Date: 20000412
Dockets: 1999-3253-EI; 1999-3251-EI
BETWEEN:
GILLES GINGRAS, LES BRAS DE FER GINGRAS INC.,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1] These are two appeals concerning the work performed by the appellant Gilles Gingras for Les Bras de Fer Gingras Inc., the other appellant.
[2] It was agreed to proceed on common evidence.
[3] The determination in these cases resulted from an exercise of the respondent's discretion under paragraph 5(2)(i) of the Employment Insurance Act (the "Act") and sections 251 and 252 of the Income Tax Act.
[4] The facts assumed in support of the determination were the following:
[TRANSLATION]
(a) The payer was incorporated in or about 1990.
(b) The shareholders of the payer were:
Mario Gingras 30% appellant's nephew
Serge Gingras 50% appellant's brother
Daniel Gingras 15% appellant's nephew
Appolinaire Gingras 5% appellant's brother.
(c) The payer operated a manufacturing concern that produced specialized equipment for trucks.
(d) The payer operated its business throughout the year.
(e) The appellant was a driver for the payer.
(f) Before the period at issue, the appellant's work was performed by a subcontractor, 2332-4221 Québec Inc.
(g) The appellant was the sole shareholder and only employee of 2332-4221 Québec Inc.
(h) The appellant had flexible hours of work.
(i) The payer could send the appellant home when there was no work, but the appellant was paid anyway.
(j) The appellant was paid $416.00 per week, by direct deposit, regardless of the number of hours he worked.
(k) The other workers who performed the same work for the payer were paid $13.00 per hour, in the case of Mike Gingras, and $25.00 per hour, in the case of Mario Gingras.
(l) The appellant received lower wages than the other workers because, unlike the appellant, the other workers were paid only for the hours they worked.
(m) Unlike the other workers, the appellant did not punch a time clock.
(n) The appellant provided unpaid services to the payer outside the period at issue.
(o) The appellant used the payer's credit card for his own purposes.
[5] The appellants admitted all the facts, with the exception of those alleged in subparagraphs n) and o), which they denied. Those facts were key factors supporting the determination.
[6] The appellants also provided particulars regarding some of the other allegations and qualified those allegations. The appellants pointed out that the appellant Gingras's working conditions were special and, in fact, unique for the very good and simple reason that this was the only position having the features described.
[7] The appellant Gilles Gingras's job was to go and get the trucks and bring them in so that they could be worked on and various improvements made; he subsequently returned the vehicles that had undergone the various modifications.
[8] The time required for picking up each truck varied significantly. The appellant often had to wait for several hours before he could leave with the truck, which is why the employer had agreed on a set weekly wage in order to avoid having to pay for the time the appellant had to spend waiting for a truck.
[9] The weight of the evidence shows that the respondent drew hasty and arbitrary inferences from some of the facts; he also interpreted some facts in a way that did not reflect reality, even though he had all the information needed at hand.
[10] Indeed, nothing in the evidence warranted the assertion that the appellant had used the payer's credit card for his own purposes. Moreover, the appellant Gilles Gingras and his agent provided particulars, qualifications and explanations refuting the allegation that unpaid services had been rendered by Mr. Gingras.
[11] The weight of the evidence shows that the respondent did not judiciously exercise his discretion which requires that he analyse all of the facts that should have been taken into consideration in determining whether or not the employment was insurable.
[12] In the light of the evidence, primarily consisting of the testimony of the Gingras brothers since the respondent decided not to call any witnesses, it appears that Gilles Gingras did not profit or benefit from any advantages or disadvantages in performing the work that he did for Les Bras de Fer Gingras Inc.
[13] The appellant performed work; he received suitable and reasonable wages reflecting the value of the work performed, which was so performed under the supervisory power of the payer company.
[14] The work performed by the appellant during the period at issue, having regard to the special terms and conditions and all the circumstances of its performance, was done pursuant to a genuine contract of service comparable or similar to that which a person dealing at arm's length with the payer would have had.
[15] For these reasons, the appeals are allowed in that the work performed by the appellant Gilles Gingras for Les Bras de Fer Gingras Inc., the other appellant, between March 30 and September 25, 1998, was done under a genuine contract of service giving rise to insurable employment within the meaning of the Act.
Signed at Ottawa, Canada, this 12th day of April 2000.
"Alain Tardif"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 31st day of October 2000.
Erich Klein, Revisor