Date: 20000717
Docket: 1999-5012-EI
BETWEEN:
TE'MEXW TREATY ASSOCIATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Rowe, D.J.T.C.C.
[1] On November 26, 1999 the Minister of National Revenue (the "Minister") decided Ardyth Cooper (the worker) - during the period from April 29, 1997 to February 23, 1999 - had been employed by Te'mexw Treaty Association (TTA) pursuant to a contract of service and was, therefore, in insurable employment with TTA pursuant to paragraph 5(1)(a) of the Employment Insurance Act. Te'mexw (rhymes with hummock) Treaty Association appealed from the decision and argues that the relationship with Ardyth Cooper was not that of master and servant and she was functioning as an independent contractor throughout her working relationship with TTA.
[2] Robert Sam testified he lives in Victoria, British Columbia and is Chief of Songhees First Nation (Songhees). Currently, he is also concerned with day-to-day activities of the Songhees Band but prior to his election he had worked as a negotiator for TTA. Songhees was one of the larger members of TTA which is composed of five First Nations and each designated a person to act as negotiator.Sam stated that, from his perspective, his work as a negotiator is not a full-time job and he still fulfils his duties as Chief and also operates his own business. TTA was established in 1994 and he became involved in 1996. He does not spend much time at the TTA office as there is no designated work space for him so he performs most of his work at home where he uses his own office equipment and furnishings. Upon assuming duties as a negotiator with TTA, Sam stated his understanding was that he would be working as an independent contractor. TTA provided him with no training and he was working without supervision. He had known Ardyth Cooper for many years and during the time she represented T'Sou-ke (Sooke) First Nation at the treaty table he understood she also sat on other boards and commissions. Cooper's contract with TTA as a negotiator had not been renewed following a decision of the Board of Directors in which the view had been expressed that Cooper had been undermining Wilson Bob in his role as Chairman of TTA.
[3] In cross-examination, Robert Sam agreed he had signed a contract in the same form as the one dated May, 1996 pertaining to Ardyth Cooper (Exhibit R-1). The contract set forth a description of services to be performed. Sam stated he took direction from Wilson Bob, Chief of Negotiators for TTA, supervised TTA office staff, on occasion, and submitted monthly reports together with an invoice for services rendered. Initially, the remuneration was in the sum of $835.00 - paid twice a month - for a total of $1,670.00 together with an additional amount of $300.00 per day for work relating to special portfolios. However, by the time Sam became involved with TTA, the pay had been increased to approximately $4,000.00 per month, although in Sam's opinion the workload had not increased. TTA also reimbursed individual negotiators for travel costs. Sam's original contract expired in 1997 and he thought he had signed a renewal. He was aware his contract had provided for termination by either party upon 21 days notice.
[4] Linda Vanden Berg testified she is an anthropologist residing in Victoria, British Columbia. She acted as the Co-ordinator and Administrator for TTA. While doing graduate work at the University of Victoria, she had been contacted by Wilson Bob who asked her to do some work for purposes of the treaty negotiation process that had begun in 1990. In 1994, five First Nations - Scia'New (Beecher Bay) Snaw Naw As (Nanoose), Malahat, Lekwungen (Songhees), and T'Sou-ke (Sooke) formed TTA. Because she had done work for each of the First Nations involved in the treaty process, she was asked to assist with the structure of TTA, a body registered pursuant to the Society Act of British Columbia. Each of the members appointed a negotiator and TTA had employees in the office. Vanden Berg stated she was contracted by TTA to carry out the task as Co-ordinator in the same manner as lawyers might provide services pursuant to a retainer agreement. TTA receives funding on the basis that of the monies received - year to year - 20% is made up of grants from the federal and provincial governments and the balance of 80% is subject to a loan agreement structured in such a way that if and when any treaty settlement is concluded, any amounts advanced to date for purposes of the treaty negotiating process will then be deducted. Because there is no certainty that funding by the two levels of government will be ongoing, and in light of the possibility the talks could collapse, TTA did not want to have employees which could have certain rights arising from their dismissal which would occur as a consequence of a cessation in funding. In February, 1996, there was a formal selection of treaty negotiators by each of the five members of TTA and the negotiators were supposed to possess skills required for that task. T'Sou-ke First Nation chose Ardyth Cooper as their candidate and the Board of Directors of TTA had the right to accept that nomination or to decline to do so on the basis it was the body issuing the contract to the negotiators. The contract was issued to Cooper and she became part of TTA's negotiating team involved in treaty negotiations with the federal and provincial governments. Cooper did not receive a per diem for travel but travel expenses had to be submitted to Vanden Berg for approval and a car allowance - at the standard federal government rate of 37 cents per kilometre - was paid to all negotiators. Work done pursuant to a special portfolio was compensated at the rate of $300.00 per day. Upon the expiration of Cooper's contract on March 31, 1997, she continued to work on a month-to-month basis under the same terms and conditions except that her remuneration was increased to $4,166.00 per month, paid on a semi-monthly basis. The workload had not increased from the previous period when the remuneration had been $1,670.00 per month but additional funding had been obtained pursuant to the loan agreement which permitted extra money to be utilized for all purposes of TTA, including payments to negotiators. The increase brought the remuneration to TTA negotiators nearer to that paid to the federal and provincial government representatives at the treaty table. Vanden Berg stated she is not a negotiator but was part of many negotiating teams in her capacity as Co-ordinator. She was aware that Cooper was on a fish committee and also on the Board of Directors of Heritage Trust while she was working as a negotiator with TTA and Cooper was free to enter into other contracts provided she was not placed into a conflict of interest. In addition, Cooper carried out a number of band-related activities at Sooke as her father was Chief of the T'Sou-ke First Nation. The negotiators worked together to establish dates and times for future meetings and Cooper was part of that process. Cooper was required to attend meetings involving the treaty negotiations but could have hired others to perform related duties. However, she would have been responsible for their compensation. The members of the TTA negotiating team chose areas of responsibility within their area of interest and Cooper chose education as a portfolio but it was not assigned to her in a formal manner. Cooper - as part of her duties as a negotiator - was required to solicit the needs and desires from members of the T'Sou-ke First Nation with respect to treaty negotiations and to provide treaty information to the Band members as well as report her findings to TTA on a regular basis. There was no special office space designated for use by treaty negotiators but the treaty clerks were located in offices at each member's location primarily for the purpose of consultation with the community. There was no office equipment supplied by TTA to negotiators and Cooper used her own cellular phone, fax and laptop computer. Negotiating meetings were held on a rotating basis within the community of the members of TTA or at government buildings. Contrary to the assumption of the Minister at paragraph 5(n) of the Reply to Notice of Appeal, Cooper was not expected to perform any duties in the TTA office when she was not attending scheduled meetings. She was - as assumed at paragraph 5(p) - directed in her activities by the Chief of Negotiators and was required to comply with policies and procedures established by the Board but the only restriction pertaining to engaging in outside activities (paragraph 5(q)) was that she not become involved in a conflict of interest, actual or perceived. TTA provided business cards to Cooper - at no cost to her - containing both her name and TTA. By letter dated February 16, 1997, TTA advised Cooper she was dismissed from the position of negotiator and that effective February 17, 1999, she was not to attend any further meetings or to purport to represent TTA in any way. Vanden Berg stated Cooper's dismissal was due - in part - to complaints from some people within the community about not being properly informed as to details of the negotiating process and the TTA Board - comprised of elders of each TTA member - decided not to renew her contract. At one point during the working relationship between Cooper and TTA, Vanden Berg stated Cooper was not pleased with certain proposed additions to a renewal of the existing contract and was explicit about not wanting to provide her services to TTA as an employee and - instead - wished to have the status of independent contractor. A copy of Minutes of the meeting of the Board of Directors of TTA dated March 26, 1997 - was filed as Exhibit A-1 - and - at page 6 - Vanden Berg referred to the following entry:
"Ardyth Cooper expressed concern with the reference to overtime. She was under the impression that the idea of a flat rate was that it was a contract versus a staff relationship. She agreed with Pat Chipps concerning the financial implications. She stated she did not want to get into a situation of recording overtime. She commented that, if the system is working, it should be left as is."
[5] Vanden Berg stated there had never been any intention that treaty negotiators would be paid any overtime, holiday pay or other benefits usually associated with the status of employee. At each First Nation TTA member - except T'Sou-ke - there was a portable building used for TTA purposes and the treaty clerks would work at those offices. In the Band office at Sooke, there was space assigned for the specific use of TTA. No T4 slips were ever issued by TTA to any of the negotiators.
[6] In cross-examination, Vanden Berg was referred to page 6 of the Minutes of the March 26, 1997 meeting - Exhibit A-1 - at which she had commented that some negotiators were putting in more time than others and that new contracts - put forward as a topic for discussion - should contain an hourly rate. Then, at the bottom of page 6, Vanden Berg - according to the minutes - stated:
"... contractors are only paid for work. The fact that the negotiators are getting a fixed rate would indicate to Revenue Canada that the negotiators are actually employees. ... The B.C. government encountered this with their contractors."
[7] Vanden Berg agreed the payment of the flat rate continued even after the remuneration had been increased to $4,166.00 per month. There had been no special projects which attracted payment of the additional sum of $300.00 per day referred to in the contract. However, Vanden Berg stated it was clear to her that no negotiator wanted to have the status of employee and each could take on extra duties for other persons or entities. Vanden Berg operates through a corporation, Vanden Berg & Associates Inc. (Associates Inc.) and it does work under contract for First Nations throughout British Columbia and may be performing services in relation to 20 projects during a particular time period. Her corporation has five employees and utilizes the services of various specialists from time to time on a sub-contract basis. The diagram of structure within TTA - Exhibit R-2- is accurate except that Wilson Bob was Chief of Negotiators and not the Chief Negotiator. The technical support outlined on the sheet is provided by Associates Inc. The government of each First Nation belonging to TTA was comprised of a Chief and two or three Councillors - depending on the population of the community. The contract - Exhibit R-1 - had been prepared by a solicitor and it contained the expiry date of March 31, 1997. Some negotiators were also Chief of their Band and others carried out additional activities arising from business. Wilson Bob was Chairman of the Board of Directors of TTA and was also a negotiator who fulfilled the role as Chief of Negotiators, meaning he was the main spokesperson at the negotiating table. Vanden Berg - in her role as the operating mind of Associates Inc. - was an adviser and she did not instruct TTA staff who were supervised by each local Chief and Council.
[8] In re-examination, Vanden Berg stated the negotiators, while working as a team receiving and giving advice one to the other, acted independently and did not want the negotiation work to become a full-time activity as they were constantly aware the treaty process was fully dependent on funding from the federal and provincial governments and that it might not be renewed.
[9] Denise Purcell stated she lives at Sooke and is a negotiator for the T'Sou-ke First Nation. She signed a Letter of Retainer in April, 1999 following the departure of Ardyth Cooper. The community decided it wanted two negotiators - one to deal with matters pertaining to land and self-government - and the other to be concerned with fishing resources and rights. The remuneration of $4,166.00 per month - previously paid to Cooper - was divided equally between Purcell and the other negotiator. She accepted the position on the basis she would be functioning as an independent contractor and had the ability to profit by performing her duties in less time. In her opinion, the status of independent contractor was more appropriate because the negotiating table was constantly in jeopardy and could collapse totally due to a cut-off in funding. Purcell stated she has known Cooper for some time and at one point Cooper had asked her to do some policy development work for TTA. Purcell stated she owned her own computer - with e-mail - printer, office equipment and performs 99% of her work at home. Her background is in human resources and she also had provided advice on the subject of personnel to TTA but that was separate from her duties as a negotiator. Previously, she had worked 19 years for the federal government. The treaty clerks produced a bi-weekly newsletter which was distributed within the community.
[10] In cross-examination, Purcell stated there is only a certain amount of money allotted to the negotiation process and T'Sou-ke First Nation wanted two negotiators. She does not carry on any other negotiating business and when Cooper approached her to do some policy work, TTA had not agreed Cooper could hire her.
[11] Rose Marie Dumont testified she lives at Sooke and works as a Treaty Clerk for the T'Sou-ke First Nation. She is also a member of the Finance Committee and each year receives a T4 slip setting out the income earned by her. She also receives holiday pay, payment for statutory holidays and is compensated for overtime. She is also supplied with telephones, computers, fax machine and other office equipment. Dumont stated she met Ardyth Cooper in 1992 when Cooper was the Band Manager for T'Sou-ke First Nation. Dumont stated Cooper, while working for TTA as a negotiator, had mentioned - on several occasions - that she was an independent contractor and was not required to pay employment insurance premiums and had the ability to come and go as she pleased. At one point, Cooper wanted T'Sou-ke First Nation to opt out of the TTA process due to a shortfall in funding. This proposal did not meet with the approval of the members of the Band and a letter - Exhibit A-3 - was directed to Wilson Bob on February 7, 1999 requesting that Cooper be removed as their negotiator. Earlier, by letter dated January 20, 1999 - Exhibit A-4 - Wilson Bob had advised the members of TTA the contract of Cooper would not be renewed. The Board of Directors of TTA declined to renew her contract and - as requested by the community - two negotiators took over her previous duties. In Dumont's opinion, Cooper was able to absent herself as she chose, including taking a vacation to Hawaii.
[12] In cross-examination, a letter dated July 9, 1999 sent by Rose Dumont and Michelle Sprinkling to George Jones, counsel for the appellant, was referred to and filed as Exhibit R-3. Dumont stated the letter had been prompted by a telephone call from a female person to the Band office to request a T4 slip for Cooper. In response, Dumont had advised the caller that Cooper had never been an employee of T'Sou-ke First Nation and that she had been working as a negotiator under contract for TTA and, as a result, could not understand why Cooper would be at an Employment Insurance office attempting to apply for benefits. The Band Office had never issued any T4 to Cooper and the document - Exhibit A-2 - was never produced by anyone at T'Sou-ke First Nation or on behalf of TTA. Cooper had her own fax machine and laptop computer and could use supplies at the treaty office, although none were specifically provided to her. Prior to closing the appellant's case, counsel filed - as Exhibit A-5 - a Certificate of Incorporation dated September 8, 1994 pertaining to TTA having been incorporated under the Society Act of British Columbia together with the constitution of TTA as a non-profit society.
[13] Ardyth Cooper testified she is a resident of Sooke, British Columbia and is a member of the T'Sou-ke First Nation. She began working for TTA in April, 1996 and the following month signed the contract - Exhibit R-1 - which set out a description of her duties. She signed the contract on the basis of being a consultant and at the time her main priority was to avoid paying income tax on her remuneration because it was being earned on a reserve and was, therefore, exempt from taxation. Cooper stated she had been told TTA could not afford to pay premiums for Employment Insurance or contributions to Canada Pension Plan. Initially, she invoiced TTA the sum of $885.00 twice per month together with any additional amount arising from work on special projects which was billed out at $300.00 per day. Later, the pay was increased to the sum of $2083.34 twice per month and she understood she would now be working full time. A photocopy of some of her pay cheques - Exhibit R-4 - indicated they were issued on the T'Sou-ke Nation Treaty Office account. She had been reimbursed by TTA for work-related expenses and there was no need for her to submit income tax returns. Cooper's view of her duties was that they included operating the Treaty Office at the T'Souke reserve and participating in negotiating sessions under the direction of the Board of Directors of TTA and Wilson Bob, Chief of Negotiators. She was required to attend meetings and could not send a substitute to perform her duties. An example of a calendar in which her commitments were set out was filed - Exhibit R-5 - pertaining to the month of January, 1999. An entry featuring square brackets indicated the activity was not related to TTA work. Other negotiators had taken holidays in August but she waited until November when she went to Hawaii and had advised staff at the Treaty Office of her intended absence. Cooper stated she felt there was an expectation on the part of members of her community that she would be a full-time negotiator for TTA as the salary was substantial - especially in the context of her community - and she felt she should devote ample time and effort to her task, including participating in a Women in Fisheries Committee, at the request of some members of the T'Sou-ke First Nation. She worked at home - on occasion - but also worked out of the TTA office at T'Sou-ke Nation and some supplies were provided to her for use in the course of her work. She attended a First Nations Summit in her capacity as a member of the TTA negotiating team. Michelle Sprinkling and Rose Dumont assisted her in the office with matters such as co-ordinating schedules and arranging meetings. They also provided advice on using the computer. Her business card - Exhibit R-7 - described her as
"Negotiator for the T'Sou-ke Nation, T'Sou-ke Treaty Office."
Cooper stated she received her fixed remuneration twice per month and had no other business at the time she became a negotiator with TTA. On occasion, she would attend certain provincial government functions at the request of the Chief of T'Sou-ke Nation in order to foster and maintain good relations. She received a letter - Exhibit R-9 - from Wilson Bob, dated June 26, 1997, requesting she confirm with the Women in Fisheries Committee that any participation by her was not on behalf of TTA nor in her capacity as a negotiator for TTA. In the letter of termination - Exhibit R-10 - dated February 16, 1999, signed by Wilson Bob as Chairman of the Board of Directors and Burt Charles, Co-chairman, Cooper referred to the third paragraph which reads:
"The Te'mexw Treaty Association hereby gives you notice that your contract for the position of a negotiator for the Te'mexw Treaty Association (as representative of the T'Sou-ke Nation) is hereby cancelled and you are dismissed from your position. Your contract, if such exists, will not be renewed."
[14] Then, in lieu of 30 days notice, TTA paid Cooper her regular remuneration for the period February 17, 1999 to March 18, 1999.
[15] In cross-examination, Cooper stated she has no knowledge of the origin of the T4 slips - Exhibit A-2 - as the only discussion she ever had in that regard was with an employee of Revenue Canada in connection with her claim for employment insurance benefits and it had been her understanding that someone at the Employment Insurance office had requested a T4 from TTA in relation to her earnings as a negotiator. Cooper explained she enjoyed her work and devoted a great deal of time and effort toward earning what was a considerable amount of money. She had never been informed by any member of the Band Council that people were unhappy with her performance. In Cooper's opinion, it was not correct to suggest she had only decided her status with TTA was that of an employee only after she had been terminated in February, 1999. As for her comments recorded in the Minutes - Exhibit A-1 - she does not recall whether or not she received a copy but does admit having made the observation, " if it ain't broke, don't fix it". The contracts expired on March 31st of each year and the particular meeting on March 26, 1997 was held shortly before the date set for renewal. Once the term - March 31, 1997 - had expired in the original contract - Exhibit R-1 - Cooper had not signed any new contracts or any renewals. All the negotiators merely continued on the same basis as before. Cooper stated she had attended the University of Victoria in 1970 studying arts and anthropology and also had worked for the Royal British Columbia Museum. She attended one year of law school at the University of British Columbia and has participated in advanced management studies at Banff. In addition, she had researched foetal alcohol syndrome for the Department of Indian Affairs and was a member of the Committee on the Status of Women. During her working life, Cooper stated she has been both an employee and an independent contractor and has also been appointed to positions requiring an Order-in Council. Currently, she is a part-time student and also provides services to the provincial government pursuant to an Order-in-Council appointment. In Cooper's view of the overall structure of TTA, the Directors were appointed by each Band Council and she did not make any distinction between services rendered for TTA or for the benefit of the 200 members of the T'Sou-ke First Nation. A lunch held for elders took place in a portable building used by TTA and - in her opinion - was a function consistent with the purposes of TTA. While TTA was not a supporter of the fishtrap proposal, the Chief of T'Sou-ke Nation - also a Director of TTA - did support the project but there was a change in the cabinet post in the Ministry of Fisheries for British Columbia and the concept was not pursued. At one point, a large deficit for TTA had been projected and she was concerned about the cost of payments to consultants, lawyers, office space rental in downtown Victoria and other expenses. As for her calendar - Exhibit R-5 - it was an example of the method used by her for recording events and the blank spaces probably meant that she was in the Treaty Office. When she attended the First Nations Summit, she did so on the basis it was necessary for her to be there in connection with her duties as a TTA negotiator even though her expenses were paid by the summit organizers from a separate budget.
[16] The matter of Cooper having been given a staff jacket arose at some point during the evidence and, in rebuttal, Rose Dumont testified the jackets had been provided to contractors working at the T'Sou-ke Nation, including a biologist working for the Department of Fisheries and it was not intended to denote status as an employee.
[17] Counsel for the appellant submitted there was a lack of evidence pointing to any intent by Cooper to have been regarded as an employee of TTA and that this was significant when considered in the context of control as borne out by the actual conduct of the parties. Less time spent on TTA work permitted additional time to be available for other revenue-producing activities and, in counsel's submission, the job of treaty negotiator was not integral to the activities of TTA as there were other people fulfilling a similar role. The increase in salary was not related to any change in the duties of a negotiator and counsel pointed out it had nothing whatever to do with the role being transformed into a full-time occupation.
[18] Counsel for the respondent submitted the evidence established there was control over the work to be performed and direction was given by Wilson Bob, Chief of Negotiators. As for the tools, there were very little required and business cards were supplied by TTA as well as office space and supplies, when needed. Further, there was no chance of profit or risk of loss as Ardyth Cooper had been reimbursed for work-related travel and other expenses. As for the matter of integration, counsel submitted the very heart and soul of TTA - a non-profit society - was the treaty negotiation process and the function carried out by the appellant was in accord with that stated purpose.
[19] In Wiebe Door Services Ltd. v. M.N.R., [1986] 2 C.T.C. 200, the Federal Court of Appeal approved subjecting the evidence to the following tests, with the admonition that the tests be regarded as a four-in-one test with emphasis on the combined force of the whole scheme of operations. The tests are:
1. The Control Test
2. Ownership of Tools
3. Chance of Profit or Risk of Loss
4. The integration test
Control:
[20] There was very little control exercised by the appellant over the worker in the within appeal. The mandate of TTA was to provide a mechanism by which treaty negotiations could be conducted on behalf of five separate First Nations. Personal attendance was required at the negotiating table and the negotiatiors were expected to submit reports on a regular basis and to maintain contact with members of their community with respect to details of ongoing talks. The meetings were scheduled by a process of consensus and dates for future talks had to meet the requirements of all participants at the treaty table. The work of Ardyth Cooper was not supervised other than she was subject to direction from Wilson Bob, Chief of Negotiatiors. From the standpoint of control - looked at in isolation - there would be very little to distinguish the worker from other persons involved in the process who were independent consultants carrying on a separate business.
Tools:
[21] There were very few tools and equipment required to carry out the task of treaty negotiator. While the evidence disclosed the worker had some of her own office equipment, she also utilized the services of the office staff at the TTA office at T'Sou-ke Nation and was able to use supplies, as required. In today's workplace, it is not unusual for employees to provide their own laptop computers, pagers, cellular telephones and to be hooked to the Internet, all at their own cost without specifically being required to do so by an employer. The reason is that the worker wants to have access to modern communication devices for a variety of purposes, including work. Such communication equipment and computing devices such as laptop models or hand-held notebooks with enormous storage capacity have become the modern equivalent of the hand tools previously owned by carpenters, masons, mechanics and other tradespeople. There was office space provided to Ardyth Cooper and the evidence disclosed she rarely worked at home and - instead - carried out the majority of her work by using the TTA Treaty Office as a base of operations, relying on the staff to provide her with assistance in scheduling and performing certain work by utilizing the computer in the office.
Chance of Profit or Risk of Loss:
[22] Initially, the remuneration for a treaty negotiator was in the sum of $835.00 - paid twice monthly - together with the opportunity to earn additional money at the rate of $300.00 per day while working on a special project. Later, the payment was increased to $4,166.00 per month despite the fact the workload remained essentially the same. The additional daily rate was no longer applicable and all negotiators at TTA received the same amount of salary, despite the fact some worked more hours than others. Travel - including a mileage allowance - and work-related expenses were reimbursed by TTA and office space and supplies were provided if the worker chose to utilize the office instead of performing work at home. There was no chance to increase profit from the activity remunerated by TTA and putting in less time - while earning the same amount - in order to free up time to take on other revenue-producing activities is not the manner in which the test is used. One has to look at the work which is performed within the context of the relationship between payor and worker and determine whether in the course of carrying out those duties there is an opportunity for the worker to profit by sound management and whether - for various reasons - there is a potential to suffer loss. There was no required supply of capital assets by the worker and expenditures were compensated by TTA or - in the case of attendance at the First Nations Summit - by the organizers of the conference through special funding for that purpose.
Integration:
[23] The worker in the within appeal was - in effect - nominated by her community - T'Sou-ke Nation - to be a treaty negotiator through the umbrella organization - TTA - a non-profit society incorporated specially for the purposes set forth in the constitution, all of which related in one manner or another to preparing for and carrying out effective treaty negotiations with the Government of Canada and the Government of the Province of British Columbia including raising funds to finance the treaty negotiation process by receiving grants and entering into loan agreements. The Board of Directors of TTA approved Ardyth Cooper as a suitable candidate to serve as a treaty negotiator and she was offered the opportunity to carry out the required duties pursuant to a written contract (Exhibit R-1). All negotiations were then undertaken pursuant to the policies and directives established by the Board of Directors of TTA, as administered by the staff under the direction of Wilson Bob, Chief of Negotiators. The worker was advised by letter sent by Wilson Bob that she was required to clearly state to a committee dealing with a fish project that her participation was not on behalf of TTA.
[24] At p. 206 of his judgment in Wiebe (supra), MacGuigan, J.A. stated:
"Of course, the organization test of Lord Denning and others produces entirely acceptable results when properly applied, that is, when the question of organization or integration is approached from the persona of the "employee" and not from that of the "employer," because it is always too easy from the superior perspective of the larger enterprise to assume that every contributing cause is so arranged purely for the convenience of the larger entity. We must keep in mind that it was with respect to the business of the employee that Lord Wright addressed the question "Whose business is it?"
Perhaps the best synthesis found in the authorities is that of Cooke, J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All. E.R. 732 at 738-39:
The observations of Lord Wright, of Denning L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" 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 be taken, 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. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.
There is no escape for the trial judge, when confronted with such a problem, from carefully weighing all of the relevant factors, as outlined by Cooke, J."
[25] The business in the within appeal was the activity mandated by the constitution of TTA and it was the raison d'être of that corporate body as a non-profit society. The formation of TTA was for the purposes of serving as an umbrella organization by which negotiations - in a co-ordinated manner - could be carried out on behalf of five First Nations having - to some extent - varied interests which could be presented at the treaty table. One can see an example of an independent contractor by examining the role of Linda Vanden Berg's corporation (Associates Inc.) in the context of her supply of services to TTA and to various other groups within the province wherein there is a separate and distinct structure dealing with TTA on an entity-to-entity basis with the ability of Associates Inc. to carry on dozens of projects at the same time by utilizing staff personnel as well as sub-contractors with expertise in various disciplines as required from time to time. In the within appeal, Ardyth Cooper was hired by TTA as a treaty negotiator at a fixed salary. She was not an individual who was operating a business on her own account. As she stated in her evidence, when she signed the contract - Exhibit R-1 - her main concern was that she was not entering into a working relationship that could be construed in a manner that could imperil the tax-free status of her remuneration as income earned on a reserve and therefore exempt from the provisions of the Income Tax Act. There are some similarities in the within appeal to the case of Sliammon Development Corporation v. M.N.R. [2000] T.C.J. No. 109, dated February 28, 2000. In Sliammon, the worker – Alfred C. Butterfield - was subject to a much higher degree of control and day-to-day supervision and was required to attend at the office of the payor in order to carry out the work. In that appeal, Sliammon Development Corporation (SDC) had advertised for a Business Manager and then had purported to assign the requisite duties to the worker pursuant to a written contract which - as in the within appeal - expired but was then permitted to continue and to govern the ongoing relationship of the parties on the basis that it had been extended or renewed. In Sliammon, the worker - from the outset - had considered himself to be an employee and had taken that position with the SDC accountants and others representing the payor. In the within appeal, Ardyth Cooper's attitude was borne out by the comment that " if it ain't broke don't fix it". She was satisfied to have the purported status of an independent contractor pursuant to the written contract and any continuance thereof - by reason of conduct of the parties as opposed to any written renewal - and to proceed on the same basis as before. It is obvious the pay increase for negotiators was - in no way - tied to the position suddenly having been transformed into a full-time job. However, the jurisprudence is clear on this point. What the parties thought their relationship was will not change the facts. In the case of The Minister of National Revenue v. Emily Standing, 147 NR 238, Stone J.A. at pp. 239 - 240 stated:
"...There is no foundation in the case law for the proposition that such a relationship may exist merely because the parties choose to describe it to be so regardless of the surrounding circumstances when weighed in the light of the Wiebe Door test."
[26] Upon being advised she had been dismissed by TTA, Ardyth Cooper subsequently had a Damascus experience on the road to the Employment Insurance office. In keeping with this revelation concerning a characterization of her status while working at TTA, she sought benefits on the basis she had been an employee all along, working pursuant to a contract of service. This posture is not in accord with her conduct throughout the course of her working relationship with TTA. A comment I made in Sliammon - p. 7 - at paragraph 17 is also relevant here and reads as follows:
"...The jurisprudence is clear that the parties cannot assign themselves a status unless it accords with the facts. However, I find it regrettable that people can accede to an arrangement which - on the surface - may have several indicia consistent with a relationship of independent contractor and then claim to be an employee once the working relationship has come to an end. It seems that one practical benefit of this volte-face is that the born-again employee has been able to escape paying employment insurance premiums and Canada Pension Plan contributions throughout the term of employment and the payor-employer becomes the subject of an assessment for both parts of the premiums and/or contributions on the basis it is the responsibility of an employer under the provisions of the Employment Insurance Act and Canada Pension Plan to remit the appropriate premiums and contributions pertaining to an employee. The facts in the within appeal are not like those sometimes found in appeals where the worker does not have any real bargaining power and is basically forced to go along with a purported status of independent contractor which has been thrust upon him or her by a payor who insists on the worker acquiescing to that characterization as a condition of being hired. In this instance, Butterfield was a highly educated professional and could have taken steps early on to clarify his status but that is a matter of morals and business ethics and does not give rise to any form of estoppel or other consequence in law which is capable of preventing the Court from arriving at a true characterization of status in accordance with the evidence."
[27] Another comment I made in Sliammon (supra), at p. 7 - paragraph 15 - is also relevant to the within appeal. It was made with regard to the continued provision of services by Butterfield even though the term in his contract had expired. I stated:
"...It would be highly unusual for an independent contractor to continue to provide services following the expiration of the term set forth in the contract."
[28] The continuation - by conduct - as opposed to any formal renewal procedures as set out in the contract which expired March 31, 1997, tends to be more consistent with a status of employment pursuant to a contract of service having an indeterminate term rather than a contractual relationship - for a fixed term - between independent parties. The wording of the contract - Exhibit R-1 - signed by Cooper, referred to as "the Consultant" under Term of Contract reads as follows:
"The Consultant agrees that this Agreement will be terminated at the end of March, 1997 and may be renewed subject to being reviewed by the Board of Directors."
[29] As noted earlier, a clause in said contract provided for a 21-day notice to be given to the other party in the event of termination. However, upon informing Cooper she had been dismissed from her position as negotiator, TTA paid her 30 days earnings in lieu of notice. The letter - Exhibit R-10 - dated February 16, 1999 also informed Cooper as follows:
"...Your contract, if such exists, will not be renewed."
[30] The above wording is significant and is supportive of the view that Cooper was engaged in employment pursuant to a contract of service as opposed to supplying her services within an entrepreneurial context as an independent contractor.
[31] It is not the function of this Court to determine whether the action taken by TTA was justified - or not - in terminating the appellant's services and - on occasion - the appeal took on some of the aspects of an unjust dismissal lawsuit. The fact the ongoing funding of TTA may have been somewhat precarious does not justify an attempted transformation of employees into independent contractors any more than a department store clerk working for a retail giant - about to go down the drain - is suddenly an independent sales consultant conducting business on his or her own account. Precariousness of payment for work done does not assist in any determination of employment status.
[32] Taking into account the evidence and applying it in the manner directed by the relevant jurisprudence, I conclude the decision of the Minister is correct and it is hereby confirmed.
[33] The appeal is dismissed.
Signed at Sidney, British Columbia, this 17th day of July 2000.
"D.W. Rowe"
D.J.T.C.C.