REASONS
FOR JUDGMENT
Favreau J.
[1]
Mr. Layne O. Godin, on his own behalf and on
behalf of Godin’s Sea Products, and his workers are appealing the Minister of
National Revenue’s 41 rulings dated March 28, 2011 in which the following
was determined:
(a) 21 of the workers were not engaged in insurable employment with
the Appellant within the meaning of paragraph 5(1)(a) of the Employment
Insurance Act (the “Act”) during
their respective periods of employment;
(b) three of the
workers were not fishers pursuant to sections 1 and 2 of the Employment
Insurance Fishing Regulations (the “Fishing Regs”); and
(c) 17 of the workers were engaged in insurable employment with the Appellant
but their insurable hours and insurable earnings for their respective periods
of employment were re-determined pursuant to section 9.1 of the Employment
Insurance Regulations (the “EIR”) and
subsection 2(1) of the Insurable Earnings and Collection of Premiums
Regulations (the “IECPR”)
[2]
As set out in paragraph 5 of the Reply to the
Notice of Appeal, Mr. Layne O. Godin was advised by ministerial notification
dated March 22, 2013, as follows:
(a) The 20 workers listed in the attached Schedule “A” were not engaged in insurable employment with the Appellant within
the meaning of paragraph 5(1)(a) of the Act since the requirements of a
contract of service were not met during their respective periods of employment;
(b) In the alternative, that if the 20 workers listed in Schedule “A” were engaged pursuant to a contract of service
with the Appellant within the meaning of paragraph 5(1)(a) of the Act,
their employment was excluded employment pursuant to paragraph 5(2)(i)
of the Act;
(c) 14 workers were engaged in insurable employment with the Appellant
within the meaning of paragraph 5(1)(a) of the Act and the
Respondent determined their insurable hours and earnings pursuant to section
9.1 or subsection 10(3) of the EIR and subsection 2(1) of the IECPR as set
out in the attached Schedule “B”;
(d) With respect to the workers listed in
the attached Schedule “C” the respondent determined the following:
(1) Rachel Dalley was not a Fisher within the meaning of section 1
of the Fishing Regs during the period from September 14, 2009 to October 3,
2009 and she was therefore not included as an insured person pursuant to
section 2 of the Fishing Regs;
(2) Nicholas Esliger was engaged in insurable employment with the Appellant
within the meaning of paragraph 5(1)(a) of the Act during
the period from Apr [sic] 22, 2007 to July 14, 2007 and the Respondent
determined his insurable hours and earnings pursuant to subsection 10(3)
of the EIR and subsection 2(1) of the IECPR as set out in Schedule “C”;
(3) Futhermore, Nicholas Esliger was a Fisher within the meaning of
section 1 of the Fishing Regs during the periods from September 22, 2008 to
October 3, 2008 and from May 11, 2009 to May 22, 2009 and he was therefore
included as an insured person pursuant to section 2 of the Fishing Regs and
this decision is not at issue in this appeal;
(4) Joshua Godin was not a Fisher within the meaning of section 1 of
the Fishing Regs during the period from May 13, 2007 to July 7, 2007 and he was
therefore not included as an insured person pursuant to section 2 of the
Fishing Regs;
(5) Rocky Hickey was
employed with the Appellant pursuant to a contract of service within the
meaning of paragraph 5(1)(a) of the Act for the periods from
August 5, 2007 to September 29, 2007 and from August 4, 2008 to October 4, 2008
but his employment for these periods was excluded employment since he and the Appellant
were not dealing with each other at arm’s length within the meaning of
paragraph 5(2)(i) of the Act;
(6) Furthermore, Rocky
Hickey was not engaged in insurable employment with the Appellant within the
meaning of paragraph 5(1)(a) of the Act during the period
from August 2, 2009 to October 3, 2009 since the requirements of a contract of
service were not met;
(7) Patrick Levesque
was engaged in insurable employment with the Appellant within the meaning of
paragraph 5(1)(a) of the Act during the period from April
26, 2009 to July 4, 2009 and the Respondent determined his insurable hours and
earnings pursuant to subsection 10(3) of the EIR and subsection 2(1) of
the IECPR as set out in Schedule “C”;
(8) Furthermore,
Patrick Levesque was not engaged in insurable employment with the Appellant
within the meaning of paragraph 5(1)(a) of the Act during
the period from August 2, 2009 to August 15, 2009 since the requirements of a
contract of service were not met;
(9) Rudi Mallaley was
engaged in insurable employment with the Appellant within the meaning of
paragraph 5(1)(a) of the Act for the period from April 26,
2009 to July 4, 2009 since the requirements of a contract of service were
met and the Respondent determined her insurable hours and earnings pursuant to
subsection 10(3) of the EIR and subsection 2(1) of the IECPR as set
out in Schedule “C”;
(10) Furthermore, Rudi
Mallaley was not engaged in insurable employment with the Appellant during the
period from July 5, 2009 to July 18, 2009 since the requirements of a contract
of service within the meaning of paragraph 5(1)(a) of the Act
were not met; and
(e) Margaret Ann
Labillois was a Fisher within the meaning of section 1 of the Fishing Regs; she
was included as an insured person pursuant to section 2 of the Fishing Regs and
this decision is not at issue in this appeal.
[3]
Mr. Layne O. Godin
appealed to this Court with respect to 38 of the workers; the two workers who
are not at issue in this appeal are Margaret Ann Labillois and Cody Bernard.
[4]
In making his decisions, the Minister relied on
the following assumptions of fact, as set out in paragraph 7 of the Reply to
the Notice of Appeal:
(a) The Appellant is a sole proprietorship operating as Godin’s
Seas Products;
(b) The Appellant’s business is run from his
home located in Lorne, Northern New Brunswick;
(c) The nature of the Appellant’s business
operations includes fishing and forestry;
(d) The Appellant paid his workers in cash;
The forestry operations:
(e) The Department of Natural Resources requires
that cutting permits be obtained when cutting wood on private land;
(f) The Department of Natural Resources in New
Brunswick did not issue any cutting permits to the Appellant for any of the
alleged periods of employment of Travis Carrier, Kelly Godin, Clayton Hickey
and Gail Lavigne (the “Forestry workers”);
(g) Eel River Band First Nation did not hire the
Appellant’s services to cut or haul wood or do any forestry work on their land
during 2007, 2008 and 2009;
(h) Debbie Loubert did not hire the Appellant’s
services to cut wood on her personal property during 2007, 2008 and 2009;
(i) The Appellant did not sell wood to sawmills
during 2007, 2008 and 2009;
(j) The Appellant did not earn revenue from the
forestry operations during 2007, 2008 and 2009;
(k) The Appellant did not operate in the area of
forestry during 2007, 2008 and 2009;
The fishing operations:
(l) The Appellant’s
fishing operations consisted of lobster fishing as well as buying and reselling
a variety of fish and seafood such as lobster, rock crab, herring and bait;
(m) In Northern New Brunswick, the fishing
seasons are as follows:
(1) Herring:
from mid-April to mid-May as well as in the fall;
(2) Lobster:
from May 1st to June 30th (“lobster season”);
(3) Rock
crab: from August 5th to October 15th or until fishermen
reach their quota of 77,000 pounds per license (“crab season”);
Lobster season:
(n) The Appellant fished lobster exclusively out
of Jacquet River wharf;
(o) During lobster season, there was no lobster
landing at Jacquet River wharf on 12 days during 2007, 20 days during 2008; and
10 days during 2009;
(p) The Appellant owned a boat named “#4”;
(q) During 2007, 2008 and 2009 fishing seasons,
#4 docked at Jacquet River wharf or Pointe-Verte wharf;
(r) On May 11, 2009 #4 was towed by the
Canadian Coast Guard and stayed at Pointe Verte wharf for seven days;
Crab season:
(s) During crab season, the Appellant purchased
crab from fishermen landed at Dalhousie or New Mills wharfs and sold it to
L’Association Co-op des Pêcheurs de l’Ile Ltée in Lamèque, New Brunswick (the “Lamèque Co‑op”);
(t) During crab season the Appellant also
purchased bait from Lamèque Co‑op and sold it to the fishermen at the wharfs;
(u) The Lamèque Co-op is a fish processing
facility based in Lamèque, New Brunswick, 2.5 hours away from New Mills wharf;
(v) There was no crab landing at Jacquet River
during 2007, 2008, and 2009;
(w) During crab season, the Appellant allegedly
employed between four and 15 workers;
(x) The workers made trips to Lamèque Co-op as set
out in Schedule “D” , attached, which forms part of this reply;
(y) Not all of the Appellant’s crab workers work
every day;
(z) During crab season, August is the
Appellant’s busiest month, with a decrease in September and a further decrease
in October as the fishermen reach their quotas;
(aa) Off-loading crab takes 30 to 60 minutes on
average;
(bb) Crates of crab weigh roughly 100 pounds each;
(cc) During the 2009 crab season, the latest
landing of crab at the New Mills wharf occurred at approximately 4pm;
(dd) There was no worker at the Appellant’s house
at 5 pm, when Lucien Carrier, the Appellant’s driver, was picking up the crab
to be delivered to Lamèque Co-op;
The workers in
Schedule “A”
(ee) The workers in Schedule “A” did not perform any
services for the Appellant;
(ff) The Appellant did not remunerate any of the
workers listed in Schedule “A”;
(gg) The Appellant’s business activities did not
require the engagement of the workers listed in Schedule “A”;
(hh) The terms and conditions of employment of the
workers in Schedule “A” consisted of an artificial arrangement to ensure their eligibility
for employment insurance benefits;
(ii) The assumptions of fact with respect to
Kevin Bernard are as follows:
(1) Kevin
Bernard has known the Appellant for many years;
(2) Kevin
Bernard worked 320 hours while employed with other payers and required 420
hours to qualify for employment insurance benefits;
(3) The
Appellant issued Kevin Bernard a Record of Employment for the period from
August 10, 2009 to August 22, 2009;
(4) Kevin
Bernard did not wash and stack crates at the Appellant’s home during the period
from August 10, 2009 to August 22, 2009;
(5) Five
other workers performed labor duties at the Appellant’s home during the period
from August 10, 2009 to August 22, 2009;
(6) Kevin
Bernard would not have worked alone at the Appellant’s house;
(7) The
Appellant’s business activities did not increase during the period from August
10, 2009 to August 22, 2009;
(8) Kevin
Bernard did not work for the Appellant during the period from August 10, 2009
to August 22, 2009;
(jj) The assumptions of fact with respect to Christine Carrier
are as follows:
(1) Christine
Carrier has known the Appellant all her life;
(2) The
Appellant issued a Record of Employment to Christine Carrier for the period
from August 3, 2009 to September 12, 2009;
(3) Christine
Carrier did not clean the Appellant’s truck, did not wash crates or help fix
lobster and crab traps; she did not clean the Appellant’s house during the
period from August 3, 2009 to September 12, 2009;
(4) Eight
other workers performed labor duties at the Appellant’s home during the period
from August 3, 2009 to September 12, 2009;
(5) The
Appellant’s business activities did not increase during the period from August
3, 2009 to September 12, 2009;
(6) Christine
Carrier would not have worked alone at the Appellant’s home;
(7) Christine
Carrier did not work for the Appellant during the period from August 3, 2009 to
September 12, 2009;
(kk) The assumptions of fact with respect to Debra
Carrier are as follows:
(1) Debra Carrier has known the Appellant all of her life;
(2) The Appellant issued a Record of Employment to Debra Carrier
for the period of September 17, 2007 to October 5 2007;
(3) Debra
Carrier did not clean freezers, wash trucks, cut the lawn or do housework for
the Appellant during the period from September 17, 2007 to October 5, 2007;
(4) Debra
Carrier did not pick up scallops or crab at Jacquet River wharf during the
period from September 17, 2007 to October 5, 2007;
(5) Scallops
were purchased and sold by the Appellant from July 2 to July 26, 2007 only;
(6) There
was no crab landing at Jacquet River wharf during 2007, 2008 and 2009;
(7) Debra
Carrier did not get paid by cheques issued by the Appellant;
(8) Seven
other workers performed labor duties at the Appellant’s home during the period
from September 17, 2007 to October 5, 2007;
(9) Debra
Carrier did not work for the Appellant 12 hours a day, Monday to Friday during
the period from September 17, 2007 to October 5, 2007;
(10) The
Appellant’s business activities did not increase during the period from
September 17, 2007 to October 5, 2007;
(11) Debra
Carrier did not work for the Appellant during the period from September 17,
2007 to October 5, 2007;
(ll) The assumptions of fact with respect to Michael Louis
Carrier are as follows:
(1) Michael
Louis Carrier has known the Appellant for 25 years;
(2) The
Appellant issued a Record of Employment to Michael Louis Carrier for the period
from July 29, 2007 to October 6, 2007;
(3) Michael
Louis Carrier did not off-load crab from five or seven boats at the Dalhousie
wharf during the period from July 29, 2007 to October 6, 2007;
(4) Only
one fisher landed crab at the Dalhousie wharf in 2007;
(5) Michael
Louis Carrier did not get paid by cheque issued by the Appellant;
(6) Michael
Louis Carrier did not work for the Appellant 12 hours a day, seven days a week
for the period fro July 29, 2007 to October 6, 2007;
(7) Ten
other workers performed labor duties for the Appellant during the period from
July 29, 2007 to October 6, 2007;
(8) Michael
Louis Carrier did not work for the Appellant during the period from July 29,
2007 to October 6, 2007;
(mm) The assumptions of fact with respect to Travis Carrier, Kelly
Godin, Clayton Hickey and Gail Lavigne (the “forestry workers”) are as follows:
(1) Kelly
Godin is a relative of the Appellant;
(2) The
Appellant issued Records of Employment to each of the forestry workers for the
periods as per Schedule “A”;
(3) The
forestry workers did not cut wood or operate a skidder for the Appellant during
their respective periods as per Schedule “A”;
(4) The
Appellant’s business operation did not include forestry during 2007, 2008 and
2009;
(5) The
forestry workers did not work for the Appellant during their respective periods
as per Schedule “A”;
(nn) The assumptions of fact with respect to Jacques Doucet are as
follows:
(1) The
Appellant issued Records of Employment to Jacques Doucet for the periods
from April 15, 2007 to July 7, 2007, from April 14, 2008 to July 5, 2008 and
from April 19, 2009 to July 11, 2009;
(2) Jacques
Doucet did not drive to Jacquet River, Petit Rocher or New Mills wharfs to try
to buy lobster from fishermen on the Appellant’s behalf during the lobster
season of 2007, 2008 and 2009;
(3) Jacques
Doucet did not build traps or work on the Appellant’s boat before the lobster
season started;
(4) Jacques
Doucet did not work for the Appellant an average of 12 hours a day, seven
days a week for 12 weeks from mid-April to early July of 2007, 2008 and 2009;
(5) Jacques
Doucet operated his own business, which consisted of purchasing and selling
lobster, clams and fiddleheads to the public and employed four to five workers
during the lobster season;
(6) Jacques
Doucet operated a lobster shop;
(7) Jacques
Doucet’s business was a competition of the Appellant’s business;
(8) Jacques
Doucet did not generate any additional business for the Appellant;
(9) Jacques
Doucet did not work for the Appellant during the periods from April 15, 2007 to
July 7, 2007, from April 14, 2008 to July 5, 2008 and from April 19, 2009 to
July 11, 2009;
(oo) The assumptions of fact with respect to Kevin Doucet are as
follows:
(1) The
Appellant issued a Record of Employment to Kevin Doucet for the period from
April 19, 2009 to May 30, 2009;
(2) Kevin
Doucet did not clean crates, do general labor, fix traps, transport them to the
beach or load crates of bait during the period from April 19, 2009 to May 30,
2009;
(3) Kevin
Doucet did not work at the Appellant’s shop;
(4) Kevin
Doucet would not have worked alone;
(5) Fiver
other workers performed labor duties during the period from April 19, 2009 to
May 30, 2009;
(6) Kevin
Doucet was laid off on May 30, 2009, one month prior to the end of the lobster
season;
(7) Kevin
Doucet was not laid off due to shortage of work;
(8) Kevin
Doucet did not work an average of 12 hours a day, seven days a week for six
weeks and for a total of 504 hours;
(9) Kevin
Doucet did not work for the Appellant during the period from April 19, 2009 to
May 30, 2009;
(pp) The assumptions of fact with respect to Ida-Lynn Godin are as
follows:
(1) Ida-Lynn
Godin is the Appellant’s sister;
(2) Ida-Lynn
Godin did not work as a scaler/driver for the Appellant during the period from
May 3, 2009 to July 18, 2009;
(3) Ida-Lynn
Godin did not run errands, pick up lobster or deliver bait to the Jaquet River
wharf, she did not clean crates or trucks;
(4) Ida-Lynn
Godin did not work 12 hours a day, seven days a week for 11 weeks doing errands
for the Appellant;
(5) The Appellant
issued a Record of Employment to Ida-Lynn Godin for the period from May 3, 2009
to July 18, 2009;
(6) Ida-Lynn
Godin did not work for the Appellant during the period from May 3, 2009 to July
18, 2009;
(7) Ida-Lynn
Godin lived in the Moncton area since 2005;
(8) Ida-Lynn
Godin lived with her 14 year old son at 57 Horsman Street in Salisbury, New
Brunswick until December 2009;
(9) Rudi
Mallaley who worked for the Appellant during the lobster season of 2009 did not
identify Ida-Lynn Godin as a co-worker;
(10) Rudi
Mallaley is Ida-Lynn Godin’s daughter;
(qq) The assumptions of fact with respect to Wayde Godin are as
follows:
(1) Wayde Godin is the Appellant’s brother;
(2) The Appellant issued Records of Employment to Wayde Godin for
the periods from August 6, 2007 to October 20, 2007, from July 27, 2008 to
October 4, 2008 and from July 26, 2009 to October 10, 2009;
(3) Wayde Godin did not work as a truck driver for the Appellant
or wash the Appellant’s crates or trucks during the periods from August 6, 2007
to October 20, 2007, from July 27, 2008 to October 4, 2008 and from July 26,
2009 to October 10, 2009;
(4) The Appellant engaged Lucien Carrier, Ricky Esliger and
Jeffrey Hickey as truck drivers during 2007, 2008 and 2009;
(5) No more than one delivery of crab was made to Lamèque Co-op
each day during crab season;
(6) Fifteen workers washed crates and trucks at the Appellant’s
house during the crab season of 2007, 2008 and 2009;
(7) Wayde Godin did not work for the Appellant during the periods
from August 6, 2007 to October 20, 2007, from July 27, 2008 to October 4, 2008
and from July 26, 2009 to October 10, 2009;
(rr) The assumptions of fact with respect to Léo Guitard are as
follows:
(1) The Appellant issued Records of Employment to Léo Guitard for
the periods from September 2, 2007 to September 29, 2007 and from September 28,
2008 to October 18, 2008;
(2) Léo Guitard did not unload from or load the bait onto the
Appellant’s trucks; he did not weigh the bait in crates or clean the crates at
the Appellant’s house; he did not take the crates full of bait to the Jaquet
River, Dalhousie or New Mills wharfs during 2007 or 2008;
(3) Léo Guitard did not work alone at the Appellant’s house;
(4) Nine other workers performed labor work at the Appellant’s
house during the periods from September 2, 2007 to September 29, 2007 and from
September 28, 2008 to October 18, 2008;
(5) Léo Guitard did not work with Jason Godin in 2007;
(6) Jason Godin did not work for the Appellant in 2007;
(7) Léo Guitard did not work with the Appellant’s nephew, Carlton,
in 2008;
(8) The Appellant did not hire Carlton in 2008;
(9) During 2007 and 2008, there were several days when there was
no crab landing and no sale of crab;
(10) Léo
Guitard started working one month into the 2007 crab season and two months into
the 2008 crab season;
(11) There was no increase in the Appellant’s business activity at
the time of Léo Guitard’s engagement;
(12) Léo Guitard did not work for the Appellant during the periods
from September 2, 2007 to September 29, 2007 and from September 28, 2008
to October 18, 2008;
(ss) The assumptions of fact with respect to Brad Hickey are as
follows:
(1) The
Appellant issued a Record of Employment to Brad Hickey for the period from
September 2, 2007 to December 1, 2007;
(2) Brad
Hickey did not work as a laborer or a deckhand on the Appellant’s fishing
vessel during the period from September 2, 2007 to December 1, 2007;
(3) The
Appellant fished lobster only and lobster season ended on June 30th
of each year;
(4) Brad
Hickey was not hired to clean up in the fall and pick up traps;
(5) Brad
Hickey did not run the catch to Arseneau’s fish market;
(6) In
2007, the last delivery of crab to Lamèque Coop was made on October 21, 2007;
(7) All the
other workers engaged in the fishing operations of the Appellant’s business in
2007 were laid off by October 21st;
(8) Ten
workers performed labor work for the Appellant during the period from September
2, 2007 to October 21, 2007;
(9) Of 12
co-workers identified by Brad Hickey, nine were either not working for the
Appellant during the same period of employment or were not working in the
fishing operations of the Appellant;
(10) Brad
Hickey did not work for the Appellant an average of 12 hours a day, seven
days a week for 13 weeks during the period from September 2, 2007 to December
1, 2007;
(11) Brad
Hickey did not work for the Appellant during the period from September 2, 2007
to December 1, 2007;
(tt) The assumptions of fact with respect to Brenda Hickey are
as follows:
(1) The
Appellant issued Records of Employment to Brenda Hickey for the periods
from April 29, 2007 to July 14, 2007 and from April 21, 2008 to July 5, 2008;
(2) Brenda
Hickey did not work as a laborer, fish processing laborer or construction
laborer for the Appellant during the periods from April 29, 2007 to July 14,
2007 and from April 21, 2008 to July 5, 2008;
(3) Brenda
Hickey did not work 12 hours a day, six or seven days a week during the periods
from April 29, 2007 to July 14, 2007 and from April 21, 2008 to July 5, 2008;
(4) Six
other workers performed labor work at the Appellant’s house during the periods
from April 29, 2007 to July 14, 2007 and from April 21, 2008 to July 5, 2008;
(5) Brenda
Hickey did not work for the Appellant during the periods from April 29, 2007 to
July 14, 2007 and from April 21, 2008 to July 5, 2008;
(uu) The assumptions of fact with respect to Rodney
Hickey are as follows:
(1) The Appellant issued a Record of Employment to Rodney Hickey
for the period from August 17, 2008 to October 18, 2008;
(2) Rodney
Hickey did not put bait in crates, load crab onto the truck or work in the
forestry for the Appellant;
(3) Rodney
Hickey did not cut or haul wood on the Eel River Bar First Nations property;
(4) Rodney
Hickey did not operate the Appellant’s skidder, Rockey Hickey did;
(5) Rocky
Hickey is Rodney Hickey’s brother;
(6) Rodney
Hickey did not work with Steven Esliger, Jeff Hickey or Thomas Carrier;
(7) Thomas
Carrier was a deckhand during lobster season and his employment ended on August
15, 2008;
(8) Rodney
Hickey did not work for the Appellant during the period from August 17, 2008 to
October 18, 2008;
(vv) The assumptions of fact with respect to the Late Arthur
Lapointe are as follows:
(1) Arthur
Lapointe died on November 25, 2010;
(2) Arthur
Lapointe worked 295 hours for another payer and required 420 hours to qualify
for employment insurance benefits;
(3) The
Appellant issued a Record of Employment to Arthur Lapointe for the period
from June 1, 2008 to June 14, 2008;
(4) Arthur
Lapointe did not load the crates from the boat, take them to the weight master
and load them onto the Appellant’s truck;
(5) Arthur
Lapointe did not work at Dalhousie or Jacquet River wharfs;
(6) Off-loading
crates from the boat and onto the trucks did not take more than 30 to 45
minutes;
(7) Arthur
Lapointe did not work 12 hours a day, seven days a week, for two weeks;
(8) Arthur
Lapointe was not paid by the Appellant;
(9) Arthur
Lapointe did not work for the Appellant during the period from June 1, 2008 to
June 14, 2008;
(ww) The assumptions of fact with respect to Tracy Lapointe are as
follows:
(1) The
Appellant issued a Record of Employment to Tracy Lapointe for the period
from August 5, 2007 to October 13, 2007;
(2) Tracy
Lapointe did not drive a truck and did not go to Dalhousie, Jacquet River or
Belledune wharfs to weigh the fish and bait for the Appellant during the period
from August 5, 2007 to October 13, 2007;
(3) There
was no crab landing at the Jacquet River or Belledune wharfs in 2007;
(4) Tracy
Lapointe did not work for the Appellant an average of 12 hours, seven days
a week for ten weeks for the Appellant;
(5) Five
other workers worked for the Appellant during the period from August 5, 2007 to
October 13, 2007;
(6) Tracey
Lapointe did not work for the Appellant during the period from August 5, 2007
to October 13, 2007;
(xx) The assumptions of fact with respect to the Late
Michael Tardiff are as follows:
(1) Michael Tardiff died in February 2011;
(2) Michael
Tardiff worked 98 hours and 299 hours for other payers prior to August 13,
2007;
(3) Michael
Tardiff required 420 hours to qualify for employment insurance benefits;
(4) The
Appellant issued a Record of Employment to Michael Tadiff for the period from
August 13, 2007 to September 1, 2007;
(5) Michael
Tardiff did not work an average of 11 hours per day, six or seven days a week
for three weeks during the period from August 13, 2007 to September 1, 2007 for
the Appellant;
(6) Seven
other workers perform labor work for the Appellant during the period from
August 13, 2007 to September 1, 2007;
(7) Michael
Tardiff did not work for the Appellant during the period from August 13, 2007
to September 1, 2007;
Workers listed in Schedule “B”:
(yy) The assumptions of fact with respect to Lucien Carrier are as
follows:
(1) The Appellant
issued Records of Employment to Lucien Carrier for the periods from August
5, 2007 to October 20, 2007, from July 27, 2008 to October 2, 2008 and from
August 2, 2009 to October 17, 2009;
(2) Lucien
Carrier worked as a truck driver to deliver rock crab from New Mills Wharf (the
“Wharf”) to Lamèque Co-op and
to return with bait purchased from Lamèque Co-op;
(3) The
Records of Employment issued by the Appellant inflated the hours and wages of
Lucien Carrier;
(4) Lucien
Carrier did not work 869, 856 and 864 hours during the periods from August 5,
2007 to October 20, 2007, from July 27, 2008 to October 2, 2008 and from August
2, 2009 to October 17, 2009, respectively;
(5) Lucien
Carrier did not earn $10,428, $11,128 and $11,232 during the periods from August
5, 2007 to October 20, 2007, from July 27, 2008 to October 2, 2008 and from
August 2, 2009 to October 17, 2009, respectively;
(6) When
delivering to Lamèque Co-op, Lucien Carrier worked 12 hours per day;
(7) Lucien
Carrier occasionally drove to Arseneau Fish Market to pick up or deliver
products;
(8) Arseneau
Fish Market was approximately 40 kilometers away from the Appellant’s location
and an additional 33 kilometers from Jacquet River where the Appellant sold
fish out of a truck;
(9) Lucien
Carrier did not work more than eight hours a day when delivering and picking up
products from Arseneau Fish Market;
(10) Lucien
Carrier did not wash crates and trucks for the Appellant;
(11) The
Appellant employed several other workers to wash crates and trucks during
Lucien Carrier’s periods of employment;
(12) During
the 2007 period, Lucien Carrier made 42 trips to Lamèque Co-op and five trips
to Arseneau Fish Market;
(13) During
the 2007 period, Lucien Carrier did not work more than 544 hours for the
Appellant;
(14) During
the 2008 period, Lucien Carrier made 44 trips to Lamèque Co-op and no trips to
Arseneau Fish Market;
(15) During
the 2008 period, Lucien Carrier did not work more than 528 hours for the
Appellant;
(16) During
the 2009 period, Lucien Carrier made 39 trips to Lamèque Co-op and seven trips
to Arseneau Fish Market;
(17) During
the 2009 period, Lucien Carrier did not work more than 524 hours for the
Appellant;
(18) Lucien
Carrier was paid an hourly wage of $12 in 2007 and $13 in 2008 and 2009;
(19) Lucien
Carrier’s wages received from the Appellant did not exceed $6,528, $6,864 and
$6,812 during the periods from August 5, 2007 to October 20, 2007, from July
27, 2008 to October 2, 2008 and from August 2, 2009 to October 17, 2009,
respectively;
(zz) The assumptions of fact with respect to Tom Carrier are as
follows:
(1) The
Appellant issued Records of Employment to Tom Carrier for the periods from
April 22, 2007 to July 14, 2007, from April 21, 2008 to August 15, 2008 and
from April 19, 2009 to July 11, 2009;
(2) The
Records of Employment issued by the Appellant inflated the hours worked by Tom
Carrier;
(3) Tom
Carrier did not work 994, 1020 and 1008 hours during the periods from April 22,
2007 to July 14, 2007, from April 21, 2008 to August 15, 2008 and from April
19, 2009 to July 11, 2009, respectively;
(4) Tom
Carrier did not work and was not paid during the period from July 6, 2008 to
August 2, 2008, as he was sick;
(5) During
the lobster season, May 1st to June 30th of 2007, 2008
and 2009, Tom Carrier was deckhand on the Appellant’s fishing boat and his
duties included preparing lobster traps and fishing lobster;
(6) In
2007, 2008 and 2009, the Appellant fished lobster exclusively out of Jacquet
River wharf;
(7) There
was no lobster landing at Jacquet River wharf on 12 days during 2007, 20
days during 2008; and ten days during 2009;
(8) Tom
Carrier worked 12 hours a day when fishing;
(9) Prior
to the start of the lobster season each year, Tom Carrier worked for the
Appellant, making preparations for the fishing season;
(10) Following
the end of the lobster season each year, Tom Carrier worked for the Appellant,
cleaning up the fishing gear;
(11) Tom
Carrier did not work more than eight hours a day for the Appellant when working
prior to and after the close of the lobster season;
(12) In 2007,
Tom Carrier worked nine days for the Appellant, preparing for the lobster
season; he fished lobster for 49 days and cleaned up for 14 days;
(13) In 2007,
Tom Carrier did not work for the Appellant more than 772 hours during a period
of 12 weeks;
(14) In 2007,
Tom Carrier was paid $875 per week and earned a total of $10,500;
(15) During
the period from April 21, 2008 to July 5, 2008, Tom Carrier worked for the
Appellant ten days preparing for the lobster season; he fished lobster for 41
days and cleaned up for five days;
(16) During
the period from April 21, 2008 to July 5, 2008, Tom Carrier did not work
for the Appellant more than 612 hour during a period of 11 weeks;
(17) During
the period from April 21, 2008 to July 5, 2008, Tom Carrier was paid $925
per week and earned a total of $10,175;
(18) During
the period from August 5, 2008 to August 15, 2008, Tom Carrier also worked as a
laborer for the Appellant;
(19) During
the period from August 5, 2008 to August 15, 2008, Tom Carrier worked 60 hours
a week for a total of 120 hours for the Appellant;
(20) During
the period from August 5, 2008 to August 15, 2008, Tom Carrier was paid $10 per
hour and his total earnings were $1,200;
(21) During
the period from April 19, 2009 to July 11, 2009, Tom Carrier worked for
the Appellant 12 days preparing for the lobster season, he fished lobster for
51 days and cleaned up for 11 days;
(22) During
the period from April 19, 2009 to July 11, 2009, Tom Carrier did not work
for the Appellant more than 780 hours during a period of 12 weeks;
(23) During
the period from April 19, 2009 to July 11, 2009, Tom Carrier was paid $950
per week and earned a total of $11,400;
(aaa) The assumptions of fact with respect to Kyle Dempsey are as
follows:
(1) Kyle
Dempsey worked as laborer for the Appellant during the period from August 24,
2008 to September 20, 2008, which is crab season;
(2) The
Appellant issued a Record of Employment to Kyle Dempsey for the period
from August 24, 2008 to September 20, 2008;
(3) The
Records of Employment issued by the Appellant inflated the hours and wages of
Kyle Dempsey;
(4) Kyle
Dempsey did not work for the Appellant for 336 hours during the period from
August 24, 2008 to September 20, 2008;
(5) Kyle
Dempsey did not earn $3,360 during the period from August 24, 2008 to September
20, 2008;
(6) Kyle
Dempsey’s duties consisted of washing the Appellant’s trucks and crates at the
Appellant’s house in Lorne and picking up crab and bait from New Mills and
Dalhousie wharfs;
(7) During
the period from August 24, 2008 to September 20, 2008, the Appellant’s driver
made 19 trips to Lamèque Co-op where the crab was sold and bait purchased;
(8) Laborers
who performed similar tasks to Kyle Dempsey’s and who worked for another employer
in the same region, worked an average of 55 hours per week during crab season;
(9) Kyle
Dempsey did not work more than 220 hours for the Appellant during the period
from August 24, 2008 to September 20, 2008;
(10) Kyle
Dempsey was paid an hourly wage of $10;
(11) Kyle
Dempsey did not earn more than $2,200 during the period from August 24, 2008 to
September 20, 2008;
(bbb) The assumptions of fact with respect to Rickey Esliger are as
follows:
(1) Rickey
Esliger was engaged by the Payer as a truck driver/laborer during the period
from April 29, 2007 to July 7, 2007 which is during lobster season;
(2) The
Appellant issued a Record of Employment to Rickey Esliger for the period
from April 29, 2007 to July 7, 2007;
(3) The
Record of Employment issued by the Appellant inflated the hours worked by
Rickey Esliger;
(4) Rickey
Esliger did not work 840 hours during the period from April 29, 2007 to
July 7, 2007;
(5) Rickey Esliger’s duties consisted of the following:
i) Cleaning
the truck and crates at the Appellant’s house;
ii) Driving to Jacquet River
and/or the New Mills wharf and waiting for the Appellant’s fishing boat to come
in between 1 pm and 5 pm;
iii) Helping load the catch onto
the truck and driving to Eel River Bar and/or Nigadoo where lobster was sold
and bait was purchased and delivered to fishermen;
(6) Jacquet
River and New Mills were 13 and 15 kilometers or an 11 to 14 minute drive from
Lorne;
(7) Nigadoo
and Eel River Bar were 33 and 38 kilometers or a 23 or 27 minute drive from
Lorne;
(8) Other
workers/laborers employed by the Appellant worked an average of ten hours a
day, six days a week during the lobster season;
(9) On
average, Rickey Esliger’s work hours did not exceed ten hours a day during the
period from May 1st to June 30th;
(10) Rickey
Esliger worked two days prior to the start of lobster season in order to get
the truck and gear ready and worked seven days after the lobster season in
order to help clean up and put away the gear;
(11) On
average, Rickey Esliger’s work hours outside of the lobster season did not
exceed eight hours a day;
(12) Rickey
Esliger’s total number of hours worked during the period from April 29, 2007 to
July 7, 2007 did not exceed 682;
(13) Rickey
Esliger was paid a weekly salary of $875 during the period of ten weeks;
(14) Rickey
Esliger’s total earnings for the period from April 29, 2007 to July 7, 2007 was
$8,750;
(ccc) The assumptions of fact with respect to Tracy Esliger are as
follows:
(1) Tracy
Esliger was engaged by the Appellant as a laborer during the periods from June
3, 2007 to September 1, 2007 and from July 6, 2008 to September 27, 2008;
(2) The
Appellant issued Records of Employment to Tracy Esliger for the periods from
June 3, 2007 to September 1, 2007 and from July 6, 2008 to September 27, 2008;
(3) The
Records of Employment issued by the Appellant inflated the hours and earnings
of Tracy Esliger;
(4) During
lobster season, Tracy Esliger’s tasks consisted of washing crates and fixing
traps at the Appellant’s house in Lorne and dropping bait off at the wharfs;
(5) During
crab season, Tracy Esliger’s tasks consisted of picking up crab at the wharfs
and loading the crates on the truck going to Lamèque Co-op;
(6) Tracy
Esliger did not work 1092 and 1008 hours during the period from June 3, 2007 to
September 1, 2007 and from July 6, 2008 to September 27, 2008,
respectively;
(7) Tracy
Esliger did not earn $10,920 and $10,080 during the periods from June 3, 2007
to September 1, 2007 and from July 6, 2008 to September 27, 2008, respectively;
(8) Tracy
Esliger did not work an average of 12 hours a day, seven days a week for 13
weeks in 2007 and 12 weeks in 2008;
(9) Four or
five workers performed labor tasks for the Appellant during lobster season;
(10) Tracy
Esliger worked 28 days during the 2007 lobster season;
(11) In 2007,
Tracy Esliger did not work more than seven days after lobster season;
(12) Tracy Esliger
did not work more than ten hours a day during lobster season and eight hours a
day after lobster season;
(13) The
Appellant’s business activity was minimal between lobster and crab season,
which is during July;
(14) Tracy
Esliger did not work between July 8, 2007 and July 29, 2007;
(15) Tracy
Esliger worked as a crab laborer for the Appellant during the period from July
29, 2007 to September 1, 2007, which is 5 weeks;
(16) Laborers
who performed similar tasks to Tracy Esliger’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(17) In 2007,
Tracy Esliger did not work more than 611 hours for the Appellant;
(18) In 2008,
Tracy Esliger did not start working for the Appellant prior to the start of
crab season, which is July 27, 2008;
(19) In 2008,
Tracy Esliger did not work more than 495 hours for the Appellant;
(20) Tracy
Esliger was paid an hourly wage of $10;
(21) Tracy
Esliger did not earn more than $6,110 and $4,950 during the periods from June
3, 2007 to September 1, 2007 and from July 6, 2008 to September 27, 2008,
respectively;
(ddd) The assumptions of fact with respect to Jeffrey Hickey are
as follows:
(1) Jeffrey
Hickey worked as crab laborer for the Appellant during the periods from July
27, 2008 to October 11, 2008 and from August 9, 2009 to October 17, 2009;
(2) The
Appellant issued Records of Employment to Jeffrey Hickey for the periods from
July 27, 2008 to October 11, 2008 and from August 9, 2009 to October 17, 2009;
(3) The
Records of Employment issued by the Appellant inflated the hours and wages of
Jeffrey Hickey;
(4) Jeffrey
Hickey did not work 924 and 840 [hours] during the periods from July 27, 2008
to October 11, 2008 and from August 9, 2009 to October 17, 2009, respectively;
(5) Jeffrey
Hickey did not earn $11,088 and $10,960 during the periods from July 27, 2008
to October 11, 2008 and from August 9, 2009 to October 17, 2009, respectively;
(6) Jeffrey
Hickey’s duties consisted of washing the Appellant’s trucks and crates at the
Appellant’s house in Lorne, picking up crab and bait from New Mills and
Dalhousie wharfs and doing some maintenance work on the Appellant’s truck;
(7) Laborers
who performed similar tasks to Jeffrey Hickey’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(8) Jeffrey
Hickey did not work more than 55 hours a week for 11 weeks in 2008 and ten
weeks in 2009;
(9) Jeffrey
Hickey did not work more than 605 hours in 2008 and 550 hours in 2009;
(10) Jeffrey
Hickey was paid an hourly wage of $12 in 2008 and $13 in 2009;
(11) Jeffrey
Hickey did not earn more than $7,260 and $7,150 during the periods from July
27, 2008 to October 11, 2008 and from August 9, 2009 to October 17, 2009,
respectively;
(eee) The assumptions of fact with respect to Noreen Hickey are as
follows:
(1) Noreen
Hickey worked as crab laborer for the Appellant during the periods from July
29, 2007 to October 13, 2007 and from August 3, 2008 to October 18, 2008;
(2) The
Appellant issued Records of Employment to Noreen Hickey for the periods from
July 29, 2007 to October 13, 2007 and from August 3, 2008 to October 18, 2008;
(3) The
Records of Employment issued by the Appellant inflated the hours and wages of
Noreen Hickey;
(4) Noreen
Hickey’s duties consisted of washing the Appellant’s trucks and crates at the
Appellant’s house in Lorne, picking up crab and bait from New Mills and
Dalhousie wharfs;
(5) Noreeen
Hickey did not work 904 and 924 hours during the periods from July 29, 2007 to
October 13, 2007 and from August 3, 2008 to October 18, 2008, respectively;
(6) Noreen
Hickey did not earn $9,040 and $11,088 during the periods from July 29, 2007 to
October 13, 2007 and from August 3, 2008 to October 18, 2008, respectively;
(7) Noreen
Hickey was paid an hourly rate of $10;
(8) Laborers
who performed similar tasks to Noreen Hickey’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(9) Noreen
Hickey did not work more than 605 hours and did not earn more than $6,050
during each of the periods from July 29, 2007 to October 13, 2007 and
August 3, 2008 to October 18, 2008;
(fff) The assumptions of fact with respect to Schenley Hickey are
as follows:
(1) Schenley
Hickey worked as laborer for the Appellant during crab season, from July 29,
2007 to October 20, 2007;
(2) The
Appellant issued a Record of Employment to Schenley Hickey for the period from
July 29, 2007 to October 20, 2007;
(3) The
Record of Employment issued by the Appellant inflated the hours and wages of
Schenley Hickey;
(4) Schenley
Hickey did not work 988 hours during the period from July 29, 2007 to October
20, 2007;
(5) Schenley
Hickey did not earn $9,880 during the period from July 29, 2007 to October 20,
2007`;
(6) Schenley
Hickey’s duties consisted of washing the Appellant’s trucks and crates at the
Appellant’s house in Lorne, picking up crab and bait from New Mills and
Dalhousie wharfs;
(7) The
Appellant also occasionally called-in Schenley Hickey in the evening if he
needed help to load a truck with crates of crab headed to Lamèque Co-op;
(8) Schenley
Hickey was paid at hourly rate of $10;
(9) Laborers
who performed similar tasks to Schenley Hickey’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(10) Schenley
Hickey did not work more than 660 hours and did not earn more than $6,600 during
the period from July 29, 2007 to October 20, 2007;
(ggg) The assumptions of fact with respect to Serina Hickey are as
follows:
(1) The
Appellant issued Records of Employment to Serina Hickey for the periods
from April 29, 2007 to September 1, 2007, from April 28, 2008 to July 5,
2008 and from August 9, 2009 to September 5, 2009;
(2) The
Records of Employment issued by the Appellant inflated the hours worked by
Serina Hickey;
(3) The
Record of Employment issued by the Appellant for the period from August 9, 2009
to September 5, 2009 inflated the wages of Serina Hickey;
(4) Serina
Hickey did not work 1008, 828 and 336 hours during the periods from April 29,
2007 to September 1, 2007, from April 28, 2008 to July 5, 2008 and from August
9, 2009 to September 5, 2009, respectively;
(5) During
lobster season, Serina Hickey’s duties consisted of weighing and selling
lobster at the Jacquet River wharf;
(6) Prior
to and after lobster season, Serina Hickey’s duties consisted of preparing and
cleaning for the season;
(7) During
crab season, Serina Hickey’s duties consisted of icing the crab, loading the
truck at New Mills and Dalhousie wharfs and washing crates;
(8) Serina
Hickey started to work between 8 and 10 am and usually finished work at
approximately 5pm;
(9) Four or
five other workers performed the same tasks for the Appellant during the same
periods;
(10) Serina
Hickey did not work 12 hours a day, seven days a week for 12 weeks in 2007,
2008 and 2009;
(11) During
lobster season, Serina Hickey did not work more than ten hours a day;
(12) Prior to
and after lobster season, Serina Hickey did not work more than eight hours a
day;
(13) During
crab season, laborers who performed similar tasks to Serina Hickey’s and who
worked for another employer in the same region, worked an average of 55 hours
per week;
(14) During
crab season, Serina Hickey did not work more than 55 hours a week;
(15) During
the period from April 29, 2007 to September 1, 2007, Serina Hickey worked two
days prior to lobster season, worked 61 days during lobster season and worked
three weeks of the crab season;
(16) During
the period from April 28, 2008 to July 5, 2008, Serina Hickey worked three
days prior to lobster season, 61 days during lobster season and five days after
lobster season;
(17) During
the period from August 9, 2009 to September 5, 2009, Serina Hickey worked four
weeks of the crab season;
(18) Serina
Hickey did not work more than 791, 674 and 220 hours during the periods from
April 4, 2007 to September 1, 2007, from April 28, 2008 to July 5, 2008 and
from August 9, 2009 to September 5, 2009, respectively;
(19) Serina
Hickey was paid a weekly salary of $875 in 2007, $925 in 2008 and was paid at
an hourly rate of $12 during the period from August 9, 2009 to September 5,
2009;
(20) Serina
Hickey’s earnings during the periods from April 4, 2007 to September 1, 2007
and from April 28, 2008 to July 5, 2008 were in the amount of $10,500 and
$9,250, respectively;
(21) Serina
Hickey did not earn $4,032 during the period from August 9, 2009 to September
5, 2009;
(22) Serina
Hickey’s earnings during the period from August 9, 2009 to September 5,
2009 did not exceed $2,640;
(hhh) The assumptions of fact with respect to Vanessa Hickey are as
follows:
(1) Vanessa Hickey worked as laborer for the Appellant during crab
season, from July 29, 2007 to October 20, 2007, and from July 21, 2008 to
August 28, 2008;
(2) The Appellant issued Records of Employment to Vanessa Hickey
for the periods from July 29, 2007 to October 20, 2007 and from July 21, 2008
to August 28, 2008;
(3) The Records of Employment issued by the Appellant inflated the hours
and wages of Vanessa Hickey;
(4) Vanessa Hickey did not work 988 and 444 hours during the
periods from July 29, 2007 to October 20, 2007 and from July 21, 2008 to
August 28, 2008, respectively;
(5) Vanessa Hickey did not earn $9,880 and $4,440 during the
periods from July 29, 2007 to October 20, 2007 and from July 21, 2008 to
August 28, 2008, respectively;
(6) Vanessa Hickey’s duties consisted of washing the Appellant’s
trucks and crates at the Apellants’ house in Lorne, picking up crab, weighing
and selling bait at New Mills and Dalhousie wharfs;
(7) Four or five other workers performed the same tasks as
Vanessa Hickey’s during the same periods;
(8) Vanessa Hickey’s schedule varied everyday depending on the
amount of crab to unload;
(9) Some days, Vanessa Hickey and other workers had only two or
three crates and only one or two boats to off-load;
(10) When there
was little work to be done, Vanessa Hickey was paid for hours worked only;
(11) Laborers
who performed similar tasks to Vanessa Hickey’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(12) Vanessa Hickey
did not work 10 to 12 hours a day, seven days a week during the periods from
July 29, 2007 to October 20, 2007 and from July 21, 2008 to August 28, 2008;
(13) Vanessa Hickey
did not work more than 55 hours per week for 12 weeks during the period from
July 29, 2007 to October 20, 2007;
(14) Vanessa Hickey
did not work more than 55 hours per week for five weeks during the period from
July 21, 2008 to August 23, 2008;
(15) Vanessa Hickey
worked 48 hours in the week from August 24, 2008 to August 28, 2008;
(16) Vanessa Hickey
was paid at hourly rate of $10;
(17) Vanessa Hickey
did not work more than 660 and 323 hours and did not earn more than $6,600
and $3,230, during the periods from July 29, 2007 to October 20, 2007 and
from July 21, 2008 to August 28, 2008, respectively;
(iii) The assumptions of fact with respect to Bruce
Lapointe are as follows:
(1)
Bruce Lapointe worked as laborer for the
Appellant during crab season, from August 10, 2008 to September 13, 2008,
and from August 9, 2009 to October 17, 2009;
(2) The Appellant issued Records of Employment to Bruce Lapointe
for the periods from August 10, 2008 to September 13, 2008 and from August 9,
2009 to October 17, 2009;
(3) The Records of Employment issued by the Appellant inflated the hours
and wages of Bruce Lapointe;
(4) Bruce Lapointe did not work 420 and 828 hours during the periods
from August 10, 2008 to September 13, 2008 and from August 9, 2009 to October
17, 2009, respectively;
(5) Bruce Lapointe did not earn $4,200 and $9,936 during the periods
from August 10, 2008 to September 13, 2008 and from August 9, 2009 to October
17, 2009, respectively;
(6) Bruce Lapointe’s duties consisted of washing the Appellant’s trucks
and crates at the Apellants’s house in Lorne, picking up crab and bait at New
Mills and Dalhousie wharfs;
(7) Four or five other workers performed the same tasks as Bruce
Lapointe’s during the same periods;
(8) Bruce Lapointe did not work an average of 12 hours a day, seven days
a week in 2008 and 2009;
(9) Laborers who performed similar tasks to Bruce Lapointe’s and who
worked for another employer in the same region, worked an average of 55 hours
per week during crab season.
(10) Bruce
Lapointe did not work more than 55 hours per week for five weeks in 2008 and
for 10 weeks during 2009;
(11) Bruce
Lapointe did not work more than 275 hours and 550 hours during the periods from
August 10, 2008 to September 13, 2008 and from August 9, 2009 to October 17,
2009, respectively;
(12) Bruce
Lapointe was paid at hourly rate of $10 in 2008 and $12 in 2009;
(13) Bruce
Lapointe did not work (sic) earn more than $2,750 and $6,600, during the
periods from August 10, 2008 to September 13, 2008 and from August 9, 2009 to October
17, 2009, respectively;
(jjj) The assumptions of fact with respect to Marylyn Lapointe
are as follows:
(1) Marylyn Lapointe worked as laborer for the Appellant during crab
season, from August 5, 2007 to October 20, 2007, from August 3, 2008 to October
18, 2008 and from August 2, 2009 to October 17, 2009;
(2) The Appellant issued Records of Employment to Marylyn Lapointe
for the periods from August 5, 2007 to October 20, 2007, from August 3, 2008 to
October 18, 2008 and from August 2, 2009 to October 17, 2009;
(3) The Records of Employment issued by the Appellant inflated the hours
and wages of Marylyn Lapointe;
(4) Marylyn Lapointe did not work 914, 924 and 900 hours during the
periods from August 5, 2007 to October 20, 2007 from August 3, 2008 to October
18, 2008 and from August 3, 2009 to October 17, 2009, respectively;
(5) Marylyn Lapointe did not earn $9,140, $11,088 and $10,800 during the
periods from August 5, 2007 to October 20, 2007, from August 3, 2008 to
October 18, 2008 and from August 2, 2009 to October 17, 2009, respectively;
(6) Marylyn Lapointe’s duties consisted of washing the Appellant’s
trucks and crates at the Appellant’s house in Lorne, picking up crab and bait
at New Mills and Dalhousie wharfs;
(7) Four or five other workers performed the same tasks as Marylyn
Lapointe’s during the same periods;
(8) Marylyn Lapointe did not work an average of 12 hours a day, seven
days a week in 2007, 2008 and 2009;
(9) Laborers who performed similar tasks to Marylyn Lapointe’s and
who worked for another employer in the same region, worked an average of 55 hours
per week during crab season;
(10) Marylyn
Lapointe did not work more than 55 hours per week for 11 weeks in 2007,
2008 and 2009;
(11) Marilyn
Lapointe was paid at hourly rate of $10 in 2007 and $12 in 2008 and 2009;
(12) Marylyn
Lapointe did not work more than 605 hours and did not earn more than $6,050
during the period from August 5, 2007 to October 20, 2007;
(13) Marylyn
Lapointe did not work more than 605 hours and did not earn more than $7,260
during each of the periods from August 3, 2008 to October 18, 2008 and from
August 2, 2009 to October 17, 2009;
(kkk) The assumptions of fact with respect to Carol-Ann Mallaley are
as follows:
(1) Carol-Ann
Mallaley worked as laborer for the Appellant during crab season, from August
13, 2007 to September 29, 2007 and from August 31, 2008 to October 4,
2008;
(2) In
2009, Carol-Ann Mallaley worked for the Appellant during both lobster and crab
season: from May 17, 2009 to June 27, 2009 and from August 23, 2009 to
September 12, 2009;
(3) The
Appellant issued Records of Employment to Carol-Ann Mallaley for the periods
from August 13, 2007 to September 29, 2007, from August 31, 2008 to
October 4, 2008 and from May 17, 2009 to September 12, 2009;
(4) The
Records of Employment issued by the Appellant inflated the hours and wages of
Carol-Ann Mallaley;
(5) Carol-Ann
Mallaley did not work 544, 420 and 756 hours during the periods from August 13,
2007 to September 29, 2007, from August 31, 2008 to October 4, 2008 and
from May 17, 2009 to September 12, 2009, respectively;
(6) Carol-Ann
Mallaley did not earn $5,440, $4,200 and $7,560 during the periods from August
13, 2007 to September 29, 2007, from August 31, 2008 to October 4, 2008 and
from May 17, 2009 to September 12, 2009, respectively;
(7) Carol-Ann
Mallaley’s duties consisted of washing the Appellant’s trucks and crates at the
Appellant’s house in Lorne, picking up crab and bait from New Mills and Dalhousie
wharfs;
(8) Four or
five other workers performed the same tasks as Carol-Ann Mallaley’s during the
same periods;
(9) Laborers
who performed similar tasks to Carol-Ann Mallaley’s and who worked for another
employer in the same region, worked an average of 55 hours per week during crab
season;
(10) Carol-Ann
Mallaley did not work an average of 12 hours a day, seven days a week in 2007, 2008
and 2009
(11) Carol-Ann
Mallaley did not work more than 55 hours per week for seven and five weeks in
2007, 2008, respectively;
(12) In 2009,
Carol-Ann Mallaley did not work more than ten hours per day for 45 days during
the period from May 17, 2009 to June 27, 2009 and she did not work more
than 55 hours per week for three weeks during the period from August 23, 2009
to September 12, 2009;
(13) Carol-Ann
Mallaley did not work more than 385, 275 and 615 hours during the periods
from August 13, 2007 to September 29, 2007, from August 31, 2008 to October 4,
2008 and from May 17, 2009 to September 12, 2009, respectively;
(14) Carol-Ann
Mallaley was paid at hourly rate of $10 in 2007, 2008 and 2009;
(15) Carol-Ann
Mallaley did not earn more than $3,850, $2,750 and $6,150 during the period
from August 13, 2007 to September 29, 2007, from August 31, 2008 to October 4,
2008 and from May 17, 2009 to September 12, 2009, respectively;
Workers listed in Schedule “C”:
(lll) The assumptions of fact with respect to Rachel Dally are as
follows:
(1) The
Appellant issued a Record of Employment for self-employed fisher to Rachel
Dally for the period from September 14, 2009 to October 3, 2009;
(2) Rachel
Dally did not fish or participate in making a catch on her brother’s boat
during the period from September 14, 2009 to October 3, 2009;
(3) Rachel
Dally’s brother worked 50 hours a week for another payer from September 28,
2009 to October 16, 2009;
(4) When
fishing, Rachel Dally’s brother fished alone;
(5) Rachel
Dally did not own a fishing license and did not lease a fishing license from
the Madawaska Maliseet First Nation;
(6) The
Appellant did not pay Rachael Dally for the purchase of a catch during the
period from September 14, 2009 to October 3, 2009;
(mmm) The
assumptions of fact with respect to Nicholas Esliger for the period from April
22, 2007 to July 14, 2007 are as follows:
(1) Nicholas
Esliger was engaged by the Appellant as deckhand or laborer during the period
from April 22, 2007 to July 14, 2007;
(2) Nicholas
Esliger worked on the Appellant’s boat and fished lobster during the period
from April 22, 2007 to July 14, 2007;
(3) The
Appellant was the captain of his boat;
(4) The
Appellant decided when the boat left the wharf and when it returned;
(5) The
Appellant instructed Nicholas Esliger on what tasks needed to be done;
(6) The
Appellant supervised Nicholas Esliger;
(7) Nicholas
Esliger performed his duties at the Appellant’s house before and after the
lobster season and on the boat during the lobster season;
(8) The Appellant
owned the boat as well as the equipment needed for Nicholas Esliger to perform
his duties;
(9) Nicholas
Esliger was not allowed to subcontract his work or hire a helper;
(10) Nicholas
Esliger was responsible for the tasks assigned to him;
(11) Nicholas
Esliger was paid a weekly salary of $875 per week regardless of the hours
worked;
(12) Nicholas
Esliger did not incur any expenses while performing his duties;
(13) Nicholas
Esliger did not bear any financial risk of the Appellant’s business;
(14) Nicholas
Esliger did not have an opportunity for profit over and above his weekly pay;
(15) Nicholas
Esliger did not make any investment in a business of his own;
(16) Nicholas
Esliger performed his duties for the Appellant and not in his own name;
(17) The
Appellant issued a Record of Employment for Nicholas Esliger for the period
from April 22, 2007 to July 14, 2007;
(18) The
Record of Employment issued by the Appellant for the period from April 22, 2007
to July 14, 2007 inflated the hours worked by Nicholas Esliger;
(19) Nicholas
Esliger did not work 994 hours and did not earn $10,500 during the period from
April 22, 2007 to July 14, 2007;
(20) There
was no lobster landing at Jacquet River wharf on 12 days during the 2007
lobster season;
(21) Nicholas
Esliger did not work more than 49 days on the Appellant’s boat from May 1, 2007
to June 30, 2007;
(22) Nicholas
Esliger worked 12 hours per day when fishing;
(23) Nicholas
Esliger worked nine days prior to the opening of the lobster season to prepare
the boat and gear and 14 days after the close of the season to gather the traps
and gear to be stored until the following year;
(24) The
Appellant engaged several other laborers to perform similar duties prior to and
after the lobster season;
(25) There
was no increase in business activities when no fishing occurred;
(26) Nicholas
Esliger did not work more than eight hours per day prior to and after the
lobster season;
(27) Nicholas
Esliger did not work more than 772 hours during the period from April 22, 2007
to July 14, 2007;
(28) Nicholas
Esliger earned $10,500 from the Appellant during the period from April 22, 2007
to July 14, 2007;
(nnn) The assumptions of fact with respect to Joshua Godin are as
follows:
(1) Joshua
Godin is the Appellant’s nephew;
(2) Joshua
Godin was not employed by the Appellant;
(3) The
Appellant issued a Record of Employment for self-employed fisher to Joshua
Godin for the period from May 13, 2007 to July 7, 2007;
(4) Joshua
Godin did not fish or participate in making a catch on his great uncle’s boat
during the period from May 13, 2007 to July 7, 2007;
(5) Joshua
Godin did not have a fishing license;
(6) The
Appellant did not buy any lobster or clams from Joshua Godin during the period
from May 13, 2007 to July 7, 2007;
(7) The
Appellant did not pay Joshua Godin for the purchase of lobster or clams during
the period from May 13, 2007 to July 7, 2007;
(ooo) The assumptions of fact with respect to Rocky Hickey are as
follows:
(1) The
Appellant issued Records of Employment to Rocky Hickey for the periods from
August 5, 2007 to September 29, 2007, from August 4, 2008 to October 4, 2008
and from August 2, 2009 to October 3, 2009;
(2) Rocky
Hickey was engaged by the Appellant as a skidder operator;
(3) During
2007 and 2008, Rocky Hickey was seen doing some work in the woods, using the
Appellant’s skidder;
(4) The
Appellant did not earn revenue from the forestry operations during 2007, 2008
and 2009;
(5) During
2007 and 2008, Rocky Hickey ran errands, picked up parts and made repairs to
the Appellant’s skidder outside of his employment periods of 2007 and 2008;
(6) During
2007 and 2008, Rocky Hickey may have received some remuneration for the work he
performed for the Appellant;
(7) Rocky
Hickey was not paid for the repairs performed on the Appellant’s skidder
outside of his employment periods of 2007 and 2008;
(8) Rocky
Hickey was not reimbursed for expenses incurred while running errands for the
Appellant within and outside his employment periods of 2007 and 2008;
(9) Rocky
Hickey did not perform any work for the Appellant in 2009;
(10) Rocky
Hickey’s terms and conditions of employment during 2007, 2008 and 2009 consist
of an artificial arrangement to make him eligible for unemployment insurance
benefits;
(ppp) The assumptions of fact with respect to Patrick
Levesque are as follows:
(1) The Appellant issued a Record of Employment to Patrick Levesque
for the period from April 26, 2009 to August 15, 2009;
(2) The
Record of Employment issued by the Appellant inflated the hours and wages of
Patrick Levesque;
(3) Patrick
Levesque did not work or receive remuneration for 4 weeks, between July 5,
2009 and August 2, 2009;
Period from April 26, 2009 to July
4, 2009
(4) Patrick
Levesque was engaged by the Appellant as a deckhand/laborer during the period
from April 26, 2009 to July 4, 2009, which includes lobster season;
(5) From
May 1 to June 30, 2009, Patrick Levesque’s tasks included setting up nets to
catch herring and bait, fishing for lobster, bringing it back to the wharf and
unloading it;
(6) When
fishing lobster, Patrick Levesque worked on the Appellant’s boat, #4;
(7) When
fishing lobster, Patrick Levesque worked with the Appellant as well as Tommy
Carrier and Kevin McGregor;
(8) There
were about 300 lobster traps;
(9) While
the Appellant’s boat was out of commission for seven days in May 2009, Patrick
Levesque fished herring and lobster with the Appellant’s small boat and did
some repairs on traps and ropes;
(10) During
the 2009 lobster season, there were ten days without any landing at Jacquet
River wharf;
(11) Patrick
Levesque did not work on the Appellant’s boat more than 51 days during the 2009
lobster season;
(12) Patrick
Levesque worked 12 hours a day when fishing lobster;
(13) Patrick
Levesque worked five days prior to lobster season to prepare the boat and
fishing gear and worked four days after the close of the season to clean up and
store the gear away;
(14) The
Appellant engaged several other laborers whose duties were similar to Patrick
Levesque’s, prior to and after lobster season;
(15) Patrick
Levesque did not work more than eight hours a day prior to and after the
lobster season;
(16) The
total hours worked by Patrick Levesque during the period from April 26, 2009 to
July 4, 2009 did not exceed 684 hours;
(17) Patrick
Levesque was paid a weekly salary of $950 and his total remuneration for the
period from April 26, 2009 to July 4, 2009 did not exceed $9,500;
Period from August 2, 2009 to
August 15, 2009
(18) During
the period from August 2, 2009 to August 15, 2009, Patrick Levesque did not
work for the Appellant, did not get ice ready for the crab, did not go to the
wharf and did not transfer crates to the truck to be weighed;
(19) Patrick
Levesque did not work with Tommy Carrier to deliver crab to Lamèque Co-op and
unload the truck in Lamèque;
(20) Tommy
Carrier worked for the Appellant from April 19, 2009 to July 11, 2009;
(21) Tommy
Carrier did not work during crab season in 2009;
(22) Patrick
Levesque did not drive to Lamèque Co-op eight to ten times with Jeffrey Hickey
during the period from August 2, 2009 to August 15, 2009;
(23) Jeffrey
Hickey did not drive to Lamèque Co-op during crab season; he only drove the
Appellant’s truck locally;
(24) The
Appellant’s workers were not allowed to unload the delivery trucks at the
Lamèque Co-op; only the Co-op workers were authorized to receive a delivery;
(25) All of
the Appellant’s crab workers were paid an hourly rate; none were paid a weekly
salary;
(26) The
terms and conditions of Patrick Levesque’s employment for the period from
August 2, 2009 to August 15, 2009 consisted of an artificial arrangement to
extend the length and increase the rate of his employment insurance benefits;
(qqq) The assumptions of fact with respect to Rudi Mallaley are as
follows:
(1) Rudi
Mallaley is the Appellant’s niece;
(2) The
Appellant issued a Record of Employment to Rudi for the period from April 26,
2009 to July 18, 2009;
(3) The
Record of Employment issued by the Appellant inflated the hours and wages of
Rudi Mallaley;
Period from April 26, 2009 to July
4, 2009:
(4) Rudi
Mallaley worked for the Appellant during the period from April 26, 2009 to July
4, 2009 only;
(5) During
the period from May 1, 2009 to June 30, 2009, Rudi Mallaley’s tasks
included weighing and selling lobster mostly at the Jacquet River wharf and
helping Steven Esliger, Marylyn Lapointe and Carol Ann Mallaley with the
uploading of the truck to be delivered at the Arseneau’s Fish Market;
(6) Prior
to and after the close of the lobster season, Rudi Mallaley helped with
the preparations and clean-up of the fishing gear;
(7) Rudi
Mallaley did not work 12 hours a day, seven days a week during the period from
April 26, 2009 to July 4, 2009;
(8) During
lobster season, Rudi Mallaley’s work day normally started at approximately 11am
but sometimes started at approximately 8 or 9 am and finished between 6 and 7
pm or earlier;
(9) Prior
to and after the close of the lobster season, Rudi Mallaley did not work
more than eight hours per day;
(10) During
the 61 days of lobster season, Rudi Mallaley did not work more than ten hours
per day;
(11) Rudi
Mallaley did not work more than 682 hours during the period from April 26, 2009
to July 4, 2009;
(12) Rudi
Mallaley was paid a salary of $950 per week during the period from April 26, 2009
to July 4, 2009 and her total earnings for that period was $9,500;
Period from July 5, 2009 to July
18, 2009:
(13) Rudi
Mallaley did not work for the Appellant during the period from July 5, 2009 to
July 18, 2009;
(14) The
Appellant did not buy scallop from any fisherman or sell fish or scallop to
either Lamèque Co-op or Arseneau’s Fish Market in July 2009;
(15) Rudi
Mallaley did not perform any services during the period from July 5, 2009 to
July 18, 2009; and
(16) The
terms and conditions of Rudi Mallaley’s employment for the period from July 5,
2009 to July 18, 2009 consisted of an artificial arrangement to extend the
length and increase the rate of her employment insurance benefits.
[5]
The Respondent treated these files as a fraud
case. An investigation of the affairs of Mr. Layne O. Godin and his workers was
initiated as a result of information obtained from the public that Mr. Layne O.
Godin was selling stamps, paying high wages and adding work weeks to qualify
the workers for full employment insurance benefits or for partial benefits provided
for by the Employment Insurance Act (“the Act”).
[6]
Mr. Jacques Blanchard, a former inspector with Human
Resources and Skills Development Canada (“HRSDC”), testified at the hearing and
he explained how the investigation was conducted. The investigation started at
the end of 2009 and lasted for seven to eight months. The years under review
were 2007 and 2008. During the course of the investigation, 60 of Mr. Layne O.
Godin’s workers were interviewed and questionnaires were filled out and signed
by the workers in front of Mr. Blanchard or his assistant, Ms. Hélène Lévesque.
When a worker made a comment during his interview, it was written down and the worker
was asked to initial besides it. Mr. Layne O. Godin refused to be interviewed
and did not provide any information at that stage.
[7]
Interviews were also conducted with fishermen in
general to obtain information on the workings of the industry and from fish
buyers who signed receipts for fish deliveries. They confirmed that deliveries
were not made every day. Government officials were also consulted to obtain
information on the licences required by a fisherman and permits required to cut
wood on public and private lands.
[8]
Mr. Blanchard formally denied the allegation made
by some workers that he made an offer to let their employment insurance claims
go through in exchange for a confirmation that Mr. Layne O. Godin was selling
stamps.
[9]
As a result of the investigation, only two
workers had a favourable outcome. The rest were referred to the Canada Revenue
Agency (“CRA”) for a ruling on their insurable hours, insurable earnings and pensionability
of their employment with Mr. Layne O. Godin
[10]
Mrs. Lucie St-Amour, a complex case review
officer with the CRA, testified at the hearing and she described the work undertaken
in reviewing the files of the workers. Essentially, she was looking for
corroboration between information provided by HRSDC and information gathered from
interviews with the workers. She conducted interviews with Mr. Layne O. Godin
and most of the workers except for Wayde Godin. A summary of each interview was
typed and each page was initialized by the worker and by another CRA’s officer,
Mrs. Laura Papineau, who was also present during the interviews.
[11]
Ms. St-Amour consulted with officials from Fisheries
and Oceans Canada’s and the Forestry Department of New Brunswick. She also
spoke to third parties such as the representatives of Lamèque Co-op, Arseneau
Fish Market and Mr. Earl Le Bellois of the First Nations.
[12]
In terms of documents, Mr. Layne O. Godin
submitted the workers’ payslips which were already in the CRA’s files. No
Record of Employment (“ROE”), bank statements nor timesheets were provided by Mr. Layne O.
Godin at the time of the interview with him.
[13]
As a result of her reviews, Ms. St-Amour issued
41 rulings dated March 28, 2011, confirming that:
(a)
21 of the workers were not in insurable
employment with Mr. Layne O. Godin;
(b)
three of the workers were not Fishers; and
(c)
17 of the workers were in insurable employment
with Mr. Layne O. Godin but their insurable hours and earnings for their
respective periods of employment had to be re-determined.
[14]
All 41 workers appealed their respective ruling
to the CPP/EI Appeals division of the CRA. Mrs. Brigitte Gagnon was the appeals
officer who dealt with the workers’ appeals. It took her a year and a half to
review the files. She prepared a Fact Finding Questionnaire that was filled out
by each worker. She spoke to third parties concerning the forestry and fishing
industry and she did comparisons.
[15]
For the workers working during the crab fishing
season, Mrs. Gagnon concluded that the wages paid were reasonable but that the
working hours were inflated. Individuals working in that industry, work on
average 55 hours per week, more at the beginning of the season and less at the
end. No worker works 12 hours per day, seven days a week during the entire
season from mid-August to mid-October.
[16]
For the workers cutting wood, Ms. Gagnon found
out that a licence was required to cut wood on Crown and private lands but no permits
were obtained by those workers. Furthermore, no record of wood sales during the
2007, 2008 and 2009 years were filed as evidence and the owner of the private
farm where the wood was alleged to have been cut told Mrs. Gagnon that there
was no commercial wood cutting on his farm except for his own personal
consumption.
The Position
of Mr. Layne O. Godin
[17]
Mr. Layne O. Godin’s appeal applies to all 41
workers even if only five of them formally filed an appeal with this Court.
[18]
Mr. Layne O. Godin testified at the hearing. He
essentially provided general information on his fishing and forestry operations
and the work performed by his workers. Mr. Godin explained that he hires two or
three workers for three weeks in April in preparation for the lobster season
which is from April 30 to June 30. The work to be done during the pre-lobster
season consists of checking, repairing and painting the traps, delivering the
traps to the wharves, checking and repairing the nets for herring fishing and
ensuring that the boats will be in good condition for the fishing season. One
boat is used for fishing herring and the biggest boat is used for fishing lobster.
The crews on the boats consisted of the same three persons in 2007 and 2008, that
is, Mr. Layne O. Godin himself, Tommy Carrier and Nicholas Slugger. In 2009,
Nicholas Slugger was replaced by Patrick Lévesque.
[19]
In terms of documentary evidence, Mr. Godin submitted
the following documents:
−
the registration of his three boats used for
fishing lobster and herring;
−
invoices for the delivery of baits to the Arseneau
Fish Market which show that he was in operation during the month of April of
each year;
−
the truck inspection reports showing that he had
six or seven trucks in 2007;
−
a map showing from where he purchased crabs;
−
receipts from Arseneau Fish Market showing trips
made by Lucien Carrier;
−
purchase and sale of lobsters by Jacques Doucet;
−
the timesheets prepared by Tracy Esliger;
−
payments for the purchases of lobster for three
years;
−
T-4 slips prepared by Tracy Esliger issued to crab
fishermen;
−
receipts for wood delivered to Bathurst in 2010
but cut in 2009;
−
receipts from the Arseneau Fish Market showing
that he was still in operation during the month of July of each year.
[20]
Every April, Mr. Layne O. Godin purchases baits
for herring fishing from Lamèque Co-op and delivers them to fishermen and to
the Arseneau Fish Market. Mr. Godin prepares the invoices for the sale of the
baits before their deliveries. Sale of the baits are cash operations. For the
suppliers of crabs, the costs of the baits delivered to them are deducted from
the sale of crabs to Mr. Layne O. Godin.
[21]
Mr. Layne O. Godin explained that the timesheets
were prepared by Tracy Esliger but that he also kept track himself of the
working hours of all workers. The workers had to report to his place at the
beginning and at the end of each working day, except for the wood cutters who
went directly to the farmlands as they were paid by production. Mr. Godin said
that he then provided the information to Tracy Esliger for preparation of the
timesheets.
[22]
All workers were paid in cash for work done the
preceding week at the end of their shifts on Fridays at Mr. Layne O. Godin’s
place.
[23]
During the lobster season, Mr. Layne O. Godin
also purchases lobsters from the fishermen on the wharves and sell them to the
public on the wharves and to fish markets in the region. All lobster
transactions are in cash. Mr. Layne O. Godin said that he makes a profit of
$1.50 to $2.00 on a pound of lobster. Mr. Jacques Doucet, one of the
Appellants, was principally involved in the purchase and sale of lobster on
behalf of Mr. Layne O. Godin who advanced him money so that he could pay for the
lobsters. During the lobster season, Mr. Layne O. Godin usually employs
three workers on the boat and three on land.
[24]
Mr. Layne O. Godin explained that the crab fishing
season begins on the first Monday of August and ends at the end of October and
that it is busier at the beginning of the season. At the end of July, the truck
drivers would go to Lamèque Co-op to pick up baits which are then delivered to
fishermen. The amount charged for the baits to the suppliers of crabs are then
deducted from the sale of the crabs to Mr. Layne O. Godin. Sales of the baits are
paid in cash. During the crab fishing season, Mr. Layne O. Godin buys crabs
from different fishermen and delivers them to the Lamèque Co-op and to fish
markets like the Arseneau Fish Market. Because there are quotas for crabs, one
appointed monitor has to be present when the crabs are unloaded from the
fishing boats. There is only one monitor for fishing zone #23 and this explains
why the truck drivers often have to wait on the wharves. The normal working
hours for the workers during the crab season are from 7 or 8 a.m. to 8 p.m.
Their work essentially consists of loading the crabs in the trucks, washing the
crabs and the trucks, unloading the crabs from the trucks if they cannot be
delivered immediately. Deliveries usually take place from 6 p.m. to midnight. During
the crab season, Mr. Layne O. Godin employed between 8 to 10 full-time workers
and 7 or 8 part-time workers.
[25]
Mr. Layne O. Godin explained that the wood
cutting activities took place on a private farm from August 2 to October 10, 2009
only. In 2007 and 2008, the wood was cut by the native people. The workers then
simply skinned the wood and transported it to Bathurst where it was sold. In
2007, Mr. Layne O. Godin had only two workers involved in that activity but, in
2008, he hired two more workers. According to Mr. Layne O. Godin, the gross
revenue generated by the wood cutting operations was approximately $50 000
in 2009, $48 000 to $49 000 in 2008 and $45 000 in 2007.
Testimony of the Intervenor and
the Other Appellants
[26]
Ms. Christine Carrier, the intervenor in Mr. Layne
O. Godin’s appeal, testified at the hearing. She stated that her own claim for
employment insurance benefits was cut off. She worked for Mr. Layne O. Godin
for five weeks starting the first week of August 2009. She provided cleaning
services, mostly at Mr. Layne O. Godin’s house, for a few hours mainly in
the evenings. While working for Mr. Godin, Ms. Carrier was also working at
Denny’s restaurant from 6 a.m. to 2 p.m. She lived in Belle Dune which is about
a 40-minute drive from Mr. Godin’s house. At the hearing, she said that she
kept a record of her working hours on a calendar, that she received her
payslips prepared by Mr. Godin at the end of the week and that she was always
paid in cash on Saturdays by Mr. Godin. She stated that she did not see anybody
at Mr. Godin’s house while working there. She could not give the name of any
person she may have seen on Mr. Godin’s property inside or outside the house.
[27]
Ms. Carrier was interviewed on two occasions:
the first time by Hélène Lévesque and the second time by Lucie St. Amour.
She was also asked to answer two questionnaires. There are many contradictions
between her testimony in Court and her answers to the questionnaires concerning
the way she kept records of her working hours, the work performed for Mr. Godin
and the exact place where she performed the work. In summary, the witness was
not credible.
Steven Esliger
[28]
Mr. Esliger worked for Mr. Layne O. Godin during
the crab seasons of August 10 to October 13, 2007 and August 15 to October 18,
2008 and during the lobster season of May 15 to June 27, 2009. His appeal is only
for the 2007 and 2008 years because the CRA reduced his insurable hours and
wages for those two years. For 2009, the CRA increased his insurable hours and
wages.
[29]
His work during the crab season consisted of unloading
crabs from the fishermen’s boats, weighing the crabs and loading the crabs in
the trucks. He said that these activities required five to six workers on the
wharves. Mr. Godin had his own scale but did not have any crane. During the
2007 and 2008 crab seasons, he claimed that he worked seven days a week, 12
hours a day. He was paid $10 an hour in 2007 and $12 an hour in 2008.
[30]
He testified that he kept track of his working
hours in a book but he did not file any document proving that fact. No fishermen
were subpoenaed to confirm the seven days a week of crab loading during the
crab season.
Lucien Carrier
[31]
Mr. Lucien Carrier was a truck driver who worked
for Mr. Layne O. Godin during the 2007, 2008 and 2009 crab seasons. His day of
work usually started at noon at Mr. Layne O. Godin’s house where he takes a truck
(usually the eight-ton truck). His first task was to go to Arseneau’s Fish
Market to pick-up crabs and to drive back to Mr. Godin’s house where part of
the crabs was unloaded. Mr. Carrier would go home between 3 p.m. and 4 p.m. for
rest and supper and would return to Mr. Godin’s house to deliver the rest of
the crabs at Lamèque Co-op where the crabs were unloaded by employees of the
cooperative using their own equipment. The truck was then loaded with baits and
ice. Mr. Carrier drove back to Mr. Godin’s house late in the evening. In
his testimony, Mr. Carrier stated that during his trips to Lamèque he was often
accompanied by his girlfriend and a brother-in-law.
[32]
During cross-examination, Mr. Carrier stated
that he did not go to Lamèque Co-op everyday. Sometimes there was no need to go
to Lamèque Co‑op because there were no crab transactions or because bad
weather prevented the fishermen from going to sea. On those days, he would work
reduced hours at Mr. Godin’s house. He also pointed out that near the end of
the season, there is usually less crab being caught which results in a reduced
number of trips to Lamèque.
Jacques Doucet
[33]
Mr. Jacques Doucet worked for Mr. Layne O. Godin
during the 2007, 2008 and 2009 lobster seasons from mid-April to the beginning
of July. His job was to go to the wharves to buy lobsters directly from the
fishermen. Since the lobsters had to be paid in cash, Mr. Godin advanced him approximately
$5,000 for this purpose.
[34]
Mr. Doucet testified that he was working alone
and that his working day started between 6 to 8 a.m. at Mr. Godin’s house. He took
a truck and Mr. Godin assigned him places to go. He had to be on the wharves
between 11:30 a.m. and 4:35 p.m. The wharves were located at Jack River, Petit
Rocher and Pointe Verte. He said he worked seven days a week and that during a lobster
season, only five to six days were lost due to bad weather.
[35]
Mr. Doucet testified that he was the sole owner
of a fish market located close to his house and that during the lobster season,
he hired two or three full-time employees. He confirmed that he never sold the
lobster he bought for Mr. Godin at his own fish market.
Wayde Godin
[36]
Mr. Wayde Godin is Mr. Layne O. Godin’s brother
and was hired for the 2007, 2008 and 2009 crab seasons. His main task was to take
care of the maintenance of the vehicles and to wash the crab traps. His working
hours at Mr. Layne O. Godin’s house were from 8 a.m. to 8 p.m. He was
always present on site except when he had to purchase parts for the trucks.
Kelly Godin
[37]
Mr. Kelly Godin is not related to Mr. Layne O. Godin.
From August 2, 2009 to October 10, 2009, he worked for Mr. Layne O. Godin
cutting wood on a private farm located about a 10-minute drive away from his
house. He has a lot of experience and know how to handle a chain saw. His
working hours were from 5 a.m. to 8 or 9 p.m. seven days a week. He worked with
two other workers of Mr. Layne O. Godin, Rocky and Clayton Hickey.
Analysis
[38]
The legislative provisions on which the Minister
relied in making the determinations are found in subsection 6(1) of the Canada
Pension Plan, paragraphs 5(1)(a), 5(2)(i) and subsection 5(3)
of the Act, section 9.1 or subsection 10(3) of the EIR,
subsection 2(1) of the IECPR, sections 1 and 2 of the Fishing
Regulations and paragraphs 251(1)(a) and (c), paragraph
251(2)(a) of the Income Tax Act. They read as follows:
6 (1) Pensionable employment is
(a)
employment in Canada that is not excepted employment;
5 (1) Subject to subsection (2), insurable
employment is
(a)
employment in Canada by one or more employers, under any express or implied
contract of service or apprenticeship, written or oral, whether the earnings of
the employed person are received from the employer or some other person and
whether the earnings are calculated by time or by the piece, or partly by time
and partly by the piece, or otherwise;
Excluded
employment
(2) Insurable
employment does not include
(i) employment if
the employer and employee are not dealing with each other at arm’s length.
Arm’s length dealing
(3) For
the purposes of paragraph (2)(i),
(a) the question of
whether persons are not dealing with each other at arm’s length shall be
determined in accordance with the Income Tax Act and
(b) if the employer is,
within the meaning of that Act, related to the employee, they are deemed to
deal with each other at arm’s length if the Minister of National Revenue is
satisfied that, having regard to all the circumstances of the employment, including
the remuneration paid, the terms and conditions, the duration and the nature
and importance of the work performed, it is reasonable to conclude that they
would have entered into a substantially similar contract of employment if they
had been dealing with each other at arm’s length.
Hours of Insurable Employment — Methods of Determination
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.
10(3) Where the number of hours agreed to
by the employer and the worker or group of workers under subsection (2) is not
reasonable or no agreement can be reached, each worker is deemed to have worked
the number of hours in insurable employment established by the Minister of
National Revenue, based on an examination of the terms and conditions of the
employment and a comparison with the number of hours normally worked by workers
performing similar tasks or functions in similar occupations and industries.
Earnings from
Insurable Employment
2(1) For the purposes of the definition insurable earnings
in subsection 2(1) of the Act and for the purposes of these Regulations, the
total amount of earnings that an insured person has from insurable employment
is
(a) the total of all amounts, whether wholly or partly pecuniary,
received or enjoyed by the insured person that are paid to the person by the
person’s employer in respect of that employment, and
(b) the amount of any gratuities that the insured person is required
to declare to the person’s employer under provincial legislation.
Interpretation
1(1) The
definitions in this subsection apply in these Regulations.
Act
Act means the Employment Insurance Act (Loi)
buyer
buyer means a person who buys a catch for the purpose of reselling it,
either in the form in which it was caught or after processing, and not for the
purpose of using it as food, feed or bait. (acheteur)
catch
catch means any natural product or
by-product of the sea, or of any other body of water, caught or taken by a crew
and includes fresh fish, cured fish, Irish moss, kelp and whales, but does not
include fish scales or seals, and
(a) where only a
portion of a catch is delivered to a buyer, means the portion delivered; and
(b) where more than one
catch or portion of a catch is delivered to a buyer at one time, means the
catches or portions that are delivered. (prise)
crew
crew means a group of fishers who generally engage in making a catch
together or who have actually engaged in making a catch together and, in the
case of a single fisher, crew or member of a crew,
as the case may be, means that single fisher. (équipage)
cured fish
cured fish means the following fish and fish products:
(a) salted groundfish,
smoked herring, pickled mackerel, pickled turbot, pickled herring, pickled and
salted alewives, pickled trout and other pickled fish products; and
(b) cod oil and cod
livers. (poisson traité)
employer
employer means a person included by section 3 as the employer of a fisher. (employeur)
fisher
fisher means a self-employed person engaged in fishing and includes a person
engaged, other than under a contract of service or for their own or another
person’s sport,
(a) in making a catch;
(b) in any work incidental
to making or handling a catch, whether the work consists of loading, unloading,
transporting or curing the catch made by the crew of which the person is a
member, or of preparing, repairing, dismantling or laying-up the fishing vessel
or fishing gear used by that crew in making or handling the catch, where the
person engaged in any such incidental work is also engaged in making the catch;
or
(c) in the
construction of a fishing vessel for their own use or for the use of a crew of
which the person is a member in making a catch. (pêcheur)
fishing gear
fishing gear means any specialized equipment, other than hand tools or clothing,
used by a crew exclusively in making a catch. (engins
de pêche)
fresh fish
fresh fish means fish that is not cured fish. (poisson
frais)
major attachment
claimant
major
attachment claimant means a claimant who qualifies
to receive benefits and has $3,760 or more of insurable earnings from
employment as a fisher in their qualifying period. (prestataire
de la première catégorie)
minimum wage
minimum wage, in respect of the earnings of a fisher from the catch of a crew,
means the minimum wage in effect in the province where the fisher resides on
January 1 of the year in which the catch is sold. (salaire
minimum)
minor attachment
claimant
minor
attachment claimant means a claimant who qualifies
to receive benefits and has less than $3,760 of insurable earnings from
employment as a fisher in their qualifying period. (prestataire
de la deuxième catégorie)
(2) An employer who is engaged in work incidental to a catch that is
generally performed on shore shall not, at any time, be regarded as a member of
the crew that made the catch.
General
2 A person who is a fisher shall be included as an insured person
and, subject to these Regulations, the Act and any regulations made under the
Act apply to that person with such modifications as the circumstances require.
Arm’s length
251.(1) For the
purposes of this Act,
(a) related persons shall be deemed not
to deal with each other at arm’s length;
. . .
(c) in any other case, it is a question
of fact whether persons not related to each other are, at a particular time,
dealing with each other at arm’s length.
Definition of “related persons”
(2) For the purpose of this Act, “related
persons”, or persons related to each other, are
(a) individuals connected by blood
relationship, marriage or common-law partnership or adoption;
[39]
My first observation is that the workers and Mr. Layne O. Godin were given a lot of
opportunities to provide HRSDC and the CRA documents to corroborate the work they
performed and explanations corroborating the fact that seven to ten workers
worked 12-hour days, seven days a week during the lobster and crab seasons
despite fluctuations in weather conditions and diminishing stocks of resources
at the end of the fishing seasons.
[40]
In terms of evidence put forward by the various Appellants,
there were many inconsistencies in what the workers and Mr. Layne O. Godin said
to the various inspectors and officers of HRSDC and the CRA. There were also inconsistencies
amongst themselves.
[41]
Mr. Layne O. Godin’s evidence consisted
primarily of documents prepared by persons who did not come to testify in Court
and therefore could not be cross-examined to authenticate the documents. For
instance, according to Mr. Godin, the payslips and timesheets for the workers
were prepared by Tracy Esliger. She did
not testify in Court to confirm that she did prepare the payslips, the
timesheets and the T-4s and to describe the procedure followed to collect the
information for that purpose. We also do not know who prepared the invoices from
Arseneau Fish Market and these persons could not be cross-examined to confirm
the accuracy of the invoices or the actual circumstances that led to the
purchases of fish, crabs and lobsters in 2007, 2008 and 2009.
[42]
Mr. Layne O. Godin’s testimony was not accurate
in many aspects. For example, he said that, during the crab season, he employed
seven to eight workers on land but when asked to provide the names of these
workers for 2007, he could not do so.
[43]
Another example of contradictory evidence by Mr.
Layne O. Godin was regarding the drivers of the eight-ton truck. He testified
that Jacques Doucet, Lucien Carrier and Wayde Godin drove the eight-ton truck
for deliveries to the Lamèque Co-op. During Mr. Lucien Carrier’s
cross-examination, he explained that a Class 2 license was required in order to
drive the eight-ton truck. When asked to produce his license, he admitted that
he did not hold a Class 2 license. Finally, Mr. Wayde Godin testified that his
duties were primarily to clean the crates and do the maintenance of the trucks.
He never testified that he drove the eight-ton truck.
[44]
Mr. Layne O. Godin also testified that Christine
Carrier was hired on a part-time basis to clean crates and trucks. However, Ms.
Carrier indicated on the questionnaires that her primary responsibility was to
do housework. She was also unable to name any of the workers who would have
cleaned the crates and trucks with her, as the evidence shows that seven or
eight workers were cleaning crates and trucks at one time. Strangely enough,
she also said that she never saw any other workers on Mr. Godin’s property
while she was there.
[45]
Mr. Layne O. Godin testified that his workers
worked Sundays to Saturdays and were paid on the following Friday. They all had
to sign a payslip and were paid in cash. They were paid in person every Friday
at the end of their shifts, between 6 p.m. and 10 p.m. The evidence given by Christine
Carrier contradicted Mr. Godin’s evidence in many aspects. For example, she
testified that Mr. Godin prepared the workers’ payslips and that she was paid
on Saturdays. In the questionnaires that she provided to both HRSDC and the CRA
between February 2010 and February 2012, she testified that she would cash her
paycheques at the bank or at times, Mr. Layne O. Godin would cash them for her.
[46]
Mr. Stephen Esliger’s testimony at the
hearing also contradicted the answers he gave during the HRSDC and CRA
interviews in February and November 2010. He testified that he worked seven
days a week, 12 hours a day while his payslips do not reflect this nor do the
timesheets submitted on his behalf. During the trial, he testified that Mr.
Layne O. Godin wrote down the payslips in front of him which is in direct
contradiction with Mr. Godin’s testimony who said that the payslips were
prepared by Tracy Esliger. Moreover, at the hearing, Mr. Stephen Esliger testified
that he was paid in cash whereas he said to the integrity branch investigators that
he was paid by cheques and that he gave his cheques to his mother who took care
of his banking.
[47]
Mr. Lucien
Carrier testified that he did not keep track of his working hours and did not
know that the hours on his payslips did not correspond to the hours on the
records of employment issued to him for 2007, 2008 and 2009. Each of these
Records of Employment had inflated hours when compared to the payslips. Mr.
Carrier could not name any other workers present at Mr. Layne O. Godin’s house
when he would go there at noon to get the truck and around 5 p.m. to go to
Lamèque Co-op despite the fact that most workers testified that they worked 12
hours a day starting at 8 a.m., 7 days a week. He also testified that even when
there was no need to go to Lamèque because it was too windy to fish crab, he
would work reduced hours at Mr. Layne O. Godin’s house.
[48]
Mr. Jacques
Doucet testified that he was buying lobster for Mr. Layne O. Godin seven days a
week, 12 hours a day. Mr. Doucet confirmed in his testimony that he had his own
business of selling lobster from his own fish market. As documentary evidence,
Mr. Layne O. Godin tendered various documents, in particular sale slips from
Labillois Lobster and Arseneau Fish Market. Ms. Labillois was not called as a
witness to authenticate those sale slips, nor did we have anyone from Arseneau
Fish Market. Furthermore, the sale slips do not assist Mr. Doucet’s appeal
since they were all addressed either to Mr. Doucet personally or to Doucet
Fish Market and not to Mr. Layne O. Godin.
[49]
Mr. Wayde Godin
testified that he was washing the crab traps and the trucks and did maintenance
on the trucks on Mr. Layne O. Godin’s property. He said that he worked 12
hours a day, seven days a week but no other worker working 12 hours a day,
seven days a week mentioned having seen him at Mr. Godin’s house or to be one
of the workers.
[50]
Mr. Kelly Godin
testified that he worked 13 to 15 hours a day, seven days a week, cutting wood
on a property which was four acres wide and 50 to 100 acres deep. He never
mentioned that this land was intended to be clear cut and never explained how
the trees were marked so as to identify them for cutting. There is no cogent or
credible evidence that Mr. Kelly Godin was cutting wood during the 2007, 2008
and 2009 years nor if any wood was sold during those years. Some invoices from
mills dated from 2010 were submitted but those invoices fall in the category of
self-serving documents as no one was called to testify on behalf of these mills
to confirm they had been purchasing wood from Mr. Godin during the appeal
period.
[51]
All the workers are not credible witnesses. They
all testified that they did not have a bank account but, when cross-examined,
they admitted that they received employment insurance benefits and that they needed
a bank account to cash their cheques. No one gave consistent answers to HRSDC
and the CRA during the various stages of the process and finally nor to this
Court either. No additional evidence was submitted during this trial than what was
already available at each stage of the review process with respect to the
determination of insurable hours or earnings or whether the workers actually
worked for Mr. Layne O. Godin.
[52]
For all these reasons, the appeals are
dismissed.
Signed at Ottawa,
Canada, this 15th day of April 2016.
“Réal Favreau”
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