Docket: 2002-410(CPP)

BETWEEN:

URANIUM CITY HOSPITAL,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

____________________________________________________________________

Appeal heard on common evidence with the appeal of Uranium City Hospital (2002-411(EI)) on March 13, 2003 at Saskatoon, Saskatchewan,

Before: The Honourable Deputy Judge D.W. Rowe
Appearances:
Counsel for the Appellant:	John R. Beckman T. Petrescue
Counsel for the Respondent:	Lyle Bouvier

____________________________________________________________________

JUDGMENT

          The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.

Signed at Sidney, British Columbia, this 27th day of June 2003.

"D.W. Rowe"

D.J.T.C.C.

Citation:2003TCC439

Date: 20030627

Dockets: 2002-410(CPP) 2002-411(EI)

BETWEEN:

URANIUM CITY HOSPITAL,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

REASONS FOR JUDGMENT

Rowe, D.J.T.C.C.

[1]      The appellant appeals from two decisions - both dated October 23, 2001 - issued by the Minister of National Revenue (the "Minister"). The Minister decided Joanne Chisan (Chisan or worker) had been employed in both insurable and pensionable employment with Uranium City Hospital (Hospital or payor) for the periods of August 21, 2000 to September 4, 2000, October 30, 2000 to November 13, 2000, January 30, 2001 to February 13, 2001 and April 30, 2001 to May 14, 2001. The decisions were issued pursuant to the relevant provisions of the Employment Insurance Act (the "Act") and the Canada Pension Plan (the "Plan"), respectively.

[2]      As requested by counsel, the two appeals were heard together.

[3]      Andrew Cebryk testified he resides in Lanigan, Saskatchewan and - on a part-time basis - is the Chief Executive Officer (CEO) of Hospital situated in Uranium City, Saskatchewan. He studied at the University of Saskatchewan and the University of Ottawa and earned a certificate in Health Care Administration. He began his career in health administration - in 1972 - serving as the CEO at Lanigan Hospital and later held the CEO position at Living Sky Health District. After retiring in 1998, he returned to work in August, 1999, by assuming the part-time CEO position at Hospital. At that time, five nurses had resigned and no replacements could be recruited. As a result, Hospital decided to retain the services of nurses on a contract for services basis and had obtained the approval of the Saskatchewan Union of Nurses (SUN) prior to embarking on that course. During the hiatus of nursing coverage, in-patient services were suspended but out-patient and emergency services were maintained. Patients requiring further and/or other forms of medical treatment were evacuated by air transport (medivaced) to hospitals in the south.

[4]      In cross-examination, Andrew Cebryk stated Hospital currently operates under an Order-in-Council and the Minister of Health appoints members from various communities to serve on the Board of Directors. Cebryk receives his remuneration from Hospital even though he was recruited by the provincial Ministry of Health (MOH).

[5]      Joanne Chisan testified she is a Registered Nurse (RN) residing in Saskatoon, Saskatchewan. She graduated - in 1984 - from Wascana Institute in Regina and after working in that city for one year, moved to Saskatoon where she worked 11 years for the Royal University Hospital (RUH). Later, she started working for the air-ambulance unit, operated by MOH. In both of these work situations she had been an employee and a member of SUN. While working at the air-ambulance unit, she learned about the appellant's search for individuals - referred to as "contract nurses" - willing to provide nursing services at Uranium City in northern Saskatchewan, a small, isolated community accessible only by air. The rate of pay offered by Hospital was greater than the daily rate applicable to her regular annual salary. On November 29, 1999, Chisan entered into a contract - Exhibit A-2 - with Hospital wherein she agreed to provide her nursing services on a rotating basis - for a period of two weeks per trip - on the basis that she would be a self-employed professional. However, that original contract covered only the period from November 29 to December 10, 1999. Thereafter, Addendum A - attached to the contract after the last page - was utilized by the parties in order to extend the contract from time to time. Pursuant to her agreement, she worked at Hospital from November 29 to December 10, 1999, then returned to her regular employment at RUH in Saskatoon. She did another rotation at Hospital between April 24 and May 8, 2000 and then returned to Uranium City between August 21 and September 4, 2000 and from October 30 to November 13, 2000. Each time, after finishing the two-week period, she returned to her regular employment at RUH. In 2001, she worked at Hospital from January 30 to February 13 and from April 30 to May 14. Other two-week periods had been arranged but Chisan stated she had to cancel her commitment due to a serious illness which caused her to be hospitalized for two months. In 2002, she undertook another two-week assignment at Hospital but became ill due to a reaction to some medication and had to be medivaced out of Uranium City back to Saskatoon. As a result, she was not able to earn the remainder of her daily fee - as set forth in the contract with Hospital - and there was no other financial compensation forthcoming. Chisan stated she was able to provide her services to Hospital - on a periodic basis - because she was able to derive the benefit of flexible scheduling at RUH in order to accommodate the timeframes during which the appellant required her services. The payment for services began at the rate of $400 per day, including an allowance for two days travel - in and out - of Uranium City and Hospital also paid the airfare, food and travel expenses to and from the airport. Chisan referred to Clause 5.0 - entitled Indemnification - in which she (as the Contractor) agreed to save Hospital harmless and indemnify it from any claims, demands, causes of action of any nature whatsoever that may be made against the Hospital by reason of any act or omission on her part arising from the provision of her services pursuant to their agreement. Pursuant to Clause 6.0 of said contract, she agreed not to assign or transfer the work or services to another person without the prior written consent of Hospital. While performing general nursing duties for Hospital during her two-week stints, Chisan stated there was no supervision of her work other than by attending physicians. She lived inside the facility and also ate her meals there since there were no hotels or cafés in Uranium City. Chisan stated she reported the income earned from providing services to Hospital on the basis she was self-employed. She earned additional income by performing medical examinations for insurance companies and selling Avon products. These forms of income were also included in the category of business income against which Chisan deducted in-home office expenses attributable to generation of that revenue. Prior to agreeing to provide her services to Hospital, Chisan stated she confirmed - with SUN - that her existing professional liability coverage was adequate and would apply to nursing services performed pursuant to her contractual arrangement with Hospital. Chisan stated that in addition to union dues, she was required to pay an annual licensing fee which included the premium for liability insurance.

[6]      In cross-examination by counsel for the respondent, Joanne Chisan was referred to the Questionnaire - Exhibit R-1 - she had completed on October 8, 2001. She agreed her memory of events would have been fresher at that time. At subparagraph 9(b) thereof, in response to the question, "[W]ho supervised you" she responded, "[H]ead Nurse, and/or doctors". Chisan stated the position of Head Nurse was filled by Lisa Clark, also working on contract based on a rotation of two weeks in followed by two weeks out. At subparagraph 4(c) of said Questionnaire, Chisan agreed the rate of $400 per day had been set by the Board of Directors. Chisan stated she was on call 24 hours per day, 7 days a week while at Uranium City but could take some personal time during the day. At any given time, two nurses were on duty to work with the three physicians who were residents of Uranium City. She agreed the appellant provided all the necessary tools and equipment. With respect to income, she reported three different sources on her tax returns for the relevant years including amounts received from employment, performing medical examinations and selling Avon products.

[7]      Donald Stewart testified he obtained his Chartered Management Accountant (CMA) designation after having obtained a Bachelor of Commerce degree from the University of Saskatchewan. Since June, 2000, he has been Director of Finance for the appellant. In order to demonstrate the remoteness of Uranium City, Stewart referred to a map - Exhibit A-3 - on which the three communities of Stony Rapids, Black Lake and Uranium City were highlighted - in yellow - near the Saskatchewan/Alberta border. Additional communities served by Hospital are Fond du Lac and Camsell Portage. The population of that region is approximately 3,500 but Uranium City now has a population of approximately 150. At one point, when it was the centre of uranium mining, the population was about 6,000 but since the decline of that industry there are no businesses remaining to offer lodging, food, beverages or entertainment. During the relevant periods - and currently - Uranium City is accessible only by air since the barge service is no longer operating from Fort McMurray, Alberta. Due to stops at various communities, a flight to Uranium City from Saskatoon takes between 5 and 6 hours, although the actual flying time is about 2 hours. Stewart stated it was difficult to find other nurses willing to work at Hospital after the resignation of the 5 staff nurses. The appellant advertised for replacements but was unsuccessful. As a result, the Board of Hospital decided to pursue a course of action designed to attract interest from nurses who wanted to be independent contractors and provide their services during two-week periods since it was accepted there would be problems having nurses work for any longer period due to the lack of amenities and the isolation. Stewart referred to an Auditor's Report - Exhibit A-4 - dated August 18, 2000 - provided to Members of the Legislative Assembly of Saskatchewan. At Note 1, there is a statement that " [A]s of August 8, 1999 inpatient services at the Uranium City Hospital were suspended due to staff shortages".

[8]      Counsel for the respondent did not cross-examine.

[9]      Counsel for the appellant submitted the working relationship between Chisan and the appellant was somewhat unusual in light of the urgent circumstances following the suspension of certain services following the resignation of the entire nursing staff and the inability of the appellant to hire replacement nurses as employees. Counsel submitted that any marginal amount of supervision over nurses was undertaken by physicians who were not employees of the appellant and only in the context of providing medical care to patients. Further, counsel referred to the ability of Chisan to determine which time periods suited her own work schedule and the presence of risk due to potential professional liability which may not have been fully protected by the insurance coverage provided to her as a member of her union. In addition, counsel pointed to the financial risk suffered by Chisan - in 2002 - when she became ill while working at Hospital and had to return home by air ambulance prior to the expiration of her two-week rotation, thereby losing income. Counsel submitted the trend in recent jurisprudence supported the position that the intent of the parties should be respected when regarded in the context of circumstances applicable to the working relationship and that the totality of the evidence demonstrated Chisan was not an employee of Hospital during the relevant periods.

[10]     Counsel for the respondent submitted the Supreme Court of Canada - in a recent decision - had clarified the state of the law in this regard. Counsel referred to evidence of supervision and control in the sense the worker reported to the physicians and was working in a hospital environment in which there was a designated Head Nurse. Due to the nature of the service provided, counsel conceded the indicia of tools and equipment was not relevant but submitted that taking all other factors into account, the worker was providing her services to the appellant - not pursuant to any status of independent contractor - but as a part-time employee working specified periods on an irregular basis.

[11]     The Supreme Court of Canada - in a recent decision - 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 45 to 48, inclusive, of his judgment stated:

Finally, there is a test that has emerged that relates to the enterprise itself. Flannigan, ... ("Enterprise control: The servant-independent contractor distinction" (1987), 37 U.T.L.J. 25, at p. 29) sets out the "enterprise test" at p. 30 which provides that the employer should be vicariously liable because (1) he controls the activities of the worker; (2) he is in a position to reduce the risk of loss; (3) he benefits from the activities of the worker; (4) the true cost of a product or service ought to be borne by the enterprise offering it. According to Flannigan, each justification deals with regulating the risk-taking of the employer and, as such, control is always the critical element because the ability to control the enterprise is what enables the employer to take risks. An "enterprise risk test" also emerged in La Forest J.'s dissent on cross-appeal in London Drugs where he stated at p. 339 that "[v]icarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents".

In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, ... ([1952] 1 The Times L.R. 101) that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations..." (p. 416) Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, ...(Vicarious Liability in the Law of Torts. London: Butterworths, 1967) at p. 38, that what must always occur is a search for the total relationship of the parties:

[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 that 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.

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.

[12]     I will examine the facts in relation to the indicia set forth in the judgment of Major, J. in Sagaz.

Level of control:

[13]     The worker was obliged to follow the orders of the physicians attending patients in the hospital but the physicians were not employees of the appellant nor was there any evidence they had been hired to exercise any wider supervisory function over the worker or other nurses. Adhering to the dictates of the physicians is a professional obligation inherent in the nursing discipline and does not denote control in the usual sense absent other circumstances indicative of a hierarchical structure usually associated with an employer/employee relationship. The worker was an experienced professional and well aware of her duties and responsibilities. There was a Head Nurse and in that sense there was an individual to whom the worker reported, as required.

Provision of equipment and/or helpers

[14]     This factor is not particularly relevant. Chisan provided her time, talent and dedication to her task. However, she did have the right to assign her duties to another person provided she could obtain the prior written approval of the appellant. That is not the option - albeit restricted - one would expect to be permitted by an employer when engaging the services of individuals on the basis they will be employees.

Degree of financial risk and responsibility for investment and management

[15]     The relevant periods covered by the decision of the Minister commence on August 21, 2000 and end on May 14, 2001. However, the worker began providing her nursing services to the appellant in November, 1999 and - following recovery from her subsequent illness - returned in 2002 only to become ill again due to a different cause. Obviously, the worker was also at financial risk during the limited period covered by the Minister's decision. In 2002, when she became ill and had to be flown to a hospital in Saskatoon, she lost her daily remuneration of $400 for the remaining days of the contracted service period. Throughout, the worker managed her flexible work schedule at RUH and/or at the air ambulance unit - in her capacity as an employee - in order to have time available during which she could earn a fixed daily fee - in excess of her regular salary - by agreeing to provide her services to the appellant. There was also some degree of risk associated with the indemnification clause included in her contract with the appellant. Although she had professional liability coverage as part of her union membership benefits, there was still a greater risk than had she been sued for negligence while an employee of either RUH or the air ambulance unit operated by MOH. When one is an employee, the employer is required to bear the brunt of the litigation but pursuant to a contract for services featuring an indemnification clause, one may - on occasion - find themselves at odds with their own insurer due to certain exclusionary language and/or statutory conditions. The worker was not required to make any investment in order to carry out the terms of her contract with the appellant nor was she expected to exercise any management function within the medical facility other than that required in the discharge of her professional duties.

Opportunity for profit in the performance of tasks

[16]     The worker accepted the sum of $400 per day for her services including two days allotted for travel in and out of Uranium City. The appellant agreed to pay air fare and travel costs in accordance with provincial government rates in effect from time to time. The opportunity for profit lay in the efficient use of her time in the midst of a crowded calendar that had Chisan juggling the demands of full-time employment, part-time entrepreneurial endeavours - such as carrying out medical examinations for insurance companies and selling Avon - and undertaking to provide her services on a rotating basis to the appellant.

[17]     In the case of Minister of National Revenue v. Emily Standing, [1992] F.C.J. No. 890 Stone, J.A. 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 ...

[18]     In Wolf v. Canada, [2002] DTC 6853, the Federal Court of Appeal - post-Sagaz - considered the income tax appeal of a mechanical engineer specializing within the aerospace industry. The question arose whether that appellant was an employee of Canadair or an independent contractor. Analysis of the various factors to be taken into account in deciding this issue was based upon the relevant articles of the Civil Code of Québec in addition to the applicable jurisprudence up to and including the decision of the Supreme Court of Canada in Sagaz, supra. For purposes of the within appeals, the interesting aspect of the decision of the Federal Court of Appeal in Wolf concerns the weight to be given to the intent of the parties in determining the characterization of their working relationship. The discussion is significant in that the caveat inherent in the words of Stone J.A. in Standing, supra, have served to remind parties they cannot merely affix a label to their working situation and expect it to stick unless the overall context otherwise permits. Prior to concluding that the engineer's relationship with Canadair had been that of an independent contractor, Desjardins, J.A. - at paragraph 93 of her reasons for judgment - stated:

Both Canadair's work and the appellant's work were integrated in the sense that they were directed to the same operation and pursued the same goal, namely the certification of the aircraft. Considering, however, the fact that the integration factor is to be considered from the perspective of the employee, it is clear that this integration was an incomplete one. The appellant was at Canadair to provide a temporary helping hand in a limited field of expertise, namely his own. In answering the question 'whose business is it?' from that angle, the appellant's business stands independently. Once Canadair's project was completed, the appellant was, so to speak, ejected from his job. He had to seek other work in the market place. He could not stay at Canadair unless another project was under way.

[19]     Décary, J.A. - concurring in the result - commented at paragraph 115 of his reasons:

As a starting point, I would like to quote the very first paragraph of an article written by Alain Gaucher (A Worker's Status as Employee or Independent Contractor, 1999 Conference Report of Proceedings of the 51st Tax Conference of the Canadian Tax Foundation, p. 33.1):

In an ever-changing Canadian economy, the legal relevance of a worker's status as independent contractor or employee continues to be important. The issues relating to employment status will only increase in importance as employers continue to move toward hiring practices that favour independent contractors and a greater number of individuals enter or re-enter the work force as independent contractors.

[20]     At paragraphs 117 to 120, inclusive, Décary, J.A. continued as follows:

The test, therefore, is whether, looking at the total relationship of the parties, there is control on the one hand and subordination on the other. I say, with great respect, that the courts, in their propensity to create artificial legal categories, have sometimes overlooked the very factor which is the essence of a contractual relationship, i.e the intention of the parties. Article 1425 of the Civil Code of Quebec establishes the principle that ' [t] he common intention of the parties rather than the adherence to the literal meaning of the words shall be sought in interpreting a contract'. Article 1426 C.C.Q. goes on to say that ' [i] n interpreting a contract, the nature of the contract, the circumstances in which it was formed, the interpretation which has already been given to it by the parties or which it may have received, and usage, are all taken into account'.

We are dealing here with a type of worker who chooses to offer his services as an independent contractor rather than as an employee and with a type of enterprise that chooses to hire independent contractors rather than employees. The worker deliberately sacrifices security for freedom ('the pay was much better, the job security was not there, there were no benefits involved as an employee receives, such as medical benefits, pension, things of that nature...' Mr. Wolf's testimony, Appeal Book, vol. 2, p. 24). The hiring company deliberately uses independent contractors for a given work at a given time ('it involves better pay with less job security because consultants are used to fill in gaps when local employment or the workload is unusually high, or the company does not want to hire additional employees and then lay them off. They'll hire consultants because they can just terminate the contract at any time, and there's no liabilities involved', ibid., p. 26). The hiring company does not, in its day-to-day operations, treat its consultants the same way it treats its employees (see para. 68 of Madam Justice Desjardins's reasons). The whole working relationship begins and continues on the basis that there is no control and no subordination.

Taxpayers may arrange their affairs in such a lawful way as they wish. No one has suggested that Mr. Wolf or Canadair or Kirk-Mayer are not what they say they are or have arranged their affairs in such a way as to deceive the taxing authorities or anybody else. When a contract is genuinely entered into as a contract for services and is performed as such, the common intention of the parties is clear and that should be the end of the search. Should that not be enough, suffice it to add, in the case at bar, that the circumstances in which the contract was formed, the interpretation already given to it by the parties and usage in the aeronautic industry all lead to the conclusion that Mr. Wolf is in no position of subordination and that Canadair is in no position of control. The 'central question' was defined by Major, J. in Sagaz as being 'whether the person who has been engaged to perform the services is performing them as a person in business on his own account'. Clearly, in my view, Mr. Wolf is performing his professional services as a person in business on his own account.

In our day and age, when a worker decides to keep his freedom to come in and out of a contract almost at will, when the hiring person wants to have no liability towards a worker other than the price of work and when the terms of the contract and its performance reflect those intentions, the contract should generally be characterised as a contract for services. If specific factors have to be identified, I would name lack of job security, disregard for employee-type benefits, freedom of choice and mobility concerns.

[21]     In his brief judgment - also concurring in the result - Noël, J.A. considered the matter of intention of the parties and his reasons are reproduced below:

I too would allow the appeal. In my view, this is a case where the characterization which the parties have placed on their relationship ought to be given great weight. I acknowledge that the manner in which parties choose to describe their relationship is not usually determinative particularly where the applicable legal tests point in the other direction. But in a close case such as the present one, where the relevant factors point in both directions with equal force, the parties' contractual intent, and in particular their mutual understanding of the relationship cannot be disregarded.

My assessment of the applicable legal tests to the facts of this case is essentially the same as that of my colleagues. I view their assessment of the control test, the integration test and the ownership of tool tests as not being conclusive either way. With respect to financial risk, I respectfully agree with my colleagues that the appellant in consideration for a higher pay gave up many of the benefits which usually accrue to an employee including job security. However, I also agree with the Tax Court Judge that the appellant was paid for hours worked regardless of the results achieved and that in that sense he bore no more risk than an ordinary employee. My assessment of the total relationship of the parties yields no clear result which is why I believe regard must be had to how the parties viewed their relationship.

This is not a case where the parties labelled their relationship in a certain way with a view of achieving a tax benefit. No sham or window dressing of any sort is suggested. It follows that the manner in which the parties viewed their agreement must prevail unless they can be shown to have been mistaken as to the true nature of their relationship. In this respect, the evidence when assessed in the light of the relevant legal tests is at best neutral. As the parties considered that they were engaged in an independent contractor relationship and as they acted in a manner that was consistent with this relationship, I do not believe that it was open to the Tax Court Judge to disregard their understanding (Compare Montreal v. Montreal Locomotive Works Ltd.,    [1947]    1 D.L.R. 161 at 170).

[22]     In the case of West Direct Express Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2003] T.C.J. No. 373, Porter D.J.T.C.C. decided a case involving an individual providing courier services to the corporate market in Calgary. At paragraph 14 of his reasons, Judge Porter commented:

I am further mindful that as a result of the recent decisions of the Federal Court of Appeal in Wolf v. Canada, [2002] F.C.J. No. 375, and Precision Gutters Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2002] F.C.J. No. 771, a considerable degree of latitude seems now to have been allowed to creep into the jurisprudence enabling consultants to be engaged in a manner in which they are not deemed to be employees as they might formerly have been...

[23]     After referring to the quotation of Décary, J.A. in Wolf, supra, Judge Porter continued:

Thus, it seems to this Court that the pendulum has started to swing, so as to enable parties to govern their affairs more easily in relation to consulting work and so that they may more readily be able to categorize themselves, without interference by the Courts or the Minister, as independent contractors rather than employees working under contracts of service.

In conclusion, there is no set formula. All these factors bear consideration and as Major J. said in the Sagaz case (above), the weight of each will depend upon the particular facts and circumstances of the case. Many of the tests can be quite neutral and can apply equally to both types of situation. In such case, serious consideration has to be given to the intent of the parties. Thus is the task of the trial Judge.

[24]     As outlined - at Note 1 - of the Auditor's Report - Exhibit A- 4 - Hospital found itself in a precarious situation. The operation of Hospital had been taken over pursuant to an Order-in-Council under the Public Health Act of Saskatchewan. A Board of Directors was established later and - in 1996 - the provincial Minister of Municipal Government transferred the net assets of Hospital to the Board for no monetary consideration. In August, 1999, all the nurses walked off the job and no replacements could be found who were willing to provide their services in accordance with the usual conditions applicable to an employer/employee relationship. The CEO of Hospital was a retired professional administrator who agreed to accept the challenge on a part-time basis while residing in his own municipality of Lanigan and attending at Uranium City from time to time, as required. The Director of Finance was a Saskatoon accountant with his own practice. The only permanent members of the medical staff and/or hospital administration appear to be the three resident physicians. Everyone else - including the Head Nurse - flew to Uranium City and worked for two weeks at a time. Some attended more often than others and Chisan was able to choose the periods when she was available to provide her services. One should guard against the temptation to use brute force - even if sanctioned by longstanding tradition - in order to drive an irregular-shaped peg into a round hole. In the within appeals, the indicia referred to by Major, J. are inconclusive. However, in my view, they favour a finding that the worker was an independent contractor even in the absence of an agreement to that effect. On the evidence, I cannot find any reason to displace the intention of the parties - as disclosed by the terms of their contract - to govern their own working relationship, particularly when reacting to extreme difficulties arising from an unforeseen series of events. A bustling, vibrant community of nearly 6,000 had been reduced by the vagaries of a specialized resource economy to a mere 150 hardy souls sharing a northern region populated by another 3,400 persons living in or near several other small remote villages accessible to southern urban centres only by air. The residents of that region still required medical treatment to the best level attainable under the circumstances. The solution chosen by the provincial government and - later - administered by the Board of Hospital was to utilize a business method whereby nurses would provide their services on the basis they were not employees but were in business on their own account for that specific purpose. One does not have to be a specialist in Saskatchewan politics to infer that the imprimatur of the nurses' union - SUN - with respect to this method of retaining the services of its members must have been based in large measure on an appreciation of the unique situation in Uranium City and the compelling need to provide nursing care to residents of that region.

[25]     The worker is an experienced nurse. She earned income from nursing apart from her salary from employment. One source was the insurance companies which retained her services to provide medical examinations and another was Hospital which paid for her professional services in accordance with the terms of their contract. Chisan was prepared to sacrifice holiday time or other earned days-off in exchange for the opportunity to apply her skills in a remote municipality for a two-week period at a rate of remuneration in excess of her usual salary when calculated on a daily basis. I cannot find any reason to conclude that the terms and conditions of the contract entered into by the worker and the appellant were inconsistent with the reality of their working relationship to the point where their agreement should be rejected in favour of an alternate characterization of working status supported only by weak and inconclusive factors within the framework of a global analysis.

[26]     Both appeals are allowed. In each instance, the decision of the Minister - dated October 23, 2001 - is varied to find:

- Joanne Chisan was not engaged in either insurable or pensionable employment with Uranium City Hospital during the periods from August 21 to September 4, 2000, October 30 to November 13, 2000, January 30 to February 13, 2001 and April 30 to May 14, 2001 because she was providing her services as an independent contractor.

Signed at Sidney, British Columbia, this 27th day of June 2003.

"D.W. Rowe"

D.J.T.C.C.

CITATION:

2003TCC439

COURT FILE NO.:

2002-410(CPP) and 2002-411(EI)

STYLE OF CAUSE:

Uranium City Hospital and M.N.R.

PLACE OF HEARING:

Saskatoon, Saskatchewan

DATE OF HEARING:

March 13, 2003

REASONS FOR JUDGMENT BY:

Honourable Deputy Judge D.W. Rowe

DATE OF JUDGMENT:

June 27, 2003

APPEARANCES:

Counsel for the Appellant:

John R. Beckman Michael T. Petrescue

Counsel for the Respondent:

Lyle Bouvier

COUNSEL OF RECORD:

For the Appellant:

Name:

John R. Beckman

Firm:

McKercher McKercher & Whitmore Saskatoon, Saskatchewan

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada