Citation: 2009 TCC 40
Date: 20090202
Dockets: 2007-4124(EI)
2007-4126(EI)
BETWEEN:
IDA HÉBERT and ELZÉAR G. HÉBERT,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
The Appellants are
appealing from the decisions of the Minister of National Revenue (the Minister)
made pursuant to the Employment Insurance Act (the Act). The Minister
found that Ida Hébert (the Worker) was not carrying out employment under a
contract of service and therefore did not have insurable employment within the
meaning of paragraph 5(1)(a) of the Act while she was working for Elzéar
G. Hébert (the Payor) from July 24, 2006, until October 14, 2006, (the relevant
period). The Minister also found that the employment was excluded because the
Worker and the Payor would not have entered into a similar employment contract,
if they had been dealing with each other at arm’s length.
[2]
In making his decisions
in dockets 2007-4124(EI) and 2007-4126(EI), the Minister relied on the
following presumptions of fact, set out in paragraph 6 of each Reply to the
Notice of Appeal:
[TRANSLATION]
a)
the Payor had been a fisherman for several years
and fished only lobster;
b)
the Appellant was the Payor’s spouse;
c)
the Payor was the sole proprietor and captain of
a fishing boat called “M.V.G.”;
d)
the Payor had a lobster fishing permit issued by
the Department of Fisheries and Oceans;
e)
the Payor was entitled to 100% of the proceeds
from the sale of the lobster catch;
f)
the lobster fishing season in the
St.-Louis-de-Kent region was from August 9, 2006, to October 10, 2006 (the
season);
g)
during the time at issue, the Payor had hired
two fisherman’s helpers: the Appellant and their son, Guillaume Hébert
(Guillaume);
h)
during previous fishing seasons, the Payor had
hired only one fisherman’s helper: his brother, who retired after the previous
season;
i)
neither the Appellant nor Guillaume had any
fishing experience;
j)
Guillaume operated the lobster trap hauler and
so he was the main fisherman’s helper;
k)
during the two weeks before the season started,
the Appellant’s tasks were preparatory and included: taking off the old paint,
washing and painting the boat’s hull, washing and cleaning the boat’s interior
and painting and numbering the buoys;
l)
during the season, the Appellant’s tasks onboard
the boat included: preparing the bait, bagging the bait, placing the bags in
the lobster traps, putting elastic bands over the lobster claws and preparing
meals;
m)
at the end of the season, the Appellant’s tasks
included: taking the boat out of the water, bringing in, cleaning and storing
the lobster straps, storing the buoys, cleaning and storing the cables and
preparing the boat for winter;
n)
during the two weeks preceding the season and
the week following the season, the Appellant did not work 80 hours per week;
o)
during the period at issue, no one kept track of
the Appellant’s hours;
p)
the Appellant was paid $750 per week, regardless
of how many hours she worked;
q)
the Appellant and the Payor had a joint bank
account (the family account);
r)
the family account was also used by the Payor to
handle financial transactions related to fishing;
s)
before depositing the lobster sales proceeds in
the family account, the Payor paid Guillaume directly;
t)
the Payor never remunerated the Appellant
directly;
u)
the Payor did not pay the Appellant using a
separate deposit;
v)
the Appellant’s pay never left the family
account;
w)
during the period at issue, the balance of the
family account was not high enough for the Appellant to be remunerated for the
pay days of July 29, August 5 and August 12;
x)
the Payor had only one fisherman’s helper from
September 17, 2006, to October 7, 2006;
y)
the Appellant did not work for the Payor between
September 17, 2006, and October 7, 2006;
z)
the Appellant needed 860 insurable hours in
order to be entitled to employment insurance benefits;
aa)
the Record of Employment issued by the Payor
gave the Appellant exactly 860 insurable hours;
bb)
according to the Payor, the Appellant was paid a
total of $9,000; and
cc)
the Appellant did not work all the hours and did
not receive all the remuneration indicated on the Record of Employment.
[3]
The Appellants
testified. Jeremy Cook, the Appellants’ accountant, also testified in support
of their position. However, Katherine Elizabeth Chopin, the Appeals Officer
acting in this matter, testified in support of the Respondent’s position.
Payor’s testimony
[4]
The Payor explained the
reason he hired his son and the Worker as fisherman’s helpers despite their
inexperience during the relevant period: in the spring of 2006 and throughout
the relevant period, he suffered from back aches, which prevented him from
carrying out any task requiring even the slightest amount of physical effort.
These back aches prompted him, starting in early spring 2006 and until the end
of June 2006, to try to sell his boat. His sales efforts were unsuccessful.
He had debts to pay, and as a result, he had no choice but to operate his
boat. The decision to fish with his boat was made a few weeks before the start
of the lobster fishing season and it was too late to hire fisherman’s helpers.
As a result, he had no choice but to hire his son and the Worker as fisherman’s
helpers, who, I wish to point out again, had little experience in this regard.
[5]
Moreover, the Payor
testified that at the end of each week during the relevant period, he marked
the number of hours worked by the Worker on a sheet of paper. He added that
submitting this as evidence would be impossible as the paper had been lost.
[6]
The Payor testified
that he paid the Worker in cash for the work she did during the relevant
period. The Payor explained that he handed actual cash to the Worker, which
came from the following sources:
i)
cash withdrawals from the joint bank account he
had with the Worker (the family account). It must be pointed out that the Payor
was not able to specify the amounts or dates of the withdrawals made for this
purpose;
ii)
cash withdrawals made with his credit card;
iii)
cash advances the buyer of his lobster catches
granted him at the start of the fishing season;
iv)
cash in his possession from other sources.
It must immediately be pointed out that when
discussing the Worker’s remuneration, the Payor was at best vague, imprecise
and difficult to understand.
Mr. Cook’s and the Worker’s testimony
[7]
The Worker’s testimony
was essentially the same as the Payor’s. I note that the Worker’s testimony
with respect to her remuneration was just as vague, imprecise and sometimes
difficult to understand as the Payor’s. Moreover, Mr. Cook’s testimony
revealed little other than that the Payor’s business had a gross revenue of
$31,000 and a loss of about $4,000 in 2006. Mr. Cook also explained that the
salary allegedly paid to the Worker was recorded as an operating expenditure in
the income statement of the Payor’s business for the year 2006.
Katherine Elizabeth Chopin’s testimony
[8]
From Ms. Chopin’s
testimony, I learned mainly that she sent each of the Appellants a
questionnaire that they both completed and returned to her. The questions and
answers on these questionnaires that addressed the Worker’s remuneration should
be cited:
(questions and answers Exhibit I-4)
[TRANSLATION]
18. According to the information in the file, you were never paid
directly. Instead, your pay was deposited into the Payor’s bank account. Is
this correct?
A: Yes, I was never paid directly. My pay was deposited into our
personal account.
19. It is indicated that you could withdraw money from the Payor’s
account using an automated banking machine as needed. Is this correct?
A: Yes.
a) If yes, how did you establish that the money you
were withdrawing was your pay and not family money withdrawn to handle
household expenses?
A: For my personal needs and household expenses, electricity,
satellite, groceries, clothing, telephone, etc.
b) Did you provide the Payor with receipts when you
withdrew your pay from the account? (If yes, please submit them.)
A: No.
c) Please provide proof that you received your full
pay.
A: No, no proof.
(questions and answers Exhibit I-5)
[TRANSLATION]
19. According to the information in the file, the Worker was never
directly paid. Instead, her pay was deposited directly into the Payor’s
account. Is this correct?
A: Yes, the pay was deposited into our personal account.
20. It is indicated that the Worker could withdraw money from the
Payor’s account using an automated banking machine as needed. Is this correct?
A: Yes.
a) If yes, how did you establish that the money she was
withdrawing from the account was her pay or if she was using it for household
expenses?
A: For household and personal expenses.
b) Did the Worker give you receipts when she withdrew
her pay from your bank account? (If yes, please submit them.)
A: No.
c) Please provide proof that the Worker received her
full pay.
A:
Analysis and conclusion
[9]
The Appellants had to
show that there was a contract of service between the Payor and the Worker. To
do so, they had to show, among other things, that the Worker was paid for the
work she did. In fact, a contract of service cannot exist without remuneration
for the work completed.
[10]
The Appellants’
evidence in this regard relied essentially on their testimony, which I found to
be vague and imprecise and sometimes incomprehensible. Their testimony was not
supported by sufficient documentary evidence, such as the Payor’s credit card
statements, pertinent bank statements from the family account and sufficient
written evidence of the advances granted by the Payor’s buyer. The Appellants
were able to provide this evidence. They did not do so. I infer from this
that this evidence would not have been favourable to their case. Moreover, their
testimony was contradicted by the documents (Exhibits I-4 and I-5) submitted as
evidence by the Respondent. The Appellants were not able to sufficiently
explain the contradictions. The Appellants simply did not satisfy me that the
Payor had paid the Worker for the work that was done.
[11]
For these reasons, the
appeals are dismissed.
Signed at Ottawa, Canada, this 2nd day of February
2009.
“Paul Bédard”
Translation
certified true
on
this 17th day of March 2009.
Bella Lewkowicz, Translator
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