Insurance Corp. of British Columbia v. M.N.R., docket 1999-4611-EI

Date: 20000321

Docket: 1999-4611-EI

BETWEEN:

THE INSURANCE CORPORATION OF BRITISH COLUMBIA,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

RYAN LAKE,

Intervenor.

Reasons for Order

Lamarre Proulx, J.T.C.C.

[1] This is a motion made by the Appellant for an order striking out the Notice of Intervention, on the basis that it is frivolous, vexatious or embarrassing and wholly irrelevant to the issues of the appeal.

[2] The Argument on the Motion appears in the first document of the Book of Documents as follows:

On the pleadings as filed, all parties have agreed that Mr. Lake was Ms. Harvey's actual employer. At trial the only issue will be whether ICBC was her deemed employer (see paragraph 4.1 of the Appeal and paragraph 9 of the Reply). Mr. Lake's status under the EIA as Ms. Harvey's actual employer will not change regardless of the outcome of ICBC's case. If ICBC wins its case, Mr. Lake will still be Ms. Harvey's actual employer. If ICBC loses its case, paragraph 10(1)(a) of the Insurable Earnings and Collection of Premiums Regulations specifically states that ICBC will be deemed to be her employer, in addition to the actual employer (see Tab 6). Thus, it is clear that, whether ICBC wins or loses, Mr. Lake will always retain his status as the actual employer.

In these circumstances, the Notice of Intervention is irrelevant to the sole issue to be decided at trial. Accordingly, it is "embarrassing" and should be struck out. An embarrassing pleading is one which is irrelevant and which cannot lead to any practical result. ...

[3] The assumptions of fact upon which the Respondent, the Minister of National Revenue (the "Minister"), relied in making his decision are described at paragraph 7 of the Reply to the Notice of Appeal (the "Reply") as follows:

a) Lake was involved in a motor vehicle accident on or about May 3, 1997;

b) Lake had motor vehicle insurance coverage with the Appellant;

c) Lake made a claim to the Appellant for approval to cover the cost of hiring an attendant to assist him during his period of recovery from the injuries he suffered during the motor vehicle accident;

d) the Appellant provided Lake with the approval to hire an attendant;

e) the Appellant set the pay rate of the attendant at $15.00 per hour for a maximum of 4 hours per day for personal care to Lake and at $8.25 per hour for child care of Lake's children;

f) Lake hired the Worker to perform the personal care and the child care duties at his residence, from 8 a.m. to 6 p.m., Monday through Friday, for the pay rate set by the Appellant;

g) Lake directed and supervised the Worker in the performance of her duties;

h) the Appellant provided the time sheets to be completed by the Worker and signed by Lake;

i) the Appellant paid the salary/wages to the Worker upon receipt of the signed time sheets;

j) the payment of the salary/wages to the Worker by the Appellant was not a reimbursement of an expense incurred by Lake;

k) the Appellant monitored the need and continued to pay for the personal care attendant for Lake during the Period;

l) the Appellant is the deemed employer of the Worker for purposes of employment insurance premiums as the Appellant paid the salary/wages directly to the Worker and did not reimburse Lake.

[4] The pertinent excerpts of the Minister's decision, regarding the Insurance Corporation of British Columbia ("ICBC"), dated August 27, 1999 are as follows:

It has been decided that Shannie Harvey was employed by Ryan Lake under a contract of service and thus was employed in insurable employment; as Shannie Harvey was paid by the Insurance Corporation of British Columbia, the Insurance Corporation of British Columbia was deemed to be the employer of the insured person in addition to the actual employer.

[5] A decision was also rendered regarding Mr. Ryan Lake on August 27, 1999:

It has been decided that Shannie Harvey was employed by you under a contract of service and thus was employed in insurable employment. Shannie Harvey was paid by the Insurance Corporation of British Columbia which was deemed to be the employer of the insured person in addition to the actual employer.

[6] A letter from Canada Customs and Revenue Agency ("CCRA") dated November 23, 1999 was sent to Mr. Lake informing him of the appeal filed by ICBC, and telling him the following: "... If you would like to participate in this appeal, you can do so by filing a Notice of Intervention by writing, within 45 days of the date of this letter, to the Registrar of the Tax Court of Canada."

Analysis

[7] Counsel for the Appellant submitted that the status of Mr. Lake as an employer is not disputed and therefore he has no ground for intervention. The only matter in dispute is whether the Appellant is a deemed employer under section 10 of the Insurable Earnings and Collection of Premiums Regulations (the "Regulations").

[8] Counsel for the Respondent chose to remain neutral between the Appellant and the Intervenor although at some point he stated that the presence of the Intervenor at least as a witness would be required.

[9] Section 10 of the Regulations above-mentioned reads as follows:

10(1) Where, in any case not coming within any other provision of these Regulations, an insured person works

(a) under the general control or direct supervision of, or is paid by, a person other than the insured person’s actual employer, or

(b) with the concurrence of a person other than the insured person’s actual employer, on premises or property with respect to which that other person has any rights or privileges under a licence, permit or agreement,

that other person shall, for the purposes of maintaining records, calculating the insurable earnings of the insured person and paying, deducting and remitting the premiums payable on those insurable earnings under the Act and these Regulations, be deemed to be the employer of the insured person in addition to the actual employer.

10(2) The amount of any employer’s premium paid by the person who is deemed to be the employer under subsection (1) is recoverable by that person from the actual employer.

10(3) Where a person who is deemed under these Regulations to be an employer of an insured person fails to pay, deduct or remit the premiums that an employer is required to pay, deduct or remit under the Act or these Regulations, the provisions of Parts IV and VI of the Act shall apply to the person as if the person were the actual employer.

[10] Section 9 of the Tax Court of Canada Rules (Employment Insurance), concerning intervention, reads as follows:

9(1) A person who wishes to intervene shall intervene in an appeal by filing in or mailing to the Registry in which the notice of appeal was filed, or to which it was mailed, a notice of intervention that may be in the form set out in Schedule 9.

9(2) The notice of intervention shall be filed or mailed within 45 days from the date that the notice of appeal was served on the intervenor under section 8.

9(3) An intervenor may state in the notice of intervention that the intervenor intends to rely on the reasons set out in the notice of appeal received by the intervenor or the reasons set out in the notice of intervention of another intervenor.

9(4) The Registrar shall serve the Minister and the appellant with a copy of any notice of intervention received by the Registrar.

9(5) The notice of intervention may be served personally, and personal service on the Deputy Minister of National Revenue is deemed to be personal service on the Minister, or by mail addressed to the Minister, and if served by mail, the date of service is the date it is mailed and, in the absence of evidence to the contrary, the date of mailing is that date appearing on the communication from the Registrar accompanying the notice of intervention.

[11] It can be seen from this provision that no leave for intervention needs to be claimed. As a matter of fact, there are often intervenors in the appeals procedure under the Employment Insurance Act (the "Act") and this Court has always accepted that system freely when the intervenor was an employer or an employee. I believe that it derives from the Act itself. I refer to paragraphs 93(1) and (93)(3) and (4) of the Act, where it can be seen that the Minister shall notify all persons who may be affected by an appeal or a decision. Normally, this would be the employer and the employee under the Act.

[12] Section 28 of the Tax Court of Canada Rules (General Procedure) concerns leave to intervene. It is not of application in matters under the Act. I refer to it to show that procedure in the application of an act may vary from one to the other. In matters under the Income Tax Act leave to intervene must be claimed and obtained. That section reads as follows:

28(1) Where it is claimed by a person who is not a party to a proceeding

(a) that such person has an interest in the subject matter of the proceeding,

(b) that such person may be adversely affected by a judgment in the proceeding, or

(c) that there exists between such person and any one or more parties to the proceeding a question of law or fact or mixed law and fact in common with one or more of the questions in issue in the proceeding,

such person may move for leave to intervene.

28(2) On the motion, the Court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, and the Court may,

(a) allow the person to intervene as a friend of the Court and without being a party to the proceeding, for the purpose of rendering assistance to the Court by way of evidence or argument, and

(b) give such direction for pleadings, discovery or costs as is just.

[13] I was not provided with any decision regarding the matter of intervention in appeals under the Act. Counsel for the Appellant referred the Court to two decisions concerning the striking out of statements of claims or part thereof in matters of the Income Tax Act.

[14] Although the letter sent to Mr. Lake by CCRA cannot be determinative, it is at least indicative that intervention is considered a normal and useful practice in the administration of the Act.

[15] In his quality of employer, Mr. Lake appears at first glance as being an interested party in having ICBC as a deemed employer. Counsel for the Appellant referred me to that part of subsection 10(2) of the Regulations (cited at paragraph 9 of these Reasons) that provide that the amounts paid by the deemed employer are recoverable from the actual employer. I shall think that this depends on the contractual relationship between the deemed employer and the employer. I therefore cannot find that subsection 10(2) is sufficient to remove the interest of Mr. Lake in participating in the judicial debate.

[16] I conclude that Mr. Lake has the right, in accordance with the Act, its intent and spirit, to intervene as a person who may be affected by the judgment. Therefore, the motion is dismissed.

Signed at Ottawa, Canada, this 21st day of March, 2000.

"Louise Lamarre Proulx"

J.T.C.C.