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Docket: 2003-3029(EI) |
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BETWEEN: |
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MICHAEL YASSA, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
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Appeal heard on February 24, 2004 at Montreal, Quebec
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Before: The Honourable S.J. Savoie, Deputy Judge |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Anne Poirier |
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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 20th day of May 2004.
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"S.J. Savoie" |
Savoie, D.J.
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Citation: 2004TCC354 |
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Date: 20040520 |
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Docket: 2003-3029(EI) |
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BETWEEN: |
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MICHAEL YASSA, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
REASONS FOR JUDGMENT
Savoie, D.J.
[1] This appeal was heard in Montreal, Quebec on February 24, 2004.
[2] This is an appeal from a decision made by the Minister of National Revenue (the "Minister") that while the Appellant, was employed by 9051-4688 Quebec Inc. (the "Payer"), for the period from June 4, 2001 to January 7, 2002, his insurable hours totalled 350 and his insurable earnings were $4,050.00 for the period under review.
[3] In making his decision, the Minister relied on the following assumptions of fact:
a) the Payer had been incorporated on June 13, 1997; (ignored)
b) the Payer was operating a warehousing business and a trailer and truck washing business; (admitted)
c) the Payer was operating under the trade names of " J.A.M. Warehousing" and "Sunshine Trailers & Truck Wash"; (admitted)
d) the Appellant was engaged as a truck washer and as a janitor; (admitted)
e) the Appellant's tasks were to take out the garbage of the warehouse and of the office of the Payer, to clean the floor, to build division walls in the warehouse and to wash trucks; (admitted)
f) the Appellant was supervised by and received orders from Aurelio Robert Paravano; (admitted)
g) the Appellant worked from Monday to Friday on the Payer's premises; (admitted)
h) the Appellant was paid by a cheque in an amount of $800.00 every two weeks; (admitted)
i) on March 7, 2002, the Respondent asked the Payer for the cancelled cheques for payments made to the Appellant for his work during the years 2001 and 2002; (no knowledge)
j) on March 20, 2002, the Payer submitted five cheques made to the order of the Appellant for ten weeks of work; (admitted)
k) following the Payer [sic], the Appellant received $4,050.00 as earnings as follows: (admitted)
cheque #4 05/10/01 $800
#7 19/10/01 $800
#11 02/11/01 $800
#23 27/11/01 $850
#27 14/12/01 $800
l) the Appellant had no proof of the wages received; (admitted)
m) on January 1st, 2001, the minimum wage rate was $6.90 per hour; (admitted)
n) the Payer did not register the working hours of the Appellant; (denied)
6. The Appellant made a complaint against the Payer concerning recovery of wages under the Canada Labour Code, Part III. (admitted)
7. On October 9, 2002, Michel Germain, Labour Standards Officer, received the Appellant's complaint against the Payer and he condemned the Payer to pay the Appellant the sum of $3,677.12 minus the statutory deductions. (admitted)
8. The amount of $3,677.12 is detailed as follows: (admitted)
$440.00 for 55 unpaid hours of work
$680.00 for seven unpaid statutory holidays pay
$1,188.00 for overtime premium
$800.00 for notice of termination of employment
$569.12 for vacation pay
[4] The Appellant testified that he worked for the Payer from June 4, 2001 until January 7, 2002. His complaint is that he was only credited with 350 hours by the Payer. He stated that he was paid by cheque for which he had to sign and was given a copy of each paycheque which he never kept. That is part of the weakness of the Appellant's case, in that his claim is poorly documented.
[5] The Appellant denied the Minister's assumption that the Payer failed to register his working hours. However, he was unable to prove the falsehood of such assumption and therefore was unable to discharge the onus of proof cast upon him.
[6] The evidence shows that the Appellant made certain requests to the National Bank of Canada to produce documents that would support his claim. At the hearing, the Court granted his request for an extension of time to enable him to gather the supporting documents in question. These have now been received. Unfortunately, the information contained in the documents produced is so sketchy, vague and incomplete, that it cannot successfully assist the Appellant in the position he has taken.
[7] In his determination, however, the Minister took into consideration the earnings of the Appellant documented by the cheques provided by the Payer totalling $4,050.00 as well as the findings of Michel Germain, Labour Standards Officer and Human Resources Development Canada (HRDC), who investigated the Appellant's complaint against the Payer. Mr. Germain concluded that the Appellant was owed a further amount of $3,677.12 by the Payer and demanded payment of that amount on behalf of the Appellant. The evidence shows that neither HRDC nor the Appellant were successful in their attempts at recovery against the Payer.
[8] It is the position of the Minister that certain statutory deductions must be made out of the claim of $3,677.12, namely, the overtime premium in the amount of $1,188.00 and the amount that would have been paid by reason of termination of the employment, namely $800.00. The Minister's conclusion in that regard is well-founded. It is so provided in the following excerpt of the Insurable Earnings and Collection of Premiums Regulations:
2.(1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and
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(2) For the purposes of this Part, the total amount of earnings that an insured person has from insurable employment includes the portion of any amount of such earnings that remains unpaid because of the employer's bankruptcy, receivership, impending receivership or non-payment of remuneration for which the person has filed a complaint with the federal or provincial labour authorities, except for any unpaid amount that is in respect of overtime or that would have been paid by reason of termination of the employment. (the underlining is mine)
[9] In summary, therefore, the insurable earnings of the Appellant are $4,050.00.
[10] With respect to the number of insurable hours of the Appellant for the disputed period, the establishment of same presented some difficulty. Consequently, the Minister followed the enabling provisions in that regard established by the Employment Insurance Regulations. The relevant sections provide as follows:
9.2 Subject to section 10, where a person's earnings or a portion of a person's earnings for a period of insurable employment remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, the person is deemed to have worked in insurable employment for the number of hours that the person actually worked in the period, whether or not the person was remunerated.
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10.(4) Except where subsection (1) and section 9.1 apply, where a person's actual hours of insurable employment in the period of employment are not known or ascertainable by the employer, the person, subject to subsection (5), is deemed to have worked, during the period of employment, the number of hours in insurable employment obtained by dividing the total earnings for the period of employment by the minimum wage applicable, on January 1 of the year in which the earnings were payable, in the province where the work was performed.
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(5) In the absence of evidence indicating that overtime or excess hours were worked, the maximum number of hours of insurable employment which a person is deemed to have worked where the number of hours is calculated in accordance with subsection (4) is seven hours per day up to an overall maximum of 35 hours per week.
[11] The Minister has therefore calculated the number of insurable hours in accordance with the Regulations. They amount to 350 hours.
[12] On the basis of the evidence presented to the Court and the Regulations under which the Minister made his determination in the absence of supporting data to the Appellant's claim, it is the conclusion of this Court that the Appellant has failed to demonstrate the advisability of this Court's interference with the Minister's decision.
[13] The Minister's conclusion is well-founded, both factually and legally. The appeal is dismissed and the Minister's decision is confirmed.
Signed at Grand-Barachois, New Brunswick, this 20th day of May 2004.
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"S.J. Savoie" |
Savoie, D.J.
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CITATION: |
2004TCC354 |
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COURT FILE NO.: |
2003-3029(EI) |
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STYLE OF CAUSE: |
Michel Yassa and M.N.R. |
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PLACE OF HEARING |
Montreal, Quebec |
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DATE OF HEARING |
February 24, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable S.J. Savoie, Deputy Judge |
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DATE OF JUDGMENT |
May 20, 2004 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Anne Poirier |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |