[2]
Mr. Espiedra intervened in Maison
Belfield's appeal on the basis only that the weekly salary paid to him was
"$700.00 NET (after taxes) NOT GROSS" but otherwise agrees with the
decision of the Minister. Mr. Espiedra worked as a psychotherapist at Maison
Belfield at all relevant times. He also appealed from the decision affecting
him, also dated May 12, 2008, on the basis that his net salary was $700
per week. The appeal was filed on August 11, 2008, 91 days after the date of
the decision appealed from.
[3]
The issues before me are:
a) whether Mr. Espiedra was an employee of
Maison Belfield during the relevant time or an independent contractor, and
b) if Mr. Espiedra's appeal was filed within
time, whether the salary he received was gross salary, or net, after source
deductions, if any.
[4]
Maison Belfield is maintained in Montreal by the Chabad Lubavitch, a Jewish charitable and religious organization, for the
housing in a Jewish atmosphere of recently released prison inmates, alcoholics
and drug addicts, among others. Maison Belfield has seven beds available. Patients
entered Maison Belfield by choice and could leave whenever they wished. Rabbi Joël
Zushe Silberstein, the head of Maison Belfield, was and is responsible for the
funding of Maison Belfield and for its operation.
[5]
Rabbi Silberstein had 30 years of
experience working with prisoners and persons recently released from
incarceration. He still visits prisons on a regular basis.
[6]
Mr. Espiedra had worked at Maison
Belfield in 2003 and 2004. After meeting Rabbi Silberstein and having an interview
with Rabbi Silberstein's son, Mr. Espiedra returned to work at Maison Belfield
in late 2005. According to Rabbi Silberstein, Mr. Espiedra was engaged as
a professional psychotherapist to assist in the work of the home.
[7]
The policy of Maison Belfield was
to admit persons who were not dangerous to others and Rabbi Silberstein said he
relied on a professional such as Mr. Espiedra to evaluate persons for
admission. However, the evidence is that any admission was a joint decision of
both Rabbi Silberstein and Mr. Espiedra.
[8]
The role of Mr. Espiedra,
according to Rabbi Silberstein, was to consider personal problems and to change
a person's life through therapy or other means. Mr. Espiedra had an
undergraduate degree and took additional diploma courses at the University of Sherbrooke in Longueil. Rabbi Silberstein said he had total confidence in
Mr. Espiedra.
[9]
Mr. Espiedra submitted a document purporting
to describe his responsibilities and the goals of Maison Belfield. This
document was given to him when he started work in 2005. The document is rather
cryptic:
Bs''d
Six Months trial;
To accomplish
Complete structure
and order in all matters:
In house
In Files
In follow up
Establish Job
placing contacts
Establish Training
opportunities
Available courses
List of volunteering
possibilities
Clinics
Doctors
Labs
PR
All related
institutions should know about us
Prisons
Federal and
provincial
Half way Houses
Social centers
Rehab places
Detox places
Invite individual
parole probation officers
Develop proper
website
Work to be
recognized by governments
Establish complete
list of former residents and program special programs for/with them
[10]
Mr. Espiedra usually worked
weekdays from 2:30 p.m. to 10:30 p.m., "the time most useful for
treatment" according to Rabbi Silberstein. These were the hours, in
particular after dinner, when Mr. Espiedra's services were required. On
weekends, including Friday nights and Saturday, patients were most susceptible
and time was less structured, said Rabbi Silberstein. During the Sabbath, as I
understand it, Mr. Espiedra would have discussions with the patients with
a view to transmit their feelings of Jewishness.
[11]
Usually there were three or four
patients at a time at Maison Belfield, although there could be as many as
seven. Mr. Espiedra would have to call police or Urgence Santé if any
patient had a violent reaction from drugs, for example. Often he was called in
the early morning to attend at Maison Belfield. He estimated he worked 65 hours
a week.
[12]
Mr. Espiedra treated patients
individually and in group sessions. He had a journal reporting on the progress
of each individual. Patients were treated weekly, semi-weekly or more or less
frequently depending on circumstances. He was the only staff person at meals
with the residents and it was he who, at these times, would give the pre-meal
blessings.
[13]
Mr. Espiedra was more than a
psychotherapist at Maison Belfield. He shopped for food for Maison Belfield and
on Thursday nights he cooked and prepared meals for patients for the Friday evening
dinner and Saturday. In his view, he was responsible for all patient activity
at Maison Belfield. He did not get extra pay for these extra services.
[14]
Mr. Espiedra acknowledged that he
had clients other than those at Maison Belfield. These clients were
referred to him by Rabbi Silberstein and he did not receive any payment for the
services provided to them. He considered that he treated these people as part
of his work for which he was getting paid by Maison Belfield.
[15]
Mr. Espiedra stated that he could
not make decisions on his own and made daily reports on each patient which he
submitted to Rabbi Silberstein. In fact, he said, he would be in contact with
Rabbi Silberstein three or four times a day.
[16]
Also produced by Mr. Espiedra was
a document entitled "Maison Belfield Budget 2006". The first entry is
"Salaries" for "2 Full Time – 3 Part Time 125,000". Rabbi
Silberstein declared the entry is not correct as it includes Mr. Espiedra
as well. When I asked him whether Mr. Espiedra was included as "Full
Time" or "Part Time" Rabbi Silberstein refused to state whether
Mr. Espiedra had been included in these descriptions. He insisted
Mr. Espiedra was an independent contractor. His testimony in this regard
was confusing and not credible.
[17]
I note that Rabbi Silberstein's
son, the person who interviewed Mr. Espiedra for the position at Maison
Belfield, did not appear as a witness. I would have appreciated learning his
recollection of the conditions he and Mr. Espiedra may have agreed to during
the interview. Mr. Espiedra's predecessor was an employee.
[18]
Article 2085 of the Civil Code
of Québec defines a contract of employment:
|
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.
|
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.
|
[19]
There is no doubt that Mr.
Espiedra's labour was carried out according to the instructions of Rabbi
Silberstein and under his direction and control. Mr. Espiedra was not free
to choose the means of performing his work and was clearly subordinate to Rabbi
Silberstein and subject to the policies and requirements of Maison Belfield.
[20]
Mr. Espiedra did perform
professional services. Based on my observations of Mr. Espiedra as he
testified, I concluded that he is an upright individual who may be naïve. I
believe Rabbi Silberstein may have taken advantage of Mr. Espiedra's naïveté
and had him performing services such as shopping for food, eating with
patients, among other things, chores that an independent contractor, in such
circumstances would not perform with regularity. Clearly Mr. Espiedra was under
the influence and direction of a superior.
[21]
Counsel cited several cases in
support of the respective positions. Maison Belfield's counsel submitted
that the following cases support his client: Smith Estate v. M.N.R.,
[1986] T.C.J. No. 902 (QL), Martel et Société pour la prevention de la
cruauté envers les animaux, 2008 QCCRT 0045, Breton et Géo Tours
inc., 2005 QCCRT 0080, 671122 Ontario Ltd. v. Sagaz Industries,
[2001] 2 S.C.R. 983, Royal Winnipeg Ballet v. M.N.R., 2006 FCA 87.
Crown's counsel relied on 9041‑6868 Québec Inc. v. Canada, [2005] F.C.J.
No. 1720 (QL), Rhéaume v. Canada, [2007] T.C.J. No. 453 (QL), and Lévesque
v. Canada, [2005] T.C.J. No. 183 (QL). I have reviewed these authorities.
In Quebec Law there are three essential characteristics of a contract of
employment: provision of labour, remuneration for the labour paid by the
employer and a relationship of subordination. This is explained by Robert P.
Gagnon,
cited in 9041-6868 Québec inc., supra, at paragraph 11, and Rhéaume,
supra, at paragraph 25.
[22]
Mr. Espiedra's appeal was filed
late by one day and on that basis, his appeal will be quashed. However, even if
his appeal were a valid appeal, I would have to dismiss it. The only evidence
before me was that Maison Belfield was to pay Mr. Espiedra $700 per week.
If this amount is not "gross", there is no amount before me to
indicate what is the "gross" amount. As stated earlier in these
reasons, Mr. Espiedra had his initial interview for employment at Maison
Belfield with Rabbi Silberstein's son. There is no evidence before me as to the
exact salary discussed or agreed to. Negotiations and discussions between Mr.
Espiedra and Rabbi Silberstein for salary were in hundred dollar amounts,
namely $600 per week and an additional $100 for weekend days. Mr. Espiedra
reported his income as "net" in his request for record of employment
("ROE") and in interviews with CRA officials. The request for the ROE
was made after he ceased employment with Maison Belfield. His income tax
returns, which may have reflected a more reliable gross amount of income, were
not filed as evidence. There is reasonable doubt as to whether the agreement
was for a "gross" or "net" amount and, in the circumstances
I would have had to dismiss Mr. Espiedra's appeal.
[23]
I am satisfied that, among other
things mentioned earlier in these reasons, Mr. Espiedra was subordinate to
Rabbi Silberstein in performing his services and was therefore engaged by
Maison Belfield in insurable employment.
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