St-Louis v. M.N.R., docket 97-807-UI

Date: 19980617

Docket: 97-807-UI

BETWEEN:

MICHEL ST-LOUIS,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Lamarre Proulx, J.T.C.C.

[1] This is an appeal from a decision by the Minister of National Revenue ("the Minister") that the appellant did not hold insurable employment with La Coopérative Forestière de Papineau-Labelle, hereinafter referred to as "the payer" or "the Coopérative", for the period from August 7, 1995 to February 16, 1996.

[2] The Minister based his decision on s. 3(1)(a) of the Unemployment Insurance Act ("the Act").

[3] The facts on which the Minister relied in arriving at his decision are set out as follows in paragraph 4 of the Reply to the Notice of Appeal ("the Reply"):

[TRANSLATION]

(a) the payer operates in the forestry sector;

(b) the appellant operates a skidder business and an outfitting business;

(c) the appellant was hired by the payer as a skidder operator to pick up and transport wood cut by a logger;

(d) the appellant worked together with the logger;

(e) the appellant supplied his own skidder worth $42,000;

(f) the appellant also supplied two or three power saws valued at about $1,000 each;

(g) the appellant was paid a fixed amount of $750 a week for his work and a lump sum for the rental of his machinery, which was determined according to the quantity and type of wood cut;

(h) the payer assigned a sector for deforestation in accordance with the requirements of the Quebec Ministère des ressources naturelles;

(i) the time worked by the appellant was not supervised by the payer;

(j) the appellant received no training from the payer, as the appellant had extensive experience in this type of work;

(k) the appellant had the right to select his own working method;

(l) the payer was interested only in the final product, that is, the quantity and quality of the wood cut;

(m) the appellant was responsible for maintenance of and repairs to his equipment;

(n) the appellant reported business income from forestry each year;

(o) the appellant worked for other payers during the period in question;

(p) according to the records of employment prepared for the appellant, he was paid $750 a week, that is the maximum insurable earnings; and

(q) there was no contract of service between the appellant and the payer . . . .

[4] The appellant admitted the facts set out in the Reply. On subparagraph 4(b) of the Reply, he gave no specific answer as regards either the outfitting business or the skidder business.

[5] As to subparagraph 4(f) of the Reply, the appellant explained that he supplied a power saw to the logger with whom he worked and kept one with him on his skidder. He explained that he preferred to supply the logger with a power saw because in this way he was sure the logger would have a power saw in good order and no time would be lost. He had one with him on the skidder to put the finishing touches to the trees he left along the road, which would then be measured and recorded by the scaler from the Coopérative.

[6] On the choice of a logger, the appellant explained he had to choose one among those approved by the Coopérative. At the same time, he readily admitted that as in any team, a person works better with one partner than with another, and that he tried to have a logger on his crew with whom he knew he worked well. However, he was still subject to the seniority rules in choosing a logger.

[7] On subparagraph 4(g) of the Reply, the appellant explained that he was not always paid $750 a week, but on average it came to approximately that amount.

[8] On subparagraph 4(i) of the Reply, the appellant said that he had to provide the necessary services during specified hours, between 7:00 a.m. and 4:00 p.m. from April to October and between 7:30 a.m. and 4:30 p.m. from November to March. He also said that a foreman supervised him. This foreman assigned the sector to be cleared by him and the logger. He said that the foreman was responsible for daily supervision of five or six forest worker crews. Among other things, this supervision involved ensuring that the forest workers did not exceed the hours and that there were no accidents. The foremen were known as cutting foremen.

[9] The appellant explained that the Coopérative consists of a group of workers, namely foremen, forestry engineers, skidder operators and loggers.

[10] On the allegations in subparagraphs 4(b), (n) and (o) of the Reply, it would have been helpful if the Court had during the cross-examination been shown the Minister's evidence in respect of these allegations. On subparagraph 4(p) of the Reply, which appears to question the payment of $750 a week, it would have been useful to have been shown during the cross-examination in what way the records were consistent with or differed from the computerized records entered as Exhibit I-1.

[11] However, counsel for the respondent asked the appellant to explain the computerized pay records made up by the Coopérative for the appellant for each of the weeks at issue here. The appellant referred to the record of January 19, 1996 bearing handwritten number 2776. He explained that use of the skidder was paid for based on the volume of wood cut and transported to the edge of the logging road. In this example the volume was 85.7017 cubic metres and it was paid for at $4.75 per cubic metre. This is referred to as [TRANSLATION] "machine pay". Below this is the men's pay. The first one mentioned is the appellant, who was paid $2.40 per cubic metre, and the other, G. Binette, the logger, was paid $2.60 per cubic metre. Beside Mr. Binette's gross pay there is the sum of $19.71 for the saw. This amount is indicated as being for Mr. Binette although, according to the appellant's testimony, it was he who supplied the logger with the power saw.

[12] There were in fact eight computerized records made out in the appellant's name for the same week of January 19, 1996. The one to which the appellant referred was the third. The first bore the handwritten number 2772 and only one man's name is mentioned for both duties: P. St-Louis. A handwritten entry stated that the logger's pay was paid not to Paolo but to Gabriel Léonard. The second, bearing the handwritten number 2777, indicated two names, that of the appellant as skidder operator for a gross amount of $90.64 and that of G. Binette for a gross amount of $111.08. The fourth record bore the handwritten number 2767. In this case the appellant received a gross amount of $263.75. The fifth computerized record bore the handwritten number 2772. Although it was made up in the appellant's name, it was not he who worked but P. St-Louis. Here again the same individual performed both operations and, it must be said, for a very small amount: $10.90 as skidder operator and $13.06 as logger. On the sixth record, the appellant acted as skidder operator for the sum of $66.63. The logger was G. Léonard. He received $69.61. The seventh record did not contain the appellant's name, although it was made out to him. The skidder operator was again P. St-Louis at a gross amount of $230.83 and the logger was G. Léonard at a gross amount of $276.82. The eighth record of January 19, 1996 gives P. St-Louis as skidder operator at a gross amount of $571.64 and G. Léonard as logger at a gross amount of $699.13.

[13] There is not much difference in the other weeks, except that the appellant frequently worked not as a skidder operator but as a logger. Further, it is clear from the information in this exhibit that the earnings of $750 a week were far from correct. There were not variances of some $20 to $30, as the appellant stated in his testimony. There were weeks for which nothing at all was indicated and weeks which were well below the amount shown, although some weeks were above it. The record of employment mentioned in subparagraph 4(p) of the Reply thus in no way corresponds to the facts.

[14] It becomes clear from a careful reading of the documents in Exhibit I-1 that the appellant was carrying on a logging business and provided the use of a skidder and power saws to workers. He worked at times as a skidder operator and at times as a logger, but often he did not work at all and it was other people who worked with his skidder or power saws. However, it was he who was paid by the Coopérative in every case, not the workers mentioned at the bottom of the records.

[15] The Coopérative assigned him sectors to deforest and paid him according to the quality and quantity of the wood cut. The cutting foreman's job was to ensure that the contractors' work complied with government standards and that there were no problems. The appellant might work himself and he might have others work for him. In all cases, the Coopérative's payment was made to him in its entirety. The appellant provided the service of a contractor, not that of an employee.

[16] Counsel for the respondent referred to the Federal Court of Appeal's judgments in Attorney General of Canada v. Rousselle et al. (1990), 124 N.R. 339, and Attorney General of Canada v. Charbonneau (1997), 207 N.R. 299. At the hearing I thought the facts of the instant case were different from those in the second of these decisions. Based on Exhibit I-1, I conclude that the facts were not different, in that the appellant also acted in the instant case as a contractor and not as an employee.

[17] The appeal is accordingly dismissed and the determination at issue affirmed.

Signed at Ottawa, Canada, June 17, 1998.

"Louise Lamarre Proulx"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 25th day of November 1998.

Stephen Balogh, Revisor