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Docket: 2003-4256(EI) |
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BETWEEN: |
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RICHARD D. GARNEAU, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent, and
PAMELA HOLMERSON, Intervener. |
____________________________________________________________________
Appeal heard together on common evidence with the appeal of Richard D. Garneau (2003-4259(CPP))on June 15, 2004 at Calgary, Alberta
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Before: The Honourable Justice D.W. Beaubier |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent:
For the Intervener: |
John-Paul Hargrove
Pamela Holmerson |
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JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Saskatoon, Saskatchewan, this 29th day of June 2004.
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"D.W. Beaubier" |
Beaubier, J.
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Docket: 2003-4259(CPP) |
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BETWEEN: |
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RICHARD D. GARNEAU, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent, and
PAMELA HOLMERSON, Intervener. |
____________________________________________________________________
Appeal heard together on common evidence with the appeal of Richard D. Garneau (2003-4256(EI))on June 15, 2004 at Calgary, Alberta
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Before: The Honourable Justice D.W. Beaubier |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent:
For the Intervener: |
John-Paul Hargrove
Pamela Holmerson |
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Saskatoon, Saskatchewan, this 29th day of June 2004.
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"D.W. Beaubier" |
Beaubier, J.
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Citation: 2004TCC456 |
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Date: 20040629 |
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Docket: 2003-4256(EI) 2003-4259(CPP) |
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BETWEEN: |
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RICHARD D. GARNEAU, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent, and
PAMELA HOLMERSON, Intervener. |
____________________________________________________________________
REASONS FOR JUDGMENT
Beaubier, J.
[1] These appeals were heard together on common evidence at Calgary, Alberta on June 15, 2004. The Appellant testified. The Respondent called the Intervener, Pamela Holmerson (the "Worker"). The amounts in dispute and the hours and days were agreed by all the parties to be those set out in Exhibit A-4 and on page 1 of Exhibit A-9 and they are found to be the only dates, hours and amounts respecting the Worker and Jeanette and Richard Garneau in the calendar year 2001, contrary to any particulars to the contrary which may be alleged by the Respondent in the T-4, Exhibit A-1, or in the Notice of Assessment, Exhibit A-2.
[2] The particulars in dispute are set out in the Reply to the Notice of Appeal in 2003-4259(CPP), paragraphs 5 to 9 inclusive, which read:
5. In response to the appeal, the Minister decided that:
(a) the employment was pensionable as the Worker was employed by the Appellant under a contract of service for the periods February 1, 2001 to April 30, 2001 and October 20, 2001 to November 25, 2001, and
(b) notwithstanding the above, if it is determined that the Appellant was not the employer, then Jeanette was the employer and the Appellant was the deemed employer because he paid the Worker.
6. Jeanette did not appeal to the Minister for a reconsideration of the Notices of Assessment dated March 18, 2003.
7. In so deciding as the Minister did the Minister relied on the following assumptions of fact:
(a) Jeanette has Multiple Sclerosis and requires home care;
(b) Jeanette suffers from a cognitive impairment and is incapable of entering into a legal contract;
(c) the Appellant entered into an agreement with the Calgary Regional Health Authority to act as Jeanette's "self care manager";
(d) the Appellant advertised for a home care worker position in a local paper;
(e) the Appellant hired the Worker to provide home care to Jeanette;
(f) the Worker was Jeanette's primary care giver from February 1, 2001 to April 30, 2001 and the secondary care giver from October 20, 2001 to November 25, 2001;
(g) the Worker earned a set hourly wage;
(h) the Worker originally earned $10.00 per hour which was increased to $12.00 per hour and then to $13.00 per hour;
(i) the Appellant determined the Worker's rate of pay;
(j) the Appellant paid the Worker on a semi-monthly basis;
(k) the Appellant and Jeanette determined the Worker's hours and days of work;
(l) work hours needed to be scheduled to ensure that Jeanette received appropriate care;
(m) the Worker was normally required to work 7 to 8 hours per day;
(n) the Worker was not free to come and go as she pleased;
(o) the Worker kept track of her hours and submitted a record to the Appellant;
(p) the Appellant and or Jeanette instructed the Worker on a daily basis;
(q) the Worker was required to inform the Appellant of any leave requirements;
(r) the Worker's personal service was required;
(s) the Worker performed her services at the Appellant's premises;
(t) government agencies provided the supplies, tools and equipment to Jeanette for her use;
(u) the Worker did not provide any tools or equipment;
(v) the Worker did not incur any expenses in the performance of her duties;
(w) the Worker had no investment in the business, and
(x) an Umpire's decision was issued on February 27, 2003, in accordance with the Employment Standards Code Statutes of Alberta, and it was determined that the Worker was an employee while performing services for Jeanette.
B. ISSUES TO BE DECIDED
8. The issue to be decided is whether the Worker was employed under a contract of service with the Appellant during the periods from February 1, 2001 to April 30, 2001 and October 20, 2001 to November 25, 2001.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
9. The Respondent relies on, among other things, paragraph 6(1)(a) and subsection 2(1) of the Canada Pension Plan and section 8.1 of the Canada Pension Plan Regulations.
[3] Assumptions 7 (a), (b), (c), (d), (e), (f), (j), (k), (l), (m), (n), (p), (q), (r), (s), (t), (u), (v), (w) and (x) were not refuted. With respect to the remainder:
(g) and (h) The Worker's hourly wages were:
February $10.00 per hour
March and April $10.50 per hour
October 20 to November 5 $12.00 per hour
November 16 to 25 $13.00 per hour
(i) and (o) The Appellant and the Worker negotiated the rate of pay and each kept track of hours.
[4] There have been several forms of litigation by the Queen and the parties respecting many issues between the parties during the times in question. The Appellant raised issue estoppel as a ground for halting these two appeals. The Court finds that issue estoppel does not apply. These appeals are respecting insurance, Employment Insurance and pension, Canada Pension Plan, premiums. Neither of these two statutory bodies were part of the previous litigation, nor were their specific rules applicable to that litigation.
[5] Using the four-fold test set out in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553:
1. Control
Jeanette Garneau suffered from Multiple Sclerosis and at times could not give directions. Richard was the primary care giver and he directed the Worker in all alleged employment matters. Richard controlled the Worker.
2. Ownership of Tools
All tools were owned or in the control of the Garneaus. The Worker supplied no tools.
3. Chance of Profit, Risk of Loss
The Worker had no chance of profit or risk of loss. If she came to work, she was paid a wage.
4. Integration
The Worker was completely integrated into the Garneaus' household and care routine at the direction of Richard and Jeanette. She was not in business. She was a care-giver employee of the Appellant.
[6] For these reasons, the appeal is dismissed. However it is clear that from the beginning the Worker and Richard arranged an employment contract and that Richard agreed to pay the Appellant for statutory holidays and other employment benefits such as holiday pay. (See Exhibits R-1 and A-9). Thus when the Worker received her gross wages they included her employee premiums for Employment Insurance and Canada Pension Plan and she, as a long time wage earner and an experienced employee, knew that. It was implicit in their agreement that she is Richard's agent to pay the employees' portions of the premiums in dispute and that was a condition of the Worker receiving her gross wages. Nonetheless, Richard remains responsible for the employer portions of the premiums.
Signed at Saskatoon, Saskatchewan, this 29th day of June 2004.
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"D.W. Beaubier" |
Beaubier, J.
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CITATION: |
2004TCC456 |
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COURT FILE NOS.: |
2003-4259(CPP) 2003-4256(EI) |
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STYLE OF CAUSE: |
Richard D. Garneau v. The Queen |
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PLACE OF HEARING: |
Calgary, Alberta |
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DATE OF HEARING: |
June 15, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Beaubier |
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DATE OF JUDGMENT: |
June 29, 2004 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent:
For the Intervener: |
John-Paul Hargrove
Pamela Holmerson |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |