2530-8552 Québec Inc. c. M.R.N.

2530-8552 Québec Inc. c. M.R.N.
Court (s) Database
Tax Court of Canada Judgments
Date
2005-03-18
Neutral citation
2005 TCC 133
File numbers
2003-4433(EI)
Judges and Taxing Officers
Alain Tardif
Subjects
Employment Insurance Act
Decision Content
Docket: 2003-4433(EI)
BETWEEN:
2530-8552 QUÉBEC INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
___________________________________________________________
Appeal heard on common evidence with the appeals of
Isabelle Pépin (2003-4434(EI)), Pascal Milette (2003-4438(EI)),
Diane Delisle (2003-4441(EI)) and Micheline Fraser (2003-4442(EI))
on October 6 and 7, 2004, Trois-Rivières, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
Counsel for the Appellant:
Robert Leclerc
Counsel for the Respondent:
Julie David
_______________________________________________________________
JUDGMENT
The appeal of the company 2530-8552 Québec Inc. (2003-4433(EI)) made under subsection 103(1) of the Employment Inssurance Act, is allowed with respect to the case Diane Delisle (2003-4441(EI)); consequently, the work perfomed by the latter, during the period from November 26, 2001, to March 31, 2002, was done so under a contract of service thus constituting insurable employment; the decision rendered by the Minister of National Revenue (the "Minister") is vacated.
As for the cases Isabelle Pépin (2003-4434(EI)), Pascal Milette (2003-4438(EI)) and Micheline Fraser (2003-4442(EI)), the appeals are dismissed and the decisions rendered by the Minister are confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of March 2005.
"Alain Tardif"
Tardif J.
Translation certified true
on this 17th day of August 2005.
Daniela Possamai, Translator
Docket: 2003-4434(EI)
BETWEEN:
ISABELLE PÉPIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
_____________________________________________________________
Appeal heard on common evidence with the appeals of
2530-8552 Québec Inc. (2003-4433(EI)), Pascal Milette (2003-4438(EI)),
Diane Delisle (2003-4441(EI)) and Micheline Fraser (2003-4442(EI))
On October 6 and 7, 2004, Trois-Rivières, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
Counsel for the Appellant:
Robert Leclerc
Counsel for the Respondent:
Julie David
_______________________________________________________
JUDGMENT
The appeal made under subsection 103(1) of the Employment Insurance Act is dismissed and the decision rendered by the Minister of National Revenue is confirmed, in accordance with the attahed Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of March 2005.
"Alain Tardif"
Tardif J.
Translation certified true
on this 17th day of August 2005.
Daniela Possamai, Translator
Docket: 2003-4438(EI)
BETWEEN:
PASCAL MILETTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
_______________________________________________________________
Appeal heard on common evidence with the appeals of
2530-8552 Québec Inc. (2003-4433(EI)), Isabelle Pépin (2003-4434(EI)), Diane Delisle (2003-4441(EI)) and Micheline Fraser (2003-4442(EI))
on October 6 and 7, 2004, Trois-Rivières, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
Counsel for the Appellant:
Robert Leclerc
Counsel of Respondent:
Julie David
_______________________________________________________________
JUDGMENT
The appeal made under subsection 103(1) of the Employment Insurance Act is dismissed and the decision rendered by the Minister of National Revenue is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of March 2005.
"Alain Tardif"
Tardif J.
Translation certified true
on this 17th day of August 2005.
Daniela Possamai, Translator
Docket: 2003-4441(EI)
BETEEN:
DIANE DELISLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
_______________________________________________________________
Appeal heard on common evidence with the appeals of
2530-8552 Québec Inc. (2003-4433(EI)), Isabelle Pépin (2003-4434(EI)),
Pascal Milette (2003-4438(EI)) and Micheline Fraser (2003-4442(EI))
on October 6 and 7, 2004, at Trois-Rivières, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
Counsel for the Appellant:
Robert Leclerc
Counsel for the Respondent:
Julie David
_______________________________________________________________
JUDGMENT
The appeal made under subsection 103(1) of the Employment Insurance Act is allowed, with respect to the worked performed by the Appellant, during the period from November 26, 2001, to March 31, 2002, was done so under a contract of service thus constituting insurable employment; the decision rendered by the Minister of National Revenue is vacated, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of March 2005.
"Alain Tardif"
Tardif J.
Translation certified true
on this 17th day of August 2005.
Daniela Possamai, Translator
Docket: 2003-4442(EI)
BETWEEN:
MICHELINE FRASER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
_______________________________________________________________
Appeal heard on common evidence with the appeals of
2530-8552 Québec Inc. (2003-4433(EI)), Isabelle Pépin (2003-4434(EI)),
Pascal Milette (2003-4438(EI)) and Diane Delisle (2003-4441(EI))
on October 6 and 7, 2004, at Trois-Rivières, Quebec.
Before: The Honourable Justice Alain Tardif
Appearances:
Counsel for the Appellant:
Robert Leclerc
Counsel for the Respondent:
Julie David
_______________________________________________________________
JUDGMENT
The appeal made under subsection 103(1) of the Employment Insurance Act is dismissed and the decision rendered by the Minister of National Revenue is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18 day of March 2005.
"Alain Tardif"
Tardif J.
Translation certified true
on this 17th day of August 2005.
Daniela Possamai, Translator
Citation: 2005TCC133
Date: 20050318
Dockets: 2003-4433(EI)
2003-4434(EI)
2003-4438(EI)
2003-4441(EI)
2003-4442(EI)
BETWEEN:
2530-8552 QUÉBEC INC.,
ISABELLE PÉPIN,
PASCAL MILETTE,
DIANE DELISLE,
MICHELINE FRASER,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] These are appeals in the cases 2530-8552 Québec Inc. (2003-4433(EI)), Isabelle Pépin (2003-4434(EI)), Pascal Milette (2003-4438(EI)), Diane Delisle (2003-4441(EI)) and Micheline Fraser (2003-4442(EI)), to which the majority of the facts are common. Case 2530-8552 Québec Inc. encompasses all the others, because the appeal was introduced by the Payor, which issued all the records of employment at the beginning of the determinations involving the insurability of the employment performed by all the individual appellants.
[2] The parties agreed to present common evidence for all cases.
[3] Corporate Appellant 2530-8552 Québec Inc. issued the records of employment for the various periods at issue to all the individual appellants.
[4] On November 26, 2002, the corporate Appellant requested that the Respondent rule on the issue of whether Isabelle Pépin, from May 10 to November 26, 1999, Pascal Milette, from September 27 to December 17, 1999, Diane Delisle, from November 26, 2001, to May 31, 2002, and Micheline Fraser, from June 16 to September 26, 1997, from June 15, 1998, to May 7, 1999, and from January 10 to December 23, 2000, performed insurable employment when they were in the employment of the company.
[5] By letters dated September 26, 2003, the Minister of National Revenue ("Minister") informed corporate appellant 2530-8552 Québec Inc., and Appellants Diane Delisle, Micheline Fraser, Pascal Milette and Isabelle Pépin, of his decisions according to which none of the Appellants held insurable employment.
[6] They all filed a Notice of Appeal to contest the determination by claiming that the work they performed was subject to a genuine contract of service.
[7] To establish and support his determinations in the cases of Isabelle Pépin, Pascal Milette, Diane Delisle and Micheline Fraser, the Minister made the following various assumptions of fact:
Case 2530-8552 Québec Inc. (2003-4433(EI)):
(a) The Appellant was incorporated on September 24, 1987; (admitted)
(b) Serge Pépin is the Appelant's only shareholder; (admitted)
(c) The Appellant conducted business under the name Général Surplus enr.; (admitted)
(d) The Appellant operated an equipment and machinery repair and sales business; it also offered warranty service after the sale for companies such as Wal-Mart, Canadian Tire and Sears; (admitted)
(e) The Appellant's annual sales were $575,510 as of September 30, 1999, and $513,661 as of September 30, 2000; (admitted)
(f) In 1992, the Appellant was located in the Grand-Mère area; (admitted)
(g) In October and November [and December] 1998 the Appellant moved to a new location that was adjacent to the former site; (admitted)
(h) The Appellant suspended its business operations over the 1998 holiday period until January 11, 1999, to move to the adjacent location; (admitted)
(i) From October 18, 1999, to November 16, 1999, the Appellant had a warehouse built in St-Tite; (denied)
DIANE DÉLISLE
(j) Diane Délisle was hired as an accounting clerk; (denied)
(k) Diane Délisle argued that her duties consisted of handling the invoicing, filing and faxing invoices, signing delivery slips, supervising other employees when Serge Pépin was absent and handling the manual accounting when the Appellant's accounting system became automated in June 1998; (denied)
(l) Micheline Fraser declared to a representative for the Appellant that she trained Diane Délisle from August 28, 2001, to November 25, 2001, when it was not until November 26, 2001, that Diane Délisle was entered on the payroll; (denied)
(m) On August 27, 2002, Diane Délisle declared to a representative for the Respondent that she was unaware of who did the ordering, considering that Serge Pépin did not want an employee going through the invoices when she claims to have done the invoicing; (denied)
(n) On July 31, 2003, Diane Délisle declared to a representative for the Respondent that her duties were not computer-related when the Appellant's accounting system was automated; (admitted)
(o) For the period from November 26, 2001, to May 31, 2002, Diane Délisle was on the payroll for 24 weeks of pay of $332,50 with 35 working hours per week and for 2 weeks of $380 of 40 hours; (admitted)
(p) On June 17, 2002, the Appellant issued to Diane Délisle a record of employment indicating November 26, 2001, as the first day of work and May 31, 2002, as the last day of work, and which indicated 920 insurable hours and $8,740 as insurable earnings; (admitted)
(q) On May 13, 2002, Diane Délisle stopped working for the Appellant; (denied)
(r) Diane Délisle continued to be on the Appellant's payroll without performing any services for the Appellant; (denied)
(s) The record of employment of Diane Délisle was not accurate where the hours and period are concerned; (denied)
(t) The period during which Diane Délisle allegedly worked does not correspond with the period during which she actually worked; (denied)
(u) The Appellant and Diane Délisle worked out an arrangement in order to make Diane Délisle eligible for unemployment insurance benefits; (denied)
MICHELINE FRASER
(v) Micheline Fraser was hired as an accoutning clerk; (denied)
(w) The duties of Micheline Fraser consisted of keeping the accounting books, doing the invoicing, reconciling bank statements, doing the payroll and making deposits; (denied)
(x) During the periods at issue, while working for the Appellant, Micheline Fraser did the accounting for the following businesses: Racibec, JSD Marine Inc., Rose Laframboise, Services RL and Maçonnerie Grand-Mère; (denied)
(y) Micheline Fraser did not have a fixed schedule and worked at her convenience; (denied)
(z) On February 20, 2002, Serge Pépin declared to a representative for the Respondent that Micheline Fraser knew her job and did not require supervision; (denied)
(aa) For the period from June 16, 1997, to September 27, 1997, Micheline Fraser was on the payroll for 4 weeks of pay of $280 with 35 hours of work per week; (admitted)
(bb) For the period from October 13, 1997, to December 20, 1997, she was on the payroll for 5 weeks of pay of $280 with 35 hours of work per week; (admitted)
(cc) On July 14, 1997, the Appellant issued a cheque for $20,000 made out to Micheline Fraser; (admitted)
(dd) On July 17, 2003, Serge Pépin declared to a representative for the Respondent that he was incapable of justifying the merit of the payment; (denied)
(ee) The Appellant issued cheques to the mother of Micheline Fraser, Jeannine Fraser, which were endorsed by Micheline Fraser; (admitted)
(ff) From January 1 to June 27, 1998, Micheline Fraser was on the payroll for 14 non-consecutive weeks of pay of $280 with 35 hours of work; (admitted)
(gg) From July 5 to December 26, 1998, Micheline Fraser was on the payroll for consecutive weeks of pay of $280 with 35 hours per week; (admitted)
(hh) From January 1, 1999, to May 7, 1999, Micheline Fraser was on the payroll for consecutive weeks of pay of $297.50 35 with 35 hours per week; she was then on the payroll for the weeks of October 2 and 30 and the weeks of December 17, 18, 25 and 31; (admitted)
(ii) From January 10, 2000, to March 25, 2000, Micheline Fraser was on the payroll 3 weeks per month for weeks of pay of $297.50 with 35 hours per week; (denied)
(jj) From March 26, 2000, to December 23, 2000, Micheline Fraser was on the payroll 3 weeks per month for consecutive weeks of pay of $297.50 with 35 hours per week; (admitted)
(kk) On October 21, 1997, the Appellant issued to Micheline Fraser a record of employment indicating June 6, 1997, as the first day of work, and September 26, 1997, as the last day of work and which indicated 175 insurable hours and $1,400.00 as insurable earnings; (admitted)
(ll) On May 21, 1999, the Appellant issued to Micheline Fraser a record of employment indicating June 15, 1998, as the first day of work and May 7, 1999, as the last day of work and which indicated 1610 insurable hours and $13,195.00 as insurable earnings; (admitted)
(mm)On January 4, 2001, the Appellant issued to Micheline Fraser a record of employment indicating January 10, 2000, as the first day of work and December 23, 2000, as the last day of work and which indicated 1645 insurable hours and $13,982.50 as insurable earnings; (admitted)
(nn) Following and between the periods at issue, Micheline Fraser continued to perform services each week for the Appellant without being on the payroll; (denied)
(oo) The records of employment of Micheline Fraser are not accurate where the hours and periods are concerned; (denied)
(pp) The periods during which Micheline Fraser allegedly worked do not correspond with the periods during which she actually worked; (denied)
(qq) The Appellant and Micheline Fraser worked out an arrangement in order to make Diane Délisle eligible for unemployment iinsurance benefits while continuing to perform services for the Appellant; (denied)
OTHER RELEVANT FACTS FOR MICHELINE FRASER
(rr) In January 1997, Serge Pépin, the Appellant's sole shareholder, left his wife; (admitted)
(ss) Since January 1998, Micheline Fraser has been Serge Pépin's common-law spouse; (denied)
PASCAL MILETTE
(TT) The Appellant and Pascal Milette are related persons within the meaning of the Income Tax Act because:
(I) Serge Pépin is the Appellant's sole shareholder. (admitted)
(II) Serge Pépin is Isabelle Pépin's father. (admitted)
(III) Pascal Milette is Isabelle Pépin's husband. (admitted)
(IV) Pascal Milette is connected by marriage [husband] to Serge Pépin, his father-in-law, who controlled the Appellant. (admitted)
(uu) During the period at issue, Pascal Milette claims having been hired as a painter and day labourer; (admitted)
(vv) During the period at issue, Pascal Milette claims that his duties consisted of painting the Appellant's new location, setting up the shelving, assisting with the move and arranging supplies when the move was completed; (denied)
(ww) Pascal Milette was on the payroll for the period from September 27 to December 17, 1999; (admitted)
(xx) Pascal Milette was on the payroll for 12 consecutive weeks of 40 hours; (admitted)
(yy) Pascal Milette was on the payroll and earned $340.00 each week; (admitted)
(zz) On January 3, 2000, the Appellant issued to Pascal Milette a record of employment indicating September 27, 1999, as the first day of work and December 17, 1999, as the last day of work and which indicated 480 insurable hours and $4,080.00 as insurable earnings; (admitted)
OTHER RELEVANT FACTS FOR PASCAL MILETTE
(aaa) On August 28, 2002, Serge Pépin declared to a representative for the Respondent that Pascal Milette did not assist with the company's move when he previously declared that Pascal Milette helped place heavy machinery in the showroom during the move; (denied)
(bbb) Prior to the period at issue, Pascal Milette painted, for 2 weeks in fall 1998, the Appellant's new location; (admitted)
(ccc) During the period at issue, Pascal Milette did not perform services for the Appellant; (denied)
(ddd) The Appellant and Pascal Milette worked out an arrangement in order to make Pascal Milette eligible for unemployment insurance benefits. (denied)
ISABELLE PÉPIN
(EEE) The Appellant and Isabelle Pépin are related persons within the meaning of the Income Tax Act because:
(I) Serge Pépin is the Appellant's sole shareholder. (admitted)
(II) Serge Pépin is Isabelle Pépin's father. (admitted)
(iii) Isabelle Pépin is connected by blood relationship to Serge Pépin who controlled the Appellant. (admitted)
(fff) During the period at issue, Isabelle Pépin claims having been hired as a day labourer and that her duties consisted of cleaning the shelves and arranging supplies when in reality she did not work during that period; (denied)
(ggg) On March 11, 2002, Isabelle Pépin declared to a representative for the Respondent that she worked from Monday to Friday between 8 a.m. and 5 p.m; (admitted)
(hhh) During the period at issue, Isabelle Pépin claims that her duties consisted of cleaning the shelves and arranging supplies when in relaity she did not work during that period; (denied)
(iii) On July 31, 2003, Isabelle Pépin declared to a representative for the Respondent that she regularly brought her two children aged 4 and 1 with her to work on the Appellant's premises; (admitted)
(jjj) Isabelle Pépin was on the payroll for the period from May 9 to November 27, 1999; (admitted)
(kkk) Isabelle Pépin was on the payroll for 29 consecutive weeks of 35 hours; (admitted)
(lll) Isabelle Pépin was on the payroll and earned $297.50 each week; (admitted)
(mmm) On December 2, 1999, the Appellant issued to Isabelle Pépin a record of employment indicating May 10, 1999, as the first day of work and November 26, 1999, as th last day of work and which indicated 1015 insurable hours and $8,627.50 as insurable earnings; (admitted)
(nnn) Isabelle Pépin's record of employment is inaccurate. (denied)
OTHER FACTS RELEVANT TO ISABELLE PÉPIN
(ooo) On August 28, 2002, Serge Pépin declared to a representative for the Respondent that Isabelle had been hired because of the move and that she was laid off because the move had been completed; (denied)
(ppp) On March 11, 2002, Isabelle Pépin declared to a representative for the Respondent that she did not exactly recall the period during which she worked for the Appellant but that it was during the moving period; (denied)
(qqq) The move of supplies was completed in February 1999; (admitted)
(rrr) During the period at issue, Isabelle Pépin did not perform services for the Appellant; (denied)
(sss) The Appellant and Isabelle Pépin worked out an arrangement in order to make Isabelle Pépin eligible for unemployment insurance benefits. (denied)
[8] The Appellant admitted paragraphs a, b, c, d, e, f, g, h, n, o, p, aa, bb, cc, ee, ff, gg, hh, jj, kk, ll, mm, rr, (TT) (I), (II), (III) and (IV), uu, ww, xx, yy, zz, bbb, EEE (I), (II) and (iii), ggg, iii, jjj, kkk, lll, mmm and qqq.
[9] However, many facts were denied; they are the facts mentioned in paragraphs i, j, k, l, m, q, r, s, t, u, v, w, x, y, z, dd, ii, nn, oo, pp, qq, ss, vv, aaa, ccc, ddd, fff, hhh, nnn, ooo, ppp, rrr and sss.
[10] Considering that each individual filed a Notice of Appeal, the Respondent listed a Reply to the Notice of Appeal for each individual's case setting out the reasons in support of the determination concerning it.
[11] Considering that many facts were admitted, the facts admitted should be reproduced for each of the cases.
[12] At the beginning of the hearing, all the facts were examined and counsel for the Appellants indicated to the Court the facts denied, the facts ignored and, finally, the facts admitted, hence the references in parentheses at the end of each of the facts outlined below.
Case of Isabelle Pépin (2003-4434(EI))
5. [...]
(A) The Payor was incorporated on September 24, 1987. (admitted)
(B) Serge Pépin is the Payor's sole shareholder. (admitted)
(C) Serge Pépin is the Appellant's father. (admitted)
(D) The Appellant is connected by blood relationship to Serge Pépin who controlled the Payor. (admitted)
6. [...]
(a) The Payor conducted business under the name Général Surplus enr.;
(admitted)
(b) The Payor operated an equipment and machinery repair and sales business; it also offered warranty service after the sale for companies such as Wal-Mart, Canadian Tire and Sears; (admitted)
(c) The Payor's annual sales were $575,510 as of September 30, 1999, and $513,661 as of September 30, 2000; (admitted)
(d) In 1992, the Payor was located in the Grand-Mère area; (admitted)
(e) In October and November [and December] 1998 the Payor moved to a new location that was adjacent to the former site; (admitted)
(f) The Payor suspended its business operations over the 1998 holiday period until January 11, 1999, to move to the adjacent location; (admitted)
(g) From October 18, 1999, to November 16, 1999, the Payor had a warehouse built in St-Tite; (denied)
(h) During the period at issue, the Appellant claims having been hired as a day labourer and that her duties consisted of cleaning the shelves and arranging supplies when in reality she did not work during that period; (denied)
(i) On March 11, 2002, the Appellant declared to a representative for the Respondent that she worked from Monday to Friday between 8 a.m. and 5 p.m; (admitted)
(j) On July 31, 2003, the Appellant declared to a representative for the Respondent that she regularly brought her two children aged 4 and 1 with her to work on the Appellant's premises; (denied)
(k) The Appellant was on the payroll for the period from May 9 to November 27, 1999; (admitted)
(l) The Appellant was on the payroll for 29 consecutive weeks of 35 hours; (admitted)
(m) The Appellant was on the payroll and earned $297.50 each week; (admitted)
(n) On December 2, 1999, the Payor issued to Isabelle Pépin a record of employment indicating May 10, 1999, as the first day of work and November 26, 1999, as th last day of work and which indicated 1015 insurable hours and $8,627.50 as insurable earnings; (admitted)
(o) The Appellant's record of employment is inaccurate. (denied)
7. [...]
(a) On August 28, 2002, Serge Pépin declared to a representative for the Respondent that the Appellant had been hired because of the move and that she was laid off because the move had been completed; (denied)
(b) On March 11, 2002, the Appellant declared to a representative for the Respondent that she did not exactly recall the period during which she worked for the Payor but that it was during the moving period; (denied)
(c) The move of supplies was completed in February 1999; (admitted)
(d) During the period at issue, the Appellant did not perform services for the Payor; (denied)
(e) The Payor and the Appellant worked out an arrangement in order to make the Appellant eligible for unemployment insurance benefits. (denied)
Case of Pascal Milette (2003-4438(EI))
5. [...]
(A) The Payor was incorporated on September 24, 1987. (admitted)
(B) Serge Pépin is the Payor's sole shareholder. (admitted)
(C) Serge Pépin is Isabelle Pépin's father. (admitted)
(D) The Appellant is Isabelle Pépin's husband. (admitted)
(E) The Appellant is connected by marriage [husband] to Serve Pépin, to Serge Pépin, his father-in-law, who controlled the Payor.
(admitted)
6. [...]
(a) The Payor conducted business under the name Général Surplus enr.; (admitted)
(b) The Payor operated an equipment and machinery repair and sales business; it also offered warranty service after the sale for companies such as Wal-Mart, Canadian Tire and Sears; (admitted)
(c) The Payor's annual sales were $575,510 as of September 30, 1999, and $513,661 as of September 30, 2000; (admitted)
(e) In 1992, the Payor was located in the Grand-Mère area; (admitted)
(e) In October and November [and December] 1998 the Payor moved to a new location that was adjacent to the former site; (admitted)
(f) The Payor suspended its business operations over the 1998 holiday period until January 11, 1999, to move to the adjacent location; (admitted)
(g) From October 18, 1999, to November 16, 1999, the Payor had a warehouse built in St-Tite; (denied)
(h) During the period at issue, the Appellant claims having been hired as a day labourer; (admitted)
(i) During the period at issue, the Appellant claims that his duties consisted of painting the Payor's new location, setting up the shelving, assisting with the move and arranging supplies when the move was completed; (denied)
(j) The Appellant was on the payroll for the period from September 27 to December 17, 1999; (admitted)
(k) The Appellant was on the payroll for 12 consecutive weeks of 40 hours; (admitted)
(l) The Appellant was on the payroll for 12 consecutive weeks of 40 hours; (admitted)
(m) On January 3, 2000, the Payor issued to the Appellant a record of employment indicating September 27, 1999, as the first day of work and December 17, 1999, as the last day of work and which indicated 480 insurable hours and $4,080.00 as insurable earnings; (admitted)
7. [...]
(a) On August 28, 2002, Serge Pépin declared to a representative for the Respondent that the Appellant did not assist with the company's move when he previously declared that the Appellant helped place heavy machinery in the showroom during the move; (denied)
(b) Prior to the period at issue, the Appellant painted, for 2 weeks in fall 1998, the Payor's new location; (admitted)
(c) During the period at issue, the Appellant did not perform services for the Payor; (denied)
(d) The Payor and the Appellant worked out an arrangement in order to make the Appellant eligible for unemployment insurance benefits. (denied)
Case of Diane Delisle (2003-4441(EI))
5. [...]
(a) The Payor was incorporated on September 24, 1987. (admitted)
(b) Serge Pépin is the Payor's sole shareholder. (admitted)
(c) The Payor conducted business under the name Général Surplus enr.; (admitted)
(d) The Payor operated an equipment and machinery repair and sales business; it also offered warranty service after the sale for companies such as Wal-Mart, Canadian Tire and Sears; (admitted)
(e) The Payor's annual sales were $575,510 as of September 30, 1999, and $513,661 as of September 30, 2000; (admitted)
(f) In 1992, the Payor was located in the Grand-Mère area; (admitted)
(g) In October, November and December 1998, the Payor moved to a new location that was adjacent to the former site; (admitted)
(h) The Payor suspended its business operations over the 1998 holiday period until January 11, 1999, to move to the adjacent location; (admitted)
(i) From October 18, 1999, to November 16, 1999, the Payor had a warehouse built in St-Tite; (denied)
(j) The Appellant was hired as an accounting clerk; (denied)
(k) The Appellant argued that her duties consisted of handling the invoicing, filing and faxing invoices, signing delivery slips, supervising other employees when Serge Pépin was absent and handling the manual accounting when the Payor's accounting system became automated in June 1998; (denied)
(l) Micheline Fraser declared to a representative for the Respondent that she trained the Appellant from August 28, 2001, to November 25, 2001, when it was not until November 26, 2001, that Diane Délisle was entered on the payroll; (denied)
(m) On August 27, 2002, the Appellant declared to a representative for the Respondent that she was unaware of who did the ordering, considering that Serge Pépin did not want an employee going through the invoices when she claims to have done the invoicing; (denied)
(n) On July 31, 2003, the Appellant declared to a representative for the Respondent that her duties were not computer-related when the Payor's accounting system was automated; (admitted)
(o) For the period from November 26, 2001, to May 31, 2002, the Appellant was on the payroll for 24 weeks of pay of $332,50 with 35 working hours per week and for 2 weeks of $380 of 40 hours; (admitted)
(p) On June 17, 2002, the Payor issued to the Appellant a record of employment indicating November 26, 2001, as the first day of work and May 31, 2002, as the last day of work, and which indicated 920 insurable hours and $8,740 as insurable earnings; (admitted)
(q) On May 13, 2002, the Appellant stopped working for the Payor; (denied)
(r) The Appellant continued to be on the Payor's payroll without performing any services for the Payor; (denied)
(s) The Appellant's record of employment was not accurate where the hours and period are concerned; (denied)
(t) The period during which the Appellant allegedly worked does not correspond with the period during which she actually worked; (denied)
(u) The Payor and the Appellant worked out an arrangement in order to make the Appellant eligible for unemployment iinsurance benefits; (denied)
Case of Micheline Fraser (2003-4442(EI))
5. [...]
(a) The Payor was incorporated on September 24, 1987. (admitted)
(b) Serge Pépin is the Payor's sole shareholder. (admitted)
(c) The Payor conducted business under the name Général Surplus enr.; (admitted)
(d) The Payor operated an equipment and machinery repair and sales business; it also offered warranty service after the sale for companies such as Wal-Mart, Canadian Tire and Sears; (admitted)
(e) The Payor's annual sales were $575,510 as of September 30, 1999, and $513,661 as of September 30, 2000; (admitted)
(f) In 1992, the Payor was located in the Grand-Mère area; (admitted)
(g) In October and November [and December 1998], the Payor moved to a new location that was adjacent to the former site; (admitted)
(h) The Payor suspended its business operations over the 1998 holiday period until January 11, 1999, to move to the adjacent location; (admitted)
(i) From October 18, 1999, to November 16, 1999, the Payor had a warehouse built in St-Tite; (denied)
(j) The Appellant was hired as an accoutning clerk; (denied)
(k) The Appellant's duties consisted of keeping the accounting books, doing the invoicing, reconciling bank statements, doing the paroll and making deposits; (denied)
(l) During the periods at issue, while working for the Payor, the Appellant did the accounting for the following businesses: Racibec, JSD Marine Inc., Rose Laframboise, Services RL and Maçonnerie Grand-Mère; (denied)
(m) The Appellant did not have a fixed schedule and worked at her convenience; (denied)
(n) On February 20, 2002, Serge Pépin declared to a representative for the Respondent that the Appellant knew her job and did not require supervision; (denied)
(o) For the period from June 16, 1997, to September 27, 1997, the Appellant was on the payroll for 4 week of pay of $280 with 35 hours of work per week; (admitted)
(p) For the period from October 13, 1997, to December 20, 1997, the Appellant was on the payroll for 5 weeks of pay of $280 with 35 hours of work per week; (admitted)
(q) On July 14, 1997, the Payor issued a cheque for $20,000 made out to the Appellant; (admitted)
(r) On July 17, 2003, Serge Pépin declared to a representative for the Respondent that he was incapable of justifying the merit of the payment; (denied)
(s) The Payor issued cheques to the Appellant's mother, Jeannine Fraser, which were endorsed by the Appellant; (admitted)
(t) From January 1 to June 27, 1998, the Appellant was on the payroll for 14 non-consecutive weeks of pay of $280 with 35 hours of work; (admitted)
(u) From July 5 to December 26, 1998, the Appellant was on the payroll for consecutive weeks of pay of $280 with 35 hours per week; (admitted)
(v) From January 1, 1999, to May 7, 1999, the Appellant was on the payroll for consecutive weeks of pay of $297.50 35 with 35 hours per week; she was then on the payroll for the weeks of October 2 and 30 and the weeks of December 17, 18, 25 and 31; (admitted)
(w) From January 10, 2000, to March 25, 2000, the Appellant was on the payroll 3 weeks per month for weeks of pay of $297.50 with 35 hours per week; (admitted)
(x) From March 26, 2000, to December 23, 2000, the Appellant was on the payroll 3 weeks per month for consecutive weeks of pay of $297.50 with 35 hours per week; (admitted)
(y) On October 21, 1997, the Payor issued to the Appellant a record of employment indicating June 6, 1997, as the first day of work, and September 26, 1997, as the last day of work and which indicated 175 insurable hours and $1,400.00 as insurable earnings; (admitted)
(z) On May 21, 1999, the Payor issued to the Appellant a record of employment indicating June 15, 1998, as the first day of work and May 7, 1999, as the last day of work and which indicated 1610 insurable hours and $13,195.00 as insurable earnings; (admitted)
(aa) On January 4, 2001, the Payor issued to the Appellant a record of employment indicating January 10, 2000, as the first day of work and December 23, 2000, as the last day of work and which indicated 1645 insurable hours and $13,982.50 as insurable earnings; (admitted)
(bb) Following and between the periods at issue, the Appellant continued to perform services each week for the Payor without being on the payroll; (denied)
(cc) The Appellant's records of employment are not accurate where the hours and periods are concerned; (denied)
(dd) The periods during which the Appellant allegedly worked do not correspond with the periods during which she actually worked; (denied)
(ee) The Payor and the Appellant worked out an arrangement in order to make the Appellant eligible for unemployment iinsurance benefits while continuing to perform services for the Payor; (denied)
6. OTHER RELEVANT FACTS
(a) In January 1997, Serge Pépin, the Payor's sole shareholder, left his wife; (admitted)
(b) Since January 1998, the Appellant has been Serge Pépin's common-law spouse; (denied)
[13] Serge Pépin, sole shareholder of the corporate Appellant which conducted business under the name Général Surplus enr., testified at length.
[14] He explained and described the company of which he was the sole shareholder by referring, in his testimony, to each of the persons, that is, Micheline Fraser, Diane Delisle, Pascal Milette and, finally, Isabelle Pépin, who performed work of which the insurability is at issue.
[15] According to Serge Pépin, Micheline Fraser was not his common-law spouse when she started working for the company. She became so at an unspecified date.
[16] Isabelle Pépin is his daughter and Pascal Milette is Isabelle Pépin's husband. As for Diane Delisle, she was in no way related to Serge Pépin; she was therefore a third party where he and his business were concerned.
[17] Serge Pépin explained that his ex-wife worked for the company he ran until the family situation deteriorated to the point where there was a definitive breakup which was also sanctioned by divorce.
[18] His ex-wife, Lise Pépin, had had major responsibilities in the company; she had worked there continuously and uninterruptedly since the company's inception.
[19] According to Serge Pépin's testimiony, his ex-wife was neither disciplined nor methodical in performing her work; moreover, she was not knowledgeable enough in administration and accounting to be autonomous.
[20] Therefore, the company had to, frequently and continually, resort to the services of one Céline Boisvert for the accounting, particularly for fiscal year-ends.
[21] In substance, Serge Pépin described the whole context and the circumstances and reasons that led him to hiring the various persons mentioned earlier, that is to say all the workers, Isabelle Pépin, Pascal Milette, Diane Delisle and Micheline Fraser whose work insurability for the periods at issue are the subject of the appeals.
[22] He explained why the Appellants were hired by the compnay he ran and controlled alone.
[23] The company was highly specialized; generally, it had in stock replacement parts for mechanical or electrical equipment which, often, is no longer manufactured thus making the equipment rarely available and highly sought after.
[24] Consequently, the corporate Appellant often conducted business with clients outside Quebec. Besides this speciality it was greatly renowned for, the company had various contracts with large companies such as Wal-Mart, Canadian Tire, and many others, to ensure service after sales for various machines and mechanical and electrical equipment. Furthermore, the company also had its own equipment stock it sold.
[25] A significant part of the business was conducted over the telephone. The business had three different lines and each one also had a 1-800 number, which is equivalent to six lines. Many operations, ranging from reception to reshipping, were necessary.
[26] Office work was heavy in that the invoicing, transportation and delivery required many hours of work. Often, clients were Anglophone.
[27] Since Serge Pépin did not express himself fluently in English, he had to resort to employees in order to take the numerous calls in English which were highly important from the standpoint of business volume.
Case of Micheline Fraser
[28] Serge Pépin explained that he met Micheline Fraser when she was working at a neighbouring company; knowing that she had experience and expertise in accounting and administration, he asked her, he said, to work for his company, which was in great need of her knowledge and expertise.
[29] He described Micheline Fraser's work as similar or comparable to the work his ex-wife performed over the years, adding, however, insisting heavily on this fact, that Ms. Fraser was more competent, more disciplined, more organized; consequently, according to him, Micheline Fraser's work was more complete, satisfactory and efficient.
[30] He indicated that in the beginning there was essentially an employer-employee relationship between them. After his ex-wife left following their breakup, he allegedly rented a room in his residence to Micheline Fraser. At the time, the relationship was supposedly strictly business.
[31] Later, at an unspecified time, they became common-law spouses. They shared cohabitation expenses.
[32] Serge Pépin also explained that Micheline Fraser chose to go back to school full-time and she therefore had to quit her job to devote herself full-time to her studies. This absence resulting from her going back to school was covered by the hiring of Diane Delisle.
[33] He also submitted that the quality of Micheline Fraser's work, her efficiency and very high competence were such that her presence at the company was no longer required continuously. Explanations concerning the start and end dates of the periods of work, however, remained very vague and inaccurate apart from the last period for which the reason of the end of the work was the return to school.