Citation: 2004TCC357
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Date: 20040520
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Docket: 2003-2015(EI)
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BETWEEN:
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NADA OUELLET,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Savoie D.J.
[1] This
appeal was heard at Montréal, Quebec, on February 23, 2004.
[2] This
is an appeal regarding the insurability of the Appellant's employment while
working for the Groupe Montoni (1995) Division Construction Inc., the Payor,
within the meaning of the Employment Insurance Act (the Act), during the
period in question, April 10, 2000, to October 12, 2001,.
[3] On
February 11, 2003, the Minister of National Revenue (the Minister) informed the
Appellant of his decision that the employment was not insurable because she was
not employed under a contract for services.
[4] When
rendering his decision, the Minister relied on the following presumptions of
fact, listed at paragraph 5 of the Reply to the Notice of Appeal, which were
admitted or denied by the Agent for the Appellant:
[translation]
(a) The Payor,
Groupe Montoni (1995) Division Construction Inc., specializes in construction
and renovation. (admitted)
(b) Its sole
shareholder is Dario Montoni. (admitted)
(c) There is an
arm's length relationship between the Payor and the Appellant. (admitted)
(d) The Appellant
was hired to clean the premises of the business owned by the Payor. (admitted)
(e) There was no
written contract of employment between the parties. (admitted)
(f) The
Appellant's duties were to wash the floors, clean the windows, dust the
offices, empty garbage cans, clean the employee kitchen and clean the toilets.
(admitted)
(g) She worked
outside the Payor's business hours and was neither controlled nor directed by
the Payor in the performance of her work. (denied)
(h) The Appellant
had the key to the business and the access code to the Payor's premises.
(admitted)
(i) She did not
have a set schedule to respect because what mattered was the final result.
(denied)
(j) The
Appellant provided all the cleaning products required for her work. (denied)
(k) The Payor
provided the cleaning apparatus, such as the vacuum and mop. (admitted)
(l) The Payor
paid the Appellant a weekly fee of $430 for the cleaning contract. (admitted)
[5] The
evidence shows that, as the Minister claimed, the Appellant was to carry out
her duties after business hours and that this is the only restriction or
control imposed by the Payor over her work.
[6] The
Appellant received a regular weekly pay from the Payor, which was subject to
source deductions for employment insurance, federal and provincial taxes and
contributions to the Régime des rentes du Québec. The Minister admitted that
the Appellant had received the prescribed 4% vacation pay.
[7] It
was established that the Appellant did not have a set schedule, as long as she
carried out her work outside the Payor's business hours. The evidence shows
that the only control the Payor had over the Appellant's work was assessing the
final product, which, according to the case law, is not considered control by
the employer over the employee's work.
[8] The
evidence also shows that the Payor provided the Appellant with a vacuum, mop
and certain cleaning products. It was also shown that the Appellant provided
certain products used in her work but never claimed any reimbursements from the
Payor because the amounts were minimal.
[9] It
must be noted that the Appellant was not present at the hearing. Her agent,
Pierre Garaud, explained that she had medical problems.
[10] In these circumstances, it is relevant to reproduce certain elements
of the Appellant's statutory declaration, made to an employee of Human
Resources Development Canada (Exhibit I-1) on January 27, 2003, which state:
[translation]
...I worked at this place evenings
or weekends and I set my own hours of work, except I could not work during the
day on weekdays. I was paid a fixed salary of $430.00 gross per week,
regardless of the number of hours of work I performed. On average, I worked 20
hours a week. The company provided me with a vacuum and certain products but I
sometimes had to provide products I purchased myself, which I did not claim
from the employer because the amounts were so low. I admit I gave erroneous
information in my application for benefits, in regard to my type of work and my
work schedule, as well as on my statutory declaration of May 29, 2002, because
I was surprised at the reason I was called in…
[11] It is of note that the evidence submitted by the Appellant did not
show that the Minister's presumptions were false. On the contrary, the
Appellant's evidence, the statutory declaration (Exhibit I-1), including the
citation above, corroborated the Minister's presumptions.
[12] The Agent for the Appellant, Pierre Garraud, claims that Ms. Montoni,
spouse of the Payor's sole shareholder, was the one who set the Appellant's
work schedule. This statement, however, was not supported by the evidence.
[13] The tests with which we must assess the Appellant's work to determine
whether the employment is insurable, was established in Wiebe Door Services
Ltd. v. M.N.R., [1986] 3 F.C. 553, in which the Federal Court of Appeal
stated:
The case law has
established a series of tests to determine whether a contract is one of service
or for the provision of services. While not exhaustive, the following are four
tests most commonly referred to:
(a) the degree or absence of
control exercised by the alleged employer;
(b) ownership of tools;
(c) chance of profit and risks of
loss;
(d) integration of the alleged
employee's work into the alleged employer's business.
[14] Regarding the first test, control, the evidence shows that this was
nonexistent. No relationship of subordination, an essential characteristic for
any contract for services, was established; what was important was the result.
The Appellant operated as a self-employed worker, she herself decided when and
how she would carry out her work. The only instruction: her work was to be done
outside the Payor's business hours.
[15] In a recent decision rendered February 13, 2004, by the Federal Court
of Appeal, Livreur Plus Inc. v. Canada (Minister of National Revenue -
M.N.R.), [2004] F.C.J. No. 267, Létourneau J. stated:
In these circumstances, the tests mentioned in Wiebe
Door Services Ltd. v. M.N.R., 87 D.T.C. 5025, namely the degree of control,
ownership of the work tools, the chance of profit and risk of loss, and finally
integration, are only points of reference: Charbonneau v. Canada (Minister
of National Revenue - M.N.R.) (1996), 207 N.R. 299, paragraph 3. Where a
real contract exists, the Court must determine whether there is between the
parties a relationship of subordination which is characteristic of a contract
of employment, or whether there is instead a degree of independence which
indicates a contract of enterprise: ibid.
Having said that, in terms of control the Court should
not confuse control over the result or quality of the work with control over
its performance by the worker responsible for doing it: Vulcain Alarme Inc.
v. The Minister of National Revenue, A-376-98, May 11, 1999, paragraph 10,
(F.C.A.); D & J Driveway Inc. v. The Minister of National Revenue…at
paragraph 9. As our colleague Décary J.A. said in Charbonneau v. Canada
(Minister of National Revenue - M.N.R.)…followed in Jaillet v. Canada
(Minister of National Revenue - M.N.R.), 2002 FCA 394, "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".
[16] A review using the test of ownership of tools leads to a result that
is more or less null, since the Appellant and the Payor shared them.
[17] As for integration, if it were true that the Appellant did not work
for the Payor, the evidence would lead us to conclude that nothing would have
prevented her from offering her services to other businesses. Moreover, we
could conclude that the work she performed for the Payor could very well have
been offered to a sub-contractor.
[18] The Appellant had the burden of proof. She had to show that the
Minister's presumptions were false, and she did not do this. Moreover, most of
the Minister's presumptions were admitted.
[19] In these circumstances, it must be noted that the Court can draw a
negative inference from the Appellant's absence from the hearing. This Court,
in Nicolas A. Enns and M.N.R. (App-1992(IT)), in similar circumstances,
stated:
In The Law of Evidence in Civil
Cases, by Sopinka and Lederman, the authors comment on the effect of
failure to call a witness and I quote:
In
Blatch v. Archer, (1774), 1 Cowp. 63, at p. 65, Lord Mansfield
stated:
'It
is certainly a maxim that all evidence is to be weighed according to the proof
which it was in the power of one side to have produced, and in the power of the
other to have contradicted.'
The
application of this maxim has led to a well-recognized rule that the failure of
a party or a witness to give evidence, which it was in the power of the party
or witness to give and by which the facts might have been elucidated, justifies
the court in drawing the inference that the evidence of the party or witness
would have been unfavourable to the party to whom the failure was attributed.
In
the case of a plaintiff who has the evidentiary burden of establishing an issue,
the effect of such an inference may be that the evidence led will be insufficient
to discharge the burden. (Levesque et al. v. Comeau et al. [1970] S.C.R.
1010…
[20] In this context, the following passage from the Appellant's statutory
declaration (Exhibit I-1) warrants restating:
I admit I gave erroneous
information in my application for benefits, in regard to my type of work and my
work schedule, as well as on my statutory declaration of May 29, 2002, because
I was surprised at the reason I was called in…
[21] This Court does not feel that the Appellant established the validity
of its intervention. It must therefore support the Minister's decision and
finds that he correctly concluded that the Appellant's appeal was unfounded in
fact and in law. Therefore, the Appellant did not hold insurable employment
during the period in question because she and the Payor were not linked by a
contract for services within the meaning of paragraph 5(1)(a) of the
Act.
[22] As a result, the appeal is dismissed and the Minister's decision is
confirmed.
Signed at
Grand-Barachois, New Brunswick, this 20th day of May 2004.
Savoie
D.J.
Translation
certified true
on this 31st day of
March 2009.
Elizabeth Tan,
Translator
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