Citation: 2006TCC557
Date: 20061023
Docket: 2006-103(EI)
BETWEEN:
GINO ROUTHIER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] The Appellant Gino
Routhier is appealing from a decision made by the Minister of National Revenue
("the Minister") under the Employment Insurance Act
("the Act"). Specifically, by letter dated
June 22, 2005, the Minister notified the Appellant of his decision that
(i) in
2000, the Appellant worked for Aménagement MYR Inc.
("the Payor") from May 21 to September 8, accumulated 960
insurable hours and earned a total of $10,500 in insurable earnings;
(ii) in
2001, the Appellant worked for the Payor from June 3 to October 12,
accumulated 1045 insurable hours and earned a total of $11,250 in insurable
earnings; and
(iii) in
2002, the Appellant worked for the Payor from May 19 to October 4,
accumulated 900 insurable hours and earned a total of $12,250 in insurable
earnings.
[2] The Minister's
decision was based on the following assumptions of fact, which are set out in
paragraph 6 of the Reply to the Notice of Appeal:
[TRANSLATION]
(a) The Payor
operated a forestry business specializing in brush cutting.
(b) The Payor's
main customers were Bowater and Abitibi-Consolidated.
(c) The Payor was
active from the snow-melt to the first snow, that is to say, roughly from
late May to November.
(d) The Payor hired
30 to 90 brush cutters each year.
(e) In 2000, 2001
and 2002, the Appellant worked for the Payor as a brush cutter.
(f) In this
capacity, he worked 60 hours per week in 2000, 55 hours in 2001 and
50 hours in 2002.
(g) It was the
Payor's practice to bank employees' hours.
(h) The Payor
pleaded guilty to a charge of issuing false Records of Employment (ROEs)
to its workers.
(i) In his
statutory declaration dated and signed on February 18, 2004, the
Appellant stated: [TRANSLATION] "It is true that I always banked a week of
work each year."
(j) In his
statutory declaration dated and signed on February 18, 2004, the Appellant stated [TRANSLATION]:
"In 2001, I received a Record of Employment that ended on
September 21, 2001, even though I actually continued to work until October 12, 2001."
(k) The ROEs issued
by the Payor do not reflect the true situation with respect to the periods
worked by the Appellant and the insurable hours accumulated by the Appellant in
2000, 2001 and 2002.
(l) For the period
from May 21 to September 8, 2000, the Minister determined that the Appellant
worked for 960 insurable hours and received a total of $10,500 in insurable
earnings.
(m) For the period
from June 3 to October 12,
2001, the Minister
determined that the Appellant worked for 1045 insurable hours and received a
total of $11,250 in insurable earnings.
(n) For the period
from May 19 to October 4, 2002, the Minister determined that the Appellant
worked for 900 insurable hours and received a total of $12,250 in insurable
earnings.
[3] Of the facts set
out in paragraph 6 of the Reply to the Notice of Appeal, the Appellant admitted
only to those set out in subparagraphs (a), (b), (d), (e), (f) and (h).
He denied all the others.
[4] It should be noted
that the Appellant's ROEs
state that
(i) in
2000, he worked for the Payor from May 29 to September 8,
accumulated 900 insurable hours and earned a total of $10,500 in insurable
earnings;
(ii) in
2001, he worked for the Payor from June 11 to September 21, accumulated
825 insurable hours and earned a total of $11,250 in insurable earnings; and
(iii) in
2002, he worked for the Payor from May 27 to October 4, accumulated 850
insurable hours and earned a total of $12,250 in insurable earnings.
Background
[5] In 2004, the Payor
pleaded guilty to the charge of issuing false Records of Employment (ROEs) to
his workers in years that included 2000, 2001, and 2002, and he paid a $50,000
fine for having done so. Among other things, the Payor had set up a scheme to
bank hours and had issued ROEs for periods during which its employees were not
working. As part of their investigation into the Payor's illegal practices,
CPP/EI coverage officers made decisions against 24 of the Payor's employees,
nine of whom, including the Appellant, launched appeals.
[6] In the statutory
declaration (Exhibit A-2) which the Appellant signed on February 18, 2004, at
the office of Human Resources Development Canada (HRDC) located at 1500, rue
des Érables, in Dolbeau, in the presence of senior investigator
Réal Couture of HRDC as well as an RCMP officer, the Appellant
acknowledged that he worked for the Payor outside the periods stated in the
ROEs. It must be understood that it is based on this voluntary declaration that
the Minister made the decision of June 22, 2005, against the Appellant.
Now, the Appellant is alleging that the admissions in the statutory declaration
were obtained by means of threats and intimidation. In short, the
Appellant, who bears the burden of proof in the instant case, had to convince
me that his version of the facts are more credible than Réal Couture's.
[7] The relevant
excerpts from the statutory declaration read as follows:
[TRANSLATION]
. . . With respect to the week that is
banked at the beginning of each season, it is true that I always banked one
week of work every year, except in 2003, when I was a painter at the camp.
Mario Richard was the person who proposed banking one week at the beginning of
the season, and I accepted; the following years, it was sort of automatic, we
asked each other whether we would do the same thing as the preceding year and
that was correct. In 2001, I received a Record of Employment ending September
21, 2001, even though I actually continued to work until October 12, 2001. What happened was that I had production problems
and was overpaid. Mario Richard told me that he would give me my ROE so I could
get my unemployment benefits, and that I would continue to work in order to pay
back the money that I owed him; this would do a little more fine tuning…
The Appellant's testimony
[8] The essence of the
Appellant's testimony pertained to the circumstances under which the statutory
declaration was signed. The Appellant first said that he was directed to report
to the HRDC office on February 28, 2004 at 8:30 a.m. but was not told the
purpose of the meeting. He sincerely believed that the purpose of the meeting
was to impart general information. He then said that if he had known the
purpose of the meeting, he would have brought the documents (such as the ROEs)
that would have helped him answer the investigators' questions.
[9] The Appellant
testified that he was greeted at the meeting by Mr. Couture and an RCMP
officer. He said that the RCMP officer, who introduced himself by showing his
identification cards, intimidated him from the start. The Appellant explained
that he was intimidated and threatened by the two investigators, who reminded
him of his previous problems with the justice system and told him [TRANSLATION]
"If you don't sign the declaration, you might as well call a lawyer."
[10] In summary, the
Appellant testified that he signed the statutory declaration under threats and
intimidation. He was so [TRANSLATION] "on edge" that he signed the
declaration that the two investigators asked him to sign, which was prepared by
Mr. Couture. The Appellant [TRANSLATION] "just wanted to
leave."
[11] The Appellant also
testified that the first version of the statutory declaration was destroyed at
his request because he noticed that it contained a mistake.
Mr. Couture's testimony
[12] Mr. Couture was a
witness whose credibility was not, in my opinion, impeached in the instant
case. He said that
(i) as
part of his investigation into the Payor's activities, he met 24 of the Payor's
employees, including the Appellant;
(ii) he
met the Appellant at the Dolbeau office of HRDC on February 18, 2004,
at 8:30
a.m., and
an RCMP officer was also present;
(iii) the
Appellant was summoned in writing (Exhibit I‑1) and the purpose of
the meeting was very clearly stated in the notice to attend the meeting;
(iv) the
interview went well; Mr. Couture does not recall the RCMP officer reminding the
Appellant of his drunk driving record, nor does he recall the RCMP officer
asking the Appellant any questions. He stated categorically and calmly that
neither he nor the RCMP officer made any direct or indirect threats against the
Appellant and that neither of them forced the Appellant to sign the statutory
declaration.
Analysis and conclusion
[13] The burden of proof
was on the Appellant. He needed to satisfy me, on a balance of probabilities,
that the Minister erred in rendering his decision of June 22, 2005.
The Appellant's position is that the Records of Employment reflect the true
situation with respect to the periods of employment, the insurable hours and
the insurable earnings. The Appellant's evidence in this regard consisted
solely of his testimony, which, as I have stated, was contradicted by his own
statutory declaration. His position on the statutory declaration is that it was
obtained by means of threats and intimidation.
[14] The Appellant has
absolutely not satisfied me that he was threatened and intimidated at the
meeting of February
18, 2004.
Indeed, I have trouble understanding how the Appellant, if he was perturbed and
intimidated from the beginning of the meeting, could have read the first
version of the statutory declaration and dared to ask Mr. Couture to
destroy it because it contained inaccurate information. I also have trouble
understanding how investigators as intimidating and threatening as Mr. Couture
and the RCMP officer could give the Appellant the time to read the first
version of the statutory declaration and agree to destroy it. The conduct
of which the Appellant accuses the two individuals in question strikes me as
completely inconsistent with the events associated with the first version of
the statutory declaration.
[15] I would like to
emphasize that the Appellant's testimony related to the notice of the meeting
of February 18, 2004, merely added to my doubts about the Appellant's
credibility. I find his explanation, that he believed that the meeting was
merely intended to impart general information, implausible at best given that
the purpose of the meeting was specified in the written notice which the
Appellant acknowledges having received and read.
[16] To sum up, I had to
choose between Mr. Couture's version of the facts and the Appellant's version.
I chose Mr. Couture's version because I found him more credible than the
Appellant.
[17] For these reasons,
the appeal is dismissed.
Signed at Ottawa, Canada, this 23rd day of October 2006.
"Paul Bédard"
Translation
certified true
on this 28th day
of February 2008.
Brian McCordick,
Translator
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