REASONS FOR JUDGMENT
Jorré J.
[1]
The appellant is appealing
from three assessments, all of the notices of which are dated September 2,
2008, for the 2005, 2006 and 2007 taxation years. The three assessments were for employment insurance
premiums respecting 189 people whose names are listed in Appendix A
of the Reply to the Notice of Appeal. The Minister’s
position is that these people were engaged in insurable employment.
[2]
Riad Brahimi is the sole
shareholder of the appellant. As
part of its activities, the appellant sends nurses to work on the premises of
its clients such as CHSLDs, CLSCs, the Manoir Outremont and Château Vincent d’Indy
as well as some private homes. At CLSCs, the
nurses often worked on the Info-Santé telephone line.
[3]
The fact that this is a
placement agency is not disputed.
[4]
The relevant provision of
the Employment Insurance Act is section 5, which at the time read as
follows:
5(1) Subject to
subsection (2), insurable employment is
. . .
(d) employment
included by regulations made under subsection (4) or (5); . . .
[5]
Paragraph 6(g) of the
Employment Insurance Regulations was adopted under these provisions and
sets out the following:
6 Employment in any of
the following employments, unless it is excluded from insurable employment by
any provision of these Regulations, is included in insurable employment:
. . .
(g)
employment of a person who is placed in that employment by a placement or
employment agency to perform services for and under the direction and control
of a client of the agency, where that person is remunerated by the agency for
the performance of those services.
[6]
Section 7 of the
Insurable Earnings and Collection of Premiums Regulations should also be
taken into consideration:
7. Where a person is
placed in insurable employment by a placement or employment agency under an
arrangement whereby the earnings of the person are paid by the agency, the
agency shall, for the purposes of maintaining records, calculating the person’s
insurable earnings and paying, deducting and remitting the premiums payable on
those insurable earnings under the Act and these Regulations, be deemed to be
the employer of the person.
[7]
Because it is not disputed
that this is a placement agency, that the various places where the nurses
worked were the appellant’s clients and that the people in question were
remunerated by the appellant, the key issue is whether the nurses in question
provided services to the clients “under the direction and control of . . . [the] client[s]” pursuant to paragraph 6(g) of the Employment
Insurance Regulations.
[8]
The appellant considers the
nurses to be self-employed.
[9]
Five people testified,
including Mr. Brahimi, the owner of the appellant.
[10]
The Minister made the following assumptions of
fact:
[Translation]
(a) The
appellant was incorporated on February 26, 2002;
(b)
Riad Brahimi was the sole shareholder of the appellant;
(c) The appellant operated a placement agency;
(d) The appellant hired nursing staff for its
clients;
(e) Among the appellant’s clients were CLSCs such as
Rosemont/St-Michel and CHSLDs such as those of Lachine, LaSalle,
St-Charles-Borromée, Jean De La Lande and Armand Lavergne;
(f) The appellant had a list of nurses;
(g) At the request of one of its clients, the
appellant contacted one of the workers on its list and asked if he or she would
provide the services requested by the client;
(h) The workers agreed of their own free will to
work on the appellant’s clients’ premises at a pay rate agreed upon with the
appellant;
(i) The workers provided services on the appellant’s
clients’ premises;
(j) The workers had to follow the work schedule
provided by the appellant’s client;
(k) The workers had to provide the services
requested and were supervised by the appellant’s client;
(l) The appellant paid the workers by cheque based
on the number of hours worked for the appellant’s client;
(m) The workers did not provide services to the
appellant;
(n) The
workers provided services to the appellant’s clients under the supervision and
control of the appellant’s clients.
Testimony of Riad Brahimi
[11]
The appellant was in
business from 2002 to 2008.
[12]
The appellant operated as follows: A client would contact Mr. Brahimi
and ask whether the appellant could provide one or more nurses to work a shift
on the client’s premises. The appellant had a
list of potential workers, and Mr. Brahimi would contact the workers to
find nursing staff available and ready to work the shift.
[13]
All of the workers are
members of the Ordre des infirmières et infirmiers du Québec (the Order) or of
the Ordre des infirmières et infirmiers auxiliaires du Québec.
[14]
The contacted worker was
entirely free to accept or decline the proposed shifts; he or she could choose
to accept a shift while declining another shift, but once the worker told the
appellant that he or she would do the work, he or she had to follow the
assigned schedule.
[15]
Mr. Brahimi managed
everything by telephone. He
did not travel to see the workers on the clients’ premises. The appellant acted as an intermediary between the workers
and the client. The appellant paid the
workers, and the clients paid the appellant. The
appellant and the workers had a verbal contract.
[16]
According to Mr. Brahimi,
all of the workers were self-employed, except for two or three workers. Thus, they worked when they wanted and
had no contract with the clients. They negotiated
their salaries, and they chose where they wanted to work as well as their
schedule.
[17]
The appellant sent T4A slips
to the nurses whose services it had retained. The appellant made no source deductions for the workers who
received T4As.
[18]
However, since the decision
of Justice Lamarre (as she then was) regarding some individuals placed by the
agency before 2005,
the appellant sent out T4 slips to the workers who worked for Info-Santé.
[19]
All the nurses had business
cards and their own liability insurance.
[20]
According to Mr. Brahimi,
the workers planned their own tasks and received no orders. The appellant did not have liability
insurance to cover the workers. The clients
did not supervise the nurses except for quality control. According to Mr. Brahimi, [Translation] “the nurses supervise themselves, Your Honour,
and especially, especially for the coordinators”.
[21]
The workers were not evaluated
by the clients. They had no
protocol to follow except what was written in the patients’ files.
[22]
The clients could not decide
whether the workers would come back the following day. They could not impose disciplinary measures on them.
[23]
The only restriction the
workers had regarding the way they worked was to ensure they were complying
with the Order’s regulations. Otherwise,
they could do as they saw fit when providing their services.
[24]
The workers also had to
follow the schedule and work on the floor they had agreed on with the client. They could not leave during their shift,
unless there was an emergency. If the worker was unable to work his or her
shift because of illness, the worker had to inform the appellant and both the
worker and the appellant would try to find a replacement.
[25]
The work was on-call; thus,
the workers could decline.
[26]
The workers were free to
take a break and to choose their meal times provided that the patients’ safety was
ensured.
[27]
The nurses worked on the
clients’ premises. They did
not need to sign in when they arrived.
At the end of their shift, the workers had to make a
report for the worker who would be taking the next shift.
[28]
The workers were in charge
of their own professional development. They did not take part in any meetings on the client’s
premises. Rather, they took courses given by
the Order.
[29]
They nurses did not work
exclusively for the appellant.
[30]
Regarding the work tools,
the workers provided their own scrubs and shoes. They also brought their own stethoscopes, thermometers, spirometers
and blood pressure monitors for hygiene reasons even though these tools were available
on site.
[31]
It is important to note that,
although he has worked as a nurse in the past, Mr. Brahimi managed the
appellant during the period at issue. He was not on the clients’ premises with the workers
provided by the appellant.
Other testimony
M.C. Douyon
[32]
Ms. Douyon has been a nurse
since 1989. She was hired by
the appellant to work at CLSCs (Info-Santé). The
work she obtained through the appellant was exclusively for Info-Santé.
[33]
Mr. Brahimi contacted Ms. Douyon
by telephone or e-mail to propose shifts to her. Ms. Douyon was not obliged to
work the shift requested. However,
if she agreed to do so and was later unable to, she had to inform the appellant
as early as possible, giving minimum two hours notice in order to find a
replacement.
[34]
She did not remember whether
the appellant prohibited her from working elsewhere. She also did not remember whether the appellant made source
deductions from her salary.
[35]
When she came to the CLSC,
there was an assistant on site to meet agency workers. She also helped them if they had questions. She also signed in when she arrived. Her name was already entered.
[36]
In her work, Ms. Douyon
answered calls regarding health questions. She had to fill out call sheets on the computer; a call
sheet is similar to a patient’s file. She had
to fill in the reason for the call, state of health, complaints, recommendations
given, etc. The telephone conversations were recorded. The assistant could not assign her other tasks than
answering calls, except for home visits, which she could have the assistant
assign to her.
[37]
Ms. Douyon testified that
there was no difference between her tasks and those of a CLSC employee.
[38]
The nurses had to adhere to
protocols during their shifts. The
protocols were created by doctors, scientists and nurses. For
example, a protocol might say that, after 72 hours of fever, a child
should be taken to the doctor. The protocols
provided for the majority of cases and indicated circumstances in which a
patient should be sent to see a doctor and those in which it would be fine to
wait.
[39]
Ms. Douyon had to follow the
established work schedule. She
could leave earlier in case of an emergency with permission. If she was asked to remain at work after completing her
shift, she was not obliged to do so, but she could do so voluntarily.
[40]
The CLSC planned breaks and
lunchtime in advance.
[41]
No dress code was in effect.
[42]
With respect to salary, the
appellant proposed an amount to Ms. Douyon and she accepted it. She did not remember if the salary had
been negotiated. There was one time when she
asked the appellant to pay her in advance and was paid in advance.
[43]
The work tools were provided
by the CLSC. She used the CLSC’s
computer with an assigned password, telephone and headset.
Yves Beaudet
[44]
Mr. Beaudet is a caregiver
and a retired nurse. He
worked as a nurse mainly at the CHSLD Saint‑Charles‑Borromée and
sometimes at the Manoir de l’âge d’or or at the Manoir De La Lande. Most of the time, he worked at Saint‑Charles‑Borromée
because he was a long-term replacement for almost a year.
[45]
He described the appellant
as a placement agency. When
he worked for the appellant, he did not work for other agencies at the same
time.
[46]
The appellant contacted Mr.
Beaudet to give him the time and location of work. The appellant did not instruct him on how he should do his
work.
[47]
Mr. Beaudet was free to
accept or decline a proposed shift. He had no obligation to accept.
[48]
When he arrived at the
client’s workplace, Mr. Beaudet met the head nurse for the evening team, who
explained to him what the evening team had done. He then followed the work plan to the extent possible.
The work plan could be modified based on the
information obtained from the head nurse;
it was more of a frame of reference. The work plan
was provided by the establishment where he worked. It contained general directives on the procedures to follow
during the shift. Mr. Beaudet described
the work plan as a [Translation] “compass”, which he tried to
follow to the extent possible.
[49]
There were also binders
describing the techniques and the care to be given to patients. There was a binder with the patient’s
name, room number and detailed procedure to follow. When he accepted the work, he accepted to work within the
place’s frame of reference. Mr. Beaudet
worked within the framework of the work plan and the Order’s standards.
[50]
When he arrived for his
shift, Mr. Beaudet also met the coordinator for his shift. Mr. Beaudet referred to the coordinator
if he had questions. Mr. Beaudet also
described him as his “boss”. The coordinator passed
along any specific information. The coordinator could add things to the work
plan when there were any particularities. The coordinator could ask Mr. Beaudet
to respond to an emergency, and he would have to go and help out on another
floor, for example. He was obliged by the
Order to comply with the request.
[51]
Mr. Beaudet had to fill out
forms concerning the care given to patients and then give them to the
coordinator.
[52]
At Saint-Charles-Borromée,
he was the only nurse on the floor. There were two attendants on the floor. The coordinator and the head nurse were also available.
[53]
Mr. Beaudet was entitled to
attend training given by the client. For example, he received training to learn what to do with
a respirator during a power outage. He also
received training from the Order that he had to pay for himself.
[54]
There was no difference
between the tasks of a nurse hired by an agency and a nurse employed by the
CHSLD.
[55]
Mr. Beaudet had to follow
the work schedule established by the client. Meal and break times were also determined by management,
but Mr. Beaudet could agree with the others to have lunch or a break at a
different time depending on the patients’ condition. However, they tried to follow the work plan as much as
possible because this simplified their work.
[56]
Based on the Order’s
standards, he could not leave if there was a shortage of staff. He could even have to stay after his
shift according to the Order. In case of an
emergency, if he wanted to leave before the end of his shift, he had to be
authorized to do so by the coordinator because the floor could not be left
without a nurse. The coordinator would try to find a replacement to allow Mr.
Beaudet to leave.
[57]
The appellant determined Mr.
Beaudet’s salary.
[58]
He had liability insurance
with his nursing licence. The
appellant provided no benefits.
[59]
The establishment provided
blood pressure monitors, sphygmomanometers, forceps and dressings. He had his own uniform, except in special
cases when the client provided the uniform (a special garment for isolation,
scrubs in a particular case). He owned a blood pressure monitor and a
stethoscope, which he had needed when he did his training. At work, he preferred to use his own stethoscope.
Hélène St-Onge
[60]
Ms. St-Onge is a nurse who
was hired by the appellant to work in different health institutions such as
CHSLDs, CLSCs and hospitals.
[61]
The appellant proposed
shifts at various institutions. It also proposed an hourly rate. In
order to get paid, Ms. St-Onge had to keep track of her hours and send
them to the appellant.
[62]
The appellant did not
instruct her on how to do her work.
[63]
She was free to accept or decline a proposed
shift. She had to follow the work schedule provided,
and the institution scheduled meal times and break times.
[64]
At first, the appellant did
not make source deductions but started to do so in 2007.
[65]
Ms. St-Onge worked for CLSCs
and CHSLDs.
[66]
At a CLSC, she did three
types of work. She sometimes
provided [Translation] “routine care”, sometimes, [Translation] “walk-in nursing” and
sometimes Info-Santé, a telephone advice service.
[67]
For Info-Santé, she took a
course paid by the appellant about five months after she had begun working for
the appellant. The training
explained how to use the computer tool, follow protocols and keep statistics.
[68]
Protocols are created to
ensure that all Quebec nurses give the same advice. It is mandatory to follow the protocols. A person who did not follow them could not continue to work
for Info-Santé.
[69]
Calls were recorded.
[70]
During a call, a variety of
information had to be entered into the electronic file.
[71]
On her arrival at the CLSC,
she had to report to the head nurse, the “ASI”, then
confirm her presence and sign in. The ASI informed her of her meal times and break times.
The ASI also told her what workstation to use.
[72]
The ASI supervised her and
Ms. St-Onge could ask the ASI if she had questions about the protocols. Typically, she consulted the ASI about
three times per shift.
[73]
She did the same work as the
employees hired by the CLSC. This
was the case for Info-Santé as well as for routine care.
[74]
If she worked a routine care
shift, she received a list of clients to see.
[75]
For routine care, if she had
to leave early, she had to have the ASI’s permission.
[76]
Equipment was supplied by
the CLSC. At Info-Santé, the
computer, software, telephone and the workstation were provided by the client.
[77]
At Info-Santé, wearing
scrubs was encouraged, but not mandatory, while for routine care, it was
mandatory.
[78]
In routine care, there was a
file for each patient, and Ms. St-Onge had to follow the patient’s care plan. The ASI supervised her. If she had questions, she asked the ASI.
[79]
In routine care, she could
be asked to stay if, for example, a nurse who was supposed to work the next
shift did not show up.
[80]
However, if she had to leave
early, she had to get permission from the ASI.
[81]
When she worked at a CHSLD,
she signed in when she arrived, went to see the head nurse who gave her her
list of patients and met the nurse who worked the previous shift to get the
patient reports with their medical files and the treatment plan she had to
follow. There were protocols
to follow for treatments.
[82]
The ASI supervised her. The
ASI made the rounds during the shift or phoned.
[83]
Ms. St-Onge had to enter a
variety of information into the patients’ files, including any nursing actions
she had taken.
[84]
If she had questions, she asked
the ASI, who could assign her other tasks and other patients.
[85]
She could leave early only
with the permission of the head nurse. She could be obliged to remain after the end of her shift,
if needed, to ensure that the patients were not without a nurse. That is a professional obligation.
[86]
The appellant decided on her
salary.
Michaël Bien-Aimé Cimbert
[87]
The last witness was Ms.
Cimbert, a nurse since 1981.
[88]
She was hired by the
appellant mainly to work at the CHSLD. In addition to the work she did where the appellant hired
her, she was employed full time at a rehabilitation institution and part time
at a CLSC.
[89]
Like others who were hired
by the appellant, she was free to accept or decline a proposed shift. She had negotiated her salary with the
appellant based on the workplace and on whether it was a holiday or not.
[90]
The appellant did not instruct her on how to do
her work.
[91]
Like the other nurses, she
had insurance through the Order.
[92]
At the CHSLD, she was not
evaluated by anyone and was never sanctioned. However, if the CHSLD no longer wanted her to work for them
because, hypothetically speaking, it was not satisfied, the CHSLD could simply
tell the appellant that it did not want her to come back.
[93]
Once, the appellant advanced
her two days of pay.
[94]
The equipment was mainly
supplied by the establishment, but she used her own scrubs and shoes.
[95]
The establishment could not
force her to work after the end of her shift, but her professional ethics did
not allow her to leave her patients without a nurse. Consequently, if, for example, her replacement did not show
up, she had to stay until the establishment found a replacement.
[96]
The appellant did not
prevent her from accepting other contracts.
[97]
On her arrival at the CHSLD,
she signed in and could be told that she was working on a different floor than
originally planned.
[98]
She had to follow each
patient’s care plan and enter some information into the patient’s file.
[99]
As for the organization of
work, that is, the tasks that were not part of the care plans, she described
the situation differently from the other witnesses, except for Mr. Brahimi. According to Ms. Cimbert, she knew what
tasks to do and she did them provided the care plans were followed. For example, during breaks and meal times, she was free to
choose when to take her break if it did not bother the organization or anyone
else.
Analysis
[100] The contract of employment is defined in article
2085 of the Civil Code of Québec 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.
[101] This article contains three components:
(a) a person who undertakes to do work
(b) for remuneration
(c) under the direction or control of
another person.
[102]
These three components exist
in situations covered by paragraph 6(g) of the Employment Insurance
Regulations. However,
although there are only two parties in article 2085, the employer and the employee,
under paragraph 6(g), the employer’s role is divided between the
placement agency, which hires and pays the person, and the client, who
exercises the direction and control of the worker.
[103] As I stated at the beginning, it is not disputed
that the appellant hires and remunerates the workers. The issue is whether the workers provide their services “under the direction or control” of the client.
[104] It is well established that the concept of
control includes not only strict or classical subordination, but also legal
subordination in the broad sense. In Le droit du travail du Québec, sixth edition,
Robert Gagnon wrote the following:
[Translation]
92 - Concept - Historically, the civil law initially
developed a “strict” or “classical” concept of legal subordination that was
used for the purpose of applying the principle that a master is civilly liable
for damage caused by his servant in the performance of his duties (article
1054 C.C.L.C. and article 1463 C.C.Q.). This classical legal
subordination was characterized by the employer’s direct control over the
employee’s performance of the work, in relation to the nature of the work and
the way it was performed. This concept was gradually relaxed, giving rise to
the concept of legal subordination in the broad sense. The reason for this is
that the diversification and specialization of occupations and work methods
often made it unrealistic for an employer to be able to dictate or even
directly supervise the performance of the work. Consequently, subordination
came to include the ability of the person who became recognized as the employer
to determine the work to be performed, and to control and set the conditions of
the performance. Viewed from the reverse perspective, an employee is a person
who agrees to integrate into the operational structure of a business so that
the business can benefit from the employee’s work. In practice, one looks for a
certain number of indicia of the ability to control (and these indicia can vary
depending on the context): mandatory presence at a workplace; a somewhat
regular assignment of work; the imposition of rules of conduct or behaviour; an
obligation to provide activity reports; control over the quantity or quality of
the services, ownership of the tools, chance of profit and risk of loss, etc.
The fact that a person works at home does not mean that he or she cannot be integrated
into a business in this way.
[105] What are the facts in this case? I will begin by noting that, with respect
to what happens at the health establishments, I prefer the testimony of the
four witnesses to that of Mr. Brahimi. They were on site; Mr. Brahimi was not.
When I speak of what took place at the health
establishments, I am referring solely to the testimony of the four witnesses,
not that of Mr. Brahimi.
[106] It is clear that these four individuals were
free to either accept or decline a proposed shift. Once they had agreed to
work, they had to honour their commitment. For example, they could leave earlier than planned only
with the establishment’s permission.
[107] The fact that they were free to accept or
decline a shift does not help us determine whether they were under the control
of the client, that is, the establishment in question.
[108] There are several indicia of supervision
present.
[109] The four witnesses had to all sign in when they
arrived at the establishment. If
they had to leave early because of an emergency, they had to get the
establishment’s permission.
[110] It is true, as stated by the appellant, that the
workers could not be obliged to stay later than planned by the establishment
except in circumstances where their code of ethics obliged them to stay to ensure
that the patients had a nurse. This
is no different than a day employee hired for a set day.
[111] It was mandatory for the workers to follow the
patients’ care plans, and the establishment could assign them different tasks
than those planned beforehand. They
also had to follow protocols for the care ordered.
[112] In general, they had to take their breaks and
their meals at indicated times and they had to do the assigned tasks. Regarding this, I will comment on the
testimony of Mr. Beaudet and Ms. Cimbert. Mr. Beaudet testified that the
work plan was like a [Translation]
“compass” that he tried to follow to the extent possible
because this simplified his work. Ms. Cimbert said that she did the work by herself and that
she could decide when to take her breaks provided it did not bother the
organization or anyone else. The two workers
mandatorily followed the care plans.
[113] Both Mr. Beaudet and Ms. Cimbert performed
the assigned tasks. Neither
one suggested that they did not perform the assigned tasks. However, there was flexibility with regard to the order in
which some tasks could be performed and in the break and meal times, if this
did not contravene care plans. That
flexibility is doubtless needed to take into account any unforeseen events that
could take place. In addition, with
well-trained employees, it is common practice nowadays for employers to give
employees some flexibility provided that the necessary tasks are accomplished.
[114] Given that Ms. Cimbert had more than
30 years of experience, it should have been rare for her not to know the
tasks she had to perform.
[115] Given the need to interact, it is doubtless
simpler to try to follow the [Translation]
“compass” as Mr. Beaudet stated. Otherwise, an effort must be made to coordinate with the
other workers as Ms. Cimbert did when she said that she could choose the time
of her meals provided that she did what she had to do and that it did not
bother other people or the organization.
[116] At Info-Santé, there was a great deal of
supervision.
[117] The work was done at the client’s establishment,
and equipment was, for the most part, provided by the client. The only things the workers provided were
relatively inexpensive, namely, uniforms, shoes, and, for some, a stethoscope.
[118] Those are strong indicia of supervision, and,
overall, given the evidence, I do not see how I could find that the Minister
was wrong in concluding that the workers were under the control and supervision
of the clients.
[119] For these reasons, the appeal is dismissed.
Signed at
Ottawa, Ontario, this 29th day of June 2015.
“Gaston Jorré”
Translation certified true
On this 7th day of October 2015
Margarita Gorbounova, Translator
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