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Docket: 2002-1823(EI)
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BETWEEN:
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LINDSAY ROUNDPOINT,
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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 March 12, 2003, at Ottawa,
Ontario.
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Before: The Honourable Judge Lucie Lamarre
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Appearances:
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For the Appellant:
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The Appellant herself
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Counsel for the Respondent:
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Ronald MacPhee
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____________________________________________________________________
JUDGMENT
The
appeal pursuant to subsection 103(1) of the Employment
Insurance Act is dismissed and the decision of the Minister
on the appeal made to him under section 91 of the Act is
confirmed.
Signed at Ottawa, Canada, this 17th day of March 2003.
J.T.C.C.
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Citation:2003TCC131
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Date: 20030317
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Docket: 2002-1823(EI)
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BETWEEN:
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LINDSAY ROUNDPOINT,
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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
Lamarre, J.T.C.C.
[1] The appeal from the decision by
the Minister of National Revenue ("Minister") that the
appellant was not employed in insurable employment while working
for Bruce Roundpoint o/a Roundpoint Construction during the
period from March 1 to October 12, 2001 because they were not
dealing with each other at arm's length within the meaning of
paragraph 5(2)(i) of the Employment Insurance Act
("Act"), is dismissed.
[2] The appellant has not convinced me
that the Minister (i) acted in bad faith or for an improper
purpose or motive, (ii) failed to take into account all the
relevant circumstances, or (iii) took into account irrelevant
factors in making his decision. (See Canada v. Jencan
Ltd., [1998] 1 F.C. 187; [1997] F.C.J. 876, paragraph
37.)
[3] The appellant admitted the
following assumptions of fact relied upon by the Minister in his
Reply to the Notice of Appeal ("Reply") and set out in
paragraph 6 thereof:
(a) the Payer is involved
in the construction area (heavy equipment);
(b) Bruce Roundpoint is the sole
owner of the business;
(c) the Appellant is
related to the Payer as being the Payer's daughter;
(d) the Appellant was hired as
"Receptionist" under a verbal agreement;
(e) the Appellant was
responsible for filing, data entry, errands and banking;
(f) the Appellant was paid
$20.00 per hour;
(g) the Appellant was paid
cash, on a weekly basis;
(h) the Payer determined
the Appellant's rate of pay;
(i) the Appellant
was expected to work 40 hours per week;
(j) unlike the unrelated
workers, the Appellant did not have to follow a fixed schedule of
work;
(k) unlike the unrelated workers, the
Appellant did not record her hours of work on a time card;
(l) all the equipment and
the office were provided by the Payer;
. . .
(n) unlike the unrelated
workers, the Appellant did not have to advise the Payer when late
for work;
(o) the Appellant worked for the Payer
on a part time basis before the period in question;
(p) the Appellant is related to the
Payer within the meaning of the Income Tax Act;
[4] The appellant did not admit one
assumption of fact stated in paragraph 6 of the Reply, namely the
following:
(m) unlike the unrelated
workers, the Appellant was provided with a Payer's car.
[5] The appellant took issue with the
assumption stated in paragraph 6(q) of the Reply, namely the
following:
(q) the Appellant is not dealing with
the Payer at arm's length.
[6] Although one assumption of fact
was denied, all the remaining facts admitted by the appellant are
sufficient in law to support the Minister's decision that the
parties would not have entered into a substantially similar
contract of service if they had been dealing with each other at
arm's length. In such a case, this Court is not at liberty to
overrule the Minister merely because one or more of the
Minister's assumptions are disproved at trial, even though
this Court might have come to a different conclusion. As was said
in Jencan Ltd., supra, at paragraph 50:
. . . In other words, it is only where the Minister's
determination lacks a reasonable evidentiary foundation that the
Tax Court's intervention is warranted.
[7] For this reason the appeal is
dismissed and the decision of the Minister is confirmed.
Signed at Ottawa, Canada, this 17th day of March 2003.
J.T.C.C.
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