[OFFICIAL ENGLISH TRANSLATION]
2002-542(EI)
BETWEEN:
CROP INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on June 12, 2002, at Montréal, Quebec, by
the Honourable Deputy Judge D.R. Watson
Appearances
Agent for the Appellant: Elyse Turmel
Counsel for the Respondent: Mounes Ayadi
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of July 2002.
|
"D.R. Watson " |
D.J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020702
Docket: 2002-542(EI)
BETWEEN:
CROP INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Watson, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on June 12, 2002. The issue is whether the appellant was correct in maintaining that during the period at issue from July 23, 2001, to September 6, 2001, Christine Fortin (the worker) did not hold insurable employment with CROP Inc. (the payer) within the meaning of the Employment Insurance Act (the "Act").
[2] It must be decided whether the work of the worker, Christine Fortin, met the test set out in a well-established line of cases that takes into account "the whole of the various elements which constitute the relationship between the parties": the degree of control exercised by the payer, ownership of the tools, chance of profit and risk of loss. These elements are not exhaustive and the weight they will be accorded varies in each case.
[3] The burden of proof is on the Appellant. It must show on the balance of evidence that the Minister of National Revenue (the "Minister") erred in fact and in law in his decision dated January 22, 2002. Each case stands on its own merits.
[4] In rendering his decision, the Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) For some thirty years, the appellant company has carried on an opinion survey business.
(b) The appellant's chief clients are government agencies, banks and telecommunications companies.
(c) The appellant employs about 50 persons in its Montréal offices and approximately one hundred persons on the road.
(d) The appellant asks its surveyors to conduct surveys between 1:00 p.m. and 9:00 p.m. from Monday to Friday, between 9:00 a.m. and 5:00 p.m. on Saturday and between 12:30 p.m. and 5:00 p.m. on Sunday.
(e) The worker was hired by the appellant to conduct surveys in the Ste-Dorothée and St-Léonard sectors.
(f) The appellant assigned the worker a territory; she was supposed to follow the streets and door numbers predetermined by the appellant and meet the quotas established according to the ages of the respondents.
(g) The worker's job could be summarized as follows: she would leave a questionnaire at the doors determined by the appellant together with her telephone number and that of the appellant; she would call back after a week and, when the questionnaire had been completed, she would retrieve it and mail it to the appellant by express mail or deliver it if the deadline so required.
(h) The worker did not have to abide by a fixed work schedule; she worked between 40 and 45 hours a week during the hours determined by the appellant.
(i) The appellant monitored the worker's work by the number of questionnaires completed.
(j) The worker had to return all of the completed questionnaires to the appellant; one sheet indicated the hours she had worked and another sheet showed how many kilometres she had driven in the course of her work.
(k) The appellant checked whether the questionnaires returned by the worker had been completed according to its requirements and provided the worker with new questionnaires and set the deadlines she had to meet.
(l) The worker had to perform the work given to her by the appellant by herself; she had an identification card identifying her with the appellant.
(m) The worker provided her own automobile and was reimbursed for vehicle operating expenses at $0.31/km.
(n) The worker was compensated at $10.50/hour; she was paid by cheque on an irregular basis. She was entitled to a bonus if the dates for the return of the questionnaires were met.
[5] At the hearing, the agent for the appellant admitted subparagraphs (a), (b), (e) and (i) to (n) and denied subparagraphs (c), (d) and (f) to (h).
[6] CROP (Centre de recherches sur l'opinion publique) Inc. is a firm specializing in opinion surveys for government agencies, banks and telecommunications firms; it employs approximately 150 people in its Montréal offices and approximately 180 interviewers on the road across Canada.
[7] The worker, Ms. Fortin, began to work for the payer on July 23, 2001, under an oral contract after an initial training period; the territory assigned to her covered specific sectors of Ste-Dorothée and St-Léonard, Quebec, and the worker was not authorized to go anywhere else without the payer's authorization. She recorded the number of hours worked for which she received $10.50/hour and was reimbursed $0.31/km for the distance she drove.
[8] The worker went to homes in the sector assigned to her, spoke to a responsible adult and asked the person to complete a lengthy questionnaire as soon as possible. Once the questionnaire was completed, she went back to the person, checked if all the responses had been given and gave the person $10 on the payer's behalf. When she had collected a number of completed questionnaires, she sent them by messenger or brought them herself to the office and presented an invoice indicating the number of hours worked and the distance driven. If a questionnaire contained errors or omissions, it was returned to the worker so that she contact the person who had completed it in order that it be corrected; she received the usual hourly rate and was reimbursed for the additional travel expenses incurred for the second visit.
[9] The depositions of the witnesses highlighted the following facts:
- The worker wore an identification badge with her name and the name of CROP prominently displayed.
- The worker had to make a quota that was set by the payer; if she did not make it, she received the usual compensation, but if she made the quota within the deadline, she could receive a bonus.
- The payer provided the worker with all of the materials needed for the work, including the questionnaires, maps indicating the assigned sectors, blank invoices for presenting claims, the hours worked and the distance driven, plus the identification badge.
[10] I reviewed all of the evidence in light of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 274 N.R. 366, and of the Federal Court of Appeal decision dated May 21, 2002, in Precision Gutters Ltd. v. Canada (Minister of National Revenue), 2002 F.C.A. 207.
[11] Having regard to all of the circumstances of the case at bar, including the testimony, admissions and documentary evidence, in light of the case law referred to, I am satisfied that the appellant was not successful in establishing, on the balance of evidence, that a genuine contract of service resulting in an employer-employee relationship between it and the worker did not exist during the periods at issue.
[12] Therefore, the appeal is dismissed and the decision of the Minister dated January 22, 2002, is confirmed.
Signed at Ottawa, Canada, this 2nd day of July 2002.
|
"D.R. Watson " |
D.J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor