Citation: 2009 TCC 491
Date: 20091002
Docket: 2009-843(EI)
BETWEEN:
Municipalité de Maria,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This appeal pertains to
the insurability of the work done by Jean‑Paul Leblanc as a
volunteer firefighter and as deputy fire chief for the Municipalité de Maria ("the Municipality")
from January 1 to December 31, 2007.
[2]
In making his decision,
the Respondent relied on the following assumptions of fact:
[TRANSLATION]
(a)
The Appellant operated a fire department for
the the Municipality and lent assistance to other municipalities in the
region, from Nouvelle to New Richmond.
(b)
The Appellant provided firefighting
services, highway accident rescue services and forest rescue services.
(c)
The fire department had a fire chief, a deputy fire
chief, a captain and 15 certified or uncertified volunteer firefighters.
(d)
The fire department's equipment included a fire engine
with a crew of four, a tank truck with a crew of two, and an emergency vehicle
and all-terrain vehicle, each operated by one person.
(e)
The Worker provided services to the Appellant
for 31 years.
(f)
During the period in issue, the Worker worked
for the Appellant as deputy fire chief.
(g)
The Worker's tasks were to fill out fire reports,
approve the firefighters' time sheets, instruct the firefighters, fight fires,
go to the scene of automobile accidents with extrication equipment (jaws
of life), participate in forest rescues and take part in weekly drills.
(h)
The fire chief filled out the watch schedule
sheets for the firefighters (including the Worker) for weekends only; no one
was on watch during weekdays.
(i)
The schedule was split into a watch that started
on Friday at 6 p.m. and ended on Saturday at 6 p.m., and another watch that
started on Saturday at 6 p.m. and ended on Sunday at 6 p.m.
(j)
The firefighters had regular watch duty.
(k)
The firefighter on watch was not permitted to
leave the Municipality.
(l)
That firefighter on watch was required to
respond to emergency calls.
(m)
The firefighter on watch was responsible for
assessing the situation and determining whether reinforcements had to be called
in from neighbouring municipalities.
(n)
The Worker kept a pager, supplied by the Appellant,
on his person permanently. The pager was directly connected to the 911 service.
(o)
The Worker had to participate in the weekly
drills, which were held Wednesday evenings from 7 to 9 p.m., and to be on
weekend watches on a rotating basis with the other firefighters.
(p)
The Worker carried out his duties under the
direction of the Fire Chief.
(q)
The Worker had to notify the Director if he was
unable to be on watch or to find anyone to replace him.
(r)
The hours worked by the Appellant [sic] were
consigned on time sheets.
(s)
The Worker was paid at rates determined by the Appellant.
(t)
The Worker received remuneration of $15.72 per
hour when carrying out his duties.
(u)
The Worker was paid $1.00 per hour, or $24.00
per day, while on watch duty.
(v)
In carrying out his duties, the Worker did not
supply any of his own tools or equipment.
(w)
As part of his duties, the Worker used property
and equipment supplied by the Municipality, such as a truck, the jaws of life,
a uniform and a pager.
(x)
The Worker was covered by a CSST [workers'
compensation] policy for which the Appellant paid the premiums.
[3]
In support of its case,
the Appellant called deputy fire chief Jean‑Paul Leblanc and municipal
director general Gilbert Leblanc as witnesses.
[4]
The evidence essentially
confirmed the vast majority of the factual assumptions. However, it was clearly
established that the lump sum of $450 paid for each volunteer firefighter (including
deputy fire chief Leblanc) and the amounts paid for weekend watch duty were
paid to the volunteer firefighters' association, which was free to use the
amounts in question as it saw fit; these amounts were not paid to the volunteer
firefighters directly.
[5]
In this regard, it was
established that each firefighter was required to be on watch every 20 weekends.
There was no watch schedule for statutory holidays.
[6]
Mr. Leblanc explained
that the team was made up of enthusiastic and dynamic volunteer firefighters
who participated in training to increase their fire prevention and suppression
abilities, not only throughout the Municipality but also in neighbouring
municipalities with which there were contractual arrangements.
[7]
The volunteer
firefighters, including Mr. Leblanc, responded to forest and highway accidents
as well. They had all the necessary materials, equipment and tools, such as "jaws
of life" extrication equipment.
[8]
All the equipment was
held jointly by the volunteer firefighters' association and the Appellant Municipality.
Equipment was acquired, maintained, repaired and replaced partly by the Municipality,
partly by the association, and partly by sponsors, including the local Caisse
populaire, which appears to have been very generous and co-operative over the
years.
[9]
The association also
organized fundraising drives and occasionally sought support from the public,
especially from retailers and other businesses.
[10]
Mr. Leblanc stated
that all members were dedicated, committed and active. He also
acknowledged that any volunteer firefighter who did not participate, or refused
to get involved in, the various activities, especially training, did not remain
in the association for long.
[11]
The facts were
established in a spontaneous, voluntary and very complete fashion. In order to
answer the questions in dispute, we must essentially determine whether or not the
work done by deputy fire chief Jean-Paul Leblanc was insurable or not under the
Act, having regard to the clear and precise facts.
[12]
It seems safe to say
from the outset that the context of this situation is very unusual: the work of
a volunteer firefighter is much more of a matter of dedication, a strong
sense of civic duty and a desire to get involved in the community's welfare
than a matter of remuneration, even though the work is sometimes at least
partly remunerated when one is on official business or responding to a fire or
to a highway or forest accident. The pecuniary dimension is more marginal and
symbolic than real.
[13]
It is in fact
theoretically possible for a volunteer firefighter, such as deputy fire chief Jean‑Paul Leblanc,
to receive no pay for very lengthy periods. This can happen if there are no
fires and the activities essentially consist of training, drills and
fundraising. Moreover, the beginning and end of the so-called remunerated
periods do not depend on the parties' will, but essentially on emergencies
such as fires or accidents.
[14]
This special situation
was clearly one basis for section 7 of the Employment Insurance
Regulations, which reads as follows:
7. The following employments are excluded
from insurable employment.
(a) [Repealed, SOR/97-310, s.1]
(b) employment
of a person who is a member of a religious order, if the person has taken a vow
of poverty and the person's remuneration is paid directly, or by that person,
to the order;
(c) employment in respect of which premiums are
payable under
(i)
the unemployment
insurance law of any state of the United States, the District of Columbia,
Puerto Rico or the Virgin Islands, by reason of the Agreement between Canada
and the United States Respecting Unemployment Insurance, signed on March 6 and
12, 1942,
(ii)
the Railroad Unemployment
Insurance Act of the United States;
(d) employment
in Canada of a person who resides in a country other than Canada, if premiums
are payable in respect of services performed by the person in Canada under the
unemployment insurance laws of that other country;
(e) employment
of a person for the purpose of a rescue operation, if the person is not
regularly employed by the employer who employs them for that purpose; and
(f) employment
under the Self-employment employment benefit or the Job Creation Partnerships
employment benefit established by the Commission under section 59 of the Act or
under a similar benefit that is provided by a provincial government or other
organization and is the subject of an agreement under section 63 of the Act.
[Emphasis added.]
[15]
In the Respondent's submission,
the fact that Mr. Leblanc, like the other volunteer firefighters, is
called upon to be on watch every two months is sufficient for it to be
concluded that the employment is insurable, because it shows that he is
regularly employed.
[16]
The Respondent also
submits that the fact that the Municipality paid the association $450 per
firefighter is another factor that supports such a finding.
[17]
With respect to the
$450, it has been established that, contrary to what the Respondent appears to
have thought, it was not paid directly to each firefighter; rather, it was paid
to the association, which could dispose of it as it saw fit. The amount
received was deposited into the association's account, and the association
could spend it any way it wished.
[18]
The deputy chief stated
that the firefighters received $5 for each training session, but the evidence
does not permit a finding that this amount came out of the $450 that the
association received.
[19]
The evidence also
discloses that the Appellant paid workers' compensation premiums to the CSST.
The Municipality also paid the costs of life insurance for all volunteer
firefighters, including, of course, the deputy chief.
[20]
In Municipalité d'Eastman
v. Minister of National Revenue, [2000] T.C.J. No. 521, I wrote as follows:
21. The evidence showed that Mr. Laramée had complete
discretion as to whether or not to go to the scene of an emergency, even though
the emergency was located on the territory for which he was responsible. . . .
[21]
In Whitchurch-Stouffville
(City) v. Minister of National Revenue, [1993] T.C.J. No. 152,
the Honourable Judge Teskey wrote as follows:
21. In the case at bar, the Volunteers work as part-time
employees, and are remunerated for time spent on call and in training. In the "business"
of volunteer fire fighting, the hours of work, apart from training, would be
unpredictable as they would only be working when responding to a call.
Consequently, their hours of work can be described as "intermittent and
sporadic", as in the case of Malo. On the other hand, if the
Volunteers were required to be "on call" in the sense that they must
be available to respond to calls during certain set periods, then their hours
of work could be described as "regular".
22. The decisions in Abrahams and Malo set out
certain guidelines for determining whether an employment is to be considered "regular"
within the context of the Act. Where there is ambiguity in the wording of the
statute, the Court must adopt the interpretation which favours the taxpayer.
23. In the present appeal, taking into account the words
of Lacombe J. in Malo, it appears that the Volunteers' employment as
part-time volunteer firefighters would not constitute insurable employment for
the purposes of the Act as it is impossible to identify some consistency in the
frequency and the sequence of units of work which the Volunteers are called on
to provide. Although this may be inherent in the nature of the work,
Lacombe J. specifically stated that "the claimant must show that he did
actually perform the work as part of a regular work schedule, regardless of the
actual nature of the work being done".
[22]
The Respondent submits
that the obligation to be on watch roughly every 20 weeks, depending
on the number of volunteers, made the work "regular."
[23]
I do not believe that
it is possible, in light of the evidence, to conclude that it was regular
employment.
[24]
Remuneration is one of
the essential conditions that must be met in order for employment to be
insurable. In this case, however, the only time the person is remunerated for
work is if there is an accident, a fire or another tragedy. Such events are not
predictable and happen randomly. For this reason, I believe it is not
appropriate to conclude that the work is regular.
[25]
The meaning of a
situation or word may depend on the way the analysis is done. An analysis that
does not take the context into account could come to a conclusion that is very
different from the one that would be reached following an analysis that does
take the context into account.
[26]
In the instant case,
Parliament clearly intended to create an exception for persons who perform an
essential service in very small municipalities.
[27]
This context and this
intent cannot be disregarded based on the pretext that the manner in which the
activity is done or structured might supply an argument based on which it could
be concluded that the exception does not apply.
[28]
For these reasons, the
appeal is allowed.
Signed at Ottawa, Canada, this 2nd day of October 2009.
"Alain Tardif"
Translation
certified true
on this 20th day
of November 2009.
Brian McCordick,
Translator
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