Date: 19990226
Docket: A-195-98
Coram: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
RÉAL POLICAR
Applicant
AND
MINISTER OF NATIONAL REVENUE
Respondent
AND
F-MATIC OF AMERICA
Intervener
Hearing held at Montréal, Quebec, on Monday, February 22, 1999.
Judgment delivered at Montréal, Quebec, on Monday, February 22, 1999.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
Date: 19990226
Docket: A-195-98
Coram: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
RÉAL POLICAR
Applicant
AND
MINISTER OF NATIONAL REVENUE
Respondent
AND
F-MATIC OF AMERICA
Intervener
REASONS FOR JUDGMENT
DESJARDINS J.A.
1 We are of the view that the judge of the Tax Court of Canada erred in his interpretation of subparagraph 14(f)(I) of the Unemployment Insurance Regulations,[1]and particularly the reference to Article IV(a)(2)(ii) of the Agreement between Canada and the United States respecting unemployment insurance in the amended version of June 21, 1985 (the Agreement).[2]
Article IV(a)(2)(ii) of the Agreement reads as follows:
ARTICLE IV
(a) An individual's entire services for an employer in insurable employment as defined in the unemployment insurance law of a jurisdiction will be insured under the unemployment insurance law of such jurisdiction in respect of services performed by him within, or both within and without such jurisdiction if-
. . .
(2) his services are not localized in any jurisdiction, but some of his services are performed in such jurisdiction, and
. . .
(ii) his base operations or the place from which his services are directed or controlled is not in any jurisdiction in which some of his services are performed, but his residence is in such jurisdiction.
(emphasis added)
ARTICLE IV
(a) L'ensemble des services que rend à un patron toute personne physique occupant un emploi assurable aux termes de la loi d'assurance d'une juridiction sera assuré suivant la loi d'assurance-chômage de cette juridiction, que lesdits services soient rendus en deçà ou au delà de ladite juridiction, si-
. . .
(2) Lesdits services ne sont pas localisés dans aucune juridiction et que quelques-uns d'entre eux sont rendus dans ladite juridiction, et si
. . .
(ii) Le centre d'activité de la personne rendant les services ou le lieu d'où lesdits services sont dirigés ou contrôlés ne se trouvent localisés dans aucune juridiction où l'un quelconque des services sont rendus, et que la résidence de ladite personne se trouve dans ladite juridiction.
(Je souligne)
The word " jurisdiction" included in Article IV is defined as follows in Article I(a)(iv) of the Agreement:
ARTICLE I
(a) In this agreement, unless the context otherwise requires,
. . .
(iv) "jurisdiction" means any State or Canada.
ARTICLE PREMIER
(a) En cet accord, à moins que le contexte s'y refuse,
. . .
(iv) "juridiction" vise tout État ou bien le Canada.
2 The payer is an American company with its corporate headquarters and offices in the State of Utah in the United States. The applicant, a resident of Quebec, was hired as a sales representative under a contract of service which authorized him to cover Ontario, Quebec, the Maritimes and the American Upper North East. The trial judge noted that the appellant sent his orders to Utah where they were filled.
3 Article IV of the Agreement seeks to establish where an employee's services for an employer are performed. As the trial judge noted, it is clear that the applicant's services were performed in the territory covered by his contract, including Quebec, and not in Utah.
4 Under Article IV(a)(2)(ii) of the Agreement, although the place from which the applicant's services were directed or controlled was not localized in Quebec but in Utah, the applicant's residence was in the jurisdiction where some of the services were performed, namely in Quebec.
5 Accordingly, the applicant's entire services in Canada and the American Upper North East were insured under the Unemployment Insurance Act in force in Canada.
6 The application for judicial review will be allowed, the decision by the Tax Court of Canada will be set aside and the matter referred back to it for a determination on the basis that the applicant's employment is insurable.
7 The whole with costs against the respondent.
Alice Desjardins
J.A.
Certified true translation
M. Iveson
Federal Court of Appeal
FEDERAL COURT OF CANADA
Date: 19990226
Docket: A-195-98
Between:
RÉAL POLICAR
Applicant
AND
MINISTER OF NATIONAL REVENUE
Respondent
AND
F-MATIC OF AMERICA
Intervener
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-195-98
STYLE OF CAUSE: RÉAL POLICAR
Applicant
AND
MINISTER OF NATIONAL REVENUE
Respondent
AND
F-MATIC OF AMERICA
Intervener
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 22, 1999
REASONS FOR DECISION OF THE COURT (THE HONOURABLE MADAME JUSTICE DESJARDINS, THE HONOURABLE MR. JUSTICE LÉTOURNEAU AND THE HONOURABLE MR. JUSTICE NOËL)
DELIVERED FROM THE BENCH BY: Desjardins J.A.
DATED: February 22, 1999
APPEARANCES: Georges P. Hébert for the applicant
Sophie-Lyne Lefebvre
Alain Gareau for the respondent
Pierre Zeppettini for the intervener
SOLICITORS OF RECORD:
DESCOTEAUX, HÉBERT & MARQUIS
Saint-Laurent, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec for the respondent
Moghrabi & Moghrabi
Montréal, Quebec for the intervener
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