Date: 19991208
Dockets: 98-1018-UI; 98-1019-UI
BETWEEN:
HOOBANOFF LOGGING LIMITED,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Porter, D.J.T.C.C.
[1] These appeals were heard at Calgary, Alberta on May 25, 1999. They were heard on common evidence with the consent of the parties.
[2] The Appellant has appealed the decisions of the Minister of National Revenue (the "Minister") dated June 9, 1998, wherein he decided that the employment of Dennis Hoobanoff and Brian Hoobanoff, his brother, with the Appellant Company (the "Company") from January 1 to October 30, 1997 was insurable employment under the Employment Insurance Act (hereinafter called the "EI Act").
[3] The reasons given were as follows:
"It has been decided that premiums [on your earnings through the above dates] were payable for the following reasons:
You were employed under a Contract of Service. There was an employee/employer relationship between you and Hoobanoff Logging Limited during the period under review." (emphasis mine)
The decisions were said to be issued pursuant to section 93 of the EI Act and were based on paragraph 5(1)(a) of the EI Act.
[4] It is noteworthy that the decisions were not based on paragraph 5(3)(b) of the EI Act which gives the Minister the power to include certain 'related persons' employment situations into the fold of "insurable employment", if he is satisfied that they are substantially similar in their terms to an arrangement that would have been made between persons dealing with each other at arm's length. As the two brothers are related to each other and to the majority shareholder, their father, the law automatically excludes them, unless the Minister were to exercise his discretion under paragraph 5(3)(b) of the EI Act. When the Minister exercises his discretion in this fashion, the fact of his doing so is generally communicated to the Appellant with the decision. In this case, there was no mention of such and one must wonder when that first came about.
[5] Nevertheless, the established facts do reveal that the two brothers were employed by the Company, that they each held 24% of the shareholding in the Company at the relevant times, and that their father held the remaining 52%.
[6] I raise the question because in the original ruling in these matters by K.J. Ritcey, Director of Taxation, on October 30, 1997 in the Penticton, British Columbia Office of Revenue Canada, there is also no mention made of his having taken that position. In fact, the whole thrust of that ruling was that the work carried on by the brothers for the Company was being done by them under a contract of service, not a contract for services. This was strange as this never seems to have been in issue. The brothers have always, it seems to me, accepted that they were working under contracts of service, as employees of the Company.
[7] The ruling, in addition, said that the employment was considered insurable under paragraph 5(2)(b) of the EI Act as each of the brothers controlled less than 40% of the shareholding in the Company. Again, that was not an issue. The issue, in fact, was that they were not dealing with the Company at arm's length which was dealt with neither in the original ruling, nor in the decisions of the Minister on June 9, 1998 signed on his behalf by J. Ralla, Assistant Director – Appeals in the Vancouver Taxation Office of Revenue Canada.
[8] The very first time that any mention is made of the Minister having exercised his "discretion" under paragraph 5(3)(b) of the EI Act occurs in the Reply to the Notice of Appeal, signed by one S. Trueblood on behalf of the Deputy Attorney General of Canada on November 16, 1998. Nothing was put in evidence to support the fact that this was ever done, other than the statement of the agent for the Respondent in paragraph 11 of the Reply, and the reference to it in the facts upon which the Minister was said to rely in paragraph 5(ff) of the Reply; the latter is not really a fact, but simply a statement of his opinion. It was expressed nowhere else. I, quite frankly, must wonder whether the Minister in fact ever applied his mind to that question; for if he did not, the appeal should be allowed as the parties are clearly deemed by law to be not dealing with each other at arm's length, as they are related people, pursuant to terms of section 251 of the Income Tax Act.
[9] However, the agent for the Deputy Attorney General has said that the Minister did apply his mind to that question and, although it is most curious that no mention is made of it anywhere else, I must proceed on the basis that he did in fact do so. It hardly bears mention, that it would be a most serious situation for the Respondent and counsel acting for him to have stated in the Reply to the Notice of Appeal, that this was done, if in fact it was not. If however it was done, I continue to wonder why no mention was made of it in the decisions, as is normally the case in these types of situations.
[10] I made reference to the nature of the situation, arising in this matter in my decision of even date under the name of Crawford & Company Ltd. and M.N.R. (98-407(UI), 98-537(UI) and 98-538(UI)). I adopt what I said in that case as this is also an instance of the Minister purportedly exercising his discretion to include employment situations in the fold of the employment insurance scheme, when the law would otherwise, in the natural course of events, have excluded them.
[11] Usually, the Minister is being asked to open the door to persons claiming benefits on the basis that the exception should be applied. Appeals constantly come to the Court after the Minister has refused to exercise his discretion in their favour. In this case, however, as in the Crawford case (above), the Minister is proactively exercising his discretion to bring people into the fold of the employment insurance scheme, who would not otherwise by operation of the law, be there. Thus, as a result of the exercise of his discretion, they are being assessed for premiums. I am of the view that the law enables him to do that in the appropriate circumstances, but that such is hardly consistent with the intent of the amendments made to the Unemployment Insurance Act in 1990 when this discretion was first introduced. In the House of Commons André Plourde, MP speaking on behalf of the government of the day, at the time the amendments to the Unemployment Insurance Act were introduced, said that Bill C-21 had provisions to eliminate unfair restrictions on eligibility of benefits and:
"All the changes proposed in Bill C-21 have essentially been designed to make that system more efficient and equitable and to meet the needs of workers." (see Hansard June 7, 1989 House of Commons Debates page 2722)
[12] Nonetheless, as a matter of strict interpretation of the law, I am satisfied that the legal capacity for the Minister to do this exists. It is not for the Court to get involved in policy matters, but I do point out the difference between the developing practice, as evidenced by these cases, and the apparent intention of Parliament with respect to this section, at the time it was introduced, namely to alleviate the hardship and inequity that would be faced by related people in genuine virtual arm's length relationships, who would otherwise be unable to participate in the scheme. There was never any suggestion that it was designed to provide a large net to the Minister to go fishing and haul in those he could catch by exercising his discretion, proactively.
[13] Furthermore, this interpretation of the section by the Minister seems inherently unfair, in that if these brothers were not related to the major shareholder and the Minister had decided as a matter of fact that they were dealing with the Corporation at arm's length, they would have the right to appeal to this Court on a de novo basis. As it is, because they are related to the majority shareholder, although the basic law says that they are out of the scheme due to the exercise of the discretion by the Minister, they are brought into it against their wishes and they have only a limited right of appeal; that is, their right to appeal is curtailed by the deference the Court must give to the Minister in the exercise of his discretion, in these circumstances.
[14] While that deference and the limited appeal rights seem perfectly logical and fair when people who are basically excluded by the law are trying to bring themselves within the terms of an exception, and the Minister is charged with the responsibility by Parliament to exercise his discretion, the same cannot be said when the Minister by the exercise of that discretion, proactively reaches out to bring people into the scheme, when they have no wish to be there.
The Law relating to a Review of the Decisions of the Minister
[15] In the scheme established under the EI Act, Parliament has made provision for certain employment to be insurable, leading to the payment of benefits upon termination, and other employment which is "not included" and thus carrying no benefits upon termination. Employment arrangements made between persons, who are not dealing with each other at arm's length, are categorized as not included. Brothers and corporations controlled by persons related to them are deemed not to be dealing with each other at arm's length pursuant to subsection 251(1) of the Income Tax Act, which governs the situation. Quite clearly the original purpose of this legislation was to safeguard the system from having to pay out a multitude of benefits based on artificial or fictitious employment arrangements, see the comments of the Federal Court of Appeal in Paul v The Minister of National Revenue, #A-223-86 unreported, where Hugessen J. said:
"We are all prepared to assume, as invited by appellant's counsel, that paragraph 3(2)(c) of the Unemployment Insurance Act, 1971, and subsection 14(a) of the Unemployment Insurance Regulations have for at least one of their purposes the prevention of abuse of the Unemployment Insurance Fund through the creation of so-called "employer-employee" relationships between persons whose relationship is, in fact, quite different. That purpose finds obvious relevance and rational justification in the case of spouses who are living together in a marital relationship. But even if, as appellant would have us do, we must look only at spouses who are legally separated and may be dealing at arm's length with one another, the nature of their relationship as spouses is such as, in our view, to justify excluding from the scheme of the Act the employment of one by the other.
...
We do not exclude the possibility that the provisions may have other purposes, such as a social policy decision to remove all employment within the family unit from the operation of the Unemployment Insurance Act, 1971, as was suggested by respondent's counsel." (emphasis mine)
[16] The harshness of this situation has however been tempered by paragraph 5(3)(b) of the EI Act, which provides for such employment between related persons to be deemed to be at arm's length and thus in turn to be treated as insurable employment, if it meets all the other provisions, where the Minister is satisfied having regard to all the circumstances of the employment, including the remuneration paid, theterms and conditions, the duration and the nature and importance of the work performed, that it is reasonable to conclude that they would have entered into a substantially similar contract if they had (in fact) been dealing with each other at arm's length.
[17] It may be helpful to reframe my understanding of this section. For people related to each other the gate is closed by the statute to any claim for employment benefits unless the Minister can be satisfied that in effect the employment arrangement is the same as that which unrelated persons, that is persons who are clearly at arm's length, would have made. If it is a substantially similar contract of employment, Parliament has deemed it to be only fair that it should be included in the scheme. However the Minister is the gatekeeper. Unless he is so satisfied the gate remains closed, the employment remains excepted and the employee is not eligible for benefits.
[18] Subsection 93(3) of the EI Act deals with appeals to and the determination of questions by the Minister. It requires that:
"The Minister shall decide the appeal within a reasonable time after receiving it and shall notify the affected persons of the decision."
[19] Thus the Minister has no discretion whether or not to decide the question. He is required by law to do so. If he is not satisfied, the gate remains closed and the employee is not eligible. If however he is satisfied, without more ado or any action on the part of the Minister (other than notification of the decision) the employee becomes eligible for benefits, provided he is otherwise qualified. It is not a discretionary power in the sense that if the Minister is satisfied he may then deem the employment to be insurable. He must "determine the question" and depending on that determination the law deems the employment to be either at arm's length or not at arm's length. In this sense the Minister has no discretion to exercise in the true sense of the word, for in making his decision he must act quasi-judicially and is not free to chose as he pleases. The various decisions of the Federal Court of Appeal on this issue reveal that the same test applies as to a myriad of other officials making quasi-judicial decisions in many different fields. See Tignish Auto Parts Inc. v. M.N.R., 185 N.R. 73, Ferme Émile Richard et Fils Inc. v. M.N.R., 178 N.R. 361, Attorney General of Canada and Jencan Ltd., (1997) 215 N.R. 352 and Her Majesty the Queen and Bayside Drive-in Ltd., (1997) 218 N.R. 150.
[20] The function of this Court then, upon appeal, is to review the decision of the Minister and decide whether it was arrived at lawfully that is in accordance with the EI Act and with the principles of natural justice. In the case Her Majesty the Queen v. Bayside et al., supra, the Federal Court of Appeal laid out certain matters which should be considered by this Court when hearing these appeals. These were:
"(i) whether the Minister acted in bad faith or for an improper purpose or motive,
(ii) whether the Minister failed to take into account all of the relevant circumstances, as espressly required by s. 3(2)(c); or
(iii) whether the Minister took into account an irrelevant factor."
[21] The Court went on to say:
"It is only if the Minister made one or more of these reviewable errors that it can be said that his discretion was exercised in a manner contrary to law, and ... the Tax Court judge would be justified in conducting his own assessment of the balance of probabilities as to whether the respondents would have entered into substantially similar contracts of service, if they had been at arm's length."
[22] I remind myself, when reviewing this case, that it is not for this Court to substitute its opinion of the evidence for that of the Minister. However, if his or her manner of arriving at the decision was unlawful in the context of the judgments set out above, those affected parts of the stated facts may be disregarded and I must then consider whether that which is left affords justifiable grounds for the decision. If those grounds, standing alone, are sufficient for the Minister to form a decision, albeit that the Court may not agree with it, the decision must stand. If on the other hand there is no basis left upon which the Minister might lawfully make such a decision, from an objective and reasonable point of view, then such decision may be struck down and the Court can consider the evidence before it on appeal and make its own decision.
[23] In summary then, if there are sufficient facts before the Minister for his decision, it is his or her determination to make and if he or she is "not satisfied" it is not for this Court to substitute its view of those facts and say he should have been satisfied. Similarly, if he or she was satisfied, it is not for this Court to substitute its view that he or she should not have been satisfied (an unlikely scenario in any event). Only if the decision is reached in an improper manner and it is unreasonable, from an objective point of view, on the basis of the facts, which were properly before the Minister, may the Court interfere.
[24] I am fortified in this approach by a number of decisions of various Courts of Appeal across the country and the Supreme Court of Canada in related decisions concerning the issue of various processes under the Criminal Code, which subsequently came to be reviewed by the Courts and are in my view analogous to the present situation. The standard of review of the validity of a search warrant was set out by Cory, J.A. (as he then was) in Times Square Book Store, Re (1985) 21 C.C.C. (3d) 503 (C.A.), where he said that it was not the role of the reviewing judge to look at or consider the authorization of a search warrant de novo and it was not open to the reviewing judge to substitute his or her own opinion for that of the issuing judge. Rather, on review, the first issue to be decided was whether or not there was evidence upon which a justice of the peace, acting judicially, could determine that a search warrant should be issued.
[25] The Ontario Court of Appeal reiterated and expanded upon this point of view in R. v. Church of Scientology of Toronto and Zaharia (1987) 31 C.C.C. (3d) 449 C.A. leave to appeal refused. In suggesting that the reviewing Court look at the "totality of the circumstances" the Court said at 492:
"Obviously if there is not such evidence to provide a basis for such a belief (that a criminal offence had been committed) it cannot be said that in those circumstances the justice should be satisfied. There will, however, be cases where such evidence (showing reasonable grounds) does exist and the justice could be satisfied but where he or she is not satisfied and does not exercise his or her discretion in favour of issuing a search warrant. In these circumstances, the reviewing judge must not say that the justice should have been satisfied and should have issued the warrant. Similarly, if the justice in such circumstances says that he or she is satisfied and issues the warrant, the reviewing judge must not say that the justice should not have been so satisfied."
[26] The Supreme Court of Canada endorsed this approach in R. v. Garofoli (1990) 2 S.C.R. 1421. The late Mr. Justice Sopinka, when dealing with the review of the issue of an authorization to wiretap, then said:
"While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states...
If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorisation exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge."
[27] This approach appears to have been adopted by almost every appellate court in the country. (See R. v. Jackson (1983) 9 C.C.C. (3d) 125 (B.C. C.A.); R. v. Conrad et al. (1989) 99 A.R. 197; 79 Alta. L.R.; (2d) 307; 51 C.C.C. (3d) 311 (C.A.); Hudon v. R. (1989) 74 Sask. R. 204 (C.A.); and R. v. Turcotte (1988) 60 Sask. R. 289; 39 C.C.C. (3d) 193 (C.A.); R. v. Borowski (1990) 66 Man. R. (2d) 49; 57 C.C.C. (3d) 87 (C.A.); Bâtiments Fafard Inc. et autres c. Canada et autres (1991) 41 Q.A.C. 254 (C.A.); Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et autres (1991) 104 N.B.R. (2d) 1; 261 A.P.R. 1; 55 C.C.C. (3d) 133 (C.A.); R. v. Carroll and Barker (1989) 88 N.S.R. (2d) 165; 225 A.P.R. 165; 47 C.C.C. (3d) 263 (C.A.); R. v. MacFarlane (K.R.) (1993) 100 Nfld. & P.E.I.R. 302; 318 A.P.R. 302; 76 C.C.C. (3d) 54 (P.E.I. C.A.). It seems to me most relevant to a review of the Minister's determination, which is itself a quasi-judicial decision.
Review of the Decisions of the Minister
[28] The Minister was said in the Replies to the Notices of Appeal, to have relied on certain facts. The Appellant agreed with the majority of those and they are the same in each appeal. I have put in parenthesis the agreement or disagreement of the Appellant. The stated facts are as follows:
"(a) the Appellant was in the business of logging; (agreed)
(b) 52% of the voting shares of the Appellant were owned by Peter Hoobanoff, 24% were owned by Brian Hoobanoff and 24% were owned by Dennis Hoobanoff; (agreed)
(c) Dennis Hoobanoff and Brian Hoobanoff are brothers; (agreed)
(d) Dennis Hoobanoff and Brian Hoobanoff are the sons of Peter Hoobanoff; (agreed)
(e) Dennis Hoobanoff, Brian Hoobanoff and Peter Hoobanoff were the directors of the Appellant; (agreed)
(f) Brian Hoobanoff and Dennis Hoobanoff were related to the Appellant within the meaning of the Income Tax Act; (agreed)
(g) the day-to-day operations of the Appellant were run by Dennis Hoobanoff and Brian Hoobanoff; (agreed)
(h) Peter Hoobanoff was retired from the day-to-day operations of the Appellant, but occasionally did consulting work for the Appellant; (not really consulting) (agreed)
(i) Brian Hoobanoff was the secretary treasurer of the Appellant; (agreed)
(j) Brian Hoobanoff's duties included supervising employees in the "hand crew", negotiation of contracts, administrative duties and covering for Dennis Hoobanoff in the event he was busy or was away; (agreed)
(k) Dennis Hoobanoff was the vice-president of the Appellant; (agreed)
(l) Dennis Hoobanoff's duties included supervising employees in the "high lead logging crew", administrative duties and covering for Brian Hoobanoff in the event he was busy or away; (agreed)
(m) both Dennis Hoobanoff and Brian Hoobanoff had signing authority for the Appellant; (agreed) ("only two people")
(n) both Brian Hoobanoff and Dennis Hoobanoff could borrow money on behalf of the Appellant; (agreed)
(o) both Brian Hoobanoff and Dennis Hoobanoff had provided guarantees for the Appellant's loans; (agreed)
(p) both Brian Hoobanoff and Dennis Hoobanoff had the authority to hire and dismiss staff; (agreed)
(q) neither Dennis Hoobanoff or Brian Hoobanoff had set hours or days of work; (agreed)
(r) neither Dennis Hoobanoff or Brian Hoobanoff maintained a record of the hours they worked; (agreed) ("all other employees kept record")
(s) Dennis Hoobanoff and Brian Hoobanoff were paid an annual salary by the Appellant; (agreed)
(t) Dennis Hoobanoff's and Brian Hoobanoff's salary was determined at the beginning of each year; (agreed) ("depending on profitability")
(u) for the 1995, 1996 and 1997 years, Dennis Hoobanoff and Brian Hoobanoff received salary from the Appellant as follows: (agreed)
1995 1996 1997
Brian Hoobanoff $54,983 $58,732 $58,869
Dennis Hoobanoff $68,65l $65,120 $64,477
(v) the Appellant employed an average of 25-30 employees; (agreed)
(w) no directors fees were paid to any of the shareholders; (agreed)
(x) the salaries paid to Dennis Hoobanoff and Brian Hoobanoff were reasonable in view of the services they provided to the Appellant; (agreed)
(y) both Dennis Hoobanoff and Brian Hoobanoff were paid on a bi-weekly basis; (agreed)
(z) the other employees of the Appellant were paid on a bi-weekly basis; (agreed)
(aa) Dennis Hoobanoff and Brian Hoobanoff were paid bi-weekly regardless of the Appellant's financial position; (disputed)
(bb) all employees of the Appellant, including Dennis Hoobanoff and Brian Hoobanoff, had medical and dental benefits sponsored by the Appellant; (disputed)
(cc) all employees, including Dennis Hoobanoff and Brian Hoobanoff were paid vacation pay based on 4% or 6% of their gross earnings; (agreed)
(dd) the Appellant provided all of the tools and equipment required for Dennis Hoobanoff and Brian Hoobanoff to perform their duties; (agreed)
(ee) Dennis Hoobanoff and Brian Hoobanoff did not incur any expenses in the performance of their duties; (disputed)"
[29] Evidence was given on behalf of the Appellant by Dennis Hoobanoff. I found him to be a most honest witness. He left me with the clear impression that he was a straight forward, industrious and conscientious worker and businessman.
[30] The major area of dispute that he had with the facts, said to have been relied upon by the Minister, was item (aa). He said that there were times when the Company was strapped for cash, that he and his brother could not take their cheques because there was insufficient money and they had delayed doing so. Clearly, that is a factor upon which the Minister often relies in other cases to show that the persons are not dealing with each other at arm's length.
[31] Another matter concerned the hours of work. The evidence was that these brothers often put in 12 to 14 hours of work per day. Mr. Hoobanoff said they virtually worked 365 days a year. He said he started each day at 3:00 a.m. in the field and often worked right through to the evenings doing the administrative work. There are few people dealing with their employers at arm's length who work under such conditions, and the Minister does not seem to have taken that into account. In my view, that was a highly relevant fact.
[32] The significance of the hours of work also comes into play. The Minister was said to have considered the salaries of the brothers. In fact, if one takes into account the hours worked, these salaries were quite low for the management responsibilities the brothers carried. On the basis of 365 days at 12 hours per day, the salary of Dennis Hoobanoff would translate into $15.00 per hour in 1997. If he worked just 12 hours per day for 5 days per week, and he said that he did more than that, it would only amount to $20.00 per hour. His evidence about how hard they worked and what they were paid clearly demonstrated that people working for the Company at arm's length would not have worked for those wages and carried those responsibilities. This was again a factor which was not put before the Minister and in my view, it was highly relevant.
[33] The two brothers signed significant personal guarantees when it came to purchasing equipment for the Company. This is a fact mentioned in the Replies as having been considered by the Minister, but it is unclear if he was aware of the extent of their obligations. An equipment loan and security agreement in the amount of $545,572.00 was filed in evidence, along with the guarantees of the brothers as an example of the extent of the liability they had assumed on behalf of the Company. Counsel for the Minister argued that they did this in their capacity as directors and not as employees and that the distinction had to be drawn between these two capacities. That, of course, begs the question, whether the economic interests of the Company and the brothers can be sufficiently distinguished in these circumstances. It is unclear whether the Minister gave consideration to the extent of these obligations and clearly that would be a highly relevant factor.
[34] A further item raised by the Appellant was that the brothers came and went as they chose. They could take time off without seeking permission from anyone, and the evidence revealed examples of when they had done so without the diminution of their remuneration as would normally be the case with regular employees. The Minister does not appear to have considered that in this case, although I would note that it is a factor frequently seen in his decisions where he has declined to exercise his discretion.
[35] Similarly, the Minister does not seem to have taken into account that the brothers set their own salaries. This is something the Minister frequently uses as a factor in declining to exercise his discretion (see, many of the reported cases of appeals to this Court). Moreover, they set their salaries more in relation to their projections for the Company than with reference to any regular employment standards. Other employees would be paid the going rate in the industry.
[36] Another factor not considered by the Minister, which was revealed by the evidence, was the use by the brothers of Company equipment for their own personal use, something the other employees did not have the opportunity to do. This related particularly to the use of vehicles.
[37] Regular employees of the Company were laid off each year at the time of the spring break-up. That was not the case of the brothers who continued to draw their salaries and involved themselves in repairing and refurbishing the logging equipment. That is another factor not taken into account by the Minister. It was yet again an example of how their daily lives, as well as their economic lives, were inextricably bound up with the Company. As Dennis Hoobanoff said, without them there would be no business and no company.
[38] When I consider all of the factors not considered by the Minister, which are highly relevant to the decisions he was said to have made, I cannot but come to the conclusion that if he had had them before him for consideration, he could not, from an objective point of view, have reasonably and lawfully arrived at the decisions that he did. It is thus not sustainable in law and I must now advance to the second stage of the appeal process and decide whether on all the evidence, the parties, had they been at arm's length, would have entered into substantially similar contract of employment, taking into account all of the circumstances including specifically those set out in paragraph 5(3)(b) of the EI Act.
Stage 2
Review of the Evidence
[39] At the outset, I cannot help remarking upon the irony of the fact, that in this case, many of the factors said to have been relied upon by the Minister are precisely the same types of factors upon which he has said to rely upon so often in appeals where he has declined to exercise his discretion, e.g. setting own hours of work, setting own salaries, not keeping records of hours worked, taking time off without having to seek permission, holding pay cheques when the Company was short of funds, to name but a few. I cannot help but think that if the Minister had been looking through the other end of the telescope in a situation whereby one of the brothers had been claiming employment benefits in these circumstances he would have quickly come to a contrary conclusion on this basis. I am not suggesting any bad faith here, but there does seem to be something of a double standard being established.
[40] I do not intend to set out all of the evidence again. I have already referred to the significant facts. It is clear in my mind, that the two brothers were the Company. Their economic interests were inexorably bound up with those of the Company. Although perhaps they signed the guarantees in their capacities as shareholders or directors, the fact that they did so shows an inextricably inter-woven relationship between the Company and the brothers. Their economic interests were tied to the Company and those of the Company's were tied to theirs, to such an extent that it could not be said that there was an independent or adverse economic interest existing between them. They were the operating mind of the Company; they themselves were related and had a common family economic interest, which was indivisible from that of the Company. This is exactly the situation contemplated by Parliament in setting up the employment insurance scheme, to exclude persons, who are operating or controlling their own businesses, in an entrepreneurial fashion, from participating in that scheme and being able to claim benefits if their employment fails.
[41] That is not to say that people in management positions running a company, could never be said to be dealing with that company at arm's length, even if they are also shareholders. If for example, their contract arrangements were clearly set out in a formal written contract, and there was a clear division between their own interests and those of the corporation, so that each might profit separately and independently from the other, that could very well be viewed as a relationship substantially similar to one which parties, dealing with each other at arm's length, might make. Where, however, such as here, the workers virtually are the Company and treat it as their own affair, to such an extent, for example, that their salaries do not get paid if the Company is short of funds, this is a strong indication of entrepreneurial ownership and not of parties dealing with each other at arm's length.
Conclusion
[42] Taking into account all of the circumstances, including in particular the extensive hours and days put in by the brothers, their opportunity to just take leave without permission from anyone and still get paid, their having to delay deposit of their pay cheques if the Company was short of funds, their signing of guarantees for the Company, I am of the firm view that there was no independence of thought or purpose prevailing between the Company and the brothers, there was no adverse economic interest, their stakes were inextricably woven together and there was not the bona fide type of separate negotiation permeating their relationship that one would expect to find existing between those traders in the marketplace to whom I referred at some length in the Crawford decision (above). Accordingly I hold that neither of them were employed in insurable employment.
[43] In the event, the appeals are allowed and the decisions of the Minister are vacated.
Signed at Calgary, Alberta, this 8th day of December 1999.
"Michael H. Porter"
D.J.T.C.C.