Scugog (Township) v. M.N.R., docket 1999-4542-EI

Date: 20000425

Dockets: 1999-4542-EI; 1999-4543-CPP

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF SCUGOG,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Weisman, D.J.T.C.C.

[1] The Township of Scugog appeals a determination by the Respondent that three members of its fire department were employed under contracts of service from January 1, 1998 to March 12, 1999 and were in insurable and pensionable employment within the meaning of paragraph 5(1)(a) of the Employment Insurance Act (the "Act")[1] and paragraph 6(1)(a) of the Canada Pension Plan (the "Plan")[2].

[2] The three men in question David Ballingall, Robert Gonnermann, and Kevin Balser are all volunteer firefighters. They receive $19.28 per hour for attending emergency calls and $12.00 per hour for training sessions. They are also entitled to 4 percent of their pay in lieu of vacation, life insurance coverage, and short-term disability benefits. While they must attend at least 60 percent of the weekly training sessions offered, they are not obliged to attend any given emergency calls. This is because volunteer firefighters earn modest amounts from the Township, and of necessity must have other sources of income. It is therefore understood that they may be otherwise engaged and unable to answer emergency calls at any given time.

[3] The law seems fairly well settled that volunteer firefighters such as the three men in question are not in insurable and pensionable employment because:

1. They are not employed under contracts of service. The necessary control element is absent since they need not respond to any particular emergency call.[3]

2. They are in excluded employment under subsection 7(e) of the Employment Insurance Regulations[4] which provides 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; and"[5]

[4] Since a majority of a firefighter's duties involve rescue operations and volunteer firefighters are not "regularly employed"[6] by the Township for that purpose, it has been held that they are in excluded employment.[7]

[5] A complication in these appeals is that the three men in question have also been appointed officers of the Appellant's fire department in recognition of their many years of service and experience in the field. David Ballingall with 26 years of service has obtained the position of District Chief; Robert Gonnermann with 22 years has achieved the rank of Deputy Chief; and Kevin Balser with 12 years holds the office of Captain and Chief Fire Prevention Officer. All three have administrative duties such as preparing reports, recording firefighters' hours of work, setting schedules, managing the Appellant's two fire stations, and servicing its fire-fighting equipment. For these administrative services Ballingall and Gonnermann are each paid an annual salary of $5,150.00 while Balser receives $3,850.00 yearly.

[6] The Appellant freely acknowledges that these three men are all in insurable and pensionable employment in their capacity as officers. The Respondent, however, contends that there is no evidence of there being two separate contracts between each man and the Township. They are therefore in insurable and pensionable employment with reference to both their administrative and their volunteer fire-fighting duties.

[7] In my view, the Respondent's argument fails to recognize that there is no contract of service at all between the Appellant and its volunteer firefighters, and that volunteer rescue operations are excluded from insurable employment in any event. A volunteer firefighter's employment does not change its character just because there is, superimposed over it, a contract of service which governs that individual's relationship with the Appellant as an officer of its fire-fighting company.

[8] I find that the three men in question were in insurable and pensionable employment under contracts of service with the Appellant with reference only to their positions as officers of the fire department and not in their employment with the Appellant as volunteer firefighters.

[9] The appeals will be allowed and the determination of the Minister varied accordingly under paragraph 103(3)(a) of the Act and subsection 28(2) of the Plan.

Signed at Toronto, Ontario, this 25th day of April 2000.

"N. Weisman"

D.J.T.C.C.