Date: 20000518
Docket: A-124-99
Montréal, Quebec, Thursday, the 18th day of May, 2000
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
ROXBORO EXCAVATION INC.
and
DANIEL THÉORÊT
MICHEL THÉORÊT
RAYNALD THÉORÊT
ROGER THÉORÊT
YVON THÉORÊT
Applicants
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
JUDGMENT
The application for judicial review is dismissed with costs.
| "Robert Décary" |
| J.A. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20000518
Docket: A-124-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
ROXBORO EXCAVATION INC.
and
DANIEL THÉORÊT
MICHEL THÉORÊT
RAYNALD THÉORÊT
ROGER THÉORÊT
YVON THÉORÊT
Applicants
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
Hearing held in Montréal, Quebec, Thursday, May 18, 2000
Judgment rendered at the hearing in Montréal, Quebec, Thursday, May 18, 2000
REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A.
Date: 20000518
Docket: A-124-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
ROXBORO EXCAVATION INC.
and
DANIEL THÉORÊT
MICHEL THÉORÊT
RAYNALD THÉORÊT
ROGER THÉORÊT
YVON THÉORÊT
Applicants
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced from the bench at the hearing in Montréal,
Quebec, Thursday, May 18, 2000)
DÉCARY J.A.
[1] We are of the opinion that this application for judicial review cannot succeed.
[2] It is true, as the applicants' counsel notes, that the Tax Court of Canada judge was unable, in his reasons for judgment, to determine that the jobs were not excluded under paragraph 3(2)(c) of the Unemployment Insurance Act since he had not allowed counsel to make submissions on this point. Normally, that would constitute a breach of the rules of natural justice. In the case at bar, however, the Minister's finding in relation to non-exclusion had not been disputed in the notice of appeal and the Minister, correctly, had not referred to it in his reply to the notice of appeal. The issue was not before the Court and no particular evidence had been submitted on it, so the judge was wrong to address this issue in his reasons, but his comments were made in obiter and in no way affect the result in the case.
[3] Indeed, on the sole issue that was before him, the absence of a relationship of subordination (par. 3(1)(a) of the Act) because the applicants were shareholders and directors of the payer, the judge made no error that would be liable to review when he found that in this case the applicants, albeit directors, exercised, under the supervision of the payer, duties that were such that there was in reality a relationship of subordination.
[4] The application for judicial review will be dismissed with costs.
"Robert Décary"
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF APPEAL
Date: 20000518
Docket: A-124-99
BETWEEN:
ROXBORO EXCAVATION INC.
and
DANIEL THÉORÊT
MICHEL THÉORÊT
RAYNALD THÉORÊT
ROGER THÉORÊT
YVON THÉORÊT
Applicants
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: A-124-99 |
| STYLE: |
| ROXBORO EXCAVATION INC. |
| and |
| DANIEL THÉORÊT |
| MICHEL THÉORÊT |
| RAYNALD THÉORÊT |
| ROGER THÉORÊT |
| YVON THÉORÊT |
| Applicants |
| - and - |
| THE MINISTER OF NATIONAL REVENUE |
| Respondent |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: THURSDAY, MAY 18, 2000 |
REASONS FOR JUDGMENT OF THE COURT PRONOUNCED FROM THE BENCH DURING THE HEARING BY DÉCARY J.A.
APPEARANCES:
Gilbert Poliquin for the applicants
Marie-Andrée Legault for the respondent
SOLICITORS OF RECORD:
Gilbert Poliquin
Advocate
500 Place d'Armes
Suite 2410
Montréal, Quebec
H2Y 2W2 for the applicants
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent