Date:
20070611
Docket: A-189-06
Citation: 2007 FCA 227
CORAM: RICHARD
C.J.
LÉTOURNEAU J.A.
NADON
J.A.
BETWEEN:
MICHEL TREMBLAY
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Québec, Quebec, on June 11,
2007.)
LÉTOURNEAU J.A.:
[1]
The
appellant is appealing from a decision of a judge of the Tax Court of Canada
that the appellant’s employment was not insurable employment within the meaning
of the Employment Insurance Act, S.C. 1996, c. 23 (Act).
[2]
In doing
so, the judge confirmed the following claim of the Minister of National Revenue
(Minister): the appellant and the payer were not dealing with each other at
arm’s length, which is not being contested, and the Minister was satisfied that
it was not reasonable to conclude that they would have entered into a
substantially similar employment contract if they had been dealing with each
other at arm’s length within the meaning of paragraph 5(2)(i) and
subsection 5(3) of the Act.
[3]
There are
two grounds of appeal. According to the appellant, the Minister did not conduct
an investigation with respect to the appellant and the employer to verify the
facts alleged and to allow the parties to refute them. In the appellant’s view,
this constitutes a breach of the audi alteram partem rule.
[4]
In
addition, the appellant submits that the evidence adduced before the Tax Court
of Canada showed that the material facts relied on by the Minister did not
survive judicial scrutiny. According to the appellant, they were refuted to
such an extent that the Minister’s initial assessment and resulting conclusion
no longer appear to be reasonable.
[5]
We are not
convinced that the first ground of appeal affords a basis for our intervention.
The appellant was represented by counsel, who authorized the officer
responsible for conducting the investigation of the period in issue to base the
investigation on the facts and circumstances of the prior periods of
employment, which were also being contested by the appellant, in view of their
similarities. That is what the officer did.
[6]
In
addition, the appellant suffered no prejudice since he could bring before the Tax
Court of Canada any refutations and clarifications that he wished. In our
opinion, there was no breach of the audi alteram partem rule.
[7]
It remains
therefore to determine whether, at the conclusion of the judicial scrutiny, the
explanations provided by the appellant were sufficient to deny or refute the
allegations on which the Minister based his decision.
[8]
The
appellant’s counsel submitted that the judge was misled at paragraph 32 of his
decision when he said that he was of the opinion that the appellant’s Record of
Employment did not reflect reality. The respondent’s counsel acknowledged that
the calculation of remuneration and insurable hours ($22,182.74 for 1680 hours)
was accurate and in compliance with the Act. This finding of the judge
concerning this aspect of the Record of Employment will not be held against the
appellant.
[9]
The
justification for the judge’s finding that the appellant and the payer would
not have entered in a substantially similar employment contract if they had
been dealing with each other at arm’s length is found at paragraph 34 of his
decision, which reads as follows:
[34] One cannot disregard the
admissions made by the Appellant and by the payer’s representative when they
acknowledged that the Appellant made sales at a time that he was not being
remunerated. Not only did he render services to the payer without being
remunerated, but the sales were the basis on which his salary for the following
year was determined, which meant that the Appellant lost nothing during his
absence. It is during this wintertime absence that the Appellant did snow
removal work for his business. However, when he lost a major snow removal
contract in 2000, he went to work for the payer. If the payer had needed his
services during the winter of 2000, why did it not need then during the winters
of 1998 and 1999? No explanation was offered. In my opinion, the Appellant went
to work for his business during the winters of 1998 and 1999 because the
business wanted him, not because the payer had a work shortage. This was
obviously a possibility given the fact that he and his employer were not at
arm's length. In 2000, when the work diminished, he returned to work for
the payer. One cannot disregard the fact that the Appellant used his car
to the payer’s benefit free of charge. A person at arm's length would not have
accepted such terms and conditions of employment.
[10]
Despite
the praiseworthy efforts of the appellant’s counsel, we have not been convinced
that the findings of fact and of mixed fact and law at paragraph 34 did not
allow the judge to conclude as he did.
[11]
For these
reasons, the appeal will be dismissed with costs.
“Gilles
Létourneau”
Certified
true translation
Susan
Deichert, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-189-06
STYLE OF CAUSE: Michel
Tremblay v.
Minister of National Revenue
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 11, 2007
REASONS FOR JUDGMENT Richard C.J.
OF THE COURT BY: Létourneau J.A.
Nadon J.A.
DELIVERED FROM THE BENCH BY: Létourneau J.A.
APPEARANCES:
|
Frédéric St-Jean
|
FOR THE APPELLANT
|
|
Simon-Nicholas
Crépin
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Frédéric St-Jean
Québec, Quebec
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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