Date: 20000822
Docket: 1999-1529-EI
BETWEEN:
MUNICIPALITÉ D'EASTMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
DENIS LARAMÉE,
Intervenor.
Reasonsfor Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a determination dated February 5, 1999. In that determination, the respondent concluded that there was an employer-employee relationship between the appellant and the worker, Denis Laramée, from January 1, 1997, to September 30, 1998, while Mr. Laramée served as chief of the volunteer firefighters.
[2] The appellant's agent and the intervenor agreed to proceed on common evidence. The appellant admitted all the facts assumed by the respondent in support of the determination at the centre of these proceedings.
[3] Those facts are as follows:
[TRANSLATION]
(a) the appellant operated a fire department with 13 to 15 volunteer firefighters and 3 officers;
(b) pursuant to an agreement, the appellant also provided the services of its fire department to the neighbouring municipality of Bolton-Est;
(c) paragraph 3.1 of the appellant's by-law 9-96 provided for the appointment of a fire chief by the town council;
(d) the worker was employed as chief of the volunteer firefighters;
(e) the worker's duties involved, inter alia, co-ordinating and supervising staff while fighting fires, organizing monthly drills, writing reports, managing the department, ensuring compliance with safety requirements and regulations and ensuring that the equipment was in good condition;
(f) the appellant provided the worker and the volunteer firefighters with all firefighting tools and equipment;
(g) the appellant provided the worker with a cellular telephone and a pager;
(h) the worker received an hourly wage of $9 during drills and $15.02 while fighting fires;
(i) the worker had to organize a three-hour drill each month for all the volunteer firefighters;
(j) each month, the worker received $203 in additional pay from the appellant for performing his various duties and taking part in meetings;
(k) the worker was paid by cheque each month;
(l) the worker had no risk of financial loss nor any chance of profit other than from what he was paid monthly;
(m) the worker had to give 30 days' written notice if he wanted to quit his job.
[4] Ms. Deslongchamps, the appellant's secretary-treasurer, and Denis Laramée in his capacity as intervenor testified in support of the appeal. Their testimony showed that the appellant had planned, defined and organized the work done by the fire chief through a very elaborate by-law, namely by-law 9-96.
[5] The witnesses stressed the voluntary participation and availability aspects; the work was done on an ongoing basis and its primary purpose was, of course, to ensure that a team with adequate preparation and appropriate equipment in good condition was always ready to take action to save and protect both property and people.
[6] Mr. Laramée began by saying that he was a carpenter who had to work outside the municipality in that job that was his livelihood. He said that he was easy to reach when a call came in requiring a response and that he made the appropriate decisions based on a number of factors, including availability and the distances to be covered. Occasionally, he could simply request that a group of outside firefighters employed by another municipality respond to the call.
[7] As chief of the volunteer firefighters, he made sure that the equipment and gear were always in good condition through visits to the premises where everything was stored. He co-ordinated the availability of a group of about 15 volunteer firefighters both for drills and for the various training courses that were occasionally offered.
[8] Following each fire response, the chief prepared a report and submitted it to the appellant. He was paid an hourly rate of $9 for drills and $15 for actual firefighting. He received in addition another $200 or so a month.
[9] The appellant's agent explained that that amount was basically a bonus to make up for the various outlays made by Mr. Laramée in performing his duties, including amounts spent for the use of a car.
[10] There is no doubt that the content of by-law 9-96 suggests very strongly that it should be concluded that the work done by Mr. Laramée was insurable. Indeed, that by-law is very explicit and provides for all the components required for a contract of service to exist, in particular with respect to remuneration, the description of the work, the various responsibilities, the cost of clothing and the work tools. Moreover, the by-law makes it equally clear that the appellant had a right of supervision and intervention regarding the manner in which the work was performed.
[11] The said by-law should be appended to this judgment.
APPLICABLE LAW
Parliament has very specifically excluded certain types of employment: the relevant exclusion is found in paragraph 7(e) of the Employment Insurance Regulations, which reads as follows:
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.
[12] According to the respondent, the exclusion does not apply given that the appellant regularly paid $203 a month. The respondent argued that the payment of that regular monthly amount meant that the employment was regular, steady and continuous.
[13] I do not think that the payment of that monthly amount allows for such an interpretation, since it was basically an allowance, an incentive, a kind of bonus to encourage the proper performance of work, compensation to cover incidental expenses (such as the cost of using a car) and the time spent setting up the co-ordination of operations, etc.
[14] Moreover, it is basically a minor amount that cannot be a sufficient basis for a conclusion that the fire chief was regularly employed by the appellant and that he had been hired with that in mind.
[15] The fire chief was paid $9 an hour for drills and $15 for work done at the scene of an emergency. The average allowance corresponds to an hourly rate of about $12. Accordingly, the monthly premium represented about 17 hours a month or about 4 hours a week. How can it be claimed that this was regular employment, especially since part of the amount was in place of repayment of expenses?
[16] Larousse defines "régulièrement" (regularly) as follows:
[TRANSLATION]
1.In a legitimate or legal manner.
2. With regularity, uniformity.
3. Normally, ordinarily.
[17] Parliament has expressly provided for the exclusion of certain types of employment from insurable employment. I do not think that it is possible or appropriate to circumvent the exceptions formally established by Parliament by resorting to interpretations that are not supported by determining facts. The respondent's arguments are based on a circumstantial element put in place by the appellant to help ensure the efficient operation of a service essential to the community.
[18] Given that the only regular aspect was the payment of the $203 monthly allowance, is that factor enough to render the exclusion provided for by the Employment Insurance Act ("the Act") inoperative? I do not think so. It is my view that that factor must be assessed in the context of the facts as a whole.
[19] In the instant case, the appropriate conclusion is that the payment in question was an administrative practice meant to simplify and facilitate sound administration.
[20] Moreover, that fact alone is not a significant component of the agreement between the appellant and the fire chief; it is a secondary term thereof that must be assessed in the overall context.
[21] The evidence showed that Mr. Laramée had complete discretion as to whether or not to go to the scene of an emergency, even though the emergency was located on the territory for which he was responsible. That flexibility, which was in keeping with the special nature of his status with the appellant, confirms the existence of an independence that is totally inconsistent with the holding of regular employment.
[22] The only thing that was regular was the payment of the monthly amount, since the intervenor could choose whether or not to go and check the state of the equipment. That was left to his complete discretion and was determined solely by his interest in doing good work and in ensuring that the team could, when the time came, count on equipment that was in good condition.
[23] The weight of the evidence showed that the work done by the intervenor constituted employment of a person for the purpose of a rescue operation. The intervenor was not regularly employed. His job was to ensure the continuing operation of, and to head up, the fire department; this did not make him a regular employee, since the only constraints to which he was subject were those placed on him by emergencies.
[24] In the instant case, the work done by the intervenor, Denis Laramée, was in keeping with that defined in the exception provided for by the Act and must therefore be excluded from insurable employment.
[25] The appeal is allowed.
Signed at Ottawa, Canada, this 22nd day of August 2000.
"Alain Tardif"
J.T.C.C.
Translation certified true on this 8th day of November 2001.
[OFFICIAL ENGLISH TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-1529(EI)
BETWEEN:
MUNICIPALITÉ D'EASTMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
DENIS LARAMÉE,
Intervenor.
Appeal heard on June 12, 2000, at Sherbrooke, Quebec, by
the Honourable Judge Alain Tardif
Appearances
Agent for the Appellant: Maurice Friard
Counsel for the Respondent: Diane Lemery
For the Intervenor: The intervenor himself
JUDGMENT
The appeal is allowed and the Minister's decision vacated in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 22nd day of August 2000.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 8th day of November 2001.
Erich Klein, Revisor