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Docket: 2002-1700(EI)
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BETWEEN:
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STEVEN D. KERR,
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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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____________________________________________________________________
Appeal heard on November 17, 2003 at Saint John,
New Brunswick
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Before: The Honourable Justice T. O'Connor
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Appearances:
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Counsel for the Appellant:
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Joel P. Hansen
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Counsel for the Respondent:
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Susan McKinney
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____________________________________________________________________
JUDGMENT
The
appeal is allowed and the decision of the Minister is
vacated.
Signed at Ottawa, Canada, this 8th day of December 2003.
O'Connor, J.
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Citation: 2003TCC897
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Date: 20031208
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Docket: 2002-1700(EI)
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BETWEEN:
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STEVEN D. KERR,
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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
O'Connor, J.
[1] This appeal was heard at Saint
John, New Brunswick, on November 17, 2003. The issue on the facts
are set forth in the following paragraphs of the Reply to the
Notice of Appeal.
5. The
Appellant appealed to the Respondent from a ruling that he was
not an insured person pursuant to the Employment Insurance
(Fishing) Regulations ("the Fishing Regs")
and that Mills Seafood Ltd. (the "Payor") was not the
employer pursuant to the Fishing Regs during the Periods
in question.
6. The
Respondent informed the Appellant that the ruling was
confirmed.
7. In making
his decision, the Respondent relied on the following assumptions
of fact:
a) the Payor
was in the business of purchasing and selling clams;
b) the
Appellant received 2 Records of Employment ("ROEs")
from the Payor for the periods in question reporting insurable
earnings from the sale of clams to the Payor's agent, Larry
Foster;
c) the ROE
issued to the Appellant on October 19, 1999 reported
insurable earnings of $13,800.00 for a 10 week period;
d) the ROE
issued to the Appellant on October 27, 2000 reported
insurable earnings of $9,240.00 consisting of 2 weeks of
$480.00 each and the balance of $8,240.00 over a 12 week
period;
e) the
Appellant purchased the clams sold in his name;
f) the
Appellant did not dig the clams sold in his name.
B. STATUTORY PROVISIONS, GROUNDS RELIED ON AND
RELIEF SOUGHT
8. He relies
on paragraph 5(1)(a) of the Act and on
sections 1 and 2 of the Fishing Regs as amended.
9. He submits
that the Appellant was not engaged by the Payor in insurable
employment within the meaning of paragraph 5(1)(a) of
the Act for the period in question as there was no
contract of service between the Appellant and the Payor.
10. He further submits
that the Appellant did not make the catches sold to the Payor
during the periods in question and therefore was not a Fisher as
defined in section 1 of the Fishing Regs.
11. He further submits
that the Appellant cannot be included as an insured person
pursuant to section 2 of the Fishing Regs.
[2] Evidence was given by the
Appellant and by Larry Foster, the person representing Mills
Seafood Ltd. (the "Payor"), who was the actual buyer
for the Payor of the clams caught by the Appellant and by other
clam diggers. Testimony was also given by Mr. Robert Brittain a
CPP/EI Coverage Officer.
[3] The Appellant submitted Exhibits
A-1 and A-2 being Payroll History Reports prepared by the Payor
for the Appellant and covering the periods in question in 1999
and 2000. Also submitted were Exhibits R-1 and R-3 being the
Appellant's application for employment benefits for the
periods in question and Exhibits R-2 and R-4 being the
Appellant's record of employment for the years 1999 and
2000.
Analysis and Decision
[4] I find the evidence given by the
Appellant and by Larry Foster to be credible. Mr. Brittain's
testimony was to the effect that he had researched the clam
industry and concluded that 1) it was practically impossible for
the Appellant to catch the number of clams he claimed that he
caught. He also referred to Exhibit A-2 where it is indicated
under the column "Gross" that for the first ten weeks
of the year the sale amounts were the same and that for the next
nine weeks the amounts were also the same in each case. Mr.
Brittain pointed out that it was impossible that in every week
the amounts would be the same as every other week which amounts
are based upon the number of clams the Appellant delivered to Mr.
Foster. Mr. Brittain may be correct in his surmises but another
explanation could be that the Payor in preparing Exhibit A-2
simply used averaging figures for various reasons of convenience.
In any event these matters are not raised in the Reply to the
Notice of Appeal and although that may not be fatal to the
Respondent it makes it extremely difficult for the Appellant to
know what proof or counterproof he has to make to establish his
right to employment benefits.
[5] Another possible negative for the
Appellant is that the only documents submitted were the Exhibits
mentioned although other documents such as slips detailing the
catch and other pertinent evidence was lost or destroyed in a
fire.
[6] On balance however I accept the
evidence of the Appellant and Mr. Foster and their credibility.
The Reply to the Notice of Appeal says the Appellant did not make
the catch and that he bought some of the clams and that excludes
him from insurability. The evidence of the Appellant however is
that he did make the catch and did not buy any clams.
[7] Moreover, the employment insurance
premiums were paid by the Payor on behalf of the Appellant. Also
it is difficult to believe that the Payor would deliberately
falsify the Payroll History Reports (Exhibits A-1 and A-2) and
the employment reports (R-2 and R-4).
[8] In conclusion, on a balance of
probabilities, I am of the opinion that the Appellant did the
work that he says he did and that he was engaged under a contract
of service and qualified for the employment benefits that he
claimed. Consequently, the appeal is allowed and the decision of
the Minister is vacated.
Signed at Ottawa, Canada, this 8th day of December 2003.
O'Connor, J.
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