Date: 20010717
Docket: 1999-4137-EI
BETWEEN:
MONDO-TECH INTERNATIONAL INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor
Judgment
Watson, D.J.T.C.C.
[1]
This appeal was heard at Montréal, Quebec, on April 19,
2001. The question to be decided is whether the appellant is
correct in contending that, during the period in issue, namely
from July 13, 1998, to January 12, 1999,
Carlos Osvaldo Perez Miqueiro, the worker, did not
hold insurable employment since his employment did not meet the
requirements of a contract of service and there was between the
appellant and the worker no employer-employee relationship within
the meaning of the Employment Insurance Act (the
"Act").
[2]
The Minister of National Revenue (the "Minister")
relied on the following assumptions of fact:
[TRANSLATION]
(a)
the appellant obtained grants from CIDA (Canadian International
Development Agency);
(b)
the grants program enabled interns to work outside Canada through
the "College and Institute International Youth Internship
Program";
(c)
CIDA paid a grant of $15,000 for the intern, of which $3,000 went
to the appellant and $12,000 to the intern;
(d)
the appellant had a client by the name of Métalec Inc.
(hereinafter "Métalec");
(e)
Métalec is a Quebec business that manufactures metal
doors;
(f)
Métalec was interested in selling its products in South
America;
(g)
the worker had completed training in architecture;
(h)
on July 13, 1998, the appellant, Métalec and the
worker signed an agreement for an international project
management internship in the Montevideo free trade zone in
Uruguay;
(i)
under the terms of the agreement, the appellant retained the
worker for the performance of the duties and obligations set out
in Annex 1, Description of duties, as regards the appellant,
and in Annex 2 as regards Métalec;
(j)
the agreement stipulated that the worker was to be hired for the
period from July 13, 1998, to January 12, 1999;
(k)
the worker's duties consisted first of all in learning and
knowing about the services and products of the appellant and
Métalec and, second, in Uruguay, conducting research and
development by contacting various businesses and visiting
different construction sites to promote the products;
(l)
the worker had a full-time work schedule of 40 hours a
week;
(m) the
worker received an allowance of $1,000 a month for the
three months spent in Canada;
(n)
the worker received an allowance of $2,500 a month for the
three months spent in Uruguay;
(o)
the worker was paid in Canada during the period in issue;
(p)
the appellant paid the worker's transportation, visa and
insurance expenses;
(q)
under the agreement, Métalec was the worker's sponsor
and undertook to provide the worker with training and office
supplies;
(r)
the worker drafted written reports to the appellant each month
and had frequent telephone contact with the appellant;
(s)
on May 25, 1999, Suzanne Roby, a representative of the
appellant, told the respondent that the worker had been
supervised in Uruguay by a collaborator of the
appellant's;
(t)
the worker used the appellant's premises when necessary;
(u)
the worker was required to notify the appellant of any absence of
more than seven consecutive days;
(v)
the appellant could have terminated the agreement at any time,
solely at its discretion;
(w)
during the period in issue, there was an employer-employee
relationship between the appellant and the worker.
[3]
At the hearing, the appellant admitted the allegations made in
subparagraphs (a) to (h), (j), (l) to (o), (q), (s), (u) and
(v) and denied the facts alleged in subparagraphs (i), (k),
(p), (r), (t) and (w) of paragraph 8 of the Reply to the
Notice of Appeal.
[4]
The onus of proof is on the appellant. It has to show on a
balance of evidence that the Minister's decision of August 6,
1999, is unfounded in fact and in law. Each case stands on its
own merits.
[5]
The only witness at the hearing was the appellant's
president, René Gélinas, who testified in an
open and honest manner and adduced evidence. His testimony was
wholly credible.
[6]
During the period in issue, the appellant was party to an
agreement involving both the worker and Métalec Inc.
("Métalec") under which the worker provided
services to Métalec in Canada and in Uruguay.
[7]
Métalec is a Quebec business that manufactures metal doors
and that, during the relevant period, wished to sell its products
in South America. As for the worker, he had completed
architectural training. For the purposes of the agreement, the
worker's internship was divided into two periods. During the
first period, in which he remained in Canada, the worker was
mainly to familiarize himself with Métalec's services
and products. During the second, the worker's duties
consisted in conducting research and development for
Métalec in Uruguay by contacting various businesses and
visiting different construction sites in order to promote
Métalec's products. The worker was remunerated through
the grant paid by the Canadian International Development Agency
("CIDA").
[8]
For the purposes of the agreement, the appellant obtained a
$15,000 grant from CIDA under a program called the "College
and Institute International Youth Internship Program". Of
that grant, $3,000 was paid to the appellant and $12,000 to the
worker. The worker thus received $1,000 a month for the three
months he worked in Canada and $2,500 a month for the three
months worked in Uruguay. The balance of the grant was used to
pay the worker's transportation, visa and insurance expenses,
which the appellant paid out of the $12,000 received from CIDA
for the worker. Any balance remaining after those expenses were
settled was paid to the worker. The appellant admitted at the
hearing that, in the specific case of the worker, the expenses
exceeded the grant paid by $22 as a result of long distance
telephone calls made by the worker but billed to the appellant.
The appellant absorbed the additional $22, considering it to be a
negligible amount. The worker performed his duties based on a
full-time schedule of 40 hours a week, but that schedule was
variable depending on Métalec's needs.
[9]
The appellant contended that it could not be required to pay
employment insurance premiums in respect of the worker since its
role was limited to twinning the worker with Métalec and
to making preparations for the trip and looking after related
administrative matters. In particular, the appellant argued that
there was not a sufficient relationship of subordination between
it and the worker for it to be considered an employer for the
purposes of subsection 5(1) of the Act.
[10] The
respondent, for his part, contended that the worker's
internship was insurable under paragraph 6(b) of the
Employment Insurance Regulations
("Regulations"), notwithstanding any notion of
subordination, as section 6 of the Regulations
includes in insurable employment employment which would not
otherwise be insurable under subsection 5(1) of the
Act alone.
[11] The
letter dated May 11, 1998, from CIDA to the president of
Mondo-Tech reads in part as follows:
[TRANSLATION]
We are pleased to advise you that a contribution of CAN
$150,000 has been approved for the aforementioned project as
part of CIDA's International Youth Internship Program.
The contribution is subject to the terms and conditions outlined
in the Agreement and in the annexes attached to this letter. We
would nevertheless like to say that, since it is acting as a
"broker", Mondo-Tech International Inc. is
responsible for providing proper oversight with respect to the
operational and financial obligations of its partner corporations
throughout the internship project.
If you agree with the terms and conditions outlined in the
Agreement, please sign both copies of the Agreement and return
them to the Youth Action Division for countersignature.
. . .
We invite CIDA's partner organizations to consult Industry
Canada's National Graduate Register (NGR) in the candidate
selection process. You may access the Internet site at the
following address: http://ngr.schoolnet.ca.
. . . There you will find the curricula vitae of all
young Canadian graduates wishing to take part in CIDA's
program. Additional information on the NGR is attached
hereto.
Once intern selection is complete, we ask that each intern
fill out the Youth Intern Database Form (attached hereto)
and return it to us by facsimile. . . . The information provided
on this form will allow us in the years ahead to keep track of
the intern's progress in finding suitable employment. We also
ask interns to complete the enclosed DFAIT registration form for
International Youth Internship Program participants, which is to
be sent to the Canadian overseas mission nearest the country in
which the internship is to take place. Lastly, please send us a
copy of the Agreement which you will have your interns sign, as
provided for in Article III, paragraph 7, of the
Agreement.
I am also taking this opportunity to send you a copy of our
Youth Action newsletters, which contain information that may be
of use to you in implementing your internship project.
[12] The
agreement dated May 12, 1998, between the Government of
Canada, represented by CIDA, and the appellant reads in part as
follows:
[TRANSLATION]
. . . WHEREAS CIDA conducts an International Youth
Internship Program in cooperation with the Department of Human
Resources Development (HRDC) as part of the government's
Youth Employment Strategy, pursuant to which contributions
may be made to organizations to carry out international
internship projects designed to help young Canadians make the
transition from school to the labour market;
WHEREAS the ORGANIZATION has submitted a proposal for funding
to carry out an international youth internship project
(hereinafter referred to as "the Project");
CIDA and the ORGANIZATION undertake and agree as follows:
ARTICLE I
RESPONSIBILITY FOR THE
PROJECT
1.
The Organization is responsible for the implementation and
management of the project described in Annex A and is
accountable for the sums advanced by CIDA for its
realization.
2.
The budget approved by CIDA and the Organization for the Project
is the subject of Annex B hereto.
3.
The Organization shall be responsible for entering into such
written agreements with other parties as are necessary to ensure
the implementation of the Project.
ARTICLE II
CONTRIBUTION
1.
The total value of the Project referred to in Article I is
estimated to be ONE HUNDRED AND FIFTY-TWO THOUSAND FIVE HUNDRED
Canadian dollars (CAN $152,500), including financial resources
and non-financial contributions. CIDA and the Organization shall
share in the cost of the Project.
2.
For the purpose of the Project, CIDA shall contribute funds in an
amount not to exceed ONE HUNDRED AND FIFTY THOUSAND Canadian
dollars (CAN $150,000) (the "Contribution"),
representing a portion of the costs of the Project. The
Organization shall contribute TWO THOUSAND FIVE HUNDRED Canadian
dollars (CAN $2,500) towards the costs of the Project, which
amount shall be calculated on the basis of financial and/or
non-financial contributions.
3.
CIDA's contribution to the Project is limited to a maximum of
$15,000 for each internship. The Organization may utilize up to
20% of CIDA's contribution, that is, a maximum of $3,000 per
internship, to pay part of its administration costs for the
Project.
4.
The Organization agrees to receive and utilize the contribution
for the sole purpose of paying the administrative expenses and
the cost of internships for the Project referred to in
Article I and described in Annex A.
5.
The Organization shall not use its cost-sharing contribution
under this program as a further cost-sharing component for new
Canadian government funds in another program of activities.
6.
The Organization agrees to ensure, by means of written agreements
with Canadian or overseas partners, or through its own
internships, that the Project and the interns subsidized through
CIDA's International Youth Internship Program have not
received approval or contributions from any other international
internship program under the Government of Canada's Youth
Employment Strategy.
. . .
7.
CIDA's contribution to the Project shall be placed at the
disposal of the Organization in the following manner:
. . .
(b) CIDA shall issue cheques payable in Canadian dollars to the
Organization. The Organization shall deposit the contribution
funds placed at the disposal of the Organization by CIDA for the
Project in an interest-bearing bank account.
(c) Any interest earned by the Organization on the Contribution
shall be utilized for purposes related to the Project as referred
to in Article I. Such income derived from investment of the
Contribution shall be used solely for internship costs and not
for administrative expenses. In the context of this agreement,
"interest" signifies the amount of interest earned by
the Organization on an advance.
(d) Upon presentation of the consolidated final report, the
Organization shall return to the Receiver General of Canada,
through CIDA, all funds contributed by CIDA under the terms of
the agreement, including accumulated interest, which have not
been spent or accounted for.
(e) CIDA's contribution to the Project does not in any way
commit CIDA to funding subsequent programs or projects.
ARTICLE III
RESPONSIBILITY OF THE ORGANIZATION FOR
THE YOUTH INTERNS
1.
The Organization shall be responsible and accountable for the
overall design, management and implementation of the Project and
shall make all reasonable efforts to ensure that participation in
the Project will lead to long-term career-related employment or
self-employment for the youth interns. This would include,
inter alia: (1) acting as "mentors" for the
interns over the course of the Project; (2) providing a
meaningful international work experience for the youth interns,
which is related to or enhances their field of study;
(3) providing appropriate pre-departure training and
preparation of interns, including foreign language training if
necessary; (4) providing the youth interns in Canada and
overseas with the personal and professional support required for
a successful internship; (5) undertaking return debriefing
and evaluation activities; and (6) actively assisting the
youth interns in their job search efforts.
2.
The Organization shall qualify as interns only young persons who
have not been accepted by or paid under any other international
internship program subsidized by the Youth Employment Strategy of
the Government of Canada.
3.
The Organization shall select youth interns who meet CIDA's
eligibility criteria. To be eligible to participate in an
internship, candidates shall:
(a) in general, be between 19 and 30 years of age;
(b) have Canadian citizenship or be eligible to work in
Canada;
(c) have recently graduated from a university or college, or have
completed their degree requirements before the start of the
internship;
(d) be unemployed or under-employed (working in a job that does
not enable them to make use of qualifications acquired through
their education);
(e) have basic knowledge of a foreign language or be prepared to
learn one, if necessary;
(f) agree to meet the objectives of the internship and to share a
portion of the costs.
. . .
5.
The Organization shall agree to rely on Industry Canada's
National Graduate Register (NGR) as its main source of potential
interns. If other sources are used for recruitment purposes, the
Organization shall ensure that the youth interns selected
register with the NGR before signing agreements with them.
. . .
7.
The Organization shall sign an agreement with each selected
intern and send a copy to CIDA, together with personal
information on the intern (Youth Intern Database) so that
CIDA can do a follow-up with interns after the internship.
The Organization shall also send CIDA a copy of the job
description relating to the overseas internship of each intern as
soon as it becomes available.
8.
The Organization shall obtain the youth interns' commitment
to provide CIDA with follow-up reporting on the results of
their employment search supported by the Organization and
information on their employment status for a period of
three years following the internship.
. . .
13.
All youth interns selected shall be informed that they have
obtained a grant and support from CIDA through the Youth
Employment Strategy of the Government of Canada.
ARTICLE IV
AUDIT AND EVALUATION
1.
CIDA reserves the right to proceed with an audit and evaluation
of the Organization and the Project where it deems necessary. The
Organization shall:
(a)
maintain accounts and financial records separate from the ledger
(including invoices, receipts and vouchers) concerning the
contribution funds and the amounts it has disbursed in accordance
with the provisions of this agreement;
(b)
maintain those accounts and records separate from the ledger for
the entire duration of the Project and for at least five (5)
years after the agreement terminates, and make them available to
CIDA if necessary.
2.
The Organization shall facilitate the visit of any authorized
representatives of CIDA to the Organization's offices, and to
those of the partner hosting the intern, for the purpose of
reviewing records related to the Project and to evaluate its
progress. The Organization shall also provide any authorized
representatives of CIDA complete access to the youth interns over
the course of the Project. The timing and terms of reference for
such visits shall normally be subject to mutual agreement.
ARTICLE V
REPORTS
. . .
3.
The quarterly reports shall be provided on July 15, 1998,
October 15, 1998 and January 15, 1999, whereas the
consolidated final report shall be provided on March 15,
1999. Payments shall not be made unless the reports approved
by CIDA have been received by the above dates.
. . .
ARTICLE VI
PUBLIC RECOGNITION OF CIDA'S
CONTRIBUTION
1.
The Organization shall ensure that the contributions of CIDA and
the Youth Employment Strategy of the Government of Canada
are recognized in a satisfactory manner in all its communications
in and outside Canada which mention the activities financed under
this agreement. These expressions of recognition may appear in
the Organization's publications, speeches, advertising, press
releases and other documents. The Organization shall be
responsible for the truth and accuracy of the public recognition
messages.
2.
The Organization agrees to allow its business name, its address,
its phone number or photos or video tapes of it to be used in the
communication activities organized by CIDA.
3.
Both parties are entitled to publish works resulting from the
implementation of internships. Such publications shall
acknowledge CIDA's contribution as a department taking part
in the Government of Canada's Youth Employment
Strategy.
ARTICLE VII
INDEMNIFICATION
1.
The Organization shall indemnify and save harmless Canada from
any demand, claim, loss, prejudice, cost and expense that the
Organization may make, suffer or incur as a result or by reason
of the Project.
2.
The Minister and the Organization declare that this agreement in
no way creates an association or joint undertaking or
principal-agent relationship between the Minister and the
Organization or between the Minister and any subcontractor or
consultant.
ARTICLE VIII
AMENDMENT
1.
This agreement may be modified by formal amendment at CIDA's
sole discretion.
. . .
ARTICLE IX
TERMINATION
Notwithstanding any provision of this agreement, CIDA may at any
time, by written notice, terminate this agreement in whole or in
part, and the Organization shall have no claim against Canada as
a result of termination, except for payment of expenses actually
incurred or undertakings under this agreement as of the date of
termination, less the sums already paid in this regard.
. . .
ARTICLE XIII
GENERAL PROVISIONS
. . .
2.
This agreement shall not be assigned by the Organization without
the prior consent of CIDA.
. . .
6.
The Organization shall ensure that travel costs related to
CIDA-funded programs (i.e. transportation, per diem,
accommodation, other expenses, etc.) do not exceed Treasury Board
travel directives.
. . .
8.
Without limiting any right of set-off or reserve expressly or
implicitly conferred on it by the law or any provision of this
agreement, CIDA may set off any amount it owes to the
Organization under this agreement or any other agreement.
. . .
[13] The
Agreement between Mondo-Tech, Métalec and the worker,
signed on July 13, 1998, reads in part as follows:
[TRANSLATION]
. . . WHEREAS MONDO-TECH has entered into an agreement
with the Canadian International Development Agency (hereinafter
"CIDA") to implement the College and
Institute International Youth Internship Program (hereinafter
the "Program"), the Program being part of CIDA's
"International Youth Internship Program" established in
cooperation with the Department of Human Resources Development
(HRDC) within the framework of the Youth Employment
Strategy implemented by the federal government and designed
to assist young Canadians in making the transition between school
and the labour market;
WHEREAS MONDO-TECH has agreed to supply the services of
Carlos Perez (hereinafter the "intern") for an
international project management internship in the free trade
zone of Montevideo, Uruguay;
AND WHEREAS MONDO-TECH will act as an adviser to the
intern for the duration of his internship;
. . .
ARTICLE II
2.0
MONDO-TECH'S OBLIGATIONS
2.1.
Mondo-Tech hereby retains an intern to carry out the duties and
obligations stated in Annex 1, entitled Job Description
(MONDO-TECH), and Annex 2, entitled Formal
Undertaking (MÉTALEC). These two annexes form an
integral part of this Agreement.
2.2. The
contribution in respect of this internship may not exceed twelve
thousand dollars (CAN $12,000), including all taxes (hereinafter
the "contribution"). The contribution shall be paid as
follows:
2.2.1. MONDO-TECH
shall pay the intern a monthly living allowance of one thousand
dollars (CAN $1,000) for the three months in Canada. Upon the
signing of the agreement, the intern shall receive an initial
payment corresponding to the first month of training in Canada.
The subsequent monthly payments of the allowance in Canada shall
be made at the beginning of the month by cheque.
2.2.2. MONDO-TECH
shall pay the intern a monthly living allowance of two thousand
five hundred dollars (CAN $2,500) for the three months abroad (in
Uruguay). The monthly payments shall be made at the beginning of
the month by direct deposit to the intern's bank account in
Canada.
2.2.3. MONDO-TECH
undertakes to pay transportation, visa (if necessary) and
insurance expenses for the three-month stay abroad.
2.3. As
far as possible, MONDO-TECH shall orient the intern so
that he may attend a two-day orientation session organized by
CIDA in cooperation with the Centre for Intercultural
Learning (CIL) and offered to the intern free of charge prior to
his departure.
2.4.
MONDO-TECH shall enrol the intern in the Blue Cross
supplementary insurance plan providing guaranteed accidental
death and dismemberment insurance and medical/hospital insurance
(including repatriation and emergency transportation). The cost
shall be paid by MONDO-TECH.
ARTICLE III
3.0
MÉTALEC'S OBLIGATIONS
3.1.
MÉTALEC undertakes to sponsor the intern and to
provide the supervision, training and office supplies required by
the intern for the performance of his duties. The entire computer
aspect shall be the responsibility of Carlos Perez.
3.2.
MÉTALEC shall pay the additional living expenses
(travel, restaurants, communication expenses, accommodation,
etc.) associated with special events not planned for in the
initial project if accepted by MÉTALEC.
3.3.
MÉTALEC undertakes to provide the intern with a
detailed plan enabling him to direct his efforts more effectively
during his stay abroad. The plan, which is set out in
Annex 2, shall be developed jointly by MONDO-TECH,
MÉTALEC and the intern.
ARTICLE IV
4.0
INTERN'S OBLIGATIONS
. . .
4.1.3.
participate fully in all activities relating to the Program, in
particular the internship and the orientation activities offered
prior to departure (CIL), the internship abroad, control and
evaluation activities, debriefing sessions, career counselling,
skills evaluation and job search assistance offered;
4.1.4.
provide MONDO-TECH, MÉTALEC and CIDA with
follow-up reports on job search results and information on
the intern's professional activities during a three-year
period following the internship;
. . .
4.1.6.
comply with the objectives and procedures established for the
Program and refrain from taking part in any activity which might
be deemed inconsistent with the Program's objectives or which
might discredit MONDO-TECH,
MÉTALEC,CIDA or CANADA;
4.1.7.
acknowledge and submit to the authority of MONDO-TECH on
every personal or professional matter that relates to the Program
or that might have an impact on the Program;
4.1.8.
inform MONDO-TECH at least one (1) week in advance of any
travel outside the host city or country or of any absence of
seven (7) consecutive days or more from the host community,
regardless of whether it is for a personal or a professional
activity;
. . .
4.1.11.
starting on the effective date of this agreement, keep accurate
records—including receipts, cheques paid and other
documents relating to supplies and to goods and services
obtained—on the internship and on expenses incurred,
maintain those records for five (5) years after termination of
the agreement and submit them to an accounting or operational
audit if CIDA so requests;
. . .
4.1.13.
avoid any act which might be prejudicial to good relations
between Canada and the host country and refrain from
participating directly or indirectly in any political activity in
the host country or in any professional or commercial activity
which might result in a conflict of interest;
. . .
4.1.15.
issue to MONDO-TECH at the beginning of each month a
bill for fees in the amounts specified in 2.2.1 and 2.2.2;
4.1.16.
whenever circumstances permit, the intern shall mention in his
publications, speeches, press releases and other similar
communications in Canada and abroad, CIDA's contribution and
the role of MONDO-TECH and of the sponsoring business as
project leader; he shall send a copy of the documents in question
to MONDO-TECH and shall be responsible for ensuring
the truth of any such public recognition messages;
4.1.17.
agrees to the use of his name, address, telephone number, photo
and/or video of him in communications issued or activities
organized by MONDO-TECH or CIDA.
4.2. It
is hereby agreed and understood that the intern whose
participation is financed under this Program has been accepted
and has received no contribution under any other international
internship program (CIDA, DFAIT, HRDC, etc.) financed
under the federal government's Youth Employment Strategy.
4.3. It
is hereby agreed and understood that the relationship between
MONDO-TECH and the intern is the same as that between a
supplier and an independent contractor and in no way constitutes
an employer-employee or master-servant relationship.
Consequently, the intern also undertakes to assume full
responsibility for making all required deductions and payments in
respect of employment insurance, workmen's compensation,
income tax and any other similar payment or deduction.
. . .
ARTICLE V
5.0.
TERMINATION
. . .
5.4. In
the event of the intern's withdrawal, transfer or departure
for any reason, the amounts that have been advanced to him shall
be refunded to MONDO-TECH.
. . .
ARTICLE VII
7.0.
GENERAL
7.1.
This Agreement may not be assigned or executed in whole or in
part by any person other than the intern.
7.2.
This Agreement obliges neither MONDO-TECH nor CIDA
to accept any responsibilities other than those specified in
Articles II, III, IV and V hereof and in no way covers the
payment of damages or the settlement of any claims whatever. More
particularly, MONDO-TECH's liability is limited to the
payment of a living allowance the purpose of which is stated in
Article II. MONDO-TECH shall be under no obligation
to pay damages or claims resulting from the following: war,
invasion, enemy acts, hostilities (regardless of whether war has
been declared), civil war, riot, rebellion, terrorism,
revolution, insurrection, military power, explosion, hurricane,
flood, earthquake, fire, wind or any other natural disaster.
. . .
[14] Six
invoices from the worker to Mondo-Tech were filed as
Exhibit A-4:
- an
undated invoice for $1,000 for the period from August 3 to
September 3, 1998;
- an
invoice dated September 3, 1998, for $2,500 for the period
from September 1 to October 1, 1998;
- an
undated invoice for $2,500 for the period from October 3 to
November 3, 1998, bearing a mailing date of October 14,
1998;
- an
undated invoice for $2,500 for the period from November 3 to
December 2, 1998, bearing a mailing date of November 9,
1998;
- an
undated invoice for $1,000 for the period from December 3,
1998, to January 2, 1999, and paid on November 30,
1998;
- an
undated invoice for $742 for the period from January 3 to
February 3, 1999, and paid on January 8, 1999;
- for a
total of $10,242.
[15] The
Government of Canada, through CIDA, has established a grants
program for young students, as explained in the agreement of
May 12, 1998. The sums which the appellant received from
CIDA were similar to sums held in trust: the appellant was to
provide a detailed account of the use of those sums, which were
subject to audit by CIDA. The grants were to be used to cover
living expenses for a period of approximately three months in
Canada ($1,000 a month) and three months in Uruguay ($2,500 a
month). The worker billed Mondo-Tech for an amount of $10,242.
The balance of the $15,000 grant was used by the appellant to
pay, in particular, the worker's transportation, visa and
health insurance expenses.
[16] I am
satisfied that Mondo-Tech acted as an intermediary between CIDA,
the worker and Métalec. Under the agreements, whenever
circumstances permitted, there was to be public recognition of
the payment of a Government of Canada grant by CIDA.
[17] Given all
the quite exceptional circumstances of the instant case and
having regard to the testimony of the president of the appellant,
the admissions and the documentary evidence, the Court is
satisfied that the appellant discharged its burden of showing on
a balance of probabilities that the Minister was incorrect in
determining in his decision dated August 6, 1999, that
[TRANSLATION]
. . . this employment was insurable for the aforementioned
period because it met the requirements of a contract of service.
There was therefore an employer-employee
relationship . . .
This decision was made under . . . and is based
on paragraph 5(1)(a) of the Employment Insurance
Act . . . and paragraph 6(b) of the
Employment Insurance Regulations.
The amounts received by the worker came from a grant from the
Government of Canada through its agency, CIDA, rather than being
remuneration by the appellant for his services during the period
in issue. As the worker received no remuneration, there were no
insurable earnings.
[18]
Consequently, the appeal is allowed and the Minister's
decision of August 6, 1999, is vacated.
Signed at Ottawa, Canada, this 17th day of July 2001.
"D. R. Watson"
D.J.T.C.C.
Translation certified true on this 30th day of April
2002.
[OFFICIAL ENGLISH TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4137(EI)
BETWEEN:
MONDO-TECH INTERNATIONAL INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on April 19, 2001, at
Montréal, Quebec, by
the Honourable Deputy Judge D. R. Watson
Appearances
Counsel for the
Appellant:
Gilles Brunet
Counsel for the
Respondent:
Mounes Ayadi
JUDGMENT
The
appeal is allowed and the Minister's decision is vacated in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 17th day of July 2001.
D.J.T.C.C.
Translation certified true
on this 30th day of April 2002.
Erich Klein, Revisor
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