Date: 19980925
Docket: 98-279-UI
BETWEEN:
ANNETTE VIGNEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
LINDA VIGNEAU
Intervener.
Reasons for Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a determination dated January 8, 1998 that the appellant's employment by her daughter Linda Vigneau during the periods from May 13 to August 3, 1996 and from May 26 to August 30, 1997 was not insurable employment because she and her daughter were not dealing with each other at arm’s length.
[2] The appellant and the payer admitted that subparagraphs 5(a) to (h) and (j) were correct; they denied subparagraphs (i), (k) and (l).
[TRANSLATION]
(a) the payer is the appellant’s daughter;
(b) the appellant’s duties involved looking after the payer’s two children (aged eight and twelve in 1997) at the payer’s home, doing house cleaning, doing washing, washing dishes and preparing lunch and dinner;
(c) she worked from 8 a.m. to 5 p.m. Monday to Friday;
(d) she received a salary of $200 gross a week;
(e) the payer worked in a fish processing plant;
(f) the payer received a salary of $297 net weekly;
(g) the payer’s spouse also had a day job;
(h) the payer worked for 20 weeks, whereas the appellant was allegedly hired for only 14 weeks;
(i) when questioned by the Human Resources Development Canada officer, the payer explained that she only employed the appellant for 14 weeks because she could no longer afford to keep her on;
(j) the appellant was paid by cheque;
(k) the payer only paid the appellant for eight weeks, rather than the alleged 14 weeks;
(l) the appellant continued providing services to the payer without pay after the period at issue.
[3] This is another case in which this Court has jurisdiction resembling judicial review.
[4] Was the Minister's discretion exercised properly and objectively? Was there any abuse or serious error in that exercise of discretion?
[5] I am of the opinion that the respondent botched his investigation believing his considerable authority placed him beyond him the reach of any intervention. It is my view that the respondent drew conclusions that were guided essentially by intuition rather than being those imposed and supported by the facts.
[6] The officer responsible for the case had a duty to seriously and objectively check all the relevant information supplied by the appellant. The allegation that "the payer only paid the appellant for eight weeks, rather than the alleged 14 weeks" clearly illustrates the extent to which the official responsible for the appellant’s case failed to make the minimum effort necessary to give her the benefit of the full and objective investigation to which she was fully entitled.
[7] Yet the appellant had supplied the paycheques corresponding to the entire period worked. The fact that copies of cheques, confirmed by bank statements, which the appellant had provided were not taken into account constitutes a serious omission which completely biased the process. This negligence led the officer to draw conclusions which in no way followed from the facts, though these were available.
[8] Consequently, the Court is of the view that the respondent did not use his discretion properly; indeed, in my opinion the exercise of discretion was tainted by gross and serious negligence consisting in the distortion of certain strategic facts and in ignoring certain fundamental evidence.
[9] The cavalier way in which the case was treated justifies my intervening to assess the evidence as a whole from the standpoint of a trial de novo.
[10] The testimony was straightforward, plausible and unassailable. It is clear from the evidence that the appellant did perform work for her daughter. The remuneration agreed on between the parties was fair, reasonable and appropriate. I believe that all the necessary components of a contract of service were present.
[11] The evidence may have raised some questions regarding the relevance of the duration of the periods of employment. Further, the appellant also admitted that she helped her daughter by occasionally keeping an eye on her children outside the work periods.
[12] Are these points sufficient to disqualify the arrangement herein as a contract of service? I do not think so: outside the periods at issue, the appellant did not look after the payer’s house, did not prepare any meals there and did not do any cleaning. Moreover, I do not think anything can be made of the fact that she occasionally had her two grandchildren over to eat at her house. I think it is important to bear in mind that the homes of the appellant and her daughter were located in proximity to each other in the same neighbourhood.
[13] It would certainly have been better if the cut-off point of the provision of services had been clearer; it would certainly also have been better if the beginning and end of the periods at issue had been better explained and justified.
[14] However, I do not think that these objections are so conclusive that the appeal should be dismissed. Genuine work was done; a fair and reasonable salary was paid; and it all took place in circumstances in which the payer had the power to control the quality of the work done.
[15] The appellant could feed or keep an eye on her grandchildren at her home outside the periods at issue without thereby disqualifying the contract of employment performed during those periods, especially as the work done was not exactly the same.
[16] I do not think Parliament intended to affect in any way the beauty and importance of the relationship between grandparents and their grandchildren by the addition of s. 3(2)(c) to the provisions of the Act.
[17] There certainly may have been abuses, artificial arrangements or even fraud in the case of these individuals, but that is in no way demonstrated by the evidence provided by the respondent, who reached his conclusion too quickly and too intuitively. The Court must decide on the evidence, the burden of proof being on the appellant. The evidence showed that a genuine contract of service had been entered into. This is clear given the plausibility of the testimony, which, as the respondent chose not to call witnesses, was the only evidence presented.
[18] For these reasons the appeal is allowed and the appellant's employment during the two periods at issue was held under a contract of service within the meaning of the Act.
Signed at Ottawa, Canada, this 25th day of September 1998.
"Alain Tardif"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 29th day of April 1999
Erich Klein, Revisor