Citation: 2010TCC385
Date: 20100719
Docket: 2009-533(EI)
BETWEEN:
BEATA RICHTER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Webb, J.
[1]
The
issue in this appeal is whether the Appellant was engaged in insurable employment for the purposes of the Employment
Insurance Act (the “EI Act”) during the
periods from September 9, 2001 to September 28, 2001 and from July 2, 2002 to
October 4, 2002 while she was employed by the Government of Canada and during
the period from November 21, 2001 to June 22, 2002 while she was employed by
David Weiner.
[2]
The
Appellant emigrated from Poland to Canada in January 1993. She became a Canadian citizen in April
1996. She married her boyfriend who had previously immigrated to Canada from Poland. The Appellant worked
in Alberta. In 1996 she and her
husband separated (they were divorced in 1997) and she was laid off from her
job. Since she could only find part time employment she decided to return to Poland. She severed her ties
to Canada.
[3]
When
the Appellant returned to Poland she started to work at the Canadian embassy in Warsaw. In 1999 she married
Thomas Richter who is a foreign service officer with the Canadian Government.
Thomas Richter was working at the Canadian embassy in Warsaw until the summer
of 2000 when he was requested to transfer to the embassy in Tehran, Iran. In 2001, Thomas
Richter was reassigned to the Canadian embassy in Berlin, Germany. The periods of
employment in question occurred while the Appellant was living with Thomas Richter
in Germany. They were living in an
apartment in Berlin.
[4]
Insurable
employment is defined in section 5 of the EI Act. This section provides,
in part, that:
5. (1) Subject to subsection (2),
insurable employment is
(a) employment in Canada by one or more
employers, under any express or implied contract of service or apprenticeship,
written or oral, whether the earnings of the employed person are received from
the employer or some other person and whether the earnings are calculated by
time or by the piece, or partly by time and partly by the piece, or otherwise;
…
(d) employment included by regulations
made under subsection (4) or (5);
[5]
Subsection
5(4) of the EI Act provides that:
(4) The Commission may, with the approval
of the Governor in Council, make regulations for including in insurable
employment
(a) employment outside Canada or partly outside Canada that would be insurable
employment if it were in Canada;
[6]
Section
5 of the Employment Insurance Regulations provides, in part, that:
5. Employment outside Canada…is included in insurable employment if
(a) the
person so employed ordinarily resides in Canada…
[7]
The
issue in this case is whether the Appellant ordinarily resided in Canada when she was employed
for the periods in question since her employment was outside Canada. This was the basis of
the argument for both parties. There is no definition of “ordinarily resides”
in the EI Act. Therefore it is necessary to review how this expression
has been interpreted by the Courts.
[8]
Justice Rand of the
Supreme Court of Canada in Thomson v. M.N.R., [1946] C.T.C. 51, made the
following comments on “residing” and “ordinarily resident”:
47 The gradation of degrees
of time, object, intention, continuity and other relevant circumstances, shows,
I think, that in common parlance "residing" is not a term of
invariable elements, all of which must be satisfied in each instance. It is
quite impossible to give it a precise and inclusive definition. It is highly
flexible, and its many shades of meaning vary not only in the contexts of
different matters, but also in different aspects of the same matter. In one
case it is satisfied by certain elements, in another by others, some common,
some new.
48 The expression
"ordinarily resident" carries a restricted signification, and
although the first impression seems to be that of preponderance in time, the
decisions on the English Act reject that view. It is held to mean residence in
the course of the customary mode of life of the person concerned, and it is
contrasted with special or occasional or casual residence. The general mode of
life is, therefore, relevant to a question of its application.
[9]
In Lapierre
v. The Queen, 2005 TCC 720, 2008 DTC 4248, Justice Dussault stated that:
13 Although
residence is the fundamental concept applied to determine if a person is
subject to income tax under the Act, that term is nonetheless not defined
therein and it is the courts that have attempted to establish its scope.
Essentially a question of fact, a person's residence in a given place is
determined by a certain number of criteria of time, object, intention and
continuity that do not necessarily always carry the same weight and which can
vary according to the circumstances of each case. (see Thomson v. M.N.R.,
[1946] S.C.R. 209). All things considered, residence implies a certain
constancy, a certain regularity or else a certain permanence according to a
person's usual lifestyle in relation to a given place and is to be
distinguished from what might be called visits or stays for specific purposes
or of a sporadic nature. When the Act sets as a condition to reside with
another person, I do not consider it appropriate to attribute to the verb
"to reside" a meaning which deviates from the concept of residence as
it has been developed by the courts. To reside with someone is to live or stay
with someone in a given place with a certain constancy, a certain regularity or
else in an habitual manner.
[10] There is very little in
this case to suggest that the Appellant resided in Canada in 2001 and 2002. She had severed
what ties she had to Canada when she returned to Poland in 1996. After the Appellant and
Thomas Richter were married in Poland, they travelled to Toronto to have a civil ceremony there on
November 6, 1999. They stayed with Thomas Richter’s parents for about one week
at that time. They opened two bank accounts – a US dollar account and a
chequing account. The chequing account was closed in December 2000 and the US
dollar account was closed early in 2002.
[11] The Appellant had an Ontario driver’s licence. The
address used for the licence was a post office box provided by the Federal
Department of Foreign Affairs for use by foreign service personnel.
[12] In the summer of 2000
the Appellant and Thomas Richter travelled to Canada. They were going to try to find a
house but the time was too short. They did not have a residence in Canada at any time during the
periods in question.
[13] There are simply not
enough ties to Canada to find that the Appellant ordinarily resided in Canada during the periods
under appeal. In particular, the Appellant could not be considered to be
ordinarily residing in Canada in 2001 and 2002 since she did not have a place in which she
could have resided in Canada during those years. While she could have stayed with
Thomas Richter’s parents in Canada, there was nothing to suggest that this would be anything
other than a place to visit. There was no indication that this would be a place
to reside.
[14] The Appellant’s main
argument was that since her husband is a diplomat and therefore is deemed to be
a resident of Canada, that she should also be deemed to be a resident of Canada. While it appears that there
is a provision in the Income Tax Act that deems Thomas Richter to
be a resident of Canada (paragraph 250(1)(c)), this paragraph only applies for
the purposes of the Income Tax Act (not for the purposes of the EI Act)
and it does not apply to spouses. Paragraph 250(1)(e) of the Income Tax Act
did apply to spouses but it was repealed and replaced with a provision that may
still apply to the Appellant. This provision provides as follows:
250. (1) For the purposes of this Act, a person shall, subject to
subsection (2), be deemed to have been resident in Canada throughout a taxation
year if the person
…
(g) was at any time in the year, under an agreement or a convention with
one or more other countries that has the force of law in Canada, entitled to an
exemption from an income tax otherwise payable in any of those countries in
respect of income from any source (unless all or substantially all of the
person's income from all sources was not so exempt), because at that time the
person was related to or a member of the family of an individual (other than a
trust) who was resident in Canada.
[15] However if this
provision is applicable to the Appellant, it would only apply for the purposes
of the Income Tax Act. There is no similar provision in the EI Act or
the Employment Insurance Regulations.
[16] The Appellant was not
able to provide any legislative or case law authority to support her position
that she ordinarily resided in Canada or should be deemed to ordinarily reside in Canada for the
purposes of the EI Act simply because her husband is a diplomat who was
working at the Canadian embassy in Berlin. Policy statements related to foreign service
officers and their families cannot amend the EI Act or the common law.
[17] As a result the
Appellant’s appeal is dismissed, without costs.
Signed at Halifax,
Nova Scotia, this 19th day of July, 2010.
“Wyman W. Webb”
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