Amer v. M.N.R., docket 97-1794-UI

Date: 19990416

Docket: 97-1794-UI

BETWEEN:

HASSAN AMER,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

LE COFFRET CENTRE D'ORIENTATION ET DE FORMATION,

Intervener.

Reasons for judgment

Charron, D.J.T.C.C.

[1] The object of this appeal, heard at Montréal, Quebec, on January 19, 1999, was to determine whether the appellant held insurable employment within the meaning of the Unemployment Insurance Act (the "Act") from October 2 to December 19, 1995, when he worked for Le Coffret Centre D'Orientation et de Formation (the "payer").

[2] By letter dated July 17, 1997, the respondent informed the appellant that his employment was not insurable because it was not governed by a contract of service between the payer and him.

Statement of Facts

[3] The facts on which the respondent relied in making his decision are stated in paragraph 5 of the Reply to the Notice of Appeal, as follows:

[TRANSLATION]

(a) the payer, a non-profit organization, has three mandates:

- help newly-arrived persons settle in Canada,

- regionalize immigration, and

- work toward the harmonization of ethnic relations;

(no knowledge)

(b) the payer's income came from government subsidies; (no knowledge)

(c) the appellant, a citizen of Burundi, arrived in Canada on July 8, 1994; (admitted)

(d) Citizenship and Immigration Canada granted him refugee status; (admitted)

(e) work permits were issued to the appellant for the following periods:

- from September 29, 1994 to June 24, 1995,

- from December 20, 1995 to December 20, 1996 and

- from October 24, 1997 to October 23, 1998; (admitted)

(f) the payer hired him for the period from October 2, 1995 to March 29, 1996; (admitted)

(g) from December 20, 1995 to March 29, 1996, he worked pursuant to a contract of service; (admitted)

(h) from October 2, 1995 to December 19, 1995, the appellant did not have a valid work permit. (no knowledge)

[4] The appellant admitted that all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal were true, except those he denied or said he knew nothing about, as indicated in parentheses at the end of each subparagraph.

Hassan Amer's Testimony

[5] The appellant, a citizen of Burundi, arrived in Canada on July 8, 1994, at which time the Department of Citizenship and Immigration granted him refugee status. The payer employed the appellant from October 2, 1995 to March 29, 1996, as witnessed by the appellant's record of employment. The appellant was aware that his work permit had expired on June 24, 1995, and it was not until December 20 that the permit was renewed. He therefore had no valid work permit from October 2 to December 19, 1995.

[6] Despite an order from the Minister to bring with him all the work permits he had obtained from September 24, 1994 to December 23, 1998, the appellant failed to comply. It was because he did not prove that he held a work permit from October 2 to December 19, 1995 that the respondent ruled that the appellant did not work pursuant to a valid contract and that his employment was therefore not insurable.

Analysis of the facts in relation to the Act

Statement 1: The appellant did not have a valid and subsisting work permit between October 2 and December 19, 1995.

[7] The appellant, a citizen of Burundi, arrived in Canada in July 1994 (R.N.A., subparagraph 5(c)). The Canadian Minister of Citizenship and Immigration issued work permits to the appellant inter alia for the following periods:

from September 29, 1994 to June 24, 1995;

from December 20, 1995 to December 20, 1996 (R.N.A., subparagraph 5(e)).

[8] The appellant did not hold a valid and subsisting work permit from June 25 to December 19, 1995 (R.N.A., subparagraph 5(h)).

Statement 2: The appellant held employment with Le Coffret Centre d'Orientation et de Formation (hereinafter the "payer") during the period in issue.

[9] The appellant worked at Le Coffret Centre d'Orientation et de Formation from October 2, 1995 to March 29, 1996 (R.N.A., subparagraph 5(h) and record of employment).

Statement 3: The appellant, as a person who was not a Canadian citizen or a permanent resident, was required to have a valid and subsisting work permit in order to engage and continue in employment in Canada.

[10] Section 18 of the Immigration Regulations, 1978 reads as follows:

18. (1) Subject to subsections 19(1) to (2.2), no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.

18. (2) No person who is in possession of a valid and subsisting employment authorization shall continue in employment in Canada unless he complies with each of the terms and conditions specified in the authorization.

Statement 4: The appellant knew or ought to have known that he needed a valid and subsisting work permit in order to engage and continue in employment in Canada.

[11] The question as to whether the appellant knew or ought to have known that he needed a valid and subsisting work permit in order to engage and continue in employment in Canada is important in common law in determining whether a contract of employment prohibited by law is null in the context of an unemployment insurance dispute. According to the common law theory of illegality, a person who is not a Canadian citizen or permanent resident who is legally staying in Canada and who in good faith holds employment in Canada must not be deprived of the right to obtain unemployment insurance benefits as a result of the illegality of that employment. In this context, the Court will give effect to the contract of employment and the employment will therefore be ruled insurable for the purposes of the Unemployment Insurance Act.

[12] This principle was laid down by the Federal Court of Appeal in Still v. M.N.R., [1998] 1 F.C. 549 (F.C.A.), in November 1997. Ms. Still had immigrated to Canada (Ontario) and requested permanent resident status. On September 22, 1991, officers of the Canadian Department of Citizenship and Immigration issued her the following document:

This will verify that, for the person(s) named hereunder, a recommendation has been sent to the Governor-in-Council for Canada for an exemption pursuant to subsection 114(2) of the Immigration Act.

KATHLEEN STILL

Pending Governor-in-Council approval and provided all other requirements are met, the above-named will be granted permanent resident status in Canada. The above-named is/are hereby eligible to apply for employment and/or student authorizations, as applicable.

[13] Ms. Still understood this document to give her the right, as of that date, to work in Canada without any further action on her part.

[14] In the instant case, the appellant knew or ought to have known that a valid and subsisting work permit was necessary in order for him to engage and continue in employment in Canada. As in Polat v. M.N.R. (December 4, 1997, A-31-97 (F.C.A.) and 96-402(UI) (T.C.C.), March 17, 1998), the appellant had previously obtained a work permit (for the period from September 29, 1994 to June 24, 1995). Obtaining the first work permit is significant because it indicates that the appellant knew that once it expired he would have to obtain another in order to engage or continue in employment.

[15] In addition, the respondent submits that the question of good or bad faith is immaterial in Quebec civil law in determining whether a contract of employment prohibited by law is null in the context of an unemployment insurance dispute. In Still, supra, the Federal Court of Appeal noted the following: "[W]e cannot lose sight of the fact that cases originating from Quebec are to be decided under the illegality provisions found within the Civil Code of Quebec."

[16] The relevant Civil Code provisions are as follows:

1412. The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it emerges from all the rights and obligations created by the contract.

1413. A contract whose object is prohibited by law or contrary to public order is null.

1417. A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest.

1418. The absolute nullity of a contract may be invoked by any person having a present and actual interest in doing so; it is invoked by the court of its own motion.

A contract that is absolutely null may not be confirmed.

1422. A contract that is null is deemed never to have existed.

In such a case, each party is bound to restore to the other the prestations he has received.

[17] One the of the essential conditions of a contract's validity is that its object not be prohibited by law or contrary to the public order. The Civil Code acknowledges that a contract whose object is prohibited by law or contrary to public order is null and without effect. It expressly provides that a contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest, and adds that a contract that is absolutely null may not be confirmed.

[18] In his book entitled Les Obligations, Jean-Louis Baudouin J. states that [TRANSLATION] "the illegality of the object is sanctioned by absolute nullity since public order is at stake". In Saravia c. 101482 Canada Inc., [1987] R.J.Q. 2658 (P.C.), the Provincial Court held: "[T]he Immigration Act, 1976 is a statute of public order, and a contract, knowingly or not, made in breach of one or many of its sections will be void and null."

[19] The Immigration Act is a statute of public order whose object is to protect the general interest. Its aim is to regulate who may enter and stay in Canada. One of the objectives stated in section 3 of the Immigration Act is "to maintain and protect the health, safety and good order of Canadian society".

[20] Thus, under the civil law in effect in Quebec, a contract of employment entered into, whether in good or in bad faith, by a person who is not a Canadian citizen or a permanent resident and who does not hold a valid work permit is null and without effect. (Saad v. M.N.R., July 9, 1997, Ottawa, 96-1719(UI) (T.C.C.) and Kante v. M.N.R., May 23, 1997, Ottawa, 94-1056 and 95-1153(UI) (T.C.C.)).

Statement 5: The contract between the appellant and the payer for the period in issue is null.

[21] Whether on the basis of the common law principle stated in Still, supra, and its application in Polat, supra, or under the Civil Code of Québec, the contract of employment between the appellant and the payer for the period in issue is null.

[22] The burden was on the appellant to show that he held a valid work permit and he did not do so.

[23] The appeal is accordingly dismissed and the respondent's decision affirmed.

Signed at Ottawa, Canada, this 16th day of April 1999.

"G. Charron"

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 2nd day of February 2000.

Erich Klein, Revisor