Date: 20000120
Docket: A-608-98
CORAM: MARCEAU
DESJARDINS
DÉCARY, JJ.A.
BETWEEN:
| LINDA PARADIS, domiciled and residing at 46 Rang 10, Auclair, Quebec, G0L 1A0; |
| GISÈLE ALBERT, domiciled and residing at 197 de l"Église, Lejeune, Quebec, G0L 1S0; |
| FRANCINE CORBIN, domiciled and residing at 110 Rang 7, Lejeune, Quebec, G0L 1S0; |
| ALINE RIVARD, domiciled and residing at 95 Route Saint-Guy, Lac des Aigles, Quebec G0K 1V0 |
| MINISTER OF NATIONAL REVENUE, having a place of business at 165 rue de la Pointe-aux-Lièvres sud, Québec, Quebec, G1K 7L3 |
Hearing held in Québec, Quebec, Thursday, January 20, 2000.
Judgment rendered at the hearing, Thursday, January 20, 2000.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 20000120
Docket: A-608-98
CORAM: MARCEAU
DESJARDINS
DÉCARY, JJ.A.
BETWEEN:
| LINDA PARADIS, domiciled and residing at 46 Rang 10, Auclair, Quebec, G0L 1A0; |
| GISÈLE ALBERT, domiciled and residing at 197 de l"Église, Lejeune, Quebec, G0L 1S0; |
| FRANCINE CORBIN, domiciled and residing at 110 Rang 7, Lejeune, Quebec, G0L 1S0; |
| ALINE RIVARD, domiciled and residing at 95 Route Saint-Guy, Lac des Aigles, Quebec G0K 1V0 |
| MINISTER OF NATIONAL REVENUE, having a place of business at 165 rue de la Pointe-aux-Lièvres sud, Québec, Quebec, G1K 7L3 |
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Québec, Quebec,
Thursday, January 20, 2000)
MARCEAU J.A.
[1] Four different applicants are involved in this case. They worked together for the same employer under similar contracts and their entitlement to benefits under the Unemployment Insurance Act was challenged by the Minister pursuant to section 189 of the Act on the ground that their contracts of employment were not insurable. The Tax Court of Canada, on an appeal by the four claimants, thought it appropriate to combine the four cases as the Minister himself had done and to assign it to a judge for disposition on common evidence and on the basis of a single decision. The application for judicial review was brought against this single decision and at this stage we have no other reasonable option but to take the originating document as it is, while procedurally keeping in mind that it covers four distinct applications.
[2] The judge dismissed the applications of the four applicants. In his opinion, he was unable from the evidence to question the facts cited by the Minister in arriving at his conclusion that the contracts under which they had worked were not contracts of service within the meaning of paragraph 3(1)(a) of the Act.1
[3] It is no doubt quite exceptional for a court exercising its review or appellate jurisdiction to intervene in a decision essentially based on an assessment of facts and an interpretation of testimony, and even more exceptional when the impugned judgment touches on issues of credibility. But after careful consideration, we have come to the conclusion that we were in this instance confronted with the exception and that we had to intervene.
[4] The four claimants are farm workers who were hired by Laval University to provide certain services in the implementation of a research project on the cultivation of potatoes. Their work consisted of cutting and monitoring and keeping records on the development of the cuttings during predetermined periods staggered over the course of the year. The problem was, of course, whether their contract was one of services or for services according to the legal jargon, a distinction which, as the terms used suggest, becomes quite subtle when it involves ordinary manual workers whose sole modus operandi is to make use of their person and supply their time. The claimants of course had the onus of persuading the judge that the Minister had erred, but it so happens that in attempting to do so their conduct in court, as a reading of the transcript demonstrates, was such as to leave the impression that they and their then counsel were trying to hide the facts and present them in the way they thought was the most favourable.
[5] It is clear from the judge"s reasons that he was extremely irritated and adversely influenced by the witnesses" equivocations and the deplorable manoeuvres of their counsel, and we can readily understand his reaction. However, in our view, the outcome of a proceeding as serious and fraught with consequences as this should not be so exclusively a function of these behavioural lapses of the participants in the hearing, regrettable as they were.
[6] In our opinion, the undisputed basic facts " in particular, that the applicants were in fact hired by the University; that they did the work required of them during the periods as determined; that this work was purely manual, to be performed on location with a producer a few hundred kilometres from the research centre itself in Québec; that the supervision of the work could not be exercised directly but had to be the product primarily of an analysis of the results compiled in the reports and sporadically of on-site visits by those in charge of the project; and the special surveillance role assigned to one of the four " compel us to conclude that the contractual relationship of the four workers with the University undeniably constituted an employer-employee relationship that had to proceed within the context of a contract of employment. We think the Minister made his decision without having before him all the facts, and in particular the explanations of the University"s representative, and we think the judge was, as we just said, excessively blinded by the wrongful conduct at trial.
[7] We are therefore of the opinion that the application for judicial review should be allowed, the impugned decision of the Tax Court of Canada set aside, and the four cases, combined in this proceeding, bearing numbers 97-82(UI), 97-83(UI), 97-85(UI) and 97-96(UI), sent back to the Tax Court of Canada for disposition as four judgments overturning the Minister"s determination and recognizing that the applicants, during the periods at issue, had worked for Laval University under a contract of service within the meaning of paragraph 3(1)(a ) of the Unemployment Insurance Act.
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: Linda Paradis et al. v. Minister of National Revenue |
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: January 20, 2000 |
REASONS FOR JUDGMENT OF MARCEAU, DESJARDINS, DÉCARY, JJ.A.
REASONS FOR JUDGMENT RENDERED ORALLY FROM THE BENCH JANUARY 20, 2000
APPEARANCES:
François Bouchard FOR THE APPLICANTS
Anne-Marie Boutin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Flynn Bouchard FOR THE APPLICANTS
Québec, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Which read as follows:
| 3. (1) Insurable employment is employment that is not included in excepted employment and is (a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise; ... |
3. (1) Un emploi assurable est un emploi non compris dans les emplois exclus et qui est, selon le cas:a) un emploi exercé au Canada pour un ou plusieurs employeurs, en vertu d'un contrat de louage de services ou d'apprentissage exprès ou tacite, écrit ou verbal, que l'employé reçoive sa rémunération de l'employeur ou d'une autre personne et que la rémunération soit calculée soit au temps ou aux pièces, soit de toute autre manière; ... |
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