Côté c. M.R.N.

Côté c. M.R.N. Court (s) Database Tax Court of Canada Judgments Date 2004-05-20 Neutral citation 2004 TCC 384 File numbers 2003-2515(EI) Judges and Taxing Officers Sylvio J. Savoie Subjects Employment Insurance Act Decision Content Docket: 2003-2515(EI) BETWEEN: MAURICE CÔTÉ, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. [OFFICIAL ENGLISH TRANSLATION] Appeal heard on February 24, 2004, at Montréal, Quebec Before: The Honourable Deputy Justice S. J. Savoie Appearances: Counsel for the Appellant: Pierre Lalonde Counsel for the Respondent: Anne Poirier JUDGMENT The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment. Signed at Grand-Barachois, New Brunswick, this 20th day of May 2004. "S. J. Savoie" Savoie D.J. Translation certified true on this 30th day of September 2004. Shulamit Day, Translator Citation: 2004TCC384 Date: 20040520 Docket: 2003-2515(EI) BETWEEN: MAURICE CÔTÉ, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. [OFFICIAL ENGLISH TRANSLATION] REASONS FOR JUDGMENT Savoie D.J. [1] This appeal was heard at Montréal, Quebec, on February 24, 2004. [2] The issue is to determine whether or not the transportation allowances, statutory holidays and northern allowances paid to the Appellant from November 7, 2001 to August 6, 2002, while employed by Compagnie Minière Québec Cartier, the Payor, were insurable earnings within the meaning of the Employment Insurance Act. [3] On April 23, 2003, the Minister of National Revenue (the "Minister") informed the Appellant of his decision that the allowances paid to the Appellant by the Payor, totalling $4,759.29, were insurable. The Appellant did not appeal the Minister's decision regarding the allowances paid during the period at issue. In his Notice of Appeal, dated July 7, 2003, the Appellant stated that [translation] "The file is aimed at determining the wage insurance and the relevant number of insurable hours for the period from November 7, 2001 to August 6, 2003." [4] Counsel for the Minister claims that this Court does not have jurisdiction, since the issue has never been debated and, based on Blondin v. Canada (Minister of Employment and Immigration) [1988] F.C.J. No. 239, claims that subsection 35(2) of the Employment Insurance Regulations reduces the Appellant's average weekly insurable earnings by the amount of the payments received from the Payor to cover the difference between his [worker's] compensation payments and regular wages. However, this is not the case here. What the Appellant received from the Payor instead represents transportation allowances, statutory holidays and northern allowances. [5] This Court is of the opinion that the Appellant accurately defined the issue in his Notice of Appeal and deems that it must rule on the insurability of the amounts paid him by the Sun Life insurance company during the period at issue. [6] In making his decision, the Minister relied on the following presumptions of fact: [TRANSLATION] (a) The Payor operated a mining company in the municipality of Fermont; (admitted) (b) The Appellant has worked for the Payor since 1975; (admitted) (c) The Appellant worked as an electrician; (admitted) (d) The Appellant was subject to a collective agreement; (admitted) (e) The Appellant worked for the Payor 40 hours per week, from 8:00 a.m. to 4:00 p.m., Monday to Friday; (no knowledge) (f) The Appellant received an hourly remuneration of $26.11, plus a monthly northern allowance of $225 and a weekly travel allowance ($615 and then $625); (admitted) (g) The appellant also benefited from a pension plan through the Payor; (admitted) (h) Due to health problems, the Appellant ceased working for the Payor on November 7, 2001; (admitted) (i) From that date to August 6, 2002, the Appellant received 39 weeks of sick leave, provided for in the collective agreement; he received his health insurance benefits, $475 per week, directly from the Sun Life insurance company; (admitted) (j) During this 39-week period, the Payor continued to pay the Appellant a monthly northern allowance and weekly travel allowance, as well as the statutory holidays set forth in the collective agreement; (admitted) (k) During this 39-week period, the Appellant was covered by the Payor's medical insurance and the Payor continued to contribute to the Appellant's pension plan; (admitted) (l) Following these 39 weeks, as he was not able to return to work, he received employment insurance benefits for 12 weeks; (admitted) (m) During the period in which the Appellant was receiving employment insurance benefits, the Payor stopped paying the Appellant for statutory holidays but continued to pay his northern allowance; (no knowledge) (n) During the 39-week period, the Payor paid the Appellant for eight statutory holidays; (admitted) (o) During this 39-week period, the Payor paid the Appellant a total of $4,759.29; (admitted) (p) The northern allowance, the payment of statutory holidays and the transportation allowance are included in the Appellant's insurable earnings for the period at issue. (admitted) [7] For the purposes of this review, it is appropriate to conclude that subparagraphs (e) and (m), of which the Appellant declares no knowledge, were proven at the hearing. [8] The Minister's position relies on the fact that during the period at issue, the Payor only paid the Worker the amounts indicated in the table in paragraph 7 of the Reply to the Notice of Appeal, based on paragraph 5(1)(a) of the Employment Insurance Act, section 2 of the Insurable Earnings and Collection of Premiums Regulations and on paragraph 10.1 3(b) of the Employment Insurance Regulations as applicable to the period at issue. Employment Insurance Act 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. Insurable Earnings and Collection of Premiums Regulations 2(2) . . . the total amount of earnings that an insured person has from insurable employment includes . . . except for any unpaid amount that is in respect of overtime or that would have been paid by reason of termination of the employment. Employment Insurance Regulations 10.1(3) Where an insured person is remunerated by the employer for a non-working day and . . . (b) does not work on that day, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked on that day. [9] With respect to the remainder, the Minister is of the opinion that, given the Appellant's incapacity as of November 7, 2001, the beginning of the period at issue, he received his health insurance benefits of $475 per week directly from the Sun Life insurance company, for 39 weeks, that is, until August 6, 2002, which represents the entire period at issue. [10] According to the table in paragraph 7 of the Reply to the Notice of Appeal, the Appellant received $4,759.29 from the Payor, which represents the transportation allowances, statutory holidays and northern allowances. The Minister emphasizes that the health insurance benefits were not included since they were paid directly by the Sun Life company. [11] On January 23, 2003, the Appellant asked the Minister to make a decision on the issue of whether the transportation allowances, statutory holidays and northern allowances received between November 7, 2001 and August 6, 2002, when working for Compagnie Minière Québec Cartier, the Payor, were part of the insurable earnings within the meaning of the Employment Insurance Act. [12] The Minister dealt with this issue and on April 23, 2003, he informed the Appellant of his decision that these amounts were insurable. The Appellant appealed this decision on July 7, 2003. At that time, he raised a question that had not previously been asked. Thus, in paragraph 4 of his Notice of Appeal, he [TRANSLATION] "challenges (the decision of the Minister) as incorrect in fact and in law, since the effective work period retained should have been the one preceding the period of wage insurance due to illness." [13] Counsel for the Minister questioned the jurisdiction of this Court in addressing the question brought forward by the Appellant in his Notice of Appeal. This brings up the rule established in subsections 103(1) and (3) of the Employment Insurance Act that defines the role of this Court with respect to ruling on an appeal of an individual affected by a decision made under sections 91 or 92 of this Act. [14] I reproduce here the relevant sections of this Act: 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). (2) The Commission may request a ruling at any time, but a request by any other person must be made before the June 30 following the year to which the question relates. (3) The authorized officer shall make the ruling within a reasonable time after receiving the request. 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. 93.(2) An appeal shall be addressed to the Assistant Director of Appeals in a Tax Services Office of the Canada Customs and Revenue Agency and delivered or mailed to that office. (3) The Minister shall decide the appeal within a reasonable time after receiving it and shall notify the affected persons of the decision. 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. . . . (3) On an appeal, the Tax Court of Canada (a) may vacate, confirm or vary a decision on an appeal under section 91 or an assessment that is the subject of an appeal under section 92; (b) in the case of an appeal under section 92, may refer the matter back to the Minister for reconsideration and reassessment; [15] In the opinion of this Court, the objection of Counsel for the Minister is well founded. This Court has no other option but to vacate, confirm or vary a decision of the Minister made under section 91 or 92 of the Act. In this case, the decision was not made under section 92; therefore, the referral to the Minister provided for in that section is not applicable. [16] The Appellant asked this Court to grant his request, in other words, to make a decision that would determine the insurability of the amounts paid to him by the insurer Sun Life. [17] In support of his argument, the Appellant cited the terms of the contract between the Payor and Sun Life. He also relied on the terms of the insurance plan provided to employees, as provided for by the collective agreement, an excerpt of which was filed at the hearing as Exhibit A-1. [18] The Appellant stated that, in order to settle this dispute, this Court must be guided by the provisions outlined by the Federal Court of Appeal in Université Laval v. Canada (Minister of National Revenue - M.N.R.), 2002 FCA 171 and Canada (Attorney General) v. National Bank of Canada, 2003 FCA 242. [19] Létourneau J., who rendered the decision in National Bank of Canada, supra, stated as follows: [3] In our view, the decision of this Court in Université Laval v. Canada (Minister of National Revenue), 2002 FCA 171, dated May 3, 2002, is applicable in this case, and accordingly the application for judicial review must be allowed. In that case, this Court enunciated the following principles: (1) The expression "in respect of" such employment, which qualifies earnings paid by the employer and which is found in subsection 2(1) of the Regulations is particularly broad; (2) There can be insurable earnings within the meaning of the Regulations even where the employee has not performed any services; (3) Benefits paid by an employer under a wage loss indemnity plan constitute insurable earnings within the meaning of the Act and the Regulations, while benefits paid by a third party insurer are excluded from the definition; (4) The French word "verser", which was translated in English by "pay" ("payer") is more general than the French word "payer" to which the Supreme Court of Canada gave a broad meaning in Canadian Pacific Limited v. A.G. Canada, [1986] 1 S.C.R 678, at page 687; and (5) Wage loss benefits are paid by an employer under a contract of employment where the following indicia exist, which are not necessarily exhaustive: the wage loss insurance plan is entirely paid for by the employer, the employment relationship continues to exist during the disability, the benefits payable are increased if there is a salary increase during the disability period, the benefits are paid by the employer during normal pay periods for the first 52 weeks of disability and thereafter by the insurer and lastly, the employer determines eligibility for the benefits and signs the cheques. [20] Létourneau J. added that in his opinion, the presence of each and every one of these indicia is not required to justify a conclusion that compensation is paid by the employer under an employment contract. [21] In my opinion, the argument of Counsel for the Appellant in this case does not justify a conclusion similar to the ruling by Létourneau J. in the previously mentioned case, in which he determined that a similar type of remuneration would constitute insurable earnings. The facts in this case do not justify such a conclusion. Of the indicia listed by the Federal Court of Appeal, in National Bank, supra, none appear in the case at issue except, perhaps, those specifying that the employment relationship continues to exist during the period of disability and that the benefits payable were increased if there were a salary increase during the disability period. [22] Furthermore, the excerpt of the copy of the contract between Sun Life and the Payor, as well as the collective agreement between the Payor and his unionized employees (Exhibit A-1) are incomplete and cannot support the Appellant's claims. [23] The Appellant therefore has not successfully demonstrated the appropriateness of this Court's intervention. It must be added that the Appellant admitted all of the Minister's relevant presumptions. [24] As a result of the preceding, this Court is obligated to confirm the decision of the Minister. [25] Consequently, the appeal is dismissed and the decision of the Minister is confirmed. Signed at Grand-Barachois, New Brunswick, this 20th day of May 2004. "S. J. Savoie" Savoie D.J. Translation certified true on this 30th day of September 2004. Shulamit Day, Translator