kit. Her duties were the same as those of employed stylists.
[62] She submitted an invoice once a week. She was paid by the hour, every two weeks and funds went into a personal chequing account. She was paid $38 per hour in 2004 and negotiated that up to $40 per hour in 2005 and 2006.
[63] She was not required to provide her services exclusively to Pi Media. She worked primarily for Pi Media during the subject period. She testified that she had other opportunities for a significant number of shoots for other studios but that she did not take the work because she was offered more work with Pi Media. Like Ms. Harton, she was not paid overtime for additional work hours.
[64] She intended to be an independent contractor. She was a freelancer who worked when it suited her. She was not familiar with other companies such as Quebecor that had significant catalogue work in the subject years. She had essentially retired in 2002 and sailed with her husband. She refused full-time employment with Pi Media as she wanted to work when and as she pleased. She could call for work after a sailing trip with her husband or otherwise when she wanted and could work.
[65] She did not have a business card, a registered business name or a personal portfolio. She did not charge GST. She paid CPP as a self-employed person but requested income tax deductions from her cheques in order to avoid a liability at the end of the year. She received no benefits from Pi Media.
The Testimony of Klara Palotay (Senior Stylist)
[66] Ms. Palotay was a senior stylist who did off figure and soft-line styling with a specialty in styling drapes. While she received all her instructions from the layouts and swipes provided to her by the creative team, she not only did not require any supervision, but was relied on for her artistic talent to create a desired look or effect or even to suggest a particular set. She was given latitude to create a style to show drapes and she suggested that she, or she and the photographer, were given considerable latitude to create a desired style for a shot. However, she would have to comply with a change notice. She was supplied with any required tools and sets.
[67] She was free to and did, for example in 2006, work for other studios although her primary engagements were with Pi Media. In 2004 and 2005 she did not work for any other studio. She could refuse a project and subject to the restraints of a project and the team with which she worked, she could determine her own work hours. The restraints of working with a team, however, limited such freedom. She could leave whenever the project requirements for the day were finished. She reported in if she could not make it in on a day she was scheduled to work.
[68] Ms. Palotay negotiated her rate of pay at $35 per hour without deductions or benefits. Her time was punched in, in the same manner as a full-time employee. She had an access card throughout the subject period even though there were a considerable number of days during that period where she did not work for Pi Media.
[69] Ms. Palotay invoiced her work and charged and remitted GST although on her 2006 tax return she showed income from Qnet (Quebecor) as employment income because she was issued a T4 slip. Still, she considered herself a freelance stylist. She negotiated a pay rate of $35 an hour – had no deductions taken from her pay and received no benefits. She maintained a personal portfolio and had a registered business name.
The Testimony of Iris Simpson (Senior Stylist)
[70] Ms. Simpson was an on-figure stylist. She acknowledged that she attended pre-production information meetings where she was shown what layouts, staging and props had been selected for a shot. The portrayals were the product of the creative team who essentially dictated the desired effect and mood. But Pi Media would largely rely on the stylist’s ability to create the desired effect. The stylist would pick the particular model to reflect the desired mood: for example, “a young businesswoman: fashionable but not edgy”. Ms. Simpson testified that the layout was just the guideline for the fashion shot. Her role was to exceed the client’s expectations and sometimes it was her poses that were the ones chosen and printed in the catalogue.
[71] That is, it was the overall look that was generated by the art department. Execution of that look was for the stylist. She would book the hair and make-up people and could decide many of the final details of the shoot such as the models’ hair styles (straight, blown etc.) and, in consultation with the photographer, their positioning which would be largely consistent with that set by the creative team or swipe. She was not subject to Pi Media’s direction on how to prepare for or even schedule a shoot.
[72] Ms. Simpson invoiced Pi Media and charged GST. She had a registered business. She had her own very extensive and impressive portfolio which she sent to prospective clients to promote her services. She could decline work, was free to work with other studios and did so during the relevant period although her primary engagements were with Pi Media.
[73] Like the other stylists she performed her services for Pi Media primarily at its premises and had to perform her services personally during regular hours although she had some freedom to determine her hours. She returned her access card after each project. She had an extensive styling kit that went way beyond anything described by the others. It included props and clothing, belts, fabrics, jewellery, makeup, even a buttocks enhancer and a lot more from stain removers to irons. The list was long.
[74] She filed income tax returns as a person in business, had a home office and claimed expenses related to her kit items of over $6,500 for supplies and props in 2004. She was paid a daily or hourly rate which she negotiated. She viewed herself as a freelance, self-employed worker.
The Testimony of Sarah Rodrigues (Assistant – Junior Stylist)
[75] Ms. Rodrigues graduated from Humber College in fashion in April 2005 and started work as an assistant on-figure stylist in May 2005. She considered herself as a freelance independent contractor although she acknowledged she was told by Pi Media that that was how she was being retained.
[76] As an assistant she did not work on the set with the stylist, the photographer or the models. She pressed clothes, retrieved and put them away and followed the direction of a supervisor, as well as the stylist she was assigned to. She testified that she received training from Pi Media during this period and shadowed a senior stylist during the last few months.
[77] Pi Media taught her how to read a layout, instructed her on how to use their data time system and how to retrieve the required clothing, props and merchandise for a shoot. She was also under the direction of the stylist to whom she was assigned and she had no say in the stylist that she was assigned to assist. Based on the testimony of one of the senior stylists, assistant stylists were pretty much there to do whatever the senior stylist asked of them.
[78] The producer at Pi Media would also provide instructions on how Ms. Rodrigues was to do her work. More generally she was supervised by Pi Media’s supervisor of the fashion department on a need-to-know basis.
[79] In October, 2005 she became a junior on-figure stylist now attending pre-production meetings working on set with the models and photographer. However, she was strictly limited to doing retail weekend flyers which as she said had “a smaller book”. It was her “start as a stylist”. It was her first experience styling an on-figure fashion shot. She did get to work directly with the models, pinning clothes to fit, and makeup people. She said as a junior stylist that she could book a model but in consultation with an art director. She said that she could book the hair and make-up artist but admitted that she had the help of other more experienced stylists given her lack of knowledge and experience. She also testified that later, as a producer, her job was to book schedules: dealing with modeling agencies, booking models and hair and makeup artists. That being her role as producer makes me leery of accepting that she had a significant role in that area as a junior stylist although I accept that senior stylists played a big part in such decisions.
[80] As a junior stylist she said she had similar duties as a senior stylist but being less experienced she could not do catalogue work which she described as more “finicky” and since she was just starting out, “they” did not want her to start out on catalogues. There was no direct supervision once she became proficient in her work and could be assigned projects on that basis. There were occasions, however, when the supervisor was not satisfied with a shot and she would be instructed how to better style or improve it.
[81] As a junior stylist she said that she had some creative responsibilities on set and, again in that respect, saw her role as not much different than that of a senior stylist. While she made such claims, I note that her testimony was not always consistent on the extent of her ability to style a shot on her own.
[82] In September of 2006 she became a producer and continued in that capacity as a full-time employee in January, 2007. As a producer she had to book schedules that coordinated the team of players needed to produce a required shot. She learned how to bring a layout into production. She detailed the required merchandise and backgrounds and organized everything into schedules.
[83] During the time she was an assistant and junior stylist her hours were determined by her supervisor but once assigned, when Pi Media had work for her, she performed her duties at Pi Media’s studio on a regular daily 8 hour basis. She was provided with an access card which she did not return after the completion of a project. In the beginning, there were odd days when Pi Media did not need her services, but after a few months she was working regularly at Pi Media. Initially, she was earning $9 an hour but over time her rate increased as she be