Furtado v. M.N.R., docket 98-256-UI

Date: 19990318

Docket: 98-256-UI

BETWEEN:

MARIA LIGIA FURTADO,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for judgment

Somers, D.J.T.C.C.

[1] This appeal was heard at Toronto, Ontario, on February 15, 1999.

[2] The Appellant applied to the Respondent to determine the number of insurable hours worked while working for Gino Di Florio, Roland Di Florio et al., o/a Trevi Investments, the Payor, during the period from January 1 to January 31, 1997, within the meaning of the Employment Insurance Act (the "Act").

[3] The Respondent informed the Appellant that it had been determined that she had worked 115 hours in insurable employment during the period in question based on subsection 10(4) of the Employment Insurance Regulations (the "Regulations") which reads as follows:

"Except where subsection (1) and section 9.1 apply, where a person's actual hours of insurable employment in the period of employment are not known or ascertainable by the employer, the person, subject to subsection (5), is deemed to have worked, during the period of employment, the number of hours in insurable employment obtained by dividing the total earnings for the period of employment by the minimum wage applicable, on January 1 of the year in which the earnings were payable, in the province where the work was performed."

[4] The burden of proof is on the Appellant. She must show, on a balance of probabilities, that the Minister of National Revenue (the "Minister") erred in fact and in law in his decision. Each case stands on its own merits.

[5] In arriving at his decision the Minister relied on the following allegations of facts:

"(a) the Appellant worked as a superintendent for the Payor; (admitted)

(b) the Payor did not pay the Appellant on an hourly basis; (admitted)

(c) the Payor did not record the hours worked by the Appellant; (admitted)

(d) the Appellant was paid a monthly salary of $787.50 for the month of January, 1997; (ignored)

(e) the minimum wage in Ontario during the period under review was $6.85 per hour; (ignored)

(f) since the Appellant was not paid on an hourly basis and the Payor did not record the hours worked by the Appellant, the insurable hours worked by the Appellant for the period under review, were determined by dividing the total monthly earnings of $787.50 by the minimum wage of $6.86 per hour and were determined to be 115 hours;" (denied)

[6] The Appellant was considered employed in insurable employment for the Payor within the meaning of the Act from September 1, 1996 to January 31, 1997. She worked as superintendent for the management and cleaning of a building owned by the Payor. The Appellant's responsibilities consisted in rent collection and cleaning the premises.

[7] According to a representative of the Payor, the Appellant was paid a monthly salary of $787.50 for the month of January 1997. The number of hours was not determined since the Appellant was paid on a monthly basis. The actual superintendent works approximately three to four hours a day. The Appellant, in her testimony, stated that she worked eight to ten hours per day, seven days a week. This statement is in complete contradiction with that of the Payor's representative. The Appellant added that she kept a record of her hours and reported them to the manager. This statement is also contradicted by the Payor's representative.

[8] Carlo Di Florio, signing as agent for the Payor, wrote the following in a letter dated June 2, 1997:

"Mrs. Furtado was paid a salary per month and was not paid hourly and, consequently, I cannot specify the number of hours she worked during her term of employment".

[9] According to the evidence before the Court, the hours worked are not ascertainable. The Appellant stated she worked eight to ten hours a day while the Payor's representative stated that she could have worked three to four hours per day. The difference in the number of hours is great. The Appellant admitted that she did not record her hours of work.

[10] I must conclude that the number of hours is not ascertainable and that the Minister was correct in calculating the said hours according to the calculation set out in subsection 10(4) of the Regulations.

[11] The appeal is dismissed and the decision of the Minister is confirmed.

Signed at Ottawa, Canada, this 18th day of March 1999.

"J.F. Somers"

D.J.T.C.C.