CRA is now applying a “proportionate attribution approach” in applying the EIA s. 5(2)(b) test of “control … of … voting shares”

S. 5(2)(b) of the Employment Insurance Act provides that “Insurable employment does not include … the employment of a person by a corporation if the person controls more than 40% of the voting shares of the corporation.” Équipements Boifor, 2019 CAF 69 concluded that two shareholders did not have insurable employment by virtue of s. 5(2)(b) given that they controlled more than 40% of Boifor's shares, taking into account those individuals’ shares held indirectly through a holding corporation, even though the shares were held on a 50-50 basis and no one individually held control of the holding corporation.

In stating that it accepted Boifor, so that its previous position was reversed, CRA addressed the example of two 50-50 (or 51-49) shareholders of a Holdco wholly owning their employer (Opco), and stated:

In light of the FCA's decision, the CRA must now consider the proportionate attribution approach in similar situations to determine whether the employment of a person who controls more than 40% of the voting shares of the employing corporation is insurable. …

… The proportionate attribution approach leads to the conclusion that the two shareholders each control more than 40% of Opco's voting shares (50% of 100%) for the purposes of EIA paragraph 5(2)(b). …

… [W]here the shareholders held 51% and 49% of the voting shares of Holdco … their employment [also] would not be insurable because they had effective control of 51% and 49% of the voting shares of Opco … .

Neal Armstrong. Summary of 7 October 2020 APFF Roundtable Q. 6, 2020-0852181C6 F under EIA s. 5(2)(b).