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Citation: 2003TCC335
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Date: 20030515
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Docket: 2002-1174(EI)
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BETWEEN:
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S & S HARVESTING LTD.,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent,
and
SURINDER K. DHANDA, SURJIT K. DHALIWAL,
TARSEEM BEESLA,
Intervenors.
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REASONS FOR ORDER
Little, J.
A. FACTS
[1] The
Appellant was incorporated under the laws of the Province of British Columbia.
[2] In
1997, the Appellant operated a labour contract business. The Appellant also
leased over 100 acres of blueberries for harvest and sale.
[3] In
carrying out the labour contract business the Appellant supplied approximately
110 workers to provide services for its clients as required as farm workers,
berry pickers and labourers (The individuals supplied by the Appellant to its
clients are hereinafter referred to as "Workers").
[4] The
Minister of National Revenue (the "Minister") determined that the
Workers were not employed in insurable employment by the Appellant during
various periods in 1997. As a result of the decision of the Minister the
Workers were denied benefits under the Employment Insurance Act ("EI
Act") for the 1997 year.
[5] Eighty-three
of the 110 Workers filed Notices of Appeal to the Tax Court respecting the
decision of the Minister.
[6] The
Appellant also filed a Notice of Appeal to the Tax Court.
B. ISSUE
[7] On
the 4th day of April 2003 the Appellant filed a Notice of Motion to the Court.
[8] In
the Notice of Motion the Appellant asked for a number of directions from the
Court including the following:
The Motion is for directions and an
order that:
1. The issues on
this appeal be defined and determined at separate hearings, in the following
order: first Jurisdictional issues, second Natural Justice issues, and last the
Substantive issues regarding the appeal of the decision of the Minister
rendered pursuant to s. 93(3) of the Employment Insurance Act regarding
the periods of employment and amounts of insurable hours and earnings of the
workers subject to this appeal.
2. Prior to the
hearing of each of the Jurisdictional, Natural Justice and Substantive issues,
the Appellant and Respondent be entitled to both discovery of witnesses and
documents, each from the other, relevant only to the issues to be determined at
those hearings.
[9] Michael
Carroll, Q.C. counsel for the Appellant, said that the reason the Appellant
wished to "bifurcate" the issues of this appeal is that the Appellant
believes that this would be the most efficient and cost effective way of
resolving the appeal. Mr. Carroll said:
We would suggest that the issues of
procedural fairness, jurisdiction and delay be heard first. And if the
Appellant was unsuccessful in this phase, then the Court could proceed to hear
the evidence and the argument with respect to the merits. (Transcript p. 20, l.
11-15)
[10] Michael Taylor, counsel for the Respondent, said that the Minister
opposes any move to bifurcate or split this matter into separate stages.
C. ANALYSIS
[11] In considering this motion I have reviewed the Employment Insurance
Act, the Tax Court of Canada Rules of Procedure respecting the
Employment Insurance Act, the Tax Court of Canada Rules (General
Procedure) and a number of decisions of the Tax Court and the Federal
Court.
[12] The Appellant's appeal was filed under the Employment Insurance Act.
Subsection 103(1) of the EI Act reads as follows:
103. (1) The Commission or a
person affected by a decision on an appeal to the Minister under section 91 or
92 may appeal from the decision to the Tax Court of Canada in the prescribed manner
within 90 days after the decision is communicated to the person, or within such
longer time as the Court may allow on application made to it within those 90
days.
(Note: Section 91
provides for an appeal of the ruling. Section 92 provides that an employer may
appeal to the Minister for a reconsideration of the assessment.)
Subsection 103(3)
of the EI Act reads:
(3) On an appeal, the Tax Court of
Canada
(a) may vacate,
confirm or vary a decision on an appeal under section 91 or an assessment
that is the subject of an appeal under section 92.
Subsection 104(1)
of the EI Act reads:
104. (1) The Tax Court of Canada and the Minister
have authority to decide any question of fact or law necessary to be decided in
the course of an appeal under section 91 or 103 or to reconsider an assessment
under section 92 and to decide whether a person may be or is affected by the
decision or assessment.
Section 105 of
the EI Act reads:
105. The decision of the Tax Court of Canada under
section 103 is final and, except for judicial review under the Federal Court
Act, is not subject to appeal or to review by any court.
[13] Rule 3 of the Tax Court of Canada Rules of Procedure respecting
the Unemployment Insurance Act (now the Employment Insurance Act)
found in the Canada Gazette, Part II, Vol. 124, No. 22, reads:
3. These rules shall be liberally
construed to secure the just, least expensive and most expeditious
determination of every appeal on its merits.
Rule 27(4) reads:
(4) Where matters are not provided for in these
rules, the practice shall be determined by the Court, either on a motion for
directions or after the event if no motion is made.
[14] Mr. Taylor, counsel for the Respondent, said:
...the Respondent opposes the
Appellant's request to bifurcate this matter, to have essentially a round of
discoveries devoted to what they call threshold issues, followed by a trial of
those issues, ultimately to be followed by another round of discoveries on the
actual merits of the employment question, followed by a trial of those issues. (Transcript p. 25, l.
2-8)
[15] Mr. Taylor outlined three reasons for his position:
1. The first is
that such procedure is unprecedented in the practice of this Court and is not
provided for in the applicable rules.
2. The second
reason is that the threshold issues are matters within the jurisdiction of the
Federal Court.
3. The threshold
issues will not determine the outcome of the appeal.
[16] Mr. Taylor said that in his opinion the procedure proposed by the
Appellant will create duplications of time and effort.
[17] Mr. Taylor also pointed out that the Appellant's proposal makes no
provision for the interest of the other 83 Workers who have appeals and for the
intervenors.
[18] Mr. Taylor said:
...the Tax Court is given explicit
powers to vary, vacate or confirm the decision of the Minister and to make its
own finding on the substance of the appeal. It's not limited to judicial review
function.
(Transcript, p. 34, l. 1-4)
[19] Mr. Taylor also said:
And I would also point out that
section 104 of the E.I. Act grants the Tax Court the authority to decide any
question of fact or law necessary to be decided in the course of an appeal
under section 103.
(Transcript, p. 34, l. 5-8)
[20] In reviewing the rules outlined in the EI Act and the Rules of
the Tax Court of Canada quoted above it will be noted that the rules governing
the procedure in this Court are designed to get matters before the Court on
their merits because, ultimately, this Court's function is to decide the merits
of an appeal. I am not persuaded that the Appellant's motion would assist or
simplify the matter. I agree with counsel for the Respondent that the
Appellant's proposal would probably create unnecessary delay and additional
costs.
C. CONCLUSION
[21] Having considered the arguments of counsel for the parties and the
relevant case law, I have concluded that the Appellant's motion should be
dismissed, with costs in the cause.
[22] Surinder K. Dhanda appeared as an intervenor. During the hearing the
Court asked the following question:
Q. His Honour:
Does Surinder Dhanda wish to say
anything with respect to this position? (Transcript p. 56, l. 22-23)
Surinder Dhanda said:
I'd just want to deal with it, the
sooner the better.
(Transcript p. 57, l.
2-3)
Signed at Vancouver, British Columbia, this
15th day of May 2003.
J.T.C.C.
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