TITLE:

Employee and Self-employed Worker

AUTHOR(S): 

Auger, François

EDITOR:

Department of Justice Canada

This research report inspired an article that was published in:

• Auger, François, “Employee and Self-employed Worker”. The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law, Montreal, Association de planification fiscale et financière, 2002, pp. 3 :1-82.

PAGE(S):

SERIE(S):

The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law  - Recueil d'études en fiscalité

SUBJECT(S):

Canadian Bijuralism
Tax Law

ISBN:

Abstract:

The abstract is an exact copy taken from The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law.

The coming into force of the Civil Code of Québec transformed private law in Quebec.  The changes brought about by Quebec’s reforms altered the situation regarding the coexistence of the two systems of law.  The application of federal statutes, tax laws in particular, which are related to provincial private law, changed, as rules of civil law were abolished, amended, reformulated or added.

What about the distinction between “employee” and “self-employed worker”, a distinction that in tax law is fundamental in establishing a worker’s source of income? The author endeavours to analyse the current state of both tax law and civil law on this point and then targets problems encountered in applying the established principles.  The aim of this analysis is to shed light on the impact of the new Civil Code of Québec on application of the Income Tax Act in determining a worker’s status and to identify any changes that need to be made in the rules of procedure applicable in tax matters.

TABLE OF CONTENTS:

Part I

ANALYSE THE CONCEPTS OF “EMPLOYEE” AND “SELF-EMPLOYED WORKER”.  HOW MUCH OF A DISTINCTION IS THERE BETWEEN THESE CONCEPTS IN TAX LAW, AND IN WHICH STATUTES ARE THEY MENTIONED?

INTRODUCTION

1. DEFINITIONS

1.1   TESTS ESTABLISHED BY CASE LAW

1.1.1  Common law tests

1.1.2  Changes in the concept in tax law

1.1.3  Wiebe Door Services Ltd.

1.1.4   Decisions after Wiebe Door Services Ltd.

1.2   FEDERAL ADMINISTRATIVE POSITION

1.3   TESTS IN QUEBEC CIVIL LAW

1.3.1 Tests under the Civil Code of Lower Canada

1.3.2 Tests under the Civil Code of Quebec

1.3.3  Quebec’s administrative position

1.4  IMPORTANCE OF DISTINGUISHING BETWEEN THE CONCEPTS

        1.4.1 Importance of distinguishing between the concepts in tax law

        1.4.2  Importance of distinguishing between the concepts in civil law

1.5 TERMINOLOGICAL DIFFERENCES

Part II

HAVE THE COURTS RECOGNIZED THE SPECIFIC NATURE OF QUEBEC CIVIL LAW IN RESPECT OF THESE CONCEPTS, PARTICULAR SINCE THE NEW CIVIL CODE OF QUEBEC WAS INTRODUCED IN 1994?

2.  RECOGNITION BY THE COURTS OF THE SPECIFIC NATURE OF QUEBEC CIVIL LAW IN RESPECT OF THE CONCEPTS OF EMPLOYEE AND SELF-EMPLOYED WORKER

2.1 COURTS APPLYING FEDERAL TAX LAWS

2.2  COURTS APPLYING QUEBEC TAX LAWS

PART III

WHERE THERE ARE DIFFERENCES BETWEEN THE PRINCIPLES APPLICABLE IN TAX LAW AND THE PRINCIPLES OF THE CIVIL CODE OF QUÉBEC, ANALYSE THE IMPACT AND TAX IMPLICATIONS OF THE SITUATION.  EVALUATE THE PRACTICAL SIDE OF THE ISSUE BY REFERRING TO THE LEGISLATION, SUCH AS THE INCOME TAX ACT, THE EMPLOYMENT INSURANCE ACT, the EXCISE TAX ACT AND THE CANADA PENSION PLAN

3. DIFFERENCES BETWEEN THE PRINCIPLES APPLICABLE IN TAX LAW AND THOSE APPLICABLE IN CIVIL LAW

3.1. ANALYSIS OF THE IMPACT AND TAX IMPLICATIONS OF THIS SITUATION

3.2  EVALUATION OF PRACTICAL INTEREST IN THE ISSUE WITH REFERENCE TO THE     LEGISLATION

           3.2.1 Income Tax Act

           3.2.2 Employment Insurance Act

           3.2.3 Excise Tax Act

           3.2.4 Canada Pension Plan

3.3   OUR PROPOSALS

BIBLIOGRAPHY