Cyr v. M.N.R., docket 96-1241-UI

Date: 19980818

Docket: 96-1241-UI

BETWEEN:

DANIELLE CYR,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

HORACE BLAIS (MARCHÉ BLAIS INC.),

Intervener.

Reasons for Judgment

Tardif, J.T.C.C.

[1] This appeal was heard at Percé, Quebec, on August 5, 1998.

[2] It relates to the insurability of work done for Horace Blais from May 8 to July 28, 1995.

[3] The evidence was made up of the testimony of the appellant and Horace Blais, the captain of the boat.

[4] The appellant explained that during the period at issue, her work involved placing rubber bands on lobsters’ claws. Once that was done, the lobsters were delivered to the plant, namely the Marché Blais, where the appellant helped unload them.

[5] In the afternoon, the appellant went back to the plant to get the bait, that is, the fish (usually herring) used to catch lobster. She then sometimes went to pick up the gasoline needed to run the boat. Two or three times a week, she had to thoroughly wash and clean the boat, which, according to the two witnesses, took about an hour. The appellant also went to sea two or three times a week. It seems that this involvement in the fishing operations was on the advice of a government official, who had told them that this would make it easier to gain insurable status for her work. The benefit of the appellant's going to sea was that it sped up the lobster delivery process, since the rubber bands were put on while at sea and this work was thus already completed when they got back to the wharf. Every Tuesday the appellant went to Marché Blais to pick up their wages.

[6] The evidence also showed that the appellant’s work has been the subject of another decision by this Court on October 13, 1995 (docket 94-2224(UI)), in which the Honourable Deputy Judge Charron ruled in substance as follows:

On the evidence I have come to the conclusion that the appellant’s contract constituted “convenience employment”, that is to say, employment with no other purpose than to enable the appellant to qualify for unemployment insurance benefits . . . .

[7] The evidence also showed that the appellant’s work for the payer during the period at issue was more or less the same as the work she was doing at the time of the previous decision.

[8] Finally, the testimony showed that the appellant did not work for the payer for five weeks at the height of the fishing season because her unemployment insurance benefits had not run out.

[9] The testimony given by Horace Blais was rather vague; he said that he got help from young people on the wharf when the appellant was not there. The young people were paid about $25. For the work described, the appellant indicated that her gross wages were $400 a week, paid to her by Marché Blais on the instructions of her father-in-law, Horace Blais.

Analysis

[10] Since the appellant had already come before this Court once before in connection with her employment with the same payer, and since she therefore ought to have known that the burden of proof was on her, it would have been normal or even necessary that the evidence adduced in support of this appeal should be clear, articulate and, most of all, complete and satisfactory. The reality, however, was quite different: the appellant more or less reproduced the evidence she had adduced the first time, so much so in fact that this Court almost has the impression that it is ruling on an appeal from a decision already rendered by this Court.

[11] Of course, this Court is not bound by the previous decision, and of course, its judgment herein must be based essentially on the facts established by the evidence and only the facts pertaining to the period at issue should be taken into account. However, it was necessary to prove new, decisive facts or at least to improve on the evidence on which the first judgment was based.

[12] The testimony showed that the appellant was involved in the lobster fishing operations carried on by Horace Blais and his son, the appellant’s spouse.

[13] How was the appellant’s work useful and necessary to the business? It was shown that her work made it possible to deliver the lobster more quickly, since when she was on board, the rubber bands were placed on the lobsters’ claws while on the boat. When the appellant did not go to sea, this work was done on the wharf when the boat was unloaded, and was done by three people rather than two. In the appellant’s absence, young people — with respect to whom the description of the method of remuneration was rather confused — helped put on the rubber bands. The Court wanted to know why the bait and the gasoline were not put on board after the lobster was unloaded, thus avoiding a trip. Once again, the explanations given were not very convincing or were even conflicting in that the appellant said that the herring (the bait) was conscribed (conscrit) whereas Mr. Blais said that he had to wait until afternoon to get fresh herring. When the appellant was asked why she was responsible for the bait and the gasoline, she said that the men were resting during that time. Why wait until afternoon to pick up the bait and the gasoline? Horace Blais said that he was anxious to have lunch and rest. Why did the appellant not go out on the boat every day when there was fishing going on? “To give her a break because she was a woman,” said her father-in-law.

[14] The evidence — and the burden of proof was on the appellant — was quite disjointed and not very convincing in its essential points; I have no doubt that the appellant did good and useful work and that she was available and eager to make the work of her spouse and father-in-law easier. The oral argument by counsel for the appellant greatly stressed the fact that her wages were not high, but were reasonable and legitimate. I do not consider generosity a relevant factor in the formation of a contract of service. Undue generosity strikes me as inconsistent with the characteristics of a genuine contract of service, the components of which are basically rational and leave little room for generosity. A genuine contract of service must result from a real need by the business or the payer to have work done by necessity and not out of generosity or sympathy toward the person doing it. It may be commendable that Horace Blais had the appellant share in the total payroll, but that did not have the effect of creating insurable employment.

[15] Of all the duties described in the evidence, it is my view that only placing rubber bands on the lobsters’ claws and washing the boat were work that could be part of a genuine contract of service, and the evidence showed that that work required about 15 hours a week at the most. Moreover, the lack of openness about the hiring of young people on the wharf shows that the need for the work was questionable.

[16] In the circumstances, it is my view that the appellant’s work during the period at issue was not done under a genuine contract of service. It was basically

an arrangement disguised as a contract of service. For these reasons, the appeal is dismissed.

Signed at Ottawa, Canada, this 18th day of August 1998.

“A. Tardif”

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 24th day of February 1999.

Erich Klein, Revisor