Citation: 2009 TCC 14
Date: 20090119
Docket: 2008-2027(EI)
BETWEEN:
CEDRICK ADAMS DUNN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
On December 3, 2007,
Cedrick Adams Dunn ("the Worker") asked the Minister of National
Revenue ("the Minister") to determine whether he was employed in
insurable employment under the Employment Insurance Act ("the Act")
while working for Denis Dunn ("the Payor") from June 17, 2007,
to August 11, 2007 ("the relevant period"). The Minister
determined that the Worker was employed in insurable employment during the
period in which he worked for the Payor, and that he accumulated 692 insurable
hours during that period. The Worker is appealing solely from the
Minister's determination concerning the hours of insurable employment. It should
also be noted that the Payor is seeking $10,000 in damages.
[2]
I should immediately
note that the Court does not have jurisdiction to make any decision with
respect to the issue of the claim for $10,000 in damages.
[3]
In making his
determination, the Minister relied on the following assumptions of fact, set
out in paragraph 15 of the Reply to the Notice of Appeal:
(a)
The Payor owns a
40-foot fishing vessel called the Marie‑K‑D. (admitted)
(b)
The Payor is the
Appellant's father. (admitted)
(c)
The Payor lived in Rivière-au-Renard.
(admitted)
(d)
The Payor was the
holder of a crab fishing allocation and a 62,000‑pound turbot fishing
quota. (denied as worded)
(e)
The Payor delivered his
catches to a company called Les Pêcheries Gaspésiennes. (admitted)
(f)
Denis Dunn alone bore all
the expenses related to his boat and to fishing. (admitted)
(g)
The Appellant bore no
financial responsibility for the expenses incurred in making catches. (admitted)
(h)
On June 15, 2007,
Les Pêcheries Gaspésiennes notified the Payor that, for the remainder of the
season, all turbot was to be delivered gutted. (admitted)
(i)
The Appellant was
attending school in June 2007. (admitted)
(j)
The Payor hired the
Appellant as a fisherman's helper at that time. (admitted)
(k)
On September 28, 2007, the
Payor told a representative of the Respondent that fishing was done 7 days a
week. (denied as worded)
(l)
On September 28, 2007, the
Appellant told a representative of the Respondent that he did not work Sundays
during the fishing season except once his father took note of his hours of
work. (denied as worded)
(m)
On August 9, 2007, the
Payor gave the Appellant a Record of Employment (ROE) which stated that his
first day of work was June 24, 2007, that his last day of work was
August 4, 2007, that the number of insurable hours was 881, and that
the insurable earnings totalled $2,779.69. (denied as worded)
(n)
The Appellant was
entered in the Payor's payroll journal for 881 hours over six weeks of fishing,
broken down as follows:
|
Ending
|
|
Week 1
|
June 30
|
98 hours
|
|
Week 2
|
July 7
|
295 hours
|
|
Week 3
|
July 14
|
101 hours
|
|
Week 4
|
July 21
|
101 hours
|
|
Week 5
|
July 28
|
196 hours
|
|
Week 6
|
August 4
|
90 hours
|
(admitted)
(o)
On September 28, 2007, the
Payor told a representative of the Respondent that a normal fishing day ranged
from 15 to 20 hours. (admitted)
(p)
196 hours in one week meant
an average of 28 hours per day. (denied as worded)
(q)
The hours for the weeks
of July 7 and July 28 were exaggerated, and the Respondent deemed the number
for each to be 101 hours. (denied)
(r)
A 50-hour week
preparing for fishing and a 50‑hour week for storage following the last
fishing period were added to the Appellant's period of employment. (admitted)
(s)
The Appellant's period
of employment with the Payor was from June 17, 2007, to August 11, 2007.
(denied)
(t)
The Appellant's insurable
hours totalled 692 and were as follows:
|
Week ending
|
|
June 23
|
Preparatory week
|
50 hours
|
|
June 30
|
|
98 hours
|
|
July 7
|
|
101 hours
|
|
July 14
|
|
101 hours
|
|
July 21
|
|
101 hours
|
|
July 28
|
|
101 hours
|
|
August 4
|
|
90 hours
|
|
August 11
|
Storage week
|
50 hours
|
(denied)
[4]
The Worker testified.
The Payor and his wife testified in support of the Worker's position. In
addition, Louise Dessureault, the appeals officer who handled the file,
testified in support of the Respondent's position.
The testimony of the Worker, the Payor and
the Payor's wife
[5]
The Worker, the Payor
and the Payor's wife essentially testified as follows:
(i)
The Worker worked for
881 hours from March 4, 2007, to April 18, 2007, and those
hours were worked as follows:
|
|
Sunday
|
Monday
|
Tuesday
|
Wednesday
|
Thursday
|
Friday
|
Saturday
|
Total
|
|
Week of March
4 to March 10, 2007
|
|
10
|
10
|
10
|
10
|
10
|
|
50
|
|
Week of March 11
to March 17, 2007
|
10
|
6
|
7
|
5
|
6
|
6
|
10
|
50
|
|
Week of March
18 to March 24, 2007
|
10
|
6
|
6
|
6
|
6
|
6
|
10
|
50
|
|
Week of March
25 to March 31, 2007
|
10
|
7
|
5
|
10
|
4
|
4
|
10
|
50
|
|
Week of April
29 to May 5, 2007
|
10
|
10
|
5
|
3
|
10
|
2
|
10
|
50
|
|
Week of June
24 to June 30, 2007
|
|
19
|
14
|
16
|
18
|
15
|
16
|
98
|
|
Week of July 1
to July 7, 2007
|
|
8
|
15
|
13
|
18
|
16
|
15
|
95
|
|
Week of July
15 to July 21, 2007
|
7
|
18
|
13
|
15
|
19
|
14
|
15
|
101
|
|
Week of July 8
to July 14, 2007
|
|
19
|
18
|
16
|
15
|
19
|
14
|
101
|
|
Week of July 22
to July 28, 2007
|
|
20
|
16
|
17
|
18
|
12
|
13
|
96
|
|
Week of July 29
to August 4, 2007
|
|
19
|
14
|
14
|
13
|
18
|
12
|
90
|
|
Week of August
12 to August 18, 2007
|
|
11
|
9
|
10
|
9
|
11
|
|
50
|
|
|
|
|
|
|
|
|
|
881
|
(ii)
The work done by the
Worker in March 2007 (200 hours over four weeks) essentially consisted in knitting
fishing nets, repairing nets, setting up nets, assembling the frames, and
checking the floats and dragnets. I should note that the Payor owned 300
fishing nets. The evidence also disclosed that the Payor fished alone
until June 17, 2007, and that he used only 50 of his 300 nets
during that period. However, I note that the Worker's evidence was silent with
respect to the number of nets used by the Payor after June 15, 2007,
and with respect to the number of nets repaired in March 2007.
The Worker (who, it should be emphasized, was a Grade 11 student in
2007), explained that he did the 200 hours of work after classes, on weekends
and during school breaks. I should also note that, based on those individuals'
testimony, the Worker did the same turbot fishing preparation work for his
father on a volunteer basis in 2006.
(iii)
The work done by the
Worker during the week ending May 5, 2007 (50 hours of work)
consisted in preparing the boat for the turbot fishing season, which began on
May 20 of that year.
(iv)
The work done by the
Worker during the period from June 24, 2007, to August 4, 2007
(581 hours of work over six weeks) consisted in turbot fishing on the Payor's
fishing vessel.
(v)
The work done by the
Worker during the week ending August 18, 2007 (50 hours) essentially
consisted in cleaning the boat prior to its storage and checking the fishing
nets prior to their storage.
[6]
The evidence further disclosed
as follows:
(i)
The Payor's fishing
season began on May 20, 2007, and ended on August 4, 2007.
(ii)
From
May 20, 2007, to June 15, 2007, the Payor delivered and sold
to Les Pêcheries Gaspésiennes Inc. ("the buyer") all its turbot
catches, which were not gutted.
(iii)
On June 15, 2007,
the buyer notified the Payor that its turbot catches would thereafter have to
be delivered gutted.
(iv)
As a result of the buyer's
new directives, it was no longer possible for the Payor to fish without a
helper.
(v)
For
the week of May 20, 2007, to May 26, 2007, the Payor's sales totalled $33,228.
(vi)
For
the week of May 27, 2007, to June 2, 2007, the Payor's sales totalled $2,023.
(vii)
For
the week of June 3, 2007, to June 9, 2007, the Payor's sales totalled $40,239.
(viii)
For
the week of June 10, 2007, to June 16, 2007, the Payor's sales totalled $5,940.
(ix)
For
the week of June 17, 2007, to June 23, 2007, the Payor's sales
totalled $5,503.
(x)
For
the week of June 24, 2007, to June 30, 2007, the Payor's sales totalled $5,283.
(xi)
For
the week of July 1, 2007, to July 7, 2007, the Payor's sales totalled $5,549.
(xii)
For
the week of July 8, 2007, to July 14, 2007, the Payor's sales totalled $4,950.
(xiii)
For
the week of July 15, 2007 to July 21, 2007, the Payor's sales totalled $2,318.
(xiv)
For
the week of July 22, 2007, to July 28, 2007, the Payor's sales totalled $2,256.
(xv)
The
Worker agreed with the Payor on a remuneration based on a percentage of
the turbot that the Payor sold to the buyer during the period that the Worker was
fishing on board the Payor's vessel. In the instant case, the Worker
received remuneration of
(1)
$470.71 for the week of
June
24, 2007, to June 30, 2007, that is to say, 8% of the Payor's sales during that
period;
(2)
$776.98 for the week of
July
1, 2007, to July 7, 2007, that is to say, 14% of the Payor's sales during that
period;
(3)
$693.14 for the week of
July
8, 2007, to July 14, 2007, that is to say, 14% of the Payor's sales during
that period;
(4)
$324.63 for the week of
July
15, 2007, to July 21, 2007, that is to say, 14% of the Payor's sales during
that period;
(5)
$315.88 for the week of
July 22, 2007,
to July 28, 2007, that is to say, 14% of the Payor's sales during that period;
(6)
$198.35 for the week of
July 29, 2007,
to August 4, 2007, that is to say, 14% of the Payor's sales during that period.
(xvi)
The buyer prepared the
Worker's pay and his Record of Employment (ROE).
(xvii)
The Worker's ROE (Exhibit
A-1), which was filled out by the buyer on the Payor's behalf, stated that the
first day of work was June 24, 2007, and that the last day of work
was August 4, 2007.
(xviii)
The EI benefit claim
filled out by the Worker (Exhibit I‑2) states that he worked for
16 hours on July 29, 2007;
16 hours on July 30, 2007;
16 hours on July 31, 2007;
16 hours on August 1, 2007;
16 hours on August 2, 2007;
16 hours on August 3, 2007; and
16 hours on August 4, 2007.
I would note once again that the Worker,
the Payor and the Payor's spouse testified that the Worker worked for
No hours on July 29, 2007;
19 hours on July 30, 2007;
14 hours on July 31, 2007;
14 hours on August 1, 2007;
13 hours on August 2, 2007;
18 hours on August 3, 2007; and
12 hours on August 4, 2007.
(xix)
Since the Worker had
newly entered the workforce, he needed to accumulate 840 insurable hours in
order to be eligible for EI benefits.
Analysis and determination
The law
[7]
The relevant provisions
of the Act and the Regulations thereunder read as follows:
Section 5(1)(a) of the Act
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;
. . .
Section 10 of the Employment Insurance Regulations
(1) Where a person's earnings are not
paid on an hourly basis but the employer provides evidence of the number of
hours that the person actually worked in the period of employment and for which
the person was remunerated, the person is deemed to have worked that number of
hours in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, if the
employer cannot establish with certainty the actual number of hours of work
performed by a worker or by a group of workers and for which they were
remunerated, the employer and the worker or group of workers may, subject to subsection
(3) and as is reasonable in the circumstances, agree on the number of hours of
work that would normally be required to gain the earnings referred to in
subsection (1), and, where they do so, each worker is deemed to have worked
that number of hours in insurable employment.
(3) Where the number of hours agreed to by the
employer and the worker or group of workers under subsection (2) is not
reasonable or no agreement can be reached, each worker is deemed to have worked
the number of hours in insurable employment established by the Minister of
National Revenue, based on an examination of the terms and conditions of the
employment and a comparison with the number of hours normally worked by workers
performing similar tasks or functions in similar occupations and industries.
(4) Except where subsection (1) and section 9.1 apply, where
a person's actual hours of insurable employment in the period of employment are
not known or ascertainable by the employer, the person, subject to subsection
(5), is deemed to have worked, during the period of employment, the number of
hours in insurable employment obtained by dividing the total earnings for the
period of employment by the minimum wage applicable, on January 1 of the year
in which the earnings were payable, in the province where the work was
performed.
(5) In the absence of evidence indicating that overtime or
excess hours were worked, the maximum number of hours of insurable employment
which a person is deemed to have worked where the number of hours is calculated
in accordance with subsection (4) is seven hours per day up to an overall
maximum of 35 hours per week.
(6) Subsections (1) to (5) are subject to section 10.1.
Employment Insurance (Fishing) Regulations
INTERPRETATION
1. (1) The definitions in this subsection apply in these Regulations.
"buyer" means a person who buys a catch for the purpose of
reselling it, either in the form in which it was caught or after processing,
and not for the purpose of using it as food, feed or bait. (acheteur)
"catch" means any natural product or by-product of the
sea, or of any other body of water, caught or taken by a crew and includes
fresh fish, cured fish, Irish moss, kelp and whales, but does not include fish
scales or seals, and
(a) where only a portion of a catch is delivered to a buyer,
means the portion delivered; and
(b) where more than one catch or portion of a catch is
delivered to a buyer at one time, means the catches or portions that are
delivered. (prise)
"crew" means a group of fishers who generally engage in
making a catch together or who have actually engaged in making a catch together
and, in the case of a single fisher, "crew" or "member of a crew",
as the case may be, means that single fisher.
(équipage)
"cured fish" means the following fish and fish products:
(a) salted groundfish, smoked herring, pickled mackerel,
pickled turbot, pickled herring, pickled and salted alewives, pickled trout and
other pickled fish products; and
(b) cod oil and cod livers. (poisson traité)
"employer" means a person included by section 3 as the
employer of a fisher. (employeur)
"fisher" means a self-employed person engaged in fishing
and includes a person engaged, other than under a contract of service or for
their own or another person’s sport,
(a) in making a catch;
(b) in any work incidental to making or handling a catch,
whether the work consists of loading, unloading, transporting or curing the
catch made by the crew of which the person is a member, or of preparing,
repairing, dismantling or laying-up the fishing vessel or fishing gear used by
that crew in making or handling the catch, where the person engaged in any such
incidental work is also engaged in making the catch; or
(c) in the construction of a fishing vessel for their own use
or for the use of a crew of which the person is a member in making a catch. (pêcheur)
"fishing gear" means any specialized equipment, other than
hand tools or clothing, used by a crew exclusively in making a catch. (engins
de pêche)
"fresh fish" means fish that is not cured fish. (poisson
frais)
"major attachment claimant" means a claimant who qualifies
to receive benefits and has $3,760 or more of insurable earnings from
employment as a fisher in their qualifying period. (prestataire de la
première catégorie)
"minimum wage", in respect of the earnings of a fisher
from the catch of a crew, means the minimum wage in effect in the province
where the fisher resides on January 1 of the year in which the catch is sold. (salaire
minimum)
"minor attachment claimant" means a claimant who qualifies
to receive benefits and has less than $3,760 of insurable earnings from
employment as a fisher in their qualifying period. (prestataire de la
deuxième catégorie)
(2) An
employer who is engaged in work incidental to a catch that is generally
performed on shore shall not, at any time, be regarded as a member of the crew
that made the catch.
SOR/2000-394,
s. 1; SOR/2001-74, s. 1.
[8]
In the case at bar, the
Worker had to satisfy me that the Minister was unreasonable in his determination
of the number of hours that the Worker worked during his period of employment.
[9]
I should note from the
outset that the Worker has not satisfied me that he worked for 200 hours in
March 2007. First of all, I find it implausible that a young man 16 years
of age could have accumulated so many hours of work (even when the one‑week
break in March 2007 is taken into consideration) while attending his classes
and doing the assignments that would normally be associated with the classes. I find
it equally implausible that the work purportedly done in March by the Payor and
the Worker (which, as we have seen, supposedly consisted in knitting 50 fishing nets,
repairing and setting up nets, assembling the frames and checking the floats
and dragnets) took 200 hours for the workers to do, and roughly the same
number of hours for the Payor. Moreover, the fairly substantial difference
between the testimony given by the Worker, the Payor and the Payor's wife on
the one hand, and the EI benefit claim (Exhibit I‑2) on the other,
with regard to the number of hours worked, notably for the week ending
August 4, 2007, only added to my doubts concerning the number of
hours actually worked in March 2007.
[10]
Even if the Worker had
satisfied me that he truly did 200 hours of work, those hours would not have
been considered insurable, because they would not have been under a contract of
service, since, in my opinion, that contract was entered into on or after June 15, 2007,
not in or before March 2007. Indeed, the evidence clearly discloses that, prior
to June 15, 2007, the Payor had no intention of hiring any helper. Did
he not in fact fish on his own before that date? On June 15, 2007, the
buyer sent the Payor a notice stating that all turbot catches would have to be delivered
gutted. As a result of this notice, the Payor could not longer fish alone. It
was at this time that the Worker's services were hired and that a contract of
service was entered into.
[11]
Thus, the Worker has
not satisfied me that the Minister unreasonably determined the period of
employment and the hours actually worked during that period.
[12]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada, this 19th day of January 2009.
"Paul Bédard"
Translation
certified true
on this 26th day
of January 2009.
Brian McCordick,
Translator
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