[OFFICIAL ENGLISH TRANSLATION]
1999-2761(EI)
BETWEEN:
LUC FORGUES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on December 3, 2001, at Montréal, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant himself
Agent for the Respondent: Philippe Dupuis (Student-at-Law)
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 19th day of December 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 27th day of March 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20011219
Docket: 1999-2761(EI)
BETWEEN:
LUC FORGUES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal from a determination made on April 12, 1999. The decision at the origin of this appeal concerns the insurability of the work performed by the appellant during the periods from April 16 to August 26, 1995, and from August 27, 1995, to May 4, 1996.
[2] The instant case involved work as a pilot for a company with the trade name "Les Ailes de Gaspé Inc."
[3] The determination is based on the following assumptions of fact:
[TRANSLATION]
(a) The payer was incorporated on February 8, 1980.
(b) The payer operated a commercial air navigation business.
(c) The appellant has held a pilot's licence since 1989.
(d) The appellant rendered services to the payer as a pilot or co-pilot.
(e) The appellant was paid $20 an hour.
(f) In 1995, the appellant rendered services to the payer from April 16 to December 20.
(g) On August 28, 1995, the payer issued a record of employment to the appellant indicating the completion of 12 weeks of insurable employment during the period from June 5 to August 25, 1995, and a weekly remuneration of $450.00.
(h) The appellant needed 12 weeks of insurable employment to qualify for unemployment insurance benefits.
(i) During nine of the 12 weeks covered by the record of employment, the appellant worked fewer than 10 hours a week.
(j) The record of employment is false with respect to the number of weeks and insurable earnings.
[4] Only subparagraphs 5(b), (d) and (g) were admitted; the others were denied or the appellant had no knowledge of them.
[5] When he started out as a pilot for "Les Ailes de Gaspé Inc.", the appellant had mainly theoretical knowledge and very limited practical experience¾some 50 flying hours.
[6] He first took stock of all the companies owning a very specific type of aircraft on which he wanted to acquire experience, then applied for a job with all the companies in question.
[7] Only "Les Ailes de Gaspé Inc." answered his application and offered him a job. At first, he had to acquire experience by flying with an experienced pilot until he had 250 flying hours to his credit, the threshold required by insurance companies for coverage on flights when he was responsible for the aircraft.
[8] During the trial, learning or training period, the appellant received remuneration of $80 a week. Once the period was completed, he says he negotiated and agreed with the employer on remuneration of $450 a week, which, the appellant says, was consistent with standards in that field of economic activity.
[9] After working for 12 weeks on the above conditions, the appellant was laid off on the ground that the company's needs had declined and the situation had somewhat deteriorated. The appellant explained that, once he had become unemployed and the contractual relationship had been cut, he had agreed to continue flying without pay, wishing to develop and enrich his experience, but also and, more particularly, to add more flying hours to his credit, an essential factor in potential career opportunities.
[10] He thus explained that he had benefited from this scenario. It would have cost him a fortune to earn the equivalent credits by leasing an aircraft. Thus, after he was laid off, he regularly flew without pay for "Les Ailes de Gaspé Inc.", adding flying hours to his credit at no expense. The appellant received minor amounts between $10 and $50 and contended that they were essentially tips.
[11] To explain why he had continued working without pay, the appellant said that this was the only way to gain the essential experience he would eventually need to qualify for a promising and ideal professional career.
[12] In response to the appellant's claims, the respondent observed that this was essentially a case in which there had been collusion or an arrangement between the parties to make use of the employment insurance program. To substantiate his claims, the respondent emphasized the following facts:
· The appellant received a weekly salary of $450 over 12 weeks, exactly the number of weeks required to qualify for benefits.
· The formal layoff could not at all be justified since the pace of the company's economic activity did not decline or slow down; quite the contrary, it was a very active period for "Les Ailes de Gaspé Inc."
· The appellant continued flying to the same or to an even greater extent than before the layoff.
[13] The evidence revealed that the facts in support of the respondent's claims were true, particularly since they stemmed from irrebuttable documentary evidence made available through a seizure conducted at the company as part of a large investigation.
[14] In view of the fact that the information gathered by the respondent was obviously true, the appellant contended that he had essentially been a victim of, and not at all an accomplice in, the actual system established by the business.
[15] To explain and justify why he had had to act as a victim for such a long period, the appellant argued that he had had to agree to submit without objecting or talking back, since the scenario nevertheless enabled him to acquire exceptional experience by adding flying hours to his pilot profile, the only yardstick of aircraft piloting expertise.
[16] I have no doubt that the appellant viewed "Les Ailes de Gaspé Inc." as a real springboard to the experience, recognition and expertise he would eventually need to get an ideal job.
[17] I am also convinced that the appellant's passion for flying made him an easy and vulnerable target for a business that wanted to exploit the employment insurance program to the maximum by having it pay a large portion of its payroll.
[18] These aspects make the appellant's case a very appealing and even particular one, in that I would not want to penalize someone who chose to develop his skills rather than do nothing.
[19] However, I also have an obligation to dispose of an appeal on the balance of evidence and in accordance with the provisions of the Employment Insurance Act (the "Act") and the relevant case law.
[20] In insurability cases, only a true contract of service can and must be characterized as an insurable contract. A genuine contract of service is essentially a reflection of the will of the parties, who provide for the payment of compensation in consideration of a fair and reasonable performance of work, all in the context of an employer-employee relationship involving a relationship of subordination, the main characteristic of which is the power to control the remunerated work.
[21] A genuine contract also results from the consent of the parties and generally has effects only between the contracting parties.
[22] In this case, the appellant testified that the employer one day decided to put an end to the contract of employment. This was an indisputable power of the employer, which had to follow up its decision by issuing a notice of termination, thus formalizing the legal break.
[23] In fact, the evidence showed that there was never a legal or actual break based on one of the fundamental components of the contract, the performance of work. The documentary evidence clearly showed that the appellant continued to perform the same work in the same conditions and under the same terms as he had before the record of employment was issued, except that he had stopped receiving adequate remuneration.
[24] On the face of it, the situation was not desired or wanted by the appellant. The passage of time and the absence of evidence that he expressed his disagreement are factors that clearly show he acquiesced, or at least tacitly assisted, in what was nothing other than an arrangement to have a portion of the salary owed him for the performance of his work paid not by the employer, but by the state, through the employment insurance program.
[25] The Act involves only those who have actually lost their jobs. In the instant case, the appellant did not lose his job either in fact or in law. He merely agreed to his employer's withdrawing from his obligation to pay him the remuneration arising from his employment as a pilot. That agreement or consent to this shaping of the original contract made him a full-fledged accomplice in the scheme. Such a scheme disqualified the contract or at least made it impossible to characterize the contract as insurable.
[26] For these reasons, the appeal must be dismissed.
Signed at Ottawa, Canada, this 19th day of December 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 27th day of March 2003.
Sophie Debbané, Revisor