Citation: 2007TCC638
Date: 20071019
Docket: 2005-2988(EI)
BETWEEN:
TO,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1] The central issue in this appeal is whether
free meals provided to the appellant by his employer should be taken into
account in determining “insurable earnings” for purposes of the Employment
Insurance Act.
[2] The appellant appeals a decision of the
Minister of National Revenue in which “insurable earnings” were computed by
excluding the value of meals provided by the employer. The period at issue is
from October 1, 2003 to April 10, 2004.
[3] The appellant represented himself at the
hearing and required the services of a Japanese interpreter. As the appellant’s
facility with the English language was better in writing, arguments were made
by way of written submissions subsequent to the hearing.
[4] The relevant facts are quite
straightforward. The appellant was hired to work in the kitchen of a Japanese
restaurant in Victoria, British
Columbia, and received hourly
wages of between $8 and $9 during his period of employment. On average, the
appellant worked four lunch shifts and five dinner shifts a week, with each
shift lasting approximately four hours.
[5] At the end of each shift, a free meal was
prepared for the staff by the chef. According to the testimony of one of the
owners of the restaurant, this practice is common in the restaurant industry.
In this case, the appellant was able to select a meal from a limited number of
choices on the menu.
[6] In addition, the appellant testified that
the chef also sometimes gave him rice or vegetables to take home.
[7] The issue is whether the value of the free
meals should be included in determining “insurable earnings” under the relevant
legislation.
[8] The applicable provisions are set out in
regulations to the Employment Insurance Act called the Insurable
Earnings and Collection of Premiums Regulations (the “Regulations”). In section
2 of the Regulations, a broad definition of “earnings” is provided which is
then subject to a number of exceptions. The exception that is relevant here is
for non-cash benefits, other than board or lodging.
[9] The relevant parts of section 2 provide:
2.(1) For the purposes of the definition “insurable earnings” in subsection 2(1)
of the Act and for the purposes of these Regulations, the total amount of
earnings that an insured person has from insurable employment is
(a)
the total of all amounts, whether wholly or partly pecuniary, received or
enjoyed by the insured person that are paid to the person by the person’s
employer in respect of that employment, and
(b)
the amount of any gratuities that the insured person is required to declare to
the person’s employer under provincial legislation.
[…]
(3) For the
purposes of subsections (1) and (2), “earnings” does not include
(a)
any non-cash benefit, other than the value of either or both of any board or
lodging enjoyed by a person in a pay period in respect of
their employment if cash remuneration is paid to the person by their employer
in respect of the pay period;
(a.1)
any amount excluded as income under paragraph 6(1)(a) or (b) or
subsection 6(6) or (16) of the Income Tax Act;
(b)
a retiring allowance;
(c)
a supplement paid to a person by the person’s employer to increase worker’s
compensation paid to the person by a provincial authority;
(d)
a supplement paid to a person by the person’s employer to increase a wage loss
indemnity payment made to the person by a party other than the employer under a
wage loss indemnity plan;
(e)
a supplemental unemployment benefit payment made under a supplemental
unemployment benefit plan as described in subsection 37(2) of the Employment
Insurance Regulations; and
(f)
a payment made to a person by the person's employer
(i)
to cover the waiting period referred to in section 13 of the Act,
(ii)
to increase the pregnancy, parental or compassionate care benefits payable to
the person under section 22, 23 or 23.1 of the Act, to the extent that the
payment meets the criteria set out in section 38 of the Employment Insurance
Regulations, or
(iii)
to increase the benefits payable to the person under a provincial plan, as
defined in section 76.01 of the Employment Insurance Regulations, to the
extent that the payment
(A)
when combined with the weekly amount of those benefits, does not exceed the
person's normal weekly earnings from employment by that employer, and
(B)
does not reduce the person's accumulated sick leave or vacation leave credits,
severance pay or any other accumulated credits from that employment.
(Emphasis
added)
[10] The question in this case turns on the
meaning of the term “board.” If the meals provided to the appellant are not
encompassed by that term, the Minister has properly excluded their value in
computing “insurable earnings.” On the other hand, if the meals are “board,”
they should be included.
[11] At the commencement of the hearing, counsel
for the Crown attempted to also bring into issue the value of the meals, which
the appellant had determined as the price listed in the menu. I concluded that
it was too late to raise this issue, as it had not been mentioned in the
Crown’s reply.
[12] Turning to the main question, then, the
appellant submits that the term “board” encompasses meals that are provided on
a regular basis and he suggests that the meals provided to him satisfy that
criterion.
[13] In my analysis, I will start with
dictionary definitions of “board” when it is used in the context of meals.
According to The Shorter Oxford English Dictionary (3rd ed.), the term
“board” means:
7. To provide with daily meals; now
generally to provide with both food and lodgings at a fixed rate.
8. To be supplied with food, or food and
lodging, at a fixed rate; to live with a family as one of its members for a
stipulated charge.
[14] The Canadian Oxford Dictionary (2nd
ed.) provides similar meanings:
2a receive regular meals, or meals and
lodging, for payment.
b arrange accommodation away from home
for.
c provide (a lodger etc.) with regular
meals.
[15] It is also useful to refer to dictionary
definitions of the term “pension” which is used as the equivalent of “board” in
the French version of the Regulation. The
relevant paragraph provides:
(3)(a) les avantages autres qu'en espèces,
à l'exception, dans le cas où l'employeur verse à une personne une rétribution
en espèces pour une période de paie, de la valeur de la pension ou du
logement, ou des deux, dont la personne a joui au cours de cette période de
paie relativement à son emploi; (Emphasis added)
[16] In the French-English dictionaries, Le
Robert and Collins (6th ed.) and Larousse Advanced Dictionary
(2003), the term “pension” is simply defined as “board and lodging.” This does
not really assist except that it suggests a close tie between “pension” and
“lodging.”
[17] In my view, if the term “board” were
applied to the facts of this case, it would stretch the meaning of “board”
beyond its commonly understood meaning. The term has a strong connection with
lodging, and that is why it is usually associated with the provision of meals
on a daily basis.
[18] I am also of the opinion that the term
“board” in the context of this regulation should not be given an overly broad
interpretation. The Regulation provides a very limited exception for the
general rule that non-cash benefits are excluded in computing “insurable
earnings.” The interpretation suggested by the appellant would open up this
exception to circumstances that I doubt the drafters contemplated.
[19] The appellant has referred me to a decision
of the Tax Court of Canada that appears to support his position, however.
[20] In Pourvoirie au Pays de Real Masse Inc.
v. MNR, 2004 TCC 582, and the related appellate decision, Desaulniers v.
The Queen, 2006 FCA 15, the employer operated an outfitting business that
included an inn, cottages and a dining room. According to the facts as outlined
in the decision, most employees were provided free meals and accommodation on
site. However, in a few instances, employees lived off site and were provided
meals only while they were at work. It is this latter circumstance that is
relevant here.
[21] The Minister of National Revenue made
various determinations in respect of 33 employees of the establishment,
including their periods of employment, insurable hours and insurable earnings.
For purposes of computing “insurable earnings,” the Minister added the value of
meals, regardless of whether the staff lived on site or elsewhere. This part of
the Minister’s decision was confirmed by Lamarre J. without elaboration as to
why meals that were taken only while employees were on site were considered to
be encompassed by the term “pension.”
[22] Some of the facts in Pourvoirie are
similar to the present case, but I think that it is significant that most of
the employees lived on site and received all meals and accommodation from the
employer without payment. It is also relevant that the judge did not provide
reasons for deciding that all meals should be included in “insurable earnings,”
and there is no indication in the reasons that the issue before me was argued
by either counsel. For these reasons, I do not think that this decision is
authority for the proposition that meals provided by an employer during work
shifts constitute “board,” but if Pourvoirie can be interpreted in this
manner, in my view the decision should not be extended beyond its particular
facts.
[23] For the reasons above, my conclusion is
that the term “board” in the Regulation does not include meals that are
customarily provided to restaurant staff. The Minister’s decision to exclude
the free meals provided to the appellant from the computation of “insurable
earnings” will therefore be confirmed.
[24] Before concluding, I wish to comment
briefly on some of the procedural issues that were raised by the appellant.
[25] The first issue concerns privacy. The
appellant seeks to invoke a constitutional right to privacy and has requested,
among other things, that I use a pseudonym for his name in the judgment. The
fact that court decisions are published on the internet was a particular
concern expressed.
[26] The appellant argued that the right to
privacy was a constitutional right, citing as authority a Bill of Rights
published by the Canada Revenue Agency. This document does not assist the
appellant because it does not apply to courts. It was issued by the Canada
Revenue Agency and is intended to reinforce a respect for privacy by that
governmental agency. It has no application to proceedings before courts,
including the Tax Court of Canada.
[27] The principle of open courts is entrenched
in Canada and I am not satisfied that there are good
reasons to deviate from the usual practice of the Court in this case. On the
other hand, I have some concern that I do not fully understand the nature of
the appellant’s concern because there was no oral argument in this case. I
will, therefore, issue a direction to the Registry to change the style of cause
to the appellant’s initials.
[28] Another issue raised by the appellant also
merits some comment. In a letter to the Court dated June 24, 2007, the
appellant noted that Pourvoirie had been cited in two subsequent
decisions, Lacroix v. M.N.R., 2007TCC81 and Garneau v. M.N.R.,
2006TCC160. He raised a concern about access to these judgments because one
of these decisions was not available on the Court’s website and the other was
available only in French. The English versions of both decisions are now on the
website. I have taken these decisions into account but I did not find them to
be of assistance to the issue before me.
[29] For the above reasons, the appeal is
dismissed.
Signed at Toronto, Ontario, this 19th day of October 2007.
Woods
J.
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