CUB 35987
TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by Alfredo D'ASTOLI
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IN THE MATTER of an appeal to the Umpire by the Claimant
from three decisions of a Board of Referees given at Montreal, Quebec
on January 27, 1994.
CORRESPONDING FEDERAL COURT DECISION: A-1000-96
DECISION
NOËL, J.:
The claimant is appealing three decisions of the Board of Referees confirming that he was not eligible to receive benefits because at the relevant time, he was operating a business on his own account or in a co-adventure, and was thereby deemed not to be unemployed.
The facts underlining these three appeals are identical, apart from the benefit periods in question. The claimant filed three benefit claims on December 20, 1989, January 14, 1991 and March 16, 1992 respectively. These claims were initially allowed, but were later refused on November 15, 1993. The facts that resulted in these refusals are as follows.
In the course of its investigation, the Commission learned that the claimant held a 25% interest in the company Tuiles, Terrazzo, Marbre A. D'Astoli Inc. For some years, the claimant has been the company's only director, and he works twelve months a year to run the business successfully. The company's sales leave no doubt that it is operated continually and involves a high level of activity.
In the light of these facts, the Commission found that the claimant was operating a business on his own account at the relevant moment, and was thereby deemed to be working a full work week under section 43(1)(a) of the Unemployment Insurance Regulations. A decision to this effect was issued on November 15, 1993 in respect of the three benefit claims made by the claimant.
The claimant appealed these three decisions before the Board of Referees. In support of his appeal, the claimant produced a decision of the Appeals Division of Revenue Canada, which was rendered on July 22, 1993 and which reads as follows:
"This letter concerns the application for a decision that you submitted regarding the insurability, for the purposes of unemployment insurance, of your employment with Tuiles, Terrazzo, Marbre A. D'Astoli Inc. from February 14, 1989 to December 22, 1989, from January 15, 1990 to December 7, 1990 and from March 25, 1991 to March 13, 1992.
It has been determined that this employment was insurable for the following reason: There was an employer-employee relationship between you and Tuiles, Terrazzo, Marbre A. D'Astoli Inc.
If you disagree with this decision, you may appeal it to the Tax Court of Canada within 90 days from the date on which this letter was sent. The attached formula, entitled "Appeals to the Tax Court of Canada", provides more information on this subject.
The decision in this letter has been rendered pursuant to paragraph 61(3)(a) of the Unemployment Insurance Act, and is based on paragraph 3(1)(a) of the Act.
Very truly yours,
For the Minister of National Revenue."
The claimant argued before the Board of Referees that this decision was decisive in regard to the fact that he held insurable employment for each of the periods covered by the decision. He added that when this insurable employment ended, the Commission could not claim that this occupation did not exist because the claimant was operating his own business. According to the claimant, the Minister's decision was binding on the Commission, so that the Commission could not refuse his benefit claim on the ground that he did not hold insurable employment.
For its part, the Commission argued that the Minister's decision concerned the insurability of the employment, while what was at issue in the case was entitlement to benefits. The Commission concluded that it was in no way bound by the decision of the Minister.
The Board of Referees, without giving any precise reasons for its decision, dismissed the claimant's appeal and confirmed the three decisions of the Commission. The claimant is appealing these decisions to the Umpire.
As he did before the Board of Referees, the claimant is relying upon the decision of the Minister of National Revenue rendered on July 22, 1993 under section 61(3)(a) of the Act. He adds that the Federal Court of Appeal, in Attorney General of Canada and Louis Venditelli (A-800-81) (June 1, 1982), already considered and ruled on the question raised by the Minister's decision in the context of this appeal. In Venditelli, Urie J. expressed the following in the name of the Court:
"In accordance with subsection 75(3) of the Unemployment Insurance Act, the Unemployment Insurance Commission has asked the Minister of National Revenue to rule on the question as to whether the respondent held insurable employment. Counsel for the applicant has admitted that the decision was that that was the case. The settlement of this question implicitly contained the conclusion that the respondent "was employed", which means that he was an "employee". Consequently, it could not be found that he was operating a business on his own account."
I cannot find any distinctive facts in the case at bar. Contrary to what was suggested by counsel for the Commission at the beginning of the hearing, the distinction between insurability and entitlement was clearly raised before the Umpire in Venditelli. It was thus with this distinction in mind that the Court of Appeal rendered its decision. As was the case here, the employment status of the claimant was determined by the Minister pursuant to section 61(3)(a) of the Act. This decision was not appealed. It was therefore final. According to the Court of Appeal, this decision of the Minister implicitly carries the conclusion that the claimant held, at the relevant time, an employment, and this excludes the possibility that he was at the same time a self-employed contractor. I realize that this reasoning is likely to give rise to administrative difficulties, 1 and I can only conclude that these difficulties were overlooked by the Court of Appeal. Since I am bound by the decision of the Court of Appeal, I must find that the Commission and hence the Board of Referees, was not at liberty to conclude that the claimant was a self-employed contractor at the relevant time.
The appeal is therefore allowed in each of the three cases.
MARC NOËL
UMPIRE
OTTAWA, Ontario
August 9, 1996