Citation: 2012 TCC 164
Date: 20120530
Docket: 2011-2152(EI)
BETWEEN:
FRANCOIS-PHILIPPE CLOUTIER AND JULIE FARLEY,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CAROLLE LACHANCE,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This is an
appeal from a decision by the Minister of National Revenue (the Minister) that Carolle Lachance (the worker)
held insurable employment with
the appellants from August 3, 2009, to September 10, 2010, under the Employment Insurance
Act (the Act).
[2]
During the period at
issue, the female appellant was a specialist physician; her work hours were
irregular in that she had to deal with emergencies, shifts and so forth. The
appellants placed tremendous importance on the qualities required of a caregiver
to assume the important, but also delicate task, of taking care of their
children in the family home.
[3]
The
evidence has established that the appellants required that a concerted effort
be made to ensure the well-being, comfort, safety and happiness of their
children. Anything not directly related to the children’s care, such as housekeeping,
was secondary.
[4]
Housekeeping
was secondary. The caregiver could do crosswords or word puzzles and make and
receive personal phone calls, if she needed to devote more attention to them,
during the children’s naps.
[5]
The caregiver
had a somewhat different understanding of her duties although she did
understand that her primary role was to care for the children. To illustrate
her perception of the appellants’ authority but also of her duties, the caregiver
said that the female appellant had expressed dissatisfaction with the way she had
cleaned a closet.
[6]
The fact
that the childcare work was the fundamental object of the contract was clearly
established; occasionally, when the female appellant’s shift ended early in the
morning, she would return home and allow the caregiver to leave midway through
the day.
[7]
Moreover,
when away on vacation or on trips, the appellants could have asked the caregiver
to do certain housekeeping chores such as laundry and housework; they did not
do so, and moreover, paid the caregiver the agreed amount. Why? The appellants
did not want the caregiver to quit and look for employment with steady pay.
[8]
Based on
the testimony, it is not easy to identify elements demonstrating that the
appellants exerted their authority. In this regard, the main elements are the incident
concerning the closet cleaning, the fact that the caregiver had to respect a
set schedule in terms of when she arrived at work, where she took care of the
children, and so on.
[9]
However,
the evidence has clearly shown that the main consideration and fundamental
object of the contract was childcare. The evidence has also shown that the caregiver
had all the qualities required to assume her role.
[10]
A
relationship of trust was quickly formed; the parties did everything in their
power to maintain that relationship except, at the end, when it deteriorated
and ultimately resulted in conflict between the parties, which reached its peak
when the caregiver applied for employment insurance benefits.
[11]
The nature
of the contract must be assessed on the basis of a single fundamental question.
Was there a relationship of authority or a relationship of subordination
between the parents and the caregiver? In the case at bar, this was difficult
to ascertain since the facts disclosed by the evidence do not point to clear, unambiguous
situations where the payers clearly exercised their authority except when the
contract was formed and the incident with the closet.
[12]
On this
point, it is, however, important to note that the relationship of subordination
does not have to be demonstrated by specific facts or by a described or a well-documented
situation. The evidence must simply show that the payers had and never waived
such power.
[13]
In the case
at bar, did the caregiver and the appellants negotiate the working conditions as
equals? Did the caregiver have the authority to find a replacement to perform
her duties? Did the caregiver have the authority to insist on certain
behaviours from the children? Did the caregiver have the authority to question,
dispute or ignore certain instructions on how to deal with children? Did the caregiver
have the authority to refuse to put the children to bed at the indicated time, and
so on? These are some of the questions that could not be answered from the
evidence.
[14]
However,
what was clear was that the caregiver's background had been taken into account.
Qualities such as her values, sense of responsibility and childcare skills were
evaluated, weighed and accepted. A strong relationship of trust was formed;
this relationship was so strong that the caregiver was sometimes paid the
agreed wages even though she had not taken care of the children. Why? Because
the parents did not want to risk losing such a competent caregiver.
[15]
This
arrangement resulted in tremendous mutual respect, and it seems that both
parties were very satisfied with the situation. In such a context, it is
difficult to prove situations where discipline was contemplated or reprimands issued.
In the absence of such proof, must we conclude that there was no relationship
of subordination?
[16]
I do not
believe so. Nothing in the evidence supports the conclusion that the caregiver
had the freedom, autonomy and flexibility typical of a contract for services.
The mutual respect of the parties does not necessarily mean the parties
negotiated as equals.
[17]
Should the
status of salaried employee exclude people who hold technical jobs requiring such
highly specialized skills and knowledge that it is impossible to teach them
anything or those who perform work with no supervision from the payer or those
who have superior knowledge?
[18]
The answer
to all these questions is obviously no because holding the power of control is
in no way tied to the payer’s lack of experience; moreover, the status of
employee is not inconsistent with the concepts of liberty, autonomy and
flexibility.
[19]
A person
working in such a special field as providing childcare in the parents’ home
must possess a host of specific qualities that meet the latter’s expectations. A
relationship of total trust must quickly be established in which there is no
room or almost no room for irritants that may affect or impact on the quality
of care since the children are usually the parents’ first and foremost concern.
[20]
It is therefore
clear that a caregiver who possesses all these attributes cannot leave and
entrust the care of the children to anyone else without the approval of the
parents.
[21]
If the
children are entrusted to a daycare, the relationship of trust develops between
the daycare and the parent, and the personal dimension is not as important.
[22]
The
children were the centre of the appellants’ lives; it is clear that they were unwilling
to compromise in any way on the quality of the childcare service.
[23]
The
appellants maintain that the parties agreed that the childcare work would be
performed as part of a contract for services. According to the appellants,
there was no ambiguity in this regard.
[24]
It all
began with ads in the newspapers stating that the caregiver would have to sign
receipts attesting to payment for the childcare services.
[25]
The clear, obvious
conditions of the contract for services as alleged by the appellants were not
as clear and obvious for the person who accepted the caregiver position.
[26]
Meanwhile,
the argument concerning the mandatory receipt has a special dimension where childcare
is concerned. The fact is that this expense has tax consequences whereas other
work (for example, repairs, electricity, plumbing, painting, decor and
landscaping) has no impact on the income tax return when a private residence is
involved. This other type of work is generally performed by a contractor, who
provides a receipt. Obtaining or requiring a receipt has no material impact when
determining the nature of the childcare contract.
[27]
When two
parties agree on a contract of enterprise or for services, the assumption is
that the parties are negotiating as equals and that neither one is influencing
the other, keeping in mind that both parties have an interest in reaching an
agreement. This interest may translate into behaviour suggesting a relationship
of subordination or inequality between the parties.
[28]
This
situation is all the more probable as it is not uncommon for one of the parties
to insist that the contract be one for services because of its numerous advantages,
including cost, ease of management, less paperwork and tax deductions, whereas
it may not be the same for the other party.
[29]
The
appellants argued that the determination should be made on the basis of the
agreement; in other words, that the parties had agreed that the work would be
performed as part of a contract for services.
[30]
When the
will and intent of the parties are clearly expressed and the consent is not
subject to the causes of nullity provided by the civil law, the parties must
assume the legal consequences of their choices, provided the facts associated
with performance of the contract are consistent with the type of contract selected.
[31]
In the case
at bar, the appellants claimed that there was no doubt that the agreement was a
contract for services. For her part, the caregiver stated that this was not how
she interpreted it at all; her understanding was that she had to pay taxes at
the end of the year. One thing is certain; she believed that her job was
protected by employment insurance. The conclusion that can be drawn from the
testimony of the parties to the contract at issue is therefore that the
agreement was not as clear as the appellants claim.
[32]
To be taken
into account, the will and intent of the parties must be demonstrated
throughout the performance of the contract. In other words, the facts relating
to the performance of the work must validate and prove the alleged choice of
contract.
[33]
Childcare
work is quite unique in that it can be performed in different ways and has
certain characteristics. For instance, childcare work can be considered casual
and is therefore not insurable. This is the case when parents hire a teenager,
relative, neighbour or friend to babysit their child or children for what are usually
short periods of time, an evening, an emergency and the like.
[34]
Others
choose to entrust the care of their children to a specialized, licensed outside
business that is subject to all manner of administrative constraints. Others still
use an unlicensed daycare or simply a caregiver who takes care of children in
his or her own home. These are some of the ways childcare work can be performed.
[35]
In the case
at bar, the appellants sought a responsible, reliable and qualified caregiver
with all the necessary qualities to provide their children with the best possible
supervision in the family home, without having to make any concessions or
compromises.
[36]
To obtain
satisfaction, the appellants were prepared to pay very generous remuneration along
with several benefits by offering the caregiver shorter work hours, guaranteed
pay whether or not she worked and tremendous autonomy and freedom in how the
work was done, provided she directed and focused all her attention and interest
on the well-being, comfort, safety and needs of the child or children. The childcare
aspect was not only an important aspect of the work; it was the only important
aspect of the work. Everything else was secondary.
[37]
There was a
strong relationship of trust between the appellants and the caregiver, who
clearly acted in accordance with the appellants’ expectations, so much so that
they demonstrated their appreciation by allowing her to work shorter hours and
paying her even when they were away with the children.
[38]
The
distinction between a contract for services and a contract of service depends
on whether there exists a relationship of subordination, which translates into power
to control the work.
[39]
The power
of control does not have to be exercised; it suffices to hold such power and
not to have waived it. It becomes extremely difficult to determine the nature
of the contract if the person hired performs the work to the satisfaction of
the other party and has all the qualities, qualifications and knowledge in a
context where the person enjoys his or her work.
[40]
In the case
at bar, did the appellants hold such power of control? Did they abdicate this
power or did they exercise it? The appellants have argued that the hiring
conditions were clear and specific in that a receipt was to be issued. It is
true that, generally speaking, workers do not have to sign a receipt when they
collect their pay. Childcare is a different situation, as explained earlier.
[41]
It is very
difficult to characterize work performed by the same person, for and on behalf
of a single payer, the purpose of which is clearly defined and subject to a structure
that is also clearly defined, for an indefinite period, on an ongoing and
recurring basis, as a contract for services.
[42]
A contract
for services is usually quite specific as to its duration or is subject to
specific elements that indicate when it ends. A contract for services may also
be for an indeterminate period with an ongoing, recurring formula. This is the
case for all maintenance contracts, where the contractor is free to work for more
than one payer and to schedule the work as he or she sees fit.
[43]
But that is
where the similarity ends because the contractor has the power, ability and
autonomy to have more than one payer. This autonomy, flexibility and non-exclusivity
give the parties equal status where neither party has power over the other.
[44]
In the case
at bar, the caregiver's hours were not determined by her but by the parents’ professional
constraints. After evaluating her skills, which met the parents’ requirements,
a tremendous relationship of trust was formed, and the work clearly lived up to
their expectations.
[45]
In such a
context, the parents did not have the opportunity to exert or even demonstrate
clear or outward signs of their authority. They were fully satisfied with the caregiver's
work and even paid her when she was not caring for the children to make sure
not to lose her, in other words, to prevent her from looking for steadier, regular
work.
[46]
While
insufficient or conclusive, this element supports the argument for a contract
of service. It forms part of a list of other characteristics supporting the
conclusion that a contract of service was involved.
[47]
I therefore
conclude that the work at issue was performed as part of a contract of service
for the following reasons:
·
the
regularity, continuity and indeterminate duration of the work;
·
the structure,
start and end of work decided exclusively by the payer;
·
the caregiver's
lack of autonomy;
·
the exclusivity.
The caregiver could not delegate her duties to a replacement without
authorization and approval;
·
the special
form of the remuneration;
·
the
unilateral power of intervention and/or control held by the payer; and
·
the
inequality in the contractual relationship. The parties were not equals in the
negotiations despite the fact that the payer was very accommodating and
respectful.
[48]
When taken
alone, these elements are insufficient to conclude that a contract of service
was involved but taken together, they provide a preponderance of evidence in
favour of a contract of service.
[49]
An analysis
of the control exercised by the employer, achieved by examining the instructions
given by the employer with regard to the nature of the work to be performed (the
"what"), concerning the manner in which it is to be performed (the "how"),
the place where it is to be done (the "where") and the time at and
within which it must be done (the "when") as well as the existence of
a right to discipline and control the work, allows the Court to arrive at an assessment
of the work relationship while remaining faithful to the rules of civil law.
[50]
The Act provides no
indication or definition to distinguish a contract of service from any other
type of contract, such as a contract for services. It is up to the Court to
determine the nature of the work by referring to the applicable civil law
principles where Quebec is concerned and to the principle of common law where
the other provinces are concerned.
[51]
For appeals from
provinces where the principle of common law applies, the Tax Court of Canada
and the Federal Court of Appeal weigh the relationship between the service
provider and the recipient according to the criteria set out in Wiebe Door.
In TBT Personnel Services Inc. v. Canada, 2011 FCA 256, the Court of
Appeal summarized the Act as follows:
[8] The leading case on the
principles to be applied in distinguishing a contract of service from a
contract for services is Wiebe Door Services Ltd. v. M.N.R.,
[1986] 3 F.C. 553 (C.A.). Wiebe Door was approved by Justice Major,
writing for the Supreme Court of Canada in 67112 Ontario Ltd.
v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. He summarized the
relevant principles as follows at paragraphs 47-48:
47. […] 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 providers 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 by the worker, and the
worker's opportunity for profit in the performance of his or her tasks.
48. 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 of the
particular facts and circumstances of the case.
[52]
Certain recent
decisions indicate that the common intention of the parties as to the nature of
their legal relationship must also be included in the analysis, when this
intention is consistent with reality:
[9] In Wolf v. Canada, 2002 FCA
96, [2002] 4 F.C. 396 (C.A.), and Royal Winnipeg Ballet v. Canada (Minister
of National Revenue - M.N.R.), 2006 FCA 87, [2007] 1 F.C.R. 35, this
Court added that where there is evidence that the parties had a common
intention as to the legal relationship between them, it is necessary to
consider that evidence, but that it is also necessary to consider the Wiebe
Door factors to determine whether the facts are consistent with the
parties' expressed intention.
[Emphasis
added]
[53]
Therefore, according to
TNT Personnel, the common intention of the parties must be taken into
account when the facts are consistent with this stated intention. The common
intention of the parties must, however, be established; it is difficult to
establish such an intention when there is no written contract and the parties
to the contract offer different testimonies.
[54]
This difficulty is
compounded by the fact that the parties to a contract are often unequal in
terms of the knowledge required to make certain distinctions and to understand
the nuances. Such shortcomings may exist even in the presence of a written
instrument. Consequently, it is important to demonstrate that the employee understood
the legal consequences when he or she signed the contract, including the impact
on the possibility of collecting employment insurance benefits.
[55]
It must be pointed out
that TNT Personnel is a case from the province of Ontario, and hence,
the Court of Appeal did not have the advantage of referring to the Civil
Code of Québec in this area. Indeed, the Interpretation Act, R.S.C.
1985, c I-21, stipulates that when a federal statute includes a concept of private
law, reference must be made to the applicable provincial statute:
8.1 Both the common law and the civil
law are equally authoritative and recognized sources of the law of property and
civil rights in Canada and, unless otherwise provided by law, if in
interpreting an enactment it is necessary to refer to a province's rules,
principles or concepts forming part of the law of property and civil rights,
reference must be made to the rules, principles and concepts in force in the
province at the time the enactment is being applied.
8.2 Unless otherwise provided by law,
when an enactment contains both civil law and common law terminology, or
terminology that has a different meaning in the civil law and the common law,
the civil law terminology or meaning is to be adopted in the Province of Quebec
and the common law terminology or meaning is to be adopted in the other
provinces.
[56]
In a publication on the
topic of Canadian bijuralism, Justice Archambault established the applicability
of section 8.1 of the Interpretation Act in determining the employment
relationship within the meaning of section 5 of the Employment Insurance Act. Following
a review of case law on the interpretation of federal statutes that refer to
provincial private law concepts, notably after discussing the doctrines of
complementarity and dissociation, Justice Archambault concluded that the
correct approach, following the amendment of section 8.1 of the Interpretation
Act in 2001, was that of complementarity:
[33] In my opinion, before we follow precedents in which
the courts have applied the principle of dissociation or the principle of
uniformity, we must ask whether the interpretations that they adopted or the
principles that they expounded are still justified in light of section 8.1 IA.
Before the coming into force of this section, the courts allowed themselves a
certain latitude to apply either the principle of uniformity or the principle
of complementarity. Since the coming into force of section 8.1, they are
required to adhere to the principle of parliamentary sovereignty and to use the
principle of complementarity in interpreting any federal enactment.
[57]
The Civil Code of Québec,
R.S.Q., c C-1991, defines a contract of employment in article 2085:
2085. A contract of employment is a
contract by which a person, the employee, undertakes for a limited period to do
work for remuneration, according to the instructions and under the direction or
control of another person, the employer.
[58]
Therefore, in Quebec,
the employment contract has three characteristics: (1) the work; (2) the
remuneration; and (3) direction or control by the employer – which can
also be referred to as a relationship of subordination.
[59]
After examining the
provisions of the Civil Code of Québec to distinguish between a contract
for services and a contract of employment, Justice Archambault concludes as
follows:
[38] The definition of a contract of employment in article
2085 C.C.Q. identifies the three essential components of this type of contract:
(i) the work, (ii) the remuneration and (iii) the relationship of
subordination. In the case of a contract for services, there are four conditions
to be met according to articles 2098 and 2099 C.C.Q.: (i) the provision of
a service, (ii) for a price, (iii) freedom for the provider of
services to choose the means of performing the contract, and (iv) the absence
of any relationship of subordination in respect of its performance. Analysis of
articles 2085, 2098 and 2099 indicates that the relationship of subordination
is not only an essential "component" of a contract of employment but
is also the "distinguishing" feature of this type of contract as
compared to a contract for services.
[60]
As such, Justice
Archambault identified the relationship of subordination as the distinguishing factor
between a contract of employment and a contract for services according to the Civil
Code of Québec.
[61]
With respect to the
intention of the parties and the expression of the will of the parties, Justice
Archambault states the following in his article:
[97] Even if the contracting parties have manifested their
intention in their written or oral contract or if their intention can be
inferred from their conduct, this does not mean that the courts will necessarily
view it as determinative. As Décary J.A. indicated in Wolf, supra,
performance of the contract must be consistent with this intention. Thus, the
fact that the parties have called their contract a "contract for
services" and have stipulated both that the work will be done by an
"independent contractor" and that there is no employer-employee
relationship does not necessarily make the contract a contract for services. It
could in fact be a contract of employment. As article 1425 C.C.Q. states, one
must look to the real common intention of the parties rather than adhere to the
literal meaning of the words used in the contract. The courts must also verify
whether the conduct of the parties is consistent with the statutory
requirements for contracts. According to Robert P. Gagnon:108
[Translation]
91 — Factual assessment — Subordination
is verified by reference to the facts. In that respect, the case law has always
refused to simply accept the parties' description of the contract:
In the contract, the
distributor himself acknowledges that he is working on his own account as an
independent contractor. There is no need to return to this point, since doing
so would not alter the reality; furthermore, what one claims to be is often
what one is not.
[Emphasis
added].
[98] In D & J Driveway,
Létourneau J.A. of the Federal Court of Appeal wrote:109
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.
[Emphasis
added].
___________________
108 Supra (note 31), at 66.
109 Supra (note 4). See also the
comments of Noël J.A. in Wolf reproduced at para. 90 above. See also
note 93.
[99] Judges may therefore recharacterize the contract
so that its name reflects reality. In France, the recharacterization of a
contract results from the application of the reality principle.110 The
Cour de cassation has adopted an approach similar to the Canadian one:111
[Translation] Whereas
the existence of an employment relationship depends neither on the expressed
will of the parties nor on the name they have given to their agreement but
rather on the factual conditions in which the workers' activity is performed;
...
___________________
110 Verdier, Coeuret et Souriac, supra. (note 49),
at p. 315.
111 Cass. soc., 19 December 2000, Bull.
civ. 2000.V.337, No. 437 (lessee of a taxi: employee). See also Cass. soc., 23
April 1997, Bull. civ. 1997.V.103, No. 142 (pastor of Adventist churches: referred
back to the Court of Appeal).
[100] In my opinion, this verification that the actual
relationship and the parties' description of it are consistent is necessary
when interpreting contracts of employment since the parties may have an
interest in disguising the true nature of the contractual relationship between
the payer and the worker. Experience shows, in fact, that some employers,
wanting to reduce their fiscal burden with respect to their employees,
sometimes decide to treat them as independent contractors. This decision can be
made either at the outset of the contractual relationship or later on. Similarly,
some employees could have an interest in disguising their contract of
employment as a contract for services because the circumstances are such that
they do not foresee that they will need employment insurance benefits and they
want to eliminate their employee contributions to the employment insurance
program, or they desire more freedom to deduct certain expenses in computing
their income under the Income Tax Act.
[101] Since the EIA generally authorizes the payment
of employment insurance benefits only to employees who lose their employment,114
the courts must be on the alert to unmask false self-employed workers.
The courts must also ensure that the employment insurance fund, which is the
source of these benefits, receives premiums from everyone who is required to
pay them, including false self-employed workers and their employers.
___________________
112
For a study of the problems created by this phenomenon, see the discussion
paper of the Law Commission of Canada, Is Work Working? Work Laws that Do a
Better Job, December 2004, on line: http://www.lcc.gc.ca/pdf/work.pdf.
113 Subsection
8(2) of the Income Tax Act provides that no deductions may be made other
than those permitted by that Act. If a worker is self-employed, he can
generally deduct any current expense incurred for the purpose of gaining or
producing income from a business.
114
See note 7.
[62]
Justice Archambault concludes
that in all cases, the performance of the contract, that is, the manner in
which the parties conducted themselves, must be examined to determine the
nature of the contract:
[102] The necessity of proving that the contract has been
performed exists not only where the parties have explicitly or implicitly
manifested their intention to enter into either a contract of employment or a
contract for services, but in all cases where proof of their intention is
insufficient or lacking. Proof that the contract has been performed involves
the three essential components required in order for there to be a contract of
employment. In general, proof of the first two elements (the work and the
remuneration) will not be much of a problem since these are physical facts that
are relatively easy to establish. Proving the existence of legal relationship
of subordination, namely the power of direction or control that the employer
exercised or could have exercised, is, on the other hand, a very delicate task.
It will be all the more so if the employer has exercised little or no direction
or control.
[63]
Justice Archambault then
gives indications from Quebec civil law to establish whether or not a legal
relationship of subordination exists:
[103] The best evidence will be direct evidence of
facts establishing that the work was really performed under the payer's
direction and control. Such evidence can be provided by documents or testimony
revealing the specific instructions given to the worker not only with regard to
the work to be performed (the "what"),115 but also
concerning the manner in which it is to be done (the "how"),116 the
place where it is to be done (the "where"), and the time at and
within which it must be done (the "when"). To these facts can be
added those showing that the payer supervised the work, 117 inter
alia, by requiring the worker to report on a regular basis, by regularly
completing evaluations of his work, by meeting with the worker to communicate
to him the results of the evaluations, and, perhaps by disciplining him.118
Taking such evidence as a whole, it could be relatively easy to conclude that a
relationship of subordination exists.
115 Services Barbara-Rourke
Adaptation Réadaptation c. Québec (Sous-ministre du Revenu), [2002] J.Q. no.
470 (QL) (C.A. Qué.), at paras. 10, 44-48 (persons responsible for the delivery
of foster home services (in the residence of a third person) recruited by a
rehabilitation centre for persons with an intellectual disability: employees); Guérette
c. Lapierre, [2003] J.Q. no. 4952 (QL) (S.C. Qué.), at paras. 25-26
(construction of a balcony at the payer’s cottage by a retired worker:
employee).
116 In my opinion, when a payer imposes the
methods or means of performing a job on a worker, he is directing that worker.
The proof that the payer has acted in this way constitutes direct evidence of
the exercise of the power of direction and is not merely evidence by indicia.
It should however be noted that the line between direct evidence and indirect
or circumstantial evidence may be tenuous. To the extent that the direct
evidence of the facts is not considered sufficiently probative (e.g., because
of the limited number of instructions), these facts might be treated as indicia
to be considered with the other indicia described below.
For examples from the case law of assessing the power of
control exercised over the “how,” see: Sauvé, supra (note 4), at paras.
19, 22; Les Entreprises Gérald Petit, supra (note 101), at para. 21; Neblina
Spa Enr., supra (note 95), at paras. 5, 14, 16; Services de santé
Marleen Tassé, supra (note 31), at paras. 12, 16, 24, 25, 30, 50, 70-74;
Québec (Commission des normes du travail) c. Desrochers, 2001 IIJCan
8641 (C.Q.), at paras. 23-26 (work in a shoe repair shop: employee); Dr Denis
Paquette, supra (note 99), at paras. 6, 33 (nos. 6-8), 36, 49-52.
117
Services Barbara-Rourke, supra (note 115), at para. 44; Les
Entreprises Gérald Petit, supra (note 101), at paras. 10, 15, 21; Importations
Jacsim, supra (note 100), at para. 22; Guérette, supra (note 115),
at para. 25; Services de santé Marleen Tassé inc., supra (note 31), at
paras. 12, 20-22, 27-29, 73, 87; Seitz, supra (note 98), at paras. 15,
22, 25, 45, 62.
[64]
The preponderance of
evidence has established that the parties to the contract had a very different
interpretation of its nature. This same evidence has also established that the
appellants never abdicated or waived their power of control, expressed and
demonstrated primarily when the agreement was reached. In other words, the caregiver
did not have the same assessment of the nature of the contract as the
appellants. As for the manner in which the work was performed, the evidence
does not support the appellants' interpretation that this was a contract for
services. The preponderance of evidence does not support the conclusion that
the appellants met the burden of proof incumbent upon them to win this case.
[65]
For these reasons, the
appeal is dismissed.
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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