Ferraillage Provincial Inc. c. M.N.R, docket 2001-682-EI

[OFFICIAL ENGLISH TRANSLATION]

2001-682(EI)

BETWEEN:

FERRAILLAGE PROVINCIAL INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeal heard on October 29, 2001, at Québec, Quebec, by

the Honourable Deputy Judge A. J. Lesage

Appearances

Agent for the Appellant:             Guy Verreault

For the Respondent:                  Philippe Dupuis (Student-at-Law)

JUDGMENT

          The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.

Signed at Sillery, Quebec, this 10th day of December 2001.

"A. J. Lesage"

D.J.T.C.C.

Translation certified true

on this 12^th day of March 2003.

Sophie Debbané, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20011210

Docket: 2001-682(EI)

BETWEEN:

FERRAILLAGE PROVINCIAL INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

REASONS FOR JUDGMENT

Lesage, D.J.T.C.C.

[1]      This appeal was heard at Québec, Quebec, on October 29, 2001.

[2]      On September 12, 2000, the appellant asked the Minister of National Revenue (the "Minister") to rule on the question whether Philip Barbeau Verreault, the worker, had held insurable employment within the meaning of the Employment Insurance Act (the "Act") while employed by it during the period in issue, from August 30 to September 25, 1999.

[3]      By letter dated January 31, 2001, the Minister informed the appellant of his decision that that employment was insurable because it met the requirements of a contract of service; there was an employer-employee relationship between it and the worker during the period in issue.

[4]      By notice of appeal filed on February 21, 2001, the appellant appealed to this Court from the Minister's decision dated January 31, 2001.

[5]      All the following assumed facts stated in paragraph 5 of the Reply to the Notice of Appeal were admitted from subparagraph (a) to subparagraph (j) inclusive:

[TRANSLATION]

(a)         The appellant, which was incorporated on January 18, 1980, operated a business manufacturing and installing iron on construction sites.

(b)         Guy Verreault, the worker's father, was the sole shareholder of the appellant.

(c)         During 1999, the appellant provided work for three persons, including the worker.

(d)         During the period in issue (four weeks), the worker rendered services to the appellant as a reinforcing-iron worker's apprentice.

(e)         The worker had no competency card; his father gave him on-the-job training.

(f)          During the period in issue, the worker worked under his father's supervision.

(g)         The worker's hours of work were recorded on the appellant's payroll.

(h)         All the worker's work equipment (hard hat, belt, boots) was supplied to him by the appellant.

(i)          During the period in issue, the worker worked for four weeks, accumulating 154 hours of work.

(j)          The worker's salary of $942 gross per week was determined in accordance with the construction decree.

[6]      Guy Verreault, the appellant's president and general manager, admitted that all the facts stated were true. He was the only witness heard for the appellant.

[7]      The Minister called as a witness Jean Vézina, an appeals officer with the Canada Customs and Revenue Agency, who investigated this case. The witness filed his "report on an appeal" as Exhibit I-2. His testimony is consistent with the testimony of the president and general manager of the appellant and established under oath the truth of his observations stated in Exhibit I-2, more particularly in paragraph 14, which reads as follows:

[TRANSLATION]

The payer would not have hired a person with whom it was dealing at arm's length on the same conditions of employment as the worker because the construction decree would not have permitted it to hire a reinforcing-iron worker's apprentice unless he was the employer's son, which was the case in this instance.

[8]      Section 6 of the Employment Insurance Regulations reads in part as follows:

    Employment in any of the following employments, unless it is excluded from insurable employment by any provision of these Regulations, is included in insurable employment:

...

(b)    employment of a person as an apprentice or trainee, notwithstanding that the person does not perform any services for their employer;

...

[9]      All the conditions of insurable employment were met. The son of the sole owner, who alone performed all the operations of the appellant, was hired and paid in accordance with the standards of the construction decree on the same conditions as the other workers on site; furthermore, he worked under his father's direct supervision, which is a condition of insurable employment of an apprentice.

[10]     The usual tests of subordination, suitable remuneration (fixed by the decree), regular performance of services and regular hours actually worked and non-arm's length dealing between father and son are essential conditions of the insurable employment of the son of the appellant's sole owner who personally worked on site.

[11]     The appeal is unfounded in fact and in law.

[12]     The worker's employment in the service of the appellant during the period in issue was insurable employment. Consequently, the appeal is dismissed and the Minister's decision is confirmed.

Signed at Sillery, Quebec, this 10th day of December 2001.

"A. J. Lesage"

D.J.T.C.C.

Translation certified true

on this 12^thday of March 2003.

Sophie Debbané, Revisor