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Date: 20030204

 

Docket: A-468-01

 

Neutral Citation: 2003 FCA 62

 

 

CORAM:       DESJARDINS J.A.

LÉTOURNEAU J.A.

NADON J.A.

 

 

BETWEEN:

 

                                                         ATTORNEY GENERAL

                                                                   OF CANADA

 

                                                                                                                                            Applicant

 

                                                                           and

 

 

                                          MONDO-TECH INTERNATIONAL INC.

                                                                             

                                                                                                                                        Respondent

 

 

                                   Hearing held in Montréal, Quebec, on February 4, 2003.

 

                  Judgment delivered from the bench at Montréal, Quebec, on February 4, 2003.

 

 

 

REASONS FOR JUDGMENT OF THE COURT:                                             LÉTOURNEAU J.A.

 


Date: 20030204

 

Docket: A-468-01

 

Neutral Citation: 2003 FCA 62

 

 

CORAM:       DESJARDINS J.A.

LÉTOURNEAU J.A.

NADON J.A.

 

 

BETWEEN:

 

                                                         ATTORNEY GENERAL

                                                                   OF CANADA

 

                                                                                                                                            Applicant

 

                                                                           and

 

 

                                          MONDO-TECH INTERNATIONAL INC.

                                                                             

                                                                                                                                        Respondent

 

 

 

                                     REASONS FOR JUDGMENT OF THE COURT

                                      (Delivered from the bench at Montréal, Quebec,

                                                            on February 4, 2003.)

 

LÉTOURNEAU J.A.

 

 

[1]               This is an application for judicial review of a decision of a Deputy Judge of the Tax Court of Canada setting aside the determination by the Minister of National Revenue that Carlos Perez Miqueiro (the worker) was in insurable employment with the respondent from August 1, 1998 to January 12, 1999 within the meaning of the Employment Insurance Act, S.C. 1996, c. 23.


[2]               An analysis of both the agreement between the Government of Canada and the  respondent and the tripartite agreement between the respondent, the worker and Métalec Inc.

(an analysis not done by the Deputy Judge) indicates that the worker was working as an intern for an international youth internship program. The analysis also shows that the worker was hired and paid by the respondent, that it assumed some responsibilities for the worker and that the worker had to submit to the authority of the respondent on any matter that related to the program or that might have an impact on the program. Lastly, it was the respondent who had the power, at its sole discretion, to rescind the agreement with the worker.

 

[3]               In our view, these agreements show that the respondent was the worker’s employer, and that the Deputy Judge erred in finding that the respondent acted as a mere intermediary.

 

[4]               The Deputy Judge also erred in finding that the worker did not receive any remuneration because the amounts he received came from a grant from the Canadian International Development Agency. Article 4.1.15 of the tripartite agreement provided that the worker would be paid by the respondent on production of bills at the beginning of each month.

 

[5]               Lastly, the Deputy Judge completely ignored the provisions of section 5 and paragraph

6(b) of the Employment Insurance Regulations, SOR/96-332, which state that employment of a trainee outside Canada or partly outside Canada is insurable employment provided that the conditions set out in those sections are met, which is the case here.


[6]               For these reasons, the application for judicial review will be allowed with costs, the decision of the Deputy Judge of the Tax Court of Canada dated July 17, 2001 will be set aside, and the matter will be returned to the Chief Judge of the Tax Court of Canada or to a judge designated by him for a rehearing on the basis that the appeal by the respondent of the Minister’s determination made on August 6, 1999 must be dismissed.

 

 

 

 

 

“Gilles Létourneau”         

                                                                                                                                                      J.A.                 

 

 

 

Certified true translation

 

 

Mary Jo Egan, LLB


                                                                        FEDERAL COURT OF CANADA

                               APPEAL DIVISION

 

 

Date: 20030204

 

Docket: A-468-01

 

Between:

 

                           ATTORNEY GENERAL

                                     OF CANADA

 

                                                                                Applicant

 

and

 

 

 

            MONDO-TECH INTERNATIONAL INC.

                                               

                                                                            Respondent

 

 

 

 

 

                                                                                                                            

 

 

 

       REASONS FOR JUDGMENT OF THE COURT

 

 

                                                                                                                            

 

 


                                                 FEDERAL COURT OF CANADA

                                                             APPEAL DIVISION

 

                                                      SOLICITORS OF RECORD

 

 

DOCKET:      A-468-01

 

CORAM:       DESJARDINS J.A.

            LÉTOURNEAU J.A.

            NADON J.A.

 

 

STYLE OF CAUSE: 

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

                                                                           and

 

                                          MONDO-TECH INTERNATIONAL INC.

                                                                                                                                        Respondent

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      February 4, 2003

 

REASONS FOR JUDGMENT OF THE COURT BY:   Létourneau J.A.

 

DATED:                                             February 4, 2003

 

 

APPEARANCES:

 

Nathalie Labbé                                     FOR THE APPLICANT

Mounes Ayadi

 

 

SOLICITORS OF RECORD:

 

Morris Rosenberg                                             FOR THE APPLICANT

Deputy Attorney General of Canada

Montréal, Quebec

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