2021 QCCQ 8591, 2021 QCCQ 8591

Déménagement et entreposage (D.G.) MacDonald ltée c. Agence durevenu du Québec 2021 QCCQ 8591 COURT OF QUÉBEC CANADAPROVINCE OF QUÉBECDISTRICT OFMONTREALTOWN OFMONTREALCivil DivisionNo: 500-80-038591-195 DATE: September 14, 2021______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q.______________________________________________________________________ DÉMÉNAGEMENT ET ENTREPOSAGE (D.G.) MACDONALD LTÉE Plaintiffv.

AGENCE DU REVENU DU QUÉBEC Defendant ______________________________________________________________________ CORRECTED* JUDGMENT______________________________________________________________________ [1] The Plaintiff, D.G. MacDonald Moving and Storage Ltd. ("D.G. MacDonald") contests the factual and juridical basis of assessmentsmade by l'Agence du revenu du Québec ("ARQ") for the fiscal years 2014 through 2017 for deductions at source in respect of sevenprofessional truck drivers who provided services to D.G. MacDonald in those years. [2] Revenu Québec assessed D.G.

MacDonald pursuant to the relevant sections of the Taxation Act (I-3) and the Tax Administration Act(A-6.002) as well as specific laws[1] requiring deductions at source for employees. In so doing, Revenu Québec considered that theseven truck drivers were doing work and receiving remuneration as employees, while D.G.

MacDonald maintains that they wereproviding services for a price, pursuant to contracts of services. [3] The outcome of the case depends therefore on the characterisation of the contracts and the nature of the economic relationshipsbetween the parties in regard to the activities of the drivers, for the purposes of the laws of a fiscal and social character on which theassessments were based. The Issues [4] The question is whether D.G.

MacDonald can be assessed or not on amounts derived by calculations under the various laws in play inlight of the nature of the relationships existing between it and the drivers. [5] The nature of the contractual relationship, as falling under employment (art. 2085 CCQ) or contract for services (2098 and 2099CCQ) is the essential question.

The jurisprudence and doctrine, when Quebec law provides for assessments by the ARQ and also whenthe Canadian authorities are assessing situations arising with a Quebec component, go beyond that essential or central civil-law question,applying various criteria or indicia developed in the Anglo-Canadian legal traditions. It will be both useful and necessary to discuss theapproaches used in this broader context.

The "indicia" and the analytical framework that uses them cross over between underlying legalconcepts of civil law nominate contracts and contracts as they exist in the common-law jurisdictions and notions derived originally fromthe law of torts, where vicarious liability in master-servant relationships were involved. [6] The federal fiscal jurisdictions often consider contractual relationships that occur in Quebec such that the civil law governs theunderlying legal situation over which the fiscal laws are superimposed.

In that regard, decisions in cases originating in the federal courtsystem are usually informed by Quebec civil law considerations. See for example 9267-2245 Quebec Inc. v. M.N.R.[2], where Masse DJexplains the approach proposed by Létourneau J of the Federal Court of appeal in Grimard c. Canada[3]: [19] What is the interaction between the Quebec civil law and the Anglo-Canadian common law in the

interpretation of a contract ofemployment or a contract of enterprise concluded in Quebec? In Grimard v. Canada, 2009 FCA 47 , [2009] 4 F.C.R. 592,Justice Létourneau of the Federal Court of Appeal instructs us that Quebec civil law defines the constituent elements needed for acontract of employment or a contract of enterprise to exist. For its part, the common law enumerates factors or criteria which, if present,are used to determine whether such contracts exist. A contract of employment within the meaning of

article 2085 of the C.C.Q. requiresthe presence of direction or control by the employer. A contract of enterprise within the meaning of

article 2099 of the C.C.Q. requires alack of subordination between the contractor and the client in respect of the performance of the contract. Therefore, a contract of

enterprise is characterized by a lack of control over the performance of the work. This control must not be confused with the control over quality and result. The Quebec legislature also added as part of the definition the free choice by the contractor of the means of performing the contract. [20] As stated, under civil law, the element of subordination or control is an essential constituent element of a contract of employment. However, the common law has developed tests for analyzing the relationship between parties.

These common law tests, which Justice Létourneau calls criteria, points of reference or indicia of supervision, are useful in determining the legal character of a contract of employment or a contract of enterprise under the Quebec civil law.

Justice Létourneau concludes as follows at paragraph 43 of his Reasons for Judgement: [43] … 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. [ 7 ] The case is further complicated in that it covers several periods during which changes occurred in the business of D.G.

MacDonald and by virtue of the fact that the situations of the seven drivers were not identical and, for some of them, the situation changed in some respects over time. Burden of proof [ 8 ] As in all reassessment cases, the principal of presumption of validity applies to the factual and legal hypotheses generated by the assessments.

Prima facie evidence to the contrary on a given hypothesis can "demolish" the presumption and open the case to decision on the balance of probabilities, with the ARQ having the burden of proof on factual material where the presumption no longer applies. [ 9 ] The Plaintiff began with a cross examination of the auditor and followed up with testimony with a view to providing both the prima facie evidence and the case in reply to that of the ARQ, assuming the presumptions were demolished. The ARQ participated in the proof of factual material, both in cross-examination of the principal of D.G.

MacDonald and of drivers, and also by direct examination of certain witnesses. The evidentiary process in respect of the third-party witness, i.e. the drivers, was more collaborative than adversary and the Court intervened to clarify the factual material as required. The Audit [ 10 ] The auditor, Ms. Sabrina Ménard-Morin was called as the first witness by the Plaintiff. She was subjected to cross examination, being considered as the representative of the ARQ. She explained that, in her audit, she carried out a preliminary examination of the "Relevé 1" forms and examined the financial statements.

She then obtained from D.G MacDonald's representative, its president, Mr. Jonathan Gilboa, electronic copies of the general ledger centering on the situation of the eight drivers to whom the accounting records showed payments of commissions. Where she found payments to drivers, she did not find corresponding deductions at source. She then sent to the representative a questionnaire used by Revenu Québec in its consideration of the status of the drivers as "salarié ou travailleur autonome" the RR-65.A form. The English version of the form [4] was filled out by Mr.

Gilboa in his representative capacity. [ 11 ] One of the eight drivers, Yvan Monette, had an inscription in the "Registre des entreprises" and she immediately removed his status from the scope of the audit considering him not to be an employee.

She did so regardless of the fact that his situation was much the same as that other drivers included as part of the assessments. [ 12 ] She looked at TP-66 forms whereby drivers claimed certain expenses incurred in long trips, such as food and lodging. [ 13 ] The cross examination revealed that the auditor annotated some of the answers in the questionnaires concerning assignment of territory and customer lists. In one place on the questionnaire, D.G. MacDonald's president had answered that the principal did not assign a territory to the driver and that the latter was not given a customer list.

She marked up the form adding her finding, which was to the opposite effect: "Oui, le chauffeur doit savoir où se rendre" meaning that that the driver had to be told where to drive to, as opposed to having the function of determining that for himself. [ 14 ] In the case of the seven drivers on which the audit proceeded, she considered the following factors as indicative of the drivers being employees rather than a self-employed person: • The drivers were not given a schedule, but they were bound by the

schedule of the client of MacDonald, meaning the person whose goods were being moved. • The drivers were told by the United Van Lines dispatcher where to go to pick up loads. The identity of the client was therefore provided by the company. • The drivers had to keep log books which were provided to the "employer" in order not to exceed the regulatory maximum times on the road. • The drivers could not impose their working conditions, and they all had identical contracts, in the cases where the contracts were provided. [ 15 ] D.G.

MacDonald owned many trucks over the years, and there were no inscriptions in the SAAQ registry that would indicate that any of three drivers whose social insurance numbers were provided (Loney, Cormier and Rochester) owned trucks. She could not check for the other 4 drivers because their social insurance numbers were not provided. [ 16 ] She did not consider the driver charge backs of importance for the purpose of the determination. These were amounts assumed

by United Van Lines and charged back to the driver who was responsible for their payment. [ 17 ] When examined in chief by the ARQ in its case, she mentioned additional elements examined which she considered important for her determination: • the payments were made on a regular basis • the drivers did not have their own vehicles • the contracts and driver questionnaires were identical or as least very similar [ 18 ] In fairness to the auditor, the structure of the standard questionnaire and the dearth of information available to her would not have permitted her to have more than a superficial understanding of the situation. [ 19 ] The similarity of the contracts, the regularity of payments and the use of the audited entity's trucks suggest a certain similarity in the treatment of the seven individuals and apparently provided an indication to the auditor that this common treatment may be a characteristic of an employment relationship. [ 20 ] But, to completely disregard the costs assumed by the drivers, most notably fuel, costs related to loading the trucks, those relating to all food and lodging of the drivers and insurance premiums suggests a lack of understanding of the documents she was examining.

She also took no notice of the differences in the financial considerations appearing in the contracts. This in itself could provide prima facie evidence to destroy the presumptions on some factual hypothesis, notably those relating to the drivers’ exposure to profit and loss, which she simply ignored.

The factual hypothesis of lack of ownership on the part of the drivers of the vehicles used is countered by prima facie evidence of ownership in some cases and of a form of possession consistent with the notion of a lease in other cases that would shift the burden on issues of control and risk in the provision of tools or instruments of production, another important factual and legal issue that often comes up in these types of cases. [ 21 ] The audit did not consider the complexity added by the United Van Lines (“UVL”) involvement in the business, and the arrangements made between the drivers and UVL dispatchers nor did it look into the payment process as it involved the drivers. [ 22 ] This sets the stage for a consideration of the evidence as a whole in light of the nominate contracts involved and the jurisprudential indicia.

First, it would be appropriate to provide a

summary of certain key facts. Factual

summary Business model [ 23 ] D.G. MacDonald has been in business for several decades as a member of an association of businesses operating under the auspices of United Van Lines (“UVL”). As a member, D.G. MacDonald operates its business of household moving across Canada and into the United States. Typically, a member of UVL such as D.G. MacDonald will book a move with a client from the area to another region, involving a long haul transport of the movable property by tractor trailer. UVL will find another member who services the route to the location where the goods are destined.

The truck and driver associated with that other member will be paid a portion of the price set up in the deal as booked by D.G. MacDonald to UVL. The booking member, D.G. MacDonald in our example, gets a cut of the price as does UVL. Workers who help load the truck, as well as the salesperson who made the booking may well be employees of D.G.

MacDonald , and this would affect the remuneration to which it is entitled under the arrangement. [ 24 ] Conversely, when another member of UVL, for example a firm in Halifax, has placed a booking for a move from a residence in its area to a destination in another part of Canada or the USA, the job might be given by UVL to one of the seven drivers associated with D.G. MacDonald , provided that is a destination they service. This is a matter beyond the scope of D.G.

MacDonald who is not involved in the giving out of the work. [ 25 ] When such a driver is given the job, the portion of the customer’s payment that is payable to D.G. MacDonald and to the driver is split between them according to a formula, as is the payment or charge back for variable costs assumed by the driver or D.G. MacDonald as the case may be. [ 26 ] The customer pays the bill to UVL who distributes the cuts to the various service providers. The formula for computing the portions owed to the driver and the member are established by the agreement in place between them, to which UVL is privy. [ 27 ] Mr.

Gilboa perceives the arrangement as being one where UVL pays the driver his cut with a chargeback for costs that are to the driver’s account which have been advanced to him by UVL. An example is fuel costs. These are to the drivers’ account. The driver will often use a credit card provided to him by UVL in order to get the benefit of discounts. He can also use his own funds. But the amount assumed by UVL is charged back to him against his fee.

He is not reimbursed for the costs of fuel: he assumes that cost which is an expense against his earnings. [ 28 ] The driver’s services are not limited to driving the distance: he is also responsible for the cost and the manner of loading and unloading. He will often use workers provided by the member whose customer is shipping the furniture, but he will be charged back for their cost. On the receiving end, UVL might facilitate matters by finding workers for the driver, who ultimately pays for their services. There are situations where he would use his own forces, by hiring them himself directly.

For example, one of the drivers regularly hired a summer student to accompany him across Canada in order to load and unload the trailer. Licencing [ 29 ] In this multi-party arrangement, D.G. MacDonald provides some aspects of the licencing, chiefly the licences required to have a

tractor-trailor on the road for interprovincial haulage. If D.G. MacDonald owns the truck or leases it on a credit lease from a finance company, the SAAQ “immatriculation” will be in his name or in the name of the credit lessor, as the case may be. [ 30 ] In the case where the driver has absolute ownership of the tractor, the SAAQ licence will be in his name. Even so, the licence for haulage will be in the name of D.G. MacDonald .

In the case of haulage involving points in the USA, licencing will be provided as well by UVL, which is an international player. [ 31 ] Most importantly, perhaps, the driver has to be licenced as a driver for the type of vehicles he uses. This is no mere formality because his is a highly-skilled task and, in the case of driving into the USA, there are stringent requirements as to drug testing and the absence of any criminal record. The driver pays for the cost of this testing.

Maintaining the licence is a significant cost to the driver of doing business. [ 32 ] Logbooks are kept by the drivers so that their compliance with regulatory requirements concerning maximum driving times can be demonstrated to the regulatory authorities. D.G. MacDonald has no interest in tracking the drivers’ exact itineraries nor in stipulating the price that the driver accepts for the job: that price is split between them according to the formula; D.G. MacDonald is content with its cut. [ 33 ] Quality control was carried out by UVL, not by D.G. MacDonald .

Ownership and possession of trucks [ 34 ] A driver who wishes to take on more costs and can tolerate more and risks with a view to making a bigger cut of the profits will own his own truck. A driver can “rent” a truck from D.G. MacDonald or even in some cases acquire a truck by making a credit-lease arrangement with assistance from D.G. MacDonald who fronts for him with the credit-lessor, transferring title when the last payment is made. Whether D.G.

MacDonald is outright owner, fronting as credit-lessee or selling the vehicle on a conditional sale to the driver, the driver has possession of the vehicle, keeping it at his residence and making his own arrangements at his own cost for storing it between trips. [ 35 ] When Mr. Gilboa was asked why he would agree to let go the ownership, knowing that the cut he could earn would be less, he explained that the lower earnings for a given job would be offset by a lower risk. Why would a driver accept the extra risks of ownership, such as the risk of expensive repairs and the added insurance and maintenance costs?

Because the driver was looking to make more of the profit, by taking more of the risk and responsibility. [ 36 ] Freedom and control is also an issue in the driver’s choices. Mr. Gilboa spoke of one driver who always owned his own truck and lived, literally, in the truck. This would be a way of cutting down on the cost of lodging, a cost he had to incur without contribution from D.G. MacDonald or UVL. Specific drivers 1. David Asboth [ 37 ] David Asboth began with D.G. MacDonald as a contractor, using one of D.G.

MacDonald trucks for residential moves around North America, including the USA. [ 38 ] At one point he decided to be an owner-operator and purchased a truck from D.G. MacDonald making monthly payments. He left the business when the motor in his truck failed. In the words of Mr. Gilboa, he “blew the motor”. The contract in the audit report, which is not signed but which bears his name, shows that he is receiving the lion’s share of the payments and assuming virtually all of the chargebacks from UVL. The percentages he is not receiving would go to D.G.

MacDonald . [ 39 ] Looking at the chargebacks, it can be seen that he was responsible for not only 100% of the labour, fuel costs, repairs, ace manifests and accounting as well as claims, he was also charged back a monthly truck payment and plates and insurance totalling around $1,500 per month. D.G. MacDonald had virtually no cost or risk on this account. Its cut was for providing the regulatory compliance and the entry into the group. 2. Stephen Loney [ 40 ] Like Mr. Asboth, Stephen Loney drives in and out of the USA, but with a truck provided by D.G. MacDonald .

He lives in Gatineau and spends part of the year in Jamaica where he was during the trial. Mr. Gilboa did not know when he could return, a matter about which Mr. Loney would deal with UVL’s dispatcher. The moving work being more concentrated in the summer, this did not pose a problem. 3. Pierre Larche [ 41 ] Pierre Larche was a driver who previously drove for a company that went bankrupt. He describes himself as a “self-employed truck driver/broker”. [ 42 ] He approached D.G. MacDonald circa 2015 to continue his livelihood. He needed a UVL member for licencing and insurance.

He owns his own truck and trailer. [ 43 ] He needed the DOT number, a licencing feature that UVL could provide and he needed the vehicle registration that D.G. MacDonald can provide. In order to get work from UVL, he had to be with a member, such as D.G. MacDonald . He could drive his truck with his own plates, but he prefers the association with UVL and with a member such as D.G. MacDonald .

[ 44 ] He drives out of Lindsey, Ontario, hauling loads of restaurant equipment and racking across North America. The arrangement was attractive to him because UVL could find him business. Because he drives into the USA he has to pass drug tests regularly, at his own expense. After driving for a few years under D.G. MacDonald he left because the premiums for the insurance provided through D.G. MacDonald were high. The business was no longer profitable. He went to another transport company who had access to less expensive insurance and plated with them. He has recently left that company.

Unlike drivers doing residential moves, he was not responsible for loading. [ 45 ] In the work that he did, he didn’t often refuse what was offered. A typical trip would be Toronto to Chicago. He would not accept to drive into New York, and he would not drive on a trip that was longer than one week. Within these conditions, he would accept the load offered to him and then make his own

schedule for the trip. He had no administrative dealings with D.G. MacDonald , all of his paperwork went through UVL. They would send him the documents electronically. He had a printer in his truck which served as his office. [ 46 ] His understanding of the billing process is that it is through UVL, not D.G. MacDonald , the latter receiving a certain amount per mile. He assumed all costs directly or through chargeback of amounts advanced by UVL, such as on fuel cards he was given to fund his diesel expenses. 4.

David E Parent [ 47 ] David Parent was the individual who not only owned his truck but also lived in it. He hauled special commodities. His involvement in the years audited shows a very limited receipt of money in 2014, a very small amount in 2015. He became ill and D.G. MacDonald lost touch with him after he ceased driving because of his illness. Mr. Gilboa stated that Parent approached him for work. He had worked for the company previously under Mr. Gilboa’s father. He worked in the same way as Mr. Larche, hauling special commodities. 5.

Normand Cormier [ 48 ] The case of Normand Cormier is interesting as an illustration of the roles and responsibilities of a long haul driver in general. It also explains the use of the equipment provided, the truck. [ 49 ] Mr.

Cormier’s narrative is punctuated by the fact that his case was scrutinized on two occasions over the years by the federal authorities who decided that he was not subject to the Canadian employment insurance scheme, that his situation was not “un emploi assurable”. [ 50 ] During the time he worked in the field, he preferred not to own a truck, not wanting to be responsible for monthly payments. [ 51 ] He speaks of a lease, for one dollar, of a truck owned and licenced by D.G. MacDonald that he kept in his possession for the entire time he was associated with D.G. MacDonald .

His possession was absolute and exclusive: no one else used the truck, he kept it at his residence in Quebec City. When he drove and had interruptions, he was responsible for keeping it parked in a secure location. During the time of the year when the work was scarce, he was responsible for its long-term storage. [ 52 ] In performing the services, he was responsible for loading and unloading the furniture and effects into and off the trailer. He took control of the process, directing the workers whose cost he was charged if they were provided to him by UVL in its role as facilitator.

He would otherwise pay his workers directly. He had the practice of hiring directly a student to accompany him on the trips during the summer months, loading and unloading. [ 53 ] The manner in which the trailer would be charged was under his direct control. He would carry as many as 17 households on a given cross Canada trip. He spoke of being very good at “tetris” in fitting all the goods into the trailer in the most efficient way. [ 54 ] He would load in various places in Quebec and Ontario, often Ottawa, heading West.

As he needed help to load, he would call ahead to an agency that was a “filiale” of UVL to line up one or two workers. They would sometimes be with companies like D.G. MacDonald who were members of UVL. [ 55 ] His contracts came from the UVL head office in Mississauga Ontario. For a given fee, a percentage of the bill to be paid for the move by the client, he would accept the job, assuming costs of fuel, hotel, food, parking and of manpower for loading and unloading. Having reached the destination, such as Vancouver, he might be offered a return move on the same basis within a reasonable time.

If the time was too long, he could return home, assuming himself the cost of the airline ticket, or he could stay in the area at his own expense for a few days or even weeks, taking a holiday if he so chose. He gave the example of renting a car and travelling to the bordering areas of the USA between two trips. [ 56 ] There would sometimes be trips offered for parts of the route, with no compensation involved in getting to where the load would be taken on. Mr.

Cormier would accept if it was in his interest to do so. [ 57 ] He said that he would discuss with the dispatcher when the jobs were less attractive, accepting them, perhaps, but requesting more profitable jobs in the future. Mr Cormier spent most of his working life in this role. [ 58 ] The choice of itinerary to get from the point of pickup to the point of delivery was entirely in his discretion.

The pick-up dates were given, but the time to deliver gave ample time to choose when to arrive, so long as it was within the very loose time frame stipulated by the client. [ 59 ] The manner in which to drive, the times of driving and resting, where to stop: all these decisions were up to him. He spoke about drivers who would stop along the way to do some sport fishing. He would often stop in Toronto to visit a family member.

[ 60 ] This is not an example of an employee doing something that is not his work in order to look busy, like a bookshop employee reading a book when there are few customers in the shop. 6. Peter Rochester [ 61 ] The case of Peter Rochester sheds light on the difference between the relationships D.G. MacDonald considers to be employment vs those of independent drivers. [ 62 ] D.G. MacDonald conducts, as well, a business of residential and commercial moving and storage. This local business is carried out differently from its long-haul business.

Of the many trucks on hand, most are adapted to the short-distance moving, are driven by employees on the payroll, equipped with GPS tracking and never leave the Ottawa area. D.G. MacDonald’s storage is in an Ottawa warehouse. The drivers employed, of which there are currently 16, report to the office each morning in Ottawa, Ontario, and are given their assignments by D.G. MacDonald’s supervisors. The business is completely integrated: a sales rep books the job, the work is coordinated and assigned, carried out, invoiced to customers and the payment is received, from A to Z, all by D.G.

MacDonald and its employees. This division of the business is the exact opposite of the long-haul business. It does not use self-employed drivers. [ 63 ] Peter Rochester was, at first, an employee working in this context. Then, as Normand Cormier retired, he took over his role for a few years, which are part of the periods audited. Then, he gave that up and became an employee again, driving locally. [ 64 ] Mr. Gilboa summed it up in words to the effect that to earn more, you have to take on a financial responsibility. When Mr. Rochester works in the local-moving division, he makes no such decisions.

As an employee, he reports each morning to the office and does the work assigned to him. 7. Gilles Lamarche [ 65 ] Gilles Lamarche was an international driver like Mr. Asboth but he was considered to be renting his truck, not owning it. This is reflected in the driver chargebacks. He changed the type of work he was willing to do after breaking his leg. Because of the injury he was not working for one year. When he came back to the scene he decided to work only within Canada. Work was available because another driver, Yvan Monette withdrew and he was able to take on that workload.

Yvan Monette was treated in this audit as self-employed but the only difference known about him as opposed to the other non-owners it that he had a registration for his business. Would Revenu Quebec have stopped the audit completely if the other seven drivers had registered their businesses?

Analysis [ 66 ] The case was argued on the notion of preposition, as opposed to independence, derived from the dichotomy between two civil law nominate contracts, that of employment and the contract for services. [ 67 ] The relevant articles of the Code show a clear distinction: Art. 2085 A contract of employment is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person , the employer.

Le contrat de travail est celui par lequel une personne, le salarié, s’oblige, pour un temps limité et moyennant rémunération, à effectuer un travail sous la direction ou le contrôle d’une autre personne, l’employeur. Art. 2098 A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him.

Le contrat d’entreprise ou de service est celui par lequel une personne, selon le cas l’entrepreneur ou le prestataire de services, s’engage envers une autre personne, le client, à réaliser un ouvrage matériel ou intellectuel ou à fournir un service moyennant un prix que le client s’oblige à lui payer. Art. 2099 The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client.

L’entrepreneur ou le prestataire de services a le libre choix des moyens d’exécution du contrat et il n’existe entre lui et le client aucun lien de subordination quant à son exécution. [ 68 ] In the case of all seven drivers, there was a degree of organisational control in place because of the nature of the enterprise. Moving a customer’s household furniture and effects from one place to another in North America involves coordination of a number of economic and contractual events. The contract is essentially one of carriage, evidenced by a bill of lading. This is governed, when

Quebec law applies, by the Civil Code : Art. 2030 A contract of carriage is a contract by which one person, the carrier, undertakes principally to carry a person or property from one place to another, in return for a price which another person, the passenger or the shipper or receiver of the property, undertakes to pay at the agreed time.

Le contrat de transport est celui par lequel une personne, le transporteur, s’oblige principalement à effectuer le déplacement d’une personne ou d’un bien, moyennant un prix qu’une autre personne, le passager, l’expéditeur ou le destinataire du bien, s’engage à lui payer, au temps convenu. Art. 2041 A bill of lading is a writing which evidences a contract for the carriage of property. A bill of lading states, in particular, the names of the shipper, receiver and carrier and, where applicable, of the person who is to pay the freight and carriage charges.

It also states the place and date of receipt of the property by the carrier into his charge, the points of origin and destination, the freight as well as the nature, quantity, volume or weight and apparent condition of the property and any dangerous properties it may have. Le connaissement est l’écrit qui constate le contrat de transport de biens. Il mentionne, entre autres, les noms de l’expéditeur, du destinataire, du transporteur et, s’il y a lieu, de celui qui doit payer le fret et les frais de transport.

Il mentionne également les lieu et date de la prise en charge du bien, les points de départ et de destination, le fret, ainsi que la nature, la quantité, le volume ou le poids et l’état apparent du bien et, s’il y a lieu, son caractère dangereux. Art. 2042 The bill of lading is issued in several copies; the issuing carrier keeps a copy and gives one to the shipper; another copy accompanies the property to its destination. In the absence of any evidence to the contrary, the bill of lading is proof of the receipt of the property by the carrier into his charge and of its nature, quantity and apparent condition.

Le connaissement est établi en plusieurs exemplaires; le transporteur qui l’émet en conserve un, il en remet un à l’expéditeur et un autre accompagne le bien jusqu’à sa destination. Il fait foi, jusqu’à preuve du contraire, de la prise en charge, de la nature et de la quantité, ainsi que de l’état apparent du bien. Art. 2043 A bill of lading is not negotiable, unless otherwise provided by law or by the contract. Negotiation of a negotiable bill of lading is effected by endorsement and delivery, or by mere delivery if the bill is made to bearer.

Le connaissement n’est pas négociable, à moins que la loi ou le contrat ne prévoie le contraire. Lorsqu’il est négociable, la négociation a lieu soit par endossement et délivrance, soit par la seule délivrance, s’il est au porteur. Art. 2044 The carrier is bound to deliver the property to the receiver or to the holder of the bill of lading. The holder of a bill of lading is bound to hand it over to the carrier when he demands delivery of the property. Le transporteur est tenu de délivrer le bien transporté au destinataire ou au détenteur du connaissement.

Le détenteur d’un connaissement est tenu de le remettre au transporteur lorsqu’il exige la délivrance du bien transporté. Art. 2045 Subject to the rights of the shipper, the receiver upon accepting the property or the contract acquires the rights and assumes the obligations arising out of the contract.

Sous réserve des droits de l’expéditeur, le destinataire, par son acceptation du bien ou du contrat, acquiert les droits et assume les obligations résultant du contrat. [ 69 ] The client is the shipper under the bill of lading. [ 70 ] The shipper and the receiver, in the case of a domestic or commercial move, would be the same person, the owner of the property, while in the carriage of commercial goods, there may be a seller who is the shipper and a buyer who is the receiver.

[ 71 ] In the case of moving, there is a mixed contract, because the packing, loading and unloading are additional services and there is insurance. Because the moves are interprovincial and transnational, there may be a local moving company involved and another moving company licenced as the transport company under regulatory law. The driver may provide the vehicle to the transport company. At the very least the driver provides his licence, his expertise and effort including his planning of the precise route and timing and of the loading and unloading.

He also provides much of the means of production, notably by assuming all fuel payments, all of his own food and lodging during the trip and the cost of manpower. He, as opposed to the carrier, is responsible for claims of damage to the goods during manipulation on and off the truck, which is understandable, since he decides how the goods will be loaded and assumes that cost. [ 72 ] In many cases he also provides for the truck itself, though its legality on the road depends upon licences held by D.G. MacDonald and/or UVL.

No subordination exists with respect to the manner in which he carries out the loading and driving, though he is governed by usage and practice. He is obliged to carry out the work as defined in the contract and is not supervised in that respect, though he is subject to quality control, by UVL, not by D.G. MacDonald . [ 73 ] Direction and control in the sense of

article 2085 C.c.Q. , is, in the examples seen in the present case, not at all with D.G. MacDonald who passively provides the licencing and in some cases the truck, but never gets involved in the direction of the work itself. Mr. Gilboa can monitor what is taking place in terms of billing, because he has a computer access to the accounting of UVL in respect of his participation, but he has no control over how the driving, loading and unloading will be carried out. [ 74 ] The idea of employment simply does not fit the contractual reality and the business model that are in play here.

There is a complex web of contractual relationships and economic interdependence between a host of players, of which the driver is the most important and the most autonomous. Coordination is provided by UVL, a business distinct from D.G. MacDonald . The driver is autonomous not as to the entire coordination of the project from sale to completion, but, insofar as his services are planned and delivered, he is autonomous, responsible and at risk.

The contract he agrees to for a given trip determines what he must do, but he is responsible for how he will do it and financially at risk to a great extent, for the profitability of the venture. [ 75 ] The situation is very different from cases where drivers were held to be employees. An example is that of the drivers delivering merchandise to a food chain (Metro) for a subcontracting transport company in 9267-2245 Quebec Inc. v.

M.N.R. [5] [ 76 ] It is also necessary to discuss the Oceanica case [6] . [ 77 ] This was a case where the work of nurses attending to patients in hospitals and other establishments, clearly employment, was carried out under an arrangement whereby an agency recruited, assigned, and paid nurses who worked in the establishment according to its internal organisation. These nurses were occupying a function alongside other nurses who were employees of the establishments.

For reasons that were not relevant to the case, the establishments had, from a certain point in time, fractioned the employer’s function delegating the recruitment, payment and assignment to the agency. The case is very interesting for an understanding of the creation of a tripartite contractual situation where traditionally there had been a bilateral one.

In first instance, my colleague found that the fracturing of the relationship that had been one of employer-employee into establishment-nurse-agency was a type of mandate where the employer, for the purpose of paying the deductions at source, is a mandatary of the employer-establishment, the latter maintaining the traditional control of the work itself. [ 78 ] The issue of the identity of the payer of the salary of the employee is of importance in Oceanica because of the tripartite nature of the employment relationships. The fiscal laws tie the definition of the employee to the identity of the party paying.

The “disharmony” was resolved by considering that the agency was the mandatory of the employer. Thus, for the purpose of the laws that focus on the identity of the payer, the mandatory could be considered the employer. [ 79 ] In the present case there was a certain lack of unanimity as to who paid the drivers. According to Mr. Gilboa, the payments to D.G. MacDonald and to the drivers, came directly from UVL. D.G. MacDonald’s accounting books show a payment of a gross amount to D.G. MacDonald with a deduction for the commission paid to the driver.

The bookkeeper currently providing services to the company confirmed that amounts were normally paid to the drivers by UVL but entered in the books as expenses, or costs of goods sold set off against the gross amounts paid by UVL to D.G. MacDonald and the drivers. [ 80 ] In his testimony, the bookkeeper was not able to address the question of the underlying contract, i.e. whether the accounting convention followed in D.G. MacDonald’s ledgers reflected payment made by UVL on behalf of D.G. MacDonald or payment recorded as incurred by D.G. MacDonald but in fact payable by UVL. [ 81 ] Mr.

Gilboa’s understanding, from the business rather than the accounting angle, was a distribution of an amount payable by the homeowner/shipper to be divided up among the players, with cuts going to UVL, to the driver and to his company. Mr Gilboa could not comment on the accounting processes, having no education or training to do with that discipline. He considered that he was acting like a bank, with respect to Mr. Cormier, whose payments, which accumulated during the busy season, were held back and paid out in intervals according to a particular arrangement.

He also mentioned administering a certain amount as a security deposit against claims that could be made for which the driver is responsible. This suggest that the drivers’ obligations on a claim would be secured through this withholding of funds, and it would also suggest that the driver owed the amount to UVL’s client, not to D.G. MacDonald . [ 82 ] In the Court’s assessment of the evidence, the financial arrangements and accounting practices do not establish that the driver is paid by D.G. MacDonald in the way a salary is paid to an employee.

Rather, it is consistent with the idea that the driver is paid a share of the proceeds of the moving contract based on the value of his input of time, effort and costs relative to the entire proceeds, under an arrangement governed by his contract for services. There is no employee, therefore no need to determine who is the employer/payer in the six-party arrangement. [ 83 ] Of course, in Oceanica , these nurses were employees without any financial risk, not contractors.

The issue was simply whether the agency became the employer when the arrangements were changed to include the agency in the relationship. [ 84 ] The case here is quite different in that the UVL arrangement was always set up as a joint venture in the same way: there was never in the history of D.G. MacDonald’s membership in UVL, a time when these experienced long-haul drivers were treated or thought

of as employees. Many of the relationships seem to be part of a customary way of doing business and the roles and responsibilities of the participants have existed for many decades. [ 85 ] It is not a tripartite situation evolving from a bilateral one, as in the Oceanica case. Rather, it is a longstanding complex amalgam of various contractual relationships and contracts.

There are six distinct types of contracting parties: client/shipper, booking mover, licenced carrier, licence holder for the trailer (into the USA), licenced driver, and workmen loading and unloading. [ 86 ] The complexity of this goes beyond what was the subject matter of the Oceanica fact pattern and the facts of the present case do not suggest a pre-existing type of employment relationship being modified from a bilateral to a tripartite contract. [ 87 ] It is possible to imagine a situation where the long-haul driver would be an employee: for the purposes of the hypothesis one could imagine a driver who doesn’t own or possess the truck, who has regular hours and pay as well as benefits, whose testing is carried out at the employer’s expense, whose routes and schedules are dictated to him, whose itinerary and speed objectives are determined for him and who is constantly subject to being monitored by global positioning systems etc.

This would be the employee/driver model.

But that hypothetical situation bears no resemblance to the present case. [ 88 ] In our case, the degree of risk and freedom of choosing the means of arriving at the result is too heavily weighted toward the driver for him not to be considered a contractor while the licenced carrier is disconnected and almost apathetic to the means employed by the driver, interested chiefly in his cut of the proceeds. [ 89 ] From the point of view of Quebec nominate contracts, this is not employment, because of the lack of the essential direction and control on the part of the giver of the work and the absence of a relationship of subordination on the part of the driver in respect of his performance. [ 90 ] We turn now to the other indicia developed by the jurisprudence.

The parties argued this on four axes: contract intention, both, subjective and objective, ownership of tools, expectation of profit and risk of loss and, finally, the illusive concept of integration. 1. Contract intention, subjective and objective [ 91 ] This is the principle of the parties’ choice or definition of the nature of the contract, as opposed to the actual factual situation.

Subjectively, the parties have clearly chosen independent contractor status for the driver: I STATUS OF CONTRACTOR: It is an essential condition of this Agreement that the status of the Contractor in relation to the Company during the term hereof, or any renewal, is and shall be that of a self-employed person and independent contractor, and that the Contractor and his employees, if any, are not and shall not be or be deemed to be employees of the Company in any respect or for any purpose. [7] [ 92 ] Other sections of the typical contract dealing with specific obligations point clearly to self-employment and the contract for services of the Civil Code of Quebec .

To summarize a few gathered from various parts of the agreement: - The Contractor assumes costs incidental to the operation of the vehicular equipment such as fuel, turnpike and bridge tolls, the driver’s licence and any licenses for the operation of the vehicle not paid for by the Company; - The services include packing, crating and uncrating, and the Contractor is fully responsible for the payment of persons to whom these tasks are delegated; - The Company has no right, power or obligation in regard to hiring, firing, training, etc. of the Contractor’s employees and the Contractor is fully responsible for all such matters; - The Contractor becomes responsible to the extent of 48% for all claims incurred by the Company to Shippers or van lines for damage to goods hauled, up to a certain minimum, per shipment, but with 100% responsibility if the Contrator or his “help” are negligent. [ 93 ] The contract contains a certain number of boiler-plate provisions in keeping with a business deal between independent parties, and certain specifics about issues that we will discuss under various indicia below. [ 94 ] The auditor inferred, from the similar drafting of the two contracts she was provided with, that the relationship was that of employment.

In doing so she was not mindful of the differences in the drivers’ arrangements. Mr. Gilboa stated that the contract form used was a standard document used in the industry. The part of the document where there are differences is in the schedules where the percentages of payments to Contractors and Driver charge backs are set out. These differ as between David Asboth, (pages 8-15 of D-4) who was considered to be the owner of his truck and the second contract (pages 16-29 of D-4) where the driver is not owner of the truck he drives. It appears that Mr.

Asboth is being charged back a monthly fee, perhaps the financing amounts for his ownership of the Truck, whereas the other diver’s chargebacks are limited to the standard chargebacks of labour, Fuel from Shell Card, Ace manifests, Accounting and claims. [ 95 ] The similarity or difference as between the contract forms used with the drivers is not, in the Court’s view indicative of the type of contract. A business can have one typical arrangement with all its employees or it can agree to individualised working conditions.

It can also have relationships governed by the contract for services, that are all the same or different. The standardization of its business is not really relevant. [ 96 ] Similarly, the fact that a service provider has several sources of work is not necessarily indicative of a contract for services: she

may two or more part-time jobs that are all different but all of which require her to work under the subordination of the various employers. She could also have three clients for whom the exact same contract is agreed to and have no relationship of preposition with any of them. [ 97 ] What is more important in the auditor’s perusal of the contracts is that she considered the driver charge backs not to be significant in her decision. This is clearly wrong.

These charge backs provide a clear indication that the driver is autonomously accepting the financial burden of variable costs and risks which could have a direct impact on the profitability of his venture. 2. Ownership of tools [ 98 ] The essential “tool” is the driver’s licences without which the truck cannot move. The ownership of the trucks, which is more a means of production than a tool, varies from situation to situation. Always, the drivers established a control and exclusivity with respect to the truck analogous to possession and/or ownership. 3.

Expectation of profit and risk of loss [ 99 ] This is clearly a question of degree: the more risk the diver assumed, the greater could be his profit or his loss. The variations on the theme of risk show individual choice and differences in the personal and financial situations of the drivers. In all cases a significant risk was taken in the form of liability for damage to the goods loaded and unloaded by workers supervised by the drivers or damaged during transport.

The driver answered to himself alone for the profitability of the haul from the point of view of efficient use of fuel and time, based on the price and timeframe he accepted. 4. Integration [ 100 ] A good place to begin a reading of the jurisprudential saga of the integration test is in the middle of the story, the opinion of MacGuigan J. writing for the Federal Court of Canada-Appeal Division in Wiebe [8] .

This opinion provides a retrospective of the issue and points toward a more modern approach gradually settling into the law. [ 101 ] It should be recalled that the facts of the case, that of door installers who owned their own trucks and tools and worked, with a certain degree of independence, chance for profit and risk of loss, for a door installation and repair business.

What tipped the scales in favour of a finding of employment in first instance was a certain application of the Integration Test [ 102 ] The Tax Court judge looked to English jurisprudence where Lord Denning had expressed the test in terms of the essential character of the work for the employer’s business. In paraphrasing that test and applying it to the facts, the trial judge stated: […] All the work performed by the installers formed an integral part of the Appellant’s business.

Without the installers, the Appellant would be out of business. [ 103 ] MacGuigan J. refers to a number of doctrinal and jurisprudential sources, including Lord Wright’s so-called overarching test involving “examining the whole of the various elements which constitute the relationship between the parties” [9] and traces the development of Lord Denning’s organization test, (termed by the Tax Court the “integration test”) in the Supreme Court of Canada [10] and in the Ontario Court of Appeal [11] . [ 104 ] In a determinative paragraph of the judgement, MacGuigan J. writes: 14.

Lord Denning’s test may be more difficule to apply, as witness the way in which it has been misused as a magic formula by the Tax Court here and in several other cases cited by the respondent, 2 in all of which the effect has been to dictate the answer through the very form of the question, by showing that without the work of the “employees” the “employer” would be out of business (“Without he installer, the appellant would be out of business”). As thus applied, this can never be a fait test, because in factual relationship of a mutual dependency it must always result in an affirmative answer.

If the businesses of both parties are to be structured as to operate through each other, they could not survive independently without being restructured. But that is a consequence of their surface arrangement and not necessarily expressive of their intrinsic relationship. _______________ 2 See umpires’ decisions in appeals from M.N.R.’s decisions in Re/Max Real Estate Calgary South v. M.N.R. , N.R. 1069; Sairoglou v. M.N.R. , 1085; Terra Engr. Laboratories Ltd v. M.N.R. , N.R. 858; Barnard v. T.M. Energy House Ltd. , [1982] 4 W.W.R. 619 (B.C. Co.

Ct.) [ 105 ] Finding that the Tax Court had erred in the application of this test to the case of the door installers, the Federal Court-Appeal Division allowed the

section 28 application and returned the file to the Tax Court judge for a new determination consistent with its reasons. [ 106 ] The auditor in the present case also expressed the notion of integration in a somewhat simplistic manner when she took as an essential consideration the fact that the company needed the service of the driver to satisfy its obligations toward its customers. The

interpretation bulletin imposed on her by Revenu Québec mentions an integration concept voiced in terms of work done as an integral part of the employer’s business as opposed to accessory work: En vertu d’un contrat de travail, une personne est

partie d’une entreprise et son travail fait

partie intégrante de l’entreprise. Par contre, en vertu d’un contrat d’entreprise, son travail, bien qu’il soit fait pour l’entreprise, n’y est pas intégré mais seulement accessoire. [12]

[ 107 ] This phrase tracks almost word for word Lord Denning’s test (Quoted in Wiebe), which has been greatly revised and transformed in the jurisprudence: One feature which seems to run through all the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. [ 108 ] It is a somewhat outdated test now having been overtaken by other more complex and comprehensive considerations. [ 109 ] In fairness to the drafters of the non-binding

interpretation bulletin, however, it should be said that the bulletin does present a number of elements coming from the modern jurisprudence, but it is decidedly skewed in favour of a finding of employment in respect of a general appreciation of the impact of subordination: […] le Ministère considère que la présence d’une telle subordination, même minimale, suggère l’existence d’un contrat de travail. [ 110 ] One phrase in the IT is clearly favourable to D.G. MacDonald concerning the obligation of result.

Résultat Spécifique Le critère du résultat spécifique vise à déterminer si les services du travailleur sont retenus pour effectuer un travail précis ou au contraire si le travailleur s’est mis personnellement au service d’un employeur pour une certaine période donnée.

Le fait de s’engager à rendre un résultat précis indique la présence d’une entreprise. [ 111 ] In the facts of our case, the result: to load the goods, transport them and unload them, is an obligation of result: because of the nature of the contract of transport, and because of the mission accepted by the driver when he accepts a move that is proposed to him by the UVL dispatcher. If he does not deliver the goods, he will not be paid. It is not an obligation of means.

This is the opposite of what would usually prevail in employment where the failure to bring about a result might give rise to discipline, if the employee has failed to take the means as directed by the employer, but would not result in a withholding of pay if the employee has come to work and spent his day in the performance of his duties. [ 112 ] The obligation of result has a bearing as well in the notion of risk, referred to above. [ 113 ] The case of D & J Driveway [13] provides an extreme example of the application of the notion of control in the post-Weibe jurisprudence.

In that case the appellant engaged drivers to deliver trucks owned by clients who had entrusted them to the appellant for the installation of fiberglass boxes.

When the work was finished and the vehicle was to be delivered, these drivers were called upon to deliver them to their owners in completion of the contractual obligation. [ 114 ] The task was very clear, to deliver the truck to the specified location and the appellant made sure this was done, but the distinction was made between controlling the result and controlling the worker: [12] Additionally, the duties assumed by the drivers were quite simple and specific: delivering the truck to the address indicated. No control was exercised over the way in which they carried out their duties.

"The distinguishing feature of a contract of service" (now a contract of employment), Pratte J. wrote in Gallant v. M.N.R. , [1989] F.C.J.

No. 330 , "is not the control actually exercised by the employer over his employee but the power the employer has to control the way the employee performs his duties." In the case at bar, this control over the actual performance of the duties did not exist. [13] In short, as in Sauvageau Pontiac Buick GMC Ltée, supra , the Court is satisfied that there was not a sufficient relationship of subordination between the applicant and the drivers for it to conclude that a contract of employment existed.

It is important to guard against a reflex of thinking solely of a business corporation or an organized commercial undertaking when one is dealing with work which is done or services which are provided other than under a contract of employment. The examples of electrical, plumbing or building contractors immediately spring to mind in such a context. However, there is a whole range of services which are offered under a contract for services. In fact,

article 2098 of the Civil Code of Quebec was very careful to place on an equal footing a "contract of enterprise" and a "contract for services" and to describe as a "contractor" the person who performs a contract of enterprise and as a "provider of services" the person who carries out a contract for services. In the case of either of these contracts, the contractor and the provider of services give an undertaking to another person, the customer, to perform work or provide a service for a price which the customer undertakes to pay them.

Article 2099 C.C.Q. states that the contractor, like the provider of services, is free to choose the means of performing the contract and no relationship of subordination exists in respect of such performance. [ 115 ] The facts of the case are not a perfect analogy with the present file, but there is a parallel that can be made: Mr. Gilboa had no supervisory authority over the driver in his essential tasks, nor did he monitor anything other than the result. [ 116 ] There was no “hierarchical dependency” in the sense of the Dicom Express case [14] .

UVL facilitated the driver in the logistics of the moves, but in that respect, it was acting in its own interest in enabling the driver to deliver these results for the benefit of all the clients of the multiple moving companies within the UVL group across the driver’s trajectory. Ultimately the economic purpose was to bring about a result that would permit all participants in the venture to be paid, but in this regard, UVL was carrying out its own function in its own business not in that of D.G. MacDonald nor in the business of the driver. The driver sought from D.G.

MacDonald no advice and was given none as to which contracts to accept and how to carry them out. The result was important and all the players provided some of the means of production, but each did so independently of the others in a coordinated effort. D.G. MacDonald had the least involvement, and virtually no control over the work of the driver and the logistics carried out by UVL, just as it had nothing to do with the booking of the loads. [ 117 ] The interdependency of the various parties for the overall production, was not indicative of the business of the driver being part of the business of D.G.

MacDonald, it was indicative of a harmonious collaboration among equals. Among these equals, it could be said that the driver was the most important, and the most autonomous.

[ 118 ] In the Court’s view, this is not a case where the integration test is met. [ 119 ] Therefore, the Court is of the view that the prima facie evidence demolishes the presumption of validity of the assessments and the evidence on the issue joined, regardless of which party has the burden of proof, overwhelmingly establishes a finding that the drivers are not employees, but rather that their legal relationship is that of providers of services under contracts for services. [ 120 ] The assessments must therefore be annulled.

Conclusions [ 121 ] The parties suggested that, rather than issuing monetary conclusions, it would be appropriate for the Court, should it decide in favour of D.G.

MacDonald in whole or in part for a given year or years, to annul the assessments in the years affected and refer the matter back to the ARQ for new assessments excluding certain or all of the drivers for the purposes of the specific deductions at source that were imposed here. [ 122 ] In the Court’s analysis, all the new assessments from 2014 through 2016 which pertain to these drivers should simply be annulled or, to use the technical term, vacated, [15] because the amounts assessed in all the taxation years affected by the new notices of assessment in relation to the seven individual drivers should have been excluded. [ 123 ] In regard to 2017, however, the assessment covers as well a number of other individuals who were indeed employees of a business known as “Bar Haven” when it was continued in an amalgamation with D.G.

MacDonald in 2017. Of the total assessment of $ 163,105.11, the amount of $ 113,086.06 consists of deductions at source in respect of these acquired employees. D.G. MacDonald does not contest the assessment in respect of them. The amount actually in issue in the case for that year is $ 50,119.05, an amount which includes d.a.s. for the seven drivers referred to in the present judgement and the accessory penalties and interest arising therefrom. The file will have to be sent back for a corrected assessment. The third conclusion reflects this detail.

WHEREFORE, THE COURT: ALLOWS the Plaintiff’s contestation of the assessments referred to in the present matter for 2014 through 2017; VACATES , purely and simply, notices of assessment numbers 5508861, 5508871, and 5508881 pertaining to 2014, 2015 and 2016 respectively; VACATES notice of assessment number 5508891 pertaining to 2017 and REFERS the file back to the Minister of Revenue for a reassessment for 2017 that shall exclude the amount of $ 50,019.05, inclusive of penalties and interest, that had been assessed in respect of the seven drivers referred to in the present judgment; THE WHOLE with judicial costs in favour of the Plaintiff. ______________________ David L.

Cameron, J.C.Q. Me Frédérique Duchesne BCF S.E.N.C.R.L. Attorney for the Plaintiff Me Daniel Stock Larivière Meunier Attorney for the Defendant Dates of hearing: February 24 th , 25 th , 26 th 2021 [15] the expression used in the English version of

article 93.1.21. of the Tax Administration Act

chapter A-6.002 is “ vacate ”)