Date: 19990504
Docket: 98-1191-UI
BETWEEN:
ROBERT SOULIÈRE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for judgment
Lamarre, J.T.C.C.
[1] This is an appeal from a decision by the Minister of
National Revenue (the "Minister") according to which
the appellant held insurable employment within the meaning of
paragraph 5(1)(a) of the Employment Insurance
Act (the "Act") with 133879 Canada Inc. operating
as Publicom (the "payer") during the period from
December 1, 1996 to December 31, 1997. In making his
decision, the Minister relied on the facts stated in
paragraph 10 of the Reply to the Notice of Appeal. Those
facts read as follows:
[TRANSLATION]
(a) for the past 15 years, the payer has operated in the
field of advertising and graphic design of logos and advertising
flyers; (admitted by the appellant)
(b) the appellant has worked uninterruptedly for the payer for
more than nine years;
(c) the appellant works for the payer on a full-time
basis;
(d) the appellant works for the payer as a contracts manager;
(admitted by the appellant)
(e) the appellant's duties are to manage the contracts
which the payer obtains, see to the proper execution of the
projects, handle the graphic designers and search for reports and
photographs; (admitted by the appellant)
(f) the appellant provides most of his services on the
payer's premises since all the equipment and documents are
located there;
(g) the appellant bills the payer for his time worked;
(h) the payer supplies everything the appellant needs to
perform his duties;
(i) there is a contract of service between the appellant and
the payer.
[2] The appellant was the only person to testify. He said he
was a communications consultant and worked solely for the payer,
for which he has been carrying out contracts for the past
10 years. He works on one contract at a time and performs
his duties on a regular basis.
[3] The work may vary. For example, the appellant may develop
a marketing survey questionnaire or prepare advertising plans.
Broadly speaking, he performs the work and manages the projects
of the payer, which recruits the clients. The appellant said that
he billed lump-sum amounts, but was paid $500 a week during the
year in issue under an agreement negotiated with the payer. He
indicated that this remuneration could be readjusted upwards or
downwards, although there was no evidence that this was indeed
done. The appellant said that the payer gave him enough work to
ensure a certain degree of regularity in the payment of his
remuneration.
[4] The appellant has a computer at home, but also has a fully
equipped office at his disposal on the payer's premises. He
said he had incurred certain expenses for his work, but did not
produce invoices for those expenses.
[5] The appellant has a business card with the payer's
name. He could be away from work as he wished, but undertook to
finish his projects by a specific date. Although he said he did
not have to report to the payer, he did mention that he had to
meet the payer's representatives to tell them how far along
the various projects were.
[6] The appellant invested no money in the payer's
business during the year in issue. He said he also signed a
contract with the payer at the start of their business
relationship, but that contract was not adduced in evidence.
Analysis
[7] The point for determination is whether the appellant was
hired under a contract of service with the payer during the
period in issue pursuant to paragraph 5(1)(a) of the
Act. For this determination, the criteria restated in Wiebe
Door Services Ltd. v. M.N.R.,[1] that is control, ownership of the tools, chance
of profit and risk of loss as well as the integration or
organization test, that is to say, whether the appellant worked
for his own business or for that of the payer, must be analyzed
in light of the whole of the elements which constitute the
relationship between the parties.
[8] This is a borderline case in which we find elements of
both a contract of service and a contract for services.
[9] With respect to the control exercised by the payer over
the work performed by the appellant, although that control was
not exercised regularly, it seems to me the payer had a certain
right of control over the appellant's work.[2]
[10] To all intents and purposes, the appellant in the case at
bar was the payer's executant in the performance of the
payer's undertaking toward its clients to carry out various
projects.
[11] The evidence showed that regular remuneration was paid
during the period in issue. Whether it be characterized as
advances or otherwise, the appellant ultimately incurred no risk
because he was assured of being paid for his hours of work. The
payer also supplied a fully equipped office.
[12] As to the criterion of integration of the appellant's
activities into the payer's business, the contractual
relationship between the payer and its clients was in no way
binding on the appellant. The appellant provided services to the
payer, which itself had undertaken to perform the work requested
by the client.
[13] It was the payer that found the contracts; the appellant
merely did what the payer asked him to do. He was one executant
among others who contributed to the payer's good reputation.
In this sense, the appellant did not act as a person operating
his own business, but as an employee of the payer.
[14] In view of these various elements, it is my opinion that
the appellant did not show on the balance of probabilities that
he was not hired pursuant to a contract of service during the
period in issue.
[15] His employment was accordingly insurable under the Act.
The appeal is dismissed and the determination by the Minister is
affirmed.
Signed at Ottawa, Canada, this 4th day of May 1999.
"Lucie Lamarre"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 25th day of February
2000.
Erich Klein, Revisor
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