A-492-04
A-493-04
A-494-04
A-491-04
BETWEEN:
and
Respondent
A-492-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-493-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-494-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, on December 12, 2005.
Judgment delivered at Ottawa, Ontario, on December 20, 2005.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Date: 20051220
Dockets: A-491-04
A-492-04
A-493-04
A-494-04
Citation: 2005 FCA 439
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
A-491-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-492-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-493-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-494-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] Despite the laudable efforts of the appellants' counsel, I have not been persuaded that the appeals should be allowed.
[2] The appellants' counsel did indeed attempt to distinguish his clients' situation from the situation that prevailed in Attorney General of Canada v. Tremblay, 2004 FCA 175. I recognize that there are certain factual differences between the two cases, but, in my humble opinion, they are not sufficient to exclude the application of the principles set out in Tremblay and in the underlying case law: see, inter alia, Charbonneau v. Canada (Minister of National Revenue - M.N.R.), [1996] F.C.J. No. 1337; Canada (Attorney General) v. Rousselle, [1990] F.C.J. No. 990; Livreur Plus Inc. v. Canada (Minister of National Revenue - M.N.R.), 2004 FCA 68; Vulcain Alarme Inc. v. Minister of National Revenue, [1999] F.C.J. No. 749; D & J Driveway Inc. v. Minister of National Revenue, [2003] F.C.J. No. 1784.
[3] For example, the appellants claim that they were working exclusively for those providing them with work, unlike in Tremblay, supra. The fact that the appellants had chosen to deal only with the companies Ambois Inc. and Entreprises forestières F.G. Inc. (the payors) does not in any way alter the nature of the overall relationship existing between them: see Vulcain Alarm Inc. v. Le Minister of National Revenue, supra. A contract for services does not lose this quality because the contractor limits offering his services to only a few work providers.
[4] The appellants also noted that, contrary to Tremblay, supra, what they referred to as their salaries was not determined artificially, without regard to their expertise and with the purpose of obtaining the number of unemployment stamps required to qualify for employment insurance benefits. I would agree with that and I do not doubt that the appellants believed that the work that they were doing qualified them for employment insurance benefits. But, what we have to look at are the circumstances and conditions surrounding the performance of the work, based on which - along with the parties intention - the nature of the overall relationship existing between them can be inferred.
[5] The appellants claim that they were subject to constant monitoring by the payors, who testified to the relationship of subordination existing between them and the payors. In support of their submissions they refer to a recent decision by our Court in 9041-6868 Québec Inc. v. Le Minister of National Revenue, 2005 FCA 334.
[6] I note in passing that our colleague, Décary J.A., refers to an excerpt from the book by Robert P. Gagnon, Le droit du travail du Québec, Éditions Yvon Blais, 2003, 5th ed., at pages 66 and 67. In that excerpt, the author explains the evolution of the concept of subordination in Quebec civil law and perceives monitoring quality of work as an indication that an employee is supervised. It is well settled in our case law that the control over quality of the work, like that of result, does not necessarily create a relationship of subordination. Indeed, they should not be confused with the control over the performance of the work: see Livreur Plus Inc. v. Canada (Minister of National Revenue - M.N.R.), supra, at paragraph 19; Charbonneau v. Canada (Minister of National Revenue - M.N.R.), supra, at paragraph 10. With that necessary clarification, we will now see what the evidence shows with respect to the notion of control over the performance of work by the appellants.
[7] The evidence establishes that the appellants' wood cutting was carried out on private lots, in populated municipal territory, where municipal by-laws vary from one municipality to another and where the imposed environmental standards are very strict, much more strict than for cutting in the vast public forests: see the testimony of Marc Gilbert, appellants' record, vol. 1, pages 106 and 107. There are development plans to respect, regeneration of the forest to protect: ibidem, pages 107 and 108. The control in question here is a control of quality and result of the work as well as municipal by-laws and environmental standards. As Mr. Justice Tardif states at paragraph 47 of his decision, that type of control is not the exclusive prerogative of those performing a service contract.
[8] With respect to the juridical relationship between the appellants and the payors, the judge found it determinative that: the appellants owned the skidder (paid $24,000) required to perform the work; they assumed all the costs relating to the use, maintenance and repair of the skidder; they paid their travel costs; they were paid in accordance with their productivity so that their revenues could fluctuate in accordance with breaks, the costs of repairs, or loss of productivity. Finally, the appellants assumed the cost of liability insurance, a fact that is much more characteristic of a contract for services than an employment contract where the employer assures and assumes responsibility for its employees' actions.
[9] In short, I cannot say that Tardif J.'s finding was based on errors of law which would command or justify our intervention. His findings of fact are supported by the evidence and the inferences that he drew therefrom are not unreasonable.
[10] As I said in Attorney General of Canada v. Tremblay, supra, the forest workers earn their living arduously over the forestry activity period and attempt to ensure themselves a revenue through employment insurance during the forced period of inactivity, as they are entitled to do. But to accomplish this, they must meet the requirements of the Employment Insurance Act, S.C. 1996, c. 23. Our role consists in and is limited to ensuring that the legal requirements are met and, hence, to applying the law.
[11] For these reasons, I would dismiss the appeal in dockets A-491-04, A-492-04, A-493-04 and A-494-04. I would grant the respondent his disbursements in each of these dockets, but without any other costs.
"I concur.
Marc Nadon J.A."
"I concur.
J.D. Denis Pelletier J.A."
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-491-04, A-492-04, A-493-04 and A-494-04
STYLE OF CAUSE: JACKY AND RICHARD DESBIENS v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 12, 2005
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
PELLETIER J.A.
DATE OF REASONS: December 20, 2005
APPEARANCES:
|
|
FOR THE APPELLANTS
|
|
Nancy Dagenais |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Chicoutimi, Quebec
|
FOR THE APPELLANTS
|
|
Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT
|
Date: 20051220
Dockets: A-491-04
A-492-04
A-493-04
A-494-04
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
A-491-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-492-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-493-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-494-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The appeal is dismissed in dockets A-491-04, A-492-04, A-493-04 and A-494-04. However, the respondent is entitled to his disbursements in each of these dockets.
"Gilles Létourneau"
J.A.
Certified true translation
Kelley A. Harvey, BCL, LLB