Body Boomer Inc. v. M.N.R. - TCC: Receptionist at gym was not an independent contractor

Body Boomer Inc. v. M.N.R. - TCC:  Receptionist at gym was not an independent contractor New Window

Body Boomers Inc. v. M.N.R. (April 27, 2015 – 2015 TCC 102, Jorré, J.).

Précis:  The Worker, Ms. Guimond, was a receptionist at a gym run by the appellant.  The appellant claimed that her status changed in 2010 when she agreed to become an independent contractor and produced a document which she had allegedly signed.  The Court gave the document little weight.  Based on a review of the facts she was clearly an employee.

Decision:  The Court found little merit in the appellant’s claims that the Worker was an independent contactor:

[33]        I now turn to the examination of the actual conduct of the parties. It is only necessary that I do so briefly.

[34]        With respect to control, it is also important to remember that it is the right to control that matters, whether or not the control is actually exercised. In this case, there was clearly control.

[35]        For example, Ms. Guimond had to work at hours set by the appellant; see the schedules in Exhibit R-3. While changes could be made, they could only be made if arrangements were made for someone else to be there, one of the other receptionists. Ms. Guimond never hired someone else to take her place.

[36]        Ms. Guimond’s work was done at the appellant’s premises.

[37]        With the exception of the three invoices covering the two Christmas/New Year periods and her final work period, these invoices never went below 88 hours, a 44-hour-per-week average. The invoices were often for over 100 hours and once went up to 114.5 hours. Clearly this was full time work.

[38]        With respect to chance of profit and risk of loss, Ms. Guimond was paid for the hours invoiced every two weeks. She had no expenses of any significance since she worked at the appellant’s premises and used the appellant’s equipment. She did, however, a minor expense for the cost of the appellant’s T shirts, which she was required to wear. She had no capital investment.

[39]        Given this, there could be no risk of loss and, while Ms. Guimond could earn more by working more, there was no possibility of her making a profit by, for example, providing the same services in fewer hours while continuing to receive the same fee.

[40]        There is no suggestion that Ms. Guimond provided the same services to someone else apart from the appellant.

[41]        Was Ms. Guimond running her own business when she was doing work for the appellant? The answer is very clearly no; she was an employee. 

[42]        Before concluding, I would add that the objective reality of the relationship of the parties here is such that, even if there had been an intention to create an independent contractor relationship, the result would still have been an employment relationship.

The EI and CPP appeals were dismissed.