Docket: 2004-1419(EI)
2004-1420(CPP)
BETWEEN:
JANICE HACKETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeals heard on
November 25, 2004, at St. John's, Newfoundland,
By: The Honourable Justice E.A.
Bowie
Appearances:
|
Counsel for the
Appellant:
|
Jeffrey Slade
|
|
Counsel for the Respondent:
|
Steven Leckie
|
____________________________________________________________________
JUDGMENT
The appeals pursuant to subsection 103(1) of the Employment
Insurance Act and section 28 of the Canada Pension Plan are
dismissed and the decision of the Minister of National Revenue on the appeal
made to him under section 91 of the Act and the determination of the
Minister on the application made to him under section 27.1 of the Plan are
varied on the basis that the Appellant was not employed in insurable employment
by Melvyn Hickey for the period May 28, 2002 to June 21, 2002 within the
meaning of paragraphs 5(1)(a) of the Act and 6(1)(a)
of the Plan.
Signed
at Ottawa, Canada, this 30th day of March, 2005.
“E.A. Bowie”
Citation: 2005TCC208
Date: 20050330
Docket: 2004-1419(EI)
2004-1420(CPP)
BETWEEN:
JANICE HACKETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowie J.
[1] The Appellant fished with Mr. Melvin Hickey during the
period from May 28, 2002 to June 21, 2002. The question that arises in
these appeals is whether, in doing so, she was self-employed or employed by Mr.
Hickey under a contract of service. The significance of this distinction is
that if she was self‑employed then she falls within the definition of a
fisher found in section 1 of the Employment Insurance (Fishing) Regulations,
and so she is entitled to the more generous benefits that they provide. Another
result of finding her to be self‑employed is that she would then not have
been engaged in pensionable employment under the Canada Pension Plan (the Plan). The rulings made
under the Employment Insurance Act
(the Act) and the Plan were to the effect that Ms. Hackett was
employed by Mr. Hickey under a contract of service, and these rulings were
confirmed on appeal to the Minister under section 91 of the Act and
section 27 of the Plan.
[2] The definitions of "fisher" in the Regulations and of
"employment" in the Plan read as follows:
1(1) The definitions in
this subsection apply in these Regulations.
“fisher” means a self-employed person
engaged in fishing and includes a person engaged, other than under a contract
of service or for their own or another person’s sport,
(a) in making a
catch;
(b) in
any work incidental to making or handling a catch, whether the work consists of
loading, unloading, transporting or curing the catch made by the crew of which
the person is a member, or of preparing, repairing, dismantling or laying-up
the fishing vessel or fishing gear used by that crew in making or handling the
catch, where the person engaged in any such incidental work is also engaged in
making the catch; or
(c) in the
construction of a fishing vessel for their own use or for the use of a crew of
which the person is a member in making a catch.
2(1) In this Act,
“employment” means the
performance of services under an expressed or implied contract of service or
apprenticeship, and includes the tenure of an office.
These definitions require the application of the common law
test most recently approved by the Supreme Court of Canada in 671122 Ontario
Ltd. v. Sagaz Industries Inc. to
the facts of the case.
[3] Melvin Hickey owns his own fishing vessel. He, the Appellant and two other
individuals fished for crab during the period in question. They took several
trips, sometimes spending the night at sea, and sometimes docking at Fortune Harbour and sleeping aboard the
vessel. They each took turns performing various tasks such as baiting the crab
pots, cleaning the decks, cooking, and so on. Although it was not entirely
clear in the evidence, it seems likely that the actual sailing of the vessel
was done by Mr. Hickey himself, and as the owner and master of the vessel, I
have no doubt that he was in a position to direct the other persons aboard as
to their duties. The members of the crew were paid a percentage of the catch.
The Appellant's share on this occasion was 17½%. The Appellant testified that
when she went aboard the vessel she took with her some gasoline for the
generator and some food, both of which she acquired ashore and paid for. She
described the groceries that she took aboard as being a few things that were on
sale. Several receipts for purchases that she made were entered into evidence,
from which it appeared that she made two purchases of gasoline at a total cost
of $50.00, two purchases of food and snacks at a total cost of $47.00, and she
purchased personal gear consisting of rubber suit, gloves and boots at a cost
of $259.97.
[4] Mr. Hickey, as I have said, owned the boat. He also owned the gear and the
fishing quota that permitted him and his crew to fish, and he paid all the
expenses other than small amounts of food and gasoline. There was no suggestion
in the evidence that the Appellant contributed in any way to the major expenses
that the ownership and operation of a fishing boat entail. I refer to such
expenses as the annual outlays for insurance, maintenance and repairs, and the
running expenses such as diesel fuel and bait and salt required for each trip,
to name but a few. Even the small amounts of food that the Appellant bought
were negligible in comparison to the amount that one person would consume
during the period with which the appeals are concerned.
[5] I turn now to the Sagaz test. I do not think that control should be
considered a major factor in cases like this. Of necessity the captain of a
vessel has control over the crew in the sense that he must have the right to
direct the other members of the crew not only in what they do but also in how
they do it. The safety of the vessel and the crew require that. The fact that
the captain commands the vessel does not negative the possibility that the
other members of the crew share with him as entrepreneurs in the venture. Of
more significance is the degree to which the Appellant had the opportunity to
gain a profit or suffer loss in the venture. The fact that she was paid a share
of the catch militates in favour of finding her to be a self-employed person.
However, she had no real risk of suffering an operating loss. She had her time
and about $100 worth of supplies to lose if they landed no catch at all. The
major expenses were all borne by Mr. Hickey. Similarly, the capital investment
in equipment was Mr. Hickey's. The Appellant spent some $260 to equip
herself for the trip, but it was entirely for protective clothing for herself.
[6] It is not entirely irrelevant to consider the degree to which the
Appellant's efforts were integrated into the business of Mr. Hickey as a
fisher, but this must be considered from the worker's point of view if it is
not to be misleading. The Appellant's efforts were entirely integrated with
those of Mr. Hickey, in my opinion. I heard no evidence to suggest that on
other occasions she did similar work for others, or that she held herself out
as available to do so. There is nothing in the evidence that points towards a
conclusion that Ms. Hackett's efforts were in any way entrepreneurial; no one
aware of the facts of this case would consider her to be a business person
rather than a labourer, albeit one whose pay depended on the success of the
voyage.
[7] I conclude that Mr. Hickey employed Ms. Hackett under a contract of
service during the period in question. The appeals are therefore dismissed.
Signed
at Ottawa, Canada, this 30th day of March, 2005.
“E.A. Bowie”
CITATION: 2005TCC208
COURT FILE NO.: 2004-1419(EI) and 2004-1420(CPP)
STYLE OF CAUSE: JANICE HACKETT &
HER
MAJESTY THE QUEEN
PLACE OF HEARING: St. John's, Newfoundland
DATE OF HEARING: November 25, 2004
REASONS FOR JUDGEMENT BY: The Honourable Justice E.A. Bowie
DATE OF JUDGMENT: March 30, 2005
APPEARANCES:
|
Counsel
for the Appellant:
|
Jeffrey
Slade
|
|
Counsel
for the Respondent:
|
Steven
Leckie
|
COUNSEL OF RECORD:
For the Appellant:
Name: Donald A. MacBeath
Firm: N/A
For the Respondent: John
H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Ontario
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