[OFFICIAL ENGLISH TRANSLATION]
|
Citation: 2004TCC54
|
|
Date: 20040114
|
|
Dockets: 2002-1538(EI)
2003-2338(EI)
|
|
BETWEEN:
|
|
LES CONSULTANTS CLIC INC.
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent,
|
|
and
|
|
|
|
JOHANNE LELIÈVRE,
|
|
Intervener.
|
|
|
|
Docket: 2003-2336(EI)
|
|
BETWEEN:
|
|
LE RÉSEAU CLIC INC.
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
REASONS FOR JUDGMENT
The Honourable Judge Lamarre Proulx,
[1] These appeals were heard on common
evidence. The appeal numbered 2002-1538(EI) concerns the decision
of the Minister of National Revenue (the "Minister")
dated January 25, 2002. The worker in question is Ms. Cara Webb,
the period at issue is from January 1, 2000 to July 26, 2001, and
the appellant party is Les Consultants CLIC Inc.
[2] With regard to the docket bearing
the number 2003-2336(EI), the appellant is Le
Réseau CLIC Inc. and the decision of the Minister is dated
March 27, 2003. It concerns the employment insurance assessment
dated July 4, 2002, in respect of the workers whose names are
shown in the annex to the Reply to the Notice of Appeal (the
"Reply"). The years at issue are 2000 to 2002.
[3] The appeal numbered
2003-2338(EI) concerns Les Consultants CLIC Inc. and the
decision of the Minister is dated March 27, 2003. It concerns the
employment insurance assessment in respect of workers for the
years 2000 to 2002 the list of whom is attached to the Reply.
This list of workers includes Ms. Johanne Lelièvre, who is
an intervener in this appeal.
[4] Hereinafter, the appellant parties
will be collectively called the appellants. In the course of the
hearing, the witnesses will frequently refer to the appellants
using the term CLIC.
[5] Counsel for the appellants
informed the Court that in docket 2003-2336(EI), on the
list attached to the Reply, the name of Mr. Alain Gamache
appears. The insurability of the employment of this person is no
longer questioned by the appellants.
[6] Counsel also explained that all
the persons concerned by the assessments are teachers in the
Montreal region or in other regions where there are no CLIC
schools. The Head Office of the appellants is in Sherbrooke.
[7] The intervener, Ms.
Johanne Lelièvre, was the first to testify. She is
now working as a financial consultant.
[8] In 2001, the intervener was a
teacher for one of the appellants. She said that she had answered
an advertisement in the newspaper looking for English teachers.
She received one day of training and evaluation and was
subsequently informed that she met the evaluation criteria. A few
weeks later, the appellant contacted her and offered her a job in
the Boucherville region. The intervener telephoned the client and
they agreed on the hours and days. She gave approximately 80
hours of lessons.
[9] She explained that the
remuneration was based on the number of hours spent with the
students. In each contract, there was a set number of hours. It
was up to her to define with the client the frequency with which
she was to meet with him. This client was the client of CLIC.
[10] Initially, she did not ask for payment
for her car expenses. She subsequently asked for $10 per client
per week.
[11] She was responsible for assessing the
students' level of knowledge. She was supposed to create the
course content based on her own evaluation. CLIC provided the
textbooks, but these required a great deal of modification. Once
the session was over, she would evaluate the level that the
students had attained and inform CLIC.
[12] She used three methods. The book
provided by the appellant for some exercises, together with the
pictures and videos she had assembled. She prepared her
presentations in her home office. At no time did CLIC ask to see
the lesson plan, or to check or approve it. At no time was she
supervised in her classroom by anyone from CLIC.
[13] She did, however, have instructions or
guidelines provided by the appellant. The appellant normally
conducted the first interview with the client, discussed with
them about what they wanted and informed the intervener
accordingly.
[14] The service agreement between the
intervener and Les Consultants CLIC will be found at Tab 7 of
exhibit A-1. The fee was $16 an hour. She did not bill GST
or TVQ, although she was registered for them, because she had
been told that she could wait until she was making $30,000 a year
before billing the tax.
[15] She was able to turn down contracts.
She was not entitled to have another teacher replace her without
permission from CLIC.
[16] She was working at the same time for
other companies as a consultant in a variety of fields.
[17] The appellants' first witness was
Ms. Mignon-Martel, who is a secondary and elementary school
English teacher in Baie Trinité in Godbout. She has
been teaching English for 40 years.
[18] One of her friends gave her name to
CLIC, which needed English teachers in Baie Comeau. The
appellant has no office in Baie Comeau. The appellant
assigned her a government employee who wanted to obtain his
bilingual status. CLIC sent books to her, including the
student's book and the teacher's book, and told her that
she was to start teaching on Monday morning.
[19] The first day, the lesson was given at
her home because she had no office. Subsequently, the lessons
were given at the Fisheries Canada office in
Baie Comeau.
[20] She received no training from CLIC. She
only very rarely used their books. She designed a course for her
student using her computer and audio cassettes. She was not paid
for lesson preparation. No one from CLIC visited her lessons.
[21] She was paid $15 an hour. The bills
showed the hours of work and the students signed them. She sent
her bill by fax every two weeks.
[22] When cross-questioned, she admitted
that one person had come to administer a test to a student during
the contract. That was the only time that she had seen anyone
from CLIC.
[23] She regarded herself as self-employed.
She was the one who decided what she would teach. She taught 37.5
hours a week for 10 weeks, 375 hours, and she taught 16 hours to
another person. That year, she did all her teaching for CLIC, but
the following year it was 21 hours for three days.
[24] The next witness was Mr.
Brian Colwell. He has a Master's degree in French Language
and Literature and an education diploma in teaching French as a
second language. He has been working for CLIC for almost four
years. It will be four years in February 2004.
[25] There is no guaranteed number of
contracts. The courses are given in companies where the students
are working. He also uses CLIC manuals as the basic material, but
these books need enrichment. He also has his own computer. No one
has ever visited his courses to check on his work. He was the one
who decided in what way, when and how he would use the
material.
[26] At the start, there was an initial
schedule, but changes could occur depending on the students'
constraints. The billing was done in the same way as described
previously.
[27] In response to a question from the
Court as to whether he had other occupations in addition to those
of teaching for CLIC, he replied that for almost 13 months he had
been doing some French to English translation in the evenings and
on weekends. Apart from that, he was kept fully occupied by CLIC.
He was available to give lessons from 7.30 am to 6 pm. He could
work between four hours one day and eight hours another.
[28] When he was sent his schedule, CLIC
checked on his availability in advance. He had no business card
identifying himself as a language teacher. He did not attempt to
recruit customers, neither did he attempt to do so for his
translation activities, although the work came to him.
[29] The next witness was Mr.
Martin Chênevert, a French teacher. He has a masters
degree in French literature with a specialization in linguistics.
He explained that he had had a contract with the appellant to
teach French. He put his program together on his computer. These
programs differed depending on the students' work
environment.
[30] The description of his working
conditions was essentially similar to that of the previous
witnesses. He received no training from CLIC. He regarded himself
as an self-employed worker. He had no company name in 2001.
[31] Ms. Michèle Leduc is Vice
President, Credit, National Bank. She has been employed in this
position since 1989. Her employer encouraged her to take English
language training. The company that her employer selected was
CLIC. In Jonquière and Sherbrooke, the students take their
lessons in the CLIC premises. In Montreal, the lessons are given
in the students' offices. In Sherbrooke, the lessons closely
follow the CLIC books.
[32] On several occasions, either
Ms. Morrissette or Ms. Charpentier came on courtesy or
inspection visits while she was taking the lessons. This never
happened in Montreal. In Montreal, the CLIC book was used as an
aid.
[33] Ms. Line Charpentier is the
President of the appellant companies. She began by describing the
history of the appellants' activities in the metropolitan
Montreal region. Until 1987, the appellants had premises on
Maisonneuve Boulevard West. This was a fine school with an
educational director, but the classes were not given on the
school premises. The clients would ask to have their lessons on
their own premises. The rental cost was very high, $75,000 for
rent and $25,000 in business taxes. This school closed in 1987,
but the business continued teaching with employees.
[34] However, according to her, it was not
possible to check on employees in premises which were not their
own.
[35] She explained that CLIC operated either
with franchises, or with its own schools or on contract. There
are franchises in Hull, Saint-Jean-sur-le-Richelieu, Granby,
Trois-Rivières, Drummondville, Rimouski and
Rivière-du-Loup. These are all locations where
the teachers are treated as salaried employees.
[36] The survival of the company required a
different structure, namely as consultants, self-employed
workers. The employees are paid by the hour, they are assigned
classes, they receive initial and ongoing training. They are
recruited and trained and their performance is validated through
meetings with the clients.
[37] The appellant began using the agreement
produced at Tab 7 of exhibit A-1 beginning in 1999. She
recruited her teachers from Montreal universities.
[38] The document that was prepared by Ms.
Cara Webb will be found at Tab 1 of exhibit A-1. This
was sent by fax to Ms. Charpentier. She wanted to sell this
document, to which she had retained the rights. She was teaching
in Montreal. It was a document that was intended for teachers in
Montreal. Its aim was to explain how self-employed workers should
organize themselves. She had not bought the document because the
Montreal consultants knew how to organize themselves. During the
first interview with them, everything they needed to do was
explained to them, and it was not necessary to purchase the
document.
[39] Ms. Charpentier told how she had lost
81 out of 91 consultants when their status had been changed from
self-employed to employee. There was a natural turnover of
approximately 25 to 30% per year, but 81 out of 91 had seriously
jeopardized the Montreal business.
[40] The Montreal consultants would notify
the company of their availability and the company would give them
contracts. These people came first to Sherbrooke for the
interviews. Their skills had to be validated, together with their
knowledge of the language and their ability to write. She taught
all modern languages, German, Russian, Spanish, Portuguese and
Japanese. Each teacher put together their own program. Material
was available especially for English, but also for French and a
little for Spanish, but there was nothing for the other
languages.
[41] A decision dated October 15, 2001, will
be found at Tab 10. It concerns a CLIC consultant in whose case
the Minister decided that this was not insurable employment.
Arguments
[42] Counsel for the appellants stated that
no control was exercised over the consultants in Montreal, in
contrast to what happened in Sherbrooke.
[43] He referred to the Operations Manual
(Tab 9), which states that beginning teachers will be assisted by
a senior teacher. He stated that these procedures are implemented
in the schools owned by the appellants or in those of franchise
operators. This is not the case in Montreal. While the teachers
in Montreal can use the appellant's material, they normally
use their own. The teachers are responsible for their own
transportation costs. They sometimes ask the appellant for a
contribution towards these travel costs. This does not prevent
the teachers from being responsible for their travel costs. If
teachers do not give their lessons, they are not paid. The
student is the one who evaluates the teacher.
[44] Counsel for the appellants referred to
the decision of the Federal Court of Appeal in
Charbonneau v. Canada (Minister of National
Revenue), [1996] F.C.J. No. 1337 (Q.L.), and
specifically at paragraph 10:
Supervising the work every two days and measuring the volume
every 15 days does not in this case create a subordinate
relationship and is entirely compatible with the requirements of
a contract for services. It is a rare contractor who does not
check that the work is performed in accordance with their
requirements and at the agreed locations. Controlling the results
must not be confused with controlling the worker.
[45] He also refers to the decision of the
Federal Court of Appeal in Vulcain Alarme Inc. v. Canada
(Minister of National Revenue), [1999] F.C.J. No. 749 (Q.L.)
and specifically at paragraphs 4, 5 and 7:
4 In our
opinion, all these points of fact are also consistent with a
contract of enterprise. A contractor who, for example, works on
site on a sub-contract does not serve his customers but those of
the payer. That is the general contractor who has retained his
services. The fact that Mr. Blouin had to report to the
plaintiff's premises once a month to get his service sheets
and so to learn the list of customers requiring service, and
consequently the places where his services would be provided,
does not make him an employee. A contractor performing work for a
business has to know the places where services are required and
their frequency just as an employee does under a contract of
employment. Priority and performance of the work required of a
worker is not the apanage of a contract of employment.
Contractors or sub-contractors are also often approached by
various influential customers who force them to set priorities in
providing their services or to comply with the customers'
requirements.
5 As
regards remuneration and the billing system, it is worth
repeating the comments of my brother Hugessen, J.A. in Canada
(Attorney General) v. Rousselle et al. [(1990) 124 N.R. 339
page 344.] where he concluded that the Judge had clearly not
understood the meaning of the word "control":
Fixing the amount of remuneration or defining the purpose of
the exercise is not controlling work. These aspects exist in a
contract for services as much as in a contract of service. It is
still more the case that control does not lie in the act of
payment, whether by cheque or otherwise.
...
7 In the
case at bar the evidence did not disclose that the plaintiff
controlled Mr. Blouin by giving orders and instructions in the
way his work was to be done. On the contrary, the latter was
complete master of the way in which he provided his services,
except that they had to be done within 30 days. No one imposed
any control on him or exercised any supervision over his
provision of the services, and Mr. Blouin set his own schedule.
We will also return to this concept of control in the following
analysis of the concept of ownership of tools.
[46] Counsel asserted that the situation was
the same with regard to the Montreal teachers. The teachers
retained control of the way in which they provided their
services. He also asserted that, if one looked at the list of
teachers who had been declared employees by the Minister, one
could see in the case of several teachers that the amounts over
the course of a year were small indeed. This shows that it was
the teachers who determined the use of their time.
[47] The intervener referred to Le
Collège d'Extension Cartier Ltée v.
Canada (Minister of National Revenue - M.N.R.), [2003] T.C.J.
No. 71 (Q.L.). In this case, the workers recruited to give the
training sessions were considered by a Deputy Tax Court Judge as
self-employed workers and not employees.
[48] Counsel for the respondent referred to
the decision of the Federal Court of Appeal in Wiebe Door
Services Ltd. v. M.N.R., and asked the question, was this the
business of the teachers or of the appellants? He asserted that
the evidence clearly shows that the students are the clients of
CLIC, that the advertising is produced by CLIC, that the clients
are recruited by CLIC, and that even one of the professors had
ordered business cards in CLIC's rather than his own
name.
[49] Counsel refers to the decision by
Tardif, J. in Centre de Langues de Trois-Rivières
Inc. v. Canada (Minister of National Revenue), [2003] T.C.J.
No. 191 (Q.L.). In this case, the lessons could be
given either at the school or outside, at the option of the
customer of the language school. The teachers were regarded as
employees. Counsel referred specifically to paragraphs 9, 10, 15,
22 and 25:
9 The
rule was to the effect that everyone benefitted from it in that
nothing was imposed and everyone contributed; this was true in
light of the availability, preferences and affinities of the
teachers. The teachers could display their constraints and
reservations with regard to the choice of the students whom they
wanted to teach.
10 This freedom and
considerable latitude was also apparent in terms of the location
where the private lessons were given and also with regard to the
necessary tools. The teachers could use their own material or
take that which was available from and offered by the appellant.
The teachers could also reach an agreement with their students,
in the case of private lessons, on where they would meet.
...
15 In this case, the
appellant company practised a policy of respect, cooperation and
concertation. On the other hand, none of the proof, the burden of
which was on the appellant, has established that it had no power
of control or that it had renounced this power over the persons
whom it remunerated.
...
22 Overall, there is
no doubt that the appellant controlled the planning and
development of the business. The teachers were closely associated
with its progress, but they did not constitute an independent
link.
...
25 The travel costs
were also reimbursed, depending on the locations where the
lessons were given.
[50] He also refers to the decision of
Somers, J. in Centre du Clavier Allard Inc. v. Canada
(Minister of National Revenue), [2001] T.C.J. No. 144
(Q.L.), who decided that the workers were employees. In this
case, the appellant provided the premises for giving the music
lessons. Counsel referred to paragraph 20:
a) the degree of control
20 The appellant
hired the teachers subject to certain constraints: they had to
give the lessons on the appellant's premises and indicate the
times they were available and abide by those times. However,
there was some flexibility, allowing teachers to alter the
schedule on occasion, but any changes had to be made with the
consent of the customer and the appellant. It was the appellant
who ultimately determined the class schedule. The fact that the
teachers had some discretion over the method they would use had
no effect on the appellant's control over the teachers. It is
the right to exercise to exercise control and not the actual
exercise of control that is relevant. Based on the evidence as a
whole, there was a contract of service according to this
criteria.
Conclusion
[51] In my view, the evidence has revealed
quite clearly that this is a case in which the workers are
self-employed and not employees. The recent decisions of the
Federal Court of Appeal show us the path we should follow in
cases where the usual criteria of the case law do not clearly
reveal a situation of employment or enterprise. The intention of
the parties thus becomes the determining factor.
[52] I refer to the decision of the Federal
Court of Appeal in Wolf v. Canada, [2002] F.C.J.
No. 375 (Q.L.), paragraphs 64, 67, 94 120 and 124:
64 The appellant
submits that he belongs to a category of temporary workers, a
breed which is on the rise in Canada and in the world, which
includes workers hired for short-term appointments through
temporary help agencies and "own-account"
self-employment such as consultants, freelancers and independent
contractors. This type of work is sometimes referred to as
non-standard or temporary employment ...
67 The appellant
submits that absent a scam, window-dressing or other vitiating
circumstances, none of which are alleged in this case, his status
is governed by his contract, which describes as a consultant and
independent contractor.
120 In our day and age, when a
worker decides to keep his freedom to come in and out of a
contract almost at will, when the hiring person wants to have no
liability towards a worker other than the price of work and when
the terms of the contract and its performance reflect those
intentions, the contract should generally be characterized as a
contract for services. If specific factors have to be identified,
I would name lack of job security, disregard for employee-type
benefits, freedom of choice and mobility concerns.
...
124 This is not a case where the
parties labelled their relationship in a certain way with a view
of achieving a tax benefit. No sham or window dressing of any
sort is suggested. It follows that the manner in which the
parties viewed their agreement must prevail unless they can be
shown to have been mistaken as to the true nature of their
relationship. In this respect, the evidence, when assessed in the
light of the relevant legal tests is at best neutral. As the
parties considered that they were engaged in an independent
contractor relationship and as they acted in a manner that was
consistent with this relationship, I do not believe that it was
open to the Tax Court Judge to disregard their
understanding...
[53] I refer to another decision of the
Federal Court of Appeal in D & J Driveway Inc. v. The
Minister of National Revenue, 2003 FCA 453, and specifically
to paragraphs 7, 9, 10, 11, 12 and 15:
7 The
drivers have no facilities at the applicant's premises. Their
services are retained and provided on call. They are entirely
free to refuse the offer made to them to drive a truck, for
example, to Halifax, Quebec or Montreal. Deliveries are made from
Saint-Jacques in New Brunswick. The drivers receive a fixed
amount which is determined in accordance with the distance to be
travelled.
...
9 A
contract of employment requires the existence of a relationship
of subordination between the payer and the employees. The concept
of control is the key test used in measuring the extent of the
relationship. However, as our brother Décary, J.A. said
in Charbonneau v. Canada (Minister of National Revenue -
M.N.R.), [1996] F.C.J. No. 1337, (1996), 207 N.R. 299,
followed in Jaillet v. Canada (Minister of National Revenue -
M.N.R.), [2002] F.C.J. No 1454, 2002 F.C.A. 394, control of
the result and control of the worker should not be confused. At
paragraph 10 of the decision, he wrote:
It is indeed rare for a person to give out work and not to
ensure that the work is performed in accordance with his or her
requirements and at the locations agreed upon. Monitoring the
result must not be confused with controlling the
worker.
10 There is no
question that the applicant controlled the results in the case at
bar. It ensured that the trucks were delivered to the correct
recipients at a convenient or agreed upon time, but that is where
its control stopped.
11 In fact, drivers
could agree or refuse to make a delivery when called by the
applicant, which certainly is not characteristic of a person
bound by a contract of employment. They had no premises at the
applicant's place of business and were not required to be
available there. They only went there to take possession of the
truck they had agreed to deliver.
...
15 We feel it is
legally incorrect to conclude that a relationship of
subordination existed, and that there was consequently a contract
of employment, when the relationship between the parties involved
sporadic calls for the services of persons who were not in any
way bound to provide them and could refuse them as they saw
fit....
[54] I also refer to another decision of the
Federal Court of Appeal, Poulin v. Canada, [2003] F.C.J.
No. 141 (Q.L.), where this Court reversed my decision in
Poulin v. Canada [2001] T.C.J. No 546. In this case, I had
ruled in favour of the respondent having found that a personal
care attendant working year-round, five days a week for a total
of 40 hours a week, for a paraplegic, in accordance with the
schedule determined by the latter and to whom vacation was
granted, was an employee. The handicapped person received all the
money to pay the workers from the Société
d'Assurance Automobile du Québec.
[55] The Federal Court of Appeal decided
that this person was self-employed on the grounds that the
services rendered to the handicapped person and the conditions in
which they were rendered revealed a supply of services that is as
compatible with one resulting from a contract for services or of
enterprise as it is with one emanating from a contract of
employment. The Court concluded that in cases where the criteria
used to analyze a contract of employment versus a contract of
enterprise reveal a neutral picture, it is necessary to examine
the intention of the parties.
[56] I quote paragraphs 27 to 29:
27 In conclusion,
the tests developed by the Courts to differentiate a contract of
employment from a contract of services prove to be of little use
in the particular context of this case. The services rendered to
the applicant during 1999 and the conditions in which they were
rendered reveal a supply of services that is as compatible with
one resulting from a contract for services or of enterprise as it
is with one emanating from a contract of employment. That being
said, as our colleague Mr. Justice Décary noted in
Wolf, supra, at paragraph 117, these tests are simply
factors to be considered in the determination of what "is
the essence of a contractual relationship, i.e., the intention of
the parties". And as he also says, "one ends up in the
final analysis, in civil law as well as in common law, looking
into the terms of the relevant agreements and circumstances to
find the true contractual reality of the parties":
ibid., at para. 113.
28 This leads me to
examine the intention of the parties in order to determine the
overall relationship that they wished to maintain between
themselves.
d) Intention
of the parties
29 There is not, in
this case, as is often the case in similar matters, any written
agreement; this obviously makes the search for intention more
difficult but not necessarily impossible.
[57] At paragraph 11 of this decision, the
Federal Court of Appeal indicated that it was not necessary to
conclude the quasi-automatic existence of a relationship of
subordination or control from the fact that a person is recruited
to perform certain duties according to a given schedule and
compensation.
[58] I quote part of paragraph 11, as well
as paragraphs 13, 14, 15 and 16 of this decision:
...
The Tax Court of Canada also cited the notion of control and
justified its conclusion by referring with approval to the facts
relied on by the Minister. It concluded as well that there was a
quasi-automatic relationship of subordination between a person
with disabilities and the person recruited to perform certain
duties, owing to the fact that these duties are carried out
according to a given schedule and compensation....
...
a) Existence
of control and a relationship of subordination.
13 The issue under
this test is whether, based on the evidence as a whole, there is
control on the one hand, i.e. the applicant, and subordination on
the other, the workers: Wolf v. Her Majesty the Queen,
A-563-00, Neutral Citation 2002 F.C.A. 96, March 15, 2002, para.
117 (per) Décary J.A. Technically, the two
notions define an important element in the contract of
employment, as opposed to the contract for services. Article 2085
of the Civil Code of Quebec, which determines the
applicable law in this case since the contract must be
interpreted in accordance with the laws of the province of Quebec
(see Federal Law - Civil Law Harmonization Act, No. 1,
S.C. 2001, c. 4), states:
Art. 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.
14 Conversely, the
contract for services or of enterprise does not involve any
relationship of subordination in respect of performance and the
provider of services is free to choose the means of performing
the contract: Article 2099 of the Civil Code of Quebec.
The provider who operates a business or simply provides some
services does so on his own account.
15 What must be
retained from these definitions of the two contracts is that the
notion of control is important to the legal determination of the
nature of the relationship between the parties. However, this
notion of control is not always conclusive in itself,
notwithstanding the importance it must be given. As our
colleague, Madame Justice Desjardins, said in Wolf, supra,
at paragraph 72, "while the control test is the traditional
civil law criterion of employment, it is often inadequate because
of the increased specialization of the work force": see also
Wiebe Door Services Ltd., supra, at pages 558-559, where
our colleague, Mr. Justice MacGuigan, states that the test has
broken down completely in relation to highly skilled and
professional workers, who possess skills far beyond the ability
of their employers to direct.
16 Furthermore, the
notion of control is not necessarily lacking in the contract for
service. It is generally apparent, albeit to varying degrees, as
it is somewhat in the contract of employment, and sometimes to a
surprising extent without necessarily distorting its nature as a
contract of enterprise. For example, control in regard to the
premises in general and the specific places in which the work is
to be performed is exercised over general contractors and their
sub-contractors. The latter are also given specific instructions
as to the materials and the drawings and specifications with
which they must comply. Often the times and work schedules of
some in relation to others are also controlled and determined to
ensure the effective and harmonious operation of the construction
site. The work performed by contract for services is also subject
to some performance, productivity and quality controls.
[59] I have cited extensively from this
decision in order to show that it is necessary to be very prudent
when modifying the agreement freely concluded by the parties to a
contract of employment or enterprise, in circumstances which may
likely arise out of the nature of one of these contracts.
[60] Here, like the workers in J & D
Driveway, supra, the workers had no hearth or home with the
appellants. The workers could accept or refuse to undertake a
teaching session. They informed the appellants of their
availability and they offered them contracts. It was overall a
matter of sporadic contractual relationships.
[61] The teachers assembled the lessons in
large measure on their own. The supervision of the teachers by
the appellants was nonexistent. The quality control of the
service occurred by means of the students' evaluation. This
type of control is consistent with an enterprise contract.
[62] In fact, in this case, the analytical
criteria related to contracts of employment and of enterprise
barely reveal a neutral picture. These are circumstances that are
far more indicative of a contract of enterprise than those of a
contract of employment.
[63] Let us nonetheless look at the
intention of the parties. According to the testimony, the
intention of the parties was not to establish a contract of
employment between themselves, but a contract of enterprise. As
far as the enterprise is concerned, the choice of proceeding by
means of a contract of enterprise was made as a result of the
economic and organizational requirements in connection with its
operation in the Montreal region. As far as the workers are
concerned, the only worker who asked for the status of employee
and with regard to whom a decision has been handed down did not
see fit to come here to testify. It makes me think that her
testimony would not have been different from that of the other
teachers we have heard, who wanted flexibility with regard to the
acceptance of contracts and their independence as teachers.
[64] It is true that, generally speaking,
these were young recruits and that in such cases, their margin
for manoeuvre in signing employment or enterprise agreements
is more restricted. It can at times be a question of consent that
is basically vitiated. In order to obtain paid employment, the
young worker will agree to the conditions set by the company. But
it can also happen that the young professional sincerely wishes
to have the status of a self-employed worker because of the
independence that that gives him or because he freely accepts
such contracts of enterprise while awaiting a contract of
employment.
[65] In this case, there are no elements
that lead me to believe that there was any window dressing of the
true intentions of the parties regarding the nature of the
contract of enterprise.
[66] Consequently, with the exception of the
worker mentioned at paragraph 5 of these Reasons, the assessments
are vacated. The appeals are allowed.
Signed at Ottawa, Canada, this 14th day of January, 2004
Lamarre Proulx J.
Certified true translation
Colette Beaulne
Email this Content