Date: 20020522
Docket: 2000-1795-EI
BETWEEN:
ULYSSE LEBLANC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Savoie, D.J.T.C.C.
[1] This appeal was heard in Moncton, New Brunswick, on March 12, 2002.
[2] This is an appeal from a decision by the Minister of National Revenue (the "Minister") that the Appellant was engaged with J & S Lumber Co. Ltd., the Payor, in insurable employment during 18 weeks from July 18, 1994 to November 18, 1994, during 22 weeks from June 5, 1995 to November 3, 1995 and during 29 weeks from June 3, 1996 to December 21, 1996 (the "periods in question") and that his insurable earnings totalled $10,500.00, $13,430.00 and $9,224.60 for 1994, 1995 and 1996 respectively.
[3] In making his decision, the Minister relied on the following assumptions of fact:
a) the Payor is a corporation duly registered in the Province of New Brunswick engaged in a logging operation;
b) the Appellant was hired by the Payor as a woodcutter;
c) the Appellant performed services for the Payor under a contract of service;
d) the Payor reported the Appellant's periods of employment as 14 consecutive weeks from August 15, 1994 to November 18, 1994; 17 consecutive weeks from July 10, 1995 to November 3, 1995; and 18 consecutive weeks from July 15 to November 15, 1996;
e) each year in question, the following amount of wood was scaled in the name of the Appellant prior to and after the period of employment reported by the Payor:
1994
week ending number of cords
December 10 11.88
December 17 24.07
December 24 42.59
December 31 8.34
1995
week ending number of cords
June 10 11.99
June 17 24.75
June 24 13.29
July 1 21.89
July 8 2.25
November 11 22.66
November 18 4.25
November 25 23.42
December 2 47.42
December 9 25.63
December 16 40.13
December 30 43.36
1996
week ending number of cords
June 3 23.46
June 15 1.41
July 13 10.77
November 23 6.77
November 30 22.75
f) the Payor's production 1996 reports for the Appellant indicate that 163.44 cords of wood were scaled in the Appellant's name after December 14, 1996, for wood cut on Block 111, Hell's gate which was cut between December 13, 1996 and February 14, 1997;
g) the Appellant started cutting wood prior to and continued to work after the periods reported by the Payor;
h) the Minister allowed that the amount of wood scaled each year after November 18, 1994 and November 3, 1995 could have been cut prior to those dates;
i) the Minister allowed that the amount of wood scaled after December 21, 1996 but prior to January 1, 1997, could have been cut prior to those dates;
j) as shown in Schedule A and B, the amounts of insurable earnings reported by the Payor on the Appellant's Records of Employment and on his T4s each year do not reflect the actual amounts paid to the Appellant or the amounts of wood recorded in the production reports;
k) the number of insurable weeks and the amount of insurable earnings reported on the Records of Employment issued by the Payor to the Appellant are incorrect.
[4] The Appellant admits all assumptions of fact relied upon by the Minister with the exception of subparagraphs j) and k) about which he professes to have no knowledge and subparagraphs f) and g) which he admits generally but wishes to add that although he began to work prior to the period in question, his employment ceased on November 15, 1996.
[5] That was the extent of the evidence produced by the Appellant at the hearing. The Minister's counsel even declined the Court's invitation to cross-examine the Appellant.
[6] On the other hand, Joanne Robichaud, appeals officer at Canada Customs and Revenue Agency for the (HRDC) testified at the hearing for the Respondent. As well, the Court received in evidence the relevant documents covering the periods in question, such as the production records of the worker, his records of employment and the cheques he received from the employer. All of these have contributed to establish the Minister's position and more appropriately his assumptions of fact upon which he relied to make his decision.
[7] As was stated by this Court on numerous occasions, the case of Elia v. Canada (Minister of National Revenue - M.N.R.), [1998] F.C.J. No. 316 decided by the Federal Court of Canada, stands for the proposition that the Minister's assumptions of fact are taken to be admitted by the Appellant unless he specifically disproves them. This, the Appellant has failed to do.
[8] Furthermore, the evidence called by the Respondent and the documentary proof received in evidence was conclusive in advancing the Minister's conclusion to an extent far exceeding the standard of proof required of him.
[9] Consequently, the appeal is dismissed and the decision of the Minister is confirmed.
[10] The Appellant was engaged by the Payor in insurable employment within the meaning of paragraph 3(1)(a) of the Unemployment Insurance Act for the periods in question until June 29, 1996 and within the meaning of paragraph 5(1)(a) of the Employment Insurance Act during the period from June 30, 1996 to December 21, 1996, for a total of 18 weeks for 1994, 22 weeks for 1995 and 29 weeks for 1996.
[11] Further, the Appellant's insurable earnings for the periods in question consisted of all the amounts paid to him as shown on Schedules A and B attached to the Reply to the Notice of Appeal, including the payroll deductions reported by the Payor, for a total of $10,500.00 in 1994, $13,430.00 in 1995 and $9,224.60 in 1996.
Signed at Grand-Barachois, New Brunswick, this 22nd day of May 2002.
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"S.J. Savoie" |
D.J.T.C.C.
COURT FILE NO.: 2000-1795(EI)
STYLE OF CAUSE: Ulysse LeBlanc and M.N.R.
PLACE OF HEARING: Moncton, New Brunswick
DATE OF HEARING: March 12, 2002
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge S.J. Savoie
DATE OF JUDGMENT: May 22, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphanie Côté
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-1795(EI)
BETWEEN:
ULYSSE LEBLANC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on March 12, 2002 at Moncton, New Brunswick, by
the Honourable Deputy Judge S.J. Savoie
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphanie Côté
JUDGMENT
The appeal is dismissed and the decision rendered by the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Grand-Barachois, New Brunswick, this 22nd day of May 2002.
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"S.J. Savoie" |
D.J.T.C.C.