[OFFICIAL ENGLISH TRANSLATION
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Citation: 2004TCC569
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Date: 20040819
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Docket: 2004-1235(EI)
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BETWEEN:
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LINDA LEBEL,
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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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And
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CAROL LEBEL,
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Intervener.
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REASONS FOR JUDGMENT
BédardJ.
[1] The question at issue is
relatively simple: the Minister of National Revenue (the
"Minister") is of the opinion that the Appellant, in
her capacity as a babysitter, was not employed under a contract
of service, within the meaning of paragraph 5(1)(a) of the
Employment Insurance Act (the "Act"), by
the Payer, Carol Lebel, and accordingly did not hold insurable
employment for the period commencing on June 1, 2003, and ending
on September 5, 2003.
[2] The facts on which the Minister
based his decision are set out at paragraph 5 of the Reply to
Notice of Appeal and are as follows:
a) the
Appellant is the sister of the Payer;
b) the Payer
looked after a 13-month old child as a babysitter;
c) the Payer
also rented a cabin and two houses to tourists during the
summer;
d) during the
period at issue, the Appellant had two jobs with the Payer;
e) the
Appellant was hired by the Payer to babysit the child 3 days a
week, from Tuesday to Thursday;
f) in
addition, the Appellant did housekeeping for the Payer in the
tourist accommodation on Saturdays and Sundays, between the
departure and arrival of the guests;
g) the
Appellant looked after the child at her residence or in her
trailer;
h) the Payer
brought the child around 7.55 am and picked it up at around 5.00
pm;
i) the
Appellant was able to engage in other activities while
babysitting the child;
j) the
Payer had no control over the time and efforts of the Appellant
as a babysitter;
k) the
Appellant was paid at a rate of $9.00 an hour for each of her
jobs;
l) the
Appellant worked approximately 27 hours a week as a babysitter
and 13 hours a week in charge of housekeeping in the tourist
accommodations;
m) the Appellant
would invoice the Payer for her services to obtain her
remuneration;
n) the
Appellant provided her residence, together with snacks and meals,
as part of her babysitting duties;
o) the Payer
did not reimburse the Appellant's expenses while she was
acting as babysitter;
p) the
Appellant assumed the expenditures in the context of her
employment as a babysitter;
q) on
September 18, 2003, the Payer issued a record of employment to
the Appellant for the period beginning on June 1, 2003, and
ending on September 5, 2003, which showed 560 insurable hours and
total insurable remuneration of $5,040.00 for the two jobs of
babysitter and housekeeper;
r)
according to her own invoices, the Appellant worked for the Payer
as a babysitter for 379 hours for remuneration of $3,411.00 and
as a housekeeper for 180 hours for remuneration of $1,620.00, for
a total of 559 hours and remuneration of $5,031.00.
[3] It should be noted that the
Appellant has admitted all the facts set out at paragraph 5 of
the Reply to Notice of Appeal, with the exception of those set
out at paragraphs j), m), o) and p), and that her evidence is
based essentially on her testimony, since the Payer did not
appear to testify.
Analysis
The law
[4] It should be emphasized that the
contractual relationship between the Appellant and the Payer must
be interpreted in accordance with the statutes of the Province of
Quebec.
[5] In the Civil Code of
Quebec, there are separate chapters dealing with the
"contract of employment" (articles 2085 to 2097) and
the "contract of enterprise or for services" (articles
2098 to 2129).
[6] Article2085 states that 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] Article2098 states that a contract
of enterprise or for services:
[...] is a contract by which a person, the contractor or the
provider of services, as the case may be, undertakes to carry out
physical or intellectual work for another person, the client, or
to provide a service, for a price which the client binds himself
to pay.
[8] Article2099 goes on to say
that:
The contractor or the provider of services is free to choose
the means of performing the contract and no relationship of
subordination exists between the contract of the provider of
services and the client in respect of such performance.
[9] We can say that the fundamental
difference between a contract for services and a contract of
employment is the absence, in the former case, of a relationship
of subordination between the provider of services and the
contractor and the presence, in the latter case, of the right of
the employer to direct and control the employee. Pratte J. of the
Federal Court of Appeal added the following clarification in
Gallant v. M.N.R.[1]:
[...] The distinguishing feature of a contract of service is
not the control actually exercised by the employer over
his employee but the power the employer has to control the
way the employee performs his duties. [My emphasis.]
We must accordingly first attempt to determine whether or not
there was a relationship of subordination between the Appellant
and the Payer.
[10] In Wiebe Door Services Ltd. v.
M.N.R., [1986] 3 F.C. 553, MacGuigan J. of the Federal Court
of Appeal spoke at length of the criterion of control and
acknowledged that the right to specify the way in which the work
is to be performed and to give direction to the employee
regarding the way in which the work is to be performed is an
element that is fundamental to the exercise of control over the
work of the employee. In Vulcain Alarme Inc. v. Canada
(Minister of National Revenue - M.N.R.), [1999] F.C.J. No.
749, Létourneau J. of the Federal Court of Appeal also
affirmed that the basis of control is the ability to give
instructions regarding the way the work of the employee must be
performed. In the case at bar, in light of the evidence, we must
determine whether the Payer gave or could give instructions to
the Appellant regarding the way in which she was to do her work.
That said, control of the result or the quality of the work must
not be confused with control of its performance by the worker
responsible for the work. Rare are the employers who do not
ensure that the work is performed in accordance with their
requirements.
[11] However, when the evidence does not
allow us to discern clearly whether or not a relationship of
subordination exists, I am of the opinion that we must then
examine the contractual relationship in light of the other
factors set out by the Federal Court of Appeal in Wiebe Door,
supra, and restated by the Supreme Court in 671122 Ontario
Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, in
other words, integration, ownership of the tools required to
perform the work, the opportunity for profit and the risk of
loss. These factors can indicate the existence of a contract of
service.
[12] The review of the facts, in light of
these criteria, will normally enable us to confirm the existence
or absence of a relationship of subordination; in other words, in
case of doubt, a more comprehensive approach is required.
[13] Lastly, I would add that it may be very
useful to examine the intention of the parties when they signed
the contract, especially when the question is ambiguous, i.e.,
when the relevant factors indicate both possible conclusions at
the same time. I believe that the way in which the parties viewed
their agreement must then prevail, except if they were mistaken
about the true nature of their relationship. To be sure, the
Court will not take the stipulation of the parties regarding the
nature of their contractual relationship into account if it must
conclude otherwise, based on the evidence submitted to it.
However, in the absence of unequivocal or contrary evidence, the
Court must certainly take the stated intention of the parties
into account.
[14] Did the Appellant perform her work
under the direction or control of the Payer? Did the Payer give
or could he give orders to the Appellant?
[15] It is appropriate to recall that the
contractual relationship between the Appellant and the Payer must
of necessity be interpreted in accordance with the laws of the
Province of Quebec. Articles 2085, 2098 and 2099 of the Civil
Code of Quebec state that the fundamental distinction between a
contract of service and a contract for services is the absence,
in the case of the former, of a relationship of subordination
between the provider of the services and the client, and the
presence in the second case of the right of the employer to
direct and control the employee. In other words, did the Payer
give or could he give instructions to the Appellant regarding the
way in which she was to perform her work?
[16] In this case, the evidence has
revealed:
i) that the Appellant
was looking after the Payer's child. The child was 13 months
old. Without exception, she looked after the child three days a
week from Tuesday to Thursday;
ii) that the Payer took the
child to the residence of the Appellant at around 7.55 am and
fetched her at around 5 pm;
iii) that the Appellant looked
after the child in her residence or in her trailer. The trailer
was located by the shore and was in a way the Appellant's
summer cottage. She testified that she frequently took the child
to the trailer simply because it was more pleasant to be at the
shore during the summer;
iv) that the Appellant, while
babysitting the child, could perform other tasks;
v) that the Appellant had
received no instructions from the Payer about the way in which
she was to perform her work;
vi) that the Appellant noted the
number of hours of babysitting worked;
vii) that the Appellant was paid at the
rate of $9 an hour, even though she provided the residence,
snacks and meals while performing her babysitting duties. In her
testimony, the Appellant admitted that the Payer did not
reimburse her the expenses related to these snacks and meals.
[17] The evidence has thus clearly shown
that there was not, between the Appellant and the Payer, a
relationship of subordination which is the very essence of a
contract of service. In fact, the evidence revealed that the
Appellant had received no instructions from the Payer regarding
the way in which she was to perform her work. The Appellant even
decided where she would look after the child. She was able to do
other things. The Appellant had to demonstrate on the balance of
probabilities that the Minister was wrong on this point. In my
view, she simply failed to discharge the onus that was upon
her.
[18] Although we must not give too much
weight to the other factors set out in the case law, specifically
the ownership of tools and the opportunity for profit and the
risk of loss, in view the nature of the services rendered, the
requirements of the services and the paucity of tools used, I am
obliged to conclude that these factors do not indicate the
existence of a contract of service. In the case at bar, the
Appellant did not look after the child at the Payer's
residence, but at her own residence, and she assumed the risk of
loss since she was paid by the hour and was responsible for the
cost of meals and snacks.
[19] For these reasons, I conclude that the
employment of the Appellant was not insurable during the period
at issue.
Signed at Ottawa, Canada, this 19th day of August 2004.
Bédard J.
Certified true translation
Colette Dupuis-Beaulne.
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