Vancouver, BC – The Tax Court of Canada has ruled, in the case of James Burns Support Society v. M.N.R., 2025 TCC 102 (CanLII), that a caregiver who provided overnight and daytime support to a man with complex special needs was an employee of a non-profit society, rejecting arguments that he was an independent contractor for part of his work.
An employee works for an employer who controls their hours, pay, and job duties, and who automatically deducts taxes, EI, and CPP from each paycheque. These are regular payroll deductions that most workers see on their pay stubs. EI deductions fund income support if a person becomes unemployed or takes certain leaves, while CPP deductions help build up a government pension and other benefits available in retirement or in cases of disability.
An independent contractor is self-employed, sets their own business terms, invoices for their services, and is responsible for paying their own taxes and contributions. Whether someone is legally considered an employee or contractor affects their tax obligations and access to benefits.
The James Burns Support Society had appealed decisions by the Minister of National Revenue that found caregiver Dennis De Ramos was in “insurable employment” under the Employment Insurance Act and “pensionable employment” under the Canada Pension Plan from July 1, 2020, to May 31, 2023.
Under Canadian law, “insurable employment” means work that requires Employment Insurance (EI) premiums to be deducted from a worker’s pay and matched by the employer. EI provides temporary financial help to people who lose their jobs or take certain types of leave.
“Pensionable employment” means work where Canada Pension Plan (CPP) contributions must be deducted and matched by the employer, building up retirement and disability benefits for the worker.
The Society maintained that Mr. De Ramos was a contractor during his night shifts and therefore not subject to EI or CPP deductions for that portion of his work.
James Burns, for whom the Society was established in 2011, requires 24-hour care. He has schizophrenia, attention deficit hyperactivity disorder, autism, and is deaf and mute, communicating through a device and sign language. His mother, Susan Burns, runs the Society, hires caregivers, and oversees all staffing.
Mr. De Ramos began working for the Society in 2011 as an employee. In 2017, following funding concerns, the Society began classifying his night shifts as contract work while keeping his day shifts as employee work. The night shift ran from 9 p.m. to 9 a.m., and its duties included keeping Mr. Burns “safe and comfortable” while he slept. Ms. Burns testified that night and weekend shifts were reclassified as “respite” work and paid on a per diem basis following advice from Community Living BC.
From 2019, Mr. Burns regularly slept at the De Ramos residence during night shifts, which suited the caregiver’s family needs. In June 2022, Mr. De Ramos’ wife took over the night shifts, and the Society paid her directly. The arrangement ended in spring 2023 after Mr. De Ramos left his remaining day shift role.
At issue was whether Mr. De Ramos was an employee or independent contractor for his night shifts between July 2020 and June 2022. The legal test, as outlined in case law, considers both the parties’ intent and objective factors such as control over work, provision of tools, ability to hire helpers, financial risk, and opportunity for profit.
The Society argued that Mr. De Ramos had “full autonomy” in providing night care and that his wife’s later involvement amounted to subcontracting. The court rejected these points, finding that caregivers could only relocate Mr. Burns or change routines with Ms. Burns’ approval, and that Mr. De Ramos did not subcontract to his wife but rather ceased doing the shifts himself.
The Minister’s lawyers pointed to similar caregiver cases where courts distinguished between employee and contractor relationships. They argued that while caregiving can sometimes be structured as independent contracting, in this case the Society set hours, pay, and work location, leaving no real negotiation or financial risk for Mr. De Ramos.
Justice David Spiro found that the parties never shared an intent to change Mr. De Ramos’ status to contractor, and that objective factors—particularly the Society’s control over hours, tasks, and pay—supported an employment relationship. The court ruled that Mr. De Ramos remained an employee for both EI and CPP purposes throughout the disputed period and dismissed the Society’s appeals without costs.
The decision means the Minister’s original determinations from July 2024 stand, confirming the requirement to remit EI and CPP contributions for all of Mr. De Ramos’ work with the Society during the relevant period.
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