Simard v. Canada (Attorney General), 2003 FCA 410

Date: 20031103

Docket: A-579-02

Citation: 2003 FCA 410

CORAM:        DÉCARY J.A.

NOËL J.A.

NADON J.A.

BETWEEN:

MICHEL SIMARD

Applicant

and

THE ATTORNEY GENERAL

OF CANADA

Respondent

Hearing held at Montréal, Quebec, on November 3, 2003.

Judgment from the bench at Montréal, Quebec, on November 3, 2003.

REASONS FOR JUDGMENT OF THE COURT:                                                            DÉCARY J.A.

Date: 20031103

Docket: A-579-02

Citation: 2003 FCA 410

CORAM:        DÉCARY J.A.

NOËL J.A.

NADON J.A.

BETWEEN:

MICHEL SIMARD

Applicant

and

THE ATTORNEY GENERAL

OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on November 3, 2003)

DÉCARY J.A.

[1]        This Court was not persuaded that, in the circumstances of the case at bar, the Tax Court of Canada judge erred in concluding that the applicant, who operated a skidder owned by his own company, was not an employee for the purposes of the Employment Insurance Act.

[2]        Based in particular on the wording of the only contract entered in evidence, titled [TRANSLATION] "Hiring of personnel services", it was entirely reasonable to conclude that the applicant was actually an employee of the company, rather than an employee of the forestry cutting business with which the company had concluded the contract. Accordingly, the judge properly concluded at paragraph 36 of his reasons that:

[TRANSLATION]

The appellant's real employer was 2425-9483 Québec Inc., but . . . that employment is not insurable because the appellant controlled over 40% of the company's voting shares.

[3]        The application for judicial review will be dismissed with costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF APPEAL

                                                          SOLICITORS OF RECORD

DOCKET:                                                                           A-579-02

(APPEAL FROM TAX COURT OF CANADA DECISION OF SEPTEMBER 9, 2002, CASE No. 2000-4739 (EI))

STYLE OF CAUSE:                                                          MICHEL SIMARD

v.

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                   Montréal, Quebec

DATE OF HEARING:                                                     November 3, 2003

REASONS FOR JUDGMENT OF THE COURT:     DÉCARY J.A.

DELIVERED FROM THE BENCH (BY):                   DÉCARY, NOËL, NADON JJ.A.

APPEARANCES:

Gilles Nadon                                                                         FOR THE APPLICANT

Nathalie Labbé                                                                      FOR THE RESPONDENT

Julie David

SOLICITORS OF RECORD:

OUELLET, NADON & ASSOCIÉS                                 FOR THE APPLICANT

Montréal, Quebec

MORRIS ROSENBERG                                                    FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec