Citation: 2006TCC149
Date: 20060616
Dockets: 2001-2098(EI), 2001-2100(EI),
2001-2101(EI), 2001-2115(EI),
2001-2116(EI), 2001-2117(EI),
2001-2118(EI), 2001-2120(EI),
2001-2121(EI), 2001-2125(EI)
BETWEEN:
GURDEV S. GILL, MANJIT K. GILL, HARMIT K. GILL,
SURINDER KAUR GILL, SURINDER K. GILL, SANTOSH K.
MAKKAR,
JARNAIL K. SIDHU, HARBANS K. KHATRA,
HIMMAT S. MAKKAR, GYAN K. JAWANDA,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] Each appellant appealed from a decision –
dated January 11, 2001 – issued by the Minister of National Revenue (the
"Minister"). Each decision dealt with a specific period relevant to
the particular circumstances of the individual named therein.
[2] Amy Francis and Shawna Cruz appeared as
counsel for the respondent. Ronnie Gill, Certified Management Accountant,
appeared as agent for all appellants and for Rajinder Singh Gill and Hakam
Singh Gill, equal partners in a partnership operating as R & H
Gill Farms, who are named in the style of cause as intervenors.
[3] On October 12, 2004, Justice Little of this
Court issued an Order – in response to a Notice of Motion by counsel for the
Respondent – that the appeals named in said Notice of Motion be heard together
on common evidence pursuant to section 10 of the Tax Court of Canada Rules
of Procedure regarding appeals filed under the Employment Insurance Act
(the "EIA"). The Order also included directions
concerning ongoing conduct of the litigation and by further Order dated June
10, 2005, the hearing of the within appeals was set to commence on
July 4, 2005 at Vancouver, British Columbia.
[4] The within proceedings occupied 24 days
during which 22 witnesses testified. Most appellants testified in the Punjabi
language and the questions and answers and other aspects of the proceedings
were interpreted by Russell Gill, a certified court interpreter fluent in
English and Punjabi. In addition to interpreting oral testimony, Gill – on many
occasions – translated written documents contemporaneously and converted the
printed word into speech. Included in the binders filed as exhibits, were reports
of numerous interviews that had been conducted with the appellants and other
persons. I am satisfied the interpretation of the spoken word and the
translation of documents or interpretation of questions and answers within the
transcripts of Examinations for Discovery of various appellants was performed
in an extremely efficient manner and to a standard that permitted all
Punjabi-speaking witnesses to present fully their testimony and for all
appellants to submit relevant facts pertaining to their specific case. Ronnie
Gill, agent for the appellants and the intervenors is also capable of
communicating orally in Punjabi. On occasion, Punjabi-speaking individuals
testified mainly in English but Russell Gill was present in order to assist in
interpreting certain words or phrases. On one occasion, Mr. Kasmir Gill,
a certified court interpreter, substituted for Russell Gill.
[5] In the body of hundreds of documents
forming part of the material entered as exhibits in these proceedings, the
names of some individuals have been spelled in different ways. Punjabi is a
syllable-based language and the conversion to the English alphabet sometimes
produces a different spelling if written phonetically.
[6] In all cases, the employer was R & H
Gill Farms hereinafter referred to as Gill Farms. The appeals fell within two
categories. Harmit Kaur Gill is the wife of Hakam Singh Gill,
a partner in Gill Farms. Manjit Kaur Gill is the wife of Rajinder Singh Gill
– the other partner in Gill Farms – and is the sister of Harmit Kaur Gill.
Since these two appellants were related to the partners, the decisions were issued
by the Minister pursuant to subsection 93(3) of the EIA and the
employment of each appellant was held to be excluded employment within the
meaning of subparagraph 5(2)(i) on the basis their relationship with
Gill Farms was non-arm’s length and the Minister was not satisfied within the
meaning of the relevant provision that either appellant and the partnership
would have entered into a substantially similar contract of employment if they
had been dealing with each other at arm’s length. The employment involved in
these two appeals encompasses certain periods in each of 1996, 1997 and 1998
and the decision letters also referred to paragraph 3(2)(c) of the
former Unemployment Insurance Act (UIA) since some periods of employment
for Harmit Kaur Gill and Manjit Kaur Gill were alleged to
have occurred prior to the coming into force of the EIA on June 30,
1996.
[7] None of the remaining appellants are
related within the meaning of the relevant provision of the Income Tax Act (the
"ITA") as applied to the EIA and all periods of
employment that were the subject of decisions issued by the Minister were
within 1998. With respect to the remaining appellants who were not members of
the Gill family, the decision of the Minister issued to each individual was
based on the finding that none of them was engaged in insurable employment with
Gill Farms because his or her employment during the period under
consideration was considered to be non-arm’s length as a matter of fact within
the meaning of the relevant provision of the ITA. However, within each
decision, the Minister included an alternative position in which the number of
hours of employment and the amount of insurable earnings during the relevant
period for the named appellant were calculated in the event the primary
position of the Minister was found – later – to be untenable as a matter of
law. While this approach of issuing a decision with an alternative component
may seem odd at this juncture, it will be dealt with later in the course of
these reasons. The decisions issued to the non-related appellants were also
based on paragraph 5(2)(i) of the EIA.
[8] Although the periods of employment and
other circumstances differ from appellant to appellant, counsel for the
respondent advised the following assumptions extracted from paragraphs 7(a) to
7(g) inclusive, of the Reply to the Notice of Appeal (Reply) of Harmit K.
Gill (2001-2101(EI)) apply to each appellant in the within proceedings and
read as follows:
(a) during the Periods, the
Partnership operated a farm, consisting of approximately 8.25 acres planted in
blueberries (the "Farm");
(b) the partners in the Partnership
are two brothers, Rajinder S. Gill and Hakam S. Gill;
(c) the Appellant is married to
Hakam S. Gill and her sister, Manjit K. Gill, is married to
Rajinder S. Gill;
(d) the Partnership employed a
combination of hourly employees and contract workers to pick the blueberries;
(e) the contract workers were
generally hired on a day to day basis as needed and were paid on a piecework
basis;
(f) the hourly employees were
employed for the entire season and were paid by the hour;
(g) the Partnership guaranteed the
hourly employees that they would be employed for the entire season, regardless
of whether there was enough work for them to do or not;
[9] The within appeals were heard together on
common evidence, and several binders filed as exhibits – as set out in detail
later – applied to most appellants, but it is important to note each appeal
depends on its own particular facts and requires an independent analysis of the
evidence and an assessment of credibility in instances where there were
conflicting versions of events and circumstances as testified to by different witnesses.
As explained at the commencement of proceedings, the onus is on each appellant
to prove his or her case on a balance of probabilities. Further, the appellants
were informed it was important to disclose the circumstances of their
employment including details concerning the hours of work, transportation to
and from the job site(s), nature of tasks performed, method of payment and
identity of co-workers.
[10] Counsel for the respondent and the agent
for the appellants and intervenors consented to the introduction of a large number
of exhibits, the majority of which were in binders containing numerous
documents. In the course of the litigation, each appellant was provided with a
binder of documents pertaining to his or her appeal. The following exhibits
were entered:
R-1 – Respondent’s
Book of Documents (Common) – Vol. 1, tabs 1-34, inclusive;
R-2 – Respondent’s
Book of Documents (Common) – Vol. 2, tabs 35-50, inclusive;
R-3 – Respondent’s
Book of Documents re: Gurdev S. Gill, tabs 1-14, inclusive;
R-4 – Respondent’s
Book of Documents re: Harbans K. Khatra, tabs 1-15, inclusive;
R-5 – Respondent’s
Book of Documents re: Harmit K. Gill, tabs 1-19, inclusive;
R-6 – Respondent’s
Book of Documents re: Surinder Kaur Gill, tabs 1-13, inclusive; (Appeal 2001-2115(EI))
R-7 – Respondent’s
Book of Documents re: Surinder K. Gill, tabs 1-17, inclusive; (Appeal
2001-2116(EI))
R-8 – Respondent’s
Book of Documents re: Manjit K. Gill, tabs 1-23, inclusive;
R-9 – Respondent’s
Book of Documents re: Himmat S. Makkar, tabs 1-15, inclusive;
R-10 –
Respondent’s Book of Documents re: Santosh K. Makkar, tabs 1-14, inclusive;
R-11 –
Respondent’s Book of Documents re: Jarnail K. Sidhu, tabs 1-16, inclusive;
R-12 –
Respondent’s Book of Documents re: Gyan K. Jawanda, tabs 1-15, inclusive;
[11] Prior to reproducing the testimony of each
appellant, I will identify a particular binder – marked with an exhibit number –
applicable to that appellant and, thereafter, unless noted otherwise, a tab
number will refer to document(s) located within that binder. The pages of
documents located within tabs in each of the binders are stamped with a number
– beginning at 1 – at the upper right corner and continue in sequence until the
last page of the material in the last tab. Reference to a page number
corresponds with the stamped number even though other numerical markings –
handwritten in pen, pencil or typed – sometimes appear at various locations on
certain pages.
Harmit Kaur Gill
[12] Harmit Kaur Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2101(EI) – is Exhibit R-5.
[13] Harmit Kaur Gill appealed from the decision
of the Minister wherein her employment with Gill Farms during the periods from
May 25 to September 26, 1998, May 25 to September 27, 1997 and June 2 to
October 19, 1996 was found to be uninsurable because the Minister was not
satisfied that, having regard to all the circumstances, she and the Gill
brothers – Rajinder and Hakam – operating Gill Farms would have entered
into a substantially similar contract of employment if they had been dealing at
arm’s length. The appellant’s position is that her employment during those
periods was insurable and that she had earned the money paid to her in the
course of performing her work in those years.
[14] Apart from the assumptions of fact set
forth in paragraphs 7(a) to 7(g), inclusive, of the Reply pertaining to the
appeal of Harmit Kaur Gill – stated to be common to all appellants – the
assumptions in paragraphs 7(h) to 7(r) of said Reply were also relied on by the
Minister, as follows:
(h) the Partnership employed the
Appellant in the Periods as a supervisor on the Farm;
(i) the Appellant's sister, Manjit,
was also employed by the Partnership in the Periods as a supervisor on the
Farm;
(j) the hours worked by the
Appellant as set out in the Partnership's records did not reflect the hours
actually worked by the Appellant;
(k) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
as a supervisor when there was in fact no work for the other workers to do;
(l) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(m) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(n) there was no need for the
Partnership to employ two fulltime supervisors in the Periods;
(o) the Partnership issued Records
of Employment to the Appellant in respect of the Periods which she used to
collect Employment Insurance benefits;
(p) the Appellant is related to the
Partnership within the meaning of the Income Tax Act;
(q) at all times material hereto,
the Appellant was not dealing with the Partnership at arm's length; and
(r) having regard to all the
circumstances of the employment in the Periods, including the remuneration
paid, the terms and conditions, the duration and the nature and importance of
the work performed, it is not reasonable to conclude that the Appellant and the
Partnership would have entered into a substantially similar contract of
employment if they had been dealing with each other at arm's length.
[15] Harmit Kaur Gill testified she is a cannery
worker, living in Abbotsford,
British Columbia. She is
married to Hakam Singh Gill, and her sister, Manjit Kaur Gill, is
married to Rajinder Singh Gill, the brother of Hakam. The appellant,
a Canadian citizen, was born in India. She and her husband have 6 children.
Until her husband decided to become a blueberry farmer, she had not been
familiar with that crop, although she had picked strawberries on their own farm
in Canada and raspberries on another person’s farm.
The current farm was purchased in 1978 and Hakam Singh Gill had a
full-time, off-farm job until 1998. He took two weeks holidays in the summer
and worked on the farm as well as on his days off from the mill and after
coming home from work. The appellant stated she had not attended school in Canada and had gained direct farming experience by working
on the farm owned by her husband and brother-in-law. Although she was
responsible for carrying out several tasks associated with the farm operation,
she did not participate in any spraying of pesticides and/or herbicides nor was
she involved with fertilizing the crops. She stated it was difficult to find
farm workers to hand‑pick berries because Gill Farms did not use picking
machines which, apart from being expensive, could not distinguish between green
and ripe berries. She was aware of 8 types of blueberries but Gill Farms
only grew 4 varieties, namely, Northland, Blue Crop, Dixie
and Duke. In ripening sequence, Duke is first, then Northland, followed by Blue
Crop and Dixie. In the appellant’s experience, picking times applicable to
each type of blueberry can vary from year to year but occur within a 3-week
period. Usually, Duke would be picked between the last week of June and the
first week of July. The Northland variety ripens about a week later and
picking of both types continues until the other types – Blue Crop and Dixie – are ready for harvesting. By the time the
Dixie crop is ripe around the middle of August, the harvesting of Northland
berries is nearly finished. Depending on the weather, the picking season for Dixie will extend into late September or early October.
Harmit Kaur Gill stated Gill Farms had two categories of workers
during the periods in 1996, 1997 and 1998 relevant to her appeal. Some were
considered as full-time workers and were paid an hourly wage. The appellant
stated although Gill Farms did not require these workers to use picking
cards for the purpose of calculating payment for work performed, the partners
still wanted to have a means by which to monitor average daily production of
each picker. Other workers, usually hired for shorter periods of time, were
paid on a piecework basis and the appellant stated it was apparent the picking
skills varied considerably among a group of workers. Although the picking cards
were in duplicate – when used by full-time workers – it was not necessary for
any of them to retain a copy for purposes of calculating remuneration. In 1998,
during the high season, Gill Farms employed between 25 and 30 workers, of which
10 to 12 were paid on an hourly basis. No workers were hired through the medium
of a labour–contracting business entity. The appellant stated Gill Farms
produced high-quality blueberries which were sold on the fresh market at a
price higher than that paid by the canneries. However, it was necessary to
ensure good berries were picked and that the green ones were removed since Gill Farms'
customers were re-selling the product directly to the public. Gill Farms
sold berries in large containers – lugs – to Greenfield Farms. Other customers
purchased berries contained in boxes or flats. The appellant stated she often
worked cleaning berries and preparing orders for delivery to customers. The
appellant stated she had received a letter requesting her to attend an
interview at the Abbotsford office of Human Resources Development Canada (HRDC)
on November 28, 1996. She recalled she was accompanied by her son – Kulwant –
in order that he could assist in understanding the procedure since his ability
to speak, write and read the English language was much better than her own.
Harmit Kaur Gill stated she did not receive any advice to the effect
she was entitled to be represented by counsel and felt compelled to answer
questions put to her by Moira Emery (Emery) – an Investigation and Control
Officer (ICO) employed by HRDC – and did not have the sense she was free to
terminate the interview and leave any time she chose. She recalled the room was
small – perhaps 8 feet by 8 feet – without a window, and it was
hot. She was interviewed by Emery who was seated in front of her, although
Emery stood up on occasion when posing questions. The appellant recalled
informing Emery that she could speak “some” English and could read
and write “some” English but at times it was necessary for her son – Kulwant
– to interpret Emery’s questions into Punjabi and to interpret her response to
Emery in English. She stated Kulwant came to Canada at age 5 and, like many Indo-Canadians
born in Canada, did not speak pure Punjabi but used a
mixture of Punjabi and English words to communicate. Ronnie Gill, agent for the
appellant, referred to notes – tab 12 – of the interview as recorded by Emery.
The appellant stated she had not read those notes. She recalled that at some
point near the end of 1998, Emery and Claire Turgeon (Turgeon) –
another HRDC employee – attended at her residence on the Gill Farms property
without having provided any advance notice. There were no workers in the field
at that time. The door was answered by Rajinder Singh Gill and his
wife – Manjit – was present. Harmit Kaur Gill recalled Emery and
Turgeon were asking questions and that Turgeon informed her she had to provide
answers even if she had difficulty recalling certain events. After a few minutes,
the appellant’s daughter came down the stairs to the living room and insisted
Emery and Turgeon explain the purpose of their visit. The appellant stated
Turgeon’s response was to instruct her daughter not to interfere. The interview
ended shortly thereafter and Harmit Kaur Gill recalled being told
HRDC would be in further contact. Until this point, she had not realized there
was a problem arising with respect to her eligibility for unemployment
insurance (UI) benefits in connection with her employment at Gill Farms during
the earlier farming seasons of 1996 and 1997 or in 1998, particularly since she
had qualified – again – for benefits in respect of her insurable earnings as a
result of working at Gill Farms during the 1998 growing season. Originally, she
considered the HRDC visit to have been motivated by an inquiry into the
entitlement of her sister, Manjit Kaur Gill. With respect to her own employment
history at Gill Farms, Harmit Kaur Gill stated she began working for her husband
and brother-in-law in 1996. At that time, all the blueberry plants were mature
and her tasks included weighing berries, driving workers to and from the farm,
filling orders, cleaning berries, dealing with employees during the day and
recording their hours of work. For her services in 1998, she was paid $9 per
hour. She took direction from her husband and/or her brother-in-law and worked
in the field most of the time. However, she also worked off the farm at a
strawberry cannery operated by Canada Safeway Limited (Safeway) under the brand
name Lucerne Foods (Lucerne). When called upon to work at Lucerne, she accepted whatever hours were offered – even
during blueberry picking season – because the pay was between $2 and $3 per
hour more than she earned at Gill Farms. Currently, her work at the cannery
permits her to earn $15 per hour but the work is seasonal and employees
are called to work on the basis of seniority so her hours – per season – are
somewhat limited. The strawberry season is finished at the end of June. Because
the Lucerne cannery operated in shifts, the appellant,
due to her lack of seniority, had to accept work beginning at 11:30 p.m. and
continuing until the next morning. The appellant stated her descriptions of
work at Gill Farms and at the cannery are applicable to 1996, 1997 and 1998
since – for the most part – the seasons were more or less the same. During
those years, while working at the cannery, she continued to perform her tasks
at Gill Farms so that she often worked the equivalent of two full shifts in one
work day. Sometimes, she performed tasks such as record keeping after returning
home from a shift at the cannery. Other individuals working at Gill Farms also
worked at Lucerne or at a fish cannery, nursery or
greenhouse since it was not unusual for people to have two jobs.
Ronnie Gill referred the appellant to notes of an interview – Exhibit R-1,
tab 24 – held at the HRDC office in Langley,
B.C. on May 20, 1999. The appellant stated she recalled the
circumstances of that meeting including being warned by Turgeon that she could
be prosecuted for making false statements. She stated her impression at the
time was that she was required to answer all the questions put to her by
Turgeon. Several people were present including Paul Wadhawan, accountant for
Gill Farms, as well as Manjit Kaur Gill, Hakam Singh Gill and
Rajinder Singh Gill. An ICO – Nav Chohan – spoke Punjabi and English
and Emery and Turgeon were present together with an accounting expert, James Blatchford
and another accountant, Mary Anne Hamilton representing HRDC. The appellant
recalled the meeting took place in a large room and that it lasted 4 or 5 hours
without any substantial breaks. She stated Paul Wadhawan provided
answers to some questions and that she also provided information – in English –
to the interviewers from time to time. The appellant recalled Harby Rai –
an HRDC employee – had visited Gill Farms on August 12, 1999 and was referred
to typed notes – Exhibit R-5, tab 4 – prepared by Rai in respect of said
visit. Rai had been accompanied by Turgeon, Nav Chohan and a representative of
the provincial Employment Standards Branch (ESB). At that time, the appellant
was inside the house preparing tea for the workers as it was cold and raining.
She considered the delivery of beverages to be part of her duties as workers
needed water or juice on a regular basis especially during hot weather. With
respect to other duties, the appellant stated sawdust had to be placed around
the plants in order to inhibit weed growth. Another problem which caused
concern to workers was the height of grass which they feared might conceal
poisonous snakes of the sort they had encountered while living in India. As a result, spraying had to be undertaken but the
tractor could not be used to access the rows so additional manual labour was
required to complete that task. The appellant was referred to a Questionnaire – tab 5 –
and recalled providing those answers to Ronnie Gill who completed the form
on her behalf prior to inserting her name, address and phone number on the last
page thereof and indicating – in the space provided – she had been the
interpreter. The appellant stated she was paid by cheque and received only
small payments early in the season but was paid in full shortly after the end
of the season. In this sense, she stated she was not treated differently
than any other non–related employee since this practice is common in the
agricultural industry and workers are aware they can request and obtain
advances of salary during the course of the season. The appellant stated she
recorded workers’ hours on a piece of paper and later entered this information
onto a time sheet. She was referred to several sheets at Exhibit R-1, tab 32,
described on the cover page as Daily Log of Workers & Produce (Daily Log).
The appellant stated the document was in her own handwriting and that she had
created it from time sheets in order to satisfy Turgeon who had requested
production of that record. As a result, the appellant created the Daily Log in
order to meet the demand – within the time frame set by Turgeon – to provide
information concerning hours of work. She stated the time was recorded from the
point when workers arrived in the field and began working. She recorded hours
of work for those employees paid on an hourly basis for the purpose of
permitting their insurable hours to be calculated prior to issuing them a
Record of Employment (ROE). However, she did not record hours of work for those
casual workers who were remunerated on a piecework basis. Some individuals
worked only a few days and when they left, an ROE was provided only if
requested. The appellant stated the goal at Gill Farms was to remove every
berry from each plant and that it required 5 or 6 separate pickings
to harvest properly the entire acreage, particularly in view of their somewhat
specialized market involving fresh berries. She was aware that other blueberry
farmers in the area picked only 2 or 3 times during the season. Depending on the
number of workers, the appellant stated her sister – Manjit – and/or Hakam transported
them to and from work using a truck and a car but – on
occasion – it was necessary for one of them to make two trips if only one
vehicle was available. She pointed out the passage of time since those seasons
in 1996 through 1998 has made it difficult to remember the sequence of events
since the duties performed by her were more or less the same during each year.
[16] Harmit Kaur Gill was
cross-examined by Amy Francis. The appellant confirmed she had been advised by
Emery and Turgeon during their visit to the farm that they wanted her to attend
an interview at the HRDC office. At said interview, she agreed she had not
refused to answer any of the questions put to her by Emery and that her son –
Kulwant – remained in the room throughout. She stated Kulwant understands
Punjabi better than he speaks it but she is able to communicate with him in
that language. The appellant confirmed that she answered the questions truthfully
to the best of her ability. Concerning the visit of Emery and Turgeon to the
farm, as described in notes taken by each – Exhibit R-8, tabs 13 and 14,
respectively – the appellant agreed there had been a formal demand issued for
the production of certain documents at that time. Harmit Kaur Gill expressed
her opinion that Emery and Turgeon were angry during their visit because of the
volume of their voices when speaking to her and other members of the Gill
family. Counsel referred to the letter of Ronnie Gill to Revenue Canada – dated September 30, 1999 – with enclosed typed
sheets – Exhibit R-5, tab 6 – and to the Questionnaire at tab 5, both of
which had been signed by the appellant following preparation by Ronnie Gill on
her behalf. Harmit Kaur Gill reiterated her answers – in both documents – were
accurate to the best of her knowledge. Regarding her language skills in
English, the appellant attended Grade 10 in India
and is able to read and write in Punjabi. She stated that although
her ability to read and write English is limited, she is the only adult
member of the family at Gill Farms with that skill and her husband, and her
sister and her brother-in-law, rely on the Gill children in each family to
provide assistance in that regard. The appellant handles the paperwork and her
husband – Hakam – conducts all business transactions that can be handled
verbally. During the summer of 1998, a daughter – Satnam – then 19, was
attending college but worked on the farm when needed since she was the only
member of the family with a licence to use pesticides and to mix fertilizers.
In order to obtain the 5-year term licence, Satnam was required to take a
course and pass an examination. Although Satnam picked berries from time to
time, the appellant described those efforts as being "just for fun” rather
than as part of an obligation on her part including those times when Satnam
helped to weigh berries or to move tubs or other containers. Harmit Kaur Gill
stated Satnam rarely transported workers and did not assist in other tasks such
as the installation or removal of nets to cover the blueberry plants. Another
daughter – Daljit – then 17, performed some tasks on a casual basis during the
1998 season including driving workers to and/or from work on 3 or 4 occasions.
Her son – Kulwant – also helped out by loading berries onto the truck but did
not drive it. The appellant stated these children had provided some services to
the farm in 1996 and 1997 but cannot recall the nature and extent thereof. She
stated her sister Manjit’s two sons, Baljit and Gurdev, may have helped on
the farm now and then during 1998. The youngest children did not perform
any farming tasks in 1998 or earlier. Counsel referred the appellant
to a series of Statements of Accounts – Exhibit R-2, tab 41 – pp. 504-605,
inclusive issued by Fraser Valley Credit Union (Fraser Valley) in Abbotsford,
with regard to the account in the names of Rajinder Gill and Hakam Gill.
Located within tab 41 at pp. 606 to 716, inclusive, are Statements of
Accounts issued by the Khalsa Credit Union (Khalsa) branch on Clearbrook Road, Abbotsford, said account being in the names of
Rajinder S. Gill and Manjit K. Gill. Turning to a photocopy
of a cheque at p. 517 within said tab, the appellant confirmed she had
written out cheque # 0388 ‑ dated May 1, 1998 – to Kulwant S. Gill
in the sum of $200 and had noted "labour" on the memo line. She
identified cheque # 0414 at p. 533 – dated July 3, 1998 –
payable to Kulwant Singh Gill – in the sum of $300 – but stated it
had not been written by her. She confirmed she had written out the body of
cheque # 0455 ‑ p. 554 – dated September 3, 1998 – in the
sum of $300 – payable to Kulwant Singh Gill. The appellant stated she did
not have signing authority on that account so even though she wrote out cheques
in accordance with the instructions of Hakam Singh Gill and/or
Rajinder Singh Gill, she did not sign any of them. Counsel referred
the appellant to cheque # 0467 – p. 560 – dated September 26, 1998,
payable to Baljit Singh Gill in the sum of $6,500. The appellant
confirmed she had written out that cheque and understood it to have been issued
in repayment of a loan made by Baljit in relation to certain construction costs
incurred in building a new house. She stated that account was used for personal
family purposes from time to time but was not aware whether any other account
was used for the purpose of receiving farm revenue. With respect to Exhibit R-1,
tab 32 – the handwritten sheets comprising the Daily Log – Harmit Kaur Gill
stated she did not inform any HRDC official that a logbook existed in that
form. Instead, she told HRDC that the hours of workers had been noted – initially – on a piece of paper and entered into a formal time sheet
later at her convenience. Counsel referred the appellant to Turgeon's notes –
Exhibit R-1, tab 24 – at p. 233 concerning the interview on May 20, 1999 at the
HRDC office in Langley. Turgeon posed the question which had been
produced first, the payroll record or the Daily Log and the appellant’s
response – as noted – was "First, the Daily Log". As to the frequency
the log was completed, the response by the appellant was "Every day.
Rajinder would tell us we had to keep track". Two questions further,
the appellant’s answer – as noted – was that the record was usually kept every
day although sometimes the workers’ hours may have been entered on another day.
The appellant stated there was some confusion in her answers because the Daily
Log was created by her in response to what she perceived was a requirement
expressed by Turgeon and it had been delivered to the HRDC office on November
30, 1998. The appellant stated that once the hours of work for each worker were
transcribed onto the time sheet from the small pieces of paper or from entries
in a notebook, those bits and pages were discarded. Harmit Kaur Gill
recalled Gill Farms had a workforce of between 15 and 20 in 1996 and that some
of them were paid on a piecework basis. She stated some people worked more
than one season at Gill Farms. Counsel referred the appellant to the
notes of her November 26, 1998, HRDC interview with Emery –
Exhibit R-5, tab 12, p. 60 – where Emery wrote – near the middle
of the page – that the appellant stated although Gill Farms – originally –
found workers by word of mouth that “after the first year it has been mainly
the same crew of about 17 workers for the 5 years; sometimes when there are
lots of berries, the pickers find extra workers and bring them in.” Counsel
suggested to the appellant that records indicated none of the Gill Farms
workers – in 1998 – had worked there earlier. The appellant stated she had
recounted the history of the farm between 1982 and 1988 – as noted by Emery
commencing at the middle of p. 58 – and during that period the acreage in
production had grown from 1-2 acres to more than 8 acres at which point as many
as 20 workers were required. Counsel referred the appellant to certain payroll
records of workers commencing with Gurdev Singh Gill (Exhibit R-3, tab 13).
The appellant confirmed 1998 was the first season Gurdev Singh Gill had worked
for Gill Farms and that she made entries therein and otherwise completed said
record. With respect to the payroll record of Harbans K. Khatra –
Exhibit R-4, tab 15 – the appellant stated she did not think Khatra had
worked earlier for Gill Farms although she had returned during the 1999 season.
Surinder Kaur Gill – married to Gurdev Singh Gill – worked at Gill
Farms in 1998 and her hours were recorded on the payroll record in
Exhibit R–6, tab 12. Another worker with the same name – hereinafter
referred to as Surinder K. Gill – worked in 1998 but not earlier at
Gill Farms and the appellant also prepared her payroll record in
Exhibit R-7, tab 14. Ronnie Gill – agent for the appellants – advised
the Court that even though said record had been prepared in the name of
Surinder Kaur Gill, she is not the same person as Surinder Kaur Gill
– wife of Gurdev Singh Gill – and their respective identities had been
confirmed to the satisfaction of all parties concerned by referring to their
Social Insurance Numbers. Manjit Kaur Gill – the appellant’s sister – worked
for Gill Farms in 1996, 1997 and 1998 and her 1998 payroll record – Exhibit
R-8, tab 23 – was prepared by Harmit Kaur Gill. She identified a payroll
record – Exhibit R-8, tab 21 – that she prepared for a worker – Manjit Kaur
Sidhu – and agreed Sidhu had not worked for Gill Farms prior to 1998. The
appellant acknowledged Himmat Singh Makkar had not worked for Gill Farms before
1998 nor had Santosh K. Makkar nor Gyan K. Jawanda nor Gurdip K. Grewal
nor Sukhwinder Gill nor Pawandeep Kaur Gill, all of whom had
payroll records prepared by the appellant. She thought Jarnail K. Sidhu had
worked there during one season prior to 1998 and recalled Sidhu’s husband had
been employed at some point – earlier – by Gill Farms. In light of this
information, counsel asked Harmit Kaur Gill why she told HRDC that
Gill Farms had the same crew each year. Harmit responded that some of the
piecework pickers showed up each year looking for a few days work but could not
recall any of their names. The appellant conceded that of all the workers
employed in 1998, she could confirm that only Manjit and herself had worked for
Gill Farms in prior seasons. Turning to the issue of transportation of workers,
counsel inquired about the logistics of transporting between 12 and 15 workers
to the farm each morning and returning them to their homes at the end of the
day. The appellant stated that sometimes two vehicles were used but on other
occasions one vehicle had to make two trips. In that event, the first group
arriving at the farm would begin work shortly thereafter. Counsel pointed out
that the hours worked seem to be the same for all workers including those who
must have arrived later if they were in the second load transported to the farm
in the morning. The appellant stated she could not recall the precise order in
which workers were collected in the morning. Counsel suggested the payroll
records should reflect some variation in working hours since people did not
arrive at the same time. The appellant stated she could not recall if the group
of workers who arrived early were also the first to finish. She stated the
quitting time was declared by her husband – Hakam – who returned, after 4:00
p.m., from his job at the mill. The appellant stated some workers remained late
if a large order had to be filled while others may have left earlier if they
were also working at a cannery or for another employer during the same time
frame. She agreed with counsel’s observation that if two vehicles were used to
transport workers to the farm, the start time of workers would be the same but
if one vehicle was used to make two trips, there could be a 30-45 minute delay
in the start time for workers within that second group. Harmit Kaur Gill stated
she prepared all payroll records and had noted the start and finish time of all
workers. She shared driving duties with Hakam, Rajinder and Satnam but rebuffed
counsel’s suggestion she was the primary driver even though it was pointed out
she had stated earlier in her direct examination that she "mostly"
drove workers to the farm and that one car had been used more often than not.
The appellant agreed she had made those statements but added the driving was
performed by whomever had the time, including Manjit. The appellant stated she
followed the same route whenever possible while picking up workers at their
homes but in the event someone was not waiting outside, she used her cell phone
to call them and to advise she was picking up other people in the interim and
would return later. Counsel pointed out the Gill Farms workers lived over a
considerable area and that it would take up to one hour to collect them and
then drive to the farm. The appellant agreed some workers lived in Abbotsford
and that the Makkars lived only 15 minutes southeast of the farm as did Gurdev
Singh Gill and his wife. She attempted in the same trip to pick up workers who
lived in the same direction from the farm, for example, Gyan K. Jawanda,
Pawandeep Gill, and one or more workers. She cannot recall whether they
were picked up first if only one vehicle was used to transport workers. On
occasion, workers paid by piecework were also transported to the farm. The
appellant stated she recalled the Makkars generally used their own vehicle or some
member of their family drove them to and from work. On reflection, the
appellant stated she was certain the Gill family never used 3 vehicles to bring
people to work and estimated one vehicle was used only two or three times
during the season and that two vehicles was the norm. The appellant stated
that Santosh K. Makkar, Jarnail K. Sidhu, Gurdev S. Gill,
Surinder Kaur Gill, Harbans K. Khatra rode together when
the car was used and that Gurpal S. Grewal was included when he was
not taken to work by a member of his family. The workers who lived in the
Aldergrove area were picked up separately. Counsel referred the appellant
to the payroll record – Exhibit R-3, tab 13 – of Gurdev Singh Gill in
which the entries indicate he worked exactly 9 hours a day, for 6 days
each week from August 2 to September 12, 1998. His wife, Surinder Kaur Gill’s
payroll record – Exhibit R–6, tab 12 – showed she also worked precisely 9
hours per day, 6 days per week during the course of her employment. Counsel
showed the appellant the payroll record – Exhibit R–11, tab 15, p. 2 –
of Jarnail Kaur Sidhu indicating the worker was paid for 8 hours ‑ most
days – but seemed to have worked only 7 hours per day on 26 separate days
during the course of her employment with Gill Farms. However, the record
indicated Sidhu worked 7 days per week, commencing June 28, 1998. Counsel
requested an explanation from the appellant for the discrepancy in hours worked
between Jarnail Kaur Sidhu and Gurdev Singh Gill in view of
the fact they rode to work together in the same vehicle. The appellant replied
that men work longer hours than the women and Sidhu may have left work earlier
each day and/or may not have ridden home in the same vehicle. Counsel suggested
that a review of payroll records supported the Minister’s observation that
among workers who rode together as a group, some had more or less hours per day
entered on their payroll records than others and some workers were paid 2 hours
more per day over an extended period of time. The appellant explained that
sometimes certain workers sat around for longer periods during breaks while
others were driven home early by a relative/friend or obtained a ride with
another worker. Harmit Kaur Gill was referred to notes – Exhibit R-5,
tab 12, p. 60 – of an interview conducted by Emery wherein she told
Emery that "the best workers are paid an hourly rate ($7.50, $8) because
they will pick carefully and not mix in poor quality produce just to increase
the weight for piece work". She is also noted to have said that about 12
people were paid hourly. Counsel inquired how the managers at Gill Farms would
know whether someone was a good picker if he or she had not worked there
previously. The appellant agreed that would not be evident at the outset but
the decisions concerning hiring and rate of pay were made by Hakam Singh Gill
or Rajinder Singh Gill or – perhaps, on occasion – both of them.
Counsel advised the appellant that a review of various ROEs issued by Gill
Farms indicated workers were laid off at different times, some as early as
September 12 and others on September 20, 1998. The appellant stated she was not
involved in any decisions to lay off workers. With regard to the destination of
the blueberries grown on the farm, the appellant agreed the majority of the crop
was sold to three customers that operated canneries, namely, Khalon Farms
(Kahlon), Universal Farms (Universal) and Greenfield Farms (Greenfield). However, Gill Farms did supply berries to the fresh
market and also operated a cash-sales stand for those customers who attended at
the farm to pick up berries. In the appellant’s opinion, a pieceworker would
pick between 200 and 300 pounds of berries per day during high season in
mid-July provided the picker worked the entire day. She could not recall the average
daily production of hourly workers even though picking cards were used to
monitor production but based on her experience, estimated a good picker could
pick at least 200 pounds per day when the berries were plentiful. The
appellant stated a piecework picker would receive a picking card every day
because it was the basis for remuneration whereas an hourly worker – at some
point – would be requested to use a picking card but not daily since the card
was not used to calculate wages. The appellant stated she recalled attending at
Discovery on November 7, 2002. Counsel read in certain answers by the
appellant where she said picking cards were handed out only to those workers
who appeared to pick slowly. Further in said Discovery, counsel read to the
appellant answers that indicated Jarnail K. Sidhu, Pawandeep K. Gill
and Sukhwinder K. Gill used one card among them but no other picking cards were
handed out. Later, in the Discovery, the appellant confirmed that only 5 hourly
workers – in total – were handed a picking card. The appellant conceded those
answers at Discovery may be correct since her recollection of events ought to
have been better at that time than in 2005. She also adopted her answers given
at Discovery wherein she agreed 5 workers were told to use picking cards
because they appeared to be working slowly and she wanted to ascertain the
amount each of them picked per day. The appellant stated she was satisfied with
the production of the members of this group and cannot recall if they were
required to use picking cards on more than one occasion. In any event, she
noted that workers have different abilities and Gill Farms did not have a
policy mandating a minimum level of production. However, she or another member
of the Gill family would speak to a worker if they were consistently too slow.
She stated Hakam Singh Gill, usually during his days off from his job
at the mill, decided whether an hourly–paid worker would receive a picking card.
Counsel pointed out to the appellant that in answer to Q. 535 at
Discovery, she stated all berries picked by the hourly workers were weighed and
the amount was recorded in order to monitor the production of each worker. The
appellant agreed this answer was correct and – later in Discovery – explained
if a worker did not have a picking card (sometimes called a punch card)
she recorded the weight of berries handed in by said worker by writing down the
amount on a piece of paper which she showed to Hakam – at some point – and
later discarded. The appellant stated the picking/punch cards served the
purpose of causing the workers to understand their production was being
monitored. The appellant identified photocopies of picking cards – Exhibit R-1,
tab 33 – that were handed out to piecework pickers during the 1998 season. She
confirmed the same cards – in duplicate – were used by hourly pickers but did
not recall whether pickers in that category retained a copy or merely handed
back the card in its original form. The appellant, upon being advised she had
stated – twice – at Discovery that the picking cards were in "one piece"
conceded these answers were not correct as the cards were always composed of
two sheets. Counsel asked the appellant why Gill Farms retained all the
copies of picking cards used by the pieceworkers but had none of the cards
which had been used by the alleged hourly workers. The appellant stated there
was no need to retain those cards since payment for services was based on an
hourly rate. She also disagreed with the Minister’s position which, counsel advised
her, was based on information that all Gill Farms workers – except one – had
told HRDC interviewers they used a picking card every day. The names of these
workers were read to the appellant who asserted these individuals had been
remunerated for their services on the basis of an hourly wage and not by the
pound as suggested by counsel. Harmit Kaur Gill described the work required to
be done on the farm prior to the start of picking season. She stated the
workers spread sawdust around the base of the plants in order to suppress weeds
and – in May – cut off dry branches and pull out grass near the plants
either by hand or using a small tool shaped like a hoe. She stated the task
known as trimming is not the same as heavy pruning which is performed during winter
months. Other preparatory duties included cleaning buckets and the larger tubs
owned by Gill Farms were also washed in order to prevent growth of mold.
Some new plants have to be placed into the ground and fertilizer and sawdust
spread around them. It is necessary to clean up debris composed mainly of
broken branches but the most time-consuming task involves the installation of
nets over the plants to protect berries from being eaten by wild birds. The
installation is undertaken in June and it requires some repairs to be performed
each season to tighten wires and stabilize poles. The appellant stated she
could not recall which workers trimmed branches except for herself, her sister – Manjit –
and another worker Manjit K. Sidhu. The worker Gyan K. Jawanda assisted in the
task of installing the nets as did other workers whom she could not recall. The
work is more or less the same each year and by way of example, the appellant
stated the installation of nets at the farm in 2005 required 6 or 7 people working
together for more than one week. The removal of nets at the end of the season
requires less time and is performed mainly by female workers. The appellant
stated there are many small tasks that must be performed during May and June. Since
there are no workers hired between January and the end of April, all work
during this period is done by her husband – Hakam – because Rajinder does not
participate in the hands-on aspect of the farming operation. The appellant
stated she does not provide any services to the Gill brothers partnership
except when she was employed from near the end of May to the end of September
or early October in 1996, 1997 and 1998. In 1997, Rajinder Singh Gill was laid
off from his job at a mill and was present at the farm more often in 1998 as a
result. Hakam was still employed full time and worked on the farm during his
two weeks holiday during high season. Harmit Kaur Gill stated when
Hakam was on the farm, he performed many duties including picking berries and
hauling loads to the cannery as well as spraying the grass. However, he did not
supervise the workers. Counsel referred the appellant to the notes – Exhibit
R-8, tab 14 – made by Emery in relation to the visit by her and Turgeon to Gill
Farms – on November 3, 1998 – and to the portion thereof where Emery wrote "Hakam’s
wife Harmit and Raginder's wife, Manjit (the client) both work on the farm from
Mar to Sept in a supervisory capacity. They do no picking or weeding. They
supervise the workers which range from 3 or 4 in the period, Mar, April, May to
about a maximum of 30 during the picking season". The appellant did not
recall having made that statement. She stated she had picked berries – on
occasion – and had no reason to say otherwise. Rajinder, Manjit and Hakam were
also present and she does not recall any of them making such a statement. In
her notes, Emery also wrote "No actual hours are kept track of for Harmit
and Manjit because they are in the fields with the workers from their arrival
to their departure". The appellant states that is not correct. With
respect to the policy of issuing ROEs to workers, the appellant stated that at
the end of the season there was an accounting of wages due and she wrote out
the final cheque and the accountant for Gill Farms prepared the relevant ROE
based on information Hakam had reviewed. Upon receipt of the completed ROE,
Hakam signed it and at the settling-up meeting it was handed to the worker. If
the meeting was with an hourly-paid worker, there was no reference to any
picking cards. The appellant stated she could not remember any worker turning
in picking cards but even if any of them still had copies of picking cards,
they were not used to calculate payment of wages since the only basis was the
relevant hourly rate multiplied by the hours worked, to which the applicable
rate of holiday pay was added. The appellant identified her application –
Exhibit R-5, tab 14 – for UI benefits that she signed on October 2,
1998 and handed in at the HRDC Abbotsford office. Harmit Kaur Gill
stated she did not provide an application – for UI benefits – form to workers
at the settling-up meetings but some workers were accompanied by her daughter –
Satnam – to the HRDC office in order that they might apply for benefits but she
does not know the extent of Satnam’s assistance thereafter. The appellant
stated she never instructed any workers to pay back any money to her or to
anyone else at Gill Farms whether from UI benefits or otherwise. Counsel
pointed out many workers did not cash their final pay cheques for as long as
one month after receiving them. The appellant stated she had not instructed any
worker to delay negotiation of their final pay cheque but added she is basing
her recollection on current farm policy and it may have been different in 1998.
Counsel advised the appellant that Manjit told an HRDC official sawdust was
spread only in the spring and not in the fall. The appellant replied she had no
specific recollection of the procedure followed in 1998, except that in either
May or June, sawdust was placed around plants. Dry branches were cut in May
and/or June and again in September. Counsel referred the appellant to the
written response to the Questionnaire – Exhibit R-5, tab 6 – completed by her
agent Ronnie Gill. In describing her duties from June 1 to June 30, 1998,
the appellant had not mentioned cutting branches. The appellant acknowledged
that omission and added that many of the dry branches had been lying on the
ground or were cut off with a small tool or twisted off by hand. In providing
answers to questions # 9 and # 15 concerning duties performed, the
appellant had not listed berry picking or planting new plants. With respect to
supervisory duties, the appellant confirmed she weighed berries, drove workers
to and/or from work, wrote down amount of pounds of berries, cleaned berries,
recorded hours of work, maintained the payroll sheets and other associated
duties including preparing cheques for signature by Hakam and Rajinder. The
appellant stated she removed berries that were not ripe or were rotten or
otherwise unsuitable prior to dumping them into the large tubs. This sorting
process was undertaken by using a conveyor belt. Counsel advised the appellant
she had not mentioned this task at any stage of the proceedings including at interviews
with HRDC officials, or when communicating with the Appeals Officer. In
response to counsel’s suggestion she was attempting to enlarge the scope of her
duties in order to justify the hours spent, the appellant replied there was
sufficient work to keep her occupied during the course of her employment. The
appellant prepared the payroll record – Exhibit R-8, tab 21 – for
Manjit K. Sidhu indicating Sidhu worked 8 or 8.5 hours a day between May
18 and September 26, 1998. Counsel referred the appellant to the Daily Log –
Exhibit R-1, tab 32 – prepared by her and pointed out the name of Manjit Kaur Sidhu
is not included among the named workers on the numerous sheets. The appellant
stated she realized – at some point – Sidhu had not been included and agreed
she should have remembered to do so but had been under pressure to create that
document in order to satisfy what she understood to have been a requirement
imposed on her by Turgeon. She recalled receiving time sheets ‑ for
Sidhu – from the accountant but did not remember any ROE being issued. Harmit
Kaur Gill prepared her own payroll record – Exhibit R-5, tab 19 – which
indicates she worked only 34 and 36 hours during the weeks of July 5-11, and
July 12-18, respectively. Between June 8 and July 19, there were many days
where she worked only 4 hours and in some weeks worked only 20 hours and 16
hours during the strawberry season when she was working at Lucerne. The appellant stated that even after the strawberry
season had finished, she still worked at the cannery if her services were
required to process products other than strawberries. She completed her own ROE
– tab 18 – with respect to her employment with Gill Farms in 1996 in which
it was stated she had 20 weeks of insurable employment. The ROE at tab 15 was
issued in respect of her 1997 employment. The appellant stated she had not
known the number of insurable hours of employment required to qualify for UI benefits
in 1998.
[17] Harmit Kaur Gill was re-examined by her
agent, Ronnie Gill. She identified a picking card – Exhibit A-1 – that had been
used by Gill Farms in 1998 and stated cards were issued to every worker
classified as “casual” as opposed to any worker paid by the hour. Each time
berries are brought to the scale and weighed, a record is made on the card and
one part labelled “Grower” is retained by Gill Farms and the picker keeps the
other part labelled “Picker” since the same information is recorded on both.
When work is finished for the day, total production is noted on the card. The
appellant stated the hourly-paid pickers used only one part of the card and
could leave them at the scale with some member of the Gill family or take them
home because the purpose was solely to monitor production. All casual pickers
carried their own containers of berries to the scale for weighing, whereas the
hourly workers had their berries collected by Manjit Kaur Gill. The pickers who
were regarded as casual workers often had other jobs and worked a few hours now
and then at their choosing so it was more efficient to pay them on the basis of
pounds picked. In the appellant’s experience, the casual workers tended to pick
more green or unsuitable berries compared to the regular workers who knew how
to choose better berries. During the day, someone from Gill Farms made more
than one delivery to one or more canneries. Even though Gill Farms sent
high-quality berries to a cannery, personnel at a cannery examined each
shipment and determined the grade of the berries and the payment per pound was
based on that assessment. The appellant stated Gill Farms wanted to obtain the
highest price possible and to that end attempted to remove green or unsuitable
berries prior to shipping a load to a cannery. Berries destined for the fresh
market were sold for $1.00 per pound. The price of cannery berries was between 60
to 65 cents per pound and those assigned the lowest grade used for processing were
sold for as little as 20 cents per pound. The appellant stated it was the
policy of Gill Farms to take as much time ensuring high-quality berries were
shipped to Kahlon – a cannery – as if the product were being sent to a
supermarket. Harmit Kaur Gill stated some people phoned the farm to ascertain
if pickers were needed while others just arrived at the field. These pickers
regarded as casual workers performed no other tasks on the farm. The appellant
stated the policy of Gill Farms was to continue to pay the relevant hourly rate
to workers even during a heavy rain provided it was a management decision to
stop picking. However, casual workers were paid only on a piecework basis which
caused them to refuse to pick unproductive bushes and as a result the hourly
workers were assigned that task. Regarding transportation of casual pickers,
the appellant stated individuals would advise Gill Farms one day in advance if
they needed a ride to work. There were 3 breaks from work each day, a 15-minute
pause for coffee/tea in the morning and afternoon and a 30-minute lunch break
and no workers were paid during these periods. If a worker chose to take a
longer lunch break, he or she was not paid until returning to
the field. In the same sense, if permission was granted to a worker to
leave early, that missed time was not included in the hours worked.
The appellant stated she and one other worker operated the electrically-powered
conveyor belt used to sort berries and that the intention – always
– to provide excellent berries culminated in Kahlon – in 2004 – using Gill Farms
berries as an example of the high quality expected from other growers in the
area. Harmit Kaur Gill stated all workers were paid by cheque,
including any advances during the season and all information concerning such
payments and details of hours worked were sent to the farm accountant. In 1998,
the appellant agreed there could have been a cash-flow problem at the time of
the settling-up meetings with workers because Gill Farms had to wait for
payment from one or more canneries and workers could have been asked to delay
cashing their final cheque until notified that sufficient funds were in the account.
However, the financial position of Gill Farms had improved – during the 3 or 4
years prior to 2004 – to the point where that was no longer necessary. In the
appellant’s opinion, Hakam relied on the accuracy of the ROEs prepared by the
accountant and merely signed the form – in her presence – in the appropriate
space. The appellant identified her ROE – Exhibit A-2 – issued by Safeway with
respect to her work at Lucerne. It stated she worked 221 ½ hours and
had $2,466.49 in insurable earnings during the period from June 8 to the pay
period ending July 25, 1998, although her last day of work was July
18. The appellant agreed it was difficult for Manjit Kaur Gill to operate the
farm during her absence while working at the cannery but her daughter – Baljit
– helped Manjit during those times. The appellant was referred to Exhibit R-1,
tab 20, containing a list of employees of Gill Farms and to pp. 112-119,
inclusive, detailing the duties performed by her for Gill Farms during
each of the years 1996, 1997 and 1998. In 1996, she was paid $8 per hour and in
1997 received an increase to $9. Each time the appellant applied for UI
benefits in 1996, 1997 and 1998, she disclosed on the application that her
husband owned 50% of her employer’s business. The appellant stated she did not
seek employment with Gill Farms merely to qualify for UI benefits
since she had worked at the Lucerne cannery 221.5 hours as well as 868 hours
on the farm for a total of 1,084.5 insurable hours in 1998, well above the
threshold for eligibility which according to the table – Exhibit A-3
– printed from the HRDC website was 595 hours in the region where she
resided. In 1997, according to the relevant ROE ‑ Exhibit A-4 – the
appellant worked 179.47 hours for Safeway in addition to her 882 hours
employment with Gill Farms. The print-out – Exhibit A-5 – for the 3 Month
Seasonally Adjusted Unemployment Rate by Region – as highlighted by Ronnie Gill
in yellow – states 595 hours were required to receive UI benefits. The
appellant confirmed she and/or Hakam relied on the ROEs as prepared by the
farm’s accountant and was not aware of having made any errors in recording
workers’ hours of work or otherwise in maintaining payroll records. Unlike the
current policy, entries – in 1998 – were not always made daily although they
were transcribed – from pieces of paper – within one or two days. With respect
to the notes made by Turgeon and Emery – Exhibit R-8, tabs 13 and 14,
respectively – the appellant stated she had no knowledge of the contents
thereof since neither had been read back to her. She reiterated Hakam gave her
instructions concerning duties to be performed the following day and was not
pleased when she left the farm to work at the cannery in order to earn a higher
hourly rate. She stated that in view of her overall responsibilities and the
fact her wage throughout the relevant periods was only one or two dollars per
hour above the minimum wage, her compensation was fair and reasonable under the
circumstances. The appellant referred to two photographs – Exhibit A-6 –
taken recently which illustrated the placement of the nets over the plants. She
pointed out the higher poles and stated some of these need to be stabilized at
the beginning of the season by tamping down the soil around the base or by packing
stones in the hole. Sometimes, the poles are 18 feet high and replacement
holes are dug with a hand tool.
[18] Having regard to the extensive
re-examination, further cross-examination was permitted and was conducted by
Shawna Cruz in the absence of co-counsel Amy Francis. Counsel pointed out
the appellant had offered different versions of the use and form of picking
cards at various times. The appellant stated the current policy at Gill Farms
is to use one card to record production of two employees and cannot recall if
that procedure was followed in 1998. She stated that even when the question is
posed with clear reference to a specific year it is difficult to distinguish
recent or current procedures from those used in earlier years. Harmit Kaur Gill
agreed that within the industry when a row has been picked a worker leaves a
full flat on the ground with his or her picking card inside. However, at Gill
Farms, the card was placed inside a bucket and when the berries were weighed
the card would either be punched or an amount written thereon, although the
majority were punched. The majority of cards were retained by Manjit at the
scale but some workers retained cards on their person and handed the card to
Manjit along with the bucket of berries. The berries were placed into flats
only after they had been weighed. The appellant stated pieceworkers often leave
their cards at the scale because they trust Gill Farms to record accurately
their daily production and do not want to lose their card in the field. Gill
Farms did not follow the practice of instructing workers to pin their picking
card to an item of clothing during the day. The appellant stated that when she
provided estimates of workers in 1998, ranging from 20-25 or from 25-30, these
were to the best of her knowledge. She conceded Surinder Kaur Gill had another
job during the season but was still treated as a worker paid by the hour. The
appellant stated this scenario was more common among the casual pickers.
Counsel suggested that at 32 cents per pound – the rate paid in 1998 – no
pieceworker could earn more than the sum equivalent to the amount based on a
minimum hourly wage. The appellant stated she could not recall the maximum
pounds picked in a day but recalled some workers preferred to be paid by the
pound during high season because they considered that method to be more
profitable. Regarding the inconsistencies surrounding the use of vehicles,
whether one or two, and the methods followed to transport workers, the
appellant stated that as the berry season progressed, additional transportation
was required to take extra workers to and/or from the farm. She accepted there
were some variations in her statements with regard to this matter but added the
composition of the passengers varied from time to time and she was not
inventing the use of another vehicle for the purpose of accounting for the lag
in time or any inconsistency in the number of employees as a consequence of the
thrust of the questions posed by Ms. Francis during cross-examination.
Counsel pointed out the payroll records do not reflect any variation in time
due to prolonged lunch breaks and the appellant agreed that was so, probably
because this would have been a rare occurrence. The appellant recalled
transporting the 12 or 13-year old son of Gurdev Singh Gill and his
wife inside a Gill Farms vehicle even though the child did not pick berries and
remained inside the Gill residence or played during the day while his parents
worked.
Surinder K. Gill
[19] Surinder K. Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2116(EI) – is Exhibit R-7.
[20] The Minister decided the appellant was not
engaged in insurable employment with Gill Farms during the period from July 26
to September 12, 1998 because she was not employed at arm’s length even though
she was not related by blood or marriage to either Rajinder Singh Gill or Hakam
Singh Gill, the partners operating Gill Farms. In the alternative, the Minister
determined the number of insurable hours worked were 114 and that her insurable
earnings were in the sum of $919.98. The appellant’s position is that her ROE –
tab 12 – has stated – correctly – her insurable hours – 260 – and insurable
earnings in the sum of $2,098.20.
[21] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(t) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the Appellant also worked for a
cannery in the Period;
(l) on several occasions, the
cannery's records indicate that the Appellant was working at the cannery on the
same day as the Partnership's records show her working on the Farm;
(m) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(n) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(o) the Partnership issued a Record
of Employment to the Appellant on or about October 9, 1998 indicating
that the first day worked was July 26, 1998 and the last day worked
was September 12, 1998 and that the Appellant had 260 insurable hours
during the Period, with insurable earnings of $2,098.20;
(p) at all times material hereto,
the Appellant was not dealing with the Partnership at arm's length;
(q) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm's length;
(r) the Appellant actually worked no
more than 114 hours during the Period;
(s) the Appellant was paid at a rate
of $7.50 per hour plus 7.6% holiday pay; and
(t) the Appellant's earnings in the
Period were $919.98.
[22] The appellant stated she was born in India in 1952 and came to Canada
in 1975 with her 4 children, 3 sons and one daughter. She is not related to any
of the Gill family connected with Gill Farms. Her husband died 9 years ago and
she has picked various types of berries and done other farm work since 1975.
She is currently employed by the Lucerne cannery where she began working on a
part-time basis in 1980. She also worked the night shift at a cannery in Haney
while working at another cannery job. She stated it had been necessary to earn
as much income as possible in order to support the family since her husband did
not make enough money. At Lucerne, she worked with blueberries,
strawberries, raspberries and then vegetables near the end of the growing
season. She was laid off after the sprout season was finished. Each year, she
collected UI benefits based on her seasonal work. The appellant stated her
recent state of health is poor and that the last 9 years have been difficult
for her but she had to continue working notwithstanding her condition. She
recalled attending an interview – at the Abbotsford HRDC office – even
though she had a headache and felt dizzy because she believed her UI benefits
would be stopped if she failed to appear. The appellant stated Turgeon
interviewed her in a small room – without windows – took her photograph and
instructed her to answer certain questions. Ronnie Gill referred to Turgeon’s
notes of said interview – at tab 9 – conducted on January 19,
1999. The appellant stated she was never informed of her right to terminate the
interview if she chose and that a tape recording device was placed on the desk
between herself and Turgeon. She was able to communicate through Jugender, a
Punjabi-speaking interpreter. She stated she can understand some English but
has had limited opportunity in her life to be exposed to it and cannot read nor
write English although she can read and write Punjabi. The appellant agreed
Turgeon may have read back – to her – the interview but cannot recall the
event. With regard to her working career, the appellant stated she
worked mainly with Indo-Canadians at the canneries and found it
difficult to locate work during the off-season since employers at
nurseries and greenhouses wanted to hire younger workers. The
appellant identified an ROE – tab 3, p. 34 – pertaining to her
employment at Townline Growers (1999) Ltd. (Townline) from May 12 to May 30,
1998 and to an ROE – tab 3, p. 34 – issued by Safeway in respect of her
employment at Lucerne from June 6 to August 3, 1998. As a result
of working these two jobs, she had 475.75 hours of insurable employment prior
to starting work at Gill Farms. The appellant stated the hoeing work at
Townline – after the sprout season had finished – was too difficult for her so
she waited at home for a week prior to starting work at the cannery. The
appellant stated she worked at the cannery with Harmit Kaur Gill who had
mentioned Gill Farms needed blueberry pickers and on July 26, 1998, the
appellant started work there as a picker. She stated the cannery job paid $15
per hour – double her wages as a farm labourer – and she preferred to work at Lucerne as much as possible, usually during a night shift.
Since the cannery needed a supply of berries in order to operate,
a list was posted each day if workers were required the day
following. If her name was not on the list, she would telephone the office to determine
whether she was needed. Surinder K. Gill stated that if she had not worked for
Gill Farms – in 1998 – she would have found work elsewhere. As disclosed by 3
separate ROEs – tab 3, pp. 26-28, inclusive – she worked at 3 jobs in
1999, two at Lucerne and one at Townline. She stated her normal
practice was to work as much as possible during berry season as that period
presented the only opportunity to earn income as no jobs were available during
the winter. After her layoff from Gill Farms, she applied for UI benefits – tab
13 – on September 18, 1998. The appellant stated she cannot recall having
performed any work at Gill Farms except picking berries. She stated she had
performed the work as stated on her ROE and had been paid accordingly. With
respect to disclosure of banking statements, the appellant stated she had
referred to two accounts in two different branches of the Bank of
Nova Scotia (Scotiabank) but was able to produce statements – tab 16 – only
from the Clearbrook Station branch in Abbotsford. She stated another account –
on Townline Road in Abbotsford – had been closed 2 years earlier
and an East-Indian bank employee had advised the bank could not provide her
with copies of transactions during 1998. The appellant recalled the account had
been a savings account which allowed her to write cheques.
[23] The appellant – Surinder K. Gill – was cross-examined
by Shawna Cruz. The appellant agreed she had undertaken – at Discovery –
to provide statements from the Scotiabank Townline branch but had not done
so. Regarding her interview with Turgeon, counsel referred to the notes –
Exhibit R-7, tab 9, p. 53 – wherein Turgeon wrote "Claimant took
a break from interview – has high blood pressure". The appellant agreed
that notation may be correct but has no current recollection of that event. In
providing answers to questions, the appellant stated she attempted to do her
best but admitted she may have been mistaken with respect to small details such
as the number of workers at the farm. She stated she was nervous and
upset during the interview and may not have told Turgeon about some
aspects of her employment. The appellant identified her
signature on the Questionnaire – tab 6 – dated February 23, 2000 that had been
completed on her behalf by Ronnie Gill and returned to Revenue Canada. She considered her answers therein to have been
truthful. In India, she completed 4 grades of schooling and did not have any
opportunity to further her education after coming to Canada,
except for attending English as Second Language (ESL) classes for 4 weeks. In India, she did housework as women traditionally did not
work in the fields. The appellant stated because she has been regularly
employed on a seasonal basis for 30 years, she had relied on UI benefits
following each layoff. Concerning her hiring at Gill Farms, the appellant
stated she had spoken about a picking job with Harmit Kaur Gill at the cannery
since they sometimes worked the same shift but there was no date fixed for her
to start. Instead, she went to Gill Farms after working a night shift at Lucerne cannery, even though – probably – it was after 10:00
a.m., because she knew the farm needed pickers and would be pleased to have
another worker, even for less than a full day. On occasion, she telephoned the
farm from her residence to find out if her services were needed. Although she
currently works at only one job, the appellant stated she was able to get by on
2-4 hours of sleep – in 1998 – because she was younger and that situation
persisted only for a brief period during the summer. Although there was no
fixed work schedule for her at Gill Farms, the appellant stated she was
satisfied she could stay there until the end of the season. With regard to
daily production, the appellant stated she was capable of picking 200-300
pounds of berries per day, depending on the abundance of the crop. However, she
had taken notice that some people picked only 100 pounds in a day. While
working at Gill Farms, she drove her own car and did not have a
recollection as to the manner by which other workers arrived, perhaps because
her start time differed, on occasion. She stated she never picked alone nor did
she recall starting work before any other picker. She could not recall any
fixed quitting time but left work early only if she had to report to the
cannery to commence a shift that had been assigned to her the previous day. The
appellant stated the peak season usually lasts two or three weeks. Counsel
referred the appellant to her time sheet – tab 14 – prepared by Harmit Kaur Gill
and to the photocopies of time cards – tab 15 – issued by Lucerne and to the last card – on p. 66 – in respect of
August 6, 1998. According to the entries thereon, the appellant worked a total
of 7.5 hours at the cannery, starting at 11:30 p.m. and ending at 7:25
a.m. and it appears she also worked 8 hours that day for Gill Farms if the
entry in the time sheet – tab 14 – is correct. The appellant stated those
records were correct and that she was capable of working those hours. She went
home from the cannery, ate breakfast, had a brief rest and reported to
Gill Farms where she picked berries until 6:00 p.m. and then drove back
home. According to the card for August 13, 1998 issued by Lucerne – tab 15, bottom of p. 67 – the appellant
worked a total of 5 hours between 3:00 a.m. and 8:00 a.m. and then worked 8
hours at Gill Farms, according to the entry for that day on her payroll record.
The appellant stated she assumed the information on the sheets is correct and
although she cannot recall – specifically – that event, may have gone directly
to Gill Farms after finishing work at the cannery since it is only a 20-minute
drive. The drive from her home to the cannery took about 10 minutes and the
trip from Gill Farms to her house usually occupied 15 to 20 minutes. Counsel
referred the appellant to p. 68 – tab 15 – concerning her work at the
cannery – on August 14, 1998 – for a total of 6 ¼ hours from 7:00 p.m.
to 1:20 a.m. and to the entries for August 14 and August 15 made by Gill
Farms indicating she worked 8 hours on each of those days. The
appellant was shown the time card for August 15 – tab 15, middle of p. 68
– issued by Lucerne indicating she worked the dayshift from 9:30 a.m.
until 5:00 p.m. as well as the entry for the same day on the Gill Farms
payroll record indicating she had worked there for 8 hours. The appellant
stated the record of Gill Farms is not correct with respect to that day. She
was accustomed to noting her farm work hours on a calendar and accepts that an
error can occur when someone is preparing a time sheet. She recalled one
instance where a time sheet incorrectly indicated she had worked at Gill Farms
on a certain day while she was still in England.
She stated she retained her own record of hours worked until the settling-up
meeting – in order to ensure she would be paid the correct amount – and
provided it to one or more members of the Gill family for purposes of review.
Counsel suggested she handed over her calendar to the Gill family indicating
the dates she had worked at the cannery so they could assign her hours into
spaces within a time sheet that would not conflict with her working time at Lucerne. The appellant denied that was the case and stated
she trusted the timekeeping system used at the cannery where her time card –
used to punch in and out of work – was verified by a foreman. She commented
that the methods used by small farms to record hours were not always reliable –
for example suspending working time during a mechanical breakdown – so had made
it a practice to keep her own record. Turning again to the Lucerne time
card – tab 15, p. 68, bottom – for August 20, 1998, and to the Gill Farms
record – tab 14 – for the same day, counsel pointed out the appellant had
worked 4 ¾ hours at Lucerne from 7:00 p.m. to 11:39 p.m. after apparently
working an 8-hour shift at Gill Farms. Counsel suggested it was not reasonable
for someone to work those hours since it left little time for sleep and/or
rest. The appellant replied she was able to maintain that schedule – in 1998 –
as she was accustomed to working long hours during the farming season. The
immigration stamp on the photocopy of the appellant’s passport – tab
17 – indicates she arrived in Stansted,
England on September 1, 1998. The appellant
stated she went there for the wedding of a close relative but stayed only one
week since she needed to return to work. Counsel pointed out she was laid off
about one week later on September 12. As mentioned earlier by the
appellant during her testimony in direct examination, the record made by Gill
Farms indicated she had worked 8 hours on September 1 and 8 hours
on September 2. The appellant responded by referring to subsequent entries
on said time sheet which indicated she had been away from work for 7
consecutive days. She stated she worked 8 hours each day from September 10
to 12, inclusive and was laid off. She could not recall the nature of the work
done during these last 3 days and even while picking berries during the summer
did not know the names of fellow workers who were referred to as “Uncle” or
“Auntie” – if they were older – or as “Sister” if they were peers. She recalled
a husband and wife worked together and that a worker had his or her own row of
berries to pick. She agreed – at Discovery – she provided the name of
Gurdev Singh Gill as someone with whom she had worked. In her opinion, she
worked with between 25 and 30 people each day and conceded she told
Turgeon there were about 20 workers on site and that in answering the
Questionnaire – tab 6, Q. 39 – she had estimated there were 25‑30 workers
employed at Gill Farms. The appellant stated she believed that answer was
correct despite having provided another estimate – earlier – to Turgeon. She
stated various persons fulfilled the role of supervisor at Gill Farms and tea
and sweets were provided to workers by someone from the Gill family. Since some
Gill family members had employment away from the farm, Surinder K. Gill
stated they helped out after returning home or during their days off. She
recalled seeing Harmit Kaur Gill and Manjit Kaur Gill
frequently as well as Rajinder Singh Gill who – unlike his brother,
Hakam – was not employed off the farm in 1998. She observed the Gill brothers
and their wives occasionally picking berries. Concerning lunch breaks, the
appellant stated some older workers took a bit longer – up to 45 minutes –
while the younger ones adhered to the 30-minute allotted time. She picked
berries by using a small bucket tied around her waist in which to place
berries, if picking while standing. If squatting or bending down to harvest
berries near the bottom of plants, she put the berries into buckets or flats
which was an acceptable method since – in comparison with raspberries – they
are not susceptible to damage by being squashed. The flats were piled in one
place where she could walk over and obtain an empty one or they were placed
somewhere along a row by a Gill family member. She transferred berries from her
bucket to a flat and did not share that container with any other worker. When a
flat was full, another full one was placed on top and a female member of the
Gill family carried them to the scale. The male workers – including Hakam –
carried 4 flats at once. The appellant stated she also poured berries from
her small bucket into a large pail which she carried – often – to the weighing
station where Harmit Kaur Gill or one of her children operated the scale and –
presumably – recorded the weight. The appellant stated that although she was
paid an hourly wage, she received a picking card which she took home now and
then if she was in a hurry to leave work and no member of the Gill family was
at the weighing area. She was handed a card each morning and identified the
card – Exhibit A-1 – as the type she used and stated different farms used cards
of different colours. During the day, she kept the card on her person but only
one part – of the duplicate card – was punched to record her berry production.
The appellant recalled a telephone interview with Rai and was referred to Rai’s
typed notes at tab 5. Counsel pointed out there had been no mention of a
picking card until Rai had reminded her that she had already discussed – with
HRDC officials – the use of said cards. The appellant replied she had wondered
why such an interview was taking place and conceded she had trouble recalling
some details concerning her employment. She was paid by cheque and identified
the ones at tabs 10 and 11, respectively. The first cheque – dated
September 30, 1998 – was in the sum of $1,363.51 and was endorsed by her
and deposited into her Scotiabank account on October 5, 1998. The other – dated
September 14, 1998 – was in the sum of $570.50 and was negotiated – on
September 15 – when the appellant endorsed it and received cash, as noted
by the teller on the reverse. The appellant stated it was not unusual to obtain
cash for pay cheques including those issued by the cannery. The ROE – tab 12 –
issued to the appellant was dated September 24, 1998, 6 days prior to
receiving her final pay cheque. Surinder K. Gill explained it was common within
the berry farming industry for an ROE to be issued to a worker prior
to handing over the final pay cheque. Counsel referred the appellant to
her application – tab 13 – for UI benefits and pointed out it was
dated September 18, 1998, two days before receiving her ROE.
However, the tick mark – question 31 – on said application indicated the
appellant was not attaching an ROE from her employer although in answering
question 32, the identity of Gill Farms was disclosed together with the
start and end dates of her employment. The appellant cannot recall the reason
for the delay between her layoff on September 12 and September 30, when
she received her final pay cheque. She was paid $7.50 per hour together with
7.6% holiday pay. The appellant stated her first day of work at Gill Farms
was July 28, 1998, even though the ROE indicated that date was July 26.
Counsel suggested the number of insurable hours – 260 – stated in her ROE was
inflated. The appellant responded she no longer had her own record of hours to
compare with the time sheet prepared by Gill Farms. During the settling-up
meeting at the Gill residence, she handed over the calendar on which she had
recorded her hours and Harmit Kaur Gill informed her the final cheque
would be prepared. Manjit Kaur Gill was also at the meeting. The
appellant stated Gill Farms was a good place to work – in 1998 – and that
she had enough insurable hours from her other two jobs to qualify for UI
benefits. In 1999, her employment at Lucerne and Townline
permitted her to work enough insurable hours to become eligible for UI benefits
following layoff, although the pay for the Townline job was barely above the
minimum wage.
[24] Surinder K. Gill was re-examined by her
agent, Ronnie Gill. The appellant stated she was aware holiday pay had been
included in her pay, as well as the amount attributable to working on a
statutory holiday. She recalled working on a mushroom farm for Safeway in 1998.
The ROE issued – tab 3, p. 36 – indicated her last working day was August 3
whereas she had stated earlier in her testimony that she worked for that
employer until August 28. The appellant stated she would not notice mistakes in
dates or amounts within documents such as ROEs but assumed that particular one
was correct since she had been paid in full for her work. Ronnie Gill
referred the appellant to her time cards – tab 15 – from Lucerne and advised her that a calculation had revealed there
should have been an additional 52 hours included in the ROE issued by
Safeway. The appellant responded it had always been her intention to work as
many hours as possible during a growing season even if it meant working at
three jobs.
Harbans Kaur Khatra
[25] Harbans Kaur Khatra testified in Punjabi
and the questions and answers and other aspects of the proceedings were
interpreted and/or translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The respondent’s book of documents relevant to this
appeal – 2001-2120(EI) – is Exhibit R-4. The Minister decided the appellant was
not employed in insurable employment with Gill Farms during the period
from July 12 to September 26, 1998, because she was not dealing with that payor
at arm’s length. In the alternative, the Minister determined that if said
employment was found to be insurable, the appellant had worked 254 insurable
hours and had insurable earnings in the sum of $1,981.20. The appellant’s
position is that the ROE – tab 14 – is correct in stating she worked 652 insurable
hours and had insurable earnings in the sum of $5,085.60.
[26] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about October 7, 1998 indicating
that the first day worked was July 12, 1998 and the last day worked
was September 26, 1998 and that the Appellant had 652 insurable hours
during the Period, with insurable earnings of $5,085.60;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm's length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm's length;
(p) the Appellant actually worked no
more than 254 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 4% holiday pay; and
(r) the Appellant's earnings in the
Period were $1,981.20.
[27] Harbans Kaur Khatra testified she was born
in Punjab, India and emigrated to Canada
in 1997. She holds the status of landed immigrant. After coming to Canada, she worked for the Virk family as a farm labourer
performing various tasks including pruning and also picked raspberries and
blueberries. In 1997, she worked picking blueberries at Gill Farms and returned
for the 1998 season. She stated she was paid an hourly rate by Gill Farms
and had been paid on the same basis during her earlier employment at the
Virk farm. She recalled the interview at the HRDC office – conducted by Emery
on January 19, 1999 - and that Emery – with consent – had taken her picture.
The appellant recalled Paula Bassi, an HRDC employee – fluent in Punjabi –
was also present. The appellant stated the interview room was small and
although she had attended with her brother-in-law, he did not participate in
the discussion with Emery. Emery’s notes of the interview are at tab 8.
The appellant stated she was scared during the interview but did not request a
break nor did she object to Emery’s manner of questioning. With respect to her
employment at Gill Farms, the appellant stated she also worked sorting
berries – a task easier than picking – which she appreciated because she had
suffered a back injury in a scooter accident while living in India. While working at the Virk farm – in 1997 – she
worked nearly every day throughout the season and kept her own record of hours.
While employed at Gill Farms, she received 3 or 4 cheques and was paid in
full for any remaining wages following the end of the season. The payroll
record – tab 15 – indicated the appellant had worked on August 3,
1998, a statutory holiday in British Columbia, as well as September 7, 1998, Labour Day.
Harbans Kaur Khatra stated she was not aware of the proper rate required to be
paid by employers for these holidays but considered it to be about one and
one-half times her regular hourly pay of $7.50. She stated she is a proficient
picker – up to 400 to 450 pounds per day – and if paid at the usual piecework
rate can earn as much as $150 per day – even during the slower parts of
the season – so it is in the employer’s interest to pay her by the hour. She
preferred to harvest berries from the new varieties of plants since they were
easier to pick. The time sheet indicated the appellant worked every day during
her employment at Gill Farms and she was satisfied she had been paid in full
for her work. Currently, she takes care of her infant granddaughter and only
picks berries on weekends on a piecework basis.
[28] Harbans Kaur Khatra was cross-examined by
Shawna Cruz who referred her to tab 5, the two typed pages containing answers
to the Questionnaire sent to her by Bernie Keays, Appeals Officer. The
appellant stated she could not recall the circumstances surrounding the
provision of those answers but her responses were recorded by Luckie Gill,
sister of Ronnie Gill, her agent in these proceedings. The appellant stated she
attempted to answer the questions truthfully. In India,
she worked inside the house, and the only farm work she performed was caring
for and feeding the cows. She attended Grade 4 or 5 in India
and cannot read English nor write it except for her signature. With respect to
the number of hours required to qualify for UI benefits, the appellant stated
she had been aware of the exact amount at one point but estimated it to have
been around 700. She recalled giving evidence at Discovery on November 15,
2002, where she had stated she thought 900 insurable hours were required
to qualify for UI benefits. The appellant stated the Virk family decided to use
a berry picking machine in 1998. She found out from her friend – Jarnail Singh
Sidhu – who worked for Gill Farms that they had good berries. Counsel referred
the appellant to answer # 3 – tab 5 – that "[M]y relative found
the job and took me to the farm". The appellant replied she was not
related to Sidhu. She stated she spoke to Hakam Singh Gill and was hired to
pick berries on the understanding she would be paid by the hour. In 1998, the
appellant lived in Aldergrove, located about 10 or 15 minutes from the
Gill property. She stated one of the Gills – mostly Manjit, but also
Harmit or Hakam, if it was his day off – picked her up in the morning either in
a green car or a “sort-of truck” that could carry 7-10 passengers, about 3 or 4
more than the car. She rode with Jarnail Singh Gill and Gurdev Singh Gill
and his wife but cannot recall the names of other passengers. Usually, she was
picked up at 8:00 a.m. but if it was any earlier she would still be ready
because a member of the Gill family would have telephoned her to advise of the
change. When she was picked up, there were other workers in the vehicle and the
ride from her residence to Gill Farms took between 10 and 15 minutes. She
usually went home in a Gill vehicle but her son sometimes picked her up. She
stated all the workers did not leave at the same time since there were
basically two groups, one from Aldergrove, the other from Abbotsford. Because
she lived nearby, sometimes either Harmit or Manjit would tell her "Sister,
keep on working and we will take you home later". The appellant stated she
worked every day throughout her employment with Gill Farms but did not work
when it was dark and was home in time for her evening meal. Even when it rained
heavily, she kept on picking because she had proper raingear and footwear
although other workers usually stopped and waited for it to either quit or
ease. She did not wear a watch but recalled there were short beverage breaks in
the morning and afternoon and a longer break around noon. One of her duties was
to sort berries on a belt-driven machine located near a house and she cleaned
away debris and unsuitable berries in order to ensure the remaining ones were
of high quality. The sorting and cleaning procedure did not occupy a full day
of her time and was undertaken when a sufficient amount of berries had
accumulated. Other than picking, she performed tasks such as taking down the
nets from the poles at the end of the season and washing tubs and lugs and
spreading what she considered to be sawdust (bark mulch) around plants. She
also used a sickle to cut some grass and performed some light pruning. Upon
being hired, her first task was to pick berries as the nets were already
installed at that time. The appellant stated she usually worked with between 10
and 15 people but sometimes there were more. She remembered working with
Santosh Kaur Makkar and Gurdev Singh Gill and his wife but cannot recall if
they had started before her or afterwards. She stated the bushes were quite
tall and it was difficult to see people unless they were nearby. Manjit was her
supervisor and picked berries – on occasion – at various locations and
deposited the berries into the container of the nearest worker. In her opinion,
Manjit was inspecting the bushes to see if some ripe berries had been left by a
picker. The appellant stated Harmit also wandered around the picking area and
sometimes brought tea to the pickers. Hakam also walked around – as did
Rajinder – and she was aware Hakam had a job off the farm. During several days
– perhaps one week – needed to take down the nets, she recalled working with
both Makkars, and two females, Jaswinder and Pawandeep, as well as with Manjit
Kaur Gill. The nets had to be rolled up for purposes of storage during the
off-season. The appellant could not recall the amount of time required to
complete the pruning and stated she spread sawdust by using a bucket to carry
that material where it was needed. She was unable to provide an estimate of the
time needed to wash the containers but stated that was probably the last task
performed prior to layoff. The appellant agreed she had provided some answers
previously that were different than others with respect to the same subject
matter but stated she found it somewhat difficult to recall small details. In
relation to the picking procedures, she confirmed she used a small bucket tied
around her waist to hold berries until she emptied it into a larger plastic
container located nearby. When that container was full, a member of the Gill
family took it to the scale to be weighed. The appellant stated she never used
a picking card and had estimated her daily production by counting the number of
full buckets picked since each contained 25 pounds of berries. Her small
waist bucket held 5 pounds and she also kept track of the number of times it
was filled during the day by writing down numbers on the back of her hand,
using a blueberry as a pen and the juice as ink. Her picking style involved the
use of both hands simultaneously and during peak season the berries from only 4
or 5 branches could fill up the small bucket. The written answer to Q. 41 of
the Questionnaire – tab 5 – was "Yes" indicating the appellant used "a
picking card for every day of work". The appellant stated that answer is
not correct and pointed out the answer – to Q. 40 – "didn’t have any"
was in response to the question "[W]hat did you use the picking card for?"
Counsel referred the appellant to the typed notes – tab 4 – made by Harby Rai
of their telephone conversation on August 16, 1999, that she "was not
given a picking card or [sic] does not known if anyone esle [sic]
had picking cards". Rai also noted the appellant stated "she did not
see a weighing scale on site". The appellant stated there was a weighing
scale and does not recall having said otherwise when speaking to Rai. She also
stated she recalled saying – at some point – she had seen picking cards in the
area where the cleaning/sorting conveyor belt was located. The appellant
identified the photocopy of cheque # 0505 – second from top, p. 47, tab 9
– dated October 26, 1998 – in the sum of $1,828.04 – which she deposited to her
account at the Aldergrove Credit Union on November 14, 1998. She also received
cheque # 0501 – bottom of p. 49, tab 10 – dated October 24, 1998 – in
the sum of $1,600 – which she deposited to her credit union account on November
2, 1998. She stated she did not have a vehicle and that may have caused the
delay in cashing cheque # 0505 even though it was reasonable to assume
cheque # 0501 had been written first. She stated she could not recall why
the cheques were written nearly a month after her layoff. She identified
cheque # 0492 – second from bottom, p. 51, tab 11 – dated
October 22, 1998 – in the sum of $734 – which she deposited to her
account on October 23, 1998. She explained a cheque was cashed quickly –
sometimes – if her son needed money. She received cheque # 0426 – second
from bottom, p. 53, tab 12 – dated August 9, 1998 in the sum of $200
which was not deposited until August 29. Counsel referred the appellant to
the statements – tab 1 – of the activity on her account at Aldergrove
Credit Union operated jointly with her son – Satwinder Singh Khatra – and ‑
specifically – to the entry for 981112 (November 12, 1998) – on p. 8 –
indicating there had been a withdrawal in the sum of $2,000. Counsel pointed
out that on November 14, 1998 there was a deposit to said account in the
sum of $2,024.04 which probably included the cheque from Gill Farms in the sum
of $1,828.04. Counsel suggested to the appellant that she had withdrawn the sum
of $2,000 in order to pay that amount to a member of the Gill family prior to
receiving her final pay cheque. The appellant denied that suggestion and stated
the cash was required to purchase some furniture and for regular living
expenses. Counsel referred the appellant to entry 981023 (October 23,
1998) indicating a deposit in the sum of $1,533.07 and to entry 981029 (October 29,
1998) showing a cash withdrawal in the sum of $2,000. Counsel referred to other
withdrawals of cash totalling $4,500 in a two-week period from the end of
October to the middle of November. The appellant stated she paid her rent in
cash and had moved to a new residence on October 31 and needed to buy some
furniture. During the HRDC interview – tab 8 – at p. 45 of the notes made
by Emery the Question posed was whether the appellant had paid cash back to the
Gills in exchange for an ROE. The record of her answer was "no she did not
pay for it as far as she knows; actually, my brother-in-law looks after these
things – I can’t read". The appellant stated she had intended to tell
Emery that while she had not paid back any money, she was assisted by her
brother-in-law with regard to many business matters. Harbans Kaur Khatra
identified her October 22, 1998 application – tab 14 – for UI benefits.
She recalled someone assisted her to complete the form and that she used the
address of Gill Farms as the place to contact her – by mail – since she was
about to move to a new residence. The appellant stated the time sheet – tab 15
– was accurate and that she worked either 8 or 9 hours every day. When her
son picked her up, he arrived at the farm between 4:30 and 5:00 in the
afternoon. Sometimes, she started work a bit later in the morning and worked an
extra hour or so in the late afternoon. Because she lived only a few minutes
from the farm, it was no trouble for either Harmit or Manjit to come and get
her in their car. The appellant stated she was able to get by with only 4 hours
sleep per night. She recalled receiving a call from a member of the Gill family
advising they were ready to settle up and to issue her final pay cheque. She
confirmed her testimony – at Discovery – that her son drove her to the farm and
came back later to take her home and that the settling-up was handled – personally
– by Manjit Kaur Gill. She received her ROE – perhaps after receipt of the
final cheque – and was informed by either Manjit or Harmit that she had
sufficient insurable hours to qualify for UI benefits and her son drove
her to the office so she could submit her application.
[29] The appellant – Harbans Kaur Khatra – was
re-examined by her agent, Ronnie Gill. The appellant stated she was accustomed
to using cash to make purchases and did not write cheques. She paid rent – $450
per month – in cash and bought furniture for their new place in Surrey. The
appellant was referred to entry 980429 (April 29, 1998) on p. 6, tab 1,
indicating a cash withdrawal in the sum of $700 and to entry 980529 (May 29,
1998) on p. 7, showing a withdrawal of $500 in cash. The appellant stated such
a sum is "nothing and is gone within a couple of days". The appellant
confirmed the balance in her account on October 7, 1998 was over $4,000 and
that she had not repaid any amount to any member of the Gill family in respect
of her employment at Gill Farms. She stated she had worked very hard to
earn her money. The appellant stated she had not held off negotiating any
cheques received from Gill Farms during that relatively short period.
Gyan Kaur Jawanda
[30] Gyan Kaur Jawanda testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2125(EI) – is Exhibit R-12.
[31] The Minister decided the appellant’s
employment with Gill Farms during the period from May 25 to September 26, 1998,
was not insurable because she was not dealing with the payor partnership at
arm’s length. However, in the event the employment was found to be insurable,
the Minister determined the appellant worked 333 insurable hours and had
insurable earnings in the sum of $2,597.40. The appellant’s position is that
she worked 942 insurable hours and had insurable earnings in the sum of
$7,347.60 as stated in her ROE at tab 12.
[32] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about October 7, 1998 indicating
that the first day worked was May 25, 1998 and the last day worked
was September 26, 1998 and that the Appellant had 942 insurable hours
during the Period, with insurable earnings of $7,347.60;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 333 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 4% holiday pay; and
(r) the Appellant's earnings in the
Period were $2,597.40.
[33] Gyan Kaur Jawanda testified she was born in
India and came to Canada in 1998.
Her first job was working at Gill Farms. After starting, she
helped put up nets, did some hoeing, removed grass and trimmed
away dead branches. Later, she picked berries nearly every day. She recalled
the interview with Emery on January 19, 1999 at the HRDC office in Abbotsford. Paula Bassi
was the Punjabi-speaking interpreter. She stated the information contained in
the notes – tab 7 – was correct to the best of her knowledge. She also recalled
the circumstances relevant to a discussion – on July 30, 1999 – in her own
residence between herself and Harby Rai. The appellant’s daughter –
Baljit Kaur Jawanda – was present throughout. In the typed notes – tab 3 –
Rai recorded certain answers provided by the appellant including one where she
had recalled not seeing anyone else weeding or pulling grass, adding it was a
small farm and if there had been other workers performing that task, she would
have seen them. Rai also noted the appellant’s comment that she had picked
blueberries by herself for the first 20 days and that during peak season
there was about 30 workers at Gill Farms. The appellant denied making those
statements. She stated she does not remember the amount of berries picked each
day but was paid by the hour. Rai’s notes – tab 3, p. 29 – indicate
the appellant stated she was paid $7.15 per hour for tasks such as weeding,
cleaning, putting up and taking down nets and washing pails but was paid by
piece rate for picking berries, although she did not know the amount of said
rate. The appellant was referred by Ronnie Gill to Emery’s notes – tab 7,
p. 43 – of the January 19, 1999 interview and to her answer that
she was “paid by hourly rate, $7.50/hr.". The appellant
identified cheque # 0511 – tab 8, top of p. 47 – dated October 26, 1998 – in
the sum of $2,000 – which she deposited – on November 19 – to her account at
Khalsa Credit Union. She also recalled receiving cheque # 0504 – top of p.
49, tab 9 – dated October 24, 1998 – in the sum of $582.21 – which she
deposited to her Khalsa account on November 16, 1998. The appellant was
referred to deposit slips – tab 11, p. 53 – relating to deposits to her account
on November 23, 1998, of three amounts for a total of $2,863.99 and to a
photocopy of a cheque issued on the Gill brothers’ farm business account dated
October 30, 1998 – p. 56 – in the sum of $3,657.33, that had been negotiated by
the appellant at Khalsa on December 23, 1998, when she made a total
deposit of $4,145.33 and withdrew $3,500 in cash. The appellant stated she used
the cash for household expenses and bought a computer for one of her children.
In 1998, she was living in the home of the daughter who had sponsored her
immigration to Canada. Concerning the delay in cashing
the pay cheque, the appellant stated she may have forgotten about it for
a while or – perhaps – had waited for one of her children to do the banking
transaction. She shared the Khalsa account with her daughter –
Gyan Kaur Jawanda – and a statement – tab 15, p. 66 – disclosed
withdrawals of $1,600 and $2,800 in cash on December 2, 1998 and
December 4, 1998, respectively. The appellant stated she had been a
widow for many years and arrived in Canada in January,
1998 with three children, ranging in age from 14 to 17. She has 3 other
daughters and one son. In India, her husband owned a brick making business
but she had worked only inside the home.
[34] The appellant – Gyan Kaur Jawanda – was
cross-examined by Shawna Cruz who referred her to answers at Discovery – on February
12, 2003 – where she stated she had been hired by Harmit Kaur Gill. The
appellant was also advised that in the notes – tab 7, p. 42 – taken during the
interview on January 19, 1999 at the HRDC Abbotsford office, Emery recorded the
appellant’s answer that she was hired by Manjit K. Gill. The response to Q.3 of
the Questionnaire – tab 4 – asking who had hired her for the job was "Hakam".
The appellant stated she knew it was someone from the Gill family who had hired
her. Counsel read out her answer – at Discovery – that she had been paid
on a hourly basis for putting up the nets but did not know the method of
payment for picking berries and that she accepted whatever basis was used by
Gill Farms. The appellant stated she thought she was paid on an hourly basis
for picking berries but agreed her wages may have been calculated by the pound.
The appellant stated that although she was hired on May 25, 1998, her first
week of work was spent picking strawberries on another farm and assumed the
Gill family had loaned her out to said farm. She recalled being driven to work
by a member of the Gill family, usually Harmit or Rajinder. When referred to
various answers in the Questionnaire – tab 4 – concerning transportation to
work and to some other inconsistencies, the appellant stated she was not paying
much attention to which family member drove the vehicle or to the number of
passengers. Counsel pointed out to the appellant that Rai’s notes – tab 3, p.
28 – indicate she told Rai she had been picked up by "Rajinder in the big
pick-up truck, the one that transports berries" and that she was the only
one passenger. According to her time sheet ‑ tab 14 – the
appellant did not work on any Sunday until June 28 when she began working 7 or
8 hours per day, 7 days a week until her layoff on September 26, 1998. The
appellant stated it was difficult to work that hard without a break but had
managed to do so even though she was 51 in 1998 and had not been employed
anywhere before starting work at Gill Farms. Counsel referred the appellant to
an answer – at Discovery – that she operated a joint account with her daughter
because her poor health did not permit her to do banking on a regular basis. In
view of that, counsel asked how she could work every day for nearly 3 months.
The appellant replied that the work had to be done in order to earn a living
but errands can be handed over to someone else. Counsel advised the appellant
Harby Rai had recorded – tab 3, p. 28 – the appellant’s answer that she
“would work 4 to 5 days and then have a day to rest” whereas the time sheet
indicated she worked 6 days a week until berry season started and every day
thereafter. The appellant stated she did not recall details of transferring
berries to be weighed but knew the farm owners wanted to know the amount of
berries picked by a worker during a day. She acknowledged she had not kept her
own record of hours worked and that from the end of May to some point in
August, she had been paid only $200. The appellant denied having paid any money
back to the Gill family in respect of her employment at Gill Farms. When asked
about that matter during the HRDC interview, Emery’s notes – tab 7, p. 46 –
recorded the response to the question whether she knew if money was paid to the
Gills in return for weeks (ROE) as "she doesn’t know – her daughter would
know – she doesn’t really know what ROE is or is for". The appellant
stated her brain was not functioning properly during the interview but was
emphatic that "no one works and then gives money back".
[35] The appellant – Gyan Kaur Jawanda – was
re-examined by her agent, Ronnie Gill. The appellant stated that when
questioned about her health – at Discovery – she was speaking of her condition
in 2003 because she had not worked since 2000 but had been much healthier in
1998 and 1999. She recalled the interview with Rai on July 30, 1999 took place
just after she had returned from working since 6:30 a.m. and was tired as a
result.
Himmat Singh Makkar
[36] Himmat Singh Makkar testified in Punjabi
and the questions and answers and other aspects of the proceedings were
interpreted and/or translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The respondent’s book of documents relevant to this
appeal – 2001-2121(EI) – is Exhibit R-9.
[37] The Minister decided the appellant’s
employment with Gill Farms from August 2 to August 28, 1998 was not insurable
because he was not dealing with the payor at arm’s length. In the alternative,
the Minister determined the appellant had worked 72 insurable hours and had
insurable earnings in the sum of $599.04. The appellant’s position is that he
started on August 3, 1998 and worked 160 hours and had insurable earnings of
$1,381.20, as stated in his ROE at tab 12.
[38] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about September 14, 1998
indicating that the first day worked was August 3, 1998 and the last
day worked was August 28, 1998 and that the Appellant had 160
insurable hours during the Period, with insurable earnings of $1,331.20;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 72 hours during the Period;
(q) the Appellant was paid at a rate
of $8.00 per hour plus 4% holiday pay; and
(r) the Appellant's earnings in the
Period were $599.04.
[39] Himmat Singh Makkar testified he was born
in India – in 1947 – and came to Canada in 1997. He worked during the months of
October and November for a labour contractor. He lived with his daughter and
her family. In 1998, between March and May, he worked for Lakeland Nursery (Lakeland). He also worked for Berry Haven Farm (Berry Haven),
also known as Penny’s Farm, in Abbotsford and drove his own car to work. He
stated that before starting work at Gill Farms on August 3, 1998, he had nearly
1,000 insurable hours of employment accrued from his previous employment which
he considered to be more than the amount needed to qualify for UI benefits,
although he did not know the precise number required. At Berry Haven, he was
paid a piecework rate depending on the berry picked and earned amounts
equivalent to an hourly rate of $9 or $10. After layoff at Berry Haven,
he heard about Gill Farms from his son-in-law and applied for work
there. He had not picked blueberries before and recalled receiving –
sometimes – one part of a picking card similar to the one displayed in Exhibit
A-1. He drove his car to Gill Farms and also drove his wife there – on occasion
– but she was also picked up at home and dropped off by a member of the Gill
family. He recalled attending an interview with Emery (her notes are at tab 9)
at which Paula Bassi acted as a Punjabi interpreter. His photograph was taken
and he answered questions subsequently put to him by Emery because he thought
it was mandatory. The appellant was referred to a photocopy of cheque # 0507
– tab 10, top of p. 48 – dated October 26, 1998 in the sum of $742.09 which he
deposited to his account at First Heritage Savings Credit Union (Heritage) on
November 17, 1998. He could not recall any specific reason for the
delay in negotiating said cheque but stated he does not always deposit cheques
promptly, even now. He also received cheque # 0430 – tab 11, second from
top, p. 50 – dated August 9, 1998, in the sum of $200 – which
was deposited to the credit of his account on September 15, 1998. While working
at Lakeland at $8.50 or $9 per hour, he was paid – by
cheque – on a regular basis. He was the only member of his family with an
account in a financial institution and deposits to that account were often
composed of a variety of sources, including pay cheques of his wife, Santosh Kaur Makkar,
who also worked at Gill Farms. An example of such a deposit – in the sum
of $5,292.68 on April 25, 1998 – is indicated on the statement of account
activity at tab 15, p. 58. The appellant could not recall the reason for the
cash withdrawal of $1,000 on March 21, 1998. While working at Berry Haven
– beginning in June, 1998 – he was paid every month by cheque. On August 4,
1998, he made a deposit totalling $3,285.21 which he thought included pay
cheques for himself and his wife. On October 31, 1998, an entry on the
statement – tab 15, p. 60 – indicated a cash withdrawal of $2,200. The
appellant could not recall the purpose of that transaction except to state he
used cash to buy groceries or to pay for purchases – on a regular basis – since
neither he nor his wife had any credit cards in 1998. He used the automatic teller
machine to make withdrawals which appeared to be within the fixed daily limit
of $300. Himmat Singh Makkar stated he picked blueberries at Gill Farms
until laid off by Harmit Kaur Gill on August 28, 1998. He stated the work was
beginning to slow down by then as the end of the season was approaching and he
was not among the fastest pickers since the first time he had picked
blueberries was in 1998. He stated that because he is a worker in a seasonal
industry, his employment at Lakeland and Berry Haven each year provides enough
insurable hours for him to qualify for UI benefits following layoff.
[40] Himmat Singh Makkar was cross-examined by
Shawna Cruz. He stated he passed Grade 10 in India
and took ESL classes in Vancouver for 2 or 3 weeks after coming to Canada. He agreed the answer he had given – at Discovery –
on November 18, 2003, that the classes lasted 4 or 5 weeks was correct. He
stated he can speak and write some English and borrows books from the library
to improve his ability to read. He can read and write Punjabi and
worked for a railway company in India.
Prior to emigrating to Canada, he had
not done any farm work. The appellant identified his
signature on the last page of the Questionniare –
tab 5 – completed on his behalf by Ronnie Gill – on February 23,
2000 – based on his answers which he considered to have been truthful. He
recalled attending an interview with Emery on January 18, 1999, at which the
Punjabi interpreter Paula Bassi was present. He also remembered speaking
on the telephone to Harby Rai. He did not have the opportunity to read
over the notes – tab 4 – made by Rai of that January 18, 1999,
conversation nor to reflect on his answers prior to responding to Rai during
the telephone interview but considered his responses to have been truthful.
With respect to the manner in which he learned about the job at Gill Farms, his
answer to Q. 2 of the Questionnaire ‑ tab 5 – was that a friend
told him about it. The appellant stated he appreciates some of his answers
changed – due to the passage of time – but his son-in-law knew Hakam Singh Gill
from the mill. When he started working for Gill Farms, he did not know how long
the job would last and thought his pay would be about $8 per hour, including
holiday pay. Counsel pointed out the amount paid to his wife Santosh Kaur
Makkar – as shown on the time sheet in Exhibit R-10, tab 13 – was
only $7.50 per hour. The appellant stated he and his wife accepted the wages
paid to them as they were content to have found employment at Gill Farms. During
the interview with Emery on January 18, 1999, the notes – tab 9, p. 46 –
indicate he had provided an example by stating "by piece rate – 100 lb. =
$30”, a sum which is the result of multiplying the number of pounds picked by
the rate of 30 cents. The appellant stated he had been paid a piece rate
when working at Lakeland and may have been confused when giving
that answer. He conceded he knew he was required to tell the truth to Emery and,
after the first few questions, realized the subject matter of the interview was
his employment with Gill Farms. With respect to the matter of picking cards, he
stated he used one sometimes whereas during the interview, Emery wrote – p. 46
– that he said "Yes, everyday; it was kept by one of the family members".
Emery noted the appellant’s answer to the subsequent question whether other
workers used picking cards was "all the other workers had picking cards –
no workers paid hourly rate". The appellant could not explain why he added
the latter part of his answer which was not necessary in order to respond to Emery’s
question. He stated the berries were weighed 4 times a day because the Gill
family – as owners of the farm – wanted to keep track of production by the
pickers. He understood the berries could not be exposed to direct sunlight for
an extended period so they were taken to the scale 4 times during the day where
they were weighed. The picking cards were kept at the scale by Harmit Kaur
Gill. The appellant stated he did not take berries to the scale. Counsel
referred to the notes ‑ tab 4 – of Harby Rai in respect of her
telephone conversation with the appellant, where he said – apparently –
that he and his wife were paid $7.50 per hour and had not been given any
picking cards. The appellant was shown the photocopy of the Gill Farms picking
card – Exhibit A-1 – and stated he could not say with certainty whether he used
that card or one similar but recalled he was handed only one part of a picking
card – in the morning – on which his wife’s production was also recorded. A statement
– tab 1 – was provided by his agent, Ronnie Gill in response to an undertaking
at Discovery that he produce the picking cards he had used at Gill Farms. In
said statement, he indicated he and his wife had been issued picking cards
while employed at Gill Farms, that he handled the cards and took information
from the cards concerning the number of hours worked each day which he wrote on
a calendar. The stated reason for his inability to produce said cards was
attributed to the fact he and his wife had moved 2 or 3 times since the end of
their employment at Gill Farms as well as his supposition the calendar had been
disposed of since it had no value because both he and his wife had been paid
all of their wages. The appellant adopted his answer at Discovery that he could
pick about 200 pounds of blueberries per day. He considered his wife’s daily
production was the same. In 1998, he and his wife lived in a basement suite in
a house located about 10 kilometres from the Gill Farms and – depending on
the route – it took only 10 or 15 minutes to travel from home to work. His wife
started working at Gill Farms one day earlier than him but he drove her to work
every day except when they rode to work once or twice in a Gill family vehicle.
He recalled riding in a pick-up truck with other people but cannot recall who
drove it. He was laid off on August 28, 1998, but his wife continued to
work and – occasionally – he drove her to and from the farm but she rode mostly
with one of the Gills. The appellant stated that although his time sheet – tab
14 – showed he worked 8 hours each day during his employment, the start and end
times were not as strict as those in a factory and recalled there was some
variance in work hours but added it was not more than 15 minutes each way.
He stated his answer – at Discovery – that all workers started at the same time
was wrong. He explained that when quitting time was announced, workers at the
far end of the field might finish later than others. Notwithstanding, he
thought their end time was recorded the same as others who had left soon after
the announcement. He conceded his answer to Rai that he and his wife had
started work the same day was incorrect and that he worked 5 days a week – not
7 – as noted by Rai. If it was raining, he and his wife went to the farm and
waited for a member of the Gill family to make a decision whether picking would
proceed. Counsel pointed out the time sheet of his wife – Santosh Kaur
Makkar – during the period of his own employment shows that she worked either 7 or
8 hours a day, 7 days a week without missing even one day. The appellant stated
that was correct and confirmed his response to Q. 26 of the Questionnaire
– tab 5 – and the answer provided – at Discovery – that he had not missed any
work due to bad weather. Counsel pointed out he had answered "No"
to Q. 29 of said Questionnaire when asked if he kept records of his own
hours of work. The appellant replied he had recorded his work hours on a
calendar – initially – by telling his daughter the information
and – later – when she did not want to continue, by writing down – personally –
the hours. Concerning his tasks at Gill Farms, the appellant stated that
other than picking berries, he repaired holes in the nets by using a needle and
thick thread. It took 20 to 25 minutes to close a small tear but only
after a considerable amount of time had been spent attempting to find the
exact location of the hole. This task was carried out on an
irregular basis, as required. Usually, he handled the repair
himself but Gurdev Singh Gill assisted sometimes. He stated
he did not help remove the nets and that the answer – tab 9, p. 45 –
provided during the interview was incorrect except that when he went to the
farm to pick up his wife he volunteered to help her roll up the nets so she
could finish work a bit earlier. He recalled using a tractor to spray grass and
agreed he had not mentioned that task when speaking to Emery. He described the
apparatus as consisting of a system whereby as many as 6 pipes/hoses could
be attached to a drum, although only 4 were used on the farm during 1998. The
nozzle on each hose was operated by one person in order to apply spray to the
affected area. He stated he cleaned buckets and larger containers, when
required, and when he went to the farm to pick up his wife – after he had
been laid off – observed workers washing and disinfecting buckets and tubs.
While picking berries, although he and his wife used the same container which
was later taken to the scale for weighing by Manjit, he denied they were paid
for their efforts on the basis they – as a couple – were equivalent to one
person. He stated if he said – at Discovery – his picking card was punched,
that answer is incorrect. Counsel referred the appellant to the notes – tab 9,
p. 44 – of his interview with Emery in which he stated his supervisors were
either Rajinder Singh Gill or an experienced picker who had worked for Gill
Farms in previous years. The appellant confirmed that answer was correct and
added he did not know the names of other members of the Gill family. He could
not recall having worked with the co-appellant Gurdev Singh Gill even
though he mentioned him as a co-worker when interviewed by Emery. He told Emery
he had worked with another man also named Gurdev Singh Gill who was Ronnie
Gill’s father. He recalled Manjit Kaur Gill weighed berries but had not seen
her picking. However, he knew Harmit Kaur Gill usually operated the scale and
saw Rajinder Singh Gill at the farm as well as Hakam Singh Gill – on
occasion – especially when one or both of them transported workers. With
respect to fellow workers, the appellant stated he was able to see only those
individuals working in the same row. At Discovery, the appellant stated he had
observed Manjit and Harmit both picking berries during a busy period as well as
Hakam if he had been at the farm. The appellant explained he was not providing
inconsistent answers deliberately but small details concerning work are easily
lost in one’s memory. By way of example, he noted that he would have been able
to recall the number of the row in which he picked on a particular day – if
asked within a day or so – but that ability to recall would be lost with the
passage of time. The work was repetitive and he stated that when answering
questions – even the same or similar questions – it was reasonable to expect
some variation in the responses. He agreed the first HRDC interview had been
conducted only a few months after his layoff when it should have been easier to
recall details of his employment at Gill Farms. Later, during the summer of
1999, he was interviewed by Harby Rai and subsequently completed a
Questionnaire which was returned to Bernie Keays, Appeals Officer. In the
course of litigation, he gave evidence at Discovery and then testified in the
course of the within proceedings. The appellant conceded it was appropriate to
consider his answers during the HRDC interview on January 19, 1999, as the most
accurate except some subsequent answers may have provided additional details.
With respect to the 6-week delay in cashing the cheque dated August 9, 1998 –
in the sum of $200 – the appellant stated there had been more than $13,000 in
the family account – at Heritage – at that point and there was no pressing need
for the money represented by that small cheque. He had not requested any money
and recalled it had been handed to him by a member of the Gill family,
probably Harmit. The appellant’s ROE – tab 12 – was dated
September 14, 1998 and his application – tab 13 – for UI benefits is dated
September 4, 1998 but the checked answer to Q. 31 on said form indicates no ROE
was attached at that time even though Gill Farms was named as the employer.
Cheque # 0507 – tab 10 – in the sum of $742.09, was dated October 26, 1998
but was not deposited to the appellant’s account until November 16. When asked
by counsel to explain the reason for the delay, the appellant stated he
deposited all pay cheques at the same time because Harmit Kaur Gill had
requested him to hold off cashing the cheques until the cash flow improved at
Gill Farms. He had not encountered such a request from any other employer.
Counsel asked the appellant if he withdrew the sum of $2,000 from his account
on October 31, 1998, in order to pay money back to the Gill family as part of
an arrangement whereby he and his wife could each receive an ROE which would
entitle them to qualify for UI benefits. He stated there was no link between
that withdrawal and the employment of him and/or his wife at Gill Farms
and they had not repaid any of their wages to any member of the Gill family.
With respect to the timing of receiving his ROE and the second cheque, the
appellant stated he did not know if he had obtained both at the same time or on
two separate occasions but there had been another meeting for the purpose
of settling the amount due to his wife for her work. Counsel referred him to
answers – at Discovery – to the effect he met with Harmit Kaur Gill about one month
after his layoff for the purpose of settling up his own final pay and –
later – had driven to the Gill Farms in order to pick up his wife’s final
cheque but she had not accompanied him. The appellant stated there had been no
meeting in the formal sense but he had been to the Gill family residence on two
separate occasions in order that his wages and – later – those attributable to
his wife’s employment could be received in full. The appellant was referred to
an entry dated August 21, 1998 – tab 15, p. 58 – indicating there had
been a debit card transaction for the purchase of groceries in the sum of
$78.52. He agreed the debit card had been used now and then but numerous cash
withdrawals from the account served a variety of purposes in order to satisfy
the needs of his family because the account was in his name and no family
member had a credit card. The appellant stated his current assertion is that he
was paid on an hourly basis despite any previous statements – to HRDC officials
– that he had been paid a piece rate calculated by the pound. Turning to the
matter of the completion of his application – tab 13 – for UI benefits, the
appellant confirmed he filled out the first part of the form but the second
part had been completed by another person. He signed the form on the last page.
Changes were made in the boxes applicable to Q. 17 of the form – by
scribbling over the initial entry – so as to state that the appellant’s
earnings were $8 per hour, based on working a 40–hour week over the course of 5
days. When applying for benefits, the appellant stated he did not have the ROE
from Gill Farms and assumed it was obtained by HRDC and that the information in
his application with respect to his hourly rate had been changed in order to
conform with the information contained in said ROE.
[41] Himmat Singh Makkar was re-examined by his
agent, Ronnie Gill. He stated that in 1998, there were 5 family members over
age 18 and the account at Heritage was used for the benefit of everyone.
Although some groceries were purchased with the debit card, most were paid for
in cash, particularly for food and household supplies obtained at specialty
stores operated by Indo-Canadians. He stated his ability to speak and
understand English had improved substantially since 1998 and that it was not
unusual to hear English words and phrases within a conversation otherwise in Punjabi.
Jarnail Kaur Sidhu
[42] Jarnail Kaur Sidhu testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2118(EI) – is Exhibit R-11.
[43] The Minister decided the employment of the
appellant with Gill Farms during the period from May 25 to September 26, 1998,
was not insurable because she was not dealing with the payor at arm’s length.
In the alternative, the Minister determined she was employed for 325 insurable
hours and had insurable earnings in the sum of $2,535. The appellant’s position
is that the ROE – tab 13 – correctly states her insurable hours – 942 – and her
insurable earnings of $7,347.60.
[44] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about October 7, 1998 indicating
that the first day worked was May 25, 1998 and the last day worked
was September 26, 1998 and that the Appellant had 942 insurable hours
during the Period, with insurable earnings of $7,347.60;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 325 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 4% holiday pay; and
(r) the Appellant's earnings in the
Period were $2,535.00.
[45] The appellant testified she was born in India in 1941 and came to Canada
in 1996. After arriving in Canada, she worked for one week until she was
injured in a motor vehicle accident that totally damaged the van in which she
was a passenger. As a result of injuries sustained in the collision, she did
not work during the remainder of 1996 nor – at all – in 1997. She worked for
Gill Farms in 1998 and in subsequent years remained at home to care for her
first granddaughter who was born in October that year. This arrangement permitted
her daughter-in-law to work outside the home. The appellant stated she is not
able to read and/or write in either Punjabi or English. Because she had no
daughters of her own, the appellant stated she gave traditional gifts –
including gold – as well as a number of suits and other items of clothing to
her son’s wife. In total, she recalled having spent "quite a bit of money".
At Gill Farms, her initial tasks included digging holes in which to insert
wooden poles around which cement and gravel were added to steady them. She
removed grass, spread sawdust, cut off dry branches from the blueberry plants
and repaired some wires used to hold the nets. She worked with two or three
other women as well as with Harmit Kaur Gill and Manjit Kaur Gill in order to erect
the netting system. The nets were raised onto wires by workers standing on
ladders and unrolling the netting until it could be spread over the poles. The
appellant stated the hooks caught sometimes and it required time and effort to
untangle the blockage. Due to her physical condition attributable to her car
accident in 1996, she did not climb the ladder herself but assisted a female
worker to install the netting. The appellant recalled attending – on January
19, 1999 – at an HRDC office where she was interviewed by Turgeon, whose notes
are at Exhibit R-7, tab 7. Jugender – a Punjabi-speaking HRDC employee –
acted as interpreter but the appellant stated there were times when she did not
understand some matters even when attempts were made – by Jugender – to
interpret the questions posed by Turgeon. She stated she was interviewed in a
small room and even though she was nervous and upset during the process, was
under the impression she was not free to leave even after Turgeon – for some
reason – banged on the table. At the interview, the appellant stated she was
paid $8 or $8.50 per hour for all tasks performed, including picking berries
and that she received – sometimes – one part of a picking card which was taken
back at the end of the day for some reason not disclosed to her. During berry
season, she assisted in a procedure whereby the grass was sprayed by using a
long hose which was held away from the plants by two women while a man operated
the nozzle. The appellant described working at tasks such as cutting dry
branches and removing thorns from the bushes, using a sickle to remove grass,
cleaning up debris, stacking containers, cleaning buckets and tubs, all of
which were performed when berry season had ended. She also worked to take down
the nets which she recalled took about the same amount of time as to install at
the start of the season. Although she could not recall the exact number of days
required for these tasks she recalled both were a time–consuming procedure.
Concerning transportation to work, she recalled riding with Harmit and Manjit
and – on occasion – in vehicles driven by either Hakam or Rajinder. Initially,
she was the only passenger in a vehicle but later rode to work with Harbans
Kaur Khatra. She lived in Aldergrove – near the residence of Khatra – but does
not know the name of the street. She was aware most other workers were from the
Abbotsford area. Her residence was closer to the Gill Farms than those of
her co-workers. When the season ended, the appellant reviewed matters with her landlord
– a lady who lived upstairs – and was satisfied she had been paid in full by
Gill Farms. She did not sign her application – tab 14 – for UI benefits
and does not know who completed it on her behalf. The address used therein was
that of Gill Farms on Lefeuvre
Road in Abbotsford even
though she lived in the Langley region. Her recollection is that someone
at the counter of the HRDC office advised her she should use an Abbotsford
address on her application because that municipality was located within a
region that would provide her with more weeks of UI benefits. The appellant
stated she received cheque # 0469 – tab 11, second from bottom,
p. 49 – dated September 27, 1998 – in the sum of $1,310.25 – which was
deposited to her account at Aldergrove Credit Union two days later on
September 29. She also received cheque # 0499, dated October 24, 1998
– tab 9, top of p. 45 – in the sum of $1,580, which she deposited on October
26. Cheque # 0493 – tab 9, also on p. 45 – dated October 23, 1998 – in the
sum of $1,349 – was deposited to her account on October 23 (the photocopy of
the cheques in tab 8 is the same as the one in tab 9). She also received
cheque # 0498 – tab 10, bottom of p. 47 – dated October 15, 1998 – in
the sum of $2,000 – which she deposited to her account on October 26, 1998.
Earlier, she received cheque # 0425 – tab 12, top of p. 51 – dated August
9, 1998 – in the sum of $200 – which she deposited on August 17. The account
was in the name of the appellant and her husband and the statement of activity
is at tab 16. Her son was able to withdraw money from the account. The
appellant stated she was accustomed to using cash for purchases even though the
usual discount offered by most vendors for that form of payment was less than
$10. She did not write cheques and did not have any credit cards. Fairly large
amounts of cash were kept at home for use by family members. The appellant
stated it is customary to present cash in an envelope as the proper form of
gift at celebrations – such as birthdays or weddings – within the Indo-Canadian
community in circumstances where the recipient does not have a close
relationship with the donor. The appellant stated she rode alone in the car but
was with other passengers – including Harbans Kaur Khatra – when picked up in
the truck. She estimated that during peak season between 25 and 30 people
worked at Gill Farms but she did not know the names of co-workers except for
Gurdev Singh Gill and his wife and a girl, Manjit Kaur Sidhu.
[46] The appellant – Jarnail Kaur Sidhu – was
cross-examined by Amy Francis. She recounted the physical damage caused by
the seat belt during the motor vehicle accident which affected her right
shoulder and back and caused ongoing pain for a considerable period of time
afterward. During 1998, it was not a problem for the most part but she
preferred to take a lunch break of one hour, on occasion. She worked every day
during a 3-month period because there was enough work on the farm to keep her
busy. She identified her signature – as traced by her – on the last page of the
Questionnaire – tab 4 – which was completed in her home, although she does not
recall the surrounding circumstances. In India,
she and her husband lived on a family farm that grew cotton which was harvested
by hired pickers. Before marriage, she worked on a cotton farm owned by her
parents and milked between 15 and 20 cows. Her husband did not work for Gill
Farms in 1998 but had worked there during either 1996 or 1997. In 1998, because
the family had only one car, her husband stayed at home and took family members
to and from work and school. The appellant stated she sought employment at Gill
Farms because the family needed the income. She was accompanied by her niece –
Amarjit –- when she discussed the job with Manjit, Harmit and Hakam and was
told she would be paid on an hourly basis. The appellant stated Amarjit was
aware of the length of the typical berry season and assured her that workers
would be picked up and taken home by the Gill family. She understood there
would be work throughout the season but there was no promise made by any of the
Gills concerning any specific number of hours of employment nor any guarantee
of the duration. She stated there was no mention at the meeting with the Gills
of the amount of insurable hours needed to qualify for UI benefits. After
starting work at Gill Farms, she followed the same procedure each morning and
waited by the window so she could see when the Gill vehicle arrived to
pick her up for work, usually at or near the same time, allowing for a 5-15
minute difference due to traffic conditions. She did not wear a watch
but thought she was picked up between 7:00 a.m. and 8:00 a.m. each day and was
dropped off after work was finished. Counsel referred her to a note – tab 3, p.
27 – made by Harby Rai with respect to their telephone conversation on
July 27, 1999, where the appellant apparently stated she worked until 8:00
or 9:00 in the evening. The appellant did not recall that statement and added
that this information was incorrect because she had not worked when it was
dark. Although Rai’s notes contained a recitation of the appellant’s duties at
Gill Farms, she did not have any recollection of the conversation but
agrees it must have occurred. The appellant stated the workers from Abbotsford rode
in the pickup and she and Harbans Kaur Khatra usually rode to work in
the car by themselves. Sometimes, Khatra’s son came to the farm at the end of
the day and drove them home. She and Harbans Kaur Khatra started at Gill Farms
the same day and worked together for the ensuing 77 days. Counsel referred the
appellant to the time sheet – Exhibit R-4, tab 15 – of Harbans Kaur Khatra
and pointed out that on 44 of 77 days, she had worked either one or two hours
less than Khatra even though they rode to and from work together. The appellant
stated she could not explain that difference in the time records. She stated
she was supervised by Manjit and Harmit and saw Manjit working on the farm
every day. Now and then, she observed Rajinder walking around the farm and
Hakam also was there after returning home from his job. Hakam and some of the
Gill children picked berries occasionally – for a few minutes – and Harmit
sometimes picked berries for 5 minutes or so and dropped them in any bucket
that was handy. Manjit carried large containers of berries to the scale. To the
best of the appellant’s recollection, there were only 5 to 7 people working on
the farm on her first day, including Gyan Kaur Jawanda, a female named
Sukhwinder, Manjit Kaur Sidhu and Harmit and Manjit Gill. Counsel advised
the appellant that when interviewed at the HRDC office, Turgeon noted –
tab 7, p. 40 – the appellant’s estimate that between 12 and 15 people worked
with her when she first started her job and that she had repeated the same
answer to that question as noted by Turgeon on p. 41. The appellant reiterated
she had been very upset and nervous during that interview. Counsel suggested
this statement was probably true because by the time she really started working
at Gill Farms, it was already berry season and she had not begun her employment
at the end of May, as alleged. The appellant stated although she did not
understand the purpose of the picking card because she was paid on an hourly
basis, she retained the card and placed it on top of the berries when her
bucket was full. In the interim, it was kept inside an empty bucket. She
considered the card was used so the Gill family could figure out whether the
average production of any picker justified paying an hourly wage. Manjit
carried away the large container of berries to the scale but did not recall the
manner in which it was returned to her. She stated if she had realized such
petty details would be important at some point, she may have paid more
attention to otherwise insignificant matters. Counsel referred the appellant to
a question about whether she kept track of hours and days worked and to her
response as noted by Turgeon – tab 7, p. 41 – "I was given a card each day
I worked". Earlier on the same page, in response to a direct question
whether she was given picking cards, Turgeon noted the appellant stated "Yes,
1 card for each day, name on card". Concerning her response to the next
question whether other workers received picking cards, Turgeon wrote "Yes,
everyone got a picking card". The appellant stated those answers are not
correct and that she was so upset during the interview she "does not know
what came out of my mouth". Turgeon also wrote the appellant said "We
had to return the cards when we were going to be paid". The appellant
denied having made that statement although she agreed some of the information
recorded as representing her answers during the interview was correct. Counsel
addressed the issues arising from the notes – tab 3 – made by Harby Rai
concerning the telephone conversation – in Punjabi – with the appellant on
July 27, 1999 during which she apparently told Rai she had not
received a picking card because she had been paid by the hour. The appellant
stated she thought about that conversation during the evening following her
first day of testimony in the within proceedings but could recall only that the
call was made during which Rai asked some questions. The Questionnaire – tab 4
– was completed by Ronnie Gill in the presence of Amarjit Sivia, the
appellant’s niece and landlady. The appellant conceded she must have
supplied the answers written therein, including the one – to Q. 40 –
stating she had not used a picking card because she had no need for it.
However, the answer to the next question whether she used a picking card for
every day of work was "No. Harmit gave me one everyday". The
appellant explained the confusion may have been due to the fact a picking card
was handed to her only on some days so the Gill family could monitor
production. She recalled giving evidence – at Discovery – in November, 2002,
where she stated the picking card was used to record how much she picked even
though she – personally – did not "hold the card". Later in
Discovery, she stated that at the end of the working day Harmit often told her "Auntie,
you picked a lot of berries; good job" but did not disclose the actual
poundage picked even though the card was shown to her. Counsel asked which
version was true and the appellant stated the card was with her –
sometimes – while she worked in the field. She did not recall her daily production
but understood the owners wanted pickers to work fast – within reason – to pick
the berries and to choose only the ripe ones. Although she usually put her
berries in a large plastic container, she sometimes used a flat which was
carried away by Manjit. Once berry season ended, the appellant stated she
performed some trimming of dry branches – by using scissors – which she
considered to be a form of pruning. While she did not participate in planting
new bushes early in the season, she noticed new plants within the rows at some
places. She was unable to recall during what period she worked spreading
sawdust around the plants and thought Harbans Kaur Khatra had assisted her in
that process even though Khatra did not start work at Gill Farms until July.
The appellant stated it is very difficult to recall the sequence of what is
essentially mundane, repetitive work, particularly years later. She went with
Amarjit Sivia to the Gill residence in order to settle up and spoke with
Harmit and Manjit but is uncertain whether she received her final
cheque at that time and/or whether the ROE was also handed to her. With respect
to the application – tab 14 – for UI benefits, the appellant stated no
member of the Gill family had been at the HRDC office with her nor had any of
them assisted her to complete the form. She talked to some people while in that
office and someone mentioned that UI benefits were more generous if a
worker lived in the Abbotsford region rather than in Aldergrove which had a
lower rate of unemployment. Counsel advised the Court there were 3 different
statements within tab 16 but the one commencing at p. 77 was in relation
to another account operated by other members of the appellant’s family and was
not relevant to her appeal. The appellant was referred to the statement ‑ tab 16,
p. 75 – and to an entry on October 23, 1998 indicating a cash withdrawal
in the sum of $2,300 and to the October 26, 1998 entry recording the deposit of
her $2,000 cheque from Gill Farms which had been dated October 15, 1998.
The appellant stated she could not explain why three pay cheques from Gill
Farms were not deposited until October 26 if she ‑ or someone
from her family authorized to operate the account – had been at the bank three
days earlier to withdraw the sum of $2,000. Counsel directed the appellant to
an entry on a statement – tab 16, p. 67 – on October 23, 1998, recording a
cash withdrawal of $1,450 from another account within the same credit union.
The appellant stated there may be some confusion arising in relation to the
sequence in which the cheques were issued and/or cashed.
[47] The appellant – Jarnail Kaur Sidhu – was re–examined
by her agent, Ronnie Gill. The appellant was referred to cheque # 0499
– tab 9 – dated October 24, 1998 in the sum of $1,580 which was deposited
to the appellant’s account two days later and to cheque # 0493 – tab 9 –
dated October 23, 1998 in the sum of $1,349 deposited the same day and to
cheque # 0498 – tab 10 – dated October 15, 1998 in the sum of $2,000
which was deposited on October 26, 1998. The appellant stated it was likely
that all 3 cheques were written at once and that cheque # 0498 –
probably – was backdated to October 15, 1998. Two cash withdrawals
totalling $3,750 were made on October 23, 1998 from two separate accounts
in the same credit union, one at 12:22 p.m. and the other at 4:13 p.m.,
the same day. The appellant stated the accounts were accessible to herself, her
husband and their son so those withdrawals may have been made by different
people for different reasons. The appellant was referred to several entries in
the statements within tab 16, recording the following cash withdrawals: $4,000
on January 12, 1998 – p. 60; $800 on January 9, 1998 – p. 60; $600 on February
2, 1998 – p. 61; $4,000 on May 21, 1998 – p. 63, all of which were prior to the
two withdrawals on October 23, 1998 that were the subject of questioning
by counsel for the respondent. The appellant stated it was not unusual for
relatively large sums of cash to be withdrawn for use by family members and
that the sum of $4,000 withdrawn on May 21, 1998 could have been the subject of
a loan to help someone in the family or within the Indo-Canadian community. The
appellant stated her best recollection of her telephone conversation with Harby
Rai is that it was brief and that she terminated the conversation after
answering some of Rai’s questions. She stated the response to Q. 40 of the
Questionnaire – tab 4 – that she had not used a picking card was based on her
understanding that picking cards were never issued for her to use but were
handed out to permit the Gill family to know the extent of her daily
production. In that sense, she considered she did not use any picking card for
her own purpose because there was no need to do so. The appellant reiterated
there had been no guarantee of any duration of work but she fully expected to
be employed until the end of the season because her niece – Amarjit – had some
knowledge of the berry industry and had informed her a full period of
employment was normal if farmers needed pickers. The appellant stated she
relied on Harmit to record – accurately – her hours of work.
Manjit Kaur Gill
[48] Manjit Kaur Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2100(EI) – is Exhibit R-8.
[49] The Minister decided the appellant’s
employment with Gill Farms from May 25 to September 26, 1998, from May 25
to September 27, 1997 and from June 2 to October 19, 1996 was not
insurable because she was related to the individuals operating the payor
partnership and the Minister was not satisfied pursuant to paragraph 5(2)(i)
of the EIA that she and the payor would have entered into a
substantially similar contract of employment if they had been dealing at arm’s
length.
[50] The appellant’s position is that she was
employed during those periods under reasonable terms and conditions and was
paid a reasonable amount for her efforts in the course of performing
supervisory work within a seasonal industry and that the details of her
employment during those relevant periods were correctly stated in the relevant
ROEs issued by Gill Farms.
[51] The assumptions of fact specific to the
appellant, stated in paragraphs 7(h) to 7(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Periods as a supervisor on the Farm;
(i) the Appellant's sister, Harmit,
was also employed by the Partnership in the Periods as a supervisor on the
Farm;
(j) the hours worked by the
Appellant as set out in the Partnership's records did not reflect the hours
actually worked by the Appellant;
(k) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
as a supervisor when there was in fact no work for the other workers to do;
(l) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(m) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(n) there was no need for the
Partnership to employ two fulltime supervisors in the Periods;
(o) the Partnership issued Records
of Employment to the Appellant in respect of the Periods which she used to
collect Employment Insurance benefits;
(p) the Appellant is related to the
Partnership within the meaning of the Income Tax Act;
(q) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length; and
(r) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
[52] Manjit Kaur Gill testified she is married
to Rajinder Singh Gill. She was born in India – in 1950 – and came to Canada in 1972. She is currently employed as a supervisor at
Gill Farms, having started work on June 15, 2005, at a salary of $9 per
hour. Blueberry picking commenced on June 25, 2005 and between 15 and 20 employees
are currently performing that task. The appellant stated the work performed
each season is more or less the same. During 1996, 1997, 1998 – the years at
issue in her appeal – and in subsequent years, she began working near the end
of May or in the first part of June. She recited the tasks needed to prepare
for a forthcoming season such as fertilizing, cutting off dry branches,
spreading sawdust, cleaning hoses, removing grass by hoeing or using a small
hand tool, repairing and installing the nets, replacing old or damaged poles
and replacing drippers on the irrigation hoses and otherwise ensuring the
watering system – fed from a well – is in good working condition. The appellant
referred to a photograph in order to point out the pipe that runs along the
ground and to the drippers – that supply water – located near the roots of the
blueberry plants. She explained the process of inspecting drippers requires a
worker to move aside the roots of the plant in order to determine if that mechanism
had been damaged or broken, perhaps by having been stepped on by pickers during
the previous season. In the event it is necessary to replace a dripper, the
sawdust material has to be removed. Sometimes, the dripper holes are plugged
and a cleaning is required to permit the flow of water. The water supply to the
system is turned off each year prior to winter which is the start of the rainy
season. The appellant stated an average row contains 65 plants and each plant
is serviced by one dripper. In total, the appellant estimated this procedure is
carried out over the course of 5 or 6 days. With respect to the installation of
the nets, the appellant stated 5 or 6 people worked for 8 days – in 2005 – to
complete the task. The nets are unrolled and two people – on ladders – hold one
side of a section of netting and two other people – also on ladders – hold the
other side until it has been placed properly on the poles and secured to the
wires. The appellant estimated one section of net would cover an area equivalent
to the large courtroom – perhaps 2,000 square feet – in which the appeals
were heard. During the season, it is sometimes necessary to repair the nets due
to tearing or piercing of the material. At the end of each season, the
nets are removed and rolled and the wires are separated. Other tasks include
cutting off dry branches, cleaning and washing 200 large containers and
100 small buckets. New plants are placed in the soil according to need in a
particular year and 100 were planted in 2003. The appellant stated picking
season started on June 25, 2005, which was early and the only other early start
she could recall was one on June 21. In her experience, a late start would be
July 17 in any given year. The appellant stated that during the periods under
appeal and thereafter, she worked in the field where she performed several
tasks including carrying buckets of berries – to the scale for weighing - from
the point of picking. In so doing, she either returned the bucket to its
original location or left another in its place. She brought water and other
beverages to workers and – if time permitted – also picked berries. The small
buckets held 5 to 7 pounds of berries and pickers emptied them into the larger
container/bucket which held 25 to 30 pounds so it required 5 small buckets
to fill the larger one. The appellant stated a good worker can pick
35 pounds per hour so every 2 hours almost 3 large buckets will be full. In
order to demonstrate the type of berry currently in full season, the appellant
– on July 7, 2005 – took a photograph – Exhibit A–7 – of a Northland plant
with berries. She stated Northland was prolific and pointed to
the presence of several green berries amidst the ripe bunches. The
next crop to mature is Blue Crop and the appellant
referred to two other photographs on a sheet – Exhibit A-8 – in which the
berries are a mixture of ripe and green whereas in the photograph – Exhibit A-9
– also taken on July 7, the Dixie berries are completely green. After two
pickings of the Blue Crop variety, Dixie is next but it was not ready to pick
on July 14, 2005, the day of the appellant’s direct examination. The appellant
stated the 9 rows of Dixie plants at the rear of the property,
although mixed with some Blue Crop plants, are physically separated from
Northland and other varieties. There is a mixture of other varieties within
rows and the Blue Crop plants are marked with a blue ribbon so pickers can
distinguish that berry from others. The appellant stated the varieties are
picked separately and the price Gill Farms receives from the sale of Northland
berries is less than that obtained for other types. As a result, a picker whose
task it is to pick Blue Crop, will pass by a Northland bush which will be
picked by a worker who has been designated to harvest Northland berries. The
appellant stated she has 4 children and all of them lived at home in 1998.
Three of them have since married and live in their own homes in the municipalities
of Surrey and Abbotsford. While living at home, her son – Baljit – worked as a
machinist in the airplane industry and her daughter – Harpreet – worked for the
same employer while the youngest two children were still in high school
and only picked berries now and then during their spare time. With respect to
the development of the farm, Manjit Kaur Gill stated the property was
purchased in 1979, at which point it was completely planted in grass. The first
crop grown on the 8.25–acre parcel was strawberries which have a lifespan of 3
years. Once the strawberry plants were finished, the family began replacing
them with blueberry plants until – in 1983 – the entire acreage was devoted to
that crop. Some plants produced a harvest within two years while others
did not mature fully for another 6 years. The appellant stated she has worked
at a cannery since 1984 and also worked 7 years – full time – on a mushroom
farm. She also worked a night shift at a cannery in Haney when called upon
during the berry season and continued to work for that entity when it moved to
Chiliwack until it closed out its business operations. In 1994 and 1995, she
worked 3 months a year at the cannery and had another job at the same time. The
mushroom farm did not have a season like other crops so some days she worked 4
hours but during other more intensive periods of activity during the year, she
worked more hours on a regular basis. The appellant stated her husband –
Rajinder Singh Gill – started working – in 1971 – in a mill in
northern British Columbia and continued that line of work after
moving to the Lower Mainland until he was laid off in 1999. Because he suffered
from a sore back, he did not do much farm work and even the spraying – using
the tractor – was carried out by Hakam. Manjit Kaur Gill stated that when
working – in 1996 – at the Haney cannery, she earned $13 per hour and was able
to work lots of overtime. She also worked at the Lucerne
cannery and earned $8.35 an hour but only after accumulating 150 days work – a
level she has not attained from 1996 to 2005 – is the pay increased to $13 per
hour. She currently earns $8.90 per hour. The appellant stated she had not
attended any business or farming courses and has accumulated knowledge by
working on strawberry and raspberry farms and from her work on the mushroom
farm and in the canneries. She stated Rajinder Singh Gill and Hakam Singh Gill
both worked at full-time jobs in the years prior to 1998, and invested their
salaries in developing the farming operation. She also used her wages to
support the farm and between 1999 and 2003, incurred considerable expenses as a
result of the weddings of three of her children. During the 1998 farming
season, the appellant recalled working with each of the appellants named in the
within proceedings and also with Manjit Kaur Sidhu, Pawandeep Kaur Gill,
Gurdial Kaur Grewal, none of whom are a party to said proceedings.
The nets were installed by her, Harmit, Sukwinder Kaur Gill, Gyan Kaur Jawanda
and Manjit K. Sidhu. The appellant stated Jarnail Kaur Sidhu,
Harbans Kaur Khatra and Pawandeep Kaur Gill suffered from back problems so she
carried their 25–pound buckets of berries to the scale. She also carried full
buckets for other female workers but the men brought their own containers to
the scale. During the busy part of the season, a bucket would be filled every
hour and the appellant walked around the rows in order to see which
buckets needed to be emptied and she carried them – two at a time – to Harmit.
The same procedure is being used in the current 2005 season. The appellant
stated that – in 1998 – with 15 workers picking about 35 pounds per
hour, it required a lot of time merely to take the buckets to be weighed. The
scale was moved from time to time in order to be closer to the pickers so the
appellant would not have to walk any longer than necessary while carrying
50 pounds of berries in two buckets. The scale was mounted on a 4-wheeled
cart which also held a supply of buckets. Harmit operated the scale and
recorded the average production by pickers. The appellant identified the
picking card ‑ Exhibit A‑1 – as the type used in the 2005
current season. If the picker is paid on a piecework basis, he or she retains
the part labelled "Picker" and Gill Farms keeps the one to be used by
the "Grower". The appellant stated most workers – in 2005 – prefer to
be paid on a piecework basis. In 1998, picking cards were issued to workers and
when the appellant picked up a bucket of berries from a worker, she used a pen
to note that person’s name on the side of the container and also wrote the name
down on a piece of paper. When delivering the bucket to Harmit at the scale,
she informed Harmit of the identity of the picker who had filled that bucket.
Harmit weighed the berries and checked them over for quality in order to avoid
the situation where the cannery could pay a lower price because it had assigned
a lower grade to a shipment. The appellant explained that even though the word
“cannery” is used within the industry, that type of facility also uses berries
to make jam, wine, muffins, pies, juice and other products. The appellant
recalled the berry crop was somewhat thinner in 1998 – even during peak
season – and took longer to harvest. The Blue Crop variety is the easiest to
pick because it produces high volumes of berries. During the busy part of the
picking season, berries are taken to the cannery 3 or 4 times each day by a member
of the Gill Family. Concerning the issue of transportation of workers – in 1998
– the appellant stated both herself and Harmit drove them to and/or from work.
At Aldergrove, she or another member of her family picked up Harbans Kaur
Khatra and Jarnail Kaur Sidhu both of whom lived about 7 minutes
driving time from Gill Farms. Other workers lived farther away and it took
15 minutes – each way – to pick them up and return to the farm. On occasion,
some workers were taken home in the evening by a family member who had stopped
by the farm. The appellant stated Gurdev Singh Gill and his wife always needed
a ride and were picked up first – and taken home first – by a Gill family
member using the small green car. However, even if those workers were
at the farm by 7:30 a.m. – before other workers – they might have had to
wait for the dew to evaporate before they could start picking. The appellant
drove a truck that carried 5 passengers and sometimes it was necessary to make
two trips to Abbotsford to collect workers but by 9:00 a.m., all workers
were on site. The appellant was referred to Exhibit A-10, a photograph of a
small-diameter black irrigation hose with a protruding outlet or dripper. She
produced an actual dripper which was filed as Exhibit A-11. She stated a
dripper is screwed into the pipe and in the course of preparing for a
forthcoming season, the crew carries drippers with them when they clear away
material from the appropriate area, examine the condition of the dripper and,
if required, replace it. The rows range in size from 120 to 400 plants some of
which extend continuously to the limit of the Gill family property. The bushes
are about 5 feet tall and it is difficult to see other workers unless they are
picking nearby in the same row. The appellant stated the same procedure is
followed every year – including 1998 – when sawdust is spread around plants at
the beginning of the season and again in the fall. Hoeing is also done at least
twice per season in order to remove grass. The appellant stated she has
always worked – even in 1984 when her son was only 10 days old – because
she did not want to lose her seniority at the cannery. In her opinion, if she
had not worked for Gill Farms in 1996, 1997 and 1998, the Gill brothers would
have needed to hire someone to carry out her duties and responsibilities. In
her view, the hourly rate of $9 was reasonable bearing in mind the nature of
her work. From her standpoint, she was content to accept that wage because if
she worked at another job outside the farm, her remuneration would be at or
near the minimum wage which ranged from about $7.15 to $7.50 during the
relevant periods under appeal. In relation to her supervisory duties, the
appellant stated the piecework pickers were admonished ‑ sometimes –
if the percentage of green berries was too high because the canneries would not
pay Gill Farms for those berries. She directed the hourly workers to pick the
Blue Crop variety. The appellant stated that in the morning it was usual to
have 10 pickers on the farm but after 3:00 p.m. when the greenhouses closed for
the day – because of the intense heat – another 10 people would come to the
farm to pick berries. In 1998, some berry sales were in response to specific
orders from stores that demanded clean berries and so the conveyor/sorting belt
was used to ensure the purchasers would receive high-quality product. Upon
receiving a telephone call from someone placing an order, the appellant stated
Harmit would carry out that request by obtaining assistance from Harbans
Kaur Khatra – and, perhaps another worker, on occasion – to sort and clean the
necessary amount of berries. However, berries grown by Gill Farms are sold –
currently – only to canneries and any sorting function is performed by those
facilities. In 1998, picking started – mostly – at about 8:00 a.m. whereas the current
practice is to begin 30 minutes earlier and to continue until 9:00 p.m. in
order to accommodate pickers who are paid by piecework. The appellant stated
that throughout any season she is kept busy performing a variety of tasks,
including inspection of bushes to ensure they have been picked properly because
if a ripe berry has been left on a plant it becomes mouldy and can damage the
quality of the remaining berries that are still green. In the event of rain
heavy enough to stop picking, the hourly workers went inside a garage and were
paid while they waited but the pieceworkers were not paid and often wanted to
go home. The appellant stated she was not responsible for recording working
hours of any employee and if she noticed a worker taking an extended break or
resting – perhaps, due to not feeling well – she informed Harmit who dealt with
the situation. With regard to the settling-up process at the end of the season,
the appellant stated although she was present on occasion, that function was
Harmit’s responsibility and for that purpose she used a separate room in the
Gill family residence. She recalled the meeting could occupy as long as one
hour, particularly if the worker wanted an explanation of some aspect of the
transaction. She stated Harmit handled the paperwork relating to employees if
they quit for one reason or another. Returning to the issue of
transporting workers, the appellant stated Gill Farms did not have cell phones
in 1998 but she and Harmit took a cordless residential telephone into the field
and workers – including those paid by piecework – called that number in order
to arrange for a ride to work. The appellant stated Hakam Singh Gill decided
when her services were required each season and her start date varied depending
on the weather but he usually gave her about one week’s advance notice. By
way of example, due to warmer temperatures, the preparatory work began on
May 15 in 2005 and some berries were ripe by June 25. In April,
the bushes produce a white fluff and then flowers form and bees pollinate the
plants and the berries start to form in May. An independent supplier is
contracted to bring bees to the field for purposes of pollination and the time
required, although it varies from year to year, is between one and two weeks.
Once the bees have been removed, the farm work can begin. The appellant stated
her husband – Rajinder – although excited about the prospect of farming when
the land was acquired in 1979 and for some years thereafter, lost interest and
did not participate actively in the operation of the farm. Hakam carried out
the management role and upon returning from work walked into the field to greet
workers and to observe the work being done. The current policy at Gill Farms is
to leave the nets up at the end of the season but in 1998 they were removed,
rolled up, tied around the wires on the poles and covered in black plastic. In
earlier years, the nets were rolled up and stored in the garage. The nets are
now 15 years old and have been mended many times as a result of having been
torn by various animals. Hakam also patrolled the picking area looking for
holes in the material and gave instructions to workers to carry out repairs, if
necessary. The appellant stated it was important to detect and repair breaches
to the cover because birds were able to enter and consume a substantial amount
of the berry crop. She recalled that during the summer of 1998, it was
necessary to deal with an abundance of grass growing near the roots of the
blueberry plants by moving it away from the base of the bushes and applying
spray from a long hose that several workers supported in order to keep it from
resting on other plants and causing damage. Hakam operated the tractor and
supervised the spraying operation. The appellant described the mechanisms
involved, including the hoses – of varying lengths – which were about the same
diameter as a typical household garden hose and each hose was attached to one
of four separate outlets on the sprayer tank. Some hoses were composed of only
one length while others were made up of several sections joined together
and these longer ones had to be supported by workers in order that the spray
could be applied specifically to an area so damage to neighbouring plants could
be avoided. A backpack sprayer was also used by Hakam to apply the liquid to a
small area of unwanted grass. Larger, dry areas of grass were removed by hand.
The appellant explained the ongoing problem with the grass stemmed from the
fact the farm – in 1979 – was completely sown to grass and had been transformed
slowly over ensuing years into a blueberry farm. Other weeds were also present
and had to be dealt with by applying herbicides but the spears of grass arrived
each year and had to be removed by one means or another, including hoeing and
spraying, sometimes in the midst of the growing season. The rate of new growth
was suppressed to some extent by spreading sawdust over the area after existing
grass had been removed. The appellant recalled Harby Rai and several other
members of an inspection team visited Gill Farms on August 12, 1999. The ROE
– tab 15 – dated October 10, 1998 was received from the farm accountant a few
days later. The appellant’s application – tab 18 – for UI benefits
following layoff in 1997 stated her husband owned 50% of the payor’s business.
Following an examination – by HRDC – of her working relationship with the payor
partnership of her husband and brother-in-law, she received her benefits
according to an entitlement based on information in her ROE and/or her
subsequent application. In 1998, the appellant was satisfied she had been paid
in full for her work according to the record kept by Harmit. The appellant
reiterated she had always worked more than enough for one or more employers in
the course of any given season to qualify for UI benefits following layoff
regardless of the nature of the work performed. However, although she and her
sister – Manjit – both applied for UI benefits as a result of working for Gill
Farms in 1998, Manjit received UI benefits but the appellant did not. From
1999 to 2004, inclusive, the appellant has applied each year for UI benefits
based on her seasonal employment with Gill Farms and payments have been
denied on each occasion. The appellant is currently employed as a janitor at a
bank – working from 9:30 p.m. to 11:30 p.m. – 6 nights a week and earns $1,500
per month. The work location is only 15 minutes from her house and sometimes
her daughter helps her perform the work. When work was available at the
cannery, the appellant – after finishing work at the bank – went to Lucerne and worked for 4 hours. She also worked at Gill Farms
and only worked at the cannery on a graveyard shift. If she returned home at
4:00 a.m. from a shift, she slept about two hours before starting her workday
at the farm. The appellant recalled the visit by Emery and Turgeon to her house
on November 3, 1998 and stated she understood the subject matter of the
discussion was based on the belief – by HRDC officials – that she had attempted
to build up insurable hours based on babysitting rather than as a result of
working in the fields. The appellant stated she did not understand any
reference to babysitting since there were no children in the house and the
youngest – Hardeep – was 14 and did not require any child care. The appellant
attended an interview on November 26, 1998 and answered questions put to her by
Turgeon whose notes are at tab 12. Jugender Dhaliwal was present and
acted as an interpreter. The appellant recalled the interview took place in a
small room, lasted about two hours and she sensed that Turgeon thought she had
not worked on the farm – at all – and was merely claiming enough weeks of
employment to qualify for UI benefits. The appellant stated her farm work
is basically the same year after year and the duties performed prior to the
commencement of the growing season and after the berries are finished occupy
the same amount of time, give or take a few days. Each year she was employed by
Gill Farms, she received a T4 slip and filed an income tax return
reporting the income stated thereon. The appellant was referred to the first of
two sheets ‑ tab 22 – with a photocopy of two cheques. The
first cheque – # 0445 – dated August 18, 1998 – in the sum of $1,400 – was
deposited the same day into the appellant’s personal account at the Royal Bank
in Aldergrove. The next cheque ‑ # 0446 – dated August 21,
1998 – in the sum of $500 – was deposited into the appellant’s account that
day. The second sheet in tab 22, upon which two cheques had been photocopied,
shows that – on September 8, 1998 – the appellant received cheque # 0457 –
in the sum of $1,362.68 – and deposited it to her account the following day. On
September 25, 1998, she received cheque # 0468 – in the sum of $700 –
which she endorsed so it could be deposited on her behalf by her nephew,
Kulwant Singh Gill. The appellant recalled she had applied the entire amount of
her $1,400 cheque – dated August 18, 1998 – to an outstanding balance on a Visa
card issued solely in her name.
[53] The appellant – Manjit Kaur Gill – was
cross-examined by Amy Francis. The appellant stated she had not discussed her
testimony with her sister ‑ Harmit Kaur Gill – nor had
they spoken about matters such as the times workers were picked up nor any
other details that were the subject of apparent inconsistencies as probed by
counsel during Harmit’s cross–examination. With respect to current farm
practices at Gill Farms, Manjit Kaur Gill stated that on August 2, 2005, there
were 8 hourly‑paid workers and between 7 and 20 pieceworkers,
depending on the day. Six of the hourly workers started the same day and the blueberry
season commenced on June 25. The appellant stated she started work about May
15, 1998 although she agreed she had indicated earlier ‑ more than
once – that she had started in June but added that any previous reference to
the month of June is in error and stems from her preference to describe months
as the 5th or the 6th rather than using the English names for months of the
year. The appellant agreed she has lived in Canada
for 33 years. In 1998, she started work on May 25, about 6 weeks prior to the
first picking of any berries. With respect to transporting workers, the
appellant stated she and Harmit shared – more or less equally – that duty.
Harbans Kaur Khatra and Jarnail Kaur Sidhu lived in Aldergrove and were picked
up, taken to the farm, and then the appellant or her sister went to Abbotsford
to pick up the workers who resided in that municipality. Counsel reminded the
appellant that in the course of her direct examination, she testified she
picked up Khatra and Sidhu only after Gurdev Singh Gill and his wife had been
taken to the farm. The appellant replied it is difficult to recall the sequence
in which workers were transported – in 1998 – but most of the time, Sidhu and
Khatra rode home together. Some people continued to work while others were
being driven home. Counsel asked the appellant to explain why people who
rode to and from work together apparently worked a different number of hours
according to their time sheets. The appellant replied that some
workers may have taken longer lunch breaks. Counsel referred the
appellant to the time sheet – Exhibit R-1,
tab 28 – of Kuldip Kaur Sekhon, to the time sheet – Exhibit R-12,
tab 14 – of Gyan Kaur Jawanda and to the time sheet –
Exhibit R-8, tab 21 – of Manjit Kaur Sidhu. Counsel advised the appellant
that previous testimony had established all three rode together from
Abbotsford. Counsel referred to the week of September 6–12 on each time sheet
which indicated Kuldip Kaur Sekhon apparently worked 9 or 10 hours a day but
during the same period, Gyan Kaur Jawanda worked only 7 or 8 hours a
day and Manjit Kaur Sidhu worked exactly 8 hours each day that week. The
appellant stated she had not been in charge of keeping time records as that
function was the responsibility of Harmit and whomever performed that task
during those periods when Harmit was absent while working at the cannery.
Counsel advised the appellant that Harmit had testified it had been Manjit ‑ personally
– who had carried out that function when she was absent. The appellant replied
that was not correct as she had played no part in any record keeping. With
respect to arrival times at the farm, the appellant agreed the workers who were
picked up in the Abbotsford area would not begin work until between 8:15 and 8:30
each morning. In her absence while picking up Abbotsford
workers, the people already dropped off – Gurdev Singh Gill and his
wife and Harbans Kaur Khatra – were given instructions where to pick and directed
to place any full buckets of berries in a shady spot until she returned.
Usually, she and/or Harmit were on site but workers were aware of the work that
had to be performed. The appellant stated the time spent driving workers to and
from the farm was counted as working time and her total hours were recorded by
Harmit. Counsel referred the appellant to her time sheet – Exhibit R-8, tab 23
– indicating she worked at Gill Farms either 8, 8 ½ or 9 hours a day
during 1998 whereas there were some periods – such as the week of September 6,
previously discussed – where other workers including Kuldip Kaur Sekhon
and Gurdev Singh Gill and his wife worked more hours on some days. The
appellant reiterated she is unable to account for any supposed inconsistencies
because she did not participate in the process of keeping time records. She stated
she is able to read and write Punjabi and went to Grade 10 in India. She can speak some English and can read it to a
limited extent. The appellant could not recall the year she began working for
Gill Farms but it coincided with the hiring of outside workers and she worked
as their supervisor. She stated she could not recall the first year the nets were
used but it was prior to 1996, at which point all the plants were mature. She
stated the irrigation system was installed in 1997. Regarding the visit to the
farm by Turgeon and Emery on November 3, 1998, the appellant stated she
attempted to answer – truthfully – the questions put to her. Counsel advised
her there was no reference to the subject of babysitting but Emery had written
– tab 14, p. 66 – that "Harmit and … Manjit both work on the farm from Mar
to Sept in a supervisory capacity. They do no picking or weeding". The
appellant stated the pieceworkers did not pick the Blue Crop variety and that
the Northland variety is the first one to finish. By way of example, the
picking of Northland was completed by July 2, 2005. The Dixie variety is the last one harvested and – in 1998 –
was picked by both the hourly workers and those paid by piecework. The farm has
about 15 Duke variety plants and those berries ripen at the same time as
Northland. The appellant was referred to Exhibit R–1, tab 20 – a letter
from Lucky Gill-Chatta of LRS Solutions – dated September 30, 1999 and directed
to Revenue Canada responding to a request for information –
tab 21 of same binder – by Harby Rai concerning workers employed by Gill
Farms during the 1998 season. Answer # 10 – tab 20, p. 110 – in response
to a question about who supervised workers stated "Manjit K. Gill at all
given times administered the direct supervision of the employees".
The response went on to state that Hakam Singh Gill – following
discussions with Harmit – told the appellant which of the workers to call to
work. Counsel asked the appellant why that procedure would be necessary if the
hourly workers worked every day. The appellant stated she could not provide any
explanation. In the context of other duties, the appellant recalled carrying as
many as 30 buckets of berries per hour during the busy season. Counsel
referred to Turgeon’s notes – Exhibit R-8, tab 12 – of the interview held at
the HRDC office on November 26, 1998 and to p. 58 thereof where Turgeon
recorded the appellant’s response to a question about her duties as supervisor.
As noted, the appellant apparently stated she phoned employees to advise the
time to start work, where to go, when to take breaks, where to get their
buckets and provided workers with drinks and checked on the quality of their
work. Counsel informed the appellant there had been no mention whatsoever of
carrying buckets of berries to the scale in order to be weighed by
Harmit. In the course of providing a response – Exhibit R-1, tab 20, p. 120 –
concerning the appellant’s duties, counsel pointed out there had been no
mention of carrying berries to the scale although numerous other tasks were
listed. Counsel referred the appellant to a letter – Exhibit R-8,
tab 6 – dated September 30, 1999 sent by her agent – Ronnie Gill – to
Revenue Canada with respect to duties carried out and that – at # 9 – the
duties listed did not include carrying berries to be weighed even though this
job supposedly occupied a great deal of her time. The appellant agreed that
aspect of her job had not been mentioned earlier and cannot explain why it had
been omitted. She stated she can understand the concern of HRDC officials but
denied having invented that task in order to add to the number of hours worked
so she could qualify for UI benefits. The appellant stated she continues – in
2005 – to carry buckets of berries to the scale and has done so in
previous years. Pursuant to an undertaking, the appellant provided a letter – Exhibit R-13
– from Lucerne setting her hours worked in 1996, 1997, and 1998, as 16 ¼,
81 ¼ and 74 3/4, respectively. The appellant stated the hours worked –
in 1998 – were accrued only during strawberry season in June and consisted of
17 or 18 night shifts of about 4 hours each. According to the payroll
sheet – Exhibit R-8, tab 23 – the appellant worked 6 days a week in June,
between 8 and 9 hours each day. Including her work at Lucerne, counsel pointed out that amounted to at least 12 hours
a day for 20 days in June. The appellant stated she could get by on a few hours
of sleep and sometimes worked 4 hours at Lucerne,
followed by 8 hours at Gill Farms and then another 4-hour shift at the cannery.
She slept and/or rested for a couple of hours after finishing work on the farm
and also after completing a shift at Lucerne before
returning to work at Gill Farms. The appellant stated the bushes are pruned
early in the season and again after the picking is finished. Some years,
the berries last until early October but not in 1998. Counsel read out
certain answers given by the appellant – at Discovery – in November, 2002,
in which she stated no pruning had been done after the nets were up and – in
another reply – that no pruning was done after the nets were taken down. The
appellant agreed she gave those answers and had neglected to mention the
pruning done in the fall. The appellant stated only hourly workers were
involved in taking down the nets and any previous reference to a pieceworker
assisting in that task was incorrect. The appellant recalled that 500 new
plants were put into the ground in 1998. She agreed that – at Discovery – she
estimated there had been 200 to 250 new plants and that sawdust/bark mulch was
spread at the end of May. In order to fill an order for direct sale to
Greenfield Farms in Richmond, the berries were carried to the scale in
25-pound containers, weighed, and dumped into large containers known as lugs.
The appellant stated only flats are used to deliver berries to the canneries
and they usually hold 16.5 pounds but more can be added provided care is taken
not to squish the berries. Blue tubs – containing 20 pounds – were also
used to carry berries to the scale. The appellant stated she wanted to monitor
production and verify the quality of berries since leaves, twigs and other
debris were sometimes placed in the small picking bucket, even by an experienced
picker. The transfer of berries to the flats or tubs took place near one of the
houses – on the property – near the road or at another location if picking was
being done there. Each place had stacks of flats and/or tubs available in order
to carry berries to the scale by either the appellant or Gurdev Singh Gill. The
farm property is 10 acres and the appellant pointed to a sketch – Exhibit
R-1, tab 4, p. 20 – and to areas marked "new house" and "old
house" which she confirmed were the two spots where berries were loaded
onto flats. Another location near the old house was also used, on occasion,
although the appellant could not pinpoint it on the diagram. The appellant
stated she carried as many as 30 buckets of berries per hour to the scale
during peak season where ‑ after weighing – the berries were
transported to another location and deposited into other containers, whether
tubs or flats. If berries had to be cleaned and sorted, that task was carried out
near the spot indicated as “old house” on the sketch. Although the scales were
moved closer to the pickers, as required, the 3 places where berries were
transferred to other containers remained the same. The farthest distance from
pickers to the scale would not be more than 100 feet. Then, the berries
were carried by the appellant from the scale to a transfer point which would vary
in distance but each trip from the rows to the scale also involved another trip
to transport the berries to the transfer point. The pieceworkers carried their
own berries both to the scale and thereafter to the place where they were
placed into other containers. The appellant confirmed that she carried only
those berries picked by hourly workers and that at some point during their
employment, each worker had been given a picking card to use for one or
more days unless they were known to be fast pickers. Counsel referred
the appellant to the portion of Turgeon’s notes – Exhibit R-8, tab 13, p.
65 – in respect of the visit by her and Emery to the farm on
November 3, 1998 where the appellant stated "all employees that
pick berries are provided with a daily picking card". The appellant denied
having made that statement and added she would not have been able to
convey that information – in English – in that format because her command of
the language is not good enough and no Punjabi interpreter was present. The
appellant stated she did not weigh berries and that if Harmit was absent, one
of her daughters worked as her replacement. Manjit Kaur Gill stated she did not
know if the picking cards were punched or written on in order to record the
weight of berries. Regarding the length of breaks, the appellant stated Harmit
would be responsible for dealing with that matter in the event some workers
took longer breaks on a regular basis. The appellant stated she had understood
the hourly workers were not paid – in 1998 – if it rained but accepted Harmit’s
version that they were paid if required to wait inside the garage
until conditions improved. The appellant was referred to a table – Exhibit R-14
– counsel had prepared in order to display information relevant to the various
cheques issued to the appellant by Gill Farms. The appellant produced a Visa
card in the name of Manjit K. Gill which she stated was the subject of a payment
by applying the entire amount of her $1,400 pay cheque dated August 18, 1998.
Counsel showed the appellant the bottom portion of a sheet – Exhibit R-2,
tab 41, p. 529 – showing the photocopy of cheque # 0409 –
dated June 22, 1998 – in the sum of $284.12 with a Visa number as the payee and
pointed to the words written on the memo line "Manjit’s Royal Bank".
The appellant stated that particular Visa account number was different than the
one on which she had applied the $1,400 cheque. At one point when her daughter
was not married, the appellant had a joint Visa card with her but after the
marriage, a new card was issued in the appellant’s name only. At Discovery, the
appellant stated she had endorsed the $500 cheque – dated August 21, 1998
– in favour of her nephew – Kulwant ‑ because she had owed him that
amount. However, prior to having been reminded of her testimony to that effect,
the appellant stated Kulwant had gone to the bank – as a favour – to cash
the cheque for her. Counsel reminded her both versions could not be correct.
The appellant agreed and adopted her answer at Discovery on the basis it was
correct. The appellant could not recall why she owed Kulwant that specific sum
but he lived on the same farm property – in 1998 – and also worked for Gill
Farms. Cheque # 0457 – Exhibit R-8, tab 22, p. 87 – dated September 8, 1998 –
in the sum of $1,362.68 – was deposited to the credit of a Royal Visa account
bearing the same number as the one to which the previous cheque in the sum of
$1,400 had been applied. The appellant recalled she also had a Canadian
Imperial Bank of Commerce (CIBC) Visa card in 1998. Counsel referred the
appellant to the photocopy ‑ Exhibit R-2, tab 41, p. 510 – of
a cheque dated February 20, 1998 – in the sum of $705.39 – payable to a CIBC
Visa account number and to the memo line indicating the purpose of the cheque
was for "Manjit’s bill". Counsel referred the appellant to her
Royal account statement – Exhibit R-15 – indicating the October 24, 1998
cheque on the Gill Farms account – in the sum of $2,223.28 – was
negotiated on November 9, 1998 of which only $723.28 was deposited to her
account suggesting the remaining $1,500 must have been taken by her in the form
of cash. The appellant stated she could not recall that transaction but may
have given cash to her son who needed money. At that time, the appellant was
aware Gill Farms was waiting to be paid by a cannery but still wanted to be
paid her final wages.
[54] The appellant – Manjit Kaur Gill – was
re-examined by her agent, Ronnie Gill. The appellant stated her son –
Baljit – was married in May, 1998. Her husband – Rajinder – had been laid
off by the mill and she used her Visa card to buy gifts for the bride and to
pay for a large reception. She also borrowed money from her sister and her
daughter. With respect to the policy at the farm about carrying berries, the
appellant stated it is currently the same as in 1998 in that she takes buckets
to the scale but at coffee breaks, lunch break, and at the end of the day, the
workers bring their own bucket(s) to the scale. Sometimes at quitting time,
some workers will be waiting to have their berries weighed while others are
already being driven home. In order to pick up workers, the appellant stated
she left home at 7:15 a.m. and dropped them off at 5:30 p.m. and returned
home. Ronnie Gill pointed out that – even allowing for lunch – this schedule
constituted a 10-hour day but her time sheet did not have any entry of more
than 9 hours on any given day. The appellant stated she relied on Harmit to
keep track of her hours just as she did for all other employees. The appellant
stated when Greenfield Farms ordered berries the buckets were taken to the old
house area where the conveyor belt was located and either Harbans Kaur Khatra
or Kuldip Kaur Sekhon helped to clean the amount required so the order could be
delivered the following day.
Gurdev Singh Gill
[55] Gurdev Singh Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2098(EI) – is Exhibit R-3.
[56] The Minister decided the appellant was not
engaged in insurable employment with the payor during the period from August 3
to September 12, 1998 because the employment was not at arm’s length as a
matter of fact. In the alternative, the Minister decided the appropriate number
of insurable hours was 108 with insurable earnings in the sum of $810.56. The
appellant’s position is that the correct number of insurable hours is 210 with
insurable earnings of $1,694.10, as decided by the Rulings Officer. The ROE –
tab 11– issued by Gill Farms stated the number of insurable hours was 324 and
insurable earnings were in the sum of $2,614.68.
[57] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about October 9, 1998 indicating
that the first day worked was August 2, 1998 and the last day worked
was September 12, 1998 and that the Appellant had 324 insurable hours
during the Period, with insurable earnings of $2,614.68;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 108 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 7.6% holiday pay; and
(r) the Appellant's earnings in the
Period were $810.56.
[58] Gurdev Singh Gill testified he was born in
India – in 1940 – and came to Canada with his wife and three children – in 1996
– and they lived with an older daughter who was their sponsor. Within a short period,
he found work at Narang Farms in Abbotsford and later moved to rental
accommodation on that property. The farm grew vegetables and blueberries and
there was also a cannery on the property. After the 1996 season ended, he and
his family continued to live there and he worked for Narang Farms again in
1997. In 1998, he worked for Sidhu Farms and lived in a furnished trailer
on the property for which he paid rent. In 1998, his son – Gurpreet – was young
and two daughters – Malkit Kaur Gill and Jasbir Kaur Gill – worked in
Squamish, British Columbia. The appellant stated he is illiterate and innumerate
so cannot read nor understand the use of numbers and does not know the exact
age of his children. In 1998, he was laid off by the Sidhu family after
raspberry season ended and that farm did not grow any blueberries. He knew Gill
Farms grew blueberries and although he had not picked that crop before, found
out they needed workers. He was hired by Gill Farms and his first task was to
pick berries. Later, he performed other tasks as instructed by Manjit Kaur Gill
from time to time. He recalled that when the buckets were full of berries, if
it was coffee time or the lunch break, he carried those containers to the
scale. Otherwise, some member of the Gill family performed that task. The
appellant stated that during the course of his employment, he and his wife were
driven to work by Manjit or Harmit or Rajinder or Hakam and the trip from their
residence at the Sidhu Farms to Gill Farms took 10 to 12 minutes. He
recalled that although he and his wife each took one day off each week it was
not the same day. In the event it rained, usually the picking continued unless
it was enough to cause work to stop, in which case the workers went home for
the remainder of the day. The appellant recalled attending an interview – with
Turgeon – at the Abbotsford HRDC office on January 18, 1999. Jugender Dhaliwal
was the interpreter and Turgeon’s notes are in tab 7. The appellant stated he
does not understand English so cannot comment on the quality of the
interpretation of Turgeon’s questions into Punjabi. After working in 1996 and
1997, he qualified for UI benefits but was not aware of the number of insurable
hours required in 1998. However, he had wanted to work as long as possible and
when no more farm work was available, he applied for benefits. At his current
job, the appellant is paid every 15 days – by cheque – but in 1998, he recalled
receiving pay on an irregular basis and it seemed as though the Gills paid him
only after they had received money from the cannery. He stated his practice was
to keep track of his own work hours until the settling-up had been
satisfactorily completed at the end of the season. In 1998, Gill Farms paid him
$7.50 per hour which he thought was the same rate paid to his wife, Surinder Kaur Gill,
a co-appellant (2002–2115(EI)) in the within proceedings. He and his wife were
picked up in a green car or in a red and white pick-up truck and – on occasion
– one of Rajinder’s children used another vehicle. Except for another worker
from Aldergrove, no one else was picked up during the trip to the farm.
Sometimes, their son rode with them to the farm and stayed there during the day
– playing with Hakam’s children – while he and his wife worked in the fields.
His son did not pick berries. The appellant was directed to a sheet – tab 8
– and to a photocopy of cheque # 0513 – dated October 26, 1998 – in
the sum of $1,166.85, which he deposited on November 19, 1998 to the
Khalsa account he and his wife and Jasbir and Gurpreet operated jointly. He and
his family also had another account at Canada Trust and Jasbir and Malkiat had
an account at Royal that did not include him. The appellant stated he does not
write cheques although he has cheques that could be used for that account.
Because he and his wife did not drive a vehicle in order to do banking on a
regular basis, he withdrew cash, usually in larger amounts, such as $1,000 or
$2,000 if he needed the money to buy furniture or for another specific purpose.
The appellant stated that even though Jasbir had her driver’s licence – in 1998
– he also rode a bus to the credit union from time to time. After layoff that
season, a car was purchased for family use and furniture had been purchased
earlier due to a relocation to a residence in Abbotsford. The appellant
identified his ROE – Exhibit A-13 – dated September 17, 1998
issued by Sidhu Farms stating he had worked 378 insurable hours and had
insurable earnings in the sum of $3,024. Gill Farms issued an ROE ‑ Exhibit
R-3, tab 11 – indicating the appellant had worked 324 hours and had
insurable earnings in the sum of $2,614.68. While working with his wife at Gill Farms,
the appellant stated they were supervised by Manjit who told them where to
pick. He recalled Harmit was in charge of weighing berries and that Hakam
worked on the farm after returning from his outside job. The appellant recalled
the nets were still in place when he was laid off. He thought the reason for
his layoff was probably due to some sort of seniority policy since he and his
wife had worked at Sidhu Farms earlier in the 1998 season and had started
working for Gill Farms only in August. In total, he received 3 pay cheques,
copies of which are in tabs 8, 9 and 10 in the amounts of $1,166.85, $956.07
and $200, respectively.
[59] The appellant – Gurdev Singh Gill – was
cross-examined by Amy Francis. The appellant stated his daughter – Malkiat
– had been working in Whistler – in 1998 – and was married during that year at
some point before he and his wife started working at Gill Farms. After the
marriage, Malkiat and her husband had a residence in Surrey but she continued
to work in Whistler and resided in another town ‑ Squamish – during
the week. The appellant’s daughter's married name is Malkiat Kaur Sidhu
but she is not the worker who was issued picking cards for the period July
23-30, 1998, as shown on the photocopy in Exhibit R-1, tab 33, p. 371. In India, the appellant – with his brother and nephews – owned
a 30-acre farm, and leased another 50 acres which he farmed with a workforce of
3 permanent employees and another 25 to 30 workers who were hired
during the growing season. They grew cotton, wheat and sugar cane. Upon
emigrating to Canada, he left the management of the farm to his
brother but still receives some income which he uses when he and his family
visit India, mainly for special events such as his
daughter’s wedding. During his interview – Exhibit R-3, tab 7 – with Turgeon on
January 18, 1999, Turgeon noted the appellant stated Rajinder Gill had
hired him to work at Gill Farms. The appellant stated they had been driven
to Gill Farms by a member of the Sidhu family – their previous employer –
because the Sidhus knew the Gills needed pickers as the berries were in danger
of being spoiled if not harvested soon. Counsel pointed out that in responding
to a question from Revenue Canada about who had hired him, the appellant’s
stated answer – tab 4, # 3 – was "Hakam Singh". The
appellant confirmed that answer is correct but he and his wife had already
started working prior to meeting Hakam and had assumed their employment had
been arranged by the Sidhu family. When they met with Hakam Singh Gill,
there was no promise about any specific duration of their employment and the
appellant did not work for Gill Farms after 1998. He estimated that he and his
wife rode with either Harmit or Manjit at least 50% of the time and the rest of
their rides were with Rajinder, Hakam or one of the Gill children. The
appellant stated he had no specific recollection of the identity of the drivers
and was content merely to see a Gill family member drive up in a vehicle so he
and his wife could go to work. He recalled the pick-up time was rarely later
than 7:30 a.m. and did not vary either way more than 5 or 10 minutes and if it
was – on occasion – more, someone from the Gill family telephoned to inform
them of the change in the pick-up time. When speaking to Turgeon, the notes –
tab 7, p. 35 – indicate he stated "Rajinder or Manjit drove a truck
(15 people picked up)”. Counsel pointed out that in previous testimony he said
he and his wife usually rode alone or ‑ sometimes – with one
other worker from Aldergrove. At tab 4 the answer in response to Q. 10
of the Questionnaire – also at tab 4 - about how many people rode in the
van/bus was "5–7 people". The appellant stated this answer was not
correct because he had never gone to work in a van and rode only in a car or in
a truck where he and his wife sat in the back seat and ‑ usually –
they were the only passengers. He recalled that at quitting time, some people
continued to work and he assumed they had started later in the morning than he
and his wife. The end of the work day was announced by either Hakam or Manjit
and although the time varied – depending on the start time in the morning
– it did not vary more than 20 minutes. The appellant stated workers
received a picking card – sometimes – and that his berries were
weighed at the scale and Harmit marked the weight on a card. He and his wife
each emptied their small buckets into their own larger bucket and did not share
any container – including a flat – except at the end of the day when one or
other would add berries from the small bucket in an attempt to make up one full
container. He and his wife each had their own picking card. Counsel read out
certain answers provided by the appellant – at Discovery – where he stated
that when Harmit weighed the berries she recorded the weight under the appellant’s
family name to keep track of how much his family had picked, meaning he and his
wife were working together. In answering Q. 210 at Discovery, the
appellant said he and his wife had a card jointly and in response to the
follow-up question "So, you and your wife shared a card?" the
appellant replied "Yes, yes". The appellant stated he must have
misunderstood those questions because he and his wife had separate cards,
although they always picked in the same row. Counsel advised the appellant his
answer – as noted by Turgeon, tab 7, p. 37 – when asked if he received a
picking card each day was "Yes. My name on each card, it was also like an
attendance, they wrote the start & finish time". The appellant replied
he meant to say that his start and finish times were recorded each day but not
necessarily on a picking card. Counsel advised the appellant that according to
the notes – tab 3, p. 28 – made by Harby Rai concerning their
telephone conversation on August 19, 1999, he had said that no picking
cards were issued to them at Gill Farms because they were paid by the hour
but the owners weighed the berries for their own purposes. The appellant stated
there was no need to refer to the cards since they had not been used for the
purpose of settling-up after his layoff. Counsel referred the appellant to
answers # 40 and # 41, respectively – tab 4 – provided on his
behalf to the corresponding questions on the Questionnaire concerning the use
of picking cards. Answer # 40 stated the cards were used to “keep track of
my hours” and answer # 41 to the question whether he used a picking card
for every day of work was "yes". The appellant stated the latter
answer was wrong. Counsel informed the appellant that on 5 occasions, including
his HRDC interview, the telephone conversation with Rai, the response to the
Questionnaire as prepared by his agent – Ronnie Gill – and at Discovery
and during his testimony in the within proceedings, he had provided different
versions with respect to the use of picking cards. The appellant stated his
testimony under affirmation before the Court should be accepted as the truth
and any other earlier inconsistent statements should be disregarded. Counsel
suggested his memory should have been better – on January 18, 1999 – when
speaking to Turgeon – only 4 months after his layoff in 1998 – rather than
in August, 2005. He agreed that should be so but explained he had been nervous
during that HRDC interview. At Discovery, the appellant stated Manjit stayed on
the farm all day but Harmit was not always there and he did not know where she
went nor did he inquire. He stated he meant to distinguish between their tasks
in that Harmit did not work alongside the pickers. On occasion, both Manjit and
Harmit picked berries, as did Hakam when he had time after returning from work.
The Gill children sometimes picked but only for a short period. The appellant
confirmed he helped to take down the nets but added he had not been involved in
their installation since that had been done at the start of the season while he
and his wife were still working for the Sidhu family. Counsel advised him of
the content of Rai’s notes – tab 3, p. 27 – where she wrote her
understanding of his responses that "first they put up the nets, they had
to sometimes replace old poles, they had to get up on the ladder to unroll the
nets. He said they unrolled the nets first then they picked blueberries. He
said they had to put up the nets to prevent the birds from eating the berries.
He said he does not remember when they put up the nets but it was before they
started picking the berries. He said after the nets were up they picked
berries, then they weeded and then took down the nets and rolled them. I asked
him three times about putting up the nets. All three times he stated yes they
put up the nets before they picked the berries”. The appellant stated Rai’s
recorded recollection of that portion of their conversation is incorrect and
may be due to the usage of a Punjabi verb that is capable of meaning both “putting
up” and “taking down”. He added that Rai’s proficiency in Punjabi was not equal
to that of Russell Gill, the court interpreter. The appellant stated he
only started working for Gill Farms on August 3 and definitely did not
work installing the nets. During his employment, he picked Blue Crop and
whatever other type was ripe but the Dixie variety was still being picked when
he was laid off. In terms of their remuneration, the appellant stated he
informed Sidhu to tell the Gill family that he and his wife wanted to be paid
an hourly wage, the same as at Sidhu Farms. He stated he understood fast
pickers working on a piecework basis probably earned more than the equivalent
of minimum wage and others who worked slower still were content to be paid by
the pound because they could avoid incurring the wrath of an employer since
their pay was based on actual production as opposed to time. In his experience,
growers at some points during the season are desperate for workers and may pay
some people more – per hour – than others who have been there longer or may
resort to hiring pickers through a labour contracting entity. However, in his
opinion, regardless of the mechanism used to connect the owners and the
pickers, the growers want to pay less and the workers want to earn more. He did
not notice any Duke berries at Gill Farms but knew they were so plentiful
a picker could pick up to 400 pounds per day as opposed to between 200 and 300
pounds of Blue Crop. He agreed that when he started working for Gill Farms
no one there would have had any idea about his ability to pick blueberries. The
appellant stated he did not know why his payroll record – tab 13 –
showed his holiday pay was calculated at 7.6% while other workers received only
4%. The appellant stated that during the past two or three years, his pay for
doing farm work is $8.32 an hour which includes the 4% rate for holiday
pay. The appellant agreed he had not deposited his $200 cheque – dated
August 15, 1998 – until September 12 and could not recall any reason for the
delay except that in the meantime his daughter purchased groceries for the family.
The cheque at the bottom of the sheet – tab 9 – in the sum of $956.07
– dated October 24, 1998 – appears to have “Oct” written on the date line
in front of the numeral “24” but the word “Aug” appears over top and has been
scratched out, and beside it are the initials "H.S.G.". The cheque
was deposited into the appellant’s account at Khalsa on November 3, 1998.
The appellant agreed he had been laid off on September 12 but probably held off
cashing the cheque until the Gills had been paid by the cannery. The cheque –
tab 8 – in the sum of $1,166.85 ‑ dated October 26, 1998 –
was deposited into the appellant’s account on November 19. He did not
recall whether he received two cheques the same day nor why one was deposited
on November 3 and the other on November 19 and does not remember any
member of the Gill family requesting that he hold off negotiating any cheque.
He recalled Harmit Kaur Gill had telephoned him to advise Gill Farms
was ready to do the settling-up and Harmit came to their residence – in
Abbotsford – for that purpose. The appellant stated he did not know the two
young females who accompanied Harmit but had seen them at the farm. His wife
and daughter were present during the meeting. Counsel noted that – at Discovery
– the appellant had not mentioned these two young women. The appellant replied
that he only answered as much as the question required. With respect to the
purchase of a car, the appellant stated it was a 1989, 4–door Dodge and cost either
$2,500 or $3,000. It was purchased and insured in the name of another
person but his daughter drove it. According to the statement – tab 14
– on the relevant Khalsa account, the appellant or someone
authorized to do so, withdrew the sum of $2,500 in cash – p. 58 – on
November 19, 1998, the same day as two deposits in the sums of $2,707.02 and
$564.62, respectively. On p. 57, there is an entry indicating Khalsa certified
a draft in the sum of $15,000 on September 9, 1998. Counsel suggested that
apart from the withdrawal of $2,500 on November 19, 1998, the only other large
withdrawal shown on the statement of account activity was one for $800. The
appellant denied counsel’s suggestion that he paid the sum of $2,500 – or
any sum – back to the Gill family in respect of the employment of either
himself or his wife. He stated the money may have been used to buy rupees at a
business called A-1 Money Exchange to be used by a daughter who went to India. The appellant identified his signature on the
application – tab 12 – dated September 18, 1998 for UI
benefits and stated his daughter and another girl helped complete it by using
the computer.
[60] The appellant – Gurdev Singh Gill – was
re-examined by his agent, Ronnie Gill. She referred him to Exhibit R-3,
tab 14, p. 57 and to the entry showing the withdrawal from the account – on
September 16, 1998 – of the sum of $15,000 by way of certified draft. At p. 53
of the same tab, there is a statement of activity on the account the appellant
had opened at Canada Trust and it shows an opening deposit in the sum of
$15,000 on September 16, 1998. In the face of these references, the appellant
recalled that his family decided to open an account with Canada Trust because
they had talked about a bank being more secure than a credit union. A deposit
to that account the same day – in the sum of $4,011.42 – was money from wages
paid – by Sidhu Farms – to him and his wife. The subsequent withdrawal of
$4,000 was for the purpose of buying furniture and in contemplation of moving the
family to a new residence in Abbotsford. The appellant stated he worked for 4
different employers in 2004 and is currently employed as a farm worker by a
labour contractor.
[61] In relation to matters arising from
reference to the Canada Trust statement ‑ tab 14, p. 53 –
counsel for the respondent – Amy Francis – noted that the sum of $108.38 was
taken out of the account on October 20, 1998 and the withdrawal was
designated as Autoplan, suggesting this represented the amount of the monthly
payment for car insurance. The appellant agreed that was correct but stated the
car ‑ initially – had been purchased by a son–in–law.
Santosh Kaur Makkar
[62] Santosh Kaur Makkar testified in Punjabi
and the questions and answers and other aspects of the proceedings were
interpreted and/or translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The respondent’s book of documents relevant to this
appeal – 2001-2117(EI) – is Exhibit R-10.
[63] The Minister decided the appellant’s employment
with the payor was not insurable during the period from August 2 to September
26, 1998 because her relationship with the partners operating Gill Farms was
not at arm’s length. In the alternative, the Minister determined the correct
number of insurable hours was 117 and the appellant had insurable earnings
in the sum of $912.60. Counsel advised the Minister’s
alternative position also adopts the period of employment – from August 3
to September 12, 1998 – as decided by the Rulings Officer. The appellant’s
position is that her ROE – tab 11 – is correct wherein it states she
worked 421 insurable hours and had insurable earnings of $3,283.80 during
the period from August 2 to September 26, 1998.
[64] The assumptions of fact specific to the
appellant, stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried
branches, putting up and taking down nets, hoeing, weeding, spraying, washing
buckets etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about October 7, 1998 indicating
that the first day worked was August 2, 1998 and the last day worked
was September 12, 1998 and that the Appellant had 421 insurable hours
during the Period, with insurable earnings of $3,283.80;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 117 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 4% holiday pay; and
(r) the Appellant's earnings in the
Period were $912.60.
[65] Santosh Kaur Makkar testified she was born
in India – in 1948 – and came to Canada – in September, 1997 – with her husband, one son and
two daughters. They lived with their daughter who had sponsored their
immigration. In 1998, she started working at Lakeland/Flora – her first job –
after responding to an advertisement in a paper and is still employed there
each season. The work takes place during March and April and after layoff she
finds work picking berries. In 1998, she picked berries at Berry Haven/Penny’s
Farm. In 2005, she began picking raspberries on June 6 and then worked
harvesting blackberries and then a late–maturing raspberry. She stated the
overall growing season varies from year to year but 2005 was ordinary. When
working at Penny’s, she received a picking card and also used a card when
picking and packaging flowers for Lakeland. The
appellant stated that Penny’s Farm re–hires people each season and returning
workers tend to be hired sooner and laid off later than new workers who do not
perform tasks other than picking. In 1998, she was laid off at Penny’s once
picking was finished but other workers were still employed. She found out Gill
Farms needed pickers through her son-in-law who worked at the mill with Hakam
Singh Gill. She and her husband were hired by Gill Farms. She stated she always
works with her husband at various jobs and rides to and from work with him. In
1998, she and her husband left their residence in Abbotsford between 7:15 a.m.
and 7:30 a.m. and he drove their own car to the farm where either Harmit
Kaur Gill or Manjit Kaur Gill gave them instructions concerning the work to be
performed that day. The appellant had not worked on a farm in India except to do housework and her husband worked in a
service job for a railway. However, after moving to Canada,
she has done farm work every year and tries to work as many hours as possible
during the season. Her husband – Himmat Singh Makkar – handles all financial matters.
The appellant stated the nets were already installed when she began
working at Gill Farms and – later – she noticed the
material is torn from time to time. When picking berries, she and her husband follow
the practice of facing each other from opposite sides of the same plant and
berries are placed in a small bucket that is emptied later into a larger
bucket. The appellant recalled that at the end of the 1998 season, she cleaned
buckets, cut off dry branches, spread sawdust and removed dry grass. The
sawdust was spread by placing the material – scooped by hand from a bucket –
close to the roots of the plants. Several different tasks were often performed
in the course of one day. She remembered working with Harmit, Manjit and Hakam
– from the Gill family – but does not recall the names of others who also
worked at these tasks, partially because she was employed there only for a
short time and did not make friends with co-workers. Although she did not recall
the weather conditions – generally – in the summer of 1998, the policy at
Gill Farms was that workers kept picking unless the rain was very heavy.
Otherwise, pickers wore appropriate raingear and work continued. When picking
berries other than blueberries, the appellant stated it is usual in the
industry to stop picking during the rain if berries are intended to be sold on
the fresh market and to continue only if the produce will be used to make jam.
The appellant stated that her only experience with blueberries was when
employed at Gill Farms in 1998 and she did not seek employment there in 1999
because she did not like picking that berry. Her husband – Himmat –
was laid off earlier but continued to drive her to and from work each day and
on the two or three occasions he could not take her to and/or from work,
she asked a member of the Gill family for a ride. During 1998, one of her
daughters was employed, the other took night classes and her son was in high
school. The appellant stated that her husband dealt with Hakam Singh Gill
concerning all aspects of their employment including the settling–up at the end
of the season. Her husband handled all financial matters and because she did
not have her own bank account all of her pay cheques were turned over to him
for deposit. She requested cash for spending money and to operate the household
and a supply of cash was maintained within the household for that purpose and
for spending by their children. During the picking season, her husband carried
her bucket of berries to the scale where it was weighed by Harmit. Even though
she received one or two warnings from one of the Gills that the volume of
berries picked was less than desired, she had believed her production – and
that of her husband – was average when compared with the rest of the pickers.
The appellant stated she was paid by the hour for working at Gill Farms and
when working at picking flowers for Lakeland, she is paid
by the piece – 20 cents per bunch of 10 daffodils – but is remunerated on
an hourly basis when performing other types of work for the same employer.
Currently, she earns $10 per hour as a farm worker and considers herself
to be more aware of working conditions and related matters than in 1998.
The appellant identified an ROE – Exhibit A-14 – issued to her by Lakeland
Flowers Ltd. in respect of her employment from March 12 to April 22,
1998 during which period she worked 210.25 insurable hours and had insurable
earnings in the sum of $1,632.10. The appellant also received an
ROE ‑ Exhibit A-15 – from Berry Haven Farm Ltd. stating
she had worked 360 insurable hours from June 21 to August 1, 1998 and had insurable
earnings in the sum of $2,709.11. Another ROE – Exhibit R-10, tab 11
– issued by Gill Farms for the period from August 2 to September 26,
1998, stated her insurable hours were 421 and her insurable earnings were $3,283.30.
A letter – Exhibit A-16 – dated February 8, 2000, was sent to the appellant by
an Insurance Agent employed by HRDC stating therein that since September 28,
1997, the appellant had been employed only 851 hours and 910 insurable
hours was the amount required to qualify for UI benefits. The appellant
agreed with the observation by her agent – Ronnie Gill – that if all the
insurable hours in the 3 ROEs were added together, the total would be
991.25, more than enough to qualify. The appellant recalled working at Lakeland as early as February 25 one year but
stated the entire season does not vary more than 3 weeks in total and –
therefore – cannot be certain of the number of hours of work available within a
season. She recalled attending the HRDC interview on January 18, 1999 and
because she could not speak and/or understand English, Jugender Dhaliwal
interpreted from English to Punjabi. Her husband – Himmat – was interviewed
separately in another room. The appellant stated her husband ‑ sometimes
– was taken away from his picking duties and instructed to repair holes in the
nets. She also saw Hakam Singh Gill operate the tractor in order to spray the
plants in areas where no picking was being done. Although she could not recall
the specific task performed on her last day of work, it was one or more of the
several tasks mentioned earlier in her testimony.
[66] The appellant – Santosh Kaur Makkar – was
cross-examined by Shawna Cruz who referred her to a statement – tab 1 – dated
April 28, 2005 that had been produced pursuant to an undertaking arising from
Discovery where the appellant had been requested to locate picking cards issued
in the course of her employment with Gill Farms. The statement set forth the
following information: the appellant and her husband were issued picking cards
which he handled and the cards are no longer available because she and her
husband have moved two or three times and the cards probably were discarded
because they were no longer of any value to them. The statement went on to
confirm that the appellant did not have a bank account – either solely or
jointly – in 1998 and that all her cheques were endorsed and deposited to her
husband’s bank account. In light of the contents of said statement, counsel
asked the appellant why she would have said – in direct examination – that she
did not know whether picking cards had been issued. Counsel also referred to
page 2 of tab 1 – Endorsement of Interpreter – wherein Gurdev
Singh Gill – father of Ronnie Gill, agent for the appellants and
intervenors and not the appellant with the same name who is a party to the
within proceedings – certified that he correctly interpreted the statement from
the English language into the Punjabi language and that the appellant appeared
to fully understand the contents. The appellant stated that picking cards had
been issued by the Gill family so they could see how many berries people picked
in a certain period. She did not have a specific recollection of a telephone
conversation with Harby Rai on August 16, 1999, but agreed she would
have attempted to provide correct information to Rai. With respect to the
answers provided in the Questionnaire – tab 4 – she considered them
to have been true to the best of her knowledge and appreciated that when
testifying at Discovery – in November, 2002 – she had been under an obligation
to speak the truth. As a result of completing Grade 10 in India, the appellant is able to read and write Punjabi. She
stated she can sign her name in English and understands some English,
particularly as it relates to names of plants, berries or other work-related
objects or actions. At the time of hiring, the appellant stated she and her
husband had not known how long the job would last. The appellant stated she had
no independent recollection about how she went to work on her first day but
when she and her husband worked together they usually rode home together in
their own car unless he happened to leave work earlier if he was not feeling
well due to the heat. Counsel referred to the appellant’s time sheet – tab 13 –
and to the time sheet of her husband – Exhibit R-9, tab 14 – indicating
that he had two days off per week while she worked every day. The time
sheets showed the appellant and her husband – if working together – each worked
8 hours, per day. She could not recall if she and her husband rode to work in a
Gill Farms vehicle but in the event Himmat did not drive her to work then she
rode with a member of the Gill family. Counsel advised the appellant that her
husband – Himmat Singh Makkar – testified he drove her to work in the morning
but one of the Gills drove her home at night. The appellant stated she did not
have a strong recollection of events so could not offer an opinion whether her
husband’s memory of details concerning transportation to and from work was
accurate as stated in the course of his testimony. She recalled riding to work
in a pick-up owned by Gill Farms and that there were two or three seats in the
back. She pointed out that she obviously got to work and returned home by some
means and was not concerned with details such as the identity of her fellow
passengers, if any, since most Gill Farms workers lived in the opposite
direction from the farm. She stated she never considered it would be important
to have recorded – in some way or other – such information and there is no
document or memory aid to assist her in this respect. Concerning the start time
in the morning, the appellant explained that one can tell by looking at the
berries whether there is too much dew to start picking and if that is the case,
one has to wait until it disappears. She recalled that now and then someone
from Gill Farms telephoned their house to advise there would be a late start for
picking that day. The appellant agreed with counsel that she had provided
different start and end times in the course of interviews with Turgeon, at
Discovery, and in direct testimony but stated she had not worn a watch and was
only providing estimates of times that may have varied for some reason. In the
Questionnaire – tab 4 – an answer provided indicates the appellant
found out about the job at Gill Farms through the Indo-Canadian Society
(PICS) and she obtained the phone number and called Gill Farms. The
appellant agreed that answer may be correct but she also has a recollection
that she went to Gill Farms, spoke to Hakam Singh Gill and Rajinder Singh Gill
and started work that same day, although it is possible that meeting was held
on another day, before her start date. The appellant estimated she picked
between 250 and 300 pounds of blueberries per day and confirmed the
estimate provided by her husband during his testimony that he picked about
200 pounds daily. She stated she did not know the reason for the
difference in the hourly rate – $7.50 – she earned and the one – $8.00 –
paid to her husband nor why he was laid off earlier. She did not recall whether
her husband was accustomed to taking off one day per week or whether it
was two. Counsel advised the appellant that according to her time sheet – tab 13
– she worked every day but during the interview – tab 8, p. 44 – with
Turgeon, she stated "… Hakam Gill called us not to come when it
rained". Counsel asked why she would have given that answer if she had
actually worked every day during the period of her employment. The appellant
had given an answer to Q. 26 on the Questionnaire – tab 4 – that she
had not missed any work due to bad weather because even if they had gotten a
call about the rain, they went to work when it cleared up or, if already at
work, waited inside the garage until picking could resume. While working, the
appellant stated she did not take note of the names of other workers apart from
one or two because she was used to saying the equivalent of "hello"
and "goodbye" and did not spend time socializing and there was no
link to permit a close relationship to develop. She estimated there was a work
force of 25 to 30 during peak season and agreed she had earlier provided
an estimate of "50 to 60" – tab 8, p. 45 – when
interviewed by Turgeon. Counsel suggested it was somewhat strange to provide
these two answers if she had actually worked for Gill Farms. The appellant
stated she had not devoted much attention to that estimate when answering
Turgeon’s question about the number of people she had worked with at the farm.
She confirmed that Manjit Kaur Gill gave instructions where to pick berries and
that she saw her every day and that Harmit Kaur Gill and Hakam Singh
Gill also gave directions to workers. Counsel referred the appellant to
Turgeon’s question about the identity of her supervisor – tab 8, p. 44 – and
to her response that "it was either Hakam Gill or his wife Harmit Gill"
and that it was "mostly both of them were there". There had been no
mention whatsoever of Manjit Kaur Gill. Turning to the issue of
duties other than picking berries, the appellant described removing grass by
handpicking – while wearing gloves - provided the ground was soft as otherwise
it was necessary to use a small tool to dig out the grass so it would not
inhibit growth of the plant. The sawdust was carried in a wheelbarrow and a
bucket was used to carry that material to the plants where it was spread. The
appellant stated that "work is work" and she does not recall the
amount of time required to perform these menial tasks. She stated she saw Hakam
spraying the grass even though she could not recall that – at Discovery – she
testified she had not seen anyone spraying. She estimated that washing buckets
occupied one or two days and that it took one entire day just to remove
one section of net and roll it. Concerning the matter of picking cards, the
appellant agreed she was issued her own picking card but her husband kept custody
of it. She recalled the cards were punched and also written on
so that Gill Farms would know what the average production was
for each day. When shown the picking card – Exhibit A-1 – the
appellant was unsure whether the cards she had used were the same nor was she
able to state with reasonable certainty whether she had been given one part of
a picking card or if her cards were in duplicate. Counsel advised the appellant
that – at Discovery – she had stated there were two parts to the card and that
one remained with the Gill family during the day but was handed to her husband
later. The Appellant responded that her husband was informed of the average
production and the number of hours worked on a particular day. If the picking
card was handed to her, she took it home but sometimes they were merely told
the amount of berries they had picked. During the interview – tab 8,
p. 46 – the appellant informed Turgeon she had been paid "every 2 weeks".
The appellant agreed that answer was not correct and did not know why she had
said that. She recalled her husband collected her two pay cheques in the sums
of $1,316.25 and $1,601.23, respectively, and that both had been deposited to
his credit union account. The appellant stated neither she nor her husband had
paid any money back to the Gills in respect of their employment at Gill Farms.
Counsel referred to the interview – tab 8, p. 47 – with Turgeon
where the appellant stated that when working at BerryHaven/Penny’s Farm, "sometimes
my son would work and I would get credit for the hours". Later, Turgeon
pursued this line of questioning and the appellant stated she was "not
sure" about whether she had been credited on her ROE for hours worked by
her son but at that time he was a student and came to her workplace to help,
although she was not sure of the details. The appellant stated she did not
recall having made those statements concerning her son.
[67] The appellant – Santosh Kaur Makkar – was
re–examined by Ronnie Gill. The appellant agreed that when interviewed by
Turgeon, she had not recalled having worked at Lakeland until Turgeon specifically asked whether she had ever worked picking
flowers. She stated she worked for Penny’s Farm and at Lakeland in 1999 and qualified for UI benefits based on the number of insurable
hours accumulated at those two jobs.
Surinder Kaur Gill
[68] Surinder Kaur Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by Russell
Gill, interpreter. The respondent’s book of documents relevant to this appeal –
2001-2115(EI) – is Exhibit R-6. She is the wife of Gurdev Singh Gill – the
appellant in appeal 2001-2098(EI) – who testified earlier in these proceedings.
The Minister decided the appellant was not engaged in insurable employment with
Gill Farms during the period from August 3 to September 12, 1998
because she was not dealing with the payor at arm’s length. In the alternative,
the Minister decided that if said employment was insurable, she had worked 108
insurable hours and had insurable earnings in the sum of $810.56. The
appellant’s position is that she worked 324 insurable hours and had
insurable earnings of $2,614.68 as stated in her ROE at tab 10.
[69] The assumptions of fact specific to the appellant,
stated in paragraphs 8(h) to 8(r) inclusive, are as follows:
(h) the Partnership employed the
Appellant in the Period as an hourly employee to pick blueberries and to
provide various other related services for the Farm such as gathering dried branches,
putting up and taking down nets, hoeing, weeding, spraying, washing buckets
etc.;
(i) the Partnership's records of
hours worked did not reflect the hours actually worked by the Appellant;
(j) there were times when, in
accordance with the payroll records, the Appellant was purported to be working
and being paid when there was in fact no work for the Appellant to do;
(k) the number of hours purportedly
worked by the hourly employees, as recorded in the Appellant's payroll records,
were about three times the industry standard for the size of the Farm;
(l) the Partnership's wage expense
for 1998 exceeded the revenue generated in that year;
(m) the Partnership issued a Record
of Employment to the Appellant on or about September 24, 1998
indicating that the first day worked was August 2, 1998 and the last
day worked was September 12, 1998 and that the Appellant had 324
insurable hours during the Period, with insurable earnings of $2,614.68;
(n) at all times material hereto,
the Appellant was not dealing with the Partnership at arm’s length;
(o) having regard to all the
circumstances of the employment, including the remuneration paid, the terms and
conditions, the duration and the nature and importance of the work performed,
it is not reasonable to conclude that the Appellant and the Partnership would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length;
(p) the Appellant actually worked no
more than 108 hours during the Period;
(q) the Appellant was paid at a rate
of $7.50 per hour plus 7.6% holiday pay; and
(r) the Appellant's earnings in the
Period were $810.56.
[70] Surinder Kaur Gill testified she was born
in India in 1949 and came to Canada with her husband and 4 children in 1996.
They lived with their daughter until moving to accommodation at Narang Farms
where she and her husband both worked picking strawberries by sitting down in
the middle of the row. She also had picked raspberries, placing them in a
bucket tied around her waist. She picked blueberries every year and in 2005
picked both raspberries and blueberries on one farm where she was paid an
hourly rate for picking 20 flats – 200 pounds – of raspberries each day.
Currently, she is working as a farm labourer through a labour contractor and is
paid hourly – $8.32 – for picking blueberries between 9 and 11 hours every
day. She receives one picking card and her hours of work are recorded on it and
it is also punched when berries are weighed at the scale. In 1998, the appellant
and her husband began working at Gill Farms on August 3, after their layoff at
Sidhu Farms where they had been picking raspberries. In her opinion, someone
from the Sidhu family made the arrangement with a member of the Gill family
for her and her husband to be employed at Gill Farms. She did not recall the
amount of her hourly wage but worked with her husband picking blueberries as
instructed by Manjit Kaur Gill. She started work at about 8:00 a.m.
and finished at or near 5:30 p.m. and these times varied no more than 15 minutes
each way and if there was a late start then there was a later finish. She rode
to work with her husband and – occasionally – some women from Aldergrove. On
her first day, she recalled riding in a vehicle driven by Harmit Kaur Gill
who drove her most of the time afterwards except on some occasions when Manjit
or one of the Gill children was the driver. She and her husband lived at Sidhu Farms
which was about 12 or 13 minutes away from Gill Farms. Because
no other Gill Farms workers lived on the Sidhu property, she and her
husband rode alone in the morning and again in the evening. On occasion, their
son came to work with them and played with the younger Gill children while
other times he stayed with a relative in Surrey.
In late 1998, she and her family moved from the Sidhu Farms to an
unfurnished residence in Abbotsford and they had to purchase furniture. She
recalled having a joint account – with her husband and Jasbir – at Khalsa
Credit Union but they discovered Canada Trust stayed open later so they also
opened an account at a branch in Abbotsford. At her current job, she is paid
every two weeks but at the end of the season – in 1998 – there was a
settling-up process that was handled by her husband – and co-appellant – Gurdev
Singh Gill. In India, her husband had managed the farm while
she worked inside the family home and assumed responsibility for feeding the
employees and providing them with water. In Canada,
she rarely attends at a financial institution but was aware her pay cheques
from Gill Farms were deposited and that cash was kept in their house for use by
family members. She stated her family was accustomed to using cash since that
had been their usual practice in India and it was more convenient to have a
fairly large amount of cash on hand rather than having to obtain a ride from
someone – to either the credit union or the bank – since neither she nor her
husband had a driver’s licence. Even when employed at Sidhu Farms, she and her
husband were not paid every two weeks and their daughter from Surrey bought
groceries for them. The appellant recalled an interview with Emery at an HRDC
office on January 18, 1999 – where Paula Bassi was the Punjabi
interpreter – and stated that even though she was not feeling well, attempted
to answer the questions put to her. While working at Gill Farms, a picking
card was issued to her and/or her husband and she thought it was being used by
the Gill family to monitor average production during a day. The berries were
poured from the small bucket into a larger container and either her husband or
Manjit Kaur Gill carried it to the scale unless she and her husband were on
their way to coffee and/or lunch break, in which case they took their berries
with them to be weighed if one or more of their containers was full, or nearly
so. The appellant stated she can pick 300 pounds of Blue Crop berries
a day now but in 1998 was picking about 200 pounds a day, on average.
She explained the difference is due – mainly – to the newer version of that
variety which is capable of producing more berries so it is easier to pick a
greater volume in a day. In her experience as a farm worker, she has received a
picking card at various times during her jobs but not every day since the
frequency seemed to depend on the policy of the particular employer. In her
current employment, she receives a picking card each morning and at quitting
time returns it to the person in charge of the scale. She and her husband now
receive a pay cheque every two weeks along with a stub showing the details of
hours worked, the rate and the amounts of deductions. She stated her husband
also keeps track of their hours and reviews the cheques to ensure they are
accurate. The appellant recalled that – at Gill Farms – quitting time was
announced by Harmit or Manjit or Hakam Singh Gill after he had returned from
his job. She also remembered seeing Rajinder Singh Gill on the farm at various
times but more often near the end of the work day. The appellant stated that
even though she had helped to take down the nets over one or more types of
blueberry plants before her layoff, one variety of berry was still being
picked. The appellant stated it was her intention in 1998 and thereafter to
work as much as possible each season whether employed as a farm worker directly
by a farmer or through a labour contractor and when laid off by one farm,
attempts to find another job as soon as possible. She estimated that she worked
more than 900 hours in 2004.
[71] The appellant – Surinder Kaur Gill – was
cross-examined by Amy Francis. The appellant stated she finished Grade 5
in India and can read and write Punjabi and
understand numbers. With respect to travelling to and/or from work, she stated
that to the best of her knowledge some female workers from the Aldergrove area
rode – now and then – in the same vehicle as her and her husband. In her
recollection, they started work about 10 or 15 minutes after their arrival at
Gill Farms – around 8:00 a.m. each morning – after having travelled
12-15 minutes from their residence at the Sidhu Farms. She could not
recall whether she and her husband were the first workers on site. Counsel
informed the appellant that – at Discovery – she stated “all used to start
together” and later confirmed – in response to another question – that she and
her husband waited for others to arrive and "all of us would start
together". The appellant stated that answer is not correct except that she
and her husband started work together. She suggested she may have been confused
with the practice followed at other farms where she has worked. She agreed with
counsel’s suggestion that her memory should have been better in 2002 than
in August, 2005 with respect to details of her employment in 1998. The appellant
stated that if the driver was going to be late picking up her and/or her
husband in the morning, someone from the Gill family would phone to advise them
of the driver’s probable time of arrival. The appellant identified her
signature on the last page of the Questionnaire at tab 3. Counsel referred
her to Q. 6 concerning the time she was picked up each morning and to the
written response "No set time. They told us to be ready and they will pick
us up. They would tell us to be ready at 7:30-8:00 a.m., but were rarely on
time". The appellant stated this answer was not correct even after counsel
pointed out a similar answer using the words "rarely on time" was
provided to Q. 13, inquiring whether she had been picked up at the same
time each morning. In answering Q. 19 concerning quitting time, the only person
mentioned is Manjit who told workers when to stop. The appellant recalled that
she and her husband were taken home soon after work ended for the day, usually
arriving home by 5:45 p.m. but – sometimes – had to wait if the farm
vehicles were being used for some other purpose. At Discovery, she stated the
drop-off time each evening was at 6:00 or 6:15 p.m. and went on to say that
time frame was inflexible because “they” – meaning the Gill family – had fixed
the time. With respect to Q. 10 concerning the number of people in the
van/bus with her, the answer provided was "Varied. From 2-6 people".
In answering the following question, there is reference to a “white truck” and
to a "blue car". The appellant stated she cannot recall –
specifically – riding in a vehicle with as many as 4 other people but
conceded it may have happened, although rarely because there would not have
been any need to ride in the same vehicle as any of the workers who lived in
Abbotsford. She reiterated her comment that she and her husband were usually
alone in a vehicle whether going to or coming from work. She stated their hours
of work were recorded on a calendar. Counsel informed the appellant that the
answer apparently given by her to Emery, as recorded at tab 7,
p. 42, whether she kept track – personally – of days/hours
worked was "neither can read/write – so no records were kept". The
answer to the following question about who kept track of days/hours worked was "Manjit’s
sister kept track of hours, etc.”. The appellant replied that she always wrote
down the number of hours worked each day and does not know why she would
have said that she had not kept her own record. She was referred
to the notes – tab 4 – of Harby Rai concerning the telephone conversation
between Rai and herself and her husband on August 19, 1999. When
referred to a paragraph of the notes – p. 35 – where Rai recorded the
statement – by the appellant – "they put up the nets before berry was
picked. They picked berries, then they rolled the nets", the appellant stated
there must have been a misunderstanding about the word used because the berries
were already being picked when she and her husband started work at Gill Farms.
She denied telling Rai that she had ever put up nets prior to starting to pick
berries. With respect to the practice of emptying berries from the small bucket
into another container at Gill Farms, the appellant did not recall putting her
berries into flats, although she had seen those containers on the farm and may
have emptied her small bucket into flats for one or two days during the course
of her employment. The appellant stated that she thought all berries were
weighed because the Gill family wanted to know the amount picked by each
worker. The appellant stated that on those days she and her husband both worked
they were always together and each carried their own large buckets to the scale
if heading for a coffee/lunch break. Her husband waited there until their
berries were weighed and their cards were punched and then joined her at the
location where workers were taking a break. Counsel referred the appellant to
her answer – at Discovery – where she had been shown a copy of a picking card
the same as the one in Exhibit R-1, tab 33 from Gill Farms. In responding
to a question, the appellant stated she was "picking jointly with my
husband" and then continued to explain that they worked together in the
same row, although each had a separate bucket. The appellant stated she had not
intended to convey – at Discovery – the impression that she and her husband
shared a picking card and a bucket and confirmed each had their own picking
card even though she had referred – at that time – to a "card" that
was retained by her husband until he gave it back to the Gill family member at
the scale. The appellant stated a picking card was handed out most days and did
not have any preference as to whether that recollection was more accurate than
the one provided at Discovery where she stated a picking card was issued to her
"occasionally". During the interview – tab 3 – with Emery, Q. 40 – p.
31 – was "What did you use picking card for?" The recorded response
was "I gave it to my daughter" and in answering the following
question whether she used a picking card for every day of work, stated "Yes".
The appellant stated she cannot explain why she would have given those answers
and is not accustomed to signing her name to a document without being
aware of its contents. Even though her agent – Ronnie Gill – interpreted
the questions and completed the Questionnaire on her behalf, the appellant
doubted she had mentioned giving a picking card to her daughter because no
cards were required in order to calculate the amount of wages earned. Counsel
pointed out that Ronnie Gill had noted on the first page of the
Questionnaire – tab 3, p. 26 – that the appellant had looked up some
information – about dates – in a book but had been informed that Gill preferred
the answers to come from the appellant’s own memory for the purposes of
completing the Questionnaire. The appellant did not recall the existence of any
book or notebook and added that any record – such as the calendar – would have
been discarded once the settling-up was completed and would not have been
available as late as February 23, 2000, the date on the Questionnaire. The
appellant recalled the scale was moved to different locations on the Gill farm
in order to shorten the distance required for berries to be carried from the
spot where pickers were working. If berries were being picked in rows close to
a garage, then the scale was moved next to the garage. At Discovery, the
appellant stated Harmit weighed berries in the garage – mostly – and did not
remember the scale being used in the field. The appellant replied that her
brain was not working very well at Discovery as she was very upset but was not
as nervous when testifying in the within proceedings. She stated that no money
was paid back to the Gill family in relation to the employment of herself and
her husband. During her interview, the appellant was asked – tab 7, p. 43
– whether she paid cash back to the Gills in exchange for weeks (an
ROE) and Emery recorded her response as "her husband took care of it – she
doesn’t know – the men make the arrangements". She recalled the reason for
the delay in not depositing her cheque dated October 26, 1998 – tab 9
– until November 19, 1998 was due to the fact Gill Farms had not been paid
by the cannery. She applied for UI benefits ‑ tab 11 – and
identified her signature. She stated no one from Gill Farms assisted her to
complete the form.
[72] The appellant – Surinder Kaur Gill – was
re-examined by her agent. The appellant stated there were inconsistencies in
some of her answers concerning start and end times for work but she was not
wearing a watch. She demonstrated that she is capable of telling time by noting
the correct time on the wall clock in the courtroom. She explained she meant to
say – during the course of her answers at various times – that she had paid
particular attention to the time she arrived home from work. During the
interview with Emery – tab 7 – the appellant was requested to describe work
done in sequential order to which she responded – p. 41 – “picked blueberry,
rolled up netting” without any mention of putting up any nets.
Hakam Singh Gill
[73] Hakam Singh Gill (Hakam) testified in
Punjabi and the questions and answers and other aspects of the proceedings were
interpreted and/or translated from English to Punjabi and Punjabi to English by
Kashmir Gill, interpreter. Hakam and his brother – Rajinder Singh Gill – are
partners in the business operating Gill Farms, and are intervenors in the
within proceedings. Hakam stated he came to Canada
– at age 18 – from India where he had completed the 8th grade
before going to work on his grandfather’s 13-acre farm where trees were grown
and buffalo were raised. His grandfather permitted him to participate in the
management of the farm apart from his responsibility to feed and care for the
animals which occupied about 3 hours each day. In Canada,
he attended school for 6 months in Mackenzie, B.C. and left in the 9th
grade in order to begin working for Canadian Pacific Railways (CPR) doing track
maintenance under the supervision of a foreman. Later, he worked in Prince George, B.C., loading and sorting freight. In 1975, he moved
to the Abbotsford area and after his marriage to Harmit Kaur Gill, they lived
with his brother, Rajinder in Langley. The appellant worked in a planer mill for
3 years and then at Fraser Pulp Chips Ltd. where he is currently employed.
The house in Langley was registered in Rajinder’s name but was
jointly owned with Hakam and they traded it in the course of acquiring – in
September, 1979 – the property used thereafter by the partnership created to
operate Gill Farms. Hakam stated it had been his idea to purchase the acreage
and Rajinder accepted his plan to develop the land so it would support a
farming business. Prior to embarking on the purchase, Hakam had discussed the
farming business with some friends who had experience in that industry and came
to the conclusion a reasonable amount of income could be earned from that
endeavour. At the time of acquisition, the land was sowed totally to grass
since the previous owner had raised cattle. The grass was removed by the middle
of November – before the rains came – through a series of 5 or 6 procedures
in which plows and disk/cultivators were used. The Gill brothers planted
strawberries and some crop was harvested in 1981. However, after the second
year, some of these plants were plowed under and raspberries, broccoli,
cauliflower and sprouts were planted. Success was somewhat mixed because the
farm had a high clay content which was not conducive to growing these crops. In
total, 6 acres had been devoted to strawberries but the life span of the
plants was only 3 years and, whereas the land owned by his friends in
Abbotsford was capable of growing strawberries, raspberries and vegetables, he
discovered – through research – that he should put the partnership land into
blueberries and proceeded to carry out – in stages – that plan. During this
period, both he and his brother worked at full-time jobs and were investing in
the farm. In 1982, Hakam and his brother planted one acre of two–year old
blueberry plants and because the growth was satisfactory, decided to increase
the acreage of blueberries and added another 4 acres in 1984. In 1986, more
land was planted in blueberries and by then the original plants in the one-acre
patch were between 6 and 7 years old. However, the plants had been
obtained at a low price and produced different varieties of berry and some died
and had to be replaced. Because the land was uneven, some plants in areas of
high clay content did not survive, partially because there was no irrigation
system in place at that point. Although all the plants were producing berries
after 5 years, birds were eating the crop and financial success was impeded
because Gill Farms did not have an effective marketing plan. In 1994/1995, Gill
Farms began using nets to protect the crop in order to attain a profitable
level of production. Prior to acting on advice from others in the industry to
purchase the nets, the intervenors had attempted to scare away the birds by
drumming and using a propane gun to explode at regular intervals. The flock of
birds – composed of 5 or 6 different species of sparrow – lived nearby and were
joined by numerous crows that also ate the berries. The nets were a significant
improvement and Hakam stated he also learned better farming techniques with
respect to the blueberry plants. He sought advice on a regular basis about
matters such as spraying, watering, and often had to gain experience on a
trial-and-error basis. In 1992, he installed an irrigation system using a well
and a small motor to supply water to the crop. Someone suggested that water
could be stored in a low‑lying area so a large volume could be collected
during the period when the rains were frequent and heavy. Following up on that
recommendation, he hired an excavator to dig a hole to create a reservoir and
thereafter water could be pumped directly to the crop using that source in
conjunction with the supply from the well. By 1998, the irrigation system was
working satisfactorily but as early as 1993, a pipe – one to one and one-half
inch in diameter – carried water directly to the roots of plants and was
dispersed – drop by drop – through a series of drippers. As a result of proper
irrigation, the plans grew better and the amount of berries produced increased
on an annual basis, aided in part through adoption of several measures,
techniques and improvements by the intervenors over the course of several
years. Hakam stated he learned that spreading one or two shovelfuls of sawdust
around the roots served to protect the plants by preserving moisture and
shielding the roots from the effect of direct, intense sunlight during the
summer and against the cold in winter months. During the hot part of the
summer, temperatures at the farm can reach the high 30s in Celsius degrees for
a week or more. He had been surprised to discover there could be such a
difference in land quality – particularly with respect to clay content –
between their land in Aldergrove and the property owned by his friends in
Abbotsford even though the distance between the two areas was only 5 to 10 kilometres.
He stated that in Indian culture, there is a strong attachment to the original
land and house and efforts will be made to retain that property even if not
inhabited or otherwise used personally. As part of an overall plan to improve
growing conditions, he used spray to inhibit the growth of grass and applied ‑ twice –
the proper substance in April to kill fungus and from time to time either
fungicide or pesticide was applied to resolve the relevant problem. He did
spraying two or three times once the flowers appeared on the plants.
Throughout, he relied on advice provided by retailers of those chemical
products. During the growing season, no sprays are applied directly to the
plants but these products were used in the summer to kill the grass which often
grows to a height of 12 to 18 inches and uses the nutrients plants require
to produce berries. Hakam stated great care is taken to ensure no spray falls
onto any of the blueberry plants. Another problem is caused by slugs (a small
shell-less mollusc member of the class Gastropoda) that hide in the grass and
transfer from the high stalks to the bushes which they will eat along with the
berries. Another technique employed was to trim the branches of the plant in a
way that would reduce the potential for contact with the grass. Hakam stated he
is required to undertake the spraying because the pickers complain about the
high grass, which – due to their experiences in India
– leads them to believe hides poisonous snakes. The spraying mechanism consists
of a tractor and a tank to which is attached long hoses that must be held by
workers in order to prevent contact with the blueberry bushes as the weight of
the hose(s) will damage the plants. In addition to spraying, Harjit
and Manjit trample the grass to flatten it so workers can see there are no
snakes. After the spray had killed the grass, no further steps were taken
unless the dead material was near plant roots, in which case it was
removed – manually – using a small hand tool. Towards the end of
October – after harvest – sprays were applied to kill certain insects which
laid their eggs at this time. Hakam stated that hoeing is carried out after May 15th
each season and takes between two and two and one-half weeks to complete.
At the end of the picking season, a considerable amount of time is needed to
take down the nets, repair any damage and roll them properly until needed next
year. He recited other tasks which are performed at the end of the season
including hoeing, spreading of sawdust, if required, and removal of dry and
broken branches by workers to prevent insects from using these parts as a
convenient place to deposit their eggs. The sawdust is hauled – from the mill –
to the farm in a truck and is dumped on a vacant space. Wheelbarrows and
buckets are used to transport the sawdust from the pile to any plants needing
sawdust around their base to a depth of 1.5 inches within a circumference
of 1.5 feet. In Hakam’s experience, most plants required some sawdust
because movement by the workers – during the picking – removed some of that
protective material. The heavy pruning is performed during winter months and is
undertaken by Hakam – personally – in order to ensure that branches broken by
snow, ice or heavy rain are removed. Later, some lighter follow-up pruning can
be performed by workers. He stated new workers are hired each season and have
to be instructed with respect to the various tasks that must be performed. He
described the process of installing the nets which must be untied and
unrolled and then carried – by three people – to the rows of
poles which have been inserted into the ground. Then, two or more workers mount
ladders and must take great care to ensure the nets do not touch the plants
while hanging them onto the wires. Sometimes, if the hooks are not placed
correctly, the net becomes stuck and it takes time to resolve that problem. The
poles – 8 feet high – are approximately 30 feet apart. Nails are attached
to the top of poles and a main wire is used in order to attach other wires. The
net sags down between the poles to a height of about 6 feet from the
ground. While working with a section of net, workers hold the material above
their heads while others climb up ladders holding a piece of net with one hand
and – with the other – hook the attached wires to the main line strung between
the poles. The total net system is made up of two sections, each 300 feet
long. Earlier, Gill Farms used a one-piece 600 foot-long net but it
was more difficult to install. Hakam stated the net installation is undertaken
– mainly – by female workers – aged 40-45 – and even though new workers are
hired each year, they are mostly within that approximate age bracket. He stated
he would prefer to have experienced people return to work the following season,
particularly with respect to installation of the nets since it is so
time-consuming and new workers have to be instructed and then shown
how to carry out the necessary tasks. Many workers are newly-landed immigrants
but the policy at Gill Farms was not to inquire further than to obtain a worker’s
name, address and SIN number and other forms of identification – including
photo identification – was not requested. Hakam stated that there is always a
problem hiring pickers so it is advantageous to offer an hourly wage to workers
who will remain on the job until no longer needed. Other workers are paid on a
casual basis according to a piece rate. In 2005, that rate is 45 cents per
pound for workers who have been on the job since the beginning of the season
when berries were not as plentiful while people starting later are paid 40 cents
per pound or 42 cents if they have their own transportation to and from
work and promise to stay until the end of the season. He stated that with
respect to the 2005 crop, some varieties had suffered extensive damage due
to an early frost and because the probable total volume of berries would be
less than in earlier years, he anticipated the hourly workers would be able to
handle the harvest on their own. In 2004, the crop was heavier and the
appellant estimated each worker was picking between 30 and 35 pounds
per hour. While he preferred to pay workers an hourly wage, he would agree to
compensate a picker by a piece rate if that person insisted. As a result of the
good harvest in 2004, the price of farmland in the area increased because
potential buyers saw an opportunity to earn profit. Hakam stated although Gill
Farms is currently a profitable enterprise, it required many years of effort,
investment and learning all of which was part of a process to increase the crop
yield. He acknowledged his brother – Rajinder – was not very interested in
farming but Ranjinder’s wife – Manjit – was very involved in the business. Each
year the brothers consulted the farm accountant and sought advice with respect
to the farming operation. Over the course of many years, the farming operation
lost money but Hakam stated he was advised by the farm accountant this was not
unusual within the farming industry. Later, another accountant was
hired and the financial picture also began to improve. Throughout, Hakam
sought advice concerning rates of pay and other labour practices
applicable to farm workers and discussed – with family members and
knowledgeable friends – methods of increasing income. His daughter –
Satnam – obtained a licence permitting her to mix the spray for application to
the crop and she read the labels on the containers and ensured the instructions
concerning use of the product were understood and that it was used in
accordance with the manufacturer’s directions. The products were purchased from
a Punjabi‑speaking clerk at the local retailer and Satnam supervised the
mixing. Once that was done, Hakam operated the tractor which pulled the trailer
carrying the tank to which booms, hoses and nozzles were attached. Currently, a
new spraying system is used but the older method was still in place during
1998. Hakam stated he attempted to obtain a licence to use pesticides and
herbicides but his ability to read and write English was too limited and he
dropped out of the class. Gill Farms paid Satnam for her time during the one or
two days a season her expertise was required. While Hakam was concerned
with daily operations on the farm, Rajinder was in charge of banking and – in
1998 – the partnership had to make monthly payments on a mortgage against the
farmland. During 1997-1998, a new house was constructed in which Hakam and his
family, Rajinder and his family, and their mother lived. The former residence –
in existence when the land was purchased – was used as a family residence until
the new house was ready and then was rented out. Hakam stated it had been
necessary to borrow money from friends from time to time, particularly prior to
1998, and probably during that year, too. He used employment income and revenue
from berry sales to repay loans and when the older children began working at
outside jobs, they were able to assist in paying household expenses. He
referred to the sketch – Exhibit R-1, tab 4, p. 20 – and to the area
designated "new house" at the front of the property by Lefeuvre Road. The old house is at the rear and there is also a
trailer about 25 feet from the neighbour’s fence. There are blueberry
plants on three sides of the old house close to the area on the sketch marked
“sand filter” beside the driveway. About 8 or 10 truckloads of sawdust are
hauled from the mill every 3 or 4 years and placed in a large pile that does
not have to be covered during the winter because sawdust is not affected by
rain. Hakam and his wife have 3 sons and 3 daughters. One son worked one
or two seasons on the farm and was paid wages. On occasion, one or more of the
children carried out some tasks when needed and Rajinder’s 3 sons and one
daughter also worked from time to time, as required. In 1998, Gill Farms
had several vehicles which were used for various purposes including delivering
berries to canneries or other purchasers and to transport workers. There was a
4-door pickup truck capable of carrying the driver and 7 passengers and
two cars. All vehicles were shared by the members of both families. Hakam
stated he used the pickup to haul berries to a cannery after returning home –
at 4:00 p.m. – from his job at the mill. Rajinder and his sons also hauled
product to the canneries. Major problems with the vehicles were fixed at a
commercial garage but ordinary maintenance was carried out by Hakam’s son and
Rajinder’s son. During the summer, Hakam took holidays during the last week of
July and the first week of August in order to work on the farm. Upon returning
to the farm at 4:00 p.m., there was only another hour or so of work remaining
for the day and he emptied buckets of berries into flats, sorted berries and
put them into 40-pound lugs which – in 1998 – had to be loaded manually onto
the truck because Gill Farms had not yet acquired the Bobcat with loader.
In 1999, Gill Farms experimented with a blueberry-picking
machine – pulled by a tractor – but discovered it was unsatisfactory because
when it shook the bushes so berries would fall onto the ground, it also jarred
loose green berries. A further problem arose because the land was uneven and
the machine required a lot of adjusting. In the process of attempting to use
the mechanical picker, plants were damaged and the family held a discussion and
decided to return the machine which had been operated by the prospective vendor
in the course of a demonstration carried out as part of his sales pitch. During
that time, Harby Rai and others visited Gill Farms – on August 12,
1999 – and Hakam recalled speaking with Rai and pointing to the picking machine
in the field and commenting that he was looking for pickers. After the machine
picked two rows of berries, Hakam decided that system was not working and
discontinued the experiment. He recalled Rai asking why only one-half of the
nets were up and stated a section of net had been taken down in order to allow
the tractor and picking machine to pass over the berries. After returning to
picking by humans, that portion of net had to be re-installed because the birds
were eating the berries. During the previous year – 1998 – Gill Farms had
difficulty finding pickers and members of the family often asked other farmers
in the area to let them know if any workers would be available once work ended,
usually after raspberry season. Hakam stated he shared a ride to work – at the
mill – with 3 people and asked them if they knew of people who would be
willing to pick berries. A son‑in‑law of Himmat Singh Makkar and
Santosh Kaur Makkar worked at the mill and it was through this contact that
those appellants came to work for Gill Farms. Hakam stated he also made it
known around Abbotsford that Gill Farms needed pickers. In his opinion,
hand-picked berries are better because machine-picked berries cannot be sold on
the fresh market where the price is about 15 cents per pound more than for
product sold to the canneries for processing as a second-grade berry. Although
the machine is faster than a crew of humans, the quality of the harvest is
lower and prior to delivery to the cannery, green berries and debris are removed.
Gill Farms delivered 30-pound lugs to Greenfield Farms for resale to
retail food stores. Berries were cleaned by using a system using a conveyor
belt powered by an electric motor that had been purchased in 1997. Because Greenfield wanted Grade A berries, Gill Farms preferred to
have two days notice to prepare a special order for delivery since the
ordinary practice was to clean berries only during the course of emptying
buckets into the lugs or flats if they were being sold to canneries or directly
to customers who visited the farm. Hakam dealt with the canneries but it was
the responsibility of Rajinder to respond to telephone calls from Greenfield and others and to provide instructions to workers so
those orders could be filled. Hakam was referred to Exhibit R-1 – tab 34 – and
to sheets of photocopied receipts for sales of berries to vendors that also
required berries that were cleaned by workers using the conveyor belt. He was
aware these receipts had been provided pursuant to an undertaking arising from
Discovery and added that some receipts for these sorts of sales may have been
misplaced or lost in the interim. People attending at the farm to buy berries –
for cash – went to the garage and a scale would be taken there for the purpose
of the transaction. At one point, Gill Farms had two scales because when the
original one quit working, a replacement was purchased and when the first one
was repaired, it was also used in order to reduce the distance that berries had
to be carried from the point of picking in order to be weighed. In 1998,
because Gill Farms had not yet acquired a forklift, all berries were taken
inside the garage until they could be hauled to a cannery. Berries in flats, on
pallets and/or in large containers were loaded – manually – onto the pickup and
transported to a cannery once each day. Hakam stated Gill Farms – in
1998 – paid $8 per hour to the hourly workers while pieceworkers received 30 cents
per pound. Gill Farms paid by cheque, but not every two weeks,
because the business had cash flow problems and often had to wait until payment
was received from one or more canneries. Sometimes, he used money from the
employment at the mill to pay workers. The cheques were prepared by Harmit but
had to be signed by both Hakam and Rajinder. Deductions were taken in
accordance with advice received from an employee of their accountant who would
be informed of the number of hours worked by a certain employee. The
accountant’s office also prepared the ROEs and T4 slips, as required. Hakam
identified the payroll record – Exhibit R-8, tab 23 – as a document
prepared by his wife – Harmit – and routinely provided to the accountant.
Within the same exhibit – tab 17 – he identified his signature on an ROE
issued to Manjit K. Gill and stated his practice was to have Harmit
or one of his older children explain the contents of said ROE to him prior to
signing. He assumed the information contained therein – as completed by
the accountant’s employee – was correct. He recalled attending a meeting at the
HRDC office in Langley on May 20, 1999, at which 4 members
of his family and their accountant were present together with 4 government
officials, another accountant and Nav Chohan, who acted as Punjabi
interpreter. He understood the purpose of that meeting was to discuss certain
discrepancies and to provide explanations in respect of particular issues that
caused some concern to officials at HRDC. Hakam Singh Gill
stated he noticed a tape recorder on the table – at the meeting – and that it
remained throughout the lengthy discussions. When requested, he gave answers
and explanations that he considered were correct. In his 1995 income tax
return – Exhibit R-2, tab 48 – Hakam reported employment
income in excess of $40,000 and according to the statement of Farming
Income & Expenses – p. 803 ‑ all farm income came from
blueberry sales in the sum of $35,701.98 but salaries were $52,806.15, and
total expenses were $69,736.05. Hakam stated there is a settling-up meeting
with workers when they are laid off and sometimes he is in the family home when
his wife – Harmit – is discussing matters such as hours worked and previous
wage payments with a worker in the course of handing over the final cheque. He
stated that no worker for Gill Farms has ever paid back any part of wages to
any member of the Gill Family. With respect to cash sales, Hakam was of the
opinion a certain book had been lost in which other sales had been recorded. On
occasion, his sons – Gurdeep and Baljit – may have sold small amounts of
berries and if cash was received instead of a cheque, may have retained those
proceeds for their own use. During the meeting at the HRDC office at Langley on
May 20, 1999, the notes ‑ Exhibit R-1, tab 24, p. 247
– taken by Turgeon indicate Hakam advised HRDC that Gill Farms had roadside
berry sales of about $2,000 annually and that 4,000 pounds of berries were
sold to Hamilton Farms in 1998 and that these sales were included in the
financial statement for the farm business. With respect to roadside sales,
Hakam estimated the average price was $1.30 per pound in 1998. During the
meeting, someone from HRDC asked how Gill Farms could survive year to year when
accumulated operating losses appeared to exceed $150,000 and Turgeon recorded a
response – by Harmit – that the Gill family had borrowed a total of
$30,000 – from 3 different people – in 1998. Hakam was referred to
his income tax return – Exhibit R-2, tab 50 – for the 1998 taxation
year in which he reported employment income of nearly $48,000 and claimed –
against other income – his 50% share of a total farm loss – in the sum of
$44,170.23 – which resulted when the farming operation produced only $85,712
revenue but incurred total expenses in the sum of $129,882.23, including
$89,348 in salaries/wages. The Minister allowed full farm losses, as claimed,
for both Hakam and Rajinder but prior to 1998, each partner seemed to have been
allowed only restricted farm losses in accordance with the relevant provision
of the Income Tax Act. In 1997, according to Hakam’s tax return –
Exhibit R-2, tab 49, beginning at p. 825 – his employment income was
$47,608 but gross farm revenue was only $45,656, including the sum of $43,500
from the sale of berries. In 1998, Rajinder’s income was only $8,399. Turning
to the matter of farming practices at Gill Farms in 1998, Hakam stated berries
were kept overnight on occasion and did not sustain any damage as a result of
storage for a short term. Picking continued during a slight rain and was only
halted if it was heavy and the weather forecasts often predicted clear and warm
weather later on in a day which allowed the berries to dry. If picking was
stopped during a rainfall, the workers performed other tasks such as washing
buckets. During the HRDC meeting, Turgeon noted – Exhibit R-1, tab 24, p. 243
– Hakam’s responses that only one day of picking had been lost to rain in 1998
because it was very hot that year. Hakam agreed that answer was correct and
added that even though it may be raining at the farm, it can be dry 3 or 4
kilometres away and sometimes that phenomenon is reversed.
[74] Hakam Singh Gill was cross–examined by Amy
Francis. He confirmed that by 1998, he and his brother had owned the farm for
19 years and that as the farming business developed, it became necessary
to hire outsiders. About 1995, Harmit and Manjit began working on a full-time
basis during the season for the Gill brothers partnership. Harmit started
somewhat later because she was employed at a cannery. Hakam stated that to the
best of his recollection, 7 or 8 hourly workers were hired in 1996 and casual
pickers were hired, as needed. During the 1997 season, Gill Farms hired 8
or 9 hourly workers in addition to casual pickers and the number of hourly
workers was increased to 15 in 1998. Counsel pointed out the number of workers
had doubled in only two years. Hakam responded by pointing out berry sales had
doubled in the same period but the price paid by the canneries only increased
between 5 and 10 cents per pound. The crop varies from year to year and –
by way of example – 2004 was a bumper crop and the branches were so laden with
berries they nearly broke. Hakam stated he preferred to have steady workers and
to ensure a constant labour supply, Gill Farms paid an hourly wage. Those
workers paid by piece rate were those who only worked occasionally, usually in
conjunction with one or more other jobs elsewhere. Hakam stated pieceworkers
only pick berries and do not perform other tasks and that was another reason
Gill Farms wanted to have a core group of workers who were paid on an
hourly basis. Counsel suggested the norm within the berry industry is to pay
workers by piece rate and that farmers would lose money paying pickers an
hourly rate except – perhaps – during two weeks in peak season. Hakam did not
agree. Gill Farms grew 3 types of blueberries and, as a result, the effect
of high or peak season was not as significant as at other farms. He considered
the maximum rate of $8 per hour was fair and that the wage – $9 per hour – paid
to Harmit and Manjit was reasonable in view of their additional duties and
responsibilities. During an interview with prospective workers, he established
the appropriate hourly wage based on an assessment as to probable ability based
on past work experience and from observations in the course of discussions. Himmat
Singh Makkar was paid $8 per hour because he appeared healthy and had worked on
a farm previously. Surinder Kaur Gill – a worker with considerable experience –
was paid $7.50 per hour. Hakam stated the difference was based on the simple
fact Himmat Singh Makkar was a man and Surinder Kaur Gill was a
woman. Gurdev Singh Gill who had previous picking experience was paid
only $7.50 per hour because he did not appear – to Hakam – as strong as Makkar. Hakam
stated the amount paid to a worker could increase if
additional labour was needed during a particular period. Counsel
referred Hakam to a letter – Exhibit R-1, tab 20 –
dated September 30, 1999, sent to Revenue Canada – by Lucky Gill
of LRS Solutions – on behalf of Gill Farms. At p. 109 within said tab, in response
to a question concerning the method of determining the rate of pay for a
worker, Lucky Gill wrote "[R]ate of pay was determined based on
minimum wage of employment standard rate and employees with a little more
responsibility received pay according to the level of responsibility as well as
industry standard rates. In addition, employees who produced at a faster rate
were paid a higher amount to ensure they were compensated for their speed".
Counsel read aloud certain questions put to Hakam – at Discovery – which called
for an explanation as to why workers doing the same job were paid at different
rates, according to the payroll records of Gill Farms. Hakam replied that
he recalled attending said Discovery and had attempted to provide truthful answers.
Counsel referred him to another response wherein he had confirmed that a
person with more work experience would receive a higher rate of pay. Counsel
asked him which factor was determinative, speed, experience or his
subjective assessment formed during an interview. Hakam
responded that – for example – when hiring Himmat Singh Makkar, that
individual had made a strong impression because he was educated, had farming
experience, appeared to be strong and had applied for work during a busy part
of the season. Hakam agreed Gill Farms paid several workers holiday pay of 7.6%
while others received 4%. He stated these payment differentials were based on
advice received from the accountant. Counsel pointed out the higher rate was
paid to Manjit and Harmit and to Gurdev Singh Gill, Surinder Kaur Gill and
Surinder K. Gill and these last three had worked less than some others so the
difference did not seem to make sense. Counsel asked Hakam if he had ever
agreed to employ a worker for a specific period. Hakam stated he informed
prospective employees that Gill Farms wanted workers to stay throughout the
season but did not guarantee anyone a specific period of employment. Counsel
asked Hakam to explain why Himmat Singh Makkar – one of the highest
paid workers – was laid off before several others. He stated Makkar turned out
to be a slow worker and when the work slowed down, he was laid off. Hakam
stated Gill Farms only employed people as long as there was work for them
to perform and some workers had been hired as late as August. In his view, Gill Farms
had two main categories of work; one involved only picking berries and the
other type encompassed tasks from preparing for the forthcoming growing season
to finishing up the season. Hakam agreed his intention – when hiring most of
the hourly workers – was to convey the message that Gill Farms did
not want workers leaving in the middle of the season and even though the length
of the season varies to some extent, he wanted to assure employees they would
be retained as long as there was work for them to perform, including those
tasks undertaken at the end of the season. Hakam agreed that Himmat Singh
Makkar had been laid off before the end of the season. Counsel referred Hakam
to a letter – Exhibit R-1, tab 5 – dated November 10, 2000,
sent by Ronnie Gill to Bernie Keays at Revenue Canada, consisting of a
transcript of a discussion – in interview format – between Gill and Hakam
concerning employment of workers by Gill Farms. Hakam identified his signature –
p. 27 – under the handwritten words "Approved & Okayed". He
was directed to an answer on p. 25 pertaining to hiring practices in which
he said "[T]he people come and ask if we have work. They tell us that they
will only work if we can employ them for the whole entire season. These are
usually the older fellows. The younger ones we make sure that they will work
the entire season. We fear that they will quit halfway through to work at a
nursery, greenhouse or a labour contractor who can offer them a longer season
of employment". In responding to the next question – p. 26 –
inquiring whether workers would be laid off right away if there was less work,
Hakam stated "[If] I did that and did not fulfill our agreement, I would
have no workers for the next season and so on. So all my hard work over the
years will be worthless". Then, in the context of the period when the
berries were almost finished, he was asked – during that interview –
by Ronnie Gill "[W]hy don’t you send them home because there is not enough
work for everyone?" Hakam proceeded to explain that during the peak season
Gill Farms is "struggling to get people to come and pick berry for us.
Nobody likes to pick by the pound when there is less berry. We hire casual
employees during peak season. The rest of the employees work until the end. We
can’t tell half that they can’t come to work. If we did that then we would have
no workers the next season". In answer to the next question from Gill,
Hakam confirmed that a worker’s period of employment was based on the length of
the season but added there was no guarantee of hours because if the season is
shorter or longer “we don’t want to be stuck paying people…". He described
a custom within the farming community whereby another farmer may phone
Gill Farms to inquire if workers are needed because he has workers that want to
work for the season and they want to receive that assurance. Hakam explained –
p. 26, last paragraph – that if he agreed to employ workers for the rest
of the season, that farmer would send over some workers as otherwise, the
farmer would proceed to phone another farmer until that objective could be
attained. Hakam concluded by saying "[T]his is a very tight knit
community. Every farmer knows the rules when they hire a seasonal labourer".
Counsel asked him what he meant by that statement. He replied that people know
they will have work during the season and a fellow farmer does not want to send
over his former workers if they will only be employed for a few days and then
sent home. However, that promise does not extend to paying people if there is
no longer any work to be done. Counsel referred Hakam to a note – Exhibit R-1,
tab 6, p. 29 – made by Bernie Keays in the course of an
interview with Ronnie Gill on November 2, 2000, in
which she said that workers know at the start of the season they
can work until the end and – therefore – do not have
to look elsewhere. On the next page, Keays noted he asked Ronnie Gill "[W]hat
if there is no work?", and her response "[J]ust sit there and do
nothing, if nothing to do but you already made a commitment". Keays noted
a further comment by Ronnie Gill as follows: "If you have them on
your property you have to pay them even if nothing done. It’s the farmers’ way
of thinking’ not a business". Hakam stated he agreed that workers paid by
the hour still must be paid even if work is halted by rain but they
were given other tasks – such as washing buckets – to do during these periods.
He agreed that there are occasions when a prospective employee informs him of
the amount of employment required in order to qualify for UI benefits and
before starting work for Gill Farms, wants to be assured he or she will
not be laid off or fired. Hakam explained that in these instances, he agrees to
employ a worker for a certain period but always with the understanding that
there must be work that needs to be done. However, in return for that
commitment, he wanted workers to know that Gill Farms expected them to continue
to work until the end of the season even if they already had accumulated enough
insurable hours to qualify for UI benefits. He pointed out his main
concern was to operate Gill Farms in a businesslike manner and
responding to the needs of workers to acquire sufficient
insurable hours to qualify for UI benefits was secondary.
Turning to the matter of transporting workers, Hakam recalled that it was
Manjit who did most of the driving, although Rajinder – on occasion – also
drove them. Counsel referred Hakam to an answer – Exhibit R-1, tab 20, p. 111 ‑ provided
by Lucky Gill of LRS to question # 13 of the Questionnaire in
which Rajinder had been named as the person who picked up the employees "most
of the time". Hakam explained that he left home at 6:00 a.m. to go to
work at the mill and was aware Manjit used to pick up workers and/or take them
home. As a result, he assumed she did the majority of the driving. He
instructed both Harmit and Manjit to record their time and the partnership
would pay them for each hour worked including the time spent transporting
workers. Hakam described a routine whereby after returning home from the mill
at around 4:15 p.m., he went into the house, washed, had something to eat,
spent a few minutes talking to his mother and rested for a few minutes. Then,
between 5:00 and 5:15 p.m., he went into the field, at which point
most workers were close to finishing for the day and some had already been
taken home. On occasion, some workers stayed later to clean berries in order to
fill an order for fresh berries. In the event Manjit was also involved in that
task, then some other family member would substitute for her and drive workers
home. Sometimes, the truck was loaded with berries to be taken to the cannery –
which stayed open until midnight – but if a trip was made early in the evening,
then some workers were taken home at the same time. Hakam stated that to the
best of his recollection, workers started around 7:30 a.m. and finished
around 5:30 p.m., although some may have worked as many as 10 hours a
day during peak season. On weekends or other days off from the mill, he tended
to remain in bed somewhat longer than usual and relied on Harmit and
Manjit to ensure work was proceeding. He stated that – overall – most workdays
would have been around 8 hours. Counsel advised him the payroll records of
Gill Farms were consistent without revealing much variation throughout the
season. He replied that the weather – particularly during hot days – plays
a part and there may be some rest periods taken during the day as a result. He
added that he relied on Harmit to record correctly the hours worked by Gill
Farms employees. Counsel directed Hakam’s attention to answers – Exhibit
R-1, tab 20, pp. 109-110 – provided by LRS – on behalf of Gill Farms
– to Revenue Canada in which several factors were listed as having an effect on
the hours worked by employees, namely, the nature of the task, amount of
berries on the bushes, amount of work required for their job description,
climactic conditions, number of hours already worked for the week and number of
hours of daylight. On p. 110, the answer explained the normal hours of
work were from 6:30 a.m. to 8:30 p.m. during the seasonal
employment but that the employees – usually – worked from
9:00 a.m. to 8:00 p.m. and that Manjit decided which workers were
required to stay longer in order to fill an order for fresh berries. Hakam
agreed that those answers had been provided by LRS on September 30, 1999,
only a year after the season at issue in the within proceedings and that those
answers should have been based on a better recollection of events than that those
given 7 years later. However, he did not agree that workers usually started
work as late as 9:00 a.m. since he had understood their start time was
earlier each morning, weather permitting. He agreed that he gave instructions
to Manjit to phone certain workers from time to time concerning certain matters
such as pick-up time or as a courtesy to wake someone up, if they had requested
such a call be made. In the event a heavy dew was anticipated during the night,
Manjit called workers to advise of a late start the following day. Counsel
referred Hakam to the answer – p. 110 – explaining that he
oversaw the implementation of supervision of employees only to the point where
he advised Manjit about certain matters including which employees to call, the
variety of blueberry to be picked, whether orders had to be filled and the
number of pounds required, and the condition of the field with respect to the
ripeness of the berries. Counsel asked Hakam why he would be involved in
determining which workers to call unless Gill Farms had a system whereby
some workers did not have to work every day. He replied that the hourly workers
worked steadily but the pieceworkers would be phoned and told whether there was
work for them or not, depending on the amount of berries to be picked. Because
some pieceworkers only worked a few days or possibly only a portion of a day
during which they earned only $20 or so, any picking cards relating to these
individuals were not retained once payment had been made to that picker. With
respect to the task of pruning in 1998, Hakam stated it was done during the
winter but some dry or broken branches would be removed later by employees.
The winter – or heavy – pruning is performed by Hakam and is regarded
as an onerous task, second only to harvesting in terms of the time required.
Usually, he starts pruning between Christmas and the New Year and works at
it – mainly – on weekends until it is completed. The light pruning or trimming
that is performed at the end of the season by workers takes about one week to
finish. Counsel referred Hakam to notes – Exhibit R-1, tab 24, p. 237
– taken by Turgeon during the meeting between members of his family and several
HRDC employees and consultants held at the Langley
office on May 20, 1999. According to those notes, Hakam had described
pruning from the beginning of September until around mid‑October and had
stated, "I work in the mill and off Sat & Sun so that’s when I did the
pruning". According to Turgeon’s notes, when asked who was pruning with
him, he responded by naming Mr. and Mrs. Sidhu as well as
Himmat Singh Makkar, Mrs. Grewal, Manjit Sidhu and Khatra.
Counsel pointed out that Makkar had been laid off on August 29, 1998.
Hakam Singh Gill agreed that was correct but had recalled during a
break in proceedings before the Court that Makkar had been present earlier in
the season when he had demonstrated pruning techniques to a group of workers
and must have confused that event with the actual pruning work carried out at
the end of the season. Hakam stated he should have made it clear that he
performed – personally – the heavy pruning during weekends when not working at
the mill. He requested confirmation of comments made during that HRDC meeting
by listening to the tapes of proceedings which he assumed had been recorded.
Counsel advised the recording attempt was unsuccessful and there was no useful
tape produced during the meeting. Counsel informed Hakam that when answering Q. 497
during his Discovery – about pruning in 1998 – he said workers were hired for
that purpose and that it had been done twice that season, once before the net
was installed and again after it had been taken down. Hakam stated the heavy
pruning began in late December, 1997, and would have extended into the early
part of 1998. Hakam confirmed he was the person who always did the heavy
pruning during the dormant winter period and that the other lighter trimming is
performed when branches become dry or broken. Counsel suggested Gill Farms
wanted to make it look like there was a need for Gill Farms workers to
have worked a certain number of hours and wanted to make it look like some of
them had done extra work such as pruning. Hakam Singh Gill responded by
pointing out that regardless of what textbooks say about the tasks which should
be performed on a berry farm, he is the person who had done the work and knows
what is required during a full season. He was involved with the process of
spreading sawdust and saw workers putting this material around plants using
both wheelbarrows and buckets. The sawdust is light, weighing only 5-7 pounds
per bucket and can be spread by hand. Counsel advised Hakam that according to
Gill Farms picking records she had reviewed, there were some days when the
hourly workers – as a group – appeared to have picked almost no berries. He
stated the workers were expected to pick about 20 pounds per hour or
180-200 pounds per day and that their rate of production was monitored by
Manjit at her discretion. Counsel referred to the report – Exhibit
R-1, tab 23 – of James Blatchford – forensic accountant – in which he
examined numerous documents including slips issued by canneries in respect of
deliveries of berries from Gill Farms and picking cards issued by Gill Farms
to pieceworkers. By subtracting the amount of berries picked by pieceworkers,
counsel pointed out that the balance must have been
picked by the crew of hourly workers. She referred Hakam to the
entry – p. 212 of the report – for July 10, 1998, indicating 227 pounds
of berries had been delivered to the cannery but 237 pounds had been
picked by workers paid by the piece. On p. 209 of said report, pertaining
to July 24, 1998, the entry indicated a total of 1,025 pounds of berries
had been delivered and of that amount, pieceworkers had picked 410 pounds
and the group of hourly employees had picked 615 pounds, at an average of
77 pounds per worker within that category. Hakam stated it was reasonable
to assume some of the hourly workers may have been directed – by Manjit – to
perform other duties that day and also that one should take into account some
berries may have been picked one day and shipped the next. Counsel directed his
attention to an entry – p. 205 – for August 18, 1998 showing that the
hourly workers picked only 3 pounds of berries per hour that day for a total of
399 pounds while pieceworkers picked the balance to make up total
production of 684 pounds. Counsel also referred to entries for the
remainder of the week of August 18th wherein the average daily production
for each hourly worker ranged from a low of 48 pounds to a high of 95 pounds.
Hakam reiterated there may have been work performed by those workers during that
period apart from picking. He confirmed that all berry sales –
including those at the farm directly to customers – had been reported to
the farm accountant and had been included in revenue for purposes of preparing
a financial statement of the partnership which was included by himself and
Rajinder when filing their income tax returns. He added that he was not aware
of the extent of the recordkeeping to track sales from the fruit stand. Counsel
advised Hakam that the statement of revenue for 1998 indicated Gill Farms had
sales of $66,108.09 to canneries from the total revenue of $73,712. Hakam
confirmed that he assumed the shipping slips and other records provided by
Universal – Exhibit R-2, tab 35 – were correct as well as those
issued by Kahlon at the following tab. In 1998, sales by Gill Farms – to
Universal – were $11,552.40, representing the purchase of 16,100 pounds of
berries. Kahlon purchased 58,541.5 pounds from Gill Farms and paid a total
of $42,124.48. According to the cash sales slips – Exhibit R-1, tab 34 –
additional revenue in the sum of $4,205.21 was derived from that source.
Counsel pointed out the total of the 3 cheques issued by Kahlon – Exhibit
R-2, tab 36, p. 410 – is $42,124.48, the same amount as shown on the
earlier summary of the sales slips. A summary – tab 37 –
provided by Greenfield showed purchases of 9,650 pounds of
berries from Gill Farms for which it paid the total sum of $8,226. The
total of all sales in 1998 – as confirmed by the aforementioned
records – is $77,660.49. Counsel referred Hakam
to the statement – Exhibit R-2, tab 50, p. 835 – showing
total farm revenue of $73,712 in 1998. He confirmed that amount was correct
as was the sum of $89,438 – p. 840 – representing the
amount paid by Gill Farms for wages and the total amount of expenses in the sum
of $110,725. He confirmed the amounts reported for revenue and expense were
correct as reported for the taxation years 1995, 1996 and 1997 in the returns
located within Exhibit R-2 at tabs 48 and 49, respectively. In each of those
years, the amount paid for salaries/wages had exceeded total farm revenue
before taking into account the rest of operating expenses. Hakam stated
that when the partnership required money in order to operate, it was
advanced from the personal joint accounts he and his wife – Harmit –
operated at branches of Khalsa and Fraser Valley
credit unions. Pay cheques from his job at the mill were endorsed and deposited
into a joint account and Harmit also deposited proceeds from her pay cheques
into one or other joint account. Counsel referred him to two cheques – Exhibit
R-2, tab 41, p. 714 – in the sums of $400 and $2,520 dated October 31,
1998 and November 7, 1998, respectively, written on the joint account at Khalsa
that were deposited into the Gill Farms credit union account at Fraser Valley.
Hakam was directed to a cheque ‑ p. 585 – dated October 26,
1998 – in the sum of $4,407.78 – written on the Gill Farms operating
account at Fraser Valley and payable to Harmit Kaur Gill. The cheque was
deposited to the credit of the joint account at Khalsa on
November 19, 1998. Counsel suggested to Hakam that it seemed as
though it was a regular practice to use funds in that manner and if the farm
needed money the partnership would borrow from Harmit and her wages would be
paid later. Hakam stated Gill Farms had a $20,000 line of credit at Khalsa and
if the business needed money, funds could be withdrawn from the personal joint
account(s). Counsel referred Hakam to Exhibit R-1, tab 19, a letter –
dated September 30, 1999 – sent by Lucky Gill of LRS Solutions to Harby Rai at
Revenue Canada in which an explanation was provided
therein for the nature of certain tasks undertaken and the time needed to
perform them. Hakam identified his signature on said letter. He confirmed the
information in paragraphs 1, 2 and 3 was correct in which certain employees had
begun putting up the nets on or about June 16 and finished about June 30.
Apart from Harmit Kaur Gill and Manjit Kaur Gill, the other employees
named were Sukhminder Kaur Gill, Jarnail Kaur Sidhu, Pawandeep Kaur Gill
and Manjit Kaur Sidhu. Counsel advised Hakam the Minister relied on
the advice of an expert that the time needed to install nets at Gill Farms was
double the amount according to standards within the industry which allow 36 hours
per acre to install, remove and repair nets each season on a typical berry
farm. In keeping with that formula, the total time required to handle
the nets should have been 306 person-hours for the 8.5 acre Gill Farms.
Hakam responded by pointing out that larger farms are more efficient because
they have newer equipment such as wires with handles and wheeled carts to move
along the rows so workers do not have to carry stepladders from place to place,
and climb them to attach the wires and install the sections of net. Counsel
pointed out the averages within the industry include small farms and that Gill
Farms apparently took 5 times longer than normal – in 1998 – to manage the
matter of installing, removing and repairing nets. Hakam responded that whether
or not the books and experts indicate that may be the case, it took that amount
of time to do the necessary work and Gill Farms accepted the fact it took
their workers longer to accomplish the task because most were inexperienced and
he did not want to put undue pressure on people, particularly in face of the
ongoing difficulty to recruit farm workers. According to answer # 6 in the
letter from LRS, the spraying and fertilizing took place between May 17 and May
24 and Hakam had been assisted by Sukhminder Kaur Gill and Manjit Kaur Sidhu.
Counsel informed Hakam that – at Discovery – he had stated that he was the sole
driver of the tractor and Rajinder had helped to fill the water tank. Hakam
stated his best recollection was that he was also assisted by another worker in
some aspect of the spraying and fertilizing operation but neglected to include
that information in his answer at Discovery. The fertilizer was in the form of
pellets and was spread – by hand – from a 25-pound bag over an area extending
1.5 feet to 2 feet in diameter around the roots of each plant, of which there
were approximately 16,000 in 1998. This work was done by Sukhminder Kaur Gill
and Manjit Kaur Sidhu. As enumerated in answer # 10 of the LRS letter, a
total of 9 employees worked between 6 and 8 days – after the nets were
taken down – of which the task of washing buckets occupied one day. Counsel
advised Hakam the Minister relied on information and advice from an expert that
this amount of time was in excess of the norm within the industry. Hakam
replied that the tasks occupied that amount of time, as stated in said letter.
The berries were transported – usually – to canneries in lugs and while
canneries supply these containers to growers, Gill Farms had purchased a supply
of lugs during a sale by a bankrupt berry cooperative and as a result the lugs
owned by Gill Farms were interchangeable with those supplied by the canneries.
In that sense, Gill Farms would receive a clean lug after a delivery. Universal
preferred to receive berries in flats while Kahlon wanted the product to be
delivered in lugs. All the buckets were owned by Gill Farms and there were
different sizes, shapes and capacities, some of which held up to 30 pounds of
berries. Hakam stated that while most farmers may permit the cannery to do all
the cleaning of berries, Gill Farms policy was to clean debris – such as
dirt or leaves – from berries and to sort out green and/or overripe
berries so as to obtain a good price for a high-quality berry and to maintain a
good reputation with the canneries as a supplier of excellent berries. The
berries delivered to Kahlon and/or Universal were not cleaned by using the
conveyor belt system as that was undertaken only for sales to Greenfield.
Berries transported to Kelowna as well as those sold to stores locally
and/or directly to customers from the Gill Farms fruit stand were also cleaned
on the conveyor belt. With respect to the matter of issuing picking cards,
Hakam stated it was a decision made in the course of business whether a worker
received a card so the amount of production could be monitored. He used his own
discretion to decide whether certain workers would be handed a picking card and
on which days during the season and Harmit was instructed accordingly. Once the
information on the cards was reviewed, the cards were no longer needed and were
discarded either later in the season or at the end. He regarded the use of the
picking cards as an excellent way to determine average production of the
workers and to motivate them to pick more berries. He stated he did not recall
the specifics of any instructions given to Harmit about issuing picking cards
to workers. Since he was not on the farm during the day while working at the
mill, he was not aware of the weighing practices but Harmit was requested to
weigh all berries picked. He added Gill Farms were content to rely on weights
of berries delivered as recorded by the canneries since they used high-quality,
reliable scales and the exact amount of each shipment was known immediately
after delivery. He stated Harmit also recorded weight of berries on a separate
piece of paper, mainly for her own use. At Discovery, Hakam testified that
berries picked by pieceworkers were weighed but those picked by hourly workers
were not except if required to fill a specific order for a customer. Hakam
stated he now considers his answer – at Discovery – to have been incorrect,
although that was his impression at the time. As stated earlier, Hakam
reiterated the use of picking cards by hourly workers was to monitor production
from time to time as and if required and berries would be weighed for that
purpose. In 1998, a former residence on the property was rented for $1,000 per
month and this revenue was included in the financial statement of the
partnership as farm income. Because he was responsible for 50% of the expenses
of the farming business, funds from wages earned at the mill were injected into
the enterprise, as required. The credit union account at Fraser Valley – in the
joint names of Hakam Singh Gill and Rajinder Singh Gill – was
used – primarily – for the partnership business except that payments by
canneries to Gill Farms were deposited into an account at Khalsa and as shown
on the statements – Exhibit R-2, tab 41, beginning at p. 606 – money was
subsequently transferred to the Fraser Valley account. Hakam stated Rajinder
and Harmit were responsible for all banking transactions and the Fraser Valley account was used to pay workers. Cheques
on that account were signed by him and Rajinder as both signatures were
required. He conceded he may have requested a worker to delay cashing a final
pay cheque until Gill Farms had been paid by one or more canneries because
those payments often did not arrive until late October or early November.
However, he was emphatic in denying the suggestion by counsel that – personally
or through a family member – any worker had to pay money to
him or any member of his family as a condition of receiving payment for work
done during the season. He posed the rhetorical question "how do I do
that; those people worked".
[75] Hakam Singh Gill was re-examined by his
agent, Ronnie Gill. She directed his attention to an answer given by him – at
Discovery – to Q. 399 et seq. where he explained that Harmit was
instructed to do the weighing on a daily basis but if she needed help she could
ask Manjit or other workers. In response to the question "so, hourly
workers’ berries were never weighed", he stated "it’s possible the
berries of hourly workers may have been weighed as well.” In response to Q. 406
"so did you give instructions to weigh berries of hourly workers", he
explained he left instructions that a certain worker should be issued a picking
card and the berries picked by that person should be weighed. He confirmed that
business details such as paying a certain rate of vacation pay and related
matters concerning payroll were left to Rajinder, Harmit and the accountant. He
stated Himmat Singh Makkar was laid off because he had not performed
at the level expected of him as a result of an impressive hiring interview.
Hakam stated he attempted to adhere to an informal policy at Gill Farms whereby
layoffs were related to seniority during the 1998 season. Hakam was
referred to Exhibit R-2, tab 36, p. 408, consisting of records provided by
Kahlon with respect to berries purchased from Gill Farms. On said page,
there are 5 different prices set forth, ranging from 30 cents per pound
for juice berries to 80 cents a pound for fresh berries. Grade A berries were
purchased at either 60 cents a pound or 75 cents depending on the period during
the season they were delivered. Grade B berries were sold for 65 cents a
pound during the season. Hakam stated the price per pound fluctuates according
to the market and the price – particularly for Grade A berries – is affected by
importation of berries from the United
States of America. Hakam
stated that currently the irrigation system at Gill Farms is efficient and only
one-half day is required to get it functioning. In 1998, it took 3 days because
the water from a ditch was not clean and affected the pump which had sucked up
particles of dirt and plugged the pipes and drippers. He had discovered cracked
pipes due to the cold winter and some joints required tightening. He was
referred to a photograph – Exhibit A-10 – of a dripper and explained the
old-style dripper did not have threads to screw into the hose so if one was
damaged it had to be removed by hand in order to be cleaned because when the
system was activated, dirty water was expelled but it also caused some drippers
to become plugged. When that happened, it was necessary to "fiddle"
with them so water would flow and some had to be cleaned with a wire or
replaced which was not convenient in 1998 because one had to poke a new hole in
the hose and insert a new dripper. Hakam stated it is preferable to have the
best equipment available but that has to be counterbalanced by the ongoing need
to watch expenses, particularly in 1998 when there were some problems with
cash flow. Whereas at the mill, a new machine can do the work previously
performed by 50 humans, the farming business as carried out by the partnership
remained labour intensive and there were no viable machines to reduce that
requirement. Hakam stated Gill Farms currently is seeking ways to reduce labour
costs because once made, that expenditure does not produce any enduring asset
as is the case when machinery and equipment is purchased. At the mill, he is
Head Sawyer and operates a machine which permits him to discover methods to
improve production. However, on the farm, there is little opportunity to use
that level of technology to improve yields or lower costs. If the poles holding
the nets became loose, they had to be tightened by adding gravel to the holes.
This task and many others occupied the time of workers in order to install the
nets. There was no system to raise the nets as one would use to hoist the sails
on a boat. Instead, it required 3 or 4 people to hold each section of net
so to avoid damaging the plants. In 2005, at the start of the season, Gill
Farms sold berries for $1.50 per pound and when production increased within the
industry that price dropped to $1.15 but rebounded to $1.35. He anticipated it
would increase by another 20 cents per pound before the end of the season.
These prices – compared to those obtained in 1998 – represented a significant
increase in revenue. In 1998, Gill Farms sold fresh berries to some customers
for $1.35 per pound but the canneries were paying only 80 cents for that
same quality. He explained that price difference was sufficient to make it
economical for Gill Farms to use the conveyor belt for cleaning berries prior
to delivery to a customer. While the cost of that task had not been calculated
specifically, he estimated it was less than 5 cents per pound. Gill Farms
delivered berries to 6 or 7 different stores located in North Vancouver, Vancouver, Surrey, Burnaby and
neighbouring municipalities. A truck was used which carried between 1,200 and 1,500
pounds of berries per trip. Rajinder’s son delivered a mid-week order to a
customer. Hakam thought he had made some deliveries during the weekend during
his time off from the mill. Most customers paid cash and the money was turned
over to Harmit or Rajinder. He does not know what record was made or what use
was made of it subsequently. With respect to the issue of production, Hakam
agreed that some workers at other farms could pick up to 400 pounds per
day during peak season because berries ripened in bunches. The problem at Gill Farms
was that there were 3 types of berries in the process of ripening in an
overlapping period and there were green berries remaining after a picking was
completed. During the meeting at HRDC on May 20, 1999, Turgeon recorded a
response – Exhibit R-1, tab 24, p. 251 – that Hakam – in 1998 – had been laid
off from his job at the mill and his income that year was composed of severance
pay in the sum of $13,000 together with $12,388 in UI benefits. Hakam stated
that information is incorrect since it was Rajinder who had been laid off,
albeit in 1997 and not 1998. In 1998, Hakam worked full time at the mill.
Concerning the visit to the farm – August 12, 1999 – by Rai and Turgeon, he
recalls meeting Turgeon and Rai who indicated they wished to speak to Manjit.
He took them to the field where they spoke to her. He explained the reason the
net was not up because they were trying to use the picking machine. He stated
Harmit – not Manjit – was making tea and that the notes – Exhibit R-5, tab 4 –
are wrong in that aspect as well as in noting that he was informed he could not
collect UI benefits because he was working on the farm full time. He stated he
had not been laid off from the mill so they must have intended to refer to
Rajinder’s claim. He identified two cheques on a sheet ‑ Exhibit R-2,
tab 41, p. 620 – one in the sum of $1,175 and the other for $2,000, written on
the joint account of Hakam and Harmit at Khalsa, and payable to the account at
Fraser Valley used by Gill Farms to operate the business. On March 4, 1998,
a cheque – p. 690 – in the sum of $2,000 was written on the joint Khalsa
account, payable to the Fraser
Valley account. It was signed
by Harmit and even when she was not employed by Gill Farms, she wrote out
cheques on the farm account so they could be signed by Hakam and Rajinder. He
stated that to carry out the spraying, he drove the tractor and two workers
walked behind carrying spray guns or nozzles which are attached – by a hose –
to an outlet in the tank. If the nozzle is not depressed, the flow of spray is
stopped. When spraying the grass in mid-season, one must be careful not to
touch the plants with the substance. He agreed that in replying to the Questionnaire
– Exhibit R-1, tab 19 – the information provided therein on September 30, 1999,
did not include any mention of planting new plants nor spraying in the middle
of the season.
[76] Rajinder Singh Gill (Rajinder) testified in
English on the understanding Russell Gill – interpreter – could interpret,
if necessary. Rajinder was born in India in 1950 and
completed Grade 4 before coming to Canada in 1964. He
started working in 1995 and in 1966 was employed in a lumber mill. He was
referred to the cash sales receipts in Exhibit R-1, tab 34. The first one – p.
379 – pertains to the sale of berries to Paynters in Kelowna.
Additional sales, as evidenced by receipts to Little Acres and Granny’s Fruit Stand,
were also made to customers in the Kelowna area. Rajinder
estimated Gill Farms made between 6 and 8 trips to Kelowna
– in 1998 – to sell berries. The berries were carried in a truck box ‑ covered
with a canopy – which held up to 55 lugs, each containing 40 pounds.
Ronnie Gill directed Rajinder’s attention to a chart – Exhibit A-17 – she had
prepared with respect to cash sales to the Kelowna/Okanagan area, according to
the receipts. Rajinder noted that sales on July 27, 1998 were 253 pounds and
stated he would not have gone to Kelowna to sell only that small amount. In the
event buyers did not want a receipt, none was prepared. However, the money
received was placed into a bag and returned to the farm and Kulwant – his
nephew – was always with him and observed the cash transactions. He stated the
money was counted with Hakam and divided equally and that those sales were
reported to the farm accountant. Rajinder stated he had worked at the InterFor
mill since 1986 but had been laid off in 1997. At tax preparation time, he
informed the accountant of an amount to be included in revenue that was
attributable to sales in the Kelowna area and also from the fruit stand on the
farm. Hamilton Farms – a customer since 1994 – paid cash
for berries at cannery rates for cleaned berries. Although the rate was the
same, Hamilton paid immediately and the canneries issued
a cheque in late July – as an advance – and paid in full only after the season
was finished. Rajinder recalled one season when one cannery did not
pay the balance due until February of the following year. During the berry
season which lasts about 10 weeks, between 12 and 15 deliveries were
made to customers in the Greater Vancouver area at an average of 1,200 pounds
per trip. A customer may have ordered 300 pounds but decided to accept only 150
pounds if sales had been slow. In the event some berries were left over during
the course of making rounds to various customers, they were taken to the
cannery. Rajinder stated that he borrowed $10,000 from a friend ‑ Brar –
in 1998 with whom he had worked in Prince George in the
70’s. He borrowed money from another friend and from his son who was 26 in 1998
and from his daughter who was 25 at that time. His son worked as a machinist in
an airplane factory and his daughter was also employed there. After 31 years of
working in a mill, he was laid off but later found a job which lasted for two
years until that mill closed down in 2002. Rajinder stated he has suffered from
asthma since 1975 and made it clear to Hakam that he could not perform physical
farm work. Hakam accepted the situation and promised he and Harmit would do all
the work. Rajinder stated that as a 50% partner in Gill Farms throughout,
he was involved in financial matters and now and then – in 1998 – gave rides to
some employees either in the morning or at night but only as a last resort if
other members of the family were busy. He helped out in other ways from time to
time as long as it did not involve physical activity. The attempts to grow
strawberries did not produce satisfactory results which led to the decision –
in 1984 – to grow only blueberries. He and Hakam were both working at the mill
and invested part of their wages into the farming business. Rajinder stated he
was not pleased with ongoing farm losses but wanted their families to stay
together and – in any event – both of them needed a place to live. The decision
to stick it out has proved worthwhile since the price of berries has increased
as well as the volume of annual harvests and the farm has shown a profit in
recent years. As a result, farm land in the area has increased in value.
Rajinder was referred to a December, 1998 statement from Fraser Valley – Exhibit R-2, tab 41, p. 584 –
indicating a deposit of $13,000 on November 19, 1998. He stated he could
not recall the source of that sum. Harmit handled most financial matters,
including settling up with workers and preparation of cheques for signature by
him and Hakam. He recalled the visit to the farm by Turgeon and Emery and was
present during discussions with Harmit and Manjit. However, he left to answer
the telephone and when he returned, Baljit was in the room and it seemed as
though she was angry. He did not recall answering any of the questions posed by
either Turgeon or Emery except he remembered explaining the farm had 8 acres
in blueberries, as noted by Emery in Exhibit R-8, tab 14, p. 66. He had
applied for UI benefits early in 1998 which he received until the farm
started to sell berries. At the May 20, 1999 meeting at the HRDC
office, he recalled speaking about roadside sales and the amount of berries
sold to Hamilton Farms and other customers. With respect to loans to the
partnership from either friends, his children or Harmit, he stated all funds
went into the farm account and were repaid – at some point – from that source.
[77] Rajinder Singh Gill was cross-examined by
Amy Francis. Russell Gill interpreted her questions into Punjabi and Rajinder’s
answers into English. Counsel suggested to Rajinder the amount of income
reported in income tax returns – based on the financial statement of the
partnership operating Gill Farms for 1998 – did not appear to include all
sales. He stated that all cash sales had been reported to the accountant who
had not appeared too interested in that information and agreed there may be
some unreported revenue even though he had advised the accountant about the
missing receipt book. He confirmed that all sales were reported even if a buyer
had not requested a receipt for the purchase of berries. When signing
his income tax return for 1998, he did not verify its accuracy
with respect to the amount of revenue reported. He identified
his signature on his 1998 tax return – Exhibit R-2, tab 47, p. 775
– which declared farm income in the sum of $73,712. Counsel recited the sources
of revenue – Exhibit R-1, tabs 35-36-37 – as follows: Kahlon – $42,124.48;
Universal – $11,552.40; Greenfield – $8,226; cash sales according to the
receipt book – $4,150 for a total of $66,052.88. Counsel advised Rajinder
that an examination of records revealed where Gill Farms had produced 88,450
pounds of berries in 1998, amounting to 11,056 pounds per acre, above the
average industry yield of 9,000-10,000 pounds. Rajinder pointed out those
records did not include the cleaned berries sold to Hamilton and stated the production of berries at Gill Farms in 2004 was
approximately 20,000 pounds per acre. Counsel reminded him that – at Discovery
– he had given an undertaking to provide information concerning the income of
family members residing in the same house and that it had not been fulfilled. Rajinder
agreed his position – at Discovery – had been that he would adopt the
answers provided by Hakam and also confirmed that several times during the
examination of Hakam, the proceedings went off the record in order that he
could provide information to Hakam concerning certain aspects of the farming
operation. At Discovery, there had been a series of questions put to Hakam
concerning the sum of $110,000 which counsel thought represented the difference
between identifiable deposits to the Gill Farms account and traceable sources
of revenue. Ms. Francis advised that figure is incorrect as the amount at
issue in relation to this alleged discrepancy is $87,000. Rajinder stated that
proceeds from a house loan had been deposited into that account. Counsel referred
him to a document – Exhibit R-1, tab 1 – dated April 29, 2005 –
provided pursuant to an undertaking – wherein he stated the house had been
completed in June, 1997. Counsel also referred to a statement – Exhibit R-2,
tab 40 – supplied by Ronnie Gill – pursuant to an undertaking – in which
details of disposition of the proceeds of a $350,000 mortgage were
provided. According to the statement – Exhibit R-2, tab 41, p. 652 – the
account of Rajinder S. Gill and his wife Manjit K. Gill at Khalsa was
overdrawn by more than $13,000 on October 31, 1998. Counsel referred
Rajinder to the notes ‑ Exhibit R-1, tab 24, p. 239 –
taken during the meeting at the Langley HRDC office on May 20, 1999, indicating
he had explained that he transported workers and performed other tasks such as
repairing water pipes, spreading sawdust, repairing a broken pole,
putting up netting and hooks, repairing damage to nets, cutting grass and
– on occasion – supervising workers and shipping berries. He confirmed he had
made those statements but it has always been his position that because he had
asthma he was not going to do physical farm work and even when carrying
out those duties as described at the meeting, they did not
occupy much of his time. He recalled that he drove workers between
one and three times per week since Hakam took over that responsibility
on Saturday and Sunday. In providing answers – Exhibit R-1, tab 20
– to the Questionnaire, it was stated – p. 111 – that "the
employees were picked up by Rajinder S. Gill most of the time". Rajinder
stated he did not agree with the adjective "most" but agreed he
had driven workers 3 days during some weeks. He was referred to
notes – Exhibit R-8, tab 14 – made by Emery in respect of the visit by
her and Turgeon to the farm. In those notes – p. 68 – there is a
description of work – attributable to Rajinder – concerning tasks performed on
the farm between March and June. That work included ground preparation,
removing branches, hand fertilization of each plant and other tasks that were
performed by 3 or 4 workers who were "on call" because they also
worked for other farms at the same time. Rajinder recalled providing that
description and agrees his recollection of events at that time – November 3,
1998 – should have been fresh since the season had just ended. He reiterated he
was not fully aware of day-to-day operations of the farm. He confirmed that
proceeds from berry sales to the canneries were deposited to the Khalsa account
and that transfers were made to the Fraser Valley account, as required. The Fraser Valley account was used to make all payments connected with
the operation of the farming business. Counsel advised that a review of records
revealed Gill Farms had been paid in full – by every cannery – on
October 21, 1998. She asked why some workers had been requested to
delay cashing their final pay cheque if there were no outstanding accounts
receivable after that date. Rajinder replied that canneries often did not pay
until at least the end of October and to be sure there were funds in the account,
some people were requested to hold off presenting their cheques until
after October 24, 1998. He agreed – however – that in 1998, funds had been
received already and there would have been no need for workers to delay cashing
their final cheque. Counsel referred him to a sheet – Exhibit R-2, tab 39
– on which monthly deposits to the Fraser Valley account – in 1998 – were listed. The total
amount was $172,282.64. In November, deposits amounted to $25,822.16 and in
December, the total sum was $32,620.78. Counsel informed Rajinder these
deposits did not include money from any cannery nor were there any transfers of
funds to that account from Khalsa. The relevant Fraser Valley statement – Exhibit R-2, tab 41, p. 584 – showed a
deposit of $11,220.78 on November 16, 1998, followed by a deposit of $13,000 on
November 19 and another in the sum of $6,000 on November 28. Counsel pointed
out some workers at Gill Farms had large withdrawals from their account at
about the same time as those large deposits were made to the Fraser Valley account. Counsel suggested that workers
were instructed not to cash their final pay cheque until they had paid certain
sums to the Gill family as a condition of their employment. Rajinder denied
that was the case and stated no money was received from any worker by any
member of the Gill family as alleged by the Minister or at all.
[78] Rajinder Singh Gill was re–examined by his
agent, Ronnie Gill. He was referred to a statement – Exhibit R-2, tab 41, p.
570 – dated November 10, 1998, with respect to the Fraser Valley account. He agreed that on
October 21, 1998, the account was overdrawn in the sum of
$5,051.01. According to the statement – p. 657,
same tab – $12,000 was withdrawn from the Khalsa account on October 21,
1998 and a deposit of the same amount was recorded – p. 570 – in the Fraser Valley
account that same day. On October 23, 1998, the sum of $5,700 – p. 657 –
was withdrawn – by cheque – from Khalsa and a deposit of that amount was
credited ‑ p. 570 – to the Fraser Valley
account. Rajinder agreed the Fraser Valley farm account had been in an overdraft
position until those transfers – from Khalsa – had been made. On November 7,
1998, Hakam and Harmit Gill wrote a cheque – in the sum of $2,520 – to the Gill
Farms account at Fraser Valley, as reflected on the statement on p. 571.
Even after these amounts were credited to that account, it was still overdrawn
by $2,530.05 on November 4, 1998. Earlier, a cheque dated October 15, 1998 – in
the sum of $9,868.46 – payable to Revenue Canada
had cleared through the account. Rajinder stated that in his opinion if every
worker had cashed his or her cheque within one or two days of receiving it, the
cheque would have been dishonoured because the line of credit on that account
was not sufficient. He and his wife – Manjit – had a $15,000 line of credit on
their Khalsa account but according to the statement – tab 41, p. 613 – they
were within $1,650 of that limit on October 31, 1968 and could not transfer
sufficient funds to the account of Gill Farms to help reduce any deficit
in the cash flow. By December 31, that $15,000 limit on the line of credit
had been exceeded by $111. According to the statement – tab 41, p. 709 – Hakam
S. Gill and Manjit K. Gill had $2,220.70 remaining on a line of credit and
another line of credit – p. 712 – set at $10,000 had been
totally used so that no more funds were available from that source. Rajinder
stated the Gill family had difficulty meeting expenses at that time and used
various sources of credit as well as having borrowed from friends during the
1998 season. He confirmed that he had been wrong at Discovery in attributing
some receipt of funds to a mortgage on the new house since that had been
completed in 1997.
[79] Ronnie Gill advised the foregoing constituted
the case for all appellants and both intervenors subject to any rebuttal
evidence permitted by the Court.
[80] James Paul Blatchford
(Blatchford) was called to the stand by Shawna Cruz, counsel for the
respondent. Ronnie Gill – agent for the appellants and the
intervenors – advised the Court she acknowledged Blatchford’s
qualifications and expertise as a forensic accountant as set forth in
Exhibit R-16. He is the holder of a Master in Business Administration from
the University of British Columbia (1986) and is a
Certified Management Accountant (1992) and has been recognized as a Certified
Fraud Examiner (1994) by the Association of Certified Fraud Examiners in Austin, Texas. From 1974 to 1988, he served
with the Royal Canadian Mounted Police, and in 1982, was assigned to the
Vancouver Commercial Crime Section where he conducted numerous investigations
of white-collar crime, including theft, fraud and related offences. As a
consequence, Blatchford was qualified as an expert in the field of forensic and
investigative accounting and examination of business records. Blatchford identified
a report – Exhibit R-17 – prepared by him – in his capacity
of Senior Associate – and his staff at the accounting firm of Lindquist
Avey Macdonald Baskerville (Lindquist). Currently, he is President of
James P. Blatchford Consulting Limited and said report was
transmitted to counsel with a covering letter – Exhibit R-18 –
on the letterhead of that firm. Blatchford stated he was contacted by Turgeon
from HRDC in the spring of 1999. He and an associate – Maryann Hamilton,
Chartered Accountant – met with Turgeon and Emery who provided details of
their investigation into the business affairs of Gill Farms and explained
they required assistance in order to interpret certain business transactions as
disclosed by numerous business and banking records. Blatchford stated the HRDC
office provided him with copies of schedules, documents, tax records of the
principals of Gill Farms, picking cards, payroll records and bank records. He
reviewed those documents and began his analysis. In order to obtain a sense of
the financial state of the farming operation, he examined the tax returns of
Hakam Singh Gill and Rajinder Singh Gill for the taxation
years 1994 to 1998, inclusive. He contacted Turgeon and Emery to
advise that additional information was required and he and Hamilton attended a
meeting at the Langley HRDC office on May 20, 1999, where Turgeon and
Emery met with the Gill brothers and their wives and Paul Wadhawan,
accountant. A Punjabi-speaking interpreter – Nav Chohan – was
present throughout. The meeting was held in a boardroom and participants were
seated around a long table. Turgeon acted as Chair of the meeting as questions
were directed to various members of the Gill family. The report – Exhibit R-17 –
had not been prepared at that point although certain components such as
schedules or tables had been completed. Blatchford recalled the meeting lasted
about two hours. His associate – Hamilton – took
notes of matters discussed including answers provided by members of the Gill
family. He considered the meeting to have been conducted in a professional and
cordial manner by Turgeon. Blatchford stated the format of the report was in
accordance with the practice at Lindquist. As stated on page 2 thereof, he
concluded that Gill Farms (referred to in said report as “RH” or “the farm”)
suffered a loss of net cash flow of $218,553 during the period from
January 1, 1994 to December 31, 1998, inclusive. He
prepared – as Schedule 1A to the report – a comparative statement of
annual farming results. He determined that Gill Farms was earning a “negative
gross profit” taking into consideration its wage expense as the only variable
expense. The effect of that finding was to conclude that the farm was not earning
a gross profit but – instead – was sustaining operating losses
attributable to wages even before taking into account any of the other
operating expenses. The amount paid for wages, salaries and benefits rose
from $33,275.55 in 1994 to $89,438.00 in 1998. In those
years, revenue from sale of berries was $23,072.60 and $73,712.00,
respectively. Blatchford prepared Schedule 1B which set out comparative
revenues net of wage expense including spousal wages. In Schedule 1C,
he excluded or “backed out” wages paid to the partners’ wives – Harmit
and Manjit – and ascertained the farm still suffered a loss of total gross
profit of $8,739 during the period under review before consideration of
all other operating costs. However, by utilizing this method, the remainder of
wages paid to non-related employees did not exceed sales revenue in 1994, 1996
and 1998. However, other operating expenses still had to be paid. In his view,
the farming operation did not make any economic sense because there was no apparent
opportunity for it to earn net cash flow from blueberry sales. Overall, based
on economic reality, it would have been cheaper for Gill Farms to have allowed
the berries to wither on the bushes since the cost of harvesting exceeded total
sales from 1994 through 1998. In his opinion, other operating
expenses were reasonable. From information supplied by the Gill family, he had
been aware the farm had lost money every year since 1981 and that various
crops including strawberries, raspberries and vegetables had been grown prior
to the land having been planted entirely to blueberries. He stated it was
obvious that a significant amount of capital was required in order that the
farming operation could become economically viable. It was apparent that money had
to come from some external source(s) in order for the farming operation to
continue year after year. He prepared Schedule 2 – tab 2 of
report – in which he listed all sources of income for Rajinder Singh Gill
and his wife – Manjit Kaur Gill – and Hakam Singh Gill
and his wife, Harmit Kaur Gill. During the period from 1994 through 1998,
the total income for these four members of the Gill family was $461,437,
excluding farm income. In the same period, the farm had a shortfall in the sum
of $207,564.93 as shown on Schedule 1A. Blatchford pointed out this
loss represented actual money and was not composed of soft costs such as
capital cost allowance. He also examined the Daily Log – Exhibit R-1, tab
32 – prepared by Harmit Kaur Gill pertaining to the period from
May 18 to September 26, 1998, inclusive. He recalled Harmit had
stated – at the May 20, 1999 meeting at the HRDC office –
that the entries had been made – from memory – in the evening and
that those recorded hours were entered – periodically – into the payroll
record since she was responsible for carrying out that function. In that sense,
Blatchford stated he expected the data in the log and in the individual payroll
records to be the same and Harmit had agreed that should be the case when discussing
the subject at the May 20, 1999 meeting. Blatchford referred to the
payroll record ‑ Exhibit R-8, tab 21 – of
Manjit Kaur Sidhu, a worker who is not an appellant in the within
proceedings. According to that document, Sidhu worked 8 or 8 ½
hours every day from May 18 to September 26, 1998. However, her
name does not appear in the Daily Log in Exhibit R-1, tab 32.
Blatchford stated that struck him as odd because Harmit had described the
process whereby she transferred information periodically from the log to those
payroll sheets. As a consequence, he began to harbour doubts about the overall
reliability of those records. Within the information provided to him, there had
been a reference to some pruning supposedly performed by
Himmat Singh Makkar at the end of the season but the ROE disclosed
Makkar had been laid off on August 29, 1998. At the HRDC meeting,
Hakam Singh Gill confirmed that date was correct and agreed Makkar
could not have helped with the pruning. In examining the payroll records,
Blatchford ascertained 9 out of 15 hourly employees
worked 8 or 8 ½ or 9 hours per day while the remaining
group of 6 worked 8 hours per day. He considered that to be somewhat
of an anomaly and noted that in some instances the abbreviation “Hrs” was
written in a box beside a number while other entries were composed only of the
number. He considered the payroll records may have been created later and not
on a regular basis by transferring information from the log where hours worked
by each employee were allegedly recorded. In his opinion, the entries on the
payroll records for the workers were not done on a regular basis because they
are too consistent in form and the same writing instrument seems to have been
used throughout that extended period. In Schedules 3A and 3B – tab 3 –
Blatchford summarized the hours worked each month from May through September by
the hourly workers, excluding any work performed by those individuals described
at various times as casual/contract pickers or pieceworkers. He concluded the
hourly-paid group worked a total of 9,868 hours during the overall farming
season, of which 5,623 were attributable to the berry‑picking season
and 4,245 were performed outside of that period. According to those
numbers, 43% of the total was spent in performing tasks other than those
related to picking berries. In Schedule B, the hours worked
– 1,245 – by contract pickers were included in order to arrive at the
total hours – 6,868 – worked by all employees during berry-picking
season which augmented the total employee hours to 11,113 for the overall
farming season. Blatchford undertook an analysis of hours worked by employees
and prepared Schedules 4 to 8, inclusive in which he set forth the
total hours worked each month – from May to September, inclusive – by each of
the hourly employees. He prepared a 3-page sheet – Schedule 9,
tab 9 – in which he used the number of pounds of berries delivered to
suppliers in order to allocate amounts picked per day by workers paid on an
hourly basis and those paid by piecework during the period from
May 17 to May 31, 1998. The 4 pages of Schedule 10
– tab 10 – dealt with the period from June 1 to
June 30. Schedule 11 – 4 pages, tab 11 –
covered the period from July 1 to July 31 and the 4 pages of
Schedule 12 – tab 12 – concerned the entire month of
August, 1998. As noted on page 4 of said schedule, Gill Farms delivered
46,082 pounds of berries to canneries and to those buyers who paid cash.
In the process of preparing Schedules 9-13, inclusive, Blatchford and his
staff referred to picking cards that had been issued to various pieceworkers.
It was ascertained that the workers in this category picked a total of
11,228 pounds during August, 1998, which led to the conclusion that
the hourly-paid workers must have picked the balance of 34,854 pounds.
Blatchford stated he reviewed the payroll records of those workers alleged to
have been paid on an hourly basis and ascertained that – as a group –
they worked a total of 3,501 hours in August. In order to calculate the
amount of berries picked per hour by hourly workers, he eliminated those days
on which no berries were shipped. From information provided by the Gills, he
understood they preferred to ship berries daily in order to ensure high
quality. Since the pieceworkers were remunerated solely on their production, he
did not know how many pounds they picked per hour but had been informed by the
Gills during the HRDC meeting that these workers usually picked 17.5 pounds
per hour on average. At page 20 of his report, Blatchford stated the Gill
family had informed him they expected each worker to pick between 15 and
20 pounds per hour. As set out in Schedule 11, the average pounds
picked per hour by an hourly-paid worker – in July – was 14 pounds.
In August, that production fell to less than 10 pounds per hour as set out
in Schedule 12. Blatchford stated that it appeared that there were days on
which the total pounds picked would have been represented by a negative number,
as noted in Schedules 11 and 12. He cited the example of
July 17, 1998, in which 248 pounds of berries were sold.
According to records made by Gill Farms, the pieceworkers picked 530 pounds
that day. However, the payroll records indicated 8 hourly employees also worked
on July 17. He noted similar results on other dates in July and August
including August 24 where the average pounds picked was negative 24
per hourly employee. According to the payroll records, 15 hourly employees
worked that day and information taken from picking cards established that
pieceworkers had picked 414 pounds of berries. On August 26, no
berries were delivered and pieceworkers picked 190 pounds. Again, the
payroll records indicated 15 hourly-paid workers were on the job.
Blatchford stated it made no economic sense for Gill Farms to hire 15 workers
on an hourly basis each of whom picked only 27 pounds of berries on
August 18, 1998. On August 5, 1998, according to
Schedule 12 – page 1 – the hourly-paid workers each picked
an average of 5 pounds per hour. Blatchford calculated that just to pay
wages for picking, the price of berries would have to range from $1.50
to $1.80 per pound, setting aside any consideration of all other operating
expenses. However, a review of records indicated Gill Farms was receiving
between 75 cents and 95 cents a pound from the canneries and
from $1.25 to $1.35 per pound from those buyers in the cash sales
category. This information led Blatchford to conclude that either there was a
significant amount of unrecorded berry sales or the payroll records were
unreliable. He had been advised by the Gills that there was approximately $4,000
in previously unrecorded sales. When asked by counsel what effect it would have
on his calculations if it were shown that another 5,000 pounds of
berries had been picked – 2,500 pounds in July and again in
August – Blatchford stated that was less than 100 pounds per day and
would have a minimal effect. He had also been told that the hours of work
performed by each hourly employee had been recorded in the log. Blatchford
stated it made no economic sense – in his opinion – to pay 15 people an
hourly wage to pick 5 or 6 pounds an hour for several days during the
peak period when on other days, fewer employees – perhaps 10 – each
picked between 23 and 38 pounds per hour. He considered the
production of berries at Gill Farms was within the industry average according
to the Ministry of Agriculture guide. Blatchford noted that the payroll records
indicated 3 hourly employees had worked at least 7 hours every day
from June 1 to September 26, 1998, a total of 118 consecutive
days. Based on blueberry sales receipts and delivery records, the blueberry
picking season was from July 2 to September 4, 1998, a period of
65 days. In preparing his analysis, Blatchford assumed that both
Manjit Kaur Gill and Harmit Kaur Gill had picked berries on a regular
basis. He agreed if that assumption was not accurate, then removing them from
the calculations, would increase the average amount picked per day or per hour
by the hourly workers. By way of example, the average amount picked per hour on
August 18 – Schedule 12, p. 3 – was 3 pounds per
worker. By eliminating Harmit and Manjit from that group, the average is
increased to 3.5 pounds per hour. Blatchford agreed that because he had
assumed Harmit and Manjit were steady pickers, the effect of excluding them
from this category would boost average production of remaining members by
approximately 15%. Blatchford explained that when preparing his report, he
had not been provided with any information that would lead him to conclude
Harmit and Manjit had performed any other duties except picking berries because
there had been a reference in the material that each of them had performed this
task. He was referred to notes – Exhibit R-19 – made by his
associate – Hamilton – during the May 20, 1999 meeting at
the HRDC office. Hamilton had written under the heading “Manjit” the
words “also pick” in the course of noting duties performed by her. The notation
“pick berries” was included in the listing of tasks done by Harmit. During that
meeting, Blatchford recalled Rajinder Singh Gill had discussed the duties he
had performed on the farm as well as providing an estimate that a reasonable
expectation of production by a picker was between 120 and 160 pounds
per day. At said meeting, Rajinder also related the history of the farming
operation and the difficulties encountered over the years which had resulted in
losses which were claimed when he and Hakam filed their income tax returns.
Blatchford stated he made his own notes during the meeting and also read Hamilton’s notes which, apart from being much neater,
confirmed his own recorded observations. On page 24 of the report – Exhibit R-17 –
there is a list of cheques payable to Hardeep S. Gill and
Kulwant S. Gill that were issued on the Fraser Valley account used by Gill Farms for business purposes.
None of these payments were recorded on the payroll records or on any ROEs.
Blatchford stated the effect of paying wages to Harmit and Manjit was to
increase the loss within the farming operation which was then claimed by
Rajinder and Hakam against other income. He agreed that in one taxation year, a
claim for a farming loss would not have assisted Rajinder because his other
income was too low. As employees, Harmit and Manjit would become eligible to
receive UI benefits and in Blatchford’s view, that was an advantage accruing to
the Gill family.
[81] James Blatchford was cross-examined by
Ronnie Gill. Blatchford stated he had access to original documents, copies
of which are in Exhibit R-2, tab 36, pp. 412-448. He assumed
information – including number of pounds – on the delivery receipts
was accurate. Blatchford conceded that the extra sales of about $7,000 as
reported in the 1998 tax returns of Rajinder and Hakam – through
incorporation of the Gill Farms financial statement for that year – could
indicate another 6,000 pounds of berries had been picked and sold directly
to small stores or fruit stands. He stated that – based on the information at
hand – he assumed all hourly employees were devoting full time to picking berries
during the picking season. He agreed that if some workers had performed other
tasks such as mending nets or cleaning berries on the conveyor belt, it would
affect his calculations. In preparing Schedule 1C – tab 1 –
of his report, Blatchford had excluded the wages of Harmit and Manjit when
comparing Gill family total revenues net of farm expense. He agreed that by
adding in those amounts, the family would have had another $17,300 to use
for living expenses. Blatchford agreed the Gill family would have had about
$50,000 income after deducting full farm losses in 1998. He had not
been provided with any information to indicate whether Hakam’s son and daughter
were working or contributing to household expenses. Blatchford agreed that in
1995 and 1996, Hakam and Rajinder had been permitted to claim only restricted
farm losses under the relevant provision of the Income Tax Act and that
this limitation would have precluded any significant advantage accruing even
taking into account salaries to Harmit and Manjit totalling approximately
$15,000. Blatchford pointed out that in 1997 and 1998, full farming losses were
allowed by the Minister and paying salaries to spouses would increase the loss
and allow a greater deduction by Hakam and Rajinder against other income.
Ronnie Gill advised Blatchford that the Daily Log – Exhibit R-1,
tab 32 – had been produced by Harmit Kaur Gill in order to satisfy
what she perceived to have been a request from HRDC. Blatchford replied that he
understood that entries had been made therein on a regular basis even though
there might have been some delay during the busy part of a season.
[82] James Blatchford was re-examined by
Shawna Cruz, counsel for the respondent. Turning to Exhibit R-19,
p 2 – the notes of the May 20, 1999 HRDC meeting –
Hamilton recorded that Harmit said she completed entries in the log “daily” and
that details were transferred to the payroll record “whenever she had time”
Blatchford recalled the Daily Log – Exhibit R-1, tab 32 –
was present at the meeting and reference to it led him to believe that when
Harmit was explaining her system of timekeeping, she was referring to that
document.
[83] Mark Sweeney was examined by Amy Francis,
counsel for the respondent. He stated he is employed by the British Columbia
Ministry of Agriculture and Lands (Ministry) as the Industry Specialist for berries.
He has a Bachelor of Science degree from the University of British Columbia and is a Professional Agrologist (PAg). In
order to obtain that designation, an individual must have a degree within an
agricultural specialty and at least 3 years experience working in that
field. It is also necessary to comply with annual continuing education
requirements. Sweeney stated he has been employed by the Ministry for
27 years, beginning in 1978 when he was the Manager of Community or Allotment Gardens and a greenhouse technician. From that position, he
became a vegetable specialist and worked in that capacity for 17 years
before assuming his current position in 1998. While working as a vegetable
specialist, he encountered many situations where the farmers were also growing
berries. Although there are over 1,000 berry farms in British Columbia, Sweeney is the only berry specialist
employed by the Ministry and is responsible for advising growers throughout the
province. He is concerned with the entire gamut of production from choices of
varieties and assessments of varieties to issues relating to soil management,
nutrition, fertilization, weed and pest control, harvest management and other
matters within the agricultural or horticultural industry.
[84] In view of Sweeney’s education, experience
and professional designation, counsel requested that the Court qualify him as
an expert. Ronnie Gill – agent for the appellants and
intervenors – did not object. Accordingly, Sweeney was qualified as an
expert in the discipline of growth and harvesting of berries and matters
related thereto and therefore able to offer opinion evidence in this respect.
Sweeney identified a report – Exhibit R-20 – that he prepared
at the request of counsel for the respondent. In the report, he
stated the main blueberry harvest began on July 5, 1998 and was
completed by September 9. However, limited volumes of early
varieties were harvested in late June and limited volumes of a late variety – Elliott –
were harvested into early October. In order to establish those
dates, Sweeney contacted packers and processors to determine – from their
records – the dates berries were first received and the date of the latest
deliveries in a season. In his experience, when the season starts, berries sold
to large packers and canneries are picked and shipped the same day while
berries destined for smaller markets may be harvested – in limited
volumes – up to one week earlier. Sweeney stated the most common variety
in the Fraser Valley is Blue Crop,
followed by Duke but in 1998 the Duke blueberry was not that common.
Although there are many varieties grown in the Fraser Valley, in 1998, about 60% of blueberries were
Blue Crop and all other types made up the balance. Sweeney stated Northland was
a minor variety and probably accounted for less than 3% of total volume
in 1998. Dixie was an even older variety and was not
widely planted by local farmers. In terms of ripening, Duke is first, followed
by Northland, Blue Crop and Dixie. However, there is considerable overlap
because they do not all mature at once so at some point in the season all
4 varieties referred to earlier could be picked on the same day. Sweeney
stated there is also more than one picking of each type because the berries
ripen over an extended period of time. He stated the price is determined by the
market and goes up and down based on volume and what is happening in the rest
of the industry within North
America. Often, the earliest
varieties command a good price but as the volume of harvest increases, the
price will drop in response. At the end of the season when volumes are light,
the price will increase again. In his opinion, the price per pound of
blueberries is more dependent on timing during the season than it is due to
differential in varieties. With respect to the matter of yields in 1998,
Sweeney stated they were above normal. In his experience, there is always a
large yield range from field to field depending on age of planting, variety,
method of harvest, localized weather conditions, soil type and grower
management. As a result, yields can range from 2 to 12 tons per acre.
A well-managed, mature field of Blue Crop should produce – on a regular
basis – 5 to 8 tons per acre if harvested by hand. The younger
plants do not produce as many berries as older plants but after 7 to
10 years, plants attain a maximum yield and production thereafter is at a
certain plateau. However, a farmer can have yields vary tremendously due to
weather and other factors. Sweeney stated the blueberry plants can last almost
indefinitely with good management and he is aware of a field in Richmond, B.C. that has been in production since the 1930s.
Some varieties – such as Blue Crop – are considered to be high-yielding
plants. Older varieties – including Dixie – are not as productive and
as a result have fallen into disfavour among farmers. The yield can vary
greatly from year to year and from farm to farm. Hand‑harvested crops produce
more berries – generally – than those picked by machine. Blueberries
are a resilient crop and can be grown in different types of soil but heavy,
compacted clay or extremely sandy or rocky soil is not conducive to good
growth. Sweeney stated he considered grower management to be the most important
single factor in determining yield because producing blueberries or any other
crop is a demanding task. Many factors are involved, including proper pruning,
fertilization and controlling over 15 different types of pests in addition
to dealing with weeds. The ideal manager will undertake a wide range of
activities in the correct way at the right time and will adapt and modify
procedures according to the requirements of the crop. Pruning at the wrong time
would have a negative impact on yield as would inefficient weed management.
Counsel referred Sweeney to one of the information sheets – page 5 –
appended to his report and to the paragraph headed Step # 6 dealing with
the subject of added annual return by increasing yields due to installation of
nets. In said paragraph, it states a well-managed, mature Blue Crop planting
can produce 18,000 to 20,000 pounds per acre if hand-harvested,
although the industry average yield across all varieties is about 9,000 pounds
per acre. Sweeney acknowledged there is a wide range for the yields as found in
information provided to growers. He explained the Ministry does
not want to mislead farmers – particularly prospective growers – into
believing they can achieve numbers that are basically unrealistic and are
rarely attained except by good growers in good years. In response to a question
from the Bench, Sweeney stated that 5% of growers would fit into the
category of top producers who achieved high yields. He stated it is necessary
not only to have experience but to have ability to manage a farm efficiently
and to take all steps required to enable growth of a good crop. With respect to
the number of pounds workers can pick per day, Sweeney stated in his experience
as a berry specialist and based on information received from growers, an
experienced picker working with a good crop could pick 400 pounds per day.
However, the range was huge in terms of picking ability among workers and
– most important – the crop because in order to pick large volumes
the fruit has to be large, uniformly mature and the field has to be suitable.
The amount picked per day also depends on the time within the overall season.
Most pickers prefer the Duke variety because the bushes are small, there is not
much foliage, the fruit is large and ripens more or less at the same time and
the pickers can strip away large clusters of berries in order to achieve a high
number of pounds per day. Sweeney reiterated the Duke variety, although common
now, was not widely planted in 1998. Sweeney stated that when considering
all factors most workers would pick between 200 and 400 pounds in an
8 or 9-hour workday. The Blue Crop variety was also easy to pick and
could permit large daily volumes while Northland – although a
good yielding variety – had more foliage which tended to slow
down pickers. Dixie – a late-maturing berry –
was not particularly high yielding and pickers would not do
as well with that variety. Counsel referred Sweeney to appended material
– p. 15 of his report – entitled Assumptions: Blueberry
Full Production – Hand-Harvested – Fraser Valley, wherein the target yield at full production is
12,800 pounds per acre. Under the following category headed Sensitivity
Analysis, a yield at 8,000 pounds per acre was low, 10,000 pounds was
average and 15,000 pounds was high. Sweeney stated those assumptions were
based on production of mature plants between 7 and 10 years old.
Dealing with the subject of profitability, the information sheet – p. 16 –
entitled Sample Enterprise Budget and Worksheet used 3 different prices
per pound based on whether the produce was sold as fresh, for processing or at
the farm gate which multiplied by the target yield of 12,800 pounds per
acre produced revenue in the sum of $9,752. On said sheet, there is a
detailed listing of projected expenses which totals $8,427 per acre. The
bottom line – referred to a Contribution Margin – is $1,335 per
acre which does not take into account interest charges, depreciation or other
indirect expenses which would reduce pre-tax profit to $1,000 per acre. If
someone farmed 8 acres, they would have a net profit – before
tax – of $8,000 without taking into account the labour contribution
of the farm operator(s). Sweeney stated an increase in price to $1.20 or
more per pound for fresh berries in the last few years was responsible for
increasing revenue per acre and would produce a better profit. However, the
labour costs remained high and more farmers were mechanizing picking in order
to reduce operating expenses. At page 2, paragraph 3 of his report,
Sweeney dealt with the matter of labour requirements which vary greatly from
field to field depending on several factors. Hand-harvesting is the most
time-consuming operation and in his opinion it is done on a piecework basis. In
his opinion, the most significant hourly-paid farming operation would be winter
pruning which the Ministry estimated would required 65 hours per acre for
blueberries. In Sweeney’s experience, virtually all farmers pay pickers on a
piecework basis, although he accepted there may be some harvesting done for
specialized markets that would not reward a pieceworker sufficiently so an
hourly rate would be more appropriate. In his opinion, that situation would be
extremely rare and he had not encountered this scenario in the course of his
duties with the Ministry. Apart from pruning, certain other tasks were
remunerated on an hourly basis including spraying, mowing, fertilizing,
installing and removing nets and other minimal operations. Pruning is done
– generally – once per year in the dormant period between November
and February because if performed later in the spring after buds begin to
break, considerable damage is done to those developing flower buds. In the
event some pruning was undertaken at different times of the year, Sweeney
considered it would be limited to removal of dead or diseased branches after
harvest because the damage would be visible and those branches would be cut off
and taken away for disposal elsewhere in order to prevent any spread of the
disease. Following harvest in late August or in September, because the supply
of sap has been cut off, the leaves on diseased branches turn a bright,
red-brown colour. He estimated this task could be performed by one person
walking through the field and that the total operation would occupy a few hours
per acre at the most. The major pruning in the dormant period is either
performed by hourly workers or some growers do that work by themselves with a
small crew of helpers. Sweeney stated that fertilizing is done in the spring and
most growers apply it twice, once when growth begins in April and a second
application a month or more later. Some growers spray again in June. New
plantings are generally fertilized by hand and would require only a few hours
per acre. Larger growers use a tractor to pull a fertilizer spreader but small
growers have workers walking down the rows carrying a bucket of fertilizer and
spreading by hand. As stated in paragraph 7 – p. 2 – of his
report, hand weeding of blueberry plants is not required generally except in
young plantings or for specific problems in mature plantings because the use of
sawdust mulch and herbicides is an effective method of controlling weed growth.
Unlike some other crops such as strawberries, there is a wide range of
herbicides available for use on blueberry crops. While weeding by hand is a
significant labour-intensive operation on a strawberry farm requiring up to
50 hours per acre, Sweeney estimated a typical blueberry farm would need
only 3 or 4 hours per acre to walk through and perform whatever hand
weeding was necessary. In his experience, most growers put down sawdust every
third year and not twice a year because there is no need for that frequency
with proper use of chemicals. Most herbicides are applied between late February
and late April and growers can develop their own weed control program based on
their needs but nearly all herbicides must be applied before the bloom is on
the plant. July and August are not months in which sprays are typically used
because of a requirement printed on the labels of products such as Gramoxone
warning it is not to be used once the blossom is on the plant. Since Gramoxone
is a generic weed contact killer, it will kill most weeds when they are green
and although it could be used on grass, the more common method to get rid of
unwanted grass would be to apply the product Roundup. Even with Roundup, it is
not supposed to be applied within 30 days of harvest. In Sweeney’s
opinion, it would be difficult to spray in late June because the plants are
heavy with berries and would be drooping down to the ground and it would be
tricky to spray weeds without contacting the plant. Another method of weed
control is to use sawdust mulch which is spread two or three inches thick in an
area two or three feet in diameter around the base of the plant. After three
years, the sawdust decomposes and creates humus in the soil which is beneficial
to the rooting environment. At this point, it has to be replaced but Sweeney
did not consider it would be necessary to replace sawdust during a season – other
than in a few spots – because it would be difficult to pickers to disturb
sufficiently a two or three-inch layer of material to the point where new mulch
was needed. With respect to the matter of irrigation, Sweeney stated
it would be normal for a grower to ensure – perhaps in May –
that the system was working properly. At that time, leaks would be repaired and
maintenance and inspections would be performed. The drip system is relatively
free of maintenance although breaks in the line can be caused by animals such
as mice or coyotes chewing through the material or by workers stepping on the
drippers. In his opinion, even an older irrigation system would not require
much time to get it operating at the beginning of the season. He was not
familiar with the system used by Gill Farms where the emitter or dripper could
not be screwed into the outlet in the hose but had to be re-installed elsewhere
by piercing another hole. He agreed that if the water supply had not been
filtered properly – preferably with a sand-filtration system – it
could plug up the entire mechanism and added that clean water was vital to the
efficacy of a drip‑irrigation system as dirt or other material could clog
up the lines and block the drippers. On page 3 – paragraph 9 –
of his report, Sweeney dealt with the topic of netting. The nets are installed
prior to the first fruit ripening, normally during the month of June. Removal
would be done after harvest, normally in September or as late as October
depending on the variety of berry grown. Minor repairs to nets are done
– normally – during the installation and if there is major damage,
that section of net is replaced. The estimate by the Ministry – based on
information received from several growers – is that 36 hours per acre
is required annually to install and remove nets in the period including 1998.
A revised estimate in 2001 reduced that requirement to 15 hours per
acre. The initial estimate was based on information gathered when there were
not many growers using netting and the Ministry learned it was a time-consuming
and often frustrating process to install nets but as growers became more
experienced, they needed less time to complete this operation. Sweeney stated
that he considered 36 hours per acre to perform all tasks associated with
the practice of netting would be a generous allotment even allowing for some
time attributable to re-setting poles that had become loose at the base. Since
there was no mechanized system to install and/or remove netting for blueberry
plants, human labour was required. Returning to the subject of the different
markets for berries, Sweeney stated that for the most part machine-harvested
berries are sold for processing and freezing and the price per pound is less
than for berries sold on the fresh market or directly to buyers at the farm.
The labour requirement for berries destined for the fresh market will be higher
than for those intended for sale at the canneries or processors. Sweeney stated
the price differential between processor/cannery berries and fresh market can
vary depending on the market. The standard for Individually Quick Frozen (IQF)
berries is very high and those berries must be picked carefully and cannot be
bruised or otherwise damaged or contain debris. At or near the end of the
season, berries of lower quality will be sold as juice grade and will bring a
lower price. Handpicking is expensive because care must be taken to avoid
picking green fruit or damaging the berries. Sweeney was familiar with
Universal and knew that entity was a processor and that it and many other
processors – including Kahlon – also sold fresh berries to their
customers. In Sweeney’s experience, farmers do not want to be sending berries
to the canneries which are full of debris such as twigs and leaves and/or green
berries but they would not bother running the berries down a belt because that
operation is done by the cannery. The conveyor belt is used by farmers to clean
and sort berries that are sold directly to the consumer or to a local produce
store. Generally, berries are delivered in lugs or other larger containers to
the canneries while smaller buckets are used by pickers to hold the fruit until
it is emptied into a larger container. Some containers used to transport
berries to a processor may hold up to 1,000 pounds and even though the
bottom layer is squashed, it does not matter if the product is being used to make
jam or juice. However, if berries are intended for the fresh market, they will
be shipped in containers that are flatter and hold only 20 or 25 pounds.
Sweeney stated the general rule observed by blueberry growers is to take the
berries to the cannery as soon as possible, particularly during hot weather,
even though a blueberry is much more durable than other fruits and is regarded
as a “shippers’ dream” berry.
[85] Mark Sweeney was cross-examined by
Ronnie Gill, agent for the appellants and intervenors. He confirmed that
in the course of his duties he has observed pickers placing berries into 5-pound buckets
which are taken to the scale ‑ sometimes several at the same
time – for weighing. Sweeney was referred to the Weight Check slip – Exhibit R-2,
tab 35, top of p. 394 – issued by Universal in which the word
“flats” was crossed out and the word “lugs” was written to the left thereof.
The gross weight of that shipment – comprised of 9 lugs – was
317 pounds and the rate for those fresh berries was 90 cents per
pound. Sweeney agreed that appeared to be so but most berries are shipped
in flats in order to obtain the fresh market price. Sweeney was shown a
bundle of printed berry shipment receipts – Exhibit R-2,
tab 36, pp. 412 – which indicated Kahlon received berries from
Gill Farms that had been shipped in containers described as “light lugs”.
According to the receipt at the top of p. 412, 754 pounds of berries
were shipped in 21 lugs indicating each lug – on average – held
35.9 pounds of berries. The Grower Payment Receipt – p. 408 –
shows Kahlon purchased 24,453 pounds of berries from Gill Farms for which
it paid the fresh rate of 80 cents. This category represented 41% of
total sales by Gill Farms to Kahlon in 1998. Sweeney agreed that the total
production of Gill Farms in 1998 was comprised of 88,450 pounds sold
to canneries/packers as represented by receipts. Assuming that there had been
extra sales of 10,900 pounds not substantiated by receipts or other
documentation and adding that volume to those sales to Hamilton and to Lower
Mainland groceries as well as fruit stand sales on the farm, Sweeney agreed
total production could have reached 125,200 pounds,
amounting to 15,650 pounds per acre which would be a yield at
the upper end of the scale. Ronnie Gill advised
Sweeney that Gill Farms produced ten tons – 20,000 pounds – of
berries per acre in 2004. Sweeney replied that this number would indeed
represent the peak of yields and it would be difficult to achieve
– consistently – that volume. With respect to pruning, Sweeney stated
there is a bacterial blight that caused blackening of the tips of branches and
shoots and causes a die-back of the branches but it does not occur on an annual
basis. It does appear more often in areas more prone to frost. The appropriate
response is to apply fungicide in the fall and to remove only the blackened
branches by pruning as it is not economical to prune the small blackened tips.
Sweeney stated the standard spacing of blueberry plants is 1,452 per acre
and that they are planted in rows 10 feet wide with 3-foot spacing
between plants. If a grower planted with 2‑foot spacing, the land
would accommodate up to 2,000 plants per acre. With respect to replanting,
Sweeney stated a grower should determine why the existing plant died as it may
have been due to a disease. He estimated it would take about 10 minutes to
remove the old plant and another 2 minutes to plant the new one. He agreed
the efficiency of the workforce varies within the industry and that most
farmers access the same labour pool. In recognition of this fact, the Ministry
uses a cross-section based on a wide range of information. Because of the cost
of acquiring nets and the time-consuming installation and removal operations,
it is not always economically feasible for growers to utilize that technique to
prevent crop loss. The cost of netting is approximately $3,000 per acre
which means a grower has to save a lot of berries from birds in order to
justify the cost, not only for the initial acquisition but subsequent annual
expenses related thereto. Sweeney stated some losses due to birds eating the
crops are field-specific as well as particular to a season. If the birds are
plentiful and the crop is heavy, losses can range as high as 20% of total
which could be substantial if yields were 16,000 pounds per acre and the
price was 80 cents per pound. Using those numbers and applying them to an
8‑acre farm, Sweeney agreed the total loss could be more than $20,000
and the volume of production by Gill Farms justified the use of nets. He added
that the nets must be installed and removed as efficiently as possible. He
agreed that grass should be sprayed because it will remove essential nutrients
from the soil that is needed by the plants. In his opinion, hoeing to control
weeds is not usually necessary on a blueberry farm. He stated most
high-yielding farms cannot attain superior levels of production without
utilizing a proper weed control program. Those farms that are certified as organic
farms often suffer a 50% loss of crop due to uncontrolled weeds. Sweeney
stated he did not consider it necessary to devote much time to resetting poles
or tightening wires and conceded the 36-hour per acre estimate by the
Ministry to perform all tasks related to netting probably did not include these
incidental matters.
[86] Charanpal Singh Gill (Charan Gill)
was examined by Amy Francis, counsel for the respondent. He is the
Executive Director of the Progressive Intercultural Community Services Society
known as PICS. His résumé was filed as Exhibit R-21. Charan Gill
obtained a Master of Arts in India – in 1959 – before coming
to Canada. In 1970, he was registered as a
Social Worker in British
Columbia. He attended University of British Columbia and received his Bachelor of Social Work
in 1982 and his Master of Social Work in 1983. After a 32-year career
in the public service with the Ministry of Human Resources, he took an early
retirement and was instrumental in creating the PICS organization. Charan Gill
described PICS as a diverse society that provides services to the
multicultural population and there is one specific unit which provides support
to farm workers. PICS holds orientation workshops where workers are advised of
their rights and responsibilities and they are assisted with respect to matters
arising from employment situations. There is also an English Language, Second
Language for Adults (ELSA) program staffed by 6 or 7 teachers. PICS
has offices in Surrey and Vancouver and employs over 40 people working
under Charan Gill’s supervision. Those offices offer employment counselling and
also have settlement workers who help people to deal with problems they encounter
in terms of immigration or to assist farm workers in collecting unpaid wages.
PICS has a legal advocate who works strictly for farm workers. Recently, PICS
built 54 units of seniors’ housing as well as a 72-bed assisted
living facility. Workshops are held to deal with subjects such as crime
prevention, drug addiction and youth programs. PICS is a registered charitable
organization and a member of the United Way Agency. The society operates Colony
Farm Project on a 167-acre parcel of land devoted to growing produce while
providing training to farm workers and farmers. PICS assists members with
translation from English to Punjabi, Hindi and many other languages. PICS
currently operates with a $5 million annual budget and will add 32 employees
due to the needs of the assisted living housing development. Charan Gill
stated PICS was founded in 1987 and at that time he was President of the
society as well as Executive Director, for which he received a salary of one
dollar per year. He was advised he could not hold both positions and resigned
the post of President. In 1978, he began working with the Canadian
Farmworkers Union (CFU) and other groups dealing with anti-racism and other
educational programs pursuant to an informal association until PICS was formally
registered as a society in 1987 and began serving as an umbrella
organization. Charan Gill stated he and three other people formed the Union as a result of him and his family having gathered
firsthand knowledge of working conditions for farm workers as a result of
picking berries to earn extra money for family vacations. A labour activist – the
late Cesar Chavez – renowned for his work in California as founder of the
United Farm Workers and the leader of the grapes boycott was invited to British Columbia to assist in forming CFU. Charan Gill has served as Secretary-Treasurer
from 1978 and still occupies that position. In the early stages, CFU was
involved in collective bargaining with farmers and growers but provincial
labour legislation was amended to make it easy for unions to be decertified.
Throughout, CFU has sought better working conditions since there was often no
drinking water provided, no washrooms and living quarters were unhealthy.
Although by 1984 all units were decertified, CFU still had 200 members
and was itself a member of the British Columbia Federation of Labour. It
decided to devote its efforts towards lobbying governments to pass legislation
to improve WCB coverage, amend health and safety regulations and to require
employers to provide some employment benefits for farm workers. In those years,
farm workers were not included in the labour code. At one point,
Charan Gill – through PICS – was involved with an experiment
called the Farm Labour Project (Project). PICS obtained a labour contractor’s
licence and hired workers with the intent to provide them with better wages and
working conditions. The goal was to demonstrate this approach could work so
other employers in the agricultural industry would follow. However, the result
of the experiment was the project lost $10,000 the first year and
$12,000 the next, due in part to a misunderstanding of provincial labour
legislation which required broccoli and Brussels sprouts workers to be paid
hourly rather than by piecework. This misapplication of the regulations led to
PICS paying a fine as well as wage arrears based on an hourly wage to those
workers who performed tasks relating to those two particular crops.
Charan Gill stated the PICS-operated project paid its workers by piecework
to pick berries according to the standard within the industry. In his experience
gathered during the past 25 years, he has never encountered an employment
situation where an hourly wage was paid to berry pickers by any grower.
Charan Gill stated the Project had only 35 or 40 workers in the
midst of an industry that employed up to 15,000 and could not make a dent
in changing employers’ attitudes because the workers were scared and so were
the labour contractors. He discovered that if Project workers were at a farm,
they would be sent to an area where the crop was poor. Charan Gill stated
this experience operating a labour contracting entity provided an opportunity
to learn the “inside story” and caused him to conclude “unless you do lots of
hanky-panky, you cannot make money”. Charan Gill stated he was involved with
many issues while serving as Secretary-Treasurer for CFU which instituted a
program where informational leaflets were distributed to workers. However, some
farmers would not allow CFU representatives to enter the property. Charan Gill
stated he was pleased to see that educational task assumed as part of the
duties of Agricultural Compliance Team (ACT) composed of members of the provincial
Employment Standards Branch (ESB) and employees of HRDC and one or more other
governmental agencies from either the provincial or federal government. In
his view, this squad performed an excellent service over the course of
4 or 5 years in obtaining compliance with existing employment
standards and regulations pertaining to employment of farm workers.
To his chagrin, the activities of that group – ACT – were
reduced – in 2001 – to the point where he thought it had
been completely dismantled. Charan Gill stated he is currently active in
farm labour issues and – two or three times a week during the
winter – instructs classes of 35-40 people in a workshop setting in
which participants are helped with language skills and informed about their
rights under various pieces of provincial and federal legislation affecting
their employment. Resource people from various government departments or
agencies attend the workshops and explain the methods whereby workers can lodge
a complaint if they feel they have been treated unfairly. Over the years,
Charan Gill has written articles on various aspects of farm labour practices,
including dangers associated with child care on farms and improper use of
pesticides and participated in research leading to the publication of a book dealing
with those issues. From 1978 to 1980, he assisted in the production
of a documentary by the National Film Board entitled “A Time to Rise” which he
considered presented an accurate portrayal of the struggle of farm workers to
improve their working conditions. Charan Gill is the recipient of the
Order of British Columbia (1999) as well as a Human Rights
Award in 1983. Counsel for the respondent proposed Charan Gill be
recognized by the Court as an expert in farm labour practices in British Columbia. Ronnie Gill, agent for the appellants and
intervenors did not object. In view of the qualifications and experience of
Charan Gill as disclosed in his testimony, he was so qualified and
permitted to offer opinion evidence with respect to that subject matter. With
the agreement of Ms. Francis and Ms. Gill, the testimony of
Charan Gill received to this point with respect to the issue of
qualification as a expert witness was incorporated as part of
his testimony as a whole. Counsel filed – as Exhibit R-22 –
a report – dated June 21, 2005 – prepared by
Charan Gill. Charan Gill estimated about 65% of the individuals assisted
by PICS would be South Asians and that out of a total work force of
32,000 agricultural workers in B.C., at least 23,000 would be South
Asians, mainly from farming regions in Punjab, India. Charan Gill stated
it has always been his aim to eliminate piecework because farm workers were not
earning more than the equivalent of $5 per hour for a 10-hour day. He
ascertained during research on this subject that farm workers were remunerated
by piecework as early as 1901 and in his opinion payment according to
piecework on berry farms is almost universal. In his experience within the
industry, he has never encountered any blueberry farmers who pay an hourly wage
to pickers. However, he is aware of a practice where blueberry pickers will
work 10 or 12 hours and earn $60 based on piecework but that
amount will be converted by the farmer to an hourly minimum wage of $8 per
hour for 7 or 7.5 hours. The result is that workers are paid
according to one method but the records reflect another. In Charan Gill’s
opinion, growers believe they cannot afford to pay the hourly minimum wage
because they have to compete with product from California. He estimated it may be possible for a few very fast pickers to make
more money on piecework than they would if paid an hourly wage but this would
be possible only for one or two weeks during the peak of the season. In his
experience, most labour contractors pay pickers 40 or 45 cents per
pound and during the height of the season if the crop is good, a worker can
pick 150 to 200 pounds of blueberries per day for a maximum total
wage of $90. However, the daily volume during a first picking may be only
100 pounds and the same production can be expected during the third
picking. As a result, only during mid-season can high daily volumes be attained
and over the entire 6-week berry picking season, a competent picker could
earn an amount close to the equivalent of the hourly minimum wage for only two
weeks. Charan Gill stated he has not seen or heard of any worker who could
pick more than 200 pounds of blueberries per day. In his opinion, berry
pickers in the Fraser Valley who are
remunerated according to the common industry standard of piecework, will not
earn more than $5 per hour by working 10 hours per day. Gill
stated there are several varieties of blueberries and some farmers may grow
only one or two and even if more varieties are grown which mature at different
times, in his opinion based on the total growing season, no picker will earn
more than the sum of $5 per hour. Charan Gill stated pieceworkers
work long hours – 10-12 per day – and farmers may – on
occasion – pay some of them an hourly wage to perform tasks such as
hoeing, pruning or other duties but not for picking berries. He stated his
personal experience in operating a labour contracting business – via
PICS – as well as based on observations and industry research for 25 years
have led him to conclude there is a considerable amount of EI fraud within the
industry. In his view, the farm workers are caught in the middle and lose UI
benefits because proper records have not been kept by farmers or there is some
fraudulent activity perpetrated by labour contractors who either change the
name of their existing operation or file for bankruptcy and start afresh with
another entity for another season. Charan Gill stated ACT was responsible
for charging over 100 farmers for breaches of ESB regulations and either
preventing or discovering breaches of EI regulations. In his opinion, during
the six years ACT was active, it reduced fraud and malpractices on the farms
and performed inspections on the engines and brakes of vehicles with a view to improving
safety of workers. By 2001, ACT was no longer visiting farms with the sort
of frequency required to carry out its mandate. In his view, the labour
contractors and farmers are in a better position to buy whole tables at fundraising
dinners for politicians and the unorganized farm workers did not have that kind
of political clout. Legislation and/or regulations were modified since 2001
to permit farm workers to work up to 100 hours per week and there is
no provision for overtime pay. The age at which a child could work on a farm
was reduced from 14 to 12 and a special training wage of $6 per
hour – at $2 below the otherwise applicable minimum wage – has
been abused by farmers. Holiday pay was preserved and is supposed to be paid
every two weeks. The rates for piecework established by regulations were
designed to include payment for statutory holidays during the season. Overall,
he estimated EI fraud cost millions of dollars per year in the Fraser Valley. Because EI regulations have undergone
revisions in recent years, it is more difficult to work sufficient hours to
become entitled to benefits. He is aware of incidents where people who had never
been near a berry farm purchased ROEs in order to qualify for UI benefits.
Charan Gill stated it is possible for apple pickers in the Okanagan area
to earn more than minimum wage for their efforts but he is not aware of any picker
who has earned the equivalent of the hourly minimum wage for an 8 or
10-hour day while picking raspberries, strawberries or blueberries.
[87] Charan Gill was cross-examined by
Ronnie Gill. He agreed that a farmer ‑ in 1998 –
could pay holiday pay of 7.6% to an hourly-paid worker instead of merely
the mandatory 4% on the basis the higher rate took into account work done
on one or more statutory holidays during the season. Charan Gill stated he
had never visited Gill Farms and was not otherwise familiar with their methods
of operation. He stated he was aware of the general practice within the
industry which was to pay workers for 7 or 8 hours at the minimum
wage even if they had worked as many as 10 or 12 hours per day.
At the end of the season, the worker does not have enough insurable hours to
qualify for UI benefits following layoff and that situation creates the
opportunity for fraud because the worker wants credit for more hours and
pays the farmer for an ROE that meets or exceeds the minimum requirements
for said benefits. Charan Gill stated it is the older workers ‑ particularly
those recently arrived from India – who are susceptible to this sort of
arrangement. Although the situation has improved somewhat due to a general
shortage of labour, it is still the older workers who pick berries because
younger people are employed in greenhouses where they are paid an hourly
minimum wage. Charan Gill stated there were about 500 Mexican workers
employed on farms in the Fraser Valley in 2005 and they were paid
between $11 and $13 per hour even though local workers were paid by piecework
which was not equivalent to minimum wage. Charan Gill stated he had heard
of a farmer who paid pickers on an hourly rate in 2005 to harvest both
raspberries and blueberries but the usual practice when there is a labour
shortage and berries are ripe is to increase the price per pound to 50 or
55 cents in order to attract workers. In response to a question from the
Bench whether he had encountered a two-tiered farm work situation where pickers
in one group are paid an hourly wage and those in another group are paid by
piecework because they want to come and go as they please, particularly if they
have other jobs, Charan Gill stated he had not. In his opinion, only
workers performing tasks such as driving tractor or hoeing or heavy-duty work
would be paid an hourly wage whereas all pickers ‑ most of whom are
elderly and predominantly female – are remunerated on a piecework basis.
Even though people working on vegetable crops such as broccoli and sprouts are
supposed to be paid an hourly wage, Charan Gill stated it is often a
normal practice for growers to pay workers at a piece rate because no one from
the government checks on it. Despite repeated efforts from CFU to end payment
to farm workers on piecework, the policy continues and berry pickers are paid
according to an established minimum rate per pound unless they can obtain more.
Charan Gill stated that in 2005, a pound of blueberries sold
for $1.75, the highest price he could recall. He is aware that 108 labour
contracting entities are operating in the Lower Mainland but is not aware of
any who are paying workers a minimum hourly wage to pick berries. He agreed
there has been an increase in the past two or three years in the number of
farmers who have decided to bypass the labour contractors and not only hired
workers directly but acquired vehicles for purposes of transport to and from
the farm. Charan Gill stated the number of farm workers in the Fraser Valley has fallen from nearly 20,000 per
season to 10,000 or 12,000 due to a variety of factors including the
trend to use machines to pick the crops. However, world demand for blueberries
has been increasing rapidly and more land in the Fraser Valley is being put into production to supply that need.
There are a few small blueberry farms on Vancouver Island and pickers there are also paid per pound because if
berries are being sold for $1 a pound and it costs 40 cents or more
just to pick them, there is not enough money left over to cover the remainder
of expenses. Charan Gill stated that in his experience based on
observations and research within the berry industry, if a farmer were to pay
pickers an hourly minimum wage, he would go broke. He stated he is a blueberry
grower himself and has 4.5 acres. In the event he had to pay minimum wage
to pickers, he would not be able to make a profit. In his opinion, it is not
economically feasible for a farm of less than 20 acres to acquire a picking
machine at a cost of around $90,000. Because of his personal experience as
a grower, he stated he would be very surprised if a larger grower like Gill
Farms could pay pickers an hourly minimum wage and still earn a profit. He
stated the per-acre yield on his farm was 10,000 pounds and did not know
of any grower who produced more than 18,000 pounds per acre except – perhaps –
on a small two or three-acre parcel and that 15,000 pounds was a high
yield. Ronnie Gill advised Charan Gill that Gill Farms – in 2004 –
achieved a yield of 20,000 pounds per acre according to the testimony of
Rajinder Singh Gill. Charan Gill replied that he had never heard of such a
high volume, although with proper use of netting and the right growing
conditions he conceded that number might be attained by a few growers.
Ronnie Gill referred Charan Gill to the second sentence of the second
paragraph on page 2 of his report – Exhibit R-22 – where he
stated “[S]ome growers provide an hourly wage initially to lure workers to stay
work [sic] for them, but no one continues to pay them an hourly wage
throughout the whole season”. She asked whether some farmers might not continue
to pay an hourly wage in order to keep employees. Charan Gill responded
that some workers would be paid an hourly wage for performing certain tasks but
not for picking as that method of payment – in his experience – had
never been used to compensate blueberry pickers. In his view, the younger
people in the Indo-Canadian community were not going to become berry pickers in
the future because they were accepting other jobs within the agricultural
industry that paid on an hourly basis even if only at the minimum wage. As a
result, the supply of pickers was drawn from a pool of elderly immigrants who
did not want to become a financial burden to their children. Charan Gill
predicted that increased mechanization would result in fewer workers and small
farmers would rent machines in order to harvest their crops.
[88] Claire Turgeon was examined by
Amy Francis. Turgeon testified she is employed by Human Resources and
Skills Development Canada (HRSDC) as Team Leader of the Investigation and
Control Unit HRDC in the Abbotsford office. She started working for HRDC – the
predecessor of HRSDC – in 1995 as an Investigation and Control
Officer (ICO). She also fulfilled the additional responsibility of Team Leader
of ACT, also referred to as the Joint Compliance Team. In that capacity, she
was lead investigator for the team which was composed of representatives from
the provincial Ministry of Labour, ESB, and investigators from Canada Customs
and Revenue Agency (CCRA), a federal agency. The mandate of ACT was to detect
and deter fraud and abuse arising from breach of relevant government
legislation pertaining to farm workers and employment entitlements arising from
their employment. Depending on the results of an investigation, ACT recommended
either the imposition of administrative penalties or prosecution by the Crown
of certain offences. Turgeon stated ACT was moved from the HRDC Abbotsford
office to the branch at Surrey and that it continues to operate. Turgeon stated
she is no longer involved with that team but understood it was still making
visits to farms. Turgeon stated that in the course of her employment, she
worked on files dealing with farm work and some investigations involved more
than 100 workers and their employers. Before working for HRDC, she was an
Immigration Officer assigned to the Enforcement Unit and earlier she was a
constable with the Royal Canadian Mounted Police (RCMP) for 9 years. In
both of those roles, she was accustomed to interviewing individuals, many of
whom did not have English as their first language. As a result, she was
familiar with the practice of using interpreters when conducting interviews.
Turgeon stated files arrive on her desk as a result of an investigation by ACT,
a referral from an EI Insurance Agent or in order to follow up on tips received
from various individuals who provide information concerning a farm employment
situation. Turgeon stated she received the file pertaining to
Manjit Kaur Gill because the Insurance Agent was concerned about the
effect of the non-arm’s length relationship between this worker and the
partners who owned Gill Farms. Turgeon stated she had been requested by Emery
to accompany her on a visit to Gill Farms on November 3, 1998 and
notes of that visit by her and Emery are in Exhibit R-8, tabs 13
and 14, respectively. At that time, Turgeon considered it was a
preliminary, fact-finding visit to obtain information concerning the business
operation. The visit was unannounced which was in accord with the policy
applicable to investigations of this type. During the discussion with members
of the Gill family, Turgeon noted Harmit Kaur Gill and Manjit Kaur Gill were
having more difficulty communicating in English than Rajinder Singh Gill
who had a better command of the language. Turgeon stated she and/or Emery asked
a question more than once or in a different way until they were satisfied their
inquiries were understood. The door to the Gill residence was opened by
Rajinder and when Turgeon identified herself and Emery and handed him her
business card, they were invited inside and offered beverages. She described
the subsequent discussion – while seated at the kitchen table – as
cordial. However, at one point, a teenage female member of the Gill family
appeared and was upset at something Emery had said and as a result the tone of
the meeting changed. Turgeon stated she raised her voice to the young female
when advising her it was not her business to interfere with the discussion. Turgeon
stated there was never any discussion of the matter of babysitting – allegedly
done by Manjit – as later stated by Manjit in her testimony. During the
discussion, either Turgeon or Emery asked questions and one or more members of
the Gill family would respond. Turgeon stated she made her notes later the same
day from other handwritten notes that were in point form. She wrote
– p. 64 – that “Manjit Gill does not do any fertilizing or
spraying and she does not pick berries. Her only duties are supervising the
workers during berry time and for a short time before and after berry picking”.
Turgeon stated she could not remember – specifically – that statement
but wrote it down at that time in her short-form notes and is satisfied that
notation is accurate. Because the point of the investigation was the employment
of Manjit Kaur Gill, it was important to obtain information about her
duties. As noted on p. 65 of her notes, Turgeon demanded Gill Farms
produce – for examination by HRDC – all daily attendance logs,
picking cards and cancelled cheques. Turgeon stated that in her experience all
berry farms issue picking cards to workers. She requested production of a daily
record because she had been told by a member of the Gill family that a log was
the method used to keep track of hours worked by employees. Turgeon identified
the document entitled Daily Log – Exhibit R-1, tab 32 – as
a photocopy of the original she received – on November 30, 1998 -
which had been written on pages in an ordinary notebook containing un-numbered
blank pages that is commonly used by students. Turgeon did not have any
recollection of Harmit Kaur Gill referring to keeping track of
workers’ hours on scraps of paper at any point during the discussions at the
Gill residence. Turgeon interviewed Manjit Kaur Gill on
November 26, 1998 and her notes are in Exhibit R‑8,
tab 12. She does not have any specific recollection of that interview but
made notes contemporaneously. A Punjabi-speaking interpreter ‑ Jugender Dhillon –
was present throughout the interview. Turgeon explained her method is to write
the question first, then ask it and record the answer verbatim to the best of
her ability. It is not her practice to record sidebar conversations that are
not relevant. The purpose of the interview was to obtain additional information
regarding the alleged supervisory duties performed by Manjit Kaur Gill,
who had claimed UI benefits as a result of her employment with Gill Farms. At
the bottom of p. 58 of Turgeon’s notes, she asked Manjit to describe all
her duties as supervisor. Turgeon wrote down her answer in which Manjit
explained she phoned employees to advise the time to start work and where to
work as well as telling them when to take coffee and lunch breaks and checking
on their work; she also told workers where to get their buckets and where to
work next and provided drinks to them during the day. Turgeon stated she wanted
to ensure that all duties or tasks performed by Manjit were recorded because
that was the critical issue of the HRDC investigation. At p. 61, Turgeon
asked Manjit about duties performed by Harmit Kaur Gill at Gill Farms.
She recorded the explanation that Harmit punched picking cards, kept track of
the number of pounds picked and sold, kept track of the hours each employee
worked and made out cheques for the workers. Turgeon described the interview as
“low-key” and stated she had not been angry at any point during the interview
because that is something she would have recalled. Turgeon was referred to the
report by Blatchford – Exhibit R-17 – and stated she had
requested Blatchford and his firm to undertake that forensic examination of
various business records and other documentation pertaining to the operation of
Gill Farms. Turgeon arranged for a meeting to be held in the Langley HRDC
office on May 20, 1999. She requested the meeting in the form of a
letter – Exhibit R-23 – sent to Gill Farms wherein she
stated she wanted all 4 members of the Gill family to attend together with
their accountant in order to have the opportunity to explain certain
discrepancies between the information they had provided and the ROEs issued by
Gill Farms for the same time period. In paragraph 3 of said letter,
Turgeon set out – in bold typeface – a warning that information
provided is subject to verification and that there were penalties for making
false statements which could lead to sanctions pursuant to the provisions of
the EIA. She made notes – Exhibit R-1, tab 24 – of
said meeting which was attended by 10 people. The attempt at recording the
content of the discussions was unsuccessful as the reproduction was inaudible
to the point it was completely useless and it was destroyed. The small tape
recorder had been placed in the centre of a long table around which
participants were seated but it was not sufficiently sophisticated to perform
the required task. The only microphone was the one built into the machine.
Turgeon expressed disappointment at the useless recording because she had
intended it to be available for various purposes in the future including the
within proceedings. This was the only attempt at recording any interview
involving any of the appellants and/or intervenors in the within proceedings.
Turgeon acted as Chair and at the start of the meeting requested each person
to respond only to the question directed to them and to be patient
while she was writing down that response. On May 20, 1999,
Blatchford had not completed his audit. Turgeon recalled that on
some occasions, an answer to one of her questions would be
provided by one or other of the Gill family – in English –
but most of the questions and answers were interpreted by
Nav Chohan, an HRDC employee who was fluent in both English
and Punjabi. As she noted – bottom p. 30 – she advised the
parties that she would direct questions to a specific individual and wanted a
response from that person rather than from the spouse of said person. Turgeon
stated she is not proficient in shorthand but attempted to write down all
relevant matters discussed during the lengthy meeting. She did not record any
conversation or repetitions that were for the purpose of seeking clarification
of a date, number or other information. As noted on p. 231, Turgeon asked
Manjit Kaur Gill to describe what role she undertook with respect to
the farm operation. Manjit explained that the night before she would discuss
with Hakam where workers would be going and what they would be doing. She told
people where to work, checked their work, told them where to start in which
row, brought buckets of water, told them about breaks for coffee and/or lunch
and – if she had time – picked berries. Turgeon asked Manjit if she
performed any other duties and Manjit stated she put nets up before berry
season, put on hooks, weeding, more weeding after berry season was finished and
concluded by saying “[B]asically, we would take orders from Hakam”. Turgeon
stated it is unlikely she would have missed recording any duties as explained
by Manjit since she was writing them down as the interpreter was stating them
to her in English after having interpreted from Punjabi. At p. 233 of her
notes, Turgeon wrote about the discussion concerning the Daily Log. Prior to
that meeting, that document had been provided to Turgeon at the end of
November, 1998 and she wanted to inquire as to the manner in which it was
kept. She asked which had been produced first, the payroll records or the Daily
Log. The noted response was that the Daily Log was first and that it was
updated every day because Rajinder told Harmit to keep track of hours. Turgeon
noted the response – by Harmit – that the log was the actual record
of the hours people worked and that it was usually written every day although
the hours worked on some days may have been recorded in the log on another day
because she transferred the hours to the log whenever she had time. Harmit
stated she did not take the log into the field with her and when asked the
purpose of that document if she was also keeping a timesheet, stated “I kept
the daily log because it was separate. I did the log quickly, it takes more
time to do the employee sheets”. In response to a follow-up question, Harmit
confirmed the detail in the log is the same as in the employee records and that
there should not be any difference between the two. During further questioning
by Turgeon at said meeting, Harmit agreed she had not made any entry in the log
pertaining to Manjit Kaur Sidhu even though she had been employed
every day for a certain period and had been issued an ROE. Harmit explained
that she must have missed recording Sidhu’s hours for some reason but believed
the rest of the record was accurate. Counsel advised Turgeon that
Harmit Kaur Gill testified she had created the Daily Log specifically
to satisfy Turgeon’s demand for that sort of information. Turgeon stated that
was not correct and had requested that record because the Gill family had told
her they used the log as their source document to record hours worked by their
employees. Turgeon stated that in her mind there was no doubt whatsoever during
the meeting that the questions and answers were with regard to the specific
subject of that record entitled Daily Log that was subsequently provided to
HRDC. She stated there had been a reference – during the visit to Gill
Farms by Turgeon and Emery on November 3, 1998 – to Harmit
completing all daily logs and that is why she issued a formal demand – that
same day – to the intervenors – in their capacity as partners
operating Gill Farms – to produce that document. Counsel referred Turgeon
to pp. 241 and 242 of her notes concerning the discussion during the
meeting about the use of picking cards. Turgeon stated she and Emery had
interviewed several workers by that point and were aware they had been issued
picking cards. In Turgeon’s experience, including all the farm-site visits
carried out as a member of ACT, the normal practice is for pickers to receive
picking cards because that document constitutes the basis for payment on a
piecework basis. Usually, pickers have the cards pinned to a shirt or otherwise
carry them on their person. She considered the use of picking cards to record
piecework was a standard industry practice because berries are sold by the
pound and the growers cannot earn a profit if they paid workers an hourly rate
when their production during the season did not justify that amount. Turgeon – as
noted on p. 241 – asked Hakam Singh Gill why Gill Farms had
piece rate and hourly workers at the same time. She wrote down his reply that
all hourly workers used picking cards so Gill Farms could see the amount of
work they should be doing. Turgeon stated there was a difference of opinion
among members of the Gill family with respect to the use of picking cards and
Harmit Kaur Gill said everyone did not get a picking card and she had
not retained said cards. Turgeon sought clarification on this point and
recorded Harmit’s response that picking cards were used “sometimes when I
wanted to see what people were picking”. Harmit then went on to explain that it
was Manjit’s duty – in the morning – to hand out picking cards and
that pieceworkers would not work all day because they worked at other farms.
Turgeon asked “[D]o you have pick cards for any hourly workers?” and at the
bottom of p. 242 of her notes recorded Harmit’s response as “No”. Turgeon
noted ‑ top of p. 246 – that Rajinder alluded to paying
piecework rather than hourly but the accountant – Wadhawan – reminded
Rajinder that Gill Farms was paying hourly. Although she did not insert it in
her notes, Turgeon recalled Rajinder when explaining the piece rate payment
stated “if you pick more you make more” at which point Wadhawan “elbowed”
Rajinder and interjected to remind him workers were paid hourly. At the
meeting, Rajinder produced cash receipts for sales including those
made to buyers in the Kelowna area. He also indicated that there were
about $2,000 in roadside sales – in 1998 – and that Hamilton had purchased about 4,000 pounds of berries that
year. He confirmed that the financial statement of Gill Farms included all cash
sales. Turgeon stated she had shown the Gills the graph prepared by Blatchford
showing the average amount picked per day by hourly workers as well as the
pieceworkers and that some days a negative amount resulted from the
calculations applicable to the alleged hourly workers. Turgeon stated the cash
receipts and the information concerning additional sales were provided by
Rajinder immediately thereafter. With respect to the issue of interviews,
Turgeon stated she and/or Emery conducted all interviews in person and they
used a standard set of questions printed on a form. When interviewing a Gill
Farms worker, at the beginning he or she was asked if HRDC could take
a photograph and if consent was given, the photograph was taken for
purposes of the file. Counsel referred Turgeon to the document – Exhibit R-3,
tab 7 – produced during her interview with the appellant,
Gurdev Singh Gill. Turgeon stated she had no independent recollection
of that interview but had read over the notes prior to testifying. She
reiterated her usual practice was to ask the questions as printed and to record
the answer in her own handwriting. Jugender Dhillon acted as
interpreter. Turgeon identified the document – Exhibit R-7, tab 9 –
pertaining to her interview – on January 19, 1999 – with
Surinder K. Gill, the appellant in appeal 2001-2116(EI). Again,
Turgeon did not have any independent recollection of this interview.
Jugender Dhillon acted as interpreter. The interview was not recorded and
Turgeon did not recall Surinder K. Gill asking to reschedule the
interview because she was not feeling well but stated that was an event that
would have been recorded in her notes. Counsel referred Turgeon to a note – in
parentheses about two-thirds down page 53 – that the “claimant took a
break from interview. Has high blood pressure”. Turgeon stated she had no
recollection of that event but this type of notation was the sort ordinarily
made to record such an occurrence. Turgeon did not have any recollection of her
interview with Santosh Kaur Makkar on January 18, 1999 but
identified the interview form and her notes in Exhibit R-10, tab 8,
which indicated Jugender Dhillon was the English/Punjabi interpreter.
Turgeon stated she reviewed those notes and is satisfied they reflect
accurately the contents of that interview. As noted at the top of p. 47,
Turgeon asked Makkar whether she had paid cash back to the Gills in exchange
for weeks, i.e. an ROE. She recorded Makkar’s reply, as follows “No, but when I
worked at Penny’s, sometimes my son would work and I would get credit for the
hours”. Turgeon could not recall the sequence of questioning thereafter but
wrote down her questions and Makkar’s response in the space directly under the
heading “Additional questions and answers” on p. 47 of her notes. Turgeon
interviewed the appellant Jarnail Kaur Sidhu on January 19, 1999,
and identified the documentation ‑ Exhibit R-11, tab 7 –
relevant thereto. While Turgeon did not have any specific recollection of that
interview, she stated that if there had been an incident in which she is
alleged to have been angry and banging her hand or fist on the table she would
have recalled it. In hundred of interviews conducted each year, Turgeon stated
she does not conduct herself in that manner. She stated she can recall the
content of those discussions only by referring to her notes made at the time in
accordance with her usual practice. Turgeon prepared a sheet titled Entitlement
to EI Benefits – Exhibit R-24 – in which she set out regional
rates of unemployment and the corresponding number of insurable hours of
employment required to qualify for UI benefits in 1998. Turgeon explained
the qualifying period for benefits starts – generally – one year
prior to the start of an individual’s claim or from the week following their
last claim for benefits, whichever is shorter. The number of insurable hours
within the qualifying period is used to determine if a claimant has sufficient
insurable hours to establish a claim and also to determine the number of weeks
during which the benefits will be paid. In 1998 – barring exceptions
permitted by the regulations – first-time claimants required 910 insurable
hours of employment in order to qualify for UI benefits. Turgeon explained that
subsequent applicants are subject to variable entrance requirements which can
vary from about 420 hours to 909 hours during the relevant qualifying
period which is based on the number of “labour force attachment” hours in the
year prior to the qualifying period and that there is a language within the
regulations to define that attachment. In 1998, Vancouver, Surrey and Langley were included in region code 76 and
Abbotsford and Chiliwack were in the region identified as South Coastal B.C.
and assigned code 78. On page 2 of Exhibit R-24, in the
left-hand column Turgeon listed the appellants in the within proceedings and in
the middle she set out the number of hours needed by each named appellant in
order to qualify for UI benefits in 1998. In the third column, Turgeon set
out in detail – inside parentheses – the number of insurable hours
each named appellant had worked at employment other than at Gill Farms, if
applicable. By way of example, Himmat Singh Makkar needed 910 insurable
hours to become entitled to UI benefits but had worked 934.75 hours at
other employment apart from the hours he accumulated by working for Gill Farms.
However, Jarnail Kaur Sidhu required the same amount of
insurable hours – 910 – but did not have any other employment and had
to depend on her employment at Gill Farms to produce sufficient hours in
order to qualify for benefits after layoff. Turgeon prepared a sheet – Exhibit R-25 –
entitled Number of Insurable Hours Required for Non-Related Appellants to
Obtain EI Benefits – in which she set out the name of each appellant other than
Harmit Kaur Gill and Manjit Kaur Gill and in four separate
columns set out the number of insurable hours each appellant needed to qualify
for UI benefits, the number of insurable hours from other employment, the
number of hours worked according to the relevant ROE issued by Gill Farms and
the total insurable hours of employment. The table is as follows:
Number of Insurable Hours Requiered for
Non-Related Appellants to Obtain EI Benefits
|
Name of
Appellant
|
Number of
Insurable Hours Required to
Qualify for EI
|
Number of
Insurable hours from other employment
|
Number of Insurable Hours per R&H Gill Farms ROE
|
TOTAL
|
|
Gurdev Gill
|
560
|
378
|
324
|
702
|
|
Harbans Khatra
|
560
|
0
|
652
|
652
|
|
Surinder Kaur Gill
(Appeal 2115)
|
560
|
378
|
324
|
702
|
|
Surinder K. Gill
(Appeal 2116)
|
560
|
475.5
|
260
|
735.5
|
|
Himmat Makkar
|
910
|
934.75
|
160
|
1094.75
|
|
Santosh Makkar
|
910
|
571
|
421
|
992
|
|
Jarnail Sidhu
|
910
|
0
|
942
|
942
|
|
Gyan Jawanda
|
910
|
0
|
942
|
942
|
[89] Turgeon stated that except for
Himmat Singh Makkar, all appellants listed thereon required
employment from Gill Farms in order to acquire enough hours to qualify for EI
benefits. Turgeon prepared a document entitled R&H Gill Farm
Summary – Exhibit R-26 – which she sent to CCRA together with
her request for a ruling on insurability of certain named workers, including
the appellants. The second to last page thereof contained 9 questions she
posed and the last page listed several matters Turgeon considered to represent
anomalies. Turgeon stated she wanted to provide CCRA with the relevant evidence
as well as her view of the employment situations applicable to the related
workers – Manjit Kaur Gill and Harmit Kaur Gill –
as well as the group of non-related workers. She set forth her doubts about the
accuracy of records produced by Gill Farms and the various discrepancies
relating to the amount of money earned by the partnership from selling berries
and the substantial difference between that sum and the total amount deposited
to the business accounts operated by the intervenors in 1998. She pointed
out her concerns that the two wives – Harmit and Manjit – were
working as supervisors on a full-time basis during those parts of the season
when there were as few as 6 employees. The labour expended appeared to be
3 times as much as required by industry standards and it did not make sense
that any farmer would pay out $86,948 in wages to pick berries that sold
for only $61,902. Turgeon stated she listed in detail those matters she
felt required consideration by a Rulings Officer in the course of arriving at a
decision on insurability.
[90] Claire Turgeon was cross-examined by
Ronnie Gill. Turgeon issued her request for rulings on insurability on
July 9, 1998 at which point she had not received the final report
from Blatchford which stated revenue from blueberry sales was in the sum of $73,712
and not $61,902 as she had assumed in her summary. Turgeon agreed HRDC had
not conducted any investigation concerning the employment of
Santosh Kaur Makkar at Penny’s farm even though Makkar had
volunteered the information that – sometimes – her son worked there
and his hours were added to her own for purposes of the ROE. Ronnie Gill
referred Turgeon to the notes – Exhibit R-8, tab 14 – made
by Emery regarding the visit to Gill Farms on November 3, 1998.
Gill pointed out that Turgeon had written in her notes – tab 13 –
that “Harmit completes all the Daily Logs” but Emery noted that a formal demand
was made for “cancelled cheques, payroll records, time sheets” without
mentioning any logs. Turgeon stated she could not comment on those notes.
Ronnie Gill pointed to another discrepancy in the notes of Turgeon
compared with those of Emery concerning the number of workers required for
certain tasks from March to June. Turgeon noted that “the fertilizing and
clean-up was done by 2 or 3 people” and Emery wrote that Rajinder Singh Gill
said it took “three to four workers for this job but not full-time, they
are on call”. Turgeon stated the interview was conducted in an informal setting
and there were times when there was more than one conversation occurring.
Turgeon’s notes indicate she considered Rajinder had done most of the talking.
Ronnie Gill suggested Harmit Kaur Gill would have been more
knowledgeable about farm operations. Turgeon replied that it was somewhat of a
disorganized conversation in the sense she spoke with Rajinder while Emery was
talking with Harmit and Manjit. Turgeon recalled Rajinder left the kitchen area
to answer a telephone call and then returned to participate further in the
discussions until the meeting was terminated following the intervention of
Daljit Kaur Gill who objected to the line of questioning. Turgeon
estimated she and Emery were inside the Gill residence approximately
20 minutes to 30 minutes. Turgeon stated she understood
Manjit Kaur Gill to say that she did not pick berries. However, when
interviewing other workers, they mentioned Manjit had picked berries. Turgeon
stated she had not clarified – each time – whether that worker had
observed Manjit picking berries only occasionally for a brief period of time or
whether it seemed to be on a regular basis. Ronnie Gill referred Turgeon
to the interview – Exhibit R-11, tab 7, p. 40 – of
Jarnail Kaur Sidhu where she was asked to describe ‑ sequentially –
the different jobs performed during her employment at Gill Farms. Sidhu stated
her work progressed from hoeing, cutting off prickly parts of the blueberry
plants, to tightening the wires holding the net, putting hooks on the wires,
putting up the net ‑ all of which was done using ladders – and
then she picked berries, cut and/or broke off dry branches, took down the nets
and weeded until her layoff on September 26, 1998. Turgeon confirmed
that none of her interviews with any Gill Farms workers had been recorded on
tape or otherwise and the only record was contained in the printed forms and
her handwritten notes regarding answers provided to questions therein. Turgeon
confirmed that her sole attempt to record interviews was during the meeting on
May 20, 1999 at HRDC that was attended by a total of 10 people.
Turgeon agreed that in her summary – Exhibit R-26 – she considered
it odd that both Manjit and Harmit would have been required to work
as supervisors when there were only 6 employees. Ronnie Gill
referred Turgeon to Blatchford’s notes – Exhibit R-19 – of the
May 20th meeting when he listed several duties performed by Manjit apart
from supervising workers and had noted similar tasks which were performed by
Harmit. Ronnie Gill suggested it should have been clear to HRDC that both
workers had worked together with other employees both before and after the
berry picking portion of the season. Turgeon stated she had been a member of
ACT for 6 years and visited many farms in various areas of British Columbia
including orchards in the Okanagan and ginseng farms in the Kamloops region. She stated it was not usual for people to
work between 10 and 14 hours a day during peak season.
[91] Moira Emery was examined by Shawna Cruz.
She testified she had been employed as an ICO by HRDC for the past 8 years.
Earlier, she worked in other divisions including employment counselling and as
an assessor. As an ICO, she deals with various aspects of EI and SIN files that
land on her desk, including fraud. Often, she receives tips from outsiders and
works on files referred to her by frontline assessors or insurance agents
within HRDC who have been dealing with a particular claim. She had worked on
about a dozen farm files prior to being assigned the files pertaining to Gill
Farms and Manjit Kaur Gill. She does not speak Punjabi and her
practice is to contact an individual and to determine whether the assistance of
an interpreter is required. Upon receiving a file, she reviews the contents in
order to determine the issue and then decides on an appropriate course of
action which she pursues. Although Turgeon is now her supervisor, they were
both ICOs in 1998. Emery recalled the visit to Gill Farms on
November 3, 1998 and that she and Turgeon had not given the Gill
family any advance notice. Their intention was to learn about the farming
operation generally and to obtain information concerning the nature
of the duties performed by Manjit Kaur Gill. Emery prepared her notes – Exhibit R-8,
tab 14 – after her return to the office which were based on notes
made on a piece of paper during the interview in the Gill residence. Emery
stated her practice is to rewrite notes the same day and when writing them
– tab 14 – she does not include “every single comment” but
attempts to deal with details relevant to the issue of non-arm’s length
employment. To the best of her recollection, the meeting lasted between 40
and 45 minutes and Rajinder spoke more often than either Manjit or Harmit.
Emery stated she was explaining the rules surrounding insurability of
employment of a family member and questions to members of the Gill family were
directed to that issue. Emery stated a young female intervened in the
discussion and was very upset. As a result of that event, the meeting was
terminated in about 10 minutes. Emery stated she did not recall any
problem communicating ‑ in English – with any of the Gills
and the main concern was the nature of the work performed by Manjit for the
Gill brothers partnership. There was no reference to babysitting in any context
whatsoever. A formal demand on a special form – Requirement to Provide
Information – was issued for cancelled cheques, payroll records and time
sheets. There was no mention by any member of the Gill family of a Daily Log, a
document required by law to be kept by labour contractors and at that point
HRDC was not aware whether the Gills had hired some labour through contractors,
so the request for a Daily Log was made as a matter of routine. Emery stated
she was satisfied both Harmit and Manjit understood the questions posed by her
and Turgeon although they often deferred to Rajinder who provided the answers.
Emery stated she discovered later that Harmit had also been employed
by Gill Farms in 1998 and that led to examination
of the reasons why it would have been necessary to employ two
supervisors. Emery identified her notes – Exhibit R-5,
tab 12 – prepared in respect of an interview with
Harmit Kaur Gill on November 26, 1998. Harmit’s son – Kulwant –
acted as interpreter. The interview took place in a small room at the HRDC
Abbotsford office. The notes in their current form were created later, based on
notes made contemporaneously with answers provided by Harmit and were made
using short forms, abbreviations and symbols according to her own style. The
expanded version – tab 12 – is in a form capable of being easily
read and understood by individuals who peruse the files subsequently for their
own purposes. During the interview, Emery attempted to speak directly with
Harmit and to receive answers from her. She stated she relied on interpretation
– by Kulwant – only when difficulties in communication arose in the
course of their discussion. Emery had telephoned Harmit to arrange for the
interview. During the discussion, Emery noted – p. 57 –
Harmit stated “if she had free time she would pick berries”. Emery stated HRDC
decided to examine the employment of all claimants who had been employed by
Gill Farms in 1998. A chart was prepared to illustrate the first and last
day worked by each person who had been issued an ROE. HRDC obtained shipping
receipts from canneries/packers which included the dates berries were delivered
by Gill Farms. Emery stated she and Turgeon interviewed every worker alleged to
have been paid on an hourly basis and utilized Punjabi-speaking HRDC employees
as interpreters. The questions were prepared in advance and warnings were given
at the outset to the interviewee that he or she should not provide false
information as that could subject them to penalties. Emery stated there is no
legal authority vested in HRDC to compel an individual to attend an interview
or if they do attend, to require them to stay. She confirmed that no interviews
were taped and that the only attempt was a failure when a recorder was used at
the meeting in the HRDC boardroom in Langley on
May 20, 1999. Emery identified her notes – Exhibit R-4,
tab 8 – with respect to her interview with Harbans Kaur Khatra
on January 18, 1999. She recalled it lasted about 45 minutes but
agreed it could have been longer if the interpreter
– Paula Bassi – would have been required for each question and
answer. In her experience, some interviewees are nervous, confused and/or uncomfortable
and she attempts to ascertain the reason. Emery interviewed
Himmat Singh Makkar the same day and her notes are in
Exhibit R-9, tab 9. Paula Bassi was the interpreter. As noted on
p. 46, Emery asked about the rate of pay and recorded Makkar’s answer that
it was “by piece rate – 100 lb. = $30”. Emery stated the
example of the number of pounds multiplied by the applicable rate to result in
the sum of $30 was provided by Makkar. Emery stated her policy is to
paraphrase answers back to the interviewee in order to obtain confirmation of
the information the person intended to convey in the response. At the end of
the printed form, she used the space therein to record additional questions and
answers. She recorded Makkar’s answers as to start and end times of his work as
7:00 a.m. and 6:00 p.m., respectively. In Emery’s experience, start
and end times for farm workers vary and she notes the answer as provided
specific to each case. Emery made notes – Exhibit R-12, tab 7 –
of her interview with Gyan Kaur Jawanda on January 19, 1999.
Paula Bassi was the interpreter and explained to Jawanda – in
Punjabi – the purpose of the interview which was to discuss Jawanda’s
entitlement to EI benefits. The requirement to give truthful answers was
explained to Jawanda and she was asked – p. 46 – whether she
paid cash back to the Gills in exchange for an ROE. Emery noted Jawanda’s
response that she did not know what an ROE is or for what purpose it is used
but her daughter would. Emery also interviewed Surinder Kaur Gill – appeal 2001‑2115(EI) –
on January 18, 1999 and her notes are in Exhibit R-6,
tab 7. Emery noted – p. 43 – that Surinder Kaur Gill
was “not feeling well” but had not requested the interview be terminated. After
all the interviews had been conducted by Emery and/or Turgeon, the information
gathered to that point was reviewed and HRDC decided to retain the services of
a forensic accounting firm. Emery recalled the meeting in the Langley HRDC
office on May 20, 1999 and estimated it lasted about 4 hours.
Turgeon was in charge of the meeting and Emery considered the process to have
been formal in nature but cordial.
[92] Moira Emery was cross-examined by
Ronnie Gill who referred her to a letter – Exhibit R-23 –
dated May 4, 1999 sent on HRDC letterhead to Gill Farms. The last
sentence on page 1 of said letter stated that failure to attend the interview “may
result in penalties being imposed or a prosecution approved with the
information already on file”. Emery conceded that the letter was not typical
and that the recipients could have considered their attendance at said
interview was mandatory. With respect to the visit to the Gill residence on
November 3, 1998, Emery agreed she assumed both Manjit and Harmit
understood English sufficiently to comprehend the nature of the questions asked
by herself and/or Turgeon. She stated there was no mention in her notes of the
intervention by the young female member of the Gill family because she did not
consider it as a significant event. Emery could not explain the discrepancy between
her notes and those made by Turgeon of the same discussion during that visit as
they pertained to matters such as the correct number of workers at a particular
point or the amount of time required to install nets. When issuing a formal
demand for documents, Emery agreed there is a time limit imposed for production
but that deadline is often arrived at through negotiation with the recipients
of said notice.
[93] Moira Emery was re-examined by Shawna Cruz.
She agreed that she had noted – Exhibit R-8, tab 14, p. 66 –
that Manjit’s English was “a little limited”.
[94] In response to a question from the Bench,
Emery stated it is not uncommon for people – when served with a formal
demand to produce certain documents – to advise they do not have a Daily Log
or its equivalent and she would have expected the Gills to have done the same
if said Log did not already exist. She stated she included the specific
reference to a Daily Log in the demand at the request of Turgeon.
[95] Harby Rai was examined by Shawna Cruz.
Rai testified she is a CPP/EI Rulings Officer and has been employed by Canada
Revenue Agency and its predecessors since March, 1997. Beginning as a
clerk, she became a Rulings Officer in 1992. She was born in India and came to Canada – at
age 9 – and went to school thereafter until graduating from high
school. Prior to working on the Gill files, Rai had worked on about 15 different
farm files where she was required to issue a ruling concerning the employment
of certain individuals and to establish the amount of hours worked, the
insurable earnings and duration of the employment. Rai stated she was fluent in
Punjabi because that was the language of the family at home and she married a
man from India who spoke Punjabi. She stated that she
spoke Punjabi to her family and her in-laws on a regular basis and when
travelling in Punjab in 1993, 1995 and 2003 – for periods
of 3 or 4 weeks on each occasion – did not encounter any significant
barriers in communicating in Punjabi to friends, relatives or when touring
around Punjab. Rai stated that her employment required her to speak Punjabi on
a regular basis since 1999 and she was familiar with the polite manner of
speaking in which one uses certain words of respect. However, she cannot read nor
write Punjabi as she has lost that skill over the years and has not taken any
classes to retain that ability since arriving in Canada.
From mid-1999 to 2001, Rai was a member of ACT and handled several farm
files in the context of her position as Rulings Officer. The requests for
rulings arrive on her desk from employers, employees, HRDC and through an
internal mechanism at CRA where she receives referrals of certain files from
trust examiners or auditors. In the usual course, Rai contacts both the worker
and the employer and reviews documents received from HRDC. In the within cases,
she reviewed payroll records, ROEs, Rulings Request Forms, applications for UI
benefits, cancelled cheques, bank statements, a forensic audit report and
copies of HRDC interview notes, all of which she received in July, 1999.
At that point, the issue with which she was concerned was the circumstances of
the employment with respect to the wives of the brothers operating Gill Farms
and whether the insurable hours of the non-related workers had been inflated on
the various ROEs. In August, 1999, as a member of ACT, she visited Gill Farms
and spoke with Hakam Singh Gill. In carrying out her duties as
Rulings Officer, she conducted interviews by telephone except for the one with
Gyan Kaur Jawanda which was carried out at the appellant’s residence.
Rai stated that when interviewing workers, she inquires about payroll periods,
duties, identities of co-workers, start and finish times of employment,
working hours, method of transportation to and from work. Counsel referred Rai
to typewritten notes ‑ Exhibit R-7, tab 5 – pertaining
to Surinder K. Gill (appeal 2001-2116(EI)). Rai stated her practice
is to speak to workers – in Punjabi – and to translate the answers from Punjabi
to English when making notes of the conversation. Later, she types her notes
into a computer and prints them out. With respect to the interview with
Surinder K. Gill on July 27, 1999, Rai estimated it took
between 30 to 45 minutes to complete. Initially, the worker denied
having used picking cards while employed by Gill Farms but Rai reminded her
that she had told HRDC a card was used every day and the worker then agreed she
had been given picking cards and her start and finish times had been marked on
said card together with the weight of berries picked. Rai stated
Surinder K. Gill had received vacation pay of 7.6% even though
she had worked only from July 26 to September 12, 1998, a
relatively short period in comparison with other workers who had received only
4% holiday pay. Rai was referred to her typed notes – Exhibit R-4,
tab 4 – pertaining to her telephone interview with
Harbans Kaur Khatra. The interview was conducted in Punjabi and Rai
noted Khatra explained she had been taken to work by Manjit Kaur Gill
and had been paid $8 per hour rather than by piece rate for her work. Rai
stated Khatra stated she had not used a picking card and did not know if other
workers used them. Rai stated the questions were not complicated and were
concerned with basic details of Khatra’s employment. Rai stated that in order
to issue her ruling, she had to rely on the relevant legislation and
regulations which limited insurable hours to 35 per week under
the circumstances applicable to Khatra and other non-related employees of Gill
Farms and she multiplied the resulting total by the hourly rate of $7.50
in order to establish the amount of insurable earnings. Rai visited
Gyan Kaur Jawanda at her home on July 30, 1999, after
Jawanda had returned home from work. Rai’s typed notes pertaining to this
interview are in Exhibit R-12, tab 3. The interview had been
scheduled earlier for the 28th but had been cancelled by Jawanda’s
daughter. Rai stated Jawanda’s daughter was present throughout the entire
interview – on July 30 – which lasted about one hour. Rai stated
she had been offered juice and the interview was carried out in the living room
of the basement suite and was calm in tone. Jawanda’s daughter
– Baljit – told her mother “Mom, just be honest”. Rai stated she
considered the answers provided by this appellant to have been credible but
neglected to have her sign the interview notes and phoned Baljit to advise her
of this omission. On August 12, 1999, Rai called Baljit and was
advised Gyan Kaur Jawanda was at work but wanted to pass on the
information that she had been dispatched by Gill Farms to a farm in Langley where she had picked strawberries for one week. On
August 16, the interview notes were signed at the bottom by Jawanda and
Baljit Kaur Jawanda acted as interpreter. Rai conducted a telephone
interview with Himmat Singh Makkar on August 16, 1999. Her typed
notes are in Exhibit R-9, tab 4. She spoke to him in Punjabi and noted
he stated he and his wife – Santosh Kaur Makkar – had been
paid $8 per hour and worked 7 days per week unless the weather was bad.
Rai could not recall whether she had pointed out to Himmat Singh Makkar the
discrepancy between that statement and the payroll record which indicated he
had worked only 5 days per week. Rai referred to her typed notes – Exhibit R-10,
tab 5 – regarding her telephone interview with the appellant
Santosh Kaur Makkar which she conducted after concluding her
conversation with Himmat Singh Makkar. Rai stated she spoke – in
Punjabi – to Santosh Kaur Makkar for about 20 minutes and
was informed she and her husband had both worked as pickers on a raspberry farm
and went to work for Gill Farms after they had been laid off. Rai noted
Santosh Kaur Makkar said she was paid $7.50 per hour and had not
used picking cards. On July 27, 1999, Rai spoke – in
Punjabi – to Jarnail Kaur Sidhu on the telephone and typed notes – Exhibit R-11,
tab 3 – of that conversation. Rai noted the worker stated she could
not remember when she performed different activities at Gill Farms and did not
remember in which months the work was done. Sidhu also stated she had not used
a picking card because she was paid an hourly rate, the amount of which she
could not recall. Rai estimated the conversation occupied approximately
45 minutes and – initially – Sidhu had been willing merely to
confirm information she had previously provided to HRDC. However, when Rai
asked her to confirm she had used picking cards, Sidhu denied having made
such a statement to HRDC because she had not used those cards. Rai
interviewed – in Punjabi, by telephone – Gurdev Singh Gill
on August 19, 1999. He explained to Rai that he worked with his wife – Surinder Kaur Gill
(appeal 2002–2115(EI)) – at Gill Farms and that they were usually
picked up by Manjit Kaur Gill. Rai noted Gurdev Singh Gill said
“first, they put up the nets …” and that he went on to explain some old
poles had to be replaced and workers had to get up on the ladder to unroll the
nets. Rai noted that on another occasion during their conversation, Gill said
he picked berries after the nets were up and advised her the nets were
installed to prevent birds from eating the berries. Overall, Rai stated she
asked Gill 3 times about putting up the nets and each time he responded by
telling her they put up the nets before picking berries. Rai stated the reason
she repeated the question about the timing of the net installation was that
Gill only started working for Gill Farms on August 2, 1998, and by
that date, the nets had been in place for at least one month. He also said he
was paid by the hour and did not use picking cards. He confirmed that he had
received the same amount of holiday pay – 7.6% – as his wife. Rai
prepared a summary – Exhibit R-1, tab 22 – for each worker
and p. 159 deals with Manjit Kaur Gill and Harmit Kaur Gill and their
respective roles in the overall operation of Gill Farms. Rai stated she
concluded the payroll records of Gill Farms were unreliable, particularly in
view of the reports of Sweeney and Blatchford and information she had reviewed
with respect to normal wage expenses according to industry standards. She
concluded the hours of employment for the non-related workers had been inflated
except for those attributable to Gyan Kaur Jawanda. In Rai’s opinion,
the allocation of 38% of total person-hours to tasks other than picking
during that 1998 season was not reasonable. Rai issued a ruling to
Manjit Kaur Gill – Exhibit R-8, tab 4 – and
to Harmit Kaur Gill ‑ Exhibit R-5, tab 4 –
in which she found their employment with Gill Farms not to have been insurable
employment for the relevant periods applicable to each. In preparing the Rulings
Report in respect of Manjit Kaur Gill, Rai assumed that
Rajinder Singh Gill had worked full time on the farm in 1998.
Rai stated there were several discrepancies in terms of work allegedly
performed such as the weighing of berries by Harmit. On the whole of the
information before her, Rai concluded there was not enough work to employ
either Manjit or Harmit for the relevant periods and they would not have
been so employed had they not been related to the partners who operated Gill
Farms. Rai stated she sent out a questionnaire – Exhibit R-1,
tab 21 – to the Gill brothers and requested it be completed with
respect to each worker. The information was supplied by Lucky Gill
– LRS Solutions – in the form of a letter – Exhibit R-1,
tab 20 – dated September 30, 1999.
[96] Harby Rai was cross-examined by
Ronnie Gill. Gill referred Rai to the LRS letter at tab 20, and to
the duties performed by Harmit Kaur Gill, commencing at p. 112.
At p. 117, for the period of July, 1998, there is a statement that one
of the responsibilities was the “weighing all the Blueberries picked to track
production”. Gill pointed out to Rai that this same description was included in
the list of duties performed by Harmit in the subsequent months of August and
September and that this letter had been directed to her attention by
Lucky Gill, the author. Gill referred Rai to the notes – Exhibit R-8,
tab 12 – made by Turgeon of her interview with Manjit Kaur Gill – on
November 26, 1998 – where – at p. 59 – Manjit in
response to a direct question from Turgeon about who weighed the berries – had
stated “… my sister does that, Harmit”. Rai accepted that information was
correct and stated it had not played any significant part in the formation of
her decision to issue the ruling denying insurability. Gill suggested that
since Hakam Singh Gill had a full-time job in 1998, it would not
seem reasonable to accept that he had been supervising the daily work of
Gyan Kaur Jawanda. Rai stated she knew Hakam had regular off-farm
employment but – overall – had accepted Jawanda’s description of her
employment. Gill referred Rai to notes – Exhibit R-12, tab 3,
p. 28 – of her face-to-face conversation with Jawanda – on
July 30, 1999 – and to Jawanda’s comment that she had “picked
blueberries by herself for the first 20 days”. Gill referred Rai to
Blatchford’s report – Exhibit R-1, tab 23, p. 211 – and to
the table showing the total pounds of blueberries picked on July 7, 1998
was 1,686. Rai stated she merely noted what Jawanda was saying during the
interview and did not challenge her with respect to that statement which she
considered to be bizarre. Rai stated that until completing Grade 11, she
had picked berries in the Fraser Valley during the summer seasons and recalled
being picked up at 5:00 a.m. and not returning home until nearly
10:00 p.m. Even while in elementary school, she worked picking berries
which was remunerated – always – on a piece rate basis while other work
– such as weeding – was paid at an hourly rate. During her visit to
Gill Farms – in August, 1999 – Rai had not checked to see if
workers were using picking cards. During that visit, Turgeon spoke with Hakam Singh Gill
about his UI claim since he had been laid off – recently – from the
mill. Ronnie Gill suggested to Rai that visit would have presented an
opportunity to gather valuable information concerning the operation of Gill
Farms during peak berry season. Rai replied that although she had been a member
of ACT since June, 1999, she had not yet been assigned to any site
inspections and had only attended at Gill Farms on one previous occasion in
order to determine the validity of employment of an elderly – age 84 –
worker. Rai stated the main purpose behind the formation of ACT was to deal
with labour contractors and because Gill Farms hired its own workers, it did
not occur to her to observe the farming operation or to speak with workers. As
a Rulings Officer since 1992, even after being assigned to ACT, Rai stated
she continued to work on rulings involving appellants in the within
proceedings. Ronnie Gill referred Rai to the notes ‑ Exhibit R-3,
tab 7 – made by Turgeon during her interview with
Gurdev Singh Gill – January 18, 1999 – and to
p. 36 where Turgeon noted Gill said he “picked blueberries, rolled up the
tarps to take them down, weeding”. Gill suggested that description was in
response to a question about the “sequential order” of the different jobs he
did for Gill Farms in 1998 and it was opposite to the conclusion Rai had
drawn from his comments during the telephone interview on August 19, 1999.
Rai reiterated she had repeated her inquiry about the subject of the nets
because the timing suggested by the answers of Gurdev Singh Gill
seemed to be wrong but he repeated it at least 3 times. Rai stated her
preference is to visit elderly Indo-Canadian workers in their own homes rather
than by telephone. In her experience, people are happy to see her and to speak
Punjabi during the conversation. Rai agreed there are various dialects spoken
by people from Punjab but has not encountered difficulties that could not be
surmounted by continuing the conversation and noted the context of the
conversation is quite simple because it pertains to repetitive farm work. With
respect to the two rates – 4% and 7.6% – of vacation pay, Rai stated
she was unsure of the application of ESB labour rules in this regard but
considered it odd that only a few workers had received the higher rate. Gill
referred Rai to her conclusion – Exhibit R-1, tab 22, p. 163 –
that “the total labour hours claimed by the Gills are triple” compared to normal
industry standards of 500-700 hours per acre for a cost of up to
$6,400 per acre. Gill pointed out Gill Farms farmed 8 acres and even
applying those so-called standard rates, total labour costs would have
been $51,000 and labour costs of Gill Farms – exclusive of wages paid
to the wives – were $72,000 in 1998.
[97] Amandeep Brar was examined by Shawna Cruz.
Brar testified she is the Customer Service Representative (CSR) at the Townline
branch of Scotiabank in Abbotsford. Pursuant to the subpoena, Brar brought
statements regarding the account of Surinder K. Gill (appeal 2002-2115(EI)).
As a CSR, Brar deals daily with the deposits and withdrawals of customers and
other matters concerning account activity. In 1998, Surinder K. Gill
had two accounts with Scotiabank, one at Clearbrook and Central branch and the
other at Townline Road. Brar was referred to the Affidavit –
Exhibit R-27 – of Fern Snow, Accounting Officer,
Bank of Nova Scotia, and to the attached bank statement. Brar
was shown the middle photocopy of a cheque – Exhibit R-7, tab 10,
p. 56 – and the data centre stamp indicating the account number. The date
stamped was October 5, 1998. Brar stated the actual deposit could
have been made two days earlier. According to the statement – 3 pages
from back of attachment to said affidavit – there was a deposit of $1,200.51
to the account on October 3, 1998. The cheque payable to
Surinder Kaur Gill – Exhibit R-7, tab 10, p. 55 –
was dated September 30, 1998 and was in the sum of $1,363.51.
Brar stated the difference may have been due to the customer receiving that
amount – in cash – from the teller and that some tellers did not
adhere to the practice of noting the denominations of the bills on the reverse of
the cheque. Brar stated if the payee takes cash for the whole amount of the
cheque, there will be no record of that transaction reflected in the account
statement. On the statement – Exhibit R-27, 4th page from the
back – the entry indicates a withdrawal of $800 on
September 30, 1998.
[98] Amandeep Brar was cross-examined by
Ronnie Gill. Brar stated she knew Surinder K. Gill personally.
Brar confirmed the entries on page 1 of Exhibit R-27 showing a
withdrawal of $1,000 on January 17, 1998 followed by other
withdrawals of $120 and $200 on January 21 and January 24,
respectively. The March statement containing transactions during the
previous month showed a withdrawal of $700 on February 5 and Brar
stated the withdrawal in the sum of $281.31 could have been in cash or
– more likely – to pay a bill since there was no method
– in 1998 – to record the purpose of that transaction. The April
statement on the account showed a withdrawal of $200 on March 7 and
another on March 13 in the sum of $250. On May 30, there was an
entry – NBW – indicating a withdrawal in the sum of $470.
Earlier, on May 27, a similar notation – NBW – had been made beside
the withdrawal amount of $200. Brar confirmed there had been other
withdrawals in June – as well as a deposit of $422.11 on the 26th –
and the December statement showed a withdrawal of $1,000 on
November 27 and another in the sum of $300 on November 30.
[99] Amandeep Brar was re-examined by Shawna Cruz.
Brar stated the entry ‑ NBW – means No Book Withdrawal and
signifies the transaction was conducted ‑ in person –
within the branch at a teller’s wicket. The code # 201 was assigned to the
automatic teller machine inside the branch but it did not permit a passbook to
be updated by inserting it into a slot. Brar stated the notation “W/D” could
indicate a withdrawal of cash or that the sum represented a payment of a bill.
A transfer to a Visa account would show up on the statement as a transfer
rather than a withdrawal. An Interac transaction is recorded with PSP to
signify a Point of Sale Purchase using a debit machine. Brar stated the NBW
notation always indicates a withdrawal transaction was conducted either by a
teller or a bank machine inside the branch. The codes for tellers used a digit
ending in 00 while the machine code was 201. Brar confirmed the
account statement indicated several withdrawals of small amounts ‑ between $20
and $150 – in April, 1998 as well as similar amounts withdrawn
in June and July. However, on August 6, there was a withdrawal
in the sum of $4,500 followed by a withdrawal (NBW) of $800 on
September 30. Brar stated the bank machine would only accept the sum
of $200 as a maximum withdrawal and the daily withdrawal limit would
require 4 separate withdrawals in order to attain the maximum amount of $800.
[100] In relation to matters arising from
re-examination, Ronnie Gill referred Brar to the page marked “1998-08-03”
in Exhibit R-27 and to the entry dated 0729NBD showing a deposit in
the sum of $6,796.13. Brar stated if a NBW entry has a code – in
the third column of the statement extract – other than 201, it means
a customer dealt with a teller. She confirmed that if any withdrawal is
labelled NBW, it signifies the transaction involved cash whether received from
a teller or a machine.
[101] Jugender Dhillon was examined by
Amy Francis. She testified she is a Service Delivery Representative for
HRSDC – formerly HRDC – and has been so employed for 12 years.
In the course of her duties, she acts as an interpreter from Punjabi to English
and English to Punjabi. She is requested to act in that capacity a few times
each year. Dhillon stated her first language was Punjabi even though she was
born in England. The household language was Punjabi and
she left home at age 21. She married a man who speaks both Punjabi and
English. Dhillon stated she spoke Punjabi when conversing with her in-laws
who lived with them for more than 9 years. While living in England, Dhillon attended classes to learn how to read and
write in Punjabi and she continued to read but has lost much of her
ability to write well. However, she speaks Punjabi daily and considers
herself fluent. She has not encountered any serious difficulties
understanding any Punjabi speaker and if there was a problem arising
during an interpretation, she would rephrase the question until confident
the person understood the subject matter of the query. Dhillon was
the interpreter during the interviews of Surinder K. Gill – appeal
2002-2116(EI) – Manjit K. Gill, Jarnail K. Sidhu,
Gurdev Singh Gill and Santosh K. Makkar.
[102] Jugender Dhillon was cross-examined by
Ronnie Gill. Dhillon stated she worked about 27 hours a week and
spoke English to her two children, aged 16 and 12 and to her friends
while living in England. Dhillon did not have a specific
recollection of her interview with Gurdev Singh Gill but stated her
policy is to interpret as closely as possible on a verbatim basis. She stated
her parents were born in Punjab and has not encountered any problems
dealing with dialects in the course of her interpretation duties which involved
discussions concerning details and conditions of employment using simple
language.
[103] Paula Bassi was examined by Amy Francis.
She is employed by HRSDC as a Service Delivery Representative. She started
working as a data entry clerk and moved into investigations until assuming her
current position in 1998. She interpreted during several interviews
conducted by Turgeon and/or Emery and estimated she is called upon to handle
Punjabi/English interpretation two or three times per month. She recalled
interpreting during interviews with farm workers and that the questions were
usually the same and the answers provided were similar in terms of vocabulary.
Her parents spoke Punjabi at home and she married a man whose first language
was Punjabi and his Punjabi-speaking parents lived with them. She stated she
can read Punjabi with some difficulty and can write to some extent but it is
not easy to do so. She always speaks Punjabi to friends and extended family on
a regular basis and still continues to use that language in the course of her
employment although not as frequently as in 1998. She interpreted during
the interviews of Surinder Kaur Gill – appeal 2002-2115(EI) –
Gyan K. Jawanda, Harbans K. Khatra and Himmat S. Makkar.
[104] Paula Bassi was cross-examined by
Ronnie Gill. Bassi stated she could not recall any occasion when any HRDC
interviewer had advised the interviewee that he or she was free to leave at any
time. Bassi stated that when she arrived to assume the interpretation duties, the
interviewer and the claimant were already in the room and sometimes a friend or
relative is present but she cannot recall whether the person fulfilling this
role supplies any information during the interview process.
[105] Bernie Keays was examined by Amy Francis.
He testified he is employed as a Litigation Officer by CRA. He has been
employed by CRA and its predecessors since 1981, beginning as a
Collections Officer, a position he held for 10 years. In 1991, he
took the position of Appeals Officer for CPP/EI and continued until assuming
his current position in 2002. As an Appeals Officer, he determined
insurability and pensionability of workers. Keays estimated 50% of his
workload over the past few years involved farm workers and the matters in
question concerned the validity of ROEs as they purported to state certain
weeks – later, hours – of employment and the amount of pay earned.
Keays stated most determinations – later, decisions – involve only
one or two workers but he has handled files concerning 110 workers and
several other cases where 20 or more workers were employed. In 2002,
12 files involving the Gill Farms partnership and its workers landed on
his desk. Due to processing a request for information under the relevant
statute, there was a delay in issuing the decisions. In the within proceedings,
Keays followed the usual course of reviewing all documents transmitted by HRDC
as part of the request for a ruling on insurability. Even before the files had
been assigned to Keays, letters – enclosing a Questionnaire – had
been sent out by CCRA staff to Gill Farms – as the employer – and to
all the employees. Keays was referred to the Index of Exhibit R-1 wherein
50 items were listed and described. He stated he reviewed all of that
material in the course of formulating his report and issuing his recommendation
for determination on each appeal. Keays stated he reviewed the documents in
Exhibit R-3, tabs 1-13, inclusive, pertaining to
Gurdev Singh Gill and reviewed all documents in Exhibit R-4
pertaining to Harbans Kaur Khatra, except for the document at
tab 14. He reviewed all documents in the binder
– Exhibit R-5 – relating to the appeal of Harmit Kaur Gill. He
reviewed all documents – except the one at tab 13 – in the
binder – Exhibit R-6 – relevant to the appeal of
Surinder Kaur Gill (2001-2115(EI)). In Exhibit R-7 – pertaining
to the appeal of Surinder K. Gill (2001-2116(EI)) – he read all
documents except the ones at tabs 16 and 17. He perused all documents
in Exhibit R-8, involving the appeal of Manjit Kaur Gill. With
respect to the binder ‑ Exhibit R-9 – concerning the
appeal of Himmat Singh Makkar, Keays read all the material therein
except for the documents at tabs 1 and 15. He examined the material within
Exhibit R-10 – pertaining to Santosh Kaur Makkar – except
for the documents at tabs 1 and 14. He read all documents in
Exhibit R-11 – regarding Jarnail Kaur Sidhu – except
for the one at tab 16. With the exception of the document at tab 15
in Exhibit R-12, Keays reviewed all documents relating to Gyan Kaur Jawanda.
Keays identified his Report On a Determination or Appeal (Report) in
Exhibit R-1, tab 3 (Master report). The Master Report was dated
January 10, 2001 and was delivered to John Morgan – Team
Leader – who signed the decision letters the next day and sent one to each
person affected by his decision. Keays stated Morgan had been authorized by
Loretta Bemister, Assistant Director of Appeals to issue decision letters
pertaining to insurability. Keays stated the recommendation contained in a Report
is usually accepted by a Team Leader unless there is some compelling reason to
disagree. Usually, letters will be issued the same day to all parties
affected by the decision. Keays explained some portions of his 17-page Master
Report had been blacked out to protect certain persons who had provided
information about working conditions and practices within the agricultural
industry on the basis their names would not be disclosed. In preparing the
within Report, Keays stated he conducted a thorough review of all information
on file and in order to clarify certain issues arising therefrom, read all the
Questionnaires and considered other information gathered from other sources
including telephone interviews. In his view, it is difficult to conduct
telephone interviews because he does not speak Punjabi and personal interviews
are not practical because the location of West Pender Street Vancouver CCRA
office is a considerable distance from the Abbotsford area. Keays stated that
in many instances he speaks with a lawyer, agent or other representative of
appellants, which include – on occasion – the employer as well as
workers. In arriving at his recommendation, he relies on experts within the
farming industry to provide certain information. Keays was referred to the
Questionnaire – Exhibit R-3, tab 4 – pertaining to
Gurdev Singh Gill which was based on a template used in a previous
case involving more than 100 workers employed by a labour contractor. The
two-page response was sent to Keays by Ronnie Gill. Keays explained the
purpose of the Questionnaire may seem somewhat redundant since many of the same
questions previously asked by HRDC interviewers and/or the Rulings Officer are
repeated. In his view, the 30-day period during which individuals are requested
to complete and return a Questionnaire provides an opportunity to reflect
on the details to be provided without any sense of urgency or pressure and
should produce reliable information concerning the employment situation. Keays
recalled he spoke with Ronnie Gill on several occasions concerning
the files of workers represented by her and also obtained information
from her – on behalf of the intervenors – regarding the operation
of Gill Farms. Keays stated he was aware of the 16-page letter – Exhibit R-1,
tab 16 – sent to J. Williams, Appeals Division, West Pender Street, Vancouver. Keays stated he assumed the
letter – dated February 29, 2000 – had been authored by
Ronnie Gill of LRS Solutions. LRS also sent a letter – dated
March 14, 2000 – to J. Williams, in which Lucky Gill-Chatta
responded to certain aspects of Rai’s ruling report – generally – and
as it pertained to Gyan Kaur Jawanda. Keays identified his
handwritten notes – Exhibit R-1, tab 13 – in which he
recorded the substance of his conversation with Ronnie Gill on
June 23, 2000. He noted it was “a very long conversation” and he
ascertained she was not related to the family operating Gill Farms although
she had known them for 20 years. He sought to clarify her
status as he did not know whether she was a lawyer, accountant or other agent.
Keays was referred to a set of notes – Exhibit R-1, tab 6 –
regarding a telephone conversation with Ronnie Gill on
November 2, 2000. Keays stated that at this point he was nearing the
end of his review of the material relative to the appeals from the rulings. Keays
stated he spoke to Ronnie Gill about the gross revenue of Gill Farms – in 1998
and earlier years – because it did not seem to make economic sense to
continue operating the blueberry farm in the face of annual losses. Keays noted
Ronnie Gill spoke of the “farmers’ plight” including the difficulty in finding
workers and efforts required to retain a workforce until the end of the season.
Keays noted Ronnie Gill’s explanation that berry farmers were not
necessarily good business people in the sense they often felt an obligation to
pay workers in order to retain their services even if there were some brief
periods when there was no work to be done. Gill informed Keays that in her
opinion the workers want to know they will have employment – with the same
employer – for the entire season instead of having to look elsewhere every
few weeks. Keays stated that as a result of the conversation with Ronnie Gill,
he formed the impression that the policy of Gill Farms was that people
were employed – in 1998 – on the basis they would be kept on
long enough to qualify for UI benefits following layoff and that this
arrangement would be pursued even though it did not make economic sense because
of ensuing disproportionate labour costs. Keays stated he reviewed the letter ‑ Exhibit R-1,
tab 5 – dated November 10, 2000, sent to him by
Ronnie Gill on LRS letterhead. The letter was in the form of an interview
of Hakam Singh Gill as conducted by Ronnie Gill and dealt with
farming losses over the course of many years as well as business practices
followed by Gill Farms with respect to hiring and retaining a workforce. Keays
stated he concluded the nature of the employment relationship between those
workers not related by blood, marriage, adoption, etc. – to
Hakam Singh Gill and Rajinder Singh Gill, the partners
operating Gill Farms – was such that it constituted – as a matter of
fact – a non-arm’s length relationship within the meaning of the Income
Tax Act which is applicable for purposes of determining insurability
pursuant to relevant provisions of the EIA. In his Master Report, Keays
listed those persons contacted in an effort to obtain as much relevant
information as possible concerning the operation of a blueberry farm. LRS had
provided details of time estimates for a variety of tasks as part of the
submission – Exhibit R-1, tab 19 – dated
September 30, 1999. Keays stated the information contained in the
letter from LRS was the basis for a considerable portion of the conversation
between him and Ronnie Gill on November 2. Keays made notes – tab 8
of same exhibit – of his conversation with Jim Walton – an
official at ESB – who was a member of ACT. Keays inquired about the method
of payment for berry pickers within the industry and was advised the usual
method is to pay according to a piece rate. Walton added that it was customary
for labour contractors to assert the position that the pay was based on an
hourly rate but in Walton’s opinion, that was not true. Keays stated he was
advised by Walton that the normal working day for pickers during berry season
was 10-12 hours and a 7 or 8-hour day would be uncommon. In
Walton’s experience, a prudent farmer could not guarantee work for the entire
season. Keays was informed that an employer – in 1998 – could
elect to pay 7.6% holiday pay instead of 4% of the total wage because the
higher percentage encompassed work performed on statutory holidays. Overtime
pay on supplemental hours applied only if someone worked more than 120 hours
in a two-week period. Keays stated he spoke with James Blatchford
– forensic accountant – and made notes – Exhibit R-1, tab 9
– of that conversation. He ascertained that Blatchford considered the
payroll records of Gill Farms to be unreliable. Keays made notes – Exhibit R-1,
tab 10 – of his conversation with Karen Gill, a Director of the
British Columbia Blueberry Council (Council). He inquired about the
installation of nets which he learned was usually undertaken in May or June. He
was advised that nets are not usually mended while they are in place and that
no grower does any pruning in September because the plants are not dormant. He
was advised that some small farms did hoeing by hand and that it would take 8
to 10 workers about 10 days to complete that task. Karen Gill
advised Keays 1998 was an early season and it was not reasonable for 10 workers
to have worked on water pipes nor did it seem usual for 2 people to be
involved with spraying for 7 days. Keays was informed that Karen Gill was
closely involved with the operation of a 25-acre blueberry farm and was well
acquainted with that industry. With regard to washing buckets at the end of the
season, Karen Gill advised Keays it should take one person one day.
Keays stated he also spoke to Mark Sweeney
– agricultural expert – and made notes – Exhibit R-1, tab 11 –
of that conversation. Keays prepared typed questions in advance and wrote
Sweeney’s answers by hand in the space provided. Keays noted Sweeney’s opinion
that if bark mulch is used, the amount of time spent on hoeing by hand would be
minimal and it would never take 560 hours to do that sort of work as had
been suggested by Ronnie Gill in the February 29, 2000 letter at
tab 16, p. 94. Sweeney also told Keays that 128 hours devoted to
replanting was excessive and that it was not reasonable for a grower to keep
workers employed where there were only a few berries to pick nor did growers
guarantee workers steady work from the beginning of the season to the end. With
respect to yields, Sweeney advised Keays that 16,000 pounds per acre would
represent a “best-case scenario” in 1998 although yield projections are
updated from time to time. Sweeney advised Keays that nets are erected in
mid-June and subsequently provided Keays with information – Exhibit R-1, tab 12 –
on that subject including estimates of labour. In Sweeney’s opinion, it would
not require 1,520 hours of labour in June to install nets on an 8-acre
farm. Keays was advised further that it was not reasonable for 3 or 4 workers
to continue to be employed after the berry season had finished and that the
buckets could be washed in a few hours. As for procedures undertaken for pest
and disease control, Sweeney estimated it would take one person one day. In
terms of the methods apparently used by Gill Farms in this respect, Sweeney
considered them to have been completely uneconomic. Since there is no spraying
done during picking season, Sweeney considered 20-30 hours per season to
be the maximum time required and definitely not 178 hours as suggested by
Ronnie Gill in her letter at tab 16. Sweeney informed Keays it would
take 2 minutes to plant each new plant and would not require
128 hours as stated by Ronnie Gill, particularly since the financial
statement of Gill Farms indicted only $610 was expended on 200 new plants
which would require only 3.5 hours to plant. Keays made notes
– Exhibit R-28, Exhibit R-29 and Exhibit R-30 – of
other conversations including those with a representative of Kahlon and
other growers. Keays stated he was advised that most growers did not wash their
own lugs and that one grower – operating a large farm – spent only
two or three days weeding. Another grower advised Keays that an 8-acre farm
would require as many as 50 casual pickers and one full-time employee to
perform other tasks during the entire season. Keays spoke to a confidential
informant who operated a 20-acre farm. This individual advised Keays the amount
of money spent by Gill Farms on labour in the month of June was excessive
as was the sum expended in September. This grower informed Keays pickers are
paid by the pound and fall pruning is negligible. The grower offered the
opinion that 70-80 pickers would be needed over a period of 20 days
to harvest the crop. Keays stated he spoke with Turgeon about the alleged tape
recording of the meeting at the HRDC office and was advised the tape was
garbled and of no use so it had been discarded. He also spoke with Rai about
the issue raised by Ronnie Gill that Rai’s command of Punjabi was
insufficient to interpret correctly the information provided by workers during
interviews whether by telephone or in person. Keays stated his practice is to
contact a Rulings Officer only for the purpose of clarifying some matter such
as illegible handwriting or something similar but does not otherwise discuss the
files. At the bottom of page 7 of the Report, Keays set out the issues in
dispute. At the bottom of p. 10, he considered the non-related workers to
have been complicit in the arrangement whereby they would be given enough work
to qualify for UI benefits. In his opinion, the submissions by Ronnie Gill
on behalf of Gill Farms had left him with the impression that the workers had
been guaranteed a certain period of work whether or not they were needed. As a
result, Keays decided to recommend to the Minister that the employment of each
one of the otherwise non-related workers should not be considered as insurable
employment because they were related as a fact due to their consent to act in
concert with Rajinder Singh Gill and Hakam Singh Gill in
order to participate in a bargain whereby a certain period of work was
guaranteed regardless of whether the work was necessary or had been performed.
However, after obtaining approval from his superiors in CCRA, Keays decided to
embark on an exercise to explore an alternative position in the event the
Minister’s position in relation to the otherwise non-related workers was not
sustained on appeal to the Tax Court of Canada. Keays stated he began to
calculate the hours of work and insurable earnings applicable to each appellant
based on the normal number of hours attributable to the various tasks performed
by each appellant during the term of their employment. Although he accepted the
payment to the appellants had been based on piecework while picking berries and
on an hourly rate for other tasks, he converted the gross income of each
appellant to an hourly rate in order to determine an appropriate amount of insurable earnings.
Keays stated he relied on the schedule in Blatchford’s forensic report
– Exhibit R-17 – and if a particular worker was present on a
specific day, attempted to acknowledge – on an hourly basis – the
work performed by that individual based on the methodology employed at
p. 14 of his Report (Exhibit R-1, tab 3). For example, Keays
considered it reasonable to allow a total of 4 days – at 8 hours
per day – for the tasks of spraying and fertilizing and he based his
finding on the recommendation of Sweeney. Keays prepared a table
– Exhibit R-31 – in order to illustrate the various tasks, the
period during which they were performed, the number of hours allocated to each
task according to the submission from LRS and the amount determined by him to
represent a reasonable time in which to accomplish said tasks. The position of
the appellants and intervenors was that a total of 417 hours had been
expended in gathering dried bushes in the period from May 25 to
June 1, 1998. On the basis of information received from Sweeney and
from a Director of the Council, Keays considered that amount to have been
seriously inflated and determined that a total of 48 person-hours would
have been sufficient to perform that work. LRS had suggested that 560 hours
attributable to hoeing was reasonable. Keays rejected that number and based on
the research he had conducted, assigned a total of 96 hours to that task
on the basis it could have been done by 6 workers during two 8-hour days.
LRS estimated it took 135.5 hours to work on the water pipes (irrigation
system) and allowed one day for 6 workers for a total of 56 hours.
The position taken by the intervenors was that installation of the nets
occupied a total of 770.5 hours. Keays accepted the advice of Sweeney that
the time required should not exceed 18 hours per acre and that it would
not have taken more than 148.5 hours to finish that task. LRS stated it
took between 500 and 645 hours to take down the nets at the end of the
season. Again, Keays used the same formula of 18 hours per acre and
allotted 145.5 total hours to that task. The position taken by Gill Farms
was that workers had spent between 432 and 576 hours pruning in the late
fall. Keays found that estimate to be unreasonable and decided it could have
been done in one day by 8 workers for a total of 64 person-hours.
Instead of allocating 72 hours to washing buckets, Keays considered that
only a few hours would have been required – in total – because the
lugs were washed by the canneries/packers and made no allocation of labour as a
result. Because the schedule in Blatchford’s report showed 5 people had
been involved in putting up the nets, he allocated 4 days work – at
8 hours per day – to each of the 5 appellants who performed that
task. Based on said schedule, he determined 7 appellants had worked taking
down the nets and assigned each one 3 days work and accepted the hours as
recorded on their payroll sheets. As a result, some appellants were accorded
7 hours for working at that task while others were granted 8 or 9 hours
as marked on the sheet. The forensic audit prepared by Blatchford examined the
volume of berries picked daily between July 2 and September 9, 1998.
The amount picked was divided into two categories, namely the weight
picked by the casual workers paid by piece rate and those workers – including
the appellants in the within proceedings – who were paid
– allegedly – on an hourly basis. Keays stated he chose the figure of
10 pounds per hour as representing the minimum production per worker.
In 1998, the average price per pound of blueberries was 71 cents so
it would cost $7.10 per hour to pick 10 pounds of blueberries. Keays
stated he did not take into account additional sales of berries even though
– in the letter from LRS – there had been a reference to sales at a
stand and other places. Keays stated there had been no specific details
provided therein nor any reference to sales in the Kelowna
area. Keays stated he used 75 cents per pound as an average price with the
result he considered it would cost Gill Farms $7.50 per hour – including
holiday pay – for each worker to pick 10 pounds. Keays was aware that
according to the information provided by Gill Farms to HRDC, each worker was
expected to pick 20 pounds per hour. In order to calculate insurable
earnings for each worker, Keays plotted hours on a chart on a day by day basis
whenever possible and used the rate of pay – plus holiday pay – as
shown on the payroll records of Gill Farms. Some workers earned $7.50 per
hour while others apparently earned $8 and others $10. Keays accepted
those rates as shown on the payroll sheet of each worker on the basis it is the
prerogative of an employer to pay varying amounts of wages to employees. Keays
prepared a calendar on which he set forth the days and hours of work that he
was willing to accept as representing the work actually performed by each of
the appellants in the within appeals. Keays stated he had a problem accepting
the reliability of records and was bothered by various instances of
inconsistent statements by workers throughout the entire process until the
files had reached his desk and thereafter as disclosed by answers within some
of the Questionnaires. Keays stated he was satisfied that some work had been
done but it did not support the claim that each worker had been engaged in
employment over the extended period as purported in his or her ROE. In his
opinion, the workers should have been able to provide detailed information
pertaining to duties performed month by month. He relied on information
contained in Questionnaires that had been prepared and submitted by
Ronnie Gill on behalf of some of the workers. In Keay’s view, the forensic
audit by Blatchford represented an accurate snapshot of the financial situation
of Gill Farms and the farming operation during the relevant period in 1998.
After canvassing the issue with Rai, he was satisfied with assurances
concerning her ability to speak Punjabi and to translate her interviews
– in Punjabi – with workers, accurately into English. He was also
convinced the Punjabi/English, English/Punjabi interpreters utilized during
HRDC interviews were sufficiently fluent in both languages.
[106] Counsel requested Keays deal with the
process concerning his recommendations for decisions as they applied to the
individual appellants in the within proceedings, commencing with
Gurdev Singh Gill. Keays referred to Exhibit R-3, tab 1, a
copy of his Master Report, of which the first 16 pages were generic – applicable
to all appellants – and to p. 17 where he commenced his specific
analysis of Gurdev Singh Gill’s employment situation. Keays stated he
structured the reports for each appellant by including the Master Report at the
beginning before proceeding to deal with facts specific to that individual.
Keays prepared a calendar – p. 21 – in which certain days of
alleged employment together with a description of duties were listed, in table
form. He explained the shaded areas represented those days of purported duties
that he considered were not supported by an analysis of the information he had
reviewed and the research he had undertaken with respect to normal practices
within the berry industry. For purposes of his calculations, Keays assumed the
berry farming season extended from May 17 to September 26, inclusive
and that this period covered all aspects of the Gill Farms’ operations
in 1998. For the period from May 17 to May 24, Keays allocated 4
days work to each worker who was employed at that time when spraying and
fertilizing was done and used the number of hours recorded in the relevant
payroll record for those days. However, Gurdev Singh Gill did not
start work until August 3 so was not given credit for any time spent on
the spraying and fertilizing task. With respect to the periods when picking was
underway, Keays used 10 pounds per hour as the minimum amount of
production per worker and if the schedule included in Blatchford’s report
indicated production less than that – as an average – he disallowed
that entire day. Again, with respect to Gurdev Singh Gill, Keays was
concerned with the discrepancy between his holiday pay – 7.6% – as compared
to most workers who had received only 4% of their wage as holiday pay. He
stated he was concerned that people who apparently rode to work and back in the
same car or bus had different hours marked on their payroll sheets so there was
a discrepancy of one hour per day either 6 or 7 days per week. Based on the
information received from Sweeney and from blueberry growers in the area, Keays
did not believe workers were paid an hourly wage if there was no work to be
done. In order to prepare for the possibility the Minister’s view of the
non-arm’s relationship – by otherwise non-related workers – was not
accepted by the Tax Court of Canada on appeal from the decisions issued to the
appellants and intervenors, Keays determined the amount of insurable hours – 108 – and insurable earnings – $871.56 – were
applicable to the employment of Gurdev Singh Gill. In this case
– as he did for all otherwise non-related appellants – Keays calculated the amount of insurable earnings by multiplying the
number of insurable hours by the hourly rate on the relevant payroll record and
added the appropriate amount of holiday pay shown on said record, whether 4% or
7.6%.
[107] Keays referred to Exhibit R-4,
tab 2 applicable to the appeal of Harbans Kaur Khatra (appeal
2001-2120(EI)). His specific analysis with respect to Khatra commenced at
p. 26. In his view this worker had not been employed in insurable
employment with Gill Farms due to the absence of a non-arm’s length
relationship. However, as an alternative, he decided it was reasonable to find
she had 254 hours of insurable employment and insurable earnings in the
sum of $1,981.20. Keays accepted Khatra started work on
July 12, 1998 when the blueberry season was well underway. According
to her payroll record, she worked every day until she was laid off on
September 26. However, the Blatchford report indicated there were some
days in which no berries were picked at Gill Farms but Khatra had been credited
with 8 hours work. Keays stated he is well aware workers often pick
berries every day during the peak season. As shown on his calendar – beginning
at p. 29 – he accepted Khatra had worked on those days which were not
within the shaded area and which he disallowed as not being reasonable due to
the lack of berry production on those dates.
[108] Keays referred to Exhibit R-6,
tab 1, applicable to the appeal of Surinder Kaur Gill (2001-2115(EI)).
His analysis specific to her case commenced at p. 17. The relevant period
of employment as reported in her ROE was August 3 to September 12, 1998.
Keays maintained the primary position of no insurability but embarked on the
process of determining the appropriate number of insurable hours and earnings
as an alternative. He reviewed the facts and set forth – p. 18 –
those matters he regarded as discrepancies, particularly the appellant’s
comments about putting up nets when they had been installed long before she
started work. Keays was unsatisfied with her responses about identity of
co-workers and was puzzled by her holiday pay rate of 7.6% since she was
employed for a relatively short period compared to other workers. Keays
accepted the information in the Blatchford report that September 6, 1998
was the last day on which berries were picked at Gill Farms. However, Keays
stated August 25th was the last day for which he allocated hours for
picking because once the amounts picked by the casual workers were subtracted,
the balance of pounds, when divided by the number of so-called hourly workers,
amounted only to a fraction of pounds per hour for subsequent entire days and
he chose to ignore that minimal production for the purpose of his calculations.
Keays excluded all the days contained within the shaded areas of pp. 23
and 24 of the calendar as it pertained to Surinder Kaur Gill. Keays
determined she had worked 108 insurable hours and had insurable earnings
of $871.56. When it was pointed out the decision letter
– tab 2 – stated her insurable earnings were $810.56, Keays
acknowledged that was in error because her holiday pay of 7.6% had not
been added and the proper amount was $871.56 and that this sum was also
the correct amount of insurable earnings of her husband
– Gurdev Singh Gill – and not the sum of $810.56 as
stated erroneously in his decision letter.
[109] Keays referred to Exhibit R-6,
tab 1, applicable to the appeal of Surinder K. Gill (appeal 2001-2116(EI)).
His specific analysis began at p. 17 as it concerned the period from
July 26 to September 12, 1998. After stating the primary
position of no insurability, Keays considered the alternative and decided that
if her employment was insurable she had worked 114 hours and had insurable
earnings in the sum of $919.98. At p. 18, Keays took into account
this appellant had worked at Lucerne during this period and had given priority
to that job due to the fact she received better pay than from picking berries.
Because the payroll record prepared by Gill Farms indicated
Surinder K. Gill had worked 8 hours on August 15, 1998
– a date when she also worked at Lucerne during the
day – he did not credit her with 8 hours for that day. As shown on
the calendar, he did not credit her with any hours during those days in the
shaded areas on pp. 23 and 24 because his examination of the relevant
information led him to conclude there was no significant amount of work
performed on those days and he ignored any entries to the contrary in her
payroll records.
[110] Keays referred to Exhibit R-9,
tab 2, applicable to the appeal of Himmat Singh Makkar (appeal
2001-2121(EI)). The analysis specific to this appellant commenced at p. 19
and pertained to the brief period from August 2 to
August 28, 1998. Rai – in her capacity as Rulings
Officer – had recognized his employment during said period and found he
had worked 140 insurable hours and had earnings of $1,164.40. Keays
stated that he considered Makkar’s employment not to have been insurable but
proceeded to determine – as an alternative – that Makkar had worked
no more than 72 insurable hours during which he had insurable earnings
of $599.04. At p. 21, Keays set out what he
considered were serious discrepancies including the conflicting statements
Makkar and his wife – Santosh K. Makkar – had made at
various stages concerning the use of picking cards. Keays noted
Himmat Singh Makkar told HRDC he had been paid 30 cents per
pound for picking blueberries at Gill Farms but later changed his story to say
he had been confused and had stated – in error – the piece rate paid
to him for working at a nursery. As disclosed by the shaded and un-shaded areas
on pp. 26 and 27 of his report, Keays recognized only 72 hours of
work during the relevant period for which he accepted Makkar had been paid
$8 per hour plus 4% holiday pay.
[111] Keays referred to Exhibit R-10,
tab 2, applicable to the appeal of Santosh Kaur Makkar (appeal
2001-2117(EI)). Commencing at p. 19, Keays examined the circumstances of
her employment between August 2 and September 26, 1998. Keays noted
that a reference to Jarnail K. Sidhu – mid-way on that
page – is a formatting error because the subsequent
discussion concerns Santosh K. Makkar. At p. 21, Keays noted
certain discrepancies regarding various aspects of her employment
including matters such as frequency of payment, use of picking cards,
hours of work and duration of employment. Keays stated he found
it somewhat strange that this worker and her husband – Himmat Singh Makkar –
started work the same day but he was laid off on August 28 while she
continued until September 26. Although they rode to work together,
Himmat Singh Makkar only worked 5 days per week while she
worked – apparently – 7 days per
week during the course of her employment at Gill Farms. Keays stated he
was convinced no useful work had needed to be done after
September 12, 1998 and that it was not reasonable for
Santosh K. Makkar to have been employed after that date. Keays concluded
– as an alternative to the primary recommendation – that she had
worked 117 insurable hours and had insurable earnings in the sum of $912.60.
He did not accept she had worked those days within the shaded areas on
pp. 27 and 28 and credited her for those days in the un-shaded areas,
allotting the number of hours per day shown on the payroll records of Gill
Farms.
[112] Keays referred to Exhibit R-11,
tab 1, applicable to the appeal of Jarnail Kaur Sidhu
(appeal 2001-2118(EI)). In his report – commencing at p. 17 –
Keays was not convinced she had performed any useful work after September 12, 1998.
He accepted her start date of May 25 but – as shown on his calendar
at pp. 21 and 22 – did not acknowledge she had worked
– thereafter – on those days in the shaded areas for reasons stated
earlier with respect to other appellants. He set forth details of perceived
discrepancies on pp. 17 and 18 including those arising from descriptions
of work performed, frequency of payment of wages and conditions of employment
such as use of picking cards and number of hours and days worked each week.
Based on the information he had gathered from experts within the agricultural
industry, Keays decided to reduce the number of hours allegedly worked by Sidhu
in May and June with respect to working at tasks categorized – in his
calendar – as Spraying and Fertilizing, Gathering
Dried Bushes, Hand Hoeing, Working on Water Pipes and Putting Up Nets. Keays
concluded Sidhu had worked 325 insurable hours and had insurable earnings
of $2,535.
[113] Keays referred to Exhibit R-12,
tab 1, applicable to the appeal of Gyan Kaur Jawanda
(appeal 2001-2125(EI)). His specific analysis begins at p. 17 with respect
to the period from May 25 to September 26, 1998. Keays noted – pp. 18 and 19 – Jawanda apparently had a poor
memory and claimed she was unaware of the contents of her interview with Rai
which occurred in her own residence in the presence of her daughter. Keays
stated he was satisfied the interview had been conducted properly and that
Jawanda understood it, particularly when the notes of said interview as
prepared by Rai were signed a few days later by Jawanda after review and
explanation by her daughter, Baljit. Keays allowed those days in the un-shaded
area in the calendar as shown on pp. 21-24, inclusive, and decided she had
worked 333 insurable hours and had insurable earnings in the sum
of $2,597.40 rather than 942 hours and $7,347.60 earnings as stated
in Jawanda’s ROE issued by Gill Farms.
[114] Keays referred to Exhibit R-5,
tab 1, applicable to the appeal of Harmit Kaur Gill (appeal
2001-2101(EI)). His analysis specific to this appellant begins at p. 17.
Unlike the unrelated workers whose involvement in the within appeals was
limited to their employment with Gill Farms only in 1998, the relevant periods
of employment of Harmit Kaur Gill at issue were in 1996, 1997
and 1998. Keays was aware this appellant was the wife of Hakam Singh Gill
and the sister‑in‑law of Rajinder Singh Gill who was
married to her sister, Manjit Kaur Gill. Because this appellant was
related to the partners of the payor as deemed by section 251 of the Income
Tax Act, he undertook an examination of the criteria set out in
paragraph 3(2)(c) of the Unemployment Insurance Act. The
decision letter – tab 2 – referred to that Act because the
1996 period of employment of Harmit Kaur Gill is alleged to have
begun on June 2, 1996 prior to the coming into force of the new Employment
Insurance Act which governed employment situations commencing
July 1, 1996. At p. 19, Keays dealt with the indicia as required
by the provisions of the paragraph. He considered the remuneration of $9
per hour was reasonable for supervisory work on a farm provided there was a
reasonable amount of work to be done which would require supervision. In
relation to the terms and conditions of employment, Keays concluded
Harmit Kaur Gill had been given a guarantee by the partners operating
Gill Farms that she would be employed for the entire growing season and
– therefore – was based on the needs of the worker to accumulate sufficient
weeks – later, hours – to qualify for UI benefits rather than the
requirements of the payor partnership based on sound economic reasons.
Concerning the length and duration of employment, Keays decided the periods of
employment in each of the relevant years was not consistent with the blueberry
farming season. In his opinion, the payor partnership had extended the normal
time frames – both at the beginning and the end – of a berry season
in order to make it appear as though the employment was necessary for the
length shown on the ROEs for 1996, 1997 and 1998. Keays considered that
duration of employment to have been at odds with the normal standards within
the local agricultural industry. In examining the nature and importance of the
work performed, Keays thought it unusual that Gill Farms would
have hired both Harmit Kaur Gill and her sister ‑ Manjit Kaur Gill –
to supervise a staff composed – at times – of only 5 people. In
his view, an arm’s length employer operating with limited financial resources
and suffering annual operating losses would not hire two full-time supervisors
particularly when there were large blocks of time in each season when not much
– if any – work was being done. Keays concluded the timing and extent
of the duties performed by Harmit Kaur Gill during the relevant
periods of each of the years had been grossly exaggerated and he recommended
the Minister issue a decision that her employment was excluded (excepted)
employment because she and Gill Farms would not have entered into a
substantially similar contract of employment in the event they had been dealing
at arm’s length. In arriving at that conclusion, Keays stated he had not been
aware whether any labour or other duties had been performed by
Harmit Kaur Gill nor did he enter into any consideration of an
alternate position as he had done with the employment of the unrelated workers
in 1998. Keays stated the information before him disclosed that
Harmit Kaur Gill and her sister – Manjit – had worked only
as supervisors and that there had been ample opportunity to present evidence to
the contrary to HRDC or to Rai instead of only at the appeal from the rulings.
Keays stated he accepted the information provided on behalf of
Harmit Kaur Gill with respect to the 1998 season and accepted the
representation it could also apply to her periods of employment in 1996
and 1997 since her position was that the duties performed were similar in each
of those years.
[115] Keays referred to Exhibit R-8,
tab 1, applicable to the appeal of Manjit Kaur Gill (appeal
2001-2100(EI)). His analysis, specific to this appellant, commences at p. 17.
The relevant periods of employment included the years 1996, 1997 and 1998.
Keays was aware that Manjit Kaur Gill was married to
Rajinder Singh Gill and that she was the sister of
Harmit Kaur Gill who was married to Hakam Singh Gill, the
partner – with Rajinder – in Gill Farms. When reviewing the facts, he
did so on the basis that this appellant had confirmed – through her
representative(s) – that her duties were the same during all 3 years
under review. In considering the indicia required by the relevant provision of
the legislation, Keays stated he examined the same facts which had been
applicable to the employment situation of Harmit Kaur Gill and found
no significant difference. He stated he found it strange that the extra duties
allegedly performed would only surface in representations made to him rather
than earlier when there had been ample opportunity to have done so either
during the HRDC interview or at the large meeting at the HRDC Langley office in
May, 1999 or during the rulings stage. He stated there had been no mention
– earlier – of additional cash sales of blueberries and even though
the book recording certain cash sales had been included in the material on the
appeal file he did not consider it would have had a major impact on his
analysis. Overall, he considered the extent of the duties allegedly performed
by Manjit Kaur Gill were exaggerated and the timing and extent of the
duties reportedly performed were inflated as was the length and duration of
employment for reasons stated earlier with respect to the appeal – from
the ruling – by Harmit Kaur Gill. He was satisfied the
remuneration throughout the 3 years under review was reasonable. Keays concluded
the employment of Manjit Kaur Gill constituted excluded employment
because he was not satisfied she and the partners operating Gill Farms would
have entered into a substantially similar contract of employment if they had
been dealing with each other at arm’s length.
[116] Bernie Keays was cross-examined by
Ronnie Gill. With respect to the discussions with the confidential
informants in the blueberry industry, Keays stated he had not considered the
impact of a grower having different varieties of blueberries and agreed that if
a labour contracting entity is retained it will provide a supervisor and
arrange for transportation of workers to the fields. Keays stated when he made
notes – Exhibit R-30 – of his conversation with a grower he
understood this individual had a 20-acre blueberry farm which was operated by
that person, his two children and contract pickers. Keays stated he was
informed that if an employer made some sort of guarantee with respect to
the duration of employment on a piecework basis it would be understood
that this would continue only as long as there were berries to be picked. Keays
stated he was aware Lucky Gill-Chatta ‑ writing on behalf of
LRS – had some concerns about Rai’s interview with
Gyan Kaur Jawanda. However, the first page of her letter – Exhibit R-1,
tab 15, p. 84 – did not question the extent of Rai’s ability to
speak Punjabi nor did it raise any issue about the accuracy of the translation
of that interview into written English. Keays agreed there had been an earlier
reference by LRS to sales of blueberries at a stand and to other places and
accepted that some workers must have picked those berries. Keays was
referred to Turgeon’s notes – tab 24, pp. 246 and
247 – taken during the large meeting – on May 20, 1999 – at
the HRDC Langley office in which she wrote about the discussion with
Rajinder Singh Gill concerning delivering berries to Kelowna and other sales at the roadside stand and to Hamilton
Farms, involving approximately 5,000 pounds in total. Keays stated he
based his decision solely on the information contained in the audit report
authored by Blatchford. Keays acknowledged Blatchford – when calculating production of pickers –
had included both Harmit and Manjit in this group as though they had
spent all of their time picking berries. He agreed if that
information was not correct, then their inclusion within that group of
pickers would have an impact on the calculations but was not certain of the
extent thereof, barring a recalculation during which this new information was taken into
account. Ronnie Gill referred Keays to his notes of a conversation
– Exhibit R-29 – with an informant within the blueberry industry
where he noted that between 70 and 80 pickers would be required two
days a week. Gill suggested that would amount to more than 1,000 person
hours per week which would approximate the equivalent total time spent by
18 full-time hourly-paid pickers working 8 hours per day, 7 days
per week. Keays stated he had not related that general information to the
specific situation applicable to Gill Farms but had relied on the audit report
prepared by Blatchford without going behind those figures stated therein to
examine other alternative methods of calculating the volume picked by workers.
Keays recalled various conversations between himself and Ronnie Gill concerning
the appeals – from the rulings – by the workers and the owners of
Gill Farms and stated his policy is to make notes of all conversations as
they related to relevant matters and would choose not to do so only if it
had been a quick call for a very specific purpose. Keays
was shown a Telus statement – Exhibit A-18 – showing an
11-minute call from Ronnie Gill’s number to Keays on December 12, 2000
and another call which according to the statement – Exhibit A-19 –
lasted 25 minutes on January 16, 2001. Keays agreed he had not
made notes of either conversation as he had done with others which were within
tab 6 of Exhibit R-1. He pointed out the January 16, 2001 telephone
call was made after the decision letters had been issued on January 11 and
would not have been considered significant at that point. When questioned about
the subject of tape recordings allegedly made by Turgeon of interviews, Keays
replied he did not recall any conversation about that subject matter nor
did he ever mention – even in jest – that any such tapes had been “burned”.
Keays agreed there had been information supplied by Jarnail Kaur Sidhu
concerning her work putting up nets and that other details were included in the
Questionnaire completed and submitted by Ronnie Gill on her behalf. Keays
stated he had to consider the totality of all the information before him
including that provided by experts within the agricultural industry as it
related to the time required to perform certain tasks. He conceded this
information was general and was not provided specifically in relation to the
actual situation at Gill Farms.
[117] Counsel for the respondent advised the
Court the respondent’s case was closed.
[118] Ronnie Gill advised the Court she was
calling rebuttal evidence. Hakam Singh Gill testified in Punjabi and
the questions and answers and other aspects of the proceedings were interpreted
and/or translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. He stated he was employed as a
mill worker in Abbotsford and was a 50-50 partner – with his brother,
Rajinder Singh Gill – in Gill Farms. He was referred to a
statement ‑ Exhibit A-20 – which, although taken from the
income tax return of Rajinder Singh Gill for the 1999 taxation year,
also applied to him since they have always been 50-50 partners. The
statement showed gross farming income of $91,780 and Rajinder and Hakam
each claimed a loss of $5,136 against other income. Hakam stated the
berries suffered from a root disease during 1999 and that this same problem
had been encountered in 1997, 1998 and later in 2002. The disease
affects the root of the plant and causes the branches to dry up to the point
where it reduces berry production by as much as 40% or – at some
point – kills the plant. Hakam was referred to the
statement – Exhibit A-21 – which had been included in
Rajinder’s income tax return for the 2000 taxation year. It showed gross farming
income in the sum of $147,470 and that Rajinder had declared his
50% share of total farming net income was $3,787. The statement – Exhibit A-22 –
for the 2001 taxation year showed gross farming income in the sum of $129,325 which
produced net income of $530 for each partner. With respect to the 2002 taxation
year, the statement – Exhibit A-23 – showed gross farming
income was $169,873 which yielded a net profit of $5,170 for
each partner. The statement – Exhibit A-24 –
for the 2003 taxation year showed gross farming income of $151,141 which
did not lead to profit but rather resulted in a net loss of $7,659 for
each partner. Hakam Singh Gill stated the disease problem had caused
a reduction in normal yield during the 2003 season. The 2004 taxation year
produced gross income of $237,059 according to the statement –
Exhibit A-25 – and each partner claimed net farming income in the sum
of $21,415. Hakam stated Gill Farms had increased gross farming
revenue from $91,780 in 1999 to $237,059 in 2004 even
though the acreage was the same. He stated the mature plants were healthier
in 2004 and the price per pound of blueberries had increased in recent
years. As an example, the price was $1.50 per pound at the beginning of
the 2005 season, dropped later to $1.15 in full season and near
the end, climbed back to $1.80 per pound due to market laws of supply and
demand. Hakam stated that in 2005 Gill Farms sold berries at $1.80
per pound for a 10-day period. A further factor in increasing revenue – and
net profit – was the extent of the yield which had increased to at least
16,000 pounds per acre. Hakam Singh Gill was referred to a
bundle of deposit slips – Exhibit A-26 – relating to the account
at the credit union – Prospera – formerly known as Fraser Valley.
Hakam stated there were various deposit slips indicating members of his family
had been the source of the funds deposited to the account. Hakam stated he
thought the first deposit as shown on the slip – dated
October 31, 1998 – probably was a pay cheque from the mill. He stated
the cheque – shown on the last page of Exhibit A-26 – dated
November 2, 1998, in the sum of $2,400 and payable to
Rajinder Gill had been issued by Harpreet Gill as a loan to the
farming operation. He stated Gill Farms had borrowed money from friends and
referred to the photocopy of the cheque – 3 pages from the back of
said exhibit – dated 11-11, 1998 – in the sum
of $10,000 – issued on the account of Gurbax Brar and
Kuljit Brar and payable to Rajinder S. Gill and
Hakam S. Gill. On the 4th page in said exhibit, Hakam referred to a
photocopy of a cheque dated November 18, 1998 – in
the sum of $10,000 – payable to
Rajinder & Hakam Gill that had been issued by Mr. and
Mrs. Sidhu as a loan to Gill Farms. Hakam stated he and his brother
also borrowed the sum of $3,000 from Harmel S. Bhugra and his
wife – Parminder K. Bugra – as evidenced by the
photocopy of the cheque dated November 18, 1998. On
November 15, 1998, he deposited a pay cheque – in
the sum of $1,220.76 – issued by his employer, Fraser Pulp. Hakam
stated he received some money from his father’s estate which was transferred to
the Fraser Valley account – from
another account – at some point after the harvest had
finished in 1998 but could not recall the amount. He was referred
to a November 10, 1998 account statement issued by Fraser Valley – Exhibit R-2,
tab 41, pp. 570, 571 – showing a deposit in the sum
of $4,000 on November 4, 1998 from another account. Hakam stated
that entry probably was the one applicable to the money received from his
father’s estate. Hakam Singh Gill stated he wanted to clear up a
misconception about the type of hoeing performed on their farm. He
agreed with the statement by Sweeney – agricultural
expert – that roots of the blueberry plant are shallow but explained the
type of hoe used is only 7 or 8 inches long and has a short handle.
The end of the hoe is shaped like a spade and is inserted gently into the
ground – without penetrating too deep – in order to remove grass that cannot be controlled by spraying during
that period of the season when the berries are being formed.
[119] Hakam Singh Gill was
cross-examined by Amy Francis. She pointed out that during the years 1996,
1997 and 1998, the wage expense exceeded the revenue of Gill Farms. Although
the figures were not in evidence, she suggested that situation was probably the
same in 1999. Hakam agreed that may have been the case in that year as
well. Counsel questioned why the gross income fell from $169,873 in 2002
to $151,141 in 2003. Hakam stated some branches had dried out due to
the disease and had to be trimmed and some bushes had died so new plants had to
be purchased. Counsel pointed out there had been no previous mention – at any stage – of the disease affecting the blueberry plants
in 1998 and suggested it had been raised at this point in order to account
for excess labour in 1998 for the purpose of trimming. Hakam stated
he had mentioned cutting dry branches earlier but had not referred to the
disease as the need for that work to be done. Counsel advised
Hakam Singh Gill that the cheques shown on Exhibit A-26,
totalled $26,600 and that berry sales –
in 1998 – amounted to $73,712 and rental income
in the sum of $12,000 had also been included as farm income. She pointed
out there had been a total sum of $172,282.64 deposited to the Fraser Valley farm account in 1998 and that there was a
discrepancy of over $60,000 which had not been accounted for in the course
of the evidence presented to date. Hakam replied that there were further and
other contributions to the farming operation made by other family members who
were employed at jobs off the farm.
[120] Ronnie Gill stated the case on behalf
of the appellants and both intervenors was concluded.
[121] Counsel for the respondent and Ronnie Gill
agreed it would be more efficient to make written submissions and to exchange
responses to said submission and a deadline of November 15, 2005 was
established to accomplish that purpose.
[122] In response to a query from the Bench,
Ms. Francis stated she would seek instructions whether the Minister wished
to maintain the position – as set forth in paragraph 10 of each Reply
filed in response to each appeal by workers who were not members of the Gill
family – that each had been employed in a non-arm’s relationship – as
a matter of fact – with the payor partnership operating Gill Farms.
[123] Within one week, Ms. Francis advised
the Court the Minister had abandoned that primary position with respect to
those workers who were not members of the Gill family and that forthcoming
written submissions would be based on the alternative findings – as stated in paragraph 11 of each appellant’s Reply –
with respect to periods of employment, insurable hours and insurable earnings
applicable to each of them, as calculated by Bernie Keays pursuant to the
methodology disclosed in his Master Report and as explained during the course
of his testimony.
[124] Counsel advised the respondent’s position
with respect to Harmit Kaur Gill and Manjit Kaur Gill was
unchanged and that each of their periods of employment during 1996, 1997 and
1998 was considered to constitute excluded employment within the meaning of
paragraph 5(2)(i) of the EIA.
[125] I will now decide these cases, beginning
with the appeal of Harmit Kaur Gill.
Harmit Kaur Gill:
Relevant Book of Documents: Exhibit R-5
Minister’s Decision:
[126] The Minister decided the employment of the
appellant with Gill Farms was not insurable employment during each of the
relevant periods at issue in 1996, 1997 and 1998.
Appellant’s Position:
[127] The appellant maintains she was employed
during each period and had insurable earnings as stated in each ROE issued by
Gill Farms in respect of each period of employment.
Relevant Jurisprudence:
[128] The relevant provision of the Act is
paragraph 5(3)(b) which reads as follows:
(3)
For the
purposes of paragraph (2)(i),
...
(b) if the
employer is, within the meaning of that Act, related to the employee, they are
deemed to deal with each other at arm's length if the Minister of National
Revenue is satisfied that, having regard to all the circumstances of the
employment, including the remuneration paid, the terms and conditions, the
duration and the nature and importance of the work performed, it is reasonable
to conclude that they would have entered into a substantially similar contract
of employment if they had been dealing with each other at arm's length.
…
[129] In the case of Birkland v.
Canada (Minister of National Revenue – M.N.R.), [2005] T.C.J. No. 195, 2005
TCC 291, Justice Bowie, Tax Court of Canada, considered the effect of a
decision by the Minister based on paragraphs 5(2)(i) and 5(3)(b)
of the EIA. In the course of his reasons, Justice Bowie reviewed the
relevant jurisprudence as it evolved over the course of several years and
proceeded to comment on the current state of the law relevant to the
determination of this issue. It is useful to quote a substantial part of this
judgment, commencing at paragraph 2, as follows:
2 During
the hearing before me there was some discussion as to the role of this Court in
cases arising under paragraph 5(3)(b) of the Act. This question has
been the subject of a number of decisions of the Federal Court of Appeal during
the past decade or so. The earlier cases, [Tignish Auto Parts Inc. v. M.N.R.,
(1994) 25 Admin L.R. (2d) 1 (F.C.A.); Ferme Émile Richard et Fils Inc. v.
Canada, (1994) 178 N.R. 361 (F.C.A.); M.N.R. v. Jencan Ltd., [1998]
1 F.C. 187; Bayside Drive-In Ltd. v. Canada (Minister of National
Revenue), [1997] FCJ No. 1019.] decided under paragraphs 3(1)(a)
and 3(2)(c) of the Unemployment Insurance Act, [R.S.C. 1985 c.
U-1, as amended. These provisions do not differ materially from
paragraphs 5(2)(i) and 5(3)(b) of the present Act.] held that the
Minister’s opnion was insulated from appeal in this Court, unless it could be
shown that in the course of forming that opinion he had committed what might be
termed an administrative law error. As the words of subparagraph 3(2)(c)(ii)
conferred a discretion on the Minister, this Court had no mandate to simply
substitute its opinion for that of the Minister. However, if in the course of
the hearing of an appeal the Appellant were able to show that the Minister had
erred in law in forming his opinion, then this Court’s function was to proceed
to a de novo determination of the paragraph 3(2)(c)(ii)
(now 5(3)(b)) question whether the terms of the employment contract
could reasonably be considered to be those that arm’s length parties would have
arrived at. In other words, after finding that the Minister’s decision was
vitiated by an administrative law error, and only then, could this Court substitute
its opinion for that of the Minister as to the paragraph 3(2)(c)
question.
3 In 1999
the Federal Court of Appeal revisited the matter in Légaré v. Canada [[1999] F.C.J. No.
878.] Marceau J.A., speaking for himself and Desjardins and Noël JJ.A., said there
at paragraph 4:
4 The Act
requires the Minister to make a determination based on his own conviction drawn
from a review of the file. The wording used introduces a form of subjective
element, and while this has been called a discretionary power of the Minister,
this characterization should not obscure the fact that the exercise of this
power must clearly be completely and exclusively based on an objective
appreciation of known or inferred facts. And the Minister’s determination is
subject to review. In fact, the Act confers the power of review on the Tax
Court of Canada on the basis of what is discovered in an inquiry carried out in
the presence of all interested parties. The Court is not mandated to make the
same kind of determination as the Minister and thus cannot purely and simply
substitute its assessment for that of the Minister: that falls under the
Minister’s so-called discretionary power. However, the Court must verify
whether the facts inferred or relied on by the Minister are real and were correctly
assessed having regard to the context in which they occurred, and after doing
so, it must decide whether the conclusion with the Minister was “satisfied”
still seems reasonable.
That judgment has
spawned some debate as to whether it represents a new point of departure in the
jurisprudence, or simply a gloss on the law as established in the earlier
cases. Support for the former view may be found in some decisions of the
Federal Court of Appeal, [Pérusse v. Canada, [2000] F.C.J. No. 310; Valente v.
Canada, 2003 FCA 132; Massignani v. Canada (Minister of National Revenue), 2003
FCA 172; and Denis v. Canada (Minister of National Revenue), 2004 FCA 26.]
and for the latter view in some others. [Candor Entreprises Ltd. v. Canada (Minister of
National Revenue), 2000 CanLII 16690 (F.C.A.); Quigley Electric Ltd. v. Canada
(Minister of National Revenue), 2003 FCA 461; Théberge v. Canada (Minister of
National revenue), 2002 FCA 123.] Still others are consistent with either view.
[Gagnon v. Canada (Attorney General),
2001 FCA 292; Staltari v. Canada (Attorney General), 2003 FCA 448.] My colleague
Archambault J. has recently discussed the subject quite fully in Bélanger v.
M.N.R. [2003 FCA 455.] I do not propose to add to that debate, except to point
out that Marceau J.A. himself seems to have been of the view that Légaré had
overruled the earlier cases when ten months later, in Pérusse, he wrote the
following two paragraphs, concurred in by Décary J.A., who had delivered the
judgment in Ferme Émile Richard:
13 It is
clear from reading the reasons for the decision that, for the presiding judge,
the purpose of his hearing was to determine whether the Minister, in the
well-known expression, had exercised “properly” the discretion conferred on him
by the Act to “recognize the non-exception” of a contract between related
persons. He therefore had to consider whether the decision was made in good
faith, based on the relevant facts disclosed by a proper hearing, not under the
influence of extraneous considerations. Accordingly, at the outset, at
p. 2 of his reasons, the judge wrote:
The
determination at issue in the instant appeal results from the discretionary
authority provided for by the provisions of s. 3(2)(c) of the Act,
which reads as follows:
…
The
appellant was required to discharge the burden of proof, on the balance of
probabilities, that the respondent in assessing the matter had not observed the
rules applicable to ministerial discretion, and if this could not be done this
Court would not have no basis for intervening.
And finally, his
conclusion at p. 14:
So far
as the appeal is concerned, I cannot allow it as the appellant has not proven
that the respondent exercised his discretion improperly.
14 In fact,
the judge was acting in the manner apparently prescribed by several previous
decisions. However, in a recent judgment this Court undertook to reject that
approach, and I take the liberty of citing what I then wrote in this connection
in the reasons submitted for the Court.
Marceau J.A. then
quoted paragraph 4 of his reasons for judgment in Légaré.
4 At this
point it is sufficient simply to state my understanding of the present state of
the law, which I derive principally from paragraph 4 of Légaré (reproduced
above) and from the following passage from the judgment of Richard C.J.,
concurred in by Létourneau and Noël JJ.A., in Denis v. Canada.
5 The
function of the Tax Court of Canada judge in an appeal from a determination by
the Minister on the exclusion provisions contained in subsections 5(2) and
(3) of the Act is to inquire into all the facts with the parties and the
witnesses called for the first time to testify under oath, and to consider
whether the Minster’s conclusion still seems reasonable. However, the judge
should not substitute his or her own opinion for that of the Minister when
there are no new facts and there is no basis for thinking that the facts were
misunderstood (see Pérusse v. Canada (Minister of National Revenue – M.N.R.), [2000] F.C.J.
No. 310, March 10, 2000).
This Court’s role, as
I understand it now, following these decisions, is to conduct a trial at which
both parties may adduce evidence as to the terms upon which the Appellant was
employed, evidence as to the terms upon which persons at arm’s length doing
similar work were employed by the same employer, and evidence relevant to the
conditions of employment prevailing in the industry for the same kind of work
at the same time and place. Of course, there may also be evidence as to the
relationship between the Appellant and the employer. [See paragraph 5(3)(a)
of the Act and sections 251 and 252 of the Income Tax Act.] In the
light of all that evidence, and the judge’s view of the credibility of the
witnesses, this Court must then assess whether the Minister, if he had had the
benefit of all that evidence, could reasonably have failed to conclude that the
employer and a person acting at arm’s length would have entered into a substantially
similar contract of employment. [Some appeals are brought from the Minister’s
determination that the employee was engaged on arm’s length terms, with a view
to having the employment determined not to be insurable because the employer or
the employee or both of them do not wish to participate in the employment
insurance scheme. I will say nothing about such cases, as different
considerations may apply to them: see C & B Woodcraft Ltd. v.
Canada (Minister of National Revenue) 2004 TCC 477 at paragraphs 9
to 13; and Actech Electrical Limited v. M.N.R. 2004 TCC 572 at
paragraph 17 where two different views of the statutory scheme have been
expressed, both of them obiter dicta.] That, as I understand it, is the degree
of judicial deference that Parliament’s use of the expression “…if the Minister
of National Revenue is satisfied…” in paragraph 5(3)(b) accords to
the Minister’s opinion. [This formulation of the test does not deal with the
possibility of a finding of bad faith or improper motive on the part of the
Minister. This subject has not been addressed in the cases subsequent to Jencan
and Bayside and is no doubt best left until such a case arises.]
Submissions:
[130] Ronnie Gill - agent for Harmit Kaur Gill -
submitted the evidence established the appellant worked on the farm and
performed valuable, necessary work during the relevant periods of each year at
issue in the within appeals. She pointed out that Bernie Keays – Appeals
Officer – considered the wage paid to her was reasonable under the
circumstances and in accordance with industry standards. Ronnie Gill submitted
the method and timing of payment of wages was substantially the same as those
applicable to non-family workers and that Harmit – like other workers – was
subject to the direction and supervision of Hakam Singh Gill. Ronnie Gill
referred to the testimony of Harmit Kaur Gill wherein she provided extensive
details of numerous and onerous duties performed during the course of her
employment in each year and to the evidence generally which substantiated the
nature and extent of those duties. Ronnie Gill submitted the appeal of Harmit
Kaur Gill should be allowed because the Minister had erred in deciding Harmit
Kaur Gill’s employment was uninsurable by virtue of the provisions of subsection
5(3) of the EIA.
[131] Counsel for the respondent submitted there
was no basis upon which the Court would be justified in intervening in the
decision of the Minister because Harmit Kaur Gill had failed to adduce credible
evidence to discharge the burden upon her to demonstrate the Minister had erred
in exercising his discretion under paragraph 5(3)(b) of the EIA
and paragraph 3(2)(c) of the UIA as it applied to that portion of
her employment in 1996 prior to the coming into force of the EIA. The
position of the respondent is that the evidence adduced on behalf of – or
otherwise applicable to – this appellant is not credible in many instances and
is rife with contradictions and inconsistencies, particularly with respect to
the method of transporting workers, the basis upon which picking cards were
issued to workers and numerous other matters. Counsel referred to instances
where the testimony of the appellant – at Discovery – was different from that
given in the within proceedings. Counsel pointed to the fact Harmit Kaur Gill
continued to work at Lucerne during the period she was employed at Gill Farms
and that in June and later in July – during the busy blueberry season – she was
absent for whole days or half-days and during the week of June 14, 1998, had
worked only two of seven days. Counsel submitted this example demonstrated the
appellant’s alleged supervisory duties were not required because that
function was performed by Hakam Singh Gill even though he was working
full-time at the mill or – occasionally – was undertaken by Manjit Kaur Gill
who allegedly had her own full-time duties to perform. With respect to the
evidence relating to pay cheques issued by Gill Farms to Harmit Kaur Gill,
counsel referred to evidence that cast doubt on the nature of the so-called
wage payments to her as the cheques issued to her were deposited into the joint
account – with Hakam Singh Gill – and shortly thereafter, funds were
transferred from that account to the one used by Gill Farms as its business
account. Counsel submitted the banking records of the Gill family demonstrated
there was a reasonably free flow of funds between business and personal
accounts. Counsel submitted the overarching problem with the appellant’s case
was that the overall evidence – including her own testimony – suffered a lack
of credibility and documents – such as payroll records – were unreliable since
they did not reflect the hours actually worked by the appellant. Further,
counsel referred to instances where the appellant apparently worked as a
supervisor during times when there was no work for other workers to perform.
Counsel submitted the evidence adduced by the respondent established the number
of hours purportedly worked by the hourly employees – as recorded in the
payroll records of Gill Farms – was
approximately three times the number of hours required in accordance with
industry standards. Counsel also referred to evidence showing the wage expense
of Gill Farms – for 1998 – exceeded the total revenue generated in that year
and submitted there was no need for the payor partnership to have employed two
full-time supervisors. Counsel submitted the decision of the Minister was
correct and, when viewed in the context of new facts disclosed during the
course of the within proceedings, was reasonable, proper and worthy of
confirmation by this Court.
Analysis:
[132] Unlike the majority of these
cases, in the within proceedings, the respondent did not rely solely on
assumptions of fact pleaded in the relevant Reply, as set out earlier in these
Reasons. Instead, Bernie Keays – Appeals Officer – testified at length with
respect to the facts and circumstances taken into account when arriving at a
recommendation to the Minister’s designate with regard to the insurability of
the employment of Harmit Kaur Gill during the relevant periods in 1996, 1997
and 1998. Keays testified he conducted his review on the basis of the
representations made to him by the appellant and her agent, Ronnie Gill, that
the conditions applicable to the appellant’s 1998 employment were substantially
the same as those during 1996 and 1997. In conducting an examination of the
criteria set forth in paragraph 5(3)(b) of the EIA, Keays stated
he took into account the facts as recited in his Master Report – Exhibit R-1,
tab 3 – pertaining to the overall operation of Gill Farms. Since the first 16
pages of said report were relevant to all appeals in the within proceedings, he
included them in each report pertaining to a specific appellant. His report –
Exhibit R-5, tab 1, pp. 17-19 – dealt specifically with the insurability of the
employment of Harmit Kaur Gill during the relevant periods at issue. Keays
stated he took into account the information gathered by HRDC and the content of
the ruling issued by Harby Rai. In addition, he considered the expert advice
provided by Mark Sweeney, Agriculturist, and reviewed the extensive forensic
audit prepared under the direction of James Blatchford. Keays stated he formed
the opinion that – for several reasons
– wage records were
unreliable and that the financial information gathered by Blatchford
established the farming operation was uneconomical and did not justify the
amount of wage expense incurred. The amount of revenue was insufficient to
cover the labour component of operating costs before taking into account other
usual business expenses. As a consequence of reviewing the material and taking
into account information he obtained through discussions with certain
individuals and from reading the Questionnaires and the material submitted by
Ronnie Gill and Lucky Gill-Chatta of LRS Solutions, Keays concluded the hours
purportedly devoted to the farming operation were grossly inflated. In his
assessment, there was insufficient work subsequent to the end of blueberry
season on September 10, 1998 to justify the continuing employment of Harmit
Kaur Gill until September 26. At various points during the course of the
appellant’s employment, Keays considered the tasks allegedly performed by the
appellant and other workers or those involving supervision – by her – were exaggerated and
represented a serious departure from normal time frames assigned to said tasks
in accordance with industry standards. In the beginning of the 1998 season,
Keays concluded the tasks allegedly performed by the appellant and the extent
of her supervision of other workers was out of sync with industry norms
applicable to preparatory work such as spraying and fertilizing, gathering
dried bushes, working on water pipes and installing the netting.
[133] Keays testified he considered
the remuneration – $9 per hour – paid to Harmit Kaur Gill
was reasonable under the circumstances. However, that view was based on
the premise there was work to be done and he stated it was not reasonable – in his opinion – to pay this amount – or any other – during periods
when there was insufficient work to justify continued employment of a
supervisor or during those early portions of the farming season when no
supervisor would have been required. In Keay’s opinion, an employer dealing at
arm’s length with an employee would not have negotiated a substantially similar
contract of employment pursuant to which there was – in a practical sense – a commitment – tantamount to a guarantee – that the individual would be
employed long enough to qualify for UI benefits at the end of the season.
[134] With respect to the matters of
the terms and conditions and duration of employment, Keays considered the
period of employment in each year was not consistent with the blueberry season.
In his view – based on all the information available to him – the payor
extended the period of employment of Harmit Kaur Gill well past normal time
frames within the industry in order to create employment that would last
throughout the full farming season. Keays testified he considered a non-arm’s
length employer would hire and retain employees in accordance with a
demonstrable need for their services and would not provide a virtual guarantee
of employment without regard to normal labour requirements within the industry.
To Keays, the employment relationship between Harmit Kaur Gill and the
intervenors appeared to be completely inconsistent with the usual prevailing
standards within the agriculture industry, particularly when compared to other
blueberry growers in the Lower Mainland. He considered the employment – as
alleged – was based on the appellant’s needs rather than those of the payor
partnership. Keays did not consider it reasonable that the appellant would be
required to supervise workers during days on which – according to Blatchford’s
forensic audit – there was little or
no work performed.
[135] Concerning the nature and
importance of the work, Keays took into account that Harmit Kaur Gill and her
sister – Manjit Kaur Gill – were allegedly hired to supervise a staff of only 5
people during certain times of the year. The alleged start dates of the
appellant’s employment in the years at issue were June 2, 1996, May 25,
1997 and May 25, 1998. At those times of the year, the material
before Keays led him to conclude there would not have been any need for two
persons to be hired – as supervisors – particularly when there were large blocks of
time during which little or no work was being performed and any tasks actually
carried out could have been directed by Hakam Singh Gill or Rajinder Singh
Gill. In the same sense, the supposed layoff dates for Harmit Kaur Gill were
October 19, 1996, September 27, 1997 and September 26, 1998. Since Gill
Farms grew only blueberries, Keays relied on various documents, including
purchase slips issued by canneries and on information received from growers
within the blueberry industry as well as taking into account the opinion of the
expert – Mark Sweeney – in order to conclude the blueberry season was finished
by September 9, 1998 and in earlier years within a week of that date. As a
result, there was no need for Harmit Kaur Gill to have been employed for more
than a day or two after the end of the picking season. In Keay’s opinion, both
the timing and extent of the duties performed by the appellant were grossly
exaggerated and in view of the financial problems associated with the operation
of Gill Farms since its inception, it did not make economic sense to employ
people under circumstances where they were not needed. In his view, when total
revenue from sale of berries did not cover the wage expense associated with
their harvest, a prudent operator would not have hired the appellant to work
throughout the entire periods as reported in the ROEs issued by Gill Farms with
respect to her employment in 1996, 1997 and 1998. After reviewing all of the
material before him, Keays recommended the Minister decide the employment of
Harmit Kaur Gill was uninsurable because it fell within the category of
excluded/excepted employment within the provisions of the former UIA and
the current EIA.
[136] It became apparent in the course of the proceedings the appellant had
represented – at various stages – that her only job was supervising workers. At
one point – when her agent responded to the
Questionnaire – she maintained she did not supervise
workers. The appellant testified she spent a great deal of time weighing
berries at the weighing station and in view of the number of pickers employed
and the amount of berries harvested during a busy part of the season, that task
would occupy a reasonable amount of time. However, said task – which according
to her evidence at trial occupied several hours per day – was not mentioned as
one of her duties when she was interviewed by HRDC nor was it included in a
description of her duties in the Questionnaire sent to Keays. Harmit Kaur Gill
testified she worked at Lucerne whenever possible because the rate of pay
was $15 per hour and that it was not unusual for non-family workers employed by
Gill Farms to work at other employment in order to earn more money while
retaining their jobs at Gill Farms. She stated that even though she worked a
shift at Lucerne, she was able to perform her duties at
Gill Farms the same day. She described – in considerable detail – the work
required to be done in late May and during the month of June in order to
prepare for the forthcoming blueberry season which is extremely busy,
particularly during the peak period which lasts approximately two months. She
testified she did not perform any tasks on the farm between January and
her start date each year, because they were undertaken by Hakam Singh Gill
during days off from his full-time job. However, once she was hired each year,
she testified there was sufficient work to keep her gainfully employed until
her layoff at the end of the season. Harmit Kaur Gill prepared her own payroll
records and ROEs. She explained that she had created the Daily Log specifically
in response to her perception of a demand issued by Turgeon of HRDC. She
conceded that in preparing this document, she neglected to
include any reference to a worker – Manjit Kaur Sidhu – who
had worked 8 or 8.5 hours a day from May 18 to September 26, 1998 and
stated she was unable to offer any explanation for that omission.
[137] Harmit Kaur Gill testified that, in her
opinion, she had performed a wide range of duties for which she was paid a fair
wage in accordance with industry standards and in keeping with the normal
practice where growers paid wages on an irregular basis until the end of the
season when there was a settling of accounts. She stated Hakam Singh Gill was
not pleased when she left the farm in order to earn a higher hourly wage at Lucerne but she was able to carry out her duties by working
on the farm either before or after a shift. The appellant pointed out she had
always worked at outside employment – while working at
Gill Farms over the course of several years – and
continued to do so in order to earn sufficient money to contribute to the needs
of her family. She stated she did not have to work for Gill Farms in order to
obtain sufficient employment within the agricultural industry in order to
qualify for UI benefits following layoff at the end of each season.
[138] The information before the
Minister was not as extensive as the evidence adduced before me in the course
of this lengthy trial. I heard details of numerous duties allegedly performed
by Harmit Kaur Gill that were never put before the Minister for consideration,
including tasks such as transporting employees, weighing berries and elaborate
descriptions concerning the extent of time required to perform seeming small
tasks – such as cutting off dry branches – during the early part of the farming
season prior to the berries becoming ripe. Also, the appellant had
not informed HRDC nor Rai – Rulings Officer – nor Keays – Appeals Officer –
that she had devoted time to cleaning berries by using a conveyor belt in order
to fill specific orders for high-quality berries to customers selling directly
to fresh-market consumers. In my view, the problem encountered by the appellant
is not the extent of her duties during the blueberry season. I have no doubt
she was very busy indeed during certain periods within that overall time
frame. However, the appellant did not discharge the requisite burden of proof
to justify the duration of her employment – in each year – based on an analysis
of all the evidence. Gill Farms operated a blueberry farm and there
was no need for the appellant to have been employed as early as the last week
of May – in 1998 and 1997 – or on June 2 – in 1996 – nor as late as October 19, September 27 or September 26 in
1996, 1997 and 1998, respectively. The evidence, including the
testimony of the expert – Mark Sweeney – makes it clear that even allowing for
some inefficiencies attributable to an inexperienced, older work force, the
time allegedly allotted to the performance of various tasks was 3 to 5 times
the amount accepted as normal within the industry based on information gathered
over several years from a wide range of growers operating small, medium and
large farms. One must look at the information before the Minister and to all of
the evidence adduced at trial. Certainly, there was an overriding issue of
credibility because of various versions provided earlier with respect to
events. I appreciate it is extremely difficult for the appellant to recall
minute, insignificant, details of repetitive tasks undertaken 7, 8 or 9 years
ago and that farming seasons tend to blur together. However, there seemed to be
a cavalier attitude throughout, as exemplified by the tendency to provide
information to HRDC and CCRA on a need-to-know basis in bits and pieces. Even
during the within proceedings, details of additional duties or tasks emerged
from time to time in order to respond to questions posed by the
appellant’s agent or by counsel during cross-examination or in relation to
questions from the Bench. In several instances, the expansive nature of
the tasks allegedly performed either directly by the appellant or under
her supervision, seemed to comply with Parkinson’s
law in that the time needed to complete said tasks
appeared to equal the period allotted – retroactively – for their completion.
[139] The Minister decided the
appellant – Harmit Kaur Gill – was not employed in insurable employment during
the periods at issue in 1996, 1997 and 1998, because she and the intervenors,
as members of the partnership operating Gill Farms, were related according
to provisions of relevant legislation and the Minister was not satisfied, after
having regard to the criteria set forth in the applicable paragraphs of the EIA,
they would have entered into a substantially similar contract of employment if
they had been dealing at arm’s length.
[140]In the case of Barbara Docherty v. M.N.R., [2000] T.C.J. No 690 ‑ 2000‑1466(EI)
– dated October 6, 2000, I commented as follows:
The
template to be utilized in making a comparison with arm's length working
relationships does not require a perfect match. That is recognized within the
language of the legislation because it refers to a "substantially similar
contract of employment". Any time the parties are related to each
other within the meaning of the relevant legislation, there will be
idiosyncrasies arising from the working relationship, especially if the spouse
is the sole employee or perhaps a member of a small staff. However, the object
is not to disqualify these people from participating in the national employment
insurance scheme provided certain conditions have been met. To do so without
valid reasons is inequitable and contrary to the intent of the legislation.
[141] In the within
proceedings, the overall effect of the evidence was to present a picture of an
employment situation that was seriously at odds with what would be expected of
parties within an employment relationship who were not related. In so stating,
I appreciate the amount of work performed by the appellant and the valuable
services rendered by her to Gill Farms at various times within the relevant
periods during the years at issue. However, I am not at liberty to decide the
matter as though I were deciding it de novo and the structure of the
employment relationship at issue in her appeals was such that I cannot create
new periods of employment in each year that would be reasonable if modified to
conform with the evidence. The issue before me is whether the period of
employment, as constituted and reflected in each ROE issued to the appellant in
each year, is insurable. This appeal – by way of trial – was not a mediation process wherein the goal was to
achieve some middle ground in order to resolve the conflict between the
appellant and the Minister as to an acceptable period of employment in each
year. Instead, it was an appeal of the decision issued by the Minister during
which the testimony of the appellants, intervenors, and several other witnesses
was heard and extensive documentary evidence was received in accordance with
appropriate procedures and rules of evidence applicable to EI appeals. The
subsequent analysis based on that accumulated evidence must be undertaken in
compliance with existing jurisprudence.
[142] There is no
suggestion the Minister’s decision was based on bad faith or improper motive
and I mention these factors only because in earlier jurisprudence they formed
part of the analysis concerning the nature of the Minister’s so-called
discretion.
Conclusion:
[143] Taking into account all the
relevant evidence and – in particular – those
additional facts presented during the trial, I find the decision of the
Minister would not have been different had those facts been known at the time.
Even with the benefit of all the evidence before me and in considering the
credibility of the appellant with respect to certain inconsistencies affecting
important aspects of her testimony and in applying relevant portions of common
evidence to her case, the Minister – acting
reasonably – would not have arrived at any
other conclusion. It is apparent the employment of the appellant during the
relevant periods stated within the ROEs was uninsurable because there is not
sufficient evidence to conclude the intervenors – as members of the partnership operating Gill Farms – and the appellant would have entered into a
substantially similar contract of employment if they had been dealing with each
other at arm’s length.
[144] The decision of the Minister is
hereby confirmed and the appeal is dismissed.
Manjit Kaur Gill:
Relevant Book of Documents: Exhibit R- 8.
Minister’s Decision:
[145] The Minister decided the
employment of the appellant with Gill Farms was not insurable employment during
each of the relevant periods at issue in 1996, 1997 and 1998.
Appellant’s Position:
[146] The appellant maintains she was
employed during each period and had insurable earnings as stated in each ROE
issued by Gill Farms in respect of each period of employment.
Relevant Jurisprudence:
[147] The same principles as
discussed earlier with respect to the appeal of Harmit Kaur Gill are applicable
to the appeal of Manjit Kaur Gill since she is also related to the members of
the payor partnership.
Submissions:
[148] Ronnie Gill submitted Manjit
Kaur Gill had been employed under circumstances that were comparable to those
within the berry industry and that she had worked hard and performed tasks in
the same manner as any unrelated third party charged with the responsibility of
carrying out similar functions in the course of a busy farming season. Ronnie
Gill referred to the fact Keays considered the remuneration of $9 per hour to
have been reasonable in view of the circumstances and that it should have been
clear to the Minister the work performed by the appellant was necessary for the
efficient operation of the farm. In her view, the evidence disclosed payment
had been made to the appellant for her work and that the method followed by the
payor was substantially similar to that followed with respect to workers who
were not family members.
[149] Counsel for the respondent
submitted the appeal should be dismissed as the appellant had not adduced
credible evidence at trial to demonstrate the Minister had erred in exercising
his discretion under paragraph 5(3)(b) of the EIA and paragraph 3(2)(c)
of the UIA. Counsel referred to the testimony of
the appellant wherein she testified – on three separate occasions –
that her start date – in 1998 – was June 15 and that berry picking had begun on
June 25. Although later in her direct examination, the appellant
corrected her start date to May 15, she stated – during cross-examination –
that she and the hourly workers started working at the end of June. Counsel
submitted the confusion in dates was relevant because it established the
appellant had no reason to begin working until at least the middle of June,
1998, since the tasks required to be performed prior to the commencement of the
picking season can be accomplished within a two-week period. Counsel submitted
the whole of the evidence made it apparent the appellant had not begun working
on May 24, 1998 – as stated in her ROE – or on May 25, 1998, the date referred to in the
decision issued by the Minister. Counsel submitted the evidence disclosed the
earlier seasons of 1996 and 1997 were basically the same and there was no
reason for Manjit Kaur Gill to have started work on June 2, 1996 nor on May 25,
1997 because there was no need for her to have been employed at that time,
particularly not in a supervisory capacity at the same time as her
sister – Harmit Kaur Gill – was allegedly performing substantially the
same function. Counsel submitted the appellant’s claim she had been busy
carrying buckets of berries to the weighing station and thereafter to other
locations was not credible because she had not mentioned that task during the
initial interview at the farm on November 3, 1998 nor when completing the
Questionnaire at the rulings stage and that it was only when providing
information to Keays – Appeals Officer – that the appellant’s agent referred to
the appellant having carried berries. Counsel submitted the appellant’s
evidence was not credible and that she attempted during her testimony to add
tasks and duties so as to make it appear as though 15 workers and two
supervisors were needed to operate the farm. With respect to the task of
transporting workers, counsel submitted there were numerous examples of
inconsistencies and that it was strange to note the appellant worked either 8
or 9 hours per day but many of the hourly workers allegedly driven by her
on a regular basis worked either 9 or 10 hours per day. Counsel referred to
evidence concerning certain cheques issued by Gill Farms to the appellant,
including one which indicated the purpose of the cheque was to pay a CIBC Visa statement
of account. In counsel’s view of the matter, there were other instances
disclosed in the evidence which indicated there was a blurring of the lines
between personal and business accounts and personal Gill family expenses and
business expenses of Gill Farms. Further, with respect to pay cheques, the appellant
received them regularly throughout August, September and October and they
were either cashed or deposited shortly thereafter, unlike the method used to
pay non-family workers who – apart from a small advance – did not receive any
cheques until the end of October and even then, some of them were told to hold
off cashing the cheques for another two or three weeks. Counsel submitted the
Minister had considered all of the relevant information and the evidence at trial
further supported the conclusion that the employment of the appellant was not
insurable during the relevant periods at issue.
Analysis:
[150] Bernie Keays testified he
prepared a report – Exhibit R-8, tab 1 – pertaining to the issue of
insurability of the employment of Manjit Kaur Gill. He took into account
relevant aspects of the material applicable to all appellants – as contained in the first 16 pages of the Master
Report – before dealing with the
specific employment relationship between the appellant and the intervenors. He
relied on representations from the appellant’s agent that her duties were
substantially the same during all 3 years under review. In reviewing the
relevant facts, Keays stated he found no significant difference between those
applicable to the appellant and to her sister – Harmit Kaur Gill – whose file
he had also assessed in the course of making a recommendation to the Minister
in respect of the insurability of that employment. Again, he found it odd that
details of extra duties emerged only during representations to him in his
capacity as an Appeals Officer rather than during initial interviews with
HRDC officials or during the meeting at the HRDC office in Langley in May, 1999
where various issues were thoroughly discussed – ove the course of several
hours – with the intervenors and their wives and the farm accountant. Keays
conceded during cross-examination that he had not considered the impact of a
grower having different varieties of blueberries and agreed that since Gill
Farms had not hired workers through a labour-contracting entity, members of the
Gill family had to supervise workers and transport them to and from work,
duties that would have been carried out by the contractor.
[151] Keays testified he considered
the rate of remuneration – $9 per hour – was reasonable – in 1998 – as were other hourly rates paid in 1997 and
1996. Again, he stated his acceptance of this factor was based on the need for
work to be done as he did not consider an arm’s length employer would pay someone
a supervisor’s wage when there was little or no work to be done by a handful of
other workers.
[152] Keays stated he was satisfied
the intervenors had guaranteed the appellant employment throughout a period
that would enable her to qualify for UI benefits without having regard to the
current financial demands and historic economic reality of their farming
business. When advised by the agent for the appellant that it was normal that
hourly workers “ wanted the hours their employer promised them” and that they
refused to go home if there was no work to be done, Keays stated he did not
accept the proposition that an employer – acting at arm’s length with employees
– would permit this practice nor would said employer hire two supervisors to
oversee workers who had little or no work to perform, particularly when the
assertion throughout on behalf of all parties to the within proceedings was
that they were paid by the hour for picking berries rather than by piecework
which was standard throughout the industry.
[153] With respect to the duration of
the employment and the nature and importance of the work, Keays stated his
review of the material led him to conclude the period of the appellant’s
employment during the years at issue was inconsistent with the normal blueberry
season. None of the information available permitted him to accept that it was
reasonable for a prudent employer to extend the time frame applicable to an
ordinary season within the berry industry, particularly when that employer was
not generating enough revenue from the sale of berries to pay for the labour to
harvest them. He considered it was not necessary for Manjit Kaur Gill to have
been employed as a supervisor during the periods set forth in the ROEs issued
by Gill Farms and that – overall – her purported duties had been inflated.
[154] As a result of reviewing the
material, Keays concluded the timing and extent of the duties performed by the
appellant were greatly exaggerated as was the length and duration of her
employment. He recommended the Minister advise Manjit Kaur Gill that
her employment with Gill Farms during the relevant periods in 1996, 1997 and
1998 was uninsurable.
[155] Manjit Kaur Gill testified she
was accustomed to starting work for Gill Farms each season either at the end of
May or in June. She stated she began working for Gill Farms on June 15, 2005
and the blueberry picking season began 10 days later, which was an early start
compared with other years. She recalled that in 1996, 1997 and 1998, she
started working at the end of May or in the early part of June. She described
the preparatory work that must be done in the early part of the season
including the onerous and time-consuming task of installing nets. She stated it
took 5 or 6 people a total of 8 days to install the nets in 2005. With respect
to the 1998 season, the appellant described the process of carrying buckets of
berries to the scale and stated that during those peak periods when 15
hourly-paid workers picked 35 pounds of berries per hour, it occupied a great
deal of her time to transport berries – in 25-pound buckets – to the scale
which was on a 4-wheel cart so it could be moved to different locations. Manjit
Kaur Gill testified she worked very hard at many tasks throughout each period
of her employment and that if she had not performed those duties during the
years at issue, Gill Farms would have been forced to hire someone else. She
pointed out her pay was only $1 or so above the minimum wage paid to other
workers who had no supervisory duties to perform. She stated that from her
perspective, if she had worked at another farm performing more or less the same
duties, her pay would not have been any higher. In her opinion, she was treated
like any other employee and was paid in full for her work in accordance with
the timing of payment normal in the berry industry. Further, when applying for
UI benefits she always disclosed that her husband owned 50% of Gill Farms.
During cross-examination, the appellant conceded that on other occasions she
had stated she started work in June, 1998, but had been confused because
despite having lived in Canada for 33 years, she still referred to months by
their number within the year rather than by their names in English. She
testified she was certain she had started on May 25, 1998, about 6 weeks prior
to the commencement of the picking season. The appellant conceded – during
cross-examination – she had never mentioned to any HRDC or CCRA official – at any stage of the proceedings – that one of her duties was to carry berries to the
scale. She also agreed she had not mentioned – at Discovery – that any pruning had been done at the end of the
season after the nets had been taken down. As for inconsistencies or
discrepancies in the payroll records – whether
her own or pertaining to other workers – Manjit Kaur Gill stated she could not offer any explanation
since Harmit – or her designate, if she was away working at Lucerne – was in charge of keeping those records. However, she
was satisfied that all her work – including time spent transporting workers –
had been properly recorded by Harmit. The appellant stated she had the
impression when interviewed by Turgeon on November 26, 1998, that HRDC
officials believed she had not worked on the farm – at all – and was merely
claiming UI benefits without having a basis of real employment. She stated she
received a T4 slip and paid income tax on her earnings from Gill Farms and
acted throughout the employment relationship as though she were an ordinary
non-related employee.
[156] There were numerous
contradictions and inconsistencies throughout the testimony of Manjit Kaur
Gill; some were to be expected bearing in mind the passage of time while others
were not. It strikes me as highly unusual that one would forget to disclose –
on several occasions over the course of time and at different stages
of the review process – the task of carrying berries, a duty that – apparently
– was one of the most onerous and time-consuming. However, it is not the busy
part of the picking season that casts doubt on the validity of the employment
of the appellant for purposes of the EIA. Instead, it is the duration of
the purported employment in each year and the nature and importance of the work
performed throughout said periods. The evidence permits one to draw the
reasonable inference that the appellant started work about June 15 and was
finished by September 12, 1998. That period would accord with the relevant
evidence pertaining to the length of the working season normally applicable to
a blueberry farm. With respect to 1996 and 1997, the evidence does not support
the contention that the appellant’s employment was required as early as the end
of May – or on June 2nd – and should not have endured until September 27, 1997
and certainly not until October 19, 1996 as there was no evidence Gill Farms
grew any late-bearing varieties that year, and Manjit Kaur Gill confirmed no
late-ripening blueberry crops had been grown in 1998. During the busy season in
each year, I accept she worked hard while performing various tasks but there
were other periods within that larger time frame in which it was superfluous
for her and her sister to have been performing supervisory duties during times
when little or no picking was done. In that sense, the hours entered in the
payroll records were inflated in the sense they are unreasonable within the
context of the evidence relating to the operation of a blueberry farm. I accept
that the appellant had the responsibility of preparing payroll records, ROEs
and numerous cheques for signature by Hakam Singh Gill and Rajinder Singh Gill
and that she dealt with the requisite paperwork as it pertained to employees,
including herself and that she was the liaison between the intervenors and the
farm accountant.
Conclusion:
[157] I cannot find any error in the
methodology employed by Keays in undertaking a review of her employment in the
course of discharging his function as an Appeals Officer with respect to the
issue of the insurability of her employment. Taking into account the extensive
evidence before me – documentary and otherwise – including the lengthy
testimony of Manjit Kaur Gill, I cannot conclude the decision of the Minister
would – or should – have been any different if all the evidence before me had
been available to him prior to issuing the decision. An examination of all of
the relevant information bearing on the central issue does not permit a
rational conclusion that the employment of the appellant with Gill Farms would
have been substantially similar if she and the intervenors had been dealing with
each other at arm’s length.
[158] The decision of the Minister is
hereby confirmed and the appeal is dismissed.
Non-Related Appellants
[159] The first issue to be decided
with respect to this group of appellants is whether they were paid on the basis
of piecework for picking berries rather than on an hourly basis.
[160] The Minister assumed in the
various Replies to the Notices of Appeal that they were remunerated on an
hourly basis. Each appellant testified they were paid on that basis to pick
berries instead of by piece rate which was the method used to pay those pickers
who were described as casual workers. However, there was a substantial body of
evidence supporting the view that the appellants – like all other workers in
the berry industry in the Lower Mainland – were paid on the basis of piecework.
With respect to this point, Ronnie Gill – agent for the appellants and intervenors – asserted there was a clear distinction between the two types of
workers and while Gill Farms did employ pickers on a piecework basis it also
employed a core group of steady workers throughout the season who were
compensated on an hourly basis for all duties performed, including picking. The
position of the agent was that there were two categories of pickers based on
the need for Gill Farms to produce and market a high-quality product in order
to attract top price and to offer workers an opportunity to be employed
throughout an entire season at a reasonable wage rather than having them work
intermittently which would force them to seek supplemental, temporary work at
other farms or with a labour contractor. In view of the steady growth over the
years in the gross revenue and net profit of Gill Farms due to a variety of
factors including an increase in the price of berries, Ronnie Gill submitted it
made good economic sense for Gill Farms to have followed that practice in order
to build a reputation as a top producer within the industry. She also referred
to the evidence of Manjit Kaur Gill that hourly pickers harvested the Blue Crop
variety because there were less ripened berries on the plants and there was a
higher potential for spoilage. The pieceworkers were not interested in picking
those berries because of the lower amount of production per day.
[161] The position of counsel for the
respondent is that all pickers were – and are – paid on a piecework basis within the industry and it defied logic
that Gill Farms paid their pickers on an hourly basis when the evidence of
experts in the industry and the facts revealed by the forensic audit made it
clear no grower could afford to pay pickers on any other basis other than a
certain amount per pound.
[162] The evidence of the appellants
and intervenors on the issue of piecework vs. hourly rate is not credible. The
blueberries are sold at a price ranging from 65 to 90 cents per pound to
canneries, and at $1.25 per pound to the fresh market or at a roadside stand.
The theory that these alleged hourly workers had to be remunerated on that
basis is completely out of step with reality. I do not accept the evidence
offered by various appellants that they were provided with picking cards only
now and then for the purpose of monitoring their so-called average production
in order that the operators of Gill Farms could assess their productivity. The
explanation offered by Hakam Singh Gill regarding the rationale for issuing
picking cards to selected workers from time to time does not make sense. It was
also difficult for Harmit Kaur Gill to maintain a consistent explanation concerning
the practice of distributing picking cards and it was painfully apparent that
the attempt to bolster the proposition that employees within one group were
paid on an hourly basis to pick berries was predicated on a faulty premise
completely unsupported by the overall weight of relevant evidence. The entire
industry operates on the basis that the free market will determine the price
per pound. Sweeney, the expert witness who is a berry specialist, testified
that hand-harvesting is a time-consuming farming operation and that in the
course of his long service with the Ministry, he had not encountered any
situation where growers paid pickers on a piecework basis except when
harvesting berries for a highly specialized market in which case it would not be
worthwhile for a picker to be paid on a basis other than an hourly rate.
Sweeney testified the only farming duties paid on an hourly basis within the
industry are related to weeding, spraying, mowing, fertilizing and installing
and removing nets. Overall, labour costs are high in proportion to revenue and
many growers have turned to mechanized picking in order to reduce costs. Since
1997, the price of blueberries has risen significantly and growers’ profits
have increased provided other costs are kept in check. Charan Gill is the
Executive Director of PICS and testified as an expert in the area of farm
labour practices in British
Columbia. He
stated that in 25 years he has never encountered a situation where a grower
paid berry pickers other than on a piecework basis. He described a project
operated by PICS whereby that organization attempted to change attitudes within
the industry as well as previous efforts by the CFU to place unionized workers
in fields. In his opinion, most berry pickers in the Fraser Valley earned about $5 per hour when
averaged out over the entire berry season. In the course of undertaking
research on the subject of farm workers, he ascertained that berry pickers in British Columbia were paid by piecework as far
back as 1901. In his experience, a picker who works 10 or 12 hours in a day
will earn $60 based on the prevailing piecework rate. The common practice
followed by growers is to take that amount and convert it to hours worked, by
dividing the sum by the current minimum wage plus holiday pay. As a result,
even though a worker has picked berries for 12 hours, the $60 earned in
accordance with the applicable piece rate will translate into a 7.5 or 8‑hour
day depending on the amount of the hourly minimum wage mandated by current
provincial legislation. The result of this conversion process is that it does
not reflect the actual hours of work performed in a day. With respect to 1998,
Charan Gill considered it would have been difficult for any picker to
harvest more than 200 pounds of blueberries per day during the peak period
and during the early part of the season and at the end, the number of pounds
picked per day is often 100 pounds or less. In his opinion, a competent
picker is able to earn the equivalent of the minimum hourly wage for about two
weeks during a season that lasts from 6 to 8 weeks depending on the
varieties of berries grown. Charan Gill related the experience gained by him
and others at PICS when it decided to operate a labour contracting business as
a method by which to test the long-held theory that it was economically
feasible to pay pickers an hourly wage instead of by piecework. That noble
experiment was a failure and the PICS-operated contracting entity lost money
for both years it was in business. Charan Gill testified that EI rules were
changed so as to require a worker to accumulate more insurable hours in order
to qualify for UI benefits and that led to certain persons within the
berry industry selling ROEs to workers so they could receive said benefits.
Also, certain employers issued ROEs stating exaggerated hours of work allegedly
performed during a certain period of employment in order that workers
– who paid money for these false records – could receive UI benefits over the
winter. Charan Gill stated that in his experience only apple pickers in the Okanagan Valley could earn more than a minimum hourly wage for their
efforts during an 8-10 hour day. He was not aware of any picker who had earned
the equivalent hourly minimum wage while picking strawberries, raspberries or
blueberries. Charan Gill testified there were 108 labour contracting entities
operating in the Lower Mainland in 2005. He stated he was not aware of any
contractor that paid workers an hourly wage for picking and that all picking
was on the basis of piecework. Charan Gill is a blueberry grower and operates a
4.5-acre farm. He stated his opinion that it was not possible to pay pickers an
hourly wage and still earn a profit and that it was not economically feasible
to buy a picking machine unless the farm had at least 20 acres of blueberries.
When berries were selling for $1 per pound and the piece rate for picking was
40 cents, often there was not sufficient money remaining to cover other
operating expenses. Charan Gill acknowledged that some farming tasks are
remunerated on an hourly basis and that workers are hired to perform
various duties early in the season in order to attract them so they will remain
for the entire season. However, once the preparatory tasks have
been completed, the hourly wage disappears and – thereafter – the payment for picking berries will be made according
to the prevailing piecework rate established by the provincial government or
somewhat higher depending on the circumstances. Bernie Keays testified he
consulted with various persons in the blueberry industry and concluded payment
to pickers based on a set piece rate was the norm. Claire Turgeon
testified that in her experience at HRDC, blueberry pickers are always paid on
piece rate and not by the hour. In 1998, the legislated minimum piece rate for
blueberries was $.312 per pound and the minimum wage was $7.15 per hour.
[163] I find that all the appellants
in the within proceedings were remunerated on the basis of piecework for
picking blueberries for Gill Farms in 1998. In the case of Kang v. Canada (Minister of National Revenue
– M.N.R.),
[2005] T.C.J. No 19, 2005 TCC 24, I arrived at the same conclusion with respect
to the basis for paying berry pickers. In that case, the expert evidence
together with the testimony of growers and some workers satisfied me that the
only rational means of payment to pickers was by piecework in accordance with
standards within the industry. The Kang case involved a contractor
corporation that supplied workers and acted as an intermediary between the
farmer and the workers. In that case, the growers paid the contractor by the
unit and subsequent sale of berries to customers was based on either flats for
strawberries and raspberries or pounds for blueberries. In the within
proceedings, there is some evidence Gill Farms paid 30 cents per pound but
whatever the actual rate, it was utilized to calculate gross earnings so that a
payroll record could be created for each worker by converting those sums into
equivalent hours per day at the minimum wage plus applicable holiday pay rate
at 4% or for some appellants 7.6%. This finding that all appellants were paid
on a piecework basis will form part of the analysis undertaken hereafter with
respect to each appellant in the course of arriving at a decision applicable to
his or her appeal.
Effect of the Forensic Audit
[164] Ronnie Gill – agent for the appellants and intervenors – submitted
the forensic audit report by Blatchford did not take into account the
additional berries that had been sold but not accounted for due to the absence
of corresponding receipts. Based on the testimony of Hakam Singh Gill and
others, she submitted the evidence demonstrated Gill Farms had sold additional
berries that were not taken into account by Blatchford when preparing his
schedules. According to the totals calculated by Blatchford, the so-called
hourly workers – characterized as employees in Exhibit
R-17, schedule 11 – picked 30,611 pounds in July while the pieceworkers –
referred to by Blatchford as contract pickers – harvested 9,718 pounds for
a total of 40,329 pounds. According to Schedule 12, the total amount picked by
all pickers – in August – was 46,082 of which 34,854 was picked by the alleged
hourly workers and – in September – these workers picked 632 pounds. Ronnie
Gill stated the appellants and intervenors accepted Blatchford’s calculations
were accurate with respect to sales to Greenfield, Universal, Kahlon and those
recorded in the cash receipt book provided to him but had not taken into
account those to stores in the Vancouver area, nor at the roadside stand on
Gill Farms property, nor to Hamilton nor those in the Kelowna area many of
which had not been recorded since they were for cash and buyers had not
requested a receipt. She referred to the testimony of Rajinder Singh Gill who
estimated Gill Farms made between 12 and 15 trips to take berries to
various retail outlets in the Greater Vancouver area during the season and that
the average delivery was 1,200 pounds. Ranjinder Singh Gill also described a
cash sale of berries to Hamilton. From her perspective after
analyzing Blatchford’s report, Ronnie Gill submitted it was reasonable to
conclude that an additional 36,750 pounds of berries had been produced – and
sold – for a 1998 season total of 102,846 pounds. However, it appears she did
not take into account the 20,946 pounds allocated to the contract pickers
during July and August. In any event, Ronnie Gill’s position is that the amount
picked by the hourly workers was within the ranges recognized within the blueberry
industry with respect to pounds picked per hour. She also referred to evidence
of time spent by Harbans Kaur Khatra cleaning berries on the conveyor belt –
with Harmit Kaur Gill – in order to ensure shipments
of top-quality berries to the fresh market did not contain green berries, twigs
or other debris. Ronnie Gill referred to the acknowledgment by Blatchford
during his testimony that he had assumed both Harmit and Manjit picked berries
every day along with the other hourly-paid workers. That assumption was adopted
by Keays when arriving at his recommendations to the Minister on which the
decisions affecting the appellants and intervenors were based. As a result of
that erroneous conclusion, Ronnie Gill submitted there was a significant
difference and that the remaining 13 pickers should each be credited with
having picked – in total – 15% more berries once Harmit and Manjit were
excluded from the methodology used by Blatchford.
[165] Counsel for the respondent
submitted the analysis of Blatchford was reasonably accurate even though it was
predicated on the theory that both Harmit Kaur Gill and Manjit Kaur Gill
were full-time pickers throughout the season. Counsel referred to figures
introduced in evidence from the sales slips to the canneries and to the fact
Blatchford had taken into account cash sales – in the sum of $5,190.95 – as recorded in the receipt book provided to him by the
Gill family. Dividing that sum by $1.25 – the average price of berries sold by
Gill Farms at fruit stands – results in an additional 4,131 pounds for total
production of 88,432.5 pounds in 1998. Based on the testimony of Sweeney,
that amount is consistent with an above average yield for an 8-acre blueberry
farm. Counsel submitted there was no reliable evidence upon which to base a
finding that further berry sales had occurred particularly in light of the
information included within the 1998 income tax returns of the intervenors that
total berry sales were $73,712. Since the total of the sales to the canneries
and the other cash sales was $67,093.83, the difference between those two
numbers was $6,618.17 and any extra sales not accounted for by Blatchford would
not be in excess of that amount because the evidence of intervenors was that
all sales – regardless of source – were reported to the farm accountant and
accurately reported in the partnership financial statement. Assuming the extra
cash sales were to grocers or fruit stands and the average price was $1.25 per
pound, that would account for only 5,295 pounds of berries not otherwise
factored into Blatchford’s calculations. Counsel referred to Blatchford’s
testimony in which he indicated the addition of approximately 5,000 pounds to
the total would add less than 100 pounds per day to the total pounds picked by
those workers categorized as employees and would amount to a few pounds per
person. Counsel referred to the example provided by Blatchford in the course of
his testimony where he chose August 18, 1998 as an example. That day, if Manjit
and Harmit were removed from the equation, the amount picked by each remaining
worker would increase from 27 pounds to 30.6 pounds or approximately 15%.
However, on those days where production of berries had to be expressed in a
negative number, the increase per worker – excluding Manjit and Harmit – would
still result in a negative amount. Counsel referred to the testimony of various
appellants which established that Manjit Kaur Gill picked some berries during
the season as did Hakam and some of the Gill children from time to time. Those berries
were not factored into Blatchford’s audit since there were no payroll records
kept for them and even though there is no measurement available, the position
of counsel is that any contribution made to the overall harvest by members of
the Gill family would decrease the average pounds picked by each hourly worker
during the season. Counsel submitted the forensic audit established the amount
of berries picked by hourly workers was extremely low and it was unreasonable
for people to have allegedly spent full days doing little or no work on certain
days during picking season. Counsel submitted the evidence that several workers
were devoting time to tasks other than picking berries during the busy season
was simply not credible in the face of the expert testimony of Sweeney who
stated it was highly unlikely that any spraying of herbicides was undertaken
during the growing season or that nets were mended at that time. In addition,
any time spent by a worker taken from the field to work on the berry-cleaning conveyor
belt would be insignificant and would have only a negligible effect within the
context of Blatchford’s calculations for the entire season.
Analysis:
[166] It is apparent Blatchford
prepared his report on the basis that 15 full-time pickers – including Harmit
and Manjit – plus the casual workers picked
87,880 pounds of berries. That amount is based on the total pounds delivered to
Kahlon, Universal and Greenfield in July, August and September
and includes those sales recorded in the receipt book provided to him by the
Gill family. Those amounts were 40,329, 46,082 and 1,469 pounds, respectively.
The total pounds picked as referred to by counsel for the respondent in written
submissions was 88,432.5 based on the same data but with the notation that some
of the pounds attributable to cash sales in the receipt book had to be
estimated by assuming the price per pound was $1.25. The difference is not
significant and I will use the total of 87,880 based on Blatchford’s schedules.
By subtracting the amount picked by the hourly employees, one obtains the
amount picked by the casual or contract pickers – paid by piecework – which is
20,946 pounds based on Blatchford’s numbers as expressed in the Schedules,
Exhibit R-17, tabs 11, 12 and 13. Therefore, the hourly employees picked 66,934
pounds of berries. Leaving aside for the moment any unknown amount picked by
members of the Gill family, only 13 full-time workers harvested that total. As
a result, instead of each hourly worker having picked 4,463 pounds during
the season, he or she picked 5,140 pounds, a difference of 687 pounds. If
between 15 and 20 pounds per hour was the average picked, that would amount to
an additional 45.8 to 34.3 hours per worker during the season based on the
records available to Blatchford. I am satisfied on the evidence that any berry
picking by Manjit Kaur Gill was infrequent and mainly for the purpose of
quality control and to ensure berries were not left on the bush to rot and to
interfere with the ripening of green berries. The amount picked by
Hakam Singh Gill was not substantial and the Gill children –
like most children and young adults – probably ate about as much as they
picked, which was not often and only for brief periods as an interesting
diversion with which to amuse themselves. I do not see any point in paying too
much attention to those few days in which there appeared to be a negative
number of berries produced since one has to look at the big picture which is
comprised of those figures with respect to the total production for the season.
However, those days of negative production may play some role when arriving at
a decision for each appellant in the event that individual was not working
during one or more of those days.
[167] Excluding Manjit Kaur Gill and
Harmit Kaur Gill, the numbers in Blatchford’s report demonstrate that 8
so-called hourly-paid pickers (employees) picked a total of 30,611 pounds of
blueberries in July for an average of 3,826 pounds per person. Even using
the modest amount of 175 pounds picked per day, per person, that amounts to
less than 22 days work per person and if one uses the 200-pound per day average
production per picker, that results in 19 days work per month out of a total of
31 days. In August, 13 workers in the employees group picked 34,854 pounds or 2,681
pounds per person. Using a production rate of 175 pounds per person, per
day, each picker would have been required to work only 15.3 days. At 200 pounds
per person, per day, there was less than 13.5 days work for each picker in
August. In September, 12 persons in this same group picked 632 pounds of
berries for an average of 52.6 pounds per person, about 1 to 1 1/2 days
work at this point in the season when the picking is poor as very few berries
remain on the plants. It is obvious the amount of hours allegedly spent by
workers in this category was grossly inflated and that the entries in the
payroll record of each worker who picked berries are notoriously unreliable.
[168] I am prepared to accept the
evidence adduced on behalf of the intervenors that Gill Farms produced an
additional 5,295 pounds of berries that Blatchford could not have taken into
account because he had no information in that regard. The intervenors were
adamant they had reported all revenue from the sale of berries to their
accountant and that said amounts were included within the financial statement
which formed part of the individual income tax returns of both Hakam Singh
Gill and Ranjinder Singh Gill for the 1998 taxation year. There were casual
pickers throughout the season and they picked – as a category of workers – 24%
of all berries harvested according to the numbers used in Blatchford’s report.
Therefore, 76% or 4,024 pounds of those additional 5,295 pounds of berries
was attributable to the efforts of between 8 and 13 workers described therein
as hourly employees. In addition to the sales reflected in Blatchford’s audit,
that means each hourly worker picked an additional 310 to 500 pounds
(numbers rounded off) of berries in the course of the season assuming – for the moment – he or she worked throughout July,
August and in September until the season was over.
Conclusion:
[169] In my opinion, it is reasonable
to recognize that the amount of berries picked by each hourly worker should be
increased by 687 pounds – as discussed in the preceding paragraph –
and by the extra 309.5 pounds which – after
rounding up – amounts to a potential extra 1,000 pounds per worker for the
entire season. That could result in additional insurable hours of employment
within the range of 50 to 67 additional hours – based on a
picking rate of 15 to 20 pounds per hour – for an appellant who picked berries throughout the season.
However, rather than dealing with relatively small adjustments on an individual
basis day by day. If I increase the amount of insurable hours worked and
insurable earnings of each non-related appellant by 15%, I am satisfied it will
conform to the overall context of the evidence, including an assessment of
various factors discussed earlier, provided there are no other factors relevant
to a specific appellant that requires a departure from the application of that
formula. There is no reliable mechanism by which to arrive at a precise number
in each case. However, I am satisfied an across-the-board increase of 15% to picking
time already recognized by Keays in the course of formulating an alternative
position on behalf of the Minister, adequately reflects the extent of the
variation demanded by taking into account the whole of the evidence.
Amount Allocated by the Minister for Specific Farm
Tasks
[170] Ronnie Gill submitted the
evidence established Gill Farms had to deal with several problems that were
unusual in the sense they would not conform to the so‑called average time
frames based on information gathered by the Ministry of Agriculture and as
relied on by Sweeney in his report. She referred to the testimony of various
witnesses including Hakam Singh Gill concerning the origin of the blueberry
farm which had once been totally seeded to grass. As a result, there was an
ongoing problem with grass requiring additional weeding by workers using hoes
and by spraying chemicals, an operation undertaken by Hakam during a
period before any of the appellants were employed. In addition, there was
a problem with blight which required dry branches to be trimmed. The irrigation
system – in 1998 – was not sophisticated and required extra maintenance.
Ronnie Gill referred to evidence concerning the amount of time required to
install and remove the netting and, because the system was not new, sections of
the net needed repair, wires had to be tightened, hooks replaced, and poles had
to be either straightened, secured or replaced. She pointed out the appellants
were mainly inexperienced in this task and most were at an age where it was not
easy to climb up and down ladders and install or remove netting material within
the framework of an older, inefficient system. Ronnie Gill submitted it was not
appropriate to apply industry averages to the performance of certain tasks when
there was sufficient direct evidence on the point to satisfy the Court that the
operation of Gill Farms required additional hours of labour in order to carry
out its farming business in 1998, including spreading of sawdust mulch to
control weeds.
[171] Counsel for the respondent
submitted the number of hours reported on the ROE of each appellant was
inflated. As a result, even while conceding the existence of insurable
employment by the non-related appellants with Gill Farms, the Minister
found the number of insurable hours worked – and insurable earnings – were
considerably less than those stated in the ROEs. Counsel referred to the
evidence of Keays – Appeals Officer – during which he explained how he perused
the representations made on behalf of the appellants and intervenors with
respect to the time needed to perform certain tasks on the farm in 1998.
Subsequently, Keays consulted with industry experts and third parties in the
berry industry and analyzed relevant information with regard to determining
whether the time estimates provided on behalf of the appellants were
reasonable. Based on that analysis, Keays concluded those estimates were
unreliable and created a calendar for each worker. For each day a worker was
alleged to have worked, he credited that worker with the number of hours on his
or her time sheet as recorded by Harmit Kaur Gill, provided there was reason to
conclude there was work to be performed that day. Counsel referred to Keays’
testimony – explaining his methodology – wherein if he was able to come to the conclusion it was
reasonable for a certain number of workers to have been weeding or performing
some other task on a certain day, then he credited each of those workers with
the number of hours entered on the time sheet whether it was 7, 8 or 9 hours.
Counsel submitted this method was fair and reasonable to the workers under the
circumstances. With respect to specific tasks, the position of the respondent
is that the hours allegedly devoted to gathering dried branches or bushes were
exaggerated and did not conform in the slightest to the average time required
in accordance with industry standards. In the submission letter sent by LRS on
behalf of the appellants, the assertion was that 8 workers spent 8 days
gathering dried bushes between May 25 and June 1, 1998. In Keays opinion, that
was unreasonable and did not conform to industry norms so he allotted one day
of work to each worker and made a corresponding entry to the calendar of each
appellant. The submission on behalf of the appellants was that it took 7
workers 11 days to complete the hoeing. Keays reduced that time to 2 days for
each worker based on information received from Sweeney, a Director of the BC
Blueberry Council and two blueberry growers in the area. According to LRS, 7
workers spent 3 days dealing with the irrigation system during which they
performed several tasks. Counsel pointed out there was not a lot of evidence
offered to Keays at the appeals stage concerning the nature of those duties and
that – like much of the evidence offered by the appellants and intervenors
– other details emerged at trial for the first time. Overall, counsel was
skeptical of the number of problems allegedly encountered by Gill Farms in 1998
particularly in light of the position that the yields were substantially above
average. The position of the respondent is that the timing of these
complications is suspect and that none of the various exceptional challenges
encountered by the farm was offered as an explanation for the huge amount of
hours expended by employees, except in bits and pieces during the course of the
trial, including explanations of the poor state of the watering system as
related by Hakam Singh Gill in the course of his re-direct examination at
trial. Counsel submitted it had never been explained satisfactorily why Gill
Farms considered it was reasonable to spend more money on wages than it was
able to gross from berry sales. Counsel referred to the submission by LRS that
7 workers took 2 weeks to put up the nets and 9 workers spent 7 to 9 days
taking them down. The amount of time allotted to this task – by LRS – was
between 1,270 and 1,415.5 hours. For his calculation, Keays used the average
time of 36 hours per acre as set forth in the Ministry guidelines – effective in 1998 – although that number was
subsequently revised to 15 hours per acre in 2001. He did not credit the two
supervisors – Harmit Kaur Gill and Manjit Kaur Gill – with any time spent
installing and removing nets. Instead, he multiplied 36 (hours) by 8 (acres)
for a total of 288 hours which he considered was reasonable to attribute to the
tasks of both putting up and taking down the nets. Counsel pointed out that –
at trial – Sweeney stated his opinion that the allowance of 36 hours per
acre for this task was generous and that this estimate was derived from
consultations with many growers – small and large – all of whom installed the
netting system by hand since there was no mechanized means of doing so. Counsel
submitted LRS had not submitted any estimates of time devoted to picking
blueberries. As a result, Keays developed a method whereby he could allocate
hours of work to appellants on certain days. Based on Blatchford’s report,
Keays used a threshold of 10 pounds of berries per hour because any lesser
amount would cost Gill Farms more to pick than the farm would gross in sales
based on the assertion by the payor partnership that the workers were being
paid between $7.50 and $8.00 per hour plus holiday pay. Keays’ approach was to
allocate to an appellant the hours entered on the payroll record only if
production that day averaged out to at least 10 pounds per hour for all members
within the employee group comprised of the so-called hourly‑paid workers.
Counsel submitted there were no picking cards nor any other basis for allocating
hours to the appellants and that the approach undertaken by Keays was fair and
reasonable under the circumstances. Counsel referred to the LRS submission that
9 workers spent 8 days pruning bushes in September and to Keays’ rejection of
that assertion on the basis it was patently unreasonable. Keays concluded it
was appropriate to credit each appellant who performed that task with one day’s
labour according to the hours noted on his or her time sheet. The position
advanced on behalf of Gill Farms and the appellants was that it took 9 workers
one day to wash buckets and lugs. Keays rejected this as being highly
improbable and credited no time at all to this task because of Sweeney’s
opinion that this task could have been performed by one worker in about one-half
day. Keays had been provided with information on behalf of Gill Farms that new
plants were planted in September, 1998 which required 128 hours of labour.
Keays relied on information from Sweeney that it would take only 2 minutes to
plant each replacement and that 200 plants would occupy – in total – only 5.6
hours.
Analysis:
[172] Keays testified he considered
it necessary to follow a course of action mandated by certain provisions of the
EI Regulations as follows:
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, where there is doubt or lack of specific knowledge on
the part of the employer as to the actual hours of work performed by a worker or
by a group of workers, 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.
…
[173] Paragraph 2(1)(a) of the
Insurable Earnings and Collection of Premiums Regulations reads:
2.(1) For the
purposes of the definition “ insurable earnings” in subsection 2(1) of the
Act and for 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. (emphasis added)
[174] In those instances where there
was work performed that ordinarily would be remunerated on an hourly basis and
where there was an entry of hours worked in the payroll record of a particular
appellant, Keays accepted that work had been done which was attributable to a
particular task. However, when it came to calculating the hours of work
performed by appellants who picked berries, he had no access to picking cards
that had been issued in their names. The circumstances of the employment of the
appellants were such that Keays considered the time records prepared by Harmit
Kaur Gill were unreliable and not reasonable under the circumstances. As a result,
he followed the intent of the Regulations, including subsections 10(3)
and 10(4) and calculated a number of hours of insurable employment that was
reasonable based on an examination of the terms and conditions of the
employment and a comparison with the number of hours normally worked by persons
performing similar tasks within the berry industry. Keays then divided the
amount of hours assigned to each appellant by the amount of the wage shown on
the payroll record including the appropriate rate of holiday pay to which that
worker was entitled. If there was any doubt, Keays used the 1998 minimum hourly
wage and 4% holiday pay in order to calculate the total earnings for each
appellant’s period of employment. One problem with this method is that subsection 10(5)
limits the number of hours worked –
calculated in accordance with the preceding provisions – to 35 hours per week unless the evidence establishes overtime or
excess hours were worked. In 1998, that limit for farm workers was 120 hours in
a two-week period and there is no evidence adduced before me to find that any
overtime hours were worked by any appellant.
[175] Subsection 10(4) of the Regulations
relied on – in part – by Keays prescribes the calculation to
obtain the number of hours of insurable employment which results in a number
the worker is deemed to have worked “during the period of employment”. It is
ascertained by dividing the total earnings for the period of employment by the
applicable minimum wage. The effect of subsection 10(5) is to limit that
attribution of deemed insurable hours to 7 hours per day up to an overall
maximum of 35 hours per week unless there is evidence that overtime or excess
hours were worked. The evidence before me was that labour legislation in British Columbia – in 1998 – did
not consider overtime hours to have been worked unless the limit of 120 was
breached within a two-week period. I think it is safe to assume those
subsections of the EI Regulations were drafted with the intent they
would apply to the type of work performed within the berry industry. It is
reasonable to conclude the words and phrases used therein such as “during the
period of employment”, “total”, and “overall maximum”, as well as the reference
to overtime or excess hours – in the context of establishing a limit of
35 hours per week – were intended to apply to the total period
of employment. The limit of 7 hours per day may not permit a carryover to
another day but the language of these provisions –
taken in combination and in accord with their purpose –
permits recognition of up to a maximum of 35 hours per week during the period
of employment. However, on any day within a 7-day week, a worker cannot acquire
more than 7 hours insurable employment. As a result, in those cases where an
appellant was picking berries in September, although not many pounds, and in
view of the fact Keays allowed credit for some pruning work, the actual date of
the end of work within that first week or so is not critical unless the 35-hour
per week limit, when multiplied by the number of weeks of employment, has been
exceeded. Therefore, if a person worked a total of 10 weeks, the maximum number
of insurable hours that can be recognized in accordance with subsections 10(4)
and 10(5) of the Regulations is 350. In my opinion, those provisions do
not prohibit an accumulation within the overall period of employment that may
result from working 48 hours in one week – less than 7 hours per day for 7 days
– and 22 hours the next, for a total of 70 hours
in two weeks and to continue – more or less – in
that manner throughout the relevant employment period. It does not make sense
to regard these provisions in any other way because even though drafted by
someone working in an office in Ottawa, they were intended to apply to a workplace
like the berry industry where hours are long, unpredictable and subject to
variations caused by weather and the state of the crop to be harvested. As a
result, if increasing the insurable hours attributable to picking berries or
other tasks exceeds the 35-hour limit in a particular week within the framework
of the calendar designed by Keays, I do not consider that to be a problem because
the assignment of hours to an appellant –
based on having worked certain days within a week – was
arbitrary. In accordance with his methodology, Keays intended to recognize that
an appellant had performed a certain number of hours of work within a certain
time frame. He utilized – as a matter of convenience – the payroll record
created by Gill Farms in order to credit appellants with work done on certain
days within that period in accordance with subsection 10(3) of the Regulations,
which requires an examination of the terms and conditions of the employment and
a comparison with the number of hours normally worked by people in the berry
industry. By so doing, Keays credited each appellant with a specific number of
insurable hours attributable to the performance of a specific task or within a
category – such as picking – during the course of the entire berry-harvesting season.
However, Keays did not attribute any insurable hours to any appellant on any
day in which the total amount of berries harvested by the group of so-called
hourly-paid employees was less than 10 pounds per person, per hour, based on an
8-hour day. The evidence established that during the latter part of the season,
berries are sparse and although the volume is much less, the remaining berries
are still picked even though daily production is often under the amount set by
Keays as the threshold for awarding insurable hours. When Keays was performing
his duty as Appeals Officer, he was proceeding on the basis the appellants had
been remunerated on an hourly basis for picking since that was the consistent
thread of the information presented to HRDC officials and to Rai – Rulings
Officer – and to him. The fact is that all workers were paid on a piecework
basis for picking berries and even if – as an example –
some picked only 50 pounds in a day in order to earn approximately $15, they
were still working. According to Charan Gill, the practice within the industry
is for employers to convert that amount earned – calculated from the picking
cards – into hours by dividing it by the
applicable hourly minimum wage. Using the example, a worker would be
credited with 2 hours work – at $7.50 per hour – for that day’s production of 50 pounds. Keays did not have any picking
cards at his disposal so had to develop a system based on an amalgam of
subsections 10(3) and 10(4) in order to recognize the appellants had provided
services to Gill Farms at various times within the overall period of their
employment.
[176] I have undertaken an analysis of these
provisions because when I decide these appeals on a case-by-case basis, one or
more appellants may be affected when I increase – by 15% – the number of insurable hours attributable to picking and/or when
allocating extra hours for tasks associated with the nets and the irrigation
system. Although at this point I doubt it will arise, it is possible a
resulting number could exceed the total allowable number of insurable hours per
week within the period of employment, particularly if it was for only a few
weeks. As discussed earlier, the allowable number of insurable hours – in total
– cannot exceed 35 hours per week. Therefore, the
allocation of hours for picking berries –
based on subsection 10(4) – when combined with hours credited for other tasks
in accordance with subsection 10(3), could exceed that limit.
[177] It is apparent from the whole
of the evidence that the time sheets, payroll records and the Daily Log are not
reliable. There are many instances where one or more of these records purport
to show a person working 8 or 9 hours in a day – or during a week – when they
were working elsewhere or out of the country. The records show that appellants
who rode to work and back home in the same car for several weeks worked a
different number of hours on many days. Husbands and wives who allegedly worked
together every day, had individual records that did not support this contention.
Farm work is not the same as office work where there is not a lot of rainfall
inside most buildings. Nor do files ripen at various times except in a
figurative sense and for many workplaces both within and outside the public
sector, there is no peak season. Therefore, it is unreasonable to expect that
any farm worker on a berry farm would work exactly 8 hours a day over a long
period of time. It is reasonable to expect that the hours spent in the field
would increase as the days grew longer and more berries were ripe. The
variation in hours allegedly worked by most appellants is rarely – if ever –
more than one hour between the very early part of the season and the absolute
peak when the canneries are operating around the clock. There were entries on
behalf of appellants indicating they had worked a full day during times when
the only reasonable conclusion to be drawn from the overall weight of the
evidence is there was little or nothing to be done. The Daily
Log did not include the hours worked by a worker who – allegedly – was there nearly every day for several months.
According to the Gill family, the log was prepared to satisfy a demand by
Turgeon, which she denied. In my view, said log – for the most part – was
fabricated in order to create an illusion that time records had been maintained
on a regular basis and in an orderly, businesslike manner. One would be
forgiven in asking why Keays placed any reliance on the time sheets and Daily
Log in order to allocate a certain amount of insurable hours of work to the
appellants in the course of carrying out his duty as an Appeals Officer. The
answer lies in an appreciation of the adage: Even a broken clock is right twice
a day. Of course, one must assume this timepiece is in the analog category.
Keays admitted that his methodology, as applied to each appellant consisted of
a “rough and ready” formula he invented to carry out his function to the best
of his ability under the circumstances.
[178] In my view, the course of
action followed by Keays was completely reasonable. The unreliability of time
sheets and other similar records does not render them completely valueless.
When viewed in the context of the body of evidence – expert and otherwise –
relating to farming practices within the berry industry, said records proved –
on occasion – to have some useful purpose but clearly the hours stated therein –
overall – were not reasonable in the
circumstances and Keays was compelled to observe the method of determining
insurable hours of employment and insurable earnings pursuant to the Regulations.
[179] In assessing Keays’ methods
within the context of all the evidence, the only areas of endeavour by the
appellants that strike me as worthy of re-examination are those pertaining to
the installation and removal of netting and the irrigation system. With respect
to other tasks referred to in the course of the submissions of Ronnie Gill
and counsel for the respondent, I cannot find any reason to deviate from the
methodology employed by Keays. Although Keays did not have the benefit of
testimony from witnesses, the evidence before me does not lead me to conclude
that the estimates of time for the performance of certain tasks as asserted on
behalf of the appellants and intervenors are credible. The time allegedly spent
by them for the completion of tasks including gathering dried bushes, hoeing
and weeding, pruning or trimming, washing buckets, repairing nets and planting
new bushes is totally unreasonable and does not conform with reliable evidence
in respect of reasonable farming practices within the berry farming industry.
[180] Returning to the matter of the
nets, Keays did not have the benefit of observing the appellants and hearing
them describe this task. I appreciate the industry average of 36 hours per acre
included information from a wide range of farming operations but in order to
establish that average there must have been some farms above that number and
some below. Some may have been way above average and some way below. That is
the reason why when presenting statistics, it is a more reliable – and
meaningful – source of information to
establish a median in that one could see how many growers were above that
36-hour dividing line and compare it with those who accomplished that task in
less than the mean time and to what extent. The workers were not young, mainly
over 45 years of age and the task of installing and removing the netting was
painstaking and slow, particularly when many workers were inexperienced not
only in that task but in farm work generally, and especially as it pertained to
a berry farm. The net system was old and there was a certain amount of repair
required at the outset to parts of it including poles and wires. Manjit Kaur
Gill testified that in 2005, it took 5 or 6 workers 8 days just to install the
nets. Assuming 5 people each worked an 8-hour day for 8 days, that amounts to a
total of 320 hours. According to current Ministry standards, it should have
taken a total of 15 hours for each of the 8 acres of crop, for a total of 120 hours
– per season – to erect the nets and take them down. Assuming the time
allocated to installation and removal is to be apportioned equally, the time
spent by Gill Farms – in 2005 – to put up the nets was more than 5 times the
current industry average and there is no reason to believe their methods were
any more efficient in 1998.
[181] Hakam Singh Gill testified
about the irrigation system. It was a system that had been created by the Gill
family and it utilized old drippers which had to be replaced by cutting a hole
in the hose and re-inserting a new one rather than just threading a replacement
into an outlet. According to Hakam, it had taken 3 days to get the irrigation
system functioning – in 1998 – because water from a ditch was not clean and
dirt and other particles had been sucked up into the pipes and plugged the
drippers. The system had been created several years earlier and was working
fairly well in 1998, except for that particular problem early in the season. It
may be his recollection is correct but in view of the ever-present tendency by
those individuals operating, managing or working for Gill Farms to inflate the
amount of time required to perform various tasks, I am reluctant to accept this
assertion that 3 days were devoted to this task. Based on the limited
information in front of him on this point, I have no quarrel with Keays’
opinion that an allocation of one day per worker was adequate. However, in view
of the evidence before me and having acquired an extensive knowledge of the
operation of Gill Farms in the course of this trial, I am satisfied that more
than one day’s work by each of 7 workers was required in view of these special
circumstances and the quasi-obsolescent state of the system.
Conclusion:
[182] The impact of the evidence
leads me to find it is reasonable to double the amount of time allocated to the
performance of all tasks pertaining to the netting system. However, based on
the inherent unreliability of much of the evidence including testimony by the
appellants with regard to this and other tasks, that is the limit of the
variation. Therefore, this calculation (doubling) will be factored into the
specific decision – where relevant – applicable to each appellant and – without
more – the time allotted by Keays to an appellant for putting up nets or taking
them down or performing both tasks will be doubled. Keays included pruning at
the end of the season within the allocations of time pertaining to taking down
the nets without assigning any specific amount of time to said task. I do not find
any reason to deviate from this categorization but the result of doubling the
hours with respect to tasks performed with respect to the netting will include
all pruning work because the evidence does not support any need to add hours
specifically attributable to that task. In my opinion, Keays was generous in
allocating one day’s work to each appellant – where relevant – for pruning. In
order to demonstrate once again that no good deed goes unpunished, by doubling
the amount of insurable hours allocated to tasks associated with the nets, that
charitable allocation by Keays is subsumed therein.
[183] With respect to the work
undertaken with respect to the irrigation system, I find it reasonable to
allocate 2 days work to each of the 7 workers who performed this task.
[184] In both instances, when an
additional day of work is credited to an appellant, it will constitute 8
insurable hours regardless of the number entered in the individual worker’s
time sheet for a day – or days – within that time frame during which the
relevant task was performed.
Surinder K. Gill: Appeal 2002- 2116(EI)
Relevant Book of Documents: Exhibit R-7
Respondent’s Position:
[185] The Minister has conceded that
the appellant was employed in insurable employment with Gill Farms in 1998 and
that she worked 114 insurable hours and had insurable earnings in the sum of
$919.98.
Appellant’s Position:
[186] The appellant asserts she was
employed from July 26 to September 12, 1998 during which period she worked 260
insurable hours and had insurable earnings of $2,098.20.
Analysis:
[187] The appellant testified she was
still working at the Lucerne cannery after starting her
employment with Gill Farms. She testified she was able to work a shift at the
cannery and at the farm on the same day as she did not require much sleep
during the relatively short period within a busy farming season as that was her
only opportunity to earn money. Keays discovered an entry in the appellant’s
payroll record for August 15, 1998 stating she had worked from 9:00 a.m. to
approximately 5:00 p.m., the same hours as those entered on her time sheet in
respect of her shift that day at Lucerne cannery. The appellant agreed this entry by Gill Farms
was in error as well as those indicating she had worked at Gill Farms during
days when she was in England. Keays did not accept that the
appellant could work one shift – or equivalent – at Gill Farms and another
shift at Lucerne on the same day. As a result,
on the calendar at Exhibit R-7, tab 1, pp. 21-24, he did not allocate her any
insurable hours for work done at Gill Farms on August 13 and August 15, 1998
even though the payroll entry showed 8 hours for each of those days.
[188] The appellant testified she had
been remunerated by the hour for picking berries. I have already rejected that
notion as advanced on behalf of all appellants and the intervenors. The
appellant testified the only work she performed for Gill Farms was picking
berries. Throughout, there were many other occasions where it was apparent the
appellant was not telling the truth including with regard to matters such as
the use of picking cards or details concerning her work schedule at Gill Farms.
The appellant’s interview with Turgeon was not taped, as she alleged. Certain
banking transactions were not satisfactorily explained and the appellant did
not comply with an undertaking to produce records with respect to a particular
account. Her excuse for this non-compliance was not plausible. The payroll
record for the appellant is not credible and is of little comfort to anyone
attempting to rely on entries thereon for the purpose of calculating insurable
hours worked. Keays testified he was well aware that using the payroll records
of Gill Farms was a “rough and ready” method but felt he had no option since
there were no picking cards available nor any other record of hours worked. In
light of all the difficulties inherent in the evidence, an educated guess
produces the best result. I accept the appellant’s evidence that she was
capable – in the short term – of working at two jobs on the same day.
Therefore, I am prepared to restore credit for 8 hours worked each day on
August 13th and August 15th for a total of 16 hours. Added to the number of
insurable hours – 114 – already accepted by Keays, the result is 130. Since the
appellant did not do any work other than picking blueberries, there is no other
adjustment required in respect of certain tasks. Therefore, I need only to
apply the 15% increase to her insurable hours and insurable earnings –
including holiday pay of 7.6% – in accordance with the
methodology explained previously in order to arrive at the appropriate numbers.
The appellant was in England for the first week of
September, 1998. During that time, 12 of her co-workers picked only 632 pounds
of berries or 52 pounds each. That amount is so insignificant, there is no
point in factoring it into the equation so as to deny the appellant the benefit
of the full 15% increase to picking time that applies to all appellants who
performed the same task at some point during the season.
Conclusion:
[189] I find the appellant was
engaged in insurable employment with Gill farms from July 26 to September 12,
1998 and that she worked 149.5 insurable hours and had insurable earnings in
the sum of $1206.46.
Harbans Kaur Khatra:
Relevant Book of Documents: Exhibit R-4.
Respondent’s Position:
[187] The Minister has conceded that
the appellant was engaged in insurable employment with Gill Farms in 1998 and
that she worked 254 insurable hours and had insurable earnings in the sum of
$1,981.20.
Appellant’s Position:
[188] The appellant asserts that she
was employed from July 12 to September 12, 1998 and during said period worked
652 insurable hours and had insurable earnings in the sum of $5,085.60, as
stated in her ROE.
Analysis:
[189] The appellant testified she
arrived in Canada – from India – in 1997 and found work as a farm labourer with
the Virk family prior to obtaining employment as a berry picker for Gill Farms
later that season. In 1998, she returned to work for Gill Farms and testified
that although she picked berries, she also worked on the conveyor belt sorting
and cleaning berries. She testified she was paid an hourly wage for all her
work and explained that as a competent picker she could pick as much as 400 to
450 pounds per day which would permit her to earn approximately $150 based on
the applicable piece rate at that time. She stated it was probably the reason Gill
Farms paid her the hourly rate of $7.50 for an 8-hour or 9-hour day. The
appellant testified she helped to take down the nets at the end of the season
and also spent some time pruning and spreading sawdust around the base of
plants and that the last task performed prior to layoff was washing buckets.
There is no other evidence to support the appellant’s contention that – in 1998
– she could pick 400 to 450 pounds per day even during the peak season while
harvesting berries from those varieties that were easy to pick and known for
their high yield. The weight of the evidence suggests a picker could pick about
200 pounds per day during the height of the season which in the case of
blueberries lasts at least 6 weeks. On occasion, an exceptionally competent
picker might attain 300 pounds in a day for a few days. Harbans Kaur Khatra
denied using a picking card in order to support her contention that she had not
been remunerated on the basis of piecework. She also insisted that her
interview with Emery at the HRDC office had been taped and that her rights were
violated as a result. I reject that evidence and note it is not possible for
her to have been confused about that issue. Instead, she chose to make that
allegation believing that any taping would – somehow – be an infringement of
some right to the extent that a remedy might be unearthed which could end her
troubles with HRDC and CCRA. On November 12, 1998, two days before the
appellant deposited her final pay cheque from Gill Farms, she withdrew $2,000
in cash from her bank account. She also waited a considerable length of time
before cashing her last pay cheque prior to making said withdrawal. There is
insufficient evidence for me to find that the appellant paid money back to any
member of the Gill family in return for her ROE. However, as in this instance,
there was a pattern of deposits and withdrawals by several appellants in the
within proceedings for which unsatisfactory explanations were provided that
caused officials in HRDC and CCRA to suspect there had been transactions
designed to facilitate the issuance of an ROE to a worker that would permit
that individual to qualify for UI benefits even though the threshold of minimum
insurable hours for that particular worker had not been obtained legitimately
in the course of his or her employment.
[190] Keays found it difficult to
believe the appellant worked 8 or 9 hours a day ‑ 7 days per
week – during the course of her employment, particularly when there was not
enough work to go around according to the information he had obtained from
various sources. As a result, he accepted the hours entered in the appellant’s
payroll record for those days when she picked berries and the overall
production of the group had been sufficient for him to accept that work had
been done. He also allowed her 3 days work – totaling 26 hours – for taking
down nets and pruning on the basis those tasks had been performed on September
10, 11 and 12. Keays concluded the appellant had worked a total of 254
insurable hours of which 228 must have been attributable to picking berries
according to the entries on the calendar in Exhibit R-4, tab 2, pp. 29-32. In
keeping with my earlier finding with respect to work done to install and remove
the nets, I note the appellant was involved only in taking down the nets since
they were already up when she started work. However, she is entitled to have
her time doubled for that task in accordance with the formula devised earlier.
As a result, she will receive credit for 52 hours work in respect of the task
of taking down nets and pruning. In accordance with the formula, the
appellant’s picking hours – 228 – are increased by 15% – to 262 – and her insurable earnings – including
holiday pay of 4% – will be increased accordingly.
Conclusion:
[191] The appellant – Harbans Kaur
Khatra – was engaged in insurable employment with Gill Farms from July 12 to
September 12, 1998, and during said period worked 314 insurable hours and had
insurable earnings in the sum of $2,449.20.
Gyan Kaur Jawanda:
Relevant Book of Documents: Exhibit R-12
Respondent’s Position:
[192] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
she worked 333 insurable hours and had insurable earnings in the sum of
$2,597.40.
Appellant’s Position:
[193] The appellant maintains the
information stated in her ROE is accurate and that she was employed from May 25
to September 26, 1998 during which period she worked 942 hours and had
insurable earnings in the sum of $7,347.60.
Analysis:
[194] The appellant came to Canada
from India in 1998. Her first job was
working at Gill Farms. In India
she had never been employed away from the family farm. The appellant
could not recall much about the work she did for Gill Farms and when
interviewed by Harby Rai – Rulings Officer – stated she had worked alone –
picking blueberries – the first 20 days of her
employment. She also told Rai that during peak season there were about 30
workers picking berries of which only 5 to 7 were full-time. She also told Rai
she was picked up by Rajinder Singh Gill and rode to work with him alone. The
appellant later denied making those statements but I am satisfied there was no
confusion on the part of Rai who recorded those comments by the appellant. Rai
is fluent in spoken Punjabi and the entire interview was conducted in that
language in the appellant’s residence. Rai typed up her notes of the interview
and dropped them off at the appellant’s home so Baljit – her daughter – could
translate the contents into Punjabi before the appellant signed the last page
in order to acknowledge the contents were accurate. Later, Baljit telephoned
Rai to state the appellant had recalled that she worked one week picking
strawberries in Langley because Gill Farms sent her
there to perform that work for another farmer. The appellant told Rai
she was paid a piece rate for picking berries and an hourly rate for performing
other tasks. During the appellant’s cross-examination, certain
statements made by her – at Discovery – indicating she was unsure whether she
was paid on an hourly basis were put to her and she acknowledged her wages may
have been calculated on the basis of pounds but was not concerned since she
assumed Gill Farms had calculated correctly her remuneration. The appellant
gave several versions about being transported to and from work at various
stages in the review process commencing with the HRDC interview, followed by
the interview with Rai, the Questionnaire provided to Keays, and subsequently
at this trial. She was not able to explain the various versions except to say
that on occasion her brain was not functioning properly. The evidence of both
Harmit Kaur Gill and Manjit Kaur Gill was that the appellant was one of the
workers who lived in Abbotsford and rode together with other workers from that
area. According to the appellant, she worked almost every day for nearly 3
months. On December 23, 1998, the appellant deposited the sum of $4,153.33 to
her account and withdrew $3,500 in cash which she testified was used for
household expenses and to buy a computer for one of her children. The appellant
denied paying any money back to any member of the Gill family in relation to
her employment with Gill Farms.
[195] Keays testified that in
preparing his report in respect of the employment of Gyan Kaur Jawanda – Tab
1 – he allocated certain hours to certain tasks as entered in the calendar – pp.
21-24. Although the appellant had referred to several different tasks
allegedly performed during her first week of work, Keays was willing
only to credit her with 8 hours work for one day spent gathering dried
bushes. He acknowledged her efforts – in June – hoeing and weeding – 8 hours – working on the water pipes for the irrigation system –
8 hours – and putting up nets – 32 hours – for a total of
56 hours. Following the rationale based on the Blatchford report and
other relevant information – as previously explained by Keays in his
testimony – he accepted that the appellant had worked 146 hours in July – and another 100 hours in August – picking berries. In
September, Keays allocated 3 days work – totalling 24 hours – to the task of taking down nets and
pruning. Keays concluded there was evidence upon which to find the appellant
had worked 333 insurable hours during the course of her employment and had
insurable earnings in the sum of $2,597.40 based on an hourly rate of $7.50
plus holiday pay of 4%.
[196] I cannot accept the appellant’s
evidence that she worked the first week picking strawberries on another farm
after having been loaned out by Gill Farms. There is no other cogent evidence
to support that contention and the appellant’s evidence overall is not
trustworthy for several reasons. She appears to have a terrible memory and
changes her story at will depending on the circumstances. Her only interest was
in receiving an ROE upon which she could base her claim for UI benefits
following layoff and thereafter gave whatever answers she thought would help
her to retain those benefits. With respect to the remainder of tasks performed
in the course of her employment with Gill Farms, I am utilizing the formula
applicable to eligible appellants within the non-related worker category. The
appellant is credited with an additional 8 hours work on the irrigation system.
Since she participated in putting up and taking down the nets, the total
amount of time – 55 hours – allocated by Keays for work
done in June and September will be doubled to 110. Keays decided the appellant
had worked picking berries for a total of 246 hours in June and July. In
accordance with the methodology established earlier, that amount will be
increased by 15% to 283 hours. To summarize, I have allowed her an extra 8
hours for working on the irrigation system, 55 extra hours for working on the
nets and an additional 37 hours for picking berries for a total of 100 hours in
excess of that acknowledged by Keays in his report to the Minister. Her
insurable earnings based on an hourly rate of $7.50 per hour and holiday pay of
4% will be increased accordingly.
Conclusion:
[197] The appellant – Gyan Kaur
Jawanda – was engaged in insurable employment with Gill Farms from May 25 to
September 12, 1998 and during this period worked 433 insurable hours and had
insurable earnings in the sum of $3,377.40.
Himmat Singh Makkar:
Relevant Book of Documents: Exhibit R-9
Respondent’s Position:
[198] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
he worked 72 insurable hours and had insurable earnings in the sum of $599.04.
Appellant’s Position:
[199] The appellant asserts he was
employed from August 3 to August 28, 1998 and during said period worked 160
insurable hours and had insurable earnings in the sum of $1,331.20.
Analysis:
[200] During his HRDC interview with
Emery, Himmat Singh Makkar explained his rate of pay for picking berries at
Gill Farms was by piece rate and provided the example “100 lb. = $30”.
Obviously, he was being remunerated at 30 cents per pound which was below
the minimum of 31.2 cents set by provincial regulations. At trial, the
appellant testified he was paid by the hour for picking and that he
misunderstood the question when giving this answer at his interview. He
testified that sometimes picking cards were issued but during the HRDC
interview he stated cards were issued every day to each worker and that no
workers were paid an hourly rate. The time sheets prepared by Gill Farms state
the appellant worked exactly 8 hours per day during his employment. During his
interview with Harby Rai, the appellant stated both he and his wife worked 7
days per week but at trial he testified he worked 5 days a week and his wife
worked 7. The payroll records indicate he worked 5 days a week. At various
stages of the process, the appellant gave a different version of his work hours
and none of these matched the entries in his payroll record as prepared by Harmit
Kaur Gill as part of her job at Gill Farms. During his HRDC interview, the
appellant described his duties including removing the rolled-up netting from
the fields. Since the nets were not removed until near the end of September and
picking was still being carried out when he was laid off on August 28, this
explanation did not – and does not – make
sense. At trial, Himmat Singh Makkar stated he had helped out his wife – and other workers – to roll up the nets because she was still in the field when he arrived
early to pick her up and drive her home. Like much of what the appellant had to
say in the course of his testimony, this is not credible. He testified that he
had driven a tractor to spray grass even though he had not mentioned that task
to Emery. He also said he washed buckets and larger containers, as
required, and used a needle and thread to repair – now and then – holes in the net. The appellant received two pay
cheques from Gill Farms. One – dated
August 9, 1998 – was in the sum of $200 and the
other – dated October 26, 1998 – in the sum of $742.09 was not deposited until
November 17. He stated he had been told by Harmit Kaur Gill not to
negotiate the cheque until instructed. On October 31, 1998, he withdrew $2,200
from his bank account. His wife – Santosh Kaur Mikkar – was not laid off by
Gill Farms until September 26 and her final cheque was dated October 26.
It was deposited to the appellant’s account on November 14, 1998, two weeks
after the $2,200 cash withdrawal.
[201] Keays prepared a calendar –
Exhibit R-9, tab 2, p. 26 – for the month of August and allocated a total of 72
hours work to the appellant for picking berries. Because the payroll record for
the appellant indicated he was paid $8.00 per hour, Keays used that figure –
plus holiday pay of 4% – to calculate insurable
earnings in the sum of $599.04. The only adjustment called for on the evidence
relevant to this appeal is to increase the allowable hours – attributable to
picking berries – by 15%. His insurable earnings
– including holiday pay of 4% – are varied accordingly.
Conclusion:
[202] The appellant – Himmat Singh
Makkar – was engaged in insurable employment with Gill Farms from August 3 to
August 28, 1998 and during this period worked 83 insurable hours and had
insurable earnings in the sum of $690.56.
Jarnail Kaur Sidhu:
Relevant Book of Documents: Exhibit R-11.
Respondent’s Position:
[203] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
she worked 325 insurable hours and had insurable earnings of $2,535.00.
Appellant’s Position:
[204] The appellant asserted the
information set forth in her ROE accurately stated she was employed from May 25
to September 26 and during this period worked 942 insurable hours and had
insurable earnings of $7,347.60.
Analysis:
[205] After arriving in Canada in 1996, the appellant worked
for only one week before she was injured in an automobile accident which
prevented her from working in 1997. She began working for Gill Farms on May 25,
1998 and testified her first tasks involved digging holes for the replacement
of poles for the nets and spreading gravel around the base to steady them. She
described other tasks such as removing grass, spreading sawdust, cutting off
dry branches and repairing some wires used to hold up the nets. She stated she
worked with two or three other women to install the nets and that all workers
were supervised by Harmit Kaur Gill and Manjit Kaur Gill who also worked with
them. She worked taking down the nets at the end of the season and while she
could not recall the precise amount of time required to put up and remove the
nets, stated it was a time-consuming and sometimes frustrating procedure. The
appellant testified she and Harbans Kaur Khatra usually rode together
both to and from work. The time sheets prepared by Gill Farms indicate they
worked together 77 days but for 49 of those days, the appellant worked either
one or two hours less than Khatra. The appellant was unable to explain this
discrepancy except to say her son “sometimes” picked her up and drove her home
and that the payroll records of Gill Farms were probably not correct. The
appellant testified that although she was given a picking card, it was not
every day. During her HRDC interview – with
Turgeon, on January 19, 1999 – less than 4 months after her layoff on September 26, 1998, she
stated she had received a picking card every day she worked and that the cards
were in duplicate, one for her and one for the employer. The appellant told
Turgeon, “We had to return the cards when we were going to be paid.” During the
interview with Rai – Rulings Officer – the appellant said she was paid on an
hourly basis and when providing information to Keays in the Questionnaire,
stated she received a picking card from Harmit every day but did not use it. At
trial, the appellant testified her answers to Turgeon were not correct and “did
not know what came out of my mouth,” apparently because she was upset. There
was a cash withdrawal of $2,300 shortly before her final pay cheque was
deposited to her account. It is apparent the appellant is not credible with
respect to many issues. Obviously, she was paid on a piecework basis for
picking blueberries and used a picking card so her daily production could be
recorded. She is extremely vague about what other duties she allegedly
performed in the latter part of May and in June except working to install the
netting.
[206] Keays testified he allocated
certain hours to the appellant as entered in the calendar – Exhibit R-11, tab
1, pp. 21-24 – in the course of pursuing the
alternative position in the event a subsequent decision found her employment to
have been insurable. He accepted she had worked one 8-hour day gathering dried
bushes on May 25 and that she had worked 16 hours hoeing and weeding during the
first two days in June. Later that month, he credited her with working 8 hours
on the water pipes and allocated 4 days – 32 hours – for putting up the nets. He allotted a total of 246
hours for berry picking in July and August. With respect to the time involved
in taking down the nets and pruning, he credited the appellant with 23 hours
work ending on September 12 since he had formed the opinion there was no work
for her to perform after that date.
[207] In accordance with the formula
previously developed, the following variations will be made to Keays' findings.
The time allocated (55 hours) for putting up and taking down the nets is
doubled – to 110 – and 8 hours is added to her
insurable hours in respect of work performed on the irrigation system. The
amount of hours allotted to picking will be increased by 15% from 246 to 283.
The insurable earnings will be increased accordingly, based on an hourly rate
of $7.50 plus holiday pay of 4%.
Conclusion:
[208] The appellant was employed in
insurable employment with Gill Farms from May 25 to September 12, 1998 and
during said period worked 425 hours and had insurable earnings in the sum of
$3,315.00.
Gurdev Singh Gill:
Relevant Book of Documents: Exhibit R-3.
Respondent’s Position:
[209] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
he worked 108 insurable hours and had insurable earnings in the sum of $871.56.
Appellant’s Position:
[210] The appellant relies on the
information contained in his ROE that he was employed from August 2 to
September 12, 1998 and during said period worked 324 insurable hours and
had insurable earnings in the sum of $2,614.68.
Analysis:
[211] The appellant's testimony with
respect to several aspects of his employment with Gill Farms was rife with
contradictions when compared with statements he made earlier with respect to
the same subject matter. His description of being driven to and from work and
the number of passengers in the vehicle changed between the time of his HRDC
interview, then within the Questionnaire sent to Keays and subsequently at
trial. Gurdev Singh Gill testified he was paid an hourly rate to pick
berries and that he had chosen this method of remuneration rather than
piecework even though it had been offered – as an option – by Hakam Singh Gill. He
stated picking cards were issued but not every day, nor were berries weighed every
day. At Discovery, the appellant stated he and his wife – Surinder Kaur Gill –
shared a picking card and when the full container was handed over to Manjit
Kaur Gill, she weighed it and marked down the amount under their family name.
At trial, the appellant asserted he and his wife had separate picking cards –
when issued – and that he must have misunderstood the line of questioning with
respect to this issue during Discovery. During the HRDC interview, he told
Turgeon he was given a picking card for each day and that his name was written
on the card. He described it as “being like an attendance, they wrote the start
& finish time”. At trial, the appellant attempted to explain he meant his
start and finish times were recorded each day but not necessarily on a picking
card. Throughout, like all other appellants, he stuck to his story that he was
paid an hourly rate for picking berries rather than a piece rate. During his
testimony, the appellant stated he had helped take down the nets but had not
been involved with their installation since he started working for Gill Farms
on August 2. However, when he was interviewed – in Punjabi – by Harby Rai on
August 19, 1999, he described how he assisted to put up the nets and proceeded
to tell Rai that he and other workers replaced old poles and had to climb a
ladder in order to unroll the nets. He told Rai the nets were put up “first” to
prevent birds from eating the crop and then he picked blueberries. Rai
testified that when the appellant was telling her this story it did not make
sense since the nets had been installed in June. As a result, she went over
that subject matter with him three times and each time the appellant maintained
he had worked installing the nets. At trial, Gurdev Singh Gill offered the lame
– albeit inventive – excuse that Rai was not very proficient in Punjabi and was
unable to appreciate the appropriate sense of the verb which is capable of
meaning both “putting up” and “taking down”. It is obvious from the context of
the entire discussion between the appellant and Rai that he was not confused
and intended to convey the impression that part of his duties at Gill Farms was
to assist in installing the nets. During his HRDC interview, the appellant stated
he worked 7 days a week.
[212] Keays – in developing the
rationale for the Minister’s alternate position – examined the relevant data
applicable to Gurdev Singh Gill and prepared a calendar – Exhibit R-3, tab
1, pp. 23 and 24 – on which he credited the appellant with certain hours of
work in accordance with the methodology he developed as a template for the
non-related workers. He allocated 81 hours to picking berries in August and
allowed a total of 27 hours during three 9-hour days in September attributable
to taking down nets and pruning. In the event the appellant was found to have
been engaged in insurable employment, Keays decided he had worked 108 hours
and had insurable earnings in the sum of $871.56 based on an hourly rate of $7.50
and holiday pay of 7.6%.
[213] Based on the evidence relevant
to the appellant and in accordance with the formula, the amount of insurable hours
accumulated while picking berries is increased – by 15% – to a new total of 93. As
decided earlier with respect to tasks associated with the netting system, the
allocation for work done in this regard is doubled from 27 hours to 54. The
appellant’s insurable earnings will be increased accordingly.
Conclusion:
[214] The appellant was engaged in
insurable employment with Gill Farms from August 3 to September 12, 1998 during
which period he worked 147 insurable hours and had insurable earnings in the sum
of $1,186.29.
Santosh Kaur Makkar:
Relevant Book of Documents: Exhibit R-10.
Respondent’s Position:
[215] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
she worked 117 insurable hours and had insurable earnings in the sum of
$912.60.
Appellant’s Position:
[216] The appellant asserts she was
employed from August 2 to September 26, 1998 and during said period worked 421
insurable hours and had insurable earnings in the sum of $3,283.80.
Analysis:
[217] Earlier in 1998, the appellant
had been employed at Berry Haven/Penny’s Farm. She testified that when laid off
from that job, she learned Gill Farms was looking for pickers. She and her
husband – Himmat Singh Makkar – were both hired the same day and worked
together until he was laid off on September 12. In compliance
with an undertaking at Discovery, the appellant signed a statement – Exhibit R-10,
tab 1 – in which she admitted she and her husband had been issued picking cards
during the course of their employment at Gill Farms and that they were handled
by her husband but were no longer available and had probably been lost in the
course of several moves to new residences. During her testimony, the appellant
maintained she was paid by the hour for picking berries even though picking
cards were issued – every day – to her and her husband. The appellant testified
that sometimes her husband finished work earlier than her – by 30 to 45 minutes
– but he sat and waited for her so they could ride home together. The
timesheets prepared by Gill Farms indicate both the appellant and her husband
were credited with exactly 8 hours for each day of their respective employment
periods. After blueberry season ended, the appellant described various tasks
she had performed such as cutting off dry branches, spreading sawdust, washing
buckets, removing dry grass and spreading sawdust – by hand – around the roots
of the blueberry plants. She stated several of these tasks were performed in
the course of the same day and was unable to recall the names of any
individuals who participated in these tasks except Harmit Kaur Gill, Manjit
Kaur Gill and Hakem Singh Gill. She explained that because she was employed for
only a short period, she had not made friends with other workers. The appellant
estimated she picked between 200 and 250 pounds of berries per day and that her
husband picked about 200 pounds. She did not know why her husband was paid
$8.00 per hour rather than the $7.50 rate paid to her nor did she know why Gill
Farms laid off her husband while she continued to work an additional two weeks.
The position of counsel for the respondent was that the evidence of certain
transactions in respect of the appellant and her husband permitted the
inference to be drawn that a cash withdrawal of $2,200 from their account had
been for the purpose of paying money back to the Gill family in order that the
appellant could obtain her ROE. At the HRDC interview, the appellant denied
having paid any money back to the Gill family in respect of her employment but
then added – gratuitously – that when she worked at Penny’s Farm, her son would
work there but she was given credit – on her ROE – for his hours.
[218] The appellant’s testimony lacks
in credibility in many respects. Obviously, she was remunerated by piecework
and used picking cards to record her production. On the other hand, when she
described several tasks having been performed the same day during a period
following the end of berry season, she was probably accurate and certainly more
in sync with the overall opinion of Keays – as expressed in his report – as to the nature of the work actually
done at this point in the season.
[219] Keays – in preparing his report
with respect to the appellant and her husband – wrote “[T] he worker and
her husband’s statements and answers lack any credibility. It’s impossible to
know what the truth is in this case”. In allowing for the possibility the
appellant’s employment might turn out to have been insurable, Keays created a
calendar – Exhibit R-10, tab 2, pp. 27 and 28 – in which he allocated 96 hours
for picking berries in August and 21 hours in September attributable to
taking down nets and pruning. He calculated her insurable earnings – including
holiday pay at 4% – were $912.60.
[220] Applying the formula with
respect to picking time, the appellant’s hours spent at that task will be
increased – by 15% – from 96 to 110 and the time
credited for taking down the nets will be doubled from 21 hours to 42. As a
result, the total insurable hours are increased to 152 and the appellant’s
insurable earnings are increased accordingly.
Conclusion:
[221] The appellant was employed in
insurable employment with Gill Farms from August 3 to September 12, 1998 and
during this period worked 152 insurable hours and had insurable earnings of
$1,185.60.
Surinder Kaur Gill: (Appeal 2002-2115(EI))
Relevant Book of Documents: Exhibit R-6
Respondent’s Position:
[222] The Minister has conceded the
appellant was engaged in insurable employment with Gill Farms in 1998 and that
she worked 108 insurable hours and had insurable earnings in the sum of
$871.56.
Appellant’s Position:
[223] The appellant relies on the
information contained in her ROE that she was employed from August 2 to
September 12, 1998 and during said period worked 324 hours and had
insurable earnings in the sum of $2,614.68.
Analysis:
[224] The appellant’s evidence with
respect to being driven to and from the farm, or concerning start and finish
times and other related matters would be significant if there had been a
finding that she – like other workers – had been remunerated for picking
berries on a hourly rate rather than by a piece rate. During her interview with
Rai – Rulings Officer – the appellant stated – more than once – that she and her
husband put up nets before starting to pick blueberries. Rai was aware the nets
had been installed in June and that the appellant’s employment with Gill Farms
only started on August 2 so this statement did not make sense. In the course of
preparing her ruling and as related during her testimony at trial, Rai noted
several discrepancies with respect to the hours and days allegedly worked. The
evidence established there was a large withdrawal from the account of the
appellant and her husband – Gurdev Singh Gill – on the same day as the last of
their pay cheques were deposited. When asked whether she had paid cash back to
the Gill family in exchange for receiving her “weeks” (ROE), the appellant
stated she did not know as “her husband took care of it” and added, “the men
make all the arrangements”. The appellant estimated she had picked 200 pounds
of blueberries per day – on average – in 1998 but, in 2005, due to increased
yields and new varieties of plants, could pick 300 pounds per day during high
season. At trial, the appellant stated she had not put up the nets but helped
take them down. At Discovery, several of her answers made it apparent she and
her husband shared a bucket when picking berries and their joint production was
measured on one picking card. At trial, she refused to acknowledge those
answers were correct and stated she had not intended to convey that impression
but meant to say that although she and her husband each had a picking card, he
retained her card on his person throughout the day.
[225] Keays prepared a calendar –
Exhibit R-6, tab 1, pp. 23 and 24 – in which he allocated 81 hours to the task
of picking berries in August to which he added 27 insurable hours – over 3
days – for taking down nets and pruning in September. Keays decided that if the
appellant’s employment was insurable, she worked 108 hours and had
insurable earnings of $871.56, including holiday pay of 7.6%.
[226] Again, by applying the formula
with respect to picking time, the appellant is entitled to have her insurable hours
increased – by 15% – from 81 to 93. Her time allotted by Keays for taking
down nets – 27 hours – is doubled to 54. As a result,
her total insurable hours are 147 and her insurable earnings are increased
accordingly.
Conclusion:
[227] The appellant was employed in
insurable employment with Gill Farms from August 3 to September 12, 1998 during
which period she worked 147 insurable hours and had insurable earnings in the
sum of $1,186.29.
[228] The decision of the Minister
with respect to each non-related appellants was that their employment with Gill
Farms was not insurable because it was excluded employment within the meaning
of the EIA. Keays, in carrying out his responsibility as an Appeals
Officer, sought advice and direction from senior officials in CCRA and obtained
permission to embark on a course of action wherein he developed a methodology
based on the information before him that permitted him to arrive at an
alternative position and to state a number attributable to insurable hours and
insurable earnings. In Keays’ career, he had not encountered a similar
situation. Each decision issued by the Minister to a non-related appellant went
on to state that – in the alternative – if the employment were found to be at
arm’s length, the Minister had determined a relevant number of insurable hours
and a corresponding total of insurable earnings. While not strictly on point,
the decision of the Federal Court of Appeal in Minister of National Revenue
v. Schnurer Estate 208 N.R. 339, dealt with the situation where
the determination (as it was then called) by the Minister found first that
Schnurer and the employer had not been dealing with each other at arm’s length
and therefore his employment constituted “excepted employment” within the
meaning of the Unemployment Insurance Act. Second, the determination
went on to find Schnurer was not employed pursuant to a contract of service as
defined by paragraph 3(1)(a) of said Act. By way of application
for judicial review, the Minister appealed the trial decision (mine) that he
could not proceed on the basis that the determination relied on both provisions
because it would require mutually exclusive findings of fact and the Minister
should choose one or other of the positions upon which the decision rested
before the case be allowed to proceed further. In allowing the application for
judicial review, Chief Justice Isaac – writing for the Court – at
paragraphs 17 and 18 of his judgment stated:
[17] On appeal, the Deputy Tax
Court judge is obliged to review the validity of the Minister’s determination
based upon all of the submissions of the parties. The Minister’s determination
rests upon the assumed facts as outlined in the applicant’s reply to the Notice
of Appeal. These facts, if not disproved, might lead the Tax Court, on appeal,
to conclude that Mr. Schnurer’s employment was not insurable either
because Mr. Schnurer was not an employee under a contract of service
(s.3(1)(a)) or because the nature of Mr. Schnurer’s relationship with
the payor corporation, although a contract of service, was such that it was not
substantially similar to a contract between parties dealing at arm’s length and
therefore should remain “excepted employment” (s. 3(2)(c)). The determination
by the Deputy Tax Court judge on the preliminary question of law, however,
would preclude the Tax Court from deciding all of the points of fact and law
necessary to assess the validity of the Minister’s determination when the s. 70
appeal is heard. For these reasons, I am respectfully of the view that the
Deputy Tax Court judge erred in law in finding that the applicant could not
defend the Minister’s determination on the basis of these two alternative
grounds.
[18] In reaching this
conclusion, I am not unmindful of the fact that, because of this court’s decision in Tignish, supra,
the two grounds advanced by the Minister in this case must be assessed
according to different standards of review. In Tignish, supra, this
court held that, where an employer and employee are not at arm’s length, the
Minister’s determination under s. 3(2)(c)(ii) that they would not have entered
into a similar contract of service had they been at arm’s length, is a
discretionary determination subject to a high standard of review on appeal to
the Tax Court. In essence, if the Minister has given sufficient weight to all
of the relevant factors related to the employment relationship, the Tax Court
is not at liberty to overrule the Minister’s decision under s. 3(2)(c)(ii)
merely because it would have come to a different conclusion. The Minister’s
decision under s. 3(1)(a), on the other hand, is quasi-judicial and
therefore subject to de novo review by the Tax Court. The different standards
of review which apply to these sections, however, do not in any way preclude
the applicant from advancing both as grounds, in the alternative, in support of
the Minister’s determination. Faced with this class of case, the task of the
Tax Court is to review all of the evidence and consider all of the submissions
of the parties in order to assess the validity of the Minister’s determination,
taking into account the different standards of review which apply to the
alternative grounds.
[229] In Schnurer, the
Minister expressed two reasons why the employment was not insurable. In the
within proceedings, each decision issued to a non-related worker included an
alternative finding but that was premised on the possibility there could be a
subsequent finding by the Court (or a concession by the Minister, perhaps) that
the subject employment was insurable. The alternative position in each decision
was expressed in a manner consistent with the normal practice followed in
pleadings and said position was included in each Reply filed in response to
each Notice of Appeal filed by non-related appellants.
[230] The within appeals from
decisions of the Minister are pursuant to subsection 103(1) of the EIA.
The jurisdiction of this Court in respect of an appeal is set forth in subsection
103(3) as follows:
(3) Decision – On an appeal,
the Tax Court of Canada
(a) may vacate, confirm
or vary a decision on an appeal under section 91 or an assessment that is the
subject of an appeal under section 92;
(b) in the case of an
appeal under section 92, may refer the matter back to the Minister for
reconsideration and assessment;
…
[231] Because the within appeals are from
decisions of the Minister issued pursuant to section 91, there is no ability to
send them back to the Minister as there would be in the case where assessments
were issued under section 92. Therefore, without Keays having embarked on a
course of action to develop the basis for a statement of the alternative
position within the decisions issued to each non-related appellant, I would
have had to start almost at square one, using the evidence before me, including
Blatchford’s report and testimony, Sweeney’s report and testimony, in order to
create a system for calculating the number of insurable hours of employment and
insurable earnings in those cases where the employment of an appellant was
found to be insurable. As it transpired, the primary position of the Minister
with respect to the non-arm’s length issue was abandoned within a week after
this trial had concluded. The methodology developed by Keays took on added
significance and was used – by me – as a foundation upon which to examine all
the relevant evidence with respect to the issues of insurable hours of
employment and insurable earnings applicable to each non-related appellant.
[232] I am satisfied the procedure
followed by the Minister in the case of the non-related appellants was
practical and extremely helpful in this sort of case. The expression of an
alternative (in the sense of being opposite) position within the body of the
decision – rather than merely allowing
for that possibility when drafting subsequent pleadings – does not vitiate the validity of the primary position
of the Minister that the employment of each non-related appellant was not
insurable. The surplus language expressing an alternative position did not
detract from the viability of the decision and only came into play when the
primary finding was abandoned following completion of a lengthy trial during
which evidence along the entire spectrum relevant to the overall issue of arm’s
length vs. non-arm’s length by all appellants – family and non-family – was examined thoroughly.
[233] The testimony of the expert –
Charan Gill – disclosed the working life of the farm labourer is not a happy one. The hours
are long and including travel to and from a farm, the working day can consist
of 12 hours. In Charan Gill’s opinion, only during a couple of weeks within the
peak part of season can a berry picker earn more than the minimum hourly wage.
In his experience, a farm worker might earn an average of $5 per hour
throughout the season and that is factoring in some hours of work at the
beginning and end of the season when certain tasks are remunerated on an hourly
basis according to the current minimum wage set by provincial legislation. The
effect of subsection 10(5) of the Regulations concerning the method of
determining hours of insurable employment is that 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 is
limited to 7 hours per day up to an overall maximum of 35 hours per week. As a
result, a piecework picker might only earn $60 per day or $420 during a 7-day
work week but in order to do so has to spend 70 or more hours in the fields. As
explained by Charan Gill, the practice followed by growers in the berry
industry is to convert the gross earnings into hours of work by dividing that
amount by the minimum hourly wage so the payroll records contain entries of a 7
or 8-hour day instead of recording the actual hours worked by the picker. By
following that method, growers will never be compelled to pay rates in
accordance with provincial overtime rates which – in 1998 – only came into
play if a farm worker’s hours exceeded 120 within any two-week period. As a
consequence of new provincial regulations that came into effect in 2001,
any consideration of overtime pay for a farm worker is forestalled until the
200-hour limit – within a two-week period – has been breached. Charan Gill
testified that when the farm inspection team – ACT – was active as a joint
federal/provincial task force, it had a big impact on the industry and several
growers were charged with a variety of offences for having breached applicable
federal and/or provincial legislation or regulations. In addition, ACT educated
and instructed both farmers and workers as to the proper procedures to follow
and safety issues were also addressed by the provincial representative assigned
to the team by the Employment Standards Branch. The evidence of Turgeon was
that ACT continues to exist but that declaration would have surprised Charan
Gill who testified he thought it had been disbanded. I suspect ACT exists on
paper and some individuals employed in some departments or agencies may
continue to be assigned to that team – in a notional sense – and ACT may be
headquartered in a small, shared office – with telephone – somewhere but I have
not heard any EI cases arising within the past 3 or 4 years in which
unannounced inspections were made by ACT to a farm in British Columbia.
[234] Within the system, it is
difficult for a farm worker to accumulate sufficient insurable hours during the
course of a relatively short season that will permit him or her to qualify for
UI benefits following layoff. The amounts earned during the season are usually
within the range of $3,000 – $8,000 even by people working
at more than one job and the receipt of UI benefits after layoff is the main
reason people perform this kind of work. The young people within the
Indo-Canadian community are no longer willing to do piecework and if they do
choose to perform farm work, it is at a cannery, nursery or for a farming
business that not only pays an hourly wage – usually minimum – but issues a pay cheque every two weeks rather than
waiting until after the end of the season to pay the bulk of wages due to
workers. The growers maintain that the free market and fierce competition with
producers in the United
States of America
has shrunk their profit margins. Overall, the farm labour market is a fertile
field and ripe for exploitation. Within the industry in the Lower Mainland,
ROEs are either sold outright or a certain amount of cash is returned to the
employer in exchange for an ROE that has been inflated, exaggerated, stretched
and massaged with respect to hours worked, the period of employment, rate of
hourly pay, percentage of holiday pay and the total amount of insurable
earnings. The workers are kept in the dark and are content to remain in that
unenlightened state since it means they can adhere to the position that it was
the fault of their employer, HRDC, CCRA or someone else. They are content
to repeat – as though it were a mantra – “I don’t know about that, I just
worked, very hard”. It was extremely difficult to make the appellants
understand the onus was on them to establish – on a balance of probabilities – that their employment with Gill Farms was insurable
according to the provisions of the EIA. There was no burden on the
respondent to prove that money had been returned by any appellant to any member
of the Gill family with respect to his or her employment in 1998. The weight of
the evidence certainly supported the position of the Minister that something
fishy was going on when certain cash withdrawals by several appellants at the
end of the season coincided – or nearly so – with the issuance of an ROE to
either the worker or to his or her spouse. In 1998, the amount of money
deposited into the account used by Gill Farms as the business account was
approximately $60,000 more than the total of amounts shown to have been
attributable to farm revenue, loans from family and friends or injections of
capital by Hakam Singh Gill and Rajinder Singh Gill from their pay cheques or
other off-farm revenue.
[235] The amount of any pay cheque
issued by Gill Farms to an appellant – even though deposited to that
appellant’s account in a financial institution – does not mean that sum automatically qualifies as forming part of
overall insurable earnings. As I commented in the Kang, supra, at
paragraph 429:
There is no doubt
that two cheques totaling $6,500 cleared the SRC bank account. However,
insurable earnings are not based merely on the receipt of money from someone
who happens to be an employer for a certain period of time, they must be in
respect of that employment…
[236] In the within appeals, as in Kang,
the quality of the interpretation undertaken by Punjabi-speaking HRDC personnel
or by Rai – Rulings Officer – was appropriate under the circumstances and I am
satisfied there was no significant miscommunication between any appellant and
those persons investigating their UI claims. There seemed to be a sense on the
part of the appellants that they were being picked on and singled out for
harassment by HRDC and CCRA. In my assessment of the situation, the officials
within HRDC and CCRA were patient, thorough and willing to receive whatever
cogent information could be provided to support any appellant’s claim that the
ROE issued by Gill Farms in respect of their employment was correct.
[237] Each year in Canada, there must be more than a
million ROEs issued by employers to employees. At any given point, about
800,000 people are receiving UI benefits and because of the nature of the
country and the harsh climate in many regions, a substantial portion of workers
are employed in jobs that are seasonal. As a matter of routine, an employer
issues ROEs to laid off workers who can rely on the information contained
therein if they need to apply for UI benefits. If everything is in order, the
appropriate amount of ensuing benefits is calculated pursuant to the
legislation and in accordance with the policy by which the UI/EI scheme is
administered and cheques are issued for a specific period of entitlement. One
shudders to contemplate the devastating impact on the federal treasury if it were
necessary on each occasion to undertake the same laborious process that was
necessary with respect to these appellants in order to arrive at a decision
regarding the validity of every worker’s employment, and, if found to be
legitimate, then to calculate the correct number of insurable hours worked and
the total insurable earnings based on employer records that were not reliable
and on information from employees concerning their employment that was
inconsistent, incomplete, vague, or – worse – simply untrue.
[238] I am indebted to both counsel
for the respondent for their methodical and competent presentation of evidence
and organization of material – including binders of documents which were filed
as exhibits – that enabled the trial to proceed in an orderly manner. I am
satisfied each appellant had the benefit of full disclosure of all information
capable of affecting his or her appeal. The written submissions prepared by
counsel contained references to specific testimony and exhibits and summaries of
evidence applicable to each appellant. The material also included information
concerning relevant dates as well as calculations of important amounts and
numbers. Overall, it was a well-organized submission of relevant material that
proved to be extremely helpful in the course of preparing these reasons.
[239] The quality of the English to
Punjabi and Punjabi to English interpretation and translation by Russell Gill
throughout – and Kasmir Gill on one occasion – was excellent and their professional
service was essential.
[240] Ronnie Gill – agent for the
appellants and intervenors – is a Certified Management Accountant (CMA). She
represented the parties from the appeals stage of the process until the end of
this trial. On many occasions leading up to the commencement of this trial, she
appeared before Justice Little in respect of various motions, status hearings,
case management, or with regard to scheduling of this trial and related
matters. However, she had no previous experience in conducting a trial. Fortunately,
she was a fast learner. I am satisfied the intervenors and appellants received
proper representation throughout this trial as a result of her efforts on their
behalf.
Signed at Sidney, British
Columbia, this 16th
day of June 2006.
Rowe,
D.J.
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