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Citation: 2005TCC112
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Date: 20050210
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Dockets: 2004-2835(EI)
2004-2836(CPP)
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BETWEEN:
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RONALD CORSAUT,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
and
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RALPH & JUNE MOUNT O/A TIM'S USED
TIRES,
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Intervener.
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REASONS FOR JUDGMENT
Bowman, A.C.J.
[1] These appeals are from decisions
of the Minister of National Revenue under the Employment
Insurance Act and the Canada Pension Plan that the
appellant was not employed in insurable or pensionable employment
during the period of April 28, 2001 to
April 28, 2003.
[2] The appellant contends that he
worked during that period for Ralph and June Mount who
carried on business as Tim's Used Tires ("Tim's").
[3] His testimony was that he worked
from 8 a.m. to 6 p.m., Monday, Wednesday and Friday and was paid
$14 per hour. He said he also worked for Tim's on Saturdays and
used his own or Tim's pickup truck to pick up tires.
[4] He said that he lived with his
girlfriend and her daughter at that time and that he took the
girlfriend to work and the daughter to school each day. At that
time he lived only a few blocks from Tim's at 443 Spruce Street
in London. He said that he was hired by Mr. Mount after
"Gus" (an employee) had retired. He said he was asked by
Mr. Mount to work for him when he was in the shop buying
tires.
[5] He testified that during the two
years in question his income from Tim's (which was always paid on
Friday in cash) was his only source of livelihood. He said he was
injured at work in April 2003 and had to leave his
employment. He applied for compensation from the Workplace Safety
& Insurance Board ("WSIB"). He stated further that he never
received any T-4 slips or any record that Tim's had withheld tax
or EI or CPP premiums.
[6] A letter from the WSIB, dated
June 6, 2003 to the appellant is illustrative of the sort of
problem that the WSIB had with this claim. Only the first page of
the letter was provided. Mr. Corsaut was unable to say what
the second page said and so the evidentiary value of the letter
is somewhat suspect. We do know that the claim was denied. For
what it is worth the first page reads as follows:
Dear Mr. Corsaut:
On May 6, 2003 you contacted the Workplace Safety
& Insurance Board to report a workplace injury to your back.
A claim was subsequently registered for you and assigned to me
for adjudication. As per our recent telephone conversation, this
letter serves to explain my rationale for not being able to allow
your claim for benefits.
As you are aware the initial task for me was to determine
whether you were considered a "worker" under the Workplace Safety
& Insurance Act. On May 9, 2003 you informed me
that you had worked for Tim's Tire for four and a half years,
where seven or eight other employees worked. You indicated you
worked a 44 hour work week and earned $15.00 per hour. You said
you averaged taking home $450.00 per week. You further advised
that you were usually paid in cash and the odd personal cheque,
and therefore did not have any pay stubs. Furthermore you did not
claim this income with Revenue Canada and therefore could not
provide a Statement of Income and Deductions to assist in proving
your employment status. It should be noted that regardless of the
earnings information you told me on May 9, 2003, you
reported on your Worker's Report of Injury that you worked three
days a week, earned $10.93 per hour, and averaged your weekly pay
as $350.00.
Following our above noted discussion I called and spoke with
Ralph Mount, the owner of Tim's Tire. When I advised him of
the content of our conversation, Mr. Mount claimed none of
this was true. Faced with the challenge of differing statements,
I arranged to have a Senior Investigator from our Special
Investigation Branch attend Tim's Tire to speak once again with
Mr. Mount. During that visit the Investigator noted a very
small business that would not require 7 or 8 employees as you had
advised me were employed there. Mr. Mount did advise the
Investigator that he did pay you monies on occasion for helping
them change tires. When asked how much money you would be paid on
average per week, Mr. Mount said he paid you approximately eight
or nine dollars an hour, and you helped them out on the average
of 15 hours per week.
Given Mr. Mount's acknowledgement that he paid you money
for performing work, I rendered the decision that you were in
fact a worker under the Workplace Safety & Insurance Act.
Having concluded this essential step, I then turned my attention
to adjudicating the claim per policy guidelines.
[7] In Exhibit R-1 he
stated that his gross normal weekly earnings were $620 for a
44 hour week. If he worked a 44 hour week at $14 per hour it
would have come to $616. His testimony however was that he took
home somewhere between $300 and $350.
[8] In his supplement to the
application for benefits (Exhibit R-2), he stated that
he normally worked Monday, Tuesday, Wednesday and Friday at an
hourly rate of pay of $15.00. This is inconsistent with his oral
testimony.
[9] Mr. Mount, who represented
the intervener, (Tim's) testified that the appellant never worked
for Tim's. Exhibit R-5 is a letter from Mr. Mount
to a Mr. Rioux, Insurance Agent, at the London HRCC. (I am
not sure what this stands for). He stated:
Dear S.M. Rioux:
Thank-you for your letter of February 05,2004 requesting a
"Record of Employment" for Mr.Corsault.
We have never employed Mr. Corsault at any time. Though our
kindness, Ron has blown this situation out of proportion as some
kind of revenge tactic. Ron had a disagreement with my son over
borrowing a tire changer we needed at the time. Also we think he
caught wind that we would be hiring someone in the near future to
help my son as I am having back problems. He may have wanted the
job but we hired a family friend. This may have upset him as he
hung around our shop on a daily basis drinking coffee and
socializing with my other friends that would stop in. He would
use our equipment when we where not busy for friends cars as well
as the many he would curbside in the papers. He would change the
odd tire here and there for me as a favor for using our machines.
I would sometimes give him eight or nine dollars to go and buy
himself lunch for helping out. This was out of my pocket, not
from the business in any way.
There was never a worker / employer relationship with Ron. He was
just a nice guy who hung around the shop at least ten to fifteen
hours a week here and there. He already tried to get Worker's
Compensation and lied repeatedly to the adjudicator. This was
identified in his appeal being denied by an Appeals Tribunal.
Some of my other friends want to use the machines when we are not
busy, but I now tell them I can't as the liability is to great,
Not that Ron ruined it for everyone!
Please find attached a letter from my accountant showing my son
as an employee and his income tax return. He was the only
employee until I hired our family friend Joe. Once again,
Mr. Corsault was never, ever an employee of Tim's Tire
resulting in no record of employment being sent on Mr.Corsault's
behalf.
[10] I have pointed out a number of
inconsistencies in Mr. Corsaut's evidence. There are also
inconsistencies in Mr. Mount's evidence. He stated that
Mr. Corsaut never was an employee of Tim's. Yet in the
letter from the WSIB it appears that he stated that he paid
Mr. Corsaut approximately $8 or $9 an hour and that
Mr. Corsaut helped them (Tim's) out on the average of 15
hours per week. This is inconsistent with his stating that
Mr. Corsaut never worked for him at all.
[11] Also, a memo to the file from
Mr. J. Lockwood, an adjudicator with WSIB reads as
follows in Exhibit A-1. I am reproducing it with all
of its spelling and grammatical errors:
DESCRIPTION: MEMO # 2 - CALL
FROM EMPLOYER
CLAIMS WORKER NOT HIS WORKER
I RECEIVED A CALL FROM RALPH MOUNT THIS DATE, THE EMPLOYER OF
THIS INJURED WORKER. HE INFORMED ME "I GOT A LETTER FROM YOU
YESTERDAY AND NEED TO TALK TO YOU ABOUT IT. IT'S ABOUT SOMEONE I
DON'T KNOW.
I RETURNED THE CALL AND EXPLAINED THAT THIS WORKER CALLED OUR
OFFICE TO REPORT AN INJURY TO HIS BACK ON 23APR2003. WHEN ASKED
IF THIS MAN WAS HIS EMPLOYER SAID NO. HE SAID "THIS GUY" COMES IN
SOMETIME TO HELP OUT AND I FEEL BAD THAT HE IS HELPING SO A GIVE
HIM SOME MONEY SOMETIMES.
I INFORMED RALPH THAT IF THIS PERSON COMES INTO THE SHOP AND
PERFORMS WORK FOR WHICH HE IS PAID, HE IS A WORKER UNDER THE ACT
AND ENTITLED TO BENEFITS
I TOLD RALPH I WOULD BE CONTACTING THE WORKER TO DISCUSS THE
CLAIM AND EMPLOYMENT RELATIONSHIP FURTHER.
J. LOCKWOOD, A DJUDICATOR
09 MAY 2003
[12] For Mr. Mount to say that he did
not know Mr. Corsaut and at the same time admit that he came
in to help out and in another communication to say that he worked
about 15 hours per week makes it somewhat difficult to know what
to believe.
[13] The difficulty in deciding the
credibility issue is exacerbated by reason of the fact that no
one was called by the appellant, the Crown or the intervener, to
corroborate the diametrically opposed stories of Mr. Corsaut
or Mr. Mount, although a witness did appear and stated that
when he visited Tim's as a customer (about once a month) he never
heard Mr. Mount use profanity or obscenity. He did not see
Mr. Corsaut. That witness' testimony might be truthful as
far as it goes, but it goes nowhere. It is of doubtful relevance
or evidentiary value. Moreover, Mr. Corsaut did not
cross-examine Mr. Mount. I do not think that the rule in
Browne v. Dunn (1893) 6 R 67, HL, at 70-71, should
be as rigorously applied in the case of an unrepresented litigant
such as Mr. Corsaut as it would be if there were counsel
representing a party. Nonetheless, the result is that
Mr. Mount's testimony remained untested by
cross-examination. Moreover, I considered it inappropriate
for me to cross-examine Mr. Mount. While I believe that
where a litigant is unrepresented, it is permissible for the
trial judge to intervene more than he or she might where counsel
are involved, there are limits. A judge cannot and should not
simply take over the case. It can in some cases create an
impression of bias. See James v. The Queen, 2001 DTC 5075,
where the Federal Court of Appeal allowed an appeal and ordered a
new trial when the trial judge intervened so excessively that he
appeared to have taken on the role of counsel. See also Jones
v. National Coal Board [1957] 2 All E.R. 155; [1957]
2 Q.B. 55. In Thomson v. Glasgow Corporation,
Reports-1961, Scots Law Times, 237, (The Lord
Justice-Clerk (Thomson), Lords Patrick, Mackintosh and
Strachan) said at pages 245-6:
[. . .] It is an essential feature of the judge's function to
see that the litigation is carried on fairly between the parties.
Judges sometimes flatter themselves by thinking that their
function is the ascertainment of truth. This is so only in a very
limited sense. Our system of administering justice in civil
affairs proceeds on the footing that each side, working at arms
length, selects its own evidence. Each side's selection of its
own evidence may, for various reasons, be partial in every sense
of the term. Much may depend on the diligence of the original
investigators, or on the luck of finding witnesses or on the
skill and judgment of those preparing the case. At the proof
itself whom to call, what to ask, when to stop and so forth are
matters of judgment. A witness of great value on one point may
have to be left out because he is dangerous on another. Even
during the progress of the proof values change, treasured
material is scrapped and fresh avenues feverishly explored. It is
on the basis of two carefully selected versions that the judge is
finally called upon to adjudicate. He cannot make investigations
on his own behalf; he cannot call witnesses; his undoubted right
to question witnesses who are put in the box has to be exercised
with caution. He is at the mercy of contending sides whose whole
object is not to discover truth but to get his judgment. That
judgment must be based only on what he is allowed to hear. He may
suspect that witnesses who know the "truth" have never left the
witness room for the witness box because neither side dares risk
them but the most that he can do is to comment on their
absence.
A litigation is in essence a
trial of skill between opposing parties conducted under
recognised rules, and the prize is the judge's decision. We have
rejected inquisitorial methods and prefer to regard our judges as
entirely independent. Like referees at boxing contests they see
that the rules are kept and count the points.
[14] With respect, this somewhat jaundiced
view of the court's role does not accurately reflect our
obligations as judges. Our courts do have an interest in
determining the truth because the determination of truth is an
essential aspect of our commitment to ensure that justice be
done. That determination must however be made within the rules
and one of the rules is that we not descend into the arena. We
are certainly more than referees at a boxing match. The
justification for the adversarial system in our courts (as
opposed to the inquisitorial system) is that it is assumed that
the truth will emerge from the confrontation of opposing
positions. The games theory expressed by the Scottish court
implies that the paramount consideration is how you play the game
and justice and the interests of the litigants are relegated to a
subordinate position. Lord Denning's eloquent exposition in
the Jones case of the role of a trial judge is worth
repeating ([1957] 2 Q.B. at 63).
No one can doubt that the
judge, in intervening as he did, was actuated by the best
motives. He was anxious to understand the details of this
complicated case, and asked questions to get them clear in his
mind. He was anxious that the witnesses should not be harassed
unduly in cross-examination, and intervened to protect them when
he thought necessary. He was anxious to investigate all the
various criticisms that had been made against the board, and to
see whether they were well founded or not. Hence, he took them up
himself with the witnesses from time to time. He was anxious that
the case should not be dragged on too long, and intimated clearly
when he thought that a point had been sufficiently explored. All
those are worthy motives on which judges daily intervene in the
conduct of cases, and have done for centuries.
Nevertheless, we are quite
clear that the interventions, taken together, were far more than
they should have been. In the system of trial which we have
evolved in this country, the judge sits to hear and determine the
issues raised by the parties, not to conduct an investigation or
examination on behalf of society at large, as happens, we
believe, in some foreign countries. Even in England, however, a
judge is not a mere umpire to answer the question "How's that?"
His object, above all, is to find out the truth, and to do
justice according to law; and in the daily pursuit of it the
advocate plays an honourable and necessary role. Was it not Lord
Eldon L.C. who said in a notable passage that "truth is best
discovered by powerful "statements on both sides of the
question"?: see Ex parte Lloyd. And Lord Greene M.R. who
explained that justice is best done by a judge who holds the
balance between the contending parties without himself taking
part in their disputations? If a judge, said Lord Greene, should
himself conduct the examination of witnesses, "he, so to speak,
descends into the arena and "is liable to have his vision clouded
by the dust of conflict": see Yuill v. Yuill.
Yes, he must keep his vision
unclouded. It is all very well to paint justice blind, but she
does better without a bandage round her eyes. She should be blind
indeed to favour or prejudice, but clear to see which way lies
the truth: and the less dust there is about the better. Let the
advocates one after the other put the weights into the scales -
the "nicely calculated less or more" - but the judge at the end
decides which way the balance tilts, be it ever so slightly. So
firmly is all this established in our law that the judge is not
allowed in a civil dispute to call a witness whom he thinks might
throw some light on the facts. He must rest content with the
witnesses called by the parties: see In re Enoch &
Zaretsky, Bock & Co. So also it is for the advocates,
each in his turn, to examine the witnesses, and not for the judge
to take it on himself lest by so doing he appear to favour one
side or the other: see Rex v. Cain, Rex v. Bateman,
and Harris v. Harris, by Birkett L.J. especially. And it
is for the advocate to state his case as fairly and strongly as
he can, without undue interruption, lest the sequence of his
argument be lost: see Reg. v. Clewer. The judge's part in
all this is to hearken to the evidence, only himself asking
questions of witnesses when it is necessary to clear up any point
that has been overlooked or left obscure; to see that the
advocates behave themselves seemly and keep to the rules laid
down by law; to exclude irrelevancies and discourage repetition;
to make sure by wise intervention that he follows the points that
the advocates are making and can assess their worth; and at the
end to make up his mind where the truth lies. If he goes beyond
this, he drops the mantle of a judge and assumes the robe of an
advocate; and the change does not become him well.
Lord Chancellor Bacon spoke right when he said that:
"Patience and gravity of hearing is an essential part of justice;
and an over-speaking judge is not well-tuned cymbal."
Such are our standards. They
are set so high that we cannot hope to attain them all the time.
In the very pursuit of justice, out keenness may outrun our
sureness, and we may trip and fall. That is what has happened
here. A judge of acute perception, acknowledged learning, and
actuated by the best of motives, has nevertheless himself
intervened so much in the conduct of the case that one of the
parties - nay, each of them - has come away complaining that he
was not able properly to put his case; and these complaints are,
we think, justified.
[15] At the end of the trial it appeared to
me that the two witnesses were, credibility-wise, in a dead
heat. Therefore, I reserved judgment, based on my decision in
1084767 Ontario Inc. (c.o.b. Celluland) v.
Canada, [2002] T.C.J. No. 227:
8. The evidence of
the two witnesses is diametrically opposed. I reserved judgment
because I do not think findings of credibility should be made
lightly or, generally speaking, given in oral judgments from the
bench. The power and obligation that a trial judge has to assess
credibility is one of the heaviest responsibilities that a judge
has. It is a responsibility that should be exercised with care
and reflection because an adverse finding of credibility implies
that someone is lying under oath. It is a power that should not
be misused as an excuse for expeditiously getting rid of a case.
The responsibility that rests on a trial judge to exercise
extreme care in making findings of credibility is particularly
onerous when one considers that a finding of credibility is
virtually unappealable.
See also Chomica v. The Queen, 2003 DTC 535.
[16] On reflection, despite the
inconsistencies in the appellant's evidence, I think on balance
that his evidence is more reliable and indeed is more consistent
with parts of Mr. Mount's evidence that he gave to the WSIB.
To find Mr. Corsaut's evidence wholly false would be to
ignore large parts of the evidence and moreover, would be to find
that his assertion that he worked for Tim's was part of a
monumental fraud. I am not prepared to do so.
[17] Quite apart from my observation of both
witnesses there are other factors that tended to favour my
acceptance of the appellant's version. The appellant in his
notice of appeal made some rather intemperate and serious
allegations about Mr. Mount's character, behaviour and
vocabulary. Normally the making of such statements, albeit
irrelevant, would make me somewhat apprehensive about the
appellant's testimony. However, Mr. Mount in his testimony
did not deny the assertion.
[18] A second consideration that I think is
of significance is that Mr. Corsaut testified that every day
his girlfriend's daughter, after she got back from school, would
call him at Tim's. She was in court throughout the case and could
have been called. Mr. Corsaut did not call her. Also,
Mr. Mount's son was in court throughout the trial and he was
not called. I regard the failure to call Mr. Mount's son as
more serious than the failure to call the girlfriend's daughter.
The son is an adult and he could have corroborated his father's
story because he worked at Tim's. The daughter of the girlfriend
could only have stated that she telephoned the appellant at
Tim's. Moreover, the daughter at the time of trial was only 13
years old and I informed Mr. Corsaut that if he called her I
would have to be satisfied on the matters mentioned in
section 16 of the Canada Evidence Act. This may have
made the appellant a little hesitant to call her.
[19] The appeals are allowed and the
decisions that Mr. Corsaut was not engaged in pensionable
and insurable employment in the period in question are
vacated.
Signed at Ottawa, Canada this 10th day of
February 2005.
Bowman, A.C.J.
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