Date: 20040204
Dockets: A-674-02
A-675-02
A-676-02
A-677-02
Citation: 2004 FCA 54
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
Docket: A-674-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
Docket: A-675-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS PETIT BONHOMME INC.
Respondent
Docket: A-676-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
Docket: A-677-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
Hearings held at Montréal, Quebec, on February 2 and 4, 2004.
Judgment from the bench at Montréal, Quebec, on February 4, 2004.
REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A.
Date: 20040204
Dockets: A-674-02
A-675-02
A-676-02
A-677-02
Citation: 2004 FCA 54
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
Docket: A-674-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
Docket: A-675-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS PETIT BONHOMME INC.
Respondent
Docket: A-676-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
Docket: A-677-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on February 4, 2004)
DÉCARY J.A.
[1] Judge Angers of the Tax Court of Canada concluded that the plaintiffs' workers - all working in the field of television program production - for the most part did not hold insurable employment within the meaning of subsection 5(1) of the Employment Insurance Act. He disposed of the four appeals before him on the basis of joint evidence and joint reasons which were especially detailed ([2003] T.C.J. No. 595 (QL)).
[2] The four applications for judicial review filed by the Minister of National Revenue were also joined for hearing in this Court. These reasons will dispose of the four applications, the original being entered in case A-674-02 and a copy thereof in cases A-675-02, A-676-02 and A-677-02.
[3] Although the question is not without difficulty, the Court is satisfied that Judge Angers correctly identified the applicable rules of law and made no palpable or overriding error in applying them (see by analogy Dynamex Canada Inc. v. Mamona, 2003 FCA 248, per Sharlow J., para. 45, and Attorney General of Canada v. Sacrey, 2003 FCA 377, para. 12).
[4] We are dealing here with a hybrid contractual situation, where certain factors favour a contract of employment (art. 2085 of the Civil Code of Quebec (C.C.Q.), and others a contract of enterprise or for services (art. 2098 C.C.Q.).
[5] Thus, for example, the agreement concluded between the Association des producteurs de film et de télévision du Québec (the APFTQ), the Association québécoise de l'industrie du disque, du spectacle et de la vidéo (the ADISQ) and the Association des professionnels(les) de la vidéo du Québec (the APVQ) is in many respects similar to the type of collective agreement that usually governs relations between an employer and an employee. However, it differs in other respects, including the freedom of the workers in question to individually negotiate their daily pay and to have themselves replaced when necessary under a so-called "goodwill" rule, the producer's obligation to take into account other commitments the worker may have contracted with other producers before setting the production date, its non-application to technicians providing their services through a commercial corporation and the right of either party to cancel the contract without penalty.
[6] In view inter alia of the provisions of the Quebec Act respecting the Professional Status and Conditions of Engagement of Performing, Recording and Film Artists (R.S.Q., c. S-32.1) and the federal Status of the Artist Act (S.C. 1992, c. 33) and in view of the certification orders made by the authorities in question, it appears that legislatures and producers and workers in the performing, recording and film field do not hesitate to regard workers in those fields as independent contractors.
[7] Pursuant to the opinions issued by this Court in Wolf v. Canada, [2002] 4 F.C. 396 (F.C.A.), the legal nature of a contract must be determined in accordance with the actual overall relationship of the parties in a constantly changing working world. The workers here are alert free-lancers who go from one producer to another and from one production to another, sometimes on a daily basis. In these circumstances, it is entirely possible to conclude that the working relationships do not have the degree of continuity, loyalty, security, subordination and integration generally associated with a contract of employment.
[8] These applications for judicial review will be dismissed, with only one set of costs.
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"Robert Décary"
J.A.
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-674-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
Applicant
and
LES PRODUCTIONS BIBI ET ZOÉ INC.
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 4, 2004
REASONS FOR JUDGMENT OF THE COURT: DÉCARY, NOËL AND NADON JJ.A.
DELIVERED FROM THE BENCH BY: DÉCARY J.A.
APPEARANCES:
Janie Payette FOR THE APPLICANTS
Stéphane Arcelin
Roch Guertin FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANTS
Deputy Attorney General of Canada
Montréal, Quebec
Roch Guertin FOR THE RESPONDENTS
Montréal, Quebec
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