Date: 19971006
Docket: 96-1111-UI
BETWEEN:
EDNA WAY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgement
Cuddihy, D.J.T.C.C.
[1] This appeal was heard in Gander, Newfoundland, on September 11, 1997.
I- The appeal
[2] This is an appeal from a determination by the Minister of National Revenue (the "Minister") of April 26, 1996, where it was determined that the Appellant's employment with Judy Way (the "Payor") from May 23 to August 16, 1995, was not insurable within the meaning of the Unemployment Insurance Act (the "Act") because, according to the Minister, the Appellant and the Payor were not dealing with each other at arm's length within the meaning of paragraph 3(2)(c) of the Act and thus the said employment was excepted.
II- The facts
[3] In rendering his decision the Minister relied on the facts and reasons outlined in his Reply to the Notice of Appeal and particularly in paragraph 7 as follows:
"(a) the facts admitted and stated hereinbefore;
(b) the Appellant is the mother-in-law of the Payor and the grandmother of the child for whom she was to have provided full-time child care services during the period in question;
(c) the Payor required some assistance with housework and child care of her two year old son for the duration of her pregnancy and for some time after the birth of her three baby girls on October 18, 1995:
· from the end of May to mid-August the Appellant purportedly lived with the Payor and provided the needed assistance with the housework and child care,
· from mid-August to mid-September the Appellant's son was home and provided the needed assistance with the housework and child care,
· from mid-September to the birth of the triplets a family friend came to help out three times a week for only 3 1/2 hours and was not paid for her services,
· from the birth of the triplets to the first week in November the Payor's mother stayed with her and provided the needed assistance with the housework and child care and was not paid for her services;
(d) during the thirteenth week period in question and in accordance with the verbal agreement between them, the Appellant was purportedly engaged by the Payor to work out of the Payor's home caring for the Payor's child and doing some light housework;
(e) during the thirteenth week period in question and in accordance with the verbal agreement between them, the Appellant was to be paid erratically, with no set pay days, and no set method of payment the gross amount of $400.00 per week based on a 40-hour work week at the rate of $10.00 per hour, less an undisclosed deduction for room and board;
(f) the Payor's records do not indicate that payments were in fact made to the Appellant;
(g) the wage rate of $10.00 per hour that was to have been paid to the Appellant was excessive in that it was higher than the average wage rate paid to live-in nannies in the area (they usually earn the minimum wage of $6.85 per hour less a deduction for room and board when applicable);
(h) if the Appellant would have actually received the total earnings, including vacation pay, reported by the Payor on the Appellant's Record of Employment in the amount of $5,491.00, less an undisclosed deduction for room and board, for the thirteenth week period in question, her total weekly earnings would have been excessive in light of the fact that the Payor could have hired a person with the Appellant's qualifications but with whom dealings would have been at arm's length at a considerably lower cost;
(i) the Appellant required the number of weeks in question to qualify for unemployment insurance benefits and the Payor was aware of this fact prior to the Appellant's alleged engagement by the Payor;
(j) the alleged engagement of the Appellant by the Payor on a full-time basis during the period in question was an accommodation to qualify her for unemployement insurance benefits;
(k) the Appellant is related to the Payor within the meaning of the Income Tax Act;
(l) the Appellant is not dealing with the Payor at arm's length;
(m) 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 not reasonable to conclude that the appellant and the Payor would have entered into a substantially similar contract of employment if they had been dealing with each other at arm's length."
[4] The Appellant admitted the allegations in subparagraphs (a) to (c) and (k). The allegation in subparagraph (d), was admitted with explanations to be given. The allegations in subparagraphs (e) to (j), (l) and (m) were denied.
III- The Law and Analysis
i) Definitions from the Unemployment Insurance Act
"employment" means the act of employing or the state of being employed;
"Insurable employment"
Subsection 3(1) reads as follows:
"3. (1) Insurable employment is employment that is not included in excepted employment and is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
..."
"Excepted employment"
Subsection 3(2) reads in part as follows:
"(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,
(i) the question of whether persons are not dealing with each other at arm's length shall be determined in accordance with the provisions of the Income Tax Act, and
(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 ..."
(d) the employment of a person by a corporation if the person controls more than forty per cent of the voting shares of that corporation;"
ii) Definitions from the Income tax Act
Arm's length and Related persons
Section 251 of the Income Tax Act reads in part as follows:
"Section 251. Arm's length.
(1) For the purposes of this Act,
(a) related persons shall be deemed not to deal with each other at arm's length; and
(b) it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm's length.
(2) Definition of "related persons". For the purpose of this Act, "related persons", or persons related to each other, are
(a) individuals connected by blood relationship, marriage or adoption;
(b) a corporation and
(i) a person who controls the corporation, if it is controlled by one person,
(ii) a person who is a member of a related group that controls the corporation, or
(iii) any person related to a person described in subparagraph (i) or (ii) ..."
[5] The Appellant has the burden of proving her case. Each appeal however must be decided on the facts particularly established and on its own merits.
[6] It is the determination of the Minister that is appealed. In the case of Sylvie Desroches v. M.N.R. (A-1470-92), at page 3 of the Reasons for Judgement, Desjardins, J.A. of the Federal Court of Appeal says:
"...However, in the final analysis, as this Court held in Attorney-General of Canada v. Jacques Doucet, it is the Minister's determination which is at issue, namely that the employment was not insurable because the applicant and the payer were not bound by a contract of service. The function of the Tax Court of Canada judge extended to considering the record and the evidence in its entirety. Accordingly Marceau J.A., speaking for the Court, said the following in Doucet:
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...
The trial judge could go as far as deciding that there was no contract between the parties..."
[7] If there is a doubt in the interpretation, it must favour the claimant and there is nothing that prevents a taxpayer from benefitting from a social program if the requirements of the law are respected. This is what Judge Hugessen, F.C.A., described in Attorney General of Canada v. Rousselle et al., decision of October 31, 1990 (124 N.R. 339):
"I do not think it is an exaggeration to say, in light of these facts, that if the respondents did hold employment this was clearly "convenience" employment, the sole purpose of which was to enable them to qualify for unemployment insurance benefits. These circumstances certainly do not necessarily prevent the employment from being insurable, but they imposed on the Tax Court of Canada a duty to look at the contracts in question with particular care; it is apparent that the motivation of the respondents was the desire to take advantage of the provisions of social legislation rather than to participate in the ordinary operation of the economic forces of the market place."
[8] The Court therefore has a duty to scrutinize with care the conditions of the relations between a worker and a payor in every case.
[9] Furthermore, subsections 70(2) and 71(1) of the Unemployment Insurance Act grant to the Tax Court broad remedial powers that would permit the Court to resolve any dispute of a factual nature and to reverse, affirm or vary the Minister's determinations.[1]
[10] The Appellant was heard in support of her appeal. Exhibits A-1, R-1 to R-5 were filed in the Court record.
[11] The Appellant, Edna Way, is the mother of William Way, who is married to Judy Way (the "Payor").
[12] The Payor became pregnant with triplets. She was advised by her doctor that she would require assistance with housework and child care of her two year old son for the duration of the pregnancy.
[13] William Way, the husband of the Payor, was teaching full time from September to June. He was planning to pursue his studies to obtain a master's degree during the summer months of 1995, at the University of Indiana, Illinois. It was not shown for how may weeks he was away nor when he left. However, he returned home on August 15, 1995, when the Appellant was laid-off. The evidence would further indicate that he must have left sometime in June, if he was teaching in Scarborough for the school year.
[14] The facts relied upon by the Minister were that the Payor required some assistance with housework and child care of her two year old son for the duration of her pregnancy and for some time after the birth of her three baby girls on October 18, 1995. From the end of May to mid- August, the Appellant lived with the Payor and provided the needed assistance with the housework and child care. From mid-August to mid-September, the Appellant's son was home and provided the needed assistance with the housework and child care. From mid-September to the birth of the triplets, a family friend came to help out three times a week for only 3 ½ hours and was not paid for her services. From the birth of the triplets to the first week in November, the Payor's mother stayed with her and provided the needed assistance with the housework and child care and was not paid for her services.
[15] During the thirteen week period in question and in accordance with the agreement between them, the Appellant was engaged by the Payor to work out of the Payor's home caring for the Payor's child and doing all the other work that needed to be done.
[16] The Appellant at the hearing denied the allegations of the Minister outline above in subparagraphs (e) to (m) of the Reply.
[17] The Minister alleged that during the thirteen week period in question, the Appellant was to be paid erratically, with no pay days, and no set method of payment, the gross amount of $400.00 per week based on a forty-hour week at the rate of $10.00 per hour, less an undisclosed deduction for room and board. The Minister also said that the Payor's records did not indicate that payments were in fact made to the Appellant. He also alleged that the rate of $10.00 per hour was excessive in that it was higher than the average wage rate paid to live-in nannies in the area and that the Payor could have hired a non-related person at a lower cost.
[18] The Appellant stated that she was paid by cheque. She could not remember the amounts of the cheques. She said that she was paid $400.00 gross per week, less room and board. She said that she gave the Payor three cheques in the amount of $135.77, $306.00 and $152.00 and that she wrote out one cheque to the Receiver General; these cheques were to pay her premiums for unemployment insurance premiums, Canada Pension Plan and income tax payments. She said that her room and board cost $80.00 per week, which would leave her $320.00 a week.
[19] In cross-examination, she was shown the summary of her earnings that were provided the Minister (Exhibit R-1). She said that she worked eight hours every day from 7:00 am to 3:00 pm, 40 hours a week. After those hours she "stayed put", took care of the meals and bathed the child. She stated that on Saturdays and Sundays, she also took care of the Payor and the child and that she worked for more than 40 hours but was paid for only 40 hours. In June and July, she worked eight hours a day and in August, she worked 10 hours a day.
[20] She was also shown her record of employment (Exhibit R-2). At this stage she said that she was not always paid 40 hours; if the Payor decided to give more money, she received it. Her pay cheque was not the same each month. She prepared her record of employment and did the payroll. She was paid on August 2 and 8 and September 10, 1995. She said that there had to be another cheque which appeared to indicate that she would have received four pay cheques.
[21] The Appellant was to be paid $400.00 gross a week, less $80.00 for room and board, for a five-day week, 40 hours per week. No cheques were provided to the Minister. The summary of earnings (Exhibit R-1) shows gross earnings of $5,491.00 from May to August. This amount is also shown in the record of employment (Exhibit R-2) for a work period of 13 weeks. The amount of $5,491.00 for 13 weeks is $422.40 a week. The room and board (Exhibit R-1) from May to August amounts to $1,108.27 or $85.25 a week, or $12.17 a day. The document filed by the Appellant, from a hiring agency, Selective Personnel (Exhibit A-1), does not indicate what is deducted for room and board.
[22] The evidence of the Appellant shows that she was paid $10.56 an hour for 40 hours of work per week. When one compares the summary of earnings (Exhibit R-1) to the record of employment (Exhibit R-2), to the application for benefits (Exhibit R-4) and to the evidence, one cannot conclude that the Minister was wrong when he alleged that the Appellant was paid erratically with no set pay days. The fact that no cheques were produced does not mean that the money was not paid, but not having the cheques permitted the Minister to allege that the Payor's records did not indicate that payments were in fact made. If one relies on the summary of earnings (Exhibit A-1), there should be in existence four cheques covering the pay period in the amounts and the dates set out in the net pay column. This was lacking. The evidence of the Appellant to the effect that she paid the Payor her contribution for unemployment insurance premiums and Canada Pension Plan would also be noted by the Minister as not being the normal situation of an unrelated employee.
[23] The other main concern of the Minister was the Appellant's pay rate in relation to live-in nannies in the area, who are paid $6.85 an hour, the minimum wage less room and board when applicable. The Appellant inquired at several businesses and produced a document (Exhibit A-1), referred to earlier. This document does not mention the cost of room and board nor the salary of the person to be hired. It does mention however a finder's fee. The argument, I assumed from the Appellant, was that if an employer was to pay a finder fee on top of the salary, it would cost more to hire someone from one of these agencies than what she was earning.
[24] A salary of $6.85 an hour for 40 hours of work would cost $274.00 a week. If an employer were to hire live-inn help at $274.00 a week and pay the equivalent of one month's salary as a finder fee, he or she would pay the finder fee of $1,096.00 ($274.00 X 4) plus $3,562.00 (13 weeks X $274.00) being a total of $4,658.00. This would be $833.00 less than the $5,491.00, the Appellant received from the Payor. May I add however that when the Minister compares a salary for the purposes of the unemployment insurance plan set up by Parliament, he would not normally take into account a finder fee since that would not form part of the employee's salary. It is the salary of a worker that is insurable and the premiums paid are based on that salary. The salary or wages paid also determines the amount of benefits paid in the event of a loss of employment.. It is possible therefore to conclude that a salary of $274.00 a week would be less than the agreement between the Payor and the Appellant. This evidence would confirm that the Minister took into account the average wage rate of live-in nannies in the area and such an employee would not have received $10.00 an hour and would have cost less when based on a five day 40 hour week.
[25] Two other allegations upset the Appellant. The first one was where the Respondent alleged that the Appellant required the number of weeks in question to qualify for unemployment insurance benefits and the Payor was aware of this fact prior to the Appellant's alleged engagement by the Payor. This allegation concerns the Payor and she was not heard at the hearing, so it would be difficult for the Court to put this allegation aside when the person to whom it is addressed (the Payor), is not there to explain it.
[26] The other allegation that the Appellant did not accept was where the Minister stated that the engagement of the Appellant by the Payor on a full-time basis was an accommodation to qualify her for unemployment insurance benefits.
[27] The Appellant was truly upset about this last allegation because she felt that she was being accused of having done something dishonest. This, may I say, was not the case. What the Minister had to decide was whether the employment was to be excepted or included in insurable employment. The language used may sometimes surprise people, however, the Appellant interrupted her unemployment insurance claim period, accepted work with her daughter-in-law, advised the unemployment insurance office of her departure and her arrival. No doubt the work period of the Appellant for the Payor would, in the normal course of events, be applied to a new claim on the expiration of the claim that had been interrupted. This additional fact would have been known to the Appellant and the Respondent and could lead the Appeals Officer to allege that the employment was convenient for those purposes, when all the facts were examined. This is not an allegation of dishonesty
[28] Did the Minister except the Appellant's employment within the meaning of subparagraph 3(2)(c)(ii) of the Act?
[29] The Federal Court of appeal in Attorney General of Canada and Jencan Limited [2] has outlined the principles which must guide the Tax Court when dealing with an appeal under 3(2)(c)(ii) of the Act as follows:
"The decision of this Court in Tignish, supra, requires that the Tax Court undertake a two-stage inquiry when hearing an appeal from a determination by the Minister under subparagraph 3(2)(c)(ii). At the first stage, the Tax Court must confine the analysis to a determination of the legality of the Minister's decision. If, and only if, the Tax Court finds that one of the grounds for interference are established can it then consider the merits of the Minister's decision. As will be more fully developed below, it is by restricting the threshold inquiry that the Minister is granted judicial deference by the Tax Court when his discretionary determinations under subparagraph 3(2)(c)(ii) are reviewed on appeal. Desjardins J.A., speaking for this Court in Tignish, supra, described the Tax Court's circumscribed jurisdiction at the first stage of the inquiry as follows:
...Subsection 71(1) of the Act provides that the Tax Court has authority to decide questions of fact and law. The applicant, who is the party appealing the determination of the Minister, has the burden of proving its case and is entitled to bring new evidence to contradict the facts relied on by the Minister. The respondent submits, however, that since the present determination is a discretionary one, the jurisdiction of the Tax Court is strictly circumscribed. The Minister is the only one who can satisfy himself, having regard to all the circumstances of the employment, including the remuneration paid, the terms and conditions and importance of the work performed, that the applicant and its employee are to be deemed to deal with each other at arm's length. Under the authority of Minister of National Revenue v. Wrights' Canadian Ropes Ltd., contends the respondent, unless the Minister had not had regard to all the circumstances of the employment (as required by subparagraph 3(2)(c)(ii) of the Act), has considered irrelevant factors, or has acted in contravention of some principle of law, the court may not interfere. Moreover, the court is entitled to examine the facts which are shown by evidence to have been before the Minister when he reached his conclusion so as to determine if these facts are proven. But if there is sufficient material to support the Minister's conclusion, the court is not at liberty to overrule it merely because it would have come to a different conclusion. If, however, those facts are, in the opinion of the court, insufficient in law to support the conclusion arrived at by the Minister, his determination cannot stand and the court is justified in intervening.
In my view, the respondent's position is correct in law...[3]
In Ferme Émile Richard v. M.N.R., this Court confirmed its position. In obiter dictum, Décary J.A. stated the following:
As this Court recently noted in Tignish Auto Parts Inc. v. Minister of National Revenue, July 25, 1994, A-555-93, F.C.A., ... an appeal to the Tax Court of Canada in a case involving the application of s. 3(2)(c)(ii) is not an appeal in the strict sense of the word and more closely resembles an application for judicial review. In other words, the court does not have to consider whether the Minister's decision was correct: what it must consider is whether the Minister's decision resulted from the proper exercise of his discretionary authority. It is only where the court concludes that the Minister made an improper use of his discretion that the discussion before it is transformed into an appeal de novo and the court is empowered to decide whether, taking all the circumstances into account, such a contract of employment would have been concluded between the employer and employee if they had been dealing at arm's length.[4]
Section 70 provides a statutory right of appeal to the Tax Court from any determination made by the Minister under section 61, including a determination made under subparagraph 3(2)(c)(ii). The jurisdiction of the Tax Court to review a determination by the Minister under subparagraph 3(2)(c)(ii) is circumscribed because Parliament, by the language of this provision, clearly intended to confer upon the Minister a discretionary power to make these determinations. The words "if the Minister of National Revenue is satisfied" contained in subparagraph 3(2)(c)(ii) confer upon the Minister the authority to exercise an administrative discretion to make the type of decision contemplated by the subparagraph. Because it is a decision made pursuant to a discretionary power, as opposed to a quasi-judicial decision, it follows that the Tax Court must show judicial deference to the Minister's determination when he exercises that power. Thus, when Décary J.A. stated in Ferme Émile, supra, that such an appeal to the Tax Court "more closely resembles an application for judicial review", he merely intended, in my respectful view, to emphasize that judicial deference must be accorded to a determination by the Minister under this provision unless and until the Tax Court finds that the Minister has exercised his discretion in a manner contrary to law.
If the Minister's power to deem "related persons" to be at arm's length for the purposes of the UI Act is discretionary, why, one might ask, does the right of appeal to the Tax Court under section 70 apply to subparagraph 3(2)(c)(ii) at all? The answer is that even discretionary powers are subject to review to ensure that they are exercised in a judicial manner or, in other words, in a manner consistent with the law. It is a necessary incident of the rule of law that all powers granted by Parliament are of an inherently limited nature. In D.R. Fraser and Co. Ltd. v. Minister of National Revenue, Lord Macmillan summarized the legal principles which ought to govern such review. He stated:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.[5]
Lord Macmillan's comments were quoted with approval by Abbott J. of the Supreme Court in Boulis v. Minister of Manpower and Immigration.[6] See also Friends of the Oldman River Society v. Canada (Minister of Transport)[7] and Canada v. Purcell.[8]
Thus, by limiting the first stage of the Tax Court's inquiry to a review of the legality of ministerial determinations under subparagraph 3(2)(c)(ii), this Court has merely applied accepted judicial principles in order to strike the proper balance between the claimant's statutory right to have a determination by the Minister reviewed and the need for judicial deference in recognition of the fact that Parliament has entrusted a discretionary authority under this provision to the Minister.
On the basis of the foregoing, the Deputy Tax Court Judge was justified in interfering with the Minister's determination under subparagraph 3(2)(c)(ii) only if it was established that the Minister exercised his discretion in a manner that was contrary to law. And, as I already said, there are specific grounds for interference implied by the requirement to exercise a discretion judicially. The Tax Court is justified in interfering with the Minister's determination under subparagraph 3(2)(c)(ii) - by proceeding to review the merits of the Minister's determination - where it is established that the Minister: (i) acted in bad faith or for an improper purpose or motive; (ii) failed to take into account all of the relevant circumstances, as expressly required by paragraph 3(2)(c)(ii); or (iii) took into account an irrelevant factor."
[30] The Tax Court in dealing with an appeal under subparagraph 3(2)(c)(ii) of the Act must undertake a two-stage inquiry.
[31] The Tax Court is justified in interfering with the Minister's determination only if it is established that the Minister exercised his discretion in a manner that was contrary to law. The Tax Court is justified in interfering with the Minister's determination under subparagraph 3(2)(c)(ii) by proceeding to review the merits of the determination where it is established "that the Minister: (i) acted in bad faith or for an improper purpose or motive; (ii) failed to take into account all of the relevant circumstances as expressly required by paragraph 3(2)(c)(ii); or (iii) took into account and irrelevant fact".
[32] In other words, the Court does not have to consider whether the Minister's decision was correct. What the Court must consider is whether the Minister's decision resulted from the proper exercise of his discretionary authority.
[33] It is only where the Court concludes that the Minister made an improper use of his discretion that the discussion before it is transformed into an appeal de novo and the Court is empowered to decide whether, taking all the circumstances into account, such a contract of employment would have been concluded between the employer and the employee, if they had been dealing with each other at arm's length.
[34] The Act confers on the Minister the obligation of analyzing all the circumstances surrounding the employment and, not only, but including the rate of pay, the terms, the conditions, the duration, the nature and the importance of the work performed. This does not mean that persons who are related are not eligible for unemployment insurance benefits under the Act, but in order to qualify the legislator has in the Act defined the process. The legislation has also used the wording "substantially similar contract of employment" which does not confer the meaning of exactly the same to identical.
[35] In this case the nature and importance of the work of the Appellant were very important and exceptional. This Court cannot overlook the personal dedication of the Appellant.
[36] The Minister looked at the following facts: the Appellant's remuneration, the terms and conditions of her employment, the method of payment, the numerous hours worked beyond the 40-hour work week, the replacement by others who were not paid, the payment by the Appellant to the Payor of her own contributions for Unemployment Insurance and Canada Pension Plan, the records of the Payor not showing the payment of the salary, the comparison made with similar types of employment in the area, the letter of the Appellant's son sent to the Respondent in December 1995, (who wished that the only two persons interviewed guarantee staying for a period of twelve weeks and could not accept other employment while working ), and the uncertain duration of her son's absence from home (was it twelve or thirteen weeks) which was the main reason for her employment. The Appellant's son did not want a person that would "quit" while he was away. One can readily understand this but what if the person hired did not meet the Payor's expectations while he was away?
[37] The Minister had to ask himself; would these conditions and circumstances of employment be present if the employee was not related? The Minister decided that they would not. Did the Minister use his discretion properly?
[38] All these facts would demonstrate that the Minister took into consideration all the circumstances of the employment of the Appellant and that the decision was not contrary to law.
[39] The Appellant, therefore, has not demonstrated that the Minister acted in bad faith or for an improper motive or purpose, or that he took into consideration irrelevant facts or that he failed to take into account all of the relevant circumstances.
[40] A final argument of the Appellant was that she was under the impression of being discriminated against. This question was debated before in relation to subparagraph 3(2)(c)(ii) of the Act.
[41] With respect to section 15 of the Charter, Judge Archambault of this Court in Thivierge v. Minister of National Revenue (1994), T.C.J. No. 876, found that the revised subparagraph 3(2)(c)(ii), as we now know it and as reproduced at the beginning of this decision, did not contravene with section 15 of the Charter and was not disciminatory. I agree with that finding.
[42] This Court has not been shown any legal reason to intervene in the Respondent's determination.
IV- Decision
[43] The appeal is dismissed and the determination of the Minister is affirmed.
"S. Cuddihy"
D.J.T.C.C.