REASONS
FOR JUDGMENT
Hogan J.
I.
Introduction
[1]
The Appellant, Jacques Doucet, is appealing
determinations made by the Minister of National Revenue (the “Minister”)
regarding the pensionability and insurability of his alleged employment with
Layne O. Godin (the “Payer”) during the periods from April 11, 2010 to July 3,
2010 and from April 11, 2011 to July 9, 2011.
[2]
In a letter dated January 6, 2015, the Minister
informed the Appellant of the following (the “Decision”):
(a) For the period from April 25, 2011 to April 29, 2011, the Appellant
was employed by the Payer under a contract of service and was engaged in pensionable
and insurable employment in respect of which he had 40 insurable hours and $600
of insurable earnings; and
(b) For the periods from April 11, 2010 to July 3, 2010 and from April
11, 2011 to April 24, 2011 and from April 30, 2011 to July 9, 2011 (the “Contested
Periods”), the Appellant was not employed by the Payer and was not engaged in
pensionable and insurable employment.
[3]
In making her decision, the Minister relied on
the following assumptions of fact:
The Payer:
(a)
the Payer was a sole
proprietorship operating under the name of Godin’s Sea Products;
(b)
the Payer registered
his business with the Canada Revenue Agency on November 27, 2003;
(c)
the Payer operated from
the Payer’s residence at 599 Lorne Road, Lorne, New Brunswick;
(d)
the Payer operated in
the fishing industry as a buyer and seller of lobster and crab;
(e)
the Payer fished for
lobster in Zone 23 during the spring season;
(f)
in 2010, the spring
lobster season in Zone 23 was from April 25 to June 25;
(g)
in 2011, the spring
lobster season in Zone 23 was from April 30 to June 30;
(h)
the Payer reported from
fishing on his 11 Returns as follows:
|
Year
|
Gross Fishing Income
|
Net Fishing Income
|
|
2007
|
$60,477
|
$878
|
|
2008
|
$22,132
|
($1,800)
|
|
2009
|
$27,850
|
($14,448)
|
|
2010
|
$38,732
|
($2,572)
|
|
2011
|
$34,355
|
$17,693
|
(i)
the Payer did not fish
for crab, but purchased crab for resale during crab season which is generally
from August to October;
(j)
the Payer also purchased
lobster for resale;
(k)
the Payer sold directly
to the public out of a road side truck, and he sold to commercial clients;
(l)
the Payer reported
income from business on his T1 Returns as follows:
|
Year
|
Gross Business Income
|
Net Business Income
|
|
2007
|
$556,126
|
$2,492
|
|
2008
|
$503,357
|
$4,437
|
|
2009
|
$577,494
|
$3,909
|
|
2010
|
$295,660
|
$1,850
|
|
2011
|
$159,594
|
$2,827
|
(m)
in 2010, the Payer
issued T4 slips to 19 workers;
(n)
in 2011, the Payer
issued T4 slips to 15 workers;
(o)
the Payer paid his
workers in cash;
(p)
the Payer has known the
Appellant for at least 25 years;
(q)
the Payer and the
Appellant are not related;
The Worker:
(r)
the Appellant did not
provide any services to the Payer;
(s)
the Appellant did not
receive any remuneration from the Payer;
(t)
the Appellant operated
his own fish market called Doucet’s Fish Market (“Doucet’s”) in the yard of his
residence at Pointe la Nim, New Brunswick;
(u)
the Appellant sold
lobster and clams;
(v)
the Appellant did not
own fish tanks to store the lobster;
(w)
the Appellant purchased
stock for his market mainly from Arseneau Fish Market and Labillois Lobster;
(x)
the Appellant went to
Labillois Lobster for forty-three of the days during the Period, once or twice
a day, to order and take delivery of stock for sale in his own fish market; and
(y)
the Appellant was a
competitor of the Payer.
II.
Issue
[4]
The sole issue in this appeal is whether the
Appellant was employed in pensionable and insurable employment with the Payer
during the Contested Periods.
III.
Analysis
[5]
The evidence shows that an investigation of the
Payer’s activities as an employer began in 2009. At that time, the Payer was
suspected of issuing falsified records of employment for the purpose of
qualifying individuals for employment insurance benefits they were not entitled
to receive. The Payer was ultimately convicted of an offence in that regard. In
some cases the individuals listed as employees in the Payer’s falsified records
of employment had provided no services to the Payer. In other cases, the number
of hours worked and the employment income received by the individuals were
overstated.
[6]
My colleague Justice Favreau rendered a judgment
in an appeal brought by the Payer with respect to individuals who were found
either not to have been employed by the Payer for the 2007, 2008 and 2009 crab
and lobster season or not to have worked the hours indicated on the records of
employment of the Payer.
In that case, Justice Favreau concluded that Mr. Doucet was not employed by the
Payer during the lobster season in each of those years.
[7]
I arrive at a similar conclusion with respect to
the Appellant’s status during the Contested Periods. The Appellant, admitted
that he operated a retail lobster outlet during the Contested Periods. On cross
examination, his answers were evasive as to the duties he performed for the
Payer during the Contested Periods. He called no witnesses to corroborate his allegation
that he was employed by the Payer during the Contested Periods. The evidence
shows that the Payer did have a few actual employees during the Contested
Periods. I draw a negative inference from the fact that the Appellant chose not
to call any of them as witnesses to confirm his testimony. In addition, the
Appellant appeared to suffer from convenient lapses in memory. As a result, I
did not find the Appellant to be a credible and reliable witness.
[8]
For all of these reasons, the Appellant’s appeal
is dismissed and the Minister’s determinations are confirmed.
Signed at Ottawa, Canada, this 1st day of June 2017.
“Robert J. Hogan”
Email this Content