MWW Enterprises Inc. v. M.N.R.

MWW Enterprises Inc. v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2019-05-31
Neutral citation
2019 TCC 127
File numbers
2016-2743(EI)
Judges and Taxing Officers
Lucie Lamarre
Subjects
Employment Insurance Act
Decision Content
Docket: 2016-2743(EI)
BETWEEN:
MWW ENTERPRISES INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on June 12 and 13, 2018, at Montreal, Quebec
Before: The Honourable Associate Chief Justice Lucie Lamarre
Appearances:
Counsel for the Appellant:
Julie Forest
Wendy Sfeir
Counsel for the Respondent:
Marilou Bordeleau
JUDGMENT
The appeal of the decisions by the Canada Revenue Agency (CRA) regarding the insurability of 11 workers who had worked on the appellant’s television production Look Kool during the period from May 13 to September 19, 2014, is allowed and the CRA’s decisions are vacated for the following nine workers, who did not hold insurable employment: Angela Depalma, Inga Sibiga, Jean-François Noël, Claude Babin, Olivier Barbès-Morin, Claudine Bailey, Éric Déry, Dominic Remiro and Peter Weir.
With regard to the other two workers, Paul Dufresne-Laroche and Emma Lacroix, the appeal is dismissed and the CRA’s decisions are upheld since these two workers held insurable employment.
Signed at Ottawa, Canada, this 31st day of May 2019.
“Lucie Lamarre”
Lamarre A.C.J.
Citation: 2019 TCC 127
Date: 20190531
Docket: 2016-2743(EI)
BETWEEN:
MWW ENTERPRISES INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre A.C.J.
[1] Following a request for a ruling on the insurability of 44 workers who worked on the appellant’s television production Look Kool in 2014, the Canada Revenue Agency (CRA) concluded that the 44 workers held insurable employment within the meaning of paragraph 5(1)(a) of the Employment Insurance Act (EIA). To draw this conclusion, the CRA took a sample of 11 workers who had worked on the production during the period between May 13 and September 19, 2014. The appellant is appealing the decisions made regarding those 11 workers, as it considers them rather to be independent contractors.
[2] The appellant produced the television series Look Kool in 2014 for the broadcasters TVO and TFO in English and French. It set up two production teams for the series and hired the 44 workers in question.
[3] The 11 workers at issue here were hired as an associate producer (Angela Depalma), production coordinator (Inga Sibiga), production assistant (Paul Dufresne-Laroche, Emma Lacroix, Dominic Remiro, Peter Weir), assistant director (Jean-François Noël), gaffer (Claude Babin), assistant cameraman (Olivier Barbès-Morin), costumer/dresser (Claudine Bailey) and grip (Éric Déry). They all testified at the hearing except Peter Weir.
[4] Blaine Gillis (the appellant’s business manager) and Jonathan Finkelstein (the executive producer) also testified for the appellant. Luc Falardeau, the CRA appeals officer, testified for the respondent.
Facts admitted by the parties
[5] It is admitted by the parties in the Notice of Appeal (paragraphs 43, 44 and 48) and the Reply to the Notice of Appeal (Reply) (paragraph 2) that the appellant signed a contract of engagement with each of the workers. Some of them were members of the Alliance québécoise des techniciens de l’image et du son (AQTIS), and in those cases the appellant used the contract of engagement provided by AQTIS, to which it added a rider specifying that the worker was being hired as an independent contractor. For the other workers, who were not members of a relevant artists’ or technicians’ association, the appellant prepared an agreement called a Deal Memo. That agreement set out, among other things, the length of the contract and the remuneration agreed on by the parties for the services rendered. With regard to the associate producer, she signed an agreement specific to her position.
[6] It is also admitted that every AQTIS member could have refused to sign the agreement if the conditions offered did not meet the worker’s expectations or if he or she was simply not available during the production period (Notice of Appeal, paragraph 47; Reply, paragraph 2).
[7] Five of the workers in question were members of AQTIS, and the other six were not members of any artists’ association (Notice of Appeal, paragraph 62; Reply, paragraph 2).
[8] Of the six workers not members of any association, five had signed a Deal Memo: Inga Sibiga and Dominic Remiro, who each worked 2 days; Emma Lacroix, who worked 7 days; Peter Weir, who worked 14 days; and Paul Dufresne‑Laroche, who worked 49 days. According to the Notice of Appeal, all five of these workers considered themselves to be independent contractors when signing the Deal Memo, but the respondent acknowledges this only for Inga Sibiga, Peter Weir and Paul Dufresne‑Laroche (Notice of Appeal, paragraphs 62 to 70; Reply, paragraphs 2, 12 and 13).
[9] The respondent also admits that the contract of engagement between the appellant and the workers applied strictly for the purposes of the Look Kool production, which was done over a defined period of time, and that both the appellant and the workers agreed that the latter were being hired as independent contractors (under a “contract for services”) (Notice of Appeal, paragraphs 75 and 78; Reply, paragraph 2).
[10] The appellant relies on the Act respecting the professional status and conditions of engagement of performing, recording and film artists (CQLR, c.S‑32.1) (APS), and the respondent acknowledges that this statute allows artists’ associations to receive recognition thereunder, thus making it possible for them to negotiate with a producer or a producers’ association a collective agreement on behalf of the artists, on the minimum conditions for the engagement of those artists (Notice of Appeal, paragraphs 22-23; Reply, paragraphs 2-3).
[11] The respondent also acknowledges that AQTIS, which was formed when the Association des professionnelles et des professionnels de la vidéo du Québec (APVQ) merged with the Syndicat des techniciens du cinéma et de la vidéo du Québec (STCVQ), represents artists and technicians in certain sectors of the television and film industry. In addition, a collective agreement, known as the video agreement, was adopted for all positions recognized as those of artists under the APS (Notice of Appeal, paragraphs 25-26; Reply, paragraph 2).
[12] Both parties acknowledge that the characterization of the workers’ contractual relationship should be looked at through the lens of Quebec civil law in the present case. The respondent refers only to the applicable provisions of the Civil Code of Québec (CCQ) with respect to the definition of a contract of employment (art. 2085 CCQ) and a contract of enterprise or for services (art. 2098 and 2099 CCQ). The appellant adds that the issue must be analyzed within the Quebec socio-legal context, which includes not only the CCQ but also specific legislation and the agreements described above that govern the relationships between producers and artists.
Facts brought out at the hearing
First witness: Blaine Gillis, the business manager at MWW
[13] Mr. Gillis oversees all of the company’s accounting and finances and everybody’s contracts and remuneration.
[14] The show for which the workers at issue are employed is an educational show for children that is broadcast in Ontario.
[15] The show involves an in-studio component and filming is also done outside.
[16] All workers are hired as independent contractors.
[17] Mr. Gillis did not contract with the workers individually.
[18] The line producer is in charge of the budget for the show and hires the crew. She negotiates all deals to bring the show in on budget (which includes negotiating remuneration). She was not in Court to testify because she is retired and lives out of the country.
[19] Recruitment is done through recommendation and through AQTIS.
[20] All workers come to the show with already acquired knowledge and skills.
[21] There is negotiation and when a contract is agreed upon it goes to the production accountant, then Mr. Gillis sees it.
[22] There was never any suggestion by the unions that there was an issue with the independent contractor status. That status is non-negotiable.
[23] The following applied for AQTIS members:
1) They had to fill out timesheets.
2) Some rented their equipment to the appellant (e.g., sound equipment belonging to the worker was rented out to the appellant).
3) The appellant paid their expenses and for items such as safety shoes.
4) Some large equipment was rented by the appellant for the use of the workers.
5) Small equipment was brought by the workers.
[24] The appellant was required by the broadcaster to have civil liability insurance and had to be registered with the Commission de la santé et de la sécurité du travail.
[25] Mr. Gillis said that he had received no grievances, no calls, and no complaints from any worker.
Cross-examination,
[26] In cross-examination, Mr. Gillis stated that he rarely went on the set.
[27] The line producer was responsible for replacements. The appellant’s approval was needed for any replacement.
[28] Mr. Gillis paid the bills when he received them (e.g., for costumes or cameras).
[29] The line producer reported to the executive producer.
Second witness: Jonathan Finkelstein, the executive producer
[30] Mr. Finkelstein sells television programs to broadcasters (the clients) and obtains the financing to pay the licence fee.
[31] The production team is led by the line producer. It is composed of the actors, the writers, the creative producers, the director of photography, the video editors and the off-line editors.
[32] The client has approval rights regarding the production team.
[33] The executive producer will engage the top artists approved by the client and the line producer will fill the other positions.
[34] The line producer is responsible for keeping the project on time and on budget and deals with any problems (e.g., those relating to the replacement process). She recruits the key players, who are the top few people, who come with their own team of people (e.g., the line producer will recruit the director of photography, who will in turn recruit people for his own department).
[35] The production manager makes sure that vacant positions get filled. Usually crew members suggest their own replacement, but the production manager may recruit directly through AQTIS.
[36] The people recruited sign a Deal Memo in which they agree to work as independent contractors for a stipulated period of time.
[37] They are considered as independent contractors because they are generally incorporated, they sometimes charge goods and services tax (GST), they can work for different producers at the same time and they have multiple clients or work for very short periods of time. No one ever asked to change this state of affairs and it had never been an issue until now.
[38] Mr. Finkelstein, as executive producer, does not have any relationship with crew members. His dealings are with the top people.
[39] The workers bring their own skills to their employment; they know what they have to do. The appellant does not pay for training.
[40] The appellant is a member of the Association québécoise de la production médiatique, which negotiates on behalf of all producers. It gives access to the best, already trained professionals, who can work on the best productions.
[41] The appellant does not own the equipment. It is paid for through the production budget. The major expenses are for sound, lighting, cameras, lenses, tripods, wardrobe and make-up.
[42] Sometimes, the worker will rent his own equipment to the appellant. Labour and equipment are billed for separately. The appellant will pay for equipment supplied by the worker. It is a daily rate.
[43] As for remuneration, Mr. Finkelstein said that the contract terms are negotiated for all workers (those terms being the minimums under the AQTIS agreements).
[44] With respect to the nature of the work, the script dictates the final outcome of the project. The script is divided into scenes. The workers read the script and they know what they have to do. There is a lot of creativity involved. The workers are not told how to perform their tasks. They know the artistic product and the end result to be attained. (For example, the gaffer (electrician) will position the lighting so as to achieve the vision of the director of photography: he knows what has to be done; the woman in charge of costumes will work with the creative producer; the director of photography works with the director and the producer: he possesses the requisite technical and artistic skills and understands the tone and the mood of the project.)
[45] As for schedules, there are call sheets which tell everyone where he or she has to be and when. Everyone is part of a team and has a role that is very well defined in the television industry. Television is a collaborative medium. At paragraph 55 of its Notice of Appeal, which is admitted by the respondent (Reply, paragraph 2), the appellant states that the workers had to arrive on the set at the times determined by the appellant and that, as members of a team, they had an obligation to be present at the scheduled time so that the project could be completed in an orderly, efficient and timely manner and within budget.
Cross-examination
[46] In cross-examination, the evidence set out hereunder was elicited.
[47] Mr. Finkelstein is a majority shareholder of the appellant.
[48] His tasks consisted of developing ideas, bringing them to market, financing the projects and seeing to it that clients were satisfied.
[49] He goes on the set only at the beginning of shooting. He speaks with no one other that the director and the stage director.
[50] With respect to replacements, the appellant pays any substitutes because it pays the workers in every position in the production, but it will not pay the absent person.
[51] As for the riders to AQTIS contracts stating that the workers are independent contractors, nobody is forced to sign them. If a worker does not want to sign the rider, the appellant would have to decide whether to hire that person or not.
[52] Regarding overtime, whether the appellant will pay it or not depends on the agreement (if it is an AQTIS agreement, the appellant will pay it; if there is no agreement, payment of overtime would depend on individual negotiations).
[53] As far as costumes are concerned, the person hired has the creative role but she does not have the final say. She will seek to know if she is on the right track, as they are working on a restricted budget.
Third witness: Olivier Barbès-Morin
[54] Mr. Barbès-Morin was the assistant cameraman on the production of Looking Kool in 2014. His testimony revealed the following.
[55] Duties: He had to prepare the equipment to enable the cameraman to do his work. He verified that the cameras worked properly and placed the cameras in the places indicated. The scene could sometimes change, as decided by the director, and Mr. Barbès-Morin had to make adjustments to the cameras. He saw to it that the equipment was the best it could be (he was not the one who ensured that scenes were filmed correctly, contrary to what was stated in the CPP/EI decision, Exhibit A-1, Tab 1).
[56] Training: It was not really necessary. He “learned on the job.” He had good knowledge of photography.
[57] AQTIS member: He took the AQTIS 101 course. AQTIS is the union that represents sound and image workers. The course sets out the minimum work conditions for TV productions and informs workers about TV and film collective agreements. One generally has to be an AQTIS member to work under an AQTIS contract, but this is not always mandatory.
[58] Mr. Barbès-Morin was recruited for the Look Kool production by a director of photography with whom he had worked as an assistant in a previous production by Apartment 11 (which is a company associated with the appellant).
[59] Schedule: He had to work a 10-hour day with a one-hour break in the middle of the day.
[60] Contract: The dates were determined by the production according to Mr. Barbès-Morin’s availability. If he was not available on a given day, he would have been replaced either by someone he recommended or by a replacement they had found themselves. He said that he could potentially have broken a contract. He did not work exclusively with the producer. He could take on other contracts elsewhere.
[61] Supervision: It is the director of photography who provides the guidelines. The director of photography and the director decide on the shots and the artistic design. As an assistant, he was not directly involved in choosing cameras or lighting. This is done at the pre‑production stage. Once he has received the instructions from the director of photography, he knows what he has to do.
[62] Remuneration: He received more than the AQTIS basic rate. Therefore, he believes that he negotiated his remuneration. He reported business income for tax purposes and he has a GST number.
[63] Rider: He considers himself to be a freelancer (independent contractor).
[64] Tools: He brings his own basic tools, i.e., an assistant’s kit (screwdriver, pliers).
Cross-examination
[65] Mr. Barbès-Morin’s services were provided on the shooting location (schoolyard, parking lot or studio).
[66] He had worked for that company several times, the first time being in 2010 and the last time in 2015-2016.
[67] Time sheets: For AQTIS productions, the time sheets show the time spent shooting and on breaks, and they are sent to the production for remuneration purposes.
[68] Replacement: He never had to be replaced.
[69] Remuneration: He was paid $32.50 per hour instead of $30 per hour in 2014.
[70] Mr. Barbès-Morin has no business card and no business name in the enterprise register.
[71] Reported income: For 2013, T4 income of $5,644; for 2014, T4 income of $2,062, gross business income of $37,424 and net business income of $27,128; for 2015, T4 income of $2,406, gross business income of $44,165 and net business income of $34,358. He explained that some production companies issue T4s, but most issue T4As for the same kind of work (TV photography).
Fourth witness: Angela Depalma
[72] Ms. Depalma is an associate producer and an assistant director.
[73] Mr. Gillis said in his testimony that her main tasks were to schedule various programs for everyone on the computer, that she provided her own computer and that it was her decision whether she would work at the office or from home.
[74] Ms. Depalma is not an AQTIS member.
[75] Her duties are described in Schedule A to the associate producer agreement (Exhibit A-1, Tab 2). Among other things, she had to assemble all information from the production team and make sure that everybody required for the production was hired; she read the script and ensured that all items needed were on the set.
[76] She applied for her position as a result of a LinkedIn job posting.
[77] She also ran, with her husband, a videotaping photography company that they had started in 2003, but this was only an occasional pursuit (Exhibit R-1, Tab 4, page 5 of 12, paragraph 36). She now holds full-time employment elsewhere. She has worked in television production since 1998.
[78] She performed her work both at home in the evenings using her own computer and outside on the set.
[79] During the day, she worked at the appellant’s office because it facilitated matters. At the office, the computer, telephone, desk and printer were provided. She had access there to the shooting scripts.
[80] As regards her status, she had to answer that she was an independent contractor. She could have worked for someone else, depending on the time frame, but in 2014 she did not work for other producers. She is not sure where the fine line is to be drawn between employee and independent contractor status (Exhibit R-1, Tab 4, page 5 of 12, paragraph 35).
[81] With respect to her contract, she negotiated it and signed as a freelance; she charged GST.
[82] With regard to time schedule, she had no particular schedule, but she had to go through the script and had to perform her tasks in a certain order. There were always deadlines.
[83] The basic guidelines were that she had to make sure that no one did overtime so that they could stay within budget. The producer and the members of the cast collectively saw to it that they finished on time.
Cross-examination
[84] Ms. Depalma had discussions with the producer on a daily basis regarding what was required, the intentions for the shoot, the issues anticipated, the deadline standards and the quality of the work.
[85] All issues were submitted to the producer and to the field director, Jean‑Louis Côté. The producer-director always had the last say.
[86] Ms. Depalma stated that her period of work was from June to September 2014.
[87] Her work schedule was such that during the preproduction stage she worked at the office during regular office hours. During production, she worked on set and continued working at home. She imposed on herself a certain number of hours of work, but no one really checked on her (in preproduction, she worked 40 hours). Because the producer was her primary contact, she tried to be present during the same time frame as the producer (their desks were near each other).
[88] For 2014 she reported income consisting of $2,230 in employment income, $12,850 in employment insurance benefits and $22,420 in gross and net business income (she claimed no expenses) (Exhibit R-1, Tab 4 X).
[89] She was employed full time by other producers before 2014.
[90] As regards GST, she registered in 1999 but only activated her account in 2012, as she was an employee prior to 2012.
[91] When it happened that she was going to be absent, she emailed the producer and the line producer and recommended someone on the team to replace her.
[92] As for an assistant, she never asked for one and the matter was never discussed.
[93] Her contract was filed as Exhibit R-1, Tab 4 J. The contract required that she provide her services in person (paragraph 2.1) and that she follow instructions (paragraph 2.4). It stipulated a probation period of eight weeks (paragraph 2.5) and provided for withholdings from remuneration (paragraph 3.2).
[94] An invoice was filed as Exhibit R-1, Tab 4 L; it shows that Ms. Depalma billed under her own name.
Fifth witness: Jean-François Noël
[95] Mr. Noël was an assistant director, and he was referred by someone from a production company.
[96] He provided the following information on the points below:
· Contracts (length): He signed an initial contract with respect to shooting dates (8‑9 days) and a second contract for shooting preparation dates (14 days), both on a lump sum remuneration basis (Exhibit A-1, Tab 3). Those were pre‑arranged dates on which he had to be available. If he could not be available for some of the dates, he was replaced or he simply did not get the contract.
· Duties: He had to provide the schedule, ensure that the required number of children was found, make arrangements regarding equipment so that everything would be ready for the day of the shoot, prepare a call sheet, do the shoot breakdown, then break down each scene. He also took care of lunch so as to be in compliance with the collective agreement. He spoke to the director of photography and the director. He reported to the production manager.
[97] Mr. Noël worked on the appellant’s premises in order to participate in meetings, and he also did a small amount of work from home.
[98] He worked with Angela, who held the same position as he on the anglophone side.
[99] Experience: In 2014, he had three years’ experience. He has also worked on other productions.
[100] Training: He did not receive any.
[101] He was an AQTIS member.
[102] Status: His employment status is not important to him. He accepts the payer’s choice (Report, Exhibit R-1, Tab 4, pages 7 and 8 of 12, paragraphs 67-79). There was no discussion or negotiation regarding the contract. According to him, it is easier to say that a cameraman is an independent contractor. For an assistant director, the case is less clear. Where the contract is short term, it is easier to say that you are independent. It is simpler to say that you are a contract worker. If it had been a longer–term contract, it would have been different.
[103] Mr. Noël had a GST number in 2014.
[104] 2012-2013: He was an assistant director (on set) and a coordinator (at the office) for another production company as a self-employed worker.
[105] He did not provide any equipment.
[106] If, after he had signed the contract, a better one presented itself, he could technically have broken the first contract, but that is not done (if you want other contracts in the future). But he could always try to find a replacement for himself.
[107] Other contracts in 2014: Mr. Noël took on contracts with small production companies and worked directly for certain clients. He cannot have two AQTIS contracts at the same time. He could sign another contract, as a director of photography, for example, and rent his equipment without being present himself. But, as assistant director, his presence is necessary since he must keep things running on time.
[108] Schedule: There was no specific schedule except for meetings. However, everything must be done for the shoot. AQTIS contracts are based on hours: after a certain number of hours, time and a half or double time must be paid. That is why one must be on the same page as the director and adjust to what he wants, while staying within budget (if the director wants more cameras, cuts have to be made elsewhere).
Cross-examination
[109] The production manager supervises the financial aspects. She manages the budget (e.g., if time and a half must be paid). She could fire Mr. Noël if he was really incompetent. She can come on set, but this is a rather rare occurence. Mr. Noël is also in contact with the director, but the production manager has the final say on whether they will do a scene that is going to be more expensive.
[110] Meetings: Meetings are planned by the coordinator and the production manager. Mr. Noël is not necessarily required to attend a meeting if it does not concern him. However, if content is discussed, he has to be informed. He attended most meetings. Preparatory meetings are important because there is a tripartite management structure.
[111] Mr. Noël did not make budget decisions, but if he was asked for too much set-up time, he would ask that a choice be made among time, content and money.
[112] He reported to the production manager, but he worked for the director.
[113] Number of hours: During production, Mr. Noël worked more than 10 hours; in pre‑production, he worked from 9 a.m. to 6 p.m.
[114] Tools: A computer, photocopier, desk, telephone and paper were provided by the appellant at the office. If he incurred any expenses, he was reimbursed.
[115] Time sheets (Exhibit R-1, Tab 4 O): They were filled out by the coordinator. She entered the hours using the information provided by the assistant director. Here, 11 hours is indicated, as specified in the contract. Overtime was very rare, but Mr. Noël was entitled to it under the AQTIS contract. The time sheets were based on the agreements.
[116] Mr. Noël had neither business cards nor a website in 2014.
[117] Replacement: He would have needed the production manager’s approval for any replacement.
[118] Reported income (Exhibit R-1, Tab 4 DD): His 2013 T4 showed $31,662, earned as a coordinator; his 2014 T4 showed $8,905, which he earned as a cameraman and assistant cameraman for MediaRanch (TV company), which had hired him as an employee; he also had gross and net business income of $27,715 and $17,152 respectively in 2014; his 2015 T4 showed income of $35,903, which he earned as an assistant director (performing the same duties as here).
[119] Status (employee vs. contractor): He accepts the payer’s choice in this regard. Usually, when he signs contracts with production companies, they assume that he is a freelance, but he does not mind being either an employee or a contractor. For him the difference is in the length of the contract.
[120] Replacement: Replacing him must be done through AQTIS. It is more difficult for an assistant director to have himself replaced, but it can be done.
Sixth witness: Ms. Inga Sibiga
[121] Ms. Sibiga was a production coordinator.
[122] She signed a Deal Memo as an independent contractor for the period from February 13, 2014 to March 19, 2014. She worked two days in that period.
[123] She provided her services to others for eight years, also as an independent contractor, in the capacities of an assistant director or a production assistant.
[124] Her duties consisted of planning and arranging the shoot, creating call sheets and explaining when and where the crew had to be present.
[125] With regard to tools, she provided her own computer and her phone.
[126] She worked from home and obtained a GST number in mid-2014 after having worked for the appellant.
[127] She declared business income in 2014.
[128] Since March 2018, she has been an employee in post-production, which is something different.
Cross-examination
[129] Ms. Sibiga worked for Apartment 11 (related to the appellant) in 2012 and 2013 as a production coordinator and an assistant director.
[130] As for her schedule, it was not really nine-to-five. She had to create the schedule in time for the shoot. That took her two days.
[131] As assistant director, she had to be on the set at specific hours.
[132] With regard to tools, if working at the office she used the computer that was there. But she incurred expenses in using her own phone and computer because she worked from home for this particular project.
[133] Her duties involved consulting the producer and the director. The project was a collective undertaking. She organized the shoot and obtained whatever was necessary for the shoot.
[134] Regarding hours, she had no assigned hours, but she worked long hours.
[135] She has no official business name.
Re-examination
[136] Ms. Sibiga provided the following clarifications concerning the tasks associated with various jobs.
[137] An assistant director’s duties involve creating a schedule and managing the set.
[138] A production assistant’s duties consist of working on the set and helping with everything (driving actors, cleaning, costumes).
[139] A production coordinator (Ms. Sibiga’s job here) coordinates the shoots, secures locations and organizes everything in order that all will be ready for the shooting.
Seventh witness: Mr. Dominic Remiro
[140] Mr. Remiro was a production assistant.
[141] He signed a Deal Memo for the period from July 18, 2014 to July 21, 2014 as an independent contractor.
[142] He had just finished school.
[143] He was not a member of AQTIS.
[144] Mr. Remiro worked for other producers in 2014 and 2015. He was looking to make a name for himself in the industry.
[145] Duties: His work consisted in supporting others working on the set. He was a jack of all trades (he could just as easily well have installed lighting as sign release forms). In this case, he followed a production assistant.
[146] Requests came from the floor manager, assistant director or director of photography.
[147] Remuneration: He did not negotiate his remuneration. For 2014, he reported no employment income. He did not charge GST in 2014. He began doing so in 2016.
[148] If Mr. Remiro had been offered another contract elsewhere with better conditions, he would have found a replacement for himself after discussing it with the producer, but, ideally, he would have tried to perform the two contracts concurrently.
Cross-examination
[149] Duties: Mr. Remiro had to go to the warehouse, load the truck, deliver the equipment, and then be available to help the film crew. He also had to take care of food, then return to unload the truck at the warehouse.
[150] The equipment belongs to the company.
[151] This was one of his first contracts. He was replacing someone because he was there for only two days. It was the assistant producer who explained to him what he had to do, but this assistant producer was not his superior. They both performed the same tasks.
[152] The coordinator was the one who told him to go to the warehouse, where he crossed paths with the other production assistant.
[153] Schedule: He was alone during the day; he had no specific schedule. He had to start his day at a specific time, and his lunch break was around noon.
[154] Remuneration: Mr. Remiro was paid a lump sum per day. The number of hours could vary.
[155] Tools: A walkie-talkie was provided to him by the production.
[156] Experience: He knew how to load and unload a truck (he had done an internship on a set while at school).
[157] Replacement: Any replacement had to be approved by the company and was paid by the company.
[158] He would not have accepted a second contract at the same time as this one without consulting the company first.
[159] Expenses: Certain expenses (gasoline) were paid out of the company’s petty cash. Otherwise, he kept the receipt for reimbursement.
[160] His tasks were assigned by the director and the production manager. He could be asked to redo them if they were not satisfied with his work.
[161] His reported T4 income was $3,984 for 2014, possibly earned as a production assistant, and $3,185 for 2015, earned as a production assistant (Exhibit R-1, Tab 4 Y).
Re-examination
[162] 2015: Mr. Remiro reported gross business income of $35,927 and net business income of $25,572 that he earned as a sound mixer and also as a production assistant.
[163] 2014: He reported gross business income of $8,678 and net business income of $5,755; 90% of that income was earned by him as a production assistant.
Eighth witness: Paul Dufresne-Laroche
[164] Mr. Dufresne-Laroche was a production assistant.
[165] He signed a Deal Memo on May 13, 2014, for an indeterminate period.
[166] He did not provide services elsewhere.
[167] He first stated that he had worked a total of 7 days spread out over a month. Then he said that he had worked 40-50 days. At paragraph 69 of the Notice of Appeal, it is stated (and admitted by the respondent at paragraph 2 of her Reply) that he worked 49 days, negotiated his daily remuneration and considered himself to be an independent contractor.
[168] Duties: He helped move the operations office. He drove the equipment truck. He took care of the food. He took everything back at the end of the day. He also went to get specific accessories. The production coordinator, the director and others on the set told him what to do and how to do it properly. It was training for him.
[169] He was still a student. It was his first job in the field in which he was studying (film).
[170] He was called back to work for them again the following summer in 2015.
[171] As a production assistant, he held the lowest position in the hierarchy, and he had to do whatever was asked of him.
[172] If he had been offered a better contract elsewhere, he would have accepted it and would have said that he was no longer available.
[173] Schedule: The production coordinator told him what time he had to be there and what he had to do (she explained to him how things worked on the set).
[174] In 2014, he issued invoices, and that is why he considered himself to be an independent contractor. He claimed no expenses. He filled out a table with the number of hours and the rate.
[175] He had to be at work for 8 a.m. to load the truck and then proceed to the shooting location.
[176] According to him, the other production assistants had the same employment conditions.
[177] He was not an AQTIS member.
[178] In 2015, he negotiated a higher salary, but not a different status. He did not know the differences between an employee and an independent contractor.
Cross-examination
[179] Billing: Mr. Dufresne-Laroche indicated his hours worked without attaching time sheets.
[180] The vehicle used for transportation was provided by the company.
[181] Remuneration: He was paid $75 per half-day (less than 5 hours) and $150 per day (over 5 hours). That is entry-level remuneration.
[182] Status: His status was not important to him. He could also have agreed to be an employee. What mattered to him was that it was paid work. It was the person who hired him who spoke to him about his independent contractor status.
[183] Reported income (Exhibit R-1, Tab 4 Z): He reported professional income in 2014 of $7,725 (and claimed no expenses).
Ninth witness: Claude Babin (respondent’s witness)
[184] Mr. Babin was the gaffer.
[185] He signed two employment contracts; one in August and one in September.
[186] He worked between three weeks and a month.
[187] He went to the recording studio according to the schedule that had been prepared.
[188] He worked in collaboration with the director of photography responsible for the image. It is the director of photography who decides on the image and the reflection. He positions the lights and controls their intensity in accordance with the wishes of the director of photography. He knows what he has to do.
[189] Schedule: He was guaranteed a minimum of 10 hours. The schedule is that of the production. Everyone works together. The schedule provided for the day is based on the planned schedule for the scenes.
[190] Reported income (Exhibit R-1, Tab 1 H): For 2014 he reported $42,243 in T4 income and $3,328 in employment insurance; For 2015 he reported $38,003 in T4 income and professional income of $6,075 (no expenses were claimed).
[191] Status: He complies with the producer’s wishes, but he does not consider himself to be in business. If he is asked to bill, he has no choice but to do so. He is not registered for GST purposes.
[192] He signed an AQTIS contract of engagement which provided for RRSP deductions and deductions for the AQTIS group insurance plan and for union dues (income tax deductions were not mentioned in the contract). He signed a rider to the contract, which stated that he was an independent contractor.
[193] Time sheets under the AQTIS contract: He fills in the boxes for his hours, which he approves by initialling. If the hours are inaccurate, he goes through AQTIS, which represents him.
[194] Tools: He provided a pair of gloves and some small tools.
Cross-examination
[195] Mr. Babin received six T4 slips for 2014, but none from the appellant (Exhibit R-1, Tab 1 E). The income of $8,136 that he may have received from the appellant does not appear in his reported income, but it would be surprising that he did not report it. In 2015, there was business income. According to Mr. Babin, that income was from commercials done with producers who had not signed an agreement with AQTIS.
[196] In his view, it is not possible for an AQTIS member to be hired as an independent contractor (he has not, however, taken the AQTIS 101 course). He is an AQTIS member because he was already a member of the predecessor association. He works for independent producers who produce television content. With respect to the rider to his AQTIS contract that he signed, pursuant to which he is considered to be an independent contractor (Exhibit A-1, Tab 7), he says that he signed it without looking at it. It was in English, and he put his trust in the producer.
[197] He worked with the appellant in subsequent years and did not know whether he had received T4A slips.
[198] He does not work on an exclusive services basis. He can work for more than one producer in the same week.
[199] When he signs a contract, he can be absent for up to 10% of the time, and the producer will replace him with someone Mr. Babin finds himself, if the director of photography agrees. If he cannot find anyone to replace him, he will honour his contract.
[200] Before accepting a contract, he considers hi