http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/144086/index.do
Apex Language and Career College v. M.N.R. (May 5, 2016 – 2016 TCC 109, Favreau J.).
Précis: This decision dealt with the status of 13 teachers at a language school run by Apex Language and Career College. The 13 teachers had signed contracts indicating that they were not employees. The Tax Court reviewed the well-known factors and concluded that, notwithstanding the terms of their contracts, the teachers were all employees and therefore subject to EI and CPP. As a result the appeal of Apex was dismissed.
Decision: The Court reviewed all the well-known aspects of the distinction between employees and self-employed workers: intention, control, ownership of tools, right to sub-contract and chance of profit/risk of loss. All of these factors, with the exception of the intention of the parties expressed in the contract with Apex, pointed to an employment relationship. As a result the Court concluded that the teachers were engaged in insurable and pensionable employment for EI and CPP purposes:
Other Relevant Factors
[39] The terms and conditions of the Workers’ employment were the same whether the Workers were self-employed or employees of the appellant, with the exception that the Workers could participate in the appellant’s benefit plan and were required to work exclusively for the appellant once they were considered to be employees. The duties performed by the Workers were essentially the same whether they were self-employed or employees.
Conclusion
[40] Despite the intent of the appellant to characterize its relationship with the Workers as independent contractors, the facts of this case suggest otherwise. Based on the facts, I cannot conclude that the Workers were providing their services to the appellant as self-employed contractors running their own business. The significant degree of control that the appellant exercise over the Workers in the execution of their duties, the unlikeliness for the Workers to make a profit or incur a loss clearly shows that the Workers were employees of the appellant.
[41] For all these reasons, the appeal is dismissed.