Dockets: A-24-16
A-25-16
A-26-16
A-27-16
Citation: 2016 FCA 291
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CORAM:
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GAUTHIER J.A.
TRUDEL J.A.
SCOTT J.A.
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BETWEEN:
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GILLES JEAN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
(Delivered from the Bench at Québec,
Quebec, on November 18, 2016)
SCOTT J.A.
[1]
This court has received four applications for
judicial review of four decisions rendered on December 17, 2015 by the
Appeal Division of the Social Security Tribunal (the Appeal Division),
dismissing the appeals initiated by the appellant against decisions rendered on
December 12, 2014 by the General Division of the Social Security Tribunal
(the General Division).
[2]
By order dated March 3, 2016, rendered by this
Court, the cases in docket numbers A-24-16, A-25-16, A-26-16 and A-27-16 have
been consolidated, and docket A-24-16 is considered the lead file. In accordance
with this order, these reasons dispose of these four applications for judicial
review.
[3]
After having applied the six criteria listed in
subsection 30(3) of the Employment Insurance Regulations,
SOR/96-332 (the Regulations), the General Division dismissed the appeal filed
by the appellant against a decision rendered on May 16, 2012 by the Canada
Employment Insurance Commission (the Commission). The Commission had found that
the applicant had made misleading statements by failing to declare his status as
a shareholder and partner in the companies he operates, Télédistribution de la
Gaspésie (TDG) and Les Placements Gilles Jean Inc., and by saying he was not
working, despite the fact that he occupied a management position year-round.
According to the Commission, he could not therefore be eligible to receive
Employment Insurance benefits from 2008 to 2011 inclusive.
[4]
The Appeal Division ruled that the General
Division’s decision was well founded because the applicant did not refute the
assumption of subsection 30(1) of the Regulations according to which he
had worked full working weeks because he was actively operating businesses even
if he was not receiving a salary during the four periods during which he
received a total of $71,981 in Employment Insurance benefits between 2008 and
2011.
[5]
The applicant submits that the Appeal Division
erred because he was not the one who operated the TDG company, in which he was
recognized as having insurable employment by the Canada Revenue Agency (CRA),
but rather 2545-3739 Québec Inc, a company in which he is a shareholder.
According to him, NCJ Educational Services Limited v. Canada (National
Revenue), 2009 FCA 131, [2009] 4 C.T.C. 290, a case decided by this Court, stands
for the suppletive character of the civil law. He argues that under civil law,
he could not be simultaneously bound both by an employment contract and a
contract for services with TDG. In short, he submits that he could not be
considered the operator and an employee of the same company.
[6]
He also contends that the Appeal Division erred
in refusing to intervene when the General Division failed to explain why it did
not accept his testimony and that of his partner, Mr. Mélançon.
[7]
The law is well settled: the standard of review
applicable to a decision of the Appeal Division is that of reasonableness (Canada
(Attorney General) v. Jean, 2015 FCA 242 at paragraph 14, 479 N.R. 280; Thibodeau
v. Canada (Attorney General), 2015 FCA 167 at paragraph 37, 477 N.R. 104).
[8]
We are all of the view that this application for
judicial review must be dismissed for the following reasons.
[9]
Because the applicant does not meet the
Regulations’ eligibility criteria, it was not necessary to distinguish between
the employment contract and the contract for services binding him to TDG. The civil
law is not applicable in this instance because the Regulations, more
specifically Section 30, contain a complete code for determining whether a
claimant is operating a business within the meaning of the Act, in which case
the claimant is deemed not to be unemployed.
[10]
In addition, it was reasonable for the Appeal
Division to apply the test propounded in Canada v. d’Astoli, 1997 CanLII
16849 (FCA) [D’Astoli]. The Canada Revenue Agency had determined that
the applicant had insurable employment; he had to satisfy the second step of
the test by demonstrating his eligibility for employment insurance. In D’Astoli,
we held that insurability and eligibility to Employment Insurance benefits are
two different steps that are assessed at different times. If follows that the
CRA’s statement on the applicant’s insurability under Section 90 of the Employment
Insurance Act, S.C. 1996, c. 23 cannot bind the Canada Employment Insurance
Commission in regard to eligibility to benefits under Section 30 of the
Regulations.
[11]
In this case, the Appeal Division and the
General Division made findings of fact warranted in view of the evidentiary
record. It follows that, in the absence of a reviewable error, an intervention
by our court is not warranted.
[12]
Finally, as mentioned at the hearing, in Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [2011] 3 S.C.R. 708, at paragraph 15 and 16, the Supreme Court of
Canada confirmed that the administrative decision-maker is not required, in his
own particular decision-making context, to provide a detailed explanation and
rationale as to why he refused to take a particular testimony into account.
[13]
For these reasons, the application for judicial
review is dismissed with costs set at $3000 including disbursements and taxes,
and in accordance with the March 3, 2016 Order of this Court, a copy of
these reasons must be placed in each docket.
“A.F. Scott”
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