Richardson v. M.N.R., docket 96-340-UI

Date: 19971113

Docket: 96-340-UI

BETWEEN:

KAREN RICHARDSON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Brulé, J.T.C.C.

[1] This case contains both a motion by the Appellant to allow the appeal and the appeal itself of the Appellant, apart from the motion, to reverse the determination of the Minister of National Revenue (the "Minister") which said that the Appellant was not employed in insurable employment during the period July 1 to November 19, 1994 within the meaning of the Unemployment Insurance Act (the "Act").

Motion

[2] The motion brought about by the Appellant's counsel under Rule 15 stems from the fact that no Reply to the Notice of Appeal was served upon the Appellant. Such was discovered during argument by counsel in a trial of this determination when counsel told the Court that no reply was received. One was offered by the Respondent's counsel on July 4th, but this was not within the time limit prescribed in the statute, hence the motion.

[3] The biggest problem with the motion is the misunderstanding of the law by counsel for the Appellant. Rule 15 was pleaded as the basis for the motion and no service upon the Appellant was made as required under Rule 41. This may be fine but Rule 41 is a part of the General Procedure Rules and this motion and appeal come under the Unemployment Insurance Act appeals. It is not necessary that the document served be proved by the affidavit of the person who served it. All that is required by the Act is that a copy of the Reply be mailed to the Appellant and such was done as witnessed by Exhibit R-1, a letter from Revenue Canada to the Appellant containing a Reply to the Notice of Appeal. This is the sole requirement of the Minister, i.e. to mail a copy of the Reply.

[4] Counsel for the Respondent, upon hearing of the problem at a previous hearing of this appeal, was prepared to grant an adjournment so that counsel for the Appellant would be in a position to argue the appeal on the basis of having received the Reply. This was to be the basis of the appeal on September 11, 1997, but instead counsel for the Appellant decided to bring the motion. He did not understand that under the Act no proof of service is required and albeit that such is perhaps difficult to comprehend such is the law. Counsel also stated that this was his first case in this area of law. The result is that the motion must be denied.

Appeal

[5] Evidence was given by the Appellant as to three places of work that she held during the period under review. Insofar as working for her father was concerned, no exact amount of the hours worked seemed to be regarded by the father as important. He paid his daughter, the Appellant, what he thought best. The remainder of his employees filed statements of the exact hours each worked. The Appellant owed her father money on a mortgage and the pay he normally would have made to her was deducted from the mortgage.

[6] A determination was made under subparagraph 3(2)(c)(ii) of the Act that the Appellant and her father were not dealing at arm's length. The Appellant herself, in her testimony, admitted that she was not treated as an ordinary employee by her father. The fact that she was entitled to a certain salary without furnishing a list of hours she worked for her father is proof enough to deny her claim to this appeal. The transcripts bore all this out with the result that the appeal, as well as the motion, is hereby dismissed.

"J.A. Brulé"

J.T.C.C.