Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Assignment of work biggest factor for independent contractor relationship: Court AN ONTARIO FOSTER care support worker was an independent contractor, not an employee of a foster care program, the Tax Court of Canada has ruled. Quinte Children's Homes (QCH) is a provider of foster care and treatment for children in Belleville, Ont. QCH manages 35 foster care homes and places children in those homes, receiving compensation for its services from the Ontario Ministry of Com- munity and Social Services. e organization contracted child and youth workers to provide support for treat- ment plans for each child. Sara Fobear started working with QCH as part of a co-op program at her college and after she graduated, QCH asked her to start working full-time with it. She was presented with a consulting services agreement, which stated Fobear would be retained as an independent contractor. However, Fobear didn't read the full agreement and wasn't aware she would be an independent contractor, nor did QCH explain the arrangement. e contract allowed Fobear to subcon- tract her services, but only to people who had been approved by QCH. QCH provided Fobear with operations manuals outlining what she was and wasn't supposed to do when interacting with foster children, how she was to file reports, what training she would have to do, and when per- formance reviews would occur. ese were not QCH policies, but rather were required under Ontario legislation and the ministry. QCH didn't assign specific children to Fobear and other support workers; rather, foster parents picked them and used them as necessary. Fobear recorded her hours on an invoice and, at the end of each month, she submitted the invoice to QCH to get paid. QCH paid Fobear only for the hours she worked, not any benefits or vacation pay. Fobear used her car to take children to and from activities and appointments, and QCH reimbursed her on a per-kilometer basis. QCH also made the computers in its office available to her, but she usually used com- puters at the foster parents' homes. When Fobear began working full-time for QCH, she was under the belief that she was an employee and, when she filled out her 2012 income tax return, she indicated she had earned employment income rather than business income. e Minister of National Revenue found that she was engaged in in- surable employment and QCH must make appropriate deductions and payments to the ministry. QCH appealed the decision. e court found that even though Fobear didn't fully understand the contract and didn't have it explained, it was the intention of QCH for her to be an independent con- tractor. While QCH provided a substantial amount of instruction on how she was to do her job, it was part of the regulated indus- try and not for the benefit of QCH, said the court. e control was not QCH's, but rather it was "simply engaging workers to perform services in accordance with the law." e court also found the way in which Fobear was paid suggested she was an inde- pendent contractor. Monthly invoices she submitted for only the hours she worked was more consistent with an independent con- tractor relationship, said the court. QCH also had policies on lateness, con- flicts of interest, intellectual property, off- duty conduct, computer use, and dress code, which were applicable to employees and in- dependent contractors, though they weren't applied to support workers. e court found "the mere presence of these types of poli- cies" was indicative of an employment re- lationship, as was the fact QCH conducted performance reviews that went further than ministry requirements. Despite the elements of an employment relationship, the court found the factors pointing to an independent contractor rela- tionship were stronger. QCH's lack of con- trol over the actual assignment of work was the largest factor in determining Fobear was an independent contractor. Her work and how much she was paid were at her discre- tion, and QCH was unaware of what she did until she submitted her invoice each month. e Minister of National Revenue's finding was varied to reflect that Fobear was an in- dependent contractor. See Quinte Children's Homes Inc. v. Minister of National Revenue, 2015 CarswellNat 5264 (T.C.C. (Emp. Ins.). Katsuras and several other male partici- pants climbed and jumped from five- and 10-meter diving platforms at the pool while others swam. Katsuras also took three pic- tures of himself on the five-meter platform and posted them on his Instagram account. e city found out about the break-in and started an investigation. It contacted one of the employees who was there and told her if she assisted she would be treated less harshly when discipline was meted out. e employee agreed and provided details of the incident. e city also learned of the pictures Kastsuras had posted on Instagram, which were viewable by the public until he took them down about nine hours after posting them. e employee who came forward was sus- pended for three weeks and several others who participated were dismissed, including Katsuras. e termination letter to Katsu- ras stated that he had been trained in safety and accident prevention and was entrusted with safety at city pools, and "all activities that took place in the early morning of Aug. 29 were in direct conflict with your role as a lifeguard and an employee of the city and put your life and the lives of fellow staff in jeopar- dy." e letter also noted the damage to city property and the potential liability of the city in the incident, as well as the fact Katsuras posted pictures of the incident, aggravating his misconduct. e arbitrator agreed with the city that Katsuras' actions in entering the pool prop- erty illegally and swimming in the pool, as well as climbing and diving off the diving platforms were "profoundly unsafe activi- ties." However, unlike most of the other in- dividuals involved, he was not intoxicated. e arbitrator also agreed posting the pic- tures was not a good idea, but noted Katsu- ras took them down of his own accord nine hours later. In addition, there was no indica- tion the pictures were taken at the pool and didn't contain anything that could hurt the reputation of the city; nor were they intend- ed as a "screw you" attitude, which the city took to be the case, said the arbitrator.' e arbitrator found Katsuras demon- strated bad judgment, but should not be considered unemployable by the city, given his record of no prior discipline in eight years. Dismissal of someone with such little seniority would mean he would no longer be considered for any employment with the city in the future, which was serious punishment, said the arbitrator. e arbitrator also con- sidered the fact the co-worker who assisted in the investigation was only suspended for three weeks — even though she was drunk during the incident and only came forward after prodding by investigators. e arbitrator found there was little chance Katsuras would re-offend, as his role was less serious than that of other guilty par- ties and he was a reluctant participant in "an event that had become a staff tradition." e arbitrator substituted a suspension for two summers for the dismissal, making him eli- gible for work on Sept. 1, 2015, with a 30-day suspension on his record. See Toronto (City) and CUPE, Local 79 (Katsuras), Re, 2015 CarswellOnt 14401 (Ont. Arb.). Staff tradition « from POOL WORKER on page 1

• Cover