[OFFICIAL ENGLISH TRANSLATION]
2000-2617(EI)
BETWEEN:
DANIEL POULIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on July 26, 2001, at Ottawa, Canada, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Appellant: Chantal Donaldson
Counsel for the Respondent: Gatien Fournier
JUDGMENT
The appeal from the decision confirming the assessment made under the Employment Insurance Act, the notice of which is dated February 16, 2000, is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 16th day of August 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010816
Docket: 2000-2617(EI)
BETWEEN:
DANIEL POULIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal from an assessment concerning Mr. Stéphan Piersotte, Ms. Nicole Joseph and Ms. Christine Paquette (''the workers'') for 1999. The assessment was made on the ground that during the period at issue the workers held insurable employment within the meaning of the Employment Insurance Act (''the Act'').
[2] In reaching that decision, the respondent relied on the following assumptions of fact set out in paragraph 4 of the Reply to the Notice of Appeal (''the Reply''):
[TRANSLATION]
(a) the appellant had a car accident in November 1991;
(b) following the accident, the appellant was hospitalized until September 1992;
(c) the appellant has remained a quadriplegic and requires daily assistance;
(d) the appellant can move around only in a wheelchair;
(e) the appellant resumed his work at the Museum of Civilization in Hull starting in January 1997;
(f) the appellant hired Christine Paquette to prepare meals, run errands using the appellant's truck, take out the garbage, and do laundry and housework;
(g) Christine Paquette worked every other weekend;
(h) the appellant hired Nicole Joseph as a nursing assistant;
(i) Nicole Joseph performed the same duties for the appellant for two hours per night, seven days a week;
(j) Stephan Piersotte did laundry and housework, and drove the appellant to work each day;
(k) the appellant provided the supplies and equipment required by the workers;
(l) the appellant also made his car available to the workers;
(m) the appellant set the workers' schedule;
(n) in the event of a worker's absence, the appellant had to find a replacement;
(o) the appellant paid the workers an hourly rate;
(p) the appellant received all the funds to pay the workers from the Société de l'assurance automobile du Québec.
[3] The Notice of Appeal sets out the following points:
[TRANSLATION]
I became a quadriplegic following a car accident; my disability requires special daily assistance for several hours per day. In light of my situation, the Société de l'assurance automobile du Québec (SAAQ) reimburses me a set amount every two weeks, that amount being the maximum allowed under their mandate. Unfortunately, these reimbursements cover essentially the costs of my personal assistance. By declaring me to be an employer, thus obliging me to remit source deductions as well as to pay employer's contributions, you are placing me in a financial situation I am unable to assume. It must be realized that I am a person with a disability who, technically, purchases services from these people who, in return, give me receipts that I send to the SAAQ in order to be reimbursed.
I am not en employer in the strict sense of the word, since I derive no profit from these activities, and since in no way does my financial situation allow of my being considered an employer or permit me to assume the costs that a decision by you that I am an employer would impose on me.
It was solely in order to be of help to some of my attendants who had trouble managing their budgets that in 1998 I decided to make source deductions. At that time I was unaware of the additional costs to me that this would create, or of the time it would take to produce the required statements.
[4] The appellant, as well as the workers, testified. Subparagraphs 4(a) to 4(j) and 4(l) to 4(p) of the Reply to the Notice of Appeal were admitted. Concerning the wording of subparagraph 4(e), the appellant explained that, on returning to work, he no longer performed the duties he had performed before his accident. With respect to subparagraph 4(k), which the appellant denied, the supplies and equipment allegedly not furnished by the appellant included items for personal hygiene procedures, such as catheters, mattress pads and other medical supplies, which were provided or paid for by the Société de l'assurance automobile du Québec (''the SAAQ'').
[5] The decision concerning the assessment appealed from is dated May 25, 2000 and was produced as Exhibit I-5. The assessment was produced as Exhibit I-3.
[6] The workers each received a decision by the Minister stating that they were employees of Mr. Daniel Poulin in 1999. The letters containing these decisions, which were produced as Exhibit I-1, informed each worker that if they disagreed with the decision concerning them they had 90 days from the date of the letter to contest the decision in writing, which none of the workers did.
[7] The decisions indicated that it had been determined that the workers were each employees because Mr. Daniel Poulin exercised control over them and their work, as stated in the following terms:
[TRANSLATION]
- He sets your hours of work.
- You yourself are required to provide the services.
- You are required to follow instructions regarding the work to be done and how to do it.
- You do not have to provide the equipment or supplies required to do the work.
- You do not provide your services as a self-employed worker.
[8] Exhibit A-1 is the attestation of the costs incurred for personal home assistance. In order to be eligible for reimbursement of the costs of home assistance, the accident victim must provide to the SAAQ this attestation signed by the victim and by the person who provided the services. The attestation must indicate the duration of the assistance, the amount of money received, and the person's name, address, and social insurance number. The attestation form clearly shows that the information provided on the application may be checked by the SAAQ and will be forwarded to Quebec's Ministère du revenu.
[9] The appellant explained that he required from two to three hours of assistance in the morning. This was followed by a 45-minute rest period and then came lunch. In the afternoon, the appellant travelled by public transit to his workplace, the Museum of Civilization, where he worked as a tour guide for four or five hours. He then returned home, where an attendant looked after him, leaving at around 7:00 p.m. Someone then came from 11:00 p.m. to 1:00 a.m. to help him get to bed and to provide other personal care.
[10] The appellant lives alone. He owns a house and has a tenant living in the basement. He hires workers through newspapers, through references from people he knows, and through various agencies. The people hired must have relevant education, or have taken the personal care attendant training course, or be nursing assistants.
[11] According to the appellant, the workers' schedule is determined by the appellant's needs. A worker who does not report for work is not paid. In 1999, the appellant paid Mr. Piersotte vacation pay.
[12] Mr. Piersotte holds a certificate as a personal care attendant. He explained that such a certificate is obtained after 630 hours in the classroom and 160 hours of practical work. Mr. Piersotte stated that he began working for the appellant on December 15, 1998. He worked five days per week, from 8:00 a.m. to 1:00 p.m. and from 5:00 p.m. to 7:00 p.m., for a total of 40 hours per week. The appellant determined Mr. Piersotte's hours of work. Mr. Piersotte did not provide any equipment.
[13] Ms. Joseph is a personal care attendant and a nursing assistant. Her hours of work were from 11:00 p.m. to 1:00 a.m., seven days per week, and she also put in some hours in the morning on weekends, for a total of approximately 35 hours per week.
[14] As for Ms. Christine Paquette, a visiting homemaker, she worked every other weekend for 15 hours, preparing meals and doing housework. She did not receive vacation pay.
[15] Counsel for the appellant relied on this Court's decision in an income tax matter in Maurice v. Canada, [2001] T.C.J. No. 164 (Q.L.). She referred to paragraph [2] of the reasons for that decision, in which are set out the facts the Minister took into consideration. Subparagraph (l) in the said paragraph [2] indicates that the amounts received from the SAAQ must be distributed to third parties in return for the assistance they provide, and that those third parties must pay tax on that income received-as compensation for services rendered-in the form of either employment income or business income.
[16] On the basis of that statement of fact, counsel for the appellant argued that the Minister may consider persons providing assistance services to be self-employed workers and not necessarily employees. She also argued that the appellant did not exercise control over the workers. According to her, they were skilled workers to whom the appellant was not in a position to give instructions. Counsel was unwilling to make distinctions between the working conditions of the individual workers in this case, between Mr. Piersotte's working conditions and those of Ms. Paquette, for example.
[17] Counsel for the respondent referred to this Court's decisions in Philippe Grenon v. Canada (Minister of National Revenue), [2000] T.C.J. No. 179 (Q.L.), and Claire Lafontaine c. M.R.N., an April 27, 2001 decision by Judge Lamarre of this Court, and to the Federal Court of Appeal decision in Canada (Attorney General) v. Massicotte, [1989] F.C.J. No. 1140 (Q.L.).
[18] Counsel for the respondent pointed out that the workers provided no equipment and were integrated into the appellant's activities. Concerning the test of control, he argued that the appellant dictated the duties to be performed and that the workers were there to meet the appellant's needs in accordance with the schedule set by the appellant. The appellant determined the rate of pay. The workers themselves were required to provide their services personally. Since they were paid at an hourly rate, the workers had no chance of profit or risk of loss.
[19] I quote the following passage from Marceau J.'s reasons in Massicotte (supra):
For the initial conclusion drawn by the judge: The respondent hired one Yvan Bernier to provide her with the assistance and services that her handicapped condition required. An actual contract existed between them. This being established, to dispute that this was a contract of service, as seemed apparent and as the minister had determined, it was necessary for the judge to satisfy himself that there lacked the essential element of a contract of that nature, namely the relationship of subordination characterized by the control exerted by the recipient of the services over the person providing them. We do not believe that on the basis of the facts related by him, the judge could conclude that the said relationship of subordination did not exist here. In our opinion, such a conclusion was not justified in law, whether by the respondent's handicap or by the fact that the said Mr Bernier resided at the home of his employer, or by his lapses in behaviour or his occasional acts of insubordination, as none of these facts could have an influence.
Conclusion
[20] In his Notice of Appeal, the appellant states that he is neither carrying on a commercial business nor in a legal position that would allow him to deduct the additional payments he would have to make under the Act as an employer. He also indicates that the reason he made income tax deductions at source was to help one of his workers.
[21] On this point, it must be noted that one need be neither in business nor entitled to deductions with regard to workers' salaries for the workers to be considered employees. What counts are the worker's working conditions.
[22] The decision referred to by counsel for the appellant was made under the Income Tax Act. The judge ruled that the person providing the assistance-the mother of the person with a disability-was neither an employee nor a self-employed worker. I quote paragraphs 28 and 31 of the decision in Maurice v. Canada (supra):
[28] Based on the test set out in Wiebe Door Services, supra, the appellant was not an employee, since she was completely independent in the way she did her work, worked in her own environment with her own tools and was not in any way part of a third party's business. Nor was the appellant an independent contractor within the meaning of the case law, mainly because, although she acted independently in performing her work, she was not free to organize her time as she saw fit due to her daughter's specific and continuous needs and because her alleged potential profit was fixed in advance and in no way depended on her own efforts.
[31] In the case at bar, the appellant chose to assume responsibility for her daughter herself, not for the pecuniary benefits she could derive therefrom but rather to fulfil her obligation of support, rightly considering that she was the person best qualified to look after her child. The monetary benefits resulting from that maternal family activity are no more taxable than profits from hobbies or simply amounts that some people give to their non-working spouses to attend to their family's various needs.
[23] Moreover, the conclusions by the judge in the above case were drawn in the context of the Income Tax Act. In addition, I must point out that the working conditions of the appellant in that case were not at all similar to those of the workers in the present case.
[24] This Court's decisions in Grenon (supra) and Jeannine R. Houle c. M.R.N., another April 27, 2001 decision, also have to do with persons with disabilities who need assistance. Each of these decisions requires that there be a relationship of subordination between the person with the disability and the person hired to perform certain duties according to a set schedule and for a set rate of pay.
[25] Also, in the present case, the description of the duties and the conditions of their performance do not tend to indicate that the workers are in business. Although the workers stated at the hearing that it was not they who requested insurability, it must be noted that they did not contest the decision of insurability once it was made. Not that my decision would have been any different had they done so, but the fact that they did not do so is an indication that these workers did not consider themselves to be in business, but rather thought of themselves as being in an employment situation.
[26] The appellant exercises control over the workers. The workers have duties to perform that are determined by the appellant, and they must perform those duties themselves. Their schedule is set by the appellant for long periods at a time. It is normal for the appellant to hire persons who know how to perform the duties in question and provide the required assistance. That does not make them self-employed workers. We all know that most persons with diplomas are employees, not self-employed workers. It is the appellant who provides the equipment required for giving the assistance, even though he is reimbursed for the cost of the equipment by the SAAQ; the workers do not provide the equipment.
[27] No distinct argument has been made to me about the individual workers' working conditions, which could have been different in each case. I must therefore consider the workers in the overall context of the appellant's activities.
[28] On May 7, 1992, in Attikamek-Montagnais Council v. Canada (Minister of National Revenue), [1992] T.C.J. No. 271, I rendered a decision along the same lines on a similar subject. My decision in Insurance Corporation of British Columbia v. Canada (Minister of National Revenue), [2000] T.C.J. No. 151 (Q.L.), although on a different point, also had to do with an employee of a person who had had an accident. The case law cited and the case law I have referred to is consistent. According to that case law, the attendants of accident victims, of persons with disabilities, and of persons unable to live independently, who work under conditions similar to those of the appellant's attendants, are employees.
[29] The appeal is dismissed.
Signed at Ottawa, Canada, this 16th day of August 2001.
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"Louise Lamarre Proulx" |
J.T.C.C.