Canada ( Attorney General ) v. Sirois
A-240-98
Desjardins J.A.
19/4/99
11 pp.
Application for judicial review of Tax Court of Canada decision finding defendant did not hold insurable employment within meaning of Unemployment Insurance Act, s. 3(1)(a)-Until December 20, 1995, defendant acting as coordinator of nursing care for Centre d'Accueil Sénécal/Les Ateliers Le Cap-Defendant's working conditions governed by Regulation respecting certain conditions of employment of officers of regional councils and of health and social services establishments, adopted pursuant to Act respecting Health Services and Social Services-On April 27, 1994, following administrative reorganization, notice of intention to abolish position served on defendant pursuant to Regulation, s. 130, requiring defendant to make election between three options-Defendant exercising third option, preretirement leave and retirement indemnity, and concluding agreement with payer giving effect to option-Under agreement, defendant's pre-retirement leave beginning on December 20, 1995, and ending on December 20, 2000, date defendant undertaking to take retirement-During preretirement period, unemployment insurance premiums collected from defendant's salary-Minister of National Revenue deciding defendant had to pay premiums as employer-employee relationship continued to exist between defendant and payer during period in question-Trial Judge erred in concluding no contract of service existed on ground defendant no longer providing any work-Courts have recognized that even if employee no longer working but still receiving money from employer, does not necessarily follow that contract of service no longer exists between employee and employer-Court has to consider whether employment relationship broken-Having elected "pre-retirement leave" option mentioned in Regulation, s. 131, defendant placed on reserve within meaning of Regulation, s. 1-Under Regulation, no breach in relationship of employment between employer and officer placed on reserve-Even if defendant no longer had to return to work, employment relationship between defendant and payer not broken-In circumstances, defendant still held insurable employment-Application allowed-Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 3(1)(a)-An Act respecting Health Services and Social Services, R.S.Q., c. S-5, s. 154-Regulation respecting certain conditions of employment of officers of regional councils and of health and social services establishments, O.C. 988-91, ss. 1, 130, 131.