Date: 20000412
Docket: 1999-232-EI
BETWEEN:
HASSAN KASSI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1]
This is an appeal from a determination by the respondent that the
relationship between the appellant and the Université du
Québec à Trois-Rivières in 1994 was not an
employer-employee relationship, but rather a teacher-student
relationship.
[2]
The appellant testified in support of his appeal and called as
his witnesses Alain Tessier, a research assistant at the
Université du Québec, and Gaëtan Munger,
also a research assistant at the Université du
Québec à Trois-Rivières.
[3]
The testimony revealed that the appellant had been connected with
the Université du Québec à
Trois-Rivières for a number of years. By 1994, he had
completed there the courses and experiments there that would
enable him to write his doctoral thesis.
[4]
At the start of his doctoral studies, the appellant's thesis
director was a certain Roger Leblanc. In 1994,
Mr. Leblanc left Canada and was working as the head of a
laboratory in Miami.
[5]
In view of the distance factor, the appellant considerably scaled
back and even cut off his relationship with his thesis director.
According to the evidence, this estrangement was of little
significance since all the work and experiments required to
prepare his thesis had been conducted and completed by the
appellant prior to 1994.
[6]
The appellant testified that, having acquired the relevant
knowledge and experience, he had worked for the Université
du Québec starting in 1994, but not doing work necessary
and useful for his eventual thesis; rather, he performed
practical laboratory maintenance, cleaning and preparation work
for the various students who used the laboratory. Witnesses
Tessier and Munger stated that the appellant had the
qualifications and knowledge to help students and do the very
specific maintenance and cleaning work required for this type of
laboratory.
[7]
Having completed the laboratory work and the various experiments
he needed in order to write his thesis, the appellant became an
important resource person for the students engaged in specialized
postgraduate work.
[8]
The appellant submitted that the remuneration of $12,000 which he
received from the Université du Québec à
Trois-Rivières was solely for the various maintenance,
cleaning, washing and equipment preparation duties he had
performed. At three days a week, this was equivalent to a wage of
$16 an hour.
[9]
This testimony was moreover confirmed, at least in part, by the
witness Munger, who testified that he had been responsible for
the laboratory and had ensured that the various maintenance,
washing and cleaning jobs done by the appellant were properly
performed.
[10] The
appellant also said that he had neither applied for nor obtained
a scholarship in 1994. He testified that the $12,000 was
essentially remuneration for actual work performed in the
laboratory, and he added each time that the work in question had
nothing at all to do with the studies and experiments preceding
the writing of his thesis. He also submitted that, in 1994, he
had completed the experiment stage and was essentially in the
writing phase.
[11] In
matters of insurability, each case is judged on its own merits.
It is very difficult to find decisions in which the facts are
absolutely identical. The Court must decide based on the evidence
brought before it. It cannot assume or take for granted certain
theories or customary ways of proceeding in comparable or similar
subjects or matters. Although the case law states very clearly
that a genuine contract of service is inconsistent with a
teacher-student relationship, the teacher-student relationship
must be proven; it cannot be assumed.
[12] Under
this case law, it is not sufficient that such a teacher-student
relationship be simply alleged in order for the Court to conclude
that employment is not insurable. It is essential that the facts
show that such a relationship existed over the period covered by
the determination.
[13] In the
instant case, the evidence essentially concerned 1994. However,
Professor Leblanc was no longer in Trois-Rivières,
which discredits, at least in part, the respondent's argument
that the relationship was not an employer-employee relationship,
but rather a teacher-student relationship.
[14] The
burden of proof was of course on the appellant. To succeed, he
had to show on a preponderance of evidence that he had performed
work under the control and supervision of the payer or of one of
its representatives and that he received remuneration.
[15] The
appellant did in fact show on a preponderance of evidence that,
in 1994, he performed maintenance and cleaning work in a
laboratory in return for which he received remuneration set at
$16 an hour. This was corroborated by two credible witnesses,
namely Messrs. Tessier and Munger. What is more, the witness
Munger testified that he had played a role which placed him in
authority with respect to the quality of the work performed by
the appellant.
[16] The Court
is bound by the evidence adduced. In this regard, the witnesses
testified in a coherent manner and I found the explanations
provided to be plausible and reasonable. Consequently, I must
conclude that the evidence adduced by the appellant and his
witnesses shows that the appellant indeed performed a contract of
service during 1994.
Signed at Ottawa, Canada, this 12th day of April 2000.
"Alain Tardif"
J.T.C.C.
Translation certified true on this 28th day of February
2001.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-232(EI)
BETWEEN:
HASSAN KASSI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on March 13, 2000, at Shawinigan,
Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Alain Gareau
JUDGMENT
The appeal is allowed and the Minister's decision vacated in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 12th day of April 2000.
J.T.C.C.
Translation certified true
on this 28th day of February 2001.
Erich Klein, Revisor
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