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[OFFICIAL ENGLISH
TRANSLATION]
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Citation: 2003TCC385
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Date: 20030603
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Docket: 2003-128(EI)
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BETWEEN:
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3087-6452 QUÉBEC INC.
(AGENCE LE MONDE),
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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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REASONS
FOR JUDGMENT
Lamarre
Proulx, J.T.C.C.
[1] This
is an appeal from a decision of the Minister of National Revenue (the
"Minister") dated November 1, 2002, according to which
Joan Bureau held insurable employment with the appellant during the period
from March 25, 2001, to March 30, 2002.
[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 (the "Reply")
as follows:
[TRANSLATION]
(a) The appellant is a
placement agency which provides a legal interpretation and translation service;
(b) The payer uses a
list of approximately 600 to 1,000 interpreters in order to meet the needs
of its clients;
(c) Its main clients
are the Municipal Court of Montréal and the various police stations in the
metropolitan Montréal area;
(d) During the period
in issue, Joan Bureau was called by the appellant to work as an
interpreter;
(e) She worked on
call;
(f) She served as an
interpreter for deaf persons;
(g) She worked on the
premises of the payer's clients;
(h) The payer's client
controlled and directed the worker;
(i) The payer paid
the interpreters in accordance with a rate that it had established;
(j) The worker was
paid at an hourly rate of $20 with a three-hour minimum guarantee;
(k) The payer
reimbursed the worker for taxi expenses when she rendered services at night;
(l) The payer billed
its client;
(m) The worker billed
the payer on a monthly basis.
[3] Giovanni Sciascia,
the president of the appellant, Yvan Hart and Alexandre Kubacki
testified for the appellant party. Alain Lacoste testified for the
respondent party.
[4] Mr. Sciascia
is the sole shareholder of the appellant. He is also an official interpreter.
He admitted subparagraphs 5(a) to (g), (i) and (k) to (m) of the Reply. As
to subparagraph 5(h) of the Reply, he stated that the payer's client did
not control or direct the worker. She had to do the work of properly
interpreting what the judge and witness said. As regards the remuneration
referred to in subparagraph 5(j) of the Reply, he explained that the
worker was paid in three-hour blocks, no matter whether she worked five minutes
or not at all.
[5] The
witness explained that the agency offers legal interpretation and translation
services. Interpretation requests are made to the agency by a lawyer, the court
or police. The agency then calls an interpreter to ensure that his or her
services will be provided to the client.
[6] In the
instant case, the worker is a sign interpreter. The agency's secretary told the
interpreter where to go during the day, and Mr. Sciascia at night. Upon
arrival, she handed the court registrar an attendance sheet (Exhibit A‑2),
on which the registrar indicated whether the interpreter's services were
required in the morning or in the afternoon.
[7] Exhibit A‑3
contains the fee claims which the worker made to the agency. It shows that, in
2001, she worked three afternoons in November, two afternoons in December, two
afternoons in February, once in March, two afternoons in May and four full or
partial days in June, and that she also worked once in March 2002 and twice in
June of that year.
[8] The
worker, Ms. Bureau, did not come and testify to describe her conditions of
employment. Her absence was not explained.
[9] The
second witness, Yvan Hart, explained that he worked as a sign interpreter
for the Ministère de l'Éducation on a continuing basis. His name is also in the
appellant's inventory, and he had rendered services for the latter on a number
of occasions. Alexandre Kubacki's name is also in the appellant's inventory.
Mr. Kubacki is an interpreter and works in English, French, Spanish and,
on occasion, Hindi. Both mentioned that, when they worked for the appellant,
they did so as freelancers or self-employed workers.
[10] Alain Lacoste,
an appeals officer, explained that he had spoken with Mr. Sciascia, who
had confirmed that his business was a placement agency. Without asking any
further questions as to the worker's conditions of employment, he had therefore
concluded that paragraph 6(g) of the Employment Insurance
Regulations (the "Regulations") applied.
[11] Counsel
for the appellant relied on the decision of Deputy Judge Porter of this
Court in Saskatchewan Deaf and Hard of Hearing Services Inc. v. M.N.R.,
[2001] T.C.J. No. 38 (Q.L.). In that case, the appellant was a non-profit
organization that made interpreters available to deaf, hard of hearing and late
deafened persons. The worker had been hired to provide this type of service.
The appellant contended that it had hired the worker as an independent
contractor to join the team of interpreters that it employed, in accordance
with a contract for services. The Minister had ruled that the contract was a
contract of service.
[12] Counsel
for the appellant stated that Judge Porter had analyzed the meaning that
should be attached to paragraph 6(g) of the Regulations,
which reads as follows:
6. Employment in any
of the following employments, unless it is excluded from insurable employment
by any provision of these Regulations, is included in insurable employment:
. . .
(g) employment of a person who is placed in that
employment by a placement or employment agency to perform services for and
under the direction and control of a client of the agency, where that person is
remunerated by the agency for the performance of those services.
[13] Counsel
argued that, relying on the decision of the Federal Court of Appeal in Vulcain
Alarme Inc. v. M.N.R., [1999] F.C.J. No. 749 (Q.L.),
Judge Porter had concluded that it must be determined whether a
relationship of subordination exists between the interpreter and the agency's
client. Judge Porter had concluded on an analysis of the worker's
conditions of employment that the contract was a contract for services, not a
contract of service.
[14] The
respondent's agent relied on the decisions of the Federal Court of Appeal in Canada v.
Agence de Mannequins Folio Inc., [1993] F.C.J. No. 910 (Q.L.), and Sheridan v.
Canada, [1985] F.C.J. No. 230 (Q.L.). Both cases concern placement
agencies, for models in the first case and nurses in the second. The
respondent's agent argued that the appellant was a placement agency and that
the worker had been under the direction and control of the judge or the police,
as the case might be, and that her employment was therefore insurable within
the meaning of paragraph 6(g) of the Regulations.
Analysis
[15] I cite
paragraph 6(g) of the Regulations once more:
6. Employment in any
of the following employments, unless it is excluded from insurable employment
by any provision of these Regulations, is included in insurable employment:
. . .
(g) employment of a person who is placed in that
employment by a placement or employment agency to perform services for and
under the direction and control of a client of the agency, where that person is
remunerated by the agency for the performance of those services.
[16] The key
words in the text of this regulatory provision are "under the direction
and control". To determine whether an employment is insurable, it must be
ensured that the person is under the direction and control of the agency's
client or, in other words, it must be determined whether there was a
relationship of subordination between the worker and the agency's client.
[17] To that
end, the conditions of employment between the worker and the agency's client must
be considered. Were those conditions similar to those of a contract of
employment or to those of a contract of enterprise?
[18] A
contract of employment is defined as follows in Article 2085 of the Civil
Code of Quebec (the "Code"):
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.
[19] A
contract of enterprise or for services is defined as follows in
Article 2098 of the Code:
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.
[20] It
should be recalled here that the worker, Ms. Bureau, did not come and
describe her conditions of employment. Reference must therefore be made to the
documents filed and the testimony provided by the persons and the worker. The
description of Ms. Bureau's conditions of employment is at first glance
consistent with a contract for services and not at all a contract of
employment.
[21] The worker
acted as an interpreter for the agency's various clients: the courts, the
police and others. She had to render the professional service for which she
reported at the appointed time and place. She did not work exclusively for the
appellant or for any client of the appellant. Her work was sporadic,
discontinuous work done in accordance with the needs of the agency's clients
and the worker's availability. She worked a few days each month during the
period in question and changed places of work in accordance with the needs of
clients and her own availability. In this case, there was no element of a
relationship of subordination between the worker and the agency's client.
[22] As to
the other tests used to distinguish a contract of employment from a contract of
enterprise, the worker, as an interpreter, supplied her own tools. She was not
integrated into the appellant's business or that of the client. This was the
worker's business. Ms. Bureau had a chance of profit.
[23] In
conclusion, the contract was a contract of enterprise, not a contract of
employment. The appeal is accordingly allowed.
Signed at Ottawa, Canada, this 3rd day of
June 2003.
J.T.C.C.
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