Citation: 2011 TCC 483
Date: 20111025
Dockets: 2009‑1798(EI)
2009‑1878(CPP)
BETWEEN:
ALBERT OUELLET,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Dockets: 2009‑1772(EI)
2009‑1879(CPP)
BETWEEN:
MARTINE LÉONARD,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Dockets: 2009‑2862(EI)
2009‑2863(CPP)
BETWEEN:
ESTATE OF ARSÈNE THIBAULT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Dockets: 2009‑2327(EI)
2009‑2328(CPP)
BETWEEN:
YVON SAVARD,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Dockets: 2009‑2496(EI)
2009‑2497(CPP)
BETWEEN:
CAMIL PERRON,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Docket: 2009‑2303(EI)
BETWEEN:
ALAIN CYR,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Docket: 2009‑1955(EI)
2009‑1956(CPP)
BETWEEN:
CAMILLE PELLETIER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Dockets: 2009‑1519(EI)
2009‑1565(CPP)
BETWEEN:
DONALD ST‑ONGE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
Docket: 2009‑1354(EI)
BETWEEN:
GASTON LÉVESQUE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
The Appellants are
appealing a decision of the Minister of National Revenue (the "Minister")
concerning the insurability of their employment with the same employer, namely,
601163 NB Inc. (the "Payor") during the following periods:
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SR (2)
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Albert Ouellet :
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June 23 to October 3, 2003
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SR (2)
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Martine Léonard :
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June 23 to October 3, 2003
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1 (2) DS
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Arsène Thibault
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June 23 to October 3, 2003
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(2) DS
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Yvon Savard
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April 14 to December 27, 2003
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(2) DS
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Camil Perron
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August 4 to December 19, 2003
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SR (1)
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Alain Cyr
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June 23 to September 26, 2003
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SR (2)
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Camille Pelletier
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June 2 to September 26, 2003
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SR (2)
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Donald St‑Onge
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July 7 to October 10, 2003
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(1) DS
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Gaston Lévesque
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June 23 to October 3, 2003
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[2]
In addition, Albert
Ouellet, the Estate of Arsène Thibault, Martine Léonard,
Yvon Savard, Camil Perron, Camille Pelletier and Donald St‑Onge
are appealing a decision of the Minister that they did not hold pensionable
employment with the Payor, within the meaning of the Canada Pension Plan
(the "Plan"), during the periods identified for each of them in the
paragraph above.
[3]
All of the appeals were
heard on common evidence. The Minister's decision stated that none of the Appellants
held insurable employment with the Payor during the relevant periods because
they were not employed under a contract of service. Alternatively, the decision
stated, their employment was not insurable because they had a non‑arm's‑length
relationship under paragraph 5(2)(i) of the Employment Insurance
Act (Act) and, more specifically, a de facto non‑arm's‑length
relationship under paragraph 251(1)(c) of the Income Tax Act.
The Minister's other decision stated that none of the Appellants at issue had
worked for the Payor, so they did not hold pensionable employment in accordance
with paragraph 6(1)(a) of the Plan during the relevant periods,
given that there was no contract of service between the seven Appellants concerned
and the Payor.
[4]
In making his decision
on the insurability of the nine Appellants' employment, the Minister relied on
the same assumptions of fact (aside from the fact that the Record of Employment
of each Appellant showed different hours worked and different earnings). Those
assumptions of fact are set out at paragraphs 6 and 8 of the Reply to
Notice of Appeal in each of the files at issue, as follows:
[translation]
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6.
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In making his
decision, the Respondent relied on the following assumptions of fact:
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(a)
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The Payor was
incorporated on January 10, 2003, under the laws of New Brunswick;
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(b)
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The Payor's
sole shareholder and director was Camille Ouellet;
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(c)
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The Payor's
declared activity was the operation of a forestry business ("the Business");
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(d)
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During 2003,
the Payor received income from logging;
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(e)
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From February 3, 2003, to February 24, 2003, no
employees were on the payroll, but the Payor had wood sales totalling $52,101
during that time;
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(f)
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From April 11, 2003, to May 30, 2003, only one
worker was on the payroll, but the Payor had wood sales totalling $170,087 during
that time;
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(g)
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The Payor kept
no records of its income and expenditures;
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(h)
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The Payor had
no licence to operate its business;
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(i)
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The Payor
signed no contracts for stumpage rights;
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(j)
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The Payor
never filed a tax return;
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(k)
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The Payor never
remitted source deductions to the Minister of National Revenue (the "Minister");
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(l)
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The Payor was
never registered with WorkSafeNB;
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(m)
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The Payor was
part of a group of corporations that was the subject of a major investigation
by the Employment Insurance Commission;
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(n)
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The major
investigation showed that these corporations, including the Payor, were
involved in schemes, with individuals such as the Appellant, designed to
provide the individuals with false Records of Employment so that they could
qualify for Employment Insurance benefits to which they were not entitled;
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(o)
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During the
period at issue, the Appellant was not supervised;
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(p)
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During the
period at issue, the Payor had no control over the Appellant;
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(q)
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During the
period at issue, the Appellant performed no service for the Payor; and
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(r)
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The Appellant
received no earnings from the Payor.
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8.
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Regarding the de
facto non‑arm's‑length relationship, the Respondent made the
following assumptions of fact:
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(a)
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All of the
facts set out at paragraph 6 of this document;
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(b)
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The Appellant received a Record of Employment from the
Payor bearing serial number A76214192, which stated that 850 hours had
been worked and that $13,260 in earnings had been paid;
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(c)
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The Record of
Employment bearing serial number A76214192 is false; and
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(d)
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The Appellant
and the Payor agreed on a scheme to enable the Appellant to qualify for
Employment Insurance benefits to which he was not entitled.
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[5]
In making his decision
that the Appellants concerned did not hold pensionable employment within the
meaning of the Plan, the Minister relied on the same assumptions of fact, which
are set out at paragraph 6 of the Reply to Notice of Appeal in each of the
files at issue and read as follows:
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6.
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[translation]
In making his
decision, the Respondent relied on the following assumptions of fact:
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(a)
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The Payor was
incorporated as a corporation on January 10, 2003, under the laws of New
Brunswick;
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(b)
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The Payor's
sole shareholder and administrator was Camille Ouellet;
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(c)
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The Payor's
declared activity was the operation of a forestry business ("the
Business");
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(d)
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During 2003,
the Payor received income from logging;
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(e)
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From February 3, 2003, to February 24, 2003, no
employees were on the payroll, but the Payor had wood sales totalling $52,101
during that time;
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(f)
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From April 11, 2003, to May 30, 2003, only one
worker was on the payroll, but the Payor had wood sales totalling $170,087
during that time;
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(g)
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The Payor kept
no records of its income and expenditures;
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(h)
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The Payor had
no licence to operate its business;
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(i)
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The Payor
signed no contracts for stumpage rights;
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(j)
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The Payor
never filed a tax return;
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(k)
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The Payor
never remitted source deductions to the Minister of National Revenue (the
"Minister");
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(l)
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The Payor was
never registered with WorkSafeNB;
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(m)
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The Payor was
part of a group of corporations that was the subject of a major investigation
by the Employment Insurance Commission;
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(n)
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The major
investigation showed that these corporations, including the Payor, were
involved in schemes, with individuals such as the Appellant, designed to
provide the individuals with false Records of Employment so that they could
qualify for Employment Insurance benefits to which they were not entitled;
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(o)
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During the
period at issue, the Appellant was not supervised;
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(p)
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During the
period at issue, the Payor had no control over the Appellant;
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(q)
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During the
period at issue, the Appellant performed no service for the Payor; and
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(r)
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The Appellant
received no earnings from the Payor.
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[6]
Carole
Thibault (daughter of the late Arsène Thibault) and Sylvie Malenfant (widow of
the late Arsène Thibault) testified in support of Arsène Thibault. Furthermore, all
of the witnesses testified in support of their own positions. Charles Édouard Albert (a major fraud investigator with the
Canada Revenue Agency ["CRA"]), Annette Melançon (a CRA rulings
officer), Ronald Roy (a retired Service Canada investigator) and Louise
Boudreault (the appeals officer in these files) testified in support of the
Respondent's position.
[7]
In these
files, it is essentially a matter of determining whether the Appellants worked
for the Payor during the relevant periods and, if so, whether they acted in
concert without separate interests.
[8]
The
testimony of Mr. Savard may be summarized as follows:
(i) He was
hired by Camille Ouellet.
(ii) He
worked for the Payor during the relevant periods (see Exhibit I‑27)
as operator of a skidder belonging to the Payor. I note immediately that the Payor's
payroll journal (Exhibit I‑27) indicates that Mr. Savard worked
250 hours in April and May 2003, whereas medical certificates
(Exhibits I‑1, I‑2, I‑3, I‑4 and I‑5) show
that he was unfit to work for the period from December 12, 2002, to
June 2, 2003. I also note that, in response to the question on the
unemployment benefits claim he filed with Human Resources Development Canada on
June 6, 2003 (Exhibit I‑6), Mr. Savard did not indicate
that he had worked 250 hours for the Payor in April and
May 2003. Instead, Mr. Savard's
answer was [translation]
"End of sick leave".
(iii) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week
(10 hours a day, from Monday to Friday). I note that I find it
implausible that Mr. Savard was able to work for 10 hours a day in
November and December 2003, given the limited hours of daylight in a day
during this time.
(iv) He was
paid his wages on the Thursday or Friday of each week. He received his pay at the
office from Claude St‑Onge or Camille Ouellet personally, in the form of
cheques that he endorsed on the spot. Mr. St‑Onge
or Mr. Ouellet then gave him cash. Mr. Savard
stated that he did not know why his wages had been paid to him in this way.
I note that Ms. Léonard testified that the Payor
had issued no cheques before June 23, 2003. In fact, Ms. Léonard testified that, after June 23, 2003, she had
personally filled out all of the cheques drawn to the order of the Appellants
concerned that were dated before June 23, 2003. Ms. Léonard's testimony in this regard seems credible,
since the evidence also shows that the cheques used by the Payor in 2003 were
delivered to it on June 6, 2003.
(v) He received
all of his work‑related instructions (the "what", "where"
and "when") from Claude St‑Onge. Mr. Savard added that
his hours of work had been calculated by Mr. St‑Onge. I emphasize
that the evidence (see Exhibit I‑27) showed that Mr. St‑Onge
was not employed by the Payor throughout the entire period of Mr. Savard's
alleged employment in 2003.
(vi) He was in
no way related to the Payor's sole shareholder.
(vii) Camil
Perron was his co‑worker in November and December 2003. I note that, on
June 3, 2008, Camil Perron stated, in the presence of Annette Melançon and
Violet Arsenault (Exhibit I‑9) that he had worked at the same work
site as Mr. Savard in September 2003. Yet,
the Payor's payroll journal (Exhibit I‑27) indicates that
Mr. Savard did not work in September 2003. In fact, this payroll journal indicates that, in the fall
of 2003, Mr. Savard only worked for the Payor in November and
December 2003.
[9]
I point out
that it is very difficult for me to assign any probative value to Mr. Savard's
testimony given that not only was his testimony generally vague and unspecific,
it was contradicted on a number of points by the documentary evidence and by other
testimonies. As well, as emphasized below, I found that Mr. Savard's
testimony was quite simply implausible in certain respects.
[10]
The
testimony of Gaston Lévesque may be summarized as follows:
(i) He was
hired by Claude St‑Onge.
(ii) He
worked throughout his period of employment as the operator of a skidder
belonging to the Payor, on woodlots near the towns of Kedgwick and Campbellton,
New Brunswick. I note that, on February 6, 2008, Mr. Lévesque told
Charles Albert that he had worked for the Payor in Quebec's Matapédia region.
(iii) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week (10 hours
a day from Monday to Friday).
(iv) He was
paid his wages on Thursday or Friday each week. He received his wages in
the forest from Claude St‑Onge in person and by cheque, the first of
which was returned for insufficient funds. Afterwards,
he also received his pay in the form of cheques that he endorsed on the spot.
Mr. St‑Onge then gave him cash. I note that the cheques drawn by the Payor to the order of
Mr. Lévesque, filed in evidence as Exhibit I‑7, provide no
indication whatsoever that the first cheque was deposited at
Mr. Lévesque's bank and returned for insufficient funds.
(v) Throughout
his period of employment, he resided for free at the Payor's head office in
Kedgwick. In this respect, I point out immediately that Donald St‑Onge
(Claude St‑Onge's cousin) testified that Mr. Lévesque was actually
staying in a rooming house owned by Lionel Couturier.
(vi) He
travelled to work alone in his truck. Every so often, Donald St‑Onge
travelled with him. I stress immediately that
Claude St‑Onge testified that he had travelled regularly with
Mr. Lévesque. I also emphasize that during a telephone conversation on
February 26, 2009, in the presence of Mr. Lévesque's lawyer,
Mr. Lévesque told Ms. Louise Boudreault (appeals officer) that he
travelled alone to work. I further note in
this regard that Alain Cyr also told Ms. Boudreault that he had travelled
with Mr. Lévesque in the course of his work.
(vii) He had
no co‑workers, but from time to time he saw Arsène Thibault at the sites
where he worked. I note that, on February 28, 2009, Mr. Lévesque
told Ms. Boudreault that he had travelled alone and had worked alone at
the work sites. I also note that Camille
Pelletier, Camil Perron, Alain Cyr and Claude St‑Onge all testified or
previously stated having worked at the same work sites as Gaston Lévesque (see
Exhibits I‑9, I‑22, I‑20, I‑18 and A‑6).
(viii) He was
not related to the Payor's sole shareholder.
(ix) He
received all of his work‑related instructions (the "what",
"where" and "when") from Claude St‑Onge.
[11]
I point out
that it is very difficult for me to assign any probative value to Mr. Savard's
testimony given that not only was his testimony generally vague and unspecific,
it was contradicted on a number of points by the documentary evidence or by
other statements or testimonies.
[12]
The
testimony of Albert Ouellet (brother of the Payor's sole shareholder) may be
summarized as follows:
(i) He was hired by
Claude St‑Onge.
(ii) He was employed by
the Payor during the relevant periods (from June 23 to October 3,
2003) to purchase woodlots for the Payor. However, on October 16, 2003,
June 3, 2008, December 12, 2007, and October 6, 2007, Mr. Ouellet
stated that he had been hired by the Payor as a logger (see Exhibits I‑10,
I‑11, I‑12 and I‑13).
(iii) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week
(10 hours a day from Monday to Friday).
(iv) He was paid his
wages every week. The first cheques drawn by Payor to the order of Mr. Ouellet
were returned for insufficient funds. After that, he received his wages in the
form of cheques that he endorsed on the spot. He was then given cash. I note
that the cheques from the Payor drawn to the order of Mr. Ouellet (see
Exhibit I‑14) give no indication that the first cheques were
deposited at a bank and that they were returned for insufficient funds. I
emphasize that Exhibit A‑11, filed in evidence by Mr. Ouellet
to show that the Payor had made a not‑sufficient‑funds cheque out
to him, in no way shows that the not‑sufficient‑funds cheques in
question were drawn by the Payor. Last, I emphasize in this regard that
Mr. Ouellet previously stated that he had cashed the cheques himself (see
Exhibit I‑13), that he had deposited the cheques at the Caisse
populaire de Kedgwick (see Exhibit I‑10, question 7) and that
the Payor did not cash the cheque for him and did not pay him in cash
afterwards (see Exhibit I‑10, question 8).
(v) Every morning, he
went to the Payor's head office for his instructions from Claude St‑Onge.
I note that Ms. Légaré (who testified that she was permanently employed at
the Payor's head office at the time) told Ms. Boudreault that she had
never seen Mr. Ouellet work at the office.
(vi) He received all of
his work‑related instructions (the "what", "where"
and "when") from Claude St‑Onge. However, he stated previously
(see Exhibit I‑10, question 12) that his brother had been the
one who managed the everyday operations and made the decisions.
[13]
I point out that I assigned
little probative value to Mr. Ouellet's testimony. Indeed, by making
statements that are vague, ambiguous, unverifiable, and contradicted by his
previous statements, the documentary evidence and other testimonies, Mr. Ouellet
surely cannot have hoped to satisfy me that he truly worked for the Payor
during the relevant periods. Mr. Ouellet failed to call as witnesses the
persons he contacted to purchase their woodlots, whereas he could have done so.
The fact that he did not leads me to conclude that the evidence of the
witnesses in question would have been unfavourable to him. Mr. Ouellet's
explanations for his contradictory statements have not satisfied me that the
Payor forced him to make false representations. In fact, he felt threatened at
the time. Since Mr. Ouellet's testimony in this regard was more than
simply vague and unspecific, I did not accept it. Indeed, Mr. Ouellet did
not identify the person who uttered these threats. He did not provide any
specifics as to the nature of these alleged threats.
[14]
The testimony of Donald
St‑Onge (cousin of Claude St‑Onge) may be summarized as follows:
(i) He was hired by
Claude St‑Onge;
(ii) During the
relevant period (in this case, from July 7 to October 10, 2003), he
operated a skidder belonging to the Payor and felled trees with his chainsaw.
Donald St‑Onge added that he had also cut firewood. On June 4, 2008,
when asked to describe his tasks, Donald St‑Onge answered [translation] "I was a chainsaw
logger"(see Exhibit I‑20). I also note that Charles Édouard
Albert testified that none of the Appellants had told him that they had cut
firewood.
(iii) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week
(10 hours a day from Monday to Friday).
(iv) He was paid his
wages each week in the form of cheques that he cashed at the Caisse populaire
de Kedgwick. Donald St‑Onge's testimony in this regard is consistent
with his previous statements (see Exhibits I‑19 and I‑20). I
note that, on June 4, 2008, Donald St‑Onge stated that his
wages had been given to him by [translation]
"Claude St‑Onge, at the Kedgwick office, every Friday" (see
Exhibit I‑20). However, on December 13, 2007, Donald St‑Onge
stated in this regard that his wages had been given to him in the woods by
Claude St‑Onge every Friday (see Exhibit I‑19,
question 18). Last, I emphasize that the cheques drawn by the Payor to the
order of Donald St‑Onge (see Exhibit I‑21) in no way
indicate that they were cashed at the Caisse populaire de Kedgwick. However, I
note that all of the cheques were endorsed by Donald St‑Onge.
(v) He received all of his work‑related instructions (the
"what", "where" and "when") from Claude St‑Onge,
and those instructions were relayed to him by Mr. Lévesque when they
worked together.
(vi) His co‑workers
were Mr. Lévesque and Mr. Pelletier. On cross‑examination,
Donald St‑Onge stated that he had seen Arsène Thibault repair the Payor's
machine in the woods. However, on December 13, 2007, Donald St‑Onge
stated that his co‑workers had been [translation]
"Ti‑boy Lévesque (bulldozer operator), Gaston Lévesque (skidder and
chainsaw) and Richard (Bebé) Kedgwick (loader)" (see Exhibit I‑19,
question 9). I note that Ti‑Boy Lévesque and Richard (Bebé) Kedgwick
did not work for the Payor in 2003.
(vii) Donald St‑Onge
was not related to the Payor's sole shareholder.
(viii) His Record of
Employment for 2003 was given to him at the Payor's head office by
Ms. Légaré. However, on December 13, Mr. St‑Onge stated
that he went to pick up his Record of Employment at Claude St‑Onge's home
(see Exhibit I‑19, question 21).
[15]
I point out that I assigned
little probative value to Donald St‑Onge's testimony. Indeed, by making
statements that are vague, ambiguous, contradictory, and contradicted by the
documentary evidence and other testimonies, Mr. Donald St‑Onge
surely cannot have hoped to satisfy me that he truly worked for the Payor
during the relevant periods. Mr. Donald St‑Onge could have called,
among others, Claude St‑Onge and the owners of the land where he worked
during the relevant periods as witnesses, and he was in a position to do so. The
fact that he did not leads me to conclude that the evidence of the witnesses in
question would have been unfavourable to him.
[16]
The testimony of Camil
Perron may be summarized as follows:
(i) He was hired by
Camille Ouellet.
(ii) He was hired by
the Payor as a logger.
(iii) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week
(10 hours a day, from Monday to Friday). I note that, on June 3,
2008, Mr. Perron stated that in the fall, despite the fact that he did not
work for 10 hours a day (given the number of daylight hours during that
time), he was paid on a basis of 10 hours a day (see Exhibit I‑9).
(iv) He was paid his
wages on the Friday of each week. He received his wages in the woods from
Claude St‑Onge in person, in the form of cheques that he endorsed on the
spot. Mr. St‑Onge then gave him cash. I emphasize that, on
December 13, 2007, Mr. Perron stated that he had received his wages
on the Friday of each week from Claude St‑Onge and Camille Ouellet in
person, also in the woods (Exhibit I‑8, question 18).
(v) He was not related
to the Payor's sole shareholder.
(vi) He received all of
his work‑related instructions (the "what", "where"
and "when") from Claude St‑Onge. I note that, on June 3,
2008, Mr. Perron stated that his work had been supervised [translation] "now and then"
by Camille Ouellet and that Mr. Ouellet had also determined his tasks and
work schedule (Exhibit I‑9).
(vii) He cut an average
of a [translation] "vanload"
of wood a day. However, on June 3, 2008, he stated that he had cut an
average of two [translation] "vanloads"
of wood a day.
(viii) Over the period
from August 2003 to October 2003, his co‑worker was Gaston
Lévesque and, during November and December of that same year, his co‑worker
was Yvon Savard. However, on June 3, 2008, he stated that Yvon Savard had collected
the wood he had cut in September, whereas the payroll journal shows clearly
that Mr. Savard had not worked in September 2003.
(ix) He paid for the
expenses related to the chain saw rental. I stress that he filed evidence substantiating
his statement to that effect.
(x) He received his
Record of Employment by mail. However, on December 13, 2007, he stated
that Martine Léonard had given him his Record of Employment at the Payor's head
office (Exhibit I‑8).
[17]
I point out that I assigned
little probative value to Mr. Perron's testimony. Indeed, by making
statements that are vague, ambiguous, contradictory, and contradicted, he
surely cannot have hoped to satisfy me that he truly worked for the Payor
during the relevant periods. Mr. Perron explained that his contradictory
statements result from his illiteracy. I emphasize that neither did
Mr. Perron inform Mr. Melançon and Violet Arsenault of his illiteracy
on June 3, 2008, nor did he say as much to the investigators on December 13,
2007. I also note that, before Mr. Perron signed each statement
(Exhibits I‑8 and I‑9), the investigators read out the answers
they had received from Mr. Perron, and those answers were co‑signed
by one of the investigators. Mr. Perron was able to read his name typed on
Exhibit A‑10, which he filed in evidence. Last, Mr. Perron
could have called as witnesses the owners of the lots where he worked during
the relevant periods. Those persons could have confirmed that they granted the
Payor stumpage rights during the relevant periods. Mr. Perron could also
have called Claude St‑Onge and Camille Ouellet as witnesses. He did not
do so. The fact that he did not leads me to conclude that the evidence of the
witnesses in question would have been unfavourable to him.
[18]
The testimony of Camille
Pelletier may be summarized as follows:
(i) He was hired by
Camille Ouellet.
(ii) He was hired by
the Payor as the operator of a power ram, belonging to the Payor, to make roads
on the woodlots. In this regard, I stress that Charles Édouard Albert testified
that Mr. Pelletier refused to answer his questions at the meeting on
December 13, 2007, on the pretext that he had not worked for Camille
Ouellet in 2003. Moreover, I note in this regard that, some time later,
Mr. Pelletier signed a solemn affirmation in the presence of Claire Bossé
(Exhibit I‑18), which reads as follows:
[translation]
. . .
that I worked as follows:
For 22/4/02–26/7/02 — It is possible that I worked for Alain Maltais;
I am not saying that I did not.
For 2003
Worked from April 28 to May 9/03 — Clôtures St‑Pierre.
As I recall, I continued with Jacques St‑Pierre right after
May 9/03. I did not stop before December/03. For the period from
June 2, 2003, to September 26, 2003, Jacques sent me to work in the
wood with Jacques St‑Pierre's dozer; I always received my wages from
Jacques St‑Pierre, never received wages from Camil Ouelette in 2003. If I
did receive any, it would have been in 2002.
(iii) In the course of
his work, he saw Donald St‑Onge and Gaston Lévesque. However, on
October 24, 2008, he stated that he was unable to identify his co‑workers.
(iv) He was
paid at a rate of $15 an hour on the basis of a 50‑hour week.
(v) His wages were paid
to him each week in the form of cheques that he endorsed on the spot. Once the
cheque was endorsed, he was given cash.
(vi) He received all of
his work‑related instructions (the "what", "where"
and "when") from Claude St‑Onge.
[19]
I note that I assigned
little probative value to Mr. Pelletier's testimony, given that his
statements were contradictory, to say the least.
[20]
The testimony of Sylvie
Malenfant (widow of Arsène Thibault) may be summarized as follows:
(i) Arsène Thibault
died in 2009.
(ii) The answers on the
questionnaire were written by her but dictated by Arsène Thibault (shortly
before he died), since he was gravely ill at the time.
[21]
I note that, at question 8
of the questionnaire filed in evidence as Exhibit A‑6,
Mr. Thibault stated that Albert Ouellet had been working at the same time
as he had been working as a logger. I note that Albert Ouellet testified that
he had never performed service as a logger for the Payor. I also note that
Arsène Thibault had also stated a number of times that, on December 12,
2007, Albert Ouellet had been one of the Payor's loggers and that they had
worked for the Payor at the same time (see Exhibit I‑22,
questions 5 and 6).
[22]
I note that Arsène
Thibault stated that, for his first weeks of employment, he had received his
wages in the form of cheques that ended up being returned for insufficient
funds (see question 19 of Exhibit I‑22 and question 22(b)
of Exhibit A‑6). However, the 14 cheques drawn by the Payor to
the order of Mr. Thibault, filed in evidence as Exhibit I‑23,
do not in any way indicate that they were deposited at the bank and returned
for insufficient funds. These cheques were, however, endorsed by
Mr. Thibault. Last, I note that the first cheque drawn by the Payor to the
order of Mr. Thibault, on July 4, 2003, was not only endorsed by
Mr. Thibault but was also signed by him for the Payor.
[23]
I further note that
Mr. Thibault stated having occasionally worked Saturdays (see
question 17(a) of Exhibit A‑6). Regardless, the Payor's payroll
journal (Exhibit A‑27) indicates that Mr. Thibault did not work
for the Payor on Saturdays during the relevant periods.
[24]
In addition,
Mr. Malenfant filed in evidence, as Exhibit A‑7, a bank
statement of Mr. Thibault which she claims shows that her spouse truly had
worked during the relevant period because significant sums had been credited to
their account.
[25]
Carole Thibault (daughter
of the late Arsène Thibault) essentially testified as follows:
(i) During the relevant
periods, she lived with her father and was aware that her father had worked,
during this period, for about 10 hours a day for Claude St‑Onge.
However, she stated that she did not know the nature of the service that her
father had then performed for Claude St‑Onge.
(ii) However, she once saw
her father work at Mr. St‑Onge's garage.
[26]
The Appellant's
evidence has failed to satisfy me that Mr. Thibault truly worked for the
Payor during the relevant periods. The contradictions identified above are too
significant.
[27]
The testimony of
Martine Léonard may be summarized as follows:
(i) She was hired by
Claude St‑Onge and Camille Ouellet.
(ii) She was hired
primarily as a secretary. As such, she prepared the cheques drawn by the Payor
and the workers' Records of Employment. She also bargained over lots for the
Payor. In addition, the Payor had given her the responsibility of doing the
janitorial work at its head office. She also did the bookkeeping of the Payor's
payroll journal. Last, she testified that she had painted the Payor's premises.
I emphasize in this regard that, on December 11, 2007, she gave the
following answer to the question [translation]
"What kind of work did you do? Be specific.": [translation] "Bookkeeping, bank deposits
at Kedgwick, went to pick up cheques at Bathhurst, Parent at St‑Quentin"
(see Exhibit I‑15, question 6). I also note that, on
June 5, 2008, she stated that her tasks were the following: "To do
wages, enter people (on the TD1s) of the foreman, Claude St‑Onge. I
prepared envelopes of cash for the employees' wages. To take the cheques to the
mills. I kept the invoices and filed them. I painted. I would telephone the mills
to check the price of wood. . . ." (see Exhibit I‑8).
I also note that Ms. Boudreault testified, in response to the question
regarding the nature of her tasks, that Ms. Léonard had never told her
(during the telephone conversation on September 5, 2008) about having done
janitorial work, painting, bargaining over lots or bookkeeping.
(ii) She prepared all
of the cheques drawn by the Payor to the order of its employees and dated
before the start of her employment (in this case, June 23, 2003) and the
Records of Employment of the Payor's employees dated before June 23, 2003,
which were thus drawn retroactively. I stress that this fact was never mentioned
to Ms. Boudreault during the telephone interview on September 5,
2008.
(iii) During the time of
her employment, she made the entries in the Payor's payroll journal for the
period before June 23, 2003. I emphasize that Ms. Léonard never
mentioned this fact to Ms. Boudreault when questioned on the subject
during the telephone interview on September 5, 2008.
(iv) At Claude St‑Onge's
request, she continued to work for the Payor for free after she was laid off. I
point out that this is not what Ms. Léonard told Ms. Boudreault
during the telephone interview of September 5, 2008. Instead, she told
Ms. Boudreault that Camille Ouellet was the one who had made that request
of her.
(v) She had gone to the
Caisse populaire de Kedgwick to have stamped the cheques drawn by the Payor to
the order of its employees in 2003, which had been endorsed by the Payor.
Ms. Léonard explained that those cheques were kept by the Payor as proof
of payment of its employees' wages. I emphasize that there is no evidence that
the cheques (drawn by the Payor in 2003 to the order of its employees), filed
in evidence, were stamped by the Caisse populaire de Kedgwick. In any case, I
would have very much liked to have received one good reason from
Ms. Léonard for having the cheques stamped by the Caisse.
(vi) She went to get
cash at the Caisse populaire de Kedgwick. I note that the evidence showed that,
in 2003, the only persons authorized to make withdrawals from the Payor's bank
account were Camille Ouellet and Alain Maltais. It would have been very
interesting to hear the testimonies of the employees of the Caisse populaire de
Kedgwick on this subject.
(vii) Her first paycheque
was returned for insufficient funds. However, there is no evidence that
Ms. Léonard's first paycheque, filed in evidence as Exhibit I‑26,
was a not‑sufficient‑funds cheque.
(viii) She went, among
other places, to the offices of the Forestry Syndicate to pick up cheques drawn
by the Syndicate to the order of the Payor as payment for wood sold by the
Payor. I note that Ms. Boudreault testified in this regard that she went
to verify Ms. Léonard's statement to this effect with the Forestry
Syndicate and that Jim Couture (head of accounts payable for the Forestry
Syndicate) had told her that he did not know Ms. Léonard. Once again, it
would have been very helpful if Ms. Léonard had called the relevant
witnesses to corroborate her statements in this regard and thus establish her
credibility.
(ix) She worked alone at
the Payor's offices. However, Ms. Léonard testified that Sylvette St‑Onge
had occasionally worked at the Payor's offices. I note that, on
September 5, 2008, Ms. Léonard failed to mention this fact to
Ms. Boudreault during the telephone interview. I note that Mr. Albert
Ouellet also told Ms. Boudreault that he had spent 80 percent of his
work hours at the Payor's offices.
[28]
I point out that it is
very difficult for me to assign any probative value to Ms. Léonard's
testimony. Indeed, by making statements that are vague, ambiguous, unverifiable,
contradictory, and contradicted by the documentary evidence and other credible
testimonies, she surely cannot have hoped to satisfy me that she truly worked
for the Payor during the relevant periods.
[29]
The testimony of Alain
Cyr may be summarized as follows:
(i) Claude St‑Onge
hired him.
(ii) He worked during
the relevant periods as the operator of a power ram belonging to the Payor.
Mr. St‑Onge asked him to make forest trails on a number of woodlots.
I emphasize that Mr. Cyr's testimony regarding the sites where he
allegedly worked and the number of days during which he allegedly worked was vague,
unspecific and unverifiable, to say the least. Mr. Cyr could have called
Mr. Onge, or even the owners of those sites, to testify. He did not do so.
From that, I infer that these testimonies would have been unfavourable to him.
(iii) Mr. Arsenault
repaired the power ram that Mr. Cyr had operated, at the sites where
Mr. Cyr worked. He also saw Mr. Lévesque working at one of the sites
where he worked.
(iv) He was paid at a
rate of $15 an hour on the basis of a 50‑hour week.
(v) He was paid his
wages each week. He received his pay in the form of cheques that he endorsed on
the spot. He was then given cash.
[30]
I accept from Charles
Édouard Albert's testimony that he was present at the meeting during which
Andrea Boulay (an alleged employee of the Payor in 2003) had admitted that
Claude St‑Onge had given her a Record of Employment, even though she had
not worked for the Payor, and signed an affirmation to that effect
(Exhibit I‑25). Mr. Albert also testified that Guy Côté
(another alleged employee of the Payor) had told him that he had not performed
services for the Payor but had paid a sum of money to obtain a false Record of
Employment in order to apply for Employment Insurance benefits.
Analysis and conclusion
[31]
The Appellants had the
burden of demonstrating that they truly worked for the Payor during the
relevant periods. The bulk of the evidence submitted by the Appellants rested,
for the most part, on their testimonies. As stated above, the Appellants
(except for Mr. Cyr) could not hope to satisfy me that they had truly
worked for the Payor by making statements that were generally vague,
unspecific, unverifiable, contradictory, and contradicted on many points by the
documentary evidence and by other credible testimonies.
[32]
I would add that the Appellants
failed to call certain persons as witnesses (for example, Claude St‑Onge,
Camil Ouellet, the owners of the woodlots on which they allegedly worked or
even the independent truck drivers who allegedly transported the wood to the
mills), whereas they could have done so. The fact that they did not leads me to
conclude that the evidence of the witnesses in question would have been unfavourable
to them.
[33]
Last, the following
elements also suggest to me that the Appellants did not work for the Payor
during the relevant periods:
(i) First, I find it
implausible that all of the employees received the same earnings in 2003,
regardless of the nature of their tasks and their years of experience.
(ii) I find it equally implausible
that, in 2003, the Payor's employees had an absenteeism rate of zero.
(iii) I have a very hard
time understanding how the Payor's employees could have worked for 10 hours
a day in November and December 2003, given the number of daylight hours during
that time of year.
(iv) All of the Appellants
testified that they were supervised by Claude St‑Onge. Who, then, was
supervising the Appellants outside the period from June 23 to
October 3, 2003? I note that Claude St‑Onge's period of employment
was from June 23 to October 3, 2003.
(v) Mr. Savard (a
skidder operator) was laid off by the Payor on May 31, 2003, for lack of
work. However, shortly after Mr. Savard was laid off, the Payor hired a
number of other skidder operators (see Exhibits I‑27 and I‑28).
(vi) Mr. Savard
allegedly began working for the Payor on April 13, 2003, as a skidder
operator. I find it implausible that Mr. Savard gathered up logs during
the period from April 19 to May 31, 2003, since the Payor had
employed no loggers before and during this time.
(vii) From
February 3 to February 23, 2003, no workers were on the payroll, but
the Payor had sales totalling $52,101 during that time. From April 11 to May 30,
2003, only one worker was on the Payor's payroll, and yet the Payor had wood sales
totalling $170,087 during that time.
(ix) The Payor
terminated Martine Léonard's employment for lack of work, whereas, according to
the payroll of the Payor, it still had 14 employees. Therefore, after
Ms. Léonard was laid off, who performed the numerous tasks allegedly given
to her?
(x) The journal entries
and the numerical sequence of the cheques drawn by the Payor to the order of the
employees (same handwriting with the same pen) suggest to me that the payroll journal
was filled out retroactively and all at once to cover up the Payor's scheme.
(xi) The evidence showed
that, in point of fact, the Appellants had been paid in cash. Martine Léonard
explained that the Payor had drawn cheques to the order of its employees (who
endorsed those cheques on the spot) for the sole purpose of having proof of
payment of the earnings paid to its employees. In my opinion, this very complex
method of paying wages leads me to believe that it was instead intended to
serve as a cover‑up for the Payor's scheme. A simple receipt from each
employee to acknowledge having received the wages would have provided
sufficient proof of payment.
[34]
Mr. Saindon
provided an explanation for his clients' contradictory statements: his clients had
been unable to reread their written statements (their answers which had been
taken down in writing by CRA or Service Canada representatives) since its
clients were, for all intents and purposes, illiterate. His clients had also
been so upset by the fact that they had been called to and questioned on the
premises of the Royal Canadian Mounted Police ("RCMP") that they were
not truly clear‑headed when answering the questions of the CRA or Service
Canada representatives. In this respect, I note that only Camil Perron
testified that he was illiterate. I emphasize that Mr. Perron has failed
to satisfy me of his condition, given that he was able to identify his name
(printed) on the document filed in evidence as Exhibit A‑10.
Furthermore, Charles‑Albert Édouard, Annette Melançon, Nathalie Bujold
and Ronald Roy, whose credibility and good faith cannot be doubted, testified
at great length on how they conducted their interviews with the Appellants. In
that regard, they satisfied me that the written answers on the questionnaires
filed in evidence reflected the verbal answers given by the Appellants
concerned during the interviews, especially since the Appellants had the
opportunity to correct their verbal answers when the questions and answers were
read aloud by the CRA or Service Canada representatives before the Appellants
signed their statements. What is more, the testimonies of Mr. Albert,
Ms. Melançon, Ms. Bujold and Mr. Roy satisfied me that in no way
did they intimidate or try to intimidate the Appellants by calling them to the
RCMP premises at St‑Quentin and Campbellton. They explained, in this
regard, that the Appellants had been called to the RCMP premises simply because
the CRA had no premises in those towns and they had been unable to find other
suitable, available premises in those towns. I do not see how the mere fact of
having been interviewed on those premises could upset an appellant to the point
of losing the ability to think clearly, especially since there were no RCMP
officers present during these interviews. I would add that the Appellants
represented by Mr. Saindon did not strike me as persons who are easily
intimidated.
[35]
For all of these reasons,
the appeals are dismissed.
Signed at Ottawa, Canada, on this 25th day of
October 2011.
"Paul Bédard"
Translation
certified true
on this 14th day
of November 2011.
Sarah Burns,
Translator
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