Date: 19971110
Docket: A-937-96
CORAM: DENAULT, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
ALAN W. WILLIAMS
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at Calgary, Alberta on November 10, 1997.
Judgment delivered at Calgary, Alberta, on November 10, 1997.
REASONS FOR JUDGMENT
OF THE COURT BY: Décary, J.A.
Date: 19971110
Docket: A-937-96
CORAM: DENAULT, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
ALAN W. WILLIAMS
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary (Alberta)
on Monday, November 10, 1997
DÉCARY, J.A.:
[1] We are all of the view that this application for judicial review should be allowed.
[2] The applicant filed an appeal against a decision of the Minister of National Revenue ("the Minister") to the effect that he was an employee of Delvee Re-Education Inc. ("Delvee") and not an independent contractor. That appeal was heard at the same time as the appeals filed by Delvee against decisions of the Minister of National Revenue to the effect that Delvee was an employer for the purposes of the Unemployment Insurance Act. The applicant's appeal was dismissed by the Tax Court at the same time and for the same reasons as the Delvee appeals. In separate reasons this Court has today dismissed the application for judicial review filed by Delvee against the Tax Court decision (Files A-934-96, A-935-96 and A-936-96).
[3] The procedural history of the applicant's appeal against the decision of the Minister " as opposed to the procedural history of the Delvee appeals " is the distinguishing factor that has led this Court in this application to reach a result different from the one it has reached in the Delvee applications.
[4] The applicant filed his Notice of Appeal on January 31, 1995. The Notice of Appeal included eleven allegations of facts. The Minister failed to reply to the Notice of Appeal within the time allowed by the Tax Court Rules pertaining to Unemployment Insurance Appeals ("the Rules"). Section 15 of these Rules provides as follows:
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15. (1) Where a reply to a notice of appeal has not been served within the 60 days prescribed under paragraph 12(2)(a) or within such longer time as the Court may allow, the appellant may apply on motion to the Court for judgment in respect of the relief sought in the notice of appeal. |
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(2) On the return of the application for judgment the Court may |
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(a) permit the serving of the reply, |
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(b) direct that the appeal proceed to hearing on the basis that facts alleged in the notice of appeal are presumed to be true, |
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(c) allow the appeal if the facts alleged in the notice of appeal entitle the appellant to the judgment sought, or |
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(d) give such other direction as is just. |
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(3) The presumption in paragraph (2)(b) is a rebuttable presumption. |
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[5] The applicant, pursuant to Rule 15(1), made an application to the Tax Court for judgment. A Tax Court Judge declined to allow the appeal (as could have been done under Rule 15(2)(c)) and ordered, instead, under Rule 15(2)(b), that the appeal proceed to hearing on the basis that facts alleged in the Notice of Appeal are presumed to be true. It is common ground that such Order has the effect of shifting on the Minister the onus of disproving the appellant's allegations of facts.
[6] The applicant's appeal before the Tax Court was set down to be heard the same day as the Delvee appeals, all of which had already been consolidated by Order of the Tax Court. At the beginning of applicant's appeal, counsel for the Minister asked the Tax Court Judge to consolidate the applicant's appeal and the Delvee appeals. The applicant, who represented himself, opposed the consolidation on the ground, essentially, that because the onus in his own appeal was on the Crown, he would be prejudiced by the consolidation. The Tax Court Judge allowed the consolidation but in order to reassure the applicant he went on to explain to him that "if your evidence shows what you're alleging, then your case would be treated differently."
[7] It turns out, in our view, that the Tax Court Judge never lived up to his promise to treat the applicant's appeal differently; furthermore, he seems to have forgotten, from the above citation, that the onus, by virtue of Rule 15 (2) (b), had now shifted from the applicant to the respondent. He ended up dismissing the applicant's appeal for the same reasons he used to dismiss the Delvee appeals. The only words he had in respect of the applicant's appeal came in the last paragraph of his reasons and read as follows:
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With reference to Alan W. Williams (95-460(UI) and 95-31 (CPP)), the Court heard from Mr. Williams but came to the same conclusion that he was working for Delvee Re-Education Inc. under a contract of service and thus the second determination by the Minister was correct [...] |
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[8] The Tax Court Judge clearly did not put his mind to the applicant's appeal as he should have. Considering that the onus was on the Minister to disprove the applicant's allegations of facts, the Tax Court Judge should have examined the evidence that pertained to these allegations and related to the special circumstances of the applicant. The Tax Court Judge should have determined on the basis of that evidence whether or not the allegations had been disproved. We are therefore of the view that the matter should be referred back to the Tax Court for redetermination.
[9] The application for judicial review will therefore be allowed, the decision of the Tax Court will be set aside and the matter will be referred back to the Tax Court for redetermination.
"Robert Décary"
J.A.
FEDERAL COURT OF APPEAL
Date: 19971110
Docket: A-937-96
CORAM: DENAULT, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
ALAN W. WILLIAMS
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
Names of Counsel and Solicitors of Record
COURT FILE NO.: A-937-96
STYLE OF CAUSE: ALAN W. WILLIAMS v.
THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 10, 1997
REASONS FOR JUDGMENT
OF THE COURT BY: Décary, J.A.
DATED: November 10, 1997
APPEARANCES:
Mr. Peter Ridout for the Applicant
Mr. John O'Callaghan for the Respondent
SOLICITORS OF RECORD:
Barron & Barron
Calgary, Alberta for the Applicant
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent
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