[official english translation]
|
Docket: 2002-4643(EI) |
|
BETWEEN: |
|
JEAN-GUY BRIDEAU, |
|
Appellant, |
|
And |
|
|
|
THE MINISTER OF NATIONAL REVENUE, |
|
Respondent. |
____________________________________________________________________
Appeal heard on October 1, 2003, at Bathurst, New Brunswick
|
Before: The Honourable S.J. Savoie, Deputy Judge |
|
|
|
|
|
Appearances: |
|
|
|
|
|
For the Appellant: |
The Appellant himself |
|
|
|
|
Counsel for the Respondent: |
Antonia Paraherakis |
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Grand-Barachois, New Brunswick, this 3rd day of February 2004.
|
"S.J. Savoie" |
Savoie, D.J.
Certified true translation
Manon Boucher
[OFFICIAL ENGLISH TRANSLATION]
|
Reference: 2004TCC60 |
|
Date: 20040203 |
|
Docket: 2002-4643(EI) |
|
BETWEEN: |
|
JEAN-GUY BRIDEAU, |
|
Appellant, |
|
And |
|
|
|
THE MINISTER OF NATIONAL REVENUE |
|
Respondent. |
REASONS FOR JUDGMENT
Savoie, D.J.
[1] This appeal was heard at Bathurst, New Brunswick, on October 1, 2003.
[2] This is an appeal of the insurability of the Appellant's employment when working for Lydia Savoie, the Payer, during the period in question, from October 28, 2001, to December 1, 2001.
[3] The Minister of National Revenue (the "Minister") informed the Appellant of the decision that his employment was not insurable for the period in question since he did not meet the requirements of a contract of service.
[4] The Minister's decision was based on the following assumptions of fact, set out in paragraphs 7 and 8 of the Reply to the Notice of Appeal, admitted, denied or ignored by the Appellant:
7.(a) the Payer purchased Christmas wreaths ("wreaths") that were handmade by different people, including the Appellant; (admitted)
(b) the Payer resold the wreaths to an export company working under the name Savoie Export Limitée; (ignored)
(c) the Payer did not know the Appellant's hours of work; (admitted)
(d) the Payer did not supervise the Appellant; (admitted)
(e) the Payer had no control over the number of wreaths the Appellant made; (ignored)
(f) on the Appellant's invoices, the Payer indicated a price of $15.00 per dozen for the Appellant's wreaths; (admitted)
(g) the Appellant produced two dozen wreaths per day; (admitted)
(h) the Appellant did not receive the $2,486.00 indicated on the employment record issued by the Payer; (admitted)
(i) the Appellant did not work 300 hours as indicated on the employment record issued by the Payer; (ignored)
(j) there was no contract of service between the Appellant and the Payer; (ignored)
8.(a) the following is from the invoices prepared in the Appellant's name: (ignored)
|
dates |
number of wreaths |
total amount |
|
|
|
|
|
October 29 |
23 doz. |
$345.00 |
|
November 3 |
10 ½ doz. |
$157.50 |
|
November 9 |
4 ½ doz. |
$67.50 |
|
November 9 |
28 doz. |
$428.00 |
|
November 12 |
2 ½ doz. |
$37.50 |
|
November 14 |
27 ½ doz. |
$412.50 |
|
November 16 |
3 doz. |
$45.00 |
|
November 22 |
6 doz. |
$90.00 |
|
November 24 |
27 doz. |
$405.00 |
|
November 26 |
27 ½ doz. |
$412.50 |
|
November 30 |
6 doz. |
$90.00 |
|
Total |
165 ½ doz. |
$2,482.50 |
(b) the Appellant did not receive any wages for the wreaths that he made; (admitted)
(c) the invoices in the Appellant's name do not reflect the number of wreaths the Appellant made during the period in question; (admitted)
(d) the period in question is 34 consecutive days; (admitted)
(e) the Appellant allegedly produced no more than 68 dozen wreaths during the period in question, that is, 2 dozen per day for 34 days, at 7 days a week, with no interruptions; (admitted)
(f) at $15.00 a dozen, the Appellant would have earned $1,020.00 at most for the period in question; (admitted)
(g) the Appellant's and the Payer's contributions to employment insurance and pension, along with the income tax deductions indicated on the Appellant's T-4 came to a total of $736.45; (ignored)
(h) the Appellant made wreaths in exchange for a record of employment for $2,486.00 and 300 hours; (admitted)
(i) the arrangement between the Appellant and the Payer was not a contract of service. (denied)
[5] The evidence established the following facts:
[6] The Payer did not know what the Appellant's hours of work were and did not give him any directives as to how to perform his duties. She did not determine his work schedule. The Appellant chose his own work schedule and decided how many hours he would work.
[7] The Appellant was not supervised at all. The Payer was only interested in the end product, the result of the work, regardless of the method used.
[8] Moreover, the Appellant had his own workplace and the Payer did not pay any rent for its use nor did she reimburse any expenses for heating or electricity. The Payer did not provide the Appellant with any tools to carry out his duties.
[9] According to the evidence, there was no relationship of subordination between the Payer and the Appellant, an essential element of all contracts of service. The Payer had no control over the Appellant, who worked as he liked and provided his own workplace and tools, other important elements of a contract of service.
[10] The evidence showed that this case is one of a number of others that led Human Resources Development Canada (HRDC) to investigate, after having received insurability applications. As many other workers hired by the Payer to make Christmas wreaths, the Appellant sold his wreaths to the Payer in exchange for forged employment records to justify employment insurance benefits.
[11] The Payer was penalized by HRDC for the fraud committed.
[12] It was established that the Appellant made wreaths and delivered them to the Payer with an invoice. In return, the Payer settled the invoice with a cheque, which the Appellant would cash in and then he would give the cash to the Payer. The Appellant and his spouse admitted to this arrangement during their testimony in court.
[13] Contrary to other cases, the evidence produced by the Appellant seemed true. The Appellant did not try to hide the facts or present a version that would exonerate him, as he tried to do with the investigators.
[14] In the present case, the answer to the insurability question can be found in paragraph 5(1)(a) of the Employment Insurance Act, which states:
5.(1) Subject to subsection (2), insurable employment is:
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or otherwise;
...
[15] The Appellant admitted to most of the Minister's presumptions. As for the statement at paragraph 8(i) of the Reply to the Notice of Appeal, he denied it, but did not provide any evidence to prove it was false. The Minister claimed that an arrangement between the Appellant and the Payer invalidated the contract of service. This presumption was proven. It must be noted again that the Appellant did not present any evidence to refute the presumptions that he chose to ignore.
[16] The Appellant had the onus of proving that the Minister's presumptions were false. He did not do so. As the Federal Court of Appeal found in Elia v. Canada (Minister of National Revenue-M.N.R.), [1998] F.C.J. No. 316, the Minister's presumptions should be considered accepted unless they have been specifically refuted by the Appellant.
[17] It is important to note that in the present case, it was proven that the Appellant did not receive any wages for the services rendered to the Payer. This would nullify the concept of insurable employment as defined under paragraph 5(1)(a) of the Employment Insurance Act, supra.
[18] The present case is simple: it is similar to Kelly v. M.N.R., [1989] No. 109 in which this Court, per Labelle J., wrote:
[translation]
The Court finds that the Appellants do not qualify for unemployment insurance benefits because they were never paid for the work they performed. The Appellants all worked the exact number of weeks they needed to receive unemployment insurance benefits. Although they worked, they were never paid. In exchange for their work, the employer gave them false employment records that allowed them to receive unemployment insurance benefits. The Court finds that the employment of each of the appellants was not insurable employment because the Appellants did not receive any wages. For these reasons, the Court confirms the Minister's decisions and dismisses the appeals.
[19] As a result, this Court must find that during the period in question, the Appellant did not have insurable employment with the Payer since there was no real contract of service within the meaning of paragraph 5(1)(a) of the Employment Insurance Act. Moreover, the Appellant and the Payer had an arrangement between themselves in order to qualify the Appellant for employment insurance benefits.
[20] For the reasons set out above, the appeal is dismissed and the decision of the Minister is confirmed.
Signed at Grand-Barachois, New Brunswick, this 3rd day of February 2004.
|
"S.J. Savoie" |
Savoie, D.J.
Certified true translation
Manon Boucher