Date: 20000926
Dockets: 2000-1007-EI, 2000-1010-CPP
BETWEEN:
BRYAN H. SHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KRYSTYNA SOZANSKA,
Intervenor.
Reasons for Judgment
WEISMAN, D.J.T.C.C.
[1] The Intervenor is a massage therapist. From July 15, 1997 to November 27, 1998 she was engaged by the Appellant in his chiropractic and physiotherapy clinic on Bloor Street in the City of Toronto (the "clinic"). The question before the Court is whether she was then in insurable and pensionable employment within the meaning of paragraph 5(1)(a) of the Employment Insurance Act[1] and paragraph 6(1)(a) of the Canada Pension Plan[2].
[2] The Appellant's position is that the Intervenor was an independent contractor engaged under an oral contract for services. She received 60 percent of the amounts she invoiced the clinic, 40 percent thereof being deducted for her use of the clinic's therapy rooms, reception desk, telephone and fax facilities. She was encouraged to build up her clientele and develop her practice. She was also free to ply her trade elsewhere. She in fact did so, spending one day per week treating patients at the Manufacturer's Life Insurance Company, where she retained 100 percent of her billings. G.S.T. was duly paid on her services for the clinic, no source deductions were made from her remuneration, and no T4 form issued for income tax purposes. According to the Appellant, minimal control was exercised over her daily activities; she could provide her own tools; and had a chance of profit as her earnings varied with the number of patients she treated. She also had a risk of loss since she bore her own expenses for liability insurance, continuing education, and association fees.
[3] The Intervenor painted a different picture. At the commencement of her employment she was provided with, and directed to follow, an eight page Office Policy Manual that controlled all aspects of her daily duties from hours of attendance, to treatment procedures, to food and dress requirements. The patients were the Appellant's patients. He established the fee schedule and collected the revenues. The clinic was completely equipped with all the necessary tools including tables, oils, sheets, pillows, towels, and CD players. When not treating patients, she was expected to access the clinic's computer and canvas the clinic's prior patients for recall appointments. She was also required to launder the clinic's linen. Since the patients belonged to the clinic, and she had few expenses in connection with her duties there, she had no chance of profit or risk of loss. She maintained that while she was an independent contractor in her work with the Manufacturer's Life Insurance Company, she was employed by the Appellant.
[4] The evidence in this matter must be subjected to the four-in-one test laid down in Wiebe Door Services v. M.N.R.[3]. The total relationship between the parties and the combined force of the whole scheme of operations must be considered.
Control
[5] Fernie Carvalho, a chiropractic assistant at the clinic, testified on behalf of the Appellant. Julia Notto, an instructor of Pilates and Yoga at the clinic testified for the Respondent. Both confirmed the Intervenor's position that the clinic's Office Policy Manual had to be adhered to.
[6] In my view, the extensive controls enumerated in this Manual together with the added patient recall and laundry duties, placed the Intervenor in a position of subordination that is more consistent with her being an employee than an independent contractor.
Tools
[7] The evidence is clear that the clinic was fully equipped with all the tools required for the Intervenor to perform her services. While the various therapists were free to bring their own tools, and some in fact did so, the tools factor tends to indicate that the Intervenor was an employee.
Profit and loss
[8] The patients whom the Intervenor treated at the clinic were the patients of the clinic. Their payments went directly to the Appellant who bore all the risk of bad debts. While the Intervenor's earnings varied with the number of patients she treated, this does not constitute a chance of profit[4]. The Appellant testified that the Intervenor had to perform her services personally. She was not permitted to bring in an outsider to do her work at a lower rate of remuneration than she was assured. She accordingly had no chance of profit in this regard. She also had no risk of loss in connection with her work at the clinic since her only expenses were her association fees and liability insurance. This factor tends to indicate that the Intervenor was an employee.
Integration
[9] The Intervenor was committed to spending four days per week working at the Appellant's clinic. While she did do massage therapy as an independent contractor in her free time, I find that she integrated her function into the Appellant's business. This factor indicates that she was an employee.
[10] The four-in-one test establishes that the Intervenor was an employee of the Appellant. While the Appellant asserts to the contrary, his credibility was impaired. All the therapists who testified refuted his assertion that the Office Policy Manual was never in use at the clinic. Only upon cross-examination was it revealed that the Appellant bore the entire risk of bad debts. This confirms that the patients were his patients, the business his business. He was also an evasive witness. When asked if he requested the Intervenor to do the laundry he replied: "I may have". When pressed for an answer he admitted: "Okay, yes".
[11] I find that the Appellant has failed to discharge the burden of proof in this matter[5]. The Intervenor was an employee of the Appellant under a contract of service during the period in question, and was therefore in insurable and pensionable employment.
[12] The appeals are dismissed and the decisions of the Minister are confirmed.
Signed at Toronto, Ontario, this 26th day of September 2000.
"N. Weisman"
D.J.T.C.C.
COURT FILE NO.: 2000-1007(EI)
STYLE OF CAUSE: Bryan H. Sher and M.N.R. and
Krystyna Sozanska
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge N. Weisman
DATE OF JUDGMENT: September 26, 2000
APPEARANCES:
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the Respondent: Lesley King
For the Intervenor: The Intervenor herself
COUNSEL OF RECORD:
For the Appellant:
Name: Lawrence A. Wolfman
Firm: Kerr, Oster & Wolfman
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
Name:
Firm: COURT FILE NO.: 2000-1010(CPP)
STYLE OF CAUSE: Bryan H. Sher and M.N.R. and
Krystyna Sozanska
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge N. Weisman
DATE OF JUDGMENT: September 26, 2000
APPEARANCES:
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the Respondent: Lesley King
For the Intervenor: The Intervenor herself
COUNSEL OF RECORD:
For the Appellant:
Name: Lawrence A. Wolfman
Firm: Kerr, Oster & Wolfman
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
Name:
Firm:
2000-1007(EI)
BETWEEN:
BRYAN H. SHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KRYSTYNA SOZANSKA,
Intervenor.
Appeal heard on common evidence with the appeal of Bryan H. Sher (2000-1010(CPP)) on August 29, 2000 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the Respondent: Lesley King
For the Intervenor: 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 Toronto, Ontario, this 26th day of September 2000.
|
"N. Weisman" |
D.J.T.C.C.
2000-1010(CPP)
BETWEEN:
BRYAN H. SHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KRYSTYNA SOZANSKA,
Intervenor.
Appeal heard on common evidence with the appeal of Bryan H. Sher (2000-1007(EI)) on August 29, 2000 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the Appellant: Lawrence A. Wolfman
Counsel for the Respondent: Lesley King
For the Intervenor: 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 Toronto, Ontario, this 26th day of September 2000.
|
"N. Weisman" |
D.J.T.C.C.