Dumais Et al v. M.N.R.

Dumais Et al v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2007-06-20
Neutral citation
2007 TCC 261
File numbers
2005-849(EI), 2005-850(EI)
Judges and Taxing Officers
Paul Bédard
Subjects
Employment Insurance Act
Decision Content
Dockets: 2005-849(EI)
2005-850(EI)
BETWEEN:
CHRISTIANE DUMAIS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeals heard on common evidence with the appeals of Jean‑François Dumais (2005-852(EI) and 2005‑853(EI)), Auberge sur la Côte inc. (2005-854(EI))
and Mario Dumais, operating Auberge sur la Côte enr. (2005-856(EI)),
on December 14 and 15, 2005, and March 23, 2006, at Québec, Quebec
Before: The Honourable Justice Paul Bédard
Appearances:
Counsel for the Appellant:
Sarto Veilleux
Counsel for the Respondent:
Claude Lamoureux
____________________________________________________________________
JUDGMENT
The appeals filed under subsection 103(1) of the Employment Insurance Act are dismissed, and the decisions of the Minister of National Revenue are confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 20th day of June 2007.
"Paul Bédard"
Bédard J.
Translation certified true
on this 9th day of November 2007.
Michael Palles, Reviser
Dockets: 2005-852(EI)
2005-853(EI)
BETWEEN:
JEAN-FRANÇOIS DUMAIS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeals heard on common evidence with the appeals of Christiane Dumais (2005‑849(EI) and 2005‑850(EI)), Auberge sur la Côte inc. (2005-854(EI))
and Mario Dumais, operating Auberge sur la Côte enr. (2005-856(EI)),
on December 14 and 15, 2005, and March 23, 2006, in Québec, Quebec
Before: The Honourable Justice Paul Bédard
Appearances:
Counsel for Appellant:
Sarto Veilleux
Counsel for Respondent:
Claude Lamoureux
____________________________________________________________________
JUDGMENT
The appeals filed under subsection 103(1) of the Employment Insurance Act are dismissed, and the decisions of the Minister of National Revenue are confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 20th day of June 2007.
"Paul Bédard"
Bédard J.
Translation certified true
on this 9th day of November 2007.
Michael Palles, Reviser
Docket: 2005-854(EI)
BETWEEN:
AUBERGE SUR LA CÔTE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Christiane Dumais (2005‑849(EI) and 2005‑850(EI)),
Jean‑François Dumais (2005-852(EI) and 2005‑853(EI))
and Mario Dumais, operating Auberge sur la Côte enr. (2005-856(EI)),
on December 14 and 15, 2005, and March 23, 2006, at Québec, Quebec
Before: The Honourable Justice Paul Bédard
Appearances:
Counsel for the Appellant:
Sarto Veilleux
Counsel for the Respondent:
Claude Lamoureux
____________________________________________________________________
JUDGMENT
The appeal filed under subsection 103(1) of the Employment Insurance Act is dismissed, and the decision of the Minister of National Revenue is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, the 20th day of June, 2007.
"Paul Bédard"
Bédard J.
Translation certified true
on this 9th day of November 2007.
Michael Palles, Reviser
Docket: 2005-856(EI)
BETWEEN:
MARIO DUMAIS,
OPERATING L'AUBERGE SUR LA CÔTE ENR.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Christiane Dumais (2005‑849(EI) and 2005‑850(EI)),
Jean‑François Dumais (2005-852(EI) and 2005-853(EI))
and Auberge sur la Côte inc. (2005-854(EI)),
on December 14 and 15, 2005, and March 23, 2006, at Québec, Quebec
Before: The Honourable Justice Paul Bédard
Appearances:
Counsel for the Appellant:
Sarto Veilleux
Counsel for the Respondent:
Claude Lamoureux
____________________________________________________________________
JUDGMENT
The appeal filed under subsection 103(1) of the Employment Insurance Act is dismissed, and the decision of the Minister of National Revenue is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 20th day of June 2007.
"Paul Bédard"
Bédard J.
Translation certified true
on this 9th day of November 2007.
Michael Palles, Reviser
Citation: 2007TCC261
Date: 20070620
Dockets: 2005-849(EI), 2005-850(EI),
2005-852(EI), 2005-853(EI),
2005-854(EI) and 2005-856(EI)
BETWEEN:
CHRISTIANE DUMAIS,
JEAN-FRANÇOIS DUMAIS,
AUBERGE SUR LA CÔTE INC.,
MARIO DUMAIS, OPERATING AUBERGE SUR LA CÔTE ENR.,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] The appellants are appealing from decisions of the Minister of National Revenue (the "Minister") rendered under the Employment Insurance Act (the "Act"). The Minister decided that Christiane Dumais (the "Female Worker") and Jean‑François Dumais (the "Male Worker") did not hold employment under a contract of employment and therefore did not hold insurable employment within the meaning of paragraph 5(1)(a) of the Act when they worked for Mario Dumais, who was operating Auberge sur la Côte enr., and when they worked for Auberge sur la Côte inc. (the "Payers"). The Minister also decided that the Male Worker and the Female Worker (the "Workers") did not hold insurable employment when they worked for the Payers, since he concluded that this was excluded employment, as the Workers and the Payers would not have entered into similar contracts if they had been dealing with each other at arm's length.
[2] The relevant periods for the Female Worker when she worked for Mario Dumais were as follows:
(i) from January 1, 1999, to October 23, 1999;
(ii) from December 26, 1999, to June 24, 2000.
[3] The relevant periods for the Female Worker when she worked for Auberge sur la Côte inc. (the "Company") were as follows:
(i) from June 25, 2000, to October 14, 2000;
(ii) from June 24, 2001, to September 29, 2001;
(iii) from October 7, 2001, to October 13, 2001;
(iv) from May 12, 2002, to October 26, 2002;
(v) from June 21, 2003, to September 13, 2003.
[4] The relevant periods for the Male Worker when he worked for Mario Dumais were as follows:
(i) from June 3, 1999, to October 23, 1999;
(ii) from June 12, 2000, to June 24, 2000.
[5] The relevant periods for the Male Worker when he worked for the company were as follows:
(i) from June 25, 2000, to October 14, 2000;
(ii) from June 24, 2001, to September 29, 2001;
(iii) from November 23, 2001, to September 21, 2002;
(iv) from September 30, 2002, to September 27, 2003.
[6] In rendering his decisions in dockets 2005-856(EI), 2005-849(EI) and 2005‑853(EI), the Minister determined that the Workers did not hold employment under a contract of employment when they worked for Mario Dumais. These decisions were rendered on the basis of the following assumptions of fact in docket 2005‑856(EI):
(a) On August 2, 1994, the appellant registered the corporate name of "Auberge sur la Côte enr";
(b) The appellant operated a 12-room inn, a 3-bedroom cottage and a dining room with a capacity of 68 persons;
(c) In 1999, the appellant was operating year round;
(d) In January 2000, a fire at the inn forced it to close until May 2000;
(e) The appellant hired up to 15 persons;
(f) During the investigation, the appellant refused to disclose the documents requested by the respondent's representative;
(g) During the investigation, counsel for the appellant advised the respondent's representative that there would be no interview with the Male Worker or the Female Worker;
Jean‑François Dumais
(h) The Male Worker worked for the appellant as head cook;
(i) The Male Worker's duties consisted of setting the menus, dealing with suppliers and the other kitchen employees and preparing the meals themselves;
(j) During very busy periods, the Male Worker would work up to 80 hours per week;
(k) No accounting was made of the Male Worker's hours of work;
(l) In 1999, the Male Worker's weekly salary was $550;
(m) The Male Worker began rendering services for the appellant in the beginning of May;
(n) The Male Worker did not begin receiving his pay until the end of June;
(o) The Male Worker was rendering services to the appellant on a full-time basis, without pay;
(p) On May 10, 2002, Christiane Dumais stated to an HRDC investigator that in the spring, when the employees started working, they would bank hours so that they would not be penalized when they became unemployed and so that they would have large paycheques;
(q) On October 26, 1999, the appellant issued to the Male Worker a record of employment that gave June 3, 1999, as the first day worked and October 23, 1999, as the last day worked. It also showed 672 insurable hours and 7 weeks with $1,100.00 and 1 week with $1,126.83 as insurable earnings per week;
(r) On June 28, 2000, the appellant issued to the Male Worker a record of employment that gave June 12, 2000, as the first day worked and June 24, 2000, as the last day worked. It also showed 82 insurable hours and insurable earnings of $1,248.00;
(s) The Male Worker's records of employment do not reflect the actual hours and periods worked;
(t) The periods during which the Male Worker allegedly worked did not correspond to the periods actually worked;
(u) The appellant and the Male Worker entered into an arrangement to allow the Male Worker to receive employment insurance benefits while still rendering services to the appellant;
Christiane Dumais
(v) The Female Worker worked for the appellant as an assistant manager;
(w) The Female Worker's duties consisted of taking care of the reception desk, reservations, guest check-ins and check-outs and bills, helping with breakfast, making up rooms, doing the laundry, completing staff time sheets and keeping accounting records;
(x) The appellant reported that the Female Worker worked 12 hours per day, 7 days per week;
(y) The Female Worker's weekly salary was $425 in 1999;
(z) No accounting was made of the Female Worker's hours;
(aa) The appellant had a policy allowing employees to bank their hours;
(bb) On May 10, 2002, the Female Worker stated to an HRDC investigator that when the employees began working in the spring, they banked hours of work so that they would not be penalized when they became unemployed and so that they would have large paycheques;
(cc) Before and after the disputed periods, the Female worker rendered services to the appellant on a full-time basis without any remuneration;
(dd) On November 15, 1999, the appellant issued to the Female Worker a record of employment that gave January 1, 1999, as the first day worked and October 23, 1999, as the last day worked. It also showed 795 insurable hours and 8 weeks with $850.00, 1 week with $1,172.59 and 1 week with $60.71 as insurable earnings per week;
(ee) On June 28, 2000, the appellant issued to the Female Worker a record of employment that gave December 26, 1999, as the first day worked and June 24, 2000, as the last day worked. It also showed 19 insurable hours and $177.84 as insurable earnings;
(ff) The Female Worker's records of employment do not reflect the actual hours and periods worked;
(gg) The periods allegedly worked by the Female Worker do not correspond to the periods actually worked;
(hh) The appellant and the Female Worker entered into an arrangement to allow the Female Worker to receive employment insurance benefits while continuing to render services to the appellant.
[7] In rendering his decision in dockets 2004-854(EI), 2005-852(EI) and 2005‑850(EI), the Minister determined that the employees did not hold employment under a contract of employment when they worked for the company, based on the following assumptions of fact in docket 2005‑854(EI):
(a) The appellant was incorporated on May 31, 1999; (admitted)
(b) The appellant operated a 12-room inn, a 3-bedroom cottage and a dining room with a capacity of 68 persons; (admitted)
(c) Before the appellant was incorporated, Mario Dumais had been operating the inn personally since 1994; (admitted)
(d) Since 2000, the company has been operating from May through November; (denied as drafted)
(e) The appellant hired up to 15 persons; (admitted)
(f) During the investigation, the appellant refused to disclose the documents requested by the respondent's representative; (denied as drafted)
(g) During the investigation, the counsel for the appellant advised the respondent's representative that there would be no interview with the Male Worker or the Female Worker; (admitted)
Jean‑François Dumais
(h) The employee worked for the appellant as head cook; (admitted)
(i) The Male Worker's duties consisted of setting the menus, dealing with suppliers and the other kitchen employees and preparing the meals themselves; (admitted)
(j) During very busy periods, the Male Worker worked up to 80 hours per week; (denied)
(k) No accounting was made of the Male Worker's hours of work; (admitted)
(l) From 1999 to 2003, the Male Worker's weekly salary was from $550 to $1,081; (denied)
(m) The Male Worker began rendering services for the appellant from the beginning of May; (denied)
(n) The Male Worker did not begin receiving payment until the end of June; (admitted)
(o) On May 10, 2002, Christiane Dumais stated to an HRDC investigator that in the spring, when the employees started working, they would bank hours so that they would not to be penalized when they became unemployed and so that they would have large paycheques; (denied)
(p) Following his alleged layoffs at the end of September or in mid October, the Male Worker continued to render services to the appellant without reporting any earnings; (denied as drafted)
(q) On October 17, 2000, the appellant issued to the Male Worker a record of employment that gave June 25, 2000, as the first day worked and October 14, 2000, as the last day worked. It also showed 572 insurable hours and 7 weeks with $1,248 as insurable earnings per pay period; (admitted)
(r) On October 2, 2001, the appellant issued to the Male Worker a record of employment that gave June 24, 2001, as the first day worked and September 29, 2001, as the last day worked. It also showed 588 insurable hours and $10,389.68 as insurable earnings; (admitted)
(s) On October 1, 2002, the appellant issued to the Male Worker record of employment that gave November 23, 2001, as the first day worked and September 21, 2002, as the last day worked. It also showed 572 insurable hours and $10,494 as insurable earnings; (admitted)
(t) On September 30, 2003, the appellant issued to the Male Worker a record of employment that gave September 30, 2002, as the first day worked and September 27, 2003, as the last day worked. It also showed 776 insurable hours and $16,866.72 as insurable earnings; (admitted)
(u) The Male Worker's records of employment do not reflect the actual hours and periods worked; (denied)
(v) The periods allegedly worked by the Male Worker did not correspond to the periods actually worked; (denied)
(w) The appellant and the Male Worker entered into an arrangement to allow the Male Worker to receive employment insurance benefits while still rendering services to the appellant; (denied)
Christiane Dumais
(x) The Female Worker worked for the appellant as an assistant manager; (admitted)
(y) The Female Worker's duties consisted of taking care of the reception desk, reservations, guest check-ins and check-outs and bills, helping with breakfast, making up rooms, doing the laundry, completing staff time sheets, keeping accounting records and managing accommodations staff; (admitted)
(z) The appellant stated that the Female Worker worked 12 hours per day, 7 days per week; (denied)
(aa) No accounting was made of the hours worked by the employee; (admitted)
(bb) From 1999 to 2003, the Female Worker's weekly salary ranged from $425 to $643; (denied)
(cc) The Female Worker began to render services to the appellant from the beginning of May; (denied)
(dd) The Female Worker did not begin receiving her pay until end of June; (admitted)
(ee) On May 10, 2002, the Female Worker stated to an HRDC investigator that when the employees began working in the spring, they banked hours of work so that they would not be penalized when they became unemployed and so that they would receive large paycheques; (denied as drafted)
(ff) After her alleged layoffs at the end of September or in mid October, the Female Worker continued to render services to the appellant without reporting any earnings; (denied)
(gg) On October 17, 2000, the appellant issued to the Female Worker a record of employment that gave June 25, 2000, as the first day worked and October 14, 2000, as the last day worked. It also showed 654 insurable hours and 8 weeks with $936 as insurable earnings per pay period; (denied)
(hh) On October 2, 2001, the appellant issued to the Female Worker a record of employment that gave June 24, 2001, as the first day worked and September 29, 2001, as the last day worked. It also showed 588 insurable hours and $7,421.20 as insurable earnings; (admitted)
(ii) On October 16, 2001, the appellant issued to the Female Worker a record of employment that gave October 7, 2001, as the first day worked and October 13, 2001, as the last day worked. It also showed 42 insurable hours and $530 as insurable earnings; (admitted)
(jj) On November 13, 2002, the appellant issued to the Female Worker a record of employment that gave May 12, 2002, as the first day worked and October 26, 2002, as the last day worked. It also showed 574 insurable hours and $7,952.54 as insurable earnings; (admitted)
(kk) On September 16, 2003, the appellant issued to the Female Worker a record of employment that gave June 21, 2003, as the first day worked and September 13, 2003, as the last day worked. It also showed 462 insurable hours and $7,085.65 as insurable earnings; (admitted)
(ll) The Female Worker's records of employment do not reflect the actual hours and periods worked; (denied)
(mm) The periods allegedly worked by the Female Worker did not correspond to the periods actually worked; (denied)
(nn) The appellant and the Female Worker entered into an arrangement to allow the Female Worker to receive employment insurance benefits while continuing to render services to the appellant; (denied)
[8] In rendering his decisions in dockets 2005-856(EI), 2005‑853(EI) and 2005‑849(EI), the Minister determined that when the employees worked for Mario Dumais, they were not at arms' length with him within the meaning of the Income Tax Act (the "ITA"), based on the following assumptions of fact in docket 2005‑856(EI):
(a) Mario Dumais was the sole owner of the corporate name "Auberge sur la Côte"; (admitted)
(b) The Male Worker is the son of Mario Dumais; (admitted)
(c) The Female Worker is the spouse of Mario Dumais; (admitted)
[9] In rendering his decisions in dockets 2005-856(EI), 2005-849(EI) and 2005‑853(EI), the Minister also determined that Mario Dumais and the Workers [translation] "were not dealing with each other at arm's length in their employment relationship" and that it was not reasonable to conclude that Mario Dumais and the employees [translation] "would have entered into a substantially similar contract of employment with each other if they had been dealing with each other at arm's length, taking into consideration the following circumstances":
(a) All of the appellant's employees had to fill out a time sheet, except for the Workers; (admitted)
(b) Except for the Workers, all the appellant's employees were paid at an hourly rate on the basis of the hours actually worked; (denied as drafted)
(c) The Workers were paid a fixed weekly salary no matter how many hours were actually worked; (denied as drafted)
(d) Before and after the disputed periods, the Workers rendered services to the appellant without receiving any pay; (denied)
(e) A worker dealing at arm's length would have been paid for the hours actually worked; (denied)
(f) A worker dealing at arm's length would not have worked 80 hours per week for a fixed weekly salary; (denied)
(g) On November 4, 2004, Mario Dumais stated to a representative of the respondent that he considered it to be normal for the Workers to perform unpaid work because this was a family business; (denied as drafted)
(h) A worker dealing at arm's length would not have performed unpaid work for the appellant; (denied as drafted)
(i) The Workers' remuneration, conditions of employment and duration of employment would not have been the same if they had been dealing at arm's length with the appellant. (denied)
[10] In rendering his decisions in dockets 2004-854(EI), 2005-852(EI) and 2005‑850(EI), the Minister determined that when the Workers worked for the company "Auberge de la Côte inc.", they were not dealing at arm's length with each other within the meaning of the I.T.A., based on the following assumptions of fact in docket 2005-854(EI):
(a) Mario Dumais was the sole shareholder of the appellant; (admitted)
(b) The Male Worker is the son of Mario Dumais; (admitted)
(c) The Female Worker is the spouse of Mario Dumais; (admitted)
(d) The Workers are related to a person who controlled the appellant; (admitted)
[11] In rendering his decisions, the Minister also determined that the company and the Workers [translation] "were not dealing at arm's length with each other in their employment relationship" and that it was not reasonable to conclude that the company would have entered into [translation] "a substantially similar contract of employment [with the Workers] if they had been dealing with each other at arm's length, taking into consideration the following circumstances":
(a) All of the appellant's employees had to fill out a time sheet, except for the Workers; (admitted)
(b) Except for the Workers, all of the appellant's employees were paid at an hourly rate on the basis of the hours actually worked; (denied as drafted)
(c) The Workers received a fixed weekly salary no matter how many hours they actually worked; (denied as drafted)
(d) Before and after the periods in dispute, the Workers rendered services to the appellant without being paid; (denied)
(e) A worker dealing at arm's length would have been paid for the hours actually worked; (denied)
(f) A worker dealing at arm's length would not have worked 80 hours per week for a fixed weekly salary; (denied)
(g) On November 4, 2004, Mario Dumais stated to a representative of the respondent that he considered it to be normal for the Workers to perform unpaid work because this was a family business; (denied as drafted)
(h) A worker dealing at arm's length would not have performed unpaid work for the appellant; (denied as drafted)
(i) The Workers' remuneration, conditions of employment and duration of employment would not have been the same if they had been dealing at arm's length with the appellant. (denied)
Position of the appellants
[12] The appellants submitted essentially the following arguments:
(i) The Minister's decisions were the result of an inappropriate exercise of his discretion, because he committed such serious and important mistakes as to discredit the whole discretionary process. Therefore, they ask that the Court set aside all the Minister's decisions because they are illegal. In other words, the appellants submit that the Minister acted in bad faith and that for this reason alone, the decisions must be set aside. They criticize Pierre Rinfret, who conducted the initial investigation at the request of HRDC (Human Resources Development Canada), of having a preconceived idea about the insurability of the Workers' employment before even having met them, of having refused to consider all the facts and circumstances related to their employment and of having used a series of tricks to trap the appellants and some of the Payers' employees. Finally, they submit that the decisions rendered by the appeal officer, Nicole Chouinard, were also essentially based on the same facts as those used by Mr. Rinfret.
(ii) The terms and conditions of employment for the Workers were reasonable, having regard to all the circumstances. The Payers and persons dealing with them at arm's length would have entered into contracts of employment substantially similar to those entered into by the Workers and the Payers. As regards the work performed by the Workers outside of the relevant periods, they submit that it was minimal, marginal and infrequent, and that it happened for very short periods of time and was unrelated to the work performed during the relevant periods. On the basis of the teachings of the Federal Court of Appeal,[1] they submit that the Minister should not have taken into consideration unpaid work performed by the employees outside of the relevant periods, having regard to its nature, duration and importance.
(iii) The Workers held employment under a contract of employment.
[13] In the years in question, the evidence revealed the following, among other things, with regard to the Payers:
(i) The Payers operated an inn in the Charlevoix region. This inn offered hotel, restaurant and catering services. The inn featured "B&B" packages (accommodations and breakfast) and complete packages (accommodations, breakfast and dinner).
(ii) The inn had 12 rooms for 2 to 4 persons, a 3-bedrooms cottage and a restaurant with a capacity of 68 persons. The restaurant was generally open for breakfast and dinner. In addition, reservations could be made for wedding and funeral receptions. Finally, the restaurant was not exclusively used by guests staying at the inn. It is should be noted that the Debeur Guide ranked the restaurant among the top 500 in Quebec.
(iii) The Payers had established a system allowing certain employees to bank their hours.
(iv) The GST returns submitted by the Payers showed sales during the periods in question as follows.[2]
· For Mario Dumais, operating Auberge sur la Côte enr.:
End of period
Sales
12-31-1999
03-31-2000
06-30-2000
$54,669
$0
$49,413
· For the company:
End of period
Sales
09-30-2000
12-31-2000
03-31-2001
06-30-2001
09-31-2001
12-31-2001
03-31-2002
06-30-2002
09-30-2002
12-31-2002
03-31-2003
06-30-2003
09-30-2003
$221,388
$49,879
$666
$60,332
$246,918
$47,786
$0
$47,337
$258,818
$50,208
$0
$46,158
$259,869
(v) The registrations in the company's guestbook for 2001[3] showed there had been
· 21 overnight stays during the week of May 6
· 28 overnight stays during the week of May 13
· 20 overnight stays during the week of May 20
· 6 overnight stays during the week of May 27
· 41 overnight stays during the week of June 3
· 62 overnight stays during the week of June 10
· 66 overnight stays during the week of June 17
· 111 overnight stays during the week of June 24
· 108 overnight stays during the week of July 1
· 129 overnight stays during the week of July 8
· 195 overnight stays during the week of July 15
· 191 overnight stays during the week of July 22
· 166 overnight stays during the week of July 29
· 161 overnight stays during the week of August 5
· 174 overnight stays during the week of August 12
· 104 overnight stays during the week of August 19
· 110 overnight stays during the week of August 26
· 85 overnight stays during the week of September 2
· 54 overnight stays during the week of September 9
· 38 overnight stays during the week of September 16
· 78 overnight stays during the week of September 23
· 58 overnight stays during the week of September 30
· 84 overnight stays during the week of October 7
· 32 overnight stays during the week of October
· 6 overnight stays during the week of October 21
· 42 overnight stays during the week of October 28
· 9 overnight stays during the week of November
· 8 overnight stays during the week of November 11
· 4 overnight stays during the week of November 18
· 2 overnight stays during the week of November 25
· 25 overnight stays during the week of December 25
· 8 overnight stays during the week of December 30
(vi) In 1999, the inn operated throughout the year, except for the month of November. From 2000, the inn operated from May to November. However, although Mr. Dumais testified that the inn was open from May to November, the period of greatest activity (the "high season") was from the Saint-Jean-Baptiste holiday to Thanksgiving, or occasionally to Labour Day. Mario Dumais's testimony on this point is worth citing:[4]
[translation]
Q. . . . Well, let's talk about the high season, which begins . . .
A. Around . . .
Q. . . .when?
A. Around the Saint-Jean-Baptiste holiday.
Q. Around the Saint-Jean-Baptiste holiday, that means around when?
A. Generally, it' always that, because if we don't have a reception or anything after, after Thanksgiving, that may be a quiet period, but it may also, depending on the seasons, depending on the heavy rains and the years, that it may even be quiet following Labour Day, which means that we do not have an occupancy rate of one hundred per cent (100%) during the week. There may only be five or six rooms a week.
. . .
I note right away that Mario Dumais had stated[5] to Ms. Chouinard that the high season went from the Saint-Jean-Baptiste holiday to Thanksgiving. From this, I conclude that the high season generally extended over a period of approximately 15 weeks and could occasionally last approximately 11 weeks. I note that the testimonies and statutory declarations given by the employees were so hazy, vague and imprecise about the duration of the high season that it is impossible to determine its duration. Mario Dumais also testified that the inn was quiet in the low season and that, for this reason, the employees did not work full time during this period. On this point, Mario Dumais explained that a considerable portion of the inn's turnover before the beginning of the high season consisted of deposits (50% of the cost of the stay) paid by clients for reservations at later dates. I note that Mario Dumais or the other appellants could have submitted in evidence the accounting records of the Payers to support this allegation. They did not do so. From this, I infer that this evidence would have been unfavourable to them. Mario Dumais also testified that the packages sold in the low season often involved B&B packages and that, for this reason, the restaurant served few suppers during this period. I immediately note that the inn guestbook for 2001 does not show this. In fact, an attentive study of the guestbook leads me to conclude that, at least for the year 2001, the B&B packages represented only a small percentage of the packages sold by the Payers in the low season. I also note that the appellants' testimony did not in any way mention the restaurant's turnover related to catering, wedding and funeral receptions and meals served to clients not staying at the inn. The appellants had a unique opportunity to support their allegations to the effect that, for all intents and purposes, the restaurant only served breakfast during the low season, by submitting the accounting records of the Payers and the reservations book of the restaurant. They did not do so. From this, I infer that this evidence would also have been unfavourable to them.
[14] The evidence revealed the following about the Male Worker's employment:
(i) The appellants described the employee's tasks as follows[6]:
[translation]
General work
- Preparing menus at the beginning of the season (at home)
- Preparing orders at the beginning of the season (at home)
- Hiring interviews (as needed)
- Preparing suppers (special events)
- Managing kitchen staff
- Keeping the kitchen in good order
Specific tasks
- Keeping inventory day after day, week after week
- Making food orders, receiving and storing them
- Preparing sauces
- Preparing pastries
- Preparing soups
- Preparing fish and meats (cuts, marinades)
- Preparing supper from 6:00 p.m. to 10:30 p.m.
- Preparing smoked salmon
- Preparing ice cream
- Preparing vegetables
- Preparing veal stock
- Preparing home-made cretons
- Preparing breakfast plates (placing plates)
The Chef's work begins with the start of the high season, around the end of June, and finishes with the end of the high season, in early or mid October. At the beginning and end of the season, the chef's work is sporadic, depending on client demand.
(ii) During the year 1999, the Male Worker received remuneration totalling $8,826 from Mario Dumais, as follows:
- $563 for the week of June 20
- $563 for the week of June 27
- $550 for the week of July 4
- $550 for the week of July 11
- $550 for the week of July 18
- $550 for the week of July 25
- $550 for the week of August 1
- $550 for the week of August 8
- $550 for the week of August 15
- $550 for the week of August 22
- $550 for the week of September 12
- $550 for the week of September 19
- $550 for the week of September 26
- $550 for the week of October 3
- $550 for the week of October 10
- $550 for the week of October 17
It should be noted that the Male Worker was not paid for the week of August 29 (even though it was the high season) and the week of September 5 (also in the high season).
(iii) During the year 2000, the Male Worker received remuneration totalling $1,248 from Mario Dumais, as follows:
- $624 for the week of June 11, 2000
- $624 for the week of June 18, 2000
(iv) During the year 2000, the Male Worker did not receive any remuneration from the Payers for the high season weeks of June 25 and July 2.
(v) During the year 2000, the Male Worker received remuneration totalling $8,736 from the company, as follows:
- $624 for the week of July 9
- $624 for the week of July 16
- $624 for the week of July 23
- $624 for the week of July 30
- $624 for the week of August 6
- $624 for the week of August 13
- $624 for the week of August 20
- $624 for the week of August 27
- $624 for the week of September 3
- $624 for the week of September 10
- $624 for the week of September 17
- $624 for the week of September 24
- $624 for the week of October 1
- $624 for the week of October 8
(vi) Therefore, during the year 2000, the Male Worker received remuneration totalling $9,984 from the Payers.
(vii) During the year 2001, in the period from June 24 to September 23 (i.e., 14 consecutive weeks), the Male Worker received a weekly salary of $724 from the company, for a total remuneration of $10,388.
(viii) During the year 2002, the Male Worker received remuneration totalling $10,494 from the company, as follows:
- $159 for the week of May 19;
- $795 for 13 consecutive weeks, beginning with the week of June 30 and ending with the week of September 22.
(ix) During the year 2003, the Male Worker received remuneration totalling $16,866 from the company, as follows:
- $901 for the week of June 1
- $901 for the week of June 8
- $1,045 for the week of June 15
- $1,045 for the week of June 22
- $901 for the week of June 29
- $901 for the week of July 6
- $901 for the week of July 13
- $901 for the week of July 20
- $901 for the week of July 27
- $901 for the week of August 3
- $1,081 for the week of August 10
- $1,081 for the week of August 17
- $901 for the week of August 24
- $901 for the week of August 31
- $901 for the week of September 7
- $901 for the week of September 14
- $901 for the week of September 21
- $901 for the week of September 28
(x) The Male Worker's records of employment showed the following:
· 672 insurable hours for the year 1999
· 736 insurable hours for the year 2000
· 630 insurable hours for the year 2001
· 574 insurable hours for the year 2002
· 462 insurable hours for the year 2003
(xi) The Male Worker received unemployment insurance benefits during the following periods:
(a) from October 31, 1999, to June 10, 2000 (benefits were $383 each);
(b) from October 15, 2000, to June 30, 2001 (benefits were $329 each);
(c) from September 30, 2001, to June 8, 2002 (benefits were $408 each);
(d) from September 22, 2002, to May 17, 2003 (benefits were $412 each).
(xii) The Male Worker's hours worked were not noted. Moreover, the appellants admitted that the insurable hours given in the Male Worker's records of employment did not reflect the actual number of hours worked during the relevant periods.
(xiii) In his statutory declaration[7] made in the presence of Mr. Rinfret, dated October 29, 2003, the Male Worker stated the following, among other things:
[translation]
(Q4) Is it correct to sat that, from the time when the inn begins operating, you start working in the kitchen?
(A) It depends. This year, I started being paid full time from June 2, but in previous years, the pay period began on June 24.
(Q5) What happened between Victoria Day, in May, and June 24?
(A) Nothing much goes on. I make my orders and draw up the menus. I prepare my kitchen for the summer re-opening.
(Q7) Are there clients at the inn between Victoria Day and June 24?
(A) There sometimes are, but with the bed-and-breakfast package. In mid May, I start to open the kitchen, and things start up full time at the Saint-Jean-Baptiste holiday.
(Q8) During the period from the opening of the kitchen in mid May to the end of June, were you paid for this work?
(A) Well, no. I did ¾ of the work at home. I have to wash the cold storage room, clean the kitchen. I don't ask for any salary for that. I came today to help my father close the inn. I won't be paid for that. It's a family business.
(Q9) If I understand correctly, you may sometimes come to the inn to render services outside of your periods of employment without being paid?
(A) For sure. It's not as if there was work for three weeks. Today, I came to (close) empty the hot water tanks. In the winter, I may come and remove the snow on the roof, and I am not paid. I just bought a house and I may go to BMR to buy materials; my father pays me half of the cost for services rendered. I am not here 20 hours per week.
. . .
(Q12) Who prepares supper from October to December?
(A) For example, last year, at Thanksgiving, it was me, and I reported it. Outside of that, if it's only two or three suppers, it may be my assistant or it's my father who prepares supper.
(xiv) In her appeal report,[8] Nicole Chouinard summed up the statements made by Mario Dumais concerning the employee as follows:
[translation]
Concerning Jean-François Dumais:
29. Mr. Dumais states that Jean-François has been working for the business since the very beginning, in 1994.
30. For several years, he has held the position of head cook. As part of his duties, he is in charge of menus, the kitchen and dealings with suppliers. He may also work elsewhere in the inn. His tasks are determined by himself and Mario Dumais, who supervises him in the performance of his work. He adds that Jean-François Dumais begins working in May, to prepare the kitchen with a pre-season menu.
31. Mr. Dumais states that Jean-François has no training as a head cook. He is self-taught. He learned everything he knows from Jean-Louis Maltais, who was head cook at the inn in 1997 and 1998. Jean-François subsequently took one or two cooking courses consisting of a few hours' instruction. Mr. Dumais adds that the salary he paid Mr. Maltais was higher than what he pays Jean-François because Mr. Maltais had 15 to 20 years' experience as a cook.
32. Breakfast and supper is served in the inn's restaurant. Dinners are served only when there is a group reservation.
33. His work schedule is from 12 noon to 10:30 p.m., 6 days a week. He has Sundays off. His hours of work are always the same, even during the high season. He works fewer hours in the low season. Mr. Dumais explains that he does not note his hours worked and does not complete a timesheet like the other employees because he is a m