Citation: 2007TCC261
Date: 20070620
Dockets: 2005-849(EI), 2005-850(EI),
2005-852(EI), 2005-853(EI),
2005-854(EI) and 2005-856(EI)
BETWEEN:
CHRISTIANE DUMAIS,
JEAN-FRANÇOIS DUMAIS,
AUBERGE SUR LA CÔTE INC.,
MARIO DUMAIS, OPERATING AUBERGE SUR LA
CÔTE ENR.,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] The appellants are
appealing from decisions of the Minister of National Revenue (the
"Minister") rendered under the Employment Insurance Act (the
"Act"). The Minister decided that Christiane Dumais (the "Female
Worker") and Jean‑François Dumais (the "Male Worker") did
not hold employment under a contract of employment and therefore did not hold
insurable employment within the meaning of paragraph 5(1)(a) of the
Act when they worked for Mario Dumais, who was operating Auberge sur la Côte enr.,
and when they worked for Auberge sur la Côte inc. (the "Payers"). The
Minister also decided that the Male Worker and the Female Worker (the "Workers")
did not hold insurable employment when they worked for the Payers, since he
concluded that this was excluded employment, as the Workers and the Payers would
not have entered into similar contracts if they had been dealing with each
other at arm's length.
[2] The relevant
periods for the Female Worker when she worked for Mario Dumais were as follows:
(i) from January 1, 1999, to October 23, 1999;
(ii) from December 26, 1999, to June 24, 2000.
[3] The relevant
periods for the Female Worker when she worked for Auberge sur la Côte inc. (the
"Company") were as follows:
(i) from June 25, 2000, to October 14, 2000;
(ii) from June 24, 2001, to September 29, 2001;
(iii) from October 7, 2001, to October 13, 2001;
(iv) from May 12, 2002, to October 26, 2002;
(v) from June 21, 2003, to September 13, 2003.
[4] The relevant
periods for the Male Worker when he worked for Mario Dumais were as follows:
(i) from June 3, 1999, to October 23, 1999;
(ii) from June 12, 2000, to June 24, 2000.
[5] The relevant
periods for the Male Worker when he worked for the company were as follows:
(i) from
June 25, 2000, to October 14, 2000;
(ii) from
June 24, 2001, to September 29, 2001;
(iii) from
November 23, 2001, to September 21, 2002;
(iv) from
September 30, 2002, to September 27, 2003.
[6] In rendering his
decisions in dockets 2005-856(EI), 2005-849(EI) and 2005‑853(EI), the
Minister determined that the Workers did not hold employment under a contract
of employment when they worked for Mario Dumais. These decisions were rendered
on the basis of the following assumptions of fact in docket 2005‑856(EI):
(a) On August 2, 1994, the appellant registered
the corporate name of "Auberge sur la Côte enr";
(b) The appellant operated a 12-room inn, a 3-bedroom
cottage and a dining room with a capacity of 68 persons;
(c) In 1999, the appellant was operating year
round;
(d) In January 2000, a fire at the inn forced
it to close until May 2000;
(e) The appellant hired up to 15 persons;
(f) During the investigation, the appellant
refused to disclose the documents requested by the respondent's representative;
(g) During the investigation, counsel for the
appellant advised the respondent's representative that there would be no interview
with the Male Worker or the Female Worker;
Jean‑François Dumais
(h) The Male Worker worked for the appellant as
head cook;
(i) The Male Worker's duties consisted of setting
the menus, dealing with suppliers and the other kitchen employees and preparing
the meals themselves;
(j) During very busy periods, the Male Worker
would work up to 80 hours per week;
(k) No accounting was made of the Male Worker's
hours of work;
(l) In 1999, the Male Worker's weekly salary
was $550;
(m) The Male Worker began rendering services
for the appellant in the beginning of May;
(n) The Male Worker did not begin receiving his
pay until the end of June;
(o) The Male Worker was rendering services to
the appellant on a full-time basis, without pay;
(p) On May 10, 2002, Christiane Dumais stated
to an HRDC investigator that in the spring, when the employees started working,
they would bank hours so that they would not be penalized when they became unemployed
and so that they would have large paycheques;
(q) On October 26, 1999, the appellant issued to the Male
Worker a record of employment that gave June 3, 1999, as the first day worked
and October 23, 1999, as the
last day worked. It also showed 672 insurable hours and 7 weeks with
$1,100.00 and 1 week with $1,126.83 as insurable earnings per week;
(r) On June 28, 2000, the appellant issued to
the Male Worker a record of employment that gave June 12, 2000, as the first day worked and June
24, 2000, as the last day worked. It also showed 82 insurable hours and
insurable earnings of $1,248.00;
(s) The Male Worker's records of employment do
not reflect the actual hours and periods worked;
(t) The periods during which the Male Worker
allegedly worked did not correspond to the periods actually worked;
(u) The appellant and the Male Worker entered
into an arrangement to allow the Male Worker to receive employment insurance
benefits while still rendering services to the appellant;
Christiane Dumais
(v) The Female Worker worked for the appellant
as an assistant manager;
(w) The Female Worker's duties consisted of
taking care of the reception desk, reservations, guest check-ins and check-outs
and bills, helping with breakfast, making up rooms, doing the laundry,
completing staff time sheets and keeping accounting records;
(x) The appellant reported that the Female
Worker worked 12 hours per day, 7 days per week;
(y) The Female Worker's weekly salary was $425
in 1999;
(z) No accounting was made of the Female
Worker's hours;
(aa) The appellant had a policy allowing
employees to bank their hours;
(bb) On May 10, 2002, the Female Worker stated to
an HRDC investigator that when the employees began working in the spring, they banked
hours of work so that they would not be penalized when they became unemployed
and so that they would have large paycheques;
(cc) Before and after the disputed periods, the
Female worker rendered services to the appellant on a full-time basis without
any remuneration;
(dd) On November 15, 1999, the appellant issued
to the Female Worker a record of employment that gave January 1, 1999, as the first day worked and October
23, 1999, as the last day worked. It also showed 795 insurable hours and 8
weeks with $850.00, 1 week with $1,172.59 and 1 week with $60.71 as insurable earnings
per week;
(ee) On June 28, 2000, the appellant issued to the Female
Worker a record of employment that gave December 26, 1999, as the first day worked
and June 24, 2000, as the
last day worked. It also showed 19 insurable hours and $177.84 as insurable earnings;
(ff) The Female Worker's records of employment
do not reflect the actual hours and periods worked;
(gg) The periods allegedly worked by the Female
Worker do not correspond to the periods actually worked;
(hh) The appellant and the Female Worker entered
into an arrangement to allow the Female Worker to receive employment insurance
benefits while continuing to render services to the appellant.
[7] In rendering his
decision in dockets 2004-854(EI), 2005-852(EI) and 2005‑850(EI), the
Minister determined that the employees did not hold employment under a contract
of employment when they worked for the company, based on the following assumptions
of fact in docket 2005‑854(EI):
(a) The appellant was incorporated on May 31,
1999; (admitted)
(b) The appellant operated a 12-room inn, a
3-bedroom cottage and a dining room with a capacity of 68 persons; (admitted)
(c) Before the appellant was incorporated,
Mario Dumais had been operating the inn personally since 1994; (admitted)
(d) Since 2000, the company has been operating
from May through November; (denied as drafted)
(e) The appellant hired up to 15 persons; (admitted)
(f) During the investigation, the appellant
refused to disclose the documents requested by the respondent's representative;
(denied as drafted)
(g) During the investigation, the counsel for
the appellant advised the respondent's representative that there would be no
interview with the Male Worker or the Female Worker; (admitted)
Jean‑François Dumais
(h) The employee worked for the appellant as
head cook; (admitted)
(i) The Male Worker's duties consisted of setting
the menus, dealing with suppliers and the other kitchen employees and preparing
the meals themselves; (admitted)
(j) During very busy periods, the Male Worker
worked up to 80 hours per week; (denied)
(k) No accounting was made of the Male Worker's
hours of work; (admitted)
(l) From 1999 to 2003, the Male Worker's
weekly salary was from $550 to $1,081; (denied)
(m) The Male Worker began rendering services
for the appellant from the beginning of May; (denied)
(n) The Male Worker did not begin receiving
payment until the end of June; (admitted)
(o) On May 10, 2002, Christiane Dumais stated to
an HRDC investigator that in the spring, when the employees started working,
they would bank hours so that they would not to be penalized when they became
unemployed and so that they would have large paycheques; (denied)
(p) Following his alleged layoffs at the end
of September or in mid October, the Male Worker continued to render services to
the appellant without reporting any earnings; (denied as drafted)
(q) On October 17,
2000, the appellant issued to the Male Worker a record of employment that gave June 25, 2000, as the first day worked and October 14,
2000, as the last day worked. It also showed 572 insurable hours and 7 weeks with
$1,248 as insurable earnings per pay period; (admitted)
(r) On October 2, 2001, the appellant issued to
the Male Worker a record of employment that gave June 24, 2001, as the first
day worked and September 29, 2001, as the last day worked. It also showed 588 insurable hours and $10,389.68
as insurable earnings; (admitted)
(s) On October 1, 2002, the appellant issued
to the Male Worker record of employment that gave November 23, 2001, as the first day worked
and September 21, 2002, as the last day worked. It also showed 572 insurable
hours and $10,494 as insurable earnings; (admitted)
(t) On September 30, 2003, the appellant issued to
the Male Worker a record of employment that gave September 30, 2002, as the
first day worked and September 27, 2003, as the last day worked. It also showed 776 insurable hours and $16,866.72
as insurable earnings; (admitted)
(u) The Male Worker's records of employment do
not reflect the actual hours and periods worked; (denied)
(v) The periods allegedly worked by the Male
Worker did not correspond to the periods actually worked; (denied)
(w) The appellant and the Male Worker entered
into an arrangement to allow the Male Worker to receive employment insurance
benefits while still rendering services to the appellant; (denied)
Christiane Dumais
(x) The Female Worker worked for the appellant
as an assistant manager; (admitted)
(y) The Female Worker's duties consisted of
taking care of the reception desk, reservations, guest check-ins and check-outs
and bills, helping with breakfast, making up rooms, doing the laundry,
completing staff time sheets, keeping accounting records and managing accommodations
staff; (admitted)
(z) The appellant stated that the Female
Worker worked 12 hours per day, 7 days per week; (denied)
(aa) No accounting was made of the hours worked
by the employee; (admitted)
(bb) From 1999 to 2003, the Female Worker's weekly
salary ranged from $425 to $643; (denied)
(cc) The Female Worker began to render services
to the appellant from the beginning of May; (denied)
(dd) The Female Worker did not begin receiving
her pay until end of June; (admitted)
(ee) On May 10, 2002, the Female Worker stated
to an HRDC investigator that when the employees began working in the spring,
they banked hours of work so that they would not be penalized when they became
unemployed and so that they would receive large paycheques; (denied as
drafted)
(ff) After her alleged layoffs at the end of
September or in mid October, the Female Worker continued to render services to
the appellant without reporting any earnings; (denied)
(gg) On October 17, 2000, the appellant issued to
the Female Worker a record of employment that gave June 25, 2000, as the first
day worked and October 14, 2000, as the last day worked. It also showed 654 insurable hours and 8
weeks with $936 as insurable earnings per pay period; (denied)
(hh) On October 2, 2001, the appellant issued to
the Female Worker a record of employment that gave June 24, 2001, as the first day worked and September 29,
2001, as the last day worked. It also showed 588 insurable hours and $7,421.20
as insurable earnings; (admitted)
(ii) On October 16, 2001, the appellant issued to
the Female Worker a record of employment that gave October 7, 2001, as the
first day worked and October 13, 2001, as the last day worked. It also showed 42 insurable hours and $530
as insurable earnings; (admitted)
(jj) On November 13, 2002, the appellant
issued to the Female Worker a record of employment that gave May 12, 2002, as the first day worked and
October 26, 2002, as the last day worked. It also showed 574 insurable
hours and $7,952.54 as insurable earnings; (admitted)
(kk) On September 16, 2003, the appellant issued to the Female
Worker a record of employment that gave June 21, 2003, as the first day worked and
September 13, 2003, as the last
day worked. It also showed 462 insurable hours and $7,085.65 as insurable
earnings; (admitted)
(ll) The Female Worker's records of employment
do not reflect the actual hours and periods worked; (denied)
(mm) The periods allegedly worked by the Female
Worker did not correspond to the periods actually worked; (denied)
(nn) The appellant and the Female Worker entered
into an arrangement to allow the Female Worker to receive employment insurance
benefits while continuing to render services to the appellant; (denied)
[8] In rendering his
decisions in dockets 2005-856(EI), 2005‑853(EI) and 2005‑849(EI), the
Minister determined that when the employees worked for Mario Dumais, they were
not at arms' length with him within the meaning of the Income Tax Act
(the "ITA"), based on the following assumptions of fact in docket
2005‑856(EI):
(a) Mario Dumais was
the sole owner of the corporate name "Auberge sur la Côte";
(admitted)
(b) The Male Worker
is the son of Mario Dumais; (admitted)
(c) The Female
Worker is the spouse of Mario Dumais; (admitted)
[9] In rendering his
decisions in dockets 2005-856(EI), 2005-849(EI) and 2005‑853(EI), the
Minister also determined that Mario Dumais and the Workers [translation] "were not dealing
with each other at arm's length in their employment relationship" and that
it was not reasonable to conclude that Mario Dumais and the employees [translation] "would have entered
into a substantially similar contract of employment with each other if they had
been dealing with each other at arm's length, taking into consideration the following
circumstances":
(a) All of the
appellant's employees had to fill out a time sheet, except for the Workers; (admitted)
(b) Except for the
Workers, all the appellant's employees were paid at an hourly rate on the basis
of the hours actually worked; (denied as drafted)
(c) The Workers
were paid a fixed weekly salary no matter how many hours were actually worked; (denied
as drafted)
(d) Before and after
the disputed periods, the Workers rendered services to the appellant without
receiving any pay; (denied)
(e) A worker dealing
at arm's length would have been paid for the hours actually worked; (denied)
(f) A worker
dealing at arm's length would not have worked 80 hours per week for a fixed
weekly salary; (denied)
(g) On November 4,
2004, Mario Dumais stated to a representative of the respondent that he
considered it to be normal for the Workers to perform unpaid work because this
was a family business; (denied as drafted)
(h) A worker
dealing at arm's length would not have performed unpaid work for the appellant;
(denied as drafted)
(i) The Workers' remuneration,
conditions of employment and duration of employment would not have been the
same if they had been dealing at arm's length with the appellant. (denied)
[10] In rendering his
decisions in dockets 2004-854(EI), 2005-852(EI) and 2005‑850(EI), the
Minister determined that when the Workers worked for the company "Auberge
de la Côte inc.", they were not dealing at arm's length with each other within
the meaning of the I.T.A., based on the following assumptions of fact in docket
2005-854(EI):
(a) Mario
Dumais was the sole shareholder of the appellant; (admitted)
(b) The Male Worker is the son of Mario
Dumais; (admitted)
(c) The Female
Worker is the spouse of Mario Dumais; (admitted)
(d) The Workers are
related to a person who controlled the appellant; (admitted)
[11] In rendering his
decisions, the Minister also determined that the company and the Workers [translation] "were not dealing at
arm's length with each other in their employment relationship" and that it
was not reasonable to conclude that the company would have entered into [translation] "a substantially
similar contract of employment [with the Workers] if they had been dealing with
each other at arm's length, taking into consideration the following
circumstances":
(a) All of the
appellant's employees had to fill out a time sheet, except for the Workers; (admitted)
(b) Except for the
Workers, all of the appellant's employees were paid at an hourly rate on the basis
of the hours actually worked; (denied as drafted)
(c) The Workers
received a fixed weekly salary no matter how many hours they actually worked; (denied
as drafted)
(d) Before and after
the periods in dispute, the Workers rendered services to the appellant without
being paid; (denied)
(e) A worker
dealing at arm's length would have been paid for the hours actually worked;
(denied)
(f) A worker
dealing at arm's length would not have worked 80 hours per week for a fixed
weekly salary; (denied)
(g) On November 4, 2004, Mario Dumais stated to a representative of the
respondent that he considered it to be normal for the Workers to perform unpaid
work because this was a family business; (denied as drafted)
(h) A worker
dealing at arm's length would not have performed unpaid work for the appellant;
(denied as drafted)
(i) The Workers' remuneration, conditions of
employment and duration of employment would not have been the same if they had
been dealing at arm's length with the appellant. (denied)
Position of the appellants
[12] The appellants
submitted essentially the following arguments:
(i) The Minister's
decisions were the result of an inappropriate exercise of his discretion,
because he committed such serious and important mistakes as to discredit the
whole discretionary process. Therefore, they ask that the Court set aside all
the Minister's decisions because they are illegal. In other words, the
appellants submit that the Minister acted in bad faith and that for this reason
alone, the decisions must be set aside. They criticize Pierre Rinfret, who
conducted the initial investigation at the request of HRDC (Human Resources
Development Canada), of having a preconceived idea about the insurability of
the Workers' employment before even having met them, of having refused to consider
all the facts and circumstances related to their employment and of having used
a series of tricks to trap the appellants and some of the Payers' employees. Finally,
they submit that the decisions rendered by the appeal officer, Nicole
Chouinard, were also essentially based on the same facts as those used by Mr.
Rinfret.
(ii) The terms and conditions
of employment for the Workers were reasonable, having regard to all the
circumstances. The Payers and persons dealing with them at arm's length would
have entered into contracts of employment substantially similar to those entered
into by the Workers and the Payers. As regards the work performed by the Workers
outside of the relevant periods, they submit that it was minimal, marginal and infrequent,
and that it happened for very short periods of time and was unrelated to the
work performed during the relevant periods. On the basis of the teachings of
the Federal Court of Appeal, they
submit that the Minister should not have taken into consideration unpaid work
performed by the employees outside of the relevant periods, having regard to
its nature, duration and importance.
(iii) The Workers held
employment under a contract of employment.
[13] In the years in
question, the evidence revealed the following, among other things, with regard
to the Payers:
(i) The
Payers operated an inn in the Charlevoix region. This inn offered hotel,
restaurant and catering services. The inn featured "B&B" packages
(accommodations and breakfast) and complete packages (accommodations, breakfast
and dinner).
(ii) The inn had 12 rooms for 2 to 4
persons, a 3-bedrooms cottage and a restaurant with a capacity of 68 persons.
The restaurant was generally open for breakfast and dinner. In addition,
reservations could be made for wedding and funeral receptions. Finally, the
restaurant was not exclusively used by guests staying at the inn. It is should
be noted that the Debeur Guide ranked the restaurant among the top 500 in Quebec.
(iii) The Payers had established a system
allowing certain employees to bank their hours.
(iv) The GST returns submitted by the Payers
showed sales during the periods in question as follows.
·
For Mario Dumais,
operating Auberge sur la Côte enr.:
|
End of period
|
Sales
|
|
12-31-1999
03-31-2000
06-30-2000
|
$54,669
$0
$49,413
|
·
For the company:
|
End of period
|
Sales
|
|
09-30-2000
12-31-2000
03-31-2001
06-30-2001
09-31-2001
12-31-2001
03-31-2002
06-30-2002
09-30-2002
12-31-2002
03-31-2003
06-30-2003
09-30-2003
|
$221,388
$49,879
$666
$60,332
$246,918
$47,786
$0
$47,337
$258,818
$50,208
$0
$46,158
$259,869
|
(v) The registrations in
the company's guestbook for 2001
showed there had been
·
21
overnight stays during the week of May 6
·
28
overnight stays during the week of May 13
·
20
overnight stays during the week of May 20
·
6
overnight stays during the week of May 27
·
41
overnight stays during the week of June 3
·
62
overnight stays during the week of June 10
·
66
overnight stays during the week of June 17
·
111 overnight
stays during the week of June 24
·
108 overnight
stays during the week of July 1
·
129 overnight
stays during the week of July 8
·
195 overnight
stays during the week of July 15
·
191 overnight
stays during the week of July 22
·
166 overnight
stays during the week of July 29
·
161 overnight
stays during the week of August 5
·
174 overnight
stays during the week of August 12
·
104 overnight
stays during the week of August 19
·
110 overnight
stays during the week of August 26
·
85
overnight stays during the week of September 2
·
54
overnight stays during the week of September 9
·
38
overnight stays during the week of September 16
·
78
overnight stays during the week of September 23
·
58
overnight stays during the week of September 30
·
84
overnight stays during the week of October 7
·
32
overnight stays during the week of October
·
6
overnight stays during the week of October 21
·
42
overnight stays during the week of October 28
·
9
overnight stays during the week of November
·
8
overnight stays during the week of November 11
·
4
overnight stays during the week of November 18
·
2
overnight stays during the week of November 25
·
25
overnight stays during the week of December 25
·
8
overnight stays during the week of December 30
(vi) In 1999, the inn
operated throughout the year, except for the month of November. From 2000, the inn
operated from May to November. However, although Mr. Dumais testified that the
inn was open from May to November, the period of greatest activity (the
"high season") was from the Saint-Jean-Baptiste holiday to
Thanksgiving, or occasionally to Labour Day. Mario Dumais's testimony on
this point is worth citing:
[translation]
Q. . . . Well, let's talk about the high season, which begins
. . .
A. Around . . .
Q. . . .when?
A. Around the Saint-Jean-Baptiste holiday.
Q. Around the Saint-Jean-Baptiste holiday, that means around
when?
A. Generally, it' always that, because if we don't have a
reception or anything after, after Thanksgiving, that may be a quiet period,
but it may also, depending on the seasons, depending on the heavy rains and the
years, that it may even be quiet following Labour Day, which means that we do
not have an occupancy rate of one hundred per cent (100%) during the week.
There may only be five or six rooms a week.
. . .
I note right away that
Mario Dumais had stated to
Ms. Chouinard that the high season went from the Saint-Jean-Baptiste holiday to
Thanksgiving. From this, I conclude that the high season generally extended
over a period of approximately 15 weeks and could occasionally last
approximately 11 weeks. I note that the testimonies and statutory declarations
given by the employees were so hazy, vague and imprecise about the duration of
the high season that it is impossible to determine its duration. Mario Dumais also
testified that the inn was quiet in the low season and that, for this reason, the
employees did not work full time during this period. On this point, Mario
Dumais explained that a considerable portion of the inn's turnover before the beginning
of the high season consisted of deposits (50% of the cost of the stay) paid by
clients for reservations at later dates. I note that Mario Dumais or the other
appellants could have submitted in evidence the accounting records of the Payers
to support this allegation. They did not do so. From this, I infer that this
evidence would have been unfavourable to them. Mario Dumais also testified that
the packages sold in the low season often involved B&B packages and that,
for this reason, the restaurant served few suppers during this period. I
immediately note that the inn guestbook for 2001 does not show this. In fact,
an attentive study of the guestbook leads me to conclude that, at least for the
year 2001, the B&B packages represented only a small percentage of the packages
sold by the Payers in the low season. I also note that the appellants' testimony
did not in any way mention the restaurant's turnover related to catering, wedding
and funeral receptions and meals served to clients not staying at the inn. The
appellants had a unique opportunity to support their allegations to the effect
that, for all intents and purposes, the restaurant only served breakfast during
the low season, by submitting the accounting records of the Payers and the
reservations book of the restaurant. They did not do so. From this, I infer
that this evidence would also have been unfavourable to them.
[14] The evidence revealed
the following about the Male Worker's employment:
(i) The appellants described
the employee's tasks as follows:
[translation]
General work
- Preparing menus at the beginning of the season (at home)
- Preparing orders at the beginning of the season (at
home)
- Hiring interviews (as needed)
- Preparing suppers (special events)
- Managing kitchen staff
- Keeping the kitchen in good order
Specific tasks
- Keeping inventory day after day, week after week
- Making food orders, receiving and storing them
- Preparing sauces
- Preparing pastries
- Preparing soups
- Preparing fish and meats (cuts, marinades)
- Preparing supper from 6:00 p.m. to 10:30 p.m.
- Preparing smoked salmon
- Preparing ice cream
- Preparing vegetables
- Preparing veal stock
- Preparing home-made cretons
- Preparing breakfast plates (placing plates)
The Chef's work begins with the start of the high season, around the
end of June, and finishes with the end of the high season, in early or mid
October. At the beginning and end of the season, the chef's work is sporadic, depending
on client demand.
(ii) During the year
1999, the Male Worker received remuneration totalling $8,826 from Mario Dumais,
as follows:
- $563 for the
week of June 20
- $563 for the
week of June 27
- $550 for the week of July 4
- $550 for the week of July 11
- $550 for the week of July 18
- $550 for the week of July 25
- $550 for the week of August 1
- $550 for the week of August 8
- $550 for the week of August
15
- $550 for the week of August
22
- $550 for the week of
September 12
- $550 for the week of
September 19
- $550 for the week of
September 26
- $550 for the week of October
3
- $550 for the week of October
10
- $550 for the week of October
17
It should be noted that the Male Worker was
not paid for the week of August 29 (even though it was the high season)
and the week of September 5 (also in the high season).
(iii) During the year 2000, the Male
Worker received remuneration totalling $1,248 from Mario Dumais, as follows:
- $624 for the week of June 11,
2000
- $624 for the week of June 18, 2000
(iv) During the year 2000, the Male
Worker did not receive any remuneration from the Payers for the high season
weeks of June 25 and July 2.
(v) During the year 2000, the
Male Worker received remuneration totalling $8,736 from the company, as
follows:
- $624 for the
week of July 9
- $624 for the
week of July 16
- $624 for the
week of July 23
- $624 for the week of July 30
- $624 for the week of August 6
- $624 for the week of August
13
- $624 for the week of August
20
- $624 for the week of August
27
- $624 for the week of
September 3
- $624 for the week of
September 10
- $624 for the week of
September 17
- $624 for the week of
September 24
- $624 for the week of October 1
- $624 for the week of October
8
(vi) Therefore, during the year 2000,
the Male Worker received remuneration totalling $9,984 from the Payers.
(vii) During the year 2001, in the
period from June 24 to September 23 (i.e., 14 consecutive weeks), the Male
Worker received a weekly salary of $724 from the company, for a total remuneration
of $10,388.
(viii) During the year 2002, the Male
Worker received remuneration totalling $10,494 from the company, as follows:
- $159 for the week of May 19;
- $795 for 13
consecutive weeks, beginning with the week of June 30 and ending with the
week of September 22.
(ix) During the year 2003, the Male
Worker received remuneration totalling $16,866 from the company, as follows:
- $901 for the week
of June 1
- $901 for the week
of June 8
- $1,045 for the week of June
15
- $1,045 for the week of June
22
- $901 for the week
of June 29
- $901 for the week
of July 6
- $901 for the week
of July 13
- $901 for the week
of July 20
- $901 for the week
of July 27
- $901 for the week
of August 3
- $1,081 for the week of August
10
- $1,081 for the week of August
17
- $901 for the week
of August 24
- $901 for the week
of August 31
- $901 for the week
of September 7
- $901 for the week
of September 14
- $901 for the week
of September 21
- $901 for the week
of September 28
(x) The Male Worker's records
of employment showed the following:
·
672 insurable hours for
the year 1999
·
736 insurable hours for
the year 2000
·
630 insurable hours for
the year 2001
·
574 insurable hours for
the year 2002
·
462 insurable hours for
the year 2003
(xi) The Male Worker received unemployment
insurance benefits during the following periods:
(a) from October 31, 1999,
to June 10, 2000 (benefits were $383 each);
(b) from October 15, 2000,
to June 30, 2001 (benefits were $329 each);
(c) from September 30, 2001,
to June 8, 2002 (benefits were $408 each);
(d) from September 22, 2002,
to May 17, 2003 (benefits were $412 each).
(xii) The Male Worker's hours worked
were not noted. Moreover, the appellants admitted that the insurable hours given
in the Male Worker's records of employment did not reflect the actual number of
hours worked during the relevant periods.
(xiii) In his statutory declaration made in the
presence of Mr. Rinfret, dated October 29, 2003, the Male Worker stated the
following, among other things:
[translation]
(Q4) Is it correct to sat that, from the time
when the inn begins operating, you start working in the kitchen?
(A) It depends. This year, I started
being paid full time from June 2, but in previous years, the pay period began
on June 24.
(Q5) What happened between
Victoria Day, in May, and June 24?
(A) Nothing much goes on. I make my orders and draw up
the menus. I prepare my kitchen for the summer re-opening.
(Q7) Are there clients at the inn between Victoria
Day and June 24?
(A) There sometimes are, but with the bed-and-breakfast package. In
mid May, I start to open the kitchen, and things start up full time at the Saint-Jean-Baptiste
holiday.
(Q8) During the period from the opening of the
kitchen in mid May to the end of June, were you paid for this work?
(A) Well, no. I did ¾ of the work at home. I have to wash the cold
storage room, clean the kitchen. I don't ask for any salary for that. I came
today to help my father close the inn. I won't be paid for that. It's a family
business.
(Q9) If I understand correctly, you may sometimes
come to the inn to render services outside of your periods of employment
without being paid?
(A) For sure. It's not as if there was work for three weeks. Today,
I came to (close) empty
the hot water tanks. In the winter, I may come and remove the snow on the roof,
and I am not paid. I just bought a house and I may go to BMR to buy materials; my
father pays me half of the cost for services rendered. I am not here 20 hours
per week.
. . .
(Q12) Who prepares supper from October to December?
(A) For example, last year, at Thanksgiving, it was me, and I
reported it. Outside of that, if it's only two or three suppers, it may be my assistant
or it's my father who prepares supper.
(xiv) In her appeal report, Nicole Chouinard
summed up the statements made by Mario Dumais concerning the employee as
follows:
[translation]
Concerning Jean-François Dumais:
29. Mr. Dumais states that Jean-François has
been working for the business since the very beginning, in 1994.
30. For several years, he has held the position
of head cook. As part of his duties, he is in charge of menus, the kitchen and
dealings with suppliers. He may also work elsewhere in the inn. His tasks are
determined by himself and Mario Dumais, who supervises him in the performance
of his work. He adds that Jean-François Dumais begins working in May, to
prepare the kitchen with a pre-season menu.
31. Mr. Dumais states that Jean-François has no
training as a head cook. He is self-taught. He learned everything he knows from
Jean-Louis Maltais, who was head cook at the inn in 1997 and 1998. Jean-François
subsequently took one or two cooking courses consisting of a few hours'
instruction. Mr. Dumais adds that the salary he paid Mr. Maltais was
higher than what he pays Jean-François because Mr. Maltais had 15 to 20 years'
experience as a cook.
32. Breakfast and supper
is served in the inn's restaurant. Dinners are served only when there is a
group reservation.
33. His work schedule is
from 12 noon to 10:30 p.m., 6 days a week. He has Sundays off.
His hours of work are always the same, even during the high season. He works
fewer hours in the low season. Mr. Dumais explains that he does not note his
hours worked and does not complete a timesheet like the other employees because
he is a manager in the business, like Christiane Dumais. They are not paid for
overtime. He adds that they are the only two paid managers in the business.
34. Mr Dumais states that the salary of Mr.
Dumais is a total amount paid for one week of work, regardless of the number of
hours worked. The payroll register indicates that he works 42 hours per week,
but this figure was entered only because the pay figures require it. In
reality, Jean-François works from 75 to 80 hours a week. As is the case for the
other employees, his salary is paid biweekly by direct deposit and includes his
vacation pay. He states that Jean-François Dumais has been paid for all the
weeks he has worked.
35. Mr. Dumais states that he would pay
the same salary to an unrelated stranger. According to him, the salary paid is
not too high because in their region the salary of a head cook is often higher
than that. According to him, a chef in Québec would not agree to come work
there on a full-time basis.
36. Mr. Dumais states that he is the one who
decides that Jean-François Dumais should stop working if there is less work. He
acknowledges that he does not work at all times during the period of operation.
He is not replaced and he performs his tasks personally when there are few
clients (from 6 to 8); otherwise, he asks him to report for work and then pays
him an hourly rate of $22. He adds that it would cost too much to hire him on a
full-time basis from the month of May.
37. When we asked Mr. Dumais if Jean-François
Dumais performs unpaid work for the inn, Mr. Dumais answered, "Yes, he
makes repairs, he renders services, this is normal, he is my son, he is allowed
to do so".
38. Mr. Dumais states that in 2003 and 2004,
when Jean-François took Sundays off, he was replaced by the sous-chef, Audrey
Belley. Before her, it was someone named George.
39. When we asked Mr. Dumais who trained Frédéric Desbiens
in May 2001, Mr. Dumais answered that Frédéric Desbiens was the third sous-chef,
and that it was Jean-François Dumais who met with him when he was hired. He
added that he had personally worked with Mr. Desbiens. He did not say who trained
him. He thought that maybe Jean-François was injured and was receiving worker's
compensation benefits in the spring of 2001. I asked Mr. Veilleux to
verify the dates on which Jean-François was injured and to let me know later.
40. Mr. Dumais states that, at the beginning of
the season, he sometimes has to take charge of the kitchen and prepare a
three-course meal. Mr. Dumais adds that he has no training in cooking and was a
teacher before he retired.
(xv) The Male Worker testified that he worked
from 60 to 70 hours per week during the high season. Mario Dumais testified
that during the high season, his son worked six, sometimes seven days per week,
from noon to 9:30 p.m. or 10:00 p.m. I note that Mario Dumais
also stated to Ms. Chouinard that the employee worked from 75 to 80 hours per
week.
From this, I conclude that the Male Worker worked a minimum of 65 hours per
week during the high season. I also conclude that the Male Worker generally
worked a minimum of 975 hours (15 weeks x 65 hours) during the high season and
occasionally a minimum of 725 hours (11 weeks x 65 hours).
(xvi) The Male Worker acknowledged that,
in each of the years in dispute, before the high season began, that is, outside
of the relevant periods:
(1) He did major housekeeping in the
kitchen, participated in hiring the kitchen employees, developed new menus from
his home, negotiated the cost of food with suppliers and determined the prices
for meals listed in the menu. The Male Worker acknowledged that he did the
equivalent of two weeks of unpaid work to perform these tasks, therefore,
approximately 130 hours (65 hours x 2). I also note that these tasks were part
of the employee's job description, which was submitted in evidence by the
appellants. In addition, the Male Worker admitted that he trained kitchen
employees during the periods and that he had performed the equivalent of
several days' unpaid work at this task for a total of approximately 20 hours.
(2) He prepared dinners for free as
required by the volume of business in the restaurant, although he was careful
to point out that the restaurant served few dinners during this period. I also
note that the employee admitted that he had acted as head cook without pay during
the very busy Victoria Day weekend, that is, outside of the relevant periods.
(xvii) Finally, I note that the Male
Worker acknowledged that he had also acted as head cook without pay for the
period from the end of the high season to the closing of the inn, obviously
taking pains to specify that the restaurant served few dinners during this
period.
(xviii) In his statutory declaration made in the
presence of Mr. Rinfret, dated July 10, 2002, Frédéric Desbiens stated, among other things, the
following about the work performed by the employee outside of the relevant
periods:
[translation]
(Q3) For how many years have you worked at the Auberge
sur la Côte?
(A) Not really years, rather five to six
months from May 2001 to September or October 2001. It's too bad, last week, I
threw out a note of my hours.
(Q4) What were your duties
at the inn?
(A) I was a sous-chef,
I replaced the chef one day per week, sometimes two. I worked an average of
five (days per) to six
days per week.
(Q5) With whom did you work?
(A) There was the chef, Jean-François
Dumais, and an assistant cook, Yves Lapointe, who was also a dishwasher. That
was the kitchen staff. There was another dishwasher for nearly three weeks.
(Q6) When did you begin to work at the Auberge
sur la Côte?
(A) Uh, well, I began to work around May
10 or 12, before the beginning of the season. I would work one or two days per
week.
(Q7) Who was working with
you in the kitchen during the month of May?
(A) Mario Dumais would
come to help me. Jean-François would come to tell me what to do and he would
then leave. I cannot say who would do the cooking on the other days. When we
were short of something, it was either Mario Dumais or Ms. Dumais who would run
errands at the convenience store.
(Q8) You told me a little while ago that you
began to work around May 10 or 12. How can you explain that on Record of Employment
A72129469, the first day worked noted in box 10 was June 17, 2001?
(A) Ms. Dumais told me that my first days
worked would be banked, because the payroll did not begin before the Saint-Jean
holiday. She told me that I would start getting paid around the Saint-Jean
holiday. She told me that I did not have to report it to unemployment because
she did not report it either. Finally, I think that she spoke to me about it. In
any event, I knew that if I had no pay, I would not be reported to
unemployment. If I did report it, I would have been penalized, because I would (not) have reported amounts of money that
I would not have received during those weeks.
(Q9) If I understand correctly, it was Ms. Dumais
who offered you the opportunity to participate in an hour banking system?
(A) Yes, it was Christiane Dumais.
(Q10) I have some timesheets here in the name of Frédéric
Desbiens. Do you recognize your handwriting on these timesheets?
(A) Yes, this is my handwriting on these
sheets. Yes, these are may timesheets. I did not write what is written on the
left side of these sheets.
(Q11) In your view, are these the hours you
actually worked?
(A) Yes, these are my hours.
. . .
(Q18) What can you tell me about Jean-François
Dumais?
(A) Well, my first two days in May were
training days, and the hours I worked were done with him. The whole family was
there, except for his sister. They were there almost every day. I was told to
say that the hours I did before June 24 were worked with Mr. Dumais and not
with Jean-François.
(Q19) Who told you that?
(A) It was Ms. Dumais, last week.
(Q20) Was Jean-François
Dumais always there when you worked before the Saint-Jean-Baptiste holiday?
(A) Yes, he was
always there. You could even say that he did more hours than me. When there were
lots of people at the inn, Jean-François did the cooking. Mario Dumais did not
really get involved with that. He certainly could not really make a three-course
meal.
(Q21) Do you have anything else to state?
A) Uh, no. I wouldn't think so.
(xix) Ms. Chouinard summed
up the statement given by Mr. Desbiens during a November 17, 2004 telephone interview
as follows:
[translation]
76. Mr. Desbiens confirms
having worked for the Payer's business in 2001. He remembers having met
investigator Pierre Rinfret in Charlesbourg on July 10,
2002.
Reading of his statutory declaration dated July 10, 2002:
Mr. Desbiens
confirms that this is in fact his statutory declaration. He made a correction
to his answer to question #7. It is not true that he did not know who did the
cooking on the days he did not work. He knows that it was Jean-François Dumais,
because Mario Dumais did not do any cooking. He adds that he is fed up with
protecting them, because he is the one who has the problems afterward.
He confirms
that Christiane Dumais met with him before his interview with investigator
Pierre Rinfret to ask him to say that it was Mario Dumais who gave him his
training in the beginning of May, instead of Jean-François Dumais. He confirms
that he actually was trained by Jean-François.
(xx) In his
testimony, Mr. Desbiens, whose credibility is not at issue, essentially
repeated the statements he gave to Mr. Rinfret and Ms. Chouinard, while
specifying that during the low season, his hours of work varied depending on
the volume of business at the inn. I also gather from the testimony and
statements given by Mr. Desbiens that Christiane Dumais had put pressure on him
so that he would hide the truth from the Minister about the nature of the work
and the actual number of hours of work performed outside of the relevant periods.
[15] The evidence showed
the following regarding the employment held by Female Worker during and outside
the relevant periods for each of the years in question:
(i) During the year 1999, the Female
Worker received $8,032 in insurable earnings from Mario Dumais, as follows:
- $609 for the week of
May 16
- $425 for the week of
June 20
- $425 for the week of
June 27
- $425 for the week of
July 4
- $425 for the week of
July 11
- $425 for the week of
July 18
- $425 for the week of
July 25
- $425 for the week of
August 1
- $425 for the week of
August 8
- $425 for the week of
August 15
- $425 for the week of
August 22
- $425 for the week of
August 29
- $425 for the week of
September 5
- $425 for the week of
September 12
- $425 for the week of
September 19
- $425 for the week of
September 26
- $425 for the week of
October 3
- $425 for the week of
October 10
- $747 for the week of
October 17
(ii) During the year 2000, the Female
Worker received $177 in insurable earnings (17 insurable hours) from Mario
Dumais.
(iii) During the year
2000, the Female Worker received $7,488 in insurable earnings from the company,
as follows:
- $468 for
the week of June 25
- $468 for
the week of July 2
- $468 for the week of
July 9
- $468 for the week of
July 16
- $468 for the week of
July 23
- $468 for the week of
July 30
- $468 for the week of
August 6
- $468 for the week of
August 13
- $468 for the week of
August 20
- $468 for the week of
August 27
- $468 for the week of
September 3
- $468 for the week of
September 10
- $468 for the week of
September 17
- $468 for the week of
September 24
- $468 for the week of
October 1
- $468 for the week of
October 8
(iv) During the year 2000, the Female
Worker received $7,665 in insurable earnings from the Payers.
(v) During the year 2001, the Female
Worker received $7,920 in insurable earnings from the company, as follows:
- $530 for the week of
June 24
- $530 for the week of
July 1
- $530 for the week of
July 8
- $530 for the week of
July 15
- $530 for the week of
July 22
- $530 for the week of
July 29
- $530 for the week of
August 5
- $530 for the week of
August 12
- $530 for the week of
August 19
- $530 for the week of
August 26
- $530 for the week of
September 2
- $530 for the week of
September 9
- $530 for the week of
September 16
- $530 for the week of
September 23
- $500 for the week of
October 7
(vi) During the year 2002, the Female
Worker received $7,952 in insurable earnings from the company, as follows:
- $75 for the week of
May 19
- $75 for the week of
June 16
- $583 for the week of
June 23
- $583 for the week of
June 30
- $583 for the week of
July 7
- $583 for the week of
July 14
- $583 for the week of
July 21
- $583 for the week of
July 28
- $583 for
the week of August 4
- $583 for
the week of August 11
- $583 for
the week of August 18
- $583 for
the week of August 25
- $583 for the week of
September 1
- $583 for the week of
September 8
- $583 for the week of
September 22
- $111 during the week
of October 6
- $111 during the week
of October 20
(vii) During the year 2003,
the Female Worker received $7,085 in insurable earnings from the company, as
follows:
- $583 for
the week of June 29
- $583 for
the week of July 6
- $583 for the week of
July 13
- $583 for the week of
July 20
- $583 for the week of
July 27
- $583 for the week of
August 3
- $583 for the week of
August 10
- $583 for the week of
August 17
- $583 for the week of
August 24
- $583 for the week of
August 31
- $583 for the week of
September 7
viii) The Female Worker's records of
employment show the following:
- 795 insurable hours for
1999
- 673 insurable hours for
2000
- 630 insurable hours for
2001
- 574 insurable hours for
2002
- 462 insurable hours for
2003
(ix) The Female Worker also received
employment insurance benefits during the low season.
(x) Her hours of work were not
recorded, and the records of employment did not reflect her actual hours of
work.
(xi) In her statutory declaration made in the
presence of Mr. Rinfret, dated October 28, 2003, the Female Worker stated the
following, among other things:
[translation]
(Q5) What are your duties at the Auberge sur la Côte?
(A) Receptionist, office work, check-outs in
the morning, and also check-ins.
(Q6) Do you have to hire staff for the inn?
(A) My husband does a lot of
that. We're both involved, sir. It's what helps us, when he is there, I'm not
there. We chat about it. I hired quite a lot in mid July. My husband does the
tablecloths, the ironing . . .
(Q7) What are the opening
periods of the inn?
(A) Ah,
before 2001, it was up to the day after New Year's Day. Last year, we closed on
November 3, and this year, it's been closed since October 26. In the spring, we
open for Victoria Day.
. . .
(Q16) I audited your
business in 2002 and noted that hours were banked in your business. Has this
practice changed?
(A) Yes, it
has changed, because the employees do not receive unemployment in the spring
any more, so they want to be paid faster.
(xii) In her appeal report, Ms. Chouinard summed
up some of the statements given by Mario Dumais concerning the Female Worker:
[translation]
15. He states that she is an assistant manager.
Her functions include taking care of the reception, doing the check-ins, the
check-outs, billing clients, helping with breakfast, making up the rooms, doing
the laundry, administrative work, such as filling out staff timesheets,
forwarding the information to the Desjardins payroll service and recording
bookkeeping entries made the day before. Breakfast is served from 8:00 a.m. to 10:00 a.m. when there are clients.
. . .
18. Her work schedule is from 7:45 a.m. to 9:00 p.m., 7 days per week. She does
not have any days off but sometimes, when it is quiet, he tells her to finish
work early. She always works the same number of hours, even in the high season.
In the low season, she works less. He explains that he did not record the
number of hours she works and that she does not fill out a timesheet like the
other employees, because she is a manager in the business.
. . .
21. Mr. Dumais states
that Ms. Dumais's salary is a total amount paid for one week of work, regardless
of the number of hours worked. The payroll register indicates that she works 42
hours per week, but this figure was entered only because the payroll service
requires it.
22. Concerning the
$5,000 paid to Ms. Dumais in 2002, Mr. Dumais explains that he paid her this
amount on his accountant's suggestion. He does not know how this amount was
recorded in the company's account books. Mr. Dumais states that the other
employees were not paid anything extra. Mr. Veilleux refuses to allow any
further questions about this amount to be put to his client.
23. Mr. Dumais states that he would pay the
same salary to an unrelated stranger. He states that Christiane Dumais was paid
for all the weeks worked. He adds that, when she worked a few hours outside of
her regular periods of employment, she was paid according to an hourly rate and
that these amounts were recorded in the pay book. Because he previously told us
that he checked the figures in the tables prepared by the insurability officer,
to be sure that they corresponded to the figures in the pay book, I asked him whether
I would find the amounts for the weeks when she worked less if I looked in
these tables. He answered that these amounts would not be recorded in them.
24. Mr. Dumais states that he is the one who decides
that Christiane Dumais should stop working when there is less work. He
acknowledges that she does not work throughout the entire period of operation.
She is not replaced, and he performs her work.
25. He does not think that Ms. Dumais worked on
November 2, 2001, during the
Charlevoix rally. He adds that the rally would bring a large supper to the inn,
but not any additional overnight stays.
26. When we asked Mr. Dumais if Ms. Dumais did unpaid
work for the inn, he answered, "Yes, that's normal, this is a family business".
27. When we asked him to explain why some
employees had stated that in May and June 2001 it was Christiane Dumais who
gave them instructions, and that she was always at the inn, Mr. Dumais answered,
"That's possible, but when she was there, it was not for six hours a
day".
. . .
We gave Mr. Dumais a copy of his statutory
declaration that he gave to Pierre Rinfret and signed on December 23, 2003, in
Ste-Foy. We read this declaration to him. When we asked Mr. Dumais if this
actually was his declaration we just read together, Mr. Veilleux told his
client not to answer.
(xiii) The appellants described the
nature of the work and the schedule of Female Worker as follows:
[translation]
7:45 a.m.: Wash the supper tablecloths and
place mats, fold them and store them.
Do the breakfast dishes while waiting for the second chambermaid.
Answer the telephone.
9:00 a.m.: Check-out until 10:30 a.m.
Clean up and set the tables.
12 noon Lunch time.
to 6:00 pm: Run
errands at the grocery store.
Reception desk
Do the bookkeeping for the tips and invoices and record time worked
(employees, waiters and kitchen, etc.)
From the end of June or beginning of July to the end of September or
beginning of October, depending on the volume of business.
At the beginning (May) and end of the season (October), work is
sporadic and depends entirely on the volume of business.
(xiv) In his testimony concerning the
work schedule of the Female Worker during the high season, Mario Dumais stated
the following:
[translation]
Q. At what time did Ms. Dumais's work schedule
begin?
A. She would usually show up at the inn around
half past seven (7:30 a.m.),
eight o'clock (8:00 a.m.).
. . .
Q. At what time would her workday finish?
A. Usually, it's between four o'clock (4:00 p.m.) and six o'clock (6:00 p.m.) in the evening.
. . .
Q. You told the appeals officer that her
schedule was from seven forty-five (7:45 a.m.) or a quarter to eight (7:45 a.m.) until nine o'clock (9:00 p.m.), seven days a week, during the high season?
A. Yes, yes.
Q. Is that it?
A. Yes, yes.
Q. O.K.
A. Well, that is in part the explanation that
I gave you, when we had people visiting, it was part of those hours, when we
had good clients or good friends visiting, she could delay the time when, at
which she could leave. The hours worked by Christiane or Jean-François or
myself or the employees were not written in stone. The employees, yes, because
they had a written schedule, but that was a time we set or something like that.
But once again, you know, well, you may conclude what you want to, but it
wasn't like that every day.
The work schedule of the Female Worker submitted in
evidence by the appellants and the testimony
of Mario Dumais on this point show that the Female Worker generally worked
7 days per week during the high season, from 7:45 a.m. to 6:00 p.m., for 10 hours and 15 minutes per day.
However, Mario Dumais had stated to Ms. Chouinard that his spouse worked 7 days
per week during the high season, from 7:45 a.m. to 9:00 p.m., that is, for 13 hours and 15 minutes per
day.
From this, I conclude that the Female Worker generally worked a minimum of
1,391 hours in the high season (15 weeks x 92 hours 45 minutes) and
occasionally a minimum of 1,020 hours (11 weeks x 92 hours 45 minutes.
(xv) On the subject of the unpaid work
performed by the Female Worker outside of the relevant periods, Mario Dumais
essentially testified that it was minimal (from three to four hours per week). He explained
that his spouse regularly went to the inn outside of the relevant periods to
relax, not to work, because there was [translation]
"not much to do" in Charlevoix during this period. However, he did
admit that occasionally, when she was at the inn outside of the relevant
periods, his wife could give instructions to the Payer's employees. The Female
Worker essentially testified to the same effect as her spouse on this point. It
is worthwhile to cite an excerpt of her testimony on this point:
[translation]
Q. In 2001, if I understand correctly, you began
in May to (inaudible), is that true?
BÉDARD J.: I did not understand your question, counsel.
BÉDARD J.: Well, I will rephrase the question.
Q. Do you know Suzie Gagnon?
A. I know Suzie Gagnon.
Q. And Anne-Marie Girard?
A. Naturally, they worked at our place.
Q. But they were the ones who took care,
there, of doing, for the rooms, it's, like, they were called chambermaids,
correct?
A. They are, they are my room attendants.
Q. That's it, room attendants. And you supervised them,
correct?
A. When, before that, for preparing the inn,
we would recall some of them, and I would ask them to do certain things.
Q. So that when these persons worked, you also worked?
A. Well, no.
Q. Weren't there only two of you?
A. No, no, I just told you that I would tell
them what to do, that's not work.
Q. O.K. Telling them what to do, for you, you were not
working?
A. No, of course not.
Q. O.K.
A. Of course not.
Q. But for the year 2001, do you remember the year 2001? In
May 2001?
A. I'll try and . . .
Q. O.K. If we look at, if we take the time
that these people put in or worked, the periods during which they worked,
Sylvie Gagnon and Anne-Marie Girard, it was about the same time when you were
also at the inn?
A. Not always, my husband was on site and knew
what he wanted, and when he gave orders to an employee for something that I
didn't see or if I was gone, he was the one who said what was to be done.
Q. But do you remember that in May and June,
beginning of June 2001, you were present at the inn at the same time as those
people were working?
A. I would make an appearance there occasionally.
Q. And do you remember that in 2001, in May
and in the beginning of June, that you were present at the inn at the same time
as those persons, do you remember it or do you not remember?
A. As I've said from the beginning, I would go
there and talk with them and see what they were doing.
The statutory declaration given by Anne-Marie Girard
on July 22, 2003, to Mr. Rinfret, her telephone interview on November 12, 2004, with Ms. Chouinard and her very
credible testimony
show that during 2001 she worked for the company as a room attendant,
specifically on May 5, 8 and 20 and on June 10, 15, 16, 17 and 22, therefore,
outside of the relevant periods and according to instructions given by the
Female Worker. The statutory declaration given by Suzie Gagnon on July 23, 2002, to Mr. Rinfret
and her very credible testimony
show that during 2001 she had worked for the company as a room attendant during
the weeks of May 27, June 3 and June 10, therefore outside of the relevant
periods and according to instructions given by the Female Worker.
[16] André Raymond, the
appellants' expert witness, testified as follows:
(i) His mandate was
to answer the following questions:
- Did
the positions held by the Workers exist in other businesses of comparable size?
- Did
the work conditions of the Workers correspond to the conditions offered for
similar positions?
- Was
the hiring period realistic and comparable with that of other comparable
businesses in the same field?
(ii) In the
performance of his mandate, he read the Minister's decisions, the job
descriptions of the Workers, their conditions of employment and information relating
to the Payers.
(iii) In
the case at bar, he took into consideration the following factors to determine whether
the Workers' conditions of employment were reasonable:
- The
restaurant's reputation and its obligation to respect certain standards in
keeping with its reputation and its ranking in a well-known guidebook. On this
point, he noted that the Debeur Guide had awarded two stars to the Payers'
restaurant and that this ranking was widely used in the inn's advertising in Quebec and abroad. Finally, he
stated that it was compulsory for the Payers to maintain the standards of
quality required to allow the inn to keep this ranking, and this is why it was
necessary to always have a renowned chef capable of attracting clients.
- The job
holder's experience.
- The
availability of labour and the ability to replace it.
- The
nature of the business (size, location, reasonableness of the activities).
- For
the purposes of his mandate, he read a study published in 2001 for the Conseil
québécois des ressources humaines en tourisme (CQRHT) [Quebec council for human resources
in tourism] which estimated that the hourly rate for a chef was at that time between
$17 and $26, and the salary of a chef hired on a year-round basis (40 weeks or
more) was from $35,000 to $54,500.
- The
data used by the Minister about the salaries of head cooks, which came from
Human Resources Development Canada and from the Institut de la statistique du
Québec [Quebec institute of statistics], are of little significance, because
they do not take into consideration all the factors mentioned above. Accordingly,
it is difficult to establish comparable data.
- Only a
survey of establishments in the Charlevoix region which are similar to the Payers'
in terms of size and activities would allow us to draw conclusions about the
reasonableness of the Male Worker's terms and conditions of employment. Accordingly,
the expert conducted a survey of six businesses in the Charlevoix region which
were comparable the Payers' in terms of size and activities. Unfortunately, this
survey was not part of his report submitted in evidence. Consequently, I did
not consider his testimony on this point, and I disregarded his conclusion to
the effect that the Male Worker's salary was reasonable, as this conclusion was
essentially based on this survey. I would add that the expert's conclusion must
also be disregarded because it was based on information given by Mario Dumais, particularly
as regards the Female Worker's hours worked, which I consider imprecise to say
the least.
(iv) His mandate
with regard to the Female Worker was much more complex. He stated the following
on this point:
[translation]
Q. What did you do
concerning Christiane Dumais, and how did you proceed?
A. Christiane Dumais's
case was a little more complex, because her tasks were more varied. Therefore,
as was touched on in our report, Ms. Dumais wore several hats, considering the
size of the business. I will describe her position, just to review a little
what we were saying. So, we could sum up her position as person in charge of accommodations,
maître d', housekeeper and person in charge of human resources. A sort of
melting pot, a little of everything that is done in a hotel.
So, once again, the
basis for comparison included various types of positions. We looked at maître d's,
housekeepers and accommodations managers. We looked at the job descriptions we
had. She did a little of all that. Therefore, she has to perform tasks that are
found in the largest of companies, which would be a little like an
accommodations manager. She is a supervisor, as she supervises the chambermaids,
among others. Therefore, there is supervisory relationship. Therefore, in our
study, what we did was determine whether this type of position existed in other
inns. Now, the name of the position varies considerably. That position actually
does exist. Hotel manager. There are all type of positions. But, in effect,
these are tasks which must be performed.
What we studied was
the difficulty in replacing someone in that position. It is very difficult to
find a replacement for a position like this, because if Ms. Dumais did not
perform these tasks, and if we take all of them and make one position with them,
there is a problem. Because someone is needed who does the washing, who folds
the tablecloths. Then we need someone who is an accommodations manager.
Therefore, someone who has experience with clients, who would be able to manage
a small hotel and "boss" a team a little bit. But for a person having
this experience, when you tell him, listen, among the tasks you will have to
perform, your will also have to wash tablecloths and dishes. That's not very
interesting for people. So, it is hard to find a replacement. On the other
hand, if you find someone who has experience in dishwashing and in laundry and
you tell him, well, now you will have to welcome clients who come from France, from Europe. Well then, the connection with
knowhow, there is a little bit of a "crunch". And in an inn, the
quality of the reception must not be neglected. That is what often makes an
inn's reputation. You spoke about the Hilton. I know that you won't go back.
Therefore, often it's . . . .
(v) For
comparison purposes, according to Service Canada, the salary of an
accommodations and restaurant manager (who has fewer responsibilities than the
Female Worker) is somewhere between $14 and $17 per hour.
(vi) For comparison
purposes, in its study, the CQRHT estimated that the salary of an accommodations
manager could range from $14 to $20 per hour, and the salary of a maître d'
could range from $7.19 to $12.88 per hour.
(vii) These data and
those used by the respondent are of little significance because they did not
take into consideration the versatility and adaptability of the job holder, her
experience, the availability of labour and ability to find a replacement, the
person's participation in marketing the inn and, finally, the nature of the
business (size, location, reasonableness of the activities, etc.).
(viii) Only a study of
establishments in the Charlevoix region whose size and activities are
comparable to those of the Payers' could allow us to draw a conclusion about
the reasonableness of the terms and conditions of the Female Worker's employment.
(ix) His study of six
establishments in the Charlevoix region led him to conclude that the terms and conditions
of the Female Worker's employment in this case were reasonable. For the same
reasons as mentioned above, I did not take this testimony on this point and the
conclusion into consideration. I would add that, in any event, I would not have
taken the expert's conclusion concerning the Female Worker into consideration because
it was based on information (particularly concerning her hours of work) given
by Mario Dumais. I consider this information to be imprecise, to say the least.
[17] The evidence also
showed the following:
(i) On October 8, 2004, Ms. Chouinard sent the
Payers a letter requesting that they disclose certain documents, namely, the
pay books for the years 1999 to 2003, the Workers' paycheques, the reservations
guestbook of the inn, the contract of sale of the inn and a copy of the company's
minutes book.
(ii) On October 19,
2004, during a telephone conversation, counsel for the appellants told the
appeals officer that he refused to disclose the requested documents because,
according to him, they could be used to improve the respondent's evidence.
(iii) On November 3, 2004, counsel for the
appellants reiterated his position in a fax and advised the appeals officer
that he objected to any interviews with the Workers.
(iv) At a November 4
meeting attended by Ms. Chouinard, Mario Dumais and counsel for the appellant, among
others, counsel for the appellant once again refused to disclose the requested
documents and gave the appeals officer documents which he deemed to be
relevant, namely, an excerpt from the minutes book of Auberge de la Côte inc.,
a copy of the deed of sale of the inn, a five-page excerpt from the payroll
register for the year 2002 and some advertising documents.
Analysis and conclusion
[18] Let us first review
the administrative process which led to these appeals.
(i) Pursuant to section
90 of the Act, the Commission requested an officer of the Canada Revenue Agency
authorized by the Minister to make a ruling on whether the employment held by
the Workers is insurable.
(ii) On January 15,
2004, and on January 26, 2004, following an investigation by Pierre Rinfret,
Pierrette Lecompte made rulings (Exhibit A-14) under subsection 90(3)
of the Act, according to which the employment held by the Workers was not
insurable because persons dealing at arm's length with the Payer would not have
had the same conditions of employment as the Workers.
(iii) Within the time
limit specified under section 91 of the Act, the appellants appealed Ms.
Lecompte's rulings to the Minister, pursuant to the same section of the Act.
(iv) In accordance with
subsection 93(1) of the Act, following the investigation by Danielle Chouinard,
Nicole C. Bérubé advised the appellants on December 6, 2004 (Exhibit A-14),
that the employment held by the Workers was not insurable, based on paragraphs 5(1)(a)
and 5(2)(i) of the Act.
(v) Pursuant to section
103 of the Act, the appellants appealed the rulings by Nicole C. Bérubé to this
Court within the time limit specified under that same section.
[19] Counsel for the appellants submitted that the
Minister's decisions were the result of an inappropriate exercise of his discretion,
because his conduct at the time of the initial investigation was affected by
errors sufficiently serious to discredit the discretionary process and allow
the Court to set aside all of the Minister's decisions.
[20] Counsel for the appellants was especially critical
of Mr. Rinfret's conduct during the initial investigation. Counsel argued that
Mr. Rinfret had decided to render a decision that was unfavourable to the
appellants even before having met them. According to counsel for the
appellants, Mr. Rinfret deliberately refused to consider relevant facts and
circumstances so as not to affect his preconceived idea about the insurability
of the Workers' employment. In addition, counsel for the appellants criticized
Mr. Rinfret for having used all kinds of tricks to trap inter alia the
Female Worker and Frédéric Desbiens, an employee of the Payers.
[21] In addition, without directly accusing Ms.
Chouinard (whose rulings are the subject of these appeals) of acting in bad
faith, counsel for the appellants submitted that her rulings were incorrect
because they were rendered essentially on the basis of the facts gathered by
Mr. Rinfret during the initial investigation, which was itself tainted.
[22] Counsel for the appellants also submitted that since
the initial investigation conducted by Mr. Rinfret was tainted, the appellants
were entitled to refuse to co‑operate with Ms. Chouinard. Furthermore,
as regards the request for documents sent to the Payers by Mr. Chouinard,
counsel for the appellants argued that section 93 of the Act does not create
an obligation to disclose these documents. Rather, this section of the Act provides
that an appellant may disclose information to protect his or her interests.
[23] There is no doubt that case law has very clearly
established that I may set aside the Minister's decisions if I conclude that he
exercised his discretion inappropriately, in that his conduct was capricious
and arbitrary. However, before setting aside the Minister's decisions, in my
opinion, it is appropriate to address the following issues:
(i) May I consider Mr.
Rinfret's conduct during the initial investigation? If so, did the appellants
discharge the burden on them so as to prove on a balance of probabilities that
Mr. Rinfret exercised his discretion inappropriately?
(ii) Does my role
rather consist in studying the conduct of Ms. Chouinard, as it is her decisions
which are the subject of this appeal? If that is the case, did the appellants
show on a balance of probabilities that Ms. Chouinard exercised her
discretionary authority inappropriately?
[24] Although the matter of my entitlement to consider
Mr. Rinfret's conduct during the initial investigation seems to me to be most
interesting, in this case, I do not see the use of answering it, because I am
of the opinion that Mr. Rinfret did not act in bad faith or for an unlawful purpose
or reason. In fact, I am of the opinion that the appellants did not discharge
the burden of proof on them with regard to this point. Of course, the evidence
did show that Mr. Rinfret did not consider all of the relevant documents when
he conducted his investigation, such as the Payer's account books and the
restaurant reservation books. All in all, the appellants at the most showed
that Mr. Rinfret's investigation could have been more thorough. However, in my
opinion, to establish Mr. Rinfret's bad faith during his initial investigation,
the appellants had to prove that he had deliberately refused to take note of
these relevant documents. The appellants simply did not satisfy me of this
fact. Moreover, I have difficulty explaining why the appellants did not show
Mr. Rinfret these documents which, according to them, would have allowed him to
make more enlightened decisions.
[25] As regards the allegations by counsel for the appellants
to the effect that Mr. Rinfret tried all kinds of tricks to trap Mr.
Desbiens and the Female Worker, I am of the opinion that they are simply unfounded.
It is simply not possible to accuse Mr. Rinfret of bad faith for having
encouraged Mr. Desbiens to change his version of the facts after having confronted
him with his own timesheets, which clearly showed that he had been part of a hours
banking system set up by the Payers. As regards the allegations by counsel for
the appellants to the effect that Mr. Rinfret deliberately trapped the Female
Worker by summoning her to an interview at the inn, in my opinion, they are
simply farfetched.
[26] In this case, did Ms. Chouinard act in bad faith or
for an unlawful purpose or reason? I am of the opinion that nothing in the
evidence shows any abusive behaviour by Ms. Chouinard. Quite the contrary, the
evidence shows that counsel for the appellants prevented Ms. Chouinard from
playing her role by refusing access to the documents which could have led her
to set aside the initial ruling. In fact, when an appeals officer receives an
appeal under section 91 of the Act, his or her role essentially consists in
verifying if there was additional information which could lead him or her to
set aside the initial ruling made by the authorized officer under section 90
of the Act. The appellants should understand that Parliament established a
second decision-making level not to allow the Minister to improve his evidence,
but rather, among other things, to allow the appellants to convince the
Minister to set aside his initial decision by disclosing information that was
not considered during the initial investigation.
[27] Because I have concluded that the Minister's
decisions were not the result of an inappropriate use of his discretion, I must
now perform the role assigned to me under the Act. The Federal Court of Appeal has defined on
several occasions the role granted by the Act to a justice of the Tax Court of
Canada. This role does not allow a judge to substitute his or her discretionary
decision for that of the Minister. Instead, the judge must "verify whether
the facts inferred or relied on by the Minister are real and were correctly
assessed having regard to the context in which they occurred, and after doing
so, . . . decide whether the conclusion with which the Minister was 'satisfied'
still seems reasonable".
[28] In other words, before deciding whether the
conclusion with which the Minister was satisfied still seems reasonable to me,
I must, in light of the evidence available to me, verify whether the Minister's
conclusions are, in spite of everything, well founded in whole or in part,
taking into consideration the factors mentioned in paragraph 5(3)(b) of
the Act.
[29] I immediately note that the appellant had the burden
of proving on a balance of probabilities that the facts inferred or relied on
by the Minister were not true or were not correctly assessed, having regard to
the context in which they occurred. I immediately note that although the
appellants were in a position to do so, they did not submit certain documents
in evidence, particularly the accounting books and the restaurant reservations
book for each of the years in question, which could have possibly cleared up
certain facts. This greatly influenced my decision, because I have inferred from
this that this evidence would have been unfavourable to the appellants.
[30] Therefore, I must determine whether the Payers and
the Workers would have entered into such contracts of employment had they been
dealing with each other at arm's length. In other words, I must determine whether
the Workers' conditions of employment were reasonable, having regard to all the
circumstances.
[31] The dispute essentially concerns the work
performed by the Workers outside of the relevant periods and their
remuneration.
[32] As regards the unpaid work performed outside of the
relevant periods, the appellants argue that it was minimal, marginal and
infrequent, took place over very short periods and was often unrelated to the
work performed during the relevant periods. Relying on the decision of the
Federal Court of Appeal in Théberge v. Canada (Minister of National Revenue – M.R.N.), [2002] F.C.J. No. 464 (Q.L.), the
appellants argue that the Court should not take into consideration the unpaid
work performed by the employees outside of the relevant periods.
[33] First of all, I note that the approach adopted in Théberge,
which dates back to March 28,
2002, was not followed in the
more recent judgment of the Federal Court of Appeal in Denis v. Canada,
[2004] F.C.J. No. 400 (QL). In his reasons delivered from the bench, Richard C.J.A.
noted the findings of fact made by the trial judge, including the following:
[34] As indicated by the documentary evidence, the appellant made up
the books by hand throughout the year: accordingly, she worked for the payer
outside the period at issue without charge. The appellant also ran errands for
the payer outside the periods at issue without being paid.
[34] The Federal Court of Appeal concluded that, at the
conclusion of his hearing, the judge did not err in finding that the Minister's
determination was reasonable.
It was not mentioned in this case that the trial judge had erred in considering
the unpaid work in confirming the decision of the Minister. I am of the opinion
that the unpaid work performed by a worker outside the relevant periods must be
considered when such work is not minimal and marginal and when such work is
part of the tasks assigned to the worker by his or her employer under the terms
of the contract of employment entered into by them.
[35] As regards the Male
Worker, the evidence showed that the unpaid work performed by him outside of
the relevant periods for each of the years in question was substantial and that
this work was part of the tasks assigned to him by the Payers under the
contract of employment entered into by them. I note on this point that before
the beginning of the high season, therefore outside of the relevant periods for
each of the years in question, the Male Worker did major housekeeping chores in
the kitchen, hired the kitchen employees, developed new menus at home,
negotiated the cost of food with suppliers, determined the cost of meals which
were on the menu and trained the kitchen employees. I also note that the
evidence showed that the Male Worker performed unpaid work for a minimum of 150
hours in performing these tasks, which he was bound to perform under the terms
of his contract of employment, as appears from his job description, which was
filed in the court record by the appellants. In addition, I note that the
evidence showed that the Male Worker had prepared dinners on a voluntary basis
outside of the relevant periods. On this point, the appellants claimed that the
guestbook of the inn for the year 2001, as well as the GST returns prepared by
the payers, which were pivotal in the Minister's decisions, did not in any way
show that the volume of business of the Payers outside of the relevant periods
was related to the operation of the restaurant. On this point, the appellants
added that if the Minister had taken pains to study the restaurant reservations
book and to analyze the volume of business of the Payers, which was mentioned
in their accounting books, he would have noted that few dinners were served at
the restaurant outside of the relevant periods, and he would have concluded
that the employee spent only a little time on this task. I note that the appellants,
who had the burden of proof, had an unhoped-for opportunity to submit these
documents, which they were in a position to submit, and thereby satisfy me that
the Minister reached mistaken conclusions on the basis of the documents he
studied and of his investigation. Unfortunately, the appellants did not
consider it worthwhile to submit these documents, even though they were in a
position to do so. I infer from this that this evidence would have been
unfavourable to the appellants, because it would have shown that many more
dinners were served in the restaurant outside of the relevant periods than what
they tried to have me believe, and that an important part of the volume of
business of the Payers was related to catering activities, wedding and funeral
receptions and dinners served to clients who were not staying at the inn. In my
opinion, these activities required a head cook. I conclude that it would be
completely unreasonable to think that a person who was dealing at arm's length
with the Payers would have agreed under his or her contract of employment to
work on an unpaid basis for so many hours outside of the relevant periods.
[36] As regards the unpaid
work performed by the Female Worker outside of the relevant periods, the
appellants submitted that it was infrequent, minimal and marginal. They claimed
that the Female Worker's services were not really required during the low
season, because the inn was not very busy during this period. They added that the majority of the tasks
performed by the Female Worker during the high season were performed by Mario
Dumais during the low season. The appellants' evidence on this point was based solely
on the testimonies of Mario Dumais the Female Worker, who testified to the same
effect as her spouse. I note that Mario Dumais testified to the effect that his
spouse regularly came to the inn during the low season to spend time and not to
work, if only for three or fours hours per week. I immediately note that these
testimonies did not satisfy me, especially considering that they were
contradicted by the very credible testimonies of several of the Payer's
employees. In addition, even if the evidence showed that the inn was not as
busy during the low season, it nevertheless showed that a significant number of
clients stayed there during this period and, accordingly, that the operation of
the inn required, if only to a lesser extent, that someone be available to
answer the telephone, take reservations, supervise the accommodations and
restaurant employees (waiters and waitresses), wash the tablecloths and place
mats, fold and put them away, act as a maître d' for the restaurant and bar, do
the accounting (entries in the general ledger and pay sheets) and see to
guests' check-ins and check-outs, although there were fewer of them during this
period. Considering the very credible testimonies of several of the Payers'
employees, I am of the view that it is more likely than not that this person was
the Female Worker and not Mario Dumais. In my opinion, during the low season,
the Female Worker had essentially the same responsibilities as in the high
season and performed her tasks on an unpaid basis. I am also of the opinion
that the Female Worker devoted a significant amount of time, although less than
in the high season, to the performance of such tasks on an unpaid basis. For
these reasons, I conclude that no person unrelated to the Payers would have
accepted such working conditions.
[37] Was the Workers' remuneration during the relevant
periods reasonable, having regard to all the circumstances? I note that the relevant
circumstances related to the Male Worker's employment were the following:
(i) The Male Worker was
head cook in a small family inn located in a remote region;
(ii) The quality of the
inn's restaurant was recognized by the Debeur Guide;
(iii) The volume of
business at the inn was intimately related to the reputation of its restaurant;
(iv) Only a competent
head cook could maintain the restaurant's reputation;
(v) The employment in
question was seasonal, as the inn was in operation for only part of the year;
(vi) The Male Worker was
a manager;
(vii) Because of the size
of the inn, its location and the seasonal nature of its operation, the Payers
would have difficulty replacing the Male Worker;
(viii) The Male Worker's
records of employment showed, among other things, the following information:
|
|
Insurable
hours
|
Insurable
earnings
|
|
|
|
|
|
1999
|
672
|
$8,826
|
|
2000
|
654
|
$9,984
|
|
2001
|
588
|
$10,388
|
|
2002
|
572
|
$10,494
|
|
2003
|
776
|
$16,866
|
(ix) During the year 1999,
the Male Worker received weekly earnings of approximately $550 from the payers
for 16 weeks;
(x) During the year 2000,
the Male Worker received weekly earnings of approximately $624 from the payers
for 16 weeks;
xi) During 2001, the Male
Worker received weekly earnings of approximately $724 from the payers for 14
weeks;
xii) During 2002, the Male
Worker received weekly earnings of approximately $749 from the payers for 14
weeks;
xiii) During 2003, the
employee received weekly earnings of approximately $937 for 18 weeks.
I note that the relevant
circumstances related to the employment held by the Female Worker were as
follows:
(i) The Female Worker
worked for the Payers as assistant to the manager, person in charge of
accommodations, maître d', housekeeper and person in charge of the employees.
In the performance of her tasks, she answered the telephone, took reservations,
supervised accommodations and restaurant employees (waiters and waitresses),
washed, folded and stored the place mats, acted as maître d' in the restaurant
and bar, did some accounting work (entries in the general ledger and pay
sheets) and, finally, saw to guest check-ins and check-outs. All in all, she
held several positions within this business.
(ii) The Female Worker's
records of employment showed, among other things, the following information:
|
Year
|
Insurable
hours
|
Insurable
earnings
|
|
|
|
|
|
1999
|
795
|
$8,032
|
|
2000
|
673
|
$7,665
|
|
2001
|
630
|
$7,951
|
|
2002
|
574
|
$7,952
|
|
2003
|
462
|
$7,085
|
[38] I note that the appellants in this case had the burden
of proving on a balance of probabilities that the Workers' remuneration during
the relevant periods was reasonable, having regard to all the circumstances. To
discharge this burden, the appellants had to establish the approximate number
of hours worked by the Workers in each of the years in question so as to be
able to show that the overall earnings received by the employees during these
periods were reasonable, having regard to all the circumstances.
[39] The evidence
submitted by the appellants in this case, on whom the burden of proof rested,
did not clearly establish the number of hours worked by the Workers during the
relevant periods for each of the years in question. Accordingly, in my opinion,
the appellants could not satisfy me of the reasonableness of the remuneration
during the relevant periods, having regard to all the circumstances. In fact,
the testimony of the appellants, their statutory declarations and the
statements given by Mario Dumais did not concern the Workers' hours of work
during the relevant periods, but rather the hours of work of Mario Dumais
during the high season, the duration of which, I note, did not necessarily
correspond to the duration of the relevant periods.
[40] However, only
because the evidence showed that the Male Worker had generally worked for a
minimum of 975 hours during the high season and for a minimum of 150 hours in
the low season during each of the years in question, I may conclude that the Male
Worker had been paid at an hourly rate of $7.84 in 1999, $8.87 in 2000, $9.23
in 2001, $9.32 in 2002 and $14.92 in 2003. It is obvious that these hourly
rates, especially on the basis of the study published in May 2001 for the CQHRT
(cited by the expert for the appellants), which established the hourly rate for
a head cook as being between $17 and $26, that the overall earnings of the
employee were not reasonable, having regard to all the circumstances. Having
regard to all the circumstance, I am of the opinion that no one would have agreed
to be paid such an hourly rate unless they were related to the Payers.
[41] Furthermore, only
because the evidence showed that the Female Worker had generally worked for a
minimum of 1,391 hours in the high season, I may conclude that she was paid at
an hourly rate of $5.77 in 1999, $5.51 in 2000, $5.71 in 2001, $5.71 in 2002
and $5.09 in 2003. I may therefore conclude that no person unrelated to the
Payers who is so competent and who has as many responsibilities as the Female
Worker did would have agreed to be paid at such a low hourly rate. This
conclusion is obvious, especially if I take into consideration the numerous
hours of unpaid work performed by the employee during the low season.
[42] On the basis of the
evidence before me, after considering the factors set out in paragraph 5(3)(b)
of the Act and after having verified their validity, the allegations made and
the conclusions reached by the Minister are, in my view, reasonable. Therefore,
I see no need to determine whether the Workers held employment under the terms
and conditions of a contract of employment.
[43] For these reasons,
the appeals are dismissed.
Signed at Ottawa, Canada, this
20th day of June 2007.
"Paul Bédard"
Translation certified true
on this 9th day of November 2007.
Michael Palles, Reviser
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