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Citation: 2006TCC470
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Date: 20060907
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Docket: 2004-2631(EI)
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BETWEEN:
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ANNETTE VIENNEAU,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
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and
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THE ESTATE OF THE LATE ANNIE ALLAIN,
C/O ARCHIE ALLAIN,
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Intervener,
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AND
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Docket: 2004-2633(CPP)
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ANNETTE VIENNEAU,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
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and
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THE ESTATE OF THE LATE ANNIE ALLAIN,
C/O ARCHIE ALLAIN,
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Intervener.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Deputy
Judge Savoie
[1] These
appeals were heard on common evidence in Miramichi, New Brunswick, on June 28,
2006.
[2] The
appeals pertain to the insurability of the Appellant's employment within the
meaning of the Employment Insurance Act ("the Act"), and
their purpose is to establish whether that employment was pensionable, within
the meaning of the Canada Pension Plan ("the CPP"), while the
Appellant was performing services for Annie Allain ("the payor")
from April 25, 2002, to November 12, 2003 ("the period
in issue").
[3] The
Minister of National Revenue ("the Minister') notified the Appellant of
his decision that she was not employed in insurable or pensionable employment
during the period in issue because she was not employed under a contract of
service.
[4] In
making his decision, the Minister relied on the following assumptions of fact:
[TRANSLATION]
4. (a) The payor was
a senior citizen who required home care. (admitted)
(b) After doing
its assessment, the Department authorized 11 hours of home care per day for the
payor. (admitted)
(c) The Appellant
was hired by the payor's family to look after her. (denied)
(d) The
Appellant's tasks were to clean the payor's home, bathe her, administer her
medications and see to her well-being. (admitted)
(e) The payor's
son decided on the Appellant's tasks. (admitted)
(f) The
Appellant worked 11 hours a day, seven days a week. (admitted)
(g) The Appellant
was paid $6.00 an hour and submitted her working hours directly to the
Department at the end of the month. (admitted)
(h) The Appellant
was paid directly by the Department of Family and Community Services, and no
source deductions were made. (admitted)
(i) The payor
was admitted to hospital on November 12, 2003, and died on November 30.
(admitted)
(j) The
Appellant considered herself an independent worker, as did the payor's son. (admitted)
(k) The
Department did not consider the Appellant an employee under a contract of
service. (admitted)
[5] The
Appellant admitted to all these assumptions except the one set out in
subparagraph 4(c), but that assumption was proven at the hearing.
[6] The
evidence discloses that the Appellant's salary was set by the Department of
Family and Community Services of New Brunswick
("the Department"). The Appellant was paid at a rate of
$6.00 per hour for 11 hours of work daily. After the Department assessed
Annie Allain's condition (Ms. Allain was the Appellant's patient) her
contribution was set at $26.00 per month.
[7] In
order to ensure that Ms. Allain received all the care she needed, the
Appellant was at her post 24 hours a day. She lived in her patient's
residence and her tasks required her to perform services for more than
11 hours a day. She was not compensated for her overtime. She often
stayed up all night, and then took advantage of her patient's daytime sleep to
catch up on some of her own sleep.
[8] The
Appellant's work was not supervised. She decided on her schedule based on the
patient's needs, and she decided on the terms and conditions of her employment.
It was established that the Appellant was hired by Archie Allain, the
payor's son, at which time the terms and conditions of the employment were
determined, though the Department, as we have seen, had already decided how she
would be remunerated for her services.
[9] The
Appellant was paid directly by the Department, without source deductions, and she
was not entitled to vacation pay. She considered herself self‑employed,
and the Department and the Allain family shared that view.
[10] The evidence did not establish that there was an employer-employee
relationship between the payor and the Appellant whereby the payor was
exclusively entitled to the Appellant's services.
[11] Given the nature of the services in question, it is difficult to
analyse the terms and conditions of the Appellant's work using the criteria
established by the case law.
[12] In Poulin v. Canada (Minister of National Revenue – M.N.R.), [2003] F.C.J. No. 141,
a matter similar to the instant case, Létourneau J.A. of the Federal Court of
Appeal wrote:
In conclusion, the tests developed
by the courts to differentiate a contract of employment from a contract for
services prove to be of little use in the particular context of this case. The
services rendered to the applicant during 1999 and the conditions in which they
were rendered reveal a supply of services that is as compatible with one
resulting from a contract for services or of enterprise as it is with one
emanating from a contract of employment. That being said, as our colleague Mr.
Justice Décary noted in Wolf, supra, at paragraph 117, these tests are simply
factors to be considered in the determination of what "is the essence of a
contractual relationship, i.e. the intention of the parties". And as he also
says, "one ends up in the final analysis, in civil law as well as in
common law, looking into the terms of the relevant agreements and circumstances
to find the true contractual reality of the parties" . . .
[13] In Poulin, supra, Létourneau J.A. was entertaining an
application for the judicial review of a decision of this Court regarding the
insurability of the employment of several personal care attendants who cared
for a man who was rendered quadriplegic as a result of a car accident and was
unable to look after his own needs, even the most essential ones.
[14] This case is characterized by the fact that the care provider was
remunerated almost completely by a third party (the state), not by the
beneficiary of the services (the sick and disabled patient).
[15] The Minister determined that the Appellant was not employed under a
contract of service within the meaning of paragraph 5(1)(a) of the Act
and that she was therefore not employed in insurable employment during the
period in issue.
[16] In addition, the Minister determined that the Appellant was not
employed in pensionable employment under the CPP because there was no contract
of service between her and the payor.
[17] Here are the statutory provisions on which the Minister relied:
Employment Insurance Act
5. (1) Subject to
subsection (2), insurable employment is
(a) employment in
Canada by one or more employers, under any express or implied contract of
service or apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other person and whether
the earnings are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise.
Canada Pension Plan
6.(1) Pensionable
employment is
(a) employment in Canada that is not excepted
employment;
[18] The concept of insurable employment is explained by the relevant case
law, which has established the applicable tests.
[19] Specifically, in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C.
553, the Federal Court of Appeal applied a four-part test. In 671122 Ontario
Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, the Supreme
Court of Canada approved of the use of this test to determine whether a person
is considered an independent contractor or an employee. These cases remind us
that there is no one conclusive factor and that all the criteria — namely control, integration, chance of
profit and risk of loss, and ownership of tools — must be applied to the relationship
between the parties. Since the four criteria are not necessarily inter‑related,
it is sometimes necessary to consider them separately while continuing to have
regard to the overall relationship between the parties.
[20] In the case at bar, the evidence discloses that Ms. Allain, the
payor and patient, sought the Department's services through her son Archie, and
that the Department's staff performed an assessment of her needs. The purpose
of this assessment was to determine the terms and conditions of the home care
that Ms. Allain would receive. The care varies with the patient's level of
autonomy, but consists mainly of house cleaning, personal hygiene, health care
and assistance with daily activities. It was established that the Minister
would pay the Appellant an hourly rate of $6.00 for a total of 11 hours of work
per day, seven days per week. The Allain family, for its part, would have
to contribute $26.00 per month. The Department decided on the number of
hours that would be remunerated.
[21] After the Department assessed the payor's needs, neither the
Department nor the payor exercised any control over the Appellant's work. The
Appellant knew her patient's needs and chose how to deliver the necessary
care.
[22] The care provided to the patient was personal and basic in nature.
It required no particular set of tools. In Poulin, supra, a
similar case, Létourneau J.A., writing on behalf of the Federal Court of
Appeal, held that ". . . on the facts of this case the
notions of control and relationship of subordination are at best neutral, at
worst misleading. They are not terribly useful in determining the nature of the
agreement between the parties."
[23] Further on, in its analysis of the facts under the criterion concerning
the ownership of work instruments, the Court in Poulin stated:
Once again, I do not think that in this case much
weight can be accorded to this factor, given the nature of the services
rendered, the needs served and the few work instruments used. Furthermore,
ownership and supply of equipment must not be confused with ownership and
supply of work instruments. In short, it is necessary to avoid confusing work
materials and work instruments. What homeowner has not purchased materials in
order, for example, to renovate a bathroom, build or rebuild a patio, and
subsequently hired the services of a contractor, through a contract for
services, to have the latter do the erection and installation of the materials
acquired thereby using his own work tools? The fact that the applicant owns the
drugs he swallows, the urinary condoms he wears, the catheters he uses, the
waterproof covers on his bed to protect against leaks, etc. and that he
supplies these materials to the workers who install them does not make him an
employer. These are not work instruments, but materials necessitated by the work.
The installation of these materials and the administration of the drugs, like
most of the services rendered to the applicant, for all practical purposes do
not require any work instruments.
[24] The facts of the instant case, analysed under the "chance of
profit and risk of loss" criterion, led this Court to the same conclusion
as that reached by Létourneau J.A. in Poulin, supra, who
wrote, at paragraph 26:
This test is of no use in the case at bar. Had the
services been rendered by an agency under a contract for services, the risks of
losses and the chances of profits would have been no different than they were
for the three workers in question.
[25] In Poulin, supra, the Federal Court of Appeal held, as
it did in Wolf v. Canada, [2002] F.C.J. No. 375, that a
great deal of importance must be attached to the parties' intention.
[26] The Federal Court of Appeal stated the following with regard to this
point in Poulin, supra, at paragraphs 29-30:
There is not, in this case, as is
often the case in similar matters, any written agreement; this obviously makes
the search for intention more difficult but not necessarily impossible.
Given the applicant's physical
condition and the consequences that result from employer status, I do not think
it is reasonable to infer that the applicant intended to enter into a contract
of employment with the three workers that would make him their employer. I
suspect that this hypothesis did not even cross his mind, persuaded as he must
have been that he had retained the services of self-employed workers in regard
to whom his only obligation was to pay the agreed price for the services.
Moreover, as the applicant was aware, Ms. Paquette, the visiting homemaker, was
already working full-time for an agency and provided services to the applicant
only on every second weekend: Applicant's Record, pages 107 and 135.
Furthermore, it should not be overlooked that, from the applicant's
perspective, all of the services received were services provided by the SAAQ,
which was the payer.
[27] The evidence establishes that, for her part, the Appellant never
considered the payor to be her employer. On the contrary, she admitted the
Minister's assumption in subparagraph 4(j), which reads as follows:
[TRANSLATION]
The Appellant considered herself an
independent worker, as did the payor's son.
[28] Thus, I must find that there was no contract of service.
[29] The contract in issue here is a contract for services or a contract of
enterprise. That is what the Federal Court of Appeal found in Poulin, supra,
and that is what this Court found in Castonguay v. Canada (Minister
of National Revenue – M.N.R.), [2002] T.C.J. No. 352, application
for leave to appeal refused by the Federal Court of Appeal.
[30] That case law is convincing, binding and mandatory.
[31] The Appellant bore the burden of proof, as well as the onus of proving
that the Minister's assumptions were wrong. She did not succeed in these
regards.
[32] Consequently, this Court must find that the Appellant was not employed
by the payor in insurable employment within the meaning of paragraph 5(1)(a)
of the Act during the period in issue because there was no contract of service
between her and the payor. In addition, the Appellant was not employed by the
payor in pensionable employment within the meaning of paragraph 6(1)(a)
of the CPP during the period in issue because there was no contract of service
between her and the payor.
[33] Therefore, the appeals are dismissed and the decisions of the Minister
are confirmed.
Signed at Grand-Barachois, New Brunswick, this 7th day of September 2006.
Deputy
Judge Savoie
Translation
certified true
on this 28th day
of June, 2007.
Brian McCordick,
Translator
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