[2013] 3 F.C.R. D-7
Pensions
Appeals from eight Tax Court of Canada (T.C.C.) decisions (unreported) dismissing appellants’ respective appeals from respondent’s decisions determining that three concerned individuals employed by appellants in pensionable employment within meaning of Canada Pension Plan, R.S.C., 1985, c. C-8, in insurable employment within meaning of Employment Insurance Act, S.C. 1996, c. 23—First appellant (1392644 Ontario Inc.) licensed to operate foster homes, group homes through which providing care for children having serious behavioural, development disorders—Services delivered by numerous individuals retained by appellant, including child, youth workers, social workers—Second appellant (1324455 Ontario Inc.) operated as service provider to first appellant—At issue three individuals retained by appellants; all signing similar contracts with appellants to provide, in particular, child care services as independent contractors—Based on previous decisions involving first appellant, T.C.C. concluding that concerned individuals not independent contractors since both appellants exercising significant control over workers; that contracts’ provisions qualifying workers as independent workers not consistent with how contractual relationship operating in fact; that no evidence that first appellant’s operations having changed since previous decisions rendered— Whether T.C.C. erring by placing weight on findings of fact made in other T.C.C. judgments; by not considering, misapplying test to determine whether worker employee or independent contractor—When similar facts submitted repeatedly by same party to different judges, where same conclusions drawn therefrom by all judges, not inappropriate for trial judge to make note thereof—In present case, T.C.C. properly noting that facts surrounding operations of first appellant same as those considered before by other T.C.C. judges—While first appellant not providing evidence that facts in issue now different, T.C.C. reviewing, weighing evidence submitted, reaching own conclusions based thereon—Test to determine whether worker acting as employee or independent contractor being whether individual performing services as own business on own account—Test difficult to apply with degree of certainty—Alongside well-known case law test, more recent (two cases in particular) trend emerging in case law affording substantial weight to parties’ stated intention—One such case, Royal Winnipeg Ballet v. M.N.R., 2006 FCA 87, [2007] 1 F.C.R. 35, clarifying idea that parties’ intent be given substantial weight; stating that mutual understanding between parties must first be considered before applying established test—However, applying approach in Royal Winnipeg proving difficult—Properly understood, approach set out therein emphasizing well-known principle that persons entitled to organize their affairs, relationships as best deemed fit but that legal effect resulting from relationship not matter which parties can simply stipulate in contract—Insufficient to simply state in contract that services provided as independent contractor to make it so—Given legal ramifications of employee-employer relationship, legal status of independent contractor or employee not determined solely on basis of parties’ intent as declared thereby—Determination also having to be grounded in verifiable, objective reality—Royal Winnipeg, Wolf v. Canada, 2002 FCA 96 setting out two-step process of inquiry used to address central question of determining whether individual performing services as own business on own account—Under first step, subjective intent of each party to relationship must be ascertained; second step involving determining whether objective reality sustaining parties’ subjective intent—In present case, although T.C.C. inversing order of test, insufficient to vitiate decision since evidence supporting conclusions reached—T.C.C. not erring in finding that concerned individuals not providing services to appellants as own business given, inter alia, significant degree of control appellants exerting thereover—Evidence suggesting that legal relationship between appellants, concerned individuals consistent with that of employer-employee rather than of independent contractor, notwithstanding terms set out in respective contracts—Consequently, appellants failing to convince Court that T.C.C. making palpable, overriding error in assessing evidence, in drawing conclusion that concerned individuals employees employed in insurable, pensionable employment—Appeals dismissed.
1392644 Ontario Inc. v. Canada (National Revenue) (A-117-12, A-118-12, A-122-12, A-125-12, A-126-12, A-127-12, 2013 FCA 85, Mainville J.A., judgment dated March 20, 2013, 22 p.)