[OFFICIAL ENGLISH TRANSLATION]
Date: 20010816
Docket: 2000-2617(EI)
BETWEEN:
DANIEL POULIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal from an
assessment concerning Mr. Stéphan Piersotte,
Ms. Nicole Joseph and Ms. Christine Paquette
(''the workers'') for 1999. The assessment was
made on the ground that during the period at issue the workers
held insurable employment within the meaning of the Employment
Insurance Act (''the Act'').
[2] In reaching that decision, the
respondent relied on the following assumptions of fact set out in
paragraph 4 of the Reply to the Notice of Appeal
(''the Reply''):
[TRANSLATION]
(a) the appellant
had a car accident in November 1991;
(b) following the
accident, the appellant was hospitalized until September
1992;
(c) the appellant
has remained a quadriplegic and requires daily assistance;
(d) the appellant
can move around only in a wheelchair;
(e) the appellant
resumed his work at the Museum of Civilization in Hull starting
in January 1997;
(f) the
appellant hired Christine Paquette to prepare meals, run errands
using the appellant's truck, take out the garbage, and do
laundry and housework;
(g) Christine
Paquette worked every other weekend;
(h) the appellant
hired Nicole Joseph as a nursing assistant;
(i) Nicole
Joseph performed the same duties for the appellant for two hours
per night, seven days a week;
(j) Stephan
Piersotte did laundry and housework, and drove the appellant to
work each day;
(k) the appellant
provided the supplies and equipment required by the workers;
(l) the
appellant also made his car available to the workers;
(m) the appellant set the
workers' schedule;
(n) in the event of
a worker's absence, the appellant had to find a
replacement;
(o) the appellant
paid the workers an hourly rate;
(p) the appellant
received all the funds to pay the workers from the
Société de l'assurance automobile du
Québec.
[3] The Notice of Appeal sets out the
following points:
[TRANSLATION]
I became a quadriplegic following a car accident; my
disability requires special daily assistance for several hours
per day. In light of my situation, the Société de
l'assurance automobile du Québec (SAAQ) reimburses me
a set amount every two weeks, that amount being the maximum
allowed under their mandate. Unfortunately, these reimbursements
cover essentially the costs of my personal assistance. By
declaring me to be an employer, thus obliging me to remit source
deductions as well as to pay employer's contributions, you
are placing me in a financial situation I am unable to assume. It
must be realized that I am a person with a disability who,
technically, purchases services from these people who, in
return, give me receipts that I send to the SAAQ in order
to be reimbursed.
I am not en employer in the strict sense of the word, since I
derive no profit from these activities, and since in no way does
my financial situation allow of my being considered an employer
or permit me to assume the costs that a decision by you that I am
an employer would impose on me.
It was solely in order to be of help to some of my attendants
who had trouble managing their budgets that in 1998 I decided to
make source deductions. At that time I was unaware of the
additional costs to me that this would create, or of the time it
would take to produce the required statements.
[4] The appellant, as well as the
workers, testified. Subparagraphs 4(a) to 4(j) and 4(l)
to 4(p) of the Reply to the Notice of Appeal were admitted.
Concerning the wording of subparagraph 4(e), the appellant
explained that, on returning to work, he no longer performed the
duties he had performed before his accident. With respect to
subparagraph 4(k), which the appellant denied, the supplies and
equipment allegedly not furnished by the appellant included items
for personal hygiene procedures, such as catheters, mattress pads
and other medical supplies, which were provided or paid for by
the Société de l'assurance automobile du
Québec (''the SAAQ'').
[5] The decision concerning the
assessment appealed from is dated May 25, 2000 and was
produced as Exhibit I-5. The assessment was produced
as Exhibit I-3.
[6] The workers each received a
decision by the Minister stating that they were employees of Mr.
Daniel Poulin in 1999. The letters containing these
decisions, which were produced as Exhibit I-1, informed each
worker that if they disagreed with the decision concerning them
they had 90 days from the date of the letter to contest the
decision in writing, which none of the workers did.
[7] The decisions indicated that it
had been determined that the workers were each employees because
Mr. Daniel Poulin exercised control over them and their
work, as stated in the following terms:
[TRANSLATION]
- He sets your hours of
work.
- You yourself are required to
provide the services.
- You are required to follow
instructions regarding the work to be done and how to do it.
- You do not have to provide the
equipment or supplies required to do the work.
- You do not provide your
services as a self-employed worker.
[8] Exhibit A-1 is the
attestation of the costs incurred for personal home assistance.
In order to be eligible for reimbursement of the costs of home
assistance, the accident victim must provide to the SAAQ this
attestation signed by the victim and by the person who provided
the services. The attestation must indicate the duration of the
assistance, the amount of money received, and the person's
name, address, and social insurance number. The attestation form
clearly shows that the information provided on the application
may be checked by the SAAQ and will be forwarded to Quebec's
Ministère du revenu.
[9] The appellant explained that he
required from two to three hours of assistance in the morning.
This was followed by a 45-minute rest period and then came lunch.
In the afternoon, the appellant travelled by public transit to
his workplace, the Museum of Civilization, where he worked as a
tour guide for four or five hours. He then returned home, where
an attendant looked after him, leaving at around 7:00 p.m.
Someone then came from 11:00 p.m. to 1:00 a.m. to help him get to
bed and to provide other personal care.
[10] The appellant lives alone. He owns a
house and has a tenant living in the basement. He hires workers
through newspapers, through references from people he knows, and
through various agencies. The people hired must have relevant
education, or have taken the personal care attendant training
course, or be nursing assistants.
[11] According to the appellant, the
workers' schedule is determined by the appellant's needs.
A worker who does not report for work is not paid. In 1999, the
appellant paid Mr. Piersotte vacation pay.
[12] Mr. Piersotte holds a certificate as a
personal care attendant. He explained that such a certificate is
obtained after 630 hours in the classroom and 160 hours
of practical work. Mr. Piersotte stated that he began
working for the appellant on December 15, 1998. He worked
five days per week, from 8:00 a.m. to 1:00 p.m. and from 5:00
p.m. to 7:00 p.m., for a total of 40 hours per week. The
appellant determined Mr. Piersotte's hours of work.
Mr. Piersotte did not provide any equipment.
[13] Ms. Joseph is a personal care attendant
and a nursing assistant. Her hours of work were from 11:00 p.m.
to 1:00 a.m., seven days per week, and she also put in some hours
in the morning on weekends, for a total of approximately
35 hours per week.
[14] As for
Ms. Christine Paquette, a visiting homemaker, she
worked every other weekend for 15 hours, preparing meals and
doing housework. She did not receive vacation pay.
[15] Counsel for the appellant relied on
this Court's decision in an income tax matter
in Maurice v. Canada, [2001] T.C.J. No. 164 (Q.L.).
She referred to paragraph [2] of the reasons for that
decision, in which are set out the facts the Minister took into
consideration. Subparagraph (l) in the said paragraph [2]
indicates that the amounts received from the SAAQ must be
distributed to third parties in return for the assistance they
provide, and that those third parties must pay tax on that income
received-as compensation for services rendered-in the form of
either employment income or business income.
[16] On the basis of that statement of fact,
counsel for the appellant argued that the Minister may consider
persons providing assistance services to be self-employed workers
and not necessarily employees. She also argued that the appellant
did not exercise control over the workers. According to her, they
were skilled workers to whom the appellant was not in a position
to give instructions. Counsel was unwilling to make distinctions
between the working conditions of the individual workers in this
case, between Mr. Piersotte's working conditions and
those of Ms. Paquette, for example.
[17] Counsel for the respondent referred to
this Court's decisions in Philippe Grenon v. Canada
(Minister of National Revenue), [2000] T.C.J. No. 179
(Q.L.), and Claire Lafontaine c. M.R.N., an
April 27, 2001 decision by Judge Lamarre of this Court, and to
the Federal Court of Appeal decision in Canada (Attorney
General) v. Massicotte, [1989] F.C.J. No. 1140 (Q.L.).
[18] Counsel for the respondent pointed out
that the workers provided no equipment and were integrated into
the appellant's activities. Concerning the test of control,
he argued that the appellant dictated the duties to be performed
and that the workers were there to meet the appellant's needs
in accordance with the schedule set by the appellant. The
appellant determined the rate of pay. The workers themselves were
required to provide their services personally. Since they were
paid at an hourly rate, the workers had no chance of profit
or risk of loss.
[19] I quote the following passage from
Marceau J.'s reasons in Massicotte (supra):
For the initial conclusion drawn by the judge: The respondent
hired one Yvan Bernier to provide her with the assistance and
services that her handicapped condition required. An actual
contract existed between them. This being established, to dispute
that this was a contract of service, as seemed apparent and as
the minister had determined, it was necessary for the judge to
satisfy himself that there lacked the essential element of a
contract of that nature, namely the relationship of subordination
characterized by the control exerted by the recipient of the
services over the person providing them. We do not believe that
on the basis of the facts related by him, the judge could
conclude that the said relationship of subordination did not
exist here. In our opinion, such a conclusion was not justified
in law, whether by the respondent's handicap or by the fact
that the said Mr Bernier resided at the home of his employer, or
by his lapses in behaviour or his occasional acts of
insubordination, as none of these facts could have an
influence.
Conclusion
[20] In his Notice of Appeal, the appellant
states that he is neither carrying on a commercial business nor
in a legal position that would allow him to deduct the additional
payments he would have to make under the Act as an
employer. He also indicates that the reason he made income tax
deductions at source was to help one of his workers.
[21] On this point, it must be noted that
one need be neither in business nor entitled to deductions with
regard to workers' salaries for the workers to be considered
employees. What counts are the worker's working
conditions.
[22] The decision referred to by counsel for
the appellant was made under the Income Tax Act. The judge
ruled that the person providing the assistance-the mother of the
person with a disability-was neither an employee nor a
self-employed worker. I quote paragraphs 28 and 31 of the
decision in Maurice v. Canada (supra):
[28] Based on the test set out
in Wiebe Door Services, supra, the appellant was not an employee,
since she was completely independent in the way she did her work,
worked in her own environment with her own tools and was not in
any way part of a third party's business. Nor was the
appellant an independent contractor within the meaning of the
case law, mainly because, although she acted independently in
performing her work, she was not free to organize her time as she
saw fit due to her daughter's specific and continuous needs
and because her alleged potential profit was fixed in advance and
in no way depended on her own efforts.
[31] In the case at bar, the
appellant chose to assume responsibility for her daughter
herself, not for the pecuniary benefits she could derive
therefrom but rather to fulfil her obligation of support, rightly
considering that she was the person best qualified to look after
her child. The monetary benefits resulting from that maternal
family activity are no more taxable than profits from hobbies or
simply amounts that some people give to their non-working spouses
to attend to their family's various needs.
[23] Moreover, the conclusions by the judge
in the above case were drawn in the context of the Income Tax
Act. In addition, I must point out that the working
conditions of the appellant in that case were not at all similar
to those of the workers in the present case.
[24] This Court's decisions in
Grenon (supra) and Jeannine R. Houle c.
M.R.N., another April 27, 2001 decision, also have to do with
persons with disabilities who need assistance. Each of these
decisions requires that there be a relationship of subordination
between the person with the disability and the person hired to
perform certain duties according to a set schedule and for a set
rate of pay.
[25] Also, in the present case, the
description of the duties and the conditions of their performance
do not tend to indicate that the workers are in business.
Although the workers stated at the hearing that it was not they
who requested insurability, it must be noted that they did not
contest the decision of insurability once it was made. Not that
my decision would have been any different had they done so, but
the fact that they did not do so is an indication that these
workers did not consider themselves to be in business, but rather
thought of themselves as being in an employment situation.
[26] The appellant exercises control over
the workers. The workers have duties to perform that are
determined by the appellant, and they must perform those duties
themselves. Their schedule is set by the appellant for long
periods at a time. It is normal for the appellant to hire persons
who know how to perform the duties in question and provide the
required assistance. That does not make them self-employed
workers. We all know that most persons with diplomas are
employees, not self-employed workers. It is the appellant who
provides the equipment required for giving the assistance, even
though he is reimbursed for the cost of the equipment by the
SAAQ; the workers do not provide the equipment.
[27] No distinct argument has been made to
me about the individual workers' working conditions, which
could have been different in each case. I must therefore consider
the workers in the overall context of the appellant's
activities.
[28] On May 7, 1992, in
Attikamek-Montagnais Council v. Canada (Minister of National
Revenue), [1992] T.C.J. No. 271, I rendered a decision along
the same lines on a similar subject. My decision in Insurance
Corporation of British Columbia v. Canada (Minister of National
Revenue), [2000] T.C.J. No. 151 (Q.L.), although on a
different point, also had to do with an employee of a person who
had had an accident. The case law cited and the case law I have
referred to is consistent. According to that case law, the
attendants of accident victims, of persons with disabilities, and
of persons unable to live independently, who work under
conditions similar to those of the appellant's attendants,
are employees.
[29] The appeal is dismissed.
Signed at Ottawa, Canada, this 16th day of August 2001.
J.T.C.C.
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