Bernier v. M.N.R.

Bernier v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2011-02-17
Neutral citation
2011 TCC 99
File numbers
2010-848(EI)
Judges and Taxing Officers
Pierre Archambault
Subjects
Employment Insurance Act
Decision Content
Docket: 2010-848(EI)
BETWEEN:
JACQUES BERNIER,
Appellant,
and
MINISTER OF NATIONAL REVENUE,
Respondent,
and
Florence Productions Inc.,
Intervenor.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeal of
Josée Mongeau, 2010-992(EI),
on September 24, 2010, at Montréal, Quebec.
Before: The Honourable Justice Pierre Archambault
Appearances:
Counsel for the appellant:
Louis Sirois
Counsel for the respondent:
Anne-Marie Desgens
Agent of the intervenor:
Allan Joli-Coeur
____________________________________________________________________
JUDGMENT
The appeal by Mr. Bernier is allowed and the Minister’s determination is varied as follows: Jacques Bernier held insurable employment during the period from July 12, 2008, to August 16, 2008.
Signed at Ottawa, Canada, this 17th day of February 2011.
“Pierre Archambault”
Archambault J.
Translation certified true
On this 31sth day of May 2011
Monica F. Chamberlain, Reviser
Docket: 2010-992(EI)
BETWEEN:
JOSÉE MONGEAU,
Appellant,
and
MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeal of
Jacques Bernier, 2010-848(EI),
on September 24, 2010, at Montréal, Quebec.
Before: The Honourable Justice Pierre Archambault
Appearances:
Counsel for the appellant:
Louis Sirois
Counsel for the respondent:
Anne-Marie Desgens
____________________________________________________________________
JUDGMENT
The appeal by Ms. Mongeau is allowed and the Minister’s determination is varied as follows: Josée Mongeau held insurable employment during the period from July 27, 2009, to July 31, 2009.
Signed at Ottawa, Canada, this 17th day of February 2011.
“Pierre Archambault”
Archambault J.
Translation certified true
On this 31sth day of May 2011
Monica F. Chamberlain, Reviser
Citation: 2011 TCC 99
Date: 20110217
Docket: 2010-848(EI)
BETWEEN:
JACQUES BERNIER,
Appellant,
and
MINISTER OF NATIONAL REVENUE,
Respondent.
and
Florence Productions Inc.,
Intervenor,
and
Docket: 2010-992(EI)
JOSÉE MONGEAU,
Appellant,
and
MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Archambault, J.
[1] Jacques Bernier and Josée Mongeau have appealed from the determinations by the Minister of National Revenue (Minister) that they were not engaged in insurable employment under a contract of service (employment contract) with their respective payors. In Mr. Bernier’s case, the payor is Florence Productions Inc. (FPI) and the period in issue is from July 12, 2008, to August 16, 2008 (relevant Bernier period). FPI also filed a notice of intervention. In Ms. Mongeau’s case, the payor is Les Productions Kinesis inc. (PKI) and the period covered by the Minister’s determination is from July 27, 2009, to July 31, 2009 (relevant Mongeau period). PKI did not file a notice of intervention and no representative of the company testified at the hearing.
[2] The appeals by Mr. Bernier and Ms. Mongeau were heard on common evidence because the facts were common to the two appeals, in particular the fact that both of their employment contracts were governed by a “Video Collective Agreement”, an agreement between the Association des producteurs de films et de télévision du Québec (APFTQ) and the Association des professionnel‑le‑s de la vidéo du Québec (APVQ), represented by the Alliance québécoise des techniciens de l’image et du son (AQTIS). Among other things, it provides for minimum working conditions. Both appellants are video technicians, and more specifically camera assistants who worked for film production or television production companies.
[3] Both appellants contested the Minister’s determination and stated that they had been employed under a contract of employment and had held insurable employment during their relevant periods.
[4] In making his decision concerning Mr. Bernier, the Minister relied on the following presumptions of fact, set out in paragraph 16 of the Reply to the Notice of Appeal:
[Translation]
16. In making his determination, the Minister determined that the appellant was not engaged in employment under a contract of service, based on the following presumptions of fact:
(a) the payor was incorporated on February 4, 2008; (noted)
(b) the payor’s majority shareholder is Appartement 11 Productions Inc; (noted)
(c) the majority shareholder of Appartement 11 Productions Inc is Jonathan Finkelstein who is also a director of the payor; (noted)
(d) the payor operated a television program production business; (admitted)
(e) during the period in issue, the payor was the producer of a creation by Jonathan Finkelstein for which Nathalie Mayotte was the project manager and Lori Brau[n] was the production manager; (admitted)
(f) the appellant was retained to replace Sébastien Cassou who was determined by CRA to be a self-employed worker, a determination that Mr. Cassou did not appeal; (not known)
(g) the appellant was retained with the same conditions of employment as Mr. Cassou and for a fixed term for a children’s television program project for which five episodes in the series were filmed in the United States and others were filmed in British Columbia and Quebec; (not known)
(h) the appellant was retained primarily as technical director and also as assistant cameraman; (denied)
(i) that work assignment was intended to enable the appellant to work full days; (not known)
(j) there was a written contract between the parties; (admitted)
(k) as technical director, the appellant had to go to the filming site before the crew to catalogue the scene, among other things, and he had to supervise other workers; (denied)
(l) as assistant cameraman, the appellant had to make sure the equipment, cameras and short-wave radios, was available for the artistic staff on the filming sites; (admitted)
(m) the appellant was under the supervision of the production manager; (admitted)
(n) the payer gave the appellant, like everyone involved in the project, including the managers, a work schedule every day that showed the break times, and in particular the various activities, hour by hour, to make sure that the work was done in order, synchronizing filming and the work schedule; (admitted)
(o) the appellant had to work in a team so the project could be completed; (admitted)
(p) the appellant’s pay was decided by the payor; (denied)
(q) for his technical director work (denied), the pay was decided following negotiations between the parties; (admitted)
(r) for the assistant cameraman pay, the payor adhered to the rate established by the Alliance québécoise des techniciens de l’image et du son (AQTIS); (admitted)
(s) the assistant cameraman work is unionized (admitted), while the technical director work is not; (denied)
(t) although the payor was required only to pay all benefits associated with the pay for the position of assistant cameraman, it paid those benefits on the appellant’s entire pay. (denied)
[Emphasis added.]
[5] The facts assumed by the Minister in making his determination in Ms. Mongeau’s case are set out in paragraph 15 of the Amended Reply to the Notice of Appeal:
15. In making his determination, the Minister determined that the appellant was not engaged in employment under a contract of service, based on the following presumptions of fact:
(a) Les Productions Kinesis inc was incorporated on August 14, 1997; (no evidence to the contrary)
(b) the equal shareholders in the payer are Stéphane Tanguay and Cédric Bourdeau; (no evidence to the contrary)
(c) the payer is a film production company specializing in long and short feature films; (not known)
(d) the payer’s place of business is in Montréal; (not known; no evidence to the contrary)
(e) the payer retained the appellant as a camera assistant; (admitted)
(f) there was a written contract between the parties; (admitted)
(g) the contract was signed on July 27, 2009; (not known)
(h) in the contract, the payor guaranteed the appellant five days’ work; (admitted)
(i) the appellant’s duties included helping with photography (admitted) and assessing lighting; (denied)
(j) the appellant was assistant to François Messier, lead cameraman, and followed his orders; (admitted)
(k) the appellant had to work closely with the production team to ensure the high quality of the film product while keeping to the schedule established by the payor; (admitted)
(l) the appellant had to arrive on the set at the times set by the director or producer, generally at the end of the work day for the next day; (admitted)
(m) the appellant worked variable hours during the period in issue; (admitted)
(n) the appellant could leave the set only when the producer gave the order; (admitted)
(o) the appellant used the payor’s equipment, except her clapper board; (admitted)
(p) the appellant is a member of the Alliance québécoise des techniciens de l’image et du son (AQTIS); (admitted)
(q) the appellant was paid an hourly rate of $25.25, 50% of which would be given to her if the production was profitable, as AQTIS requires; (admitted)
(r) source deductions were made by the payor from the appellant’s pay, as specified in the contract and required by AQTIS, amounting to 7.5% of her pay, as a contribution to the AQTIS group RRSP, the AQTIS group insurance plan and her 2.5% union dues; (admitted)
(s) the appellant reported the income from the payor on her 2009 income tax return as income from self-employment and claimed expenses against that income; (denied)
(t) the payor did not control how the appellant performed her duties; (denied)
(u) the appellant was not integrated into the payor’s business; (denied)
(v) the services the appellant performed were not limited to the services she offered the payor; (denied)
(w) the relationship between the appellant and the payor exhibited no continuity or loyalty. (denied)
[Emphasis added.]
[6] To describe the role of AQTIS and certain practices in the video industry in Quebec, the appellants called Frédéric Lussier‑Cardinal, an industrial relations consultant who had been employed by AQTIS for several months, to testify. He holds a diploma in industrial relations that was granted in 2010. He is also a member of the Quebec Professional Order of Industrial Relations Consultants.
[7] Mr. Lussier-Cardinal described AQTIS as an association of freelances[1] who work as image and sound technicians. AQTIS’s purpose is to represent the interests of its members, for example by negotiating and signing collective agreements. It comprises 126 categories of professionals or technicians and has about 3,000 members in good standing.
[8] According to Mr. Lussier-Cardinal, APFTQ is an association of 150 to 170 production firms, including FPI and PKI. The law applicable to the video collective agreement is described in section 1.01 of the agreement:
a) This agreement is made, in part, pursuant to the Act respecting the professional status and conditions of engagement of performing, recording and film artists (R.S.Q., c. S-32.1) (hereinafter the “Act”[2]) further to the recognition granted to the APVQ by the Commission de reconnaissance des associations d’artistes et des associations de producteurs (hereinafter the “Commission”) by its decision of July 12, 1993, for all positions recognized as those of artists on July 12, 1993, or by subsequent;
b) With respect to positions not recognized by the Commission as those of artists, this agreement is made pursuant to the Civil Code of Quebec.
[Emphasis added.]
[9] A number of provisions of the collective agreement describe the scope of the agreement. The most relevant for the purposes of this case are sections 1.03 and 1.05:
1.03 This agreement pertains and applies to all technicians, including those providing their services through a corporation, hired by a producer for the production of an audiovisual work in video or digital format for which the primary market is broadcast (live or delayed) or theatrical release, for the following positions:
(a) for drama productions recorded in film style, the agreement applies to the positions listed in Table 1 of Appendix D
(b) for other productions, the agreement applies to the positions listed in Table 2 of Appendix D
1.05 This agreement does not apply to a producer’s permanent employees.[3]
[Emphasis added.]
[10] And section 1.09 of the agreement describes its purposes:
1.09 The purpose of this collective agreement is to establish the minimum working conditions for technicians holding any of the positions to which it applies, to promote harmonious relations between the parties and to set out a procedure for settling grievances.
[Emphasis added.]
[11] The minimum working conditions laid out in the act include a minimum wage scale that is set out at pages 73 to 75 of the agreement (Exhibit A-1). Mr. Lussier-Cardinal also confirmed that AQTIS encourages its members to negotiate pay higher than the minimum standards set out in the collective agreement.
[12] The collective agreement provides for individual written agreements to be signed by a producer and a technician. Appendix A to the collective agreement consists of an employment contract. The form shows the position, pay and working conditions. The employment contract between Mr. Bernier and FPI and the contract between Ms. Mongeau and PKI reflect that form. The individual employment contract stipulates that the parties acknowledge that the collective agreement is incorporated into the contract as if it were set out therein in full (see Exhibits A‑3 and A‑6, and Exhibit A‑1 page 51). The individual contract is generally signed by the production manager and technician. It provides for the hourly pay rate, the number of guaranteed days of work and the dates when the work is to be performed, among other things. In the individual contract, the technician authorizes the producer to deduct from each pay an amount equivalent to a specified percentage of that pay, including vacation pay, joint RRSP contribution, APVQ group insurance premiums and union dues.
[13] That provision of the individual contract complies with section 14.09 of the collective agreement, which provides:
The producer agrees to withhold all source deductions from the technician’s remuneration and to pay the vacation indemnity in accordance with the applicable laws.
This section does not apply to technicians providing their services through a corporation.
[Emphasis added.]
[14] One of the applicable laws referred to by section 14.09 and cited by Mr. Lussier-Cardinal was the Act to promote workforce skills development and recognition, R.S.Q. c. D-8.3 (Skills Act).[4]
[15] It is worth noting section 1, which describes the purpose of the Act:
1. The purpose of this Act is to improve workforce qualifications and skills through investment in training, concerted action between management, unions and community partners and the education sector, the development of training modes and the recognition of employed workers’ skills. …
[Emphasis added.]
[16] Section 3 of the Skills Act relates to employers:
Every employer whose total payroll for a calendar year exceeds the amount fixed by regulation of the Government is required to participate for that year in workforce skills development by allotting an amount representing at least 1% of his total payroll to eligible training expenditures.
[Emphasis added.]
[17] There are regulations providing that only employers whose payroll is over $1 million must contribute. Of the 150 or 170 members of APFTQ, some 50 production firms are considered to be large firms, and according to Mr. Lussier-Cardinal, a large majority of them contributes to funding the Regroupement pour la formation en audiovisuel du Québec (RFAVQ), which was recognized in 2008 under the Skills Act. The president of the RFAVQ is a member of AQTIS and the vice-president is a member of APFTQ.
[18] According to the interpretation of the individual employment contracts adopted by Mr. Lussier-Cardinal, they create an employment relationship between the technicians and the production firm. In support of that argument, he referred to Appendix B of the video collective agreement, where there is a timesheet on which various information the production firm’s accountants can use to calculate and pay the technician is set out. In particular, it shows the time for starting work, the time of meal breaks, traveling time, the type of recording and the total hours worked and hours guaranteed. It also shows the 4% vacation pay, calculated on total pay. However, I note that it also has the calculation for GST and QST, [Translation] “if applicable” (see p. 50 of the video collective agreement).
[19] The deductions made under the applicable laws, as indicated by Mr. Lussier-Cardinal, include the contribution that the production firms must pay under the Skills Act.
[20] In support of his assertion that AQTIS considers the individual employment contracts to be contracts of service and not contracts for services, he noted that AQTIS intervened in the bankruptcy of the production Loft Story IV, a program produced for the 2007 TQS season. AQTIS succeeded in having 115 of its members (who did not provide their services through a corporation) considered to be preferred creditors in the distribution of the bankrupt’s assets, as employees, under paragraph 136(1)(d) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3 (see Exhibit A‑2).
[21] On cross-examination, Mr. Lussier-Cardinal acknowledged that the individual employment contracts did not stipulate that the pay was wages or that the technicians were employees. The individual employment contract does not specify the nature of the contract. It is referred to only as “employment contract”.
[22] The collective agreement[5] contains the following provisions for replacing technicians:
Replacement
6.18 Unless otherwise indicated in the employment contract, technicians may not have another technician replace them without the producer’s prior written authorization, which shall be refused only with reasonable justification.
Authorization for replacement must be requested at least seven (7) days before the scheduled workday.
Justified absence
6.19 A technician’s absence during the term of contract is justified by serious reasons. The technician must notify the producer at least twenty-four (24) hours in advance, except for reasons of illness or circumstances unforeseeable or out of the technician’s control, in which case the technician must notify the producer as soon as possible, failing which the provisions of Paragraph c) of Section 6.17 shall apply.
[Emphasis added.]
Ÿ Jacques Bernier
[23] As noted earlier, Mr. Bernier and Ms. Mongeau each signed an individual employment contract. However, for the purposes of these reasons, it is preferable to deal with the facts relating to each case separately. The report on an appeal prepared by the appeals officer sets out the relevant facts relating to Mr. Bernier’s case (Exhibit A‑4):
Information obtained from the worker, Jacques Bernier:
1. The payer is the producer of a children’s television show called “In the Real World.” The program was later renamed “Real World.”
2. There were several persons in charge of the daily activities of the payer: Jonathan Finkelstein, the head producer, Allan Joli-Coeur, Nathalie Mayotte and Lori Braun.
3. The worker was hired to provide services as a technical director and assistant camera man.
4. It was the payer that had contacted the worker to offer him the position. The worker’s name appears on a list of unionized employees. These lists are used as [sic] by potential employers to recruit for certain positions.[6]
5. The worker has 30 years of experience in the film industry.
6. The worker was hired to replace Sébastien Cassou who took time off after the birth of his child. An insurability decision rendered for Sébastien Cassou found him to be an independent worker. Mr. Cassou did not appeal the decision.
7. The worker was hired under a written, formal AQTIS (Alliance québecoise [sic] des techinciens [sic] du [sic] l’image et du son) contract. The contract was signed in Montréal, Québec. The contract was presented to the worker by Lori Braun. She explained the terms and conditions to the worker. (TAB 1)
8. The worker was hired for a determined period of time. He was to provide services from July 12 to August 16, 2008 for approximately 12 working days.
9. The worker performed services for the payer on location, in Québec, British Columbia and in the USA.
10. The working schedule was set by the payer. The worker received from the payer every morning an instruction sheet which outlined the daily working plan and schedule.
11. The worker’s daily activities were supervised by the payer. Lori Braun, the director of production, was the worker’s immediate supervisor.
12. The worker had to fill out time sheets on a weekly basis. These were handed in to Lori Braun. The payer kept track of the worker’s hours because he was remunerated for his overtime.
13. The worker was remunerated every two weeks by a check made out to his name.
14. As per contract, he was paid at the rate of 375 $ per day for a 12 hour workday. Any hours worked above that were paid at the overtime rate.
15. The rate of remuneration used by [sic] determined by the artist’s union (AQTIS). The union sets the minimum daily rate. It is possible to negotiate a higher amount with the payer. The worker was receiving about 25$ more per day than the going union rate.
16. As per contract and union regulations, the payer paid a portion of the union dues, medical insurance and the worker’s RRSP contributions.
17. Initially, the worker did not receive any compensation for his vacations. However, following a decision by the Commission des norms [sic] de travail, the payer paid the worker his 4% vacation entitlement.
18. As per contract, the payer paid all of the worker’s travelling expenses. He was remunerated at a special rate for his travelling days. In addition, the worker received a per diem from the payer when travelling.
19. The payer supplied all of the tools and equipment required for the job.
20. The only [sic] worker provided his own tool belt and small tools, such as a screw driver, etc…
21. The worker raised the question of his status several times. He discussed the issue with Lori Braun. He remembers how surprised everyone was when there were no deductions made on the paychecks [sic].
22. Lori Braun had told the worker that his status could be modified to that of an employee if he accepted a 15% cut in salary. The worker needed the money and did not accept the cut.[7]
23. On another occasion, in order to explain his status the worker was told by Ms. Mayotte who got the information from the payer’s lawyer, that contracts under 14 weeks were treated as independent contracts[8] those longer than 14 weeks were treated as salaried contracts.[9]
24. The worker believes that he was an employee because he was always treated as such by other payers when providing the same service. He also feels that the fact that he signed a union contract, that the payer set his schedule, provided the tools for the jobs, supervised him and that he was remunerated as per union rules for overtime, medical insurance, union dues and RRSP contributions, made him an employee.
Information received from the payer’s representative, Alan [sic] Joli-Coeur:
25. The payer’s representative confirmed much of the information provided by the payer. He clarified some of the facts:
26. Jonathan Finkelstein is the sole shareholder of the payer. He is also the creator of the program. Nathalie Mayotte was the project producer and Lori Braun was the director of production.
27. The worker was hired to provide services as an independent. It is the payer’s policy to always fully explain to all workers the type of contract they are signing and their status. Lori Braun met with the worker. She presented the contract to him and explained the status of independent. The payer has no doubt that the worker with his numerous years of experience in the industry understood his status and the contract that he was signing.
28. It is an accepted practice in the filming industry that those who are hired for “director” positions are hired as independents and those that are hired as executors, i.e. cameramen are hired as employees. In addition, participants in short filming projects use mostly independent workers; long television series usually hire employees. The worker was hired for a short television project.
29. The worker was referred to the payer. He replaced Sébastien Cassou, who was initially hired for the project. The terms of hiring were the same for both individuals.
30. The worker was hired to provide services primarily as a technical director and second as an assistant cameraman. The assistant cameraman position was used as a “filler” to allow the worker to do a full day’s work. The position of technical director is not a unionized position; whereas that of the assistant cameraman is. Had the worker been hired to work as an assistant cameraman only, he would have been considered an employee.[10]
31. The payer gave the worker an active AQTIS contract to sign because it outlined all of the conditions set for the assistant cameraman position. The AQTIS does not have a contract for the technical director because it is not a unionized position.
32. The fact that the worker signed a union contract should not be used as a determining factor to establish the worker’s status. The worker’s situation was particular in that he was hired to fill two positions. His primary duty was that of the technical director and his secondary duty was that of the assistant cameraman. Therefore, the fact that the primary position is that [sic] of an independent nature should be considered when determining status rather than the fact that a union contract was used.
33. Everyone involved in the project, including all director [sic] and workers, received a daily “call sheet.” This is standard practice in the industry. The call sheet outlines the daily schedule, breaks and activities. This is done in order to ensure that the work is carried out in an orderly, synchronized and timely manner.
34. The daily schedule was determined by the payer based on the required shooting time.
35. The worker worked as part of a team. The work done by the worker was supervised by the producer. The worker as a technical director, in turn, supervised the work of other individuals.
36. The worker’s remunerated [sic] was determined in the following manner: for his work as an assistant cameraman the rate set by the AQTIS was used and the rate of pay for his was [sic] as a technical director was negotiated. It was Nathalie Mayotte and Lori Braun that negotiated the pay of technical director with the worker.
37. Although the payer was only required to pay all of the benefits as set by the AQTIS for the assistant cameraman portion of remuneration only, the payer paid the benefits on the entire amount paid to the worker.[11]
38. The payer’s representative, who is the in-house legal advisor, never told anyone that a 14 week criterion was used to determine the status of contracts. He never heard of this.
39. Although the payer’s representative is unaware as to whether the worker was made an offer to accept a 15% salary cut in order to become salaried, it is an offer that was made to someone in the past.
40. The worker had contested his employment status with the Quebec Minister of Revenue. The decision was that the position held by the worker was that of an independent.[12]
41. There exists a possibility of filing a grievance with the AQTIS regarding any irregularities. The worker who is well aware of this option did not choose to exercise it.[13]
42. The payer agreed to pay the worker his 4% following the Commission des norms [sic] de travail decision because the amount was minimal and not worthwhile contesting. As well, the payer wanted closure and was looking to put the issue behind him.
43. The reality that the film industry does not fall into the usual labour norms should be considered when determining the worker’s status. The fact that the worker held a position which consisted of two different job descriptions, the primary one being a non unionized position and the fact that the worker accepted independent status at the signature of the contract should be used as the determining factors in deciding the worker’s status. The payer does not feel that [it] is fair that the worker who benefited from a tax free full pay and enjoyed benefits paid on the full amount, even though he was entitled for only a portion of the remuneration, should now also be able to collect employment insurance premiums.
[Underlining and boldface added.]
[24] In his testimony, Mr. Joli-Coeur described the various production stages for the television series Real World. This was a one-hour reality television series of 13 episodes. The production called for a lot of equipment, including 18 cameras, and for 60 people to be on the set. For that reason, the equipment had to be managed effectively. That is why it was decided to hire a technical director for a period scheduled to last two months, from June 2008 to August 16, 2008. When Mr. Cassou left, he was replaced with Mr. Bernier. The testimony given by Mr. Joli-Coeur and Mr. Bernier satisfied me that Mr. Bernier was hired primarily as technical director, and he also worked as a camera assistant when needed.
[25] The reason the pay for the two positions was combined and the employment standards and working conditions set out in the video collective agreement were adopted was to simplify the production accountant’s job, Mr. Joli-Coeur said. He explained that Mr. Bernier had been paid at a higher rate because of his responsibilities as technical director.
[26] On cross-examination by counsel for Mr. Bernier, Mr. Joli-Coeur acknowledged that if a technician did not do what they should do, the delegated producer would be responsible for telling them. He therefore admitted that a camera assistant was subordinate to the producer. With respect to the duties of a technical director, Mr. Joli-Coeur acknowledged that directives sent to Mr. Bernier came from the delegated producer, Ms. Mayotte.
[27] Mr. Joli-Coeur explained that the preproduction period ran from September 2007 to June 2008, and production ran from June to August 2008. The production period is described as the filming period. He defined the preproduction period as everything that happens before filming, and the postproduction period as everything that happens after filming. During the preproduction period, the synopsis and screenplay were written and the sites for filming decided.
[28] On the first day of filming, there were 75 people on the set. Mr. Joli-Coeur acknowledged that if the work was not completed at the end of the periods shown on the “call sheets”, they had to be paid for overtime and the same applied if meal breaks were delayed.
[29] Mr. Joli-Coeur explained that FPI employed four or five people on a permanent basis. To produce film or television productions, they had to hire a director, screenwriters and all the technicians needed to complete the project. All of those people were considered to be freelances.
[30] He acknowledged that some technicians were considered to be employees if they requested it and the budget allowed, and that the duties the technicians might perform did not change.
[31] In his testimony, Mr. Bernier confirmed that he had worked in audiovisual production for about 30 years and that, generally speaking, production firms made source deductions not only for his RRSP contribution but also for income taxes owing to the tax authorities and Quebec Pension Plan (QPP) and employment insurance premiums. He added that he drew employment insurance benefits on a regular basis when he was eligible. He stated that sometimes he was required to repay a portion of those benefits when his earnings had been too high. He acknowledged, however, that there had been no source deductions for QPP, employment insurance and income tax in the case of his contract with FPI.
[32] Mr. Bernier stated that during the production period the producer was the person who decided the “where”, “when” and “how” of the work to be done. In particular, the filming schedule was decided by the producer or the director, and Mr. Bernier was not consulted. The schedule specified the period for performance of the work and the breaks for meals in precise terms. He did acknowledge that as an experienced technician he knew how to do his work. However, he was not the one who decided where the cameras would be positioned during filming. He said that his supervisor was the delegated producer in the first instance, followed by the director and the floor manager. In his testimony, he confirmed his job description, which he had given in paragraph 3 of his notice of appeal, the respondent having admitted the accuracy of that paragraph:
[Translation]
3. The appellant works as a camera assistant, and in the course of his work he performs the following duties, in particular:
- Prepare the cameras.
- Install or change the lenses.
- Install and change the videotape, as needed.
- Change the batteries, as needed.
- Identify the videotapes.
- Transport the equipment.
- Identify takes with the clapper boards.
- Help in installing cameras.
-.Help to tighten the equipment.
- Check the time code regularly.
- Stick around on the set and help the camera operators[.]
- Drive the equipment truck.
- Charge the batteries.
- Distribute a dozen or so cameras to the camera assistants and camera operators.
- Transfer digital data to hard disks.
- Make sure that all the equipment is operating properly.
- Be the “guy in camera truck”.
- Look after the walkie-talkies.
- Deal with minor technical problems.
- Make sure all the cameras are synchronized.
- When time permits, go onto the set and perform camera assistant duties.
[Emphasis added.]
[33] Mr. Bernier also stated that he had worked on between 20 and 30 employment contracts in 2008, primarily as a camera assistant.
[34] If there were delays in filming a television production, there were risks for the producer, Mr. Bernier said, in particular in relation to the overtime it had to pay. During the relevant period, Mr. Bernier was never replaced by anyone else.
[35] He also confirmed that he had negotiated his pay. He had been offered $350 for 12 hours, when he had asked for $375. According to Mr. Bernier, his financial security depends on his reputation and his right to receive employment insurance benefits.
Ÿ Josée Mongeau
[36] Ms. Mongeau is a camera assistant, more of a second assistant than a first. She has worked in that position for about 15 years. In 2009, she worked on between 15 and 20 contracts, each of which might be one day to three months long. She stated that in the 15 years she has been working in this position, the contract with PKI is the first in which she has not been recognized as an employee. Generally speaking, she receives a record of employment at the end of her employment contracts that follow the AQTIS form. In fact, she refuses contracts that she describes as [Translation] “by billing”. Those contracts are different from the ones signed on the AQTIS form.
[37] The report on an appeal (Exhibit A‑7) was produced, setting out the facts presented in the conversations the appeals officer had with Ms. Mongeau. The report also related the conversations with a representative of PKI, Mr. Bourdeau. Some of the facts are clearly stated in the Amended Reply to the Notice of Appeal, a portion of which I reproduced supra. I will add only a few excepts from the report that seem to me to be the most important ones:
[Translation]
...
Conversation with Josée Mongeau
(the other party / the worker)
…
15. All of the work done by Josée Mongeau as a camera assistant was performed on the various sets under the supervision and control of the photography director, François Messier.
15.1 François Messier is the lead camera operator, video production, and also handles lighting and photography, in addition to giving Josée Mongeau her instructions as a camera assistant.
16. Josée Mongeau’s work consisted of helping with photography, estimating lighting, angles,[14] and so on.
17. When asked whether her work was supervised or controlled, she replied: [Translation] “All my instructions came from the photography director. I was to leave the set only when we got the order from the producer. I was to go to the places and at the times I was told. I had to fill out timesheets.
18. I considered myself to be an employee and not a subcontractor. I had no expenses. I was paid by the hour.”
18.1. I asked Josée Mongeau to explain why she declares her income from Les Productions Kinesis Inc as income from a business and why she deducts business expenses. She replied that she had no choice because Les Productions Kinesis Inc did not want to give her a T4 and Record of Employment so when she filed her income tax return she had only one way to declare her fees, as income from a business, and so claim her home office expenses (see Exhibit 7, attached to the record).[15]
…
19. She explained that the payer refused to issue a ROE, claiming that it would have cost it too much to deduct EI at source.
20. When asked how she had got this job, she replied: [Translation] “An acquaintance told me they needed an assistant. I contacted them and they had me sign a contract.” (Montréal, P.Q.)[16]
...
21.1 The hours of work are decided by the producer/director and he announces them generally after the workday for the next day. The work schedule may be either in the morning or in the evening, or even at night, depending on the director’s intentions for filming.
22. The payer considers Josée Mongeau to be a self-employed worker while she considers herself to be an employee.
22.1 Josée Mongeau told me that if the workers do not agree to the conditions of employment, they will not have a contract, and that is why she agreed to her status being self-employed even though she disagreed.[17]
23. Both parties acknowledge that there is a relationship of subordination between them.
Conversation with Cédric Bourdeau of Les Productions Kinesis Inc (the appellant/the payor)
24. Cédric Bourdeau corroborated what was said by Josée Mongeau in full, with the exception of the initial intention, which was never that she be an employee of the company, it was that she be self-employed/freelance.
25. The deductions shown on her pay stub represent the mandatory deductions that the payor is required to make for everyone who belongs to the “AQTIS” Union, as does Josée Mongeau (member number 20715). The payor must deduct the cost of the licence, union dues, group insurance and group RRSP. Those deductions do not in any way mean that Josée Mongeau is an employee.
...
(VI) CONTRADICTIONS
The only contradiction between the parties relates to their initial intention although Josée Mongeau was perfectly aware of the payor’s intention, at the time of hiring, to consider her to be self-employed/freelance.
[Emphasis added. Boldface by the appeals officer.]
[38] Contrary to what occurred in Mr. Bernier’s case, the insurability officer had determined that Ms. Mongeau’s work was insurable.
[39] In her testimony, Ms. Mongeau gave some clarifications, in particular regarding the performance of her duties. She stated that she received instructions concerning where to place the cameras and it was the director who decided what scene to film and how clear to make the image.
[40] She con