Chevarie v. M.N.R., docket 98-700-UI

Date: 19990714

Docket: 98-700-UI

BETWEEN:

PIERRE CHEVARIE,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for order

Tardif, J.T.C.C.

[1] This is a motion to dismiss an appeal. The facts are as follows: the work performed by the appellant was determined to be uninsurable for various periods and payers.

[2] First, in a letter dated November 25, 1997, the respondent informed the appellant that the work performed with Poséidon Poissons et Crustacés Inc. from July 12 to August 31, 1993 was not insurable employment.

[3] Second, on the same date, that is, November 25, 1997, the respondent informed the appellant that the work performed for Poissonnerie du Havre (1988) Inc. from April 24 to September 12, 1992, from May 17 to July 10, 1993 and from May 10 to September 8, 1994 was not insurable employment.

[4] Lastly, on January 9, 1998, the respondent informed the appellant that the work performed by him for the payer Nico Pêche International Inc. from June 28 to July 3, 1993 was not insurable employment.

[5] In response to these three decisions respecting the insurability of the appellant's employment, his accountant prepared a Notice of Appeal that was imprecise and vague, particularly in identifying the determination concerned: the [TRANSLATION] "Subject" is clearly stated to be an [TRANSLATION] "Appeal from a Decision". The same is also true of the letter where, again, a decision is referred to.

[6] The appellant signed the document and sent it to the Chief of the Appeals Division. The Notice was written as follows:

[TRANSLATION]

Chief, Appeals Division

165 rue de la Pointe-aux-Lièvres-sud

Québec, Quebec

Subject: Appeal from a decision

S.I.N. 216-318-121

Dear Sirs,

I hereby wish to dispute the recent determination of non-insurability made in my case by Revenue Canada, Taxation. I enclose copies of correspondence from the revenue collection service.

I would begin by mentioning that, at an information session held some time ago by a number of officers from Employment and Immigration Canada and Revenue Canada, Taxation, we were informed that there was no need for us to enter into a contract of service since our employment as professional fishermen was insurable, regardless whether our fishing operations were incorporated.

Needless to say, as a result of the incompetence of these officials, I was grossly misled, and this point will eventually be argued at length in court if I am unable to obtain satisfaction at your level.

I hope you will be able to make a positive decision as to the insurability of my employment very quickly.

[7] A few weeks later, the appellant instructed a solicitor with respect to the matter of the insurability of the employment he had held at various times with the three different employers. On May 18, 1998, his solicitor sent a letter to the Appeals Division stating the following:

[TRANSLATION]

Diane Gagnon

Appeals Division

Revenue Canada

165 rue de la Pointe-aux-Lièvres Sud

Québec, Quebec

Subject: Pierre Chevarie

(Unemployment insurance)

S.I.N.: 216-318-121

Our reference: 98-1542

Dear Madam,

Our client, Pierre Chevarie, has instructed us to, among other things, send you the following comments regarding his case.

On February 12, 1998, our client filed appeals with the Department of Revenue from each of the decisions concerning the insurability of his employment, namely the two decisions by the Department of Revenue dated November 25, 1997 and the Department of Revenue's decision of January 9, 1998, and he included in his letter of appeal copies of the three letters in question setting out the Department of Revenue's decision at the first level.

Our files currently show that you have acknowledged receipt of our client's appeals from the Department of Revenue's two decisions rendered on November 25, 1997, but our client has not yet received an acknowledgement of receipt from you for the appeal from the Department of Revenue's decision contained in a letter dated January 9, 1998.

Consequently, would you please send us an acknowledgement of receipt concerning our client Pierre Chevarie's appeal from the Department of Revenue's decision contained in a letter dated January 9, 1998.

Thanking you in advance for your cooperation, I remain . . .

[8] Counsel for the appellant very skilfully argued that the letter dated February 12 prepared by the appellant's accountant concerned the three determinations, that is, the two dated November 25, 1997 and that of January 9, 1998.

[9] In his testimony, the appellant stated that there was no possible confusion in his mind as to the scope of his Notice of Appeal of February 12, 1998. He asserted that that Notice of Appeal prepared by his accountant concerned the three determinations, namely the two of November 1997 and that of January 1998. He added that he had appended copies of the three determinations to that Notice.

[10] However, this claim is inconsistent with the correspondence of the respondent, who acknowledged receiving a copy of each of the two decisions of November 25, 1997, but not of that dated January 9, 1998.

[11] This is clear from the content of two letters dated March 16, 1998, one concerning the employment with Poissonnerie du Havre (1988) Inc. and the other concerning the employment with Poséidon Poissons et Crustacés Inc. It would be appropriate to set out the content of those two letters:

[TRANSLATION]

Pierre Chevarie

1074 rue Caillou

Havre St-Pierre, Quebec

Subject: Employment Insurance Act

Appeal from a Decision

We wish to inform you that we have received your appeal from a decision respecting the insurability of your employment with Poissonnerie du Havre (1988) Inc. from April 24 to September 12, 1992, from May 17 to July 10, 1993, from May 10 to September 8, 1994, from May 14 to August 30, 1995 and from May 2 to September 7, 1996.

An appeals officer will contact you to discuss your case and obtain any relevant information.

Yours sincerely . . .

[TRANSLATION]

Pierre Chevarie

1074 rue Caillou

Havre St-Pierre, Quebec

Subject: Employment Insurance Act

Appeal from a Decision

Dear Sir,

We wish to inform you that we have received your appeal from a decision respecting the insurability of your employment with Poséidon Poissons et Crustacés Inc. from July 12 to August 31, 1993.

An appeals officer will contact you to discuss your case and obtain any relevant information.

Yours sincerely . . .

[12] There is no doubt that the Tax Court of Canada has no jurisdiction to hear a case in which there has not first been a determination by the Revenue Canada Appeals Division. In other words, the Tax Court of Canada only has jurisdiction to hear cases involving insurability decisions by the Appeals Division.

[13] Understanding this fact, the appellant answered that the Appeals Division had in fact rendered a decision which concerned essentially the expiry of time. He thus referred to the letter dated May 28, 1998 which reads as follows:

[TRANSLATION]

St-Onge & Roy, Solicitors

Pierre St-Onge

440 avenue Brochu, Suite 201

Sept-Îles, Quebec

Subject: Employment Insurance Act

Pierre Chevarie

S.I.N.: 216-318-121

Dear Sir,

We have read your letter of May 18, 1998 concerning your client Pierre Chevarie's application to appeal.

Unfortunately, we cannot accept this appeal since Mr. Chevarie's letter of February 12, 1998 referred to an application to appeal respecting the insurability of his employment with Poissonnerie du Havre Inc. and Poséidon Poissons et Crustacés. He moreover appended to his application to appeal copies of letters of decision dated November 25, 1997 which he received from the insurability division. At no time did he express his intention to appeal the insurability decision of January 9, 1998 respecting his employment with Nico Pêche International Inc.

Consequently, we are closing his file.

Yours sincerely . . .

[14] The question that arises is whether the content of the letter of May 28, 1998 constitutes a decision that can be appealed before this Court. My answer to this question is that it is not, for the following reasons. First of all, to accept this argument would have the effect of circumventing the provisions respecting the time period for filing an appeal or an application for review: one would need only file a Notice of Appeal out of time in order to obtain a decision dismissing, of course, the appeal for late filing of notice and thus give the Tax Court of Canada jurisdiction by virtue of the fact that a decision has been rendered.

[15] It is possible that the Notice of February 1998 also concerned the decision of January 1998 since the application for review of the decisions was addressed to the Appeals Division, not the Tax Court of Canada, although the explanations provided by the appellant are not supported by the wording of the Notice of Appeal. This interpretation was not contradicted. Furthermore, while the Notice of Appeal was drafted as though it concerned a single decision, the respondent himself recognized and admitted that he considered the said Notice as valid in respect of two decisions.

[16] In the circumstances, the Department of National Revenue should accept the Notice of February 12, 1998 as an application for review of the decision of January 9, 1998, particularly since it undoubtedly concerned a similar employment held during a proximate period. Essentially, though, I am merely expressing a wish here since I have no authority or jurisdiction to order the respondent to assume that the Notice of February 12, 1998 also concerned the decision of January 9, 1998.

[17] As for the validity of the motion to dismiss the appeal, I cannot dismiss an appeal on the ground that there could be no appeal before this Court from the decision dated January 9, 1998.

[18] The respondent's motion is granted and the Court simply annuls the notice of the appeal to this Court from the determination dated January 9, 1998 in view of the Court's total lack of jurisdiction to hear an appeal where there has not first been a determination on the merits by the Appeals Division.

Signed at Ottawa, Canada, this 14th day of July 1999.

"Alain Tardif"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 11th day of May 2000.

Erich Klein, Revisor