Côté v. M.N.R., docket 97-513-UI

Date: 19980828

Docket: 97-513-UI

BETWEEN:

SUZANNE CÔTÉ,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

CHARRON, D.J.T.C.C.

[1] The object of this appeal heard at Québec, Quebec, on June 17, 1998 was to determine whether the appellant held insurable employment within the meaning of the Unemployment Insurance Act ("the Act") during the period from November 21 to December 2, 1994, when she was employed by the Centre d'Énergie Humaine et Universelle Saguenay Lac-St-Jean Inc., the payer.

[2] By a letter dated January 15, 1997 the respondent informed the appellant that this employment was not insurable because it was not held under a contract of service.

Statement of facts

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

[TRANSLATION]

(a) the payer is a non-profit organization which was established in the early 1990s; (admitted)

(b) the purpose of the payer was to give courses dealing with energy transfer; (admitted)

(c) in late 1993 there were 10 people on the payer's board of directors; (admitted)

(d) the appellant was one of the 10 and held the position of treasurer; (admitted)

(e) the payer had no paid employees and the instructors (or teachers) gave the courses free of charge; (denied)

(f) in November 1994 the payer entered into an agreement with the appellant pursuant to which she was to retranscribe three training booklets; (denied)

(g) the payer obtained approval for total remuneration of $560 for this work contract; (denied as written)

(h) that remuneration was based on two 40-hour work weeks at $7 an hour; (admitted)

(i) the appellant worked at home and had no predetermined schedule; (denied)

(j) she used her own computer and supplied the paper required for the retranscribing and did so without compensation by the payer; (denied)

(k) the payer was not concerned with either the appellant's work methods or the number of hours she put in, but only with the results; (denied)

(l) during the period at issue there was no employer-employee relationship between the appellant and the payer, but rather a contract for services. (denied)

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

Testimony of Suzanne Côté

[5] This individual worked for the payer from November 21 to December 2, 1994. She has also been on the board of directors and held the position of treasurer for two years. The purpose of the payer's group was to educate beginners in the use of energy transfers for healing disease by means of chakras. The appellant was hired for a two-week period at $7 an hour for a maximum of 40 hours a week. The maximum salary paid was to be $560 (Exhibit A-1). The appellant worked from 8:00 a.m. to 5:00 p.m. and was paid by cheque from whose amount source deductions had been taken (Exhibits A-2, A-3 and A-4). She did her work at home because the payer had no premises of its own. The appellant supplied her computer and paper. If Ms. Côté had to make photocopies, the payer paid for them. Mirette Pellerin, vice-president of the payer, supervised the appellant's work by telephoning her several times a week to find out where she was with the work. The other members met five or six evenings a week to update the material in question. The three booklets to be updated were filed as Exhibit A-5. The appellant will still be a member of the payer for another year. At the time she obtained this employment, she was looking for work. A committee of four persons met three times a week to decide what changes should be made to the three booklets. From May to November 1994 Suzanne Côté worked for an apartment building, but did not receive unemployment insurance benefits after her departure because she lacked one week of insured employment. In her capacity as treasurer she collected money owed to the payer and she did this work free of charge, but did not give lectures. The payer had no other employee, except for Christiane Boulay in 1992. The payer’s head office is located in the office of Diane Lalancette, a member of the payer, in Chicoutimi. The appellant's treasurer's duties took up a half-day of her time every week. The booklets filed as Exhibit A-5 were the basis for training members and were indispensable. Suzanne Côté made an application for unemployment insurance benefits which was accepted. In 1992 the payer had 12 members; it now has between 1,000 and 1,500 recruits.

Testimony of Monique Dion

[6] Ms. Dion, an appeals investigation officer, did an investigation of the appellant and contacted Mirette Pellerin, Mado Tremblay and the appellant on October 9, 1996. The appellant told her she had no work schedule but worked from 8:00 a.m. to 5:00 p.m. every day. She was also treasurer, for which she was not paid. For the purposes of her work she provided her own computer, diskettes, paper and printer. Mirette Pellerin did not know what Suzanne Côté's working hours or her salary were. Mado Tremblay, Louise Bérubé and Marcel Tremblay were responsible for amending the text of the three booklets. Suzanne Côté's duties were determined by the board of directors. According to Ms. Dion, the booklets were necessary for the payer to survive, but incidental; the appellant did not receive instructions from the payer, but had two or three preliminary meetings with it, and then five or six more to ensure the performance of the work. She was undoubtedly the best prepared to do this work.

Analysis of the facts in the light of the law

[7] It must now be determined whether the appellant's activity was included in the concept of insurable employment, that is, whether or not there existed a contract of employment.

[8] The courts have laid down four essential tests for determining whether there is a contract of employment. The leading case in this regard is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. Those tests are the following: (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 thereto the degree of integration, but this list is not exhaustive.

[9] The evidence showed that the work done by the appellant was done under the direction of the payer and that a relationship of subordination existed between them. It was the payer that owned the business necessary for the carrying on of its activities. It was the payer alone who could make profits or incur losses in the operation of its business, not the appellant, who received only a fixed salary. Finally, the appellant did her work at home as the payer had no permanent premises in which it could offer her space.

[10] I therefore conclude that the payer operated a business and that the appellant was employed by it during the period at issue.

[11] The appeal is accordingly allowed and the respondent's determination is reversed.

Signed at Ottawa, Canada, this 28th day of August 1998.

"G. Charron"

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 31st day of March 1999.

Erich Klein, Revisor