Date: 19971120
Docket: A-41-97
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
IN THE MATTER OF THE Unemployment Insurance Act;
| AND IN THE MATTER OF a claim for benefits by Rosalia Corbo |
| AND IN THE MATTER OF an appeal to the Tax Court of Canada by the claimant Rosalia Corbo, from a determination of a question regarding insurable employment made by the Respondent on May 11, 1995 |
BETWEEN:
ROSALIA CORBO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at Toronto, Ontario, Thursday November 20, 1997
Judgment delivered from the Bench at Toronto, Ontario, Thursday November 20, 1997
REASONS FOR JUDGMENT BY: LÉTOURNEAU, J.A.
Date: 19971120
Docket: A-41-97
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
| IN THE MATTER OF THE Unemployment Insurance Act; |
| AND IN THE MATTER OF a claim for benefits by Rosalia Corbo |
| AND IN THE MATTER OF an appeal to the Tax Court of Canada by the claimant Rosalia Corbo, from a determination of a question regarding insurable employment made by the Respondent on May 11, 1995 |
BETWEEN:
ROSALIA CORBO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario,
Thursday, November 20, 1997)
[1] We have come to the conclusion that this application for judicial review ought to be granted on two grounds.
[2] First, there is no indication whatsoever in the decision of the learned Tax Court Judge that he proceeded to review the Minister's exercise of discretion in coming, under subparagraph 3(2)(c)(ii) of the Unemployment Insurance Act, to the determination that the parties would not have entered into a substantially similar contract service if they had been at arm's length.
[3] It is true that in the case of Ferme Emile Richard et Fils Inc. v. Ministère du Revenu national, et al., (1994) 178 N.R. 361, at p. 363 that this Court concluded that the applicant could not, in the circumstances of that case, rely upon a similar error committed by the Tax Court Judge as the failure of the learned judge to follow the process worked in favour of the applicant:
| [5] In the case at bar it is clear that the judge passed over the first stage and went straight into the second, forgetting that before deciding on the merits of the Minister's decision he should have determined whether it was legal. |
| [6] However, having said that the court does not feel that in the circumstances the applicant can rely on this error of law. Essentially, this error worked in his favour. Instead of first requiring the applicant to present evidence of wilful or arbitrary conduct by the Minister, evidence which is generally not easy to obtain, the Tax Court of Canada judge made a thorough review of the evidence and arrived at a definite conclusion that in his own opinion the applicant's employment should have been excepted. By deciding on the correctness rather than the legality of the Minister's decision, the judge clearly applied a test favourable to the applicant. |
[4] In the present instance, however, the situation is different. The Minister made his determination on the basis of a number of assumptions, some of which were erroneous and perhaps might have led him to a different conclusion. Counsel for the respondent forcefully argued before us that the errors were not sufficiently material to alter the result and that the Minister would have come to the same conclusion.
[5] In our view, this misses the point. There is, on appeal from the Minister's determination, a two stage process, the first one being the assessment of the legality of the Minister's determination. We believe that the appellant was entitled on her appeal to have the legality of the Minister's determination reviewed, especially in view of the fact that the Minister made his determination on the basis of a number of erroneous assumptions.
[6] In addition, contrary to the situation in the Richard case, the learned Tax Court Judge, as we shall see in greater details later, failed to make a thorough review of the evidence, and arrived at a conclusion based on some findings of fact that are not supported by the evidence and which appear to have been determinative for him.
[7] Second, it appears from the decision of the learned Tax Court judge, who embarked upon the second stage of the process, that he failed to consider whether the remaining facts which were proved at trial were sufficient in law to support the Minister's determination. Such failure is compounded by the fact that the learned judge lumped together erroneous facts and facts which admittedly were not in evidence to come to an erroneous conclusion which formed the basis of his eight line decision to dismiss the appeal before him as evidenced by the text of that decision:
| These appeals were heard on common evidence. Short reasons were given in Court for dismissing them, but in summary, the main point made by the Appellants, their Counsel or Agent was that the Payer - Buffalo Paving and General Contracting Co. Ltd. - paid a total about $2,000.00 per week to these two Appellants and Rosalia Corbo, wife of the President of the company to deliver advertising flyers door to door around the Toronto area. In addition to various other aspects of the testimony |
| and evidence presented which left considerable questions outstanding, that particular point is not accepted by the Court in the circumstances as I understand them. |
[8] It is agreed by the respondent, contrary to what the learned Judge found in his decision, that there was no evidence before him that Rosalia Corbo, who worked as Executive Secretary, ever delivered flyers and that there was also no evidence as to the salary paid to either Rosalia or Giuseppina Corbo by the payor in 1992. The only evidence filed for that year, which is relevant to this applicant as the Minister's determination applies to that year, shows a gross amount of $500.00 paid to the applicant by the payor instead of the $2000.00 alluded to by the learned Judge.
[9] It may be that in the end the Minister's determination should and will be the same. We do not know, but we cannot condone a process which fails to follow the proper process to which the applicant was entitled on appeal before the Tax Court Judge.1
[10] For these reasons, the application for judicial review should be allowed, the decision of the learned Tax Court Judge set aside and the matter remitted to the Tax Court for a new hearing before a different judge.
"Gilles Létourneau"
J.A.
Toronto, Ontario
November 20, 1997
FEDERAL COURT OF CANADA
Date: 19971120
Docket: A-41-97
BETWEEN:
ROSALIA CORBO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-41-97
STYLE OF CAUSE: ROSALIA CORBO
- and -
THE MINISTER OF NATIONAL REVENUE
DATE OF HEARING: NOVEMBER 20, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT: LÉTOURNEAU, J.A.
Delivered from the Bench at Toronto, Ontario
on Thursday November 20, 1997
APPEARANCES: Mr. J. Michael Mulroy
For the Applicant
Ms. Alexandra v. Brown
Mr. Arnold Bornstein
For the Respondent
SOLICITORS OF RECORD:
Mr. J. Michael Mulroy
Howard Levitt and Associates
Barristers and Solicitors
401 Bay Street, Suite 1500
Toronto, Ontario
M5H 2Y4
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
__________________
1 See Procurer General et Thibault, Montreal No. A-277-97, October 27, 1997 (F.C.A.)