Date: 19990603
Docket: 97-1557-UI
BETWEEN:
9010-7020 QUÉBEC INC.
(CRH MARKETING INC.),
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
BENOÎT GOSSELIN,
Intervener.
Reasons for Judgment
Lamarre, J.T.C.C.
[1] This is an appeal from a decision by the Minister of
National Revenue (the "Minister") according to which
Benoît Gosselin held insurable employment with the
appellant from November 18 to 26, 1996. In his decision, the
Minister determined that the employment was insurable because
there was an employer-employee relationship between
Mr. Gosselin and the appellant. The Minister relied on
paragraph 5(1)(a) of the Employment Insurance
Act (the "Act") in making his decision.
Facts
[2] In making his decision, the Minister relied on the facts
stated in paragraph 5 of the Reply to the Notice of Appeal
as follows:
[TRANSLATION]
(a) the appellant was incorporated in 1994 ;
(b) the appellant operated a telemarketing business;
(c) the appellant's clients were insurance brokers,
insurers, the Quebec Automobile Club (QAC) and merchants;
(d) the appellant hired the worker on November 22,
1996;
(e) the worker was required to sign an alleged subcontract in
order to work for the appellant;
(f) the worker was to solicit customers by telephone to renew
their automobile and home insurance or join the QAC;
(g) the appellant controlled the quantity and quality of the
worker's work;
(h) the appellant provided the worker with the names and
telephone numbers of persons to contact;
(i) the worker went to the appellant's premises to perform
his duties;
(j) the appellant had provided the worker with training;
(k) the appellant provided the worker with all the necessary
tools for his work;
(l) the worker had a fixed work schedule to meet, that is,
from 5:00 p.m. to 9:00 p.m.;
(m) the worker was paid at a fixed rate of $7 an hour;
(n) the worker could earn performance bonuses if certain
ratios were exceeded.
[3] Pierre Renzetti testified for the appellant as its
general manager. According to his testimony, the appellant
obtains telemarketing contracts from various clients such as
insurance brokers, the Quebec Automobile Club (QAC) and various
merchants. The appellant has a call centre with
56 workstations for the purpose of carrying out these
contracts. It rents the workstations (each consisting of a desk,
a headset and a computer) to telemarketing agents.
[4] The work of these agents consists in telephoning persons
on a list of names provided by the appellant's clients, in
order to recruit new members, renew memberships or propose new
arrangements to current members. According to Mr. Renzetti,
although an agent may recruit a person he knows well, agents
generally limit themselves to the list of names provided to them.
The appellant is responsible for ensuring that this list, which
belongs to its clients, remains confidential.
[5] The client determines the characteristics of the products
or services it markets and the agent must pass on to the various
persons contacted through telemarketing the information the
client wants to have transmitted. So, if memberships were sold at
prices other than those fixed by the client or if membership
forms were improperly completed, the client would stop awarding
contracts to the appellant.
[6] The appellant provides each agent with a tape recorder.
Mr. Renzetti testified that taping serves as a coaching aid
to enable agents to see what they can improve. However, he said
that agents were free to use it to record their telephone
conversations with the people they contacted. Thus,
Jean-Pierre Arcand, who worked as a telemarketing
agent for the appellant, said that he recorded himself if he
wanted to send the content of his conversation recorded on
cassette directly to the client instead of retranscribing the
information he had obtained. Mr. Renzetti moreover indicated
that the appellant checked to see whether the agents had
correctly entered the personal information of the various
applicants. He also mentioned that either he or
Richard Houle, a shareholder of the appellant, was present
in the appellant's premises and they updated the situation
with the agents if the latter did not keep them informed. Without
speaking of control, Mr. Renzetti said that he received a
report from each agent every week and that he gave priority in
renting the workstations to those who were most effective.
Indeed, the appellant benefited from obtaining the maximum number
of memberships.
[7] Agents must reserve a workstation at least one week in
advance. When they reserve, they choose the time slot that suits
them. These time slots are divided into work periods. Agents may
thus reserve a workstation from Monday to Friday from
8:45 a.m. to 4:15 p.m. or from 4:30 to 9:30 p.m.
They may also reserve Saturdays from 10:00 a.m. to
5:00 p.m. According to the availability sheet completed by
Mr. Gosselin, entered as Exhibit A-4, agents are
asked to establish their schedules precisely, so that they are
able to adhere to them in order to meet the expectations of the
appellant's clients. It is also stated on the availability
sheet that [TRANSLATION] "any absence automatically entails
the loss of an office which could have been occupied by a
co-worker".
[8] According to Mr. Renzetti, agents who rent
workstations may also use them for their own purposes, and he
cited Giroflée Ash as an example. Ms. Ash
testified that she rented a workstation from the appellant in
order to look for clients for her own services. She said she also
accepted mandates from the appellant. To do this, on
October 7, 1996, she had to sign a contract with the
appellant of the same type as that which Mr. Gosselin signed
on November 22, 1996 (see Exhibits A-3 and
A-12). Ms. Ash's contract, entitled [TRANSLATION]
"Subcontract", reads as follows:
[TRANSLATION]
1. The subcontractor [the agent] and CRH [the appellant] agree
on the following points:
(i) Mandate:
The subcontractor shall engage in promoting the goods and
services of CRH's clients to merchants and consumers by
telephone (making appointments, direct sales, conducting surveys,
identifying potential customers, etc.). The subcontractor is
required to meet the qualitative and quantitative objectives for
each of the mandates given.
(ii) Conditions:
The subcontractor is a self-employed worker and may accept
other mandates from other companies provided they do not conflict
with those given by CRH. He may have himself replaced by a person
of his choosing and may perform his mandate during the hours and
in the locations he finds convenient. He is responsible for
submitting his invoice to CRH once a week. The subcontractor is
responsible for his expenses. The subcontractor is not an
employee of CRH; he is not entitled to vacation, sick days or any
other fringe benefits. CRH will make no deductions nor will it
withhold any tax. The subcontractor shall take advantage of the
registration exemption if his annual income is less than $30,000
or register for the GST and the QST if it is greater than
$30,000.
(iii) Fee structure:
The subcontractor is paid by the hour in accordance with the
attached schedule, or by the piece in the case of special
contracts. The subcontractor may receive a supplement of $1.25 an
hour for performing his work and producing his reports on
computer in D.B.F. mode for any contract providing for
remuneration by the hour. Where equipment is available, the
subcontractor may rent a computer from CRH at the rate of $1 an
hour. The subcontractor shall submit his invoice with the reports
and supporting documentation to CRH not later than Monday of the
following week. CRH will pay the subcontractor's invoice on
Thursday of the following week, deducting any rental fees.
(iv) Termination:
The subcontractor and CRH may terminate this contract by
giving 48 hours' notice in writing, except where the code of
ethics has been violated, in which case it will be terminated
without notice.
(v) Guarantee:
The subcontractor guarantees that the information transmitted
is accurate.
[9] According to the pay schedule appended to the contract,
agents are paid $7 an hour and receive a sales bonus calculated
in accordance with a certain ratio (which is computed based on
the weekly total of new members divided by the weekly total of
soliciting hours). Mr. Renzetti said that if a worker did
not equal the ratio, his contract was not renewed, but that this
did not prevent that worker from renting the workstation for his
own purposes.
[10] Ms. Ash subsequently signed a second contract on
January 12, 1997. The terms of this contract are appreciably
the same as those of the first, except that it specifically
states that the contractor (the agent) has no obligation to
attend meetings or training sessions or to follow a call script
to the letter. It also states that the contractor has no
immediate supervisor or controller. The client's rights and
the duties of the contractor and the appellant are also described
and read as follows:
2.00 CLIENT'S RIGHTS:
2.01 The clients supply their clientele lists or prospect
lists. They are the sole owners of the lists, which must be kept
confidential.
2.02 The clients decide which territories will be covered and
in what sequence.
2.03 The clients supply or accept call scenarios and expect
that the information transmitted will be clear and accurate.
2.04 Payments are always made to the order of the client.
2.05 The clients own all advertising material.
2.06 The clients decide on the format or structure of the
computer file with which they exchange data.
2.07 The clients are directly represented in the sense that
the calls are made on the client's behalf.
3.00 CONTRACTOR'S DUTIES:
3.01 The contractor is required to promote the clients'
goods and services to merchants or consumers by telephone for the
purpose of making a direct sale, setting an appointment,
conducting a survey or identifying a prospect, etc.
3.02 The contractor is required to carry out his contract
within the time period agreed upon.
3.03 The contractor is required to note the client's files
in the required format.
3.04 The contractor is required to represent the client in a
manner consistent with the ethics of a telemarketing
professional, in accordance with the rules of the CRTC code of
ethics for direct marketing.
3.05 The contractor is required to comply with the general
rules of conduct set by the contractors and CRH (no smoking, rest
areas, etc.).
3.06 The contractor is required to submit his report and
invoice on a weekly basis.
4.00 CRH'S DUTIES:
4.01 CRH is required to negotiate mandates with clients
and to see that they are performed.
4.02 CRH is required to prepare all the computer
equipment for the execution of TM campaigns.
4.03 CRH is required to ensure that the equipment
rented by the contractors is ready, available and in good working
order.
4.04 CRH is required to exchange information with the
clients daily.
4.05 CRH is required to transmit information to the
contractors on the conduct of the TM campaigns.
4.06 CRH is solely responsible for telephone expenses,
rent expenses, business taxes and administrative and other
expenses.
4.07 CRH is solely responsible for advances to and
adjustments regarding the contractor.
5.00 TERM OF CONTRACT:
5.01 The term of the contract is one week starting on Monday
and ending the following Saturday.
5.02 The contract is automatically renewable every week on the
same terms and conditions as set out herein.
6.00 TERMINATION:
6.01 It is agreed that either of the parties may terminate
this contract at any time simply by providing written notice to
the effect that the party is not fully satisfied.
6.02 Where the contractor is not fully satisfied, he may
request, in writing, that the contract be terminated immediately.
Equipment rental will not be billed for the rest of the period
and a 10% termination allowance will be added to the balance for
the week. Adjustments and payments will be made on the following
Thursday.
7.00 TERMS OF CONTRACT:
7.01 The contractor reserves a workstation rental slot in
accordance with his availability and the mandates to be
subcontracted.
7.02 The parties agree to make their availability known on the
preceding Monday and that equipment reservations and the mandates
to be subcontracted will be determined no later than
5:00 p.m. on the preceding Tuesday.
8.00 EQUIPMENT RENTAL:
8.01 Analog telephone, headset (paper list)
(Not available at home)
Plan A $0.50
8.02 Analog telephone, headset, computer with fax/modem,
automatic dialing and TM software
Plan B $1.00
8.03 Analog telephone, headset, computer with fax/modem,
automatic dialing by sequential call generator and TM
software.
Plan C $2.00
9.00 CODE OF CONDUCT:
9.01 Smoking is permitted only in the area reserved for that
purpose.
9.02 All food and drink must be consumed in the cafeteria.
9.03 Be careful not to disturb the concentration of the other
contractors in the soliciting rooms.
9.04 Be careful with the equipment.
10.00 INTERPRETATION:
10.01 As the context requires, the singular shall be
interpreted as including the plural and the masculine as
including the feminine and neuter.
10.02 The schedules to this contract form an integral part
hereof.
[11] Mr. Renzetti testified that the stated
contractor's duties applied to all the agents. These duties
were the same under the old contract. Mr. Gosselin received
training four hours a day for three days. This training was given
by a partner in the appellant under the supervision of a QAC
representative. It would appear that each agent must pay the
workstation rental expense even during training. The weekly
report provided for Mr. Gosselin (Exhibit A-5)
for the week of November 18 to 23, 1996 shows his hours of
training and the hours during which he was present. However, the
invoice attached to these attendance sheets was not
completed.
[12] Aida Hamaoui,
Geneviève Côté and Louise Sauvage
also testified. They all said that they had been hired by the
appellant to do telemarketing. They stated that they had no fixed
schedule to meet and were hired by the week.
[13] Ms. Côté said she had a contract with
the appellant to sell subscriptions to the newspaper Le
Devoir. She worked on Saturdays and had to reserve her
workstation one week in advance. If she reserved a workstation,
she lost her deposit if she did not show up. However, this did
not occur in her case since when she was not available she always
had herself replaced by a person already employed by the
appellant. She stated, however, that she could have had herself
replaced by another person who did not necessarily have to be
employed by the appellant. She completed a sales invoice and was
paid based on that. She had previously performed the same work as
a direct employee of the newspaper Le Devoir. With Le
Devoir her schedule was more settled and she was on a
salary.
[14] Ms. Hamaoui did not rent a workstation and worked
for the appellant at her home using the lists supplied by the
appellant. She billed by the number of sales made and was paid on
a commission basis. Ms. Hamaoui filed a claim for
unemployment insurance when she stopped working and her
employment was ruled not insurable.
[15] Pierre Fecteau, an engineer, also testified. He
gives telemarketing contracts to the appellant in the form of
very specific mandates, providing databases belonging to his own
customers. He himself trains the agents hired by the appellant
and he does so at his own expense. Despite this fact, he said
that each agent gathered information in his own way (data
collection was thus not very standardized) and the information
obtained was not always reliable. He could not give specific
instructions with respect to the agents' work schedules, but
required that the agents present the product correctly.
Mr. Fecteau testified that it was the appellant, not he, who
had control over the telemarketing agents.
[16] Alain Lemay, the appellant's accountant,
testified that the appellant's business had a turnover of
$1 million. He said that the business was viable simply on
the basis of the workstation rentals, which, at up to $2 an hour,
could bring in as much as $30,000 a month, whereas the fixed
costs for the workstations were between $12,000 and $13,000 per
month. Mr. Lemay did not have the appellant's financial
statements with him and was unable to confirm the percentage of
profits generated by the rentals and the telemarketing.
[17] Fabia Grigolo, who also worked for the appellant
during the period from October 30, 1996 to June 6,
1997, testified as well at the respondent's request. She said
she had been hired by the appellant following a two-hour trial
period and that she had received training. The appellant required
her to work at least 100 hours in order to be paid during
the training and that is what she did. The appellant obliged her
to sign an employment contract as though she were a self-employed
worker. She indicated the hours when she was available and had to
stick to the hours she had chosen. She said she worked regularly
25 to 30 hours a week, except during a two-week period in
May 1997 when she went away on vacation on her own initiative and
at her own expense.
[18] Ms. Grigolo testified that she contacted the people
on the list provided by the appellant and that if she contacted
other persons her supervisor subsequently checked and approved
them. She always worked on the appellant's premises and
received basic remuneration of $7 an hour, plus a commission
based on the number of customers recruited. She could also earn a
bonus. To get paid, she had to complete time sheets indicating
the number of hours she had worked and listing her sales. She
thus had to record the number of subscribers she had recruited.
She stated that she had tried to maximize her sales and that if
she did not produce enough she could be dismissed. She also
mentioned that she had never had anyone else perform her work in
her stead and that the same was true of the other workers.
According to her, if they did not go in to work, they were
dismissed without pay. Similarly, contrary to what
Messrs. Renzetti and Arcand said, Ms. Grigolo stated
that all the workers were monitored by telephone, which enabled
the appellant to verify whether the agents were complying with
sales standards.
[19] In addition, although her contract stipulated that she
was to pay $1 per hour for the rental of a workstation,
Ms. Grigolo said that this amount was ultimately not
withheld from her pay and that she did not have to pay the rental
if she did not work. She stated that she received $7 an hour, not
$6. According to the invoices she submitted to the appellant
(Exhibit A-1), an amount for rental corresponding to
$1 per hour was deducted. However, the hourly rate of pay
indicated is $8, not $7 as stated in the contract (see
Exhibit A-2).
[20] Lastly, Diane Charette, an appeals officer with
Revenue Canada, testified. After talking with
Messrs. Gosselin and Renzetti, she came to the conclusion
that the former was an employee of the appellant. The facts
leading her to this decision were as follows:
- the employment contract gave the appellant the option of
laying off the worker;
- the appellant set the wage schedule;
- the worker was paid on the basis of his hours of work; these
hours had to be grouped together in the time slot chosen by the
worker, with the appellant offering two time slots from Monday to
Friday and a single slot on Saturday;
- the appellant gave each worker training on the product for
sale and on how to enter data in the computer; the appellant thus
in a way controlled the work method used by the worker;
- according to Ms. Grigolo, all the workers'
telephone conversations were recorded, and it was therefore
possible for the appellant to trace the agent who made a call in
the event of a complaint and to discuss the matter with the agent
if necessary;
- in order to be paid the worker had to report the number of
hours he worked and the number of sales he made;
- the worker received a list of persons to contact directly
from the appellant, not from the appellant's client.
[21] In Ms. Charette's view, all this indicates that
the appellant exercised extensive control over the work performed
by the workers. As for Mr. Gosselin, he always worked at the
appellant's place of business and was paid a wage of $7 an
hour, which indicates that he had virtually no chance of profit.
In Ms. Charette's opinion, the fact that he paid a
rental fee of $1 an hour was not a sufficient ground for saying
that the worker was exposed to a risk of loss. The worker did not
invest in the appellant's business.
[22] Mr. Gosselin did not testify. However, in two
letters entered in evidence as Exhibits A-6 and
A-7, Revenue Canada first took the position that
Mr. Gosselin and Ms. Grigolo did not hold insurable
employment with the appellant. The same decision was made
respecting Pierrette Desmarteaux, who had also worked as a
telemarketing agent for the appellant (Exhibit A-8).
Mr. Gosselin appealed the decision to the chief of appeals
at Revenue Canada, who reversed the initial decision and held
that Mr. Gosselin's employment with the appellant was
insurable. This is the decision from which the appellant appealed
to this Court and which is the subject of the instant case.
Analysis
[23] For his employment to be insurable during the period at
issue, Mr. Gosselin had to be employed under a contract of
service, as required by paragraph 5(1)(a) of the Act.
To determine whether that employment was insurable, the criteria
cited in Wiebe Door Services Ltd. v. M.N.R., [1986]
3 F.C. 553, namely control, ownership of the tools, chance
of profit and risk of loss as well as the integration or
organization test—that is, whether the person is working
for his own business or for that of the person who hired
him—must be analyzed in light of the whole of the various
elements which constitute the relationship between the
parties.
[24] This is a borderline case involving elements of a
contract of service and other elements relating to a contract for
services.
[25] As regards control, which is an element of some
importance in civil law, I, like Ms. Charette, am of the
opinion that the appellant definitely exercised control over its
agents' work. In my view, that control was exercised quite
regularly. Indeed, Mr. Renzetti testified that he or
Richard Houle, a shareholder of the appellant, was on site
and regularly inquired into the work performed by the agents.
Similarly, although there was some contradiction among a few
witnesses respecting the recording of the agents' telephone
conversations, Mr. Renzetti did say that recording the
conversations enabled the appellant to determine what
improvements could be made and to provide some coaching.
[26] It is true that some agents, like Ms. Hamaoui,
worked at home and were to some extent subject to less control
than the agents working on site. Still, those agents were to all
intents and purposes limited to the lists supplied by the
appellant. The appellant was responsible for keeping those lists
confidential. It was also responsible for the agents since it
risked losing contracts if they did not carry out the
instructions given by the clients or failed to meet certain
deadlines.
[27] The agents had also received training for which they were
paid if they worked a minimum number of hours. The agents
moreover had to report the number of hours they worked and the
number of sales they made if they wanted to be paid. In this
sense, the appellant definitely had control over the work
performed by its agents and over the way in which they
represented its clients in dealing with the persons contacted. If
in fact the agents were self-employed workers, the appellant
would not have had to give them training for which they were even
paid.
[28] Some witnesses did say that they were allowed to have
themselves replaced for the purpose of performing their work.
This is moreover provided for in the contract. That in itself is
an important consideration militating in favour of the argument
that the contract was a contract for services.[1] Ms. Grigolo stated that the
agents could not have themselves replaced. She also stated,
contrary to the testimony of other witnesses, that if the agents
did not report for work at the times they had reserved, they were
dismissed. Mr. Renzetti testified that he gave priority to
agents who made the most sales. Ms. Côté said
that, in point of fact, if ever she had someone replace her, it
was always another agent who worked for the appellant.
[29] The evidence did not actually show that none of the
agents who testified had had himself replaced by someone who had
not first been trained by the appellant. I therefore conclude
that the fact of being permitted to find a replacement for
oneself cannot play an important role here. The weight of the
evidence suggests instead that the appellant exercised control
over the work of these agents or of those who might replace
them.
[30] Remuneration was dictated by the appellant. The agents
received hourly wages calculated on the basis of the number of
hours worked and they had to meet sales quotas if they wanted
their contracts to be renewed and to earn bonuses. In addition,
at the appellant's request, the agents had to bill weekly for
the number of hours they worked and payment was made on the same
day every week. Furthermore, they were not entitled to any fringe
benefits or paid vacation. Their chance of profit rested on the
sales bonuses they could receive. Their risk of loss was limited
to the absence of remuneration if they did not work and to the
possibility that their contracts might not be renewed.
[31] In my view, these elements do not constitute a sufficient
basis for considering these agents as self-employed workers.
Agents were assured a guaranteed income ($7 an hour) for their
hours worked. Sales bonuses were added to that if they met a
certain sales quota. If the agents performed their work poorly,
it was the appellant who bore the risk (loss of contracts with
its clients and lower profits), not the agents, who were in any
event paid for their hours of work even if their contracts might
not be renewed.
[32] Furthermore, I note that, in the second contract signed
by Ms. Ash, the appellant granted a 10% termination
allowance in the event of termination of the contract. Although
this does not appear in the contract signed by Mr. Gosselin,
it is another indication that the appellant treated its agents as
employees, not as persons working for themselves.
[33] As regards the tools, the appellant emphasized that the
agents had to rent the equipment. This could indeed be considered
as constituting an element of a contract for services. However,
the document entered as Exhibit A-1 shows in
Ms. Grigolo's case that she was paid a net hourly wage
of $7. According to her contract (Exhibit A-2), if she
had paid for the equipment rental, she would have had to receive
a net hourly wage of $6. If that was the case for
Ms. Grigolo, one can reasonably wonder whether all the
agents did not receive the same treatment.
[34] It is also not clear from the evidence that the agents
had to pay the equipment rental if they did not use the
workstations they had reserved. Based on the contradictory and
incomplete evidence on this point, I cannot attach a great deal
of importance to this factor as supporting the argument that the
contract was a contract for services. Furthermore, the new
contract signed by Ms. Ash clearly states that if the agent
terminates his contract, he will not be required to pay the
equipment rental.
[35] Mr. Lemay tried to explain that the appellant could
survive solely on the equipment rental, meaning to suggest, I
imagine, that the agents' work did not form an integral part
of the appellant's business. Unfortunately I cannot attach
any importance to this factor. The approximate figures that
Mr. Lemay gave (he mentioned rental fees of $2 an hour,
whereas most of the contracts submitted provided for $1 an hour)
were not corroborated in any way by the appellant's financial
statements, which were simply not entered in evidence. I
therefore cannot assign any probative value to this
testimony.
[36] Moreover, the question of organization or integration
must be considered from the standpoint of the employee, not that
of the employer. Even if telemarketing revenue was less than that
from workstation rental, the agents' work was nevertheless
necessary to the operation of the appellant's business. As
MacGuigan J. stated in Wiebe Door Services Ltd,
supra, at p. 563:
. . . We must keep in mind that it was with respect to the
business of the employee that Lord Wright [in Montreal v.
Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161]
addressed the question "Whose business is it?"
[37] As to the integration of the agents' activities into
the appellant's business, I am of the opinion that agents
such as Mr. Gosselin acted as employees of the appellant,
not as persons working for themselves. It is true that these
agents could go to work for others outside the time slots during
which they worked for the appellant. However, the contract signed
by the agents clearly states that they may "accept other
mandates from other companies provided they do not conflict with
those given by [the appellant]". Agents could choose to work
full time or part time for the appellant, but, regardless of
their choice, they had to fulfil their undertaking to the
appellant within the time slots they had chosen. This is in fact
what the document completed by Mr. Gosselin and filed as
Exhibit A-4 appears to indicate. It clearly states
that agents must determine their schedules precisely, so as to be
able to adhere to them, and that any absence automatically
entails the loss of an office which could have been occupied by
another co-worker. This seems to me to be fairly clear evidence
that the days and hours of work were integrated into and
coordinated with the appellant's operations.
[38] Lastly, the fact that the appellant drafted contracts
between itself and its agents in which the agents were described
as self-employed workers does not change the actual and factual
situation as between the parties to the contracts. In Irving
Edward Orton v. M.N.R., N.R. 9, Cattanach J. wrote,
at p. 3:
The fact that the parties to a contract refer therein to a
certain relationship existing between them, as was done in
paragraph 5 of the contract between the appellant and Public
Works, is not conclusive of the existence of that relationship.
The parties simply by saying something is what it is not cannot
convert that something into something other than it is.
On this matter, MacKenna, J. observed in Ready Mixed
Concrete v. Minister of Pensions1 at
page 439:
. . . that the question whether the relation between parties
to a contract was that of master and servant or otherwise was a
conclusion of law dependent on the rights conferred and the
duties imposed by the contract; and that if facts were such that
the relation is that of master and servant, it was irrelevant
that the parties had declared it to be something else.
________________
1 (1968) All E.R. 433.
[39] In closing, I wish to emphasize that I have reviewed the
recent decision in Vulcain Alarme Inc. v. M.N.R. rendered
by the Federal Court of Appeal at Montréal on May 11
1999 (file number A-376-98), and dealing with the
procedure for distinguishing between a contract of service and a
contract for services. I find that the facts in Vulcain
are quite different from those in this appeal and that the
Federal Court of Appeal's conclusion in Vulcain does
not apply to the instant case.
[40] Having regard to all these elements, which were analyzed
in the overall context of the relationship between the parties, I
find that the weight of the evidence is rather to the effect that
the appellant's agents, including Mr. Gosselin, were
employed by the appellant under a contract of service. For these
reasons, the appeal is dismissed and the Minister's decision
is confirmed.
Signed at Ottawa, Canada, this 3rd day of June 1999.
"Lucie Lamarre"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 31st day of March
2000.
Erich Klein, Revisor
Email this Content