Citation: 2008TCC347
Date: 20080612
Docket: 2007-3353(EI)
BETWEEN:
PARKASH KAUR CHAHAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Boyle, J.
[1]
Mrs. Chahal
immigrated to Canada from India in 2000 when she was in her late sixties.
She does not speak English. She can neither read nor write in any language; nor
is she numerate. She was a farmworker in India.
She is a seasonal berry picker in British Columbia.
[2]
For the years in
question, 2005 and 2006, she has been denied Employment Insurance benefits. The
issue is whether, and the extent to which, Mrs. Chahal was helped in her
work by her husband and her son or others. Mrs. Chahal testified at the
hearing that she was not helped by her husband or by anyone else although there
is evidence of earlier statements of hers to the effect that she had been helped
at times by her husband and on one occasion by her son.
[3]
Mrs. Chahal’s 2005
Report of Earnings as originally filed showed insurable earnings paid to her of
$8,190 and insurable hours of 840. It had been prepared and filed by ADP, her
employer’s outsourced payroll service provider. There is no dispute regarding
whether she received $8,190, although the Crown questions whether it was all
paid to her for her own work. There is also no dispute that her 2005 hourly
rate of pay was $8.75, although the Crown suggests there may have been some
relationship between the number of hours for which she was paid and the number
of pounds of berries she picked. Mrs. Chahal’s ADP payslips clearly show
her hourly rate is $8.75. Nonetheless, it is apparent and obvious that ADP
prepared the ROE using a $9.75 hourly rate instead of the $8.75 rate. When a
revised ROE was filed showing insurable earnings unchanged at $8,190 and
reflecting 936 insurable hours, being the correct number of hours calculated at
an $8.75 rate of pay, the ROE, and presumably Mrs. Chahal’s EI
application, was referred to the Integrity Division of Human Resources and
Skills Development Canada. One of the reasons for this is that the revision to
the ROE was material because Mrs. Chahal needed 910 hours of
insurable employment to qualify for EI benefits in 2005.
[4]
An HRSDC EI Integrity
Division officer testified regarding her review of the revised ROE and Mrs.
Chahal’s EI application. After several discussions with Mrs. Chahal, her
employer and the driver who picked her up each morning and dropped her off each
evening, the EI officer was concerned because she had received somewhat
inconsistent answers. In particular, there were different answers regarding
whether, and the extent to which, Mrs. Chahal may have been helped in her
work by her husband or her son. The EI officer’s conclusion was that the
revised ROE was suspicious because of Mrs. Chahal’s statement that her
husband had helped her. She referred Mrs. Chahal’s file on to Canada
Revenue Agency’s CPP/EI Rulings for a ruling on her insurable employment,
insurable earnings and insurable hours. The EI officer’s conclusion in this
regard certainly appears to be reasonable based upon the information available
to her and about which she testified.
[5]
However, I pause to
state that I do not accept as evidence worthy of any weight in this proceeding
the EI officer’s summary of what she was told by persons who did not testify at
the two-day trial of this matter. Importantly, this includes her hearsay
evidence and notes of her discussions with the employer and the employer’s
driver. I will have more to say later about the failure of either side to call
any of these people or explain their absence, and I will also separately
address below essentially similar evidence and notes from the CRA Rulings Officer
and the CRA Appeals Officer to which I do extend some weight. I found that the
EI Integrity officer was defensive and combative in her testimony and that she
was condescending in her argumentative attitude to Mrs. Chahal’s counsel,
Mr. Pabla. Since she appeared clearly to want to defend her decision
throughout her testimony, as though her decision was on trial or being
reviewed, I am concerned that this may also have been reflected in her notes as
well. I am not suggesting this witness said anything untruthful, I am merely
sufficiently concerned about its completeness to not be comfortable relying on
her notes or recollection of what others not present said to her. I raised
these concerns with this witness and Crown counsel in the course of her
testimony. Further, no notes of any conversations or interviews or meetings
with anyone other than Mrs. Chahal were put in evidence by this or any
other Crown witness although I understand such notes were taken.
[6]
The CRA EI/CPP Rulings Officer
explained why she adjusted Mrs. Chahal’s insurable earnings to $4,900 from
$8,190 for 2005, from $8,070 to $4,707 for 2006, and her insurable hours from
936 to 560 (not 840) for 2005 and from 900 to 525 for 2006.
[7]
The Rulings Officer
said she had been asked to determine Mrs. Chahal’s actual hours and
earnings because it had been “suggested that she had assistance from her
husband and her son to increase the hours”. On the important issue of the
extent to which Mrs. Chahal was helped by her husband Gurpal Chahal
or her son Balbir Chahal, the Rulings Officer said that, in addition to
reviewing the EI officer’s file, she was told in a conversation with
Mrs. Chahal that her husband had helped pick but did not pick with her all
the time. Mrs. Chahal also said that her son had helped her picked on only
one occasion at the end of the day on one of the few days he came to pick her
up. The Rulings Officer also said she spoke with the driver who said that
sometimes he picked up both Mrs. Chahal and her husband.
[8]
The Appeals Officer’s
notes made record of a telephone conversation she conducted in Punjabi with
Mrs. Chahal. These reflect that Mrs. Chahal twice said that
sometimes, four to five times only, her husband worked in 2005 and not at all in
2006. She also was told Gurpal did not work much and did not pick all day but
sat down. Mrs. Chahal also said his berries were not counted with hers,
and that her ROE only showed her earnings and hours in 2005 and 2006.
[9]
When the Rulings Officer
reviewed with Mrs. Chahal her answers from a meeting with the EI Integrity
officer, the Rulings Officer’s own notes confirmed Mrs. Chahal said no one
helped picked her berries in 2006 and that her husband helped her maybe four or
five times in 2005. Mrs. Chahal also told her that her son helped her for
about one hour once when he came to pick her up at the end of the day.
[10]
While the CRA Rulings
Officer’s notes say she ended the conversation by saying she needed to speak
with the employer, there were no notes of any such conversation or meeting by
her with the employer or with anyone else. The Rulings Officer said she was not
able to speak to the employer at the time because he was attending his sister’s
funeral in India. There was no evidence he was ever spoken
to upon his return.
[11]
The Rulings Officer did
testify she had read file notes the EI Integrity officer had made of a
conversation held with the employer. These notes were not put in evidence by
either of these Crown witnesses though it was suggested to them by the
Appellant’s counsel and the Court this may prove helpful. In the circumstances,
and given my comments about the EI officer’s testimony and notes above, I cannot
accord any weight to this double hearsay relied on by the Rulings Officer. For
the record, however, I should add that it does not even suggest that
Mrs. Chahal did not work each day recorded or that she in fact had
significant help from her husband.
[12]
The Rulings Officer
testified she had spoken with the employer’s driver, who picked up
Mrs. Chahal each morning and dropped her off each evening, who told her
“sometimes” he would pick both of them up. No notes of this discussion were put
in evidence. The driver was not called to testify.
[13]
The Rulings Officer
based her ruling as follows. She was satisfied Mrs. Chahal worked for her
employer. She could not apply Regulation 9.1 of the EI legislation
because there was no “actual proof” of the hours that Mrs. Chahal worked
because “we figured she did not pick the full amount of berries” and “she had
help picking the berries”. Implicitly, the officer did not find the ROE,
payslips, the employer’s daily hour logs for all employees, the employer’s
seasonal day log for Mrs. Chahal, or the ADP payroll summary sufficient proof.
She therefore used Regulation 10 where, according to the officer, the
maximum hours permitted are 35 hours per week. She was satisfied
Mrs. Chahal worked hard for her employer and worked full time so she
applied the $8.75 rate for 2005 (and a $9 rate for 2006) to the sixteen week
2005 season Mrs. Chahal worked. This was a simple arithmetic exercise for
CRA. This was not tested against the hours Mrs. Chahal was picked up and
dropped off daily, nor tested as to whether it was reasonable to think her
husband and her son worked to the extent reflected by the large downward
adjustments which resulted.
[14]
In the Appeals
Officer’s words, “So, instead of having to believe what the records show, that
she worked ten hours a day, we went over to the other side of
Regulation 10 saying, ‘We’ll give her a maximum of 35 hours per week.’ ”
[15]
There was no evidence
of Mrs. Chahal ever doing anything else but work while she was at her
employer’s. There was evidence put in by both parties that her husband was
ailing, could hardly walk and could not see very well, having had eye surgery
in 2005. The Crown’s assumptions included that Mrs. Chahal was paid by the
hour at the rate mentioned. While the Crown suggested that maybe the pickers,
including Mrs. Chahal, were paid based on weight not by the hour, because their
daily pickings were weighed, and perhaps weight was somehow converted into
hours, there was no denial she was paid by the hour, no credible or persuasive
evidence she was not but was paid by the weight of berries picked, no evidence
of any conversion rate for pounds of berries to hours of work, indeed no
evidence from the Crown of how many pounds a picker might pick in a given time,
etc.
[16]
The Rulings Officer
acknowledged in cross-examination that CRA’s concern about berry pickers’
pickings being converted to hours by employers exists with the industry as a whole
and an employer’s conversion is accepted unless it appears from the information
in the file to be wrong. In this case, the file indicated some of the berries
may not have been picked by Mrs. Chahal, hence these proceedings.
[17]
Mrs. Chahal
appealed the ruling. The Crown also called the CRA Appeals Officer. The CRA
Appeals Officer’s notes were also put in evidence. Her notes of this call are an
adequate seven lines long. Those notes evidence Mrs. Chahal also told the
Appeals Officer that “husband helped once and [sic] a while” in 2005 and
2006. There is no mention of the son ever helping.
[18]
The CRA Appeals Officer
has a page of notes of her conversation with the employer. He told her that Mr. Chahal
had helped out Mrs. Chahal in 2005 and 2006 and that he was very old and
could barely walk. There is no mention of the frequency of the husband’s help.
There is no mention of the son whatsoever.
[19]
The CRA Appeals Officer
confirmed the ruling because she concluded Mrs. Chahal had help from her
husband and her son. She obviously agreed the CRA Rulings Officer had properly
applied Regulation 10 and allowed 35 hours per week. She did not
appear to test the insurable hours or earnings in the ruling against the
totality of the evidence. She did not make any conclusion regarding the extent
of earnings or hours of the husband’s contribution even though the result of
the ruling’s arithmetical application of a 35-hour week to someone who went to
work from 7 a.m. to 7 p.m. six and, sometimes, seven days a week
had the effect of almost halving her earnings and her hours.
I. Law
[20]
The
relevant provisions of the Employment Insurance Act and Regulations
are as follows:
Employment Insurance Act
Hours of insurable
employment
55(1)
The Commission may, with the approval of the Governor in Council, make
regulations for establishing how many hours of insurable employment a person
has, including regulations providing that persons whose earnings are not paid
on an hourly basis are deemed to have hours of insurable employment as
established in accordance with the regulations.
Alternative
methods
(2) If the Commission
considers that it is not possible to apply the provisions of the regulations,
it may authorize an alternative method of establishing how many hours of
insurable employment a person has.
Alteration or
rescission of authorization
(3) The Commission may at
any time alter the authorized method or rescind the authorization, subject to
any conditions that it considers appropriate.
Agreement to
provide alternative methods
(4) The Commission may enter
into agreements with employers or employees to provide for alternative methods
of establishing how many hours of insurable employment persons have and the
Commission may at any time rescind the agreements.
Insurable Earnings and Collection of Premiums
Regulations
Part I — Insurable Earnings
Earnings from Insurable Employment
2.(1) For the purposes of the definition
“insurable earnings” in subsection 2(1) of the Act and for the purposes of
these Regulations, the total amount of earnings that an insured person has from
insurable employment is
(a) the total of all amounts,
whether wholly or partly pecuniary, received or enjoyed by the insured person
that are paid to the person by the person’s employer in respect of that
employment, and
(b) the amount of any gratuities
that the insured person is required to declare to the person’s employer under
provincial legislation.
Employment
Insurance Regulations
Part I — Unemployment Benefits
Hours of Insurable
Employment — Methods of Determination
9.1 Where a person's earnings are paid on an hourly
basis, the person is considered to have worked in insurable employment for the
number of hours that the person actually worked and for which the person was
remunerated.
9.2 Subject to section 10, where a person's earnings or a portion of a
person's earnings for a period of insurable employment remains unpaid for the
reasons described in subsection 2(2) of the Insurable Earnings and Collection
of Premiums Regulations, the person is deemed to have worked in insurable
employment for the number of hours that the person actually worked in the
period, whether or not the person was remunerated.
10.(1) Where a person's earnings are not paid on an hourly basis but the
employer provides evidence of the number of hours that the person actually
worked in the period of employment and for which the person was remunerated,
the person is deemed to have worked that number of hours in insurable
employment.
(2) Except where subsection (1) and
section 9.1 apply, if the employer cannot establish with certainty the actual
number of hours of work performed by a worker or by a group of workers and for
which they were remunerated, the employer and the worker or group of workers
may, subject to subsection (3) and as is reasonable in the circumstances, agree
on the number of hours of work that would normally be required to gain the
earnings referred to in subsection (1), and, where they do so, each worker is
deemed to have worked that number of hours in insurable employment.
(3) Where the number of hours agreed to
by the employer and the worker or group of workers under subsection (2) is not
reasonable or no agreement can be reached, each worker is deemed to have worked
the number of hours in insurable employment established by the Minister of
National Revenue, based on an examination of the terms and conditions of the
employment and a comparison with the number of hours normally worked by workers
performing similar tasks or functions in similar occupations and industries.
(4) Except where subsection (1) and
section 9.1 apply, where a person's actual hours of insurable employment in the
period of employment are not known or ascertainable by the employer, the
person, subject to subsection (5), is deemed to have worked, during the period
of employment, the number of hours in insurable employment obtained by dividing
the total earnings for the period of employment by the minimum wage applicable,
on January 1 of the year in which the earnings were payable, in the province
where the work was performed.
(5) In the absence of evidence indicating
that overtime or excess hours were worked, the maximum number of hours of
insurable employment which a person is deemed to have worked where the number
of hours is calculated in accordance with subsection (4) is seven hours per day
up to an overall maximum of 35 hours per week.
(6) Subsections (1) to (5) are subject to
section 10.1.
II. Analysis
[21]
It is clear from
section 55 that the computation of insurable hours according to Regulations 10(2)
through (5) is not determinative and the question is to be determined by
reference to the actual hours. Chief Justice Bowman of the Court in Chisholm
v. M.N.R., [2001] T.C.J. No. 238 (QL) wrote of Regulation 10 as
follows:
15 Finally,
I come to section 10 of the Regulations. It is a regulation authorized by
section 55 of the EI Act to provide some assistance in determining how
many hours have been worked by an employee in cases where there is doubt or
lack of agreement between the employer and the employee or difficulty in
determining the number of hours worked. It clearly is not intended to
displace clear evidence of the type that we have here of the number of hours
actually worked. To say that the rules set out in section 10 of the
Regulations could prevail against the true facts would be to put a strained and
artificial construction on this subordinate legislation that would take it far
beyond what section 55 of the EI Act intended or authorized. Indeed
subsections (4) and (5) of section 10 are premised upon the actual number of
hours not being known or ascertainable, or upon there being no evidence of
excess hours. That is demonstrably not the case here.
16 I have found the decisions of Bonner J. in Franke v.
Canada, [1999] T.C.J. 645, and of Weisman D.J. in McKenna v. Canada,
[1999] T.C.J. 816, and Bylow v. Canada, [2000] T.C.J. 187, and of
Beaubier J. in Redvers Activity Centre Inc. v. Canada, [2000] T.C.J.
414, of great assistance. They support the broad, and in my view, common sense
conclusion that where there is evidence of the number of hours actually worked
there is no need to have recourse to any other method.
[Emphasis added]
[22]
Section 55 of the EI
Act, which permits the making of such Regulations, is also clear that it is
not required for the CRA to limit itself to the arithmetical application of
these Regulations.
[23]
It is also clear that
Regulation 9.1 applies to hourly rate workers where their “actual hours” worked
is known. Regulation 10(1) applies to those not paid an hourly rate such
as piece rate workers. Regulations 10(2) through (5) set out guidances to
determine actual hours for purposes of either 9.1 or 10(1).
[24]
In this case, the Crown
assumed and agrees that the worker is paid an hourly rate. However, it was not
clear to the Crown at the EI review stage or the Rulings and Appeals stages
what number of hours Mrs. Chahal actually worked and for which she was
remunerated.
[25]
It appears that even if
Mrs. Chahal were not paid on an hourly basis, Regulation 10(1) would
require evidence of the hours that person actually worked and for which she was
remunerated. So, we would have the same issue.
[26]
Regulation 10(2)
applies if neither 9.1 nor 10(1) applies. That would be the case if the worker
is not paid an hourly rate and the number of hours actually worked cannot be
established with certainty. In such a case, subsection 10(2) provides that the
employer and a worker or group of workers may agree on a number of hours that
would normally be required to gain the earnings and that number becomes the
number of insurable hours.
[27]
Regulation 10(3)
provides that where an amount agreed to by an employer and a worker or a group
of workers is not reasonable, or no agreement can be reached, each worker is
deemed to have worked the number of hours established by the Minister, based on
an examination of the terms and conditions of the employment and a comparison
of the number of hours normally worked by workers performing similar tasks or
functions in similar occupations and industries.
[28]
Regulation 10(2)
appears to be a guidance to the employer for reporting purposes and Regulation 10(3)
provides for the Minister’s right to challenge that.
[29]
Regulation 10(4)
also appears to be written primarily from the point of view of an employer
having to report. Regulation 10(4) provides that the insurable hours will
be the amount obtained by dividing the person’s total earnings by the
applicable provincial minimum wage for the year. Regulation 10(5) provides
that, unless there is evidence indicated that overtime or excess hours were
worked, the maximum number to be used for purposes of 10(4) is seven hours
per day to a maximum of 35 hours per week. While the section is apparently
written from an employer’s perspective, the Minister is not precluded from
having resort to this guidance either. Nor is the Court.
[30]
Regulations 10(2)
and (3) and Regulations 10(4) and (5) expressly only apply if neither 9.1 nor
10(1) applies. This means they only apply if the worker is not paid an hourly
rate and the number of hours actually worked cannot be determined. This is not
the case here since the Crown assumed she was paid an hourly rate and did not
even try to mount a credible case that she was paid by the pound.
[31]
Perhaps these guidances
could also be useful if Regulation 9.1 or 10(1) cannot be applied because
of a lack of adequate proof of hours actually worked.
[32]
Regulation 10(3)
would require the Minister to conduct both (i) an examination of the terms and
conditions of the employment, and (ii) a comparison with the number of
hours normally worked by workers performing similar tasks or functions in
similar occupations and industries, before establishing the number of insurable
hours. The evidence of the Crown only supports compliance with the first
requirement and it is clear that no attempt was made to satisfy the second.
Either of these requirements would logically have required some information as
to the number of pounds or flats of berries that a worker can pick in a set
period of time which may well depend upon the type of berry and the stage of
the harvest season for that berry.
[33]
In this particular case,
virtually all of the evidence indicates that overtime or excess hours were
worked in excess of seven hours per day or 35 hours per week. It
would therefore have been necessary to use such number greater than 35 that the
evidence indicates Mrs. Chahal worked. All of the evidence points to the fact
she was picked up around 7 a.m. in the morning and returned home about
7 p.m. in the evening by the employer’s driver together with other berry
pickers. There is no evidence she did anything else during that time. She
consistently said at the hearing and in her prior meetings with EI and CRA officials
that she worked six or seven days a week except when it rained. The pay
records, payslips, work logs and all of the other evidence further confirm that
by recording four to ten-hour days being worked on this basis.
[34]
Absent persuasive
evidence that she was not paid by the hour but was paid by the pound, the
number of hours she worked is unaffected by the number of hours her husband
worked. I therefore find the CRA ruling that allowed her only 35 hours per
week was entirely incorrect in the result it reached in her case.
[35]
That does not decide
the matter. I am left with the question of what were her insurable earnings and
her insurable hours.
[36]
In the circumstances of
this case, it appears to me that the most satisfactory way to determine
Mrs. Chahal’s insurable earnings and insurable hours are to first
determine her insurable earnings and then divide that by her agreed-to hourly
rate to arrive at insurable hours. In doing this, it is necessary to determine
what adjustment is required to reflect any of the earnings paid to her by ADP
and her employer that was not paid to her in respect of her employment but was
in respect of work done by her husband or her son. This approach of determining
earnings using earnings to compute hours is far more sensible then beginning
with a 35-hour maximum week and using that to determine earnings. This is amply
evidenced by the fact that the Minister’s approach has almost halved
Mrs. Chahal’s insurable earnings and insurable hours notwithstanding the
evidence does not even suggest that her husband or her son worked hard enough
to make up the difference.
[37]
I therefore begin with
the amount paid to her by her employer and ADP which is not in dispute. This
amount is $8,190 for 2005 and $8,070 for 2006. Before dividing those numbers by
the applicable hourly rate of $8.75 and $9 per hour respectively, I need to decide
what adjustment, if any, must be made to them to reflect the contribution of
her husband and her son based on the totality of the evidence. It is clear that
the CRA ruling did not undertake this exercise. The ruling’s insurable earnings
amounts of $4,900 and $4,707 were arithmetically if not arbitrarily arrived at
by dividing the hourly rate into the 35-hour maximum work week for the sixteen weeks.
Accordingly, I have no hesitation in rejecting and ignoring the insurable
earnings amount in the ruling.
[38]
At the trial, the Crown
did not put in any evidence beyond what is described above that would help in
this determination. The Crown did not have a suggested approach, theory or
number for me to consider or apply in determining the extent of
Mrs. Chahal’s husband and son’s contribution to her earnings (or to her
hours for that matter). I am therefore left to decide this based on what little
evidence I have. Mrs. Chahal testified that the amounts on the ROEs
represented her earnings and that her husband had been paid separately as a
casual worker by the pound and in accordance with the employer’s practice for
the times he worked. He did not testify and no cheque or other corroborating
evidence was produced. According to the Crown’s evidence, Mrs. Chahal had
earlier said her husband had helped her four or five times in 2005 (and on one
occasion she said this regarding 2006). The Crown’s evidence also indicated she
had said her son had on one occasion helped her pick berries at the end of the
day. In the case of her son, there is no evidence before me whether the son’s
contribution helped Mrs. Chahal to meet her quota for the day and thus ensure
her continued employment or perhaps, whether it allowed her to get paid for the
day. The consistent evidence is that Mrs. Chahal’s husband was not a well
man, barely able to walk, and had difficulty seeing.
[39]
In this case, the Crown
again seeks to rely upon the onus on the taxpayer and the Crown’s assumptions.
In this case, each and every material assumption identified by the Crown, being
assumptions (o) through (u), were the subject of evidence in Court on the
topics addressed by those assumptions. In those circumstances, the ordinary
rules of onus and persuasion apply in order that the Court may decide the case
on a balance of probabilities. That is, once the taxpayer has put in prima
facie evidence of her full-time employment and of the absence of any
material help by others, and her payslips, ROEs, logs, etc. are also in
evidence, it is up to the Crown to produce persuasive evidence in support of
its position. If an Appellant’s prima facie case is not particularly
persuasive, the Crown may not need to introduce much evidence in any event.
[40]
The Crown also sought
to have me make inferences from the fact that Mrs. Chahal did not have
either her employer or his driver attend and testify. As I pointed out at
the time, I could just as easily make adverse inferences regarding the Crown’s
failure to call these two witnesses since the evidence was clear they had
spoken with them, had made notes of the call, wanted to tell me about the
meetings but did not want to introduce the notes nor, obviously, call them as
witnesses.
[41]
The Crown also suggested
that since Mrs. Chahal testified that hours worked were recorded daily
after review by her son on a calendar, that she should have been able to
produce the calendar. To my mind, while that would have been fine evidence to
receive, it is unreasonable to expect hourly workers to necessarily retain
their calendar for years for which they have long since been paid and been able
to confirm their pay cheques and pay slips against their own tracking of hours.
[42]
The only other argument
advanced by the Crown in support of the ruling’s failure to recognize what the
evidence consistently points out were Mrs. Chahal’s hours of work during
the berry season, was the possibility that Mrs. Chahal was not in fact
paid by the hour but was paid based upon the weight of berries picked which was
then somehow converted to an hour equivalence by agreement between her employer
and herself. This would be contrary to the Crown’s assumptions that she was
paid by and worked by the hour. There would have been a significant onus on
them to produce such evidence given that did not form the basis of the ruling
appealed from or the assumptions pleaded. Importantly, there was virtually no
evidence led by the Crown to support this possibility. The fact that several
government officials believe this may have been the case because they cannot
imagine why else her daily pickings were weighed and measured against a
possible quota, of which there is also no evidence, falls far short of what
would be needed. In this case, and based upon the evidence introduced before
me, the Crown cannot be successful with such a mere suggestion or supposition.
Obviously, if this possibility and belief were in fact demonstrated to be
correct, the Regulations 9 and 10 analysis would have been different and
the result may well be different depending upon the reasonableness of the
weight to hour conversion rate.
[43]
In these circumstances,
I cannot accept that the son’s contribution at the end of one day in assisting
his mother with her quota (whatever that means in this case) contributed in any
relevant way to her insurable earnings or hours. Employers of hourly and
salaried employees always monitor their employees’ performance even though they
are not paid on a piece rate basis. In the case of berry pickers, the weight of
berries is an obvious productivity or efficiency measure for employers to
track. The son’s contribution may have done no more than help his mother keep
her job for the future by meeting picking targets. That he did this once on one
of the few days he came to pick her up at the end of the day instead of her
taking the bus, it is hardly surprising. Indeed it would be a natural and
normal occurrence amongst friends or family in comparable circumstances. If
there was anything more to it, I certainly did not see any evidence of it.
[44]
I do not believe that,
on what evidence there is before me, Mrs. Chahal was never aided by her
husband. However, even on the worst view of the available and accepted evidence
described above, her husband worked with her on four or five occasions in 2005 and
in 2006. There was no evidence he worked full days or at a capacity comparable
to hers. In notes of her earlier conversations with government officials, she
said he sat down through the day and he could not see well enough to pick all
of the berries on a bush or plant. He could barely walk according to the officers’
notes of her conversations. Assuming he worked on five occasions that year, for
the equivalent of half-days allowing for his sitting down and his ailments, he
would have only contributed 3% of her berries. Even if his contributions were
relevant to her earnings or hours, I do not accept that such modest
contributions of an accompanying spouse to Mrs. Chahal meeting her target
or quota for berries can be considered to have had any material impact on her
hourly earnings or hours worked. In any event, the evidence is consistent and
clear that she worked between the hours of 7 a.m. and 7 p.m. for her
employer and was paid for an eight or ten-hour day on an hourly basis.
[45]
In these circumstances,
I find that Mrs. Chahal’s insurable earnings for 2005 to be $8,190 and her
insurable hours for 2005 to be 936. For similar reasons, I find her 2006
insurable earnings $8,070 as reported on her ROE and her insurable hours to be
900. There was simply not any acceptable evidence before me to parse these
numbers any finer having rejected the numbers in CRA’s ruling and how they were
arrived at.
[46]
It is apparent from
earlier Court decisions, notably Deputy Judge Rowe’s decisions in Parmar
v. M.N.R., 2008 TCC 179, [2008] T.C.J. No. 164 (QL) and Dadwal
v. M.N.R., 2008 TCC 34, [2007] T.C.J. No. 569 (QL), as
well as in the decisions in Gill v. M.N.R., 2006 TCC 149,
[2006] T.C.J. No. 253 (QL), Khunkhun v. M.N.R., [2002] T.C.J.
No. 483 (QL) and Jawanda v. M.N.R., 2007 TCC 583, [2007] T.C.J.
No. 396 (QL), that the government has concerns about the Employment
Insurance program in the berry farm industry. It appears that if there is a
problem, it lies largely with the possibility of unscrupulous employers taking
advantage of their employees and our government EI program.
[47]
If Canadian policy
allows immigrant farm workers to come to Canada in their late sixties needing
to work, and only able to work at demanding manual labour for minimum wage, one
wonders how they really expect them to support themselves in their old age.
Most jobs do not hire people in their seventies. While I am sympathetic to
the government’s difficult position, I must ask what is the benefit of putting
an elderly couple through such an ordeal because they may have compassionately helped
each other with the paid minimum wage work they do to live. There was no
allegation that they were both trying to claim EI benefits at any point in time,
much less for the same employment.
[48]
I am not at all
unsympathetic to the government’s situation in such cases, however its focus on
the individuals’ EI claims and its reluctance to produce employers as witnesses
or to produce evidence regarding productivity in the industry, which seems to
be mandated by Regulation 10(3) for purposes of making rulings, does not
look good on them. I would add to the recent comments and suggestions of
Deputy Judge Rowe in another berry picker case that, after our senior
government officials have reread John Steinbeck’s Grapes of Wrath, they
should be made to sit in this Court and hear these people’s stories and then
picture themselves in the role of judge in order to understand how poorly the
government’s positions aid the Court in determining the employees’ actual hours
worked.
[49]
I should add that it
would be equally open to the berry farm sector or to an organized group of
employees to develop and introduce evidence relating to productivity and
efficiency of berry pickers to demonstrate the reasonableness and therefore
apparent correctness of hours recorded in daily logs in circumstances where
daily weight quotas are also monitored. It may be that the sector has no
interest in introducing that evidence because it would not aid their workers. Absent
any such evidence from either side, in this case I am satisfied that I have
made my decision based on the best evidence available to me notwithstanding
that it does not appear to be the best evidence that should have been
available.
[50]
I would reiterate my
comments of last year in the Jawanda case regarding the
inappropriateness of the Crown wanting largely to rely upon onus and
assumptions in cases such as these. The unique tax laws relating to onus and
assumptions were developed to reflect that, in most cases, it is the taxpayer
who is best able to know, and introduce into evidence, the relevant facts and
information. In cases such as these, where it is clear that there had been numerous
investigations by federal and provincial levels of government into berry
pickers and berry farm owners’ practices, the reasons behind the rule of onus
and assumptions are not so compelling. I have, however, applied them in any
event.
[51]
I will be allowing
Mrs. Chahal’s appeals for 2005 and 2006.
Signed at Ottawa, Canada, this 12th
day of June 2008.
"Patrick Boyle"
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