Date: 20010205
Dockets: 97-1418-UI, 97-1420-UI, 97-1421-UI, 97-1422-UI,
96-2493-UI, 97-33-UI, 97-34-UI, 97-263-UI
BETWEEN:
VARDY VILLA LIMITED, ROY GOOBIE,
VIOLET L. DIAMOND, JOSEPH DIAMOND, DAVID KEOUGH,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor Judgment
CAIN, D.J.T.C.C.
[1] The above Corporate Appellant (the "Payor") and the personal Appellants (the "Workers") appealed the decisions of the Respondent that the engagement of the parties during specific periods (the "periods in question") was not insurable employment in accordance with the Unemployment Insurance Act (the "Act"). The Respondent in all cases notified the Appellants in writing that the reason for his decision was that there was no contract of service between the Payor and each respective Worker and therefore no employer/employee relationship.
[2] The appeals were heard at Gander, Newfoundland/Labrador on July 13, 2000. The parties agreed that the appeals should be heard at the same time, the evidence adduced to be applied to each respective appeal as the context required and that there was no necessity of creating more than one record.
[3] The periods in question for each of the personal Appellants are as follows:
1. Roy Goobie - August 14, 1995 to November 17, 1995.
2. David Keough - April 3, 1995 to June 23, 1995 and September 4, 1995 to June 21, 1996.
3. Violet L. Diamond - April 3, 1995 to June 23, 1995 and September 4, 1995 to June 21, 1996.
4. Joseph Diamond - April 3, 1995 to June 23, 1995 and September 4, 1995 to June 21, 1996.
5. The Court notes that in describing the period in question of Worker Roy Goobie, the Respondent did not include the period of November 20, 1995 to June 12, 1996. The Respondent did include that period in his Reply in respect to the Worker's non-arm's length relationship with the Payor. The Worker admitted that fact.
[4] The Respondent based his determinations on the following assumptions in respect to the Workers:
JOSEPH AND VIOLET L. DIAMOND
"(a) the Appellant was a corporation duly incorporated under the laws of the Province of Newfoundland on September 21, 1987;
(b) at all relevant times the Appellant's issued shares were owned by Dennis Vardy and his spouse, Amy Vardy;
(c) the Appellant engaged the Worker to drive students from the Newfoundland communities of Jamestown, Portland, Brooklyn and Lethbridge to and from the Musgravetown High School and Elementary Schools;
(d) during the period in question the Worker drove the same routes which took 1 hour in the morning and 1 hour in the afternoon for a total of 2 hours work, 5 days a week;
(e) the Worker was paid $50 per week from January 1, 1995 to March 31, 1995 and then $260 per week from April 30, 1995 to June 23, 1995;
(f) the Worker was paid $50 per week from September 4, 1995 to March 29, 1996 and then $250 per week from April 1, 1996 to June 21,1996;
(g) the Worker was paid the same weekly amount even if the bus did not operate due to inclement weather;
(h) the Worker did not perform any additional or different duties in the periods where he was paid $260 or $250 per week than he did in the periods where he was paid $50 per week;
(i) the Worker was not supervised when carrying out his duties;
(j) the Worker was free to substitute his personal services with that of another driver without first obtaining permission from the Appellant;
(k) the Worker received his full pay even when he did not drive the school bus every day during the week;
(l) the Appellant was only interested in the completion of the service, not in how it was done or who performed the tasks;
(m) the Worker took the school bus home each day and was responsible for seeing that maintenance was done to the bus as needed;
(n) there was no contract of service between the Worker and the Appellant."
[5] In the alternative, he based his determinations on the following assumptions:
"(a) while performing services for the Appellant, the Worker was in receipt of unemployment insurance benefits from January 1, 1995 to January 28, 1995 and from September 4, 1995 to March 29, 1996;
(b) while in receipt of unemployment insurance benefits the Worker's pay was reduced to $50 per week;
(c) the Worker's duties remained the same whether he was paid $50 per week or $250 per week;
(d) as per the ... Schedule "A", the Appellant engaged other workers under schemes similar to the Worker's employment arrangement in 1995 and 1996;
(e) the Worker's rate of pay when employed full time was excessive;
(f) the Worker's employment with the Appellant was an artificial arrangement designed to take advantage of the unemployment insurance benefits system;
(g) the Worker benefited from the arrangement by receiving unemployment insurance benefits while working for the Appellant and receiving a weekly pay of $50 to top up his income;
(h) the Appellant benefited from this arrangement by having its wage costs subsidized by unemployment insurance benefits which enabled the Appellant to pay lower weekly wages to the Worker of $50 for the same services that cost the Appellant $250 per week during the period in question;
(i) the Appellant was factually not dealing with the Worker at arm's length."
DAVID KEOUGH
"(a) the Appellant was a corporation duly incorporated under the laws of the Province of Newfoundland on September 21, 1987;
(b) at all relevant times the Appellant's issued shares were owned by Dennis Vardy and his spouse, Amy Vardy;
(c) the Appellant engaged the Worker to drive students from the Newfoundland communities of Catalina and Little Catalina to and from the Catalina Elementary School;
(d) during the period in question the Worker drove the same routes which took 25 minutes in the morning, 25 minutes at lunch time and 25 minutes in the afternoon for a total of 1 hour and 15 minutes, 5 days a week;
(e) the Worker was paid $60 per week with no vacation pay from January 1, 1995 to March 31, 1995 and then $300 per week plus $12 vacation pay from April 2, 1995 to June 22, 1995;
(f) the Worker was paid $60 per week with no vacation pay from September 4, 1995 to March 29, 1996 and then $300 plus $12 vacation pay per week from April 1, 1996 to June 21, 1996;
(g) the Worker was paid the same weekly amount even if the bus did not operate due to inclement weather;
(h) the Worker did not perform any additional or different duties in the periods where he was paid $300 per week than he did in the periods where he was paid $60 per week;
(i) the Worker was not supervised when carrying out his duties;
(j) the Worker was free to substitute his personal services with that of another driver without first obtaining permission from the Appellant;
(k) the Worker received his full pay even when he personally did not drive the school bus every day during the week;
(l) the Appellant was only interested in the completion of the service, not in how it was done or who performed the tasks;
(m) the Worker took the school bus home each day and was responsible for seeing that maintenance was done to the bus as needed;
(n) there was no contract of service between the Worker and the Appellant."
[6] In the alternative, he based his determination on the following assumptions:
"(a) while performing services for the Appellant, the Worker was in receipt of unemployment insurance benefits from January 1, 1995 to January 28, 1995 and from September 4, 1995 to May 15, 1996;
(b) while in receipt of unemployment insurance benefits the Appellant's pay was reduced to $60 per week to perform the same services;
(c) as per the ... Schedule "A", the Appellant engaged other workers under schemes similar to the Worker's employment arrangement in 1995 and 1996;
(d) the Worker's rate of pay when employed full time was excessive;
(e) the Worker's employment with the Appellant was an artificial arrangement designed to take advantage of the unemployment insurance benefits system;
(f) the Worker benefited from the arrangement by receiving unemployment insurance benefits while working for the Appellant and receiving a weekly pay of $60 to top us his income;
(g) the Appellant benefited from this arrangement by having its wage costs subsidized by unemployment insurance benefits which enabled the Appellant to pay lower weekly wages to the Worker of $60 for the same services that cost the Appellant $312 per week during the period in question;
(h) the Appellant was factually not dealing with the Worker at arm's length."
ROY GOOBIE
"(a) the Appellant was a corporation duly incorporated under the laws of the Province of Newfoundland on September 21, 1987;
(b) at all relevant times the Appellant's issued shares were owned by Dennis Vardy and his spouse, Amy Vardy;
(c) the Appellant engaged the Worker to drive students from the Newfoundland communities of Jamestown, Portland, Brooklyn and Lethbridge to and from the Musgravetown High School and Elementary Schools;
(d) during the period in question the Worker drove the same routes which took 40 minutes in the morning and 35 minutes in the afternoon for a total of 1 hour and 15 minutes work, 5 days a week;
(e) the Worker was paid $400 per week plus 4% vacation pay from August 14, 1995 to November 17, 1995 and then $65 per week without vacation pay from November 20, 1995 to June 28, 1996;
(f) the Worker was paid $400 per week plus 4% vacation pay from September 2, 1996 to October 11,1996;
(g) the Worker was paid the same weekly amount even if the bus did not operate due to inclement weather;
(h) the Worker did not perform any additional or different duties in the periods where he was paid $400 per week plus vacation pay than he did in the periods where he was paid $65 per week;
(i) the Worker was not supervised when carrying out his duties;
(j) the Worker was free to substitute his personal services with that of another driver without first obtaining permission from the Appellant;
(k) the Worker received his full pay even when he did not drive the school bus every day during the week;
(l) the Appellant was only interested in the completion of the service, not in how it was done or who performed the tasks;
(m) the Worker took the school bus home each day and was responsible for seeing that maintenance was done to the bus as needed;
(n) there was no contract of service between the Appellant and the Worker."
[7] In the alternative, he based his determination on the following assumptions:
"(a) the Worker was in receipt of unemployment insurance benefits from December 25, 1994 to August 5, 1995 and when his claim expired he was put on the Appellant's payroll full time as of August 14, 1995 at full pay;
(b) while performing services for the Appellant, the Worker was in receipt of unemployment insurance benefits from November 20, 1995 to June 12, 1996;
(c) while in receipt of unemployment insurance benefits the Appellant's pay was reduced to $65 per week to perform the same duties;
(d) as per the ... Schedule "A", the Appellant engaged other workers under schemes similar to the Worker's employment arrangement in 1995 and 1996;
(e) the Worker's rate of pay when employed full time was excessive;
(f) the Worker's employment with the Appellant was an artificial arrangement designed to take advantage of the unemployment insurance benefit system;
(g) the Worker benefited from the arrangement by receiving unemployment insurance benefits while working for the Appellant and receiving a weekly pay of $65 to top up his income;
(h) the Appellant benefited from this arrangement by having its wage costs subsidized by unemployment insurance benefits which enabled the Appellant to pay lower weekly wages to the Worker of $65 for the same services that cost the Appellant $400 per week during the period in question;
(i) the Worker was factually not dealing with the Appellant at arm's length."
[8] Schedule "A", mentioned in the alternative assumptions, is the same for appeals of the Payor and each of the Workers and is as follows:
Schedule "A"
Employee No. 1
On the Payor's payroll for:
14 weeks at $50.00/week from January 1, 1995 to March 31, 1995;
12 weeks at $260.00/week from April 3, 1995 to June 23, 1995;
30 weeks at $50.00/week from September 4, 1995 to March 29, 1996; 12 weeks at $250.00/week from April 1, 1996 to June 28, 1996;
6 weeks at $100/week from September 2, 1996 to October 11, 1996.
Employee No. 2
On the Payor's payroll for:
13 weeks at $50.00/week from January 1, 1995 to March 31, 1995;
12 weeks at $250.00/week from April 3, 1995 to June 23, 1995;
30 weeks at $50.00/week from September 4, 1995 to March 29, 1996; 12 weeks at $250.00/week from April 1, 1996 to June 28, 1996;
6 weeks at $100/week from September 2, 1996 to October 11, 1996.
Employee No. 3
On the Payor's payroll for:
18 weeks at $75.00/week from September 2, 1995 to January 5, 1996; 24 weeks at $325.00/week from January 8, 1996 to June 21, 1996;
6 weeks at $250/week from September 2, 1996 to October 11, 1996.
Employee No. 4
On the Payor's payroll for:
14 weeks at $400.00/week from August 14, 1995 to November 17, 1995;
30 weeks at $65.00/week from November 20, 1995 to June 21, 1996;
6 weeks at $400/week from September 2, 1996 to October 11, 1996.
Employee No. 6
On the Payor's payroll for:
8 weeks at $60.00/week from January 1, 1995 to February 23, 1995;
17 weeks at $260.00/week from February 27, 1995 to June 23, 1995;
2 weeks at $40.00/week from September 4, 1995 to September 15, 1995;
27 weeks at $50.00/week from September 18, 1995 to March 29, 1996;;
12 weeks at $250/week from April 1, 1996 to June 21, 1996;
6 weeks at $100/week from September 30, 1996 to October 11, 1996.
Employee No. 7
On the Payor's payroll for:
12 weeks at $400.00/week from September 4 to November 24, 1995;
25 weeks at $50.00/week from November 27, 1995 to May 26, 1996.
[9] The Workers Joseph and Violet L. Diamond admitted assumptions (a), (b), (d) to (g) inclusive, (k) and (m) first above set out under their names and assumptions (a) and (b) of the alleged alternate determinations, but denied all other assumptions hereinabove set out.
[10] The Worker Keough admitted assumptions (a), (b), (d) to (g) inclusive, (k) and (m) first above set out under his name and assumptions (a) and (b) of the alleged alternate determination, but denied all other assumptions hereinabove set out.
[11] The Worker Goobie admitted assumptions (a), (b), (d) to (g) inclusive, (k) and (m) first above set out under his name and assumptions (a) and (b) of the alleged alternate determination, but denied all other assumptions hereinabove set out.
PRELIMINARY QUESTION
[12] At the close of the case, the Court reserved judgment. The Court was satisfied that the evidence supported contracts of service in respect to each of the Workers and proceeded to consider the alternate ground set out in the several Replies to the Appellants' Notices of Appeal. Although the language used in the several Replies is slightly different, the following excerpt from Vardy Villa Limited and the Minister of National Revenue (97-1420(UI)) is representative of the alternate ground that appears in all Replies and reads as follows:
"He submits, in the alternative, that the Worker was not engaged by the Appellant in insurable employment within the meaning of the Act for the period in question as the said employment was excepted employment within the meaning of paragraph 3(2)(c) of the Act as in accordance with paragraph 251(1)(b) of the Income Tax Act the Appellant and the Worker were factually not dealing with each other at arm's length."
[13] In the case of Tupper v. M.R.N. (1999-2889(EI)) in which I delivered judgment on February 11, 2000, the Minister based his determination on the fact that no contract of service existed between the Payor and the Worker. As in this case, the Minister in his Reply attempted to support his determination on the alternate ground of factual non-arm's length relationship. I ruled that the Minister could not argue the alternate ground as there was no such determination from which an appeal could be brought.
[14] Since I was not aware of this deficiency in this case at the close of the trial, I invited counsel to make submissions to be filed by November 30, 2000. Final briefs were received towards the middle of December.
SUBMISSIONS ON PRELIMINARY QUESTION
[15] The Appellants basically agreed with my position that no such determination was before the Court and relied on Tupper (supra).
[16] The Respondent submitted that the Court was required to review all of the evidence adduced and determine if the employment in issue was insurable and not concern itself with the reasons the Respondent made his determination. He further submitted that in any event a ruling was made by his Department in respect to the employment of the Workers Keough and Goobie by the Payor, that it was not insurable since the parties were not dealing factually with each other at arm's length.
[17] The Respondent further submitted that if the Court found that there was a contract of service, it must then consider whether the relationship created was one of arm's length.
[18] The Court file indicates that the Respondent's Department did make a ruling in respect of Roy Goobie on April 22, 1996 and in respect of David Keough on April 16, 1996 that the employment of both Workers was not insurable since they were not dealing with the Payor at arm's length. Notice of this ruling was sent to each of them and they were invited if dissatisfied with the ruling to make an Application for a Determination of a Question Regarding Insurable Employment. Both Workers filed applications.
[19] On November 18 and 20, 1996, some seven months later, both Roy Goobie and David Keough received a response to their application in the form of the Respondent's determination the second paragraph of which read as follows:
"It has been decided that this employment was not insurable for the following reason: 1) A contract of service did not exist under an employer-employee relationship."
[20] A fair and liberal interpretation of the relevant sections of the Act must be that a ruling is a preliminary finding designed to inform prospective applicants for benefits whether their employment may qualify them for such benefits or not. If dissatisfied with the ruling, they are invited to make application for a determination that by the legislation definitively and finally determines the status of their employment.
[21] The Respondent referred to a list of authorities in support.
[22] The first in chronological order was Canada (A.G.) v. Doucet (1995) 172 N.R. 374 (F.C.A.). It would appear from the report of that case, the Minister made a determination that the engagement of the applicant was not insurable employment and his stated reason was that the employment was excepted. The Tax Court of Canada found that the employment was not excepted and without further investigation set aside the Minister's determination and found that the applicant's employment was insurable.
[23] The Minister appealed and submitted that even if the Tax Court was correct and found that the employment was not excepted it could not then conclude that the employment was insurable without further investigation. In other words, finding the employment was not excepted was not a finding that it was insurable. The Judge of the Tax Court should have found the employment insurable and given reasons in support of that finding.
[24] The Federal Court of Appeal after reviewing all of the evidence held that the employment was in fact excepted and reversed the Judgment of the Tax Court. Marceau, J.A. who wrote the judgement for the majority then said at pages 379-380:
"I would add, although it is not necessary to dispose of the action, that the second ground of objection raised bv the applicant, one of law, also appears to me to be valid The applicant is right to say that the judge could not, based solely on the conclusion that the employment was not excepted, at once aver that the employment was insurable. In his written pleadings the Minister had indicated that in any case, excepted or not, the employment on the basis of which the respondent was claiming benefits was not one which corresponded to the definition of s. 3(1)(a) of the Act, in short that it was not an employment resulting from a contract of service. The judge could not refuse to consider this allegation on the ground that it was not mentioned by the Minister in his initial reply to the Respondent telling him that his employment with Exolab Inc. was not insurable. It is the Minister's determination which was at issue before the judge, and that determination was strictly that the employment was not insurable. The judge had the power and duty to consider any point of fact or law that had to be decided in order for him to rule on the validity of that determination. This is assumed by s. 70(2) of the Act [...] and s. 71(1) of the Act [...] so provides immediately afterwards, and this is also the effect of the rules of judicial review and appeal, which require that the gist of a judgment, which is all that is directly at issue, should not be confused with the reasons given in support of it."
[25] Subsection 70(2) of the Act reads as follows:
"On an appeal under this section, the Tax Court of Canada may reverse, affirm or vary the determination, may vacate, confirm or vary the assessment or may refer the matter back to the Minister for reconsideration and reassessment, and shall thereupon in writing notify the parties to the appeal of its decision and the reasons therefore."
[26] Subsection 71(1) of the Act reads as follows:
"The Minister and the Tax court of Canada have authority to decide any question of fact or law necessary to be decided in determining any question or reconsidering any assessment required to be determined or reconsidered under section 61 or 70 and to decide whether a person may be or is affected thereby, and, except as provided in this Act, the decision of the Minister, or the decision of the Tax Court of Canada, as the case may be, is final and binding for all purposes of this Act."
[27] I have reviewed the reasons in Doucet (supra) but do not agree that the ratio in that case stands for the proposition that the Respondent suggests. The Court is not saying that the reasons are not important but that the Court must make a determination that the employment is either insurable or not insurable. Making a finding that the employment is not excepted does not achieve that result. The fact that the employment is not excepted does not mean that it is insurable within the provisions of the Act. The Court said that the Tax Court was required to continue its consideration and make a determination whether the employment was insurable or not. It is that decision which was followed in the other authorities referred to by the Respondent, namely, Canada v. Schnurer Estate (C.A.), [1997] 2 F.C. 545 and Barrette c. Canada (ministre du Revenu national - M.R.N.) (C.A.F.), [1994] A.C.F. No. 499, no d'appel A-187-93 both decisions of the Federal Court of Appeal.
[28] In Candor Enterprises Limited and the Minister of National Revenue Docket: A-636-98 a judgment delivered at Ottawa on December 15, 2000, the issue before the Federal Court of Appeal was whether two periods of employment by Candor of a Mr. Pentz, the husband of the sole shareholder of Candor, was insurable.
[29] In respect to the first period of employment, April 29, 1996 to December 17, 1996, the Minister determined that the parties were not dealing at arm's length and therefore the employment was excepted. In the alternative he determined that the employment was not insurable as there was no contract of service and therefore no employer/employee relationship.
[30] In respect to the second period January 6, 1995 to January 6, 1996, the Minister determined that the employment was not insurable because there was no contract of service between the company and the husband and therefore no employer/employee relationship.
[31] On appeal the Tax Court found that there was no employer/employee relationship during each period of employment as there was no contract of service and dismissed the appeal. The Federal Court of Appeal confirmed the Tax Court judgment and dismissed the appeal.
[32] During the appeal before the Federal Court of Appeal, a number of issues were argued with respect to subparagraph 3(2)(c)(ii) of the Act. Sharlow, J.A. who delivered the judgment for the majority said at page 13 of the original judgment:
"[32] The existence of a contract of service does not determine the insurability of employment in every case. Where the employee and the employer are "related" to each other within the meaning of the Income Tax Act, R.S.C. 1985, c.1, (5th supp), a further question arises under subparagraph 3(2)(c)(ii) ..."
[33] Continuing he said:
"[33] There is no doubt that in this case Mr. Pentz and Candor were "related" during the periods in question because he was the spouse of Candor's sole shareholder. Therefore, if the Minister had concluded that there was a contract of service, the Minister was required to consider subparagraph 3(2(c)(ii). Or, if the Minister had determined that there was no contract of service, he could have determined in the alternative that if there was a contract of service, by virtue of subparagraph 3(2)(c)(ii), the employment was "excepted employment": M.N.R. v. Schnurer Estate, [1997] 2 F.C. 545, (1997), 208 N.R. 339 (F.C.A.).
[34] This excerpt confirms my understanding of Doucet (supra).
[35] Sharlow, J.A. continued:
"[34] In fact, the Minister's letter dated August 1, 1996 indicates that the Minister made these alternative determinations with respect to the period between January 6, 1995 to January 6, 1996. However, the Minister's letter dated May 5, 1997, which relates to the period between April 29 to December 17, 1996, says nothing about subparagraph 3(2)(c)(ii). For that period, subparagraph 3(2)(c)(ii) is raised for the first time in the Minister's pleadings filed in the Tax Court in response to the notices of appeal.
[36] After canvassing the law as it relates to the duty and responsibility of the Tax Court in considering an appeal where the section is applicable and in particular the two most recent cases of Légaré v. Canada (Minister of National Revenue - M.N.R. [1999] 246 N.R. 176 (F.C.A.) and Pérusse v. Canada (Minister of National Revenue - M.N.R.), [2000] F.C.J. No. 310 (F.C.A.) which in my view expands the duty and responsibility of the Tax Court as set out in Tignish Auto Parts Inc. v. Canada (Minister of National Revenue - M.N.R.), [1994] 185 N.R. 73 (F.C.A.) and Canada (Attorney General) and Jencan Ltd. (C.A.), (1997) 215 N.R. 352.
[37] Sharlow J.A. continued:
"[38] Regardless of the characterization of the Minister's determination under subparagraph 3(2)(c)(ii) or the approach to be taken by the Tax Court in an appeal of such a determination, it seems clear that the question of the application of subparagraph 3(2)(c)(ii) is not properly before the Tax Court, unless the question posed in that provision is first determined by the Minister. That suggests, in my view, that the Minister should not raise subparagraph 3(2)(c)(ii) for the first time in the pleadings filed in response to an appeal to the Tax Court, because there will have been no determination by the Minister from which an appeal can be brought.
[39] It would follow in this case, if the Tax Court Judge had found that there was a contract of service, he should have allowed the appeal with respect to the period April 29, 1996 to December 17, 1996, because for that period there was no Ministerial determination under subparagraph 3(2)(c)(ii) for him to consider. As there was a Ministerial determination under subparagraph 3(2)(c)(ii) for the earlier period, January 6, 1995 to January 6, 1996, the Tax Court Judge would have been obliged to consider the appeal from the decision if he had found that there was a contract of service.
[38] The second authority advanced by the Respondent was M.N.R. v. Schnurer Estate, (supra). In Schnurer, the Minister had determined that there was no insurable employment because there was no contract of service. In the alternative he determined that the employment of the husband was excepted because the parties were related and no arm's length relationship existed.
[39] The Tax Court found that because the grounds on which the determination was made were mutually exclusive, the Minister must have concluded that there was in fact a contract of service. The Federal Court of Appeal applied Doucet (supra) and found that the Tax Court could not find that a contract of service was implied and had a duty to find as a fact that there was a contract of service and then find whether the employment supported by that contract was insurable. The Court referred the matter back to the Tax Court to be tried by a different judge.
[40] Having found that there was a contract of service, I am now in a position to consider whether the employment is insurable, there being no other determination before me to consider.
FACTS
[41] The Payor contracted with the Government of Newfoundland/Labrador to convey children to schools by bus.
[42] It hired bus drivers at various times and at various rates of pay, specified the routes they were to follow and provided them with buses. All of the Workers were employed during the periods in question on the same basis in that at some time during those periods, they worked for twelve consecutive weeks as full-time employees at a full-time wage rate. At all other times during those periods they were in receipt of unemployment insurance benefits and continued to work but at a rate of pay within that permitted by the Act for people working and drawing benefits at the same time.
[43] The rates of pay of the Workers differed. However all, with the exception of Worker Goobie, were placed on full-time employment during the months of April, May and June of the periods in question and laid off for the summer. They were rehired in September through the following April as part time while in receipt of unemployment insurance benefits.
[44] Worker Goobie was hired full time during the period August to November because of special skills which he possessed, was then hired par time until June while in receipt of unemployment benefits and then presumably would have been rehired the following August.
DECISION
[45] All of the Workers testified and described their duties. Based on that evidence it was clear to me that during both their full-time and part-time work they were employed under contract of service. They were bus drivers, were given routes to run and buses to drive by the Payor and were under the control of the Payor as much as they could possibly be.
[46] In making this finding, I concluded as follows:
1. In respect to the appeal of Vardy Villa Limited, Joseph and Violet L. Diamond, their evidence demolished assumptions (i), (l) and (n), that assumption (c) was only denied because the routes were inaccurately described and that assumption (j) was irrelevant. Assumption (h) may have been relevant if the Court was considering a subparagraph 3(2)(c) issue but is irrelevant in considering a 3(1)(a) issue since the only thing that changed was the amount of the fixed periodic wage. The pre-arranged working hours and specific directions of the work to be done were still features of the employment.
2. In respect to the appeal of Vardy Villa Limited and Roy Goobie, their evidence demolished assumptions (i), (l), (m) and (n), that assumption (c) was only denied because the routes were inaccurately described and assumption (j) was irrelevant. Assumption (h) is also irrelevant for the same reason expressed in 1. above.
3. In respect to the appeal of Vardy Villa Limited and David Keough, their evidence demolished assumptions (i), (l) and (n), that assumption (c) was only denied because the routes were inaccurately described and assumption (j) was irrelevant. Assumption (h) is also irrelevant for the same reason expressed in 1. and 2. above.
[47] In all of the above findings, the Payor and the Workers established a prima facie case and the Respondent led no evidence contra.
[48] Had I had the jurisdiction to consider the alleged alternate determination, I would have found that the employment was not insurable as the Payor and the Workers were not in factual arm's length relationships.
[49] The Court finds that the Workers employment during the periods in question was insurable, grants the appeals and vacates the Respondents' determinations.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
"M.F. Cain"
D.J.T.C.C.
COURT FILE NO.: 97-1418(UI), 97-1420(UI), 97-1421(UI) and
97-1422(UI)
STYLE OF CAUSE: Vardy Villa Limited and M.N.R.
PLACE OF HEARING: Gander, Newfoundland
DATE OF HEARING: July 13, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge M.F. Cain
DATE OF JUDGMENT: February 5, 2001
APPEARANCES:
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
COUNSEL OF RECORD:
For the Appellant:
Name: Greg K. Pittman
Firm: Mills, Hussey & Pittman
Clarenville, Newfoundland
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 96-2493(UI)
STYLE OF CAUSE: Roy Goobie and M.N.R.
PLACE OF HEARING: Gander, Newfoundland
DATE OF HEARING: July 13, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge M.F. Cain
DATE OF JUDGMENT: February 5, 2001
APPEARANCES:
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
COUNSEL OF RECORD:
For the Appellant:
Name: Greg K. Pittman
Firm: Mills, Hussey & Pittman
Clarenville, Newfoundland
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 97-33(UI)
STYLE OF CAUSE: Violet L. Diamond and M.N.R.
PLACE OF HEARING: Gander, Newfoundland
DATE OF HEARING: July 13, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge M.F. Cain
DATE OF JUDGMENT: February 5, 2001
APPEARANCES:
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
COUNSEL OF RECORD:
For the Appellant:
Name: Greg K. Pittman
Firm: Mills, Hussey & Pittman
Clarenville, Newfoundland
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE NO.: 97-34(UI)
STYLE OF CAUSE: Joseph Diamond and M.N.R.
PLACE OF HEARING: Gander, Newfoundland
DATE OF HEARING: July 13, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge M.F. Cain
DATE OF JUDGMENT: February 5, 2001
APPEARANCES:
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
COUNSEL OF RECORD:
For the Appellant:
Name: Greg K. Pittman
Firm: Mills, Hussey & Pittman
Clarenville, Newfoundland
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE NO.: 97-263(UI)
STYLE OF CAUSE: David Keough and M.N.R.
PLACE OF HEARING: Gander, Newfoundland
DATE OF HEARING: July 13, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge M.F. Cain
DATE OF JUDGMENT: February 5, 2001
APPEARANCES:
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
COUNSEL OF RECORD:
For the Appellant:
Name: Greg K. Pittman
Firm: Mills, Hussey & Pittman
Clarenville, Newfoundland
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
97-1418(UI)
97-1420(UI)
97-1421(UI)
97-1422(UI)
BETWEEN:
VARDY VILLA LIMITED,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeals heard on common evidence with the appeals of Roy Goobie (96-2493(UI)), Violet L. Diamond (97-33(UI)), Joseph Diamond (97-34(UI)) and David Keough (97-263(UI)), on July 13, 2000, at Gander, Newfoundland, by
the Honourable Deputy Judge M.F. Cain
Appearances
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
JUDGMENT
The appeals are allowed and the decisions of the Minister are vacated in accordance with the attached Reasons for Judgment.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
|
"M.F. Cain" |
D.J.T.C.C.
96-2493(UI)
BETWEEN:
ROY GOOBIE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Vardy Villa Limited (97-1418(UI), 97-1420(UI), 97-1421(UI) and 97-1422(UI)), Violet L. Diamond (97-33(UI)), Joseph Diamond (97-34(UI)) and David Keough (97-263(UI)), on July 13, 2000, at Gander, Newfoundland, by
the Honourable Deputy Judge M.F. Cain
Appearances
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
|
"M.F. Cain" |
D.J.T.C.C.
97-33(UI)
BETWEEN:
VIOLET L. DIAMOND,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Vardy Villa Limited (97-1418(UI), 97-1420(UI), 97-1421(UI) and 97-1422(UI)), Roy Goobie (96-2493(UI)), Joseph Diamond (97-34(UI)) and David Keough (97-263(UI)), on
July 13, 2000, at Gander, Newfoundland, by
the Honourable Deputy Judge M.F. Cain
Appearances
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
|
"M.F. Cain" |
D.J.T.C.C.
97-34(UI)
BETWEEN:
JOSEPH DIAMOND,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Vardy Villa Limited (97-1418(UI), 97-1420(UI), 97-1421(UI) and 97-1422(UI)), Roy Goobie (96-2493(UI)), Violet L. Diamond (97-33(UI)) and David Keough, on
July 13, 2000, at Gander, Newfoundland, by
the Honourable Deputy Judge M.F. Cain
Appearances
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
|
"M.F. Cain" |
D.J.T.C.C.
97-263(UI)
BETWEEN:
DAVID KEOUGH,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Vardy Villa Limited (97-1418(UI), 97-1420(UI), 97-1421(UI) and 97-1422(UI)), Roy Goobie (96-2493(UI)), Violet L. Diamond (97-33(UI)) and Joseph Diamond (97-34(UI)), on July 13, 2000, at Gander, Newfoundland, by
the Honourable Deputy Judge M.F. Cain
Appearances
Counsel for the Appellant: Greg K. Pittman
Counsel for the Respondent: Caitlin Ward
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Rothesay, New Brunswick, this 5th day of February 2001.
|
"M.F. Cain" |
D.J.T.C.C.