Husar v. M.N.R., docket 1999-1900-EI

Date: 20000307

Docket: 1999-1900-EI

BETWEEN:

JAN HUSAR,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

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

[1] This appeal was heard at Montréal, Québec, on January 27, 2000.

[2] The Appellant is appealing from a decision by the Minister of National Revenue (the "Minister") that the Appellant had 506 hours in insurable employment while employed with Canac Inc., the Payor, during the period from March 31 to June 29, 1998.

[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 fact which were admitted or denied by the Appellant:

"a) The Payor is an international company offering services in Railway industry. (admitted)

b) The Appellant was hired by the Payor to work on a project concerning failures in locomotive components for C.N. (Canadian National). (admitted)

c) The Appellant worked at the place of business of the Payor under a contract of service. (denied)

d) Initially, the Appellant and the Payor signed a six-month contract but on June 10, 1998, the Payor sent a letter to the Appellant which modified his status from "a full-time" position to a "as required" position. (denied)

e) The Appellant did not accept his new status and the Payor released him from any and all responsibilities, on June 29, 1998. (denied)

f) During the litigation period, the Appellant worked, and was paid, for 506 hours and received a total of $22,628.32 from the Payor; all his working hours were reported on his time sheet as requested by the Payor. (denied)

g) The Appellant claims that, during the same period, he worked an additional 468 hours at his home for the Payor. (admitted)

h) Those allegedly hours have not been reported on the time sheet of the Appellant and have not been paid by the Payor." (denied)

[5] The Payor, an international company offering services in the railway industry, hired the Appellant as a mechanical engineer to work on a project concerning failures in locomotive components for Canadian National (C.N.).

[6] Initially the Appellant and the Payor signed a six-month contract, but on June 10, 1998 the Payor sent a letter to the Appellant which modified his status from a full-time position to a "required" position. This modification of the terms of the contract was made by a written notice of 10 days as required by the original contract. The Appellant did not accept the terms of the new arrangement.

[7] The Appellant admitted that he worked 506 hours at the Payor's place of business between March 31 and June 29, 1998 and that he was paid for those hours. Furthermore, the Appellant stated that during the period in question he worked at home, as it is noted in his C.N. agenda produced as Exhibit A-2, 468 hours in overtime.

[8] The Appellant stated that he was not aware of the Payor's overtime policy. He admitted that he did not submit a time sheet to the Payor for the work performed at home. In cross-examination, the Appellant took offence to the question as to the amount of time he took to have dinner at night. He refused to answer that question after the Court had asked him to reflect on his attitude during a recess and due to his refusal the cross-examination was not pursued on this matter.

[9] Mr. Tom Kingsbury, Human Resources Director, Engineer, submitted in evidence the pay record (Exhibit R-9) which shows that the Appellant was paid for 506 hours of work for a total remuneration of $22,628.32 during the period in question.

[10] This witness stated that the Appellant was not required to work overtime. He produced as Exhibit R-6 the Payor's overtime policy which states that the standard hours of work at Canac are 8 hours per day for a total of 40 hours per week. Canac compensates permanent and contractual employees for directed overtime hours worked beyond normal expectations for their positions. Supervisors are responsible for scheduling and pre-arranging all directed overtime.

[11] The Appellant stated that his overtime was authorized by the Payor's manager, Mr. Scott, but the time sheets, produced as Exhibit R-1, show that the Appellant worked 506 hours. Furthermore, there is no mention of overtime.

[12] The Appellant explained that he completed his work in three months instead of six months which explains the Appellant's overtime. Furthermore, the Appellant did not submit a time sheet to the Payor for the overtime work performed at home. The only record of his hours of overtime work performed at home is noted in his C.N. agenda. There is no explanation for the reason to work overtime from the very first day at work, that is March 31, 1998, and almost every day thereafter. The Court doubts that the Appellant was authorized by Mr. Scott to work overtime at the beginning of his work period.

[13] Section 9.1 of the Employment Insurance Regulations reads as follows:

"Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated."

[14] Subsection 10(1) of the said Regulations read as follows:

"Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment."

[15] The record of employment signed by the Payor shows that the Appellant worked for the Payor a total of 506 hours during the period in question. There is no mention in the said record of employment that the Appellant worked overtime. The Appellant was not remunerated for the overtime. The Appellant declared that there was no need to sue the Payor for the overtime.

[16] The Appellant had the burden of proof that he met the requirements of section 9.1 and subsection 10(1) of the Employment Insurance Regulations.

[17] The Appellant, therefore, worked for the Payor under a contract of service and he had a total of 506 hours in insurable employment during the period in question.

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

Signed at Ottawa, Canada, this 7th day of March 2000.

"J.F. Somers"

D.J.T.C.C.