Date: 20000114
Dockets: 96-2042-UI; 96-116-CPP
BETWEEN:
ALLIANCE FRANÇAISE D'HALIFAX DARTMOUTH,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
GHISLAINE LAGUENS, BÉNÉDIKTE VERCAEMER,
Interveners.
Reasons for Judgment
McArthur, J.T.C.C.
[1] The appellant is a non-profit association whose mandate is
to contribute to the promotion of the French language and culture
in Nova Scotia. The appellant offers courses in French as a
second language to various groups and individuals.
[2] The issue is whether the instructors engaged by the
appellant held insurable employment within the meaning of
paragraph 3(1)(a) of the Unemployment Insurance
Act. In a letter dated November 30, the respondent indicated
that he wished to consent to judgment in the case of
Claude Aucoin, a cook.
[3] The statement of facts and of the appellant’s
position, reproduced hereinafter, is primarily taken from the
written argument submitted by the appellant:
[TRANSLATION]
The Alliance française is an independent organization
whose headquarters are in Paris . . . . It has branched out and
has approximately 1,300 Alliances worldwide, of which 12 are in
Canada. An executive officer in Ottawa co-ordinates cultural
activities. . . . Each Alliance is a non-profit association,
operating and financed independently of the Alliance in
Paris.
The purpose of the Alliance is to promote French language and
culture in the context of la Francophonie generally, and
cultural and linguistic duality in Canada. . . . Each
Alliance has an identical constitution. It is a non-profit
association made up of members who pay annual dues of $20 to $50.
. . . The Halifax-Dartmouth Alliance . . . has experienced both
good times and hard times, depending on the degree of activity of
its volunteers . . . . [I]n 1988, it was taken in hand;
conversation classes were offered in various
locations . . . .
Our instructors/consultants come from all sorts of
backgrounds: university professors, high school and elementary
school teachers, master’s and doctoral students,
translators and second-language instructors.
All of them . . . consider the Alliance as a supplementary
income source, if not as a service (free conversation courses
given by board members).
. . . Working at the Alliance is thus, for most of the
instructors/consultants, just a temporary activity and, for
example, 86 percent of the people who worked there in 1995 are no
longer there.
. . .
Instructors/consultants are hired after an interview with the
director and submission of their credentials. They have an oral
contract and choose whatever course or courses suit them best,
whether in terms of course level, location or proposed schedule
(the schedule is not a fixed one and may change on consultation
with the instructor and the student or students). . . . The
Alliance does not guarantee a fixed monthly income. . . . The
instructors submit a written report to the Alliance at the end of
their contract and are responsible for following the
students' progress and having them change levels if
necessary. Evaluation of the instructor’s work is performed
informally by the students. If they are happy, they come back; if
they are unhappy, they let it be known by telling the director or
the instructor and, above all, by not coming back. In the last
ten years, incidentally, the Alliance has never had to refrain
from giving a contract to anyone because of a lack of
professionalism.
How they are paid
Generally, the instructors/consultants submit at the end of
the month (but sometimes at the end of the contract) an invoice
that is paid by the Alliance. They indicate the number of hours
of instruction and the number of hours not charged for. The
Alliance has a fixed hourly rate covering instruction time only.
Each instructor/consultant is thus responsible for his own
course. It is up to him to have himself replaced (and to find a
replacement if necessary) or to reschedule the class at a later
time.
Where they work
The courses may be taught wherever the instructor/consultant
wishes (with the agreement of the student or students). Some
classes are offered at the Alliance's premises, in the
offices of companies proposing courses to their employees, at a
student's or instructor’s home, in schools, on the
telephone or in some other place. Thus, the location is agreed
upon by the instructor and the student or students.
Tools used
The courses offered by the Alliance are almost exclusively
conversation classes . . . The choice of teaching materials is
therefore left up to the instructor (with the agreement of the
student or students). The Alliance therefore does not dictate a
particular subject of conversation for a class.
. . .
The students and their membership
Students come to the Alliance as much for the classes as for
the cultural activities (they automatically become members of the
Alliance and may take advantage of everything the Alliance
offers).
Assessment of the criteria
Conclusion
-- control over the hours, which is, in the first place, left
up to the instructor . . . Each instructor had his own diplomas
and his own experience of the language. The fact that we have
instructors with Quebec, Acadian, French, anglophone and Lebanese
backgrounds is clear evidence that the *equipment* involved here
is the exclusive property of each instructor.
-- the choice of teaching materials is in part suggested by
the student’s objectives, and thus it is up to the
instructor to adapt his own teaching techniques. . . .
-- the locations used by the instructors vary greatly, as has
already been mentioned. . . . [W]e would like to emphasize first
of all that in the past some of us here have taught for the
Alliance elsewhere and we have always been treated as
self-employed workers without its ever being a problem.
Lastly, we would like to explain our association’s
financial situation. We have neither the means nor the desire to
operate as a business. In fact, the Alliance française de
Halifax-Dartmouth receives only a minimal subsidy from the French
government ($2,500 per year) and largely depends on volunteers.
Thus, we are almost totally self-financing. Nonetheless, we take
an active part in the life of the community by presenting
cultural events and by participating in the bilingualism policy
in Canada. The amount of $6,784.86 that we are being asked to pay
to cover pension contributions and unemployment insurance
premiums for 1995 threatens to deal our association a fatal blow
(indeed, it would be very hard for us to recover the
contributions from the instructors, a number of whom no longer
work for us and/or have moved away). We think we are not alone in
believing that the possible closing of our cultural centre would
be a loss for the cultural life of our region.
[4] In reaching his decision, the respondent relied on a
number of assumptions of fact that are incorrect. Among these
assumptions, taken from paragraph 5 of the Reply to the
Notice of Appeal, are the following:
[TRANSLATION]
(e) the appellant assumes all expenses associated with the
business;
This is incorrect: the instructors paid most of their own
expenses related to the courses they gave.
[TRANSLATION]
(f) the employees were hired to give French courses to the
appellant’s clients;
This is not entirely correct, because the instructors
attracted clients themselves.
[TRANSLATION]
(i) the appellant was responsible for the quality of the
courses given by its employees;
According to the evidence, the instructors were responsible
for course content.
[TRANSLATION]
(k) the appellant was responsible for setting its criteria for
the courses that it wanted to offer to its clientele;
The evidence shows that the instructors set their own
criteria.
[TRANSLATION]
(o) the Hamilton and Ottawa branches consider their
instructors as employees hired under contracts of service, in
agreement with the Department of National Revenue;
The appellant said that, in Ottawa and Hamilton, 90% of the
instructors were considered as employees and 10% as self-employed
workers.
[TRANSLATION]
(p) the clientele belonged to the appellant and not to the
employees;
As indicated above, the clientele was partly the
appellant’s and partly the instructors’.
[TRANSLATION]
(s) most of the instructional materials were provided by the
appellant;
Here again, the material was in fact provided by the appellant
and by the instructors.
[5] The key issue is whether the instructors were employed
under a contract of service or under a contract for services. The
leading case in this area of the law is Wiebe Door
Services, [1986] 2 C.T.C. 200. This decision set
out four tests: control, ownership of tools, chance of profit or
risk of loss and integration (or organization). This is actually
a four-in-one test and in applying the test the total
relationship of the parties must be considered.
[6] It should be noted that most of the instructors signed a
document stating: [TRANSLATION] “I the undersigned
----------- am in agreement with the attached letter of the Board
of Directors of the Alliance française”. Certainly,
one might feel inclined to allow the appeal out of sympathy in
order to support such a praiseworthy association, but the
relevant legal rules must be faithfully applied. Naturally, I am
aware that the outcome of this appeal could be crucial for the
survival of the Alliance.
[7] A number of impressive instructors testified for the
appellant. They said that they knew the difference between a
self-employed worker and an employee and that they were not
employees. Unlike the situation in Hennick v. Canada,
[1995] F.C.J. No. 294, there was no written contract in this
case. I will now apply the tests to the facts of this case:
Control. Applying some of the tests often used by the Minister
of National Revenue, I find as follows:
(a) the instructors’ hours of work were not fixed, but
flexible;
(b) they did not have to provide any reports to the appellant
concerning the instruction they gave;
(c) they were free to teach courses to other people whenever
they wanted;
(d) they received little or no direction: they were
professional teachers who taught as they saw fit;
(e) when they could not teach because of illness or for some
other reason and the class had already been included in the
schedule, they found their own replacement, and the appellant
played no role in this;
(f) their clients consisted of their own students and the
appellant’s students; and
(g) there was no list of materials to keep.
[8] The control test tends to indicate that the instructors
were not employees. The instructors had skills that they had
acquired over the years independently of any relationship with
the appellant. They were invited to exercise these skills,
without being subject to any control and as they saw fit, in
courses given to persons interested in learning the French
language. They chose their own replacements.
[9] Ownership of tools. The instructors were highly competent
and used their teaching talent, with no structure being imposed
on them by the appellant. The appellant provided minor teaching
aids such as blackboards or slide projectors, but it is not clear
whether that material was used by the instructors. Some
instructors supplied their own teaching materials such as felt
pens and manuals. This test tends to indicate that the
instructors were not employees.
[10] Chance of profit or risk of loss. Once or twice a month,
each instructor submitted a statement of the hours that he had
taught and was then paid in accordance with the fixed rate. The
instructors were not reimbursed for any expenses such as travel
expenses or expenses related to the use of their residence or
their own telephone. This test tends to indicate that they were
employees.
[11] Integration. The appellant performs activities in the
field of promoting French culture. In so doing, it has turned to
experienced teachers to provide language instruction. The
teaching skills of each of these instructors were unique and
personal. Each instructor undeniably had the ability and freedom
to teach as he saw fit. From this point of view, it was the
instructors' business as much as the appellant's. The
criteria of integration is therefore not decisive.
[12] Taking into account all the elements involved in the
appellant’s operations, I find that each instructor was a
self-employed worker.
[13] The total relationship of the instructors and the
appellant was one in which the instructors were paid to teach
from time to time, as they themselves decided, exercising their
skills at their own discretion, with no control being exercised
over them. I concur in the analysis of Deputy Judge Potvin in
Ferme Gendroline Enr. v. Canada (Minister of National
Revenue), [1987] T.C.J. No. 910, and, for the purposes
of this appeal, I adopt his reasoning. More specifically, at page
5, Deputy Judge Potvin said:
With respect to control of the employee's work by the
employer, it must be recalled that the degree of control
exercised by the employer over the employee's work remains
the essential test in determining whether there is the
subordinate relationship that characterizes a contract of
employment, although the degree of control may vary according to
the circumstances and often depends on the nature of the work to
be performed. Control means having the . . . power to require
another person to perform a specific activity, act in a
particular manner and maintain a certain line of conduct.
However, this power may be general or, on the contrary, it may be
specific.
Thus we see that the evidence was silent as to control by the
employer of the employee's work, and Ms. Parent Raymond
appeared to be free to do her work as she chose, because both Ms.
Pitre and Mr. Gendron worked outside the home.
[14] In Hennick, the Federal Court of Appeal had found
that a part-time music instructor was an employee of the Royal
Conservatory of Music. The facts in this case clearly distinguish
the Alliance's situation from that of the Conservatory. The
instructors at the Conservatory entered into a written contract
giving control to the Conservatory over when, where and how the
instructors would work. Desjardins J.A. said, at page 4:
While it is true that the element of control is somewhat more
difficult to assess in cases of professionals, the trial judge
completely ignored that, on January 15, 1993, the intervener
notified the respondent that she had not fulfilled the minimum
teaching requirement as stipulated in the collective agreement
and that she was requested to increase her teaching load. While
her contract with the intervener did not specify how she was to
teach, there were parameters she had to meet with regard to time
which clearly constituted control. The trial judge erred in
failing to consider this piece of evidence.
[15] In the case of the Alliance, there was no written
contract. The parties were not acting in concert. The instructors
did not consider themselves as being under the Alliance’s
control. They had expertise and they gave lessons when they
wished, where they wished and how they wished. There was thus no
control. The instructors were not employees. I accept the
depositions of the witnesses for the appellant, who expressed
themselves well and with precision. The respondent submitted no
evidence. The depositions of the witnesses for the appellant were
not contradicted. Having regard to the evidence as a whole and
applying the tests in the manner prescribed in Wiebe Door,
I find that the instructors were not employees of the Alliance.
Each case must be examined on its own facts, and weight must be
given to what actually happened, that is, the reality of the
relationship that existed during the years in question, rather
than speculating on what might have happened. It is quite
possible that in other cities there are Alliance offices where
the relationship between the Alliance and its instructors is an
employer-employee relationship, but this is not the case in
Halifax.
[16] The appeal is allowed.
Signed at Ottawa, Canada, this 14th day of January 2000.
"C.H. McArthur"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 31st day of January
2001.
Erich Klein, Revisor
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