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Citation: 2003TCC652
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Date: 20030922
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Docket: 2003-374(EI)
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BETWEEN:
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SHELLY MERCER,
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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
Cain, D.J.
[1] The Appellant Shelly Mercer (the
"Worker") appeals the decision of the Respondent, dated
January 17, 2003, that she was employed by John Griffin (the
"Payor") by a contract of service from May 13, 2001 to
June 9, 2001 and from June 7, 2001 to June 27, 2001 (the
"periods in question") but that she was not engaged in
insurable employment as she and the Payor were not dealing with
each other at arm's length pursuant to paragraph
5(2)(i) of the Employment Insurance Act (the
Act").
[2] The appeal was heard at St.
John's, Newfoundland on May 27, 2003. At the conclusion of
the hearing the Court reserved judgment.
[3] The Respondent based his decision
on the following assumptions of fact:
a) the Payor
is the Appellant's spouse;
b) the Payor
owns a 34-foot long liner and a 21-foot speed boat which he uses
to fish for lobster, lump fish, flounder and cod;
c) the
Appellant's duties were to pick out the fish from the nets,
wash the pans and put ice on the fish;
d) the
Appellant did not have a species fishing licence;
e) the
Appellant had an apprentice licence;
f) the
Appellant co-singed a loan with the Payor in respect of the long
liner;
g) the
Appellant did not own the boat and gear;
h) the
Appellant did not share in the fishing expenses and did not
assume a risk of loss;
i) the
Appellant had no control over any of the fishing activities;
j) the
Appellant was employed by the Payor pursuant to a contract of
service;
k) the Payor
sold lobster and lumpfish to H. Hopkins Ltd. and sold codfish to
Woodman's Sea Products Ltd.;
l) for
the periods in question the Appellant received a record of
employment ("ROE") from H. Hopkins Ltd. reporting the
Appellant's earnings as follows:
Fishing
trips
Share of earnings
May 13 to May 19,
2001
$1,705.77
90%
May 20 to May 26,
2001
$
761.31
90%
May 27 to June 2,
2001
$
308.79
90%
June 3 to June 9,
2001
$
299.52
90%
m) for the periods
in question the Appellant also received an ROE from Woodman's
Sea Products Ltd. reporting the Appellant's earnings as
follows:
Fishing
trips
Share of earnings
June 7 to June 9,
2001
$
721.37
90%
June 11 to June 16,
2001
$3,579.04
80%
June 17 to June 23,
2001
$2,882.70
80%
June 25 to June 27,
2001
$
392.53
20%
n) the
Appellant decided in which fishing trips she would
participate;
o) the Payor
reported a fishing loss of $12,040;
p) the
Appellant's share of the catches as reported was excessive
for the duties performed;
q) the
Appellant is related to the Payor within the meaning of the
Income Tax Act;
r) the
Appellant was not dealing with the Payor at arm's length;
s) having
regard to all the circumstances of the employment, including the
remuneration paid, the terms and conditions, the duration and the
nature and importance of the work performed, it is not reasonable
to conclude that the Appellant and the Payor would have entered
into a substantially similar contract of employment if they had
been dealing with each other at arm's length.
[4] The Appellant admitted only
assumptions a), d) to f) inclusive, l) to n) inclusive, and
q).
[5] The Court makes the following
finding of fact.
[6] The Worker and the Payor are
common-law spouses. On or about May 13, 2001, as self-employed
fishers, they entered into an agreement to fish for various
species, which agreement was in effect during the periods in
question.
[7] In a Letter Of Offer dated October
12, 2000 (Exhibit A-1) the Avalon West Community Business
Development Corporation loaned to the Payor and Worker $50,000 to
be used for the construction and purchase of a 34'11"
fishing vessel (the "long liner") and they executed a
Guarantee And Postponement Of Claim agreement to the Corporation
jointly and severally agreeing to repay the loan. The long liner
was subsequently constructed and delivered to the parties. The
evidence establishes that the long liner was owned jointly by the
Appellant and the Payor notwithstanding that the Payor stated
that he owned the boat (see Exhibit R-4 sixth question from the
top).
[8] The Appellant had an apprentice
licence but not a species fishing licence. 99% of the duties of
the Payor and the Worker while fishing were the same. The Worker
described her duties as follows:
1. Preparation of lunch, gathering bait, putting ice in
boat and procuring fuel if needed;
2. When fishing cod, cleaning and icing the fish;
3. When fishing lobster, cutting up the bait;
4. When fishing lump roe, emptying the spawn and icing it
(See Exhibit R-3, last questions pages 2 and 3).
[9] The Payor and the Worker embarked
on fishing trips from May 13, 2001 to June 9, 2001, both dates
inclusive, being part of the periods in question. The several
catches were sold to H. Hopkins Ltd. of Arnold's Cove
Newfoundland/Labrador.
[10] The Record of Employment issued by that
Company to the Worker and the support documents attached thereto
provide the following information (see Exhibit R-1). The value of
the several catches was $3,391.43. For $2,571.43 of those
earnings the Worker received credit for 90% thereof. For the
balance of $820 the Worker received 100%. The total insurable
earnings of the Worker were reported at $3,075.39. From this
amount $849.79 representing expenses and advances associated with
the several catches and due H. Hopkins Ltd. were deducted from
the Worker's payments and credited to an account of the
Payor. The sum of $500 that had been advanced to the Payor prior
to the commencement of this fishery was deducted from the
Worker's share. In addition, $69.20 for employment insurance
premiums and $52.00 for union dues were deducted from the
Worker's share. In summary the Worker received in hand a
total of $1,504.44 being total insurable earnings of $3,075.39
less expenses, advances, employment insurance premiums and union
dues. The Payor received $257.12.
[11] No Record of Employment was submitted
in evidence for the fishery conducted from June 7 to June 9,
2001, June 11 to June 23, 2001 inclusive and from June 25 to June
27, 2001. However, from the information contained in subparagraph
8 m) of the Reply to the Notice of Appeal, which the Worker
admitted, the Court has calculated that the total value of the
several catches was $10,801.15. The total insurable earnings of
the Worker were $7,585.64. Apparently no expenses were incurred
or advances made by the buyer Woodsman's Sea Products Ltd.
since all of the equipment used by the Payor and the Worker were
owned by them and they shared the cost of the fuel, the amount of
which was not disclosed by the evidence.
[12] The total insurable earnings of the
Worker for the periods in question were $10,661.03 less the
amount of gas paid for by the Worker which was not disclosed in
the evidence.
DECISION
[13] During the hearing, the Court raised
the question of whether the employment of the Worker was excluded
employment under the Act, since the arrangement made by
the Worker and the Payor to split the share of the catch
unevenly, without consideration of the actual work performed,
created a non-arm's length relationship. The Court
referred the parties to paragraph 5(2)(i) of the
Act and section 2 of the Fishing Regulations.
Following the hearing the Court requested and received
submissions from the parties on this issue.
[14] Non-arm's length relationships are
ones in which there are the existence of a common mind which
directs the bargaining for both parties to the transaction or
that the parties to the transaction are acting in concert without
separate interests or that either party to a transaction did or
had the power to influence or exert control over the other and
that the dealings of the parties are not consistent with the
object and spirit of the provisions of the law and they do not
demonstrate a fair participation in the ordinary operation of the
economic forces of the market place. (See Attorney General
of Canada v. Rousselle et al., 124 N.R. 339.)
[15] Paragraph 5(2)(i) of the
Act reads as follows:
(2) Excluded employment - insurable employment does not
include
(i) employment if the employer and employee are
not dealing with each other at arm's length.
[16] Section 153 of the Act reads as
follows:
153.(1) Regulations - Notwithstanding anything in this Act,
the Commission may, with the approval of the Governor in Council,
make such regulations as it deems necessary respecting the
establishment and operation of a scheme of employment insurance
for self-employed persons engaged in fishing, including
regulations
(a) including
as a self-employed person engaged in fishing any person engaged
in an activity or occupation related to or incidental to fishing;
and
(b) including
as an employer of a self-employed person engaged in fishing any
person with whom the self-employed person enters into a
contractual or other commercial relationship in respect of their
occupation as a self-employed person engaged in fishing.
(2) Scheme may be different - The scheme established by the
regulations may, with respect to any matter, be different from
the provisions of this Act relating to that matter.
[17] Section 2 of the Regulations
reads as follows:
General - A person who is a fisher shall be included as an
insured person and, subject to these Regulations, the Act and any
regulations made under the Act apply to that person with such
modifications as the circumstances require.
[18] If the application of section 2 of the
Fishing Regulations permits one to modify paragraph
5(2)(i) of the Act by substituting the words
"self-employed persons engaged in fishing" for the
words "employer and employee", then the employment
would not be insurable.
[19] The evidence of the Worker was that 99%
of the duties of she and the Payor were the same. Presumably the
1% would involve the occasional heavy lifting which a man would
do. That being the case, the Worker's share of the catches
was well in excess with what two self-employed persons operating
at arm's length would have bargained for. And the Worker was
candid about how the share arrangement was arrived at. They
agreed to split the catch on an unequal basis without
consideration of the actual work involved performed by each. No
explanation was given why such an allocation was made or that
while the Worker and the Payor fished together the latter claimed
an unequal portion of the catch. Had the Worker actually done
work equal to the claimed portion of the catch, then that share
of the catch would have been insurable earnings, provided
evidence was led to support that fact.
[20] Had the Payor and the Worker been in
such a relationship governed by the Employment Insurance
Act, other than for fishers, and the facts and terms of the
remuneration were the same, that relationship would have been
adjudged to be either a contract of service but one of
non-arm's length or a contract for services. In either case
the employment would not have been insurable.
[21] Using the formula set out in the
Act and Regulations, the Worker earned $10,661.03
during her qualifying period. Assuming the unemployment rate to
be in excess of 13.1% in the area of Newfoundland/Labrador where
the Worker fished, the divisor would be 14 giving her weekly
insurable earnings of $761.50. Her benefit rate would be $761.50
X 55%=$418.82. She would receive the maximum benefit of $413.
[22] The Worker testified that her duties
and the Payor's were 99% the same. That would dictate that
they each contributed one half of the effort required to land the
catch. Such a relationship would also dictate a 50/50 split of
the expenses. Calculated roughly, the Worker would have received
approximately 79% of the share of the catches and the Payor 21%
during the periods in question. The catches total $14,192.58. The
Worker's share at 50% would have been $7,096.29. Her share of
the expenses and advances would have been 50% of $1,349.79 or
$674.89. Her fishing earnings would have been $5,746.50.
[23] Using the above formula, her weekly
insurance earnings ($7,096.29 divided by 14) would have been
$505.16 and her benefit (X 55%) $277.83. While the Worker
testified that she and the Payor varied the allocation of the
shares of the catches to give the Payor a larger percentage, no
evidence was led to show that she actually fished at any other
time, or if she did, what share allocations were made at those
times.
[24] While there may be some slight
variables not taken into consideration in the above calculations,
they at least show that the share agreement between the Payor and
the Worker resulted in a substantial increase in employment
insurance benefit. Since no explanation was offered for the
unequal share distribution, one concludes that it was designed to
obtain for the Worker, the maximum benefits under the Act
in the shortest period of time.
[25] The thrust of the submission of counsel
for the Worker was as follows:
...Second, Section 2 of the Regulations clearly gives
paramountcy to the Fishing Regulations. It states, "subject
to these Regulations". We would read that phrase as
signalling a parliamentary intention that the Act and any
regulations made under the Act cannot apply so as to
"undo" the Fishing Regulations where they apply. In our
view, this would be the result were this Court to hold that one
cannot avail of an earnings based system where one's earnings
for a particular period are greater (or less) than you would have
received over that period had you been in an arm's length
relationship with your business partner. These particular
business partners would regularly alternate as to who took the
greater percentage. It is quite noteworthy that S. 5 of the
Fishing Regulations which specifically deals with the
Determination of Earnings of a fisher provides a complete
scheme for doing so. There is nothing to say that the share
arrangement must be that which persons at arm's length would
arrive at. Instead, Parliament has provided that whatever the
share arrangement is, deductions must be made from the amount
paid or payable to the fisher is accordance with subsections (2)
and (3) for the purposes of determining the earnings. To impose
an arm's length analysis in such a circumstance by applying
S. 5(2)(i) of the Act and reading into it "self
employed persons engaged in fishing" would negate the scheme
for determining earnings under Section 5 of the Regulations.
That, it is submitted, cannot be the proper legal result given
the Act's application is expressly subject to the Fishing
Regulations. Section 5(2)(i) is not applicable.
[26] Counsel for the Worker further argues
that to substitute the words "self-employed persons
engaged in fishing" for the words "employer and
employee" in paragraph 5(2)(i) of the Act by
the application of section 2 of the Fishing Regulations is
to radically alter section 5 of the Fishing Regulations
and to stretch the meaning of the word "modifications"
beyond that intended by Parliament. It would radically change the
Determination of Earnings rules in section 5 of the Fishing
Regulations. In addition he argues there is no mention of
arm's length considerations in the Fishing Regulations.
[27] The Respondent's position was that
the Worker was not a self-employed person but an employee of the
Payor under a contract of service and that the relationship was
not one of arm's length and therefore the employment was not
insurable. If the Court finds that the Payor and the Worker are
self-employed persons, the Respondent submitted as follows:
By virtue of section 2 of the Fishing Regulations, the
EIA and any regulations made under the EIA apply to
fishers with such modifications as the circumstances require. It
is the Respondent's position that subsection 5(2) of the
EIA applies to fishers. However, subsection 5(2) and any
other provision of the EIA is modified for purposes of
reviewing the employment of a fisher only to the extent required.
The employer of a fisher is determined pursuant to section 3 of
the Fishing Regulations. The Respondent submits that there
is no requirement to redefine the term employer for purposes of
subsection 5(2) to be anyone other than the employer as defined
in section 3 of the Fishing Regulations.
In the present case the Appellant's employer was the
buyer. There is no indication that the Appellant was not at
arm's length with the buyer. The Appellant's spouse and
fishing partner was not her employer pursuant to section 3 of the
Fishing Regulations. Consequently, subsection 5(2) of the
EIA would not operate to exclude the Appellant's
employment from insurable employment on the basis of the terms of
her working relationship with her spouse.
[28] The Fishing Regulations create
several types of employers. In this case the employers were H.
Hopkins Ltd. and Woodman's Sea Products Ltd. because the
Payor and the Worker agreed to sell their catch to those
Companies. If the parties had sold through an agent, then the
agent would have been the employer.
[29] The relationship of employer in this
case as it relates to both the Payor and the Worker was a
relationship created by statute and differs from the usual
employment relationship. Under the Fishing Regulations, H.
Hopkins Ltd. and Woodman's Sea Products Ltd. are the buyers
of the catch. These Companies had nothing to do with the share
arrangement agreed to by the Worker and the Payor and nothing in
the Fishing Regulations gives them the power to question
or vary the share arrangement. It appears obvious from a reading
of section 3 of the Fishing Regulations, Determination of
Employer, that the employer is the buyer of the catch, the
collector of employment insurance premiums on behalf of the
Commission, maintainer of records of the all transactions and
ultimately the issuer of records of employment from which
benefits are calculated. Presumably the Fishing
Regulations were structured in this manner to ensure that an
independent third party confirmed the value of the catch and thus
the insurable earnings. Accordingly the employer mentioned in
paragraph 5(2)(i) of the Act bears no resemblance
to the employer contemplated by section 3 of the Fishing
Regulations.
[30] The key word is
"modifications" in section 2 and what it means in the
context of the Fishing Regulations and the Employment
Insurance Act. But before dealing with that issue, it is
important to review what the employment insurance scheme is and
what it is not.
[31] In Tanguay et al. v. Unemployment
Insurance Commission et al., 68 N.R. 154, several
employees left their employment for the purpose of turning their
jobs over to younger employees. The Commission found that they
had left their employment without just cause within the meaning
of section 41 of the then Unemployment Insurance Act and
were disqualified from receiving benefits. The Federal Court of
Appeal cited with approval the decision of the English Court of
Appeal in Social Security Act, 1975 in Crewe et al. v.
Social Security Commissioner [1982] 2 All E.R. 745 which case
raised exactly the same problem as Tanguay. Donaldson,
L.J. said as follows:
In my judgment it is crucial to reaching a decision on this
appeal to remember that this is an insurance scheme, however it
may be funded, and that it is an insurance against unemployment.
It is of the essence of insurance that the assured shall not
deliberately create or increase the risk...
[32] The key word is "risk" and
the Act and the Regulations are replete with
safeguards to protect the employment insurance fund from
employment that is specifically excluded. Clearly by allowing
self-employed fishers to either manipulate the system or enter
into non-arm's length contractual relationships to create
greater benefits over a shorter period of employment is creating
risk to the fund not contemplated by the Act.
[33] The Worker argues that any arrangement
entered into by two or more self-employed persons is
acceptable under the Regulations and the arm's length
standard that applies to a normal employer/employee relationship
should have no application. In other words, self-employed persons
can manipulate the system and create greater risk to the fund by
entering into relationships that if entered into between an
employer and a non-fishing employee would exclude the employment
from the benefits of the Act.
[34] The word "modifications" in
section 5 of the Fishing Regulations is designed to meld
the special concept of insured employment conferred on fishers
with the other provisions of the Act and particularly to
prevent the application of any provision of the Act or any
other regulations thereunder from defeating the scheme of the
Fishing Regulations.
[35] There is a paucity of jurisprudence in
respect to the use of the word "modifications". Counsel
referred none to the Court and the only cases that the Court
could find were cases involving collective agreements.
[36] In Re Atlantic Sugar Division of
Atlantic Consolidated Foods Ltd. and Local 443, Bakery and
Confectionery Workers International Union of America,
56 D.L.R. (3d) 474, a decision of the New Brunswick Court of
Appeal, the collective agreement between the parties did not
provide for final settlement by arbitration of differences
between the parties as required by section 56(1) of the
Industrial Relations Act. On an application by the union,
the Board found the provisions of the agreement to be inadequate
and substituted the statutory provision respecting arbitration.
Section 56(4) of the Act empowered it to determine,
inter alia, that the arbitration provision in the
collective agreement was inadequate and "to modify" the
same so long as it did not conflict with 56(1). Section 56(2) of
the Act provided for the statutory arbitration "where
the collective agreement does not contain one".
[37] On application to quash the decision of
the Board, the application was granted. Hughes C.J.N.B. writing
for the majority said at page 80:
The only remaining question is whether, as contended by
counsel for the Employer, the Board exceeded its powers by
ordering that the provisions of the collective agreement "be
amended to include the provisions of section 56(2) of the
Industrial Relations Act".
The Board's power was "to modify any part of the
arbitration provisions in the collective bargaining agreement ...
where, in the opinion of the Board" they are inadequate.
The Oxford English Dictionary gives as one meaning to
"modify", "to make partial changes in; to change
(an object) in respect of some of its qualities; to alter or vary
without radical transformation".
Webster's New English Dictionary gives as the primary
meaning of "modify" - "to change slightly or
partially in character, form, etc".
In my opinion, the Board's order did not
"modify" the provisions of the collective agreement
which the Board found to be "inadequate" but directed
the amendment of the collective agreement to include the
statutory formula set out in s. 56(2), thereby either
substituting a new arbitration provision for settlement of
differences or creating a parallel arbitration procedure
applicable to the settlement of certain differences not provided
for in the collective agreement. This in my opinion constituted
an excess of jurisdiction.
[38] In Re Miramichi Pulp and Paper Inc.
and Canadian Paperworkers Union, Local 869, 29 L.A.C. (3d)
48, a decision of the Industrial Relations Board of New
Brunswick, the issue was modifications made to work schedules in
a collective agreement pursuant to the following section:
SECTION 4
Hours of Work
4.01
Exceptional circumstances may arise which, although not
covered by the following schedule, may, in the judgment of
Management, warrant modification of the following schedules. Such
cases will be dealt with as they occur.
[39] It is not necessary to set out the
schedules and the changes made. Management not only changed the
hours of work but also eliminated special pay rates and benefits.
Suffice to say the Board found that Management had not modified
the schedules but had in fact created a whole new scheme of
work.
[40] The Board quoted from Black's Law
Dictionary 5th ed. (1979) as follows:
Modification. A change; an alteration ... which introduces new
elements into the details, or cancels some of them, but leaves
the general purpose and effect of the subject-matter intact
....
"Modification" is not exactly synonymous with
"amendment" for the former term denotes some minor
change in the substance of the thing, without reference to its
improvement or deterioration thereby, while the latter word
imports an amelioration of the thing (as by changing the
phraseology of an instrument, so as to make it more distinct or
specific) without involving the idea of any change in substance
or essence.
[41] The Board made the following comment
preceding its finding that the changes made in the schedules were
not a modification but a new schedule:
The concept of a modification to the schedules must also take
some flavour from the context ...
[42] The "context" of course is
reference to the use of the word "modification" in the
text in which it appears. In the case at bar, the text is section
2 of the Fishing Regulations and the
"flavour" sought is the retention of the
characteristic or predominant quality of the Act, an
insurance fund available to bona fide beneficiaries whose
qualification for benefits meet its standards.
[43] The suggested change to paragraph
5(2)(i) was not a change in phraseology and therefore not
an amendment. The modification merely makes the provisions of the
Act excluding employment applicable to all who seek
benefits under the Act. It does not destroy or
"undo" as suggested by counsel for the Worker,
the special nature of calculating benefits for fishers.
[44] Applying the arm's length
provisions to the share arrangement of self-employed
persons would not defeat the provisions of the Fishing
Regulations but merely bring share arrangements within the
same scrutiny as any other employment arrangements under the
Act.
[45] Counsel makes the point that no mention
is made of arm's length relationships in respect to the
Determination of Earnings under section 5 of the Fishing
Regulations. Section 35 of the Employment Insurance
Regulations governs the determination of earnings for benefit
purposes for employment other than employment under the
Fishing Regulations. Nowhere in section 35 is there any
mention of arm's length relationships or should there be.
Before earnings are determined one must firstly determine
whether the employment is insurable.
[46] Counsel for the Worker noted that the
Minister in his Reply to the Notice of Appeal and his
counsel's submissions before this Court did not take the
position that the arm's length analysis would be applicable
to the Worker were she to be found to be self-employed.
[47] Sections 103 and 104 of the Act
read as follows:
103(1) Appeal to the Tax Court of Canada - The
Commission or a person affected by a decision on an appeal to the
Minister under section 91 or 92 may appeal from the decision to
the Tax Court of Canada in accordance with the Tax Court of
Canada Act and the applicable rules of court made thereunder
within 90 days after the decision is communicated to the
Commission or the person, or within such longer time as the Court
allows on application made to it within 90 days after the
expiration of those 90 days.
104(1) Authority to decide questions - The Tax
Court of Canada and the Minister have authority to decide any
question of fact or law necessary to be decided in the course of
an appeal under section 91 or 103 or to reconsider an assessment
under section 92 and to decide whether a person may be or is
affected by the decision or assessment.
[48] In Schnurer v. Canada (Minister of
National Revenue) [1997] F.C. 545 at page 556 at paragraph
16, Chief Justice Issac explained:
...establish that in a section 70 appeal, the Tax Court must
focus on the validity of the Minister's determination, and
not on the validity of the Minister's specific reasons, or
the subsections of the Unemployment Insurance Act relied
upon, for that determination ...
Also, Justice Marceau, in Canada (Attorney General) v.
Doucet (1993), 172 N.R. 374 at paragraph 10 stated:
...It is the Minister's determination which was at issue
before the judge, and that determination was strictly that the
employment was not insurable. The judge had the power and duty to
consider any point of fact or law that had to be decided in order
for him to rule on the validity of that determination. This is
assumed by s. 70(2) of the Act ... and s.
71(1) of the Act ... so provides immediately afterwards,
and this is also the effect of the rules of judicial review and
appeal, which require that the gist of a judgment, which is all
that is directly at issue, should not be confused with the
reasons given in support of it.
Reference to s. 70 and s. 71(1) refer to the
Unemployment Insurance Act and are now s. 103 and
s. 104 of the Employment Insurance Act with minor
variations in the language.
[49] This Court is, therefore, concerned
only with the question of whether the employment of the Worker
was insurable and not the reasons given to support it or is it
bound to adopt the submissions made by counsel for the
Respondent.
[50] The Court finds that by virtue of
section 2 of the Fishing Regulations, paragraph
5(2)(i) as it relates to fishers, and in particular the
Worker, can be modified by deleting the words "employer and
employee" and substituting the words "self-employed
persons engaged in fishing" and the Court so modifies it and
applies it to the case at bar.
[51] The Court further finds that the share
agreement or agreements entered into by the Payor and the Worker
as they relate to the fishing conducted during the periods in
question violated paragraph 5(2)(i) as modified and the
employment of the Worker during the said periods was not
insurable.
[52] The appeal of the Worker is dismissed
and the decision of the Respondent is confirmed.
Signed at Rothesay, New Brunswick, this 22nd day of September
2003.
Cain, D.J.
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