Date: 20020503
Dockets: 2001-4415-EI,
2001-4416-CPP
BETWEEN:
PATRICK GROULX,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Bowman, A.C.J.
[1] These appeals are from decisions of the Minister of National Revenue that during the periods of September 5, 2000 to December 7, 2000 and January 9, 2001 to April 12, 2001 Mr. Groulx was employed in insurable and pensionable employment within the meaning of the Employment Insurance Act (the "EIA") and the Canada Pension Plan (the "CPP").
[2] During the periods in question Mr. Groulx was engaged as a part-time teacher of computer science at Seneca College of Applied Arts & Technology ("Seneca College"). He taught six hours a week, two nights a week. He designed his own courses and set and marked the exams. The design of courses and setting of exams was done on his own time and he was not paid any additional amount.
[3] He was contractually prohibited from working more than six hours per week evidently because if he worked more than six hours per week he would have been obliged to belong to the teachers' union.
[4] Seneca College supplied the classrooms and the computers. The appellant developed the software on his own time and supplied it.
[5] The following are assumptions upon which it is said the decisions were based:
(a) the Payer is an Ontario Government Crown Corporation;
(b) the Payer is an educational institution (Public College);
(c) the area of the College involved in the Appeal is the "Faculty of Continuing Education & Training";
(d) the Payer operates on a semester system and contracts are signed for each term;
(e) the Appellant was hired as a teacher under a written agreement for each period in question (Tab 1 and 2);
(f) per the agreement, the Payer reserves the right to cancel any assignment for insufficient number of registrants and the Appellant would not be paid for the cancelled assignments;
(g) per the agreement, the Appellant had to follow many conditions such as:
- adhere to the College Policy and procedures
- follow the curriculum designs and objectives described in the Program Information Package
- contact the Department one week ahead of the start date to determine subject status
- begin and end classes as scheduled
- inform the Department of any changes
- inform of any absences from class or rearrangement of assignment
- submit a draft of the final exam for approval
- submit the final exam and grades breakdown record according to procedure
- attend the mandatory promotion meeting
- report student or classroom concerns
(h) per the agreement, the appellant was paid $37.75 per hour for the first period in question and $39.75 per hour for the second;
(i) per the agreement, the Appellant was paid on a bi-weekly basis by direct deposit;
(j) the Appellant's rate of pay was determined by the Payer;
(k) per the agreement, the Appellant cannot work more than 6 hours a week;
(l) the Appellant's hours of work were determined by the Payer;
(m) the Worker was supervised by Jake Atteslander, the course coordinator;
(n) the Appellant was covered by the Worker's compensation;
(o) the Payer maintained the right to terminate the Appellant's services;
(p) the Payer provided all tools and equipment at no cost to the Appellant;
(q) the Appellant had to perform his services personally;
(r) the work performed by the Appellant was integral to the Payer's business.
[6] The conditions set out in paragraph (g) of the assumptions are taken from the Part-Time Faculty Employment Agreement. What was not reproduced was the following provision which immediately precedes the list of conditions reproduced above.
This a one semester contract for the dates specified on the reverse side of this agreement. The College reserves the right to cancel any assignment already agreed to by the parties due to:
a) insufficient numbers of registrants (as determined by the College), or
b) lack of adequate facilities for implementation.
The faculty member will receive no payment for these cancelled assignments.
The College reserves the right to cancel this contract for reason of cause, failure to attend, or unsatisfactory job performance.
[7] Many of the assumptions are the usual boilerplate that we see in all of these EIA and CPP cases where the issue is whether a person is engaged under a contract of service or a contract for services. The traditional four-in-one test enunciated in Wiebe Door Services Ltd. v. M.N.R., [1986] 2 C.T.C. 200, is a useful starting point provided that one is careful to avoid an undue emphasis on any one aspect of the test. However one can start with the Wiebe Door test and see where it takes us bearing in mind the admonition that one must look at the relationship as a whole, and determine, as Cooke J. said in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 at 737-738, and quoted by Major J. in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, the question "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?"
[8] The quotation from Cooke J. continues:
If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.
[9] Major J. then quotes from the decision of MacGuigan J.A. in Wiebe Door at paragraph 46:
[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose.... The most than can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.
[10] Applying these criteria I have great difficulty in seeing how Mr. Groulx is an employee of Seneca College. He comes in twice a week and is paid an hourly rate. His preparation is done on his own time and is unremunerated. He is in no sense integrated into the activities of the college, as are the full-time teachers. He does not belong to the teachers' union, he does not participate in the health plan or the pension plan as are the full-time teachers. He is not provided with parking and has no access to the recreational facilities, such as the gymnasium as are the full-time teachers. He determines the course content and what he teaches. The full-time teachers have offices supplied by the college and are given paid time for preparation. Mr. Groulx has no office and prepares on his own time without pay. He is not supervised. I do not see that the college exercises any meaningful degree of control over him - he is, after all, a highly qualified professional with a BSc from Simon Fraser University and an MBA from University of Western Ontario. He is also a chartered accountant. His part time teaching is only one of a number of enterprises in which he is engaged.
[11] He is therefore neither controlled by Seneca College nor integrated into its system, so that even on a somewhat mechanical application of the four-in-one test of Wiebe Door, he does not meet two of the criteria. So far as the other two are concerned, it is true the college supplies the classrooms and the aging computers. Mr. Groulx provides the software. The chance of profit/risk of loss test is hard to apply to a part-time teacher and it would be a very fragile reed on which to base a finding of employment.
[12] I prefer however to step back from the minutiae of the tests and ask, looking at the relationship as a whole, "Can it be said that this part-time teacher who comes in twice a week, is not part of the body of full-time teachers, prepares and provides the software on his own time, designs the courses and teaches and sets exams as he sees fit, is essentially not controlled by anyone and can ask someone else to substitute for him, is in any traditional sense an employee?" The answer in my view is "No". One of the striking inconsistencies with a traditional employer-employee relationship is that contained in the portion of the contract quoted in paragraph 6 of these reasons that if there are insufficient registrants the college can cancel any assignments already agreed to and the faculty member will receive no payment for a cancelled assignment. This is inconsistent with an employer-employee relationship.
[13] The appeals are allowed and the decisions that the appellant was employed in insurable and pensionable employment are reversed.
Signed at Ottawa, Canada, this 3rd day of May 2002.
|
"D.G.H. Bowman" |
A.C.J.COURT FILE NOS.: 2001-4415(EI), 2001-4416(CPP)
STYLE OF CAUSE: Between Patrick Groulx and
The Minister of National Revenue
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 23, 2002
REASONS FOR JUDGMENT BY: The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF JUDGMENT: May 3, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Eric Sherbert, Esq.
COUNSEL OF RECORD:
For the Appellant:
Name: --
Firm: --
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4415(EI)
2001-4416(CPP)
BETWEEN:
PATRICK GROULX,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeals heard on April 23, 2002, at Toronto, Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Eric Sherbert, Esq.
JUDGMENT
It is ordered that the appeals from the decisions made under the Employment Insurance Act and the Canada Pension Plan be allowed and the decisions be reversed.
Signed at Ottawa, Canada, this 3rd day of May 2002.
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"D.G.H. Bowman" |
A.C.J.