Date: 20030916
Docket: A-246-02
Citation: 2003 FCA 338
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
RICHARD CHOUINARD
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
Hearing held at Québec, Quebec, on September 16, 2003.
Judgment from the bench at Québec, Quebec, on September 16, 2003.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20030916
Docket: A-246-02
Citation: 2003 FCA 338
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
RICHARD CHOUINARD
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, Quebec,
on September 16, 2003)
LÉTOURNEAU J.A
[1] We are satisfied that the findings in Théberge v. MNR, [2002] FCA 123, delivered after the judgment a quo, apply to the facts in the case at bar and that counsel for the respondent did not succeed in showing that they should not.
What a claimant does outside the period during which he or she is employed in what the Minister considers to be insurable employment can be relevant, for example, to verify that the claimant is unemployed, to determine the amount of his or her benefits, or to establish his or her period of employment. However, for the purposes of the exception provided in paragraph 3(2)(c) of the Act, what a claimant does outside of his or her period of employment will be of little relevance when, as in this case, it is not alleged that the salary paid during the period of employment took into account the work performed outside of that period, that the applicant had included, in the hours spent on his or her insurable employment, hours worked outside of the period, or that work performed outside of his or her period of employment had been included in the work performed during his or her period of employment. It seems to me to be self-evident, and this is confirmed by the evidence, that in the case of family businesses engaged in seasonal work, the minimal amount of work that remains to be done outside the active season is usually performed by family members, without pay. Excepting seasonal employment, in a family farm business, on the ground that cows are milked year-round amounts, for all practical purposes, to depriving family members who qualify by working during the active season of unemployment insurance and to overlooking the two main characteristics of such a business: that it is a family business and a seasonal business.
[2] For these reasons, the application for judicial review will be allowed with costs, the decision of the deputy judge set aside and the matter referred back to the Chief Justice of the Tax Court of Canada, or to a judge designated by him, to be again decided on the basis that the applicant held insurable employment during the periods at issue.
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"Gilles Létourneau"
J.A.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-246-02
STYLE OF CAUSE: RICHARD CHOUINARD
v.
THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: September 16, 2003
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
REASONS FOR JUDGMENT OF THE COURT:
DATE OF REASONS:
APPEARANCES:
Jérôme Carrier FOR THE APPLICANT
Michel Lamarre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rochon, Belzile, Carrier, Auger et associés FOR THE APPLICANT
Québec, Quebec
Department of Justice - Canada FOR THE RESPONDENT
Montréal, Quebec
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