Date: 19971209
Docket: 96-2046-UI
BETWEEN:
CHANTALE GÉLINAS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Garon, J.T.C.C.
[1] This is an appeal from a determination by the Minister of
National Revenue that the appellant’s employment with Ferme
G.N.F. Inc. (“the payer”) from March 11 to
June 7, 1991, and from May 25 to August 7, 1992,
was not insurable because it was not held under a contract of
service.
[2] The allegations of fact on which the Minister of National
Revenue relied in determining that the employment was not
insurable are set out in paragraph 5 of the Reply to the
Notice of Appeal, which reads as follows:
[TRANSLATION]
5. In making his determination, the respondent Minister of
National Revenue relied, inter alia, on the following
facts:
(a) the payer ran a farming business that specialized in sheep
raising;
(b) Guy Dupont managed the payer’s business;
(c) he claims that he hired the appellant on a full-time
basis to file cards on the ewes, do the cleaning and feed the
animals;
(d) during the periods at issue, the appellant did not work
full time for the payer;
(e) she worked a few times on the cards for the sheep barn and
occasionally cleaned the payer’s office;
(f) the paycheques the payer gave the appellant included the
wages of the appellant’s husband, who worked for the
payer;
(g) the appellant’s representative, Carol Abud, did not
want the appeals officer to question the appellant;
(h) the payer and the appellant entered into an arrangement to
qualify the appellant for unemployment insurance benefits;
(i) during the periods at issue, there was no
employer-employee relationship between the appellant and
the payer.
[3] Through her counsel, the appellant admitted
subparagraphs (a), (b), (c) and (g) of paragraph 5 of
the Reply to the Notice of Appeal. The other subparagraphs of
paragraph 5 were denied.
[4] The appellant was the only person who testified on her
behalf. At the respondent’s request, testimony was given by
an investigator from the Department of Human Resources
Development, an appeals officer from Revenue Canada, the
appellant’s husband, Jean-Pierre Pearson, and Guy
Dupont, the payer’s representative.
[5] The appellant stated that during the periods at issue, she
and her husband, Jean-Pierre Pearson, lived in the
payer’s farmhouse. According to her, Mr. Pearson
looked after their only child, who was just under a year old,
during her first work period. She said that during her second
work period, Mr. Pearson looked after their two children
(the second having been born in December 1991) while she
worked for the payer. According to her, her husband did not work
for the payer during the two work periods in question.
[6] When the appellant and her husband arrived in the region
in 1991, the appellant had no experience as a shepherd, but she
had done other kinds of farm work.
[7] The appellant explained that she arrived at the farm at
about 7:00 a.m., fed the ewes, separated the ewes from the
lambs and put them in a pen. She had to ensure that each lamb was
drinking milk from its mother, and she tagged them and gave them
injections. During the afternoon of a working day, the appellant,
with Mr. Dupont’s help, might separate the mothers
from the lambs that were old enough. The lambs were weighed to
determine which should be sent to the slaughterhouse. She usually
finished her work at about 4:00 p.m. According to her, she
worked 35 to 45 hours a week. She said that there were two sheep
barns on the farm, a small one and a large one. The farm had 400
ewes at that time; 300 to 350 of them lambed during each of the
years in question. Each ewe normally gives birth to two
lambs.
[8] The appellant used the payer’s tools. The operation
of the payer’s sheep barn was supervised by Guy Dupont, a
shareholder of the payer. He was the one who gave the appellant
instructions. The appellant was, of course, not liable for the
payer’s debts.
[9] The appellant also explained that she had to set up a card
system. For each ewe, a card had to be prepared showing the
number of lambs the ewe had had, whether they were female or
male, whether the lambing had gone well, whether the ewe’s
lambs had died, whether the lambs were of good quality and
whether the ewe had milk. “Problem ewes” were not
kept. When the appellant and her husband moved into the farmhouse
in 1991, there was a room in which cards on the sheep had been
stored. The cards on some of the ewes could no longer be found.
She therefore worked on the cards for the lambs born in 1991 and
earlier. Tags were put on the lambs’ ears. She explained
the need to keep records for the ewes. It is the shepherd who has
to fill out the cards.
[10] Her gross pay was $338, which meant that her
take-home pay was $200 a week. She was paid weekly by
cheque. The appellant stated that the cheques were sometimes not
honoured because the payer had no funds available. She was not
paid in cash by the payer. Near the end of the 1991 period, the
payer had the necessary funds.
[11] Mr. Dupont was in the workplace regularly. During the
lambing season, he was there during the evenings, but not
overnight.
[12] Accommodation was provided by the payer. The
appellant's husband had to work a certain number of hours
every week to make up for the provision of accommodation. In this
regard, she testified that Mr. Pearson had to do about
10 hours of work a week [TRANSLATION] “to pay for
housing”, as she put it.
[13] The appellant also stated that she worked for the payer
in 1992. Her work was more outside the house. The fence building
began, rocks were picked up and the pastures were prepared. Every
morning, it was necessary to go around the pastures to see if any
ewes had lambed in the fields. If so, they had to be picked up
with a tractor and trailer and taken with the lambs to the sheep
barn. Ewes and lambs that had been separated from their mothers
were kept outside. Sick ewes and ewes that had to be with their
lambs were kept inside.
[14] The appellant's working hours in 1992 were the same
as in 1991, namely from 7:00 a.m. to 4:00 p.m. She was
the only one doing this work. Other people harvested hay, but she
did not take part in it; she was pregnant. All she did was look
after the lambs. She refused to put the cards concerning the
lambs on computer, and she gave the reasons for her refusal. The
total number of sheep went up again in 1992.
[15] In cross-examination, the appellant categorically denied
that she had not worked consecutive weeks. She met with Serge
Picard of the Department of Human Resources Development, but
according to her he did not take what she told him into account.
She refused to sign a declaration drawn up by Mr. Picard. In
the end, she said that she had spent about an hour a day
preparing the cards. The people working in the fields did not
necessarily come to the farm. According to her, the payer might
have had about 20 fields. The fences on the farm were in poor
condition.
[16] Guy Savard, a senior investigation officer from the
Department of Human Resources Development, stated in his
testimony that he was in charge of the investigation conducted
with the Royal Canadian Mounted Police into the application of
the Unemployment Insurance Act. The investigation
concerned the payer and its employees. A search was carried out
on December 8, 1995, at Guy Dupont’s home. A
blitz was organized to question the payer’s employees,
among others. Five investigators and a member of the RCMP divided
up the questioning to be done. Most of the employees met with two
investigators from the department in question. Mr. Savard
was accompanied not by an investigator but by a member of the
RCMP, Gina Thériault. One of the people
Mr. Savard questioned with this RCMP member as part of the
investigation was Jean-Pierre Pearson, the
appellant’s husband. They met with Mr. Pearson twice.
Mr. Pearson came the first time following a telephone call
from Mr. Savard or Gina Thériault. After being
given a warning, he decided to consult a lawyer. He was met with
the afternoon of the same day, after being given a warning. He
signed the warning but refused to sign the declaration that was
taken down. That declaration was adduced in evidence although
counsel for the appellant objected to this. The declaration reads
as follows:
[TRANSLATION]
I went to the Motel Val Moni in Amqui on 31-01-96
after being requested to do so in a telephone call I received on
31-01-96. My meeting was scheduled for 1:00 p.m.
in room 310. I identified myself using my social insurance
number, 231-579-061, and my driver’s licence,
P6255-190552-07. I began working for Ferme G.N.F.
Inc. on or about 15-12-91 and I stopped in 1994;
during the entire period, I received a record of employment each
year with the minimum number of weeks or a few additional weeks.
I acknowledge that record of employment No. N82288787, which
I received for the period from 16-12-91 to
20-03-92, does not reflect reality since I continued
working after 2-04-92 because Mr. Dupont told
me: I will give you a record of employment so you can be entitled
to unemployment insurance benefits and you will continue to look
after the farm (sheep barn) as before. That meant that he could
save a salary, and a few times, when there were cheques made out
to other people and countersigned by me, that was money he was
giving me in addition to my unemployment insurance. The same is
true of the other years; the scenario was the same in 1993, with
record of employment No. N85141558 for the period from
4-01-93 to 2-04-93, and for 1994, with
record of employment No. N87540000 for the period from
10-01-94 to 18-03-94. I acknowledge that
when I filed my claims for benefit on 26-03-92,
8-04-93 and 24-03-94, the signature on
the claims was mine and the first and last days worked
corresponded to the records of employment. The reason I did this
was that I did not have much choice; my family had to be able to
live and had to have a roof over its head, and with what
Guy Dupont was proposing to me, I had practically no choice.
As for Marie Paule Pelletier, she did not work between March
and June 1992; I was the one who looked after the farm. The
same is true of my spouse, Chantale Gélinas: she
hardly worked at all, and in any event she did not work for 10
weeks between May and August 1992, because I was still the
one doing the work. As for Guy Dupont, I cannot say whether
he worked, but he was often there because he lived below me,
opposite the sheep barn.
I acknowledge that when I filed my claims for benefit on
26-03-92, 8-04-93 and
24-03-94, I knew that I would continue to work for
Ferme G.N.F. Inc. and therefore that there was no shortage of
work or work stoppage. It was a suggestion made by
Guy Dupont, who made me because he knew that I did not have
much choice, since he knew I could not find work elsewhere
because of my family situation. He used that to offer me this
agreement. I acknowledge that it was not right to have these
false records of employment for 1992, 1993 and 1994, but when you
are caught up in something, it is not so easy to get out of it. I
also acknowledge that when I filled out my unemployment insurance
benefit cards between 1992 and 1994, I was making a false
representation every time I did so, because I knew that I had
worked.
I acknowledge that everything written in this declaration by
Guy Savard is consistent with what was discussed and represents
the truth and that I was never pressured or threatened so that I
would sign this declaration.
I refuse to sign this declaration even though I know it
represents the truth because of information I have received from
a lawyer suggested to me by legal aid.
Declared before me __________________
at Amqui Signature of Declarant
this 31st day of January 1995 Position____ Tel.:______
(signature) Address_____________
______________
[17] In his testimony, Mr. Savard stated, inter alia,
that the record of employment indicating that Mr. Pearson
had worked from December 16, 1991, to March 20, 1992,
did not reflect reality since he had continued to work pursuant
to an agreement reached with Mr. Dupont that required him to
keep looking after the farm. According to Mr. Savard,
Mr. Pearson confirmed that the appellant did not work for 10
consecutive weeks and that he was the one who continued to work
so that he could receive unemployment insurance benefits.
According to Mr. Savard, Mr. Pearson stated that he did
the work for the appellant.
[18] Mr. Dupont, the payer’s representative, received
unemployment insurance benefits during the appellant’s
employment period in 1991. During the appellant’s second
employment period, in 1992, Mr. Dupont worked for the
Société d’exploitation des ressources de la
vallée for at least eight weeks, from June 14 to
about August 22.
[19] Mr. Savard’s testimony was followed by that of
Mario Paquet of Revenue Canada, who dealt with the
appellant’s file as an appeals officer. He explained that
he had analysed all the evidence gathered during the
investigation by the Department of Human Resources Development in
the appellant’s case and 10 related cases. In reaching
his decision, Mr. Paquet relied, inter alia, on
Mr. Pearson’s declaration reproduced above, which in
substance affirmed that the appellant had not worked for 10 weeks
from May to August 1992. He also relied on the appellant’s
declaration that it was not true that she had worked in 1991. He
also referred to Mr. Dupont’s declaration of
October 1, 1995, that the appellant had done cleaning, filed
the cards on the ewes and prepared documents. Mr. Paquet
concluded by saying that he was not in possession of facts
[TRANSLATION] “that contradicted all the information I had
in the file”. Mr. Paquet also stated that he had
himself had a discussion with Mr. Dupont.
[20] Mr. Dupont’s version must also be considered.
During the periods at issue, he worked mainly for the
Société d’exploitation des ressources de la
vallée. He also managed Ferme G.N.F. Inc. Mr. Dupont
stated that during the periods with which we are concerned, he
went to the farm every other day. He described himself as a
part-time supervisor.
[21] He described the appellant’s work by saying that he
had asked her to update the cards on the sheep so that the
necessary data could be put on computer. She also looked after
the sheep barn and fed the animals. According to him, she did 40
to 50 hours of work a week. She also washed the windows of the
sheep barn and did other cleaning. He explained that the major
lambing period every year was in December, January or February.
In March and April, the bulk of the work involved feeding the
animals. He said that sheep had been raised on the farm since
1976.
[22] Mr. Pearson, who was not a shareholder of the payer,
testified about his interview with an officer from the Department
of Human Resources Development, Mr. Savard. He explained
that he had refused to sign the declaration drawn up by
Mr. Savard at the end of the interview because his wife, the
appellant, had told him that she had been informed by a lawyer
that he was not required to sign. He said that the interview with
Mr. Savard and an RCMP officer had gone “very
calmly”. He expressed his agreement with the declaration as
follows:[1]
[TRANSLATION]
Q. Did you agree, did you agree with . . . where it is
stated:
I acknowledge that everything written in this declaration by
Guy Savard is consistent . . . .
You initialled it; do you agree with it?
A. Yes . . . well, I did agree, but there are still a number
of things, it’s like what’s said, it’s like I
say at a given time, I mean about questions of time, questions of
. . . how can I put it, it wasn’t, I didn’t give
exact answers to the questions he was asking, which could have
gone back, which really went back quite far. And I often said as
well, I think it’s written down, I wasn’t surmising
but I wasn’t answering in the affirmative by giving a real
yes, but that’s how it was. I mean that it happened like
that, and about dates or about a certain case, it was quite
possible, but even I could not answer with a straight yes or no.
You know, I mean that there were many things that really went
back quite far, and that’s it, that's all.
He also gave the following explanation of the assertion in the
declaration that the appellant had not worked for 10 weeks
between May and August 1992:[2]
[TRANSLATION]
That for instance, “she did not work”, no,
that’s not . . . she worked but I still did some work. Just
like that, what was written, it’s like I said earlier,
it’s not . . . exactly, it’s as if he wrote down
“she was not working” — it might mean that
she didn’t work for three months or that she worked during
the week but I still did some work, but I didn’t mean that
Chantale didn’t work at all, that I was the one who did the
work.
He added the following in response to the next question: [3]
[TRANSLATION]
CATHERINE LETELLIER:
. . . she did not work between March and June 1992; I was
the one who looked after the farm. The same is true of my spouse,
Chantale Gélinas: she hardly worked at all, and in any
event she did not work for 10 weeks between May and
August 1992, because I was still the one doing the work.
A. No, it’s like I just said, answering with a yes or a
no would contradict what I said, because basically, it means that
I said she didn’t work. But I never said that she
didn’t work.
Q. OK. But did she work for 10 consecutive weeks?
A. Yes, certainly.
[23] In cross-examination, he answered yes to the following
question by counsel for the appellant: [TRANSLATION] “So
you are telling us that Ms. Gélinas did in fact work
from May to August 1992?”
[24] In this case, I must determine whether there was a
contract of service between the appellant and the payer during
the two periods in question.
[25] The following is alleged in subparagraphs (d) and
(e) of paragraph 5 of the Reply to the Notice of Appeal:
[TRANSLATION]
(d) during the periods at issue, the appellant did not work
full time for the payer; [and]
(e) she worked a few times on the cards for the sheep barn and
occasionally cleaned the payer’s office . . . .
[26] If I accepted the testimony given by the appellant at the
hearing, I would have to conclude that the allegations in these
two subparagraphs are unfounded. However, the appellant’s
version is contradicted to some extent by the version attributed
to Jean-Pierre Pearson in the declaration that he did not
sign but did initial. In particular, he initialled the comment at
the end of the declaration, which I will reproduce again for ease
of reference:
[TRANSLATION]
I refuse to sign this declaration even though I know it
represents the truth because of information I have received from
a lawyer suggested to me by legal aid.
[27] A careful analysis of the testimony given at the hearing
makes it clear that Mr. Pearson never stated that what was
attributed to him in the declaration was untrue. It is true that
he expressed some reservations about the declaration in his
testimony at the hearing; I would even say that there seems to be
a certain contradiction in some respects between his testimony
before the Court and the declaration recorded by Mr. Savard.
On the other hand, he stated that the interview with
Mr. Savard and Gina Thériault went “very
calmly”; he did not complain about the way it was
conducted.
[28] Furthermore, the appellant acknowledged that the version
of her work for the payer attributed to her by Serge Picard,
the investigator from the Department of Human Resources
Development, differed from the version given at the hearing.
[29] All things considered, I prefer Mr. Pearson’s
version, as told to Mr. Savard and a member of the RCMP, to
the appellant’s version. I am inclined to believe that
Mr. Pearson’s declaration is in substance correct as
regards the work done by the appellant. It seems likely to me
that the appellant did work for the payer during the two periods
in question. I find that she did not work either full time or
continuously. Thus, I conclude from the evidence that the
allegations of fact in subparagraphs (d) and (e) of
paragraph 5 of the Reply to the Notice of Appeal have not
been refuted.
[30] I note here that Guy Dupont’s testimony does not
entirely corroborate the appellant’s in respect of the
first work period. For example, he was not present in the
workplace to the extent indicated by the appellant in her
testimony before the Court.
[31] When all is said and done, I do not accept the
appellant’s version with respect, inter alia,
to the extent of the work she did for the payer during the two
periods in question.
[32] In my view, it has not been shown that the appellant was
required by a contract of service to perform specific work of the
nature she described during the periods in question. Rather, what
existed was convenience employment that did not meet the
requirements of a contract of service, inter alia as
regards the work to be done. However, it is likely that some work
was done by the appellant during the two periods in question. In
this regard, the allegation in subparagraph (f) of
paragraph 5 of the Reply to the Notice of Appeal seems
plausible to me. In any event, the burden of proof was on the
appellant.
[33] I therefore conclude that there was no genuine contract
between the payer and the appellant during the periods in
question.
[34] For these reasons, the appellant’s appeal is
dismissed.
Signed at Ottawa, Canada, this 9th day of December 1997.
“Alban Garon”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 1st day of October
1998.
Stephen Balogh, Revisor
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