Date: 20050505
Dockets: A‑192‑04
A‑193‑04
Citation: 2005 FCA 165
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
A‑192‑04
FRANCINE PROVOST
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
________________________
A‑193‑04
TIBÉRIO MASSIGNANI
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
Hearing held at Montréal, Quebec, on May 5, 2005.
Judgment delivered from the bench at Montréal, Quebec, on May 5, 2005.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20050505
Dockets: A‑192‑04
A‑193‑04
Citation: 2005 FCA 165
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
A‑192‑04
FRANCINE PROVOST
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
________________________
A‑193‑04
TIBÉRIO MASSIGNANI
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on May 5, 2005)
LÉTOURNEAU J.A.
[1] These are two appeals from a decision of the Tax Court of Canada. At the conclusion of his decision, the trial judge said that in his opinion the job performed by the two appellant parties was not an insurable employment owing to the non‑arm’s length relationship that existed between them and the company Les Confections Tiva Inc. (Tiva) that hired them.
[2] Tiva had established a scheme by which the employees worked the minimum number of weeks required to qualify for unemployment‑insurance benefits. However, these workers had to continue performing services for Tiva, at a reduced wage, during their periods of unemployment.
[3] The judge found that there was a genuine contract of employment between the appellant parties and Tiva. The lawfulness of this determination was not disputed before us. We are obliged to accept it, therefore.
[4] From there, we arrive at his conclusion that the appellant parties accepted conditions of employment that other workers would not have accepted and that this acceptance is explained by the non‑arm’s length relationship they maintained with Tiva. But according to the evidence, the appellant parties participated in the scheme and performed their employment under the same conditions as the other employees who themselves were at arm’s length from Tiva. It is therefore incorrect to conclude that they enjoyed an advantage in comparison with the other employees because of their non‑arm’s length relationship and that by that token their employment was not insurable. Needless to say, this result, at which we are obliged to arrive, in no way prejudges the issue of the eligibility of the appellant parties for unemployment benefits.
[5] For these reasons, the appeals will be allowed, the decision of the Tax Court of Canada judge will be set aside and the two cases will be sent back to the Chief Judge of the Tax Court of Canada or the judge he designates for redetermination on the basis that the two appellant parties held an insurable employment for the periods in dispute. The appellant parties will be entitled to the disbursements in each of the two dockets, but to only one set of costs.
“Gilles Létourneau”
J.A.
Certified true translation
Kelley Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A‑192‑04
STYLE: FRANCINE PROVOST v. THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 5, 2005
REASONS FOR JUDGMENT
OF THE COURT: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER
DELIVERED FROM THE
BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Pierre Lupien FOR THE APPELLANT
Anne Poirier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Montréal, Quebec FOR THE APPELLANT
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A‑193‑04
STYLE: TIBÉRIO MASSIGNANI v. THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 5, 2005
REASONS FOR JUDGMENT
OF THE COURT: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER
DELIVERED FROM THE
BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Pierre Lupien FOR THE APPELLANT
Anne Poirier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Montréal, Quebec FOR THE APPELLANT
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec