Date: 19971017
Docket: 95-2452-UI
BETWEEN:
JANICE VOISINE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Prévost, D.J.T.C.C.
[1] This appeal was heard at Rivière-du-Loup, Quebec, on September 16 and 17, 1997.
[2] It is an appeal from a decision by the Minister of National Revenue ("the Minister") dated October 20, 1995, that the appellant's employment with the payers, R. Ouellet and D. Ouellet, owners of Paarty's Leather Enr., from October 5, 1991 to August 1, 1992 was not insurable for the following reasons: [TRANSLATION] "This was employment in which the employee and employer were not dealing with each other at arm's length and the employment was not held under a contract of service".
[3] Paragraphs 5 and 6 of the Reply to the Notice of Appeal read as follows:
[TRANSLATION]
5. In arriving at his decision the respondent Minister of National Revenue relied inter alia on the following facts:
(a) the payer had been operating a business selling leather clothing since 1990;
(b) the appellant is the spouse of Richard Ouellet and sister-in-law of Denis Ouellet;
(c) the appellant claimed she worked for the payer for 27 weeks during the period at issue;
(d) the appellant claimed she provided services to the payer at least 35 hours a week;
(e) she claimed she worked seven days a week, days or evenings;
(f) during the period at issue the appellant was already operating a business full time;
(g) the appellant and the payer entered into an arrangement to enable the appellant to receive unemployment insurance benefits.
6. At this stage of the proceedings, the respondent argues that:
(a) the appellant did not hold employment with the payer during the period at issue.
[4] At the start of the hearing counsel for the appellant admitted subparagraphs (a) to (d) of paragraph 5 of the Reply to the Notice of Appeal but denied the other three.
Hearing
Appellant's evidence
According to Richard Ouellet
[5] He was co-owner of the Paarty's Leather Enr. shop, a business that began its activities in 1987 and that sold leather clothing at ten outlets, mainly in the Maritimes.
[6] This business also had two teams of salespersons on the road.
[7] The peak period was from October to April.
[8] It was his sister-in-law Noëlla Pelletier who was responsible for accounting at the shop and it was she who prepared the appellant's record of employment when she was laid off on August 1, 1992.
[9] The payers’ head office was at Rivière-du-Loup, but Richard Ouellet lived with his wife, the appellant, in Notre-Dame-du-Lac in a building where the payers’ warehouse was also located.
[10] It was in this warehouse that the appellant worked, primarily coding mark-up prices and selling prices and labelling products offered for sale by the business.
[11] Someone with experience was needed for this and his wife had the requisite skills in the sales field.
[12] She prepared advertising inserts (Exhibit A-2) to promote sales for the business, which amounted to about a million and a half dollars a year in good years.
[13] She was fully bilingual and this was very important in doing sales work in the Maritimes, among other places.
[14] She also made a very good job of translating commercial documents for the shop and this was quite useful as Richard Ouellet did not speak much English himself.
[15] His brother Denis was in the clothing business and it was he who supplied their leather shop.
[16] At the warehouse the appellant worked 35 hours a week, Monday to Saturday, and was paid $400.
[17] In her last four weeks of work she went to replace a manager on vacation at the Edmunston shop and there she only earned $350 for a 40-hour week, which was a shop manager’s salary.
[18] At Cabano the business had premises in which it held warehouse sales from time to time.
[19] In addition to working for the payers, the appellant also did hairdressing.
[20] She leased space in a hairdressing salon for this purpose.
[21] However, she only did hairdressing by appointment and when she had time available.
[22] At one point Richard Ouellet had himself placed a tanning bed in the salon.
[23] The appellant and he together paid $150 a month rent at the salon but there was no written lease.
[24] They had three children at home at the time but they were looked after by a full-time day care provider.
[25] Richard Ouellet himself controlled and supervised his wife's work at the warehouse, where she was the payers’ only employee.
[26] However, at Cabano there were two girls who worked for the leather shop.
[27] He and his brother Denis provided the work tools to the appellant, who was paid by cheque every week as were the other employees.
[28] As of March 1992 the appellant ceased working at the warehouse as she wanted to start up a bed and breakfast, but this project ultimately did not come to fruition.
[29] It was the following July that she went to work for the payers at Edmunston.
[30] The shop in question no longer exists, but in good times it had up to 28 or 30 employees.
[31] His wife was not in court since she was ill as attested by a medical certificate (Exhibit A-3) dated September 8, 1997 and reading as follows: [TRANSLATION] "Medical leave, 14 days, depressive-gastritis . . . syndrome".
[32] Counsel for the appellant did not ask for a postponement, however, and the hearing continued.
Also according to Richard Ouellet
[33] If his wife had not been there they would have had to hire another bilingual person and there are not many in Notre-Dame-du-Lac.
[34] Cabano and Notre-Dame-du-Lac are perhaps seven or eight kilometres apart.
[35] His wife never worked in Cabano, where they had changed location five, six or seven times in three years.
[36] They signed no lease there and left when they wanted to do so.
[37] At Cabano they operated a liquidation centre but it was not a [TRANSLATION] "spearhead" of their business operations.
[38] Nancy St-Pierre and Sylvie Morin worked together a few times in Cabano.
[39] Richard Ouellet handled marketing and personnel.
[40] His brother and he also did sales work in Ontario and Newfoundland.
[41] 1987, 1988 and 1989 were very good years but business began dropping off after that until operations were closed down, though there was no bankruptcy.
[42] It was Richard Ouellet who set his wife's salary for her work at the warehouse after consulting the local Manpower Centre.
[43] Before hiring the appellant he had done some of her work, but for lack of time he could not maintain proper control of inventory in the warehouse and in the shops.
[44] There were thefts which cost a lot, about $40,000, and closer control became necessary.
[45] There were even thefts by employees.
[46] However, there were never any thefts at the Notre-Dame-du-Lac warehouse.
[47] The appellant called the shops regularly to control inventory.
[48] Before his wife came on the scene, [TRANSLATION] "labelling was haphazard", but when she took charge of operations the situation improved considerably.
[49] The appellant had previously had her own hairdressing salon, but at some point she closed it and did hairdressing only at Marie-France Bossé's salon.
[50] Richard Ouellet did not do much advertising as such for his tanning bed, except occasionally in the local newspaper.
[51] The payers had several bank accounts, that is, wherever they had branches.
[52] When asked to look at the payroll journals for the Cabano location (Exhibit I-1), in which the appellant's name appeared for 1991 and 1992, he first said that he did not have much of a grounding in accounting but added that the book titled "Cabano" was the one used for the payers' operations in Quebec.
[53] When asked to compare the payroll journals (Exhibit I-1) with the record of employment (Exhibit A-1), he had to admit that according to the Cabano payroll journals the appellant put in 13 weeks in 1991 and nine weeks in 1992 and according to the Edmunston payroll journal, four weeks in 1992, for a total of 26 weeks, whereas the record of employment indicated 27.
[54] It was the first time he had realized this and he could not really explain the difference.
[55] At some point the investigation and control officer Alain Pelletier tried to meet with him and he asked him many questions before doing so.
[56] However, Richard Ouellet did not know why he was being investigated.
[57] When the appellant went to the "unemployment" office, Richard Ouellet wanted to answer the questions in her place, but Alain Pelletier refused.
[58] Alain Pelletier then sent him a registered letter asking him to go to his office at a given time, but he refused to sign for it so that the letter was in fact not answered.
[59] At one point Alain Pelletier went to Richard Ouellet’s home at lunch time while he was eating with his three children.
[60] He told Alain Pelletier he was prepared to cooperate but did not like his methods.
[61] Richard Ouellet made no statement to him and was not asked to give him any documents at that time, except perhaps those requested in the registered letter which he had refused to accept.
[62] He did not at that time suggest that Alain Pelletier return an hour later, after the meal, as, he recalled, his wife was exhausted after her earlier interview with this investigator.
According to Noëlla Pelletier
[63] She handled the payroll and that is why she signed the record of employment (Exhibit A-1).
[64] She also was responsible for paying the business’s bills.
[65] The reason Richard Ouellet hired the appellant was that she spoke English well.
[66] The thefts in the premises of the business caused a lot of problems and they absolutely had to have someone to control inventory.
[67] When the appellant stopped working for the payers in late February 1992 Noëlla Pelletier was not asked to issue her a record of employment because she would probably be going back to work soon afterwards.
[68] The appellant did in fact subsequently do replacement duties in Edmunston but after that there was no more work for her and so Noëlla Pelletier issued to her her record of employment on August 28, 1992 (Exhibit A-1), not on August 28, 1991, as she wrote on that document by mistake.
[69] At $400 a week the appellant's salary for her work at the warehouse was quite reasonable, and in Edmunston she received the salary of the manager she was replacing.
[70] At the warehouse, which was in the same building as her private home, she did label the payers' leather clothing.
[71] She also went to inspect the Cabano retail outlet, where the payers were selling at a discount.
[72] In the two "Cabano" payroll journals, Noëlla Pelletier had indeed recorded the appellant as working 26 weeks and her writing 27 was undoubtedly a mistake on her part.
[73] She never met with the investigator Alain Pelletier.
[74] She had known the appellant for 10 years as she was Richard Ouellet's sister-in-law, having married his brother Denis.
[75] Noëlla Pelletier was well aware that the appellant was still doing hairdressing for pay during the period at issue and was doing it at Marie-France Bossé's salon, as from time to time she herself went there in the afternoon to have her hair done.
Respondent's evidence
According to Alain Pelletier
[76] The case was given to him for investigation as the result of an information.
[77] He first checked whether the appellant was in fact receiving benefits and, as she was, he began his investigation in December 1993.
[78] He met with the appellant at the Canada Employment Centre, where she went at his request on December 20, 1993.
[79] She came into his office alone but could have brought someone with her.
[80] He questioned her after giving her the usual warning, and she began by signing below the warning to indicate that it had in fact been read to her.
[81] He made a draft of her statement and then wrote it up in fair copy; he read it to her and she signed it (Exhibit I-2). It said (at pp. 2, 3 and 4):
[TRANSLATION]
I worked from Monday to Friday . . . I put in 35 to 60 hours a week and always received the same salary whatever the number of hours worked. Between 05/10/91 and 01/08/92 I did not work every week . . . At the start of my employment . . . I was in the business’s warehouse in Cabano located at the corner of Rue Commerciale and Rue Pelletier . . . There was no employee other than myself: I was alone in the warehouse. My duties consisted of checking whether orders for coats from suppliers were complete and intact, putting code and price labels on coats, taking care of the delivery of coats to the shops in Edmunston and Bathurst and ensuring that the salespersons on the road had all their inventory for the other shops which bought from us wholesale or retail. I was laid off in March 1992 because there was not enough work . . . I did not apply for unemployment insurance benefits at that time because I was trying to start up a bed and breakfast business . . . From September 1992 to September 1993 I did not work and I received unemployment insurance benefits . . . I worked in Edmunston as a hairdresser from July 1984 to April 1986, that is, until the birth of my daughter Émilie. I later did hairdressing only for the people in my immediate family and Ms. Bélanger, who lived in the Résidence Notre-Dame. Between March and July 1992 . . . probably early June 1992, I also worked three and a half weeks in the Imagine Coiffure hairdressing salon in Notre-Dame-du-Lac, which was owned by Marie-France Bossé. I was never a partner with Marie-France Bossé. From August 1, 1992 to this date I have never operated a hairdressing salon.
[82] Alain Pelletier also met with Marie-France Bossé on February 21, 1994 and received from her a "Statutory Declaration to the Commission".
[83] At this stage of the hearing counsel for the appellant objected and counsel for the respondent asked that the hearing be suspended to allow Marie-France Bossé to testify.
According to her testimony
[84] She has been a hairdresser for seven years and works in her father's house.
[85] She had indeed leased a space to the appellant, who had brought her own chair.
[86] Before that, she had worked as a trainee in the appellant's hairdressing salon after finishing her courses.
[87] The reason she leased a space to the appellant was that she did not want to be alone when she was setting up her own salon.
[88] This space was leased for about a year and a half.
[89] Alain Pelletier did go to meet with her at her home, strongly urging her to cooperate with the investigation.
[90] He wanted to know how many hours a week the appellant did hairdressing in her salon.
[91] She did sign for him a statutory declaration (Exhibit I-3) in which it is stated (at p. 1):
[TRANSLATION]
. . . From March 12, 1991 to September 1, 1992 Janice Voisine leased a space in my salon . . . for the last six months Janice Voisine also had a solar bed for tanning . . . Janice Voisine worked in my salon full time from March 12, 1991 to September 1, 1992 . . . She worked from 1:00 p.m. to 5:30 p.m. on Monday, from 9:00 a.m. to 5:30 p.m. on Wednesday, from 9:00 a.m. to 9:00 p.m. on Thursday, from 9:00 a.m. to 1:30 p.m. on Friday and from 9:00 a.m. to noon on Saturday. When she left my salon on September 1, 1992 she opened another salon . . . at 400 Route 185 in Notre-Dame-du-Lac . . . On or about December 20, 1993 she telephoned me following her meeting with the officer . . . from the Canada Employment Centre and asked me to make false statements to the unemployment investigators; she wanted me to say that she had worked with me for a week and a half, not a year and a half . . .
[92] The tanning bed may have belonged to Richard Ouellet rather than the appellant, but she did not know.
According to Nancy St-Pierre
[93] From late August 1991 to January 1992 she worked for the payers in Cabano, where, in the same building, they had a shop in the front and a warehouse in the back.
[94] Until December 1991 she was the business’s only employee in Cabano, but she was then joined by Sylvie Morin.
Also according to Alain Pelletier on resuming his testimony
[95] At his meeting with Marie-France Bossé, he told her she had to speak the truth but it was clear she was afraid of the appellant.
[96] He met with the appellant again on February 25, 1994 and again gave her the usual warning, but she indicated at that time that she wished to consult a lawyer.
[97] The lawyer called Alain Pelletier, who also called the lawyer back, but in the end they never were able to speak to each other.
[98] Alain Pelletier then sent Richard Ouellet a request for information and went to meet with him in May 1994.
[99] He told Richard Ouellet he had sent him a request for documents and Richard Ouellet then invited him into the basement of his home where the said Richard Ouellet hurled uninterrupted verbal abuse at him.
[100] Richard Ouellet told him at that time that [TRANSLATION] "the file we have put together on you is almost complete and the matter will take its course".
[101] He then sent a new request for documents to Denis Ouellet, who complied with that request.
[102] Alain Pelletier then sent the case to Revenue Canada for a decision (Exhibit A-4).
[103] In the documents (Exhibit I-4) which he examined he saw many questionable items, such as:
(i) there were no paycheque stubs for the appellant in October 1991;
(ii) there were stubs in November 1991 but the cheques did not go through the bank;
(iii) there were no cheque stubs in the appellant's name in December 1991, only pay stubs;
(iv) in January 1992 there were also no cheque stubs, but again only pay stubs;
(v) there were paycheques made out in the appellant's name that were cashed long after their date of issue.
[104] At this stage of the hearing Marie-France Bossé was recalled to the witness stand and again cross-examined by counsel for the appellant.
[105] According to her testimony, she did not really tell Alain Pelletier she was afraid of the appellant, but she said she found such investigations intimidating.
Again according to Alain Pelletier
[106] Denis Ouellet did tell him that the appellant was Richard Ouellet's wife or spouse.
[107] The paycheques for November 2, 9, 16, 23 and 30, 1991 were not cashed until February 5, 1992.
[108] He could not say from the documents he had on hand whether the paycheques made out to the appellant were cashed at the local caisse populaire.
[109] In her statutory declaration (Exhibit I-6) Sylvie Morin did say (at p. 2) that the payers' warehouse was located in Cabano and she made no mention at all of one of the warehouses; she also said in her declaration that there was no employee besides Nancy St-Pierre and herself working at the Cabano warehouse.
[110] In his report of December 8, 1994 (Exhibit A-7), following his telephone conversation with Nancy St-Pierre, he wrote that according to her Janice Voisine had never worked at the Cabano warehouse-shop because she had a hairdressing salon in Notre-Dame-du-Lac.
[111] In his report of September 28, 1994 (Exhibit A-8) following his telephone conversation with Marcellin Dubé, he wrote that Marcellin Dubé had said he had never seen Janice Voisine working at that warehouse and that during the period in which Denis and Richard Ouellet had leased the premises Janice Voisine had a hairdressing salon in Notre-Dame-du-Lac.
[112] In the 1991 and 1992 annual guide for various towns in the area (Exhibit A-9), he had seen an entry for "Salon de coiffure Les Ciseaux d'Émilie, Commerciale Notre-Dame-du-Lac, 899-2889", and that was where the appellant did hairdressing for her customers.
Appellant's rebuttal evidence
According to Noëlla Pelletier
[113] It was she who had written the word "Cabano" on the 1991 and 1992 payroll journals.
[114] As the payers did business in Quebec and New Brunswick, separate payroll journals had to be kept as deductions were not the same from one province to another.
[115] The reason she put the appellant in the Cabano book was so that there would be just one book for Quebec.
[116] For October 1991 the appellant was paid her salary by cheque or in cash.
[117] She recalled that four cheques might have been drawn on the account at the local caisse populaire.
[118] She also recalled asking the appellant to wait to cash her paycheques so as to avoid bank charges when there were not sufficient funds available to cover the cheques.
[119] When the appellant was hired Noëlla Pelletier had mentioned to her that this might happen from time to time.
According to Denis Ouellet
[120] When the appellant was hired the business needed someone who spoke English and he fully agreed that she should join the 30 or so employees on the payroll at that time.
[121] She worked in the Notre-Dame-du-Lac warehouse, which was located in premises in the same building as that in which she lived with Richard Ouellet.
[122] The apartment used as a warehouse had a total of five rooms.
[123] The business had no other warehouse.
[124] They spoke of warehouse sales at Cabano only because that expression was fashionable.
[125] He did purchasing in Montréal and the inventory was then sent to Notre-Dame-du-Lac where the appellant, among others, relabelled it.
[126] The appellant was very familiar with the business as she associated with the people involved in it.
[127] She was in fact paid, though she sometimes had to wait to cash her paycheques.
Argument
According to counsel for the appellant
[128] Under s. 3(2)(c) of the Unemployment Insurance Act the Minister has a discretion he may exercise but he must do so judicially.
[129] In the instant case he was simply mistaken as to the location of the payers' warehouse.
[130] Alain Pelletier did not question Richard Ouellet even though he could have been of further assistance.
[131] He should have questioned Noëlla Pelletier, who would have been in a better position to answer his questions.
[132] If the Minister had known of the actual warehouse he would certainly have decided otherwise.
[133] There were paycheques for 21 weeks, and though there was no proof that cheques were issued and cashed for the other five weeks, Noëlla Pelletier did say that the appellant was paid for all the weeks she worked.
[134] The Court should intervene as the evidence presented de novo clearly shows that the employment was insurable.
[135] The thefts from the payers' business caused them considerable financial problems and tighter control was absolutely necessary.
[136] The payers wanted a bilingual person for their operations, especially outside Quebec, and the appellant did meet their requirements in this regard.
[137] This trial had not helped his client's health.
[138] It is becoming more and more frequent for employees to have to wait to cash their paycheques.
[139] For the purposes of s. 3(1)(a) of the Unemployment Insurance Act the appellant was supervised by her husband, who lived with her on the floor below the warehouse in question.
[140] She was fully integrated into the business as control of inventory in the shops and warehouse was essential to the effectiveness of operations.
According to counsel for the respondent
[141] Although Denis Ouellet said the warehouse was located at Notre-Dame-du-Lac, the appellant herself, in her statutory declaration, did say that initially (before she went to Edmunston as a replacement) she was supervisor at the business’s warehouse in Cabano.
[142] Moreover, in her interview with the investigator Pelletier on December 20, 1993, there was never any mention of a warehouse in Notre-Dame-du-Lac.
[143] The appellant had the burden of proof and yet presented no documents on the existence of this alleged warehouse in Notre-Dame-du-Lac.
[144] She produced no lease or shipping labels for goods delivered to this location or sent from the five-room apartment allegedly used as a warehouse.
[145] The record of employment did not correspond with the payroll journals so far as the number of weeks allegedly worked was concerned.
[146] The paycheques were cashed late, some were missing, and if Noëlla St-Pierre had been questioned by the investigator she could not have told him anything more than she told the Court.
[147] In Attorney General of Canada v. Jean-Claude Rousselle et al. (A-1244-88), Hugessen J.A. wrote for the Federal Court of Appeal (at p. 2):
I do not think it is an exaggeration to say, in light of these facts, that if the respondents did hold employment this was clearly "convenience" employment, the sole purpose of which was to enable them to qualify for unemployment insurance benefits. These circumstances certainly do not necessarily prevent the employment from being insurable, but they imposed on the Tax Court of Canada a duty to look at the contracts in question with particular care; it is apparent that the motivation of the respondents was the desire to take advantage of the provisions of social legislation rather than to participate in the ordinary operation of the economic forces of the market place.
According to counsel for the appellant in reply
[148] If the Cabano shop closed in January 1992, why was the appellant paid the following February when she could no longer have been working at that location?
[149] Section 3(2)(c) of the Unemployment Insurance Act was not specifically pleaded by counsel for the respondent.
[150] If there had been an arrangement, the appellant only needed 20 weeks to qualify for unemployment insurance benefits, but as she made no claim before September 7, 1992, this clearly indicates that it was not mere convenience employment within the meaning of Rousselle.
[151] The employment was genuine and if the appellant had not been there someone else would have been needed to replace her.
Analysis
[152] The appellant had the burden of proof and did not discharge it.
[153] It was admitted that she was Richard Ouellet's spouse and Denis Ouellet's sister-in-law.
[154] Under s. 3(2)(c) of the Unemployment Insurance Act, she had to show that the Minister had made an improper use of his discretion by not including the employment in insurable employment, but she did not do so.
[155] There is no doubt the payers operated a business, but if the appellant worked there her work certainly was not insurable except for her last four weeks in Edmunston, New Brunswick.
[156] The evidence that the appellant was perfectly bilingual was not contradicted, but that is not what the Court has to determine in reaching its conclusion herein.
[157] The evidence as a whole was that the appellant worked as a self-employed hairdresser during the first part of the period at issue and Marie-France Bossé's statutory declaration (Exhibit I-3) indicated that the appellant worked in her salon five days a week several hours a day, and not merely when she had time available.
[158] The question of the tanning bed placed on Marie-France Bossé's premises by the appellant and/or her husband is of no significance for the outcome of the instant case.
[159] Given the hours she put in at her hairdressing salon, the appellant certainly needed a full-time day care provider for her children at home.
[160] Richard Ouellet may say that the appellant was paid by cheque every week, like the other employees of the business, but he did not prove this, as five pays were not established with any certainty and there were considerable delays in cashing other paycheques of the appellant’s.
[161] He may also say that he supervised his wife's work, but the Court does not believe there was actual work done by her for the payers at the Notre-Dame-du-Lac warehouse, which certainly never existed, nor indeed at the Cabano warehouse, where she was never seen.
[162] There was no documentary evidence of the existence of a warehouse at Notre-Dame-du-Lac.
[163] The appellant's work at Edmunston seems to have been quite genuine; no one asserted that it was not and it will be taken into account in disposing of this case.
[164] Richard Ouellet and Noëlla St-Pierre may try to explain the use of payroll journals titled "Cabano" for the appellant's alleged pays, but on the evidence as a whole this does not stand up to a close scrutiny of the facts.
[165] Neither he nor she could provide a valid explanation as to why the record of employment indicated 27 weeks when in the payers' own books there were only said to be 22 in Quebec and four in New Brunswick.
[166] It is certain that Richard Ouellet did not cooperate at all with Alain Pelletier's investigation and that clearly shows how little regard he had for the Unemployment Insurance Act at that time.
[167] No inference can be drawn from the fact that the appellant did not ask for a record of employment in March 1992 following her first alleged lay-off.
[168] The evidence was uncontradicted that the appellant did receive a branch manager’s salary in Edmunston.
[169] Richard Ouellet said that his wife had never worked at Cabano, whereas Noëlla St-Pierre said she went there to do inspections.
[170] This is a flagrant contradiction in the appellant's evidence.
[171] The investigation officer, Alain Pelletier, did excellent work on this case and, given the facts he placed before the Minister, the Minister could have reached no other conclusion concerning the first 22 weeks of employment.
[172] It is impossible for the appellant to have worked 35 to 60 hours for the payers in Quebec while serving her customers at her hairdressing salon.
[173] In her declaration (Exhibit I-2) she did say she still received the same salary whether she worked 35 or 60 hours for the payers, and (assuming the appellant actually did work for the business in question in Quebec) an unrelated person certainly would not have done that.
[174] In that declaration she also said very clearly that at the start of her employment (except for her time in Edmunston) she was at the business’s warehouse in Cabano, while the payers said the opposite.
[175] That was another contradiction in the appellant's evidence.
[176] The appellant's telephone call to Marie-France Bossé after meeting with Alain Pelletier clearly indicates how little regard she also apparently had for the Unemployment Insurance Act.
[177] Denis Ouellet cooperated with Alain Pelletier's investigation by giving him the documents (Exhibit I-4), and this is to his credit.
[178] There was no real contradiction between the testimony of Marie-France Bossé and that of Alain Pelletier as to the fear which the former may have had of becoming involved in the investigation.
[179] The investigator Pelletier was right in finding that there were some very strange things in the documentation (Exhibit I-4) given to him by Denis Ouellet.
[180] Exhibits A-6, A-7 and A-8 are of no help to the appellant's case.
[181] In her declaration (Exhibit I-3) Marie-France Bossé did say that the appellant's former hairdressing salon was called "Les Ciseaux d'Émilie".
[182] The rebuttal evidence was not of any assistance to the appellant and even left the Court confused as to how a business of that size could have a warehouse in a five-room residential apartment.
[183] The Minister had discretion and did in fact exercise it with regard to the weeks allegedly worked in Quebec.
[184] The reason Richard Ouellet was not questioned by Alain Pelletier was quite simply that he did not want to cooperate with the investigation.
[185] It is clear the employment was not insurable for the work allegedly done in Quebec.
[186] The Court of course has nothing to say about counsel for the appellant's comment that this trial had not helped the appellant’s health, as no physician testified on this point at the hearing.
[187] It is not normal for employees to have to wait so long to cash their paycheques.
[188] The error in the date in the record of employment was also damaging to the appellant's case.
[189] For the weeks worked in Quebec there is no doubt that the employment was "convenience" employment within the meaning of Rousselle and it is apparent that the motivation of the parties was the desire to take advantage of the provisions of social legislation rather than to participate in the ordinary operation of the economic forces of the market place.
[190] The appellant's claim that she worked at the Notre-Dame-du-Lac warehouse and not at the one in Cabano means that her counsel's argument that the Cabano shop closed in February 1992 and that the appellant was paid until the end of that month, cannot be accepted.
[191] Section 3(2)(c) of the Unemployment Insurance Act was relied on at the outset in the decision by the Minister appealed from herein.
[192] The appeal should therefore be dismissed and the decision appealed from affirmed with regard to the 22 weeks worked by the appellant in Quebec, but it should be allowed and the decision appealed from reversed with regard to the four weeks worked by the appellant in Edmunston, New Brunswick, that is, three weeks in July and one in August.
[193] The decision appealed from should therefore be varied accordingly.
" A. Prévost "
D.J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 29th day of June 1998.
Erich Klein, Revisor