Minister of National Revenue v. Schnurer Estate, (1997) 208 N.R. 339 (FCA)

• Judge: Isaac, C.J., Pratte and Stone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 03, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 208 N.R. 339 (FCA)

MNR v. Schnurer Estate (1997), 208 N.R. 339 (FCA)

MLB headnote and full text

Her Majesty The Queen (applicant) v. Hazel Schnurer, Executrix of the Estate of Joseph Schnurer (respondent)

(A-315-96)

Indexed As: Minister of National Revenue v. Schnurer Estate

Federal Court of Appeal

Isaac, C.J., Pratte and Stone, JJ.A.

February 3, 1997.

Summary:

The Minister of National Revenue notified Kurves by Design Inc. and Schnurer that Schnurer's employment was not insurable under the Unemployment Insurance Act for two reasons. First, the Minister stated that Schnurer and Kurves by Design Inc. had not been dealing with each other at arm's length and therefore Schnurer's employment was "excepted employment" within the meaning of s. 3(2)(c) of the Act. Secondly, the defi­nition of "insurable employment" in s. 3(1)(a) required that employment be under an express or implied contract of service and the Minister determined that Schnurer was not employed pursuant to a contract of ser­vice. Schnurer appealed the Minister's deter­mination.

The Tax Court of Canada held that the Minister could not proceed on the basis that the determination relied upon both ss. 3(1)(a) and 3(2)(c) because such a determi­nation would require mutually exclusive findings of fact. The Tax Court judge ordered that the appeal be rescheduled and directed the Minister to advise which one of the two reasons contained in the Minister's de­termi­nation would be relied upon. The Minister applied for judicial review of the decision.

The Federal Court of Appeal allowed the application and referred the matter back to another judge of the Tax Court for a hearing based on the pleadings as originally filed.

Courts - Topic 4101

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Section 28 appeal - Scope of - The Minister of National Revenue determined that Schnurer's employment was not insurable under the Unemployment Insurance Act for two reasons based on ss. 3(1)(a) and 3(2)(c) of the Act - Schnurer appealed the determination - The Tax Court, holding that the Minister could not rely upon both ss. 3(1)(a) and 3(2)(c), ordered that the appeal be rescheduled and directed the Minister to advise which of the two rea­sons would be relied upon - The Minister applied under s. 28(1) of the Federal Court Act for judicial review of the decision - The Federal Court of Appeal held that it was appropriate to hear the judicial review application - While the Tax Court judge's decision did not finally dispose of the appeal, it effectively disposed of one of the two substantive grounds advanced by the Minister, either of which could be deter­minative of the appeal - See para­graphs 7 to 13.

Unemployment Insurance - Topic 221

Insurable employment - General - The Minister of National Revenue determined that Schnurer's employment was not insurable under the Unemployment In­surance Act for two reasons based on ss. 3(1)(a) and 3(2)(c) of the Act - Schnurer appealed the determination - The Tax Court held that the Minister could not proceed on the basis that the determination relied upon both ss. 3(1)(a) and 3(2)(c) because such a determination would require mutually exclusive findings of fact - The Tax Court judge ordered that the appeal be rescheduled and directed the Minister to advise which of the two rea­sons would be relied upon - The Federal Court of Appeal held that the Tax Court erred in concluding that the Minister could not rely on both ss. 3(1)(a) and 3(2)(c) in responding to the appeal - See paragraphs 14 to 21.

Cases Noticed:

National Indian Brotherhood v. Juneau (No. 2), [1971] F.C. 73 (F.C.A.), refd to. [para. 8].

Ferrow v. Minister of Employment and Immigration, [1983] 1 F.C. 679; 46 N.R. 299 (F.C.A.), refd to. [para. 9].

Canada (Attorney General) v. Cylien, [1973] F.C. 1166 (F.C.A.), refd to. [para. 9, footnote 3].

British Columbia Packers Ltd. v. Canada Labour Relations Board et al., [1973] F.C. 1194 (F.C.A.), refd to. [para. 9, footnote 3].

Danmor Shoes Co., Re, [1974] 1 F.C. 22; 1 N.R. 422 (F.C.A.), refd to. [para. 9, footnote 3].

Anti-dumping Act, In Re and Danmore Shoes Co. - see Danmore Shoes Co., Re.

Via Rail Canada Inc. v. Butterill et al., [1982] 2 F.C. 830; 40 N.R. 91, refd to. [para. 9].

Armadale Communications Ltd. et al. v. Minister of Employment and Immi­gration, [1991] 3 F.C. 242; 127 N.R. 342 (F.C.A.), refd to. [para. 9].

Brennan v. Canada and Robichaud, [1984] 2 F.C. 799; 57 N.R. 116 (F.C.A.), refd to. [para. 9].

Mahabir v. Minister of Employment and Immigration, [1992] 1 F.C. 133; 137 N.R. 377 (F.C.A.), refd to. [para. 9].

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333; 25 Imm. L.R.(2d) 70 (F.C.A.), refd to. [para. 12].

Tignish Auto Parts Inc. v. Minister of National Revenue (1994), 185 N.R. 73 (F.C.A.), refd to. [para. 14].

Canada (Procureur général) v. Doucet (1993), 172 N.R. 374 (F.C.A.), refd to. [para. 16].

Martin Service Station Ltd. v. Minister of National Revenue, [1977] 2 S.C.R. 996; 9 N.R. 257, refd to. [para. 19].

Canada v. Skyline Cabs (1982) Ltd., [1986] 5 W.W.R. 16; 70 N.R. 210 (F.C.A.), refd to. [para. 19].

Visan v. Minister of National Revenue, [1983] 1 F.C. 820; 46 N.R. 494 (F.C.A.), refd to. [para. 20].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 28(1) [para. 1].

Unemployment Insurance Act, R.S.C. 1985, c. U-1, sect. 3(1)(a), sect. 3(2)(c) [para. 3].

Counsel:

H.C. Turner, for the applicant;

No one appeared for the respondent.

Solicitors of Record:

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the applicant;

MacLeod Dixon, Calgary, Alberta, for the respondent.

This application was heard in Calgary, Alberta, on January 20, 1997, before Isaac, C.J., Pratte and Stone, JJ.A., of the Federal Court of Appeal.

The following judgment was delivered for the court by Isaac, C.J., on February 3, 1997.