Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Mr. Dennis De Ramos was an employee or independent contractor during his night shifts for the Appellant from July 1, 2020, to June 2022.

• The subjective intent of the parties and objective factors such as control, provision of tools, financial risk, and opportunity for profit were analyzed.

• Appellant argued Mr. De Ramos had autonomy over night shifts and could subcontract to his wife, but evidence did not support these claims.

• Respondent emphasized Appellant’s control over hours, pay, and approval of any changes, and lack of negotiation or risk for Mr. De Ramos.

• The Court reviewed relevant case law on employment status in caregiving contexts, focusing on mutual intent and the reality of the working relationship.

• Appeals were dismissed, confirming Mr. De Ramos was in insurable and pensionable employment under the EI Act and CPP for the period in question.

Background and employment relationship

James Burns Support Society was established in 2011 to obtain government funding for 24/7 care for James Burns, who has schizophrenia, attention deficit hyperactivity disorder, is autistic, and is deaf/mute. He communicates using a device and sign language and requires constant care. Ms. Susan Burns, his mother, was the main witness for the Appellant and managed all human resource matters, including shift coverage. Mr. De Ramos was hired as an employee on November 1, 2011, and was “totally an employee” until 2017. From 2017 until June 2022, Mr. De Ramos worked night shifts and a weekday shift from 9:00 a.m. to 1:00 p.m. In June 2022, his wife took over his night shifts, and he continued the day shift until May 31, 2023, when he ceased employment following a disagreement.

Disputed period and legal issue

The decisions at issue covered July 1, 2020, to May 31, 2023, but the real period in dispute was July 1, 2020, to June 2022, regarding night shifts. The question was whether Mr. De Ramos was an employee or independent contractor during those night shifts. The Appellant began treating night shifts as “respite” and paid per diem starting in 2017, following advice from Community Living BC due to funding shortfalls. The per diem rate was non-negotiable.

Arguments and policy considerations

The Appellant argued Mr. De Ramos had “full autonomy” during night shifts, including transporting Mr. Burns to the De Ramos residence and providing care there, and that he “subcontracted” care to his wife starting June 2022. The evidence showed, however, that Mr. Burns only slept at his own place or the De Ramos residence, and any other location required Ms. Burns’ authorization. Mr. De Ramos never subcontracted his night shift to his wife; instead, his wife took over and was paid directly by the Appellant. The Appellant also argued Ms. Burns did not control “how” Mr. De Ramos kept Mr. Burns safe and comfortable, but the evidence showed there was only one way to perform the night shift duties.

The Respondent reviewed five cases involving caregivers and argued that, where there was no shared intention to create an independent contractor relationship, courts found an employment relationship. The Respondent submitted that the Appellant set hours, pay, location, and employment status, with no negotiation or risk for Mr. De Ramos, and that any discretion required approval.

Court’s analysis and findings

Justice Spiro found that from 2011 to 2017, both parties intended an employment relationship. In 2017, the Appellant changed its intent for night shifts, but Mr. De Ramos did not. There was no shared intention for an independent contractor relationship. Objective factors showed Ms. Burns set shift hours, pay was non-negotiable, and any changes required her approval. Mr. De Ramos did not provide tools, hire helpers, or bear financial risk, and had no opportunity for profit. The Appellant’s control over all aspects of the work supported an employment relationship.

Outcome

The Court concluded that Mr. De Ramos was in insurable employment under the EI Act and pensionable employment under the CPP for all work performed from July 1, 2020, to May 31, 2023. The Appellant’s appeals of the Minister of National Revenue’s decisions dated July 9, 2024, were dismissed without costs. The successful party was the Minister of National Revenue, and no specific monetary amount was ordered or awarded in the judgment.