http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/111250/index.do
Tréport Wedding and Convention Centre Ltd. v. The Queen (August 12, 2015 – 2015 TCC 203, V. Miller J.).
Précis: The appellant had in excess of 100 workers for the operation of five banquet rooms it operated in one leased banquet hall.
With the exception of two workers that the appellant conceded were employees the Court held that the rest were all independent contractors since they were under little supervision and negotiated their own pay rates.
Decision: The Court’s finding about the various workers in this banquet hall boils down to the following:
A. Control
[32] When the Workers were engaged by the Appellant, they were given an orientation session so that they knew where to find items which they needed to perform their services. However, it is my view that, beyond the orientation session, the Appellant did not train the Workers. I believe Mr. Cipressi when he said that most of the Workers had performed the same services prior to working with the Appellant. For those Workers like Ms. Menguito, Ms. Oleniak and Ms. Crowe who had not waitressed before, they learned by watching others perform the same services. They were not trained by the Appellant.
[33] Generally, it was clear that most of the Workers were sufficiently professional so that they did not need supervision. The Appellant did instruct the Workers on “what” to do for each event but not how to do it. I have concluded from the evidence that the Appellant did not supervise the Workers.
[34] The Workers were not obliged to take shifts when the Appellant called them. They could refuse, or if they had accepted and later realized that they could not work, the Workers could send a substitute as long as they informed the Appellant.
[35] According to the control factor, the Workers were independent contractors.
B. Tools
[36] The Appellant leased the banquet facility and it owned the chairs, tables and china which were used at functions. The Appellant supplied all the necessary tools and equipment to look after its clients. The Workers supplied their own “event appropriate apparel”, corkscrews, aprons, shoes, Smart Serve Certificates and in the case of bartenders, their own martini shaker. In the circumstances of this case, the Workers supplied the tools of the trade which it was reasonable for them to own as servers, bartenders and kitchen helpers. I have concluded that the Workers were independent contractors even though the major tools necessary to perform their jobs were provided to them: Precision Gutters Ltd v Canada, 2002 FCA 207 at paragraph 25.
C. Chance of Profit/Risk of Loss
[37] The majority of the witnesses testified that the Workers could negotiate their rate of pay. Some Workers stated that they negotiated their pay rate while others stated they were offered an hourly rate which they thought was fair.
[38] Although it appeared that breakage of dishes or spillage of food didn’t happen very often, Workers were responsible for the cost of the damage when it did occur.
As a result the appeals were allowed and the Court held the workers (with the exception of the two conceded by the appellant to be employees) to be independent contractors.
Comment: This case seems somewhat at variance with the prevailing jurisprudence. It would not be surprising to see CRA launch an appeal.