The legislation is meant to benefit persons engaged in "insurable employment" which is, generally speaking, employment under a contract of service. A contract of service must be distinguished from a contract for service. Either form of employment can create "real legal ties" between the parties, but only employment under a contract of service qualifies as insurable employment. It is not enough to find that there is a genuine contract, or real legal ties, between the parties. In order to satisfy the requirement of the legislation, there must be a genuine contract of service, which means that there is a relationship of subordination between the parties.
Martin Service Station Ltd. v. M.N.R., [1977] 2 S.C.R. 996 (S.C.C.)
Bernier v. C.E.I.C., [1979] 2 F.C. 115 (F.C.T.D.) T-371-79
Canada (A.G.) v. Leblanc, May 23, 1985, F.C.J. No. 421 (F.C.A.) A-208-84
Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.) A-531-85
Fleury v. M.N.R. [1986], F.C.J. No. 1008 (F.C.A.)
Sprague v. M.N.R., March 14, 1989, F.C.J. No. 268 (F.C.A.) A-521-88
Charbonneau v. M.N.R., September 20, 1996, F.C.J. No. 1337 (F.C.A.) A-831-95
Jencan Ltd. v. M.N.R., June 24, 1997 (F.C.A.) A-599-96
The test to be used in making the determination of whether a contract of service qualifies as insurable employment is a "four-in-one" test which requires consideration of four factors:
Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.) A-531-85
Canada (A.G.) v. Rouselle [1990], F.C.J. No. 990 (F.C.A.) A-1243-88
Canada (A.G.) v. Vaillancourt, May 14, 1992, F.C.J. No. 447 (F.C.A.) A-639-91
There may be situations where one or more of these factors is not applicable. Accordingly, the overall evidence must be considered taking into account those factors which may be applicable and giving weight to all the relevant evidence. An employer/employee relationship does not exist merely because the parties choose to describe it that way. Its existence depends upon the surrounding circumstances when weighed in light of the test set out by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.) A-531-85.
Moose Jaw Kinsmen Flying Fins Inc. v. M.N.R. [1988], F.C.J. No. 21 (F.C.A) A-531-87
Standing v. M.N.R., September 29, 1992, F.C.J. No. 890 (F.C.A.) A-857-90
In making a determination as to whether the parties have established an employer-employee relationship, the total relationship between the parties must be considered. What matters in determining insurability within the meaning of the legislation is the creation of a link of subordination between the employer and employee.
Canada v. Société d'exploitation des ressources de la Vallée Inc. [1984], 61 C.F. 131 (F.C.A) A-98-92
Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.) A-531-85
Coast Range Silvicultural Services Ltd. v. M.N.R., October 8, 1987, F.C.J. No. 912 (F.C.A.) A-302-86
Canada (A.G.) v. Hennick [1995], F.C.J. No. 294 (F.C.A.) A-328-94
A contract of service can be created as long as the employer is capable of determining the working hours, defining the services to be provided, and deciding what work is to be done from day to day. The characteristic feature of a contract of service is not the control that the employer in fact exercises over the employee, but rather the power to control the manner in which the employee carries out his work.
Gallant v. M.N.R., May 22, 1986, F.C.J. No. 330 (F.C.A.) A-1421-84
Caron v. M.N.R. [1987], F.C.J. No. 270 (F.C.A.) A-450-86
The existence of an authentic contract of service between employer and employee must be proven. If the contract is real, the employment is insurable. If it is artificial, the employment is not insurable.
Castonguay v. M.N.R., October 23, 1986, F.C.J. No. 676 A-804-85
Klein v. M.N.R., October 23, 1986, F.C.J. No. 675 (F.C.A.) A-701-85
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