http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/110424/index.do
Agence océanica inc. v. M.N.R. (June 29, 2015 – 2015 TCC 168, Jorré J.).
Précis: The appellant operated a placement agency which placed nurses at various institutions and private homes. The only question before the Court was whether the 189 nurses involved provided services “for and under the direction and control of a client of” the appellant. The Court reviewed the facts and concluded that the nurses were in fact subject to the control and directions of the persons for whom they provided the services. As a result the appeal was dismissed.
Decision: The appellant operated a placement agency. The relevant test for insurable employment in such as case was as follows:
[5] Paragraph 6(g) of the Employment Insurance Regulations was adopted under these provisions and sets out the following:
6 Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment:
. . .
(g) employment of a person who is placed in that employment by a placement or employment agency to perform services for and under the direction and control of a client of the agency, where that person is remunerated by the agency for the performance of those services.
After a detailed review of the facts the Court held that the nurses did work under the direction and control of clients of the appellant:
[108] There are several indicia of supervision present.
[109] The four witnesses had to all sign in when they arrived at the establishment. If they had to leave early because of an emergency, they had to get the establishment’s permission.
[110] It is true, as stated by the appellant, that the workers could not be obliged to stay later than planned by the establishment except in circumstances where their code of ethics obliged them to stay to ensure that the patients had a nurse. This is no different than a day employee hired for a set day.
[111] It was mandatory for the workers to follow the patients’ care plans, and the establishment could assign them different tasks than those planned beforehand. They also had to follow protocols for the care ordered.
[112] In general, they had to take their breaks and their meals at indicated times and they had to do the assigned tasks. Regarding this, I will comment on the testimony of Mr. Beaudet and Ms. Cimbert. Mr. Beaudet testified that the work plan was like a [Translation] “compass” that he tried to follow to the extent possible because this simplified his work. Ms. Cimbert said that she did the work by herself and that she could decide when to take her breaks provided it did not bother the organization or anyone else. The two workers mandatorily followed the care plans.
[113] Both Mr. Beaudet and Ms. Cimbert performed the assigned tasks. Neither one suggested that they did not perform the assigned tasks. However, there was flexibility with regard to the order in which some tasks could be performed and in the break and meal times, if this did not contravene care plans. That flexibility is doubtless needed to take into account any unforeseen events that could take place. In addition, with well-trained employees, it is common practice nowadays for employers to give employees some flexibility provided that the necessary tasks are accomplished.
[114] Given that Ms. Cimbert had more than 30 years of experience, it should have been rare for her not to know the tasks she had to perform.
[115] Given the need to interact, it is doubtless simpler to try to follow the [Translation] “compass” as Mr. Beaudet stated. Otherwise, an effort must be made to coordinate with the other workers as Ms. Cimbert did when she said that she could choose the time of her meals provided that she did what she had to do and that it did not bother other people or the organization.
[116] At Info-Santé, there was a great deal of supervision.
[117] The work was done at the client’s establishment, and equipment was, for the most part, provided by the client. The only things the workers provided were relatively inexpensive, namely, uniforms, shoes, and, for some, a stethoscope.
[118] Those are strong indicia of supervision, and, overall, given the evidence, I do not see how I could find that the Minister was wrong in concluding that the workers were under the control and supervision of the clients.
[Footnotes omitted]
As a result the appeal was dismissed.