Date:
20010628
Docket:
2000-2431-EI-
BETWEEN:
DIANE
LEFEBVRE,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Reasons
for Judgment
Charron,
D.J.T.C.C.
[1]
This appeal was heard at Montréal, Quebec, on April 20,
2001, for the purpose of determining whether the appellant held
insurable employment within the meaning of the Employment
Insurance Act (the "Act") from November 6 to 26, 1998,
when she was in the service of the Directeur
Général des Élections du Québec, the
payer.
[2]
In a letter dated March 24, 2000, the respondent informed the
appellant that the employment was not insurable since there was
no employer-employee relationship between her and the payer
during the period at issue.
Statement of Facts
[3]
The facts on which the respondent relied in making his decision
are set out in paragraph 5 of the Reply to the Notice of Appeal
as follows:
[TRANSLATION]
(a)
During the period at issue, the appellant rendered services to
the payer as secretary for a board of revisors.
(admitted)
(b)
The appellant was not regularly employed by the employer.
(admitted)
(c)
During the period at issue, the appellant rendered services under
the direction of the returning officer. (admitted)
(d)
The appellant rendered services to the payer at office 01 of the
electoral division of Lafontaine. (admitted)
(e)
On November 6, 1998, the worker received training from the payer.
(admitted)
(f)
On November 26, 1998, the appellant completed her report and
submitted it to the payer. (admitted)
(g)
During the period at issue, the appellant worked for the payer
for 203 hours. (admitted)
(h)
During the period at issue, the appellant received from the payer
the amount of $1,904. (admitted)
(i)
During the period at issue, the appellant worked less than 25
days for the payer. (admitted)
[4]
As indicated in parentheses following each subparagraph, the
appellant admitted the truth of all the facts alleged in the
subparagraphs of paragraph 5 of the Reply to the Notice of
Appeal.
Analysis
of the facts in light of the law
[5]
It must now be determined whether the appellant's activity is
included in the concept of insurable employment, that is, whether
a contract of employment existed.
[6]
Case law has set out four essential tests whereby a contract of
employment may be recognized. The
leading case is City of Montreal v. Montreal Locomotive Works
Ltd., [1947] 1 D.L.R. 161. Those tests are: (1) control; (2)
ownership of the
tools; (3) chance of
profit; and (4) risk of loss. In Wiebe Door Services Ltd. v.
M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal added
thereto the "degree of integration", but this list is
not exhaustive.
[7]
First, the Civil Code of Québec defines a contract
of employment as follows:
2085. 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.
[8]
However, subparagraphs 8(1)(c)(i) and (ii) of the Employment Insurance
Regulations provide that:
(1)
Subject to
subsections (2) to (4), the following employments are excluded
from insurable employment:
(c)
employment of a person by Her Majesty in right of Canada, the
government of a province, a municipality or a school board in
connection with a referendum or election to public office if the
person
(i) is not
regularly employed by that employer, and
(ii) is
employed by that employer in that employment for less than 35
hours in any year after 1998.
[9]
According to counsel for the respondent, [Translation] "the appellant worked less than 25
days. She began on November 6 and was trained on November 6. She
subsequently began working full-time on November 9 and stopped on
November 26, 1998. If we add it up, starting from the 6th to the
26th, it comes out to 20 days, which is therefore under 25
days."
[10]
Accordingly, the appeal is
dismissed and the determination of the Minister of National
Revenue is confirmed.
Signed at
Ottawa, Canada, this 28th day of June 2001.
D.J.T.C.C.
Translation certified
true on this 3rd day of December 2002.
Sophie
Debbané, Revisor
[OFFICIAL
ENGLISH TRANSLATION]
2000-2431(EI)
BETWEEN:
DIANE
LEFEBVRE,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeal heard
on April 20, 2001, at Montréal, Quebec, by
the
Honourable Deputy Judge G. Charron
Appearances
For the
Appellant:
The Appellant herself
Counsel for
the
Respondent:
Claude Lamoureux
JUDGMENT
The appeal is dismissed and the determination of the Minister is
confirmed in accordance with the attached Reasons for
Judgment.
Signed at
Ottawa, Canada, this 28th day of June 2001.
D.J.T.C.C.
Translation certified
true on this 3rd day of December 2002.
Sophie
Debbané, Revisor
[OFFICIAL
ENGLISH TRANSLATION]
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