Date:
20080411
Docket: A-199-07
Citation: 2008 FCA 132
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
RYER J.A.
BETWEEN:
NATIONAL CAPITAL OUTAOUAIS SKI
TEAM
Appellant
and
THE MINISTER OF NATIONAL REVENUE
and JEAN BELANGER
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issue
[1]
This is an
appeal against a decision of Justice Campbell from the Tax Court of Canada (the
judge) who confirmed a ruling of the minister of National Revenue (minister)
that respondent Jean Belanger was employed in insurable employment by the
appellant under a contract of service during the period September 1, 2004 to
December 13, 2005 pursuant to paragraph 5(1)(a) of the Employment
Insurance Act, S.C. 1996, c. C-23.
[2]
The judge
also affirmed the minister’s decision that Mr. Belanger was employed in a
pensionable employment pursuant to paragraph 6(1)(a) of the Canada
Pension Plan.
[3]
The appeal
before us bears on these two legal findings made by the judge. The appellant
contends that the respondent Jean Belanger was a contractor and, therefore, the
nature of the contract between the parties was a contract for services.
Analysis of the grounds of appeal
[4]
The
appellant submits that the judge erred in law in looking first to the reality
of the relationship between the parties based on the facts rather than looking
first to see whether the intent of the parties is consistent with that reality.
I believe this complaint is not founded.
[5]
More
frequently than not, the intention of the parties is not stated in writing and
has to be ascertained. Where that intention is stated but the subject of a controversy
as in this case, the alleged legal nature of the parties’ contractual
relationship and the genuineness of the contract are put in issue. It is then
quite proper, indeed necessary, to look at all the facts to see what legal
relationship they reflect. This is precisely what the judge did in the present
instance.
[6]
In
paragraph 40 of her reasons for judgment, the judge acknowledged the
conflicting opinions as to the nature of the parties’ relationship. It is in
that context that she asserted that “courts must evaluate all of the relevant
facts and circumstances to determine if these reflect the intention that the
parties originally stated”.
[7]
At
paragraph 17 of its memorandum of fact and law and the hearing before us, the
appellant contended that the judge should have started her analysis of the
parties’ relationship with the presumption that Mr. Belanger was a contractor.
[8]
It is
misleading and confusing to invoke the existence of a presumption with respect
to the intention of the parties to the contract because it calls for a rebuttal
of that presumption by the minister. Indeed, this approach runs contrary to the
way the law and the system operate in matters of insurability of employment.
[9]
As a
matter of fact, the minister’s assessment of the overall legal relationship of
the parties to a contract is based on assumptions of fact that the minister
makes. The assumed facts are presumed to be true unless they are rebutted: see Le
Livreur Plus Inc. c. Le Ministre du Revenu national et Laganière, 2004 FCA
68, paragraph 12. The burden of rebutting the assumptions and the presumption
of truth or correctness which attaches to the assumed facts is on the opposing
party, either the employer or the employee as the case may be: ibidem, Dupuis
c. Canada (Ministre du Revenu national – M.R.N.), 2003 FCA 335, at
paragraph 4.
[10]
In the
case at bar, the minister made no exception. He assumed a number of facts which
led him to conclude that Mr. Belanger was in an employer/employee relationship.
He assumed as a fact that the parties were engaged in that type of
relationship. The burden was on the appellant to rebut that assumption.
[11]
On an
appeal from the decision of the minister, the role of the judge is to verify
the existence and accuracy of all the facts and the assessment that the
minister made of them with a view to determining if the decision of the
minister still appears reasonable: ibidem, at paragraph 13. The judge
cannot be blamed for having done that in the present instance and, as she said
quoting our Court in Combined Insurance Company of America v. M.N.R. and Drapeau, 2007 FCA 60, at paragraph
35, “there is no predetermined way of applying the relevant factors and their
importance will depend on the circumstances and the particular facts of the
case”.
[12]
The
appellant also contends that the judge erred in law in focusing its analysis on
the four factors test set out in Wiebe Door Services Ltd. v. M.N.R.,
[1986] 3 F.C. 553. It submits that its situation is similar to that which
prevailed in the case of Royal Winnipeg Ballet v. Minister of National
Revenue, 2006 FCA 87 (RWB) in which this Court, notwithstanding an
extensive degree of control over the dancers, characterized the relationship
between the dancers and the Royal Winnipeg Ballet as one of independent
contractor. I disagree with the appellant.
[13]
In the RWB
case, there was an umbrella agreement between the parties as to their legal
status and relationship. There was uncontradicted evidence that the parties
shared a common understanding that the dancers were self-employed and not
employees. Unlike our case, there was no lis between the parties with
respect to their relationships.
[14]
In
addition, the notion of control in the RWB case had a different tinge.
It was “needed to stage a series of ballets over a well planned season of
performances”: ibidem, at paragraph 66. In other words, the control
aimed at orchestrating a choreographic performance. This is not the case with
Mr. Belanger.
[15]
The
appellant argues as a fourth ground of appeal that the judge ignored some
evidence which, it says, would have tipped the scale in favour of leaving
unquestioned the contractor relationship which existed between the parties.
[16]
There is
no need to review the specific allegations made by the appellant in this
respect because either they bear on issues which, for the most part, have been
considered by the judge or were not sufficiently material to overcome the
conclusion that she reached.
[17]
Finally,
the appellant submitted that it is a not-for-profit organization and not a
business per se. It is, it says, merely a framework which gives athletes
an opportunity to strive towards national team status. While that may be how
the appellant perceives itself, the fact remains that it is a corporation
which, legally, can be an employer within the meaning of the Employment
Insurance Act and the Canada Pension Plan. This is what the minister
found and the judge affirmed.
[18]
After a
careful analysis of the impugned decision and the written and oral submissions
of the parties, I am satisfied that the judge correctly ascertained the facts
and the law applicable in these matters. I am also satisfied that she made no
reviewable errors when she applied the law to the facts.
[19]
For these
reasons, I would dismiss the appeal without costs. As the appellant did not
seek costs in case of a successful appeal, I think it is only fair that it
should not be made liable to pay them if it lost the appeal.
“Gilles
Létourneau”
“I
agree
J.D.
Denis Pelletier J.A.”
“I
agree
C. Michael Ryer J.A.”
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