Worker’s employment was not ‘insurable’ as it was dependent on temporary work visa

Worker worked under contract of employment with payer subsidiary of Netherlands corporation, which had business establishment in Massachusetts, USA, and maintained business presence in Quebec, Ontario and British Columbia. Worker was resident of Canada and maintained bank accounts, insurance policies, professional association dues and residence in Quebec, and filed income tax returns in Canada. Worker was covered by payer’s US pension and benefits plan, paid social security taxes in US dollars withheld from source, and paid state income and US federal taxes. Worker’s employment was terminated in July 2017 and worker returned to Canada. Worker’s claim for employment insurance was approved and he received total benefits of $16,410 for period from August 2017 to March 2018. Worker was informed by CPP/EI Division of Canada Revenue Agency (CRA) that his employment was not insurable and that he was required to reimburse benefits received. Worker application for unemployment benefits in state of Massachusetts was denied and then appeal from that decision was also denied. Minister of National Revenue confirmed ruling by CRA with respect to worker’s insurability under Employment Insurance Act for period from December 14, 2015 to July 31, 2017. Minister found that employment was excluded from insurable employment within meaning of s. 5(1)(a) of Act and ss. 5 and 7 of Employment Insurance Regulations. Worker appealed. Appeal allowed. There was no duplication in this instance, since worker was not required to make employment insurance contributions in Canada and there would be no duplication of benefits if he received them in Canada as worker was not entitled to such benefits in USA. Worker resided in Canada, payer had place of business in Canada and employment would be insurable if it were in Canada. Section 5(d) required that employment was not insurable employment under laws of country in which it took place. Worker’s employment with payer, dependent as it was on his temporary work visa, was not in fact “insurable employment” and fact that he was later denied benefits in state simply confirmed this.

Herta v. M.N.R. (2019), 2019 CarswellNat 1719, 2019 CarswellNat 1998, 2019 TCC 113, 2019 CCI 113, Guy R. Smith J. (T.C.C. [Employment Insurance]).

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