Citation: 2009 TCC
296
Docket: 2006-3021(EI)
TAX
COURT OF CANADA
Re: Employment Insurance Act
BETWEEN:
LINDA BELLAVANCE,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
DELIVERED BY THE HONOURABLE
JUSTICE ROBERT HOGAN
Tax Court of Canada,
Courts Administration Service,
Crowne Plaza Hotel, 1005 Main Street, Moncton, New Brunswick
Tuesday, September 9, 2008
APPEARANCES:
|
Linda Bellavance
|
For the appellant
|
|
|
|
|
Marie-Claude Landry
|
Counsel for the
respondent
|
ALSO PRESENT:
|
Serge Laforge
|
Clerk/technician
|
|
|
|
|
Hélène Amélie
Boudreau-Laforge
|
Legal stenographer
|
564 Route 280
Dundee, New Brunswick E8E
1Z1
(506) 826-1115
(Revised version of transcript of reasons
for judgment given at the hearing in Moncton, New Brunswick on September 9, 2008)
DECISION PRONOUNCED ORALLY BY MR. JUSTICE
HOGAN, J.T.C.C.
I will summarize. The issue was whether, as declared in the
proceedings, the employment of Linda Bellavance, the appellant, was insurable
during the period in question, as defined under paragraph 4 of the reply to the
notice of appeal.
The basic question for the court is: was there an
employee/employer relationship between the them during the period in question,
during which there was a layoff—but with the claim by the appellant that she
was called back immediately thereafter, to work at the same duties she performed
previously?
I listened to the appellant attentively and found she testified
very openly. I asked many questions and she always answered them directly.
She shared two facts with me; first, that the company operated
before March and second...this fact was corroborated by the company's
accountant who admitted that there was in fact an undeclared operation, then
later a decision to declare the income in question.
Ms. Bellavance testified that after her layoff, she was called
back, and the Court has no reason to doubt this, she was called back to her
duties and was again an employee of the company in question.
When I asked Stéphane Leblanc questions, I do not believe he
testified as honestly as Ms. Bellavance.
At first, I asked this question to test his credibility: was
there any undeclared income? He was evasive. I continued my line of
questioning, and finally he answered yes, there may have been at the beginning,
there was.
Then, when I asked about the "pocket bike," he was
evasive, and finally admitted there was undeclared income.
The Court therefore has strong reservations as to this witness's
credibility.
I asked for his explanation of the new arrangement. He said Mr.
Leblanc, after the... There was a break and then a new legal arrangement that
came into force with Mr. Leblanc, giving him more freedom than before.
The reason―before, he was not managing the company well, he took too much
money, then it was decided that he would have more freedom, and he would decide
himself how to manage the company, build it up and find money.
I have trouble believing this version of the facts because
normally, I think...
The company owner testified... He showed that he is an informed
businessman. I would tend to think that normally, during financially difficult
times, the reigns would be tightened, that the manager at fault would have his
wings clipped, not be given more freedom.
I do not have to decide on this issue, but one of the conclusions
I draw from these facts is that they entered into a new contract, which they
called a "management contract" but it was the same employment contract
that existed before and after since he remained an employee of the company in
question and was an employee in a management position.
He or the owner could also call Ms. Bellavance back and there
could have been a relationship of subordination either with her husband or the
accountant working at the time; Ms. Bellavance did in fact continue working
during the period in question.
As for the company owner, I asked a few questions about the
undeclared income and he replied, [translation]
"I am not aware, I didn't know, I was not always there." He did not
admit to it.
I asked him about the “pocket bikes” and undeclared income and: [translation] "But I am not there,
I don't know."
However, he knew that the
company was not running well, so there, I am a little...I do not give much
credibility to his testimony.
As a result, my decision will be based on the facts and Ms.
Bellavance's testimony, which was frank...
The issue before the court is one of believing there was an
employment relationship during the period in question, and I find that there
was insurable employment during that period.
I will not make a decision on the other issue because it is not a
question that was put before me.
Thank you.
Translation certified true
on this 11th day of August 2009.
Elizabeth Tan, Translator
CITATION: 2009 TCC 296
COURT
FILE NO.: 2006-3021(EI)
STYLE OF CAUSE: LINDA BELLAVANCE v.
THE
MINISTER OF NATIONAL REVENUE
PLACE
OF HEARING: Moncton, New Brunswick
DATE
OF HEARING: September 9,
2008
REASONS
FOR JUDGMENT: The Honourable Justice Robert
Hogan
DATE
OF REASONS FOR JUDGMENT
PRONOUNCED
ORALLY: September 9, 2008
DATE
OF JUDGMENT: September 28,
2008
DATE
OF AMENDED REASONS
FOR
JUDGMENT: June 2, 2009
APPEARANCES:
|
For
the appellant:
|
The appellant herself
|
|
|
|
|
Counsel for the respondent:
|
Marie-Claude
Landry
|
COUNSEL OF RECORD:
For
the appellant:
Name:
Firm:
For the respondent: John
H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
Email this Content