Corporation of the County of Wellington v. Butler et al. [Indexed as: Wellington (County) v. Butler]

56 O.R. (3d) 271

[2001] O.J. No. 4219

Docket No. 57/2000

Ontario Superior Court of Justice

Divisional Court

Lane, B. Wright and Aston JJ.

October 31, 2001

Employment -- Pay equity -- Respondents provided day care in their own homes under annual agreements with County -- Pay Equity Hearings Tribunal applied common law "total relationship" test and "organization/integration" test and concluded that respondents were employees of County for purposes of Pay Equity Act -- County's application for judicial review allowed -- Decision quashed -- Pay Equity Act, R.S.O. 1990, c. P.7.

Employment -- Pay equity -- Employee or independent contractor -- Respondents provided day care in their own homes under annual agreements with County -- Pay Equity Hearings Tribunal applied common law "total relationship" test and "organization/integration" test and concluded that respondents were employees of County for purposes of Pay Equity Act -- County's application for judicial review allowed -- Decision quashed -- Pay Equity Act, R.S.O. 1990, c. P.7.

The applicant held licences to provide day care services in three ways, one of which was the provision of private-home day care. The respondents provided day care in their own homes under annual agreements with the applicant. The Pay Equity Hearings Tribunal, primarily applying the common law "total relationship" test but also applying the common law "organization/integration" test, concluded that the respondents were employees of the applicant for the purposes of the Pay Equity Act. The applicant brought an application for judicial review of that decision.

Held, the application should be granted.

Per Aston J.: In fashioning whether and how pay equity is achieved, the Pay Equity Commission and its adjudicative branch, the tribunal, are insulated from judicial review by the standard of patent unreasonableness. Because the Act does not define "employee", the tribunal has considerable latitude in determining employment status within the context of the purposes of the Act. It is interpreting its constituent statute. The decision has a jurisdictional component, but the interpretation of the relationship between the parties has been left to the tribunal by the legislature and it does engage the tribunal's purpose and expertise. However, to say the tribunal's decision on the issue of whether a person is an "employee" must be patently unreasonable before the court will interfere may set the bar too high. In its analysis of the common law, the tribunal's expertise, relative to the court, is not engaged in the same way such expertise is applied to other aspects of the complex statutory scheme. Perhaps the standard of review on the issue of whether service providers are employees should be the intermediate "reasonableness simpliciter" standard. However, the outcome of this case was not dependent on this view of the proper standard of review, as the decision of the tribunal was patently unreasonable.

The process for selecting providers did not lead to any logical inference that the providers were employees, and in fact more logically described a contract for services, rather than employment. The tribunal's conclusion that the selection process had more in common with employment recruitment was merely a conclusion stated as a reason. In stating that it did not attach much weight to the agreement entered into between the applicant and its day care providers, the tribunal expressed no valid reason at law for disregarding a plain and unambiguous single-page agreement in which the provider specifically acknowledged that she was an independent contractor. Providers claimed independent contractor status on their tax returns. While this factor was not determinative, it was wrong for the tribunal to dismiss it out of hand. Providers were required to hold liability insurance for themselves because they were not covered by the applicant's insurance. The tribunal's reason for disregarding the usual assumption that liability insurance tends to indicate independent contractor status was specious. The tribunal's conclusion that the providers were regularly supervised by home visitors employed by the applicant was a tenuous conclusion on its own findings of fact. The billing and remuneration scheme used by the parties better fitted independent contractor status than employee status. The tribunal twisted the evidence to suit its conclusions, stated bald conclusions as if they were reasons or facts, ignored or irrationally discounted evidence that would lead to the conclusion that the respondents were, in fact, self-employed independent contractors and used circular logic. The reasoning was flawed on its face, illogical and not supported by the tribunal's own findings of fact.

It was the ultimate decision of the tribunal that was subject to review, not its reasons. Had the tribunal adopted the organization/integration test as the only test (or even a paramount test), its conclusion was at least defensible and might be insulated from judicial review. However, the application of the total relationship test led overwhelmingly to the conclusion that the respondents were independent contractors, not employees.

Per B. Wright J. (concurring in the result): The question of whether a person is an employee or an independent contractor is a question of law. The tribunal had no special expertise to determine that question. No matter what standard of review was applicable to the tribunal's decision, the decision was wrong in law and should be quashed.

Per Lane J. (dissenting): The appropriate standard of review is patent unreasonableness whenever the tribunal is fashioning whether and how pay equity is achieved. That standard, and not the standard of reasonableness simpliciter, also applies to a decision as to who is an employee. The achievement of the purpose of the Pay Equity Act would be undermined if the central question of who is an employee for pay equity purposes fell outside of the tribunal's exclusive jurisdiction.

Whether a person is an employee is a complex question of fact to be decided in a legal framework that identifies those attributes of an existing relationship that tend to demonstrate for or against the existence of the specific relationship of employee and employer. In approaching this issue, the tribunal made no error of law. It correctly identified and discussed the principles by which the common law distinguishes employees from non-employees, and exhaustively analyzed the facts in the light of those principles. Whatever the standard of review, it was not open to the court to interfere with the conclusions of mixed fact and law of a tribunal from which no appeal on issues of fact is possible, and which made no error in law, unless there was no evidence upon which a finding that the providers were employees could be made.

APPLICATION for judicial review of a decision of the Pay Equity Hearings Tribunal.

Cases referred to Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, 209 N.R. 20, 71 C.P.R. (3d) 417; Dickason v. University of Alberta, 1992 30 (SCC), [1992] 2 S.C.R. 1103, 4 Alta. L.R. (3d) 193, 95 D.L.R. (4th) 439, 141 N.R. 1, [1992] 6 W.W.R. 385, 11 C.R.R. (2d) 1, 92 C.L.L.C. 17,033 (sub nom. University of Alberta v. Alberta); Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 1488 (ON CA), 23 O.R. (3d) 43, 124 D.L.R. (4th) 82 (C.A.) [Leave to appeal to S.C.C. refused (1995), 195 N.R. 399n] (sub nom. Ontario Nurses' Assn. v. Ontario (Pay Equity Hearings Tribunal)); Haldimand-Norfolk Regional Board of Commissioners of Police v. Ontario Nurses Assn. (1989), 36 O.A.C. 276, 30 C.C.E.L. 139, 1 P.E.R. 188, [1989] O.J. No. 1995 (Div. Ct.), affd (1990), 41 O.A.C. 148 (C.A.); Stein v. "Kathy K" (The) (1975), 1975 146 (SCC), [1976] 2 S.C.R. 802, 6 N.R. 359, 62 D.L.R. (3d) 1; Stevenson Jordan & Harrison Ltd. v. MacDonald & Evans, [1952] 1 T.L.R. 101, 69 R.P.C. 10 (C.A.); Wiebe Door Services Ltd. v. M.N.R., 1986 6775 (FCA), [1986] 3 F.C. 553, 46 Alta. L.R. (2d) 83, 70 N.R. 214, [1986] 5 W.W.R. 450, 86 C.L.L.C. Â14,062, 87 D.T.C. 5025 (C.A.) Statutes referred to Day Nurseries Act, R.S.O. 1990, c. D.2 Pay Equity Act, R.S.O. 1990, c. P.7, ss. 1(2), 4(1), (2), 5, 9(3), 30(1), 32(2) Rules and regulations referred to R.R.O. 1990, Reg. 262, s. 51(1)

Roy C. Filion, Q.C., and Angela Rae, for applicant. Lily Harmer, for individual respondents. Margaret Leighton, for Tribunal. Leslie McIntosh, for intervenor. Beth Leith, agent for respondent Spencer.

[1] LANE J. (dissenting): -- The County of Wellington (the "County") applies for judicial review of two decisions of the Tribunal. The individual respondents provide day care in their own homes for children under an arrangement with the County and are referred to as "providers". By its decision of January 9, 1997, the Tribunal decided that the relevant date for determining if the providers were employees of the County for pay equity purposes was January 1, 1988. By its decision of October 25, 1999, the Tribunal found that the providers, and by analogy all persons in like situation, were employees of the County for pay equity purposes.

[2] The County holds licences to provide day care services in three ways. The program relevant to this application is the provision of private-home day care; that is, women (providers) provide their own homes as the location in which they will care for children under a three-way arrangement with the County, the parents and the provider. This scheme is established under the Day Nurseries Act, now R.S.O. 1990, c. D.2 and R.R.O. 1990, Reg. 262. Under the nomenclature of the Act, the County is the "operator of a private-home day care agency" and, by s. 51(1) of Reg. 262, is required to enter into an agreement with ". . . each person in charge of a location where private-home day care is provided by the operator . . .".

[3] The County entered into annual agreements with each of the individual respondents covering varying periods, the earliest beginning in 1989, under which each agreed to become a provider of day care services "from time to time when called upon to do so". The agreements contained, as para. 2:

That I am an independent contractor willing to offer my services as a day care provider provided that the time of performing such services is agreeable to me, but under no circumstances shall I be deemed to be an agent or employee of any person and no deductions shall be made from any fees paid to me for the services I shall perform and in particular there shall be no deductions for income tax, Workmen's Compensation, Canada Pension Plan or Unemployment Insurance.

[4] There is no definition of "employee" in the Pay Equity Act, R.S.O. 1990, c. P.7 apart from declaring that students working during vacation are not employees. Accordingly, in considering whether the providers were employees or independent contractors, the Tribunal adopted the common law tests to resolve the issue. These tests included an analysis of the degree of control exercised over the worker by the "employer" as to the manner in which the job is performed, an analysis of the total relationship of the parties and consideration of the degree of integration of the alleged employee into the organization of the alleged employer. The Tribunal addressed these tests in several parts of its reasons, which I set out together for convenience:

6. We agree with counsel for the County that the Act does not provide wage discrimination redress for all women working in traditionally female sectors, but only to those working women who are employees in job classes covered by the Act. Merely because child-care has traditionally been, and continues to be, female work, does not on its own justify a finding that the providers are employees. We must be otherwise satisfied that the providers are employees.

7. In light of the very general language in the Act with respect to the definition of employee, we find it appropriate to make use of the common law tests. We accept counsel for the County's recommendation that we review the evidence in light of the total relationship test. It is comprehensive and consists of a framework, based on principles developed over time, that can accommodate new circumstances. It specifically recognizes that "no exhaustive list . . . can be compiled of considerations which are relevant . . . nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases". We also briefly subject the evidence to the organization/integration test because we find it responsive to the pay equity context. Under each of the two major common law tests, we find that the providers are employees.

8. The jurisprudence highlights the importance of the factual situation in each case and the parties therefore presented full and detailed evidence. The evidence is reviewed in light of the factors in the total relationship test. To that test, we have added one factor we consider important"the structure of the relationship" factor, in which we examine the selection process, the duration of the relationship, the contract and matters flowing from it.

[5] After some 70 paragraphs of analysis of the first test they applied, the "total relationship test", the majority of the tribunal concluded:

109. We find that the structure of the relationship factor, the control factor, and the financial risk factor indicate that the providers are employees of the County. In particular, there are many incidents of County control in this relationship and we attach the greatest weight to this factor. The equipment factor indicates that the providers are independent contractors. The capacity to hire helpers factor and the management of others factor do not indicate independent contractor status. The responsibility for investment factor is not pertinent. We attach little weight to the opportunity for profit factor. On balance, we find that the weight of the evidence indicates that the providers are employees of the County and not independent contractors.

[6] The Tribunal then turned to the second test, which it derived from the common law:

110. The second common law test relevant in this case is the well-known "organization" or "integration" test, that considers the degree of interdependence of the operations of the two parties.

[7] The Tribunal quoted from the decision of Lord Denning in Stevenson Jordan & Harrison Ltd. v. MacDonald & Evans, [1952] 1 T.L.R. 101, 69 R.P.C. 10 (C.A.):

One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

and continued:

112. It is our view that this test has significant value in the context of pay equity. In pay equity, the basic mechanism used to achieve the object of the Act is to subject all positions within a work force to a review and comparison of value, so that those employed in the positions can benefit from its application. Accordingly, a meaningful test for employee, in the context of the Act, is one that is inclusive of all the positions which are, in fact, integral to the work of the employer. Adopting such a purposive approach to the interpretation of employee leads us to conclude that the organization/integration test is particularly pertinent in the pay equity context.

[8] Applying this test, the majority found that it was the providers who performed the actual work for which the County is licensed; that the County employed persons to supervise and monitor the providers and represented to the public that it was responsible for their training and supervision; that the providers' work paralleled the work of other day care providers on the staff of the County in other parts of the same program; and that the providers were essential to a key program of the County and not merely accessory to it. The providers were, therefore, employees. The Tribunal concluded:

118. . . . On the basis of the two most frequently used common law tests, we have held that the providers are employees and, therefore, it is unnecessary to explore the issue of dependent contractor in this instance.

[9] In my opinion, the Tribunal acted correctly in resorting to the common law for criteria by which to determine the status of the providers.

[10] I have reached the conclusion that this application should be dismissed. I will endeavour briefly to show why I differ from my colleagues.

[11] The general background and the key findings of the Tribunal are set out in the reasons of my brother Aston. I agree with his analysis of the appropriate standard of review as patent unreasonableness whenever the Tribunal is "fashioning whether and how pay equity is achieved". I also agree that, in the absence of any definition of employee, the Tribunal is entitled to considerable latitude in determining employment status for the purposes of its own statute; and that, although there is a jurisdictional component in deciding employment status, such a decision engages the expertise of the Tribunal. In my view, the achievement of the purpose of the Pay Equity Act would be undermined if the central question of who is an employee for pay equity purposes fell outside of its exclusive jurisdiction. For this reason, unlike my brother Aston, I would not find the standard of reasonableness simpliciter applicable, but the standard of patent unreasonableness. Like him, however, I do not think th at the decision before us requires determination of this distinction. In my view, the Tribunal's decision is not unreasonable, never mind patently so.

[12] Whether a person is an employee is a complex question of fact to be decided in a legal framework which identifies those attributes of an existing relationship that tend to demonstrate for or against the existence of the specific relationship of employee and employer. In approaching this issue, the Tribunal made no error of law. It correctly identified and discussed the principles by which the common law distinguishes employees from non-employees, and exhaustively analyzed the facts in the light of those principles.

[13] In my view, whatever may be the standard of review, it is not open to us to interfere with the conclusions of mixed fact and law of a tribunal from whom no appeal on issues of fact is possible, and which has made no error in law, unless there is no evidence upon which the finding could be based. There is ample evidence in the record upon which a finding that the providers are employees could be made; it is detailed throughout the decision of the majority of the Tribunal in some 70 paragraphs of careful analysis. The major difference between my colleagues and myself is that I do not believe it is open to us in the circumstances of this case to substitute our assessment of the evidence and the weight to be given to various parts of it, for the assessment of the Tribunal.

[14] One matter that was particularly stressed by the County before us was the failure of the majority of the Tribunal to give effect to the terms of the contract. It is a common form contract and in no meaningful sense was it negotiated. The Tribunal gave it little weight. It did not accept that this unilaterally imposed document amounted to a joint expression of intention. In my view, the Tribunal was not wrong nor unreasonable in that analysis.

[15] Another issue canvassed was the impact of the extensive controls over the activities of the providers enacted by Reg. 262. I agree with the Tribunal's view (para. 24) that the fact that some of the controls implemented by the County derived from Reg. 262 does not mean that such controls do not affect the analysis of employment status. The issue is the degree of control actually exerted by the County over the manner in which the providers do their job, not whether the County is legally required to exert that control.

[16] We are not entitled to set aside the Tribunal's conclusions as to the weight to be given to the various pieces of evidence simply because we might have weighed them differently and so reached a different conclusion.

[17] The Tribunal has the protection of a privative clause in the Pay Equity Act:

30(1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

[18] In addition, the Tribunal had the unique advantage of having seen and heard the witnesses and is best able to assess their evidence.

[19] It was submitted that the expertise of the Tribunal was no greater than that of the court when it came to determining who was an employee. So far as identifying the common law tests for differentiating employees from non-employees, that is so. However, the Tribunal is not determining who is an employee in a vacuum; it is doing so in the light of the terms of its home Act, and for the purposes of that Act. It is bound to approach the undefined term "employee" in a purposive manner, having regard to the purposes of the Act being administered. By not defining "employee", the legislature left it to the Tribunal to determine employment status in the light of the objectives of the Act. It presumably expected the Tribunal to adopt an expansive meaning to the word, as befits language in a remedial statute, in order to bring the benefits of pay equity to those women who could properly be regarded on the facts as employees for the purposes of the Act. The Tribunal correctly identified the legal issues and correc tly approached the facts from the point of view of the Act, balancing the factors revealed in the evidence to determine what the real nature of the relationship was.

[20] The Tribunal has significant expertise as described by Abella J.A. in Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 1488 (ON CA), 23 O.R. (3d) 43 at p. 56, 124 D.L.R. (4th) 82 (C.A.):

The language of the statute makes it clear that the overall responsibility for when, whether and how pay equity is achieved lies with the Pay Equity Commission and its adjudicative branch, the Pay Equity Hearings Tribunal. The tripartite membership of the Tribunal consists of representatives from labour, management and legal spheres whose backgrounds and continuing exposure to the legislation give them a unique expertise. And it is clear from the privative clause and the legislation as a whole that the purpose of the Tribunal is to serve as the exclusive adjudicative body dealing with the redress of systemic gender discrimination in compensation for work, or pay equity.

[21] In Dickason v. University of Alberta, 1992 30 (SCC), [1992] 2 S.C.R. 1103, 95 D.L.R. (4th) 439, Cory J. referred to the decision of the Supreme Court in Stein v. "Kathy K" (The), 1975 146 (SCC), [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1 where Ritchie J. stated (at p. 808 S.C.R.) that the findings of fact made at trial were not to be reversed "unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts". Continuing with his analysis, Cory J. said (at p. 1125 S.C.R.):

The principle of deference to findings of fact made at first instance has been to a large extent adopted in reviewing the decisions of administrative tribunals, although the standard of review of decisions made by administrative bodies will always be governed by their empowering legislation. Where the legislature has enacted a privative clause restricting review, it has been held by this Court that appellate courts must defer to a tribunal's finding of fact.

[22] Cory J. went on to observe that where there was neither specialized skill and knowledge in the decision-maker, nor a privative clause, the situation was different. In Dickason itself, there was a statutory appeal with leave on questions of fact or mixed fact and law, and the appeal was on the facts. In those circumstances, no particular deference was owed by the reviewing court. In the case before us, there are both a privative clause and a significant degree of expertise.

[23] In Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, the court dealt with the issue of the deference due to an administrative body on an issue of mixed fact and law. It should be noted that the case dealt with a statutory right of appeal and the right of review was therefore broader than the right which we possess in this case. Iacobucci J., for the court, at pp. 766 S.C.R.ff, characterized the task of identifying the correct principles as a matter of law; the task of finding out what happened as a matter of fact; and the task of applying the law to the facts as a mixed question of law and fact.

[24] In Southam, the respondent submitted that the Tribunal had correctly informed itself on the law but had failed to apply it to the facts by ignoring important evidence. The court found against this proposition, noting that the Tribunal had actually discussed the key points at length. But Iacobucci J. went on to deal with one remaining suggestion, at p. 770 S.C.R., that the Tribunal might have erred by giving inadequate weight to certain factors. He analyzed the nature of a balancing process:

The problem with this suggestion is that it is inimical to the very notion of a balancing test. A balancing test is a legal rule whose application should be subtle and flexible, but not mechanical. It would be dangerous in the extreme to accord certain kinds of evidence decisive weight as, for example, by saying that evidence of inter-industry competition should always be sufficient to prove that two companies are operating in the same market. A test would be stilted and impossible of application if it purported to assign fixed weights to certain factors as, for example, by saying that evidence of inter-industry competition should weigh 10 times as heavily in the Tribunal's deliberations as does evidence of physical similarities between the products in question. These sorts of things are not readily quantifiable. They should not be considered as matters of law but should be left initially at least to determination by the Tribunal. The most that can be said, as a matter of law, is that the Tribunal should co nsider each factor; but the according of weight to the factors should be left to the Tribunal.

[25] At p. 788 S.C.R., Iacobucci J. continued:

I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer him- or herself would have come to a conclusion opposite to the tribunal's. Appellate courts must resist such temptations. My statement that I might not have come to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned.

[26] This kind of balancing of the factors is exactly what the Tribunal had to perform in the case before us. When it is recalled that Iacobucci J. was writing in a case where the tribunal was subject to a right of appeal, the case for judicial restraint on our part in dealing on a judicial review with the weight given by the Tribunal to the various factors before it is overwhelming.

[27] I would dismiss the application for judicial review.

ASTON J.: --

(a) Background

[1] This is an application by the County of Wellington for judicial review of two decisions of the pay Equity Hearings Tribunal dated January 9, 1997 and October 25, 1999. In the first decision, the Tribunal held the relevant date for determining whether in-home day care providers are a job class for the purposes of the County's pay equity plan (and evidence on that issue) is January 1, 1988. On the hearing of this application, County's counsel abandoned the challenge to January 1, 1988 as the relevant date, but emphasized how the Tribunal subsequently failed to follow its own evidentiary ruling in making the second decision of October 25, 1999. The second decision, a split decision, held [that] Butler and others are "employees" of the County of Wellington for pay equity purposes under the Pay Equity Act, R.S.O. 1990, c. P.7.

[2] Butler, Spencer and Leith are three of many women who have provided day care for children in their own homes under a contractual arrangement with the County of Wellington. The matter now before the court was set in motion back in December 1994 when Ms. Butler first asked the Pay Equity Office to determine that she was an employee of the County for the purposes of pay equity. The majority decision of the Tribunal, October 25, 1999, confirmed an earlier finding by a Hearing Officer that Ms. Butler and other women who provided day care in their homes as part of the private home day care program of the County were employees of the County for the purposes of the Pay Equity Act.

[3] In coming to that conclusion, the Tribunal began by defining its task (at para. 1) as "the characterization of the legal nature of the parties' working relationship for the purposes of pay equity", noting the absence of any definition of "employee" in the Act itself. I agree with para. 5 of the majority decision, that the Tribunal "should not be constrained by traditional notions of what employee status entails: that is, it is possible for the act to apply in novel situations so long as the evidence demonstrates that the position under scrutiny meets the legal tests". The majority decision, at paras. 14 and 15, identified the tests it would use to determine whether these day care providers were employees or independent contractors. It purported "to make use of the common-law tests"; the "total relationship test", as well as the "organization/integration test" and then added to those a consideration it called "the structure of the relationship" factor.

[4] The majority decision of the Tribunal concluded (at para. 14) that "under each of the two major common-law tests we find that the providers are employees".

[5] According to s. 4(1) of the Pay Equity Act"[t]he purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes." The Pay Equity Tribunal has a broad mandate to fashion policy in correcting systemic discrimination in the workplace. There can be no doubt that a purposive approach affords the Tribunal a wide latitude in concluding a group of service providers are employees in the context of the Act. Counsel for the Tribunal submits that the purpose of the Act is to capture all of the work that is of value to the employer. This is consistent with paras. 112 and 113 of the majority decision, concluding "the providers are essential to a key program of the County and are not merely accessory to it and are therefore employees of the County."

(b) The Standard of Review

[6] A workplace establishment under s. 4(2) of the Pay Equity Act is one in which there is both an employer and [an] employee. The workplace establishment is fundamental to the jurisdiction of the pay equity tribunal. Once its jurisdiction is established, the achievement of pay equity under the Act "is a highly specialized and integrated undertaking blending aspects of labour relations, compensation practices, employment law, and human rights": (Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 1488 (ON CA), 23 O.R. (3d) 43 at p. 55, 124 D.L.R. (4th) 82 (C.A.) (sub nom. Ontario Nurses' Assn. v. Ontario (Pay Equity Hearings Tribunal)). The unique and complicated nature of the Pay Equity Act, combined with a strong privitive clause in the Act and no statutory right of appeal from a decision of the Tribunal, invites great curial deference. In fashioning whether and how pay equity is achieved, the Pay Equity Commission and its adjudicative branch, the Tribunal, are insulated from judicial review by the standard of "patent unreasonableness". Because the Act does not define "employee", the Tribunal has considerable latitude in determining employment status within the context of the purpose of the Act. It is interpreting its constituent statute. The decision has a jurisdictional component, but the interpretation of the relationship between the parties has been left to the Tribunal by the legislator and it does engage the Tribunal's purpose and expertise.

[7] However, to say the Tribunal's decision on the issue of whether a person or group are "employees" must be patently unreasonable before the court will interfere may set the bar too high. In its analysis of the common law, the Tribunal's expertise, relative to the court, is not engaged in the same way such expertise is applied to other aspects of the complex statutory scheme.

[8] The Court of Appeal decision in Haldimand-Norfolk Regional Board of Commissioners of Police v. Ontario Nurses' Assn. (1989), 36 O.A.C. 276, [1989] O.J. No. 1995 (Div. Ct.), affd (1990), 41 O.A.C. 148 (C.A.) seems to be binding authority for the proposition that the determination of the composition of the workplace establishment is a decision within the jurisdiction of the pay equity Tribunal attracting the "patently unreasonable" standard of review. In my view, the case is distinguishable. The members of the police force in that case were all clearly employees who had an employer. The only question was the identification of their employer for the purposes of the Act. That issue is more a question of fact than a question of law. Determining whether a person is an employee, on the other hand, is always, ultimately, a legal conclusion. In all the pay equity cases cited by counsel in which the issue was identification of an employer, the issue arose in the context of how to apply the Pay Equity Act, not whether it applied.

[9] The evolution of the law since the Haldimand-Norfolk and O.N.A. cases has come to recognize a third standard of review between correctness and patent unreasonableness. Furthermore, different standards may apply to different types of decisions by a tribunal.

[10] Perhaps, the appropriate standard of review, at least on whether the service providers are "employees", should be the intermediate "reasonableness simpliciter" standard defined by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at p. 777, 144 D.L.R. (4th) 1. However, my opinion of the outcome in this case is not dependent on this view of the proper standard for review. In my view, the Tribunal decision is patently unreasonable and should be quashed.

(c) Was the Tribunal's Decision so Unreasonable it Ought to be Quashed?

[11] As stated in Southam, at p. 777 S.C.R.,

. . . the difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.

Continuing at pp. 778-79 S.C.R., the standard of "reasonableness simpliciter" is said to be closely akin to the standard appeal courts apply to findings of fact by trial judges, that is "clearly wrong". The court states"[b]ecause the clearly wrong test is familiar to Canadian judges, it may serve as a guide to them in applying the standard of reasonableness simpliciter". Patently unreasonable therefore demands something more than just clearly wrong.

[12] In applying the patently unreasonable standard, the court should not embark upon a review of the evidence or the Tribunal's factual findings. However, the court may consider whether the conclusions are rationally supported by the Tribunal's own factual findings and whether the Tribunal ignored evidence it ought to have taken into account. For reasons to follow, it is not necessary to address the County's contention that the Tribunal did not follow its own evidentiary ruling.

[13] I begin by expressing agreement with the preliminary determinations of the majority of the Tribunal that:

-- The "posting" provisions in ss. 1(2) and 32(2) of the Pay Equity Act should not be read as a limit on the definition of "employee", as there may be employees who never go to the employer's workplace;

-- The "workplace" provisions in s. 5 of the Act do not preclude isolated persons from being employees within the meaning of the Act;

-- Practical problems in making an adjustment to achieve pay equity under s. 9(3) of the Act, or in making adjustments to the employer's payroll, are not relevant to the threshold issue of whether service providers are employees; and

-- For in-home child care providers, the provincial licensee under the Day Nurseries Act, R.S.O. 1990, c. D.2 is the County, rather than the individual providers. This, in turn, casts some responsibility on the County to monitor individual homes to ensure compliance with numerous regulations under the Day Nurseries Act. The relevant consideration is the degree and nature of control by the County, regardless of the reason, in this case a statutory duty. The majority of the Tribunal did not allow the external statute (the Day Nurseries Act) to govern or resolve the issue before the Tribunal. It merely considered its implications in context as one factor, albeit a significant one.

[14] I do not propose to review every conclusion of the Tribunal with which I disagree, but the following will highlight some of the fundamental conclusions I find to be wrong on the face of the decision.

[15] The process for selecting providers, described in paras. 31 to 33 of the majority decision, does not lead to any logical inference the providers are employees. In fact, it more logically describes a contract for services, rather than a contract of service. Little weight ought to be given this factor in isolation, but the majority's conclusion that the selection process "has more in common with employment recruitment" is merely a conclusion stated as a reason and a preview of its result-driven analysis that follows.

[16] The majority states it did "not attach much weight" to the "Acknowledgement of Agreement" entered into between the County and the providers. It ignored the fact these agreements were generally signed on an annual basis, a fact seemingly inconsistent with ongoing employment status. It expressed no valid reason at law for essentially disregarding a plain and unambiguous single-page agreement in which the provider specifically acknowledged she was an independent contractor. Paragraph 2 of the agreement reads:

I acknowledge and agree . . .

2. That I am an independent contractor willing to offer my services as a day care provider provided that the time of performing such services is agreeable to me, but under no circumstances shall I be deemed to be an agent or employee of any person and no deductions shall be made from any fees paid to me for the services I shall perform and in particular, there shall be no deductions for Income Tax, Workmen's Compensation, Canada Pension Plan or Unemployment Insurance.

There can be no doubt the parties had a clear understanding of their legal relationship, and significant weight ought to have been accorded the agreement. It is in plain language, contains no fine print and is not, on its face, oppressive, unfair or difficult to understand.

[17] Providers claimed independent contractor status on their tax returns, representing themselves as self-employed. The providers' representation to Revenue Canada that they were self-employed may not be determinative of the issue, but it is wrong to dismiss it out of hand as a factor to be considered.

[18] The majority Tribunal confirmed, at para. 40 of its decision, that providers were required to hold liability insurance for themselves because they were not covered by the County's insurance. The reason for disregarding the usual assumption that liability insurance tends to indicate independent contractor status is specious.

[19] The majority Tribunal's conclusion the providers were "regularly supervised" by home visitors employed by the County is a tenuous conclusion on its own findings of fact. There were 25 providers for every home visitor. Home visitors had many other duties and were in touch with the providers once a month or less. There is no reference to any evidence home visitors could discipline providers, or that they ever did, but the possibility is, nevertheless, cited as a reason for its finding "this degree of supervision amounts to a controlled work environment akin to an employment situation" (para. 74). This element of "control", essential to the conclusions of the majority of the Tribunal, seems to fly in the face of other established facts.

-- Providers were not required to take any minimum number of children referred to them by the County.

-- In addition to contracting with the County, providers offered child care services directly and simultaneously to private customers.

-- Providers determined the hours of care they were willing to provide and set their own hours of work.

-- Within those hours, providers were free to determine their own schedules, meal times, activities and rest periods, subject only to the statutory requirements of the Day Nurseries Act.

-- Providers were free to be engaged by other entities, contract with parents privately, contract with other municipalities and pursue personal activities during the same hours they were providing service, pursuant to their contract with the County.

-- Providers set their own house rules and policies.

-- Providers created and maintained their own business records, which they did not share with the County.

-- Providers were free to hire helpers, or not.

-- Providers were even free to choose persons to provide care in their absence, with the approval of the County and parent.

-- Providers were free to charge fees above and beyond that paid for by the County, such as late payment fees, overtime, fees for extra meals or snacks and fees for extra hours of care directly to the parents.

[20] The description of the billing and remuneration process in paras. 82 to 85 of the majority decision does not support its conclusion in para. 86. Rather, the billing and remuneration scheme described better fits with independent contractor status.

[21] Based on one anecdotal example, the majority concluded the ability to hire helpers should be given little weight because it was unprofitable in that instance. It is clear, however, that for other providers, the ability to hire helpers might have significant "entrepreneurial impact".

[22] The provider's ability to charge supplemental fees and expenses directly to parents, to take on additional children not referred to the provider by the County, to refuse to accept children, et cetera, should have been significant factors in favour of independent contractor status. No sound reasons are given for discounting or altogether ignoring these factors. Providers could look after subsidized children in more than one county at a time, and one of the respondents did so, as noted in para. 5 of the minority opinion. Surely, that supports the view the provider is an independent contractor, particularly when she is also offering the same service privately to other parents. This is important evidence ignored in the majority conclusion.

[23] The majority also ignored the evidence that Ms. Butler and Ms. Leith represented themselves as independent business persons in lobbying the provincial government in respect of other issues. See paras. 14 to 17 of the minority opinion.

[24] In my view, the Tribunal majority twisted the evidence to suit its conclusion. It stated bald conclusions as if they were reasons or facts. It ignored or irrationally discounted evidence that would lead to the conclusion the individuals were, in fact, self-employed independent contractors. The Tribunal majority used circular logic; for example, in paras. 87 to 89 in its analysis of hours of work. The reasoning is flawed on its face, illogical and not supported by the Tribunal's own findings of fact.

(d) Distinguishing the Decision from the Reasons

[25] The court must distinguish a review of the reasons from a review of the ultimate decision itself. It is the decision we are called upon to review.

[26] In this case, there is a readily identifiable group of women providing common services to the same municipal corporation. The municipality exercised a supervisory role, albeit mainly pursuant to a statutory duty imposed by the Day Nurseries Act. The service provided, child care, has traditionally been, and continues to be, female work. The services were provided on a continuous, ongoing basis. The service was an integrated part of a three-prong day care program of the municipality, as described in paras. 26 and following of the majority decision. The County represented to the community at large and to the individual parents that the in-home child care providers were part of its overall child care program and integral to that program.

[27] Given all this, the Tribunal might have articulated an expanded definition of "employee" or workplace establishment, consistent with its mandate under the legislation, which would include these particular women. It comes close to doing so in para. 112 of the majority decision.

[28] Paragraph 112 reads as follows:

112. It is our view that this test [the organization/ integration test] has significant value in the context of pay equity. In pay equity, the basic mechanism used to achieve the object of the Act is to subject all positions within a work force to a review and comparison of value, so that those employed in the positions can benefit from its application. Accordingly, a meaningful test for employee, in the context of the Act, is one that is inclusive of all the positions which are, in fact, integral to the work of the employer. Adopting such a purposive approach to the interpretation of employee leads us to conclude that the organization/integration test is particularly pertinent in the pay equity context.

(Emphasis added)

[29] The approach described in this paragraph of the decision would create a definition of "employee" excluding only volunteers and the most casual of independent contractors.

[30] However, the court must accept that the Tribunal applied the test it said it was applying. In that regard, para. 112 must be read in conjunction with paras. 6, 14, 15 and the last sentence of para. 118, which read as follows:

6. We agree with counsel for the County that the Act does not provide wage discrimination redress for all women working in traditionally female sectors, but only to those working women who are employees in job classes covered by the Act. Merely because child-care has traditionally been, and continues to be, female work, does not on its own justify a finding that the providers are employees. We must be otherwise satisfied that the providers are employees.

7. In light of the very general language in the Act with respect to the definition of employee, we find it appropriate to make use of the common law tests. We accept counsel for the County's recommendation that we review the evidence in light of the total relationship test. It is comprehensive and consists of a framework, based on principles developed over time, that can accommodate new circumstances. It specifically recognizes that "no exhaustive list . . . can be compiled of considerations which are relevant . . . nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases". We also briefly subject the evidence to the organization/integration test because we find it responsive to the pay equity context. Under each of the two major common law tests, we find that the providers are employees.

(Emphasis added)

15. The jurisprudence highlights the importance of the factual situation in each case and the parties therefore presented full and detailed evidence. The evidence is reviewed in light of the factors in the total relationship test. To that test, we have added one factor we consider important"the structure of the relationship" factor, in which we examine the selection process, the duration of the relationship, the contact and matters flowing from it.

16. . . . On the basis of the two most frequently used common law tests, we have held that the providers are employees and, therefore, it is unnecessary to explore the issue of dependent contractor in this instance.

(Emphasis added)

[31] The conclusion reached in applying the "organization/ integration" test is at least defensible. The "organization/ integration" test enunciated by Lord Denning in Stevenson Jordan & Harrison Ltd. v. MacDonald & Evans, [1952] 1 T.L.R. 101 at 111, 69 R.P.C. 10 (C.A.) has been adopted by Canadian courts, but not without qualification and limitation. As MacGuigan J. observed in Wiebe Door Services Ltd. v. M.N.R., 1986 6775 (FCA), [1986] 5 W.W.R. 450 at p. 459, [1986] 3 F.C. 553 (C.A.):

Lord Denning's test . . . has been misused as a magic formula . . . [T]he effect has been to dictate the answer through the very form of the question, by showing that without the work of the "employees" the "employer" would be out of business.

Had the Tribunal, nevertheless, adopted this test as the only test (or even a paramount test), its conclusion at para. 112 of the decision might be insulated from judicial review.

[32] However, the application of the "total relationship" test to the evidence in this case, even as modified in para. 15, leads overwhelmingly to the conclusion the providers are independent contractors, not employees. In limiting its analysis as it did, the Tribunal put itself in a position of trying to fit a square peg into a round hole. Considering the nature of the Pay Equity Act, the Tribunal had an ability to change the shape of the hole, but expressly chose not [to] do so.

[33] The decision on its face is patently unreasonable and ought to be quashed and the Review Officer's order revoked.

[1] B. WRIGHT J. (concurring in the result): -- I agree with the conclusion arrived at by Aston J.; however, I wish to state my reasons for coming to the same conclusion.

[2] Wellington moves for judicial review of a decision of the Pay Equity Hearings Tribunal. In a two-to-one decision, the Tribunal held that female persons who provide day care for children in their own homes are employees of Wellington [the "County"] and are therefore beneficiaries of pay equity legislation. Wellington submits that the Tribunal erred and that the providers are independent contractors and not employees and, therefore, the Pay Equity Act, R.S.O. 1990, c. P.7 does not apply to the providers.

[3] With respect to the standard of review of the Tribunal's decisions, counsel for Wellington submits that the standard is correctness. However, it is his position that the Tribunal's decision is simply wrong and must be quashed regardless of whatever standard of review is applicable.

[4] The individual respondents and counsel for the Tribunal argue that a determination of who comes within the provisions of the Pay Equity Act is a matter within the special expertise of the Tribunal and, therefore, the standard of review is patent unreasonableness.

[5] Counsel for the intervenor Attorney General submits that the determination of whether a person is an employee or an independent contractor is not within any special expertise of the Tribunal. Therefore, counsel says that the Tribunal should not be accorded the highest level of deference.

[6] Counsel for the Attorney General opts for an intermediate standard of deference which is reasonableness simpliciter as enunciated by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1.

[7] In my view, the question of whether a person is an employee or an independent contractor is a question of law. The Tribunal has no special expertise to determine that question.

[8] I am in agreement with Wellington's counsel that no matter what standard of review is applicable to the decision of the Tribunal, the decision is wrong in law and must be quashed.

[9] In coming to their decision, the majority of the Tribunal found it appropriate to use the common law test. At p. 8 of the decision the majority said:

. . . The evidence is reviewed in light of the factors in the total relationship test. To that test, we have added one factor we consider important"the structure of the relationship" factor, in which we examine the selection process, the duration of the relationship, the contract and matters flowing from it.

[10] The majority then organized their analysis under various headings. I propose to comment on some of the conclusions arrived at by the majority. I note that counsel for the County does not challenge the factual findings of the majority but submits these conclusions are not supported by the evidence.

[11] Paragraph 34 of the majority's reasons reads:

34. We find that this very extensive recruitment process has more in common with an employee recruitment and hiring process than it does with a process of engagement of an independent contractor. The County advertised widely for "applicants". This differed from the process involved when prospective contractors' proposals would have been assessed in terms of specifications, costs and fees. The assessment the County made of the applicant was whether her home was safe and in a good state of repair, whether the home visitor thought her attitude and approach were appropriate, and, if her health was adequate. It was not an assessment of her service or a product she was providing. This indicates a contract of service rather than a contract for services.

[12] I do not understand the conclusion. Specifically, I do not agree that the procedure used for recruiting providers"has more in common with an employee recruitment and hiring process than it does with a process of engagement of an independent contractor".

[13] When a provider was selected, the provider was required to sign an "Acknowledgment of Agreement". One of the provisions stated that the provider agreed that she was an independent contractor. The majority stated in para. 37"We do not agree that a characterization of their relationship imposed unilaterally by one party amounts to a joint expression of intention." In my view, this statement is wrong in law. Where the words in an agreement are unambiguous, the parties intend the words to have their normal meaning. When the providers agreed they were "independent contractors", there could have been no doubt as to the parties' intentions.

[14] The practice was for the providers to file their income tax returns as self-employed persons operating their business, and they were able to claim all expenses related to providing home care. Revenue Canada sanctioned tax returns completed on this basis and each year gave a training session for providers on how to complete their income tax forms. The majority stated in para. 39". . . we give little weight to the fact that the income tax returns indicated that the providers were self- employed". I do not understand why these facts garnered "little weight" when, in my view, they should have been given considerable weight.

[15] Paragraph 40 reads:

40. Providers were required to hold general liability insurance as they were not covered by the County's insurance. While ordinarily the assumption of liability insurance would tend to indicate independent contractor status, it does not influence our decision because it was a condition of being engaged as a provider set by the County and flowed from the unilaterally designed contract.

[16] I do not understand why this fact would not have a bearing on a decision maker. It is unusual for an employee to have liability insurance related to employment.

[17] Paragraph 41 reads:

41. In light of the selection process utilized by the County and the continuous and indeterminate duration of the relationship, the structure of the relationship factor indicates that the providers are employees. We do not attach much weight to the contract, the providers' income tax status, insurance or records, for the reasons given.

[18] I have difficulty surmising how the weight of the evidence could reasonably support the majority's conclusion.

[19] Paragraph 47 says:

47. Unlike most arrangements where an agency pays an independent contractor for a service to be rendered to its clients, the County did not contract for general service to be offered to its clients on an as-needed basis, but rather investigated and "matched" each placement individually. The County also guided, approved and controlled the actual arrangements between provider and parent in a manner consistent with its on-going management and monitoring of the placement, highlighting its supervisory role.

[20] The County needed persons to provide day care service in their homes. I see little difference in seeking a service from an independent contractor. The majority has misconstrued the facts.

[21] Paragraph 63 states:

63. We find that while carrying out the daily care under their own initiative, the Respondents still operated within the context of County requirements, used County forms and provided requested or required information to the home visitors. Even in this aspect of their work, the on-going relation with the County is very evident. Where the county was involved to a greater degree with children with special needs, the demands for carrying out County instructions increased.

[22] Although the County certainly had input into the work of providers, I suggest that on a daily basis providers had a great deal of independence as to activities involved in looking after the children. The majority appears to have diminished the providers' independence and emphasized "the on-going relation with the County".

[23] Paragraph 65 says:

65. The level of monitoring and supervision at the home visits was significant. At the visits, the home visitor observed the children, ensured provider compliance with the rules and policies, and mentored and taught the provider. We consider that these visits were supervisory in nature and were reasonably frequent, given that the supervision was also on-going through regular phone contact.

[24] The evidence disclosed that a home visitor would call on a provider less than once per month during a year. It was difficult to determine who called whom but a number of telephone calls would be [made] to set up visits, and providers called the home visitor as well as the home visitor calling the providers. To conclude that "[t]he level of monitoring and supervision at the home visits was significant", and that "these visits . . . were reasonably frequent", is not supported by the evidence.

[25] Paragraph 68 states:

68. We find that the files kept on the providers demonstrate that, even though the home visitor was not on site on a daily basis, she carried out a degree of supervision and coaching of the provider not normally associated with the monitoring of an independent contractor. The degree of overlap that existed between the work of the home visitor and that of the provider, constitutes a continuum of activity more likely to be found in an employment relationship than with an independent contractor.

[26] The degree of supervision of the work of an independent contractor depends on the work being performed by the independent contractor and the level of trust which has been developed between the independent contractor and the purchaser of the service provided. I suggest that the supervision of providers undertaken by the County is a far cry from the type of supervision to which most employees are subjected.

[27] Paragraph 74 reads:

74. We find that the job description and the pay equity position questionnaire confirm that the providers were regularly supervised in their work. While on a day-to-day basis the providers planned and carried out their daily routine, they did so in the context of a full home day care program and were subject to the on-going monitoring, supervision, and potential discipline of the home visitor. We find that this degree of supervision amounts to a controlled work environment akin to an employment situation.

[28] In my view, the conclusion is not supported by the evidence. There may be some employees who would enjoy such little supervision but I expect most conscientious employees would feel that, with so little supervision, the employer is not really interested in the performance of the employee.

[29] The first sentence in para. 81 says"if one party determines the amount of compensation and how it is to be paid, it is an indication of control over the other." This is an incorrect statement and is an indication of nothing. An employee will take a job at a certain salary or refuse the position because the salary is too low. An independent contractor will quote to provide a service. There may be some negotiation as to price but at some point the purchaser of the service will either have to pay what the independent contractor wants or try to get another contractor to perform the service at less cost.

[30] The providers submitted invoices for payment for their services. The County reviewed the invoices for accuracy. In para. 86, the majority concludes:

The method of calculating the hours worked, verifying the accuracy of provider accounts and the approval process had much in common with a time-clock and payroll system.

In my view, the comparison is not reasonable and, therefore, the conclusion is flawed.

[31] Paragraph 88 states:

88. Once the provider had committed to full-time or part-time care, we find that she had less control of her time than most employees, and certainly less than independent contractors. This is because she was required to provide the care until all of the parents had picked up their children. Parents could be delayed for many reasons, including the demands of their job or school schedule, travel or other unexpected delays.

[32] I do not understand how the majority arrived at this conclusion. Most employees have set hours of work to perform their job functions. The providers have control over when they wish to have children to look after and when they do not. How a provider uses her time with the children is within her discretion with no specific job functions.

[33] In para. 90, the majority concludes:

. . . the County exercised a great deal of control and that the control factor indicates that the providers are employees of the County.

This is an incorrect conclusion which is not supported by the evidence. I suggest that the majority of employees are far more controlled by their employers than the level of control by the County over providers.

[34] Paragraph 96 reads:

96. The capacity to hire helpers factor in this context does not indicate independent contractor status.

I suggest that the correct conclusion is the exact opposite. Independent contractors hire helpers as required. Employees loaded down with work do not have the luxury of hiring helpers.

[35] Because providers assume little financial risk, the majority concludes in para. 100 that the providers are employees. Of what relevance is the financial risk? I suggest there are a great number of small independent contractors who do not have a large investment in their business but their main asset is their skills.

[36] Part of para. 102 states:

102. . . . As the providers really were "one-person" operations, the management of others was not relevant, highlighting the limits of their actual and potential activity and that they were not independent contractors.

I suggest that a good number of independent contractors work alone and may from time to time employ helpers.

[37] Paragraph 106 reads:

106. We agree that the potential to care for private children in addition to County children indicates an opportunity for limited economic independence from the County. That is, if the County did not place the maximum number of children with them, then they could seek private children up to that limit. As well, they could set the rates for the care of the private children and perhaps earn slightly more. To the extent that they were effective in advertising and attracting private children, up to the maximum, they exercised the opportunity for some economic independence. We find it stretches the ordinary notion of commercial profit to suggest that this amounts to "profiting" from sound management and therefore do not attach much weight to this factor.

[38] Why does the majority"not attach much weight to this factor"? The independence of the providers has all the earmarks of an independent contractor. Certainly, employees have very little economic independence to be able to moonlight for extra income. The conclusion arrived at in this paragraph points up the tendency throughout their reasons for the majority to minimize the characteristics of independent contractors.

[39] Paragraph 112 states:

112. It is our view that this test has significant value in the context of pay equity. In pay equity, the basic mechanism used to achieve the object of the Act is to subject all positions within a work force to a review and comparison of value, so that those employed in the positions can benefit from its application. Accordingly, a meaningful test for employee, in the context of the Act, is one that is inclusive of all the positions which are, in fact, integral to the work of the employer. Adopting such a purposive approach to the interpretation of employee leads us to conclude that the organization integration test is particularly pertinent in the pay equity context.

[40] In my view, the majority has confused valid pay equity principles with the criteria for determining who is an employee. Not everyone hired by the County to contribute value to the County or whose work for the County is integral can be considered an employee.

[41] Paragraph 113 reads in part:

. . . The providers' work is parallel to the work of the other day care workers on staff at the County's own day care centre and is subject to the same regime, which licenses both programs. There is no doubt that the providers are essential to a key program of the County and not merely accessory to it, and are, therefore, employees of the County.

This is faulty comparison because the persons who operate day care centres for the County are independent contractors.

[42] Having reviewed the majority's conclusions under the various headings, I find that in most of the conclusions the reasoning is flawed. The conclusions are illogical and are not supported by the evidence.

[43] I agree with the submission of Wellington's counsel that the majority "stretched" the evidence at every point in favour of finding that the providers are employees and disregarded or minimized the evidence supporting a finding that the providers are independent contractors.

[44] In contrast, the dissenting Tribunal opinion finding that the providers are independent contractors is well reasoned and logical, and her conclusions are supported by the evidence.

[45] For the reasons and conclusions set out in the dissenting opinion, I agree that the providers are independent contractors and not employees of Wellington.

[46] In the result, the Tribunal's decision is quashed and the Review Officer's order is revoked.

Application granted.