Meunier v. M.N.R.
(May 7, 2015 – 2015 TCC 111, Favreau J.).
This is a decision on a number of EI appeals heard on common evidence. The alleged employer, 7547978 Canada Inc., used workers to do demonstrations of product in the places of business of its various retail clients. It argued that it exercised no control over the workers and that they were therefore not engaged in insurable employment. The Court disagreed and dismissed the appeals on the basis that the level of control exercised over the workers made them employees.
The facts were simple:
 In the alternative, the Deputy Attorney General of Canada maintains that the employment insurance premiums were payable, relying on the following additional facts:
(a) Impact Détail is also a company specialized in merchandizing, sampling and display mounting for large retailers that operate in Quebec;
(b) Impact Détail obtained contracts from big stores like Loblaws;
(c) 7547978 Canada Inc. obtained subcontracts with the clients of Impact Détail, like Loblaws;
(d) 7547978 Canada Inc. invoiced clients directly or invoiced Impact Détail for the contracts and subcontracts completed by 7547978 Canada Inc.’s employees;
(e) The places of work were determined by 7547978 Canada Inc. based on its contracts or subcontracts with the clients;
(f) The schedule and the tasks performed by the workers were determined by 7547978 Canada Inc.’s clients;
(g) 7547978 Canada Inc. supplied workers to complete contracts or subcontracts with clients;
(h) 7547978 Canada Inc.’s clients or their staff supervised the workers while they put up and took down shelves, and displayed and labelled merchandise;
(i) 7547978 Canada Inc.’s clients or their staff explained the tasks to be completed to the workers;
(j) 7547978 Canada Inc.’s clients or their staff often provided workers with planograms to follow in order to complete the tasks requested;
(k) The tasks to be carried out by the workers had to comply with the instructions provided by 7547978 Canada Inc.’s clients and had to be completed to their satisfaction;
(l) The clients’ employees completed tasks similar to those completed by 7547978 Canada Inc.’s workers, e.g. putting up and taking down shelves, arranging and labelling merchandise; and
(m) The invoices sent by 7547978 Canada Inc. to Impact Détail or clients provided the amounts paid per hour to each worker and the amounts for travel (i.e. mileage), accommodation and meals when the workers had travelled for work.
The Court concluded that the workers were controlled by 7547978, supporting the Crown’s position that they were employees:
 According to counsel for the appellants, Mr. Meunier and 7547978 Canada Inc. do not exercise any control over the workers. In my opinion, that allegation is incorrect. Mr. Meunier and 7547978 Canada Inc. exercise some control over the workers. First, Mr. Meunier gives instructions to the workers by telling them the work location, the start time, the general nature of the work and the estimated duration of the work. When the work location is far, Mr. Meunier organizes transportation by car based on his requirements, and reserves hotel or motel rooms according to his protocol. In all instances, Mr. Meunier has a team leader on site to keep track of the hours worked by each worker and to facilitate communication with the representative of the retailer or the retailer’s parent company. Specific instructions regarding the work to perform are provided on site by the representative of the retailer or of the parent company or by providing planograms, if not previously provided. Workers are assigned to each required task by the on-site team leader, either alone or together with the representative of the retailer or of the parent company, based on the worker’s experience. If there are complaints or problems, the representative of the retailer or of the parent company contacts the on-site team leader so that he or she can resolve the problem or obtain one or more replacements.
 For workers conducting product demonstrations or tastings, the control exercised by Mr. Meunier is more pronounced because, in addition to providing certain clothing, he must ensure that the workers are safe by ensuring, in particular, that the equipment being used is safe.
 When Mr. Meunier calls workers to offer them work, they have no negotiating power concerning their conditions of employment: over wages, the time the work must be performed or how the work must be performed. Their only choice is to accept or reject the offer of work. The lack of a true negotiating power indicates that there was a relationship of subordination between the workers and Mr. Meunier.
 The main obstacle to recognizing the existence of a contract of enterprise or for services between, on the one hand, Mr. Meunier and 7547978 Canada Inc. and, on the other hand, the workers, stems from the fact that the workers do not have the freedom to choose the means of performing the contracts. The workers have, in fact, no freedom with respect to the means of performing the contracts. The terms and conditions of the work to be performed are in most cases pre established by Impact Détail Inc. together with the managers of the parent companies of the retailers. The most prominent example is when planograms are provided. In that case, workers must reproduce the design on the planograms in a very specific way.
 Even if terms for executing contracts came from the retailers or their parents companies, Mr. Meunier had to, under his subcontract with Impact Détail Inc., respect them and ensure that the workers respected them. That contractual relationship results in establishing a relationship of subordination regarding the performance of the employment contract between Mr. Meunier and 7547978 Canada Inc. and the workers. However, control over the results of the work to be performed under a contract was exercised by the retailer’s representative onsite.
The other common law tests did not materially affect this conclusion:
 For these reasons, I find that the workers were engaged in insurable employment for Mr. Meunier and 7547978 Canada Inc. for the relevant periods. Maxim Meunier also was engaged in insurable employment for his father and 7547978 Canada Inc. because his conditions of employment were similar to those of other workers.
 Consequently, the appeals are dismissed and it is not necessary to consider the alternative argument raised by the respondent that Mr. Meunier and 7547978 Canada Inc. were acting as employment agencies.