Federal Court of Appeal Decisions

Date: 20060313

Dockets: A-424-04

A-440-04

Citation: 2006 FCA 109

CORAM:       DESJARDINS J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

A-424-04

BETWEEN:

EDMOND ST-ONGE

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

A-440-04

BETWEEN:

HENRI ST-ONGE

Appellant

and

THE ATTORNEY GENERAL FOR CANADA

Respondent

Hearing held at Montréal, Quebec, on March 13, 2006.

Judgment delivered at Montréal, Quebec, on March 13, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                 LÉTOURNEAU J.A.

Date: 20060313

Dockets: A-424-04

A-440-04

Citation: 2006 FCA 109

CORAM:       DESJARDINS J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

A-424-04

BETWEEN:

EDMOND ST-ONGE

Appellant

and

THE ATTORNEY GENERAL FOR CANADA

Respondent

A-440-04

BETWEEN:

HENRI ST-ONGE

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on March 13, 2006.)

LÉTOURNEAU J.A.:

[1]               In appeals A-424-04 and A-440-04, this Court is hearing an appeal that questions the interpretation of paragraph 5(2)(b) of the Employment Insurance Act, S.C. 1996, c. 23, which states that insurable employment does not include the employment of a person by a corporation if the person controls more than 40% of the voting shares of the corporation.

[2]               As stated by this Court in Canada (Attorney General) v. Cloutier, [1987] 2 F.C. 222, at page 225, the reason for this disqualification from Employment Insurance benefits is based on the notion that the person who has a controlling influence in a corporation is not dealing at arm’s length with it. In addition, this rationale “only applies if the control in question is not in any way contradicted by the facts” ibid. This control may be contradicted by the facts when, as in this case, there is an allegation and evidence of a mock transaction or a sham: see Sexton v. The Minister of National Revenue and the Tax Court of Canada, A-723-90, May 10, 1991 (F.C.A.).

[3]               In both cases in which he was called on to render decisions, Mr. Justice Tardif of the Tax Court of Canada (judge) concluded that the employments of the appellants Henri St-Onge and Edmond St-Onge were not insurable for the periods at issue because each one of them controlled more than 40% of the voting shares of 9091-3005 Québec Inc. (Company), for which they worked.

[4]               The judge came to this conclusion because in his opinion, on the basis of the alleged presumptions and the evidence adduced, Jean-Charles Leblanc, who was said to hold 30% of the voting shares of the Company, thereby leaving the two St-Onge brothers with only 35% of the voting shares each, was nothing but a [translation] “shareholder of convenience to allow the St‑Onge brothers to present a legal structure such that they could hope to have their work deemed insurable when they could not have done so otherwise”. (See paragraph 28 of the decision.)

[5]               As the judge stated at paragraph 29 of the decision, this was an [translation] “arrangement whose ultimate goal was to render insurable a type of employment which the Federal Court had already decided in several decisions was not insurable”. According to the judge, [translation] “the structure established was a sham to camouflage what in fact was essentially the appellants’ company”. (See paragraph 44 of the decision.)

[6]               To reach this finding of fact, the judge considered that the appellants did not testify, did not have the so-called third director testify, and simply submitted documentary evidence concerning the allocation of the company’s shares among the three shareholders, that is, themselves and Jean-Claude Leblanc.

[7]               However, the respondent did have Mr. Leblanc testify. The judge noted his hesitations, as well as the contradictions with the previous statements made to the investigators. (See paragraph 14 of the decision.) He assessed Mr. Leblanc’s credibility about questions concerning his interest in the Company, his degree of participation in the Company, and even his basic knowledge of the Company. He concluded that Mr. Leblanc had not been kept informed of the Company’s business, took no interest in it and had in fact waived beforehand his right to vote. (See paragraphs 12 and 27 of the decision.)

[8]               We are of the opinion that all the evidence the judge had and the presumptions invoked by the respondent, which the appellants did not succeed in rebutting, allowed the judge to conclude as he did. This was not an arbitrary or unreasonable decision that would warrant, much less require, our intervention.

[9]               For these reasons, the appeals in both cases are dismissed, but with a single set of costs. However, the respondent will also be entitled to his disbursements in each of the two cases.

“Gilles Létourneau”

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKETS:                                                                A-424-04 and A-440-04

STYLE OF CAUSES:                                                EDMOND ST-ONGE v. ATTORNEY GENERAL OF CANADA (A-424-04)

HENRI ST-ONGE v. ATTORNEY GENERAL OF CANADA (A-440-04)

PLACE OF HEARING:                                            Montréal, Quebec

DATE OF HEARING:                                              March 13, 2006

REASONS FOR JUDGMENT BY:                         Desjardins J.A., Létourneau J.A., Noël J.A.

DELIVERED FROM THE BENCH BY:                Létourneau J.A.

APPEARANCES:

SOLICITORS OF RECORD: