Citation: 2009 TCC 460
Date: 20090915
Docket: 2008-3281(EI)
BETWEEN:
GILLES TALBOT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
The issue for
determination in the instant case is whether Gilles Talbot (the "Worker")
met the requirements of a contract of service, under paragraph 5(1)(a)
of the Employment Insurance Act (the "Act"), while employed
with Loblaws (the "Payor") from July 1, 2006, to November 18,
2007 (the "period in issue").
[2]
In making his decision,
the Minister of National Revenue (the "Minister") relied on the
following assumptions of fact
set out in paragraph 5 of the
Reply to the Notice of Appeal which were admitted by the Worker, with the exception
of the assumptions set out in paragraphs 5(d) and 5(h) about which he did not
know anything:
[TRANSLATION]
(a) the Appellant has already worked as a chef
and has more than 30 years' cooking experience;
(b) the Appellant answered an advertisement
for a job offer as a chef demonstrator on the Emploi Québec Web site;
(c) the offer of employment was being
advertised by Gestion Culinaire André P. Moreau Inc. (Gestion APM) who was
seeking a chef instructor to offer his or her services as a self-employed
worker for the Payor;
(d) André P. Moreau was the sole shareholder
of Gestion APM and a chef by profession;
(e) Gestion APM held a contract from Provigo/Loblaws
to act as an intermediary and recruit chef instructors or teach cooking classes
at Loblaws stores;
(f) the chef instructor, such as the Appellant,
had more stable work because he was guaranteed 24 hours of work per week whereas
the chef teaching classes worked flexible hours;
(g) André P. Moreau recruited 32 or 33 chefs
for the 37 Loblaws stores; he verified the skills and experience of the chef
prior to referring him to one of the stores;
(h) Gestion APM did not receive a bonus for
each of the chefs hired; it only received an amount for their recruitment and
replacement;
(i) after answering the offer of employment
being advertised, the Appellant was hired by Caroline Bulbulian, collaborator, Gestion
APM;
(j) the Appellant was hired verbally and
after having worked 2 or 3 days at the Loblaws store in St-Hyacinthe, he worked
throughout the period in issue at the Loblaws supermarket in Granby;
(k) the Appellant was not interviewed by the
director of the store where he worked;
(l) at the supermarket at which the Appellant
worked, he generally had to prepare two recipes per week for customers to taste;
(m) the Appellant received from Mr. Moreau week
the two recipes to be prepared during his workweek a week in advance;
(n) the Appellant purchased the products
required for the recipes directly from the supermarket and went through a cash register
that charged the food items to a specific account (disbursement code);
(o) the Payor only indicated to the Appellant
where it wanted him to set up the food-tasting station;
(p) the Appellant supplied his own knives and cutting
board whereas the Payor supplied the butane stove, a removable board and pans;
(q) although the Appellant was able to communicate
with Mr. Moreau if he wished to obtain more details about a recipe, he did not
receive any instructions from the store manager;
(r) the Appellant travelled from Farnham to Granby to work and he had to pay his car travel
expenses;
(s) the Appellant had to work a set schedule determined
by the Payor in all Loblaws stores; he worked from 3 p.m. to 8 p.m. on
Thursdays and Fridays and from 9 a.m. to 4 p.m. on Saturdays and Sundays for a total
of 24 hours per week;
(t) on Sundays, he would hand in a sheet to
the Payor on which he entered his name, his address, the disbursement code, the
transit number and the number of hours worked (24 hours);
(u) the Appellant submitted his "time
slip" to the store's cashier who paid him directly in cash (except for the
first week when he was paid by cheque;
(v) the Appellant received a fixed salary of $600 per
week from the Payor;
(w) unlike the store's employees, the Appellant
did not have to "punch" his hours; he only had to submit his "time
slip;"
(x) unlike the Payor's employees, the Appellant
did not receive any benefits from the Payor (medical or disability insurance, pension
plan or other fringe benefits);
(y) the Appellant could bring and hand out his
own business cards to the store's customers;
(z) in 2006 and 2007, the Appellant declared
business income in his returns.
[3]
The evidence also
revealed that
(i) the Worker did not have a contract
with Loblaws;
(ii) the Payor did not
provide any instructions on how to prepare the recipes. I note that the Worker acknowledged
that he could modify the recipe when a necessary ingredient was not available
at the Loblaws store where he worked;
(iii) the Worker could
refuse to work. He could also take leave without pay. In the case of his absence,
he notified Gestion APM who had to find a replacement for him. I therefore note
that the Worker testified that as a self-employed worker, he thought he could
ask for an advance on his pay;
(iv) Gestion APM contacted
the Worker to end his contract following a call from the director of the
Loblaws store where he worked.
Analysis and conclusion
[4]
To be eligible for
employment insurance, one must hold insurable employment within the meaning of
paragraph 5(1)(a) of the Act. It contains the terms "contract
of service," "employer" and "employed person" and sets
out that the latter must receive earnings from the employer
or some other person for the determination of worker status.
[5]
The Act does not define
what a contract of service is. Paragraph 5(1)(a) of the Act must
therefore be analyzed in the light of Quebec civil law when the applicable provincial
law is that of Quebec.
[6]
A contract of employment,
formerly referred to as "contract of service," is defined in article
2085 of the Civil Code of Québec. Three elements must be present for
there to be a contract of employment, namely: performance of work, remuneration
and control exercised by the employer. However, monitoring the result must not be confused with
controlling the worker.
[7]
The issue for
determination in this case is whether there was a relationship of subordination between the Payor and the
Worker. In other words, we
need to determine whether the Payor had the right to direct or control the
worker.
[8]
In the case at bar, the
only facts filed in evidence that might lead us to conclude that there was a relationship of subordination between the
Payor and the Worker involved
the following:
(i) work schedule;
(ii) the exact place
where the Worker had to execute recipes for the Loblaws store at which he
worked.
[9]
I do not believe this implies a relationship of subordination between the Payor and the Worker. In my opinion, the requirements related to a work schedule and
workplace are not a
distinguishing and exclusive characteristic of an employment contract. It is indeed rare for a person to give out
work and not to ensure that the work is performed in accordance with his or her
requirements and at the locations agreed upon. What we must see in this case in the facts is a control over the result of the work and not
control over its performance.
[10]
Although we have concluded
that there was no relationship
of subordination between the Worker and the Payor, we will nonetheless consider whether the Worker held
insurable employment within the meaning of paragraph 5(1)(a) of the
Act.
[11]
In that regard, the Act
permits the Canada Employment Insurance Commission, with the consent of the governor in
council, to extend
by regulations insurance coverage to employment that is usually uninsurable. It
is therefore necessary to refer to the regulations to find out which employment
is included in or excluded from insurable employment.
Paragraph 6(g) of the Employment Insurance Regulations reads
as follows:
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:
. . .
(g) employment
of a person who is placed in that employment by a placement or employment
agency to perform services for and under the direction and control of a client
of the agency, where that person is remunerated by the agency for the
performance of those services.
As it appears from this provision, the Worker would
have held insurable employment had he been under the direction and control of
the Payor and had he been remunerated by Gestion APM. In the case at bar, the
evidence revealed that the Worker was remunerated by the Payor and not by
Gestion APM. Furthermore, I note that I concluded that there was no relationship of subordination between the
Worker and the Payor. Accordingly,
the Worker cannot claim to have held insurable employment under 6(g) of
the Employment Insurance Regulations.
[12]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada,
this 15th day of September 2009.
"Paul Bédard"
Translation
certified true
on this 30th day
of October 2009.
Daniela Possamai,
Translator
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