Citation: 2006TCC182
Date: 20060320
Dockets: 2005-3107(EI)
2005-3108(EI)
BETWEEN:
ASSOCIATION CHASSE ET PÊCHE DE LA DÉSERT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre J.
[1] The issue before
the Court is whether Alain Prud'homme and his spouse Angèle Constantineau
(the "Workers") held insurable employment within the meaning of
paragraph 5(1)(a) of the Employment Insurance Act ("EIA"),
while working for the Appellant during the period of May 10 to November 14,
2004.
[2] The Appellant
claims that the Workers did not hold insurable employment during this period.
[3] The Appellant is a
non-profit corporation that operates a zone d'exploitation contrôlée ("ZEC")
[controlled harvesting zone] in the La Vérendrye Wildlife Refuge in the
province of Quebec. It is managed by volunteers. Each person who enters the ZEC
must register at one of the two welcome stations, one of which is at the north
of the ZEC (La Tortue post) and the other at the south (Tomassine post).
[4] When registering,
users indicate the duration of their stay and the type of activity they will
engage in (fishing, hunting, camping or swimming), and pay an entry fee
according to the type of activity chosen and the duration of the stay. It is
possible to become a member of the ZEC at the beginning of the season, which
runs from May to November. When the season opens, people can purchase their
membership card. At that time of the year, the Appellant can collect between
$20,000 and $30,000 in membership fees.
[5] The Appellant hires
attendants for the two welcome stations. In the case at bar, the Workers were
hired for the Tomassine welcome station during the 2004 season. During the 20
preceding seasons, the Appellant had hired a couple, the Comtois, to take care
of this welcome station. They lived in a trailer they owned, and were hired as
the Appellant's employees. Since the Comtois were retiring, the Appellant's
board of directors decided to issue a call for tenders and hire newcomers on a
contractual basis. For one, the board members felt it was too expensive to have
employees, and for another, they were all busy with their own work, and did not
have much time to spend managing employees. It must be noted, however, that the
person hired at the "La Tortue" post was still considered an
employee.
[6] Further to the call
for tenders in the regional paper, the Appellant received five submissions. The
Appellant chose Mr. Prud'homme, who offered $31,500 for his services from May
10, 2004, to November 14, 2004 (Exhibit A-4). It must be noted that Mr.
Prud'homme knew the Comtois—who had worked at the position for 20 years—very
well.
[7] Following an
interview that was held in March 2004, with Mr. Prud'homme, his spouse Ms.
Constantineau, and Jocelyne Lyrette, the Appellant's representative, a contract
was signed on May 10, 2004 (Exhibit A-6). The evidence shows that since the
contract was signed on the first day of work and there were many people on
site, with the big crowd, only Mr. Prud'homme signed the contract. An
amendment was signed, however, on July 9, 2004, to include Ms. Constantineau in
the contract (Exhibit A-7). Since only Mr. Prud'homme was paid before the
contract was amended, the Appellant proceeded to rectify the situation by only
paying Ms. Constantineau for a period equal to that which had passed before the
amendment, and then paid the Workers equally. At the hearing, the question was
raised as to whether the Appellant was tied by contract to Ms. Constantineau
during the entire period. Given the facts mentioned above, I consider that the
Appellant agreed to sign a contract with both Workers for the entire period in
question.
[8] In this contract,
the Workers agreed to live in the furnished building the Appellant rented from
the Société des Établissements de Plein Air du Québec ("SEPAQ"),
located at the Tomssine entrance. The Workers did not pay anything to stay
there, the Appellant paid all the related costs including general liability
insurance in the amount of $2,000,000.
[9] The workers agreed
to keep the welcome station open from 7:00 a.m. to 10:00 p.m., seven days a
week. They were also to be available if someone arrived at night. On those
occasions, they could charge an extra $3 in addition to the basic price. The
Workers kept this $3 for themselves. Their duties were to greet guests, fill in
the forms required by the Government of Quebec that were provided by the
Appellant, collect the entrance fees, give information on the 500 lakes and 110
campgrounds that were in the refuge, which has a surface area of 1,205 km2.
They were to respond at all times on the FM telecommunications post ("FM
post") that was installed in their dwelling and that was used by the
refuge's game wardens or by the wildlife officer hired by the Appellant. The
Workers also weighed the fish and registered the results on the appropriate
sheet, which they gave to the Appellant. They also entered data on hunting and
fishing on a computer provided by the Société de la faune et des parcs du
Québec (FAPAQ).
[10] The Workers received
a four-day training from the Comtois at the beginning of the season. The also
said that the Comtois came to help them during the following two weekends.
During the four-day training, it was admitted that the Appellant paid the
Comtois. During the two other weekends, the Workers say the Appellant paid them
whereas the Appellant says it did not pay them. It was admitted that when the
Workers took a weekend off, they asked the Comtois to replace them and they
organized the Comtois' compensation amongst themselves. Mr. Prud'homme said he
gave them $50 for their travel and provided them with food.
[11] According to the
contract, replacements were to be approved by the Appellant. In fact, the
Comtois understood the operations at the welcome station very well and the
Appellant did not object to their replacing the Workers.
[12] The Appellant was
insured against theft up to $5,000 for the money in the cash register. (In the
amendment to the contract (Exhibit A-7), clause 12.0 of the initial
contract (Exhibit A-6) that required the Workers themselves to take out theft
insurance was removed). The Workers could not keep more than $200 in the cash
register till, and no more than $5,000 in the safe provided by the Appellant.
Mr. Prud'homme was to go to the Appellant's office once a week to hand in the
forms or registration booklets filled in by the clients, and the money
collected during the week. The Appellant's secretary verified whether the
registration fees on the forms corresponded to the money Mr. Prud'homme handed
in. Mr. Prud'homme and his spouse were responsible for the difference between
the money registered on the forms and actual amount given, if there were any
discrepancies.
[13] The wildlife
protection officer who worked for the Appellant went to the welcome station at
least two or three times a week, at any time, without necessarily any warning.
This wildlife protection officer's duties included monitoring that each visitor
to the ZEC was registered properly. He could communicate with the Workers at
any time using the FM post to advise them of any problems in the zone. The FM
post was to be on and the Workers were to respond at all times between 7:00
a.m. and 10:00 p.m. Moreover, Jocelyne Lyrette herself went by the
Tomassine welcome station every weekend, to take advantage of the outdoor
activities in the ZEC.
[14] The Workers also
operated a small convenience store where they sold various products (such as
soft drinks, snacks, bait) to the visitors. They got the Appellant's approval
to operate this small store and the meagre profits went to the Workers.
[15] Moreover, the
Workers housed two of the Appellant's employees during the period in question.
The representatives of the Appellant, Jocelyne and Victor Lyrette, both
said they learned of this only later. The Workers said that they housed these
two employees at Mr. Lyrette's request. One of them was already there when they
arrived. They collected $5 a day from each of these two boarders, and the Workers
kept the money for themselves.
[16] The issue in this
case is whether the Workers were the Appellant's employees or independent
workers. As Décary J. stated in 9041-6868 Québec Inc. v. Canada, [2005]
F.C.J. No. 1720 (QL), there are three characteristic constituent elements of a
"contract of employment" in Quebec law: the performance of work,
remuneration and a relationship of subordination. At paragraph 12 of this decision,
Décary J. stated:
¶ 12 It is
worth noting that in Quebec civil law, the definition of a contract of
employment itself stresses "direction or control" (art. 2085
C.C.Q.), which makes control the actual purpose of the exercise and therefore
much more than a mere indicator of organization.
[17] In paragraph 11 of
the decision, Décary J. referred to what Robert P. Gagnon stated in Le droit
du travail du Québec, Éditions Yvon Blais, 2003, 5th edition, at pages
66 and 67, where the relationship of subordination concept is explained at
paragraph 92:
... 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.
[18] In this case, the
relationship of subordination carried out by the Appellant on the Workers
genuinely exists. The two Workers were to ensure a continuous presence at the
welcome station, which was monitored sporadically but regularly by either the
wildlife protection agent who could appear on site at any time, or the
Appellant's representatives, Jocelyne and Victor Lyrette, who went
regularly to go camping and could therefore ensure the Workers' presence during
working hours. Ms. Lyrette even assisted the Workers during the opening at the
beginning of the season, considering the large amounts of money coming in at
that time. Moreover, another type of control existed with the FM post, which
the Workers were to answer at all times. The FM post allows for communications
inside the ZEC between employees or the Appellant's representatives and the
Workers.
[19] In addition, paragraph 14.0 of the contract (Exhibit
A-6) states:
[translation]
Monitoring
A representative of the Association's
board [the Appellant] shall go to the site of the welcome station every two
weeks for the duration of operations, for the purpose of verifying the
logbooks, inventories and amounts of money kept by the operator for the Association.
[20] Moreover, the work
assigned to the Workers required them to meticulously follow certain strict
rules. Each visitor was to complete a prescribed form provided by the
Appellant, which the Workers had in their possession. The Workers collected the
entry fees set by the Appellant and handed in the amounts collected to the
Appellant's office once a week. These amounts were verified by the Appellant's
secretary with the forms completed by each visitor. Additionally, if the
Workers wanted to be replaced, clause 9.0 of the employment contract (Exhibit A‑6)
clearly states that the Workers must advise the Appellant's management of the
name of their replacement and the duration of their absence. This absence was
to be justified, limited and of short duration. In the case at bar, it was the
Comtois, who had worked for the Appellant for 20 years, who replaced the
Workers. It appears that this was approved by the Appellant. Moreover, on one
occasion, the Workers had to be replaced when the Comtois were apparently not
available, when Mr. Prud'homme's brother passed away, and it was the Appellant
that found and paid the replacements for the day of the funeral service.
[21] Finally, the
Appellant provided the building and all the work instruments. The Appellant
paid for the telephone, electricity and heating and provided accommodations
free of charge. The Appellant also had civil liability insurance on this
building. It also had theft insurance for up to $5,000. The Workers were to
ensure that the money was brought to the Appellant's office before this limit
was reached. I agree with counsel for the Respondent that the nature of the
work required by the Workers required some type of control. In fact, it is hard
to imagine workers, keeping large amounts of money for the person who hired
them, would not be subject to that person's control.
[22] In my opinion,
although the Appellant proceeded through a call for tenders, it is clear that
the Workers did the same work and were treated in the same way as all the other
employees who had held this position before, and those who worked at the ZEC's
other welcome station (La Tortue). Considering the degree of control and
direction exercised by the Appellant on the Workers, I consider that the
Appellant exercised a significant relationship of subordination over the two
Workers, who had almost no latitude or flexibility in their work. Other than
the $50 and food the Workers provided for the Comtois when they replaced them,
and the fact that they were responsible for paying any discrepancies between
the amounts collected and the amounts given to the Appellant, the Appellant
could be considered completely in charge of the Workers. The fact that the
Workers arranged for the Comtois to replace them themselves (there were a few contradictions
in the evidence as to who had paid the Comtois during the first two weekends in
May) and that they could be required to reimburse any missing amounts
(something that never actually occurred) does not, in my opinion, change the
nature of the employment contract that, in reality, was concluded between the
parties. In fact, the evidence showed that the Workers did not apply as
contract workers to fill a position they knew only very little about. From
their testimony, it appears they were seeking employment and this was why the
responded to the call for tenders.
[23] I therefore find
that the Workers were governed by a contract for employment and that their
employment was insurable.
[24] The appeals are
dismissed.
Signed at Ottawa, Canada, this 20th day of March 2006.
"Lucie Lamarre"
Translation
certified true
on this 23rd day
of June 2006.
Elizabeth Tan,
Translator
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