BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE,
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on July 5, 2005, at Chicoutimi, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
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JUDGMENT
The appeal under subsection 103(1) of the Employment Insurance Act is allowed and the decision of the Minister of National Revenue is set aside on the basis that the 14 hours worked on June 17 and June 18, 2002, were insurable hours, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 29th day of July 2005.
"Alain Tardif"
Certified true translation
On this 30th day of January 2006.
Garth McLeod, Translator
BETWEEN:
BILLY BOUDREAULT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] Essentially, this appeal is about whether the 14 hours allegedly worked on June 17 and June 18, 2002, constitute insurable employment.
[2] The Respondent determined that the hours in question were not insurable and that the Record of Employment (ROE) attesting to those hours was merely a document of convenience.
[3] For his part, the Appellant stated that he did work the 14 hours in question. He explained that Carl Boivin had called him the day before, namely June 16, 2002, the day of his son's death, to ask him to come back and continue the work in progress at the construction site where he had worked earlier.
[4] Carl Boivin confirmed his testimony and added that the Appellant worked for only six hours on June 18 because his emotional state following his son's death at age 20 on June 16 made the work dangerous for him.
[5] The Appellant explained that the work involved the building of a convenience store for the spouse of Carl Boivin with whom he had worked.
[6] Since Mr. Boivin did not have the permits needed to erect such a building, he enlisted the help of 9014-8792 Québec Inc., a company headed by a certain Normand Millard, as principal contractor. Through Mr. Millard, 9014-8792 Québec Inc., had clearly agreed to take charge of the construction site, where Carl Boivin was the foreperson.
[7] Mr. Millard was obviously not very interested in the worksite, undoubtedly because of the confusing, perhaps even nebulous, agreement; he was entirely comfortable with the efficiency and productivity of Mr. Boivin, whom he knew, since Mr. Boivin had worked for him several times. Moreover, Carl Boivin was working on a project in which the customer was his spouse.
[8] Mr. Boivin kept records of the Appellant's working hours and gave them to Normand Millard at unplanned meetings, but not methodically or regularly. Thus, it would not be startling or surprising if errors found their way into the ROE.
[9] In view of the special circumstances, Normand Millard was certainly not the best person to provide clear and accurate answers about the Appellant's working hours. That person was clearly Carl Boivin, whom the investigator did not contact.
[10] The Respondent initiated the investigation into the Appellant because of certain inconsistencies, notably when the first ROE was submitted; indeed, the ROE, which was dated June 20, 2002, made no reference to the 14 hours worked on June 17 and June 18 of that year.
[11] Thus, there was a flagrant inconsistency on the very face of the ROE which amply warranted questioning. Consequently, Gilles Bélanger, who was in charge of the investigation, called Normand Millard and the Appellant. The information and the answers to his questions were found to be inconsistent and even untruthful, at least facially.
[12] However, Mr. Bélanger acknowledged that the Appellant appeared confused and out of sorts generally. In fact, this is very much the way he seemed to me when testifying.
[13] On several occasions, despite the clarity and precision of his agent's questions, he was unable to understand, and his answers often had nothing to do with the questions.
[14] Mr. Millard, for his part, did not testify. However, he seems to have been unable to provide clear and accurate answers to the investigators' questions, thereby raising serious doubts about whether his explanations were truthful.
[15] Thus, the outcome of this appeal turns essentially on the credibility of three individuals: the Appellant, Carl Boivin, and Normand Millard. The investigation and the review of the file by appeals officer Lyne Courcy revealed several inconsistencies and confusions which gave rise to very serious, and reasonable, doubts about whether work really had been done on June 17 and June 18, 2002.
[16] However, the hearing made it easier to understand the special context of this matter and the reason for certain inconsistencies, and, while the hearing did not permit a finding beyond all doubt, the outcome of this appeal does not hinge on such a stringent burden of proof. The requisite standard is the preponderance of evidence.
[17] The Appellant's allegations were confirmed by the testimony of Carl Boivin, who had not been asked for his version of the facts during the investigation. As for Normand Millard, the building site was of no concern to him because Carl Boivin was the person in charge of the actual work.
[18] The confusion and various inconsistencies in the Appellant's testimony are not sufficient to conclude that there were fabrications or false statements; rather, I believe that the Appellant is an inarticulate person who has trouble with comprehension and communication. His answers to his lawyer's clear, simple and direct questioning aptly illustrated why he was not very convincing during the investigation, and in what way.
[19] Carl Boivin, the person for whom the Appellant did the disputed work, was, for his part, coherent, clear and very precise. I have no reason to disregard his testimony. The explanations provided were reasonable and plausible.
[20] For all these reasons, I accept the version of the facts submitted by the Appellant and Carl Boivin as plausible, and I accordingly allow the appeal and find that the 14 hours worked on June 17 and June 18, 2002, were insurable hours.
Signed at Ottawa, Canada, this 29th day of July 2005.
"Alain Tardif"
Tardif J.
Certified true translation
On this 30th day of January 2006.
Garth McLeod, Translator
STYLE OF CAUSE: Billy Boudreault and M.N.R.
PLACE OF HEARING: Chicoutimi, Quebec
REASONS FOR JUDGMENT BY: The Honourable Justice Alain Tardif
DATE OF JUDGMENT: July 29, 2005
APPEARANCES:
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Agent for the Appellant: |
Julie Simard, student at law
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Stéphanie Côté |
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COUNSEL OF RECORD:
For the Appellant:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada