Citation: 2009 TCC 561
Date: 20091103
Docket: 2008-3884(EI)
BETWEEN:
JINGANG GUAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Favreau, J.
[1]
The appellant appeals
the determination of the Minister of National Revenue (the “Minister”) dated
September 8, 2008, that his employment with the University of Sussex
located in Brighton, East Sussex, in Great Britain, from February 28, 2006
to February 28, 2007 was not insurable employment under the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”) and the Employment
Insurance Regulations. The reason for the determination was that the
employment of the appellant was outside Canada or partly outside Canada with an
employer who did not reside in Canada or had no place of business in Canada.
[2]
It has been established
that, at all material times, the appellant was employed by the University of
Sussex from September 16, 2004 to February 28, 2007 as a research
fellow under the direction of Dr. Hazel Cox on a research project funded
by the Engineering and Physical Sciences Research Council titled “Metal ion solvation
in the gas phase: exploring higher oxidation states”. In a letter dated
November 11, 2008, Dr. Cox explained in the following terms how this
research project was conducted in collaboration with the University of Calgary and the role played by the appellant:
. . . key to this project was collaboration with the group
of Prof. Tom Ziegler, University of Calgary, Canada, which involved the implementation of open‑shell time‑dependent
density functional theory. Jingang was responsible for working on the testing
of this implementation in close collaboration with the Ziegler group and also
spent three months in Canada to
facilitate this work. This collaboration with the University
of Calgary resulted in a joint
(UK/Canada) research publication. Jingang continued to use the facilities at
Calgary throughout the period spent at Sussex applying the code to multiply charged metal ligand complexes.
[3]
In a letter dated
January 23, 2008, the Human Resources Department of the University of Sussex confirmed that the appellant was employed
by the University of Sussex
from September 16, 2004 to February 28, 2007; that he worked full
time at 37.5 hours per week; and that his salary was 31 211 pounds
sterling per annum.
[4]
During his employment
with the University of Sussex, the appellant maintained his residency
status in Canada and in Quebec and filed his tax returns with the Canada
Revenue Agency (“CRA”) and Revenu Québec. No employment insurance premiums were
paid by the appellant to the Canadian taxation authorities in 2006. The appellant
also filed tax returns with the Inland Revenue of United Kingdom and paid national insurance premiums which included unemployment
insurance.
[5]
After termination of
his employment with the University of Sussex, the appellant applied to the HM
Revenue & Customs of the United
Kingdom for a jobseekers allowance.
The appellant’s application was denied because the jobseekers allowance cannot
be paid outside of the United
Kingdom. The U.K. authority sent to the appellant a copy of the Social
Security agreement between the United Kingdom and Canada
with a letter dated December 7, 2007 telling him that the jobseekers allowance
in the U.K. is covered by this reciprocal agreement and encouraged him to apply
for the employment insurance benefit in Canada.
[6]
By letter dated
July 14, 2009, CRA sought confirmation from various representatives of the
University of Sussex, if it had a branch or a place
of business in Canada for its foreign students, teachers or
employees. On July 15, 2009, Sara E. Dyer of the International
Student Support confirmed by e‑mail that the
University of Sussex has no branch or place of business in Canada.
Analysis
[7]
Insurable employment is
defined in section 5 of the Act. By virtue of paragraph 5(1)(d), insurable
employment includes “employment included by regulations made under subsection
(4) or (5)”. Subsection 5(4) of the Act reads as follows:
Regulations to include employment — 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;
…
[8]
The regulations have
been duly made and section 5 of the Employment Insurance Regulations
SOR/96‑332 (the “Regulations”) reads as follows:
5. Employment outside Canada, other than employment on a ship
described in section 4, is included in insurable employment if
(a) the person so employed ordinarily resides
in Canada;
(b)
that employment is outside Canada or partly
outside Canada by an employer
who is resident or has a place of business in Canada;
(c)
the employment would be insurable employment if
it were in Canada; and
(d)
the employment is not insurable employment under
the laws of the country in which it takes place.
[9]
The expression “place
of business in Canada” is not defined in the Act but a similar section in
the Canada Pension Plan Regulations C.R.C., c. 385 refers to an
employer who has an establishment in Canada and the expression “establishment
in Canada” is defined as follows in section
15 of the said Regulations:
“establishment in Canada”, with respect to an employer, means an
office, warehouse, factory, oil well, gas well, mine, workshop, farm, timber
land, pier, wharf, school, college, club, residence, hotel, motel, restaurant,
tavern, bar or any other place or premises in Canada that is owned, leased or licensed
by the employer and where the employer or one or more of his employees works or
reports for work or from or at which one or more of his employees are paid:”
[10]
The appellant testified
at the hearing. The evidence disclosed that the appellant spent about three
months in Canada while working for the University of Sussex. No information is available of the exact
date on which the appellant reported to work at the University of Calgary. According to the appellant, the University of Calgary provided him with an ID card, an office, a computer
and access to their laboratories and to a software developed by the University of Calgary. No evidence was given by the appellant
concerning the terms and conditions of the research collaboration between the
University of Sussex and the University of Calgary nor information supporting
the fact that the University of Sussex could be considered to have an
establishment or a place of business at the University of Calgary.
Mr. Alain Lacoste of CRA confirmed at the hearing that the University of Sussex had not filed any T‑2 forms with the
Canadian taxation authorities in respect of the 2006 and 2007 taxation years.
[11]
Consequently, the
appellant has not established on a balance of probabilities that the University
of Sussex had a place of business in Canada during the terms of his employment.
[12]
The Consolidated Arrangements
on Social Security between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of Canada that was attached as a
schedule to the letter dated 11 October, 1994 from the High Commission for
the United Kingdom in Canada to the Minister of Employment and Immigration
cannot be of assistance to the appellant because the unemployment benefit
clause contained in paragraphs 7 and 8 of Part II is not applicable to the
laws of Canada. The said paragraphs 7 and 8 read as follows:
(7) For the purpose of any claim to receive
unemployment benefit under the legislation of the United Kingdom, a person who
has at any time before 6 April 1975 paid at least twenty‑six weekly
contributions as an employed person under the legislation of the United
Kingdom, or in any year since 6 April 1975 has paid contributions as an
employee earner on earnings of at least twenty‑five times that year’s
weekly lower earnings limit, shall be treated, for the purpose of any such
claim, as if:
(a) he had paid, under
that legislation, an employed earner’s contribution on earnings equivalent to
two-thirds of that year’s upper earnings limit, for each week during which he
was gainfully occupied in employment in Canada;
(b) he had had a contribution credited to him
under that legislation as an employed person for any week during which he was
resident in Canada and was unemployed and available for work or was incapable
of work, if that week was part of a period during which he was ordinarily
gainfully occupied in employment in Canada.
(8) Nothing in paragraph (7) shall diminish
any right which a person has, apart from these arrangements, to receive
unemployment benefit under the legislation of the United
Kingdom.
[13]
That unemployment
benefit clause has no reciprocal effect in Canada
and the mutual assistance clause contained in paragraph 7 of the said
arrangements is not broad enough to confer rights to the appellant to obtain
employment insurance benefit in Canada. The mutual assistance clause reads as
follows:
(17) the two parties shall assist one another on
any matter relating to application of these arrangements as if the matter were
one affecting the application of their own legislation.
[14]
In conclusion, the appellant
has not established on a balance of probabilities that he was employed by an
employer who had a place of business in Canada.
The employment with the University of Sussex was thus not insurable employment.
The appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 3rd day of November 2009.
“Réal Favreau”
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