Canada ( Attorney General ) v. Hennick
A-328-94
Desjardins J.A.
22/2/95
6 pp.
Application for judicial review of judgment of Tax Court respondent independent contractor under contract for services, not holding insurable employment with Royal Conservatory of Music (intervener) during 1991, 1992 -- Respondent teaching piano at Royal Conservatory of Music in Toronto pursuant to contract -- Intervener collecting tuition fees from each pupil, retaining commission of 25% and remitting remainder to respondent -- Minister determining respondent exercised insurable employment under Unemployment Insurance Act, s. 3(1)(a) -- Tax Court Judge misapplying four-in-one test (control, ownership of tools, chance of profit, risk of loss) elaborated by Court in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (C.A.) -- Element of control more difficult to assess in cases of professionals -- Trial Judge completely ignoring respondent notified by intervener about not fulfilling minimum teaching requirement stipulated in collective agreement and requested to increase teaching load -- Right to exercise control more relevant than actual exercise of control -- As to second part of test, ownership of tools, Trial Judge concluding rightly respondent's status more likely to be that of employee-With regard to chance of profit, risk of loss, while respondent's earnings vary in relation to hours of work, profits or losses of undertaking borne by institution itself -- Last criterion that of "integration" -- Status of person cannot depend on character as individual -- Test to be followed objective one determined on facts of each case by weighing relevant factors -- Work done by respondent integral part of curriculum of Conservatory -- Business of teaching music that of intervener, not that of respondent -- Respondent employee of intervener by virtue of contract of service-Application allowed -- Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 3(1)(a).