A-246-96
QUÉBEC, QUEBEC, THE 28th DAY OF APRIL, 1997
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: JEANNOT LANG,
Plaintiff
- AND -
THE MINISTER OF NATIONAL REVENUE,
Defendant
J U D G M E N T
The application is allowed, the decision of the Tax Court is set aside and the matter is referred back to the said court for a redetermination.
Certified true translation
Christiane Delon
A-246-96
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: JEANNOT LANG,
Plaintiff
- AND -
THE MINISTER OF NATIONAL REVENUE,
Defendant
Hearing held in Québec, Quebec, Monday, April 28, 1997.
Judgment pronounced at the hearing, April 28, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
A-246-96
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: JEANNOT LANG,
Plaintiff
- AND -
THE MINISTER OF NATIONAL REVENUE,
Defendant
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Québec
Monday, April 28, 1997.)
DÉCARY J.A.
We are of the opinion that this application for judicial review should be allowed.
The Minister of National Revenue ("the Minister") decided that the applicant"s job was excepted from insurable employment because he was not dealing with the payer at arm"s length and because there was no employer-employee relationship between them.
The deputy judge of the Tax Court of Canada upheld the Minister"s decision. He was of the opinion, he said, that there was indeed a contract of employment between the applicant and the payer, but that this contract was excepted from insurable employment because the sole objective of the parties was to enable the applicant to qualify for unemployment insurance benefits, and that accordingly "there was never a contract of service between the payer and the appellant, except for convenience." In view of this finding, the judge said, it was unnecessary for him to decide the issue relating to the non-arm"s length relationship.
This reasoning is wrong on its face and reflects a misreading of this Court"s decision in Canada (Attorney General) v. Rousselle et al. (1991), 124 N.R. 339. What Hugessen J.A. held, in that judgment, was not that "convenience" employment is by its very nature excepted from insurable employments, but that such a contract should be subjected to particular scrutiny to ensure that the claimant is indeed insurable within the meaning of the Unemployment Insurance Act .
In the case at bar, the judge concluded that all the requirements of a contract of employment had been fulfilled. He therefore could not find that the contract did not exist and should have proceeded to the second stage and examined the effect of the non-arm"s length relationship in light of the provisions of paragraph 3(2)(c ) of the Act.
The application for judicial review will be allowed, the decision of the deputy judge of the Tax Court of Canada will be set aside and the matter will be referred back to that Court for a redetermination.
Certified true translation
Christiane Delon
Federal Court of Appeal
Court File No. A-246-96
BETWEEN:
JEANNOT LANG,
Plaintiff
- and -
THE MINISTER OF NATIONAL REVENUE,
Defendant
REASONS FOR JUDGMENT OF THE COURT
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| THE MINISTER OF NATIONAL REVENUE. |
| OF THE COURT BY:Hugessen J.A. |
| Jérôme CarrierFOR THE PLAINTIFF |
| Paul PlourdeFOR THE DEFENDANT |
| ROCHON, BELZILE, CARRIER, AUGER ET ASS. |
| G1R 2W8 FOR THE PLAINTIFF |
FEDERAL DEPARTMENT OF JUSTICE
222 Queen St.
Room 1118
Ottawa, Ontario
K1A 0H8 FOR THE DEFENDANT
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