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Citation: 2003TCC79
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Date: 20030221
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Docket: 2002-680(EI)
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BETWEEN:
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JOGINDER SINGH RAI,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
AND
Docket: 2002-1266(EI)
MEENA MANN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 2002-1268(EI)
SOHAN MANN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Dockets: 2002-1317(EI)
2002-1318(CPP)
GURDEV SINGH CHAHAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
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REASONS FOR JUDGMENT
Rowe,
D.J.T.C.C.
[1] The parties
agreed their appeals would be heard on common evidence. Gurdev Singh Chahal and
counsel for the respondent agreed that appeals 2002‑1318(CPP) and
2002-1317(EI) would be heard together within the context of the common evidence
procedure.
[2] The appellant,
Joginder Singh Rai, (Rai) appeals from a decision – dated January 4, 2002 –
issued by the Minister of National Revenue (the "Minister") wherein the Minister decided Rai’s insurable hours -
during his employment with Jaswinder Kooner (Kooner) - operating as Arun
Contractors - (Arun) for the period of July 3 to November 12, 1999 - were 650
with insurable earnings in the sum of $4,647.50.
[3] The appellant,
Meena Mann appeals from a decision – dated January 4, 2002 – wherein
the Minister decided her insurable hours – during her employment with Kooner
for the period of August 5 to November 15, 1999 - were 490 with insurable
earnings in the sum of $3,503.50.
[4] The appellant,
Sohan Mann, appeals from a decision – dated January 4, 2002 –
wherein the Minister decided his insurable hours – during his employment with
Kooner for the period of July 3 to November 15, 1999 - were 456 with insurable
earnings in the sum of $3,258.25.
[5] The appellant,
Gurdev Singh Chahal (Chahal), appeals from a decision ‑ dated
January 4, 2002 – wherein the Minister decided his insurable hours – during his
employment with Kooner for the period of January 5 to October 30, 1999 - were
717 with insurable earnings in the sum of $5,126.55. In the same decision, the
Minister also decided Chahal was not employed in either insurable or
pensionable service with Kooner during the period of October 31 to November 15, 1999
on the basis there was no employer-employee relationship. The appellant filed a
separate appeal – 2002-1318(CPP) pursuant to the provisions of the Canada
Pension Plan.
[6] The decisions
concerning insurable hours and the amount of earnings pertaining to each
appellant were issued pursuant to the relevant provisions of the Employment
Insurance Act (the "Act") and the Employment Insurance Regulations. (the
"Regulations").
[7] Counsel for the
respondent advised the Court that with respect to the appellant, Joginder Singh
Rai, the Minister had re-examined the matter and decided the correct number of
insurable hours was 838 with insurable earnings in the sum of $5989.09.
[8] Counsel also
advised the Minister had re-calculated the insurable hours of employment of the
appellant, Sohan Mann and decided the correct number was 461 with insurable
earnings in the sum of $3,295.25.
[9] The appellant,
Joginder Singh Rai, testified that he began working for Kooner – operating as
Arun – in January, 1999 and his job involved washing and packing potatoes.
During the winter months, the work was not steady but he began working more
hours in June and then full time, beginning in July. The pay rate was $7.15 per
hour and he worked at different farms as directed by Kooner. There were no
fixed hours of work and each day was dependent on weather and the amount of
work required to be done in accordance with the demands of the growing season.
Rai stated Kooner’s wife recorded his hours of work. Kooner used a van to transport
Rai – and other workers – to and from their homes and the work locations. Rai’s
work year had commenced in January with washing and packing potatoes, onions
and beets. By March, he was planting new cranberries and weeding out old ones.
In May, he was performing – more or less – the same duties but working fewer
hours. Kooner would telephone Rai at home during the evening and advise whether
his services were required the following day. For Rai’s services in January and
February, 1999, he stated he received one cheque and cash payments amounting to
approximately $2,300. One cash payment was $1,300 and other smaller sums added
up to about $1,000. Kooner did not require him to sign a receipt for any cash
payment. Rai stated he had maintained – in a diary - a record of hours worked
and filed a photocopy thereof as Exhibit A-1. He stated he made an entry each
day and when he completed the reporting cards - required in order to receive
employment insurance (EI) benefits during the period between January and May,
1999 - he indicated thereon the number of hours worked during a particular
period which had the effect of reducing the amount of the next EI payment. Rai
stated he received one of the cash payments because his wife was about to
depart for a trip to India and needed the money.
[10] Counsel for the
respondent referred the appellant, Joginder Singh Rai, to a Record of
Employment (ROE) – Exhibit R-1 – and Rai identified it as a document he had
received from Mrs. Kooner. Rai noted the date of July 2, 1999 had been used as
the first day of work - for purposes of completing the ROE - whereas he had
worked at various times during the months of January through May. Rai estimated
the proper insurable hours of work during his employment with Kooner was
approximately 1,100. Rai stated he worked at various farms, including one owned
by Brent Kelly and another one located in the municipality of Langley as well
as at another farm where he looked after some cows. In the first two months of
1999, Rai recalled having worked a significant number of hours and had advised
an official at Canada Customs and Revenue Agency (CCRA) - during an interview
on May 25, 2000 – that he had recorded those hours on his periodic report cards
– sent to the EI benefits claims office - but did not indicate to the
interviewer that he only worked 5 or 6 days per month during this period
compared to 6 days per week commencing in July, 1999. In November, the
available work was reduced and his last day was November 12 when he was injured
as a result of falling from a forklift. Rai agreed he had informed the
individual dealing with his EI benefits application that the injury had
occurred from a fall on some stairs because he thought the cause of the injury
was not a significant matter and did not want to involve Workers’ Compensation
Board (WCB). An initial X-ray had not revealed any problem and he received
treatment from a physiotherapist. The pain continued and he was examined by
another doctor who discovered he had sustained a fracture. Rai stated he did
not make any WCB claim even though the injury had occurred while working at
Brent Kelly Farms Inc. (Brent Kelly Farms) while unloading some packing boxes.
Rai stated he worked 12 or 13 hours on some days but on a couple of occasions
had worked only two or three hours. Rai stated that although he had not
provided the two CCRA interviewers with a copy of his recorded hours of work -
for the period of July to November - he attended at the CCRA offices the next
day - on May 26, 2000 - and had telephoned the office - the day after that - to
confirm that said document had been received. Rai identified a letter – Exhibit
R-2 – dated October 24, 2001- that he had sent to CCRA to which he attached a
sheet upon which he had recorded his working hours as transcribed from his
personal diary. Rai had begun working at the rate of $7.15 per hour but that
had been increased – at some point – to $7.25, probably due to an amendment to
the provincial minimum wage legislation. Photocopied sheets of several cheques
– Exhibit R-3 – were shown to Rai and he acknowledged he had received them
including one dated March 29, 1999 - in the sum of $1,260 - which had been
issued – by Kooner - for payment of work done since January, 1999. There was no
accompanying stub to indicate whether deductions had been taken from a larger
amount. The cheque dated July 15, 1999 – in the sum of $652.43 – and the cheque
dated July 31, 1999 – in the sum of $637.97 – were both received by Rai at the
same time and deposited into his account on August 26, 1999. The two cheques
dated August 15 and August 30, respectively, were deposited on October 30,
1999. Rai stated he did not hold any cheques more than 4 or 5 days prior to
making a deposit. The cheques dated October 15 and October 30, 1999, respectively,
were not received until February 26, 2000. The cash – in the approximate sum of
$1,300 – was received in October or November but Rai did not record the
exact date of that payment nor a smaller payment of $500 and other lesser
amounts totalling approximately $500. Rai recalled informing the interviewers
he had received approximately $1,800 in cash - for the 1999 year - and that he
had also received some cash during the early part of 2000. Counsel informed Rai
that the days he purported to work during April and May, 1999, did not seem to
be the subject of any invoice by Kooner to Brent Kelley Farms. Rai indicated he
would not have any knowledge of the billing methods used by Kooner but stated
he did work at three different locations and was driven there by Kooner and/or
his mother‑in‑law. When shown a comparison of Kooner’s records of
hours worked and his own, Rai stated he was not able to explain the differences
in time for the months of July and August and cannot explain why - on days when
he is certain he worked at a particular farm – that particular Arun client was
never billed by Kooner. Rai stated there was an individual named Nick - an
employee of Brent Kelly Farms - who supervised the work done at that location.
In November, 1999, Rai recorded his hours of work - totalling 21 over the
course of 4 days - while Kooner’s records indicated Rai had worked 85 hours.
Rai stated his records were correct for that period and Kooner’s were wrong.
When Rai received the ROE indicating a total of 980 insurable hours, he
accepted it and presented it to the EI office as a basis for applying for EI
benefits even though he knew he had worked more hours than stated, commencing
in January, 1999, rather than July.
[11] Meena Mann
testified she worked for Kooner and was paid the sum of $7.15 per hour.
She received all her pay in the form of cheques and worked exclusively on the
Brent Kelly Farms property where she was supervised by either Kooner or Nick.
Her duties which included grading potatoes and weeding were performed 6 days
per week, excluding Sundays. Kooner or his driver drove her to and from work.
Depending on need, the hours of work varied from 4 to 10 per day and she
recorded her time on a calendar she has since discarded. During the relevant
period, she had to visit her doctor on several occasions and stated she would
not have worked during those days. Mann agreed that her ROE stated she worked a
total of 730 insurable hours but she did not examine it upon receipt but merely
took it to the EI office. She stated she provided the EI office with a record
of her hours worked but it was not as originally recorded on her calendar
because she had since moved and it had been thrown out.
[12] In
cross-examination, Meena Mann was referred to her Notice of Appeal in which she
stated she had begun working for Kooner on June 4, 1999, although her ROE
refers to August 5, 1999 as her commencement date. Her baby was born on January
3, 2000 and the number of insurable hours – as recorded on her ROE – Exhibit
R-4 - entitled her to maternity benefits. She recalled having been interviewed
by CCRA employees - Nav Chahan and Harby Rai – on May 25, 2000. At that time –
acting on advice received from Kooner – she told them that she had not recorded
her hours of work. Meena Mann was referred to Schedule B of the Reply to her
Notice of Appeal (Reply) in which certain dates and hours worked according to
her records and those of Kooner were set forth. On 3 days between August 5 and
November 5, 1999, Meena Mann had recorded working 9 and 10 hours per day,
respectively, but the Arun records maintained by Kooner either showed she had
not worked or there was no record of any hours. Meena Mann stated she had
visited her family doctor in relation to her pregnancy and also had attended at
another location in order to obtain an ultrasound. Although she had received a
total of $5,219.50 from Kooner, the cheques had not been received promptly for
a particular pay period. A photocopy of cheques – Exhibit R- 5 – was shown to
Meena Mann and she acknowledged having deposited two cheques - dated August 15
and August 30, 1999, respectively - on October 26, 1999. She was not aware of
the number of hours covered by those payments. The cheques dated September 15
and September 30, 1999, respectively, were not deposited until December, 1999,
about the same time as the deposit of two other cheques dated October 15 and
October 30, 1999. She agreed the cheques did not seem to be in sequence since
the cheque dated September 15, 1999 was #0199 and the next cheque – dated September
30, 1999 - was # 0197. The cheque dated October 15, 1999 was #0176, while the
one dated October 31, 1999, was # 0192. The last cheque – dated November 15,
1999 – was # 0190. Meena Mann identified her application for EI benefits –
Exhibit R-6 – that she had completed – and signed - on December 8, 1999. She
also acknowledged having completed a Questionnaire ‑ Exhibit R-7 –
dated August 30, 2001 – and returning it to CCRA. She attached a separate sheet
on which she had recorded hours worked, including days upon which she had
visited her doctor, as set forth at Schedule B of the Reply. Counsel suggested
to Meena Mann that she had recorded a total of 67 hours worked during times
when she was not present according to records maintained by Kooner. Mann replied
she did not know the reason for such discrepancy but believed her employer had
not been honest in dealing with her. Counsel pointed out that for the month of
October, 1999, the records - relied on by her - and those kept by Kooner were
at odds with each other for a total of 20 days. Counsel also referred Meena
Mann to documents produced by Kooner which indicated he had not invoiced Brent
Kelly Farms for days during October, 1999 when she maintained she had worked at
that location. Meena Mann stated she had worked with 7 or 8 other people at
Brent Kelly Farms and that as many as four people would ride together in the
van. She recalled working with Gurbax Sanghear and an older couple she referred
to only as "Uncle" and "Auntie", in accordance with custom in
the Indo-Canadian community. She maintained she had worked a total of 92 days
in November, 1999 even though the records of Arun do not reveal any billing to
Brent Kelly Farms for labour provided by Arun workers during that month. She
stated she worked for Kooner alongside her father – Sohan Mann - and her
mother. Her father had begun working for Kooner, followed by her mother and
then she had joined them. She denied the suggestion of counsel that Kooner had
issued her an ROE showing sufficient hours to entitle her to maternity benefits
even though she had not actually worked those hours. She also denied that some
hours actually worked by her father had been attributed to her by Kooner – for
purposes of the ROE - in order to accumulate enough insurable hours for the
benefits sought.
[13] Sohan Mann
testified he worked for Kooner - beginning in May, 1999 – even though the
relevant period relating to his appeal from the decision of the Minister
pertained to the interval from July 3 to November 15, 1999. He began working at
$7.15 per hour and his duties – in June – were performed with respect to
potatoes and cranberries. He stated he had received payment only by cheque and
had recorded his hours of work on a calendar, a copy of which he had provided
to CCRA investigators. According to his own records, he had worked a total of
982 hours. When he received his ROE from Kooner, he attended at Kooner’s house,
requested additional pay and complained that Kooner had not accurately recorded
the hours worked. However, Kooner did not agree to make any revisions.
Sohan Mann stated he had never been able to match up his hours worked with
the pay cheques received from Kooner. His first pay cheque was given to him in
August, 1999 and he estimated he may have held it for two weeks prior to
negotiating it. After receiving a total of 6 cheques from Kooner, Sohan Mann
calculated he was owed the approximate sum of $3400. He worked at Brent Kelly
Farms and at two other places. At the Brent Kelly Farms property, there
were – on occasion – as many as 12 people working inside the buildings and an
even greater number working outside in the fields. He stated he sometimes
worked on Sundays and had performed services pertaining to a variety of
produce, including cranberries, potatoes, onions and wheat. After starting work
– in May – for Kooner, he was then joined by his wife and later his daughter,
Meena Mann so that the three of them eventually worked together.
[14] In
cross-examination, counsel referred Sohan Mann to his ROE ‑ Exhibit R‑8 –
which reported the number of insurable hours was 990 with insurable earnings in
the sum of $7,078.50. Mann stated the commencement date of July 2, 1999 was
incorrect because he had begun working in May - on an irregular basis - and the
hours had been increased in June. He stated he was laid off in December, 1999
and had worked 8 days in a greenhouse for someone whom he assumed was a client
of Kooner since it had been Kooner who called to direct him to that location.
He had never been paid for that work. Throughout his employment with Kooner, he
had recorded his hours of work on a calendar, a copy of which he stated he had
provided to CCRA investigators. Mann identified a Questionnaire – Exhibit R-9 –
he had completed and returned with an attached sheet indicating hours worked.
However, the sheet was not a photocopy of his calendar – which had been lost -
but appeared to be a statement of his hours, prepared by someone. Mann
stated he had been pressured – by Kooner – not to provide details to government
interviewers concerning his employment with him, operating as Arun. Mann
acknowledged receipt of 4 cheques, as photocopied onto a sheet – Exhibit R‑10
- but stated there had also been two more cheques paid to him. As for
attempting to collect additional pay from Kooner, Mann stated he had not been
aware of the Employment Standards Branch, an agency of the provincial
government.
[15] Gurdev Singh
Chahal testified he received a decision from the Minister pertaining to two
separate periods of employment with Kooner. The first was from January 5 to
October 30, 1999 and the Minister decided he had worked 717 insurable
hours with insurable earnings in the sum of $5,126.55. Later, as set forth in
the Reply to Notice of Appeal, the Minister conceded the correct number of
insurable hours was 849.25 and insurable earnings were in the sum of $7,662.41,
as calculated in accordance with section 2 of the Regulations. The
Minister decided he was not in pensionable and/or insurable employment with
Kooner during the period of October 31 to November 15, 1999. Chahal stated he
began working in the first week of January, 1999 – at Brent Kelly Farms – but
did not keep track of his hours. Kooner or a driver picked him up and drove him
to and from work. His pay was almost always late and he would attend at
Kooner’s residence in order to receive a cheque for work done. Although his pay
records indicate he was being paid the sum of $7.25 per hour, Chahal stated he
was receiving the lesser sum of $7.00 and, when he complained to Kooner, was
threatened with dismissal. Concerning the arrears in wages, Kooner assured him
that - at some point - he would be paid in full. When Kooner’s wife handed him
the ROE, he assumed it was correct. In the summer of 1999, he left work for an
extended period, returned on August 16th and then worked until his layoff on
November 15, 1999. Chahal stated he had worked for several farm labour
contractors since arriving in Canada in 1995.
[16] In
cross-examination, Gurdev Singh Chahal identified his ROE – Exhibit R‑11
– indicating his insurable hours were 1,197.50 . He recalled being interviewed
by Harby Rai and Chahan - whom he knew to be employees of CCRA - and advised
them he had worked at Brent Kelly Farms and also at a farm that had some cows.
He stated Kooner had told him to say he had been paid every 15 days and to
advise CCRA officials that he had been paid $7.15 per hour.
Chahal responded to Kooner’s suggestions by stating he was prepared to
tell the truth to the interviewers - which was that his cheques were always
late – but when Kooner threatened to fire him, agreed to follow Kooner’s
advice. He stated there were some days when he worked 12 hours and it was
usual for the work day to begin at 6:00 a.m. and to finish at 8:00 p.m. unless
it was affected by weather conditions. He worked 4 or 5 days a week from
January until May 15, 1999, when he left for England. He returned to Canada on
August 15 and went to work the following day. Chahal identified his application
for EI benefits– Exhibit R-12 – which had been completed by Mrs. Kooner because
he cannot read nor write. He acknowledged receipt of the cheques, as shown in a
bundle of photocopies – Exhibit R-13 – all of which were deposited into his
Canada Trust account at a branch that remained open until 8:00 p.m. The cheque
dated January 15, 1999 – in the sum of $819.00 – was in payment of 117 hours of
work at the rate of $7.00 per hour. The cheque dated March 15, 1999 – in the
sum of $479.74 – was deposited in his account on May 4, 1999. One cheque – dated
March 31, 1999 – in the sum of $204.50 – was deposited on April 15, 1999 and
the other – in the sum of $346.69 – was not negotiated until May 4, 1999.
Cheques were always late and the cheque dated August 31, 1999 was not given to
him until October 18, 1999 when he deposited it to his Canada Trust account.
The cheque dated September 15, 1999 – in the sum of $1,000 – bore the notation
"advance pay" but it was not delivered to him until November 10,
1999. He was aware there was no such policy in place for receiving advance pay
from Kooner and did not know whether any deductions had been taken from that
cheque. Chahal stated his own calculation of insurable hours produced a total
of 1,147 - up to November 15, 1999 - and he believed his pay rate had remained
at $7.00 per hour throughout his employment.
[17] Harby Rai
testified she is a CPP/EI Rulings Officer and has been employed by CCRA for 15
years. In June, 1999, she became a member of the Agricultural Compliance Team
(ACT or Team) which includes members of the provincial Employment Standards
Branch. ACT visited farms and greenhouses, interviewed workers, handed out
pamphlets and engaged in discussions with employers. Under provincial
legislation, the employer is required to maintain a daily log of workers on site.
On August 18, 1999, ACT visited Brent Kelly Farms but none of the appellants in
the within appeals were among the workers at that site outside in the fields or
inside the barn where workers were grading potatoes. Copies of a pamphlet –
Exhibit R-14 - concerning pay and working conditions – written in English and
Punjabi – were provided to workers and they were advised to maintain – and
retain – some personal record to demonstrate the hours worked. When an
individual made a claim for EI benefits, Human Resources Development Canada
(HRDC) would issue a letter advising that a CCRA representative might be
present at any future interview. Rai stated she spoke – in Punjabi – to each of
the appellants in the within appeals and requested records of hours worked.
Meena Mann advised she no longer had such a record available but Joginder Singh
Rai stated he did have a record of hours worked and promised to drop it off at
the CCRA office. Harby Rai stated she never received any such document.
Kooner had provided CCRA with copies of cancelled cheques - paid to workers –
as well as a daily log. Team and HRDC made a joint demand for payroll records
for the period between September 1, 1998 and April 1, 1999. Another audit
pertained to the period between April 17 and September 1, 1999 and another
covered the balance of the year. Harby Rai stated she also examined computer
print-outs and other relevant documents relating to payroll. A bundle of daily
time sheets – Exhibit R-15 – covering the period of January 3 to September 2,
1999 were examined by Rai and she noted the sheets did not comply properly with
provincial labour standards which require an entry to be made indicating the
worker’s name, start and finish times and the location of the work performed. A
bundle of time records ‑ Exhibit R-16 – had been maintained by
Kooner in relation to work done by each of the appellants. A computer print-out
– Exhibit R-17 – had been obtained from Kooner’s accountant and it set out the
rate of pay and the work commencement date of each worker. In the course of her
investigation, Harby Rai stated she interviewed clients of Kooner – operating
as Arun – and obtained copies of Arun invoices to Brent Kelly Farms which
were based on a number of hours worked without identifying the names of the
actual labourers. A bundle of invoices – Exhibit R -18 – sent by Arun to Brent
Kelly Farms - for the months January through April, 1999 - indicated the number
of hours that had been billed each month at a rate of $8.50 per hour. An
additional set of invoices – Exhibit R-19 – pertained to the period from May to
November, 1999. Using the information gathered from various sources, Harby Rai
used her computer and an Excel program to enter data onto a spreadsheet in
order to ascertain if there were discrepancies in recorded hours of work. She
produced an analysis ‑ Exhibit R‑20 – covering the
1999 year as it related to work allegedly done for Brent Kelly Farms and two
other entities known as Eagleview and the Langley Farm. Rai referred to a sheet
accompanying an invoice sent by Arun to Brent Kelly Farms for the month of
January, 1999 – contained in Exhibit R-18 – indicating that 6 persons had
worked a total of 54 hours on January 4, 1999. However, there was no
corresponding time sheet for that day to support the contention that any worker
had provided services at any location whatsoever. In January, 1999, Arun
invoiced Brent Kelly Farms for a total of 562.8 hours labour but only 270 hours
can be discovered from an examination of Kooner’s payroll records and only 120
hours are supported by adding the separate amounts shown in the daily logs
(Exhibit R-15), In February, 1999, Arun invoiced Brent Kelly Farms for a
total of 1,575.3 hours labour but only 221.5 hours are supported by entries in
the daily logs and the number of hours worked – according to the computerized
payroll records – Exhibit R-17 - was 588. In July, 1999, Brent Kelly Farms was
billed – by Arun - for having supplied 2,498.5 hours labour. During that month,
Arun also billed Eagleview for a total of 420 hours for a total labour supply
of 2,918.5 hours. However, the Arun payroll records indicated a total payment –
to workers – based on a total of 3,305.5 hours. In August, 1999 Arun billed out
a total of 2,536 hours but purported to have paid wages to workers based on a
total of 3,689.5 hours. Daily logs or other record of hours were not maintained
in accordance with requirements of provincial employment standards legislation.
In October, 1999, Arun’s only client was Brent Kelley Farms and it was billed for
2,298.5 hours labour. However, the payroll records indicated Kooner’s employees
had worked 2,762 hours during that month. In November, 1999, Brent Kelly Farms
was billed for 560.5 hours labour but 1,335 hours were entered on Arun payroll
records. There was no other labour provided to any other customer that month.
In December, 1999, Brent Kelly Farms was billed for 1,774.5 hours but payroll
records support a total of only 240 hours labour had been provided by the pool
of workers. Returning to an analysis of the month of May, 1999, Harby Rai
referred to invoices by Arun - to Brent Kelly Farms - for 360 hours labour and
53 hours billed to Eagleview for a total of 503 hours. However, no worker
appears on the Arun payroll records for that month. In June, 1999, the total
hours invoiced to Arun clients was 1,212 but there is no record of any worker
having been on the payroll and no daily logs were produced. In conversations
with Brent Kelly, Rai stated she was informed that Nick Hothi – an
employee of Brent Kelly Farms – kept track of the workers supplied each day by
Arun and recorded the number of hours worked. Later, those records were used to
verify the accuracy of an invoice submitted by Arun and - if correct - payment
would be issued based on that amount. Harby Rai stated she had requested
documents – from Mrs. Kooner - for the months of May and June, 1999, but none
were forthcoming. Rai prepared a spreadsheet – Exhibit R-21 – based on the
appellants’ hours as recorded on the sheets - Exhibit R-16 - which had been
received from Kooner. The entries did not match those contained in the computer
print-out – Exhibit R-17 - obtained from Kooner’s accountant. In August, 1999,
Gurdev Singh Chahal, Meena Mann and certain other named workers were listed on
the print-out as having been employed but none of them is the subject of any
entry in the daily logs. In respect of the appellant, Meena Mann, the ROE was
prepared by Kooner’s accountant using the number of insurable hours – but a
month by month examination revealed the daily log had recorded her hours as 227
even though the print-out was based on 235 hours. For the month of
September, 1999, the Arun payroll records were based on a total of 3,862 hours
but the computer print-out indicates a total of 4,209 hours was the
purported basis of payments to employees. In that sense, it would appear that
Kooner paid for 347 hours of work that had not been done or – at least –
had not been recorded. However, for the same month - as disclosed by Exhibit
R-20 – Arun billed out 4,437.5 hours of labour to Brent Kelly Farms and
Eagleview. For the month of October, 1999, Harby Rai’s analysis revealed
2,762 hours of work had been done ‑ if one were to accept the
accuracy of the daily time sheets – but the computer print-out stated the total
was 2700 hours while 2,298.5 hours was the number used as the basis for
invoicing Arun clients. In November, 1999, the daily time sheets totalled 1,335
hours while the computer print-outs were based on 1,340 hours. However, the
only Arun client that month was Brent Kelly Farms and it was billed for only
560.5 hours labour. In Rai’s opinion, it is not an onerous task for an employer
to maintain adequate – and accurate – records. In the course of her analysis,
she considered the records of Brent Kelly Farms and/or Eagleview to be the most
reliable because Nick Hothi – at Brent Kelly Farms - had verified the hours
worked and the accuracy of the invoices submitted by Arun and it was not
reasonable for those businesses to have paid Arun for workers who had never
attended at the farms in order to supply labour. Harby Rai stated she
interviewed all the appellants. Joginder Singh Rai advised her that he had
started working for Kooner - in January, 1999 - not in July - as shown on the
ROE. However, he had received a cheque in the sum of $1260 - dated March 29,
1999 - from Kooner which indicated – to Harby Rai – that he had been working
earlier, as claimed. Joginder Singh Rai told her that he would drop off his
time records but failed to do so. When referred to Exhibit R-2 – containing
sheets on which hours had been recorded – Harby Rai stated she had not seen
them until produced in Court during the hearing of the within appeals nor had
she ever seen – earlier - the time sheets contained in Exhibit A-1. According to
the entry in Exhibit A-1, Joginder Singh Rai worked 10 hours on July 1, 1999
but the payroll records – Exhibit R- 16 - indicate he did not begin work until
July 3 when he worked for 8 hours. On July 8, 1999, he recorded that he worked
10.5 hours but the Kooner records do not indicate any hours worked. Joginder
Singh Rai had reported that Kooner paid him a total of $1,800 in cash but
Kooner denied – in conversations with Harby Rai - ever having paid any cash to
any worker and there were no records to support that any such cash payment had
been made. No records were ever forthcoming - from Kooner – to indicate the
method by which Rai’s pay cheques had been calculated. Harby Rai stated her
examination of relevant records pertaining to the appellant, Gurdev Sing
Chahal, disclosed the ROE used January 5, 1999 as his starting date but
the record of daily hours – Exhibit R-21 – indicated he did not begin work
until January 7 when he apparently put in an 11‑hour day. Chahal did not
maintain his own record of hours worked but advised CCRA that he had departed
Canada on May 15, 1999 and returned on August 14th, 1999. However, Harby Rai
pointed out that – after April, 1999 - Chahal does not appear on Kooner’s
payroll records for the following month of May and there are no daily hours
recorded for Chahal for any period after his return to work in August.
According to the payroll print‑out, Chahal worked 220 hours in August but
he only returned to work on the 16th which would make it improbable that he had
worked so many hours in the 15 days remaining in the month. According to
Chahal’s ROE, he earned the sum of $8,204.00 but the total amount of pay
cheques issued to him – by Kooner – is only $6,285.00. Since the position of
both Chahal and Kooner was that no cash was ever paid for services performed,
Harby Rai was unable to reconcile this difference to her satisfaction. Chahal
told Rai that he would wait a month or more prior to depositing his pay cheques
and did not mention – during the interview – that Kooner had been late in
paying wages. Under the circumstances, having regard to the unreliability of
time records, Harby Rai stated an appropriate method of calculating Chahal’s
insurable hours would be to divide the total amount paid to him by the amount
of the minimum wage. Following October 30, 1999, Chahal does not appear on any
of Kooner’s records. The computer-produced sheets ‑ Exhibit R-17 –
do not indicate any payment to Chahal after that date but does show the total
of wages paid to Chahal was in the sum of $7,596.88. That amount - divided by
the minimum wage of $7.15 applicable for that period – produces 1,062.5
insurable hours of employment. This number is at odds with the one used in the
ROE which was based on total earnings of $8,204.50 and 1,147.5 insurable hours.
Harby Rai had also interviewed the appellants, Meena Mann, her father ‑ Sohan
Mann – and her mother – Jasbir Kaur Mann - concerning their employment with
Kooner. Jasbir Kaur Mann had advised that her starting date was July 2, 1999
and that her husband and daughter had begun working at the same time. The
Minister agreed to a consent judgment being issued with respect to
Jasbir Kaur Mann pertaining to the period of July 2 to November 15,
1999 based on 975 insurable hours with total earnings in the sum of $6,971.25.
Rai stated Meena Mann had never produced any time records but had produced
the list of hours as attached to Exhibit R-7. Meena Mann was not at the Brent
Kelly Farms property on August 18, 1999 when ACT had visited the site
pertaining to its mandate to monitor compliance with employment and labour
standards in the agricultural industry. However, Mann’s own records indicate
she was at work that day, although she later agreed she might have been
visiting her doctor. Rai’s examination of the various documents indicated Sohan
Mann did not appear on Arun payroll records until July 3, 1999 – the starting
date used in his ROE – but he stated he had started working much earlier. He
told Rai he maintained a record only for the purpose of adding the total amount
during a specific period, after which it would have been discarded. The hours -
as recorded on sheets attached to Exhibit R-9 - were not prepared by him or by
a specific person known to him and he told Rai he had not seen that document.
Rai stated the initial decision by the Minister was based on subsection 10(5)
of the Regulations but it was later recognized that the inherent
limitation restricting the worker to a 35-hour week was not appropriate within
the context of the agricultural industry. Team had been formed in order to
educate farm workers of their rights as instances had been discovered where
people worked hard for months, received cheques - for which they obtained cash
– only to hand the money back to the payor. In the past, Team had encountered
workers who had worked for an entire season, receiving only an ROE as payment
for their services in order to qualify later for EI benefits. During interviews
with workers, it was common for people to report working only 8 hours per day
but Rai considered this response was routinely offered in order to avoid
raising any issue of overtime pay or to cause further inquiry concerning a
potential lack of compliance - by the employer - with labour standards under
provincial law. Team attempted to verify the location of the third work site in
Langley because an examination of the Arun records revealed a total of 10 hours
had been spent there by the workers.
[18] In
cross-examination by Joginder Singh Rai, Harby Rai stated she had not been in a
position to become aware of whether he had reported income on his regular EI
report cards for the months of January to May, 1999, inclusive.
[19] In
cross-examination by Sohan Mann, Harby Rai stated she had undertaken steps to
confirm the existence of the farm in Langley but no records were forthcoming
from Kooner in that regard. She stated she did not recall Mann having told her
– during the interview – that Kooner owed him money.
[20] In
cross-examination by Gurdev Singh Chahal, Harby Rai agreed he had produced a
cancelled cheque in the sum of $498.80 – dated November 15, 1999 – issued to
him by Kooner. The cheque had been negotiated on January 10, 2000.
[21] Joginder Singh
Rai submitted that he had been working for Kooner, as related in the course of
his testimony, and that he was entitled to recognition for the appropriate
amount of insurable hours and insurable earnings notwithstanding the lack of
accuracy in the records Kooner was supposed to maintain.
[22] The remainder of
the appellants declined to offer any submissions.
[23] Counsel for the
respondent submitted the Minister was relying on section 9.1 of the Regulations
and had conceded section 10 did not apply to the circumstances relevant to
the within appeals. Counsel submitted section 9.1 has a double threshold in
that the appellants – first - must have performed the work and - second – must
have been paid for that work unless the arrears in wages was covered by
subsection 2.2 of the Insurable Earnings and Collection of Premiums
Regulations which required a worker to have made a complaint before an
appropriate tribunal in respect of such unpaid wages. Counsel pointed out no
such complaints had been made to the provincial Employment Standards Branch by
any of the appellants. As a result, the key finding of insurable hours and
total earnings must relate to hours actually worked - and paid for - by the
employer. Pursuant to the national scheme for employment insurance, the number
of insurable hours qualifies someone for benefits, the amount of which is based
on the insurable earnings. Counsel submitted it was apparent Kooner – operating
as Arun – had not maintained proper records and the multiple documents produced
did not reconcile with each other or to the various ROEs issued to the
appellants. In the end, the only reliable record of payments is disclosed by
the cancelled cheques because there was no proof that cash had ever been paid
to Sohan Mann or any other appellant in these appeals. As a result, counsel
submitted the evidence supported the following findings with respect to
insurable hours and total earnings:
Joginder
Singh Rai – 838 hours with earnings in the sum of $5,989.09 between January 5
and November 12, 1999.
Meena
Mann: 663 hours with earnings in the sum of $5,291.51.
Sohan
Mann: 461 hours with earnings in the sum of $3,295.05.
Gurdev
Singh Chahal: 1065 hours with earnings in the sum of $7,662.41.
[24] Counsel submitted
there was no evidence supporting Chahal’s claim with respect to the so-called
second period of employment with Kooner from October 30 to November 15, 1999.
Counsel also submitted that the various ROE’s were incorrect and the only
reasonable method of calculating the insurable hours and earnings was to refer
to the cancelled cheques as the only proof of payment and then to divide that
amount – in each case – by the applicable minimum wage of $7.15 per hour.
Unpaid wages – even if owing – could not be used for that calculation unless
the exemption in section 9.1 of the Regulations had been met. Counsel
submitted the appellants were complicit in the arrangement with Kooner and
their only concern was in obtaining EI benefits for which they were quite
prepared to be less than truthful during interviews with CCRA officials and as
revealed by their obvious lack of desire to maintain personal records of hours
worked which – if available - could have been used to support their claims.
Regulations
9.1 and 9.2 are as follows:
9.1 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.
9.2 Subject to section 10, where a person's earnings
or a portion of a person's earnings for a period of insurable employment
remains unpaid for the reasons described in subsection 2(2) of the Insurable
Earnings and Collection of Premiums Regulations, the person is deemed to
have worked in insurable employment for the number of hours that the person
actually worked in the period, whether or not the person was remunerated.
[25] There have been
numerous appeals concerning the insurability of farm and orchard workers and
often there is a common thread attributable to language barriers, a lack of
awareness by workers of their rights and the conduct of employers who
deliberately choose not to abide by labour standards including proper
documentation of hours worked, rates of applicable pay, overtime, and the
requirement to pay wages on a regular basis for work performed during a
preceding period. Often – as in the within appeals – some witnesses require the
services of an interpreter – and it is difficult to explain the process that
must be followed in order for an appellant to establish – on a balance of
probabilities – that there was insurable and/or pensionable employment and that
the workers earned the amount set forth in the relevant ROE in return for
having performed a certain number of hours of work. In the within appeals, I am
not satisfied with the accuracy of any of the so-called time records maintained
by any of the appellants who purported to do so. In the case of Sohan Mann, he
does not know who prepared the sheet containing a list of hours worked. Meena
Mann stated she kept a record of hours on a calendar which is no longer
available. Joginder Singh Rai testified he used a calendar to record hours and
then transcribed those entries onto some sheets which he alleged had been
provided to the local CCRA office investigating his case. The evidence adduced
on behalf of the respondent did not support that claim. It is obvious – as
demonstrated by the evidence of Harby Rai - the CCRA official – that each time
one attempts to find corroboration on matters such as hours worked, start and
finish dates of employment, location of work sites, rate of pay for particular
workers, method of payment and/or amounts of total payment for work done, there
is rarely any independent source to verify any specific data. The daily logs
maintained by Kooner – the employer – are inadequate and are at odds with other
records including his own computerized print-outs as prepared by his
accountant. Joginder Singh Rai testified he had received nearly $2,300 in cash
but Kooner had denied – in speaking to Harby Rai – that he ever paid any worker
in cash. No other appellant in the within appeals claimed to have received any
cash payment. Meena Mann had medical appointments on the days set forth on
Schedule B – attached to the Reply – but her hours of work - as submitted -
included 67 hours for those missed days. In her testimony, she stated she had
never worked on any day upon which she had a medical appointment. Joginder
Singh Rai’s evidence was that he started working for Kooner in January and the
hours per week had increased until they were nearly full time in May and June.
However, the starting date shown on his ROE is July 2, 1999. He also testified
that he had notified HRDC of those hours worked - beginning early in the year -
by providing details on his regular report cards which he had to complete and
return in order to obtain ongoing EI benefits. The respondent did not
offer any evidence to counter this assertion.
[26] The Honourable
Judge Miller, Tax Court of Canada, encountered similar difficulties hearing the
case of Khunkhun v. Canada (Minister of National Revenue – M.N.R.),
[2002] T.C.J. No. 483. The appeal involved whether the appellant had worked in
insurable employment - in an orchard – during the summer of 2000, and, if so,
what was the correct number of insurable hours. In the Khunkhun matter,
the Agricultural Compliance Team had visited the orchard on a day when the
appellant was not present. Also, the appellant had not maintained a record of
her hours and her husband – whom it had been suggested had kept track of her
hours – was not produced as a witness. Cheques had been made out – by the payor
– to the worker on a more or less regular basis but the appellant had actually
received payment all at once at the end of the growing season in October.
Commencing at paragraph 12 of his judgment, Judge Miller commented as follows:
12. Was Ms. Khunkhun employed as an orchard
worker on Mr. Nagra's farm for 961.5 hours in 2000? The Respondent's
position is no, she was not. According to the Respondent, the ROW for 2000 and
four October cheques were nothing more than a sham to give the appearance that
the Appellant worked. The ROW was inconsistent with the evidence Ms. Khunkhun
was paid partially by piece work. Ms. Khunkhun was not being truthful in
suggesting she was present at the farm team visits. The cheques were made out
at the same time. There is no evidence that two of them were ever deposited.
Ms. Khunkhun could not verify how many hours she worked, nor how many days she
missed. These are all factors that work against her position of 961.5 hours of
insurable employment.
13. Are there factors that support her position?
Her somewhat evasive answers about time actually worked gave little support to
the figure of 961.5 hours; however, they still suggested to me that she has
worked as an orchard worker. The pay stubs for 2001 provided some evidence of
that. They also support the breakdown between piece work and hourly wages,
albeit for the 2001 year and not the 2000 year. Another factor in support of
Ms. Khunkhun's position is that Canada Trust's confirmation of the two deposits
clearly represented two of the October 2000 cheques. I am satisfied that
workers might not be paid until the end of the season. This does appear to be
common practice. Finally, Mr. and Mrs. Bains supported Ms. Khunkhun's
position as an orchard worker in 2000, but provided no evidence as to her
hours.
14. What I should take from Mr. Nagra's presence
but failure to testify? Is there a negative inference contrary to
Ms. Khunkhun's position to be drawn? This was not suggested by the
Respondent. Was he there in some way to intimidate? Again, I cannot say, but I
do find it curious. Presumably, he did not want to give evidence and certainly
nobody wanted to force him to.
15. My overall impression of Ms. Khunkhun and
Mr. and Mrs. Blains was that they exhibited a nervous, cautious almost
fearful demeanour. This leads me to the conclusion that I have not heard the
whole story of Mr. Nagra and his workers. I believe there are likely some
liberties being taken with the truth of Ms. Khunkhun's employment. There
is simply more going on then I can fully ascertain. I do not, however, believe
that the whole thing is a sham as the Respondent would have me believe. Yes,
there were inconsistencies; yes, testimony was at time vague; and yes, I
believe Ms. Khunkhun lied about being present at the farm team visits. However,
testimony was also supportive of Ms. Khunkhun's working and receiving some
payment for that work. The truth I suggest lies somewhere between the sham
suggested by the Respondent and the 961.5 hours suggested by the Appellant.
16. Having reached that conclusion, I am mindful
of Judge Margeson's comments in Narang v. M.N.R. ([1997] T.C.J. No.
99) a case similar to this, where he stated:
Certainly if the Court should find that there was a
"sham transaction" then there was no insurable employment, but the
Respondent has no burden to establish that there was a "sham
transaction".
The burden is on the Appellant and the Intervenors
to establish on a balance of probabilities that there was work performed under
a contract of service, that the workers worked the periods of time set out in
the ROEs and that they were paid the amounts referred to therein.
I find that on the balance of probabilities, Ms.
Khunkhun performed work under a contract of service for some period during
2000. However, I am not convinced that she worked the period of time set out in
the ROE, nor that she was paid the full amount referred to therein. I do find
that she received the payments of two of the October 2000 cheques totalling
$3,383.79. Based on the Respondent's assumptions of Mr. Nagra's deductions on
Ms. Khunkhun's T$ slip, this would represent a gross pay of approximately
$4,380. At an hourly rate of $10 this suggests 438 hours worked. While I
recognize that this is a rough and ready approach to the problem, I am prepared
to allow the appeal to this extent for the following reasons.
17. I am not satisfied that it is the worker who
is wholly at fault here. As I have indicated, I suspect something is indeed
rotten in the orchard business, though I am not sure exactly what, but to
penalize the worker alone, the lowest spectrum of the fruit industry, does not
seem just. My impression is that these seasonal workers, many who do not
understand English, can be subjected to questionable labour tactics.
Presumably, this is why these farm teams in British Columbia go to orchards, to
in part educate the workers about their rights and responsibilities. The worker
is wrg to fall into any trap for purported personal gain which involves
deceiving the authorities. That is not tolerable. Neither is it acceptable that
the most vulnerable bear an uneven burden and responsibility when deceit is
uncovered. I believe Ms. Khunkhun worked for Mr. Nagra in 2000, but the
hours reported by Mr. Nagra on the ROW are inaccurate. I am not prepared
to reduce them to zero with the consequential adverse impact on
Ms. Khunkhun. Neither am I prepared to allow Ms. Khunkhun's claim of
having worked 9651.5 hours based on the evidence she presented. I allow the
appeal and refer the matter back to the Minister on the basis that Ms. Khunkhun
worked 438 hours of insurable employment in 2000.
[27] Counsel for the
respondent – in the course of his submissions – outlined the positions taken by
the Minister with respect to each appellant at various times - as reflected in
the relevant Reply or a subsequent concession – and as ultimately supported by
the evidence adduced in the within appeals.
[28] With respect to
the appeal of Joginder Singh Rai, I cannot accept that there was additional
remuneration paid in the form of cash since there is absolutely no other proof
capable of supporting that proposition and the overall evidence is not
consistent with that event taking place. In order for Rai’s insurable hours to
be increased, it would be necessary to accept that payment - for a considerable
number of hours - had been made in cash. However, in the face of conflicting
numbers throughout the various documents and the lack of independent proof on
certain relevant matters integral to his appeal, the only rational method of
dealing with his situation is to calculate the total amount paid to him - by
cheques - and to divide that sum by the hourly wage rate in order to arrive at
the number of hours worked. In the relevant Reply, the Minister conceded the
number of insurable hours was 838 and that Rai’s insurable earnings were in the
sum of $5,989.09. After reviewing the evidence, I find the appellant – Rai –
was unable to demonstrate this conclusion was incorrect.
[29] With regard to
Meena Mann, the Minister accepted that she had earned the sum of $5,291.51
which – at a minimum wage rate of $7.15 per hour – resulted in 730 insurable
hours. However, there were 67 hours claimed by her during days on which she
testified she was obtaining medical advice or treatment and did not work.
Accordingly, the proper number of insurable hours must take into account that
amount of missing work time so as to result in a final number of 663.
[30] The appellant –
Sohan Mann – testified he began working for Kooner in May, 1999 and had worked
a total of 982 hours. His ROE indicated he started on July 3, 1999 and had
earned a total of $7,078.50 during the course of 990 hours employment. However,
the total sum of the cancelled cheques was only $3,295.25 which – when divided
by the minimum wage of $7.15 – results in 461 hours. Sohan Mann testified that
he had requested additional payment from Kooner and estimated he had been owed
the approximate sum of $3,400 as of his layoff date on November 15, 1999. He
had not made any complaint to any labour tribunal having competent jurisdiction
and any arrears – even if owed – cannot be taken into account when calculating
insurable earnings in accordance with the Regulations.
[31] The appellant –
Gurdev Singh Chahal – claimed he had worked for Kooner for the period of
October 31 to November 15, 1999, following the first period of employment which
ended on October 30, 1999. With respect to the period following October 31,
1999, there is no evidence Chahal worked for Kooner except for his testimony
that he had received a telephone call from Kooner to the effect there was work
to be done in a greenhouse at Brent Kelly Farms. No other records or other
proof supported his claim but he did receive a cheque dated November 15, 1999 –
in the sum of $498.80 – which he deposited on January 10, 2000, shortly after
Kooner issued it to him. Chahal testified Kooner was always late with payment
for work done but had offered the assurance that – sooner or later – he would
pay up all the wage arrears. The Minister regarded said cheque as being
attributable to the period of employment ending on October 30, 1999. Chahal
maintained he was being paid only $7.00 per hour instead of the minimum wage of
$7.15. I find the appellant – Chahal – has failed to adduce sufficient reliable
evidence to support any finding of insurable employment during the so-called
second period between October 31 and November 15, 1999. As a result, the
decision of the Minister finding there was no insurable and/or pensionable
employment during this time frame is correct and must be confirmed. As for the
first period, Chahal was paid – by cheques – but the copies produced in
evidence totalled the sum of $6,285.34. The ROE had stated earnings were
$8,204.63 with 1,147.5 insurable hours, a calculation based on a wage of $7.15
per hour. However, the computerized print-out of Arun payroll records – Exhibit
R-17 - indicate Chahal had been paid a total amount of $7,596.88 for the period
ending October 31, 1999. Chahal testified he thought he had misplaced one or
two cancelled cheques and suspected the total amount of the cheques -
reproduced in Exhibit R-13 - should have been greater. Having regard to the
overall unreliability of various documents and the lack of additional proof
concerning integral matters at issue, the only reasonable method for
calculating insurable hours is to divide the proven earnings – in the sum of
$7,596.88 – by the minimum wage of $7.15 - resulting in 1,062 hours. It is
unfortunate that – during the course of his employment - Chahal was not able to
obtain satisfactory explanations from Kooner concerning the variation in
amounts of pay and/or hours and the numbers later used in the ROE but he is
unable to read and write in English and Mrs. Kooner had completed his application
form for EI benefits. He was unable to substantiate that he had worked a total
of 1,147.50 hours - as stated in ROE - or any number of hours greater than that
resulting from the exercise in the method referred to above.
[32] In conclusion,
the following appeals are subject to the stated result:
Joginder Singh Rai:
The appeal is allowed and the decision of the Minister
is varied to find the appellant was employed in insurable employment with
Jaswinder Kooner - operating as Arun Contractors – for the period from January
3 to November 15, 1999 and his total insurable hours were 838 with insurable
earnings in the sum of $5,989.09.
Meena Mann:
The appeal is allowed and the decision of the Minister
is varied to find the appellant was employed in insurable employment with
Jaswinder Kooner – operating as Arun Contractors – for the period of August 5
to November 15, 1999 and her total insurable hours were 663 with insurable
earnings in the sum of $5,291.51.
Sohan Mann:
The appeal is dismissed and the decision of the
Minister is confirmed.
Gurdev Singh Chahal:
The appeal – 2002-1317(EI) is allowed and the decision
of the Minister is varied to find the appellant was employed in insurable
employment with Jaswinder Kooner – operating as Arun Contractors – during
the period of January 5 to October 30, 1999 and his insurable hours were 1,062
with insurable earnings in the sum of $7,596.88. The part of the decision
pertaining to the period of October 31 to November 15, 1999, wherein the
Minister found the appellant was not in insurable employment with Kooner, is
hereby confirmed.
[33] The appeal –
2002-1318(CPP) – is dismissed and the decision of the Minister is confirmed.
Signed at Sidney, British Columbia, this
21st day of February 2003.
D.J.T.C.C.
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