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Docket: 2002-365(EI)
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BETWEEN:
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CONSTRUCTION NORRACH INC.,
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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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____________________________________________________________________
Appeal heard November 24, 2003, at Montreal, Quebec
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Before: The
Honourable Justice P. R. Dussault
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Appearances:
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Counsel for the
Appellant:
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Virginie
Falardeau
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Counsel for the
Respondent:
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Emmanuelle
Faulkner
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____________________________________________________________________
JUDGMENT
The
appeal under subsection 103(1) of the Employment Insurance Act regarding
a November 8, 2001, decision by the Minister of National Revenue (the
Minister), is allowed and the Minister's decision is amended to take into
consideration that Gérald Léger's insurable hours and insurable earnings while
working for the Appellant from May 28 to July 29, 2000, are as indicated on the
record of employment the Appellant issued on July 14, 2000.
Signed at Ottawa,
Canada, this 28th day of November 2003.
Dussault
J.
Translation
certified true
on this 26th day of
February 2008.
Elizabeth Tan,
Translator
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Citation: 2003TCC880
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Date: 20031128
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Docket: 2002-365(EI)
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BETWEEN:
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CONSTRUCTION NORRACH INC.,
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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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[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Dussault J.
[1] This
is an appeal from a determination by the Minister of National Revenue (the
Minister) for the insurable hours and insurable earnings of Gérald Léger, while
working for the Appellant, "Construction Norrrach Inc.," between
May 28 and July 29, 2000.
[2] The
Minister determined that Gérald Léger's insurable hours and insurable earnings
were, respectively, 186.2 and $6,702.23 during this period.
[3] In
rendering his decision, the Minister relied on the following presumptions of
fact, found at subparagraphs 5(a) to (k) of the Reply to the Notice of Appeal:
[translation]
(a) The Appellant
is a construction contractor.
(b) The Worker is
a painter.
(c) In 2000, the
Worker provided services to the Appellant.
(d) The Worker
lived in a trailer the Appellant provided for him on the worksite.
(e) The Appellant
issued a record of employment dated July 14, 2000, indicating the Worker
had worked 58 hours between June 28 and July 14, 2000, earning of $1,304.13.
(f) In fact, the
Worker had worked from May 28 to July 29, 2000.
(g) During this
period, he worked 186.2 hours.
(h) The Worker
filed a claim for unpaid wages with the Commission de la construction du Québec
(C.C.Q.).
(i) According to
this claim, the Worker was to be compensated for 186.2 hours of work, for
$5,945.85.
(j) According to
this claim, the Worker should also have received $582.72 for paid leave and
$173.76 as layoff notice.
(k) According to
this claim, the Worker's total insurable earnings should have been
$6,702.23 instead of $1,304.13 as indicated on the record of
employment.
[4] The
Appellant denies subparagraphs (f), (g), (i), (j) and (k) as written.
[5] The
Respondent relies on section 9.2 of the Employment Insurance Regulations and
on subsection 2(2) of the Insurable Earnings and Collection of Premiums
Regulations to ask that the appeal be dismissed on the simple ground that
Mr. Léger actually filed a claim for unpaid wages with the Commission de la
Construction du Québec ("C.C.Q.") and the assessment made by the
Minister is valid to the extent that it takes this claim into consideration.
[6] The
Appellant claims that it paid Mr. Léger all the
earnings for his hours of work while at its service during the period in
question, and this was confirmed by the Court of Québec in a judgment rendered
April 10, 2003, dismissing the C.C.Q. claim filed against the Appellant on
behalf of Mr. Léger (Exhibit A-2).
[7] As
a result, the Appellant relies on the application of section 9.1 of the Employment
Insurance Regulations. It considers that section 9.2 does not apply in this
case because Mr. Léger received the full compensation
to which he had a right.
[8] The
parties relied on the following provisions from the regulations:
Employment Insurance
Regulations
9.1 Where a
person's earnings are paid on an hourly basis, the person is considered to have
worked in insurable employment for the number of hours that the person actually
worked and for which the person was remunerated
9.2 Subject to
section 10, where a person's earnings or a portion of a person's earnings for a
period of insurable employment remains unpaid for the reasons described in
subsection 2(2) of the Insurable Earnings and Collection of Premiums
Regulations, the person is deemed to have worked in insurable employment for
the number of hours that the person actually worked in the period, whether or
not the person was remunerated.
Insurable Earnings and
Collection of Premiums Regulations
2(2) For the purposes of this Part,
the total amount of earnings that an insured person has from insurable
employment includes the portion of any amount of such earnings that remains
unpaid because of the employer’s bankruptcy, receivership, impending
receivership or non-payment of remuneration for which the person has filed a
complaint with the federal or provincial labour authorities, except for any
unpaid amount that is in respect of overtime or that would have been paid by
reason of termination of the employment.
[9] Francine Brodeur
and Alain Charron testified for the Appellant. They both explained
the way the hours of work for Mr. Léger, hired as a painter, were calculated
and verified by them and also by the work site foreman during the period in
question. Hours of work are recorded in the Appellant's books and indicated on
the record of employment completed by the Appellant. The cheques issued as
payment were also submitted (see Exhibit A-1 in a bundle).
[10] Nobody testified for the Respondent. During Ms. Brodeur's testimony,
counsel for the Respondent merely acknowledged that Mr. Léger had filed a claim
with the C.C.Q.
[11] The Respondent's position during the hearing is without merit and
unjustified in the circumstances.
[12] Even if subsection 2(2) of the Insurable Earnings and Collection of
Premiums Regulations was not drafted the best way, to claim that section
9.2 of the Employment Insurance Regulations applies, it still
must first be established that "… a person's earnings or a portion of a
person's earnings for a period of insurable employment remains unpaid…" In
law, it is unthinkable to consider that a simple complaint by a worker to a
federal or provincial body could constitute evidence that earnings were not
paid in whole or in part.
[13] The Minister relied on the assumption of fact that part of Mr. Léger's
earnings was not paid. The evidence submitted by the Appellant shows the
contrary.
[14] First, the claim for unpaid wages filed by Mr. Léger to the C.C.Q. and
subsequently taken to the Court of Québec by the C.C.Q., was completely
nonsuited. The Respondent did not submit any evidence that this claim had any
merit whatsoever. Particularly, Mr. Léger was never called to testify. Finally,
the Appellant had Ms. Brodeur and Mr. Charron testify that the earnings Mr.
Léger might have claimed, considering the hours of work during the period in
question, were paid in full. The testimony of these witnesses was not
contradicted and is believable.
[15] There is no need to say more.
[16] As a result of the above, the appeal is allowed and the Minister's
decision is amended to take into consideration that the insurable hours and
insurable earnings of Gérald Léger, while working for the Appellant
between May 28 and July 29, 2000, are as indicated on the record of employment
issued by the Appellant on July 14, 2000.
Signed at Ottawa, Canada this 28th day of
November 2003.
Dussault
J.
Translation
certified true
on this 26th day of
February 2009.
Elizabeth Tan, Translator
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