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[OFFICIAL ENGLISH TRANSLATION]
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Docket: 2000-2125(EI)
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BETWEEN:
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SYLVAIN PROULX,
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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
January 29, 2003, at Trois-Rivières, Québec,
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Before:
The Honourable Judge Alain Tardif
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Appearances:
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For
the Appellant:
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The
Appellant himself
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Counsel
for the Respondent:
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Simon-Nicolas
Crépin
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JUDGMENT
The appeal is
dismissed and the Minister's decision is confirmed in accordance with the
attached Reasons for Judgment.
Signed at Ottawa,
Canada, this 25th day of February 2003.
J.T.C.C.
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[OFFICIAL ENGLISH
TRANSLATION]
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Citation: 2003TCC77
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Date: 20030225
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Docket: 2000-2125(EI)
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BETWEEN:
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SYLVAIN PROULX,
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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
Tardif, J.T.C.C.
[1] The
appellant admitted that he had been employed by a large company, which had
engaged in certain practices inconsistent with the Employment Insurance Act
and its Regulations. The employer had established two logs for recording
the hours worked by its employees so that the records of employment it issued
when the worker was laid off stated that he had worked full weeks for maximum
insurable earnings, whereas in fact the work could be grouped together in a
single week but performed over a much longer period of time.
[2] He
acknowledged that he had participated in the system consisting in accumulating
hours of work so that they were subsequently grouped together to constitute
insurable weeks. The procedure is generally known as "time banking"
or "bundling of hours".
[3] The
procedure benefits the participating employee, who receives employment
insurance benefits during weeks when he would not normally be entitled to them.
In other situations, its benefits are greater than those to which he would
normally be entitled. Since the insurance benefits of an employee working only
two days in a week would thus be reduced for that same week, the
two days are carried over.
[4] "Hour
banking" or "bundling of hours" also enables the employee to
receive much higher benefits since the reported insurable earnings generally
amount to the insurable maximum; hours are banked until they total full weeks,
that is to say until they make up five consecutive days of work. In fact, the
work could have been done in one or two days over various weeks.
[5] For
example, with an employee's express or tacit consent, an employer banks
five days of work performed at a rate of one day a week and groups
them together so that he can issue a record of employment as though the
employee had worked the hours over five consecutive days. Overtime is often
banked as well.
[6] In
this case, everything was revealed in a large investigation involving more than
100 employee files. The investigation was followed by criminal
prosecutions following which the employer pleaded guilty and was ordered to pay
a large fine.
[7] The
appellant admitted that he had been involved in the "time bank". His
only argument in support of the appeal was that he had been more a victim than
an accomplice. That unfortunately is not sufficient ground to explain his
participation, all the more so since he had benefited from the practice at the
time, without ever denouncing it.
[8] To
justify his failure to denounce the practice, the appellant submitted that he
would obviously have lost his job if he had taken such an initiative. However,
the work was regulated by statutes and regulations and workers also had a
powerful union organization which could very well have denounced the system
without that having any consequences for the worker or workers at the origin of
the denunciation. The practice could also have been denounced as part of a
group initiative, thus preventing any vendetta against the person or persons
who took the initiative. There is no doubt that the appellant agreed at least
tacitly to the time banking practice.
[9] The
burden of proof is on the appellant, who, in order to win his case, had to
prove that his records of employment were consistent with the actual situation
with regard to the dates on which his work was performed. In other words, he
would have had to show that he had not participated directly or indirectly in
any scheme to falsify all the information relating to the performance of his
work.
[10] As the
appellant did not make that essential proof, his appeal must be dismissed.
Signed at Ottawa, Canada, this
25th day of February 2003.
J.T.C.C.