BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE,
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on February 25, 2005, at Montreal, Quebec
Before: The Honourable S.J. Savoie, Deputy Judge
Appearances:
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____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Grand-Barachois, New Brunswick, on this 5th day of May 2005.
Translation certified true
on this 1st day of March, 2006.
Garth McLeod, Translator
BETWEEN:
TEBESSI LOTFI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] This appeal was heard at Montreal, Quebec on February 25, 2005.
[2] The appeal is against the insurability of the employment of the Appellant while in the service of 9133-3393 Québec Inc., the Payor, from November 1 to December 23, 2003.
[3] In a letter dated June 8, 2004, the Minister of National Revenue (the "Minister") informed the Appellant of his decision that he did not hold insurable employment during the period at issue.
[4] The Minister based his decision on the following assumptions of fact:
(a) the Payor operated a pizzeria; (admitted)
(b) Huseyin Ay was the sole shareholder of the Payor; (admitted)
(c) the Payor had 7 inside tables and generally hired 5 people; (to be completed)
(d) during the period at issue, the worker performed services for the Payor as a pizza delivery man; (admitted)
(e) the worker claims that he performed services for the Payor for two months whereas, in fact, the Appellant worked only for two or three days; (denied)
(f) the worker was paid $6 an hour; (admitted)
(g) the worker had to provide his own vehicle to make the Payor's deliveries; (admitted)
(h) the Appellant had to assume all expenses related to the use of his vehicle in the context of his work; (admitted)
(i) the Appellant was not entitled to vacation pay and was not paid in the event of illness; (admitted)
[5] The Appellant maintained that he worked for the Payor from November 1 to December 23, 2003 in the kitchen, as a server and as a delivery man. In his testimony at the hearing, he stated that he worked six days a week, sometimes until 8 pm or 10 pm. He further stated that the Payor paid him in cash, never by cheque. According to him, he was paid $6 an hour and also received tips.
[6] Claude Gilbert, the insurability officer, testified at the hearing and his report was produced as Exhibit I-2. His testimony and his report set out his reasons why the employment of the Appellant was not insurable. It was established by this testimony and this report that the Payor was unable to identify the Appellant's days of work, but nonetheless specified that he had worked only a few days making deliveries and that he had been dismissed because his performance was unsatisfactory.
[7] During his investigation, the insurability officer learned from the Appellant that the business employed the owner, whose first name he did not know, a certain Mr. Huseyin, a cook, a server and two deliverymen. According to the Appellant, all the employees were paid in cash. The Appellant made deliveries and for this work he used his own vehicle and assumed all the expenses thereof. The Appellant reported to the insurability officer that he had insisted that the Payor take off all the deductions from his salary, but without success; this led him to leave his job and file a complaint with Réal Barbeau of Special Investigations. No one from Special Investigations followed up the complaint, however.
[8] The insurability officer interviewed Huseyin Ay on February 9, 2004. He learned from him that Huseyin Ay was the sole shareholder of the Payor. Huseyin Ay further stated that he had not operated the restaurant for several months. He added that he looked after the kitchen and served customers by himself. He needed only one employee, a deliveryman. He confirmed that the Appellant had worked for him, but only for two or three days in November or December 2003. He further specified that when the boss gave him an order to deliver, he would sometimes refuse to do so because he thought the distance was too great. The Appellant was also accused of being away from the job five times a day in order to pray and of bothering the customers with his religious propaganda. It was at that point that he allegedly dismissed the Appellant, telling him to go because he needed someone who wanted to work. He confirmed that he had paid the Appellant in cash, but had no recollection of the amounts paid or of his days of work, although he stated that, in his recollection, the Appellant had not worked more than two or three days.
[9] The insurability officer stated in his report, produced at the hearing as Exhibit I-2, that his agency had been unable to establish the existence of genuine employment because the Appellant had stated to them that he had worked for almost two months and that he had been paid in cash, whereas the owner of the business stated that he had worked for only two or three days. The Appellant, furthermore, had been unable to produce any evidence that he had worked and what the duration of his employment had been.
[10] In his testimony, the Appellant stated that he had worked for two months for the Payor, for 50 hours a week at an hourly rate of $6, and that his tips had brought in an additional $4, making a total salary of $10 an hour. The Appellant accordingly estimated his total income for the period at $4,000, which represents 200 hours at $10 an hour. However, neither the Appellant nor the Payor provided any evidence in support of this statement.
[11] The Appellant admitted, at paragraph 5(d) of the Reply to the Notice of Appeal, that the Appellant had provided services to the Payor as a pizza delivery man. This fact was confirmed to the insurability officer by the owner of the Payor, Huseyin Ay, although he denied that the Appellant had worked more than two or three days.
[12] In his tax return for 2003, the Appellant reported gross income of $9,334.86. These earnings were paid to him from five different sources, namely:
1. Club de lutte Inter-Concordia: $885.60;
2. Gestion de personnel de manufacture (G.P.M.) Inc.: $3,087.00;
3. Boucherie & épicerie La Casban enr.: $1,976.00;
4. Gestion Ali Younes: $757.31;
5. Income from self-employment: $2,628.95.
[13] It should be noted that nothing in his income tax return corroborates his employment with the Payor or the salary he derived from it.
[14] The evidence revealed that the employment of the Appellant lasted only a few days, two or three, according to the information provided by the Payor. The short duration of this employment has the effect of excluding it from insurable employment in accordance with subparagraph 8(1)(a)(ii) of the Employment Insurance Regulations, which I will reproduce below:
8.(1) Subject to subsections (2) to (4), the following employments are excluded from insurable employment:
(a) employment of a person by an employer, other than as an entertainer, in connection with a circus, fair, parade, carnival, exposition, exhibition or other similar activity if the person:
[...]
(ii) is employed by that employer in that employment for less than 7 days in a year.
[...]
[15] This Court must accordingly conclude that the employment of the Appellant was excluded from insurable employment. However, in the opinion of the Minister, the employment of the Appellant was not insurable because he was providing services to the Payor under a contract for services and not under a contract of service. This Court is of the opinion that the circumstances in the instant case support this finding by the Minister, since an examination of the facts in light of the criteria established in Wiebe Door Services Limited v. M.N.R., [1986] 3 F.C. 553 (F.C.J.) supports this conclusion.
[16] The appeal is consequently dismissed and the decision of the Minister is confirmed for the reasons set out above.
Signed at Grand-Barachois, New Brunswick, this 5th day of May, 2005.
"S.J. Savoie"
Deputy Judge Savoie
Translation certified true
on this 1st day of March, 2006.
Garth McLeod, Translator
STYLE OF CAUSE: Tebessi Lotfi and M.N.R.
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 25, 2005
REASONS FOR JUDGMENT: The Honourable Deputy Judge S.J. Savoie
APPEARANCES:
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For the Appellant: |
The Appellant himself
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Counsel for the Respondent: |
Marie-Claude Landry |
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario