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Docket: 2002-1512(EI) |
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BETWEEN: |
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LINA DEVEAULT, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on February 25, 2003, at Montréal, Quebec
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Before: The Honourable Deputy Judge J. F. Somers |
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Appearances: |
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Counsel for the Appellant: |
Roch Guertin |
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Counsel for the Respondent: |
Yacine Agnaou |
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JUDGMENT
The appeal is allowed, and the Minister's decision is varied in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 9th day of April 2003.
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"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 3rd day of May 2004.
Sophie Debbané, Revisor
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Citation: 2003TCC184 |
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Date: 20030409 |
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Docket: 2002-1512(EI) |
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BETWEEN: |
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LINA DEVEAULT, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on February 25, 2003.
[2] The appellant has appealed from the decision of the Minister of National Revenue ("the Minister") that her employment by Autocar 5 Étoiles Inc. ("the payor") during the period at issue, from May 7 to July 16, 2001, was insurable and that she had accumulated a total of 362.25 insurable hours.
[3] The burden of proof is on the appellant who is required to establish, on a balance of evidence, that the Minister's decision was unfounded in fact and in law. Each case stands on its own merits.
[4] In reaching his decision, the Minister relied on the following assumptions of fact, each of which the appellant admitted, denied or had no knowledge of:
[TRANSLATION]
(a) the payor was incorporated in November 1993; (no knowledge)
(b) the payor operated a business transporting passengers by charter tour bus; (admitted)
(c) during the summer, the payor hired as many as seven full-time drivers and three part-time drivers; (no knowledge)
(d) the appellant was hired as a driver of a minibus with a maximum capacity of 21 passengers; (admitted)
(e) the appellant might be away on trips lasting from six to eight days; (denied)
(f) the appellant was paid on the basis of a lump sum that was a percentage of the amount invoiced for the bus; (admitted)
(g) the appellant's hours of work were calculated by counting hours of driving, a portion of hours of waiting (except those recorded as release of responsibility hours), inspection hours, and hours of loading and unloading; (denied)
(h) all the hours of work calculated were recorded in a log book; (denied)
(i) the hours recorded in the log book were referred to in completing the driver's daily log, calculating the driver's off-duty hours, and calculating the driver's maximum number of hours of driving in accordance with the regulations governing the Société de l'assurance automobile du Québec; (denied)
(j) the hours of waiting recorded on the release of responsibility form were not recorded in the drivers' and the appellant's log book; (denied)
(k) the hours during which the driver was released from responsibility were established by the payor as hours allowed for tourists to visit a site, for meals, and for breaks; (denied)
(l) the payor did not pay drivers or the appellant for hours during which the drivers were released from responsibility; (denied)
(m) according to the appellant's log book, the hours of work during the period at issue totalled 362.25 hours; (denied)
The following paragraph was added at the request of counsel for the respondent:
(n) the difference between the total hours of work the appellant recorded in the daily logs and the total hours of work she stated that she worked is the total hours referred to in the letters in which responsibility was released, that is, 236 hours. (denied)
[5] Michel Duranceau, a witness for the respondent and a Quebec highway control officer, explained the regulations governing users of heavy vehicles. These regulations apply to heavy vehicles, including those of the payor.
[6] The concepts underlying compliance with the regulations, set out at page 8 of a pamphlet on hours of driving and hours of work published by the Société de l'assurance automobile du Québec (Exhibit I-1), read as follows:
[TRANSLATION]
Hours of driving
"Hours of driving" means the period of time during which the heavy vehicle is being driven and the engine is running. However, hours during which a driver is waiting at the controls of the vehicle at a customs or control station shall be considered hours of work and not hours of driving.
Hours of work
"Hours of work" means the period of time during which a driver is required by the operator or by the person offering the services of a driver to be on duty, including waiting and driving time. Hours of work include activities such as carrying out checks prior to departure, completing reports, waiting during loading or unloading, and repairing the vehicle.
A driver who is waiting to be assigned work or to deadhead to the home base shall consider the waiting time as hours of work. However, if a driver is waiting at home, the hours of waiting shall be considered off-duty hours even if they are paid.
Off-duty hours
"Off-duty hours" mean any hours during which the driver is not on duty. Hours allowed for breaks, meals, leave, vacation, and ferry crossings shall be considered off-duty hours.
[7] Page 32 of this pamphlet reads in part as follows:
[TRANSLATION]
Temporary release of drivers from their responsibilities
The Regulation provides that hours of waiting shall be considered hours of work. However, a driver may declare off-duty hours during hours of waiting, on condition that the operator confirms in writing that it temporarily releases the driver from his or her responsibilities.
For this confirmation to be valid, the following conditions shall be met:
· for the period during which drivers are released from their responsibilities, they may engage in the activities of their choice and may, if they wish, leave the location where the vehicle is parked; and
· the operator shall provide the following information in writing:
· the date;
· the duration of the period during which the driver is released from his or her responsibilities (for example, three and one-half hours);
· a clear statement that the driver is released from his or her responsibilities as well as responsibilities concerning the vehicle and the load or the passengers; and
· the operator's signature.
The confirmation document may be in facsimile or letter form. It shall remain in the vehicle throughout the driver's shift (six, seven or 13 days). A notation in the daily log is also acceptable; in this case, the driver shall indicate the name of the person who released the driver from his or her responsibilities. For example, "Released from my responsibilities by Prudence Larue, dispatcher, from 10:00 a.m. to 12:00 noon."
[8] According to Michel Duranceau, during hours when a driver is released from responsibility, the driver is no longer required to carry out his or her responsibilities. The purpose of this regulation is to prevent driver fatigue.
[9] Denis Trudel, a witness for the appellant and a bus driver, explained tour bus drivers' responsibilities as follows. The working day begins with the preparation of the bus; the driver must remain on the spot to greet the passengers. After the passengers have settled in, the driver drives the bus to the next stop. During stops for visits, the driver must remain in the bus in order to be available for passengers who might be ill, wish to rest, or simply wish to retrieve personal items from the bus; in short, the driver is on duty all day.
[10] Through her counsel, the appellant wanted to adduce in evidence as Exhibit A-1 the collective agreement governing the working conditions of driver Denis Trudel, an employee of Autobus Bourgeois-Tours Ltée (ABT). Following an objection by counsel for the respondent that this document was not applicable to the appellant or the payor in the present case, the document was filed as evidence under advisement. The objection was sustained, and the Court did not read this document.
[11] Joan Walsh, a witness for the appellant and tour guide for six years, accompanied the appellant during the trip described in the contract for the charter trip organized by Misa Tours International. The payor, with the appellant as driver, carried the tourists during that tour. The log book for that trip is appended to Exhibit A-2.
[12] According to Joan Walsh, the driver was required to be at the airport 30 minutes before the arrival of the passengers; if the plane was late, the driver was required to wait until the passengers arrived. Joan Walsh added that, during stops for visits, the driver was required to be at the bus in order to be available for the passengers for various reasons, such as being ill or retrieving personal items. For example, page 2 of the log book indicates a one-hour stop on Saturday, June 16 at 1:30 p.m. During that one-hour stop, the driver was required not to leave the bus. Joan Walsh explained the driver's responsibilities during hours of driving and hours of waiting.
[13] The appellant, who has been a driver for five years, was hired to drive a minibus with a maximum capacity of 21 passengers. The appellant was paid on the basis of a lump sum representing 25 per cent of the amount invoiced for the minibus.
[14] The itinerary of a trip from Dorval Airport to Pearson Airport in Toronto, Ontario, was adduced as Exhibit A-3. Appended to this itinerary is a form entitled [TRANSLATION] "Release of responsibility of driver", which reads in part as follows:
[TRANSLATION]
Name of driver
The above-mentioned driver is released from his or her responsibilities during the hours allowed for meals, coffee breaks and the events checked off above.
In the circumstances set out above, we release the driver from his or her responsibilities as well as from the responsibility of custody of the vehicle and of the passengers.
[15] The appellant adduced the daily logs as Exhibit A-4 and explained off-duty hours, hours spent in the sleeper compartment, hours of driving, and hours of work other than hours of driving.
[16] The appellant completed a report of her itineraries (Exhibit A-5) setting out work descriptions, hours of driving, hours of work, hours of waiting, and kilometrage.
[17] For example, at page 2 of the photocopies of the daily logs (Exhibit A-4), the appellant explained that on May 7, 2001, she left Drummondville at 3:00 p.m. and reached Montréal at 10:00 p.m. According to this exhibit, the waiting time was approximately from 5:00 p.m. to 7:00 p.m. because the passengers arrived late. However, the payor considered that time to be hours during which responsibility was released, as is noted at page 1 of Exhibit A-5; the details of that day noted on that page correspond to the details noted in the daily log.
[18] The appellant reviewed the trip contracts (Exhibit A-3), the daily logs (Exhibit A-4), and the report of her itineraries (Exhibit A-5), showing, for example, the waiting time at various stops. Page 2 of the appellant's report of her itineraries for May 8, 2001, indicates a visit to the Biodome and waiting time of one hour and 25 minutes. According to the release of responsibility form, the payor considered that stop as off-duty hours, in accordance with Quebec's Regulation respecting hours of driving, hours of work and the heavy vehicle driver's record ("the Regulation"), enacted in part by Order in Council 389-89.
[19] According to the appellant, the hours of waiting she recorded in her daily logs (Exhibit A-4) and in her report (Exhibit A-5) should be added to her hours of work. The difference amounts to 236 hours; therefore, according to the appellant, the hours of work should be 598, not 362.25.
[20] Under cross-examination, the appellant explained that hours for meals constitute waiting time and that there was no separate column in which to record hours of waiting; as a result, she had no choice but to record the hours of waiting in the off-duty hours column. However, her waiting time appears in the report (Exhibit A-5) that she herself completed, since section 2 of the Regulation, enacted in part by Order in Council 389-89, includes waiting time as hours of work.
[21] The respondent adduced in evidence as Exhibit I-4 a document prepared by the payor and entitled [TRANSLATION] "Instructions for drivers". The respondent drew the appellant's attention to the following instruction:
[TRANSLATION]
If, during your trip, the customer's requirements exceed the hours of driving permitted by law, the office must immediately be notified (no illegal logs will be tolerated).
[22] The appellant acknowledged that she recorded 70 hours per week on her application for unemployment benefits (Exhibit A-6).
[23] Alan Messier, a witness for the respondent and the president of Autocar 5 Étoiles Inc., testified at the hearing of this appeal.
[24] He explained that the hours worked are the hours declared by the driver on the daily logs (Exhibit A-4) and the summary of the daily logs (Exhibit I-3), adduced in evidence, and explained that this method is used to calculate the hours worked for all the employees. The payor has a diary and is aware of the hours worked; the employees are paid for these hours.
[25] The president of the company acknowledged that the hours the plane is late constitutes waiting time included in the "hours of work (other)" column. According to this witness, if the driver is seated in the bus waiting for the passengers because the plane is late, the driver is considered on duty.
[26] Under cross-examination, this witness acknowledged that he signed the driver's release of responsibility form as indicated in Exhibit A-3. This witness checked off the release of responsibility hours during stops, for example at the Biodome and the Olympic Stadium.
[27] Alan Messier admitted that he did not necessarily agree with the content of the release of responsibility form. He acknowledged that the hours were approximate and that he was not really able to determine the length of time the driver remained at a given stop. The only information available was the information provided by the driver; as a result, Alan Messier was unable to state how long the driver worked during the waiting time.
[28] The Minister informed the appellant of his decision that her employment during the period from May 7 to July 16, 2001, was insurable and that during that period she had accumulated a total of 362.25 insurable hours, whereas the appellant argued that she had accumulated at least 598 insurable hours.
[29] At issue is the determination of the hours of waiting. The evidence has shown that during the waiting time the appellant, as driver, waited at the bus while the tourists made specific visits. The appellant was required to be available for the passengers if they were ill or simply wanted to retrieve personal items.
[30] In fact, the appellant recorded in a personal report a total of 236 hours in waiting time at these stops. However, this total contradicts the number of hours recorded on the daily logs. The appellant used the daily log provided by the payor; since there was no space to record the waiting time, she recorded those hours in the space reserved for off-duty hours. The appellant should have recorded the hours of waiting in the space reserved for hours worked but, in good faith, she recorded them as if they were off-duty hours. The respondent obtained the daily logs from the employer and calculated 362.25 insurable hours.
[31] Heavy vehicle drivers' hours of driving and hours of work are governed by the Act respecting the Société de l'assurance automobile du Québec. Heavy vehicle owners may set hours during which responsibility is released in letters addressed to drivers. In the present case, the employer considered that the stops made by the minibus during the tourists' specific visits were hours during which responsibility was released.
[32] Two witnesses who were independent of the case explained that the driver of a charter tour bus was required to be available for the tourists if necessary during specific visits. It is normal to conclude that the hours the driver remains available close to the bus constitute hours of waiting. Under the Act respecting the Société de l'assurance automobile du Québec, the waiting time is included in hours of work.
[33] Using examples that were inapplicable, the president of Autocar 5 Étoiles Inc. attempted to explain the responsibilities of tour bus drivers.
[34] In the appellant's case, it is normal to conclude that the hours of waiting were hours that involved responsibilities, which were explained by the appellant and the two independent witnesses referred to above.
[35] It is therefore reasonable to find that the hours of waiting recorded in the personal report constituted hours worked and thus insurable hours.
[36] The Court bases its finding on the case law adduced by the appellant.
[37] In Murphy v. Canada (Minister of National Revenue - M.N.R.), [1999] T.C.J. No. 312, Judge Bonner of this court ruled that the appellant's standby hours were insurable; he summarizes the facts as follows:
[7] The Appellant argued that she was performing services while on standby, for, by remaining close to a telephone and within a twenty-five minute range of the hospital, she was doing what was required of her by the employer in exercise of the rights of the employer under the contract of employment and, in particular, the part of that contract relating to standby duty. As well, the Appellant pointed out that wages paid for hours worked on standby duty were treated as insurable earnings in respect of which an employee's premium was payable under the Act and she argued that in those circumstances it was inappropriate to treat such hours as something other than hours worked in insurable employment.
[38] This decision was upheld by the Federal Court of Appeal ([2000] F.C.J. No. 1751) on October 5, 2000.
[39] In light of the evidence, the appellant has established that the hours of waiting constituted hours worked and thus insurable hours.
[40] The appeal is allowed, and the decision is varied on the basis that the 236 hours of waiting are to be added to the 362.25 insurable hours referred to in the Minister's decision.
Signed at Ottawa, Canada, this 9th day of April 2003.
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"J. F. Somers" |
D.J.T.C.C.
Cases considered
· Chisholm v. Canada (Minister of National Revenue - M.N.R.), [2001] T.C.J. No. 238.
· Franke v. Canada (Minister of National Revenue - M.N.R.), [1999] T.C.J. No. 645.
· Redvers Activity Centre Inc. v. Canada (Minister of National Revenue - M.N.R.), [2000] T.C.J. No. 414.
Translation certified true
on this 3rd day of May 2004.
Sophie Debbané, Revisor