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Citation: 2003TCC488
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Date: 20030714
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Docket: 2003-359(EI)
2003-360(CPP)
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BETWEEN:
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MOHINDER 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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REASONS FOR JUDGMENT
Little, J.
A. FACTS
[1] The
Appellant claims to have worked for Brar Blueberry Farms ("Brar")
during the period from July 22, 2001 to October 13, 2001 (the
"Period").
[2] During
the Period Brar owned approximately nine acres of land located at
34643 Townshipline Road, Abbotsford, B.C. Approximately seven of the nine
acres were planted in blueberry bushes.
[3] The
Appellant claims that during the Period she worked for Brar. She said that she
picked blueberries, weeded, and placed sawdust around the blueberry bushes.
[4] Counsel
for the Respondent filed a Form referred to as Employee Earnings (Exhibit R-5).
The Form states that the Appellant worked the following hours for Brar:
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Hours
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July 22 – 31
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73
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August 1 – 31
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309
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September 1 –
30
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312
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October 1 – 13
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64
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758
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(Note – this Form
indicates that the Appellant worked for Brar for 94 days straight, from
July 22, 2001 to October 13, 2001, without any time off work. The lowest number
of hours recorded was six hours per day. The highest number of hours recorded
per day was 12 hours per day).
[5] Brar
issued a Record of Employment showing that the Appellant worked 805 hours
during the Period. The explanations for the difference between 758 hours
and 805 hours was the method (admitted by counsel for the Appellant to be
incorrect) by which Brar calculated overtime.
[6] On
the 18th day of October 2001 the Appellant signed a Record of Employment
showing that she worked a total of 805 hours during the Period.
[7] The
Appellant maintains that she is entitled to receive benefits during the Period
under the Employment Insurance Act (the "E.I. Act") and
pensionable employment during the Period under the Canada Pension Plan
(the "Plan").
[8] The
Minister denied the claim made by the Appellant under the E.I. Act on
the following basis (paragraphs 6, 7 and 8 from the Reply to the Notice of
Appeal):
6. She relies on
paragraph 5(1)(a) and subsection 2(1) and section 91 of the EI Act, as
amended.
7. She submits that
she correctly determined that the Appellant was not employed by Brar in
insurable employment during the Period as the Appellant was not employed under
a contract of service within the meaning of paragraph 5(1)(a) of the EI Act.
8. She submits that
the ROE and the cheque issued by Brar to the Appellant were shams designed to
give the appearance that the Appellant worked and had sufficient hours of insurable
employment to entitle her to collect employment insurance benefits.
[9] The
Minister denied the claim made by the Appellant under the Plan on the
following basis (paragraph 7 of the Reply to the Notice of Appeal):
7. She respectfully
submits that she correctly determined that the Appellant was not employed by
Brar in pensionable employment during the Period as the Appellant was not
employed under a contract of service within the meaning of paragraph 6(1)(a) of
the Plan.
B. TAX
ISSUES
[10] (a) Is the Appellant entitled to receive benefits under the E.I.
Act?
(b) Was the Appellant
engaged in pensionable employment during the Period within the meaning of
paragraph 6(1)(a) of the Plan?
C. ANALYSIS
[11] Counsel for the Respondent called Harby Rai ("Ms. Rai"), an
official of the Canada Customs and Revenue Agency ("CCRA") as a
witness.
[12] Ms. Rai testified that she had interviewed Mr. Jarnail Singh Brar (the
owner of Brar Blueberry Farms) and she had interviewed the Appellant. Ms. Rai
filed a Report of the discussions during the interviews (Exhibit R-7).
[13] Ms. Rai noted that there were a number of contradictions between the
answers received from Mr. Brar and the answers received from the Appellant. A
careful analysis of Ms. Rai's Report shows the following contradictions in the
answers provided.
[14] The following questions were asked by Ms. Rai
of Mr. Brar and the Appellant:
Question by Ms. Rai:
Who picked Mohinder Kaur Virk
up each day and dropped Mohinder Kaur Virk off each day?
Answer by Mr. Brar:
Her family members mostly
picked her up and dropped her off. At times he might give her a ride if she
didn't have a ride. (Page 4)
Answer by Appellant:
Jarnail picked her up everyday
and dropped her off everyday, sometimes in the van, sometimes in the car. He
also picked up two other workers when he picked her up. (Page 3)
Question:
Did the farm labour contractor
workers do the weeding with Mohinder Kaur Virk?
Answer by Mr. Brar:
No, farm contractor only picked
berries. They did not do any other jobs. (Page 6)
Answer by Appellant:
Yes the farm labour contractor
workers also did the weeding. Page 4)
Further answer by Appellant.
Workers doing the weeding with her. (Page 4)
Question by Ms. Rai:
Did anybody help Mohinder Kaur Virk
to put the sawdust around the berry bushes?
Answer by Mr. Brar:
She did it herself. She would
fill the wheelbarrow herself and take it to the plants. Sometimes the children
helped her also. The sawdust was not too far from the blueberry plants. He,
himself did not help her with the sawdust. (Page 6)
Answer by the Appellant:
Jarnail himself helped her put
the sawdust around the bushes. Jarnail would load the wheelbarrow with sawdust,
then she would fill her bucket with sawdust from the wheelbarrow and put it
around the bushes. (Page 5)
Question – Was Mohinder
Kaur Virk paid weekly, bi-weekly or monthly? How often was Mohinder Kaur Virk
paid in 2001?
Answer by Jarnail:
He thinks that the Appellant
was paid by one cheque at the end of the season. (Page 12)
Answer by the Appellant:
I was paid by cheque every two
weeks and then one cheque paid at the end for her balance. (Page 9)
[15] The Report contained a number of additional contradictions in the
answers made by Mr. Brar and the answers made by the Appellant.
[16] The burden of proof is on the Appellant to establish on a balance of
probabilities that there was work performed by the Appellant under a contract
of service, that the Appellant worked the hours set out in Exhibit R-5 and that
the Appellant was paid the amount shown on the Record of Employment
(Exhibit R‑6).
[17] In analysing the facts before me and particularly the contradictions
referred to above I have concluded that the Appellant has not satisfied the
onus of establishing that the Minister was wrong in denying her to claim
benefits during the Period under the Employment Insurance Act.
[18] I have also concluded that the Appellant has not satisfied the onus of
establishing that the Minister was wrong in denying her claim to pensionable
employment during the Period under the Plan.
[19] The appeals are dismissed, without costs, and the Minister's
determination is confirmed.
Signed at
Vancouver, British Columbia, this 14th day of July 2003.
Little,
J.
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