|
Citation: 2004TCC744
|
|
Date: 20041108
|
|
Docket: 2004-825(EI)
|
|
BETWEEN:
|
|
SURINDER PAL KAUR GILL,
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Miller J.
[1] By letter of February 23, 2004,
Canada Revenue Agency (CRA) advised the Appellant, Ms. Surinder
Gill, that: "We have decided that the employment was not
insurable for the following reason(s): your arrangement did not
constitute a contract of service". Ms. Gill appeals that
determination on the basis she worked for Mr. Balraj Gill for the
period from May 26, 2003 to July 31, 2003 pursuant to a contract
of service. The Respondent alleges that the Appellant's
testimony of working 10 hours a day for 70 days is simply not
credible. The Respondent argues that Ms. Gill could only have
entered an arrangement for inflated hours, and therefore she
could not be working pursuant to a contract of service.
[2] The sole issue is whether Ms. Gill
worked from May 26, 2003 to July 31, 2003 pursuant to a contract
of service.
Facts
[3] Ms. Gill married Baljet
Singh Gill in January 1999, and emigrated from India to Osoyoos,
Canada in March of that year. She worked intermittently in
fruit-packing houses in Oliver in 2000, 2001 and 2002. In
May 2003, she applied to work at Mr. Balraj Gill's orchards,
was accepted and commenced work May 26, 2003. She is not related
to Mr. Balraj Gill. Ms. Gill was six months pregnant at the
time. She lived just a brief drive from Mr. Balraj Gill's
orchards. She described her job as "both thinning and
picking fruit". She suggested it was light work. Her answers
indicated that she had a solid understanding of the orchard work.
She testified that she worked mainly 10-hour days, with the
occasional 11-hour day, starting at 5:00 or 6:00 in the morning
and working until 4:00 or 6:00 in the afternoon. She maintained
she did this every day until July 31. She gave birth to her
baby on August 3, 2003, two weeks before her due date.
[4] Mr. Balraj Gill would advise his
workers either at the end of the day or the beginning of the next
day as to which orchard was to be worked. Ms. Gill indicated that
she took two coffee breaks a day which were paid, while the
one-half hour lunch break was not paid. She considered
herself a good worker. Mr. Balraj Gill confirmed this: he
described Ms. Gill as the best worker he ever had.
[5] While Ms. Gill worked, her oldest
child would be cared for by her husband and sometimes by her
husband's grandmother. The grandmother did not testify at the
trial due to hospitalization. Mr. Brian Lundgren, the CRA's
officer who investigated Ms. Gill's file, interviewed the
grandmother, though not realizing it was the grandmother, and was
led to believe that she did not know Ms. Gill and did not babysit
for her. This very brief interview took place through an
interpreter, a family relative. I find it unusual that a
grandmother would state she does not know her
great-granddaughter's mother. Although the grandmother did
not appear, I am not prepared to attach any adverse influence to
that, nor do I attach any weight to Mr. Lundgren's
evidence that, through an interpreter, he was advised by the
grandmother that she neither knew the Appellant nor babysat for
her. I conclude something has been lost in translation.
[6] Ms. Gill recorded her hours and
provided them to Mr. Balraj Gill every couple of weeks. He, in
turn, attempted to submit information with respect to hours to
the independent bookkeeper, Ms. Susan Kassian, on a regular
basis. Ms. Kassian confirmed that she would receive such
material from Mr. Balraj Gill, although not always every second
week. She also confirmed that she did the payroll for Mr. Balraj
Gill, usually every couple of weeks, relying both on papers that
he might have delivered to her or on his verbal instructions,
with papers arriving later. Ms. Gill was paid three times over
the summer as follows:
|
Date
|
Amount
|
Period Covered
|
|
|
|
|
|
June 9, 2003
|
$1,096.44
|
May 25 to June 7
|
|
July 11, 2003
|
$2,192.88
|
June 8 to July 5
|
|
August 11, 2003
|
$1,992.09
|
July 6 to July 31
|
Cancelled cheques were provided evidencing these payments. Ms.
Kassian testified that she usually prepared the cheques for Mr.
Balraj Gill to sign. She occasionally received handwritten
schedules in support of the hours after the preparation of the
cheques. I conclude that with respect to these three cheques they
were prepared on Mr. Gill's verbal instructions.
[7] Ms. Kassian referred to five
computer printouts entitled "Tables on Diskette - Payroll
Deductions for Regular Salary effective January 1, 2003".
One such printout was dated June 9, 2003, with a summary of how
the June 9 cheque paid to Ms. Gill of $1,096.44 was calculated;
two other printouts were dated July 11 with a summary of how
the cheque for $2,192.88 was calculated; and two others were
dated August 11, likewise with a summary of the calculation
of $1,992.09.
[8] Ms. Kassian went over in some
detail the hours worked by Mr. Balraj Gill's 16 employees in
2003. It is unnecessary to review this in such detail. I simply
take from the review that a couple of other workers put in
70-hour weeks, but Ms. Gill appears to have been the only worker
to consistently do so, week-after-week, according to
records referred to by Ms. Kassian.
[9] Ms. Gill attended 15 medical
appointments throughout the three-month period she was working
for Mr. Balraj Gill. These appointments took place mainly in
Penticton or Osoyoos. There was no oral evidence as to what time
of day these appointments took place, though I note on the
handwritten summary of Ms. Gill's hours there were several
days that she finished at 3:30 or 4:00 in the afternoon, three
days that there was a two-hour break during the day and one day
when she did not start until 11:00 in the morning.
[10] Mr. Lundgren testified for the
Respondent. He works in the fraud section of the employment
insurance department. He was referred Ms. Gill's file due to
the excessive hours reported. Mr. Lundgren attended at Ms.
Kassian's office on September 10, 2003. He testified that at
that time a review of her records revealed only six employees of
Mr. Balraj Gill: Ms. Gill's name was not one of them.
Analysis
[11] The issue is whether Ms. Gill was an
employee performing services under a contract of service. If so,
her activity can be considered as insurable employment. The
Respondent argues that Ms. Gill did not perform services under a
contract of service, but pursuant to an arrangement to inflate
hours so that she could qualify for employment insurance
maternity benefits. The Respondent relies on two assumptions
found in the Reply:
5(q) the record of the
Appellant's hours worked was inflated; and
5(r) Gill and the Appellant
entered into an arrangement that a record of employment would be
issued with sufficient hours to enable the Appellant to qualify
for employment insurance maternity benefits.
[12] In addressing the issue of whether
there is a contract of service, I suggest the following process.
First, address whether Ms. Gill's hours were inflated. If
not, that is the end of the matter: Ms. Gill did work pursuant to
a contract of service. If the hours were inflated, determine
whether or not Ms. Gill had an arrangement to do so with Mr.
Gill, so she could qualify for employment insurance benefits.
Next, consider whether the circumstances would lead to a finding
that the arrangement was artificial and that there could not,
therefore, be a contract of service.
[13] The Respondent suggested at trial that
this case is solely a matter of credibility. If I do not believe
Ms. Gill worked the hours she claimed, I must dismiss her appeal.
As I have illustrated by setting out the issues, the
Respondent's approach overlooks the possibility of a finding
that Ms. Gill may have exaggerated her hours, but that she still
did work as an employee for Mr. Gill pursuant to a contract
of service, though for less hours than those for which she was
actually paid.
[14] I will firstly deal with Ms. Gill's
hours of work. Do I believe Ms. Gill worked at Mr. Balraj
Gill's orchards picking fruit in the summer of 2003? Yes, I
do. She exhibited a knowledge of fruit-picking and thinning
that left no doubt in my mind that she experienced firsthand this
work. I accept Mr. Balraj Gill's and Ms. Gill's testimony that
she worked at Mr. Balraj Gill's orchards in the summer of
2003.
[15] Did she however work the hours claimed?
What does the Respondent rely upon in asserting Ms. Gill's
hours were inflated?
(a) No other worker came close
to working those hours. Yet, Mr. Gill testified Ms. Gill was his
best worker. It would not be extraordinary for the best worker to
lead the pack. There was no suggestion any other worker might be
motivated to work such long hours to qualify for benefits.
(b) Mr. Lundgren was unable to find
records supporting Ms. Gill's hours in his September visit to
Ms. Kassian. The evidence was that Mr. Lundgren only found
evidence of six employees as Ms. Kassian's records were
not completed for August. Ms. Kassian testified it was not
uncommon to receive verbal instructions with follow-up materials
in writing some time later.
(c) Ms. Gill was in her last trimester
of pregnancy. It is a challenge to fully appreciate the nuances
and emphasis given in responses through an interpreter. Findings
of credibility, tricky in the best of circumstances, become even
more difficult when screened by an interpreter first through the
question, and then through the answer. This is compounded by the
varying social mores, etiquette, customs and accepted behaviour
particular to different cultures. For example, Ms. Gill's
response that she considered fruit picking in July in southern
British Columbia for 10-hour days, while eight months
pregnant to be "light work", met with the following
response in the Respondent's written submissions:
Response
"The Appellant has come before the Court with a story that
boggles the and said in effect, 'I am to be believed'."
(I presume the Respondent intended to insert the word
"mind" after "boggles the".)
But does such incredulity arise from a background of beliefs
more common to the white North American male than the pregnant
Appellant, newly immigrated to Canada from India? I do not say
this critically but only to highlight that all of us who work in
the justice system must be sensitive to cultural, racial and
gender differences. Credibility cannot be determined by imposing
concepts of what is reasonable through my eyes alone, while
turning a blind eye to what other communities might find
reasonable. The challenge is what other communities do
believe.
(d) Ms. Gill had 15 medical
appointments in Penticton, Osoyoos and Kelowna. Several entries
in the handwritten summary of Ms. Gill's hours would
accommodate time taken during the day for some appointments.
There were not however 15 of such entries.
(e) There is no corroboration
from babysitters. As already indicated, I give no weight to Mr.
Lundgren's evidence regarding his conversation with the
grandmother.
[16] What evidence suggests the hours were
not inflated?
(a) Ms. Gill's testimony that
she worked those hours;
(b) Mr. Balraj Gill's testimony that
Ms. Gill worked those hours;
(c) Mr. Balraj Gill's testimony that
Ms. Gill was his best worker;
(d) Back-up documents supporting the
hours both from Mr. Balraj Gill and Ms. Kassian;
(e) Copies of payroll deductions
from tables on diskette dated June 9, July 11, and August 11;
and
(f) Cancelled cheques evidencing
that she was paid for the number of hours recorded, at three
times during the summer.
[17] The Respondent's position is that
if Ms. Gill lied to the tune of one extra hour, then she is
simply not to be believed, and I must conclude there was no real
contract of service. I am satisfied that if there was any
exaggeration, it was relatively minor compared to the significant
hours I believe Ms. Gill worked at Mr. Gill's orchards in the
summer of 2003. My main concern in not being fully convinced of
Ms. Gill's hours is the lack of evidence surrounding time off
for medical appointments. For example, there is no evidence that
she visited her physician in the evening. Her hours could not
otherwise support that many trips for appointments - when did she
go?
[18] Before considering the result of this
finding, I need to complete the picture by addressing whether Mr.
Balraj Gill had an arrangement with Ms. Gill to inflate the
hours. The only evidence the Respondent offers to support this
contention is the fact Mr. Lundgren's visit to Ms.
Kassian's office in September 2003 yielded no records
pertaining to Ms. Gill. Yet, I have found there were computer
records dated June, July and August, and indeed cheques issued to
and cashed by Ms. Gill in June, July and August. On balance, Mr.
Lundgren's evidence is not sufficient to find there was any
such arrangement between Mr. Balraj Gill and Ms. Gill to
inflate hours, which both Mr. Balraj Gill and Ms. Gill denied.
So, if there was any exaggeration of hours, it was not an agreed
upon arrangement between the employer and the employee. Under
these circumstances is the employer/employee relationship
rendered artificial? I do not believe so.
[19] The Respondent relied on the cases of
Klein v. M.N.R.,[1] Castonguay v. M.N.R.[2] and Polusny v. M.N.R.[3] as
authority for the proposition that if the relationship was
artificial, there is no contract of service. None of these cases
however are on all fours with the situation before me. In
Klein, the issue was whether the Appellant actually worked
at all - clearly there would be no contract if there was no work.
With respect to Ms. Gill, I am satisfied she did in fact work for
Mr. Gill throughout the summer of 2003.
[20] All the Federal Court of Appeal said in
the Castonguay case was:
... That question was not, as he assumed, whether the
contract concluded between the applicant and her alleged employer
was a contract of service or a contract for services; rather, it
was as to whether the contract of employment which had allegedly
existed between the parties was real or artificial.
It does not explore the issue of whether a discrepancy between
hours actually worked and hours reported for employment insurance
benefits purposes renders a contract of employment artificial.
The Polusny case dealt with a total lack of records to
support the period of employment, an entirely separate issue.
[21] I am unconvinced that an exaggeration
of hours by an employee renders a contract of employment
artificial to the point that there is no contract of employment,
except in cases where such exaggeration goes to the fundamental
core of the contract; for example, if a claim to have worked is
not supportable at all, that is, the employee simply did not
work. In such a situation there would be no consideration for a
contract to exist.
[22] The Respondent has not suggested that
there may have been a contract of service for a lesser number of
hours. The determination of the Minister of National Revenue and
the issue raised in this case was an all-or-nothing
approach. In effect, all I have been asked to decide in this
matter is whether in the summer of 2003 Ms. Gill worked for
Mr. Gill pursuant to a contract of service. I have found
that she did. I have not been asked to determine the number of
hours. This result leads the matter somewhat hanging in the
air.
[23] The real issue at stake is Ms. Gill's
entitlement to maternity benefits. I have found that the
Minister's decision that Ms. Gill was not in insurable employment
was incorrect. She was in insurable employment in 2003 under a
contract of service. Her entitlement arises based on the number
of hours worked. Section 6 of the Employment Insurance Act
defines a "major attachment claimant" as a qualifying claimant
with in excess of 600 hours. The Respondent maintains,
notwithstanding the Minister's decision does not mention
hours, that I have jurisdiction to deal with the hours worked: a
reading of sections 90, 91 and 103 of the Act leads to
this conclusion. Yet, the Respondent goes on to suggest that I am
not in a position to exercise this jurisdiction because no
credible evidence has been adduced as to a lesser number of
hours. I disagree.
[24] The Appellant claims to have worked 705
hours. The evidence supports a finding that she worked something
less than that, but still well in excess of 600 hours. I
therefore allow the appeal and vacate the Minister's decision by
finding Ms. Gill was engaged in insurable employment under a
contract of service for in excess of 600 hours during the period
May 26, 2003 to July 31, 2003.
Signed at Ottawa, Canada, this 8th day of November, 2004.
Miller J.
Email this Content