Date: 19991216
Docket: 98-369-UI
BETWEEN:
MARTINE GARNEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] The appellant is appealing from a decision made by the Minister of National Revenue (the "Minister") under paragraph 3(1)(a) of the Unemployment Insurance Act (the "Act") for the periods from May 15 to August 25, 1995, and from April 1 to June 22, 1996. The question is whether, during the periods at issue, the appellant held insurable employment with Club nautique Roberval Inc.
[2] The facts on which the Minister relied in making his decision are set out in paragraph 5 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) the payer [Club nautique Roberval Inc.] was a non-profit corporation, incorporated some twenty years ago;
(b) the payer operated a marina and a restaurant in Roberval;
(c) the payer's operations were carried on during the period from the beginning of May to the beginning of October each year;
(d) during the periods at issue, the periods worked by the appellant did not correspond to the entire duration of the payer's operations;
(e) in 1995, the appellant had been hired as a secretary/bookkeeper and restaurant supervisor;
(f) the appellant did not have an office on the payer's business premises; the appellant's office was located in her home;
(g) in 1995, the appellant went to the marina to check on the restaurant's employees between 10:30 a.m. and 1:30 p.m.;
(h) in 1995, the appellant was paid $13 an hour;
(i) in 1996, the payer no longer operated the restaurant;
(j) in 1996, the appellant had signed a contract with the payer entitling her to be paid $15 an hour, to a maximum of $5,900, for keeping the books and accounts;
(k) in 1996, the appellant worked only at home;
(l) the payer did not have exclusive use of the appellant's services;
(m) during the periods at issue, the appellant provided accounting services to another employer, 9010-8150 Québec Inc., which operated a restaurant-pub;
(n) during the periods at issue, the appellant also provided some accounting services to the Bec Fin restaurant;
(o) the appellant supplied her own tools, that is, her telephone, her telephone answering machine, her computer, her vehicle and her office;
(p) the appellant was not reimbursed by the payer for her expenses;
(q) the appellant received no instructions from the payer;
(r) the appellant set her own work schedule;
(s) the appellant could work at night after she had finished her household chores;
(t) in 1997, she performed the same duties for the payer under a contract for personal services.
[3] Réal Labrecque and the appellant testified in this case. Mr. Labrecque is head of technical services and supplies at the Centre de réadaptation en déficience intellectuelle du Saguenay-Lac St-Jean. He was president of Club nautique Roberval Inc. during 1993-1994 and 1994-1995 and treasurer in 1995-1996. It was during his tenure as chairman of the board of directors of Club nautique Roberval Inc. that the board hired the appellant.
[4] With respect to the various allegations in paragraph 5 of the Reply, subparagraph 5(a) was admitted. With respect to subparagraph 5(b), the restaurant was not operated by the payer in 1996; it was operated as a concession. Subparagraph 5(c) was admitted. With respect to subparagraph 5(d), the appellant and Mr. Labrecque said that the periods worked corresponded to the payer's busiest period. Subparagraph 5(e) was admitted. With respect to subparagraph (f), it is true that the appellant's computer was at her home and it was there that she entered the data. Every day in 1995, she checked the reports of the marina employees and then entered them in the computer. Subparagraph 5(j) was admitted, as were (h) through (o). With respect to subparagraph 5(p), the appellant did not have to provide paper or ink for the computer and the printer. These supplies were purchased by the Club. The Club purchased everything required in the way of stationery. Subparagraph (q) was denied and subparagraph (r) was admitted with respect to the bookkeeping, but not with respect to the restaurant for 1995. While the appellant agreed that, for 1995, she set her work schedule for the bookkeeping duties, she still had to produce the required weekly and monthly reports. Subparagraph (s) was admitted, as was subparagraph (t).
[5] In 1995, the appellant took care of management and the accounts. Her work consisted in setting up a good accounting system, improving the restaurant's image, promoting the marina and supervising the staff. Her immediate supervisor was the board of directors, but primarily Mr. Labrecque.
[6] Along with the board of directors, she participated in employee selection. She was the one who acted as the intermediary between the employees and the board of directors. There could be as many as 10 employees. There were the restaurant employees and the employees of the Club nautique itself. The marina employees were usually students. They wrote their reports and the appellant checked them. She had a certain degree of disciplinary authority in the sense that, if there was a complaint against one of the employees, it was she who handled it and noted it down. She ran the daily errands required for the restaurant and managed the restaurant's activities, including those of its employees.
[7] The employer's control over the appellant was exercised, in 1995 at least, by the fact that the appellant came to the workplace every day and managed the activities there. She had to report on them to her employer. Mr. Labrecque explained that he saw the appellant several times a week and that they frequently telephoned one another in the evening regarding the Club's affairs.
[8] According to Mr. Labrecque, the busiest time for the Club began on the St. Jean Baptiste holiday and continued until the crossing of Lac St-Jean event, which takes place on the last Saturday or Sunday in July. The Club's boat excursions are generally made towards the last week of September.
[9] In 1996, the work changed. The Club's restaurant was again operated as a concession. The appellant no longer supervised the Club's employees. Her work apparently consisted of transferring to the Club the accounting data that she had compiled in the previous years. She may have done the monthly reports as well, but this is unclear since, in 1997, her services seem to have been required again because the 1996 accounts were not kept properly. In 1996, the appellant was certainly free to set her schedule as she saw fit.
Analysis
[10] The requirement that the appellant be present at the workplace every day, her role as the employees' supervisor and the almost daily reports that she had to make to the Club lead to the conclusion that, from a legal standpoint, she was in an employment situation in 1995. With respect to 1996, it appears fairly clear that she was not an employee and that her legal relationship with the Club was based on a contract for services and not a contract of service.
[11] The appeal is accordingly allowed for 1995 and dismissed for 1996.
Signed at Ottawa, Canada, this 16th day of December 1999.
[OFFICIAL ENGLISH TRANSLATION]
"Louise Lamarre Proulx"
J.T.C.C.