Date: 19980611
Docket: A-130-97
CORAM: STONE J.A.
DENAULT J.A. (ad hoc)
LINDEN J.A.
BETWEEN:
WILGA PARRILL
Appellant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at St. John's, Newfoundland, Thursday, June 11, 1998.
Judgment delivered from the Bench at St. John's, Newfoundland, Thursday, June 11, 1998.
REASONS FOR JUDGMENT OF THE COURT
Date: 19980611
Docket: A-130-97
St. John's, Newfoundland, Thursday, this 11th day of June 1998.
PRESENT: STONE J.A.
DENAULT J.A. (ad hoc)
LINDEN J.A.
BETWEEN:
WILGA PARRILL
Appellant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
JUDGMENT
The section 28 application is dismissed.
"A.J. Stone"
J.A.
Date: 19980611
Docket: A-130-97
CORAM: STONE J.A.
DENAULT J.A. (ad hoc)
LINDEN J.A.
BETWEEN:
WILGA PARRILL
Appellant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland,
on Thursday, June 11, 1998.)
STONE J.A.
1 This section 28 application and the applications in Court File Nos. A-131-97, A-132-97, A-133-97, A-134-97, and A-135-97 were heard together. They raise a common issue. A copy of the reasons for judgment in this matter will therefore be filed in each of the other matters and, upon filing, shall become the reasons for judgment in each of those matters.
2 The principal issue here is whether the learned Deputy Tax Court Judge erred in determining that the applicant was not engaged in "insurable employment" during the relevant periods because he was engaged in "exempted employment" within the meaning of paragraph 3(2)(c) of the Unemployment Insurance Act in that he and his employer were "not dealing with each other at arm's length". The conclusion that the dealings were not at arm's length was based on the provisions of subparagraph 3(2)(c)(i) of the Act and paragraph 251(1)(b) of the Income Tax Act. The latter paragraph reads as follows:
251(1) For the purposes of this Act,
...
(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.
3 Nothing in the record suggests that the applicant and his employer were related to each other. Accordingly, it fell to the Deputy Tax Court Judge to determine on the evidence before him whether as a matter of fact the dealings were at arm's length.
4 In his decision, the Deputy Tax Court Judge had regard to decided cases which inunciate a variety to tests for determining whether dealings are at arm's length. There is no need to cover the same ground here. At the same time, it must be remembered that the onus rested on the applicant to establish on a balance of probabilities that he and his employer did in fact deal at arm's length and therefore that he qualifies to receive benefits under the Act in respect of the disputed employment.
5 The applicant contends that the Deputy Tax Court Judge committed various errors of law with respect to the application of the law to the facts of the case. We are unable to agree that this is so. We would note at the outset that the Judge had obvious reservations with respect to some of the evidence which was adduced by finding it to be "not too convincing", and, more importantly, that the "testimony of George Caines and John Dredge must be viewed with caution". Mr. Caines was the applicant's employer and Mr. Dredge a competitor of Mr. Caines. Their evidence was clearly key components of the applicant's case.
6 The Court's conclusion appears to be based primarily on the variation in the applicant's wages between the fall and winter of each year. While it was claimed that the applicant worked full-time during the fall and part-time during the winter at a lower rate of pay, the Deputy Tax Court Judge, who saw and heard the witnesses, was plainly not satisfied that there was any change in the duties of the applicant between September of one year and June of the next. Nor did the Judge confine himself to the oral evidence. For example, as appears at pages 11-12 of his decision, financial records of the employer did not convince him "that there [was any] significant peaks in the business income ... which would account for the increase in wages and the need for services".
7 In our view, therefore, it has not been demonstrated that the Deputy Tax Court Judge committed any reviewable error in determining that the applicant and his employer were not dealing with each other at arm's length during the relevant period. Put another way, no basis has been shown on this particular record including the findings of fact, for interfering with the decision of the Tax Court of Canada.
8 The section 28 application will therefore be dismissed.
"A.J. Stone"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980611
Docket: A-130-97
BETWEEN:
WILGA PARRILL
Appellant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-130-97
STYLE OF CAUSE: WILGA PARRILL
- and -
THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: St. John's, Newfoundland
DATE OF HEARING: June 11, 1998
REASONS FOR JUDGMENT STONE J.A.
OF THE COURT: DENAULT J.A. (ad hoc)
LINDEN J.A.
DELIVERED BY:
DATED: June 11, 1998
APPEARANCES:
Mr. Wayne White for the Applicant
Mr. Peter J. Leslie for the Respondent
SOLICITORS OF RECORD:
Mr. Wayne White for the Applicant
Barristers and Solicitors
11 Church Hill
St. John's, NF
A1C 3Z7
Mr. Peter J. Leslie for the Respondent
c/o Department of Justice
Suite 1400, Duke Tower
5251 Duke Street
Halifax, NS
B3J 1P3
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