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Citation: 2004TCC354
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Date: 20040520
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Docket: 2003-3029(EI)
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BETWEEN:
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MICHAEL YASSA,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Savoie, D.J.
[1] This appeal was heard in Montreal,
Quebec on February 24, 2004.
[2] This is an appeal from a decision
made by the Minister of National Revenue (the
"Minister") that while the Appellant, was employed by
9051-4688 Quebec Inc. (the "Payer"), for the period
from June 4, 2001 to January 7, 2002, his insurable hours
totalled 350 and his insurable earnings were $4,050.00 for the
period under review.
[3] In making his decision, the
Minister relied on the following assumptions of fact:
a) the Payer
had been incorporated on June 13, 1997; (ignored)
b) the Payer
was operating a warehousing business and a trailer and truck
washing business; (admitted)
c) the Payer
was operating under the trade names of
" J.A.M. Warehousing" and "Sunshine
Trailers & Truck Wash"; (admitted)
d) the
Appellant was engaged as a truck washer and as a janitor;
(admitted)
e) the
Appellant's tasks were to take out the garbage of the
warehouse and of the office of the Payer, to clean the floor, to
build division walls in the warehouse and to wash trucks;
(admitted)
f) the
Appellant was supervised by and received orders from
Aurelio Robert Paravano; (admitted)
g) the
Appellant worked from Monday to Friday on the Payer's
premises; (admitted)
h) the
Appellant was paid by a cheque in an amount of $800.00 every two
weeks; (admitted)
i) on
March 7, 2002, the Respondent asked the Payer for the cancelled
cheques for payments made to the Appellant for his work during
the years 2001 and 2002; (no knowledge)
j) on
March 20, 2002, the Payer submitted five cheques made to the
order of the Appellant for ten weeks of work;
(admitted)
k) following
the Payer [sic], the Appellant received $4,050.00 as
earnings as follows: (admitted)
cheque
#4
05/10/01
$800
#7
19/10/01
$800
#11
02/11/01
$800
#23
27/11/01
$850
#27
14/12/01
$800
l) the
Appellant had no proof of the wages received;
(admitted)
m) on January 1st,
2001, the minimum wage rate was $6.90 per hour;
(admitted)
n) the Payer
did not register the working hours of the Appellant;
(denied)
6. The
Appellant made a complaint against the Payer concerning recovery
of wages under the Canada Labour Code, Part III.
(admitted)
7. On October
9, 2002, Michel Germain, Labour Standards Officer, received the
Appellant's complaint against the Payer and he condemned the
Payer to pay the Appellant the sum of $3,677.12 minus the
statutory deductions. (admitted)
8. The amount
of $3,677.12 is detailed as follows: (admitted)
$440.00 for 55 unpaid hours of work
$680.00 for seven unpaid statutory holidays pay
$1,188.00 for overtime premium
$800.00 for notice of termination of employment
$569.12 for vacation pay
[4] The Appellant testified that he
worked for the Payer from June 4, 2001 until January 7, 2002. His
complaint is that he was only credited with 350 hours by the
Payer. He stated that he was paid by cheque for which he had to
sign and was given a copy of each paycheque which he never kept.
That is part of the weakness of the Appellant's case, in that
his claim is poorly documented.
[5] The Appellant denied the
Minister's assumption that the Payer failed to register his
working hours. However, he was unable to prove the falsehood of
such assumption and therefore was unable to discharge the onus of
proof cast upon him.
[6] The evidence shows that the
Appellant made certain requests to the National Bank of Canada to
produce documents that would support his claim. At the hearing,
the Court granted his request for an extension of time to enable
him to gather the supporting documents in question. These have
now been received. Unfortunately, the information contained in
the documents produced is so sketchy, vague and incomplete, that
it cannot successfully assist the Appellant in the position he
has taken.
[7] In his determination, however, the
Minister took into consideration the earnings of the Appellant
documented by the cheques provided by the Payer totalling
$4,050.00 as well as the findings of Michel Germain, Labour
Standards Officer and Human Resources Development Canada (HRDC),
who investigated the Appellant's complaint against the Payer.
Mr. Germain concluded that the Appellant was owed a further
amount of $3,677.12 by the Payer and demanded payment of that
amount on behalf of the Appellant. The evidence shows that
neither HRDC nor the Appellant were successful in their attempts
at recovery against the Payer.
[8] It is the position of the Minister
that certain statutory deductions must be made out of the claim
of $3,677.12, namely, the overtime premium in the amount of
$1,188.00 and the amount that would have been paid by reason of
termination of the employment, namely $800.00. The Minister's
conclusion in that regard is well-founded. It is so provided in
the following excerpt of the Insurable Earnings and Collection
of Premiums Regulations:
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
...
(2) For the purposes of this Part, the total amount of
earnings that an insured person has from insurable employment
includes the portion of any amount of such earnings that remains
unpaid because of the employer's bankruptcy, receivership,
impending receivership or non-payment of remuneration for which
the person has filed a complaint with the federal or provincial
labour authorities, except for any unpaid amount that is in
respect of overtime or that would have been paid by reason of
termination of the employment. (the underlining is mine)
[9] In summary, therefore, the
insurable earnings of the Appellant are $4,050.00.
[10] With respect to the number of insurable
hours of the Appellant for the disputed period, the establishment
of same presented some difficulty. Consequently, the Minister
followed the enabling provisions in that regard established by
the Employment Insurance Regulations. The relevant
sections provide as follows:
9.2 Subject to section 10, where a person's
earnings or a portion of a person's earnings for a period of
insurable employment remains unpaid for the reasons described in
subsection 2(2) of the Insurable Earnings and Collection of
Premiums Regulations, the person is deemed to have worked in
insurable employment for the number of hours that the person
actually worked in the period, whether or not the person was
remunerated.
...
10.(4) Except where subsection (1) and section 9.1
apply, where a person's actual hours of insurable employment
in the period of employment are not known or ascertainable by the
employer, the person, subject to subsection (5), is deemed to
have worked, during the period of employment, the number of hours
in insurable employment obtained by dividing the total earnings
for the period of employment by the minimum wage applicable, on
January 1 of the year in which the earnings were payable, in the
province where the work was performed.
...
(5) In the absence of evidence indicating that overtime or
excess hours were worked, the maximum number of hours of
insurable employment which a person is deemed to have worked
where the number of hours is calculated in accordance with
subsection (4) is seven hours per day up to an overall maximum of
35 hours per week.
[11] The Minister has therefore calculated
the number of insurable hours in accordance with the
Regulations. They amount to 350 hours.
[12] On the basis of the evidence presented
to the Court and the Regulations under which the Minister
made his determination in the absence of supporting data to the
Appellant's claim, it is the conclusion of this Court that
the Appellant has failed to demonstrate the advisability of this
Court's interference with the Minister's decision.
[13] The Minister's conclusion is
well-founded, both factually and legally. The appeal is dismissed
and the Minister's decision is confirmed.
Signed at Grand-Barachois, New Brunswick, this 20th day of May
2004.
Savoie, D.J.
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