Johnson v. M.N.R.

Johnson v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2018-10-22
Neutral citation
2018 TCC 201
File numbers
2017-161(EI), 2017-162(CPP)
Judges and Taxing Officers
Pierre Archambault
Subjects
Employment Insurance Act
Decision Content
Docket: 2017-161(EI)
BETWEEN:
RENEE JOHNSON,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
THE BUTLER DID IT INC.,
Intervenor.
Appeal heard on common evidence with the appeal of Renee Johnson, 2017-162(CPP), on July 11 and 16, 2018 at Toronto, Ontario.
Before: The Honourable Justice Pierre Archambault
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Rini Rashid
Counsel for the Intervenor:
Stephanie J. Kalinowski
Frank Cesario
JUDGMENT
The appeal pursuant to subsection 103(1) of the Employment Insurance Act is allowed and the decision of the Minister of National Revenue dated November 24, 2016 is vacated on the basis that the appellant held insurable employment with the payer, The Butler Did It Inc., during the period from January 1, 2015 to November 28, 2015.
Signed at Ottawa, Canada, this 22nd day of October 2018.
“Pierre Archambault”
Archambault J.
2017-162(CPP)
BETWEEN:
RENEE JOHNSON,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
THE BUTLER DID IT INC.,
Intervenor.
Appeal heard on common evidence with the appeal of Renee Johnson, 2017-161(EI), on July 11 and 16, 2018 at Toronto, Ontario.
Before: The Honourable Justice Pierre Archambault
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Rini Rashid
Counsel for the Intervenor:
Stephanie J. Kalinowski
Frank Cesario
JUDGMENT
The appeal pursuant to subsection 28(1) of the Canada Pension Plan is allowed and the decision of the Minister of National Revenue dated November 24, 2016 is vacated on the basis that the appellant held pensionable employment with the payer, The Butler Did It Inc., during the period from January 1, 2015 to November 28, 2015.
Signed at Ottawa, Canada, this 22nd day of October 2018.
“Pierre Archambault”
Archambault J.
Citation: 2018 TCC 201
Date: 20181022
Docket: 2017-161(EI)
2017-162(CPP)
BETWEEN:
RENEE JOHNSON,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
THE BUTLER DID IT INC.,
Intervenor.
REASONS FOR JUDGMENT
Archambault J.
[1] Ms. Renee Johnson is appealing (EI appeal), pursuant to the Employment Insurance Act, S.C. 1996, c. 23 (Act), a decision of the Minister of National Revenue (Minister). By her decision dated November 24, 2016, the Minister confirmed the rulings officer’s decision, made on June 2, 2016, that Ms. Johnson was self-employed when she performed her services for The Butler Did It Inc. (payer or BDI) during the period from January 1, 2015 to November 28, 2015 (relevant period). A similar appeal (CPP appeal) was made pursuant to the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] BDI, through its attorney, filed a Notice of Intervention on March 20, 2017 in each of the EI and the CPP appeals.
I. THE ISSUES
[3] The issue in the EI appeal is whether Ms. Johnson was employed in insurable employment with BDI throughout the relevant period. As the issues are essentially the same in both appeals, it was agreed that the decision rendered in the EI appeal will apply in the CPP appeal.
II. ASSUMPTIONS OF FACT BY THE MINISTER
[4] In her Reply to the Notice of Appeal, the respondent set out the assumptions of fact on which she relied in making her decision:
13. In making [her] Decision, the Minister relied on the following assumptions of fact:
(a) the Payer operated a business which provided staffing for catered events within the Toronto area; (admitted [1] )
(b) the Payer provided qualified personnel such as bartenders and servers to its clients (the “Clients”); (admitted)
(c) the Payer is a registered corporation, located in Toronto, Ontario; (no knowledge)
(d) the Payer has been operating since 1989; (no knowledge)
(e) on January 1, 2012 the Payer amalgamated with 1508658 Ontario Inc.; (no knowledge)
(f) the individuals who controlled the day-to-day operations of the Payer were:
(i) James Nienhuls—President;
(ii) John Sowden—Vice President;
(iii) David Smith—Director of Operations; and
(iv) Sean Bruno—Scheduling Operations Manager; (admitted)
(g) the Payer employed 10 to 12 full time employees in its administrative offices; (no knowledge)
(h) the Payer had a roster of approximately 830 workers who were retained on an as-needed basis to provides [sic] services to the Clients; (no knowledge)
Appellant
(i) the Appellant was hired by the Payer as a banquet server; (admitted)
(j) the Appellant was hired under a written agreement with the Payer on April 21, 2015; (no knowledge)
(k) the Appellant’s duties included:
(i) setting up tables; (no knowledge)
(ii) serving food and beverages; and (admitted)
(iii) tearing down; (admitted)
(l) the Appellant performed her duties at the Payer’s Clients’ venues which included hotels, banquets, conferences etc.; (admitted)
(m) the Appellant determined how to do the job; (denied)
(n) the Appellant provided her services according to her own availability; (admitted)
(o) the Appellant was not required to complete a set number of hours with the Payer; (denied)
(p) the Payer provided optional training to the Appellant; (admitted, but the word “optional” is denied)
(q) the Appellant was not paid for the optional training; (admitted, but the word “optional” is denied)
(r) if the Appellant accepted the optional training, she would receive a raise, after a few shifts; (admitted, but the word “optional” is denied)
(s) the Appellant could perform her services for any other payer; (denied)
(t) the Appellant was not supervised by the Payer; (denied)
(u) where there was a supervisor at an event, the Appellant received details such as timing of the course of events over the evening; (admitted)
(v) the supervisors at the events would not direct or control how the Appellant performed her services; (denied)
(w) the Appellant’s initial rate of pay was $14.00 per hour; (admitted)
(x) the Appellant had the ability [to] negotiate for a higher rate of pay; (denied)
(y) the Appellant invoiced the Payer on a monthly basis; (denied)
(z) the Appellant was paid on a monthly basis; (admitted)
(aa) the Appellant was paid by cheque; (admitted)
(bb) the Appellant was not provided with any benefits from the Payer; (admitted)
(cc) the Appellant was not entitled to vacation pay or paid vacation; (admitted)
(dd) the Payer contacted the Appellant by email when work assignments were available; (admitted)
(ee) the Appellant had the ability to refuse or to accept a work assignment; (admitted)
(ff) the Appellant was required to advise the Payer if she was unable to work a scheduled shift or event; (admitted)
(gg) the Appellant could subcontract her work out to another individual; (no knowledge)
(hh) the Appellant provided her own uniform, corkscrew, lighter, note pad and pen; (admitted)
(ii) the Appellant’s uniform consisted of black dress pants, socks, shoes and a classic dress shirt; (admitted)
(jj) the Appellant was responsible for the replacement of her tools and equipment; (admitted)
(kk) the Appellant was responsible for obtaining her “Smart Serve” certification; (admitted)
(ll) the Appellant did not incur any significant expenses; (admitted)
(mm) the Payer intended to hire the Appellant as an independent contractor; and (denied)
(nn) the Payer issued a T4A slip to the Appellant for the Period. (admitted)
III. FACTUAL BACKGROUND
A. BDI
(1) Mr. John Sowden, VP
[5] Mr. Sowden (BDI’s vice-president and one of its shareholders) testified on BDI’s behalf. He has been in the hospitality business for 40 years. He started very young as a worker in a fast-food restaurant chain doing dishwashing; he went to college and obtained a diploma as a food and beverage manager. After his studies, he occupied the position of general manager in several restaurants. He even opened one of his own, which he operated for eight years.
[6] He has been working for BDI for the last 15 years. He started as an operations manager. He confirmed that BDI has been in business for 29 years. He is still close to the operations aspect of the business, as evidenced by the fact that he attends approximately 100 events per year, which represents two or three times a week.
(2) BDI’s business as described on its website
[7] “BDI provides services to people or organization that wants to stage events or receptions such as weddings, corporate parties and so on. BDI provides the staffing required for such events”. In her book of documents, [2] Ms. Johnson produced some of the pages from the BDI website, which she printed out on April 20, 2017.
[8] On pages 1 and 2 of Tab 6, it is stated:
. . . For over 20 years, we have been staffing events for Toronto’s top caterers, venues, event planners and private functions. Our commitment to customer service and communication has earned us the distinction as Toronto’s finest event and hospitality staffing firm. We treat each function as a unique affair, putting together a team of experienced service professionals to meet and exceed the specific needs of each event.
OUR SERVICES
. . .
The Butler Did It staff are distinguished by their level of professionalism. All our staff go through our Standards of Professional ServiceTM program. We build our event staff teams from among a pool of the finest hospitality professionals.
Our supervisors and Head Waits are Food Safety certified, and all our staff are Smart Serve certified, covered by WSIB and fully insured—ensuring responsible alcohol service and protecting you and your guests.
Once you make a request for staffing, a sales representative will work with you to determine the exact staffing needs for your function.
[Underlining added.]
[9] During his testimony, Mr. Sowden confirmed that it is BDI that pays the premiums to the Workplace Safety Insurance Board (WSIB) for all of its employees and the butlers at a cost of approximately $70,000 per year. In addition, BDI has an insurance policy that covers its third-party liability up to an amount of $10 million, for which it paid $20,000 in 2017. The amount may have been slightly lower in 2015.
[10] The professional staff is described on the website as follows:
Our Service Professionals
Supervisor
OUR SERVICES
A Supervisor [3] is your direct liaison with the Butler team and is responsible for:
contacting the client before the event…
Wait Staff Support Staff Head Wait Bar Staff Culinary
[Underlining added.]
[11] Reproduced below are some of the testimonials posted on the BDI website. An event manager provided the following testimonial:
“Firstly, you went completely above the call of duty to assist us with the unforeseen issues we experienced, and this was extremely impressive and very much appreciated. Secondly, Michael and the other two team members were by all reports absolutely amazing on site. They really stepped in at the last minute to make the event a great success.”
[Emphasis added.]
Another client, an event coordinator, wrote:
“We’d like to thank you for all your help during our Staff Holiday Party. The event went flawlessly and we couldn’t have done it without your support! Thank you again for supplying us with some amazing staff. Your team have been incredible to work with!”
[Emphasis added.]
Another client wrote as follows:
“ . . . Christian, was an absolute pleasure to work with and took all the pressure off of my shoulders! He managed his staff impeccably and what a wonderful staff we had! Thank you so much again and it was so appreciated.”
[Underlining and bold emphasis added.]
Another testimonial states:
“ . . . It was a great success and it was due in large part to your exemplary staff. I wanted to pass along my sincere thanks for the level of service your staff have exhibited . . .”
[Emphasis added.]
Yet, another reads:
“As a wedding and event designer, one of the most important elements of running a successful, seamless event is reliable, courteous staff. The Butler Did It provides exceptional services with professionalism and flare [sic] . . .”
[Emphasis added.]
And still another client wrote:
“With so many events happening in one year it was reassuring to know that all staffing needs, from large, high-end functions to small, home dinner parties would be staffed with professional, courteous, responsible and reliable personnel. It continues to be a pleasure to work with you and your team and I would like to thank you for all of your help this past year . . .”
[Emphasis added.]
(3) BDI’s business as described by Mr. Sowden
(a) The clients
[12] Mr. Sowden described BDI’s business as filling staffing needs of different organizers of receptions, such as caterers and event planners, and of venues such as hotels (Ritz Carlton and the Hilton), restaurants, the Scotiabank Convention Centre, Maple Leaf Sports & Entertainment venues, golf and country clubs, the Royal Ontario Museum and the Art Gallery of Ontario. BDI is involved with all kinds of different events, such as weddings, the Rogers Cup tennis tournament, the Toronto International Film Festival and events for various corporate clients. He described BDI’s high season as being from May to June and from September to December. The company could meet staffing needs for events for anywhere from five guests to five thousand. However, the average is between 500 and 1,000. Generally, the staffing for such events is provided at a ratio of 1 to 15. So for an average gathering of 750 guests, there would be one supervisor and 2 head waiters and a wait staff of approximately 50 to 60 butlers. BDI paid its supervisors at an hourly rate of $20 to $25.
[13] I asked Mr. Sowden to provide a copy of a typical contract with BDI’s clients. Such a document could not be provided. However, Mr. Sowden explained that BDI would bill its clients at an hourly rate of approximately $22 to $23 for each of its butlers and supervisors. In addition to the hourly rate, the clients could be billed for the transportation costs of the staff provided.
(b) The administrative staff
[14] During the relevant period, BDI had ten permanent and two part-time management employees.
(c) The butler staff
[15] The number of workers BDI hired for staffing events was approximately 600 in the relevant period and today it hires approximately 800. They are recruited by advertising on its website and by word of mouth. Candidates are invited to an open house at which they are screened.
[16] Mr. Sowden described the profile of its workers as being students and persons, such as actors and actresses, in the process of establishing themselves in a more permanent activity. He estimated that 50% of his staff was made up of students.
[17] He stated that some of these students would be working for other agencies to fill up the hours during which they were available. However, no such workers testified to corroborate this statement. In addition, Mr. Sowden testified that some of BDI’s workers were incorporated. However, again, no one testified, and no documentation was introduced, to this effect. On the other hand, Ms. Johnson testified that she did not know of anyone who would have been incorporated.
[18] According to Mr. Sowden, the butlers were always told they were going to be treated as independent contractors. Almost everyone working as butlers for BDI preferred to be treated as such in this “gig economy”, to use his expression. That way, the butlers would be entitled to write off their expenses for tax purposes. Besides Ms. Johnson, no other butler testified at the hearing.
(d) The assignments
[19] In his cross-examination by Ms. Johnson, Mr. Sowden recognized that the assignment process was controlled by BDI, more specifically by BDI’s scheduling manager, who would decide which position at a particular function would be filled by a particular butler: for example, whether Ms. Johnson would perform her services as a waitress or as a coat check attendant. However, regardless whether one acted as a coat check attendant, a server or a bartender, the remuneration would be the same.
[20] Mr. Sean Bruno, an administrative employee, is the person in charge of scheduling operations. Mr. Sowden indicated that approximately 80,000 shift assignments are done every year. The assignments of butlers are usually scheduled three months ahead of time by email. Each butler is asked to confirm his or her availability for the event. The butlers on the roster are not required to accept all assignments offered them, nor is BDI required to offer a minimum number of assignments. [4] However, butlers who refuse too many risk being taken off the roster. Should there be a last-minute problem, butlers who have accepted an assignment are required to use an emergency phone line to inform BDI.
[21] If for a particular event 100 butlers were required, 105 would be assigned because, in BDI’s experience, there is always a certain number of butlers who do not show up. He also acknowledged that, should all the assigned butlers appear for the event, BDI would pay their remuneration.
[22] If a particular butler cannot make it, that butler does not have an obligation to find a substitute. If the butler recommends one, that replacement has to be approved by BDI.
(4) BDI’s business as described by BDI’s lawyers in the Notice of Intervention
[23] I believe that the expression “staffing referral service” used by BDI’s lawyers in their Notice of Intervention to describe the business is misleading. The impression that one gets on reading these words is that the business of BDI consists only in referring butlers to its clients, who would then hire them. Generally, BDI does not limit its services to providing staff: it also provides the supervisory staff necessary for the work to be executed. Some of its clients are described as catering companies and event planners. It would thus appear that these catering companies are subcontracting a portion of their services to BDI, which will execute the tasks of carrying the food and the drinks from the bar and from the kitchen to the tables of the guests. So it is more accurate to say that BDI provides banquet serving services to its clients’ guests at the events, although it does not provide the equipment, such as the plates, the cutlery and the glasses.
B. Ms. Johnson’s general background and education
[24] Ms. Johnson was 46 years old during the relevant period. While in Calgary, she obtained a certificate in administrative secretarial work at “Career College”. [5] After she moved from Calgary to Toronto, she could not find work, so she enrolled in a two-year paralegal program at Humber College. After graduating from Humber, she was not able to find work as a paralegal. She had intended to establish a business in that field, but it was difficult to do so because she needed to build up a clientele.
C. The hiring by BDI
(1) The open house
[25] While looking for job opportunities, Ms. Johnson saw on the Internet an invitation to attend an open house organized by BDI, which was looking to hire servers and bartenders. She accepted in June 2014 an offer by BDI to work as a banquet server.
[26] At the interview, which took place at the open house, she met Mike Nickerson, whom she described as an operations manager, and Mr. David Smith, who is described as director of operations in paragraph 13(f) of the Reply to the Notice of Appeal.
(2) Ms. Johnson’s experience as a worker in the hospitality business
[27] During the aforementioned interview, she described her work experience as a waitress and bartender. She would carry plates when working as a waitress. In her testimony, Ms. Johnson described her experience in the restaurant and bar business. She mentioned that she had been a volunteer bartender at the Muhtadi International Drumming Festival, which takes place once a year in Toronto and lasts two days. In her résumé, [6] filed by BDI, she states that she has been a volunteer at that festival since 2007. So in 2015 it would have been for eight years. At the time of the BDI open house, she had also been doing work for a small agency called Server, Servers and Shakers since October 2011, preparing food and vegetable trays, heating and serving food for guests, serving appetizers and alcohol, washing dishes and cleaning the preparation area. She testified that this would occur two or three times a year, usually at the residences of the agency’s clients. These would have been six hour events.
[28] In addition, Ms. Johnson worked in truck stop restaurants as a waitress during her summer vacations and for a few months during her school year when she was a teenager in Calgary. She also worked for Wendy’s and McDonald’s.
(3) The hiring agreement
[29] Ms. Johnson testified that she was never told at the open house or at the initial orientation which followed that she was being hired as an independent contractor. However, she acknowledged that she was told there would not be deductions at source from her remuneration. She also stated that she did not sign any written contract in June 2014 when she was first hired by BDI.
[30] To Mr. Sowden’s knowledge, Ms. Johnson never complained to BDI about being treated as an independent contractor or about the fact that there were no withholdings at source for 2014 and 2015.
(a) The sign-off sheet
[31] During her cross-examination, Ms. Johnson discussed the document appearing in Exhibit I-1, Tab 5, which is described as the “Sign Off Sheet”. In this document, Ms. Johnson states that she understands the conditions for working for 1508658 Ontario Inc. (an entity which is assumed by the Minister, according to paragraph 13e) of the Reply to the Notice of Appeal, to have been amalgamated with BDI in 2012). The sign-off sheet appears to be a document taken from a website because it says that “[b]y checking the box below and typing your name into the Sub-Contractor Signature box, you are confirming that the above statements are true. You agree that by typing your name, you are electronically signing this document.” However, on the document filed, there are handwritten check marks next to “I agree”.
[32] Ms. Johnson recognized her signature in the disclaimer box bearing the heading “Disclaimer and Hardcopy Signature”, in which it is indicated that “[b]y signing below, I agree that I have read and agreed to the terms and conditions of the following forms that I have filled and signed”. One of the forms is an Independent Contractor Agreement next to which there is a handwritten check mark in the “I agree” box, and next to that the date “Jun, 10th/14” is entered by hand. Ms. Johnson recognized her signature, but she denied having checked the boxes and written the dates appearing in that disclaimer box. In all likelihood, this was done by Ms. Christine Latimer who was described by Mr. Sowden and in emails filed in Exhibit A-1 as the people manager and whose job was to take care of the hiring process.
[33] In Ms. Johnson’s mind, by signing her name she only agreed that she was being hired seasonally at the rate of $14 per hour. It should also be stated that the sign-off sheet states the following in item number 2: “I will submit a monthly invoice by the 5th of each month for all shifts worked in the previous month.” Ms. Johnson also testified that she had looked for the written independent contractor agreement that she had allegedly read and signed but had been unable to find such a document.
(b) The Food Handlers Agreement
[34] A copy of an independent contractor agreement (Food Handlers Agreement) between The Food Handlers (Food Handlers) a division of The Butler Did It Inc., and Ms. Johnson, dated April 21, 2015, was produced as evidence. This agreement is signed only by Ms. Johnson. At paragraph 5 of the agreement, it is stated that the subcontractor—this is how Ms. Johnson is described—is not an employee of the contractor (Food Handlers). Although she signed this agreement, Ms. Johnson testified that she never actually worked for Food Handlers. The work for this company would have involved being in the kitchen helping a chef by doing such chores as peeling potatoes, cleaning vegetables and doing the dishes. In the present case the payer is BDI and not Food Handlers.
[35] Ms. Johnson acknowledged that she read the agreement before signing it and realized that she was described as an independent contractor and not as an employee. However, she said she had received that document by email and that she signed it because she needed a job. She had been in school for two years and social services does not pay rent. She was in a difficult situation and had to work for her living. She sent the document back by email. So it was out of necessity that she signed it. In addition, she did not obtain legal advice with respect to the agreement.
(c) Culinary Butler Application Form
[36] Another document which was also signed by Ms. Johnson on April 21, 2015 is entitled The Culinary Butler Application Form. [7] On this form, it is indicated that Ms. Johnson heard about The Culinary Butler from Mike Nickerson. It is interesting to read on page 2 of the document the applicant’s acknowledgement “that I will attend the information and orientation session as a condition of being a subcontractor.” On the form, Ms. Johnson indicates that she is available on Thursdays and Saturdays after 2 p.m. and for evening shifts. She also checked the box for full-time availability (at least four shifts per week). It should be noted that part-time availability is described as at least one to three shifts per week. Occasional availability is described as being at least one shift per month. In this document, Ms. Johnson indicates that she has food handling certification and a Smart Serve card, and that she has experience in banquet/catering service, restaurant service and stations. Even if she did make this application, Ms. Johnson never worked for The Culinary Butler division.
(d) BDI Agreement
[37] When Mr. Sowden testified, he filed a typical written agreement, the BDI Agreement between BDI and its workers. [8] It resembles the Food Handlers Agreement signed by Ms. Johnson. However, he was not able to produce the agreement between Ms. Johnson and BDI. When I asked Mr. Sowden the purpose of section 3 of the agreement, which states that the term of the agreement is one year, considering that under section 4 it could be terminated at any time on written or verbal notice. The witness was not able to explain this.
(e) The missing guidelines
[38] Ms. Johnson was not aware what the Standards of Professional Service Guideline referred to in paragraph 1.f(i) of both the Food Handlers Agreement and BDI Agreement was. Mr. Sowden acknowledged in his testimony that the Guideline was a 15-page document attached to the agreement. However, he did not bring it to court and he could not produce it during his testimony.
(f) The remuneration
[39] According to Ms. Johnson, she did not and could not negotiate her hourly rate of $14. That was all decided by BDI. Mr. Sowden insisted that the butlers could come at any time and discuss a raise in their remuneration even though Ms. Johnson did not do so.
[40] Although BDI clients do not normally pay tips to the butlers, if any were offered, they would be distributed among the staff. The usual circumstance in which this could happen is at a private function. Ms. Johnson also confirmed that the BDI workers were not allowed to ask for tips. In Exhibit A-1, Tab 23, there is an email discussing the distribution of tips. During her testimony, Ms. Johnson said that this sort of distribution occurred only in the context of one outside festival held once a year. She only got $100 for that event, although she had expected that the workers would have received a lot more.
[41] According to Ms. Johnson, the minimum hourly wage at the time for workers in Ontario was $10 or $11 while waiters would receive a lesser amount under the Ontario minimum wage standard. However, she acknowledged that waiters would usually be entitled to gratuities.
[42] She also confirmed that there was no contractual relationship between her and the venue or the clients serviced by BDI.
D. Training by BDI
[43] When Ms. Johnson was hired at the open house, she was told that she had to attend what she described as a training session. She also received an email [9] telling her to attend what BDI described as orientation on Tuesday, June 10, 2014. The email is entitled “Welcome to the Butler Did It Seasonal Team” and signed by Christine Latimer from “The People Department” of BDI, which looks like a euphemism for Human Resources Department.
[44] This document states that there is to be a “Uniform approval (mandatory)—ONE HOUR PRIOR to the Orientation start time”, and that uniform sale and approval will end 15 minutes before the orientation start time. It adds that the orientation “begins PROMPTLY and last 3 hours. Latecomers will not be permitted.”
[45] The email describes the orientation attire as follows:
Plain black long-sleeved dress shirt.
Note: Also bring White Dress Shirt (same criteria as Black Dress Shirt)
Plain, black wide tie
Plain, black dress pants (no cotton / denim, not tight fitted)
Black polishable dress shoes (no runners / ballet flats)
Black plain Vest (No Shiny back, No Buckle, Plain) (Preferably purchased through us at Orientation as it is difficult to get approved)
Items available at Orientation Uniform Sale: Shirts: $18.00 (+tax), Vest . . . $27.00 (+tax), Tie: $10.00 (+tax) via Cash, Visa, and MasterCard.
[Underlining added.]
[46] Ms. Johnson testified that she brought her own clothes and did not purchase them through BDI. However, her uniform had to be approved.
[47] The email describes what it means to be a seasonal hire: “Season ends July 31st, 2014 Rate of pay: $14.00”. It also advises that the following missing documents are “required” for the orientation: Smart Serve Card, three references and confirmation that Ms. Johnson has completed the “Ministry of Labour Health and Safety for Workers Online Training”.
[48] In order to obtain a Smart Serve card, Ms. Johnson had to watch a one‑hour video presentation and pass the test which is included in the one-hour video presentation. This card allows a worker to serve alcohol and is a requirement of the Ministry of Health in Ontario. Relying on his own experience in obtaining such a card many years before the relevant period, Mr. Sowden testified that the video lasted two hours and that those viewing it would be told about the limits as to the amount of alcohol that a server can offer to a particular guest, about a guest’s capacity to drink based on the guest’s size and, in the case of a woman, depending on whether she is pregnant. The cost of that Smart Serve card is approximately $40 and this is a one-time expense. The card does not have to be renewed every year or at other intervals.
[49] One has also to watch a one-hour video presentation on work safety, with regard to chemicals, for example. Ms. Johnson got her Smart Serve card in 2006 for the Drumming Festival and obtained the work safety certificate in 2014 at the request of BDI.
[50] The orientation session was given by Michael Nickerson and David Smith. At the session, they described the butlers’ duties and the three types of service to be provided. They taught the servers how to attach the tablecloth to a table, how to set up the table, how to fold napkins, how to arrange the plates, the glasses and the utensils, how to approach a guest, i.e., on which side guests were to be served.
[51] The first type of service is French service. This involves carrying up to three plates in one hand. According to Ms. Johnson, during such service all the servers work as a team and enter the room in procession following the team leader or supervisor. The supervisor directs the servers regarding the table for which each is to be responsible.
[52] The second type is called simultaneous service. During such service, the servers stand with one plate in each hand between two guests at the table—at which 10 to 12 persons are normally seated—and all the servers present the plates at the same time at the signal of the team leader.
[53] The third type is called banquet trays, which means that one server carries the plates on a tray and deposits the tray on a table near the guest table and another server takes the food from the tray to the guest. After the server has brought the tray to the table, he or she returns to the kitchen for the other trays. While they are in the kitchen, a person described as an expeditor informs the servers about the different plates on the trays.
[54] In the email at Tab 4 of Exhibit A-1, the BDI server and bartender staff are told about additional “[u]pcoming 2.0 / 3.0 / 4.0 Orientations” with BDI. These additional sessions were to last between one and half and two hours. Each orientation entitles the server to a 50 cent hourly increase in remuneration. However, a minimum number of assignments is required between these so-called orientation sessions. Furthermore, the email states that if a person attends a particular orientation more than once, that person will receive only one 50 cent increase for that orientation. This document is signed by Christine Latimer.
[55] According to Mr. Sowden, these orientation sessions were abandoned after 2015 because, in his view, they were not working.
[56] Further training is offered by BDI to its workers on an ad hoc basis, as illustrated by the following email [10] from the bookings department dated January 29, 2016, and dealing with available shifts. It is stated in that email:
This is just a quick note that we are looking to fill a few more spots tomorrow at the Metro Toronto Convention Centre . . . at 4pm. This is a Banquet Tray Dinner Service so you need to be comfortable with Banquet Trays. If you would like to practice we have spot [sic] set up in our office for you to drop by and practice (please ask for available drop in times if you would like to utilize this practice).
[Emphasis added.]
[57] There is another example in an email [11] of March 10, 2016. The servers working for BDI are being informed by the bookings department about the launching of a new scheduling platform called Next Crew to provide a faster way for the staff to receive the latest booking requests for shifts. The email states:
. . . In this fast moving market we are doing all that we can to provide you with alerts of openings in a way that you can respond to with ease.
We have already pre-loaded your basic information into Next Crew. All you need to do is log into the link below and update your profile. . . .
. . .
We have attached step by step procedures on how to update your profile once you log in. Please take the time to update your profile so that we have accurate information on file. We are asking that you update your profile before March 25th.
If you would like “live” support with updating your profile we have set up weekly tutorial sessions in the office. You can drop by the office any Tuesday from now until March 25th between the hours of noon and 4pm and someone will be available to help you. If these times are not convenient for you please give us a call and we will arrange an alternate time.
[Emphasis added.]
Attached to the email is a PDF file entitled “NC Step by step instructions”.
E. Work during relevant period
(1) Duration of work
[58] Although the relevant period is from January 1, 2015 to November 28, 2015, Ms. Johnson testified that in 2015 she really only worked as a server from June to November. In 2014, she was hired in June and, contrary to what was indicated in the welcome email, she continued working past July 31 up until the end of December.
(2) Direction and supervision
(a) Reporting at the beginning of the assignment
[59] At the beginning of a reception, the servers were to report to a BDI supervisor or team leader who would normally make a roll call to ensure that all the servers were present. There would be a sheet on which the server would sign in to confirm the date and the server’s time of arrival and then sign out at the end of the evening. On June 16, 2015, someone from the BDI accounting department asked Ms. Johnson for her “sign-out time for Friday night at the ROM”. [12]
[60] During a particular reception, the representative of the venue or the client would normally talk to the supervisor, who would then inform his team leaders as to the client’s expectations. Sometimes, the venue would delegate to BDI full responsibility for conducting the reception.
[61] The assignment received by email ahead of time from the BDI bookings department would have specified the position the worker would hold at the event in question, i.e., bartender, server or coat check attendant. It was also BDI that decided which venues and how many shifts were offered to its workers.
[62] At the event, the supervisor or the team leader would specify in greater detail the task to be performed by the worker. If the circumstances warranted it, the supervisor could decide to change the position that had been assigned to the worker in the email.
[63] Depending on the size of the reception, whether a wedding or a corporate party, the staff provided by BDI would be composed of 50 to 60 servers divided into teams of five or six servers, each team generally being led by a team leader. Mr. Sowden indicated that when you are serving 750 guests all the food must be served within a time frame of 15 to 25 minutes. As one can imagine, it requires a lot of people and a lot of coordination to achieve this result.
(b) Work during an event
[64] Ms. Johnson testified that the servers were supervised by the supervisor and/or team leaders. The role of the supervisor was to direct what duties were to be performed by each member of the staff, and the team leader was responsible for the direct supervision of the service at the table. The team leader would remind the servers if they did not follow the protocol that they had been told to follow for a particular reception.
[65] Furthermore, if there were any problems during a particular shift, the worker had to report to the team leader. At one point, Ms. Johnson was yelled at by a representative of a venue and she informed her team leader that she would not be returning to work. She was informed by a representative of BDI that it would investigate this incident because it was BDI’s policy not to accept any harassment from clients or from representatives of venues.
[66] Mr. Sowden testified that the team leader would also be involved in serving guests. Therefore, he or she was not in a position to really supervise the butlers. This statement was contradicted by the testimony of Ms. Johnson, who said that they followed the orders and the directions of the team leader. I am convinced that if a particular butler did not set up the tables in the proper way, that butler’s team leader would tell the butler how to do it.
(c) Permission required to leave an event
[67] Ms. Johnson confirmed that breaks had to be approved by the team leader. She could not take a break or go home at the end of the evening without the team leader’s approval. She confirmed that in one instance, when the client had requested that the butlers stay longer than the time agreed to by BDI, the team leader told Ms. Johnson that she had to stay because the client was paying and they had to do what the client wanted.
(d) Examples of written directives given by BDI to its workers
[68] There were numerous written directives given to Ms. Johnson with respect to the various events at which she performed her services. The directives are in the form of emails from the BDI bookings department. The first, [13] dated November 20, 2015 at 5:09 p.m., states:
Please sign in with your supervisor at the catering office at the south west corner of the building. Please note that the subway doesn’t start running until