Date: 20091215
Docket: A-545-08
Citation: 2009 FCA 372
CORAM: BLAIS
C.J.
LÉTOURNEAU
J.A.
TRUDEL
J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
LES ENTREPRISES UNE AFFAIRE
D’ANGLAIS INC.
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Québec,
Quebec, on December 15, 2009)
LÉTOURNEAU J.A.
[1]
Once
again, the thorny and difficult issue of the insurability of employment is
raised before this Court. Was Justice Favreau (judge) of the Tax Court of
Canada correct in finding that the worker (John Robert Cheetham) did not hold
insurable employment with the respondent from June 30, 2004, to June 30,
2005?
[2]
Based on
that finding, the judge allowed the respondent’s appeal. He then set aside the
decision of the Minister of National Revenue (Minister), who had considered the
relationship existing between the worker and the respondent to be that of an
employer/employee, governed by an employment contract. Instead, the judge
concluded that this was a contract of enterprise or for services within the
meaning of article 2098 of the Civil Code of Québec, R.S.Q. 1991, c. 64
(Civil Code).
[3]
For a better
understanding of these reasons, we are reproducing side by side articles 2085,
2086, 2098 and 2099 of the Civil Code, which define both types of
contract and specify the main characteristics of each:
|
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.
|
2085. Le contrat de travail est
celui par lequel une personne, le salarié, s'oblige, pour un temps limité et
moyennant rémunération, à effectuer un travail sous la direction ou le
contrôle d'une autre personne, l'employeur.
|
|
2086. A
contract of employment is for a fixed term or an indeterminate term.
|
2086. Le contrat de travail est à
durée déterminée ou indéterminée.
|
|
…
|
…
|
|
2098. A
contract of enterprise or for services is a contract by which a person, the
contractor or the provider of services, as the case may be, undertakes to
carry out physical or intellectual work for another person, the client or to
provide a service, for a price which the client binds himself to pay.
|
2098. Le contrat d'entreprise ou
de service est celui par lequel une personne, selon le cas l'entrepreneur ou
le prestataire de services, s'engage envers une autre personne, le client, à
réaliser un ouvrage matériel ou intellectuel ou à fournir un service
moyennant un prix que le client s'oblige à lui payer.
|
|
2099. The
contractor or the provider of services is free to choose the means of
performing the contract and no relationship of subordination exists between
the contractor or the provider of services and the client in respect of such
performance.
|
2099. L'entrepreneur ou le
prestataire de services a le libre choix des moyens d'exécution du contrat et
il n'existe entre lui et le client aucun lien de subordination quant à son
exécution.
|
[4]
We are
satisfied that the judge stated the law on the legal principles governing and
distinguishing the two types of contract correctly. He then applied them to the
facts of the case. It was during this application that, according to the
appellant, the judge committed both errors of law and palpable and overriding
ones.
[5]
Based on
the documentary and testimonial evidence, the judge tried to establish whether
there was a relationship of subordination between the worker and the
respondent. In compliance with the case law on this point, he therefore weighed
a certain number of factors, including the intention of the parties to the
contract.
[6]
The
appellant submits that the judge erred in law by ruling that the criteria of
ownership of the work tools, the chance of profit and the risk of loss, and the
integration of the worker in the business were not of great help in this case.
[7]
The judge
did not ignore these criteria. He considered them and provided the reasons for
which he found them of little use: see paragraph 16 of the reasons for his
decision. It was up to the judge to determine the weight to be given to these
criteria. It is also well established that the weight to be given to each of
these indicators or factors when analysing the legal nature of the relationship
between parties depends on the circumstances of each case. In 671122 Ontario
Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001]
2 S.C.R. 983, at paragraph 48, Justice Major wrote the following:
[48] It
bears repeating that the above factors constitute a non-exhaustive list, and
there is no set formula as to their application. The relative weight of
each will depend on the particular facts and circumstances of the case. [See also Combined Insurance Co. of America v. Canada (Minister
of National Revenue – M.N.R.), 2007
FCA 60, at paragraph 35.]
[8]
Basically,
the judge concluded that the factors, which were the subject of criticism by
the appellant, were less useful for the analysis of the relationship between
the parties than those which he had previously identified and discussed. At
best, one could speak of an error of mixed fact and law in this case, which if
it exists, is not, in our opinion, a palpable and overriding one.
[9]
In fact,
the appellant is asking us to redo the analysis and re-weigh some of the
factors usually taken into consideration when determining the legal nature of a
work relationship between parties. But it was the judge’s role to “. . .
determine the legal nature of the overall relationship between the parties in a
constantly changing working world”, and “[t]his is what he did:” see Grimard
v. Canada, 2009 FCA 47, 2009
D.T.C. 5056 (F.C.A.) at paragraph 67, citing Le Livreur Plus
Inc. v. The Minister of National Revenue and Laganière, 2004
FCA 68, at paragraph 17, Wolf v. Canada, [2002] 4
F.C. 396 (F.C.A.) and Attorney General of Canada v. Les
Productions Bibi et Zoé Inc., 2004 FCA 54, [2004] F.C.J. No. 238 (QL).
[10]
This said,
we can but repeat what this Court wrote in Grimard, above, at paragraph
67:
It
is possible that, were a microscopic examination of the judge’s analysis of
some of the indicia to be conducted, it would be necessary to make some
distinctions and clarifications. However, [we] cannot find that there is such a
palpable and overriding error in this analysis, to paraphrase the standard of
the Supreme Court, that requires and warrants our intervention.
[11]
For these
reasons, the appeal will be dismissed with costs.
“Gilles
Létourneau”
Certified
true translation
Johanna
Kratz
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