Citation: 2009 TCC 4
Date: 20090106
Dockets: 2007-326(EI)
2007-333(EI)
BETWEEN:
GATIEN MOREAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
On September 28, 2006,
the Appellant asked the Minister of National Revenue (the Minister) to decide
whether he held insurable employment within the meaning of the Employment
Insurance Act (the Act) during the period of March 5, 2001, to
June 1, 2001 (the relevant period) while working for 9097‑5655
Québec Inc., operating as Service de Personnels Mainlist (Mainlist). On
September 18, 2006, the Appellant also asked the Minister to rule on whether he
held insurable employment within the meaning of the Act during the relevant
period while working for 3773647 Canada Inc., operating as Le Groupe Ohmz &
Gars Électrique (Ohmz). On November 24, 2006, the Minister informed the
Appellant of his decision that he did not hold insurable employment with
Mainlist during the relevant period. On November 24, 2006, the Minister also
informed the Appellant of his decision that he did not hold insurable
employment with Ohmz during the relevant period. The Appellant is appealing
from these two decisions rendered by the Minister.
[2]
In making his decision
in docket 2007-333(EI), the Minister decided the Appellant did not hold
insurable employment based on the following presumptions of fact:
(a)
the Payor was
incorporated on June 12, 2000; (no knowledge)
(b)
according to the
Registraire des entreprises, number 1149491947, the Payor's shareholders were
Alain Couture, majority shareholder, and Noël Deshaies, second largest
shareholder; (no knowledge)
(c)
the Payor had a
registered business, "Groupe Ohmz & Gars électrique"; (no
knowledge)
(d)
Noël Deshaies,
electrician, described the Payor as a company offering electrician's services; (no
knowledge)
(e)
the Appellant was a
journeyman electrician; (admitted)
(f)
the Appellant stated
that he got his job from an ad in a newspaper from the Chandler region; (admitted)
(g)
the Appellant was
allegedly hired by Alain Couture; (admitted)
(h)
the Appellant allegedly
worked on electrical installations and wiring in houses in Laval; (admitted)
(i)
according to the
Appellant, he started working when he wanted and submitted his hours to the
Payor's foreman; (denied as written)
(j)
on August 3, 2005, in
an unsigned statement at Human Resources and Skills Development Canada, Noël
Deshaies declared that the Payor did not have any activity and that it was a
dummy corporation; (no knowledge)
(k)
on August 3, 2005, in
an unsigned statement at Human Resources and Skills Development Canada, Noël
Deshaies stated he did not know the Appellant; (no knowledge)
(l)
on November 19, 2001,
in his signed statutory declaration at Human Resources Development Canada, the
Appellant claimed he worked for Alain Couture operating "Le Groupe Ohmz
& Gars Électrique"; (admitted)
(m)
during the relevant
period, the Appellant claims he was paid by 9097‑5665 Québec Inc.,
operating as "Mainlist" with three NSF cheques; (admitted)
(n)
the Appellant provided
a representative of the Respondent with a pay stub from April 30, 2001, for
$750 and another from May 18, 2001, for $1,000 with the word "prêt"
[loan] on each; (admitted)
(o)
in fact, during the 13
weeks of the relevant period, the Appellant received no compensation; (denied
as written)
(p)
on November 16, 2006,
the Appellant told a representative of the Respondent that he never calculated
the total amount he did not receive from the Payor; (denied as written)
(q)
the Appellant declared
to a representative of the Respondent that he was to be paid at the Commission
de la Construction du Québec (CCQ) rate; (admitted)
(r)
for the relevant
period, the Appellant submitted a claim to the CCQ for 729 hours; that claim
was denied by the CCQ; (admitted)
(s)
in his tax report for
2001, the Appellant had no income except $10,738 in employment-insurance
benefits; (admitted)
(t)
during the relevant
period, there was no relationship of subordination between the Appellant and
the Payor; (denied)
(u)
during the relevant
period, there was no compensation between the Appellant and the Payor. (denied)
[3]
In making his decision
in docket 2007‑326(EI), the Minister decided that the Appellant did not
hold insurable employment based on the following presumptions of fact:
(a)
the Payor was
incorporated on November 9, 2000; (no knowledge)
(b)
the Payor operated a
placement company for construction workers; (no knowledge)
(c)
on November 19, 2001,
in his statutory declaration signed at Human Resources Development Canada, the
Appellant declared that he worked for Alain Couture operating "Le Groupe
Ohmz & Gars Électrique " (no knowledge)
(d)
on November 15, 2006,
the Appellant told a representative of the Respondent that during the relevant
period, he worked solely for 3773647 Canada Inc. operating "Le Groupe Ohmz
& Gars Électrique"; (admitted)
(e)
during the relevant
period, the Appellant claims he was paid by the Payor; (admitted)
(f)
in fact, during the 13
weeks of the relevant period, the Appellant did not receive any compensation
from the Payor or from "Le Groupe Ohmz & Gars Électrique"; (denied
as written)
(g)
in his claim with the
Commission de la Construction du Québec (CCQ), for 729 hours, which the CCQ
denied, the Appellant described Ohmz & Gars Électrique as his employer for
the relevant period; (admitted)
(h)
the Appellant did not
perform services for the Payor. (denied)
[4]
The Appellant testified.
Moreover, Normand Ross and Marc Wagner testified in support of the Appellant's
position. Line Simoneau, major investigation officer at Human Resources
Development (HRD) and Lyne Courcy, the appeals officer in charge of these
cases, testified in support of the Respondent's position.
Testimony of Ms. Simoneau
[5]
The Respondent had Ms.
Simoneau testify. During her investigation, she noted that Mainlist was part of
a group of businesses claiming to be temp agencies and who were under
investigation for issuing false records of employment. Ms. Simoneau explained
that the ringleader of all these businesses, Alain Couture, was convicted on
related criminal charges. She also noted that according to the business ledger,
the shareholders in Ohmz during the relevant period were Mr. Couture, majority
shareholder, and Noël Deshaies, second-largest shareholder. Ms. Simoneau
explained that Mr. Deshaies told her that he did not know he was a shareholder
in Ohmz, that it was a dummy corporation, that he never worked for Ohmz and he
did not know either the Appellant or Mr. Ross. Lastly, Ms. Simoneau stated that
Ohmz did not issue a record of employment for the Appellant.
Testimony of Normand Ross and Marc Wagner
[6]
Essentially, according
to the testimony of Mr. Ross and Mr. Wagner, they worked at the same time as
the Appellant at the same work site, during the relevant period. Mr. Ross
explained that he worked with the Appellant at the same work site for two weeks
in March 2001. Mr. Wagner also explained that he worked with the Appellant at
the same work site for four or five weeks in March and April 2001. I
immediately make note that one must be careful, to say the least, with Messrs.
Wagner and Ross' testimony because they live in the same neighbourhood as the
Appellant and are long-time friends of his.
[7]
The relevant parts of
the Report on an Appeal (Exhibit I-9) regarding information Ms. Courcy obtained
from the Appellant during a phone conversation with him are worth citing:
2. Since there was no
work in Gaspésie, an electrician friend living in Montreal suggested the
Appellant go to Montreal for work, which he did. He went to the CCQ office in
Montreal and to the union to register. Since they did not have work for him, he
searched for and found a job with Ohmz & Gars Électrique.
3. The Appellant
indicated he did not work for Mainlist during the period of March 5, 2001, to
June 1, 2001, but for Ohmz & Gars Électrique (namely 3773647
Canada Inc.). All he knew of this company was that Noël Deshaies was the
one who described the company as an electrician.
4. He was hired by
Alain Couture to work at Ohmz & Gars Électrique. He had seen Mr. Couture
but did not know him.
5. The Appellant
worked on Renaissance Street in Laval. The work site included 12 new houses. He
installed electrical outlets and wiring. He also did electrical repairs on
Robert Street.
6. The Appellant
worked with Noël Deshaies, electrician, and Norman Ross, electrician
apprentice. He also worked a week or two with Michel Lancup.
…
9. There were two or three
different foremen on the work sites, including Mr. Leblanc. The Appellant did
not see Alain Couture except the one time he went to the work site and was to
speak to him, but did not. As for Michel Boutin, he saw him a few times at work
but did not have anything to do with him or Marco Couture, president of Cogebo,
who brought materials.
10. The Appellant stated
that his work on weekends was the same as during the week, and was still with
Ohmz & Gars Électrique (namely 3773647 Canada Inc.).
11. He could start
working when he wanted because there was always someone at the work site. He
worked an average of 60 hours a week and sometimes he worked 90 hours a week.
When asked why the detailed hours indicate a maximum of 70 hours, he verified
the document and said it was a long time ago, but if it says 70 hours, then he
worked 70 hours.
12. Ohmz & Gars
Électrique (namely 3773647 Canada Inc.) was to pay him at the hourly CCQ
rate. In fact, he received a first paycheque of $527.11, and then two cheques
for advances for $750 and $1,000. These cheques were all NSF. He did not
receive any other amounts.
13. When asked why he
worked 13 weeks without being paid, he said he relied on the CCQ representative
and believed it would be resolved. He was in too deep and believed he would be
paid.
14. When asked why the
pay stub for the $527.11 indicated 40 hours when he listed 60 hours on his time
record, the Appellant said it was really 50 hours and did not know why he
received a paycheque for only 40 hours.
…
16. To meet his needs,
the Appellant borrowed money from his mother and his brother.
17. When asked why the
pay stubs for the $750 and $1,000 cheques indicate "loan" and not
salary, the Appellant said it was an advance. Since he was in Laval and his
cheques went through his account in Gaspésie, it took time before he realized
they were NSF.
18. The Appellant does
not know why he indicated "Mainlist" as the employer on his
employment-insurance application when he worked only for Ohmz & Gars
Électrique (namely 3773647 Canada Inc.). Although he does not know why,
the three cheques he received were from "Mainlist."
…
20. The Appellant
indicated that his meeting with the investigators (Madeleine Cabot and Line
Simoneau) went well. He does not have a copy of the declaration. Upon reading
the statutory declaration during our meeting, the Appellant did not make any
changes. He stated that he dealt with Mr. Leblanc, foreman, and not Alain
Couture. When asked why he did not mention Mr. Leblanc in his statutory declaration,
he did not know. He added that Michel Boutin was the foreman for around one
week only. (Tab D)
…
22. He never calculated
the total amount he did not receive from Ohmz & Gars Électrique (namely
3773647 Canada Inc.).
[8]
In this case, a few
general comments should be made regarding the Appellant's credibility. As a
reminder, he was practically the only person (aside from Messrs. Wagner and
Ross) to testify in support of his appeals. I note that the Appellant only
really submitted a single document in support of his position, namely a copy of
two cheques in his name drawn from the bank account of Mainlist (Exhibit A‑1).
In my opinion, it would not be wise to grant credibility to the Appellant's
testimony without supporting or probative evidence in the form of documentation
or credible testimony. The Appellant's replies were generally vague, imprecise,
ambiguous and often unlikely. Not only were his responses imprecise but they
were also often contradicted by documentary evidence and his prior statements. To
show how little credibility the Appellant's testimony had, we will examine
three fairly significant examples. First, the Appellant testified that he
worked seven days a week during the relevant period, from 7:00 a.m. to 6:00
p.m., nearly 70 hours a week. However, the document he sent to Ms. Courcy
(Exhibit I-3) indicates that:
(i)
during the first week
of the relevant period, he allegedly worked 50 hours over five days;
(ii)
during the second week
of the relevant period, he allegedly worked 60 hours over six days;
(iii)
during the third week
of the relevant period, he allegedly worked 60 hours over six days;
(iv)
during the fourth week
of the relevant period, he allegedly worked 70 hours over seven days;
(v)
during the fifth week
of the relevant period, he allegedly worked 63 hours over seven days;
(vi)
during the sixth week
of the relevant period, he allegedly worked 40 hours over four days;
(vii)
during the seventh week
of the relevant period, he allegedly worked 50 hours over five days;
(viii)
during the eighth week
of the relevant period, he allegedly worked 70 hours over seven days;
(ix)
during the ninth week
of the relevant period, he allegedly worked 60 hours over six days;
(x)
during the tenth week
of the relevant period, he allegedly worked 60 hours over six days;
(xi)
during the eleventh
week of the relevant period, he allegedly worked 50 hours over five days;
(xii)
during the twelfth week
of the relevant period, he allegedly worked 50 hours over five days;
(xiii)
during the thirteenth
week of the relevant period, he allegedly worked 46 hours over five days.
Moreover, the Appellant's application for unemployment
indicates he worked an average of 50 hours a week during the relevant period.
Additionally, a pay stub (Exhibit I-2) indicates that the Appellant allegedly
worked 40 hours during the week ending March 17, 2001. From all this, we have
four different versions regarding the hours of work for the week ending March
17, 2001.
[9]
The second example
deals with the Appellant's testimony on his compensation. The evidence shows
that the Appellant was not compensated for the work he allegedly carried out
during the 13 weeks of the relevant period. First, the Appellant claimed that
Ohmz (and not Mainlist) was to pay at the rate prescribed by the order in
effect at the time in the construction field. In fact, the Appellant received a
first cheque for $527.11 (Exhibit I-2) for the week ending March 17, 2001; this
cheque was NSF. Moreover, the Appellant provided a copy of two cheques (Exhibit
A-1) in his name, drawn from the bank account of Mainlist (and not Ohmz). The
first, for $750 was dated April 20, 2001. The other, for $1,000 was dated May
18, 2001. On both cheques, the word "loan" appears. They were both
also NSF cheques. The Appellant claimed that he did not receive any other
amounts. The Appellant stated that he learned the cheques were NSF many months
later because they had to go through Gaspésie. I must immediately note that the
cheque dated May 18, 2001, has a statement dated May 22, 2001, indicating that
it was NSF. Basically, the Appellant declared that he worked for 13 weeks
without compensation because he realized too late that the cheques were NSF.
The Appellant explained that he was "in too deep" and had to [translation] "believe the promises
made that he would be paid." It is absolutely unthinkable that the
Appellant would have worked for 13 weeks at 70 hours a week without
compensation. The Appellant's entire version regarding his non-compensation for
the hours he allegedly worked is quite simply implausible.
[10]
Third, the Appellant
testified that his employer during the relevant period was Ohmz. However, his
application for unemployment indicates his employer was Mainlist. And yet, the
three cheques were drawn on the bank account of Mainlist, not Ohmz. The
Appellant was unable to explain this contradiction. His testimony on this
subject was simply incomprehensible.
[11]
Lastly, the
declarations Mr. Deshaies made to Ms. Simoneau and Ms. Courcy that Ohmz was a
company with no activity during the relevant period and that he did not know
the Appellant only confirmed my doubts that the Appellant was not employed
under a contract of service within the meaning of paragraph 5(1)(a) of
the Act, either with Mainlist or with Ohmz. I conclude that the Appellant did
not hold any insurable employment during the relevant period.
[12]
For these reasons, the
appeals are dismissed.
Signed at Ottawa, Canada, this 6th day of January
2009.
"Paul Bédard"
Translation
certified true
on this 13th day
of February 2009.
Elizabeth Tan,
Translator
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