Date: 20010910
Docket:
2000-4970-EI
BETWEEN:
ROBERT
BORDELEAU,
Appellant,
and
THE MINISTER OF
NATIONAL REVENUE,
Respondent.
Reasonsfor
Judgment
Somers,
D.J.T.C.C.
[1]
This appeal was heard at Montréal, Quebec, on July 10,
2001.
[2]
By letter dated October 26, 2000, the Minister of National
Revenue ("the Minister") informed the appellant of his
decision that the appellant had not provided services to the
payer, TMG Solution Retail Performance Group, Division de Mosaic
Group Inc., and had not held employment during the period from
November 29 to December 31, 1999. The Minister also informed the
appellant that the $3,070 he had received from the payer was a
retiring allowance and hence excluded from insurable
earnings.
[3]
Subsection 5(1) of the Employment
Insurance Act reads in part 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 . . .
[4]
Subsection 10(1) of the Employment Insurance Regulations
reads as follows:
PART I
UNEMPLOYMENT
BENEFITS
Hours of Insurable
Employment - Methods of
Determination
10.(1)
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.
[5]
The burden of proof is on the appellant. He
has to show on a balance of evidence that the Minister's
decision is unfounded in fact and in law. Each case stands on its
own merits.
[6]
In making his decision, the Minister relied on the following
facts, which were either admitted or denied:
[TRANSLATION]
(a)
the payer is a marketing company; (admitted)
(b)
the payer had a contract with the Clearnet cellular telephone
company to set up promotional booths at Carrefour de l'Estrie
in Sherbrooke; (admitted)
(c)
the appellant was hired by the payer to manage four booths;
(denied)
(d)
the appellant signed an agreement with the payer for the period
from October 28, 1999, to January 15, 2000; (admitted)
(e)
on November 26, 1999, the payer notified the appellant that his
employment was terminated as of that date; (denied)
(f)
the appellant did not provide services to the payer after
November 26, 1999; (denied)
(g)
the appellant brought an action for $3,070 against the payer for
unpaid wages; (denied)
(h)
on June 9, 2000, the Court of Quebec, Civil Division, Small
Claims Division, ordered the payer to pay the appellant $3,000
plus $70 in costs; (denied)
(i)
on July 6, 2000, the payer paid the appellant $2,166.16 after
making deductions for taxes and contributions to social programs.
(admitted)
[7]
The payer is a marketing company. It had a contract with the
Clearnet cellular telephone company to set up promotional booths
at Carrefour de l'Estrie in Sherbrooke.
[8]
According to the appellant, the payer hired him to manage a
booth. The term of the contract was from October 28, 1999, to
January 15, 2000.
[9]
The appellant filed a letter from the payer dated November 26,
1999 (Exhibit A-1, Tab 1) informing him that his employment
was being terminated that same day. The appellant admitted that
he did not provide services to the payer after November 26,
1999.
[10]
The Court notes that the Small Claims Division of the Court of
Quebec issued a default judgment ordering the payer to pay the
appellant $3,000 plus $70 in costs (Exhibit A-1, Tab 9). On
July 6, 2000, the payer paid the appellant $2,166.16 after making
deductions for taxes and contributions to social
programs.
[11]
The issue is whether the appellant held insurable employment from
November 29 to December 31, 1999.
[12]
The evidence showed that the appellant did not work for the payer
after receiving his letter of discharge on November 26, 1999. It
is true that the Small Claims Division of the Court of Quebec,
through a default judgment, ordered the payer to pay the
appellant $3,000 in compensation. Pursuant to that judgment, the
appellant received $2,166.16 from the payer after deductions for
taxes and contributions to social programs; however, the deciding
factor is that the appellant did not work during the period at
issue.
[13]
Parliament has specified what constitutes insurable earnings.
Subsection 10.1(1) of the Employment Insurance
Regulations reads as follows:
PART I
UNEMPLOYMENT
BENEFITS
Hours of Insurable
Employment - Methods of
Determination
.
. .
10.1 (1) Where an insured
person is remunerated by the employer for a period of paid leave,
the person is deemed to have worked in insurable employment for
the number of hours that the person would normally have worked
and for which the person would normally have been remunerated
during that period.
[14]
Paragraph 1(1)(b) of the Insurable Earnings and
Collection of Premiums Regulations provides as
follows:
1. (1) The definitions in
this subsection apply in these Regulations.
.
. .
« retiring
allowance » means an amount received by a
person
.
. .
(b)
in respect of a loss of an office or employment of the person,
whether or not received as, on account or in lieu of payment of,
damages or pursuant to an order or judgment of a competent
tribunal.
[15]
Subsection 2(3) of the said Regulations reads in part as
follows:
Earnings from Insurable
Employment
2. . . .
(3)
For the purposes of subsections (1) and (2), "earnings"
does not include
.
. .
(b)
a retiring allowance.
[16]
Parliament has clearly specified that a worker's employment
is not insurable if that worker has received a retiring
allowance.
[17]
Parliament has made it clear that employment is insurable for the
hours actually worked and not for what is received as a retiring
allowance.
[18]
The $3,070 received by the appellant was a retiring allowance
within the meaning of the Insurable Earnings and Collection of
Premiums Regulations and is not included in insurable
earnings under subsection 2(3) of those Regulations.
[19]
The appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 10th day of
September 2001.
"J. F. Somers"
D.J.T.C.C.
Translation certified true on this 31st
day of May 2002.
[OFFICIAL ENGLISH
TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-4970(EI)
BETWEEN:
ROBERT
BORDELEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on July 10, 2001, at
Montréal, Quebec, by
the Honourable Deputy Judge J. F.
Somers
Appearances
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Diane Lemery
JUDGMENT
The appeal is dismissed and the decision of the Minister is
confirmed in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada,
this 10th day of September 2001.
D.J.T.C.C.
Translation certified true
on this 31st day of May 2002.
Erich Klein, Revisor
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