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Docket: 2005-2203(EI) |
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BETWEEN: |
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ACHILLES FOOT CLINIC LTD., |
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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
FRAOCH HEATHER WARDEN, Intervenor. |
_______________________________________________________________
Appeal heard on common evidence with the appeal of
Achilles Foot Clinic Ltd. (2005-3132(CPP) on June 2 and June 26, 2006
at Winnipeg, Manitoba
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Before: The Honourable Justice Diane Campbell |
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Appearances: |
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Agent for the Appellant: |
Stephen Waller |
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Counsel for the Respondent: For the Intervenor: |
Julien Bédard The Intervenor herself |
_______________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Fredericton, New Brunswick, this 11th day of August 2006.
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"Diane Campbell" |
Campbell J.
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Docket: 2005-3132(CPP) |
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BETWEEN: |
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ACHILLES FOOT CLINIC LTD., |
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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
FRAOCH HEATHER WARDEN, Intervenor. |
_______________________________________________________________
Appeal heard on common evidence with the appeal of
Achilles Foot Clinic Ltd. (2005-2203(EI) on June 2 and June 26, 2006
at Winnipeg, Manitoba
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Before: The Honourable Justice Diane Campbell |
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Appearances: |
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Agent for the Appellant: |
Stephen Waller |
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Counsel for the Respondent: For the Intervenor: |
Julien Bédard The Intervenor herself |
_______________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Fredericton, New Brunswick, this 11th day of August 2006.
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"Diane Campbell" |
Campbell J.
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Citation: 2006TCC431 Date: 20060811 |
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Dockets: 2005-2203(EI) 2005-3132(CPP) |
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BETWEEN: |
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ACHILLES FOOT CLINIC LTD., |
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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
FRAOCH HEATHER WARDEN, Intervenor. |
REASONS FOR JUDGMENT
CampbellJ.
[1] Both of these appeals were heard together on common evidence and arise as a result of rulings by the Minister of National Revenue (the "Minister") that the Worker/Intervenor was employed in insurable employment pursuant to subsection 5(1)(a) of the Employment Insurance Act and pensionable employment pursuant to subsection 6(1)(a) of the Canada Pension Plan. The period under appeal is January 1, 2003 to March 12, 2004.
[2] The issue is whether the Minister made the correct determinations in respect to the Worker.
[3] I heard evidence from Stephen Waller, the Manager and President of the podiatry clinic, as well as Natalie Rodriguez, receptionist at the clinic and Heather Warden (formerly Froach Heather Shepherd), the Worker and Intervenor in these appeals. The assumptions of fact relied upon by the Minister total 51 and are as follows:
(a) The Appellant operated a podiatry business;
(b) the Appellant operated out of a foot clinic (hereinafter "the Clinic");
(c) the Appellant advertised and obtained the clients (hereinafter "the Clients");
(d) the Worker was hired as a podiatrist and her duties included foot treatment, nail surgery, manufacturing orthotics and some receptionist duties;
(e) the Appellant originally hired the Worker for an indefinite period of time;
(f) the Appellant and the Worker did not enter into a written contract;
(g) the Worker provided her services to the Appellant's existing Clients and walk-in patients;
(h) the Worker performed the majority of her services at the Appellant's premises (the Clinic);
(i) the Worker also did house calls at the Clients' premises;
(j) the Worker was paid solely by commissions;
(k) the Worker earned set commission rates as follows:
50% of fees for office appointments
70% of fees for house calls
17% of fees for orthotics
(l) the Appellant determined the Worker's wage rates;
(m) the Appellant determined the rates charged to the Clients;
(n) the Appellant paid the Worker on a monthly basis;
(o) the Worker did not bid for work;
(p) the Appellant controlled all Client fees;
(q) the Appellant calculated the Worker's earnings and prepared an invoice for the Worker;
(r) the Appellant's normal office hours were as follows:
Monday to Friday 9:00AM to 5:00PM
Saturday 9:00AM to 1:00PM
(s) the Worker worked full-time for the Appellant;
(t) the Worker normally worked the following hours:
Monday, Tuesday 9:00AM/10:00AM to 5:00PM/6:00PM
Wednesday Noon to 7:00PM
Thursday, Friday 9:00AM/10:00AM to 5:00PM/6:00PM
(u) the Appellant determined the Worker's hours and days of work;
(v) the Worker's hours were dependent on the Clients' appointments;
(w) the Appellant provided a receptionist who handled Client appointment bookings;
(x) the Appellant retained the right to control the Worker;
(y) the Worker was hired for her experience and expertise;
(z) the Worker was not supervised because she was a professional;
(aa) the Worker was required to report to the Clinic;
(bb) the Appellant assigned Clients to the Worker;
(cc) the Appellant also assigned walk-in patients to the Worker;
(dd) the Appellant monitored the Worker's performance through Clients' response;
(ee) the Worker covered other doctor's patients when the doctor was unavailable;
(ff) the Worker represented the Appellant while performing her services;
(gg) the Worker's name was listed on the Clinic door and in the Appellant's advertising;
(hh) the Clients were the Appellant's;
(ii) the Clients' records belonged to the Appellant;
(jj) the Worker did not work for others while performing services for the Appellant;
(kk) the Worker did not solicit her own clients;
(ll) the Worker could not hire her own helpers or replace herself;
(mm) the Worker was not free to come and go as she please when appointments were booked;
(nn) the Appellant provided all of the tools and equipment required including a furnished work location, support staff and orthotics manufacturing equipment;
(oo) the Worker provided her own vehicle;
(pp) the Worker did not have a capital investment in the business;
(qq) the Appellant paid all operating expenses of the Clinic;
(rr) the Appellant provided all of the materials and supplies required;
(ss) the Worker incurred expenses for her own vehicle, podiatrist license and liability insurance;
(tt) the Worker did not rent tools or equipment from the Appellant nor did she pay for receptionist services;
(uu) the Worker did not have a chance of profit or risk of loss;
(vv) the Worker did not have her own business name;
(ww) the Worker was not operating her own business while performing services for the Appellant;
(xx) the Appellant originally agreed to provide employment for the Worker in conjunction with her immigration from Britain to Canada, and
(yy) a condition of the Worker coming to Canada was that she would have full-time employment.
The Evidence of Stephen Waller:
[4] The Appellant has been involved in the podiatry business since 1989 and operates a foot clinic in Winnipeg. The Worker is a doctor and worked at the clinic as a podiatrist. She replaced a self-employed practitioner who had been at the clinic for eight years at which time she left to go on maternity leave. The Worker took over the existing patients of this predecessor. According to Mr. Waller, the Worker was an independent contractor who was free to conduct her practice in any manner she deemed fit. There was no written contract between the parties.
[5] Mr. Waller testified that the Worker chose the hours that she worked at the clinic. He stated that she scheduled holidays when she wanted to take them and in her first year at the clinic she took seven weeks of vacation time, including a holiday in Mexico soon after the commencement of her work relationship at the clinic. He introduced the Worker's 2003 and 2004 appointment books (Exhibits A-1 and A-2) to illustrate the amount of flexibility and control that the Worker had over her hours of work. Some of the directives to office staff contained in these books, which according to Mr. Waller are in the Worker's handwriting, show that she was instructing staff on times to book patients and periods where she wanted to book time off. He also contends that these books show that, contrary to the Worker's claim, the clinic was not closed for two weeks during the Christmas holiday period and those weeks were therefore not part of a mandatory office closure for holidays as the Worker contended. In addition he stated that the Worker often booked time off without checking with anyone at the clinic, although the Worker claims to have worked daily from nine to five, except Wednesdays when she worked from noon to seven in the evening. Mr. Waller argued that these records show that she worked only when patients were booked and left the clinic when the last patient left.
[6] Mr. Waller testified that the Worker referred patients to outside businesses for purchase of products which were unavailable at the clinic. She also used a product on patients called bag balm which the clinic did not carry. Mr. Waller's evidence was that she controlled the sale of products and that she had an arrangement with the Running Room and sold its insoles and orthotics from the clinic. In addition she displayed brochures for shoes that the clinic did not sell as well as business cards of outside professionals. According to Mr. Waller, this showed she was not required to sell the Achilles' products and that she used outside sources as a referral basis.
[7] Some of the equipment and tools necessary for her work was provided by the Worker, according to Mr. Waller, while some tools were supplied by the clinic. She decorated her office. She used her own vehicle and gas to attend house calls. She also paid for her own educational upgrading courses, licensing costs and liability insurance. Although participation was offered in the clinic's existing medical plan, she opted out of this plan. She also changed her business cards and attempted to build her own practice by doing her own advertising. Any control over the Worker was the result of the regulatory conditions imposed by the College of Podiatrists. She was assigned patients only to accommodate them respecting times and dates. She refused to allow anyone else at the clinic to treat her patients. The clinic did not monitor the Worker's performance but did occasionally obtain patient comments concerning all doctors. According to Mr. Waller, the Worker was not represented to the public as being part of the clinic but was representing herself. She could work for someone else in addition to her work at the clinic and she could hire someone to assist her at the clinic.
[8] The Worker's arrangement with the clinic was that she would receive 50% of the price paid by patients for clinic visits, 70% of the price paid for house calls and 17% of amounts received for orthotics. At the end of the month, totals were tallied and a gross amount was paid to the Worker by cheque. No amounts were withheld. She was not receiving commissions but instead the Worker paid her share of clinic overhead and receptionist duties by paying to the clinic a part of the revenue which she earned. The Worker's total revenue was paid directly to the clinic by the patients at the Worker's request except the fees for house calls which she collected directly from the patients. Mr. Waller speculated that the Worker may have requested the clinic to collect payment in this manner because the clinic was equipped for handling debit and credit cards. Patients were not taken from her as she claimed but her patients decreased over time because of her lack of availability.
[9] In addressing the assumptions, Mr. Waller disagreed with the use of the word "commissions" in (j) and (k), as the percentage of fees that the clinic was paid was the Worker's contribution to overhead. He clarified (g) by pointing out that the existing patients belonged to the Worker's predecessor. He disagreed with (l) because the percentage rates were determined by mutual agreement. He clarified assumption (m) and stated that it was the College of Podiatrists, not the clinic, that determined the rates charged to patients. He disagreed that the clinic controlled patient fees as stated in assumption (p) and testified that the College controlled these fees and the Worker charged those fees. He disagreed with (q) because generally it was the Worker who calculated her own earnings. He disagreed with (r), (s) and (t) as the Worker did not have normal office hours but her hours revolved around her own patient bookings. He disagreed with (u) and (x) because the Worker determined her hours and the only control over her was exercised by the College's regulations and not the Appellant. In respect to (aa) he stated that the Worker was not prevented from working elsewhere. He disagreed with (bb) because the Worker was working from an existing list of patients belonging to her predecessor. The only patients assigned to the Worker were those wanting a particular time which coincided with the Worker's availability or where the Worker was specifically requested. The clinic generally did not monitor the Worker's performance (dd) as patients were not approached as they left the clinic. He disagreed with (ff) stating that the Worker represented herself and the profession to patients and she was not representing the clinic. In respect to (hh) and (ii), patient records belong to the patients and not the Appellant or the Worker. When the Worker left the clinic, she took some patient records which the clinic eventually retrieved. He disagreed with (jj) and stated that the Worker could work for others while she was working at the clinic and that contrary to what is stated in (kk) she did solicit her own patients through outside contacts. In respect to (ll), the Worker would be able to hire replacements. Although this issue never actually arose, when she took maternity leave, she requested that she not be replaced by anyone. In theory the Worker was free to come and go as she pleased (mm) but professionally she would not walk out on a patient. He maintained that she provided some of her own equipment, decorated her office, used her car and gas and displayed brochures and business cards of others at her office in the clinic. In respect to (qq) and (tt), the Worker paid a share of office expenses including receptionist duties through the revenue sharing arrangement. He also disagreed with (uu) and stated that the Worker determined her profit by the number of patients she saw. If she had been sued, she would be sued personally as she carried her own insurance. In respect to (vv) the Worker did operate under her own business name. He disagreed with (xx) and stated that the Appellant did not bring the Worker from England to work for the clinic as she was already living in Winnipeg working for another clinic when she commenced her relationship with the Appellant clinic.
[10] On cross-examination Mr. Waller, in referring to the questionnaire (Exhibit R-1), stated that the Worker's predecessor accommodated those patients who could not come into the clinic during regular office hours by seeing them on Wednesday evenings. The Worker continued these evening hours on Wednesday. The Worker submitted an invoice to the clinic for payment of her percentage on revenue which she billed. As patients paid their invoices the clinic paid the Worker at the end of each month, retaining the percentage portion that went toward her share of office expenses. With respect to question 20, page 6 of the questionnaire, Mr. Waller stated that he did not interpret the term "materials" to include small tools that the Worker brought to the clinic. He clarified question 30, page 7 by stating that the Worker gave no notice when she left the clinic although he would have liked notice. However he did not feel the Worker would be required to give notice where there was no written contract and she was not an employee.
The Evidence of Natalie Rodriguez
[11] Ms. Rodriguez has been the receptionist at the clinic since May 2003. She testified that patients generally call to book an appointment and if they indicate which doctor they want to see, she complies if that doctor is available. If they are new patients, they are booked with the doctor that is available. Generally there were very few walk-in patients. She indicated that the Worker had a diary and she tracked her own appointments and advised the receptionist respecting the days she had decided to book off. The Worker informed only the receptionist of time booked off. According to Ms. Rodriguez, the Worker did not remain at the clinic until it closed but stayed only until she had finished with her last patient. When patients called the clinic requesting home visits, she would inform the Worker and it was the Worker who gave her a date and time for the appointment. She could not book a patient without checking first with the Worker. Occasionally the Worker refused the appointment and referred the patient to an outside clinic. Ms. Rodriguez also stated that sometimes the Worker changed scheduled patient appointments. She did not recall any occasion where patients were taken from the Worker. The Worker recommended products not carried by the clinic. She recalled ordering supplies at the request of the Worker but never checked with anyone else at the clinic for permission before going ahead with the order. She also stated that she assisted the Worker in changing the logo on her existing business cards. Ms. Rodriguez testified that, although the Worker prepared the patient card invoices (Exhibit A-5), she was familiar with these records as they reflected the information in the clinic's books. Ms. Rodriguez agreed that she prepared the patient totals (Exhibit A-7) respecting January to May of 2003 from totals which a former receptionist entered and that some of the totals were entered in pencil not pen. However she stated that she would know if totals had been altered.
[12] On cross-examination by Respondent counsel, Ms. Rodriguez agreed that some of the handwriting in Exhibit A-5 did not appear to be that of the Worker. She also confirmed that she recorded patient payments so that the clinic could pay the Worker at the end of the month.
The Evidence of Dr. Heather Warden (the Worker)
[13] According to the Worker's evidence, she requested a written contract when she commenced work at the clinic but was refused. She worked previously at another clinic as an employee and left that clinic after twenty months to work at the Appellant's clinic. She stated that she required an offer of employment in order to obtain a Canadian work visa (Exhibit R-10) and that this visa was essential to enable her to work at the clinic. She stated that the Department of Immigration also required a letter (Exhibit R-9) from the clinic confirming the employment. She testified that she accompanied Stephen Waller on two separate occasions to the office of her Member of Parliament to obtain assistance in moving the visa process along quickly. She married in 2002 and did not want the immigration process impaired by working for the clinic prior to obtaining the work visa. Mr. Waller denied making these visits. When she started her work at the clinic she testified that she believed she was working as an employee as she had done at the previous clinic where she worked. Problems arose in February 2004 when she requested a T4 and was told by Mr. Waller that she was not working in the capacity of employee. After meeting with several HRDC staff and receiving unsatisfactory responses, she simply let the matter go.
[14] Dr. Warden compared her prior work at a Canadian clinic where she was an employee to the work she performed at the Achilles clinic. At both clinics she had the same duties and responsibilities, similar patients, all tools and equipment were supplied by the clinics, she made home visits, and paid her own insurance and licensing fees. The clinic where she was previously employed paid her fifty percent of the fees she billed to patients, which she stated was standard in the profession. However she received T4s from her former clinic but none were provided by the Appellant.
[15] The clinic received all of the fees she billed and reimbursed her a percentage monthly. The clinic provided the debit and credit options for patients to pay. Appointments were arranged primarily by the receptionist based on the patient requirements but were not scheduled around her availability. She also stated that she did not take all of the vacation periods which Mr. Waller suggested she took. Some days which were attributed to holidays were provided to her at Dr. Redband's suggestions on days where she had only one or two appointments which Dr. Redband dealt with. She also disagreed that she gave no notice for holidays taken, stating that she informed either Mr. Waller or Dr. Redband.
[16] Dr. Warden clarified the following assumptions of facts:
(f) she stated that she requested a contract at the outset and was refused;
(h) the work performed at the clinic was under the direction of the Appellant, using the clinic's equipment and products with patient appointments booked by Natalie Rodriguez;
(m) she clarified Mr. Waller's evidence respecting this assumption by stating that the Podiatry Society set guidelines but that it was the Appellant that established the actual rates charged;
(q) Dr. Warden never prepared patient invoices and she stated that Exhibit A-5 (patient invoices) was not in her handwriting;
(v) initially the hours she worked were dependent upon patient appointments but as the work relationship deteriorated, Mr. Waller requested that she stay at the clinic after her last patient left to look after walk-ins;
(x) she stated that Mr. Waller threatened the employment of both she and Natalie Rodriguez;
(aa) she stated that she volunteered information about patients and in addition Mr. Waller monitored patients for feedback;
(cc) she indicated Mr. Waller contradicted himself on this point when he initially stated there were no walk-ins and then stated that there were a few;
(ee) she did cover for Dr. Redband when she was unable to work at different times due to injuries;
(ff) she promoted the clinic in dealing with patients and her business cards and patient sheets displayed the name of the Appellant;
(ii) she did not remove patient records as she knew they belonged to patients and returned a few records which were in her possession at the time she left the clinic;
(ll) when she left on maternity leave she offered names of individuals who could replace her;
(nn) and (rr) the clinic provided all tools and supplies as she never owned any;
(oo) she provided her own vehicle as she had done in her prior employment;
(qq) she stated Mr. Waller looked after all clinic expenses;
(ss) she also paid for these items in her prior employment where the clinic hired her as an employee;
(vv) she has no registered business name and never operated under her own name.
[17] In clarifying each of the patient invoices at Exhibit A-8, Dr. Warden stated that she advised patients to obtain the product "Super Feel" from outside sources when they could not afford the products which the clinic sold. She also stated that some of the notations concerning patient referrals to outside sources were not in her handwriting and that she never made the referrals noted there.
[18] On cross-examination by Mr. Waller, Dr. Warden stated that she was unaware that her predecessor worked at the clinic as an independent contractor. She confirmed that she paid her own annual fees of $1,500.00 yearly and her own liability insurance in the approximate amount of $1,000.00 yearly. The Appellant offered her an office health plan including disability which she declined because she was covered by her husband's plan. She confirmed that she received her agreed percentage of patient fees only when the patient paid an invoice and that if a patient did not pay she presumed she would also suffer a loss. She confirmed that she displayed brochures on at least one outside product and also pamphlets of a massage therapist who made referrals to her. She agreed that if those patients came to the clinic, she would profit from the percentage split. She confirmed that she earned approximately $55,000.00 yearly with salary and bonuses at her prior employment which was subject to various deductions including premiums for employment insurance and Canada pension. At the Appellant's clinic she received approximately $55,000.00 in 2003 as a result of the percentage split but no deductions were taken. She testified she was not concerned that no deductions were taken because Mr. Waller had advised her that he would "care take of it". She also stated on cross-examination that the clinic exercised control over her by instructing the receptionist which patients she would receive and on which dates. Although Dr. Warden claimed patients were removed from her list in June 2003, she confirmed that her percentage split was the highest in June in comparison to the prior or subsequent months in 2003. Dr. Warden also testified that the Appellant controlled the patients she received by taking control over referring them to an appropriate doctor. She agreed, however, that if appointments were too far out of the City, and she did not want to drive there, she could refer those patients to a completely different clinic. She agreed that if a patient requested an appointment at a particular time, she had the right to offer an alternate time more suited to her time frame.
[19] On cross-examination by Respondent counsel, Dr. Warden stated that she did file her returns for the 2003 taxation year as a self-employed individual using her gross business income and applying a few deductions respecting insurance and fees to colleges. She filed in this manner because she felt she had no other option and she had been refused a T4 slip. She also clarified her earlier evidence respecting her fear of deportation with her work visa and stated she was not actually fearful of being deported as her husband was sponsoring her. She simply wanted to do things properly. In respect to her hours worked at the clinic, she testified that she either checked with Mr. Waller or Dr. Redband and then marked the hours in the clinic's diary. She would later inform the receptionist. However she did state that if she booked herself off, she was always allowed to take that time.
Analysis
[20] In determining whether the Worker is an independent contractor or an employee of the Appellant, I must consider and review the facts in these appeals in light of the four-in-one test enunciated in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.). The four factors are control, tools, chance of profit and risk of loss. The factor of integration has been relegated to a position of lesser importance in the case law of recent years. This factor is sometimes incorporated into the question which is asked at the end of a discussion of all the facts of a case within the other factors. That question is: Whose business is it - the Appellant's or the Worker's? There is no one conclusive test to be applied and often in making a determination one or more factors may be neutral while the remaining factors in light of the evidence adduced may carry most of the weight in the final conclusion. The total relationship of the parties must always be considered although the factors may be discussed separately in reviewing the evidence. In recent cases, the Courts have moved in the direction of also looking at the intent of the parties (The Royal Winnipeg Ballet v. M.N.R., 2006 F.C.A. 87). However I do not believe that canvassing the issue of intent would assist here as the evidence of the parties indicates that there was no meeting of minds in this respect from the outset.
Control
[21] According to Mr. Waller's evidence, the Worker chose her own hours that she worked at the clinic and looked after her own appointments. In addition she scheduled her holidays without consulting with anyone and in her first year took seven weeks of holidays. Dr. Warden's evidence was exactly the opposite. She stated that the receptionist booked all of her appointments based on patient requirements. She also stated that she gave notice of her holidays to either Dr. Redband or Mr. Waller and that she did not take the number of holidays suggested by Mr. Waller. However Natalie Rodriguez, the receptionist, testified that Dr. Warden maintained her own diary and tracked her own appointments. When patients called in they were booked with the doctor that they requested. She also testified that the Worker informed only the receptionist when she booked vacation time. In addition Ms. Rodriguez confirmed Mr. Waller's testimony that the Worker left the clinic each day as soon as her last patient left. She also stated that the Worker would sometimes change her own scheduled appointments. Ms. Rodriguez also confirmed Mr. Waller's evidence that the Worker recommended products to her patients not carried by the clinic. In fact the Worker did agree that she was free to display brochures of outside products. Ms. Rodriguez also recalled ordering supplies at the Worker's request without checking with anyone else at the clinic. Although the Worker testified the Appellant controlled the patients she received by referring them to the appropriate doctor, she did agree that if a patient requested a particular time for an appointment that did not suit the Worker, she was free to change that time. She also admitted that she was free to decline patient house calls if it meant driving too far out of the City and that she was free to refer them to another clinic. Mr. Waller and the Worker gave conflicting evidence on many of the other facts respecting business cards, patient records and the Worker's work visa. The receptionist, however, did again corroborate Mr. Waller's evidence that the Worker had her own business cards when she came to the clinic and that the receptionist helped her change the logo on the cards. Although the Worker's evidence was that her cards contained the clinic's name, I do not think this would be unusual as she would have to identify her work location for her patients. She did her own advertising, paid her own licensing fees and was free to opt out of the clinic's medical plan. She also paid her own liability insurance. Although there was a great deal of contradictory evidence between the parties, the receptionist did confirm much of Mr. Waller's evidence and her testimony withstood cross-examination. In addition, some of the other factors of payment of licensing fees, insurance and advertising point to a lack of control over the Worker by the Appellant. I also have her own admissions that she was free to re-schedule appointments to suit her own needs and that she was free to decline patient home appointments while referring them to other clinics. The appointment book also confirms that the Worker had freedom in directing staff on booking her appointments. My conclusion is that this factor of control is certainly weighted in favour of the Worker being an independent contractor.
Tools
[22] Mr. Waller's evidence was that the Worker provided her own vehicle and gas for home visits to patients. The Worker agreed on this point but disagreed with Mr. Waller's evidence that she provided some of her own equipment that she used at the clinic. Her evidence was that the clinic provided all her tools and supplies. Again I have conflicting evidence, although in most employer/employee relationships, an employee would expect some type of reimbursement for gas used in visiting patients outside the clinic. It would also appear from the evidence that a percentage of what the clinic retained from the Worker's billings covered the use of supplies, so indirectly she may have paid for the supplies and products, either consumed or used in her work. The receptionist also confirmed that the Worker was free to order supplies without obtaining permission from anyone at the office. My analysis of this factor points ever so slightly but again toward the Worker being engaged as an independent contractor.
Chance of Profit
[23] Mr. Waller's evidence was that the Worker insisted that her patients make payment to the clinic. He surmised that she chose to do this because the clinic could facilitate payment by debit and credit cards. Each month the Worker was paid the agreed percentage split by cheque depending on the number of patients she saw that month. It appears that she was free to schedule as many or as few appointments as she chose and that she was free to determine how many holiday periods she would take. All of this would naturally affect the amount of profit that the Worker could expect in any month. This again shows the degree of control the Worker would have over her own profit flow. The evidence also suggests that the Worker received some referrals from outside contacts such as therapists and that she may have profited from the sale of some of her own products. The Worker also testified that if a patient did not pay immediately she would have to wait for the money. There was also some evidence that she submitted invoices to the clinic for payment of her share of revenue. Again, this factor points to the Worker being an independent contractor.
Risk of Loss
[24] There was not much evidence on this factor and it did not appear that the Worker was exposed to a risk of loss to any great degree, except that if a patient did not come in for the appointment then she simply received no money. This remains more of a neutral factor and it is overshadowed by the evidence and my conclusions respecting the other three factors.
Conclusion
[25] My analysis of the Wiebe Door factors, in light of the evidence adduced, points to the Worker being an independent contractor and not an employee. In addition, the Worker continued her engagement with the clinic for the entire period while receiving her percentage of patient fees billed but from which no deductions were taken. The Worker is an educated woman who worked at a former podiatry clinic as an employee where deductions were taken. I am unable to reconcile all of this with her evidence that she thought she was an employee while fully aware that no deductions were being taken. When I view the total relationship of the parties and ask whether it was the Appellant's business or the Worker's, I must conclude that it was the Worker's business operating out of the premises of the Appellant clinic.
[26] At the outset of these appeals, the Respondent counsel advised me that the Minister was no longer taking a position in respect to whether the Worker was an employee or independent worker. He advised me that he was following CRA policy in circumstances where he concluded both parties have equally compelling evidence. I would be most surprised if this is CRA policy. Aside from the fact that this attitude by counsel representing the Deputy Attorney General of Canada is questionable, I would point out to the Department the untenable position this imposed on the Worker/Intervener in circumstances where she was unrepresented by legal counsel and had placed some reliance upon Respondent counsel to advocate her position in light of the ruling which the Minister made. It is my belief that once there is an appeal from the Minister's ruling, the Respondent is placed in a position of either advocating the correctness of the ruling or to consent to judgment. The Respondent cannot simply decide to remain neutral and let the appellant and the intervener debate the issue.
[27] The appeals are allowed and the decisions of the Minister are vacated.
Signed at Fredericton, New Brunswick, this 11th day of August 2006.
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"Diane Campbell" |
Campbell J.
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CITATION: |
2006TCC431 |
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COURT FILE NO.: |
2005-2203(EI) and 2005-3132(CPP) |
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STYLE OF CAUSE: |
Achilles Foot Clinic Ltd. and The Minister of National Revenue and Froach Heather Warden |
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PLACE OF HEARING |
Winnipeg, Manitoba |
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DATES OF HEARING |
June 2, and June 26, 2006 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Diane Campbell |
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DATE OF JUDGMENT |
August 11, 2006 |
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APPEARANCES: |
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Agent for the Appellant: |
Stephen Waller |
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Counsel for the Respondent:
For the Intervenor: |
Julien Bédard
The Intervenor herself |
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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: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |