Date:
20020522
Docket:
2000-1795-EI
BETWEEN:
ULYSSE
LEBLANC,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent.
Reasons for
Judgment
Savoie,
D.J.T.C.C.
[1] This appeal was heard in Moncton,
New Brunswick, on March 12, 2002.
[2] This is an appeal from a decision
by the Minister of National Revenue (the "Minister")
that the Appellant was engaged with J & S Lumber Co. Ltd.,
the Payor, in insurable employment during 18 weeks from July 18,
1994 to November 18, 1994, during 22 weeks from June 5, 1995 to
November 3, 1995 and during 29 weeks from June 3, 1996 to
December 21, 1996 (the "periods in question") and that
his insurable earnings totalled $10,500.00, $13,430.00 and
$9,224.60 for 1994, 1995 and 1996 respectively.
[3] In making his decision, the
Minister relied on the following assumptions of fact:
a) the Payor
is a corporation duly registered in the Province of
New Brunswick engaged in a logging operation;
b) the
Appellant was hired by the Payor as a woodcutter;
c) the
Appellant performed services for the Payor under a contract of
service;
d) the Payor
reported the Appellant's periods of employment as
14 consecutive weeks from August 15, 1994 to
November 18, 1994; 17 consecutive weeks from July
10, 1995 to November 3, 1995; and 18 consecutive weeks
from July 15 to November 15, 1996;
e) each year
in question, the following amount of wood was scaled in the name
of the Appellant prior to and after the period of employment
reported by the Payor:
1994
week
ending
number of cords
December
10
11.88
December
17
24.07
December
24
42.59
December
31
8.34
1995
week
ending
number of cords
June
10
11.99
June
17
24.75
June
24
13.29
July
1
21.89
July
8
2.25
November
11
22.66
November
18
4.25
November
25
23.42
December
2
47.42
December
9
25.63
December
16
40.13
December
30
43.36
1996
week
ending
number of cords
June
3
23.46
June
15
1.41
July
13
10.77
November
23
6.77
November
30
22.75
f) the
Payor's production 1996 reports for the Appellant indicate
that 163.44 cords of wood were scaled in the Appellant's name
after December 14, 1996, for wood cut on Block 111, Hell's
gate which was cut between December 13, 1996 and February 14,
1997;
g) the
Appellant started cutting wood prior to and continued to work
after the periods reported by the Payor;
h) the
Minister allowed that the amount of wood scaled each year after
November 18, 1994 and November 3, 1995 could have been cut prior
to those dates;
i) the
Minister allowed that the amount of wood scaled after December
21, 1996 but prior to January 1, 1997, could have been cut prior
to those dates;
j) as
shown in Schedule A and B, the amounts of insurable earnings
reported by the Payor on the Appellant's Records of
Employment and on his T4s each year do not reflect the actual
amounts paid to the Appellant or the amounts of wood recorded in
the production reports;
k) the
number of insurable weeks and the amount of insurable earnings
reported on the Records of Employment issued by the Payor to the
Appellant are incorrect.
[4] The Appellant admits all
assumptions of fact relied upon by the Minister with the
exception of subparagraphs j) and k) about which he professes to
have no knowledge and subparagraphs f) and g) which he admits
generally but wishes to add that although he began to work prior
to the period in question, his employment ceased on November 15,
1996.
[5] That was the extent of the evidence
produced by the Appellant at the hearing. The Minister's
counsel even declined the Court's invitation to
cross-examine the Appellant.
[6] On the other hand, Joanne
Robichaud, appeals officer at Canada Customs and Revenue Agency
for the (HRDC) testified at the hearing for the Respondent. As
well, the Court received in evidence the relevant documents
covering the periods in question, such as the production records
of the worker, his records of employment and the cheques he
received from the employer. All of these have contributed to
establish the Minister's position and more appropriately his
assumptions of fact upon which he relied to make his
decision.
[7] As was stated by this Court on
numerous occasions, the case of Elia v. Canada (Minister of
National Revenue - M.N.R.), [1998] F.C.J. No. 316 decided by
the Federal Court of Canada, stands for the proposition that the
Minister's assumptions of fact are taken to be admitted by
the Appellant unless he specifically disproves them. This, the
Appellant has failed to do.
[8] Furthermore, the evidence called by
the Respondent and the documentary proof received in evidence was
conclusive in advancing the Minister's conclusion to an
extent far exceeding the standard of proof required of
him.
[9] Consequently, the appeal is
dismissed and the decision of the Minister is
confirmed.
[10]
The Appellant was engaged by the Payor in insurable employment
within the meaning of paragraph 3(1)(a) of the
Unemployment Insurance Act for the periods in question
until June 29, 1996 and within the meaning of
paragraph 5(1)(a) of the Employment Insurance
Act during the period from June 30, 1996 to
December 21, 1996, for a total of 18 weeks for
1994, 22 weeks for 1995 and 29 weeks for
1996.
[11]
Further, the
Appellant's insurable earnings for the periods in question
consisted of all the amounts paid to him as shown on Schedules A
and B attached to the Reply to the Notice of Appeal, including
the payroll deductions reported by the Payor, for a total of
$10,500.00 in 1994, $13,430.00 in 1995 and $9,224.60 in
1996.
Signed at Grand-Barachois,
New Brunswick, this 22nd day of May 2002.
D.J.T.C.C.
COURT FILE
NO.:
2000-1795(EI)
STYLE OF
CAUSE:
Ulysse LeBlanc and M.N.R.
PLACE OF
HEARING:
Moncton, New Brunswick
DATE OF
HEARING:
March 12, 2002
REASONS FOR JUDGMENT
BY: the Honourable Deputy Judge S.J.
Savoie
DATE OF
JUDGMENT:
May 22, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent: Stéphanie
Côté
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-1795(EI)
BETWEEN:
ULYSSE
LEBLANC,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent.
Appeal heard on March
12, 2002 at Moncton, New Brunswick, by
the Honourable Deputy
Judge S.J. Savoie
Appearances
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Stéphanie Côté
JUDGMENT
The appeal is dismissed and the decision rendered by the Minister
is confirmed in accordance with the attached Reasons for
Judgment.
Signed at Grand-Barachois,
New Brunswick, this 22nd day of May 2002.
D.J.T.C.C.
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