Citation: 2008TCC34
Date: 20080108
Docket: 2006-3006(EI)
2006-3008(CPP)
BETWEEN:
SUKHWINDER KAUR DADWAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Agent for the Appellant: Pavan Jashi
Counsel for the Respondent: Sara Fairbridge
AMENDED REASONS FOR JUDGMENT
(Delivered
orally from the Bench on October 19, 2007,
at Vancouver, British Columbia.)
McArthur J.
[1] This appeal is from a decision
of the Minister of National Revenue that the Appellant was not engaged under a
contract of service within the meaning of paragraph 5(1)(a) of the Employment
Insurance Act, and comparable legislation under the Canada Pension Plan.
[2] The Appellant is a
grandmother who immigrated to Canada
from India in 2002, having been sponsored
by her daughter. She worked on a berry and vegetable farm from June to
November, 2002 (“period of employment”). She was given a Record of Employment by
RHD Farm Labour Contractor Ltd. (the “payor”) indicating that she had worked 1,080
insurable hours and had the amount of $8,985.84 in insurable earnings during
the period of employment. The Minister of National Revenue originally determined
that she was employed in insurable employment with the payor for only 948
insurable hours, with earnings of $7,885.84 from June 17, 2002 to November 2, 2002.
She appealed that ruling and in response, the Minister determined that the Appellant
was not employed by the payor.
[3] The Minister relied on the
following assumptions of fact:
a) the
Payor was a farm labour contractor who provided labourers to Bisset Farms of
Ladner and BC & Western Country Farms of Richmond;
b) the
Payor issued the Appellant a record of employment (“ROE”)
showing a first date worked of June 17, 2002 and last day worked of November 2,
2002;
c) the
Appellant failed to respond to requests for information dated March 16,
2004 and June 16, 2005;
d) the
Appellant’s alleged duties were picking strawberries, raspberries, and blueberries;
e) the
ROE alleged the Appellant had 1,080 insurable hours with insurable earnings of
$8,985.84;
f) the Appellant
ROE included hours worked by the Appellant’s husband;
g) the Appellant
was not paid by the hour;
h) the Appellant
paid money back to the Payor in exchange for her ROE;
i) the
Appellant has provided inconsistent and contradictory information at each level
of review;
j) the
Payor has provided inconsistent and contradictory information at each level of
review.
k) the
Appellant did not work the number of hours indicated on her ROE;
(l) the
Appellant did not earn the amount of money indicated on her ROE; and
m) the
Appellant's ROE is false.
Unfortunately, the payor was
not called as a witness in these appeals, but the Appellant, of course, did
give evidence through a Punjabi interpreter.
[4] In her Notice of Appeal, the
Appellant stated in part:
I worked for RHD Farm Labour Contractor Limited
from June 17th, '02 to November 2nd, '02 as a farm worker
on various jobs which the employer asked me to do. I complied with the terms
and conditions laid by this employer throughout this period and in the end was
given a Record of Employment indicating 1,080 insurable hours and $8,985
insurable earnings.
I'm a victim of the prevalent practices in the
agricultural industry, especially in the hand-harvested crops. I have been
abused and exploited and harassed by all the stakeholders in this system and in
the end I am the one who has been penalized in spite of the fact that I worked
hard and earned all the insurable hours and earnings. I should not be penalized
for the shoddy recordkeeping of the employer.
This is a difficult case in
that I believe the Appellant is basically honest, and that she was exploited by
unscrupulous employers.
[5] Ravi Sandhu, an employment
insurance investigator in 2002, was an impressive witness on behalf of the Respondent.
In brief, he stated that he believed the answers given by the Appellant in his interview
with her on January 24, 2003, and that such answers were accurate. The
transcript of that interview is filed as Exhibit R-1. He further stated that
the Appellant was refreshingly honest, a quality not often found in those he
interviewed.
[6] I accept Mr. Sandhu's
evidence to the effect that the Record of Employment, hours of work, and hourly
rate of pay are most probably a sham, which word, I believe, is taken from the
word "shameful", which is appropriate to the present circumstances. As
stated, the Appellant's evidence by and large is credible.
[7] I find that the Appellant
was employed in insurable employment and she worked very hard and long hours. In
applying the customary tests found in the Federal Court of Appeal decision of Wiebe
Door Services Ltd. v. Minister of National Revenue,
and approved by the
Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada
Inc., I have
determined the following
(i) The payor had complete
control of the worker, the Appellant.
(ii) The
payor owned all of the tools, including driving the Appellant, with others, to
and from work in a van when he, at his complete discretion, decided to.
(iii) With
respect to profit and loss, the payor controlled everything, including how much
she received, and we will never be certain what her hourly rate worked out to. She
was paid according to the pounds of product she picked, for instance, $.32 a
pound for blueberries in 2002.
(iv) Sagaz
emphasizes that the trial judge attempt to answer the question, "Whose
business was it?". The answer, of course, without a shadow of a doubt, is
it was not her business. It was the business of the payor, and to deny the
appellant employment insurance and CPP benefits because of the schemes her
superiors may have concocted is not justifiable.
[8] In
an effort to reflect the reality of her situation, and after considering all of
the evidence, and in particular that of Mr. Sandhu, whose informed judgment I
accept, the appeal is allowed. The Appellant was employed in insurable
employment with the payor during the period of employment and she had worked 948
insurable hours with income earned of $7,885.84. This is arrived at in
acceptance of what I believe was Mr. Sandhu's recommendation and, in an
attempt
to sort out the fiction from the truth, what is the economic reality of the
situation.
These
Reasons for Judgment are issued in substitution for the Reasons for Judgment
issued on January 8, 2008.
Signed at Ottawa, Canada,
this 21st day of January, 2008.
“C.H. McArthur”
Email this Content