[1] This is an application for judicial review of a decision of Margeson J.T.C.C. in which he dismissed the applicant's appeal of the Minister of National Revenue's (Minister) determination regarding her insurable employment in the years 1991, 1992 and 1993. The Minister had proceeded to adjustments of the applicant's demands under the Unemployment Insurance Act (Act) which resulted in a decrease to the number of insurable weeks and the amount of insurable earnings originally claimed.

[2] During the period in question, the applicant was a shellfisher of oysters, cohogs and clams. She sold her catches to Carrs Lobster Pound (the Payor) of Stanley Bridge, Prince Edward Island. She was paid by cash and cheque. Under Part V of the Fishermen's Regulations, section 76, the buyer of a catch was regarded as the employer of the fisherman who delivered it. It is in this context that the applicant applied for and received unemployment benefits under the Act.

[3] The re-assessment of her claim with respect to insurable weeks and earnings arose through a ruling by the Source Deductions Section of the P.E.I. District Taxation Office. The ruling was requested as a result of an investigation into reports that the Payor was issuing false records of employment.

[4] At the hearing before us, counsel for the applicant limited her arguments to the sole issue of the legitimacy of what she said was a common investigation carried by an investigator from Human Resources Development Canada (HRDC) and a Rulings Officer from Revenue Canada. She abandoned all other submissions contained in her Memorandum of Fact and Law.

[5] The evidence at trial before the Tax Court reveals that Mrs. Gallant, who would be the person called upon to act as Rulings Officer and to determine the status of the applicant, the amount of insurable earnings and premiums to be paid, if any, attended two meetings led by the HRDC investigating officer, Mr. Stevenson. The meetings were held with representatives of the Payor. The first one took place in the office of the Payor's lawyer. Mrs. Gallant took notes at the two meetings she attended. With the HRDC investigating officer, she also visited the premises of the Payor. All these activities occurred before a formal request was even made for a Ruling from Revenue Canada.

[6] According to the argument respecting the legitimacy of the alleged common investigation and its impact on the process, the role played by the Rulings Officer during the early investigation seriously compromised the integrity and fairness of the process insofar as she was unable to take a fresh look at the applicant's case when later required to rule on the applicant's demands. Her knowledge of relevant facts prior to a request by HRDC for a ruling regarding the applicant's insurability under the Act would have tainted her judgment and resulted in a bias on her part against the applicant.

[7] I should say at the outset that there is on the record no evidence of bias or of an appearance of bias on the part of the Rulings Officer. Nor is there any evidence that her presence at the two meetings impugned her freedom of decision. She was entitled to conduct an investigation of her own with a view to gathering facts which would enable her to issue a ruling as requested. She would also have been entitled to receive from the HRDC investigating officer an account of what transpired at these initial meetings with the Payor. Indeed, instead of obtaining the officer's subjective interpretation of the discussions, she was able to appreciate for herself and assess the information provided by the Payor on these occasions.

[8] Moreover, she did not limit her investigation to these meetings. She sent a questionnaire to the fishers, including the applicant. She also wrote to them, requesting any information they might want to provide her with before she made her ruling. The endeavours of the Rulings Officer indicate that she carried her own investigation and made her own decision on the basis of all the information gathered throughout the fact-finding process.

[9] I am far from being convinced that the presence of the Rulings Officer at the two meetings and her visit of the Payor's premises at an early stage of an investigation by the HRDC amounted to a common investigation and resulted in some impropriety on her part. The presence of the Ruling officer at these initial meetings spared the Payor the cost of later duplicating these meetings with her simply in order to discuss with her and give her the same information it gave to the HRDC investigating officer. However, assuming for the sake of argument that it did result in an impropriety, such impropriety was cured by the subsequent process.

[10] As a matter of fact, subsection 71(1) of the Act (now subsection 104(1) of the Employment Insurance Act) gave the Minister and the Tax Court of Canada authority to decide any question of fact or law necessary to be decided in determining matters of insurability. The proceedings before the Tax Court are in the nature of a trial of first instance. The judge can consider the matter anew. He can collect and consider all relevant evidence, including evidence not given to a Ruling or an Appeal officer.

[11] The Tax Court judge was aware of the Rulings Officer's attendance at the initial meetings and her visit to the Payor's business place with the HRDC investigating officer: see his reference to these facts in paragraphs 120, 136 and 351 of his decisions. He made no adverse comments on these events. It is fair to assume that he did not think that they amounted to an improper conduct or, in any event, that they would have any impact on his role as a reviewing judge.

[12] The Tax Court judge's decision shows that he did not limit his review of the Minister's decision to the findings of the Rulings Officer. He embarked on a fresh inquiry of considerable scope with many witnesses, including the applicant. He duly noted their testimonies with considerable care and detail. He cited exhibits as well as testimonies from examinations, cross-examinations and re-directs. I see no grounds for attacking the process he followed.

[13] For these reasons, the application for judicial review should be dismissed with costs.

"Gilles Létourneau"

J.A.

"I agree

J. Richard C.J."

"I agree

M. Nadon J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-380-99

STYLE OF CAUSE: PAMELA MURPHY, Applicant

THE MINISTER OF NATIONAL REVENUE, Respondent

PLACE OF HEARING: Charlottetown, P.E.I.

DATE OF HEARING: October 15, 2002

REASONS FOR JUDGMENT: LÉTOURNEAU J.A.

CONCURRED IN BY: RICHARD C.J.

NADON J.A.

DATED: October 22, 2002

APPEARANCES:

Regena Kaye Russell FOR THE APPELLANT

Mr. Peter Leslie FOR THE RESPONDENT

SOLICITORS OF RECORD:

Barrister and Solicitor FOR THE APPELLANT

O'Leary Station House

Main Street, P.O. Box 383

O'Leary, P.E.I. C0B 1V0

Department of Justice Canada FOR THE RESPONDENT

Atlantic Regional Office

Suite 1400, Duke Tower

5251 Duke Street

Halifax, N.S. B3J 1P3

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Murphy v. Canada (Minister of National Revenue), 2002 FCA 400

Citations2002 FCA 400

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2002 FCA 400