Citation: 2012 TCC 410
Date: 20121122
Docket: 2010-2389(EI)
BETWEEN:
ÉCOLE DE LANGUES ABCE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
KAMEL BOURENANE,
Intervener,
AND
Docket: 2010-3877(EI)
BETWEEN:
ÉCOLE DE LANGUES ABCE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2010-3878(CPP)
BETWEEN:
ÉCOLE DE LANGUES ABCE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Rip C.J.
[1]
The Société École de
langues ABCE Inc. (ABCE) appealed
the decisions of the Minister of National Revenue (Minister) according to which
Kamel Bourenane and Denis Fugère, who worked for appellant ABCE, held
“insurable employment” under paragraph 5(1)(a) of the Employment
Insurance Act (Act). The appellant also appealed a decision of the Minister
according to which Mr. Fugère was employed in pensionable employment under
section 6 of the Canada Pension Plan (CPP). Mr. Bourenane is an intervener
in the appeal that concerns him.
[2]
The relevant period
involving Mr. Bourenane is from March 9 to October 2, 2009, and the
relevant period in both appeals involving Mr. Fugère is from June 22, 2009,
to January 28, 2010. All three appeals were heard on common evidence.
ABCE
[3]
ABCE is a private
language school that teaches English and French, primarily to federal public
servants, and whose main client is the Canada School of Public Service (CSPS). The
sole shareholder and directing mind of ABCE is Mohammed Chaouni. ABCE was
incorporated in 1997, but Mr. Chaouni operated ABCE as sole proprietor until
2008.
[4]
Mr. Chaouni testified
that the school adapts to each client’s requirements. The number of students at
ABCE varies. Mr. Chaouni stated that, in order to meet the needs of each
client, ABCE determines the class schedule, the place at which courses are
taught and the content of the courses based on the requirements of the client.The instructors are required to prepare the
programs. The CSPS imposes numerous conditions on the students’ instruction. One
of the conditions of the CSPS is the use of a curriculum it developed. The CSPS
also has other requirements which involve verification and quality control. For
the CSPS, the mandate of ABCE is to prepare students for an exam administered
by the Public Service Commission of Canada. ABCE does not write those exams.
[5]
Mr. Chaouni stated
that some instructors are employees of ABCE. They have a fixed schedule and
teach at the school. However, the school cannot ensure that there is always
work for these employees, since the work depends on the contracts it receives.
[6]
Mr. Chaouni explained
that because the needs of each student are different, ABCE must be able to offer
its clients instructors that are flexible in terms of schedule, location and course
content. In addition to the instructors who are employees of the ABCE, he
stated that the ABCE also hires instructors who are self-employed. He stated
that the self-employed instructors sometimes work during the day, sometimes at
night, and sometimes on weekends. They use their own manuals and tools. While
the self-employed workers can avail themselves of the school’s classrooms, they
could also be required to teach elsewhere, for example in the students’ offices.
The school does not reimburse the expenses of self-employed workers. Mr.
Chaouni testified that a flexible instructor enjoys more employment opportunities.
[7]
In the case of
self-employed instructors, ABCE assesses students to determine their current
level and their objective. Once the initial evaluation is completed, the school
submits the information to the instructor, who must prepare a structured
curriculum adapted to the client’s needs.
[8]
Messrs. Bourenane and
Fugère were seasoned instructors. Mr. Chaouni stated that he informed them, during
the interview, of the different types of teaching positions. According to Mr. Chaouni,
the two men chose to be self-employed workers.
[9]
Even if the employment contracts
were signed by Mr. Chaouni on the one hand, and by Messrs. Bourenane
and Fugère on the other, the intention, said Mr. Chaouni, had always been that
ABCE be the employer, and not Mr. Chaouni.
[10]
Mr. Chaouni testified
that the hourly rate of employed instructors is different from that of self-employed
workers. The rate for employees is $20 per hour, whereas the rate for self-employed
workers is higher. ABCE has 10 to 15 employees and 15 to 20 self-employed
workers. The number of instructors varies depending on the number of contracts
signed by ABCE. The number of self-employed workers hired by the school varies depending
on the work and the instructors’ flexibility. Some instructors come in with no
experience and require training. Such instructors are hired as employees.
[11]
Mr. Chaouni challenges
some of the Minister’s assumptions of fact in finding that
Messrs. Bourenane and Fugère were engaged in insurable employment:
(a) He
denies that the appellant’s hours of work were from 6:30 a.m. to 9 p.m. or 10
p.m., seven days a week. Mr. Chaouni submits that in principle, working hours
ended at 5 p.m. and that the appellant was not open on weekends. However, self‑employed
instructors could always come on weekends to use the classrooms to teach.
(b) He
denies that the workers had to be accredited by the CSPS to teach public
servants. Mr. Chaouni submits that no accreditation was required, but that
the instructors had to undergo training to comply with the requirements of the
CSPS.
(c) He
denies that the workers were supervised by the appellant and that the academic
director verified the conduct of the courses in the classes. Mr. Chaouni submits
that it was the CSPS itself that sent inspectors to verify instruction.
(d) He
denies that the workers had to meet objectives for each student. Mr. Chaouni
notes that everything in life operates on objectives.
(e) He
denies that the workers had to comply with the CSPS’s teaching methods. He
states that the instructors could choose some work methods, whereas others were
set by the CSPS. The instructors could choose the material they wished to use
to meet the set objectives.
(f) He
denies that the appellant provided the teaching materials, VCRs and computers
for the students and the classroom. Mr. Chaouni notes that the reference
material was available to students.
[12]
The “contracts” concluded
with Messrs. Bourenane and Fugère are virtually identical. The individuals
that Mr. Chaouni considers as employees are subject to a different contract.
The contract signed by Messrs. Bourenane and Fugère is as follows:
[Translation]
|
École de
langues ABCE inc.
130 Slater Street, Suite
500,
Ottawa, Ontario, K1P 6E2
Tel.:
(613) 560-0555 Fax: (613) 560-0444 E-mail: abce@language-training.org
CONTRACT:
EMPLOYMENT OF INSTRUCTORS AS CONSULTANTS
√ New contract
Amendment of former contract
|
|
Ottawa, ,
200
|
|
I,
Moe Chaouni, director of the École de langues ABCE inc. employ Instructor
as a consultant to offer pedagogical and language training services to federal
public servants and private sector employees. The term “consultant” does not
designate the status of employee or self-employed worker.
|
|
The
consultant, while offering language training services to the École de langues
ABCE inc., has the right to offer the same services to other language schools.
However, the consultant undertakes neither to found his or her own language school
nor to engage in activities serving the same objective for the duration of
his or her employment with the École de langues ABCE inc. as well as within
one year of the date he or she ceases his or her duties. The consultant shall
not attempt to solicit clients, students and instructors.
|
|
The
consultant makes a commitment to the École de langues ABCE inc. to comply
with the rights of the institution and all clients of the school, and not to
attempt to solicit them for the purpose of obtaining a direct contract with
them for an indeterminate period even after ceasing to work for the École de
langues ABCE inc.
|
|
The
service times and locations are to be determined by the instructor
(consultant) and not by the school.
|
|
Expenses
related to the purchase and use of materials, photocopies, parking, travel (short-
and long-distance travel), or any other expenses, are the sole responsibility
of said consultant.
|
|
The
consultant is responsible for submitting to the École de langues ABCE inc. attendance
and progress reports on or before the last day of each month.
|
|
The
hourly rate of instruction is $ /hour.
Payment shall be made on the 15th day of the month following the month
of training.
|
|
The
consultant shall not, under any circumstances or for any reason, discuss compensation
or the number of hours of work with other consultants of the school. Any
administrative issues should be discussed directly with management.
|
|
The
instructor (consultant) has an obligation to inform the École de langues ABCE
inc. in writing at least three weeks prior to the termination of the offer of
services. Failure to do shall result in the withholding by the École de
langues ABCE inc. of the equivalent of two weeks’ full-time pay (the
equivalent of 70 hours) or the consultant shall pay the École de langues
ABCE inc. the equivalent of two weeks’ full-time pay plus all other amounts
in damages and interest.
|
|
This
Contract shall take effect on the date of signature of this document.
|
|
This
Contract completely cancels and replaces all previous contracts signed.
|
|
Signed
Moe
Chaouni
|
|
I have
read and understood this Contract.
|
|
Signed
|
[13]
Mr. Chaouni stated
that he addressed the issue of status during the initial individual interview with
Messrs. Bourenane and Fugère. He testified that he explained the advantages
and disadvantages of being an employee or self-employed worker.
[14]
The document filed (as
a self-employed workers’ contract) indicates that the instructor is a “consultant”
and that a consultant is neither an employee nor a self‑employed worker. Self-employed
workers are hired for an indeterminate period. However, Mr. Chaouni points out
that he made an error when drafting the contract and that for him, a consultant
was a self-employed worker.
[15]
As for the clause in
the “contract” which prevents self-employed workers from working for another language
school and discussing compensation and the number of hours of work with the
other consultants of the school, Mr. Chaouni explained that, in the past,
the school had been the victim of professional espionage and the instructor in
question became a competitor of ABCE. Mr. Chaouni noted that the
non-competition and non-solicitation clauses are used to protect the interests of
the school.
[16]
The Public Service represents
approximately 90% of the school’s business. A small percentage of the total business
derives from private-sector clients and foreign students.
[17]
Mr. Chaouni stated
that Messrs. Bourenane and Fugère taught the majority of their courses on
the school’s premises. He noted that all the materials found in the classrooms,
the chairs, tables, boards, computers and dictionaries, were available to the clients.
Despite that, the instructors were not limited to the materials that were in
the classroom and the self-employed workers could use their own resources. Self-employed
workers prepared their courses themselves. According to Mr. Chaouni, self-employed
workers have more flexibility to increase their income; they can choose where
and when they wish to work.
[18]
The ABCE’s Web site
uses words and expressions that suggest the instructors are employees of the
ABCE. For instance, the site indicates that “their” instructors are trained by
the school and that certain manuals are produced by the school. Mr. Chaouni’s
response is that the site merely indicates that the instructors work at the
school and that they undergo training offered by the school. Said training
allowed the employees to learn the administrative workings of the school and
was not necessarily language training. The manuals developed prepared by the ABCE
are designed exclusively for the instruction of foreign students. However, Messrs. Bourenane
and Fugère did not teach the foreign students. Furthermore, business from
foreign students is limited to 10% of the total.
[19]
Mr. Chaouni testified
that the CSPS requires the preparation of a course plan. The instructor prepares
the plan at home and sends it via e-mail to the school. The school’s pedagogical
advisor verifies the plan, which is used to ensure the quality of instruction. There
is also a document that is used to organize the classrooms. The schedule of
instructors who are employees as well as that of the self-employed workers who
teach in the school’s classrooms are outlines in this document.
[20]
Mr. Chaouni stated
that the school imposes a dress code on instructors. If a student gives less
than 24 hours’ notice that he or she will be absent, the instructor is
paid for the cancelled course. If the student gives more than 24 hours’
notice, the instructor is not paid. Instructors who need to be absent from work
must inform management. They can opt to be replaced, but, often, the school
itself takes responsibility for the student. The instructors have weekly meetings
with the pedagogical advisor. Mr. Chaouni stated that the purpose of the
weekly meetings is to ensure the school is aware of what goes on in class and
that it knows whether the students are having difficulty, so as to report possible
problems to quality assurance officers.
[21]
Karmina Bendaqqi is
a pedagogical advisor for the students and the instructors. She testified for
the appellant. She stated that the CSPS requires that the school follow the
program established by the CSPS. However, the instructors themselves prepare
their programs for other clients.For those
other clients, the instructors can use their own materials. Messrs. Bourenane
and Fugère brought their own materials with them to class.
[22]
Ms. Bendaqqi stated
that the CSPS requires that the instructors prepare a program. The instructors send
the programs to Ms. Bendaqqi via e-mail. According to the contract with the
CSPS, Ms. Bendaqqi must conduct checks during classes. However, she does
not conduct checks for the other clients.
[23]
Ms. Bendaqqi explained
that while the school provides instructors with some resources, in general, they
bring their own materials. For the students of the CSPS, the program and books
are prescribed. However, for the other clients, the instructor prepares the course
for the client.
[24]
Where necessary, Ms. Bendaqqi
informs instructors of the clients’ objectives and problems, but it is up to
the instructors to find their own materials and solutions to teaching problems.
[25]
Ms. Bendaqqi performs
the same tasks for employee instructors. Her role is to advise and coordinate instructors,
not to know whether an instructor is an employee or a self-employed worker. Ms. Bendaqqi
herself is an employee.
[26]
Prior to his employment
with ABCE, Mr. Bourenane worked at another language school, the École de
Jonquière, which offered the same services as ABCE, namely, second language courses
to public servants. The École de Jonquière was unable to obtain new contracts
and, therefore, Mr. Bourenane only worked part-time. He considered himself
to be an employee of the École de Jonquière.
[27]
At that point, Mr. Bourenane
began to look for employment at other language schools. ABCE organized a
meeting between a pedagogical director and Mr. Bourenane to ask him questions
related to pedagogy. A second meeting with Mr. Chaouni followed and he was
offered a teaching contract with a pay of $23 per hour. Mr. Bourenane
submits that during that second meeting, the issue of his employment status was
not raised. Mr. Bourenane accepted the contract. He acknowledged that they
did not discuss the terms and conditions of the contract other than salary.
[28]
At the École de
Jonquière, Mr. Bourenane was an employee and he earned $22 per hour. During
the initial meeting between Mr. Bourenane and Mr. Chaouni to discuss
his new position at ABCE, Mr. Bourenane did not inquire about leave and
vacation. He did not read the contract prior to signing it. He did not receive
any explanations as to the two types of instructors.
[29]
After the meeting, the parties
set March 9 as the effective start date. At approximately 7:30 a.m., Mr. Bourenane
arrived at school. Mr. Chaouni and Ms. Bendaqqi provided him with a code
for the photocopier and showed him the library as well as the rest of the
school. He was provided the objectives of the school and the school curriculum:
a student shows up at the school, has certain characteristics and wants to
study to achieve a certain level.
[30]
The school sent Mr. Bourenane
on training to be able to teach CSPS students. The training was held over four
or five days. The school paid Mr. Bourenane $644 while he was in
training. At the end of the training, he received a familiarization certificate.
[31]
Mr. Bourenane also
underwent a second training course offered by ABCE on June 13 and 14. The
program is for students who wish to acquire level C second language proficiency.
[32]
Mr. Bourenane stated
that he was provided with much assistance from the school. The director would
sometimes come to observe his courses and would provide feedback on his
teaching methods. Mr. Bourenane submitted that the school’s assistance was
invaluable to him. He also received help with his programs.
[33]
At the end of each day
of class, he would fill out a daily log which the school would review to be up
to speed on what was happening in class and also to assist substitute teachers
in the event that an instructor was absent had to be and replaced.
[34]
Mr. Bourenane described
a typical day at work. He would arrive in the morning. He would look at the
day’s schedule depending on the program. Sometimes, programs have to be
modified if a student cannot attend class. He would enter the classroom with a student.
In the room there is a board, a computer, a projector, tables and chairs, and a
library full of the school’s books. At around 10 a.m., there is a
15-minute break, which is regulated. After the break, he would get back to work
until noon. At noon, there is a one-hour break. He would then resume his
courses until about 4 p.m.
[35]
Mr. Bourenane submits
that he never taught anywhere else but the school. He usually gave private
lessons. However, if instructors had to be absent for training purposes, Mr. Bourenane
would also look after their students.
[36]
Mr. Bourenane would
prepare his weekly programs at the school. He had to send his programs to Ms. Bendaqqi
for verification every Wednesday or Thursday. He could change the learning
activity, but not the CSPS’s learning objectives.
[37]
If a student gave
notice more than 24 hours in advance that he or she was going to be absent,
the instructor was not paid, unless he still had to be present at the school to
stand in as needed. If less than 24 hours notice was given, the instructor
was paid if he was present at school. If he had to be absent from work, he had
to inform management, who had to find a replacement.
[38]
There were meetings
with the pedagogical advisor every Wednesday to discuss news or issues. All teaching
material was provided by the school. Mr. Bourenane never purchased
teaching books. He could not use pedagogical resources other than those
provided by the school. According to Mr. Bourenane, management had the
right to tell him how to teach.
[39]
Mr. Bourenane was
paid for an hour or half hour of preparation for every day he taught. Mr. Chaouni
prepared a table indicating salary increases he offered the instructors. Mr. Bourenane
never received a salary increase. He did not have any risk of loss. He did not
have any expenses related to teaching. He did not have a business card.
[40]
The attendance report
is an invoice prepared for each student. The instructor indicates the student’s
name and, on occasion, the department the student works for. A coordinator explained
to Mr. Bourenane that is was important to fill out the invoices at the end
of each month.
[41]
Mr. Bourenane only
worked for the CSPS but stated that it was possible that he would have to replace
other instructors. However, the pedagogical director always urged him to follow
the program established by ABCE. He could not use any other program. He
followed the instruction program specific to the level of each student. There
were icebreakers in the morning to “break the ice.” The icebreakers are on the program.
Mr. Bourenane prepared the material to be taught, depending on the program.
The school provided instructors and students with the password necessary to
allow them access to a Web application called “Campus Direct.”
Testimony of Denis Fugère
[42]
Mr. Fugère was
hired by ABCE on June 11, 2009. He was paid $22.50 per hour. During the
interview, there was never any discussion of his status as an instructor. After
the interview, he was given a tour of the school.
[43]
Mr. Fugère read the
contract before signing it. He modified the penalty for failing to give notice
of termination to two weeks’ pay.
[44]
He taught a student in
the morning and another in the afternoon, and sometimes taught groups. The
school provided instructors with materials: the 40 booklets required
for training, the code to access Campus Direct, and a computer in the classroom.
The school also provided dictionaries, photocopiers and Internet access. Every
Friday, Mr. Fugère was required to hand in a program for the following
week. He had to fill out a log every day, after each course.
[45]
He worked about eight
hours per day. The program had to be verified by Ms. Bendaqqi. The school
informed him of each student’s learning objectives. Therefore, any long-term planning
was done by the school.
[46]
If a student was absent
without notice, the instructor had to wait just in case another instructor had
to be replaced. If the student gave 24 hours notice, Mr. Fugère was
not paid. If Mr. Fugère had to be absent from work or if he wanted to take
time off, he had to consult with Mr. Chaouni or the pedagogical advisor.
[47]
Each month the school
prepared invoices for its clients which indicated the number of hours taught
and the hourly rate of each instructor.
[48]
Mr. Fugère worked at
the school for six months, until January 2010, because he wanted to work at the
Olympic Games in Vancouver. He took two weeks off in August to attend training
for the Olympic Games.
[49]
There is extensive case
law on the issue of whether a person is an employee or independent contractor. The
answer, obviously, depends on the facts of each case.
[50]
In considering this appeal,
it is appropriate to refer to three decisions published in the law reports: Wiebe
Door Services Ltd. v. Minister of National Revenue (Wiebe
Door), 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (Sagaz),
and The Royal Winnipeg Ballet v. Minister of National Revenue (Royal
Winnipeg Ballet).
[51]
In Wiebe Door, Justice
MacGuigan examined the four case law tests to be considered in determining
whether a contract is one of service or for the
provision of services. Based on a set of criteria, it is appropriate to
consider the following:
(a) The degree or absence of control, exercised by the alleged
employer.
(b) Ownership of tools.
(c) Chance of profit and risks of loss.
(d) Integration of the
alleged employee's work into the alleged employer's business.
[52]
Justice MacGuigan stated
that “the traditional common-law criterion of the
employment relationship has been the control test,” and
“that this test is still fundamental is indicated by
the adoption by the Supreme Court of Canada in Hôpital Notre-Dame de
l'Espérance and Théoret v. Laurent.” However, the application of the test depends
on the various circumstances, namely, the wording of the contract and the employee’s
skills.
[53]
Justice MacGuigan
referred to the decision of Lord Wright in Montreal v. Montreal
Locomotive Works Ltd. and concluded that determining
the character of the relationship involves “examining
the whole of the various elements which constitute the relationship between the
parties.”
The character of the relationship will depend
on “the combined force of the whole scheme of
operations.”
[54]
At the end of his
analysis, the question the judge must answer, in respect of the worker, is the
following: Whose business is it? The worker’s
or his employer’s?
[55]
In Sagaz, the
Supreme Court agreed with Justice MacGuigan. The Court indicated that there is no one conclusive test which can be universally
applied to determine whether a person is an employee or an independent
contractor. What must always occur is a search
for the total relationship of the parties. The
central question is whether the person who has been engaged to perform the
services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the
worker's activities will always be a factor. However, other factors to consider
include whether the worker provides his or her own equipment, whether the
worker hires his or her own helpers, the degree of financial risk taken by the
worker, the degree of responsibility for investment and management held by the
worker, and the worker's opportunity for profit in the performance of his or
her tasks. Although, in this appeal, the contract designated one of the parties
as an “independent contractor,” this classification
is not always determinative for the purposes of vicarious liability, which
was the issue the Supreme Court had to decide.
[56]
In Royal Winnipeg
Ballet, while the degree of control exercised by
the ballet company over the work of the dancers was extensive, it was no more
than needed to stage a series of ballets over a well planned season of
performances. The parties' common
understanding was that the dancers should be
independent contractors. The legal
relationship between the Royal Winnipeg Ballet and its dancers was borne
out by the Canadian Ballet Agreement in force at the time, an umbrella
agreement between the ballet company and the Canadian Actors’ Equity
Association (the CAEA), which could be supplemented
by an individual contract.
[57]
The umbrella agreement provided,
among other things, that the dancers could accept to work for other ballet
companies. The dancers had to bear the cost of physical
conditioning, orthopaedic devices, and so
forth. A performance could not be filmed
unless a separate agreement was negotiated between the Royal Winnipeg
Ballet and the CAEA. The dancers were registered for
GST purposes, and charged GST to the Royal
Winnipeg Ballet.
ABCE Inc. and its instructors
[58]
According to the contracts
between Mr. Chaouni and Messrs. Bourenane and Fugère, ABCE had a
right of control and strict supervision over the work performed by them. The
school was directly operated by Mr. Chaouni. The contracts’ terms and
conditions are rather draconian, and some of them patently illegal. The contracts
acknowledge that the “consultant” can offer training services to other
schools but stipulate that he or she cannot engage in activities serving the
same objective as ABCE. The consultant cannot seek to provide
services to ABCE’s clients “for an indeterminate period even after ceasing to
work” for ABCE. The contracts also restrict the consultant’s
freedom of speech by prohibiting him or her from discussing compensation or hours
of work with other ABCE instructors.
[59]
Messrs. Bourenane and
Fugère had to inform the school when they wished to take vacation, as the
school had to know to prepare course schedules. ABCE also required Messrs.
Bourenane and Fugère to keep a daily log, prepare weekly instruction programs and
meet with Ms. Bendaqqi. The instructors were subject to the supervision and
control of the school and taught by following the program approved by the
school.
[60]
The school provided the
students with teaching materials. Mr. Chaouni stated that only the students,
and not the instructors, could use said materials, although that is
questionable. The instructors worked with the students and normally used the
same materials. Indeed, when Messrs. Bourenane and Fugère taught CSPS
students, who accounted for most of their students, they were required to use
the prescribed materials and follow the prescribed programs. While it is
possible that Messrs. Bourenane and Fugère used their own materials, it would
have only been on rare occasions and was only incidental.
[61]
The chance of profit
and risks of loss were borne by ABCE. Messrs. Bourenane and Fugère were
paid per hour of teaching; it is not a situation where they would earn more if
they worked faster and got more work done. They taught during the school’s
office hours. ABCE set the hours of work, breaks and lunch hour; it assigned
classrooms and decided on meetings.
[62]
It is not at all clear
whether the parties wanted Messrs. Bourenane and Fugère to be independent contractors. The contract each of them concluded
with ABCE (or with Mr. Chaouni) stipulates that [Translation] “the term ‘consultant’ does not designate the
status of employee or self-employed worker.” Furthermore, although there is no
evidence as to the annual income Messrs. Bourenane and Fugère earned from
teaching, that is, whether their income exceeded $30,000, there is nothing to
suggest that they charged ABCE the GST or that ABCE paid the GST. I doubt that Mr. Chaouni
asked himself whether the school may have been required to pay the GST to its instructors.
[63]
The school decided who
was going to replace an absent instructor. There is no evidence that Messrs. Bourenane
and Fugère chose their replacements or that they took on the students of absent
instructors, as stated by Mr. Chaouni.
[64]
There is no doubt that
the business was ABCE’s business. The school was the centre of all activities, whether
in its offices or elsewhere. The school needed instructors to operate its
business, and that is the reason that it hired Messrs. Bourenane and
Fugère.
[65]
Messrs. Bourenane and
Fugère were employees of ABCE during the relevant period. The appeals are
dismissed.
Signed at Ottawa, Canada, this 22nd day of November
2012.
“Gerald J. Rip”
Translation certified true
on this 10th day of January 2013.
Daniela Guglietta,
Translator
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