Date:
20020502
Dockets:
2001-3945-EI,
2001-3946-CPP
BETWEEN:
1084767
ONTARIO INC. OPERATING AS CELLULAND,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Reasons
for Judgment
Bowman,
A.C.J.
[1]
These appeals under the Canada Pension Plan and the
Employment Insurance Act are from decisions of the
Minister of National Revenue that Cecilia Sia-Lan Tong was
employed in insurable employment for the purposes of the
Employment Insurance Act and in pensionable employment for
the purposes of the Canada Pension Plan.
[2]
Mr. Jeff Wong is the owner and president of the appellant.
He represented the appellant at trial and was the only witness
for the appellant.
[3]
In the period in question the appellant carried on the business
in Scarborough of selling cellular telephones and
accessories.
[4]
Ms. Tong was engaged by the appellant from November 2,
2000 to January 21, 2001 at which time Mr. Wong says he
dismissed her for what he described as "misconduct". He
says she accepted payment by means of a credit card that turned
out to be stolen.
[5]
Mr. Wong testified that Ms. Tong was engaged as an
outside commission agent, that she seldom came into the office,
that she had no fixed hours, that she used her own car to try to
sell cellular phones and that she paid her own expenses and thus
she only came into the office when she brought a customer in to
complete a deal and that she was able to complete deals outside
of the office and she was free to determine the prices. He said
she was paid by commission and he put in evidence a memorandum
which read as follows.
CELLULAND,
SCARBOROUGH LOCATION
TO: CECELIA
TONG - OUTSIDE SALES
DATE: NOV
2, 01
RE:
OUTSIDE SALES/COMPENSATION SCHEDULE
EFFECT NOV
2, 01 - OUTSIDE SALES COMMISSION
COMMISSION: $10.00 - UPGRADE
HARDWARE
$25.00 - NEW ACTIVATION
$25.00 - 2 INI ACTIVATION
BONUS: FIRST 10 ACT.
UNITS >
- $100.00
SECOND 10 ACT. UNITS (20
UNITS > )
- $200.00
THIRD 10 ACT. UNITS (30
UNITS > )
- $350.00
(ABOVE ACTIVATION: NEW CORE ACTIVATION, 2 INI, P.A.U.G. ACT.
EXCEPT R4U OR SELLING HARDWARE)
The
memorandum contained a handwritten notation:
Rec'd
by Cecilia Tong Nov. 2,01
[6]
Ms. Tong testified that she had never seen the memorandum.
She says she used her car only to drive to work, that her hours
were Monday to Wednesday, 10:00 a.m. to 6:30 p.m.,
Thursday and Friday from 10:00 a.m. to 7:00 p.m. and
Saturday 11:00 a.m. to 4:00 p.m., that she worked only in
the store and never visited the customers outside the store and
her rate of pay was $7.95 per hour.
[7]
This case requires no analysis of the decision of the Federal
Court of Appeal in Wiebe Door Services Ltd. v. M.N.R.,
87 DTC 5025, or the recent decision of the Supreme
Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries
Canada Inc., 2001 SCC 559, [2001] S.C.J.
No. 61, which substantially approved the four-in-one test
enunciated in Wiebe Door. If I accept Mr. Wong's
version Ms. Tong obviously was not an employee. If I accept
Ms. Tong's testimony she just as obviously was an
employee.
[8]
The evidence of the two witnesses is diametrically opposed. I
reserved judgment because I do not think findings of credibility
should be made lightly or, generally speaking, given in oral
judgments from the bench. The power and obligation that a trial
judge has to assess credibility is one of the heaviest
responsibilities that a judge has. It is a responsibility that
should be exercised with care and reflection because an adverse
finding of credibility implies that someone is lying under oath.
It is a power that should not be misused as an excuse for
expeditiously getting rid of a case. The responsibility that
rests on a trial judge to exercise extreme care in making
findings of credibility is particularly onerous when one
considers that a finding of credibility is virtually
unappealable.
[9]
In this case, I find the testimony of Ms. Tong more
reliable. The notion that a person is engaged by a cellular phone
store to drive around the city and sell phones, with no specified
area, no set hours and no particular instructions or guidelines
about the price to be charged strikes me as inherently
implausible. I accept Ms. Tong's evidence. It has a ring
of truth to it.
[10] The appeals
are dismissed.
Signed at
Ottawa, Canada, this 2nd day of May 2002.
A.C.J.COURT
FILE
NOS.:
2001-3945(EI), 2001-3946(CPP)
STYLE OF
CAUSE:
Between 1084767 Ontario Inc.
Operating
as Celluland and
The Minister of National Revenue
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
April 24, 2002
REASONS FOR
JUDGMENT BY: The Honourable D.G.H.
Bowman
Associate Chief Judge
DATE OF
JUDGMENT:
May 2, 2002
APPEARANCES:
Agent for
the
Appellant:
Jeff Wong
Counsel
for the
Respondent:
Catherine Letellier de St-Just
COUNSEL OF
RECORD:
For the
Appellant:
Name:
--
Firm:
--
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3945(EI)
2001-3946(CPP)
BETWEEN:
1084767
ONTARIO INC. OPERATING AS CELLULAND,
Appellant,
and
THE MINISTER
OF NATIONAL REVENUE,
Respondent.
Appeals
heard on April 24, 2002, at Toronto, Ontario, by
The
Honourable D.G.H. Bowman
Associate
Chief Judge
Appearances
Agent for
the
Appellant:
Jeff Wong
Counsel
for the
Respondent:
Catherine Letellier de St-Just
JUDGMENT
It is ordered that the appeals from the decisions made under the
Employment Insurance Act and the Canada Pension
Plan be dismissed and the decisions be confirmed.
Signed at
Ottawa, Canada, this 2nd day of May 2002.
A.C.J.
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