Date: 20000822
Docket: 1999-1529-EI
BETWEEN:
MUNICIPALITÉ D'EASTMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
DENIS LARAMÉE,
Intervenor.
Reasonsfor
Judgment
Tardif, J.T.C.C.
[1]
This is an appeal from a determination dated February 5, 1999. In
that determination, the respondent concluded that there was an
employer-employee relationship between the appellant and the
worker, Denis Laramée, from January 1, 1997, to
September 30, 1998, while Mr. Laramée served as chief of
the volunteer firefighters.
[2]
The appellant's agent and the intervenor agreed to proceed on
common evidence. The appellant admitted all the facts assumed by
the respondent in support of the determination at the centre of
these proceedings.
[3]
Those facts are as follows:
[TRANSLATION]
(a) the appellant operated a fire department with 13 to
15 volunteer firefighters and 3 officers;
(b) pursuant to an agreement, the appellant also provided the
services of its fire department to the neighbouring municipality
of Bolton-Est;
(c) paragraph 3.1 of the appellant's by-law 9-96 provided
for the appointment of a fire chief by the town council;
(d) the worker was employed as chief of the volunteer
firefighters;
(e) the worker's duties involved, inter alia,
co-ordinating and supervising staff while fighting fires,
organizing monthly drills, writing reports, managing the
department, ensuring compliance with safety requirements and
regulations and ensuring that the equipment was in good
condition;
(f) the appellant provided the worker and the volunteer
firefighters with all firefighting tools and equipment;
(g) the appellant provided the worker with a cellular
telephone and a pager;
(h) the worker received an hourly wage of $9 during drills and
$15.02 while fighting fires;
(i) the worker had to organize a three-hour drill each month
for all the volunteer firefighters;
(j) each month, the worker received $203 in additional pay
from the appellant for performing his various duties and taking
part in meetings;
(k) the worker was paid by cheque each month;
(l) the worker had no risk of financial loss nor any chance of
profit other than from what he was paid monthly;
(m) the worker had to give 30 days' written notice if he
wanted to quit his job.
[4]
Ms. Deslongchamps, the appellant's secretary-treasurer, and
Denis Laramée in his capacity as intervenor testified
in support of the appeal. Their testimony showed that the
appellant had planned, defined and organized the work done by the
fire chief through a very elaborate by-law, namely
by-law 9-96.
[5]
The witnesses stressed the voluntary participation and
availability aspects; the work was done on an ongoing basis and
its primary purpose was, of course, to ensure that a team with
adequate preparation and appropriate equipment in good condition
was always ready to take action to save and protect both property
and people.
[6]
Mr. Laramée began by saying that he was a carpenter who
had to work outside the municipality in that job that was his
livelihood. He said that he was easy to reach when a call came in
requiring a response and that he made the appropriate decisions
based on a number of factors, including availability and the
distances to be covered. Occasionally, he could simply request
that a group of outside firefighters employed by another
municipality respond to the call.
[7]
As chief of the volunteer firefighters, he made sure that the
equipment and gear were always in good condition through visits
to the premises where everything was stored. He
co-ordinated the availability of a group of about
15 volunteer firefighters both for drills and for the
various training courses that were occasionally offered.
[8]
Following each fire response, the chief prepared a report and
submitted it to the appellant. He was paid an hourly rate of $9
for drills and $15 for actual firefighting. He received in
addition another $200 or so a month.
[9]
The appellant's agent explained that that amount was
basically a bonus to make up for the various outlays made by
Mr. Laramée in performing his duties, including
amounts spent for the use of a car.
[10] There is
no doubt that the content of by-law 9-96 suggests very strongly
that it should be concluded that the work done by Mr.
Laramée was insurable. Indeed, that by-law is very
explicit and provides for all the components required for a
contract of service to exist, in particular with respect to
remuneration, the description of the work, the various
responsibilities, the cost of clothing and the work tools.
Moreover, the by-law makes it equally clear that the appellant
had a right of supervision and intervention regarding the manner
in which the work was performed.
[11] The said
by-law should be appended to this judgment.
APPLICABLE LAW
Parliament has very specifically excluded certain types of
employment: the relevant exclusion is found in paragraph
7(e) of the Employment Insurance Regulations, which
reads as follows:
7. The following employments are excluded from
insurable employment:
. . .
(e) employment of a person for the purpose of a rescue
operation, if the person is not regularly employed by the
employer who employs them for that purpose.
[12]
According to the respondent, the exclusion does not apply given
that the appellant regularly paid $203 a month. The respondent
argued that the payment of that regular monthly amount meant that
the employment was regular, steady and continuous.
[13] I do not
think that the payment of that monthly amount allows for such an
interpretation, since it was basically an allowance, an
incentive, a kind of bonus to encourage the proper performance of
work, compensation to cover incidental expenses (such as the cost
of using a car) and the time spent setting up the
co-ordination of operations, etc.
[14]
Moreover, it is basically a minor amount that cannot be a
sufficient basis for a conclusion that the fire chief was
regularly employed by the appellant and that he had been hired
with that in mind.
[15] The fire
chief was paid $9 an hour for drills and $15 for work done at the
scene of an emergency. The average allowance corresponds to an
hourly rate of about $12. Accordingly, the monthly premium
represented about 17 hours a month or about 4 hours a week. How
can it be claimed that this was regular employment, especially
since part of the amount was in place of repayment of
expenses?
[16]
Larousse defines "régulièrement"
(regularly) as follows:
[TRANSLATION]
1.In a legitimate or legal manner.
2. With regularity, uniformity.
3. Normally, ordinarily.
[17]
Parliament has expressly provided for the exclusion of certain
types of employment from insurable employment. I do not think
that it is possible or appropriate to circumvent the exceptions
formally established by Parliament by resorting to
interpretations that are not supported by determining facts. The
respondent's arguments are based on a circumstantial element
put in place by the appellant to help ensure the efficient
operation of a service essential to the community.
[18] Given
that the only regular aspect was the payment of the $203 monthly
allowance, is that factor enough to render the exclusion provided
for by the Employment Insurance Act ("the
Act") inoperative? I do not think so. It is my view
that that factor must be assessed in the context of the facts as
a whole.
[19] In the
instant case, the appropriate conclusion is that the payment in
question was an administrative practice meant to simplify and
facilitate sound administration.
[20]
Moreover, that fact alone is not a significant component of the
agreement between the appellant and the fire chief; it is a
secondary term thereof that must be assessed in the overall
context.
[21] The
evidence showed that Mr. Laramée had complete discretion
as to whether or not to go to the scene of an emergency, even
though the emergency was located on the territory for which he
was responsible. That flexibility, which was in keeping with the
special nature of his status with the appellant, confirms the
existence of an independence that is totally inconsistent with
the holding of regular employment.
[22] The only
thing that was regular was the payment of the monthly amount,
since the intervenor could choose whether or not to go and check
the state of the equipment. That was left to his complete
discretion and was determined solely by his interest in doing
good work and in ensuring that the team could, when the time
came, count on equipment that was in good condition.
[23] The
weight of the evidence showed that the work done by the
intervenor constituted employment of a person for the purpose of
a rescue operation. The intervenor was not regularly employed.
His job was to ensure the continuing operation of, and to head
up, the fire department; this did not make him a regular
employee, since the only constraints to which he was subject were
those placed on him by emergencies.
[24] In the
instant case, the work done by the intervenor, Denis
Laramée, was in keeping with that defined in the exception
provided for by the Act and must therefore be excluded
from insurable employment.
[25] The
appeal is allowed.
Signed at Ottawa, Canada, this 22nd day of August 2000.
"Alain Tardif"
J.T.C.C.
Translation certified true on this 8th day of November
2001.
[OFFICIAL ENGLISH TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-1529(EI)
BETWEEN:
MUNICIPALITÉ D'EASTMAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
DENIS LARAMÉE,
Intervenor.
Appeal heard on June 12, 2000, at Sherbrooke,
Quebec, by
the Honourable Judge Alain Tardif
Appearances
Agent for the Appellant:
Maurice
Friard
Counsel for the
Respondent:
Diane
Lemery
For
the Intervenor:
The
intervenor himself
JUDGMENT
The appeal is allowed and the Minister's decision vacated
in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 22nd day of August 2000.
J.T.C.C.
Translation certified true
on this 8th day of November 2001.
Erich Klein, Revisor
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