Date: 20001107
Docket: 1999-4135-EI
BETWEEN:
PIERRETTE LEBEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor Judgment
Lamarre Proulx, J.T.C.C.
[1] The issue is whether, during the periods from May 20 to June 21, July 1 to August 23 and September 2 to 6, 1996, the appellant was employed by Maxi Plus Déboisement Inc. in insurable employment within the meaning of paragraph 3(2)(c) of the Unemployment Insurance Act (the "Act") for the time prior to June 30, 1996, and within the meaning of paragraph 5(2)(i) and subsection 5(3) of the Employment Insurance Act as of June 30, 1996.
[2] In her Notice of Appeal, the appellant also advanced the legal argument that the Minister of National Revenue (the "Minister") did not comply with the rules of natural justice.
[3] The facts on which the Minister relied in making his decision are set out in paragraph 5 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) The payer, which was incorporated on June 6, 1990, operated a sawmill at Biencourt and owned a building and equipment.
(b) During the period in issue, the voting shares of the payer were allocated as follows:
Vianney Dubé, the appellant's de facto spouse, 70 percent of the shares;
Alain Caron, 30 percent of the shares.
(c) Since 1990, Vianney Dubé had been the only manager responsible for the payer's day-to-day operations.
(d) The appellant worked for the payer as a "bookkeeper"; more specifically, she performed the following duties: doing the computerized bookkeeping, preparing the pays and making the remittances, handling the billing, the mail and the bids, answering the telephone, and informing customers of prices.
(e) The appellant performed her duties in an office fitted up in the basement of the family home.
(f) The appellant had no work schedule to meet; she said she had worked 40 hours a week during the periods in issue and none between or outside those periods.
(g) The appellant was paid $435.47 a week in 1993, nothing in 1994 and $291.20 a week starting in 1995 as a result of the payer's lack of cash assets.
(h) During the periods in issue, Vianney Dubé, principal shareholder of the payer and the person in charge of its day-to-day activities, received only three weeks' wages, at $291.30 a week, in August 1996.
(i) Vianney Dubé was unable to perform the duties of the appellant, who claimed that no one had replaced her between, before or after the periods in issue.
(j) The appellant says that during the periods in issue, which were all in 1996 and totalled 14 weeks, she worked 40 hours a week, yet the payer was operated on a continuous basis throughout the summer season (from May to October).
(k) There was an arrangement between the parties for the sole purpose of enabling the appellant to draw unemployment insurance benefits.
[4] Vianney Dubé, the appellant and Laval Mailhot, a director at the Canada Customs and Revenue Agency ("CCRA"), testified at the request of counsel for the appellant. Dyane Fortin, an appeals officer, testified at the request of counsel for the respondent.
[5] Subparagraphs 5(a) to (e), (g) and (h) of the Reply were admitted and paragraphs 5(f), (i), (j) and (k) denied.
[6] Vianney Dubé explained that from 1990 to 1994 he had a small forest clearing and chemical spraying business called Maxi Plus Déboisement Inc., the payer in the instant case. In 1995, the business focused solely on lumber and ceased the services part of its activities. The business purchased for $25,000 sawing machinery, which it transported on a large flatbed semi-trailer. Other equipment and machinery had to be purchased as well. The tractor alone cost $125,000 and was used to generate power. Buildings were constructed at a cost of $12,000. All this required nearly a year and a half of preparations.
[7] The business obtained a $27,000 grant from the Société québécoise de développement de la main-d'oeuvre ("S.Q.D.M."). The grant was allocated over three years. The Department of Natural Resources provided it with the services of a lumber professional at an hourly rate of $25. By 1997, the initially estimated costs had practically doubled. The business ran short of funds in 1997 and declared bankruptcy in 1999.
[8] The S.Q.D.M. had provided the services of a person to adapt to the sawmilling business's needs some software to be used for inventory purposes. That person stayed a week and provided assistance on call.
[9] An office was fitted up in the basement of the residence and was equipped with a fax machine, a telephone and filing cabinets. The appellant did the bookkeeping there. She went to the sawmill on Fridays. She noted the status of the inventory with Mr. Dubé and returned to the office to make the entries.
[10] The business had a few employees in 1996: Yvan Lebrun from June 3 to July 26, Alain Caron from August 5 to 30, Germain Kirouac from May 20 to June 21 and from July 1 to 5, Marco Sirois from June 24 to August 23, from September 2 to October 11 and from October 21 to 25, Jean-Marie Sirois from June 24 to August 23 and from September 2 to October 25. Their records of employment were filed as Exhibit A-1.
[11] Mr. Dubé filed the appellant's contract of employment as Exhibit A-2. It reads as follows:
[TRANSLATION]
Maxi Plus Déboisement inc.
41 Principale
Lac Des Aigles
G0K 1V0
May 15, 1996
Subject: Contract of Employment between Pierrette Lebel, employee, and Maxi Plus Déboisement inc., employer
I am hiring Pierrette Lebel to start work as a secretary on May 19, 1996.
She will be paid $7.00 an hour for a 40-hour week, from 8:30 a.m. to 5:30 p.m., with one unpaid hour for lunch.
Her work will consist of performing all secretarial duties: taking care of the pays, doing the bookkeeping, answering the telephone, making deposits at the credit union, paying accounts payable, answering the mail, closing the books, taking inventory at the sawmill on Fridays and entering it in the computer.
(signed)
Vianney Dubé
President
[12] In cross-examination, the witness admitted that the appellant had signed records of employment (Exhibit A-1) in periods during which she was supposed to have been laid off, for example, on August 29, 1996. He had asked her to do some jobs without remuneration, which took perhaps seven or eight hours a week. That was during times when the sawmill machinery was undergoing repairs. There remained nothing at all to do other than the separation certificates.
[13] Mr. Dubé and the appellant could sign the cheques. The appellant did the pays. The grant applications were completed by Mr. Dubé and the appellant.
[14] The appellant testified that she had monitored the timber shipments, received and paid the invoices from the timber carriers and completed the grant applications. She explained that she had done the bookkeeping, prepared the invoices and entered the inventory and that she had helped her spouse outside her periods of employment.
[15] During her testimony, the appellant filed as Exhibit A-3 her records of employment from the periods in issue. In addition to the records of employment for the periods in issue, she filed one for the period from September 30 to October 25, 1996. This last period is not in issue and the appellant had never previously mentioned it. In cross-examination, the appellant admitted that the claim for unemployment insurance benefits (Exhibit I-3) is dated September 17, 1996 and signed by her.
[16] The appellant testified that her lawyer, not she, had asked to have her file transferred from the Québec office to Montréal and she said she did not know why. The letter of January 13, 1998 from the appellant's counsel making that request and accompanied by a power of attorney from the appellant, was filed as Exhibit I-5. A letter of January 21, 1998 from Revenue Canada to the appellant asking her why she had made such a request, with a certified true copy to her lawyer, was filed as Exhibit I-4. On January 27, 1998, a reply came from counsel for the appellant (Exhibit I-6) stating the following: [TRANSLATION] ". . . our client wishes to transfer her file to Montréal to avoid additional costs."
[17] A letter dated February 4, 1998 from the Assistant Director of Appeals, Laval Mailhot, was filed as Exhibit I-7. That letter states the following:
[TRANSLATION]
. . .
We wish to inform you that the appellant's originating office must handle the appeal application. In this case, the appellant and the payer both live in our area.
We have analyzed the reason stated in your application and should provide you with the following information:
Our office ensures that the cases of all its clients are handled as expeditiously as possible. To facilitate communication and avoid additional costs for its clients and their representatives, our office has toll-free telephone lines (1-800-236-9649) linked directly to the Income Tax Appeals Division. In addition, to expedite the process and satisfy our clientele, a representative of the Department can easily travel to meet you and all the parties to the appeal to discuss the appeal.
In light of the above, we have come to the conclusion that your client's application will be handled at our office. Considering all the options we offer our clients, this decision should not result in additional costs to Ms. Lebel.
[18] On February 23, 1998, Dyane Fortin sent a letter to counsel for the appellant (Exhibit I-8) asking him to contact her by telephone to schedule for no later than March 20, 1998 an interview with his client for the purpose of determining whether the employment held by Pierrette Lebel was insurable. On March 23, 1998, Ms. Fortin was sent a reply from counsel for the appellant (Exhibit I-9) stating that he and his client would be prepared to meet her on April 3. Ms. Fortin sent a letter dated March 30, 1998 (Exhibit I-10) to counsel for the appellant advising him that the interview would be held on April 3 at 10:00 a.m. and that she expected Ms. Lebel to be there. In a letter dated April 1, 1998 (Exhibit I-11) sent by fax, counsel for the appellant informed Ms. Fortin that he would not be free on Friday, April 3. He asked her to contact him to set a new date. In a letter dated April 7, 1998 (Exhibit I-12), Ms. Fortin asked counsel for the appellant to contact her to agree on a new date—no later than April 24—and time for an interview with Ms. Lebel. Failing a reply to her request by April 17, she would be forced to complete her handling of the files based on the information obtained to that point.
[19] On April 9, 1998, counsel for the appellant wrote to the Minister (Exhibit I-13), stating:
[TRANSLATION]
. . .
In this case, we have only recently begun representing her interests in an insurability matter. As is our habit, we have asked that our client's case be transferred from the Québec appeals division to that in Montréal.
However, the Québec appeals division refuses to transfer Ms. Lebel's case to the Montréal appeals division.
The Québec division refuses to give serious reasons for its decision but is prepared to send an appeals officer to Montréal to hear representations in this case.
Although we felt that this was not a very judicious use of public funds, we were prepared to agree to this rather unusual procedure. We are, however, somewhat uncomfortable with the Québec appeals division's insistence on handling our client's case at all costs and we ask you to intervene to have the Québec appeals division grant our client's request and transfer her case to the Montréal appeals division.
[20] On June 10, 1998, the Minister replied (Exhibit I-14) through the Assistant Deputy Minister at the Appeals Branch:
[TRANSLATION]
. . .
I understand your request. However, the Department is attempting to restrict case transfers as much as possible in order to ensure better service and provide more effective case management. The appellant's place of residence generally determines which office will handle the case.
In this insurability matter, the payer and the worker are already dealing with the Québec Tax Services Office, and that office ensures that cases are handled as quickly as possible. To facilitate communication and avoid additional costs to clients, the CPP/EI Appeals Division may be contacted toll-free at 1-800-236-9646. In addition, to expedite decision-making, the Québec Tax Services Office offers the option of having an appeals officer travel to meet all the parties to the case.
[21] On July 7, 1998, counsel for the appellant sent a letter (Exhibit I-15) to the Deputy Minister of National Revenue stating:
[TRANSLATION]
. . .
First, your letter in no way answers the questions we raised with respect to the fear we expressed in our letter of April 9, 1998 that the rules of natural justice were being breached.
It also fails to answer our question about the use of public funds in this case.
We believe it would be much less costly to transfer our client's case to Montréal than to send an officer from Québec there.
. . .
[22] On September 9, 1998, the Deputy Minister replied (Exhibit I-16):
[TRANSLATION]
. . .
I understand your fear regarding a breach of the rules of natural justice. However, I can assure you that the Department's officers apply the employment insurance rules in a fair and equitable manner, conducting a careful examination of the circumstances of each case before issuing a decision.
Another priority of the Department is to use public funds as economically and effectively as possible. On the whole, case transfer requests result in additional staff training and personnel management costs, as well as additional case management and transfer costs, for the Department. They also hinder our efforts to close files as quickly as possible in view of the impact our decisions have on the Department of Human Resources Development, which administers the payment of employment insurance benefits. It is therefore essential that the Department limit case transfers as much as possible.
[23] From October 21, 1998 to September 22, 1999, there was an exchange of nine further letters (Exhibits I-17 to I-25) repeating the same things. Exhibit I-25 is a letter from Mr. Mailhot, Chief of Appeals, dated September 22, 1999, refusing to transfer the case and stating that it will be handled by the Québec office. On that same date, September 22, 1999, the Minister's ruling on the appeal from the Minister's decision (Exhibit I-26) was sent to the appellant. It is that ruling that is under appeal here.
[24] Dyane Fortin was examined by counsel for the appellant. Her CPT-110 report was filed as Exhibit A-4. That report was prepared for the purposes of the Minister's decision which had to be made regarding the decision by the insurability officer. This latter decision, dated October 18, 1996, was filed as Exhibit I-27. It was made in response to a request to the Minister from Human Resources Development Canada for a decision as to whether the appellant's employment during the periods in issue was insurable. An application to appeal the decision of October 18, 1996, received on October 31, 1996, was filed by counsel for the appellant, who is not the current counsel of record.
[25] Ms. Fortin explained that the appeal file was assigned to her because it was noted when the files were registered that she had in fact been the officer responsible for the appellant's files for the two previous periods. She communicated with counsel for the appellant by telephone and asked him whether the appellant had worked under the same conditions of employment as in 1993 and 1995, the period under appeal before this Court. She asked him whether he wanted Ms. Lebel and Mr. Dubé to be re-examined or whether he preferred that the entire matter be put in abeyance pending the hearing of the appeal for the previous years. Counsel informed her that he preferred that the matter be suspended until judgment had been given. Judgment was rendered on June 9, 1997, dismissing the appeal.
[26] The case came back to the Department on October 23, 1997. Ms. Fortin contacted counsel for the appellant, but did not obtain a reply from him. She then contacted Ms. Lebel on October 27, 1997. Ms. Lebel told her at that time that she had worked under virtually the same conditions as during the previous years. On October 30, Ms. Lebel called her back to say that Annick Bédard was her new legal representative. On November 14, Ms. Fortin received a letter from Ms. Bédard; she subsequently received another informing her that she was withdrawing from the case and that it was being transferred to the appellant's current counsel.
[27] Ms. Fortin explained that, given the facts described in paragraphs [17] to [24] of these reasons, it was impossible for her to communicate with the appellant. She therefore examined the insurability file to see which terms and conditions might be different from those for the previous period. She saw none.
[28] Laval Mailhot, Chief of Appeals at the CCRA, testified at the request of counsel for the appellant. He confirmed that the CPT-110 had been initialled by him on September 22, 1999 and that the Minister's decision, signed by him, had been sent on that same day along with his letter, also of that date, to counsel for the appellant referred to in paragraph [23] of these reasons. Mr. Mailhot confirmed that there was enough money in the budget to send Ms. Fortin to Montréal and likewise sufficient funds to put the file in an envelope and send it to the Montréal office.
Argument
[29] With respect to the point concerning natural justice, counsel for the appellant argued that the letter of September 22, 1999 (Exhibit I-25) left him little time to provide additional information. As a possible argument, he raised the fact that Ms. Fortin had previously handled Ms. Lebel's file and had rendered a negative decision. He was troubled by the insistence on handling the case in Québec. He did not understand the reason for this.
[30] With respect to the appellant's employment, her counsel argued that it was a quite ordinary job, which had been performed in difficult circumstances, circumstances in which a business was started up which, unfortunately—and this is not the first business to which this has happened—for lack of sufficient means had to close its doors quite soon thereafter.
[31] Counsel for the appellant referred to the following passage in the Federal Court of Appeal's decision in Légaré v. Canada, [1999] F.C.J. No. 878:
[4] . . . The Court is not mandated to make the same kind of determination as the Minister and thus cannot purely and simply substitute its assessment for that of the Minister: that falls under the Minister's so-called discretionary power. However, the Court must verify whether the facts inferred or relied on by the Minister are real and were correctly assessed having regard to the context in which they occurred, and after doing so, it must decide whether the conclusion with which the Minister was "satisfied" still seems reasonable.
[32] Counsel for the respondent argued that the appellant continued to do the same work outside the periods in issue for no remuneration. She did not doubt, as Mr. Dubé had said, that the appellant was an excellent collaborator for the business, but counsel for the respondent maintained that the appellant was in fact much more a collaborator than an employee of the business. The business was in its start-up phase and did not have sufficient funds to hire a full-time secretary.
[33] As to the fact that the same officer had handled a subsequent appeal application, that is the Department's practice. That officer had better knowledge of the context, of the business and of the working conditions and could make sure that nothing had changed. The Minister's officer wanted to speak with the appellant to determine whether there had been any changes for the period concerned. She wanted to grant the appellant a new hearing. As to the cost issue raised by counsel for the appellant in his extensive correspondence, counsel for the respondent argued that there was a 1-800 number at the disposal of the appellant and her counsel.
[34] Counsel for the respondent referred to the decision of October 27, 1999 by Deputy Judge MacLatchy of this Court in Diego Spano, a case in which the appellants had invoked the principles of natural justice. Counsel cited a passage found at page 9 of that decision:
[23] . . . They were given full opportunity to make full disclosure for the Respondent's consideration and they were informed of their rights of appeal. . . .
[35] She also referred to the decision which I rendered in Berthiaume v. Canada, [1998] T.C.J. No. 1067:
[32] Can counsel for an appellant, or an appellant himself, dictate to the Minister's officer responsible for the investigation at the appeals level the investigation method that officer should use? To ask the question, in my view, is to answer it. Counsel for the appellant wished to know the Court's position on this point. The Court usually does not rule on a question unless it has been debated in court. In this case, I find the answer so obvious that I will give it. The Minister's appeals officer must render a decision after forming an opinion on the case. His is a quasi-judicial role. However, regardless of whether an officer of the Minister acts in a quasi-judicial role or in an inspection role, it is up to him to determine the best way to ascertain the truth in accordance with the standards of what is reasonable. It seems clear to me that a meeting or at least a telephone conversation with the appellants was necessary to enable him to assess the grounds of appeal and to allow the appellants to be heard. Indeed, appellants do not always find a telephone conversation sufficient to fully express their point of view. However, this method may be acceptable for purposes of efficiency. But there is definitely no obligation for the appeals officer to proceed by means of a written questionnaire if he deems that this is not how he will best shed light on a case. In my opinion, in view of his lack of cooperation, the appellant cannot complain that there was no investigation. In any case, I find that the Minister had sufficient information to be able to render his decision.
[36] In rebuttal, counsel for the appellant reiterated the point that he found it strange that the Québec office had insisted on keeping the file and not transferring it to the Montréal division, which he felt would have offered better guarantees with respect to justice appearing to be done. He cited no case law or doctrine in support of his argument. He referred to the fact that, in an appeal before the Federal Court of Appeal, the matter may be referred back to the Tax Court of Canada, but to be decided by another judge of the latter court, the idea being to have a new hearing.
[37] Since counsel for the appellant referred to the principles of natural justice, I shall address that subject first. To define the notion of natural justice, I refer to Patrice Garant's Droit administratif, 4th ed., Les Éditions Yvon Blais Inc., at the following pages:
[TRANSLATION]
(page 213)
Introduction: Natural Justice - Fundamental Justice
The principles of natural justice or fundamental justice are the result of a jurisprudential construct specific to the common law. This construct holds a central place in disputes over administrative legality and, much more specifically, in the monitoring and control of quasi-judicial bodies.
These principles of natural justice include two rules: the audi alteram partem and nemo judex in sua causa rules. The first means that a citizen whose rights are interfered with is entitled to be heard in order to put forward his defence or point of view; the second means that a citizen is entitled to be treated with impartiality and without prejudice.
(page 214)
The principles of natural justice are a jurisprudential construct based on the idea that a public body which is called upon to rule on the rights of a citizen must not only be impartial but afford that citizen the opportunity to be heard or to put forward his point of view or defence. A body which, by its decisions, affects the rights of a citizen is considered to be like a judge who, by his judgment, affects the rights of a person subject to his jurisdiction. . . .
(page 229)
This "new natural justice" is a colourful expression referring to the introduction of a new rule applied to the performance of purely administrative functions: it is the requirement of procedural fairness or the duty to act fairly. This duty to act fairly is an adaptation to administrative functions of the application, in particular, of the audi alteram partem rule, as the Supreme Court has held in a number of judgments.
(page 230)
Can it still be said in 1991 that there is a clear line between quasi-judicial functions and administrative functions, between the quasi-judicial and administrative domains?
The establishment of the duty to act fairly in Nicholson (Nicholson v. Haldimand Norfolk, [1979] 1 S.C.R. 311, 324; approved in A.G. Canada v. Inuit Tapirisat, [1980] 2 S.C.R. 735, 757) suggested that different rules applied to different areas. It appears, however, after 10 years of case law and doctrine that this is no longer the case. Emphasizing that the requirements of procedural fairness, like those of traditional natural justice, have the same basis, namely the "general principles of natural justice", the Supreme Court held in 1990 that:
There is no longer a need, except perhaps where the statute mandates it, to distinguish between judicial, quasi-judicial and administrative decisions. . . . Following Nicholson, that distinction became less important and was found to be of little utility . . . . (Board of Education of the Indian Head School Division No. 19 v. Knight, [1990] 1 S.C.R. 653; Syndicat des employés de production du Québec et de l'Acadie v. Canada, [1989] 2 S.C.R. 879, 895-96)
Moreover, in 1980, Dickson J. quite openly stated:
It is wrong, in my view, to regard natural justice and fairness as distinct and separate standards and to seek to define the procedural content of each. . . . The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case . . . . (Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, 630)
(page 232)
The duty to act fairly applies to investigations which end with a report, findings or recommendations. . . .
The duty to act fairly, however, does not apply to acts that are not decisions directly affecting a citizen, such as purely preliminary or bureaucratic acts, which cannot cause prejudice for the time being; this is the case with certain verifications, investigations or inspections. According to the Supreme Court in Irvine, the administrative process must have reached a sufficiently advanced or specific stage. Thus, the verification of a complaint and the decision to conduct an investigation do not call for the application of procedural requirements dictated by fairness. The courts have decided that the administrative process must not be made unduly cumbersome, particularly where, at a truly critical moment, a citizen will have an opportunity to benefit from fair procedural protection.
(pages 237-38)
In short, bodies exercising administrative functions clearly have a duty to act fairly. . . . The content of this "new natural justice" will gradually be defined and will evolve alongside the traditional rules of natural justice. However, it is essential to bear in mind that the new natural justice is an adaptation to purely administrative functions of the application of the audi alteram partem rule, hence the extreme importance of carefully examining that rule in its classic formulation.
(page 346)
What situations have been recognized by the courts of law as giving rise to a reasonable fear of prejudice? There are four classes. First, there are conflicts of interest, that is to say, situations in which a person may be inclined to prefer his personal interest or an interest with which he is involved over the public interest, be it national, provincial or local. Second, there are situations in which a person hears an appeal from a decision which he has rendered or in which he participated. Third, there is the situation of a person who acts simultaneously or consecutively as accuser and judge. Fourth, there are prior statements, behaviour or attitudes of a tribunal member with respect to matters directly related to the question to be decided. As to the attitudes and statements of the tribunal at the hearing itself, we believe, for the reasons set out below, that they must be considered as falling within the fourth class.
(pages 383-84)
The courts however have been very reluctant to recognize that specific previous behaviour gives rise to a reasonable fear of prejudice. Thus, the Court of Appeal has held that the fact that a member of a disciplinary committee had acted 10 years earlier as a syndic in another disciplinary matter involving the applicant does not give rise to a reasonable fear of prejudice. It was similarly decided where a judge who had acted a number of years earlier as Crown prosecutor in a proceeding against the accused found himself judging that same individual. The same holds true in the case of a judge who in a previous trial has had to rule openly on matters similar to those on which he is now required to rule. With respect to previous behaviour, there is no reasonable fear of prejudice in such cases. It would be quite different if a judge were hearing an appeal from one of his previous decisions in the sense indicated above.
In the same vein, the Federal Court of Appeal held as follows in Fogel v. Minister of Manpower and Immigration:
. . . the principle of natural justice invoked is not offended simply because, as in this case, the person adjudicating has participated in a prior adjudication of another matter involving the same party.
(page 385)
If previous statements constitute more a policy statement or an observation arising from a policy which the tribunal or a member of the tribunal believes follows from the legislation, no reasonable fear of prejudice results, even if a connection can clearly be made between those statements and the issue before the tribunal.
(page 389)
In our view, the case law clearly appears to establish that a previous policy statement or previous directives by a tribunal do not give rise to a reasonable fear of prejudice if the tribunal complies with the audi alteram partem rule and preserves its freedom to decide, even if the decision to intervene is consistent with the policy statement or the directives.
[38] The purpose of this obviously very lengthy citation was to ascertain the principles of natural justice applying to the administrative process which results in the Minister's decision. These principles require that the person concerned have had the opportunity to be heard by impartial officers.
[39] The Minister's officers inquired many times as to the alleged breaches of the principles of natural justice. The stated reason concerned the costs to government. This was certainly not a serious reason. It is for the government to determine the best use of its resources. As for the appellant, she had access to toll-free telephone lines.
[40] The reason for the fear of prejudice or of lack of impartiality was never clearly expressed. It was expressed only at the hearing. The reason given is a substantial one because it concerns one of the two rules of natural justice, namely the right to be dealt with in an impartial manner. However, as may be seen from the passages cited above, the courts have held on a number of occasions that an officer is not considered to be biased simply because he has previously rendered decisions concerning the same persons. The reasons given must lead one to believe that there was prejudice, and this prejudice must be proven. In the instant case, however, no specific allegations of prejudice were made. There was perhaps a vague expression of a fear of prejudice. That is not sufficient. In any case, I find the procedure followed by the appeals officer to have been fair. The appeals officer waited for this Court's decision concerning the appellant for the previous years. The judgment confirmed the Minister's decision. According to the officer's testimony, she inquired as to whether there had been any changes in working conditions which might lead her to change her position. None was mentioned to her.
[41] I therefore find that the principles of natural justice were complied with in the decision reached by the Minister. The appellant was given the opportunity to be heard by an impartial person.
[42] As to the subject of the appeal, that is to say, the matter of whether the employment was insurable within the meaning of the Act, I first cite subparagraph 3(2)(c)(ii) of the Act which was in effect until June 1996 (the relevant provisions of the Employment Insurance Act are similarly worded):
3.(2) Excepted employment is
. . .
(c) subject to paragraph (d), employment where the employer and employee are not dealing with each other at arm's length and, for the purposes of this paragraph,
. . .
(ii) where the employer is, within the meaning of that Act, related to the employee, they shall be deemed to deal with each other at arm's length if the Minister of National Revenue is satisfied that, having regard to all the circumstances of the employment, including the remuneration paid, the terms and conditions, the duration and the nature and importance of the work performed, it is reasonable to conclude that they would have entered into a substantially similar contract of employment if they had been dealing with each other at arm's length.
[43] This paragraph means that employment where the employer and employee are related persons is not excepted employment if it is employment which meets the usual standards of the labour market, employment the start and end of which are truly dictated by a demand for labour and by a shortage of work, employment in which the services of even an unrelated person would be required and for which the business could afford to pay.
[44] As to the duration of the work, the evidence revealed that the appellant worked for the business outside the periods of employment in the same manner as during those periods. The demand for labour always remained the same. The appellant was the person who knew how to enter the data in the computer. She did the pays, the billing and the bookkeeping. It is therefore impossible to believe that she virtually stopped working during the periods when she was laid off.
[45] The period of employment which is not in issue and for which the record of employment was produced together with those for the periods in issue can only add to the confusion that reigns as to the facts in this case. If Mr. Dubé had been a genuine employer, he would have known the appellant's exact periods of employment. Furthermore, it is strange that the appellant maintained her unemployment insurance benefit claim of September 17, 1996 when she apparently had a work period from September 30 to October 25, 1996. She definitely did not inform the officers responsible for reviewing her claim for benefit about that work period.
[46] The admission that the only salary Mr. Dubé drew for his work was $291.30 a week for three weeks must not be forgotten. The Reply to the Notice of Appeal refers to the business's being short of cash. Remuneration is normally determined on the basis of what the business can pay. In this instance, the financial statements were not filed and no explanation was given as to the basis of the appellant's remuneration.
[47] The hours of work and the work performed do not appear to have been monitored and no evidence was adduced in this regard.
[48] I conclude that the facts relied on by the Minister are true and were correctly and reasonably assessed in accordance with the relevant provisions of the Act. The employment in question is not insurable employment. In my view, what is involved is rather a joint undertaking which thus, unfortunately, does not come under the Act currently in force. The appeal is accordingly dismissed.
Signed at Ottawa, Ontario, this 7th day of November 2000.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
[OFFICIAL ENGLISH TRANSLATION]
1999-4135(EI)
BETWEEN:
PIERRETTE LEBEL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on July 14, 2000, at Trois-Rivières, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Appellant : Gilbert Nadon
Counsel for the Respondent : Josée Vigeant
JUDGMENT
IT IS HEREBY ORDERED that the appeal be dismissed and the determination at issue confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 7th day of November 2000.
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"Louise Lamarre Proulx" |
J.T.C.C.