Date: 20020611
Docket: A-82-99
Neutral citation:2002 FCA 251
CORAM: ISAAC J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
ANTHONY MILLER
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
(Delivered from the Bench in Fredericton, NB on June 11, 2002)
SEXTON J. A.
The issue in this appeal is whether the employment held by the Appellant with Agpro
Services Inc.(Agpro) between July 29, 1996 and November 2, 1996 was not insurable employment, by reason of the fact the Appellant and Agpro were not dealing with each other at arms length within the meeting of Paragraph 5 (2) (i) of the Employment Insurance Act.
RELEVANT FACTS
The following facts alleged by the Minister were admitted by the Appellant.
[1] The Appellant was the largest shareholder in Agpro and the shareholdings were as follows:
SHAREHOLDER # SHARES
Appellant 625
Philip Miller (Appellant's Brother) 624
Carmen Miller (Appellant's Spouse) 325
Corey Miller (Appellant's Son) 600
Jacqueline Nelder 24
Hedi Miller 300
Teresa Miller 2
[2] The Appellant along with Philip Miller and Corey Miller were directors of Agpro and the contract between Appellant and Agpro was signed by the Appellant both as the employee and as the representative of Agpro.
[3] The personal phone number for the Appellant and Agpro were the same.
[4] The Appellant was the only signing authority for Agpro's bank account and all funds
deposited to Agpro's bank account were transferred to an account at the same bank in the personal name of the Appellant.
[5] The Appellant was related to Agpro within the meaning of the Income Tax Act.
[6] Other facts relied upon by the Minister in making his decision were not disproven by the
Appellant as follows:
1. Agpro operated the business from the personal residence of the Appellant
2. Rent for the use of the personal residence of the Appellant and a proportionate amount of the electrical bill was credited to the Appellant's shareholder account and not paid directly to the Appellant
3. The capital equipment used by Agpro in the operation of the business was owned personally by the Appellant
4. The payments for the lease of the capital equipment from the Appellant were credited to the Appellant's shareholder account and not directly to the Appellant.
5. The Appellant did not claim rental or lease income on his income tax return.
[7] The Tax Court Judge, after hearing the testimony and reviewing the documentary evidence said:
" I am not at all convinced that the Appellant has shown on a balance of evidence [probabilities] that, having regard to all the facts, the Minister displayed capricious or arbitrary behaviour in his decision. Since the Appellant did not show on a balance of evidence [probabilities] that his employment should not have been excepted from insurable employment pursuant to paragraph 5 (2) (i) of the Employment Insurance Act the appeal is therefore dismissed."
[8] We are of the view that there was sufficient evidence in order to support the decision of the Tax Court Judge. We are unable to conclude that there was any erroneous finding of fact or error of law on the part of the Tax Court Judge which would permit us to interfere in the result.
[9] The appeal will therefore be dismissed with costs.
"Edgar J. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-82-99
STYLE OF CAUSE: ANTHONY MILLER v. HER MAJESTY THE
QUEEN
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: June 11, 2002
REASONS FOR ORDER:
DATED: June 11, 2002
APPEARANCES:
Mr. Anthony Miller FOR THE APPLICANT
John P. Bodurtha FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Anthony Miller FOR THE APPELLANT
P. O. Box 55
Crapaud, Prince Edward Island
COA 1JO
Department of Justice FOR THE RESPONDENT
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3