Date:
20010411
Docket:
2000-2230-EI
BETWEEN:
SUCO :
SOLIDARITÉ UNION COOPÉRATION,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent,
and
NICOLE
POMERLEAU,
Intervenor.
Reasons
for Judgment
Watson,
D.J.T.C.C.
[1]
This appeal was heard at Montréal, Quebec, on January 10,
2001.
[2]
The dispute concerns the determination of the insurable earnings
and the insurable hours accumulated by Nicole Pomerleau from
February 18, 1996, to February 28, 1997, when she worked in
Peru as a volunteer for the appellant, Suco :
Solidarité Union Coopération.
[3]
On November 9, 1998, the respondent determined that
Ms. Pomerleau held insurable employment from March 1, 1995,
to February 28, 1997, when she worked for the appellant.
Unfortunately for the appellant, that determination was not
appealed to this Court within the prescribed time and the
question of whether the employment held by Ms. Pomerleau
during the period at issue was insurable within the meaning of
the Employment Insurance Act ("the Act")
is therefore not before the Court in this appeal. The dispute
relates solely to the determination by the Minister of National
Revenue ("the Minister") dated June 3, 1999, of the
insurable earnings and the insurable hours accumulated from
February 18, 1996, to February 28, 1997.
[4]
In making his decision, the Minister relied on the following
assumptions of fact:
[TRANSLATION]
(a)
Nicole Pomerleau held insurable employment when she worked for
the appellant from March 1, 1995, to February 28,
1997.
(b)
The worker's schedule was 9:00 a.m. to 5:00 p.m., or 40 hours
a week.
(c)
From August 25, 1996, to February 28, 1997, the appellant paid
Ms. Pomerleau:
·
a monthly living
allowance of $910.00;
·
a monthly allowance
of $416.00 for a principal residence and a second
residence;
·
a monthly
reintegration allowance of $200.00;
·
a monthly allowance
of $100.00 for costs incurred in Canada;
·
$300.00 to
reimburse her moving costs on her return to
Canada.
(d)
During that period, Ms. Pomerleau received $10,434.00 through the
various allowances and the reimbursement of costs.
[5]
At the hearing, the appellant's agent denied paragraphs (a)
and (b) and admitted paragraphs (c) and (d).
[6]
The appellant argued that Ms. Pomerleau was a
"co-operant/volunteer" when she worked for it in
Peru and that the amounts she received are not insurable earnings
since they were not wages but rather amounts that enabled her to
meet her basic food, clothing and transportation needs for her
stay in Peru; the amounts paid to volunteers like Ms. Pomerleau
can be distinguished from wages in that they are in no way
related to the volunteers' training or experience but depend
rather on the cost of living in the place where the work is
done.
[7]
The respondent argued, on the contrary, that the services
provided to the appellant by the employee constitute insurable
employment; accordingly, the number of insurable hours for the
period from February 18, 1996, to February 28, 1997,
amounts to 1,935 in accordance with sections 10 and 94.1 of the
Employment Insurance Regulations ("the
Regulations"), while the earnings amount to $10,434
in accordance with subsection 3(1) of the Unemployment
Insurance (Collection of Premiums) Regulations, now
subsection 2(1) of the Insurable Earnings and Collection of
Premiums Regulations.
[8]
The burden of proof is on
the appellant, which must show on the balance of evidence that
the Minister's decision is unfounded in fact and in law. Each
case turns on its own facts.
[9]
Section 2 of the Insurable Earnings and Collection of Premiums
Regulations reads in part as follows:
2. (1) For
the purposes of the definition "insurable earnings" in
subsection 2(1) of the Act and for the purposes of these
Regulations, the total amount of earnings that an insured person
has from insurable employment is
(a)
the total of all amounts, whether wholly or partly pecuniary,
received or enjoyed by the insured person that are paid to the
person by the person's employer in respect of that
employment, and
(b)
the amount of any gratuities that the insured person is required
to declare to the person's employer under provincial
legislation.
. .
.
(3) For the
purposes of subsections (1) and (2), "earnings" does
not include
(a)
the value of board, lodging and all other benefits received or
enjoyed by a person in a pay period in respect of the employment
if no cash remuneration is paid to the person by the person's
employer in respect of the pay period;
(a.1) any amount excluded as income under paragraph
6(1)(a) or (b) or subsection 6(6) or (16) of the
Income Tax Act;
. .
.
[10]
Insurable hours are determined under sections 10 and 94.1 of the
Employment Insurance Regulations, as follows:
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.
. .
.
94.1 Where, for the purposes of the Act and in respect of a
benefit period established on or after January 5, 1997, a
claimant presents evidence of a week or insurable employment that
occurred before January 1, 1997, that week of insurable
employment shall be considered to represent 35 hours of insurable
employment.
[11] When
all the circumstances of this appeal, including the testimony of
the appellant's executive director and Ms. Pomerleau, the
admissions and the documentary evidence, are considered in light
of the Regulations, the Court is satisfied that the
appellant has not discharged its burden of proving on the balance
of evidence that the Minister's decision is unfounded in fact
and in law. The amounts paid by the appellant to Ms. Pomerleau
were paid in respect of insurable employment during the period at
issue, even where those allowances were not paid in consideration
of the work performed. The cash amounts paid for her board and
lodging are not excluded from the calculation of insurable
earnings under paragraph 2(3)(a) of the Insurable
Earnings and Collection of Premiums Regulations. As for the
calculation of insurable hours, for which the Minister relied on
sections 10 and 94.1 of the Employment Insurance
Regulations, no contrary evidence was adduced by the
appellant.
[12]
Therefore, the appeal is dismissed and the Minister's
decision is confirmed.
Signed at
Ottawa, Canada, this 11th day of April 2001.
D.J.T.C.C.
Translation certified
true on this 31st day of October 2002.
Erich Klein,
Revisor
[OFFICIAL
ENGLISH TRANSLATION]
2000-2230(EI)
BETWEEN:
SUCO :
SOLIDARITÉ UNION COOPÉRATION,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent,
and
NICOLE
POMERLEAU,
Intervenor.
Appeal heard
on January 10, 2001, at Montreal, Quebec, by
the
Honourable Deputy Judge D. R. Watson
Appearances
Agent for
the
Appellant:
Gervais L'Heureux
Counsel for
the
Respondent:
Pascale O'Bomsawin
For the
Intervenor:
The Intervenor herself
JUDGMENT
The appeal is dismissed and the Minister's decision confirmed
in accordance with the attached Reasons for Judgment.
Signed at
Ottawa, Canada, this 11th day of April 2001.
D.J.T.C.C.
Translation certified
true on this 31st day of October 2002.
Erich Klein,
Revisor
[OFFICIAL
ENGLISH TRANSLATION]
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