BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE,
[OFFICIAL ENGLISH TRANSLATION]
Appeal heard on December 2, 2005, at Montréal, Quebec.
Before: The Honourable Justice Lucie Lamarre
Appearances:
JUDGMENT
The appeal under subsection 103(1) of the Employment Insurance Act is dismissed and the decisions of the Minister of National Revenue dated January 7, 2005, in respect of the period from March 1, 2002 to May 5, 2004, in respect of seven workers, Marie-Carmel Douyon, Claude Davilmar, Nadège Pierre, Viviane Gaston Florestal, Roberte Jean, Raymonde Joseph and Patricia Horacius are confirmed, to the effect that employment insurance premiums were payable for these seven workers during the period at issue, under the provisions of paragraph 6(g) of the Employment Insurance Regulations.
Signed at Ottawa, Canada, this 5th day of January 2006.
"Lucie Lamarre"
Lamarre J.
Translation certified true
on this 25th day of May 2006
Monica F. Chamberlain, Reviser
BETWEEN:
AGENCE OCEANICA INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] This appeal involves a determination whether paragraph 6(g) of the Employment Insurance Regulations ("Regulations") applies.
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:
...
(g) employment of a person who is placed in that employment by a placement or employment agency to perform services for and under the direction and control of a client of the agency, where that person is remunerated by the agency for the performance of those services.
[2] The first issue is whether the Appellant is a placement agency.
[3] Here, the Appellant was not acting as a mere middleman. The Appellant paid the nurses on the basis of the rate that it itself set, namely $250 for seven hours work, i.e. $35.71 an hour. The Appellant also made a profit from its clients, as was admitted by Riad Brahimi, the sole shareholder in the Appellant, at paragraph 7(p) of the Response to the Notice of Appeal. Moreover, the Appellant maintained a list of its workers. The Appellant was the one who made the arrangements between its clients, the local community service centres (Centres locaux de services communautaires ("CLSC")) and the residential and long term care centres (Centres d'hébergement et de soins de longue durée ("CHSLD")) and the workers. It is apparent therefrom that the Appellant was indeed a placement agency within the meaning of paragraph 6(g) of the Regulations (see Sheridan v. M.N.R., [1985] F.C.J. no. 230 (QL) and Vendor Surveillance Corp. v. M.N.R., [2000] T.C.C. no. 620 (QL)).
[4] The second issue is whether the workers in question performed their duties under the direction and control of the clients for whom they were called upon to provide services at the request of the Oceanica placement agency. If so, they will be insurable within the meaning of paragraph 6(g) of the Regulations.
[5] Here, the workers agreed of their own volition to work with the clients of the agency, at a rate agreed to with the agency. The clients were the CLSCs or the CHSLDs.
[6] Once they had agreed to go there, can one say that they were under the direction and control of the CLSCs and CHSLDs? I understand from the evidence that the CLSCs and the CHSLDs use placement agencies to replace or complement their nursing staff. This is why the nurses referred by the agency do the same work as the nurses who are already working there and who are employees of these CLSCs or CHSLDs.
[7] Generally speaking, the workers were assigned to work for Info Santé. All their telephone calls were recorded. They had an access code to access the computer and re-transcribed all the relevant information from their telephone conversations with the patient onto a computer sheet. This procedure enabled the CLSC or CHSLD to track what had been said by each of the nurses in the event of a problem. This is undoubtedly a form of control. Furthermore, there was always a head nurse or an assistant nurse on site. Although the nurses enjoyed a degree of latitude, the presence of this head nurse also constituted a form of control and direction over the staff, whether they were nurses already employed by the CLSCs or CHSLDs or nurses from the agency.
[8] It is also apparent that the nurses were obliged to record their attendance in a register, in which their names were already listed. This is also another form of control of the attendance of the nurses for the period of work during which they were required to report.
[9] When they were assigned to home care, they had to submit a report. They had the list of patients to see, the care to be provided, and they indicated in writing what had been done. One of the workers noted in her testimony that home care was not covered by liability insurance and that she had notified the agency that she was not to be assigned to patients' homes by the clients of the agency. Once the agency had been notified of this, it contacted its clients to ensure that this did not recur. However, the evidence has shown that before this problem was raised with the agency, the nurse had complied with the instructions of the CLSC and had gone to the homes of some patients. Once the agency had been advised, this did not recur. There was accordingly control and direction exercised by the CLSC before the agency intervened.
[10] If the nurse was unable to report at the given time, she could simply find a replacement. She notified the agency that she was assuming responsibility for sending someone else if they accepted the person proposed by the nurse. Furthermore, if a nurse wanted to leave the CHSLD before the specified time, she was required to inform the head nurse (one of the nurses, Marie Carmen Douyon, even said that she had to have her authorization).
[11] These nurses considered themselves employed by the agency, since they claimed no expenses in calculating their income before Mr. Brahimi told them to do so.
[12] Furthermore, the nurses had to follow certain procedures in their duties and ask a series of specific questions.
[13] In my view, all this evidence reflects a degree of supervision of the work of the nurses by the CLSCs and the CHSLDs. Although they had the option of not reporting for work, once they were there, there was unquestionably a degree of supervision which reveals control and direction exercised by the clients of the agency.
[14] On this point, I refer to the criteria set out in 9041-6868 Québec Inc. v. Canada, [2005] F.C.J. no. 1720 (QL), 2005 FCA 334, handed down by the Federal Court of Appeal on October 17, 2005. In my view, from the moment that the workers were working for the clients of the agency, they were treated in the same way as the other employees of these clients. This is also a criterion that must be considered (see Wolf v. Canada, [2002] F.C.J. no. 375 (QL), 2002 FCA 96, paragraph 118).
[15] I am thus of the opinion that the workers are covered by paragraph 6(g) of the Regulations and that their employment is insurable.
[16] The appeal is dismissed.
Signed at Ottawa, Canada, this 5th day of January 2006.
"Lucie Lamarre"
Lamarre J.
Translation certified true
on this 25th day of May 2006
Monica F. Chamberlain, Reviser
STYLE OF CAUSE: AGENCE OCEANICA INC. AND M.N.R.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 2, 2005
REASONS FOR JUDGMENT BY: The Honourable Justice Lucie Lamarre
DATE OF JUDGMENT: January 5, 2006
APPEARANCES:
|
Agent for the Appellant: |
Riad Brahimi
|
|
Counsel for the Respondent: |
Julie David |
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario