Board of Education of Red Coat Trail v. M.N.R.

Board of Education of Red Coat Trail v. M.N.R. Court (s) Database Tax Court of Canada Judgments Date 2004-09-16 Neutral citation 2004 TCC 612 File numbers 2003-1311(EI) Judges and Taxing Officers David W. Beaubier Subjects Employment Insurance Act Decision Content Docket: 2003-1311(EI) BETWEEN: BOARD OF EDUCATION OF RED COAT TRAIL, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent, and TAMMY BEAUBIEN, Intervenor. ____________________________________________________________________ Appeal heard on September 1, 2004 at Regina, Saskatchewan Before: The Honourable Justice D.W. Beaubier Appearances: Agent for the Appellant: Geraldine Knudsen Counsel for the Respondent: For the Intervenor: Penny Piper The Intervenor herself ____________________________________________________________________ JUDGMENT The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment. Signed at Vancouver, British Columbia, this 16th day of September, 2004. "D.W. Beaubier" Beaubier, J. Docket: 2003-1318(CPP) BETWEEN: BOARD OF EDUCATION OF RED COAT TRAIL, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent, and TAMMY BEAUBIEN, Intervenor. ____________________________________________________________________ Appeal heard on September 1, 2004 at Regina, Saskatchewan Before: The Honourable Justice D.W. Beaubier Appearances: Agent for the Appellant: Geraldine Knudsen Counsel for the Respondent: For the Intervenor: Penny Piper The Intervenor herself ____________________________________________________________________ JUDGMENT The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment. Signed at Vancouver, British Columbia, this 16th day of September, 2004. "D.W. Beaubier" Beaubier, J. Citation: 2004TCC612 Date: 20040916 Docket: 2003-1311(EI) 2003-1318(CPP) BETWEEN: BOARD OF EDUCATION OF RED COAT TRAIL, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent, and TAMMY BEAUBIEN, Intervenor. REASONS FOR JUDGMENT Beaubier, J. [1] These appeals were heard together on common evidence at Regina, Saskatchewan, on September 1, 2004. Merle Nostbakken, M. Ed., an educational psychologist for the Appellant and Marc Danylchuk, B.Sc., B. Ed., M. Ed., Director of Education for the Appellant testified for the Appellant. Tammy Beaubien, B.S.W. was subpoenaed by the Respondent and also testified on her own behalf. [2] Paragraphs 4 to 7 inclusive of the Reply to the Notice of Appeal, docket number 2003-1318(CPP), set out the particulars in dispute. They read: 4. In response to the appeal, the Minister decided that the Worker was employed under a contract of service with the Appellant for the period September 20, 2001 to June 14, 2002. 5. In so deciding, the Minister relied on the following assumptions of fact: (a) the Appellant is a school board; (b) the Appellant hired the Worker; (c) the Worker was hired as a "community school-based family resource worker" and her duties included developing action plans for risk students and their families; (d) the Appellant and the Worker entered into a written contract which included the following: (i) the Worker is an independent contractor, (ii) the period of the contract was from September 20, 2001 to September 19, 2002, (iii) the Worker shall provide service to the three "Shared Services Region School Divisions" (hereinafter "the School Divisions"), (iv) a detailed description of the Worker's duties, (v) the Worker shall provide 40 hours of service, to the Appellant, each week and shall submit a daily timetable, (vi) the Worker shall meet regularly with the referral and review committee, (vii) the administrative coordinator shall supervise the work of the Worker, (viii) the Appellant shall pay the Worker $36,500 in 12 equal instalments, (ix) the Appellant shall reimburse the Worker for expenses incurred for travel, (x) the Worker shall comply with all policies of the Appellant, and (xi) the contract is not assignable. (e) the Appellant paid the Worker a set monthly wage; (f) the Appellant set the Worker's wage rate; (g) the Worker was also entitled to vacation pay; (h) the Worker normally worked 40 hours per week, Monday to Friday; (i) the Worker spent the majority of her time at school; (j) the Worker was required to work during the days that school was in session; (k) the Worker was required to submit an attendance record which was then verified; (l) the Appellant retained the right to control the Worker; (m) the Appellant is a member of the School Divisions along with the Borderland and Golden Plain school divisions; (n) the School Divisions had a coordinator (hereinafter "the Coordinator"); (o) the Coordinator was a member of the "referral & review committee" and the "family services worker steering committee"; (p) the Coordinator was also the director of education for the Appellant; (q) the "referral & review committee" (hereinafter "the Committee") provided work to the Worker and reviewed the Worker's work; (r) the Worker was directed and supervised by the Coordinator and the Committee; (s) the Worker received written and verbal instructions regarding referrals, and input, from the Committee; (t) the Worker's priorities were determined by the Committee and the Coordinator; (u) the Worker provided records and documentation of her activities, including a "work table", to the Committee; (v) the Worker was required to provide verbal and written reports on client progress, to the Committee, on a regular basis; (w) the Worker could not replace herself; (x) the Worker provided her services at school and at the student's home; (y) the worker provided her own vehicle; (z) the Appellant provided office space, office equipment, a laptop computer, forms, stationary, and a telephone; (aa) the Appellant reimbursed the Worker for her mileage, meals, conventions, conferences and accommodations; (bb) the Worker was required to complete an "expense claim form" for expenses incurred; (cc) the Worker did not have a chance of profit or risk of loss, and (dd) the Worker was employed under a contract of service with the Appellant. B. ISSUES TO BE DECIDED 6. The issue to be decided is whether the Worker was employed under a contract of service with the Appellant during the period September 20, 2001 to June 14, 2002. C. STATUTORY PROVISIONS RELIED ON AND RELIEF SOUGHT 7. The Respondent relies on, among other things, paragraph 6(1)(a) and subsection 2(1) of the Canada Pension Plan. [3] Only assumptions 5 (g), (h), (l), (w), (cc) and (dd) were refuted or require the following comments: (g) The contract did not formally describe vacation pay. It paid $36,500 per year over 12 months and required 48 weeks of work. (h) Mr. Danylchuk stated that Tammy worked more than 40 hours per week. He is believed. (l) Is in dispute, but is essentially correct. (w) If Tammy could not work, a second resource worker under contract took over her case load. (cc) and (dd) Are the matters in dispute. [4] The Appellant is the agent in this matter for a composite unincorporated public body designed to assist school students to attend school or complete their studies, but who have behavioural, financial or family problems which interfere with the students. The body is titled the "Board School-Based Family Resource" (the "Board") in Tammy's contract (Exhibit A-4). The Board and Tammy's work are related to out-of-school services required for students to get them through school. [5] Tammy's contract for the period in question (Exhibit A-4) contains the following paragraphs, which were adhered to by the parties: Contract for the Provision of Community School-Based Family Resource Worker Services THIS AGREEMENT MADE IN DUPLICATE BETWEEN: The Board of Education of the Red Coat Trail School Division No. 69 of Saskatchewan (the Board) -and- Tammy L. Norton, of Scout Lake, Saskatchewan (the Contractor) WHEREAS the Board requires the provision of services related to the Community School-Based Family Resources; AND WHEREAS the Tammy L. Norton is an independent contractor who has the capability of providing those services to the Board; NOW THEREFORE this agreement witnesseth that the parties hereby covenant and agree as follows: 1. (a) For a term commencing on September 20, 2001 to September 19, 2002 the Contractor shall provide to the Board Community School-Based Family Resource services to the three Shared Services Region School Divisions, namely, Borderland, Golden Plains and Red Coat Trail. Such services shall include: i. using the Wraparound Process concept to facilitate the development of individualized, long-term support plans of formal and/or informal services for vulnerable students and their families ii. developing, implementing and/or coordinating prevention and intervention activities (e.g., anger management training, parenting sessions) which address the needs of at risk students and their families. These activities normally will be in small-group settings, and will occur at times suitable for the clients. The nature of the particular programs will evolve as the needs of vulnerable students and their families become known iii. forming and maintaining linkages and collaborating with community agencies, institutions, and individuals who are integral to the successful deployment of integrated services for children and families associated with the school divisions iv. consulting on a regular basis with those members of the Community Resource Program Committee who have been assigned supervisory roles v. providing services, as much as possible, throughout the school divisions as outlined in the Community School-Based Family Resource Program document vi. keeping records and documenting activities as described in the program document and other related services as shall be mutually agreed upon from time to time. (b) These services shall be provided at times to be mutually agreed upon by the parties. (c) The Contractor shall generally provide 40 hours of service to the Board in each week, and shall submit a daily timetable to the school secretary to facilitate contacting the contractor during the day. The Contractor shall work for a minimum of 48 weeks and generally be available during those days that school is in session. Flexibility in scheduling is to be expected. (d) The contractor shall provide the services hereby contracted to the professional standard to which Family Resource providers are expected to perform in Saskatchewan, or the standard for provision of those services in educational institutions which the Board has communicated to the Contractor. 2. The Contractor shall meet regularly with the Referral and Review Committee to discuss issues related to the program and to receive feedback. The Administrative Coordinator of ABW Shared Services shall supervise the work of the Contractor. 3.(a) The Board shall pay the Contractor the total amount of $36,500 for the services provided under this agreement payable, subject to clause 3(b), in 12 equal instalments on the 25th day of each month from September 20, 2001 to September 19, 2002, inclusive. (b) The parties agree that a major portion of the services contracted for hereunder require direct contact with pupils or engagement in collaborative activities with students and family members & institutions, generally during the work period. Therefore, in the event that the Contractor is not available to provide services on any day that school is in session and those services cannot be provided on another day, the contract price set out above shall be reduced by 1/240 of the total contract price for each such day on which the Contractor does not provide services. 4. The Board shall reimburse the Contractor for expenses incurred for travel necessary in the provision of services at the rate and subject to the conditions provided by the Red Coat Trail School Division Policy GBAC in effect from time to time. 5.(a) The Contractor shall comply with all laws that apply to the Contractor in respect of the provision of services under this contract. (b) The Contractor shall comply with all policies of the Board that apply to the Contractor in respect of the provision of services under this contract. 6. If the Contractor fails to make any report, return, deduction or contribution required by the Employment Insurance Act, Canada Pension Plan, any federal or provincial taxation statute, or any other law to be made in respect of the Contractor and, as a result of that failure, the Board is required to make any expenditure in relation to that failure of the Contractor, the amount of the expenditure made by the Board is deemed to have been advanced to the Contractor on the price of the services herein contracted for. If the Board is required to make such a payment after the contract price specified in clause 3(a) has been paid, or beyond that total contract price, that amount is a debt due the Board from the Contractor. 7. The Contractor shall supply, at the Board's request, all information related to the services supplied under this contract that the Board may require for its purposes. 8. This contract is not assignable by the Contractor but shall remain binding and effective on the successors and assigns of the Board. 9. This contract remains in force until September 19, 2002 unless terminated earlier in accordance with section 10 of this agreement. 10. (a) This contract may be terminated prior to September 19, 2002: i. By either party, by giving the other party at least 30 days' written notice of the termination; ii. By the Board without notice, if the Contractor, fails to provide the services, or fails to provide the services to the standard, set out in section 1. (b) If the contract is terminated pursuant to clause (a), the total price payable under this contract to the date of termination for the services contracted to be provided is an amount which bears in proportion to the total contract price the ratio which the services provided by the contractor to the date of termination bear to the total services agreed to be provided herein. 11. Any amendment to this agreement must be made in writing and signed by both parties. [6] Part of the argument of the Appellant is that it was not the contractor or "employer". There are two problems with that. 1. It signed the contract. 2. Even if it is not the contractor, it is the agent for the Board and as agent, it is liable under the contract. Finally, other bodies involved in the Board knew that some legal entity had to receive the grants and funding, account for them, and enter into contracts for the Board. The Board appointed the Appellant to do this and the Appellant accepted that appointment. Thus in relation to Tammy, the Appellant accepted responsibility under its contract with her and, in any event, is responsible as agent of the Board. [7] Respecting the contract, Exhibit A-4, the evidence respecting the following clauses is clear and unequivocal that: 1.(a)(iv) Tammy reported to the Board at its meetings every two weeks and took direction from the Board and its appointed supervisors over her. 1.(a)(vi) Documented and reported her activities to the Board and its appointed supervisors. Some of her routine reports, as distinct from her client-related reports are in exhibit. 2. Did this faithfully and received all of her referrals from the Committee and report back to the Committee on the clients' progress through the enumerated "stages" set and mandated by the Committee. 3.(b) Did attend at her office in the Appellant's premises in school hours and did provide the services required. 4. Did receive her expenses accordingly. (It should be stated that, in the Court's view, this particular arrangement was merely one of administrative convenience and does not of itself indicate employment. Rather, it was a convenient operating system, based on an existing system). [8] Using the Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] F.C. 553 tests: 1. Control: Tammy was controlled by the Board. She received all of her directions from it, took courses it approved, dealt with its clients as it directed and reported to it according to its routines, forms and timing. The timing of the completion of her various stages of work on ongoing files was done at its direction. 2. Tools: All of her office premises, equipment, and forms were supplied by the Board or the Appellant at the Board's direction, except her vehicle, for which she was paid mileage. 3. Chance of Profit or Loss: Tammy was paid regularly and received sick leave, holidays and other normal benefits associated with a salaried position. She apparently did work hours in excess of 40 hours a week, and this could constitute a loss to her. However, her general arrangement was that of an employee who did not have a pension benefit. 4. Integration: Tammy was fully integrated into the Board's functions. Neither could operate without the other during the period in question. Tammy was not in business on her own account. [9] Part of the problem in this case is that the whole programme was new and developing during the period in question. It required the good will and active cooperation of all of the care suppliers and because it was new and developing, the Board had to participate actively and Tammy had to report in detail so that each could assist the other to function and Tammy could be directed to carry out the developing policy and activity of the board in a developing, non-school programme to determine and meet all the non-school necessities to keep children in school and give them a good education and a good start in life. The result is that the Committee of the Board, and its supervisor, directed Tammy as to the who, what, why and sometimes or, perhaps often (depending on the case), the when and where; and because every thing was new and developing, Tammy had to receive this direction in order to perform her duties under what were developing guidelines. Thus, while all involved were completely bona fide to each other and to the needs of a large rural community, the result in respect to Tammy is that she was in the position of an employee during the period in question. Tammy was not in business on her own account. [10] For these reasons, the appeal is dismissed. Tammy was an employee of the Appellant, under a contract of service, in the Appellant's capacity as an agent of the Board, during the period in question. Signed at Vancouver, British Columbia, this 16th day of September, 2004. "D.W. Beaubier" Beaubier, J. CITATION: 2004TCC612 COURT FILE NO.: 2003-1311(EI) and 2003-1318(CPP) STYLE OF CAUSE: Board of Education of Red Coat Trail v. M.N.R. PLACE OF HEARING: Regina, Saskatchewan DATE OF HEARING: September 1, 2004 REASONS FOR JUDGMENT BY: The Honourable Justice Beaubier DATE OF JUDGMENT: September 16, 2004 APPEARANCES: For the Appellant: Geraldine Knudsen Counsel for the Respondent: Penny Piper COUNSEL OF RECORD: For the Appellant: Name: Firm: For the Respondent: Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada