Grimard v. Canada, (2009) 392 N.R. 252 (FCA)

• Judge: Létourneau, Blais and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 04, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 392 N.R. 252 (FCA);2009 FCA 47

Grimard v. Can. (2009), 392 N.R. 252 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. MR.034

Michel Grimard (appelant) v. Sa Majesté la Reine (intimée)

(A-39-08; 2009 FCA 47; 2009 CAF 47)

Indexed As: Grimard v. Canada

Federal Court of Appeal

Létourneau, Blais and Trudel, JJ.A.

February 19, 2009.

Summary:

The taxpayer was a doctor who worked as a medical assessor with the workers' compensation administrative tribunal eventually known as the Commission des lésions professionnelles (Que.). The Minister of National Revenue reassessed the taxpayer on the basis that his relationship with the Commission constituted a contract of employment rather than a contract for services. As a result, deductions for expenses such as rent, office expenses, travel, and telephone, computer and stationery costs were disallowed. The taxpayer appealed.

The Tax Court of Canada dismissed the appeal. The taxpayer appealed.

The Federal Court of Appeal dismissed the appeal.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - A Tax Court of Canada judge wrote an article for a tax law publication - He cited the article three times in his judgment in the present case - At issue was whether there was bias or appearance of bias - The Federal Court of Appeal ruled that there was none but stated as follows: "It is always difficult and even perilous for a serving judge to publish in an article his or her opinions on a subject or issue on which he or she may eventually be called upon to rule. This may give rise to a perception on the part of a litigant, especially a self-represented citizen, that the judge has already made up his or her mind and that the judge is not in any way willing to set aside a firm stance that he or she has previously taken and stated. In this area, perception is often and unfortunately just as or even more important than reality. Obviously this problem does not arise when the judge's opinions are given in a decision that he or she has rendered. Because a judge must apply the law consistently, he or she may, without any subsequent difficulty, cite as precedents the judgments he or she has previously rendered and which have become res judicata" - See paragraphs 69 to 76.

Income Tax - Topic 522

Income from office or employment - Income from employment - What constitutes employment contract - The taxpayer was a doctor who worked as a medical assessor with the workers' compensation administrative tribunal eventually known as the Commission des lésions professionnelles (Que.) - The Minister of National Revenue reassessed the taxpayer on the basis that his relationship with the Commission constituted a contract of employment rather than a contract for services - The Tax Court of Canada, applying Quebec Civil Law as a supplement to federal law, as required under s. 8.1 of the Interpretation Act (Can.), affirmed that the relationship was a contract of employment - The court attempted to determine if there was any subordination between the taxpayer and the Commission - The court analysed the contract, reviewed the intention of the parties and examined their actual behaviour - The court took numerous indicia into consideration, including those used in common law provinces, which could enable it to determine the legal nature of the parties' relationship - The Federal Court of Appeal ruled that the Tax Court did not err in deciding to apply Quebec Civil Law and in its actual application of it - See paragraphs 47 to 67.

Quebec Nominate Contracts - Topic 5202

Contracts of enterprise or for services - General - What constitutes - [See first Quebec Nominate Contracts - Topic 6403 and Income Tax - Topic 522 ].

Quebec Nominate Contracts - Topic 6403

Employment contracts - General - Employer-employee relationship - What constitutes - The Minister of National Revenue reassessed the taxpayer on the basis that his work relationship with a Quebec administrative tribunal constituted a contract of employment rather than a contract for services - The Tax Court of Canada, applying Quebec Civil Law as a supplement to federal law, as required under s. 8.1 of the Interpretation Act (Can.), affirmed that the relationship was a contract of employment - The court upheld the reassessment - The Federal Court of Appeal upheld the decision - The court discussed how Quebec Civil Law and the Common Law determined whether a work relationship constituted a contract of employment or a contract for services - The court concluded as follows: "In short, in my opinion there is no antinomy between the principles of Quebec civil law and the so-called common law criteria used to characterize the legal nature of a work relationship between two parties. In determining legal subordination, that is to say, the control over work that is required under Quebec civil law for a contract of employment to exist, a court does not err in taking into consideration as indicators of supervision the other criteria used under the common law, that is to say, the ownership of the tools, the chance of profit, the risk of loss, and integration into the business" - See paragraphs 27 to 44.

Quebec Nominate Contracts - Topic 6403

Employment contracts - General - Employer-employee relationship - What constitutes - [See Income Tax - Topic 522 ].

Cases Noticed:

Ministre du Revenu national v. Construction Bérou Inc. (1999), 251 N.R. 115; 99 D.T.C. 5841 (F.C.A.), consd. [para. 21].

Ministre du Revenu national v. Mont-Sutton Inc. (1999), 247 N.R. 235 (F.C.A.), consd. [para. 22].

St-Hilaire v. Canada (Procureur général) et al., [2001] 4 F.C. 289; 277 N.R. 201 (F.C.A.), consd. [para. 25].

D & J Driveway Inc. v. Minister of National Revenue (2003), 322 N.R. 381; 2003 FCA 453, refd to. [para. 33].

Dynamex Canada Inc. v. Mamona et al. (2003), 305 N.R. 295; 2003 FCA 248, refd to. [para. 33].

Wolf v. Minister of National Revenue, [2002] 4 F.C. 396; 288 N.R. 67 (F.C.A.), consd. [para. 36].

9041-6868 Québec Inc. v. Minister of National Revenue (2005), 350 N.R. 201; 2005 FCA 334, refd to. [para. 37].

Livreur Plus Inc. v. Minister of National Revenue et al. (2004), 326 N.R. 123; 2004 FCA 68, refd to. [para. 38].

Canada (Procureur général) v. Charbonneau (1996), 207 N.R. 299 (F.C.A.), refd to. [para. 38].

Vulcain Alarme Inc. v. Ministre du Revenu national (1999), 249 N.R. 1 (F.C.A.), refd to. [para. 42].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, appld. [para. 46].

Canada (Attorney General) v. Les Productions Bibi et Zoé Inc. (2004), 323 N.R. 356; 2004 FCA 54, refd to. [para. 67].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 71].

Gilbert v. Canada - see Côté v. Ministre du Revenu national.

Côté v. Ministre du Revenu national, [2000] N.R. Uned. 133 (F.C.A.), consd. [para. 81].

Statutes Noticed:

Interpretation Act, R.S.C. 1985, c. I-21, sect. 8.1 [para. 18].

Authors and Works Noticed:

Allard, M.P., and Jacquier, C., La valse-hésitation de la Cour d'appel fédérale dans l'application des lois fédérales au Québec (2007-2008), 28 R.P.F.S. No. 1, p. 58 [para. 2].

Archambault, Pierre, Contract of Employment: Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should Replace It, in Canada, Department of Justice, Second Collection of Studies in Tax Law (2005): The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, generally [para. 69].

Gagnon, Robert P., Le droit du travail au Québec (5th Ed. 2003), p. 67 [para. 36].

Counsel:

Michel Grimard, on his own behalf;

Claude Lamoureux, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Montreal, Quebec, on February 4, 2009, by Létourneau, Blais and Trudel, JJ.A., of the Federal Court of Appeal. The following decision of the Court of Appeal was delivered by Létourneau, J.A., at Ottawa, Ontario, on February 19, 2009.