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Citation: 2005TCC163
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Date:20050425
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Docket:2004-3042(EI)
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BETWEEN:
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DARSHAN KAUR VIRK,
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Appellant,
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And
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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AMENDED REASONS FOR
JUDGMENT
Little, J.
A. FACTS:
[1] The Appellant was born in India.
She moved to Canada in 1997.
[2] The Appellant maintains that she
was employed by Keen Farm Labour Force Enterprises (the
"Contractor") from September 17, 2001 to December 15,
2001 (the "Period").
[3] The Contractor provided farm
labourers to assist in crop harvesting of berries, fruits and
vegetables.
[4] The Contractor's records
indicate that the Contractor employed the Appellant and six other
farm labourers during part of the 2001 year (See
Exhibits A-3 and R-6).
[5] The Appellant testified with the
assistance of a translator that she worked for the Contractor at
two or three locations as a farm labourer during the Period.
[6] After conducting an extensive
investigation of the Contractor's financial records and after
interviewing various people officials in the office of the
Minister of National Revenue (the "Minister") issued a
Ruling (the "Ruling") on February 12, 2003 in which it
was stated that the Appellant was not employed in insurable
employment by the Contractor during any portion of the Period
from September 17, 2001 to December 15, 2001.
[7] The Appellant filed an appeal to
the Ruling and the Minister determined that the Appellant was not
employed in insurable employment by the Contractor during the
Period.
B. ISSUE:
[8] The issue is whether the Appellant
performed services for the Contractor during the Period.
C. ANALYSIS:
[9] Counsel for the Respondent filed a
number of documents in an apparent attempt to support the
position adopted by the Minister.
[10] Kiram Kumari Banwaite, an employer at
HRDC, was called as a witness by Counsel for the Respondent. Ms.
Banwaite testified that she had obtained weather information for
the Fraser Valley area for a number of days during the Period and
she had been advised that the wind blew from 29.92 miles per hour
up to 48.33 miles per hour during certain days in the Period. Ms.
Banwaite said that she carried out this analysis in an attempt to
determine if it was possible to work as a farm labourer when it
rained heavily or when the winds were very high. This information
is contained in Exhibit R-4.
[11] I have compared the number of hours
that were claimed by the Appellant for those days when the winds
were high with the number of hours claimed by the other employees
of the Contractor for the same "windy days" and I note
that the Appellant and the other employees of the Contractor
claimed virtually identical hours during the so called
"windy days". I have concluded that no weight or
relevance can be attached to the information contained in
Exhibit R-4.
[12] Ms. Dhillon, Agent for the Appellant,
filed Exhibit A-1 which consisted of photocopies of cheques
payable to the Appellant. Exhibit A-1 contains the following
information on cheques issued to the Appellant by the
Contractor:
1.
September 22,
2001
$337.05
2.
October 6,
2001
$758.77
3.
October 20,
2001
$746.68
4.
November 3,
2001
$752.73
5.
November 17,
2001
$811.35
6.
December 1,
2001
$776.92
7.
December 15,
2001
$752.73
$4,936.23
[13] Ms. Dhillon also introduced a
copy of the Appellant's bank record (Exhibit A-2) which
indicated that cheques totalling $1,095.82 were deposited in the
bank account on November 3, 2001 and cheques totalling $3,840.41
were deposited in the bank account on December 19, 2001 for
a total deposit of $4,936.23. In other words all of the cheques
referred to in paragraph [12] were deposited in the bank
account.
(Note: There was no evidence presented to the
Court to indicate that the Appellant withdrew the deposits that
were made by her to the bank account and gave the money that was
withdrawn to other parties).
[14] Ms. Dhillon said that from her
analysis the Appellant was the only employee of the Contractor
during the Period who was not accepted as an employee by the
Minister.
[15] Counsel for the Respondent said
that there were many inconsistencies in the testimony before the
Court and the testimony given by the Appellant to employees of
HRDC and CRA. Counsel for the Respondent said that as a result of
these inconsistencies I should conclude that on a balance of
probabilities the Appellant did not work for the Contractor
during the Period.
[16] I have carefully reviewed all of
the evidence and the sworn testimony presented to the Court and I
have concluded that the Appellant was employed by the Contractor
in insurable earning from the period September 17 through to
December 1, 2001. Because of some inconsistencies in the
testimony I am not convinced on a balance of probabilities that
the Appellant worked for the Contractor from December 2, 2001 to
December 15, 2001.
[17] The appeal is allowed, without
costs, and the Appellant will be recognized to have worked
for the Contractor for the hours as outlined on
Exhibit A-3 from September 17, 2001 through to
December 1, 2001.
Signed at Vancouver, British Columbia, this 25th day of April
2005.
Little J.
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