[OFFICIAL ENGLISH TRANSLATION]
Date: 20011219
Docket: 1999-2761(EI)
BETWEEN:
LUC FORGUES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal from a
determination made on April 12, 1999. The decision at the origin
of this appeal concerns the insurability of the work performed by
the appellant during the periods from April 16 to
August 26, 1995, and from August 27, 1995, to
May 4, 1996.
[2] The instant case involved work as
a pilot for a company with the trade name "Les Ailes de
Gaspé Inc."
[3] The determination is based on the
following assumptions of fact:
[TRANSLATION]
(a) The payer was
incorporated on February 8, 1980.
(b) The payer
operated a commercial air navigation business.
(c) The appellant
has held a pilot's licence since 1989.
(d) The appellant
rendered services to the payer as a pilot or co-pilot.
(e) The appellant
was paid $20 an hour.
(f) In 1995,
the appellant rendered services to the payer from April 16
to December 20.
(g) On
August 28, 1995, the payer issued a record of employment to
the appellant indicating the completion of 12 weeks of
insurable employment during the period from June 5 to
August 25, 1995, and a weekly remuneration of $450.00.
(h) The appellant
needed 12 weeks of insurable employment to qualify for
unemployment insurance benefits.
(i) During
nine of the 12 weeks covered by the record of employment,
the appellant worked fewer than 10 hours a week.
(j) The record
of employment is false with respect to the number of weeks and
insurable earnings.
[4] Only subparagraphs 5(b), (d)
and (g) were admitted; the others were denied or the appellant
had no knowledge of them.
[5] When he started out as a pilot for
"Les Ailes de Gaspé Inc.", the appellant had
mainly theoretical knowledge and very limited practical
experience¾some 50 flying hours.
[6] He first took stock of all the
companies owning a very specific type of aircraft on which he
wanted to acquire experience, then applied for a job with all the
companies in question.
[7] Only "Les Ailes de
Gaspé Inc." answered his application and offered him
a job. At first, he had to acquire experience by flying with an
experienced pilot until he had 250 flying hours to his
credit, the threshold required by insurance companies for
coverage on flights when he was responsible for the aircraft.
[8] During the trial, learning or
training period, the appellant received remuneration of $80 a
week. Once the period was completed, he says he negotiated and
agreed with the employer on remuneration of $450 a week, which,
the appellant says, was consistent with standards in that field
of economic activity.
[9] After working for 12 weeks on
the above conditions, the appellant was laid off on the ground
that the company's needs had declined and the situation had
somewhat deteriorated. The appellant explained that, once he had
become unemployed and the contractual relationship had been cut,
he had agreed to continue flying without pay, wishing to develop
and enrich his experience, but also and, more particularly, to
add more flying hours to his credit, an essential factor in
potential career opportunities.
[10] He thus explained that he had benefited
from this scenario. It would have cost him a fortune to earn the
equivalent credits by leasing an aircraft. Thus, after he was
laid off, he regularly flew without pay for "Les Ailes de
Gaspé Inc.", adding flying hours to his credit at no
expense. The appellant received minor amounts between $10 and $50
and contended that they were essentially tips.
[11] To explain why he had continued working
without pay, the appellant said that this was the only way to
gain the essential experience he would eventually need to qualify
for a promising and ideal professional career.
[12] In response to the appellant's
claims, the respondent observed that this was essentially a case
in which there had been collusion or an arrangement between the
parties to make use of the employment insurance program. To
substantiate his claims, the respondent emphasized the following
facts:
· The
appellant received a weekly salary of $450 over 12 weeks,
exactly the number of weeks required to qualify for benefits.
· The formal
layoff could not at all be justified since the pace of the
company's economic activity did not decline or slow down;
quite the contrary, it was a very active period for
"Les Ailes de Gaspé Inc."
· The
appellant continued flying to the same or to an even greater
extent than before the layoff.
[13] The evidence revealed that the facts in
support of the respondent's claims were true, particularly
since they stemmed from irrebuttable documentary evidence made
available through a seizure conducted at the company as part of a
large investigation.
[14] In view of the fact that the
information gathered by the respondent was obviously true, the
appellant contended that he had essentially been a victim of, and
not at all an accomplice in, the actual system established by the
business.
[15] To explain and justify why he had had
to act as a victim for such a long period, the appellant argued
that he had had to agree to submit without objecting or talking
back, since the scenario nevertheless enabled him to acquire
exceptional experience by adding flying hours to his pilot
profile, the only yardstick of aircraft piloting expertise.
[16] I have no doubt that the appellant
viewed "Les Ailes de Gaspé Inc." as a real
springboard to the experience, recognition and expertise he would
eventually need to get an ideal job.
[17] I am also convinced that the
appellant's passion for flying made him an easy and
vulnerable target for a business that wanted to exploit the
employment insurance program to the maximum by having it pay a
large portion of its payroll.
[18] These aspects make the appellant's
case a very appealing and even particular one, in that I would
not want to penalize someone who chose to develop his skills
rather than do nothing.
[19] However, I also have an obligation to
dispose of an appeal on the balance of evidence and in accordance
with the provisions of the Employment Insurance Act (the
"Act") and the relevant case law.
[20] In insurability cases, only a true
contract of service can and must be characterized as an insurable
contract. A genuine contract of service is essentially a
reflection of the will of the parties, who provide for the
payment of compensation in consideration of a fair and reasonable
performance of work, all in the context of an employer-employee
relationship involving a relationship of subordination, the main
characteristic of which is the power to control the remunerated
work.
[21] A genuine contract also results from
the consent of the parties and generally has effects only between
the contracting parties.
[22] In this case, the appellant testified
that the employer one day decided to put an end to the contract
of employment. This was an indisputable power of the employer,
which had to follow up its decision by issuing a notice of
termination, thus formalizing the legal break.
[23] In fact, the evidence showed that there
was never a legal or actual break based on one of the fundamental
components of the contract, the performance of work. The
documentary evidence clearly showed that the appellant continued
to perform the same work in the same conditions and under the
same terms as he had before the record of employment was issued,
except that he had stopped receiving adequate remuneration.
[24] On the face of it, the situation was
not desired or wanted by the appellant. The passage of time and
the absence of evidence that he expressed his disagreement are
factors that clearly show he acquiesced, or at least tacitly
assisted, in what was nothing other than an arrangement to have a
portion of the salary owed him for the performance of his work
paid not by the employer, but by the state, through the
employment insurance program.
[25] The Act involves only those who
have actually lost their jobs. In the instant case, the appellant
did not lose his job either in fact or in law. He merely agreed
to his employer's withdrawing from his obligation to pay him
the remuneration arising from his employment as a pilot. That
agreement or consent to this shaping of the original contract
made him a full-fledged accomplice in the scheme. Such a scheme
disqualified the contract or at least made it impossible to
characterize the contract as insurable.
[26] For these reasons, the appeal must be
dismissed.
Signed at Ottawa, Canada, this 19th day of December 2001.
J.T.C.C.
Translation certified true
on this 27th day of March 2003.
Sophie Debbané, Revisor
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