Date: 20020415
Docket: A-216-98
Neutral Citation: 2002 FCA 137
ROTHSTEIN, J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Applicant
- and -
TIGNEY TECHNOLOGY INCORPORATED
Respondent
Heard at Edmonton, Alberta, on April 15th, 2002.
Judgment delivered from the Bench at Edmonton, Alberta, on April 15th, 2002.
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.
CONCURRED IN BY: STRAYER, J.A.
NADON, J.A.
Date: 20020415
Docket: A-216-98
Neutral Citation: 2002 FCA 137
ROTHSTEIN, J.A.
NADON, J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Applicant
- and -
TIGNEY TECHNOLOGY INCORPORATED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta,
on April 15th, 2002).
[1] This is an application for judicial review by the Minister of National Revenue from a decision of the Tax Court under the Unemployment Insurance Act. The sole issue is whether the Tax Court Judge erred in concluding that the employment in question was insurable employment. Under paragraph 3(2)(c)(ii) of the Act, whether or not an employment relationship is deemed to be at arm's length requires the Minister to have regard to all considerations of the employment including specified considerations.
[2] The Tax Court Judge found that the Minister did not consider the importance of the work performed, the skill of the workers and funding problems of the employer. On this basis he concluded that the Minister did not have regard to relevant considerations and that therefore the Minister's discretion was not exercised according to law.
[3] On this application for judicial review, the Minister says that he did take into account the matters referred to by the Tax Court Judge. However, what the Minister is asking this Court to do is to overturn findings of fact by the Tax Court Judge. The standard for doing so is very high. The error must be palpable and overriding. While we might have come to a different factual conclusion than the Tax Court Judge, on the material before us, we are not prepared to say that he made a palpable and overriding error of fact in deciding that the Minister did not take into account considerations that were relevant.
[4] The Tax Court Judge then went on to consider the evidence before him and concluded that had the parties been at arm's length it is reasonable to conclude that they would have entered into substantially similar contracts of employment. There was evidence on the record to support this finding. Absent, palpable and overriding error which we cannot find here, there is no basis for this Court to interfere with these factual conclusions.
[5] The judicial review will be dismissed.
[6] These Reasons apply to Court files A-217-98, A-218-98, A-219-98, A-220-98, and
A-221-98, and a copy of same will be placed on all these files.
"Marshall E. Rothstein"
J.A.
EDMONTON, Alberta
April 15th, 2002.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-216-98
STYLE OF CAUSE: Minister of National Revenue v.
Tigney Technology Incorporated
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 15, 2002
REASONS FOR JUDGMENT: ROTHSTEIN, J.A.
CONCURRED IN BY: STRAYER, J.A.
NADON, J.A.
DATED: April 15, 2002
APPEARANCES:
Ms. Bonnie Moon FOR THE APPLICANT
No One FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris A. Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
No One FOR THE RESPONDENT