Date: 20010130
Docket: A-377-99
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
JERRY LANDRY
Plaintiff
- AND -
MINISTER OF NATIONAL REVENUE
Defendant
Hearing held at Québec, Quebec on Tuesday, January 30, 2001.
Judgement from the bench at Québec, Quebec on Tuesday, January 30, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
Date: 20010130
Docket: A-377-99
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
JERRY LANDRY
Plaintiff
- AND -
MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR JUDGMENT
(Delivered from the bench at Québec, Quebec
on Tuesday, January 30, 2001)
DESJARDINS J.A.
[1] We consider that this application for judicial review should be allowed. In our opinion, the Deputy Judge of the Tax Court of Canada (Landry v. Minister of National Revenue, [1999] T.C.J. No. 385) made two errors.
[2] The first was to accept the payer's plea of guilty to having defrauded Her Majesty the Queen in right of Canada (Department of Employment and Immigration) of the sum of $250,914. This point was irrelevant to the case at bar and seems to have had a decisive influence on it.
[3] The second was that, after citing Canada (A.G.) v. Jencan, [1998] 1 F.C. 187 (F.C.A.), he did not follow the stages in that case. He never asked himself whether there was a connection between the plaintiff's terms of employment and his non-arm's-length relationship* with the payer.
[4] If he had taken the right approach the judge would have found that in the case at bar the evidence showed that so far as working conditions were concerned the plaintiff was treated in the same way as the payer's other employees. The conditions were admittedly unusual, but we are dealing here with seasonal employment in remote areas which can easily fall outside the ordinary rules.
[5] What s. 3(2)(c) of the Unemployment Insurance Act (later the Employment Insurance Act) seeks to prevent is not the existence of unusual working conditions as such: it is the existence of working conditions which can only be explained by a non-arm's-length relationship between the claimant and the payer.
[6] We would therefore allow the application for judicial review, reverse the decision of the Deputy Judge of the Tax Court of Canada and return the matter to the said Court for re-hearing, on the basis that the plaintiff held insurable employment during the periods in question. The plaintiff will be entitled to his costs in this Court.
Québec, Quebec
January 30, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF APPEAL
Date: 20010130
Docket: A-377-99
Between:
JERRY LANDRY
Plaintiff
- AND -
THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR JUDGMENT
FEDERAL COURT APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: A-377-99
STYLE OF CAUSE: JERRY LANDRY
Plaintiff
AND:
MINISTER OF NATIONAL REVENUE
Defendant
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 30, 2001
REASONS FOR JUDGMENT
OF THE COURT BY: Desjardins J.A.
DATED: January 30, 2001
APPEARANCES:
Vicky Lapierre for the plaintiff
Bernard Fontaine for the defendant
SOLICITORS OF RECORD:
DESROSIERS ET ASS. for the plaintiff
Sept-Îles, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
* French reads "lieu de dépendance"? - TR.
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