Federal Court of Appeal - Jaillet v. Canada (Minister of national revenue)

[1] This is an application for judicial review of a decision of the Tax Court of Canada in which Somers D.J.T.C.C. dismissed the applicants' appeal against a determination made by the Minister of National Revenue (Minister). The determination excepted the applicants from insurable employment pursuant to section 3 of the Unemployment Insurance Act (Act).

[2] The Tax Court judge reviewed the assumptions made by the Minister in the Reply to the Notice of Appeal. He heard several witnesses, including both applicants. He applied to the facts ascertained at the hearing the principles elaborated by this Court in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.), i.e., the degree of control exercised by the employer, the ownership of tools, the chance of profit and the risks of loss, and, in some cases, the degree of integration. He was also mindful of the warning of our colleague Décary J.A. in Charbonneau v. M.N.R., [1996] F.C.J. No. 1337 to the effect that monitoring the result of the work done is not to be confused with the concept of controlling the worker.

[3] In able arguments, counsel for the applicants tried to convince us that the Trial judge erred in his application of the Wiebe Door test. He should have found that there was a relationship of subordination and an adequate degree of control exercised by the Payor. Control in the forest industry, he said, is not a criterion as rigid as it is in other types of employment. He referred us to the case of Lizotte v. Canada, [1988] T.C.J. No. 29. With respect to the issue of risks and profit, counsel submitted that the judge mistakenly concluded that an arrangement of payment by volume could not constitute a contract of service. His conclusion is said to conflict with subsection 3(1) of the Act which permits "earnings... calculated by time or by the piece" to qualify as insurable employment. Finally, counsel argued that the work of the applicants was necessary to the existence of wood cutting on the lot designated by the company and, therefore, was integrated to the business of the company.

[4] We have not been persuaded that the Tax Court judge erred in this case in the application of the Wiebe Door test. His findings of fact as regards all the elements of the test were supported by the evidence. The inferences he drew from these findings with respect to control, risks of loss and integration were reasonable and cannot be interfered with.

[5] For these reasons, the application for judicial review will be dismissed with costs.

"Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-751-00

STYLE OF CAUSE: ANDRÉ JAILLET and JACQUES JAILLET, Applicants

MINISTER OF NATIONAL REVENUE, Respondent

PLACE OF HEARING: Fredericton, New Brunswick

DATE OF HEARING: October 17, 2002

CORAM: RICHARD C.J.

LÉTOURNEAU J.A.

NADON J.A.

REASONS FOR JUDGMENT

OF THE COURT BY: LÉTOURNEAU J.A.

DATED: October 17, 2002

APPEARANCES:

Mr. Maurice C. Richard FOR THE APPELLANT

Ms. Natalie Lessard FOR THE RESPONDENT

SOLICITORS OF RECORD:

Clermont Richard & Assoc. FOR THE APPELLANT

9550 Main Street, Unit 1

Richibucto, N.B. E4W 4E4

Department of Justice Canada FOR THE RESPONDENT

200 René-Lévesque Blvd. West

East Tower, 9^th Floor

Montreal, Quebec H2Z 1X4