Tax Court of Canada Judgments

Date: 19980817

Dockets: 97-1511-UI; 97-169-CPP

BETWEEN:

MICHEL VINCENT HAIR STUDIO LTD.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

BRENDA K. SCHEPPAT-WAFER,

Intervenor.

Reasons for Judgment

Rip, J.T.C.C.

[1]Michel Vincent Hair Studio Ltd. ("Michel") appeals from a determination by the Minister of National Revenue ("Minister") dated January 28, 1997, that Brenda Scheppat-Wafer ("Wafer")[1] was its employee for purposes of the Canada Pension Plan ("CPP"), the Employment Insurance Act ("EI Act") and the Unemployment Insurance Act ("UI Act") from January 1, 1996 to November 9, 1996.

[2]The appellant Michel Vincent Hair Studio Ltd. is a corporation carrying on a business of a hair salon in the City of London, Ontario. The shareholders of the corporation are Vincent Rocco and Marie Rocco. The salon has 11 chairs, six of which are used for cutting and five of which are used for hair colouring and permanents. There is also a reception area at the front of the salon.

[3]Michel hires both employees and "independent contractors", as the term is used by Mr. Rocco, to work at the salon. At the time of trial the business employed five hair stylists: one employee, three independent contractors, and Mr. Rocco. Mrs. Rocco, a teacher, worked as a receptionist on a part-time basis.

[4]Mr. Rocco testified on behalf of the appellant. The appellant alleged in its Notice of Appeal that employees work regular hours that they determine and they are paid a base salary depending on the number of hours worked. However once a client base is established, the employees are paid a commission of between 45 per cent to 47 per cent of their service sales and 10 per cent of their product sales. In evidence, Mr. Rocco said employees are paid a commission of between 41 per cent to 45 per cent of service sales plus the commission on product. Independent contractors, on the other hand, are paid a commission of 60 per cent of their service sales and 10 per cent of their product sales.

[5]Mr. Rocco stated that self-employed individuals are responsible for building their own client base, determining their own hours and handling any client complaints. These individuals were not supervised and had the discretion to control the price of their services and the manner in which they performed the services.

[6]Mr. Rocco recalled that in November 1994, Michel was looking for a stylist and Ms. Wafer approached him. A meeting was set up at about 6:30 in the evening and she and Mr. Rocco met for about 45 minutes. They discussed salaries, among other things. Mr. Rocco told her he paid employees between 41 per cent and 45 per cent of their service sales and self-employed staff 60 per cent. She said, according to Mr. Rocco, that she had been self-employed before and was happy to receive 60 per cent of the service sales. Ms. Wafer agreed to work, and began to work for Michel in November 1994. At the time Michel employed two employees and one other self-employed stylist referred to as "Christina".

[7]Mr. Rocco testified that the difference between an employee and a self-employed stylist is that the employee has set hours and has to participate in Studio's promotional activities. A self-employed stylist can "come and go as she wants and can volunteer to do promotional activities, such as charity work". Also, the self-employed stylist can take one month's holiday immediately after starting work whereas an employee may not.

[8]As soon as Ms. Wafer commenced working, Mr. Rocco recalled, she took off for a few days to visit Toronto. He said she did not call in but that "we called her". In any event, he said she never "took off for a really long time". Mr. Rocco was very impressed with Ms. Wafer. She wanted to build her clientele very quickly and would arrive at work early and stay until 5:30 or 6:00 in the evening. He said he recommended her to various customers. She was in great demand, he said. Apparently whenever Ms. Wafer wanted time off, she could take off. Mr. Rocco said he did not mind.

[9]Ms. Wafer brought her own tools to the salon: combs, cutters, brushes, blow dryer, curling irons, etc. Michel did not supply tools to self-employed stylists. Later on, Mr. Rocco conceded that Michel did not supply tools to its employees either.

[10]Ms. Wafer did not require any supervision during the time she worked for Michel. Mr. Rocco described her as a superior worker who helped junior stylists who were employees. She came and went at she pleased and Mr. Rocco insisted he never reproached her with respect to her hours of work. He asked if she wished to do volunteer work on behalf of Michel and she had agreed.

[11]In the event a client had a complaint with the work performed by Ms. Wafer, Mr. Rocco said he would inform her of the complaint and ask her to attend to the matter. Mr. Rocco said he would tell the complainant that Ms. Wafer was an independent contractor and there was nothing he could do. If a customer was not happy with the service, the stylist, whether an employee or self-employed, usually would "redo" the hairdo at no cost. The self-employed stylist, however, had to pay for product. An employee did not pay for product on a "redo".

[12]Mr. Rocco produced a bundle of cheques, pay calculation slips and receipts signed by Ms. Wafer for her services. The pay calculation slips indicate the gross amounts Ms. Wafer charged during two-week periods for services and the amount of products she sold in 1996 and her commissions. The pay calculation slip also indicated the cost of product on a "redo" service. The receipts contained the words "sub-contract" and in most cases indicated the time period for which Ms. Wafer was being paid. The receipts also had a notation "IAC". The receipt was in Ms. Wafer's handwriting.

[13]The business relationship between Mr. Rocco and Ms. Wafer started well. A year later Mr. Rocco approached her to see if she wished to become a partner. According to Mr. Rocco, Ms. Wafer was "flattered". He gave her some managerial duties in preparation of her becoming a partner. He did not want to put any pressure on her or on the staff, he said. He also increased her pay to 64 per cent of her total service sales in recognition of the extra duties she was to perform. Ms. Wafer performed her managerial duties for about a year.

[14]One Saturday, Mr. Rocco went to the salon and found keys to the salon and a note from Ms. Wafer informing him that she was resigning as manager. He tried to get hold of her in Toronto. He met with her and, he said, he understood that she thought he was angry at her for coming in late at times. He said she agreed to return to work and he advised her that if she had a problem to take it to him and not to react by quitting.

[15]Mr. Rocco testified that prices at his salon were competitive with other "good salons" in London. The price list was posted in the salon. Ms. Wafer, he said, was "comfortable with the prices" when it was discussed at their first meeting. If she wanted to change her prices, according to Mr. Rocco, "it was totally up to her". She eventually increased her prices by $5.00 to $6.00.

[16]Ms. Wafer could increase or decrease prices for any particular client, said Mr. Rocco. The receptionist would collect the fee charged as indicated on a sheet that the client would give to the receptionist. A list of clients was maintained at the reception counter. The list was on computer and on Rolodex. Mr. Rocco declared that any stylist could obtain a client name from the computer.

[17]Mr. Rocco repeated that while he set hours for the employees, the self-employed stylist had discretion as to what days and what hours they wished to work. He repeated in cross-examination that Ms. Wafer was free to "come and go" as she wished. She "absolutely did not have to come in" and she "could take off as long as she wanted". Mr. Rocco indicated that he did not mind an empty chair in the salon. Mr. Rocco stated that he had "no say" if she wanted to take a month or so off from work. He remarked if people such as Ms. Wafer wanted to take time off, they probably deserve it. He stated that he "is fair with people".

[18]Ms. Wafer did not pay any rent for her chair. She received commission free and clear of all expenses.

[19]Mr. Rocco also testified that Michel had promotions approximately every three months. Stylists had options to give clients a discount. The receptionist would advise the clients which stylist was giving a discount at that particular time.

[20]Mr. Rocco indicated that a self-employed stylist could book the salon to work outside normal business hours. He conceded, however, that employees could also work before the salon opened if a good customer required her services.

[21]Both employees and self-employed stylists attended staff meetings, said Mr. Rocco. A copy of minutes of a staff meeting of March 19, 1996 was produced. One of the matters discussed at the meeting was whether the staff should wear a uniform. Mr. Rocco said this matter was put to a vote but he was not in a position to tell any self-employed stylist that he or she was not properly dressed. Among other matters discussed at the meeting included summer vacation and the need for stylists to work on Mondays. Mr. Rocco stated that vacation time was decided by the staff itself.

[22]Minutes of the staff meeting of June 5, 1996 were also produced. At this meeting there were further discussions relating to vacation and working hours. Mr. Rocco stated that decisions at meetings were guidelines and staff need not comply.

[23]Eventually there were "problems" with Ms. Wafer, Mr. Rocco stated, and "we decided she should be let go". Apparently, according to Mr. Rocco, Ms. Wafer no longer talked to him. He was worried and concerned that this was "something personal".

[24]Mrs. Rocco maintained the books at Michel, issued cheques and paid bills. She testified Michel recorded all the services on computer. The software program listed all services performed by the stylists, charges for the services of each stylist, as well as the price of the various products for sale. Every service provided by a stylist was recorded on the computer and the stylist was credited with her commissions. At the end of each week Mrs. Rocco would print out the services and charges for that week. Mrs. Rocco also indicated that each stylist had her own receipt book to record the services and charges.

[25]Mrs. Rocco declared that Ms. Wafer was "aware" from the first meeting with Mr. Rocco she was an independent contractor and not an employee.

[26]Mrs. Rocco also testified that:

a) if a stylist could not work at any particular time, the stylist would advise the receptionist that she would be away no appointment would be made during her absence, (a "self-employed" stylist would follow this procedure as well);

b) a self-employed stylist was always given the first choice for vacation because "they had more rights"; and

c) if a stylist wanted to increase prices for services, she would give six weeks notice to Michel and a new price list would be prepared.

[27]According to Mrs. Rocco, Ms. Wafer did not do any significant managing of the salon. She stated that her husband wanted Ms. Wafer to manage the salon but she could only recall Ms. Wafer taking inventory, placing some orders and helping at some staff meetings.

[28]Ms. Wafer testified that in October 1994 she replied to an advertisement for a stylist placed in a newspaper by Michel. After meeting with Mr. Rocco she was hired. She stated that at their first meeting she informed Mr. Rocco that she received 60 per cent commission working in a beauty salon in Hamilton and Mr. Rocco said he would pay the same. He told her that she would have to pay tax out of her earnings. She testified that "she never worked like that before".

[29]In the past, Ms. Wafer said, she had, on occasion, rented a chair and, in such a circumstance, considered herself carrying on her own business. She would maintain her own cash. Whatever "I made, I kept". She paid rent for the chair whether she worked or not.

[30]Mr. Rocco, according to Ms. Wafer, told Ms. Wafer that her hours would be Tuesday to Saturday. On Tuesdays, Wednesdays and Fridays, she would work from 9:00 a.m. till 5:30 p.m. and, on Thursdays from 11:30 a.m. to 7:30 p.m. and on Saturdays from 8:30 a.m. to 3:30 or 4:00 o'clock in the afternoon.

[31]Ms. Wafer declared that it is standard in the industry for stylists to provide their own tools, such as combs, brushes and dryer.

[32]Ms. Wafer has a child. She stated that if she had to leave early for some reason connected with her child, she had to "switch" hours with Christina. She stated that she was "under the impression" she was required to maintain a fixed number of hours.

[33]Ms. Wafer confirmed that Mr. Rocco asked her to become a manager. As manager she was in charge in maintaining staff hours of work. When the salon first opened on Mondays in 1996 she said she had to "book" stylists on a rotating basis. If she could not book a stylist for Monday she would fill in and take off another day. She had to be on site when neither Mr. nor Mrs. Rocco was at the salon. She was in charge of inventory and also conducted staff meetings. She also handled complaints from clients of other stylists.

[34]Ms. Wafer recalled that in the summer of 1996 Christina had booked time off to take a vacation but because Mr. Rocco wanted to go away at the same time, Christina had to change her vacation time.

[35]Ms. Wafer insisted that each stylist was assigned certain specific hours and any change required the approval of Mr. Rocco. If she took holiday, Ms. Wafer had to make sure that her holiday was not in conflict with the other stylists.

[36]Ms. Wafer testified she never received a key to the salon until she became a manager. As manager, Ms. Wafer stated, she would arrive at the salon at about 8:45 in the morning to perform inventory and other jobs. In her view she did not have the freedom to work Sundays or outside normal salon working hours. She "never felt the freedom in the salon [to work] other than at designated hours".

[37]She also said she did not realize she had the option of refusing promotional work. "We were told all staff should go ... I never felt secure to say no".

[38]Ms. Wafer asserted that she did not keep her own client file. The only information she could obtain with respect to her own clients was information relating to the colour and formula for that client's hair. "Other than that there was no way to get private information on clients".

[39]In cross-examination Ms. Wafer recalled that as a result of difficulties she had at Michel she made inquiries with the Ontario Labour Relations Board ("OLRB"). The official at the OLRB told her, she declared, that hairdressers do not qualify as independent contractors under the law. She said that she did not understand the difference between an independent contractor and an employee. In Hamilton, Ontario, she had worked as an employee and received vacation pay. At another studio she was paid 40 per cent of her service charges but in that situation, she was renting a chair. She booked her own clients, she set her own prices, determined her own hours and worked only three days a week. In that situation she considered herself an "independent". She also said she was an "independent" in another salon in Hamilton in the early 1980s.

[40]Ms. Wafer insisted that she was not privy to clients' addresses and phone numbers. She said she never asked for client information on computer and was never given a computer password to obtain this information. As far as she was concerned this was "receptionist turf".

[41]When she left Michel in November 1996 she recalled she retained ten per cent of the clients she had at Michel. She was only able to contact those clients she had access to. She, along with two other stylists at her new salon, advertised in the University of Western Ontario newspaper that she was working at a new salon.

[42]The initials "IAC" that Ms. Wafer wrote on the receipts she gave Michel on receipt of her pay cheques is an abbreviation for Interesting Artistic Cutting, a buzz word, "a name I called myself", she insisted.

[43]Ms. Wafer admitted she wrote the word "sub-contract" on the receipt of payment from Michel but, she insisted she had no idea that the reference to "sub-contract" may lead one to conclude that she was an independent contractor. She said from the first day that she started working at Michel she considered herself an employee. She was part of the staff and considered herself part of Michel's business. She said she "thought it was a new way of doing business that they not require the employer to withhold [deductions at source] ... Maybe they knew something I did not know".

[44]In preparing her income tax return for 1995, Ms. Wafer reported her earnings from Michel as income from a business and not from employment. She said she was told to prepare her tax returns in that manner by Mr. Rocco. She said it never occurred to her that she was doing anything wrong. Had she been an independent contractor, she declared, she would have been able to come and go as she wanted and would have arranged her own time and hours. In fact, she said, this was not the case.

[45]Ms. Wafer said she was terminated at Michel because Mr. Rocco wanted her to sign a contract and she refused to do so. She stated that she never heard the term "sub-contractor" before she started working at Michel.

[46]The hours of work at Michel varied from person to person, according to Ms. Wafer. In her view she did not have the flexibility to come and go as she wished; she had to maintain her fixed hours. She said she maintained regular hours although she acknowledged she would start early or end work later if a particular client requested a change. Ms. Wafer said she felt that as manager she was not free to take time off.

[47]Ms. Wafer said she resigned the position as manager in October 1996 because her clientele was increasing.

[48]Ms. Wafer acknowledged that she was asked to purchase 10 per cent of the shares of Michel about six months after starting work. Christina was also approached. Ms. Wafer said she was given details as to the amount of money required to purchase the shares.

[49]A list of manager's duties was submitted by Ms. Wafer. She said that whenever she "sat down" at work Mr. Rocco called her name to get things done as manager.

[50]Vacation, Ms. Wafer said, was never discussed with Mr. Rocco. She believed she was entitled to two weeks holiday and it "never occurred" to her that she was entitled to more than the two weeks. In her view, "three weeks is not something they would like". Mr. Rocco, she said, "had a lot of comments" concerning hours of work.

[51]Ms. Wafer declared that she dealt with any complaint made by any of her clients. However, she said she reported each complaint to Mr. Rocco, even if the client was eventually satisfied.

[52]Ms. Wafer said she participated in promotions because any promotion required the unanimous consent of the stylists for the promotion to have a chance of success.

[53]Uniforms with the salon name on it were ordered out of a book and each stylist paid for his or her own T-shirt. The individual stylist could choose the style and size. She said was free not to wear the T-shirt.

[54]Ms. Wafer stated that she did not have the freedom to set her own prices. She said prices were discussed with Mr. Rocco. Whenever the price schedule was revised all prices were changed, not only those of the self-employed stylists. She insisted that she only approached Mr. Rocco once to increase her prices and that was when she thought the salon was undercharging for her services.

[55]From time to time stylists were permitted to use an assistant in particular Mr. Rocco's assistant. Ms. Wafer stated that when she did use Mr. Rocco's assistant, she had to pay for his services.

[56]Ms. Wafer conceded that she was permitted to give discounts for her services. From time to time she would give a $5.00 gift certificate to a customer. Sometime she would cut the hair of Mr. Rocco's friends and their children and grant a 10 per cent discount. If a client sent her a new client; in such a case Ms. Wafer would give the referring client a $3.00 price reduction.

[57]Ms. Wafer stated that before she became a manager her duties were determined by Mr. and Mrs. Rocco and Mr. Rocco's assistant. When she resigned as manager in October 1996, Mr. Rocco's assistant commenced taking inventory and Mr. and Mrs. Rocco carried on the other management functions.

[58]After the evidence of Ms. Wafer was completed, counsel for Michel requested that the appeal be adjourned so that he could call rebuttal evidence. The appeal was adjourned and was continued in the City of Toronto. Mrs. Rocco appeared as witness to rebut the evidence of Ms. Wafer. Ms. Wafer who had indicated she would be able to attend at the continuation of the appeal did not appear in court in Toronto.

[59]Mrs. Rocco submitted evidence that Ms. Wafer charged different clients different prices. If Ms. Wafer wanted to give a client a gift or discount, she could do so at any time without approval of Mr. or Mrs. Rocco. Copies of gift certificates in the hand of Ms. Wafer were produced as Exhibit A-2. Mrs. Rocco stated that Michel's policy was that a self-employed stylist was free to give certificates as and when they wished. Also attached to the bundle of documents produced as Exhibit A-2 were receipts made by Ms. Wafer that include the date of the service, the client's name, the service provided and the charge. According to Mrs. Rocco the stylists had the discretion to charge less than indicated on the price list and the receipts in Exhibit A-2 confirm Mrs. Rocco's estimates that Ms. Wafer would discount 40 to 50 per cent of her price for particular clients.

[60]Mrs. Rocco also prepared notes containing information of the number of hours worked by Ms. Wafer in 1996. Mrs. Rocco said she examined Michel's records for the hours Ms. Wafer worked. The notes were produced as Exhibit A-3. The notes start at January 4, 1996 and continue until November 6, 1996. Mrs. Rocco said that Ms. Wafer never changed any day with Christina to attend her daughter's dental appointment, for example. However, Ms. Wafer did change "hours" with Christina.

[61]Mrs. Rocco stated that all self-employed stylists were permitted to work in the salon before or after closing hours. The key to the salon was left in the office and the stylists knew where the keys were located. A stylist who was an employee had to keep precise hours.

[62]There are businesses in which a grey area exists as to whether personnel performing services are employees or independent contractors. Sometimes this is

endemic to the trade. Hairdressing is such a trade and it was perhaps for this reason that the government passed section 6 of the regulations to the EI Act (section 12 of the former UI Act). Regulation 6(d) reads as follows:

6. Employment in any of the following employment, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment:

...

(d) employment of a person in a barbering or hairdressing establishment, where the person

(i) provides any of the services that are normally provided in such an establishment, and

(ii) is not the owner or operator of the establishment;

[63]People doing similar work under similar condition ought to have the same protection. Beetz, J. commented on the application of Regulation 12(e) of the UI Act with respect to taxi drivers in Martin Service Station v. M.N.R.[2]at p. 1005:

But even leaving out of account any possible intention to evade the Acts, if conditions become such that those who have a contract of employment to perform a given type of work find themselves unemployed, it is most likely that those who perform the same type of work, although they be self-employed, will also find themselves out of work because of the same conditions. It is mainly to protect the later against this risk of unavailability of work and involuntary idleness that the Acts are extended. Whether they be self-employed or employed under a contract of service, taxi drivers and bus drivers for instance are exposed to the risk of being deprived of work. This risk is, in my opinion, an insurable one, at least under a scheme of compulsory public insurance which was never expected to function on a strict actuarial basis provided it generally conformed to the nature of an insurance scheme, including protection against risk and a system of contributions.

[64]Regulation 6(d) does not offer protection to a hairdresser who in fact is carrying on his or her own business in a hairdressing establishment. This would be the case, for example, where a hairdresser pays a fixed rental fee for a chair and is required to pay his or her expenses such as business tax and liability insurance premiums, that is, the hairdresser who has all the responsibilities of an owner that most other businesses have.[3]

[65]In the reasons in Wiebe Door Services Ltd. v. M.N.R.[4], MacGuigan, J.A., at p. 5030, adopted the reasons for judgment of Cooke, J. in Market Investments Ltd. v. Minister of Social Security[5]for determining what factors a trial judge should consider in determining the question before me:

No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of consideration which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various consideration should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.

[66]In the appeals at bar, Ms. Wafer was not carrying on a business or activity independent from that of Michel. Ms. Wafer was employed in insurable employment within the meaning of subsection 5(1) of the EI Act and was employed in pensionnable employment within the meaning of subsection 6(1) of the CPP.

[67]Michel maintained control of Ms. Wafer's hours: I do not believe Mr. Rocco when he says that a "self-employed" stylist, like Ms. Wafer, was free to "come and go" as she wanted and that he did not mind if her chair was not in use. Michel earned its business income by sharing customer revenue with the stylists. An empty chair meant less income to Michel. I find it difficult to comprehend the reason Mr. Rocco did not mind an empty chair. One would assume that if a stylist was not working at a particular chair, Mr. Rocco would make sure the chair was in use by another stylist. I also do not accept Mr. Rocco's testimony that if a customer complained about Ms. Wafer's work, he would simply inform the customer Ms. Wafer was an independent contractor and there was nothing he could do. From observing Mr. Rocco during the hearing of the appeal I do not believe he would take such a cavalier attitude with a customer. My impression of Mr. Rocco is that he is a bright, aggressive and demanding person.

[68]That a person is paid solely by commission does not lead to the conclusion that person is an independent contractor. An employee may be paid by commission as well. Ms. Wafer's chance of profit depended on the number of customers she serviced. She had no chance of loss; she had no expenses save and except for the cost of equipment that all stylists incurred and were common in the trade whether a stylist was employed or not.

[69]Ms. Wafer's work was part and parcel of the business carried on by Michel. The customer's appointments were made by the receptionist. Michel retained the customer lists, including telephone numbers, and I am not convinced the stylists had access to client information.

[70]Ms. Wafer's additional duties as manager working under the direction of Mr. Rocco also is an indication that she was employed by Michel.

[71]I should add that I do not accept all of Ms. Wafer's evidence. I do not believe, for example, that she did not know the difference between an independent contractor and employee or that she had no idea what the words "sub-contractor" meant on the receipts she made out to Michel. Neither Mr. Rocco nor Ms. Wafer were paragons of truth but, on balance, Ms. Wafer's evidence on basic matters appears more credible to me than does Mr. Rocco's.

[72]Ms. Wafer was engaged in Michel's business and was an employee of Michel.

[73]The appeals are dismissed and the determinations of the question by the Minister are affirmed.

Signed at Ottawa, Canada, this 17th day of August 1998.

"Gerald J. Rip"

J.T.C.C.

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