Date: 19981203
Docket: 97-1803-UI; 97-1804-UI; 97-1805-UI
BETWEEN:
NORMAND BERTHIAUME,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] These appeals were heard on common evidence. The appellant is appealing determinations by the Minister of National Revenue (the "Minister") that he did not hold insurable employment within the meaning of paragraph 3(2)(c) of the Unemployment Insurance Act and paragraph 5(2)(i) and subsection 5(3) of the Employment Insurance Act (the "Act") during the periods from December 14, 1992 to February 12, 1993, from July 5 to October 8, 1993, from May 9 to July 29, 1994, from September 5 to October 28, 1994, from January 9 to March 3, 1995, from June 26 to September 29, 1995 and from May 13 to August 30, 1996.
[2] In making his decision regarding appeal No. 97-1803(UI), the Minister relied on the facts set out in paragraph 9 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) The payer was incorporated on May 1, 1990 under the name "Ferme Normand Berthiaume & Fils" and its corporate name was changed to "Lait Porc M.C. Inc." on March 25, 1994.
(b) The appellant operated the family farm under his own name, "Ferme Normand Berthiaume", from 1955 until the date of the incorporation.
(c) When the payer was incorporated, the voting shares were distributed as follows:
- The appellant held 60 percent of the shares
- Mario Berthiaume held 20 percent of the shares
- Marco Berthiaume held 20 percent of the shares.
Mario and Marco are the appellant's sons.
(d) On July 27, 1990, the appellant decided to "pass the torch on to his sons" and he sold the 60 percent of the shares he held in the payer.
(e) An agreement was signed between the appellant and his three sons and the new distribution of the payer's voting shares was then as follows:
- Cécilien held 12,000 shares or 33 1/3 percent
- Mario held 12,000 shares or 33 1/3 percent
- Marco held 12,000 shares or 33 1/3 percent.
(f) On the same date, July 27, 1997, 14,000 Class A shares held by the appellant were transferred to Class C non-voting shares, still in the appellant's name.
(g) The appellant sold all his shares to the payer (to his sons) for $400,000 (he estimated the farm's value at a minimum of $1,000,000).
(h) On July 27, 1990, the payer paid the appellant $200,000 and undertook to redeem all the Class C shares which he held over a 10-year period.
(i) The agreement between the appellant and the payer specified that the payer would retain the appellant's services for 20 consecutive weeks a year for a period of 10 years, commencing in 1991.
(j) The agreement specified that the appellant would receive fixed remuneration of $9,884 a year over the following 10 years ($494.20 a week).
(k) On April 16, 1991, the appellant's sons founded the company "Porcs S.B. Inc." whose activities, based on a neighbouring range in St-Elzéar, were integrated with those of the farm.
(l) On October 3, 1994, the appellant's sons formed a third business under the trade name "Via Porc Inc." whose activities, based at St-Isidore, were integrated with those of the farm.
(m) During the periods at issue, the appellant completed his 20 consecutive weeks of work, being remunerated by the payer, but also by his sons' other two businesses (related businesses).
(n) Since 1991, the appellant has thus rendered services to his sons' various businesses, including the payer, in compliance with the agreement between them.
(o) The appellant often worked alone without having to meet a work schedule.
(p) The appellant received fixed remuneration without the payer exercising any form of control whatever over his work or the number of hours actually worked.
(q) The appellant was "remunerated" by direct deposit each week for 20 consecutive weeks.
(r) The appellant sold his farm to his sons and the facts show that the alleged employment contract formed an integral part of the contract of sale entered into by the parties.
[3] The Replies in appeals 97-1804(UI) and 97-1805(UI) are not different from the above, except that the names of the employers vary, as may be seen from the following paragraph. The appellant had a non-arm's-length relationship with each of the employers.
[4] Paragraphs 22 and 22 A to 22 G of the Notice of Appeal describe the appellant's duties as follows:
[TRANSLATION]
22. The duties performed by the appellant during these seven periods of employment will be clarified at a later date or at the hearing.
22A. During the period from December 14, 1992 to February 12, 1993 (Ferme Normand Berthiaume & Fils Inc.), the appellant performed, in particular, the following duties:
(from December 14 to 31, 1992)
- Construction of a building for whey
The duties were to prepare the footings, foundation, walls and roof. The building is 15 feet long by seven feet wide. The duties were supervised by Cécilien, who gave the appellant the plan and indicated the places where he could pick up materials. The appellant performed the duties alone from 8:00 a.m. to 6:00 p.m., that is approximately 45 hours a week;
- Snow removal and machinery maintenance
(from January 4 to 25, 1993)
- Repairing and refitting gestation no. 90
The duties were to break up the cement of the water troughs, dismantle the old gestation cages (cut with torches and welders), pour cement and bridge the manure gutter, assemble 50 gestation cages and install the water and the air intake. The duties were supervised by Cécilien and the appellant was assisted from time to time by other employees of the payer. The appellant's work weeks were approximately 45 hours;
- Snow removal and machinery maintenance
(from January 25 to February 12, 1993)
- Repairs in the cow barn (expand stalls and build the office)
The duties were to break up the concrete of the cow barn floor, install formwork on the gutters, dismantle and move the existing stalls, reinstall the plumbing and water bowls, move the animals, pour the cement, put in the office floor and the partitions in the cow barn. The duties were supervised by Mario and Marco, who helped the appellant perform the said duties. The appellant's work weeks were approximately 45 hours;
- Snow removal and machinery maintenance.
22B. During the period from July 5 to October 8, 1993 (Porc S.B. Inc.), the appellant performed, in particular, the following duties:
During this period, the payer built a hog barn 207 feet long by 40 feet wide, a maternity area 62 feet by 36 feet and an electrical room 20 feet by 20 feet. The building contractor Guy Turmel Inc. did the construction. The appellant worked as a labourer with the contractor. He excavated using the payer's tractors and, among other things, brought in any missing materials. Over a two-week period, the appellant spread manure for the payer. The appellant's work was supervised by Cécilien and Guy Turmel Inc.
22C. During the period from May 9 to July 29, 1994 (Lait Porc M.C. Inc.), the appellant performed, in particular, the following duties:
- Construction of a maternity section:
The appellant's duties were to break up the cement in the existing maternity area, fill with gravel, do the formwork for the foundation, install the cages and air intakes, do the plumbing, partitions, painting and excavation. The appellant worked with a worker named Normand Lachance and Mr. Lachance's sons. Cécilien supervised the work. The said maternity section is 45 feet long by 40 feet wide with a corridor 70 feet long by 4 feet wide.
22D. During the period from September 5 to October 28, 1994 (Porc S.B. Inc.), the appellant performed, in particular, the following duties:
Insulating the plumbing of the 14 birthing rooms and 240 cages, installing protective vinyl near the cages, emptying the tanks for the winter, changing the fixtures of a number of fluorescent lights, washing the birthing rooms and doing welding in the gestation area. The appellant performed these duties alone and Cécilien supervised their execution.
22E. During the period from January 9 to March 3, 1995 (Via Porc Inc.), the appellant performed, in particular, the following duties:
The payer repaired seven hog barns 200 feet long by 40 feet wide. The duties were to break up the cement, redo the gutters, install air intakes, paint the walls and ceilings and wash and disinfect the buildings. The appellant worked with other employees of the payer and with the welder Jean-Pierre Nadeau and excavator J.D. Sylvain. The appellant acted as foreman. The appellant's work was supervised by Cécilien.
22F. During the period from June 26 to September 29, 1995 (Lait Porc M.C. Inc.), the appellant performed, in particular, the following duties:
- Regular farm work
In the first six weeks, the appellant's duties were to do the first two cuts of hay, spread manure, maintain fences, do maintenance in the hog barns, drill holes in the walls to install new fans, wash and paint the hog barns and ensile hay. The appellant's work was supervised by Cécilien, Mario and Marco;
- Construction of a flour mill
During the last eight weeks, the appellant's duties were to do the excavation, footings, foundation, walls, roof, partitions and the construction of two offices, and doing the electrical wiring and the painting. The appellant worked with Cécilien, Mario and Marco, with other employees of the payer and with the contractor Guy Turmel Inc.
22G. During the period from May 13 to August 30, 1996 (Lait Port M.C. Inc.), the appellant performed, in particular, the following duties:
Cutting a truckload of pulp logs and a truckload of saw logs, seeding, spreading liquid manure, ensiling hay, maintaining and repairing machinery and buildings, doing the first two cuts of baled hay, and ploughing. The appellant's work was supervised by Cécilien, Mario and Marco.
[5] Cécilien Berthiaume, Gaétan Beaudry and the appellant testified at the request of counsel for the appellant. Bruno Arguin, an appeals officer, testified at the request of counsel for the respondent.
[6] Subparagraphs 9(b), (c), (h) to (j), (m), (n) and (r) were admitted.
[7] As to subparagraph 9(a) of the Reply, the letters patent were filed as Exhibit A-1. They are dated December 11, 1978. Article 3.3 of Exhibit A-2 refers to a company incorporated by articles of continuation issued on April 30, 1990 and registered on May 1, 1990, which may explain the wording of subparagraph 9(a) of the Reply.
[8] Subparagraph 9(d) was denied because of the word "sold". It should have read "transferred for no consideration".
[9] Subparagraph 9(e) was denied because of the words "an agreement was signed". However, it was admitted that the distribution of the shares described in this subparagraph indeed represents the result of the share transfers.
[10] Subparagraph 9(f) was denied because of the use of the word "transferred", which should have read "converted".
[11] Subparagraph 9(g) was denied. It should have stated that the Class C shares were to be redeemed over a 10-year period for $405,249. Subparagraph (h) was admitted but could be completed by adding the words "for $405,249" after the words "undertook to redeem".
[12] Subparagraphs 9(k) and (l) were denied as drafted because, in the case of subparagraph (k), the wives of Cécilien and Mario are the shareholders of Porcs S.B. Inc. and because, as regards subparagraph (l), the two brothers had purchased an existing business which was however bankrupt.
[13] The appellant started up the business in 1955. In 1979, it began to operate as a corporation. The appellant held 60 percent of the shares and Cécilien and Mario held 20 percent each. The two sons were 22 and 20 years of age at the time. Marco was 15. In 1990, the appellant transferred the farming business, that is, the dairy and pig farm and a sugar bush, to the three aforementioned sons. Gifts of shares were made by the appellant to his sons and by Cécilien and Mario to Marco (Exhibits A-2 and A-3).
[14] The agreement most relevant to the instant case was filed as Exhibit A-4. Under that agreement, dated July 27, 1990, between the appellant and his three sons, the appellant was to be employed for 20 weeks a year over 10 years at an annual salary of $9,884, the Class C shares held by the appellant were to be redeemed over a 10-year period for a lump sum amount of $182,000 and a cumulative dividend of 7 percent was to be paid on the balance of the Class C shares. In the case of failure to comply with any of those three undertakings, any unpaid amount would become a debt bearing interest at a rate of 10 percent per annum.
[15] The performance of the undertakings described above was guaranteed by the personal sureties of the appellant's sons, a prohibition from disposing of the shares held in the company and a collateral security clause providing that no significant change in the capital stock or assets of the business would be made without the appellant's prior consent.
[16] Clauses 1.1, 1.2 and 1.3 describe the terms and conditions of the appellant's employment:
[TRANSLATION]
1.1 - Hiring
Ferme Normand Berthiaume & Fils Inc. hereby retains the services of and hires Normand Berthiaume to perform the duties previously assigned to him, which are well known to the parties and may be clarified from time to time by the board of directors of Ferme Normand Berthiaume & Fils Inc.
1.2 - Duration of employment
This contract of employment is for a duration of 20 consecutive weeks per year for a period of 10 years, commencing in 1991.
The said 20 consecutive weeks worked by Normand Berthiaume shall be worked during the company's intensive period of activity and will be determined more exactly, on an informal basis, between the parties from year to year.
1.3 - Salary
In consideration of the services to be rendered by the said Normand Berthiaume, Ferme Normand Berthiaume & Fils Inc. undertakes to pay him each year a salary of $9,884 during the said period of 20 consecutive weeks during which he is employed by the company.
[17] Cécilien Berthiaume is the president and manager of the farming businesses referred to in these appeals.
[18] Cécilien Berthiaume described the appellant's work as that of an experienced labourer or utility man who does not require much in the way of instructions. He said that the agreement was not complied with to the letter and that, in some years, the periods of work were 19, 20 or 22 weeks. The witness referred to the description of duties given in paragraphs 22 A to 22 G of the Notice of Appeal. These descriptions were prepared by him and his two brothers at their lawyer's request. No documents were filed in support of these descriptions of the duties allegedly performed by the appellant. It should be recalled that the appellant was 58 years old in 1992. His weekly salary was $450 and he worked 45 hours per week.
[19] On May 10, 1994, Ferme Normand Berthiaume et Fils purchased a vehicle, a 1987 Ford Ranger 4X4, for the appellant's daily use at a cost of $8,515.85 (Exhibit I-3). Cécilien Berthiaume explained the purchase by saying that there was not one day when the business did not need a tool and that the appellant used the vehicle in particular for this business purpose.
[20] Gaétan Beaudry is an accountant and director of taxation with the Beauce federation of the UPA. He explained the nature of the agreement entered into by the appellant and his sons in 1990 and observed that the farming business managed and operated by the appellant's sons was a model operation in the Beauce region.
[21] The appellant explained that he had assigned his farming business in 1990 at the age of 56. He was born in 1934. He said he is in good health, which judging from his physical appearance seems to be true. The appellant stated that he works on construction projects. At first he spoke of two weeks, then six to eight weeks. He also takes part in general farm work and does building maintenance with Cécilien or Mario or with farm employees, working whenever his sons telephone him. The description of his various periods of employment was vague and gave the impression that he was occupied year-round, either responding to his children's requests or just lending them a hand. His statutory declaration dated October 30, 1996 was filed as Exhibit I-4 and, in particular, states:
[TRANSLATION]
. . . I therefore sold my 60% interest for $400,000. My three sons formed a new company. Mario, Cécilien and Marco purchased my 60% interest for $400,000. The guys paid me $200,000 and I assigned my shares to them gradually in order to help them out. The other $200,000 is thus being paid to me at $20,000 a year plus interest until the year 2000 in what amounted to a 10-year lease. When I sold to my sons, the farm was worth at least $1,000,000 and was carrying $150,000 of debt. However, I wanted to give them a chance and I sold it to them for $400,000. When I sold, I did not have an agreement with my sons for them to hire me. When they hire me, it is because there is work. . . . I could choose my work schedule and my sons did not check my hours. They trusted me. In addition, three years ago, farm Lait Porc and I jointly purchased a Ford pickup truck. . . . I use this vehicle every day to get around. . . .
[22] In his statutory declaration, the appellant stated that he did not remember signing an agreement with his sons concerning employment.
[23] Bruno Arguin is an appeals officer with Revenue Canada. He explained that, on December 31, 1996, an insurance officer with Revenue Canada had rendered a decision to the effect that the employment was not insurable. The appellant appealed to the Minister through his lawyer, who wrote, in particular, the following in his letter to the Minister dated March 12, 1997 (Exhibit I-5):
[TRANSLATION]
Since Mr. Berthiaume and his employers have previously cooperated in the above matter with various officials from Revenue Canada and Human Resources Development Canada, forwarding, among other things, a number of documents and answering various questions (the answers to which were moreover misreported) and as this is not the first time in recent years that they have submitted to this charade to determine whether Mr. Berthiaume's employment is insurable, MR. BERTHIAUME AND HIS EMPLOYERS WILL NOT GRANT REVENUE CANADA ANY INTERVIEWS.
Mr. Berthiaume and his employers are nevertheless prepared to answer a written questionnaire.
Once the file is assigned to an appeals officer, we would appreciate it if that officer contacted us so that the matter can be disposed of quickly.
[24] Mr. Arguin said that he had telephoned the lawyer to tell him he wanted to conduct his investigation through either interviews or conference calls and that the lawyer could be present but that he did not feel this was a case in which he wanted to proceed by means of a written questionnaire. On June 5, 1997 (Exhibit I-6), Mr. Arguin answered essentially that if the appellant and his employers did not want to submit to the kind of investigation he considered adequate, he would render a decision on the basis of the documents and reports in his possession. However, he gave the lawyer a chance to allow the desired investigation to go forward. As there was no response from the appellant and his employers, the Minister's decisions were rendered on July 17, 1997. It is those decisions which are under appeal.
[25] Mr. Arguin determined that, in view of the agreement filed as Exhibit A-4 setting out the obligation to employ the appellant 20 weeks a year for a period of 10 years at a predetermined salary, in view of the fact that there was no evidence on which to determine the nature and importance of the work, and given the year-round use of the vehicle placed at the appellant's disposal by the farming business, the employment was excepted under paragraph 3(2)(c) of the Act.
[26] Counsel for the appellant argued mainly that the Minister's discretion was not judiciously exercised in view of the fact that the Minister's officer had not conducted an investigation. He also asserted that a number of the facts considered by the Minister had proven to be inaccurate. He argued that the facts revealed by the evidence can only lead to the conclusion that a similar agreement would have been entered into with a person dealing with the employer at arm's length.
[27] Counsel for the respondent contended that a person appealing to the Minister may not dictate to the investigating officer how to conduct his investigation. She argued that, in his statutory declaration, the appellant had stated that he did not remember the agreement providing for his employment over a period of 10 years. She also asserted that the facts on which the Minister relied in making his decision had proven to be substantially true.
[28] Paragraph 3(2)(c) of the Unemployment Insurance Act reads as follows (paragraph 5(2)(i) and subsection 5(3) of the Employment Insurance Act are similar thereto):
3.(2) Excepted employment is
. . .
(c) subject to paragraph (d), employment where the employer and employee are not dealing with each other at arm's length and, for the purposes of this paragraph,
(i) the question of whether persons are not dealing with each other at arm's length shall be determined in accordance with the provisions of the Income Tax Act, and
(ii) where the employer is, within the meaning of that Act, related to the employee, they shall be deemed to deal with each other at arm's length if the Minister of National Revenue is satisfied that, having regard to all the circumstances of the employment, including the remuneration paid, the terms and conditions, the duration and the nature and importance of the work performed, it is reasonable to conclude that they would have entered into a substantially similar contract of employment if they had been dealing with each other at arm's length.
[29] As stated in subparagraph 3(2)(c)(i) of the Act, the question of whether persons are not dealing with each other at arm's length is to be determined in accordance with the provisions of the Income Tax Act. Subsections 251(1) and 251(2) of the Income Tax Act define what this expression means. They read as follows:
251(1) Arm's length — For the purposes of this Act,
(a) related persons shall be deemed not to deal with each other at arm's length; and
(b) it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm's length.
251(2) Definition of "related persons" — For the purposes of this Act, "related persons", or persons related to each other, are
(a) individuals connected by blood relationship, marriage or adoption;
(b) a corporation and
(i) a person who controls the corporation, if it is controlled by one person,
(ii) a person who is a member of a related group that controls the corporation, or
(iii) any person related to a person described in subparagraph (i) or (ii); and
(c) any two corporations
(i) if they are controlled by the same person or group of persons,
(ii) if each of the corporations is controlled by one person and the person who controls one of the corporations is related to the person who controls the other corporation,
(iii) if one of the corporations is controlled by one person and that person is related to any member of a related group that controls the other corporation,
(iv) if one of the corporations is controlled by one person and that person is related to each member of an unrelated group that controls the other corporation,
(v) if any member of a related group that controls one of the corporations is related to each member of an unrelated group that controls the other corporation, or
(vi) if each member of an unrelated group that controls one of the corporations is related to at least one member of an unrelated group that controls the other corporation.
[30] Under subparagraph 251(2)(b)(iii) of the Income Tax Act, the appellant is a person related to the corporations that allegedly employed him. Consequently, the provisions of the Act respecting the exclusion of employment involving related persons apply.
[31] According to the decision by the Federal Court of Appeal in M.N.R. v. Jencan Ltd. (1997), 215 N.R. 352, the Tax Court's role with regard to the discretion exercised by the Minister under subparagraph 3(2)(c)ii) of the Act consists in reviewing the legality of the decision made in exercising that discretion. This review must be carried out with the required judicial deference. I cite pages 365 and 369 of that judgment:
. . . The Tax Court is justified in interfering with the Minister's determination under s. 3(2)(c)(ii) - by proceeding to review the merits of the Minister's determination - where it is established that the Minister: (i) acted in bad faith or for an improper purpose or motive; (ii) failed to take into account all of the relevant circumstances, as expressly required by s. 3(2)(c)(ii); or (iii) took into account an irrelevant factor.
. . .
. . . In other words, it is only where the Minister's determination lacks a reasonable evidentiary foundation that the Tax Court's intervention is warranted . . . . An assumption of fact that is disproved at trial may, but does not necessarily, constitute a defect which renders a determination by the Minister contrary to law. It will depend on the strength or weakness of the remaining evidence. The Tax Court must, therefore, go one step further and ask itself whether, without the assumptions of fact which have been disproved, there is sufficient evidence remaining to support the determination made by the Minister. If that question is answered in the affirmative, the inquiry ends. But, if answered in the negative, the determination is contrary to law, and only then is the Tax Court justified in engaging in its own assessment of the balance of probabilities. Hugessen, J.A., made this point most recently in Jolyn Sport, supra. At page 4 of his reasons for judgment, he stated:
"In every appeal under s. 70 the Minister's findings of fact, or 'assumptions', will be set out in detail in the reply to the Notice of Appeal. If the Tax Court judge, who, unlike the Minister, is in a privileged position to assess the credibility of the witnesses she has seen and heard, comes to the conclusion that some or all of those assumptions of fact were wrong, she will then be required to determine whether the Minister could legally have concluded as he did on the facts that have been proven. . . ."
[32] Can counsel for an appellant, or an appellant himself, dictate to the Minister's officer responsible for the investigation at the appeals level the investigation method that officer should use? To ask the question, in my view, is to answer it. Counsel for the appellant wished to know the Court's position on this point. The Court usually does not rule on a question unless it has been debated in court. In this case, I find the answer so obvious that I will give it. The Minister's appeals officer must render a decision after forming an opinion on the case. His is a quasi-judicial role. However, regardless of whether an officer of the Minister acts in a quasi-judicial role or in an inspection role, it is up to him to determine the best way to ascertain the truth in accordance with the standards of what is reasonable. It seems clear to me that a meeting or at least a telephone conversation with the appellants was necessary to enable him to assess the grounds of appeal and to allow the appellants to be heard. Indeed, appellants do not always find a telephone conversation sufficient to fully express their point of view. However, this method may be acceptable for purposes of efficiency. But there is definitely no obligation for the appeals officer to proceed by means of a written questionnaire if he deems that this is not how he will best shed light on a case. In my opinion, in view of his lack of cooperation, the appellant cannot complain that there was no investigation. In any case, I find that the Minister had sufficient information to be able to render his decision.
[33] Paragraph 3(2)(c) of the Act applies to contractual situations between related persons and leads to an analysis of workers' conditions of employment for the purpose of determining whether the employment is such as would normally be found in the labour market. The Act does not prevent an employer from retaining the services of a related person rather than those of a stranger, but the conditions of employment must be substantially identical to those that would have been negotiated with a stranger.
[34] In my opinion, the evidence did not show that the appellant's conditions of employment were normal conditions for an employee. The description of the duties was prepared by the president of the business with the help of his brothers. The appellant himself had great difficulty remembering the various jobs done. When the appellant described the work he did for the business, it was a series of small jobs done to help out and to occupy himself. I do not doubt that he was useful to the farming operation, but he was useful during hours that suited him. The work described in the Notice of Appeal is the work of a young labourer. The appellant is in good health, but he is nevertheless not a young labourer. In addition, his status as the former owner and as the father of the present officers preclude any belief that he performed under their supervision and over long hours the jobs described in the passages from the Notice of Appeal reproduced in paragraph 4 of these reasons. In addition, the hiring of the appellant, the duration of his employment and the amount of his remuneration were based on an agreement between him and the officers of the businesses which bound the parties to it for 10 consecutive years. This agreement can only raise serious doubt as to the authenticity of the employer-employee relationship. Another factor that adds to the doubt is the fact that the farming business placed a motor vehicle belonging to the business at the appellant's personal disposal year-round.
[35] I also find on the evidence adduced that the facts on which the Minister relied in making his decision under paragraph 3(2)(c) of the Act proved to be substantially true. The errors raised during the evidence were minor and often attributable to the facts reported by the appellant or the members of his family. In addition, those errors were not essential with respect to the matter of the authenticity of the employer-employee relationship.
[36] I conclude that the Minister reasonably exercised his discretion in deciding, having regard to all the circumstances of the employment, including the terms and conditions, the duration and the nature of the work as well as the remuneration, that the parties would not have entered into such a contract if they had been dealing with each other at arm's length. The appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 3rd day of December 1998.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]