[OFFICIAL ENGLISH TRANSLATION
|
Citation: 2004TCC566
|
|
Date: 20040830
|
|
Docket: 2004-1895(EI)
|
|
BETWEEN:
|
|
DANY CHOUINARD,
|
|
Appellant,
|
|
And
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] The Appellant is appealing from
the decision of the Minister of National Revenue (the
"Minister"), who contends that the Appellant did not
hold insurable employment under a genuine contract of service,
within the meaning of paragraph 5(1)(a) of the
Employment Insurance Act (the "Act"), when in
the service of Daniel Queenton (the "Payer")
during the period in issue, from October 1 to 15, 2003.
[2] The facts on which the Minister
relied in making his decision are described in paragraph 5
of the Reply to the Notice of Appeal and are as follows:
[TRANSLATION]
(a)
Danny Queenton is a quadriplegic as a result of a car
accident;
(b) the Payer and
his spouse, Lyne Reeves, took care of Danny Queenton
for three years;
(c)
Danny Queenton is the Payer's twin brother;
(d)
Danny Queenton was housed in an addition to the Payer's
residence;
(e) the Payer
received a weekly amount from the S.A.A.Q. to house and support
his brother;
(f) during the
period in issue, the Payer and his spouse had no employment apart
from taking care of Danny Queenton;
(g) the Appellant
was a friend of Danny Queenton;
(h) the Appellant
claims that he was employed full time by the Payer as a personal
assistant, whereas the Payer and his spouse in fact continued to
take care of Danny Queenton;
(i) during the
period in issue, the Appellant did not render services to the
Payer or rendered services for a very short period of time;
(j) the Payer
had never hired a personal assistant during the three years when
he took care of his brother;
(k) during the
respondent's investigation, the Appellant and the Payer gave
the Respondent's representatives contradictory versions of
the Appellant's conditions of employment;
(l) during the
period in issue, the Appellant claimed that the Payer and his
spouse had left on vacation, whereas they were in fact at their
home;
(m) during the period in
issue, the Appellant claims that he worked for the Payer every
week from Monday to Friday, from 8:00 a.m. to
5:00 p.m., whereas the Payer initially claimed that the
Appellant had worked for the Payer on weekends;
(n) during the
period in issue, the Appellant claims that he received gross
remuneration of $600 a week, whereas neither the Appellant nor
the Payer could provide evidence that the Appellant had in fact
been paid, except by presenting two unsigned receipts for $400
each at the end of the respondent's investigation in March
2004;
(o) the Appellant
initially claimed that he had been paid by means of a single
cheque for $800 and subsequently changed his version of the
facts, claiming that he had been paid in cash by the Payer;
(p) on
November 1, 2003, the Payer issued a record of employment to
the Appellant for the period starting on October 1 and
ending on October 15, 2003, showing 80 insurable hours
and total insurable earnings of $800;
(q) the record of
employment does not reflect the actual situation with regard to
the period worked, the hours worked or the remuneration paid;
(r) the Appellant
needed 75 hours to qualify for unemployment insurance
benefits;
(s) the Appellant
and the Payer entered into an arrangement to enable the Payer to
qualify for unemployment benefits.
Analysis
[3] Employment that is not a sham and
that meets all the conditions set out in the Civil Code of Quebec
constitutes a genuine contract of employment for the purposes of
the Act, even if the purpose of the contract of employment was to
render a person eligible for employment insurance benefits.
However, this Court has an obligation to take a careful look at
the agreement that existed between the parties - the Appellant
and the Payer in this instance - to ensure that a genuine
contract of employment existed.
[4] The first question that must be
resolved here is whether the contract binding on the Appellant
constituted a genuine contract of employment. The three essential
elements of a contract of employment are: the provision of a
service, payment of remuneration, and the existence of a
relationship of subordination. The terms and conditions of a
genuine contract of employment must centre on the work to be
performed, a mechanism for controlling the performance of the
work and, finally, on the payment of remuneration that basically
corresponds to the quantity and quality of the work done.
Provision of Services
[5] It is appropriate first to cite
certain relevant passages from the statutory declaration the
Appellant made before Ms. Coulombe, an officer with Human
Resources Development Canada (HRDC), Exhibit I-1, on
November 25, 2003:
[TRANSLATION]
...I've been a fisherman's helper by trade for
17 years ... I had to leave my job on August 2,
2003, because my sciatic nerve let go on me... Then I worked
for Daniel Queenton as a personal assistant. My work
consisted in taking care of Daniel's disabled brother, who is
27 years old and is called Danny Queenton. He's in
a wheelchair. Daniel and his wife took some vacation and I
replaced them. So I went to stay at the home that belongs to
Danny, where Daniel and his wife, Lyne Reeves, also live. My
duties were to take care of him at all times. I helped him eat
and smoke, I lifted him to put him to bed, and so on. Usually
Daniel and Lyne took care of him, and Daniel is paid by the
S.A.A.Q. to perform that task. They were away for 15 days; I
don't know where they went; they came back to the house a few
times, then left again.
[6] Nathalie Bédard, an
appeals officer with the Employment Insurance Section of the
Canada Customs and Revenue Agency, whose credibility is not in
question, testified that paragraphs 21, 24, 30, 31, 32 and
33 of her written report (Exhibit I-3) faithfully
reflected the Appellant's statements made during the
telephone interview that she had conducted with her on
March 11, 2004. Those paragraphs read as follows:
[TRANSLATION]
21. The worker's
duties were to take care of Danny Queenton from
8:00 a.m. to 5:00 p.m., Monday to Friday; his lunch was
provided by the Payer. According to the worker,
Danny Queenton is a paraplegic. When the Payer and his
spouse arrived at the house around 5:00 p.m., the worker
returned to his home. Daniel Queenton and Lynne Reeves took
care of Danny Queenton on weekends.
24. Dany Chouinard
was to administer medication (pills) to Danny Queenton every
day, at 11:00 a.m. and 3:00 p.m. The medication was
administered at 10:00 p.m. by
Danielle [sic] Queenton or his spouse, since the
worker had left at 5:00 p.m.
30. Reading of the
worker's statutory declaration made at
Rivière-au-Renard on November 25, 2003,
before Carole Coulombe, HRDC officer...
31. The worker
corroborated the facts of the statutory declaration and clarified
the following points.
32. "Daniel and his
wife took some vacation and I replaced them. So I went to stay at
the house that belonged to Danny and where Daniel and his wife,
Lyne Reeves, also lived."
- Dany Chouinard declares that Daniel Queenton
and his wife returned to the house in the evenings, around
5:00 p.m., that they came home for lunch on some occasions
and not on others; they left for 15 consecutive days.
33. "They were away
for 15 days; I don't know where they went; they came
back to the house a few times, then left again."
- Dany Chouinard mentions that Daniel Queenton
and Lyne Reeves returned to the house in the evenings.
[7] In addition,
Ms. Bédard testified that paragraph 55 of her
written report (Exhibit I-3) faithfully reflected the
statements made by the Payer during the telephone interview that
she had conducted with her on March 18, 2004. That paragraph
reads as follows:
[TRANSLATION]
"We were here, at the house during the time he worked for
me, but we left for two weekends."
- I pointed out to Daniel Queenton that he and
his spouse were not at the house during the two weekends and that
Dany Chouinard did not work on the weekend; who then took
care of his brother?
- Daniel Queenton said that he and his spouse
left the house to go have some fun. Dany Chouinard took care
of his brother on the weekend; he was paid from Monday to Friday,
but the contract was for 15 days.
- Dany Chouinard was at the house almost
24 hours a day for 15 working days; he was paid on a
40-hour basis, but it is very difficult to estimate, since
his brother requires care 24 hours a day.
Dany Chouinard slept in the addition where his brother
lives.
[8] The testimony of the Appellant and
the Payer on the terms and conditions of the contract of
employment merely added confusion.
[9] The Appellant and the Payer
undeniably gave the respondent's representatives
contradictory versions of the Appellant's conditions of
employment. First, the Appellant declared before
Ms. Coulombe that the Payer and his spouse had been away for
15 days, that he did not know where they had gone and that
they came to the house a few times, then left again. Second, he
told Ms. Bédard that he had taken care of
Danny Queenton from 8:00 a.m. to 5:00 p.m., Monday
to Friday, and that he had returned to his home around
5:00 p.m., when the Payer and his spouse returned to the
house.
[10] As to the Payer, he told
Ms. Bédard that he and his spouse had not been at the
house during the two weekends. Who then took care of
Daniel Queenton on the weekends, since the Appellant
declared that he had worked only from Monday to Friday? He also
told Ms. Bédard that the Appellant had been at the
house 24 hours a day for 15 days, whereas the Appellant
declared to Ms. Coulombe that he had gone home at the end of
his work day, which ended at 5:00 p.m. Lastly, the Payer
testified that the Appellant had only worked one weekend out of
two.
[11] Lastly, I would emphasize that the
Appellant said he lifted Danny Queenton in order to put him
to bed, even though he told Ms. Coulombe that he had had to
leave his job on August 2, 2003, because of sciatic nerve
pain.
[12] The burden was on the Appellant to show
on a balance of probabilities that the Minister had wrongly
claimed that he had rendered no services to the Payer during the
period in issue. The Appellant definitely did not discharge his
obligation to do so by making contradictory statements about his
terms and conditions of work. What is more, the Appellant's
statements were contradicted by the Payer, who contradicted
himself on a number of occasions regarding the same conditions of
employment.
Remuneration
[13] The Appellant testified that he had
received remuneration of $400 a week in cash. The Payer's
testimony was the same.
[14] And yet, in the statutory declaration
of November 25, 2003 (Exhibit I-1), the Appellant
stated:
[TRANSLATION]
... I don't remember the wages I received, and I
believe he paid me with a single cheque for $800. I don't
really remember where I cashed it.
[15] The Appellant claimed in his testimony
that he had simply made an error in making such a written
declaration before Ms. Coulombe and that that error was due
to the fact that he had partied a little too much the evening
before his meeting with Ms. Coulombe.
[16] I find the Appellant's testimony on
this matter not very credible and utterly implausible. How could
he contradict himself on two such simple points as the number of
payments (one or two) that he received from the Payer and the
nature of the payments (in cash or by cheque)? I find it
implausible that a moderately intelligent person could be so
confused.
[17] For these reasons, I conclude that the
Appellant did not show on a balance of probabilities that the
Minister wrongly claimed that the Payer's record of
employment did not reflect the actual situation with regard to
the remuneration paid.
[18] I find that this employment was only a
sham and that the Appellant and the Payer entered into an
arrangement to enable the Appellant to receive employment
insurance benefits. I am of the view that the contract binding
the Appellant and the Payer did not constitute a genuine contract
of employment. The Appellant had to show that the contract of
employment binding him to the Payer met all the conditions set
forth in the Civil Code of Quebec. He therefore had to show that
remuneration was actually paid and that services were in fact
performed, two of the elements essential to the existence of his
contract of employment. The Appellant simply did not discharge
his obligation to prove on a balance of probabilities that the
contract binding him to the Payer was a genuine contract of
employment.
[19] For these reasons, the appeal is
dismissed, and the Minister's decision is confirmed.
Signed at Ottawa, Canada, this 30th day of August 2004.
Bédard J.
Certified true translation
Colette Dupuis-Beaulne
Email this Content