Citation: 2009 TCC 142
Date: 20090521
Docket: 2008-2052(EI)
BETWEEN:
SIMON BEAUCAIRE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
ÉRIC LAVOIE,
Intervenor.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Archambault J.
[1]
Simon Beaucaire is
appealing from a decision by the Minister of National Revenue (Minister)
regarding the admissibility of his work as insurable employment for the
purposes of the Employment Insurance Act (Act). The Minister determined
that Mr. Beaucaire did not hold insurable employment with Éric Lavoie
(payor or Mr. Lavoie) from March 1, 2007, to September 30, 2007 (relevant
period). According to the Minister, Mr. Beaucaire was bound to Mr. Lavoie
through a contract for services, whereas Mr. Beaucaire claims it was a contract
of employment.
[2]
When rendering his
decision, the Minister relied on the following presumptions of fact:
[translation]
5. …
(a) as of 2002, the payor was the sole owner
of a company that created development plans for commercial stores mainly for the Aldo
shoe company; (admitted)
(b) the appellant was hired to prepare store
plans using the AutoCad computer software program; (admitted)
(c) in the beginning, the two parties agreed
that the appellant was an independent worker;
(denied)
(d) later, the appellant and the payor did not
agree on the appellant's status as independent employee or employee; (admitted)
(e) the appellant's duties were split into two
steps: the first was to visit the stores, take measurements, hand-draw a first
plan, verify the placement of sprinklers, the ventilation system, electrical
outlets, electricity panel and existing shelves; the second was to draw up the
store plans on the computer; (admitted)
(f) the first step was done mainly in
different cities in the US, and the second, at the appellant's home in Montreal; (admitted)
(g) the appellant was to give the payor the
plans prepared by computer, on the Wednesday of the week following the visits; (denied)
(h) the appellant and the payor had agreed
upon a rate of $275 per store plan; (admitted)
(i) the appellant billed the payor for his work; (denied)
(j) the payor paid the appellant by cheque
according to the invoice presented; (admitted)
(k) the payor organized the store visits,
reserved the plane tickets and hotels (admitted) after verifying the
appellant's availability; (denied)
(l) the payor was reimbursed for the plane
tickets and hotel costs by Aldo; (no
knowledge)
(m) the number of visits was generally two or
three stores per week; (admitted)
(n) the appellant had no instructions to
follow from the payor in carrying out his work; (denied)
(o) the appellant did not have a work schedule
to follow for the payor; (denied)
(p) for the work at home, the appellant worked
according to his availability; (denied)
(q) the appellant received no social benefits,
vacation or sick leave from the payor; (admitted)
(r) there was no relationship of subordination
between the payor and the appellant. (denied)
Factual background
[3]
Mr. Lavoie worked for
many years as a self-employed worker for Mr. Mathieu Quiviger, an architect who
created development plans for stores, mainly for Aldo. The work consisted of
going to shopping centres in Canada and the US where Aldo planned on opening a
store, and to prepare an architectural plan indicating the mechanical data,
particularly regarding the location of sprinklers, ventilation systems,
electrical outlets, etc. (mechanical data). So as not to disrupt operations at
the existing stores at Aldo's intended locations, he had to work quickly. It
was more efficient to have two people working to collect the relevant data.
Mr. Quiviger drew the architectural plan of the location and Mr. Lavoie
collected the mechanical data on a design sketch that he would later transfer
to the architectural plan.
[4]
This relationship
lasted around six years, until Mr. Quiviger told Mr. Lavoie that he wanted
to reduce the number of trips to the US the work for Aldo
involved. Notably, Aldo had begun implementing a strong network of shoe stores
in the US in 2006. Over a hundred contracts were
completed. Mr. Quiviger therefore offered Mr. Lavoie a portion of the
territories served by Aldo. He would keep the Canadian territory and Mr. Lavoie
would take care of the US territory.
[5]
To help with this work
in the US, Mr. Lavoie decided to hire a friend, with
whom it would be pleasant to travel. His plan was to proceed in the same way he
and Mr. Quiviger had worked, namely he would sub-contract part of his duties to
a third party. At the time of the negotiations between Mr. Lavoie and Mr.
Beaucaire, Mr. Beaucaire worked for Rogers Communications and earned
around $45,000. According to Mr. Lavoie, Mr. Beaucaire was not entirely
satisfied with his job. Mr. Beaucaire confirmed in his testimony that he
wanted to spend more time with his family.
[6]
During their
negotiations, Mr. Lavoie told Mr. Beaucaire he would be hired as a
self-employed worker, and this was accepted. He would be paid $275 per plan. If
there was more work to be done than usual, more compensation would be paid. Mr.
Beaucaire
admitted that he understood that, as a self-employed worker, he had no right to
vacation time or social benefits.
[7]
Mr. Beaucaire's work
was done in two steps. The first was done on site, in the future Aldo locations
in the US, where the relevant data was collected.
The second was done once he was back in Montreal, in his residence, where he could transcribe the relevant data onto
the basic plans created by Mr. Lavoie.
[8]
In general, Aldo gave
mandates to Mr. Lavoie following a verification of his availability. Aldo made
all the necessary provisions for Mr. Lavoie's visits to the US along with the help he had hired. The plane tickets
were reserved through Aldo's travel agency and the fees were billed directly to
Aldo. As for the other travel expenses such as hotels, meals and rental car,
fees were generally covered by Mr. Lavoie. Occasionally, Mr. Beaucaire
would pay certain costs, and Mr. Lavoie would reimburse him in full. Later,
Aldo would reimburse Mr. Lavoie for these expenses, as well as those covered by
Mr. Lavoie himself. If they travelled by car rather than by plane to get to a
city, for example, Boston, Mr. Beaucaire would receive a $50
allowance.
[9]
In general, at least
two stores were visited per week, in geographically close locations. For
example, Boston and New York or Los Angeles and San Francisco. A trip usually lasted two to three days.
The agreement between Mr. Lavoie and Aldo included delivery of the plans the
following week, generally on the Wednesday.
[10]
Mr. Lavoie's job was
the same as Mr. Quiviger's, taking the measurements required to prepare an
architectural plan of the site Aldo was to occupy. Mr. Beaucaire completed
the task Mr. Lavoie carried out, collecting the mechanical data. Mr. Beaucaire
would normally wait for Mr. Lavoie to draw the plans of the space to add the
mechanical data. According to Mr. Lavoie, they each did their data
collection work on site. When Mr.
Beaucaire had completed his job, he could leave the site of the future Aldo
store without waiting for Mr. Lavoie to complete his work.
[11]
To carry out his work,
Mr. Beaucaire used certain tools that Mr. Lavoie provided for him, in
particular a computer, which cost $850 and was equipped with the AutoCad
software program. Although Mr. Lavoie had two laptop computers to start the
data transcription work using AutoCad on site, in the US,
in fact, Mr. Beaucaire could not transcribe his data until Mr. Lavoie had
completed the basic plans. As a result, the computer he had been given was used
more for entertainment purposes than for work. Another tool was a $350 laser to
take measurements, and a digital camera worth $250. According to Mr. Lavoie,
Mr. Beaucaire was not required to use the laser for his work. He could just
have easily used a tape measure; but because he had two, he provided Mr.
Beaucaire with one. If I understand correctly, both workers, Mr. Lavoie and Mr.
Beaucaire, could have used the digital camera.
[12]
Once back at his
residence in Montreal, Mr. Beaucaire would transfer the mechanical
data onto the plans Mr. Lavoie generated using AutoCad. The software had been
installed on the computer that belonged to Mr. Beaucaire. In fact, he found it
easier to work on a desktop computer than a laptop. Moreover, Mr. Beaucaire had
some problems working AutoCad on the laptop. Mr. Lavoie had provided the
installation diskette for this software, which belonged to Aldo. Mr. Beaucaire
could carry out his work at his convenience. The only constraint was to deliver
the plans by Wednesday the following week, as required by Aldo. During his
testimony, Mr. Beaucaire admitted that the deadlines he had to meet were
due to requirements imposed by the client, Aldo. However, it is important to
note that there is no contractual relationship between Mr. Beaucaire and Aldo.
Moreover, Mr. Beaucaire never met Aldo's representatives.
[13]
Mr. Beaucaire had no
training as an architectural or engineering technician. He had a bachelor's
degree in environmental geography. However, as the Court itself could see, Mr.
Beaucaire was an intelligent person, "quick minded" as Mr. Lavoie put
it. Clearly, Mr. Lavoie had to give Mr. Beaucaire some basic training in the
beginning. According to Mr. Lavoie, he did this as a friend. Obviously, it was
in his best interest for Mr. Beaucaire to be competent at work. They spent two
unpaid afternoons visiting two Aldo stores in Quebec to simulate the work Mr.
Beaucaire would have to perform in the US.
Mr. Lavoie also gave basic training on AutoCad. He was available to answer any
questions Mr. Beaucaire might have regarding the completion of his work. Mr.
Beaucaire indicated that in the beginning, it might take three and a half to
four hours to finish his plans, whereas at the end, it might only take an hour
and a half.
[14]
Mr. Lavoie admitted
that he verified the work Mr. Beaucaire provided, particularly in the
beginning. He would verify, for example, whether he respected the established
practice when selecting colours on the plans generated by AutoCad, depending on
the type of data. However, he stated he could not verify the accuracy of Mr.
Beaucaire's mechanical data as shown on the plans because he did not have the
data required to do so. He therefore relied on the work Mr. Beaucaire had done.
[15]
According
to the analysis of the invoices from Mr. Beaucaire to Mr. Lavoie (Exhibit I‑1),
there were many periods of two or three weeks during which Mr. Beaucaire's
services were not required. During these weeks, Mr. Beaucaire did not earn
any pay.
[16]
During
his testimony, Mr. Beaucaire denied that he refused a contract that
Mr. Lavoie had offered him. During cross-examination, however, he did
admit that he refused a job to be done in Alberta. He
justified this refusal by stating that he had a personal commitment, made after
verification with Mr. Lavoie. On cross-examination, Mr. Lavoie indicated that
he had also offered Mr. Beaucaire a contract in New Jersey, which was
refused. Mr. Lavoie also offered Mr. Beaucaire the names of people to contact
for other contracts but Mr. Beaucaire also refused these.
Analysis
[17]
The
issue is whether Mr. Beaucaire held insurable employment for the purposes of
the Act. The relevant provision is paragraph 5(1)(a) of the Act, which
states:
5(1) Subject to
subsection (2), insurable employment is:
(a)
employment in
Canada by one or more employers, under any express or implied contract of
service or apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other person and whether
the earnings are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise;
[Emphasis added.]
[18]
This
provision defines insurable employment as employment under a contract of
service (or, to use a more modern term, a contract of employment). However, the
Act does not define this type of contract. The following is found at section
8.1 of the Interpretation Act, regarding such a situation:
Property and Civil
Rights
8.1 Both the common law and the civil law are equally
authoritative and recognized sources of the law of property and civil rights in
Canada and, unless otherwise provided by law, if in interpreting an
enactment it is necessary to refer to a province’s rules, principles or
concepts forming part of the law of property and civil rights, reference must
be made to the rules, principles and concepts in force in the province at
the time the enactment is being applied.
[Emphasis added.]
[19]
The
most relevant provisions for determining whether there is a contract of
employment in Quebec and for distinguishing it from a contract for services are
found at articles 2085, 2086, 2098 and 2099 of the Civil Code of Québec
(Civil Code or C.C.Q.):
Contract of employment
2085 A contract of employment is a
contract by which a person, the employee, undertakes for a limited period to do
work for remuneration, according to the instructions and under the direction
or control of another person, the employer.
2086
A contract of employment is for a fixed term or
an indeterminate term.
Contract of enterprise or
for services
2098 A contract of enterprise or for services is a contract by which a
person, the contractor or the provider of services, as the case may be,
undertakes to carry out physical or intellectual work for another person, the
client or to provide a service, for a price which the client binds himself to
pay.
2099 The contractor or the provider of
services is free to choose the means of performing the contract and no
relationship of subordination exists between the contractor or the provider of
services and the client in respect of such performance.
[Emphasis added.]
[20]
When
these Civil Code provisions are analyzed, it is clear that there are three
essential conditions for a contract of employment to exist: (i) performance of
work by the employee; (ii) remuneration for that work paid by the employer;
(iii) a relationship of subordination. The clear distinction between a contract
of employment and a contract for services is the relationship of subordination,
or the employer's power of direction or control over the worker.
[21]
In
scholarly literature, authors have considered the concept of a right of
"direction or control" and its flip side, the "relationship of
subordination". Robert P. Gagnon wrote the following:
[TRANSLATION]
(c) Subordination
90 - A
distinguishing factor - The most significant characteristic of an
employment contract is the employee's subordination to the person
for whom he or she works. This is the element that distinguishes a contract
of employment from other onerous contracts in which work is performed for
the benefit of another for a price, e.g., a contract of enterprise or for services
governed by articles 2098 et seq. C.C.Q. Thus, while article 2099 C.C.Q.
provides that the contractor or provider of services remains
"free to choose the means of performing the contract" and that
"no relationship of subordination exists between the contractor or the
provider of services and the client in respect of such performance," it is
a characteristic of an employment contract, subject to its terms, that the
employee personally perform the agreed upon work under the direction of the
employer and within the framework established by the employer.
. . .
92 - Concept -
Historically, the civil law initially developed a "strict" or
"classical" concept of legal subordination that was used for the
purpose of applying the principle that a master is civilly liable for damage
caused by his servant in the performance of his duties (article 1054 C.C.L.C.;
article 1463 C.C.Q.). This classical legal subordination was characterized
by the employer's direct control over the employee's performance of the work,
in terms of the work and the way it was performed. This concept was gradually
relaxed, giving rise to the concept of legal subordination in the broad
sense. The reason for this is that the diversification and specialization
of occupations and work methods often made it unrealistic for an employer to be
able to dictate or even directly supervise the performance of the work.
Consequently, subordination came to include the ability of the person
who became recognized as the employer to determine the work to be performed,
and to control and monitor the performance. Viewed from the reverse
perspective, an employee is a person who agrees to integrate into the
operational structure of a business so that the business can benefit from the
employee's work. In practice, one looks for a certain number of indicia
of the ability to control (and these indicia can vary depending on the
context): mandatory presence at a workplace; a somewhat regular assignment of
work; the imposition of rules of conduct or behaviour; an obligation to provide
activity reports; control over the quantity or quality of the services, etc.
The fact that a person works at home does not mean that he or she cannot be
integrated into a business in this way.
[Emphasis added.]
[22]
Note that the distinguishing
feature of a contract of employment is not the employer's actual exercise of
direction or control (the strict or classical concept) but the employer's right
to do so (broad concept). In Gallant v. M.N.R., [1986] F.C.J.
No. 330 (QL), Pratte J.A. of the Federal Court of Appeal stated:
[23]
Mention
should also be made of the commentary of Quebec's Minister of Justice on
article 2085 C.C.Q. accompanying the draft Civil Code, which I quoted at
page 2:26 of an article I wrote (my article) entitled "Contract of
Employment: Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should Replace
It."
[TRANSLATION]
This
article restates the rule enacted by article 1665(a) C.C.L.C. The definition
contained in the new article establishes more clearly the difference between a
contract of employment and a contract for services or contract of enterprise. The
sometimes fine line between the two kinds of contracts has caused difficulties
both in the scholarly literature and in the case law.
The
definition indicates the essentially temporary nature of a contract of
employment, thus enshrining the first paragraph of article 1667 C.C.L.C.,
and highlights the chief attribute of such a contract: the relationship of
subordination characterized by the employer's power of control, other than
economic control, over the employee with respect to both the purpose and the
means employed. It does not matter whether such control is in fact exercised
by the person holding the power; it also is unimportant whether the work is
material or intellectual in nature
[Emphasis added.]
[24]
In Québec, unlike in
the common law, the main issue is whether there is a relationship of
subordination, or a power of control or direction. To determine whether a
contract is a contract of employment or a contract for services, a court has no
choice but to determine whether there is a relationship of subordination. This
was the approach taken by Létourneau J.A. of the Federal Court of Appeal
in D & J Driveway, in which he found that there was no contract of employment based on the
provisions of the Civil Code and, in particular, on his finding that there was
no relationship of subordination, which he described as "the essential
feature of the contract of employment."
[25]
In addition to
D & J Driveway, I would note the decision of the Federal
Court of Appeal in 9041-6868 Québec Inc. v. Canada (Minister of National
Revenue), [2005] F.C.J. No. 1720 (QL) 2005 FCA 334 (Tambeau).
Décary J.A. wrote the following at paragraphs 2 and 3:
2 With respect to the nature of the
contract, the judge's answer was correct, but, in my humble opinion, he
arrived at it incorrectly. He did not say anything about the provisions
of the Civil Code of Québec, and merely referred, at the end of his
analysis of the evidence, to the common law rules stated in Wiebe Door
Services Ltd. v. Canada (Minister of National Revenue), [1986] 3 FC 533
(FCA) and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001]
2 S.C.R. 983. I would hasten to point out that this mistake is nothing new
and can be explained by the vacillations in the case law, to which it is now
time to put an end.
3 When the Civil Code of Québec came into
force in 1994, followed by the enactment of the Federal Law - Civil Law
Harmonization Act, No. 1, SC 2001, c. 4 by the Parliament of
Canada and the addition of section 8.1 to the Interpretation Act,
R.S.C., c. I-21 by that Act, it restored the civil law of Quebec to its
rightful place in federal law, a place that the courts had sometimes had a
tendency to ignore. On this point, we need only read the decision of this Court
in St-Hilaire v. Canada, [2004] 4 FC 289 (FCA) and the article by
Mr. Justice Pierre Archambault of the Tax Court of Canada entitled
"Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should
Replace It", recently published in the Second Collection of Studies in Tax
Law (2005) in the collection entitled The Harmonization of Federal
Legislation with Quebec Civil Law and Canadian Bijuralism, to see that
the concept of "contract of service" in paragraph 5(1)(a) of
the Employment Insurance Act must be analyzed from the perspective of
the civil law of Quebec when the applicable provincial law is the law of Quebec
[Emphasis added.]
[26]
As mentioned above,
there may be a fine line between a contract of employment and a contract for
services. It is important that as a starting point, we consider how the parties
themselves defined the nature of their contractual relationship. Here, evidence
of the parties' intention is clear. It shows that the parties wanted to enter
into a contract for services. In fact, when Mr. Lavoie stated to
Mr. Beaucaire that he would be a "self-employed worker", he was
indicating his intention to create a relationship in which the services
provided by Mr. Beaucaire would be carried out "completely independently"
and that he would have the freedom to choose his methods of execution. Even if
Mr. Beaucaire stated that he did not fully understand the concept of a
self-employed worker, he did acknowledge that it included the concept of
independence. The courts have recognized the importance of the parties'
intentions regarding their contractual relationship. For example, in Livreur Plus
Inc. v. Canada (M.N.R.), [2004] F.C.J. No. 267 (QL), Létourneau J.
stated, at paragraph 17:
17 What the parties stipulate as to the
nature of their contractual relations is not necessarily conclusive, and the
Court may arrive at a different conclusion based on the evidence before it: D
& J Driveway Inc. v. The Minister of National Revenue, 2003 FCA 453.
However, if there is no unambiguous evidence to the contrary, the Court
should duly take the parties' stated intention into account: Mayne Nickless
Transport Inc. v. The Minister of National Revenue, 97-1416-UI, February 26,
1999 (T.C.C.). Essentially, the question is as to the true nature of the
relations between the parties. Thus, their sincerely expressed intention is
still an important point to consider in determining the actual overall
relationship the parties have had between themselves in a constantly changing
working world: see Wolf v. Canada, 2002 FCA 96, [2002] 4 F.C. 396 (F.C.A.);
Attorney General of Canada v. Les Productions Bibi et Zoé Inc., 2004 FCA 54.
[Emphasis added.]
[27]
The question now is
whether there is unequivocal evidence to the contrary that would lead the Court
to find that the parties were mistaken about the true nature of their
contractual relationship. As I wrote in Banque Financière Inc. v. The
Minister of National Revenue and Carlo Massicolli, 2008 TCC 624,
at paragraph 59:
…
It is the function of this Court to ensure that the conduct of
parties in the performance of the contract was consistent with the intent that
they expressed when they agreed to form the contract.[13] Among other things, the Court must ensure that all conditions
essential to the existence of an employment contract were fulfilled. In the
case at bar, the condition that might pose a problem is the existence of a
relationship of subordination. As counsel for NBF noted in his oral argument,
citing the Civil Code, cases and scholarly writing in support, in Quebec the criterion that distinguishes
between a contract of employment and a contract of enterprise or for services
is the existence of a relationship of subordination
[28]
In my opinion, other
important citations from Livreur Plus Inc. also apply in this case:
19 Having said that, in terms of control the Court should not
confuse control over the result or quality of the work with control over its
performance by the worker responsible for doing it: Vulcain Alarme Inc.
v. The Minister of National Revenue, A-376-98, May 11, 1999, paragraph 10,
(F.C.A.); D & J Driveway Inc. v. The Minister of National Revenue, supra,
at paragraph 9. As our colleague Décary J.A. said in Charbonneau v. Canada
(Minister of National Revenue - M.N.R.), supra, followed in Jaillet v.
Canada (Minister of National Revenue - M.N.R.), 2002 FCA 394, "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. Monitoring the result must not be
confused with controlling the worker".
20 I agree with the applicant's
arguments. A subcontractor is not a person who is free from all restraint,
working as he likes, doing as he pleases, without the slightest concern for his
fellow contractors and third parties. He is not a dilettante with a
cavalier, or even disrespectful, whimsical or irresponsible, attitude. He works
within a defined framework but does so independently and outside of the
business of the general contractor. The subcontract often assumes a rigid
stance dictated by the general contractor's obligations: a person has to
take it or leave it. However, its nature is not thereby altered, and the
general contractor does not lose his right of monitoring the results and the
quality of the work, since he is wholly and solely responsible to his
customers.
…
24 Counsel for the respondent mentioned a number of facts in support of
her argument that the applicant exercised such control over its two workers
that the only conclusion could be that a relationship of subordination existed
between the parties. To begin with, she strongly emphasized the fact that the
delivery persons were subject to obligatory hours of availability, each worked
in a defined territory and they could not alter the work schedule without the
applicant's authorization.
25 With respect, I do not think that these three first points are
conclusive in determining the nature of the overall relationship between the
parties or suffice to change the nature of what they stated in the contract.
The reason is quite simple. Under its contract of enterprise, the applicant
assumed specific obligations of time and space toward its customers, the
pharmacies. As appears from the contract governing their relations, specific
times and places for collecting and delivering medication were agreed on
between the applicant and the pharmacies. These obligations are contained in
part in the subcontract with the delivery persons. The specific nature of the
duties and availability to carry them out are not the characteristic features
of a contract of employment. A contractor who hires the services of
subcontractors to perform all or part of the duties it has undertaken to
perform for its customers in accordance with a schedule will identify and
define what they have to do and ensure that they are available to do it: Charbonneau
v. Canada (Minister of National Revenue - M.N.R.), supra; Vulcain Alarme
Inc. v. The Minister of National Revenue, supra, at paragraph 4. Otherwise,
on this basis, one would have to conclude that the applicant itself was an
employee of the pharmacies, since it had to be available to serve them at the
agreed times and on the agreed schedule.
[Emphasis added.]
[29]
In my opinion, there
was a contract for services between Aldo and Mr. Lavoie. He had specific
obligations towards this client in terms of time limits and the work to be
accomplished. He had to go to certain places in the US
where Aldo planned to set up stores, and he had to produce plans describing the
space, including mechanical data. There was a time limit for producing these
plans. To carry out part of this contract for services, Mr. Lavoie hired Mr.
Beaucaire as a sub-contractor. His part was to collect the mechanical data and
reproduce them on the plans drawn using the AutoCad software program. In my
opinion, Mr. Lavoie did not have the right of control or direction over the
work Mr. Beaucaire performed. The evidence did not show that Mr. Lavoie
exercised such a right. The control exercised was on the result and the quality
of the work Mr. Beaucaire submitted.
[30]
It is true that in the
beginning, Mr. Beaucaire did not have the knowledge or experience required to
carry out the mandate he was given. It is normal that Mr. Lavoie would
provide his guidance to help him acquire this knowledge and experience. It is
also normal that Mr. Lavoie would verify the work Mr. Beaucaire submitted to
ensure its quality. This verification mainly addressed aesthetic issues, such
as the colour of the data reproduced using AutoCad. As was the case of the
delivery persons in Livreur Plus Inc., if Mr. Beaucaire did not wish to
accept a mandate, he was perfectly free to refuse it. This was, in fact, what
he did on at least two occasions.
[31]
The following comments
by Letourneau J. in Livreur Plus Inc., at paragraph 41, are also
relevant in this case:
41 The delivery persons had no offices or premises at the applicant's
location. They did not have to go to the applicant's location to do their
delivery work: ibid., page 81. Together with the right to refuse or
decline offers of services, these are factors which this Court has regarded as
indicating a contract of enterprise or for services rather than one
of employment: see D & J Driveway Inc. v. The Minister of National
Revenue, supra, paragraph 11.
[32]
In Sauvageau Pontiac
Buick GMC Ltée v. Canada (Minister of National Revenue), [1996] T.C.J. No. 1383 (QL), I adopted a
similar viewpoint, cited in D & J Driveway:
16 The Court does not consider
that, in the instant case, any relationship of subordination between Mr. Bédard
and Sauvageau Pontiac existed during the relevant period. To begin with, Mr.
Bédard was not required to be available at the Sauvageau Pontiac place
of business. Then, he was completely free to accept or to refuse the
delivery of a car. Sauvageau Pontiac could not exercise any control over
Mr. Bédard's activities. If he refused a delivery offer for any reason, all
that Sauvageau Pontiac could do was contact another of its driver-agents. The
task specified in the contract between Mr. Bédard and Sauvageau Pontiac was
very specific and limited in scope. His work involved either driving a car
from Sauvageau Pontiac's place of business to the customer's residence or
taking delivery of it at the client's and drive it back to Sauvageau Pontiac's
place of business. The service provided by Mr. Bédard was very similar to that
provided by companies delivering packages, except that here the package was the
car.
[Emphasis
added.]
[33]
As in D & J
Driveway, Livreur Plus and Sauvageau Pontiac Buick GMC Ltée, the
work Mr. Beaucaire was to provide was fairly simple and specific: collect the
mechanical data and reproduce it on the plan generated by a software program.
The ability to refuse or accept "offers of service" is a factor that
the case law has relied on to indicate a contract for services rather than a
contract of employment.
[34]
That Mr. Beaucaire
could leave the stores after he finished his work, without staying to help Mr.
Lavoie in his duties is another important indicator of the absence of a
relationship of subordination. The purpose of the contract was to carry out a
specific task and once it was completed, Mr. Beaucaire was free to do what he
wanted. If he had been hired as an employee, Mr. Lavoie would certainly have
asked him to help him finish his own work.
[35]
In my opinion, another
indicator that a contract for services exists rather than a contract of
employment is the fact Mr. Beaucaire did not work unless he received a specific
contract. When he did not have work, he had no services to render, and,
obviously, he was not paid. In such a context, it is plausible that Mr. Lavoie
had no right of control or direction over Mr. Beaucaire's work. As a result, with
no evidence showing that the parties' behaviour was not in accordance with
their intent, the only conclusion here is that Mr. Beaucaire provided his
services under a contract for services and not a contract of employment. As a
result, Mr. Beaucaire did not hold insurable employment during the
relevant period.
[36]
For all these reasons,
Mr. Beaucaire's appeal is dismissed.
Signed at Ottawa, Canada, this 21st day of May 2009.
Pierre Archambault
Translation certified true
on this 3rd day of
July 2009.
Elizabeth Tan,
Translator
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