Date: 19990601
Docket: 98-924-UI
BETWEEN:
CITY OF MERRITT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LANCE THATCHER,
Intervenor.
Reasons for Judgment
Mogan, J.T.C.C.
[1] The issue in this appeal is whether the Intervenor, Lance Thatcher, was engaged in insurable employment as a result of his being a part-time firefighter for the City of Merritt in the Province of British Columbia. On July 20, 1998, Revenue Canada ruled that Lance Thatcher was employed as a firefighter under a contract of service and that his employment by the city of Merritt was insurable. The City of Merritt has appealed to this Court from that ruling and Lance Thatcher has intervened in the City's appeal.
[2] In its Notice of Appeal, the Appellant took the position that the Intervenor was not an employee of the City. In the Reply to the Notice of Appeal, the Respondent conceded the appeal on the basis that the Intervenor was not employed by the Appellant in insurable employment pursuant to paragraph 5(1)(a) of the Employment Insurance Act, S.C. 1996, c. U-I (the "EI Act") but was in excepted employment within the meaning of paragraph 5(2)(h) of the E.I. Act and Regulation 7(e). In his Notice of Intervention, the Intervenor claims to be an employee of the Appellant. In the Reply to the Notice of Intervention, the Respondent again concedes the appeal and states that the Intervenor was not employed by the Appellant. From the pleadings as summarized above, it can be seen that the Appellant and Respondent are on common ground in opposing the Intervenor's claim to employment status.
[3] At the commencement of the hearing, there were submissions by the parties concerning whether the Intervenor had status to intervene if the appeal was conceded and, if so, who had the onus of proof. In the special circumstances of this case, I decided that the Intervenor had status and had the onus of proof. The period under review is December 1, 1996 to November 30, 1997.
[4] The City of Merritt (population 8,000) is about 100 kilometres south of Kamloops on the intersection of three or four highways. It has a full-time salaried fire chief and approximately 30 volunteer firefighters who are divided into A Platoon and B Platoon. Each platoon is on call alternate weeks. Only the platoon on call would respond to a minor fire but, for a major fire, all firefighters would be called out. Firefighters are frequently called to motor vehicle accidents on provincial highways beyond the Appellant's city limits.
[5] The Intervenor became a volunteer firefighter in October 1996. He and the other firefighters attend a training session for two hours every Monday evening. Attendance at the training sessions is not required but it is important to learn firefighting procedures, rescue and first aid procedures and how to use the standard equipment. During the period under review, the Intervenor missed some but not many training sessions. He said that the firefighters were taught to follow these priorities: (i) save human life; (ii) suppress the fire; (iii) protect surrounding property; and (iv) protect themselves.
[6] Exhibit A-2 is a copy of the Appellant's by-law no. 1488 with respect to its Fire and Rescue Department. Schedule "B" to this by-law is a code of conduct with which every firefighter is required to comply but the code does not provide any penalty for non-compliance. Schedule "C" to the by-law shows the remuneration to be paid to members of the Appellant's Fire and Rescue Department according to their rank, years of service, and subjects completed in the certification program operated by the Justice Institute of British Columbia Fire Academy Volunteer Firefighters. The remuneration is expressed in dollars per hour and, for example, an ordinary firefighter's remuneration is set on the following scale:
|
Position |
Basic |
5 years + 5 subjects or 10 subjects |
10 years + 5 subjects or 15 subjects |
10 years + 10 subjects or 20 subjects |
|
Firefighter |
$10.50 |
$11.00 |
$11.50 |
$12.00 |
Schedule "C" has the following three footnotes which establish certain limits on the remuneration:
2. The Merritt Fire and Rescue Department members shall receive remuneration based on a minimum two-hour call out for all calls from 10 p.m. to 7 a.m.
3. Summer Weekend Standby shall commence in May (Victoria Day Weekend), until September (Labour Day Weekend) of each year. Remuneration for summer weekend standby shall be paid at a rate of $20.00 per day, per man. Maximum standby staff not to exceed five (5) members.
4. Rescue calls will only be paid when the response is inside municipal boundaries.
[7] As a volunteer firefighter, the Appellant wears a pager all of the time. He is not required to respond to a call on his pager. He may for any reason choose to ignore a pager call and his failure to respond will not affect his status as a firefighter. If he does choose to respond, he will be paid at his standard hourly rate from the time he responds until the time when the officer in charge will tell him to stand down. The Intervenor stated that, on average, about 10 or 12 volunteers would respond to a call but, if a call came in the middle of an ordinary working day (Monday to Friday), only two or three volunteers may respond. According to footnote 4 in Schedule "C" (quoted above), volunteers are paid for rescue calls only when the response is within the City boundaries. Accordingly, there is generally a lower response from volunteers when a rescue call is from outside the City.
[8] Exhibit A-3 contains some statistics. In 1997, there were 64 rescue calls and 133 fire calls. The Intervenor estimated that he would have responded to about 50 fire calls and fewer than 10 rescue calls. There is an association of Volunteer Firefighters for the City of Merritt. The secretary-treasurer of the association maintains a response sheet showing which firefighters have responded to each call and the length of time when a responding firefighter was on duty at a particular call. The response sheets also show attendance at the Monday evening training sessions. The response sheets for each month are sent to City Hall. Someone at City Hall adds up the hours of service for all firefighters in a particular month; applies the corresponding hourly rate for each firefighter; and computes an aggregate amount owing with respect to all volunteer firefighters for that particular month
[9] The Appellant then issues one cheque in the aggregate amount for that month payable to the City of Merritt Fire/Rescue Department which is the name of a bank account held by the Association of Volunteer Fire Fighters. The Association actually issues the monthly pay cheques to the volunteer firefighters but deducts an annual amount ($300) as the membership fee for each firefighter to belong to the Association. At the end of each year, for income tax purposes, the Appellant issues a T-4 form to each firefighter based on the information in the response sheets which are prepared by the secretary-treasurer of the Association.
[10] Richard Finley, the Fire Chief for the City of Merritt, testified as a witness for the Appellant. He has been Fire Chief since March 1991. He has been involved in a discipline procedure but, during his term, no volunteer firefighter has ever been dismissed. If one had been dismissed, he would have done it. With respect to footnote 3 to Schedule "C" (quoted above), he stated that having a few firefighters on weekend standby during the summer was to ensure that somebody would be available to respond to an emergency weekend call.
[11] Exhibit R-1 is a document dated March 22, 1999 (one month prior to the hearing of this appeal) setting out the "Leave of Absence Provisions" for the Merritt Fire/Rescue Department. It contains seven short policy statements with respect to the terms on which leave will be granted. The first four items are as follows:
1. As an active member of the Merritt Fire/Rescue Department the executive would like to see a requirement that members attend a minimum of 75% practices and a reasonable amount of fire calls. (Rescue calls outside the City Limits are exempt.)
2. The Platoon Officer or alternate may grant a leave up to one month but not exceeding 2 times in a one-year period.
3. The Chief may grant a leave from 1 to 6 months.
4. No member shall be allowed more than 6 months leave within a 3-year period.
Fire Chief Finley stated that Exhibit R-1 was drafted because the Association wanted some form of established policy concerning leave. The former policy was supposed to be that a person would be discharged if he missed three training sessions in a row and three calls in a row but no person had ever been discharged under the former policy.
[12] In order for the Intervenor to succeed, he must satisfy two conditions: (i) that he was employed as a firefighter by the Appellant under an express or implied contract of service; and (ii) if he was so employed, that his employment was not excluded from insurable employment under subsection 5(2) of the EI Act.
[13] In my opinion, the Intervenor cannot succeed in this appeal because he cannot satisfy either condition. When a person is employed under a contract of service, that person has some obligation to respond to the needs of the employer. This is part of the "control test" concerning whether the payor has some control over the worker. On the facts of this case, the Appellant had no control over the Intervenor as to whether the Intervenor would respond to a particular call. This is an important factor because the only purpose of the Merritt Fire/Rescue Department is to respond to emergencies as they arise: either putting out a fire or rescuing a person in distress or doing both at the same time. Notwithstanding the emergency nature of the Department's purpose, the Intervenor at his own convenience could elect either to respond to a call from the Department or to ignore such a call; and the excise of his election either way would have no effect on his continuing status as a volunteer firefighter.
[14] The negligible amount of control is apparent in the first item of Exhibit R-1 (quoted above) which states in part:
" ... the executive would like to see a requirement that members attend a minimum of 75% practices and a reasonable amount of fire calls." ...
There is no evidence in the oral testimony of the Fire Chief or the Intervenor or in any of the documents that a volunteer firefighter was punished or penalized in any way for failure to attend 75% of the practices or a reasonable number of fires, whatever that reasonable number was.
[15] No person could expect to earn a living as a volunteer firefighter in a municipality as small as Merrit (population 8,000) because there would not be enough emergency calls in any year on a pay-per-call basis. According to Exhibit A-3, in the years 1996, 1997 and 1998, there were approximately 200 to 220 calls per year for fire and rescue. If each call required three hours of service, there would be an average of 630 hours of work per year for fire and rescue. Having regard to the A Platoon and the B Platoon, a firefighter could expect about 315 hours of work on call per year earning about $3,200 plus time for practice sessions.
[16] The Intervenor had a full-time job in 1997 and his activity as a volunteer firefighter was performed in his spare time as far as training sessions were concerned. It was only the emergency calls which could intrude upon his full-time job and, if necessary, he could ignore such calls. A person must have a basic interest in an exciting challenge and the opportunity to help in a crisis before that person would volunteer as a firefighter. The training sessions are held in the evenings because the activity itself cannot provide a livelihood. The municipality offers remuneration as an incentive to attract volunteers and because of the obvious public benefit from the services provided. The activity of a volunteer firefighter is something like a remunerated hobby. In my view, it is not employment under a contract of service.
[17] If I should be wrong in my conclusion that the Intervenor's activity as a volunteer firefighter is not employment under a contract of service, then I would conclude that it is excepted employment under paragraph 5(2)(h) of the EI Act and Regulation 7(e) which states:
7. The following employments are excluded from insurable employment:
...
(e) employment of a person for the purpose of a rescue operation, if the person is not regularly employed by the employer who employs them for that purpose; ...
Having regard to the purposes of the Merritt Fire/Rescue Department as described by the Intervenor and Fire Chief Finley, one of the purposes of the Department was a rescue operation for any person in distress. I would therefore conclude that, if the Intervenor is employed by the Appellant in his status as a volunteer firefighter, that employment is excluded from insurable employment by paragraph 7(e) of the Regulations.
[18] I am supported in my conclusion by the decision of my colleague, Teskey J., who decided in Town of Whitchurch-Stouffville v. M.N.R., April 14, 1993 (not reported) that volunteer firefighters in that Ontario town were not engaged in insurable employment by the town. The appeal is allowed and the claim of the Intervenor is denied.
Signed at Ottawa, Canada ,this 1st day of June, 1999.
"M.A. Mogan"
J.T.C.C.
COURT FILE NO.: 98-924(UI)
STYLE OF CAUSE: City of Merritt and The Minister of
National Revenue and Lance Thatcher
PLACE OF HEARING: Kamloops, British Columbia
DATE OF HEARING: April 23, 1999
REASONS FOR JUDGMENT BY: The Honourable Judge M.A. Mogan
DATE OF JUDGMENT: June 1, 1999
APPEARANCES:
Counsel for the Appellant: Kenneth R. Hauser
Counsel for the Respondent: Charlotte Coombs
For the Intervenor: The Intervenor himself
COUNSEL OF RECORD:
For the Appellant:
Name: Kenneth R. Hauser
Firm: Kenneth R. Hauser Law Corporation
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
98-924(UI)
BETWEEN:
CITY OF MERRITT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LANCE THATCHER,
Intervenor.
Appeal heard on April 23,1999, at Kamloops, British Columbia, by
the Honourable Judge M.A. Mogan
Appearances
Counsel for the Appellant: Kenneth R. Hauser
Counsel for the Respondent: Charlotte Coombs
For the Intervenor: The Intervenor himself
JUDGMENT
The appeal by the Appellant pursuant to subsection 103(1) of the Employment Insurance Act is allowed and the decision of the Minister on the appeal made to him under section 91 of the Act vacated. The claim of the Intervenor is denied.
Signed at Ottawa, Canada, this 1st day of June, 1999.
|
"M.A. Mogan" |
J.T.C.C.