Date: 20010910
Docket: 2000-4970-EI
BETWEEN:
ROBERT BORDELEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor Judgment
Somers, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on July 10, 2001.
[2] By letter dated October 26, 2000, the Minister of National Revenue ("the Minister") informed the appellant of his decision that the appellant had not provided services to the payer, TMG Solution Retail Performance Group, Division de Mosaic Group Inc., and had not held employment during the period from November 29 to December 31, 1999. The Minister also informed the appellant that the $3,070 he had received from the payer was a retiring allowance and hence excluded from insurable earnings.
[3] Subsection 5(1) of the Employment Insurance Act reads in part as follows:
5.(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service . . .
[4] Subsection 10(1) of the Employment Insurance Regulations reads as follows:
PART I
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment - Methods of Determination
10.(1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment.
[5] The burden of proof is on the appellant. He has to show on a balance of evidence that the Minister's decision is unfounded in fact and in law. Each case stands on its own merits.
[6] In making his decision, the Minister relied on the following facts, which were either admitted or denied:
[TRANSLATION]
(a) the payer is a marketing company; (admitted)
(b) the payer had a contract with the Clearnet cellular telephone company to set up promotional booths at Carrefour de l'Estrie in Sherbrooke; (admitted)
(c) the appellant was hired by the payer to manage four booths; (denied)
(d) the appellant signed an agreement with the payer for the period from October 28, 1999, to January 15, 2000; (admitted)
(e) on November 26, 1999, the payer notified the appellant that his employment was terminated as of that date; (denied)
(f) the appellant did not provide services to the payer after November 26, 1999; (denied)
(g) the appellant brought an action for $3,070 against the payer for unpaid wages; (denied)
(h) on June 9, 2000, the Court of Quebec, Civil Division, Small Claims Division, ordered the payer to pay the appellant $3,000 plus $70 in costs; (denied)
(i) on July 6, 2000, the payer paid the appellant $2,166.16 after making deductions for taxes and contributions to social programs. (admitted)
[7] The payer is a marketing company. It had a contract with the Clearnet cellular telephone company to set up promotional booths at Carrefour de l'Estrie in Sherbrooke.
[8] According to the appellant, the payer hired him to manage a booth. The term of the contract was from October 28, 1999, to January 15, 2000.
[9] The appellant filed a letter from the payer dated November 26, 1999 (Exhibit A-1, Tab 1) informing him that his employment was being terminated that same day. The appellant admitted that he did not provide services to the payer after November 26, 1999.
[10] The Court notes that the Small Claims Division of the Court of Quebec issued a default judgment ordering the payer to pay the appellant $3,000 plus $70 in costs (Exhibit A-1, Tab 9). On July 6, 2000, the payer paid the appellant $2,166.16 after making deductions for taxes and contributions to social programs.
[11] The issue is whether the appellant held insurable employment from November 29 to December 31, 1999.
[12] The evidence showed that the appellant did not work for the payer after receiving his letter of discharge on November 26, 1999. It is true that the Small Claims Division of the Court of Quebec, through a default judgment, ordered the payer to pay the appellant $3,000 in compensation. Pursuant to that judgment, the appellant received $2,166.16 from the payer after deductions for taxes and contributions to social programs; however, the deciding factor is that the appellant did not work during the period at issue.
[13] Parliament has specified what constitutes insurable earnings. Subsection 10.1(1) of the Employment Insurance Regulations reads as follows:
PART I
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment - Methods of Determination
. . .
10.1 (1) Where an insured person is remunerated by the employer for a period of paid leave, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked and for which the person would normally have been remunerated during that period.
[14] Paragraph 1(1)(b) of the Insurable Earnings and Collection of Premiums Regulations provides as follows:
1. (1) The definitions in this subsection apply in these Regulations.
. . .
« retiring allowance » means an amount received by a person
. . .
(b) in respect of a loss of an office or employment of the person, whether or not received as, on account or in lieu of payment of, damages or pursuant to an order or judgment of a competent tribunal.
[15] Subsection 2(3) of the said Regulations reads in part as follows:
Earnings from Insurable Employment
2. . . .
(3) For the purposes of subsections (1) and (2), "earnings" does not include
. . .
(b) a retiring allowance.
[16] Parliament has clearly specified that a worker's employment is not insurable if that worker has received a retiring allowance.
[17] Parliament has made it clear that employment is insurable for the hours actually worked and not for what is received as a retiring allowance.
[18] The $3,070 received by the appellant was a retiring allowance within the meaning of the Insurable Earnings and Collection of Premiums Regulations and is not included in insurable earnings under subsection 2(3) of those Regulations.
[19] The appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 10th day of September 2001.
"J. F. Somers"
D.J.T.C.C.
Translation certified true on this 31st day of May 2002.
[OFFICIAL ENGLISH TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-4970(EI)
BETWEEN:
ROBERT BORDELEAU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on July 10, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge J. F. Somers
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Diane Lemery
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 10th day of September 2001.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 31st day of May 2002.
Erich Klein, Revisor