Date: 20010628
Docket: 2000-598-EI
BETWEEN:
SERVICES TECHNIQUES GÉONORDIC INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2000-599-EI
DENIS CHÉNARD,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2000-600-EI
PETER BAMBIC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for judgment
Charron, D.J.T.C.C.
[1] These appeals were heard on common evidence at Montréal, Quebec, on February 16, 2001, to determine whether the decisions by the Minister of National Revenue (the "Minister") that the employment of Denis Chénard during the period from January 1997 to February 26, 1999, and of Peter Bambic during the period from June 1996 to February 26, 1999, with Services Techniques Géonordic Inc., the payer, was insurable within the meaning of the Employment Insurance Act (the "Act"), are correct.
[2] By letters dated November 16, 1999, the Minister informed the appellants that the employment in question was insurable on the ground that it met the requirements for a contract of service and that there was an employer-employee relationship between them and the payer.
Statement of Facts
[3] The facts on which the Minister relied in making his decisions are set out in paragraph 8 of each Reply to the Notice of Appeal, as follows:
Appeal No. 2000-598(EI) - Services Techniques Géonordic Inc.
[TRANSLATION]
(a) The appellant, a corporation that has been operating since 1994, is a mining exploration project management business carried on in Quebec. (admitted)
(b) The appellant specializes in the metallurgical aspects of exploration, in particular the areas of ore content and size of deposits. (denied)
(c) The appellant goes to sites designated by public corporations, conducts its research and reports on that research to the requesting public corporations. (admitted)
(d) The appellant is operated in cyclical fashion, essentially in the summer, because exploration is mainly carried out in the North. (denied)
(e) The main tools and equipment of the business are the camp equipment, electronic hardware (computers) and field equipment (vehicles). (admitted)
(f) During the periods in issue, the appellant employed the workers Denis Chénard, geologist and member of the Ordre des Ingénieurs du Québec (Quebec association of engineers), and Peter Bambic, lithogeochemist. (denied)
(g) The workers were hired by the appellant under oral agreements. (denied)
(h) The workers went to the exploration sites designated by the appellant; the clients were the appellant's, not the workers'. (denied)
(i) On the sites, the workers worked as experts in their specialties; they supervised the work by acting as project managers for the appellant. (denied)
(j) The workers themselves had to provide services to the appellant but were required to comply with the appellant's instructions and meet the timetable set by the appellant. (denied)
(k) The appellant did not keep a record of the workers' hours of work; the workers were remunerated by the appellant according to a daily rate. (admitted)
(l) The workers billed the appellant in accordance with the number of days worked; the workers were reimbursed by the appellant for the use of their computers and for their meals, photocopies, telephone, gasoline and other expenses. (denied)
(m) The workers had to make frequent oral and written reports to the appellant on the progress of the work. (denied)
(n) The workers used the appellant's equipment; when they had to use their own tools, they received compensation from the appellant. (denied)
(o) The workers incurred no financial risk; they were remunerated for the number of days they worked and all their expenses were reimbursed by the appellant. (denied)
Appeal No. 2000-599(EI) - Denis Chénard
[TRANSLATION]
(a) The payer, a corporation that has been operating since 1994, is a mining exploration project management business carried on in Quebec. (admitted)
(b) The payer specializes in the metallurgical aspects of exploration, in particular the areas of ore content and size of deposits. (denied)
(c) The payer goes to sites designated by public corporations, conducts its research and reports on that research to the requesting public corporations. (admitted)
(d) The payer is operated in cyclical fashion, essentially in the summer, because exploration is mainly carried out in the North. (denied)
(e) The main tools and equipment of the payer's business are the camp equipment, electronic hardware (computers) and field equipment (vehicles). (admitted)
(f) The appellant has a bachelor's degree in geological engineering from the Université du Québec à Chicoutimi and is a member of the Ordre des Ingénieurs du Québec (Quebec association of engineers). (admitted)
(g) The appellant provided services to the payer starting in mid- or late January 1997. (admitted)
(h) The appellant went to the premises of clients designated by the payer and was responsible for conducting a mineral inventory on properties and assessing the potential of deposits. (admitted)
(i) More specifically, the appellant had to prepare a description of the rocks, determine drilling sites, take samples for analysis and draft a report for the purpose of recommending potential work. (admitted)
(j) The appellant's work was done in the field at (locations specified by the payer), on the payer's premises and occasionally in his own office. (denied)
(k) The appellant had no specific schedule to meet; he was remunerated by the payer on the basis of a daily billing, not by the hour. (admitted)
(l) The payer supplied the camp equipment and reimbursed all expenses (computer, meals, photocopies, telephone, gasoline and other expenses) incurred by the appellant in his work. (admitted)
(m) It could happen that the appellant used some of his own tools, such as his computer, a geologist's hammer and his truck in his work for the payer, but he received compensation from the payer for their use. (denied)
(n) During the period in issue, the appellant rendered services to the payer as a professional in his specialty; he provided services to the payer's clients under the payer's supervision and control. (denied)
Appeal No. 2000-600(EI) - Peter Bambic
[TRANSLATION]
(a) The payer, a corporation that has been operating since 1994, is a mining exploration project management business carried on in Quebec. (admitted)
(b) The payer specializes in the metallurgical aspects of exploration, in particular the areas of ore content and size of deposits. (denied)
(c) The payer goes to sites designated by public corporations, conducts its research and reports on that research to the requesting public corporations. (admitted)
(d) The payer is operated in cyclical fashion, essentially in the summer, because exploration is mainly carried out in the North. (denied)
(e) The main tools and equipment of the payer's business are the camp equipment, electronic hardware (computers) and field equipment (vehicles). (admitted)
(f) The appellant has a master's degree in mining exploration from McGill University. (admitted)
(g) The appellant has provided services to the payer since June 1996. (admitted)
(h) The appellant went to the premises of clients designated by the payer and did rock chemistry computer processing; he analyzed changes in the chemistry of rocks using computers. (admitted)
(i) The appellant's work was done essentially in the field (at locations specified by the payer) and occasionally in his own office. (denied)
(j) The appellant had to make frequent oral and written reports to the payer and the payer's clients on the progress of his work. (denied)
(k) The appellant had no specific schedule to meet; no record was kept of his hours of work by the payer, which remunerated him upon submission of invoices. (admitted)
(l) The appellant had to personally perform the work required by the payer because the payer had hired him for his knowledge and his expertise in his field of specialization. (admitted)
(m) The payer reimbursed all expenses (computers, meals, photocopies, telephone, gasoline and other expenses) incurred by the appellant in his work. (denied)
(n) It could happen that the appellant used some of his own tools, such as his computers, his truck, his snowmobile, his office, etc., in his work for the payer, but he received compensation from the payer for their use. (denied)
(o) During the period in issue, the appellant rendered services to the payer as a professional in his specialty; he provided services to the payer's clients under the payer's supervision and control. (denied)
[4] The appellants admitted that all the subparagraphs of paragraph 8 of each Reply to the Notice of Appeal were true, except those that they denied, as indicated in parentheses at the end of each subparagraph.
Denis Chénard's Testimony
[5] Mr. Chénard is a geological engineer and member of the Ordre des Ingénieurs du Québec (Quebec association of engineers), to which he has paid registration fees ever since he has been working for himself as a geological consultant. Prior to January 1997, he worked as an employee for Mine Aurizon. He has since founded a registered company under the firm name Datac Géo-Conseil enrg., having a place of business at 289 Chemin Val-du-Repos, Val-Senneville, Quebec. Mr. Chénard specializes in the evaluation of copper, zinc, gold and other mineral deposits, which work he did for Services Techniques Géonordic Inc., the payer, and has carried out specific mandates for Exploration Boréal and Mines d'or Virginia without a written contract. The payer assigned him specific mandates and allowed him to accept others. The payer, for its part, had no obligation to provide work. Mr. Chénard set his work schedules and his fees and determined his work methods. He was free to accept or turn down any mandate offered to him. He was paid by the day, receiving payment every two or three weeks or monthly, in accordance with the requirements of the invoices sent to the payer, Mines d'or Virginia or Exploration Boréal (Exhibit A-1) and upon submission of reports to the clients concerned (Exhibit A-2). The field work was performed on the clients' sites. Most of the time, the reports were drafted at Datac Géo-Conseil enr.'s office, but this was also done at the payer's office whenever it was necessary to facilitate meetings with the drawing technicians. The equipment such as computers, the necessary software to perform the work, geologist's hammers, backpacks, GPS units, stone saws, chainsaws and the truck were acquired by the appellant Chénard at a cost of approximately $60,000; he bore the maintenance and insurance costs with respect thereto. The larger equipment, such as camp equipment, drilling machines and motor boats, was supplied by the payer. Mr. Chénard was entitled to no fringe benefits and no sick leave or vacation leave. He had to pay his office maintenance expenses and electricity, heating and training expenses. He also had to pay the GST and QST. It is impossible for geological engineers to acquire the large equipment because it is too costly. The truck was rented on a per-kilometer basis ($0.40) and the computer equipment was rented at $10 a day. Mr. Chénard earned $80,000 a year, 90 percent of which came from the payer. He could not carry out alone the type of mandate he was given. His meals were provided to him when he was in the field. A 5,000- or 10,000-meter drilling program could cost from $100,000 to $200,000.
Peter Bambic's Testimony
[6] Mr. Bambic is a geological engineer and resides at 105 Rue Cotnoir, Évain, Quebec. He is a member of the Association des géologues et géophysiciens du Québec (Quebec association of geologists and geophysicists) and of the Geological Association of Canada, to both of which he pays dues. He is also a lithography specialist and has worked for Barrett Gold and Inco. From 1996 to 1999, he worked for the payer, Virginia, Ormico, Osisco, Gordy Enricson and the Cree Nation of Wemindji. He never had a contract with the payer, but obtained mandates from that company. He was free to do as he wished, when he wished, and the payer had no obligation to provide him with work. Mr. Bambic set his remuneration at $350 a day, which he reduced to $300 to please such a big client, but soon realized that was a mistake. He now asks for fixed remuneration payable on receipt of an invoice. Mr. Bambic did not need to visit a site: he relied on what he saw and set a reasonable price. He then had to make ad hoc reports to the clients of Boréal or Virginia, but there was no such requirement with respect to the payer. In the payer's case, a report at the end of the project was sufficient. Mr. Bambic supplied a computer, a desk, a truck, a snowmobile, camping equipment, tents, walkie-talkies, stoves, and power saws worth approximately $1,000. He used all kinds of things that belonged to him and was reimbursed his expenses for the use of his truck on a per-kilometer basis. Only when he incurred hotel and restaurant expenses did he request reimbursement from his client, but he never claimed anything if he camped and used his own equipment. He asked for no fringe benefits from the payer and had neither sick leave nor vacation leave. He himself paid for his wage loss insurance, training courses, life insurance and liability insurance. He had no employees or costly machinery, and had to pay any QST and GST.
Jean-François Ouellette's Testimony
[7] Mr. Ouellette, a geologist, like the two appellants, is the president of the payer and resides at 1112 Ranges 9 and 10 East in Bellecombe, Quebec. The payer is a mining exploration company which performs work for companies listed on the stock exchange with a view to finding metalliferous deposits of gold, copper, zinc and other metals. Seventy percent of that work is done in northern Quebec, in areas where there are often no roads and that are accessible only by air. The payer employs approximately 10 to 35 employees, depending on the season. From June 1996 to February 1999, the company was overwhelmed with work and called on Messrs. Chénard and Bambic because they are mining and mining exploration specialists. They have special skills and the company cannot afford to employ such people year-round. Dealings with them take place orally with respect to both salary and the work to be done. The payer had no obligation to provide these consultants with work. They were completely free to accept or to refuse any mandate for any reason whatever in order to protect the aura of secrecy surrounding them. These persons controlled their schedules themselves; they were professionals who made their own decisions and determined themselves their work methods. They accepted no control whatever. Their remuneration was the result of a common agreement reached following negotiations. The consultants supplied their personal equipment, their computer equipment, their vehicles and other such things. Large items such as helicopters and camp equipment were provided by the payer because they were too costly: in most cases, it costs $25,000 to $40,000 to get set up at a site and the payer assumes those costs. The payer also provided its employees with all their work equipment, from pencils to vehicles (a truck, snowmobiles and so on). Messrs. Chénard and Bambic were responsible for maintenance of their employees' tools. The relationship between the payer and its employees was as provided for in a written contract which stipulates their hours of work, leave days, fringe benefits and wages and includes an undertaking of confidentiality. Between the consultants and the payer, there was no agreement on fringe benefits, sick leave and vacation, nor was there any training plan. The payer paid for its employees' training courses, leave and travel. The consultants themselves were in control of their time when they were in the forest. Similarly, the consultants' employees were supervised by the consultants themselves and they worked seven or eight hours a day. All meals were provided at no cost to the consultants' employees and to the payer's employees at the client's expense. Messrs. Chénard and Bambic were paid by the payer on submission of an invoice.
Analysis of the Facts in Relation to the Act
[8] The case law has established four essential tests for recognizing a contract of employment. The decisive case in this area is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. The tests in question are as follows: (1) control, (2) ownership of the tools, (3) chance of profit and risk of loss, and (4) the degree of integration, this last test having been added by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553. This list is not exhaustive however.
[9] The evidence showed that the work performed by the appellants was done under the payer's direction and that there was no relationship of subordination between them. The payer managed the business and owned the machines and tools necessary for its operation. The payer alone could realize profits or incur losses in the operation of its business; the appellants could not as they received only a fixed fee. Lastly, the appellants performed their work in the field and were well integrated into the business. I therefore conclude for the following reasons that the payer operated a business and that the appellants were employed by it during the periods in issue.
[10] Mr. Chénard is a geological engineer and a member of the Ordre des Ingénieurs du Québec (Quebec association of engineers), to which he pays dues. He is a specialist in the evaluation of mineral deposits and carried out specific mandates for the payer, Boréal and Virginia, without a written contract. He was permitted to accept other mandates. He set his hours of work and his fees and determined his work methods. He was remunerated upon submission of his invoices and a final report to the clients concerned. The field work was performed on the clients' land. The equipment such as computers and the necessary software, geologist's hammers, backpacks, stone saws, chainsaws, the truck and other tools were acquired by Mr. Chénard at a cost of $60,000. He was entitled to no fringe benefits, sick leave or vacation. He paid his office expenses and had to pay the GST and QST. The large equipment and the truck were leased and the rental was paid by Mr. Chénard.
[11] Mr. Bambic is likewise a geological engineer and a lithography specialist as well. He has also worked for Barrett Gold, Inco and the payer, without a written contract. He was free to do what he wanted, and the payer had no obligation to provide him with work. Mr. Bambic set his remuneration at $300 a day and claimed payment by submitting an invoice. He did not need to visit a site in advance: he set a price which he felt was reasonable and, with the exception of a final report, never made any report to the payer. He supplied his computer, a truck, a snowmobile, camping equipment, tents, stoves, walkie-talkies, and power saws worth $1,000 and was reimbursed his expenses for the use of the truck. He was also reimbursed his hotel and restaurant expenses, if any. He was not entitled to any fringe benefits, sick leave or vacation leave. He paid his wage loss insurance, life insurance and liability insurance premiums, his training course costs and any GST and QST. He had no employees.
[12] In the Court's view, the appellants Chénard and Bambic were self-employed workers; therefore, the appeals are allowed and the Minister's decisions vacated.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
COURT FILE NO.: 2000-598(EI)
STYLE OF CAUSE: Services Techniques Géonordic Inc. & M.N.R.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 31, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge G. Charron
DATE OF JUDGMENT: June 28, 2001
APPEARANCES:
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
COUNSEL OF RECORD:
For the Appellant:
Name: Nancy Dubuc
Firm: Heenan Blaikie
Montréal, Quebec
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 2000-599(EI)
STYLE OF CAUSE: Denis Chénard and M.N.R.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 31, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge G. Charron
DATE OF JUDGMENT: June 28, 2001
APPEARANCES:
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
COUNSEL OF RECORD:
For the Appellant:
Name: Nancy Dubuc
Firm: Heenan Blaikie
Montréal, Quebec
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 2000-600(EI)
STYLE OF CAUSE: Peter Bambic and M.N.R.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 31, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge G. Charron
DATE OF JUDGMENT: June 28, 2001
APPEARANCES:
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
COUNSEL OF RECORD:
For the Appellant:
Name: Nancy Dubuc
Firm: Heenan Blaikie
Montréal, Quebec
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-598(EI)
BETWEEN:
SERVICES TECHNIQUES GÉONORDIC INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Denis Chénard (2000-599(EI)) and Peter Bambic (2000-600(EI)) on
February 16, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appeal is allowed and the Minister's decision vacated in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" » |
D.J.T.C.C.
2000-599(EI)
BETWEEN:
DENIS CHÉNARD,
appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Services Techniques Géonordic Inc. (2000-598(EI)) and Peter Bambic (2000-600(EI)) on February 16, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appeal is allowed and the Minister's decision vacated in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
2000-600(EI)
BETWEEN:
PETER BAMBIC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Services Techniques Géonordic Inc. (2000-598(EI)) and Denis Chénard (2000-599(EI)) on February 16, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
Counsel for the Appellant: Nancy Dubuc
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appeal is allowed and the Minister's decision vacated in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.