Bélanger v. Canada (Minister of National Revenue), 2003 FCA 455

Date: 20031126

Docket: A-516-02

Citation: 2003 FCA 455

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

NADON J.A.

BETWEEN:

                                                       LOUIS-PAUL BÉLANGER

                                                                                                                                            Applicant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                  Hearing held at Québec, Quebec, on November 26, 2003.

Judgment delivered from the bench at Québec, Quebec, on November 26, 2003.

REASONS FOR JUDGMENT:                                                                           LÉTOURNEAU J.A.

Date: 20031126

Docket: A-516-02

Citation: 2003 FCA 455

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

NADON J.A.

BETWEEN:

                                                       LOUIS-PAUL BÉLANGER

                                                                                                                                            Applicant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

                                        (Delivered from the bench at Québec, Quebec

                                                           on November 26, 2003)

LÉTOURNEAU J.A.

[1]                In our view, this application for judicial review of a decision by a deputy judge of the Tax Court of Canada must be allowed. In this decision, the judge determined that for the period in dispute, the applicant's employment was not insurable employment. We made this finding for the following reason.

[2]                The judge did not assume the role assigned to him by the Employment Insurance Act and redefined in the case law by our Court in Pérusse v. Canada (Minister of National Revenue - M.N.R.), [2002] 261 N.R. 150, application for leave to appeal to the Supreme Court of Canada denied, and Légaré v. Canada (Minister of National Revenue - M.N.R.), [1999] 246 N.R. 176. These judgments were later followed in Valente v. Canada (Minister of National Revenue - M.N.R.), [2003] FCA 132 and Massignani v. Canada (Minister of National Revenue - M.N.R.), [2003] FCA 172.

[3]                As this Court stated in Massignani, supra, at paragraph 2, "This role does not allow the judge to substitute his discretion for that of the Minister, but it does encompass the duty to 'verify whether the facts inferred or relied on by the Minister are real and were correctly assessed having regard to the context in which they occurred, and after doing so, . . . decide whether the conclusion with which the Minister was "satisfied" still seems reasonable'".

[4]                At paragraph 20 of his decision, the judge recognized that he had the right to examine the facts that were before the Minister in order to "decide if these facts are proven to be correct". But he did not carry out this assessment. He merely stated that "[i]n view of all the circumstances, I am convinced that the appellant did not succeed in establishing, on a preponderance of the evidence, that the Minister acted in a wilful or arbitrary manner". Clearly, he relied on the case law before Pérusse and Légaré, earlier cases which he in fact cited: see paragraph 17 of the decision.

[5]                The application for judicial review will be allowed with costs, the decision of the deputy judge set aside and the matter will be referred to the Chief Judge of the Tax Court of Canada or to a judge designated by him, for rehearing.

                                                                                                                               "Gilles Létourneau"     

J.A.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                  FEDERAL COURT OF APPEAL

                                                      SOLICITORS OF RECORD

DOCKET:                                                A-516-02

STYLE OF CAUSE:                                LOUIS-PAUL BÉLANGER v. MINISTER OF                  NATIONAL REVENUE

PLACE OF HEARING:                          QUÉBEC, QUEBEC

DATE OF HEARING:                            November 26, 2003

CORAM:                                                 DÉCARY J.A.

LÉTOURNEAU J.A.

                                                                 NADON J.A.

REASONS FOR JUDGMENT              LÉTOURNEAU J.A.

OF THE COURT:                                  

DATE OF REASONS:                            NOVEMBER 26, 2003

APPEARANCES:

Marc-André Gravel                                    FOR THE APPLICANT

Janie Payette                                              FOR THE RESPONDENT

SOLICITORS OF RECORD:                                                                                                          

Gravel, Bédard, Vaillancourt                       FOR THE APPLICANT

Sainte-Foy, Quebec

Department of Justice - Canada                  FOR THE RESPONDENT

Montréal, Quebec