Date: 20010611
Docket: 2000-3759-EI,
2000-3760-CPP
BETWEEN:
RIVERSIDE SKATING CLUB,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for judgment
O'Connor, J.T.C.C.
[1] These appeals were heard at Windsor, Ontario on June 1, 2001.
[2] The Reply in the employment insurance appeal (2000-3759(EI)) sets forth the basic facts as follows:
4. The Appellant appealed a ruling to the Respondent for the determination of the question of whether or not Jennifer Jackson (the "Worker") was employed in insurable employment, while engaged by the Appellant for the period from January 1, 2000 to March 14, 2000, within the meaning of the Employment Insurance Act (the "Act").
5. By letter dated June 13, 2000, the Respondent informed the Appellant that it had been determined that the Worker's engagement with the Appellant, during the period in question, was insurable employment for the reason that the Worker was employed pursuant to a contract of service.
6. In making his decision, the Respondent relied on the following assumptions of facts:
(a) the Appellant is a non-profit organization which provides skating programs to the community;
(b) the Appellant was responsible for the registration of students;
(c) the Appellant was responsible for collecting fees from the students or their parents;
(d) the Appellant was responsible for establishing the session schedules;
(e) the Worker was hired by the Appellant as a skating instructor;
(f) the Worker performed her duties at the Riverside arena;
(g) the Worker was paid on a monthly basis by the Appellant, at the rate of $34.00 per hour;
(h) the rate of pay was established by the Canadian Figure Skating Association;
(i) the Appellant had the right to terminate the Worker's services if the Worker did not perform a session, for inappropriate behaviour on the ice or inappropriate behaviour towards a student;
(j) the Appellant determined where, when and to whom the Worker would provide her coaching services;
(k) the Worker was required to perform the services personally;
(l) the Appellant paid for the rental of the ice time, at no charge to the Worker;
(m) the Worker did not incur any expenses in the performance of her duties;
[3] The Reply in the CPP appeal (2000-3760(CPP)) is identical to the foregoing except that paragraph 4 thereof refers to the Canada Pension Plan rather than the Employment Insurance Act.
[4] After listening to the testimony of Theresa Hart, the agent for the Appellant (the "Club") and one of its administrators, and June, Liu-Vajko, another administrator of the Club, I add only the following qualifications to the facts and assumptions set out in the Replies.
[5] The Canadian Figure Skating Association is now called Skate Canada and it was Skate Canada that established the qualifications for a skating coach. The Club could only hire skating coaches approved by Skate Canada. Further, the Worker provided her own skates and looked after the maintenance and sharpening thereof. The Worker would keep track of her hours and submit a periodic bill setting forth the hours of coaching she had done and the pay for those hours. The coaching was on a periodic basis, starting mainly in September and ending in March of the following year.
[6] The Club was a legal, non-profit corporation. There were approximately 129 children as members of the Club aged between three and 18 and there were three different levels or classifications of skaters starting with the very young ones who essentially were learning how to skate and graduating to the last group of relatively accomplished skaters. In the period in question there were four coaches involved. The Worker had no guaranteed hours but generally the hours worked were 24 hours per week. From time to time but not often the Worker, when not able to attend a session would find someone experienced in coaching to take her place for that session. In addition to the hours devoted to Club members, the Worker gave private lessons to some of those members and to others. The administrators were volunteers.
[7] Once again, this is a case of having to determine whether the engagement by the Club of the Worker was a contract of service or a contract for service, i.e. independent contractor.
[8] As usual, in cases of this nature, it is necessary to examine the four elements set forth in the decision of MacGuigan, J. of the Federal Court of Appeal in the matter of Wiebe Door Services Ltd. v. M.N.R. 87 DTC 5025, namely, control, ownership of tools, chance for profit and risk of loss, and the integration test.
[9] As appears from the assumptions set forth in the Replies, there was a considerable measure of control exercised by the Club over the Worker. In particular, the fact that the Club established the session schedules and hired the Worker who performed her duties at a set place, namely the Riverside Arena. Further, the Appellant had the right to terminate the Worker's services as contemplated in the Reply.
[10] As to tools, the Worker owned her skates and maintained same but it was the Club that paid for and provided the ice-time. The Worker had no chance of profit or risk of loss. She was paid simply at the rate of $34.00 per hour.
[11] Further, in my opinion, the Worker's job was an integral part of the services provided by the Club, namely skating lessons.
[12] One of the positions set forth by the agent for the Appellant was that, in essence, the Club was merely an intermediary between the parents of the members who paid the fees for the skating lessons and the Club consequently should not be considered as a separate and distinct employer. In my opinion this position is not correct.
[13] If I had any doubt in this matter, it is resolved by examining the decisions in two cases cited by counsel for the Respondent.
[14] In Puri v. Minister of National Revenue, [1998] T.C.J. No. 175, Rowe, D.T.C.J., in dealing with a case practically on all fours with the present case, stated as follows at paragraph 10:
The appellants were qualified coaches, certified by the CFSA. As members of the CFSA, they were required to adhere to the by-laws, rules and regulations of that organization and to abide by the CFSA Coaching Code of Ethics. The requirement in the contracts between the appellants and the Club to this effect was merely surplusage and does not impact on the aspect of control. There was little supervision over the appellants as they were qualified and able to teach the classes making up the particular programs offered by the Club. However, the Club - at paragraph 3.05 - Exhibit A-2 - reserved the right to determine the type of instruction to be given at a particular session in consultation with the appellants, in their role as a coach. Pursuant to the contract(s), the appellants were required to attend monthly executive meetings of the Club and had to ensure all students were aware of and complied with the rules and regulations of the Club (Paragraphs 4.08 and 4.09 - Exhibit A-2). As coaches, they had to work with the session convenor or other coaches to ensure that all rules and regulations were adhered to and to maintain discipline during a session when directed to do so by the Club (Paragraph 4.10 - Exhibit A-2). They were also obligated to maintain harmonious relations with all Club members, coaches and instructors. More significantly, they were assigned classes or programs that the Club organized, advertised, structured, scheduled and funded by collecting registration fees. The Club set the hourly rate for group instruction and, in the 1995 contract, set the fee of $30 per hour for private lesson time (a curious provision for which no explanation was given). The appellants could not mix any of their own students with a group session taking place under the auspices of the Club. The number of hours of instruction was set by the Club, as was the duration of a particular program. The appellants were required to undertake the instruction personally and, except for limited substitution under certain circumstances, could not subcontract out their duties.
Also, reference is made to a decision of Sobier, T.C.J. in Whistler Mountain Ski Club v. Minister of National Revenue, [1996] T.C.J. No. 876. In that case, the learned judge stated as follows at paragraphs 22 and 25:
22. Supervision or control of how a professional or expert performs his functions cannot be said to be control since the professional generally knows more about his functions than his employer. He can however exercise control over his employee by setting his hours of employment, his place of employment, whether he can come and go at his own wish.
...
25. In the case at bar the coaches were told who they would instruct, when and where the instruction was to be given. They were not able to come and go as they pleased. It is an entrepreneur who takes risks, not an employee. An entrepreneur may say : "If I work hard and long, my efforts will be rewarded". He will say: "The more people I coach, the more I will earn". On the other hand, compensation on piece work or commission basis does not determine self-employment if the employer sets the other standards and otherwise controls the employee. Here, the coach cannot earn more than his per diem or per month rate. If his group shrinks because of non-attendance of athletes, his rate is not reduced. Here, no matter how few or how many hours worked, no matter how few or how many athletes he coached, he earns the same amount. The coaches are assigned groups and told when to coach them. He may not include outsiders into his group. He risks no loss.
[15] Based on the assumptions of the Respondent contained in the Replies (notwithstanding the qualifications noted) and relying on the two cases cited above, I am of the opinion that, on a balance of probabilities, the Worker performed her work under a contract of service. Consequently, she was an employee and as a result the appeals must be dismissed.
Signed at Ottawa, Canada this 11th day of June 2001
|
"T. O'Connor" |
J.T.C.C.COURT FILE NO.: 2000-3759(EI) and 2000-2760(CPP)
STYLE OF CAUSE: Riverside Skating Club and M.N.R.
PLACE OF HEARING: Windsor, Ontario
DATE OF HEARING: June 1, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge T.P. O'Connor
DATE OF JUDGMENT: June 11, 2001
APPEARANCES:
Agent for the Appellant: Terry Hart
Counsel for the Respondent: Rosemary Fincham
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3759(EI)
BETWEEN:
RIVERSIDE SKATING CLUB,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeal of Riverside Skating Club (2000-3760(CPP)
on June 1, 2001 at Windsor, Ontario by
the Honourable Judge Terrence O'Connor
Appearances
Agent for the Appellant: Terry Hart
Counsel for the Respondent: Rosemary Fincham
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 11th day of June 2001.
|
"T. O'Connor" |
J.T.C.C.
2000-3760(CPP)
BETWEEN:
RIVERSIDE SKATING CLUB,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeal of Riverside Skating Club (2000-3759(EI)
on June 1, 2001 at Windsor, Ontario by
the Honourable Judge Terrence O'Connor
Appearances
Agent for the Appellant: Terry Hart
Counsel for the Respondent: Rosemary Fincham
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 11th day of June 2001.
|
"T. O'Connor" |
J.T.C.C.