BETWEEN:
3234339 CANADA INC. (CRÉDICO MARKETING INC.),
and
THE MINISTER OF NATIONAL REVENUE,
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on July 5 and 6, 2005, at Montréal, Quebec
Before: the Honourable Justice Louise Lamarre Proulx
Appearances:
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____________________________________________________________________
JUDGMENT
The appeal established pursuant to the Employment Insurance Act regarding the decisions of the Minister of National Revenue on September 27, 2004, is dismissed and the decisions of the Minister are confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 15th day of September 2005.
Translation certified true
on this 9th day of January 2006.
Maria Fernandes, Translator
BETWEEN:
3234339 CANADA INC. (CRÉDICO MARKETING INC.),
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] This is an appeal of 27 decisions handed down on September 27, 2004, by the Minister of National Revenue (the "Minister") that the workers mentioned in the following paragraph held insurable employment within the meaning of the Employment Insurance Act (the "Act").
[2] The workers in respect of which the Minister's decisions were handed down are: Besner, Pierrette; Brunette, Brigitte; Brunette-Poulin, Guyanne; Chouinard, Joanne; Côté, Karine; Delapaz, Joan; Desautels, Sylvie; Duguay, Ginette; Durocher, Denyse; Ferando, Jacqueline; Fiore, Élisabeth; Fleury, Madeleine; Gendron, Marjolaine; Haghighi, Parastoo; Martin, Heatherlyn; Hébert, Maurice; Leblanc, Louise; Lefebvre, Lise; Levac, Johanne; Loiselle, Diane; Mailhot, Claire; Mayer, Fernand; Mignacca, Laurence; Morais, Pierre; Taghi-Jifroodian-Haghighi, Mohammed; Trabelsi, Youcef; and Wasti, Syed.
[3] Apart from periods that could vary slightly, the wording of the decisions was identical. I quote the decision regarding one of the witnesses in this case, Ms. Denyse Durocher:
[TRANSLATION]
. . .
Dear Madam:
This letter is in response to the appeal of a decision regarding your employment at Crédico Marketing Inc. from January 01, 2003 to September 10, 2003.
It was determined that your employment was insurable for the following reason: you were hired under a contract of service and consequently, you were an employee of Crédico Marketing Inc.
This decision was made pursuant to subsection 93(3) of the Employment Insurance Act and is based on paragraph 5(1)(a) of the Employment Insurance Act.
If you do not agree with this decision, you may file an appeal with the Tax Court of Canada within 90 days of the date on this letter. The enclosed document, entitled Appeals to the Tax Court of Canada, provides more information on this subject.
. . .
[4] On January 4, 2005, each of the workers received a letter from the Minister informing them of the Appellant's appeal. I reproduce the letter sent to Mr. Maurice Hébert, a witness in this matter:
[TRANSLATION]
. . .
Dear Sir:
We hereby inform you that Crédico Marketing Inc. (3234339 Canada Inc.) has filed an appeal with the Tax Court of Canada.
This appeal is further to the decision handed down by the Minister of National Revenue on September 27, 2004, regarding the insurability of your employment with it during the period from February 1st, 2003 to September 11, 2003.
Enclosed is a copy of Notice of Appeal 2004-4725(EI). If you wish to participate in this appeal, kindly prepare a notice of intervention and send it to the Tax Court of Canada clerk, or write to the clerk within 45 days of the date on this letter.
In addition, please attach a copy of this letter to your notice or letter and send them to one of the following offices:
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200 Kent Street 2nd Floor Ottawa, Ont. K1A 0M1 |
30 McGill Montréal, QC H2Y 3Z7 |
Sun Life Centre 200 King Street West Suite 902 Toronto, Ont. M5H 3T4 |
Pacific Centre 701 West Georgia Street 17th Floor P.O. Box 10091 Vancouver, BC V7Y 1K8 |
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Tel.: (613) 992-0901 Fax: 957-9037 |
Tel.: (514) 283-9912 Fax: 496-1996 |
Tel.: (416) 973-9181 Fax: 973-5944 |
Tel.: (604) 666-7987 Fax: 666-7967 |
. . .
[5] Note that none of the workers appealed these decisions and no one intervened in this appeal.
[6] The Notice of Appeal explains the facts and the position of the Appellant:
[TRANSLATION]
A. FACTS AND POSITION OF THE APPELLANT
1. The Appellant is a business working in the financial sector and acting as an intermediary for various financial institutions and major corporations in order to recruit new credit card holders.
2. The Appellant retains the services of subcontractors, i.e. representatives or agencies, to complete credit card application forms.
3. When working with an agency, it subcontracts other representatives to solicit credit cards.
4. For example, Ms. Lyne Tremblay works with the Appellant as a representative and also as an agency (through her corporation), through which she retains the services of other representatives called "contacts", who solicit credit card holders.
5. Of the twenty-seven (27) workers listed above, twenty-two (22) are representatives who may be described as "contacts" of Ms. Lyle Tremblay and/or of her corporation.
6. Workers Syed Wasti, Heatherlyn Martin, Mohammad Taghi, Joan Dela Paz and Fernand Mayer do not work directly with Ms. Lyle Tremblay and/or her corporation. They either deal directly with the Appellant or as "contacts" for another representative.
7. The Respondent's position is that the workers held insurable employment and should be considered salaried employees of the Appellant, not self-employed workers or independent businesses.
8. The Appellant argues that the workers in question are not salaried employees, they are self-employed workers and that these workers do not have an employer/employee relationship with the Appellant.
9. The question at issue in this appeal was also the subject of a judgment of the Court of Quebec handed down on August 31, 2004, by the Honourable Justice Daniel Dortélus. The decision of the Court of Quebec is enclosed herewith and the Appellant argues that the facts as well as the position in that case reflect the same arguments and claims submitted in this case.
10. The Court of Quebec believed that the representatives who recruit holders of credit cards issued by financial institutions in public places are not employees within the meaning of section 1 of An Act respecting the Québec pension plan and articles 2085 et seq. of the Civil Code of Québec.
11. The Court of Quebec recognized that legally, there is a real degree of autonomy between the representatives and the Appellant as well as a clear intent to form a contract of enterprise within the meaning of article 2098 of the Civil Code of Québec.
12. Hence, the Appellant exercises no control over Ms. Lyle Tremblay and/or her corporation, or over any representative or "contact", only a control of results on a production basis and for the benefit of the Appellant's clients (e.g. financial institutions).
13. Times, frequencies, places and duration of the workers' employment are determined exclusively by the workers.
14. Furthermore, the directives that the workers must follow regarding the completion of credit card applications are not from the Appellant but from the financial institutions, clients of the Appellant.
15. The Appellant provides the workers with few or no work tools.
16. Workers use their own telephones and/or pagers and their own vehicles to get to solicitation locations.
17. Gifts given to clients who agree to fill out the credit card applications are provided and paid for by the financial institutions.
18. As regards the questions on remuneration, by way of example, the Appellant received $7.00 for every completed credit card application that it provided to a financial institution, and it generally paid the workers between $4.00 and $5.50.
19. As regards Lyle Tremblay's "contacts", the Appellant agreed that pay would be negotiated between the worker and Lyle Tremblay, and the Appellant then paid the amount agreed to by both parties.
20. The workers all assume some financial risk, given the travel involved for various activities, fairs, shows and festivals, but contrary to the position taken by Respondent, the hotel room, like the other expenses, were never provided by the Appellant.
21. Generally speaking, the workers and the Appellant believe they have independent contracts, without entering into an employer/employee relationship.
22. In addition to the parties' wishes to maintain an autonomous relationship, the traditional criteria of ownership of tools, chance of profit, risk of loss and integration into the business are not conclusive enough to qualify the workers as employees of the Appellant.
[7] The facts on which the Minister based his decisions are described in the Reply to the Notice of Appeal as follows:
[TRANSLATION]
(a) the Appellant has been operating a credit card promotion business since 1996 in shopping centres, at fairs, festivals and shows;
(b) the Appellant runs her business in Quebec, the Maritimes, Ontario and in Western Canada;
(c) during the period at issue, Mr. Antoine Nohra was the Appellant's sole shareholder;
(d) the Appellant hires people to sell credit cards;
(e) during the period at issue, Lyle Tremblay supervised the workers; she had ten years' experience in the business;
(f) initially, the Appellant recruited workers by publishing ads in newspapers; after obtaining a sufficient number of workers, she recruited by word of mouth;
(g) during the period at issue, Ms. Tremblay conducted interviews to hire workers for the Appellant and organized activities in each of the locations where the Appellant wanted to do promotions;
(h) during the period at issue, the workers involved worked for the Appellant promoting credit cards from banking institutions such as Bank of Montreal, Canadian Imperial Bank of Commerce (CIBC), Visa Desjardins and major stores such as Canadian Tire;
(i) the workers rendered their services to the Appellant at shows, festivals, shopping centres and Canadian Tire stores;
(j) when hired, workers had to sign a certification and investigation authorization form so the Appellant could investigate the possible existence of a criminal record involving the workers;
(k) the workers also had to sign an agreement of confidentiality with the Appellant;
(l) furthermore, the workers had to follow a code of ethics, they had a proper dress code, they had to be polite and courteous, honest, not overly aggressive, etc.;
(m) the Appellant provided workers with all of the equipment necessary for their work: the kiosk, location rental, promotional gifts, application forms and weekly reports;
(n) Ms. Tremblay communicated with the workers to give them their work location and work schedule;
(o) the workers were required to submit daily and weekly reports to the Appellant's supervisor;
(p) the workers were required to follow precise instructions on how to complete the application forms for each client;
(q) the workers had to occasionally attend meetings on the Appellant's premises for new directives regarding their work;
(r) the workers received between $4.00 and $5.00 for every application that was approved by the Appellant;
(s) when workers were required to work outside of Montréal, their hotel room was paid for by the Appellant;
(t) the workers were paid via direct deposit every two weeks;
(u) the workers incurred no expenses as part of their work for the Appellant and she fully monitored their duties.
[8] Subparagraphs 13 (a) to 13 (c), 13 (h) and 13 (i) were admitted. Subparagraphs 13 (e) to 13 (g), 13 ( l) to 13 (n), 13 (p), 13 (q), 13 (s) to 13 (u) were denied. The Appellant had no knowledge of the facts in the other subparagraphs.
[9] Witnesses for the Appellant were Mr. Maurice Hébert, Ms. Claire Mailhot and Ms. Jacqueline Ferando. Ms. Sylvie Desautels, Ms. Ginette Duguay and Ms. Denyse Durocher testified for the Respondent. They are workers. Ms. Lyle Tremblay and Mr. Antoine Nohra then testified for the Appellant.
[10] Maurice Hébert explained to the Court that he has been soliciting clients for credit cards for eight years. He has worked for the Appellant for three years.
[11] The Appellant has bank or store contracts to solicit people to become credit card holders.
[12] Solicitation locations are either the stores themselves, shopping centres or festivals. Participation in festivals represents approximately 50% of the time of each of the representatives.
[13] Lyle Tremblay spoke to him when he represented another agency and that is how he started working for the Appellant.
[14] He works approximately two or three days a week for the Appellant. He lets Lyle Tremblay know when he is available, and she suggests and assigns him to locations where solicitation is required. If he is ill, he has to call Ms. Tremblay.
[15] He has expenses such as gas for his vehicle, the use of his vehicle, his food, telephone and sometimes photocopies.
[16] Work materials consist of forms that must be completed by or for clients applying for credit cards. A gift is often offered to people who fill out an application form. The Appellant provides the forms and gifts through Ms. Tremblay. Gifts may be key chains, playing cards or portable seats.
[17] He does not wear a uniform, but must wear a shirt and tie. In fact, common sense dictates how one is to dress in order to appeal to clientele.
[18] Ms. Tremblay asked him for his social insurance number at the outset to carry out a security investigation.
[19] At the end of the day, a verbal report is made. Mr. Hébert calls Ms. Tremblay and leaves a message on her answering machine as to the number of applications that were completed, the hours and place of work. Once a week, he sends a report of the completed forms via Priority Post at his own expense. This mailing consists of a report and the completed forms. If a form is not duly completed, it is either refused or a penalty is applied, i.e. a $2 reduction on the payment for each form completed. The Appellant double-checks the forms.
[20] From January 1st, 2005 to June 30, 2005, he worked 90 days. In Court, he said that for the rest of the year, he wished to work 110 days.
[21] The witness explained that when one or more representatives go to out-of-town festivals, the hotel room is either reimbursed or Ms. Tremblay prebooks the room. According to him, the Appellant assumes the cost.
[22] He is paid via direct deposit every two weeks.
[23] Until the Court of Quebec judgment, set forth in paragraphs 9, 10 and 11 of the Notice of Appeal, 4% of the annual remuneration was deposited in his account as vacation pay.
[24] Mr. Hébert affirmed that he considers himself a self-employed worker. He decides on his own workdays and, to a certain degree, where he works and his hours.
[25] Claire Mailhot, representative, explained her duties and work procedure. It is no different than what the preceding witness explained.
[26] She mentioned that she enjoyed having the freedom in her use of time. She reported that, if a post or hours were assigned to her, she felt free to leave before the end of her time if there were not too many clients and to remain after hours if there were more. In cross-examination, however, she admitted that if she had not gone to her post because of illness, she had to submit a doctor's note to Ms. Tremblay.
[27] She said the Appellant could check her work. She was required to wear black or navy blue attire. Meetings at Crédico are held every two months. She was free to go or not.
[28] With the Appellant's cooperation, the banking institution could organize contests among the representatives.
[29] Jacqueline Ferando also mentioned that she liked to choose her work hours and work schedule. She considers herself unsupervised. In cross-examination, she admitted that if she left the post assigned to her, she would call Ms. Tremblay. She also informed the latter regarding any vacation time she wanted to take.
[30] Sylvie Desautels has been a Crédico representative for four years. She said she works for the Appellant on a full-time basis. She could refuse assignments; however, once she agreed, she had to honour them. She had to inform Ms. Tremblay in the event of illness. The latter usually attended festivals.
[31] She confirmed, as the previous witnesses did, that the Appellant had a meeting the week prior to the hearing with the workers involved, regarding this hearing. She said that she was not asked to lie. There was, however, some pressure from the Appellant that the representatives report they were satisfied with the Appellant's position that they were self-employed workers and not employees.
[32] She believes that employee status offered her better protection than that of a self-employed worker. She was satisfied with the decision under appeal. She is sorry about the Court of Quebec decision mentioned above because, based on this decision, the Appellant stopped paying her the 4% vacation pay.
[33] She performs no other paid activity other than that performed for the Appellant.
[34] Ms. Ginette Duguay reported that Ms. Tremblay asked her to adhere to the hours. The representative provided a guide. She could not be replaced.
[35] Denyse Durocher reported that Ms. Tremblay was her supervisor. She knew four or five days in advance where she would be working. She had to report her absences. She decided on her vacation time. Therefore, each year, in the winter, she and her husband left for Floridafor four months.
[36] Lyle Tremblay operates her business under the name, Les Promotions Lyle Tremblay. She is the Appellant's subcontracted coordinator. She confirmed that at festivals or special events, she would pay for the representatives' hotel room. She asked that the representatives wear professional attire.
[37] The locations in festivals, events or shopping centres are paid for by Crédico. She looked after the reservations for upcoming events on behalf of the Appellant.
[38] She confirmed that she asked for the representative's social insurance number. This was a security measure to ensure that the person did not have a criminal record. A representative signs a confidentiality agreement. Either the Appellant or the Appellant's clients check the representatives' work, which involves recruitment work. She regularly checks the work performed by her representatives. Some training is provided for inexperienced representatives. She may reimburse the cost of gas if there are more than 100 kilometres of travel.
[39] The representatives let her know when they are available. She assigns them posts pre-determined by the Appellant. Each person works a number of different days. For some, this may be seven days a week, for another, three days. If a representative is sick, he or she must inform her so that she can assign someone else to that post. She hopes that the representative works the number of hours assigned to him or her.
[40] Mr. Antoine Nohra, president of the Appellant, explained that the only control exercised by the Appellant over her representatives is quality control. Remuneration is based on the number of persons recruited, not on an hourly rate. Gifts are usually provided by the financial institution. He has a team of employees to check the forms sent by the representatives. On-site verification of the representatives' work may be carried out by agents of his clients but the Appellant does not do so.
Argument
[41] Counsel for the Appellant argued that although the parties' intent is under review, the intent of one of the parties in this case is to establish with the workers a contract of enterprise, not a contract of employment.
[42] He pointed out that note should be taken of the extensive freedom enjoyed by the workers.
[43] With respect to the workers, there is some chance for profit or loss. They pay for their own gas, telephone costs and meals. Workers are paid according to the number of persons recruited.
[44] As regards ownership of tools, apart from the forms and gifts, representatives provide their own tools, such as telephones, computers, etc.
[45] The Appellant exercises control of the results, not the procedure. Procedure verification, if any, would be carried out by the Appellant's clients, not by the Appellant.
[46] He reiterated the testimony of Ms. Desautels-the worker who expressed a desire to be considered an employee. He noted that she is left to her own devices. She has no boss. If the work is not well done, i.e. if the forms are not duly completed, there is a reduction in remuneration. There continues to be control over the results.
[47] Representatives can take the number of vacation months they wish; so Ms. Durocher spends four months in Floridaduring the winter.
[48] Counsel for the Appellant refers to the following decisions:
Vulcain Alarme Inc. v. M.N.R., [1999] F.C.J. No. 749 (Q.L.)
671122 Ontario Ltd v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983
Wolf. v. The Queen, 2002 DTC 6853 (F.C.A.)
3234339 Canada Inc. c. S.M.R.Q., C.Q. No.: 500-80-000127-028, August 26, 2004, Daniel Dortélus J.
Livreur Plus Inc. v. Minister of National Revenue, 2004 FCA 68.
[49] From the Federal Court of Appeal ruling in Vulcain Alarme Inc. (supra), he cites the following passage:
14 We do not feel that the fact that Service Électronique Enr. and Mr. Blouin chose to perform contracts exclusively for the plaintiff made Mr. Blouin the latter's employee. Undoubtedly, Société Électronique Enr. and Mr. Blouin had by choice become dependent contractors by imposing an economic subordination on themselves. However, they were not legally bound by an exclusive contract and had not ceased to be contractors. Mr. Blouin was not working in the plaintiff's offices or workshops. Further, his comings and goings, his work hours and days were in no way integrated into or coordinated with the plaintiff's operations.
[50] Hence, counsel argues that if some workers worked exclusively for the Appellant, it was their choice and not a requirement of the Appellant.
[51] He refers to paragraphs 47 and 48 of the Supreme Court of Canada ruling in Sagaz (supra):
47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks.
48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.
[52] From the ruling by Dortélus J. of the Court of Quebec, he refers to the following passages:
[TRANSLATION]
29 Credico exercises no control or supervision over the representative's work. The only control it exercises consists of checking the completed forms sent by the representative prior to forwarding them to the bank or financial institution.
. . .
41 Representatives may solicit for other banks or financial institutions than those that have an agreement with Credico, based on the testimonies of Mr. Nora, Lyle Tremblay and Mr. Desjardins.
42 In 1998, representatives considered themselves to be self-employed workers. They do not identify themselves as Credico employees. Apart from some training provided at the beginning on how to solicit clients and how to complete the credit card application form, they get no training from Credico.
. . .
67 Based on the Respondent's ruling on the claim's objection, the completed questionnaires suggest that the majority of workers affirm that they were, in 1998, self-employed workers.
. . .
72 Representatives set their own work schedule. They themselves decide when they want to work as well as where they will work. They can have their work performed by others. They are paid for every completed form, according to a pre-established rate and assume the loss themselves when a form is not duly completed.
. . .
74 The directives on how to complete the form, originating from the financial institutions that must issue the credit cards based on the information in the forms, cannot be considered as orders or instructions from Credico as exercising control over the representatives.
. . .
87 Representatives use their telephone to communicate with Crédico, they use their own vehicle to get to the shopping centres and public places where they recruit card members. These are not employer-provided work tools.
88 As for financial risk, according to the representatives heard, they assume a risk when they spend hours and they recruit no or few members, they are not paid, according to the SMRQ, they assume no financial risk. This situation is similar to that of commissioned salespersons, and is insufficient to qualify representatives as salaried employees according to the Court.
[53] He cited paragraphs 18, 19 and 20 from Livreur Plus (supra):
18 In these circumstances, the tests mentioned in Wiebe Door Services Ltd. v. M.N.R., 87 D.T.C. 5025, namely the degree of control, ownership of the work tools, the chance of profit and risk of loss, and finally integration, are only points of reference: Charbonneau v. Canada(Minister of National Revenue - M.N.R.) (1996), 207 N.R. 299, paragraph 3. Where a real contract exists, the Court must determine whether there is between the parties a relationship of subordination which is characteristic of a contract of employment, or whether there is instead a degree of independence which indicates a contract of enterprise: ibid.
19 Having said that, in terms of control the Court should not confuse control over the result or quality of the work with control over its performance by the worker responsible for doing it: Vulcain Alarme Inc. v. The Minister of National Revenue, A-376-98, May 11, 1999, paragraph 10, (F.C.A.); D & J Driveway Inc. v. The Minister of National Revenue, supra, at paragraph 9. As our colleague Décary J.A. said in Charbonneau v. Canada (Minister of National Revenue - M.N.R.), supra, followed in Jaillet v. Canada (Minister of National Revenue - M.N.R.), 2002 FCA 394, "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".
20 I agree with the applicant's arguments. A subcontractor is not a person who is free from all restraint, working as he likes, doing as he pleases, without the slightest concern for his fellow contractors and third parties. He is not a dilettante with a cavalier, or even disrespectful, whimsical or irresponsible, attitude. He works within a defined framework but does so independently and outside of the business of the general contractor. The subcontract often assumes a rigid stance dictated by the general contractor's obligations: a person has to take it or leave it. However, its nature is not thereby altered, and the general contractor does not lose his right of monitoring the results and the quality of the work, since he is wholly and solely responsible to his customers.
[54] Counsel for the Respondent recalled the representative's daily report to Ms. Tremblay. She argued that there was control as to how to exercise the work activity since Ms. Tremblay frequently went to the work premises. She also went to festivals and events with the representatives. Counsel noted that prices are not negotiated as a contractor would do. They are imposed by the Appellant. The pay rate is identical or almost identical for all representatives.
[55] Counsel referred to paragraphs 30, 33 and 43 of the decision of Dortélus J. of the Court of Quebec to argue that the evidence revealed nothing similar:
[translation]
30 Crédico imposes no work schedule on the representatives; they decide themselves when they want to work and where they want to work.
. . .
33 In order to establish the amount of $4 to $5.50 [sic] paid for every form, Crédico takes into account the volume of forms processed by the representative.
. . .
43 In 1998, the representatives invoiced Crédico for their services, based on the amount set out in the representative's agreement (Exhibit R-1) to which they add the sales taxes (GST and QST).
[56] She referred to a ruling by Archambault J. of that Court in Les Promotions D.N.D. Inc c. Le ministre du Revenu national (intimé) et Serge Laverdière (intervenant), handed down on June 18, 2003. The reasons were delivered orally and were not requested. The judge ruled to dismiss the Appellant's appeal. The Reply to the Notice of Appeal was filed by Counsel for the Respondent to show that the facts were identical to those in question. It involved a competitor of the Appellant operating in substantially the same manner in all cases with regard to the representatives' work procedures.
[57] That response was also subject to another judgment of that Court, on July 18, 2001, in respect of worker Pierre Lalonde, working for the same company, Promotions DND Inc. c. Canada (ministre du Revenu national - M.R.N.), [2001] T.C.J. No. 480 (Q.L.). This judgment was handed down by Deputy Justice Somers. A reading of the grounds shows that the facts are strikingly similar to those of this case.
[58] The same judge handed down a judgment for a different company working in the same area of activity in Promotions G. Bibeau Inc. c. Canada (Ministre du Revenu national - M.R.N.), [2003] T.C.J. No. 367 (Q.L.). The company's appeal was dismissed and the worker was declared an employee.
[59] Counsel for the Respondent makes reference to Marathon Electric Ltd. v. Canada(Minister of National Revenue - M.N.R.), [2003] T.C.J. No. 577 (Q.L.), confirmed on October 20, 2004, by the Federal Court of Appeal ([2004] F.C.J. No. 1791 (Q.L.)), as follows:
3 Nor do we agree that the Judge erred in his appreciation of the relevant legal tests to be applied. In response to the argument that the Judge failed to give sufficient weight to the parties' intention respecting their contracts, we would note that in Wolf v. Canada, [2002] 4 F.C. 396 at para. 124, Noël J.A. observed: "This is not a case where the parties labelled their relationship in a certain way with a view to achieving a tax benefit."
[60] She argued that in Marathon, the workers were electricians that Marathoncalled on to work from time to time. That Court ruled that those individuals performed their work or trade as employees and not businesspeople.
[61] Counsel also made reference to the following decisions of the Federal Court of Appeal: Productions Petit Bonhomme Inc. v. Canada (Minister of National Revenue - M.N.R.), [2004] F.C.J. No. 238 (Q.L.) and Ambulance St-Jean v. Canada(Minister of National Revenue - M.N.R.), [2004] F.C.J. No. 1680 (Q.L.). She quoted the following passage from Productions Petit Bonhomme Inc.:
7 Pursuant to the opinions issued by this Court in Wolf v. Canada, [2002] 4 F.C. 396 (F.C.A.), the legal nature of a contract must be determined in accordance with the actual overall relationship of the parties in a constantly changing working world. The workers here are alert free-lancers who go from one producer to another and from one production to another, sometimes on a daily basis. In these circumstances, it is entirely possible to conclude that the working relationships do not have the degree of continuity, loyalty, security, subordination and integration generally associated with a contract of employment.
[62] She cited the following passage from Ambulance St-Jean (supra):
3 Although the stated intent of the parties or their mutual understanding are not necessarily determinative of the nature of their relationship, they are, however, entitled to considerable weight in the absence of evidence to the contrary, such as a behaviour which betrays or contradicts the said intent or understanding. Where the parties "have freely elected to come together in separate business arrangements rather than one side arbitrarily and artificially imposing that upon the other, so that in fact it is a sham, parties should be left to their choice and that choice should be respected by the authorities". We agree with this statement of Porter D.T. C.J. in Krakiwsky v. Canada(Minister of National Revenue - M.N.R.), 2003 T.C.J. No. 364.
[63] She also quoted the following passages from a ruling by Cuddihy D.J. of that Court, to which the Appellant was party, that is, 9049-9955 Québec Inc. et 3234339 Canada Inc. c. Canada (ministre du Revenu national - M.R.N.), [2000] T.C.J. No. 129 (Q.L.):
[translation]
57 Did the worker engaged to perform the duties described in the evidence perform them as a self-employed businessperson?
. . .
82 To answer the original question, the Appellants did not demonstrate to the Court that worker Johanne Denis was self-employed between, on, or around June 10 and August 28, 1997. The worker was paid and under the control of Credico Marketing, through persons connected like the links of a chain from beginning to end.
Conclusion
[64]The evidence in this case did not reveal facts similar to those mentioned at paragraphs 30, 33, 43 and 72 of the Reasons for Judgment of the Court of Quebec (above). The representatives do not set their own work schedules, nor do they determine their work place. They cannot be replaced by another person whom they choose.
[65]Control is exercised by Ms. Tremblay for the Appellant. It is she who tells representatives how to act and dress. She sometimes goes to work places. She attends events. She sets the work schedules. It is true that the representatives can demonstrate their availability but they must make it known in advance; the same thing applies for vacations. This availability should be sufficient to allow the distributor to provide a number of representatives who are present and on whom she can rely. Ms. Tremblay assigns work places. The Appellant finds the work places or Ms. Tremblay finds them for the Appellant. The Appellant rents or pays for the kiosks.
[66]As workers in Marathon Electric (supra), as mentioned in the last paragraph of the ruling by our Court, I do not find here any characteristic of a commercial enterprise on the workers' part. There is no argument respecting consideration for services. The workers do not seek out clients. Remuneration is paid per individual unit and set by the Appellant. It is the same for all who are accepted as representatives. The clients are the Appellant's clients. I do not believe that the evidence has shown that the Appellant allowed the representatives to work for competitors at the same time. In any case, in the facts, a representative becomes attached to his or her group and performs the work that is asked of him or her. The representative behaves as an employee, diligently and taking initiative, yet an employee all the same.
[67]We must also consider that the representatives are an essential, primary component of the Appellant's business and source of profit.
[68]Except for one representative who, at the hearing, clearly expressed her wish with regard to her status, the others clearly made no statement. However, we can only conclude that no one challenged the decision that he is an employee, and that no one intervened in this appeal. As regards the Appellant's intention, I cannot consider it because I have no evidence that it was shared.
[69]Furthermore, this Court handed down several decisions with respect to the Appellant and to other companies working in the same field as the Appellant. These decisions were indicated above. These decisions all point in the same direction: the workers are employees. Therefore, the Appellant's economic circumstances will be the same, neither better nor worse, than those of competitors.
[70]In the words of Décary, J. in Productions Petit Bonhomme Inc. (supra), I am of the opinion that the work relations in this case present a degree of the continuity, loyalty, security, subordination and integration generally associated with a contract of employment.
[71]The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 15th day of September 2005.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 9th day of January 2006.
Maria Fernandes, Translator