Royal Winnipeg Ballet v. Minister of National Revenue, (2006) 346 N.R. 276 (FCA)

• Judge: Desjardins, Evans and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 28, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2006), 346 N.R. 276 (FCA);2006 FCA 87;264 DLR (4th) 634;[2008] 1 CTC 220;346 NR 276;[2006] FCJ No 339 (QL);[2006] DTC 6323;48 CCEL (3d) 163

Royal Winnipeg Ballet v. MNR (2006), 346 N.R. 276 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. MR.019

The Royal Winnipeg Ballet (appellant) v. Minister of National Revenue (respondent)

(A-443-04; 2006 FCA 87)

Indexed As: Royal Winnipeg Ballet v. Minister of National Revenue

Federal Court of Appeal

Desjardins, Evans and Sharlow, JJ.A.

March 2, 2006.

Summary:

At issue was whether the Royal Winnipeg Ballet (RWB) had any legal obligation, in rela­tion to dancers, to pay contri­butions under the Canada Pension Plan or premiums under the Employment Insurance Act.

The Tax Court of Canada, in a decision reported 2004 TCC 390, ruled that the danc­ers were employees of the RWB and not in­de­pendent contractors; therefore, contribu­tions and premiums were payable on their be­half. The RWB appealed.

The Federal Court of Appeal, Evans, J.A., dissenting, allowed the appeal. The court held that the Tax Court judge erred in ruling that the intention of the parties was irrel­evant in this case.

Courts - Topic 31

Stare decisis - Authority of judicial deci­sions - The common law - Bijuralism (i.e., common law and law of Quebec) - The Ju­di­cial Committee of the Privy Council (JCPC) in Montreal v. Montreal Locomo­tive Works Ltd. was called upon to rule on a Quebec case respecting the nature of cer­tain contracts - Desjardins, J.A., of the Federal Court of Appeal, stated that "... Mon­treal Locomotive is an interesting ex­ample of bijuralism. The JCPC decided this Quebec case as the court of last resort for Canada. The contract their Lordships were called upon to interpret stated that it was to be interpreted 'in accordance with the laws of the Province of Quebec', [1945] 2 D.L.R. 373 at p. 400-401. The JCPC used the legal concepts it knew best to decide the case. The ratio decidendi of the case became binding on the parties. Mon­treal Locomotive thus entered the case law of Quebec. Since the decision was pro­nounced by the JCPC, the case turned out to be an authority in the common law world" - See paragraph 83.

Government Programs - Topic 1244

Canada Pension Plan - Assessments and con­tributions - Pensionable employment - Contracts of service - [See both Master and Servant - Topic 308 ].

Master and Servant - Topic 308

Nature of relationship - Contract of service and contract for services distinguished - The Federal Court of Appeal reviewed the prin­ciples of law applicable in determining whether individuals were employees or in­de­pendent contractors - See paragraphs 34 to 53.

Master and Servant - Topic 308

Nature of relationship - Contract of service and contract for services distinguished - At issue was whether the Royal Winnipeg Bal­let (RWB) dancers were employees such that the RWB had to pay contri­bu­tions under the Canada Pension Plan or pre­miums under the Employment Insurance Act - The typical ballet season ran for eight months - Dancers were under con­tract for one season at a time and per­son­ally paid certain expenses - The dancers and the RWB agreed that the dancers were inde­pendent contractors - A Tax Court judge ruled that the dancers were em­ployees - In reaching this decision he found it unnec­essary to take into account "the intention of the parties" because his consideration of other relevant factors yield­ed a conclusive result - The RWB ap­pealed - The Federal Court of Appeal al­lowed the appeal ruling that the dancers were independent contrac­tors - The court held that the Tax Court judge erred in rul­ing that the intention of the parties was irrel­evant in this case - The court stated that "in these circumstances, it seems to me wrong in principle to set aside, as worthy of no weight, the uncon­tradicted evi­dence of the parties as to their common under­standing of their legal rela­tionship, even if that evidence cannot be conclusive. The judge should have con­sidered the Wiebe Door [SCC] factors in the light of this uncontradicted evidence and asked him­self whether, on balance, the facts were con­sistent with the conclusion that the dancers were self-employed, as the parties under­stood to be the case, or were more con­sist­ent with the conclusion that the dancers were employees. Failing to take that approach led the judge to an incorrect conclusion" - See paragraphs 1 to 83.

Unemployment Insurance - Topic 448

Assessments and premiums - Insurable em­ployment - Employment that is not em­ploy­­ment under a contract of service - [See both Master and Servant - Topic 308 ].

Cases Noticed:

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12, refd to. [para. 34].

Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553; 70 N.R. 214; [1986] 2 C.T.C. 200; 87 D.T.C. 5025 (F.C.A.), refd to. [para. 34].

Stevenson Jordan and Harrison Ltd. v. MacDonald and Evans, [1952] 1 T.L.R. 101 (C.A.), refd to. [para. 36].

Market Investigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 (Q.B.D.), refd to. [para. 37].

Lee Ting Sang v. Chung Chi-Keung - see Sang v. Keung et al.

Sang v. Keung et al., [1990] 2 A.C. 374; 107 N.R. 386 (P.C.), refd to. [para. 39].

Wolf v. Minister of National Revenue, [2002] 4 F.C. 396; 288 N.R. 67; [2002] 3 C.T.C. 3; 2002 D.T.C. 6853 (F.C.A.), refd to. [para. 45].

Montreal (City) v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 (P.C.), affing. [1945] 4 D.L.R. 225 (S.C.C.), reving. in part [1945] 2 D.L.R. 373 (Que. C.A.), refd to. [paras. 50, 70, 83].

Laurent et al. v. Théoret; Laurent et al. v. Hôpital Notre-Dame de l'Espérance, [1978] 1 S.C.R. 605; 17 N.R. 593, refd to. [para. 50].

Curley v. Latreille (1920), 60 S.C.R. 131, refd to. [para. 50].

Spire Freezers Ltd. v. Minister of National Revenue, [2001] 1 S.C.R. 391; 266 N.R. 305, refd to. [para. 74].

Continental Bank Leasing Corp. v. Min­ister of National Revenue, [1998] 2 S.C.R. 298; 229 N.R. 58, refd to. [para. 74].

Backman v. Minister of National Revenue, [2001] 1 S.C.R. 367; 266 N.R. 246, refd to. [para. 74].

Consolidated-Bathurst Export Ltd. v. Mu­tual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 76].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 76].

Family Insurance Corp. v. Lombard Can­ada Ltd., [2002] 2 S.C.R. 695; 288 N.R. 373; 167 B.C.A.C. 161; 274 W.A.C. 161; 2002 SCC 48, refd to. [para. 76].

Minister of National Revenue v. Standing (1992), 147 N.R. 238 (F.C.A.), refd to. [para. 81].

Hayes v. Canada - see Rezek v. Minister of National Revenue.

Rezek v. Minister of National Revenue (2005), 336 N.R. 141; 2005 FCA 227, refd to. [para. 93].

9041-6868 Québec Inc. v. Minister of National Revenue (2005), 350 N.R. 201; 2005 FCA 334, refd to. [para. 96].

Authors and Works Noticed:

Anson, William R., The Law of Contract (28th Ed. 2002), p. 160 [para. 76].

Cheshire, Geoffrey Chevalier, Fifoot, Cecil Herbert Stuart, and Furmston, Michael P., The Law of Contract (14th Ed. 2001), c. 6, pp. 133, 135 [para. 76].

Friedlander, Lara, What Has Tort Law Got To Do With It? (2003), 51 Can. Tax J. 1467, generally [para. 112].

Lewison, Kim, The Interpretation of Con­tracts (2nd Ed. 1997), c. 1, para. 1.02 [para. 76].

Waddams, Stephen M., The Law of Con­tracts (5th Ed. 2005), pp. 228, 229 [para. 76].

Counsel:

Peter H. Harris, Q.C., and Harry C.G. Underwood, for the appellant;

Gerald Chartier, for the respondent.

Solicitors of Record:

McCarthy Tétrault LLP, Toronto, Ontario, for the appellant;

John H. Sims, Q.C., Deputy Attorney Gen­eral of Canada, Winnipeg, Manitoba, for the respondent.

This appeal was heard at Toronto, Ontario, on September 28, 2005, before Desjardins, Evans and Sharlow, JJ.A, of the Federal Court of Appeal. On March 2, 2006, the judg­ment of the Court of Appeal was de­liv­ered and the following opinions were filed:

Sharlow, J.A. - see paragraphs 1 to 68;

Desjardins, J.A. (concurring reasons) - see paragraphs 69 to 83;

Evans, J.A., dissenting - see paragraphs 84 to 118.