Rioux v. M.N.R., docket 96-678-UI

Date: 19971124

Dockets: 96-680-UI; 96-678-UI

BETWEEN:

NICOLE RIOUX, GUYLAINE COLLIN,

Appellants,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Prévost, D.J.T.C.C.

[1] These appeals were heard on common evidence as regards the testimony of the payer's representative and individual evidence for the remainder at Rimouski, Quebec on October 31, 1997.

[2] The first case concerns an appeal from a decision by the Minister of National Revenue ("the Minister") dated January 12, 1996 that the employment of the appellant Nicole Rioux with "Le Groupe Réjean Claveau Ltée", the payer, from March 8 to May 29, 1993, March 14 to June 18, 1994 and March 6 to June 17, 1995 was not insurable as it was employment in which the employee and employer were not dealing with each other at arm's length.

[3] The second case concerns an appeal from a decision by the Minister of the same date that the employment of the appellant Guylaine Collin with the payer from September 21 to December 12, 1992 and February 13 to May 6, 1995 was not insurable for the same reason.

[4] In the first case (96-680(UI)), paragraph 5 of the Reply to the Notice of Appeal reads as follows:

[TRANSLATION]

5. In arriving at his decision the respondent Minister of National Revenue relied inter alia on the following facts:

(a) the payer's present name results from an amendment to its articles dated December 31, 1982; (A)

(b) the payer's shareholders during the periods at issue were:

Réjean Claveau 60%

Pierrette Claveau, Réjean's wife 10%

Daniel Claveau, Réjean's brother 10%

Alain Claveau, Réjean's brother 10%

Nelson Claveau, Réjean's brother 10% (A)

(c) the appellant is Alain Claveau's wife; (A)

(d) the payer operated a business engaged in excavation, earth moving and snow removal and leased machinery; (A)

(e) the appellant's alleged duties were to compile the operating costs of three to six vehicles used for snow removal and to read magazines and newspapers so as to inform the payer; (APEASA)

(f) the appellant allegedly rendered services in the evenings, from 6:00 p.m. to 1:00 a.m.; (APEA)

(g) the appellant alleges that she received her orders from Pierrette Claveau on arrival at the payer's office; (APEAS)

(h) the appellant's salary was $748.80 every two weeks in 1993 and $769.60 in 1994 and 1995, and Pierrette Claveau's salary was $750; (APEE)

(i) the appellant's salary was high for the type of work performed; (D)

(j) during the periods at issue the appellant worked 12, 14 and 15 weeks respectively, and she needed 10, 10 and 12 weeks respectively to qualify for unemployment insurance benefits; (APEE)

(k) it is not reasonable to think that the appellant's compilation work took that many weeks; (D)

(l) the appellant's periods of employment did not correspond to the payer's busiest periods of activity for snow removal; (D)

(m) the hiring and laying off of the appellant did not correspond to the real needs of the payer's business but were actually designed to qualify her for unemployment insurance benefits; (D)

(n) the appellant and the payer entered into an arrangement to qualify the appellant for unemployment insurance benefits; (D)

(o) the payer and the appellant were not dealing with each other at arm's length within the meaning of the Income Tax Act; (D) and

(p) the payer would never have hired a person with whom it was dealing at arm's length on the same terms as those offered the appellant, still less for the periods concerned. (D)

[5] In the second case (96-678(UI)), paragraph 5 reads as follows:

[TRANSLATION]

5. In arriving at his decision the respondent Minister of National Revenue relied inter alia on the following facts:

(a) the payer's present name results from an amendment to its articles dated December 31, 1982; (A)

(b) during the periods at issue, the payer's capital stock was distributed as follows:

Réjean Claveau 60%

Pierrette Claveau, Réjean's wife 10%

Daniel Claveau, Réjean's brother 10%

Alain Claveau, Réjean's brother 10%

Nelson Claveau, Réjean's brother 10% (A)

(c) the appellant has been Nelson Claveau's de facto spouse since 1985; (A)

(d) the payer operates a business engaged in excavation, earth moving and snow removal, and leases machinery; (A)

(e) after 12 weeks of alleged employment with the payer the appellant received unemployment insurance benefits from December 8, 1991 to September 19, 1992; (NK)

(f) the appellant allegedly then worked for the payer again from September 21 to December 12, 1992; (A)

(g) the appellant then received unemployment insurance benefits until August 15, 1993; (A)

(h) the appellant took subsidized courses from September 5, 1993 to January 29, 1995, and received unemployment insurance benefits while doing so; (A)

(i) she was allegedly then re-hired by the payer for 12 weeks, the minimum necessary for her to again receive unemployment insurance benefits; (APEE)

(j) Réjean Claveau alleges that the appellant was hired to assist Pierrette Claveau, the payer's controller; (ACWAS)

(k) Réjean Claveau alleges that the main reason the appellant was hired was to answer the telephone; (ACWAS)

(l) the appellant alleges that she also opened mail and filed invoices; (ACWAS)

(m) the appellant alleges that she spent two to three hours a day filing invoices; (ACWAS)

(n) there was not enough filing to do to justify three hours of work every day; (D)

(o) the appellant alleges that she was supervised by Pierrette Claveau, who was in the payer's office the same hours that she was; (ACWANS)

(p) during the periods at issue the appellant received a salary of $374.40 a week and Pierrette Claveau received $375 a week; (FPA)

(q) when the appellant was hired in 1992 the payer already had a secretarial assistant who had been working for it since July 27, 1992; (A) and

(r) in these circumstances it is not reasonable to conclude that the appellant's contract of employment would have been substantially similar if she had been dealing with the payer at arm's length. (D)

[6] In the preceding extracts from the Replies to the Notices of Appeal the Court has indicated, in parentheses after each subparagraph, the comments made by counsel for the appellants at the start of the hearing:

(A) = admitted

(APEASA) = admitted in part except the word "alleged", and subject to amplification

(APEA) = admitted in part except the word "allegedly"

(APEAS) = admitted in part except the words "alleges that she"

(APEE) = admitted in part except the end

(D) = denied

(NK) = no knowledge

(FPA) = first phrase admitted

(ACWAS) = admitted, although changing the word "alleges" to "states"

Hearing

Common evidence of the appellants

According to Pierrette Claveau, the payer's comptroller:

[7] Her husband Réjean Claveau does indeed have absolute control over the payer.

[8] She looks after the office, which was initially in her home but was moved elsewhere in 1993.

[9] The payer started operations with a truck and tractor, but since then has made considerable progress.

[10] An impressive photo (Exhibit A-1) shows its existing equipment, consisting of about 20 units.

[11] The business currently employs four to eight heavy machinery operators.

[12] The duties entrusted to Nicole Rioux were as follows: compiling the operating costs of the vehicles used for snow removal, reading magazines and newspapers and maintaining telephone communication with the public and the operators, especially during the major snowstorms in the area.

[13] Ms. Claveau used to do this herself, but she was elected vice-president of the Association des propriétaires de machinerie lourde du Québec (Division déneigement) in the spring of 1993 and no longer had time to do it.

[14] She went all over the place to meet with contractors and was quite often absent doing so for two or three days, or even the whole week.

[15] That was why she hired Nicole Rioux, who had experience as she had worked in the past for Transport Bujold, where she also did compilation work.

[16] To do good work in this business, it is necessary to keep track of the cost of operating machinery, the men's time and the inherent expenses.

[17] For this, the payer has control sheets (Exhibit A-2a) on which the date, the machine used, the time of departure and return, the places where the work was done, the amount of fuel used, the number of buckets, the tonnage, the loading time, the operator's name, the road conditions and any other relevant observations always have to be indicated.

[18] Exhibit A-2a is blank, but Exhibit A-2b has been filled out and shows the result of this: it is clearly a daily control sheet.

[19] The purpose of this compilation is to know exactly what is going on when making bids.

[20] Furthermore, the Association has recommended that its members use control sheets like those filed as Exhibits A-2a and A-2b.

[21] The purpose of reading newspapers and magazines is to know what is happening in terms of bids and work throughout the province.

[22] The control sheets indicate whether abrasives or salt had to be applied: they are then summarized by month on a compilation sheet (Exhibit A-3).

[23] Before Nicole Rioux was hired it was Ms. Claveau who did this work, and since leaving the Association Ms. Claveau has been doing it herself once again.

[24] The compilation sheets (Exhibit A-3) are then summarized in another document (Exhibit A-4) that sets out all the particulars by vehicle and by period.

[25] When answering the telephone Nicole Rioux dealt with emergencies in the evenings. She also monitored the radiotelephone and radio communications: in this way she obtained information on road conditions.

[26] The payer performs snow removal near two hospitals and the entryways always have to be kept clear for ambulances and police vehicles.

[27] It was Ms. Claveau who hired Nicole Rioux, after consultation with the payer's board of directors, and Ms. Rioux was under her supervision.

[28] However, she does not recall how much Ms. Rioux was earning previously with Transport Bujold.

[29] As comptroller Ms. Claveau receives a fixed salary whether she works or not, and she was paid even when she was spending as much time as she did on the Association's business.

[30] The reason Nicole Rioux was always hired in March was that calls for tenders are generally made in the spring, in April, May and June, and it is necessary to be ready to bid.

[31] The respondent wrote in subparagraph (k) above that it is not reasonable to think that the appellant's compilation work took that many weeks, but compilation takes a very long time to do especially when you have to work despite the telephone calls and other interruptions that can occur in an office at any time.

[32] The reason he wrote in subparagraph (l) that Nicole Rioux's periods of employment did not correspond to the payer's busiest periods of activity in snow removal is that he is unaware that before February there is generally no accumulation of snow in the area although a few flakes might fall from time to time.

[33] [TRANSLATION] "We then pick up the drivers' reports and examine them in detail".

[34] The payer never intended to qualify Nicole Rioux for unemployment insurance benefits: it really needed her services.

[35] When someone is hired neither kinship nor friendship is taken into account.

[36] The reason Ms. Claveau had to leave the Association was that she could not really manage to carry on both of her occupations.

[37] Sheets A-2a and A-2b are filled out by the operators.

[38] The snow removal season begins in December and January and it is necessary then to patrol in the pick-up to check road conditions.

[39] After all this compilation work is completed, when calls for tenders are made [TRANSLATION] "we know the costs and act accordingly".

[40] When Ms. Claveau was serving as vice-president, if she was not always in the office while Nicole Rioux was working her husband was there and he supervised Ms. Rioux's work.

[41] When she was in the office, mostly on weekends, Ms. Claveau did see what work Nicole Rioux had done.

[42] During storms, roads might be closed and it is always necessary to be very alert.

[43] Nicole Rioux had experience and handled her work very well.

[44] In the late evening there were always "shift" changes in the hospitals and she had to ensure that the roads leading to them were clear.

[45] It was naturally a bit quieter in the office in the evenings and Nicole Rioux could work on compilations in peace.

[46] Nicole Rioux's services were of course no longer required when Ms. Claveau went back to full-time work in the payer's office.

[47] This appellant only compiled information on snow removal activities whereas, as comptroller, Ms. Claveau did so for construction as well.

[48] The duties entrusted to Guylaine Collin in 1992 involved acting as receptionist and reading specialized magazines and newspapers relating to construction.

[49] She looked after the mail and filed the accounts payable and accounts receivable.

[50] The payer had to move and there were boxes of documents to be sorted so as to transport as little as possible. Guylaine Collin looked after this; the business had started up in 1972 and was incorporated in 1982, so some cleaning up was necessary.

[51] Ms. Collin also answered the telephone.

[52] With four children at home there was not much space left in Ms. Claveau's residence, which is why the office had to be moved.

[53] Ms. Collin volunteered to transport boxes of records from the basement of Ms. Claveau's house to the payer's new office.

[54] The reason she was laid off in December 1992 was that she asked if she could take a full-time course in Mont-Joli: [TRANSLATION] "She was then laid off and went there".

[55] It was only on reading subparagraph (h) above of the Reply to the Notice of Appeal that Ms. Claveau learned that Ms. Collin had taken subsidized courses from September 5, 1993 to January 29, 1995 while receiving unemployment insurance benefits.

[56] After her courses the payer re-hired Ms. Collin on February 13, 1995, as Ms. Claveau was still with the Association, which she did not leave until the spring of 1995, when she could no longer really handle both jobs.

[57] At that time this second appellant was doing essentially the same work as before, except that there was also some catching up to do due to her many absences from the office.

[58] Ms. Collin's salary was determined after consultation with the board of directors.

[59] In consulting newspapers and magazines it is necessary to look at the headlines, extract what is of interest to the payer and then destroy the remainder.

[60] The two appellants worked for the payer concurrently for a very short period, from March 6 to May 6, 1995, and their work was quite necessary.

[61] The reason Ms. Claveau wrote on Ms. Collin's record of employment that she had been laid off because of a lack of work was that she wanted to support her return to school.

[62] The work she had for Ms. Collin with the payer could wait for a while.

Nicole Rioux's individual evidence:

[63] When she was with the payer she received instructions from Pierrette Claveau and worked in Ms. Claveau's office.

[64] She had previously worked from 1979 to 1985 for Transport Bujold, where she earned $350 a week.

[65] Her work for the payer related to snow removal activities; she compiled all the operations using Exhibits A-2, A-3 and A-4.

[66] There is really nothing to compile before February or March of each year.

[67] Although is true that it is easier to concentrate on compilation work in the evenings, her presence in the payer's office also had the advantage of ensuring that emergencies were handled.

[68] She did not work for the payer just to obtain the minimum number of weeks she needed to be eligible for unemployment insurance benefits, but did as whenever her employer actually needed her.

[69] During snowstorms she received a lot of telephone calls and one year there was even a storm with a foot of snow on Mother's Day in May.

[70] When Pierrette Claveau was looking after the Association's business she was often absent, it is true, but Ms. Rioux gave her the control sheets and Ms. Claveau checked her work on the weekends.

Guylaine Collin's individual evidence:

[71] In 1992 she worked in the payer's office: she filed documents and handled the accounts payable and accounts receivable.

[72] She was assigned to construction matters and was also made responsible for sorting and reorganizing the records: there were boxes and boxes of them.

[73] She later wanted to return to her accounting studies but to do this she first had to finish her Secondary V, which she did.

[74] Her further education took place at the Centre de formation des adultes in Mont-Joli.

[75] Then, in 1995, Ms. Collin returned to work for the payer in essentially the same duties, except that she handled its earth moving activities, which meant several telephone calls a day.

[76] She never made arrangements with the payer to qualify her for unemployment insurance benefits.

[77] She likes working and currently has two jobs, one in a restaurant and the other in a bar.

[78] In the spring of 1995 she might easily have received 20 or so calls a day and had to pass them on to the payer's garage for action to be taken.

[79] She also handled the reception duties and filing.

[80] When she was doing filing work in 1992 in the Claveaus' basement, where the payer's office was, she had to go upstairs to answer the telephone if it rang.

[81] Pierrette Claveau was in the payer's office when she was not looking after the Association's business and she supervised Ms. Collin's work.

Respondent's evidence

According to Rita Bolduc, an appeals officer at the relevant times and now a collection officer:

In Nicole Rioux's case:

[82] She spoke to Ms. Rioux on the telephone on December 20, 1995 and also spoke to Pierrette Claveau.

[83] From these telephone conversations she noted slight differences in Nicole Rioux's duties depending on whether they were described by Ms. Rioux or by Pierrette Claveau.

[84] Exhibits A-2a, A-2b, A-3 and A-4 were available to her when she conducted her investigation.

[85] Pierrette Claveau told her that Nicole Rioux might also have prepared some bids and helped with accounting.

[86] At one point during her telephone conversation with Pierrette Claveau, Ms. Claveau was no longer willing to talk to her and she therefore called Réjean Claveau to continue her investigation with him.

[87] Pierrette Claveau told her that she had answered all her questions and did not wish to repeat her answers again.

[88] It was clear that Ms. Claveau was exasperated at having to answer her questions.

In Guylaine Collin's case:

[89] Ms. Bolduc spoke to Ms. Collin as well.

[90] Ms. Collin told her that when she was filing she did not answer the telephone and that this work might take her two or three hours a day.

[91] She also told her that in a day she might have 50 or 60 invoices to file and might receive 20 to 30 telephone calls, and that the mail might amount to from five to 30 letters a day.

[92] Ms. Bolduc also spoke with Réjean and Pierrette Claveau.

[93] Her file did contain the information found in subparagraph (e) above of the Reply to the Notice of Appeal in Ms. Collin's case to the effect that after 12 weeks of alleged employment with the payer this appellant received unemployment insurance benefits from December 8, 1991 to September 19, 1992.

[94] She asked Pierrette Claveau for the cash receipts-disbursements journals and the invoices, but Ms. Claveau did not want to send them to her, alleging that she only made one monthly entry for all the invoices the payer received.

[95] Pierrette Claveau offered to let Ms. Bolduc send a representative to see the appropriate documentation, but Ms. Bolduc did not delegate anyone to do this.

Argument

According to counsel for the appellants:

[96] This is a private company which has made considerable progress, expanding from two to 20 heavy machinery units.

[97] The compilation of data is very important for the preparation of bids in order to try to obtain contracts.

[98] The consultation of newspapers and magazines is a very important means of knowing the market and the activities of competitors.

[99] It is necessary to operate on a provincial rather than a local scale to succeed in this industry.

[100] Nicole Rioux was fully prepared for this work as she had already done it for Transport Bujold.

[101] It was Pierrette Claveau who ran the payer's office as Réjean Claveau was always on the road.

[102] It is a large business and has to be very careful in preparing bids.

[103] Nicole Rioux earned $350 a week with Transport Bujold and some eight years later she earned $375, which means that there was nothing excessive in her salary in light of her duties.

[104] Pierrette Claveau had to leave the Association because she was needed in the office for both snow removal and construction activities.

[105] The appeals officer admitted that during her telephone conversation with Pierrette Claveau, Ms. Claveau became exasperated: she offered to let the officer send someone to see the boxes of documents but this invitation was not accepted.

[106] It would have been very costly to make photocopies of so much paperwork.

[107] In Thécla Simard v. M.N.R. (95-479(UI)), Judge Tardif of this Court wrote (at p. 3):

As the requisite degree of proof is proof on the balance of probabilities, not absolute proof, I have come to the conclusion that it is not unreasonable to think that persons dealing with each other at arm’s length could have entered into a substantially similar contract of employment.

[108] The work in the instant case was integrated and controlled, and there was good subordination and supervision.

[109] Bids are like case law: they are built up over time.

[110] The procedure set up at the payer's operation has been recommended by the Association.

[111] In Guylaine Collin's case the payer in 1992 was preparing a move from its office, where there were boxes of documents that had been kept for about 20 years: they had to be sorted so that as few as possible were moved.

[112] Guylaine Collin took care of this, in addition to her other duties: she did it, even if she was not dealing with the payer at arm's length.

According to counsel for the respondent:

[113] The Federal Court of Appeal's judgments in Ferme Émile Richard et Fils Inc. (A-172-94), Jencan Ltd. (A-599-96) and Bayside Drive-In Ltd. (A-626-96) make clear the scope of the Minister's discretion under s. 3(2)(c) of the Unemployment Insurance Act.

Also according to counsel for the respondent:

[114] It was admitted in both cases that the appellants were not dealing with the payer at arm's length.

[115] Appeals officers cannot travel about all the time to check documents on site as the cost would be prohibitive.

[116] There were many admissions in the replies to the notices of appeal and the subparagraphs denied initially were then proven.

[117] Guylaine Collin was not laid off in 1992 because of a lack of work but because she wanted to take courses.

[118] She returned to the payer over two years later and no one replaced her in the meantime.

[119] The appeals officer noted slight differences in Nicole Rioux's duties depending on whether they were described by Ms. Rioux or by Pierrette Claveau.

[120] The respondent concedes the existence of Simard, but in unemployment insurance matters each case stands on its own merits.

According to counsel for the appellants in reply:

[121] The admissions made in the replies to the notices of appeal concerned facts but there were denials on the essential points.

[122] In Nicole Rioux's case she did compilation work when there was such work to be done, and she stated that [TRANSLATION] "when there is nothing to compile no compilation is done".

Analysis

[123] The reasons given for having Nicole Rioux work from 6:00 p.m. to 1:00 a.m. seem quite valid in light of the payer's compilation and communications needs.

[124] The evidence is that this appellant received instructions from Pierrette Claveau or, sometimes, from Ms. Claveau's husband.

[125] Her pay was quite normal, especially as she had earned $350 a week eight years earlier at Transport Bujold.

[126] Nicole Rioux worked more than the number of weeks she needed to qualify for unemployment insurance benefits.

[127] The compilation work was described clearly by this appellant and by Pierrette Claveau and it is reasonable to believe, in view of Nicole Rioux's other duties, that the number of weeks she worked would be needed to do it.

[128] Pierrette Claveau explained clearly why the appellant had to work during the periods in question and her testimony on this point was quite logical and was not contradicted.

[129] The hirings and lay-offs corresponded to the actual needs of the business.

[130] The arrangement alleged in subparagraph (n) was denied and no evidence of it was submitted.

[131] If this appellant had not been there the payer would have had to hire someone else to do her work, and on substantially similar terms.

[132] It was undoubtedly because the payer paid careful attention to its costs that it grew as much as it did over the years.

[133] The reason Nicole Rioux could work in this way was because of her experience and because Pierrette Claveau had become the vice-president of the Association.

[134] The payer's compilation system is certainly very good, as the Association has recommended it to its members.

[135] In the construction industry it is not just useful but necessary to read newspapers and magazines so as to have a good idea of what is happening throughout the province.

[136] Pierrette Claveau's salary cannot be compared with that of Nicole Rioux as the comptroller is paid whether she works or not, which was not the case with Nicole Rioux.

[137] The Minister failed to take all the relevant circumstances into account in this appeal and also took irrelevant factors into account.

[138] No conclusion can be drawn from the slight differences between Nicole Rioux's duties as described by her or by Pierrette Claveau, as they are very minor.

[139] The weight of the evidence is that the appeals officer repeated the same questions to Pierrette Claveau so many times that she became exasperated.

[140] No conclusion can be drawn in this appeal from the fact that the officer did not see fit to send anyone to the payer's premises to look at its boxes of documents.

[141] As Judge Tardif wrote in Simard, it is not unreasonable to think that persons dealing with each other at arm's length could have entered into a substantially similar contract of employment.

[142] Nicole Rioux's appeal will therefore be allowed and the subject decision reversed in her case.

[143] However, the situation is different in Guylaine Collin's appeal.

[144] Ms. Collin claimed to have no knowledge of subparagraph (e) above, but she did not prove the contrary and it was she who had the burden of proof.

[145] The reason she stopped working for the payer at the end of the first period at issue was not because she was laid off but in fact because she wanted to return to school.

[146] During the second period at issue she clearly worked the necessary number of weeks to again be entitled to unemployment insurance benefits.

[147] Between these two periods no one replaced her at the payer.

[148] It was admitted that when this appellant was hired in 1992 the payer already had a secretarial assistant who had been working for it since July 27, 1992.

[149] Pierrette Claveau says that the work she had for Ms. Collin could wait, but over two years is a long time to wait.

[150] Guylaine Collin told the Court that when she was doing filing work in the basement in 1992 she went upstairs to answer the telephone, whereas she told Rita Bolduc that when she was doing filing work she did not answer it.

[151] Pierrette Claveau did not want to send the appeals officer the cash receipts and disbursements journals in which she could have seen and assessed Guylaine Collin's work.

[152] In Jencan the Honourable Chief Justice of the Federal Court wrote the following for the Court of Appeal (at p. 18):

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.

He added the following (at p. 25):

In other words, it is only where the Minister's determination lacks a reasonable evidentiary foundation that the Tax Court's intervention is warranted. An assumption of fact that is disproved at trial may, but does not necessarily, constitute a defect which renders a determination by the Minister contrary to law. It will depend on the strength or weakness of the remaining evidence. The Tax Court must, therefore, go one step further and ask itself whether, without the assumptions of fact which have been disproved, there is sufficient evidence remaining to support the determination made by the Minister. If that question is answered in the affirmative, the inquiry ends. But, if answered in the negative, the determination is contrary to law, and only then is the Tax Court justified in engaging in its own assessment of the balance of probabilities.

[153] In Bayside Drive-In Ltd., the Honourable Chief Justice of the Federal Court wrote the following (at pp. 9-10):

In this case, the Tax Court Judge concluded that his interference on appeal was justified because, in his opinion, the Minister had not given "sufficient importance to the work put in by the workers and their contribution to the Payor's success". The view that a failure by the Minister to give "sufficient importance" (i.e. weight) to specific facts is a ground for reversible error is not supported by the jurisprudence of this Court and, in my respectful view, is wrong in principle. By questioning not the relevance or truth of the facts relied upon by the Minister but simply the weight to be attached to the various facts otherwise properly considered, the Tax Court Judge, in effect, overruled the Minister's discretionary determination without first having concluded that the determination had been made in a manner contrary to law. In doing so, he improperly substituted his own independent assessment of the evidence for that of the Minister, thereby usurping the discretionary authority which Parliament clearly and unambiguously entrusted to the Minister.

[154] In Guylaine Collin's appeal the Minister did not act in bad faith, took all the relevant circumstances into account and did not take irrelevant factors into account.

[155] Furthermore, there is sufficient well-established evidence to support his decision.

[156] The Court does not have to question the importance or weight attached to the various facts which were properly considered by the Minister.

[157] Guylaine Collin's appeal must therefore be dismissed and the subject decision regarding her affirmed.

[158] For all these reasons, the Court allows Nicole Rioux's appeal and reverses the decision in her case, but dismisses Guylaine Collin's appeal and affirms the decision in her case.

"A. Prévost"

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 15th day of October, 1998.

Stephen Balogh, revisor