Tax Court of Canada Judgments

Docket: 2001-1708(EI)

BETWEEN:

ERNEST EASON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

THE LABOURERS INTERNATIONAL UNION, LOCAL 1208,

Intervenor.

____________________________________________________________________

Appeal heard on December 10, 2002 and on September 29, 2003

at St. John's, Newfoundland.

Before: The Honourable Justice T.E. Margeson
Appearances:
Counsel for the Appellant:	Randell J. Earle
Counsel for the Respondent:	Cecil Woon and Susan McKinney
Counsel for the Intervenor:	Kenneth W. Jerrett and Kevin F. Stamp

____________________________________________________________________

JUDGMENT

          The appeal pursuant to subsection 103(1) of the Employment Insurance Act is dismissed and the decision of the Minister, on the appeal made to him under section 91 of the Act is confirmed.

Signed at Ottawa, Canada, this 7th day of November 2003.

"T.E. Margeson"

Margeson, J.

Citation: 2003TCC775

Date: 20031113

Docket: 2001-1708(EI)

BETWEEN:

ERNEST EASON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

THE LABOURERS INTERNATIONAL UNION, LOCAL 1208,

Intervenor.

AMENDED REASONS FOR JUDGMENT

Margeson, J.

[1]      The Appellant applied to the Respondent for determination of the number of insured hours and his insurable earnings while he was employed with the Labourers International Union, Local 1208 (the "Payor") for the period from August 30, 1999 to September 9, 2000 (the "period in question") within the meaning of the Employment Insurance Act (the "Act") the Employment Insurance Regulations (the "Regulations") and the Insurable Earnings and Collection of Premiums Regulations (the "IECPR").

[2]      The Respondent informed the Appellant that it had been determined that his engagement with the Payor during the period in question was insurable employment and he was employed pursuant to a contract of service with insurable earnings and insurable hours as reflected on the Record of Employment ("R.O.E.") (#A24243619) issued to him.

[3]      In this decision the Minister determined that the Appellant worked in insurable employment for 1,380 hours during the period in question in accordance with subsection 10(1) of the Regulations and that the Appellant's earnings from insurable employment for the last 27 weeks of the period in question were $17,275 pursuant to subsection 2(1) of the IECPR. From this decision the Appellant filed a Notice of Appeal dated April 11, 2001.

[4]      In his opening remarks, counsel for the Appellant indicated that the only issue was the number of hours during which the Appellant was employed during the period in question. Further, whether the Appellant was employed on an every second week basis at a set salary or on an every week basis on a salary of one-half the two-week basis. Further, the amount of insurable earnings was in issue.

[5]      Deanne Hennessey testified that she worked for the Payor and was employed there for about nine years. She knew the Appellant. He was a co-worker and a business agent for Eastern Newfoundland. He had also been President of the Local. Her job was office administrator. Up until September 2000, her fellow workers were Pat McCormick, Joseph Whiffen, Gus Coombs, Ernest Eason and possibly Vic Slaney. She was in the general office and she was able to determine who came in and out of the office.

[6]      Ms. Hennessey recalled the period between August 30, 1999 and July 2000. During that time Mr. Eason's duties were dealing with the labour arbitration hearings and handling any inquiries concerning the workers. During the period of August 30, 1999 to July 2000 the Appellant did come into the office but she did not know if he was in every day or not. He would not necessarily come in to the office every day. This was the case even before the period in question. There was no significant difference in the amount of time that he spent in the office before or after the period in question.

[7]      In cross-examination, Ms. Hennessey said that there was an Executive Board meeting on May 31, 1999.

[8]      The Appellant testified that up to September 9, 2000 he was employed by the Intervenor as business agent except for four weeks when he was an organizer. He had been a business agent since 1986 for Eastern Newfoundland. His duties included looking after the hiring list. He visited job sites and dealt with contractors with respect to grievances. He looked after health and welfare issues and pension issues. He also referred members to employers.

[9]      He recalled the issue of the reduction of the number of employees which came up in May 1999. It came up at their Executive Board meeting. It was put forward by Pat McCormick, the business manager. He considered having one area business agent only instead of four. He proposed a reduction in staff and a reorganization of the position. This was not agreed upon. Then they considered doing a week-on and a week-off for the agents. The Appellant disagreed and told the Board and Pat McCormick. He spoke to Pat McCormick during the meeting and afterwards in his office. Mr. McCormick said if the arrangement was agreed upon, at a later date those affected would be reimbursed for the week off when funds became available.

[10]     Some of the training facilities were up for sale and he thought that funds might be made available from that source. He discussed with Pat McCormick this aspect of the matter and indicated that he had a number of important cases before the Labour Relations Board which were coming up and the dates would coincide with his week off. He would sit in on the hearings and act as advisor to legal counsel for the Union. They also talked about making application for employment insurance benefits. The Appellant believed that he would be over the threshold of $39,500 and would have to pay the money back if he applied for employment insurance benefits. He was told by Pat McCormick to continue with these cases before the Labour Relations Board and to report for work every day as usual. If anyone in the office had any questions about it he would deal with Pat McCormick. There was no talk about taking time off instead of pay for attending the hearings. He attended the hearings for the Whiffen Head Project which was a long hearing. He acted as advisor to the legal counsel on that case.

[11]     He made reference to Exhibits A-1, A-2 and A-3 and was able to identify the dates that hearings were held which he attended from start to finish. His expenses with respect to attendance at these hearings were paid for by the Local.

[12]     He reported for work every day. The weeks that he was supposed to be off he reported for work and visited job sites. He attended meetings and hearings including the building's trade meetings which were held once per week on Monday. He was able to refer to particular hearings which he attended and the matters and specific companies that he dealt with.

[13]     No one replaced him and no one performed any of his duties. He would attend meetings of the Atlantic Regional Council and was an auditor with the Atlantic District Council. He did it before August 30, 1999 as well. The welfare plan was administered by the manager and a board of trustees locally. He was a labour trustee on that board during the period in issue. He attended meetings of that board of trustees. These were held during normal business hours.

[14]     He also attended conferences in different parts of North America with the Labourers International Foundation. He was there as a delegate of Local 1208. This was not during the period in issue.

[15]     With respect to his remuneration he received a cheque every two weeks from Local 1208 but also received a per diem allowance for vehicle and meals each week of $300. During the first five to six weeks he received both cheques together but then he took it every other week as suggested. Exhibits A-3 and A-4 were accepted as having been proved.

[16]     In cross-examination he said that prior to August 1999 he was a local business agent and President of the Union. He worked 40 hours a week, nine to five, Monday to Friday. That was the agreement that he had. Sometimes he had to take telephone calls at home. He was paid for 40 hours a week, he kept no timesheets and he was paid weekly. The Union had quarterly Executive Board meetings except during the summer.

[17]     In 1999 they did not review the minutes of the previous meeting or approve them. On May 31, 1999, they had a meeting. He was there, Pat McCormick was there, Rick Anderson may have been there, Gus Coombs was there, Paul Stamp was there as well as Andrew Coady. Pat McCormick did not say that everyone would have to work a week-on and a week-off except, Deanne and Joseph. He did not say anything about Vic Slaney staying. He was an organizer. He did say that the business agents would have to have a week-on and a week-off. The Appellant did not agree with this arrangement.

[18]     Not everyone there agreed or acquiesced in the arrangement put forward. Mr. Coombs disagreed with Mr. Slaney being laid off. Mr. Coady and Mr. Stamp were not on the payroll and had no comment. Pat McCormick proposed that if the arrangement was accepted then there would be a reimbursement for those affected when the funds became available. They did not intend to call any of those other persons who were present at this meeting. He agreed that between August 30, 1999 and July 2, 2000 he worked as a business agent under this new arrangement. He said: "That was the arrangement."

[19]     Between July 2, 2000 and September 8, 2000 he worked as an organizer. Between August 30, 1999 and July 2, 2000 he was paid $1,100 on alternate weeks. That was for the week that he was supposed to work 40 hours. He worked nine to five, Monday to Friday, based on a 40-hour week.

[20]     On alternate weeks he was not paid. He continued to work every week. For the first five weeks he was paid every second week and then he was paid one week for pay and then expenses every other week. He received a per diem allowance before the new arrangement came into effect. This was additional to his regular pay cheque. Between August 30, 1999 and July 2, 2000 he received a regular pay cheque and then received a per diem cheque for off-weeks. He did not receive his regular pay cheque. He did not keep any timesheets but he worked the same as if this new arrangement had never happened.

[21]     He denied that he had spoken to Pat McCormick on the telephone during the first week that he was supposed to be off. He said that he spoke to him in person after the Executive Board meeting on May 31, 1999 and he spoke to him in his office. He had concerns about the ongoing work that had to be completed. He also talked about the reduction and what he based it on. He was satisfied that a decision had been made. The new arrangement was to commence the week of May 31. Another concern that he had was whether or not he would file for employment insurance. He did not file.

[22]     Pat McCormick told him to continue with his work on the cases before the Labour Relations Board. The Appellant said that he would be coming in to work on the same basis as he always did. When it was suggested to him that it had been decided to reduce his work to every second week he said that that was not his impression. "There was no discussion about the off weeks." He talked to Pat McCormick at the Executive Board meeting and it was agreed that he would work full-time and he continued to do so.

[23]     He was asked when Mr. McCormick expressly agreed with him that he would continue to work full-time and would receive only one-half of his pay now and the balance when the money became available. He said that it was the next week following the Monday Board meeting. He said it was on May 31, the day of the Board meeting at Pat McCormick's office. He said: "It would have to have been agreed at his office." Then he said that Pat McCormick said to him: "You will continue working as before." He was only talking about himself. This was different from the Executive Board meeting. He did not get it in writing and kept no record of the meeting. He identified his signature in Exhibit R-1 and said that it was correct.

[24]     In cross-examination by counsel on behalf of the Intervenor the Appellant said that the Board meeting was held on May 31, 1999 and six people attended. Mr. McCormick announced the work-sharing and the work-reduction due to the economic situation. The proposal was that the parties work one week-on and one week-off. He was the only one opposed to it in principle. He was in the minority. There was not a great advantage for him to draw employment insurance. This was discussed at a meeting with Pat McCormick. When he left the Board meeting he knew that his choices were to apply for employment insurance and risk having to pay it back and he decided not to apply. It was clear to him that he would not be drawing his salary every second week. This knowledge came to him from the Board meeting.

[25]     He was asked about the meeting with Pat McCormick afterwards on Monday and what the expressed statement was of Pat McCormick that he would be paid for those weeks. He said: "I can't say word per word what was said." When he worked more than 40 hours before, he only received pay for 40 hours. He believed that the decision that was made to keep someone else on was because of the persons involved.

[26]     He believed that he should be kept on. He was asked why he used the term, "the week I was supposed to be off" and he said that came up the week that Mr. Coombs came in to the office. He was there. He did not tell him that he had another arrangement. It was suggested to him that he must have had some discussion about the fact that he should not have been in the office at that time. There was no response to this. It was suggested to him that at the board meeting of May 31, the issue came up about them all being paid when money became available. What would they be paid for? Would they be paid if they did not work or only if they worked like he did? He said that the basis for him being paid was that he would report for work and continue with these cases. Pat McCormick told him to carry on with the work that he was doing. He admitted that he did not receive his regular pay cheque during the period in question.

[27]     In re-direct he was asked what his understanding was of what would be paid, when it would be paid and why it would be paid? He said that he would continue on to work and to receive his pay cheque ($1,100) every second week and then be paid when funds became available. He admitted that he did not have any arrangement with the Board but only with Pat McCormick to continue on with his regular work schedule. The final say goes to the business manager under their Constitution. The business manager is an elected position.

[28]     The Respondent called Joseph Whiffen who was the Comptroller for Local 1208. He has a business diploma. He had been with the Union for three years and was there in May of 1999. He identified Exhibit R-2, the R.O.E. and said that he prepared it. He also prepared the payroll and identified Exhibit R-3. He indicated that after September 11, 1999 the Appellant was paid on alternate weeks. He was asked why he was paid alternate weeks up to July 2, 2000. He said that Pat McCormick instructed him that all the employees would be going on a week-on and a week-off basis. On August 30, 1999 and July 2, 2000 the Appellant was paid 23 weeks for 40 hours a week for a total of 920 hours. Between July 3, 2000 and September 8, 2000 he was paid for 10 weeks at $50 a week or 500 hours. He had 1,420 hours.

[29]     He identified Exhibit R-2, the R.O.E. he had completed on behalf of the Local regarding the Appellant. The Appellant was paid a per diem for meals and travel, gas and vehicle. It was paid to the Appellant for alternate weeks because he asked for a change. At first the Appellant was to be paid the week that he worked and he had to obtain permission to accommodate the request made by the Appellant to change it.

[30]     In cross-examination he said that he did not know the last day that the Appellant worked and he did not know what the last day was that he was paid for. He issued Exhibit A-5 which was a R.O.E. from the Local. Box 11 showed that the last day for which the Appellant was paid was August 6, 1999.

[31]     There was a three-week gap between Exhibit A-5 and Exhibit R-2. The witness said that the Appellant was off the first three weeks. He was not in the office during those three weeks. He admitted that he was told that the employees were to commence week-on, week-off.

[32]     During 1999 there were people working the week-on and the week-off routine. The Appellant was not one of them. At first he said he did not know when the Appellant started the week-on, week-off routine but he said it would be around the end of August 1999. He would have given Exhibit A-5 to the Appellant around about the date he signed off on it which was August 6, 1999. During the 52 weeks prior to August 6, 1999 the Appellant was paid for every week. He came up with the figure of 2,120 hours from the payroll records. They did not pay people when they were not employed.

[33]     In cross-examination by counsel for the Intervenor, he said that he must apply the information for the last 53 weeks in his calculation of insurable hours. There were no problems with Exhibit R-2. The period he was asked about was not in the 53 weeks prior to September 9, 2000. He concluded that someone was paid to work and if they did not get paid they were not working.

[34]     Pat McCormick was the business manager for Local 1208 and was elected in 1985. On May 31, 1999 there was a Board meeting of the Local. Mr. McCormick, Ernest Eason, Andrew Coady, Ed Hallahan, Gus Coombs and Paul Stamp attended. Richard Henderson was a Board member who was not there. There was a downturn in the Local revenue and he had to reduce the payroll. He put forward the proposition that Vic Slaney be laid off and the rest would work part-time except for the principle office people. He was asked what he meant by "part-time" and he said a week-on and a week-off, on a rotation basis. He put forward this proposal but Gus Coombs was concerned that Vic Slaney would be laid off completely. He said that he should be week-on, week-off as well. Three other persons also spoke and indicated that Mr. Slaney should be involved on the rotating basis also.

[35]     Mr. McCormick and Gus Coombs would work one week and the Appellant and Vic Slaney would work together. The Appellant questioned why Mr. Coombs was working with him. The Appellant and Mr. Slaney were advised to proceed to work on that basis. The Appellant had only one issue and that was how the pairing took place. He was not concerned about the week-on, week-off position. He was asked whether he agreed that the people affected would get paid for weeks off. He said that there was no discussion about that.

[36]     He went out of town. The following week on Monday, Mr. Coombs called him. He wanted to know what Mr. Eason was doing in the office. He told him that he did not know but he would talk to him. He telephoned and he was told that he wanted to discuss it with him. He went into his office and Mr. Eason said he would prefer to be in the office volunteering. Mr. Coombs asked him if he was going to send him home and he said no. He was volunteering his time. Then, in the afternoon, Mr. Coombs came in and he said that he and Vic Slaney were going to volunteer their time as well so as to keep contact with the office.

[37]     In August, Mr. McCormick called all three into his office and said that he appreciated the work that they were doing on a voluntary basis. He said that if and when funds became available, they would get paid for volunteered time. At the Board meeting there was no reason to discuss the payments because no one had commenced voluntary time. He did not tell Mr. Eason that he would be paid other than telling him in August that he might be paid.

[38]     After August 30, 1999 to July 2, 2000, Mr. Eason's pay was $1,100 per week plus a per diem for weeks worked. They usually worked more than 40 hours. They were paid for 40 hours and the salary reflected that. His position was the only full-time elected position. He did not have to be a part of the work-sharing but he chose to do so to treat himself the same as the others. He was referred to the Notice of Appeal and he disagreed with its contents. He said that Mr. Eason agreed that he would work full-time. He agreed to volunteer his time as well as the others who came in later on. The Union was not in bankruptcy or receivership.

[39]     In cross-examination the witness said that the Union is presently under supervision. That has the effect of removing the elected officers but he continued as business manager. The Executive Board is suspended.

[40]     Mr. McCormick was familiar with the Constitution of the International and of the Local as well. As business manager he has the authority to discharge field representatives under the Constitution. They have been referred to as "field representatives", "area representatives" and "union representatives". The direction and control of the field representatives is that of the business manager. As business manager, he was in charge of, directed and supervised Mr. Eason and all others as well. A field representative is recommended by the business manager and the Board can accept or reject it. The business manager can submit a new name if the first one is rejected.

[41]     Mr. McCormick is the Chief Executive Officer. Joe Whiffen is the Comptroller and is supervised by him as well. The salaries of the staff of the Local, when the Union is in financial difficulty, have to be voted on by the membership at two consecutive meetings. Work-sharing was not approved by the membership. It was not a reduction of salary. This was a decision that had to be made. He brought it to the Board for their recommendation but he had the authority to do it on his own if he wanted to. The executive could not make it without his authority.

[42]     At the May 31 meeting, he did not recall Mr. Coady or any member bringing up the question as to why a member would be paid when not working. He did not recall a meeting with Mr. Scott Nightingale of Canada Customs and Revenue Agency ("CCRA") in which he told him that he would recommend that a person be paid for a week off. He said that if and when the monies became available, they would be paid. That decision would have been his.

[43]     He did not discuss it further with Mr. Eason until the first week of the week-on, week-off system. The week that he spoke to Mr. Eason would have been the week he was scheduled to be off. Mr. Eason and he discussed ongoing matters and when Mr. Eason volunteered his time, Mr. McCormick told him that he would continue to do these matters. He did not know if he identified particular matters that he would continue with. It is a practice of a local to have someone go to the Board as an advisor to the legal counsel. The Whiffen Head Project had been an ongoing matter. There was an ongoing dispute about the jurisdiction at the site. It was important to the unions. Mr. Eason represented the Union at the hearings. The initial steps would be rather extensive but after that they would not be.

[44]     Most of the relative information would be brought out at the first stage of the hearings. The Whiffen Head hearings before the Labour Relations Board came about as a result of a number of unions challenging the arrangement of Local 1208 with the company. This would be the opportunity for Local 1208 to present its response to the application by the contesting unions.

[45]     Mr. Eason was the representative from the Union advising counsel throughout the hearing. He would have assigned Mr. Eason to perform that function and would have had discussions and dialogue with him during the session. It went on after they made the rearrangement of the work force at Local 1208. Mr. Eason would have handled the hearings on his weeks on and this witness would do it during Mr. Eason's weeks off. This witness would have had discussions with Mr. Eason about the hearing following the rearrangement of the work force at the Local. Mr. Eason did not say that there was any problem with that arrangement. This witness did not act as an advisor at the Whiffen Head inquiry after the changes in the work arrangements took place at the Local.

[46]     He confirmed that Mr. Eason acted as the Union's representative at the hearing regarding Fred Doucet's roofing company. He did not know if the hearings would have been at Cornerbrook or elsewhere. He took the position that if Mr. Eason sat on behalf of the Union as advisor to counsel, he was acting as a volunteer. It was a continuation of Mr. Eason's statement that he made to him in the office that he would rather be in the office than at home.

[47]     Mr. Eason had responsibility for the work list for the eastern region. This list is made up of the members who asked to have their name put on it and the workers are taken from that list as they are required according to their position on the list.

[48]     When Mr. Eason was not there Gus Coombs would have been the person to look after the list. Mr. McCormick, Gus Coombs, Ernest Eason and Vic Slaney were the ones in the St. John's office who were work-sharing. He did not recall whether Mr. Coombs represented the Union when Mr. Eason was off. Mr. Slaney would be working in the office when Mr. McCormick was off performing any of his duties.

[49]     He was interviewed by Mr. Nightingale of CCRA on the telephone. He did not recall exactly what transpired. He would assume that he had a series of questions to ask him.

[50]     He admitted that the Union and its associated bodies had significant real estate assets during these hearings. The assets would have been valued at between $2 million and $3 million. In the year 2001, none of these buildings were for sale. Some of these companies had indebtedness to the Union. The Board of directors had 50 per cent Union members on them. He did not believe that the other directors were put there by the Union. When asked how else they could have been there, he said that he could not answer that.

[51]     His conversation with Mr. Nightingale would have been to the point that anyone who volunteered work would be paid if they had the money from the sale of assets. He would make efforts to have them paid. It would not be his decision.

[52]     The matter of hiring the organizer is not that of the business manager. He can recommend him to the Executive Board. That is how Mr. Eason was hired as his assistant.

[53]     After being referred to the Union Constitution, the witness confirmed that he had the right to fire the field manager but he did not have the right to hire him. He did have the supervision of him. He also was referred to paragraph 88 which indicated that hiring is only on the recommendation of the business manager.

[54]     He made the decision to have the workers work one-half the time and took it to the Board and they accepted it. Ultimately, Mr. Eason was laid-off by the Union. He did not recall the date. The last election for the Union was in the year 2000. Mr. Eason was probably laid off within two months of the election. He lost his position as President of the Union. Vic Slaney was elected as President. He worked the alternate week to the business manager. He did not support anyone in the election. He was perceived as having supported Mr. Slaney and was perceived as doing other things as well.

[55]     He assumed that Mr. Eason was on the "out of work" list but Mr. Eason never spoke to him about it. After the work arrangement, was put into effect the Union was involved in the dispute with Brook Enterprises from Cornerbrook. There were Labour Relations Board meetings in Cornerbrook. Mr. Eason acted as the Union's representative for those matters and the Union paid his expenses. Further, Parsons Trucking had a dispute with the Union and Mr. Eason was the representative for these hearings prior to the 2000 election. It went on for quite a long time and is still going on.

[56]     After Mr. Eason was laid-off from the Union he was not representing the Union at any hearing. He is still a member in good standing of the Union. When he was laid-off by the Union, he was finished with the Union, and before that he was week-on and week-off.

[57]     This witness did not file any employment insurance claim. It would not have been any benefit for him to do so. He did not suggest to Mr. Eason that he file or not file. There was probably a conversation about it and he would have told him what his intentions were.

[58]     During the work arrangement the workers were paid for the hours they worked. They were paid the same salary. The per diem allowance was paid prior to the work arrangement. It may have been $250 a week. This may have changed at the time of the work arrangement, but he was not sure. It may have been $300 a week. To the best of his knowledge they did not get it during the week-off. There was a request made that they receive their per diem during the week that they did not work. The only week for which you are entitled to receive the per diem is the week during which you are employed.

[59]     The Constitution may say that the reduction in salary has to be voted on but this did not take place with this Local. If this were a voluntary arrangement then the International would not push the Constitution unless there was a complaint by one of the recipients. Mr. Eason did not complain to him. He is the Chief Executive Officer of the Local.

[60]     He was asked how he could contemplate that people would be paid for work that they had not done, that is, while they were volunteering. His answer was that they would be compensated for the time that they volunteered. He did not say that they would be retroactively considered to be employed.

[61]     Mr. Slaney was not part of the Executive Board but three others were. There were seven in total. Mr. Hallahan was working on the West Coast and was employed. He was also part of the work arrangement. This witness would have abstained from voting on the compensation for the voluntary work and this could have resulted in a tie at the Board.

[62]     In cross-examination on behalf of the Intervenor, the witness said that it was his intention that if Mr. Eason was not available to go to the Labour Relations Board hearings he would go in his place. He relied on counsel continuing to be there. The ongoing matters still require a Union representative and Mr. Eason is not the advisor. It is satisfactory.

[63]     With regards to the matter of setting salary, this is in the domain of the Executive Board. If there was a reduction it would have to be done by the Executive Board. Any compensation for voluntary time would be made by the Board on the business manager's recommendation. The work arrangements started in 1999 and in the year 2000 every position, including his own, were up for re-election plus the Executive Board. Most positions were contested. His was not. If he was not re-elected as business manager, he would have made a recommendation to the new Board regarding compensation for voluntary time and it would be up to the Board. There was no guarantee that it would be paid. He did not have to take work-sharing or a cut in wages, but he did so. No one including Mr. Eason, complained about the arrangement. He did not recall whether the sale of assets was known before the work arrangement was started.

[64]     He was referred to Exhibit R-2, the R.O.E. of Ernest Eason, and he said that there was a time when Mr. Eason was terminated as organizer and hired as business agent, but he had nothing to do with his change in salary.

Argument on behalf of the Appellant

[65]     In argument, counsel for the Appellant agreed that this case must be decided on its facts. The law is not in dispute. The question to be asked is, during all of the disputed period, was the Appellant engaged in insurable employment?

[66]     The Appellant has testified throughout that he conducted himself exactly as an employee would. He went to the office and performed his duties with respect to the staff and then went to the Labour Relations Board hearings as an advisor to legal counsel for the Local in matters ongoing in which he had previously acted. There was no discussion about compensating the Appellant for time off. He talked to Mr. McCormick and was told to continue on. He spoke to Mr. McCormick in his office after the Board meeting about how these important functions regarding the Local's business would be carried on with respect to the Labour Relations Board hearing and he was told to continue on.

[67]     The Appellant said that there was discussion that in the event that funds became available (from the sale of assets), these persons would be reimbursed and compensated. One must ask the question: What would they be compensated for? This is not a charitable organization.

[68]     What happened was not a reduction in work but a reduction in wages with a reasonable expectation that Mr. Eason would get the amount later that he did not receive on an ongoing basis.

[69]     Every Monday morning Mr. Eason went to the Business Trade meeting to attend on behalf of the Union. He did all things exactly the same as he had done before the work arrangement.

[70]     Mr. McCormick said that all of the workers did this. Their compensation in the future was not just a pipe dream. The Union had assets for sale at the time. Mr. McCormick brought the matter forward.

[71]     Why would Mr. McCormick state that he would absent himself from the vote. He was only preparing for subsequent questions of counsel leading to the conclusion that there would have been a majority vote.

[72]     The workers could not give themselves a gratuity. They could only compensate themselves for employment. The ordering of compensation and the absence of employment are mutually exclusive. The fact that it was done by four people who were performing all of the same duties as they had performed previously as employees is important. It would not be probable that all of these employees would so act. One would not expect that anyone would do this all of the time for free.

[73]     Counsel submitted that the appeal should be allowed and that the Court should find that the Appellant, during the period in issue, was in insurable employment for the whole period and that he should be assessed as having been engaged in insurable employment for the whole 27 weeks as opposed to 18 weeks as proposed by the Minister.

Argument on behalf of the Respondent

[74]     Counsel for the Respondent stated that the questions in issue in this appeal are: (1) what are the insurable hours and (2) what were the insurable earnings? The Minister's findings that the Appellant was engaged in insurable employment for 1,380 hours for total insurable earnings of $17,275, as indicated in Exhibit R-2, is the proper result.

[75]     Regulation 10(1) is applicable rather than Regulation 9(2). Under Regulation 10(1) the Appellant is deemed to have worked 1,380 hours as set out in Exhibit R-2, the R.O.E. for the Appellant during the appropriate period.

[76]     Regulation 10(1) states as follows:

      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.

In the case at bar the evidence of the employer, and the R.O.E., Exhibit R-2 indicate that the Appellant worked 1,380 hours and had total insurable earnings of $17,275. This has not been rebutted by the Appellant and no satisfactory evidence has been introduced that he worked otherwise.

[77]     Even if the Court accepts the argument that there was insurable employment during the whole period of time, there was insufficient evidence adduced by the Appellant to indicate what the hours were that he actually worked other than the clear evidence of the employer as set out in Exhibit R-2.

[78]     The Appellant is required to introduce satisfactory evidence to establish on a balance of probabilities the number of hours that he actually worked and he was not able to do so. He has not satisfied this burden. The Minister's decision should be confirmed.

[79]     Counsel referred to a number of cases which are of assistance on the question of the type of proof required to establish the number of hours that were actually worked but these cases are not of assistance on the factual matter which the Court must decide, that is, whether or not the Appellant was working on a full-time basis or only on an alternate-week basis.

Argument on behalf of the Intervenor

[80]     Counsel pointed out that Mr. McCormick decided to reduce expenses of the Union Local. This was done on a consultative basis by approaching the Board and making a recommendation which impacted on other workers as well as the Appellant. Mr. Eason indicated that he disagreed with the decision that was made but the majority ruled. He believed that someone else should be laid-off and that Mr. Cormick could have done it otherwise. It was also noted that Mr. McCormick participated in the work-sharing process.

[81]     In his evidence, Mr. Eason talked about the Executive Board meeting at which they were told that when money became available they would be paid. He answered Mr. Earle that during the Executive Board meeting it was said that if funds became available they would be reimbursed.

[82]     Later on, he said that in a meeting after the Executive Board meeting in Mr. McCormick's office, the same was said. However, the payment for off-weeks did not come up at that time. He referred to what was said at the Executive Board meeting in that they would be paid if funds became available. Then he said that the matter of pay came up at the Board meeting but it did not come up at the private meeting.

[83]     That confirms Mr. Eason's position that this promise was made at the Board meeting. This is denied by Mr. McCormick. If this was said at the Board meeting, why would he have to consult with Mr. McCormick afterwards, at a private meeting in order to receive special treatment, since it was covered at the Board meeting? That is the fundamental dilemma that the Appellant finds himself in. If he had the Board's commitment, why would he consult with Mr. McCormick about staying on to do these important tasks?

[84]     Later on, why would he have to express any concern about it since he had the Board's understanding that they would be paid in full later on. Mr. McCormick said that the week-on, week-off arrangement was clearly put to them and Mr. Eason's only concern was the pairing.

[85]     Mr. Coombs telephoned Mr. McCormick at his office and said that Mr. Eason was there in the office and he wanted to know why. He asked Mr. Eason and Mr. Eason confirmed that he was volunteering his time. Mr. Coombs said that he was just trying to look good before the Union. Then, the next day, all of the other workers decided to volunteer their time as well so as not to look bad in front of the members of the Union. Weeks after that Mr. McCormick said that he would try to get them some pay but he made no commitment.

[86]     The further dilemma that the Appellant has is why would Mr. Coombs be surprised if they had agreed at the Board meeting as Mr. Eason had indicated? Mr. Eason admitted that Mr. Coombs was very surprised and asked why he was there (in no uncertain terms). There were direct questions asked and answers given that show that Mr. Eason knew all along that he had been laid-off. There was obviously no doubt at the Board meeting as to what the situation was going to be. Later on, the Appellant indicated that he was in the minority and that he would have to go along with the majority. Later, the work-sharing arrangement was brought up by Mr. McCormick. That is what was talked about. He indicated later on that because of his week-on and week-off arrangement, he was terminated. Further, he said that he was bound by the arrangement but he was not taking the time off.

[87]     He also admitted that Mr. McCormick made it clear that the new working arrangements would apply to everyone. He answered yes to that question. He talked to Mr. McCormick about filing for employment insurance. How could he be entitled to file for employment insurance if he was continuing on to work as he did before and was being paid for it? If he were laid-off, he could certainly have filed for employment insurance. He agreed with that after the meeting. He had the option of applying for employment insurance and have it clawed-back or not applying at all.

[88]     Mr. Eason was familiar with the Constitution and knew that Mr. McCormick could not bind the Union to pay Mr. Eason for voluntary work. He did say that he would do what he could in appreciation thereof. With respect to the attendance of Mr. Eason at the Labour Relations Board hearings, it was not necessary that he be there. Mr. McCormick said that he would do it if Mr. Eason was not available. These hearings went on after Mr. Eason's employment was finally terminated and others went in his place.

[89]     This is a factually driven exercise. One must look at Mr. Eason's evidence in toto. There was a recognition on his part that he was on part-time lay-off. There was no commitment given because Mr. McCormick could not give it. It was only weeks later that the business came up about the election. Any payment given to the Appellant apart from what is set out in Exhibit R-2 was a gratuitous payment in appreciation for his voluntary work. The appeal should be dismissed.

Rebuttal

[90]     In rebuttal, counsel for the Appellant said that the accountant testified that Mr. Eason was not there during the week-on week-off basis in June. The person who worked in the office did not see much difference in the time that Mr. Eason spent in the office during the period in question and the time that he spent there previously. Why would he go to Mr. McCormick with respect to this problem after the Board meeting? Because Mr. McCormick was all powerful in the Union. All others went into work as well. This is an interesting argument. You would not find all of them doing it on a voluntary basis. One of them might do it but all of them would not. It was a short-term reduction of salary only. It was not a discontinuance of their employment. The Minister's decision is incorrect.

Analysis and Decision

[91]     The Court is satisfied that there are two issues to be decided in this case. The first issue is whether or not the Appellant was engaged in insurable employment at any time other than as set out in the Reply. If he was engaged in insurable employment at any time during the period in issue other than as set out in the Reply, then the Appellant's burden is to establish on a balance of probabilities the number of insurable hours during which he was employed during that period and the amount of the insurable earnings. This burden is on the Appellant from the beginning to the end and the Respondent has no burden in that regard.

[92]     In dealing with the issues, the question of credibility of the witnesses is very significant. In essence, the Court has before it two different scenarios. The scenario put forward by the Appellant is in complete conflict with the evidence presented by the Respondent and the Intervenor (in respect to the main issues).

[93]     The Court is satisfied that the evidence of Mr. McCormick, who is the business manager of the Local, was given in a forthright manner, was complete, detailed, was based upon intimate knowledge of the workings of the Union and as far as this Court is concerned, was given without prejudice with respect to the Appellant or any other member of the Union during the relevant period of time. The Court is satisfied that his evidence was not concocted nor contrived in any way. There was a suggestion that this witness dove-tailed his evidence in anticipation of certain questions that were going to be asked of him and the inevitable thrust of such a suggestion was that these answers were not candid and forthright but were concocted and advanced so as to thwart the conclusion that counsel for the Appellant was attempting to have unfold or believed was inevitable. The Court does not accept this position and does not find that this witness falls under this category whatsoever.

[94]     With respect to the evidence of the Appellant himself, the Court finds that it is not as acceptable as the evidence of Mr. McCormick, and in every case where that evidence is contrary to that given by Mr. McCormick, the Court prefers the evidence of Mr. McCormick to that of the Appellant. The Court is satisfied that the evidence of Mr. McCormick, based upon the overall impression that he has created on the Court, is more than likely to be more accurate and factual than the evidence given by the Appellant.

[95]     Further, the Court is satisfied that a substantial amount of the evidence given by the Appellant himself, having due regard to the evidence given in direct and in cross-examination, corroborates the evidence given by Mr. McCormick. The evidence of the Appellant was inconsistent in a number of respects and it was unreasonable to conclude as he did, if he did so conclude, that he was engaged in insurable employment during the whole period of time and that he was not working on a voluntary basis and on the week-on, week-off scenario as depicted by Mr. McCormick.

[96]     In this regard, the argument of counsel for the Intervenor is well taken where he pointed out a number of instances where the evidence of the Appellant was inconsistent with the position that he takes in this appeal and was consistent with the evidence offered by Mr. McCormick that the parties agreed to work on a week-on week-off basis. This work would not be paid for except in the event that monies became available through the sale of assets from the Local. They might be compensated. Here again, the most believable evidence is that this was not a commitment on behalf of the business manager who was really not in a position to make such a commitment. He merely made a commitment to go to bat for the workers who were on the work-sharing scenario and try to obtain some compensation for them in the event that money became available. There was no commitment on his part other than that. The workers agreed to the work-sharing system from the beginning and certainly after the meeting of May of the Board.

[97]     Even the evidence of the Appellant makes it clear that he considered that he was outvoted at that meeting and he admitted that the majority ruled. It was only after that meeting that he discussed the matter of compensation again with Mr. McCormick and Mr. McCormick said nothing nor did anything which would contradict the earlier decision made by the executive that there would be a work-sharing. At other places in the evidence as well, it is clear that the Appellant took no objection to this work-sharing method and was prepared to go along with it.

[98]     The point made by counsel for the Intervenor is also well-taken where he points out that in a discussion with Mr. McCormick, the Appellant was contemplating making application for employment insurance but he decided not to do so because it was not in his benefit as it would be clawed-back. Why would he be discussing the question of employment insurance if he considered himself to be still employed because he would not be eligible for such? It only makes sense if one concludes that he had accepted the work-sharing method and knew that he was only going to be working part-time and that he would not be restituted for the time that he spent in the office on a voluntary basis, except to the extent that there might be a possibility of him being restituted financially if monies became available.

[99]     He had no reason to believe, and indeed did not believe, that what he would be receiving would be salary or that at any time he would be continuing on in insurable employment as before.

[100] It is also significant that after the Board meeting, the Appellant appeared at the office during a week which he would normally not be working under the work-sharing method and Mr. Coombs confronted him in quite a startled manner and to such an extent that he had to discuss the matter with Mr. McCormick. He, in turn, discussed the matter with Mr. Eason and confirmed that Mr. Eason was only there on a voluntary basis and that he need not go home because this was volunteer work. In response to that Mr. Coombs and the other workers decided that the Appellant might be getting an advantage over them in respect to the way they were perceived by the Union and they decided to go in and work on a volunteer basis as well.

[101] These pieces of evidence are only consistent with the conclusion that the Appellant, from the time of the Board meeting, when the work-sharing was proposed, was prepared to accept it and agreed to go in and work on a voluntary basis in the hope that possibly in the future he might be restituted financially for this work. The Court is satisfied that there was no guarantee that this was going to take place and nothing was said or done by the business manager of the Local, or anyone else on behalf of the Local, to lead the Appellant inevitably to conclude that he would be paid.

[102] The Court does not share the position of counsel for the Appellant that the absence of employment and the matter of compensation are mutually exclusive. Any indication that there might be some compensation in the future was merely a means of thanking the workers for volunteering their time in the event that money became available and in the event that such a payment was to be approved by the Executive Board. Surely Mr. McCormick was not able to commit the Union to such payment and such a payment, although not a pipe dream, certainly was out there in the realm of possibility only. It cannot be equivalated to monies received by the Appellant and the other part-time workers as salary.

[103] Further, the Court does not accept the argument by counsel for the Appellant that one would not expect that all of these people would volunteer their work and agree not to be paid for it. Under the circumstances as disclosed by the evidence, the Appellant himself made it clear why he would do it and the other workers also appear to have wanted to do it to protect their position in the Union. This was certainly a reasonable action on their part having regard to what they obviously concluded was a danger that they faced if they did not perform the same voluntary work as the Appellant.

[104] The Court is not moved by the fact that Mr. Eason and the other part-time workers performed the same tasks as they performed while they were employed. One would expect that they would do the same type of thing as that is what they were trained to do as employees.

[105] In the circumstances, the Court finds that their actions were not improbable or unexpected and indeed were reasonable under the circumstances. In the end result, the Court is satisfied that the Appellant has not met the burden upon him by showing that the Minister's decision was incorrect.

[106] With respect to question 1, the Court is satisfied that the Appellant has not shown, on the balance of probabilities, that he was engaged in insurable employment at any time other than those periods of time as referred to in Exhibit R-2, his own R.O.E.

[107] If the Court were satisfied that the Appellant was engaged in insurable employment at some time other than those periods set out in the R.O.E., and as relied upon by the Minister, the Court is not satisfied that the Appellant established, on the balance of probabilities, what the number of hours of insurable employment would be and what the insurable earnings were. No evidence of a specific nature was introduced by the Appellant in this regard and he would fail in that burden as well.

[108] In the end result the appeal is dismissed and the Minister's decision is confirmed.

Signed at Ottawa, Canada this 13th day of November 2003.

"T.E. Margeson"

Margeson, J.

CITATION:	2003TCC775
COURT FILE NO.:	2001-1708(EI)

STYLE OF CAUSE:

Ernest Eason and The Minister of National Revenue and The Labourers International Union, Local 1208

PLACE OF HEARING:

St. John's, Newfoundland

DATES OF HEARING:	December 10, 2002 and September 29, 2003.
REASONS FOR JUDGMENT BY:	The Honourable Justice T.E. Margeson

DATE OF JUDGMENT AND	November 13, 2003
REASONS FOR JUDGMENT:

APPEARANCES:
	Counsel for the Appellant:	Randell J. Earle
	Counsel for the Respondent:	Cecil Woon and Susan McKinney
	Counsel for the Intervenor:	Kenneth W. Jerrett and Kevin F. Stamp
COUNSEL OF RECORD:
	For the Appellant:	O'Dea, Earle 323 Duckworth Street
		P.O. Box 5955
		St. John's, NL A1C 5X4
	For the Respondent:	Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada
	For the Intervenor:	Martin Whalen Hennebury Stamp
		Box 5910
		15 Church Hill
		St. John's, NL A1C 5X4