Ottawa, Ontario, February 20, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
Applicant
and
Respondent
REASONS FOR ORDER AND ORDER
MARTINEAU J.
[1] This is an application for judicial review aimed at obtaining a writ of mandamus obliging the respondent to examine the applicant’s adjustment requests on the basis of the criteria established in Wiebe Door Services Ltd. v. Canada (Minister of National Revenue), [1986] 3 F.C. 553 (F.C.A.), replicated in Interpretation Bulletin IT-525R (consolidated).
[2] From July 2000 to December 2002, the applicant worked as a guest artist for Cirque du Soleil Inc. (the Cirque) and for some of its subsidiaries, which considered him an employee. The applicant contested this position and undertook various steps in 2003 and 2004 with the relevant tax authorities to be recognized as a self-employed worker for the taxation years in question.
[3] After having considered the applicant’s special situation, the Ministère du Revenu du Québec decided to consider him a self-employed worker. However, the respondent refused to accept the adjustment requests because they had not been made by the applicant within the specified time limits and because the prior decisions concerning insurability under the Employment Insurance Act S.C. 1996, c. 23 (the EIA) are final and binding and cannot be revoked.
[4] In his written submissions, the respondent acknowledged that the requests for adjustment had been dismissed on grounds that were irrelevant or mistaken and that the impugned decision did not meet the standard of reasonableness set out in Lanno v. Canada (Canada Revenue Agency) (2005), 334 N.R. 348 (F.C.A.), 2005 FCA 153 and Maloshicky v. Canada (Canada Revenue Agency), [2005] 4 C.T.C. 12 (F.C.), 2005 FC 978.
[5] The applicant, who is representing himself in these proceedings, admits that this Court cannot oblige the Minister of National Revenue (the Minister) to recognize his status as a self-employed worker (Apotex Inc. v. Canada, [1994] 1 F.C. 742 (F.C.A.), 162 N.R. 177, aff’d by [1994] 3 S.C.R. 1100 (S.C.C.)).
[6] Given the fact that:
a) the Minister agrees to reconsider the adjustment request for the 2002 taxation year as a valid notice of objection under paragraph 165(1)(a) of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (ITA); and that
b) the Minister agrees to reconsider the adjustment requests for the 2000 and 2001 taxation years under subsection 152(4.2) of the ITA, taking into account the expiration of the normal reassessment period;
all that is required is to refer the case back to the respondent so a decision may be rendered in accordance with the law on the basis of the applicant’s specific situation and the applicable criteria for distinguishing a performing artist who is an employee from an artist who is an independent contractor.
[7] On this point, I note that the Federal Court of Appeal conducted a detailed examination of the relevant case law in Wiebe Door, supra. According to MacGuigan J.A., the best synthesis of the problem is that of Cooke J. in Market Investigations, Ltd. v. Minister of Social Security, [1968] 3 All. E.R. 732 at pages 737-38 (Q.B.D.), followed by the Privy Council in Lee Ting Sang v. Chung Chi-Keung, [1990] 2 A.C. 374 at page 382 (P.C.), per Lord Griffiths. Although there is no universal test for determining whether a person is an employee or an independent contractor, in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 204 D.L.R. (4th) 542, the Supreme Court of Canada mentioned that the approach taken by Cooke J. in Market Investigations, supra, was “persuasive”. As mentioned by Major J. in Sagaz Industries at paragraph 47, in making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. Obviously, the above factors constitute a non-exhaustive list, and there is no set formula as to their application.
[8] Having said this, I hasten to add that the Federal Court of Appeal recently pointed out in 9041-6868 Québec Inc. v. Canada (Minister of National Revenue), [2005] F.C.J. No. 1720 (F.C.A.) (QL), 2005 FCA 334, that, in the province of Quebec, when section 8.1 of the Interpretation Act, R.S.C., c. I-21 came into force on June 1, 2001, the immediate effect was to restore the role of the civil law in matters under the jurisdiction of this Court, to bring to light how the common law might have been borrowed from, over the years, in cases where Quebec civil law applied or should have applied, and to caution us against any such borrowing in future. In the present case, the issue is whether the contract in question was a contract of employment, rather than one of enterprise, and thus insurable within the meaning of paragraph 5(1)(a) of the EIA. Endorsing the general approach suggested by Archambault J. of the Tax Court of Canada in his article entitled “Contract of Employment: Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should Replace It” in The Harmonization of Federal Legislation With Quebec Civil Law and Canadian Bijuralism: Second Collection of Studies in Tax Law (2005) Montréal, APFF, 2005, Décary J.A. concluded that, even if it was probable in most cases that where contracts are similar they would be characterized similarly whether the civil law or common law rules are applied, the fact remains that it is the Civil Code of Québec (C.C.Q.) that determines what rules apply to a contract entered into in Quebec. Those rules are found in, inter alia, the provisions of the Code dealing with contracts in general (article 1377 C.C.Q. et seq.) and the provisions dealing with the “contract of employment” (articles 2085 to 2097 C.C.Q.) and the “contract of enterprise or for services” (articles 2098 to 2129 C.C.Q.). Thus, in Quebec, a contract of employment is a contract by which the employee undertakes for a limited period to do work for remuneration according to the instructions and under the direction or control of an employer (article 2085 C.C.Q.). However, in the case of a contract of enterprise or for services, the contractor or the provider of services undertakes to carry out physical or intellectual work for a client or to provide a service for a price which the client binds himself to pay (article 2098 C.C.Q.). In this case, the contractor or the service provider is free to choose the means of performing the contract, and no relationship of subordination exists between the contractor or the service provider and the client in respect of such performance (article 2099 C.C.Q.).
[9] As can be seen, under civil law, the degree of control that the employer may or may not have in practice over the worker’s activities is a distinctive determining factor. To determine whether there is a relationship of subordination, one looks for, on the one hand, certain indicia of the ability to control, such as mandatory presence at a workplace, a somewhat regular assessment of work, the imposition of rules of conduct or behaviour, an obligation to provide activity reports, and control over the quantity and quality of the services (Robert P. Gagnon, Le droit du travail du Québec, 5th Ed., Cowansville, Quebec, Yvon Blais, 2003 at paragraph 92). On the other hand, whether or not the worker supplies his or her own tools, hires assistants, invests financially and is responsible for the management, as well as the extent to which he or she would profit from the performance of the work, are factors that are still relevant to distinguishing the contract of employment from the contract of enterprise (or for services), as was recently decided by the Quebec Court of Appeal in 97980 Canada Inc. v. Québec (Deputy Minister of Revenue), [2005] J.Q. No. 995 (Q.C.A.), which applied the general approach described by the Supreme Court of Canada in Sagaz, supra.
[10] In this case, the parties admit that the distinction between an employee and an independent contractor in the field of the performing arts is blurred, especially since in this case the applicant’s performance as a guest artist for the Cirque was a strongman act, which he says he developed entirely on his own and claims was unique to him.
[11] Speaking of the situation of free-lance technicians working on the production of television shows, the Federal Court of Appeal noted in Productions Petit Bonhomme Inc. v. Canada (Minister of National Revenue) (2004), N.R. 356, 2004 F.C.A. 54, that it was dealing with a “hybrid contractual situation”, as some factors favoured a contract of employment (article 2085 C.C.Q.) and others a contract of enterprise or of services (article 2098 C.C.Q.). Having said this, and as noted by Décary J.A., in view inter alia of the Act respecting the professional status and conditions of engagement of performing, recording and film artists, R.S.Q., c. S-32.1 and the Status of the Artist Act (1992, c. 33,) as well as union certification orders made by the authorities in question, it appears that legislatures, producers and workers in the performing, recording and film field do not hesitate to regard workers in those fields as independent contractors (Productions Petit Bonhomme, supra, at paragraphs 4 to 7).
[12] However, the fact must be underlined that in the field of the performing arts, certain traditional indicia of control do not always allow a distinction to be drawn between an employee and an independent contractor. For example, decisions concerning rehearsals, the number of shows given during one season and the dates, the costumes worn, the choice and replacement of artists for a collective performance will most probably always be made by the art company, whether it is ballet, opera or theatre. As underlined by Mr. Justice Campbell J. Miller of the Tax Court of Canada in Royal Winnipeg Ballet v. Canada (Minister of National Revenue), 2004 TCC 390 at paragraph 33, 35 C.C.E.L. (3d) 101, dockets 2003-2569(EI) and 2003-2580 (CPP), on appeal: appeal docket A-443-04 (judgement reserved):
To rely on those factors to find an employment arrangement, would effectively preclude any possibility of an independent contractor arrangement in a performing arts setting. I find that these type of factors do not assist in drawing a distinction between an employee and an independent contractor in the performing arts environment. Only those factors where there is room to manoeuvre to a position of more or less control should be assessed.
[13] On this point, I note that the applicant, as a guest artist, is in a different position than the in-house artists who participate in the Cirque’s visual shows, and this must be taken into consideration when an attempt is made at applying the usual employment criteria. This is definitely a relevant question which will have to be considered on the merits by the Minister, who will have to examine the contract concluded between the applicant and the Cirque to see if it reflects the true relationship that existed in fact between the same parties (9041-6868 Québec Inc., supra, at paragraph 9). In interpreting the contract, it must be determined what the mutual intent of the parties was, rather than restricting the analysis to the literal meaning of the terms used. As the case may be, one must, for example, take into consideration the parties’ stated intent, the circumstances in which the contract was formed, and the interpretation which has already been given to it by the parties (articles 1425 and 1426 C.C.Q.). It will eventually be up to this Court, the Tax Court of Canada or even the Federal Court of Appeal to examine the legality of any decision made by the Minister or to determine the applicant’s status as an employee or independent contractor.
[14] I will now discuss the matter of costs. The applicant is claiming a total amount of $13,229.83, detailed as follows:
· Reimbursement of the cost of supplies for preparing the case: $1,157.75
· Reimbursement of transportation expenses: $3,104.50
· Reimbursement of postal fees: $150.00
· Reimbursement of tax consultant fees for the adjustment requests: $2,217.58
· Reimbursement of the time spent on research, preparation of the application for judicial review and the investigation required to discover new facts: $4,800.00
· Reimbursement of the consultation fees of Vilmont Dupuis, Notary: $1,800.00.
[15] The Federal Courts Rules SOR/98-106 (the Rules) deal specifically with costs in Part 11 (sections 400 to 422). Subsection 400(1) of the Rules specifies that the Court has full discretionary power over the amount and allocation of costs and for determinating by whom they are to be paid. Subsection 400(3) of the Rules mentions that in exercising its discretion the Court may take into consideration any of a number of factors set out therein. Paragraph 400(3)(o) of the Rules is clear: the preceding list is not exhaustive, and the Court may take other factors into consideration to determine the amount of the costs.
[16] In Sherman v. Canada (Minister of National Revenue), [2004] F.C.J. No. 136 at paragraphs 8-11 (F.C.A.) (QL), 2004 FCA 29, the following was noted:
The purpose of the costs rules is not to reimburse all the expenses and disbursements incurred by a party in the pursuit of litigation, but to provide partial compensation. The costs awarded, as a matter of principle, are party-and-party costs. Unless the Court orders otherwise, Rule 407 requires that they be assessed in accordance with column III of the table to Tariff B. As the Federal Court properly said in Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233, Tariff B represents a compromise between compensating the successful party and burdening the unsuccessful party.
Column III of the table to Tariff B is intended to address a case of average complexity: Apotex Inc. v. Syntex Pharmaceuticals International Ltd., 2001 FCA 137. The Tariff includes counsel fees among the judicial costs. Since it applies uniformly across Canada, it obviously does not reflect a counsel’s actual fees as lawyers’ hourly rates vary considerably from province to province, from city to city and between urban and rural areas.
There is no doubt that the appellant, who was unrepresented, expended time and effort in the pursuit of his claims. However, as the Alberta Court of Appeal pointed out in Dechant v. Law Society of Alberta, 2001 ABCA 81, “represented litigants also sacrifice a considerable amount of their own time and effort for which no compensation is paid”. Furthermore, their lawyers’ fees are not fully reimbursed. I agree that “applying an identical cost schedule to both represented and unrepresented litigants will work an inequity against the represented litigant who, even with an award of costs, will be left with some legal fees to pay and no compensation for a personal investment of time”: ibid, paragraph 16. It could also promote self-litigation as an occupation: ibid, paragraph 17; see also Lee v. Anderson Resources Ltd., 2002 ABQB 536, (2002) 307 A.R. 303 (Alta Q.B.).
In the present instance, if the appellant had been represented, he would have been awarded party and party costs according to column III of the table to Tariff B. I believe that his award of costs as an unrepresented litigant can, at best, equal, but should not exceed, what would have otherwise been paid to him if he had been represented by counsel. I should add that the unrepresented litigant enjoys no automatic right to the full amount contemplated by the tariff. The amount of the award is in the discretion of the Court. The concept of a “moderate allowance” is an indication of a partial indemnity although, as previously mentioned, I accept that, in appropriate but rare cases, the amount of that indemnity could be equal to what the tariff would grant to a represented litigant
[17] However, in Entreprises A.B. Rimouski Inc. v. Canada, [2000] F.C.J. No. 501 at paragraph 5 (F.C.A.) (QL), 262 N.R. 276, the Federal Court of Appeal clearly indicated that, in the exercise of its power to award costs under subsection 400(1) of the Rules, the Court may award a party a certain indemnity for expenses that are not disbursements within the normal meaning, or legal fees:
According to the file, the claim for legal fees represents amounts paid to a lawyer who was advising Mr. Banville “behind the scenes” regarding his appearance before our Court. As Rouleau J. stated, a person who represents himself cannot, in principle, be awarded costs for legal fees. In fact, legal fees can only be reimbursed if awarded on a “solicitor-and-client” basis in accordance with subparagraph 400(6)(c) of the Federal Court Rules, 1998. Nevertheless, Rouleau J. allowed $2,500 for legal fees as well as most of the disbursements incurred by the lawyer, recognizing that Mr. Banville was representing himself and that the lawyer's advice may have facilitated his submissions before this Court. Mr. Banville is in no position to complain.
[18] Moreover, in Desloges v. Canada (Attorney General), [2001] F.C.J. No. 1627 at paragraph 6 (F.C.T.D.) (QL), 2001 FCT 1142, assessment officer Stinson dealt specifically with travelling expenses as follows:
A disbursement is a payment by either side in litigation to a disinterested third person for a service, not falling within the professional expertise of a solicitor (except in limited circumstances: see Reasons dated July 29, 1999, in T-1941-93, James L. Ferguson v. Arctic Transportation Ltd. et al.) which is reasonable and necessary to advance the litigation. Disbursements are usually paid through a party's solicitor, but they are sometimes paid directly by the client under the supervision of the solicitor having conduct. Tariff B authorizes disbursements, but does not prohibit categories of disbursements. Here, the Applicant had to perform the tasks advancing the litigation and pay the associated disbursements directly. There is no reason to preclude his travel expenses, if reasonable and necessary to advance the litigation, as they would not have been incurred but for this litigation. His proof for the travel expenses is less than absolute. For example, the details of what was served or filed on each trip are not there. Some trips were to educate himself on procedure by obtaining precedents. In matters such as Canadian Olympic Association v. USA Hockey Inc. et al. , A-472-97, February 22, 2001, 2001 FCA 32, I have allowed computer-assisted research, but for conservative amounts. Here, the evidence is unclear whether a lesser number of trips might have been possible. Process service firms and couriers are common tools used by law firms and the charges for those services are generally allowed as disbursements in costs. There are two rates for travel reimbursement used in the public service: currently, in Ontario, $0.42.5 per kilometre for the employer requested rate, and $0.13.0 per kilometre for the employee requested rate. I apply my conclusions in Carlile v. The Queen, 97 D.T.C. 5284 and allow a total of $110.00 for parking and transportation. The Applicant's Bill of Costs, presented at $490.53, is assessed and allowed at $344.79.
[19] In the case at bar, I am of the opinion that a lump-sum instead of assessed costs should be awarded to the applicant: see Barzelex Inc. v. EBN Al Waleed, [1999] F.C.J. No. 2002 at paragraph 11 (F.C.T.D.) (QL). In the present case, if the applicant had been represented, he would have obtained party-and-party costs under Column III of Tariff B. This is not a case in which faulty conduct by one of the parties or complex legal issues warrant an increased indemnity. I also take into consideration that the disbursements claimed, for example, the purchase of books and the tax consultant’s fees for the adjustment requests, cannot be claimed by the applicant. Other disbursements, even if actually incurred and which to me seem useful at first sight, cannot be awarded for the full amount, considering that they would not have been so high or would not normally have been reimbursed if the applicant had been represented by counsel. Accordingly, in the exercise of my discretion, I have decided to award the applicant a total amount of $3,500 in costs. This seems reasonable to me, considering the evidence on record and all the circumstances of the matter, including the fact the respondent agreed before the hearing that this application for judicial review be allowed in part by the Court.
ORDER
THE COURT ORDERS:
1. The application for judicial review is allowed in part;
2. The adjustment requests for the taxation years 2000, 2001 and 2002 are referred back to the Minister of National Revenue for decision in accordance with the law on the basis of the applicant’s special situation and the applicable criteria for distinguishing a performing artist who is an employee from an artist who is an independent contractor;
3. Costs in an amount of $3,500 are awarded to the applicant.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1115-05
STYLE OF CAUSE: GINAUD DUPUIS V. CANADA REVENUE AGENCY
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 9, 2006
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Martineau
APPEARANCES:
|
Ginaud Dupuis
|
FOR THE APPLICANT Representing himself |
|
Suzanne Morin
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Ginaud Dupuis Mistissini, Quebec
|
FOR THE APPLICANT Representing himself |
|
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
|
FOR THE RESPONDENT |