Date: 19971006
Docket: 96-1111-UI
BETWEEN:
EDNA WAY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgement
Cuddihy, D.J.T.C.C.
[1]
This appeal was heard in Gander, Newfoundland, on September 11,
1997.
I-
The appeal
[2]
This is an appeal from a determination by the Minister of
National Revenue (the "Minister") of April 26, 1996,
where it was determined that the Appellant's employment
with Judy Way (the "Payor") from May 23 to August
16, 1995, was not insurable within the meaning of the
Unemployment Insurance Act
(the "Act") because, according to the
Minister, the Appellant and the Payor were not dealing with each
other at arm's length within the meaning of paragraph
3(2)(c) of the Act and thus the said employment was
excepted.
II-
The facts
[3]
In rendering his decision the Minister relied on the facts and
reasons outlined in his Reply to the Notice of Appeal and
particularly in paragraph 7 as follows:
"(a) the
facts admitted and stated hereinbefore;
(b)
the Appellant is the mother-in-law of the Payor and the
grandmother of the child for whom she was to have provided
full-time child care services during the period in question;
(c) the Payor
required some assistance with housework and child care of her two
year old son for the duration of her pregnancy and for some time
after the birth of her three baby girls on October 18, 1995:
·
from the end of May to mid-August the Appellant purportedly lived
with the Payor and provided the needed assistance with the
housework and child care,
·
from mid-August to mid-September the Appellant's son was
home and provided the needed assistance with the housework and
child care,
·
from mid-September to the birth of the triplets a family friend
came to help out three times a week for only
3 1/2 hours and was not paid for her services,
·
from the birth of the triplets to the first week in November the
Payor's mother stayed with her and provided the needed
assistance with the housework and child care and was not paid for
her services;
(d)
during the thirteenth week period in question and in accordance
with the verbal agreement between them, the Appellant was
purportedly engaged by the Payor to work out of the Payor's
home caring for the Payor's child and doing some light
housework;
(e)
during the thirteenth week period in question and in accordance
with the verbal agreement between them, the Appellant was to be
paid erratically, with no set pay days, and no set method of
payment the gross amount of $400.00 per week based on a 40-hour
work week at the rate of $10.00 per hour, less an undisclosed
deduction for room and board;
(f)
the Payor's records do not indicate that payments were in
fact made to the Appellant;
(g)
the wage rate of $10.00 per hour that was to have been paid to
the Appellant was excessive in that it was higher than the
average wage rate paid to live-in nannies in the area (they
usually earn the minimum wage of $6.85 per hour less a deduction
for room and board when applicable);
(h)
if the Appellant would have actually received the total earnings,
including vacation pay, reported by the Payor on the
Appellant's Record of Employment in the amount of
$5,491.00, less an undisclosed deduction for room and board, for
the thirteenth week period in question, her total weekly earnings
would have been excessive in light of the fact that the Payor
could have hired a person with the Appellant's
qualifications but with whom dealings would have been at
arm's length at a considerably lower cost;
(i)
the Appellant required the number of weeks in question to qualify
for unemployment insurance benefits and the Payor was aware of
this fact prior to the Appellant's alleged engagement by
the Payor;
(j)
the alleged engagement of the Appellant by the Payor on a
full-time basis during the period in question was an
accommodation to qualify her for unemployement insurance
benefits;
(k)
the Appellant is related to the Payor within the meaning of the
Income Tax Act;
(l)
the Appellant is not dealing with the Payor at arm's
length;
(m)
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 not reasonable to conclude that the appellant and the Payor
would have entered into a substantially similar contract of
employment if they had been dealing with each other at
arm's length."
[4]
The Appellant admitted the allegations in subparagraphs (a) to
(c) and (k). The allegation in subparagraph (d), was admitted
with explanations to be given. The allegations in subparagraphs
(e) to (j), (l) and (m) were denied.
III-
The Law and Analysis
i)
Definitions from the Unemployment Insurance Act
"employment" means the act of employing or the
state of being employed;
"Insurable employment"
Subsection 3(1) reads as follows:
"3. (1) Insurable employment is employment that is not
included in excepted employment and is
(a)
employment in Canada by one or more employers, under any express
or implied contract of service or apprenticeship, written or
oral, whether the earnings of the employed person are received
from the employer or some other person and whether the earnings
are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise;
..."
"Excepted employment"
Subsection 3(2) reads in part as follows:
"(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,
(i)
the question of whether persons are not dealing with each other
at arm's length shall be determined in accordance with the
provisions of the Income Tax Act, and
(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 ..."
(d)
the employment of a person by a corporation if the person
controls more than forty per cent of the voting shares of that
corporation;"
ii)
Definitions from the Income tax Act
Arm's length and Related persons
Section 251 of the Income Tax Act reads in part as
follows:
"Section 251. Arm's length.
(1)
For the purposes of this Act,
(a)
related persons shall be deemed not to deal with each other at
arm's length; and
(b)
it is a question of fact whether persons not related to each
other were at a particular time dealing with each other at
arm's length.
(2)
Definition of "related persons". For the purpose of
this Act, "related persons", or persons related to each
other, are
(a)
individuals connected by blood relationship, marriage or
adoption;
(b)
a corporation and
(i)
a person who controls the corporation, if it is controlled by one
person,
(ii)
a person who is a member of a related group that controls the
corporation, or
(iii) any
person related to a person described in subparagraph (i) or
(ii) ..."
[5]
The Appellant has the burden of proving her case. Each appeal
however must be decided on the facts particularly established and
on its own merits.
[6]
It is the determination of the Minister that is appealed. In the
case of Sylvie Desroches v. M.N.R. (A-1470-92), at
page 3 of the Reasons for Judgement, Desjardins, J.A. of the
Federal Court of Appeal says:
"...However, in the final analysis, as this Court held in
Attorney-General of Canada v. Jacques Doucet, it is the
Minister's determination which is at issue, namely that the
employment was not insurable because the applicant and the payer
were not bound by a contract of service. The function of the Tax
Court of Canada judge extended to considering the record and the
evidence in its entirety. Accordingly Marceau J.A., speaking for
the Court, said the following in Doucet:
The judge had the power and duty to consider any point of fact or
law that had to be decided in order for him to rule on the
validity of that determination. This is assumed by s. 70(2) of
the Act and s. 71(1) of the Act so provides
immediately afterwards...
The trial judge could go as far as deciding that there was no
contract between the parties..."
[7]
If there is a doubt in the interpretation, it must favour the
claimant and there is nothing that prevents a taxpayer from
benefitting from a social program if the requirements of the law
are respected. This is what Judge Hugessen, F.C.A., described in
Attorney General of Canada v. Rousselle et al., decision
of October 31, 1990 (124 N.R. 339):
"I do not think it is an exaggeration to say, in light of
these facts, that if the respondents did hold employment this was
clearly "convenience" employment, the sole purpose of
which was to enable them to qualify for unemployment insurance
benefits. These circumstances certainly do not necessarily
prevent the employment from being insurable, but they imposed on
the Tax Court of Canada a duty to look at the contracts in
question with particular care; it is apparent that the motivation
of the respondents was the desire to take advantage of the
provisions of social legislation rather than to participate in
the ordinary operation of the economic forces of the market
place."
[8]
The Court therefore has a duty to scrutinize with care the
conditions of the relations between a worker and a payor in every
case.
[9]
Furthermore, subsections 70(2) and 71(1) of the Unemployment
Insurance Act grant to the Tax Court broad remedial powers
that would permit the Court to resolve any dispute of a factual
nature and to reverse, affirm or vary the Minister's
determinations.[1]
[10] The
Appellant was heard in support of her appeal. Exhibits A-1, R-1
to R-5 were filed in the Court record.
[11] The
Appellant, Edna Way, is the mother of William Way, who
is married to Judy Way (the "Payor").
[12] The Payor
became pregnant with triplets. She was advised by her doctor that
she would require assistance with housework and child care of her
two year old son for the duration of the pregnancy.
[13]
William Way, the husband of the Payor, was teaching full
time from September to June. He was planning to pursue his
studies to obtain a master's degree during the summer
months of 1995, at the University of Indiana, Illinois. It was
not shown for how may weeks he was away nor when he left.
However, he returned home on August 15, 1995, when the Appellant
was laid-off. The evidence would further indicate that he must
have left sometime in June, if he was teaching in Scarborough for
the school year.
[14] The facts
relied upon by the Minister were that the Payor required some
assistance with housework and child care of her two year old son
for the duration of her pregnancy and for some time after the
birth of her three baby girls on October 18, 1995. From the end
of May to mid- August, the Appellant lived with the Payor and
provided the needed assistance with the housework and child care.
From mid-August to mid-September, the Appellant's son was
home and provided the needed assistance with the housework and
child care. From mid-September to the birth of the triplets, a
family friend came to help out three times a week for only 3
½ hours and was not paid for her services. From the birth
of the triplets to the first week in November, the Payor's
mother stayed with her and provided the needed assistance with
the housework and child care and was not paid for her
services.
[15] During
the thirteen week period in question and in accordance with the
agreement between them, the Appellant was engaged by the Payor to
work out of the Payor's home caring for the Payor's
child and doing all the other work that needed to be done.
[16] The
Appellant at the hearing denied the allegations of the Minister
outline above in subparagraphs (e) to (m) of the Reply.
[17] The
Minister alleged that during the thirteen week period in
question, the Appellant was to be paid erratically, with no pay
days, and no set method of payment, the gross amount of $400.00
per week based on a forty-hour week at the rate of $10.00 per
hour, less an undisclosed deduction for room and board. The
Minister also said that the Payor's records did not
indicate that payments were in fact made to the Appellant. He
also alleged that the rate of $10.00 per hour was excessive in
that it was higher than the average wage rate paid to live-in
nannies in the area and that the Payor could have hired a
non-related person at a lower cost.
[18] The
Appellant stated that she was paid by cheque. She could not
remember the amounts of the cheques. She said that she was paid
$400.00 gross per week, less room and board. She said that she
gave the Payor three cheques in the amount of $135.77, $306.00
and $152.00 and that she wrote out one cheque to the Receiver
General; these cheques were to pay her premiums for unemployment
insurance premiums, Canada Pension Plan and income tax payments.
She said that her room and board cost $80.00 per week, which
would leave her $320.00 a week.
[19] In
cross-examination, she was shown the summary of her earnings that
were provided the Minister (Exhibit R-1). She said that she
worked eight hours every day from 7:00 am to 3:00 pm, 40 hours a
week. After those hours she "stayed put", took care of
the meals and bathed the child. She stated that on Saturdays and
Sundays, she also took care of the Payor and the child and that
she worked for more than 40 hours but was paid for only 40 hours.
In June and July, she worked eight hours a day and in August, she
worked 10 hours a day.
[20] She was
also shown her record of employment (Exhibit R-2). At this stage
she said that she was not always paid 40 hours; if the Payor
decided to give more money, she received it. Her pay cheque was
not the same each month. She prepared her record of employment
and did the payroll. She was paid on August 2 and 8 and
September 10, 1995. She said that there had to be another cheque
which appeared to indicate that she would have received four pay
cheques.
[21] The
Appellant was to be paid $400.00 gross a week, less $80.00 for
room and board, for a five-day week, 40 hours per week. No
cheques were provided to the Minister. The summary of earnings
(Exhibit R-1) shows gross earnings of $5,491.00 from May to
August. This amount is also shown in the record of employment
(Exhibit R-2) for a work period of 13 weeks. The amount of
$5,491.00 for 13 weeks is $422.40 a week. The room and board
(Exhibit R-1) from May to August amounts to $1,108.27 or $85.25 a
week, or $12.17 a day. The document filed by the Appellant, from
a hiring agency, Selective Personnel (Exhibit A-1), does not
indicate what is deducted for room and board.
[22] The
evidence of the Appellant shows that she was paid $10.56 an hour
for 40 hours of work per week. When one compares the summary of
earnings (Exhibit R-1) to the record of employment (Exhibit R-2),
to the application for benefits (Exhibit R-4) and to the
evidence, one cannot conclude that the Minister was wrong when he
alleged that the Appellant was paid erratically with no set pay
days. The fact that no cheques were produced does not mean that
the money was not paid, but not having the cheques permitted the
Minister to allege that the Payor's records did not
indicate that payments were in fact made. If one relies on the
summary of earnings (Exhibit A-1), there should be in existence
four cheques covering the pay period in the amounts and the dates
set out in the net pay column. This was lacking. The evidence of
the Appellant to the effect that she paid the Payor her
contribution for unemployment insurance premiums and Canada
Pension Plan would also be noted by the Minister as not being the
normal situation of an unrelated employee.
[23] The other
main concern of the Minister was the Appellant's pay rate
in relation to live-in nannies in the area, who are paid $6.85 an
hour, the minimum wage less room and board when applicable. The
Appellant inquired at several businesses and produced a document
(Exhibit A-1), referred to earlier. This document does not
mention the cost of room and board nor the salary of the person
to be hired. It does mention however a finder's fee.
The argument, I assumed from the Appellant, was that if an
employer was to pay a finder fee on top of the salary, it
would cost more to hire someone from one of these agencies than
what she was earning.
[24] A salary
of $6.85 an hour for 40 hours of work would cost $274.00 a week.
If an employer were to hire live-inn help at $274.00 a week and
pay the equivalent of one month's salary as a finder
fee, he or she would pay the finder fee of $1,096.00
($274.00 X 4) plus $3,562.00 (13 weeks X $274.00) being a total
of $4,658.00. This would be $833.00 less than the $5,491.00, the
Appellant received from the Payor. May I add however that when
the Minister compares a salary for the purposes of the
unemployment insurance plan set up by Parliament, he would not
normally take into account a finder fee since that would
not form part of the employee's salary. It is the salary of
a worker that is insurable and the premiums paid are based on
that salary. The salary or wages paid also determines the amount
of benefits paid in the event of a loss of employment.. It is
possible therefore to conclude that a salary of $274.00 a week
would be less than the agreement between the Payor and the
Appellant. This evidence would confirm that the Minister took
into account the average wage rate of live-in nannies in the area
and such an employee would not have received $10.00 an hour and
would have cost less when based on a five day 40 hour week.
[25] Two other
allegations upset the Appellant. The first one was where the
Respondent alleged that the Appellant required the number of
weeks in question to qualify for unemployment insurance benefits
and the Payor was aware of this fact prior to the
Appellant's alleged engagement by the Payor. This
allegation concerns the Payor and she was not heard at the
hearing, so it would be difficult for the Court to put this
allegation aside when the person to whom it is addressed (the
Payor), is not there to explain it.
[26] The other
allegation that the Appellant did not accept was where the
Minister stated that the engagement of the Appellant by the Payor
on a full-time basis was an accommodation to qualify her for
unemployment insurance benefits.
[27] The
Appellant was truly upset about this last allegation because she
felt that she was being accused of having done something
dishonest. This, may I say, was not the case. What the Minister
had to decide was whether the employment was to be excepted or
included in insurable employment. The language used may sometimes
surprise people, however, the Appellant interrupted her
unemployment insurance claim period, accepted work with her
daughter-in-law, advised the unemployment insurance office of her
departure and her arrival. No doubt the work period of the
Appellant for the Payor would, in the normal course of events, be
applied to a new claim on the expiration of the claim that had
been interrupted. This additional fact would have been known to
the Appellant and the Respondent and could lead the Appeals
Officer to allege that the employment was convenient for those
purposes, when all the facts were examined. This is not an
allegation of dishonesty
[28] Did the
Minister except the Appellant's employment within the
meaning of subparagraph 3(2)(c)(ii) of the Act?
[29] The
Federal Court of appeal in Attorney General of Canada and
Jencan Limited [2] has outlined the principles which must guide the Tax
Court when dealing with an appeal under 3(2)(c)(ii)
of the Act as follows:
"The decision of this Court in Tignish,
supra, requires that the Tax Court undertake a two-stage
inquiry when hearing an appeal from a determination by the
Minister under subparagraph 3(2)(c)(ii). At the first
stage, the Tax Court must confine the analysis to a determination
of the legality of the Minister's decision. If, and only
if, the Tax Court finds that one of the grounds for interference
are established can it then consider the merits of the
Minister's decision. As will be more fully developed below,
it is by restricting the threshold inquiry that the Minister is
granted judicial deference by the Tax Court when his
discretionary determinations under subparagraph
3(2)(c)(ii) are reviewed on appeal. Desjardins J.A.,
speaking for this Court in Tignish, supra,
described the Tax Court's circumscribed jurisdiction at the
first stage of the inquiry as follows:
...Subsection 71(1) of the Act provides that the
Tax Court has authority to decide questions of fact and law. The
applicant, who is the party appealing the determination of the
Minister, has the burden of proving its case and is entitled to
bring new evidence to contradict the facts relied on by the
Minister. The respondent submits, however, that since the present
determination is a discretionary one, the jurisdiction of the Tax
Court is strictly circumscribed. The Minister is the only one who
can satisfy himself, having regard to all the circumstances of
the employment, including the remuneration paid, the terms and
conditions and importance of the work performed, that the
applicant and its employee are to be deemed to deal with each
other at arm's length. Under the authority of Minister of
National Revenue v. Wrights' Canadian Ropes Ltd.,
contends the respondent, unless the Minister had not had regard
to all the circumstances of the employment (as required by
subparagraph 3(2)(c)(ii) of the Act), has
considered irrelevant factors, or has acted in contravention of
some principle of law, the court may not interfere. Moreover, the
court is entitled to examine the facts which are shown by
evidence to have been before the Minister when he reached his
conclusion so as to determine if these facts are proven. But if
there is sufficient material to support the Minister's
conclusion, the court is not at liberty to overrule it merely
because it would have come to a different conclusion. If,
however, those facts are, in the opinion of the court,
insufficient in law to support the conclusion arrived at by the
Minister, his determination cannot stand and the court is
justified in intervening.
In my view, the respondent's position is correct in law...[3]
In Ferme Émile Richard v. M.N.R., this Court
confirmed its position. In obiter dictum, Décary
J.A. stated the following:
As this Court recently noted in Tignish Auto Parts Inc. v.
Minister of National Revenue, July 25, 1994, A-555-93,
F.C.A., ... an appeal to the Tax Court of Canada in a case
involving the application of s. 3(2)(c)(ii) is not an
appeal in the strict sense of the word and more closely resembles
an application for judicial review. In other words, the court
does not have to consider whether the Minister's decision was
correct: what it must consider is whether the Minister's
decision resulted from the proper exercise of his discretionary
authority. It is only where the court concludes that the Minister
made an improper use of his discretion that the discussion before
it is transformed into an appeal de novo and the court is
empowered to decide whether, taking all the circumstances into
account, such a contract of employment would have been concluded
between the employer and employee if they had been dealing at
arm's length.[4]
Section 70 provides a statutory right of appeal to the Tax Court
from any determination made by the Minister under section 61,
including a determination made under subparagraph 3(2)(c)(ii).
The jurisdiction of the Tax Court to review a determination by
the Minister under subparagraph 3(2)(c)(ii) is circumscribed
because Parliament, by the language of this provision, clearly
intended to confer upon the Minister a
discretionary power to make these determinations.
The words "if the Minister of National Revenue is
satisfied" contained in subparagraph 3(2)(c)(ii) confer upon
the Minister the authority to exercise an administrative
discretion to make the type of decision contemplated by the
subparagraph. Because it is a decision made pursuant to a
discretionary power, as opposed to a quasi-judicial decision, it
follows that the Tax Court must show judicial deference to the
Minister's determination when he exercises that power.
Thus, when Décary J.A. stated in Ferme
Émile, supra, that such an appeal to the Tax
Court "more closely resembles an application for judicial
review", he merely intended, in my respectful view, to
emphasize that judicial deference must be accorded to a
determination by the Minister under this provision unless and
until the Tax Court finds that the Minister has exercised his
discretion in a manner contrary to law.
If the Minister's power to deem "related
persons" to be at arm's length for the purposes of
the UI Act is discretionary, why, one might ask, does the
right of appeal to the Tax Court under section 70 apply to
subparagraph 3(2)(c)(ii) at all? The answer is that even
discretionary powers are subject to review to ensure that they
are exercised in a judicial manner or, in other words, in a
manner consistent with the law. It is a necessary incident of the
rule of law that all powers granted by Parliament are of an
inherently limited nature. In D.R. Fraser and Co. Ltd. v.
Minister of National Revenue, Lord Macmillan summarized the
legal principles which ought to govern such review. He
stated:
The criteria by which the exercise of a statutory discretion
must be judged have been defined in many authoritative cases, and
it is well settled that if the discretion has been exercised bona
fide, uninfluenced by irrelevant considerations and not
arbitrarily or illegally, no court is entitled to interfere even
if the court, had the discretion been theirs, might have
exercised it otherwise.[5]
Lord Macmillan's comments were quoted with approval by
Abbott J. of the Supreme Court in Boulis v. Minister of
Manpower and Immigration.[6] See also Friends of the Oldman River Society
v. Canada (Minister of Transport)[7] and Canada v. Purcell.[8]
Thus, by limiting the first stage of the Tax Court's
inquiry to a review of the legality of ministerial determinations
under subparagraph 3(2)(c)(ii), this Court has merely applied
accepted judicial principles in order to strike the proper
balance between the claimant's statutory right to have a
determination by the Minister reviewed and the need for judicial
deference in recognition of the fact that Parliament has
entrusted a discretionary authority under this provision to the
Minister.
On the basis of the foregoing, the Deputy Tax Court Judge was
justified in interfering with the Minister's determination
under subparagraph 3(2)(c)(ii) only if it was established that
the Minister exercised his discretion in a manner that was
contrary to law. And, as I already said, there are specific
grounds for interference implied by the requirement to exercise a
discretion judicially. The Tax Court is justified in interfering
with the Minister's determination under subparagraph
3(2)(c)(ii) - by proceeding to review the merits of the
Minister's determination - where it is established that the
Minister: (i) acted in bad faith or for an improper purpose or
motive; (ii) failed to take into account all of the relevant
circumstances, as expressly required by paragraph 3(2)(c)(ii); or
(iii) took into account an irrelevant factor."
[30] The Tax
Court in dealing with an appeal under subparagraph
3(2)(c)(ii) of the Act must undertake a two-stage
inquiry.
[31] The Tax
Court is justified in interfering with the Minister's
determination only if it is established that the Minister
exercised his discretion in a manner that was contrary to law.
The Tax Court is justified in interfering with the
Minister's determination under subparagraph
3(2)(c)(ii) by proceeding to review the merits of the
determination where it is established "that the Minister:
(i) acted in bad faith or for an improper purpose or motive; (ii)
failed to take into account all of the relevant circumstances as
expressly required by paragraph 3(2)(c)(ii); or (iii) took
into account and irrelevant fact".
[32] In other
words, the Court does not have to consider whether the
Minister's decision was correct. What the Court must consider
is whether the Minister's decision resulted from the proper
exercise of his discretionary authority.
[33] It is
only where the Court concludes that the Minister made an improper
use of his discretion that the discussion before it is
transformed into an appeal de novo and the Court is
empowered to decide whether, taking all the circumstances into
account, such a contract of employment would have been concluded
between the employer and the employee, if they had been dealing
with each other at arm's length.
[34] The
Act confers on the Minister the obligation of analyzing
all the circumstances surrounding the employment and, not only,
but including the rate of pay, the terms, the conditions, the
duration, the nature and the importance of the work performed.
This does not mean that persons who are related are not eligible
for unemployment insurance benefits under the Act, but in
order to qualify the legislator has in the Act defined the
process. The legislation has also used the wording
"substantially similar contract of employment" which
does not confer the meaning of exactly the same to
identical.
[35] In this
case the nature and importance of the work of the Appellant were
very important and exceptional. This Court cannot overlook the
personal dedication of the Appellant.
[36] The
Minister looked at the following facts: the Appellant's
remuneration, the terms and conditions of her employment, the
method of payment, the numerous hours worked beyond the 40-hour
work week, the replacement by others who were not paid, the
payment by the Appellant to the Payor of her own contributions
for Unemployment Insurance and Canada Pension Plan, the records
of the Payor not showing the payment of the salary, the
comparison made with similar types of employment in the area, the
letter of the Appellant's son sent to the Respondent in
December 1995, (who wished that the only two persons interviewed
guarantee staying for a period of twelve weeks and could not
accept other employment while working ), and the uncertain
duration of her son's absence from home (was it twelve or
thirteen weeks) which was the main reason for her employment. The
Appellant's son did not want a person that would
"quit" while he was away. One can readily understand
this but what if the person hired did not meet the Payor's
expectations while he was away?
[37] The
Minister had to ask himself; would these conditions and
circumstances of employment be present if the employee was not
related? The Minister decided that they would not. Did the
Minister use his discretion properly?
[38] All these
facts would demonstrate that the Minister took into consideration
all the circumstances of the employment of the Appellant and that
the decision was not contrary to law.
[39] The
Appellant, therefore, has not demonstrated that the Minister
acted in bad faith or for an improper motive or purpose, or that
he took into consideration irrelevant facts or that he failed to
take into account all of the relevant circumstances.
[40] A final
argument of the Appellant was that she was under the impression
of being discriminated against. This question was debated before
in relation to subparagraph 3(2)(c)(ii) of the
Act.
[41] With
respect to section 15 of the Charter, Judge Archambault of
this Court in Thivierge v. Minister of National Revenue
(1994), T.C.J. No. 876, found that the revised subparagraph
3(2)(c)(ii), as we now know it and as reproduced at the
beginning of this decision, did not contravene with section 15 of
the Charter and was not disciminatory. I agree with that
finding.
[42] This
Court has not been shown any legal reason to intervene in the
Respondent's determination.
IV-
Decision
[43] The
appeal is dismissed and the determination of the Minister is
affirmed.
"S. Cuddihy"
D.J.T.C.C.
Email this Content