Provost v. Canada (National Revenue)

Provost v. Canada (National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2005-05-05 Neutral citation 2005 FCA 165 File numbers A-192-04 Decision Content Date: 20050505 Dockets: A‑192‑04 A‑193‑04 Citation: 2005 FCA 165 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. BETWEEN: A‑192‑04 FRANCINE PROVOST Appellant and THE MINISTER OF NATIONAL REVENUE Respondent ________________________ A‑193‑04 TIBÉRIO MASSIGNANI Appellant and THE MINISTER OF NATIONAL REVENUE Respondent Hearing held at Montréal, Quebec, on May 5, 2005. Judgment delivered from the bench at Montréal, Quebec, on May 5, 2005. REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A. Date: 20050505 Dockets: A‑192‑04 A‑193‑04 Citation: 2005 FCA 165 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. BETWEEN: A‑192‑04 FRANCINE PROVOST Appellant and THE MINISTER OF NATIONAL REVENUE Respondent ________________________ A‑193‑04 TIBÉRIO MASSIGNANI Appellant and THE MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec, on May 5, 2005) LÉTOURNEAU J.A. [1] These are two appeals from a decision of the Tax Court of Canada. At the conclusion of his decision, the trial judge said that in his opinion the job performed by the two appellant parties was not an insurable employment owing to the non‑arm’s length relationship that existed between them and the company Les Confections Tiva Inc. (Tiva) that hired them. [2] Tiva had established a scheme by which the employees worked the minimum number of weeks required to qualify for unemployment‑insurance benefits. However, these workers had to continue performing services for Tiva, at a reduced wage, during their periods of unemployment. [3] The judge found that there was a genuine contract of employment between the appellant parties and Tiva. The lawfulness of this determination was not disputed before us. We are obliged to accept it, therefore. [4] From there, we arrive at his conclusion that the appellant parties accepted conditions of employment that other workers would not have accepted and that this acceptance is explained by the non‑arm’s length relationship they maintained with Tiva. But according to the evidence, the appellant parties participated in the scheme and performed their employment under the same conditions as the other employees who themselves were at arm’s length from Tiva. It is therefore incorrect to conclude that they enjoyed an advantage in comparison with the other employees because of their non‑arm’s length relationship and that by that token their employment was not insurable. Needless to say, this result, at which we are obliged to arrive, in no way prejudges the issue of the eligibility of the appellant parties for unemployment benefits. [5] For these reasons, the appeals will be allowed, the decision of the Tax Court of Canada judge will be set aside and the two cases will be sent back to the Chief Judge of the Tax Court of Canada or the judge he designates for redetermination on the basis that the two appellant parties held an insurable employment for the periods in dispute. The appellant parties will be entitled to the disbursements in each of the two dockets, but to only one set of costs. “Gilles Létourneau” J.A. Certified true translation Kelley Harvey, BCL, LLB FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A‑192‑04 STYLE: FRANCINE PROVOST v. THE MINISTER OF NATIONAL REVENUE PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 5, 2005 REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A. APPEARANCES: Pierre Lupien FOR THE APPELLANT Anne Poirier FOR THE RESPONDENT SOLICITORS OF RECORD: Montréal, Quebec FOR THE APPELLANT John H. Sims, Q.C. FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A‑193‑04 STYLE: TIBÉRIO MASSIGNANI v. THE MINISTER OF NATIONAL REVENUE PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 5, 2005 REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A. APPEARANCES: Pierre Lupien FOR THE APPELLANT Anne Poirier FOR THE RESPONDENT SOLICITORS OF RECORD: Montréal, Quebec FOR THE APPELLANT John H. Sims, Q.C. FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec