Kollias v. M.N.R., docket 1999-1901-EI

Date: 20000316

Docket: 1999-1901-EI

BETWEEN:

NICK KOLLIAS,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

PRINCESS TOWERS,

Intervenor.

Reasons for Judgment

SOMERS, D.J.T.C.C.

[1] This appeal was heard in Montréal, Quebec, on January 26, 2000.

[2] The Minister of National Revenue (the "Minister") informed the Appellant that he had 98.50 hours of insurable employment and $1,528.00 as insurable earnings, while employed by Diane Arthur operating as Princess Towers, the Payor, during the period at issue, from June 1, 1997 to July 30, 1998, pursuant to subsection 10(1) of the Employment Insurance Regulations and paragraph 2(3)(a) of the Insurable Earnings and Collection of Premiums Regulations.

[3] The burden of proof is on the Appellant. He must show on a balance of probabilities that the Minister erred in fact and in law in his decision. Each case stands on its own merits.

[4] In arriving at his decision, the Minister relied on the following allegations of facts contained in paragraph 4 of the Reply to the Notice of Appeal, which were admitted or denied:

"(a) the Appellant was employed by the Employer as superintendent for an apartment building; (admitted)

(b) the Appellant was provided with an apartment free of charge for the performance of his duties; (admitted)

(c) at times, the Appellant received some extra duties pay of $8.00 per hour; (admitted)

(d) the Appellant also received a bonus of $25.00 for each apartment, which he rented himself; (admitted)

(e) effective for 1997 and later years, taxable benefits in kind are no longer insurable, except for the value of board and lodging enjoyed in a period if there are cash earnings paid in the period; (admitted)

(f) the value of the rent ($500.00 per month) is considered insurable only in a period when cash earnings are received; (admitted)

(g) the Appellant was paid on a bi-weekly basis; (admitted)

(h) the last 27 pay periods from July 21, 1997 to July 31, 1998 had to be considered for the calculation of the insurable hours; (admitted)

(i) the Appellant accumulated 98.50 hours of insurable employment during the last 27 pay periods; (denied)

(j) the last 14 pay periods from January 29, 1998 to July 31, 1998 had to be considered for the calculation of the insurable earnings; (admitted)

(k) the Appellant accumulated $1,528.00 of insurable earnings during the last 14 pay periods calculated as follows: earnings of $453.00, bonus of $75.00 and value of rent of $1,000.00." (denied)

[5] The Appellant, while employed as superintendent, was provided with an apartment free of charge for the performance of his duties. At times, the Appellant received extra duties pay of $8 per hour and also received a bonus of $25 for each apartment, which he himself rented.

[6] Effective for 1997 and later years, taxable benefits in kind are no longer insurable, except for the value of board and lodging enjoyed in a period if there are cash earnings paid in the period. The value of the rent, at the monthly rate of $500, is considered insurable only in a period when cash earnings are received. It is admitted that the Appellant was paid on a bi-weekly basis. The last 27 pay periods from July 21, 1997 to July 31, 1998 had to be considered for the calculation of the insurable hours.

[7] The Respondent produced, as Exhibit R-1, an itemized statement, for the last 27 pay periods, the hours for extra duty, earnings, bonus and free rent. The Appellant recognized that he received free rent from July 31, 1997 to July 30, 1998. He was unable to deny the amount of itemized earnings, as listed in the Exhibit.

[8] The Appellant did not present evidence as to other hours worked or earnings received during the period in question. The Court has no alternative but to accept the figures listed in the Exhibit.

[9] Paragraph 2(3)(a) of the Insurable Earnings and Collection of Premiums Regulations reads as follows:

(3) For the purposes of subsections (1) and (2), "earnings" does not include

(a) any benefit in kind, except an amount that is the value of board and lodging enjoyed by a person in a pay period in respect of the employment if cash remuneration is paid to the person by the person's employer in respect of the pay period;

..."

[10] The Appellant admitted that effective for 1997 and later years, taxable benefits in kind are no longer insurable except for the value of board and lodging enjoyed in a period if there are cash earnings paid in the period. Furthermore, the Appellant was unable to disprove the hours for extra duty, as presented by the Respondent. The Court must therefore accept the figures as listed in Exhibit R-1.

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

Signed at Ottawa, Canada, this 16th day of March 2000.

"J.F. Somers"

D.J.T.C.C.