Robert v. R. - TCC: Caregiver for client’s elderly mother was self-employed

Robert v. R. - TCC:  Caregiver for client’s elderly mother was self-employed

Robert v. M.N.R. (April 16, 2015 – 2015 TCC 84, Favreau J.).

Précis:  The worker provided care to the client’s elderly mother.  The Court concluded that the parties had intended that Ms. Robert be self-employed.  The client exercised very little control over how Ms. Robert provided her services.  The other traditional factors being neutral, the Court accepted that she was self-employed.

Decision:   This was an EI appeal that turned on two factors, control and intention:

[37]        The factors to be considered when determining whether or not a person was self-employed are set out in Wiebe Door Services v. Canada (Minister of National Revenue), [1986] 3 F.C. 553 (Federal Court of Appeal) and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (Supreme Court of Canada). Those factors are as follows:

(a)  the level of control the employer has over the worker’s activities;
(b) ownership of the tools;
(c)  chance of profit; and
(d) risk of loss.

[38]        In my view, the only factor that is relevant to determining the appellant’s status is the level of control over the worker’s activities. As was discussed above, this factor supports the conclusion that the appellant was a self-employed person. The other factors are neutral because the appellant did not have to provide tools or equipment and had little chance of profit or risk of loss, given that she had not made any capital investments.

[39]        In light of the preceding, the answer to whether the appellant was engaged to perform the services as a person in business on her own account is yes. From the outset, it was the parties’ common intention that the appellant would provide her services as a self-employed person. This intention was subsequently confirmed by the parties’ conduct during the taxation years included in the period in issue.

[40]        For these reasons, I find that the contractual relationship between the parties during the period in issue was governed by a contract of enterprise. The appeal is therefore dismissed.

TAGS:  Employment Insurance, Insurable Employment