Nabet v. M.N.R., docket 97-1591-UI

Date: 19990202

Docket: 97-1591-UI

BETWEEN:

ANNE NABET,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

UNIVERSITÉ LAVAL SERVICE DES FINANCES,

Intervener.

Reasons for judgment

Lamarre Proulx, J.T.C.C.

[1] The appellant is appealing from a decision by the Minister of National Revenue (“the Minister”) that, from January 1 to September 30, 1996, she did not hold insurable employment within the meaning of paragraph 3(1)(a) of the Unemployment Insurance Act and paragraph 5(1)(a) of the Employment Insurance Act (“the Act”) with Université Laval, hereinafter sometimes referred to as “the payer”.

[2] The issue is whether the relationship between Université Laval and the appellant was an employer-employee relationship or a professor-student relationship.

[3] In making his decision, the Minister relied on the facts set out as follows in paragraph 5 of the Reply to the Notice of Appeal (“the Reply”):

[TRANSLATION]

(a) during the period at issue, the appellant was a student enrolled at the payer institution;

(b) she had to pay tuition fees;

(c) she was doing research work to finish her thesis and thus complete her doctoral studies program at the payer institution;

(d) the remuneration the payer paid the appellant came from grants it had received from the National Research Council;

(e) the appellant worked on her research project alone;

(f) her professor was Michel Pézolet;

(g) Mr. Pézolet occasionally made suggestions as to paths the appellant’s work might take so as to help her make progress in her research;

(h) the payer did not impose a strict schedule on the appellant, but she usually worked from 9:00 a.m. to 6:00 p.m. Monday to Friday;

(i) the payer renewed the appellant’s contract every three months;

(j) the payer did not control the appellant’s work.

[4] The appellant admitted subparagraphs 5(a) to (d) and (i) of the Reply.

[5] The appellant filed as Exhibit A-1 three contracts entered into by her and Université Laval. Her category was described as "doctoral student" and under job title there appeared the notation "N/A". It was stated at the bottom of each document that the amount under the contract would not be paid unless all of the work was performed. The appellant pointed to that statement and to the fact that her salary increased starting with the second contract, since she worked more hours at the same hourly rate. She filed as Exhibit A-3 the contract of her spouse, Claude-Paul Lafrance, to show that it was no different from hers, at least as regards the note at the bottom stating that the amount under the contract would not be paid unless all of the work was performed.

[6] However, in Mr. Lafrance’s contract, his category was described as “research fellow or assistant” and his job title was “research assistant”. The hourly rate was also different.

[7] The appellant entered into the contracts found in Exhibit A-1 in the context of writing her doctoral thesis. She enrolled in the Ph.D. program in 1992 and obtained her degree in 1997.

[8] She argued that Michel Pézolet controlled her work as an employer and not a professor.

[9] The appellant’s statutory declaration was filed as Exhibit I-1. It reads as follows:

[TRANSLATION]

. . .

I came to Canada to continue my studies. I initially had scholarships to help me. I have had employment contracts for three years.

. . . My jobs at Université Laval are associated with my field of study. I do not have to complete a timesheet; I am free to do my work and to determine my hours of work, and I work at my own pace. . . . I have no schedule for handing in my work.

[10] Counsel for the respondent referred to The Hospital for Sick Children v. M.N.R. and Carole O’Beirne, a decision on a matter similar to the one in the instant case that was rendered by Judge Christie of this Court on July 23, 1993.

[11] That case involved grants awarded by the Medical Research Council of Canada to academic institutions or research institutes. Although the grant application was made by the researcher, it was the researcher’s employer who received and administered the funds. Carole O’Beirne’s job was to conduct research and finish her thesis. The gauge of the assistance provided by the researcher who supervised the student’s thesis work was the student’s personal need. It was held that the relationship between the principal researcher and Carole O’Beirne was one of professor and student. The principal researcher alone could not have specified the work to be done by the student, since that was decided by arriving at a consensus.

[12] The appellant referred to the decision of Judge Archambault of this Court in Francine Charron v. M.N.R., which was rendered on January 28, 1994. According to the judge’s interpretation of the evidence, the case was one in which the appellant, although paid out of research funds supposedly in the context of obtaining a master’s degree, was actually doing work requested of her by the principal researcher. When she was hired, she was not yet enrolled in the master’s program. In those circumstances, the Court held that there was an employer-employee relationship between the principal researcher and the appellant.

[13] The case at bar is similar to The Hospital for Sick Children case, supra, and it is my view that that decision properly sets out the law regarding the legal status of a student paid out of research funds: there is no insurable employment if the student is paid for research done as part of a work program the student has drawn up himself or herself; although a professor may have helped the student establish the work program, that program remains the student’s program and serves the student’s purposes; the student controls the use of his or her time; the professor is there to give advice; the work is done for the student’s benefit; no services are provided to an employer.

[14] Likewise, in the case at bar, it was in the context of writing her thesis that the appellant was paid, in accordance with the contracts found in Exhibit A-1, out of the research funds received by Université Laval for research work. It should be noted that Professor Pézolet did not appear as a witness to testify that the instructions he gave the appellant on how she should use her time and the type of work to be done were not what is customary in the case of a research project carried out by a student for the purpose of obtaining a Ph.D. In such circumstances, the professor provides supervision but does so as a professor, not as an employer. The work to be done is determined by the student, as is the use of the student’s time. In my opinion, the evidence clearly showed that the appellant was not in an employment situation. The amounts she received were in the nature of grants or financial assistance to students, not remuneration for services provided to an employer.

[15] The appeal is accordingly dismissed.

Signed at Ottawa, Canada, this 2nd day of February 1999.

“Louise Lamarre Proulx”

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]