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Citation: 2003TCC592
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Date: 20030911
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Docket: 2000-2295(CPP)
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BETWEEN:
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C-MAR SERVICES (CANADA) LTD.,
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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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____________________________________________________________________
Appearances
Agent for the Appellant: Denis
Mair
Counsel for the
Respondent: Cecil Woon
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered
orally from the Bench at Halifax, Nova Scotia, on
Tuesday,
March 26, 2002 and revised as to style and syntax at
Ottawa,
Canada on September 11, 2003.)
Margeson,
J.T.C.C.
[1] The position of
the Appellant is that this is not pensionable employment because it is not
pensionable employment under the Canada Pension Plan —Regulations.
Regulation 18(1) states:
Where an employer operating in
Canada employs persons in international transportation on a ship that is
operated under an agreement entered into in Canada with the crew, pensionable
employment includes
(a) when that ship is engaged on a foreign voyage or
home‑trade voyage, the employment thereon of any person who has a place
of domicile in Canada as defined in subsection (3); and …
[2] The Court accepts the argument that Regulation 18
really does not apply here because the terms and conditions that were described
in the evidence do not make it applicable. Therefore he was not in pensionable
employment due to Regulation 18.
[3] The Respondent's position is that even though
Regulation 18(1) does not apply, the worker was in pensionable employment under
the provisions of Regulation 16(1). This decision is contrary to decisions
given by the Minister on other occasions and the Appellant is mystified by the
Minister's decision in this case. Regulation 16(1) states:
— Pensionable employment includes
employment outside Canada (except employment in international transportation) that
would be pensionable employment if it were in Canada, if the employee
employed therein
(underlining is mine)
(a) ordinarily reports for work at an establishment
in Canada of his employer;
(b) is resident in Canada and is paid
at or from an establishment in Canada of his employer;
(c) is an employee, other than an
employee engaged locally outside Canada,
(i)
of Her Majesty
in right of Canada, or
(ii)
of Her Majesty
in right of that province (if employment by Her Majesty in right of that
province has been included in pensionable employment by regulation in
accordance with paragraph 7(1)(e) of the Act),
who was resident in Canada
immediately prior to becoming so employed outside Canada or who is in receipt
of a representation allowance;
(d) performs services in a country
other than Canada under an international development assistance program of the
Government of Canada prescribed as such pursuant to paragraph 250(1)(d) of the Income Tax Act and was resident in Canada at any time in the three-month
period preceding the day on which such services commenced;
(e) is the spouse of a person described
in paragraph (c) or (d) or of a person described in paragraph 250(1)(b) of the Income Tax Act and
(i) is living with that person,
(ii) is an employee of Her Majesty in
right of Canada or of Her Majesty in right of a province (the government of
which has entered into an agreement referred to in paragraph 7(1)(e) of the Act), and
(iii) was resident in Canada at any time
before becoming so employed outside Canada;
(f) is an employee of Her Majesty in
right of Canada who is engaged locally outside Canada and if the President of
the Treasury Board signifies to the Minister that he wishes the employment of
such employee to be included in pensionable employment; or
(g) is an employee of Her Majesty in
right of a province (the government of which has entered into an agreement
referred to in paragraph 7(1)(e) of the Act), who is engaged locally outside Canada and if the government
of the province signifies to the Minister that it wishes the employment of such
employee to be included in pensionable employment.
[5] There is no doubt on the evidence that the Appellant
was resident in Canada and that he was paid from an establishment in Canada of
his employer. Significantly, the section says that it includes employment
outside Canada that would be pensionable employment if it were in Canada.
[6] There was nothing in the evidence that would indicate
to this Court, on the balance of probabilities, that this would have been
pensionable employment if it were in Canada. Had the Minister presumed such a
fact in the Reply to the Notice of Appeal, and had there been no contrary
evidence, that presumption may have prevailed. The Court is satisfied it does
not have the evidence before it that would entitle it to conclude that this
employment would have been pensionable employment had it been in Canada.
[7] There may be many reasons why employment, even by
workers, is not pensionable employment. The burden is on the Minister under the
circumstances to satisfy the Court on this point.
[8] The Minister quoted Regulation 16, but he did
not say that it was pensionable employment in Canada and he did not indicate
why it would have been pensionable employment in Canada.
[9] The Appellant has satisfied the Court that this was
not pensionable employment.
[10] The appeal pursuant to section 28 of the Canada Pension Plan
is allowed and the decision of the Minister of National Revenue, on the appeal
made to him under section 27 of that Plan, is vacated on the basis that
the worker, Mark Carew, was not engaged in pensionable employment during
the period from November 28, 1999 to January 12, 2000.
Signed at Ottawa, Canada, this 11th day of
September 2003.
Margeson,
J.
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