Citation: 2010 TCC 377
Date: July 14, 2010
Docket: 2009-942(EI)
BETWEEN:
LUBNA ANWAR,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Weisman, D.J.
[1]
The Respondent Minister
of National Revenue (the “Minister”) has denied the Appellant Lubna Anwar
(“Anwar”) unemployment benefits on unusual grounds. His investigators believe
there was a fraudulent conspiracy between the Appellant, her husband Siraj
Ghani (“Ghani”), and his employer A-1 Emission Centre Inc. (“A-1”), whereby A-1
agreed to put the Appellant’s name on many of her husband’s paycheques. This
enabled him to claim that he earned only $80.00 per week performing emission
tests on trucks, which was just less than the maximum amount he was permitted
while in receipt of parental leave benefits under the Employment Insurance
Act (the “Act”).
His wife, for her part, also claimed disability, maternity and parental leave
benefits under the same Act, even though the Minister alleges that she
had no working relationship with A-1.
[2]
Since the Appellant
bears the burden of proof in these matters, Anwar must establish that she was
indeed employed by A-1 during the period under review, which is July 11, 2005
to April 15, 2006.
[3]
She claims that her
duties at A-1 were threefold: she was responsible for telephoning automobile
repair shops to persuade them to have their trucks tested by A-1’s mobile unit,
which was operated by her husband; if successful, she booked appointments for
the tests and issued the resultant certificates and invoices; and finally, she
purportedly did all the requisite data entries regarding the tests done by her
husband.
[4]
It is her contention
that she was so successful in her sales endeavours that the number of emission
tests referred to A-1 rose from approximately 30 per month when she began, to
some 200 per month, for a total of 1,541 by the end of the period under review.
In support of this, she filed a computer print-out of A-1’s invoices for truck
emission tests done during this period. When asked how such an internal
business record came into her possession, she explained without hesitation that
she was in charge of data entry for the company and naturally had access to all
its records.
[5]
She also filed five
identical testimonial letters, which she admits she prepared, from various auto
repair shops, all of which purport to corroborate that it was indeed her
telephone calls that were instrumental in the signatories having the emission
inspections on their trucks done by A-1.
[6]
Unfortunately for the
Appellant, all five gave viva voce evidence on behalf of the Minister.
They all testified that while they either knew of, or had worked with the
Appellant’s husband Ghani, none knew the Appellant. Three of the five
acknowledged signing the letter, not because they knew it to be true, but
because either Ghani or one of their workers assured them that the female voice
on the telephone at A-1 was that of the Appellant. One of the three said that a
woman, who he believes was Ghani’s wife, came to his office on two occasions to
pick up cheques for A-1. A fourth denied ever signing the letter, but
identified the signature as that of one of his workers who had access to the
company stamp. The fifth witness testified that he outright refused to sign the
document when it was presented to him by Ghani saying: “I can’t sign it because
it is not true”. He was unable to recognize the signature on the letter that
purported to be his. Ironically, he also pointed out that his company never did
emission tests, or any other kind of work on trucks, in any event.
[7]
A sixth witness for the
Respondent Fazal Raja (“Raja”) was the Manager of Five Star Auto & Truck
Services (“Five Star”) whose business premises were located just two doors away
from those of A-1. Ghani worked for Five Star part‑time inspecting truck
emission controls for two years ending just before the period under review. The
relationship ended, according to Raja, when Ghani requested that his paycheques
be put in his wife’s name. When Raja told Ghani that he could not do that,
Ghani resigned and “went next door” to A-1. Raja further maintained that during
the nine month period under review, he was frequently at A‑1’s business
premises and in its offices “many times” but never saw the Appellant there.
Accordingly, when Ghani and his wife came to him some three or four months
prior to this trial and requested written acknowledgment that Anwar did indeed
work for A-1, he refused. He ended his testimony by addressing the following
dramatic accusation to the Appellant: “You know very well that you were not
there!”
[8]
Ghani was permitted to
earn $84.25 per week while collecting parental benefits under the Act.
He performed 1,541 tests over the relevant period, which means he was
purportedly doing the necessary testing and issuing the requisite inspection
certificates for approximately $1.88 each. At the same time, A-1 was quoting
the various repair shops $75.00-$80.00 per test. This tends to buttress the
Respondent’s allegation that a considerable part of Ghani’s remuneration was
being diverted to his wife.
[9]
When Ghani testified in
these proceedings, he said that Raja did not like him; that he withheld his
first two months pay because he considered him an apprentice; and that he
forced him to work past the last day of work recorded on his Record of
Employment by threatening to withhold his back pay. Ghani also predicted that
Raja would say that he was asked to put Ghani’s paycheques in his wife’s name,
which Ghani denies.
[10]
The Minister also
relies on unexplained discrepancies in the Appellant’s documentation. Some of
her pay stubs, which she apparently prepared, were incorrectly dated, and
reflect a level bi-weekly pay of $947.17, whereas the cheques themselves vary
in amount from $950.00, to $944.11, to $947.17; the number of inspection
certificates issued by Ghani in some months do not match either the numbers recorded
in A-1’s records or those on file with the Ministry of the Environment.
Further, the amounts reported by the Appellant as “Employment Income” on her
income tax returns do not match either those recorded by A-1, or those
reflected in her pay stubs. If the Appellant was indeed in charge of data entry
for A-1, one would expect the relevant entries and documentation concerning her
husband and herself to be more accurate.
[11]
When asked why she did
not call the various key witnesses who could have corroborated her story, like
her two employers at A-1, or its accountant who apparently recommended her for
the position in the first place, the Appellant said: “Why would I? They say
they are in collusion with us”. In the same vein, one would have thought that with
over 1,540 successful quotes to a limited cohort of auto repair shops over a
nine month period, she would have built up a relationship with some of them
sufficient that they could be corroborative witnesses on her behalf. Her
unlikely response was that she never told any of them her name.
[12]
Credibility is very
much in issue in these proceedings. Some seven months elapsed between the first
day of this trial, when the importance of the missing witnesses should have
become apparent to the Appellant, and the ultimate trial date. She had ample
opportunity to call anyone who knew she worked at A-1 during the period under
review, but failed to do so. Failure of key witnesses to testify without
explanation allows the court to draw the adverse inference that their testimony
would not have been helpful to the Appellant’s case. I draw this
adverse inference. Moreover, if there were corroborative witnesses, there would
be no need for her to produce questionable testimonial letters that cast doubt
upon her credibility, including one that was forged by persons unknown. Further
damage was done to the Appellant's cause by the credible testimony of Ghani’s
prior employer Raja that the working relationship ended when he refused to put
the Appellant’s name on Ghani's pay cheques.
[13]
In this matter, the
Appellant contributed to her own misfortune: she could have benefited from
legal representation; her cross-examination of the Minister's witness, the
obstreperous Major Fraud Officer Henry Dutkowsky, was redundant and
ineffectual; the testimonial letters she submitted to support her position had
the opposite effect; and, as aforesaid, she failed to call key witnesses on her
behalf.
[14]
I have investigated all
the facts with the parties and the witnesses called on their behalf to testify
under oath for the first time, and although I found new facts, such as the
forged testimonial letter, they were not helpful to the Appellant. I also found
nothing to indicate that the facts inferred or relied upon by the Minister were
unreal, or were incorrectly assessed or understood.
[15]
The Appellant has
accordingly failed to discharge the onus of demolishing the assumptions set out
in paragraphs 7 and 8 of the Minister’s Reply to her Notice of Appeal. The
Minister’s determinations that there was no contract of service between the
Appellant and A-1 during the period under review, and that they were not
dealing with each other at arm's length in any event, are accordingly
objectively reasonable.
[16]
In the result the
appeal will be dismissed and the decision of the Minister confirmed.
Signed at Toronto, Canada, this 14th day of July 2010.
"N. Weisman"
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