Date: 20000413
Docket: A-44-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
JOHANNE ASPIRO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Hearing held in Montréal, Quebec, Thursday, April 13, 2000
Judgment rendered at the hearing in Montréal, Quebec, Thursday, April 13, 2000
REASONS FOR JUDGMENT OF THE COURT: DÉCARY, J.A.
CONCURRING: LÉTOURNEAU, J.A.
DISSENTING: NOËL, J.A.
Date: 20000413
Docket: A-44-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
JOHANNE ASPIRO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced from the bench at the hearing in
Montréal, Quebec, Thursday, April 13, 2000)
DÉCARY J.A.
1. Mr. Justice Létourneau and I are of the opinion that this application for judicial review should be allowed.
2. Although the applicant is the daughter of the owner of the convenience store in which she has worked every summer for about fifteen years or so, the record disclosed that the employment of her daughter during the summer on the basis of a regular work schedule allowed the owner, whose business was open 12 months a year, seven days a week and 15 hours a day, to take a bit of vacation time and busy herself with the major housekeeping chores in her residence. The owner further testified that if she did not employ her daughter she would be employing someone else. The Minister did not allege that the salary paid to the applicant was inconsistent with the norms.
3. The Minister and the Tax Court of Canada judge in reality focussed solely on the duration of the employment in finding that the presumption against persons not at arm"s length under subparagraph 3(2)(c )(ii) of the Unemployment Insurance Act (the "Act") had not been rebutted. This, in our opinion, is a decisive error.
4. On the one hand, there is nothing in principle to bar an employee from qualifying for unemployment insurance benefits owing to the seasonal nature of his work or the fact that there is a family relationship between him and his employer, or because the period of employment, in this instance the summer, is not very different from the period during which a claimant must have worked if he is to be entitled to benefits.
5. On the other hand, there is nothing in the record or in the unrebutted allegations of the Minister that would allow a reasonable finding that in the circumstances, given in particular the remuneration paid, the terms and conditions of employment, and the nature and importance of the work performed, the applicant and her mother would not have entered into a substantially similar contract of employment if they had been dealing at arm"s length.
6. Furthermore, the judge clearly erred in his findings, particularly in relation to the duration of the applicant"s employment having regard to the minimum number of weeks required by the Act and in failing to understand that the reason why the applicant was working during the summer was not that there was more work at that time but rather the fact that the applicant"s father and mother devoted less time to the store during the summer.
7. The application for judicial review will be allowed, the decision of the Tax Court of Canada judge will be set aside, and the matter will be sent back to that Court for it to overrule the Minister"s determination and return the matter to him so that he may issue a re-determination on the assumption that the applicant held an insurable employment during the periods in question.
"I agree." "Gilles Létourneau"
J.A.
Certified true translation
Martine Brunet, LL.B.
Date: 20000413
Docket: A-44-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
JOHANNE ASPIRO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Hearing held in Montréal, Quebec, Thursday, April 13, 2000
Judgment rendered at the hearing in Montréal, Quebec, Thursday, April 13, 2000
REASONS DISSENTING FROM THE JUDGMENT OF THE COURT: NOËL, J.A.
Date: 20000413
Docket: A-44-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
JOHANNE ASPIRO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR DISSENTING JUDGMENT
(Pronounced from the bench at the hearing in
Montréal, Quebec, Thursday, April 13, 2000)
NOËL J.A.
8. I am unable to concur with the reasons of Décary J.A. In my opinion, the evidence before the trial judge indicated that the contract between Lisette Aspiro and her daughter Johanne would not have been entered into if they had been dealing at arm"s length. The trial judge had the advantage of hearing the witnesses, and he clearly did not believe Lisette Aspiro when she stated that she would have hired someone else during the summer period if her daughter had not been available. In this regard, it is not the task of the Court of Appeal to substitute its own opinion for that of the trial judge.
9. I would dismiss the application for judicial review, with costs.
Certified true translation
Martine Brunet, LL.B.
Date: 20000413
Docket: A-44-99
Montréal, Quebec, Thursday, April 13, 2000
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
JOHANNE ASPIRO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Tax Court of Canada judge is set aside, and the matter is sent back to that Court for it to overrule the Minister"s determination and return the matter to him so that he may issue a re-determination on the assumption that the applicant held an insurable employment during the periods in question.
Certified true translation
Martine Brunet, LL.B.
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