Date: 20010718
Docket: 2000-1182-EI
BETWEEN:
ANH PHUONG HOANG TRONG,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Charron, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on April 19, 2001, to determine whether the appellant held insurable employment within the meaning of the Employment Insurance Act ("the Act") from October 30, 1996, to October 17, 1997, when she was employed by the payer, Les Aliments Dang Ngoc Inc.
[2] By letter dated December 7, 1999, the Minister of National Revenue ("the Minister") informed the appellant that her employment was not insurable because there was no employer-employee relationship between her and the payer during the period at issue.
Facts
[3] The facts on which the Minister relied in making his decision are set out as follows in paragraph 5 of the Reply to the Notice of Appeal:
[TRANSLATION]
(a) the payer was incorporated in December 1987; (admitted)
(b) until March 1997, the payer's shareholders were:
Buu Dang Ngoc 25% of the shares
Chau Dang Ngoc 25% of the shares
Dang Ngoc 25% of the shares
Orlando Filice 25% of the shares;
(admitted)
(c) the appellant is the spouse of Buu Dang Ngoc and the sister-in-law of Chau Dang Ngoc and Dang Ngoc; (admitted)
(d) the allotment of shares changed on or about March 1, 1997, and from that point Orlando Filice held 51 percent of the shares and the three Ngoc brothers held 49 percent; (admitted aside from the date)
(e) the payer operated a business that made Chinese and Vietnamese food; (admitted)
(f) the work allegedly done by the appellant involved entering data from customer invoices and doing filing; (admitted)
(g) in reality, the appellant did not provide any services to the payer; (denied)
(h) on October 17, 1997, the payer gave the appellant a record of employment for the period from October 30, 1996, to October 17, 1997, indicating that she had 1,444 insurable hours (admitted) and total insurable earnings of $11,901.60; (no knowledge)
(i) the record of employment is false; (denied)
(j) the payer and the appellant made an arrangement so that the appellant could qualify for employment insurance benefits. (denied)
[4] The appellant admitted the truth of all the subparagraphs of paragraph 5 of the Reply to the Notice of Appeal except those she denied, as indicated in parentheses at the end of each subparagraph.
Testimony of Hoang Trong
[5] Ms. Hoang worked as a secretary and prepared and filed customer invoices. She worked for the payer from October 30, 1996, to October 17, 1997, with her husband, and she kept her two-year-old child with her. Her workday was from 10:00 a.m. until between 5:00 and 6:00 p.m., depending on when her husband left. Her workweek was 40 hours, for which she was paid $300. She was laid off on October 17, 1997 (Exhibit I-1) because she was pregnant. Her wages were given not to her but to her husband because she had no bank account, having arrived in Canada in 1991. Whenever she did not finish her work, she took it home to finish it. Her husband drove her to work by car. At work, she shared her husband's office. On March 30, 1998, she gave a declaration to Mr. Bergeron, an investigation and control officer, which she admits having signed (Exhibit I-2). At question 4, she admitted that she did not have a caregiver for her child; she therefore took him with her and left him in his father's office. At question 5, she said that she worked from noon to 6:00 p.m. She corrected this and said that she worked from 10:00 a.m. to 6:00 p.m. At question 7, she said that her husband controlled her money.
Testimony of Nguyen Thi Ngoc Huong
[6] Ms. Thi was a manager for the payer, Les Aliments Dang Ngoc Inc. She worked for the payer from October 1996 to October 1997 and was in charge of the bookkeeping, the invoicing, the payroll and the entire office. She knows Ms. Hoang well because she is her sister-in-law and because Ms. Hoang also worked for the payer and came to the office every day, but for just a few hours. Ms. Hoang worked at home in the evenings and at the office five days a week prior to June 1997. After that date, the payer moved to 933 St-Martin in Laval and Ms. Hoang no longer came to the office very often because she was pregnant. Ms. Thi paid the employees not by the hour but by the week. Box 15A of Exhibit I-1 indicates that Ms. Hoang worked 1,444 insurable hours, but that information has been out of date since January 1997. However, it is true that her total earnings were $11,901. She worked 40 hours a week, but her hours were not monitored. It was Ms. Hoang who asked that a record of employment be filled out for her. On March 6, 1998, Ms. Thi met with an investigator and made a declaration, which she signed (Exhibit I-3). On the third line of page 5 of the document, she stated the following:
[TRANSLATION]
. . . I say that she came three times a week . . . that she came two or three afternoons a week and worked a few hours, obviously after June 1997, that is, in July 1997. . . .
Further on, she said:
[TRANSLATION]
. . . She worked 10 hours a week at the most. . . .
On page 6 of the declaration, Ms. Thi added:
[TRANSLATION]
. . . No matter how many hours she worked—whether it was five hours or one hour in a week—the Caisse populaire . . . Desjardins indicated 40 hours. . . .
Finally, on page 7, Ms. Thi finished off as follows:
[TRANSLATION]
. . . I admit all the same that she never worked. . . .
Testimony of Roger Boucher
[7] Mr. Boucher was manager of the payer's business and worked for the payer from October 1996 to October 1997. He was a travelling sales representative for the payer. He worked from 7:00 a.m. to 5:00 p.m. and knew Ms. Hoang. He saw her arriving at the office with her child at about 2:00 p.m. According to this witness, the appellant lay down with the child in the office of her husband, who was one of the company's presidents; she stayed there and slept with the child. The witness said that [TRANSLATION] "she just put in an appearance and didn't work. We couldn't talk to her because she didn't speak either English or French." Mr. Boucher never her working even though she was being paid: [TRANSLATION] "We saw her at the payer's office once a week at the most".
Testimony of Michelle Nault
[8] Michelle Nault was an accounts receivable clerk at the payer company. She worked from 8:30 a.m. to 5:00 p.m. She knew Ms. Hoang and said that Ms. Hoang came to the office for about half an afternoon a week with her child, who was around a year old. When she arrived, she went into her husband's office and spent the afternoon there. Sometimes she visited her sister-in-law in the next office and then left. She did not do anything in her husband's office. Michelle Nault was told that Ms. Thi, Ms. Hoang's sister-in-law, completed Ms. Hoang's record of employment and that it was later revoked because it was acknowledged that Ms. Hoang had not actually worked. She was paid but hardly worked, and her wages were put into her account by direct deposit.
Testimony of Jean-Guy Bergeron
[9] Jean-Guy Bergeron is an investigation and control officer. After receiving an information from Orlando Filice and Roger Boucher, he went to the payer's head office and met with those two men. He obtained a statutory declaration from Mr. Ngoc (Exhibit I-7), who told him that his wife came to the office three times a week with her baby, who was a year and a half old. When Ms. Hoang came to the office, Mr. Ngoc and Ms. Hoang shared the childcare duties. Mr. Filice told Mr. Bergeron that Ms. Hoang never worked at the office. According to Ms. Thi, Ms. Hoang came to the office with her baby on rare occasions and did not come to work. Ms. Thi was the payer's controller and was in charge of preparing records of employment and entering accounting data in the books. She signed records of employment for periods that had not been worked and those records were therefore fraudulent. As a result, the board of referees requested that a $25,000 penalty be imposed on her.
Testimony of Françoise Bienvenue
[10] Ms. Bienvenue, an objections officer, said that the Caisse populaire de Vimont received a weekly direct deposit from Les Distributions Alimentaires Dang Ngoc Inc. into Mr. Ngoc's account (folio 32084) for Hoang Trong Anh Phuong. The deposits covered the period from May 1997 to October 1997 (nine payments of $272.23 and 12 payments of $326.06) (Exhibit I-8 dated November 17, 1999).
Analysis of the facts in relation to the law
[11] It must now be determined whether the appellant's activities fall within the concept of insurable employment, that is, whether or not there was a contract of employment.
[12] The courts have established four essential tests for identifying a contract of employment. The leading case in this area is City of Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. Those tests are as follows: (1) control; (2) ownership of the tools; (3) chance of profit and risk of loss; and (4) degree of integration—this last test having been added by the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553. This list is not exhaustive, however.
[13] The evidence showed that the appellant's work was not done under anyone's supervision and that there was no relationship of subordination between her and the payer.
[14] Any agreement or arrangement setting out terms for the payment of remuneration based not on the time or the period during which the paid work is performed but on other objectives, such as taking advantage of the Act's provisions, is not in the nature of a contract of service.
[15] Moreover, there is no room for other considerations such as generosity or accommodation. It has often been said that employment insurance is a social initiative to assist those who truly lose their jobs and not a program of grants to help businesses or to benefit recipients who distort or modify the structure and terms of payment of the remuneration they are owed for the work they perform.
[16] Any agreement or arrangement involving the accumulation or spreading out of hours has the effect of invalidating the contract of service, especially since it creates a contractual relationship that is hardly or not at all conducive to the existence of a relationship of subordination, which is an essential component of a contract of service.
[17] The burden is on the appellant to prove her entitlement, and she has not discharged that burden to the Court's satisfaction. On the contrary, she has made false representations.
[18] Therefore, the appeal is dismissed and the Minister's decision confirmed.
Signed at Ottawa, Canada, this 18th day of July 2001.
|
"G. Charron" |
D.J.T.C.C.
COURT FILE NO.: 2000-1182(EI)
STYLE OF CAUSE: Anh Phuong Hoang Trong and M.N.R.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 19, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge G. Charron
DATE OF JUDGMENT: July 18, 2001
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Sophie Alain
Marie-Aimée Cantin
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-1182(EI)
BETWEEN:
ANH PHUONG HOANG TRONG,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on April 19, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge G. Charron
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Sophie Alain
Marie-Aimée Cantin
JUDGMENT
The appeal is dismissed and the Minister's decision confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of July 2001.
|
"G. Charron" |
D.J.T.C.C.