Docket: 2011-1731(EI)
BETWEEN:
GALINA MILOVA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal
heard on March 2, 2012, at Toronto, Ontario.
Before: The Honourable
Justice Robert J. Hogan
Appearances:
|
For the Appellant
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Stephen Oakey
|
____________________________________________________________________
JUDGMENT
The appeal made by the Appellant under the Employment
Insurance Act, S.C. 1996, c. 23 for the period November 5, 2008 to November
5, 2010 is dismissed and the decision rendered by the Minister of National
Revenue on May 12, 2011 is confirmed.
Each party is to bear to their own costs.
Signed at Ottawa, Canada,
this 9th day of March 2012.
“Robert J. Hogan”
Citation: 2012 TCC 76
Date: 20120309
Docket: 2011-1731(EI)
BETWEEN:
GALINA MILOVA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Hogan J.
[1]
This is an appeal of a
decision by the Minister of National Revenue (the “Minister”) dated May 12,
2011 that the Appellant’s employment with 4240022 Canada Inc. (the “Payer”) for
the period November 5, 2008 to November 5, 2010 was excluded from insurable
employment.
[2]
In determining that the
Appellant was not engaged in insurable employment, the Minister relied on the
following assumptions of fact:
The Payer
(a) the Payer was incorporated on January 10,
2005;
(b)
the Payer’s business activity was new material
research and development;
(c)
the nature of the Payer’s business operation
was:
(i)
public and government relations;
(ii)
research pertaining to optical devices;
(iii)
security in science and technology;
(iv)
sensitive motion networks;
(v)
protection of intellectual property;
(vi)
marketing; and
(vii)
financial and legal services;
(d)
the Appellant was the sole shareholder of the
Payer;
(e)
the Appellant controlled 100% of the voting
shares of the Payer;
(f)
the Appellant controlled the day-to-day
operations and made the major business decisions for the Payer;
(g)
the Payer filed corporate tax returns for the
2005 to 2009 taxation years with corporate income being reported as “nil”;
The Appellant
(h)
the Appellant was the sole director of the
Payer;
(i)
the Appellant was the president of the Payer;
(j)
the Appellant had sole signing authority on the
Payer’s bank account;
(k)
the Appellant’s duties included:
(i)
performed banking;
(ii)
performed communication functions, which
included searching, consulting, networking, participating in meetings and
seminars;
(iii)
prepared reports, proposals and agreements; and
(iv)
formulated projects and did marketing;
(l)
the Payer provided the Appellant with a
computer, fax machine, desk, and chair necessary for her to perform her duties.
(m)
the Payer did not charge the Appellant for the
use of the above tools and equipment listed in the above subparagraph 18(l);
(n)
the Appellant performed her duties at the
Payer’s office, which was also her personal residence located at 1212-3000 Dufferin St., North York, Ontario;
(o)
the Appellant performed her duties seven days a
week, between the hours of 6:00 a.m. and 10:00 p.m.;
(p)
the Appellant’s hours of work were not recorded;
(q)
the Appellant was not paid for any work she
completed for the Payer for the Period;
(r)
the Appellant did not receive any bonuses,
vacation pay or paid vacation leave;
(s)
the Appellant reported income of $0.00 on her
personal income tax returns for the 2009 and 2010 taxation years;
(t)
the Payer did not issue any T4 slips or T4A
slips to the Appellant for the Period;
(u)
the Payer was responsible for the costs to
repair and maintain the computer, fax machine, desk and chair (if any); and
(v)
the Payer paid for the Appellant’s telephone,
fax and transportation expenses.
[3]
The Minister
determined that the Appellant’s employment was excluded under paragraph 5(2)(b)
of the Employment Insurance Act because the Appellant controlled more
than 40% of the voting shares of the Payer. Paragraph 5(2)(b) provides
that employment is not insurable when the employee holds more than 40% of the
voting shares of a company and the employee can exercise these voting rights.
The Appellant admits that she held 100% of the voting shares of the Payer in
the period under review.
[4]
Therefore it is clear
that the Appellant’s employment with the Payer for the period of November 5,
2008 to November 5, 2010 was excluded from insurable employment.
[5]
The Appellant’s appeal
is dismissed for this reason. Each party is to bear their own costs.
Signed at Ottawa, Canada, this 9th
day of March 2012.
“Robert J. Hogan”
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