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Citation: 2003TCC768
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Date: 20031118
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Dossier: 2003‑1656(EI)
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BETWEEN:
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DANIEL LARIVIÈRE,
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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
Deputy
Judge Savoie
[1] This
appeal was heard at Québec City, Quebec, on July 30, 2003.
[2] This
appeal involves the number of hours of insurable employment and insurable
earnings while the Appellant was working for Modulex Inc., "the
Payor" as understood in the Employment Insurance Act.
[3] On
April 17, 2003, the Minister of National Revenue (the "Minister")
informed the Appellant of his decision that the insurable earnings for this
employment, for the period from July 2 to October 21, 2002, totalled $20,163.90
and the insurable hours totalled 640.
[4] In
making his decision, the Minister relied on the following assumptions of fact
that the Appellant admitted or denied:
[translation]
(a) the Payor was
incorporated on August 28, 1968; (admitted)
(b) the Payor
operated a business manufacturing prefabricated houses; (admitted)
(c) the Appellant
had been hired as director of marketing and sales; (admitted)
(d) the
Appellant's tasks consisted in managing a sales team as well as selling houses
himself; (admitted with explanations)
(e) the Appellant
almost always worked at the Payor's sales office; (denied)
(f) the Payor
remunerated the Appellant on the basis of a 10% commission on the first
$600,000 of annual sales and 3% afterward; (admitted)
(g) the appellant
worked from 9:30 or 10:30 a.m. to 5:00 p.m., Monday to Friday; (denied)
(h) according to
the Payor, the Appellant worked one evening and two weekends during the period
at issue; (denied)
(i) the Payor
recorded 40 hours of work per week for the Appellant in the payroll register;
(no knowledge)
(j) during the
period at issue, the Appellant worked for the Payor for 16 weeks; (admitted)
(k) during the
period at issue, the Appellant worked 640 hours, or sixteen 40‑hour
weeks. (denied)
[5] The
evidence revealed that the Payor recorded 40 hours of work per week in the
payroll register for the Appellant. During the period at issue, the Appellant
worked for the Payor for 16 weeks.
[6] According
to data supplied by the Payor, the Appellant allegedly worked 640 hours, or
sixteen 40‑hour weeks, during the period at issue.
[7] It
was established that the Appellant's remuneration was prescribed by the
agreement between the Payor and the Appellant, entered into evidence as
Exhibit I‑1, on a commission basis. Moreover, this is admitted by
the Appellant.
[8] The
Appellant claimed that, according to his calculations, the number of hours he
allegedly worked is approximately 80 to 100 hours in addition to those entered
by the Payor.
[9] According
to him, he began his work at his home on his computer very early in the morning
and worked at the office in the evenings and weekends. According to the
evidence, a subordinate occasionally saw him at the office in the evening. In
his calculations, the Payor is willing to acknowledge that the Appellant
worked, at the most, from 10:00 a.m. to 5:00 p.m. and from 7:00 p.m. to 9:00
p.m. five days per week for a total of 40 hours. The Payor maintains that his
polling of the Appellant's colleagues does not justify this number of hours,
since he was rarely in the office on Fridays and did not arrive at the office
until late in the morning, while others answered his telephone calls. In
addition, the Payor made clear that the Appellant never took advantage of the
computer at his disposal in the adjacent offices. On this point, the Payor's
evidence was more objective, convincing and credible.
[10] The
Employment Insurance Regulations set out the following at Part I –
Unemployment Benefits – Hours of Insurable Employment – Methods of
Determination:
10.(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.
[11] This appeal then involves only the number of insurable hours.
[12] However, this was established by the Minister who relied on
information provided by the Payor, in applying subsection 10.(1) of the Employment
Insurance regulations.
[13] Since the assumption prescribed at subsection 10.(1) was not refuted
by the Appellant, this Court must uphold the Minister's decision to the effect
that the number of insurable hours during the period at issue is 640; the
insurable earnings amount to $20,163.90.
[14] Consequently, the appeal is dismissed and the
Minister's decision is upheld.
Signed at Grand‑Barachois, New
Brunswick, this 18th day of November 2003.
Savoie, D.J.
Translation certified true
on this 26th
day of April 2004.
Sharon
Moren, Translator
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