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Citation: 2003TCC323
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Date: 20030604--
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Docket: 2002-4621(EI)
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BETWEEN:
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DONALD DOYLE,
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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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and
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TYSON HAMLYN O/A STRAITS AVIATION,
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Intervener.
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REASONS FOR JUDGMENT
Somers,
D.J.T.C.C.
[1] This
appeal was heard in Montreal, Québec, on April 2, 2003.
[2] The
Appellant is appealing a decision made by the Minister of National Revenue (the
"Minister") that the employment held with Tyson Hamlyn o/a Straits
Aviation, the Payer, during the period at issue from May 28 to June 29, 2001
was insurable because there existed a contract of service between him and the
Payer. Furthermore, the Minister informed the Appellant that the insurable
hours for the period were established at 152 and the insurable earnings at
$1,520.00.
[3] Paragraph
5(1)(a) of the Employment Insurance Act reads as follows:
5(1) Subject to subsection (2),
insurable employment is
(a) employment in Canada by
one or more employers, under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the employed person
are received from the employer or some other person and whether the earnings
are calculated by time or by the piece, or partly by time and partly by the
piece, or otherwise;
...
[4] The
burden of proof is on the Appellant. He must show on a balance of probabilities
that the Minister erred in fact and in law in his decision. Each case stands on
its own merits.
[5] In
reaching his decision, the Minister relied on the following assumptions of
fact, which were admitted or denied:
a) the Payer was operating a
air-taxi service in Newfoundland; (admitted)
b) the Payer was operating under
the trading name of "Staits Aviation"; (admitted)
c) on May 8, 2001, the Appellant
was hired as Pilot by the Payer; (admitted)
d) the Appellant had to be
certified by Transport Canada; (admitted)
e) the Appellant was not certified
prior to May 18, 2001; (denied)
f) on May 28, 2001, the Appellant
started to work; (denied)
g) the Payer had only the Appellant
as Pilot; (denied)
h) Tyson Hamlyn did the
administrative work; (denied)
i) the Appellant was paid an
hourly rate of $10.00 by the Payer; (denied)
j) following the Payer payroll
sheet, the Appellant worked 40 hours by week the first two weeks and 24 hours
during three other weeks; (denied)
k) The Appellant worked 152 hours
during the five-week period; (denied)
l) during the five-week period,
the Appellant flew only one charter flight; (admitted)
m) on June 30, the employment was
terminated; (denied)
n) on July 31, 2001, the Payer
issued to the Appellant a record of employment stating that he worked from May
28, 2001 to June 29, 2001 and the total insurable hours for the period were 152
hours and the total insurable earnings for the period were $1,520.00; (denied)
o) the Appellant made a complaint
under the Canadian Labour Code concerning the employment period, the hours
worked and the earnings calculated by the Payer; (denied)
p) on August 8, 2001 an Inspector
of the Department of Labour maintained the Payer's calculation of the
Appellant's wages and number of hours worked; (denied)
q) on January 11, 2002, a Referee,
under the Wage recovery appeal under Part III of the Canada Labour Code,
confirmed the decision of the Inspector as filed on August 8, 2001. (denied)
[6] The Payer was operating an air-taxi service in
Newfoundland under the trade name of "Straits Aviation".
[7] On May 8, 2001 the Appellant was hired as a
Pilot, certified as such by Transport Canada.
[8] The Appellant testified he was hired, by the
Payer, as of May 8, 2001 (Exhibit A-1); his responsabilities were that of
operations manager and chief pilot (Exhibit A-2).
[9] According
to the Appellant his salary had been fixed at $400.00 per week and not on the
basis of $10.00 an hour. During the period in question he worked as operations
manager and pilot, but flew only one charter flight.
[10] On July 31, 2001, the
Payer issued to the Appellant a record of employment stating that he had worked
from May 28, 2001 to June 29, 2001 and that the total insurable hours for the
period were 152 and the total insurable earnings were $1,520.00.
[11] The Appellant made a
complaint under the Canadian Labour Code concerning the employment period, the
hours worked and the earnings calculated by the Payer. On August 8, 2001 an
Inspector of the Department of Labour maintained the Payer's calculation of the
Appellant's wages and the number of hours worked (Exhibit A-4).
[12] On January 11, 2002, a
Referee, under the Wage recovery appeal under Part III of the Canada Labour
Code, confirmed the decision of the Inspector as filed on August 8, 2001 (Exhibit A-5).
[13] The issue is to determine the number of hours to be credited to the
Appellant as an employee of the Payer.
[14] The Appellant produced, for the Department of Transport, a time sheet
which he had prepared himself. According to the Appellant, who happenned to be
the only pilot employed by the Payer, his time was consumed as operations
manager and as chief pilot.
[15] The Payer operated an air-taxi service; flights were to be arranged on
request only. In fact, the Appellant made only one flight during the period at
issue; the rest of the time he said he was on stand-by. While on stand-by he
had to assume the duties of operations manager, such as servicing the plane,
checking the weather at the airport and at the place of destination. It is to
be noted that the Appellant lived in a mobile home on the airport grounds.
[16] Canadian Air regulations 703.07(2) states:
",..For the purposes of
subsection (1), an applicant shall have...
(b) managerial personnel who have been approved by the
Minister in accordance with the Commercial Air Service Standards, are employed
on a full-time basis and perform the functions related to the following
positions, namely,
(i) operations manager,
(ii) chief pilot,...
[17] Jean-Guy Carrier, aviation inspector for Transport Canada testified
that the Appellant had a certificate as operations manager and chief pilot on
May 18, 2000.
[18] Commenting on Canadian Air, Regulation 703.07(2), this witness stated
"employed on a full-time basis", did not mean that a person had to be
on duty 40 hours per week. The Regulation implies only that the operations
manager or chief pilot should be given sufficient time to perform the necessary
functions relative to the position.
[19] The Appellant produced his time sheet (Exhibit A-3) based on 40-hour
shifts. Since the Payer's operations consisted of air service on demand, the
Appellant said he had to be constantly on duty.
[20] The Appellant admitted he received the sum of $1,520.00 plus $60.80 as
vacation pay.
[21] The Appellant acknowledged he had to have a flight training record,
which was completed on May 25, 2000.
[22] In his application for unemployment benefits, dated July 20, 2001, the
Appellant indicated that the period of employment was from May 8, 2001 to
July 8, 2001 (Exhibit R-1, Tab 2), while on the record of employment,
signed by the Payer, the period of employment is from May 28 to June 29, 2001
for a total of 152 hours (Exhibit R-1 Tab 1). The Payer's time sheet
indicated as well the period of employment as being from May 28 to June 29,
2001.
[23] In a letter dated August 1, 2001, the Payer stated that the period of
employment was from May 28 to June 29, 2001 (Exhibit R-1, tab. 6), that the
rate of pay was $10.00 per hour and that training on company aircraft was at
the expense of the potential employee. The Payer also stated that "The
cost of your 3 hours training is $150.00 dollars which is at $50.00 per
hour to cover the cost of fuel".
[24] In response to this letter from the Payer, the Appellant, in a letter
dated October 15, 2001, stated: "... I am therefore claiming that you
reimburse me the $150 00 dollars deducted from my wages".
[25] There is contradiction between the evidence of the Appellant and that
of the Payer as to the period of employment. The Appellant has the burden to
show that his period of employment indicated on his application for
unemployment benefits is more accurate than the one determined by the Payer.
[26] The Appellant could not be considered as an employee before he
finalized his flight training term on May 25, 2001; therefore it is reasonable
to conclude that he started working on May 28, 2001.
[27] During his period of employment the Appellant claimed from the Payer
40 hours a week. Transport Canada stated that it was not necessary for the
operations manager to be on duty 8 hours a day. It was sufficient for him to be
on duty for the amount of time necessary to perform his duties.
[28] The Appellant had only one commercial flight during his period of
employment with the Payer. It is only reasonable to conclude that the Appellant
did not work 40 hours per week. Futhermore the Appellant lived in a mobile
house on the airport grounds and he did not have to be at the airport hangar
8 hours a day as claimed.
[29] The Appellant stated that the termination of employment was on
July 8, 2001, contrary to the termination period of June 29, 2001
indicated on the record of employment. According to the information obtained by
the appeals officer, who testified at the hearing, the weather was bad from
June 29 to July 7, 2001 and no flight has been scheduled between those two
dates. In the circumstances, the June 29, 2001 date is more acceptable for the
termination of the employment.
[30] Considering the evidence, the Appellant has failed in his onus of
establishing that the Minister erred in his decision.
[31] Consequently the appeal is dismissed and the Minister's decision is
confirmed.
Signed at Ottawa, Canada, this 4th day of
June 2003.
D.J.T.C.C.
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