Date: 20010628
Docket: 2000-2431-EI-
BETWEEN:
DIANE LEFEBVRE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Charron, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on April 20, 2001, for the purpose of determining whether the appellant held insurable employment within the meaning of the Employment Insurance Act (the "Act") from November 6 to 26, 1998, when she was in the service of the Directeur Général des Élections du Québec, the payer.
[2] In a letter dated March 24, 2000, the respondent informed the appellant that the employment was not insurable since there was no employer-employee relationship between her and the payer during the period at issue.
Statement of Facts
[3] The facts on which the respondent relied in making his decision are set out in paragraph 5 of the Reply to the Notice of Appeal as follows:
[TRANSLATION]
(a) During the period at issue, the appellant rendered services to the payer as secretary for a board of revisors. (admitted)
(b) The appellant was not regularly employed by the employer. (admitted)
(c) During the period at issue, the appellant rendered services under the direction of the returning officer. (admitted)
(d) The appellant rendered services to the payer at office 01 of the electoral division of Lafontaine. (admitted)
(e) On November 6, 1998, the worker received training from the payer. (admitted)
(f) On November 26, 1998, the appellant completed her report and submitted it to the payer. (admitted)
(g) During the period at issue, the appellant worked for the payer for 203 hours. (admitted)
(h) During the period at issue, the appellant received from the payer the amount of $1,904. (admitted)
(i) During the period at issue, the appellant worked less than 25 days for the payer. (admitted)
[4] As indicated in parentheses following each subparagraph, the appellant admitted the truth of all the facts alleged in the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal.
Analysis of the facts in light of the law
[5] It must now be determined whether the appellant's activity is included in the concept of insurable employment, that is, whether a contract of employment existed.
[6] Case law has set out four essential tests whereby a contract of employment may be recognized. The leading case is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. Those tests are: (1) control; (2) ownership of the
tools; (3) chance of profit; and (4) risk of loss. In Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553, the Federal Court of Appeal added thereto the "degree of integration", but this list is not exhaustive.
[7] First, the Civil Code of Québec defines a contract of employment as follows:
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.
[8] However, subparagraphs 8(1)(c)(i) and (ii) of the Employment Insurance Regulations provide that:
(1) Subject to subsections (2) to (4), the following employments are excluded from insurable employment:
(c) employment of a person by Her Majesty in right of Canada, the government of a province, a municipality or a school board in connection with a referendum or election to public office if the person
(i) is not regularly employed by that employer, and
(ii) is employed by that employer in that employment for less than 35 hours in any year after 1998.
[9] According to counsel for the respondent, [Translation] "the appellant worked less than 25 days. She began on November 6 and was trained on November 6. She subsequently began working full-time on November 9 and stopped on November 26, 1998. If we add it up, starting from the 6th to the 26th, it comes out to 20 days, which is therefore under 25 days."
[10] Accordingly, the appeal is dismissed and the determination of the Minister of National Revenue is confirmed.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true on this 3rd day of December 2002.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-2431(EI)
BETWEEN:
DIANE LEFEBVRE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on April 20, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal is dismissed and the determination of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of June 2001.
|
"G. Charron" |
D.J.T.C.C.
Translation certified true on this 3rd day of December 2002.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]