Viel v. M.N.R.

Viel v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2007-07-17
Neutral citation
2007 TCC 299
File numbers
2006-1711(EI)
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Employment Insurance Act
Decision Content
Docket: 2006-1711(EI)
BETWEEN:
SANDRA JENNIFER VIEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CORINNE FRANCIS,
Intervenor.
____________________________________________________________________
Appeal heard on common evidence with the appeal of Sandra Jennifer Viel (2006-1712(CPP)) on March 16, 2007 at
Nanaimo, British Columbia
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Devinder K. Sidhu
Counsel for the Respondent:
Lise Walsh
Counsel for the Intervenor:
Devinder K. Sidhu
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 4th day of June 2007.
"D.W. Rowe"
Rowe D.J.
Docket: 2006-1712(CPP)
BETWEEN:
SANDRA JENNIFER VIEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CORINNE FRANCIS,
Intervenor.
____________________________________________________________________
Appeal heard on common evidence with the appeal of Sandra Jennifer Viel (2006-1711(EI)) on March 16, 2007 at
Nanaimo, British Columbia
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Devinder K. Sidhu
Counsel for the Respondent:
Lise Walsh
Counsel for the Intervenor:
Devinder K. Sidhu
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 4th day of June 2007.
"D.W. Rowe"
Rowe D.J.
Citation: 2007TCC299
Date: 20070604
Dockets: 2006-1711(EI)
2006-1712(CPP)
BETWEEN:
SANDRA JENNIFER VIEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CORINNE FRANCIS,
Intervenor.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] The appellant appealed from two decisions issued by the Minister of National Revenue (the "Minister") - on April 12, 2006 - pursuant to the Employment Insurance Act (the "Act") and the Canada Pension Plan (the "Plan"), wherein the Minister decided her employment with Corinne Francis from September 3, 2002 to July 6, 2005, was neither insurable nor pensionable because she was not engaged under a contract of service.
[2] Counsel for the respondent, counsel for the intervenor and the appellant agreed both appeals could be heard together.
[3] Sandra Jennifer Viel (Viel) testified she lives in Nanaimo, British Columbia and is a Home Support Worker. In the early part of 2002, she started working for Barb’s Home Care and Support Services, an agency that provided in-home care to clients in the Nanaimo area. Viel was paid every two weeks – by cheque – based on an hourly rate and the usual source deductions were made. During the last two weeks of August 2002, the appellant was assigned – by Barb Boekings (Barb) - the agency owner - to provide services to Corrine Francis (Francis), her husband – Dr. Francis - and their two children at their home in Nanoose Bay, located about 20 kilometres north of Nanaimo. The appellant stated Barb had requested that she work as many shifts as possible because Francis was not content with the existing arrangement whereby different workers were dispatched to her home. Viel stated Barb informed her that Francis wanted Viel to provide her services 5 days per week on an exclusive basis, an arrangement that Barb declined. Viel stated she understood that Dr. Francis was a physician practising in the area by undertaking locums to relieve other practitioners. She met with Francis and they discussed the nature of the work to be performed. Viel agreed to work for Francis at an hourly rate of $15 and to perform duties ranging from child care to cleaning the house and running family errands. Viel stated that within a few weeks, the nature of her duties changed and she was assigned additional tasks by Francis although the rate of pay remained the same. Typically, Viel worked from 9:00 a.m. to 3:00 p.m., 5 days per week, Monday to Friday, until the end of 2002. While performing errands such as shopping, Viel drove one of two vehicles owned by Francis and her husband. She used the van to transport the Francis children to activities and for other purposes during the day. The appellant was paid – by cheque – every two weeks and Francis recorded Viel’s hours of work on a calendar kept in the kitchen. Viel did not maintain her own record but recalled that during the first few months working for Francis, she averaged about 30 hours per week. Viel stated that in January, 2003, more duties were added and her hours of work were extended to 4:00 p.m. throughout the week and she worked on a weekend, if required. In April, 2004, Francis increased her hourly pay to $17. Viel stated Francis decided when, where and how she was to perform her duties which she was required to carry out personally. She did not incur any work-related expenses nor provide any tools or equipment and did not charge any amount for Goods and Services Tax (GST) to Francis in respect of her services. Viel stated that after she had received two or – possibly – four pay cheques, she brought up the subject of deductions which Francis had not calculated. Viel stated Francis was upset and informed her that “we do not do it that way, there is too much paperwork” and that “we had done that in the past but not now.” The appellant stated she was confused by that response. An issue arose concerning the use of the Francis family van by the appellant because Viel became concerned that the insurance coverage might be deficient because Francis was named on the policy as the primary driver and the appellant considered that was not correct since she used the van during the week more than Francis. Following this difference of opinion, Viel began using her own vehicle to perform her duties throughout the day. From the outset, Francis paid the appellant $25 every month as a fuel allowance as compensation for using her own vehicle to run errands either before or after work. The appellant did not bother calculating whether that amount was sufficient to cover her cost. The appellant lived in the central part of Nanaimo where most businesses were located and she was able to make purchases for Francis on her way home from work. Francis’ 4‑year old daughter was in daycare until 12:30 p.m. and the appellant picked her up and at 2:45 p.m. retrieved the eldest daughter from school and cared for the children until the end of the work day. Viel stated she received written instructions in the form of a list each day from Francis and they met each morning to discuss the tasks, some of which were marked with an asterisk (*) to denote priority. The appellant stated she mentioned the lack of deductions from her cheque in the spring of 2003 but Francis refused to discuss the matter. In the summer of 2003, the appellant’s daughter – born in August 1997 - rode to work with her and attended the same school as Francis’ eldest daughter. In April 2004, Francis announced that Viel’s pay would increase to $17 per hour and that she would be working an average of 40 hours per week. The appellant disagreed with the assumption of the Minister at subparagraph 6 l) of the Reply to the Notice of Appeal (Reply) that she could “work for others but Francis had priority over her time.” Viel stated she had been informed by Francis – in December 2002 - that she should not work on a weekend at her part-time job as a sales representative for a greeting card company because the Francis family might require her services and wanted her to be available. Viel stated Francis informed her she would have to make a choice as to which job was more important. The working relationship between Viel and Francis was terminated on July 6, 2005. Viel stated she had discovered – by chance – that she was being replaced and received a cheque on termination that included about 7 days extra pay which she presumed to be in lieu of notice. The final cheque did not include any holiday pay which Viel had received when she worked for Barb’s agency. The appellant applied for Unemployment Insurance (UI) benefits and a ruling was issued that she had been engaged in both insurable and pensionable employment with Francis and she received benefits on that basis. However, the benefits were discontinued in January, 2006 because the ruling was appealed and later reversed by the decision of the Minister issued on April 12, 2006. The appellant is currently employed by a home care agency and stated that during the relevant period she did not have a business bank account nor licence and did not have any business cards nor any other trappings of a commercial enterprise. She acknowledged that she was paid by Francis only for the hours actually worked.
[4] The appellant was cross-examined by Ms. Devinder Sidhu, counsel for the intervener, Francis. Concerning her status when providing services to Francis, the appellant stated she had discussed that issue with her accountant in 2003 prior to filing her income tax return for the 2002 taxation year but did not follow up on his advice to seek a ruling from Canada Revenue Agency (CRA). As a result, she filed her return and reported earnings as business income. Viel stated it was a “hard choice to make” but she did not have a T4 slip from Francis. She identified her income tax returns for the taxation years 2002 to 2005, inclusive that were entered as the following exhibits: Exhibit I-1 – 2002 return; Exhibit I-2 – 2003 return; Exhibit I-3 – 2004 return; Exhibit I-4 – 2005 return. In the return for the 2002 taxation year, Viel reported employment income and also business income – earned from providing services to Francis - in the sum of $7,429 and claimed the amount of $100, attributable to motor vehicle expenses. In her 2003 taxation year return, the appellant reported business income in the sum of $25,702.92 and claimed total expenses in the sum of $1,523.92 as set forth in the Statement of Business Activities (Statement) included in said return. That total included the sum of $694.97 for motor vehicle expenses and the amount of $686.40 under the category “Telephone and Utilities.” Viel reported that she had driven her motor vehicle 6,250 kilometres to earn income. No employment income was reported therein. In filing her return for the 2004 taxation year, the appellant reported business income in the sum of $24,962.50 and pursuant to the Statement claimed expenses of $1,737.39, including the amounts of $828.45 and $686.40 for motor vehicle expenses and telephone and utilities, respectively. According to the relevant sheet – Allowable Automobile Expenses – included in the return, she – again – drove her vehicle 6,250 kilometres to earn that business income. In her return for the 2005 taxation year, the appellant reported business income in the sum of $18,076.50 and claimed a total of $774.01 in expenses attributable to operating her motor vehicle ‑ $320.38 - and the sum of $288.40 for Telephone and Utilities. The reported distance driven during that taxation year was 3,849 kilometres. In each of those four taxation years, the appellant claimed accounting fees – less than $85 annually - as a business expense. In the Statements included in her tax returns for the 2003, 2004 and 2005 taxation years, the appellant described her main product or service as: Home Support and stated therein that she operated under her own name from an address on Doctors Road, Nanaimo, B.C. which was the appellant’s residence. Viel stated that in the fall of 2004, she began driving her own vehicle in the course of her duties and only drove the Francis family van if Francis and/or her children were passengers. She acknowledged that the $25 monthly allowance for vehicle costs was included in a cheque issued by Francis and that this sum remained constant even though the price of fuel increased. Viel stated she “loved her job” and the increased cost of fuel was not significant. The appellant was referred to a sheet – Exhibit I-5 – prepared by accountants retained by Francis - that summarized all payments made by Francis to her in each year from 2002 to 2005, inclusive. Counsel pointed out to the appellant that Francis had paid her only $4,904.76 in 2002 but the tax return showed business income in the sum of $7,429. Viel replied that the additional revenue was probably attributable to her work for the greeting card company. Counsel suggested the additional business income could be attributable to revenue generated by the appellant when providing her home support services to other clients. The appellant stated she had not earned other income in that manner and when providing home care services to other individuals, had done so as a favour for friends and did not receive any payment in return. Counsel referred the appellant to her Notice of Appeal dated June 1, 2006. The appellant acknowledged she had no education in the field of home care beyond first-aid training. Barb – a friend – who operated an agency, had hired Viel as a home support worker and that employment permitted her to gain experience. Earlier, Viel had worked in retail, always as an employee. Viel conceded that Francis had not regarded her as an employee when she provided home support services to the Francis family during the relevant period. Viel stated she had been advised by her accountant that she was probably an employee of Francis rather than an independent contractor. She stated she made the decision to file each tax return on the basis the amount earned from Francis was business income because she wanted to keep the job which she enjoyed and – in 2003 - her daughter had started attending the same school as the eldest daughter of Francis. Viel stated she did not know how to remit income tax on a monthly or quarterly basis and that upon signing each of the tax returns for the years 2002 to 2005, inclusive, still considered she had earned the reported income in her capacity as an employee of Francis. The appellant agreed she preferred to work for Francis directly rather than through Barb’s agency because she did not want to work for various people in their homes. Viel stated sometimes Francis became upset with her in relation to her performance in carrying out certain tasks. The appellant stated the initial $15 per hour rate was not negotiated but was set by Francis and she accepted it and started work on that basis. Viel identified a Home Care Providers Questionnaire (Questionnaire) – Exhibit I-6 – that she completed and returned to CRA. In responding to Q. 4 therein, the appellant – on the back of the page – wrote a lengthy explanation of her duties performed with respect to Francis and her two children, one of whom - Leah – required special care. Francis had several severe health problems to cope with on a daily basis. The appellant identified a bundle of invoices – Exhibit I-7 – dated every two weeks, beginning October 5, 2002. The invoice bearing that date included 36 hours attributable to respite for Leah, 15 hours personal care for Francis and 1 and ½ hours for private household services for a total of $722.50, including the sum of $25 for transportation costs. The appellant acknowledged that many invoices indicated more hours were devoted to caring for Leah during the relevant period but stated it had been her understanding that Francis wanted them to be prepared in that way for the purpose of obtaining some sort of tax benefit. Viel stated she agreed with Francis that for invoicing purposes she would allocate 50% of her hours for care of Leah and 50% for duties relating to the rest of the family including household tasks. The appellant identified her handwriting on each invoice but stated the wording and extent of detail provided therein was prepared with input from Francis. Viel stated the allocation of hours worked was immaterial to her and agreed to the method directed by Francis. Counsel referred the appellant to paragraph 8 of her Notice of Appeal wherein she set out details of a daily list of tasks and chores as an example of the kind of direction and control exercised by Francis. Viel conceded she could not produce any actual lists prepared by Francis and had created that detail as an example of the content of such lists. She stated she had not helped Francis bathe but remained in the bathroom with her. In paragraph 9 of her Notice of Appeal, the appellant alleged that when Francis was in the hospital in Vancouver she “remained in complete control of my job and all my duties.” Viel explained that reference by relating that Francis had telephoned her several times during the day to give instructions with regard to various matters concerning the care of her children and the operation of the household.
[5] Counsel for the respondent did not cross-examine the appellant.
[6] Corinne Francis testified she is a homemaker residing in Nanoose Bay, British Columbia. She has two artificial hips and suffers from other serious medical conditions including a chronic abdominal problem caused by Crohn’s disease that at one point required her to take nourishment through a feeding tube. Francis stated her daughter – Leah – was born in April 1998, and is affected by a pervasive development disorder which is manifested by a delay in attaining speech and language skills. Leah also suffers from a sleep disorder and other medical conditions related to a syndrome present at birth. Francis identified a Disability Tax Credit Certificate – Exhibit I-8 – pertaining to Leah that was signed by Dr. Lund ‑ her physician - on October 14, 2003. A letter from Dr. Lund – dated March 2, 2004 – sent to another physician concerning Leah’s state of health was filed as Exhibit I-9. Francis stated that because of health problems, Leah needed help in many aspects of her life and the appellant provided services in that regard. Francis stated that during much of the relevant period, she also needed help to get in and out of the bathtub and with activities such as washing her hair and applying certain medicated creams and lotions to alleviate symptoms related to a skin condition. The Francis family had moved to Nanoose Bay in August 2002 and were out of contact with friends and relatives. Initially, the appellant – and several other home support workers – provided services through Barb’s agency to the Francis family. Francis denied the appellant’s allegation that she had requested Barb to assign Viel to her on an exclusive basis. Francis stated Viel suggested she could provide ongoing home care directly to the Francis family and eliminate the need to obtain different workers through the agency. Francis stated Viel represented she had attended a community college and was only “a couple of courses short” of receiving either a certificate or diploma pertaining to the occupation of home care provider. Francis recalled that during the course of their discussion, Viel mentioned the names of several people to whom she had provided care and also indicated she had a young child. Francis stated that when Viel was providing care through the auspices of Barb’s agency, she often referred to herself as a professional home care provider and was familiar with the language applicable to that occupation. Francis stated Viel said she was operating her own business and wanted to retain some existing clients but offered the assurance that in the event she could not attend personally at the Francis home to provide the necessary care, she would find a qualified substitute who was also in the home care business. When the discussion centred on the site of the work, Francis stated Viel mentioned that her house was too small and – knowing Francis was allergic - that she had cats. As a result, they agreed the care would be provided at the Francis residence in Nanoose Bay and that Leah’s needs would have priority and the appellant would devote any remaining time to the personal care required by Francis. Francis had paid Barb’s agency the sum of $17 per hour for supplying a worker. Francis stated that in the course of her discussion with the appellant, Viel offered to work for $13 per hour – if paid in cash – or for $15 per hour if payment was made by cheque. Another subject of discussion was the matter of notice of termination and pay in lieu thereof and they agreed that a two-week period was appropriate in either event. Francis recalled that during these initial discussions, Viel had indicated she wanted to be her own boss with flexibility in choosing time off from work even though she preferred to provide care to only one family. Francis stated Viel also had mentioned she wanted to be able to deduct business expenses as an independent contractor and warned Francis that if a better work situation arose she would accept it because she was not receiving any child support and needed to use the full extent of her monthly gross income for living expenses rather than have deductions taken at source. Francis stated Viel did not work some days and on occasion worked less hours than normal because she did not have day care for her own daughter. Viel drove Francis to medical appointments and took one of the Francis children to gymnastics class now and then if it was convenient. Francis stated Viel offered to work one Christmas Eve and volunteered to do shopping from a list posted on the fridge in the Francis kitchen that also detailed other tasks that needed to be accomplished including pet care. Francis stated Viel offered the explanation that she did not get along with her sister and it would be better if she reduced the amount of time spent with her own family during the holidays. Viel was fond of the Francis family dog and bathed it regularly to eliminate dirt and bacteria. The hours worked by Viel were recorded on a calendar and the appellant presented an invoice to Francis every two weeks in accordance with the request – by Francis – that Viel quantify the hours devoted to Leah’s care. Francis stated Viel decided when to take holidays or other time off and did not seek any prior permission. At one point, there was a discussion between them about Francis needing additional hours of home support services each week. Francis disagreed with the assumption of the Minister – at subparagraph 6 b) of the Reply – that the appellant was required to perform the services personally. Flowing from the discussion about the requirement for additional hours of care, Viel asked for – and received – an increase in the hourly rate to $17. Francis stated Viel prepared a personal care schedule which included tasks related to the feeding tube that occupied several hours per day. Francis denied that it was necessary to provide Viel with direction in this regard because she was competent and able to perform those tasks. Francis recalled complaining to Viel that although the dog had been bathed twice during a particular period she had not, but did not pursue the matter because she did not consider she was entitled to order Viel to assist her to bathe. Viel got along with the Francis children and performed her duties well even though she had complained at one point that a certain medication sometimes affected her ability to function. Francis was very ill during much of the relevant period due to numerous and severe medical conditions and stated she felt intimidated by Viel and believed she was in no position to negotiate – with Viel - various aspects of their working relationship. Francis was in the hospital in Vancouver in the summer of 2003 for the purpose of having a feeding tube installed. Her admittance was planned on the basis of a two-week stay during which she had to learn appropriate procedures relating to that device which required visits to numerous professionals at different locations within the hospital in accordance with a demanding daily schedule. Francis stated that contrary to the testimony of Francis and the allegations contained in the Notice of Appeal concerning the constant direction and control emanating from her – via telephone – from Vancouver, that during her hospital stay she was able to call home only three times. She did not have a telephone in her room and had to use a pay phone down the hallway. Francis stated she wanted to get back home as quickly as possible and devoted her time to learning the procedures pertaining to the feeding tube so she could be discharged from hospital at the end of the two-week period. When she telephoned home, she was assured by Viel – and accepted - that matters were being taken care of in the normal course so there was no need to give any directions to Viel. Francis stated that from time to time during the relevant period, Viel – without mentioning names – discussed situations where she had either provided her services directly to individuals or had relieved another care worker by assuming her duties. Francis stated that was not a matter of concern as she had understood from the outset that Viel was in the business of providing home care and performing related tasks to clients for which she was remunerated at a set rate per hour for hours actually worked. Francis was unable to recall any discussion with Viel regarding any advice Viel may have received from an accountant to the effect that Viel should have been treated as an employee of Francis. Francis stated any discussion concerning employment status occurred during their initial discussions prior to Viel leaving Barb’s agency. Francis stated she was confused by Viel’s concern about the insurance policy on the van since it was adequate and standard in the sense it covered Francis as the primary operator together with other household members and any mature driver with a certain number of years driving experience. Francis currently has a home care worker - as an employee - who began working without any prior training or experience and requires supervision. The usual deductions and a Worker’s Compensation Board premium are deducted from her pay cheque. In the past, the Francis family hired a nanny - as an employee - but until recently no home care worker ever provided services to the Francis family on any basis other than as an independent contractor.
[7] Corinne Francis was cross-examined by counsel for the respondent. Francis stated she welcomed any extra tasks Viel volunteered to perform. Regarding the negotiations with Viel at the outset, Francis regarded them as similar in nature to those that had taken place between her and Barb prior to obtaining the services of workers from the agency. Francis stated she had no objection to Viel providing services as an employee but this issue had not been raised in the course of their discussions. Francis stated she consulted her accountant regarding the number of hours Viel was working in reference to provincial hours of work regulations and received advice that the amount of time worked was irrelevant if Viel was providing services as an independent contractor. In late 2002, Francis obtained a Factsheet – Exhibit I-10 – dated July,2002 - from the Employment Standards Branch relevant to the issue of whether a worker was an employee or an independent contractor. Francis stated she perused the information and concluded she did not exercise sufficient control and direction over Viel to confer upon her the status of employee and that the other factors mentioned therein further satisfied her that she and Viel were proceeding on the correct basis. As an example pertaining to control and direction, Francis stated her bath day was determined by Viel according to Viel’s schedule. Francis and her husband went away every two or three months for a brief respite and during their absence Viel provided care for their children and pet and managed the household. Invoices submitted by Viel – second page of bundle in Exhibit I-7 – in her own handwriting - contained entries for respite for the Francis children billed at the rate of $8.33 per hour for 48 hours during the period from October 31 to November 3, 2002 and at the rate of $15 per hour for 27 hours of respite at some point between October 20 and November 3, 2002. Francis stated she understood Viel’s rate for overnight respite was $144 in addition to an hourly charge for caring for the children and a separate $30 per day fee for looking after the dog. According to the invoice dated November 29, 2002 – 4th page in said exhibit – Viel charged $8.33 per hour for 24 hours of respite over the course of two nights but on the invoice dated December 28 – on the same page – had billed Francis for 24 hours respite for Leah at the rate of $15 per hour in addition to an entry charging 5 hours of personal care for Francis at the same hourly rate. One invoice – dated October 5, 2002 – first page of bundle – for the period between September 22 and October 5, 2002 - contained an entry for 1 and ½ hours for “ private household services.” Francis stated she did not question Viel’s method of invoicing for her services according to various categories and paid them as presented. By July 2005, Francis decided to attempt caring for her family on her own without full-time home support and terminated the relationship with Viel according to their original agreement that a two-week notice – or pay in lieu thereof – was appropriate. Francis stated the worker who provided care after Viel ‑ from September to December, 2005 - did not have to assist with as many medical matters particularly since the feeding tube had been removed. The new worker was an independent contractor and for a short period thereafter Francis also retained an agency that provided a wide variety of services including those delivered by a nurse aide, together with financial planning and related matters. After 3 months, Francis terminated that service as it was expensive and required her to attend several meetings with agency administrators. Afterwards, Francis stated she felt her health had improved to the point where she believed she was capable of caring for her family on her own provided she could hire a babysitter from time to time. Later, Francis hired the worker who is currently providing home care services as an employee.
[8] Corinne Francis was cross-examined by the appellant, Viel. Francis confirmed that because of an allergy to cats no personal care had been performed in Viel’s residence. Regarding the increase in Viel’s hourly rate from $15 to $17, Francis stated she accepted to pay that additional amount which she considered reasonable and an appropriate response to Viel’s comment that more hours of work were required because of the time-consuming tasks associated with the feeding tube. Francis reiterated she had not written any lists as alleged by Viel – in testimony and in the Notice of Appeal – but acknowledged she had written some instructions for Viel to follow at some point in 2005 near the end of the working relationship. As for placing an asterisk (*) beside some items on said list, Francis stated that was done in response to Viel’s complaint about blurred vision and her request that a “star” be placed beside tasks of greater importance. Concerning the need to quantify the hours of care devoted to Leah, Francis explained there was a trust fund established for Leah’s care but an accurate record was required because there was a limit on the amount available for that purpose. Regarding Viel’s offer to work on Christmas Eve in preparation for the holiday on the 25th, Francis stated that did not make sense to her since her family follows the European tradition of celebrating Christmas on the Eve rather than on Christmas day in accordance with North American tradition. Francis agreed that another worker – Amanda – was hired on August 4, 2005 but on the basis she was an independent contractor.
[9] The appellant did not adduce any rebuttal evidence.
[10] The appellant concurred with my suggestion that I hear submissions first from counsel for the intervenor and then from counsel for the respondent on the basis this method would better enable her to focus her own arguments with respect to the facts of the within appeals and the relevant jurisprudence applicable thereto, in support of her plea that both appeals be allowed.
[11] Counsel for the intervener submitted the evidence did not justify certain assumptions by the Minister as set forth in subparagraphs 6 b) to f), inclusive and 6 l), as follows:
b) the Appellant was required to perform the duties personally;
c) the Appellant could not hire an assistant or a replacement had she been unable to perform the Duties;
d) Francis decided where, when and how the Appellant was to perform the Duties;
e) Francis had the final say in the Appellant’s performance of the Duties and could require the Appellant to re-do the work;
f) Francis established the Appellant’s rate of pay at $15.00 per hour at the beginning of the Period and later raised the per hour rate to $17.00;
l) the Appellant could work for others but Francis had priority over the Appellant’s time;
[12] Counsel submitted Viel had undergone a “Damascus experience” on the road to the UI office and suggested the appellant was not an unsophisticated person but someone who - with professional accounting advice - had filed 4 consecutive income tax returns on the basis she had earned income from a business operated on her own account. Counsel submitted there had been a meeting of the minds between the appellant and Francis at the commencement of the working relationship. Regarding the matter of control, counsel pointed to various aspects of the evidence that clearly demonstrated Viel had performed her duties in accordance with her own schedule and that there were no specific lists of detailed instructions posted by Francis on a regular basis as alleged by Viel. Counsel referred to evidence pointing to the provision - by Viel – of home support and care for other clients and submitted that earnings from this source were probably included in the category of other business income as reported for the 2002 taxation year. Counsel conceded the facts supported a conclusion that the only tools and equipment required by the appellant under the circumstances were her own skills and her own vehicle.
[13] Counsel for the respondent acknowledged that many of the Minister’s assumptions referred to above seemed to imply the existence of a contract of service. Counsel referred to the need to consider all the facts, particularly the behaviour of the appellant throughout the relevant period and suggested that Viel’s retroactive assessment of what her status must have been at the outset is not credible. Overall, counsel submitted the appellant had not discharged the burden of proof and – therefore - both decisions of the Minister should be confirmed and both appeals dismissed.
[14] The appellant submitted the evidence supported her contention that Francis had exercised a great deal of control over the work performed and that there had been a list of specific duties posted each day and priorities had been assigned to certain tasks. Viel agreed she had left work early some days and billed only for hours actually worked. However, she asserted that she provided services to Francis solely in the context of an employee and had not been operating a home care business even though her income tax returns had been filed on that basis for reasons explained in the course of her testimony. The appellant submitted the decisions of the Minister were incorrect and that both appeals should be allowed.
[15] In several recent cases including Wolf v. Canada, 2002 DTC 6853, The Royal Winnipeg Ballet v. The Minister of National Revenue 2006 DTC 6323. (RWB), Vida Wellness Corporation DBA Vida Wellness Spa v. The Minister of National Revenue - M.N.R.), [2006] T.C.J. No. 570 and City Water International Inc. v. Her Majesty the Queen [2006] F.C.J. No. 1653 there was no issue in this regard due to the clearly-expressed mutual intent of the parties that the person providing the services would be doing so as an independent contractor and not as an employee. That is not the case in the within appeals and it is necessary that I examine the evidence to determine the intent of the appellant and Francis at the commencement of the working relationship. I will set aside that task for the moment and establish the framework for the necessary analysis of various factors demanded by the relevant jurisprudence.
[16] The Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 – (Sagaz) dealt with a case of vicarious liability and in the course of examining a variety of relevant issues, the Court was also required to consider what constitutes an independent contractor. The judgment of the Court was delivered by Major, J. who reviewed the development of the jurisprudence in the context of the significance of the difference between an employee and an independent contractor as it affected the issue of vicarious liability. After referring to the reasons of MacGuigan, J.A. in Wiebe Door Services Ltd. v. M.N.R., [1986] 2 C.T.C. 200 and the reference therein to the organization test of Lord Denning - and to the synthesis of Cooke, J. in Market Investigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 - Major, J. at paragraphs 47 of his judgment stated:
Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.
[17] It is important to point out that credibility of the parties will play a significant role in the course of establishing the facts in this proceeding upon which a conclusion is based. With respect to some matters, the appellant and Francis are diametrically opposed. Sometimes, there was substantial agreement on various matters and other times there were differences in their opinion of what had transpired which is not unexpected in view of the passage of time and the nature of the services provided which tended to be repetitive.
[18] I will examine the facts in the within appeals in relation to the indicia set forth in the judgment of Major J. in Sagaz.
Level of control:
[19] The appellant in her Notice of Appeal and as referred to during her testimony attempted to paint a picture of near total dominance over her - by Francis - during the course of their working relationship. Viel testified she was under constant pressure to meet expectations and was required to conform with a precise list of duties posted daily in the kitchen of the Francis home. Although she did not have any actual lists to produce in evidence, Viel relied on the example she had created for the purposes of her Notice of Appeal and stated that was the sort of extensivel