Gendron v. M.N.R. (April 2, 2019 – 2019 TCC 100, Monaghan J.).
Précis: During the period under appeal Mr. Gendron worked for Shell Nederland Verkoopmaatschappij BV (“SNV”) in the Netherlands. He was seconded from his prior employer, Shell Canada Ltd. (“Shell”). The test for insurable employment outside Canada was two-fold:
- Was the employment insurable employment under the laws of the Netherlands, the place where the employment took place?
- Was Mr. Gendron’s employment in the Netherlands by an employer who is resident or has a place of business in Canada?
If the answer to Question 1 was “Yes” or if the answer to Question 2 was “No”, Mr. Gendron was not engaged in insurable employment for the purposes of the Employment Insurance Act.
The Tax Court found that Mr. Gendron, on the evidence, would have been entitled to benefits under the laws of the Netherlands while working for SNV thus answering Question 1 as “Yes”. Accordingly it was not necessary to answer Question 2 and the Court declined to do so.
Thus Mr. Gendron’s appeal was dismissed. Each party was directed to bear their own costs.
Decision: This is rather an oddball area of EI and I cannot recall another recent decision on the point. In essence Justice Monaghan just relied upon evidence from a letter written by the global tax group of Shell International B.V. (the “Letter”). The Court found that the Letter confirmed that Mr. Gendron’s employment was insurable in the Netherlands:
 The evidence suggests that Dutch legislation draws a similar distinction. The Letter states that during the relevant period Mr. Gendron is “covered by the Dutch social security rules in accordance with Dutch legislation”. This is consistent with a conclusion that his employment in the Netherlands is insurable employment under Dutch law. Contributions were made to the program by SNV because of his employment, also supporting the conclusion that his employment was insurable under the Dutch law.
 Benefit entitlement in the Netherlands, as in Canada, is based on another set of conditions as described in the Letter. One of those is focused on the number of weeks worked, a condition similar to one of the Canadian qualifications. Another is availability to work (presumably in the Netherlands, although the Letter does not state that). I accept that, having terminated his secondment, Denis Gendron may have been obliged to leave the Netherlands and so was unavailable to work there, but the evidence is that the requirement that he be available for work goes to benefit entitlement, not insurability.
 Therefore, in my view, the first question must be answered yes. That is, I have determined that Mr. Gendron’s employment in the Netherlands was insurable employment under the laws of the Netherlands, the place where the employment took place. Accordingly, he does not meet the condition in Regulation 5(d) and, on that basis, his appeal must be dismissed.
In the result the appeal was dismissed. Each party was directed to bear their own costs.