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Citation: 2004TCC508
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Date: 200407xx
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Docket: 2003‑3575(EI)
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BETWEEN:
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FRANCE GARNEAU,
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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 BETWEEN:
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Docket: 2003‑3577(EI)
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PEINTURE ET DÉCORATION
LÉOPOLD LAPOINTE INC.,
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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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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] These are two appeals brought under the Employment Insurance Act
(the “Act”) concerning the work performed by the Appellant
“France Garneau” for “Peinture et Décoration Léopold Lapointe Inc.” The
work performed by Ms. Garneau was excluded from insurable employment
because she did not deal at arm’s length with the Appellant company: her spouse
controlled the shares of the Appellant company.
[2] These
are the periods at issue in these appeals:
(a) from
June 9 to October 3, 1997,
(b) from
June 15 to October 9, 1998,
(c) from
June 14 to October 8, 1999,
(d) from
June 12 to October 6, 2000,
(e) from
June 11 to September 28, 2001, and
(f) from June 16 to September 21, 2002.
[3] The
parties agreed to proceed on common evidence. Firstly, a number of assumptions
of fact were admitted:
France Garneau – 2003‑3575(EI):
[TRANSLATION]
(a) The Payor,
incorporated on June 28, 1978, runs a business providing painting
services to residential, commercial, industrial and institutional buildings;
(b) the Payor
operates the business year-round, with one peak period between the months of
June and September;
(c) the directors
of the Payor are Léopold, Sonia and Pascal Lapointe;
(d) during the
periods at issue, the Payor usually had three plasterer‑painters
working;
(e) in 1997, the
Payor had sales of $88,666 and in 2002, it had sales of $143,955. Between 1997
and 2002, the Payor realized total profits in the amount of $28,687.
(f) the
Appellant provided services to the Payor. Her main tasks were: mixing the paint
to be used by the painters; doing errands (delivering submissions, buying
material, picking up plans); answering the telephone; preparing cheques,
deposit slips and client invoices;
(g) the Payor
retains the services of an external accountant who is in charge of preparing
payroll cheques (the Appellant signs them), bookkeeping, accounting and
preparing financial statements for the Payor;
(h) the Appellant
generally works from home; the house belongs to her and she receives no
compensation from the Payor for using her residence as a place of work;
(i) the
Appellant claims to work 40 hours per week, but the Payor does not keep a
record of her working hours;
(j) during the
performance of her duties, the Appellant used to drive the Payor’s truck to do
errands and all the expenses resulting from the truck were covered by the
Payor;
(k) since 2002,
the Appellant has owned her own car that she now drives for work; the expenses
resulting from the use of her car are not repaid by the Payor;
(l) the
Appellant claims that she has never invested in the Payor’s business, but it
seems that she issued cheques (in the amount of $5,000 in July 1997 and
September 2001) to the Payor and that she lent money to the Payor at other
points in time during the periods at issue;
(m) during the
periods at issue, the Appellant received a fixed salary varying between $624
and $742 per week, depending on the year, regardless of the number of hours she
actually worked;
(n) during the
periods at issue, the Appellant would sometimes wait for two or three months
before cashing her pay cheques, at the Payor’s request;
(o) in a
statutory declaration dated November 18, 2002, the Appellant stated:
“I admit that I do errands outside
the working hours entered in my Records of Employment. I am also in the habit
of filling in the deposit slips for the two companies outside the working hours
entered in my Records of Employment. This is also the case for cheques that I
prepare on my own. I admit that I prepare cheques all year long, regardless of
the weeks of work appearing on my Records of Employment.”;
“Even if I work, I am not
compensated for the work performed outside the period from June to October of
each year.”;
(p) the periods
of time when the Appellant did actually work differ from the working periods
claimed in the Appellant’s Records of Employment.
Peinture et Décoration Léopold Lapointe Inc., - 2003-3577(EI):
[TRANSLATION]
(a) The
Appellant, incorporated on June 28, 1978, runs a business providing
painting services to residential, commercial, industrial and institutional
buildings;
(b) the Appellant
operates the business year-round, with a peak period between the months of June
and September;
(c) the directors
of the Payor are Léopold, Sonia and Pascal Lapointe;
(d) during the
periods at issue, the Appellant usually had three plasterer‑painters
working;
(e) in 1997, the
Appellant had sales of $88,666 and in 2002, it had sales of $143,955. Between
1997 and 2002, the Payor realized total profits in the amount of $28,687.
(f) the Worker
provided services to the Payor. Her main tasks were: to mix the paint to be
used by the painters; to do errands (deliver submissions, buy material, pick up
plans); to answer the telephone; to prepare cheques, deposit slips and client
invoices;
(g) the Appellant
retains the services of an external accountant who is in charge of preparing
payroll cheques (the Worker signs them), bookkeeping, accounting and preparing
the Appellant’s financial statements;
(h) the Worker
generally works from home; the house belongs to her and she receives no
compensation from the Appellant for using her residence as a place of work;
(i) the Worker
claims to work 40 hours per week, but the Appellant does not keep a record of
her working hours;
(j) during the
performance of her duties, the Worker used to drive the Appellant’s truck to do
errands and all the expenses resulting from the truck were paid by the Appellant;
(k) since 2002,
the Worker has owned her own car that she now drives for work; the expenses
resulting from the use of her car are not repaid by the Appellant;
(l) the Worker
claims that she has never invested in the Payor’s business, but it seems that
she issued cheques (in the amount of $5,000 in July 1997 and
September 2001) to the Appellant and that she lent money to the Appellant
at other points in time during the periods at issue;
(m) during the
periods at issue, the Worker received a fixed salary varying between $624 and
$742 per week, depending on the year, regardless of the number of hours she
actually worked;
(n) during the
periods at issue, the Worker would sometimes wait from two to three months
before cashing her pay cheques, at the Appellant’s request;
o) in a
statutory declaration dated November 18, 2002, the Worker stated:
“I admit that I do errands outside
the working hours appearing in my Records of Employment. I am also in the habit
of filling in the deposit slips for the two companies outside the working
schedule appearing in my Records of Employment. This is also the case for
cheques that I prepare on my own. I admit that I prepare cheques all year long,
regardless of the weeks of work appearing on my Records of Employment.”;
“Even if I do work, I am not
compensated for the work performed outside the period from June to October of
each year.”;
p) the periods
of time when the Appellant did actually work differ from the working periods
claimed in the Appellant's Records of Employment.
[4] The
Appellants denied paragraphs (l) and (p).
[5] Ultimately,
the Appellants admitted some of the assumptions of fact, while reserving the
right to supplement and modify the content: these assumptions are found at
paragraphs (f), (i), (k), (m) and (o).
[6] Léopold Lapointe,
controller and director of the company Peinture et Décoration
Léopold Lapointe Inc., was the sole witness on behalf of the
Appellant company; the Appellant, France Garneau, his spouse, did not testify,
although she was present at the hearing.
[7] The
testimony of Léopold Lapointe closely follows the parameters established by the
Respondent in a letter dated December 12, 2002, where the Respondent sets
out his reasons:
[TRANSLATION]
. . .
When we examined the terms of your
employment, we were unable to conclude that:
-
your
employer would have offered the same working conditions to a person with whom
he was dealing at arm’s length.
- your employer would
have paid the same amount of money for the same work to a person with whom he
was dealing at arm’s length, with the same delay.
- your employer would
have hired a person with whom he was dealing at arm’s length for the same
periods of time.
-
your
employer would have hired a person with whom he was dealing at arm’s length to
perform the same type of work.
[8] Mr. Lapointe
has affirmed repeatedly that he would indeed have hired another person to
perform the same work, under the same working conditions, if the Appellant had
not been available. He pointed out that the job description is close to the
following description set out in the Reply to the Notice of Appeal
(the “Reply”):
[TRANSLATION]
(f) the
Appellant provided services to the Payor. Her main tasks were: to mix the paint
to be used by the painters; to do errands (deliver submissions, buy material,
pick up plans); to answer the telephone; to prepare cheques, deposit slips and
client invoices;
(g) the Payor
retains the services of an external accountant who is in charge of preparing
payroll cheques (the Appellant signs them), bookkeeping, accounting and
preparing the Payor’s financial statements;
[9] However,
he added with great intensity that there is one other task that was not
mentioned in the Reply nor in the statutory declarations filed in the case,
that his spouse was in charge of cleaning up the worksites once the painting
was completed; she was also in charge of cleaning the warehouse. In addition,
this task was described as one of the most important tasks.
[10] Léopold Lapointe was very articulate. He
justified his spouse’s work by pointing out that she performed necessary tasks
that would normally be performed by the painters if she had not been available;
she performed these tasks for a significantly lower remuneration than the
salary he would have to pay the painters to do the same work.
[11] The company was open for business year-round;
the summer season was the busiest period because several schools would hire the
Appellant during the summer for painting jobs.
[12] Even though business was slower during other
periods of the year, the company remained open for business; most of the time,
the Appellant’s spouse performed all the work by himself, without hiring
anybody else.
[13] Mr. Lapointe pointed out that he did not
draw a salary from his company, only bonuses when the business was doing well.
[14] For the last period or periods, the Appellant
was paid a salary of over $18 per hour, a salary of $742 a week,
while the painter received a salary of approximately $23 per hour.
[15] France Beaulieu was the investigating officer in
charge of the file; she explained how she proceeded in this investigation. She
first gathered all the pertinent documents: payroll books, invoices, cheques,
Records of Employment, etc. Then she prepared a rather pertinent compilation
to better illustrate her various findings. The statement she prepared shows
that the Appellant was on the payroll during all the periods at issue; however,
it does show above all that she worked on a yearly basis and not in the
capacity of a mere seasonal or secondary employee. Her work at the company was
continuous and important.
[16] Ms. Beaulieu entered a dot for every task
accomplished by the Appellant outside the periods at issue; she totalled all
the dots, and she prepared the following:
1997 (Period at issue: June 9
to October 3, 1997)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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x
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x
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x
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x
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1
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5
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19
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24
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12
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21
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4
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11
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1998 (Period at issue: June 15 to October 9, 1998)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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14
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11
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16
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21
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26
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30
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12
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27
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27
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22
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21
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10
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1999: (Period at issue: June 14 to October 8, 1999)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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43
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35
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24
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15
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43
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34
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25
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38
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28
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35
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30
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18
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2000 (Period at issue: June 12 to October 6, 2000)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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23
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23
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16
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28
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14
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32
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45
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37
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38
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33
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26
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23
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2001 (Period at issue: June 11 to September 28, 2001)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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20
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13
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14
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22
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32
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35
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38
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42
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63
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29
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37
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25
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2002 (Period at issue: June 16 to September 21, 2002)
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Jan.
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Feb.
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March
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April
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May
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June
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July
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Aug.
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Sept.
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Oct.
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Nov.
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Dec.
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28
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13
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14
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19
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13
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29
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26
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22
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21
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x
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x
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x
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[17] Ms. Beaulieu also reported the following:
·
the cheques received
did not correspond to or did not balance with either the Records of Employment
or the payroll books;
·
cheques were
deposited with time delays;
·
the Appellant
advanced loans without interest to the company controlled by her spouse;
·
the expenses she
incurred while using her own vehicle during the performance of her work for the
company were not reimbursed;
·
she did not receive
any compensation for using a room (converted into an office) located in her own
residence.
[18] When the Respondent decided to investigate the
Appellants’ file, her purpose was to determine whether the work performed
during the periods at issue, although expressly excluded by the Act,
could still qualify as insurable employment. She had to proceed objectively and
draw appropriate conclusions on the basis of all the facts and documents
gathered.
[19] In the case at bar, it is apparent from the
record that the Appellant and her spouse voluntarily provided all the pertinent
documents used in the investigation. Moreover, both of them agreed to provide
statutory declarations, which the Appellants filed as
Exhibits A-1, A-3, A-4 and A‑5.
[20] The evidence reveals that, outside the periods
at issue, the Appellant probably performed many more tasks than those found in
the course of the investigation. Effectively, Appellant France Garneau
doubtless performed several tasks of which there is no record, such as greeting
clients, answering the telephone, doing errands. The investigator could only
show and inventory those chores that were traceable, i.e. by means of a
signature.
[21] Following the testimony of Ms. Beaulieu,
Léopold Lapointe testified again to justify a number of invoices and
documents that appear in the charts and reflect significant tasks accomplished
by the Appellant outside the periods at issue.
[22] It was clearly apparent that some of the
invoices related to personal interests and were not connected with the company
at all. On the other hand, he testified that many of them did relate to the
business “Peinture et Décoration Léopold Lapointe Inc.” It would have been
interesting to hear the Appellant’s point of view.
[23] Some excerpts of the statutory declaration sworn
by Mr. Lapointe on November 20, 2002 (Exhibit A‑5)
are also rather significant with respect to the special relationship between
the Appellant and her employer.
[TRANSLATION]
. . .
Q. Why did France
issue a $5,000 cheque dated July 31, 1997, to
Peinture & Décoration?
A. The Caisse
Pop. granted a loan to France and she lent me the money. She was reimbursed in
cash.
Q. Did France
extend other loans to the company?
A. Fairly often,
there were other loans in 2001 after her mother passed away. In
September 2002, I gave her $6,000 back.
Q. Why did France
perform some work outside the periods of employment entered in the Records of
Employment?
A. She volunteers
to help me Saturday or Sunday evenings. She is not remunerated for these
services; she does it as a hobby.
. . .
[24] Appellant France Garneau, in her statutory
declaration dated October 21, 2002 (Exhibit A‑3), declared:
[TRANSLATION]
. . . I use my own car.
My car expenses are not reimbursed; they are included in my salary.
. . . I work
from 8 a.m. to 5 p.m., 40 hours per week, five
days, from Monday to Friday. My hours differ from one day to the other.
Sometimes I work evenings, if the men need material. In fact, I am paid 40
hours, but I keep no record of my time.
[25] Later, in a second statutory declaration dated
November 18, 2002 (Exhibit A‑4), she declared:
[TRANSLATION]
. . . I
prepare client invoices, I type them. I also sign the acknowledgments of
receipt on behalf of the company when shipments come in. I do errands.
I agree that the other employees also do errands and go to pick up
material when needed. When the investigator showed me all the invoices issued
to clients at points in time where I was not employed, I did not prepare them.
Léopold did. He prepares the invoices the same way I do. I acknowledge that I
did some errands outside the dates of employment entered in my Records of
Employment. I also prepared the deposit slips for both companies outside the
dates of employment entered in my Records of Employment. And I did so
throughout the year, regardless of the weeks of employment entered in my
Records of Employment. My spouse and I have a MasterCard . . .
. . . I
extended a $6,000 loan to Peinture & Décorations Léopold Lapointe in 2001
and was reimbursed in September 2002. In July 2002, I received a
$2,000 cheque from Peinture & Décorations Léopold Lapointe but I cannot
remember the reason . . .
. . . It is
true that I cashed my paycheques with . . . to three-month delays.
This is due to the fact that there were no funds in the account and Léopold
would ask me to wait a bit.
[26] The circumstances surrounding the statutory
declarations were such that the Court must give adequate weight to the evidence
therein contained: Mr. Lapointe had expressed significant conditions in
that respect, as we can see from the two following excerpts (Exhibit A‑5):
[TRANSLATION]
. . . Mr. Lapointe
prefers that the questions be asked first and he will answer them later
. . .
Mr. Lapointe asked for a coffee
break at 10 a.m. and came back at 10:45 a.m. to read and sign the
declaration. I read the said declaration, it has been signed freely and
voluntarily, without any threat and it represents the truth.
[27] In spite of all the opportunities he had to
mention the famous clean‑up jobs performed by his spouse, it is rather
strange that he did not mention this task for which she was responsible, a task
he described as very important during his testimony.
[28] Moreover, Mr. Lapointe acknowledged that a
stranger or a third party would not agree to extend interest‑free loans
or display such good will as to wait several weeks before cashing pay cheques.
[29] Ms. Beaulieu completed an adequate
investigation and she gathered all the pertinent, available documentary
evidence. She examined all the data with discernment and, to substantiate her
conclusions, she drew up a chart that removes any doubt one may have as to the
accuracy and reasonableness of her conclusions.
[30] On the other hand, the evidence presented by
Mr. Lapointe, the Appellant's spouse, who was present at the hearing but
chose to refrain from testifying, validates the reasonableness of the
conclusions drawn by the Respondent.
[31] Counsel for the Appellants argued that the
employment of Appellant France Garneau had been assessed on
May 7, 1985, and was deemed to be insurable.
[32] The Respondent immediately responded that at the
time of such determination, legislative provisions other than those applicable
to the present determination concerning the six periods of time at issue were
in effect.
[33] In the initial determinations, the Respondent
had examined the facts in light of the legislative provisions corresponding to
the current paragraph 5(1)(a) of the Act.
[34] Since 1990, Parliament has specifically
decided to exclude from insurable employment any work performed in situations
in which the worker and the employer are in a non‑arm’s length
relationship. The Respondent had valid grounds for examining the work performed
by the Appellant under paragraph 5(2)(i) of the Act, which
reads as follows:
5.
(2) Insurable employment does not include
. . .
(i) employment
if the employer and employee are not dealing with each other at arm's length.
(3) For the
purposes of paragraph (2)(i),
(a) the
question of whether persons are not dealing with each other at arm's length
shall be determined in accordance with the Income Tax Act; and
(b) if the
employer is, within the meaning of that Act, related to the employee,
they are deemed to deal with each other at arm's length if the Minister of
National Revenue is satisfied that, having regard to all the circumstances of
the employment, including the remuneration paid, the terms and conditions, the
duration and the nature and importance of the work performed, it is reasonable
to conclude that they would have entered into a substantially similar contract
of employment if they had been dealing with each other at arm's length.
[35] Although it is very unfortunate that a
determination created expectations, and almost constituted an unconditional
guarantee, any employment is nonetheless subject to examination at all times as
to its insurability, with respect to any period of time.
[36] When the examination relates to several periods
or several years, the result may have serious financial consequences. In the
case at bar, the Respondent examined six periods of time between
June 9, 1997 and October 21, 2002.
[37] The Appellants put together the evidence for
which they had the burden to prove from the assumptions of fact alleged in the
replies to the Notices of Appeal; the Appellants did not object that the
Respondent failed to take certain facts into account.
[38] The interpretation of the facts presented by
Counsel for the Appellants entails a conclusion contrary to that of the
Respondent. Does this mean that the interpretation of the facts proposed by the
Respondent is unreasonable or unacceptable?
[39] There are a number of factors in this case that
may very well have an effect on the nature of a contract of service, such as
performing the same type of work; sometimes performing certain tasks
voluntarily, and sometimes for remuneration; issuing an interest‑free
loan to her own employer and waiting before cashing her paycheques.
[40] It is not possible to make an absolute
comparison between a contract of employment entered into between two persons in
a non‑arm’s length relationship and a contract between third parties. The
fact that two parties are not dealing with each other at arm’s length add and
will always add particular elements to a contract: this is perfectly normal,
legitimate and, perhaps, desirable. However, such particularities should not
tailor or influence the contract of employment to the extent that the employer
would not grant similar conditions to a third‑party employee, whether
these conditions are favourable or unfavourable for the employee. This
particularly relates to the remuneration of employees at the beginning and at
the end of working periods, and the performance of free services for which
third parties would obtain compensation.
[41] Oftentimes, it is neither easy nor possible to
identify the specific and determinative facts upon which a valid conclusion may
be drawn. However, often the only way to obtain a valid result is to consider
the facts as a whole, along with the circumstances of the case and other
details.
[42] Counsel for the Appellants brilliantly pointed
out that it is lawful and normal for spouses to cooperate and to contribute
voluntarily to the performance of certain tasks, to issue interest‑free
loans, to act generously. I agree entirely with this observation. However, when
persons who are not dealing with each other at arm’s length decide to enter
into a contract of employment, it becomes essential to make every effort to
minimize the importance of the family connection. In this vein, Parliament
wisely provided tests of similarity and comparison expressly applicable to such
cases.
[43] In the case at bar, Mr. Lapointe
acknowledged that he would have been unable to find an employee to provide
interest‑free loans and to delay cashing numerous pay cheques. On the
other hand, would he have paid a salary to an employee while the company could
not afford to do so? Would he have surrendered his own salary in order to
finance the salary of a third party? Would he have paid such a salary to a
third party? These are questions the Appellants, who bore the burden of proof,
did not answer.
[44] This is not about a new company in which the
main shareholder is maximizing his capital in order to establish a solid
foundation for his business. This is a company that is several years old; under
similar circumstances, the main shareholder would doubtless have considered
closing if the company he controlled did not generate sufficient profits to
provide him with a decent income. It is equally certain that the compensation
of the Appellant would have been re‑evaluated and reduced. With respect
to the type of work, it is clear that a third party would never have paid such
a salary for this type of work.
[45] Considering the way the company operated, it
seems that Mr. Lapointe benefited from France Garneau’s salary as much as
the Appellant did herself.
[46] Mr. Lapointe claimed that he never felt the
need to record the Appellant’s hours of work and that the results were his only
concern. I do not think one may claim or affirm that this is a rule in this
field, particularly if the business does not produce sufficient funds to
provide a reasonable salary for its owner who himself performed most of the
profit-generating work.
[47] The working periods all commenced and finished
around the same dates and always included a sufficient number of weeks to qualify
for employment insurance benefits. Also, the salary paid during the said weeks
permitted the highest available rate of benefits.
[48] Considered separately, these facts are not
determinative; however, the systematic re‑occurrence of the same scenario
seems to justify the conclusion that the working arrangement was seriously
affected by the fact that the parties were not dealing with each other at arm’s
length. Ms. Garneau’s statutory declaration is rather meaningful in this
respect. This is not a case of an isolated coincidence. The fact is that the
coincidence reoccurred with respect to all the periods at issue.
[49] A genuine contract of employment does not permit
compensation for the same work only during some periods of time, and then to be
performed gratuitously during other periods. Further, in a contract of
employment between two people dealing with each other at arm’s length, parallel
agreements are not legitimate since Parliament has also provided that any
contract entered into with the purpose of rendering a person eligible for
employment benefits does in fact disqualify the contract in this respect.
[50] When there is a legitimately insurable contract
of service, the work performed is justifiable with respect to the needs of the
employer; the work is compensated according to applicable standards; the work
is paid on schedule and is terminated when the business need ceases to exist.
[51] In cases where an agreement provides that the
work will be terminated when the worker is eligible for employment insurance
benefits and that the worker will resume his employment voluntarily or with a
reduction of salary, the difference being fully or partially compensated for by
employment benefits, then the work will be excluded from insurable employment
even where the parties were in an arm's‑length relationship.
[52] Even though the Appellants argued that they had
no reason to doubt the insurability of the work that was performed, since the
Respondent had already expressly determined that this work was insurable, the
proof, on the balance of probabilities, confirms the correctness of the
determination.
[53] It is common for laws to be modified. For this
reason, every person must remain attentive to the laws that govern their
businesses. Ignorance of the Act does not constitute a valid excuse or
defence.
[54] The appeal is dismissed.
Signed at Ottawa, Canada, this
XX day of July 2004.
Tardif J.
Translation certified true
on this
27th day of August 2004.
Ingrid B. Miranda, Translator
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