BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
GESTION IMMOBILIÈRE DUFOUR CINQ-MARS LTÉE.,
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on July 28, 2005, at Québec, Quebec
Before: The Honourable Deputy Judge S.J. Savoie
Appearances:
|
|
|
|
Counsel for the Intervener: |
Jocelyn Vallerand |
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Grand-Barachois, New Brunswick, this 4th day of October 2005.
Translation certified true
on this 27th day of October 2005.
Aveta Graham, Translator
BETWEEN:
DANY AYOTTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
GESTION IMMOBILIÈRE DUFOUR CINQ-MARS LTÉE.,
Intervener.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] This appeal was heard at Québec, Quebec, on July 28, 2005.
[2] The issue in this appeal is the insurability of the Appellant's employment with Gestion Immobilière Dufour Cinq-Mars Ltée (the "Payor") from May 1, 2003, to June 29, 2004, the period in issue. On December 2, 2004, the Minister of National Revenue (the "Minister") notified the Appellant of his decision that this employment was not insurable.
[3] In rendering his decision, the Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) The Payor was incorporated on July 11, 1979. (admitted)
(b) The Payor leased and managed more than 3,000 apartments. (admitted)
(c) Among other things, the Payor managed Jardins du Roi, a 65-dwelling, three-building complex owned by Pâquerette Fortin. (admitted)
(d) The Appellant was hired by the Payor as a Janitor for the Les Jardins du Roi buildings. (admitted)
(e) On April 30, 2003, the Appellant and the Payor signed a contract to this effect. (admitted)
(f) The Appellant's tasks were to see to the maintenance of the common areas, and to snow removal, lawn mowing, pool maintenance, small repairs, visits of apartments available for rental, and rent payment collection. (admitted)
(g) The Appellant received $1,100 per month as a Janitor. (admitted)
(h) The Appellant was to pay rent of $515 per month for his apartment in Les Jardins du Roi. (admitted)
(i) The Appellant had no work schedule. (denied)
(j) The Appellant organized the performance of Janitorial tasks as he saw fit. (denied)
(k) The Appellant received the $1,100 regardless of the number of hours that he actually worked. (denied)
(l) The Appellant was also paid $10 per hour for work that was not included in his Janitorial duties. (denied)
(m) The Appellant was also paid $50 for each lease of an apartment. (admitted)
(n) In his 2003 income tax return, the Appellant declared that he is self-employed and reported business income. (admitted)
(o) In 2003, the Appellant made contributions to the Quebec Pension Plan as a self-employed worker. (admitted)
(p) The Appellant used his own personal small tools in carrying out his tasks. (admitted)
(q) The Appellant entrusted some of his tasks to others. (denied)
(r) The Appellant personally chose the other people to whom he entrusted work. (admitted)
(s) The Appellant filed a complaint against the Payor with the Commission des normes du travail (the Commission) for unpaid monies. (admitted)
(t) On September 22, 2004, the Commission closed the Appellant's file without action because the Appellant was not an employee. (admitted)
[4] At the hearing, the Appellant claimed that the agreement with the Payor provided for a minimum of 25 hours of work per week. Nothing, apart for this claim, supports such a finding. The contract signed by the parties does not discuss the matter, and Maurice Bernatchez, the Payor's spokesperson, squarely contradicted this assertion. He also contradicted the Appellant's assertion that his services were required 24 hours a day, seven days a week.
[5] The Appellant did admit that the Payor accepted his method of work, however.
[6] The evidence disclosed that the Appellant called his salary "business income" in his 2003 income tax return, which was produced as Exhibit I-2. When asked to explain the T4A that he received from the Payor for the 2003 taxation year, the Appellant said that this document was a deception on the Payor's part.
[7] The evidence also revealed that the Appellant was paid regularly by cheque with no source deductions.
[8] In addition, it was shown that certain invoices that the Appellant submitted to the Payor claimed salary paid to other persons. The only explanation that the Appellant could provide was that the handwriting was not his.
[9] Mr. Bernatchez, the Payor's manager, said that the Appellant's remuneration of $1,100 per month was a lump sum, not a salary for a given number of hours. He said that some people work 40 hours a week, others more, and others less. He specified that the Payor did not intervene in the Janitors' schedule in any way. He said that the Janitors choose when and how they do the work.
[10] At the hearing, Mr. Bernatchez said that it was impossible for a Janitor to be available 24 hours a day. He specified that the Payor subscribed to an emergency building maintenance service. He added that the Payor had no control over the way in which the Janitors worked, and that the only control that it exercised was control over the result. He said that a Janitor does his work as he wants and when he wants. He testified that the Appellant admitted to him that he had entrusted the Janitorial work to other people because he was too busy looking after rentals, for which the Payor paid him $25.00 per unit. He also testified that Janitors do not always have to be available, because they can be absent, in which case the service is assured by the emergency system put in place by the Payor. In addition, the Payor showed that the Appellant was not subject to a fixed schedule. Mr. Bernatchez claims to have told the Appellant that he did not have to be on site 24 hours a day, 7 days a week because this was financially impossible.
[11] Mr. Bernatchez also testified that he knew of no situation in which a Janitor had an employment contract with the Payor. He said that all of them work as independent contractors, are self-employed and receive T4A's, and that the Appellant was no exception to this rule. No Janitor is an employee, he said. Mr. Bernatchez also said that the Appellant was under no obligation to work exclusively for the Payor. He was in no way bound to do so. He was free to work for other employers. For example, he said that certain tenants who wanted to repaint their apartments received the necessary paint from the Payor and had their apartments painted by the Janitor, whom they were responsible for paying.
[12] Since the parties have chosen to define the terms of their agreement in writing, it is useful to reproduce the document in question, which was tendered at the hearing as Exhibit I-1:
[TRANSLATION]
AGREEMENT BETWEEN
Les Jardins du Roi
Represented here by Gestion Immobilière Dufour Cinq Mars
hereinafter "the Owner"
AND
Dany Ayotte
hereinafter "the Janitor"
The parties agree as follows:
Effective July 1, 2003, or before then if the Owner so requests, the Janitor shall assume Janitorial responsibilities for the buildings located at 101 through 125 75e Rue Est and 7565 Loyola, Charlesbourg, Quebec.
As soon as a 4½-room apartment becomes available in one of these buildings, the Janitor shall move in. The rent for that apartment shall be $515 per month, including hot water, all of which shall be specified in a minimum 12-month lease to be signed as an accessory to this Agreement. Should the apartment that becomes vacant be located in the semi-basement of one of the buildings, the Janitor shall have priority to move into the first 4½-room apartment that becomes available thereafter on a higher floor (ground floor or above).
DESCRIPTION:
1.- The monthly remuneration for the Janitorial work shall be $1,000. As soon as the Janitor's spouse moves in with him, the compensation shall be increased by $100 per month to stand at $1,100 per month.
2.- A cellular telephone shall be made available to the Janitor. If the Janitor exceeds the 400 minutes per month allocated, the excess costs shall be billed to him and deducted from his remuneration.
3.- The telephone line currently in operation at Les Jardins du Roi (622-3148) shall be made available to the Janitor as soon as he occupies an apartment at Les Jardins du Roi; the "call forwarding" option shall be added if it is not already on the line. No long-distance calls shall be placed on the line without prior authorization. Any personal or unauthorized long-distance call shall be billed to the Janitor and deducted directly from his remuneration.
4.- The cost of all work not included in basic Janitorial work shall be compensated at a rate of $10.00 per hour. The work must be authorized in advance by the Owner and the declared duration of work shall be checked before payment is accepted and made.
5.- The Janitor shall keep a journal of the time allocated to all work not included in basic Janitorial work.
6.- Payment for Janitorial work ($1,000 per month) shall be made in two instalments: $485 on the 15th of each month and $515 on the 1st of each month (the latter amount shall be applied directly to the payment of rent). When the monthly remuneration is set at $1,100 per month, the cheques dated the 15th shall be increased by $100 to $585.
For work done at the hourly rate, the Janitor shall produce a detailed statement of the work authorized and performed, no later than the Monday morning that precedes the Thursday on which the pay is made. Since paycheques are issued Tuesday mornings, any delay in producing the detailed statements shall result in a delay of at least one week in the payment of remuneration. Here as well, the payments shall be made every two weeks. For information purposes, the cheques shall be issued on the following dates: FOR MAY 2003, the 1st, 15th and 29th; FOR JUNE 2003, the 12th and 26th, and so forth. Invoices must therefore be produced AT LEAST THREE DAYS BEFORE THESE DATES.
The Owner may terminate this contract at any time without prior notice.
The Janitor may also terminate this contract on 90 days' written notice.
Equipment: The Janitor shall provide his own tools, except the equipment for maintaining the common areas, snow removal and lawn maintenance.
BASIC JANITORIAL WORK CONSISTS OF THE FOLLOWING:
1.- Rent out apartments on the terms determined by the Owner, answer calls, show the apartments, fill out the application forms and fill out the leases, taking care NOT TO SIGN ANYTHING on behalf of the Owner, and submit everything to the manager without delay.
2.- Distribute renewal notices and have the tenants in question sign acknowledgements of receipt.
3.- Never give apartment keys to a new tenant or any supplier without the Owner's permission. In addition, except in an emergency, never go into an apartment without obtaining the tenant's permission in advance.
4.- See to the general supervision of the buildings covered by the contract, notably the heating, power and ventilation. If anything is in disrepair, repair or report the problem immediately; and, in the event of an emergency, do what is necessary to have the problem corrected as soon as possible.
5.- Work to be done
(a) Vacuum the common areas once a week and as needed; and, when necessary, wash the floors of the common areas, etc.
(b) Clean the laundry rooms, electrical rooms and storage rooms.
(c) Remove spots from stairway walls and handrails when necessary.
(d) Once a year, sweep the parking area, rake the grass and wash the large windows on the facades of the buildings.
(e) Replace light bulbs, fluorescent lights and fuses when necessary.
(f) Mow the lawn and remove the cut grass, if required.
(g) Remove debris from the outside and inside of the property.
(h) Sweep, remove snow and ice from the entrances and remove icicles from around the roofing when necessary; and do the same for the common and emergency exits.
(i) Notify tenants to remove their cars during snow removals.
(j) Open the pool in the spring, perform maintenance while it is in operation and close it in the fall; supervise the pool six weekends a year, making arrangements with the regular lifeguard regarding which weekends will be assigned to each.
6.- Do various small maintenance and repair jobs, including, without limitation, adjustment of locks, toilet floats, one or two cabinet panels, etc. Part changing will be done at the hourly rate or by contract as appropriate.
7.- See to maintaining order and calm in the buildings under his supervision.
8.- Keep an up-to-date list of his tenants, including their lease start and end dates.
9.- Collect rent promptly. The Janitor is required to bring the amounts collected to 1535 chemin Sainte-Foy, suite 200, no later than the 2nd day of the current month in order to avoid delays in the payment of some of the Owner's obligations. In addition, the Janitor shall remain responsible for the collected amounts until they are submitted to the Gestion Dufour Cinq-Mars office. If the Owner must send someone other than the Janitor to look for and/or collect rental payments, the Janitor may be required to pay the related costs.
10.- Supervise the garbage collection and snow removal services and report to the manager regarding any lack of service that would inconvenience tenants.
11.- Keep a copy of the keys to all apartments and do whatever may be necessary to obtain them. The keys must be kept in a safe place.
12.- See to the lock changes required by tenants with the consent of the Owner.
13.- See that all the tenants' names appear on their mailboxes.
14.- Report any tenant that, without being entitled to do so, is keeping animals detrimental to the tenants' general well-being.
15.- When necessary, and as promptly as possible, do basic cleaning of apartments that become vacant and clean electrical appliances.
16.- Both parties agree that the number of hours worked for the remuneration set out above must comply with all provisions prescribed by the Act respecting labour standards. Any overtime must be expressly authorized by the Owner.
17. The Janitor must refrain from any form of discrimination in the performance of his functions. He must also avoid any intervention that would contravene the Charter of Rights and Freedoms and the Privacy Act. He agrees to act accordingly.
ALL TASKS MUST BE PERFORMED AS NEEDED
SO THAT THE PREMISES ARE IMPECCABLE
With regard to the occupation of the apartment by the Janitor, the following is agreed to:
· if the contract ends because the Janitor has given the Owner 90 days' notice, the apartment shall be vacated upon the expiry of that period.
· if this contract has not ended by reason of the Janitor's fraud or misconduct, an agreement may be made between the parties to provide him with an additional 60 days to relocate.
· in all other cases, the premises must be vacated immediately.
AND THE PARTIES HAVE SIGNED AT QUÉBEC THIS April 30 , 2003
_________________________________
DANY AYOTTE, Janitor
____________________________________
LES JARDINS DU ROI, Owner
per André Lavoie
APPENDIX TO THE JANITORIAL AGREEMENT
BETWEEN
Les Jardins du Roi
and
Dany Ayotte
Notwithstanding the Agreement of April 30, 2003, and following the layoffs of the previous Janitors on May 12, 2003, the parties agree as follows (after a discussion with the Owner):
· for the month of May 2003 only, even though Mr. Ayotte only began his employment on the 12th day of the month, he will receive full and complete remuneration, being $1,000.
· in exchange, he will catch up on the Janitorial work that the preceding Janitors did not do (cleaning of all hallways and stairwells, washing of handrails and removal of spots, sorting of equipment and tools, removal of furniture and appliances currently in the hallways and boiler rooms, etc.)
· in short, he will put the buildings in the condition that they should have been in had the previous Janitors done their work continuously and conscientiously during the last weeks of their employment.
This remuneration will be paid as follows:
· $500 on May 22, 2003
· $500 on May 31, 2003
Thereafter, the remuneration will be paid in accordance with the terms and conditions of the original contract, namely:
· $485 on the 15th day of each month (the first payment being dated June 15, 2003)
· $515 on the 1st day of each month (the first payment being dated July 1, 2003, and applicable directly to the payment of rent for July 2003).
These two instalments will constitute payment for Janitorial costs for the month of June 2003. And so forth.
Barring unforeseeable considerations, Mr. Ayotte's lease should begin on July 1, 2003, if the previous Janitor frees his apartment for that date.
The parties have signed and accepted this document on the fifteenth day of May 2003.
________________________________
DANY AYOTTE, Janitor
____________________________
ANDRÉ LAVOIE
for Les Jardins du Roi
[13] The issue in this case is whether the Appellant held insurable employment for the purposes of the Employment Insurance Act (the "Act"). The relevant provision is paragraph 5(1)(a) of the Act, which states as follows:
5(1) Subject to subsection (2), insurable employment is:
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
[Emphasis added.]
[14] The section quoted above contains the definition of insurable employment. Insurable employment means employment under a contract of service, i.e. a contract of employment. However, the Act does not define what constitutes such a contract. In the case at bar, there is a written contract, reproduced above, which expresses the parties' intent.
[15] A contract of service is a civil law concept found in the Civil Code of Québec. The nature of the contract in issue must therefore be ascertained by reference to the relevant provisions of the Code.
[16] In a publication entitled [translation] "Contract of Employment: Why Wiebe Door Services Ltd. does not apply in Quebec and with what should it be replaced," to be published in the fourth quarter of 2005 by the Association de planification fiscale et financière (APFF) and the Department of Justice Canada in the Second Collection of Studies in Tax Law as part of a series called The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Justice Pierre Archambault of this Court, referring to all periods subsequent to May 30, 2001, describes the steps that courts must go through, since the coming into force on June 1, 2001, of section 8.1 of the Interpretation Act, R.S.C. 1985, c. I-21, as amended, when confronted with a dispute such as the one before us. Here is what Parliament declared in this provision:
Property and Civil Rights
8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
[Emphasis added.]
[17] It is useful to reproduce the relevant provisions of the Civil Code, which will serve to determine whether an employment contract, as distinguished from a contract of enterprise, exists:
Contract of employment
2085 A contract of employment is a contract by which a person, the employee, undertakes for a limited period to do work for remuneration, according to the instructions and under the direction or control of another person, the employer.
2086 A contract of employment is for a fixed term or an indeterminate term.
Contract of enterprise or for services
2098 A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay.
2099 The contractor or the provider of services is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance.
[Emphasis added.]
[18] The provisions of the Civil Code reproduced above establish three essential conditions for the existence of an employment contract: (1) the employee's prestation in the form of work; (2) remuneration by the employer for that work; and (3) a relationship of subordination. The significant distinction between a contract of service and a contract of employment is the existence of a relationship of subordination - the fact that the employer has a power of direction or control over the worker.
[19] Legal scholars have reflected on the concept of "power of direction or control" and, from the reverse perspective, a relationship of subordination. Here is what Robert P. Gagnon wrote in Le droit du travail du Québec, 5th ed. (Cowansville: Yvon Blais, 2003):
[TRANSLATION]
(c) Subordination
90 - A distinguishing factor - The most significant characteristic of an employment contract is the employee's subordination to the person for whom he or she works. This is the element that distinguishes a contract of employment from other onerous contracts in which work is performed for the benefit of another for a price, e.g. a contract of enterprise or for services governed by articles 2098 et seq. C.C.Q. Thus, while article 2099 C.C.Q provides that the contractor or provider of services remains "free to choose the means of performing the contract" and that "no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance," it is a characteristic of an employment contract, subject to its terms, that the employee personally perform the agreed upon work under the direction of the employer and within the framework established by the employer.
. . .
92 - Concept - Historically, the civil law initially developed a "strict" or "classical" concept of legal subordination that was used for the purpose of applying the principle that a master is civilly liable for damage caused by his servant in the performance of his duties (article 1054 C.C.L.C. and article 1463 C.C.Q.). This classical legal subordination was characterized by the employer's direct control over the employee's performance of the work, in relation to the nature of the work and the way it was performed. This concept was gradually relaxed, giving rise to the concept of legal subordination in the broad sense. The reason for this is that the diversification and specialization of occupations and work methods often made it unrealistic for an employer to be able to dictate or even directly supervise the performance of the work. Consequently, subordination came to include the ability of the person who became recognized as the employer to determine the work to be performed, and to control and set the conditions of the performance. Viewed from the reverse perspective, an employee is a person who agrees to integrate into the operational structure of a business so that the business can benefit from the employee's work. In practice, one looks for a certain number of indicia of the ability to control (and these indicia can vary depending on the context): mandatory presence at a workplace; a somewhat regular assignment of work; the imposition of rules of conduct or behaviour; an obligation to provide activity reports; control over the quantity or quality of the services, etc. The fact that a person works at home does not mean that he or she cannot be integrated into a business in this way.
[Emphasis added.]
[20] It must be specified that what characterizes an employment contract is not the actual exercise of direction or control by the employer, but the fact that the employer has the power to exercise that direction and control. In Gallant v. M.N.R., [1986] F.C.J. No. 330 (QL), Pratte J.A. of the Federal Court of Appeal stated:
. . . The distinguishing feature of a contract of service is not the control actually exercised by the employer over his employee but the power the employer has to control the way the employee performs his duties. . . .
[21] This Court's task, as it determines the type of Quebec contract to which the parties are bound, is to consider and follow the approach adopted by Justice Archambault of this Court in the above cited publication, whose theme he referred to in Vaillancourt v. Canada (Minister of National Revenue - M.N.R.), [2004] T.C.J. No. 685, where he wrote as follows:
15 In my opinion, the rules that govern employment contracts under Quebec law are not the same as the common law rules, and it is therefore inappropriate to apply common law decisions such as Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (C.A.) and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59 [For a more thorough discussion of the reasons for this, see the aforementioned paper on Wiebe Door, supra.]. In Quebec, courts have no choice but to determine whether a relationship of subordination exists in order to decide whether a contract is one of employment or for services.
16 The approach that must be followed is the one adopted, inter alia, by Létourneau J.A. of the Federal Court of Appeal [see also Sauvé v. Canada, [1995] F.C.J. No. 1378 (QL); Lagacé v. Canada, [1994] F.C.J. No. 885 (QL) (F.C.A.), affirming a decision of the Tax Court of Canada, [1991] T.C.J. No. 945 (QL); and Charbonneau v. Canada, [1996] F.C.J. No. 1337 (QL), though it should be mentioned that the Federal Court of Appeal, in D & J Driveway and Charbonneau, did not explicitly rule out the applicability of Wiebe Door] who determined, in D & J Driveway Inc. v. Canada (2003), 322 N.R. 381, 2003 FCA 453, that an employment contract existed based on the provisions of the Civil Code, and, in particular, on the absence of a relationship of subordination, which is the "essential feature of the employment contract." [Paragraph 16 of the decision.]
[22] Is there here a relationship of subordination between the Appellant and the Payor that would enable us to conclude that an employment contract exists? In carrying out the mandate given to this Court, I have found the reasoning of this Court's Justice Dussault helpful. Here is an excerpt of this reasoning in Lévesque v. Canada(Minister of National Revenue - M.N.R.), [2005] T.C.J. No. 183:
[TRANSLATION]
24 Furthermore, in D & J Driveway Inc. v. Canada, F.C.A., No. A-512-02, November 27, 2003, 322 N.R. 381, [2003] F.C.J. No. 1784 (QL), Létourneau J.A. of the Federal Court of Appeal stated that an employer-employee relationship does not necessarily exist simply because a person who gives out work can control its result. He put the matter as follows at paragraph 9 of the judgment:
9 A contract of employment requires the existence of a relationship of subordination between the payer and the employees. The concept of control is the key test used in measuring the extent of the relationship. However, as our brother Décary J.A. said in Charbonneau v. Canada(Minister of National Revenue - M.N.R.), [1996] F.C.J. No. 1337, [1996] 207 N.R. 299, followed in Jaillet v. Canada(Minister of National Revenue - M.N.R.), 2002 FCA 394, control of the result and control of the worker should not be confused. At paragraph 10 of the decision, he wrote:
It is indeed rare for a person to give out work and not to ensure that the work is performed in accordance with his or her requirements and at the locations agreed upon. Monitoring the result must not be confused with controlling the worker.
25 In the case at bar, is there a relationship of subordination between Ms. St-Jules and Mr. Lévesque enabling us to conclude that a contract of employment exists? Several indicia can be taken into account in ascertaining whether or not a relationship of subordination exists. In Seitz v. Entraide populaire de Lanaudière inc., Court of Québec (Civil Division), No. 705-22-002935-003, November 16, 2001, [2001] Q.J. No. 7635 (QL), Judge Monique Fradette provided a series of indicia that can help determine whether or not subordination exists. She discussed this as follows at paragraphs 60-62 of the judgment:
60 In order for there to be an employment contract, the jurisprudence requires the existence of a right of supervision and immediate direction. The mere fact that a person provides general instructions about the way in which the work is performed, or reserves the right to supervise or inspect the work, is not sufficient to convert the agreement into an employment contract.
61 A series of indicia developed by the jurisprudence enables courts to determine whether there is a relationship of subordination between the parties.
62 The indicia of control include:
- mandatory presence at a workplace
- compliance with the work schedule
- control over the employee's absences on vacations
- submission of activity reports
- control over the quantity and quality of work
- imposition of the methods for performing the work
- power to sanction the employee's performance
- source deductions
- benefits
- employee status on income tax returns
- exclusivity of services for employer
[23] It must be mentioned that the facts brought to the Court's attention at the hearing disclosed none of the aforementioned indicia of supervision. Thus, to the contrary, the evidence supports the notion that we are dealing with a contract of enterprise.
[24] In closing, it is important to recall that the Appellant had the burden of proving that the Minister's assumptions of fact were false. He did not do so.
[25] To the contrary, the testimony and documentary evidence led at the hearing supports the notion that the Appellant worked for the Payor on a self-employed basis under a contract of enterprise.
[26] Thus, during the period in issue, the Appellant was not employed in insurable employment within the meaning of paragraph 5(1)(a) of the Act or within the meaning of the Civil Code provisions cited above.
[27] Consequently, the appeal is dismissed and the Minister's decision is confirmed.
Signed at Grand-Barachois, New Brunswick, this 4th day of October 2005.
"S.J. Savoie"
Savoie D.J.
Translation certified true
on this 27th day of October 2005.
Aveta Graham, Translator
STYLE OF CAUSE: DANY AYOTTE AND M.N.R. AND GESTION IMMOBILIÈRE DUFOUR CINQ-MARS LTÉE.
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: July 28, 2005
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge S.J. Savoie
DATE OF JUDGMENT: October 3, 2005
APPEARANCES:
|
Counsel for the Appellant: |
Jérôme Carrier |
|
Counsel for the Respondent: |
Julie David |
|
Counsel for the Intervener: |
Jocelyn Vallerand |
COUNSEL OF RECORD:
For the Appellant:
Firm: Jérôme Carrier
Lévis, Quebec
For the Intervener:
Name: Jocelyn Vallerand
Firm: Gingras Vallerand Barma Laroche Amyot
Québec, Quebec
For the Respondent: John H. Sims, QC
Deputy Attorney General of Canada
Ottawa, Ontario