Date: 20031124
Docket: A-146-02
Citation: 2003 FCA 444
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
SERGE GAGNON
3875 Saint-Clément Street
Jonquière, Quebec G7X 2R8
Applicant
and
THE MINISTER OF NATIONAL REVENUE
represented by Morris Rosenberg,
Deputy Attorney General of Canada, whose
offices are located at 284 Wellington Street,
Ottawa, Ontario K1A 0H8
Respondent
Hearing held at Québec, Quebec, on November 24, 2003.
Judgment delivered from the bench at Québec, Quebec, on November 24, 2003.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20031124
Docket: A-146-02
Citation: 2003 FCA 444
CORAM: DÉCARY J.A.
LÉTOURNEAUJ.A.
NADON J.A.
BETWEEN:
SERGE GAGNON
3875 Saint-Clément Street
Jonquière, Quebec G7X 2R8
Applicant
and
THE MINISTER OF NATIONAL REVENUE
represented by Morris Rosenberg,
Deputy Attorney General of Canada, whose
offices are located at 284 Wellington Street,
Ottawa, Ontario K1A 0H8
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Rendered from the bench at Québec, Quebec, on November 24, 2003)
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
[1] Notwithstanding the submissions by the applicant's counsel, we have not been persuaded that there was reason to intervene in this matter where the deputy judge of the Tax Court of Canada (the judge) determined that the applicant "worked solely for his own business, set up by himself, using nominees who had no control over the business" and that as a result he was not a salaried employee in insurable employment during the period in dispute.
[2] The applicant alleges that the judge breached the rules of natural justice. This allegation is based, firstly, on an allegation that the judge had not allowed into evidence documents pre- and post-dating the period in issue tending to establish that, contrary to what was alleged by the respondent, the shareholders of the company Concept-Québec C.S. Inc. (the company) were actual managers and not nominees acting for and on behalf of the applicant.
[3] The problem with this first aspect of the allegation against the judge is twofold. On the one hand, the applicant did not file before our Court a detailed affidavit indicating the nature of these documents and their probative value. Nor did he elaborate on their relevance and on their admissibility. In the brief affidavit that he filed in support of his application, he merely reiterated that the judge had refused to admit exhibits designed to establish that Ms. Caroline Lévesque had played an active part in the company's management: see the Applicant's Record, page 22, paragraphs 4 and 5.
[4] On the other hand, these documents that were not introduced into evidence, like the many other documents that were nonetheless filed by the applicant, would have undoubtedly indicated that the acts or decisions were made by those that the respondent said were nominees. But they could not alone have established that the names of these people had not been borrowed for this purpose. That was at the heart of the dispute.
[5] Testimonial evidence established that the documents admitted into evidence signed by the shareholders were documents signed by and on behalf of the applicant. The judge believed this evidence and we cannot at this stage substitute his assessment with our own. In this testimony there was sufficient evidence to allow the judge to find that the presumptions alleged by the Minister had not been rebutted.
[6] Secondly, the applicant alleges that the judge had made up his mind from the outset about the applicant's role in the company and then failed to assess all of the evidence on this point.
[7] In our opinion, this allegation has no merit. As already stated, the testimonial evidence was important in this case in order to understand what position the applicant held in the company and to explain documents that seemingly would suggest that the applicant did not exercise control over the company. The judge considered this evidence and drew the inferences and conclusions that supported his ultimate finding on whether the employment was insurable.
[8] For these reasons the application for judicial review will be dismissed with costs.
"Gilles Létourneau"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-146-02
STYLE OF CAUSE: SERGE GAGNON v. THE MINISTER OF
NATIONAL REVENUE
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: November 24, 2003
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
REASONS FOR JUDGMENT
OF THE COURT: LÉTOURNEAU J.A.
DATE OF REASONS: November 24, 2003
APPEARANCES:
Christian Néron FOR THE APPLICANT
Valérie Tardif FOR THE RESPONDENT
SOLICITORS OF RECORD:
Christian Néron FOR THE APPLICANT
Québec, Quebec
Department of Justice - Canada FOR THE RESPONDENT
Montréal, Québec
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