Mule v. M.N.R.

Mule v. M.N.R. Court (s) Database Tax Court of Canada Judgments Date 2004-07-23 Neutral citation 2004 TCC 518 File numbers 2001-4556(EI) Judges and Taxing Officers Murray A. Mogan Subjects Canada Pension Plan Decision Content Docket: 2001-4556(EI) BETWEEN: DORA MULE, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. ____________________________________________________________________ Appeal called for hearing on June 21, 2002, at Hamilton, Ontario, By: The Honourable Justice M.A. Mogan Appearances: Agent for the Appellant: Thomas Coulson Troy Counsel for the Respondent: James Rhodes ____________________________________________________________________ ORDER Upon hearing the agent for the Appellant and counsel for the Respondent submit that this Court does not have jurisdiction to decide the issue raised in the Notice of Appeal; It is ordered that the appeal pursuant to the Employment Insurance Act is quashed. Signed at Ottawa, Canada, this 23rd day of July, 2004. "M.A. Mogan" Mogan J. Citation: 2004TCC518 Date: 20040723 Docket: 2001-4556(EI) BETWEEN: DORA MULE, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. REASONS FOR ORDER Mogan J. [1] This appeal was to be heard at Hamilton, Ontario on Friday, June 21, 2002. When the appeal was called for hearing, the Appellant's agent and counsel for the Respondent both stated their recent conclusion that this Court did not have jurisdiction to decide the issue raised in the Notice of Appeal. Following a lengthy discussion in Court, counsel for the Respondent (Mr. Rhodes) undertook to provide a written submission on the question of jurisdiction. I have had the benefit of reading Mr. Rhodes' submission which was received soon after June 21, 2002 but, unfortunately, was mislaid. [2] Because the question of jurisdiction was a condition precedent to the hearing of the appeal, no evidence was called although the Appellant, Dora Mule, was in Court on June 21st. Accordingly, for the purpose of setting out the basic facts, I shall rely on the pleadings and a binder of eight documents submitted by counsel for the Respondent plus certain statements made in Court on June 21, 2002. [3] The Appellant was employed full time as a cleaner by the Hamilton Wentworth Catholic District School Board (the "School Board"). She worked at the Cardinal Newman High School. The Saltfleet Public Library (operated by the City of Stoney Creek) was located within the high school building. During the regular school year, the Appellant worked six hours each day (Monday to Friday) five hours cleaning the school and one hour cleaning the library. From July 15 to September 5, 2000, the Appellant's working time was reduced to one hour per day (Monday to Friday) cleaning only the library because the school was closed. Apparently, she was paid only by the School Board; and there was a separate arrangement under which the Saltfleet Public Library paid the School Board for cleaning services. [4] On July 9, 2000, the School Board issued a Record of Employment showing the Appellant's status as "layoff" for the period July 15 to September 5, 2000. On the basis of that Record of Employment, the Appellant filed a claim for unemployment benefits (Tab 4) under the Employment Insurance Act (the "EI Act"). The Canada Employment Insurance Commission ("the Commission") approved the claim and the Appellant received unemployment benefits during the relevant period. In a letter dated November 3, 2000, the Commission notified the Appellant of its decision to cancel her claim for benefits on the basis that she did not experience an interruption of earnings (seven consecutive days without work or pay) prior to the start of the claim period on July 17, 2000. As a result, the Appellant was not authorized to receive unemployment benefits. The Commission also noted that the Record of Employment showing her status as "layoff" was issued in error. Therefore, the Appellant was required to repay the benefits she had received for the period July 15 to September 5, 2000. [5] The Appellant appealed the Commission's decision to a board of referees. On January 30, 2001, the Commission requested a ruling (Tab 1) from the Canada Customs and Revenue Agency ("CCRA") on the question whether the City of Stoney Creek was a separate employer. In other words, did the Appellant have two employers in July and August, 2000? On March 28, 2001, CCRA ruled (Tab 2) that the Appellant was employed only by the School Board during the relevant time; and that the Appellant did not experience an "interruption of earnings" to entitle the Appellant to benefits under the EI Act. The Appellant's appeal to the board of referees was adjourned on April 19, 2001 to permit the Appellant to appeal to the Minister of National Revenue from the CCRA ruling. The Appellant appealed to the Minister pursuant to a letter dated June 22, 2001. [6] On September 21, 2001, the Minister confirmed (Tab 3) the ruling of March 28, 2001. By letter dated December 17, 2001, the Appellant appealed to this Court from the Minister's confirmation. It is in the context of this appeal commenced on December 17, 2001 that I am required to decide whether this Court has jurisdiction to review the correctness of the Minister's confirmation, and perhaps whether CCRA had authority to make its ruling. On page seven of the Notice of Appeal (letter of December 17, 2001), the Appellant raised two questions: whether the City of Stoney Creek was her employer at any relevant time; and whether she had an "interruption of earnings" from employment between July 15 and September 5, 2000. At the hearing in Hamilton on June 21, 2002, the Appellant's agent abandoned the first question as to whether the City of Stoney Creek was the Appellant's employer at any relevant time. Therefore, the only remaining question is whether the Appellant had an interruption of earnings. [7] Within the EI Act, there are two different methods for the resolutions of disputes depending upon whether the subject of the dispute is (i) entitlement to benefits; or (ii) insurability. I will consider first entitlement to benefits. Entitlement to Benefits [8] The basic statutory provision is section 7. 7(1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them. 7(2) An insured person, other than a new entrant or a re-entrant to the labour force, qualifies if the person (a) has had an interruption of earnings from employment; and (b) has had during their qualifying period at least the number of hours of insurable employment set out in the following table in relation to the regional rate of unemployment that applies to the person. (Table omitted) Under section 48, the Commission is authorized to determine whether a person is qualified to receive benefits. 48(1) No benefit period shall be established for a person unless the person makes an initial claim for benefits in accordance with section 50 and the regulations and proves that the person is qualified to receive benefits. 48(2) No benefit period shall be established unless the claimant supplies information in the form and manner directed by the Commission, giving the claimant's employment circumstances and the circumstances pertaining to any interruption of earnings, and such other information as the Commission may require. 48(3) On receiving an initial claim for benefits, the Commission shall decide whether the claimant is qualified to receive benefits and notify the claimant of its decision. [9] Section 52 permits the Commission to reconsider within a certain period of time a decision it has previously made with respect to a claim for benefits. 52(1) Notwithstanding section 120, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable. 52(2) If the Commission decides that a person (a) has received money by way of benefits for which the person was not qualified or to which the person was not entitled, or (b) has not received money for which the person was qualified and to which the person was entitled, the Commission shall calculate the amount of the money and notify the claimant of its decision and the decision is subject to appeal under section 114. The appeal under section 114 referred to in subsection 52(2) is to a "board of referees" as defined in subsection 2(1). 114(1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) such further time as the Commission may in any particular case for special reasons allow. The decision of a board of referees may, by section 115, be appealed to an "umpire" as defined in subsection 2(1). 115(1) An appeal as of right to an umpire from a decision of a board of referees may be brought by (a) the Commission; (b) a claimant or other person who is the subject of a decision of the Commission; (c) the employer of the claimant; or (d) an association of which the claimant or employer is a member. Insurability [10] The basic statutory provision is section 5: 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 partly by time and partly by the piece, or otherwise; (b) employment in Canada as described in paragraph (a) by Her Majesty in right of Canada; (c) ... 5(2) Insurable employment does not include (a) employment of a casual nature other than for the purpose of the employer's trade or business; (b) the employment of a person by a corporation if the person controls more than 40% of the voting shares of the corporation; (c) ... In determining whether any particular employment is insurable, the first request for a ruling comes under section 90. 90(1) An employer, an employee, a person claiming to be an employer or an employee or the Commission may request an officer of the Canada Customs and Revenue Agency authorized by the Minister to make a ruling on any of the following questions: (a) whether an employment is insurable; (b) how long an insurable employment lasts, including the dates on which it begins and ends; (c) what is the amount of any insurable earnings; (d) how many hours an insured person has had in insurable employment; (e) whether a premium is payable; (f) what is the amount of a premium payable; (g) who is the employer of an insured person; (h) whether employers are associated employers; and (i) what amount shall be refunded under subsections 96(4) to (10). [11] After a ruling has been made under section 90, further appeals are provided in sections 91, 92, 103 and 104. 91 An appeal to the Minister from a ruling may be made by the Commission at any time and by any other person concerned within 90 days after the person is notified of the ruling. 92 An employer who has been assessed under section 85 may appeal to the Minister for a reconsideration of the assessment, either as to whether an amount should be assessed as payable or as to the amount assessed, within 90 days after being notified of the assessment 103(1) The Commission or a person affected by a decision on an appeal to the Minister under section 91 or 92 may appeal from the decision to the Tax Court of Canada in accordance with the Tax Court of Canada Act and the applicable rules of court made thereunder within 90 days after the decision is communicated to the Commission or the person, or within such longer time as the Court allows on application made to it within 90 days after the expiration of those 90 days. 104(1) The Tax Court of Canada and the Minister have authority to decide any question of fact or law necessary to be decided in the course of an appeal under section 91 or 103 or to reconsider an assessment under section 92 and to decide whether a person may be or is affected by the decision or assessment. Analysis [12] As stated in paragraph 6 above, the only remaining question is whether the Appellant had an interruption of earnings. This is a principal qualification spelled out in subsection 7(2). See above. The question of whether a person has had an interruption of earnings from employment is not one of the questions set out in subsection 90(1) - see above - which is the first step in granting jurisdiction to the Minister (section 91) and then to the Tax Court of Canada (section 103). [13] On the facts of this appeal, the Commission first determined that the Appellant was entitled to receive unemployment benefits and those benefits were paid. Under section 52 of the EI Act, the Commission reconsidered the Appellant's claim, and decided that she did not qualify for benefits because she did not have an interruption of earnings. According to subsection 52(2), it is the decision of the Commission which is subject to an appeal under section 114 to a board of referees. The Appellant did in fact appeal to a board of referees but the Commission then requested a ruling from CCRA on the question of whether the City of Stoney Creek was a separate employer. It was the Commission's request of CCRA which started the Appellant down the track which led her to this Court. See the facts summarized in paragraphs 5 and 6 above. [14] Section 48 of the EI Act grants jurisdiction to the Commission to decide whether a claimant is qualified to receive unemployment benefits. The basic qualification is whether the claimant has had an interruption of earnings from employment. The ruling which the Commission requested of CCRA (whether the City of Stoney Creek was a separate employer) was incidental to the basic question of whether the claimant had an interruption of earnings. Therefore, the Commission had jurisdiction to determine whether the City of Stoney Creek was a separate employer as part of its overall jurisdiction to determine if there had been an interruption of earnings. [15] Within the EI Act, the jurisdiction of this Court is based on sections 90, 91, 92 and 103. Whether a particular claimant has had an interruption of earnings is not one of the questions set out in subsection 90(1). Therefore, the Minister of National Revenue (in Part IV of the EI Act) and this Court do not have jurisdiction to determine whether a claiming has had an interruption of earnings from employment. I will make an order quashing the appeal herein. Signed at Ottawa, Canada, this 23rd day of July, 2004. "M.A. Mogan" Mogan J. CITATION: 2004TCC518 COURT FILE NO.: 2001-4556(EI) STYLE OF CAUSE: Dora Mule and the Minister of National Revenue PLACE OF HEARING: Hamilton, Ontario DATE OF HEARING: June 21, 2002 REASONS FOR ORDER BY: The Honourable Justice M.A. Mogan DATE OF ORDER: July 23, 2004 APPEARANCES: Agent for the Appellant: Thomas Coulson Troy Counsel for the Respondent: James Rhodes COUNSEL OF RECORD: For the Appellant: Name: N/A Firm: N/A For the Respondent: Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada