LeBlanc v. M.N.R., docket 1999-1562-EI

Date: 20000918

Docket: 1999-1562-EI

BETWEEN:

RENÉ LEBLANC,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Somers, D.J.T.C.C.

[1] This appeal was heard at Miramichi, New Brunswick, on July 21, 2000.

[2] The appellant requested that the respondent make a ruling on the length of his insurable employment with Arseneault Slashing Ltd., the payor, in the periods from May 29 to November 10, 1995, and from June 3 to November 8, 1996, the periods indicated on the records of employment.

[3] The respondent informed the appellant that he had held insurable employment with the payor for 23 weeks in 1995 and 24 weeks in 1996 and, more specifically, from May 29 to November 10, 1995, and from June 3 to November 8, 1996.

[4] In reaching his decision, the Minister relied on the following facts set out in paragraph 4 of the Reply to the Notice of Appeal, which were either admitted or denied by the appellant:

(a) the Appellant worked as a woodcutter for the Payor; (admitted)

(b) the Payor's records indicate the Appellant's commencement of employment from the date the Appellant registered with him as having started work; (denied)

(c) the Records of Employment ("ROE") issued to the Appellant were based on the Appellant's registration date; (denied)

(d) the Appellant's ROEs reported the Appellant's work period as follows: (admitted)

1995: 14 weeks from July 17 to November 10;

1996: 17 weeks from July 8 to November 8;

(e) the Payor's records indicate wood scaled in the Appellant's name prior to the start date as reported on the ROE and in the Payor's payroll book as follows: (denied)

wood scaled date of scaling

1995 8.84 cords June 2

44.64 cords June 16

59.94 cords June 30

44.80 cords July 14

Total: 158.19 cords

1996 9.68 cords June 14

4.15 cords June 21

41.49 cords July 5

Total: 55.32 cords

(f) wood cut the previous year is removed no later than February of the year following and does not form part of the scaling mentioned in subparagraph (e) above; (denied)

(g) the Appellant started cutting at least one week prior to the first scaling done by the Payor; (denied)

(h) the Appellant's periods of employment with the Payor were as stated in the Minister's decision; (denied)

(i) there was a contract of service between the Appellant and the Payor from the first day worked. (denied)

[5] The burden of proof is on the appellant. He must show on a balance of evidence that the Minister’s decision was without foundation in fact and in law. Each case stands on its own merits.

[6] The appellant worked cutting wood for the payor during 1995 and 1996. The records of employment show that the appellant worked for the payor for 14 weeks in 1995, from July 17 to November 10 and for 17 weeks in 1996, from July 8 to November 8.

[7] The scaling reports provided by the payor indicate the dates and the number of cords of wood cut, as shown in subparagraph 4(e) of the Reply to the Notice of Appeal.

[8] On cross-examination, the appellant said that he cut wood for three weeks before July 17, 1995, and for three weeks before July 8, 1996, but offered no specifics to rebut the Minister of National Revenue's allegations of fact.

[9] Confronted with a cheque issued in his name, dated June 29, 1995, in the amount of $1,804.23, he stated that that the wood had been cut the preceding year. He said that the cheque might have been for wood that he had sold to the payor.

[10] With respect to the cheque for $700 made out to him and dated June 6, 1996, and another cheque, for $1,000, dated July 4, 1996, he said that he had in the past borrowed money from the payor before cutting wood. Here again, the appellant provided no specifics in support of his explanations for the issuance of these cheques.

[11] Fernande Vautour, the company's secretary, keeps the company’s books. She prepares the records of employment and the wood scaling reports. She stated that the dates appearing on the records of employment, with respect to the appellant, are the dates that he registered. She admitted that the appellant probably cut wood before the dates appearing on the records of employment, namely, July 17, 1995, and July 8, 1996. She stated that the woodcutters start cutting wood in June and continue until October.

[12] The scaling reports produced in evidence indicate that the appellant cut wood before June 2, 1995, and June 14, 1996.

[13] The Revenue Canada appeals officer determined that the appellant cut wood before the dates mentioned, because the scaling is done every two weeks. According to the information obtained, the wood cut the preceding year is removed in January and February of each year.

[14] The burden of proof was on the appellant. He provided no details regarding the dates on which he cut wood or when he began working. His answers were only guesses. The Minister, however, relied on documents produced in evidence, that is, he relied on the dates on the scaling reports and relied as well on the cheques issued to the appellant on June 29, 1995, and June 6, 1996. The company's secretary stated that the employees start cutting wood every year in June.

[15] On the evidence, which was not rebutted by the appellant, the Minister correctly determined that the appellant held insurable employment within the meaning of paragraph 3(1)(a) of the Unemployment Insurance Act and paragraph 5(1)(a) of the Employment Insurance Act from May 29 to November 10, 1995, and from June 3 to November 8, 1996.

[16] The appeal is dismissed and the Minister's decision is confirmed.

Signed at Ottawa, Canada, this 18th day of September 2000.

“ J.F. Somers ”

D.J.T.C.C.