Citation: 2008 TCC 508
Date: 20081010
Docket: 2007-3554(EI)
BETWEEN:
PATRICIA CAROLA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
SERGE ROY IN HIS CAPACITY AS
CURATOR TO ALEXANDRINE LESSARD,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Archambault J.
[1]
Patricia Carola is
appealing from a decision by the Minister of National Revenue
("the Minister") that she was not employed under the terms of a
contract of service from November 7, 2004, to July 31, 2005
("the relevant period"). Serge Roy, as curator to the property
of Alexandrine Lessard, intervened in Ms. Carola's appeal to support the
Minister's decision, which relied on the following assumptions of fact, all of
which Ms. Carola has admitted to:
[TRANSLATION]
(a) On November 7,
2004, the Appellant was hired as a [TRANSLATION] "domestic helper"
by Nicole Roy, who is Alexandrine Lessard's daughter and the Payor's
sister.
(b) Alexandrine Lessard was suffering from
Alzheimer's disease and needed constant supervision at home.
(c) Nicole Roy hired the Appellant at the
request of her mother, who knew her and who demanded that the Appellant be the
person who looked after her.
(d) Following a disagreement with Nicole Roy, her
brother, the Payor, was appointed curator to the property of Alexandrine
Lessard on June 9, 2005, under a judgment of the Superior Court.
(e) Ms. Roy had hired the Appellant, under an
oral agreement, to look after her mother, who was incapacitated from both the
medical and legal standpoints.
(f) The Appellant had
to look after Ms. Lessard at all times.
She had to care for her, administer her medication, prepare her meals, keep the
house clean, help her get around inside and outside the house, and,
occasionally, bring her to her secondary residence in Prévost.
(g) The Appellant is neither a nurse nor a
personal care attendant, and had no medical duties in relation to Ms. Lessard, other
than to administer her medication.
(h) During the period in issue, CLSC Ahunstic
[sic] evaluated the care that would need to be provided to
Ms. Lessard, and allocated 10 hours per week for such care.
(i) The Appellant received 10 hours of
insurable earnings per week for the care given through the CLSC. In this
regard, she received a Record of Employment (ROE) specifying a total of 390
hours and $3,090.02 in insurable earnings.
(j) Since Ms. Lessard required supervision 24
hours a day,
the Payor hired the Appellant to look after her beyond the 10 hours subsidized
by the CLSC.
(k) According to the agreement between the
parties, the Appellant was to stay at Ms. Lessard's residence 4½ days a
week, 24 hours a day.
(l) Nicole Roy told her what tasks she was to
perform for her mother, and she continued to perform those tasks when the Payor
was appointed curator to Ms. Roy's mother.
(m) The Payor did not supervise the Appellant's
work daily, but he spoke regularly with his mother for news about her health
and to check whether everything was going well with the Appellant.
(n) Within the confines
of her five working days, the Appellant had complete freedom over the allocation
of her hours and the provision of the care required by Ms. Lessard,
and she did not have to provide a detailed report concerning the hours devoted
to each of her different tasks.
(o) Upon hiring, the Appellant's fixed
remuneration was $500 per week (raised to $600 per week in the course of
the period in issue)
for her five days of work for Ms. Lessard.
(p) The Appellant was remunerated every two
weeks by direct deposit.
(q) The Appellant received her pay without any
source deductions, and had no benefits (sick leave or paid holidays) from the
Payor.
(r) The Appellant used her personal automobile
for outings or errands with Ms. Lessard and to travel to Ms. Lessard's
secondary residence, and she received no compensation for the use of the
vehicle.
[2]
Alexandrine Lessard's
children Serge Roy and Nicole Roy testified at the hearing, as did Ms. Carola.
The evidence revealed the following additional facts. Ms. Lessard suffered
from Alzheimer's disease, which was diagnosed roughly three years before
Ms. Carola was hired (according to Nicole Roy's testimony).
[3]
The appeals officer
tried repeatedly to obtain information from Mr. Roy concerning the date on
which Ms. Lessard was determined incapable. She wrote as follows at page 6
of her report:
[TRANSLATION]
N.B. Shortly after our telephone
conversation, the Payor was asked for the date on which her physician
determined that Ms. Lessard was incapable, and for the details concerning remuneration
and hours worked by the Worker. Since the Payor did not respond to our
telephone call, a letter requesting the above information was sent, but remained
unanswered despite the fact that additional time was granted.
[Emphasis added.]
[4]
Ms. Lessard was a real
estate broker for many years. In addition, she owned several rental properties
during the relevant period. Mr. Roy testified that, in July 2005,
his mother owned five rental buildings and had 20 tenants. She had met
Ms. Carola in the context of her brokerage work and had been the broker
for the sale of her property upon her divorce.
[5]
Owing to problems
managing her own finances (her bills and tenants' rents), it appears
that Ms. Lessard signed a notarial power of attorney in or about 2003.
According to Mr. Roy, the power of attorney dates back to early 2004. It conferred
on both of Ms. Lessard's children the power to look after her affairs.
Given her mother's loss of independence, Ms. Roy undertook discussions
with CLSC Ahuntsic to determine which resources could be placed at her
disposal to provide services to her mother.
[6]
The appeal report
states that Mr. Sylvain Léonard of CLSC Ahuntsic's finance department
provided the following information:
[TRANSLATION]
48. The direct allowance program is a government program
administered by the Ministère du Revenu. Under the program, anyone who
works for seniors, regardless of the case or the number of hours that have been
allocated, has the title of home care services provider and is considered an
employee, and CES is required to make source deductions.
49. In the past, service recipients or their representatives were
personally responsible for paying their domestic help, but there was an
enormous amount of work paid under the table. This is why the CES was
created.
50. A person recognized by the CLSC prepares a service plan
following an assessment of the service recipient's condition. The CLSC will
never pay for more than the number of hours determined based on the assessment,
but may pay for fewer hours. The service recipient must fill out a time
sheet in order to determine the number of hours for which the worker is to be
paid.
51. If the service recipient does not know anyone, a CSLC
employee will be dispatched to provide the services.
52. The CLSC does regular checks at the service recipient's
residence in order to verify whether the services have been provided in
accordance with the service plan prepared at the outset.
[Emphasis added.]
[7]
CLSC Ahuntsic conducted
an assessment and determined that it could fund the presence of a domestic
helper for 10 hours. Based on its financial resources, it was unable to provide
more than 10 hours worth of funding. However, Ms. Lessard's children
believed that more help was needed to ensure that someone would be with her
longer.
[8]
This is why Ms. Roy took
steps to find someone to look after her mother. She said that she
initially looked for someone with experience and medical knowledge. However,
Ms. Lessard demanded that Ms. Carola be her home care provider. Ms. Roy
offered a base salary of $250 to $300 for four days of service per week. After
consulting with her loved ones, Ms. Carola turned down that offer and made
a counter-offer of $500, which Ms. Roy accepted. The duties that
Ms. Carola was assigned are described above.
[9]
The CLSC subsidy was
initially $9.44 per hour, but was increased to $10.44. Thus, the
assistance that Ms. Lessard initially received was $94.40 per week, and
that amount served to pay part of Ms. Carola's $500 weekly salary.
[10]
Although it appears
that the Minister took it for granted that the CLSC was Ms. Carola's
employer, the evidence as a whole, including the testimony given by Mr. and Ms.
Roy, discloses that it was not.
[11]
First of all, nothing
suggests that there was a contract between Ms. Carola and CLSC Ahuntsic.
On the contrary, the notices of deposit prepared by CES show that CES was
acting as paymaster for the purpose of managing the direct allowances under the
program to assist people with decreasing abilities, and that the amount was
deposited to the credit of Alexandrine Lessard (see Exhibit A‑10).
The deposit slip and notice of deposit both name Ms. Carola and Ms. Lessard.
CES made the source deductions, including the deductions in respect of Ms.
Carola's employment insurance (EI) premiums. The notice of deposit also
makes reference to vacation pay: out of an amount of $110.03, there is $4.23 in
vacation pay and a $2.15 EI premium. Based on this notice of deposit, CES was
acting as Ms. Lessard's mandatary when it paid Ms. Carola her remuneration.
[12]
In addition to the
notice of deposit, there is the Record of Employment (ROE) which Mr. Roy signed
in his capacity as curator on August 18, 2005, and which identifies Alexandrine
Lessard as Ms. Carola's employer. This ROE covers the period from
November 7, 2004, to August 6, 2005, and refers to 390 insurable
hours and a total of $3,090.02 in insurable earnings.
[13]
Mr. Roy testified
that he felt obliged to accept this approach set up by CSLC Ahuntsic and
CES in order to be able to benefit from the subsidy. In his submission, the
amounts paid by Ms. Lessard through him or through Ms. Roy were
remuneration for the services of a self‑employed worker. I use
the word "remuneration", but Mr. Roy, a lawyer trained in Quebec
civil law, who was the Registrar and Clerk of the Gomery Commission during the
relevant period, used the term [TRANSLATION] "salary" to describe the
remuneration that Ms. Carola was paid.
[14]
Ms. Carola says that
she worked for Ms. Lessard only four and a half days a week, on Mondays,
Tuesdays, Wednesdays, Saturdays and Sundays. No one replaced her on the other
two days. According to Ms. Carola, Ms. Lessard was not
completely incapable. In fact, her children allowed her to collect the
rents from two of her units, specifically, the unit located at her principal
residence and the unit located at her secondary residence, which provided her
with about $1,200 per month. Ms. Lessard personally went to the Caisse
populaire once a month to negotiate the cheques.
[15]
Ms. Carola also says
that she went with Ms. Lessard when she saw the doctor for an assessment of her
mental capacity. Apparently, the examination was only about 15 minutes long,
and Ms. Lessard was irritated with the tests performed on her. Apparently, she said:
[TRANSLATION] "They take me for an imbecile."
[16]
On
June 9, 2005, the Superior Court delivered a decision from the bench
in which it established a private curatorship to Ms. Lessard's person
and property and appointed Mr. Roy as the curator. Mr. Roy was entitled to
compensation of $20 per hour, up to a maximum of $500 per week, for fulfilling
this duty. Ms. Roy received $2,700 for the administration work that she
performed from May 2004 to February 8, 2005. Mr. Roy was
awarded remuneration retroactively, effective February 8, 2005.
Thus, it seems likely that the transfer of powers from Ms. Roy to
Mr. Roy occurred after the judgment of February 8, 2005, was
rendered. That judgment also implemented Mr. Roy's proposal to make $2,400
available to Ms. Lessard every month for her personal needs
(see Exhibit INV‑1).
[17]
During the month of
July 2005, Ms. Carola accompanied Ms. Lessard on her visit to her sister
in the Beauce region. Following her arrival, Ms. Carola expressed the wish
to return, but she remained in the Beauce with Ms. Lessard at Mr. Roy's
insistence. Upon returning, Ms. Carola, who felt tired, took a one-week
vacation at her own expense, after which she returned to Ms. Lessard's
home, where Mr. Roy notified her that he was terminating her contract. It
appears that several elements gave rise to frustration in the relationship
between Ms. Carola and Mr. Roy. Mr. Roy says that he noticed, while his
mother and Ms. Carola were away in the Beauce, that the home had not been
cleaned, the pots had not been washed, and the refrigerator had been neglected.
[18]
When Ms. Carola applied
for employment insurance (EI) benefits, the only ROE that was prepared was the
ROE for August 2005, which reported only 390 insurable hours. Since Ms. Carola
had worked considerably more hours than that, she contested the Department's
calculation of her insurable hours. She reminded the EI officer that she had
worked 24 hours a day, five days a week (see the EI officer's file adduced as
Exhibit A‑3, and in particular page 9 of 24). Upon investigating,
the officer determined that Mr. Roy's position was that Ms. Carola
had two statuses, namely, that of a self-employed worker and that of an
employee, it being clear that the employee status applied only to the work
remunerated through the CLSC Ahuntsic subsidy.
Analysis
[19]
In Chantal
Rhéaume v. Minister of National Revenue, 2007 TCC 591,[10] I described as follows
the rules for determining whether a contract is a "contract of
service" (contract of employment) for the purposes of subsection 5(1)
of Employment Insurance Act, or whether it is, instead, a contract for
services:
[21] The issue is
whether Ms. Rhéaume was employed in insurable employment for the purposes
of the Act. The relevant provision is paragraph 5(1)(a) of the Act,
which provides:
5(1) Subject to
subsection (2), insurable employment includes
(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.]
[22] This provision defines
insurable employment as employment under a contract of service (or, in more
modern parlance, a contract of employment). However, the Act does not
define the concept of a contract of employment. Section 8.1 of the Interpretation
Act addresses circumstances such as the one in the case at bar:
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.]
[23] The provisions most relevant to
the task of determining whether a contract of employment exists in Quebec, and
distinguishing such a contact from a contract for services, are 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.]
[24] Upon analysing these
provisions of the Civil Code, it is clear that
three essential conditions must be met in order for a contract of employment to
exist: (i) prestation of work by the employee; (ii) remuneration paid
by the employer for this prestation; and (iii) a relationship
of subordination. The factor that clearly distinguishes a contract for
services from a contract of employment is the existence of a relationship of
subordination, that is to say, the employer's power of direction or control
over the worker.
[25] Legal scholars have
reflected on the concept of "power of direction or control", and,
from the reverse perspective, the "relationship of subordination".
Robert P. Gagnon writes as follows:
[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.]
5. The question the trial judge should have
asked was whether the company had the power to control the way the workers
did their work, not whether the company actually exercised such control.
The fact that the company did not exercise the control or that the workers did
not feel subject to it in doing their work did not have the effect of removing,
reducing or limiting the power the company had to intervene through its board
of directors.
[Emphasis added.]
[28] The following
comments by the Minister of Justice concerning article 2085 C.C.Q.,
which accompanied the draft Civil Code and which I quoted in my article
entitled "Contract of Employment: Why Wiebe Door Services Ltd.
Does Not Apply in Quebec and What Should Replace It" at page 2:26, should
be added:
[TRANSLATION]
The
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.]
[29] In my opinion, the rules
governing the contract of employment in Quebec law are not identical to the
common law rules, and thus, it is not appropriate to apply common law decisions
such as Wiebe Door Services Ltd. v. Minister of National Revenue, [1986]
3 F.C. 553 (F.C.A) and 671122 Ontario Ltd. v. Sagaz Industries
Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59.
At common law, "there is no universal test to determine whether a person
is an employee or an independent contractor . . . The
central question is whether the person who has been engaged to perform the services
is performing them as a person in business on his own account. As Major J. Held
in Sagaz:
47 Although there is no universal test to
determine whether a person is an employee or an independent contractor, I agree
with MacGuigan, J.A. that a persuasive approach to the issue is that taken by
Cooke, J. in Market Investigations, supra. The central question is whether the person who has been
engaged to perform the services is performing them as a person in business on
his own account. In making this determination, the level of control
the employer has over the worker's activities will always be a factor. However,
other factors to consider include whether the worker provides his or her own
equipment, whether the worker hires his or her own helpers, the degree of
financial risk taken by the worker, the degree of responsibility for investment
and management held by the worker, and the worker's opportunity for profit in
the performance of his or her tasks.
48 It bears repeating that the above
factors constitute a non-exhaustive list, and there is no set formula as to
their application. The relative weight of each will depend on the particular
facts and circumstances of the case.
[Emphasis added.]
[30] Consequently, at common law, it is
possible to hold that a contract of employment exists without even deciding the
factual question of whether a power of control or direction exists.
[31] In Quebec, unlike the common law
situation, the central question is whether there is a relationship of
subordination, that is to say, a power of control or direction. Courts have no
choice but to determine whether or not there is a relationship of subordination
in order to determine whether a contract constitutes a contract of employment
or a contract for services. That is the approach that Létourneau J.A. of the
Federal Court of Appeal adopted in D & J Driveway,where he determined that there was no
contract of employment based on the provisions of the Civil Code, and,
in particular, his finding that there was no relationship of subordination,
which he described as "the essential feature of the contract of
employment."
[32] In
addition to the decision in D & J Driveway, I would point
out the decision of the Federal Court of Appeal in 9041‑6868 Québec
Inc. v. Canada (Minister of National Revenue), [2005] F.C.A. No. 1720
(QL), 2005 FCA 334, where Décary J.A. writes as follows 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 SCC 59,
[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, S.C.
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.]
[33] Lastly, before finishing this
statement of the rules that govern the determination of whether
Ms. Rhéaume held insurable employment, we should recall the remarks made
by Picard J. of the Quebec Superior Court in 9002‑8515 Québec Inc., which
I reproduced at paragraph 121, page 2:82 of my paper:
15 In order for there to
be a contract of enterprise, there must be no relationship of subordination and
the Agreement contains several elements showing a relationship of
subordination. A sufficient number of indicia exists in this case of a
relationship of authority.
[20]
In the case at bar, the
rules of the Civil Code of Québec ("the Civil Code") must
indeed be applied in order to determine whether Ms. Carola was bound by a
contract of employment or a contract for services.
The Minister's decision
[21]
It is interesting to
note that the EI eligibility officer, who applied common law principles (the
four criteria referred to in Wiebe Door), determined that a contract of
employment existed, whereas the appeals officer, who applied the rules in the
Civil Code, determined —
wrongly, in my view — that
a contract for services existed.
[22]
Upon reading the appeals
officer's analysis (Exhibit A‑4), one can see that the initial
statement at page 7 of her report, that [TRANSLATION] "we must refer to
the provisions of the Civil Code of Québec, which dictates the rules of
a contract of employment and the rules of a contract of enterprise", is
correct in law. She properly refers, inter alia, to articles 2085, 2098 and
2099 of the Civil Code. In step 2 of her analysis, she describes the evidence
regarding (a) the performance of the work, (b) the remuneration, and (c) the
relationship of subordination. With respect to the last criterion, she writes:
[TRANSLATION]
(c) Relationship of subordination
The "relationship of subordination"
criterion, also referred to as the employer's control over the worker, is based
on the fact that, in a contract of employment, the payor has a right of
direction over the worker and a right to control every aspect of the worker's
employment. The payor determines the final result, as well as the time,
place and manner in which the worker carries out her duties. A contract for
services is a contract in which one party agrees to perform specific work for
another party. This contemplates the carrying out of a specific employment
or task.
In the present case, the payor, following a CLSC assessment, was
allocated a total of 10 hours for the services of a domestic helper. The
mandatary, Chèque Emploi Service, paid the salary directly to the worker.
The worker had to stay with Ms. Lessard permanently 4½ days a week,
24 hours a day. The payor gave the worker the tasks that she was to
perform. She performed them in the order of her choice during her hours of
work. Although the payor told her what needed to be done, she set her
priorities, as long as the requested tasks were performed. She herself chose
the means by which the payor's needs were met. She held no other employment
during the period in issue.
The worker could not hire someone else to help or replace her. She
had to perform her work personally. In fact, Ms. Lessard had specifically asked
that Ms. Carola be the person who worked for her.
Ms. Lessard was considered medically incapable because she had
Alzheimer's disease. It was impossible to obtain the exact date on which
she was declared incapable, but one can say that this occurred after the worker
was hired, because the worker was with her for her doctor's visit in this
regard.
The CLSC did regular checks, and Serge Roy would have been informed
of the situation if she had been unsatisfactory. In fact, Serge Roy called his
mother and the worker 3-4 times a week to check that everything was going well.
The only instruction that the worker received was to notify
Ms. Roy if she wanted to be away, so that Ms. Lessard would not remain
alone.
Serge Roy dismissed the worker because he was not satisfied with the
condition of the house and he suspected that she stole money from
Ms. Lessard.
[Emphasis added.]
[23]
However, she errs when
she concludes:
[TRANSLATION]
Results of analysis
Considering the type of work to be done, the elements set out in point (c) are considered by the court to
be neutral elements.
[Emphasis
added.]
[24]
As I said in Grimard,
supra, at paragraphs 22-23:
[22] There are numerous common
law decisions in which the courts have held that the "control" factor
is neutral and therefore not conclusive. In the common law, it is thus
possible to conclude that a contract of employment exists without making any
finding of fact regarding the existence of a right of control or direction.
[23] In Quebec, unlike in the common
law, the central question is whether there is a relationship of subordination,
that is, a power of control or direction. To determine that a contract is
a contract of employment or a contract for services, as the case may be, a
court has no choice but to make a finding as to the presence or absence of a
relationship of subordination. . . .
[Emphasis added.]
[25]
The courts in the rest
of Canada apply the common law rules to determine the relative importance of
each criterion established by the case law. In fact, the Supreme Court of
Canada held in Sagaz that none of the criteria is conclusive. To better
illustrate this common law approach, it is worth quoting the following remarks
by Robertson J.A. in Still v. Canada (Minister of National Revenue),
[1997] F.C.J. No. 1622, [1998] 1 F.C. 549, at paragraph 46:
46 Professor Waddams suggests that where a statute
prohibits the formation of a contract the courts should be free to decide the
consequences (at page 372). I agree. If legislatures do not wish to
spell out in detail the contractual consequences flowing from a breach of a
statutory prohibition, and are content to impose only a penalty or
administrative sanction, then it is entirely within a court's jurisdiction to
determine, in effect, whether other sanctions should be imposed. As the
doctrine of illegality is not a creature of statute, but of judicial creation,
it is incumbent on the present judiciary to ensure that its premises accord
with contemporary values. . . .
[Emphasis
added.]
[26]
However, this approach
is not valid in Quebec, because the constituent elements of a contract of
employment and a contract for services are not defined by rules made by the
courts, but rather by statutory rules enacted by the National Assembly of
Québec and set out in the Civil Code. The provisions of that Code take
precedence over the rules that the courts in the common law provinces have made
for the purpose of distinguishing between employees and independent
contractors. The Civil Code establishes the distinctive criteria of a contract
of employment and those of a contract for services. A relationship of
subordination cannot be considered a neutral factor, because Quebec's legislature
has adopted it in the Civil Code. The courts have no choice but to apply the factor.
[27]
Consequently, in
Quebec, it is essential to determine whether such a relationship of
subordination exists, that is to say, whether the payor has a right of
direction or control over the work done by a worker. The question whether such
a right exists is necessarily a question of fact in each case, and thus, previous
court decisions are of limited help in determining whether a payor has the
right to exercise a power of control or direction in any particular case.
[28]
After comparing the
result of her analysis with the parties' accounts, the appeals officer
concluded as follows:
[TRANSLATION]
Step 3
Comparing the result of the analysis with the
parties' intention
Since the parties' intention was not common, it cannot
support the nature of the contract, and the determination as to whether there
was an employment contract between the parties must be based on the result of
the analysis.
Final conclusion
Courts have held that people who work as home care attendants did
not hold employment under an employment contract, but, rather, under a contract
for services. Based on these elements, we find that
there was a contract for services, not an employment contract, between the
payor and the worker.
This decision is based on the cases listed below in Part VII.
(VII) PRECEDENT,
LEGAL ADVICE, ETC.
Paragraph 5(1)(a)
9041-6868 Québec Inc. v. M.N.R.
(2005) A-559-04 (FCA)
Poulin v. M.N.R.
2003 FCA 50
Vienneau v. M.N.R.
2004 TCC 2631
Parifsdy [sic] v. M.N.R.
(2005 CarswellNAT 213, 2005 TCC 84)
[29]
In my opinion, the
appeals officer erred in law when she found that courts have held that home
care attendants are not employees. I know of no provision of the Civil Code
based on which it could be asserted that certain types of activities cannot be
the subject of an employment contract. The constituent elements necessary for
the existence of an employment contract are clear: provision of work, direction
or control by the payor, and remuneration.
[30]
It is strange to assert
that the work done by home care attendants, whose services closely resemble the
services that were provided to payors who were once called "masters",
by people who were once called "servants" or "domestics",
constitutes self‑employment. The economic reality of today is that only
the very wealthy can afford to hire servants as was done early in the last
century. Articles 1667 et seq. of the Civil Code of Lower Canada
(Book Third, Title Seventh, Chapter Second) deal with "the Lease and Hire
of the Personal Service of Workmen, Servants and Others ("Du louage
du service personnel des ouvriers, domestiques et autres"). In
particular, article 1668 addresses the case of a "domestic, servant,
journeyman or labourer" hired by the week, the month or the year, and of
the circumstances under which a contract for the lease and hire of personal
service could be terminated. An
analysis of the English legal treatises from the previous century discloses
that the relationship created by an employment contract was called a "master-servant
relationship".
[31]
It would be highly surprising
if the work done by domestics could now be considered self-employment,
considering that it was once the archetypal example of what constituted an
employment contract. To conclude, as did the appeals officer, that home care
services are provided under a contract for services and not an employment
contract, would be a 180-degree turnaround in the law.
[32]
In my opinion, the
question that the appeals officer had to answer is this: Did Ms. Lessard,
the true payor in the instant case, who, at the time the Appellant was hired, was
represented by her attorney under a notarial power, and who later, by orders of
the Superior Court, was represented by the administrator of her property (effective February 8,
2005) and by her curator (effective June 9, 2005), have the right to exercise
direction and/or control over Ms. Carola's work? If she did have such a
right, the appeals officer had to conclude that there was an employment
contract. Otherwise, it was open to the officer to find there was a contract
for services.
The parties' intention
[33]
Before that question is
addressed, it would be helpful to determine what the parties intended when they
negotiated the service agreement on or about November 7, 2004.
Ms. Roy revealed that when she hired Ms. Carola, she did not give any
thought to the true nature of the contract that she negotiated with her. It never crossed
her mind ask whether Ms. Carola would be considered an employee or a
self-employed worker, or, to state the question more precisely,
whether Ms. Lessard, assisted by her representatives, was to have a
right of direction or control over Ms. Carola's work. As for Ms. Carola, I
would be surprised if she thought of this at the time that she was hired.
Consequently, the parties' intention on that date is of no assistance in
defining the nature of the legal relationship that was established between Ms. Roy,
acting as mandatary under Ms. Lessard's notarial power of attorney, and
Ms. Carola.
[34]
The situation later
changed. Ms. Carola testified that she was always under the impression that she
was an employee of Ms. Roy (since Ms. Roy hired her). However, given
that Ms. Roy was acting as Ms. Lessard's mandatary, it is clear that the
contract (of employment or for services) was between Ms. Lessard and
Ms. Carola. It should also be recalled that Ms. Roy was acting
within her mandate, since she hired Ms. Carola at Ms. Lessard's
express request.
[35]
Ms. Carola's impression
that she was hired as a (salaried) employee of Ms. Roy was certainly
strengthened by the fact that source deductions were made from part of her pay.
In addition, she says that Ms. Roy described her as her employee in
conversation. It should be mentioned that Ms. Roy was retired from a
position as an assistant with Shell Canada's administrative services department.
The fact that Ms. Carola entered only the amounts corresponding to the
CLSC subsidy in her income tax returns does not have any bearing on the nature
of the amounts that Ms. Lessard paid out of her own funds.
[36]
As for Mr. Roy, he
testified that, in telephone conversations that took place after she was hired,
he told Ms. Carola that she had been hired as a self-employed worker, that no
source deductions would be made, and that she should set aside 25‑30% of
her remuneration for the income tax that she might be required to pay. Ms. Carola
denies having such a conversation with Mr. Roy; on the contrary, she claims
that he told her that all of this would be arranged at the end of the year. It is
very likely that Mr. Roy tried to explain to Ms. Carola that she was
hired as a self-employed worker, and not as an employee, but that she did
not understand the scope and meaning of the particulars that he provided
after she was hired. In fact, the appeals officer made the following finding at
page 7 of her report:
[TRANSLATION]
. . . Serge Roy told her that everything would be okay
and not to worry, but that she had to keep her gasoline receipts. I cannot
believe the employer's claim that she was 100% clear about what that meant,
even though this was not her first experience in the workforce. The fact
that she agreed to continue the employment does not mean that she accepted the
situation. Rather, she simply needed the work. . . .
[Emphasis
added.]
[37]
Even though Mr. Roy
claims that he explained very clearly to Ms. Carola the legal nature of
the oral contract that she had entered into with his sister, it is interesting that
he himself made reference to the "salaire" (salary) that
Ms. Carola was paid, because, generally, the ordinary meaning of the
word "salary" is the remuneration that an employer pays an employee.
In fact, the Civil Code uses the word "salarié" to describe a
person bound by an employment contract. When a "provider of
services" is hired, one generally refers to "fees". I am certain
that Mr. Roy bills his clients for "fees", not "salary".
[38]
Based on all these
facts, intention did not play a decisive role in characterizing the legal
nature of the contract between Ms. Carola and Ms. Lessard, because there
is no written document setting out the terms of the agreement between the
parties. Moreover, at the time that they made the agreement, the parties
never turned their minds to the nature of the contract. In other words, they
never asked themselves whether it was a contract of employment or a
contract of service. Lastly, the parties do not have the same understanding of
what their relationship was supposed to be. Consequently, in order to determine
whether or not there was a contract of employment, we must rely on an analysis
of the parties' conduct in carrying out their contract.
Relationship of subordination or right of direction or
control
[39]
The only element that
poses a problem here is the existence of a relationship of subordination; the
question is whether Ms. Lessard, represented by her mandatary Ms. Roy,
or by her son, initially as administrator of her property (February 2005)
and later as curator (commencing June 9, 2005), had a right of
direction or control over Ms. Carola's work.
[40]
A reading of Mr. Roy's
responses to the investigating eligibility officer clearly shows that he has adopted
the "classical" definition of subordination as described by
legal scholar Robert P. Gagnon in his treatise Le
droit du travail du Québec, quoted above in the excerpt from Rhéaume.
This "strict" or "classical" concept of legal subordination
is characterized by the direct control exercised by the employer over the nature
of the employee's performance of the work and the terms and conditions that
govern it. Mr. Roy completely disregards the broader concept of subordination,
which the Minister of Justice of Quebec adopted in the commentaries that he
tabled with the draft Civil Code, and which Mr. Gagnon also adopted in his
treatise, owing to the fact that [TRANSLATION] "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."
[41]
In the summary of the
eligibility officer's discussion with Mr. Roy, reproduced in her notes
(Exhibit A‑3) at page 015 of 021, she states:
[TRANSLATION]
We discussed the file again, and Mr. Roy maintained
that no one had control over the worker because there was nobody on the
premises to tell her what work was to be done every day or to tell her how to
do the work. I did try to explain to Mr. Roy that the jurisprudence refers
to the RIGHT to control, but Mr. Roy maintained his position, claiming that,
being a lawyer, he is fully aware of what a relationship of subordination
means.
[Emphasis added.]
[42]
At page 018 of 021, she
adds:
[TRANSLATION]
Details
. . .
- According to Serge Roy, the concept of control would have
required someone to see Ms. Carola every day in order to tell her what to do,
whereas Ms. Carola received only general instructions to take care of Ms.
Lessard, and nothing more.
[Emphasis added.]
[43]
A little farther on, at
page 019 of 021, she adds:
[TRANSLATION]
- As far as Mr. Roy is concerned, in order for
control to exist, there would have to be someone on the premises every morning
to tell the worker what to do and how to do it. Mr. Roy even said that
he would have had to tell her how to make meals, e.g., how to make spaghetti
sauce, and what route to take in order to get to the doctor's office. . . .
[Emphasis added.]
[44]
As the late Mr. Gagnon
wrote, the strict concept of subordination is outmoded and no longer in line
with today's reality. If Mr. Roy's theory were applied, how could
salespeople who are constantly on the road promoting and selling their
employers' products be considered employees, seeing that no one comes with them
to tell them what to do and how to do it? How could elementary and high school
English or math teachers be considered employees, given that no one checks on
the performance of their teaching duties on a daily basis? How could
salaried associates at a large law firm, who are assigned files in respect of
which they are required to achieve satisfactory results for clients without any
of the partners necessarily checking every day, every week or even every month
on the services that they provide, be considered employees? How could an
airline pilot be an employee without the pilot's immediate superior being
present while the pilot works? It was clearly not necessary for someone to be
present every day to tell Ms. Carola what to do, how to make spaghetti
sauce, and the like, given the nature of the work that she had to perform.
(A) Direct evidence
Supervision by Ms. Lessard
[45]
In any event, the
approach advocated by Mr. Roy disregards the fact that Ms. Carola's
real employer was not his sister, but his mother. She had a right of direction
or control over Ms. Carola every day. There was absolutely no evidence
that Ms. Lessard's illness was so advanced that she was unable to exercise
her power of control or direction over Ms. Carola. On the contrary, the
evidence discloses that she gave Ms. Carola instructions by telling her
what meals she wanted Ms. Carola to prepare for her, when she wanted to go
to her secondary residence in Prévost, and when she wanted assistance with
personal grooming or any other domestic tasks.
[46]
Ms. Carola gave
the eligibility officer the same description of Ms. Lessard's mental capacity
and of her right of direction or control just a few weeks after the termination
of her employment, that is to say, in September 2005.. Here is what
the officer wrote in her report (Exhibit A‑3), at page 016 of 023:
[TRANSLATION]
5. Ms. Carola explained that, despite Ms. Roy's
absence, she did what Alexandrine Lessard asked her to do, and she
specified that Ms. Lessard was able to say what it was she wanted.
Alexandrine Lessard is a very proud woman; she did her own grooming and had
some degree of independence.
[Emphasis added.]
[47]
The fact that
Ms. Lessard lived alone during Ms. Carola's two days off shows that
she was not entirely incapable of living independently and exercising a right
of control or direction over Ms. Carola's work. Mr. Roy said that he phoned
regularly to get news from his mother, notably about her outings and meals.
This suggests that it was possible to have coherent conversations with
her. In addition, Ms. Roy said that after Ms. Carola was hired, she called
her mother to find out whether everything was all right. If the answer was
yes, she did not inquire further. Such conduct on the part of the children who
were appointed Ms. Lessard's mandataries also suggests that
Ms. Lessard was quite able to look after her affairs. The fact that
the Superior Court implemented Mr. Roy's proposal to make $2,400 available
to Ms. Lessard every month for her personal needs clearly shows that
Ms. Lessard is not so incapacitated as to be unable to make decisions as
to how she spends her money, notably on clothing, beauty products, etc.
[48]
Furthermore, I draw a
negative inference from the fact that Mr. Roy never provided the appeals
officer, or the Court, for that matter, with the proof of his mother's
incapacity.
Consequently, I infer that Ms. Lessard was not completely incapable or
incapacitated during the relevant period (at least until
June 9, 2005) and that she was able to exercise her power of control
and direction over Ms. Carola's work.
[49]
Several times during
her testimony, Ms. Carola stated that Ms. Lessard gave her
instructions concerning the meals that she wanted. She preferred hamburger
steak and onions and refused to eat certain vegetables, such as broccoli, which
Ms. Roy, as part of her instructions to Ms. Carola, demanded that she
serve Ms. Lessard. Since Ms. Lessard refused to eat the dishes that
she did not like, Ms. Carola had no choice but to follow
Ms. Lessard's instructions. She also provided the following example:
during the night-time, Ms. Lessard sometimes asked her to prepare some
soup, because Ms. Carola slept in the same room as Ms. Lessard.
Ms. Lessard sometimes told her how to prepare dishes to her liking.
[50]
Another good example of
Ms. Lessard's exercise of direction or control occurred during the 2004
Christmas holidays, when Ms. Carola notified Mr. Roy that she would
have to be away because her daughter was seriously ill (she was suffering from
cancer). Mr. Roy told Ms. Carola that he insisted she remain with
Ms. Lessard because he considered it totally unimaginable that she not be
with her. However, Ms. Lessard authorized Ms. Carola to leave
her residence in order to be with her daughter.
Supervision of Ms. Carola's work by Mr. Roy
[51]
Ms. Carola also
said that she received numerous instructions from Mr. Roy.
She provided the same account of the facts to the eligibility officer in
September 2005. Here is what the officer wrote in her report (Exhibit A‑3)
at page 016 of 024:
[TRANSLATION]
6. Thereafter, she received her instructions from Serge Roy. The
duties remained the same, but, unlike his sister Nicole Roy, Mr. Roy specified
that his mother should not be deprived of outings. . . .
[Emphasis
added.]
[52]
During his testimony,
Mr. Roy tried to downplay his role of direction and control in respect of Ms. Carola's
work. I find his testimony tendentious and frequently contradictory; for
example, he said that Ms. Carola was completely free to prepare the dishes
that she wanted, without having to take Ms. Lessard's wishes and
instructions into account. I believe that his testimony was influenced by
his desire that the Court find that Ms. Carola was self-employed. There are
several other examples of this in his testimony. Here are a few of them.
[53]
Mr. Roy said that he
did not call regularly to control Ms. Carola's work, but that he did call
regularly to get news from his mother. He considered it natural to do so.
In addition, to justify what little interest he had in Ms. Carola's work,
he said that he was on guard because he did not know her from Eve or Adam. And
yet, the tenor of his conversations with the appeals officer was different,
because he said that he had to trust Ms. Carola and that this accounts for
why he did not exercise control over her work.
[54]
Mr. Roy gave another
unconvincing answer when he said that he told Ms. Carola that he expected
his mother to spend as much time as possible at her secondary residence,
where she loved spending the weekend; but, he said, it was difficult for him to
impose such an activity on Ms. Carola, and he could merely suggest it to
her. In her report, the eligibility officer duly noted the inconsistency in
Mr. Roy's account concerning this activity (Exhibit A‑4, page 006
of 021, at paragraph 6):
[TRANSLATION]
6. With respect to outings, Mr. Roy stated that he
often spoke insistently to Ms. Carola about taking his mother to the
Laurentians more often, but that Ms. Carola did as she pleased.
He said that he insisted often and forcefully and that this was very upsetting
because Mr. Carola simply did as she pleased.
Comment:
By making these statements, Mr. Roy is saying that instructions were
given to Ms. Carola.
[Emphasis added.]
[55]
In order to prove that
he exercised little control when he visited his mother, Mr. Roy said that
he had a quick look, but could not ask if Ms. Carola had done the laundry, and
that he needed to have at least some confidence in her work.
Thus, Mr. Roy acknowledges that he checked on the housekeeping when
he visited, even though he underestimates the scope of those checks. And yet,
not only did Mr. Roy have a duty, as a good son, to be concerned about his
mother's health and comfort, he also had a duty, as her mandatary, administrator
and curator, to give instructions to Ms. Carola and supervise the work
that she did. I cannot believe that Mr. Roy agreed to be remunerated by
his mother as her administrator or curator without fulfilling his obligations.
[56]
In any event, Mr. Roy
acknowledges having given instructions to Ms. Carola, including the
instruction not to use her son's services because he was manic‑depressive.
He also clearly told Ms. Carola that her son was not to accompany Ms. Lessard.
In doing these things, Mr. Roy was exercising his right of direction over Ms. Carola's
work, initially as mandatary, and then as administrator and curator.
He also exercised this right when he insisted that Ms. Carola stay in
the Beauce region and that she not return after the first day. After a lengthy
discussion with Mr. Roy, Ms. Carola complied with this instruction.
[57]
In addition, Mr. Roy's
position is certainly inconsistent, if not odd, because, by signing the ROE, he
agreed to Ms. Carola being considered an employee for the 10 hours
subsidized by the CLSC, while claiming that she was self-employed the rest of
the time. As I have stated, Ms. Carola was not an employee of the CLSC.
There was no contract between the CLSC and Ms. Carola.
Consequently, she provided her services to Ms. Lessard. It is hard to
imagine how the work subsidized by the CLSC could have been performed
under the control and direction of Ms. Lessard, but not the work that
Ms. Lessard paid for out of her own pocket.
[58]
Of course, it could be
argued that the CLSC incorrectly instructed CES to make source deductions and
to consider Ms. Carola an employee of Ms. Lessard. What is quite
difficult to understand, however, is that Mr. Roy agreed to sign the ROE
describing Ms. Lessard as the employer and Ms. Carola as her
employee.
[59]
It should be noted that
the appeals officer, who determined that the contract was a contract for
services (not a contract of employment) noted under the heading [TRANSLATION]
"Relationship of subordination" that [TRANSLATION] "[t]he only
instruction that the worker received was to notify Ms. Roy if she wanted to be
away . . ." (Emphasis added.) But the evidence adduced in
this Court certainly disclosed that the instructions given to Ms. Carola
were not solely about her notifications of absence.
[60]
The direct evidence, as
a whole, discloses not only that Mr. Roy gave Ms. Carola numerous
instructions concerning the performance of her work, but that Ms. Lessard and
Ms. Roy gave her instructions as well. The control by the children was exercised,
in part, through the numerous telephone calls that they regularly made to their
mother and Ms. Carola. If Ms. Lessard had been dissatisfied with Ms. Carola's
work, they would have been able to take the appropriate corrective measures.
(B) Indirect or circumstantial evidence
[61]
In addition to the
direct evidence discussed above, there is, in my opinion, very clear
circumstantial evidence from which it can be inferred that Ms. Lessard,
represented by her son or daughter, had the right of direction and control with
respect to Ms. Carola. Ms. Carola worked full-time for
Ms. Lessard, at her residence, from November 7, 2004, to
July 2005. She spent roughly 108 hours per week (4.5 x 24) there
with Ms. Lessard. She slept in the same room as Ms. Lessard. It is
not difficult to see this as an indicia that Ms. Lessard had the ability
to exercise her right of direction and control over Ms. Carola's work, even during Ms. Carola's
sleep time. As we have seen, Ms. Lessard sometimes asked
her to prepare some soup or other snack in the middle of the night, in
accordance with her wishes.
[62]
The work that Ms. Carola
was to perform needed to be performed by her, and by no one else, given the
wish that Ms. Lessard expressed in that regard and given the nature of the
services to be rendered, including the fact that she had to sleep in the same
room as Ms. Lessard. During those 108 hours, Ms. Carola could not
work for anyone else. It is unreasonable of Mr. Roy to assert that Ms. Carola
was free to work elsewhere. She very much deserved her two days off after
spending so many hours satisfying Ms. Lessard's domestic needs.
[63]
Under these circumstances,
it is reasonable to infer that a person who spends so many hours each week at a
payor's residence, for nine months, is subject to a right of direction and
control by the person for whom she is working. As stated above, I do not see
any major difference between Ms. Carola's "domestic help" and
the work performed by "servants" last century as employees of their "masters".
In an article in the August 21, 2008, issue of the Globe and Mail,
entitled "U.S. gavels pound FedEx business model", at page B9,
several American lawsuits concerning the distinction between employees and
independent contractors are discussed. Here is an excerpt from the article that
I consider completely appropriate in the instant case:
A California appeals court refused in August, 2007, to overturn a
$5.3-million verdict that the company misclassified the workers. "If it
looks like a duck, walks like a duck, swims like a duck and quacks like a duck,
it is a duck," the appeals court said. The California Supreme Court
refused to hear the case in November.
Furthermore, Ms. Carola did not run any business. She
did not have her own establishment where she welcomed people to whom she could
provide domestic care. She had no clients other than Ms. Lessard.
[64]
I conclude, without
hesitation, that the evidence has disclosed not only that Ms. Lessard,
represented or assisted by her son or daughter, could exercise a right of
control and direction over Ms. Carola's work, but that this right was
abundantly exercised as well. Consequently, since there was a relationship of
subordination between Ms. Carola and Ms. Lessard, a contract for
services, under article 2099 of the Civil Code, cannot have existed. Ms. Carola
had a contract of employment with Ms. Lessard and held insurable
employment with her during the relevant period.
[65]
For all these reasons,
Ms. Carola's appeal is allowed. The Minister's decision is varied. Ms. Carola
was employed in insurable employment during the relevant period.
Signed at Québec,
Canada, this 10th day of October 2008.
"Pierre Archambault"
Translation
certified true
on this 10th day
of December 2008.
Brian McCordick,
Translator
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