http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/142427/index.do
Wholistic Child and Family Services Inc. v. M.N.R. (February 9, 2016 – 2016 TCC 34, Boyle J.).
Précis: Hyacinth Dunkley was a professional Child and Youth Care worker who was placed by Wholistic with its clients. The question before the Court was whether she was subject to CPP and EI. The Court found that for CPP purposes her position was analogous to employment and for EI purposes she functioned under the direction and control of clients of Wholistic. Accordingly the appeals were both dismissed.
Decision: Justice Boyle found that the tests under the two statutes were somewhat different. In the case of CPP that test was whether Ms. Dunkley’s position was analogous to employment:
[49] The worker’s hourly rate of pay was set at $16 in the agreement, an amount that was acceptable to Wholistic and her. It increased in June in one of the years reviewed to $17 per hour. The worker could only make money by working for Wholistic. She could not lose money since she had virtually no extra work-related expenses beyond showing up at the work site qualified and dressed to work. She could only make more money by working more shifts.
[50] She was paid on a twice‑monthly basis by direct deposit from Wholistic. While the contract suggests she would only be paid as Wholistic’s clients paid Wholistic for her services, the evidence is that this was not the case in practice. There was no evidence whatsoever of the financial or payment terms between Wholistic and any of its clients.
[51] These terms and conditions of remuneration are also overwhelmingly analogous to remuneration under a contract of service.
[52] With respect to the CPP appeal, I conclude that it must be dismissed as the CPP provisions which deem workers to be in pensionable employment with a placement or employment agency are met by Wholistic and its work relationship with its worker.
In the case of EI the test was whether she was subject to the direction and control of clients of Wholistic:
[55] Clearly the existence of the group home’s Supervisor, the coordination of all shifts including the assignment of individuals to be cared for and tasks to be performed by the Shift Coordinator, and the existence of a pre-determined schedule of tasks and activities for each individual cared for with guidelines on how tasks are to be done, the required reporting and communication through the log, shift, activity and communication books relating to the shift and relating to the individual cared for, clearly collectively place Wholistic’s workers under the direction and control of its clients’ group homes.
[56] The worker said that in a school setting she would take overall direction from the teacher in providing her support to an individual at school. Similarly she said that parents provided this in a private home setting.
[57] With respect to the EI appeal, I conclude that the evidence clearly establishes it must also be dismissed as Wholistic placed its worker with its clients to provide services to them, Wholistic paid the worker for her services, and the worker performed those services under the clients’ direction and control.
As a result both appeals were dismissed.