Date: 20040331
Docket: A-422-02
Citation: 2004 FCA 139
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
MABEL PUGLIESE
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at Toronto, Ontario, on March 30th, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on March 30th, 2004 .
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 20040331
Docket: A-422-02
Citation: 2004 FCA 139
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
MABEL PUGLIESE
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, on March 30, 2004)
DÉCARY J.A.
[1] In deciding that the applicant was not employed in insurable employment, pursuant to paragraph 3(1)(a) of the Unemployment Insurance Act, the Minister relied on the assumption, amongst others, that the applicant did not work for the payer during the period at issue and did not receive any remuneration.
[2] The Tax Court Judge stated, and correctly so, that it was incumbent on the applicant to produce evidence sufficient to refute the assumptions made by the Minister and he went on to find that there was "no evidence of sufficient weight to prove that the [applicant] had entered into a contract of employment with the Payer either express or implied or written or oral".
[3] Whether the applicant was employed and remunerated is a question of fact. Findings of fact are the province of the trial judge and in the absence of an error of law or of a palpable and overriding error in the findings of fact this Court will not intervene. In our opinion the Judge considered all the evidence before him and, having reviewed it, decided that the applicant had not discharged the onus of proving on the balance of probabilities that she was employed as she alleged. We do not agree with the applicant that the Judge required as a matter of law that her testimony had to be corroborated.
[4] The application for judicial review will be dismissed with costs.
"Robert Décary"
J.A.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: A-422-02
STYLE OF CAUSE: MABEL PUGLIESE Applicant
and
THE MINISTRY OF NATIONAL REVENUE
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 31, 2004
REASONS FOR ORDER
AND ORDER BY: (DECARY, EVANS, PELLETIER JJ.A.)
APPEARANCES BY:
Mabel Pugliese FOR THE APPLICANT
Jenna Clark FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mabel Pugliese
Concord, Ontario FOR THE APPLICANT,
ON HER OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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