Garfin v. R. – TCC: Lawyer’s legal assistant an employee and not an independent contractor

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Garfin v. The Queen (September 19, 2014 – 2014 TCC 331) was a decision on EI/CPP appeals concerning the status of the appellant’s legal assistant. She took the position that her legal assistant was an independent contractor while the Crown argued that she was an employee. The facts were starkly simple:

[11] I also conclude that Ms. Walker intended to not be an employee but to be self-employed. I believe her understanding of what that meant was not as complete as that of the two lawyers she worked for. However, I believe she was aware of the important key distinctions. I do not accept that her understanding or desired characterization changed, either in 2012 or anytime before she left her position with Ms. Garfin and sought to collect Employment Insurance and was told she would need a T4 and a Record of Earnings.

[14] Ms. Walker’s position was that of legal assistant to Ms. Garfin. That position had Ms. Walker doing what Ms. Garfin asked to be done at any time. There was no evidence to suggest this was not within the range of services, responsibilities, and requirements normally associated with being a lawyer’s administrative assistant. I conclude Ms. Walker was expected to do what she was asked or told when she was asked or told to do it.

[15] The balance of the evidence is that her generally expected work availability and hours were nine to five, Monday to Friday, subject, of course, to the ups and downs and tos and fros of a law office, and of having personal lives.

Apart from Ms. Walker’s intention not to be an employee, there were none of the other classical indicia of independent contractor status.

The court concluded that Ms. Walker was Ms. Garfin’s employee and dismissed the appeals from the bench.