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Citation: 2005TCC372
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Date: 20050606
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Docket: 2004-3785(EI)
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BETWEEN:
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IVANN ALEXANDRE BERGERON,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
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REASONS FOR JUDGMENT
Lamarre
Proulx J.
[1] This
is an appeal from a decision of the Minister of National Revenue ("the Minister")
dated June 3, 2004.
[2] According
to the decision, the Appellant was not employed in insurable employment while
serving on the municipal council of the Municipalité de St‑Faustin‑Lac‑Carré
from September 23, 2001, to September 21, 2002, and from
September 29, 2002, to March 29, 2003.
[3] The
relevant explanatory paragraphs read as follows:
[TRANSLATION]
It has been determined that your
employment was not insurable for the following reason: You were not employed
under a contract of service, and consequently, you were not an employee of the
Municipalité de Saint‑Faustin‑Lac‑Carré.
While the position of municipal
councillor is an office under subsection 2(1) of the Canada Pension Plan,
that office is not included in insurable employment under paragraph 6(f)
of the Employment Insurance Regulations.
This decision was made under
subsection 93(3) of the Employment Insurance Act and is based on
paragraph 5(1)(a) of the Employment Insurance Act and paragraph
6(f) of the Employment Insurance Regulations.
. . .
[4] The
Reply to the Notice of Appeal describes the facts of this case as follows:
[TRANSLATION]
7. In making his
decision, the Minister, relying on the following assumptions of fact,
determined that the Appellant held an office within the meaning of subsection
2(1) of the Canada Pension Plan that was not included in insurable
employment:
(a) the Appellant
was elected by popular vote as a municipal councillor of the Municipalité de
Saint‑Faustin‑Lac‑Carré for the period of November 1999 to
November 2003;
(b) the
Appellant's duties as municipal councillor were to participate in public
meetings of the municipality and be available to meet with residents;
(c) during the
periods in issue, the Appellant received a $500 monthly allowance for his
office as municipal councillor;
(d) during the
periods in issue, the Appellant had no duties for the municipality other than
those of a municipal councillor;
[5] The
Appellant has admitted to all these facts.
[6] Article
2085 of the Civil Code of Québec defines a contract of employment as
follows:
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.
[7] Section
2 of the Act respecting elections and referendums in municipalities,
R.S.Q., c. E-2.2, provides that an election shall be held every four years for
all the offices on the council of a municipality. Section 2 of the Act
respecting the remuneration of elected municipal officers, R.S.Q., c.
T-11.001, provides that the council of a municipality may, by by-law, fix the
remuneration of its mayor or warden and of its other members. A section of the
same statute provides for the minimum annual remuneration that a councillor
must be paid.
[8] The
Appellant explained that his remuneration was indeed based on a municipal
by-law, that the mayor could not dismiss him, that he did not receive
instructions from anyone except perhaps the opinions of his voters, that he had
no office in the municipality's premises, etc. In fact, during the hearing, it
was not possible to determine which employer could have had control over his
work and what control that would have been.
[9] The
duties of a municipal councillor are not the duties of a contract of
employment. That is not a difficult finding to make. However, such duties are
undoubtedly the duties of an office. We must therefore refer to section 6 of
the Employment Insurance Regulations, which broadens the category of
insurable employment. Only subparagraph (f)(iii) of that section could
possibly apply here. It reads as follows:
(f) employment of
a person who holds an office, as defined in subsection 2(1) of the Canada
Pension Plan,
. . .
(iii) where the person holds the office in or
under a corporation, commission or other body that is an agent of Her Majesty
in right of a province referred to in subparagraph (ii) . . .
[10] The definition of "office" in section 2 of the Canada Pension
Plan reads as follows:
"office" means the
position of an individual entitling him to a fixed or ascertainable stipend or
remuneration and includes a judicial office, the office of a minister of the
Crown, the office of a lieutenant governor, the office of a member of the
Senate or House of Commons, a member of a legislative assembly or a member of a
legislative or executive council and any other office the incumbent of which is
elected by popular vote or is elected or appointed in a representative capacity,
and also includes the position of a corporation director, and
"officer" means a person holding such an office;
[11] The Respondent admits that a municipal councillor is an office holder.
[12] The municipality was created under the Act respecting municipal
territorial organization, R.S.Q., c. O‑9. Section 13 of that Act
states that "a local municipality is a legal person of public right
consisting of the inhabitants and ratepayers of the territory under its
jurisdiction." I would also refer to articles 298 to 300 of the Civil Code
of Québec, which deal with the creation and types of legal persons.
The fact that the municipality is a legal person is not in issue either.
[13] The issue is whether the Municipalité de St-Faustin-Lac-Carré, a legal
person, is an agent of Her Majesty in right of Quebec for the purpose of
section 6 of the Regulations.
[14] The proper meaning of "agent of the Crown" was recently
explained in Nova Scotia Power Inc. v. Canada, [2004] 3 S.C.R. 53.
I quote from the relevant portions of paragraphs 12 and 13:
12 There are two ways in
which an entity can become an agent of the Crown. The first is when the Crown
exercises sufficient control over it so that it can be said to be in de jure
control, which requires a careful examination of the relationship between the
parties: see R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R.
551, at pp. 573-74. . . .
13 The second way is for the legislature to
expressly legislate it to be an agent: Eldorado Nuclear, supra,
at pp. 575-76. . . .
[15] The Order in Council creating the municipality was produced at tab 1
of the Respondent's book of authorities. The instrument, Order in Council
1612-95 of December 13, 1995, contains no specific designation of a
Crown agent. Section 3 of the Order in Council stipulates that the
new municipality is governed by the Municipal Code of Québec, R.S.Q.,
c. C‑27.1. I have seen nothing in that statute that provides that
municipalities are agents of the Crown, nor has anyone pointed me to such a
provision.
[16] With respect to de jure control of a municipality by the Crown,
referred to in the first point of the Supreme Court of Canada decision quoted
above, I know of no decision in which it was held that de jure control
over the management of municipal affairs existed.
[17] It should also be noted that in Madeline Faiazza v. M.N.R.,
docket 83‑671(UI), dated September 5, 1985, this Court held that the
mayor of a municipality was not employed in insurable employment.
[18] Consequently, the appeal is dismissed.
Signed at
Montréal, Quebec, this 6th day of June 2005.
Lamarre
Proulx J.
Translation certified true
on this 3rd day of October 2006.
Monica F. Chamberlain, Reviser
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