[OFFICIAL ENGLISH TRANSLATION]
Date: 20020725
Dockets: 2001-2476(EI); 2001-2477(EI)
2001-2478(EI); 2001-2480(EI)
2001-2481(EI); 2001-2482(EI)
2001-2484(EI); 2001-2486(EI)
2001-2487(EI) and 2001-2488(EI)
BETWEEN:
JOSÉE PAYETTE,
MANON CROTEAU,
JEAN-PIERRE VILLAGI,
PIERRE-PAUL BOUCHER,
GEORGES LABRECQUE,
ANDRÉ MEUNIER,
CLAIRE CHAMPOUX,
CLÉMENT FORTIN,
MICHEL CHARBONNEAU, and
COMMISSION DES SERVICES JURIDIQUES,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
P. R. Dussault, J.T.C.C.
[1] These appeals were heard together.
At issue in all of them is whether the appellants, members of the
review committee of Quebec's Commission des services
juridiques, held insurable employment within the meaning of the
Employment Insurance Act ("the Act") and
the Employment Insurance Regulations ("the
Regulations") during the 1999 taxation year as the
respondent, the Minister of National Revenue ("the
Minister"), has claimed. As well, the respondent made an
assessment, notice of which is dated November 24, 2000,
making the appellant, the Commission des services juridiques,
liable for unpaid employee and employer Employment Insurance
contributions in the amount of $4,555.57 and interest in the
amount of $397.74, with regard to the nine appellants, the
members of the review committee of the Commission des services
juridiques in 1999.
[2] The parties have agreed to proceed
using the appeal of Manon Croteau (2001-2477(EI)) as
a standard file.
[3] The facts on which the appellants
relied in making their appeals are set out in paragraphs 1
to 25 of the Notice of Appeal. These paragraphs read as
follows:
[TRANSLATION]
1. The
Commission des services juridiques is a body established by
Quebec's Legal Aid Act (R.S.Q., c. A-14).
2.
Section 22(k) of that Act provides that the
Commission shall "form a review committee for the purposes
of sections 74 and 75" of that Act.
3.
Section 74 of that Act provides that the review committee
shall be made up of three persons, at least one of whom shall be
an advocate; in practice, the members of the review committee are
all advocates.
4.
Sections 74 and 75 of that Act set out the right to a
review; sections 76 and 78 of that Act and sections 88,
90 and 92 of Quebec's Regulation respecting the
application of the Legal Aid Act (R.S.Q.,
c. A-14, r-1) set out the other regulations
governing reviews; section 79 of the Act provides that the
review committee's decisions are final and without
appeal.
5. In
90 per cent of cases, the review committee hears
applications for review by means of conference calls.
6. The
Commission des services juridiques identifies persons suitable
for appointment to the review committee and invites them to apply
as candidates for appointment.
7. To apply
for appointments, candidates must have been an advocate for at
least 10 years.
8. By
resolution at its annual general meeting, the Commission des
services juridiques appoints the members of the review committee
for a one-year, renewable term of office; any appointments made
during the year are valid for the remaining part of the year.
9. By
resolution, the Commission des services juridiques appointed the
following persons as the members of the review committee in 1999:
Josée Payette, Manon Croteau,
Pierre-Paul Boucher, Jean-Pierre Villagi,
Georges Labrecque, Claire Champoux,
André Meunier, Clément Fortin and
Michel Charbonneau.
10. The advocates thus
appointed are not employees of the Commission des services
juridiques.
11. The members of the
review committee are paid by means of honorariums and are not
required to provide their professional services exclusively to
the Commission des services juridiques.
12. The members of the
review committee are paid on a fee basis, that is, only when they
sit to hear applications for review or deliberate and write their
decisions.
13. The administrative
committee sets the review committee members' hourly rate by
resolution; at present this rate is $50 per hour.
14. The review committee
members carry out most of their professional activities elsewhere
than at the premises of the Commission des services
juridiques.
15. Each year, the review
committee makes 1,000 decisions in 41 sittings.
16. The review committee
members have no set working hours and are not required to be
present otherwise.
17. The review committee
has its own premises, secretariat, archives, waiting room,
conference call system, and equipment.
18. The review committee
members receive no fringe benefits except for contributions to
the Régie des rentes du Québec and reimbursement of
their parking expenses on presentation of vouchers.
19. The Commission des
services juridiques exercises no control over the review
committee members' work.
20. On November 21,
2000, the Canada Customs and Revenue Agency decided in the case
of Manon Croteau that during the 1999 taxation year,
Ms. Croteau held insurable employment within the meaning of
the Employment Insurance Act and the Employment
Insurance Regulations, as is shown in the copy of that
decision adduced in support of this Notice of Appeal as
Exhibit A-1.
21. The Canada Customs and
Revenue Agency cited two specific grounds for that decision:
first, the fact that the appellant held an office in the
Commission des services juridiques; second, that the Commission
is a body that is an agent of Her Majesty in right of a province,
as is shown in Exhibit A-1.
22. A decision to the same
effect was made in the case of Josée Payette, as will
be more fully established at the hearing.
23. Notices of Assessment
were then issued to all the members of the review committee in
1999, as is shown in the copies of those Notices adduced jointly
in support of this Notice of Appeal as
Exhibit A-2.
24. The members of the
review committee as well as the Commission des services
juridiques appealed from those decisions on
December 15, 2000, and January 25, 2001, as is
shown in the copies of the letters adduced in support of this
Notice of Appeal as Exhibit A-3.
25. On April 19,
2001, the Chief of Appeals upheld the decisions by the Canada
Customs and Revenue Agency, as is shown in the copies of those
decisions adduced in support of this Notice of Appeal as
Exhibit A-4.
[4] In reaching his decision, the
respondent, the Minister, relied on the assumptions of fact set
out in subparagraphs (a) to (l) of paragraph 10 of the
Reply to the Notice of Appeal ("the Reply"). These
subparagraphs read as follows:
[TRANSLATION]
(a) The payor was
incorporated in 1972 under the legislation of the Province of
Quebec.
(b) The payor is
responsible for providing legal aid; its mandate includes
studying and solving the legal problems of the
underprivileged.
(c) Under its
incorporating legislation, the payor formed a review committee in
order to review decisions by the director general refusing or
withdrawing legal aid to individuals.
(d) The payor's
board of directors appointed advocates to the review
committee.
(e) In 1999, the
appellant was a member of the review committee.
(f) The
appellant's duties were to make and write decisions on
individuals' eligibility for legal aid.
(g) The appellant
and the other members of the review committee used an office and
equipment paid for by the payor.
(h) The remuneration
of the appellant and the other members of the review committee
was set by the payor at $50 per hour.
(i) The payor
reimbursed the appellant's travel expenses.
(j) The payor
paid to the Régie des Rentes du Québec the amount
deducted from the appellant's remuneration.
(k) Her Majesty in
right of the Province of Quebec issued an order waiving exclusion
of the employees of bodies that are mandataries of the government
and that were established after January 1, 1972.
(l) The payor
considered that its employees were insurable for Employment
Insurance purposes.
[5] It is also important to note that
in paragraph 3 of the Reply, the respondent admits, in
particular, the truth of paragraph 10 of the Notice of
Appeal, which states that the advocates who are members of the
review committee are not employees of the Commission des services
juridiques.
[6] As well, the relevant part of an
agreement entered into between the parties reads as follows:
[TRANSLATION]
AGREEMENT
WHEREAS
in paragraph 3 of the Reply to the Notice of Appeal, the
respondent has admitted that the members of the review committee
are not employees within the meaning of the Employment
Insurance Act;
WHEREAS
the opposing party has admitted the other essential facts in the
dispute set out throughout the Notice of Appeal;
WHEREAS
counsel in the dispute have agreed that they will present before
the Court only the arguments of law based, for the appellant, on
part B of her Notice of Appeal and, for the respondent, on
part B of his Reply to the Notice of Appeal:
the parties to the dispute therefore agree that they will call
no witnesses at the hearing of the appeal on June 27,
2002;
the parties also agree that they have chosen to present their
arguments in the case of Manon Croteau as a standard case;
the parties agree that the decision by the Tax Court of Canada
in this case shall apply to all the cases in the present
appeal;
...
[7] Part B of the Notice of
Appeal, entitled: "Grounds the appellants intend to
cite", reads as follows:
[TRANSLATION]
26. The Quebec government
has reached no agreement with the Canada Employment Insurance
Commission by which it would waive the exclusion set out in
section 5(2) of the Employment Insurance Act and
insure the members of the review committee.
26.1 All orders made to date by the
Quebec government subjecting its employees or the employees of
bodies that are its mandataries to the Employment Insurance
Act refer to employees.
26.2 The members of the review
committee are not employees of the Commission des services
juridiques.
26.3 In the absence of such orders,
the professional services rendered by the members of the review
committee cannot constitute insurable employment under the
Employment Insurance Act and the Employment Insurance
Regulations.
27. For employment to be
insurable within the meaning of
subparagraph 6(f)(iii) of the Employment Insurance
Regulations, it is not enough for an individual to hold an
office in a body that is an agent of Her Majesty in right of a
province; the individual must hold employment within the meaning
of the Employment Insurance Act, that is, the individual
must have employee status with the body.
27.1 Section 2 of the
Employment Insurance Act defines "employment" as
"the act of employing or the state of being
employed".
27.2 Even if, hypothetically, the
members of the review committee held an office in the Commission
des services juridiques, which is denied, one condition would
still not be met for this office to be insurable within the
meaning of Act: these persons would have to hold
employment with the Commission, that is, they would have to be
employees of the Commission, which they are not.
27.3 The legal relationship between
the Commission des services juridiques and the members of the
review committee is in the nature of a contract for services, not
a contract of service.
28. The members of the
review committee do not hold an office within the meaning of
section 2 of the Canada Pension Plan.
[8] Paragraphs 11 to 14 of part B
of the Reply, entitled "Statutory provisions on which the
respondent relies and grounds the respondent intends to
cite", read as follows:
[TRANSLATION]
11. The respondent, the
Minister of National Revenue, relies on
paragraph 5(2)(c), sections 82 and 85, and
subsection 93(3) of the Employment Insurance Act
(S.C. 1996, c. 24); on subsection 2(1) of the
Canada Pension Plan; and on
subparagraph 6(f)(iii) of the Employment Insurance
Regulations, as applicable to the taxation year at issue.
12. The respondent argues
that the appellant held insurable employment because she held an
office in a commission of Her Majesty in right of a province, in
accordance with subparagraph 6(f)(iii) of the
Regulations.
13. The respondent
therefore argues that Employment Insurance contributions were
payable.
14. The respondent argues
that it made the assessments at issue in accordance with
sections 82 and 85 of the Employment
Insurance Act.
[9] Thus it is only on these terms
that the parties have agreed to present the dispute before the
Court and to call no witnesses.
[10] In order to place the dispute more
clearly in context, the relevant provisions of the Act and
the Regulations should be reproduced: the definition of
"employment" set out in subsection 2(1) of the
Act; paragraphs 5(2)(c), 5(4)(d)
and 5(4)(g) and subsections 2(1) and 2(2) of the
Act; and subparagraphs 6(f)(ii) and
6(f)(iii) of the Regulations. The definition of
"office" set out in subsection 2(1) of the
Canada Pension Plan (R.S.C., c. C-8) is also
important.
[11] These provisions read as follows:
Employment Insurance Act
2.(1) In this Act,
...
"employment" means the act of employing or the state
of being employed;
...
5.(2) Insurable employment does not
include
...
(c)
employment in Canada by Her Majesty in right of a province;
...
(4) The Commission
may, with the approval of the Governor in Council, make
regulations for including in insurable employment
...
(d)
employment in Canada by Her Majesty in right of a province if the
government of the province waives exclusion and agrees to insure
all its employees engaged in that employment;
...
(g) the
tenure of an office as defined in subsection 2(1) of the
Canada Pension Plan.
Employment Insurance Regulations
2.
Employment Included in Insurable Employment
(1) Employment in
Canada by Her Majesty in right of a province that would, except
for paragraph 5(2)(c) of the Act, be insurable
employment is included in insurable employment if the government
of the province enters into an agreement with the Commission
whereby that government agrees to waive exclusion and to insure
all its employees engaged in such employment.
(2) For greater
certainty, employment in Canada by Her Majesty in right of a
province, for the purposes of subsection (1), includes only
employment in Canada of employees who are appointed and
remunerated under an Act governing that province's public
service, or who are employed in Canada by a corporation,
commission or other body that is an agent of Her Majesty in right
of the province.
6. Employment
in any of the following employments, unless it is excluded from
insurable employment by any provision of these Regulations, is
included in insurable employment:
...
(f)
employment of a person who holds an office, as defined in
subsection 2(1) of the Canada Pension Plan,
...
(ii) where the
person is appointed and remunerated under an Act governing the
public service of a province, the government of which has,
pursuant to subsection 2(1), agreed to insure all of its
employees,
(iii) where the person
holds the office in or under a corporation, commission or other
body that is an agent of Her Majesty in right of a province
referred to in subparagraph (ii); or
...
Canada Pension Plan
2.
Interpretation
(1) In this Act,
...
"office" means the position of an individual entitling
him to a fixed or ascertainable stipend or remuneration and
includes a judicial office, the office of a minister of the
Crown, the office of a lieutenant governor, the office of a
member of the Senate or House of Commons, a member of a
legislative assembly or a member of a legislative or executive
council and any other office the incumbent of which is elected by
popular vote or is elected or appointed in a representative
capacity, and also includes the position of a corporation
director, and "officer" means a person holding such an
office;
[12] According to the definition in
subsection 2(1) of the Act, the Commission referred
to in subsection 5(4) of the Act is the Canada
Employment Insurance Commission.
[13] From the outset, therefore, under
paragraph 5(2)(c) of the Act, any employment
in Canada by Her Majesty in right of a province is excluded from
insurable employment. Next, there are exceptions, the purpose of
which are to include employment thus excluded in insurable
employment, under certain conditions. The exceptions relevant to
the present case are set out in paragraphs 5(4)(d)
and 5(4)(g) of the Act.
[14] First, paragraph 5(4)(d)
does not automatically include employment in insurable employment
if the government of a province "waives exclusion and
agrees to insure all its employees engaged in that
employment", to quote the wording of this paragraph. In
fact, this paragraph simply allows the Canada Employment
Insurance Commission to "make regulations for including
in insurable employment" employment that would
otherwise, under paragraph 5(2)(c) of the Act,
be excluded as employment by Her Majesty in right of a
province-on condition, as paragraph 5(4)(d) provides,
that the government of the province waives exclusion and agrees
to insure all its employees engaged in that employment.
[15] Second, paragraph 5(4)(g)
also allows the Canada Employment Insurance Commission to make
regulations for including in insurable employment "the
tenure of an office as defined in subsection 2(1) of the
Canada Pension Plan". Thus it is necessary to refer to
the regulations made by this Commission to see how it decided to
include an office in insurable employment, to the extent that an
occupation can first be considered an office as defined in
subsection 2(1) of the Canada Pension Plan. In fact,
this definition is similar to the definition set out in
subsection 248(1) of the Income Tax Act, although the
list of inclusions differs slightly. The Income Tax Act
defines an "office" as "the position of an
individual entitling the individual to a fixed or ascertainable
stipend or remuneration..."; subsection 2(1) of the
Canada Pension Plan defines "office" as
"... the position of an individual entitling him to a
fixed or ascertainable stipend or remuneration...". The
English versions of both these Acts use the same wording:
"... a fixed or ascertainable stipend or
remuneration ...".
[16] On a number of occasions, the courts
have analysed the definition of "office" set out in the
Income Tax Act. Three decisions are of interest in this
regard: Guérin v. M.N.R., 52 DTC 118; MacKeen v.
M.N.R., 67 DTC 281; and Merchant v. The Queen, 84 DTC
6215.
[17] In Guérin, the appellant,
a judge of the Court of Sessions of the Peace, was a member in
1949 of a number of arbitration boards in labour disputes. The
appellant included in his income the remuneration received but
claimed expenses as if his services were rendered within a
business and not, as the Minister claimed, within an office or
employment. It should be noted that it was established that the
appellant was himself obliged to pay for a part-time secretary,
stationery, other office supplies, the use of a typewriter and
had to incur other expenses, particularly for transportation.
Although Chairman Monet of the Income Tax Appeal Board
quickly determined that the appellant was not an employee, the
issue as to whether the appellant held an office was raised.
[18] In his decision, Chairman Monet
first noted that the appellant was expressly authorized by the
Attorney General of Quebec to sit on these arbitration boards.
Since the appellant was then considered on leave without pay, he
did not sit on these arbitration boards as a judge. Although the
remuneration provided for was set at $12.50 per sitting of
an arbitration board, the number of sittings the appellant was
obliged to attend was not known in advance; as a result,
Chairman Monet decided that this remuneration was neither
fixed nor ascertainable from the outset. In this regard,
Chairman Monet wrote as follows, at page 121:
... According to the definition given above, a taxpayer should
not be considered as holding an office merely because he occupies
a position. The position must entitle him to a fixed or
ascertainable stipend or remuneration. Failing this, the position
is not an "office" within the meaning of The
Income Tax Act. Does the position held by the appellant
when acting as a member of an arbitration board entail a fixed or
ascertainable remuneration? I do not believe so. Although it
has been established that the appellant is entitled to a fee of
$12.50 for each sitting of the board on which he is acting, this
fact alone, in my opinion, is not sufficient. I do not believe
that because a fixed remuneration is attached to a sitting it is
possible to conclude that a fixed remuneration is also attached
to the position itself. To reach such a conclusion we would have
to say that a sitting in itself constituted the position which in
my opinion is an absurdity. The remuneration of the appellant is
determined by two different factors, firstly, a known factor, the
remuneration of $12.50 the appellant received for each sitting,
secondly, an unknown factor, the number of sittings required to
bring to a successful conclusion the work to be accomplished by
the arbitration board. As long as the second factor remains
unknown, and it will be so until the last sitting has been held,
it is impossible to establish the remuneration the appellant will
receive. Nothing, it seems to me, could be more
indeterminate.
By "position entitling one to a fixed or ascertainable
stipend or remuneration" parliament, in my opinion, meant a
position carrying such a remuneration that when accepting it a
person knows exactly how much he will receive for the services he
is called upon to render. I feel that this is the true
meaning that must be given to "office" as defined in
Section 127(1)(aa) quoted above, having regard to the
persons listed whose duties constitute an office. I also believe
that "office" as defined, implies continuity and
permanence; it can certainly not be said that there is continuity
or permanence in the duties of a member of an arbitration
board.
...
(Emphasis added.)
[19] In MacKeen (supra), at
issue was whether the appellant, appointed a member of a Royal
Commission of Inquiry, held an office or employment or rather,
had provided his services as part of a business, as he claimed.
Here again, the claiming of certain expenses was central to the
dispute since the rules that applied were not the same. The
appellant's remuneration was set by Order in Council
at $100 per day, plus $20 per day when the
appellant was absent from his usual place of residence on
Commission business. Provision was also made to reimburse the
appellant's travel expenses on presentation of vouchers.
Income Tax Appeal Board Member Boisvert decided that the
appellant was not an employee and, furthermore, did not hold an
office. On this last point, Board Member Boisvert wrote as
follows, at page 284:
...
G.S.A. Wheatcroft in The Law of Income Tax, Surtax and
Profits Tax, (1962), at page 1057, 1-107, says that:
"The word 'office' denotes a subsisting, permanent,
substantive position which has an existence independent of the
person who fills it, and which goes on and is filled in
succession by successive holders." Acting as a commissioner
on a special and limited commission, royal or other, limited as
to terms and duration, has none of the characteristics of an
office or an employment.
...
[20] Then, referring in particular to the
above-quoted passage from Guérin, Board member
Boisvert concluded that the appellant did not hold an office and
that his income came from a business instead.
[21] In Merchant (supra),
Reed J. of the Federal Court, Trial Division, criticized the
decisions in both Guérin (supra) and
MacKeen (supra). In Merchant, at issue was
whether the expenses incurred by a leadership candidate in a
political party were deductible. In this regard, with respect to
MacKeen (supra), Reed J. wrote the following
at page 6217:
...
This decision was reached for a number of reasons (e.g. the
position of commissioner was not a permanent one and the taxpayer
had agreed, at the time of his appointment, to the travel expense
amounts provided for by the government). Accordingly, I do
not place too much emphasis on that part of the judgment which
held the taxpayer's income not to be
ascertainable. Indeed, I think such income is
ascertainable. I take that word to mean that the amount to
be paid is capable of being made certain, or capable of being
determined but not that a definite sum be known by the office
holder at the commencement of holding office. The word has
to have some meaning beyond "fixed" or else it is
completely redundant.
...
[22] Concerning Guérin
(supra), Reed J. made the following comments at
pages 6217 and 6218:
I am not convinced that at the time of taking office the
taxpayer must know how much he will receive. It seems to me
a per diem rate, or a specified amount per sitting renders
the income sufficiently ascertainable to meet the definition in
section 248(1). However, there are other factors in the
Guérin case which make the income unascertainable
and in my view should have served as the focus of that
decision:
It has been established that the appellant must himself pay
for the services of a part-time secretary and that he must also
pay for the stationery he needs, for the use of a typewriter and
all other supplies ... It has been further established that
the appellant is often called upon to pay the transportation of
his secretary and other persons acting as advisers and that
often-times he has to pay for the meals of his assistants and
advisers.
These it seems to me are the crucial factors in making the
remuneration received, as a result of holding the position of
arbitrator, not ascertainable.
[23] Given that the evidence adduced was
insufficient, Reed J. decided that in the circumstances it
was impossible to conclude that the remuneration of the position,
as claimed by the appellant, was ascertainable.
[24] However, in commenting on the decision
in Guérin (supra), Reed J. appears to
assume that in that case the remuneration was not ascertainable
mainly because of the expenses the appellant was obliged to
incur. The Court does not agree with that position. The words
"stipend" and "remuneration" mean gross
income, not income net of expenses. This is clear from the
wording of subsection 5(1) of the Income Tax Act. As
well, the Court considers that the descriptor
"ascertainable" must refer to something that can be
ascertained a priori; otherwise it would have no meaning
since everything can be ascertained a posteriori. Thus if
the "stipend" or "remuneration" is not fixed,
it must still be ascertainable in advance with at least some
degree of accuracy by using some formula or by referring to
certain set factors. The Court considers that this is the meaning
of the decisions in Guérin and MacKeen
(supra).
[25] In the present case,
subsection 22(k) of Quebec's Legal Aid Act
provides that the Commission des services juridiques shall form a
review committee responsible for conducting the reviews provided
for in sections 74 and 75 of that legislation. As
well, section 74 of that legislation provides that an
application for review shall be decided by a review committee
made up of three members, at least one of whom shall be an
advocate. According to paragraph 8 of the Notice of Appeal,
the members of the review committee are all advocates, and the
Commission appoints them for a one-year, renewable term of
office. According to paragraph 12 of the Notice of Appeal,
the members are paid on a fee basis, that is, only when they sit
to hear applications for review or deliberate and write their
decisions. According to paragraph 13 of the Notice of
Appeal, their remuneration is set at $50 per hour. According
to paragraph 15 of the Notice of Appeal, each year the
review committee makes 1,000 decisions during 41 sittings. By
agreement, the respondent has admitted the truth of all these
facts.
[26] It is not very difficult for the Court
to find that the appellants, the members of the review committee,
hold an office. The review committee is a permanent entity of the
Commission des services juridiques. Being appointed as a member
for a one-year term of office and having other professional
occupations elsewhere in no way suggests that one cannot occupy a
position for a set term on a part-time basis. One can at the same
time practice law and be a director of one or more share
corporations. The Court does not see any incompatibility in that
situation. It cannot be said that a person does not occupy a
position because that person's main professional activity is
exercised elsewhere than with the Commission. That said, it is
not enough to occupy a position: the position must entitle the
person to a "fixed or ascertainable stipend or
remuneration", according to the definition set out in
subsection 2(1) of the Canada Pension Plan. In the
present case, it is clear that the position does not entitle a
person to a fixed remuneration or stipend. The Court also
considers it impossible to conclude that the remuneration is
ascertainable since in this regard the facts set out in the
Notice of Appeal, the truth of which the respondent has admitted,
are insufficient. It is not known how many times each member is
called upon to sit on the review committee or how many days or
hours are spent on this activity in a given year. The information
about the number of review committee sittings held and the number
of review applications heard each year does not provide a
reliable factor for individual members. The Court has no idea of
the "stipend" or the "remuneration" that
the members of the review committee were likely to receive for
rendering their services; nor has any such information been
adduced, except that the members are paid on a fee basis at a
rate of $50 per hour. The Court considers that merely
indicating the hourly rate set by the Commission des services
juridiques is insufficient to establish that the position itself
makes a member eligible for a "fixed or ascertainable
stipend or remuneration". The Court therefore considers that
the respondent, who simply admitted the truth of the facts set
out in the Notice of Appeal, has in no way discharged the burden
on him of establishing that the appellants, the members of the
review committee of the Commission des services juridiques, held
an office as defined in subsection 2(1) of the Canada
Pension Plan. Thus subparagraph 6(f)(iii) of the
Regulations cannot be applied to this case to include the
position occupied by the appellants in insurable employment.
[27] There is more. Even if the Court
assumed that the members of the review committee held an office
as defined in subsection 2(1) of the Canada Pension
Plan, the Court considers that
subparagraph 6(f)(iii) of the Regulations
cannot be applied to this case. Under
subparagraph 6(f)(iii) of the Regulations, the
office must be "in or under a corporation, commission or
other body that is an agent of Her Majesty in right of a
province". Subparagraph 6(f)(ii) of the
Regulations refers to "a province, the government
of which has, pursuant to subsection 2(1), agreed to insure
all of its employees". Under subsection 2(1) of the
Regulations, employment otherwise excluded under
paragraph 5(2)(c) of the Act shall be included
in insurable employment "if the government of the
province enters into an agreement with the Commission whereby
that government agrees to waive exclusion and to insure all its
employees engaged in such employment."
[28] From the outset, the Court cannot fail
to underscore that the wording of the Regulations is
hardly a model of clarity. Although subsection 2(1) of the
Act defines the word "employment" as
"the act of employing or the state of being
employed", paragraph 6(f) of the
Regulations begins with the words, "...
employment of a person who holds an office, as defined in
subsection 2(1) of the Canada Pension Plan ...".
Thus, although the holder of an office is not an employee, this
wording suggests that the holder of an office nevertheless holds
employment. It may be added here, as counsel for the respondent
has noted, that the word "employment" has been
interpreted to include more than work performed under a contract
of service or a master-servant relationship and may designate,
more generally, an occupation. On this point, reference may be
made to the Federal Court of Appeal decision in Sheridan v.
Canada (Minister of National Revenue-M.N.R.) (F.C.A.), [1985]
F.C.J. 230, in which that Court relied on two Supreme Court of
Canada decisions: The Queen v. Scheer Limited, [1974]
S.C.R. 1046; and Martin Service Station v. The Minister of
National Revenue, [1977] 2 S.C.R. 996. The word
"employment" used at the beginning of
paragraph 6(f) of the Regulations obviously
has a broader meaning. However, the ambiguity remains in
subparagraph 6(f)(ii) because an office is included
in insurable employment if the government of a province has,
pursuant to subsection 2(1) of the Regulations,
agreed to insure all of its employees. The ambiguity persists in
subparagraph 6(f)(iii), which refers to a province
referred to in subparagraph 6(f)(ii), that is, a
province of which the government has, pursuant to
subsection 2(1) of the Regulations, agreed to insure
all of its employees. One may certainly, and rightly, ask if the
expression "all of its employees" covers the
holders of an office referred to in an agreement required under
subsection 2(1) of the Regulations or if the
agreement must be specific on this aspect. In the present
appeals, however, this question need not be answered since, as
will be seen, there is no evidence that there is any agreement
between the Quebec government and the Canada Employment Insurance
Commission.
[29] At this point, another condition set
out in subparagraph 6(f)(iii) of the
Regulations deserves brief comment. Under
subparagraph 6(f)(iii) of the Regulations, the
office must be "in or under a corporation, commission or
other body that is an agent of Her Majesty in right of a
province". Section 19 of Quebec's Legal Aid
Act states that the Commission des services juridiques is a
legal person but does not state whether the Commission is a
mandatary (agent) of the state, as is stated for a great many
commissions and bodies, such as the Caisse de dépôt
et de placement du Québec (R.S.Q., c. C-2, ss. 3 and 4)
and the Commission des valeurs mobilières du Québec
(R.S.Q., c. V-1.1, s. 276.1), to give only those examples.
Despite that silence, in these proceedings the issue of whether
the Commission des services juridiques is a mandatary of the
Quebec State was not directly raised. The Court will therefore
assume that the Commission does have that status, which is also
probable in light of its duties and particularly the government
controls exercised over it[1] under Quebec's Legal Aid Act. Nevertheless,
the Court considers that subparagraph 6(f)(iii) does
not apply to this case since there is no evidence of any
agreement between the Quebec government and the Canada Employment
Insurance Commission whereby the Quebec government would have
agreed "to waive exclusion and to insure all its
employees engaged in such employment". Such an agreement
is an essential condition set out in
subparagraph 6(f)(iii) of the Regulations by
reference to subparagraph 6(f)(ii) and to
subsection 2(1) of the Regulations.
[30] Counsel for the appellants referred to
a number of Orders in Council or Quebec government orders by
which the Quebec government agreed to insure all the employees
who work for the public service and of certain bodies that are
mandataries of the Quebec government. These Orders in Council or
orders are: No. 491-72 (February 22, 1972);
No. 1009-73 (March 28, 1973);
No. 505-77 (February 17, 1977);
No. 3655-77 (November 2, 1977);
No. 893-81 (March 11, 1981);
No. 2247-82 (September 29, 1982);
No. 94-95 (January 25, 1995); and
No. 1299-96 (October 16, 1996). The purpose
of the last-mentioned order is specifically to cover the
employees of bodies that are mandataries of the government and
that were established after January 1, 1972.
[31] Counsel for the appellants first
emphasized that section 91.2A of the Constitution Act,
1867, gives the federal Parliament exclusive jurisdiction to
legislate in relation to employment insurance and that, as a
result, a province may not decide unilaterally to make its
employees subject to legislation in this regard. As well, since
the Regulations require that there be an agreement between
the government of a province and the Canada Employment Insurance
Commission, counsel for the appellants questioned whether Quebec
could legally subject employees simply by means of Orders in
Council. Counsel for the appellants also emphasized the fact that
the Orders in Council made by the Quebec government cover only
employees working for the public service or for bodies that are
mandataries of the government. According to counsel for the
appellants, since the members of the review committee are not
employees of the Commission des services juridiques, they are not
even covered by the Orders in Council, which cover only employees
and not holders of an office. Nor, according to counsel for the
appellants, is there any agreement that covers office
holders.
[32] At the conclusion of the hearing, the
Court specifically asked counsel for the parties to send the
Court their positions and comments on a certain number of points
raised during the hearing. The requirement for an agreement
between the government of a province and the Canada Employment
Insurance Commission was one of these points. Since this point
was raised in the Notice of Appeal, the Court considers it
essential to ascertain the clear positions of the parties on it
and on the other points raised during the hearing. In the
comments he sent to the Court, counsel for the respondent
deliberately refrained from making any comments on the
requirement for an agreement or on the existence of such an
agreement between the Quebec government and the Canada Employment
Insurance Commission. Aside from the fact that this attitude by
counsel representing the Deputy Attorney General of Canada is
surprising and completely unacceptable, the Court can only
conclude that the respondent has no position on this point or, if
he has one, he prefers simply to refrain from stating it because
he adduced no evidence concerning it.
[33] It is quite clear that an agreement
implies consent to something by two or more parties. An Order in
Council is a unilateral action that does not meet the minimum
requirement of an agreement between two governments set out in
subsection 2(1) of the Regulations. Failing evidence
of an agreement between the Quebec government and the Canada
Employment Insurance Commission that insured the appellants, the
members of the review committee formed by the Commission des
services juridiques, the Court considers that
subparagraph 6(f)(iii) of the Regulations
cannot be applied to this case.
[34] In light of the foregoing, the appeals
of the appellants Josée Payette, Manon Croteau,
Jean-Pierre Villagi,
Pierre-Paul Boucher, Georges Labrecque,
André Meunier, Claire Champoux,
Clément Fortin and Michel Charbonneau, the
members of the review committee of the Commission des services
juridiques, are therefore allowed and the Minister's decision
is varied, the appellants not having held insurable employment
within the meaning of the Employment Insurance Act during
the 1999 taxation year.
[35] Theappellants
Josée Payette, Manon Croteau,
Jean-Pierre Villagi, Pierre-Paul Boucher,
Georges Labrecque, André Meunier,
Claire Champoux, Clément Fortin and
Michel Charbonneau not having held insurable employment
within the meaning of the Employment Insurance Act during
the 1999 taxation year, the appeal of the Commission des services
juridiques is allowed and the assessment made by the Minister is
set aside.
Signed at Ottawa, Canada, this 25th day of July 2002.
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
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