Date: 20010411
Docket: 2000-2230-EI
BETWEEN:
SUCO : SOLIDARITÉ UNION COOPÉRATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
NICOLE POMERLEAU,
Intervenor.
Reasons for Judgment
Watson, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on January 10, 2001.
[2] The dispute concerns the determination of the insurable earnings and the insurable hours accumulated by Nicole Pomerleau from February 18, 1996, to February 28, 1997, when she worked in Peru as a volunteer for the appellant, Suco : Solidarité Union Coopération.
[3] On November 9, 1998, the respondent determined that Ms. Pomerleau held insurable employment from March 1, 1995, to February 28, 1997, when she worked for the appellant. Unfortunately for the appellant, that determination was not appealed to this Court within the prescribed time and the question of whether the employment held by Ms. Pomerleau during the period at issue was insurable within the meaning of the Employment Insurance Act ("the Act") is therefore not before the Court in this appeal. The dispute relates solely to the determination by the Minister of National Revenue ("the Minister") dated June 3, 1999, of the insurable earnings and the insurable hours accumulated from February 18, 1996, to February 28, 1997.
[4] In making his decision, the Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) Nicole Pomerleau held insurable employment when she worked for the appellant from March 1, 1995, to February 28, 1997.
(b) The worker's schedule was 9:00 a.m. to 5:00 p.m., or 40 hours a week.
(c) From August 25, 1996, to February 28, 1997, the appellant paid Ms. Pomerleau:
· a monthly living allowance of $910.00;
· a monthly allowance of $416.00 for a principal residence and a second residence;
· a monthly reintegration allowance of $200.00;
· a monthly allowance of $100.00 for costs incurred in Canada;
· $300.00 to reimburse her moving costs on her return to Canada.
(d) During that period, Ms. Pomerleau received $10,434.00 through the various allowances and the reimbursement of costs.
[5] At the hearing, the appellant's agent denied paragraphs (a) and (b) and admitted paragraphs (c) and (d).
[6] The appellant argued that Ms. Pomerleau was a "co-operant/volunteer" when she worked for it in Peru and that the amounts she received are not insurable earnings since they were not wages but rather amounts that enabled her to meet her basic food, clothing and transportation needs for her stay in Peru; the amounts paid to volunteers like Ms. Pomerleau can be distinguished from wages in that they are in no way related to the volunteers' training or experience but depend rather on the cost of living in the place where the work is done.
[7] The respondent argued, on the contrary, that the services provided to the appellant by the employee constitute insurable employment; accordingly, the number of insurable hours for the period from February 18, 1996, to February 28, 1997, amounts to 1,935 in accordance with sections 10 and 94.1 of the Employment Insurance Regulations ("the Regulations"), while the earnings amount to $10,434 in accordance with subsection 3(1) of the Unemployment Insurance (Collection of Premiums) Regulations, now subsection 2(1) of the Insurable Earnings and Collection of Premiums Regulations.
[8] The burden of proof is on the appellant, which must show on the balance of evidence that the Minister's decision is unfounded in fact and in law. Each case turns on its own facts.
[9] Section 2 of the Insurable Earnings and Collection of Premiums Regulations reads in part as follows:
2. (1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and
(b) the amount of any gratuities that the insured person is required to declare to the person's employer under provincial legislation.
. . .
(3) For the purposes of subsections (1) and (2), "earnings" does not include
(a) the value of board, lodging and all other benefits received or enjoyed by a person in a pay period in respect of the employment if no cash remuneration is paid to the person by the person's employer in respect of the pay period;
(a.1) any amount excluded as income under paragraph 6(1)(a) or (b) or subsection 6(6) or (16) of the Income Tax Act;
. . .
[10] Insurable hours are determined under sections 10 and 94.1 of the Employment Insurance Regulations, as follows:
10(1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment.
. . .
94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week or insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment.
[11] When all the circumstances of this appeal, including the testimony of the appellant's executive director and Ms. Pomerleau, the admissions and the documentary evidence, are considered in light of the Regulations, the Court is satisfied that the appellant has not discharged its burden of proving on the balance of evidence that the Minister's decision is unfounded in fact and in law. The amounts paid by the appellant to Ms. Pomerleau were paid in respect of insurable employment during the period at issue, even where those allowances were not paid in consideration of the work performed. The cash amounts paid for her board and lodging are not excluded from the calculation of insurable earnings under paragraph 2(3)(a) of the Insurable Earnings and Collection of Premiums Regulations. As for the calculation of insurable hours, for which the Minister relied on sections 10 and 94.1 of the Employment Insurance Regulations, no contrary evidence was adduced by the appellant.
[12] Therefore, the appeal is dismissed and the Minister's decision is confirmed.
Signed at Ottawa, Canada, this 11th day of April 2001.
|
"D. R. Watson" |
D.J.T.C.C.
Translation certified true on this 31st day of October 2002.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-2230(EI)
BETWEEN:
SUCO : SOLIDARITÉ UNION COOPÉRATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
NICOLE POMERLEAU,
Intervenor.
Appeal heard on January 10, 2001, at Montreal, Quebec, by
the Honourable Deputy Judge D. R. Watson
Appearances
Agent for the Appellant: Gervais L'Heureux
Counsel for the Respondent: Pascale O'Bomsawin
For the Intervenor: The Intervenor herself
JUDGMENT
The appeal is dismissed and the Minister's decision confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 11th day of April 2001.
|
"D. R. Watson" |
D.J.T.C.C.
Translation certified true on this 31st day of October 2002.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]