Mia v. M.N.R., docket 98-1040-UI

Date: 20010403

Docket: 98-1040-U-I

BETWEEN:

ASHRAF MIA,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Charron, D.J.T.C.C.

[1]            This appeal was heard at Montréal, Quebec, on December 13, 2000, to determine whether the appellant held insurable employment within the meaning of the Unemployment Insurance Act ("the Act") from June 18, 1996, to September 5, 1997, when he worked for Khullar Gourmet Foods Ltd. ("the payer").

[2]            By letter dated August 4, 1998, the respondent informed the appellant that his employment was not insurable because there was no employer-employee relationship between the payer and him during the period at issue.

The facts

[3]            The facts on which the respondent relied in making his decision are set out as follows in paragraph 5 of the Reply to the Notice of Appeal:

                [TRANSLATION]

(a)            During the period at issue, the appellant was a citizen of Bangladesh and a foreign worker in Canada. (admitted)

(b)            The appellant is subject to immigration laws, which require foreigners to obtain an employment authorization in order to be allowed to work in Canada. (admitted)

(c)            The appellant obtained an initial open Canadian employment authorization from Employment and Immigration Canada for the period from January 17 to June 17, 1996. (admitted)

(d)            The appellant obtained a second Canadian employment authorization that was valid for the period from November 21, 1997, to November 20, 1998. (admitted)

(e)            During the period at issue, the appellant worked for the payer without an employment authorization issued by Employment and Immigration Canada. (admitted)

(f)             The appellant cannot be considered to have been an "employee" or to have entered into a valid contract of service with the payer during the period at issue. (denied)

[4]            The appellant admitted the truth of all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal except that which he denied, as indicated in parentheses at the end of each subparagraph.

Ashraf Mia's testimony

[5]            This individual is an actuary/accountant by profession. He arrived in Canada in July 1993 as a political Convention refugee (Exhibit A-1). He claimed political refugee status on April 16, 1996, and the Convention Refugee Determination Division found him to be a Convention refugee on April 18, 1996. He did not speak French and was not acquainted with our system. Everything was new for him, and he knew no one here except a few people from his community. He thought that, once accepted, foreigners did not require an employment authorization. He soon learned that he had to apply for permanent resident status, but he did not know that he had to renew his employment authorization. He discovered that this was required but the authorization had been expired for a year before he made another application. He spent the following winter in great poverty, since he did not have any work to support himself nor was he able to draw any unemployment insurance benefits.

[6]            To cap it all, there was a mail strike at the time, and he did not receive the employment authorization for the period from November 21, 1997, to November 20, 1998, until two months after applying for a new authorization. The appellant honestly believed that he had such an authorization from January 17 to June 17, 1996, as can be seen from Exhibit I-1. His close friends told him that, now that he was a plain and simple refugee, he was [translation] "like other people: you can work, you don't have any worries like before when you didn't have any papers and all that". The document filed as Exhibit I-1, entitled "Employment Authorization", is illegible in some places, but its import seems to be: "This document does not confer any status." The appellant received no letter informing him that his employment authorization had expired.

Lyne St-Jacques's testimony

[7]            Ms. St-Jacques is a customer services officer at Human Resources Development Canada, Employment Insurance. Her work involves seeing clients who want to receive employment insurance benefits. She met the appellant in the course of her work and asked him why he did not have an employment authorization for the period at issue. He answered that he had forgotten to take care of it: [translation] "Even though he'd just received another employment authorization for the periods after the periods we needed, and even though for welfare he needed a letter stating that he could not qualify because of the missing employment authorization".

Lorraine Pilon's testimony

[8]            Ms. Pilon was a legislative interpretation officer at Revenue Canada, Insurability. She contacted the appellant on February 10, 1998, and asked him whether he had worked without an employment authorization during the period at issue, and he told her that he had. She asked him why he had no authorization, and he told her: [translation] "It was an oversight." The appellant worked without an authorization for more than a year.

Analysis of the facts in relation to the Act

[9]            During the period at issue, the appellant was a citizen of Bangladesh and a foreign worker in Canada. As such, he was subject to immigration laws and regulations, which require foreigners to obtain an employment authorization in order to be allowed to work in Canada. The appellant obtained an initial authorization for the period from January 17 to June 17, 1996, and another authorization for the period from November 21, 1997, to November 20, 1998, but he did not have one from June 18, 1996, to November 20, 1997, while he was working for the payer. The respondent decided that the appellant could not be considered to have been an employee or to have entered into a contract of employment with the payer. Indeed, section 18 of the Immigration Regulations, 1978 reads as follows:

18. (1)      Subject to subsection 19(1), no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.

(2)                            No person who is in possession of a valid and subsisting employment authorization shall continue in employment in Canada unless he complies with each of the terms and conditions specified in the authorization.

[10]          Relying on Still v. M.N.R., [1998] 1 F.C. 549, the appellant argued that he was in good faith. The good faith principle was laid down by the Federal Court of Appeal in Still in November 1997. Ms. Still had immigrated to Ontario, Canada and applied for permanent resident status. On September 22, 1991, she was provided with the following document by officials from the Canadian Department of Citizenship and Immigration:

This will verify that, for the person(s) named hereunder, a recommendation has been sent to the Governor-in-Council for Canada for an exemption pursuant to subsection 114(2) of the Immigration Act

KATHLEEN STILL

Pending Governor-in-Council approval and provided all other requirements are met, the above-named will be granted permanent resident status in Canada. The above-named is/are hereby eligible to apply for employment and/or student authorizations, as applicable.

[11]          Ms. Still took that document to mean that she was entitled, at that point and without further action on her part, to work in Canada.

[12]          In the instant case, the appellant knew or ought to have known that he needed a valid and subsisting employment authorization to engage and continue in employment in Canada. As in Polat v. M.N.R. (December 4, 1997, A-31-97 (F.C.A.) and March 17, 1998, 96-402(UI) (T.C.C.)), the appellant had already obtained an employment authorization in the past. The fact that he obtained an initial employment authorization is significant because it indicates that he knew that when it expired he would have to obtain a new one before engaging or continuing in employment. Moreover, he admitted that he neglected to obtain another authorization during the period at issue.

[13]          In addition, the respondent argued that, under Quebec civil law, the question of good faith or bad faith is not relevant in determining whether a contract of employment prohibited by statute is null in the context of unemployment insurance proceedings. In Still, supra, the Federal Court of Appeal issued the following caution: "we cannot lose sight of the fact that cases originating from Quebec are to be decided under the illegality provisions found within the Civil Code of Québec".

[14]          The relevant provisions of the Civil Code are as follows:

1412 C.C.Q. The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it emerges from all the rights and obligations created by the contract.

1413 C.C.Q. A contract whose object is prohibited by law or contrary to public order is null.

1417 C.C.Q. A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest.

1418 C.C.Q. The absolute nullity of a contract may be invoked by any person having a present and actual interest in doing so; it is invoked by the court of its own motion.

A contract that is absolutely null may not be confirmed.

1422 C.C.Q. A contract that is null is deemed never to have existed.

In such a case, each party is bound to restore to the other the prestations he has received.

[15]          One of the essential conditions for the validity of a contract is the existence of an object that is not prohibited by law or contrary to public order. The Civil Code recognizes that a contract whose object is prohibited by law or contrary to public order is null and void. It explicitly provides that a contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest, and it adds that a contract that is absolutely null may not be confirmed.

[16]          In his work entitled Les Obligations, Mr. Justice Jean-Louis Baudouin states that [translation] "the unlawful nature of the object is penalized by absolute nullity since public order is at stake". In Saravia v. 101482 Canada inc., [1987] R.J.Q. 2658, the Provincial Court ruled as follows: "theImmigration Act, 1976 is a statute of public order, and a contract, knowingly or not, made in breach of one or many of its sections will be void and null."

[17]          The Immigration Act is a statute of public order that seeks to protect the general interest. It is aimed at regulating who may come into and remain in Canada.

[18]          Thus, under the civil law in force in Quebec, a contract of employment entered into, whether in good faith or in bad faith, by a person who is not a Canadian citizen or permanent resident and who does not have a valid employment authorization is null and void (Saad v. M.N.R., July 9, 1997, 96-1719(UI) (T.C.C.), and Kante v. M.N.R., May 23, 1997, 94-1056(UI) and 95-1153(UI) (T.C.C.)).

[19]          Whether under the common law principle laid down in Still, supra, and applied in Polat, supra, or under the Civil Code of Québec, the contract of employment entered into by the appellant and the payer for the period at issue is null.

[20]          It was up to the appellant to prove that he had a valid employment authorization, and he failed to do so.

[21]          Therefore, the appeal is dismissed and the Minister's decision confirmed.

Signed at Ottawa, Canada, this 3rd day of April 2001.

"G. Charron"

D.J.T.C.C.

Translation certified true on this 30th day of September 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

98-1040(UI)

BETWEEN:

ASHRAF MIA,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeal heard on December 13, 2000, at Montréal, Quebec, by

the Honourable Deputy Judge G. Charron

Appearances

Counsel for the Appellant:                  Gilbert Nadon

Counsel for the Respondent:                              Vlad Zolia

JUDGMENT

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

Signed at Ottawa, Canada, this 3rd day of April 2001.

"G. Charron"

D.J.T.C.C.

Translation certified true on this 30th day of September 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]