Grenon v. M.N.R., docket 1999-1959-EI

Date: 20000327

Docket: 1999-1959-EI

BETWEEN:

PHILIPPE GRENON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Somers, D.J.T.C.C.

[1]      This appeal was heard at Québec, Quebec, on February 28, 2000.

[2]      The appellant is appealing a decision by the Minister of National Revenue (the "Minister"), that the work done by Ms. Valérie Mercier, the worker, for the appellant during the period at issue, namely from September 3, 1997, to June 26, 1998, was insurable employment within the meaning of the Employment Insurance Act (the "Act"). Furthermore, the Minister determined that the insurable earnings for this employment were $4,158 for a total of 346.50 insurable hours in 1997 and $6,696 for a total of 558 insurable hours in 1998.

[3]      Subsection 5(1) of the Act reads in part as follows:

5.(1) Subject to subsection (2), insurable employment is

            (a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;

. . .

[4]      The burden of proof is on the appellant, who must show on a balance of evidence that the Minister's decision was unfounded in fact and in law. Each case turns on its own facts.

[5]      In making his decision, the Minister relied on the following facts, set out in paragraph 5 of the Reply to the Notice of Appeal, which facts the appellant either admitted or denied:

[TRANSLATION]

(a)         The appellant is a young man in his twenties with cerebral palsy who resides permanently at the Centre Cardinal Villeneuve. (admitted)

(b)         Jacqueline Seuthé, the appellant's mother, is charged with administering her son's "affairs". (admitted)

(c)         The appellant attended the Louis-Joliet school and, in view of the appellant's handicap, that institution required that he be accompanied by someone in all his activities at the school. (admitted)

(d)         The worker was recruited by Ms. Louise Simon (a social worker), with the appellant's approval, to serve as attendant for the appellant. (admitted)

(e)         The worker's duties were at all times performed in the presence of the appellant since those duties were determined solely by the appellant's needs. (admitted)

(f)          The worker's schedule was determined by the appellant's school timetable and she had to adhere to that timetable. (admitted)

(g)         The worker had to inform Ms. Seuthé of her hours of work every week. (admitted)

(h)         An employment contract was signed between the worker and Jacqueline Seuthé, representing her son (the appellant). (admitted)

(i)                   The worker's employment contract specified her duties, her work schedule and her salary ($12 an hour). (denied)

(j)          The worker was paid by cheque, the cheques being signed by Jacqueline Seuthé on behalf of the appellant. (admitted)

[6]      Réjean Grenon, the appellant's father, testified in the presence of the appellant. All the facts stated in paragraph 5 of the Reply to the Notice of Appeal were admitted, except those in subparagraph (i). However, Réjean Grenon admitted in his testimony that the worker was paid $12 an hour.

[7]      The employment contract filed as Exhibit I-1 reads as follows:

[TRANSLATION]

Valérie Mercier accompanied Philippe Grenon all through the 97-98 school year. Her work consisted of dressing and undressing him on arrival at or departure from school, feeding him at lunch and during breaks, and assisting him in class and in his school work, as well as during outings organized by the school, the Centre Louis-Joliet. Philippe receives a government grant because the therapists at the Centre Louis-Joliet decided, after looking into the matter, that he needs and will need an attendant at school at all times.

Start of employment: Wednesday, September 3, 1997

Number of hours per workday: 4.5

Hourly wage: $12

Sept.                 18 days             81 hrs      $972.00

Oct.                  24 days            108 hrs $1,296.00

Nov.                 20 days               90 hrs $1,080.00

Dec.                  15 days             67.5 hrs                $810.00

Jan.                   20 days             90 hrs $1,080.00

Feb.                  20 days             90 hrs $1,080.00

March               22 days             99 hrs $1,188.00

April                  22 days             99 hrs $1,188.00

May                  21 days             94.5 hrs           $1,134.00

June                  19 hours            85.5 hrs           $1,026.00

                                                904.5 hrs         $10,854.00

End of employment: June 26, 1998.

____________________                     __________________

Jacqueline Seuthé                                  Valérie Mercier

[8]      According to Réjean Grenon, agent for the appellant, the appellant did not withhold source deductions because he was not aware of the requirements of the Act. However, the correction was made for subsequent workers.

[9]      Valérie Mercier, the worker, stated that she had been hired by the appellant acting in collaboration with his mother. She performed the duties listed in the contract and was paid $12 an hour out of a grant received from the government.

[10]     The courts have established a series of tests for determining whether a contract is a contract of service or a contract for services.

[11]     In Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal listed four tests for distinguishing between a contract for services and a contract of service, namely: control, ownership of the tools, chance of profit and risk of loss, and integration.

[12]     Without analyzing the application of each of these criteria, it must be concluded that each one applies. The evidence showed that the appellant exercised control over the worker.

[13]     The fact that the appellant was not aware of the requirements of the Act does not release him from his obligations, despite the sympathy the Court might feel for him. It must therefore be concluded that there existed a contract of service within the meaning of paragraph 5(1)(a) of the Act.

[14]     The appeal is therefore dismissed and the Minister's decision is confirmed.

Signed at Ottawa, Canada, this 27th day of March 2000.

"J.F. Somers"

D.J.T.C.C.

Case law consulted:

Attorney General of Canada v. Danielle Massicotte (F.C.A. A-99-89)

Translation certified true

on this 20th day of December 2001.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

1999-1959(EI)

BETWEEN:

PHILIPPE GRENON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeal heard on February 28, 2000, at Québec, Quebec, by

the Honourable Deputy Judge J.F. Somers

Appearances

Agent for the Appellant:                       Réjean Grenon

Counsel for the Respondent:                Simon-Nicolas Crépin

JUDGMENT

          The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 27th day of March 2000.

"J.F. Somers"

D.J.T.C.C.

Translation certified true

on this 20th day of December 2001.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]