[OFFICIAL ENGLISH TRANSLATION]
Date: 20021114
Docket: 2002-140(EI)
BETWEEN:
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
PASCALE CHOQUETTE,
Intervener.
AND
Docket: 2002-1642(EI)
AMBULANCE ST-JEAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] These appeals were heard on common
evidence at Montréal, Quebec, on August 29, 2002.
[2] The appellant instituted an appeal
from the decisions of the Minister of National Revenue (the
"Minister") determining that the employment by the
appellant of Pascale Choquette during the period in issue,
that is, from September 26, 1999, to September 28,
2000, and of Mélissa Roy for the day of
September 29, 2001, was insurable on the ground that it met
the requirements of the contract of service.
[3] Subsection 5(1) of the
Employment Insurance Act (the "Act")
reads in part as follows:
5(1) Subject to subsection (2), insurable employment
is
(a) employment in Canada by one or more
employers, under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other
person and whether the earnings are calculated by time or by the
piece, or partly by time and partly by the piece, or
otherwise;
...
[4] The burden of proof is on the
appellant. It has to show on a balance of probabilities that the
Minister's decisions are incorrect in fact and in law. Each
case stands on its own merits.
[5] In making his decisions, the
Minister relied on the following assumptions of fact, which are
similar in both cases, and which the appellant admitted, denied
or had no knowledge of:
[TRANSLATION]
(a) the appellant is
a non-profit organization that has been in existence for more
than 100 years; (admitted)
(b) the
appellant's mission is to provide volunteer first aid
services and training in first aid and resuscitation;
(admitted)
(c) the appellant
employs some 15 persons on a full-time basis and calls upon
80 to 90 part-time instructors; (denied)
(d) the appellant
entered into first aid training agreements with various clients,
individuals and businesses; (admitted)
(e) the worker was
hired by the appellant as a first aid instructor; (denied)
(f) the
training courses varied in length from one half-day to
three days; (admitted)
(g) the clients were
the clients of the appellant, not the worker; (admitted)
(h) the appellant
[sic] had nothing to negotiate with the clients;
(admitted)
(i) the worker
had to follow the course plans established by the appellant;
(denied)
(j) the worker
worked from the office of the appellant or the client;
(admitted)
(k) the worker had
to comply with the schedule of the course requested by the
appellant's client; (denied)
(l) the
worker's comings and goings and hours worked were monitored
by the appellant's client; (denied)
(m) the appellant
[sic] introduced herself to the client as the
appellant's instructor; (no knowledge)
(n) the client's
participants took an exam and completed a course evaluation form
once the course was finished; (admitted)
(o) at the end of
the session, the worker submitted to the appellant a list of the
participants, the exam results and the evaluations completed by
the participants; (admitted)
(p) if the worker
was sick or unable to report for work, the appellant replaced
her; (denied)
(q) the worker was
paid per day or per half-day of training; (admitted)
(r) the remuneration
had been determined by the appellant alone; (denied)
(s) the worker's
remuneration was $125 a day or $65 a half-day; (admitted)
(t) the worker
bore no expenses in the context of her duties with the appellant;
(denied)
(u) the worker was
reimbursed for her travelling expenses if she had to travel more
than 35 kilometers from the appellant's office;
(admitted)
(v) the appellant
was responsible for costs if equipment broke down; (denied)
(w) the worker billed the
appellant her daily remuneration; (admitted)
(x) the worker had
no chance of profit or risk of loss in her duties with the
appellant; (denied)
(y) the course
program and all the material, dummies, bandages, projectors and
videos necessary to give the training were supplied by the
appellant; (denied)
(z) the worker's
duties were completely integrated into the appellant's
activities. (denied)
[6] The appellant is a non-profit
organization that has been in existence for more than
100 years and whose mission is to provide volunteer first
aid services and training in first aid and resuscitation.
[7] The appellant employs 15 to
18 full-time employees and calls upon some 80 to
90 part-time instructors.
[8] The appellant entered into first
aid training agreements with various individual and corporate
clients. The clients were those of the appellant, not of the
workers. The workers had nothing to negotiate with the clients.
The workers worked from the office of the appellant or of the
client.
[9] Ida Khouri, the
appellant's director of operations for the province of
Quebec, explained that she had provided technical support to
workers Pascale Choquette and Mélissa Roy.
[10] To become an instructor, it was a
prerequisite to take a supervisory course, but meeting that
prerequisite did not necessarily provide instructors with
work.
[11] To obtain work, the workers had to
inform the appellant when they were available, and the work was
given to them on a freelance basis in accordance with their
availability. The workers had no guarantee of work and, if they
were no longer interested in working, they simply stopped giving
the appellant their availability. Their duties were to
demonstrate techniques and train participants.
[12] Once the workers' availability was
established, the coordinator gave them assignments, which the
workers could turn down without giving any reasons.
[13] Once the assignment was accepted, the
workers had to inform the coordinator if it was impossible for
them to continue the assignment due to illness or other reasons,
and the coordinator took it upon herself to find a
replacement.
[14] If the workers were absent, they were
not paid. The remuneration established by the appellant was $125
a day or $65 a half-day. The remuneration was paid by the
appellant.
[15] The workers submitted their claim for
days worked on paper bearing the appellant's letterhead. The
workers were paid for days and half-days worked and were not
entitled to annual or sick leave or other leave days. However, if
for some reason beyond the workers' control, the assignment
was cancelled and they were already at the work site, they were
paid the half-day rate.
[16] Fida Khouri described a
worker's typical day; he or she would go to the premises of
the appellant's client and give courses to the client's
participants.
[17] The workers were responsible for
transportation when travelling less than 30 kilometers, and,
when travelling more than 35 kilometers, were compensated by
the appellant, which billed the amount to its client.
[18] According to Ms. Khouri, workers
may, at their discretion, use a course syllabus
(Exhibit A-1, tab 5) in addition to a guide
(Exhibit A-1, tab 6) prepared and supplied by the
appellant.
[19] The billing of the worker
Pascale Choquette during the period in issue for courses
given for the appellant or the C.S.S.T. appears in
Exhibit A-1, tab 8. Of the courses the worker
gave, 80 percent were at the request of the C.S.S.T. and
20 percent at the request of the appellant.
[20] A first aid training guide was provided
by the C.S.S.T., which the appellant asked the worker to
accept.
[21] According to Ms. Khouri, workers
are not supervised when they give courses. There is no dress
code, but workers must be suitably attired. The appellant
considers that jeans are not acceptable.
[22] Offices are provided by the appellant
when courses are given at its premises. A room is made available
to workers for lunch.
[23] A worker has to submit to the appellant
a course evaluation written by the student on a form provided by
the appellant (Exhibit A-1, tab 9).
[24] The appellant provides workers with
accessories: dummies, videos, blackboards and activity notebooks.
However, some workers have their own accessories.
[25] Instructor-workers must take courses
every three years at their own expense. Liability insurance
is paid for by the workers.
[26] Some instructors are unionized
employees of the appellant, and they are given courses paid for
by the appellant, annual leave, sick leave and so on.
[27] In cross-examination, when questioned
by counsel for the respondent on the instructor's guide
prepared by the appellant (Exhibit I-1, tab 1),
Fida Khouri explained that the guide was highly recommended.
She added that, if workers did not teach the right technique, the
coordinator assigned them no more work. Under the heading
"Programmed Teaching Method" on page 5, the guide
states:
[TRANSLATION]
Every activity must be carried out in the prescribed order so
that the student can acquire the necessary theoretical and
practical knowledge to pass the practical evaluation and the
written examination and therefore obtain a first aid
certificate.
[28] If a complaint is filed by a student or
client, the appellant assigns another worker.
[29] Information on teaching C.S.S.T.
courses is provided in Exhibit I-1, tab 2. That
document is signed by Fida Khouri in her capacity as
regional master instructor and reads in part as follows:
[TRANSLATION]
To: All CSST instructors
From: Regional Master Instructor
Information on teaching CSST courses
0
The time allotted for each course module must be adhered to.
0
The course syllabus must be followed. For example, do not switch
modules between morning and afternoon or between day 1 and
day 2.
0
There must always be a second instructor if there are more than
eight candidates.
0
The second half-day instructor must arrive on time and not leave
until after the course is finished. You must always remain in the
classroom except on breaks.
0
Any demonstration of first aid material other than that in the
CSST volume is prohibited.
0
The promotion and/or sale of material during course hours, breaks
or lunch is prohibited.
0
The use of video cassettes other than those of the CSST is
prohibited.
0
Do not confuse St. John Ambulance standards with those of
the CSST. See examples below.
|
St. John Ambulance
|
CSST
|
|
A.R.:
During A.R., the victim's pulse is taken every few
minutes.
|
A.R.:
During A.R., the victim's pulse is taken every
minute.
|
|
Hypothermia:
If you suspect hypothermia, take the pulse every one or
two minutes.
|
Hypothermia:
Take 30 to 45 seconds to check the victim's
pulse.
|
|
Normal resting pulse rate for an adult:
Between 50 and 100 beats/minute.
|
Normal resting pulse for an adult:
Between 60 and 100 beats/minute.
|
|
Responsiveness:
To assess responsiveness, first-aiders should talk to
the victim, then tap the victim's shoulders.
|
Responsiveness:
After stimulating the victim verbally, the first-aider
may try painful stimulation (rubbing the sternum and
pinching the shoulders).
|
0 The St. John neck brace
is not in the CSST volume.
0 The pad dressing is not in
the CSST volume.
0 The administration of ASA
(Aspirin) to victims suffering from chest pains is taught only in
St. John Ambulance courses.
0 Two-rescuer CPR is not part
of the CSST course.
0 Trainers must be able to base
their instruction on situation scenarios rather than on
theory.
0 The evaluation criteria
stated in the trainer's guide must always be complied
with.
. . .
[30] In an organization chart filed as
Exhibit I-2, the name of worker Pascale Choquette
appears as an instructor. That organization chart also includes
the "Training Structure - Montreal Region", which reads
as follows:
[TRANSLATION]
· Definition
of roles and responsibilities
·
Instructor:
- Teach in
accordance with St. John Ambulance norms and standards;
- Maintain
knowledge, skills and professionalism;
- See your M.I. once
a year (minimum); and
- Keep your M.I. up
to date (administration).
·
Master-instructor:
- Same
responsibilities as an instructor, plus:
- train, supervise,
monitor and GUIDE instructors in accordance with
St. John Ambulance norms and standards;
- Transmit relevant
information to your instructors; and
- Meet with your
instructors at least once a year.
[31] Fida Khouri explained the
organization chart as follows: the master-instructor is a coach,
and the instructor may refer to the master-instructor if there is
a problem. She added that the master-instructor supervises
instructors' training.
[32] A document entitled
"Memorandum", dated December 28, 1999, and filed
as Exhibit I-1, tab 5, was sent to all freelance
instructors of the downtown Montréal branch of the
St. John Ambulance, calling them to a meeting on
January 29, 1999.
[33] A document entitled "Statement of
Work" filed in evidence as Exhibit I-1,
tab 7, refers to bid acceptance criteria, the cleanliness of
premises and material, equipment, insurance, the supply of
services and so on. Fida Khouri said that the purpose of
that statement was to clarify the appellant's goals and
objectives.
[34] Pascale Choquette, a witness for
the respondent, said that she was an instructor for the C.S.S.T.
and the appellant. She had undertaken to give instructor courses
at the appellant's premises. Although the appellant
considered that the worker was self-employed during the period in
issue, Pascale Choquette had questioned her employee
status.
[35] She accepted self-employed worker
status because her schedule was flexible and that suited her
because she had family responsibilities.
[36] When she worked for the C.S.S.T., she
was considered an employee, whereas she had been considered a
self-employed worker when she was in the appellant's
service.
[37] Considering her interest in that type
of work, Pascale Choquette took a three-day general course
and a five-day instructor's course with the appellant.
[38] As supervisor, master-instructor
Marc Malette (Exhibit I-4) recommended the worker
for an instructor's certificate.
[39] When she was confirmed as an
instructor, she received the instructor's guide to which she
was to refer in order to verify whether her teaching method met
the guide's standards.
[40] The witness said that the appellant had
decided on the course outline of courses given to clients
(Exhibit I-1, tab 1).
[41] The witness explained that she had to
give an evaluation of each participant. If the participant
passed, he or she received a certificate. She said that she had
had to provide details on her courses. Participants were also
able to complete a course evaluation form
(Exhibit I-1, tab 4).
[42] Pascale Choquette said that she
had gone to the premises provided by the appellant to obtain
documentation. On those premises, a locker and a telephone were
put at her disposal.
[43] She admitted that her remuneration was
$125 a day and $65 a half-day. If there was a cancellation once
she was on the work site, she was paid the half-day rate.
[44] The necessary material for the courses,
that is, dummies, videos, triangular bandages, and so on, worth
$500, was provided to her by the appellant.
[45] The classrooms were provided by the
appellant, both at the appellant's office and on the
client's premises.
[46] The appellant was responsible for
finding a replacement when the worker had to be absent.
[47] Pascale Choquette said that she
had received the statement of work, which Fida Khouri
testified had not been applied. But the worker said she had been
obliged to complete the statement of work. However, she added
that nothing in her conditions of employment had changed because
her remuneration did not change and the appellant continued
renting classrooms.
[48] Pascale Choquette said she had
received the organization chart entitled "Instructors,
Montréal Region" (Exhibit I-2) explaining
the standards of St. John Ambulance.
[49] She admitted that, when necessary, she
had consulted master-instructor Marc Malette, whose role is
defined in the document "Roles and Responsibilities of the
Master-Instructor and Instructor"
(Exhibit I-6).
[50] She also admitted that she had not been
supervised in the classrooms.
[51] In her testimony, Julie Dussault,
a nurse, said that she had given courses to the instructors. She
said that she had taken the C.S.S.T. course but that the
appellant had specific requirements with regard to the teaching
of courses.
[52] She stated that the classrooms had been
paid for either by the appellant or its client. Course material
was thus supplied to the instructors by the appellant. It was the
appellant's responsibility to find a replacement when an
instructor had to be absent.
[53] Mélissa Roy the worker did
not testify at the hearing of these cases.
[54] The point for determination therefore
is whether the workers held insurable employment within the
meaning of the Act with the appellant during the periods
in issue.
[55] To draw a clear distinction between a
contract of service and a contract for services or a
self-employment contract, the Court must consider the whole of
the various elements that constitute the relationship between the
parties.
[56] In Wiebe Door Services Ltd. v.
M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal
enumerated four basic tests for distinguishing a contract of
service from a contract for services.
[57] The four case law tests are the degree
or absence of control exercised by the employer; ownership of the
tools; chance of profit or risk of loss; and the degree of
integration of the employee's work into the employer's
business.
[58] Of those four tests, the degree or
absence of control is the most important to consider. The others
are necessary in determining the overall relationship between the
parties. However, control in itself is not determinative.
[59] With respect to control,
Pratte J.A. of the Federal Court of Appeal held as follows
in Gallant v. M.N.R. (F.C.A.), [1986] F.C.A.
No. 330:
. . . In the Court's view, the first ground is
based on the mistaken idea that there cannot be a contract of
service unless the employer actually exercises close control over
the way the employee does his work. The distinguishing
feature of a contract of service is not the control actually
exercised by the employer over his employee but the power the
employer has to control the way the employee performs his duties.
If this rule is applied to the circumstances of the case at bar,
it is quite clear that the applicant was an employee and not a
contractor.
[60] In Groupe Desmarais Pinsonneault
& Avard Inc. v. M.N.R., [2002] F.C.J. No. 572,
Nöel J.A. of the Federal Court of Appeal wrote at
paragraph 5:
The question the trial judge should have asked was whether the
company had the power to control the way the workers did their
work, not whether the company actually exercised such control.
The fact that the company did not exercise the control or that
the workers did not feel subject to it in doing their work did
not have the effect of removing, reducing or limiting the power
the company had to intervene through its board of directors.
[61] The principle to consider here is the
power to control the worker, not whether control was actually
exercised.
[62] In 671122 Ontario Ltd. v. Sagaz
Industries Canada Inc., [2001] 2 S.C.R. 983,
Major J. agreed with MacGuigan J.A., when he asserted
in Wiebe Door Services Ltd., supra:
. . . The most that can profitably be done is to
examine all the possible factors which have been referred to in
these cases as bearing on the nature of the relationship between
the parties concerned. Clearly not all of these factors will be
relevant in all cases, or have the same weight in all cases.
Equally clearly no magic formula can be propounded for
determining which factors should, in any given case, be treated
as the determining ones.
[63] Major J. added:
. . . I agree with MacGuigan J.A. that a
persuasive approach to the issue is that taken by Cooke J.
in Market Investigations, supra. The central
question is whether the person who has been engaged to perform
the services is performing them as a person in business on his
own account. In making this determination, the level of control
the employer has over the worker's activities will always be
a factor. However, other factors to consider include whether the
worker provides his or her own equipment, whether the worker
hires his or her own helpers, the degree of financial risk taken
by the worker, the degree of responsibility for investment and
management held by the worker, and the worker's opportunity
for profit in the performance of his or her tasks.
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.
[64] The worker Pascale Choquette
testified that, at the time the agreement was entered into with
the appellant, she had agreed to be considered as a self-employed
worker because she would have more flexibility to attend to her
family responsibilities.
[65] However, she questioned that
arrangement when she learned that the C.S.S.T. considered workers
with the same employment conditions as employees. The status of
worker is not determined solely by the intentions of the parties.
The employer may have a dominant position and impose working
conditions on workers. Workers would thus be deprived of the
benefits of an act that is social in nature, particularly the
Employment Insurance Act.
[66] In Standing v. M.N.R.
(A-857-90), Stone J.A. of the Federal Court of
Appeal held as follows:
. . . Regardless of what may have been the Tax
Court's appreciation of the Wiebe Door test, what was
crucial to it in the end was the parties own post facto
characterization of the relationship as that of
employer/employee. There is no foundation in the case law for the
proposition that such a relationship may exist merely because the
parties choose to describe it to be so regardless of the
surrounding circumstances when weighed in the light of the
Wiebe Door test.
[67] Let us consider the four tests for
distinguishing the nature of the contract between the
parties.
1. The Tools
[68] The rooms where the courses were given,
either in the appellant's establishment or in a room rented
for that purpose, were paid for by the appellant. The worker
Pascale Choquette admitted that the dummies, triangular
pads, documentation and other items were supplied by the
appellant.
[69] The workers used their cars at their
own expense if the distance to be travelled was less than
30 kilometers but were reimbursed for travelling expenses if
they had to travel distances of more than 35 kilometers from
the appellant's office.
[70] We may conclude from this aspect of the
relations between the parties that there was an employer-employee
relationship.
2. Chance of Profit or Risk of Loss
[71] The workers were paid $125 a day or $65
a half-day. There was no element of chance of profit or risk of
loss since the workers themselves decided when they wanted to
work. The part-time salary was paid for by the appellant. There
was no evidence that the workers lost money.
[72] On the basis of this test, the workers
could be considered as employees.
3. Degree of Integration
[73] One characteristic appears to be
constant under a contract of service: a person is employed as a
part of a business and that person's work forms an integral
part of the business whereas, under a contract for services, his
or her work, even if performed for the business, is not
integrated into it but is only accessory to it.
[74] The workers' services were retained
for the purpose of giving first aid courses to the
appellant's clients. That type of work was part of the
appellant's mission. The way the workers were to give courses
was conceived by the appellant. The workers were thus integrated
into the appellant's operations.
4. Degree or Absence of Control
[75] The analysis is necessarily incomplete
without considering the control test. It must be concluded at the
outset that there was not an absence of control. There was a
prerequisite for the workers to become instructors; instructor
courses were given to the workers.
[76] In her testimony, the worker
Pascale Choquette stated that she had taken a three-day
general course followed by a five-day instructor's course. An
instructor's certificate was awarded to the worker by
Marc Malette, the master-instructor, enabling her to perform
her duties in that capacity. Instructors take St. John
Ambulance courses at their own expense every
three years.
[77] The roles and responsibilities of the
master-instructor and instructor are described in a document,
which was filed as Exhibit I-6. Among other things,
the instructor had to teach first aid and CPR in accordance with
the norms and standards of St. John Ambulance.
[78] Instructors received a guide from the
appellant to assist them in teaching the first aid courses. The
instruction method is set out in that guide. That method
stipulates that every activity must be carried out in the
prescribed order so that students can acquire the theoretical and
practical knowledge necessary to pass the practical evaluation
and the written examination and thus obtain a first aid
certificate. In the guide, instructors are provided with a lesson
plan determining the time allotted to each exercise.
[79] Instructors were not supervised in the
classrooms since the appellant relied on its trust in them.
However, participants gave written evaluations of the performance
of each instructor. If a valid complaint was filed, the appellant
took it upon itself to replace the instructor concerned. If the
instructors had problems, they consulted the master-instructor,
who generally supervised the instructors.
[80] Once individuals had received their
instructor's certificate, they let the appellant know when
they would be available. There was no guarantee that the
instructors would receive assignments.
[81] Once the courses were given,
instructors had to report to the appellant on the time allotted
to each course session.
[82] Instructors had to comply with the
information appearing in the document dated February 10,
1999, on teaching C.S.S.T. courses. According to that document,
instructors were not to confuse St. John Ambulance standards
with those of the C.S.S.T. (Exhibit I-1,
tab 2).
[83] Instructors had to comply with the work
schedule established by the appellant. They personally had to
perform the duties indicated but, if an instructor could not
appear on a specific date, the appellant found a replacement.
[84] On the evidence, there was sufficient
control to establish a relationship of subordination between the
instructors and the appellant. Although there was considerable
flexibility in the conditions of employment, the instructors had
to comply with the standards established by the appellant.
[85] Once the instructors had been
accredited to teach first aid, they could exercise their judgment
in the instruction courses they gave.
[86] Supervision may be performed in various
manners; it may be exercised directly or through given
documentation establishing the employer's standards.
Instructors received courses directly from the appellant and were
accredited by the appellant. The master-instructor had a
responsibility, and the instructors had to report to the
master-instructor if there was a problem. The master-instructor
could replace an instructor if a valid complaint was filed.
[87] In Hennick v. Canada (Minister of
National Revenue - M.N.R.), [1995] F.C.A. No. 294, the
Federal Court of Appeal, per Desjardins J.A., held
that a piano teacher at the Royal Conservatory of Music in
Toronto had held insurable employment in accordance with
paragraph 3(1)(a) of the Unemployment Insurance
Act.
[88] In that judgment, Desjardins J.A.
wrote at paragraph 7:
. . . While her contract with the intervener did not
specify how she was to teach, there were parameters she had to
meet with regard to time which clearly constituted control. The
trial judge erred in failing to consider this piece of evidence.
Besides, what is relevant is not so much the actual exercise of a
control as the right to exercise a control.
[89] The facts stated in that judgment
respecting the degree of control are similar to those stated in
the instant cases. It is true that each case stands on its own
merits, but we may draw on the decisions of other courts in
solving at times difficult problems.
[90] In support of its appeal, the appellant
referred to the decision in Wolf v. The Queen, [2002]
F.C.A. No. 375, in which the Federal Court of Appeal,
per Desjardins J.A., conducted an in-depth
analysis of the facts and precedents in that case: the worker was
a mechanical engineer specializing in aerospace whose services as
a consultant had been retained by Bombardier, a business also
known at the time as Canadair Limited, in Saint-Laurent,
Quebec. Without going into all the details of that judgment,
including the written agreement between the parties, the Federal
Court of Appeal referred to the fact that the worker was highly
skilled, and Desjardins J.A. referred to the decision in
Sagaz, supra, in which Major J. of the Supreme
Court of Canada explained the concept of the control test.
[91] Major J. adopted the comments of
MacGuigan J.A. in Wiebe Door, supra, which
read as follows at pages 558 and 559:
. . . A principal inadequacy is its apparent
dependence on the exact terms in which the task in question is
contracted for: where the contract contains detailed
specifications and conditions, which would be the normal
expectation in a contract with an independent contractor, the
control may even be greater than where it is to be exercised by
direction on the job, as would be the normal expectation in a
contract with a servant, but a literal application of the test
might find the actual control to be less. In addition, the test
has broken down completely in relation to highly skilled and
professional workers, who possess skills far beyond the ability
of their employers to direct.
[92] This is not true of the instant cases.
The evidence did not show that the workers who had rendered
services to the appellant were highly skilled persons. The
appellant had given courses to the workers so as ultimately to
accredit them to become instructors. The officers of
St. John Ambulance had skills greater than those of the
workers. The workers had to take courses every three years
to maintain their accreditation.
[93] Noël J.A. of the Federal
Court of Appeal wrote as follows in Wolf, supra, at
paragraph 122:
. . . I acknowledge that the manner in which parties
choose to describe their relationship is not usually
determinative particularly where the applicable legal tests point
in the other direction. . . .
[94] In the instant cases, the worker
Pascale Choquette agreed at the outset to be considered as a
self-employed worker, but she eventually had doubts about her
work status and that is why she intervened in one of these
appeals.
[95] The characterization the parties gave
to their relationship was thus not determinative. The Court must
consider the whole of the various elements that constitute the
relationship between the parties.
[96] Wolf, supra, cannot be
relied on to support the appellant's claims. That case stands
on its own merits, and the facts are not similar to those in the
instant cases.
[97] On the whole of the evidence and the
four case law tests, the workers held insurable employment during
the periods in issue since they worked under a contract of
service within the meaning of paragraph 5(1)(a) of
the Act.
[98] The appeals are dismissed, and the
decisions rendered by the Minister are confirmed.
Signed at Ottawa, Canada, this 14th day of November 2002.
D.J.T.C.C.
Translation certified true
on this 17th day of February 2004.
Sophie Debbané, Revisor
Cases consulted by the appellant
St. John Ambulance - Ontario Council (Oshawa Branch)
v. Canada (Minister of National Revenue - M.N.R.,
[1988] T.C.J. No. 1035.
Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C.
553.
Charbonneau v. Canada (Minister of National Revenue -
M.N.R.), [1996] F.C.J. No. 1337.
671122 Ontario Ltd. v. Sagaz Industries, [2001]
2 S.C.R. 983.
Wolf v. R., [2002] D.T.C. 6853; [2002] 4 F.C. 396
Cases consulted by the respondent
Elia v. Canada (Minister of National Revenue - M.N.R.),
[1998] F.C.J. No. 316.
671122 Ontario Ltd. v. Sagaz Industries, [2001]
2 S.C.R. 983.
Precision Gutters Ltd. v. M.N.R., [2002] F.C.J.
No. 207.
Standing v. Canada (Minister of National Revenue - M.N.R.)
(F.C.A.), [1992] F.C.J. No. 890, (A-857-90).
Gallant v. Canada (Department of National Revenue)
(F.C.A.), [1986] F.C.J. No. 330.
Hennick v. Canada (Minister of National Revenue -
M.N.R.), [1995] F.C.J. No. 294.
Vulcain Alarm Inc. v. Canada (Minister of National Revenue
- M.N.R.), [1999] F.C.J. No. 749.
Groupe Desmarais Pinsonneault & Avard Inc. v. Canada
(Minister of National Revenue - M.N.R.), [2002] F.C.J.
No. 572.
Dubreuil v. M.N.R. (F.C.A.), [1989] F.C.J.
No. 927.
St. John Ambulance - Ontario Council (Oshawa Branch)
v. Canada (Minister of National Revenue - M.N.R.), [1988]
T.C.J. No. 1035.
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