[OFFICIAL ENGLISH TRANSLATION]
2000-2709(EI)
BETWEEN:
RÉAL DELISLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on September 19, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge J. F. Somers
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 14th day of November 2001.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 13th day of February 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20011114
Docket: 2000-2709(EI)
BETWEEN:
RÉAL DELISLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on September 19, 2001.
[2] In a letter dated January 4, 2000, the appellant asked the Minister of National Revenue (the "Minister") to rule on whether he had held insurable employment during the period at issue, that is, from May 18 to June 5, 1999, when he was employed by 9049-8833 Québec Inc., the payer.
[3] In a letter dated January 4, 2000, the Minister informed the appellant of his decision to recognize that the employment at issue was insurable, since the appellant was considered to have been employed under a contract of service.
[4] On February 7, 2000, the payer appealed from that decision to the Chief of Appeals, arguing that the appellant had never been one of its employees.
[5] On May 31, 2000, the Minister reconsidered his decision and determined that the employment was not insurable because it did not meet the conditions for a contract of service.
[6] The burden of proof is on the appellant. He has to show on the balance of evidence that the Minister's decision is unfounded in fact and in law. Each case stands on its own merits.
[7] In making his decision, the Minister relied on the following assumptions of fact, which the appellant admitted, denied or had no knowledge of:
[TRANSLATION]
(a) The payer is a company operating under the company name "La Renaissance"; (admitted)
(b) The payer was incorporated on May 15, 1997; (admitted)
(c) The payer holds and manages a number of multi-residential buildings; (admitted)
(d) The payer employs 5 custodians, 1 office employee and one rental agent, who was hired only for the lease renewal period; (admitted)
(e) The payer had to invest $1.7 million to renovate 21 of its buildings; (no knowledge)
(f) For the various kinds of work required to renovate its buildings, the payer had to do business with a number of trades during a specific period; (admitted)
(g) The appellant was among the professionals who participated in the said work; (admitted)
(h) The appellant was in charge of the project to repair cracks; (denied)
(i) The masonry work performed by the appellant consisted in repairing the brickwork; (denied)
(j) The appellant and the payer agreed that the work had to be done as part of a major renovation project set up for a definite term; (denied)
(k) The appellant received no training from the payer; (denied)
(l) The appellant was not required to do the work personally; (denied)
(m) The appellant had no supervisor and was not required to report to anyone; (denied)
(n) Only the final result mattered to the payer; (denied)
(o) The appellant had no work schedule to follow; (denied)
(p) The appellant tallied up his working hours himself; (admitted)
(q) In order to be paid, the appellant invoiced the payer; (denied)
(r) The appellant received $15 per hour invoiced, an amount which was payable by cheque; (admitted)
(s) The appellant provided his own tools. (admitted)
[8] The payer, incorporated on May 5, 1997, is a company operating under the company name "La Renaissance". The payer holds and owns a number of multi-residential buildings.
[ 9] The payer employs five custodians, an office employee and a rental agent, who was hired only for the lease renewal period.
[10] The payer had to invest $1.7 million to renovate 21 of its buildings. For the various kinds of work required to renovate its buildings, the payer had to do business with a number of trades during a specific period. The appellant was one of the professionals who took part in the work.
[11] According to the appellant, he was hired to make renovations on a number of the payer's buildings. The appellant was a bricklayer by trade and was the only one in that trade to perform this work for the payer for a three-week period.
[12] The payer provided the appellant with the materials he needed to do his work and sometimes provided him with a helper. The work consisted in repairing the bricks. No deadline was set for completing the work; the appellant thought that the work had to be done within a month and a half.
[13] The appellant received no training from the payer since he had approximately 30 years' experience. During the period at issue, the appellant worked by himself and had no employee working for him. According to the appellant, he went to the payer's office to get instructions from the superintendent regarding the places where he was to work. The appellant was not supervised by the payer whose only interest was the final result.
[14] The appellant worked exclusively for the payer during the period at issue; he worked from 8:00 a.m. to 4:00 p.m., five days a week and was paid $15 an hour. According to the appellant, he was unemployed before the period at issue and found employment elsewhere after that period.
[15] The appellant provided no materials but used his own tools. The appellant stated that the payer had set his salary at $15 an hour. He added that he filled out time sheets, which were provided by the payer. The appellant received two cheques from the payer for $360.00 and $1,522.50, issued on May 27, 1999, and June 10, 1999, respectively (Exhibit I-2). When the appellant learned from the payer that he was considered a self-employed worker, he broke off his contractual relationship with the payer.
[16] The appellant admitted that he had formed a company 20 years ago under the name of J.M.R. Delisle Inc. A journeyman competency certificate was issued to J.M.R. Delisle Inc. - employer - by the Commission de la construction du Québec on April 15, 1996; the said certificate states that the expiry date is May 1, 1997, (Exhibit I-1). The appellant told the Court that his company had not operated since June 30, 1998.
[17] In addition, another journeyman competency certificate was issued by that same Commission, on June 22, 1999, but this time in the appellant's name. The expiry date indicated is July 1, 2000. (Exhibit I-1).
[18] Guy Dufour, the union representative, told the Court that he had visited the payer's work site on three occasions during the period at issue. He said that the appellant could not be unionized in that trade because he owned a company and it was an "employer". He further added that the hourly wage for a unionized employee in that field was $23.78.
[19] A competency certificate was issued to the appellant as a union member by the Commission de la construction du Québec (Exhibit I-1) on June 22, 1999. The appellant stated that this card was not a renewal.
[20] Jean-Pierre Perron, the director and sole shareholder of the payer, stated that he owned 366 housing units and that he had only 12 employees, including a secretary, a rental agent and five custodian couples. Mr. Perron noted that the appellant did not hold a competency card issued by the Commission de la construction du Québec.
[21] The renovation work began in September 1998 and ended in September 1999, and the costs amounted to $1,600,000. The payer had 38 items to renovate and hired a number of trades for this purpose. To co-ordinate the work, the payer hired a superintendent who in turn engaged the services of the subcontractors.
[22] The appellant was the only subcontractor and he filed a [translation] "salary complaint" with the Commission de la construction du Québec against 9049-8833 Québec Inc. - Projet Renaissance (Exhibit A-1).
[23] Mr. Perron stated that no training was given to the appellant by the superintendent who told the appellant only the places and items to be renovated in the buildings. The brick repair work lasted only three weeks.
[24] The payer did not monitor the working hours of the some 60 persons who worked on the project at various times. Mr. Perron admitted that he provided the bricking materials but only to get a better price from the supplier. The appellant provided materials worth only $22.50.
[25] Mr. Perron stated that he was not a contractor, but only the owner of the buildings, and that is why he engaged the services of various tradespersons for periods that were determined by need.
[26] Mario Shink, an appeals officer with the Canada Customs and Revenue Agency, stated that the Minister's decision was reviewed only after speaking with Jean-Pierre Perron, the sole shareholder of the payer. Mr. Shink noted that, during the period at issue, the appellant did not have a competency card as a union member. The appellant apparently told him that he had his own company but that the company did not have any contracts.
[27] To distinguish properly a contract of service from a contract for services, all of the various elements making up the relationship between the parties must be examined. The case law has consistently relied on four basic elements in making the distinction.
[28] In Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal listed the following four tests: (a) the degree or absence of control exercised by the payer; (b) ownership of tools; (c) chance of profit and risk of loss; and (d) the degree of integration of the employee's work into the employer's business.
Control
[29] The payer hired a superintendent to co-ordinate the work. The services of subcontractors in various trades were engaged to perform specific work. The superintendent did not supervise the appellant's work and gave him no instructions regarding how he was to perform his work. The superintendent only told the appellant the locations where he was to do the repair work or renovations. The appellant himself determined his hours of work. On these facts, the Court may conclude that the appellant was a self-employed worker.
Ownership of the tools
[30] The payer provided the materials for the simple reason that it could get a better price from the suppliers. The appellant provided some of his tools valued at approximately $400. In determining the nature of the contract, this is not a decisive element.
Chance of profit or risk of loss
[31] The appellant was paid $15 an hour; he submitted his hours worked to the superintendent and a cheque was given to him. There was no chance of profit or risk of loss since the payer provided the materials.
Integration
[32] The payer hired a number of persons from various trades. The payer was not in the business of renovating buildings. The buildings belonged to the payer and it had to invest $1,700,000 million in order to renovate its buildings. The payer hired about 10 people to administer and manage the residential units in its buildings. The appellant's work with the payer lasted only three weeks.
[33] The services provided by the appellant to the payer were for a short period, that is, three weeks. It should be noted that the appellant had his own company, which, according to him, was not in operation. Moreover, the appellant was not a union member during the period at issue; he obtained his competency card after the work was completed. On the basis of these facts, the Court finds that the appellant was a self-employed worker.
[34] Control and integration are the two decisive elements in determining the nature of a contract of service. It is necessary to look at the overall relationship between the parties. The appellant's work was not an integral part of the operations of the payer's business. The purpose of doing the renovations was to put the units in a condition in which they could be rented. Renting the units was the payer's objective, not constructing or renovating them.
[35] Having regard to all of the circumstances, the appellant and the payer were not bound by a contract of service within the meaning of paragraph 5(1)(a) of the Employment Insurance Act.
[36] The appeal is dismissed and the decision of the Minister is confirmed.
Signed at Ottawa, Canada, this 14th day of November 2001.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 13th day of February 2003.
Sophie Debbané, Revisor