MALONE J.A.
RYER J.A.
BETWEEN:
(MORAVIAN OF THE THAMES)
Appellant
and
GEORGINA DOREEN LOGAN, REFEREE PETER BARTON and
THE MINISTER OF HEALTH AND LONG-TERM CARE FOR ONTARIO
Respondents
Heard at Toronto, Ontario, on April 26, 2007.
Judgment delivered from the Bench at Toronto, Ontario, on April 26, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Docket: A-22-06
Citation: 2007 FCA 170
CORAM: SEXTON J.A.
MALONE J.A.
RYER J.A.
BETWEEN:
DELAWARE NATION
(MORAVIAN OF THE THAMES)
and
GEORGINA DOREEN LOGAN, REFEREE PETER BARTON and
THE MINISTER OF HEALTH AND LONG-TERM CARE FOR ONTARIO
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on April 26, 2007)
SEXTON J.A.
[1] The Appellant (“Band”) appeals from the Order of Phelan J. who dismissed the application for Judicial Review of the decision of a Referee appointed under the Canada Labour Code which decision held that the Respondent, Logan was an employee of the Appellant and entitled to $192,000.00 for overtime pay plus interest.
[2] The Band operated a Homemakers Program funded by the Ontario and Federal governments.
[3] The Respondent, under this program, provided homemaking services for her injured son from November 1987 to November 2000.
[4] In November 2000, the Province of Ontario declined to provide further funding and, as a result, the Respondent did not receive the amount of remuneration she felt she was entitled to. Consequently, she filed a complaint under the Canada Labour Code asserting that she was an employee of the Band during the relevant period and as such was entitled to receive retroactive pay.
[5] While initially her complaint was dismissed by Human Resources and Skills Development Canada, the Referee allowed the Respondent’s appeal, finding that the Respondent was an employee of the Band. The Referee considered some 28 factors in reaching this conclusion.
[6] The Motions Judge was of the view that in addressing these 28 factors, the Referee had effectively considered the appropriate factors in establishing whether a person is engaged in performing services as an independent contractor or as an employee as set forth in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue – M.N.R.), [1986] 3 F.C. 553.
[7] The Motions Judge concluded that in applying those factors, the Referee had acted reasonably.
[8] We are of the view, having examined the evidence including numerous documents of the Appellant referring to the Respondent as an employee, that the Motions Judge made no error in concluding that the decision of the Referee was reasonable.
[9] Notwithstanding the able submissions of counsel for the Appellant, we would dismiss the appeal with costs.
“J. Edgar Sexton”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-22-06
APPEAL FROM THE JUDGMENT OF THE HONOURABLE MR.JUSTICE
PHELAN, DATED DECEMBER 16, 2005 (FILE T-1089-04)
STYLE OF CAUSE: DELAWARE NATION (MORAVIAN OF THE
THAMES) v. GEORGINA DOREEN LOGAN,
REFEREE PETER BARTON and THE
MINISTER OF HEALTH AND LONG-TERM
CARE FOR ONTARIO
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 26, 2007
REASONS FOR JUDGMENT OF
THE COURT BY: (SEXTON, MALONE & RYER JJ.A.)
DELIVERED FROM THE
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
BOTHWELL,ONTARIO |
FOR THE APPELLANT
|
|
BARRISTERS & SOLICITORS SARNIA, ONTARIO |
FOR THE RESPONDENTS |