Polat v. M.N.R., docket 96-402-UI

Date: 19980429

Docket: 96-402-UI

BETWEEN:

OZDEMIR POLAT,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

____________________________________________________

For the Appellant: The Appellant himself

Counsel for the Respondent: Eleanor Thorn

____________________________________________________

Reasons for Judgment

(Delivered orally from the bench at Toronto, Ontario on March 17, 1998)

Mogan, J.T.C.C.

[1]            The Appellant was a member of the Kurdish community in Turkey. He came to Canada in April 1992 applying for refugee status. That application took some time to process but, ultimately, the Appellant was granted refugee status on February 16, 1996. It is my understanding that, under the immigration laws of Canada, upon being granted refugee status, the Appellant became a landed immigrant but, prior to that time, the Appellant was an alien for immigration purposes pending the determination of his application for refugee status.

[2]            The Appellant worked for a number of weeks in July, August and September, 1994. When that work came to an end, he applied for unemployment insurance benefits but was denied. His appeal to this Court was heard by Taylor J. on November 1, 1996. On December 9, 1996, the Appellant's appeal was allowed because Judge Taylor concluded that there was an implied contract of service. That decision was appealed to the Federal Court of Appeal by the Attorney General of Canada and the appeal was heard and decided on December 4, 1997. The Federal Court of Appeal allowed the Crown's appeal with very brief reasons for judgment and referred the matter back to this Court for a redetermination in accordance with its reasons for judgment delivered in the appeal of Kathleen Still v. The Minister of National Revenue, 221 N.R. 127.

[3]            The Still appeal was allowed by the Federal Court of Appeal on November 24, 1997; and the appeal of Attorney General of Canada v. Ozdemir Polat, [1997] F.C.J. No. 1675, was allowed on December 4, 1997 (about 10 days later). The Still decision is relevant to this case because the circumstances are, in a broad sense, similar. Ms. Still came to Canada as an immigrant from the United States and applied for permanent residence status. On September 22, 1991, she was provided with a certain document by the immigration officials which is referred to in the decision of the Federal Court of Appeal. That document led Ms. Still to believe, rightly or wrongly, that she was eligible to apply for employment in Canada because it contained the statement that she "was eligible to apply for employment and/or student authorizations, as applicable".

[4]            Ms. Still acted in good faith and believed that the document entitled her to apply for employment. She required a work permit but was unsuccessful in obtaining one, however, she did obtain employment. I dismissed her appeal and held that she was not engaged in insurable employment. Also, I held that her contract was illegal under the immigration laws of Canada. My decision was reversed by the Federal Court of Appeal. In lengthy reasons for judgment, that Court set out the policy and considerations which should be followed when deciding whether unemployment insurance benefits should be denied to persons who were working in Canada as immigrants without having satisfied all of the legal requirements of the immigration laws which may include the obtaining of a work permit.

[5]            In this case, the Appellant came to Canada in April 1992. For the next couple of years, he was taking courses in English as a second language and was not working but on welfare for most of that period. He did obtain a work permit while taking his courses which authorized him to work on campus from August 16, 1993 to February 15, 1994. Obtaining that student authorization to work is significant because it does indicate that the Appellant had knowledge of the need to obtain some kind of authorization before he sought employment in Canada. The student authorization to work expired on February 15, 1994. According to the testimony of the Appellant, he applied for an extension of his student authorization to work but his application was rejected in the early part of July 1994. Counsel for the Respondent indicated in her questions to the Appellant that the rejection actually came on or about July 12, 1994 but there is no documentary evidence to support that. On the other hand, there is no evidence to the contrary.

[6]            On July 25, 1994, the Appellant began to work in Toronto for an organization known as Fabricated Plastics. He obtained this employment through some of his friends from the Kurdish community who were living in Toronto and already working at Fabricated Plastics. They informed the Appellant that there was work available and, as a result, he began work on July 25, 1994. The Appellant's Notice of Appeal refers to this work at Fabricated Plastics.

[7]            In reading the Appellant's Notice of Appeal and from listening to him in Court, it is obvious that he does not have a complete understanding of the English language. While he testified partly in English, there were other parts of his testimony which had to be given in his mother tongue and an interpreter was in Court for that purpose. I questioned the Appellant briefly at the commencement of the hearing and am satisfied that he does not have an adequate knowledge of the English language to present his appeal without an interpreter or to read and understand all of the documents which may have been put to him and that he may have signed in connection with any work.

[8]            The Appellant was not asked by counsel whether he had assistance drafting his Notice of Appeal. I draw the inference, however, that he must have had help because I think the phrasing of the document is beyond the Appellant's ability in terms of his facility with the English language, as demonstrated in Court. The second, third and fourth paragraphs of his Notice of Appeal state:

                I started working on the 25th of July, 1994. At that time, my employer did not ask whether I had a work permit since I had a Social Insurance Number. For the duration of my employment, I had all the same job responsibilities as other employees. Furthermore, I paid tax, UIC premiums, union dues and made CPP contributions.

                In addition, when I applied for an employment authorization, Immigration required that I fill in a form and pay a fee of $120. ... The application process took 13 weeks. In the interim, those 13 weeks of work were not counted towards my employment record.

                I would like to appeal the fact that I am being penalized for Immigration's slow processing of my employment authorization. Since this was my first job experience in Canada and I was not aware of UIC regulations regarding eligibility for benefits. As an immigrant, I have English language difficulties which include filling out forms and gaining employment.

I am confident that the Appellant had assistance in completing the Notice of Appeal but, at the same time, as a recitation of facts, he is bound by it and the document appears to be consistent with his oral testimony.

[9]            Having regard to the Still decision, the question is whether the Appellant is on all fours with what the Federal Court of Appeal decided. In allowing the Still appeal, the Court went to some length to give a wide-ranging judgment on cases of this kind because of the number that have come before this Court. In retrospect, this Court appears to have taken the relatively simplistic view that an immigrant who takes employment in Canada without having specific authorization is therefore engaged in an illegal contract. Under the common law, a person cannot benefit from his own illegal contract and unemployment insurance benefits were denied in this case because of the perceived illegality of the contract.

[10]          The Federal Court of Appeal stated very clearly that the simplification of the above thought process is not to be applied to persons coming to Canada as immigrants, and their cases have to be viewed on a case-by-case basis, adopting its guidance. Specifically, I refer to the following passages of Robertson J.A. in the Still decision:

... where a contract is expressly or impliedly prohibited by statute, a court may refuse to grant relief to a party when, in all of the circumstances of the case, including regard to the objects and purposes of the statutory prohibition, it would be contrary to public policy, reflected in the relief claimed, to do so."

... Public policy is, of course, a variable concept which is more easily illustrated than defined...In the present case, the public policy dimension manifests itself in two ways. The first is reflected in the strongly held belief that a person should not benefit from his or her own wrong. This is an alternative way of expressing moral disapprobation for wrongful conduct. The second rests in the understanding that relief should not be available to a party if it would have the effect of undermining the purposes or objects of the two federal statutes which are involved in this judicial review application. ...

The two statutes are the Unemployment Insurance Act (now the Employment Insurance Act) and the Immigration Act. After reviewing the facts of the Still appeal and the relevant provisions of the statutes, Robertson J.A. continued:

... In the end, public policy weighs in favour of legal immigrants who have acted in good faith. ...

I regard that comment as the dominant theme in allowing the Still appeal. Further, the Federal Court of Appeal referred specifically to the appeal of the Appellant, Ozdemir Polat, which was pending in that Court and heard within 10 days of issuing the Still decision. Robertson J.A. stated:

                Of the six cases decided by the Tax Court of Canada, only one involves a claimant who had not obtained a work permit. In Polat v Canada [1996] T.C.J. No. 1667, the claimant had applied for a work permit but commenced work prior to its issuance because he felt it was taking too long for the immigration officials to process his application. Though the claimant was successful before the Tax Court, we note that the reported facts lead one to conclude that he knew he was acting illegally. There is no indication of good faith on the part of the claimant in Polat as in the case before us. ...

Although the Federal Court of Appeal was specifically allowing the appeal by Kathleen Still in the circumstances of her case, that Court went out of its way to distinguish what it regarded as the good faith but innocent position of Ms. Still; and it contrasted her with the facts it already had before it in Mr. Polat's appeal.

[11]          As I have already stated, in the Still case, she obtained a document from Immigration Canada which indicated that she could apply for employment authorization but she misunderstood that and thought she could apply for employment itself. The Appellant herein had no such document. He came to Canada as a refugee applicant; he had no document from Immigration Canada but was knowledgeable of the fact that he needed a work permit in order to work. He obtained one as a student which ran from August 1993 to February 1994. He applied to have that extended and was told in early July 1994 that the student work permit would not be extended. He applied for a regular work permit and, on his own admission in his Notice of Appeal, impatient with the delays in Immigration Canada, he went to work on July 25, 1994.

[12]          The Appellant may have been impatient but the fact is that a work permit (Exhibit R-1) was issued to him on October 13, 1994 authorizing him to work for a six-month period from October 13, 1994 to April 12, 1995. Also, a second work permit (Exhibit R-2) was issued and authorized him to work for a 12-month period from February 28, 1995 to February 27, 1996. Therefore, Exhibit R-2 was issued while the Appellant was still authorized to work during the six-month period set out in Exhibit R-1.

[13]          I conclude on the basis of the Appellant's Notice of Appeal, his oral testimony, and the fact that he had student authorization forms, that he knew that he needed some kind of specific authorization to work in Canada. However, he proceeded to take the employment on July 25, 1994, knowing that it was not authorized because he had just been refused an extension of a student authorization. He states that he thought his social insurance number permitted him to work. I do not accept that as an explanation. He had a number of friends who were fellow countrymen from the Kurdish community in Turkey who were working at Fabricated Plastics and he had them to rely on.

[14]          While the Appellant's knowledge of the English language is something less than adequate, he would have known from the day-to-day contact with his co-workers who were familiar with his mother tongue that a social insurance number, by itself, would not permit an alien to work in Canada. I cannot accept the statement that he thought that the social insurance number permitted him to work. He knew that he needed a student authorization permit and indeed had one in the preceding year.

[15]          The Appellant said that he relied on his friends to fill out the forms. I can only assume that, unless there was an extended breach of the law by many of the people from the Appellant's community (all breaking the immigration laws to work as aliens without work permits), some of them had work permits while working at Fabricated Plastics and would have known of the need for such permits. He also stated that his employer could have asked him for his work permit. I do not know of any Canadian law which requires an employer to ask for a work permit just because an employee does not have a total facility in one of Canada's official languages.

[16]          In conclusion, I find that the Appellant's circumstances are different from those of Kathleen Still. She was not only acting in good faith but had a document from Immigration Canada which encouraged her to believe that she had the right to seek and take employment. The Appellant had no such document. He was not engaged in employment in the first two years of his being in Canada from the spring of 1992 until July 1994, subject to any employment he might have had on his student authorization from August 1993 to February 1994. The fact that he had that student authorization and any employment he might have had thereunder ought to have alerted him to the fact that when the authorization came to an end, he needed a further work permit before taking on additional employment.

[17]          The Federal Court of Appeal has indicated that, in its view, Mr. Polat knew that he was acting illegally taking employment without a work permit; and I have no reason to believe that that conclusion, although stated in the reasons for judgment of Kathleen Still, is not well founded. Indeed, having heard the evidence, I believe it is consistent with that finding. For this reason, I dismiss the appeal and hold that the Appellant was not entitled to unemployment insurance benefits as those benefits may have accrued in the period prior to October 13, 1994 when the Appellant, for the first time, had a regular work permit not restricted to his being a student.

Signed at Ottawa, Canada, this 29th day of April, 1998.

"M.A. Mogan"

J.T.C.C.