A-905-96
MONTRÉAL, QUEBEC, THE 10TH DAY OF JUNE, 1997
CORAM: THE HONOURABLE MADAM JUSTICE DESJARDINS
| THE HONOURABLE MR. JUSTICE DÉCARY |
| THE HONOURABLE DEPUTY JUSTICE CHEVALIER |
| BETWEEN: LES ATTACHES PREMIER LTÉE, |
Applicant
| THE MINISTER OF NATIONAL REVENUE, |
Respondents
| THE ATTORNEY GENERAL OF CANADA, |
Mis en cause
J U D G M E N T
The application for judicial review is allowed, the decision of the Tax Court of Canada is set aside and the matter is referred back to it for redetermination by another member of that Court.
Certified true translation
Christiane Delon
A-905-96
CORAM: THE HONOURABLE MADAM JUSTICE DESJARDINS
| THE HONOURABLE MR. JUSTICE DÉCARY |
| THE HONOURABLE DEPUTY JUSTICE CHEVALIER |
BETWEEN:
LES ATTACHES PREMIER LTÉE,
Applicant
| THE MINISTER OF NATIONAL REVENUE, |
Respondents
| THE ATTORNEY GENERAL OF CANADA, |
Mis en cause
Hearing held in Montréal,
Tuesday, June 10, 1997
Judgment rendered in Montréal,
Tuesday, June 10, 1997
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS, J.A.
A-905-96
CORAM: THE HONOURABLE MADAM JUSTICE DESJARDINS
| THE HONOURABLE MR. JUSTICE DÉCARY |
| THE HONOURABLE DEPUTY JUSTICE CHEVALIER |
| BETWEEN: LES ATTACHES PREMIER LTÉE, |
Applicant
| THE MINISTER OF NATIONAL REVENUE, |
Respondents
| THE ATTORNEY GENERAL OF CANADA, |
Mis en cause
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal,
Monday, June 10, 1997) [sic]
DESJARDINS, J.A.
The applicant is appealing by way of judicial review a decision of the Tax Court of Canada that overturned a decision by the Minister of National Revenue that the respondent, Robert Ranger, had not held an insurable employment with the applicant during the period from May 1, 1994 to January 9, 1995 because there was no employer-employee relationship between them.
In deciding as it did, the Tax Court of Canada erred in its analysis of the tests for distinguishing a contract of service from a contract for services.
In Wiebe Door Services Ltd.,1 this Court considered the applicable tests for determining the existence of a contract of service as opposed to a contract for services. Relying on the judgment of Lord Wright in Montreal v. Montreal Locomotive Works Ltd., the Court identified four factors in the assessment of the various characteristics of an employment relationship: degree of control, ownership of tools, risk of loss and chance of profit, as well as the degree of integration of the employee"s activities in the employer"s undertaking. These tests, as this Court recently noted in Charbonneau ,2 are not the ingredients of a magic formula. They are guidelines which are generally worth considering, but not to the point of jeopardizing the ultimate objective of the exercise, which is to determine the overall relationship between the parties.
Although the trial judge rightly declined to view the terms of the contract binding the applicant and respondent as decisive, his reasons indicate a lack of overall analysis of the relationship between the company and its employee. He failed to examine such factors as the chance of profit and the risk of loss, and erred in analyzing the integration from the standpoint of the employer rather than that of the employee, as Wiebe Door Services Ltd. instructs us to do.
For all these reasons, the application for judicial review will be allowed, the decision of the Tax Court of Canada will be set aside and the matter will be referred back to it for redetermination by another member of that Court.
Certified true translation
Christiane Delon
Federal Court of Canada
File No. A-905-96
BETWEEN
LES ATTACHES PREMIER LTÉE,
DIVISION CT INDUSTRIES,
Applicant
AND:
ROBERT RANGER
-and-
THE MINISTER OF NATIONAL REVENUE,
Respondents
AND:
THE ATTORNEY GENERAL OF CANADA,
Mis en cause
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: LES ATTACHES PREMIER LTÉE, |
Applicant
| THE MINISTER OF NATIONAL REVENUE, |
Respondents
| THE ATTORNEY GENERAL OF CANADA, |
Mis en cause
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: June 10, 1997 |
REASONS FOR JUDGMENT OF THE COURT (DESJARDINS AND DÉCARY, JJ.A. AND CHEVALIER, D.J.)
READ FROM THE BENCH BY: Desjardins, J.A.
APPEARANCES:
Michel Towner for the applicant
Gilbert Nadon for the respondent Robert Ranger
| Nathalie Lessard for the respondent The Minister of National Revenue and the mis en cause |
SOLICITORS OF RECORD:
Michel Towner for the applicant
Byers Casgrain
Montréal, Quebec
Gilbert Nadon for the respondent Robert Ranger
Campeau, Ouellet, Nadon,
Barabé, Cyr, Rainville,
de Merchant, Bernstein, Cousineau
Montréal, Quebec
| George Thomson for the respondent The Minister of National Revenue and the mis en cause |
Deputy Attorney General
of Canada
Ottawa, Ont.
__________________
1 Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A., per MacGuigan, J.A.).
2 Attorney General of Canada v. Normand Charbonneau, (1996), (A-831-95 and A-832-95, per Décary J.A.).
Email this Content