[OFFICIAL ENGLISH TRANSLATION]
1999-3494(EI)
BETWEEN:
ROD JAZRA OP. CHECK-MATE INVESTIGATIONS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor.
Appeal heard on common evidence with the appeals of Sherrill Novosad op. Spock R.D. International (1999-3495(EI)), Sherrill Novosad op. Sheriff & Marshall (1999-3496(EI) and 2000-890(EI)) and Rod Jazra o/s Check-Mate Investigations (2000-891(EI)), on April 17, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphanie Côté
For the Intervenor: The Intervenor himself
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 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-3495(EI)
BETWEEN:
SHERRILL NOVOSAD OP. SPOCK R.D. INTERNATIONAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor.
Appeal heard on common evidence with the appeals of Rod Jazra op. Check-Mate Investigations (1999-3494(EI)), Sherrill Novosad op. Sheriff & Marshall (1999-3496(EI) and 2000-890(EI)) and Rod Jazra o/s Check-Mate Investigations (2000-891(EI)), on April 17, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge Gérard Charron
Appearances
Agent for the Appellant: Rod Jazra
Counsel for the Respondent: Stéphanie Côté
For the Intervenor: The Intervenor himself
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 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-3496(EI)
BETWEEN:
SHERRILL NOVOSAD OP. SHERIFF & MARSHALL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor.
Appeal heard on common evidence with the appeals of Rod Jazra op. Check-Mate Investigations (1999-3494(EI)), Sherrill Novosad op. Spock R.D. International (1999-3495(EI)), Sherrill Novosad op. Sheriff & Marshall (2000-890(EI)) and Rod Jazra o/s Check-Mate Investigations (2000-891(EI)), on April 17, 2001, at
Montréal, Quebec, by
the Honourable Deputy Judge Gérard Charron
Appearances
Agent for the Appellant: Rod Jazra
Counsel for the Respondent: Stéphanie Côté
For the Intervenor: The Intervenor himself
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 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-890(EI)
BETWEEN:
SHERRILL NOVOSAD OP. SHERIFF & MARSHALL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Rod Jazra op. Check-Mate Investigations (1999-3494(EI)), Sherrill Novosad op. Spock R.D. International (1999-3495(EI)), Sherrill Novosad op. Sheriff & Marshall (1999-3496(EI)) and Rod Jazra o/s Check-Mate Investigations (2000-891(EI)), on April 17, 2001, at
Montréal, Quebec, by
the Honourable Deputy Judge Gérard Charron
Appearances
Agent for the Appellant: Rod Jazra
Counsel for the Respondent: Stéphanie Côté
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 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-891(EI)
BETWEEN:
ROD JAZRA O/S CHECK-MATE INVESTIGATIONS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Rod Jazra op. Check-Mate Investigations (1999-3494(EI)), Sherrill Novosad op. Spock R.D. International (1999-3495(EI)), Sherrill Novosad op. Sheriff & Marshall (1999-3496(EI)), Sherrill Novosad op. Sheriff & Marshall (2000-890(EI)), on April 17, 2001, at
Montréal, Québec, by
the Honourable Deputy Judge Gérard Charron
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphanie Côté
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 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010628
Docket: 1999-3494(EI)
BETWEEN
ROD JAZRA OP. CHECK-MATE INVESTIGATIONS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor,
AND
1999-3495(EI)
SHERRILL NOVOSAD OP. SPOCK R.D. INTERNATIONAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor,
AND
1999-3496(EI)
SHERRILL NOVOSAD OP. SHERIFF & MARSHALL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
YVAN GAUTHIER,
Intervenor,
AND
2000-890(EI)
SHERRILL NOVOSAD OP. SHERIFF & MARSHALL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
2000-891(EI)
ROD JAZRA O/S CHECK-MATE INVESTIGATIONS,
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 April 17, 2001, to determine whether Yvan Gauthier (the worker) held insurable employment from August 1 to December 31, 1998, when he was in the service of Rod Jazra and Sherrill Novosad, doing business respectively under the styles and trade names Check-Mate Investigations, Sheriff & Marshall and Spock R.D. International.
[2] Sherrill Novosad requests a reconsideration of the notice of assessment of employment insurance issued for 1998 on May 27, 1999, concerning the following workers: Guiseppe Fragola, Chantale Dion, Danny Viens, Raymond Habel, Michel Smith, Yvan Gauthier and Andréa Szokoll (the workers), when they were all working for Sherriff & Marshall and Check-Mate Investigations (within the meaning of the Employment Insurance Act).
[3] By letter dated July 5, 1999, the respondent informed the appellant Rod Jazra that the employment was insurable from July 14 to December 1 on the ground that there was an employer-employee relationship between Yvan Gauthier and him during the period from October 26 to December 21, 1998.
[4] By letter dated July 6, 1999, the respondent informed the appellant Sherrill Novosad that the employment was insurable from July 14 to December 1, 1998, because it met the requirements of a contract of service between Yvan Gauthier and Sherrill Novosad, doing business under the trade name Spock R.D. International.
[5] By letter dated July 6, 1999, the respondent informed the appellant that the employment was insurable on the ground that there was an employer-employee relationship between Sherrill Novosad and him from October 19 to 21, 1998.
[6] By letter dated July 26, 1999, the appellant Sherrill Novosad asked the respondent to reconsider the notice of assessment of employment insurance issued for 1998 on May 27, 1999, concerning the workers Guiseppe Fragola, Chantale Dion, Danny Viens, Raymond Habel, Michel Smith, Yvan Gauthier and Andréa Szokoll.
[7] On December 2, 1999, the respondent replied that he was confirming his notice of assessment of employment insurance for the workers mentioned above because those employments met the requirements of a contract of service from January 1 to December 31, 1998.
Statement of Facts
[8] The facts on which the respondent relied in making his decisions are stated in paragraphs 21, 5, 5, 9 and 7 of the Replies to the Notices of Appeal as follows:
Rod Jazra (1999-3494(EI))
[TRANSLATION]
(a) The appellant had operated an investigation agency under the trade name "Check-Mate Investigations" since 1991. (admitted)
(b) The worker held a security or investigation officer's permit issued by the Ministère de la Sécurité publique of the Government of Quebec. (admitted)
(c) The worker rendered services, on call, to the appellant as an investigator doing shadowing work. (admitted)
(d) The worker:
- went to the site of the investigation;
- informed the appellant that he had just arrived on the site;
- entered the time of arrival in his report and noted everything he saw;
- occasionally filmed the individual under investigation using a video camera; and
- obtained the appellant's permission to leave the site. (denied)
(e) The appellant contacted the worker from time to time at the site of the investigation. (admitted)
(f) At the end of the investigation, the worker handed his report and the video cassette to the appellant. (admitted)
(g) The worker used his automobile and paid most of the automobile expenses. (admitted)
(h) The appellant occasionally added one or two hours of work to the worker's remuneration to reimburse him for gasoline. (denied)
(i) The worker used his video camera, but the cost of the cassettes was reimbursed by the appellant. (admitted)
(j) The cellular telephone belonged to the appellant and he paid its costs. (admitted)
(k) The worker also installed an alarm system at the payer's new premises and assisted in the payer's relocation. (admitted)
(l) The worker was paid $11 an hour, by cheque, by the appellant. (admitted)
Sherrill Novosad (1999-3495(EI))
[TRANSLATION]
(a) In 1998, the worker took steps to obtain an investigator's permit. (denied)
(b) Rod Jazra (hereinafter the employer), who operated "Check-Mate Investigations", completed an application form on behalf of the worker, who obtained his investigator's permit on July 14, 1998. (denied)
(c) The worker was then able to act as an investigator solely for an investigation or security agency. (denied)
(d) The employer was the sole proprietor of "Check-Mate Investigations", acting as an investigation or private detective agency. (denied)
(e) The employer hired the worker under an oral agreement and assigned him a marital shadowing job and a case in which he was to film an individual for the CSST. (denied)
(f) The worker was on call; he had to complete a form provided by the employer and enter the place where he went and the time spent at each place and note everything he had seen. (denied)
(g) All the clients whom the worker went to see were clients of the employer. (denied)
(h) The employer supplied a cellular telephone to the worker, who used his automobile, a portion of the expenses of which was reimbursed by the employer. (denied)
(i) The employer compiled the reports submitted by the worker every week and remunerated him on the basis of the number of hours worked. (denied)
(j) The employer held a liability insurance policy covering the worker's work. (denied)
(k) The worker was paid $11 an hour by cheque each week. (denied)
(l) The worker worked for the employer a number of times and observed that his pay cheques came from three different businesses: (denied)
The employer ("Check-Mate Investigations");
The appellant doing business under the trade name "Sheriff & Marshall" (related case);
The appellant doing business under the trade name "Spock R.D. International" (subject of the instant appeal).
(m) The appellant was the employer's spouse.
(n) The three businesses were connected to the field of investigation, private detective and credit agencies. (denied)
(o) The worker rendered services to the employer and was remunerated by the appellant for work performed as an investigator between July 14 and December 1, 1998. (denied)
(p) During the period in issue, the worker received a total of $2,595 from the appellant for work performed for the employer. (denied)
Sherrill Novosad (1999-3496(EI))
[TRANSLATION]
(a) In 1998, the worker took steps to obtain an investigator's permit. (denied)
(b) Rod Jazra (hereinafter the employer), who operated "Check-Mate Investigations", completed an application form on behalf of the worker, who obtained his investigator's permit on July 14, 1998. (denied)
(c) The worker was then able to act as an investigator solely for an investigation or security agency. (denied)
(d) The employer was the sole proprietor of "Check-Mate Investigations", acting as an investigation or private detective agency. (denied)
(e) The employer hired the worker under an oral agreement and assigned him a marital shadowing job and a case in which he was to film an individual for the CSST. (denied)
(f) The worker was on call; he had to complete a form provided by the employer and enter the place where he went and the time spent at each place and note everything he had seen. (denied)
(g) All the clients whom the worker went to see were clients of the employer. (denied)
(h) The employer supplied a cellular telephone to the worker, who used his automobile, a portion of the expenses of which was reimbursed by the employer. (denied)
(i) The employer compiled the reports submitted by the worker every week and remunerated him on the basis of the number of hours worked. (denied)
(j) . . .
(k) The worker was paid $11 an hour by cheque each week. (denied)
(l) The worker worked for the employer a number of times and observed that his pay cheques came from three different businesses: (denied)
The employer ("Check-Mate Investigations");
The appellant doing business under the trade name "Sheriff & Marshall" (subject of the instant appeal);
The appellant doing business under the trade name "Spock R.D. International" (related case).
(m) The appellant was the employer's spouse. (denied)
(n) The three businesses were connected to the field of investigation, private detective and credit agencies. (denied)
(o) The worker rendered services to the employer and was remunerated by the appellant for work performed as an investigator on October 19, 20 and 21, 1998. (denied)
(p) The worker received a cheque for $313.50 from the appellant for that work, whereas the appellant claims that he relocated her business and received $487.52 for the work. (denied)
Sherrill Novosad (2000-890(EI))
[TRANSLATION]
(a) Prior to the period in issue, the appellant operated a dog rental service under the trade name "Sherriff & Marshall". (admitted)
(b) The appellant's business was inoperative during the first eight or nine months of 1998 but changed purpose and started again in September 1998 as a tracing business (investigation), mainly outside the country. (admitted)
(c) The appellant was sole proprietor of the business and her spouse, Rod Jazra, acted as director and sole employee of the new business. (admitted)
(d) Furthermore, Rod Jazra was sole proprietor of a detective agency offering spying, shadowing, investigation and tracing services which he operated under the trade name "Check-Mate Investigations". (admitted)
(e) Mr. Jazra held the mandatory permit, issued by the Attorney General, to operate an investigation or security agency. (admitted)
(f) During the period in issue, the payer hired the workers as investigators working on call and part time. (denied)
(g) During the period in issue, the workers rendered services to Rod Jazra under a contract of service and were remunerated by the appellant's business. (admitted)
(h) The appellant was required to withhold and pay employment insurance premiums on the remuneration she paid to the workers concerned by the assessment dated May 27, 1999. (denied)
Rod Jazra (2000-891(EI))
[TRANSLATION]
(a) The appellant operates a detective agency and offers spying, shadowing, investigation and tracing services. (admitted)
(b) The appellant was sole proprietor of the business he operated under the trade name "Check-Mate Investigations". (admitted)
(c) The appellant held the mandatory permit, issued by the Attorney General, to operate an investigation or security agency. (admitted)
(d) During the periods in issue, the appellant hired the workers as investigators working on call and part time. (admitted)
(e) To work for the appellant, each investigator had to obtain an investigator's permit from the Sûreté du Québec allowing them to work solely for the appellant. (denied)
(f) The investigator could not work as a self-employed investigator because he then had to pay a $10,000 bond to obtain an agency operating permit (like the appellant). (admitted in part)
(g) The workers had to investigate for the clients of the appellant, who gave them every instruction and directive concerning the investigation to be conducted. (admitted)
(h) As part of the work, the workers had to provide their automobile, cellular telephone, pager and video camera without compensation from the appellant. (admitted)
(i) The workers went to the place designated by the appellant and had to report, stating the hours worked, on the surveillance done for the appellant's client. (admitted)
(j) The workers were paid an hourly wage determined with the appellant and based on the hours actually worked. (admitted)
(k) During the periods in issue, the workers were paid by cheque drawn on the appellant's account; at certain other times, the workers were paid by cheque drawn on the account of Sherill Novosad, the appellant's spouse, operating a business under the trade name "Sheriff & Marshal". (admitted)
(l) Although they were almost always on the road, the workers communicated with the appellant several times a day to follow up on their shadowing and obtain new instructions. (admitted)
(m) The investigator could not be held liable for professional misconduct in the context of his work; the appellant held mandatory liability insurance for this purpose. (denied)
(n) When a worker ceased to work for the appellant, he had to hand his permit to the appellant. (denied)
[9] The appellants admitted the truth of the facts alleged in the subparagraphs of the above paragraphs reproduced from the Replies to the Notices of Appeal concerned, except those they denied, as indicated in parentheses at the end of each subparagraph.
Rod Jazra's Testimony
[10] Mr. Jazra has been a private detective under the Act respecting detective or security agencies since 1990. He has employed workers and investigators who are employees when they work for an agency or self-employed workers. An investigator must supply his own car, camera, pager and binoculars. He has never had any full-time employees. All his workers are on call and are entitled to work for other employers. Sheriff & Marshall International and Spock R.D. International are not in any way investigation agencies. Only Check-Mate is an investigation agency (Exhibit A-1). Sheriff & Marshall International handles only international assignments and belongs to Sherrill Novosad, the spouse of the witness. As to Spock R.D. International, it is not an investigation agency either. The two entities are administered by Rod Jazra for Sherrill Novosad. Jazra occasionally used the cheques of the two businesses when he was short of funds in his business, Check-Mate Investigations. No Check-Mate employee ever worked for Sheriff & Marshall International or for Spock R.D. International. Yvan Gauthier worked for Check-Mate as a self-employed worker. He also worked for Sears as a carrier. The wages he received from those businesses were mistakenly accounted for in Check-Mate's computer.
[11] Jazra admitted that he had operated an investigation agency under the trade name Check-Mate Investigations since 1991. Gauthier held a security or investigations officer's permit issued by the Ministère de la Sécurité publique du Québec. The worker rendered services to the appellant, on call, as an investigator shadowing. Jazra occasionally contacted Gauthier at the site of the investigation. At the end of the investigation, Gauthier submitted his report and the video cassette to Jazra. Gauthier used his car and paid most of the automobile expenses; Jazra sometimes added one or two hours of work to Gauthier's remuneration to pay for gas. Gauthier used his video camera and Jazra's cellular phone, but the cost of the cassettes was reimbursed by the appellant. Gauthier installed an alarm system on the payer's premises and helped him relocate. Gauthier received $11 a hour paid by cheque. In docket 1999-3495(EI), at paragraph 7, the respondent states that the worker held insurable employment with the employer, Rod Jazra, while being remunerated by the appellant, since, during that period, the employer and the worker were bound by a contract of service within the meaning of paragraph 5(1)(a) of the Employment Insurance Act.
[12] At the origin of the Minister's decision in this case is Sherrill Novosad's application for a ruling on the insurability of Gauthier, whereas in docket 1999-3494(EI), at subparagraphs 21(a), (c), (e) to (g) and (i) to (l) of the Reply to the Notice of Appeal, Jazra admits that Gauthier was employed by him at Check-Mate. Gauthier was paid by three companies: Jazra's company and Ms. Novosad's two companies.
Yvan Gauthier's Testimony
[13] This individual is a truck driver and works for Jazra as an investigator. Jazra completed an application form for a permit and handed it to Gauthier to enable him to obtain a permit from the Sûreté du Québec. He is now an investigator registered with the Sûreté in the name of Check-Mate, whose badge he wears. When he receives a call from Jazra, Gauthier goes to the offices of Check-Mate to receive his mandate. Gauthier telephones Jazra for advice as problems arise. He may not leave an assignment without requesting permission in advance. He must complete a time sheet on arrival and departure in order to determine his pay cheque. He must record the distances of car trips taken to obtain compensation¾in time, not in money¾for gasoline consumption. At the end of a shadowing assignment, the worker must submit a handwritten report. Gauthier never worked for other investigation businesses; he was paid by cheque issued by Check-Mate, sometimes by Sheriff & Marshall and at times by Spock International. The cheques were always signed by Jazra. Gauthier owned a camera, but not the cellular telephone he used, which belonged to Jazra or Check-Mate. The worker had to pay the cost of his own telephone calls and could be reimbursed for those he made for the payer. In addition, he had to pay for the first video cassette used; subsequent cassettes were supplied by the payer. Gauthier was paid by the hour; according to his pay cheque, he worked for Spock and Sheriff & Marshall and Check-Mate and Jazra. Jazra alone knows which it was.
Analysis of the Facts in Relation to the Law
[14] It must now be determined whether the workers' activities' are included in the notion of insurable employment, that is to say whether there was a contract of service.
[15] The case law has stated four essential tests for establishing a contract of service. The decisive case in the matter is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. The tests are as follows: (1) control, (2) ownership of the tools, (3) chance of profit and (4) risk of loss. The Federal Court of Appeal added the degree of integration in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, but this enumeration is not exhaustive.
[16] The burden of proof is on the appellants. In docket 1999-3495(EI), the appellant Sherrill Novosad denied all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal. Being absent at the time of the appeal, she designated Rod Jazra to represent her. Mr. Jazra testified that none of his employees had ever worked for Sheriff & Marshall or for Spock International, thus for Sherrill Novosad. Yvan Gauthier was an employee of Check-Mate and had self-employed status. Rod Jazra therefore did not discharge his obligation to refute Sherrill Novosad's evidence (1999-3495(EI)). In docket 1999-3494(EI), Yvan Gauthier worked for Rod Jazra as an investigator with Check-Mate. Upon receiving a call from Jazra, he went to the offices of Check-Mate to receive his mandate for the day. He would stay in contact with Jazra throughout the entire day. He could not leave his post without Jazra's permission. He completed a time sheet on a daily basis and was paid by Check-Mate, at times by Sheriff-Marshall and sometimes by Spock International. The cheques were signed by Jazra. Gauthier did not know for whom he worked. Only Jazra knew. Gauthier worked for Check-Mate under Jazra's control. Most of his tools belonged to him. Thus, since the appellant admitted all the subparagraphs of paragraph 21 of the Reply to the Notice of Appeal in docket 1999-3494(EI), except subparagraphs (d) and (b), there is no doubt that Gauthier and the payer were governed by a contract of service and that the appellant did not succeed in refuting the evidence.
[17] In docket 1999-3496(EI), the appellant is Sherrill Novosad and she denied all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal through her agent, Rod Jazra, who thus failed to prove the case in 1999-3496(EI) as well.
[18] In dockets 2000-890(EI) and 2000-891(EI), the appellants failed to have a number of witnesses heard and the respondent had to render his decisions on the evidence before him. In such a case, what attitude must the Court adopt regarding the gaps in the evidence?
[19] The testimonies of Rod Jazra and Yvan Gauthier contain numerous hesitations and are full of obvious contradictions. I conclude from this that they did not testify in good faith and are not credible. They failed to mention important facts that were essential in revealing the whole truth.
[20] Accordingly, the appeals are dismissed and the decisions of the Minister are confirmed.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true
on this 20th day of January 2003.
Sophie Debbané, Revisor