Date: 20020506
Docket: A-106-01
Montréal, Quebec, May 6, 2002
Coram: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
LILIANE JEAN
Respondent
JUDGMENT
The application for judicial review is allowed without costs, the decision of the Deputy Tax Court Judge is set aside and the matter is referred back to the Tax Court of Canada for
re-hearing by a different judge.
"Alice Desjardins"
J.A.
Certified true translation
Sophie Debbané, LLB
Date: 20020506
Docket: A-106-01
Neutral citation: 2002 FCA 175
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
LILIANE JEAN
Respondent
Hearing held at Montréal, Quebec, on May 6, 2002.
Judgment delivered from the bench at Montréal, Quebec, on May 6, 2002.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20020506
Docket: A-106-01
Neutral citation: 2002 FCA 175
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
LILIANE JEAN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
on May 6, 2002.)
LÉTOURNEAUJ.A.
[1] In a brief judgment delivered orally from the bench, the Deputy Judge of the Tax Court of Canada set aside the determination of the Minister of National Revenue that Léopold Primard was engaged in insurable employment with the respondent within the meaning of the Employment Insurance Act, S.C. 1996, c. 23 (Act).
[2] The essence of the decision is found in the following passage:
[TRANSLATION] Having regard to all of the circumstances of this case, including the testimony, admissions and documentary evidence, I am satisfied that the appellant has succeeded in establishing, on a balance of probabilities, that there was no genuine contract of employment between herself and Mr. Primard during the period at issue.
[3] In Aubé v. A.G. Canada, A-761-97, May 26, 1998; Dion v. Minister of National Revenue, A-624-97, April 29, 1998; Gagnon v. Minister of National Revenue, A-625-97, April 29, 1998; and Potvin-Gagnon v. Minister of National Revenue, A-626-97, 29 April 1998, this Court set aside the decisions of the Deputy Judges of the Tax Court of Canada for failing to state adequate reasons. In fact, those decisions merely used boilerplate reasons similar to the ones used in this case, which do not indicate the underlying reasons for the decision.
[4] In Dion, supra, this Court stated:
After explaining the legal principles applicable in such matters from a purely theoretical standpoint and reproducing the Minister's allegations of fact from his Reply to the Notice of Appeal as well as the applicant's admissions at the hearing, the Deputy Judge of the Tax Court of Canada dismissed the appeal under subsection 70(2) of the Act on the following grounds alone:
[TRANSLATION] In view of the admitted facts, the testimony and the documentary evidence, I am not satisfied that the appellant has shown on a balance of evidence that the Minister's decision was made in a capricious or arbitrary manner considering all the facts
On an appeal under this subsection, the Tax Court of Canada is required to give reasons for its decision. In the instant case, the reasons do not tell the reader which evidence led the Judge to find as he did and, as Mr. Justice Hugessen wrote for this Court in Bonneau and Martin and Minister of National Revenue and Her Majesty the Queen (A-652-95 and A-653-95, February 12, 1997), which involved the same Deputy Judge, they do not say why he dismissed the applicant's appeal.
For example, some of the facts alleged by the Minister, which were crucial and necessary to arriving at his decision, were disputed by the applicant, and this challenge gave rise to different interpretations of the oral evidence and in all likelihood the documentary evidence too. However, the decision of the Tax Court of Canada is silent on this evidence, which is central to the case, and it was to be expected, at least where the more important evidence is concerned, that it would be appropriately addressed in the Judge's reasons considering his duty under the Act to give reasons for his decision
[5] Section 103 of the Act has continued the duty to give reasons that existed under subsection 70(2) of the former Unemployment Insurance Act, R.S.C. 1985, c. U-1. The fact that the Crown is the appellant rather than the taxpayer, as it was in the four decisions referred to supra, does not do anything to alter the duty imposed on the judge hearing an appeal under section 103. That duty was not discharged in this case. In the circumstances, it is impossible for us to determine whether the decision of the Tax Court of Canada is erroneous or unreasonable.
[6] We regret the inconvenience caused to the Crown and to the respondent, but in order to safeguard the right of appeal of the parties who may want to challenge an unfavourable decision for which reasons have been stated, we have no alternative but to allow the application for judicial review and refer the matter back to the Tax Court of Canada for re-hearing.
[7] For these reasons, the application for judicial review will be allowed, the decision will be set aside and the matter will be referred back to the Tax Court of Canada for re-hearing by a different judge. In the circumstances, the application will be allowed without costs.
"Gilles Létourneau"
J.A.
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF APPEAL
Date: 20020506
Docket: A-106-01
Between:
ATTORNEY GENERAL OF CANADA
Applicant
and
LILIANE JEAN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
COURT FILE NO.: A-106-01
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
LILIANE JEAN
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 6, 2002
REASONS FOR JUDGMENT OF THE COURT BY
LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
PELLETIER J.A.
DATED: May 6, 2002
APPEARANCES:
Marie-Andrée Legault FOR THE APPLICANT
Pierre D. Sauvé FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE APPLICANT
Pierre D. Sauvé
Montréal, Quebec FOR THE RESPONDENT
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