Citation: 2005TCC333
Date: 20050516
Docket: 2004-3697(EI)
BETWEEN:
KULWINDER KAUR MALHI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] The appellant (Malhi and/or worker) appeals from a
decision issued by the Minister of National Revenue (the "Minister") on
July 23, 2004 wherein the Minister decided her employment with Jagdish S. Malhi
(JSM and/or payor) from June 18 to October 6, 2001 was not insurable
pursuant to the relevant provisions of the Employment Insurance Act (the
"Act") because she was not providing services pursuant
to a contract of service.
[2] The Respondent’s
Book of Documents – tabbed 1-39, inclusive – was filed as Exhibit R-1.
[3] Kulwinder Kaur Malhi
testified in Punjabi and the questions and answers and other aspects of the
proceedings were interpreted and/or translated from English to Punjabi and from
Punjabi to English by Russell Gill, interpreter.
[4] The appellant
testified she is not related to the payor. On June 18, 2001, she started
working as a labourer on the orchard operated by JSM and his wife, Daljit Malhi.
The appellant stated her rate of pay was $8.50 per hour for the first two weeks
but was raised to $9.00 for each hour worked thereafter. Her first task was to
thin the fruit and later she began picking cherries, apples and peaches. The
fruit had to be packed into boxes. The cherry crop was harvested by July 15th
and she also did some thinning in July. The orchard comprised about 10 acres
and there were apple and peach trees thereon. Malhi stated that after the
cherry crop had been picked, she picked peaches until the end of July and then
picked the early‑maturing apples – Sunrise and Transparent - followed by those species that
matured later and picked the late-maturing apples until her employment ended on
October 6, 2001. The appellant stated her working hours were from 7:00
a.m. to 6:30 or 7:00 p.m., every day except Sunday, and that her hours
were recorded on a time sheet maintained by the payor. Apart from her hourly
rate, she received no further payments or benefits except for vacation pay - 7.6%
- in accordance with provincial law. The appellant stated she worked alone on
the JSM property except for those times when workers from Québec were picking
cherries, although the payor would also work in the orchard from time to time.
In 2001, her two children were aged 5 and 7 and were cared for by her
husband and her mother-in-law during working hours. The appellant identified –
at tab 2 – her application for unemployment benefits dated October 29, 2001.
She also identified – at tab 3 - her Record of Employment (ROE) dated October
25, 2001 in which the payor reported she had worked 841 hours and had insurable
earnings in the sum of $8,086.07. The appellant was referred – at tab 7 - to
various sheets – each with the heading Daily Time Sheet – which she identified
as those used to record her hours of work during the relevant period. She
pointed to an area on the right side of the sheets where she had signed her
name in order to verify the accuracy of the information entered in the spaces
to the left. Counsel for the appellant referred Malhi to photocopies of various
cheques at tab 9. The appellant stated she received those cheques from the
payor and deposited them to her account in the Valley First Credit Union (Credit Union).
The first cheque – in the sum of $709.30 – was dated July 6, 2001 and the final
wage payment was by cheque – in the sum of $406.93 – dated October 25,
2001. The appellant stated she also received two payments in cash for her
wages, one in the sum of $500 – perhaps in July or August – and another in the
sum of $125. Counsel referred Malhi to two receipts – at tab 24 – and she
agreed those represented the cash payments she had received from JSM. The
appellant acknowledged her signature on the last page of the Questionnaire –
tab 21 – and stated the contents of that document were true to the best of her
knowledge. However, she agreed with counsel’s observation that there seemed to
be an error on the fourth Daily Time Sheet - within tab 7 – in that it appears
the hours – 45 - worked for the first week and the hours – 44 – worked for the
second week of that pay period were incorrectly totalled as 99 rather than 89
and payment of her wages – at $9 per hour - was based on the higher number. The
appellant acknowledged her signature on the Questionnaire – tab 30 – dated June
23, 2003 and while she could not recall specifically who helped her to complete
this form, stated it would have been done either by her husband or by Susan
Kassian, who performed bookkeeping services for her husband’s orchard business.
Counsel for the appellant advised the appellant that the position of the
respondent – as set forth in subparagraph 5(h) of the Reply to the Notice of
Appeal (Reply) - was that when an Human Resources Development Canada (HRDC)
investigator had visited the JSM orchard on 3 occasions, she was never present.
The appellant stated the entry on the Daily Time Sheet was accurate and that
she had worked 9 hours on July 10, 2001, picking cherries on the payor’s
orchard. She recalled working at the orchard on September 11 – the day of the
attack on the World Trade Centre in New York – and stated the entry on the time
sheet was correct because she had worked only from 8:00 a.m. until 11:30 a.m. –
a total of 3 hours – because she was so upset at hearing the news that she went
home to her family. As for another day ‑ September 25, 2001 –
when an HRDC investigator was at the JSM orchard, the appellant stated the
entry on the Daily Time Sheet was correct and that she worked 10 hours that day
and had been picking Spartan apples. The appellant estimated the cherry trees
were up to 15 feet tall and the apple trees were between 10 to 12 feet high.
The cherry trees were located in 3 separate places on the 10-acre parcel but
the majority of the parcel was occupied by apple trees. The appellant was
referred by her counsel to a document – at tab 11 – entitled Orchard Operating
Agreement and dated January 10, 2001. She stated that although she cannot read
English, she was aware the purpose of the document was to permit her to lease
her one-half interest in their orchard property - in Oliver B.C. - to her
husband in return for receiving the sum of $500 per year and upon further terms
that her husband pay all costs associated with the operation of said orchard
and that he would indemnify her from all costs, charges and expenses resulting
from his failure to pay said operating costs. The appellant stated she entered
into said lease because of the amount of paperwork associated with operating
the orchard business and because she and her husband tended to argue when
working together and/or operating the business jointly. In response to
questions from the Bench, the appellant explained only a small portion of the
JSM orchard was devoted to peaches and they were picked at three different
times during the season but the picking was done along with other work being
performed so that she might pick apples and peaches the same day. In addition
to picking, she graded apples and peaches for quality before packing them into
boxes. The payor used a tractor to haul the boxes to large bins where the fruit
would be stored until delivered to the customer.
[5] In
cross-examination by counsel for the respondent, the appellant ‑ Kulwinder
Kaur Malhi – stated the 10.9-acre orchard – in Oliver – owned by herself and
her husband was acquired in 1996. Their family home is located on that
property. In 2001, that orchard grew 2 or 3 acres of cherries, 6 acres of
apples and 1.5 acres of peaches. There were two acres of Spartan apples, one
acre of McIntosh and smaller parcels devoted to Golden Delicious and Red Fuji.
In 2001, Param Malhi operated the Oliver orchard by himself and the
appellant stated one person could operate a 10-acre orchard provided extra help
was available during certain peak picking periods. Except for 2004, the
appellant had never worked on the home orchard property but was employed by her
husband in 2003 on an orchard property leased by him from a third party. The
appellant maintained an account in the Credit Union and stated she had no
knowledge of the transactions occurring in her husband’s bank account at the
Royal Bank of Canada (Royal) in Oliver. The appellant agreed she had
worked for JSM in 2000 and that HRDC had obtained a ruling with respect to that
employment in which it had been determined she had not been employed under a
contract of service. Malhi acknowledged she was required to repay unemployment
insurance (UI) benefits already paid and that she had not appealed that ruling.
The appellant agreed this inability to receive UI benefits motivated her
and her husband to enter into the lease at tab 11. She denied knowing she could
not receive said benefits if she worked on their jointly‑owned property
and stated her decision to lease her interest to her husband was based on the
fact new planting had to be done. She stated she was not aware of the technical
requirements for receiving UI benefits and believed if the work was done she
should qualify for UI benefits whether or not she had an interest in the Oliver
property. Because Oliver is a small town, she discovered JSM owned an orchard
and after leaving the Sikh temple – in 2000 - she approached JSM and inquired
about availability of work. Malhi denied that her husband was involved in
arranging for her to work for JSM even though she agreed he operated their
orchard property and paid all household bills and handled all the banking and
other financial matters for both the household and the orchard. Malhi stated
she did not know Daljit Malhi – wife of JSM – even though she lived in the
house on the JSM orchard and confirmed that Daljit Malhi had never worked
with her on that property. The appellant stated she was not aware that her
husband had employed Parmjit Sidhu to work on the Oliver orchard in 2001 even
though her time sheet indicates she returned home – sometimes - in early
afternoon. The JSM property was a 10-minute drive from the appellant’s home.
The appellant stated she could not recall any other workers picking apples,
neither Québecois nor Indo-Canadians although 4 or 5 young men – from Québec –
picked cherries in June and/or July. The appellant described a typical working
day in which she arrived between 7:00 a.m. and 8:00 a.m. and sometimes
drove her car into the field to a spot near her worksite. JSM would come to the
area and give her instructions for the day. Counsel referred Malhi to a diagram
– within tab 34 – that had been included in a letter sent by Malhi to C. Amber
– Appeals Division – Revenue Canada, Vancouver. The appellant agreed there is a driveway
next to JSM’s house but added there are two other ways to enter the orchard
once a person has exited Highway 97. The appellant stated she recorded her
hours each day and reported for work at a time set by JSM the previous evening.
Her hours were recorded on sheets that were available in an area near a shed at
the end of the driveway. The appellant stated that sometimes she recorded her
start time in the morning but on other occasions wrote it down at the end of
the day and sometimes JSM brought the time sheet to her work location and wrote
in the hours worked for the day prior to her signing the sheet. Counsel
referred to a summary of earnings – tab 8 – the appellant had provided to HRDC
in which the entry for the period July 30th to August 12th, 2001, stated her
net pay was $765.94. The appellant agreed she could not produce a cheque in
that amount but stated she had received two sums of cash totalling $625, as
evidenced by the two receipts dated August 20 and August 25, respectively
at tab 24. The appellant stated she was working on the JSM orchard on
July 10, 2001 and was working there on September 11th until 11:30 a.m.
when she went home after being informed by JSM about the terrorist attack in New York. Malhi
stated she was picking apples on September 25th and worked until 6:30 p.m. that
day. Counsel referred the appellant to the Daily Time Sheet for the period
commencing July 3 and to the absence of start times on that entire sheet
covering the period up to July 16, 2001. The appellant replied that she
remembered those start times because she always started at 7:00 a.m. and worked
until 4:00 or 4:30 p.m. throughout that period. The appellant acknowledged
that when interviewed by Jim Rusk, an employee of Canada Customs and Revenue
Agency (CCRA) (as it then was) she denied receiving any cash payments from JSM
but later checked with Susan Kassian – bookkeeper – and discovered JSM had made
two cash payments of wages to her. The appellant denied counsel’s suggestion
that she had never worked for JSM and that the entire arrangement was a sham to
permit her to qualify for UI benefits.
[6] Jagdish Singh Malhi
(JSM) was called to the stand by counsel for the respondent. He testified in
Punjabi and the questions and answers and other aspects of the proceedings were
interpreted and/or translated from English to Punjabi and from Punjabi to
English by Russell Gill, interpreter. JSM stated he and his wife ‑ Daljit Malhi
– owned and operated a 10.2‑acre orchard in Oliver between 1995 and 2002.
He recalled that – in 2001 – the orchard grew cherries, apples, prunes,
apricots and peaches. The cherry and prune crops each occupied one acre and a
similar area was allotted to growing each of the apple varieties, namely,
Transparent, McIntosh and Golden Delicious. The Spartan apple crop was located
on 1.75 acres and peaches were grown on a small parcel comprising .25 of an
acre. JSM was referred to a document – at tab 12 – dated December 1, 1997 and
described as Orchard Operating Agreement. He identified his signature and that
of his wife ‑ Daljit Malhi – on the last page and explained that he
and his wife had entered into the agreement because she was not capable of
managing the orchard and could not drive a tractor or operate the spraying
equipment. The term of the agreement extended until December 31, 2002 and did
not require JSM to make any payment to Daljit Malhi for any profits flowing
from her 50% interest in the orchard. Instead, JSM was responsible for paying
all costs associated with the operation of the orchard, including mortgage
payments on the family home situate thereon. JSM stated that if his wife wanted
money for some purpose she could ask him at any time or just take it from their
resources. He had not leased land in the Oliver area from anyone else and did not
lease out any portion of his own orchard. JSM was referred to a Statement of
Farming Activities for Individuals (Statement) ‑ tab 26 - which
he recognized as part of his income tax return for the 2001 taxation year. He
agreed that no income from the sale of peaches was reported on said Statement
and that all income from sale of produce was attributable to apples and
by-products and cherries. JSM was referred to a table reproduced within
subparagraph 5(d) of the Reply pertaining to the years from 1999 to 2002,
inclusive. JSM stated the figures accurately represented the state of affairs
of the orchard operation and that in 1999 he had gross income of $34,697 but
sustained a net loss in the sum of $19,905. In that year, he employed 5 workers
and paid out $23,202 in wages. In 2000, the gross income rose to $61,347 and
net profit was $8,642, probably due in part to the reduction in wages to
$8,050. He stated he thought one of his employees that year was Kulwinder Kaur Malhi,
the appellant in the within appeal. In 2001, the orchard grossed $54,008 and
showed a net profit of $11,546. Wages that year were $8,086.07. In 2002, gross
income rose to $88,832 and produced net income of $14,997 after paying
operating costs including wages in the sum of $2,551. JSM could not remember
whether he had also employed a person identified in documents as B. Grewal
during the 2002 season and stated he had been afflicted with a fever in 1989
while visiting India and that it had affected his ability to remember. JSM
stated he met the appellant at the Sikh temple in Oliver and that she had
approached him outside and inquired if there was work available and he had
agreed to hire her to perform services on his orchard. The conversation was
held between the two of them and he did not see the appellant’s husband in the
immediate vicinity. JSM acknowledged that he knew Param Malhi was the
appellant’s husband since he had met him at the local packing house and on
occasion they had loaned each other sprays and/or farm equipment because they each
operated an orchard about 3 kilometers apart. Counsel asked JSM whether he knew
Jatinderpal Singh Sidhu, the employer of Daljit Malhi in 2001. JSM replied that
he "had nothing to do with that. That’s her dealings. I had my own
problems and my own tensions". In response to a question from the Bench as
to why his wife would not work on her own land, thereby saving them up to
$8,000 a season is wages, JSM stated that when he attempted to give his wife
instructions it would create tension and they would begin arguing and that
caused an ongoing problem. He related one occasion during which he was telling
her to do something and she became so confused she fell off a ladder. In
relation to the large amount of gross income in 2002, JSM explained that there
had been a hailstorm which damaged the apples and a large amount of reported
revenue that year had been the result of proceeds received pursuant to his hail
insurance policy. As a result, he was paid for the value of the damaged fruit
but did not have to pay labour costs for any picking. JSM stated the appellant
arrived to work in her own car or – sometimes – was dropped off by someone. He
described her duties as picking cherries, thinning of apples, picking and
grading fruit and other casual work associated with the orchard. Each day he
gave her instructions as to the work to be carried out the following day but
she chose her own start and end times. JSM acknowledged his signature on the
appellant’s ROE – tab 3 – that had been prepared by his accountant, Susan Kassian.
He stated the information therein was correct and that the appellant had worked
841 hours between June 18 and October 6, 2001 for which she had been
paid the sum of $8,086.07. His policy was to maintain a time sheet for all
employees and he instructed workers to write down their hours on the sheets
which were kept in the garage where tractors were stored. When the time sheets
were full, he took them to his accountant. In the event he was not present at
quitting time, he trusted his employees to enter the correct departure time on
the sheet. The accountant used the time sheets to prepare cheques which he
would sign but – sometimes – he was short of funds and could not pay wages
every two weeks. On the property, apart from the residence, there was a cabin
that was rented sometimes and another small building - basically attached to
the house - and a building where tractors were parked. JSM confirmed the
diagram – at tab 34 – was otherwise accurate. Counsel pointed out that the
payroll summary – tab 8 – indicated the appellant had net earnings of $765.94
during the period from July 30 to August 12 but there was no cheque issued to
her for that amount. JSM replied that there had been a couple of cash payments
to the appellant and referred to some receipts. When shown those receipts – tab
24 – and advised the two added up to only $625, JSM stated he permitted his
accountant to handle the figures and merely signed cheques and documents when
requested. Counsel advised JSM that there had been a visit to his orchard by
Brian Lundgren - HRDC investigator - on July 10, 2001, a day when 4 or 5
workers from Québec were picking cherries. JSM stated he did not have a
specific recollection of that event but recalled Lundgren’s visit on September 11th,
when Lundgren was accompanied by Bill Harrington. JSM had been picking apples
at the rear of the property and was being helped by his wife, his father and
his father-in-law. JSM stated the appellant was working that day on the other
side of the orchard doing some thinning of apples. He recalled she worked only
for a short period of time even though he had to fill an urgent order for
apples and had requested that she abandon her other work and come over and help
him fill that order. When the appellant did not comply, he asked his relatives
to help him pick the apples. JSM stated he received a phone call at about 9:00
a.m. requesting that a certain amount of apples be ready for pick-up within two
hours. As a result, he telephoned the appellant and told her he needed her to
help to pick those apples and was advised that she could not attend right away
but would try and come later and that if she did not arrive, he should look
after the picking himself. JSM was referred to the entry on the Daily Time
Sheet – tab 7 – for September 11, 2001 indicating the appellant worked 3.5
hours between 8:00 a.m. and 11:30 a.m. to which he responded by stating that if
she was working during that time she definitely did not help him pick apples.
He was not able to explain the confusion surrounding the sequence of events
except he recalled the appellant’s husband had answered the phone when he
called to tell her about the customer’s order for the apples. He confirmed his
wife – Daljit Malhi – was working with him on September 11 even though her
ROE includes hours that she was supposedly working for Jatinderpal Sidhu. JSM
recalled a visit to his residence – on September 25, 2001 – by Brian
Lundgren and Norinder Bansal, a Punjabi-speaking CCRA employee. Daljit Malhi
was also present and JSM identified his signature on the last page of the
interview notes at tab 6. JSM had stated during this interview that he did not
know the appellant was the wife of Param Malhi, a man whom he knew to be
another orchard operator and with whom he had traded equipment and materials
back and forth, as required. He explained that even though the appellant had
worked for him during the entire summer seasons of 2000 and 2001, he did not
know she was Param’s wife and even when he called the appellant’s house on
September 11, 2001, the person responding merely said, "I am her husband,
speak your order and I will pass on the message." JSM was referred to a
Questionnaire ‑ tab 22 – that was returned to the Appeals Officer.
He recalled it had been completed by Susan Kassian but could not recall meeting
with John Mahler and Sekunder Malik on December 16, 2002 at the CCRA office in Penticton. He
stated that when Questionnaires were completed by Kassian, he signed them
because he believed the information contained therein was correct. He denied
that he ever paid employees for hours not worked just to "keep them happy."
[7] In
cross-examination by counsel for the appellant, the witness – JSM – agreed that
whenever Brian Lundgren had visited the orchard, he had not been looking for
the appellant nor was he making any inquiries whatsoever in respect of her
employment with JSM. He confirmed the appellant’s estimate of the height of
various trees as ranging from 10 to 15 feet. He added it is not possible to
view the entire orchard from any particular place and it is sometimes necessary
to walk around the property in order to locate someone who is working at a
particular task.
[8] Brian Lundgren
testified that until his retirement in November, 2004, he had been employed as
an investigator for HRDC for 22 years after having served with the RCMP for 13
years as both a uniformed and plainclothes officer. His most recent posting
with HRDC was as an Investigation Control Officer (ICO) at the Penticton
office where he worked for 4 and one-half years. As an ICO, he responded to
files referred to him including those of the appellant and two other related
files which became the subject of an investigation. As part of his work in this
regard, Lundgren prepared a chart – tab 1 – in which he depicted the relationship
between six persons – 3 married couples – and included information as to the
dates used in the relevant ROE issued by the purported employer to the alleged
employee. The first box in the chart indicated the appellant is the wife of
Param Malhi and that Param issued an ROE to Parmjit Sidhu, wife of
Jatinder (Jatinderpal) Sidhu. Jatinder Sidhu issued an ROE to Daljit Malhi,
wife of JSM who issued an ROE to the appellant. The ROE for Daljit Malhi –
within tab 3 – indicates she worked for Jatinder Sidhu from June 18
to October 6, 2001, the exact time frame used in the ROE issued by Daljit Malhi’s
husband – JSM – the purported employer of the appellant. However, within that
period, the insurable hours worked – 820 - by Daljit Malhi was less than those
– 841- shown on the appellant’s ROE and the insurable earnings - $7,547.84 – of
Daljit Malhi were less than those of the appellant which were stated to be in
the sum of $8,086.07. Again - within tab 3 - Lundgren referred to an ROE issued
by Param Malhi – husband of the appellant – to Parmjit K. Sidhu, wife of
Jatinder Sidhu. According to that document, Parmjit K. Sidhu started
working on June 18 and worked until October 13, 2001 and during said
period worked 867 hours for which she was paid the sum of $8,345.07. Lundgren
stated he requested payroll records from these three employers and spoke to the
workers in the course of his investigation. He stated he received certain
records from Susan Kassian that had been requested from JSM, including
cancelled cheques, time sheets and a copy of a lease between the appellant and
her husband. Lundgren was permitted to refer to his notes – tab 4 – and
confirmed he had visited the JSM orchard at 8:30 a.m. on July 10, 2001. That
day, he knocked on the door of the residence and it was opened by a female who
identified herself as Daljit Malhi and it appeared as though she was caring for
some small children in the house. JSM came out of the orchard to the house and
identified himself. Lundgren served him with a requirement to provide certain
listed documents as authorized by subsection 126(14) of the Act.
Lundgren stated he observed 5 or 6 people picking cherries at the front
right-hand side of the orchard near the highway. He looked around the property
and did not see any other worker. Based on his experience, it was reasonable to
assume that the only type of work to be performed at that time of year would
have been picking cherries since it was too early for any other crops to be
harvested and most thinning is done during May and June. On September 11, he
and Bill Harrington visited the JSM property in order to interview JSM
concerning a worker named Sandhu. However, because JSM’s ability to speak
English was not sufficient, Lundgren and Harrington advised they would return
at a later date with a Punjabi-speaking officer. Lundgren referred to his notes
and refreshed his recollection that they had driven up to a shed from which
point they observed 4 people picking apples. One was JSM, another was his wife
– Daljit Malhi – and they were being helped by two Indo-Canadian males. He and
Harrington walked to the picking area and did not observe the appellant nor any
other persons other than those already identified. In Lundgren’s opinion, he
would have been able to see the appellant had she been present because he was
at the back of the orchard and could see the remainder of the property. There
were no other vehicles in the driveway. In Lundgren’s experience, although
there are different types of apples that mature at different times, he would
expect September 25 to be near the end of the picking season. Lundgren
stated that in the four and one-half years that he travelled around the south
Okanagan area he visited several farms on a regular basis and in his opinion -
based on his experience - most mixed orchards of 10 acres are operated by one
individual or a couple and outside help will be required only during certain
peak picking periods. In his experience, the pruning, spraying, fertilizing,
thinning is done almost all of the time by the owner/operator. When cherries
are ready for picking, it is common to hire young people – usually from Québec
– to harvest the crop and groups of young workers travel from farm to farm
working between one and three days at each place. In the course of his work,
Lundgren stated he obtained a report – tab 16 – concerning the tree fruit
industry in the Okanagan because he wanted to know the amount of time required
to operate a mixed orchard and searched for information about various types of
crops and varieties of apples, 9 in total - because he was interested in the
different maturing dates. At page 7 of said report, there is a comment that "One person
working full‑time off the orchard with occasional help could operate about
up to a 12-acre mixed orchard". The report went on to note that "[P]ast
15 acres, it would be very difficult for an orchardist to work full-time
off the orchard unless there was another family member who could work full-time
on the orchard." Lundgren stated that although he requested the report be
prepared, he had no involvement whatsoever in the content thereof. In the
course of his work at the HRDC Penticton office, Lundgren estimated he
conducted about 200 investigations per year. After completing his
investigation of the appellant’s file, he formed the opinion that she had been
part of an artificial arrangement to create the illusion of employment and as a
result referred her file to CCRA for a ruling on insurability. Lundgren stated
– in response to a question from the Bench – that in his opinion 5 or 6 pickers
working with JSM could pick one acre of cherries per day and agreed with the
comment in the industry report that a top picker could pick 8 or 10 bins per
day and that 40 to 42 bins per acre would be required over the course of 5 days
for one person to pick an acre of apples. Lundgren stated that 841 hours –
the amount shown on the appellant’s ROE – seemed to be excessive because his
experience led him to conclude that the majority of orchardists did most of the
work themselves other than picking cherries and/or other crops during peak
periods. Apples were an easier crop to pick and different varieties matured at
different times, unlike cherries which were ripe more or less at the same time.
Lundgren agreed that between 300 and 400 hours of hired labour per season would
be reasonable for a 10-acre mixed orchard.
[9] In
cross-examination by counsel for the appellant, the witness ‑ Brian Lundgren –
acknowledged there is one type of apple that is harvested in October. He
recalled the JSM orchard was rectangular - more deep than wide - and that the
trees were older which meant they were taller than the newer varieties. He
confirmed that during his visits he had not been searching for the appellant
but was merely noting what he observed and/or did not see during the times
spent there. Counsel referred Lundgren to his notes – tab 6 – of the interview
with JSM conducted by himself and Norinder Bansal on September 25, 2001 and to
the recorded responses of JSM where he stated he had one employee ‑ Kulwinder Malhi
– and that she also did some "thinning and farm work." In response to
the question posed by Lundgren, "Where is she right now?", the
recorded response of JSM was "She’s out working". Lundgren stated he
did not follow up with any more questions in relation to the appellant because
she was not the subject of any investigation at that time and was not
particularly concerned with her whereabouts.
[10] John Herman
Mahler testified he is a Rulings Officer employed by CCRA and has been so employed
since August, 1997. He was assigned to issue the ruling in respect of the
appellant’s alleged employment with the payor. He reviewed a case report and
the worker’s application for UI benefits as well as her ROE and certain other
documents including the lease agreement between the appellant and her husband.
He spoke with Brian Lundgren and examined time sheets. He sent a Questionnaire
– tab 21 - to the appellant and it was returned to him by Susan Kassian
who completed it on her behalf. On December 16, 2001, with Sekunder Malik
- a Punjabi-speaking employee of CCRA - he interviewed the appellant in the
presence of her husband, Param. Notes of the interview are included in the
typed sheets at tab 20. Mahler stated he confronted the appellant with the information
that Lundgren and Harrington had been at the JSM property on September 11 but
had not seen her there. The appellant responded that she did not recall any
visitors but remembered nothing of that day. With respect to the missing amount
of $725.94 for the pay period - July 30 to August 12 - Mahler noted that the
appellant initially stated she had not received any cash but thereafter added
she did not recall receiving $625 in cash. The Questionnaire sent by Mahler to
JSM was never returned but he did interview JSM on December 16, 2001. According
to Mahler’s typed notes – within tab 20 – JSM stated he paid the appellant $10
per hour and that she had signed receipts for cash he had paid her, although he
did not provide any copies at that time for examination. When asked about the
appellant’s work on September 11, Mahler noted JSM stated that the appellant
had worked "for a while" but went home sick and added he may have
given her an extra hour "bonus time", something he did for workers
from time to time in order to "keep them happy." Mahler stated that
when Susan Kassian was informed there was no cheque to match the amount of
$765.94 within a particular pay period, her response was that she would attempt
to find the cheque and there was no mention – by her – of any payment of wages
in cash. On March 28, 2003, Mahler and Tar Deol – a Punjabi-speaking colleague
– visited the home of JSM and Daljit Malhi. An interview was conducted
with JSM and he was asked about his answer to question 12 on the Questionnaire
– tab 23 – received by CCRA on January 6, 2003 – wherein the written response
regarding method of payment to the appellant was "cheque." Mahler
stated when asked to confirm that answer, JSM stated the appellant had been
paid between $500 and $700 in cash and produced a receipt book which was unused
except for two non-numbered receipts – tab 24 - dated August 20, 2001 and
August 25, 2001, in the sums of $500 and $125, respectively. In Mahler’s
opinion from having visited the JSM orchard, the configuration was U-shaped and
as one drove down a lengthy driveway, parts of the orchard were clearly visible
in a manner that would allow one to see if someone was working there.
[11] In
cross-examination by counsel for the appellant, the witness ‑ John Mahler –
agreed he had not looked behind the shed nor did he recall a cabin located on
the orchard. Mahler stated that the process he followed during his interviews
with the appellant was to ask the question and wait for it to be interpreted in
Punjabi and for the interpreter to receive the answer in Punjabi and interpret
it in English so he could write it down. Later, he typed his handwritten notes.
[12] Carin Amber
testified she has been employed by CCRA for 20 years and has been an Appeals
Officer for 14 years. She was assigned the appellant’s file and prepared the
CPT 110 – Report On An Appeal - at tab 29. In arriving at her decision, she
reviewed documents forwarded to her by HRDC together with the application for
appeal and correspondence as well as information accessed from the CCRA
computer system. She reviewed the Questionnaires - tabs 30 and 31 – and
examined summaries of income tax information filed by JSM with respect to his
orchard income. She accessed information and obtained a printout – tab 36 – of
amounts paid by JSM to employees for the years 1999 to 2002, inclusive. In
2001, the appellant was the only employee that JSM provided with a T4. Amber
reviewed the printout – tab 37 – of the information provided by JSM in his tax
returns for those years. Amber noted that as farm income rose, wages were
reduced. She also considered that the appellant was unable to prove she had
been paid for the amount of insurable earnings stated in her ROE. She also
considered it unusual that Lundgren had not seen the appellant working on the
JSM farm even though he visited the property on three separate occasions. She
noted that the circumstances relevant to the appellant included the fact there
were three spouses, all of whom had leased their interest in their own orchards
to their respective husbands, who purported to work for another of the husbands
in a circular arrangement with the result they could qualify for UI benefits
whereas if they had worked – instead - on their own land, they would not have
been eligible because they were owners. Having regard to all the facts, Amber
decided the appellant had not performed work for JSM – as alleged – and that if
any work had been done, it was performed within the context of an exchange of
work or services which does not constitute insurable employment within the
meaning of the Act.
[13] In
cross-examination by counsel for the appellant, the witness ‑ Carin Amber –
stated she had not been aware that when Brian Lundgren had attended at the JSM
orchard on three separate occasions, he had not been looking for the appellant
but had been investigating an unrelated matter. Amber stated that even if she
had been able to conclude that the appellant had worked on the JSM farm, she
would have considered the whole arrangement involving the three husbands and
three spouses as nothing more than an exchange of work or services. She also
took into account that during an interview, the payor stated all work had been
finished by September 25, yet the appellant’s ROE stated her last day of work
was October 6, 2001. Amber agreed orchard work is seasonal and that start and
end times could vary within the Osoyoos/Oliver area. Amber also noted that on
two occasions when Lundgren visited the JSM orchard, Daljit Malhi was
present even though she was supposed to have been working for Jatinder Sidhu.
[14] In
re-examination, Carin Amber referred to the printout – tab 36 – indicating JSM
had issued a T4 to his wife – Daljit Malhi – in 1999.
[15] Counsel for the
appellant submitted the evidence established that the work was performed by the
appellant for the payor. In counsel’s view of the position taken by the
respondent, there was too much reliance placed on the allegation – by Lundgren
– that he did not see the appellant on the JSM property during any of the three
visits. However, the appellant – during that time – was never the subject of
any inquiry and Lundgren was asked one year later if he recalled having seen
the appellant on that site. Counsel referred to the proof of payment by cheques
issued to the appellant and submitted that is not consistent with some sort of
barter system. Further, people are entitled to arrange their affairs in order
to qualify for UI benefits or to minimize taxation provided they are
acting pursuant to legal obligations within a legitimate framework. Counsel
pointed out that there was no evidence capable of sustaining the conclusion
that any of the money paid by JSM to the appellant had been repaid by her.
[16] Counsel for the
respondent submitted the decision of the Minister should be confirmed. Having
regard to an overview of the entire situation, counsel submitted the evidence
permits one to draw the conclusion that there was a deliberate scheme concocted
by the appellant and her husband, and Jatinderpal Sidhu and his wife, and JSM and
his wife whereby one wife would be employed by another husband after having
leased – to her own husband - her 50% interest in their home orchard. Counsel
pointed to many inconsistencies in the appellant’s case including details of
alleged cash payments which appeared to be nothing more than an attempt to make
the remuneration match the insurable earnings as stated in the ROE. The time
sheets had discrepancies and there were unexplained anomalies concerning her
hours of work and the method of recording her time. Counsel submitted the
evidence concerning September 11 – a day seared in the memory of most people –
was contradictory and while involving only a few working hours was indicative
of the lack of consistency between the appellant and the payor about her
supposed duties. Counsel submitted it was difficult to accept the proposition
that JSM did not know the appellant was the wife of Param Malhi and/or that JSM
was unaware his wife – Daljit – was working for Jatinder Sidhu and/or that
Parmjit Sidhu was working for Param Malhi bearing in mind the small
geographical area involved and the fact all were engaged in the same industry
and attended the Sikh temple in Oliver.
[17] Insurable
employment is defined by subsection 5(1) of the Act and reads as
follows:
5.(1) Subject to subsection (2), insurable employment is:
(a) employment
in Canada by one or more employers, under any express or implied contract of
service or apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other person and whether
the earnings are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise;
(b) employment
in Canada as described in paragraph (a) by Her Majesty in right of Canada;
(c) service
in the Canadian Forces or in a police force;
(d) employment
included by regulations made under subsection (4) or (5); and
(e) employment
in Canada of an individual as the sponsor or co‑ordinator of an
employment benefits project.
[18] The relevant
provision concerning excluded employment is paragraph 5(2)(g) of the Act
which reads:
(g) employment
that constitutes an exchange of work or services;
[19] In the case of Lévesque
v. Canada (Minister of National Revenue – M.N.R.), [1987] T.C.J. No. 430, Labelle, D.J.T.C. dealt with
the case where two families operated two businesses, a farm and a butcher shop.
The farmer worked in the butcher shop and the butcher worked on the farm for
services of equal value. The two wives worked for each other’s husband, for
equal value. Judge Labelle found that the periods of work in question were the
exact periods the employees needed in order to qualify for UI benefits and that
the workers were not supervised by their alleged employers. After referring to
earlier cases involving fact situations that had been found to constitute an
exchange of work or services, he concluded – at p. 6 – by stating:
Given
the facts proved, namely, the same amounts for services rendered by Antoine and
Omer Lévesque, that is, $3,850.00, the amounts for services rendered by Mona
and Frances Lévesque, within $9.00, the periods of employment that were
exactly those required for unemployment insurance benefits, the termination of
the employment after these periods and no employment previously, it seems clear
to me that this was a ruse by the appellants and not a contract of service. The
services rendered were not hired out; they were exchanged and if there was
employment, it was excepted employment under section 3(2)(i) of the
Unemployment Insurance Act, 1971.
[20] In the case of Bhatti
v. Canada (Minister of National Revenue – M.N.R.), [1998] T.C.J. No. 290,
Margeson T.C.J. considered the appeal of a seasonal farm worker who started her
own labour contracting firm supplying workers to various farms, including the
one where she was working for a salary of $500 per week. That worker purported
to hire that particular farm owner as one of her employees of the labour
contracting entity to work on his own farm. The relevant facts were set out in paragraph
52 of the judgment, as follows:
There was some evidence given about the nature of the working
arrangement, but there was no attempt made to address specifically the
references in the Reply. Where they were not addressed, they certainly were not
rebutted. Some of those presumptions in the Reply were:
(b) Sahota operates a farm on 250 acres, some of which she
owned and some which she leased;
(c) in the Period and in the ten preceding years, the Appellant
had been employed by Sahota as a supervisor of Sahota's farm workers;
(d) in 1995, the Appellant started a business called Bhatti
Labourers;
(e) the nature of the Appellant's business was to provide
labourers to various farms for a predetermined rate per each worker supplied;
(f) the Appellant engaged her spouse, Opinder Bhatti, to
manage Bhatti Labourers
(g) Sahota was engaged by Bhatti Labourers on July 10,
1995 as a farm worker and was sent to work on her own farm.
That has been
disputed and so to that extent the Court does not accept that presumption. The
rest of it has fairly well been established.
(h) Sahota was paid $400.00 per week by Bhatti Labourers to
work on her own farm under the supervision of the Appellant, who had been hired
as a supervisor;
(i) the Appellant was engaged by Sahota on July 3, 1995
and was paid $500.00 per week by Sahota to supervise farm workers, one of whom
was Sahota, who were supplied by the Appellant's own business; and
(j) the employment of the Appellant represented an exchange of
work or services between the Appellant and Sahota.
There are some
suspicious circumstances with respect to this alleged contract of service.
[21] At paragraph 54
and following, Judge Margeson continued:
The Court is satisfied that the remuneration paid to Ms. Sahota,
the alleged worker and the Appellant who was the owner of "Sahota"
was certainly very similar. There was only $100 difference between the two
remunerations.
The time periods during which the two parties worked were very similar.
There was only a week difference. The work period of Ms. Sahota certainly was
completely included within the period of time during which the Appellant
worked. That raises some suspicions.
The job description of the two parties was somewhat similar. It is true
that there was some evidence that it was not exactly the same, that Ms. Bhatti
did some different work than Ms. Sahota did, but nonetheless, the type of
work they did was substantially the same. The evidence showed that the work was
similar enough to raise suspicions.
Two businesses were operated, one by the Appellant and one by the party
who was alleged to have been involved in a work exchange program. Those
businesses were quite similar, at least the work provided was similar. One
hired the other to work for the other business during the period in issue.
It is highly suspicious that this was a work exchange program and the
Court has to look at the evidence "in toto" in order to decide
whether that is the case. The total factual situation is highly suspicious.
On top of that, in this particular case there are some anomalies. For
instance, the evidence indicated that the Appellant did indeed receive a
considerable amount of her remuneration on November 17 and December 10, 1995.
The work period was considerably different than that. There were only three
cheques which were issued during the whole period of time although the manner
of pay was described as being a weekly salary. The cheques indicated that the
pay was received in lump sums, large amounts.
Another anomaly, of course, was the fact that the Appellant wrote a
cheque to the purported employer on November 2, 1995 for $380.50. It is
strange, first of all, that there would be an overpayment of wages. If a person
was being paid $500 a week, one would expect that there would be no problem in
deciding how much was owed at any particular point in time. It is even stranger
that the Appellant would write a cheque back for what was purportedly an
overpayment of her wages on November 2, when she did not even complete her
employment until November 11, 1995.
It would be even stranger, that the Appellant, if this was a normal
employer/employee relationship, would have received a cheque for $1,035 on May
17, 1995, when her work was not even due to start until July 3, 1995 and she
actually was not employed until then.
The Court finds that under the circumstances disclosed by the evidence
here, bearing in mind the cases that have been referred to, although the
factual situation here is not exactly the same as in those cases, it is not on
all fours, those cases and the present case are similar enough to lead the
Court to conclude that those cases are quite applicable on the present facts.
Even though the time periods here were not exactly the same and the
amounts of pay were not exactly the same, when the Court looks at all of the
evidence, gives to the evidence the weight that it deserves, looks at the
anomalies which the Court has described, the Court is satisfied that what took
place here was an exchange of work or service during the periods of the engagement.
As in the cases referred to, this Court is satisfied that the
Appellants entered into this arrangement in order to achieve unemployment
insurance benefits for each other, which they could not have achieved had they
been working for their own businesses or worked for their own husbands.
In this particular case, of course, both of these workers were
experienced workers, not inexperienced workers as they might have been in
Allain, supra, but that is not a sufficient difference to find that that case
is not applicable to the factual situation here.
The Court finds that on the preponderance of the evidence there was an
exchange of work and that the Appellant's employment is excepted under
paragraph 3(2)(h) of the Act.
The appeal is dismissed and the Minister's determination is confirmed.
[22] With respect to
the issue of exchange of service, the respondent relied on the following
assumptions of fact as set forth in subparagraphs 5(q) to 5(w), inclusive, of
the Reply, as follows:
q) the Appellant and her spouse Param Ravinder Singh Malhi
("Param") own an 10.9 acre orchard of mixed fruit in Oliver of
British Columbia;
r) the Appellant leased her interest in the family property
to her husband Param for $500.00 per year plus payment of the mortgage and
taxes;
s) a third couple, Jatinderpal Singh Sidhu
("Jatinderpal") and his spouse Parmjit Kaur Sidhu
("Parmjit"), also own a 6.5 acre mixed orchard in the Oliver area;
t) Parmjit leased her interest in the family property to her
husband Jatinderpal for $500.00 per year plus payment of the mortgage and
taxes;
u) the Appellant received a record of employment from the
Payor covering the period from June 18 to October 6, 2001;
v) Daljit received a record of employment from Jatinderpal
covering the period from June 18 to October 6, 2001 with 841 hours of
employment and earnings of $7,547.00; and
w) Parmjit received a record of employment from Param covering
the period from June 18 to October 13, 2001, with insurable earnings of
$8,345.00.
[23] The evidence
established that the lease agreement – tab 12 - between JSM and his wife –
Daljit Malhi – was dated December 1, 1997 and had a 5-year term. The agreement
was signed by both parties and witnessed by Susan Kassian, the accountant for
JSM. The agreement did not require any payments to be made by JSM to his wife
for leasing her interests in the home orchard property. The Minister
erroneously assumed – at subparagraph 5(c) of the Reply - that said lease
called for an annual payment of $500 per annum by JSM to his wife.
[24] The facts in the
within appeal are different than those often encountered in this sort of
appeal. Usually, an exchange of services involves only two parties who hire
each other or the spouse of the other person under an arrangement where the
remuneration is more or less equal and the periods of employment are identical
– or nearly so – and are of sufficient duration to qualify – barely – for UI
benefits. In this case, husband #1 hired the wife of husband #2 who employed
the wife of husband #3 who hired the wife of husband #1 in order to complete
the circle. Each of these women was a joint owner – with her husband - of the
orchard property on which the family home was located and – without more –
would have been a partner in the business being carried out on that land. By
working as a farm labourer on their own property, the appellant and the other
women would not have been eligible to receive UI benefits at the end of the
season. Apparently, the position taken by HRDC with respect to the appellant’s
eventual employment – by her husband – in 2002 and 2003 was that she had been
engaged in insurable employment because she had provided her services wholly
with respect to an orchard property leased by her husband from a third party
and none of the insurable earnings flowed from work done on the home property
in which she held a 50% interest. However, the Minister’s decision in the
within appeal was based on the belief that the three husbands and their wives
hatched a scheme to give the appearance that work was being done on the other’s
farm in a rotational arrangement so as to avoid the appearance of a bilateral
exchange of services and by so doing attempted to create a baffle or filter to
camouflage the true nature and purpose of those employment transactions.
However, the question remains, if the work was done, can it be said that this
method of arranging one’s personal affairs contravenes the letter of the law as
found within the relevant provision of the Act? The key question
to be answered is whether the appellant in the within appeal is able to
establish that there was a genuine employer-employee relationship and that the
employment was real and not merely a ruse or subterfuge.
[25] The evidence of
the appellant is not particularly strong in many instances such as her
description of the method of keeping a record of her hours or the tasks
performed. Her explanation of events surrounding her alleged work performed on
September 11 conflicts with that of her employer who offered up more than
one version in the course of his interviews with HRDC investigators. In 2001,
JSM earned the small sum of $444 in the form of employment income but had
$11,546 net income from his orchard. The appellant stated that one person can
operate a 10‑acre orchard provided pickers are hired for certain crops
and this view was bolstered by Lundgren, an ICO well-versed in farm labour in
the south Okanagan area and by a technical report prepared for the benefit of
the Agricultural Compliance Team (ACT) in May, 2002. The question then arises,
why was it necessary for JSM to hire the appellant to work 841 hours - at a
cost to him of $8,086.07 - if he could do the work himself except for hiring
itinerant cherry pickers when the need arose. Similarly, why did Param Malhi –
husband of the appellant – need to hire Jatinder Sidhu’s wife – Parmjit - for
the period from June 18 to October 13, 2001 in order to work on the 10.9
acre orchard owned jointly with his wife, the appellant. Further, it makes even
less sense that Jatinder Sidhu would need hired labour to operate his
smaller - 6.5-acre - mixed orchard, to the extent he had to employ Daljit Malhi
– wife of JSM and employer of the appellant - for a period that coincided
exactly with the one stated in the appellant’s ROE, although she purported to
have worked 21 less hours than the appellant. The evidence does not support the
appellant’s contention that she was still picking apples as late as October 6,
2001. In any event, it is reasonable to conclude on all of the evidence that
the apple harvest was finished by September 25, 2001 with or without the
assistance of the appellant.
[26] There is the
matter of the discrepancy in the appellant’s pay. Her cheques do not match the
payroll summary – tab 8 - produced by JSM to HRDC. There is no cheque to match
the pay period from July 30 to August 12, 2001, although other cheques do
conform to the amounts set forth in said summary and – twice – one cheque
was issued to cover two pay periods. In order to explain the missing money, the
appellant and JSM offered up the story about her receiving two payments in
cash, totalling $625. The receipts produced later are purely an afterthought in
order to create some paper to back up their story but those efforts are not
worthy of belief, particularly when one considers the evidence of Lundgren that
the so-called receipts were produced from an otherwise empty receipt book and
JSM’s own accountant had sent him a fax indicating she was attempting to find
the missing $765.94 cheque to cover the missing pay period.
[27] In order to find
that the unusual arrangement in the within appeal is genuine, one has to accept
that each of these three wives chose not to work on her own orchard and that
each of three husbands found it reasonable from a business perspective to hire
labour rather than utilize the services of his own wife - and joint owner - of
that very orchard. The reason given by both the appellant and JSM was that the
former did not like working with her husband and the latter explained that his
wife would not take instructions from him and could not do certain types of
work in any event. That sort of explanation is not unreasonable and I must keep
in mind the appellant had never worked on their home orchard from the time it
was purchased in 1996 and that even when she worked for her husband in 2002,
2003 and 2004, it was not on their own orchard but on a separate property
leased by her husband. Another point to consider is that the lease agreement
between JSM and his wife was dated December 1, 1997 and in the absence of any
evidence to the contrary that date must be presumed correct. However, the
critical issue to be determined is whether the appellant has established that
she performed services for JSM, as alleged or at all. One circumstance needs to
be considered in the overall context of the scheme alleged by the Minister. It
is more than a bit odd that on two occasions when Lundgren visited the JSM
farm in the morning, Daljit Malhi was present instead of being at her job at
the Sidhu orchard. As for Lundgren not seeing the appellant at the JSM orchard
on any of the three occasions he visited, that evidence must be weighed by
keeping in mind the fact he was not there on any of those occasions for the
purpose of searching for the appellant or to note her presence or absence. At
best, his testimony in that regard was his recollection of an event upon being
asked a year later for his opinion whether the appellant was present.
[28] There is an issue
arising concerning the meaning of "exchange". The Canadian Oxford
Paperback Dictionary, Oxford University Press, 2000 edition, defines it this
way:
1. the
act or an instance of giving one thing and receiving another in its place.
[29] In the context of
the Act and bearing in mind the purpose of the provision barring an
exchange of work or services from insurable employment, it is reasonable to
conclude that an exchange does not have to be bilateral when the evidence
demonstrates the existence of an arrangement between two or more parties, the
purpose of which is to create the illusion of legitimate employment between
parties who are not related in accordance with relevant provisions of the Income
Tax Act. The testimony of JSM that he did not know the appellant was the
wife of Param Malhi is not believable. He and Malhi are engaged in the same
industry, knew each other, occasionally exchanged materials and equipment and
went to the same temple in Oliver, a small town. To believe that JSM did not
know his wife was working for Jatinder Sidhu is extremely difficult when one considers
these three orchards were within 6-10 km. of each other. The lease agreement ‑ tab 11
– between the appellant and her husband was entered into because she
encountered difficulty with her UI benefits arising from her joint ownership of
their orchard land and/or business and believed it would be easier for her to
qualify if she no longer participated in their orchard except to receive an
annual payment in the sum of $500. Although there was no direct evidence in
this regard, that seems like a small amount to pay in order to lease a one-half
interest in a 10.9‑acre orchard even if the husband/lessor was
required to bear all the costs of maintaining the overall property including
mortgage payments.
[30] The issue boils
down to this. Has the appellant demonstrated on a balance of probabilities that
she was engaged in insurable employment with JSM during the relevant period?
Taking into account all of the evidence, I find she has failed to do so. The
overall circumstances relevant to her appeal are such that it is highly
unlikely that she performed the work as alleged or at all. She had the burden
of proving her employment was real and that she performed the work and received
payment for services rendered in accordance with the ROE issued by her employer,
upon which she based her entitlement to claim UI benefits. Even if some work
was performed by the appellant for JSM, those services were part of an
arrangement constituting an exchange of work or services and were thereby
disqualified from the category of insurable employment. The mere fact that a
person receives – and deposits into a personal account - cheques from a
purported employer does not prove that the money paid was pursuant to a genuine
employer-employee relationship.
[31] I am satisfied
the decision of the Minister is correct and it is hereby confirmed.
[32] In the event I am
wrong in concluding the appellant’s employment with JSM was not insurable
because it constituted excluded employment on the basis said employment was an
inextricable component of a scheme to create an exchange of work or services
between three purported employees and three purported employers, I would have
found the appellant’s insurable earnings were in the sum of $6,997.02 even if I
had decided that she actually performed work for JSM. Since there was no
credible evidence that she received cash or any payments other than as
represented by the copies of cheques - tab 9 - I would have reduced her
insurable hours – from 841 to 828 due to a combination of an addition error – 10
hours - in her time sheet and by an additional 3.5 hours because there was no
reliable proof she worked at all on September 11, 2001 and that reduction of 13.5
insurable hours - at $9 per hour plus holiday pay – has been taken into account
in determining the amount of insurable earnings.
[33] In accordance
with these reasons, the appellant’s appeal is dismissed.
Signed at Sidney, British Columbia, this 16th day of May 2005.
D.W. Rowe
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