Federal Court of Appeal Decisions

Date: 19971120

Docket: A-105-97

CORAM:      STONE J.A.

         STRAYER J.A.

         LINDEN J.A.

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

     Applicant

     - and -

THE MINISTER OF NATIONAL REVENUE and LORNE GRIFFITH

     Respondents

     Date: 19971120

     Dockets: A-106-97

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

     Applicant

     - and -

THE MINISTER OF NATIONAL REVENUE and LORNE GRIFFITH

     Respondents

Heard at Montreal, Quebec, on Thursday, November 20, 1997

Reasons for Judgment delivered from the Bench at Montreal, Quebec, Thursday, November 20, 1997.

REASONS FOR JUDGMENT OF THE COURT BY:      STONE J.A.

Date: 19971120

Docket: A-105-97

CORAM:      STONE J.A.

         STRAYER J.A.

         LINDEN J.A.

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

     Applicant

     - and -

THE MINISTER OF NATIONAL REVENUE and LORNE GRIFFITH

     Respondents

     Date: 19971120

     Dockets: A-106-97

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

     Applicant

     - and -

THE MINISTER OF NATIONAL REVENUE and LORNE GRIFFITH

     Respondents

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Montreal, Quebec, Thursday, November 20, 1997)

STONE J.A.

[1]      These are two section 28 applications to review and set aside judgments of the Tax Court of Canada of January 14, 1997. They were heard together. The judgment below upheld the Minister's determinations of June 16, 1995 that Canada Pension Plan contributions and unemployment insurance premiums were payable on earnings received by the respondent Griffith from the applicant for the period December 21, 1993 to April 22, 1994.

[2]      The Minister's determinations were made on the basis of section 34 of the Canada Pension Plan Regulations, C.R.C. 1978, c. 385¹ and paragraph 12(g) of the Unemployment Insurance Regulations, C.R.C. 1978, c. 1576², respectively.

[3]      The relevant facts are fully set forth in the reasons for judgment of the learned Tax Court Judge, in which he recites from a partial agreed statement of facts. The two appeals before the Tax Court were heard together on common evidence. The parties also agreed "that the CPP should follow the course of the UIC appeal". That too is reflected in the reasons of the Tax Court Judge.

[4]      After reviewing the evidence and concluding that the applicant had acted as a "placement agency", Watson, D.J.T.C.C.. concluded that the respondent Griffith performed his services under the direction and control of the client, stating at pages 9-10 of his reasons:

From the Worker's point of view, he was sent to perform the services for which he was qualified to the Appellant's client, Pitney Bowes. He was told what to do, where to work, and what was expected from him by Pitney Bowes; he had to have is time-sheet signed by Pitney Bowes' manager in order to be paid, he had to notify Pitney Bowes if he was absent from his work place, he had to work during the Pitney Bowes office hours and he had to be available to work overtime. He was aware that he could be terminated if Pitney Bowes was not satisfied with his services, but apparently was not told that he had "the sole and absolute discretion as to the manner in which" his services were to be performed. He first had to obtain the signature of the Pitney Bowes manager before submitting his time-sheet to the Appellant for payment.

In this appeal, the Appellant had the onus of establishing on a balance of probabilities that the Minister's determination was ill-founded in fact and in law. Taking into consideration all of the circumstances, including the testimonies, admissions, documentary evidence, submissions of Counsel and available case law, I am of the view that the Appellant has not succeeded in this onus. I am satisfied that during the period in issue, the Worker's terms and conditions of service and the nature of work done were similar to someone employed under a contract of services; that he was placed by the Appellant to perform services for and under direction and control of its client, Pitney Bowes; and that he was remunerated by the Appellant "for the performance of such services". Accordingly, the appeals are dismissed and the Minister's determination dated June 16, 1995 is affirmed.

[5]      The applicant asserts error on the part of the Tax Court Judge in finding that the respondent Griffith was "placed by the Appellant to perform services under the direction and control of its client"; in not construing the word "control" to mean "the right to give orders and instructions to the employee regarding the manner in which the work is carried out"; in not concluding that the respondent Griffith was not "placed" by the applicant "to perform services under the Pitney Bowes' right to give orders and instructions regarding the manner in which to carry out his work"; and in not holding that section 12(g) of the Unemployment Insurance Regulations "does not reach a highly skilled or professional worker such as Mr. Griffith". Alternatively, the applicant contends that section 12(g) of the Unemployment Insurance Regulations and subsection 34(1) of the Canada Pension Plan Regulations are ultra vires the regulation-making authority conferred by paragraph 4(1)(c) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1,³ and paragraph 7(1)(d) of the Canada Pension Plan, R.S.C. 1985, c. C-8⁴. The applicant has now served in each matter a constitutional question pursuant to section 57 of the Federal Court Act. It is clear, however, that neither of the questions posed attacks the constitutionality of paragraph 4(1)(c) of the Unemployment Insurance Act or paragraph 7(1)(d) of the Canada Pension Plan, but merely repeats the applicant's contentions that section 12(g) of the Unemployment Insurance Regulation and subsection 34(1) of the Canada Pension Plan Regulations are ultra vires the authority conferred by these respective paragraphs.

[6]      We are not persuaded that any reviewable error was committed by the Tax Court Judge, either in the findings he made on the record before him or in his construction of section 12(g). Nor are we persuaded on that particular record that the terms and conditions under which the respondent Griffith was employed and the remuneration paid were not "analogous" to a contract of service within the meaning of subsection 34(1).

[7]      This leaves for consideration the argument that the two sets of regulatory provisions go beyond the statutory authority conferred by paragraph 4(1)(c) of the Unemployment Insurance Act and paragraph 7(1)(d) of the Canada Pension Plan, respectively - in other words, that they are ultra vires. The respondent Minister objects to this argument being raised in this Court on the basis that it was not raised in the Court below, and that the Minister is therefore deprived of the opportunity to adduce relevant evidence.

[8]      Assuming without deciding that the issue is properly before us, in our view the provisions of section 12(g) and subsection 34(1) fall well within the conferred statutory authority. Those provisions, in our view, are consistent with the powers so conferred, and indicate that the respective regulatory authority has implicitly concluded that the activities of the person who is placed by an agency to perform services for and under the direction and control of an agency's client, and the nature of the work done, are "similar" or "analogous" to services performed under a contract of service. Furthermore, the applicant has failed to demonstrate to us how precisely section 12(g) of the Unemployment Insurance Regulations and subsection 34(1) of the Canada Pension Plan Regulations do not meet the statutory criteria set out in paragraphs 4(1)(c) and 7(1)(d), respectively.

[9]      Both section 28 applications will therefore be dismissed.

     "A.J. STONE"

     J.A.

     FEDERAL COURT OF APPEAL

Date: 19971120

Docket: a-105-97

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

- and -

THE MINISTER OF NATIONAL REVENUE and

LORNE GRIFFITH

     Date: 19971120

     Docket: A-106-97

BETWEEN:

SILVERSIDE COMPUTER SYSTEMS INC.

- and -

THE MINISTER OF NATIONAL REVENUE and LORNE GRIFFITH

    

     REASONS FOR JUDGMENT

    

__________________

¹      34.(1) Where any individual is placed by a placement or employment agency in employment with or for performance of services for a client of the agency and the terms or conditions on which the employment or services are performed and the remuneration thereof is paid constitute a contract of service or are analogous to a contract of service, the employment or performance of services is included in pensionable employment and the agency or the client, whichever pays the remuneration to the individual, shall, for the purposes of maintaining records and filing returns and paying, deducting and remitting contributions payable by and in respect of the individual under the Act and these Regulations, be deemed to be the employer of the individual.
     (2) For the purposes of subsection (1), "placement or employment agency" includes any person or organization that is engaged in the business of placing individuals in employment or for performance of services or of securing employment for individuals for a fee, reward or other remuneration.

²      12. Employment in any of the following employments, unless it is excepted employment under subsection 3(2) of the Act or excepted from insurable employment by any other provision of these Regulations, is included in insurance employment:          ...          (g) employment of a person who is placed in that employment by a placement or employment agency to perform services for and under the direction and control of a client of the agency where that person is remunerated by the agency for the performance of such services.

³      4.(1) The Commission may, with the approval of the Governor in Council, make regulations for including in insurance employment          ...          (c) any employment that is not employment under a contract of service if it appears to the Commission that the terms and conditions of service of and the nature of the work performed by persons employed in that employment are similar to the terms and conditions of service of and the nature of the work performed by persons employed under a contract of service;

⁴      7.(1) The Governor in Council may make regulations for including in pensionable employment          ...          (d) the performance of services for remuneration if it appears to the Governor in Council that the terms or conditions on which the services are performed and the remuneration is paid are analogous to a contract of service, whether or not they constitute a contract of service;