Docket: 2007-2451(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LINA VACCARO,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-3762(EI),
2007-3765(EI),
2007-3766(EI), 2007-3767(EI), 2007-3768(EI),
and 2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener
herself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of
the Employment Insurance Act is dismissed and the decision of the
Minister of National Revenue is confirmed, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September 2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-3762(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
DONALD TAILLEFER,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3765(EI),
2007-3766(EI), 2007-3767(EI),
2007-3768(EI), and
2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener
himself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of the Employment
Insurance Act is dismissed and the decision of the Minister of
National Revenue is confirmed, in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Favreau J.
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-3765(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
SUKHY BASRA,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3762(EI),
2007-3766(EI), 2007-3767(EI),
2007-3768(EI), and
2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener
herself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of the
Employment Insurance Act is dismissed and the decision of the
Minister of National Revenue is confirmed, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-3766(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
MARC G. RANGER,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3762(EI),
2007-3765(EI), 2007-3767(EI),
2007-3768(EI), and
2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener himself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of
the Employment Insurance Act is dismissed and the decision of the
Minister of National Revenue is confirmed, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-3767(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LOUISE DINEEN LABRECQUE,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3762(EI),
2007-3765(EI), 2007-3766(EI),
2007-3768(EI), and
2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener
herself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of
the Employment Insurance Act is dismissed and the decision of the
Minister of National Revenue is confirmed, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-3768(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
WILLIAM BUMBRAY,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3762(EI),
2007-3765(EI), 2007-3766(EI), 2007-3767(EI),
and 2007-3769(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener himself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of
the Employment Insurance Act is dismissed and the decision of the Minister
of National Revenue is confirmed, in accordance with the attached Reasons
for Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Docket: 2007-2769(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
ROBERT BAILLARGEON,
Intervener.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeals of
Les Propriétés Belcourt Inc. (2007-2451(EI),
2007-3762(EI),
2007-3765(EI), 2007-3766(EI), 2007-3767(EI),
and 2007-3768(EI)),
on April 21 and April 22, 2008, at Montréal,
Quebec
Before: The Honourable Justice Réal Favreau
Appearances:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Intervener:
|
The Intervener
himself
|
____________________________________________________________________
JUDGMENT
The appeal under subsection 103(1) of
the Employment Insurance Act is dismissed and the decision of the
Minister of National Revenue is confirmed, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September
2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
Citation: 2008 TCC 534
Date: 20080926
Dockets: 2007-2451(EI), 2007-3762(EI),
2007-3765(EI), 2007-3766(EI),
2007-3767(EI), 2007-3768(EI),
2007-3769(EI)
BETWEEN:
LES PROPRIÉTÉS BELCOURT INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LINA VACCARO, DONALD TAILLEFER,
SUKHY BASRA, MARC G. RANGER,
LOUISE DINEEN LABRECQUE,
WILLIAM BUMBRAY, ROBERT BAILLARGEON,
Interveners.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
These are seven appeals
from decisions in which the Minister of National Revenue
("the Minister") determined that Lina Vaccaro, Donald Taillefer,
Sukhy Basra, Marc G. Ranger, Louise Dineen Labrecque, William Bumbray and Robert
Baillargeon ("the Workers") were employed by the Appellant in
insurable employment during their respective periods, that is to say, in
Ms. Vaccaro's case, from November 1, 2004 to
November 4, 2005, and in the other Interveners' cases, from
January 1 to December 31, 2004, and from January 1, 2005
to May 25, 2006. The appeals were heard on common evidence.
[2]
In determining that the
Workers were employed by the Appellant under a contract of service, the
Minister relied on the assumptions of fact set out in paragraphs 14 or 15
(as the case may be) of the Reply to the Notice of Appeal in each appeal. For
example, paragraph 15 of the Reply to the Notice of Appeal in the appeal
of Sukhy Basra reads as follows:
[TRANSLATION]
(a)
The Appellant is a real estate developer that
specializes in the construction and sale of condominiums.
(b)
Approximately 50 people worked for the
Appellant.
(c)
Those people were either regular employees
(office and construction workers) or sales agents, including the Worker, whom
the Appellant considered self-employed.
(d)
There was no written work contract between the
Appellant and the sales agents.
(e)
The Appellant retained the services of several sales
agents to sell its units.
(f)
Essentially, the agents' main duties were to
greet potential clients of the Appellant's and provide them with brochures
promoting the Appellant's products.
(g)
The agents did promotional work by presenting
the Appellant's products and showing model condos, but they did not look after
condo unit sales, which were the real estate agents' responsibility.
(h)
The Worker rendered services to the Payor as
sales agent for roughly ten years.
(i)
The Worker had no precise work schedule to comply
with.
(j)
The Worker rendered her services at the
Appellant's various sales offices in accordance with the Appellant's
designations or assignments.
(k)
The Appellant set the Worker's schedule based on
the business hours of the various points of sale.
(l)
The Worker had to comply with the schedule set
by the Appellant.
(m)
The Worker made no investment in the Appellant's
business and had no financial responsibility over the business.
(n)
The Worker had to justify her absences to the
Appellant, who was responsible for replacing her.
(o)
The Worker could not personally hire assistants
to assist her in her work for the Appellant.
(p)
The Appellant supervised the Worker's work.
(q)
The Appellant provided the Worker with all the
equipment required to carry out her tasks (telephone, fax, brochures, etc.)
(r)
The Appellant did not supply business cards
bearing the Worker's name.
(s)
The Worker assumed her driving and cell phone
expenses herself.
(t)
The Worker determined her work schedule herself.
(u)
The Worker was paid an hourly rate for each hour
that she worked, and she did not receive any commission.
(v)
The Worker was on the Appellant's payroll and
was paid regularly by bi‑weekly direct deposits.
(w)
The Worker received fixed remuneration based on
the hours that she actually worked, and had no chance of profit or risk of loss
in the performance of her work.
(x)
The Worker had to go to the Appellant's sales
offices to perform her services, and the Appellant had the power to control and
supervise her work.
(y)
The Appellant had the right to dismiss the
Worker at any time if it was not satisfied with her work.
[3]
The witnesses were Penny
Glen, the Appellant's Vice-President, Sales and Marketing; Stéphane Joannette,
the Appellant's Director of Finance; and Donald Taillefer, Robert
Baillargeon, William Bumbray, Marc Glen Ranger, Louise Dineen Labrecque,
Lina Vaccaro and Sukhy Basra.
[4]
The Appellant's
representatives explained that the industry practice was to hire self-employed
workers to look after the sale of condominium units because the amount of time
required to sell the units at a given site could not be predicted. They claim
that the parties' mutual understanding was that the Workers were self‑employed.
The Appellant's conduct clearly shows that the Workers were considered
self‑employed: T4A slips were issued, there were no source deductions, there
were no fringe benefits, there was no vacation pay, etc. However, Ms. Vaccaro and
Ms. Basra both deny having been self-employed.
[5]
Based on the evidence
that was adduced, there were two categories of staff responsible for sales:
the hosts (called "hosts and hostesses"), who greeted the customers; and
the "closers", who signed contracts of sale. The Workers who
were hosts included Mr. Taillefer, Mr. Bumbray and Ms. Labrecque, and
the Workers who were closers included Ms. Basra and Ms. Vaccaro (who was also
a host) as well as Mr. Ranger and Mr. Baillargeon. The work done by
the hosts was relatively easy: greet the customers; show them the premises;
provide them with information about the project as a whole, the features of the
various available units, the choice of materials and the various options
and prices; take the customers' contact information and $1,000 deposits if they
wanted to reserve a unit; and, lastly, put them in touch with a closer. The
closers were generally more experienced in the real estate field and their work
essentially consisted in helping customers fill out pre‑sale contracts
for condominium units, and hypothecary finance applications. Both types of
Workers were paid a negotiable hourly rate, not a commission. The hosts
were not given any special training, but they sometimes had the benefit of
working with other hosts at a given location. The Workers were given
information concerning the real estate projects, and they were also given the
promotional material. In addition, the closers got training from more
experienced people.
[6]
The Appellant prepared
the Workers' schedules after receiving information about their availability.
The work schedules normally covered two-week periods and specified the building
sites where the Workers were to report. According to the Appellant, the
Workers were free to accept or decline what they were proposed. If they
were ill or absent, the Workers had to find a replacement and tell the
Appellant who that person was. The replacements were normally chosen from the
list of the Appellant's workers.
[7]
The Workers met the
customers at the sites and filled out a daily activity book that was available
to the other Workers and the Appellant. The book contained information about
the number of visitors, the potential customers, the visitors' reactions to the
advertising campaigns, the number of calls, the price changes, etc.
The Workers' work was not supervised by the Appellant, and they did not
have to produce written reports. However, every Sunday after 7 p.m., the
Workers had to report orally to the Appellant's president, Mr. Zunenshine,
with respect to the weekend visits and the sales and reservations that had been
made.
[8]
In the performance of
their work, the Workers used the Appellant's promotional material and had
access to the Appellant's sites by means of keys that were provided to them.
Occasionally, the Workers worked at more than one location during a given day
or week. They were not reimbursed for travel or for cellular phone use.
Analysis
[9]
In addition to the
applicable statutory provisions and certain scholarly articles, counsel for the
Appellant referred to the decisions in D & J Driveway Inc. v. Canada,
2003 FCA 453; Ayotte v. M.N.R., 2005 TCC 617; Gendron Communication Inc. v. Vidéotron
Ltée, 2005 CanLII 42217 (QCCS); Tremblay v. 9080-8460 Québec
Inc., 2003 CanLII 10259 (QCCQ); and Les Constructions Marcel Fugère
Inc. v. Beaulieu, C.Q. Frontenac, No. 235‑02‑000389‑872,
November 14, 1990, per Bossé J.
[10]
The rules applicable to
written or oral contracts entered into in Quebec are determined by the Civil
Code of Québec ("the Civil Code"). These rules are set out
in the articles of the Civil Code that pertain to the "contract of
employment" (articles 2085 to 2097) and the "contract of enterprise
or for services" (articles 2098 to 2129). The articles most relevant
to the instant dispute are articles 2085, 2098 and 2099, which read as follows:
2085. 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.
2098. 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.
2099. The contractor or the provider of
services is free to choose the means of performing the contract and no
relationship of subordination exists between the contractor or the provider of
services and the client in respect of such performance.
[11]
In 9041-6868 Québec
Inc. v. Canada, 2005 FCA 334, Décary J.A. remarked, at
paragraph 11:
There are three characteristic constituent elements of
a "contract of employment" in Quebec law: the performance of
work, remuneration and a relationship of subordination. That last element is
the source of the most litigation. . . .
[12]
In the same paragraph,
Décary J.A. adopted the remarks of Robert P. Gagnon in Le droit du travail
du Québec, 5th ed. (Éditions Yvon Blais, 2003) at pages 66-67. Here are
some excerpts from the text that he quoted:
. . . it is a characteristic of an employment
contract, subject to its terms, that the employee personally perform the agreed
upon work under the direction of the employer and within the framework
established by the employer.
. . . Consequently, subordination came to include the ability of the
person who became recognized as the employer to determine the work to be
performed, and to control and monitor the performance. Viewed from the reverse
perspective, an employee is a person who agrees to integrate into the
operational structure of a business so that the business can benefit from
the employee's work. In practice, one looks for a certain number of indicia of
the ability to control (and these indicia can vary depending on the context):
mandatory presence at a workplace; a somewhat regular assignment of work; the imposition
of rules of conduct or behaviour; an obligation to provide activity
reports; control over the quantity or quality of the services, etc. . . .
[13]
Counsel for the
Appellant submitted that the parties' intention upon the formation of the
oral contract with the Workers was clear, and that the indicia of the ability
to control pointing to the absence of a relationship of subordination were as
follows:
- the Appellant did
not have control over the Workers;
-
there was no training;
-
there was no exclusivity;
and
-
a Worker could get
someone to replace him or her.
[14]
Counsel for the
Respondent submitted that the parties' intention was not really clear because
Ms. Vaccaro and Ms. Basra disputed their self-employed status.
Ms. Vaccaro thought that she was an employee, and she reported her income
from the Appellant as employment income. In addition, she alleged that
(a)
the Workers were
required to report to the workplaces designated by the Appellant in accordance
with the schedule set by the Appellant;
(b)
the Workers received
training on the products offered by the Appellant, and used the Appellant's
sales and promotional material;
(c)
the Workers had to make
reports in the activity book that was kept on the premises, and had to report
orally to the Appellant's president every Sunday evening.
[15]
My assessment of the
facts and the evidence is that the Minister's allegations were well founded and
that, based on those allegations, the Minister was justified in determining
that the Appellant's contracts with the workers were contracts of employment.
[16]
It seems to me that, in
practice, the Workers' ability to have others replace them was limited to the
other workers on the Appellant's list. Given the requisite knowledge concerning
the building development sites and the numerous available options, only experienced
people could serve as replacements.
[17]
The absence of
exclusivity is rather theoretical as well, since the Workers essentially worked
for the Appellant full‑time (e.g., Robert Baillargeon) or had been
working for the Appellant for many years (e.g., Ms. Basra).
[18]
It should also be noted
that the Appellant exercised quality control by reviewing and signing the
documents prepared by the closers. Those people did not generally have the
authority to sign the said documents bearing the Appellant's name.
[19]
The application of the
principles from the decision in Wiebe Door Services Ltd. v. M.N.R.,
[1986] 3 F.C. 553 (C.A.), namely, ownership of work tools, chances of profit
and risk of loss, and integration into the Appellant's activities, tends to
confirm that the Workers were governed by contracts of employment.
[20]
For these reasons, the
Appellant's appeals in respect of the Workers are dismissed.
Signed at Ottawa, Canada, this 26th day of September 2008.
"Réal Favreau"
Translation
certified true
on this 11th day
of November 2008.
Brian McCordick,
Translator
CITATION: 2008 TCC 534
COURT FILE NOS.: 2007-2451(EI), 2007-3762(EI),
2007-3765(EI),
2007-3766(EI),
2007-3767(EI),
2007-3768(EI),
2007-3769(EI)),
STYLES OF CAUSE: Les Propriétés Belcourt Inc. and M.N.R. and Lina Vaccaro, Donald
Taillefer, Sukhy Basra, Marc G. Ranger, Louise Dineen Labrecque,
William Bumbray, Robert Baillargeon
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 21 and April 22, 2008
REASONS FOR
JUDGMENT BY: The Honourable Justice Réal Favreau
DATE OF JUDGMENT: September 26, 2008
APPEARANCES:
|
Counsel for the
Appellant:
|
Pierre-Luc Beauchesne
|
|
Counsel for the Respondent:
|
Christina Ham
|
|
For the Interveners:
|
The Interveners
themselves
|
COUNSEL OF RECORD:
For the
Appellant:
Name: Pierre-Luc Beauchesne
For the Respondent: John H.
Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
For the
Interveners:
Name:
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