[OFFICIAL ENGLISH
TRANSLATION]
|
Reference: 2004TCC55
|
|
Date: 20040115
|
|
Docket: 2003-1081(EI)
|
|
BETWEEN:
|
|
COMITÉ DES PERSONNES ASSISTÉES
SOCIALES DE POINTE ST-CHARLES,
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent,
|
|
and
|
|
|
|
MICHEL TOURIGNY,
|
|
Intervener.
|
REASONS FOR JUDGMENT
Lamarre
Proulx J.
[1] The
Appellant is appealing the decision of the Minister of National Revenue (the "Minister") dated December 18, 2002, stating that for the period from August
26, 2001, to June 2, 2002, Michel Tourigny had insurable
employment with the Appellant.
[2] The
facts on which the Minister relied in making the decision are described in
paragraph 9 of the Response to the Notice of Appeal (the “Response”) as
follows:
[translation]
(a) The Appellant
is a non-profit organization that helps people on social assistance in Pointe
St‑Charles.
(b) During the
period at issue, the Worker provided services to the Appellant while still
receiving social assistance.
(c) The Worker’s
main tasks were as follows:
— keeping the
books,
— preparing the
payroll for the Appellant’s employees,
— answering the
telephone,
— researching
grants, and
— coordinating
the activities of the Appellant’s committee.
(d) The Worker
worked in the office of the Appellant.
(e) The Appellant
provided all the equipment and supplies needed for the Worker to do his job.
(f) The Worker
worked from Monday to Thursday, from 10 a.m. to 4:30 p.m., a total of
20 hours per week.
(g) The Worker
received a fixed amount of $50 per week from the Appellant for his services.
(h) The Appellant
considered the $50 paid to the Worker as reimbursement of the costs incurred by
the Worker.
(i) During the
period at issue, the Worker worked 800 hours for the Appellant, or 40 weeks
of 20 hours.
(j) During the
period at issue, the Worker received from the Appellant $2,000, for
40 weeks at $50.
[3] The
Notice of Appeal states the following:
[translation]
The C.P.A.S. is a non-profit,
purely charitable organization that promotes having as many members as possible
take responsibility for the organization to help people on social assistance
develop independence and initiative so that they can actively participate in
the life of their community.
Thus, we are challenging the
insurability of the reimbursement of the Michel Tourigny’s volunteer costs
for the period from August 26, 2001, to June 2, 2002, on the grounds that
we cannot conceive that Michel Tourigny’s hours of volunteer work could be
considered insurable earnings.
[4] I
do not think it would be useful to reproduce the Notice of Intervention dated
May 1, 2003, because it contains accusations against the administrators of the
Appellant rather than a statement of the terms and conditions of hiring the
Intervener and the description of his duties.
[5] In
many of the documents and during the hearing, the Appellant was referred to by
the acronym C.P.A.S.
[6] Françoise Beauchamp,
Chair of the Board of Directors of the Appellant since 2000, testified. She
explained that the Appellant was a non-profit organization that informed people
on social assistance of their rights and taught them to assert those rights.
The organization tries to help people on social assistance escape their
isolation. In this respect it invites them to information sessions and also has
them participate in projects.
[7] It
is an organization that operates through volunteers, although it also has
employees, rarely more than two of them. The number of volunteers working in
the organization varies. Some volunteers are more involved than others. The
purpose of using people on social assistance is to promote their social
reintegration and give them self-confidence. The Appellant gives its volunteers
some compensation, which is considered to be reimbursement for meals, bus
tickets and clothing.
[8] She
produced in a bundle as Exhibit A‑1 documents regarding
Mr. Tourigny’s work. The first document is the minutes of a special
meeting of the Board of Directors held on November 16, 2000, regarding the
secretary’s position. Given that the employee who was the secretary ended her
contract on November 9, 2000, because of illness, it was suggested that the
C.P.A.S. sign a service agreement with Michel Tourigny to carry out
administrative support duties and that the agreement would begin on November
20, 2000, for a set period of six consecutive months, at 20 hours per week
and an honorarium of $50 per week.
[9] Ms. Beauchamp
explained that it was clear in everyone’s mind that this was not an employment
contract. A person who volunteers chooses his or her duties and hours. In an
employment contract the pay is higher and the working conditions are different
with respect to the hours of work. She said that a minimum wage rate was
suggested to Mr. Tourigny but he refused because he did not see how that was in
his interests or those of the Appellant. He wanted to find work at an hourly
rate higher than minimum wage. Mr. Tourigny became a paid employee in June
2002. He was paid $12 or $13 an hour for 30- to 35-hour workweeks.
Unfortunately this paid employment only lasted three months. Ms. Beauchamp
explained that every three months there is an evaluation of the employees’ work
and this evaluation marked the end of Mr. Tourigny’s employment.
[10] Exhibit A-1 includes a document dated October 30, 2001, that is a
signed agreement between Yvan Courtois and Ms. Beauchamp. According to
Ms. Beauchamp, Mr. Courtois was in a similar situation to that of
Mr. Tourigny. This agreement, which sets out the parties’ intentions,
reads as follows:
[translation]
Service agreement between Yvan
Courtois and the C.P.A.S. that began on January 11 ended on October 30, 2001.
This agreement was not an
employment contract. Rather a monthly lump sum was given to him at his request
to cover part of his expenses and needs, which allowed him to do his volunteer
work.
It was clear that this agreement
did not represent the hiring of an employee and the parties’ intent was to help
out Yvan Courtois without adding further responsibilities to the organization
since its financial situation did not allow it to offer other types of
agreements.
Yvan Courtois received his last
cheque under the service agreement in October 2001.
[11] In cross-examination, counsel for the Intervener noted that the term
“volunteer” is never used in the agreements, rather that service agreements and
schedules are mentioned. Ms. Beauchamp said that the agreements were intended
to integrate people on social assistance into the world of work, hence the
terms used. However, in her opinion, both parties to the agreement were fully
aware that that it was not an employment contract. She also mentioned that some
of the duties of the former secretary were not continued by Mr. Tourigny.
[12] Mr. Tourigny said that it was false that he wanted to sign a
volunteer agreement. In his opinion, it was an employment contract. Afterwards,
while carrying out the same duties, he was paid $13.34 an hour for a total of
$400.20 per week for 30 hours of work, from June 30, 2002, to September 12,
2002. He does not understand why his employment contract was not renewed since
he did the same things he had done for over a year prior.
[13] The Intervener produced as Exhibit INT‑3 cheque stubs
indicating source deductions for employment insurance at a rate of $1.20 for
every $50 payment. The total pay was $48.80. When asked about this, Ms.
Beauchamp said that she believes that she signed the cheques for $48.80 but
that she thought that amount was needed to avoid exceeding $200 per month,
since there are 52 weeks in a year. She never authorized the deduction of
employment insurance premiums.
[14] T4s were also issued by the Appellant to Michel Tourigny
indicating employment income of $300 for 2000 and $2,600 for 2001.
Mr. Tourigny was responsible for the accounting.
[15] Mr. Tourigny has filed a claim with the Commission des normes du
travail for payment of minimum wage for the period at issue.
[16] Ms. Thuyen Ngo, a socio‑economic support officer at the
Ministère de l'emploi et de la solidarité sociale, testified on behalf of the
Intervener. She explained that adults receive $533 per month in social
assistance. They can earn up to $200 per month without the payment being
reduced. The Appellant paid him that amount. This claim for minimum wage will
soon be heard in the Court of Quebec.
Arguments
[17] Counsel for the Appellant states that it was necessary to determine the
nature of the agreement between the parties. Was it an employment contract or a
volunteer agreement? The nature of the agreement will be determined from the
credibility of the witnesses and the facts. Counsel notes that compensation is
an essential component of an employment contract. This compensation reveals the
nature of the agreement between the parties.
[18] Counsel for the Intervener states that the Intervener agreed to be paid
$50 per week, but that it was not a volunteer agreement but an employment
contract. The Appellant wanted part of the wages to be paid by social
assistance. This contravenes the Minimum Wage Act.
[19] Counsel for the Respondent states that there is no solid evidence that
it is a volunteer agreement. The term was not used in any agreement or
resolution of the Board of Directors.
Conclusion
[20] This case involves a non-profit organization that, with a view to
social reintegration, offers volunteer work to people on social assistance and
provides them with a certain amount as compensation for the costs of working.
In a social context, it would be dangerous to turn volunteer work agreements
into employment contracts unless that is what they really are. The budgets of
these organizations are precarious, always at the discretion of the governments
or organizations that fund them.
[21] The conditions of volunteer work are known by those who accept to be
volunteers. Normally, volunteer working conditions, including its supervision,
are not the same as those of a paid employee. Nevertheless, volunteers must
accept the specific conditions of the organization they offer to help.
Volunteers must be reliable and do the work they offered to do; otherwise, they
are not useful to the organization they are volunteering with. At times,
volunteers may put more energy into their work than paid employees.
[22] To understand the true nature of an agreement, it is important to refer
to the common intent. Here it is not clear at first glance. Mr. Tourigny
made the deduction required by law on the $50 payments he received each week,
as if it were wages. This indicates that he wanted to be considered an
employee. Moreover, the Chair of the Appellant mentioned that she was not aware
of these deductions and that she had not authorized them, as the Appellant
never intended to create an employment contract.
[23] Did the evidence show that Mr. Tourigny was aware of the volunteer
working conditions? He kept the books for the Appellant and was aware of the
Appellant’s financial situation. He was fully aware that at the Appellant a
volunteer agreement could not be an employment contract. He knew that the
Appellant operated with the help of volunteers and that these agreements set
out a description of duties, hours and a small compensation for the costs
incurred by someone working outside the home.
[24] I am of the opinion that, under the circumstances of the instant case,
the Intervener knew that the agreement between him and the Appellant involved
the work of a volunteer and not a paid employee and that the common intent of
the parties was to establish a volunteer agreement and not an employment
contract.
[25] Like the Intervener, many people work as volunteer with the purpose of
then finding paid employment, either with the same organization or a similar
organization. Mr. Tourigny found a better paying job with the same
organization. Unfortunately this job was terminated three months later, following
a quarterly evaluation. This is doubtless regrettable. However, you cannot,
based on this event, change the legal nature of the previous agreement as trust
is the foundation of legal relationships between social organizations and their
volunteers.
[26] The appeal is allowed and the intervention dismissed.
Signed at Ottawa, Canada, this 15th day of
January 2004.
Lamarre
Proulx J.
Certified true
translation
Manon Boucher
Email this Content