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Citation: 2003TCC525
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Date: 20030812
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Docket: 2002‑1469(EI)
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BETWEEN:
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DENIS BORDELEAU,
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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
Somers, D.J.
[1] This
appeal was heard at Jonquière, Quebec, on June 17, 2003.
[2] By
letter dated March 27, 2002, the Minister of National Revenue (the
"Minister") notified the Appellant of his decision by which he
determined that there were 245 hours of insurable employment as a result
of his employment with Gestion D.D.G. Inc., the Payor, during the period from
July 3 to August 4, 2001.
[3] The
burden of proof rests on the Appellant. He must establish, on a balance of
probabilities, that the Minister’s decision was unfounded in fact and in law.
Each case stands on its own merits.
[4] In
making his decision, the Minister relied on the following presumptions of fact
which were admitted or denied by the Appellant:
(a) The Payor is a business that
cuts brush for Abitibi Consol and performs chemical spraying for Hydro‑Québec.
(admitted)
(b) During the period at issue, the
Appellant was hired as a superintendent on one of the Payor’s job sites.
(admitted)
(c) The Appellant’s work involved
cleaning the four or five trailers where the Payor’s workers lived. He swept,
washed the floors, and cleaned the bathrooms. On occasion the Appellant checked
the Payor’s generators. (denied)
(d) The workers had 20 days of
continuous work in the job site, followed by eight days of rest. (denied)
(e) The Appellant worked for
remuneration of $650 per week. (admitted)
(f) According to the Payor, the
Appellant could work eight or nine hours per day. He never exceeded
10 hours of work per day. (denied)
(g) The Appellant did not fill out
any time sheets for the Payor. (admitted)
(h) During the period in question,
the Appellant worked on the job site for 25 days. (admitted)
(i) On August 27, 2001,
the Payor issued a record of employment to the Appellant, for the period from
July 3 to August 4, 2001, indicating that he had worked
245 hours during this period. (denied)
(j) The Appellant claims that,
during the period at issue, he worked 330 hours for the Payor, whereas the
Payor states that he accumulated 245 hours of work during the same
period. (admitted)
[5] The
Payor is a business that cut brush for Abitibi Consol and conducted chemical
spraying for Hydro‑Québec.
[6] The
Appellant admitted that he was hired as a superintendent on one of the Payor’s
job sites during the period at issue.
[7] According
to the Appellant’s testimony, he was hired to clean the five trailers at the
beginning of his job and two more later. The workers lived in the trailers.
[8] The
Appellant was responsible for sweeping and washing the floors and cleaning the
bathrooms. He says, he was an assistant cook and had to go get water at the
airport with the Payor’s truck.
[9] According
to his testimony, he had to work 13 hours per day for 21 consecutive
days in order to receive eight days off. According to him, he therefore worked
330 hours during the period at issue.
[10] The Appellant submitted a list of hours worked during the period at
issue as Exhibit A‑1.
[11] Under cross‑examination, he admitted that his tasks did not
involve being an assistant cook but that the cook wanted his help in this
capacity.
[12] The Appellant recognized that eight to ten hours per day was
sufficient to accomplish the duties listed in subparagraph 5(c) of the
Reply to the Notice of Appeal.
[13] He explained that two or three days after he arrived on the field, the
cook asked him to be his assistant cook, although Mr. Gagnon, his boss,
was not on site when the request was made.
[14] The 330 hours calculated by the Appellant included the hours
worked as assistant cook. He recognized that according to the agreement he was
required to work eight to nine hours per day at a salary of $650 per week.
[15] On August 27, 2001, the Payor issued a record of employment
(Exhibit I‑1) to the Appellant for the period from July 3 to
August 4, 2001, indicating that he had worked for 245 hours
during the period at issue.
[16] During his testimony, Marc Girouard, the Payor’s comptroller,
stated that he had sent a copy of the record of employment to the Appellant’s
home, on Barrette Street in Jonquière, Quebec. The Appellant denies having
received a copy of the record of employment.
[17] He explained that the Appellant, as the result of an agreement with
the Payor, was hired and that his duties were those described in
subparagraph 5(c) of the Reply to the Notice of Appeal. He added that the
salary was set at $650 per week plus 4% vacation pay.
[18] He denied that the Appellant’s duties involved being assistant cook.
The Payor’s foreman, Normand Desbiens, who was on the job site during the
period in question, filled out the Appellant’s time sheets (Exhibit I‑2)
entering 245 hours worked.
[19] In rebuttal, the Appellant stated that he had seen
Norman Desbiens only on the first three days on the job site. He did not
believe that Mr. Desbiens was his foreman. He instead thought his foreman
was a certain Jean‑Marc, whose family name he does not know.
[20] The Appellant recognized that he was satisfied with the $650 per week
salary even as assistant cook.
[21] The number of hours worked by the Appellant during the period at issue
must be determined.
[22] The Appellant admitted that he was hired to carry out the duties
described in subparagraph 5(e) of the Reply to the Notice of Appeal at a
salary of $650 per week.
[23] The comptroller had not been advised that the Appellant was to perform
duties other than those already described.
[24] The cook did not have the authority to hire the Appellant as assistant
cook. This additional duty involved additional hours and was counter to the
agreement that had been reached.
[25] Normand Desbiens, described as foreman by the comptroller,
prepared the Appellant’s time sheets, setting the hours at 245.
[26] Subsection 10(1) of the Employment Insurance Regulations reads
as follows:
Where a person's earnings are not
paid on an hourly basis but the employer provides evidence of the number of
hours that the person actually worked in the period of employment and for which
the person was remunerated, the person is deemed to have worked that number of
hours in insurable employment.
[27] The burden of proof was on the
Appellant: he had to prove that he had worked 330 hours and he did not do
so.
[28] During the period at issue, the Appellant accumulated 245 hours
of insurable employment, within the meaning of the Act, with the Payor.
[29] The appeal is dismissed and the decision of the Minister is upheld.
Signed at Ottawa, Canada, this 12th day of August, 2003.
Somers, D.J.
on this 15th day
of March 2004.
Shulamit Day‑Savage,
Translator
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