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Citation: 2004TCC219
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Date: 20040413
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Dockets: 2003‑9(EI), 2003-1838(EI), 2003‑1841(EI)
2003‑1839(CPP), 2003‑1840(CPP)
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BETWEEN:
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LYSON LAVOIE,
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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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Dockets: 2003‑1309(EI), 2003‑1310(EI)
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SYLVAIN LAVOIE,
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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 several appeals which, at the
request of the parties, were subject to common evidence for all the dockets,
which I list: Lyson Lavoie, [2003‑9(EI), 2003‑1838(EI),
2003‑1839(CPP), 2003‑1840(CPP), 2003‑1841(EI)] and Sylvain Lavoie
[2003‑1309(EI), 2003‑1310(EI)].
[2] The
periods at issue for each of the appeals are as follows:
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Docket number
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Period at issue
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Payor's name
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Lyson Lavoie
2003‑9(EI)
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June 25 to
November 17, 2001
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L. C. Rioux & Son Ltd
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2003‑1838(EI)
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August 7, 2000 to
January 12, 2001
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Fletcher's Forestry Enterprises
Ltd
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2003‑1839(CPP)
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August 7, 2000 to
January 12, 2001
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Fletcher's Forestry Enterprises
Ltd
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2003‑1840(CPP)
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June 19 to
July 21, 2000
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Jean-René Boucher Ltée
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2003‑1841(EI)
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June 19 to
November 17, 2000
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Jean-René Boucher Ltée
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Sylvain Lavoie
2003‑1309(EI)
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July 2 to
November 24, 2001
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L. C. Rioux & Son Ltd
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2003‑1310(EI)
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October 33, 2000 to
January 12, 2001
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Fletcher's Forestry Enterprises
Ltd
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[3] Several
facts were admitted; they are with respect to both Appellants. They were
reduced to writing. It is appropriate to reproduce them (see the letter dated
February 24, 2004, addressed to Jérôme Carrier):
[TRANSLATION]
1. The Payors
operated a forest‑cutting business;
2. There was no
written and signed contract between the Appellants and their respective Payors;
3. The
Appellants' duties (with their employee) were to cut and transport wood;
4. The Payors
did not choose the employee, in other words, the lumberjack, for each
Appellant;
5. The Payors
did not impose on the Appellants a quota of wood to be cut;
6. The wood cut
by the Appellants was measured at the sawmill;
7. The Payors
paid the Appellants according to the quantity of wood cut and measured by the
sawmill; in other words, the total remuneration paid to the Appellants and
their employees should correspond to the quantity of wood cut and measured by
the mill;
8. The Payors
were not owners of the skidders used by the Appellants;
9. The Payors
did not rent the Appellants' skidders;
10. The Payors
could not assign another operator to the Appellants' skidders;
11. The costs of
operating the skidders (gas, oil, insurance, maintenance) were the
responsibility of the Appellants and not of the Payors;
12. If the
skidders were to break, the Payors did not give other duties to the Appellants;
13. The Payors did
not keep track of the hours worked by the Appellants;
14. The Appellants
provided the other work tools involved in this matters, such as mechanical
saws, and assumed the maintenance and operating costs;
[4] With
respect to the dockets of Appellant Lyson Lavoie; in addition to the facts
admitted and recorded, Counsel for the Appellant made a certain number of admissions
among the presumptions of fact, to explain and justify the determinations he is
appealing. These facts were recorded in docket 2003‑9(EI) and
read as follows:
[TRANSLATION]
(a) The Payor,
L. C. Rioux & Son Ltd, operates a forestry
business;
(b) The Appellant
owned a skidder, the initial cost of which was approximately $15,000;
(c) During the
period at issue, the Appellant provided services to the Payor as a skidder
operator;
(d) There was no
written contract between the Appellant and the Payor;
(e) The Appellant
worked cutting wood in a team with a lumberjack that he had chosen himself;
(f) The
Appellant worked between 40 and 50 hours per week;
. . .
(i) The
Appellant assumed all the costs related to the operation of his skidder;
(j) If the
skidder broke down, the Appellant was responsible for repairing it and covering
the costs. The Payor did not assign him any other duties;
(k) The Payor
could not assign another operator to the Appellant's skidder;
(l) The
Appellant was paid as a function of the quantity of wood cut;
(m) When the
Appellant was hired, he and the Payor agreed that a weekly amount of
$750 would be paid to each member of the team as an advance;
(n) The Payor
issued separate cheques for the weekly advance;
. . .
(q) On
December 4, 2001, the Payor issued a record of employment to the
Appellant indicating the first day of work as June 25, 2001, and the
last day paid as November 17, 2001, and indicating that the Appellant
had been paid for only 16 of the 21 weeks in this period, for a total
remuneration of $12,280.66;
. . .
[5] The
other presumptions of fact were denied. They are as follows:
[TRANSLATION]
(g) The Payor indicated the work area to the Appellant, as well as
the length of wood to cut, but he did not control how the work was to be
conducted;
(h) The Appellant
was free to be absent without requesting authorization from the Payor;
. . .
(o) Since the
Appellant's team had not cut enough wood to cover the advances already paid
during the period at issue, the Appellant had to provide services to the Payor
without pay for a period of five weeks;
(p) The Appellant
was responsible for the lumberjack's salary. The Payor subtracted all the
advances paid from the amounts due to the Appellant, including the amounts paid
to the lumberjack;
. . .
(r) The record
did not reflect reality with respect to the number of weeks or the amount of
remuneration.
(s) During the
period at issue, the Appellant operated his own business.
[6] Appellant
Sylvain Lavoie stated that he would give the same answers as Appellant Lyson Lavoie, his father, if the same questions were asked of
him. Appellant Lyson Lavoie
explained that the travel costs for his skidder were the Payor's
responsibility. The Payor came to the site several times per week.
He would have certain requirements, such as, specifically, cutting a
particular tree with a diameter greater than that determined by the
instructions given when the site was opened.
[7] With
respect to pay, the evidence demonstrated that it was essentially a function of
the wood cut and the price obtained at delivery to the buyer. The alleged
weekly pay was essentially an advance disguised as remuneration and presented
as if it were a salary for a 40‑hour workweek. In reality, the
remuneration paid was established exclusively as a function of the wood cut,
delivered and sold.
[8] The
way in which the hours were counted and, in particular, the manner of recording
them, was in reality a scheme to give the impression that this was employment
in the usual sense, work carried out following a fixed schedule. Furthermore,
it is interesting to note in the records of employment that, each week, the
Appellant always accumulated the same number of hours although on he did not
work some days because of rain or extreme heat, which made the site dangerous.
[9] Even
though this appeared to be regular employment allowing the Appellant to receive
a weekly salary, it is very easy to imagine situations in which the work might
not have been paid: mechanical breakdown is the most obvious. The size of the
income depended essentially on mechanics, weather, soil quality, the type of
woodland, etc. All these vagaries were the exclusive responsibility of the
Appellant. At the end of the contract, the parties settled their accounts, and
the Appellant might have found himself in a situation in which he had to
reimburse overpayments. Forestry and the economic activity it generates involve
true specialists for whom there are no secrets. It is very easy for them to
predict income in advance and to disguise a contract for services as a contract
of service. The risks are many, the weather is uncertain and forest workers
want to maximize the profit from their work.
[10] In this case, the test most likely to justify the possible existence
of a contract of service is the control or the power of control. All the others
(ownership of work tools, integration, chance of profit and risk of loss) lead
us to conclude that the Appellant operated his own business.
[11] With respect to control, the facts likely to lead to the conclusion
that the work was controlled by the Payor or subject to the Payor's power of
control are not determinative. These are normal, legitimate and common facts
and actions of an individual who gives a contract for services and who wants to
ensure that the result complies with his expectations. The woodlot owner
explained at the outset what he wanted with respect to the type of cutting
(selective or clear) and the skidder owner, in cooperation with the lumberjack
he hired, made provisions for performing the work as quickly as possible before
going to another lot. This is a similar, if not identical docket, to others
that have been decided by the Federal Court of Appeal.
[12] I will not go further with the analysis, since this type of work, the
manner of execution and the way in which the income was established were
addressed in several decisions, specifically Charbonneau v. Canada (Minister
of National Revenue – M.N.R.), [1996] F.C.J. No. 1337
(Q.L.), in which Décary, J.A. of the Federal Court of Appeal
stated:
4. Moreover,
while the determination of the legal nature of the contractual relationship
will turn on the facts of each case, nonetheless in cases that are
substantially the same on the facts the corresponding judgments should be
substantially the same in law. As well, when this Court has already ruled as to
the nature of a certain type of contract, there is no need thereafter to repeat
the exercise in its entirety: unless there are genuinely significant differences
in the facts, the Minister and the Tax Court of Canada should not disregard the
solution adopted by this Court.
. . .
10. Supervision of
the work every second day and measuring the volume every two weeks do not, in
this case, create a relationship of subordination, and are entirely consistent
with the requirements of a contract of enterprise. It is indeed rare for a
person to give out work and not to ensure that the work is performed in
accordance with his or her requirements and at the locations agreed upon.
Monitoring the result must not be confused with controlling the worker.
11. The same is true
of the standards imposed in respect of hours and days of work, holidays,
operating method and safety. The standards are common to all workers in
public forests whose activities are "governed" by the ministère des
Ressources naturelles. They apply regardless of whether the worker is a mere
employee or a contractor.
. . .
[13] In this case, the Appellants were each skidder owner‑operators.
They worked in cooperation with a lumberjack they themselves chose.
They carried out their work on a site determined by the owner of the
cutting rights, and received certain instructions from the latter with respect
to the desired results.
[14] Many factors had an influence on their income, and at the end of the
site, the parties settled their accounts and assumed the financial
consequences. If the wood sold brought less than the advances paid, the forest
worker had to repay the difference. Conversely, if the wood sold represented
more than the advances, days or even weeks were added as a function of the
amounts.
[15] The fact that it was all presented as a contract of service is not
relevant to the legal qualification of the verbal agreement at the source of
these appeals. These are dockets similar to that of Charbonneau (supra).
There is no reason to handle them differently. I therefore conclude that the
work carried out by the Appellant was not carried out under a contract of
service but under a contract for services.
[16] With respect to Appellant Sylvain Lavoie [2003‑1309(EI), 2003‑1310(EI)],
he did not mention any specific fact or element; he stated that he would have
given the same answers as his father, Lyson Lavoie, if the same questions
were asked of him, all of which has the effect of shortening his testimony
considerably. Consequently, all the facts and reasons for judgment in the
Lyson Lavoie dockets, [2003‑9(EI), 2003‑1838(EI), 2003‑1839(CPP),
2003‑1840(CPP), 2003‑1841(EI)], are reproduced for the
Sylvain Lavoie dockets [2003‑1309(EI) and 2003‑1310(EI)].
[17] For these reasons, the appeals are therefore dismissed.
Signed at Ottawa, Canada, this 13th day of
April 2004.
Tardif J.
Translation certified true
on this 26th day
of August 2004.
Shulamit Day, Translator
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