BETWEEN:
3234339 CANADA INC. (CREDICO MARKETING INC.)
and
Hearing held at Montréal, Quebec, on September 12, 2006.
Judgment delivered at Ottawa, Ontario, on September 22, 2006.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
NADON J.A.
Date: 20060922
Docket: A-485-05
Citation: 2006 FCA 308
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
3234339 CANADA INC. (CREDICO MARKETING INC.)
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
[1] We have before us an appeal from a decision by Madam Justice Lamarre-Proulx of the Tax Court of Canada dismissing the appeal brought by the appellant against the decisions of the Minister of National Revenue (Minister) confirming those decisions.
[2] On September 27, 2004, the Minister made twenty-seven (27) decisions regarding twenty-seven (27) workers. The Minister determined that these workers were employed by the employer in insurable employment within the meaning of Employment Insurance Act, S.C. 1996, c. 23.
[3] After analyzing the submissions made by the parties to the appeal and reviewing the evidence, I am satisfied that, despite a few factual inaccuracies, the judge’s decision was supported by the evidence in the record which allowed her to determine that, in fact and in law, the workers in question were employed in insurable employment for the period at issue.
[4] The appellant’s counsel raised several arguments against the decision, some well founded but not fatal or determinative with regard to the final result. It is therefore not necessary to address all of them. Two, however, are worthy of discussion.
[5] First, the appellant’s counsel attacked the following passage found at paragraph 66 of the decision. The judge writes:
As workers in Marathon Electric (supra), as mentioned in the last paragraph of the ruling by our Court, I do not find here any characteristic of a commercial enterprise on the workers' part.
[6] Insofar as this statement by the judge would appear to suggest that a contract for services cannot exist outside a commercial business context, it would unduly and improperly limit the scope of application of this kind of contract, defined in article 2098 of the Civil Code of Quebec as a contract where the provider of services makes an undertaking to another person “to carry out physical or intellectual work or to provide a service, for a price which the client binds himself to pay”.
[7] Moreover, this statement would be in direct conflict with several decisions by our Court where the notion of a contract for services was accepted when workers were not characteristic of a commercial business. This was the case, inter alia, in Wolf v. R., 2002 FCA 96; Le Livreur Plus Inc. v. Minister of National Revenue, 2004 FCA 68; D.J. Driveway Inc. v. Canada (Minister of National Revenue), 2003 FCA 453; and Poulin v. Canada (Minister of National Revenue), 2003 FCA 50.
[8] The appellant’s counsel also attacked paragraph 68 of the decision where the judge writes as follows:
Except for one representative who, at the hearing, clearly expressed her wish with regard to her status, the others clearly made no statement. However, we can only conclude that no one challenged the decision that he is an employee, and that no one intervened in this appeal.
[9] I agree with the appellant’s counsel that there may be several reasons why the workers did not intervene in the debate between the appellant and the Minister: the indifference regarding the consequences of the Minister’s decision, the lack of financial resources to become involved in the debate before the Tax Court of Canada, the expectation of an additional benefit, the belief that the judgment rendered in their favour by the Court of Quebec, declaring them self-employed, would prevail.
[10] Contrary to the appellant’s counsel, I do not believe however that, based on the workers’ failure to intervene regarding their status, the judge inferred that the workers considered themselves to be employees or that their silence was an expression of their intention with regard to the legal status of their employment. She referred to this silence, rather, to explain her determination that she could not take into account the intention expressed by the appellant since, in her opinion, there was no evidence that the twenty-six (26) other workers shared it. She regarded it as a factor in weighing the appellant’s credibility.
[11] For these reasons, I would dismiss the appeal with costs.
“I concur.
Robert Décary J.A.”
I concur.
M. Nadon J.A.”
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-485-05
AppeAl FROM JUDGMENT DATED septembeR 15, 2005, BY THE HONOURABLE MADAM JUSTICE Louise Lamarre-Proulx OF THE TAX COURT OF Canada IN DOCKET BEARING NUMBER 2004-4725(EI).
STYLE OF CAUSE: 3234339 CANADA INC. (CREDICO MARKETING
INC.) v. MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 13, 2006
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
DATE OF REASONS: September 22, 2006
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
FOR THE APPELLANT
|
|
|
FOR THE RESPONDENT
|
Date: 20060922
Docket: A-485-05
Ottawa, Ontario, September 22, 2006
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
3234339 CANADA INC. (CREDICO MARKETING INC.)
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
JUDGMENT
The appeal is dismissed with costs.
“Robert Décary”
J.A.
Certified true translation
Kelley A. Harvey, BCL, LLB