EMPLOYMENT INSURANCE |
Livreur Plus Inc. v. M.N.R.
A-663-02
2004 FCA 68, Létourneau J.A.
13/2/04
25 pp.
Judicial review of decision by Tax Court of Canada deputy judge (judge) that employment of Patrick Duhaime and Georges Laganière insurable employment within meaning of Employment Insurance Act, s. 5(1)(a)--What parties stipulate as to nature of their contractual relations not necessarily conclusive, and Court may arrive at different conclusion based on evidence before it--If no unambiguous evidence to contrary, Court should duly take parties' stated intention into account--Where real contract exists, Court must determine whether there is between parties relationship of subordination characteristic of contract of employment, or whether there is instead degree of independence which indicates contract for services--Contracts concluded between applicant and various pharmacies, and those signed between applicant and two delivery persons in question, clearly indicated parties intended to be governed by relationship of contractor/subcontractor type--No one at any time suggested various pharmacies who had their medication delivered to their customers by applicant were latter's employers, that contract of employment existed between these parties and hence insurable employment--In terms of control, fact delivery persons subject to obligatory hours of availability, each worked in defined territory and they could not alter work schedule without applicant's authorization not conclusive in determining nature of overall relationship between parties and not sufficient to change nature of what they stated in contract--Delivery persons' obligation to file delivery reports and fact applicant checked with pharmacists to ensure goods indeed collected and delivered as agreed and to their satisfaction only evidence of control by applicant of result, result for which responsible to customers--Billing still necessary in contract for services-- Creation of procedure and system for billing does not as such indicate existence of relationship of subordination--Natural applicant would be responsible for negotiating delivery prices with pharmacies and for handling complaints, since it was applicant which contracted with pharmacies and was responsible for service to its customers--As to replacing delivery person, it appeared from subcontract duty of locating replacement and paying him belonged to delivery person himself--This clause of subcontract and evidence on this point sign of independence rather than of relationship of subordination--On ownership of work tools, evidence was three work tools required for performance of work--Most important and most costly work tool was still automobile-- This tool property of delivery persons--Test of ownership of work tools supported intention stated by parties that they were subject to contract for services--As to chance of profit and risk of loss, fact delivery persons could undertake subcontracting themselves also sign of contract for services-- Contracts and testimony established delivery persons responsible for expenses associated with use of their automobiles--Incurred all risks of loss and fluctuation in their income, especially in event of accident--Finally, delivery persons personally responsible for loss of medication and money they received from customers of pharmacies, as well as communication equipment supplied by applicant--They were exposed to risk of loss--On degree of integration, this must be assessed from standpoint of workers, not business--Question to be asked is: who owns business?--Judge did indeed ask this question, but never answered it and did not undertake any analysis of point--Messrs. Duhaime and Laganière each operate business of product transportation or delivery-- Delivery persons free to accept or refuse offers of services made by applicant--Not bound by exclusive service clause-- Evidence that one of delivery persons also delivered pizzas-- Delivery persons had no offices or premises at applicant's location--Did not have to go to applicant's location to do delivery work--Had right to refuse or accept offers of services --These factors supported contract for services--Application allowed in cases A-663-02 and A-664-02--Employment Insurance Act, S.C. 1996, c. 23, s. 5(1)(a).