Citation: 2009 TCC 83
Date: 20090209
Docket: 2008-1168(EI)
BETWEEN:
MARIE-THÉRÈSE ROUSSEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
GAÉTAN ROUSSEL,
Intervenor.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
The Appellant is
appealing from the decision rendered by the Minister of National Revenue (the
Minister) pursuant to the Employment Insurance Act (the Act). The
Minister determined that Marie-Thérèse Roussel (the Worker) was not engaged in
insurable employment under a contract for services, and was therefore not
employed in insurable employment within the meaning of paragraph 5(1)(a)
of the Act when she was working for Gaëtan Roussel (the Payor) during the
period of August 12, 2007, to September 15, 2007 (the relevant period).
Moreover, the Minister decided that the Worker did not hold insurable
employment when she was working for the Payor during the relevant period since
he found it was excluded employment because the Worker and the Payor would not
have entered into a similar contract for employment if they had had an arm's
length relationship.
[2]
When rendering his
decision, the Minister relied on the following presumptions of fact, stated at
paragraph 7 of the Reply to the Notice of Appeal:
[translation]
(a)
the Payor was a day labourer and assistant
depending on the season, either for herring or lobster fishing; (admitted)
(b)
the Payor is a parent with custody of his
daughter Gabrielle (Gabrielle), born July 29, 2003; (admitted)
(c)
the Appellant is the Payor's mother and
Gabrielle's grandmother; (admitted)
(d)
since 2000 and during the period in question,
the Payor and Gabrielle have been living at the same residence as the Appellant
(the residence);
(e)
the Appellant ant the Payor's father (Mr.
Roussel) were owners of the residence; (admitted)
(f)
during all relevant times, Mr. Roussel and the
Payor's sister resided in the residence; (admitted)
(g)
during the relevant period, the herring fishing
season in the Northeast region of New Brunswick was from August 12 to September
15; (admitted)
(h)
herring fishing is done by drift net, in the
evenings and at nights; (admitted)
(i)
during the period in question, the Payor
assisted in herring fishing; (admitted)
(j)
during the period in question, the Payor's hours
of work were from 5:30 p.m. to the next morning, Sunday night to Saturday
morning, every week; (admitted)
(k)
the Payor had essentially hired the Appellant as
a babysitter for Gabrielle while he was herring fishing; (admitted)
(l)
the Appellant's duties as babysitter included:
giving Gabrielle a bath, getting her ready for bed and playing with her; (denied
as written)
(m)
the Appellant also had to prepare dinner and feed
Gabrielle; (admitted)
(n)
the Payor did not know Gabrielle's bedtime; (denied)
(o)
the Payor did not repay the Appellant's expenses
for Gabrielle's food; (denied)
(p)
the Payor did not pay his parents any rent nor
did he reimburse food or other housing expenses for himself and Gabrielle; (denied)
(q)
the Appellant babysat Gabrielle for the Payor
and carried out the same duties outside the period in question and she did so
without being paid; (denied)
(r)
the Payor assisted in lobster fishing from April
20, 2007, to June 29, 2007 (the lobster fishing season); (admitted)
(s)
during the lobster fishing season, Mr. Roussel
took care of Gabrielle when the Payor was lobster fishing; (denied)
(t)
the Payor did not pay Mr. Roussel to babysit
Gabrielle; (admitted)
(u)
sometimes during the lobster fishing season when
Mr. Roussel was unavailable, the Payor paid a third party to babysit Gabrielle;
(denied as written)
(v)
during 2006 and during the herring fishing
season that year, the Appellant babysat Gabrielle without being paid; (denied)
(w)
during the period in question, neither the
Appellant or the Payor kept track of the hours the Appellant worked; (denied)
(x)
during the period in question, the Payor did not
pay the Appellant weekly; (denied)
(y)
the Appellant was not paid an hourly rate of $5;
(denied)
(z)
during the period in question, the Appellant did
not receive a cheque or cash representing a weekly pay; (denied)
(aa)
the Appellant needed 420 hours of work to be
eligible for employment insurance benefits; (admitted)
(bb)
the Appellant obtained 385 hours of work over
seven weeks with another company; (admitted)
(cc)
the Appellant received a record of employment
from the Payor, with serial number A83639198, indicating 240 hours and a total
compensation of $1,200; (admitted) and
(dd)
the record of employment, serial number
A83639198, dated September 20, 2007, does not correspond to the actual
commitment between the Appellant and the Payor during the period in question. (denied)
[3]
The Worker testified.
The Payor and the Worker's spouse also testified in support of the Worker's
position.
[4]
Essentially, the
Payor's testimony revealed that:
(i)
during the relevant
period (representing 35 days), he did not work a complete week because of
violent winds that made high seas fishing impossible;
(ii)
during the four other
weeks of the relevant period, he worked from Sunday night to Saturday morning,
or six days a week; this suggests that the Payor worked 24 days during the
relevant period;
(iii)
generally, he left the
family home around 3:30 p.m. to go to work and came back home around 4:30 a.m.;
this suggests that during the relevant period, the Payor was absent from the
family home for 13 hours a day, 6 days a week for 4 weeks, meaning the Payor
was absent from the family home for at least a period of 312 hours during the
relevant period;
(iv)
generally, upon his
return from work, he slept from 6:00 a.m. to 9:00 a.m., or three hours.
Considering the Payor had worked 24 hours during the relevant period, this
suggests that he slept at least 72 hours during this 24-day period;
(v)
he bought the food
required to feed his daughter himself. I must immediately point out that this
claim contradicts a written declaration
he had previously made. In fact, according to the written declaration, it was
the Worker who had bought the food for the Appellant's daughter;
(vi)
the Worker was paid
weekly by cheque. The Worker would therefore have received four cheques from
the Payor for $300 during the relevant period.
Worker's testimony
[5]
The Worker essentially
testified as the Payor did.
Analysis and conclusion
[6]
The Worker had to
demonstrate that she was engaged in insurable employment under a contract of
services. To do so, the Worker had to show that she was paid by the Payor for
the work she carried out. In fact, compensation given in consideration for work
carried out is an essential element of a contract of services.
[7]
In this case, the
Worker had the burden of showing, on a balance of probabilities, that the
Minister's allegation that she did not receive any compensation for the work
carried out was false. The Worker's evidence in this regard was based
essentially on her testimony and that of the Payor. The Worker was to submit
the four cheques to evidence. She did not do so when she was able to. From
this, I deduce that the cheques did not exist. The non-submission of this
documentary evidence is even more inexcusable in this case because the Worker
and the Payor were represented by counsel and the Minister had asked for this
evidence to be produced, before and after rendering his decisions.
[8]
I must note that even if
the Worker had convinced me that she was paid for the work carried out during
the relevant period, I would still have dismissed her appeal. In fact, the
evidence showed that during the relevant period, the Worker was responsible for
the Payor's daughter and was to babysit her for a minimum of 384 hours. She would
therefore have been paid at an hourly rate of $3.12, which is clearly
unreasonable. The Payor himself felt that $5 an hour was reasonable in the
circumstances. The Minister therefore correctly found, even if based solely on
the compensation factor, that the Appellant and the Payor would not have
entered into a similar contract for employment if they had had an arm's length
relationship.
[9]
For these grounds, the
appeal is dismissed.
Signed at Ottawa, Canada, this 9th day of
February 2009.
"Paul Bédard"
on this 20th day
of February 2009.
Elizabeth Tan,
Translator
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