Bhérer v. M.N.R., docket 98-110-UI

Date: 19990528

Docket: 98-110-UI

BETWEEN:

LAURAINE BHÉRER,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for judgment

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

[1] This appeal was heard at Québec, Quebec, on February 18, 1999, to determine whether the appellant held insurable employment within the meaning of the Employment Insurance Act (“the Act”) from August 18, 1995, to May 9, 1996, when she was employed by the Société des Casinos du Québec Inc. (the payer).

[2] By letter dated January 28, 1998, the respondent informed the appellant that the above-mentioned employment was not insurable because it did not meet the requirements for a contract of service and there was no employer-employee relationship between the payer and her.

Statement of the facts

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

[TRANSLATION]

(a) the payer operated the Charlevoix casino; (admitted)

(b) the appellant was employed at the casino as a cashier; (admitted)

(c) the appellant was dismissed by the payer in August 1995; (admitted)

(d) the appellant’s last day of work for the payer was July 24, 1995; (admitted)

(e) the appellant appealed her dismissal to the Commission des normes du travail; (admitted)

(f) on August 5, 1996, labour commissioner Louis Garant rendered a decision allowing the appellant’s appeal; (admitted)

(g) the payer appealed Louis Garant’s decision and the appellant was not reinstated in her position; (admitted)

(h) on October 7, 1997 [sic], the appellant and the payer signed an acquittance and transaction; (admitted)

(i) under that transaction, the appellant waived the effects of the labour commissioner’s decision, resigned and waived any claim to employment with the payer; (admitted)

(j) under the transaction, the payer paid the appellant $18,000 as compensation for lost wages from August 10, 1995, to May 9, 1996; (admitted)

(k) the $18,000 is compensation and not remuneration; (denied)

(l) the appellant has not provided any services to the payer since July 24, 1995. (admitted)

[4] The appellant admitted all the facts alleged in the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal except those she denied or said she had no knowledge of, as indicated in parentheses at the end of each subparagraph.

Written evidence

[5] The appellant worked as a cashier for the payer from 1994 to July 1995. In August 1995, she was dismissed by the payer because she had not reported for work since July 24. The appellant appealed her dismissal to the Commission des normes du travail and a decision was rendered allowing her appeal on August 5, 1996 (Exhibit A-1).

[6] On October 7, 1997, the appellant and the payer signed an acquittance and transaction stating the following:

[TRANSLATION]

THE PARTIES AGREE AS FOLLOWS:

1. The preamble forms an integral part hereof;

2. Lorraine [sic]Bhérer and the Société give each other a general, full and final acquittance in respect of any application, proceeding, action, complaint, grievance or claim of any kind whatsoever arising from or related to the employment of Lorraine [sic] Bhérer with the Société, specifically at the Charlevoix casino, or arising from any other cause of action or issue that exists or may exist between Lorraine [sic]Bhérer and the Société up to the date hereof;

3. Lorraine [sic]Bhérer and the Société expressly waive any action, grievance, complaint, proceeding or claim in respect of the foregoing that either of them might bring or put forward at the present time or in the future. In addition, Lorraine [sic] Bhérer withdraws the complaint she filed against the Société with the Commission des normes du travail under section 122.2 et seq. of the Act respecting labour standards (R.S.Q., c. N-1.1) on August 21, 1995;

4. For the purpose of settling their dispute, the Société agrees to pay Lorraine [sic] Bhérer $18,000 as compensation for lost wages from August 10, 1995, to May 9, 1996, which amount shall be subject to the deductions and contributions payable under tax legislation and the other applicable legislation; the said amount shall be payable on the date that this acquittance and transaction is signed, without any admission of liability by the Société or its directors, officers, executives or mandataries;

5. In consideration of that payment, Lorraine [sic] Bhérer waives, for the purposes hereof, the effects of the decision rendered by labour commissioner Louis Garant on August 5, 1996, with respect to complaint No. CQ9509S004, file No. E27074, and resigns and waives any claim to employment with the Société;

6. The Société shall discontinue its appeal filed with the Labour Court by way of a declaration of appeal dated August 21, 1996, and numbered 200-28-000133-964. The Société undertakes to file such a discontinuance with the Labour Court as soon as this acquittance and transaction is signed;

7. This acquittance shall apply to Lorraine [sic] Bhérer’s successors, heirs and assigns and to the Société’s directors, officers, executives and mandataries both at the corporate level and at the Charlevoix casino;

8. Colette Ratté is duly authorized to sign this acquittance and transaction on behalf of the Société;

9. The Société and Lorraine [sic] Bhérer undertake not to disclose the content of this acquittance and transaction and to keep it confidential for all legal purposes;

10. This acquittance and transaction shall also constitute a transaction within the meaning of articles 2631 to 2637 of the new Civil Code.

Review of the facts in relation to the law

[7] Considering that the Société agreed to pay the appellant $18,000 as compensation for lost wages for the period from August 10, 1995, to May 9, 1996, in order to settle their dispute, it must be asked what the true nature of that payment was given the fact that the appellant stopped working on July 24, 1995.

[8] Subsection 36(5) of the Employment Insurance Regulations states the following:

Earnings that are payable to a claimant under a contract of employment without the performance of services or payable by an employer to a claimant in consideration of the claimant returning to or beginning work shall be allocated to the period for which they are payable.

[9] Under the acquittance and transaction, the $18,000 was payable on October 7, 1996, that is, outside the time set by the Regulations.

[10] Accordingly, that amount is not wages paid in exchange for services rendered but rather compensation paid to make up for a loss resulting from harm suffered as a consequence of a breach of contract.

[11] The appeal is therefore dismissed and the Minister of National Revenue’s decision confirmed.

Signed at Ottawa, Canada, this 28th day of May 1999.

“G. Charron”

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Traduction certifiée conforme ce 14^e jour de mars 2000.

Erich Klein, réviseur