Citation: 2010 TCC 41
Date: 20100122
Docket: 2007-3842(EI)
BETWEEN:
MOUNTAHA BOU SABA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
CLAUDETTE BERGERON,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
INTRODUCTION
[1]
The
appellant, Mountaha Bou Saba, is appealing from a decision of the Minister of
National Revenue (the Minister) according to which she did not hold insurable
employment from September 29, 2003, to April 9, 2004.
[2]
Article
2085 of the Civil Code of Québec reads as follows:
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.
[3]
The main
issue is whether the appellant worked for the intervener during the period in
question. Therefore, this is a question of fact.
[4]
The
appellant and the intervener, Dr. Claudette Bergeron, testified, as
did the appellant's daughter‑in‑law, Taline Bou Karam;
the intervener’s former employee Gina Di Cesare; the intervener's
spouse, Raffi Kirdi; and the investigator with Service Canada, Human
Resources and Skills Development Canada, Daniel Doucet.
[5]
Ms. Bou Karam
worked for the intervener, who is a dental surgeon, as a dental assistant
before the period at issue. She took maternity leave in February 2003 and later
returned to work.
THE APPELLANT’S POSITION
[6]
According
to the appellant, she was the intervener's employee from
September 29, 2003, to April 9, 2004.
[7]
During the
first month, she cleaned at the dental clinic in the evenings, after hours and
prepared meals. She worked about 40 hours per week.
[8]
According
to the appellant, after the first month, she only prepared meals, namely, lunch
and supper, making enough food to feed five or six people, seven days a week. She performed
this work at home, and it took about 40 hours per week.
[9]
The
appellant's position is that, during the period at issue,
Ms. Bou Karam worked part time for a maximum of five hours per week.
THE RESPONDENT AND INTERVENER’S POSITION
[10]
The
intervener made a voluntary disclosure in 2005, and as a result, the government
conducted an investigation.
[11]
The
respondent and intervener's position is that the appellant did not work for the
intervener from September 29, 2003, to April 9, 2004, that
during that period, Ms. Bou Karam worked full time and that the
intervener kept double accounts and paid the appellant for most of
Ms. Bou Karam's hours of work.
[12]
The
intervener acknowledges that she purchased meals from the appellant for her
personal consumption during a period that began after April 2004 and ended
in September 2004.
THE EVIDENCE
The appellant's testimony
[13]
The
appellant testified with the help of an interpreter. She said that she spoke
very little French, and that, because of this, it was her son Jacques Nicolas
and her daughter‑in‑law
Ms. Bou Karam who had organized her first meeting with the
intervener. In addition, her evidence as well
as that of Ms. Bou Karam demonstrated that the appellant always
communicated with the intervener through Mr. Nicolas or
Ms. Bou Karam.
[14]
That first
meeting took place in the intervener's clinic.
The first month
[15]
According
to the appellant, she cleaned at the clinic in the evenings, after hours. She started her
work at 7 p.m. and finished at 9 or 9:30 p.m. The only person present during her cleaning was the
intervener. She worked
five to seven days per week, which works out to 14 or 15 hours
of work per week.
[16]
She
testified that she had prepared meals for two people
during her first month of work and that it took her 25 hours per month. She prepared the
meals after cleaning, and it could take her five to six hours.
After the first month
[17]
According
to the appellant, after the first month, she was no longer asked to clean, but
rather to prepare lunch and supper every day for six people.
[18]
The
appellant's answers varied with regard to the number of people she prepared
meals for. Preparing the meals took about 40 hours per week.
[19]
The
appellant testified that she prepared the meals between 7 p.m. and
midnight or 1 a.m. Later, in
cross-examination, she said that she had prepared the meals between 7 a.m. and
12:30 p.m.
She brought the lunch and supper meals to the clinic
around 12:30 p.m. every day.
[20]
In a
statutory declaration
dated July 6, 2005, the appellant stated that she had prepared lunch
and supper every day for the intervener, the intervener's spouse and the
intervener's sister, who worked at the clinic, and that on weekends she
prepared larger meals because they were for the intervener's family.
[21]
The
appellant stated that she spent $50 to $100 per week on the food that she
prepared. The intervener reimbursed her for the food.
[22]
The
intervener phoned four or five times per day to tell the appellant what she
wanted. Mr. Nicolas
or Ms. Bou Karam acted as interpreters and transmitted the
information.
Taline Bou Karam’s testimony
[23]
Ms. Bou Karam
was already working for the intervener as a dental assistant before the period
at issue.
[24]
She took
maternity leave in February 2003. She testified that she knew that the
intervener was looking for someone to do cleaning and that she had asked her
mother-in-law whether she was interested. The
intervener met the appellant at her house and hired her.
[25]
Ms. Bou Karam
testified that the intervener phoned her or Mr. Nicolas in the evening to
tell them what she wanted for her meals. There were always
three dishes.
[26]
Ms. Bou Karam
denied that there had been special arrangements, that is, that she worked full
time for the intervener, but that it was not reported.
[27]
During the
period at issue, she came to work when she was asked to do so, for a half-hour
or an hour at a time. This work consisted inputting files in order.
[28]
In her
testimony, Ms. Bou Karam said that she had returned to work full time
in February 2004. In
cross-examination, she agreed that she had been paid part time until April 9,
2004.
[29]
On
January 24, 2005, Ms. Bou Karam filed a complaint against
the intervener with the Commission de la santé et de la sécurité du travail, in
which she stated the following, among other things:
[Translation]
I have been working at Clinique Dr Bergeron for
two years, and I've always been regular full time at 40 or more hours a week .
. .
Daniel Doucet’s testimony
[30]
Mr. Doucet
verified the appellant's employment insurance claim following the intervener's
voluntary disclosure.
[31]
He met with
the appellant and Mr. Nicolas. On several occasions, Mr. Nicolas
replied to the questions instead of his mother. Several
times, Mr. Doucet asked Mr. Nicolas to ask his mother the questions,
but Mr. Nicolas insisted on replying himself. Although Mr. Doucet wanted to draft the declaration
right away, he was unable to do so because Mr. Nicolas had to leave for
work. Therefore, he drafted the declaration
using his notes and then sent it to the appellant. The declaration was signed by the appellant and faxed back.
[32]
During his
investigation, Mr. Doucet spoke, among others, to two former employees of
the intervener, Karla Osegueda and Emmanuelle Bertrand.
Ms. Osegueda stated that Ms. Bou Karam had returned to work part
time in July 2003. She was uncertain whether Ms. Bou Karam had
started to work full time in September 2003, but she was certain that
Ms. Bou Karam was working full time in December 2003. Ms. Bertrand told Mr. Doucet that
Ms. Bou Karam had returned to work part time in July 2003, but
she did not remember whether Ms. Bou Karam had started working full
time in September or October 2003.
[33]
The
benefits claim stated that the appellant did office work.
[34]
Before the
intervener's voluntary disclosure, there was no ongoing investigation
concerning the appellant.
Gina Di Cesare’s testimony
[35]
Ms. Di Cesare
worked at the intervener's clinic as a secretary and receptionist from
November 1996 to June 2007. She worked Monday to Wednesday from
9 or 9:30 a.m. to 7 or 8 p.m. From October 2003 to
April 2004, she also worked from 9 or 9:30 a.m. to
2 p.m. on Fridays.
[36]
During
Ms. Di Cesare's years of work at the intervener's clinic, the
intervener never provided any meals.
[37]
From
September 2003 to April 2004, she never saw the appellant or
Ms. Bou Karam bring meals. In cross-examination,
Ms. Di Cesare acknowledged that Ms. Bou Karam had brought meals,
but that had taken place after April 2004 and lasted several months.
[38]
Ms. Di
Cesare said that she had never seen the appellant clean in the evening at the
clinic. During the
period between October 2003 and April 2004, Ms. Di Cesare
worked 32 hours per week, and she saw Ms. Bou Karam working
during the hours she herself was at work.
[39]
In 2003 and
2004, the accountant for the clinic was Éric Lamarre, and his office was
located on the Rive-Sud. The intervener had no sister who worked at the clinic.
The intervener's testimony
[40]
The
intervener testified that at first Mr. Nicolas was a patient. At one point,
she suffered serious health problems,
which weakened her physically and psychologically, thus making her vulnerable.
[41]
According
to the intervener, Mr. Nicolas then exerted pressure on her, among other
things, so that she would hire Ms. Bou Karam, which she eventually
did.
[42]
Everything
involving the working relationship between her and Ms. Bou Karam
always went through Mr. Nicolas.
[43]
She
testified that, during the period at issue, she never hired the appellant to
clean or to prepare meals and that Ms. Bou Karam worked over 40 hours
per week. She kept double
accounts to make it appear that the appellant worked for her, even though this
did not reflect reality.
[44]
According
to the intervener, she did that because of the pressure exerted by
Mr. Nicolas, who wanted Ms. Bou Karam to continue receiving
employment insurance payments while also working.
[45]
Towards the
end of 2004, there were more disagreements between the intervener,
Ms. Bou Karam and Mr. Nicolas relating to Ms. Bou Karam's
job. Mr. Nicolas
exerted pressure again.
[46]
The
intervener had a surveillance camera with a microphone installed in her clinic. Exhibits V‑10, V‑11 and V‑12
are video recordings made on
December 9, 16 and 17, 2004. According to the intervener, the recordings show
Mr. Nicolas's habitual behaviour when he came to the clinic to obtain something.
[47]
The videos
confirm that Mr. Nicolas exerted pressure on the intervener.
[48]
No one else
lived with the intervener and her spouse.
[49]
The
intervener testified that she spent around $150 per week on food for her and
her spouse and that they ate out regularly. The intervener filed credit
card statements in evidence.
[50]
It is clear
from the statements that the intervener or her spouse made over
75 payments to restaurants in the Montréal area during the period at
issue. The amounts could represent a meal for one or two people as the case may
be. In addition, ten payments at restaurants
outside Canada and a number of payments for
airplane tickets were made.
Thus, the intervener, her spouse or both of them went
out to eat many times.
[51]
The
intervener bought meals from the appellant starting in April 2004. She paid $10 a
day for lunch and supper only for herself usually during the week and
occasionally on weekends. When she started
purchasing meals, her spouse was abroad on business. The intervener received three dishes from
Ms. Bou Karam. When she no longer
wanted meals, she had difficulty putting an end to their delivery.
Raffi Kirdi's testimony
[52]
Mr. Kirdi
is the intervener's spouse. They have no children.
[53]
Mr. Kirdi
testified that he had not eaten any food prepared by the appellant. He said that he
was Lebanese of Armenian origin and that he did not like Arab Lebanese cuisine.
[54]
He is a
photographer and often travels on business. When he is in Montréal, he
helps out at the clinic, among other things, by doing the cleaning, but not in
the operating rooms, which are cleaned by the dental assistants.
ANALYSIS
[55]
I do not accept the
appellant's evidence. Her claims are not probable.
However, I accept the intervener's testimony.
Several reasons have led me to this finding,
including the following:
(a) In her
testimony, the appellant said that she provided two meals per day for four to
six people every day after her first month of work. She mostly spoke of five to
six people, which would add up to 70 to 84 meals per week.
Considering that there were only the intervener and
her spouse to eat those meals, that quantity of food makes no sense, even
without taking into account that the intervener, her spouse or both of them ate
out from time to time and that the spouse travelled occasionally.
(b) In
addition, that number of meals cannot be reconciled with the appellant's
statutory declaration, in which she stated that she had prepared meals for
three people, namely, the intervener, her spouse, and the intervener's
sister who worked at the clinic as an accountant.
(c) The
intervener had no sister who worked at the clinic. One of her sisters worked
in technical accounting and lived in St-Sauveur, another lived in St-Jérôme,
and a third lived in the Montréal area, but did not really keep in touch with
the intervener.
(d) It is not
credible that $50 to $100 per week would be enough to buy food to prepare 70 to
84 meals per week.
(e) The
appellant did not seem certain of the time when she prepared the meals. She said that
she spent five to six hours per day every day of the week over several months
preparing the meals in question. Despite this
fact, at one point, her testimony indicated that she started working at
7 p.m. and at another time, that she started at 7 a.m.
(f) I accept
Ms. Di Cesare's testimony, according to which she has never seen the appellant
cleaning and has never seen meals delivered during the period at issue.
(g) The credit
card statements confirm that the intervener, her spouse or both of them ate out
over 75 times during the six-month period in question.
(h) The
appellant's testimony, according to which her first meeting with the intervener
took place at the clinic contradicts Ms. Bou Karam's testimony,
according to which the first meeting took place at the intervener's home.
[56]
Therefore,
I find that the appellant did not work for the intervener during the period at
issue.
CONCLUSION
[57]
Consequently, the
appeal will be dismissed.
Signed at Ottawa, Canada, this 22nd day of January
2010.
"Gaston Jorré"
Margarita
Gorbounova, Translator
Email this Content