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Citation: 2004TCC635
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Date: 20040927
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Docket: 2003-4233(EI)
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BETWEEN:
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JOHN MURRAY CALDER,
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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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and
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G.H. DONALDSON ENTERPRISES,
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Intervenor.
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REASONS FOR JUDGMENT
McArthur, J.
[1] The only issue in this appeal is
to determine the number of insurable hours worked by the
Appellant for the Intervenor from November 5, 2001 to November 1,
2002. The Minister of National Revenue (the Minister) and the
Intervenor maintain 711 hours and the Appellant submits he worked
1,011 hours. Apparently, he required 1,000 hours to benefit under
the Employment Insurance Act (the Act). The
Appellant and Mr. Donaldson[1] were the only witnesses.
[2] The Appellant is a retired
commercial artist. In 2001, he retained the Intervenor to repair
his sailboat. He could not afford the repair bill and arranged to
pay by working for the Intervenor.[2] The Appellant's primary work was
sandblasting but he also performed handyman-type duties. He was
held in high regard by Mr. Donaldson particularly for his newly
acquired sandblasting skills. Unfortunately, serious differences
developed between the two men over the number of hours worked and
the amount of salary owing to the Appellant. While they were
courteous, the tension between them in Court was obvious.
[3] The only period in issue is from
November 5, 2001 to April 30, 2002. From November 5, 2001 to
April 30, 2002, the Appellant recorded 302 hours[3] worked and Mr.
Donaldson recorded that he worked only 22 hours, a difference of
280 hours. From May to November 2002, the Appellant's hours
were kept by a time-clock and accepted by the Appellant as being
688 hours.
[4] The Appellant submits that the
barter or swap arrangement be ignored for the purposes of this
hearing. Briefly stated, his evidence was that he kept a detailed
record of his hours worked from November 5, 2001 to April 30,
2002 which totalled 302 hours. This compilation, filed as Exhibit
R-1, appears to have been prepared some time after the work
period although he was not cross-examined on this point at
any depth. No original notes or records were presented from which
Exhibit R-1 could have been prepared. At least for the
relevant six months, he states he was paid sporadically yet only
one cancelled cheque was submitted for this period. I infer that
payment for additional hours was paid by way of credit towards
the Appellant's account to the Intervenor.
[5] The evidence and timekeeping
documents on both sides were unsatisfactory. Mr. Donaldson
testified that the Appellant did not work anywhere near the hours
claimed. He further added that, for the most part, the Appellant
was working for G. Herb Donaldson and family personally because
he was paying off the amount owing to G.H. Donaldson Enterprises
for the boat repairs. This reasoning does not make much sense.
The Minister's counsel did not ascribe to that position. She
stated that the business was not an incorporated entity, and that
Mr. Donaldson and the enterprise are one and the same.
[6] The Appellant has sued Mr.
Donaldson in Small Claims Court for unpaid wages and Mr.
Donaldson has attempted to have the Appellant charged with fraud,
without success. We have two well-spoken senior citizens locked
in a bitter dispute.
Analysis
[7] Section 9.1 of the Employment
Insurance Regulations reads:
Where a person's earnings are paid on an hourly basis, the
person is considered to have worked in insurable employment for
the number of hours that the person actually worked and for which
the person was remunerated.
The last phrase presents a problem for the Appellant. We do
not know if the Appellant was remunerated for the first six
months. Both parties remained silent with respect to the
work-exchange arrangement. The only evidence of remuneration was
the payment by cheque of $200 on December 23, 2001.
[8] The Appellant in his closing
argument mentioned that Mr. Donaldson's boat work totalled
$1,600, of which the Appellant paid $1,200. Obviously, there
could be no cross-examination with respect to this remark and I
do not accept it as evidence. While I am asked by both parties to
ignore the work exchange, it is a highly relevant factor for the
Appellant because he has to establish that he was remunerated for
the hours he worked. Without evidence of remuneration, he cannot
succeed.
[9] I am left with the following with
respect to the first six months, November 5, 2001, to April
30, 2002:
(a) The Appellant worked for the
Intervenor to pay an uncertain amount which he owed to him;
(b) There are no daily worksheets or
timesheets prepared to record the time the Appellant worked;
(c) The record of time worked in
Exhibit R-1 was prepared by the Appellant from memory sometime
after the fact;
(d) Mr. Donaldson accepts that the
Appellant worked more than the 22 hours. The additional hours the
Appellant worked were to pay the boat services' invoice and
the work was rendered to Donaldson and his family and not to the
business. (This is inconsistent with the fact that the
Appellant's indebtedness was to the business and not the
family although nothing falls on it.)
(e) There is also a disagreement
as to whether the Appellant sandblasted an old Ford truck in
April or June 2002;
(f) There is but one cheque in
evidence, for the first six-month period, Exhibit R-4. It is
dated December 23, 2001 for $200. It does not specify what it is
for. It is written on the account of "G.H. Donaldson
Enterprises The Welding Works" payable to Murray Calder. The
Appellant was paid at the rate of $10 per hour so this would
include 20 hours;
(g) The Appellant never submitted
invoices to the Intervenor for his services rendered;
(h) The Intervenor stated he kept time
records every day the Appellant worked. The only record he
entered for the first six months was Exhibit R-5. The handwritten
note reads as follows:
Murray Calder
2001
Dec. 21 & Dec. 22 Helper on Job
@ Lancaster Davidson House
Dec.
21
7 3/4 hrs
22 7 3/4 hrs
Paid him $200 on cheque #1458
Although he owes us money
I figured it was Xmas and he would
come back and work the amount (cheque)
off plus pay off his balance of
account owing to us.
2002
Jan 9/02
Helper on Sandblast Job
Quarry Point:
7 hrs. Helper time
[10] This is an instance where I need not
find credibility of one party over the other. In accepting or
rejecting testimony, I make no finding of honesty or dishonesty
although the parties' versions vary. Memory is often
selective for basically honest people and their remembered past
may not coincide with the historical past. In attempting to sort
out the evidence, the Appellant had the burden of establishing or
proving that he worked 302 insurable hours from November 5, 2001
to April 30, 2002. I have no doubt that he worked more than 22
hours. Mr. Donaldson's position is that the additional
hours the Appellant worked did not count because it was for
repairs to the boat or it was not rendered to the business but to
the Donaldson family personally. In fact for the purposes of this
appeal, it is vital to know the total hours the Appellant worked
whether for paid wages or to pay the boat invoices.
[11] The boat repair services were rendered
by the Intervenor and by inference the work by the Appellant to
repay this debt was for the benefit of the business. In any
event, counsel for the Minister stated, for our purposes, that
the Intervenor and Mr. Donaldson were to be treated as one and
the same.
[12] I accept in evidence the following
portion from a letter dated April 29, 2003 from Mr. Donaldson to
Canada Customs and Revenue Agency:[4]
Our experience with Mr. Calder began when he approached us
about repairing the engine on his large sailboat. He explained to
us that he was retired and on a limited income, but that he would
be able to pay us, over a period of time. Since our involvement
appeared to require mostly labour and time, with a relatively
small amount of materials required, we agreed to his proposal.
When it became apparent that Mr. Calder's "time"
was, in fact, going to be a 'very long' "time",
he suggested that he could do some carpentry work and repairs
around our building, in order to help reduce his indebtedness to
us. Since this seemed to be an satisfactory solution to the
problem, we agreed to Mr. Calder's suggestion.
We first took advantage of this agreement in late December
2001, when Mr. Calder's services were used on a mobile
sandblasting job, as a helper-pot watcher. Mr. Calder's
performance was so impressive, and because it was Xmas time, we
felt compelled to pay him for his effort. He graciously accepted
our gesture ...
[13] The purpose of this appeal is to
determine the hours of insurable employment. This must include
the number of hours actually worked for which the person was
remunerated pursuant to Regulation 9.1. It is agreed that
the Appellant's earnings were to be paid on an hourly basis.
The only record of payment for the relevant period is the $200
cheque which would represent 20 hours. I do not accept the
accuracy of the Appellant's records filed as Exhibit R-1
which were taken from memory after the fact.
[14] It is not my position to guess how many
hours the Appellant worked to offset his indebtedness to the
Intervenor. The question I am asked is the number of insurable
hours the Appellant worked and this necessarily includes the
hours for which he was remunerated.
[15] For these reasons, the appeal is
dismissed.
Signed at Ottawa, Canada, this 27th day of September,
2004.
McArthur J.
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