[OFFICIAL ENGLISH TRANSLATION]
Date: 20020702
Docket: 2002-542(EI)
BETWEEN:
CROP INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Watson, D.J.T.C.C.
[1] This appeal was heard at
Montréal, Quebec, on June 12, 2002. The issue is whether
the appellant was correct in maintaining that during the period
at issue from July 23, 2001, to September 6, 2001, Christine
Fortin (the worker) did not hold insurable employment with CROP
Inc. (the payer) within the meaning of the Employment
Insurance Act (the "Act").
[2] It must be decided whether the
work of the worker, Christine Fortin, met the test set out in a
well-established line of cases that takes into account "the whole
of the various elements which constitute the relationship between
the parties": the degree of control exercised by the payer,
ownership of the tools, chance of profit and risk of loss. These
elements are not exhaustive and the weight they will be accorded
varies in each case.
[3] The burden of proof is on the
Appellant. It must show on the balance of evidence that the
Minister of National Revenue (the "Minister") erred in
fact and in law in his decision dated January 22, 2002. Each case
stands on its own merits.
[4] In rendering his decision, the
Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) For some thirty
years, the appellant company has carried on an opinion survey
business.
(b) The appellant's
chief clients are government agencies, banks and
telecommunications companies.
(c) The appellant
employs about 50 persons in its Montréal offices and
approximately one hundred persons on the road.
(d) The appellant
asks its surveyors to conduct surveys between 1:00 p.m. and 9:00
p.m. from Monday to Friday, between 9:00 a.m. and 5:00 p.m. on
Saturday and between 12:30 p.m. and 5:00 p.m. on Sunday.
(e) The worker was
hired by the appellant to conduct surveys in the
Ste-Dorothée and St-Léonard sectors.
(f) The
appellant assigned the worker a territory; she was supposed to
follow the streets and door numbers predetermined by the
appellant and meet the quotas established according to the ages
of the respondents.
(g) The worker's job
could be summarized as follows: she would leave a questionnaire
at the doors determined by the appellant together with her
telephone number and that of the appellant; she would call back
after a week and, when the questionnaire had been completed, she
would retrieve it and mail it to the appellant by express mail or
deliver it if the deadline so required.
(h) The worker did
not have to abide by a fixed work schedule; she worked between 40
and 45 hours a week during the hours determined by the
appellant.
(i) The
appellant monitored the worker's work by the number of
questionnaires completed.
(j) The worker
had to return all of the completed questionnaires to the
appellant; one sheet indicated the hours she had worked and
another sheet showed how many kilometres she had driven in the
course of her work.
(k) The appellant
checked whether the questionnaires returned by the worker had
been completed according to its requirements and provided the
worker with new questionnaires and set the deadlines she had to
meet.
(l) The worker
had to perform the work given to her by the appellant by herself;
she had an identification card identifying her with the
appellant.
(m) The worker provided
her own automobile and was reimbursed for vehicle operating
expenses at $0.31/km.
(n) The worker was
compensated at $10.50/hour; she was paid by cheque on an
irregular basis. She was entitled to a bonus if the dates for the
return of the questionnaires were met.
[5] At the hearing, the agent for the
appellant admitted subparagraphs (a), (b), (e) and (i) to (n) and
denied subparagraphs (c), (d) and (f) to (h).
[6] CROP (Centre de recherches sur
l'opinion publique) Inc. is a firm specializing in opinion
surveys for government agencies, banks and telecommunications
firms; it employs approximately 150 people in its Montréal
offices and approximately 180 interviewers on the road across
Canada.
[7] The worker, Ms. Fortin, began to
work for the payer on July 23, 2001, under an oral contract after
an initial training period; the territory assigned to her covered
specific sectors of Ste-Dorothée and St-Léonard,
Quebec, and the worker was not authorized to go anywhere else
without the payer's authorization. She recorded the number of
hours worked for which she received $10.50/hour and was
reimbursed $0.31/km for the distance she drove.
[8] The worker went to homes in the
sector assigned to her, spoke to a responsible adult and asked
the person to complete a lengthy questionnaire as soon as
possible. Once the questionnaire was completed, she went back to
the person, checked if all the responses had been given and gave
the person $10 on the payer's behalf. When she had collected a
number of completed questionnaires, she sent them by messenger or
brought them herself to the office and presented an invoice
indicating the number of hours worked and the distance driven. If
a questionnaire contained errors or omissions, it was returned to
the worker so that she contact the person who had completed it in
order that it be corrected; she received the usual hourly rate
and was reimbursed for the additional travel expenses incurred
for the second visit.
[9] The depositions of the witnesses
highlighted the following facts:
- The
worker wore an identification badge with her name and the name of
CROP prominently displayed.
- The
worker had to make a quota that was set by the payer; if she did
not make it, she received the usual compensation, but if she made
the quota within the deadline, she could receive a bonus.
- The
payer provided the worker with all of the materials needed for
the work, including the questionnaires, maps indicating the
assigned sectors, blank invoices for presenting claims, the hours
worked and the distance driven, plus the identification
badge.
[10] I reviewed all of the evidence in light
of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.
(2001), 274 N.R. 366, and of the Federal Court of Appeal decision
dated May 21, 2002, in Precision Gutters Ltd. v. Canada
(Minister of National Revenue), 2002 F.C.A. 207.
[11] Having regard to all of the
circumstances of the case at bar, including the testimony,
admissions and documentary evidence, in light of the case law
referred to, I am satisfied that the appellant was not successful
in establishing, on the balance of evidence, that a genuine
contract of service resulting in an employer-employee
relationship between it and the worker did not exist during the
periods at issue.
[12] Therefore, the appeal is dismissed and
the decision of the Minister dated January 22, 2002, is
confirmed.
Signed at Ottawa, Canada, this 2nd day of July 2002.
D.J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
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