Date:
20030204
Docket:
A-468-01
Neutral
Citation: 2003 FCA 62
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
NADON J.A.
BETWEEN:
ATTORNEY
GENERAL
OF
CANADA
Applicant
and
MONDO-TECH
INTERNATIONAL INC.
Respondent
Hearing
held in Montréal, Quebec, on February 4, 2003.
Judgment delivered from the bench at Montréal,
Quebec, on February 4, 2003.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU
J.A.
Date:
20030204
Docket:
A-468-01
Neutral
Citation: 2003 FCA 62
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
NADON J.A.
BETWEEN:
ATTORNEY
GENERAL
OF
CANADA
Applicant
and
MONDO-TECH
INTERNATIONAL INC.
Respondent
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal, Quebec,
on
February 4, 2003.)
LÉTOURNEAU J.A.
[1]
This is an application for judicial review of a decision of a Deputy
Judge of the Tax Court of Canada setting aside the determination by the
Minister of National Revenue that Carlos Perez Miqueiro (the worker) was
in insurable employment with the respondent from August 1, 1998 to January 12,
1999 within the meaning of the Employment Insurance Act, S.C. 1996,
c. 23.
[2]
An analysis of both the agreement between the Government of Canada and
the respondent and the tripartite agreement between the respondent, the worker
and Métalec Inc.
(an analysis not done by the Deputy
Judge) indicates that the worker was working as an intern for an international
youth internship program. The analysis also shows that the worker was hired and
paid by the respondent, that it assumed some responsibilities for the worker
and that the worker had to submit to the authority of the respondent on any
matter that related to the program or that might have an impact on the program.
Lastly, it was the respondent who had the power, at its sole discretion, to
rescind the agreement with the worker.
[3]
In our view, these agreements show that the respondent was the worker’s
employer, and that the Deputy Judge erred in finding that the respondent acted
as a mere intermediary.
[4]
The Deputy Judge also erred in finding that the worker did not receive
any remuneration because the amounts he received came from a grant from the
Canadian International Development Agency. Article 4.1.15 of the tripartite
agreement provided that the worker would be paid by the respondent on
production of bills at the beginning of each month.
[5]
Lastly, the Deputy Judge completely ignored the provisions of section 5
and paragraph
6(b) of the Employment
Insurance Regulations, SOR/96-332, which state that employment of a trainee
outside Canada or partly outside Canada is insurable employment provided that
the conditions set out in those sections are met, which is the case here.
[6]
For these reasons, the application for judicial review will be allowed
with costs, the decision of the Deputy Judge of the Tax Court of Canada dated
July 17, 2001 will be set aside, and the matter will be returned to the Chief
Judge of the Tax Court of Canada or to a judge designated by him for a
rehearing on the basis that the appeal by the respondent of the Minister’s
determination made on August 6, 1999 must be dismissed.
“Gilles Létourneau”
J.A.
Certified true translation
Mary Jo Egan, LLB
FEDERAL
COURT OF CANADA
APPEAL DIVISION
Date: 20030204
Docket: A-468-01
Between:
ATTORNEY GENERAL
OF CANADA
Applicant
and
MONDO-TECH INTERNATIONAL INC.
Respondent
REASONS
FOR JUDGMENT OF THE COURT
FEDERAL
COURT OF CANADA
APPEAL
DIVISION
SOLICITORS
OF RECORD
DOCKET: A-468-01
CORAM: DESJARDINS
J.A.
LÉTOURNEAU J.A.
NADON J.A.
STYLE OF
CAUSE:
ATTORNEY
GENERAL OF CANADA
Applicant
and
MONDO-TECH
INTERNATIONAL INC.
Respondent
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: February 4, 2003
REASONS FOR JUDGMENT OF THE COURT BY: Létourneau J.A.
DATED: February
4, 2003
APPEARANCES:
Nathalie
Labbé FOR THE APPLICANT
Mounes Ayadi
SOLICITORS OF RECORD:
Morris Rosenberg FOR
THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
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