Robertson Human Asset Management Inc. v. R. – TCC: Instructors were not independent contractors

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/66534/index.do New Window

Robertson Human Asset Management Inc.[1] v. M.N.R. (January 20, 2014) dealt with the status for the purposes of EI and CPP of Instructors working for the appellant:

[4]             During the period, the Appellant consisted of two divisions, a Human Resources and Recruitment Division and a Career Assets Division. These appeals relate to the Career Assets Division of the Appellant which operated seven private career colleges (the “Colleges”) in Southern Ontario. They were located in Hamilton, Mississauga, Oshawa, Scarborough, St. Catharines, Toronto and Woodbridge.

[5]             The Appellant’s students were adults who had been injured on the job and required retraining. Prior to late 2010, students were referred to the Appellant by disability management companies (the “Clients”) such as Cascade Disability Management, Sibley and Associates and RCS Disability Management which had contracts with the Workplace Safety & Insurance Board (“WSIB”). The disability management companies assigned a Vocational Rehabilitation Consultant (“VRC”) to each student to determine his/her vocational goals. The VRCs then referred the student to the Appellant and requested a proposal for an educational program that would allow the student to attain his/her vocational goals.



[10]        The Appellant hired individuals in one of four positions, namely, Program Manager, Centre Managers, Senior Instructors and Instructors.

[11]        The Program Manager was an employee who was responsible for managing the Centre Managers; overseeing the Colleges; and, fulfilling the duties of a Centre Manager when no Centre Manager was available to manage a College.

[12]        The Centre Managers were employees. They were responsible for overseeing the operations and administration of a specific College. They managed the programs within their College and were also responsible for business development. They had to meet with the Clients and students. They supervised the Senior Instructors and it is my view that they were responsible for supervising the Instructors as well. I will discuss this further in my analysis.

[13]        The Senior Instructors were employees who performed some of the same duties performed by the Instructors. However, they were in training to learn the Appellant’s business so that they could become Centre Managers. During the period in issue, there were three Senior Instructors.

[14]        The Instructors, who are the workers at issue in these appeals, were hired to teach the students. They signed a contract with the Appellant called “Independent Contractor Agreement – Training Instructor”. One of its terms was that the Instructor acknowledged and agreed that he/she was an independent contractor.

The court reviewed the factors of Intention, Control, Ownership of Tools, Chance of Profit, Risk of Loss and Replacements and concluded that the Instructors were not independent contractors:

[46]        When I consider all of the factors, I conclude that the Instructors were not in business on their own account. Although the parties may have intended that the Instructors be engaged by the Appellant as independent contractors, the terms of their relationship, when analyzed against the Wiebe Door factors, do not support their intention.

[47]        The appeals are dismissed.

[1]2014 TCC 23.