Date:
20030205
Docket:
A‑529‑01
Neutral
Citation: 2003 FCA 66
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
NADON
J.A.
BETWEEN:
PETER
LAFAVE
Applicant
and
ATTORNEY
GENERAL
OF
CANADA
Respondent
Hearing
held at Montréal, Quebec, on February 5, 2003.
Judgment delivered from the bench. at Montréal,
Quebec, on February 5, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date:
20030205
Docket:
A‑529‑01
Neutral
Citation: 2003 FCA 66
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
NADON J.A.
BETWEEN:
PETER
LAFAVE
Applicant
and
ATTORNEY
GENERAL
OF
CANADA
Respondent
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal, Quebec,
on
February 5, 2003.)
LÉTOURNEAU J.A.
[1]
Taking into account the evidence in the file and the credibility of the
applicant, we have not been convinced in this case that we should disregard the
principles laid down and followed by this Court in Attorney General of
Canada v. Drouin, A‑348‑96, Attorney General of Canada v.
Bernier, A‑136‑96, Viel v. Canada (Employment Insurance
Commission) (2001), 278 N.R. 40 (F.C.A.), application for leave
to appeal to the Supreme Court of Canada dismissed October 4, 2001.
[2]
Counsel for the applicant maintained before us that the amounts of
income established by the Employment Insurance Commission and attributed to the
applicant were wrong, because that income represented a greater share of the
company’s net profit than the applicant was entitled to, namely, one-third. It
appears from the financial statements of the company for the period in dispute
that the net profit was $48,466. If that had been paid in the form of
dividends, the applicant’s income would have been in the order of $16,155 and
not $31,506, as the Commission claimed.
[3]
In this case, the amount of the applicant’s income is determined not
from the company’s net profit, but from the gross income of the company
remaining after deducting the operating expenses incurred other than capital
expenditures, as provided in section 35 of the Employment Insurance
Regulations:
|
35. (10) For the purposes of
subsection (2), "income" includes
|
35. (10) Pour
l’application du paragraphe (2), « revenu » vise
notamment :
|
|
.
. .
|
.
. .
|
|
(c) in the case of a claimant who is self‑employed in
employment other than farming, the amount of the gross income from that
employment remaining after deducting the operating expenses, other than
capital expenditures, incurred therein; and
. . .
|
c) dans le cas d’un prestataire qui
est un travailleur indépendant exerçant un emploi non relié aux travaux
agricoles, le reste du revenu brut qu’il tire de cet emploi après déduction
des dépenses d’exploitation qu’il y a engagées et qui ne constituent pas des
dépenses en immobilisations;
. . .
|
[4]
We are satisfied that the Commission used the legal basis provided by
section 35(10)(c) of the Regulations as the basis for calculating the
applicant’s income.
[5]
At the hearing, counsel for the respondent filed new figures resulting
from a new calculation required after the umpire set aside the penalties
imposed on the applicant. These new calculations were also done on the basis of
the above-mentioned Regulations.
[6]
For these reasons, the application for judicial review will be dismissed
with costs.
“Gilles
Létourneau”
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20030205
Docket: A‑529‑01
Between:
PETER LAFAVE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL
COURT OF CANADA
APPEAL
DIVISION
SOLICITORS
OF RECORD
DOCKET: A‑529‑01
CORAM: DESJARDINS
J.A.
LÉTOURNEAU J.A.
NADON J.A.
STYLE OF
CAUSE:
PETER
LAFAVE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
PLACE OF
HEARING: Montréal, Quebec
DATE OF HEARING: February 5, 2003
REASONS FOR JUDGMENT OF THE COURT BY: Létourneau J.A.
DATED: February
5, 2003
APPEARANCES:
Jean‑Guy
Ouellet FOR
THE APPLICANT
Pauline
Leroux FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Ouellet,
Nadon & Associés FOR
THE APPLICANT
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
Montréal, Quebec
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