http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/120695/index.do
Quinte Children’s Homes Inc. v. M.N.R. (October 26, 2015 – 2015 TCC 250, Graham J.).
Précis: Quinte Children’s Children’s Homes Inc. placed children in foster homes and paid child and youth workers who worked with those children. The sole issue in these appeals was whether one of the workers, Ms. Fobear, was an employee for EI and CPP purposes. The Tax Court held that she was not, relying principally on the lack of evidence of control.
Decision: This decision turned on whether a Ms. Fobear, a child and youth worker paid by the appellant, was an employee:
[1] Quinte Children’s Homes Inc. (“QCH”) provides foster care and treatment for children. QCH does so by placing children in one of the 35 foster care homes that it manages. QCH receives compensation for its services from the Ontario Ministry of Community and Social Services (the “Provincial Ministry”). Under QCH’s agreement with the Provincial Ministry, each foster child is allocated a certain number of hours of support services each week as part of the treatment plan for that child. Those support services are provided by individuals known as child and youth workers. QCH enters into contracts with and pays those workers. The written contract states that the parties’ intention is that their relationship be that of an independent contractor. One of those child and youth workers was the Intervenor, Sara Fobear. The Minister of National Revenue (the “Minister”) issued a ruling that during the period from January 1 to October 30, 2012, Ms. Fobear was engaged in insurable employment under Employment Insurance Act and pensionable employment under Canada Pension Plan with QCH. QCH has appealed that ruling. Ms. Fobear, who agrees with the ruling, has intervened.
The Court reviewed all of the standard tests applicable in such cases but decided that the most relevant issue was absence of control:
[15] I find that the most telling aspect of the relationship between QCH and Ms. Fobear was the means by which the work was assigned. That aspect strongly indicates that Ms. Fobear was an independent contractor. QCH did not assign work to Ms. Fobear. It did not assign foster parents to Ms. Fobear. It did not specify when or where Ms. Fobear was to work. In fact, QCH had no direct knowledge of where, when or even whether Ms. Fobear was working until the end of the month when she sought payment for that work[3]. The choice of which child and youth worker to use, when to use them, how often to use them and for what purpose they would be used was made entirely by the foster parents. Ms. Fobear was free to turn down work from any foster parent and the foster parents were free to continue to use or not to use Ms. Fobear as they saw fit. Ms. Fobear could work with as many foster parents as she wished. QCH did not guarantee Ms. Fobear a certain minimum amount of work. If Ms. Fobear was sick or had to miss a shift that she had previously arranged with a foster parent, she advised the foster parent of the problem, not QCH. It was then up to the foster parent to make other arrangements.
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[33] Based on all of the foregoing, I conclude that Ms. Fobear was an independent contractor. In reaching this conclusion I place a great deal of emphasis on the control factor. I find that QCH’s lack of control over the actual assignment of work to be significant enough to overcome Ms. Fobear’s lack of either a chance of profit or a risk of loss.
As a result the appeals were allowed.