Date: 20020913
Docket: 2002-1986(EI)
BETWEEN:
SURINDER KHUNKHUN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
REASONS FOR JUDGMENT
Miller, J.
[1] Surinder Khunkhun claimed she
worked as an orchard worker during the summer and fall of 2000
(July 1 to October 21) to the extent of 961.5 insurable hours.
The Respondent decided that Ms. Khunkhun was not employed in an
insurable employment during that period at all. This case is
entirely a matter of credibility. Did Ms. Khunkhun work 961.5
hours as an orchard worker in 2000?
[2] I have some difficulty in fully
evaluating the evidence of the Appellant's witnesses as all
three provided their evidence through an interpreter. While I
appreciate the interpreter was doing his best, the reaction of
counsel for the Respondent, who understood some Punjabi, and the
uninterrupted chats between the interpreter and the witness
(despite repeated requests that those conversations be
interpreted) left me with concerns as to whether the witnesses
did or did not understand relatively straightforward questions,
whether the questions were interpreted accurately, or whether the
witnesses were being intentionally evasive. This is the more
problematic given it is the very credibility of the
Appellant's witnesses which should be determinative of the
matter.
[3] Ms. Khunkhun testified that she
worked for Surjit Nagra, her brother-in-law, as an orchard worker
from July to October in 2000. She claimed she worked six days a
week from 7:00 a.m. to 5:30 p.m. with a one-half hour break for
lunch. She did not elaborate in any detail as to the exact nature
of her work.
[4] She recalled missing only one day
of work to visit her physician during the period in question.
When asked about work stoppage due to weather, she responded it
simply meant the workers just started later in the day. She
indicated she did not know most of the other workers' names,
but simply called them brother or sister. She later provided two
names, one of whom was her sister.
[5] Ms. Khunkhun stated that she
received $10 an hour. Her Record of Employment (ROE) for 2000
indicated 961.5 hours of work at a rate of $10 per hour. She
personally did not keep track of her hours and could not remember
what she worked in her last week of work in 2000. She suggested
that her husband keeps track of her hours, though he was not
produced as a witness. She acknowledged she also received
compensation on a piece rate, but offered no explanation why this
was not reflected in her ROE.
[6] Two of the Respondent's
witnesses, Mr. Malik from Canada Customs and Revenue Agency and
Ms. Bansal from Human Resources Development Canada (HRDC) were
members of what is called a "farm team", which conducts
investigation into orchard operations for purposes of ensuring
compliance with employment standards legislation among other
responsibilities. Mr. Malik visited Mr. Nagra's orchard as
part of the farm team on July 5, 2000 and Ms. Bansal on September
25, 2000. Both stated that the team interviewed all workers
working at those times, and on neither occasion was Ms. Khunkhun
present. Ms. Khunkhun's response was that she was in a
different part of the orchard. Given the thoroughness of the farm
team's investigation process, I find that Ms. Khunkhun
was not in fact present at the orchard at the time of these
visits.
[7] Mr. Nagra issued four cheques made
out to Ms. Khunkhun totalling $7,426.36; two are dated October
24, 2000 for $2,141.70 and $1,901.87 and two were dated October
29 for $1,549 and $1,833.79. The first two were negotiated
October 26 and the second two October 27, 2000. Canada Trust
confirmed by letter dated November 14, 2001, that it deposited to
Ms. Khunkhun's joint account on October 27, 2000, the amounts
of $1,633.79 and $1,549. Bank records could not verify deposits
of the other two cheques, though the reverse of the cheques
suggested a deposit to a British Columbia Central Credit Union
account. As to why she only received payment all at once at the
end of October, Ms. Khunkhun responded that she only got paid
when Mr. Nagra got paid. Ms. Bansal from HRDC confirmed that
this was one of the practices the farm team was looking into in
their investigations.
[8] The Appellant's other two
witnesses, Mr. and Mrs. Bains, were both orchard workers at Mr.
Nagra's farm. They were present at the time of the farm team
visits in July and September. They both testified they worked
with the Appellant for the last two and one-half years. Mr. Bains
testified he was often simply called driver and not by his name,
as that was his full occupation.
[9] A compliance auditor, Mr. Drebit,
gave evidence that he had sent Mr. Nagra and Ms. Khunkhun a
questionnaire. He followed up with Ms. Khunkhun as he did
not feel he had enough information, as there was no confirmation
that she actually got paid, and no evidence of time sheets. In
conversation with Ms. Khunkhun, he was led to believe that she
had lost copies of her own time records. He also stated that Ms.
Khunkhun had confirmed she was present at the orchard at the time
of the farm team visits.
[10] Finally, there was evidence in the form
of pay stubs for the 2001 year for August to November indicating
both hourly rate and piece rate remuneration for Ms. Khunkhun.
There were corresponding cheques dated July 20, August 10,
September 13, October 16 and November 7, 2001. All the cheques
appear to have been negotiated on November 9. No explanation was
provided for this delay.
[11] Mr. Nagra, while present in Court, did
not give evidence.
Analysis
[12] Was Ms. Khunkhun employed as an orchard
worker on Mr. Nagra's farm for 961.5 hours in 2000? The
Respondent's position is no, she was not. According to the
Respondent, the ROE for 2000 and four October cheques were
nothing more than a sham to give the appearance that the
Appellant worked. The ROE was inconsistent with the evidence Ms.
Khunkhun was paid partially by piece work. Ms. Khunkhun was not
being truthful in suggesting she was present at the farm team
visits. The cheques were made out at the same time. There is no
evidence that two of them were ever deposited. Ms. Khunkhun could
not verify how many hours she worked, nor how many days she
missed. These are all factors that work against her position of
961.5 hours of insurable employment.
[13] Are there factors that support her
position? Her somewhat evasive answers about time actually worked
gave little support to the figure of 961.5 hours; however, they
still suggested to me that she has worked as an orchard worker.
The pay stubs for 2001 provided some evidence of that. They also
support the breakdown between piece work and hourly wages,
albeit for the 2001 year and not the 2000 year. Another
factor in support of Ms. Khunkhun's position is that Canada
Trust's confirmation of the two deposits clearly represented
two of the October 2000 cheques. I am satisfied that workers
might not be paid until the end of the season. This does appear
to be common practice. Finally, Mr. and Mrs. Bains supported
Ms. Khunkhun's position as an orchard worker in 2000, but
provided no evidence as to her hours.
[14] What should I take from Mr. Nagra's
presence but failure to testify? Is there a negative inference
contrary to Ms. Khunkhun's position to be drawn? This was not
suggested by the Respondent. Was he there in some way to
intimidate? Again, I cannot say, but I do find it curious.
Presumably, he did not want to give evidence and certainly nobody
wanted to force him to.
[15] My overall impression of Ms. Khunkhun
and Mr. and Mrs. Bains was that they exhibited a nervous,
cautious almost fearful demeanour. This leads me to the
conclusion that I have not heard the whole story of Mr. Nagra and
his workers. I believe there are likely some liberties being
taken with the truth of Ms. Khunkhun's employment. There
is simply more going on then I can fully ascertain. I do not,
however, believe that the whole thing is a sham as the Respondent
would have me believe. Yes, there were inconsistencies; yes,
testimony was at time vague; and yes, I believe Ms. Khunkhun lied
about being present at the farm team visits. However, testimony
was also supportive of Ms. Khunkhun's working and
receiving some payment for that work. The truth I suggest lies
somewhere between the sham suggested by the Respondent and the
961.5 hours suggested by the Appellant.
[16] Having reached that conclusion, I am
mindful of Judge Margeson's comments in Narang v.
M.N.R.,[1] a case similar to this, where he
stated:
Certainly if the Court should find that there was a "sham
transaction" then there was no insurable employment, but the
Respondent has no burden to establish that there was a "sham
transaction".
The burden is on the Appellant and the Intervenors to
establish on a balance of probabilities that there was work
performed under a contract of service, that the workers worked
the periods of time set out in the ROEs and that they were paid
the amounts referred to therein.
I find that on the balance of probabilities, Ms. Khunkhun
performed work under a contract of service for some period during
2000. However, I am not convinced that she worked the period of
time set out in the ROE, nor that she was paid the full amount
referred to therein. I do find that she received the payments of
two of the October 2000 cheques totalling $3,383.79. Based on the
Respondent's assumptions of Mr. Nagra's deductions on Ms.
Khunkhun's T4 slip, this would represent a gross pay of
approximately $4,380. At an hourly rate of $10 this suggests 438
hours worked. While I recognize that this is a rough and ready
approach to the problem, I am prepared to allow the appeal to
this extent for the following reasons.
[17] I am not satisfied that it is the
worker who is wholly at fault here. As I have indicated, I
suspect something is indeed rotten in the orchard business,
though I am not sure exactly what, but to penalize the worker
alone, the lowest spectrum of the fruit industry, does not seem
just. My impression is that these seasonal workers, many who do
not understand English, can be subjected to questionable labour
tactics. Presumably, this is why these farm teams in British
Columbia go to orchards, to in part educate the workers about
their rights and responsibilities. The worker is wrong to fall
into any trap for purported personal gain which involves
deceiving the authorities. That is not tolerable. Neither is it
acceptable that the most vulnerable bear an uneven burden and
responsibility when deceit is uncovered. I believe Ms. Khunkhun
worked for Mr. Nagra in 2000, but the hours reported by Mr. Nagra
on the ROE are inaccurate. I am not prepared to reduce them to
zero with the consequential adverse impact on Ms. Khunkhun.
Neither am I prepared to allow Ms. Khunkhun's claim of having
worked 961.5 hours based on the evidence she presented. I allow
the appeal and refer the matter back to the Minister on the basis
that Ms. Khunkhun worked 438 hours of insurable employment
in 2000.
Signed
at Ottawa, Canada, this 13th day of September, 2002.
J.T.C.C
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