Citation: 2012TCC149
Date: 20120530
Docket: 2010-3907(EI)
BETWEEN:
SYLVIE MORIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This is an appeal
concerning the insurability of the work performed by a woman, who was the caregiver
of a young child during the period of August 24 to December 31, 2009. The appellant
maintains that the work in question was performed as part of a contract for
services whereas the respondent has concluded that this same work was performed
as part of a contract of service.
[2]
The appeal was initiated
by way of a notice stating the following:
1.
Appellant Sylvie Morin is a full professor in
administration (marketing) at Université du Québec à Rimouski (UQAR).
2.
On June 1, 2009, the appellant, who since 2003 taught
primarily at the Rimouski campus of this university, was transferred to the Lévis
campus.
3.
The appellant has one child, named Louis, who
was 14 months old in August 2009 and who is her first and only child.
4.
When the 2009 fall semester began, this child
was on a waiting list for the L’arc-en-ciel daycare in Lévis pursuant to an
agreement negotiated with UQAR giving priority admission to the children of UQAR
professors, employees and students.
5.
Since she was teaching two three-hour classes in
the 2009 fall semester, the appellant looked for a reliable person to care for
her son Louis during her teaching hours and while she was at the university, in
other words, about 20 hours a week on average, spread out over 4 days.
6.
On or around August 24, 2009, after receiving
various offers of service, the appellant retained the services of Claire
Malenfant as part of a contract for services to care for her child, on a casual,
temporary basis, while awaiting admission to the daycare.
7.
Claire Malenfant had no formal childcare training
but had relevant experience, having raised her own two children.
8.
When she retained the services of Claire
Malenfant, the appellant asked her whether she preferred a contract for services
or a contract of employment.
9.
Claire Malenfant replied that she preferred a
contract for services due to her current personal situation (she was receiving support
payments and did not want employee deductions at source).
10.
The appellant does not own a business and is not
an "employer." Her collective agreement requires her to provide
services exclusively to the University, and when she requires assistance with her
research work or teaching activities, the selected individuals are hired as
employees of the University.
11.
The appellant was therefore looking for a person
to provide purely personal domestic services.
12.
The appellant also preferred to be bound to
Claire Malenfant by way of a contract for services.
13.
The parties therefore clearly agreed on a
contract for services.
14.
The number of hours per week varied according to
the university schedule (additional meetings, extra work for the appellant, or conversely
spring break, Christmas break).
15.
The parties agreed on a guaranteed weekly remuneration,
equivalent to 20 hours of service, paid even if the hours were not worked.
16.
Over and above these 20 hours of childcare
services per week, Claire Malenfant received a supplement pro rata to the
number of actual childcare hours, which varied.
17.
It was clearly established that the services
required were on a temporary basis and that the appellant could terminate
Claire Malenfant's services at any time, without prior notice or
compensation, notably as soon as her child was admitted to the daycare.
18.
Claire Malenfant was also required to provide
her services at different locations, i.e. the child's father's home in Lévis,
at her own home, or at the appellant's home in Rivière-Trois-Pistoles, to which
Claire Malenfant agreed.
19.
Claire Malenfant was to provide a receipt
every Friday, for the agreed lump-sum amount and any supplements, and the
appellant (or in some cases when she was not available, the child's father)
gave her a personal cheque as payment.
20.
At the express request of Ms. Malenfant, no
contributions were deducted for any social security plan, the latter wishing to
make her own tax remittances and other contributions. She was not covered by any
decree, collective agreement or contract of employment.
21.
The appellant had no "control" over
the services rendered by Claire Malenfant.
22.
By definition, these services were performed in
her absence.
23.
These services were ultimately always rendered outside
the appellant's home, i.e. at the home of the child's father, who lived near
her workplace, at Ms. Malenfant's home, and at other locations where she
decided, on her own initiative, to bring the child (at the house of her
neighbour, who was a nurse, to a restaurant run by a friend, to friends with
children).
24.
Ms. Malenfant was left alone with the child and
she decided the child's schedule and activities, as well as where to take him
(park, mall, etc.).
25.
These services, provided without supervision,
presupposed tremendous confidence in the methods used to educate and care for
the child and that were decided by Ms. Malenfant herself.
26.
The only instructions the appellant could
provide were of a general nature, that is, only when to provide the services
Ms. Malenfant rendered and to follow standard health and safety guidelines
for a young child (for example, not to forget to give him the medication prescribed
for him).
27.
When her services were retained, Ms. Malenfant stated
that she was not a very good cook but that she could prepare simple meals for
the child. However, it became apparent that she had difficulty cooking even
prepared foods.
28.
It was therefore agreed that she would bring the
child to his father's house for lunch, which he would prepare. Ms. Malenfant still
ate with and fed the child and was paid for the time spent doing this.
29.
The contract between the appellant and Ms.
Malenfant was one that could be terminated at any time, by either party,
without notice, as is only possible with a contract for services.
30.
In fact, it was Ms. Malenfant who decided to
terminate the contract, after a few weeks, without notice. She was contemplating
opening a family daycare at her home but then reconsidered.
31.
The appellant had forewarned Ms. Malenfant that
she could cancel her services at any time if the child was admitted to the
daycare and Ms. Malenfant agreed to this condition.
32.
Ms. Malenfant herself took the initiative to
find the child a place in a daycare.
33.
Ms. Malenfant therefore had no job security and
fully assumed the risk of a contractor.
34.
The appellant did not provide Ms. Malenfant with
work tools.
35.
The child had only his own personal effects
(diapers, clothing, toys, stroller), which are not provided by any daycare
service or even hospitals.
36.
When Ms. Malenfant decided to bring the child to
her home or to the homes of others (often the home of her neighbour who was a
nurse), she used her own belongings, including toys and equipment belonging to
her neighbour.
37.
The appellant did not provide Ms. Malenfant with
work clothing and it was her responsibility to have what was required – for
example, warm clothing to take the child outside or a mobile phone to
communicate in emergency situations – at her own expense.
38.
There was no exclusivity for the services.
39.
Nothing prevented Ms. Malenfant from providing childcare
services to other individuals and the appellant had no way of knowing whether Ms. Malenfant
was caring for other children during or outside the hours she babysat her child.
40.
Ms. Malenfant had contemplated opening a family
daycare in her home and was free to do so. When she informed the appellant of
this possibility, the latter simply told her that this was not the type of
service she had chosen while waiting for a place in the daycare and that as a client,
she would have to think about it if Ms. Malenfant chose to offer her services
in this way.
41.
Ms. Malenfant ultimately decided not to open a
family daycare for personal reasons but the appellant had no power whatsoever
to prevent her from doing so.
42.
Ms. Malenfant could do other things, for herself
or for others, when she provided her services (personal calls, personal
shopping, various other things for herself).
43.
There was no integration into any “business” the
appellant might have.
[3]
Being out of time, the
respondent was unable to file a reply to the Notice of Appeal. Pursuant to an
order of this Court dated April 21, 2011, the facts set out in the Notice of
Appeal are deemed to be accurate.
[4]
At the request of the
respondent, Ms. Malenfant, the caregiver, explained and described the process
that led her to perform the work at issue. She explained that she had read about
a job offer on a specialized site, more specifically, Emploi‑Québec.
[5]
She then expressed her interest
in the work; she met with the appellant, who explained what the work involved.
Once Ms. Malenfant's competence and ability to perform the work had been
evaluated, the parties agreed on a method of weekly remuneration and a schedule
with the exact time work would begin and end. The work was generally performed
from Monday to Thursday inclusively. The appellant told Ms. Malenfant that the remuneration
formula would change after a few months.
[6]
The job was essentially
to care for the young child. The appellant required that her child be outside as
often as possible, claiming that he loved the outdoors and being pushed in his
stroller. At some point, the responsibility of bathing the child was added.
[7]
Ms. Malenfant explained
that regardless of the weather, she took the child on long walks as per the
appellant's requirements and expectations.
[8]
A few times during her
testimony, she stated that she sometimes found it odd that the parents would
require her to take the child out even in rainy and very cold weather.
[9]
In this regard, she
gave an example of one day when she thought it was inappropriate for the child
to be outdoors because it was so cold. She therefore took the initiative to ask
the father if she could take the child for a walk in the mall. The father
agreed and even drove them there.
[10]
She stated that she had
to show up for work at a certain time; she also stated that she always had to
be back at the appellant's home at a certain time so that the child could take
his medication.
[11]
During the walks that
were a big part of her work, she went to the park, to her own home, to a
restaurant or to her neighbour, who loved children.
[12]
These were usually
short stops were she would have something to drink, use the washroom or simply
warm up. Her neighbour loved children; she spent many years as the head nurse
in a maternity ward. She had many toys at her place because she sometimes
babysat her family’s children. She even offered toys to the appellant's child,
for whom Ms. Malenfant was responsible.
[13]
Ms. Demers and Ms.
Wajiki both testified at the appellant's request. They essentially validated
and confirmed Ms. Malenfant's testimony.
[14]
The appeals officer
also testified. He explained how he had come to conclude that the contract was
a contract of service. His testimony revealed something unusual in this type of
case in that he arrived at a conclusion without first hearing the appellant's
version of the facts.
[15]
He explained that he
had made numerous unsuccessful attempts to do so. He described all these
attempts, which were made over a period of almost three months, in
chronological order. He finally concluded that, based on a document he received
by fax, he would probably never obtain the appellant’s full version of the
facts.
[16]
The document concerned questioned
the relevance of the investigation and its quality, but especially its
impartiality and objectivity. He therefore proceeded with the analysis based mainly
on the explanations and exhibits provided by Ms. Malenfant.
[17]
Counsel for the appellant,
who is also the father of the child, testified. He explained that he started
the process to hire a caregiver who met the mother's expectations. He scheduled
the interviews and respected the choice of the mother and appellant.
[18]
These are essentially
the facts relevant to the period at issue. The remainder of the testimony
consisted of assumptions, speculations, interpretations and perceptions.
[19]
The appellant did not
testify except by way of her Notice of Appeal, the content of which, in
accordance with the order dated April 21, 2011, is deemed accurate and, consequently,
sufficient according to appellant’s counsel.
[20]
To resolve the appeal,
the Court has written proceedings, which includes the Notice of Appeal and five
testimonies, mentioned earlier. Two testimonies, in my opinion, are much more
important: that of Ms. Malenfant and that of the counsel of record, Daniel
Payette.
[21]
It would have been
interesting and extremely relevant to hear the appellant; her counsel stated in
this regard that the Court should rely on the content of the Notice of Appeal
and that it serves as proof in the absence of evidence to the contrary.
[22]
However, the content of
the Notice of Appeal was contradicted on a number of fundamental elements by Ms.
Malenfant’s lengthy testimony.
[23]
In such a case, and
especially when the facts have a crucial bearing on the application of the law,
credibility is of utmost importance.
[24]
I have no reason to set
aside Ms. Malenfant’s testimony, which was unrehearsed and straightforward. She
answered honestly and concisely, although on several occasions she mentioned
that she did not remember certain details. This was clearly not a person who
wanted to hide or falsify anything.
[25]
In fact, she made
certain remarks that confirmed not only her credibility but the logical
reasoning behind her answers. For example, on cross examination, she candidly
replied that this was the first time she had ever heard expressions such
"delivery of services;" she was clearly not comfortable with some of
the nuanced language about the nature of the contract at issue.
[26]
She explained that she
learned about the job offer online. This was confirmed by the testimony of Mr.
Payette, who said that he was the one who posted the job offer (Exhibit I-1),
which stated as follows under the [Translation]
"Work requirements and conditions" heading:
[Translation]
Work
requirements and conditions
Education:
High school
Job-related
experience: 1 to 6 months
Competencies:
Responsible, likes children, enthusiastic, enjoys walking
Language(s):
French: proficiency
English:
not required
Salary:
Based on experience, from $8.00 to $12.00 per hour
Number
of hours per week: 25
Employment
status: Permanent
Part-time
Days, evenings
Details:
Three days and one evening (Wednesday) per week
Start
date: 2009-08-17
[27]
According to the job offer,
the employer and person to contact was Daniel Payette, who turned out to be the
counsel of record and who testified.
[28]
Based on the ad, he
argues that it was casual employment. His assertions in this regard are
expressed in his argument plan as follows:
[Translation]
I. The
appellant does not have a “business” and is not an "employer" while
the services rendered by Ms. Malenfant consisted of casual, temporary, purely
personal and domestic services that involved caring for the appellant's child
and that therefore are expressly excluded under paragraph 5(2)(a) of the
Employment Insurance Act, which the respondent should have but
unfortunately did not consider.
[29]
There is absolutely
nothing in the evidence to support or validate the casual work status.
[30]
Work performed by the
same person for the same payer, exclusively and continuously for a long time, very
strongly supports the presence of a contract of service rather than a contract
for services. Moreover, such a reality completely refutes or contradicts the
argument of casual work.
[31]
The cheques provide
validation and confirmation of the preponderance of evidence that the work was
performed in accordance with the content of the job offer.
[32]
For her part, Ms.
Malenfant stated that when she was hired, it was clearly agreed that the way
she was paid would change at some point for essentially the same work, which
consisted in caring for the child of the appellant and the father, Mr. Payette.
[33]
Although the appellant
and her counsel may have a different perception of the nature of the contract
at issue, the facts presented in evidence totally refute the interpretation
that the work was casual and performed as part of a contract for services.
[34]
Such an interpretation
would imply that the Court totally set aside Ms. Malenfant’s testimony because
she lied or attempted to mislead the Court, which is not the case. Quite the
opposite; her testimony was credible and very plausible.
[35]
The manner in which Ms.
Malenfant testified makes her testimony highly credible. She was explicit and subjected
to intense cross-examination, which failed to discredit or undermine her
explanations.
[36]
She read about the job offer
described in Exhibit I-1; she secured an interview following which a contract
of employment was signed. She understood and accepted the requirements; she was
honest about her limitations and qualifications.
[37]
She earned the
confidence of the appellant, who agreed to entrust her with the care of her son,
whom she took for a walk almost every day outside. Such a relationship of trust
is in and of itself very special because we are not talking here of entrusting
a car to a mechanic or installing a shower or painting a house.
[38]
The appellant accepted Ms.
Malenfant’s qualifications and skills; she considered her mature, reliable and
responsible since she entrusted her child to her. This was in no way a case of
a caregiver hired for a few hours or days.
[39]
This was a contract for
an indeterminate period of time that could be terminated for any number of
reasons, some of which have been mentioned; I refer notably to the child's
admission into a daycare. This situation cannot be likened to a teenage sitter
hired for an evening or for the occasional outing.
[40]
This was a contract
whose content, limits, etc. were established in a climate of complete trust,
particularly since the work was to be performed in the absence of the
appellant, the person who paid the remuneration. There was trust, and the
appellant took it for granted that the work would be performed according to her
instructions.
[41]
The appellant, by way
of her counsel, argued that because she was not there when the child was being babysat,
she could not exercise control over the work performed and that consequently
there was no relationship of subordination. In her view, the caregiver had all
the freedom, autonomy and ability to do whatever she pleased, and hence the
services were non-exclusive.
[42]
The Notice of Appeal
mentions that there was a mobile phone that she could use. These are irrelevant
arguments. A contract of service in no way requires that the payer be present while
the work is performed.
[43]
In reply to a decision
involving the care of older children capable of expressing themselves, the
appellant argued that the decision was not relevant because the children were old
enough to talk.
[44]
At this point, I would
like to make one comment: even at a very young age, a child and even a baby is
able to express himself and his feelings, assuming the parents are able to read
what the child is trying to say.
[45]
In this case, I will
not dwell on the argument that the payer’s absence prevents her from exercising
any power of control; case law has repeatedly shown that the concept of control
must be assessed in terms of its power and its ability to be exercised, and
that it is not essential to list situations where it was exercised. Contrary to
the appellant’s assertion, the payer's physical presence during performance of
the work is in no way essential.
[46]
The work provided by Ms.
Malenfant was well defined and modified by the appellant for various reasons on
various occasions, requiring certain adjustments by the caregiver.
[47]
She had to start at a
certain time, return at a certain time for meals and medication, and take the
child out, even when she did not agree with such outings.
[48]
The appellant argued
that the Court should take into account civil law provisions since the contract
of employment was formed in the province of Quebec.
[49]
This is a reasonable
request with which I have no problem, particularly since I believe that, in
this matter, both the common and civil law are consistent. In both cases, the
relationship of subordination is essential and distinguishes a contract for
services from a contract of service.
[50]
If there is no
relationship of subordination, the contract is a contract for services whereas
if there is a relationship of subordination, the contract is a contract of
service, assuming that there is also performance of work and consideration,
usually monetary, defined as remuneration.
[51]
On this question, I
think it relevant to reproduce a long excerpt from the decision in Grimard v.
Canada, 2009 CarswellNat 323, 2009 FCA 47, 2009 D.T.C. 5056 (Fr.),
[2009] 6 C.T.C. 7.
(c) Antimony between civil law and common
law
27 However, it would be wrong to believe that
there is antinomy between the principles of Quebec civil law on this point and
what has been referred to as common law criteria, that is to say, control,
ownership of the tools, chance of profit, risk of loss, and integration of the
worker into the business.
28 I acknowledge
from the outset, and this is often the case, that there is a difference in
conceptualization between common law and civil law that gives rise to another
difference, this time in the approach taken to characterize the nature of the
contract of employment and the contract for services. The civil law approach is
Cartesian and synthetic, while the common law approach is analytical.
29 Accordingly, Quebec civil law defines the
elements required for a contract of employment or for services to exist. On the
other hand, common law enumerates factors or criteria which, if present, are
used to determine whether such contracts exist.
30 Among other things, article 2085 of the
Code states that, for a contract of employment to exist, the work must be under
the direction or control of an employer. Its equivalent for the contract for
services, article 2099, requires the lack of any subordination between the
contractor and the client in respect of the performance of the contract.
31 According to the Le Nouveau Petit Robert and the Le Petit Larousse Illustré dictionaries, subordination of a
person involves his or her dependence on another person or his or her
submission to that person’s control. Therefore, a contract for services is
characterized by a lack of control over the performance of the work. This
control must not be confused with the control over quality and result. The
Quebec legislator also added as part of the definition the free choice by the
contractor of the means of performing the contract.
32 A contract is concluded by the exchange of
the consent of the parties to the contract. Therefore, when a contract is
interpreted, articles 1425 and 1426 of the Code require that the mutual
intention of the parties be determined and that a certain number of
factors be considered, such as the circumstances in which it
was formed.
33 As
important as it may be, the intention of the parties is not the only
determining factor in characterizing a contract: see D & J Driveway Inc. v. M.N.R.,
2003 FCA 453, 322 N.R. 381; Dynamex
Canada Inc. v. Mamona, 2003 FCA 248, 228 D.L.R. (4th) 463. In fact, the
behaviour of the parties in performing the contract must concretely reflect
this mutual intention or else the contract will be characterized on the basis
of actual facts and not on what the parties claim.
34 In addition, as the Judge justly noted,
third parties such as the State may have an interest in ensuring that laws
establishing payroll taxes for employers and employees are complied with,
whereas one or both of the parties to the contract may find it very tempting to
avoid them or to benefit from tax benefits available to contractors but not to
employees.
35 By contrast, as I have already mentioned,
common law has developed criteria for analyzing the relationship between the
parties. However, it must not be thought that these common law criteria are of
no use (or that their use should be prohibited or that such use would be
heresy) in characterizing a contract of employment under Quebec civil law.
36 In Wolf
v. Canada, 2002 FCA 96, [2002] 4 F.C. 396, our colleague Mr. Justice
Décary cited the following excerpt written by the late Robert P. Gagnon in
his book entitled Le
droit du travail du Québec, 5th ed. (Cowansville: Yvon Blais, 2003), page
67, and clarifying the content of the concept of subordination in Quebec civil
law:
[translation] Historically, the civil law first
developed a so‑called strict or classical concept of legal
subordination that was used as a test for the application of the principle of
the civil liability of a principal for injury caused by the fault of
his agents and servants in the performance of their duties (art. 1054
C.C.L.C.; art. 1463 C.C.Q.). This classical legal subordination was characterized by the
immediate control exercised by the employer over the performance of the
employee’s work in
respect of its nature and the means of performance. Gradually, it was relaxed,
giving rise to the concept of legal subordination in a broad sense. The
diversification and specialization of occupations and work techniques often
mean that the employer cannot realistically dictate regarding, or even directly
supervise, the performance of the work. Thus, subordination has come to be equated with the
power given a person, accordingly recognized as the employer, of determining
the work to be done, overseeing its performance and controlling it.
From the opposite perspective, an employee is a person
who agrees to be integrated into
the operating environment of a business so that it may receive benefit of his
work. In practice, one looks for a number of indicia of
supervision that may,
however, vary depending on the context: compulsory attendance at a workplace,
the fairly regular assignment of work, imposition of rules of conduct or
behaviour, requirement of activity reports, control over the quantity or
quality of the work done, and so on. Work in the home does not preclude this sort of
integration into the business.
[Emphasis
added]
37 This excerpt mentions the concept of
control over the performance of work, which is also part of the common law
criteria. The difference is that, in Quebec civil law, the concept of control
is more than a mere criterion as it is in common law. It is an essential
characteristic of a contract of employment: see D & J Driveway, supra,
at paragraph 16; and 9041-6868 Québec Inc. v. M.N.R., 2005 FCA 334.
38 However, we may also note in the excerpt
from Mr. Gagnon that, in order to reach the conclusion that the legal
concept of subordination or control is present in any work relationship, there
must be what the author calls [translation] “indicia
of supervision,” which have been called “points of reference” by our Court in Livreur Plus Inc. v. M.N.R.,
2004 FCA 68, at paragraph 18; and Charbonneau v. Canada (Attorney General) (1996),
207 N.R. 299, at paragraph 3.
…
43 In short, in my opinion there is no
antinomy between the principles of Quebec civil law and the so‑called
common law criteria used to characterize the legal nature of a work
relationship between two parties. In determining legal subordination, that is
to say, the control over work that is required under Quebec civil law for a
contract of employment to exist, a court does not err in taking into
consideration as indicators of supervision the other criteria used under the
common law, that is to say, the ownership of the tools, the chance of profit,
the risk of loss, and integration into the business.
[52]
The appellant argues
that when the legal relationship was created, the purpose of which was to
perform childcare work, the parties clearly expressed their wishes and intention.
At the beginning of the hearing, I thought it relevant to make certain
observations in this regard given the importance placed on this aspect in the
Notice of Appeal.
[53]
On this matter, the
Honourable Justice Letourneau of the Federal Court of Appeal stated the
following in D & J Driveway Inc. v. M.R.N., 2003 FCA 453:
1 The Court once again has to consider
the difficult and elusive question of the insurability of employment. As is
often the case, the question arises in a situation where the parties' intention
is not set down in writing, and where it has not been determined, or was not
the subject of questions to witnesses, at the hearing in the Tax Court of
Canada.
2 It should be noted at the outset that
the parties' stipulation as to the nature of their contractual relations is not
necessarily conclusive and the Court which has to consider this matter may
arrive at a contrary conclusion based on the evidence presented to it: Dynamex
Canada Inc. v. Canada, [2003] 305 N.R. 295 (F.C.A.). However,
that stipulation or an examination of the parties on the point may prove to be
a helpful tool in interpreting the nature of the contract concluded between the
participants.
[54]
In the case at bar,
what was defined as clear and precise by appellant's counsel, who was not
present when the agreement was reached and who did not deem it fit and
appropriate to draw up a precise, specific contract when he was the one who placed
the order with Emploi-Québec (Exhibit I-1), is far from being as clear for the
person who performed the work at issue; despite the appellant’s claims, expressed
by her counsel, the caregiver was unable to sufficiently understand to give informed
consent. And this is especially so given that her understanding was clearly
different from the appellant’s. The facts revealed by the evidence have clearly
demonstrated that the understanding, perception and interpretation of the caregiver
were in fact correct.
[55]
There again, the terms
and conditions of the work had to be consistent with the spirit and letter of
this purported agreement, which does not appear in the evidence at all. Based
on the evidence, one cannot make such a statement or draw such conclusions.
[56]
The appellant's claim
that this was essentially casual work has not been borne out in any way by the
facts. Such an interpretation is not consistent with the description in the ad seeking
to recruit a person to perform the work.
[57]
I reiterate that the
order or job offer was made at the initiative of Mr. Payette himself,
according to his own testimony.
[58]
I do not question Mr.
Payette’s ability to express or formulate the appellant’s expectations. I also reiterate
that Mr. Payette was involved in the selection process in that he planned the
meetings, which he, however, did not attend. He also did not prepare any
document or instrument attesting to the will of the parties, which would have
theoretically made it clear to the caregiver; moreover, such an instrument
would have most certainly prompted a reaction from the caregiver.
[59]
As such, to resolve the
issue as to whether this was casual work, the Court has the long specific,
credible testimony of Ms. Malenfant and the Notice of Appeal of the appellant,
who did not see fit to testify.
[60]
I accept the version
and facts submitted by the caregiver and conclude that this was not casual work,
but a contract of an indeterminate period.
[61]
Lastly, the appellant argues
that the evidence has shown that there was an absence of control or inability
to exercise any control whatsoever.
[62]
I will not dwell on the
test established by common law, namely ownership of the tools, risk of loss,
chance of profit and integration.
[63]
According to civil law,
the three essential conditions for the presence of a contract of service are as
follows:
(1)
Remuneration
(2)
Prestation of work
(3)
Relationship of
subordination
In the case at bar, the three essential
elements are present. There is no doubt as to the remuneration and prestation
of work; the only controversy is in terms of the relationship of subordination.
In this regard, the preponderance of evidence is that such a relationship of
subordination did exist. The fact is that the person who provides the work is
subject to the authority or power of control of the payer of the remuneration.
[64]
This is first and foremost
a factual question where the facts established by the evidence have
overwhelmingly shown that the caregiver was subject to the authority of the
appellant, who had full ability to dictate how the caregiver was to treat the child.
The caregiver did not have the ability to refuse to follow the appellant’s
instructions since doing so would result in dismissal.
[65]
For these reasons, the
appeal must be dismissed and the merits of the original determination giving
rise to the appeal are confirmed.
Signed at Ottawa, Canada, this 30th day of May 2012.
"Alain Tardif"
Translation certified true
on this 12th day of July 2012
Monica F. Chamberlain, Reviser
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