Dockets: 2013-2113(EI)
2013-2114(CPP)
BETWEEN:
ZHIYAN HAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal heard on October 22, 2013 at Toronto, Ontario
By: The Honourable
Justice Judith M. Woods
Appearances:
|
For the
Appellant:
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Tony Cheung
|
____________________________________________________________________
JUDGMENT
The appeals, with respect to decisions of the
respondent that the appellant did not have insurable employment within the
meaning of the Employment Insurance Act or pensionable employment within
the meaning of the Canada Pension Plan with EHERE International
Corporation during the period from April 3, 2006 to September 22, 2006, are
dismissed, and the decisions are confirmed. The parties shall bear their own
costs.
Signed at Ottawa, Ontario this 28th day of October 2013.
“J. M. Woods”
Citation: 2013 TCC 340
Date: 20131028
Dockets: 2013-2113(EI)
2013-2114(CPP)
BETWEEN:
ZHIYAN HAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
Zhiyan Han appeals from the
Minister’s decisions under the Employment Insurance Act and the Canada
Pension Plan that she was not engaged in insurable or pensionable
employment with EHERE International Corporation (the “Corporation”) during the
period from April 3, 2006 to September 22, 2006.
[2]
The basis for the
Minister’s decisions was that an employer-employee relationship did not exist
(Letter dated March 19, 2013).
[3]
In these appeals, the Minister submits
that the decisions should be confirmed because Ms. Han did not actually
work for the Corporation. Rather, the Minister submits that Ms. Han, her
spouse, Yanhui Wen, and the Corporation participated in a scheme to create a
paper trail which was designed to enable her to falsely claim benefits under
the Employment Insurance Act.
[4]
Ms. Han’s position is that she had
a valid contract of service and that she performed services during regular work
hours of approximately 8 hours per day.
[5]
Ms. Han was the only witness at
the hearing.
[6]
The central background facts may
be briefly stated. The Corporation was incorporated on March 30, 2006 in order
to operate a business involving the import and export of electronics. It
appears that the business was wound down after a few years.
[7]
The principal
shareholder of the Corporation was Yunxue Liu, who was an acquaintance of Mr.
Wen.
[8]
Ms. Han testified that she
commenced working for the Corporation around the time of its incorporation as
an office clerk and bookkeeper. She stated that she was employed for eight
hours per day, and that she left the employment several months later just
before giving birth. Ms. Han testified that she returned to the Corporation a
year later to work for a few months.
[9]
Mr. Wen also worked for the
Corporation and was a director. Ms. Han testified that he was associated with
the Corporation from March 20, 2006 to September 3, 2010.
Discussion
[10]
The issue to be decided
is whether Ms. Han was employed in insurable and pensionable employment with
the Corporation during the Period.
[11]
Ms. Han has the initial burden to
establish that she worked for the Corporation for 8 hours per day during the Period.
The burden has not been satisfied, either on a prima facie basis or on a
balance of probabilities.
[12]
Ms. Han’s testimony was
self-interested and too brief to be persuasive. I also note that Ms. Han did
not provide any supporting documentation except for documents that could easily
have been fabricated, such as a pay summary and a record of employment.
[13]
In the Reply, the
Minister assumed that the Corporation’s business was not active until 2007.
[14]
Ms. Han successfully demolished
this assumption by introducing an invoice for the purchase of electronic
equipment that was issued to the Corporation in November 2006, a couple of
months after her employment ended. Ms. Han seems to suggest that this invoice
supports her position because the Corporation was required to do marketing and
research in advance of purchasing this equipment.
[15]
The problem that I have with this
submission is that there is no third party evidence that links Ms. Han with any
work done by the Corporation. Even if I accept that the Corporation was conducting
marketing and research during the period at issue, there is no reliable
evidence that Ms. Han performed any of the work.
[16]
Further, Ms. Han testified that
she worked regular 8 hour work days. It seems unlikely that Ms. Han could have
been occupied doing office work and bookkeeping for 8 hours a day during the
infancy of the Corporation.
[17]
Turning to the evidence led by the
Crown, it introduced some evidence to support its submission that Ms. Han
was involved in a scheme to falsely claim employment insurance benefits. The
evidence consisted of bank records which show that Mr. Wen made deposits into
the Corporation’s bank account from which Ms. Han received payments purporting
to be remuneration.
[18]
Ms. Han testified that the
deposits by her spouse were an investment with the Corporation. This brief
explanation was not persuasive.
[19]
In addition, during
cross-examination Ms. Han was asked about a Canada Revenue Agency questionnaire
signed by her spouse. In the questionnaire, Mr. Wen stated that the Corporation
owed him several thousand dollars and that most of this investment was Ms.
Han’s salary. Ms. Han testified that she had no idea whether this was true.
[20]
I have given no weight to this
document because the Minister did not subpoena Mr. Wen to testify. However, Ms.
Han’s testimony on this point is significant. I simply do not find it credible
that Ms. Han had no idea whether the statements in the questionnaire above were
true.
[21]
This is sufficient to dispose of
Ms. Han’s appeal.
[22]
Finally, I would mention that some
of the factual assumptions in paragraph 8 of the Reply may not be within the
knowledge of Ms. Han and are within the knowledge of the Minister. I have not
taken these assumptions into account. For example, an assumption was made that
an investigation revealed that the Corporation was implicated in a scheme that
involved the issuance of false ROEs (Record of Employment) to individuals so
that they could claim employment insurance benefits that they were not entitled
to.
[23]
The Minister could have led evidence
to support this assumption and chose not to. I have not taken these assumptions
into account.
[24]
As it turns out, these particular
assumptions are not crucial to the Minister’s case. Ms. Han has failed to
establish that she was employed by the Corporation for eight hours per day, or
even at all. The appeals will be dismissed and the decisions will be confirmed.
Signed at Ottawa, Ontario this 28th day of October
2013.
“J. M. Woods”
Email this Content