UNEMPLOYMENT INSURANCE |
Théberge v. M.N.R.
A-91-00, A-92-00
2002 FCA 123, Décary, and Noël (dissenting) JJ.A.
28/3/02
14 pp.
Application for judicial review of two decisions of Tax Court of Canada Judge dismissing applicants' appeals and upholding decision of Minister that applicants' employment on father's farm excepted from insurable employment under rules concerning related persons in Unemployment Insurance Act, s. 3(2)(c), and in Employment Insurance Act, s. 5(2)(i), (3)--Applications allowed--Décary J.A. (Noël J.A. dissenting): Tax Court Judge erred by failing to consider both Minister's allegations and criteria referred to in s. 3(2)(c): remuneration paid, terms and conditions, duration and nature and importance of work performed--Also erred by considering almost exclusively duration, nature and importance of work performed outside of periods of employment at issue--In cases of family businesses engaged in seasonal work, minimal amount of work remaining to be done outside active season usually performed by family members, without pay--Excepting seasonal employment, in family farm business, on ground cows milked year-round amounts to depriving family members who qualify by working during active season of unemployment insurance and to overlooking two main characteristics of such a business: family business and seasonal business--Claimant not required to remain completely inactive while receiving benefits--Judge erred by taking into account unpaid work in absence of any indication insurable employment at issue was subject to special terms and conditions attributable to services being rendered outside period of employment--Judge's conclusion employment must be excepted because parties not dealing with each other at arm's length not standing up to analysis-- Noël J.A. (dissenting): Tax Court Judge correct in concluding Mr. Théberge and his two sons would not have entered into contract of employment that was "substantially similar" to those in question here "if they had been dealing with each other at arm's length" under Unemployment Insurance Act, s. 3(2)(c)--Tax Court Judge had to conclude purpose of contract of employment being pursued outside earnings period since milking cows, which had to be done twice a day year-round, was integral part of applicants' paid work--If Parliament had intended to exclude farm businesses or certain of their operations from s. 3(2)(c), it would have provided exception to that effect--Absent such exception, Act must be applied to everyone in same way--Applications dismissed--Unemploy-ment Insurance Act, R.S.C., 1985, c. U-1, s. 3--Employment Insurance Act, S.C., 1996, c. 23, s. 5.