Date: 20001004
Docket: A-410-99
CORAM: DESJARDINS, J.A.,
ROTHSTEIN, J.A.,
NOËL, J.A.
In Re: The Employment Insurance Act
BETWEEN:
SATURN CONSTRUCTION SYSTEMS LTD.
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Vancouver, October 3, 2000)
ROTHSTEIN, J.A.
[1] The applicant seeks judicial review of a decision of the Tax Court of Canada under its informal procedure in which the learned Tax Court Judge found that individuals working for the applicant were employees for purposes of the Employment Insurance Act and Canada Pension Plan and dismissed an appeal from an assessment for unremitted Employment Insurance and Canada Pension Plan premiums.
[2] Although the applicant made a number of arguments, the judicial review can be decided on one issue.
[3] The Trial Judge concluded that there was "clear evidence of false records" by the applicant. He stated at paragraph 16(c) of his reasons:
| "Moreover the clear evidence of false records in the hourly work sheets indicates to the Court that they were purposely completed that way by Saturn in order to enhance its "fixed price" contract statements from the workers. That way the hourly rates could not be tested against the alleged contract work." |
[4] The Minster concedes that the Trial Judge erred in this conclusion. The Minister did not argue false records in the Tax Court. The Minister acknowledges that there was no evidence upon which the Trial Judge could base such a conclusion. Counsel for the applicant and respondent, by reference to the applicant's time sheets, demonstrated to the satisfaction of this Court that the records were not false.
[5] A finding of false records without evidence is an error of law. Having regard to the importance of credibility in the Judge's consideration of the matter and the significance of an erroneous finding of false records in this context, it is unclear to us that the Tax Court Judge would have come to the same conclusion and dismissed the appellant's appeal had he not made that error.
[6] This application for judicial review will be allowed with costs, the decision of the Tax Court Judge will be set aside and the matter will be referred back to the Tax Court of Canada for redetermination by a different Judge.
(Sgd.) "Marshall Rothstein"
J.A.
October 4, 2000
Vancouver, British Columbia
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: A-410-99 |
| STYLE OF CAUSE: Saturn Construction Systems Ltd |
v.
The Minister of National Revenue
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: October 3, 2000 |
REASONS FOR JUDGMENT BY ROTHSTEIN, J.A.
| CONCURRED IN BY: Desjardins, J.A., |
Noël, J.A.
| DATED: October 4, 2000 |
APPEARANCES:
| Mr. J. Cam McKechnie For the Applicant |
| Ms. Susan Wong For the Respondent |
SOLICITORS OF RECORD:
McKechnie & Company
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
Date: 20001004
Docket: A-410-99
CORAM: DESJARDINS, J.A.,
ROTHSTEIN, J.A.,
NOËL, J.A.
In Re: The Employment Insurance Act
BETWEEN:
SATURN CONSTRUCTION SYSTEMS LTD.
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
Heard at Vancouver, BC on October 3, 2000
JUDGMENT delivered orally from the Bench at Vancouver, BC on October 3, 2000 and signed on October 4, 2000.
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.