FRANCINE PROVOST Applicant v. THE MINISTER OF NATIONAL REVENUE, 2003 FCA 172

Date: 20030401 Docket: A-459-01 Montréal, Quebec, April 1, 2003 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A. BETWEEN: FRANCINE PROVOST Applicant and THE MINISTER OF NATIONAL REVENUE Respondent JUDGMENT The application for judicial review is allowed, the decision of the deputy judge is set aside and the matter is returned to the Chief Judge of the Tax Court of Canada for rehearing before a judge other than a deputy judge. The applicant is entitled to her disbursements alone. "Gilles Létourneau" J.A. Certified true translation Suzanne Gauthier, C. Tr., LL.L.

Date: 20030401 Docket: A-460-01 Montréal, Quebec, April 1, 2003 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A. BETWEEN: VLADIMIRO MASSIGNANI Applicant and THE MINISTER OF NATIONAL REVENUE Respondent JUDGMENT The application for judicial review is allowed, the decision of the deputy judge is set aside and the matter is returned to the Chief Judge of the Tax Court of Canada for rehearing before a judge other than a deputy judge. The applicant is entitled to his disbursements alone. "Gilles Létourneau" J.A. Certified true translation

Suzanne Gauthier, C. Tr., LL.L. Date: 20030401 Docket: A-458-01 Neutral Citation: 2003 FCA 172 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A. BETWEEN: TIBÉRIO MASSIGNANI Applicant and THE MINISTER OF NATIONAL REVENUE Respondent Hearing held at Montréal, Quebec, April 1, 2003. Judgment delivered from the bench at Montréal, Quebec, April 1, 2003. REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A. Date: 20030401 Docket: A-458-01 Neutral Citation: 2003 FCA 172 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A.

BETWEEN: TIBÉRIO MASSIGNANI Applicant and THE MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec April 1, 2003.) LÉTOURNEAU J.A. [ 1 ] We are of the opinion that this application for judicial review of a decision of a deputy judge of the Tax Court of Canada on insurability of employment should be allowed for two reasons. [ 2 ] First, the deputy judge failed to consider and fulfill his role under the Unemployment Insurance Act , S.C. 1970-71-72. c. 48 (the "Act"), paragraph 3(2)( c ), a role that this Court described in Légaré v.

Canada (1999), 246 N.R. 176 and Pérusse v. Canada (2000), 261 N.R. 150 , which were followed in Valente v. Minister of National Revenue , 2003 FCA 132 . This role does not allow the judge to

substitute his discretion for that of the Minister, but it does encompass the duty to "verify whether the facts inferred or relied on by the Minister are real and were correctly assessed having regard to the context in which they occurred, and after doing so, ... decide whether the conclusion with which the Minister was 'satisfied' still seems reasonable": see Légaré, supra , at page 179, Pérusse, supra , at page 162. [ 3 ] But the deputy judge confined himself to summarizing the testimonies presented and the applicable law (although his

summary of the law was not up to date), without engaging in an analysis of these testimonies, although this was necessary in order to determine whether the Minister's conclusion still seemed reasonable. Furthermore, it is not always clear from the

summary of the testimonies whether certain statements are attributable to the witnesses or instead represent findings of fact by the deputy judge. [ 4 ] Using a stereotyped formula from which as much a given conclusion as its opposite can be drawn, the deputy judge upheld the Minister's decisions. The use of such a formula leads us to the second reason why the application for judicial review must be allowed. [ 5 ] A judge hearing an appeal on insurability of employment is subject to a statutory duty to give reasons for his decision (subsection 70(2) of the Act). In Bouchard v.

A.G.C. , A-425-01, January 21, 2003, Les Entreprises Forestières Hervey Bouchard Inc. v. A.G.C. , A-426-01, January 21, 2003, Huard v. Canada , A-345-00, January 22, 2003, Dion v. Canada , A-624-97, April 29, 1998, to name only a few cases, this Court has ruled that reasons formulated in terms analogous to those used in this case by the deputy judge are inadequate. [ 6 ] The parties argued before us two questions of law that had been put to the deputy judge, who ignored them: the limitation period in

section 43 of the Act and the power of the Minister of National Revenue to reconsider, as he did in 1998, a 1994 decision declaring the applicant's employment to be insurable. [ 7 ] It is clear that the limitation period in subsection 43(1) of the Act in relation to the qualification of a claimant to benefits does not apply to the determination of the insurability of an employment: Daoust (Della Rocca) v. Canada (Minister of National Revenue) , [1996] F.C.J. No. 1341 , Canada (Attorney General) v. D'Astoli , [1997] F.C.J.

No. 1414 . [ 8 ] As to the second question, we are of the opinion that the Minister could, in April 1998, review his previous decision on the insurability of the applicant's employment, either pursuant to a request made by the Commission under

section 90 of the Employment Insurance Act , S.C. 1996, c. 23 , or on his own initiative under

section 94 of that Act. [ 9 ] For these reasons, the application for judicial review will be allowed with costs, the decision of the deputy judge will be set aside and the matter will be returned to the Chief Judge of the Tax Court of Canada for rehearing before a judge other than a deputy judge. A copy of these reasons will be filed in dockets A-459-01 and A-460-01 in support of the judgment delivered in each of those cases. "Gilles Létourneau" J.A. Certified true translation Suzanne Gauthier, C. Tr., LL.L.

FEDERAL COURT OF CANADA APPEAL DIVISION Date: 20030401 Docket: A-458-01 Between: TIBÉRIO MASSIGNANI Applicant and THE MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT

FEDERAL COURT OF CANADA APPEAL DIVISION SOLICITORS OF RECORD DOCKET: A-458-01 STYLE: TIBÉRIO MASSIGNANI Applicant and THE MINISTER OF NATIONAL REVENUE Respondent PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: April 1, 2003 REASONS FOR JUDGMENT OF THE COURT (LÉTOURNEAU, NADON, PELLETIER JJ.A.) DELIVERED FROM THE BENCH: LÉTOURNEAU J.A. DATED: April 1, 2003 APPEARANCES : Charles André Ashton FOR THE APPLICANT Valérie Tardif FOR THE RESPONDENT SOLICITORS OF RECORD : Ashton Martin FOR THE APPLICANT Longueuil, Quebec Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec