Symons v. R. - TCC: Daycare worker an independent contractor

Symons v. R. - TCC:  Daycare worker an independent contractor

Symons v. M.N.R. (November 2, 2015 – 2015 TCC 270, Hershfield J.).

Précis:  Ms. Aguilar was a daycare worker.  The sole issue before the Court was whether she was an employee.  The Court concluded that she was not an employee, based largely on the evidence of mutual intention and absence of a significant degree of control.

The appeal was allowed but with no order as to costs.

Decision:   The facts of this case were simple:

[1]             The Appellant, Ms. Kelly Symons, operated a Montessori Day Care out of her home in Montréal. One of her Montessori Day Care workers, Bérénice Aguilar, (the “Worker”), worked for the Appellant from March 20, 2012 through to June 2013.

[2]             While this was the uncontested engagement period alluded to at the trial, a ruling made by the Canada Revenue Agency (the “CRA”) under the Employment Insurance Act (the EIA) for the period June 21, 2012 to June 28, 2013 (the “Period”) found that the Worker was engaged in a contract of service with the Appellant such that an employer-employee relationship existed and that the Worker was thereby engaged in insurable employment.

While the Court reviewed all of the well known tests it relied primarily upon intention and control:


[50]        While I acknowledge that the testimony of both witnesses was self-serving, I am inclined to believe that the Worker knew she was, and acquiesced to, being engaged by the Appellant as an independent contractor. That is, I do not find that the Worker’s testimony, that she does not remember being told that she was not being retained as an employee, reliable. Similarly, I find that her conduct throughout the Period implicitly reflects that she agreed to be an independent contractor. I find no evidence of duress. I do not find her testimony, that she did not remember being told that one of the terms of the offer of engagement included her acceptance of being an independent contractor, credible. On a balance of probability, I find that she knowingly seized any tax advantage that might arise from being an independent contractor on the basis that she had accepted the terms of the offer put to her at the outset of her engagement. I cannot help but distrust her evidence that she was confused about the tax status of her earnings. To the contrary, as I said, it is more credible that she knowingly took full advantage of her self-employed status for tax purposes. She is not unsophisticated. I found her to be quite clever in seeking to turn the tables on the Appellant for her own advantage. As a civil servant for the province of Quebec for over a decade she would have known that the way she was being paid was not consistent with her being considered an employee. Her acquiescence to, indeed acceptance of, the arrangement in my view constituted an agreement to be so engaged. The Worker and Appellant were ad idem – of the same mind and intent that she was an independent contractor.


[60]        The Respondent places weight on the Workers’ subordinate role to Ms. Gadigone. In this regard counsel for the Respondent relies on the similar facts dealt with in Hann where the worker was an assistant to another worker. In that case the worker’s evidence was found to be more reliable. That is not the case here.

[61]        I do not accept the Worker’s testimony on this point – that she was under the supervision of Ms. Gadigone. I accept that the Worker was a capable Montessori teacher and that she was hired on that basis. I do not accept her testimony that she was instructed to regard Ms. Gadigone as the head teacher in any sense that would make her a subordinate.

[62]        The Appellant was never present, at relevant times, to impose a supervisory role. The teaching philosophy was external to the Appellant’s business. The Worker was free to invoke the teaching techniques of that philosophy in the daily routines of the children in whatever manner she pleased. The desired result of the teaching method employed was only assured by the talents of the Worker – working unsupervised without subordination. She was free to work or take days off without restriction.

As a result the Court concluded that Ms. Aguilar was not an employee.  Consequently the appeal was allowed with costs.