Date: 20011203
Docket: 2001-1433-EI
BETWEEN:
INTRIA CORPORATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2001-1436(EI)
CIBC FINANCIAL PLANNING INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2001-1442(EI)
CIBC MORTGAGES INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
WEISMAN, D.J.T.C.C.
[1] These three appeals under subsection 103(1) of the Employment Insurance Act[1] (the "Act") were heard together on common evidence.
[2] The Appellants are all wholly-owned subsidiaries of the Canadian Imperial Bank of Commerce ("CIBC"), which is a multinational and multi-entity corporate group. In 1999, CIBC and companies related to it transferred 506 employees to Intria Corporation ("Intria"), 224 employees to CIBC Financial Planning Inc. ("CFP"), and 73 employees to CIBC Mortgages Inc. ("CMI").
[3] Prior to the transfers, CIBC and its related entities, duly withheld, matched, and remitted to the Receiver General, the employee's and employer's employment insurance premiums payable under the Act.
[4] Following the transfers, further premiums were withheld, matched, and remitted, but only to the extent that each employee's maximum insurable earnings, as received in 1999 from both their initial employers and the Appellants were not exceeded.
[5] The Minister of National Revenue (the "Minister") assessed each of the Appellants by Notice of Assessment dated August 2, 2000, and August 3, 2000, for failure to remit employment insurance premiums for the 1999 taxation year. Intria was assessed $21,022.43 (plus interest), CFP was assessed $317,619.58 (plus interest) and CMI was assessed $16,439.24 (plus interest).
[6] These assessments were based on paragraph 82.(1) of the Act which provides as follows:
82. (l) Every employer paying remuneration to a person they employ in insurable employment shall
(a) deduct the prescribed amount from the remuneration as or on account of the employee's premium payable by that insured person under section 67 for any period for which the remuneration is paid; and
(b) remit the amount, together with the employer's premium payable by the employer under section 68 for that period, to the Receiver General at the prescribed time and in the prescribed manner.
[7] The Appellants complain that this provision required the Appellants to start all over in making employer's employment insurance contributions in respect of employees for whom CIBC and its related entities had already made the maximum annual contribution for 1999. While the Act contains mechanisms for employees to obtain refunds of premium overpayments, the Appellants can find no comparable provision for employers. The employer's premiums can accordingly be paid twice.
[8] In the Appellants' view, this additional levy upon employers is an unlegislated direct taxation within the province and is therefore ultra-vires the Federal Government.
[9] There are two problems with this argument. First, the Appellants have apparently overlooked paragraphs 96.(8.2) and 96.(9) of the Act which provide as follows:
96. (8.2) With respect to 1999, the Minister shall refund to the employer the amount determined by the following formula if that amount is more than $1:
(E2-E1) x P1999
where
EI is the total of all insurable earnings paid in 1998 by the employer, for which premiums were deductible, in respect of employees who were 18 years of age or older but younger than 25 at any time during 1998;
E2 is the total of all insurable earnings paid in 1999 by the employer, for which premiums were deductible, in respect of employees who were 18 years of age or older but younger than 25 at any time during 1999; and
P1999 is 1.4 times the premiums rate for 1999.
...
96. (9) If at any time during a year for which a refund is sought two or more employers are associated, as defined by the regulations, they shall be considered a single employer for the purposes of subsections (6) to (8.4) and any refund shall be allocated to them in the prescribed manner.
[10] There was no evidence presented as to how many of the 803 transferred employees fall within the 18-25 age group.
[11] Second, before raising this constitutional question the Appellants failed to serve the notices required by subsection 57.(1) of the Federal Court Act[2] which provides as follows:
57.(1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
[12] The appeals must accordingly be dismissed and the assessments confirmed.
Signed at Toronto, Ontario, this 3rd day of December 2001.
|
"N. Weisman" |
D.J.T.C.C.
COURT FILE NO.: 2001-1433(EI)
STYLE OF CAUSE: Intria Corporation and M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 25, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge N. Weisman
DATE OF JUDGMENT: December 3, 2001
APPEARANCES:
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
COUNSEL OF RECORD:
For the Appellant:
Name: Alan R. Kester
Erin K. Carley
Firm: Canadian Imperial Bank of Commerce
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 2001-1436(EI)
STYLE OF CAUSE: CIBC Financial Planning Inc. and M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 25, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge N. Weisman
DATE OF JUDGMENT: December 3, 200l
APPEARANCES:
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
COUNSEL OF RECORD:
For the Appellant:
Name: Alan R. Kester
Erin K. Carley
Firm: Canadian Imperial Bank of Commerce
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 2001-1442(EI)
STYLE OF CAUSE: CIBC Mortgages Inc. and M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 25, 2001
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge N. Weisman
DATE OF JUDGMENT: December 3, 2001
APPEARANCES:
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
COUNSEL OF RECORD:
For the Appellant:
Name: Alan R. Kester
Erin K. Carley
Firm: Canadian Imperial Bank of Commerce
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-1433(EI)
BETWEEN:
INTRIA CORPORATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Intria Corporation (2001-1435(CPP)), CIBC Financial Planning Inc. (2001-1436(EI) and 2001-1438(CPP)) and CIBC Mortgages Inc. (2001-1442(EI) and 2001-1444(CPP)), on October 25, 2001 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
JUDGMENT
The appeal is dismissed and the assessment is confirmed in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 3rd day of December 2001.
|
"N. Weisman" |
D.J.T.C.C.
2001-1436(EI)
BETWEEN:
CIBC FINANCIAL PLANNING INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Intria Corporation (2001-1433(EI) and 2001-1435(CPP)), CIBC Financial Planning Inc. (2001-1438(CPP)) and CIBC Mortgages Inc. (2001-1442(EI) and 2001-1444(CPP)), on October 25, 2001 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
JUDGMENT
The appeal is dismissed and the assessment is confirmed in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 3rd day of December 2001.
|
"N. Weisman" |
D.J.T.C.C.
2001-1442(EI)
BETWEEN:
CIBC MORTGAGES INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Intria Corporation (2001-1433(EI) and 2001-1435(CPP)), CIBC Financial Planning Inc. (2001-1436(EI) and 2001-1438(CPP)) and CIBC Mortgages Inc. (2001-1444(CPP)), on October 25, 2001 at Toronto, Ontario, by
the Honourable Deputy Judge N. Weisman
Appearances
Counsel for the Appellant: Alan R. Kester
Erin K. Carley
Counsel for the Respondent: Scott Simser
JUDGMENT
The appeal is dismissed and the assessment is confirmed in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 3rd day of December 2001.
|
"N. Weisman" |
D.J.T.C.C.