BETWEEN:
LE FONDS D'EMPRUNT COMMUNAUTAIRE
DE LA GASPÉSIE ET DES ÎLES
and
THE MINISTER OF NATIONAL REVENUE
Hearing held at Montréal, Quebec, on May 3, 2006.
Judgment delivered at Montréal, Québec, on May 4, 2006.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
Docket: A-356-04
Citation: 2006 FCA 164
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
LE FONDS D'EMPRUNT COMMUNAUTAIRE
DE LA GASPÉSIE ET DES ÎLES
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Mr. Justice Tardif (“judge”) of the Tax Court of Canada concluded that the work performed by Mr. Milligan for the appellant during the period in question did not meet the conditions of a genuine contract of employment. He was of the opinion there was no employer-employee relationship between the appellant and Mr. Milligan.
[2] The judge came to this conclusion after noting inconsistencies and contradictions in the evidence with respect to the Mr. Milligan’s job description, the number of hours worked, and the relatively higher remuneration reportedly paid to him, compared with the lower amounts paid to other persons for more important tasks. The judge also questioned the remuneration actually paid to Mr. Milligan in comparison with what the appellant claimed to have paid him. He also noted the lack of reliable records on these matters.
[3] At paragraphs 14 to 18 and 26 of his decision, the judge concluded that Mr. Milligan’s employment was essentially a sham made up for the benefit of the appellant so as to allow Mr. Milligan to eventually receive Employment Insurance benefits and to allow the appellant to obtain a grant from Emploi-Québec under a job creation program for disabled persons. Because Mr. Milligan’s hearing was impaired, he could qualify for this program, provided the program’s conditions were respected.
[4] In this case, the judge was faced with a problem of credibility. As he was required to do, on the basis of the testimony and documentary evidence, the judge made findings of fact free of any palpable and overriding errors. The appellant is asking us to review and set aside these conclusions. Having neither seen nor heard the witnesses, this Court is not inclined to review the judge’s assessment of the credibility of the testimony, nor do we have jurisdiction to do so.
[5] For these reasons, I would dismiss the appeal without costs in the circumstances.
“Gilles Létourneau”
“I concur.”
“Robert Décary J.A.”
“I concur.”
“J.D. Denis Pelletier J.A.”
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-356-04
APPEAL FROM A DECISION OF MR. JUSTICE ALAIN TARDIF OF THE TAX COURT OF CANADA DATED JUNE 8, 2004.
CITATION: LE FONDS D'EMPRUNT COMMUNAUTAIRE DE LA GASPÉSIE ET DES ÎLES v. THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montréal, Quebec
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
APPEARANCES:
|
New Richmond, Quebec
|
FOR THE APPELLANT
|
|
FOR THE RESPONDENT
|
SOLICITOR OF RECORD:
|
Deputy Attorney General ofr Canada |
FOR THE RESPONDENT
|