[OFFICIAL ENGLISH TRANSLATION]
2000-772(EI)
BETWEEN:
CAROL LAGACÉ,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on May 22, 2001, at Québec, Quebec, by
the Honourable Deputy Judge A.J. Lesage
Appearances
Counsel for the Appellant: Luc Martel
Counsel for the Respondent: Annick Provencher
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sillery, Quebec, this 26th day of June 2001.
|
"A.J. Lesage" |
D.J.T.C.C.
Translation certified true
on this 27th day of February 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010626
Docket: 2000-772(EI)
BETWEEN:
CAROL LAGACÉ,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lesage, D.J.T.C.C.
[1] This appeal was heard at Québec, Quebec, on May 22, 2001.
[2] On November 16, 1998, the appellant asked the Minister of National Revenue (the "Minister") for a ruling on whether he had held insurable employment within the meaning of the Employment Insurance Act (the "Act") from January 2 to December 31, 1997, while working for Gestion Carol Lagacé, the payer.
[3] In a letter dated November 22, 1999, the Minister informed the appellant of his decision that the appellant had been working for his business "Gestion Carol Lagacé - Pavillon de la Jeunesse" during the period at issue. There was therefore no employer-employee relationship.
[4] By notice of appeal filed on February 14, 2000, the appellant instituted an
appeal before this Court from the Minister's decision of November 22, 1999.
[5] The truth of the Minister's assumptions of fact and conclusions enumerated in the following subparagraphs of paragraph 5 of the Reply to the Notice of Appeal was admitted by the appellant at the hearing:
[TRANSLATION]
(a) From 1986 to 1996, the appellant worked as manager for Hippobec, an independent business that managed the restaurants at the Expo-Québec pavilions and that was under contract with the Commission de l'Exposition Provinciale (now called Expo-Cité).
(b) The Commission de l'Exposition Provinciale (hereinafter called the Commission) owns a cafeteria that includes a bar and two snack bars located in the Pavillon de la Jeunesse, a restaurant counter located in the Pavillon de l'Agriculture and a restaurant counter located in the exposition's Casino du Parc in Quebec City.
(c) In late 1996, the Commission did not renew its contract with Hippobec and the appellant agreed to take on the contract for managing the restaurants located in the Pavillon de la Jeunesse, the Pavillon de l'Agriculture and the central mall.
(d) On January 10, 1997, the appellant registered with l'Inspecteur Général des Institutions Financières under the firm name "Gestion Carol Lagacé"; he was the payer's sole owner.
(e) On March 10, 1996, an agreement was signed between the Commission and the payer (signed by the appellant as president) specifying the mandate entrusted by the Commission to the payer.
(f) The agreement signed between the parties specified:
[TRANSLATION]
The Commission hereby entrusts the mandatary (the payer) with the exclusive right and the necessary powers to maintain and improve the premises described hereinafter.
The payer undertakes to promote, manage, operate, maintain and improve the premises with a view to producing a maximum amount of revenue therein.
The payer shall exercise the rights and powers arising out of this agreement in its own name and in no case in the Commission's name.
(g) In signing his contract with the Commission, the appellant provided a $5,000 guarantee to undertake to manage the restaurants during the entire year of 1997.
(i) All of the restaurants' revenues were deposited in the payer's bank account.
(k) The 1997 season was transitional and much less busy; the payer managed the restaurants for only a few days in January and February, during the ten days of Expo-Québec, and for two or three small banquets in December.
(l) The appellant estimated that he had worked between 30 and 80 hours a week and that he had worked approximately 2,000 hours during the season.
[6] A written agreement was signed on March 10, 1996. The 15-page document sets out in detail the parties' rights and obligations between the mandator, the Commission de l'exposition provinciale de Québec, and the mandatary, Gestion Carol Lagacé - Pavillon de la Jeunesse (Exhibit A-1).
[7] This agreement sets out the mandator-mandatary relationship of the parties in detail, including the remuneration of the mandatary, the appellant, as follows:
[TRANSLATION]
SECTION V - CONSIDERATION
1. In consideration of the performance of this mandate, the COMMISSION shall pay the following remuneration to the MANDATARY:
(A) A basic amount established over a period of twelve (12) months and set at $6,000.00 for 1997, payable in four equal instalments, on March 1, June 1, September 1 and December 1, 1997, this total basic amount to be established in proportion to the number of months covered by this agreement in 1997.
(B) In addition to the amount indicated in paragraph A, the MANDATARY shall receive a percentage of the net operating profits, as follows:
on the first $25,000 of net profit 4%
net profit of $25,001 to $50,000 5%
net profit of $50,001 to $100,000 6%
net profit over $100,001 7%
This portion of the profits shall be paid to the MANDATARY on or before December 31, 1997, for the portion of the 1997 fiscal year. In addition, the MANDATARY shall pay the portion of the net operating profits owing to the COMMISSION in four (4) equal instalments payable on March 1, June 1, September 1 and December 31, 1997.
This agreement was honoured by the parties.
[8] The appellant did not make a fixed income; it varied according to the business's results, which were not guaranteed; the remuneration was uncertain and subject to variations that could be significant in one direction or the other.
[9] This was not a salary agreed upon for a job requiring that the appellant work a certain number of hours since he was working at his own business, which was the carrying out of the agreement entered into between the mandator, the Commission, and the mandatary, the appellant.
[10] The appeal is dismissed and the Minister's decision is confirmed.
Signed at Sillery, Quebec, this 26th day of June 2001.
|
"A.J. Lesage" |
D.J.T.C.C.
Translation certified true
on this 27th day of February 2003.
Sophie Debbané, Revisor