Date: 20021105
Docket: A-57-02
Docket: A-58-02
Neutral citation: 2002 FCA 427
CORAM: LINDEN J.A.
BETWEEN:
CHARLES W. DOERING
Applicant
and
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Calgary, Alberta on November 5, 2002.
Judgment delivered from the Bench at Calgary, Alberta on November 5, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20021105
Docket: A-57-02
Docket: A-58-02
Neutral citation: 2002 FCA 427
CORAM: LINDEN J.A.
NOËLJ.A.
BETWEEN:
CHARLES W. DOERING
Applicant
and
HER MAJESTY THE QUEEN AS REPRESENTED BY
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Calgary, Alberta on November 5, 2002)
NOËLJ.A.
[1] This is an application for judicial review of two decisions of a Judge of the Tax Court of Canada rendered on December 4, 2001, reported as Doering v. Canada (Minister of National Revenue - M.N.R.), [2001] T.C.J. No. 888 (QL). The Tax Court Judge upheld the decision of the Minister of National Revenue that, during the period January 29, 1998 to February 7, 2000, Mr. Doering (the applicant) was engaged in a contract for services, not a contract of service, with Bulk Systems (Alberta) Ltd. (the payor). The consequence of that decision was that, during that period, the applicant did not have insurable employment within the meaning of s. 5(1)(a) of the Employment Insurance Act, S.C. 1996, c. 23 or pensionable employment within the meaning of paragraph 6(1)(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] The applicant gave evidence in the Tax Court that the payor would not permit him to obtain his own insurance for his truck, as the contract provided. He also gave evidence that in the particular circumstances, this resulted in his being unable to use his truck as an owner. Despite that evidence, the Tax Court Judge found that the payor did not exercise such a degree of control that would cause the relationship to be one of employment.
[3] Counsel for the respondent defends the Tax Court Judge's conclusion on this point on the basis that the applicant did not give evidence as to whether or how he attempted to enforce the insurance clause under the contract.
[4] However, the applicant was not cross examined on this point because the Tax Court Judge stopped the proceedings at the conclusion of the applicant's direct evidence.
[5] The issue as to whether the applicant could use his truck as an owner bears significant weight in the circumstances of this case and may well have brought the Tax Court Judge to a different conclusion if the evidence had not been truncated.
[6] The applications will therefore be allowed with costs in favour of the applicant, and the matters remitted to a different Tax Court Judge.
"M. NOËL"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-57-02 & A-58-02
STYLE OF CAUSE: CHARLES W. DOERING v. THE QUEEN
PLACE OF HEARING: Calgary, AB
DATE OF HEARING: November 5, 2002
REASONS FOR JUDGMENT
Delivered from the Bench: NOËL, J.A.
DATED: November 5, 2002
APPEARANCES:
Mr. Charles W. Doering, Litigant in Person FOR THE APPLICANT
Calgary, AB
Ms. Gwen Mah FOR THE RESPONDENT
Edmonton, AB
SOLICITORS OF RECORD:
Mr. Charles W. Doering, Litigant in Person FOR THE APPLICANT
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada