Docket: 2010-281(EI)
BETWEEN:
IDAEL LAZARO RAMOS ROMO,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION] ____________________________________________________________________
Appeal
heard on February 8, 2011, at Montréal, Quebec
Before: The Honourable Chief Justice Gerald
J. Rip
Appearances:
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For the appellant:
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The appellant himself
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|
Counsel for the respondent:
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Emmanuel Jilwan
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____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of the Employment
Insurance Act is dismissed and the decision rendered by the Minister of
National Revenue on January 20, 2010, in respect of the period from
May 19, 2008, and May 23, 2009, is confirmed.
Signed at Ottawa, Canada, this 2nd day of May 2011.
"Gerald
J. Rip"
on this 8th day of June 2010
Margarita
Gorbounova, Translator
Citation: 2011 TCC 228
Date: 20110502
Docket: 2010-281(EI)
BETWEEN:
IDAEL LAZARO RAMOS ROMO,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Rip, C.J.
[1]
This is an appeal by
Idael Lazaro Ramos Romo from a decision rendered by the Minister of National
Revenue (the Minister) under subsection 93(3) of the Employment
Insurance Act (the Act), according to which he was not an employee of the
payer Robert Lawson Inc. (the corporation) between May 19, 2008, and
May 23, 2009. The Minister based his decision on paragraph 5(1)(a)
of the Act. This appeal originated in Quebec.
[2]
The corporation
operates a business that provides servers and bartenders to caterers and to other
businesses that provide meal services at various events. The corporation has a
list of about 200 people who can serve at tables and bars. It contacts people
whose names are on the list when its services are retained for an event and
asks them if they would like to work at the event. The person contacted may
accept or reject the work offer. There are no written contracts between the
workers and the corporation; everything is arranged orally. The pay was $16 per
hour.
[3]
Mr. Romo is a server. His
work consisted in preparing tables, serving at tables and cleaning the tables
after the meal. The maître d'hôtel told him which tables he was responsible
for. Usually, he worked with a team; he was not the only person attending to a
particular table.
[4]
Mr. Romo worked as a
server not only for the corporation but also for other persons, including
perhaps five caterers. Usually, a caterer or the corporation would contact Mr.
Romo about a week before the event. He was free to accept or reject the work
offer. If two persons called him with a job, he would accept the first offer.
[5]
All work supplies are
provided by Mr. Romo. He pays for his clothes, shoes, tuxedo, shirt and anything
else he may need to wear for a particular occasion.
[6]
The corporation has a
representative on site at the event to make sure that everything works
satisfactorily according to the agreement between the corporation and its client.
According to Mr. Lawson, its president, the corporation coordinates the
event and does not exercise any supervision of the work performed by Mr. Romo.
The payer's representative notes the hours worked by each worker at the event. According
to Mr. Romo, the corporation's
representative supervises his work. At the end of an event, the corporation
takes note of the hours worked by Mr. Romo, and he is paid by cheque
approximately one week after the event.
[7]
Paragraph 5(1)(a)
of the Act reads as follows:
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5(1) Subject
to subsection (2), insurable employment is
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5(1) Sous réserve du paragraphe (2), est
un emploi assurable :
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(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.
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a) l’emploi
exercé au Canada pour un ou plusieurs employeurs, aux termes d’un contrat de
louage de services ou d’apprentissage exprès ou tacite, écrit ou verbal, que
l’employé reçoive sa rémunération de l’employeur ou d’une autre personne et
que la rémunération soit calculée soit au temps ou aux pièces, soit en partie
au temps et en partie aux pièces, soit de toute autre manière.
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[8]
Article 2085 of the Civil
Code of Québec (the Civil Code) defines a contract of employment as
follows:
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A contract of
employment is a contract by which a person, the employee, undertakes for a
limited period to do work for remuneration, according to the instructions and
under the direction or control of another person, the employer.
|
Le contrat de
travail est celui par lequel une personne, le salarié, s'oblige, pour un
temps limité et moyennant rémunération, à effectuer un travail sous la
direction ou le contrôle d'une autre personne, l'employeur.
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[9]
A contract of
enterprise or for services is defined in article 2098 as follows:
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A contract of
enterprise or for services is a contract by which a person, the contractor or
the provider of services, as the case may be, undertakes to carry out
physical or intellectual work for another person, the client or to provide a
service, for a price which the client binds himself to pay.
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Le contrat
d'entreprise ou de service est celui par lequel une personne, selon le cas
l'entrepreneur ou le prestataire de services, s'engage envers une autre
personne, le client, à réaliser un ouvrage matériel ou intellectuel ou à
fournir un service moyennant un prix que le client s'oblige à lui payer.
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[10]
Based on the facts before the
Court, did Mr. Romo do work according to the instructions and under the
direction or control of the corporation, or was he a provider of services who carried
out physical work for the corporation or provided a service for a price to the
corporation?
[11]
The Crown referred me to a recent
decision in 10tation Event Catering Inc. v. M.N.R. where, on similar facts, the
Court held that the workers were not engaged in insurable employment since they
were not employees of the catering corporation. That appeal originated in Ontario, a
common law province. In 10tation Event, the judge based himself on
several cases, in particular that in Wiebe Door Services Ltd. v. M.N.R.,
a decision of the Federal Court of Appeal,
where various common law concepts of the employer-employee relationship were
considered. As my colleague Archambault J. explained in his article "Contract of Employment: Why Wiebe Door
Services Ltd. Does Not Apply in Quebec and What Should Replace It",
there are differences in the way that common law and civil law distinguish an
employee from an independent contractor. One major difference is that, in a
contract of employment under the Civil Code, the employee works according
to the instructions and under the direction or control of the employer.
[12]
Mr. Romo was under no
obligation to work for the corporation or any other party offering him work; he
was free to accept or reject any offer to work without prejudice to being offered
work in the future.
[13]
The corporation did give
Mr. Romo directions concerning the work he would be doing for each event,
told him which tables he would serve and indicated the team he would work with.
However, once work commenced he was not under the direction or control of the
corporation. He knew what he was doing, and that is why his
services were retained. The relationship between the corporation and
Mr. Romo was more that which exists in a contract for services:
Mr. Romo undertook to carry out physical work for the corporation for pay
of $16.00 per hour, which the corporation agreed to pay him.
[14]
The appeal is
dismissed.
Signed at Ottawa, Canada, this 2nd day of May 2011.
"Gerald J. Rip"
on this 8th day of June 2011
Margarita
Gorbounova, Translator
CITATION: 2011
TCC 228
COURT FILE NO.: 2010-281(EI)
STYLE OF CAUSE: IDAEL
LAZARO RAMOS ROMO v. M.N.R.
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: February
8, 2011
REASONS FOR
JUDGMENT BY: The Honourable Chief Justice Gerald J. Rip
DATE OF JUDGMENT: May
2, 2011
APPEARANCES:
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For the appellant:
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The appellant himself
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Counsel for the respondent:
|
Emmanuel Jilwan
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the respondent: Myles
J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Canada
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