Docket: 2007-1482(EI)
2007-1483(CPP)
BETWEEN:
JOSEPH K. ZINCK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeals
heard in part on September 28, 2007, at Halifax,
Nova Scotia
By: The Honourable
Justice C.H. McArthur
Appearances:
|
For the Appellant:
Counsel for the Respondent:
|
The
Appellant himself
Deanna Frappier
|
____________________________________________________________________
JUDGMENT
After the commencement of the
hearing, counsel for the Respondent informed the Court that she would consent
to Judgment.
The appeals pursuant to subsection
103(1) of the Employment Insurance Act and section 28 of the Canada
Pension Plan are allowed and the determination of the Minister of National
Revenue on the appeal made to him under section 92 of the Act and the
determination of the Minister on the application made to him under section 27.1
of the Plan are varied on the basis that the Appellant was not
employed in insurable or pensionable employment during the period January 1,
2005 to August 21, 2006.
Costs to the Appellant in the amount of $750.
Signed at Ottawa, Canada, this 4th
day of October 2007.
“C.H. McArthur”
Citation: 2007TCC592
Date: 20071004
Docket: 2007-1482(EI)
2007-1483(CPP)
BETWEEN:
JOSEPH K. ZINCK,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
McArthur J.
[1] These were
disturbing appeals heard in Halifax on Friday, September 28, 2007. The Minister of National
Revenue’s (the “Minister”), position was that the Appellant was an employee
within the meaning of paragraph 5(1)(a) of the Employment Insurance
Act (the “Act”). The Appellant stated that he worked but two days,
three hours per day for a man known only as Shenk (phonetic), painting walls in
a residential building and was paid $100 in cash. Ms. Kennedy confirmed this
and I believed them.
[2] I found it upsetting for
these reasons:
(a) In
the Courtroom prior to my entering, the Minister’s main witness made remarks to
an Appellant witness, Angie M. Kennedy, seriously upsetting her. As a result,
the hearing was delayed for the attendance of two police officers.
(b) At
the outset of the trial, Respondent’s counsel consented to judgment for the
period from January 1, 2006 to August 31, 2006. The Appellant “may” have been
incarcerated during this period.
(c) The Appellant had
absolutely no knowledge of assumptions of facts 5(a), (b), (c), (d) and (e) in
the Reply to the Notice of Appeal. He disagreed with all of the remaining
assumptions, (f) to (n) inclusive. I accept the Appellant’s evidence that not
one of these final assumptions, relied on by the Minister, were accurate and
they were the only assumptions of substance.
(d) Both the Appellant and
Ms. Kennedy were very uncomfortable in the Court setting and were difficult to
follow, but I believe that all of the Minister’s meaningful assumptions were wrong.
(e) The Appellant’s
purported signatures on invoices presented to the Appellant were obviously
forgeries. One did not have to be an expert in determining this by comparing
his actual signature with that on the invoices.
(f) He knew nothing
about the invoices. All he knew was that he painted six hours over two days for
Shenk and received $100 in cash.
(g) Mr. Jourdrey
testified for the Respondent. He had no personal knowledge of the material
assumptions upon which the Minister arrived at his decision. I believe he
relied on the phoney invoices and what Shenk told him.
(h) Respondent’s counsel
advised she was not calling Shenk to testify.
(i) At this point, we
took a 15-minute recess and I requested counsel to give serious thought to what
was before us.
(j) I do not believe
the Appellant was well, leaving him vulnerable and it would appear that Ms.
Kennedy was assisting him.
(k) Upon returning to
the bench, Counsel for the Respondent advised she was consenting to judgment in
favour of the Appellant for the entire appeal.
[3] I stated that, while I may not have
jurisdiction, I was awarding costs to the Appellant adding that I did not
believe the Minister would object. I was wrong. In a letter dated September 28,
2007 counsel states that there is no statutory provision allowing for an award
of costs in employment insurance matters and refers to Regroupement Mamit
Innuat Inc. v. The Minister of National Revenue.
[4] I find jurisdiction
in Fournier v. Canada. Justice Archambault, in
his decision as trial judge, noted that he wished that the Informal Procedure
provided a mechanism for awarding costs, in his instance, against the taxpayer,
because of his irrelevant claims and failure to cooperate.
[5] Upon appeal Letourneau,
J.A. found that the Tax Court has the inherent jurisdiction to prevent and
control an abuse of process. He stated at paragraph 11:
The judge stated that he had no jurisdiction to impose
costs on an appellant who unnecessarily delayed an appeal process initiated
within an informal proceeding. I should point out that the Tax Court of Canada
has the inherent jurisdiction to prevent and control an abuse of its process:
see Yacyshyn v. Canada, [1999] F.C.A. No. 196
(F.C.A.).
I cannot imagine a more appropriate instance to apply this inherent
jurisdiction to prevent and control an abuse of the Tax Court’s process.
[6] Upon consent, the appeal is allowed in its entirety. Costs
in the amount of $750 are awarded to the Appellant to be payable forthwith.
Signed at Ottawa, Canada, this 4th day of October 2007.
“C.H. McArthur”
CITATION: 2007TCC592
COURT FILE NO.: 2007-1482(EI)
2007-1483(CPP)
STYLE OF CAUSE: Joseph K. Zinkc v. MNR
PLACE OF HEARING: Halifax,
Nova Scotia
DATE OF HEARING: September 28, 2007
REASONS FOR JUDGMENT BY: The
Honourable Justice C.H. McArthur
DATE OF JUDGMENT: October 4, 2007
APPEARANCES:
|
For the
Appellant:
Counsel for the
Respondent:
|
The Appellant himself
Deanna Frappier
|
|
|
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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