Productions Petit Bonhomme Inc. / Ce 2000-4198(ei) v. M.N.R., docket 2000-3683-EI

Date: 20021106

Docket: 2000-3683-EI,

2000-4198-EI,

2000-4917-EI,

2000-4918-EI

BETWEEN:

LES PRODUCTIONS PETIT BONHOMME INC.,

LES PRODUCTIONS BIBI ET ZOÉ INC.,

Appellants,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

CHRISTIAN ODELL,

Intervener.

Reasons for Judgment

Angers, J.T.C.C.

[1]            These four appeals are from decisions by the Minister of National Revenue ("the Minister") that during the years at issue the workers for the appellant companies held insurable employment within the meaning of the Employment Insurance Act ("the Act") because there was an employer-employee relationship between the appellant companies and each of the workers named in the Notices of Appeal. The appeals were heard on common evidence.

[2]            Appeal number 2000-3683(EI) of Les Productions Petit Bonhomme Inc. involves 44 workers for this appellant and covers the production period from June 8 to October 9, 1998. These workers were distributed among 11 different types of positions, each with its own particular characteristics. There were 10 camera operators, three sound recordists, four switchers, four unit managers, five boom operators, two makeup artists, two prop persons, four grips, seven electricians, three directors of photography, and two video recorder operators. The 44 workers concerned are as follows:

Audy, Michel                                                  Lampron, Sylvain

Béland, Michel                                                                Ledoux, Francis

Benoit, Claude                                                                 Leduc, Benoit

Blanchard, Claude                                                           Lévesque, Alain

Blanchette, François                                       McCraw, Kim

Bonneville, Marcel                                                          McLaughlin, Sylvie

Bourassa, Mario                                                              Martineau, Serge

Brien, Mathieu                                                                 Meunier, Claude

Charron, Martin                                                               Migneault (Mignot), Julie

Chartrand, Jacques                                                         Moisan, Hélène

Cornescu, Horia                                                              Nicolas, Michel

Desmarais, Richard                                         Pérusse, Gabriel

Dion, Joane                                                      Pilon, Martin

Doré, Daniel                                                     Proulx, Eddy

Dufour, André                                                                 Provencher, Marc

Forget, Normand                                                             Rhéaume, Bruno

Gadoua, Pierre                                                                 St-Jean, Daniel

Hébert, Denis                                                   Tanguay, François

Hudon, Julie                                                     Tessier, Jenny

Jacob, Lyne                                                      Vachon, Jean-Pierre

Laliberté, Guy                                                  Vanier, Luc

Lamontagne, René                                                          Vanier, Pierre

[3]            In reaching his decision in this case, the Minister relied in particular on the following assumptions of fact, of which the appellant company either admitted or denied the truth:

                                [TRANSLATION]

(a)            The appellant is a company that produces children's television programs. (admitted)

(b)            Mr. Paul Cadieux was the sole shareholder of Megaphone Inc., which is the owner of the appellant company. (admitted)

(c)            In 1998, the appellant produced, among other things, a television series entitled "Papi Bonheur" that was broadcast on TFO-TVO, Ontario's educational channel. (denied)

(d)            In order to complete that production contract of fifty-two 26-minute episodes, the appellant hired a total of 45 workers for 11 different types of positions. (denied)

(e)            Each worker hired by the appellant signed a hiring contract provided in the collective agreement concluded among the Association des producteurs de films et de télévision du Québec (APFTQ), the Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ), and the Association des professionnel-le-s de la vidéo du Québec (APVQ). (admitted with regard to this appeal only)

(f)             The production period for the "Papi Bonheur" series extended from June 8 to October 9, 1998 and included 52 days of filming. (admitted)

(g)            The workers were hired according to filming requirements, and depending on their availability; they would not necessarily work every day. (admitted)

(h)            Filming an episode of "Papi Bonheur" required the participation of 15 workers occupying, and performing the duties of, the following 11 positions: camera operators (3), electricians (2), director of photography, prop person, makeup artist, unit manager, grips (2), sound recordist, switcher, boom operator, and video recorder operator. (admitted)

(i)             The series was filmed in studios rented by the appellant in Ville LaSalle. (admitted)

(j)             The workers were to report for work at the times set by the appellant's production manager. (denied)

(k)            The day's work was supervised and planned by the director designated by the appellant. (denied)

(l)             The workers had to complete and submit time sheets provided by the APVQ, indicating the hours actually worked. (denied)

(m)           Each worker was paid by the hour under an agreement previously reached between the parties. (denied)

(n)            The appellant provided the location for the filming and most of the equipment required to film the series. (denied)

[4]            The assumptions of fact concerning each type of position are similar in the four appeal cases and will be reproduced in the analysis of these various positions.

[5]            Appeal number 2000-4198(EI) of Les Productions Bibi et Zoé Inc. involves 25 workers for this appellant and covers the production period from October 16, 1998 to March 5, 1999. The workers were distributed among eight types of positions similar to those at issue in the preceding appeal case. There were four camera operators, one sound recordist, five switchers, two unit managers, two boom operators, three grips, six electricians, and two directors of photography. The 25 workers concerned are as follows:

Ally, Richard

Audy, Michel

Boyard, Stephen

Benoit, Claude

Boisvert, Luc

Bourassa, Mario

Brien, Mathieu

Chartrand, Jacques

Giroux, Rémi

Janson, Stéphane

Kasparian, Berge

Lamontagne, René

Lavallée, Martin

Ledoux, Francis

Liboiron, Benoit

Maher, Michel

Prince, Marcel

Rouleau, Claude

Roy, Hugo

St-Cyr, Pierre

Tessier, Éric

Tremblay, Sébastien

Vachon, Jean-Pierre

Vanier, Luc

Vanier, Pierre

[6]            In reaching his decision in this case, the Minister relied in particular on the following assumptions of fact, and with one exception, the appellant company either admitted or denied the truth of each:

                                [TRANSLATION]

(a)            The appellant is a filmmaking company that specializes in producing children's television programs. (admitted)

(b)            Mr. Paul Cadieux was the sole shareholder of Megaphone Inc., which was the owner of the appellant company. (admitted)

(c)            In 1998-99, the appellant produced, among other things, a television series entitled "Bibi et Zoé" that was broadcast on TFO-TVO, Ontario's educational channel. (denied)

(d)            In order to complete that production contract of twenty-six 26-minute episodes, the appellant hired a total of 58 workers for 10 different types of positions. (denied)

(e)            The workers hired by the appellant signed a hiring contract provided in the collective agreement concluded among the Association des producteurs de films et de télévision du Québec (APFTQ), the Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ), and the Association des professionnel-le-s de la vidéo du Québec (APVQ). (denied)

(f)             The production period for "Bibi et Zoé" extended from October 16, 1998 to March 5, 1999 and included 24 days of filming. (admitted)

(g)            The workers were hired according to filming requirements, and depending on their availability; they would not necessarily work every day. (admitted)

(h)            Filming an episode of "Bibi et Zoé" required the participation of 13 workers occupying, and performing the duties of, the following 10 positions: camera operators (2), electricians (2), director of photography, prop person, makeup artist, unit manager, grips (2), sound recordist, switcher, and boom operator. (admitted)

(i)             The series was filmed in studios rented by the appellant in Ville LaSalle. (admitted)

(j)             The workers were to report for work at the times set by the appellant's production manager. (denied)

(k)            The day's work was supervised and planned by the director designated by the appellant. (denied)

(l)             The workers had to complete and submit time sheets provided by the APVQ, indicating the hours actually worked. (denied)

(m)           Each worker was paid by the hour under an agreement previously reached between the parties. (denied)

(n)            The appellant provided the location for the filming and most of the equipment required to film the series. (denied)

(o)            The appellant was required to contribute to the APVQ's group RRSP and group insurance. (denied)

(y)            The appellant had the right to control the work of all the workers hired to produce the programs. (denied)

(z)             In the event that the broadcaster refused to air the series, the appellant would be solely responsible for refilming at its expense; the workers would be paid again in this eventuality. (argument)

(aa)          In addition to paying the workers, the appellant contributed to the workers' group RRSP and group insurance. (admitted)

[7]            Appeal number 2000-4917(EI) of Les Productions Bibi et Zoé Inc. involves 20 workers for this appellant and covers the production period from October 16, 1998 to March 5, 1999. The workers were distributed among nine types of positions similar to those at issue in the two above-noted appeal cases. There were four camera operators, one sound recordist, three unit managers, one boom operator, one makeup artist, one hairstylist, one prop person, five grips, and three electricians. The 20 workers concerned are as follows:

Clément, Éric

Cornescu, Horia

Côté, Manon

De Gagné, Michel

Desgranges, Bruno

Desmarais, Richard

Gauthier, Pierre

Gervais, Gaétan

Lampron, Sylvain

Leblanc, Thierry

Meunier, Claude

Migneault, Julie

Moisan, Hélène

Parent, Sylvie

Pérusse, Gabriel

Pilon, Martin

Provencher, Marc

Robitaille, René

Roy, Stéphane

Villeneuve, Michel

[8]            In reaching his decision in this case, the Minister relied on assumptions of fact similar to those in appeal number 2000-4198(EI), which are reproduced above.

[9]            The last appeal case, namely appeal number 2000-4918(EI) of Les Productions Bibi et Zoé Inc., involves 23 workers and covers the production period from October 16, 1998 to March 5, 1999. At issue are eight types of positions, which were occupied as follows: one camera operator, one makeup artist, one costume designer, two prop persons, one electrician, one sound mixer, one set designer, and five picture editors. The 23 workers concerned are as follows:

Barro, Jonathan

Bergeron, Charles

Daneau, Marc

Dumas, Patrick

Ellis, Anthony

Fortin, Marcellin

Gagnon, Jean

Gratton, Paul

Lefebvre, Robert

Lord, Jean-François

Morin, Richard

Odell, Christian

Proulx, Eddy

Raby, Colombe

Rhéaume, Bruno

Rhéaume, Éric

Rhéaume, Pierre

Rivard, Pierre

Rousseau, Jean-François

St-Denis, Anne

Tapp, Annie

Thibault, Louise

Valiquette, Michel

[10]          The appellant company considered some of these workers to be "off-set" workers. Their duties are described by the respondent in the Reply to the Notice of Appeal; these descriptions will be reproduced below.

[11]          With respect to the workers Christian Odell, Éric Rhéaume, Pierre Rivard, Jean-François Rousseau, Pierre Rhéaume, Paul Gratton and Jean Gagnon, the respondent has agreed that the Court shall declare them self-employed workers. I therefore issue an order so declaring. As regards the worker Robert Lefebvre, at the hearing the appellant company informed the Court that it was discontinuing the proceeding insofar as it concerned him.

[12]          The parties chose to convert the positions at issue into representative cases in order to minimize the number of persons testifying. In fact, one or more workers testified concerning each of these representative cases. The representative cases on which the parties agreed are as follows: prop person, switcher, camera operator, costume designer/dresser, head set designer, director of photography, electrician, grip/set constructor, grip, makeup artist, sound mixer, on-line editor, video recorder operator, boom operator, sound recordist, unit manager, and miscellaneous.

[13]          Each of the workers concerned in the four appeals is included in one of these representative cases. The list of the workers in question is reproduced in Exhibit I-2, Tabs 1 and 15. For each worker, this list indicates the position (representative case) held and the appeal docket number.

[14]          The parties have agreed that this Court's decision in the case of worker Gabriel Pérusse would apply to the case of worker Michel Audy, since both these workers were classified in the grip/set constructor category in the representative cases. With respect to the grips, the parties agreed that the testimony of Sylvain Lampron and Mr. Pérusse (except for the part of the latter's testimony that concerned his duties as a set constructor) would be taken as representative of the work carried out by the other grips, namely, Marcellin Fortin, Pierre Gauthier, René Robitaille and Michel Villeneuve. As well, the parties agreed that Richard Morin was a prop person, just like Anne St-Denis and Hélène Moisan. Christian Odell, the intervener in appeal number 2000-4918(EI), testified at the hearing; in the context of the representative cases, he is in the "miscellaneous" category.

[15]          At issue in these four appeals is whether the 92 workers included in the representative cases held with the appellant companies employment that was insurable within the meaning of paragraph 5(1)(a) of the Act. Were they hired under a contract of service or a contract for services?

[16]          The onus is on the appellants to establish on a balance of probabilities that these workers were hired under contracts for services, not contracts of service.

The law

[17]          The procedure I must follow in determining whether the contracts signed between the appellant companies and the workers were contracts of service or contracts for services is clearly set out by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, 87 DTC 5025. In this decision, MacGuigan J. analyses the case law as well as the four tests enunciated by Lord Wright in Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161, concluding as follows at page 560 (DTC, page 5028):

Taken thus in context, Lord Wright's fourfold test is a general, indeed an overarching test, which involves "examining the whole of the various elements which constitute the relationship between the parties." In his own use of the test to determine the character of the relationship in the Montreal Locomotive Works case itself, Lord Wright combines and integrates the four tests in order to seek out the meaning of the whole transaction.

[18]          MacGuigan J. continues as follows at page 562 (DTC, page 5029):

. . . I interpret Lord Wright's test not as the fourfold one it is often described as being but rather as a four-in-one test, with emphasis always retained on what Lord Wright, supra, calls "the combined force of the whole scheme of operations," even while the usefulness of the four subordinate criteria is acknowledged.

[19]          At page 563 (DTC, page 5030), MacGuigan J. adds:

What must always remain of the essence is the search for the total relationship of the parties. Atiyah's counsel in this respect, supra, at page 38, is, I believe, of great value:

[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose . . . . 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. The plain fact is that in a large number of cases the court can only perform a balancing operation, weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. In the nature of things it is not to be expected that this operation can be performed with scientific accuracy.

[20]          Essentially, the tests to which the Federal Court of Appeal refers and which must be considered along with the evidence as a whole are as follows:

(1)            the degree, or the absence, of control exercised by the alleged employer;

(2)            ownership of the tools;

(3)            chance of profit;

(4)            risk of loss; and

(5)            integration.

[21]          Lastly, at page 564 (DTC, page 5030) MacGuigan J. reproduces certain comments by Cooke J. concerning the approach to be taken:

Perhaps the best synthesis found in the authorities is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732 (Q.B.D.), at pages 737-738:

The observations of LORD WRIGHT, of DENNING, L.J., and of the judges of the Supreme Court in the U.S.A. suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?". If the answer to that question is "yes", then the contract is a contract for services. If the answer is "no" then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The application of the general test may be easier in a case where the person who engages himself to perform the services does so in the course of an already established business of his own; but this factor is not decisive, and a person who engages himself to perform services for another may well be an independent contractor even though he has not entered into the contract in the course of an existing business carried on by him.

[22]          This approach was endorsed by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] SCC 59. In that decision, the Supreme Court reviews all the principles set out in Wiebe Door and elsewhere, and ultimately makes the following clarifications, at paragraphs 46, 47 and 48:

46 In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. Lord Denning stated in Stevenson Jordan, supra, that it may be impossible to give a precise definition of the distinction (p. 111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to the many variables of ever changing employment relations . . ." (p. 416). Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563, citing Atiyah, supra, at p. 38, that what must always occur is a search for the total relationship of the parties:

[I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves a useful purpose. . . . 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.

47 Although there is no universal test to determine whether a person is an employee or an independent contractor, 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.

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 on the particular facts and circumstances of the case.

[23]          I have also read the case law submitted by counsel, particularly the cases that are most like the situation here. We must analyse this case law along with the evidence as a whole in order to determine the nature of the total relationship between the appellant companies and the workers.

Facts

[24]          The appellants are production companies that specialize in producing children's television programs. During the years at issue, they produced two television series entitled "Papi Bonheur" and "Bibi et Zoé". The first series was made up of fifty-two 26-minute episodes, and the second consisted of twenty-six 26-minute episodes. Both programs were broadcast by TFO-TVO. Series of this type are produced either following a broadcaster's making a request and at the same time suggesting certain parameters, or as a result of an idea submitted by a producer to a broadcaster.

[25]          In the present cases, TFO-TVO was seeking children's programs. The appellant companies therefore submitted proposals and eventually reached an agreement with TFO-TVO to produce the programs in question. Once the initial scripts are written, the appellants must choose a production manager, a production co-ordinator, a director, and an assistant director. At the same time, the scripts are sent to certain tradespeople who work during what is called the pre-production stage. Here, those tradespeople were set designers, puppet makers, prop persons, and costume designers. Steps are also taken to reserve a studio for filming and a casting director is hired to find actors for the various roles.

[26]          The selected actors' names are submitted to the broadcaster for approval. Once this approval has been received, the appellant companies conduct a series of auditions and then submit their final choices to the broadcaster for approval. The filming dates depend on the actors' availability. As soon as the filming dates have been set, the production manager and the production co-ordinator bring together the people they will need for production purposes (some will not be available, and others will be replaced). These persons' hourly rates are then negotiated and they sign their contracts on the first day of filming.

[27]          Without going here into the details of each participant's role in the filming of this type of production (I shall do so later), suffice it to say for the moment that the scripts are distributed two weeks in advance to the actors, costume designers, unit managers, director and prop persons. Once the sets are up and the lighting installed, the director explains the day's action to all the participants. The director explains how the scene will unfold and tells the camera operator what is wanted. The director is seated near the switcher, who switches camera images. All the participants communicate among themselves using an intercom system. In constant communication with one another, they go about their work, making any necessary adjustments before each final take. At the end of all this, there is the post-production stage, which consists of editing the finished product to be presented to the broadcaster.

[28]          Hiring is done on the basis of confidence. According to Paul Cadieux, agent for the appellant companies in these cases, one hires those whom one knows. People are informed of the filming dates and their availability is noted. The production manager or the production co-ordinator is responsible for contacting people. According to Mr. Cadieux, although there are standard rates, sometimes certain persons are paid more. He explained that the Association des producteurs de films et de télévision du Québec (APFTQ), the Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ), and the Association des professionnel-le-s de la vidéo du Québec (APVQ) have a collective agreement that was in effect during the years at issue (Exhibit I-2, Tab 4). Clause 1.04 of this collective agreement explains that the purpose of the agreement is to establish minimum working conditions for technicians in any of the positions listed in clause 1.02, to foster good relations between the parties, and to set up a dispute settlement process. The positions listed included the representative cases identified in these appeals, although some of the workers named in these appeals are not APVQ members.

[29]          The collective agreement provides for a hiring contract; this is the contract that was signed between the appellant companies and the workers who were APVQ members. Each contract was adduced in evidence in these appeals and neither party alleged that these contracts were not adhered to. It should be noted that, in certain cases, conditions better than the minimum conditions were granted, higher hourly rates being one example. According to Mr. Cadieux, under the heading [TRANSLATION] "replacement conditions" in the contracts was written [TRANSLATION] "mutual understanding", and this was done as a courtesy to the workers. Other clauses of the collective agreement have to do with dismissal, contract cancellation, hours of work, pay rates, statutory holidays, living expenses and travel. Provision is also made for penalties payable by the party cancelling the hiring contract in the circumstances described in the collective agreement.

[30]          The production manager is responsible for logistics. In fact, this person does everything possible to ensure that, at the end of the process, the production company has a cassette to present to the broadcaster. The production manager makes sure that the technicians have everything they need to do their jobs, and that the required equipment is in the right place at the right time. In the case of the productions involved here, the production manager hired the technicians and discussed their availability and their wages with them. The technicians are all freelances; often the same technicians are hired again. They were obliged to abide by the collective agreement. According to the assistant director, the production schedule was designed to improve filming efficiency and avoid needless moving of sets.

[31]          The production co-ordinator is the link between certain technicians and the director. When the director clarifies or changes something, the production co-ordinator informs the workers concerned. Another part of the co-ordinator's job is to ensure that everyone is present. In the case of one of the productions in question here, it was the production co-ordinator who completed the time sheets. Sometimes the exact time was unimportant because the collective agreement provided for a guaranteed minimum of 10 hours per working day, even if a person actually worked fewer hours.

[32]          During a production, it is the director who directs the activities as a whole. The director encourages everyone's participation because, according to Claude Blanchard, all the participants are professionals, friends, and reliable persons who know what they are doing. That said, Mr. Blanchard acknowledged that, if there is a problem to be solved, it is the director who must ultimately make a decision. The director has overall responsibility, and synchronizes shooting and filming. According to Mr. Blanchard, the two organization charts adduced in evidence are unrealistic. He considers all participants equals since it is important that everyone talk to each other. He maintained that a spider web would better represent what actually happens. He sees himself as pulling things together so that the finished product is acceptable. He also recognizes that he must settle certain issues if necessary. When all is said and done, he intervenes throughout the process, from beginning to end.

[33]          Paul Lauzon is a labour relations advisor for the APVQ. He explained that the APVQ sees to it that the collective agreement is respected and stated that its mandate is to bring together television technicians and artists. A copy of the application for certification submitted by the APVQ to the Canadian Artists and Producers Professional Relations Tribunal was adduced as Exhibit I-2, Tab 11. That document specified that the APVQ was applying for certification to represent a sector including all independent professional contractors in Quebec hired by producers. The application for certification described lastly the positions involved, which include the representative cases identified herein. Although the application for certification referred to independent contractors, Mr. Lauzon stated that 90 per cent of the persons concerned are employees for whom source deductions are made, as provided in clause 14.04 of the collective agreement. Under cross-examination, Mr. Lauzon acknowledged that some members were considered to be self-employed and that no source deductions were made in their case.

[34]          I consider the collective agreement a factor to be taken into account in analysing the nature of the total relationship between the workers and the employers. It is clear, however, that although the APVQ is certified to represent only self-employed workers, some of these workers are treated as employees by the producers. The principle underlying provincial and federal legislation on the status of artists and of all persons working for producers is that these workers, who are deemed to be self-employed, must be given the power to bargain collectively. However, the evidence has clearly established that not all workers included in the representative cases are treated as being self-employed. Still, artists are defined as persons who practise their art on a self-employed basis and offer their services for pay as creators or performers.

[35]          The parties adduced as evidence the decision made by Quebec's Ministère du revenu under the Act respecting the Quebec Pension Plan (R.S.Q., c. R-9), a decision in which it was held that certain employees were self-employed workers, and others salaried employees. I have taken note of that decision, and I reiterate the position I expressed at the hearing concerning its relevance (it being a decision the reasons for which I do not know), particularly since it is not binding on me.

[36]          Exhibits I-5 and I-6 are organization charts, one for visual production and the other for television pre-production. With one exception, all the witnesses asked to comment stated that these organization charts did not reflect reality. In fact, Mr. Cadieux said that he saw no hierarchical structure in what they were doing. It was a team effort in which each participant had his own area of expertise. Mr. Cadieux compared the director to an orchestra conductor.

Analysis of the representative cases

Switcher

[37]          The position of switcher is found in appeals 2000-3683(EI) and 2000-4198(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, the truth of all of which was denied, except for the first one in appeal number 2000-3683(EI) and the first two in appeal number 2000-4198(EI):

                                [TRANSLATION]

(i)             The switchers were responsible for live editing the production under the direction, and following the shooting script, of the director.

(ii)            The switchers had to follow a schedule set by the producer and to complete time sheets.

(iii)           The switchers' work was supervised and planned by the director.

(iv)           The appellant provided the work premises and all the equipment required for the switchers' work.

(v)            The switchers were paid by the hour at previously set rates.

[38]          The workers included in this representative case and the number of days they worked during the two years at issue are as follows:

Appeal	Name	Number of days	Year
3683	Mario Bourassa	2 days	1998
3683	Mathieu Brien	9 days	1998
3683	Claude Blanchard	1 day	1998
3683	Jean-Pierre Vachon	44 days	1998
4198	Claude Rouleau	1 day	1998-1999
4198	Luc Boisvert	4 days	1998-1999
4198	Mario Bourassa	5 days	1998-1999
4198	Mathieu Brien	4 days	1998-1999
4198	Jean-Pierre Vachon	10 days	1998-1999

[39]          Switchers' work consists of doing live editing of the production. Working with the director or the assistant director, they switch camera images under their direction but, according to Mario Bourassa, would not blindly follow the director's orders. Mr. Bourassa stated that he has a sort of partnership with the camera operator, which often saves him from [TRANSLATION] "missing the mark", as he put it. Although being a switcher requires some training, switchers are taught mainly by experience. As well, when they must do their work on new consoles, they are responsible for their own training. Some switchers pay for their training themselves. Switchers are hired by the production manager at a predetermined hourly rate, although they may negotiate a higher rate. They are not required to provide the console on which they work. Because people contact them in order to ascertain their availability, they use answering machines and/or pagers. Since the production on which they work is a team effort, they sometimes work when they are ill. They complete their time sheets and are obliged to follow the shooting schedules. The workers concerned here signed hiring contracts in the form provided in the collective agreement with the APVQ.

Prop person

[40]          The position of prop person is found in appeals 2000-3683(EI), 2000-4917(EI) and 2000-4918(EI). In reaching his decision regarding this
representative case, the Minister relied on the following assumptions of fact, of which the appellant companies admitted only the first to be true:

                                [TRANSLATION]

(i)             After reading the screenplays, the prop person was responsible for purchasing, renting or producing the props required for each filming session.

(ii)            The prop person was obliged to follow a schedule set by the production manager.

(iii)           The prop person's work was supervised and planned by the unit manager; the prop person was obliged to complete time sheets.

(iv)           The appellant provided the premises and all the equipment required for the prop person's work.

(v)            The prop person was paid by the hour at rates previously set with the production manager.

[41]          The workers included in this representative case and the number of days they worked during the years at issue are as follows:

Case	Name	Number of days	Year
3683	Sylvie McLaughlin	31 days	1998
3683	Hélène Moisan	57 days	1998
4918	Anne St-Denis	1 day	1998-1999
4918	Colombe Raby	3 days	1998-1999
4917	Hélène Moisan	21 days	1998-1999
4918	Richard Morin	as agreed	1998-1999

[42]          Ms. Moisan and Ms. St-Denis testified at the hearing. Their work consists of producing the props required within the parameters created by each script. Some of their work is done off-set and sometimes they become on-set prop persons. Ms. Moisan stated that she works at home in her workshop and that no one supervises her or monitors her hours or requires reports from her. This statement was confirmed by Mr. Cadieux. Ms. Moisan took training at the theatre school in Ste-Thérèse but received no training from any production company. She owns her own production tools and materials such as saws, modelling medium, clay, fabric, and wood. She is paid for her off-set work on submission of invoices that she prepares herself.

[43]          When Ms. Moisan works on-set, conditions are different in that she submits time sheets completed by the co-ordinator. During the production of "Papi Bonheur", she spent equal amounts of time working on-set and off-set. For her work on-set, she is obliged to follow the filming schedule. She ensures that the props are in the right place according to the script. No one directs her in her work, but occasionally she discusses her ideas with the director in the context of the creation of the program. Ms. Moisan testified that she has some degree of freedom of action.

[44]          As for Ms. St-Denis, she testified that she worked off-set, at home. She had an expense account, which she submitted with her invoices. She set her own work schedule, except when she worked on-set since she then followed the same schedule as the other workers.

Camera operator

[45]          The position of camera operator is found in each of the four appeals. In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, all of which the appellant companies admitted to be true, except for the last two:

                                [TRANSLATION]

(i)             The camera operators were required to know how to operate the various models of cameras available in studios in Montréal.

(ii)            Taking into account the script and the director's shooting script, the camera operators were responsible for suggesting shots to the director during the filming sessions.

(iii)           The appellant decided where the camera operators worked, provided the work tools (cameras), and set the hours of work.

(iv)           The camera operators were paid by the hour on the basis of hours actually worked and recorded on time sheets.

[46]          The workers included in this representative case and the number of days they worked are as follows:

Appeal	Name	Number of days	Year
3683	Luc Vanier	5 days	1998
3683	Daniel Doré	3 days	1998
3683	Richard Desmarais	2 days	1998
3683	André Dufour	2 days	1998
3683	François Blanchette	1 day	1998
3683	Eddy Proulx	1 day	1998
3683	Pierre Vanier	28 days	1998
3683	Johanne Dion	5 days	1998
3683	Horia Cornescu	52 days	1998
3683	Martin Pilon	1 day	1998
4198	Jacques Chartrand	10 days	1998-1999
4917	Bruno Desgranges	5 days	1998-1999
4198	Luc Vanier	2 days	1998-1999
4198	Pierre Vanier	10 days	1998-1999
4917	Martin Pilon	5 days	1998-1999
4917	Richard Desmarais	4 days	1998-1999
4917	Horia Cornescu	24 days	1998-1999
4918	Eddy Proulx	1 day	1998-1999

[47]          Two camera operators testified at the hearing. They each indicated the basic training they had obtained in order to become camera operators. Usually, camera operators are contacted to ascertain their availability and to negotiate their hourly rates. They complete time sheets, some of which were adduced in evidence. They are paid in accordance with the conditions set out in the collective agreement. In particular, those conditions provide for a minimum number of hours per day and set a minimum hourly rate.

[48]          Camera operators arrive half an hour before filming starts or at the time indicated in the day's schedule. They discuss with the director his filming plan for the day, which is called in their jargon the "shooting script". Although camera operators may make some suggestions, the two camera operators who testified acknowledged that the director has the last word. These witnesses described their work as a team effort, adding that a camera operator attempts to reproduce a balanced picture on screen in accordance with established principles. Except for snap hooks to hold cables to their belts, the camera operators' equipment and tools are owned by the producer.

Hairstylist

[49]          The position of hairstylist is found only in appeal number 2000-4917(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant company denied the truth of all but the first:

                                [TRANSLATION]

(i)             Before and during filming, the hairstylist planned and carried out the necessary hairstyling for the actors in the production.

(ii)            The hairstylist's hours of work were from 9:00 a.m. to 6:00 p.m., Monday to Friday, which corresponded to the actors' schedules.

(iii)           The hairstylist always worked with Bruno Rhéaume, the makeup artist. She says that she completed APVQ time sheets which were submitted to the production manager, who determined her work schedule.

(iv)           The hairstylist's work was supervised and planned by the director.

(v)            The payer provided the work premises and all the equipment required. When the hairstylist had to provide hairstyling products, she was reimbursed for the cost of those products on submission of receipts.

(vi)           The hairstylist was paid $30 per hour. The rate of pay was negotiated between the hairstylist and the production manager.

[50]          The only worker named who occupied a position as a hairstylist was Manon Côté. She worked for 12 days during the production of "Bibi et Zoé" doing the hairstyling for the actress who played the role of Zoé. She received her instructions came from Mr. Rhéaume, the makeup artist, but said that she did not know who gave the makeup artist his instructions. Although, according to her, the work was a team effort, her closest contacts were with the actress, and she stated that she had a say in the actress's final hairstyling.

[51]          For the production of "Bibi et Zoé", the hairstylist worked at the filming studio. She did not remember her hours of work, but recalled that Mr. Rhéaume told her what time she was to arrive. She completed and initialled her time sheets. She signed a standard contract based on the model provided in the collective agreement with the APVQ. She brought her own work tools such as scissors, brushes and combs, and submitted for payment invoices for hair sprays and other products. She claimed as deductions from income expenses such as those for the products she uses, for parking, for the use of a cellular telephone, and for restaurant meals.

Costume designer

[52]          The position of costume designer is found only in appeal number 2000-4918(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant company either admitted or denied the truth:

[TRANSLATION]

(i)             The costume designer planned and provided the necessary costumes for each character in accordance with the script. (admitted)

(ii)            The costume designer purchased, altered, rented or made the costumes, and acted as a dresser. (admitted)

(iii)           The costume designer was obliged to follow a schedule set by the director and the assistant director. A daily schedule (usually 10 hours per day) was drawn up and followed. (denied)

(iv)           The worker's arrivals and departures were controlled by Nathalie Vallerand, the production manager. A time sheet other than the APVQ time sheet was completed and submitted to Ms. Vallerand. (denied)

(v)            The costume designer's work was supervised and planned by the director, who had the final word following various discussions. (denied)

(vi)           The appellant provided the work premises and all the equipment required. When the worker had to make purchases, the cost thereof was reimbursed by the appellant. (denied)

(vii)          The worker was paid a daily rate of $300; when she had to run errands, she was paid at an hourly rate of $25. The rate of pay was negotiated between the worker and the production manager. (denied)

(viii)         The worker provided her sewing machine, thread and needles; the other expenses of dyeing, cleaning, alterations, etc. were charged to the production. (admitted)

[53]          Louise Thibault was the only worker occupying a position as a costume designer in the production of "Bibi et Zoé". She was hired by Paul Cadieux at an hourly rate of $30. The agreement reached was not subject to the minimum conditions set out in the collective agreement with the APVQ because the occupation of costume designer is not recognized in the collective agreement. As a result, Ms. Thibault was obliged to prepare invoices. Before the production started, she read the various scripts and discussed with the director the look each character was to have. Based on that, a budget was drawn up and Ms. Thibault purchased the costumes. She decided which days she would shop; the only schedule she had to follow was the filming schedule, as her presence was required during filming. In terms of work tools, she needed to have a sewing machine, scissors and thread. She added expenses for certain items, such as dye, to her invoices for reimbursement. She stated that she deducted from her income workspace expenses and kilometrage. In the end, she stated, although the director had his vision of things, that vision was not always precise and, if it had been, the director would in effect have been taking away all the costume designer's creativity.

Director of photography

[54]          The position of director of photography is found in appeals 2000-3683(EI) and 2000-4198(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant companies either admitted or denied the truth, as indicated:

Appeal number 2000-3683(EI):

                                [TRANSLATION]

(i)             The directors of photography determined the time required for pre-lighting and for lighting adjustment during filming. They decided on the lighting, the ambience and the texture of the picture. (admitted)

(ii)            The directors of photography were obliged to follow a schedule set by the production manager and to complete time sheets. (denied)

(iii)           Although the directors of photography could have someone replace them if necessary, the production manager had the final word in choosing replacements. (denied)

(iv)           The work of the directors of photography was supervised and planned by the director. (denied)

(v)            The appellant provided the work premises and the equipment required for the work of the directors of photography. (denied)

(vi)           The directors of photography were paid by the hour at a rate previously negotiated with the production manager. (denied as written)

Appeal number 2000-4198(EI):

                                [TRANSLATION]

(i)             The directors of photography determined the time required for pre-lighting and for lighting adjustment during filming. They decided on the lighting, the ambience and the texture of the picture. (admitted)

(ii)            The directors of photography were obliged to follow a schedule set by the production manager and to complete time sheets. (denied)

(iii)           The work of the directors of photography was supervised and planned by the production manager and the director. (denied)

(iv)           The appellant provided the work premises and the equipment required for the work of the directors of photography; they provided only an exposure meter. (denied)

(v)            The directors of photography were paid by the day at a rate previously negotiated with the production manager. (admitted)

[55]          The workers included in this representative case and the number of days they worked are as follows:

Appeal	Name	Number of days	Year
3683	Claude Benoit	39 days	1998
3683	Luc Simard	5 days	1998
3683	Denis Hébert	8 days	1998
4198	Claude Benoit	5 days	1998-1999
4198	Sébastien Tremblay	5 days	1998-1999

[56]          Claude Benoit was the only director of photography to testify at the hearing. He works during the pre-production stage and during filming. In these particular cases, he was replacing Richard St-Pierre. After receiving the information required, he drew up a plan that he discussed with the director. He is responsible for creating lighting in accordance with established standards and techniques and for determining the texture of the picture. He also manages team members responsible for lighting. He provides his own tools such an exposure meter, a colorimeter, a computer, and hand tools. During the pre-production stage, he worked at a flat rate on the basis of 18 hours. He is an APVQ member and accepts the standards set out in the collective agreement. When he works on-set, he issues invoices in accordance with the APVQ standards. He acknowledged that, when he is unable to be at work on a given day, he ensures that he is replaced.

Decorator

[57]          The position of set designer is found only in appeal number 2000-4918(EI). Under an agreement between the parties, Mr. Gagnon was not considered to be an employee of the appellant company in this instance. The Court therefore orders that he not be so considered.

Electrician

[58]          The position of electrician is found in each of the four appeals. In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant companies either admitted or denied the truth:

                                [TRANSLATION]

(i)             Before and sometimes during filming, the electricians set up and adjusted the lights under the direction of the director of photography. (admitted)

(ii)            The electricians were obliged to follow a schedule set by the production manager and to complete time sheets. (denied)

(iii)           Although the electricians could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied)

(iv)           The electricians' work was supervised and planned by the head electrician. (denied)

(v)            The appellant provided the work premises and the equipment required for the electricians' work; the electricians provided their small work tools. (denied)

(vi)           The electricians were paid by the hour at a rate previously negotiated with the production manager. (denied)

[59]          The workers included in this representative case are as follows for each appeal:

Appeal	Name	Number of days	Year
3683	Luc Simard	5 days	1998
3683	Denis Hébert	28 days	1998
3683	Marc Bonneville	1 day	1998
3683	François Tanguay	6 days	1998
3683	Normand Forget	9 days	1998
3683	Daniel St-Jean	5 days	1998
3683	Guy Laliberté	1 day	1998
4198	Michel Maher	2 days	1998-1999
4198	Martin Lavallée	3 days	1998-1999
4198	Stéphane Janson	2 days	1998-1999
4198	Hugo Roy	1 day	1998-1999
4198	Richard Ally	1 day	1998-1999
4198	Rémi Giroux	1 day	1998-1999
4917	Stéphane Roy	4 days	1998-1999
4917	Thierry Leblanc	3 days	1998-1999
4917	Éric Clément	1 day	1998-1999
4918	Jonathan Barro	1 day	1998-1999

[60]          Martin Lavallée and Daniel St-Jean testified at the hearing. Their job is to set up and take down the lights used during filming. They follow a plan and work under the instructions of the head electrician. In these cases, the electricians' hours could vary and they were told when to show up. They own the small tools they bring with them, such as drills, circuit testers, black tape, and cutting pliers. They fill out time sheets, and they have an APVQ contract. Mr. Lavallée was not present during the filming. As for Mr. St-Jean, he has on occasion worked as head electrician. During filming in the studio, electricians work at a lighting console that allows them to regulate the intensity of each light. The console belongs to the production studio. Electricians are usually given their instructions by the director of photography.

Grip and grip/set constructor

[61]          This is a position found in three of the appeals, namely: 2000-3683(EI), 2000-4198(EI) and 2000-4917(EI). In reaching his decision regarding this
representative case, the Minister relied on the following assumptions of fact, of which the appellant companies either admitted or denied the truth:

                                [TRANSLATION]

(i)             The grips were responsible for setting up, taking down, repairing, and finishing the sets, depending on studio availability. (admitted)

(ii)            The grips were obliged to follow a schedule set by the director and to complete time sheets. (denied)

(iii)           Although the grips could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied as written)

(iv)           The grips' work was supervised and planned by the director. (denied)

(v)            The appellant company provided the work premises and the equipment required for the grips' work; the grips were required to provide small work tools. (denied as written)

(vi)           The grips were paid by the hour at a rate previously negotiated with the production manager. (denied as written)

Appeals 2000-4198(EI) and 2000-4917(EI)

[TRANSLATION]

(v)            When the grips were called upon to construct sets, they provided all the materials and submitted to the appellant invoices for reimbursement of the cost of their purchases. (admitted)

[62]          The workers included in this representative case and the number of days they worked are as follows for each appeal:

Appeal	Name	Number of days	Year
3683	Michel Audy	59 days	1998
3683	Sylvain Lampron	1 day	1998
3683	Gabriel Pérusse	47 days	1998
3683	Pierre Gadoua	7 days	1998
4198	Michel Audy	22 days	1998-1999
4198	Marcel Prince	5 days	1998-1999
4198	Stephen Bayard	1 day	1998-1999
4917	Sylvain Lampron	2 days	1998-1999
4917	Gabriel Pérusse	24 days	1998-1999
4917	Pierre Gauthier	5 days	1998-1999
4917	René Robitaille	2 days	1998-1999
4917	Michel Villeneuve	1 day	1998-1999

[63]          The parties agreed that Marcellin Fortin would be included in this group. Mr. Pérusse and Mr. Lampron testified as on-set grips. Mr. Pérusse also worked building sets off-set, as did Mr. Audy. As agreed by the parties, Mr. Pérusse's testimony is taken as representative of the work done by both these grips.

[64]          On-set grips' work consists mainly of setting up and taking down sets, placing furniture, and preparing the entire set for filming. Grips follow the instructions given by the head grip, who sets the grips' hours of work and monitors their presence. According to Mr. Lampron, it was Mr. Audy who signed his contract as the producer's representative, and a time sheet was kept. Mr. Lampron stated that he owned tools such as a cordless electric drill, a hammer, and an Exacto knife because, he said, good grips bring their own tools. Mr. Lampron acknowledged that he worked for other producers and did not claim expenses on his income tax returns for the years at issue.

[65]          While Mr. Pérusse's testimony concerning the work of grips on-set was essentially the same, he added being called upon to handle any special effects. He signed the time sheets that were completed by the production co-ordinator. He was required to follow the filming schedule and to provide his own tools. He worked as much on-set as off-set. He described a typical day on-set as follows: one arrives in the morning and checks the filming schedule and the times set for the filming. The schedule comes from the production co-ordinator and is given to all the grips. During filming, the grips are called upon to move certain things. The director and the unit manager may give them suggestions. Mr. Pérusse has also occasionally worked as head grip. According to the documentation adduced in evidence, not all the grips signed the standard contract provided in the collective agreement with the APVQ: some of them submitted invoices for their services.

[66]          The work of the grips/set constructors is to construct sets before filming; they therefore work off-set. Mr. Pérusse worked with other grips, including Mr. Audy. He had a plan of the set and worked with that. He did not complete any time sheets, and no one told him what time to arrive at work. He recorded his hours and every week submitted to the producer (the appellant company) an invoice including taxes. He owned his own work tools such as an electric saw, a saw bench, and a hammer, because no tools were provided by the appellant companies. Mr. Pérusse completed his testimony by stating that if he was unable to be at work he notified Mr. Audy, but only out of respect and conscientiousness. He did nearly all of his off-set work as a self-employed worker.

On-line editor (picture editor)

[67]          This is a position found only in appeal number 2000-4918(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant company either admitted or denied the truth:

                                [TRANSLATION]

(i)             The picture editors were responsible for ensuring that the picture corresponded to the shots planned by the director in the shooting script. (admitted)

(ii)            The picture editors' hours of work were from 7:30 or 8:00 a.m. to 5:30 or 6:00 p.m., Monday to Friday. This schedule was set so as to meet the requirements of the collective agreement with the APVQ. (denied)

(iii)           The picture editors were obliged to carry out their work themselves. (denied)

(iv)           The appellant provided the premises and all the equipment required, according to the picture editors' availability. (admitted)

(v)            These workers planned their work without direct supervision by the payer; occasionally the director had to give his approval and make artistic decisions. (admitted)

(vi)           The payer set the date on which the work was to be completed. (admitted)

[68]          The workers included in this representative case are: Jean-François Lord, Robert Lefebvre, Patrick Dumas, Michel Valiquette and Charles Bergeron. At the beginning of the hearing the appellant company concerned informed the Court that the case was being discontinued with regard to Mr. Lefebvre. Although Mr. Lefebvre testified at the hearing, I found nothing in his testimony that could help in deciding the issues, particularly concerning the on-line editors.

[69]          Witness Michel Valiquette received technical training at the Jonquière CEGEP; he stated that he had to update his skills continually. He uses magazines and the Internet as resources. His work is done in an editing room with the director, and consists of giving the finished product the look the director wants. Mr. Valiquette worked mainly in the evening, depending on studio availability, but no one imposed on him a work schedule or a minimum number of hours per week. He did, however, have deadlines to meet. He is not an APVQ member, and negotiated his hourly rate based on the requirements of the work and on the duties to be performed. He acknowledged that during the years at issue he worked mainly for the appellant companies, but stated that he was free as well to work elsewhere. He concluded by stating that he himself recorded his hours worked in his diary. The equipment he used was worth between $100,000 and $250,000 and did not belong to him. His work is done during the post-production stage.

Sound mixer

[70]          The position of sound mixer is found only in appeal number 2000-4918(EI). In reaching his decision regarding this representative
case, the Minister relied on the following assumptions of fact, of which the appellant company either admitted or denied the truth:

                                [TRANSLATION]

(i)             The sound mixer mixed the sound within the parameters established by the original sound and the music provided by the composer. (admitted)

(ii)            The sound was mixed at the Covitec studio located at 3401 St-Antoine. (admitted)

(iii)           The sound mixer worked when called, depending on studio availability; the mixer's work and hours of work were planned. (denied)

(iv)           The appellant provided the work premises and all the equipment required through the Covitec studio. (admitted)

(v)            The sound mixer was paid by the hour at a rate previously negotiated with the production manager. (admitted)

[71]          The only worker in this representative case is Marc Daneau. He worked on the production of the "Bibi et Zoé" show during the periods at issue. His work included doing the audio mixing, calibrating the voices, and producing sound effects and noises. He stated that he had no specific work schedule and that he worked mainly in the evening at times that suited him. Although he had deadlines to meet, no one monitored his arrivals and departures. He invoiced the appellant company for his time at an hourly rate of $16 that he had agreed on with the appellant company. The director, while not a supervisor, did have to approve the finished product. Mr. Daneau takes vacations when he wishes. He also provides training in his field. He works using an on-line monitor. The equipment belongs to the producer (the appellant company) since it is worth over $200,000. During the years at issue, Mr. Daneau worked mainly for the appellant company, but he acknowledged that he could have worked elsewhere. His work is done during the post-production stage.

Makeup artist

[72]          The position of makeup artist is found in appeals 2000-3683(EI), 2000-4917(EI) and 2000-4918(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, the truth of which was either admitted or denied:

                                [TRANSLATION]

(a)            The makeup artists planned and carried out the necessary makeup work on the actors in the production (admitted); they were required to be present before and during filming. (denied)

(b)            The makeup artists were obliged to follow a schedule set by the production manager on the basis of the scenes to be filmed and the actors' availability. (denied)

(c)            The makeup artists worked in a studio in Ville LaSalle. (admitted)

(d)            The makeup artists could not have someone replace them. (denied)

(e)            The makeup artists' arrivals and departures were monitored; they had to complete APVQ time sheets and submit them to the production manager. (denied)

(f)             The appellant provided the work premises and all the equipment required for the makeup artists' work, except for makeup products. (denied)

(g)            The makeup artists were paid by the hour at a rate of $25 previously set between them and the production manager. (denied)

[73]          The workers included in this representative case are:

Appeal	Name	Number of days	Year
3683	Bruno Rhéaume	36 days	1998
3683	Julie Migneault	13 days	1998
4917	Julie Migneault	11 days	1998-1999
4918	Bruno Rhéaume	13 days	1998-1999

[74]          The only witness in this category was Bruno Rhéaume. Usually he is hired by the production manager and negotiates his hourly rate. He subsequently attends a production meeting at which the characters, their traits, similarities and costumes, and the lighting are discussed. Filming hours are variable, a fact that affects Mr. Rhéaume's hours of work. His work consists of making up the actors according to production requirements and the scenes to be filmed. He is an APVQ member, and signed his hiring contract in accordance with the collective agreement. He also invoiced the appellant company for preparation time. He signed his time sheets and benefited from the application of the minimum standards set out in the collective agreement. He explained that he obtains, from actors who want his services for personal purposes, contracts that are not subject to the collective agreement. He acknowledged that no one told him how to apply makeup, but added that it can happen that the results not meet expectations and that he will then be obliged to alter his approach. He did not recall any particular situation in which his makeup was unsatisfactory. He provides items such as his makeup kit, makeup products and brushes.

Video recorder operator

[75]          The position of video recorder operator is found only in appeal number 2000-3683(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant company either admitted or denied the truth:

                                [TRANSLATION]

(i)             The video recorder operators were responsible for operating one or more recording or playback machines according to production requirements. (admitted)

(ii)            The video recorder operators were obliged to follow a schedule set by the production manager and to complete time sheets. (denied)

(iii)           Although the video recorder operators could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied as written)

(iv)           The video recorder operators' work was supervised and planned by the production manager. (denied)

(v)            The appellant provided the work premises and the equipment required for the video recorder operators' work. (denied)

(vi)           The video recorder operators were paid by the hour at a rate previously negotiated with the production manager. (admitted)

[76]          The workers included in this representative case and the number of days they worked are as follows:

Name	Number of days	Year
Martin Charron	1 day	1998
Julie Hudon	14 days	1998

[77]          Julie Hudon has an arts and technology diploma from the Jonquière CEGEP. In 1998, she worked as a video recorder operator for the appellant company for approximately 10 days spread out over several weeks, recording the program and operating the playback machine. The director told her what to do. She was called three or four days ahead of time and informed of the time she was to arrive. Her hours of work were set by the person who had hired her; that person completed Ms. Hudon's time sheets, which Ms. Hudon initialled. Examples of Ms. Hudon's pay slips were adduced in evidence as Exhibit I-12. Although Ms. Hudon was not an APVQ member, standard hiring contracts like those provided in the collective agreement with the APVQ were adduced in evidence.

Boom operator

[78]          The position of boom operator is found in appeals 2000-3683(EI), 2000-4198(EI) and 2000-4917(EI). In reaching his decision regarding this
representative case, the Minister relied on the following assumptions of fact, the truth of which was either admitted or denied:

                                [TRANSLATION]

(i)             The boom operators were responsible for following the action with the boom in order to ensure sound pickup under the direction of the sound recordist. (admitted)

(ii)            The boom operators worked in studios in Ville LaSalle rented by the appellant. (admitted)

(iii)           The boom operators were obliged to follow a work schedule and to complete time sheets. (denied)

(iv)           Although the boom operators could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied as written)

(v)            The boom operators' work was supervised and planned by the sound recordist. (denied as written)

(vi)           The appellant provided the premises and all the equipment required for the boom operators' work. (denied)

(vii )         The boom operators were paid by the hour at a previously set rate. (denied as written)

[79]          The workers included in this representative case and the number of days they worked are as follows for the various appeals:

Appeal	Name	Number of days	Year
3683	René Lamontagne	24 days	1998
3683	Claude Meunier	11 days	1998
3683	Michel Béland	1 day	1998
3683	Michel Nicolas	1 day	1998
3683	Serge Martineau	2 days	1998
4198	René Lamontagne	1 day	1998-1999
4198	Serge Kasparian (Berge)	3 days	1998-1999
4917	Claude Meunier	18 days	1998-1999

[80]          The boom operator's work consists of picking up the actors' words using a boom. On arrival on the set in the morning, the boom operator receives the scripts, and the shoot is rehearsed. The boom operator must make sure that the boom does not cast shadows while at the same time placing the boom correctly in relation to the actors, depending on the lighting. The production manager tells the boom operator what time the filming begins. The equipment used by the boom operator does not belong to him. Although the boom operator deals directly with the sound recordist, apparently the sound recordist does not tell him where to place the boom. Under cross-examination, witness René Lamontagne acknowledged that the sound recordist might ask him to position himself higher, or to raise or remove the boom. He works using an intercom system linking him with the director, the sound recordist and the unit manager. The unit manager, being responsible for on-set operations, asks the boom operator to move into place. This witness stated that he signed a time sheet and that his hourly rate was set by agreement. He did similar work elsewhere, and could have himself replaced by a person of his choice or by a person chosen by the production manager. Boom operators are APVQ members and benefit from application of the minimum standards set out in the collective agreement.

Sound recordist

[81]          The position of sound recordist is found in appeals 2000-3683(EI), 2000-4198(EI) and 2000-4917(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant companies admitted or denied the truth, or of which they said they had no knowledge:

                                [TRANSLATION]

(i)             The sound recordists were responsible for preparing the sound sampling required for the filming and for editing the sound effects to be played. (no knowledge)

(ii)            Although the sound recordists could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied as written)

(iii)           The sound operators' work was supervised and planned by the director. (denied)

(iv)           The appellant provided the work premises and all the equipment required for the sound recordists' work. (denied as written)

(v)            The sound recordists were paid by the hour at a previously set rate. (denied as written)

Appeal number 2000-4198(EI)

[TRANSLATION]

(ii)            The sound recordist directed the boom operators in picking up the actors' words in order to record them from the console. (denied as written)

(iii)           The sound recordist's work was supervised and planned by the associate producer. (denied)

[82]          The workers included in this representative case and the number of days they worked are as follows for each of the appeals in question:

Appeal	Name	Number of days	Year
3683	Francis Ledoux	36 days	1998
3683	Benoit Leduc	1 day	1998
3683	Marc Provencher	16 days	1998
4198	Francis Ledoux	18 days	1998-1999
4917	Marc Provencher	6 days	1998-1999

[83]          The sound recordist's work consists of recording the sound of the actors' voices. He receives his instructions chiefly from the director, but works mainly in co-operation with the boom operators. The sound recordist may occasionally give instructions to the boom operators, but boom operators are professionals. Witness Francis Ledoux stated that he was an APVQ member and subject to the conditions set out in the collective agreement. According to Mr. Ledoux, the words "mutual understanding" written in under the heading "replacement conditions" in the hiring contract mean that he will report for work unless he is ill, and that he will find a replacement if necessary. He explained that some producers required sound recordists to find their own replacements, while other producers looked after finding replacements themselves. Replacements are paid by the producer. The hourly rate is negotiated with the production co-ordinator or the associate producer. Mr. Ledoux further testified that his time sheets were filled out by Nathalie Vallerand and that he then signed them. He added that he was sometimes paid for preparation time. He does not own any of the tools required for the performance of his duties. Experience has taught him that he needs to arrive relatively early in order to prepare for the day's filming. He deducts expenses such as those for a pager and a cellular telephone.

Unit manager

[84]          The position of unit manager is found in appeals 2000-3683(EI), 2000-4198(EI) and 2000-4917(EI). In reaching his decision regarding this representative case, the Minister relied on the following assumptions of fact, of which the appellant companies either admitted or denied the truth:

                                [TRANSLATION]

(i)             The unit mangers read and analysed the scripts in the light of the director's shooting script; during filming, they ensured that all on-set equipment was in place and working properly. (admitted)

(ii)            The unit mangers were obliged to follow a work schedule and to complete time sheets. (denied)

(iii)           Although the unit managers could have someone replace them if necessary, the production manager had the final word in choosing the replacements. (denied as written)

(iv)           The unit managers' work was supervised and planned by the director. (denied)

(v)            The appellant provided the premises and all the equipment required for the unit managers' work. (denied)

(vi)           The unit mangers were paid by the hour at a previously set rate. (denied as written)

Appeal number 2000-4198(EI)

[TRANSLATION]

(iii)           The unit managers' work was supervised and planned by the production manager. (denied)

[85]          The workers included in this representative case and the number of days they worked are as follows for the various appeals concerned:

Appeal	Name	Number of days	Year
3683	Kim McCraw	41 days	1998
3683	Alain Lévesque	8 days	1998
3683	Lyne Jacob	3 days	1998
3683	Jenny Tessier	7 days	1998
4198	Éric Tessier	13 days	1998-1999
4917	Sylvie Parent (Plante)	1 day	1998-1999
4917	Gaétan Gervais	5 days	1998-1999
4917	Michel De Gagné	6 days	1998-1999

[86]          The unit manager is responsible for directing the technical team so that the filming of the program takes place in accordance with the schedule that has been set. A copy of the schedule is given to the persons concerned; the work requires some degree of preparation. There are rehearsals with the actors. The director may make a few minor changes, and then all is ready for filming. The unit manager communicates with the director and the other on-set workers using an intercom system and headsets. Each person's work is determined in advance, and it is the unit manager's job to ensure that the plan is followed. The work is a team effort aimed at producing a television program of the highest quality within a tight deadline. According to Kim McCraw, the unit manager is not the technicians' and actors' superior but, on-set, directs and supervises so that everyone is working together. Ms. McCraw had difficulty accepting the hierarchical aspect of the organization chart (Exhibit I-5). She stated that she was in a way the one in charge, but added that the real boss was the producer (in this instance, the appellant concerned). According to Ms. McCraw, the work is done collaboratively. The unit manager is, as it were, an orchestra conductor who sees to it that everyone does their job at the right time, without necessarily telling them how to do it. Ms. McCraw signed her time sheets and sometimes completed them herself. She was hired in accordance with the collective agreement with the APVQ, at an hourly rate that she negotiated and that is considered standard for the work she does. She owns no work tools, and she learned her trade on the job.

Miscellaneous

[87]          Under the agreements reached between the parties in these appeals, only Anthony Ellis is left in this category. According to the written arguments, there is also the case of Annie Tapp, but the parties have given the Court no indication concerning her. In fact, Jean Gagnon testified that Ms. Tapp had worked for him constructing sets. Since the parties have agreed that Mr. Gagnon is not be considered an employee of the appellant company concerned and since I have so ordered, I also so order concerning Ms. Tapp, that is, I declare that she was not an employee of the appellant company concerned.

[88]          In reaching his decision concerning the case of Mr. Ellis, the Minister relied on the following assumptions of fact, of which the appellant company concerned either admitted or denied the truth:

[TRANSLATION]

(i)             Mr. Ellis was hired to construct and move sets and to build the rooms and offices required for the production. (admitted)

(ii)            Mr. Ellis was obliged to follow a schedule set by the grip (Michel Audy). (denied as written)

(iii)           The appellant set the number of hours Mr. Ellis was to work through the grip; Mr. Ellis's arrivals and departures were monitored by means of the time sheet he was obliged to complete. (denied)

(iv)           Mr. Ellis's work was supervised and planned by the grip. (denied)

(v)            The appellant provided the work premises and all the equipment required; Mr. Ellis had to provide his tools (jigsaw, Skil saw, router, and screwdrivers). (denied as written)

(vi)           The worker was paid $18 per hour; his rate of pay was negotiated with the payer or its officers. (admitted)

[89]          Mr. Ellis testified that he worked for a production in 1998 but was unsure which production it was. He spoke at times of one day of work and at other times of perhaps 10 days. He referred to "Bibi et Geneviève" as the production in question, but that production was before "Bibi et Zoé". The invoice for Mr. Ellis's services, which was adduced in evidence (Exhibit I-1(B), Tab 11), is made out to "Bibi et Geneviève" and is for 72 hours of work. Mr. Ellis stated, however, that he might have worked on that production for only one hour. Mr. Ellis is not an APVQ member. He testified nonetheless that he thought he was an APVQ member in 1998, but later corrected himself. He recalled having worked for three hours one day with Mr. Audy. He stated that he had worked for other people, including Mr. Cadieux, on various renovation projects. He added that he did not construct any sets in 1998.

[90]          Mr. Ellis's testimony was far from being clear and precise and was therefore not very reliable. That said, I deduce therefrom that in 1998 he did indeed work for one of the appellant companies on the production of the "Bibi et Zoé" shows as an on-set grip during the filming. This work, he said, was spread out over two weeks, that is, 10 days, as shown by the invoice adduced in evidence. Mr. Ellis will be treated as an on-set grip in the same way as the other workers included in that representative case.

Analysis

[91]          The case law shows us that there is no universal, conclusive test and that we must consider the nature of the total relationship between the parties to the contract of employment. I have already noted that the collective agreement between the employers and the workers is a factor to be considered. Although agreements of this type are most often found in the context of a contract of service, in this case, the agreement was reached not under the Labour Code but under the Act respecting the professional status and conditions of engagement of performing, recording and film artists (see clause 1.01 of the agreement). I must also take into consideration articles 2085 to 2100 of the Civil Code of Québec, which deal with the basic principles governing employer-employee relationships and the concept of the contract for services. Also to be taken into consideration are the tests set out in the case law to which I have made reference above.

[92]          Although the great majority of the workers who testified are APVQ members, those whose positions are included in the prop person and on-line editor representative cases are not. Some but not all of the grips are APVQ members, and the video recorder operator who testified stated that she was not an APVQ member but used the APVQ form to document her hours and ensure that she was paid. All the workers are involved in producing television programs or similar productions, and their talent is much sought after by producers of these programs, such as the appellant companies.

[93]          The collective agreement that applies to these workers provides for minimum working conditions and for dispute resolution. It also sets out various commitments, in particular regarding the minimum number of hours for which workers are to be paid. Unlike a normal collective agreement, it allows the workers to which it applies to negotiate their hourly rates individually. The APVQ, one of the signatories to the collective agreement, is a duly certified association whose mandate is to represent and to negotiate for the self-employed artists who are its members.

Control

[94]          Control is an important factor in determining whether there is a contract of service or a contract for services in a given case. In Gallant v. M.N.R., [1986] F.C.J. No. 330, the Federal Court of Appeal points out that the distinguishing feature of a contract of service is not the control actually exercised by the employer over its employee, but the power the employer has to control the way the employee performs his duties.

[95]          These appeals involve producers of television programs who, to achieve their objective, must bring together a group of participants who each have their own knowledge, know-how, talent and creativity. These producers therefore call upon various APVQ members and workers whose positions are included in the defined representative cases and whose services are required in order to produce these programs. Although the script is certainly created in advance by the producers and writers, the finished product will be the result of the talent, know-how and creativity contributed by each person at each stage of the production.

[96]          The workers could each negotiate their hourly rates. The number of hours worked was not monitored because, under the collective agreement, a minimum number of hours per day was guaranteed. The workers had only to show up in the morning at the location where the filming was to take place to be guaranteed 10 hours' pay. The contracts signed included a "mutual understanding" clause allowing the workers to have someone replace them if they were not available on a given day of filming. As well, some workers arrived early in order to prepare for the filming.

[97]          Unit manager Kim McCraw described the production of a television program as a team effort aimed at producing a show of the highest quality within a tight deadline. Although she considers herself to be a bit like an orchestra conductor, seeing to it that everyone does their job at the right time, without necessarily telling them how to do it, she does not believe that there is a hierarchy of authority. Claude Blanchard, a director, considers all participants equal. While acknowledging that he has the final word, he says that all the workers are reliable professionals and that his job is to pull things together.

[98]          Mario Bourassa, a switcher, does not blindly follow the director's orders in carrying out his work. Rather, he feels that he has a sort of partnership with the camera operator and sees the overall production as a team effort. As for the camera operators, they testified that they discussed the filming plan for the day with the director. The two witnesses testifying with respect to the switchers' representative case acknowledged that the director had the final word but described their work as a team effort through which they attempted to produce a balanced picture on screen in accordance with established principles.

[99]          With respect to the hairstylist position, the situation is similar to the representative cases dealt with above. Manon Côté stated that her instructions came from Bruno Rhéaume, the makeup artist. While recognizing that the overall production was a team effort, she stated that her closest contacts were with the actress whose hair she styled, and that she had a say in the final hairstyling for the actress.

[100]        Costume designer Louise Thibault was quite categorical in describing her part in the production. She spoke of her role in creating the look each character was to have. She acknowledged that the director had his vision of things, but emphasized that if he had imposed that vision on her, he would in effect have been taking away her creativity. The director of photography's role is to draw up a plan for producing lighting in accordance with established standards and techniques, and to discuss the plan with the director. Director of photography Claude Benoit admitted that he had replaced someone and could also have had himself replaced on days when he was unable to be present.

[101]        The electricians must follow the plan and the instructions of the head electrician in carrying out their work. When working as head electrician, they receive their instructions from the director of photography. As for the grips, their testimony as a whole allows me to conclude that they were called upon to build the sets in accordance with the plans that had been drawn up, but that no one monitored their hours of work (except on-set) or told them how to do their work. The on-line editor was free to work when he wished but had deadlines to meet. His hourly rate was negotiated on the basis of the requirements of the work, and he was free to work elsewhere. These same characteristics are shared by the sound mixer position.

[102]        Sound recordist Francis Ledoux described the boom operators as professionals and stated that he worked in co-operation with them. He is obliged to follow the filming schedule but, if necessary, can have himself replaced by a person of his choice or someone chosen by the producer. Boom operator René Lamontagne testified along the same lines.

[103]        The prop persons work off-set and on-set. On-set, they follow the filming schedule but no one directs them in their work. Off-set, they work at home according to their own schedule.

[104]        All these features of each person's involvement in the production of the programs in question support the conclusion that a production of this type is the result of the ideas, talent, creativity, and know-how brought by all to the performance of their respective duties, which they carry out under the control of the producer in terms of how their work is to be done. Everything takes place in an atmosphere of collaboration among professionals. Thus, the situation of the workers in these appeals is more like that of self-employed workers.

Ownership of the tools

[105]        Ownership of the tools is a factor that may be helpful in deciding the issue. Here, not all the workers needed tools in order to perform their duties. The cases I consider as possibly being relevant are those of the grips, who had to have their own tools to build sets, the electricians, the director of photography, the hairstylist, the makeup artists, and the prop persons, who were also required to provide their own tools. The camera operators used the studios' equipment and provided only their own snap hooks. Other workers such as on-line editors, sound mixers, video recorder operators, boom operators and sound recordists used the equipment that was made available to them by the producers and that was part of a production studio. This very expensive equipment is made available to the workers by the producers. Clearly, except for these large items, ownership of which is better suited to a production studio, the workers provided their own tools. The weight to be given to ownership of the tools varies somewhat depending on the representative case concerned, since some trades require workers to provide their own tools. I shall therefore consider this factor in an overall fashion in deciding the issue in these appeals.

Profit and loss

[106]        This factor, which has to do with the workers' chances of making a profit and the risk they run of suffering a loss, has some degree of importance if we consider it overall, over an entire year. The number of contracts each worker could obtain, the purchase and maintenance of tools, and the hourly rate negotiated with each producer are all elements that can bring about profits or losses for a worker. However, if we consider this factor more narrowly, there is no real chance of profit or risk of loss because, by setting a minimum hourly rate agreed to by the workers, the collective agreement guaranteed the workers a fixed compensation. This aspect of the test therefore tends to work against the appellant companies.

Integration

[107]        Notwithstanding the existence in these appeals of a collective agreement between the employers and the workers, that collective agreement allows freelance workers the freedom to negotiate on an individual basis. The hiring contract was signed on the basis of a "mutual understanding" with respect to replacement conditions. Workers who were members of the APVQ were therefore entitled to have themselves replaced if necessary and even to choose their own replacements. This allowed workers to be hired by other production companies and thus gave them a freedom of action that made them independent of the schedules of the producers (the appellant companies). Most of the workers testified that they themselves were responsible for obtaining the training they needed in order to remain up-to-date.

[108]        The majority of the workers concerned wear devices through which they can be contacted, since they are always looking for contracts with other producers. Although clearly there may be differences between one representative case and another, overall, considering the relationships established and the conditions agreed to in the contracts, the workers in these appeals were not integrated into the appellant companies' business. They did not provide their services to the appellants alone. This test therefore favours the appellants.

[109]        As for the workers who were not APVQ members, I apply to them the same conclusions as those I have reached concerning those who were APVQ members, since most of them signed the same standard form contract provided in the collective agreement. Some workers submitted invoices directly to the appellant companies, which is in fact more in keeping with the existence of a contract for services.

Conclusion

[110]        After analysing the whole of the evidence, the circumstances surrounding the contracts, the contract conditions, the obligations of the parties to the contracts, their respective rights under the collective agreement, the question of the status of self-employed worker, and the tests set out in the case law that enable us to analyse the nature of the total relationship between the parties to the contracts, I conclude that the workers in these appeals are self-employed workers and that the contracts between them and the appellant companies were contracts for services, or at least were more like contracts for services than contracts of service.

[111]        Accordingly, the Minister's decisions are vacated and the appeals are allowed.

Signed at Ottawa, Canada, this 6th day of November 2002.

"François Angers"

J.T.C.C.COURT FILE NOS.:                                                 2000-3683(EI); 2000-4198(EI);

                                                                                                2000-4917(EI); 2000-4918(EI)

STYLES OF CAUSES:                                          LES PRODUCTIONS PETIT BONHOMME INC.

                                                                                                LES PRODUCTIONS BIBI ET ZOÉ INC.

                                                                                                and The Minister of National Revenue

PLACE OF HEARING:                                         Montréal, Quebec

DATES OF HEARING:                                         November 19, 20, 21, 22 and 23, 2001

REASONS FOR JUDGMENT BY:      The Honourable Judge François Angers

DATE OF JUDGMENT:                                       November 6, 2002

APPEARANCES:

For the Appellants:                                               Roch Guertin

For the Respondent:                             Stéphane Arcelin

                For the Intervener:                                                The Intervener himself

COUNSEL OF RECORD:

For the Appellants:

                                Name:                      Roch Guertin

Firm:                                        Montréal, Quebec

For the Respondent:                             Morris Rosenberg

                                                                                                Deputy Attorney General of Canada

                                                                                Ottawa, Canada

2000-3683(EI)

BETWEEN:

LES PRODUCTIONS PETIT BONHOMME INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeals heard on common evidence with the appeals of

Les Productions Bibi et Zoé Inc.

(2000-4198(EI), 2000-4917(EI) and 2000-4918(EI))

on November 19, 20, 21, 22 and 23, 2001, at Montréal, Quebec, by

the Honourable Judge François Angers

Appearances

Counsel for the Appellant:                                  Roch Guertin

Counsel for the Respondent:                                              Stéphane Arcelin

JUDGMENT

                The appeals are allowed and the Minister's decision is vacated in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 6th day of November 2002.

"François Angers"

J.T.C.C.

2000-4917(EI)

BETWEEN:

LES PRODUCTIONS BIBI ET ZOÉ INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeals heard on common evidence with the appeals of

Les Productions Petit Bonhomme Inc.(2000-3683(EI)) and

Les Productions Bibi et Zoé Inc. (2000-4198(EI)) and (2000-4918(EI))

on November 19, 20, 21, 22 and 23, 2001, at Montréal, Quebec, by

the Honourable Judge François Angers

Appearances

Counsel for the Appellant:                                  Roch Guertin

Counsel for the Respondent:                                              Stéphane Arcelin

JUDGMENT

                The appeals are allowed and the Minister's decision is vacated in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 6th day of November 2002.

"François Angers"

J.T.C.C.

2000-4918(EI)

BETWEEN:

LES PRODUCTIONS BIBI ET ZOÉ INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

CHRISTIAN ODELL,

Intervener.

Appeals heard on common evidence with the appeals of

Les Productions Petit Bonhomme Inc.(2000-3683(EI)) and

Les Productions Bibi et Zoé Inc. 2000-4198(EI)) and (2000-4917(EI))

on November 19, 20, 21, 22 and 23, 2001, at Montréal, Quebec, by

the Honourable Judge François Angers

Appearances

Counsel for the Appellant:                                  Roch Guertin

Counsel for the Respondent:                                              Stéphane Arcelin

For the Intervener:                                                                                The Intervener himself

JUDGMENT

                The appeals are allowed and the Minister's decision is vacated in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 6th day of November 2002.

"François Angers"

J.T.C.C.

2000-4198(EI)

BETWEEN:

LES PRODUCTIONS BIBI ET ZOÉ INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeals heard on common evidence with the appeals of

Les Productions Petit Bonhomme Inc.(2000-3683(EI)) and

Les Productions Bibi et Zoé Inc. (2000-4917(EI) and 2000-4918(EI))

on November 19, 20, 21, 22 and 23, 2001, at Montréal, Quebec, by

the Honourable Judge François Angers

Appearances

Counsel for the Appellant:                                  Roch Guertin

Counsel for the Respondent:                                              Stéphane Arcelin

JUDGMENT

                The appeals are allowed and the Minister's decision is vacated in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 6th day of November 2002.

"François Angers"

J.T.C.C.