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Docket: 2002-1823(EI) |
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BETWEEN: |
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LINDSAY ROUNDPOINT, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
____________________________________________________________________
Appeal heard on March 12, 2003, at Ottawa, Ontario.
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Before: The Honourable Judge Lucie Lamarre |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Ronald MacPhee |
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JUDGMENT
The appeal pursuant to subsection 103(1) of the Employment Insurance Act is dismissed and the decision of the Minister on the appeal made to him under section 91 of the Act is confirmed.
Signed at Ottawa, Canada, this 17th day of March 2003.
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"Lucie Lamarre" |
J.T.C.C.
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Citation:2003TCC131 |
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Date: 20030317 |
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Docket: 2002-1823(EI) |
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BETWEEN: |
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LINDSAY ROUNDPOINT, |
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Appellant, |
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and |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
REASONS FOR JUDGMENT
Lamarre, J.T.C.C.
[1] The appeal from the decision by the Minister of National Revenue ("Minister") that the appellant was not employed in insurable employment while working for Bruce Roundpoint o/a Roundpoint Construction during the period from March 1 to October 12, 2001 because they were not dealing with each other at arm's length within the meaning of paragraph 5(2)(i) of the Employment Insurance Act ("Act"), is dismissed.
[2] The appellant has not convinced me that the Minister (i) acted in bad faith or for an improper purpose or motive, (ii) failed to take into account all the relevant circumstances, or (iii) took into account irrelevant factors in making his decision. (See Canada v. Jencan Ltd., [1998] 1 F.C. 187; [1997] F.C.J. 876, paragraph 37.)
[3] The appellant admitted the following assumptions of fact relied upon by the Minister in his Reply to the Notice of Appeal ("Reply") and set out in paragraph 6 thereof:
(a) the Payer is involved in the construction area (heavy equipment);
(b) Bruce Roundpoint is the sole owner of the business;
(c) the Appellant is related to the Payer as being the Payer's daughter;
(d) the Appellant was hired as "Receptionist" under a verbal agreement;
(e) the Appellant was responsible for filing, data entry, errands and banking;
(f) the Appellant was paid $20.00 per hour;
(g) the Appellant was paid cash, on a weekly basis;
(h) the Payer determined the Appellant's rate of pay;
(i) the Appellant was expected to work 40 hours per week;
(j) unlike the unrelated workers, the Appellant did not have to follow a fixed schedule of work;
(k) unlike the unrelated workers, the Appellant did not record her hours of work on a time card;
(l) all the equipment and the office were provided by the Payer;
. . .
(n) unlike the unrelated workers, the Appellant did not have to advise the Payer when late for work;
(o) the Appellant worked for the Payer on a part time basis before the period in question;
(p) the Appellant is related to the Payer within the meaning of the Income Tax Act;
[4] The appellant did not admit one assumption of fact stated in paragraph 6 of the Reply, namely the following:
(m) unlike the unrelated workers, the Appellant was provided with a Payer's car.
[5] The appellant took issue with the assumption stated in paragraph 6(q) of the Reply, namely the following:
(q) the Appellant is not dealing with the Payer at arm's length.
[6] Although one assumption of fact was denied, all the remaining facts admitted by the appellant are sufficient in law to support the Minister's decision that the parties would not have entered into a substantially similar contract of service if they had been dealing with each other at arm's length. In such a case, this Court is not at liberty to overrule the Minister merely because one or more of the Minister's assumptions are disproved at trial, even though this Court might have come to a different conclusion. As was said in Jencan Ltd., supra, at paragraph 50:
. . . In other words, it is only where the Minister's determination lacks a reasonable evidentiary foundation that the Tax Court's intervention is warranted.
[7] For this reason the appeal is dismissed and the decision of the Minister is confirmed.
Signed at Ottawa, Canada, this 17th day of March 2003.
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"Lucie Lamarre" |
J.T.C.C.
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CITATION: |
2003TCC131 |
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COURT FILE NO.: |
2002-1823(EI) |
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STYLE OF CAUSE: |
Lindsay Roundpoint v. M.N.R. |
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PLACE OF HEARING: |
Ottawa, Ontario |
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DATE OF HEARING: |
March 12, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge Lucie Lamarre |
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DATE OF JUDGMENT: |
March 17, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Ronald MacPhee |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |