[OFFICIAL ENGLISH TRANSLATION]
2001-2476(EI)
BETWEEN:
JOSÉE PAYETTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Manon Croteau (2001-2477(EI));
Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2477(EI)
BETWEEN:
MANON CROTEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2478(EI)
BETWEEN:
JEAN-PIERRE VILLAGI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2480(EI)
BETWEEN:
PIERRE-PAUL BOUCHER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2481(EI)
BETWEEN:
GEORGES LABRECQUE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2482(EI)
BETWEEN:
ANDRÉ MEUNIER
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2484(EI)
BETWEEN:
CLAIRE CHAMPOUX,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Clément Fortin (2001-2486(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2486(EI)
BETWEEN:
CLÉMENT FORTIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Michel Charbonneau (2001-2487(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2487(EI)
BETWEEN:
MICHEL CHARBONNEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI))
and Commission des services juridiques (2001-2488(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellant not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-2488(EI)
BETWEEN:
COMMISSION DES SERVICES JURIDIQUES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard with the appeals of Josée Payette (2001-2476(EI));
Manon Croteau (2001-2477(EI)); Jean-Pierre Villagi (2001-2478(EI)); Pierre-Paul Boucher (2001-2480(EI)); Georges Labrecque (2001-2481(EI)); André Meunier (2001-2482(EI)); Claire Champoux (2001-2484(EI)); Clément Fortin (2001-2486(EI)) and Michel Charbonneau (2001-2487(EI))
on June 27, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the Appellant: Gérard Larivière
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appellants Josée Payette, Manon Croteau, Jean-Pierre Villagi, Pierre-Paul Boucher, Georges Labrecque, André Meunier, Claire Champoux, Clément Fortin andMichel Charbonneau not having held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations during the 1999 taxation year, the appeal is allowed and the assessment made by the Minister is set aside in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020725
Dockets: 2001-2476(EI); 2001-2477(EI)
2001-2478(EI); 2001-2480(EI)
2001-2481(EI); 2001-2482(EI)
2001-2484(EI); 2001-2486(EI)
2001-2487(EI) and 2001-2488(EI)
BETWEEN:
JOSÉE PAYETTE,
MANON CROTEAU,
JEAN-PIERRE VILLAGI,
PIERRE-PAUL BOUCHER,
GEORGES LABRECQUE,
ANDRÉ MEUNIER,
CLAIRE CHAMPOUX,
CLÉMENT FORTIN,
MICHEL CHARBONNEAU, and
COMMISSION DES SERVICES JURIDIQUES,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
P. R. Dussault, J.T.C.C.
[1] These appeals were heard together. At issue in all of them is whether the appellants, members of the review committee of Quebec's Commission des services juridiques, held insurable employment within the meaning of the Employment Insurance Act ("the Act") and the Employment Insurance Regulations ("the Regulations") during the 1999 taxation year as the respondent, the Minister of National Revenue ("the Minister"), has claimed. As well, the respondent made an assessment, notice of which is dated November 24, 2000, making the appellant, the Commission des services juridiques, liable for unpaid employee and employer Employment Insurance contributions in the amount of $4,555.57 and interest in the amount of $397.74, with regard to the nine appellants, the members of the review committee of the Commission des services juridiques in 1999.
[2] The parties have agreed to proceed using the appeal of Manon Croteau (2001-2477(EI)) as a standard file.
[3] The facts on which the appellants relied in making their appeals are set out in paragraphs 1 to 25 of the Notice of Appeal. These paragraphs read as follows:
[TRANSLATION]
1. The Commission des services juridiques is a body established by Quebec's Legal Aid Act (R.S.Q., c. A-14).
2. Section 22(k) of that Act provides that the Commission shall "form a review committee for the purposes of sections 74 and 75" of that Act.
3. Section 74 of that Act provides that the review committee shall be made up of three persons, at least one of whom shall be an advocate; in practice, the members of the review committee are all advocates.
4. Sections 74 and 75 of that Act set out the right to a review; sections 76 and 78 of that Act and sections 88, 90 and 92 of Quebec's Regulation respecting the application of the Legal Aid Act (R.S.Q., c. A-14, r-1) set out the other regulations governing reviews; section 79 of the Act provides that the review committee's decisions are final and without appeal.
5. In 90 per cent of cases, the review committee hears applications for review by means of conference calls.
6. The Commission des services juridiques identifies persons suitable for appointment to the review committee and invites them to apply as candidates for appointment.
7. To apply for appointments, candidates must have been an advocate for at least 10 years.
8. By resolution at its annual general meeting, the Commission des services juridiques appoints the members of the review committee for a one-year, renewable term of office; any appointments made during the year are valid for the remaining part of the year.
9. By resolution, the Commission des services juridiques appointed the following persons as the members of the review committee in 1999: Josée Payette, Manon Croteau, Pierre-Paul Boucher, Jean-Pierre Villagi, Georges Labrecque, Claire Champoux, André Meunier, Clément Fortin and Michel Charbonneau.
10. The advocates thus appointed are not employees of the Commission des services juridiques.
11. The members of the review committee are paid by means of honorariums and are not required to provide their professional services exclusively to the Commission des services juridiques.
12. The members of the review committee are paid on a fee basis, that is, only when they sit to hear applications for review or deliberate and write their decisions.
13. The administrative committee sets the review committee members' hourly rate by resolution; at present this rate is $50 per hour.
14. The review committee members carry out most of their professional activities elsewhere than at the premises of the Commission des services juridiques.
15. Each year, the review committee makes 1,000 decisions in 41 sittings.
16. The review committee members have no set working hours and are not required to be present otherwise.
17. The review committee has its own premises, secretariat, archives, waiting room, conference call system, and equipment.
18. The review committee members receive no fringe benefits except for contributions to the Régie des rentes du Québec and reimbursement of their parking expenses on presentation of vouchers.
19. The Commission des services juridiques exercises no control over the review committee members' work.
20. On November 21, 2000, the Canada Customs and Revenue Agency decided in the case of Manon Croteau that during the 1999 taxation year, Ms. Croteau held insurable employment within the meaning of the Employment Insurance Act and the Employment Insurance Regulations, as is shown in the copy of that decision adduced in support of this Notice of Appeal as Exhibit A-1.
21. The Canada Customs and Revenue Agency cited two specific grounds for that decision: first, the fact that the appellant held an office in the Commission des services juridiques; second, that the Commission is a body that is an agent of Her Majesty in right of a province, as is shown in Exhibit A-1.
22. A decision to the same effect was made in the case of Josée Payette, as will be more fully established at the hearing.
23. Notices of Assessment were then issued to all the members of the review committee in 1999, as is shown in the copies of those Notices adduced jointly in support of this Notice of Appeal as Exhibit A-2.
24. The members of the review committee as well as the Commission des services juridiques appealed from those decisions on December 15, 2000, and January 25, 2001, as is shown in the copies of the letters adduced in support of this Notice of Appeal as Exhibit A-3.
25. On April 19, 2001, the Chief of Appeals upheld the decisions by the Canada Customs and Revenue Agency, as is shown in the copies of those decisions adduced in support of this Notice of Appeal as Exhibit A-4.
[4] In reaching his decision, the respondent, the Minister, relied on the assumptions of fact set out in subparagraphs (a) to (l) of paragraph 10 of the Reply to the Notice of Appeal ("the Reply"). These subparagraphs read as follows:
[TRANSLATION]
(a) The payor was incorporated in 1972 under the legislation of the Province of Quebec.
(b) The payor is responsible for providing legal aid; its mandate includes studying and solving the legal problems of the underprivileged.
(c) Under its incorporating legislation, the payor formed a review committee in order to review decisions by the director general refusing or withdrawing legal aid to individuals.
(d) The payor's board of directors appointed advocates to the review committee.
(e) In 1999, the appellant was a member of the review committee.
(f) The appellant's duties were to make and write decisions on individuals' eligibility for legal aid.
(g) The appellant and the other members of the review committee used an office and equipment paid for by the payor.
(h) The remuneration of the appellant and the other members of the review committee was set by the payor at $50 per hour.
(i) The payor reimbursed the appellant's travel expenses.
(j) The payor paid to the Régie des Rentes du Québec the amount deducted from the appellant's remuneration.
(k) Her Majesty in right of the Province of Quebec issued an order waiving exclusion of the employees of bodies that are mandataries of the government and that were established after January 1, 1972.
(l) The payor considered that its employees were insurable for Employment Insurance purposes.
[5] It is also important to note that in paragraph 3 of the Reply, the respondent admits, in particular, the truth of paragraph 10 of the Notice of Appeal, which states that the advocates who are members of the review committee are not employees of the Commission des services juridiques.
[6] As well, the relevant part of an agreement entered into between the parties reads as follows:
[TRANSLATION]
AGREEMENT
WHEREAS in paragraph 3 of the Reply to the Notice of Appeal, the respondent has admitted that the members of the review committee are not employees within the meaning of the Employment Insurance Act;
WHEREAS the opposing party has admitted the other essential facts in the dispute set out throughout the Notice of Appeal;
WHEREAS counsel in the dispute have agreed that they will present before the Court only the arguments of law based, for the appellant, on part B of her Notice of Appeal and, for the respondent, on part B of his Reply to the Notice of Appeal:
the parties to the dispute therefore agree that they will call no witnesses at the hearing of the appeal on June 27, 2002;
the parties also agree that they have chosen to present their arguments in the case of Manon Croteau as a standard case;
the parties agree that the decision by the Tax Court of Canada in this case shall apply to all the cases in the present appeal;
...
[7] Part B of the Notice of Appeal, entitled: "Grounds the appellants intend to cite", reads as follows:
[TRANSLATION]
26. The Quebec government has reached no agreement with the Canada Employment Insurance Commission by which it would waive the exclusion set out in section 5(2) of the Employment Insurance Act and insure the members of the review committee.
26.1 All orders made to date by the Quebec government subjecting its employees or the employees of bodies that are its mandataries to the Employment Insurance Act refer to employees.
26.2 The members of the review committee are not employees of the Commission des services juridiques.
26.3 In the absence of such orders, the professional services rendered by the members of the review committee cannot constitute insurable employment under the Employment Insurance Act and the Employment Insurance Regulations.
27. For employment to be insurable within the meaning of subparagraph 6(f)(iii) of the Employment Insurance Regulations, it is not enough for an individual to hold an office in a body that is an agent of Her Majesty in right of a province; the individual must hold employment within the meaning of the Employment Insurance Act, that is, the individual must have employee status with the body.
27.1 Section 2 of the Employment Insurance Act defines "employment" as "the act of employing or the state of being employed".
27.2 Even if, hypothetically, the members of the review committee held an office in the Commission des services juridiques, which is denied, one condition would still not be met for this office to be insurable within the meaning of Act: these persons would have to hold employment with the Commission, that is, they would have to be employees of the Commission, which they are not.
27.3 The legal relationship between the Commission des services juridiques and the members of the review committee is in the nature of a contract for services, not a contract of service.
28. The members of the review committee do not hold an office within the meaning of section 2 of the Canada Pension Plan.
[8] Paragraphs 11 to 14 of part B of the Reply, entitled "Statutory provisions on which the respondent relies and grounds the respondent intends to cite", read as follows:
[TRANSLATION]
11. The respondent, the Minister of National Revenue, relies on paragraph 5(2)(c), sections 82 and 85, and subsection 93(3) of the Employment Insurance Act (S.C. 1996, c. 24); on subsection 2(1) of the Canada Pension Plan; and on subparagraph 6(f)(iii) of the Employment Insurance Regulations, as applicable to the taxation year at issue.
12. The respondent argues that the appellant held insurable employment because she held an office in a commission of Her Majesty in right of a province, in accordance with subparagraph 6(f)(iii) of the Regulations.
13. The respondent therefore argues that Employment Insurance contributions were payable.
14. The respondent argues that it made the assessments at issue in accordance with sections 82 and 85 of the Employment Insurance Act.
[9] Thus it is only on these terms that the parties have agreed to present the dispute before the Court and to call no witnesses.
[10] In order to place the dispute more clearly in context, the relevant provisions of the Act and the Regulations should be reproduced: the definition of "employment" set out in subsection 2(1) of the Act; paragraphs 5(2)(c), 5(4)(d) and 5(4)(g) and subsections 2(1) and 2(2) of the Act; and subparagraphs 6(f)(ii) and 6(f)(iii) of the Regulations. The definition of "office" set out in subsection 2(1) of the Canada Pension Plan (R.S.C., c. C-8) is also important.
[11] These provisions read as follows:
Employment Insurance Act
2.(1) In this Act,
...
"employment" means the act of employing or the state of being employed;
...
5.(2) Insurable employment does not include
...
(c) employment in Canada by Her Majesty in right of a province;
...
(4) The Commission may, with the approval of the Governor in Council, make regulations for including in insurable employment
...
(d) employment in Canada by Her Majesty in right of a province if the government of the province waives exclusion and agrees to insure all its employees engaged in that employment;
...
(g) the tenure of an office as defined in subsection 2(1) of the Canada Pension Plan.
Employment Insurance Regulations
2. Employment Included in Insurable Employment
(1) Employment in Canada by Her Majesty in right of a province that would, except for paragraph 5(2)(c) of the Act, be insurable employment is included in insurable employment if the government of the province enters into an agreement with the Commission whereby that government agrees to waive exclusion and to insure all its employees engaged in such employment.
(2) For greater certainty, employment in Canada by Her Majesty in right of a province, for the purposes of subsection (1), includes only employment in Canada of employees who are appointed and remunerated under an Act governing that province's public service, or who are employed in Canada by a corporation, commission or other body that is an agent of Her Majesty in right of the province.
6. Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment:
...
(f) employment of a person who holds an office, as defined in subsection 2(1) of the Canada Pension Plan,
...
(ii) where the person is appointed and remunerated under an Act governing the public service of a province, the government of which has, pursuant to subsection 2(1), agreed to insure all of its employees,
(iii) where the person holds the office in or under a corporation, commission or other body that is an agent of Her Majesty in right of a province referred to in subparagraph (ii); or
...
Canada Pension Plan
2. Interpretation
(1) In this Act,
...
"office" means the position of an individual entitling him to a fixed or ascertainable stipend or remuneration and includes a judicial office, the office of a minister of the Crown, the office of a lieutenant governor, the office of a member of the Senate or House of Commons, a member of a legislative assembly or a member of a legislative or executive council and any other office the incumbent of which is elected by popular vote or is elected or appointed in a representative capacity, and also includes the position of a corporation director, and "officer" means a person holding such an office;
[12] According to the definition in subsection 2(1) of the Act, the Commission referred to in subsection 5(4) of the Act is the Canada Employment Insurance Commission.
[13] From the outset, therefore, under paragraph 5(2)(c) of the Act, any employment in Canada by Her Majesty in right of a province is excluded from insurable employment. Next, there are exceptions, the purpose of which are to include employment thus excluded in insurable employment, under certain conditions. The exceptions relevant to the present case are set out in paragraphs 5(4)(d) and 5(4)(g) of the Act.
[14] First, paragraph 5(4)(d) does not automatically include employment in insurable employment if the government of a province "waives exclusion and agrees to insure all its employees engaged in that employment", to quote the wording of this paragraph. In fact, this paragraph simply allows the Canada Employment Insurance Commission to "make regulations for including in insurable employment" employment that would otherwise, under paragraph 5(2)(c) of the Act, be excluded as employment by Her Majesty in right of a province-on condition, as paragraph 5(4)(d) provides, that the government of the province waives exclusion and agrees to insure all its employees engaged in that employment.
[15] Second, paragraph 5(4)(g) also allows the Canada Employment Insurance Commission to make regulations for including in insurable employment "the tenure of an office as defined in subsection 2(1) of the Canada Pension Plan". Thus it is necessary to refer to the regulations made by this Commission to see how it decided to include an office in insurable employment, to the extent that an occupation can first be considered an office as defined in subsection 2(1) of the Canada Pension Plan. In fact, this definition is similar to the definition set out in subsection 248(1) of the Income Tax Act, although the list of inclusions differs slightly. The Income Tax Act defines an "office" as "the position of an individual entitling the individual to a fixed or ascertainable stipend or remuneration..."; subsection 2(1) of the Canada Pension Plan defines "office" as "... the position of an individual entitling him to a fixed or ascertainable stipend or remuneration...". The English versions of both these Acts use the same wording: "... a fixed or ascertainable stipend or remuneration ...".
[16] On a number of occasions, the courts have analysed the definition of "office" set out in the Income Tax Act. Three decisions are of interest in this regard: Guérin v. M.N.R., 52 DTC 118; MacKeen v. M.N.R., 67 DTC 281; and Merchant v. The Queen, 84 DTC 6215.
[17] In Guérin, the appellant, a judge of the Court of Sessions of the Peace, was a member in 1949 of a number of arbitration boards in labour disputes. The appellant included in his income the remuneration received but claimed expenses as if his services were rendered within a business and not, as the Minister claimed, within an office or employment. It should be noted that it was established that the appellant was himself obliged to pay for a part-time secretary, stationery, other office supplies, the use of a typewriter and had to incur other expenses, particularly for transportation. Although Chairman Monet of the Income Tax Appeal Board quickly determined that the appellant was not an employee, the issue as to whether the appellant held an office was raised.
[18] In his decision, Chairman Monet first noted that the appellant was expressly authorized by the Attorney General of Quebec to sit on these arbitration boards. Since the appellant was then considered on leave without pay, he did not sit on these arbitration boards as a judge. Although the remuneration provided for was set at $12.50 per sitting of an arbitration board, the number of sittings the appellant was obliged to attend was not known in advance; as a result, Chairman Monet decided that this remuneration was neither fixed nor ascertainable from the outset. In this regard, Chairman Monet wrote as follows, at page 121:
... According to the definition given above, a taxpayer should not be considered as holding an office merely because he occupies a position. The position must entitle him to a fixed or ascertainable stipend or remuneration. Failing this, the position is not an "office" within the meaning of The Income Tax Act. Does the position held by the appellant when acting as a member of an arbitration board entail a fixed or ascertainable remuneration? I do not believe so. Although it has been established that the appellant is entitled to a fee of $12.50 for each sitting of the board on which he is acting, this fact alone, in my opinion, is not sufficient. I do not believe that because a fixed remuneration is attached to a sitting it is possible to conclude that a fixed remuneration is also attached to the position itself. To reach such a conclusion we would have to say that a sitting in itself constituted the position which in my opinion is an absurdity. The remuneration of the appellant is determined by two different factors, firstly, a known factor, the remuneration of $12.50 the appellant received for each sitting, secondly, an unknown factor, the number of sittings required to bring to a successful conclusion the work to be accomplished by the arbitration board. As long as the second factor remains unknown, and it will be so until the last sitting has been held, it is impossible to establish the remuneration the appellant will receive. Nothing, it seems to me, could be more indeterminate.
By "position entitling one to a fixed or ascertainable stipend or remuneration" parliament, in my opinion, meant a position carrying such a remuneration that when accepting it a person knows exactly how much he will receive for the services he is called upon to render. I feel that this is the true meaning that must be given to "office" as defined in Section 127(1)(aa) quoted above, having regard to the persons listed whose duties constitute an office. I also believe that "office" as defined, implies continuity and permanence; it can certainly not be said that there is continuity or permanence in the duties of a member of an arbitration board.
...
(Emphasis added.)
[19] In MacKeen (supra), at issue was whether the appellant, appointed a member of a Royal Commission of Inquiry, held an office or employment or rather, had provided his services as part of a business, as he claimed. Here again, the claiming of certain expenses was central to the dispute since the rules that applied were not the same. The appellant's remuneration was set by Order in Council at $100 per day, plus $20 per day when the appellant was absent from his usual place of residence on Commission business. Provision was also made to reimburse the appellant's travel expenses on presentation of vouchers. Income Tax Appeal Board Member Boisvert decided that the appellant was not an employee and, furthermore, did not hold an office. On this last point, Board Member Boisvert wrote as follows, at page 284:
...
G.S.A. Wheatcroft in The Law of Income Tax, Surtax and Profits Tax, (1962), at page 1057, 1-107, says that: "The word 'office' denotes a subsisting, permanent, substantive position which has an existence independent of the person who fills it, and which goes on and is filled in succession by successive holders." Acting as a commissioner on a special and limited commission, royal or other, limited as to terms and duration, has none of the characteristics of an office or an employment.
...
[20] Then, referring in particular to the above-quoted passage from Guérin, Board member Boisvert concluded that the appellant did not hold an office and that his income came from a business instead.
[21] In Merchant (supra), Reed J. of the Federal Court, Trial Division, criticized the decisions in both Guérin (supra) and MacKeen (supra). In Merchant, at issue was whether the expenses incurred by a leadership candidate in a political party were deductible. In this regard, with respect to MacKeen (supra), Reed J. wrote the following at page 6217:
...
This decision was reached for a number of reasons (e.g. the position of commissioner was not a permanent one and the taxpayer had agreed, at the time of his appointment, to the travel expense amounts provided for by the government). Accordingly, I do not place too much emphasis on that part of the judgment which held the taxpayer's income not to be ascertainable. Indeed, I think such income is ascertainable. I take that word to mean that the amount to be paid is capable of being made certain, or capable of being determined but not that a definite sum be known by the office holder at the commencement of holding office. The word has to have some meaning beyond "fixed" or else it is completely redundant.
...
[22] Concerning Guérin (supra), Reed J. made the following comments at pages 6217 and 6218:
I am not convinced that at the time of taking office the taxpayer must know how much he will receive. It seems to me a per diem rate, or a specified amount per sitting renders the income sufficiently ascertainable to meet the definition in section 248(1). However, there are other factors in the Guérin case which make the income unascertainable and in my view should have served as the focus of that decision:
It has been established that the appellant must himself pay for the services of a part-time secretary and that he must also pay for the stationery he needs, for the use of a typewriter and all other supplies ... It has been further established that the appellant is often called upon to pay the transportation of his secretary and other persons acting as advisers and that often-times he has to pay for the meals of his assistants and advisers.
These it seems to me are the crucial factors in making the remuneration received, as a result of holding the position of arbitrator, not ascertainable.
[23] Given that the evidence adduced was insufficient, Reed J. decided that in the circumstances it was impossible to conclude that the remuneration of the position, as claimed by the appellant, was ascertainable.
[24] However, in commenting on the decision in Guérin (supra), Reed J. appears to assume that in that case the remuneration was not ascertainable mainly because of the expenses the appellant was obliged to incur. The Court does not agree with that position. The words "stipend" and "remuneration" mean gross income, not income net of expenses. This is clear from the wording of subsection 5(1) of the Income Tax Act. As well, the Court considers that the descriptor "ascertainable" must refer to something that can be ascertained a priori; otherwise it would have no meaning since everything can be ascertained a posteriori. Thus if the "stipend" or "remuneration" is not fixed, it must still be ascertainable in advance with at least some degree of accuracy by using some formula or by referring to certain set factors. The Court considers that this is the meaning of the decisions in Guérin and MacKeen (supra).
[25] In the present case, subsection 22(k) of Quebec's Legal Aid Act provides that the Commission des services juridiques shall form a review committee responsible for conducting the reviews provided for in sections 74 and 75 of that legislation. As well, section 74 of that legislation provides that an application for review shall be decided by a review committee made up of three members, at least one of whom shall be an advocate. According to paragraph 8 of the Notice of Appeal, the members of the review committee are all advocates, and the Commission appoints them for a one-year, renewable term of office. According to paragraph 12 of the Notice of Appeal, the members are paid on a fee basis, that is, only when they sit to hear applications for review or deliberate and write their decisions. According to paragraph 13 of the Notice of Appeal, their remuneration is set at $50 per hour. According to paragraph 15 of the Notice of Appeal, each year the review committee makes 1,000 decisions during 41 sittings. By agreement, the respondent has admitted the truth of all these facts.
[26] It is not very difficult for the Court to find that the appellants, the members of the review committee, hold an office. The review committee is a permanent entity of the Commission des services juridiques. Being appointed as a member for a one-year term of office and having other professional occupations elsewhere in no way suggests that one cannot occupy a position for a set term on a part-time basis. One can at the same time practice law and be a director of one or more share corporations. The Court does not see any incompatibility in that situation. It cannot be said that a person does not occupy a position because that person's main professional activity is exercised elsewhere than with the Commission. That said, it is not enough to occupy a position: the position must entitle the person to a "fixed or ascertainable stipend or remuneration", according to the definition set out in subsection 2(1) of the Canada Pension Plan. In the present case, it is clear that the position does not entitle a person to a fixed remuneration or stipend. The Court also considers it impossible to conclude that the remuneration is ascertainable since in this regard the facts set out in the Notice of Appeal, the truth of which the respondent has admitted, are insufficient. It is not known how many times each member is called upon to sit on the review committee or how many days or hours are spent on this activity in a given year. The information about the number of review committee sittings held and the number of review applications heard each year does not provide a reliable factor for individual members. The Court has no idea of the "stipend" or the "remuneration" that the members of the review committee were likely to receive for rendering their services; nor has any such information been adduced, except that the members are paid on a fee basis at a rate of $50 per hour. The Court considers that merely indicating the hourly rate set by the Commission des services juridiques is insufficient to establish that the position itself makes a member eligible for a "fixed or ascertainable stipend or remuneration". The Court therefore considers that the respondent, who simply admitted the truth of the facts set out in the Notice of Appeal, has in no way discharged the burden on him of establishing that the appellants, the members of the review committee of the Commission des services juridiques, held an office as defined in subsection 2(1) of the Canada Pension Plan. Thus subparagraph 6(f)(iii) of the Regulations cannot be applied to this case to include the position occupied by the appellants in insurable employment.
[27] There is more. Even if the Court assumed that the members of the review committee held an office as defined in subsection 2(1) of the Canada Pension Plan, the Court considers that subparagraph 6(f)(iii) of the Regulations cannot be applied to this case. Under subparagraph 6(f)(iii) of the Regulations, the office must be "in or under a corporation, commission or other body that is an agent of Her Majesty in right of a province". Subparagraph 6(f)(ii) of the Regulations refers to "a province, the government of which has, pursuant to subsection 2(1), agreed to insure all of its employees". Under subsection 2(1) of the Regulations, employment otherwise excluded under paragraph 5(2)(c) of the Act shall be included in insurable employment "if the government of the province enters into an agreement with the Commission whereby that government agrees to waive exclusion and to insure all its employees engaged in such employment."
[28] From the outset, the Court cannot fail to underscore that the wording of the Regulations is hardly a model of clarity. Although subsection 2(1) of the Act defines the word "employment" as "the act of employing or the state of being employed", paragraph 6(f) of the Regulations begins with the words, "... employment of a person who holds an office, as defined in subsection 2(1) of the Canada Pension Plan ...". Thus, although the holder of an office is not an employee, this wording suggests that the holder of an office nevertheless holds employment. It may be added here, as counsel for the respondent has noted, that the word "employment" has been interpreted to include more than work performed under a contract of service or a master-servant relationship and may designate, more generally, an occupation. On this point, reference may be made to the Federal Court of Appeal decision in Sheridan v. Canada (Minister of National Revenue-M.N.R.) (F.C.A.), [1985] F.C.J. 230, in which that Court relied on two Supreme Court of Canada decisions: The Queen v. Scheer Limited, [1974] S.C.R. 1046; and Martin Service Station v. The Minister of National Revenue, [1977] 2 S.C.R. 996. The word "employment" used at the beginning of paragraph 6(f) of the Regulations obviously has a broader meaning. However, the ambiguity remains in subparagraph 6(f)(ii) because an office is included in insurable employment if the government of a province has, pursuant to subsection 2(1) of the Regulations, agreed to insure all of its employees. The ambiguity persists in subparagraph 6(f)(iii), which refers to a province referred to in subparagraph 6(f)(ii), that is, a province of which the government has, pursuant to subsection 2(1) of the Regulations, agreed to insure all of its employees. One may certainly, and rightly, ask if the expression "all of its employees" covers the holders of an office referred to in an agreement required under subsection 2(1) of the Regulations or if the agreement must be specific on this aspect. In the present appeals, however, this question need not be answered since, as will be seen, there is no evidence that there is any agreement between the Quebec government and the Canada Employment Insurance Commission.
[29] At this point, another condition set out in subparagraph 6(f)(iii) of the Regulations deserves brief comment. Under subparagraph 6(f)(iii) of the Regulations, the office must be "in or under a corporation, commission or other body that is an agent of Her Majesty in right of a province". Section 19 of Quebec's Legal Aid Act states that the Commission des services juridiques is a legal person but does not state whether the Commission is a mandatary (agent) of the state, as is stated for a great many commissions and bodies, such as the Caisse de dépôt et de placement du Québec (R.S.Q., c. C-2, ss. 3 and 4) and the Commission des valeurs mobilières du Québec (R.S.Q., c. V-1.1, s. 276.1), to give only those examples. Despite that silence, in these proceedings the issue of whether the Commission des services juridiques is a mandatary of the Quebec State was not directly raised. The Court will therefore assume that the Commission does have that status, which is also probable in light of its duties and particularly the government controls exercised over it[1] under Quebec's Legal Aid Act. Nevertheless, the Court considers that subparagraph 6(f)(iii) does not apply to this case since there is no evidence of any agreement between the Quebec government and the Canada Employment Insurance Commission whereby the Quebec government would have agreed "to waive exclusion and to insure all its employees engaged in such employment". Such an agreement is an essential condition set out in subparagraph 6(f)(iii) of the Regulations by reference to subparagraph 6(f)(ii) and to subsection 2(1) of the Regulations.
[30] Counsel for the appellants referred to a number of Orders in Council or Quebec government orders by which the Quebec government agreed to insure all the employees who work for the public service and of certain bodies that are mandataries of the Quebec government. These Orders in Council or orders are: No. 491-72 (February 22, 1972); No. 1009-73 (March 28, 1973); No. 505-77 (February 17, 1977); No. 3655-77 (November 2, 1977); No. 893-81 (March 11, 1981); No. 2247-82 (September 29, 1982); No. 94-95 (January 25, 1995); and No. 1299-96 (October 16, 1996). The purpose of the last-mentioned order is specifically to cover the employees of bodies that are mandataries of the government and that were established after January 1, 1972.
[31] Counsel for the appellants first emphasized that section 91.2A of the Constitution Act, 1867, gives the federal Parliament exclusive jurisdiction to legislate in relation to employment insurance and that, as a result, a province may not decide unilaterally to make its employees subject to legislation in this regard. As well, since the Regulations require that there be an agreement between the government of a province and the Canada Employment Insurance Commission, counsel for the appellants questioned whether Quebec could legally subject employees simply by means of Orders in Council. Counsel for the appellants also emphasized the fact that the Orders in Council made by the Quebec government cover only employees working for the public service or for bodies that are mandataries of the government. According to counsel for the appellants, since the members of the review committee are not employees of the Commission des services juridiques, they are not even covered by the Orders in Council, which cover only employees and not holders of an office. Nor, according to counsel for the appellants, is there any agreement that covers office holders.
[32] At the conclusion of the hearing, the Court specifically asked counsel for the parties to send the Court their positions and comments on a certain number of points raised during the hearing. The requirement for an agreement between the government of a province and the Canada Employment Insurance Commission was one of these points. Since this point was raised in the Notice of Appeal, the Court considers it essential to ascertain the clear positions of the parties on it and on the other points raised during the hearing. In the comments he sent to the Court, counsel for the respondent deliberately refrained from making any comments on the requirement for an agreement or on the existence of such an agreement between the Quebec government and the Canada Employment Insurance Commission. Aside from the fact that this attitude by counsel representing the Deputy Attorney General of Canada is surprising and completely unacceptable, the Court can only conclude that the respondent has no position on this point or, if he has one, he prefers simply to refrain from stating it because he adduced no evidence concerning it.
[33] It is quite clear that an agreement implies consent to something by two or more parties. An Order in Council is a unilateral action that does not meet the minimum requirement of an agreement between two governments set out in subsection 2(1) of the Regulations. Failing evidence of an agreement between the Quebec government and the Canada Employment Insurance Commission that insured the appellants, the members of the review committee formed by the Commission des services juridiques, the Court considers that subparagraph 6(f)(iii) of the Regulations cannot be applied to this case.
[34] In light of the foregoing, the appeals of the appellants Josée Payette, Manon Croteau, Jean-Pierre Villagi, Pierre-Paul Boucher, Georges Labrecque, André Meunier, Claire Champoux, Clément Fortin and Michel Charbonneau, the members of the review committee of the Commission des services juridiques, are therefore allowed and the Minister's decision is varied, the appellants not having held insurable employment within the meaning of the Employment Insurance Act during the 1999 taxation year.
[35] Theappellants Josée Payette, Manon Croteau, Jean-Pierre Villagi, Pierre-Paul Boucher, Georges Labrecque, André Meunier, Claire Champoux, Clément Fortin and Michel Charbonneau not having held insurable employment within the meaning of the Employment Insurance Act during the 1999 taxation year, the appeal of the Commission des services juridiques is allowed and the assessment made by the Minister is set aside.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 17th day of October 2003.
Sophie Debbané, Revisor
[1] See, inter alia, Commission des normes du travail c. Conseil régional des services de la santé and des services sociaux de la Montérégie, [1987] R.J.Q. 841 (C.A.).