[OFFICIAL ENGLISH TRANSLATION]
2002-140(EI)
BETWEEN:
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
PASCALE CHOQUETTE,
Intervener.
Appeal heard on common evidence with the appeal of Ambulance St-Jean (2002-1642(EI)) on August 29, 2002, at Montréal, Quebec, by
the Honourable Deputy Judge J.F. Somers
Appearances
Counsel for the Appellant: Zoltan Ambrus
Julie Gaudreault-Martel (Student-at-law)
Counsel for the Respondent: Marie-Aimée Cantin
For the Intervener: The Intervener herself
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 14th day of November 2002.
|
"J.F. Somers" |
D.J.T.C.C.
Translation certified true
on this 17th day of February 2004.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2002-1642(EI)
BETWEEN:
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeal of Ambulance St-Jean (2002-140(EI)) on August 29, 2002, at Montréal, Quebec, by
the Honourable Deputy Judge J.F. Somers
Appearances
Counsel for the Appellant: Zoltan Ambrus
Julie Gaudreault-Martel (Student-at-law)
Counsel for the Respondent: Marie-Aimée Cantin
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 14th day of November 2002.
|
"J.F. Somers" |
D.J.T.C.C.
Translation certified true
on this 17th day of February 2004.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20021114
Docket: 2002-140(EI)
BETWEEN:
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
PASCALE CHOQUETTE,
Intervener.
AND
Docket: 2002-1642(EI)
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] These appeals were heard on common evidence at Montréal, Quebec, on August 29, 2002.
[2] The appellant instituted an appeal from the decisions of the Minister of National Revenue (the "Minister") determining that the employment by the appellant of Pascale Choquette during the period in issue, that is, from September 26, 1999, to September 28, 2000, and of Mélissa Roy for the day of September 29, 2001, was insurable on the ground that it met the requirements of the contract of service.
[3] Subsection 5(1) of the Employment Insurance Act (the "Act") reads in part as follows:
5(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
...
[4] The burden of proof is on the appellant. It has to show on a balance of probabilities that the Minister's decisions are incorrect in fact and in law. Each case stands on its own merits.
[5] In making his decisions, the Minister relied on the following assumptions of fact, which are similar in both cases, and which the appellant admitted, denied or had no knowledge of:
[TRANSLATION]
(a) the appellant is a non-profit organization that has been in existence for more than 100 years; (admitted)
(b) the appellant's mission is to provide volunteer first aid services and training in first aid and resuscitation; (admitted)
(c) the appellant employs some 15 persons on a full-time basis and calls upon 80 to 90 part-time instructors; (denied)
(d) the appellant entered into first aid training agreements with various clients, individuals and businesses; (admitted)
(e) the worker was hired by the appellant as a first aid instructor; (denied)
(f) the training courses varied in length from one half-day to three days; (admitted)
(g) the clients were the clients of the appellant, not the worker; (admitted)
(h) the appellant [sic] had nothing to negotiate with the clients; (admitted)
(i) the worker had to follow the course plans established by the appellant; (denied)
(j) the worker worked from the office of the appellant or the client; (admitted)
(k) the worker had to comply with the schedule of the course requested by the appellant's client; (denied)
(l) the worker's comings and goings and hours worked were monitored by the appellant's client; (denied)
(m) the appellant [sic] introduced herself to the client as the appellant's instructor; (no knowledge)
(n) the client's participants took an exam and completed a course evaluation form once the course was finished; (admitted)
(o) at the end of the session, the worker submitted to the appellant a list of the participants, the exam results and the evaluations completed by the participants; (admitted)
(p) if the worker was sick or unable to report for work, the appellant replaced her; (denied)
(q) the worker was paid per day or per half-day of training; (admitted)
(r) the remuneration had been determined by the appellant alone; (denied)
(s) the worker's remuneration was $125 a day or $65 a half-day; (admitted)
(t) the worker bore no expenses in the context of her duties with the appellant; (denied)
(u) the worker was reimbursed for her travelling expenses if she had to travel more than 35 kilometers from the appellant's office; (admitted)
(v) the appellant was responsible for costs if equipment broke down; (denied)
(w) the worker billed the appellant her daily remuneration; (admitted)
(x) the worker had no chance of profit or risk of loss in her duties with the appellant; (denied)
(y) the course program and all the material, dummies, bandages, projectors and videos necessary to give the training were supplied by the appellant; (denied)
(z) the worker's duties were completely integrated into the appellant's activities. (denied)
[6] The appellant is a non-profit organization that has been in existence for more than 100 years and whose mission is to provide volunteer first aid services and training in first aid and resuscitation.
[7] The appellant employs 15 to 18 full-time employees and calls upon some 80 to 90 part-time instructors.
[8] The appellant entered into first aid training agreements with various individual and corporate clients. The clients were those of the appellant, not of the workers. The workers had nothing to negotiate with the clients. The workers worked from the office of the appellant or of the client.
[9] Ida Khouri, the appellant's director of operations for the province of Quebec, explained that she had provided technical support to workers Pascale Choquette and Mélissa Roy.
[10] To become an instructor, it was a prerequisite to take a supervisory course, but meeting that prerequisite did not necessarily provide instructors with work.
[11] To obtain work, the workers had to inform the appellant when they were available, and the work was given to them on a freelance basis in accordance with their availability. The workers had no guarantee of work and, if they were no longer interested in working, they simply stopped giving the appellant their availability. Their duties were to demonstrate techniques and train participants.
[12] Once the workers' availability was established, the coordinator gave them assignments, which the workers could turn down without giving any reasons.
[13] Once the assignment was accepted, the workers had to inform the coordinator if it was impossible for them to continue the assignment due to illness or other reasons, and the coordinator took it upon herself to find a replacement.
[14] If the workers were absent, they were not paid. The remuneration established by the appellant was $125 a day or $65 a half-day. The remuneration was paid by the appellant.
[15] The workers submitted their claim for days worked on paper bearing the appellant's letterhead. The workers were paid for days and half-days worked and were not entitled to annual or sick leave or other leave days. However, if for some reason beyond the workers' control, the assignment was cancelled and they were already at the work site, they were paid the half-day rate.
[16] Fida Khouri described a worker's typical day; he or she would go to the premises of the appellant's client and give courses to the client's participants.
[17] The workers were responsible for transportation when travelling less than 30 kilometers, and, when travelling more than 35 kilometers, were compensated by the appellant, which billed the amount to its client.
[18] According to Ms. Khouri, workers may, at their discretion, use a course syllabus (Exhibit A-1, tab 5) in addition to a guide (Exhibit A-1, tab 6) prepared and supplied by the appellant.
[19] The billing of the worker Pascale Choquette during the period in issue for courses given for the appellant or the C.S.S.T. appears in Exhibit A-1, tab 8. Of the courses the worker gave, 80 percent were at the request of the C.S.S.T. and 20 percent at the request of the appellant.
[20] A first aid training guide was provided by the C.S.S.T., which the appellant asked the worker to accept.
[21] According to Ms. Khouri, workers are not supervised when they give courses. There is no dress code, but workers must be suitably attired. The appellant considers that jeans are not acceptable.
[22] Offices are provided by the appellant when courses are given at its premises. A room is made available to workers for lunch.
[23] A worker has to submit to the appellant a course evaluation written by the student on a form provided by the appellant (Exhibit A-1, tab 9).
[24] The appellant provides workers with accessories: dummies, videos, blackboards and activity notebooks. However, some workers have their own accessories.
[25] Instructor-workers must take courses every three years at their own expense. Liability insurance is paid for by the workers.
[26] Some instructors are unionized employees of the appellant, and they are given courses paid for by the appellant, annual leave, sick leave and so on.
[27] In cross-examination, when questioned by counsel for the respondent on the instructor's guide prepared by the appellant (Exhibit I-1, tab 1), Fida Khouri explained that the guide was highly recommended. She added that, if workers did not teach the right technique, the coordinator assigned them no more work. Under the heading "Programmed Teaching Method" on page 5, the guide states:
[TRANSLATION]
Every activity must be carried out in the prescribed order so that the student can acquire the necessary theoretical and practical knowledge to pass the practical evaluation and the written examination and therefore obtain a first aid certificate.
[28] If a complaint is filed by a student or client, the appellant assigns another worker.
[29] Information on teaching C.S.S.T. courses is provided in Exhibit I-1, tab 2. That document is signed by Fida Khouri in her capacity as regional master instructor and reads in part as follows:
[TRANSLATION]
To: All CSST instructors
From: Regional Master Instructor
Information on teaching CSST courses
0 The time allotted for each course module must be adhered to.
0 The course syllabus must be followed. For example, do not switch modules between morning and afternoon or between day 1 and day 2.
0 There must always be a second instructor if there are more than eight candidates.
0 The second half-day instructor must arrive on time and not leave until after the course is finished. You must always remain in the classroom except on breaks.
0 Any demonstration of first aid material other than that in the CSST volume is prohibited.
0 The promotion and/or sale of material during course hours, breaks or lunch is prohibited.
0 The use of video cassettes other than those of the CSST is prohibited.
0 Do not confuse St. John Ambulance standards with those of the CSST. See examples below.
|
St. John Ambulance |
CSST |
|
A.R.: During A.R., the victim's pulse is taken every few minutes. |
A.R.: During A.R., the victim's pulse is taken every minute. |
|
Hypothermia: If you suspect hypothermia, take the pulse every one or two minutes. |
Hypothermia: Take 30 to 45 seconds to check the victim's pulse. |
|
Normal resting pulse rate for an adult: Between 50 and 100 beats/minute. |
Normal resting pulse for an adult: Between 60 and 100 beats/minute. |
|
Responsiveness: To assess responsiveness, first-aiders should talk to the victim, then tap the victim's shoulders. |
Responsiveness: After stimulating the victim verbally, the first-aider may try painful stimulation (rubbing the sternum and pinching the shoulders). |
0 The St. John neck brace is not in the CSST volume.
0 The pad dressing is not in the CSST volume.
0 The administration of ASA (Aspirin) to victims suffering from chest pains is taught only in St. John Ambulance courses.
0 Two-rescuer CPR is not part of the CSST course.
0 Trainers must be able to base their instruction on situation scenarios rather than on theory.
0 The evaluation criteria stated in the trainer's guide must always be complied with.
. . .
[30] In an organization chart filed as Exhibit I-2, the name of worker Pascale Choquette appears as an instructor. That organization chart also includes the "Training Structure - Montreal Region", which reads as follows:
[TRANSLATION]
· Definition of roles and responsibilities
· Instructor:
- Teach in accordance with St. John Ambulance norms and standards;
- Maintain knowledge, skills and professionalism;
- See your M.I. once a year (minimum); and
- Keep your M.I. up to date (administration).
· Master-instructor:
- Same responsibilities as an instructor, plus:
- train, supervise, monitor and GUIDE instructors in accordance with St. John Ambulance norms and standards;
- Transmit relevant information to your instructors; and
- Meet with your instructors at least once a year.
[31] Fida Khouri explained the organization chart as follows: the master-instructor is a coach, and the instructor may refer to the master-instructor if there is a problem. She added that the master-instructor supervises instructors' training.
[32] A document entitled "Memorandum", dated December 28, 1999, and filed as Exhibit I-1, tab 5, was sent to all freelance instructors of the downtown Montréal branch of the St. John Ambulance, calling them to a meeting on January 29, 1999.
[33] A document entitled "Statement of Work" filed in evidence as Exhibit I-1, tab 7, refers to bid acceptance criteria, the cleanliness of premises and material, equipment, insurance, the supply of services and so on. Fida Khouri said that the purpose of that statement was to clarify the appellant's goals and objectives.
[34] Pascale Choquette, a witness for the respondent, said that she was an instructor for the C.S.S.T. and the appellant. She had undertaken to give instructor courses at the appellant's premises. Although the appellant considered that the worker was self-employed during the period in issue, Pascale Choquette had questioned her employee status.
[35] She accepted self-employed worker status because her schedule was flexible and that suited her because she had family responsibilities.
[36] When she worked for the C.S.S.T., she was considered an employee, whereas she had been considered a self-employed worker when she was in the appellant's service.
[37] Considering her interest in that type of work, Pascale Choquette took a three-day general course and a five-day instructor's course with the appellant.
[38] As supervisor, master-instructor Marc Malette (Exhibit I-4) recommended the worker for an instructor's certificate.
[39] When she was confirmed as an instructor, she received the instructor's guide to which she was to refer in order to verify whether her teaching method met the guide's standards.
[40] The witness said that the appellant had decided on the course outline of courses given to clients (Exhibit I-1, tab 1).
[41] The witness explained that she had to give an evaluation of each participant. If the participant passed, he or she received a certificate. She said that she had had to provide details on her courses. Participants were also able to complete a course evaluation form (Exhibit I-1, tab 4).
[42] Pascale Choquette said that she had gone to the premises provided by the appellant to obtain documentation. On those premises, a locker and a telephone were put at her disposal.
[43] She admitted that her remuneration was $125 a day and $65 a half-day. If there was a cancellation once she was on the work site, she was paid the half-day rate.
[44] The necessary material for the courses, that is, dummies, videos, triangular bandages, and so on, worth $500, was provided to her by the appellant.
[45] The classrooms were provided by the appellant, both at the appellant's office and on the client's premises.
[46] The appellant was responsible for finding a replacement when the worker had to be absent.
[47] Pascale Choquette said that she had received the statement of work, which Fida Khouri testified had not been applied. But the worker said she had been obliged to complete the statement of work. However, she added that nothing in her conditions of employment had changed because her remuneration did not change and the appellant continued renting classrooms.
[48] Pascale Choquette said she had received the organization chart entitled "Instructors, Montréal Region" (Exhibit I-2) explaining the standards of St. John Ambulance.
[49] She admitted that, when necessary, she had consulted master-instructor Marc Malette, whose role is defined in the document "Roles and Responsibilities of the Master-Instructor and Instructor" (Exhibit I-6).
[50] She also admitted that she had not been supervised in the classrooms.
[51] In her testimony, Julie Dussault, a nurse, said that she had given courses to the instructors. She said that she had taken the C.S.S.T. course but that the appellant had specific requirements with regard to the teaching of courses.
[52] She stated that the classrooms had been paid for either by the appellant or its client. Course material was thus supplied to the instructors by the appellant. It was the appellant's responsibility to find a replacement when an instructor had to be absent.
[53] Mélissa Roy the worker did not testify at the hearing of these cases.
[54] The point for determination therefore is whether the workers held insurable employment within the meaning of the Act with the appellant during the periods in issue.
[55] To draw a clear distinction between a contract of service and a contract for services or a self-employment contract, the Court must consider the whole of the various elements that constitute the relationship between the parties.
[56] In Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal enumerated four basic tests for distinguishing a contract of service from a contract for services.
[57] The four case law tests are the degree or absence of control exercised by the employer; ownership of the tools; chance of profit or risk of loss; and the degree of integration of the employee's work into the employer's business.
[58] Of those four tests, the degree or absence of control is the most important to consider. The others are necessary in determining the overall relationship between the parties. However, control in itself is not determinative.
[59] With respect to control, Pratte J.A. of the Federal Court of Appeal held as follows in Gallant v. M.N.R. (F.C.A.), [1986] F.C.A. No. 330:
. . . In the Court's view, the first ground is based on the mistaken idea that there cannot be a contract of service unless the employer actually exercises close control over the way the employee does his work. The distinguishing feature of a contract of service is not the control actually exercised by the employer over his employee but the power the employer has to control the way the employee performs his duties. If this rule is applied to the circumstances of the case at bar, it is quite clear that the applicant was an employee and not a contractor.
[60] In Groupe Desmarais Pinsonneault & Avard Inc. v. M.N.R., [2002] F.C.J. No. 572, Nöel J.A. of the Federal Court of Appeal wrote at paragraph 5:
The question the trial judge should have asked was whether the company had the power to control the way the workers did their work, not whether the company actually exercised such control. The fact that the company did not exercise the control or that the workers did not feel subject to it in doing their work did not have the effect of removing, reducing or limiting the power the company had to intervene through its board of directors.
[61] The principle to consider here is the power to control the worker, not whether control was actually exercised.
[62] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, Major J. agreed with MacGuigan J.A., when he asserted in Wiebe Door Services Ltd., supra:
. . . The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones.
[63] Major J. added:
. . . I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.
[64] The worker Pascale Choquette testified that, at the time the agreement was entered into with the appellant, she had agreed to be considered as a self-employed worker because she would have more flexibility to attend to her family responsibilities.
[65] However, she questioned that arrangement when she learned that the C.S.S.T. considered workers with the same employment conditions as employees. The status of worker is not determined solely by the intentions of the parties. The employer may have a dominant position and impose working conditions on workers. Workers would thus be deprived of the benefits of an act that is social in nature, particularly the Employment Insurance Act.
[66] In Standing v. M.N.R. (A-857-90), Stone J.A. of the Federal Court of Appeal held as follows:
. . . Regardless of what may have been the Tax Court's appreciation of the Wiebe Door test, what was crucial to it in the end was the parties own post facto characterization of the relationship as that of employer/employee. There is no foundation in the case law for the proposition that such a relationship may exist merely because the parties choose to describe it to be so regardless of the surrounding circumstances when weighed in the light of the Wiebe Door test.
[67] Let us consider the four tests for distinguishing the nature of the contract between the parties.
1. The Tools
[68] The rooms where the courses were given, either in the appellant's establishment or in a room rented for that purpose, were paid for by the appellant. The worker Pascale Choquette admitted that the dummies, triangular pads, documentation and other items were supplied by the appellant.
[69] The workers used their cars at their own expense if the distance to be travelled was less than 30 kilometers but were reimbursed for travelling expenses if they had to travel distances of more than 35 kilometers from the appellant's office.
[70] We may conclude from this aspect of the relations between the parties that there was an employer-employee relationship.
2. Chance of Profit or Risk of Loss
[71] The workers were paid $125 a day or $65 a half-day. There was no element of chance of profit or risk of loss since the workers themselves decided when they wanted to work. The part-time salary was paid for by the appellant. There was no evidence that the workers lost money.
[72] On the basis of this test, the workers could be considered as employees.
3. Degree of Integration
[73] One characteristic appears to be constant under a contract of service: a person is employed as a part of a business and that person's work forms an integral part of the business whereas, under a contract for services, his or her work, even if performed for the business, is not integrated into it but is only accessory to it.
[74] The workers' services were retained for the purpose of giving first aid courses to the appellant's clients. That type of work was part of the appellant's mission. The way the workers were to give courses was conceived by the appellant. The workers were thus integrated into the appellant's operations.
4. Degree or Absence of Control
[75] The analysis is necessarily incomplete without considering the control test. It must be concluded at the outset that there was not an absence of control. There was a prerequisite for the workers to become instructors; instructor courses were given to the workers.
[76] In her testimony, the worker Pascale Choquette stated that she had taken a three-day general course followed by a five-day instructor's course. An instructor's certificate was awarded to the worker by Marc Malette, the master-instructor, enabling her to perform her duties in that capacity. Instructors take St. John Ambulance courses at their own expense every three years.
[77] The roles and responsibilities of the master-instructor and instructor are described in a document, which was filed as Exhibit I-6. Among other things, the instructor had to teach first aid and CPR in accordance with the norms and standards of St. John Ambulance.
[78] Instructors received a guide from the appellant to assist them in teaching the first aid courses. The instruction method is set out in that guide. That method stipulates that every activity must be carried out in the prescribed order so that students can acquire the theoretical and practical knowledge necessary to pass the practical evaluation and the written examination and thus obtain a first aid certificate. In the guide, instructors are provided with a lesson plan determining the time allotted to each exercise.
[79] Instructors were not supervised in the classrooms since the appellant relied on its trust in them. However, participants gave written evaluations of the performance of each instructor. If a valid complaint was filed, the appellant took it upon itself to replace the instructor concerned. If the instructors had problems, they consulted the master-instructor, who generally supervised the instructors.
[80] Once individuals had received their instructor's certificate, they let the appellant know when they would be available. There was no guarantee that the instructors would receive assignments.
[81] Once the courses were given, instructors had to report to the appellant on the time allotted to each course session.
[82] Instructors had to comply with the information appearing in the document dated February 10, 1999, on teaching C.S.S.T. courses. According to that document, instructors were not to confuse St. John Ambulance standards with those of the C.S.S.T. (Exhibit I-1, tab 2).
[83] Instructors had to comply with the work schedule established by the appellant. They personally had to perform the duties indicated but, if an instructor could not appear on a specific date, the appellant found a replacement.
[84] On the evidence, there was sufficient control to establish a relationship of subordination between the instructors and the appellant. Although there was considerable flexibility in the conditions of employment, the instructors had to comply with the standards established by the appellant.
[85] Once the instructors had been accredited to teach first aid, they could exercise their judgment in the instruction courses they gave.
[86] Supervision may be performed in various manners; it may be exercised directly or through given documentation establishing the employer's standards. Instructors received courses directly from the appellant and were accredited by the appellant. The master-instructor had a responsibility, and the instructors had to report to the master-instructor if there was a problem. The master-instructor could replace an instructor if a valid complaint was filed.
[87] In Hennick v. Canada (Minister of National Revenue - M.N.R.), [1995] F.C.A. No. 294, the Federal Court of Appeal, per Desjardins J.A., held that a piano teacher at the Royal Conservatory of Music in Toronto had held insurable employment in accordance with paragraph 3(1)(a) of the Unemployment Insurance Act.
[88] In that judgment, Desjardins J.A. wrote at paragraph 7:
. . . While her contract with the intervener did not specify how she was to teach, there were parameters she had to meet with regard to time which clearly constituted control. The trial judge erred in failing to consider this piece of evidence. Besides, what is relevant is not so much the actual exercise of a control as the right to exercise a control.
[89] The facts stated in that judgment respecting the degree of control are similar to those stated in the instant cases. It is true that each case stands on its own merits, but we may draw on the decisions of other courts in solving at times difficult problems.
[90] In support of its appeal, the appellant referred to the decision in Wolf v. The Queen, [2002] F.C.A. No. 375, in which the Federal Court of Appeal, per Desjardins J.A., conducted an in-depth analysis of the facts and precedents in that case: the worker was a mechanical engineer specializing in aerospace whose services as a consultant had been retained by Bombardier, a business also known at the time as Canadair Limited, in Saint-Laurent, Quebec. Without going into all the details of that judgment, including the written agreement between the parties, the Federal Court of Appeal referred to the fact that the worker was highly skilled, and Desjardins J.A. referred to the decision in Sagaz, supra, in which Major J. of the Supreme Court of Canada explained the concept of the control test.
[91] Major J. adopted the comments of MacGuigan J.A. in Wiebe Door, supra, which read as follows at pages 558 and 559:
. . . A principal inadequacy is its apparent dependence on the exact terms in which the task in question is contracted for: where the contract contains detailed specifications and conditions, which would be the normal expectation in a contract with an independent contractor, the control may even be greater than where it is to be exercised by direction on the job, as would be the normal expectation in a contract with a servant, but a literal application of the test might find the actual control to be less. In addition, the test has broken down completely in relation to highly skilled and professional workers, who possess skills far beyond the ability of their employers to direct.
[92] This is not true of the instant cases. The evidence did not show that the workers who had rendered services to the appellant were highly skilled persons. The appellant had given courses to the workers so as ultimately to accredit them to become instructors. The officers of St. John Ambulance had skills greater than those of the workers. The workers had to take courses every three years to maintain their accreditation.
[93] Noël J.A. of the Federal Court of Appeal wrote as follows in Wolf, supra, at paragraph 122:
. . . I acknowledge that the manner in which parties choose to describe their relationship is not usually determinative particularly where the applicable legal tests point in the other direction. . . .
[94] In the instant cases, the worker Pascale Choquette agreed at the outset to be considered as a self-employed worker, but she eventually had doubts about her work status and that is why she intervened in one of these appeals.
[95] The characterization the parties gave to their relationship was thus not determinative. The Court must consider the whole of the various elements that constitute the relationship between the parties.
[96] Wolf, supra, cannot be relied on to support the appellant's claims. That case stands on its own merits, and the facts are not similar to those in the instant cases.
[97] On the whole of the evidence and the four case law tests, the workers held insurable employment during the periods in issue since they worked under a contract of service within the meaning of paragraph 5(1)(a) of the Act.
[98] The appeals are dismissed, and the decisions rendered by the Minister are confirmed.
Signed at Ottawa, Canada, this 14th day of November 2002.
|
"J.F. Somers" |
D.J.T.C.C.
Translation certified true
on this 17th day of February 2004.
Sophie Debbané, Revisor
Cases consulted by the appellant
St. John Ambulance - Ontario Council (Oshawa Branch) v. Canada (Minister of National Revenue - M.N.R., [1988] T.C.J. No. 1035.
Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553.
Charbonneau v. Canada (Minister of National Revenue - M.N.R.), [1996] F.C.J. No. 1337.
671122 Ontario Ltd. v. Sagaz Industries, [2001] 2 S.C.R. 983.
Wolf v. R., [2002] D.T.C. 6853; [2002] 4 F.C. 396
Cases consulted by the respondent
Elia v. Canada (Minister of National Revenue - M.N.R.), [1998] F.C.J. No. 316.
671122 Ontario Ltd. v. Sagaz Industries, [2001] 2 S.C.R. 983.
Precision Gutters Ltd. v. M.N.R., [2002] F.C.J. No. 207.
Standing v. Canada (Minister of National Revenue - M.N.R.) (F.C.A.), [1992] F.C.J. No. 890, (A-857-90).
Gallant v. Canada (Department of National Revenue) (F.C.A.), [1986] F.C.J. No. 330.
Hennick v. Canada (Minister of National Revenue - M.N.R.), [1995] F.C.J. No. 294.
Vulcain Alarm Inc. v. Canada (Minister of National Revenue - M.N.R.), [1999] F.C.J. No. 749.
Groupe Desmarais Pinsonneault & Avard Inc. v. Canada (Minister of National Revenue - M.N.R.), [2002] F.C.J. No. 572.
Dubreuil v. M.N.R. (F.C.A.), [1989] F.C.J. No. 927.
St. John Ambulance - Ontario Council (Oshawa Branch) v. Canada (Minister of National Revenue - M.N.R.), [1988] T.C.J. No. 1035.