Date: 20001107
Docket: 1999-4135-EI
BETWEEN:
PIERRETTE LEBEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor
Judgment
Lamarre Proulx, J.T.C.C.
[1]
The issue is whether, during the periods from May 20 to
June 21, July 1 to August 23 and September 2
to 6, 1996, the appellant was employed by Maxi Plus
Déboisement Inc. in insurable employment within the
meaning of paragraph 3(2)(c) of the Unemployment
Insurance Act (the "Act") for the time prior
to June 30, 1996, and within the meaning of
paragraph 5(2)(i) and subsection 5(3) of the
Employment Insurance Act as of June 30, 1996.
[2]
In her Notice of Appeal, the appellant also advanced the legal
argument that the Minister of National Revenue (the
"Minister") did not comply with the rules of natural
justice.
[3]
The facts on which the Minister relied in making his decision are
set out in paragraph 5 of the Reply to the Notice of Appeal
(the "Reply") as follows:
[TRANSLATION]
(a)
The payer, which was incorporated on June 6, 1990, operated
a sawmill at Biencourt and owned a building and equipment.
(b)
During the period in issue, the voting shares of the payer were
allocated as follows:
Vianney Dubé, the appellant's de facto spouse,
70 percent of the shares;
Alain Caron, 30 percent of the shares.
(c)
Since 1990, Vianney Dubé had been the only manager
responsible for the payer's day-to-day operations.
(d)
The appellant worked for the payer as a "bookkeeper";
more specifically, she performed the following duties: doing the
computerized bookkeeping, preparing the pays and making the
remittances, handling the billing, the mail and the bids,
answering the telephone, and informing customers of prices.
(e)
The appellant performed her duties in an office fitted up in the
basement of the family home.
(f)
The appellant had no work schedule to meet; she said she had
worked 40 hours a week during the periods in issue and none
between or outside those periods.
(g)
The appellant was paid $435.47 a week in 1993, nothing in 1994
and $291.20 a week starting in 1995 as a result of the
payer's lack of cash assets.
(h)
During the periods in issue, Vianney Dubé, principal
shareholder of the payer and the person in charge of its
day-to-day activities, received only three weeks' wages,
at $291.30 a week, in August 1996.
(i)
Vianney Dubé was unable to perform the duties of the
appellant, who claimed that no one had replaced her between,
before or after the periods in issue.
(j)
The appellant says that during the periods in issue, which were
all in 1996 and totalled 14 weeks, she worked 40 hours a
week, yet the payer was operated on a continuous basis throughout
the summer season (from May to October).
(k)
There was an arrangement between the parties for the sole purpose
of enabling the appellant to draw unemployment insurance
benefits.
[4]
Vianney Dubé, the appellant and Laval Mailhot, a
director at the Canada Customs and Revenue Agency
("CCRA"), testified at the request of counsel for the
appellant. Dyane Fortin, an appeals officer, testified at
the request of counsel for the respondent.
[5]
Subparagraphs 5(a) to (e), (g) and (h) of the Reply were
admitted and paragraphs 5(f), (i), (j) and (k) denied.
[6]
Vianney Dubé explained that from 1990 to 1994 he had
a small forest clearing and chemical spraying business called
Maxi Plus Déboisement Inc., the payer in the instant case.
In 1995, the business focused solely on lumber and ceased the
services part of its activities. The business purchased for
$25,000 sawing machinery, which it transported on a large flatbed
semi-trailer. Other equipment and machinery had to be purchased
as well. The tractor alone cost $125,000 and was used to generate
power. Buildings were constructed at a cost of $12,000. All this
required nearly a year and a half of preparations.
[7]
The business obtained a $27,000 grant from the
Société québécoise de
développement de la main-d'oeuvre
("S.Q.D.M."). The grant was allocated over
three years. The Department of Natural Resources provided it
with the services of a lumber professional at an hourly rate of
$25. By 1997, the initially estimated costs had practically
doubled. The business ran short of funds in 1997 and declared
bankruptcy in 1999.
[8]
The S.Q.D.M. had provided the services of a person to adapt to
the sawmilling business's needs some software to be used for
inventory purposes. That person stayed a week and provided
assistance on call.
[9]
An office was fitted up in the basement of the residence and was
equipped with a fax machine, a telephone and filing cabinets. The
appellant did the bookkeeping there. She went to the sawmill on
Fridays. She noted the status of the inventory with
Mr. Dubé and returned to the office to make the
entries.
[10] The
business had a few employees in 1996: Yvan Lebrun from
June 3 to July 26, Alain Caron from August 5
to 30, Germain Kirouac from May 20 to June 21 and
from July 1 to 5, Marco Sirois from June 24 to
August 23, from September 2 to October 11 and from
October 21 to 25, Jean-Marie Sirois from
June 24 to August 23 and from September 2 to
October 25. Their records of employment were filed as
Exhibit A-1.
[11]
Mr. Dubé filed the appellant's contract of
employment as Exhibit A-2. It reads as follows:
[TRANSLATION]
Maxi Plus Déboisement inc.
41 Principale
Lac Des Aigles
G0K 1V0
May 15, 1996
Subject: Contract of Employment between
Pierrette Lebel, employee, and Maxi Plus Déboisement
inc., employer
I am hiring Pierrette Lebel to start work as a secretary on
May 19, 1996.
She will be paid $7.00 an hour for a 40-hour week, from
8:30 a.m. to 5:30 p.m., with one unpaid hour for
lunch.
Her work will consist of performing all secretarial duties:
taking care of the pays, doing the bookkeeping, answering the
telephone, making deposits at the credit union, paying accounts
payable, answering the mail, closing the books, taking inventory
at the sawmill on Fridays and entering it in the computer.
(signed)
Vianney Dubé
President
[12] In
cross-examination, the witness admitted that the appellant had
signed records of employment (Exhibit A-1) in periods
during which she was supposed to have been laid off, for example,
on August 29, 1996. He had asked her to do some jobs without
remuneration, which took perhaps seven or eight hours a
week. That was during times when the sawmill machinery was
undergoing repairs. There remained nothing at all to do other
than the separation certificates.
[13]
Mr. Dubé and the appellant could sign the cheques.
The appellant did the pays. The grant applications were completed
by Mr. Dubé and the appellant.
[14] The
appellant testified that she had monitored the timber shipments,
received and paid the invoices from the timber carriers and
completed the grant applications. She explained that she had done
the bookkeeping, prepared the invoices and entered the inventory
and that she had helped her spouse outside her periods of
employment.
[15] During
her testimony, the appellant filed as Exhibit A-3 her
records of employment from the periods in issue. In addition to
the records of employment for the periods in issue, she filed one
for the period from September 30 to October 25, 1996.
This last period is not in issue and the appellant had never
previously mentioned it. In cross-examination, the appellant
admitted that the claim for unemployment insurance benefits
(Exhibit I-3) is dated September 17, 1996 and
signed by her.
[16] The
appellant testified that her lawyer, not she, had asked to have
her file transferred from the Québec office to
Montréal and she said she did not know why. The letter of
January 13, 1998 from the appellant's counsel making
that request and accompanied by a power of attorney from the
appellant, was filed as Exhibit I-5. A letter of
January 21, 1998 from Revenue Canada to the appellant asking
her why she had made such a request, with a certified true copy
to her lawyer, was filed as Exhibit I-4. On
January 27, 1998, a reply came from counsel for the
appellant (Exhibit I-6) stating the following: [TRANSLATION]
". . . our client wishes to transfer her
file to Montréal to avoid additional costs."
[17] A letter
dated February 4, 1998 from the Assistant Director of
Appeals, Laval Mailhot, was filed as Exhibit I-7.
That letter states the following:
[TRANSLATION]
. . .
We wish to inform you that the appellant's originating
office must handle the appeal application. In this case, the
appellant and the payer both live in our area.
We have analyzed the reason stated in your application and
should provide you with the following information:
Our office ensures that the cases of all its clients are
handled as expeditiously as possible. To facilitate communication
and avoid additional costs for its clients and their
representatives, our office has toll-free telephone lines
(1-800-236-9649) linked directly to the Income Tax
Appeals Division. In addition, to expedite the process and
satisfy our clientele, a representative of the Department can
easily travel to meet you and all the parties to the appeal to
discuss the appeal.
In light of the above, we have come to the conclusion that
your client's application will be handled at our office.
Considering all the options we offer our clients, this decision
should not result in additional costs to Ms. Lebel.
[18] On
February 23, 1998, Dyane Fortin sent a letter to
counsel for the appellant (Exhibit I-8) asking him to
contact her by telephone to schedule for no later than
March 20, 1998 an interview with his client for the purpose
of determining whether the employment held by
Pierrette Lebel was insurable. On March 23, 1998,
Ms. Fortin was sent a reply from counsel for the appellant
(Exhibit I-9) stating that he and his client would be
prepared to meet her on April 3. Ms. Fortin sent a
letter dated March 30, 1998 (Exhibit I-10) to
counsel for the appellant advising him that the interview would
be held on April 3 at 10:00 a.m. and that she expected
Ms. Lebel to be there. In a letter dated
April 1, 1998 (Exhibit I-11) sent by fax,
counsel for the appellant informed Ms. Fortin that he would
not be free on Friday, April 3. He asked her to contact him
to set a new date. In a letter dated April 7, 1998
(Exhibit I-12), Ms. Fortin asked counsel for the
appellant to contact her to agree on a new date—no later
than April 24—and time for an interview with
Ms. Lebel. Failing a reply to her request by April 17,
she would be forced to complete her handling of the files based
on the information obtained to that point.
[19] On
April 9, 1998, counsel for the appellant wrote to the
Minister (Exhibit I-13), stating:
[TRANSLATION]
. . .
In this case, we have only recently begun representing her
interests in an insurability matter. As is our habit, we have
asked that our client's case be transferred from the
Québec appeals division to that in Montréal.
However, the Québec appeals division refuses to
transfer Ms. Lebel's case to the Montréal appeals
division.
The Québec division refuses to give serious reasons for
its decision but is prepared to send an appeals officer to
Montréal to hear representations in this case.
Although we felt that this was not a very judicious use of
public funds, we were prepared to agree to this rather unusual
procedure. We are, however, somewhat uncomfortable with the
Québec appeals division's insistence on handling our
client's case at all costs and we ask you to intervene to
have the Québec appeals division grant our client's
request and transfer her case to the Montréal appeals
division.
[20] On
June 10, 1998, the Minister replied
(Exhibit I-14) through the Assistant Deputy Minister
at the Appeals Branch:
[TRANSLATION]
. . .
I understand your request. However, the Department is
attempting to restrict case transfers as much as possible in
order to ensure better service and provide more effective case
management. The appellant's place of residence generally
determines which office will handle the case.
In this insurability matter, the payer and the worker are
already dealing with the Québec Tax Services Office, and
that office ensures that cases are handled as quickly as
possible. To facilitate communication and avoid additional costs
to clients, the CPP/EI Appeals Division may be contacted
toll-free at 1-800-236-9646. In addition, to
expedite decision-making, the Québec Tax Services
Office offers the option of having an appeals officer travel to
meet all the parties to the case.
[21] On
July 7, 1998, counsel for the appellant sent a letter
(Exhibit I-15) to the Deputy Minister of National
Revenue stating:
[TRANSLATION]
. . .
First, your letter in no way answers the questions we raised
with respect to the fear we expressed in our letter of
April 9, 1998 that the rules of natural justice were being
breached.
It also fails to answer our question about the use of public
funds in this case.
We believe it would be much less costly to transfer our
client's case to Montréal than to send an officer from
Québec there.
. . .
[22] On
September 9, 1998, the Deputy Minister replied
(Exhibit I-16):
[TRANSLATION]
. . .
I understand your fear regarding a breach of the rules of
natural justice. However, I can assure you that the
Department's officers apply the employment insurance rules in
a fair and equitable manner, conducting a careful examination of
the circumstances of each case before issuing a decision.
Another priority of the Department is to use public funds as
economically and effectively as possible. On the whole, case
transfer requests result in additional staff training and
personnel management costs, as well as additional case management
and transfer costs, for the Department. They also hinder our
efforts to close files as quickly as possible in view of the
impact our decisions have on the Department of Human Resources
Development, which administers the payment of employment
insurance benefits. It is therefore essential that the Department
limit case transfers as much as possible.
[23] From
October 21, 1998 to September 22, 1999, there was an
exchange of nine further letters (Exhibits I-17 to
I-25) repeating the same things. Exhibit I-25 is
a letter from Mr. Mailhot, Chief of Appeals, dated
September 22, 1999, refusing to transfer the case and
stating that it will be handled by the Québec office. On
that same date, September 22, 1999, the Minister's
ruling on the appeal from the Minister's decision
(Exhibit I-26) was sent to the appellant. It is that
ruling that is under appeal here.
[24]
Dyane Fortin was examined by counsel for the appellant. Her
CPT-110 report was filed as Exhibit A-4. That
report was prepared for the purposes of the Minister's
decision which had to be made regarding the decision by the
insurability officer. This latter decision, dated
October 18, 1996, was filed as Exhibit I-27. It
was made in response to a request to the Minister from Human
Resources Development Canada for a decision as to whether the
appellant's employment during the periods in issue was
insurable. An application to appeal the decision of
October 18, 1996, received on October 31, 1996, was
filed by counsel for the appellant, who is not the current
counsel of record.
[25]
Ms. Fortin explained that the appeal file was assigned to
her because it was noted when the files were registered that she
had in fact been the officer responsible for the appellant's
files for the two previous periods. She communicated with counsel
for the appellant by telephone and asked him whether the
appellant had worked under the same conditions of employment as
in 1993 and 1995, the period under appeal before this Court. She
asked him whether he wanted Ms. Lebel and
Mr. Dubé to be re-examined or whether he
preferred that the entire matter be put in abeyance pending the
hearing of the appeal for the previous years. Counsel informed
her that he preferred that the matter be suspended until judgment
had been given. Judgment was rendered on June 9, 1997,
dismissing the appeal.
[26] The case
came back to the Department on October 23, 1997.
Ms. Fortin contacted counsel for the appellant, but did not
obtain a reply from him. She then contacted Ms. Lebel on
October 27, 1997. Ms. Lebel told her at that time that
she had worked under virtually the same conditions as during the
previous years. On October 30, Ms. Lebel called her
back to say that Annick Bédard was her new legal
representative. On November 14, Ms. Fortin received a
letter from Ms. Bédard; she subsequently received
another informing her that she was withdrawing from the case and
that it was being transferred to the appellant's current
counsel.
[27]
Ms. Fortin explained that, given the facts described in
paragraphs [17] to [24] of these reasons, it was impossible
for her to communicate with the appellant. She therefore examined
the insurability file to see which terms and conditions might be
different from those for the previous period. She saw none.
[28]
Laval Mailhot, Chief of Appeals at the CCRA, testified at
the request of counsel for the appellant. He confirmed that the
CPT-110 had been initialled by him on September 22,
1999 and that the Minister's decision, signed by him, had
been sent on that same day along with his letter, also of that
date, to counsel for the appellant referred to in
paragraph [23] of these reasons. Mr. Mailhot confirmed
that there was enough money in the budget to send Ms. Fortin
to Montréal and likewise sufficient funds to put the file
in an envelope and send it to the Montréal office.
Argument
[29] With
respect to the point concerning natural justice, counsel for the
appellant argued that the letter of September 22, 1999
(Exhibit I-25) left him little time to provide
additional information. As a possible argument, he raised the
fact that Ms. Fortin had previously handled
Ms. Lebel's file and had rendered a negative decision.
He was troubled by the insistence on handling the case in
Québec. He did not understand the reason for this.
[30] With
respect to the appellant's employment, her counsel argued
that it was a quite ordinary job, which had been performed in
difficult circumstances, circumstances in which a business was
started up which, unfortunately—and this is not the first
business to which this has happened—for lack of sufficient
means had to close its doors quite soon thereafter.
[31] Counsel
for the appellant referred to the following passage in the
Federal Court of Appeal's decision in Légaré
v. Canada, [1999] F.C.J. No. 878:
[4] .
. . The Court is not mandated to make the same kind of
determination as the Minister and thus cannot purely and simply
substitute its assessment for that of the Minister: that falls
under the Minister's so-called discretionary power. However,
the Court must verify whether the facts inferred or relied on by
the Minister are real and were correctly assessed having regard
to the context in which they occurred, and after doing so, it
must decide whether the conclusion with which the Minister was
"satisfied" still seems reasonable.
[32] Counsel
for the respondent argued that the appellant continued to do the
same work outside the periods in issue for no remuneration. She
did not doubt, as Mr. Dubé had said, that the
appellant was an excellent collaborator for the business, but
counsel for the respondent maintained that the appellant was in
fact much more a collaborator than an employee of the business.
The business was in its start-up phase and did not have
sufficient funds to hire a full-time secretary.
[33] As to the
fact that the same officer had handled a subsequent appeal
application, that is the Department's practice. That officer
had better knowledge of the context, of the business and of the
working conditions and could make sure that nothing had changed.
The Minister's officer wanted to speak with the appellant to
determine whether there had been any changes for the period
concerned. She wanted to grant the appellant a new hearing. As to
the cost issue raised by counsel for the appellant in his
extensive correspondence, counsel for the respondent argued that
there was a 1-800 number at the disposal of the appellant
and her counsel.
[34] Counsel
for the respondent referred to the decision of October 27,
1999 by Deputy Judge MacLatchy of this Court in
Diego Spano, a case in which the appellants had
invoked the principles of natural justice. Counsel cited a
passage found at page 9 of that decision:
[23] . . . They were given full opportunity to make full
disclosure for the Respondent's consideration and they were
informed of their rights of appeal. . . .
[35] She also
referred to the decision which I rendered in Berthiaume v.
Canada, [1998] T.C.J. No. 1067:
[32] Can
counsel for an appellant, or an appellant himself, dictate to the
Minister's officer responsible for the investigation at the
appeals level the investigation method that officer should use?
To ask the question, in my view, is to answer it. Counsel for the
appellant wished to know the Court's position on this point.
The Court usually does not rule on a question unless it has been
debated in court. In this case, I find the answer so obvious that
I will give it. The Minister's appeals officer must render a
decision after forming an opinion on the case. His is a
quasi-judicial role. However, regardless of whether an officer of
the Minister acts in a quasi-judicial role or in an inspection
role, it is up to him to determine the best way to ascertain the
truth in accordance with the standards of what is reasonable. It
seems clear to me that a meeting or at least a telephone
conversation with the appellants was necessary to enable him to
assess the grounds of appeal and to allow the appellants to be
heard. Indeed, appellants do not always find a telephone
conversation sufficient to fully express their point of view.
However, this method may be acceptable for purposes of
efficiency. But there is definitely no obligation for the appeals
officer to proceed by means of a written questionnaire if he
deems that this is not how he will best shed light on a case. In
my opinion, in view of his lack of cooperation, the appellant
cannot complain that there was no investigation. In any case, I
find that the Minister had sufficient information to be able to
render his decision.
[36] In
rebuttal, counsel for the appellant reiterated the point that he
found it strange that the Québec office had insisted on
keeping the file and not transferring it to the Montréal
division, which he felt would have offered better guarantees with
respect to justice appearing to be done. He cited no case law or
doctrine in support of his argument. He referred to the fact
that, in an appeal before the Federal Court of Appeal, the matter
may be referred back to the Tax Court of Canada, but to be
decided by another judge of the latter court, the idea being to
have a new hearing.
[37] Since
counsel for the appellant referred to the principles of natural
justice, I shall address that subject first. To define the notion
of natural justice, I refer to Patrice Garant's Droit
administratif, 4th ed., Les Éditions Yvon Blais
Inc., at the following pages:
[TRANSLATION]
(page 213)
Introduction: Natural Justice - Fundamental Justice
The principles of natural justice or fundamental justice are
the result of a jurisprudential construct specific to the common
law. This construct holds a central place in disputes over
administrative legality and, much more specifically, in the
monitoring and control of quasi-judicial bodies.
These principles of natural justice include two rules: the
audi alteram partem and nemo judex in sua
causa rules. The first means that a citizen whose rights are
interfered with is entitled to be heard in order to put forward
his defence or point of view; the second means that a citizen is
entitled to be treated with impartiality and without
prejudice.
(page 214)
The principles of natural justice are a jurisprudential
construct based on the idea that a public body which is called
upon to rule on the rights of a citizen must not only be
impartial but afford that citizen the opportunity to be heard or
to put forward his point of view or defence. A body which, by its
decisions, affects the rights of a citizen is considered to be
like a judge who, by his judgment, affects the rights of a person
subject to his jurisdiction. . . .
(page 229)
This "new natural justice" is a colourful expression
referring to the introduction of a new rule applied to the
performance of purely administrative functions: it is the
requirement of procedural fairness or the duty to act fairly.
This duty to act fairly is an adaptation to administrative
functions of the application, in particular, of the audi
alteram partem rule, as the Supreme Court has held in a
number of judgments.
(page 230)
Can it still be said in 1991 that there is a clear line
between quasi-judicial functions and administrative functions,
between the quasi-judicial and administrative domains?
The establishment of the duty to act fairly in
Nicholson (Nicholson v. Haldimand Norfolk, [1979]
1 S.C.R. 311, 324; approved in A.G. Canada v. Inuit
Tapirisat, [1980] 2 S.C.R. 735, 757) suggested that
different rules applied to different areas. It appears, however,
after 10 years of case law and doctrine that this is no
longer the case. Emphasizing that the requirements of procedural
fairness, like those of traditional natural justice, have the
same basis, namely the "general principles of natural
justice", the Supreme Court held in 1990 that:
There is no longer a need, except perhaps where the statute
mandates it, to distinguish between judicial, quasi-judicial and
administrative decisions. . . . Following
Nicholson, that distinction became less important and was
found to be of little utility . . . . (Board of
Education of the Indian Head School Division No. 19 v.
Knight, [1990] 1 S.C.R. 653; Syndicat des
employés de production du Québec et de l'Acadie
v. Canada, [1989] 2 S.C.R. 879, 895-96)
Moreover, in 1980, Dickson J. quite openly stated:
It is wrong, in my view, to regard natural justice and
fairness as distinct and separate standards and to seek to define
the procedural content of each. . . . The content of
the principles of natural justice and fairness in application to
the individual cases will vary according to the circumstances of
each case . . . . (Martineau v. Matsqui Institution
Disciplinary Board, [1980] 1 S.C.R. 602, 630)
(page 232)
The duty to act fairly applies to investigations which end
with a report, findings or recommendations. . . .
The duty to act fairly, however, does not apply to acts that
are not decisions directly affecting a citizen, such as purely
preliminary or bureaucratic acts, which cannot cause prejudice
for the time being; this is the case with certain verifications,
investigations or inspections. According to the Supreme Court in
Irvine, the administrative process must have reached a
sufficiently advanced or specific stage. Thus, the verification
of a complaint and the decision to conduct an investigation do
not call for the application of procedural requirements dictated
by fairness. The courts have decided that the administrative
process must not be made unduly cumbersome, particularly where,
at a truly critical moment, a citizen will have an opportunity to
benefit from fair procedural protection.
(pages 237-38)
In short, bodies exercising administrative functions clearly
have a duty to act fairly. . . . The content of this
"new natural justice" will gradually be defined and
will evolve alongside the traditional rules of natural justice.
However, it is essential to bear in mind that the new natural
justice is an adaptation to purely administrative functions of
the application of the audi alteram partem rule, hence the
extreme importance of carefully examining that rule in its
classic formulation.
(page 346)
What situations have been recognized by the courts of law as
giving rise to a reasonable fear of prejudice? There are four
classes. First, there are conflicts of interest, that is to say,
situations in which a person may be inclined to prefer his
personal interest or an interest with which he is involved over
the public interest, be it national, provincial or local. Second,
there are situations in which a person hears an appeal from a
decision which he has rendered or in which he participated.
Third, there is the situation of a person who acts simultaneously
or consecutively as accuser and judge. Fourth, there are prior
statements, behaviour or attitudes of a tribunal member with
respect to matters directly related to the question to be
decided. As to the attitudes and statements of the tribunal at
the hearing itself, we believe, for the reasons set out below,
that they must be considered as falling within the fourth
class.
(pages 383-84)
The courts however have been very reluctant to recognize that
specific previous behaviour gives rise to a reasonable fear of
prejudice. Thus, the Court of Appeal has held that the fact that
a member of a disciplinary committee had acted 10 years
earlier as a syndic in another disciplinary matter involving the
applicant does not give rise to a reasonable fear of prejudice.
It was similarly decided where a judge who had acted a number of
years earlier as Crown prosecutor in a proceeding against the
accused found himself judging that same individual. The same
holds true in the case of a judge who in a previous trial has had
to rule openly on matters similar to those on which he is now
required to rule. With respect to previous behaviour, there is no
reasonable fear of prejudice in such cases. It would be quite
different if a judge were hearing an appeal from one of his
previous decisions in the sense indicated above.
In the same vein, the Federal Court of Appeal held as follows
in Fogel v. Minister of Manpower and Immigration:
. . . the principle of natural justice invoked is
not offended simply because, as in this case, the person
adjudicating has participated in a prior adjudication of another
matter involving the same party.
(page 385)
If previous statements constitute more a policy statement or
an observation arising from a policy which the tribunal or a
member of the tribunal believes follows from the legislation, no
reasonable fear of prejudice results, even if a connection can
clearly be made between those statements and the issue before the
tribunal.
(page 389)
In our view, the case law clearly appears to establish that a
previous policy statement or previous directives by a tribunal do
not give rise to a reasonable fear of prejudice if the tribunal
complies with the audi alteram partem rule and preserves
its freedom to decide, even if the decision to intervene is
consistent with the policy statement or the directives.
[38] The
purpose of this obviously very lengthy citation was to ascertain
the principles of natural justice applying to the administrative
process which results in the Minister's decision. These
principles require that the person concerned have had the
opportunity to be heard by impartial officers.
[39] The
Minister's officers inquired many times as to the alleged
breaches of the principles of natural justice. The stated reason
concerned the costs to government. This was certainly not a
serious reason. It is for the government to determine the best
use of its resources. As for the appellant, she had access to
toll-free telephone lines.
[40] The
reason for the fear of prejudice or of lack of impartiality was
never clearly expressed. It was expressed only at the hearing.
The reason given is a substantial one because it concerns one of
the two rules of natural justice, namely the right to be dealt
with in an impartial manner. However, as may be seen from the
passages cited above, the courts have held on a number of
occasions that an officer is not considered to be biased simply
because he has previously rendered decisions concerning the same
persons. The reasons given must lead one to believe that there
was prejudice, and this prejudice must be proven. In the instant
case, however, no specific allegations of prejudice were made.
There was perhaps a vague expression of a fear of prejudice. That
is not sufficient. In any case, I find the procedure followed by
the appeals officer to have been fair. The appeals officer waited
for this Court's decision concerning the appellant for the
previous years. The judgment confirmed the Minister's
decision. According to the officer's testimony, she inquired
as to whether there had been any changes in working conditions
which might lead her to change her position. None was mentioned
to her.
[41] I
therefore find that the principles of natural justice were
complied with in the decision reached by the Minister. The
appellant was given the opportunity to be heard by an impartial
person.
[42] As to the
subject of the appeal, that is to say, the matter of whether the
employment was insurable within the meaning of the Act, I
first cite subparagraph 3(2)(c)(ii) of the Act
which was in effect until June 1996 (the relevant provisions of
the Employment Insurance Act are similarly worded):
3.(2) Excepted employment is
. . .
(c)
subject to paragraph (d), employment where the employer
and employee are not dealing with each other at arm's length
and, for the purposes of this paragraph,
. . .
(ii)
where the employer is, within the meaning of that Act, related to
the employee, they shall be deemed to deal with each other at
arm's length if the Minister of National Revenue is satisfied
that, having regard to all the circumstances of the employment,
including the remuneration paid, the terms and conditions, the
duration and the nature and importance of the work performed, it
is reasonable to conclude that they would have entered into a
substantially similar contract of employment if they had been
dealing with each other at arm's length.
[43] This
paragraph means that employment where the employer and employee
are related persons is not excepted employment if it is
employment which meets the usual standards of the labour market,
employment the start and end of which are truly dictated by a
demand for labour and by a shortage of work, employment in which
the services of even an unrelated person would be required and
for which the business could afford to pay.
[44] As to the
duration of the work, the evidence revealed that the appellant
worked for the business outside the periods of employment in the
same manner as during those periods. The demand for labour always
remained the same. The appellant was the person who knew how to
enter the data in the computer. She did the pays, the billing and
the bookkeeping. It is therefore impossible to believe that she
virtually stopped working during the periods when she was laid
off.
[45] The
period of employment which is not in issue and for which the
record of employment was produced together with those for the
periods in issue can only add to the confusion that reigns as to
the facts in this case. If Mr. Dubé had been a
genuine employer, he would have known the appellant's exact
periods of employment. Furthermore, it is strange that the
appellant maintained her unemployment insurance benefit claim of
September 17, 1996 when she apparently had a work period
from September 30 to October 25, 1996. She definitely
did not inform the officers responsible for reviewing her claim
for benefit about that work period.
[46] The
admission that the only salary Mr. Dubé drew for his
work was $291.30 a week for three weeks must not be
forgotten. The Reply to the Notice of Appeal refers to the
business's being short of cash. Remuneration is normally
determined on the basis of what the business can pay. In this
instance, the financial statements were not filed and no
explanation was given as to the basis of the appellant's
remuneration.
[47] The hours
of work and the work performed do not appear to have been
monitored and no evidence was adduced in this regard.
[48] I
conclude that the facts relied on by the Minister are true and
were correctly and reasonably assessed in accordance with the
relevant provisions of the Act. The employment in question
is not insurable employment. In my view, what is involved is
rather a joint undertaking which thus, unfortunately, does not
come under the Act currently in force. The appeal is
accordingly dismissed.
Signed at Ottawa, Ontario, this 7th day of November 2000.
"Louise Lamarre
Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
[OFFICIAL ENGLISH TRANSLATION]
1999-4135(EI)
BETWEEN:
PIERRETTE LEBEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on July 14, 2000, at
Trois-Rivières, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Appellant
:
Gilbert Nadon
Counsel for the Respondent
:
Josée Vigeant
JUDGMENT
IT IS
HEREBY ORDERED that the appeal be dismissed and the determination
at issue confirmed in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada, this 7th day of November 2000.
J.T.C.C.
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