Dufour v. M.N.R., docket 97-940-UI

Date: 19980924

Docket: 97-940-UI

BETWEEN:

GINETTE DUFOUR,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

2976994 CANADA INC.,

Intervener.

Reasons for Judgment

Charron, D.J.T.C.C.

[1] This appeal was heard at Montréal, Quebec on July 13, 1998 to determine whether the appellant held insurable employment within the meaning of the Unemployment Insurance Act (“the Act”) from October 17, 1995 to October 17, 1996 when she was employed by 2976994 Canada Inc., the payer.

[2] In a letter dated May 20, 1997 the respondent told the appellant that the employment in question was not insurable on the ground that no employer-employee relationship existed between herself and the payer.

Facts

[3] The facts on which the respondent relied in arriving at his decision are set out as follows in paragraph 5 of the Reply to the Notice of Appeal:

[TRANSLATION]

(a) The payer, which was incorporated on November 29, 1993, manages five 24-unit apartment buildings, which it owns, and ten other buildings owned by other businesses or individuals; (admitted)

(b) the payer’s shareholders were:

Claude Madore, vice-president, with 50% of the shares;

Léo Maher, president, with 25% of the shares;

Claire Jodoin Maher, secretary-treasurer, with 25% of the shares; (admitted)

(c) the payer hired the appellant as a self-employed worker and had her sign a [TRANSLATION] “contract for services” when she began working; (denied)

(d) the appellant was hired as a rental and collections agent and her duties were the following: correspondence, garnishment of wages, submissions to the Régie des loyers, taking telephone calls, receiving tenants' complaints and arranging appointments for visits and/or the signing of leases; (denied as drafted)

(e) the appellant was paid by the piece, that is, according to the type of service she rendered and according to the quantity of services rendered; (denied)

(f) the appellant worked partly in the payer’s offices and partly on the road; (admitted)

(g) the appellant had full control over when she worked, as she planned her working hours around her appointments; (denied)

(h) the appellant was reimbursed for gasoline and parking expenses incurred in the course of her work; (admitted)

(i) the appellant quit her job on her own initiative on October 17, 1996. (denied as drafted)

[4] The appellant admitted all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal, except those which she denied or claimed to have no knowledge of, as indicated in parentheses at the end of each subparagraph.

[5] Although according to the Reply to the Notice of Appeal the respondent had determined that the employment at issue was not insurable, the respondent would have been prepared to consent to judgment had the intervener not intervened.

Testimony of Ginette Dufour

[6] Ms. Dufour stated that she was hired by the payer as a rental and collections agent, but denied that she was authorized to sign leases. She worked partly in the payer’s office and partly on the road. Her automobile expenses, such as parking and gasoline, were reimbursed by the payer in addition to her salary. The appellant was paid $350 a week at first and later received $370. Her work schedule was imposed by the payer. She worked from 12 noon to 8 p.m. five days a week. The payer later reduced her time by one day a week. It was eventually made clear to her that she was no longer indispensable and she quit. The appellant stated that the contract of service she signed (Exhibit I-1) was imposed on threat of dismissal in September 1996 and had not been signed in March 1995, and that she submitted her resignation on October 4, 1996, to be effective on October 17 (Exhibit I-2). Before she left, the payer had told her that her hours of work were to be altered to from 1 p.m. to 9 p.m. Her office was located in Apt. 2 at 8121 24ième Avenue. Her desk, filing cabinets and fax machine were owned by the payer. Ginette Dufour received her salary regularly and without fail.

Testimony of Claire Jodoin Maher

[7] According to Ms. Jodoin Maher, the appellant’s equipment and furniture—telephone, desk, chairs, filing cabinets, pencils, stationery and fax machine—were supplied by the payer. It was the payer that set the appellant’s schedule to ensure that [TRANSLATION] “her appointments were kept”. The appellant had to collect her rent by the 23rd of the month and had to report her deposits every evening, according to Ms. Jodoin Maher’s instructions. The position held by the appellant was absolutely essential to the business because Ms. Jodoin Maher was swamped with work. The appellant had an office at her disposal on the payer’s premises. The payer supervised the appellant’s work to ensure that it was done properly.

Analysis of the facts in light of the law

[8] The Court must now determine whether the appellant’s activity was consistent with the concept of insurable employment, that is, whether a contract of service existed.

[9] The courts have laid down four necessary tests for determining whether a contract of service exists. The leading case on this point is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. The tests in question are (1) control; (2) ownership of the tools; (3) chance of profit; and (4) risk of loss. In Wiebe Door Services Ltd. v. M.N.R., the Federal Court of Appeal added the degree of integration to this list, but the list is not exhaustive.

[10] The evidence showed that the appellant worked under the payer’s direction and that a relationship of subordination existed between them. It was the payer that owned the equipment needed to operate the business. Only the payer could make profits or incur losses in operating its business, not the appellant, who received only a fixed salary. Finally, the appellant worked on the payer’s premises and was fully integrated into its business. I therefore conclude that the payer was operating a business and that the appellant was in its employ during the period at issue.

[11] It seems to me that the appellant has discharged the burden of proof and that her employment was insurable.

[12] Her appeal is accordingly allowed and the respondent’s decision is reversed.

Signed at Ottawa, Canada, September 24, 1998.

“G. Charron”

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 12th day of April 1999.

Stephen Balogh, Revisor