|
Citation: 2003TCC635
|
|
Date: 20031014
|
|
Docket: 2002-1464(EI)
|
|
BETWEEN:
|
|
MARIE-ROSE COULOMBE,
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
|
REASONS FOR JUDGMENT
Angers, J.
[1] This
appeal was heard at Inukjuak, Quebec, on June 12, 2003. The
Appellant appeals from the Minister of National Revenue's decision of
January 22, 2002, handed down under subsection 93(3) of the Employment
Insurance Act (the "Act") that her employment with the
Inuulitsivik Health Centre (the Payor) during the period from February 27
to April 8, 2000, is not insurable within the meaning of the Act,
namely pursuant to paragraph 5(1)(a). The reason for this decision
was that the employment does not meet the conditions required for a contract of
service.
[2] In
making his decision, the Minister relied on the following assumptions of fact,
which were admitted or denied as set forth below:
[translation]
(a) The Payor is
a member of the CLSC network in Quebec's far north region; [admitted]
(b) the Appellant
ran a daycare business; [denied]
(c) in
February 2000, the Payor contacted the Appellant to take care of a child
with rickets for a short period of time; [admitted]
(d) the Appellant
acted as foster family; [denied]
(e) for
25 days, the Appellant took care of the child 24 hours a day at her
home; [admitted]
(f) an officer
of the Payor went to the Appellant's home three times a week to pick up the child
and bring the child to the doctor; [admitted]
(g) save for
keeping a log of food consumed by the child, the Appellant acted as she deemed
fit; [denied]
(h) there was no
relationship of subordination
between the Payor and the Appellant: [denied]
(i) the Payor
provided clothing and at times, diapers; [admitted]
(j) the
Appellant provided her home, furniture, food, milk and at times, diapers; [admitted]
(k) the Appellant
received a per diem rate of $14.97
plus a premium of $6.62 for milk. [admitted]
[3] The
Appellant testified that a woman approached her about looking after a one‑year‑old
child for an initial period only of three days. She was simply required to take
care of the child, feed and give the child the proper medication, and someone
would then come to pick up the child. At that time, the Appellant was not
running a daycare business, was not registered as a daycare business and did
not have a business registration number. Compensation was based on a
per diem rate of $14.97 plus a premium for milk, which was set by the
Payor.
[4] The
Appellant had extensive experience in the field since she had run a daycare
business from 1991 to December 1999.
[5] The
initial three‑day period was extended and the Appellant ended up taking
care of the child until April 8, 2000. A representative of the Payor
would come to pick up the child two or three times a week for visits to the
doctor or to the child's parents. Following these visits, the Appellant
submitted the log she kept, which indicated all that the child consumed in food
and in medication. Such monitoring was necessary because the child suffered
from malnutrition. This was the Appellant's first experience with the Payor and
she believed she would receive her usual per diem rate. However, it was
the Payor who set the rate and the Appellant pointed out that she was providing
her services for humanitarian reasons.
[6] Pierre Laroche
is a human resources management consultant at the Inuulitsivik Health Centre.
His tasks include being in charge of youth protection. According to his
testimony, children are placed in temporary foster care by order of a court or
by a community worker. Foster families are compensated for this service
according to a scale that is based on the child's age. Some criteria are used
in determining the set per diem rate. The Appellant in this case was
considered the foster family.
[7] According
to Mr. Laroche, a community worker visits with foster families based on
requirements set out in the court order. He pointed out that the Health Centre
as such has no control over foster families. The community worker chooses the
foster families and is the one who visits the children and ensures adherence to
the court order and proper care of the children. The community worker reports
to the Health Centre. Mr. Laroche testified that, like that of other
foster families, the Appellant's name does not appear on the Health Centre's
list of employees. Payment is made to foster families upon submission of an
invoice, as was the case for the Appellant in this case.
[8] The
Appellant's representative argues that the Appellant cannot be a self‑employed
worker because she was not registered as such and had no business registration
number. Furthermore, he argues that the Health Centre exercised control over
the Appellant's work in the sense that the community worker who reported to the
Centre visited the Appellant three times a week. This regular supervision,
carried out to meet significant requirements for the child, created in view of
the Appellant's representative, a relationship of subordination essential to a
contract of service. He adds that a self‑employed worker would not have
agreed to a per diem rate of $14.96.
[9] Counsel
for the Respondent claims that the fact that the Appellant kept a food and medication
log does not constitute control over her by the Health Centre. It is only one
way to ensure that the child is well and that the requirements of a court order
are met. The Appellant acted as mother and given their low number, weekly
visits represented a monitoring of result only and did not constitute a control
over the Appellant. She adds that the Appellant's work was not part of the
Health Centre's activities and that the application of the integration test
does not demonstrate the existence of a contract of service. Compensation
received by the Appellant is not a wage but rather a reimbursement for expenses
incurred. It does not correspond to the insurable hours equal to wage hours.
[10] Of the documents filed as evidence there is schedule 5 of
Exhibit A‑3, where one finds a description of the recruitment and
selection process of foster families. Under "control, supervision and
visit of foster families", the document explains that: [translation] "a person from the Centre de protection de l'enfance et de
la jeunesse pays regular
visits to the beneficiary of a foster family as well as to the foster family
itself, in order to meet their social service requirements, ensure that the
pairing is still adequate, prevent any misunderstanding, and make sure that the
child is still receiving proper care in his or her foster family."
[11] The question at issue is summarized as follows: to determine if the
Appellant's employment from February 27 to April 8, 2000, with
the Inuulitsivik Health Centre was insurable employment in accordance with the
provisions of the Act. It is up to the Appellant to demonstrate on a balance of
probabilities that a genuine contract of service existed between the Appellant
and the Health Centre.
[12] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001]
2 S.C.R. 983, the Supreme Court of Canada approved the tests
established by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R. After analyzing the caselaw and the
tests therein used to help courts rule on the question of the existence of a
contract of service, Major J. summarized it all in paragraph 47 as
follows:
Although there is no universal test to determine
whether a person is an employee or an independent contractor, I agree with
MacGuigan J.A. that a persuasive approach to the issue is that taken by
Cooke J. in Market Investigations, supra. The
central question is whether the person who has been engaged to perform the
services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the
worker's activities will always be a factor. However, other factors to
consider include whether the worker provides his or her own equipment, whether
the worker hires his or her own helpers, the degree of financial risk taken by
the worker, the degree of responsibility for investment and management held by
the worker, and the worker's opportunity for profit in the performance of his
or her tasks.
It bears repeating that the above factors constitute a
non-exhaustive list, and there is no set formula as to their
application. The relative weight of each will depend on the particular
facts and circumstances of the case.
[13] The applicable tests are the degree of control exercised by the Payor,
the ownership of tools, chance of profit, risk of loss and degree of
integration.
[14] In Charbonneau v. Canada, [1996]
F.C.J. No. 1337 (Q.L.), Décary J.A. of the Federal Court of
Appeal said that the monitoring of results must not be confused with the control
of a worker. In this case, the facts demonstrated that it was necessary that
the Appellant assume her responsibilities and obligations continuously on a
daily basis, and that the community worker visit her three times a week. It is
clear that some instructions were given when the child was placed in the
Appellant's home, but I am not convinced that they constitute as such the
degree of control found in an employer‑employee relationship. This case
entails a situation wherein the community worker's visit was rather to ensure
that all was going well and that the court order protecting the child's welfare
was indeed being followed. The evidence submitted in the proceedings is not
enough for me to conclude that the Payor exercised control over the Appellant. The
application of control test, therefore, does not support the existence of a
contract of service.
[15] The ownership of tools is irrelevant in this case. As for the chance
of profit and risk of loss, the Appellant was paid a per diem rate. Though
an additional sum was awarded towards the purchase of milk and diapers, the
admitted facts demonstrate that the Appellant also contributed towards the
purchase of those items. The daily rate of $14.97 for 24‑hour care and
attention far from meets employment standards and is even further from meeting
the minimum wage standard. On the other hand, I agree with the statement of the
Appellant's representative that a self‑employed worker would not work for
such a rate either. The chance of profit and risk of loss test is therefore
difficult to apply here and does not tend to establish the existence of neither
a contract of service nor a contract for services. This is truly a humanitarian
gesture on the part of the Appellant.
[16] The Appellant's activities in this case were not part of those of the
Inuulitsivik Health Centre. Rather, the Appellant provided services that are
incidental to the responsibilities of the Centre and this service was more
closely related to the execution of court orders for the placement of children
in order to protect their welfare. Therefore, the integration test does not
demonstrate the existence of a contract of service.
[17] The Appellant's work is commendable and essential to ensure the
welfare of children in need. In this case, however, the context unfortunately
does not lead me to conclude that she and the Payor had an employer‑employee
relationship within the meaning of the Act.
[18] For these reasons, the Minister's decision is confirmed.
Signed at Ottawa, Canada, this 14th day
of October 2003.
The
Honourable François Angers, J.
on this 22nd day of
March 2004.
Maria Fernandes, Translator
Email this Content