Jewish Rehabilitation Hospital v. M.N.R.

Jewish Rehabilitation Hospital v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2005-09-19
Neutral citation
2005 TCC 260
File numbers
2004-2032(EI)
Judges and Taxing Officers
Pierre Archambault
Subjects
Employment Insurance Act
Decision Content
Citation: 2005TCC260
Date: 20050919
Docket: 2004‑2032(EI)
BETWEEN:
JEWISH REHABILITATION HOSPITAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
FRANCE BOUCHER,
Intervener.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
(Delivered orally from the Bench on March 23, 2005,
at Montréal, Quebec, and amended for greater clarity and precision.)
Archambault J.
[1] The Jewish Rehabilitation Hospital (Hospital) is appealing from a decision made by the Minister of National Revenue (Minister) that the employment held by the Intervener, France Boucher, during the period from July 1, 1999 to April 21, 2003 (relevant period) was insurable for the purposes of the Employment Insurance Act (Act).
[2] The issue in this case is essentially the nature of the contractual relationship that bound Ms. Boucher to the Hospital during the relevant period. It is necessary to decide whether she was bound by a contract of employment or by a contract for services.
Factual context
[3] Speech therapy was included in the services that the Hospital offered to its clients during the relevant period. It is helpful to cite a speech‑language pathologist's work description, provided by the Ordre des orthophonistes et audiologistes du Québec (Order):
[translation]
Speech‑language pathologists and audiologists are independent professionals with graduate‑level university education who are members of the Ordre des Orthophonistes et Audiologistes du Québec. They have expertise in the field of human communication and related disorders.
. . .
Speech‑language pathologists are professionals who perform the following duties:
• Screening, identification, assessment, interpretation, diagnosis, rehabilitation and prevention of disorders: oral and written language, speech, voice, oropharyngeal function, as well as cognitive/linguistic communication disorders.
• Evaluation, recommendation and development of alternative communication systems and training on their use;
• Counselling clients, their families, health care providers, educators and other individuals with regard to all aspects of communication disorders;
• Development and implementation of programs focusing on education, prevention of language disorders and supervision of screening programs;[1]
. . .
[4] Prior to the start of the relevant period, the Hospital had among its employees a number of speech‑language pathologists, two of whom worked in the traumatic brain injury department and three of whom worked in neurology. Speech therapy services were not just offered to the Hospital's patients (internal service). There was also a demand to provide such services to patients in residential and long‑term care centres (CHSLD) in Laval (Centres or external service). At that time, the Hospital had assigned another of its speech‑language pathologists, an employee, to the external service.
[5] To fund this service, the Laval Regional Health and Social Services Board (Board) provided a budgetary allocation to the Hospital. Since, I would imagine, it did not have the necessary financial resources to establish speech therapy departments in each of the Centres (approximately 11 in the Laval area), the Board deemed it appropriate to use the Hospital's existing staff to provide this service. To that end, it provided the Hospital with a list of Centres and of the persons in charge at each of these Centres.
[6] At first, the Board exercised little control over the speech therapy program offered at the Centres. Subsequently, possibly due to a change in the Board's personnel, the Board required the Hospital to provide more data on this program; the Hospital had to provide the Board with increasingly detailed reports in the months and years that followed.
[7] Based on an organizational structure that I would describe as two‑tier, the Hospital's speech‑language pathologists reported to a chief of the Hospital's speech‑language pathologists group as well as to the head of the department to which they were assigned, for example, the traumatic brain injury or neurology department head.
[8] For the purpose of supervising the salaried speech‑language pathologists providing internal services, department heads held meetings to discuss internal administration (assignments) and problems relating to patients. In addition, the Hospital evaluated the speech‑language pathologists' work. The evaluation process was such that it provided employees with the opportunity to share their expectations with the group leaders and enabled the latter to evaluate the employees' work. No evidence was submitted with regard to how the salaried speech‑language pathologists who provided external services were evaluated.
[9] When the Hospital hired Ms. Boucher, she only possessed a Bachelor's Degree in Speech‑Language Pathology. However, she had already started her Master's program and she had completed a practicum (internship) at the Hospital upon finishing her education, but prior to writing her Master's thesis. Furthermore, it was due to the work she had performed during this internship that the Hospital offered her employment with the external service in late winter 1999.[2]
[10] On March 16, 1999, the Hospital and Ms. Boucher signed an agreement (Agreement), which I shall reproduce at this point:[3]
[translation]
AGREEMENT
BETWEEN
The Jewish Rehabilitation Hospital, a legally incorporated entity having its head office at 3205 Place Alton Goldbloom, Chomedey, Laval, Quebec H7V 1R2, hereinafter referred to as the Hospital, represented by André Ibghy, its duly authorized Executive Director
AND
France Boucher, Speech and Language Correctionist
WHEREAS the mandate of the Regional Centre for rehabilitation services assigned to the Hospital by the Laval Regional Board.
WHEREAS the Memorandum of Understanding concluded between the Hospital and France Boucher.
WHEREAS the Mission, the need for speech therapy services for clients staying at the Laval CHSLD.
PURPOSE OF THE AGREEMENT
The parties agree to assign France Boucher the responsibility of providing speech therapy services to clients staying at CHSLD.
TERM OF CONTRACT
Between April 1, 1999 and September 30 1999, renewable.
COMMITMENT OF THE PARTIES
France Boucher agrees to serve the clients staying at CHSLD in Laval, in accordance with her availability and client needs.
Clients shall include patients, their families and health care staff.
The services will be provided to patients presenting with aphasia, dysarthria, communication disorders associated with dementia, dysphagia, or other communication disorders of a neurological origin (Parkinson's disease, multiple sclerosis, etc.).
DETAILS OF SERVICE
The services provided shall include individual and/or group treatment and training for families and health care staff. France Boucher will be responsible for documenting follow‑up care in accordance with the prerequisites of the Ordre des Orthophonistes et Audiologistes du Québec.
France Boucher will be responsible for a service report.
France Boucher will be responsible for being a member of the Ordre des Orthophonistes et Audiologistes du Québec, as well as for obtaining professional liability insurance.
The reports shall be submitted to the Jewish Rehabilitation Hospital.
André Ibghy designates Donna Bleier to be the contact person for this contract.
The Jewish Rehabilitation Hospital agrees to pay up to $14,500 for the services.
In witness whereof, the parties signed the Agreement at Laval on the 16th day of March 1999.
[Emphasis added.]
[11] It is clear that the Agreement does not characterize its nature or specify the way in which remuneration for Ms. Boucher's services will be calculated. However, Ms. Boucher believed that she was being hired as an employee and that she would receive the remuneration that is normally paid to the Hospital's speech‑language pathologists. She did not know her hourly rate of pay until she received her first cheque. In order to obtain her cheque, she had to complete a document created by the Hospital. The template for the document that Ms. Boucher adduced in evidence bears the Hospital's logo and the logo of the teaching hospitals affiliated with McGill University; it reads as follows:[4]
[translation]
JEWISH REHABILITATION HOSPITAL
HÔPITAL JUIF DE RÉADAPTATION
3205 Place Alton Goldbloom • LAVAL, QUEBEC, H7V 1R2 • (514) 688‑9550 • FAX: (514) 688‑3673
Professional Fees
Speech‑Language Pathology Department, Laval CHSLD
For the Jewish Rehabilitation Hospital
January 18, 2002
By France Boucher
2044 Des Seigneurs Boulevard
Terrebonne, Quebec J6X 3N9
Period from January 7 to 11, 2002
Number of hours:
24 hours
Period from January 14 to 18, 2002
Number of hours:
24 hours
Total:
48 hours
1,158.72
PLEASE PLACE THE COPY OF THE CALCULATION INTO AN ENVELOPE TO MAINTAIN CONFIDENTIALITY. THANK YOU[5]
Give the paycheque to Donna Bleier or Fanny Singer
Speech‑Language Pathology Department
Thank you
(Signature, Donna Bleier)
Donna Bleier or Fanny Singer
January 21, 2002
Date
(Signature)
France Boucher
January 18, 2002
Date
Ms. Boucher provided the number of hours for the two weeks at issue. A Hospital representative handwrote the amount of the fees.
[12] As confirmed by Ms. Singer and Ms. Bleier, the two Hospital representatives who testified at the hearing, Ms. Boucher's remuneration essentially corresponded to the hourly rate paid to speech‑language pathologists employed by the Hospital, plus 35% to account for vacation, sick leave and other benefits to which Hospital employees are entitled.
[13] Contrary to what is stipulated in the Agreement, Ms. Boucher was not required to purchase her own professional liability insurance. Since she was not a member of the Order, she was not covered under the insurance that the Order offered its members. Due to this coverage issue, her contract's start date was postponed. Indeed, she did not commence work until July 8, 1999, after the Hospital had confirmed by letter that she was covered under the insurance program for institutions in the health and social services system.[6] In this letter, the Director of Rehabilitation Programs and Services wrote: [translation] "It will be a pleasure to have you on our team . . ."
[14] The services that Ms. Boucher provided to patients at the Centres focused on two types of problems: communication and dysphagia (difficulty swallowing). Her work was not limited to treating patients. Since she also provided training to staff at the Centres housing residential patients and to the families of these patients, she required presentation materials, which the Hospital provided to her or for which the Hospital reimbursed her.
[15] The Agreement was renewed on September 21, 1999, for the period from October 1, 1999 to March 31, 2000 (Renewal Contract). This contract reads as follows:[7]
[translation]
JEWISH REHABILITATION HOSPITAL
HÔPITAL JUIF DE RÉADAPTATION
3205 Place Alton Goldbloom • Laval, QC, H7V 1R2 • (450) 688‑9550 • FAX (450) 688‑3673
RENEWAL CONTRACT
September 21, 1999
The contract for the provision of Speech Therapy to clients housed in CHSLDs is hereby renewed for a period of six months, from October 1, 1999 to March 31, 2000. The Hospital agrees to continue to insure France Boucher for this period or until such time as she is insured by the Ordre des Orthophonistes et Audiologistes du Québec. She will be paid at level two of the pay scale for Speech‑Language Pathologists. She will be paid weekly. A final report on services will be required.
(Signature)
France Boucher
(Signature)
Donna Bleier, M.Sc., S‑LP (C)
(Signature)
Nicole Payen, Director of Rehabilitation
Programs & Services
[Emphasis added.]
[16] Effectively, Ms. Boucher's work was interrupted from November 1999 to April 2001 due to an accident she had.
[17] The parties did not sign any other written agreement relating to the conditions for renewing Ms. Boucher's contract. Some attempts were made to enter into an agreement; however, they were not successful. According to the testimony of Ms. Singer, a speech‑language pathologist who was Ms. Boucher's superior, one of the Hospital's executives suggested settling Ms. Boucher's situation so that the contract would reflect the fact that she was a Hospital employee. One of the draft contracts (Draft 1)[8] reads as follows:
[translation]
CONTRACT
BETWEEN: JEWISH REHABILITATION HOSPITAL, an institution duly constituted under An Act respecting health services and social services R.S.Q. c. S‑S [sic], having its head office at 3205 Place Alton Goldbloom, Chomedey, Laval District, represented by Hélène Brunette, duly authorized
(hereinafter referred to as [the Hospital])
AND:
(hereinafter referred to as [the Employee])
1. The Hospital retains the Employee's services to fill a position under the direction of speech therapy services to serve CHSLD clients.
2. Employment shall begin on June 5 and shall end on December 5. This Agreement will be renewed automatically upon expiration of the first term, for successive periods of six months each, under the same terms and conditions, unless one of the parties provides notice to the contrary thirty (30) days prior to the expiration of the current term.
3. For the term of the employment defined in clause 2 above, the Employee's working conditions will be governed by the standards and practices for managing employees who are not excluded from bargaining but are not unionized.
4. The Hospital may terminate this Agreement and the Employee's employment by providing thirty (30) days' notice or by paying compensation equal to one month's wages. However, for serious cause, the Hospital may terminate this Agreement and the Employee's employment at any time, without any obligation to provide any prior notice or compensation whatsoever to the Employee (the Employee and Employer must agree in order for this to apply).
5. The Employee acknowledges that she will not be entitled to any recourse of any nature against the Hospital due to the termination of her employment at the end of her term, as defined in clause 2 above.
6. The Employee shall be paid every two weeks.
SIGNED AT LAVAL ON THIS
For the Hospital
For France Boucher
[Emphasis added.]
[18] According to Ms. Boucher, she did not sign this draft contract because she was not informed of the exact amount of her remuneration. Ms. Singer, who was supposed to obtain this information, went on sick leave. Subsequently, it was agreed that the hourly rate would be $35; however, this rate was not specified in any written agreement. According to Ms. Boucher, this remuneration corresponded to that of a speech‑language pathologist employed by the Hospital at the seventh or eighth pay level.[9]
[19] Another draft contract (Draft 2) was written early in 2003. It reads as follows:[10]
[translation]
Jewish Rehabilitation Hospital
Hôpital juif de réadaptation
FIXED‑TERM CONTRACT
NON‑RENEWABLE
BETWEEN: JEWISH REHABILITATION HOSPITAL, an institution duly Constituted under An Act respecting health services and social services R.S.Q. c. S‑S [sic], having its head office at 3205 Place Alton Goldbloom, Chomedey, Laval District, represented by Félicia Guarna, Director [sic] of Programs and Services, duly authorized.
(hereinafter referred to as [the Hospital])
AND: France Boucher
(hereinafter referred to as [the Speech‑Language Pathologist])
1. The Hospital retains the contractual services of Speech‑Language Pathologist France Boucher to work extra hours in different programs of the speech therapy department of the Rehabilitation Programs and Services Directorate.
2. Employment shall begin on May 5, 2003 and shall end on August 4, 2003.
3. During this period, Ms. Boucher will be paid the same hourly rate as in the previous contract, that is, a rate of thirty‑five dollars ($35.00) per hour, for a maximum of thirty‑five hours per week.
4. The Hospital may terminate this Agreement, thereby terminating the Speech‑Language Pathologist's employment, by providing fifteen (15) days' notice or by paying compensation equal to fifteen (15) days' wages. However, for serious cause, the Hospital may terminate this Agreement and the Speech‑Language Pathologist's employment at any time, without the obligation to provide any prior notice or compensation whatsoever to the Speech‑Language Pathologist.
5. The Employee acknowledges that she will not be entitled to any recourse of any nature against the Hospital upon termination of her contract of employment, as defined in clause 2 above.
SIGNED AT LAVAL ON THIS
Speech‑Language Pathologist
Hospital by:
(duly authorized)
[Emphasis added.]
[20] This contract was never signed, because the Hospital refused to sign it. This may be related to this letter of reprimand:[11]
[translation]
Jewish Rehabilitation Hospital Hôpital juif de réadaptation
May 1, 2003
Dear Ms. Boucher:
This letter is further to our meeting of April 29, 2003, the date on which we provided you with a letter citing our reasons for removing you from the regional specialized speech therapy services program in CHSLDs. In addition, we offered you the opportunity to have a contract for services[12] for a three‑month term, from May 5 to August 4, 2003, to work extra hours in different programs of the speech therapy department of the Rehabilitation Programs and Services Directorate.
At the same meeting, we were surprised to learn that on Tuesday, April 22, 2003, you went to the Orchidée Blanche CHSLD to continue to provide speech therapy services. On a number of occasions, Ms. Ménard, your immediate superior, instructed you to stop providing services on April 17; thus, we find that this situation is unacceptable. In addition, during our meeting, it was necessary to prohibit you from returning to the Orchidée Blanche CHSLD, because you still intended to complete your care at a future time.
During the meeting, we noted that you were not listening very carefully, which sometimes led to a lack of understanding of some of the instructions we were giving you. Consequently, we are of the opinion that if this behaviour were to persist, it could cause difficulties in the supervision of your clinical activities throughout the term of the contract.
Sincerely,
(Signature)
Félicia Guarna
Director, Rehabilitation Programs and Services
FG/aa
cc: Hélène Brunette, Head, Human Resources Services
Suzanne Ménard, Acting Department Head, Speech‑Language Pathology
[Emphasis added.]
Analysis
[21] It must be determined whether Ms. Boucher held insurable employment for the purposes of the Act. The relevant provision is paragraph 5(1)(a) of the Act, which reads as follows:
5(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
5. (1) Sous réserve du paragraphe (2), est un emploi assurable :
a) l'emploi exercé au Canada pour un ou plusieurs employeurs, aux termes d'un contrat de louage de services ou d'apprentissage exprès ou tacite, écrit ou verbal, que l'employé reçoive sa rémunération de l'employeur ou d'une autre personne et que la rémunération soit calculée soit au temps ou aux pièces, soit en partie au temps et en partie aux pièces, soit de toute autre manière;
[Emphasis added.]
[22] This section defines insurable employment as including employment under a contract of service (or, to use a synonym, a contract of employment[13]). However, the Act does not define what constitutes such a contract. Since the Agreement was made in Quebec, and since a contract of service is a civil law concept that is found in the Civil Code, the nature of this contract must be determined pursuant to the relevant provisions of this Code.[14]
[23] The most relevant provisions for determining the existence of a contract of employment in Quebec and for distinguishing it from a contract for services are articles 2085, 2086, 2098 and 2099 of the Civil Code:
Contract of employment
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.
2086 A contract of employment is for a fixed term or an indeterminate term.
Contract of enterprise or for services
2098 A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay.
2099 The contractor or the provider of services is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance.
[Emphasis added.]
[24] Upon analyzing these provisions of the Civil Code, it is clear that there are three essential conditions for a contract of employment to exist: i) work performed by the employee; ii) remuneration for this work, paid by the employer; and iii) a relationship of subordination. What clearly distinguishes a contract for services from a contract of employment is the existence of the relationship of subordination; that is, the fact that the employer has the power to direct or control the worker.
[25] In academic literature, authors have reflected on the concept of "power to direct or control" and its reverse, "relationship of subordination." Robert P. Gagnon[15] writes the following:
[translation]
c) Subordination
90 —Distinctive factor— The most significant factor characterizing a contract of employment is the subordination of the employee to the person for whom the employee works. This factor makes it possible to distinguish a contract of employment from other contracts for value that also involve performing work for the benefit of another person, for a price, such as the contract of enterprise or for services governed by articles 2098 and following of the Civil Code of Québec (C.C.Q.). Thus, when the contractor or the provider of services remains, under article 2099 of the C.C.Q, "free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance," it is characteristic of a contract of employment, subject to its terms, that the employee personally performs the agreed‑upon work under the direction of the employer and within the framework established by the employer.
. . .
92 —Notion— Historically, civil law first developed the strict or classical notion of legal subordination, which was used as a test to apply the principle of civil liability of the principal for injury caused by his agent and servant in the performance of their duties (article 1504 Civil Code of Lower Canada; article 1463 C.C.Q.). This classical legal subordination was characterized by the immediate control exercised by the employer over the performance of the employee's work with respect to its nature, terms and conditions. It gradually became more flexible to give rise to the notion of legal subordination in the broad sense. The diversification and specialization of occupations and work techniques have, in effect, often rendered it unrealistic that the employer would be in a position to dictate or even to immediately supervise the performance of the work. Thus, we have begun to assimilate subordination to the right, leaving the individual recognized as the employer to determine the work to be performed, and to supervise and control the performance of the work. By reversing the perspective, the employee is the one who agrees to become integrated into the operating framework of a business, in order to perform work for the business. In practice, evidence of a number of supervision indicators will be sought, which will likely vary depending on the context: mandatory presence at a workplace, fairly regular assignment of work, imposition of rules of conduct or behaviour, activity reports requirement, control of the quantity and quality of the work, etc. Working from home does not preclude such integration into the business.
[26] I would add that the distinguishing feature of a contract of employment is not the fact that the employer actually exercised direction or control, but the fact that the employer had the power to do so. In Gallant v. M.N.R., [1986] F.C.J. No. 330 (Q.L.), Pratte J., of the Federal Court of Appeal, states:
. . . The distinguishing feature of a contract of service is not the control actually exercised by the employer over his employee but the power the employer has to control the way the employee performs his duties . . . .
[Emphasis added.]
[27] In addition, in Groupe Dessmarais Pinsonneault & Avard Inc. v. Canada (M.N.R.), 2002 FCA 144, (2002) 291 N.R. 389, Noël J.A. writes:
5. The question the trial judge should have asked was whether the company had the power to control the way the workers did their work, not whether the company actually exercised such control. The fact that the company did not exercise the control or that the workers did not feel subject to it in doing their work did not have the effect of removing, reducing or limiting the power the company had to intervene through its board of directors.
[28] In my opinion, the rules governing the contract of employment in Quebec law are not identical to those of common law and, consequently, it is not appropriate to apply common law decisions such as Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553 (F.C.A) and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59. In Quebec, a court has no choice but to determine whether or not there is a relationship of subordination in order to determine whether a contract constitutes a contract of employment or a contract for services. This is what Létourneau J.A. of the Federal Court of Appeal stated in D & J Driveway,[16] in which he determined that there was no contract of employment, based on the provisions of the Civil Code and particularly by noting that no relationship of subordination existed, which he describes as "the essential feature of the contract of employment."[17]
[29] Here are some of the reasons that I discussed in the article on Wiebe Door to justify my conclusion:[18]
[translation]
[64] In comparing the rules of the Civil Code with those of common law, it is clear that they differ in terms of the conditions necessary in order for a contract of employment to exist. The rules set out in the Civil Code are statutory and "no court can change a written rule." The Civil Code requires the existence of a relationship of subordination: this is one of the three elements essential to the existence of a contract of employment, the two others being work and remuneration. The rules of common law, case law, are flexible and can therefore be modified by the courts as needed. This is how the control test, the only test used by the courts in the past, was abandoned, because it was deemed to have "an air of deceptive simplicity." It "has broken down completely in relation to highly skilled . . . workers, who possess skills far beyond the ability of their employers to direct." With regard to control, "analysis of the extent and degree of such control is not in itself decisive." The "notion of control is not always conclusive in itself, notwithstanding the importance it must be given" and "there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. . . . 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." Since courts of common law have abandoned the control test to adopt the total relationship approach, it is possible for them to determine that there is a contract of employment without making a finding of fact with regard to the existence of the right of control.
[65] And yet, in Quebec, due to the paramountcy of article 2085 C.C.Q., judges are required to determine whether there is a relationship of subordination in order to decide whether all of the conditions necessary for the existence of a contract of employment have been met. The same is true regarding the existence of a contract for services: there must be no relationship of subordination (article 2099, C.C.Q.). Under the Civil Code, once it has been established that there is a relationship of subordination, it is not necessary to consider the other tests, such as the business test, particularly including the following three elements: the ownership of the tools, chance of profit and risk of loss. With due respect for those who hold a contrary view, nor is it possible to conclude that the control test is neutral, that too much weight can be placed on the relationship of subordination and that, when ruling on the existence of a contract of employment governed by the Civil Code, this test is not a good indication of the nature of the contract between the parties. Such conclusions would be possible, however, when applying principles of common law. Aside from the work and remuneration, the relationship of subordination (the right of direction or control) is the only decisive test. I believe this is what Décary J.A. means at paragraph 114 of Wolf, when he writes:
. . . I may add that I find it somehow puzzling that "control" is listed amongst the factors to be considered in an exercise the purpose of which is precisely, under the Civil Code of Québec, to determine whether or not there is control.
[66] Consequently, the approach adopted in Sagaz and Wiebe Door is inconsistent with the relevant provisions of the Civil Code. Professor Duff comes to a substantially similar conclusion:
. . . In most tax cases, these judicial decisions rely on the general test adopted in Wiebe Door, which corresponds to the private law of the common law provinces but differs from the control or subordination test contained in the C.C.Q. Neither the ITA nor other federal legislation explicitly dissociates the meaning of this word from the civil law of Quebec, nor does the text of the ITA necessarily imply that the meaning of the word for tax purposes should be interpreted according to its common law definition. Here too, a general presumption that Parliament might have intended the distinction between employees and independent contractors to apply uniformly throughout Canada should not outweigh the explicit affirmation of Canadian bijuralism in new section 8.1 of the federal Interpretation Act and the Preamble to the Harmonization Act. Consequently, to the extent that tax cases in Quebec rely on Wiebe Door rather than the C.C.Q., or as a separate test in addition to the C.C.Q., they are incompatible with new section 8.1 of the federal Interpretation Act. Where a court refers to the general test in Wiebe Door in order to apply the control or subordination test, on the other hand, complementarity is maintained and section 8.1[19] need not apply. In practice, however, the expansive Wiebe Door test may be incompatible with the singular emphasis on subordination in the C.C.Q.
[Emphasis added.]
[67] Both MacGuigan J. in Wiebe Door and Desjardins J.A. in Wolf believed that the rules of civil law and common law concerning contracts of employment were identical. Indeed, the latter stated the following:
48 In Hôpital Notre‑Dame de l'Espérance and Théoret v. Laurent, [1978] 1 S.C.R. 605, a case in tort, the Supreme Court of Canada was called upon to determine whether a medical doctor was an employee of the hospital where the claiming party had been treated. Pigeon J., for the Court, cited with approval André Nadeau, Traité pratique de la responsabilité civile délictuelle (Montréal: Wilson & Lafleur, 1971), page 387, who had observed that [TRANSLATION] "the essential criterion in employer‑employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out his work" (page 613). Pigeon J. then cited the famous case of Curley v. Latreille (1920), 60 S.C.R. 131, where it was noted that the rule was identical on this point to the common law (ibid., at pages 613‑614).
49 Consequently, the distinction between a contract of employment and a contract for services under the Civil Code of Québec can be examined in light of the tests developed through the years both in the civil and in the common law.
[Emphasis added.]
[68] The statement attributed to Pigeon J., who referred to Curley, with regard to the identity in the two legal systems of the rule for determining the existence of a contract of employment, is incorrect for two reasons. First, that is not what he said. Furthermore, as was seen previously, the rules of common law and civil law are not identical in terms of the essential elements of the contract of employment.
[69] The debate in Curley—as is primarily the case in Hôpital Notre‑Dame— concerned the liability of the master for the act of another person (the servant), not the servant's legal status. Thus, it is by addressing the issue of liability for the act of another person and not the essential elements of a contract of employment that Pigeon J. affirmed, in Hôpital Notre‑Dame, the identity of the rules of civil and common law, as the following two passages reveal:
Turning now to the initial fault, here again the hospital's liability appears to me without legal basis. It would have to be based on the last paragraph of art. 1054 C.C.:
Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed.
Since Curley v. Latreille . . . it is settled law in Quebec that, in the French version of the Code, the words "dans l'exécution des fonctions" are to be given a literal interpretation, a literal meaning corresponding to the English version: "in the performance of the work". It was expressly noted that this meaning is also that of the common law rule. The broad meaning which the French courts have given the words "dans les fonctions" in art. 1384 C.N., and which results in liability being fixed for acts that are merely performed "on the occasion of work" and are connected to it only by circumstances of time, place or service, has thus been rejected.
[p. 611]
. . . In the case at bar, the medical care was given to Dame Laurent under a contract, not with the hospital, but with Dr. Théoret. Since it was noted in Curley v. Latreille that the Quebec rule is identical on this point to the common law, I will take the liberty of quoting the following statement of Aylesworth J.A. of the Ontario Court of Appeal, cited by Hall J. in The Trustees of the Toronto General Hospital v. Matthews [[1972] S.C.R. 435.], (at p. 439):
The cases under review both in this country and in England make it clear, I think, that the liability of a hospital for the negligent acts or omissions of an employee vis‑à‑vis a patient, depends primarily upon the particular facts of the case, that is to say, the services which the hospital undertakes to provide and the relationship of the physician and surgeon to the hospital.
[pp. 613 and 614]
[Emphasis added.]
[70] In addition, it is in Curley that Mignault J., after noting that several Court of Appeal judges had [translation] "likened our civil law, in terms of the responsibility of masters and servants, to English law," issued his warning against the temptation [translation] "to go outside the legal system to seek precedents in another system." Thus, both in Hôpital Notre‑Dame and in Curley, the identity of the rules was only recognized for civil liability and not for the elements that are essential to the existence of a contract of employment. . . .
. . .
[72] In Wiebe Door, MacGuigan J. adopted the same approach as the one adopted by the Privy Council of London, England—the first court to establish the enterprise test—in Montreal Locomotive. Since the dispute in Montreal Locomotive began in Quebec, some people might have believed that the enterprise test could be applied in the Province of Quebec. Two comments are required. First, in no way did that case involve determining the nature of a contract of employment governed by Quebec law; rather, it was necessary to determine to what extent the Montreal Locomotive company was subject to municipal taxation as the "occupant" of a building. This company had sold its land to the Crown and had agreed to construct a plant and to operate it as an agent of the Crown. Therefore, it was necessary to determine in this case who the occupant was. To do this, it was necessary to establish whether Montreal Locomotive operated a business on its own account or on behalf of the Crown. Furthermore, according to MacGuigan J. in Wiebe Door, to settle this issue in Montreal Locomotive Lord Wright apparently relied on an article written by an American lawyer. Thus, the Privy Council did not establish rules governing a contract of employment in Quebec, nor did it even use the rules of contractual civil law to settle the issue under review.
[73] In conclusion, since the coming into force of the Civil Code in 1994 and of section 8.1 of the Interpretation Act in 2001, it is no longer appropriate to apply common law decisions, such as Sagaz and Wiebe Door, to determine the essential elements of a contract of employment in Quebec. Rather, it is necessary to apply the relevant provisions of the Civil Code, which clearly define and specify a contract of employment. . . .
[30] Having concluded that it was inappropriate to use precedents from common law, I then proposed, in the same article, the approach that should be used when this Court must apply the provisions of the Civil Code. The summary I wrote reads as follows:
[translation]
2.4. SUMMARY OF THE APPROACH
[124] In summary, the approach suggested in the second part of the article enables the Court to settle the issue with which it has been presented, that is, to determine whether or not there is a contract of employment. The individual before the court is responsible for proving disputed facts to establish his or her right to have the Minister's decision set aside or varied. Therefore, it would be appropriate to prove the contract entered into by the parties and to establish their common intention regarding the nature of this contract. If direct evidence of this intention is not available, then the individual can use indications of intention.
[125] He or she will then need to demonstrate that the parties performed the contract in accordance with the agreed‑upon stipulations and with the legislative provisions of the Civil Code that govern this contract. The individual must establish that the work was performed, that remuneration was paid and that the work was carried out under the payor's direction or control, if the individual wants to establish that the parties were bound by a contract of employment. If necessary, the individual can use a variety of indications such as indications of subordination (indications of direction or control). If, on the other hand, the individual wants to prove that there was no contract of employment, then he or she needs to prove that there was no relationship of subordination using indications of autonomy, if necessary. It is in the Minister's best interest to adduce in evidence all of the factual elements that could prove that the c