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Citation: 2004TCC359
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Date: 20040520
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Docket: 2003-2939(EI)
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BETWEEN:
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HERSHEL NEUBERGER,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Savoie, D.J.
[1] This appeal was heard in Montreal,
Quebec, on February 27, 2004.
[2] This is an appeal from a decision
made by the Minister of National Revenue (the
"Minister"), wherein he informed the Appellant, at his
request, that employment insurance premiums were payable because
during the disputed period, from January 1st, 2002 to April 23rd,
2003, he was engaged under a contract of service and therefore,
he was an employee of the Payer, Yeshiva Gedola the School
of Higher Learning of Montreal.
[3] In reaching his decision, the
Minister relied on the following assumptions of fact:
a) the Payer
was incorporated on December 15, 1967; (admitted)
b) the Payer
was operating a school; (admitted)
c) the
Appellant was engaged by the Payer as a researcher and as a
professor; (admitted)
d) the
Appellant was an American citizen; (admitted)
e) the
Appellant had an employment authorization from Immigration
Canada; (admitted)
f) the
authorization is valid until September 1st, 2005 for employment
with the Payer only; (admitted)
g) the
Appellant's tasks were to teach Talmudic Law, to guide
students and to carry out researches in the School's
Library; (admitted)
h) the
Appellant was paid $1,700 gross per week by the Payer;
(admitted)
i) the
Appellant received his salary by cheque every two weeks;
(admitted)
j) the
Appellant worked in the premises of the Payer,
6155 Deacon road, in Montreal; (admitted)
k) the Payer
established and controlled the hours of work of the
Appellant; (admitted)
l) the
Appellant worked approximately 31 hours per week for the
Payer; (admitted)
m) the Appellant had
to inform the Payer of his absence; (admitted)
n) the
Appellant used the Payer's premises, material and equipment
in performing his tasks; (admitted)
o) the
Appellant had no risk of losses or chance of profits.
(admitted)
[4] The Appellant has admitted all the
assumptions of fact of the Minister. The position of the
Appellant can be found in his two letters which were produced by
the Minister. His letter of June 25, 2003 states as follows:
To Whom It May Concern:
The question of whether Hershel Neuberger, must pay Employment
Insurance, was based upon the fact that he cannot receive
the benefits, since he is not Canadian, he only has an Employment
Visa.
His employment visa only allows him to work at the institution he
is currently employed.
Now since he cannot receive benefits if unemployed, he
should not have to pay the premium either.
Kindly, clarify this issue.
Respectfully,
Hershel Neuberger
[5] His second letter, dated August
13, 2003 reads as follows:
To whom it may concern
I would like to appeal the ruling stating that I have to pay
Employment Insurance.
My reason is as follows, since my Employment visa allows me to
work only for one company, namely Yeshiva Gedola, therefore
should I become unemployed, I would not be paid any benefits,
since I cannot look for any other employment.
I feel this issue has not been addressed. This issue is relevant
from Nov 2001 - until present date. Included in this letter is a
copy of my employment visa.
Sincerely,
Hershel Neuberger
...
[6] A copy of the Appellant's Visa
referred to by the Appellant in the previous letter was attached
to his letter of August 13, 2003. The Visa was issued on
September 30, 2001 and the stated date of expiration is
September 1, 2005. Some of the terms and conditions of the Visa
are as follows:
1. Prohibited
from attending any educational institution and taking any
academic, professional or vocational training course.
2. Not
authorized to work in any occupation other than stated.
3. Not
authorized to work for any employer other than stated.
4. Not
authorized to work in any location other than stated.
[7] At the hearing, the Appellant
conceded all the facts and assumptions of fact set forth by the
Minister. He also agreed with the Minister saying that "the
employment appears to be insurable".
[8] He does, however, take issue with
the fairness of the provision under the Employment Insurance
Act (the "Act") which labels his employment
insurable and the collection of premiums mandatory. His challenge
is based on the fact that if he loses his employment, he will not
qualify for benefits because he will not be available for work by
reason of the restrictive nature of his Visa.
[9] Although the Appellant's
position is logical and commendable from his standpoint, the
Minister's decision, on the facts before him under
paragraphs 5(1)(a) and (b) of the Act,
is inescapable. The relevant paragraphs read as follows:
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;
(b)
employment in Canada as described in paragraph (a) by Her
Majesty in right of Canada;
...
[10] Granting that the Appellant's
arguments are not without empathetic value, and the Court has
been attentive to his expressed compelling reasons to be
supportive to his predicament, the interpretation of the above
paragraphs of the Act by the courts leaves no room for any
support to his position. The Appellant has failed to demonstrate
any justification for this Court's interference with the
decision of the Minister.
[11] Consequently, the appeal is dismissed
and the Minister's decision is confirmed.
Signed at Grand-Barachois, New Brunswick, this 20th day of May
2004.
Savoie, D.J.
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