Category Archives: Student/Education

Employement, Employment Insurance Act, Income Tax Act, Student/Education, Tax Court of Canada

Is a Graduate Student an Employee?

1 Comment
Download PDF

Is a Graduate Student an Employee?

Rizak v. M.N.R., 2013 TCC 273

At issue in this case was whether a graduate student, a Ph.D. student, was an employee of the University s/he was a student at.  This determination was in the context of the Employment Insurance Act.

The decision requires the University to carefully consider the structuring of its graduate programs and funding so as not to cause the graduate student to be an employee receiving a salary rather than a student receiving assistance.

The TCC referred to past decisions in relation to Post-Doctoral Fellows, and the nature of their relationship with the Universities that provided them with funding.  The case law on this point was split.  In Bekhor v. MNR, 2005 TCC 443, the TCC held that a postdoctoral fellow was not an employee, but that the nature of the relationship was that of advanced student and professor (thus the financial assistance was not remuneration for services rendered).  Contrast this to Chabaud v. The Queen, 2011 TCC 438, where the TCC held that a postdoctoral fellow was an employee on the basis that, unlike a student, on tuition is paid or payable.  The TCC here was unable to find a factual or legal basis to distinguish the two decisions and proceeded to prefer the decision in Bekhor.

In Caropreso v. The Queen, 2012 TCC 212, Justice Woods set out the test to be applied in cases of postdoctoral fellows in order to distinguish between funding as student vs compensation as employee:

The root of the difficulty is that payments to postdoctoral research fellows often have dual elements. The payments further the education of research fellows and they also provide compensation for work performed. If the payments are received by virtue of employment, this takes precedence. However, in making this determination, it is relevant to consider the dominant characteristic of the payments, whether it is compensation for work or student assistance.

The TCC held that this test is equally applicable to Doctoral Students as to Postdoctoral Fellows.  However, unlike graduate students, postdoctoral fellows are not in pursuit of another degree but are obtaining further experience.  This pursuit of degree purpose differentiates the two cases.     In Hammell v. MNR, [1994] TCJ No. 921, a masters student was held not to be engaged in insurable employment.  The same conclusion was reached in Hospital for Sick Children v. MNR, [1993] TCJ No. 388, a case involving a masters student, and in Nabet v. MNR, [1999] TCJ No 79, in case of a Doctoral Student.  However, in Charron v. MNR, [1994] TCJ No. 47, the master’s student was held to be an employee but in this case the employment was prior to the period of study beginning. [see also Huang v MNR, 2012 TCC 81].

In this case, the TCC held that the dominant character of the stipend was compensation for work performed, making him an employee.  Here the money was not received by virtue of being accepted as a doctoral student, or some “form of no-strings-attached bursary or scholarship”.  If he would have stopped working in the lab, he would have stopped receiving the money. This was different than the cases of Hammell, Hospital for Sick Children and Nabet where the students developed their own research ideas and pursued them under the mentorship and supervision of their respective professors.  The court stated that if the university “has structured its doctoral programs in such a way as to essentially require students to be employed by the university, that would not, in my view, change the fact that they are employees”.

The court considered the Income Tax implications and stated that amount received ought to have been included in income as the ITA excludes amounts received in respect of, in the course of or by virtue of employment from scholarship and fellowship payments.

Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3

If you like this website, please share it with others.

Back To Top OR Home

056, 065, Canada Pension Plan, Employement, Employment Insurance Act, Income Tax Act, Student/Education, Tax Deduction

Caropresco v The Queen, 2012 TCC 212

Leave a comment
Download PDF

What is the Nature of Payments Made to Post-Doctoral Fellows, and When Are They Taxable?

Caropresco v The Queen, 2012 TCC 212

The issue was whether  payments made to a post-doctoral fellow by the Ottawa Research Institute for research conducted is properly included in the income of the fellow.

The taxpayer was engaged by the University of Ottawa and the Ottawa Research Institute, and was paid amounts by them in furtherance of her research.  The amounts for the latter, but not the former, engagement were included in her income.

The court stated that the inclusion of one payment and not the other doesn’t impact the proper tax treatment of the payments under consideration, as the proper tax treatment depends on the legislation and relevant jurisprudence not the actions of the minister.

The court referred to the recent decision of the TCC in Huang v The Queen, 2012 TCC 81, where similar facts resulted in a decision in favour of the taxpayers.  The consideration was whether payments were received on account of a fellowship pursuant to s 56(1)(n) or on account of research grant within the meaning of s 56(1)(o). It was decided that the payments were not on account of a grant. The issue remains whether the payments are subject to the scholarship exemption in s 56(1)(n)(ii), which the court concluded they did.

In this case, unlike the one previous to it, the Minister was arguing that the payments were employment income, and as such expressly excluded from 56(1)(n).  The court refereed to Chabaud v The Queen, 2011 TCC 438, where the issue was raised and the court held that the fellowship payments were taxable as employment income.

The court stated that paragraph 65(1)(n) distinguished between (1) payments made in the course of business or employment, and (2) payments made to provide financial assistance to further the recipient’s education.  Only the latter type of payments are potentially eligible for the exemption under 56(1)(n)(ii) and 56(3).

The court stated that since the Minister did not argue that the taxpayer was an independent contractor (thus payment received in the course of business), it must show that (a) the taxpayer was an employee of the entity from which the payment was received, and (b) the payments were not assistance for education.

With regards to payments for education assistance, the case law is divided.  The court referred to Chabaud, supra, and the decision in Bekhor v MNR, 2005 TCC 443, where it was decided that a post-doctoral fellow was not an employee for purposes of the Employment Insurance Act and Canada Pension Plan because the payments were in the nature of financial assistance for education.

The root of the problem with the payment is that in relation to post-doctoral research fellows they have dual elements.  They both further the education of research fellows and they provide compensation for work performed.  One needs to consider the dominant purpose of the payments.

In this case, the court concluded that the primary aspect is compensation for work performed, as with respect to the Ottawa Research Institute the educational element was subsidiary.  This was because the course of the funding provided was research and not post-doctoral education.

The next issue was whether the taxpayer was an employee, and held that there was an employee relationship.  This issue would not need to be decided as the Crown argued on the basis of both contract of  Or contract for services.

– Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3