[1] This is an application for judicial review of a decision of Tax Court Judge Gordon Teskey dated September 26, 2001. The Tax Court Judge dismissed the applicant's appeal of a decision made by the Minister of National Revenue on February 4, 2000, wherein he concluded that the applicant was not employed in insurable employment while engaged by Agpro Services Inc. ("Agpro") for the period of May 28, 1998 to October 24, 1998 within the meaning of paragraphs 5(1), 5(2) and 5(3) of the Employment Insurance Act, S.C. 1996, c. 23 (the "Act").

[2] In Canada v. Jencan Ltd., [1998) 1 F.C. 187, Isaac C.J. clarified the two stage inquiry that the Tax Court Judge must undertake when hearing an appeal from a determination by the Minister under subparagraph 3(2)(c)(ii) of the Unemployment Insurance Act, R.S.C. 1985,

c. U-1, now paragraph 5(3)(b) of the Act.

[3] At the first stage of the inquiry, the Tax Court Judge must assess the legality of the Minister's determination. In doing so, the Tax Court Judge must accord judicial deference to the Minister's discretionary decision unless the Tax Court Judge finds that the Minister has exercised his discretion in a manner contrary to law. In assessing whether the Minister has exercised his discretion properly, the Tax Court Judge need not defer to the Minister's findings of fact, but have regard to the facts raised before the Court during the hearing of the appeal.

[4] The Tax Court Judge may only proceed to the second stage and consider the merits of the Minister's decision if one of the following grounds for interference is established: (i) the Minister acted in bad faith or for an improper purpose or motive; (ii) the Minister failed to take into account all of the relevant circumstances, as expressly required by subparagraph 3(2)(c)(ii); or (iii) the Minister took into account an irrelevant factor^{^[1]}. Therefore, it "is only where the Minister's determination lacks a reasonable evidentiary foundation that the Tax Court's intervention is warranted"^{^[2]}.

[5] In light of Jencan, supra, I am of the view that the Tax Court Judge reviewed the Minister's decision correctly and made no error in concluding that there were no grounds for disturbing the Minister's decision that the applicant's employment with Agpro was not insurable employment under paragraphs 5(2)(i) and 5(3)(b) of the Act. The Minister, on the basis of a number of assumed facts, concluded that the applicant's employment with Agpro was not at arm's length and it was not reasonable to conclude that the applicant and Agpro would have entered into a substantially similar contract of employment had they been dealing at arm's length.

[6] With respect to the first stage of the inquiry, the Tax Court Judge carefully reviewed the Minister's assumptions of fact in light of the evidence adduced by the parties and concluded that there were sufficient facts to support the Minister's decision. The Tax Court Judge found that the Minister had considered all of the relevant facts and that he had not been misled by irrelevant considerations.

[7] Although not obliged to do so, in view of his conclusion with respect to the first step of the inquiry, the Tax Court Judge turned his attention to the merits of the case. He held, on the basis of his findings of fact and, more particularly, concerning the remuneration paid to the applicant, the terms and conditions of his employment, the duration and the nature and importance of the work performed by the applicant, that he would not have had any difficulty in concluding that it was not reasonable to conclude that the applicant and Agpro would had entered into a substantially similar contract of employment had they been dealing at arm's length.

[8] The applicant made a number of arguments pertaining to sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). In view of this Court's decision in Pérusse v. Canada (M.N.R.), [2000] F.C.J. No. 310 (Q.L.), I see no merit in the applicant's s. 15 Charter argument. I also see no merit in the applicant's argument that his s. 7 Charter rights were engaged or infringed, nor do I see any merit in his contention that he was denied natural justice in the course of the process which culminated in the Tax Court Judge's decision.

[9] For these reasons, I conclude that this judicial review application should be dismissed with costs.

"M. Nadon"

J.A.

"I agree.

J. Richard C.J."

"I agree.

Gilles Létourneau J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-631-01

STYLE OF CAUSE: ANTHONY MILLER v.

HER MAJESTY THE QUEEN

PLACE OF HEARING: Charlottetown, Prince Edward Island

DATE OF HEARING: October 15, 2002

REASONS FOR JUDGMENT: NADON J.A.

CONCURRED IN BY: RICHARD C.J.

LÉTOURNEAU J.A.

DATED: October 25, 2002

APPEARANCES:

Anthony Miller FOR THE APPELLANT

Peter Leslie FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Anthony Miller

P. O. Box 55

Tryon, PEI

COA 1JO FOR THE APPELLANT

Peter Leslie

Department of Justice

Suite 1400, Duke Tower

5251 Duke Street

Halifax, NS

B3J 1P3 FOR THE RESPONDENT

^{^[1]} [1998] 1 F.C. 187 at para. 37.

^{^[2]} Ibid at para 50.

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Canada v. Miller, 2002 FCA 412

Citations2002 FCA 412

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2002 FCA 412