[OFFICIAL ENGLISH TRANSLATION]
Date: 20010626
Docket: 2000-772(EI)
BETWEEN:
CAROL LAGACÉ,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lesage, D.J.T.C.C.
[1] This appeal was heard at
Québec, Quebec, on May 22, 2001.
[2] On November 16, 1998, the
appellant asked the Minister of National Revenue (the "Minister")
for a ruling on whether he had held insurable employment within
the meaning of the Employment Insurance Act (the
"Act") from January 2 to December 31, 1997, while working
for Gestion Carol Lagacé, the payer.
[3] In a letter dated November 22,
1999, the Minister informed the appellant of his decision that
the appellant had been working for his business "Gestion
Carol Lagacé - Pavillon de la Jeunesse" during the
period at issue. There was therefore no employer-employee
relationship.
[4] By notice of appeal filed on
February 14, 2000, the appellant instituted an
appeal before this Court from the Minister's decision of
November 22, 1999.
[5] The truth of the Minister's
assumptions of fact and conclusions enumerated in the following
subparagraphs of paragraph 5 of the Reply to the Notice of Appeal
was admitted by the appellant at the hearing:
[TRANSLATION]
(a) From 1986 to
1996, the appellant worked as manager for Hippobec, an
independent business that managed the restaurants at the
Expo-Québec pavilions and that was under contract with the
Commission de l'Exposition Provinciale (now called
Expo-Cité).
(b) The Commission
de l'Exposition Provinciale (hereinafter called the
Commission) owns a cafeteria that includes a bar and two snack
bars located in the Pavillon de la Jeunesse, a restaurant counter
located in the Pavillon de l'Agriculture and a restaurant
counter located in the exposition's Casino du Parc in Quebec
City.
(c) In late 1996,
the Commission did not renew its contract with Hippobec and the
appellant agreed to take on the contract for managing the
restaurants located in the Pavillon de la Jeunesse, the Pavillon
de l'Agriculture and the central mall.
(d) On January 10,
1997, the appellant registered with l'Inspecteur
Général des Institutions Financières under
the firm name "Gestion Carol Lagacé"; he was the payer's
sole owner.
(e) On March 10,
1996, an agreement was signed between the Commission and the
payer (signed by the appellant as president) specifying the
mandate entrusted by the Commission to the payer.
(f) The
agreement signed between the parties specified:
[TRANSLATION]
The Commission hereby entrusts the mandatary (the payer) with the
exclusive right and the necessary powers to maintain and improve
the premises described hereinafter.
The payer undertakes to promote, manage, operate, maintain and
improve the premises with a view to producing a maximum amount of
revenue therein.
The payer shall exercise the rights and powers arising out of
this agreement in its own name and in no case in the Commission's
name.
(g) In signing his
contract with the Commission, the appellant provided a $5,000
guarantee to undertake to manage the restaurants during the
entire year of 1997.
(i) All of the
restaurants' revenues were deposited in the payer's bank
account.
(k) The 1997 season
was transitional and much less busy; the payer managed the
restaurants for only a few days in January and February, during
the ten days of Expo-Québec, and for two or three small
banquets in December.
(l) The
appellant estimated that he had worked between 30 and 80 hours a
week and that he had worked approximately 2,000 hours during the
season.
[6] A written agreement was signed on
March 10, 1996. The 15-page document sets out in detail the
parties' rights and obligations between the mandator, the
Commission de l'exposition provinciale de Québec, and
the mandatary, Gestion Carol Lagacé - Pavillon de la
Jeunesse (Exhibit A-1).
[7] This agreement sets out the
mandator-mandatary relationship of the parties in detail,
including the remuneration of the mandatary, the appellant, as
follows:
[TRANSLATION]
SECTION V - CONSIDERATION
1. In
consideration of the performance of this mandate, the COMMISSION
shall pay the following remuneration to the MANDATARY:
(A) A basic amount
established over a period of twelve (12) months and set at
$6,000.00 for 1997, payable in four equal instalments, on March
1, June 1, September 1 and December 1, 1997, this total basic
amount to be established in proportion to the number of months
covered by this agreement in 1997.
(B) In addition to the
amount indicated in paragraph A, the MANDATARY shall receive a
percentage of the net operating profits, as follows:
on the first $25,000 of net
profit
4%
net profit of $25,001 to
$50,000
5%
net profit of $50,001 to
$100,000
6%
net profit over
$100,001
7%
This portion of the profits shall be paid to the MANDATARY on or
before December 31, 1997, for the portion of the 1997 fiscal
year. In addition, the MANDATARY shall pay the portion of the net
operating profits owing to the COMMISSION in four (4) equal
instalments payable on March 1, June 1, September 1 and December
31, 1997.
This agreement was honoured by the parties.
[8] The appellant did not make a fixed
income; it varied according to the business's results, which were
not guaranteed; the remuneration was uncertain and subject to
variations that could be significant in one direction or the
other.
[9] This was not a salary agreed upon
for a job requiring that the appellant work a certain number of
hours since he was working at his own business, which was the
carrying out of the agreement entered into between the mandator,
the Commission, and the mandatary, the appellant.
[10] The appeal is dismissed and the
Minister's decision is confirmed.
Signed at Sillery, Quebec, this 26th day of June
2001.
D.J.T.C.C.
Translation certified true
on this 27th day of February 2003.
Sophie Debbané, Revisor
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