EMPLOYMENT INSURANCE |
M.N.R. v. Mastech Quantum Inc.
A-692-00, A-693-00
2002 FCA 131, Richard C.J. and Malone J.A.
4/4/02
18 pp.
Judicial review of Tax Court's order allowing appeal from determination by Minister of National Revenue that worker (Wallace) engaged in insurable, pensionable employment under Employment Insurance Regulations, s. 6(g) and Canada Pension Plan Regulations, s. 34(1)--S. 6(g) including employment of person placed in that employment by employment agency to perform services for client of agency "where that person is remunerated by the agency for the performance of those services" in insurable employment-- S. 34 providing where individual placed by employment agency in employment with client of agency, and terms or conditions of employment and remuneration constitute contract of service, employment included in pensionable employment and agency or client, whichever pays remuneration to individual, shall, for purposes of deducting and remitting contributions payable by and in respect of individual under Act, Regulations, be deemed to be employer of individual--Wallace placed in employment at Dofasco by Silverside Computer Systems Inc., employment agency-- Mastech Quantum Inc. successor to Silverside--Dofasco paid Silverside for Wallace's services--Silverside remitted payment to parent company, Quantum Information Resources Ltd., which issued cheque to Wallace--Cheques bore notation "Silverside Computer System(s) Inc."--Minister determining Silverside required to pay EI premiums, CPP contributions in respect of Wallace's employment at Dofasco--Whether Tax Court erred in concluding Wallace not remunerated by Silverside, and therefore not in insurable, pensionable employment--Application allowed--Per Richard C.J. (Evans J.A. concurring): Evidence before Tax Court Quantum paid Wallace at Silverside's request and on Silverside's behalf for discharge of Silverside's obligations to Wallace under contract for services--Silverside, not Quantum, obliged to remunerate Wallace for services--Contract between Silverside, Wallace --No contract between Quantum, Wallace--Quantum merely provided payroll service--Not remunerating Wallace for performance of services--Tax Court erred in construing, applying EI, CPP Regulations--Wallace remunerated by agency for performance of service under direction, control of client of agency--Per Malone J.A. (concurring in result): Tax Court applied maxim expressio unius est exclusio alterius (to express one thing is to exclude another)--Held because Employment Act, s. 5(1) referring to earnings received from employer "or some other person", wording of ss. 6(g), 34(1) implying Parliament intended to exclude payment of remuneration by anyone other than employment agency; since neither Silverside nor Dofasco remunerated Wallace, Wallace not employed in pensionable or insurable employment-- Preliminary issues--(1) Respondent submitting improper case for judicial review as whether Wallace's remuneration paid by employment agency question of fact or of mixed fact and law, rather than error of law as contemplated by Federal Court Act, s. 18.1(4)--Tax Court required to interpret ss. 6(g), 34(1)-- General rule construction of any statutory provision question of law--No basis for first objection--(2) Respondent also submitting inappropriate to seek judicial review when central issue not properly raised before Court i.e. Minister neither pleaded "agency/conduit" issue nor material facts necessary to support such findings--Managing director of Silverside acknowledged at trial Quantum paid Wallace at Silverside's request, on Silverside's behalf--Where sufficient relevant evidence part of record, and where opposing party suffering no plausible prejudice, error for Court to refuse to consider agency argument, even though agency not expressly pleaded --Second objection rejected--Tax Court erred in law in not finding Silverside, Quantum created principal/agent relationship between themselves--Quantum affected Silverside's legal position by discharging Silverside's legal liabilities to pay Wallace for services, which resulted in agency agreement that can be implied from conduct of both Quantum, Silverside--Using liberal interpretation, ss. 6(g), 34 sufficiently encompassing to include indirect payments by Silverside's agent--Tax Court also erred in applying maxim expressio unius est exclusio alterius--If result of accepting implied exclusion argument defeating legislative purpose, or disrupting apparent scheme, or otherwise leading to inappropriate results, maxim readily dismissed: Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994--By applying maxim, Tax Court erroneously failed to consider applicability of agency law to Regulations, using encompassing interpretation necessary to ensure broad policy objectives obtained, i.e. to provide social insurance benefits for Canadians--Employment Insurance Regulations, SOR/96-332, s. 6(g)--Canada Pension Plan Regulations, C.R.C., c. 385, s. 34(1)--Employment Insurance Act, S.C. 1996, c. 23, s. 5(1)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5).