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Citation: 2005TCC24
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Date: 20050112
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DOCKETS: 2000-2354(EI); 2000-2357(EI);
2000-2356(EI); 2000-2359(EI); 2000-2319(EI); 2000-2366(EI);
2000-2370(EI); 2000-2322(EI); 2000-2321(EI); 2000-2367(EI);
2000-2368(EI); 2000-2362(EI); 2000-2363(EI); 2000-2360(EI);
2000-2365(EI); 2000-2329(EI); 2000-2335(EI); 2000-2323(EI);
2000-2342(EI); 2000-2334(EI);
and
DOCKETS: 2000-2324(EI); 2000-2325(EI);
2000-2328(EI); 2000-2144(EI); 2000-2653(EI); 2000-2332(EI).
BETWEEN:
VARINDER KANG, VARINDER JASSAL, HARBANS KANG, JASWINDER BASSI
, TARO BASSI, BAKHSHISH THANDI, GIAN S. THANDI,
JASWINDER CHEEMA, GURMAIL CHEEMA, AJMER K. GILL, RAVJIT GILL,
INDERJIT S. ATWAL, SHARINDER BAGRI, HARBANS K. PUREWAL,
PARMJIT REHAL, GURCHARAN JOHAL, PRABHJOT MINHAS, GURBACHAN GILL,
SUKHWINDER K. TOOT, DIDAR MEHAT,
Appellants,
and
BHAGWANT GREWAL, AMARJIT GREWAL, SUKHWINDER HUNDAL,
SHARDA JOSHI, GURMAIL SINGH GILL, JATINDER LIDHRAN,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] Each appellant appealed from a
decision issued by the Minister of National Revenue (the
"Minister") on February 23, 2000. Each decision was specific to
the individual named therein and dealt with a particular period
within 1996, with the exception of one appeal which involved a
few days of alleged employment in January, 1997.
[2] Johanna Russell and Selena Sit
appeared as counsel for the respondent. Darshen Narang, assisted
by Rajwinder Narang, acted as agent for the 20 appellants
listed in the first grouping in the above style of cause. The
appellants listed in the second grouping were either represented
by another agent or appeared in person.
[3] On February 21, 2003, the
Honourable Judge Little of this Court issued an Order - in
response to a Notice of Motion by counsel for the Respondent -
that the appeals named in said Notice of Motion be heard together
on common evidence pursuant to section 10 of the Tax Court of
Canada Rules of Procedure regarding appeals files under the
Employment Insurance Act (the "Act"). The appeals
were set down for hearing at Vancouver, British Columbia,
commencing November 3, 2003. The style of cause in the Order of
Judge Little commenced with the appellant Taro Bassi, followed by
Gurmail Cheema and Jaswinder Cheema and other appellants who were
represented by Darshen Narang, agent. The appellants who were
represented by other agents, or appeared in person, were also
subject to the Order of Judge Little concerning the common
evidence procedure and agreed that the appeals of the workers
represented by Darshen Narang would proceed first.
[4] I decided to discontinue the style
of cause utilized earlier in these proceedings and - instead -
have listed appellants in the order of their appearance before
me. During the period between the Order of Judge Little and the
commencement of the hearing, four appellants died, all of
whom had been represented by Darshen Narang. Narang advised the
Court he had received instructions from the lawful
representatives of the estate of each deceased appellant to
discontinue the particular appeal. During the course of the
hearing - occupying a total of 71 days - the appeals of some
appellants were dismissed for want of prosecution and/or
withdrawn with the result the parties named in the within style
of cause are those who had live issues before the Court at the
close of each party's case.
[5] Most of the appellants testified
in the Punjabi language and the questions and answers and other
aspects of the proceedings were interpreted by Russell Gill, a
certified court interpreter fluent in English and Punjabi. In
addition to interpreting oral testimony, Gill - on many occasions
- had to translate - contemporaneously - written documents and
transform the printed word into speech. Some of the documents -
contained in the numerous binders filed as exhibits - contain
hundreds of pages and there were numerous interviews attended by
the appellants during which answers were provided to specific
questions. The interpretation of the spoken word and translation
of the written material by Gill - sometimes under difficult
circumstances in the course of a lengthy proceeding - was
performed in an efficient manner and to such a high standard that
I am satisfied there was a full opportunity afforded to all
Punjabi-speaking appellants to present fully the relevant facts
pertaining to their case and to comprehend the nature and extent
of the proceedings. In addition, Darshen Narang, agent for the
first group of appellants, is fluent in spoken Punjabi and
English. Other agents or those appellants who chose to present
their own appeals were also capable of proceeding in English. On
occasion, Punjabi-speaking appellants testified in English but
Russell Gill was present in Court in order to assist from time to
time in interpreting certain words or phrases.
[6] Throughout the hundreds of
documents forming part of the material entered as exhibits in
these proceedings, including reports of interviews, transcripts,
Records of Employment (ROEs), T4 slips, pay statements, etc., the
names of some individuals have been spelled in different ways.
Punjabi is a syllable-based language and the conversion to the
English alphabet will sometimes produce a somewhat different
spelling of the same name, particularly if the person recording
the name has done so phonetically.
[7] The employer/payer in all cases
was SR Contractors Ltd. In the course of testimony and in some
documentation, this company is referred to as S & R,
SR Inc. and/or SR Contractors. However, during the testimony
of most of the workers, the employer was described as Bant or
Shindo and, less often, as Rana. Bant is Bant Suran, Surinder
(Shindo) Suran is his wife. Manjit Rana is the sister of Surinder
Suran and the brother-in-law of Bant Suran. In these reasons, all
parties agree there is only one employer regardless of the names
used by various appellants in their testimony. As a result, when
I refer to SRC, it is intended to identify the corporate employer
in the within appeals unless the context requires otherwise. In
many instances, appellants were not able to identify the work
places - usually farms - where they alleged services were
performed for the benefit of SRC, a labour contractor. As a
result, there are references to work locations such as
Khakh Farms, Mike's Farm, the Chinese Farm, Purewal Farms,
and so on. The ROE, a document issued by an employer following
layoff, is required prior to applying for unemployment benefits
pursuant to the Act. Many witnesses referred to a "weeks
paper" and whenever that term was used in testimony, it was
accepted that it pertained to an ROE.
[8] The names of the relevant
ministries, agencies and departments changed over the course of
time. For example, certain functions performed at Canada
Employment Centre - within Employment and Immigration Canada -
were undertaken by Human Resources Development Canada (HRDC) and
the role played by Revenue Canada in issuing determinations under
the Act was subsequently performed by Canada Customs and
Revenue Agency (CCRA). On June 30, 1996, the Employment
Insurance Act replaced the Unemployment Insurance Act
with certain provisions coming into force January 1, 1997,
January 5, 1997 and January 1, 1998. Some transitional
provisions are relevant to one or two of the within appeals and
will be referred to later. For the purposes of this judgment, the
term "Unemployment Insurance", commonly referred to as "UI", is
interchangeable with "Employment Insurance" or "EI" in relation
to benefits. The most significant features of the legislative
reform accomplished by the coming into force of the new
Act include the following:
- entitlement
to benefits based on hours worked instead of weeks worked, with
no minimum hourly requirement per week;
- a benefit
rate that takes into account the number of weeks of benefits
received in the past by a claimant;
- a reduction
in the maximum insurable earnings;
- a reduction
in the total period during which benefits could be received;
- higher
penalties for false statements.
[9] The effect of the new regime -
based on hours - placed a worker in the position of having to
accumulate sufficient time within a relatively short period in
order to qualify for benefits following the end of the farming
season. In the within appeals, although the benefits were still
calculated in terms of weeks for those workers who had begun
their employment prior to July 1, 1996 - pursuant to the
transitional provisions - a great deal of time and energy was
expended in relation to attempts by several appellants to
demonstrate not only that they had worked the hours - as alleged
- but also that they had been remunerated for those hours. The
latter is extremely important because the calculation of
"insurable earnings" under the Regulations pursuant to the
Act - for the most part - is based on the amount actually
paid by the employer to the worker for the performance of
services.
[10] The within appeals fell within three
categories. First, there were those cases where the Minister
decided a particular worker had worked a certain number of
insurable weeks within a specified period and had been
compensated for said work, which resulted in a finding that a
specific amount constituted insurable earnings. The position of
the appellants in this group was - basically - that they had
either worked more hours than recognized by the Minister or had
been paid additional amounts in wages in the form of cash or
otherwise that the Minister had refused to take into account when
establishing the amount of insurable earnings. Second, there were
several cases where the Minister had accepted that the named
worker had provided services to SRC - within the particular
period - but had not been satisfied the worker had been paid by
that employer. As a result, the Minister's decision concluded
that the said worker's insurable earnings were nil. Third, there
were some appeals in which the issue concerned whether an
appellant had performed services within a certain period, as
alleged, or at all. In those instances, the Minister issued a
decision stating there had been no insurable employment - by the
named party - with SRC. Overall, the Minister's position was that
the circumstances under which SRC carried on business during 1996
- as revealed by the documentation, including interviews with
appellants and others - clearly disclosed that SRC was
perpetrating a sham and had fabricated records to give the
appearance that certain persons had worked for the company and
had been paid a particular amount for their efforts when the
worker had either never worked the period - as alleged - or at
all, and had not been paid the amount - as alleged - or at
all.
[11] All decisions issued by the Minister
were pursuant to section 93 of the Act, based on paragraph
5(1)(a) of said Act. The equivalent provision in
the Unemployment Insurance Act - paragraph 3(1)(a)
- in effect until July 1, 1996, used the same definition of
employment. Paragraph 5(1)(a) of the Act,
reads:
(a) employment in Canada by one or more
employers, under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other
person and whether the earnings are calculated by time or by the
piece, or partly by time and partly by the piece, or
otherwise;
[12] Pursuant to subsection 90(1) of the
Act, Canada Employment Insurance Commission (Commission)
had requested a series of ruling with respect to persons claiming
to have been employees of SRC during 1996, and an officer of the
Canada Customs and Revenue Agency (CCRA) was authorized by the
Minister to issue rulings in relation to certain questions. Once
those rulings were issued, each person concerned with the effect
of a ruling - including the Commission - had the right to appeal
- to the Minister - within 90 days, pursuant to section 91 of the
Act. In accordance with section 93 of the Act, the
Minister decided each appeal and issued a decision relevant to
each worker. Those workers who appealed a decision of the
Minister to the Tax Court of Canada - and maintained that course
of action - are those persons named in the within style of
cause.
[13] Counsel for the respondent advised the
Court the Minister was not seeking any finding in respect of any
appellant that would have the effect of worsening that person's
position regarding either the period of employment or the amount
of insurable earnings as stated in the decision issued by the
Minister.
[14] In the course of issuing rulings, the
Rulings Officer - Janet Mah - sent questionnaires to each
appellant. During the appeals process, another questionnaire was
utilized by the Appeals Officer - Bernie Keays - as part of his
decision-making process. In the course of the investigation
conducted by HRDC, most of the appellants were interviewed, some
more than once. Throughout the hearing of the within appeals,
there were numerous references to those questionnaires and to
interviewers' notes and other documents relevant to the
interviews. During the hearing, questionnaires were commonly
identified as either a Rulings Questionnaire or - in the case of
a subsequent questionnaire - an Appeals Questionnaire. Unless
there is a need to do so, I will not identify whether the
particular questionnaire pertaining to a specific appeal was
generated during the rulings stage or the appeals process and
will refer to the relevant document by tab number within a
specific exhibit.
[15] Although the periods of employment and
other facts differ from appellant to appellant, the following
assumptions of fact, extracted from the Reply to the Notice of
Appeal (Reply) of Varinder Kang (2000-2354(EI)) apply to each
appellant in the within proceedings and are as follows:
a) the Payer
was a corporate entity, incorporated on February 26, 1996 and
100% of the issued shares were held by Manjit Rana;
b) the Payer
was in the business of providing farm labourers to farms located
in the Lower Mainland and in addition, sold Records of Employment
("ROE");
c) the Payer,
in addition to providing farm labour, operated a blueberry
business;
d) the Payer
maintained one bank account only and this account was at the
Toronto Dominion Bank at 49th and Fraser Street, Vancouver (the
"Bank Account") and all transactions went through this
Bank Account;
e) the Payer
never made any withdrawals of cash from the Bank Account;
f) the
T4 summary completed by the Payer indicated gross wages of
$795,358.00 for 108 employees for the 1996 taxation year;
g) the total
deposits to the Payer's bank account were $414,466.95 for the
period April, 1996 to December 31, 1996;
h) the total
payroll deductions at source per the Payer's T4 summary
including the Payer's share of employment insurance and
Canada Pension Plan contributions were $160,642.51;
i) the
Payer remitted to the Receiver General for Canada $3,724.74 on
August 15, 1996 and no other payments on account of
deductions at source were remitted;
[16] Notwithstanding that proceedings were
based on common evidence and that the majority of exhibits filed
- as set out in detail later - applied to most appellants, it is
important to state that each appeal depends on its own particular
facts and will receive an independent analysis of the evidence
relevant to that matter. The evidence often concerned details
such as start and end dates of employment, method of
transportation to and from work, amounts and timing of
payment(s), nature of work alleged to have been performed and the
location thereof. Because there was often no paper trail to
support certain vital aspects of an appellant's case, it became
apparent credibility would be a major issue in nearly every
instance. Therefore, there was a great deal of testimony
concerning matters one might otherwise tend to relegate to the
category of trivia or minutiae, but were significant in the
context of these cases. By way of example, the testimony of
several appellants - through the interpreter - including
examination-in-chief, cross-examination and re-examination,
occupied two or three days. Although the benefits were still
calculated in weeks for those appellants who commenced employment
prior to July 1, 1996, the issue of hours of work was an
overriding component of these appeals because the majority of
appellants maintained they had been hired to pick berries - or to
perform other services - on the basis of receiving an hourly
wage. The Minister' position - with respect to those appellants
alleging they were paid an hourly rate for berry picking - is
that the actual remuneration paid by SRC to workers - during 1996
- was based on piecework at a certain amount per pound or per
flat of berries - in accordance with industry practice - and that
no workers were compensated for picking berries by way of an
hourly wage, at the minimum established by provincial law, or
otherwise. One must examine the testimony of each appellant - and
of other witnesses - in relation to relevant documents, previous
statements - whether under oath at Examination for Discovery
(Discovery) or during an HRDC interview - and attempt to make
sense of the business operations carried out by SRC during the
relevant periods. When I deal with the evidence as it pertains to
each appellant, there will be apparent redundancy but the nature
of each worker's case is such that it must be dealt with on an
individual basis with close regard to the facts applicable to his
or her appeal. The onus is on each appellant to prove his or her
case on a balance of probabilities and that requirement was
repeated several times during the course of the proceedings in an
effort to ensure each appellant was aware of the importance in
presenting to the Court all relevant facts and to disclose -
fully - the circumstances of their employment including details
of the work performed such as hours, location, method of payment
and identity of co-workers. In the course of proceedings, the
impact of the assumptions of fact relied upon by the Minister, as
set forth in the Reply applicable to each appellant, was
explained to those appellants represented by agents other than
Darshen Narang or those appearing on their own behalf.
[17] Counsel for the respondent and Darshen
Narang - agent for the first group of appellants - consented to
the introduction of a large number of exhibits, the majority of
which were in binders containing numerous documents. In the
course of completing the process of Discovery, each appellant had
been provided with a binder of documents pertaining specifically
to his or her own appeal. The appellants represented by other
agents and/or those self-represented - at some point - either had
advised counsel for the respondent they agreed said exhibits
could be filed with the Court or - at the outset of proceedings
or upon making an appearance for the purpose of providing
testimony - consented to filing of the following exhibits,
described as:
R-1 - Respondent's Book of Documents - Vol. 1, tabs
1-35, inclusive;
R-2 - Respondent's Book of Documents - Vol. 2, tabs
36-62, inclusive;
R-3 - Respondent's Book of Documents - Vol. 3, tabs
63-79, inclusive;
R-4 - Respondent's Supplementary Book of Documents - Vol. 1,
tabs 1-135, inclusive;
R-5 - Respondent's Supplementary Book of Documents - Vol. 2,
tabs 136-275, inclusive;
R-6 - Respondent's Supplementary Book of Documents - Vol. 3,
tabs 276-389, inclusive;
R-7 - Respondent's Supplementary Book of Documents - Vol. 4,
tabs 390-444, inclusive.
R- 8 - Respondent's Miscellaneous Book of Documents - tabs
1-31, inclusive;
R-9 - Respondent's Book of Documents re: Inderjit Singh Atwal
(Docket # 2000-2362), tabs 80-106, inclusive;
R-10 - Respondent's Book of Documents re: Sharinder Bagri
(#2000-2363), tabs 80-106, inclusive;
R- 11 - Respondent's Book of Documents re: Jaswinder Bassi
(#2000-2359), tabs 80-118, inclusive;
R-12 - Respondent's Book of Documents re: Taro Bassi
(#2000-2319), tabs 80-106, inclusive;
R-13 - Respondent's Book of Documents re: Gurmail Cheema
(#2000-2321), tabs 80-108, inclusive;
R-14 - Respondent's Book of Documents re: Jaswinder Cheema
(#2000-2322), tabs 80-110, inclusive;
R-15 - Respondent's Book of Documents re: Ajmer Gill
(#2000-2367), tabs 80-108, inclusive;
R-16 - Respondent's Book of Documents re: Gurbachan Gill
(#2000-2323), tabs 80-111, inclusive;
R-17 - Respondent's Book of Documents re: Gurmail Singh Gill
(#2000-2653), tabs 80-107, inclusive;
R-18 - Respondent's Book of Documents re: Ravjit Gill
(#2000-2368), tabs 80-112, inclusive;
R- 19 - Respondent's Book of Documents re: Varinder Jassal
(#2000-2357), tabs 80-108, inclusive;
R-20 - Respondent's Book of Documents re: Gurcharan Johal
(#2000-2329), tabs 80-111, inclusive;
R-21 - Respondent's Book of Documents re: Karmjit Johal
(#2000-2331), tabs 80-112, inclusive;
R-22 - Respondent's Book of Documents re: Harbans Kang
(#2000-2356), tabs 80-112, inclusive;
R-23 - Respondent's Book of Documents re: Varinder Kang
(#2000-234), tabs 80-108, inclusive;
R-25 - Respondent's Book of Documents re: Didar Mehat
(#2000-2334), tabs 80-113, inclusive;
R-26 - Respondent's Book of Documents re: Prabhjot Minhas
(# 2000-2335), tabs 80-106, inclusive;
R-27 - Respondent's Book of Documents re: Harbans Purewal
(#2000-2360), tabs 80-117, inclusive;
R-28 - Respondent's Book of Documents re: Parmjit Rehal
(#2000-2365), tabs 80-115, inclusive;
R-29 - Respondent's Book of Documents re: Bakhshish Thandi
(#2000-2366), tabs 80-114, inclusive;
R- 30 - Respondent's Book of Documents re: Gian Thandi
(#2000-2370), tabs 80-116, inclusive;
R-31 - Respondent's Book of Documents re: Sukhwinder Toot
(#2000-2342), tabs 80-116, inclusive;
R-34 - Respondent's Book of Documents re: Bhagwant Grewal
(#2000-2324), tabs 80-109, inclusive;
[18] As the relevant testimony of each
appellant is reproduced in detail in these reasons, I will
identify a particular binder - labelled Respondent's Book of
Documents and marked with a specific Exhibit number - applicable
to that appellant and, thereafter, unless otherwise noted, a tab
number will refer to documents located within that binder.
VARINDER KAUR KANG
[19] Varinder Kaur Kang testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2354(EI) - is
Exhibit R-23. She appealed from the decision of the Minister
concerning the insurability of her employment with SRC during the
period from October 6 to December 28, 1996. The Minister decided
the appellant was not employed in insurable employment because
she was not employed under a contract of service pursuant to
paragraph 5(1)(a) of the Act. The appellant's
position is that she was employed under a contract of service
during said period and had insurable earnings in the sum of
$4,410. The Minister relied on the following assumptions of fact
set forth in paragraphs 4 (j) to (n), inclusive, of the Reply to
the appellant's Notice of Appeal:
j) the
Appellant delivered her second child on August 30, 1996;
k) the
Appellant required 12 weeks of insurable employment to qualify
for employment insurance benefits during the 1996 taxation
year;
l) the
Appellant gave conflicting statements to authorities with respect
to the method of pay and the timing of same, the duties of
employment, the days and hours of work, the location of the
farms, the identity of fellow workers, the childcare arrangements
and the transportation method;
m) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record, the cash receipt, in regards to the Appellant,
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
n) the
Appellant did not perform any duties for the Payer during the
Period.
[20] The appellant stated she began working
for SRC on October 6, 1996 and continued to provide services to
that employer until her layoff on December 28, 1996. She
acknowledged having received an ROE following layoff, a copy of
which appears at tab 93 and identified her Social Insurance
Number (SIN) thereon, amended by someone in reference to the last
three digits, as correct. The appellant recalled having attended
an interview in which numerous questions were put to her by an
official - Janice Morrow - employed by HRDC. At tab 96, the
appellant identified her signature which appears on the last page
of a 13-page document entitled Supplementary Record of Claim
which recorded - in the handwriting of Morrow - the contents of
the interview conducted on May 26, 1997. Kang stated she arrived
in Canada on October 8, 1993 and is not proficient in the English
language. Throughout the interview, she was assisted by a
Punjabi/English interpreter. If a question was asked that she did
not understand, then she would call upon the interpreter to
explain it to her in Punjabi and her answer - in Punjabi - would
be interpreted - in English - to the interviewer. At tab 98, Kang
identified her signature on a document entitled Statutory
Declaration to the Commission, dated September 10, 1997, although
she does not recognize the handwriting thereon. At tab 107,
Kang identified a document headed "Questionnaire To Be
Completed By Worker" that she had completed in her own
handwriting but stated the answers provided therein had been
dictated to her by an employee of an organization called
Progressive Intercultural Community Services Society (PICS) (see
Exhibit R-8, tab 1, p. 2) that assists immigrants with respect to
various matters. Kang stated she was issued a T4 for 1996 and
filed an income tax return for that year.
[21] In cross-examination by Johanna
Russell, counsel for the respondent, Varinder Kaur Kang stated
she is 29 and following her arrival in Canada lived in
Montréal until moving to Surrey, British Columbia in
August, 1994. In February, 1992, she had married Baldev Singh
Kang. Her maiden name was Mahli and her mother is Balvir Kaur
Malhi, a co-appellant in the within appeals. The appellant's
parents, a brother and two sisters, one of whom - Ranjit
Kaur Malhi - also worked for SRC in 1996, came to Canada in May,
1996. Her mother-in law - Harbans Kaur Kang is a
co-appellant and her father-in-law
- Harbhajan Singh Kang - was one of the van
drivers transporting SRC workers during 1996. The appellant
stated she has three children, born in February, 1995, on August
30, 1996 and in September, 2000. Kang stated she completed Grade
11 in India and in the course of her schooling had studied
English - as a subject - for 4 or 5 years. In
Montréal, she attended English as Second Language (ESL)
classes for two months. After moving to Surrey in August,
1994, she went to ESL instruction for another two or three
months. At tab 91, Kang identified her signature at the bottom of
a form entitled "Insurable Employment Questionnaire".
She stated she understood that the form - dated 06/01/97 (January
6, 1997) - related to her unemployment insurance (UI) benefits.
Kang agreed with counsel's suggestion that she had also completed
the relevant application forms for her mother and sister but
added that even though her handwriting appears on those
documents, she had received assistance from other persons - at
different times - in completing them. Kang recognized - at
tab 86 - a document described as a Questionnaire which
had been completed in her own hand with answers provided with the
assistance of her husband. In order to complete the worker's
Questionnaire - tab 107, dated October 18, 1999 - Kang stated she
had relied on assistance provided by a male official or volunteer
at PICS, although she did not know his name and had not attempted
to ascertain this information prior to completing the
Questionnaire. The appellant stated she had learned about PICS
through a Punjabi-language radio broadcast. Counsel
referred the appellant to an answer provided at Discovery -
November 29, 2001 - in which she had been referred to the said
Questionnaire and agreed she had not mentioned having received
any assistance from anyone at PICS. During 1996, the appellant's
husband - Baldev Singh Kang - was employed as a
taxi driver, working an 8 hour or 9-hour shift
- 5 days per week - starting at 6:00 p.m. The
appellant's mother also lived in Surrey, about 5 minutes -
walking - from the appellant's residence and her brother and
sister were both attending high school in 1996. Kang obtained her
British Columbia Driver's Licence in 1996, prior to her
employment with SRC and had worked for two months at a plant
nursery and also at a chocolate factory for 4 months where
she had been laid off upon her employer learning of her
pregnancy. Prior to her lay off, she had been provided with
information concerning EI maternity benefits. When applying for
said benefits, the appellant stated she had considered she might
be short one week of work within the period needed to qualify. In
1996, Kang stated she had a joint account with her husband at a
branch of Canada Trust in Surrey. Turning to the circumstances of
the appellant's hiring by SRC, Kang advised counsel that a friend
of her mother was working at SRC and mentioned to management that
the appellant was looking for work. Later, during a telephone
conversation, Kang spoke with Surinder (Shindo) Suran and Bant
Suran whom she considered to be the owners of the SRC business.
Kang stated Bant drove a van that transported workers to various
job sites and that Shindo was not only a driver but also
supervised workers. The appellant stated she had never met Manjit
Rana although co-workers had informed her that Rana was Shindo's
brother. Kang stated she recalled the interview - tab 95 - held
at the HRDC office and agrees that - at Q. 1 - concerning what
languages she could speak, read or write, she provided the
Answer (A) as follows: English, Punjabi, Hindi. At Q. 2,
inquiring as to the completion of the Application for
Unemployment Insurance Benefits, Kang responded it had been
"completed on her own". Following the birth of her first child in
February, 1995, the appellant admitted she had suffered back pain
which had limited her work at the nursery to less than two months
due to the need to lift heavy pots onto carts and that she had
her gall bladder removed on December 3, 1996. As a result of that
surgery - which had been scheduled for some time - she could not
work for three days and the appellant agreed she may have missed
some working days between October 6 and December 28, due to
medical appointments, although she cannot recall the frequency or
timing of these visits, if any. Kang's second child was born at
the end of August, 1996, and due to some complications, the
appellant had to rest for three weeks and was unable to
breast-feed. During this period, child care was undertaken by her
husband and a lady - Harbans - who lived upstairs. After school,
her brother and sister came to the house and assisted in caring
for the older child and the baby. Kang stated her mother - Balvir
Kaur Malhi - took some time off work in order to care for the
newborn. Counsel referred Kang to an answer she had provided
during an HRDC interview - tab 96, p. 12 - headed "Child Care
questions" in which Kang stated her mother had helped care for
the baby one week in September. Kang responded that her mother
had also helped during evenings - after work - by taking the baby
to her own residence. The appellant stated that she rode to work
in a brown van on her first day. The driver was Bhan Singh Sidhu
who had been a teacher in India and - as a mark of respect - was
referred to by the workers/passengers as "Master". Fellow workers
were addressed as "Uncle", "Auntie", or "Sister". Kang stated she
rode to work in the van together with her mother
- Balvir Kaur Mahli - and her sister, Ranjit
Kaur Mahli but had never travelled to work in the company of her
mother-in-law Harbans Kaur Kang nor had she been transported to
work in a van driven by her father-in-law, Harbhajan Singh Kang.
She pointed out that the only drivers who had ever taken her to
and from work were Bant, Shindo and/or Master. Kang stated both
parents had worked for SRC at some point earlier in the 1996
season but was unsure of the exact periods of employment. Her
father drove one of the vans owned by SRC and parked it overnight
at a nearby gas station, perhaps a 15-minute walk from his
residence. In October, 1996, her husband's parents went to India
and took her eldest child (18 months) with them where they
remained for 6 or 7 months. During the HRDC interview - tab 96,
p. 3, Q. 10 - the appellant was asked about details of
travel to work whether by bus or van, description of the vehicle,
identity of driver(s), consistency of vehicle use and other
identifying details. The answer of the appellant - as recorded by
the interviewer - is that she was "picked up always from home
.... used to call him Master because he was a teacher in India
.... drove the van the whole time". Counsel referred the
appellant to a similar question (#8) in the Questionnaire
- tab 107 - about the identity of the van/bus
driver to which she had responded by writing "Different Drivers".
At Q. 9 of said Questionnaire, in response to the query "Did you
always have the same van/bus driver?" the appellant had written
"No". The appellant explained that Master had always driven the
same brown van but that she had also been driven to work in a
cream-coloured van. Also, Bant Suran and his wife, Shindo,
had driven her to work in a white van and/or a small red car
which held 5 passengers. The appellant stated she had never
ridden to work in a bus but had ridden to work in the van with
Master until almost the middle of November. Counsel referred the
appellant to documentation indicating Master - Bhan Singh Sidhu -
had been laid off by SRC on October 12, 1996 according to forms
submitted to HRDC by Master himself when applying for benefits.
Counsel suggested to the appellant that - now - she found herself
in the position of having to invent other drivers during the
remainder of her alleged employment since Master was no longer
around following his layoff which occurred only 6 days after
Kang's purported first day of employment with SRC. Kang replied
that she had understood the questions concerning drivers as
relating to which person "mostly" had driven her to work. As for
her last day of work, the appellant said she was certain that
Shindo had been her driver. During the HRDC interview - tab 96,
p. 3, Q. 9 - the appellant's recorded answer to the
second part of the written question "was the same method of
transportation used for the entire period?" was "Van - always a
van she went to work in". Kang stated she had meant to say that
she "mostly" had gone to work in a van as that was her
understanding of the sense of the question. Counsel referred Kang
to the first part of the last question in the Questionnaire at
tab 86, namely "How did you get to the work site?" and the
appellant's response therein "in van from my home". At
tab 107, Q. 5, in response to the question, "How did you get
to the job site each day?" Kang had written "S & R
Contractor's van and bus". Kang stated she had not understood
that she was being asked about how she had - personally -
travelled to work and had provided that answer because she knew
SRC also owned a bus which was used to transport workers to the
fields. Counsel pointed out to the appellant that in the same
Questionnaire - at Q. 7 - her response to the question "Were you
picked up by van or bus?" Kang's answer was "sometime van -
sometime bus". Kang explained the confusion therein must have
arisen due to the PICS' worker misunderstanding her answers or
not recording - properly - her responses to those questions. The
appellant reiterated she had travelled to work in the same van as
her mother and sister, Ranjit. Also, she recalled that her mother
and sister had been laid off at different times. Counsel referred
Kang to ROEs issued for her mother and sister indicating the last
day of work for both was the same. Kang was referred to a
response provided during an HRDC interview
- tab 96 - in relation to a question - #13 -
concerning how many persons were in the vehicle. The appellant's
recorded answer was "8 people @ the most, sometimes less" and in
December that there were "5 or 6 persons." When counsel
reminded the appellant that during her examination-in-chief she
stated 18-20 passengers had been transported in the van
driven by Master, Kang replied this larger number was intended to
refer only to peak times during the season. The usual van in
which she rode to work had 3 or 4 wide seats, facing
forward. Kang recalled the work day as beginning with the pick-up
by the van driver between 5:30 a.m. and 6:30 a.m. and ending
with the drop-off between 4:00 p.m. and 7:00 p.m. depending on
the circumstances on a particular day. Referred by counsel to an
earlier statement in her interview
- tab 96 - the appellant agreed the usual
time she returned home was between 5:00 p.m. and 6:00 p.m.
despite having given an answer recorded as "btn (between) 5
& 6 p.m., always return home". Describing her first day at
work - October 6 - Kang stated she separated blueberries - in
flats - from leaves and other material and set aside the larger
berries. This task occupied almost one week and was performed at
two farms, both located in the Abbotsford area. The appellant
stated she had informed SRC management that she could not perform
heavy work and was permitted to work - outside - by herself. The
second week of work involved cutting off dry branches from
raspberry bushes. Again, this work was performed on a farm near
Abbotsford with other workers whom she knew only as "Uncle,
"Auntie" "Sister" and/or "Brother". The appellant stated the next
work performed at two farms in Richmond - referred to by workers
as "the Chinese Farm" and the "White Farm" - was in respect
of vegetables, i.e., cauliflower, zucchini, potatoes, long white
radishes (lo bok), turnips and peppers. The vegetable work
consisted of pulling vegetables from the ground, washing them and
placing them in a container and it occupied her time throughout
the month of November. Peppers were the first to be picked,
followed by harvesting of zucchini, lo bok, potatoes and
turnips. Following that - at the beginning of December - Kang
stated she worked on a farm where - together with
other workers - she tied wires to branches on raspberry bushes.
She had surgery on December 3 and later returned to work where
she continued to tie vines and wash and pack vegetables until the
end of her employment on December 28, 1996. Counsel referred
the appellant to a report prepared by an expert in crops -
including harvesting times - within the Lower Mainland area
relevant to the within appeals. In said report, counsel advised
the appellant the Minister was relying on the information
contained therein to the effect that it was not possible to have
picked peppers later than October 15 - in 1996 - as the season
was finished by that date. Kang insisted - despite the opinion of
the alleged expert - she had picked different varieties of
peppers and also picked zucchini throughout November and
harvested other vegetables in December. Counsel advised Kang that
the Min Ho (Chinese) Farms had reported its last sale of
vegetables on November 24, to which the appellant responded that
she may have been performing the vegetable work on the "White
Farm". Counsel referred Kang to Qs. 328-330 of her
Discovery where she had stated turnips were picked in December
and she had also picked cauliflower and turnips for one or two
days. Kang replied that she may have confused "picking" with
"packing" in relation to vegetable work performed near the end of
her employment in late December. Kang confirmed she had never
picked any fruit during her employment with SRC and had only done
the work as described in her testimony. Counsel referred Kang to
tab 107, Q. 14 "What type of work did you do?" to which
the appellant - in her own hand - had written "blueberry picker
and vegetable person". Kang agreed that statement was not correct
and "someone else" had instructed her to reply in that manner.
During the HRDC interview - tab 96 - the appellant's recorded
answer - to Q. 7 - concerning the type of work
done for SRC throughout the course of her alleged employment,
included a reference to working "sometimes strawberries,
raspberries, blueberries but mostly vegetables", and in the same
response to "berries just in beginning of work". Kang agreed she
had mentioned strawberry work in the course of her HRDC interview
but only in the context of that work having been done by workers
other than herself. Counsel suggested to the appellant that she
only mentioned the involvement of a PICS worker at a later date
in order to attempt to explain away numerous inconsistencies in
the Questionnaire at tab 107. Kang responded that she and
her family had obtained a $25 membership to PICS prior to
applying for EI benefits. Although she had seen some persons
- including Harbans Kaur Kang - with picking cards
which she described as small, like recipe cards, the appellant
stated she was paid the hourly rate of $7 throughout her
employment regardless of the task performed. She stated her
mother was also paid by the hour and was not aware whether any
co-worker had been remunerated for piecework, based on weight
and/or volume but agreed they may have been paid in that manner.
Counsel referred the appellant to her Statutory Declaration
- tab 98 - signed on September 10, 1997.
Kang agreed she had been accompanied by her friend, Harinder
Singh, who was fluent in English and Punjabi and that he had
assisted throughout the interview - on September 10, 1997 - with
Janice Morrow, an HRDC employee. Kang stated she did not
recall the declaration having been translated back to her for
comment and the copy thereof handed over by Janice Morrow was
retained by her friend. During the interview, Kang had stated she
worked 8-9 hours per day for a maximum of 25-30 hours per week
since there was less work in December. Counsel pointed out to the
appellant that she had stated that only Bant and/or Shindo were
her supervisors but at tab 107 - at Q. 30 - in response to the
question "Who was your supervisor?" she had written "Rana". Kang
explained that she had been told that her supervisor was actually
Rana notwithstanding her earlier opinion. Earlier in the
Questionnaire - at Qs. 27 and 28 - the appellant had stated
that her hours of work were recorded by Rana. Kang stated she had
become aware that Rana was the owner of SRC and that she should
use his name when answering questions of this sort, despite never
having met - or even seeing - him. In response to questions put
by counsel concerning her method of payment, the appellant
explained that she had received a total of $3,900 in wages from
SRC. While working near the end of October, she received a cheque
- in the sum of $1,500 - representing her first payment of wages.
However, she does not have a copy of the cheque but recalled it
had been issued on the personal bank of account of Bant and/or
Shindo - at the 49th Ave. and Fraser St. branch of the
Toronto-Dominion (TD) bank - instead of the SRC account. Kang
agreed she cannot prove this assertion but stated the money was
used to pay rent for herself and family. The second payment in
the sum of $1,400 or - perhaps - $1,500 was a cheque on the
personal account of Bant/Shindo and - while working on vegetables
- it was handed to her by a male co-worker, Jaswinder Singh.
Again, she cashed the cheque at the same branch in Vancouver and
drove there in her own car whereas in October her husband had
driven her to the bank in order to cash the cheque. Kang stated
her husband had advised her to attend at that TD branch to
present the cheque in order to avoid incurring NSF charges on
their own account if it turned out the cheque was no good. Kang
stated she received her final payment for wages after receiving a
phone call - on December 31 - instructing her to attend at Bant
and Shindo's residence. On or about January 2, 1997, Kang and her
husband went to the Bant/Shindo family home where she spoke to
Shindo in the living room. Kang stated she had been told there
would be more work available - at a cannery - but Shindo merely
handed her $900 in cash together with an ROE - tab 93 -
pertaining to her period of employment with SRC. The cash was
handed over to her husband and was in $10, $20, $50 and $100
denominations. The appellant stated she did not inquire whether
the amount received represented all the wages to which she was
entitled because she was satisfied that - at the rate of $7 per
hour - she had worked enough to earn the sum of $3,900 after
deductions even without understanding the amounts attributable to
income tax, EI premiums or Canada Pension Plan (CPP)
contributions. The appellant recalled her sister - Ranjit -
receiving cash in payment of wages owing to their mother - Balvir
Kaur Malhi - because money was required to buy some used
furniture. In addition, the appellant recalled a cheque in the
sum of $3,000 issued in Ranjit's name in respect of her mother's
wages but does not know who signed the cheque or the account upon
which it was drawn. Kang explained that she did not discuss money
matters with her parents because they were new arrivals to Canada
and did not understand the system. Even today, the appellant
advised she is uncertain whether her mother and/or sister were
paid in full - by SRC - for their services. It was not her policy
to inquire into such matters and is unaware whether her
mother-in-law - Harbans Kaur Kang - had received
all her wages. Kang recalled she had telephoned the residence of
Bant/Shindo in order to request the sum of $500 owed to her
mother because her parents needed money to buy groceries. Either
Bant or Shindo informed her they did not have the money at the
time and the wages would be paid at a later date and -
subsequently - Master handed her $500 in cash which she handed to
her mother near the end of October. In order to obtain an
explanation concerning this payment, Kang stated she spoke to
either Bant or Shindo and was informed her parents had telephoned
to ask for money owing for her mother, Balvir Kaur Malhi.
Counsel pointed out that her mother was still employed at SRC at
the end of October and asked why SRC management would hand her
the money. The appellant replied that it was probably because she
was the one who took her parents to buy groceries. Kang denied
having returned any portion of her wages to any person involved
with the business of SRC. During the HRDC interview on September
10, 1997, the appellant had stated she received "5 or 6 cheques
and cashed them all at the employer's bank". She also told Janice
Morrow - the interviewer - that she received a total of $3,000 in
cash and cheques. Kang explained that she had been "scared" by
the interpreter because she should not have been paid in cash for
working. Counsel pointed out the interpreter was her friend and -
at that time - also a co-worker to which the appellant responded
by stating it was the first time she had dealt with such a
matter. In her Statutory Declaration - tab 98 - Kang
stated she earned "approximately" $3,000. In responding to the
Questionnaire - tab 107 - at Qs. 32-34, inclusive, Kang had
stated she was paid in cash but could not remember the amount
paid in cash and/or by cheque nor could she recall the frequency
or payment, whether weekly, bi-weekly, monthly or end of season.
Kang explained she had been advised - at an earlier stage - not
to mention any cash payments by SRC but - later - received
different advice to the effect that she must disclose all
payments received, regardless of the form. The appellant's pay
statement - tab 90 - prepared by SRC's bookkeeper was shown to
the appellant. It indicated she had earned the gross amount of
$4,410 with net pay - after deductions - rounded off
to $3,935. Counsel suggested to the appellant that as a result of
having seen this particular pay statement - in the course of the
Discovery process - she had adapted her recollections of payment
to match this amount. Kang replied she had not seen this document
until presented to her in Court and had received a T4 slip
setting out her earnings. The notes of the interview with Kang
- tab 96 - state she responded - at Q. 18 -
to a query re: frequency of payment and amounts and a request for
pay stubs, as follows: "every pmt (payment) by cheque - they said
no to semi-monthly, only by the month, amts (amounts) paid were
diff. (different) because of hrs worked, pd by personal cheque,
no pay stub". At tab 97, Morrow's typed notes of the interview
with the appellant on September 10, 1997 - p. 1, Q. 3 - indicate
the appellant's response to a question concerning the method of
payment, whether by cheque or cash as "I was paid by cheque,
Bhunt (Bant) or his wife, Shindo, would give me my cheque". The
appellant's recorded response to the next question concerning
frequency of payment was "the time of payment varied, it was not
always bi-weekly". Still on p. 1 of the interview notes, the
question put to Kang was "were you always paid by cheque?" to
which she apparently responded "sometimes I would get advances
and this would be in cash, otherwise it was always by cheque".
Confronted with these references to her former statements, the
appellant stated that the cash received had been for part payment
of wages owed by SRC to her mother, Balvir Kaur Malhi even though
at Q. 33 of the Questionnaire - tab 107 - she had stated that she
- personally - had been paid in cash. At Q. 29 of the
interview - tab 96 - on May 26, 1997, the appellant was
asked at which bank she had cashed or deposited her pay from SRC.
Kang's response was that she had a joint chequing account at
Canada Trust with her husband and that cheques were "mostly
deposited there". She also mentioned a joint saving account at
the Bank of Montreal but there was no reference to cashing any
cheques at the TD bank at 49th and Fraser in Vancouver. Kang
confirmed counsel's assertion that a review of the appellant's
bank account statements do not disclose the transaction of any
pay cheque having been deposited. However, she added that - in
her view - she had been asked - by Morrow - where she "usually"
did her banking and she responded accordingly because the cheques
received were not from SRC but from Bant and/or Shindo. During
the interview on September 10, 1997 - tab 97, p 2 - the
appellant's answer to a question about whether she cashed or
deposited the cheques given to her by the employer and - if so -
where and at what bank was "I cashed all my cheques at the
employer's bank because if I cashed them at my own bank they
would put a 'freeze' on my account for a certain number of days
and I needed the money right away". A few questions later on that
page, Morrow noted Kang's replies to questions concerning the
number and amounts of cheques received as "I got 5 or 6 cheques
and cashed them all at the employer's bank" and that they were
"always about $400 or $500". Kang admitted that statement was
wrong and had been repeated in her Statutory Declaration - tab 98
- because she had received only two cheques from her employer and
suggested Morrow must have made an error in recording her
answers. Counsel referred Kang to a receipt - tab 89 - dated
December 28, 1996 purporting that the sum of $2,000 had been
received from Varinder K. Kang and suggested that her
signature appears at the foot thereof and that the money had been
paid to purchase an ROE - from SRC - so the appellant could
qualify for EI benefits. Kang stated that was not her
signature and that she had never seen this so-called receipt
until it was presented to her at the first HRDC interview.
Counsel pointed out to Kang that her ROE is dated December 31,
1996, three days later. Kang - again - denied ever having paid
any money to any person involved with SRC whether on her own or
on behalf of her family or her husband's family. At her first
HRDC interview - tab 96, p. 7, Q. 25 - she was asked why SRC had
issued a receipt to her acknowledging payment in the sum of
$2,000. The response recorded by Janice Morrow is as follows:
...client stated yes that was her signature. Her in-laws
borrowed $ from the contractor in advance to go to India. They
said client will work for you just deduct it from her. But client
was pd full wages. So the $2000 was balance of $ in-laws owed
contractor. Client pd it for them because (they were) in
India.
[22] Kang agreed she had given that response
but had re-attended at the HRDC office in order to correct the
false impression left by her answer. She states she spoke to a
female Punjabi-speaking HRDC employee in the front office and
advised her that no money had ever been paid to SRC. The
appellant stated she informed the HRDC employee that she had to
leave abruptly because her children were waiting in the car.
Counsel referred the appellant to statements provided by other
SRC workers wherein they had admitted purchasing an ROE and
advised Kang that Manjit Rana - sole shareholder of SRC - had
admitted to HRDC investigators that the receipts - discovered in
SRC records - represented acknowledgement of money paid to SRC
for the purchases of ROEs. Kang replied that she did not know any
of the workers who had made these confessions, as alleged by
counsel, and had no knowledge of any such arrangement between
workers and any principals or supervisors at SRC. Kang stated it
should be kept in mind that the 1996 season was the first
occasion during which either she or her mother and/or sister had
ever worked on a farm and they were in no position to question
the methods of payment or other labour practices employed by SRC.
It had been difficult to obtain payment from Bant for work
performed by her mother and she often received nothing more than
excuses. Moreover, other workers had advised her not to raise the
issue - with Bant - about receiving regular pay cheques. Counsel
directed the appellant to the Statutory Declaration of her mother
- Balvir Kaur Mahli - in Respondent's Book of Miscellaneous
Documents - Exhibit R-8 - at tab 22. In said Declaration - dated
August 22, 1997 - Mahli recited that when she began working for
SRC she had only been in Canada 4 days and never discussed how
much she would be paid. She then stated - in the second
paragraph:
When I was laid off, I asked for my pay. I went to the home of
the owner/driver & his wife (Bhunt [sic] & Shindo)
in Vancouver. When I got there they gave me a record of
employment and told me I could apply for Unemployment Insurance
& I would get money from there. SR Contractors never paid me
any money, not by cash or cheque. The copy of the cheque for
$7,000 issued Nov 96, I did not sign and have never seen. This is
the truth to the best of my knowledge.
[23] Counsel also referred the appellant to
a statement made by her sister - Ranjit Kaur
Mahli - at Exhibit R-8, tab 31 - during an HRDC interview wherein
Ranjit had advised that her mother - Balvir Kaur Mahli - had
never received any payment of wages from SRC and that she -
personally - had been paid only one cheque in the sum of
$3,000 for her own work. Kang stated she accepted the fact that
her mother had never been issued a cheque by SRC. Concerning the
number of hours worked in November, counsel put before the
appellant her ROE - tab 93 - indicating pay periods
wherein sums varying between $735 and $784 had purportedly been
earned by the appellant. However, according to the appellant's
own testimony, she had worked only 25-32 hours per week due to
the effect of bad weather. At $7 per hour, the appellant would
have needed to work between 105 and 112 hours - in a two-week pay
period - in order to earn those amounts. Kang disagreed with
counsel's suggestion that the ROE was inaccurate. Counsel
referred her to an answer - at p. 5 of interview notes at tab 97
- where she had offered the explanation that her ROE showed more
hours because her employer was "banking" hours for workers to be
"used in weeks when the work was slow". Kang replied that this
answer was the version of her response as provided to her friend
who was acting as interpreter but agreed the ROE was inaccurate
in that she had not been paid bi-weekly.
[24] Varinder Kaur Kang was re-examined by
her agent, Darshen Narang. She related her work history since
1995 when she had worked in a restaurant and then at a nursery.
In 1996, she worked for another nursery and then at the chocolate
factory until laid off - after 13 or 14 weeks - due to her
pregnancy. When applying for UI benefits, she presented all the
ROEs that had been issued to her by past employers. Since this
was the first time she had applied for benefits based on
maternity leave, she had no idea of the number of weeks of work
needed to qualify. She was advised by HRDC that she did not have
sufficient weeks in order to receive benefits and sought
employment at SRC - commencing on October 6, 1996 - because
she needed work. Due to her pregnancy resulting in the birth of
her child at the end of August, she had not been able to work
during the busy summer season. She and her husband sponsored the
immigration to Canada of her parents and three siblings who
arrived at the end of May. Her family required financial support
which was provided by the appellant and her husband who rented a
suite and purchased food and other necessities until her father
and sister found employment and began earning income. The
appellant stated she supported her family for two or three months
until they became self-sufficient. With reference to the
Questionnaire - tab 107 - Kang stated she did not understand the
purpose of returning the completed form to CPP/EI Appeals at a
Vancouver address. She was aware that her sister - Ranjit - had
received the same document. Kang stated her own Questionnaire was
completed at PICS. At tabs 91 and 92, the documents relating to
the appellant's application for UI benefits, there was no mention
of Kang having worked for any employers other than SRC. Kang
explained there was some person in the EI office who assisted her
to complete the forms and offered advice. Kang reiterated that
she had been advised by the PICS worker to reveal the fact she
had been paid some of her wages in the form of cash, despite
having attempted to deny - or, at least minimize - that aspect
during earlier interviews with HRDC officials. The appellant
stated she recalled her T4 for the 1996 taxation year and that
she would not have used it to file her income tax return if it
had not been accurate. She had also provided a copy to the HRDC
interviewer. Kang's agent - Darshen Narang - referred
her to the first page of the document at tab 95 which contained a
warning that there are penalties for "knowingly making false or
misleading statements". Kang agreed she had been aware of the
existence of penalties for not telling the truth and that it had
been made clear at both HRDC interviews.
[25] In further cross-examination by counsel
for the respondent, Kang stated she had not had any contact with
Bant and/or Shindo since receiving the T4 in early 1997. Counsel
put before the appellant her recorded answer - tab 97, bottom of
p. 4 - that she "contacted the employer everyday about my
mom's money and I still continue to do so, however, the
employer keeps giving excuses as to why it has not been paid".
Kang stated this answer was not accurate as she had spoken with
Bant and/or Shindo three or four times and had never contacted
Manjit Rana.
[26] In response to questions from the Bench
about the procedure followed - on two occasions - when cashing
cheques at the employer's bank, the appellant explained she had
to show personal ID - her SIN card and Driver's Licence - and
paid a fee of $5.
VARINDER KAUR JASSAL
[27] Varinder Kaur Jassal testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2357(EI) - is
Exhibit R-19. The Minister decided the appellant had 16 weeks of
insurable employment pursuant to a contract of service with SRC
from May 12 to October 26, 1996 and during that period had
insurable earnings in the sum of $7,000. The appellant's position
is that her period of employment began on April 21 and ended on
November 16, 1996. The Minister relied on the following
assumptions of fact set forth in paragraphs 4(j) to 4(s),
inclusive, of the Reply to the appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services to the Payer before May
12, 1996;
l) the
Appellant did not provide any services to the Payer during the
period starting June 28, 1996 and ending August 17, 1996;
m) the Appellant did
not provide any services to the Payer beyond October 26,
1996;
n) the
Appellant was paid $7,000.00 by the Payer for farm labour duties
during the Period;
o) the
Appellant did not receive any other remuneration from the Payer
other that the $7,000.00 admitted herein;
p) the Payer did
not withhold any amounts on account of payroll deduction or tax
from the remuneration paid to the Appellant;
q) the records
provided, for example, the ROE, the T4 slip, the pay cheques and
the Employee Earnings Record were fabricated to give the
appearance that the Appellant provided services for the Payer
before May 12, 1996 and beyond October 26, 1996 and that the
Appellant was paid in excess of $7,000.00 admitted, and these
records were a sham;
r) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
s) the
Appellant did not work for the weeks reflected in the ROE.
[28] The appellant was married in India on
March 12, 1995 and her immigration to Canada on July 2, 1995 was
sponsored by her husband. During 1996, she and her husband lived
in Vancouver. She was looking for work and her father-in-law made
inquiries at the Sikh Temple and learned SRC was searching for
farm labourers. The appellant had studied English as a subject
for 6 or 7 years during her education in India which extended to
Grade 11. Although she had applied for work in restaurants, SRC
was her first employer and during her employment there, obtained
her Driver's Licence. Jassal stated her first day of work was
April 21 and that she planted seeds - by hand - at a farm in
Richmond. She rode to work - with 5-7 other workers - in a van
driven by Shindo. The seeding work continued for about two weeks
and her next task was harvesting potatoes at a farm - known to
her as Mike's Farm - located along #10 Highway. This work lasted
for about one month and - in June - she did some clean-up at
a strawberry farm - Khakh Farms - in Chiliwack in
the Fraser Valley. Jassal stated there were about 40 other
workers at that farm where she remained until June 28th when she
left her employment with SRC and began working for a company
providing janitorial services to a mall in Burnaby. Her employer
lost the mall-cleaning contract and she was laid off on August
17. The next day, she went back to work at SRC as a result of her
mother-in-law inquiring whether she could return to her former
job. Following August 18, the appellant stated her first task
involved picking blueberries at 3 different farms located in
Abbotsford, Richmond and Mission. The blueberry work lasted about
6 or 7 weeks and was performed by approximately 40 workers.
Workers were transported to work in white, khaki, and maroon vans
driven by Bant, Shindo, and another driver. The vans carried
between 10-20 people and she also went to work on a 40-passenger
yellow bus driven by Harjit Gill. She was picked up between 5:00
a.m. and 7:00 a.m. and returned home between 6:00 p.m. and 7:00
p.m. because the van and/or bus stopped along the route at
various residences and other locations to drop off workers. At
the end of blueberry harvest, the appellant stated she began
working at a farm in Richmond - Min Ho Farms - with about 10
other people, picking and packing vegetables in large boxes,
including cauliflowers, potatoes, zucchini, peppers and lo bok.
The appellant stated she and other workers were driven to work by
Shindo and/or Binder Chahal. Jassal stated her pay was based on
$7 per hour throughout her entire employment with SRC regardless
of the task performed and was never based on piecework. She was
paid twice by cheques and once in cash. The cheques, in the sums
of $4,000 and $3,000 - received in October and November,
respectively for a total of $7,000 - were deposited to her
account at the TD bank at Fraser and 49th. Following her layoff
on November 16, the appellant stated she received the sum of $459
in final settlement of her wages. During her employment, the
appellant had been informed by Shindo that if she needed money
she could request it. Surjit Kaur Jassal, the appellant's
mother-in-law, was also employed by SRC from the end of May to
some point in October. Jassal stated she had not inquired whether
her mother-in-law had been receiving her wages on a
regular basis from SRC. While working at the cleaning job in the
mall, the appellant had been paid $7.00-$7.25 per hour and
received a cheque every two weeks. While employed by SRC, the
appellant stated she worked 8 hours per day, 7 days a week, with
minor exceptions and estimated she was absent from work only 2-4
days. Although paid at an hourly rate, Jassal used picking cards
so SRC could keep track of the amount of berries picked and/or
the number of flats that had been filled. Workers took berries to
a van driver and/or Shindo who weighed the container and then
punched a hole in the card assigned to a particular worker. At
night, the picking cards were collected and then handed back to
the relevant worker the following morning. The appellant did not
return to work for SRC in 1997 nor did she seek employment in the
agricultural industry thereafter. In 1998, she began working at
an industrial business in Burnaby and is still employed there.
The appellant's agent referred her to a copy of a cheque in the
sum of $4,000 dated 10.10.1996 - tab 91 -
signed by Manjit Rana and payable to Varinder Kaur Jassal. The
cheque was drawn on the SRC account at the 49th Avenue and Fraser
Street, branch. Another cheque in the sum of $3,000
- tab 90 - was dated 11.11.1996. Again, it had
been signed by Rana and was payable to the appellant. According
to the ROE - tab 88 - issued by SRC on November 20, 1996, the
appellant began working April 21, 1996 and her last day was
November 16, 1996. Her total earnings as stated therein were in
the sum of $7,861. With respect to those statements of fact,
Jassal confirmed the accuracy of the ROE which had been handed to
her by Rana at his Vancouver residence. However, she pointed out
she had not been paid every two weeks as shown thereon. The
appellant stated she maintained her own record of hours worked
and undertook a calculation of total hours and the amount of
wages earned. She did not keep a copy once she had been paid her
final settlement - $459 in cash - on November 16, 1996. She
returned to Rana's house three days later to collect the ROE so
she could apply for UI benefits. Darshen Narang referred the
appellant to an SRC pay statement - tab 89 - indicating her gross
pay was $8,645 with net earnings of $7,459. Jassal stated she
cannot recall having seen that pay statement prior to perusing it
in Court. The appellant and her husband took her ROE from SRC -
and the ROE issued to her with respect to her cleaning job - to
the UI office where he completed the application for benefits -
tab 96 - on her behalf. She signed the application on November
21, 1996 and did not understand - fully - the contents of the
form but was content to rely on her husband's ability to complete
it properly since he had lived in Canada for 10 years. The
appellant was referred to tab 92 containing the Supplementary
Record of Claim, a document used to record an interview conducted
at the HRDC office and stated she recalled attending for that
purpose. The Questionnaire - tab 99 - was signed by her on
November 18, 1999 after it had been completed by her husband who
asked her the questions and then recorded her answers. The
Questionnaire - tab 85 - dated February 14, 1999, was completed
in her own handwriting and she agreed there was no reference
therein to receiving any cash in payment of wages and that her
response indicated she had been paid only by cheque. She thought
she may have omitted to mention the cash since it had been spent
rather than deposited to her bank account.
[29] The cross-examination of the appellant,
Varinder Kaur Jassal was conducted by Selena Sit. Jassal stated
she was 29 and was able to read English but cannot understand
fully the sense of all the text. She finished Grade 12 in India
followed by two years of a three-year Bachelor of Arts program at
a college. As a result of not fulfilling the required study,
Jassal stated her only certification of education is for having
attained Grade 12. At college, she studied history, political
science and other subjects; the language of instruction was
mainly Punjabi and only one English textbook was required during
pursuit of her university-level studies. Jassal stated that
notwithstanding her advanced education, she still did not
consider herself to be fully fluent in English, particularly in
her ability to read and write and had failed her English course
while at college. Her husband - Karamjeet Singh Jassal - can
read, write and speak English reasonably well and had completed
Grade 11 in India. In Canada, the appellant studied English
through a program of ESL classes for immigrants. She attended two
or three days per week for two months. The appellant acknowledged
her signature on her Notice of Appeal - tab 108 - but advised it
was written by her husband. The appellant recalled attending the
HRDC interview - tab 92 - on October 22,
1997. She was accompanied by her husband who read the written
warning on page 1 - concerning penalties for knowingly making
false or misleading statements - and explained it to her in
Punjabi. The appellant stated her mother-in-law had advised her
about the UI system in Canada including the need to work 26 weeks
in order to receive benefits. She denied counsel's suggestion
that she had mentioned this specific period when asking Shindo
for a job. However, after hearing counsel read certain answers to
questions put to her at Discovery, Jassal conceded she had
informed Shindo that she needed 26 weeks of work because she
wanted to be eligible for UI benefits and added that she must
have misunderstood counsel's earlier question. The appellant
reiterated that Shindo had driven her to work - in a white van -
on April 21, 1996, her first day of employment with SRC.
Counsel advised Jassal that SRC records indicated Shindo's first
day of employment was May 12, 1996. Jassal responded by
confirming it was Shindo who had driven her to work that day but
pointed out SRC owned 3 vans so there had been other van drivers,
including Bant and Binder Chahal. During the interview - tab
92 at Q. 10 - the appellant identified Shindo as the person who
had driven her in a van "most all times" and Harjit Gill as the
bus driver. In the Questionnaire - tab 85 - the written answer to
the last question concerning details of transportation to the
work site was "van and bus - Harjeet and Shindo" without any
reference to Bant and/or Binder Chahal. Jassal explained she must
have misunderstood that question as she had 4 drivers during her
employment with SRC and agreed she had earlier stated - tab 99,
Q. 8 - that she had "three different drivers" but in doing so had
probably forgotten about Bant. Counsel advised the appellant that
according to several documents obtained from SRC records, the
last day of work for Shindo was October 26, 1996 and Harjit
Gill had been laid off on October 5 and could not have driven her
to work after those dates. As a result, counsel suggested the
appellant was now inventing other drivers - such as Binder Chahal
- to cover that gap. Jassal stated it was Chahal who had driven
her to work in a khaki van on her last day - November 16 - and
had picked her up at her residence. No one else at her house
worked for SRC but - on occasion - a couple of "turban guys" who
lived nearby would also be picked up in front of her place.
Concerning her work at the beginning of her employment, Jassal
stated she seeded for two weeks at a Richmond farm by making rows
with a special tool to soften the dirt and inserting seeds and
watering them. She advised counsel she had picked only
strawberries and blueberries despite having described in the
Questionnaire - tab 99, Q. 42 - her berry
picking as including "strawberrys, ras, blue". The vegetable work
at the end of the season including packing produce into large
boxes and packaging was performed outside in the field rather
than inside any structure. Most days were the same; harvesting
began early in October and different vegetables were picked every
day. Cauliflowers were cut from the stem and zucchini and peppers
were cut from green vines and radishes and potatoes were dug out
of the ground. Counsel advised the appellant the Minister relied
on a report prepared by an agricultural expert that vegetable
harvesting season in the Richmond area had concluded on October
15 for peppers and zucchini and November 1 for radishes and
potatoes. Jassal replied that she was picking vegetables on
November 15 and November 16, working a full 8-hour day, as usual.
At Q. 17 of the Questionnaire - tab 99 - Jassal's answer
about hours of work was "8 to 10 hours a day". At the HRDC
interview - tab 92, Q. 14 - she had stated the work day was
"usually 7-8 hours". The appellant explained the discrepancy by
advising the Court she had no idea of the purpose of said
interview and - as a result - her answers may not have been
accurate. She acknowledged having missed some days of work,
probably to attend her doctor's office, do some banking or just
rest. However, she stated that work continued at all times even
if it was raining heavily. Counsel advised her that at
tab 99, Q. 26, she had answered that she missed work
"once in a while" due to bad weather. The appellant stated that
particular answer was not correct and that if it rained the
vegetables in the boxes were protected with plastic covers. The
appellant did not accept counsel's suggestion that it had snowed
on November 16th but recalled frost on the ground some mornings
during the time she worked at the Min Ho vegetable Farms. At
tab 99, Qs. 36-41, inclusive, dealt with the use of picking
cards and the separate responses of the appellant - taken in
total - indicate she had not used any picking cards and that she
had been paid an hourly rate. The answer to Q. 41 "Did you use a
picking card for every day of work?" was "No - Never". The
appellant admitted that picking cards had been used and that - at
the end of the work day - workers handed these cards to Shindo or
whomever was their van driver. She recalls different coloured
cards were used but she had never taken any picking cards home
with her as she was always paid on an hourly basis and did not
have to calculate any other form of payment of her wages.
Although there had been no mention of cash payment in the
Questionnaire - tab 85 - the answer to Q.
33, tab 99, referred to payment by "cash and cheque" and the
reply to Q. 34 was "$7,000.00 by cheque and $459.00 by
cash". At the HRDC interview - tab 92, Q. 17 - the appellant
admitted she had stated that she had been paid "always by cheque"
and had not mentioned receiving any cash. Counsel asked "Why not
mention cash?" Jassal's response was to assert that her husband
had obviously erred in interpreting her answer to that question.
Counsel referred the appellant to her pay statement
- tab 89 - wherein her net earnings
were stated as $7,459 and suggested the appellant
- later - decided to add a cash payment in the
sum of $459 in order to make it conform with the pay statement.
Jassal denied that she had become aware of the existence of this
statement through the disclosure process in the course of the
litigation and repeated that she has a clear, current
recollection of receiving the sum of $459 in her hand.
[30] In re-examination, Varinder Kaur Jassal
stated the men or "turban guys" she referred to in her answers
did not live in her premises where 3 people lived in the basement
and 6 or 7 people lived upstairs. She was the only resident
employed by SRC but the men who were picked up in front of her
house did work for SRC and lived nearby. She confirmed that
Shindo not only drove her to work the first day
- April 21 - but remained at the field weighing
berries and supervising and instructing workers. In filing her
income tax return for the 1996 taxation year, Jassal stated she
had T4s from SRC and Unico - her other employer for the cleaning
job - and would have been aware of the gross and net
earnings from each employment.
HARBANS KAUR KANG
[31] Harbans Kaur Kang testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2356(EI) - is
Exhibit R-22. The Minister decided the appellant had been
employed under a contract of service with SRC for 17 weeks from
June 23 to October 19, 1996 and that her insurable earnings were
$6,071. The appellant's position is that she started work on June
16, 1996 and earned $6,800. The Minister relied on the following
assumptions of fact set forth in paragraphs 4(j) to 4(p),
inclusive, of the Reply to the appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer before
June 23, 1996;
l) The
Appellant's spouse, Harbhajan S. Kang, commenced work for the
Payer on June 21, 1996 and drove the van that picked up other
farm labourers;
m) the Appellant
commenced working for the Payer a few days subsequent to her
spouse's first day of work and the Appellant commuted to the
various farms in the van driven by her spouse;
n) the records
provided, for example, the ROE, the T4 slip, the cancelled
cheques and the Employee Earnings Record were fabricated to give
the appearance that the Appellant provided services for the Payer
before June 23, 1996 and these records were a sham;
o) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
p) the
Appellant did not work for the weeks reflected in the ROE.
[32] Kang testified she came to Canada 10
year ago, arriving in Montréal. After two months, she
moved to Surrey, B.C. and the following summer began working - on
farms - for a labour contractor. In India, she had not
attended school nor worked outside of the family home. In the 6th
month (June) of 1996, she began working with Bant, Shindo and
Rana (SRC) and her husband, Harbhajan Singh Kang (not a
party to the within appeals) was employed - later - as a driver
and her daughter-in-law
- Varinder Kaur Kang - also came
to work there. The appellant stated she rode to work in a red van
and her first task was to pick strawberries which were placed in
buckets. Picking cards were used so supervisors could record the
volume and/or weight of berries picked. The containers were
handed in at the scale station and after weighing, the picking
card was punched to record the weight of the berries and the card
was returned to the worker to be presented again during the next
visit to the scale to empty the container. Strawberry plants were
in rows and the berries were placed - first - into buckets and
then into flats which were taken to the scale for weighing. The
appellant stated it required 3 to 3.5 buckets to fill a flat
(made of plastic) and she could carry two flats at a time to be
weighed. Each night, workers handed in their picking cards to the
driver. Kang stated her first picking work was done on the Khakh
Farms at Chiliwack and that there were another 15 to 18 workers
performing the same task. After one month of picking
strawberries, the appellant related that the raspberry crop was
ready and once that was finished it was time to pick blueberries.
She finished off the growing season by working on a vegetable
farm. Her driver on the first day of work and for the rest of
that week was Master. Her only other driver was her husband,
Harbhajan Singh Kang, who drove her to work most of the time
thereafter. The appellant stated her husband had attended school
in India but she did not know the level of education
attained.
[33] Cross-examination of the appellant -
Harbans Kaur Kang - was conducted by Johanna Russell. Counsel
referred the appellant to - Exhibit R-22, tab 94 - an Application
for Unemployment Benefits - dated April 1, 1997 - and bearing the
signature "HK". Kang identified those initials as her signature.
Following her layoff on October 19, 1996, the appellant and her
husband went to India for a 4-month vacation. The
application for benefits was made after returning to Canada. Kang
did not recall who assisted her in completing the form but stated
it was not Varinder Kaur Kang. She recalled attending two
interviews at an HRDC office and accepted counsel's statement
that the dates were June 18 and June 20, 1997, respectively.
The interviewer on each occasion was Ted Bowerman and the
appellant recalled a woman (Kal Brown) acting as a
Punjabi/English interpreter during the interviews. Kang stated
she did not remember details of those interviews but had spoken
the truth when answering questions put to her by the HRDC
official. During the interview on June 18, 1997 - tab 88 - the
appellant was asked who completed the application for benefits
and the response recorded was "My daughter-in-law Berinder"
(Counsel for the respondent and Darshen Narang, agent for this
appellant agree the reference - as recorded - was to
Varinder (Kaur) Kang). The appellant pointed out that
she had applied for UI benefits the previous year as a
result of working for another labour contractor, so was familiar
with the procedure to follow. When applying for benefits - on
April 1, 1997 - the appellant and her husband lived in the same
residence as her son Baldev Singh Kang and his wife, Varinder
Kaur Kang. Although Kang cannot read nor write Punjabi, her
husband is able to do so and she thought he had probably started
- but did not finish - Grade 10. She does not speak, read nor
write English and had not attended any ESL classes. In her
opinion, her husband cannot speak, read nor write English nor had
he studied English after arriving in Canada. The appellant
identified the initials "H.K." at the foot of the Questionnaire
(tab 86) - dated March 14, 1999 - but
cannot recognize her husband's signature in his capacity as
witness. She cannot recall who handed her the form so she could
sign it by writing her initials "H.K." She also identified her
signature - H.K. - on the last page of the Questionnaire -
tab 110 - but cannot read the signature - in English - purporting
to be that of her husband. The appellant stated she found out
that Bant was hiring workers. She had not known Bant prior to
working for SRC nor had she met Shindo or Manjit Rana. Counsel
referred the appellant to two questions and answers (middle of
page 5, tab 88) arising from her HRDC interview, as
follows:
Q. You just said you did not know Manjit?
A. Yes, I do know Manjit.
Q. Why did you lie?
A. Because we were dealing with Bahnt [sic] but
realized after that we were dealing with Manjit.
[34] The appellant stated she did not - and
does not - know Manjit Rana. She never met him even though she
told Ted Bowerman otherwise during the HRDC interview. Describing
her farm work to counsel, the appellant stated she had worked
very hard picking strawberries for one month, then raspberries
for one month, blueberries for 7 or 8 weeks and finished the
season by working at a vegetable farm. Concerning the use of
picking cards, Kang stated the colour of picking cards varied
between farms but the purpose remained the same and they were
punched and/or marked after berries were weighed. She retained
the card during the day and returned it to the van driver prior
to boarding for the trip home. Often, her husband was the van
driver in charge of collecting picking cards from his passengers.
Kang stated she received a new picking card each day and the van
driver handing out cards to the workers would write the name of
the specific worker at the top of the card. The picking cards had
3 separate sheets so copies could be kept by SRC and/or the
farmer. Kang stated she used a picking card every day regardless
of the type of berry picked but had not seen any copies of her
cards within her own residence and had not kept a copy for her
own records. In any event, the appellant recalled there were no
picking cards handed over to Bant and/or Shindo at the end of the
season prior to settling up the final amount owed to her for
wages. Kang stated her husband worked only as a driver and had
not picked any berries. Counsel pointed to certain questions
asked of the appellant and answers provided in writing at
Qs. 36, 37, 40 and 41 of the Questionnaire - tab 110 - that
had been signed by her and returned to CPP/EI appeals. In those
answers, Kang had stated that no picking cards were used by her
because she was paid hourly and that the volume of her work was
not recorded by using picking cards. On four separate
occasions therein, the appellant's responses were that no picking
cards were used by her in the course of her employment with SRC.
The appellant stated she had used picking cards as described in
the course of her testimony. She stated she always worked 8 hours
per day, 7 days per week and took off only one day during the
entire season. She maintained she was paid $7 per hour for her
work. Counsel referred the appellant to the answer provided in
the Questionnaire - tab 110, Q. 17 - about the
number of hours worked each day. The answer was "sometime 7,
sometime 9". The answer to Q. 25 whether she had missed any days
of work was "No." Earlier - in responding to Q. 23 - about
whether she worked on Sundays, the answer provided was "some
Sundays." With respect to the ability of Harbhajan Singh Kang -
the appellant's husband - to understand English, counsel referred
the appellant to a document - Exhibit R-5, tab 194 - indicating
her husband had attended English language classes at Kwatlun
College from October 27, 1997 to February 20, 1998 Monday
through Thursday between 9:00 a.m. and 3:00 p.m. and
during the morning of every second Friday. The appellant replied
she did not remember if her husband received this language
instruction. As for the timing of their employment with SRC, Kang
recalled she had started work "a day or so" before her husband
but recalled they had been laid off the same day. After riding to
work a few days with Master, her husband was her driver for the
rest of the season. He always drove a red van that he parked at
night either outside their house or nearby. Counsel referred Kang
to answers given by her during Discovery in November, 2001, (p.
29, Qs. 223 and 224) where she stated her husband had
started work - at SRC - two months after her. Again (p. 35, Qs.
268 and 269), the appellant was asked about her husband's first
day of work and her answer was unequivocal that he started work
two months after she had begun working there. Kang denied having
made that statement at Discovery even after counsel pointed out
the question has been phrased in such a way as to relate to a
previous statement made by Kang - during an HRDC interview - that
she and her husband had both started work the same day. Counsel
referred the appellant to the ROE (Exhibit R-1, tab 23, p. 45) of
her husband - Harbhajan Singh Hang - issued by SRC indicating he
had started work on August 25, 1996 and had worked until October
19, 1996. The appellant was also shown the Statutory Declaration
- Exhibit R-5, tab 168 - of her
husband - dated May 29, 1997 - in which he stated he had begun
work in the "3rd week of June". The witness replied that to the
best of her recollection, her husband started working with SRC
about June 16, 1996. Counsel advised the appellant that during
the HRDC interview of June 18, 1997 - Exhibit R-22 at
tab 88, p. 2 - she had informed the interviewer
- Ted Bowerman - that her husband had been
hired first and then she went with him to work. Kang replied she
could not explain those discrepancies other than to confirm that
she had worked very hard and it was difficult to remember details
from "a long time ago". In the Questionnaire - tab 110 at
Q. 5 - the question was how the appellant got to work each
day and the written response was she went by "van or bus". At Q.
7, "sometime van or bus" was the answer provided to a question
asking specifically whether she had been picked up by van or by
bus. The appellant repeated her previous testimony that she had
never ridden to work in a bus and that her sole method of
transportation to and from work was in a red van driven by her
husband or the white-cream van driven by Master. The answer
provided in the Questionnaire - tab 110, Q. 8 -
concerning the identity of the van/bus driver was that it was
"always different driver". In 1996, the appellant and her husband
had a joint account (copies of statement at tab 97) at Canada
Trust in Delta, B.C. but her husband handled all transactions.
The appellant stated she was paid a total of $6,000 by SRC for
her wages and thought it had been paid in two cheques. She was
referred to a copy of a cheque
- tab 91 - in the sum of $6,000 drawn
on the SRC account at TD bank. The cheque is dated 28.9.1996
(September 28) and the stamp indicates it was deposited on
October 17, 1996 into an account at the Royal Bank. The
signature "H.K." appears on the copy of the back of said cheque.
The appellant stated the second cheque that she received was
about $800 or possibly $880. She was shown a copy of a SRC cheque
- tab 90 - dated 19.10.1996 in the sum of $879 with a stamp
indicating it had been deposited to their Canada Trust account on
October 24. The ROE - tab 92 - stated the appellant's insurable
earnings were $7,000. The amounts shown on the appellant's pay
statement - tab 93 - for her gross
earnings and net earnings were $7,000 and $6,071, respectively.
Counsel asked Kang why she would have been paid a total of $6,879
- as net earnings - when her pay statement showed she was
entitled to only $6,071. Kang surmised that the overpayment
probably resulted from the fact that Bant often drank too much
and made mistakes when calculating numbers. However, in her
opinion, any so-called excess payment amounted to only $79 as she
had been owed the sum of $800 in wages as at the date of her
layoff. Counsel referred the appellant to answers given at
Discovery - p. 42, Qs. 317-327, inclusive - where Kang
had stated that she had been overpaid $800 but that sum had been
returned - later - to Bant in order to correct the
error. Referring to the statement concerning the Canada Trust
joint account - tab 97, second page - counsel pointed to a
deposit - dated October 17, 1996 - in the sum of $8,199 and asked
Kang whether that sum included her cheque for $6,000. Kang
replied that she did not know. On October 17, two
withdrawals - totalling $4,000 - were made from that account and
on October 24 a debit memo indicates the further sum of $10,000
was taken from the account. The appellant stated a total of
$17,700 was taken from their joint account in order to travel to
India and remain there for several months. Kang explained that
she had informed Bowerman during the interview- tab 88 - that she
had not received any money for her work because she had not seen
those cheques for $6,000 and $879 until they were shown to her at
that time. She received a T4-1996 - tab 101 - which she
used to file her income tax return.
[35] Harbans Kaur Kang was re-examined by
her agent, Darshen Narang. Regarding the Questionnaires - tabs 86
and 110 - the appellant stated she does not know who completed
those forms on her behalf nor does she recall the circumstances
leading up to her placing her signature thereon. The appellant
cannot count nor tell time by reading a watch or clock. In India,
she lived in a village and rarely travelled to a larger city. She
did not conduct any banking even though she held a joint account
with her husband and attended with him only if it was an
important matter to be transacted. At Discovery - on December 21,
2001 - she told the examining counsel that although the sum of
approximately $800 had been returned to Bant, she had played no
part in any return of any amount and does not comprehend the
difference in numbers. She is able to trace lines sufficiently to
sign documents with her signature - H.K. - but does not
appreciate the nature of what she has been requested to sign. The
appellant stated that despite several inconsistencies arising in
the course of proceedings, she had spoken the truth about the
hard work performed for SRC.
JASWINDER SINGH BASSI
[36] Jaswinder Singh Bassi testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2359(EI) - is
Exhibit R-11. The Minister decided the appellant had not been
engaged in insurable employment with SRC from May 19 to December
28, 1996. The appellant's position is that he was employed
pursuant to a contract of service during this period and had
insurable earnings in the sum of $4,557. The Minister relied on
the following assumptions of fact set forth in paragraphs 4(j) to
4(n), inclusive, of the Reply to the appellant's Notice of
Appeal:
j) the
Appellant gave conflicting statements to authorities with respect
to the method of pay and the timing of same, the duties of
employment, the days and hours of work, the location of the
farms, the period of employment, the identity of fellow workers
and the transportation method;
k) the
Appellant was out of the country from October 8, 1996 to
November 27, 1996;
l) the
records provided, for example, the ROE, the T4 slip, the employee
earnings record, in regards to the Appellant, were fabricated to
give the appearance that the Appellant worked for the Payer and
these records were a sham;
m) the Appellant
required the weeks reflected in the ROE to qualify for
unemployment/employment insurance benefits;
n) the
Appellant did not perform any duties for the Payer during the
Period.
[37] Jaswinder Singh Bassi testified he
arrived in Canada - from India - with his parents and a brother
in January, 1991. His sister sponsored their immigration. He
completed Grade 10 in India but did not pursue further education
- including ESL classes - in Canada. During his schooling, he
studied English - as a course - beginning in Grade 6 and also
studied Hindi for 6 or 7 years. He is able to read and write in
Punjabi, and can read some Hindi but cannot write in that
language. He stated he is unable to speak, read or write English.
In India, he worked on a farm owned by his family. In 1991, the
appellant worked for a labour contractor performing tasks on
various farms and - in 1992 - was employed as a construction
labourer. Following the end of the farming season in 1991, the
appellant collected UI benefits but ill health prevented him from
working a sufficient number of weeks in 1992 in order to qualify
for UI. He was unable to work for the next two years and was
supported by his family. During some period in 1995, he stated he
was hired by Shindo - who was operating a labour contracting
business - to do farm work. In 1996, he began working for SRC -
on May 19 - and remained there until July 14. He went back to
work for SRC on December 1 and worked until December 28. In the
interim, he worked at another farm from July 15 until shortly
before leaving for India on October 8. He returned to Canada on
November 17. The appellant recalled his first day of work
involved weeding and digging. Shindo drove him to work that day
as well as on his last day of work - December 28 - at which time
he had been picking carrots, turnips and radishes. During the
berry picking season, he rode to work in a yellow bus driven only
by Harjit Singh Gill. At other times, he went to work in a red
van and/or grey van. While working for SRC in 1996, the appellant
lived in a basement suite with his parents in Vancouver. His
mother - Taro Kaur Bassi - also worked for SRC and is a
co-appellant in the within appeals. For part of the time, he and
his mother rode to work together, leaving home at 6:00 a.m. and
returning home 12 hours later. The initial weeding work done
at a farm in Chiliwack lasted two weeks. Then, the
strawberry crop was ready and he picked for 3 weeks before
picking the next crop - raspberries - until he left his
employment at SRC on July 14. The usual work day was 7-8 hours
including the period following December 1 when he had worked on a
vegetable farm - Min Ho Farms - in Richmond and at another farm
in that area he knew was owned by a "white person". Bassi stated
he was paid $7 per hour for all work done and was never
remunerated on the basis of piecework even though he used picking
cards to record the weight and/or volume of product picked. He
stated his hours of work were recorded - by his brother - in a
book and picking cards were returned to the driver at the end of
the working day. Following his layoff, he received a cheque in
the sum of $3,000 in payment of wages and also received an amount
in cash. Darshen Narang referred the appellant to a Questionnaire
- tab 86 - dated May 12, 1999. Bassi identified his signature and
stated his ability in English did not permit him to answer the
questions so Lakhbinder Kalair completed the form on his behalf
and witnessed the appellant's signature. The appellant identified
his signature on the last page of the Questionnaire - tab 111 -
which was completed with the assistance of his brother who
interpreted the questions into Punjabi. Bassi states the answers
provided are true and has a specific recollection of his brother
translating the admonition that he had to "certify that the
answers given in this Questionnaire are true in every respect"
prior to signing the form. As to the manner and amount of payment
of wages, the appellant's answer - Q. 34 - is that he received a
cheque in the sum of $4,000 and $50 in cash. Bassi stated that
this response was not correct because he had received more than
$50 in cash and assumes his brother must have misunderstood his
answer since he did not review each question and answer with his
brother prior to signing the form. Bassi estimated he received 4
or 5 cash payments - each in the sums of $200 or
$300 - from Shindo, for a total of $1,050. In response
to Qs. 36 and 37 regarding picking cards, the appellant's
recorded answers are that no picking cards were used to record
hours or volume of work. The appellant explained he answered
those questions in that manner because he had not retained those
cards and once they had been handed over to the driver, he had no
record of the information contained thereon. Narang pointed out
to Bassi that - at Q. 35 of the Questionnaire, tab 111
- he certified the answer that he had been paid by Manjit Rana.
The appellant replied this was - again - a mistake that his
brother had made when filling out the form. Bassi stated he knew
Rana was Shindo's brother and was aware SRC was owned by Rana.
Although he had worked for Shindo in 1995, it was his
understanding that the business was now operated by Rana through
the corporation, SRC and that Bant also worked for the company.
In 1995, he had been paid by cheque at the end of the season and
could not recall whether he had received cash advances in the
interim. Bassi identified the ROE - tab 92 - issued by Kalair
Farms for the period July 15 to October 5, 1996. The ROE -
tab 89 - issued by SRC was handed to him by Shindo. Bassi
identified his signature on the application for benefits - tab 90
- dated January 14, 1997 and stated his friend - Lakhbinder
Kalair - assisted him in completing the document by asking
questions and then writing down the answers. The appellant
recalled attending an interview - at an HRDC office on December
9, 1997 - and that a Punjabi-speaking interpreter (Kal
Tarlal) was present. At that time, he explained his inability to
work for two or three years was due to kidney failure and the
need to attend dialysis three times per week. Bassi attended
another HRDC interview - tab 99 - and
Kal Tarlal acted as interpreter. He could not recall whether
the warning printed in large print had been read out to him.
[38] The appellant - Jaswinder Singh Bassi -
was cross-examined by Selena Sit. When applying for UI benefits -
tab 90 - the appellant had marked a box (p. 3, area F) indicating
he had an "incomplete" elementary education. He explained that -
in India - schooling is carried out in a block from Grades 1 to
10, inclusive, and is not considered as higher education.
Although he speaks some English, the appellant stated he cannot
read English and even when using credit cards to make purchases
often requires assistance from the retail clerks. In order to
obtain his B.C. Driver's Licence, he had to pass a written test
but could not recall whether he had been assisted by a Punjabi
interpreter and agreed it would have been difficult for him to
pass an examination - in English - without help since the
questions on the test were not translated into Punjabi. Despite
being in Canada for 13 years, the appellant has not attempted to
improve his English language skills through any course of study.
However, his brother
- Kulwinder Singh Bassi - is
fluent in oral and written English and completed the
Questionnaire at tab 111. Counsel referred the appellant to the
notes of interview (Supplementary Record of Claim) dated December
9, 1997 - at tab 103 - and to the last page thereof following the
paragraph headed Declaration & Signature. The appellant
stated he did not recall the contents having been read to him but
identified his signature. The interview was conducted at an HRDC
office by Michel Fontaine and the questions and answers were
translated from Punjabi to English by Kal Tarlal, another
employee of HRDC. The appellant agreed he had signed his name at
the bottom of each page of the Report of Interview - tab 102 -
after the contents had been reviewed with Kal Tarlal. In
June, 1995, he received a kidney transplant and had to attend
subsequent medical appointments for a certain period thereafter.
In 1995, his mother - Taro Kaur Bassi - had
arranged for him to work at SRC but - in 1996 - the appellant
stated he received a telephone call from Shindo asking if he
wanted work. In the Questionnaire - tab 111, Q. 2 - in
response to a question about how he found out about the job with
SRC, Jaswinder Singh Bassi answered "I met Shindo Sran
[sic] at Sikh Tempel [sic] and asked about
work". Counsel referred the appellant to answers given by him at
Discovery on December 20, 2001, where he stated he and his
mother both started work the same day, May 19, 1996. Bassi
responded that he did not recall the first day he started at SRC
but had not worked there between July 15 and November 30 because
he worked for Kalair Farms - which was closer to his
residence - until October 5, three days prior to leaving for
India on a holiday. The appellant is not related to Sohan Kalair
- owner of Kalair Farms - who had come from the same village
in India as Taro Kaur Bassi. In that sense, Bassi explained he
referred to Sohan Kalair as "Uncle" when completing the
application for UI benefits - Q. 38 - but there is no blood
relationship. While in India, he was married, although that
had not been his intention prior to departure. On December 1, he
went back to work for SRC after having telephoned Shindo the
night before and inquiring about the availability of farm work.
Bassi said Shindo advised him she had some work on "two farms in
Richmond". Counsel inquired about his alleged first day of work
on May 19, 1996. Bassi stated he had ridden to work - with Shindo
- in a red van but cannot recall whether his mother - Taro Kaur
Bassi - always went to work in that vehicle because sometimes
workers were dropped off at one farm and the rest continued on to
another location. Bassi stated Shindo had also driven him to work
in a grey van but he did not pay much attention to the colours of
the vans or how often each one was used. The appellant agreed
that at p. 29, Q. 240 of his Discovery, he had stated his best
recollection was that Shindo had driven only a red van but added
that his present recall leads him to believe that Shindo drove
two vans. During the berry picking season in June and up to July
14, Bassi - and his mother - rode to work in a yellow bus driven
by Harjit Singh Gill. Bassi stated the bus was always driven by
Gill who had not driven him to work in a van during the period
when he was weeding - at the start of his employment with SRC -
or working on the vegetable farms in December. Bassi conceded
that at Discovery - p. 28 - he had stated that Gill had driven
him to work - once - before the start of berry season. While
working on vegetables, Bassi recalled Shindo was his only driver
and that she drove - mostly - the red van but "possibly the grey
one, but only once". He acknowledged that at Discovery - p. 31,
Q. 260 - he stated Shindo had driven only the red van during this
time. Counsel pointed out to Bassi that according to various
documents and statements received from Shindo, her last day of
work - at SRC - was October 26, 1996. Regarding work done
following May 19, Bassi recalled weeding strawberry plants by
using a special hand tool and worked with a varying group of
10-12 workers for about 3 or 4 weeks until that task
was finished. The work was done on farms at Chiliwack and
Abbotsford. Strawberry season began on June 15 or 16 and
- two weeks later - the raspberry crop
was mature and he picked raspberries until July 14 when he
left to work for Kalair Farms. Counsel referred Bassi to notes
taken by Michel Fontaine - tab 103 - where - at Q. 7 - the
answer recorded concerning the type of work performed for SRC
included Bassi's statement that - in May - he had planted
cauliflower for "about 3 days". Bassi replied that answer may be
correct but - today - could recall weeding during the first part
of his employment. While picking strawberries and raspberries,
Bassi used picking cards and did not share a card with any other
worker. Berries were placed into his own flat which was taken to
the truck/weighing station and his card was punched to record the
result. The picking card was in triplicate and all
three copies were handed to the driver at the end of the
day. At Qs. 36, 37 and 40 of the Questionnaire - tab 111 - the
answers provided were clear that Bassi had not used picking cards
for any purpose including recording hours or volume of work or at
all. As for working at the "Chinese Farm" in Richmond in late
December, counsel advised Bassi that her information revealed
this farm had not grown potatoes in 1996 and that the last sale
of produce was on November 24, 1996. Bassi reiterated that he had
worked on farms until December 28, 1996 and that the crops were
carrots, potatoes, turnips and radishes and did not accept
counsel's contention that in the opinion of an expert - relied on
by the Minister - the season for said vegetables had ended on
November 1 because he had washed and packed vegetables 7
days a week in December except for one or two days off during
Christmas. During the interview with Fontaine - tab 103 at
Q. 22 - the appellant's recorded answer is that
he worked "Monday to Saturday in December" but had worked 7 days
per week while picking berries. The appellant stated his current
best recollection is that he worked 7 days a week in December but
may have taken off one day after the first two weeks. In the
Questionnaire - tab 111 - at Q. 25 the response provided was that
the appellant could not remember whether he had missed any days
of work. According to the appellant's pay statement - tab 93 - he
worked 91 hours for the pay period ending December 28. Bassi
stated his work during this time was performed inside a shed and
also outside. The shed had wooden panels on the side which did
not extend to the roof. He washed carrots and radishes inside
this structure using a hose attached to a tap. He recalled there
was snow near Christmas but could not recall snowfall earlier
which had caused any cancellation of work. Bassi had consented -
tab 101 - to a release of information authorizing Medical
Services Plan of British Columbia (MSP) to issue details of
medical services provided to him during 1996. A printout - tab
106, pp. 15 and 16 - showed Bassi visited a physician
on May 21 and on May 23 attended the office of his kidney
transplant surgeon. The record also revealed a visit to his
family doctor on July 12 and another on December 3. On
December 5, he had an appointment with his kidney specialist. In
response to counsel's question as to how he was able to attend
these medical appointments and still work, Bassi replied he would
take his car to work and then leave for two to three hours in
order to visit the doctor and would work later to make up for
time missed. Counsel pointed out that the office of the kidney
specialist was in downtown Vancouver and the appellant had been
picking berries in Chiliwack, a return trip of nearly 4 hours or
more. Bassi stated in that situation, he would see the doctor in
the morning - as close to 8:00 a.m. as possible - and then
drive to work afterwards arriving after noon. While working late,
other pickers were also present, particularly those who lived in
the cabins on or near the fields and did not have to travel home
each night. In that scenario, Bassi agreed that no other SRC
worker was present and no one from SRC was on site to supervise
his work but stated Shindo had given him permission to make up
time when he had to go to his medical appointments. The farm
owner usually worked late - until 8:00 or 9:00 p.m. - and Shindo
was satisfied he made up the missed hours. As for making up for
time lost due to appointments in December, Bassi stated Shindo
waited for him and then drove him home. Concerning the vehicle -
a 1985 Toyota Corolla - used to drive to work on occasion,
counsel referred Bassi to a document - Exhibit R-8, tab 6 -
issued by Insurance Corporation of British Columbia (ICBC)
indicating said vehicle was insured by Kulwinder Singh Bassi.
While responding to question 5 in tab 111, the appellant's answer
- as recorded by his brother - is that he arrived at the job site
each day "by contractor's van or bus" without any mention of
using a private vehicle. Bassi replied that this was an oversight
attributable to an error on the part of his brother who should
have included information about the method of travel during those
days when he had to attend a medical appointment. Counsel pointed
out to Bassi that in responding to the Questionnaire
- tab 86 - concerning transportation
to work, the answer given was that the contractor provided either
a van - driven by Shindo - or a bus driven by Harjit Singh Gill.
Bassi stated the blame should fall on his friend - Lakhbinder
Singh Kalair - who assisted him in completing that form, for not
recording the answer correctly to make it clear that a private
car had been used - on some occasions - to go to work. Bassi
insisted he had raised - specifically - the matter of the car
usage with Kalair who had - somehow - forgotten to
write it down. Counsel returned to the issue of medical visits in
December. Bassi stated that when he worked late, even though he
had testified - earlier - that Shindo
stayed behind to supervise him, he had intended to say that she
drove all the other workers home and returned to the farm to
supervise his work. Also, she did not have to drive him home
because he had used his brother's car to get to the job. At
Q. 30 of tab 111, the answer provided was that Manjit Rana
was Bassi's supervisor. Bassi stated that was not correct during
1996 although Rana had fulfilled that role during 1995. The
appellant - again - attributed the error to his brother. At the
HRDC interview on December 5, 1997, Bassi had been shown a
photograph of Manjit Rana and had responded by declaring he had
never seen that person. Bassi stated he did not recall that
exchange but noted that a person can look much different
depending on the nature and quality of the photo. In 1996, Bassi
stated he received a cheque and some cash in payment of wages,
although - at tab 86 - he had not mentioned any cash receipt even
though the question specifically referred to that form of
payment. Bassi stated yet another error had been made by
Lakhbinder Singh Kalair in not recording - faithfully - Bassi's
response. The appellant stated he earned the sum of $4,040 in
1996 and was issued a cheque in the sum of $3,000 with the rest
having been paid in cash. At Q. 34 of tab 111, the answer
provided is that the appellant received a cheque in the sum of
$4,000 and $50 in cash. Bassi replied that he had received $1,050
in cash from Shindo and that the answer was recorded incorrectly
by his brother when filling out that Questionnaire. Bassi advised
counsel a total of $1,050 in cash was received in the course of 3
or 4 payments but he cannot recall the timing of same except
the cash was all received prior to layoff and the cheque was
issued afterwards. At Q. 32 of tab 111, the answer given was
that all payment of wages had been made at the end of the season.
Bassi explained that this misstatement had occurred due to his
brother's inability to comprehend that he had been referring only
to the cheque - in the sum of $3,000 - as being received at the
end of the season. He stated that when he left SRC's employment
on July 14, he had been owed wages which he collected at the end
of December. He had maintained a record of cash payments from
Shindo but lost it when he moved to Surrey at the end of 1997. He
advised counsel he had no record of any cash deposits and was
aware no copy of the alleged $3,000 cheque had been found in any
of the SRC records nor any other proof the appellant had received
such payment. Bassi stated he had no way of proving the payment
other than by his testimony and ability to recall receiving the
cheque and cash. The cheque received from Shindo in January,
1997, was deposited to his CIBC branch. Bassi agreed he appeared
to have been overpaid by the sum of $10 according to the pay
statement issued by SRC. He maintained the only basis on which he
had ever been paid was the hourly rate of $7 and had never been
remunerated based on volume - whether measured by pound or flat -
when picking berries. During the HRDC interview - tab 103 - at Q.
17, the appellant's answer concerning method of payment was
recorded as "Strawberries and Raspberries by the flat". Bassi
stated that answer is not correct. As for the answer at Q. 18
that he had never been paid for his May, June or July work until
his layoff at the end of December, the appellant stated that
answer was not correct as he had been paid some cash earlier than
that. At Q. 32 of the HRDC interview - tab 103 - the answer
recorded is that Shindo gave Bassi a cheque in the sum of $4,000
which he negotiated at CIBC at 49th and Fraser in Vancouver by
depositing the entire amount into his account. Again, his
statement is noted that he "did not receive any other payments
throughout the year", including cash. Bassi stated that answer
was incorrect because the cheque he received was in the sum of
$3,000 and cash had been paid to him from time to time. He stated
he had provided that information to the interviewer but it had
been recorded incorrectly. As recorded by Michel Fontaine on
a report dated December 9, 1997 - tab 94 - of the interview
with the appellant held on December 5, 1997, Bassi had produced a
bank book with an entry of a $3,000 deposit into his account on
January 10, 1997. The notes indicate Fontaine reminded the
appellant of an earlier answer that a $4,000 cheque had been
deposited. Bassi's noted response to Fontaine is that said answer
was wrong because he had received a cheque in the sum of $4,040
but had taken out $1,040 in cash and deposited the balance of
$3,000. Counsel pointed out to Bassi that he had provided three
different versions about receiving payment of wages during the
course of the HRDC investigation and subsequent intervention by
the Rulings Officer and the appeal process to the Appeals
Officer. Bassi stated the version offered in Court was the truth,
namely, he had received a cheque in the sum of $3,000 and $1,050
in cash. Bassi stated that even though an HRDC employee - Kal
Tarlal - interpreted during his interview with Fontaine, she was
not speaking "pure Punjabi but was using lots of English words".
Counsel referred the appellant to copies of bank statements - tab
100 - and to an entry on the third page, dated January 10, 1997,
of a deposit in the sum of $3,000 followed by a withdrawal in the
sum of $3,300 on January 14, 1997. The appellant confirmed the
$3,000 deposit represented the cheque received from Shindo and
explained the withdrawal was made in order to repay his sister
who had loaned him money so he could travel to India in October,
1996. Counsel pointed out his account balance was $13,002.97 on
September 30, 1996 and thereafter was $11,000 - and more - and
asked why he would have to borrow money from his sister in order
to go to India. On September 24, the appellant had withdrawn
$1,500 and another $400 had been taken out on September 27.
Notwithstanding those withdrawals and the large balance in the
account, Bassi stated he had borrowed the sum of $3,300 from his
sister in order to purchase a return airline ticket because he
had been doing a lot of shopping in preparation for the trip and
did not have time to attend at his own bank. Bassi denied paying
any money back to Shindo or anyone at SRC as part of any scheme
or arrangement. In the Questionnaire - tab 86 - two separate
answers stated the appellant's 1996 employment with SRC had been
from May 19 to July 14 and from October 6 to December 28. Bassi
stated those answers are not correct and that the error appeared
to have been perpetuated at Q. 1 of the Questionnaire at
tab 111. In his opinion, his brother - Kulwinder Singh Bassi
- had written those dates in error because it was always apparent
- by referring to his passport - that he left Canada on October
8, 1996 for a holiday to India. With regard to the vegetable
farms, the appellant could not recall whether there were any
residences on the property and was unable to remember if there
were other structures such as greenhouses or small buildings. The
appellant stated he was well aware that - in order to qualify for
UI benefits in 1996 - he needed 18 weeks employment.
[39] The appellant was re-examined by his
agent, Darshen Narang. He stated he had not knowingly or
intentionally misled anyone at HRDC and if the Questionnaire -
tab 86 - had been read back to him by Lakhbinder Singh Kalair, he
would have corrected those misstatements contained therein. He
advised that - at said interview - he handed his Indian passport
to Kalair and it should have been apparent that he was absent
from Canada following October 8, 1996 until his return at the end
of November. He stated he never attempted to conceal his absence
from Canada during this period and cannot explain how this error
was repeated when his brother completed the Questionnaire
- tab 111 - because they were both
living in the same residence and his brother had been provided
with the appellant's passport in order to obtain the correct
dates of his departure and return. Once the form had been
completed, his brother handed it over and he signed it. During
the HRDC interview, he had to ask Kal Tarlal to repeat some
interpretation because he was unable to understand the content
but she would merely offer the same version - in Punjabi - as
before. The appellant acknowledged he was aware that he was
required to speak the truth to the HRDC interviewer. He recalled
the written test for his B.C. Driver's Licence - obtained in 1993
- had been available in Punjabi and his brother had accompanied
him to the motor vehicle bureau in order to deal with clerical
staff. Bassi stated that because he had worked in 1995, he was
aware he needed 18 weeks of employment in order to qualify for
benefits in 1996. In his view, with the work done for Kalair
Farms, he had enough time to qualify but returned to work for SRC
in December because there was work. The appellant stated many
farms did not have any signage to indicate ownership and many of
them looked alike without any specific boundaries. Bassi stated
there had been an earlier mistake concerning previous employment
with another employer but it had been in 1997 - not 1996 - and
the confusion had been corrected when he brought in his pay stubs
to the subsequent interview on December 9, 1997.
TARO KAUR BASSI
[40] Taro Kaur Bassi testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2319(EI) - is
Exhibit R-12. The Minister decided the appellant had been
engaged in insurable employment with SRC for 7 weeks from June 10
to July 27, 1996 and had insurable earnings in the sum of $3,000.
The appellant's position is that she worked from May 19 to July
27 and accumulated insurable earnings in the sum of $3,920 as
stated in her ROE at tab 88 of Exhibit R-12. The Minister relied
on the following assumptions of fact set forth in paragraphs 5(j)
to 5(q), inclusive of the Reply to the appellant's Notice of
Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer before
June 10, 1996;
l) a
cheque dated July 6, 1996 for $3,000.00 payable to the Appellant
was negotiated on December 5, 1996;
m) the Appellant did
not receive any other remuneration from the Payer except for the
$3,000.00 admitted herein;
n) the Payer
did not withhold any amounts on account of payroll deduction or
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip, and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer before June 10, 1996
and that the Appellant was paid in excess of the $3,000.00
admitted, and these records were a sham;
p) the
Appellant required the 10 weeks of insurable employment reflected
in the ROE in order to qualify for unemployment/employment
insurance benefits; and
q) the
Appellant did not work for the 10 weeks reflected in the ROE.
[41] The appellant stated she is illiterate
in Punjabi and English but can recognize some numbers. She
received a $3,000 cheque - tab 90 - from SRC - dated July 6, 1996
- which was negotiated on December 5, 1996. Taro Kaur Bassi
stated she arrived in Canada on January 3, 1991 and had received
no education in India nor attended any ESL classes after
immigrating. Born in 1940, she worked on a family farm in India
owned and operated by her husband, his 4 brothers and her
father-in-law. They grew wheat, rice, peppers and
sugar cane. Currently, she lives in the Surrey area near her two
sons and daughter who sponsored her to come to Canada. The
appellant's first job - in 1991 - was working for a farmer who
was also a farm labour contractor. Initially, the ruling - tab 81
- issued by Janet Mah - a Rulings Officer with CCRA - found the
amount of insurable earnings to be $3,540. The appellant recalled
starting work in the middle of the 5th month (May) and thereafter
worked 7 days a week except for some time off to attend to some
urgent matter. Her first day was spent weeding around strawberry
plants at the Gill Farms in Abbotsford and this work lasted
for about 3 weeks. At a farm in Richmond, she worked planting
cauliflower. One person drove a machine and 4 other workers
followed and inserted small cauliflower and broccoli plants into
the soil. Shindo was her only driver during her employment and
drove her to work on the first day together with 6 or 7 other SRC
workers. The appellant cannot recall whether her son - Jaswinder
Singh Bassi - co-appellant rode with her that day but she
remembered riding with Ajmer Kaur Gill - a co-appellant - and a
female known to her as Gurdev Kaur. She recalled riding to work
with her son on other occasions but the crews were sometimes
divided into teams composed exclusively of males and/or females.
At the Richmond farm, she picked potatoes and placed them in a
bucket. The farm also grew vegetables and turnips and was located
near a river. Three weeks after starting work, the season became
busy and the red van - driven by Shindo - carried
between 15 and 20 workers each day. The appellant stated she was
paid $7 per hour and at the end of each day Shindo or another
driver would tell them the number of hours worked. The working
days ranged between 7.5 hours and 9.5 hours. When hired by
Shindo, the appellant stated she was advised the pay period was
every two weeks but that schedule had not been followed and she
had to ask Shindo for money. One morning - in the van - during
the 6th month (June), Shindo gave her $500 in cash. She did not
see any other worker receiving payment. The appellant did not
sign any receipt and did not keep any personal record.
Taro Kaur Bassi stated Shindo merely handed her the cash,
saying "Sister, take the money". Later, she requested additional
wages from Shindo and - at the end of July - went to work for
Kalair Farms. Although the cheque - tab 90 - is dated
July 6, 1996, it was not received until December when she
attended at Shindo's house in order to collect her final pay and
her ROE (tab 88). During the years 1991, 1992, and 1993, the
appellant worked for farmers and/or labour contractors and was
paid - by cheque - at least once per month. At some point in
1994, she began working for Shindo and considered her the
employer then and again in 1995 and 1996. Other employers had
paid her wages on a regular basis but she had to ask Shindo
"again and again" for money which was not forthcoming until the
end of the season. The cheque - tab 90 - was endorsed by the
appellant and deposited into her account at the TD Bank -
Vancouver - on December 5, 1996. She is certain the cheque
had not been issued on July 6 as she would not have kept the
cheque that long without attempting to cash it. She recalls
quitting her SRC job on July 27 while raspberries were being
picked. Her son - Jaswinder - had left about two weeks
earlier. She states she was not paid every two weeks as shown on
her ROE but did receive a 1996 T4 which was used to file her
income tax return. During her 1996 employment, she was aware that
she required 18 weeks of work in order to qualify for UI
benefits. The appellant identified her signature on the
application - tab 95 - and she provided HRDC with an ROE from
Kalair Farms in respect of that employment where she earned $8
per hour. She attended at the HRDC office and handed her papers
over to a volunteer who helped her to complete the application.
On that form, it was stated that Sohan Kalair was her
brother. The appellant explained that Kalair was not her
biological brother but was considered as a member of her extended
family, although not through any formal adoption. Although
neither Bant nor Shindo were at that office at this time, she
recognized other SRC workers who were also applying for their
benefits. Taro Kaur Bassi recalled attending two separate
interviews at offices of HRDC, one in Burnaby and the other in
downtown Vancouver. Her son - Jaswinder - attended the first
interview - October 29, 1997 - and she identified her
signature on an authorization - tab 91 - to act as her
representative. The notes of her interview - tab 92 - were
recorded on a Supplementary Record of Claim. The pay statement -
tab 89 - issued by SRC shows the appellant's net earnings as
$3,380. The Questionnaire - tab 85 - indicates Lakhwinder Kalair
witnessed her signature and the appellant agreed he probably
assisted her to complete that form. Another Questionnaire - tab
97 - was completed by her younger son - Kulwinder - but she
cannot recall whether he asked her the questions and wrote down -
in English - her responses or just supplied the answers himself
even though he was attending school in 1996 and did not work for
SRC. In answer to Qs. 34 and 35 regarding method of payment the
appellant stated she received a cheque for $3,000 as well as $380
in cash and that it was Manjit Rana who had paid her. Reminded by
her agent - Darshen Narang - of earlier testimony that
she had received $500 in cash from Shindo, Taro Kaur Bassi
confirmed that version was correct but she knew that Shindo and
Rana lived in the same house and that Rana was her employer. In
1995, she worked for Bant/Shindo and since Rana resided in the
same house, she considered there was no real difference. In said
Questionnaire - tab 97 - at Qs. 27 and 28, the answer given is
that the appellant's hours of work were recorded "by employer
& myself". The appellant stated her son - perhaps - made a
mistake when completing the form that way.
[42] In cross-examination by Selena Sit,
Taro Kaur Bassi stated she did not recall details surrounding
completion of the Questionnaire - tab 97 - but agreed her son
- Kulwinder - must have asked her the questions - in
Punjabi - because he had not worked for SRC. Counsel pointed out
that the "second interview" the appellant recalled as having
taken place in downtown Vancouver was not an interview but an
Examination for Discovery. The appellant recalled that during the
HRDC interview - tab 92 - on October 29, 1997 her son -
Jaswinder - interpreted - into Punjabi - the questions asked by
the HRDC officer and then stated - in English - her answers to
said officer who wrote down the responses. Taro Kaur Bassi
confirmed that her first day of employment - May 19 - was spent
weeding around strawberry plants. At the Discovery on June 19,
2001 - p. 6, Q. 44 - the appellant had stated she could not
recall what work she had done on her first day. Although, in the
answers provided by her to a series of subsequent questions, the
appellant had stated she had been picking, she explained that
those answers were not correct because the berries were not ready
for harvest at that time. Counsel referred the appellant to
several instances in her Discovery where she mentioned picking
strawberries at the beginning of her employment. Taro Kaur Bassi
replied that she could not recall giving those answers which were
obviously incorrect because - as an experienced farm worker in
Canada - she knew those berries were not ready at that time.
Counsel suggested to the appellant that she had come to realize
she could not have been picking strawberries on May 19, so had
changed her story to say she was really weeding - not picking -
in order to give credence to her early starting date at SRC. The
appellant responded by stating the evidence at Discovery is not
correct and surmises "it must have been written down wrong."
Counsel referred the appellant to the typed notes - tab 82 - of
Janet Mah - Rulings Officer - concerning a telephone conversation
- June 17, 1999 - between Harby Rai, Rulings Officer and a female
person - Navjot - who had acted as interpreter for the appellant.
Taro Kaur Bassi agreed the number written in the notes was
her telephone number and that Navjot had lived in the basement of
the Bassi family home in Surrey. Near the end of the paragraph
headed Facts, the question was asked "what type of work did you
do on the first day of work?" and the answer recorded - by Mah -
is "I picked strawberries". The appellant replied that she began
picking berries on June 10, 1996. When her son - Jaswinder -
worked at SRC, they usually rode to work together in the van but
she recalled he drove a car sometimes. She has no specific
recollection whether they rode together on her first day. Since
the appellant had stated - in her examination-in-chief - that she
recalled riding to work - the first day - with Gurdev Kaur,
counsel referred her to a List of Employees by Dates Worked -
Exhibit R-1, tab 5 - showing Gurdev Kaur Kandola - employee
#22 - had not started work until June 2 and suggested the
appellant could not have started work on May 19, as alleged. The
appellant stated she had no knowledge of what was contained in
any SRC documents, including any ROE issued in respect of that
person's employment. The appellant stated that when berry season
began, she rode to work in a yellow bus driven by Harjit Singh
Gill and all picking work was performed at Abbotsford and/or
Chiliwack. When working on vegetables - or weeding in the early
part of the season - Shindo drove the van. Counsel referred the
appellant to the notes of Janet Mah - tab 82 - of the
conversation between Harby Rai and Navjot, acting on behalf of
the appellant. The answer apparently provided by the appellant -
through Navjot - to the question - posed by Rai - about the
identity of the driver for her first day of work was "I was
picked up in a yellow bus by Harjit Gill". Later in the series of
questions posed by Rai, the answer recorded is that the appellant
had been picked up by Gill "at a basement suite .... in
Vancouver". Taro Kaur Bassi replied that this answer had been
given in the context of when the berries were being picked and
that - indeed - she had been picked up by Gill who drove the
yellow bus. However, she is clear that Shindo - using a
van - drove her to work on first day of work. Concerning the
picking of berries, the appellant recalled using picking cards
for strawberries and raspberries and that the cards - with 3
attached sheets - were handed out by the drivers each morning and
collected by them at the end of each working day. Each day, a new
card was issued and the appellant agreed her name had probably
been written on the card because she had not shared the card with
any other worker. In the Questionnaire - tab 97 at Q.
40 - the appellant's recorded answer to whether picking cards had
been used was "did not use". She explained that she answered in
that way because the cards had not been retained by her for any
purpose whatsoever. Boxes were used to pick strawberries and 3 of
them would fill a flat. When a flat was taken to the weighing
area, her picking card was punched to record the delivery. The
same process was followed with respect to raspberries and workers
would carry a flat on top of their heads to a scale mounted on a
truck where the weighing was performed by the owners and/or
managers of the farm and not by anyone from SRC. If a flat had
been overfilled or was not full, then the actual weight of the
berries in the flat would be recorded on the picking card. Later,
if odd amounts added up to a full flat, then the card would be
punched accordingly. In her experience, the strawberry and
raspberry flats each contained 18 pounds of berries. Taro Kaur
Bassi recalled returning all of her picking cards to Shindo but
cannot remember whether that was accomplished every few days or
on a daily basis. In any event, the picking cards were not used
to calculate her wages but the appellant considered they were
important because SRC needed them in order to deal with the farm
owners. She picked about 20 flats of strawberries per day or
about 360 pounds. The same amount of raspberries were picked
early in the season but - later - the number dwindled to between
12 and 15 flats but the pay was on an hourly basis regardless of
the amount of berries picked. During the HRDC interview - tab 92
at Q. 17 - with Joann McInnes at which her son - Kulwinder - had
acted as her interpreter/agent, the recorded answer regarding
method of payment is that she was paid $7 per hour for other work
but the raspberry and strawberry picking was paid "by the flat"
and blueberries were paid "by the pound". The appellant stated
she had been discussing the usual method of remunerating pickers.
Counsel pointed out her son was present throughout the interview
and had been interpreting the questions and her answers which
were written down by Joann McInnes. The appellant responded "the
things I am telling you today, if you asked me tomorrow, I would
not remember". At Discovery - Q. 47 - the appellant had stated
she picked strawberries her first day and had not used picking
cards. At Qs. 36, 37, 40 and 41 of tab 97, the answers provided
stated no picking cards were ever used by the appellant for any
purpose. The appellant responded that those answers - whether
written down in the transcript of her Discovery or in the
Questionnaire - were wrong and must have been the subject of
error during the recording process. With regard to keeping any
records of hours worked, the appellant stated she did not recall
keeping any such records even though an answer had been given to
McInnes during the HRDC interview that her hours had been
recorded in a book kept at her residence. Although she quit work
for SRC on July 27, the appellant stated she had not needed her
ROE until after finishing work with Kalair Farms and when she
asked Shindo for payment of wages - in addition to $500 already
received - the response was that there would be a final
settlement when the ROE was prepared following the end of the
season. At Shindo's house - in December - the appellant received
her ROE and a cheque which Shindo advised was calculated on the
basis of an hourly rate of $7. When referred - by counsel - to
the Questionnaires - tab 85 and tab 97 - where
answers had been provided that $380 in cash had been received and
that the only payment of wages was by cheque, the appellant
stated those answers were not correct and that her son must have
made a mistake when filling out those forms. If the pay statement
- tab 89 - called for her to receive net pay only in the sum of
$3,380 and she had received $3,500, the appellant agreed she must
have been overpaid by Shindo. When responding to Q. 18 of the
HRDC interview - tab 92 - that she had been paid "every two
weeks", the appellant agreed that was not correct nor was her
response - at Q. 29 - that she had received a total of $500 in
cash in several small payments. Instead, the appellant stated the
truth of the matter is that she received one cheque for $3,000
and one cash payment of $500.
[43] In re-examination by her agent -
Darshen Narang - Taro Kaur Bassi stated she recalled starting
work "past the middle" of the 5th month (May). She is aware that
her ROE - tab 88 - or "weeks paper" is important as it is
required when applying for UI benefits. She stated she
relied on the date of May 19, 1996 - used in the ROE handed to
her by Shindo - as being her first day of employment with SRC.
Narang referred the appellant to the ROE - Exhibit R-1, tab 23,
p. 27 - of Gurdev Kaur Kandola and advised the home address for
said worker is stated as 144 A Street in Surrey and that she
worked for SRC between June 2 and October 5. The appellant stated
she lived in Vancouver at this time and the female
- Gurdev Kaur - who also lived in Vancouver and
rode to work with her on the first day must have been a different
person with another family surname.
BAKHSHISH KAUR THANDI
[44] Bakhshish Kaur Thandi testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The Respondent's Book of
Documents relevant to the appellant's appeal - 2000-2366(EI) - is
Exhibit R-29. The Minister decided the appellant had been
employed in insurable employment with SRC for 18 weeks during the
period from June 24 and October 26, 1996, but found the amount of
her insurable earnings to be nil. Counsel for the respondent
advised the Court that although the Minister now accepted the
appellant's period of employment was from June 9 to October 26,
1996, her insurable earnings were nil. The appellant's position
is that she worked during said employment period but that her
insurable earnings were in the sum of $7,840. The Minister relied
on the following assumptions of fact as set forth in paragraphs
4(j) to 4(p) of the Reply to the appellant's Notice of
Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services to the Payer before
June 24, 1996;
l) the
Appellant did not receive any remuneration from the Payer for the
duties she performed for the Payer;
m) the Appellant
received a ROE from the Payer in lieu of wages;
n) the records
provided, for example, the ROE, the T4 slip, the non negotiated
cheque dated October 26, 1996 in the amount of $7,000.00 and the
Employee Earnings Record were fabricated to give the appearance
that the Appellant provided services to the Payer before June 24,
1996 and that the Appellant was paid, and these records were a
sham;
o) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qulify for unemployment/employment insurance
benefits; and
p) the Appellant
did not work for the weeks reflected in the ROE.
[45] After providing the Registrar her name,
address and occupation and completing the formalities of her
affirmation to speak the truth, the first words from the mouth of
Bakhshish Kaur Thandi were "I'm illiterate". She then stated she
had been in Canada 9 years but had never attended school in India
and had not participated in any ESL education subsequent to
arriving in Canada. Her immigration and that of her husband -
Gian Singh Thandi, a co-appellant - was sponsored by her daughter
- Maninder Kaur Mangat - and they lived in the Mangat family
home. After only a few days in Canada she started working for a
labour contracting business operated by Bant/Shindo. The first
year - 1994 - she worked the entire season, picking strawberries,
raspberries and blueberries and then worked on vegetable farms at
the end of the growing year. That year, her husband collected her
wages on her behalf and she qualified for UI benefits. In 1995,
she worked for Bant/Shindo performing the same type of work and
collected UI benefits following her layoff at the end of the
season. After those two seasons, she went to the Temple and made
inquiries about obtaining work as she had heard from others
within her community that Manjit Rana was hiring farm workers.
She requested her daughter to telephone Shindo's home number in
order to follow up on the possibility for employment. In 1996,
SRC was the employer and the appellant stated she went to work in
the 6th month (June) after Shindo had telephoned her at the
Mangat residence to advise there was work available. The first
day of work was spent picking strawberries by sitting on the
ground, removing the berries and placing them in a basket. The
usual working day was 8-9 hours, extending on rare occasions to
10 hours. Strawberry season lasted 3 weeks and she worked 7 days
per week, unless some matter required her to miss a day. Even if
the weather was not pleasant, the workers remained at their jobs.
Picking cards were used when recording flats of berries. Her
husband - Gian Singh Thandi - worked with her and took flats to
the scale to be weighed and handed in her picking card to be
punched. The appellant stated her husband handled all affairs
pertaining to money and collected some wages from time to time.
The rate of pay was $7 per hour. After picking strawberries, the
appellant picked raspberries in the Abbotsford area, working on
various farms. Following that crop, she picked blueberries in
Richmond and - perhaps - Abbotsford. Bakhshish Kaur Thandi stated
that following the berry season, she went to work on a vegetable
farm in Richmond that grew turnips, radishes, cabbages and
potatoes. The appellant recalled riding in a red van - driven by
Shindo - on her first day of work and also riding in two other
vans, one brown, the other white. While picking berries, she rode
in a yellow bus driven by Harjit Singh Gill. The appellant stated
there were about 13 passengers in the van on her first day of
work but during the season there were occasions when a greater
number of people were transported. She recalled riding in the van
with workers one of whom she knew as Ajmer Kaur and another as
Charanjit Kaur Bains. The van picked her up each
morning between 5:00 a.m. and 7:00 a.m. and dropped her off
between 7:00 p.m. and as late as 9:00 p.m. if the work had been
performed at a distant location. At the end of a work day, the
van driver would inform her husband of the number of hours worked
and - at home - either her daughter or son-in-law recorded that
number on a calendar and in a book. In the event her husband had
been able to collect some wages from Shindo or had borrowed money
by way of some sort of advance, he would tell her the amount
received. The appellant stated her son-in-law is educated and can
speak English and Punjabi and her daughter is also capable in
both languages. Within the 9-year period following her arrival in
Canada, the appellant and her husband went to England twice, and
on one occasion remained for 6 months. The appellant stated she
is able to write her name in English. Her agent - Darshen Narang
- referred her to a document - tab 90 - consisting of certain
writing on an unsigned SRC cheque dated October 26, 1996. The
purported payee is Bakagha K. Thaadi and the sum payable is
$7,000. There is an X on the signature line below the heading SR
Contractors Ltd. The appellant was referred to her ROE - tab 88 -
indicating she had earned the sum of $7,840 during her period of
employment but did not recognize that document. She identified
her signature - printed as B.K. Thandi - on the last page of her
application for UI benefits - tab 103 - which was completed at
the Fraser Street HRDC office on November 7, 1996. Her husband
applied for benefits the same day and her daughter attended with
them in order to complete the paperwork. The appellant was
interviewed by Michel Fontaine on February 16, 1998 at the Fraser
Street HRDC office. Kal Tarlal acted as interpreter. The
appellant recalled she had been suffering from a fever that day
and requested a postponement which was not granted. As for the
quality of the interpretation performed by Tarlal, the appellant
stated she had difficulty understanding her Punjabi but accepted
that one can only perform a task to the best of one's ability
under the circumstances. The Questionnaire - tab 82 - dated March
18, 1999 was signed by the appellant and witnessed by her
son-in-law Jhalman Singh Mangat who completed the form on her
behalf. An entry on the last page of another Questionnaire - tab
106 - indicates her son-in-law acted as her interpreter for the
purposes of completing that document. Although she could not
recall specifically, the appellant agreed the answers to the
questions were provided by herself or her husband and then
recorded by Mangat. Bakhshish Kaur Thandi stated she had not
returned any of her 1996 wages to Bant, Shindo or anyone at SRC
as part of any arrangement to enable her to qualify for UI
benefits.
[46] Bakhshish Kaur Thandi was
cross-examined by Johanna Russell. The appellant's daughter -
Maninder Kaur Mangat - had been married in India in 1986 and
immigrated to Canada in 1987. Maninder had completed Grade 9 or
10 in India but had not continued her education in Canada.
Instead, she worked in a bakery and as a chambermaid in a motel.
The appellant stated that although her daughter has some ability
to speak and read in English, she thinks it is limited,
particularly when compared to her son-in-law. Neither her
daughter nor her son-in-law worked for SRC. During the 1996
season, the appellant stated she and her husband
- Gian Singh Thandi - started work the same day,
worked together throughout and were both laid off on the same
day. While picking berries, the men and women were not separated
into two groups. At the HRDC interview with Michel Fontaine, the
appellant stated she was aware that she was obligated to tell the
truth when responding to questions. She also recalled someone
speaking to her daughter about her SRC employment and that she
had promised to speak the truth when giving answers at a
Discovery on November 6, 2001 in Vancouver. At Discovery, the
appellant had stated her first day of work was the 9th day of the
6th month (June). She conceded that someone may have informed her
that was the date shown on her "weeks paper" (ROE) as well as the
last day, October 26, 1996. During her first year working in
Canada, the appellant became aware of the UI benefits system and
even though she had replied to questions at her Discovery that
the employer - SRC - had informed her about the
availability of benefits - in 1996 - she was aware she would
qualify at the end of the season. The appellant stated she had
been content to allow her husband to collect wages for both of
them and that she saw money paid - by Shindo - to her husband,
usually the day following a request for some payment. The
appellant stated she thought some money received by her husband -
from Shindo - may have been in the form of a loan and she thought
Bant and/or Shindo recorded all amounts handed over in order to
be used later when calculating the final settlement for both at
the end of the season. Although she had not been present, in her
opinion, following October 26, 1996, there was an accounting done
between her husband and Shindo where the balance of wages due to
herself and her husband were paid. Counsel referred the appellant
to the pay statement - tab 89 - and the purported cheque - tab 90
- with the writing thereon "I cash money give". Counsel pointed
out both use the name "Bakagha K. Thaadi". Even the ROE - tab 88
- appears to have been written in that name originally and then
revised to read "Bakhshish K. Thandi". A T4-1996, issued by SRC
in the name "Bakagha K. Thaadi" was used by the appellant when
filing her 1996 income tax return and a correction was made to
reflect her proper name. The appellant stated she usually signs
her name as it appears on the Questionnaire - tab 82 - but may
make an X if someone requested her to do so. She recalled some
talk of a cheque for $7,000 and believed she and her husband owed
Bant the sum - borrowed earlier - of $5,000 and the
only method of repayment was for both of them to work for SRC. At
the end, she thought that the loan had been paid in full and any
extra wages had been paid. Counsel referred the appellant to a
photocopy of a $5,000 cheque - Exhibit R-30, tab 89 - paid to her
husband - Gian Singh Thandi - which was
dated September 15, 1996 and negotiated on December 16, 1996, by
depositing it to their joint savings account at VanCity credit
union. The appellant stated the endorsement on said cheque in the
form of an X appeared to be that of her husband. A statement -
Exhibit-30, tab 97 - of transactions on that account indicated
there was a $5,000 deposit on December 16, 1996, followed by a
withdrawal of $4,200 on December 24, 1996. Counsel pointed
out the balance in said account - on July 20, 1996 - was
$13,850.33 just before a withdrawal of $10,000 which the
appellant identified as the amount required to repay a loan to a
son living in England. Counsel referred the appellant to her
recorded answer - to Q. 18 - given to Michel Fontaine during the
HRDC interview - Exhibit R-29, tab 93 - where she had
stated that she "received a cheque and they said cash it and give
it back to us". And, in the same answer that "they said go ahead
deposit it in your bank and then give it back to us". The
appellant agreed her daughter - Maninder - was present during the
interview and agrees she probably provided that answer but
reiterated that she had a fever that day and "my mind was not
working". Fontaine's notes of further discussions arising from Q.
18 continued on the next page and state that "Shindo told her to
do this in 1996". In response to the question posed by Fontaine
"Why did you have to repay the money from the cheque to Shindo?",
the appellant's recorded response was "Never questioned it
because that's what they told her to do. That's what others were
being asked to do." In response to the question whether she had
ever been paid any wages, the appellant responded that she had
never been paid anything. Further in the questioning by Fontaine,
the appellant's answer - written down by Fontaine in his notes -
to a question about why she would work for nothing is that she
"just worked for the weeks". When asked whether she had received
$7,000 in cash, the response by the appellant - again - was that
she "only got the weeks". In responding to these references from
the HRDC interview, the appellant stated she could never have
made such statements as alleged by Fontaine in his notes. Counsel
referred the appellant to her alleged pay statement - tab 89 -
indicating she was entitled - at most - to payment of net
earnings of $6,764. During the interview, Fontaine - Q. 29 -
had asked why she would have been paid the sum of $7,000 which
was in excess of her earnings and the answer recorded is that she
agreed "they never would pay out that amount of money". The
appellant stated she could not recall having given that answer to
Fontaine. Question 32 was posed in this manner: "If applicable,
what were the circumstances which motivated you to participate
with the employer in submitting a Record of Employment which you
both knew to be false?" The appellant's answer - noted by
Fontaine - was she "thought that she had made the weeks. That's
how they were paid. Did not realize that not being paid the wages
would be a problem. Got the Record of Employment for the number
of weeks". Near the end of the interview, Fontaine asked certain
questions of the appellant's daughter - Maninder - who - in the
presence of the appellant - stated that her mother and father
lived with her family in 1996 and was not aware that either her
mother or father had been paid any money for their work and that
when her father received money in the form of a $5,000 cheque,
she knew the sum of $4,000 had been handed over - a few days
later - to Bant when he attended the Mangat residence. According
to Maninder, this same system had been used - in 1995 - when her
parents had worked for Shindo. All they had ever received was
their "weeks paper" so each could qualify for UI benefits.
Maninder advised Fontaine that her parents both knew they would
not be paid except by receiving ROEs to use when applying for UI
benefits. The appellant denied ever having told Maninder about
any such schemes but conceded Maninder had paid Bant the sum of
$4,000 which was to "pay back a loan." In her opinion, her
daughter would not have made such statements and no worker would
ever work that hard "just for the weeks". Counsel read certain
portions of the transcript of the Discovery of Gian Singh Thandi
(Qs. 250-258) wherein he had explained that the cheque in the sum
of $5,000 - Exhibit R-30, tab 89 - deposited in the VanCity
account on December 16, 1996, had been issued to him in error -
by Bant - and that the sum of $4,000 had been returned because
that portion represented the overpayment. During that exchange of
questions and answers, Gian Singh Thandi had stated that Bant was
both angry and drunk when issuing the $5,000 cheque at his
Vancouver residence during a meeting when Shindo was present.
Gian Singh Thandi went on to explain that in his
opinion the cheque had been made out in haste and he accepted it
even though he had considered all wages - by that point - had
been fully paid for both himself and Bakhshish Kaur Thandi.
Later, according to the answers given at Discovery, he received a
telephone call from Bant pointing out the overpayment and agreed
that $4,200 cash was withdrawn from the Thandi joint account - at
VanCity - of which the sum of $4,000 was paid to Bant. Counsel
pointed out to the appellant that her husband's version of events
did not seem to correspond to her own explanation of the reasons
for the payment to Bant. The appellant stated the payment to Bant
was to repay loans. Turning to the methods employed while picking
various berries, the appellant explained to counsel that she and
her husband both used picking cards every day and shared a flat
while picking strawberries and raspberries and the cards were
punched to record the number of flats picked. The measurement for
blueberries was by the pound and the appropriate amounts were
marked on the cards. At the end of the day, one sheet of the
picking card went to the farm owner and one was handed over to
Bant or Shindo. The appellant agreed she may have provided the
answer to Q. 20 of her interview with Fontaine - tab 93 -
that she "had picking cards. She threw them away once everything
was settled". However, the answer to Q. 36 of the Questionnaire -
tab 106 - concerning the use of picking cards was "there was no
picking cards. I was on hourly rate". In answering Q. 41, the
response was that she never used picking cards. The appellant
stated that the answers provided during her HRDC interview were
correct and that picking cards had been used and that her husband
was more familiar with that aspect of their employment. Counsel
advised the appellant that her husband in completing his own
Questionnaire - Exhibit R-30, tab 109 - had also
denied that picking cards were used by him while working for SRC.
The appellant stated that answer is not correct because she and
her husband worked together and shared picking cards and flats.
The appellant pointed out that the Questionnaire had been
completed by their son-in-law - Jhalman Singh Mangat -
who had never done farm work and that those answers were somehow
improperly written down. At the HRDC interview - on
February 16, 1998 - at tab 93, Q. 17, the appellant's answer
concerning method of payment - whether by the flat/piece work -
was noted - by Fontaine - that she thought she was "paid by the
flat" and that the pay was "a different rate for different
berries" but in any event was not on an hourly basis. In
responding to Q. 24 of said interview, the appellant's
answer is that she was never told she would be paid hourly.
Counsel pointed out that on three separate occasions she had
stated - clearly - she had not worked on an hourly basis. The
appellant replied that these answers were the result of a
misunderstanding. Counsel advised the appellant that during the
interview - tab 93 - she never mentioned working with vegetables
and had only talked about working "from the time berries started
until they finished". At Q. 26, the appellant was asked what work
was specifically performed on her last day of work and the answer
- as noted - was "Richmond, blueberries". The appellant had not
been able to recall the name of the farm. The answer to Q.14 of
the Questionnaire - tab 106 - included a reference to working on
vegetables "for about 2 weeks". The appellant was unable to
explain why that answer would have been given if she had worked
longer than that on the vegetable farms.
[47] In re-examination by her agent -
Darshen Narang - Bakhshish Kaur Thandi recalled that her daughter
- Maninder - did not speak much during the interview
- tab 93 - but had been speaking Punjabi to an
"East-Indian lady" while the interviewer kept on writing. The
appellant cannot recall any questions being put to Maninder about
whether she (the appellant) had informed her about not being paid
by SRC. The appellant stated she and her husband had decided to
let Maninder believe they had just worked "for the weeks" in 1995
and 1996 because they did not tell her everything about their own
personal affairs. However, she and her husband did tell their
daughter and son-in-law about receiving cheques. The appellant
stated that - in her opinion - any information provided to the
interviewer was incorrect because "what does a little girl know".
The appellant confirmed that she and her husband had not been
paid in cash every two weeks but when cash was received they did
not want to disclose that fact to their daughter. In order to
hide that receipt of funds, they decided to tell their daughter
they were working for SRC "just for the weeks". With regard to
answers provided in the Questionnaire - tab 106 -
the appellant acknowledged she may have provided some information
to her son-in-law and other responses probably came from her
husband. In that Questionnaire - at Q 32 - the appellant's answer
was that she had been paid 4 times during the season, sometimes
in cash and sometimes by cheque.
[48] In further cross-examination by Johanna
Russell, Bakhshish Kaur Thandi denied ever telling Michel
Fontaine she had worked for no pay and had only been paid by
receiving the ROE. As for the final settlement, her son-in-law
- Jhalman Singh Mangat - attended at the
Bant/Shindo/Rana residence in order to obtain the ROEs for the
appellant and her husband and at that time it should have been
apparent cash had been received during the season.
GIAN SINGH THANDI
[49] Gian Singh Thandi testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2370(EI) - is
Exhibit R-30. The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks during the period from
June 24 to October 26, 1996 and had insurable earnings in the sum
of $5,000. Counsel for the respondent advised the Court that
while the layoff date and insurable earnings were correct, the
Minister conceded the appellant's first day of work was June 9.
The appellant's position is that he started work on June 7 and
was laid off on October 26, 1996, during which period he had
gross insurable earnings in the sum of $7,840 as shown on his pay
statement at tab 88. The Minister relied on the following
assumptions as set forth in paragraphs 4(j) to 4(q), inclusive,
of the Reply to the appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services to the Payer before
June 24, 1996;
l) the
Appellant was paid $5,000.00 by cheque dated September 15, 1996
and negotiated on December 16, 1996;
m) the Appellant did
not receive any other remuneration from the Payer other than the
$5,000.00 admitted herein;
n) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip, the
non-negotiated cheque dated October 26, 1996 in the amount
of $4,000.00 and the Employee Earnings Record were fabricated to
give the appearance that the Appellant provided services to the
Payer before June 24, 1996 and was paid in excess of the
$5,000.00 admitted, and these records were a sham;
p) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
q) the
Appellant did not work for the weeks reflected in the ROE.
[50] The appellant testified he arrived in
Canada in June, 1994. Every year thereafter, he was employed as a
farm worker and was laid off at the end of each growing season.
Following layoff, he collected UI benefits except when he went to
India on an extended vacation on two occasions. After arriving in
Canada, the appellant and his wife - Bakhshish Kaur Thandi -
lived with their daughter - Maninder Kaur Mangat - and
her family. In 1994, he worked for a labour contractor and in
1995 and 1996 worked for Bant. Following his employment with SRC,
the appellant worked for another farm labour contractor and is
currently employed as a farm worker on a farm in the Lower
Mainland. In 1994, his employer paid his wages in full at the end
of the season after deducting cash advances which had been paid
on request from time to time. Currently, he is paid
- by cheque - on a regular basis but is still able to
request a cash advance. For his work for Bant - whom he
considered to be his employer in 1995 and 1996 - the appellant
stated he was satisfied that he and his wife had been paid their
wages in full. Gian Singh Thandi stated he had been a farmer in
India but had not been educated there and - to his regret - had
not attended ESL classes in Canada. Within the past two or three
years, he has learned how to sign his name in English but before
that used to sign with an X. He is not able to read numbers in
English but can tell time. The appellant identified the photocopy
- tab 89 - of the cheque - in the sum of $5,000 - that he
received from SRC, endorsed by marking his "X", and deposited
into the Thandi joint account at VanCity credit union. He stated
he is able to conduct banking transactions and to deal with
financial matters. He recalled his first day of work - in 1996 -
as occurring after the first week of the 6th month (June). That
first month was not as busy as later in the season and he was
able to take off one or two days per week. His first job was
picking strawberries and that continued for 3 or 4 weeks. Next,
he picked raspberries for 4-5 weeks and then blueberries for 5-6
weeks. Once blueberry season had ended, he worked on vegetable
farms for another 6-7 weeks until laid off near the end of
October. The appellant stated that his pay throughout was $7 per
hour regardless of the task performed. Picking cards - in
triplicate - were used for all types of berries and he shared a
card with his wife but cannot recall whose name was written on
the card when issued by the driver each morning. Sometimes, the
total working day was 14 hours since travel could occupy at
least 3 hours because most strawberry farms were located in
Chiliwack and raspberries and blueberries were grown in the
Abbotsford area. The vegetable work at the end of the season was
performed only in Richmond. During his employment, he was taken
to work by three drivers, Shindo, Surjit and - rarely - Bant.
Following his layoff, he received an ROE - tab 87
- dated October 27, 1996, indicating he had worked 20 weeks and
had $7,840 in insurable earnings. The appellant stated he did not
know at that point the number of weeks required to qualify for UI
benefits. From time to time during the seasons, the appellant saw
Manjit Rana walking around the farms but did not know his status
or function in relation to Bant. On November 7, the appellant
applied for UI benefits and identified his mark "X" on the form
which was completed at the Fraser Street HRDC office by a person
- unknown to him - who also filled out the benefits application
for Bakhshish Kaur Thandi. The agent for the appellant referred
him to the $5,000 SRC cheque - signed by Manjit Rana - which was
dated September 15 but not deposited to the Thandi account until
December 16, 1996, 6 weeks following his layoff. The
appellant explained that - even now - he does not deposit cheques
immediately after receipt. As for the unsigned "I Cash Money
Give" cheque - tab 90 - payable to Gian S. Thandi in the sum of
$4,000, the appellant stated he had not seen that cheque earlier.
The appellant recalled attending - with his wife and daughter -
an HRDC interview on February 18, 1998. The appellant stated they
were in a room with an HRDC investigator and a female Punjabi
interpreter but did not understand - fully - her interpretation
during the interview. The appellant signed the Questionnaire -
tab 82 - dated March 18, 1999 which had been completed by his
son-in-law, Jhalman Singh Mangat. Another Questionnaire - tab 109
- sent during the appeals process, was completed by his
son-in-law who identified himself thereon as the
interpreter. The appellant recalled answering questions
posed by his son-in-law who also completed - at the same
time - the Questionnaires - in both instances - for
Bakhshish Kaur Thandi. The appellant's agent referred him to the
comments of his daughter - Maninder - as contained in the notes
of the HRDC interviewer - Exhibit R-29, tab 93 - to the effect
that the appellant and his wife had not been paid for their work
and that someone had told them what to say if and when they were
questioned by authorities. The appellant stated he wished to
disavow those statements made by his daughter and stated that SRC
had paid him and his wife in full and that Maninder did not know
all the facts because "we were hiding some things from her".
During the interview conducted by Michel Fontaine - tab 93 - on
February 16, 1998 [dated 1997 in error], the appellant's recorded
answer to Q. 18 is that he was "paid every two weeks" and the
note made by Fontaine is that the appellant did not remember
getting a cheque and that Manjit gave him cash. Gian Singh Thandi
stated he never had any dealings with Manjit Rana as all cash
payments were made by Bant and/or Shindo after having requested
some payment because he and his wife needed money for their
household. Neither he nor his wife were asked by Bant and/or
Shindo to sign any receipts for the cash payments. The appellant
stated that even though his daughter and/or son-in-law recorded
the hours of work performed by him and his wife, they did not
tell them about cash payments received in the course of the
season.
[51] The appellant - Gian Singh Thandi - was
cross-examined by Johanna Russell. He stated that since
their arrival in Canada, he and his wife have always lived with
their daughter and son-in-law. They eat meals together but he
does not know what either of them do for a living. In 1994,
although he and his wife had begun working for another labour
contractor, the appellant recalled that later in that season they
went to work for Bant/Shindo and were employed by them the next
two seasons, in 1995 and 1996. He stated Bant paid him some money
- in June - but cannot remember the amount. Another payment was
received from Bant near the end of the month. Neither payment was
deposited to the VanCity account. The payments were intended to
apply to the wages earned to date by the appellant and his wife.
The third payment was received in July from either Bant or Shindo
but the appellant could not remember the amount. Thereafter, cash
was received from time to time from Bant and/or Shindo upon
request but the appellant and his wife did not disclose to
Maninder and her husband any of these payments and he cannot
recall the total amount obtained. In early November, the
appellant and his son-in-law went to Bant's house for the purpose
of settling up for the year. He handed Bant a record of hours
worked by himself and Bakhshish Kaur Thandi and - in return -
received an ROE for himself and another one for his wife. No cash
was received at that time but prior to attending at the
Bant/Shindo (Suran) household, he believed he was owed
approximately $1,000 in wages. At that point, the appellant
stated his son-in-law had become aware that cash had been
received by the Thandis during the season. About one week later,
he received a telephone call from Bant telling him to come over
and get paid. He walked to Bant's residence where he noted Bant
was "drunk, a little bit". Bant wrote out the $5,000 cheque - tab
89 - and handed it to the appellant saying "Here, take this". The
appellant stated Bant contacted him - by telephone - 5 or 6 days
later to advise that - by mistake - there had been an overpayment
of wages and Thandi should return some money. As a result, the
appellant deposited the $5,000 cheque into the joint account at
VanCity and - personally - returned the sum of $4,000 a few days
later when he walked over to Bant's house for that express
purpose. Commenting on the statements of his daughter - Maninder
- during the HRDC interview that Bant had obtained the money at
the Mangat family home, the appellant stated she was wrong. The
appellant stated he did not know that his SRC cheque had been
issued by Rana and could not recall why he would not have
deposited the cheque until December 16, 1996. Counsel advised the
appellant that his wife's version of the repayment of $4,000 to
Bant was that it represented repayment of a loan. Gian Singh
Thandi replied that he was the one dealing with Bant and handling
money matters. Counsel read certain portions of the appellant's
Discovery - Qs. 203, 204, 210-212 - where the
appellant had stated "sometimes Bant got a signed receipt for
cash payment, sometimes not". The appellant stated he could not
sign his name at that time except by marking an X. In response to
Q. 204, he stated that he had kept a record throughout the season
but had received $11,000 from Bant and/or Shindo for himself and
on behalf of his wife. As for the timing of cash payments
received, at Qs. 210 and 211, the appellant stated the initial
payment was $2,000 followed by another - $3,000 - received at the
beginning of July, and a $3,000 payment at the end of the month.
Thereafter, SRC paid wages - as requested - until a total of
$11,000 had been received. Gian Singh Thandi stated the sum of
$6,000 received in July was used for expenses and - referring to
his daughter and son-in-law - to "pay money to the kids". He
agreed he had retained $1,000 from the proceeds of the $5,000
cheque he had deposited into the VanCity account and that he and
his wife had received $11,000 prior to that, for a total of
$12,000. The "I Cash Money Give" purported cheque - Exhibit R-30,
tab 90 - in the name of the appellant and the other "I Cash Money
Give" purported cheque - Exhibit R-29, tab 90 - in the
name of Bakagha K. Thaadi are in the sums of $4,000 and $7,000,
respectively, for a total of $11,000. Counsel suggested the
appellant had tailored his evidence - at Discovery -
to match that total. Counsel referred Gian Singh Thandi to his
pay statement - Exhibit R-30, tab 88 - and to his wife's pay
statement - Exhibit R-29, tab 89 - indicating net earning - for
each - in the sums of $6,764 for a total of $13,528. Since - at
most - the appellant's calculation of payments did not exceed the
sum of $12,000, counsel suggested there is a shortage of $1,258.
Counsel referred to portions of the appellant's Discovery where
he stated he and his wife had received their ROEs from Bant -
personally - at Maninder's (Mangat) residence. The appellant
stated the version offered during his testimony - in Court - was
correct in that he received the ROEs at Bant's house at the same
time the $5,000 cheque was handed to him. Counsel referred to the
two "I Cash Money Give" purported cheques totalling $11,000 and
the $5,000 cheque actually deposited by the appellant. In the
event the purported cheques were intended to serve as receipts
for cash payments made to the appellant and his wife
- by SRC - then the overall amount would be $16,000,
in excess of the combined maximum net earnings - $13,528 - of the
appellant and his wife. The appellant agreed they had not earned
$16,000 after deductions. At the HRDC interview
- tab 93 - on February 16, 1998, in response to
Q. 29(b), the appellant's recorded answer to the question "who
gave you the cheque" - referring to the $5,000 cheque dated
September 16, 1996 - was "Manjit". Michel Fontaine noted "Doesn't
remember when Manjit gave him the cheque". The appellant denied
giving that answer as well as the one - Q. 18 - that Manjit had
given him cash. At Q. 29(g), when Fontaine asked the appellant
"what happened to the $5,000? How much of it did you have to
repay to the employer?", the appellant's noted response is "Did
not have to repay any money back to Manjit". Asked by counsel why
he would have made that reference to Manjit - rather than Bant
with whom he had been dealing throughout - the appellant did not
comment. In answering Q. 38, the appellant recalled telling
Fontaine that he did not "know if Bant worked for Manjit" and
further that "Bant has nothing to do with me". Two days later,
the appellant - with his daughter, Maninder - attended another
interview with Fontaine - tab 96 - and, as noted at
p. 3, was reminded that he had earlier denied repaying any
money to his employer in order to obtain an ROE or "stamps" in
order to qualify for UI benefits and that this denial was
contradicted by his wife and daughter during an interview with
Fontaine. The appellant's response to Fontaine's inquiry was that
he kept $1,000 of the $5,000 cheque but, "the employer paid him
the full $4,000 back". This repayment was apparently made in
cash, although he could not remember the date. Confronted with
these responses, the appellant stated that this answer was not
true and that Bant had not repaid any of the $4,000 that had been
given to him from the withdrawal at VanCity following the deposit
of the $5,000 SRC cheque. According to the notes made by
Fontaine, the appellant later stated that - in any event -
whatever transpired between himself and Bant was "an arrangement
between friends". The appellant stated those answers had not been
recorded correctly and denied that his daughter - Maninder - was
present during the interview and - instead - insisted
she was "on the other side of the wall". During his
first interview - tab 93, at Q. 7 - the appellant's recorded
answer to a question about the nature of work performed for SRC
was that he "started working about the fourth or fifth month -
weeding, planting, pulling out grass". At that time, he could not
remember his last day of work or even the month when he was laid
off. Responding to the Questionnaire - tab 109 - dated
October 18, 1999 - at Q. 14 - the first line of the answer
concerning the type of work done reads "weed picking, strawberry,
raspberry, blueberry, vegetables. First two weeks pulling the
weeds, then strawberries picked for 4 weeks, raspberries picked
for 6 weeks, blueberries picked for 6 weeks, vegetables for 2
weeks". Counsel pointed out to the appellant that in his
examination-in-chief he had testified that he worked on the
vegetable farms for 6 or 7 weeks. The appellant stated he
and his wife had been driven to work by Binder (Balwinder Singh
Chahal) on their first day and that they rode to work together
every day thereafter. Counsel advised the appellant that
according to employer records - Exhibit R-1, tab 5 - Binder
Chahal had not started work for SRC until July 1, 1996. The
appellant agreed that despite what the records show, Binder was
their driver on that first day. Counsel advised the appellant
that the ROE issued for Chahal, together with a Statutory
Declaration - Exhibit R-5, tab 271 - in both English and
Punjabi - signed by Chahal - indicate he worked from July 1 to
November 16, 1996 and had driven only the grey van. The appellant
replied that Chahal was wrong in making those statements. When
answering Q. 10 of the interview - tab 93 - the appellant's
answer is noted to include the comment that he was "picked up in
a red van" and later that he rode "mostly in a red van driven by
Binder". As part of the answer, he stated he rode - sometimes -
in a white van. Gian Singh Thandi commented that Binder Chahal
had driven three different vans. While employed at SRC, his
drivers were Binder, Shindo and a male person called Surjit.
Counsel referred the appellant to his answer - at Discovery - to
Q. 350 where he said Shindo had driven him to work on his
first day. During the HRDC interview - tab 93, Q. 21 - the
appellant's recorded answer is that "Bant did not drive him". The
appellant replied that Bant had driven him to work occasionally.
He identified his mark - X - on his UI benefits application form
- tab 106 - and recalled the form had been completed on his
behalf by a stranger. Counsel pointed out that during the
interview - tab 93, Q.2 - he told Fontaine that his grandson -
Jasbir Mangat - had helped him. The appellant stated that he was
able to recall it was a friend of his son-in-law who had
completed that document but still did not know this person's
name. Despite having answered to the contrary when completing his
Questionnaire - tab 109, Qs. 36, 37, 40, 41 - the appellant
confirmed he had used picking cards and that strawberries and
raspberries were measured in flats while blueberries were counted
in pounds. At the end of each day, the picking card was handed to
the driver but he could not recall whether a copy was retained at
their residence. Counsel referred the appellant to his wife's
answer - Exhibit R-29, tab 93, Q. 17 - that she thought payment
was by the flat and that there was a different rate, depending on
the berry crop picked. The appellant replied that the pay for
himself and his wife was always based on the hourly rate of $7
regardless of the nature of the tasks performed. He identified
his T4 slip - tab 100 - in the sum of $7,840 which he used to
file his 1996 income tax return.
[52] In re-examination by his agent -
Darshen Narang - Gian Singh Thandi recalled he had attended an
information seminar at the PICS office and that there were
discussions concerning the working conditions of farm workers. He
stated he did not inquire about the official business structure
of the enterprises operating as labour contractors that had hired
him over the years.
JASWINDER KAUR CHEEMA
[53] Jaswinder Kaur Cheema testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2322(EI) - is
Exhibit R-14. The Minister decided the appellant was employed in
insurable employment with SRC for 17 weeks from June 21 to
October 12, 1996 and had insurable earnings in the sum of $7,000.
The appellant's position is that she was employed for 26 weeks -
from April 14 to October 12, 1996 - and earned $7,637 as recorded
on her ROE at tab 86 (duplicated at tab 95) (The appellant's
Earnings Record - tab 90 - shows gross earnings in the sum of
$9,352 and net earnings of $8,119.) The Minister relied on the
following assumptions of fact as set forth in paragraphs 5(j) to
5(r), inclusive, of the Reply to the appellant's Notice of
Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer before
June 21, 1996;
l) a
cheque dated October 9, 1996 for $3,000.00 payable to the
Appellant was negotiated on October 21,1996 at the Payer's
Bank located at 49th and Fraser Street, Vancouver;
m) a cheque dated
October 12, 1996 for $4,000.00 payable to the Appellant was
negotiated on October 23, 1996 at the Payer's Bank located at
49th and Fraser Street, Vancouver;
n) the
Appellant did not receive any other remuneration from the Payer
except for the $7,000.00 admitted herein;
o) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
p) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer before June 21, 1996
and that the Appellant was paid in excess of the $7,000.00
admitted, and these records were a sham;
q) the
Appellant required the 26 weeks of insurable employment reflected
on the ROE in order to qualify for unemployment/employment
insurance benefits; and
r) the
Appellant did not work for the 26 weeks reflected in the ROE.
[54] The appellant stated she came to Canada
- from India - with her husband and two sons about 10 years ago.
She had not been educated in India and did not take any ESL
classes in Canada. In India, she did housework on their family
farm. The first year in Canada, she worked - in Kelowna - picking
apples. The following year, she worked for Bant/Shindo as a farm
labourer. The appellant could not state - specifically - her
starting date in 1996 when she went to work for SRC, but
remembered is was before the 6th month (June) and she worked with
plants in small containers for two or three weeks prior to
picking strawberries for 3 or 4 weeks. Then, she picked
raspberries, followed by blueberries with some overlapping of
those two berry seasons near the end of the raspberry harvest.
After berry season was finished, she worked cutting branches from
berry plants but cannot recall where the farm was located. Her
wages were paid with two cheques which she deposited into a bank
account at Canada Trust operated jointly with her husband -
Gurmail Singh Cheema - and her daughter-in-law. Her husband
started working for SRC at the same time and both were paid the
hourly rate of $7 and neither of them used picking cards. She did
not recall taking a day off during her employment. The appellant
recalled picking strawberries at two different farms in
Abbotsford and also picked blueberries at other farms also in
Abbotsford. The work with the plants - in small pots - was
performed on a farm in Richmond. The appellant identified her
mark - X - on the endorsement line that she had placed on the
cheque - tab 88 - in the sum of $3,000 she cashed at the SRC 49th
and Fraser St. - Vancouver - TD branch on October 21, 1996.
Although the cheque is dated 10.9.1996 (September) she cannot
recall the date upon which she received it. The appellant also
received a cheque - tab 89 - in the sum of $4,000 - dated
12-10-1996 (October) - and it was negotiated at the same TD
branch on October 23, 1996, only two days after the first
one. Again, the appellant signed with her mark - X - in order to
cash said cheque. On both occasions, after cashing the two
cheques, she took the cash home. Both cheques had been handed to
her - within two days - by Rana when her husband was
present. As a result of receiving $7,000 within a period of 3
days, they used some money to give to their son and some was
retained by her husband but none of it was deposited to their
joint bank account at Canada Trust. On August 19, 1997, the
appellant signed a Statutory Declaration - tab 92 - in which she
declared she worked at SRC for $7 per hour and had not paid any
money back to her employer. She adopted the contents of said
declaration. She recalled a Questionnaire - tab 102 - dated
October 24, 1999 being completed in her residence by her
daughter-in-law - Gurbaksh Kaur Cheema - who
interpreted the questions and wrote down the answers in English
on the form, although she cannot specifically remember providing
those responses. Prior to attending an HRDC interview - tab 96 -
on August 19, 1997, with Gurbax Kaur (Randhawa) as her
interpreter, she attended a meeting - in Surrey - at an office
where several of her SRC co-workers were present. The appellant
returned to the HRDC office on August 25, 1996 and brought in the
T4-1996 slip issued by SRC and her Canada Trust bank book. She
spoke to HRDC employee, Janice Morrow and Randhawa
interpreted on her behalf. At that time, Morrow noted the
appellant had advised that Rana - who she considered had been her
employer - owed her $1,200 and that he had told her she would be
"paid soon".
[55] The appellant - Jaswinder Kaur Cheema -
was cross-examined by Selena Sit. The appellant stated that
Gurbaksh Kaur Cheema had not worked at SRC during 1996. Counsel
advised the appellant that her daughter-in-law had spoken with
Janet Mah - Rulings Officer - during a telephone interview on
June 4, 1999 and that the appellant's answer - as interpreted by
Gurbaksh Kaur Cheema - was that she had picked strawberries on
her first day of work. The appellant agreed she may have provided
that answer but cannot specifically recall the event. The
appellant reiterated that her first day of work was on April 14,
1996 - as shown on her ROE, tab 86 - and that she started working
the same day as her husband who had returned from India the day
before. Counsel advised that documents in the possession of the
Minister disclosed the return date of her husband was April 14th.
The appellant agreed their first working day must have been April
15th. At Discovery - when represented by counsel who later ceased
to act - the appellant had stated she was in India in 1996 and
had returned to Canada during the second month (February). She
stated she had been confused as she had not gone to India that
year, although she had visited there previously. The appellant
stated she rode to work every day with her husband in a van.
Generally, they worked the same hours but - on occasion - they
would be separated and she would perform a different task. Their
driver on the first day was Harbhajan Singh Kang. She recalled
planting rows of seeds by hand for two or three weeks and then
starting to pick strawberries. Counsel advised the appellant that
the Minister relied on an expert witness - and other information
- which indicated the strawberry crop was not ready at the
beginning of May. The appellant stated she was unsure of her
timing of the sequence of some work and could be in error.
Counsel referred her to certain documents which showed Harbhajan
Singh Kang's first day of work for SRC was June 21, 1996. Counsel
also advised the appellant that Kang and his wife - Harbans Kaur
Kang - both confirmed that start date to the Minister in the
course of providing information at an earlier stage in the within
proceedings and also repeated that date when speaking with HRDC
investigators. The appellant replied that her first day of work
was April 14th, but later acknowledged it was the 15th following
her husband's return from India. She sat on the ground while
picking strawberries and placed them in a bucket which was
emptied into a flat - shared with her husband - who could carry 4
flats at a time to the scale to be weighed and emptied. She
stated she never took any berries to be weighed. Counsel reminded
the appellant she had stated - in her direct testimony - that she
began picking strawberries right after she finished her planting
work. The appellant replied she was not able to recall specific
details of work other than picking berries.
GURMAIL SINGH CHEEMA
[56] Gurmail Singh Cheema testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The Respondent's Book of
Documents relevant to the appellant's appeal - 2000-2321(EI) - is
Exhibit R-13. The Minister decided the appellant was employed in
insurable employment with SRC from June 21 to October 12, 1996
and had insurable earnings in the sum of $6,000. The appellant's
position is that he started working on April 15th and worked
until October 12, 1996 during which period he had insurable
earnings of $7,574. The Minister relied on the following
assumptions of fact as set forth in paragraphs 5(j) to 5(r),
inclusive, of the Reply to the appellant's Notice of Appeal.
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer before
June 21, 1996;
l) a
cheque dated October 12, 1996 for $4,000.00 payable to the
Appellant was negotiated on October 23, 1996 at the Payer's
Bank located at 49th and Fraser Street, Vancouver;
m) a cheque dated
October 12, 1996 for $2,000.00 payable to the Appellant was
negotiated on October 21, 1996 at the Payer's Bank located at
49th and Fraser Street, Vancouver;
n) the
Appellant did not receive any other remuneration from the Payer
except for the $6,000.00 admitted herein;
o) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
p) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer before June 21, 1996
and that the Appellant was paid in excess of the $6,000.00
admitted, and these records were a sham;
q) the
Appellant required the 26 weeks of insurable employment reflected
on the ROE in order to qualify for unemployment/employment
insurance benefits; and
r) the
Appellant did not work for the 26 weeks reflected in the ROE.
[57] Gurmail Singh Cheema testified he is a
greenhouse worker. He immigrated to Canada - from India - in 1994
with his wife and two sons. He had no formal education in India
or Canada and had not attended any ESL classes. By using the
services of a Punjabi-speaking interpreter, he obtained his B.C.
Drivers Licence. Since arriving in Canada, he has returned to
India 5 or 6 times including a visit which lasted from October,
1995 to April 14, 1996. After returning, he went to work - on
April 15 - "for Rana" whom he regarded as the employer while Bant
and Shindo were helpers. The appellant stated he received a
telephone call - during the evening of April 14 - from Bhajan
Kang (Harbhajan Singh Kang) who then attended at the Cheema
residence to collect some items the appellant had brought from
India for him. During their conversation, Kang suggested the
appellant should come to work with him for SRC and the next day
picked him up in a red van. The first day was spent working -
with 4 or 5 other workers - inside a shed on a "Chinese person's
farm" - in Richmond - where seeds were planted in cups and
fertilizer was added. He worked on that farm for 4 or 5 weeks and
at one point worked removing grass - by hoeing and weeding -
around certain plants. In the 6th month (June) the
strawberries were ready to be picked and he went to the
Khakh Farms in Chiliwack where he picked for 3 weeks. Then,
the raspberries were ready and he picked that crop, followed by
blueberries, but for a period during the latter part of the
raspberry season he picked both berry crops - on the same day -
in different fields. He picked raspberries on farms in Abbotsford
and blueberries near Mission. Once berry season was over, he
worked pruning raspberry bushes. He stated he worked at all tasks
for the same hourly rate - $7 - and never used picking cards. He
stated his usual procedure was to take two flats to the weighing
station, leave them on the truck platform, pick up 5 or 6 empty
flats and return to the field to resume picking. The truck with
the scale would move along the rows as picking progressed in the
field. The appellant stated he did not record the number of flats
picked because it was not important. Blueberries were picked and
placed in a bucket which was emptied into a flat containing 4
litres. Gurmail Singh Cheema stated his period of employment with
SRC was identical to that of his wife and throughout the picking
season he always brought the containers of berries to the
weighing station. After working at the Chinese Farm in Richmond
for a few days, Manjit Rana, Bant and Shindo all came to speak to
him and during their talks, the hourly rate of $7 was discussed.
The appellant added other workers had warned him that wages from
this employer were "always late" and this was confirmed later
when - from time to time - he asked SRC for some money. He
received his pay at the end of the season and received a cheque -
tab 89 - dated October 12, 1996 - signed by Rana - in the sum of
$4,000 which he negotiated at SRC's TD bank on October 23, 1996
by taking out cash. He endorsed the cheque by signing his name in
Punjabi. The appellant received another cheque - tab 90 - in the
sum of $2,000 but stated even though it was also dated October
12, 1996, it was not received the same day. The second cheque was
cashed at the TD bank and none of the money from either cheque
was deposited into the family joint account. The appellant stated
he and his wife - on both occasions - were driven to the bank by
Rana who instructed them where to go in order to cash their
cheques. Afterwards, they left the bank without paying any of
that money to Rana. The appellant's agent pointed out to the
appellant that taking into account the 4 cheques cashed by him
and his wife - within two or three days - they had $13,000 in
cash which was never deposited into their joint account. The
appellant explained that the sum of $4,000 had been sent to India
and some money was given to their children with whom they had
been living because they had just purchased a new home. Other
money was spent on general living expenses. In addition to the
two cheques - as described earlier - the appellant stated he
received - about 15-20 days later - the sum of $2,000 or $2,100
in cash as representing the final settlement of his wages. This
money was not deposited to any account. The ROE - tab 88 - was
completed by Rana and handed to the appellant at Rana's house.
The appellant stated he took the ROE to a seasonal HRDC office
that catered to farm workers - mostly Indo-Canadian -
applying for UI benefits. His application - tab 95 - was signed
by him - in Punjabi - but had been completed by a male person who
appeared to be working for HRDC. The appellant recalled attending
an interview - tab 87 - at an HRDC office where he was
interviewed by Ted Bowerman. His cousin
- Gurbax Kaur Randhawa - accompanied him for the
purpose of acting as interpreter. Darshen Narang pointed out that
the first question posed by Bowerman was whether the appellant
had completed the UI application himself and the recorded answer
is "No, Manjit Rana helped me". Gurmail Singh Cheema replied that
he had intended to say that Rana completed the ROE and not the
application. Although his answer to Bowerman suggested Harbhajan
Singh Kang was already at the Cheema residence when he returned
from India, the appellant stated that was not correct. The
appellant identified his signatures on Questionnaires at tab 84
and tab 100. The Questionnaire - tab 84 - was witnessed by
his daughter-in-law - Gurbaksh Kaur Cheema - and the
other one - tab 100 - was witnessed by Gurbax (Randhawa).
The appellant stated he did not recall the circumstances
surrounding the completion of either of those Questionnaires nor
where they were filled out. At Q. 9 - tab 100 - the answer
provided is that the appellant did not always have the same
driver. The appellant explained that Harbhajan Singh Kang was his
driver the first day and for nearly all the rest of his
employment time except for one day when he travelled on a bus.
The answer to Q. 14 refers to working with vegetables. The
appellant stated this work was done - for about two weeks -
in the middle of the growing season when he worked with his wife
picking zucchini, peppers and other vegetables on the "Chinese
Farm". He stated he did not recall Gurbax reviewing the contents
of the Questionnaire with him following completion and prior to
signing.
[58] The appellant - Gurmail Singh Cheema -
was cross-examined by Selena Sit. Counsel advised the appellant
that the notes - tab 82 - made by Janet Mah - Rulings
Officer - of a telephone conversation between herself and
Gurbaksh Kaur Cheema - interpreting for the appellant -
on June 3, 1999, indicated he identified Bhajan (Harbhajan) Kang
as his only driver throughout the entire period of his
employment. The appellant stated that answer was correct as he
had returned from work on a bus - once - but had been taken to
work that morning by Kang. The answer to Q. 7 - tab 100 - stated
he rode to work, "sometimes van, sometimes bus". The appellant
reiterated that he had ridden the yellow bus only once to return
home from work. The work performed in April and May was carried
out at the vegetable farm (Min Ho Farms) in Richmond prior to
picking berries. Counsel advised him the Minister relied on a
statement from the owner of that farm that he had not hired any
SRC labourers before July, 1996. Counsel read the appellant's
answer to a question - Q. 151 - concerning the type of work done
on his first day as given at Discovery on June 20, 2001. There,
the appellant stated his first work was with (picking)
raspberries, followed by blueberries. At Discovery, the appellant
stated he had not picked strawberries as part of his duties for
SRC. The appellant acknowledged he had given an affirmation to
tell the truth at Discovery but stated this answer was not
correct because he had picked strawberries for 4 or 5 weeks.
During the interview - tab 87, p. 2 - the appellant stated his
work involved "all kinds of berries" and - at p. 5 - there was a
recorded reference by the appellant to picking raspberries and
using flats. The appellant recited the order of tasks performed
by him during his employment with SRC. First, he worked at the
Chinese Farm picking vegetables, followed by picking strawberries
at the Khakh Farms, raspberries for Jarnail Farm and raspberries
and blueberries at Prem Farm, followed by pruning work at the end
of the season. Counsel referred the appellant to notes of his
December 16, 1997 HRDC interview - tab 87, p. 8 - concerning his
work locations, where it states he named 4 farms - none of which
included Khakh Farms - where he now maintains he picked
strawberries. The appellant stated he recalled working on the
Chinese Farm only twice and performed tasks relating to zucchini
and chili peppers. Counsel advised the appellant that at his
Discovery - June 20, 2001 - he had stated his last work performed
was picking berries. The appellant replied that was not correct
because the last portion of his work involved pruning and he
believes he must have stated that at Discovery. Counsel informed
the appellant that at Discovery, he had stated he did not pick
vegetables in the course of his employment with SRC. He stated he
did - in fact - pick vegetables and that he was paid an hourly
rate - $7 - for all tasks. The appellant stated that when he and
his wife applied for UI benefits, their applications were
completed by a Punjabi-speaking female at an office which
operated for one month in order to handle the UI claims of farm
workers (The office was not operated by HRDC nor any branch of
the federal government but was staffed by people hired by the
elders at the Sikh Temple). At Discovery, the appellant had
stated Shindo filled out the application form and "the Punjabi
girl looked at it". He replied that Shindo had not prepared that
form. Counsel referred the appellant to his Employee Earnings
Record - tab 91 - indicating gross earnings of $9,534 and
reminded him that his wife - in her HRDC interview on
August 25, 1997 - stated Rana still owed her $1,200 in
wages. The appellant replied he received a total of $6,000 - in
two separate cheques - and $3,200 in cash which was handed to him
at Rana's house when settling up wages owed to himself and his
wife. Although his wife was present, he thought she had forgotten
that part of the transaction. Counsel pointed out his answer to
Q. 33 of the Questionnaire - tab 100 - that
he was paid "by cheque" and that he provided the same answer
"cheque" during the interview - tab 87, p. 3 - when responding to
the question how he was paid "cash or cheque?" The same answer
was provided in the Questionnaire - tab 84 - dated April 7, 1999.
At Discovery in June, 2001, the appellant had stated there was a
balance of wages still owing to him but did not know the precise
amount. Counsel suggested to the appellant that because he is
aware that his earnings statement - tab 91 - purports to show he
earned a gross amount of $9,534, he has to invent some cash
payments in order to make up for the excess of the amount over
the only provable amount - $6,000 - he received in the form of
two cheques. The ROE - tab 88 - discloses insurable earnings in
the sum of $7,574. The appellant stated he merely accepted
whatever documents were handed to him and assumed they were
correct. A CCRA print-out - tab 99 - indicates the
appellant reported the sum of $9,534 as income when filing his
1996 income tax return.
[59] Darshen Narang, agent for the
appellant, advised the Court that the ROE - in box 15 - only
required earnings for the last 20 weeks to be reported therein,
regardless of the actual period of employment or the total amount
earned.
[60] The appellant stated that - in India -
he had not been involved in litigation nor had he ever been in
any court.
AJMER KAUR GILL
[61] Ajmer Kaur Gill testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2367(EI) - is
Exhibit R-15. The Minister decided the appellant was employed in
insurable employment with SRC for 22 weeks from May 26 to October
26, 1996 and had insurable earnings in the sum of $1,000. The
appellant's position is that she was employed from May 26 to
November 23 and had insurable earnings of $7,931 in accordance
with her ROE - tab 88 - issued by her employer. The Minister
relied on the following assumptions of fact as set forth in
paragraphs 4(j) to 4(q), inclusive, of the Reply to the
appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services to the Payer beyond
October 26, 1996;
l) the
Appellant was paid $1,000.00 by cheque dated August 1, 1996 by
the Payer and this cheque was negotiated on August 28, 1996;
m) the Appellant did
not receive any other remuneration from the Payer other than the
$1,000.00 admitted herein;
n) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip, the non negotiated
cheque dated November, 1996 for $7,438.00 payable to Agurmal Kaur
Gill and the Employee Earnings Record were fabricated to give the
appearance that the Appellant provided services to the Payer
beyond October 26, 1996 and was paid in excess of $1,000.00
admitted, and these records were a sham;
p) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
q) the
Appellant did not work for the weeks reflected in the ROE.
[62] The appellant stated she has been in
Canada 10 years after immigrating with her son and husband from
India. She had not received any education in India and subsequent
to her arrival in Canada had not attended any ESL classes. She
began working as a farm labourer - for Shindo - in 1993 and also
worked for her in 1994, 1995. In 1996, she recalled her first day
as either May 21 or May 24, a few days after returning from a
holiday in India. On that first day, Shindo drove her
- and 4 or 5 others - to work in a brownish-coloured
van. Her first task was picking strawberries and she picked
raspberries and blueberries as those crops became ready for
harvest. At the end of the season, she worked on vegetable farms
that grew zucchini, different types of peppers, and radishes. The
appellant stated her pay was $7 per hour regardless of the task
performed. While picking berries, she used a picking card that
was handed to her by Shindo or another driver each morning. Once
a flat of berries was full, she would take it to the weighing
station where a person would place it on the scale and then punch
the appellant's picking card to record the delivery. The same
procedure was used with respect to all types of berries picked.
At the end of the day, the driver would collect picking cards
from the workers and would announce the number of hours worked
that day. A new card would be handed to her the next morning.
Some farms used different colours for their picking cards but all
were in triplicate. The appellant recalled picking strawberries -
at the Khakh Farms in Chiliwack - for about 3 weeks. Next, she
picked raspberries at the "Mohinder Singh Farm" in Abbotsford and
at another property she could not remember. This harvest lasted
5-6 weeks and she moved on to pick blueberries for another 6 or 7
weeks, including cleaning up. Once the berry season had finished,
she began working in Richmond, on two different vegetable farms,
one owned by "a white guy" and the other by "a Chinese guy". She
recalled Shindo driving her to work in a brown van and sometimes
in a white van that Pinder also drove now and then. The yellow
bus was driven by Harjit Singh Gill. Although Bant was sometimes
with Shindo, the appellant stated she never met Manjit Rana. In
1996, the appellant operated - with her daughter - a bank account
at a branch of Hong Kong Bank of Canada. She can sign her name
and - with some effort - can understand numbers written on
cheques or other papers and demonstrated her ability to read time
according to the clock on the courtroom wall. The appellant was
referred to a photocopy of a cheque - tab 91 - dated August 1,
1996, in the sum of $1,000, signed by Rana and issued on the SRC
account at the TD bank in Vancouver. She identified her signature
on the endorsement. She was referred to tab 90 and a purported
SRC cheque - of the type earlier referred herein as a "I Cash
Money Give Cheque" - dated November 11, 1996 except the signature
of Manjit Singh Rana appears on the signature line. The name
written in the payee space is Agurmail Kaur Gill and the amount
is $7,438. The appellant identified her signature - as an
endorsement - on the reverse but stated it was not deposited into
her account. Her ROE - tab 88 - is made out in the name of
Agurmal K. Gill. The appellant explained Shindo sometimes called
her Agurmail instead of Ajmer but the cheque was properly paid to
her and the ROE - handed to her by Shindo - correctly states her
earnings and period of employment with SRC. The ROE - dated
November 28, 1996 - was used to apply for UI benefits and the
application was completed by her daughter and son-in-law who went
with her to the HRDC office on December 2, 1996. Ajmer Kaur Gill
recalled attending an interview - tab 92 - at an HRDC office on
October 30, 1997. She was accompanied by her son-in-law Jasbir
Singh Sandhu who was authorized - tab 93 - to act on her behalf
with respect to any dealings with HRDC. She could not recall
whether any other Punjabi-speaking person was present and could
not remember anyone asking her questions. She was referred to her
recorded answer to Q. 8 concerning the type of work performed and
to her response that she worked in a greenhouse where there was
"little pots of soil". The appellant stated she has no specific
recollection of the interview or having provided that answer.
Neither her daughter nor son-in-law worked for SRC.
The appellant was referred by her agent to a further HRDC
interview - tab 95 - on November 18, 1997 which she attended with
Jasbir Singh Sidhu who acted as her interpreter. She
stated she could not recall that event. Shortly after completing
her application for UI benefits - tab 97 - she began receiving
payments. When she cashed the $1,000 cheque - tab 91 - at her
branch of the Hong Kong bank, she was accompanied by her
son-in-law. Neither Bant nor Shindo were present. The appellant
stated she received a $3,000 cash payment - from
Shindo - early in the season and another one in the same amount
later on followed by a balance of $1,300 or $1,400 in cash
received after the final settling up of wages owed. The initial
$3,000 was requested because she needed money and the next $3,000
was required because she had to send money to India. The
first payment was received at Shindo's residence as was the
second, except on this occasion her son-in-law went with her. The
appellant agreed that when she received the first $3,000 she had
not worked enough hours at that point to justify this payment and
understood it was merely an advance against future earnings. The
cash was received in mixed denominations but she counted the
money and was satisfied that amount had been received. None of
this money was deposited into her bank account. The appellant
could not recall any circumstances pertaining to an unsigned
Questionnaire at tab 100. She recalled her children had been
instructed to record the number of hours she had worked each day.
After working for SRC in 1996, the appellant continued to work as
a farm worker for other labour contractors.
[63] The appellant - Ajmer Kaur Gill - was
cross-examined by Johanna Russell. She recalled attending a
Discovery on December 17, 2001 where she had become ill and
unable to continue. She remembered returning for Discovery on
January 30, 2002 and affirming to tell the truth. In India, she
worked - mainly in the house - on the family farm and the first
time she had earned money was in Canada. Her immigration to
Canada was sponsored by her daughter and husband and she lived
with them and their three sons in the Sandhu family home. She
recalled a letter arriving which concerned her UI claim as it
related to the work done for SRC. She had not encountered any
question arising about her entitlement to benefits before that
time, nor since. The appellant stated she could not recall her
grandson - Randy Sandhu - speaking to Janet Mah
as recorded in her notes - tab 82 - but agreed she must have
produced her bank book - at some point - after having been
requested to do so by an HRDC interviewer. Counsel pointed out
that at Discovery, the appellant had been certain Shindo had
driven only a brown van but during her direct examination had
stated Shindo also used a white van to drive workers to the
fields. The appellant confirmed that Shindo had used "kind of a
white van" and drove her to work at the vegetable farms in
Richmond, although Binder (Chahal) also drove her 4 times. Harjit
Gill drove the yellow bus to Abbotsford and Chiliwack. The
appellant was confident that Shindo had driven her to work both
the first and last day. Counsel reminded her that - at Discovery
- she had identified Binder as her driver on the last day, noting
"it had been very cold". Ajmer Kaur Gill replied she
doubts she gave that answer and repeated her assertion that
Shindo was her driver on the last day of work, which was - indeed
- very cold. Counsel advised the appellant that Binder Chahal had
stated in his Statutory Declaration - Exhibit R-5, tab 271 - that
he started work on July 1 and was laid off on November 16, 1996
and drove the light grey van every day unless it was being
repaired. The appellant's recorded answer to Q. 9 - tab 92 -
concerning her mode of transportation to work indicates she
identified her van drivers as Shindo and Harjit and stated that
Manjit Rana drove the bus. The appellant advised counsel that was
an error as she had never met Rana and it was Harjit - not Manjit
- who was the bus driver. At the second HRDC interview - tab 95,
- on November 18, 1997, the appellant's answer - at p. 3 - is
recorded that "sometimes the clt (claimant) would go to where
Manjit Rana was at to get her money if he was staying at a house
where she could walk to". Ajmer Kaur Gill replied that she could
not have given that answer as she had never seen - let alone met
- Rana. At Q. 35 of the Questionnaire - tab 100 - the answer
given was that Manjit Rana had paid the appellant and - at Q. 27
- also had recorded her hours and - at Q. 30 - that Shindo and
Rana had been her supervisors. The appellant stated she had not
provided those answers to whomever had completed that form on her
behalf and that the information therein was wrong. Counsel
advised the appellant that certain documents - including an ROE
and Shindo's own statement to HRDC investigators - caused
the Minister to accept that Shindo was laid off on
October 26, 1996. The appellant replied that this date may
be the one written on some papers but Shindo was her driver while
working on vegetable farms in Richmond during late October and
November. She recalled Harjit Gill had driven her to work - in
the bus - during berry season. Concerning the first payment of
$3,000 in cash, she agreed it had been received about two weeks
after starting work when she had probably not earned more than
$700. However, she thought that by the time the second payment of
$3,000 was received, she had worked enough to justify the total
amount paid to her. Although her answers - at Discovery - were
that her son-in-law had gone to Shindo's house with her in order
to collect the first payment of $3,000, the appellant stated
that was not correct since she was accompanied by him only during
the second visit. She stated she could not recall the answers
provided either at the HRDC interview - tab 92 - or at Discovery
concerning the timing of her cash payments but agreed she made
the statements recorded in the transcript of that proceeding - at
Q. 251 - which indicated she received $3,000 in cash after
two weeks of work, followed by the $1,000 cheque
- tab 91 - received in August and a further sum of
$3,000 in cash in October and a final cash payment of $1,400,
plus or minus $20, at the settling up meeting in Shindo's house,
for a total of $8,400. Her earnings statement - tab 89 -
indicates net earnings of $8,438. At the HRDC interview - tab 95
- the appellant - at p. 3 - was not able to recall the amounts of
the payments or when they were received stating "this was over a
year ago now". The appellant stated the inconsistency was due to
the fact she had not prepared herself for the HRDC interview but
had done so prior to attending Discovery. The appellant agreed
that when she received the $1,000 cheque
- tab 91 - it was the only document ever
issued by SRC that used her correct name because her ROE - tab 88
- and the "I Cash Money Give" purported cheque
- tab 90 - were in the name of Agurmal K. Gill
and Agurmal Kaur Gill, respectively. The appellant stated the
usual working day was 8 hours, "sometimes less, sometimes more"
and usually worked 6 days per week, perhaps 7 on occasion.
Counsel referred her to the HRDC interview - tab 92 - and her
answers - as recorded - to several questions concerning hours and
days of work at Qs. 17, 22 and 23 which indicate the appellant
worked at $7 per hour, 7 days per week, 10 hours a day and
that maybe she had taken one day off. The appellant stated she
had not provided those answers and advised the Court "what is
written down there is a lie". She added that she was told by the
drivers she had worked 10 hours on certain days and stated
it was obvious a person had to take a day off every now and then.
Often, she rode in the same van as her co-worker (and
co-appellant) Taro Kaur Bassi, although sometimes
Bassi was dropped off at a different farm. Bhagwant Grewal lived
across the street and rode in the same van. Counsel advised the
appellant the pay records for Grewal - and statements to HRDC
interviewers - indicated Grewal worked 10 hours per day, 6 days
per week and always had one day off per week, mostly Sunday but
the entries on the appellant's pay statement - tab 89
- were based on 112 hours every two weeks or 56 hours for a
single week. The appellant replied that she - and other workers -
were upset at the need to attend HRDC interviews and discuss
their employment at SRC because they had worked very hard. As a
result of her distress, she was "unable to tell the truth at the
interviews". Counsel advised the appellant that some of her
co-workers had testified they were paid by the flat or the pound
for picking berries. The appellant confirmed she was always paid
$7 per hour for her work. Concerning her layoff, the answer
recorded at the interview - tab 92, Q. 4 - was that Manjit Rana
had told her "a couple days earlier while she was at work that
she would be laid off". The appellant stated it was Shindo who
had made that statement - not Rana - and denied she had given
that answer as noted. At Q. 18, the interviewer -
Joann McInnes - wrote that the appellant had said she would
"borrow money from Shindo or Manjit". The appellant stated these
answers were not accurate and had been written down incorrectly
like on the occasion when she had allegedly named Rana as her bus
driver. She reiterated she had never met Rana in 1996 and would
not be mentioning him when discussing her work. Counsel advised
the appellant the Minister had relied on information that the Min
Ho Farms - often referred to by the workers as the Chinese Farm -
had not grown any peppers during 1996 but only zucchini or
daikon, also known as lo bok. The appellant stated she - and 4 or
5 other workers - picked peppers, cucumbers and zucchini and -
inside a greenhouse - also packed some vegetables into boxes. The
appellant agreed she was the only one in her household who had
worked for SRC in 1996 and that there had been several answers
written down in the Questionnaire
- tab 100 - stating that no picking cards
had been used by her during the course of her employment with
SRC. The appellant stated those answers are not correct as she
used picking cards nearly every day for 4 months while picking
three different types of berries.
[64] In re-examination by her agent -
Darshen Narang - the appellant - Ajmer Kaur Gill
- stated she sometimes rode in a bus - from Vancouver to
Abbotsford or Chiliwack - with 40 or 50 other workers. At some
farms, there was a large number of workers provided by other
labour contractors. The appellant noted that while Gill is a
common Indian family name and Ajmer is also quite common, she had
never heard of the first name, Agurmal, written on her ROE.
RAVJIT GILL
[65] The appellant - Ravjit (Ravi) Gill -
testified in English but the interpreter - Russell
Gill - was in Court throughout his testimony in order to assist,
as required. The respondent's Book of Documents relevant to this
appeal - 2000-2368(EI) - is Exhibit R-18. The
Minister decided the appellant was not employed in insurable
employment - with SRC - during the period from June 16 to October
26, 1996 because he was not employed under a contract of service.
The appellant's position is that he was employed in insurable
employment during said period and had insurable earnings in the
sum of $7,392. The Minister relied on the following assumptions
of fact as set forth in paragraphs 4(j) to 4(l), inclusive, of
the Reply to the appellant's Notice of Appeal:
j) the
Appellant gave conflicting statements to authorities with respect
to the method of pay and the timing of same, the rate of pay, the
days and hours of work, the names of the farms, the identity of
fellow workers and the transportation method;
k) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record, the pay cheques, in regards to the Appellant,
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
l) the
Appellant did not perform any duties for the Payer during the
Period.
[66] Ravjit Gill stated he was born in 1971
and arrived in Canada - in 1994 - with his parents and two
sisters. Although he attended 300 hours of ESL classes during
1995 and 1996, he did not continue formal education which
consisted of Grade 10 in India. Later in 1994, he started working
for a flooring company until December when he went to India for a
holiday. On his return in April, 1995, he began working at a
convenience store in White Rock, B.C. and when it ceased
operations, found employment in another store in the same chain
at Coquitlam, B.C. where he remained for only a few weeks. In
1995, he did some work for Rana and after being laid off,
attended the local UI office to locate other employment. He
stated he worked for Rana (SRC) from June 16 to October 26, 1996
until he was laid off. In 1997, he began driving taxi and still
works in that occupation but currently owns his own vehicle. He
was married in 2000 and he and his wife lived with his parents.
In India, he had worked on their family farm. Early in June,
1996, he telephoned Rana inquiring about work and Rana advised he
would let Gill know when work started and later telephoned to
confirm a job was available. For the first two weeks, he drove
his own vehicle - insured in the name of his sister - to work on
a farm in Richmond where he performed tasks pertaining to onions,
turnips, carrots and a long, white radish (lo bok). Later, he
picked strawberries for between 10 and 12 days followed by
raspberries and blueberries. He picked both strawberries and
raspberries at the Khakh Farms and at other farms in the
Chiliwack and Abbotsford areas. He estimated he picked
raspberries for 10 days and blueberries for about 15 days.
However, most of his work was done at the Min Ho Farms, Mike's
Farm and McKenzie Farm, all in Richmond. At any given time on any
of those farms, there were between 10 and 15 workers. The vans
hauling them to work were not marked so it was difficult to
differentiate between SRC workers and others who may have been
supplied by other labour contractors. Ravjit Gill stated that -
for the most part - he drove himself to work and would leave for
home when informed the working day was over. He stated Rana -
over the phone - had promised him $8 per hour but when he did
receive some pay, it was based on the hourly rate of $7. He
stated he never considered working on any basis other than by the
hour. In his other jobs, he had been paid every two weeks but
that was not the practice at SRC. He started working at 7:00 a.m.
each day and quit between 4:00 p.m. and 5:00 p.m. and - each day
- recorded the hours worked in a notebook. At some point, he
handed in his hours to Rana but did not receive any pay
therefrom. Later in the season, the appellant's father
- Gurbachan Singh Gill - also worked for SRC
as a van driver. However, he stated he did not have good
relations with his father and chose not to ride to work in a red
van driven by him. He preferred to use his car but if someone in
his household needed that vehicle he rode to work in a greyish
van - driven by Bhan Singh - about 15 to 20 times during his
employment. Usually, between 7 and 10 people rode in the van but
he preferred to drive himself to work because it allowed him to
get some extra sleep and he accepted the cost of purchasing gas
as a tradeoff. While working at a farm - in Richmond - he saw
Bant - for about 20-30 minutes - giving instructions to some
workers. He had not met him formally and knew Shindo was Bant's
wife. The appellant identified his ROE - tab 89 - but advised he
was not paid in accordance with the schedule set out therein.
Instead, he received his first payment by cheque - tab 91 -
dated September 22 - in the sum of $3,000 - which he deposited to
his Canada Trust account on September 27. Otherwise, the only
other money paid to him was in small sums of $15 or $20 - on 4 or
5 occasions - which Rana seemed to consider as loans despite
owing arrears in wages. The appellant identified a copy of his
Canada Trust account - tab 96 - and confirmed the entry - on p. 5
- representing the deposit of that $3,000 cheque. The appellant
stated he received another cheque - tab 92 - in the sum of
$2,000. The cheque - dated September 27, 1996 - was
deposited to the appellant's account on October 3, 1996. A
final cheque - tab 93 - dated September 29, 1996 - in the sum of
$1,900 - was deposited into the appellant's account on October
24, 1996. The appellant stated he received a total of $6,900 in 3
cheques together with about $200 in cash which had been received
in small amounts from time to time from Rana who had also been
repaid some of those amounts on occasion. The ROE - tab 89 -
dated October 27, 1996 was signed by Rana and handed to the
appellant at Rana's residence. The appellant stated Rana told him
there was no more work. On November 4, 1996, the appellant
applied for UI benefits - tab 90 - and stated he received
assistance - from a male person - to complete that form. Ravjit
Gill stated he did not know Manjit Rana - personally - and never
saw him driving any vehicle. As for the work schedule followed at
SRC, the appellant stated he took a day off - sometimes - as a
matter of choice and other times if the weather was bad. On
occasion, workers were told to quit earlier than usual. The
appellant recalled attending an interview - tab 95 - on August
27, 1997 when he was asked a series of questions by Janice
Morrow, an HRDC employee. He also attended another HRDC interview
- tab 101 - on February 11, 1998. On both occasions, the
appellant was accompanied by his cousin, Satnam Aujla, who
assisted by interpreting certain aspects of the matter into
Punjabi, as required. Sometimes, the questions were translated -
fully - into Punjabi and the answers by Ravjit Gill - in Punjabi
- were interpreted in English to the interviewer by Aujla. The
appellant stated that - in 1996 - he did not know that Bant and
Rana were related but had learned afterwards that Rana is Bant's
brother-in-law. The appellant identified his signature on the
Questionnaire - tab 104 - that he completed and returned to
CPP/EI Appeals Vancouver office. The answer to Q. 7 concerning
the mode of transportation to work is "Van and Bus Both (some
days diff (different)) bus or van". The appellant replied he had
not considered it particularly significant to inform anyone that
he had driven his own vehicle to work most of the time and
- overall - did not pay a lot of attention when
completing the Questionnaire. The appellant agreed he had
responded to Q. 11 of the Questionnaire that he had ridden
in a van which was greyish-white but added that "old vans look
alike". However, his best current recollection is that he rode to
work in a "reddish" van, at least 10 or 12 times. Responding to
Q. 31(c) of the Questionnaire, the appellant stated his pay was
$8 per hour. He explained that he considered that was his wage
before any deductions for income tax. His answer to Q. 34 was
that he did not remember how much he had received by cheque or in
cash. The appellant stated that when he deposited each of the
three SRC pay cheques to his own account, neither Bant nor Rana
nor Shindo went with him nor was any principal of SRC present at
the UI office when he applied for benefits. Since working
for SRC in 1996, the appellant stated he has had no contact with
Rana.
[67] The appellant - Ravjit Gill - was
cross-examined by Johanna Russell. The appellant stated the
individual - Satnam Aujla - identified as a cousin at an HRDC
interview is married to his sister - Amrit - who sponsored the
appellant and his parents and his other two sisters to come to
Canada. In 1994, he lived in a basement suite about a 5-minute
walk from his sister's house and in 1996 lived in a suite in her
house until moving - in mid-farming season - to a new house in
Surrey purchased by him and his parents. That property had a
basement suite which was rented to a tenant and the balance of
the mortgage payment each month was about $600. The appellant
stated that - in 1996 - he transferred the sum of $2,664 from
India to Canada through a private exchange and this amount was
deposited to his account at Canada Trust as revealed by the entry
- tab 96 p. 3 - on April 13, 1996. Although the vehicle - a
1986 grey, Hyundai Excel - that the appellant drove to work was
insured in the name of his sister - Amrit Aujla - he stated he
bought that car in 1995 or 1996 for $1,500 or $1,600. Because
Amrit was entitled to receive a discount from ICBC - based on her
lack of claims - the car was insured in her name and she paid the
premium. Counsel advised the appellant that his father - and
co-appellant - Gurbachan Singh Gill - at Discovery - had stated
that there was only one car in the Aujla/Gill household at that
time. Ravjit Gill replied that - in 1996 - Satnam Aujla owned a
Toyota Corolla and at some point later, his sister acquired a
car. While working for SRC, the appellant stated he had no
interaction with Bant and/or Shindo. He performed the tasks
required of him and - following layoff - applied for and received
his UI benefits based on his ROE (tab 89). In his view, there was
no reason to remember dates pertaining to the picking seasons of
berries or details of the nature of work done at the vegetable
farm. He admitted his lack of recall of events in 1995 and 1996
was probably due to "loss of memory from drinking too much".
Although he had not been asked any question by counsel requiring
this sort of response, the appellant stated "I am the only son
and even if I do stupid things, people listen to me". In 1995 and
1996, he attended ESL classes for 3-4 hours per day for a total
of 300 hours and explained his primary purpose for seeking that
instruction was that he considered it an appropriate place to
"find a girlfriend". He drove to work in the Hyundai Excel on his
first day and stated no one else from his household rode to work
in that car. He estimated he rode to work 15-20 times in a van
driven - mostly - by Bhan Singh and recalled riding with another
man - unknown to him - who appeared to be about 50 years old.
When he rode in a van, he recalled riding with Ravinder Singh
Lali and another man he knew as Sandhu. Counsel advised the
appellant that at Discovery - p. 58, Qs. 377, 378 - he stated
Bhan Singh had picked him up at his home in Surrey and driven him
to work. The appellant replied that he had driven to work
that first day in his own car and explained that he had been
"careless" when giving answers at his Discovery. During the
August 27, 1997 interview - tab 95, p. 1 - with
Janice Morrow at the HRDC office, the appellant stated he
drove his own car to work "all the time" and - at p. 2 - advised
Morrow that he had never ridden to work in a van because "I
always drove myself". The appellant replied those answers were
incorrect and he should not have used the word "never" because he
had ridden to work in a van several times. During the interview -
tab 101 - the appellant - at p. 5 - was asked by HRDC employee
Gail Buckland whether he drove himself to work in the Hyundai
Excel. The recorded answer by the appellant is, "sometimes my
sister gave me a ride & sometimes I borrow car". At p. 8, he
told Buckland that his sister made the payments on the car. The
appellant stated those statements were not correct since the car
had been purchased outright in a private deal for $1,500 or
$1,600 cash with money given to him by his sister, Amrit. He
surmised the interviewer had made an error when writing down his
response to that question. In responding to the Questionnaire -
tab 104 - the written answer to Q. 5 concerning method of
transportation to work each day was "the employer arranged it by
his transport". Ravjit Gill responded that he had driven himself
to work most of the time rather than riding in a van and that he
had completed that form without paying much attention. He
acknowledged he had written answers to Q. 7 and Q. 12 indicating
he had ridden to work in both a van and a bus and had been picked
up at his own house. The appellant explained that although he can
speak English fairly well, he does not always read with full
understanding. He could not recall whether he had ever driven his
father - Gurbachan Singh Gill - to Rana's residence in
Vancouver. He agreed he did not have a clear recollection of the
tasks performed during his first couple of weeks. In his direct
examination, he stated the first work was in relation to onions
at the Richmond vegetable farm. At Discovery - Q. 71 - he stated
that he picked strawberries his first day and agreed both answers
could not be correct. He recalled that when picking strawberries
and raspberries, he placed berries into flats which were taken to
a cart pulled by a tractor. He was not always handed a picking
card but was aware his flats were counted and remembered the
raspberry flats were weighed but was uncertain whether that
practice also applied to strawberries. He pointed out that he did
not pay much attention because he knew he was being paid by the
hour. He heard from other workers that some people were working
on a piecework basis at different rates, depending on the berries
being picked. He did not share a flat with any other worker but -
from time to time - would add some of his berries to the flat of
an older female worker in order to top up her container. When
issued a picking card, he kept it in his pocket and a punch with
an "*" was used to record weight of a flat if it seemed to be
less than full when delivered to the station. During the
interview - tab 101 - the appellant - at p. 12 - told
Gail Buckland that he had not picked berries. However, he
explained that in the context of those questions he thought it
was concerning the work done at the Chinese Farm where he had
only worked with vegetable crops. Counsel reminded the appellant
that during his interview - tab 95 - with Janice Morrow he had
never mentioned picking any berries in the course of his
employment with SRC and had provided information concerning only
work done on farms in Richmond and when speaking to Gail Buckland
later had not mentioned picking berries. The appellant replied he
had not been asked - specifically - whether he had picked berries
at any location other than at Richmond. The Questionnaire - tab
104 - was completed by the appellant in his own handwriting.
Counsel referred him to the answer to Q. 4 where he was requested
to provide details of where duties were performed. The
appellant's response was that he worked on "various farms" naming
locations already identified as vegetable farms in Richmond. In
responding to Q. 14, the appellant was invited to provide a
detailed description of the type of work performed during each
month of his employment. The appellant wrote that he was "working
as a farm worker, lots of kinds vegetables" but added he did not
remember all the locations. At Discovery, he mentioned working at
three vegetable farms where he performed tasks pertaining to
turnips, onions and zucchini. Counsel asked the appellant why he
would not have mentioned picking berries. He replied his memory
is not good and he cannot recall the months he picked certain
types of berries. Further, he did not fully understand the
purpose of the Discovery and agreed he had provided incorrect
answers concerning his use of picking cards when he stated he had
only used a card at the Khakh Farms. Counsel advised the
appellant that all appellants had testified that strawberry flats
were weighed and he conceded that was probably correct. At
Discovery - Q. 519 - he stated he had not used any picking card
for blueberries and when completing the Questionnaire
- tab 104 - his response indicated - at Q. 40 -
he had never used picking cards. He acknowledged that during the
second HRDC interview - tab 101 - he was asked - at p.
12 - to name some of his co-workers but was unable to do so and
explained to Gail Buckland the young women were referred to as "
sister", and the older females were called "auntie". At
Discovery, the appellant could not recall any full names of his
co-workers. In direct examination, he stated he worked with
Ravinder Singh Lali. Counsel referred the appellant to
Exhibit R-1 - a list of SRC employees during 1996 - and advised
that Lali's name did not appear thereon. The appellant insisted
he had worked with this person. He stated he had maintained his
own record of hours but since discarded that paper. Counsel
informed him his response to Gail Buckland - p. 7 of the
interview tab 101 - to her query why he had not kept track of his
hours was "I don't need to". The appellant acknowledged he had
been careless when giving that answer. Concerning the three
cheques received for his wages, the appellant stated the first
two were handed to him - by Rana - during work at a farm and the
last one was obtained at Rana's house. The cheques totalled
$6,900 and the appellant stated he was "thankful Rana paid me".
He advised counsel he had not seen his alleged pay statement -
tab 94 - showing gross pay of $7,392 and net earnings in the sum
of $6,376. He agreed that the calculations - if accurate -
demonstrated Rana had overpaid him. He stated that after his
layoff and while in the process of sleeping off a hangover, Rana
telephoned his residence and indicated he wished to speak to him
about some money - $525 - the appellant supposedly owed to him.
As a result of that demand, the appellant spoke to other workers
who advised him to pay what Rana wanted. Two days after the
initial telephone conversation, Rana called the appellant and the
appellant agreed to pay Rana the sum of $500 - rather than $525 -
and had bargained to get that discount on the basis of the
inconvenience arising from the need to drive to Rana's home - in
Vancouver - just to repay the money. Counsel advised the
appellant that - at Discovery - although his story about the
phone calls was basically the same, he said - there - he returned
the sum of $525 even though he had argued with Rana about a
discount. With regard to the timing of cheques received, the
appellant stated he was unsure whether he received the last two
before or after his layoff. At the HRDC interview - tab 95 - with
Janice Morrow the appellant denied paying any money back to Rana.
He explained he had not regarded the return of the overpayment of
$500 as paying money back to Rana. He could not specifically
recall the warning issued by Morrow - immediately preceding that
question - to the effect he must tell the truth about his work
situation at SRC and that there were penalties for providing
false information. During his interview with Gail Buckland - tab
101, p. 9 - the subject of overpayment was discussed and the
appellant told Buckland that there might have been a mistake
concerning his net pay which was $524 more than shown on his
earnings statement. When asked by Buckland if he would have
returned that amount, he stated "maybe, if he gave me proof".
Counsel suggested to the appellant that he had returned - to Rana
- all the money paid to him by the three cheques and had worked -
if at all - in order to receive an ROE which entitled him to
receive UI benefits. Counsel referred him to his banking records
- tab 96 - and to an entry on September 28, 1996 of a withdrawal
in the sum of $1,000. On October 3, 1996, the SRC cheque - dated
September 27, 1996 - was deposited into that account and on
October 5, 1996, the sum of $10,000 was transferred out of the
account. The appellant stated that although he could not recall
the purpose of the $1,000 withdrawal, the sum of $10,000 had been
sent to India for purposes related to a house he owned there. The
last SRC cheque - in the sum of $1,900 - was deposited to the
account on October 24. On November 1, the sum of $800 was
withdrawn followed by another withdrawal of $2,000 on November 8.
The appellant could not recall the purpose for either transaction
but denied that he had participated in any scam with anyone at
SRC and stated he had not received any money on behalf of his
father - Gurbachan Singh Gill - for his wages nor
had he returned any money to the contractor at the request of his
father.
[68] The appellant - Ravjit Gill - was
re-examined by his agent, Darshen Narang. He explained his poor
performance during the HRDC interview - tab 95 - was due to his
hangover and the fact he had consumed "a couple drinks to
straighten up" prior to attending at the HRDC office. He stated
he often referred to his brother-in-law - Satnam
Aujla - as his cousin and regarded those terms as
interchangeable. He acknowledged that during the next HRDC
interview - tab 101 - Aujla is described as
a "friend". Ravjit Gill stated he had been drinking the night
before that interview and would drink nearly every day if he had
money. He stated he repaid about $200 in loans to Rana which he
received during his employment when he needed small amounts of
money to buy gas or go drinking with his friends. He also repaid
the sum of $500 which - according to Rana - was an overpayment of
wages but had not purchased his ROE as part of a scheme to
fabricate employment.
INDERJIT SINGH ATWAL
[69] Inderjit Singh Atwal testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2362(EI) - is
Exhibit R-9. The Minister decided the appellant was not employed
in insurable employment with SRC during the period from December
29, 1996 to January 11, 1997 because he was not employed under a
contract of service. The appellant's position is that he was
employed in insurable employment during said period and had
insurable earnings in the sum of $672. The Minister relied on the
following assumptions of fact as set forth in paragraphs 4(j) to
4(o), inclusive, of the Reply to the appellant's Notice of
Appeal:
j) the
Payer ceased business operations prior to the Period referred to
in the Appeal herein;
k) the
Appellant gave conflicting statements to authorities with respect
to the duties performed, the method of pay, the identity of
fellow workers and the days and hours of work and the locations
of the work;
l) the
records provided, for example, the ROE, the T4 slip, the employee
earnings record, in regards to the Appellant, were fabricated to
give the appearance that the Appellant worked for the Payer and
these records were a sham;
m) the Appellant was
not paid any amount by the Payer;
n) the
Appellant required the weeks reflected in the ROE in order to
qualify for employment insurance benefits; and
o) the
Appellant did not perform any duties for the Payer during the
Period.
[70] The appellant stated he was born on
January 1, 1954 and arrived in Canada on February 23, 1993. In
India, he went to school until Grade 4 and did not continue his
schooling nor attend ESL classes in Canada after immigrating. He
farmed in India - on leased land - and his entry to Canada was
sponsored by his wife, Gurpal Kaur Atwal, who had come to Canada
in 1990 after completing Grade 10 in India. He stated his
wife could read and write some English and could understand
English better than she could speak it. The appellant stated he
cannot read, write, speak nor understand English and cannot read
nor write in Punjabi. He stated he understands numbers - in
English - and obtained a Driver's Licence by using the services
of a Punjabi interpreter. He and his wife have a 10-year old
daughter in Grade 4. After arriving in Canada, the appellant
worked at an airport for one year until his employer lost the
contract and he was laid off. He received an ROE which he took to
a UI office but did not receive any benefits because he was hired
by the new cleaning contractor - at $8 per hour - and worked
there until October, 1995. Following layoff, he applied for and -
for the first time - received UI benefits. In 1996, he worked as
a labourer for a labour contractor
- Santokh Hothi - between June 1 and October 5,
during which time he picked and sorted potatoes and packed them
into boxes. He earned $7.50 per hour and worked 10 or 11 hours
each day. Upon receiving his ROE from Hothi, the appellant
thought he needed between 18 and 20 weeks of employment in order
to qualify for UI benefits. Shortly after finishing his work
with Hothi, the appellant heard about a temporary cleaning job
from a person who was going to England for a month. He applied
for that position and worked for Zeacan at the mall in Richmond
for 6 weeks. When the original worker returned from his
holiday, the appellant was laid off and received his ROE.
Following that layoff, the appellant stated he found work with
Bant and/or Shindo and worked on December 29 and December 30,
1996 and from January 2 to January 11, 1997. He stated he cleaned
up house construction sites by piling up material and covering it
with a protective sheet. Prior to December 29, 1996 he had not
worked for Bant and/or Shindo and/or Rana and/or SRC. Inderjit
Singh Atwal stated he met Bant - whom he knew to be a labour
contractor - at the Sikh Temple on December 27 and asked for
work. The next day when he telephoned Shindo, she informed him
there was some cleaning up to be done at various construction
sites. The appellant stated he started work and was driven to the
jobsite each day. At the end of the work, he received a cheque in
the sum of $580 which he understood represented his wages - after
deductions - from gross earnings of $672, on the basis of $7 per
hour for 96 hours. The appellant stated he worked 11 days for
Bant and arrived at Bant's house each morning at 6:30 a.m. in
order to be driven - in a brown van - to the work location. On
occasion, Bant would remain and assist to stack drywall sheets.
During his employment with Bant (SRC), the appellant worked at 5
or 6 different house construction sites where the houses were
framed but had no doors installed. Until Bant drove him to a
site, the appellant stated he did not know where the work would
be performed. In the event he finished early, he waited until
Bant arrived to pick him up and drive him directly to his
residence. The appellant stated the work days ranged from 7.5 to
8.5 hours and Bant seemed to be capable of estimating the time
required to complete each job. According to what Bant told him,
the appellant thought the jobs were performed in Richmond. Even
though there was some snow on the ground in January, 1997, it did
not interfere with his cleanup work. After receiving the SRC
cheque - in the sum of $580 - the appellant went to the SRC
branch of the TD bank and attempted to cash it but was informed
by the teller there were not sufficient funds in the account. He
returned the cheque to Bant and about 20 or 25 days later was
paid the sum of $580 - in cash - by Bant who also handed him an
ROE - tab 87 - pertaining to the 11 days of work. Although
the ROE is dated January 16, 1997, the appellant estimated he
received it about January 26. He applied for UI benefits - tab 95
- and brought his other ROEs to the HRDC Fraser St. office,
including those issued by Hothi, Scandinavian Cleaning and
Zeacan. Later, SRC issued him a T4-1996 which he filed with his
income tax return for the 1996 taxation year even though his
payment had not been received until January, 1997. In 1997, he
began receiving UI benefits based on the total time spent working
at several jobs. The appellant identified a photocopy of the SRC
cheque - at tab 4 of the Respondent's Miscellaneous Book of
Documents, Exhibit R-8 - dated January 11, 1997. After being
told the cheque was no good, the appellant made a copy of the
cheque before returning it to Bant. Although the cheque was
signed by Rana, the appellant recalled Shindo had filled it out
and handed it to him. He also recognized the photocopy of the
Employee Earnings Record - tab 88 - indicating he was entitled to
a net payment of $584. Although the cheque is dated January 11,
1997 - his last day of work - the appellant did not receive it
until two or three days later and the cash to replace that NSF
cheque was received - together with the ROE - 20 to 25 days after
that. The appellant recalled attending an HRDC interview - tab 82
- on June 12, 1997, after receiving a telephone call requesting
him to bring in his Indian passport, issued in the name Inderjit
Singh. The appellant changed his name from Inderjit Singh to
Inderjit Singh Atwal and received a Change of Name
certificate - tab 81 - dated February 5, 1997. He remembered
being questioned by a "white guy" (Michel Fontaine) and that
an "Indian guy" (Sarb Sandhu) acted as Punjabi interpreter.
During the interview, the appellant - at p. 6, tab 82 - informed
Fontaine that Bant drove him to work in a "sky blue" older-model
van. He explained the interpreter must have made a mistake
because he recalled saying it was a brown van. At p. 9, the
appellant had described seeing 40-50 workers seated in a yellow
bus outside Bant's house during June and July, 1996 even though
he had not worked for SRC and/or Bant until December 29, 1996.
The appellant did not clarify the purpose of that statement and
agreed the Bant/Shindo employees had not worked with him while
employed by Hothi - another labour contractor - who supplied
workers to the Lohr Farm.
[71] The appellant - Inderjit Singh Atwal -
was cross-examined by Selena Sit. The appellant recalled being
asked questions about SRC during his HRDC interview with Michel
Fontaine. The typed notes are at tab 82 and a handwritten
document entitled Supplementary Record of Claim is in Exhibit R-9
at tab 89. Richard Blakely, an employee of Revenue Canada was
also present. The following day - June 13, 1997 - the appellant
was interviewed by Michel Fontaine and the Punjabi interpreter
was Kal Tarlal, an HRDC employee. The notes of said interview are
at tab 91. Michel Fontaine interviewed the appellant a third time
on February 17, 1998 and the notes are at tab 93. The appellant
stated he was aware he was under an obligation to speak the truth
during these interviews but admitted some answers are wrong
because he merely repeated some things Shindo told him to say.
Prior to attending one of the interviews, because he had never
had a problem arising from receiving UI benefits in previous
years, he sought advice from Shindo concerning inquiries by HRDC
- apparently related to his work for SRC - and his entitlement to
UI benefits received in 1997. The appellant identified his
signature on his application - tab 95 - dated February 8, 1997
for UI benefits. He had applied for benefits earlier - December
9, 1996 - but thought they had not been issued because he found
work with SRC at the end of December. Counsel informed Atwal that
according to calculations relied on by the Minister, he had
required 26 weeks of employment - in 1996 - to qualify for UI
benefits and his 18 weeks working for Hothi and the 6 weeks
at Zeacan left him short two weeks. He confirmed that prior to
December 29, 1996, he had not worked for SRC or any of the
apparent principals of that company. During the interview, the
notes - tab 93 - made by Fontaine
state the appellant explained his failure to receive an ROE from
Bant immediately after layoff was due to the fact "his stamps
were not made". The appellant denied making that statement.
During his work for SRC, he picked up pieces of wire, bits of
wood, sheets of drywall from inside the house which were moved
outside to a sundeck or a garage, if there was one. Sawdust and
dirt was swept up and placed into garbage cans or boxes and the
walkway around the house was cleaned. Counsel advised the
appellant that during the interview - tab 89 - on
June 12, 1997 he told Fontaine that the work was "always outside.
It was cold but had raincoat" (Q. 8). The appellant denied giving
that answer and stated he worked inside and outside depending on
the task. Counsel referred to notes made by Fontaine of the
appellant's response to Q. 26 after being advised there was over
two feet of snow on the ground during the period he claimed to
have been working outside doing clean-up work. According to
Fontaine's notes, the appellant - after some hesitation -
proceeded to describe how he installed large sheets of material
on walls inside houses that were being built in Richmond.
Inderjit Singh Atwal stated he did not recall giving that
answer because all the work done in relation to drywall involved
only picking up loose pieces and stacking them for more
convenient storage. The next day, the appellant attended
another interview - tab 93 - and identified photographs of Bant,
Shindo and Manjit Rana. During said interview, he stated it was
Manjit Rana who had telephoned him to advise there was some work
and that Rana had handed over the ROE following layoff. During
his discussions with Fontaine, the appellant's statements were
noted to the effect that he had worked near Manjit Rana - but not
with him - when Rana would "set up cauliflower boxes at a farm on
No. 3 Road". Fontaine also noted the appellant explained working
outside one day but the rest was performed inside when he packed
cauliflowers and potatoes. The potatoes were packaged - in
plastic bags - directly from a truck as they flowed down a chute
into "some kind of machine". Fontaine noted the appellant said he
had "worked with two older ladies who primarily bagged the
potatoes" but these ladies had not travelled to work with him in
the same van. Counsel pointed out to the appellant that at one
point in the interview - tab 91 - Fontaine had advised the
appellant he had given three different versions of his employment
with SRC. One was that he did clean-up work inside; second, when
it was pointed out there had been a large snowfall, the appellant
had explained he assisted Bant to instal drywall inside new
houses and - third - that he performed farm labour work involving
potatoes. The appellant stated the confusion was probably due to
the difference in Punjabi dialects which can vary every
20 kilometers between villages and - perhaps - he had not
understood the questions, as repeated to him by the interpreter.
He denied telling Fontaine that his work in January, 1997 was all
done on a farm and was not construction work. The appellant
stated Bant had driven him to and from work every day for 11 days
and - rarely - assisted him to move any sheets of building
material. Counsel advised the appellant that in an interview -
Exhibit R-1, tab 21 - Bant had advised an HRDC investigator that
he had not driven the appellant to work and claimed he never saw
him and that during this period - according to the ROE, Exhibit
R-4, tab 20 - Bant had a full-time job with a seafood
company. The appellant replied that Bant may have had a job but
had still driven him to work each morning and back home each
night for 11 days. Concerning the days allegedly worked, counsel
referred the appellant to various versions supplied by him. His
recorded answer to Q. 22 of the interview - tab 89 -
is that during the last week he worked Saturday and Sunday.
Earlier in his testimony, the appellant stated he worked on
December 29 but did not mention December 30 or December 31.
According to the 1996 calendar - Exhibit R-32 -
December 30 was on Monday and December 31 on Tuesday. The 1997
calendar was filed as Exhibit R-33. Counsel pointed out that if
he had not worked one Saturday and one Sunday then his
maximum possible employment would have been only 10 days - not 11
- and that at 7.5 to 8.5 hours per day he could not have worked a
total of 96 hours, as claimed. The appellant stated the
interviewer had improperly recorded his answer about not working
on one of the two weekends during the period of his employment.
The appellant stated he had recorded his hours each day on his
own calendar - at home - but had discarded it since. Counsel
referred the appellant to his recorded answer at tab 89, Q. 20,
that he "had no time sheet" and that "Shindo used to write the
hours". The appellant stated he had not recorded the hours -
personally - but his wife had performed that task and the reason
that 1997 calendar was not available to be produced to the
interviewer in June, 1997, was due to the fact it had been badly
ripped and - therefore - discarded. However, during
the interview - tab 91 - the appellant handed Fontaine a list -
allegedly in Bant's handwriting - of the days and hours he had
worked. He identified the sheet - tab 90, p. 3 - as the one on
which his days - and hours - had been recorded between
December 29, 1996 and January 11, 1997, including
7 ½ hours on December 30 and 8 ½ hours on
December 31, respectively. The appellant agreed he had not given
HRDC a photocopy of the $580 cheque
- Exhibit R-8, tab 4 - to Fontaine during the
interviews but had produced it pursuant to an undertaking
following Discovery. Counsel asked the appellant to explain how
he could find that cheque 4 and one-half years later but not in
June, 1997. Inderjit Singh Atwal replied that he had two large
suitcases full of all sorts of papers and it took a long time to
locate it. When referring to a "receipt" during an interview, he
explained he was talking about the Statement of Earnings
(Exhibit R-8, tab 4). Concerning his attempts to
negotiate the $580 cheque at the TD bank, he recalled the teller
"punching keys" and then advising him there was not enough money
in the SRC account. Later, when Shindo gave him $580 in cash - in
return for the cheque - he spent the money without depositing any
of it into his regular bank account. He did not sign any receipt
for Shindo and acknowledged he had no way to prove he actually
received that amount. During the interview
- tab 89, Q. 25 - he apparently told Fontaine
that the entire amount of the cheque was deposited to his Canada
Trust account and provided the number to identify said account.
The appellant confirmed that answer was wrong and explained he
had intended to deposit the cheque into that account but when he
noticed it was drawn on the SRC account at the TD bank,
considered it would be better to cash it there.
[72] In re-examination by his agent -
Darshen Narang - the appellant - Inderjit Singh
Grewal - stated Bant - once - helped him move a full sheet of
drywall over to the side on a wall inside a house in order to
make space for cleanup. Some sheets were broken and pieces were
picked up and placed into containers together with other
construction debris.
SHARINDER SINGH BAGRI
[73] Sharinder Singh Bagri testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2363(EI) - is
Exhibit R-10. The Minister decided the appellant was employed in
insurable employment with SRC from May 5 to November 2, 1996 and
had insurable earnings of $2,000 during that period. The
appellant agrees the Minister's finding with regard to the period
of employment is correct but claims his insurable earnings were
in the sum of $7,840 as stated on his ROE at tab 88. The Minister
relied on the following assumptions of fact as set forth in
paragraphs 4(j) to 4(n), inclusive, of the Reply to the
Appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant was paid $2,000.00 by cheque dated September 7, 1996
and negotiated on October 7, 1996;
l) the
Appellant was not paid any other remuneration by the Payer other
than the $2,000.00 admitted herein;
m) the Payer did not
withhold any amounts on account of payroll deductions or taxes
from the $2,000.00 paid to the Appellant;
n) the records
provided, for example, the ROE, the T4 slip and the non
negotiated cheque, were fabricated to give the appearance that
the Payer gave the Appellant wages in excess of the $2,000.00
admitted, and these records were a sham.
[74] The appellant testified he was born in
1954 - in India - and immigrated to Canada in February, 1980. In
India, he attended school for 4 or 5 years but cannot read nor
write Punjabi. During 1985 - in Vancouver - he attended ESL
classes for 6 months. He cannot read nor write English but can
speak enough for purposes of his current employment as a janitor.
In Canada, he worked - as a cleaner - at the Pearson
International Airport in Toronto and moved to Vancouver in 1984
where he found employment over the next few years in a restaurant
and at a fish company. Although he had no experience as a farm
worker, he started working for SRC on May 5, 1996. On his first
day, he worked with potatoes at a farm on #3 Road. This was
the same location where he picked turnips on his last day of work
on November 2, 1996. At the outset, the appellant thought his pay
was $8 per hour but was unsure whether his wages were calculated
on that basis, although he was satisfied he had been paid in full
at the end of the season. He recalled receiving payments on four
occasions during 1996, as follows: $1,000 in cash during the
6th month (June), $4,000 in cash during the 9th month
(September), a cheque in the sum of $2,000 in October and a final
sum of $1,750 in cash in the 11th month (November). The
appellant stated each payment - whether cash or cheque - was
handed to him by Shindo. He stated the first payment - $1,000 -
was received in June at Shindo's residence. Shindo wrote
something in a large book and he signed it. The next payment of
$4,000 - in September - was received at Shindo's house and he
recalled her children were present. Again, he signed in the same
book after receiving his money. The SRC $2,000 cheque - tab 91 -
dated Sep 7 (September) 1996 - was signed by Rana and negotiated
at the TD bank at 49th and Fraser. About one week after his
November 2, 1996 layoff, the appellant received the final payment
of $1,750 - cash - at Shindo's house together with his ROE. The
appellant stated that in all his other jobs - before and since -
he had been paid every two weeks by cheque and he considered the
SRC method of paying wages to be unusual. He started work on May
5 but after two weeks had not received any pay. He asked Shindo
about it and was told money would be paid if needed but SRC had
to wait to pay wages to employees until the company had been paid
by those farmers to whom it had supplied labour. The appellant
regarded this business practice as "strange" but accepted
Shindo's explanation - reluctantly - because he could not do
anything about it. Shindo was his driver nearly all the time and
at the end of each working day would announce the number of hours
worked. Although since discarded, the appellant stated he
recorded his hours - in a small book - at home. He worked 8 hours
per day, 7 days per week and even if the actual working time on a
given day was more than 8 hours - or less - the difference was
only about one hour so work time was still recorded as 8
hours. Although he cannot recall what he did with the first
$1,000 in cash received from Shindo, the appellant stated he had
to pay rent and buy groceries. With respect to the $4,000 cash
payment received in September, the appellant paid an intermediary
that sum in order that it could be changed into rupees and
delivered to his father - in India - who was very ill. The
appellant stated he called a telephone number and an employee of
the exchange arrived at his house and took the $4,000. The
appellant provided the name of his father and the location of his
residence in a village in India so the appropriate amount of
rupees could be delivered in order to conclude the transaction.
He had used the services of the intermediary on other occasions
and when the rupees arrived at the village in India, his father
would telephone to confirm the delivery. Although there were fees
for changing the money and carrying out the delivery, the
appellant could not recall the amount. He used the last payment
of $1,750 to buy furniture. The appellant did not deposit any
cash - from the three payments - into a bank account.
He endorsed the September 7, 1996 cheque - tab 91 - but did not
sign "S. Bagri" on the signature line of the "I Cash Money Give"
purported cheque at tab 90 - in the sum of $4,000 - with the
appellant's name as payee. The appellant recalled attending at
the HRDC office in Burnaby on November 7, 1997 for the purpose of
answering certain questions. Following layoff, he applied - tab
96 - for UI benefits and his landlord
- Gurbaksh Kaur Sandhu - helped him complete the
form he had picked up at the HRDC office and taken home. He
instructed her to write a note - on the application - that
he had received WCB benefits due to an injury but could not
recall the dates. He was accompanied to the interview - tab 92 -
by the same person and she assisted in interpreting the questions
into Punjabi. Another Punjabi interpreter - employed
by HRDC - was also present. Even though Mrs. Sandhu was present
- beside him - when asked - Q. 2 - who had assisted
him to complete his UI application, his answer - as recorded
by the interviewer - was that he could not recall. After
receiving a letter from HRDC requesting him to attend an
interview, he discussed this matter with Shindo who advised him
not to mention her name. The appellant stated he had never been
aware that SRC was Rana's company and - like his
co-workers - thought it was owned by Bant and Shindo. He recalled
he had seen Rana at the Chinese Farm in Richmond and understood
he could not drive a vehicle because he had lost his driving
privileges. He saw Rana every day for more than two months while
they both worked on a farm that grew zucchini and other
vegetables. The appellant stated he could not recall a telephone
conversation with Janet Mah nor any of the circumstances as noted
by her at tab 82. He identified his signature on the
Questionnaire - tab 85, dated April 5, 1999 - but is unable to
remember details concerning its content or the manner by which it
was completed. He stated that he rode to work in a van for the
majority of the time and was transported to work in a school bus
only when picking berries. The appellant stated he worked every
day and did not pay any money to Shindo or anyone at SRC to
receive his "weeks paper" (ROE) and that he had received payment
for his work, as described in his testimony.
[75] The appellant - Sharinder Singh Bagri -
was cross-examined by Selena Sit. He confirmed that his layoff
from past employment had never created any problem when applying
for - and receiving - appropriate UI benefits and he understood
his work for SRC was raising questions at HRDC. During his
previous employment in Canada, all other employers had paid him
every two weeks. His wife - who had completed Grade 10 in India -
arrived in Canada in 1987 and worked as a seamstress. Counsel
showed the appellant the pay statement - tab 89 - purporting to
show he had gross earnings in the sum of $10,192 and net earnings
of $8,788. The appellant stated he had not seen that document
before and when he obtained the sum of $1,000 from Shindo - in
June - was not aware how much he had earned to that point. He
agreed he had not made his own record of when he received the
cash payments. He stated he requested money from Shindo on many
occasions and had specifically asked to be paid the sum of
$4,000. As for the purported cheque - tab 90 - he
stated he had not seen it until produced in Court during his
testimony. Counsel read out an answer the appellant had given at
his Discovery on November 9, 2001 to Q. 270. At that time,
he said Shindo made him sign on a cheque - in the sum of $4,000 -
in September or October before paying him that sum in cash
because his father was ill and he needed to send money to India.
At that time, he identified his signature at the bottom of the "I
Cash Money Give" purported cheque - tab 90 - where the payer
would normally sign and went on to explain that Shindo had given
him the sum of $4,000. The appellant stated he did not recall
giving those answers - at Discovery - but agreed he must have
done so. In 1996, he operated a joint account - with his wife -
at the Royal Bank and Fraser and 49th Avenue in Vancouver (A copy
of transactions on that account is at Exhibit R-8, tab 5).
Regarding the transfer of money to his father in India, the
appellant had telephoned the number on a business card of an
enterprise he thought was called Indian Exchange that operated in
Toronto, Montréal and Vancouver. He had sent money through
that company earlier and the exchange agent always attended at
his house to pick up the money and obtain instructions regarding
delivery of the rupees in India to the designated recipient
and/or an alternative person. No receipt was issued by the agent
but the appellant stated the system has changed and one can send
money to India by depositing funds to a special account and
having the Canadian funds changed to rupees for transfer to
India. Sharinder Singh Bagri agreed he had no documents to
support receipt of cash from Shindo - as alleged - nor did he
have any paper to prove he had sent money to his father in India.
He stated that when he sent money to India, he would receive a
phone call from the recipient within one or two weeks to advise
the funds had been received. Notwithstanding that during his
other employment he had always received pay on a regular basis
together with a proper pay stub setting out the various
deductions, he accepted what he was told by co-workers that the
farming industry was different and would only receive his full
pay at the end of the season. The appellant stated his wife had
calculated he had earned $8,788 but had only received a total of
$8,750. He could not explain how his wife had arrived at that
conclusion if she had never seen the pay statement at tab 89. At
Discovery, the appellant explained he had mentioned the $28
deficiency to Shindo but no further payment was received from
her. While answering Q. 18 at the HRDC interview - tab 92 - the
appellant's answer indicates he received "around $9,000 total -
cheque/cash, mostly asked for cash". He recalled being driven to
work by Shindo and that he had never used his own vehicle.
Counsel pointed out that during the HRDC interview - at Q. 9
- he apparently told the interviewer that he used his own Toyota
Corolla "once or twice" to go to work. The appellant agreed he
owned that car during 1996 but stated he had not used it to
travel to work. As for working in the rain, he recalled it was
usual to continue working unless instructed by the farm owner -
or Shindo - to stop and go inside a shed. When picking berries,
the appellant used picking cards and would receive a new one -
each morning - with his name written on it. A truck - with a
scale - was situated in the field and a person would receive the
flat of berries and punch his card. The flats weighed
18 pounds and if the weight was less, it was not counted as
a complete flat until extra berries had been brought in later to
make up the deficiency. Different farms used different colours
for their picking cards but the colours did not have any linkage
with the type of berries being picked. The cards had 3 copies and
one was retained by the farmer, one by the driver and the
appellant retained one copy which he took home. He threw away the
cards later and did not turn them in to Shindo at the end of the
season because his pay was based on an hourly rate. When
answering Q. 5 of the interview - tab 92 - he stated he had been
provided with Rana's telephone number when looking for work. He
admitted that answer was not correct but because Shindo had
informed him it was Rana - not her - who was really his employer
during 1996, he thought he should tell HRDC that Rana had hired
him instead of Shindo.
[76] In re-examination by his agent -
Darshen Narang - the appellant - Sharinder Singh
Bagri - reiterated he had not repaid any of his wages to Bant
and/or Shindo and/or Rana. Further, except for the small sum of
$28, he accepted he had been paid the wages due to him for his
work during the 1996 season.
HARBANS KAUR PUREWAL
[77] Harbans Kaur Purewal testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2360(EI) - is
Exhibit R-27. The Minister decided the appellant was employed in
insurable employment with SRC for 7 weeks during the period from
July 14 to August 24, 1996 and had insurable earnings in the sum
of $2,744. The appellant's position is that she was employed from
July 14 to December 7, 1996 and had insurable earnings in the sum
of $8,152 as stated in her ROE at tab 96. The Minister relied on
the following assumptions of fact as set forth in paragraphs 4(j)
to 4(q) of the Reply to the Appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Peirod as a farm
labourer;
k) the
Appellant did not provide any services for the Payer beyond
August 24, 1996;
l) the
Appellant was paid $2,744.00 by the Payer for farm labour duties
during the Period;
m) the Appellant did
not receive any other remuneration from the Payer other than the
$2,744.00 admitted herein;
n) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip, the pay cheques and
the Employee Earnings Record were fabricated to give the
appearance that the Appellant provided services for the Payer
beyond August 24, 1996 and was paid in excess of $2,744.00
admitted, and these records were a sham;
p) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
q) the
Appellant did not work for the weeks reflected in the ROE.
[78] The appellant stated she had not
received any education in India nor in Canada following her
arrival in 1992. She did not attend any ESL instruction and her
first job in Canada was working for a labour contractor supplying
workers to Purewal Farms. Because of eye surgery, she did not
work for the next two years until the summer of 1996 when she was
employed by SRC. She stated her hourly wage was $7 and understood
a pay cheque would be issued every two weeks. However, it was
necessary to request money from Shindo who handed her
two cheques in the sums of $500 and $6,000, respectively,
followed by a cash payment of $525 at the end of the season. The
appellant stated she met Shindo at the Temple and agreed to work
for SRC at $7 per hour for all sorts of work. A few days later
she started picking raspberries at the Gill Farms but did not
know in which municipality it was located within the Lower
Mainland. After two weeks at that farm, she picked raspberries at
other places and ended up the berry season by picking blueberries
for about 8 weeks. Then, the appellant began working on two
vegetable farms in Richmond that grew radishes, turnips, peppers,
cucumbers, zucchini and cabbages which was the last crop picked.
She recalled that Manjit Rana had driven her to work - in a
maroon van - on her first day. Later, Shindo drove her 4 times
and Bant was her driver 3 or 4 times but Bahjan (Harbhajan)
Kang was her usual driver during the middle of the season. Kang
drove a white van and the other drivers used the maroon van.
Although she never rode to work in the yellow bus, she knew SRC
used a school bus to take people to work in the fields. While
picking berries, she used picking cards which were punched by
Bant and/or Shindo or - sometimes - the farm owner, when flats
were handed in to be weighed. At the end of the day, the picking
card was handed back to Bant and/or Shindo and she did not keep a
copy for herself. She recalled using a punch card even when
picking different types of vegetables. Each day of work was
recorded as 8 hours even though it was sometimes a bit more or
less. The appellant stated she took off only one day during her
period of employment. When picking raspberries, she placed the
berries into an "ice-cream pail" and then emptied that container
into a flat. It took 4 pails to fill the flat and if it was not
full at quitting time, it was handed in and weighed. The picking
cards were blue or yellow and had three separate sheets to each
card. Even though each work day consisted of 8 hours, the
appellant's children kept a record of her hours. The appellant
stated she had worked at a restaurant where she received her pay
every two weeks but when she worked for a labour contractor- in
1992 or 1993 - she was paid every two to four weeks but not
according to a precise schedule. She continued to work for SRC
because she was confident Bant and Shindo would pay her in full
by the end of the season. During this period, the appellant and
her husband - who was ill - lived with their sons and daughter
and grandchildren. Her son paid all living expenses. When she
received a total of $7,025 for her work, she assumed that amount
was correct and did not undertake her own calculation. She
received a T4 in that amount and used it to file her income tax
return for the 1996 taxation year. The appellant recalled
receiving her ROE - tab 96 - from Shindo. She took it to the UI
office and - on December 12, 1996 - submitted an application -
tab 97 - for benefits which was completed by either her daughter
or daughter-in-law. Although the box - at Section F
of the form - is checked to indicate she had an elementary school
education, the appellant stated that was not correct. The
appellant's pay statement - tab 95 - indicates she worked 52.5
hours during her last week of employment ending December 14. At
Section B of the application form the nature of the appellant's
occupation is described as a Farm Worker and the type of work
performed as "berry picking". The appellant stated it was an
omission not to have mentioned picking vegetables at Richmond.
The appellant identified a copy of a cheque - tab 94 - dated
August 25, 1996, payable to herself in the sum of $500 which she
endorsed and negotiated at the TD bank at 49th and Fraser. The
cheque was signed by Rana and, even though she had an account at
that branch, did not deposit the cheque but obtained cash.
Another cheque - tab 93 - dated 9.10.1996 was issued by Rana but
not negotiated by the appellant until December 12, 1996. The
appellant could not recall when she received that cheque but
stated it seemed she had cashed it at the earliest opportunity
taking into account her work schedule. While cashing the $6,000
cheque, neither Bant nor Shindo were present at that TD branch
but she was accompanied by either her daughter or daughter-in-law
when walking out of the bank with that amount of cash. The
appellant recalled an interview - tab 90 - conducted at an HRDC
office in Richmond on February 6, 1998. She identified her
signature "H Kaur" at the foot of each page and recalled Charan
Dhillon was the HRDC Punjabi interpreter. The appellant's agent
referred her to the question "How many hours per day?" - part-way
on page 4 - and her answer that she worked "sometimes, 8, 9, 10
and there were times we worked 12 hours too". The appellant
stated that with travel time included during berry season the
days were that long but it took only 45 minutes to travel to work
at Richmond. She was unsure of her rate of pay, describing it as
"$7.00 or $8.00 per hour. I think it was $7.50, I think". At one
point - according to p. 6 of the notes taken by HRDC employee -
Jeannie Suric - the appellant's daughter - Perminder Kaur Sihota
- was brought into the room and remained until the interview was
finished. As noted by Jeannie Suric - at p. 7 - the appellant
stated she had begun work in July and worked continuously for 6
or 7 weeks. She was shown her ROE indicating she had worked
until December but Jeannie Suric assumed - at that time - the
appellant had actually been in India (HRDC later accepted that
was not the case since the appellant had travelled to India in
1995 and not 1996). At p. 7 of the notes taken by Suric, in
answering a series of questions based on each of the later months
of her alleged employment, the appellant - in sequence - stated
she had not worked in each of the months of September, 1996, nor
October, nor November, nor December, 1996. Earlier, the
appellant's answer is recorded that she worked "from July 14 to
the end of August, 1996" and that she had declared "I am aware of
the months of the year. I did not work in September, 1996". The
appellant stated there was confusion arising from HRDC believing
she had been away on holidays in India when that was not true.
Further, she was having difficulty understanding what was being
asked and denied providing answers to the effect she had not
worked during in September and thereafter until her layoff date
in December. The appellant was referred to a Statutory
Declaration - tab 91 - signed by her on February 6, 1998. She
identified her signature "H Kaur" and agreed her daughter had
been present and had written out - in English - the contents of
said declaration. In that solemn declaration, the appellant
stated, "I worked for Manjit Rana for a period of 7-8 weeks from
approximately July 7/96 to the end of August, 1996 and not for
the 21 weeks as indicated on my application for unemployment
insurance benefits and the record of employment". Later, she
states that "I did not work the months of September, October,
November and December. I am not able to speak or read English".
The declaration concludes: "The above statement was given at my
own free will, in the presence of my daughter, Perminder Sihota".
The appellant did not agree with the contents of that declaration
and stated her daughter had not translated those statements into
Punjabi nor did the "East Indian lady" present in the room offer
any translation. On February 13, 1998, the appellant attended
another interview - tab 88 - with Jeannie
Suric whose notes indicate the meeting had been requested by the
appellant because she "wanted to change her story". The appellant
was accompanied by Sonia Sandhu, a friend of her daughter. Mrs.
Dhillon acted as the Punjabi interpreter. At this interview, the
appellant advised Jeannie Suric she had worked from July 14 to
December 7, 1996. She based her recollection on a piece of paper
with those dates written on them that had been read out to her by
her husband. She told Jeannie Suric she was not changing her
story but wanted to bring in that piece of paper that she
believed was an accurate record of the dates she had worked at
SRC. Between the two interviews - a period of one week - the
appellant denied talking to either Bant or Shindo. In answering
the Questionnaire - tab 101 - at Qs. 15 and 16, she mentioned
"picking strawberries". The form was completed by her daughter -
Perminder Sihota - and the appellant agreed she must have
provided her with the answers since she had not worked for SRC.
The appellant explained that the answer was wrong because she had
picked raspberries during her first week of work. In answering Q.
32 concerning method and frequency of payment of wages, the
answer provided was "End of season". The appellant stated that
answer is wrong and her daughter must have misunderstood because
she had been paid two cheques and one amount in cash. The
Questionnaire - tab 85 - was completed by her daughter - Jasbir
Nijjer - and because this child - like the other daughter - was
born in England and had never been to India, she is not fluent in
Punjabi and cannot translate accurately from that language to
English and, as a result, mistakes were made in that form, such
as writing down that she was paid by cheque without any mention
of cash. Notes - tab 83 - prepared by Janet Mah
- Rulings Officer - of a June 29, 1999 conversation
with Harjit Kaur Purewal - daughter-in-law and
interpreter for the appellant - stated that on her first day of
work the appellant said she picked strawberries but could not
recall the task performed on her last day of employment with SRC.
The appellant denied providing those answers and speculated
"maybe I wasn't home".
[79] The appellant - Harbans Kaur Purewal -
was cross-examined by Selena Sit. The appellant was born in 1942
and even though she lived for 37 years in England and has been in
Canada 11 years, cannot speak, read or write English. In England,
she worked 23 years spinning thread in a woolen mill and
throughout her life there has not been any need for her to learn
English. She and her husband had three daughters and two
sons. Counsel informed the appellant that during an HRDC
interview, the date of December 7, 1996 was stated as her last
day of work because it had been written on her ROE. The appellant
replied that when the interviewer had threatened to call the
police, in response she had instructed her to "go ahead and write
whatever you want". Counsel pointed out to Harbans Kaur Purewal
that she had signed her name at the bottom of each page of the
interview - tab 90 - and that her daughter - Perminder Sihota -
had also signed as a witness. Further, counsel suggested each
page had been translated from written English to oral Punjabi
prior to signing. The appellant replied that she had merely
signed the successive pages of the interview notes because she
had been threatened by the interviewer - Jeannie Suric - and her
daughter signed as a witness but did not understand the Punjabi
translation and/or interpretation. The appellant stated she does
not know the English words for months of the year and would not
have told an interviewer that she had not worked in the months of
September, October and November. She agreed her daughter had
written the Statutory Declaration - tab 91 -
but did not recall the contents of that statement being
translated and then read aloud to her in Punjabi - as noted by
Jeannie Suric at tab 90, p. 8 - and that she had not been aware -
earlier - of the nature of that document until she listened to
the interpretation provided - in Court - by Russell Gill. The
appellant brought a piece of paper - tab 89 - to the HRDC upon
which the alleged start and finish day of her employment with SRC
were noted as 14-07-96 and 07-12-96, respectively. She stated
those dates had been written on that paper by her husband who
informed her "these are the dates that you worked". She added
that - in her view - this paper should be able to prove the dates
of her employment. The appellant stated she was driven to and
from work - by Shindo - in November and December even though
counsel informed her that the ROE issued by SRC with respect to
Shindo stated her last day of work was October 26, 1996. Even
when there was snow on the ground, the appellant stated she still
worked cutting cabbages from the ground by using a knife to sever
the head just above the root. Counsel advised the appellant that
the Minister relied on weather records that there had been
extensive snowfall on the Lower Mainland in late November and
early December, 1996 and that the agricultural expert's opinion
was that the cabbage harvest had been finished by mid-November.
The appellant replied that she had worked until December 7. The
appellant's daughter - Perminder Sihota - wrote the answers in
the Questionnaire - tab 101 - including those to Qs.
36, 37, 40, 41 concerning whether picking cards had been used by
the appellant in the course of her employment. Each time, the
answer was clearly expressed in the negative. In response to Q.
23 whether she had worked Sundays, the response was "Mostly yes,
but there were times when Sunday was a day off". As to missing
work due to bad weather - Q. 26 - the answer was "Yes." The
appellant explained she had instructed her daughter to state
picking cards had not been used to record her hours of work or
the volume of her work because she was paid by the hour and not
by piecework. The correct answer was that she had - indeed -
worked every Sunday and even continued to work during bad weather
because she wore raingear. In her opinion, the confusion arose in
several answers because her daughter had not worked for SRC nor
did she live with the appellant and - as a result - was unaware
of the working conditions and the purpose of picking cards. When
she and her daughter-in-law - Daljit - were at Shindo's house
picking up the ROE, Shindo had offered Daljit some advice
concerning the process of applying for UI benefits. With regard
to the cheque - tab 94 - for $500 received from
Shindo and cashed at the TD bank on August 28, 1996, the
appellant stated she had not returned any portion of that money
to anyone at SRC nor did she repay any portion of the $6,000
cheque - tab 93 - to any principal of the employer but gave money
to her children with whom she and her husband resided. The final
payment - $525 in cash - was received two or three days
after obtaining the ROE and the appellant stated she had a clear
recollection of that event even after more than 7 years. Counsel
referred her to a note made by Jeannie Suric - at tab 90, p. 4 -
that the appellant stated she received "one big cheque and cash
on two times. I received a total of $8,000". The appellant denied
making that statement. On the following page, Suric recorded the
appellant's answer to a question about whether she had worked in
December. The response noted is "I don't know. All I know I
received a little bit of money - $500.00, then
$1,000.00 or $2,000 cheque". In response to Q. 33 of the
Questionnaire - tab 101 - concerning the method of payment -
whether by cheque or cash - the answer is "cheque" and there is
no mention of any cash in the Questionnaire - tab 85 - where the
method of payment is described as by "cheque".
[80] The appellant's agent did not
re-examine the appellant.
PARMJIT KAUR REHAL
[81] Parmjit Kaur Rehal testified in Punjabi
and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2365(EI) - is
Exhibit R-28. The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks from June 22 to
October 19, 1996 and had insurable earnings in the sum of $6,200.
The appellant's position is that she was employed from June 22 to
December 7, 1996 and had insurable earnings in the sum of $7,945
in accordance with the amount shown on her ROE at tab 89.
The Minister relied on the following assumptions of fact as set
forth in paragraphs 4(j) to 4(s), inclusive, of the Reply to the
appellant's Notice of Appeal:
j) the
Appellant landed in Canada on June 19, 1996;
k) the
Appellant worked for the Payer during the Period as a farm
labourer;
l) the
Appellant did not provide any services for the Payer beyond
October 19, 1996;
m) the Appellant
negotiated a cheque dated July 10, 1996 for $1,000.00 on October
21, 1996, a cheque dated August 8, 1996 for $1,200.00 on October
26, 1996, a cheque dated September 10, 1996 for $2,000.00 on
November 15, 1996 and a cheque dated November 12, 1996 for
$2,000.00 on November 27, 1996;
n) the
Appellant did not receive any other remuneration from the Payer
other than the $6,200.00 admitted herein;
o) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
p) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer beyond October 19,
1996 and was paid in excess of $6,200.00 admitted, and these
records were a sham;
q) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
r) the
Appellant did not work for the weeks reflected in the ROE;
s) the
Appellant applied for maternity benefits under the EI Act
with the due date of her child shown as January 20, 1997.
[82] The appellant was married - in India -
on April 8, 1994 and she and her son came to Canada under the
sponsorship of her husband. In India, she had studied for her
Bachelor of Arts degree offered by the Punjab Education Board but
transferred to a program of technical studies and later taught -
in Punjabi - courses in cutting and tailoring for more than two
years. Her own education had been in Punjabi. In Canada, she did
not study English nor participate in ESL classes. Three days
after landing in Canada, the appellant started working for SRC
because her husband had visited the Sikh Temple in order to
arrange her employment. During the relevant period, the appellant
and her husband and son lived in a suite - in Surrey - and the
appellant's husband was not employed outside the home. He was
studying to qualify as a life insurance agent and passed the
examination in October or November, 1996. However, that venture
did not prove to be a success and he currently drives a taxi. In
India, the appellant performed housework, cared for some animals
on rented land and cut fodder. After her marriage - in 1994 - she
no longer worked outside the home. The appellant recalled she
went to work - the first day - in a van driven by Harbhajan Kang.
Later, she was driven by Shindo and by Harjit Gill who drove a
yellow bus. She picked strawberries that first day at
Khakh Farms and continued for about 3 weeks before picking
raspberries at Gill Farms and other farms in the Abbotsford
area for 3 more weeks. That crop was followed by blueberries and
when berry season was finished, the appellant stated she worked
at two vegetable farms in Richmond known to her as the
Chinese Farm and Mike's Farm. The produce grown on those
farms included cabbages, turnips, radishes, zucchini and peppers.
Throughout her employment, she was paid $7 per hour and did not
use picking cards at any time. Both Rana and Shindo were her
supervisors and Bant was present sometimes. Shindo explained the
nature of the work to be performed and demonstrated how to pick
strawberries. Although Shindo informed her she would be paid
every two weeks, this did not occur and she had to ask Shindo for
some wages as time went by. Often, Shindo would offer excuses and
complain about the cash flow problems encountered by SRC.
Usually, it would take 7 to 10 days following a request for money
before Shindo would fulfil that demand. The appellant stated she
was paid total wages of $7,900. She received 4 cheques in
the sums of $1,200, $2,000, $2,000 and $1,000, respectively, and
a total of $1,700 in three cash payments of $500, $1,000 and
$200. While picking berries, the appellant stated she did not use
a picking card and did not see other workers using those cards.
When she filled a flat, it was taken away by men and she did not
have to take it to any weighing area. Shindo was present in the
fields during picking. About 3 or 4 weeks after starting work,
the appellant received her first payment of $500, only after
informing Shindo that her family needed funds. The appellant
stated she worked until December 7, 1996, 33 days prior to
the birth of her baby. During her pregnancy, she was healthy and
worked 7 or 8 hours per day - outside - even when required to
bend over to pick the cabbages. When weather was wet, she wore
raingear and continued working. Although she cannot recall -
specifically - the tasks performed during her last week of work,
they were in relation to certain vegetables at one or other of
the two farms in Richmond. Following the 1996 season, the
appellant worked for other farm labour contractors and was paid
on a regular basis. Since 1999, she operates her own tailoring
business from her own home. On December 7 - at Richmond - Shindo
handed the appellant her ROE - tab 89 - dated December 9, 1996
but did not mention the number of weeks required to qualify for
UI benefits. The appellant stated she had not realized the
discrepancy in the dates and noted a mistake had been made in
writing her SIN number - initially - on the ROE and assumes
someone corrected it later. The appellant stated her first name
is spelled Paramjit on her Social Insurance (SI) card and on her
Indian Passport - tab 102 - but she uses the spelling "Parmjit"
for everyday purposes. The application - tab 90 - for UI
maternity benefits was filled out at the HRDC office and the
appellant's husband completed the form. At Box 16 on said form,
the location of work - Richmond - is crossed out and the nature
of the work performed is described as "canary (cannery), farm
worker (cleaning & packing vegetables)". New West
(New Westminster) is named as a work location but the
appellant noted that was not correct. After her husband completed
the application form, she signed it and began receiving benefits
which continued until she began working - as a farm labourer - in
June, 1997. Because she had already started work, she returned
two UI cheques to HRDC and following her layoff in December,
1997, applied for benefits and was paid her claim on a regular
basis without question. Since that time, she has not been
eligible for UI benefits because she is self-employed.
During the HRDC interview - tab 101 - on July 10, 1997 her
husband - Jaspal Singh Rehal - acted as
interpreter. The appellant stated she was aware of the general
nature of the investigation concerning SRC and that the interview
was related to that inquiry. A copy of transactions on two
accounts - tab 92 - one for an account in her own name and
another operated jointly with her husband at Khalsa Credit Union
in Clearbook, B.C. indicates all 4 cheques received from SRC were
deposited. The cheque - tab 93 - in the sum of $2,000 - dated
11.12.1996 - was deposited on November 27, 1996 to their joint
account. Another cheque - tab 94 - dated 9.10.1996, was deposited
to the joint account on November 15, 1996. The cheque -
tab 95 - in the sum of $1,000 - although dated July 10, 1996
- was not deposited to her own account until October 21, 1996
because Shindo told her not to attempt to negotiate the cheque
until instructed because SRC was short of funds. The cheque - tab
96 - in the sum of $1,200 was dated 8.8.1996 but was not
deposited until October 26, 1996. The appellant could not recall
when said cheque was received but held it until Shindo
- either in the van or in the field - informed her she
could deposit it. The appellant stated she had some concerns
about continuing to work while being owed back wages. Since her
SRC employment was the only source of family income, her landlord
was willing to wait - on occasion - for the rent. The appellant
stated she can recall receiving the first cash payment
- $500 - during the first week of July and the last
$200 payment at Richmond - together with her ROE - but
cannot remember the timing of the second payment of $1,000. The
appellant's hours of work were recorded in a notebook which was
discarded once she had received her final payment of wages. She
responded to the Questionnaire - tab 103 - dated October 15, 1998
with her husband - Jasbal Singh Rehal -
writing down her answers and returned it to CPP/EI Appeals office
in Vancouver. At Q. 2, she stated she found out about the SRC job
"from friends and neighbours". She named Rana as her supervisor
when answering Q. 30 and stated he had paid her (Q. 35). The
appellant stated she knew Rana and Shindo were brother and sister
who lived in the same house and that Rana signed the SRC cheques
even though they were handed to her by Shindo. The appellant
stated she wished to make it clear that she did not return any
money to Bant or Shindo or Rana in connection with her SRC
employment and that she was satisfied - eventually -
that she had been paid all the wages due for her hard work during
the season.
[83] The appellant - Parmjit Kaur Rehal -
was cross-examined by Johanna Russell. The appellant stated
her husband was born in India but came to Canada in 1993. He had
a Bachelor of Science degree and completed 3 years of civil
engineering in India. The language of instruction was in English
and Punjabi. The life insurance agent examination he was required
to complete was written in English. The appellant stated that all
the clients of her tailoring business are Indo-Canadians
and she does not speak English in the course of dealing with
them. She does not have to read patterns but relies on her own
experience. She is the holder of a B.C. Driver's Licence and was
able to take the examination in Punjabi. She recalled picking
vegetables at the Min Ho Farms in Richmond including the long,
white radish (lo bok or daikon) as well as green bell peppers,
hot peppers and zucchini. Counsel informed the appellant the
Minister was relying on final harvest dates for various crops -
as provided by an agricultural expert - and that turnips and
daikon were harvested by November 1 and November 15,
respectively. The appellant replied that - in 1996 - she was new
to Canada and was not aware of harvest dates for different crops
but had worked until December 7. She recalled there was no snow
on the ground during her last day of work. Counsel advised the
appellant that the owner of that vegetable farm had supplied
documents to the Minister indicating that by November 24 the
harvest was concluded, the ground was frozen and the last sale of
produce had taken place. The appellant replied she also worked at
Mike's Farm in Richmond during the latter part of the season.
Counsel advised the appellant there had been numerous instances
during the course of the testimony and interviews of other SRC
workers where they had confirmed the use of picking cards for
various berry crops. The appellant stated she had not observed
co-workers receiving cards from a van or bus driver nor did she
see them hand back anything to that driver at the end of the day.
She did not understand any need to use those cards if her pay was
based on $7 per hour. Because of that fixed rate, she did not
count the number of flats picked per day and did not share a flat
with anyone. When a flat was full, she found an empty flat and
continued to pick while someone removed the full container and
took it to a truck. She denied observing any procedure during
which flats were weighed and/or counted. In relation to the
drivers employed by SRC, the appellant stated Harjit Gill was the
only person who drove the yellow school bus but recalled that
Harbhajan Singh Kang and Shindo drove different vans
from time to time. Counsel referred the appellant to the notes -
tab 84 - made by Janet Mah concerning a telephone conversation -
on July 6, 1999 - between herself and Jasbal Singh Rehal who had
advised he had permission to interpret for the appellant. During
that telephone interview, Harbhajan Kang and Harjit Gill are the
only drivers named by the appellant. Counsel advised the
appellant that Harjit Gill had been laid off on October 6 and
went to India on October 11, 1996 and that Harbhajan Kang had
been laid off on October 19, 1996. The appellant replied that
Kang had continued to drive her to work until the end of her
employment. Counsel advised her that Kang left Canada - on
October 24 - for an extended holiday in India. During the HRDC
interview - tab 101 - with Ted Bowerman on July 10, 1997, the
appellant - at p. 4 - told Bowerman that Kang and Gill
had driven her to work at the vegetable farms in Richmond but had
not mentioned Shindo. Counsel suggests the appellant had come to
realize that Kang and Gill were unavailable after October 11 and
October 19, 1996, respectively and could not have driven her to
work during the balance of October, or thereafter until her
layoff on December 7. The appellant agreed Shindo must have been
her driver during the latter part of her employment. Counsel
informed the appellant that Shindo's ROE showed her last day of
employment with SRC was on October 26. At the interview - tab 101
- the appellant - at p. 5 - denied taking any time off for any
reason including sickness. During Discovery, the appellant stated
she "occasionally took off a Sunday" and also another day off
other than a Sunday from time to time. In order to do that, she
would either ask Shindo for a day off or merely inform the van
driver in the morning that she would not be going to work. The
appellant agreed there was a contradiction in her previous
answers and stated the version provided during Discovery was
correct. With respect to the 3 cash payments - totalling $1,700 -
received from Shindo, the appellant agreed she had no proof that
money had been received other than her own statements made under
solemn affirmation. However, each time cash was received, she
signed on a page in a book handed to her by Shindo and noticed
her own name was written on that certain page. The appellant
stated she recorded the cash payments on the same paper used to
record her hours of work but it was discarded once her wages were
paid in full. At the interview - tab 101, p. 4 - the
appellant told Bowerman that Rana had paid her a $500 cash
payment "after 1 month, 2 months" and at Discovery (Q. 280)
stated she was paid "after a month or so, after pleading for it"
and that Rana had handed her the money which she used to pay
rent. The appellant stated she recalled providing those answers
but stated Shindo had been the person who gave her the $500
initial payment of wages. The appellant's pay statement - tab 97
- shows gross earnings of $9,177 and net earnings in the sum of
$7,918. The appellant stated she had not seen that document nor
the binder - Exhibit R-28 - pertaining to her appeal prior to
testifying in Court. She stated she is aware HRDC takes the
position she was overpaid benefits and is seeking reimbursement
of a certain amount she cannot recall. The CCRA printout - tab
105 - of the appellant's 1996 income tax return states her
earnings were $9,177. Counsel suggested to the appellant that in
order to earn this amount - at $7 per hour - she would have had
to work 8 hours per day for 163 days, for a total of 1,311
hours. The appellant replied that she had worked a sufficient
period - 168 days - to accumulate that amount of hours.
[84] The appellant - Parmjit Kaur Rehal -
was re-examined by her agent, Darshen Narang. She stated that her
answer to counsel - 10 minutes earlier - was incorrect and that
she recalled her husband had a book of documents - prior to her
Discovery - relevant to her appeal and had translated and/or
interpreted the contents thereof to her. With respect to the HRDC
interview - tab 101 - on July 10, 1997, she stated she had
been requested to produce her passport and photo identification
and was aware there was some issues concerning her employment
with SRC. She stated she was not prepared to provide some
specific details and answered to the best of her ability through
her husband who interpreted proceedings from English to Punjabi
and Punjabi to English. Narang pointed out that - at p. 1 - her
husband had answered directly and in English a question posed by
Bowerman concerning the manner by which she had found employment
with SRC. The appellant replied that she did not know if her
husband had responded on her behalf - in English - to other
questions. Concerning the identity of the payer for the first
cash payment of $500 received in the field, she stated it could
have been Rana but had not paid much attention to that small
detail because she knew Rana and Shindo were brother and sister -
living in the same household - and was glad just to receive some
overdue pay. The appellant stated she had expressed concern to
her husband at one point but he advised her to keep on working
because the family needed the money and - sooner or later - she
would be paid. In India, she was paid once per month and expected
some kind of regular payment of wages but that was not the case
at SRC. However, once the first $500 cash payment was received,
she felt more confident about working for SRC. The appellant
reiterated that Shindo had driven her to work during the last
part of her employment ending December 7, 1996 and that another
driver named Harjit - not Harjit Gill - also drove her to work
during that period.
GURCHARAN KAUR JOHAL
[85] Gurcharan Kaur Johal testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2329(EI) - is
Exhibit R-20. The Minister decided the appellant was employed in
insurable employment for 17 weeks during the period from
June 21 to October 12, 1996 and had insurable earnings in the sum
of $5,000. The appellant's position is that she worked from May
26 to October 12, 1996 and had insurable earnings of $7,784 as
stated in her ROE at tab 90. The Minister relied on the following
assumptions of fact as set forth in paragraphs 5(j) to 5(q) of
the Reply to the appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services to the Payer before
June 21, 1996;
l) the
Appellant was paid $5,000.00, by way of cheque dated
October 12, 1996 and negotiated on October 28, 1996 for her
work during the Period;
m) the Appellant did
not receive any other remuneration from the Payer other than the
$5,000.00 admitted herein;
n) the Payer
did not withhold any amount on account of payroll deductions or
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer before June 21, 1996
and was paid in excess of $5,000.00 admitted, and these records
were a sham;
p) the
Appellant required the 20 weeks of insurable employment reflected
on the ROE in order to qualify for unemployment/employment
insurance benefits;
q) the
Appellant did not work for the 20 weeks reflected in the ROE.
[86] The appellant stated she was born - in
India - in August, 1948 and arrived in Canada in August, 1993.
She attended school for 7 years but did not pursue further
education in Canada nor did she attend ESL classes. In India, she
and her husband farmed 35 acres of land which they still own. She
did inside work and he looked after the farm work. After moving
to Canada, the appellant, her husband, and their daughter and son
lived in Surrey. In 1994, she worked 7 or 8 months at a mushroom
farm but did not work the following year. In 1996, she worked
with Shindo but did not work in 1997. Later, she worked for
another farm labour contractor but is unsure of the year.
Currently, she cares for her grandson in the family home. After
her layoff - in 1994 - from the mushroom farm, she applied for -
and received - UI benefits. Her husband - Karmjit Singh Johal -
also worked for SRC in 1996 and was a co-appellant in the within
appeals (His appeal was dismissed - later - for want of
prosecution). The appellant stated she was sitting in a park in
Surrey during May and people were discussing the availability of
work. She spoke to someone who was working for SRC and discovered
her neighbours also worked for that company. Her husband spoke to
Bant and/or Shindo about work and, although she started at SRC
about two or three days later, he did not work for SRC until
June. They were both laid off on October 12, 1996. While working
together, the appellant and her husband usually travelled to work
in the same vehicle but - later - were sent to different fields
on occasion. She recalled her pay was based on an hourly rate but
could not remember the exact amount. Her husband had informed her
that she would be paid every 15 days. During the first few weeks,
she worked at the Chinese Farm in Richmond, preparing the land
and planting seeds for one or two days. Following completion of
those tasks, she was taken to the Khakh Farms in Abbotsford where
she picked strawberries for 3 or 4 weeks. Then, she picked
raspberries - for 4 or 5 weeks - at the Lidder Farm and other
farms in the same general area. After that, she picked
blueberries at various farms, some larger than others in
Abbotsford and Richmond and ended the berry season by doing
clean-up work which involved re-picking berries left on the bush
during the first harvest. The remaining smaller berries were
picked over the course of 3 or 4 weeks - on a rotating basis - at
several farms. She did not use a picking card and, although she
saw them during subsequent employment, did not see them during
her work with SRC. When picking strawberries, she placed the
berries into a bucket which was emptied into a flat which - when
full - was handed to the farm owner or - at some farms - taken to
a truck towing a trailer. The farm owners would weigh the berries
and appeared to have a method of recording the flats and the
weight. She recalled it took 3.5 buckets to fill a flat of
raspberries and 3 buckets to fill a strawberry flat. The
appellant stated her first day of work was May 26 and rode to
work in a grey van driven by either Bant or Shindo and for about
another week. Then, she began riding to work with about 15 other
workers in a brown van driven by Harbhajan Kang or with Master
Singh in a reddish van. She recalled riding with Jasminder Kaur
Cheema and Gurmail Singh Cheema, co-appellants in the within
appeals. The hours of work - between 6 and 8 - were announced by
the farm owners or Bant or Shindo at the end of each day. The
same workers rode to and from work each day and if it rained
heavily they sat inside the van until work could be resumed. She
was picked up before 7: 00 a.m. and did not return home until
nearly 5:00 p.m. and if a field was completed in the middle of
the day, the workers would be taken to another farm to continue
until quitting time. She recalled picking 14 or 15 flats of
strawberries and 10 or 11 flats of raspberries on a good day. She
estimated she picked about 15 large pails of blueberries each
day. On one farm, a machine was used to pick raspberries but
all strawberries had to be picked by hand. The appellant stated
she received cash 4 or 5 times - from Bant - in addition to a
cheque at the end of the season. She did not receive any money on
account of wages owed to her husband and did not repay any of her
wages to Bant or Shindo or Rana. Following a request for some
money, she would receive a payment - from Bant - while working in
a field but never signed any receipt. She had an account at
Scotiabank and deposited a cheque - tab 93 - in the sum of $5,000
to that account on October 28, 1996. The Statement of Earnings -
tab 96 - was given to her by Bant at the end of the season and
showed gross earnings and net earnings of $7,784 and $6,755,
respectively. The appellant stated she did not recall the exact
amount of cash received during the season. The appellant
identified the photograph of Manjit Rana - tab 97 - together with
those depicting Bant, Shindo and Harbhajan Kang but did not
identify Binder Chahal. She identified a photocopy of her SIN
card and her Indian Passport at tab 98. The appellant was driven
by her daughter-in-law from Surrey to Bant and Shindo's home in
Vancouver where the ROE - tab 90 - was handed to her by Shindo
who instructed her to take it to the UI office and apply for
benefits. The appellant identified her signature on her
application - tab 92 - dated October 19, 1996 which was completed
by her daughter-in-law. She recalled attending an HRDC interview
- tab 95 - on December 18, 1997 with her son -
Jagdip Singh Johal - where she was questioned by Gail Buckland
and shown some photographs (tab 97). The Questionnaire - tab 104
- was signed by the appellant but had been completed by her
daughter, Nina Johal. She could not recall the circumstances but
agreed she must have provided the answers written down by her
daughter. An earlier Questionnaire - tab 85 - was signed by the
appellant but completed by her daughter-in-law Sarjit Johal who
had not worked for SRC. In that form, there is no reference to
receiving any cash - only a cheque - in payment of wages. The
appellant stated that was - perhaps - an oversight but had no way
of proving she was paid any wages in cash, so merely referred to
the cheque. She recalled attending at PICS office along with
other SRC workers who had received a letter from HRDC concerning
their employment. She wanted some advice and information about
the situation and had been informed by Bant and/or Shindo that
she needed to work 20 weeks in order to qualify for benefits. She
knew she had worked at the Chinese vegetable Farm in Richmond -
picking zucchini corn, lo bok - for about a week after
the blueberry season finally ended. She could not recall taking
time off during the season and stated she is pursuing her appeal
because she did the work and has told the truth.
[87] The appellant - Gurcharan Kaur Johal -
was cross-examined by Johanna Russell. The appellant agreed
that at the HRDC interview - tab 95 - she named Harbhajan Khang
(Kang) as her driver and told the interviewer she rode to work
everyday in the "same van". However, she stated she went to work
- the first day - with Bant and/or Shindo in a grey van and
after a week, started riding with Harbhajan Kang who became her
usual driver except for 7 or 8 times when she rode with Bhan
Singh Sidhu, referred to by most workers as Master. The appellant
recalled attending a Discovery on July 19, 2001 but did not
remember having seen a book or binder of documents - pertaining
to her own appeal - similar to Exhibit R-20. Counsel pointed
out that according to information provided to HRDC by Harbhajan
Kang, his first day of work was sometime during the third week of
June, 1996 and - therefore - could not have driven her to work
during the first part of June, as she claimed. The appellant
replied that Kang had driven the van after her first week of
work. During the interview - tab 95 - the appellant - at Q. 26 -
told Gail Buckland that "Bant sent a red van" to take her to
work. She denied riding in a grey van (Q.29) and said Kang
(mostly) drove her to and from work in the red van. Counsel
suggested her memory might have been better - on
December 18, 1997 - than during her current testimony and
that in the course of her interviews she had only mentioned Kang
as her driver. The appellant stated she had 4 different drivers
during the course of her employment and - by way of example - had
ridden with either Bant or Shindo from May 26 to June 21. Counsel
pointed out that a few minutes earlier - during direct
examination - she had stated Bant or Shindo had driven her to
work for about a week. In the Questionnaire
- tab 85 - concerning a question about how she
got to work, the answer provided is that she rode in a "red van"
and that Kang drove her. In providing answers to Qs. 7 and 8
of the Questionnaire - tab 104 - the appellant stated that she
rode to work "sometime van, sometime bus" and that the van/bus
driver was "always different driver". The appellant stated she
did not know why that answer would have been given since she had
not ridden to work on the yellow bus. Counsel referred the
appellant to answers given by her husband - Karmjit Singh Johal -
during an HRDC interview to the effect Kang was "always the
driver, except for a couple of times" when he and the appellant
rode to work in a different van driven by a man named Nirmal.
Counsel advised the appellant the Minister was relying on
information received from the owner of Min Ho Farms that he had
no SRC workers on his property until July 1, 1996. The appellant
stated she had worked the first few weeks at that farm at the end
of May and early in June until the strawberry crop - in
Abbotsford - was ready for picking. While picking, the appellant
stated she never shared a flat and men worked with men and women
with women. She reiterated that she did not see any worker using
picking cards at Khakh Farms even though she worked with Harbans
Kaur Kang who - counsel informed her - had testified she used
cards and that many other SRC workers had provided detailed
descriptions about the procedures surrounding the use of picking
cards. Counsel referred the appellant to the notes - tab 82 - of
Janet Mah in which there is a reference to "punch cards" from M
& G Farms Ltd. showing the appellant had picked berries there
for one day in July and two days in August. The appellant replied
that her name might be on some cards but she had never used them
- at any time - while picking berries. The appellant repeated her
summary of the manner by which she received cash payments,
totalling $2,000; they were paid to her by Bant who also handed
her the cheque at his house in final settlement of her wages at
the same time she obtained her ROE. Counsel referred the
appellant to her testimony at Discovery where she said it was
Rana who had paid her cash in the amount of $500 or $600 each
time but only after she had requested some money. She also
explained - in answering Q. 103 - that Rana would usually bring
the money to the field but sometimes she had to travel to his
house to get it. The appellant recalled giving those answers but
explained Rana, Bant and Shindo did the accounting from hours
written down on her calendar. She explained giving those answers
- at Discovery - because although Bant had handed her the cash
payments - while at work in the fields - she did not know whether
he got the money from Rana for the purpose of paying her some
wages. Further, she had informed her daughter-in-law that cash
had been received during the season but for some reason that
information had not been written down properly when responding to
the Questionnaires. Counsel informed the appellant that her net
income was only $6,755 - according to her T4 - but she claimed
SRC had paid her a total of $7,000. The appellant replied she had
been paid by the hour and not by the pound or the flat and merely
reported her income in accordance with the documents issued by
SRC.
[88] The appellant - Gurcharan Kaur Johal -
was re-examined by her agent, Darshen Narang. She stated she
learned Rana was the legal owner of SRC but - at the beginning of
her employment - had considered Bant and/or Shindo to be her
employer. Throughout her employment, she never heard other
workers refer to Rana as the owner of the business but everyone
knew Bant and Shindo and Rana were - somehow - related to each
other. The appellant stated she worked - as claimed - and wanted
to present the facts in the course of her appeal even though HRDC
was seeking a small repayment of only $194 as an alleged
overpayment of benefits.
PRABHJOT KAUR MINHAS
[89] Prabhjot Kaur Minhas testified in
English but the interpreter - Russell Gill - was in Court
throughout her testimony in order to assist, as required. The
respondent's Book of Documents relevant to this appeal -
2000-2335(EI) - is Exhibit R-26. The Minister decided the
appellant was in insurable employment with SRC for 12 weeks
during the period from July 14 to October 5, 1996 and had
insurable earnings in the sum of $1,633. The appellant's position
is that she worked from July 14 to November 30, 1996 and had
insurable earnings of $7,840 as stated in her ROE at tab 87. The
Minister relied on the following assumptions of fact as set forth
in paragraphs 5(j) to 5(u), inclusive, of the Reply to the
appellant's Notice of Appeal:
j) the
Appellant gave birth to her first child on February 19, 1996;
k) the
Appellant worked for Breeza Cafe from July 17, 1996 to
September 11, 1996 and performed dishwashing duties;
l) the
Appellant's total hours during the 8 week period that she
worked at Breeza Cafe were approximately 220 hours;
m) the Appellant
worked for the Payer during the Period as a farm labourer;
n) during the
Period, the Appellant was picked up by the Payer between
6 and 7 a.m. and dropped off at home anywhere between 5 and
8 p.m. for 6 days each week and sometimes 7 days a week;
o) the
Appellant did not provide any services for the Payer beyond
October 5, 1996;
p) a cheque
dated October 3, 1996 for $1,633.00 payable to the Appellant was
negotiated on October 3, 1996 at the Payer's Bank located at
49th and Fraser Street, Vancouver;
q) the
Appellant did not receive any other remuneration from the Payer
except for the $1,633.00 admitted herein;
r) the
Payer did not withhold any amounts on account of payroll
deductions or tax from the remuneration paid to the
Appellant;
s) the records
provided, for example, the ROE, the T4 slip, the
non-negotiated cheque dated September 7, 1996 in the amount
of $4,000.00 and the Employee Earnings Record were fabricated to
give the appearance that the Appellant provided services for the
Payer beyond October 5, 1996 and that the Appellant was paid in
excess of the $1,633.00 admitted, and these records were a
sham;
t) the
Appellant required the 20 weeks of insurable employment reflected
on the ROE in order to qualify for unemployment/employment
insurance benefits; and
u) the
Appellant did not work for the 20 weeks reflected in the ROE.
[90] The appellant is employed as a
residential care attendant and speaks English in the course of
her employment. The appellant was born - in India - in 1971 and
immigrated to Canada in 1991 where she subsequently married the
man who sponsored her. She completed Grade 12 in India and during
the course of her education took English classes from Grade 6
onwards. She enrolled in ESL classes in 1994 and continued
thereafter to take further language instruction and currently
attends classes on a part-time basis. During a term in 1999-2000,
she completed a 9-month residential care attendant course at
Vancouver Community College and has worked in that occupation for
the past 4 years. Following her arrival in Canada, the appellant
worked as a farm labourer from 1991-1994, inclusive, in Yarrow,
B.C. and then moved to Vancouver. In 1995, she worked as a
dishwasher/janitor at a restaurant. She did not work during 1997
and 1998 as she was caring for her two children born in
February, 1996 and May, 1997. In 1996, she started working for
SRC on July 14. The appellant stated her first task was to pick
raspberries, then blueberries and finished her work - on November
30 - on vegetable farms - in Richmond - where she worked after
the berry season was over. She was paid by the pound - 25 cents -
for picking blueberries and $4 per flat for raspberries but when
the berry season was finished, she was paid the hourly wage of $7
to work on the vegetable farms. There was a system to pay pickers
for a partial flat of raspberries and - on a good day - the
appellant was able to pick 15-20 full flats which generated
between $60 and $80 income. She picked between 300 and
350 pounds of blueberries per day - at 25 cents - for a
daily total of $87.50. The usual work day ranged between 8 and 10
hours. The appellant stated she used a pink picking card for
raspberries and a blue card for blueberries. The card - about 3
inches by 5 inches - was in triplicate and she wrote her name on
each new one which was issued when all the spaces had been
punched. The used card was handed in - at the scale - to the SRC
representative or the farmer. She carried the card in her pocket
and assumed picking cards were also issued to other workers.
Other farms used different picking cards but the same card was
used on various fields owned by the same farmer. Due to the
height of the bushes, she was able to see only those pickers
working beside her in the same row. Once a flat was full, the
appellant took it to the scale where it was weighed by the farm
owner or his representative and - sometimes - by Shindo.
Blueberries were placed - initially - into small pails which were
then emptied into a large bucket weighing about 25 pounds. A
full large bucket would be marked on her picking card and if one
was less than full at day's end, the actual weight of the berries
was noted on the card. Each day, the total amount of berries
picked was marked on her card and she was aware of her daily
production since one punch in the card equalled 25 pounds. The
appellant stated she was paid $4 for each flat of raspberries -
about 25 pounds - and noted they were easier to pick than
blueberries. The range in amount picked per day was within 2 or 3
flats. The appellant stated she never lost a picking card and
retained a copy of each one until the end of the season. She also
knew SRC and the farmer had a copy of the picking cards recording
her personal production. The scale was mounted on a truck and
would be moved when the distance from the pickers became too
great. While working on the vegetable farms, she recorded her
hours and even though the crops of carrots, zucchini, cabbages
and turnips were weighed on a scale prior to being packed into a
box, no picking cards were used by the workers. The appellant
started working for SRC when her baby was
4 ½ months old. Her mother lived with her and
her husband and cared for the baby. While working for SRC, she
was pregnant with her second child and had to attend medical
appointments once a month. She also worked as a dishwasher
- part-time - in a café from July 17 to
September 11, 1996 until the business went broke and she was laid
off. Her shift was from 6:00 p.m. to 10:00 or 11:00 p.m.,
4 days per week. After arriving home, she went to bed and
was up by 5:00 a.m. in order to get ready to go to work for SRC.
She was the only member of her household working for SRC and she
inquired about the job because her husband had heard that company
was hiring farm workers and telephoned the Bant/Shindo residence
to make arrangements for her employment. The appellant was
re-married in 1993 and her husband drove taxi despite having a
Master of Business Administration from a university in India and
a Bachelor of Science degree in agriculture. She rode to work -
her first day - with 40 or 50 other people and assumed she would
be paid by the flat and/or pound for picking berries as that had
been the method of payment during her previous farm jobs over the
past 4 years. Sometimes, Shindo picked her up in a blue van and -
on occasion - the appellant used her own vehicle to drive to work
but did not transport any other SRC worker. Although she was paid
every two weeks at her restaurant job - until it went bankrupt -
she had to request some wages from SRC after nearly one month had
elapsed. Later, other cash payments were received but she did not
sign any book or receipt because her husband went to Shindo's
house on 4 or 5 occasions in order to collect her wages. The
appellant received one cheque - tab 90 - in the sum of $1,633. It
was dated 3.10.1996 and she cashed it at the TD bank on October
3, 1996. The appellant was referred to a "I Cash Money Give"
purported cheque - tab 91 - in the sum of
$4,000 payable to Prabhjot K. Minhas and appearing to have her
signature - written as PraBhjot K. Minhas - on the signature
line. The appellant stated that was not her signature because she
does not insert a capital B in the middle and had never seen that
document before. She invited the Court to compare that alleged
signature with the one she placed on her application - tab 95 -
for UI benefits and pointed to the obvious difference. The
appellant estimated she received $4,000 in cash payments - from
SRC - during 1996. She identified her signature on the
Questionnaire - tab 99 - dated November 4, 1999 that was
completed by her husband because her ability to write in English
was still limited at that time. She did not review the contents
of that form prior to signing but was satisfied her husband had
responded correctly because he was aware of the nature of her
work as a result of their discussions at home. The answer to Q.
31(c) regarding rate of pay was "6.50 per hour". At Q. 7, the
response to mode of transportation to work was "by school bus".
The appellant stated she knew she was being paid the hourly
minimum wage for her vegetable work and assumed it was $6.50
rather than $7 at that time. She had stated - earlier in Q. 31 -
that she was paid both by piecework and by the hour and that the
rate of pay for picking blueberries was 25 cents per pound. An
answer within the Questionnaire - tab 82 - sent to her by the
Rulings Officer indicated she rode to work in a school bus driven
by "Surjit Gill". The appellant stated she could not recall the
circumstances pertaining to the completion of this particular
document. At one point, she received a telephone call requesting
her attendance at an HRDC office for purposes of an interview. A
Punjabi interpreter - Sarb Sandhu - was present and she utilized
his services throughout. In her opinion, she provided truthful
answers to the questions and was aware the interview was related
to her employment - in 1996 - by SRC. At that time - June 25,
1997 - her ability to speak English was limited because she had
just begun ESL classes. The warning - at the top of page 1 of the
interview notes - concerning the existence of penalties for
making false statements was translated to her by Sarb Sandhu. At
tab 92, Q. 22, her answer - as recorded by the interviewer - is
that she worked from "Saturday to Thursday - every Friday for 2-2
½ months - after that it was either Sat or Sunday". The
appellant stated she was puzzled by that written response because
she would work 5 or 6 days in a row and then have one or two days
off but she did not necessarily work the same 5 days
consecutively. At Q. 23, the answer provided is that she had not
missed any days of work. The appellant stated that answer is
wrong and would not have been given by her because she saw her
doctor at least once per month. She stated other workers probably
referred to her as "Lally" because she uses that name on an
everyday basis. When completing her application - tab 95 - for UI
benefits she had the ROE - tab 87 - issued by SRC but not the one
from the café that had gone out of business. On the
application - at Q. 35 - it indicates she was no longer working
due to "shortage of work" and also "illness". At Q. 41 of said
form, the explanation was provided that due to her pregnancy she
was "feeling pain while bending over". The appellant stated she
had not informed anyone at SRC about this discomfort but told her
husband and her doctor. However, when her pregnancy progressed,
she told Shindo about the problem and was laid off on November
30, 1996. The appellant stated she was not related to Rana nor
Bant nor Shindo - the apparent principals of SRC - nor had she
repaid any of her wages to any of these people. She had no reason
to inquire of her husband whether he had returned any of her
wages. According to her calculations, she was still owed about
$1,100 at the end of the season and attempted - without success -
to contact Shindo in order to collect the balance. Her husband
filed her tax return for the 1996 taxation year in accordance
with information supplied by SRC.
[91] The appellant - Prabhjot Kaur Minhas -
was cross-examined by Selena Sit. The appellant stated that - in
response to a request from Shindo - she had taken copies of her
picking cards to Shindo's house in order to carry out the final
accounting. Concerning her driver on her first day of work, the
appellant stated she believed it was Rana who had driven the
yellow bus and had taken her to work several times thereafter in
a van which Shindo also drove. She recalled Shindo took her to
work many times but never drove the bus. She would use her own
car only if she had an appointment with her doctor in the
morning, following which she would go to work in time to put in 4
or 5 hours but if she had an afternoon appointment she would not
work that day. The appellant stated her only drivers were Rana
and Shindo and was certain she had never been driven to work by
Harjit Gill. Her answer to Q. 7 in the Questionnaire - tab 92 -
indicates she told the interviewer she was driven to work by
"Harjeet". There is a further reference to "Harjeet" in the
answer to Q. 9. At Q. 10, her answer is noted that she was driven
to work in a school bus and that her driver during the whole time
was "Harjit", a male person. The appellant stated she doubted she
had given that answer in the form it was written as there had
been other drivers. Counsel produced a photo of Manjit Rana
- Exhibit R-18, tab 99 - and asked the appellant if
she could identify that individual. The appellant replied that
person was not her driver but had seen that individual - on
occasion - and knew her husband had dealt with that person in
connection with her employment. She stated she must have been
confused about the proper name of her school bus driver but is
now aware it was definitely not Manjit Rana but must have
assumed Harjit had the family name of Rana. Counsel pointed out
that in the Questionnaire - tab 82 - her driver was "Surjit Gill"
and that there are no SRC records - or other documents - to
substantiate any person with that name ever drove for SRC and
that every other witness testifying thus far in these proceedings
had identified Harjit Singh Gill as the bus driver. Counsel also
informed the appellant she had never named Shindo as a van driver
during the HRDC interview nor when completing the Questionnaires.
The appellant stated she thought her husband knew the name of her
bus driver and had written the name "Harjit Singh" in response to
Q. 8 of the Questionnaire - tab 99 - concerning the identity of
her bus driver. At Discovery on August 1, 2001, the appellant
stated she rode to work - the first day - on the school bus and
went to work on that same bus most of the time except for once or
twice in a van. She had also stated the driver of the bus was
always the same person - Harjit Singh - and the driver of a light
blue van was a male person whose name she did not know (The
appellant requested the assistance of the interpreter - Russell
Gill - to translate written answers at Discovery into oral form
and he continued to assist her thereafter, from time to time, as
required). The appellant replied she meant to say that she had
ridden in a van one or two times per week. Counsel pointed out
the appellant had never mentioned Shindo as her driver until
giving evidence during her direct examination because she had
learned Harjit Gill was laid off on October 5, 1996 and could not
have been driving her to the vegetable farms in Richmond after
that date. The appellant replied she rode to work at Mike's
Farm in the yellow bus and that it was driven by different people
from time to time. Counsel advised the appellant that according
to Shindo's ROE, her last day of work was October 26, 1996. The
appellant replied that might be so but Shindo continued to drive
her to work until her layoff on November 30, 1996, although there
were other drivers during that autumn period. She stated she
picked zucchini on her last day of work. Counsel informed the
appellant that according to information relied on by the
Minister, the zucchini crop was finished by October 15. The
appellant replied the last crop may have been cucumbers. Counsel
advised her the Minister was also relying on information that the
cucumber season was also over by the same date. Counsel referred
the appellant to her answer as noted by the interviewer - to Q.
28, tab 92 - that her last day of work was performed at
Mike's Farm where she had picked lo bok which she described as a
"long, white radish". The appellant stated that although she
worked with carrots, cucumbers and zucchini and chili peppers on
the vegetable farms, she cannot recall which type of vegetable
was picked during a specific period. She was aware of the number
of weeks needed to qualify for UI benefits because she had
received them at the end of previous seasons when laid off from
her farm labourer jobs. According to her pay statement - tab 88 -
the appellant's gross earnings and net earnings were in the sums
of $7,840 and $6,760, respectively. The appellant stated she
received the $1,633 cheque - tab 90 - and a total of $4,000 cash
for a total of $5,633 which is $1,027 less than the full amount
of her wages. She advised the pay statement was not correct in
showing her wages as based on $7 per hour throughout her
employment because she had been paid by the flat or the pound for
picking berries. Although the appellant had stated in her direct
examination that her signature did not appear on the "I Cash
Money Give" purported cheque - tab 91 - she agreed - at Discovery
- that was her signature and explained she had signed in order to
acknowledge receipt of a total of $4,000 received in various
payments during the season. The appellant repeated her earlier
testimony - in direct examination - that the signature on this
purported cheque was not her own and that she had never seen that
so-called cheque until appearing in Court. The appellant agreed
she had never deposited any of her cash payments to any bank
account but stated she used it to pay rent and other bills. In
her view, this method of payment was not abnormal and had been
followed by other farm employers in the past. She did not
complain to the Employment Standards Branch about being owed some
wages at the end of her employment and acknowledged her husband
had reported her SRC income as $7,840 on her income tax return
even though she had received - according to her calculations -
the sum of $5,633.
GURCHARAN SINGH GILL
[92] Gurcharan Singh Gill testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2323(EI) - is
Exhibit R- 16. The Minister decided the appellant was not in
insurable employment with SRC during the period from September 1
to December 31, 1996. The appellant's position is that he was
employed under a contract of service and had insurable earnings
in the sum of $9,680 as stated in his ROE at tab 89. The Minister
relied on the following assumptions of fact as set forth in
paragraphs 5(j) to 5(l) of the Reply to the appellant's Notice of
Appeal:
j) the
Appellant gave conflicting statements to authorities with respect
to the method of pay and the timing of same, the duties of
employment, the identity of fellow workers, the days and hours of
work and the transportation;
k) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record and the pay cheques, in regards to the Appellant,
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
l) the
Appellant did not perform any duties for the Payer during the
Period;
[93] The appellant stated he is employed as
a security guard. He was born - in India - in 1939 and arrived in
Canada in the summer of 1994. He attended school for 12 years and
studied English as a subject since Grade 6. He admitted to being
not only spoiled by his parents but that he was a bad student who
failed to graduate from college. In India, he worked on the
30-acre farm which his family still owns and leases to tenants.
He and his wife have 5 children, one in India and four others
living in the Lower Mainland. He and his wife and a son - Ravjit
Gill - and two daughters were sponsored by a married daughter who
had arrived in Canada 3 years earlier. His son is a
co-appellant and testified earlier in the within appeals. The
appellant stated his wife and children are educated and, although
he can read English, his skill level is not the same as in
Punjabi. Even in the course of his current employment as a
security guard, he is not required to speak English on a regular
basis. In the event he has to contact an emergency operator, he
speaks English only to request his call be transferred to a
Punjabi-speaking dispatcher. His employer has hired a
Punjabi-speaking supervisor to manage the security guards. In
Canada, the appellant attended government-sponsored ESL classes
for about 8 months as well as a job-finding class. In March,
1996, he obtained his Class 4 Driver's Licence which
permitted him to drive a taxi, passenger van and other larger
vehicles. The instruction was in both English and Punjabi but
even though he had a licence, never worked as a cab driver. He
also participated in training approved by the UI office but the
security guard training was not approved by HRDC and would have
affected the amount of benefits being received. The matter was
resolved when he obtained permission to take that course on the
basis he paid the cost of instruction. In 1994, he worked as a
farm labourer for a contractor operating from Surrey. He picked
strawberries, raspberries, blueberries and - later - vegetables.
In 1995, he worked for another farm labour contractor performing
- more or less - the same tasks in sequence as the
crops were ready. Both years, his wife and daughters worked with
him but his son - Ravi - did not. In 1994 and 1995, the appellant
stated they used picking cards upon which the number of flats of
berries and/or pounds were recorded but payment for working on
the vegetable farms was on an hourly basis. Because he and his
family were new to Canada, they just worked and accepted cheques
when issued - on an irregular basis - 3 or 4 times during the
season. In 1996, after finishing his ESL classes at the end of
August, he began working for SRC on September 1. He stated he was
hired by Manjit Rana to work as a driver at a salary of $10 per
hour. His current pay - as a security guard - is $10 per hour and
he is paid - by cheque - every two weeks. The appellant stated he
received one cheque - tab 94 - dated September 27, 1996 which he
deposited to his Canada Trust account but it was NSF and had to
be taken into account at the end of the season during the
settling-up process when he was paid the balance of his wages, in
cash. He could not recall signing any receipt. The appellant also
received a cheque - tab 92 - dated October 25, 1996 in the sum of
$1,300 which he deposited to his Canada Trust account on October
31. Another cheque - tab 93 - in the sum of $3,000 dated 30.11
(November 30, 1996) 1996 was deposited to his account on December
2. A cheque - tab 95 - dated September 17, 1996 in the sum
of $2,000 was deposited to the joint account at Canada Trust. A
purported "I Cash Money Give" - tab 91 - names the appellant as
payee and the amount of $2,000 appears in handwritten and
numerical form. The appellant recognized his signature on the
reverse - as it appears in the middle of the photocopied page -
but stated the rest of the so-called cheque was not in his
handwriting. The appellant had previously operated a joint
account with his wife and/or daughter but opened his own account
in July, 1996. However, all cheques received from SRC were
deposited into the earlier joint account which had been opened on
July 28, 1994 at the Delta branch (Statements from both accounts
are at tab 96). The statement for the joint account - ending
with the number 87 - shows a deposit of $1,300 (same amount as
the cheque at tab 92) on October 31, another deposit of a $3,000
(same amount as the cheque at tab 93) on December 2 as well as
another deposit in the sum of $2,126.66 on September 24, 1996.
The appellant stated he always deposited his SRC cheques and must
have added another small amount to the $2,000 cheque - tab 95 -
dated September 17, 1996 which cleared through the SRC TD bank
account on September 25, 1996. The entry concerning the return of
the $1,900 NSF cheque - tab 94 - is dated October 9. The
appellant had been charged a $20 fee by his branch for
having to return the cheque. He took the NSF cheque to Rana who
explained SRC had a cash flow problem which would be rectified in
the future. The appellant's pay statement - tab 90 - indicates
gross earnings of $9,680 and net earnings in the sum of $8,560.
The appellant stated he considered he was paid in full when laid
off on December 31, 1996. The appellant stated his son
- Ravi - with whom he did not have a good
relationship, had been working for SRC but was laid off earlier.
The appellant stated he had obtained his own job - as a driver -
by telephoning Rana and receiving a call two or three days later
that he was hired. He wanted to earn $12 per hour but Rana would
only pay $10. Although SRC owned 3 vans and one yellow bus -
which he saw parked - he drove only a grey van with a standard
transmission. He recalled one van was green and another was a
light colour. The appellant stated that he began picking up
workers in an alley intersecting with 49th Street in Vancouver.
He drove to Surrey, picked up more people and took them to their
work location. Sometimes - during the day - he drove some workers
to another location. He was paid the sum of $10 per hour based on
an 8-hour day and stated there was no increased amount paid per
hour for any overtime. He was required to maintain the van, keep
it clean to make certain deliveries during the day in accordance
with instructions received from his SRC supervisors . However, he
was not expected to perform any farm labour. Although he
transported 15 passengers on a regular basis, he did not record
their names but would drive any worker home if he or she boarded
his van at the end of the day. As a result, sometimes there were
more passengers on the ride home than in the morning. The
appellant noted that women preferred to ride in his van because
he played devotional songs on the sound system. The appellant
stated he worked 7 days per week and recounted the names of
4 or 5 farms where he had delivered workers. In September, he
usually transported 18 workers but that number was reduced to
between 10 and 12 by December because it had snowed and there was
less work. Shindo was the supervisor and recorded the hours of
work performed each day. On occasion, even though it was not
within his job function, he handed out picking cards - blue - to
workers and wrote the name of the recipient on it. Shindo would
hand him about 25 cards and he would distribute one to each
worker. At the end of the day, he would collect the cards from
the workers only if Shindo and/or Rana were not on location at
quitting time. He stated he would check fuel and other fluid
levels in the van, but Rana and/or Shindo re-fuelled the vehicle.
He recalled transporting Taro Bassi, Lally (Prabhjot) Minhas and
a man named Didar Singh. He stated he drove workers to farms
in Richmond where they picked blueberries or worked at clean-up
or - later - with various types of vegetables. About one week
prior to December 31, he was informed by Rana and/or Shindo that
work was coming to an end because it was snowing. He was advised
that if there was work available next season, he would be called.
He recalled receiving his ROE - tab 89 - at Rana's house a few
days after his layoff. On January 3, 1997, he submitted an
application - tab 88 - for UI benefits that had been completed by
an individual working in the PICS office. On the application - at
box 23 - his earnings are stated to be $560 per week, based on a
56-hour week with earnings of $240 - box 24 - the last
week of employment. According to his pay statement - tab 90 - he
only missed one day of work during the period covered by his ROE.
After receiving all of his UI benefits, he discovered a problem
may have arisen in respect of his claim and recalled attending an
interview at a HRDC office - tab 87 - where he was questioned by
Ted Bowerman in the presence of a Punjabi interpreter. He
received a letter and telephone call informing him of the date
and time of said interview and prior to attending on January 30,
1998, sought advice from the PICS office. Later, he attended a
meeting of a group he considered to be a union representing farm
workers where he complained about his treatment during the HRDC
interview. Specifically, he complained that during the interview
he had been threatened with the loss of his Driver's Licence, as
well as his licence to work as a security guard and could also
run the risk of deportation. In order to establish his identity
at the beginning of the interview, he produced his Indian
passport, SIN card and B.C. Driver's Licence. The appellant
stated he was not complaining about the warning given to him at
the beginning of the interview concerning the penalties arising
from making false statements but only about the threats made at
the conclusion when he refused to withdraw his assertion that he
had been paid - legitimately - by SRC for his work. At
page 8 of the interview, the appellant was asked whether any of
his relatives worked for SRC and he responded in the negative
even though his son - Ravi - was employed by that company in
1996. The appellant replied that he did not consider his sons
and/or daughters as relatives in the usual sense. The
Questionnaire - tab 103 - is not in his own handwriting and he
assumed it had been completed by someone at PICS. The answer to
Q. 7 concerning method of transport to and from work is
"sometimes van, sometime bus". The appellant stated that answer
is not correct because he was driven to Rana's house - at 49th
Street in Vancouver - to pick up the grey van in order to drive
people to work. On some occasions, he would take public transit
from Surrey to Vancouver - a 45 minute trip - to collect the SRC
van. The appellant was referred to the answers to Qs. 18 and 19,
which appeared to indicate he worked in the fields from early
morning until late evening. He explained that he did not read
over the Questionnaire before signing it because he trusted the
people at PICS to do it properly. There were about 40 or 50
people at the PICS meeting but Bant and Shindo refused to attend.
He recalled there were 4 or 5 meetings in total and he purchased
a membership in an association of farm workers and not a
certified union. On occasion, lawyers spoke to the group and
suggested each worker should contribute to legal fees in order to
pursue appropriate legal action. The appellant stated that when
he did not receive his 1996 T4, he telephoned Rana who said it
had been mailed. It never arrived and the CCRA office in Burnaby
provided him with a T4 which he used to file his income tax
return, relevant details of which are provided in the print-out -
tab 102 - showing earnings of $9,680 and other income
- $8,120 - attributable to UI benefits received in
1996 prior to commencing work for SRC (The total EI premiums
deemed paid is $285.50 and the employer's contribution is 1.4
times that amount).
[94] The appellant - Gurcharan Singh Gill -
was cross-examined by Johanna Russell. He agreed he had
received letters from HRDC concerning his employment with SRC and
it was seeking re-payment of the sum of $8,976
- including penalties and interest - as of October 18,
1999. He stated he is not related to Manjit Rana nor is any
member of his family related to that individual. During 1996, the
appellant and his wife lived in a basement suite with their son
- Ravi - and two daughters but later purchased a house
and the mortgage was in the names of himself, his wife and Ravi.
The appellant stated he was able to take his Class 5 Driver's
Licence test in Punjabi but the written examination for the Class
4 Licence and the study book were in English. He also acquired a
chauffeur's permit from the Coquitlam Police. The security guard
licensing test was in English as well as some of the instruction.
In the course of his job, he is required to write daily reports -
in English - describing what actions - if any - were taken in
response to certain situations encountered during his shift. The
appellant stated most of the report can be completed by checking
off certain boxes in a standardized form and the first step taken
is always to alert the Supervisor and the complex reports are
written by that person. Although the appellant stated - in his
direct testimony - that it was not the warning concerning false
statements given to him at the start of his interview that caused
him to feel threatened, he stated he did feel somewhat upset by
that admonition due to the tone of voice used when explaining it
to him. He explained he was under stress and had not been
prepared for the interview but still attempted to answer as
truthfully as possible. He agreed Ravi owned an old grey
Hyundai Excel in 1996. At Discovery on August 23, 2001, the
appellant stated either his daughter - or her husband - owned a
car. The appellant explained that his daughter - Amrit - was
living nearby and - sometimes - drove him to 49th Street in
Vancouver so he could pick up the SRC van and begin hauling
workers to their jobs. He stated Ravi and Amrit drove different
cars and agreed he should have explained - at Discovery - that
the car Ravi drove was registered in Amrit's name only for
insurance purposes. The appellant received UI benefits in respect
of his farm work performed during the 1994 and 1995 seasons and
his SRC employment in 1996. He stated he had not been aware of
the number of weeks needed to qualify - in 1996 - for benefits
and since then has never collected UI because he has only been
without employment for one week. The appellant stated he did not
recall the conversation with Janet Mah - on June 8, 1999 - as
recorded in her notes at tab 82. He agreed the answer recorded
therein is correct to the effect he picked up workers in
Vancouver and Surrey and drove them to a farm in Richmond near a
golf course. Certain answers were noted by Mah that the
appellant had informed her that he "picked blueberries and
vegetables". According to her typed notes, he also identified
Kang as another van driver and had stated he was paid $10 per
hour and deposited all his cheques to his Canada Trust account.
He also apparently informed Mah that his son - Ravi - was in
India and - therefore - was unavailable to speak to her. The
appellant replied that he had never picked berries and/or
vegetables and would never have made such a statement. He
expressed doubt this telephone conversation - with Mah - had ever
taken place and denied stating his son was in India. Turning to
the Questionnaire - tab 103 - the appellant identified his
signature on the last page and even though he maintained it had
been completed by someone at PICS, agreed there was no indication
on the form that he had been provided with assistance. Counsel
referred to Q. 14 which called for a detailed answer of the type
of work performed during each month of employment. By way of
explanation, the appellant stated he "gave them a rough idea and
they prepared it and I came in and signed the form the next day".
The appellant pointed out that he had struck out the words
"sometimes bus" in the answer to Q.7 because he had never ridden
to work in a bus, only in a van. He agreed - at Discovery - he
stated he had given careful thought to the answers in the
Questionnaire but advised that response was not correct because
he had only looked at it - "roughly" - before signing. He agreed
both versions could not be correct and that he had been subject
to a solemn affirmation on both occasions. The appellant drove
the same van during his employment but could not recall the name
of the manufacturer. He stated that is not unusual because even
though he owns a used car and has recorded the licence number, he
does not know the brand name. He recalled picking up a woman
- Lally - at Rana's house and also at her own
residence on two or three occasions and driving her to work. He
stated Rana had informed him there was no need to know the names
of the workers he was transporting to work because some of them
might be receiving benefits from welfare or UI or on some sort of
pension. He recalled driving Jaswinder Bassi to work and
identified a photograph - Exhibit R-20, tab
97 - of Shindo whom he knew to be Bant's wife as well as his
supervisor. He recalled driving a female to work that he knew
only as Balvir Kaur as well as other workers named earlier and a
female he knew as Charan Kaur. He did not recall where these
individuals lived except he thought Balvir Kaur lived on "King
George, the other side of 88th". In addition to the general
admonition from Rana, the appellant stated Rana also told him to
report if any official from CCRA inquired about the identity of
his passengers. The appellant explained it was normal for people
to use nicknames - such as Lally - or to identify themselves by
naming the villages where they were born. Counsel pointed out
that during the interview - p. 6, tab 87 - he told
Bowerman that he could not remember the names of any of his
passengers. In answering Q. 38 of the Questionnaire - tab 103 -
the names of Taro Bassi, Deol, Lali, Kulwant and many others
(including one name that is illegible) are listed as co-workers.
Counsel informed the appellant that according to the ROE, other
documents and based on other information, Taro Kaur Bassi had
worked between May 19 and July 27, 1996 whereas his first day of
alleged employment was September 1, after she had been laid off.
The appellant replied that some people who were supposedly laid
off still went to work and that - perhaps - she
had ridden in the van with her son. Counsel advised the appellant
that at Discovery - Q. 143 - he stated clearly that Taro Kaur
Bassi had been a passenger in his van. Further, counsel advised
that Jaswinder Singh Bassi had already testified that Shindo and
Kang had been his only drivers. The appellant stated he usually
picked up the van at Rana's house but - on occasion - would keep
the van in an alley near his own house if he had to pick up
workers in Surrey. He estimated he kept the van in that location
between 10 and 15 times in a period of 4 months but the rest
of the time had to travel from his home - in Surrey - to Rana's
house - in Vancouver - in order to pick up the vehicle. He could
not recall whether the van used gasoline or diesel and was not
responsible for buying fuel. The appellant stated he used public
transit or Amrit drove him - on occasion - in a car he thought
belonged to Ravi but never drove himself to Rana's residence. He
stated he may have obtained a ride - to Rana's house - with other
people but used public transit most of the time and estimated he
had ridden there with Amrit about 30 times in 4 months. The
appellant stated - as a last resort - Ravi had driven him to
Rana's residence but that was rare because Ravi usually went to
work later. He also rode back home with Ravi "a very few times".
Counsel read a portion of the transcript of Ravi's testimony in
the within proceeding where he stated he had never driven his
father - the appellant - to work or - at least - was sure - in
his own mind - he had not done so. The appellant replied he had
only ridden with Ravi only if it had been an emergency and that
one should bear in mind "Ravi is not a truthful son". He recalled
most of the Vancouver workers were picked up at Rana's house and
the Surrey workers stood in the street near their homes and
waited for him to arrive in the van. Harbahjan - Bajan - Kang and
a man known to him as Binder were also van drivers and Harjit
Gill drove a yellow school bus which was not in operation when he
began working on September 1. The appellant stated Shindo and an
unknown male also drove the van; now and then the van was driven
by Rana. The appellant recalled SRC owned 3 vans: red, grey
and another one, khaki or light-coloured. He remembered driving
out to the Min Ho Farms in Richmond but added it was not on a
regular basis. Counsel pointed out that at the HRDC interview -
tab 87 - on January 30, 1998 - the appellant - at p. 2 - stated
he drove a light-brown van whereas in his testimony in Court, he
maintained he drove a grey van every day for 4 months. The
appellant confirmed he drove the grey van as stated earlier.
Counsel informed the appellant the Minister relied on statements,
other documents and interviews - on some occasions - with Shindo,
Harjit Gill, Bhan Singh (Master), Harbhajan Kang and Binder
Chahal during which none of them ever mentioned the appellant had
worked as a van driver for SRC. Counsel advised the Appellant
that Kang quit working for SRC on October 19th and went to India
on October 24th and that Gill's last day of work was October 5th
and he left for India on October 11, 1996. Further, Counsel
advised the appellant that Balwinder (Binder) Chahal stated
during an HRDC interview - also adopted within a Statutory
Declaration (Exhibit R-5, tab 271) - that he drove the
grey Dodge gas-powered van but worked as a driver for only
two weeks during September and October because work had slowed
down. As a result, Bant and Shindo assumed the role of drivers
which forced him to work in the fields. Counsel read out portions
of interviews with Chahal in which he stated Kang and Master were
the only drivers from Surrey and Harjit (sometimes called Surjit)
Gill drove the school bus. Chahal also advised that Bant and
Shindo also drove workers to the site. Counsel further put to the
appellant that not one worker had ever mentioned he had been
their driver while employed by SRC. The appellant stated "all
these people are wrong". He stated there might be some confusion
because he - Gurcharan Singh Gill - was sometimes
referred to by the nickname "Bajan" which was also used to
identify Harbhajan Singh Kang. Counsel advised the appellant the
Minister relied on statements from other drivers that they kept
the vans at their own home and did not travel from Surrey to
Vancouver just to pick up a vehicle in order to turn around and
drive back to Surrey. Counsel further informed the appellant that
Binder, Kang, Master and Harjit Gill had all advised HRDC they
had paid for gas for the vehicles driven by them and were later
reimbursed upon producing a receipt to Bant and/or Shindo. The
appellant agreed he "might have bought fuel for his van" but
stated he wished to abide by his former statements that he had
"never" fuelled that vehicle in the course of his employment.
Counsel reminded the appellant that during the HRDC interview -
tab 87 - when shown a photo of Harjit Gill, he was unable to
recognize that person. The appellant replied that people look
differently when they are working than in other settings and it
makes it difficult to recognize them, particularly if they are
not wearing a turban. Counsel informed the appellant that during
the interview he had described Ban (Bhan) Singh as a "young
East-Indian male about 40 yrs but looks younger", but was unable
to identify Bhan Singh from a photograph. Counsel advised the
appellant that Bhan Singh was 55 years old in 1996. The appellant
explained he had been under a great deal of pressure at the time
of the interview and had visited a physician the day before in
relation to a medical problem. At the interview, the appellant
stated he had not taken the van home "every night" and did not
mention that - sometimes - he had kept the van at - or near - his
own residence. The appellant stated he was under pressure and not
in his "right mind" during the interview when he told the
interviewer - Bowerman - that he rode to 49th and Main in
Vancouver with Bhan Singh and 10 other people so he could pick up
his van in an alley and meet his passengers who were gathered
nearby. He confirmed that his testimony during direct examination
was the truth and that he had - indeed - travelled to Rana's
house by bus or had obtained a ride with Amrit or - rarely - with
Ravi. Counsel provided the appellant with a resumé of the
statements and/or testimony of other workers, which - taken as a
whole - never indicated that he had driven any of them to work at
any time. For example, Prabhjot (Lally) Minhas testified her
drivers were Shindo and Harjit Gill and - possibly - another
male driver who was not the appellant. Balvir Kaur Mahli
identified Bant, Shindo and Bhan Singh (Master) as her only
drivers. The appellant agreed a conflict existed between the
statements made by various people - including other drivers - and
his own testimony. He recalled driving a female - Manjit Johal -
as well as a woman he knew only as Charan Kaur. He also
remembered a male passenger named Didar Singh. Counsel informed
the appellant the only person with those names that appeared on
the SRC employee list was a co-appellant
- Didar Singh Mehat - who lived in Richmond.
The appellant confirmed he had not picked up any worker in that
municipality and stated he was not familiar with the boundaries
of the cities and towns in the Lower Mainland. Regarding the
nature of the tasks performed for SRC, counsel referred to
statements made by the appellant - at Discovery - that he was
hired strictly as a driver and was not required to do any other
work. The appellant stated that was mostly correct except he had
to maintain the van in a clean condition and used his free time
during the day to walk on the roads outside the farm or sat in
the van and listened to the radio or read a newspaper. He agreed
he forgot to mention - at Discovery - that he handed out picking
cards, on occasion. Counsel advised the appellant other drivers
had stated - to HRDC - they sometimes picked berries,
worked at the scale weighing berries, delivered berries to the
cannery or carried water to workers in the fields. Further,
counsel pointed out some workers had testified that van drivers
handed out and collected picking cards each morning and night,
respectively, and - generally - fulfilled the role of Supervisor.
The appellant explained his own job fell into a different
category because he had advised SRC he could not perform regular
farm labouring work due to the condition of his health. In his
view, it is within the discretion of an employer to accord
preference to a particular worker. He also knew Bant liked to
drink and ensured there was a steady supply of liquor in the van
available to Bant during the day. The appellant accepted the
accuracy of his pay statement - tab 90 - and confirmed he had
been paid the sum of $8,300 in wages - $6,300 in
cheques and $2,000 or $2,200 in cash - which he considered as
payment in full despite a shortfall of between $60 and $260.
Counsel referred the appellant to Q. 223 - at Discovery - when he
was asked about how much cash he received for final pay and to
his response that he received "approximately $3,000, $3,300 or
$3,400 in cash" and that he had counted the money before putting
it in his pocket. He also had described the denominations as
$50s, $100s, $20s and $10s. Counsel reminded the appellant his
testimony in Court - repeatedly - was he had received $2,000 or -
perhaps $2,200 in cash at the end of the season. The appellant
agreed he had provided that answer at Discovery but suggested it
was merely an estimate. Counsel referred to the appellant's bank
statement - tab 96 - for the account ending in the digits 87 and
to the deposit of $2,126.66 on September 24, 1996 (assumed to
include the $2,000 SRC cheque dated September 17, 1996) and to a
withdrawal three days later for $2,000. Counsel also pointed to
entries showing deposits of $1,300 on October 31 of the cheque -
tab 92 - dated October 25, 1996 and two cash withdrawals on
November 13 and November 30, in the sums of $400 and $2,000,
respectively. Further, there is an entry indicating a deposit -
in the sum of $3,000 - on December 2, 1996 of the cheque - tab 93
- dated November 30, 1996. On December 9, 1996 there is a
withdrawal of $2,200, a return entry in the same amount dated
December 20 and a withdrawal of $1,800 on December 31, 1996. The
appellant stated he did not know the reason for the withdrawals
of cash but assured counsel he had not paid any of that money to
Bant and/or Shindo and/or Rana and speculated some of the money
may have been used to repay various persons who had loaned money
to enable his family to complete the purchase of a house in
1996.
[95] In an attempt to clarify the somewhat
startling revelation by the appellant that he curried favour with
Bant by ensuring there was a steady supply of liquor available
through the day, the following exchange took place and this
excerpt of the transcript has been edited only to correct syntax,
grammar or to eliminate word and/or phrase repetition within a
sentence and/or routine words to acknowledge a person had
finished speaking.
Court:
So, Mr. Gill, did you drive to the liquor store and buy it for
him during the day or did you have it in the van?
Gill:
I have told you that and I mean I have been sworn here to tell
the truth... the thing is he had a weakness and I understood that
weakness and so I did that, and not only that, I mean he wanted
to become my partner the next time.
Court:
But I'm just asking, did you have to leave the farm and drive
to the closest liquor store during the day or did you already
have some in the van?
Gill:
I can explain it to you. The thing is, I belong to the
District of Amritsar in Punjab and the way we deal there is that
we offer liquor to anyone and I have seen that once you offer
liquor to people, the work that they're not even going to do,
they start doing it. Maybe this decision is against me but
just listen to one thing. In the City of Amritsar, I went to the
court once to give ... I was a witness, but I went there to
testify which was wrong. The judge that was there, he had a
relationship with us. We handed out a piece of paper and they
called us inside. When I testified, the judge started saying that
I could end up seven years in the prison if I gave a false -- if
I testified wrong. So, I said to the judge that you belong to the
same community as we do. Once you eat somebody's - once you drink
with someone or you have eaten with someone, then you can
actually go and die for that person, or you can kill any other
person ...
The Interpreter:
The Interpreter missed something in the end.
Court:
I don't think it's important. All I asked - a very simple
question - is whether you had to leave the field and go to the
nearest liquor store or whether you had a bottle in the van. I
didn't need a history of Amritsar.
Gill:
I have alcohol at my home all the time and in that van I used
to have alcohol, as well as those other salty, those chips
stuff.
[96] The appellant - Gurcharan Singh Gill -
was re-examined by his agent, Darshen Narang. The appellant
recalled he delivered a certified cheque in the sum of $10,000 to
a law firm in connection with the purchase of a family residence
in October, 1996. Although his family opened an account at a
branch of the Laurentian Bank in order to pay the mortgage on a
monthly basis, that arrangement was not in place to cover the
first one or two payments and cash - approximately $1,500 - was
taken to the bank for that purpose. Other funds were borrowed
from relatives and a total of $24,000 was deposited to the
account - tab 96 - during the month of October. In 1997, the
appellant worked as a van driver for another labour contractor
and did not have to apply for UI benefits following layoff
because he found another job. The appellant stated he came to
suspect - little by little - that some passengers were hiding
and/or disguising their identity for a variety of reasons in
order to avoid disclosing their employment. He agreed some of his
passengers - from time to time - may have worked without ever
appearing on employer records or other documents. Narang advised
the appellant of a decision issued by a Board of Referees -
Exhibit R-6, tab 345, p. 2 - that a man had worked for SRC - in
1996 - without receiving an ROE because his hours were added to
those of his wife in order to increase her eligibility for
subsequent benefits. The appellant stated that did not surprise
him because "everything was happening there".
[97] In further cross-examination by counsel
for the Respondent - Johanna Russell - the
appellant was asked why he would be required to withdraw the sum
of $1,500 to make the monthly mortgage payment if other members
of the family were also contributing to that obligation. The
appellant replied that he was the major partner and had to buy
groceries for the family and that his son - Ravi - was not
"contributing that much". Counsel referred to his statement
during the interview - tab 87, p. 5 - where he said "I share the
house with my son, I pay $600 to my son every month and he pays
the mortgage." The appellant stated this answer was not correct
because - at that time - he had been under severe stress.
SUKHWINDER KAUR TOOT
[98] Sukhwinder Kaur Toot testified in
Punjabi and the questions and answers and other aspects of the
proceedings were translated from English to Punjabi and Punjabi
to English by Russell Gill, interpreter. The respondent's Book of
Documents relevant to the appellant's appeal - 2000-2342(EI) - is
Exhibit R-31. The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks during the period from
May 26 to September 30, 1996 and had insurable earnings in the
sum of $5,000. The appellant's position is that she worked from
April 14 to October 12, 1996 and had insurable earnings of $7,294
as stated in her ROE at tab 87. The Minister relied on the
following assumptions of fact as set forth in paragraphs 5(j) to
5(r) inclusive, in the Reply to the appellant's Notice of
Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer before May
26, 1996;
l) the
Appellant did not provide any services for the Payer beyond
September 30, 1996;
m) the Appellant was
paid $5,000.00, by way of cheque dated August 20, 1996 and
negotiated on October 23, 1996 at the Payer's Bank located at
49th and Fraser Street, Vancouver;
n) the
Appellant did not receive any other remuneration from the Payer
other than the $5,000.00 admitted herein;
o) the Payer
did not withhold any amounts on account of payroll deductions or
tax from the remuneration paid to the Appellant;
p) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer before May 26, 1996 and
beyond September 30, 1996 and that she was paid in excess of
$5,000.00 admitted, and these records were a sham;
q) the
Appellant required the 26 weeks of insurable employment reflected
on the ROE in order to apply for unemployment/employment
insurance benefits; and
r) the
Appellant did not work for the 26 weeks reflected in the ROE.
[99] The appellant stated she had not
attended school in India and cannot read nor write - in Punjabi
or English - and cannot count. As a result, she has no method of
knowing in what month something occured nor does she have a sense
of years or dates, including her own date of birth (A document -
tab 94 - establishes her date of birth in 1949). She came to
Canada in September, 1995 and did not participate in any ESL
instruction. In India, she worked inside the home while the men
performed outside tasks on the farm. She recalled working for
Bant and Rana packing strawberries, raspberries and blueberries.
The following season she worked for another farm labour
contractor. The appellant's entry to Canada - with her husband,
son and daughter - was sponsored by an older daughter who was
married - with one child - and lived in Surrey. Her husband -
Swarn Singh Toot - worked with her in 1996. She recalled hoeing
and cleaning out grass around plants prior to picking
strawberries but cannot remember how long that sort of work
lasted. She estimated the berry crop took about one month,
followed by raspberries and then blueberries which occupied about
the same amount of time to complete the picking. At one point
during the blueberry season, she picked radishes (lo bok) and
turnips. She recalled working at a vegetable farm but does not
know whether it was owned by the Chinese man or the white man.
Each day, she rode to work in a van driven by Master (Bhan Singh)
or Bajan (Harbhajan Kang) and never rode in a yellow bus. The
appellant was seated in the courtroom while the previous witness
- Gurbachan Singh Gill - was in the witness box and
stated he had never been her driver. The appellant stated Master
drove different vans and Kang drove a white van. She stated she
was paid $7 per hour for all of her work and would get cash when
she required money but her husband collected her wages from Rana.
After her employment was finished, the appellant stated she
received a cheque - tab 90 - dated August 20, 1996, in the sum of
$5,000. On October 23, 1996, she and her husband were driven to
the TD bank by Harbhajan Kang - a distant relative through
marriage - and they went inside the bank where she cashed the
cheque. She stated the money was used to repay her daughter and
other relatives who had helped her family. The appellant stated
she did not repay any of that money to Bant and/or Shindo and/or
Rana. In terms of knowing the number of hours worked in a day,
the appellant stated the driver announced the total at the end of
the day. She demonstrated she can tell time - by reading the
clock in the courtroom - but cannot calculate the passage of time
- for example the number of hours elapsed between 9:00 a.m. and
3:00 p.m. - but her husband wore a watch and could verify the
hours worked in a particular day. She recalled riding to and from
work in the same van, although there might have been a different
driver for the return trip. The appellant remembered working at
Khakh Farms and at another farm owned by Sutti (phonetic) in
addition to the vegetable farm. She could fill 5 or 6 buckets of
blueberries a day at the start of the season, increasing to
between 6 and 8 buckets at the peak and dwindling to only two
buckets at the end when the berries were sparse. She estimated
the buckets had a 20-litre capacity. On her last day of
employment - October 12 - the appellant stated she picked the
last of the blueberries. She recalled starting and ending work
the same time as her husband whose ROE - Exhibit R-1, tab 23, p.
34 - indicates he started on April 14 and was laid off on October
12, 1996. After her layoff, the appellant applied for UI benefits
- tab 88 - at the HRDC Surrey office. The appellant was referred
to notes of an interview - tab 93 - on August 20, 1997 at an HRDC
office where she was accompanied her son - Satnam Toot - who
acted as interpreter and to an addendum - tab 96 - and to notes
of another interview - tab 101 - on March 11, 1998. She stated
she had no recollection of attending an interview with her son.
Darshen Narang provided the appellant with details
concerning her Discovery - including some questions
asked and answers given by her - but she was unable to recall
that event. Narang also read out the first 9 questions and
answers - as noted by Janice Morrow - of the appellant's
interview - tab 93 - but the appellant stated she did not recall
the interview nor that she was requested to bring in her bank
book at a later date.
[100] In light of the difficulty experienced by the
Sukhwinder Kaur Toot in recollecting events, counsel for the
respondent - Selena Sit - advised the Court forthcoming witnesses
might provide information relevant to this appeal. The Court
granted counsel's request to reserve the right to cross-examine
the appellant later, if necessary.
DIDAR SINGH MEHAT
[101] Didar Singh Mehat testified in Punjabi and the
questions and answers and other aspects of the proceedings were
translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The respondent's Book of Documents
relevant to the appellant's appeal - 2000-2334(EI) - is Exhibit
R-25. The Minister decided the appellant was employed in
insurable employment with SRC for 15 weeks from June 10 to
September 21, 1996 but found his insurable earnings were nil. On
May 31, 2004, counsel conceded the correct period of insurable
employment was from June 10 to November 9, 1996, but advised the
Minister' position was unchanged regarding the amount - nil - of
insurable earnings. The appellant's position is that he was
employed in insurable employment during the expanded period
conceded by the Minister but had insurable earnings in the sum of
$7,056. The Minister relied on the following assumptions of fact
as set forth in paragraphs 5(j) to 5(n), inclusive, of the Reply
to the appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant did not provide any services for the Payer beyond
September 21, 1996;
l) the
Appellant did not receive any remuneration from the Payer;
m) the records
provided, for example, the ROE, the T4 slip, the Employee
Earnings Record and the non negotiated cheque were fabricated to
give the appearance that the Appellant provided services for the
Payer beyond September 21, 1996 and that he received remuneration
from the Payer, and these records were a sham; and
n) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits.
[102] The appellant's entry to Canada - in 1992 - with
his wife and two daughters was sponsored by his oldest daughter
and - after two weeks - found work in house construction which
lasted for several months. He had not received much education in
India but can read - but not write - Punjabi and can write his
own name and a few other words in English. His wife found work as
a child caregiver and two daughters went to night classes
after work. They were educated in India; one had a B.A. degree
and the other finished Grade 11. The eldest daughter - with a
Grade 10 education - had been married in India and worked
pressing clothes while her husband was a house builder. The
appellant stated he had not been employed by his son-in-law while
working as a construction labourer but had collected
UI benefits after being laid off by that employer. During
the 1993, 1994, 1995 and 1996 farming seasons, he worked for Rana
and Bant. First, the labour contracting business was operated
under Bant's name and then by Rana, Bant's brother-in-law. Bant's
wife - Shindo - also worked in the business. The appellant stated
he is not related to any of the principals of SRC nor is any
member of his extended family related to them. After 1996, the
appellant worked for other farm labour contractors. In 1996, his
first task was picking strawberries for about 4 weeks followed by
raspberries for 4 weeks, blueberries for 6 weeks and - finally -
vegetables. He picked strawberries at Khakh Farms and at another
farm in the Chiliwack area. He recalled travelling to a farm near
the United States/Canada border where he picked raspberries as
well as at a farm owned by the Lidhran family. He remembered
picking berries on farms owned by individuals known to him as
Preem and another operated by Mohinder Singh. He picked
vegetables at two farms - in Richmond - known to him as the
Chinese Farm and Mike's Farm. His wife also worked for SRC during
1996 and even though he could not recall her start and end dates,
in previous years working for Bant, they normally started and
ended work at the same time. The appellant described the method
used to pick strawberries which was to place them in a bucket and
empty it into a flat which held 12 smaller, individual, plastic
containers firmly attached to the inside of the flat. He recalled
it took about 3 buckets to fill a flat which - when full - was
taken to a scale to be counted. At the weighing station, a person
punched the picking card handed to him by the driver earlier that
morning. The flat weighed 18 pounds and numbers were printed on
the cards to correspond with weights. When the picking was good,
he filled 14 or 15 flats per day but as the season progressed,
his daily production was about 10 flats. Two workers would pick
all the ripe berries in a row and leave the green berries which
would be collected during the next round of picking. The same
procedure was used for raspberries and blueberries and the farmer
would notify the labour contractor when pickers were needed to
pick the newly ripened berries. Sometimes, workers would attend
the same field 3 or 4 times in order to pick all the berries. He
estimated he picked 10 flats during the first day of his
employment and the system followed at Khakh Farms was that
only full flats were counted. As a result, the appellant kept
some berries in a bucket in order to top up a flat prior to
quitting time. On occasion, he handed in only a partial flat at
the end of the day and was not paid for those berries. In order
to avoid that situation, he would borrow some berries from a
co-worker in order to fill a flat. However, if he and his wife
were working side-by-side, they could make up a full
flat between them at quitting time. During the day he and/or his
wife would remember the number of flats they had picked and wrote
that number on a calendar after returning home. The picking cards
were handed out - by the driver - each morning to each worker and
were collected every evening. At some farms - not Khakh Farms -
if the flat was overfilled, any weight in excess of 18 pounds was
recorded on the reverse of the picking card. The appellant stated
he was paid $7 per hour for picking raspberries and blueberries,
but when he and his wife worked for Bant in previous years, they
were paid by the pound. He was able to pick 14 or 15 flats of
raspberries per day during the most productive part of the season
but only 10 flats per day towards the end. Again, berries were
placed into buckets and then flats before taking them to the
scale where a picking card was punched. The appellant stated he
could pick 20 flats of blueberries on a good day and 12 or 13 was
the minimum. The flat weighed about 18 pounds and some farms
wrote the actual weight on the reverse of the picking card
whether it was over or under. He did not use picking cards when
working on the vegetable farms and was paid an hourly wage of $7,
increased to $8 during the latter part of his employment. The
appellant stated Bant and Shindo were told - before
the start of their employment - that he and his wife would work
only if paid an hourly wage because they were both experienced
pickers. When he discovered - from talking to other workers -
that the remuneration for picking strawberries was on a piecework
- per flat - basis, he complained to Bant and Shindo during a
meeting in their residence and by the time he and his wife began
picking raspberries, was satisfied both of them were going to be
paid an hourly wage. The appellant stated his wife usually
picked more flats per day than he could during an 8 or 9-hour
day. The hours worked - per day - were the same to each person
who had ridden to work in the same van. He could not recall how
many days he did not work. When the season ended, the appellant
and his wife took their calendar to Bant/Shindo/Rana's house for
the "settling-up" meeting at which their final wages were
calculated. Earlier, he had asked Bant for money for his own
wages and those earned by his wife, and - after repeated demands
- Rana paid them in cash, usually $200 or $300. The appellant
noted it was harder to collect wages from Bant than it had been
in earlier years. During a slack period when he was working - for
SRC - on the vegetable farms, through his own efforts, he found
two weeks employment - with another employer - on a cranberry
farm in the Richmond area. His wife did not accompany him to that
job. He recalled Shindo drove him to work in a red van on his
first day. Later, he rode with Binder and Kang but not in the
yellow school bus. He recalled working in the strawberry field
with between 20 and 25 people in his range of vision and at the
end of the first week Shindo informed him that the pay for him
and his wife would be at an hourly rate. Later, he assumed that
Shindo had converted his pay to an hourly rate from the beginning
even though - for a certain period - it had been calculated on
the basis of payment per flat. He identified his signature on an
application - tab 101 - for UI benefits dated November 15, 1996.
His ROE - tab 100 - indicates he did not work for SRC from
September 22 to October 26, a portion of which was spent working
at the cranberry farm. He received an ROE from that employer
together with a cheque which he deposited in his bank account. He
identified his signature on the Questionnaires at tab 102
and tab 82. He attended an HRDC interview
- tab 96 - with Jeannie Suric and was accompanied
by his son-in-law - Suki - who assisted with the interpretation
into Punjabi. He agreed he had been under an obligation to tell
the truth at the interview. At the vegetable farm, he picked
cabbages and turnips by cutting them off with a knife but - at p.
2 of his interview - his answer is recorded that he "planted"
zucchini, cabbages and cucumbers. The appellant confirmed that
response was correct and that this task was performed between the
strawberry and raspberry season. During the interview, he agreed
he told Suric he had been paid only by cheque but stated he had
actually been paid in a combination of cheque and cash. Following
his layoff, he met with Rana and Shindo and was accompanied by
his wife and daughter, Ranjit. He estimated they were paid about
$300 or $400 in cash at that time. The appellant was referred to
a purported cheque - tab 98 - with the writing "I Cash Money
Give" in the sum of $6,000 and dated September 30, 1996. He
stated he did not comprehend the nature of the alleged
transaction connected with that piece of paper. The appellant
stated that following the HRDC interview, he went to see Shindo
and inquired about obtaining receipts for the cash payments made
to him. She handed him two pieces of paper - tab 91 - each with
"SRC" written on the upper portion and the sum of $500 and the
appellant's signature written thereon. He took those two
documents - that he considered to be proof he had
received some money - to the HRDC office. He stated he wished his
pay would have been in the form of cheques - rather
than cash - but it was no different than when he worked for Bant
in previous seasons. The Questionnaire - tab 102 - was completed
by his son-in-law - Suki - but the appellant did not recall any
aspect of this event, including the written answer to Q. 34 that
he had been paid "cash only" by Rana. The appellant identified a
copy of his account statement - tab 95 - issued by VanCity Credit
Union for the period from June 1 to December 31, 1996. He also
identified the document - tab 92 - pertaining to the joint
account - with his wife - at Richmond Savings & Credit Union.
A bundle of documents pertaining to Surjit Kaur Mehat containing
three cheques in the sums of $3,000, $3,000 and $1,000 for a
total of $7,000 was filed as Exhibit R-39.
[103] The appellant - Didar Singh Mehat - was
cross-examined by Johanna Russell. The appellant recalled
that he attended an HRDC interview - tab 96 -
where he produced his SIN card and Indian passport. He was
accompanied by his daughter - Ravinder Shergill - who had been in
Canada since 1992. Counsel referred to a portion of the typed
notes of the interviewer - Jeannie Suric - which
describes the voluntary disclosure by Ravinder that she had not
really been living with her father - in 1996 - as stated earlier
during an attempt to vouch for her father's employment at SRC but
was in Edmonton at that time, and that she telephoned home nearly
every day and was told by a member of her family that they went
to work every day in a red van. The appellant stated his daughter
was wrong in providing information about when she moved to
Edmonton and her error was probably due to the fact she was
nervous. At p. 6 of the interview notes, the appellant was asked
to confirm that Binder and Shindo were his only drivers and he
replied "No one else, just the two of them". The appellant agreed
that - at Discovery - he identified Binder and Shindo as his only
drivers and had not mentioned Kang and/or Rana. He acknowledged
the answer to Q. 8 of the Questionnaire - tab 102 - named Bhajan
(Harbhajan) Singh Kang as one of his drivers. Counsel advised the
appellant the Minister relied on various business records of SRC
and a statement from Shindo that she rode in the bus - driven by
Harjit Gill - to the strawberry fields in Abbotsford and that
Binder's first day of work was July 1, 1996, according to his
Statutory Declaration in Exhibit R-5, tab 271.
The appellant replied that he had no control over the statements
of Shindo or anyone else. He recalled working with Gurmail Singh
Gill and had worked with him during earlier seasons. He stated
SRC owned several vans and these vehicles were parked away from
the fields and the workers walked to the work site. He rode in a
red van and - on occasion - a white one but did not know the
maximum passenger capacity of each except there were 3 or 4 rows
of forward-facing seats. The appellant confirmed that the van
driver handed out a picking card which he kept in his pocket
until quitting time when he would hand it back to the driver.
Counsel referred to answers given by the appellant at Discovery
to Qs. 200 and 201, that he received a picking card with numbers
of pounds printed thereon, the card was punched at the scale and
that he took his copy of the card home with him each night where
he stored it in a safe place - together with his other cards and
his wife's picking cards - until the end of the season. Counsel
pointed out he must have had up to 180 picking cards - in total -
in his home if he had actually followed this procedure and
commented that both versions could not be correct. The appellant
stated his memory - sometimes - is bad. Counsel suggested he
attempted to hide - during his direct testimony - any
retention of picking cards because he wanted the Court to believe
he had been paid - throughout - on an hourly basis regardless of
the task performed. The appellant explained he had taken picking
cards to the meeting at Rana's house at the end of the season but
they were only for strawberries which were picked during the
first few days of his employment before he complained to Shindo
about not wanting to be paid on a per flat basis. Counsel
reminded him that - during his direct examination - he had stated
- emphatically - that he never took a picking card home because
he - and/or his wife - was able to remember the number of flats
picked on any given day. The appellant acknowledged the correct
answer was that he retained the picking cards for only the first
week. At Discovery - Q. 223 - the appellant stated he knew he had
to retain picking cards in order to return them to Rana. He went
on to say that when working with the vegetables he was paid by
the hour according to the amount announced by the driver. The
appellant replied that the reason he distinguished between the
berry picking and the vegetable work was in the context of the
first week of employment. Counsel read an answer to Q. 104
of his Discovery where he explained that if needed elsewhere -
while picking berries - he and other men would be transported to
another work location to perform tasks such as hoeing or loading
cabbages onto trucks and would be paid on an hourly basis for
that work. Counsel suggested to the appellant that his answer
demonstrated - clearly - he understood the difference in pay
methods between picking berries where he was paid by the flat and
other work pertaining to vegetables. Counsel also read out the
appellant's answers to Qs. 241, 266 and 273 where he had
stated their picking cards were taken to Rana for an accounting
and that Rana had taken "some time to look over all the cards"
before looking at the appellant's record of hours written on a
calendar. Counsel informed the appellant the Minister relied on
information received from various farms - including M &
G Bros. Farms Ltd (Gill Bros.) - to indicate SRC had provided
about 50 workers in July and August and retained a copy of
picking cards on which the pickers' names and dates and hours
worked were recorded. In addition, the information provided
showed Gill Bros. paid SRC $5.35 per 20-pound pail of blueberries
picked and $4.35 per flat of raspberries and that an average
worker picked between 14 and 17 pails of blueberries per day.
Counsel suggested it was not reasonable for the appellant to be
paid $7 per hour for 8 or 9 hours per day if he only picked 14 or
15 flats of raspberries because SRC would only receive - at most
- from Gill Bros the sum of $65.25 whereas the total of his
hourly pay would be $63. Therefore, when the appellant picked
only 10 flats during an ordinary day, SRC would be losing money
by paying him an hourly wage. Counsel further advised the
appellant that his co-worker - Gurmail Singh Gill
- informed HRDC that he had been paid by the weight and/or flat
for all the berries picked - in 1996 - just as in those previous
years when he worked for Bant. The appellant repeated his
assertion that he was paid an hourly rate regardless of the
arrangement in effect between SRC and Gill Farms or any other
farmer. The appellant's pay statement - tab 99 - is based on an
hourly rate of $7 until the end of his employment. At Discovery,
the appellant answered Q. 259 by stating he and his wife and Rana
had "settled on $8.00 per hour before we started" because that
was a condition of their agreement to work for SRC. During the
interview - tab 96, p. 2 - the appellant's answer is recorded
that his rate of pay was $8.00 per hour. The appellant stated he
could not recall giving that answer and advised he "forgets
things" from time to time. The appellant's pay statement
indicates he was working 56 hours per week consistently to the
end of his employment whereas during his HRDC interview he told
Suric that he worked two or three days a week at the Chinese
Farm or Mike's Farm in Richmond. The appellant agreed it was
possible towards the end of the season that SRC was rotating
workers on the basis of two or three days per week but the berry
work had been performed 10 hours per day, 7 days a week even
though the pay statement shows only 112 hours every two weeks.
According to his pay statement - tab 99 - his net earnings were
$6,088 and his wife's net pay - according to Exhibit R-39, tab 1
- was $6,023. However, the 3 cheques she received - tabs 14, 15
and 16 of that exhibit - totalled $7,000. Counsel pointed out the
appellant's position was that he and his wife had been paid a
total of $13,000 for their work but their net pay
- added together - amounted to $12,111, indicating
they had been overpaid by $889. The appellant stated he could
only attribute any such overpayment to a bonus paid by Bant and
Shindo because he and his wife were good workers or because their
daughter was about to be married. Two of the cheques issued to
the appellant's wife - Surjit Kaur Mehat - were negotiated on
October 21, 1996, even though one cheque was dated October 1,
1996. The appellant stated he was not aware of the dates when
those cheques were received and/or deposited. During the
interview - tab 96 at p. 2 - the appellant's answer - as noted by
the interviewer - is that he received "a total of $8,000 in cash
and cheques". A few questions earlier, he told Suric he was "paid
by cheques only". He also explained to Suric that the cheques
were deposited to the joint account he and his wife had at the
Richmond Savings & Credit Union on Cambie Street. At p. 6, -
again - he referred to depositing a cheque to his account. He
also said he received $100 in cash from Rana whenever he asked
for some money. The appellant stated he could not explain why he
had provided those answers concerning the receipt and deposit of
those cheques. During the interview, Suric pointed out to the
appellant that the $6,000 purported "I Cash Money Give" cheque -
tab 98 - was dated September 30 but to that point had earned only
$5,426.58. The appellant replied "I don't know I am uneducated".
When informed by Suric there were no cancelled cheques in the SRC
records to prove he had ever been paid and no proof of deposits
of any cheques into his account, the appellant stated he did not
remember if he was paid by cheque but had not worked for free.
The appellant referred to the purported cheque - tab 98 - and
explained he had deposited that cheque to his account but it had
"bounced" so he and his wife and daughter-in-law went to the bank
a few days later to discuss the situation (I informed the
appellant the evidence was clear this so-called cheque had never
been issued by SRC, was not signed by Rana, and had never been
deposited into any account. The appellant stated his family had
told him the story about a cheque being N.S.F. and he assumed it
was that $6,000 cheque). During the telephone conversation
between Janet Mah and the appellant's son-in-law who,
according to the notes - tab 83 - had been granted permission to
interpret for him, the information was relayed that the appellant
was paid "$7 per hour, cash". When Mah asked whether the money
was deposited to the appellant's bank account, the interpreted
answer was "you know my father-in-law, he kept the cash to spend,
because his daughter was getting married". Counsel pointed out to
the appellant that his daughter was not married until December,
1996 and that - at Discovery - the answer to Q. 354, upon being
shown the purported cheque - tab 98 - was that he had never
received a cheque from Rana and had gone to the Bant/Shindo/Rana
residence in order to inquire about that omission. The appellant
was referred to the notes - tab 90 - concerning his visit to the
HRDC office with his daughter - Ranjit Lidhar -
where he produced two pieces of paper signed by D. Mehat and
apparently gave an explanation that he had received the sum of
$500 on two occasions - in January and February, 1996 -
because his daughter had been married in December, 1995 and he
had no money left. He explained further - according to
the notes - that he requested the advance payments because he and
Rana both knew he would be working during the upcoming farming
season. The notes continue concerning the $6,000 cheque which the
appellant said had been returned NSF and that Rana had given him
cash to replace it. The appellant denied making those statements
or providing those explanations. Counsel referred the appellant
to Exhibit R-39, tabs 14-16, inclusive, containing copies of
three cheques in the sums of $1,000, $3,000 and $3,000 issued to
his wife, Surjit Kaur Mehat. All cheques were cashed at the
Richmond Savings & Credit Union rather than deposited into
their joint account, as verified by the account statement
- Exhibit R-25, tab 92 - which shows only
one deposit of $412.00 between May 31 and December 31, 1996.
[104] The appellant - Didar Singh Mehat - was
re-examined by his agent, Darshen Narang. He stated his
daughter - Ravjinder Shergill - was unreliable when telling the
HRDC interviewer that she had been living in Edmonton during the
summer of 1996 and - therefore - could not verify her father's
employment with SRC. He stated the truth of the matter is that
she had been in Edmonton for only a short period of time but
returned to live at home - in Surrey - during 1996, before being
married on December 25.
[105] Darshen Narang advised the Court he would call
witnesses on behalf of the appellants represented by him after
the remaining appellants - whether represented by other agents or
appearing on their own behalf - had the opportunity to testify in
support of their own appeal.
GURMAIL SINGH GILL
[106] Gurmail Singh Gill testified in Punjabi and the
questions and answers and other aspects of the proceedings were
translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The appellant was represented by his
agent, Sadhu Tiwana. The respondent's Book of Documents relevant
to the appellant's appeal - 2000-2653(EI) - is Exhibit
R-17. The Minister decided the appellant was employed in
insurable employment with SRC for 17 weeks during the period from
June 23 to October 19, 1996 and had insurable earnings in
the sum of $3,151. The appellant's position is that he was
employed from June 23 to November 2, 1996 and had insurable
earnings in the sum of $7,448 in accordance with his ROE at tab
98. The Minister relied on the following assumptions of fact as
set forth in paragraphs 3(j) to (q) of the Reply to the
appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
Labourer;
k) the
Appellant did not provide any services for the Payer after
October 19, 1996;
l
the Appellant was paid $1,165.00 by way of cheque dated September
19, 1996 and negotiated on November 29, 1996 and $1,986.00 by
cheque dated October 18, 1996, which cheque was negotiated on
October 30, 1996, for his work during the Period;
m) the Appellant did
not receive any other remuneration from the Payer other than the
$3,151.00 admitted herein;
n) the Payer
did not withhold any amounts on account of payroll deductions and
tax from the remuneration paid to the Appellant;
o) the records
provided, for example, the ROE, the T4 slip and the Employee
Earnings Record were fabricated to give the appearance that the
Appellant provided services for the Payer after October 19, 1996
and was paid in excess of $3,151.00 admitted, and these records
were a sham;
p) the
Appellant required the weeks of insurable employment reflected on
the ROE in order to qualify for unemployment/employment insurance
benefits;
q) the
Appellant did not work for the 19 weeks reflected in the ROE.
[107] The appellant stated he arrived in Canada in 1993.
He was unable to provide his telephone number or residential
address to the Registrar because he is not familiar with English
numbers. Although he was uncertain of his exact age, he knew he
was older than 66. Four months after coming to Canada, he began
working as a farm labourer and - in 1996 - started working for a
labour contracting business operated by Bant, Shindo and Rana. He
was paid some wages in cash and also received a cheque but did
not have a bank account in 1996. He stated he had no way of
proving he had been paid in cash. The appellant thought one
cheque had been returned - NSF - by SRC's bank but agreed he was
referring to the $4,000 "I Cash Money Give" purported cheque at
tab 94. The cheque - tab 95 - dated September 19, 1996 - in the
sum of $1,165 - was endorsed by the appellant by placing his mark
"X" thereon and cashing it at the TD Bank on November 29, 1996.
The same procedure was followed in order to cash the cheque - tab
96 - dated 18.10.1996 (October 18) at TD bank on October 30,
1996. On both occasions, his son and brother-in-law drove him to
the bank. The appellant stated he received $4,000 in cash and
assumes that is the reason for placing his mark "X" on the
signature line of the purported cheque at tab 94. He stated he
received cash in small amounts - $200 - from time to time after
requesting some money from either Rana or Shindo and the balance
of his wages was paid - in cash - at Rana's residence on November
5, 1996, the same day he obtained his ROE. He did not sign any
receipts for the cash. Although his wages were paid on an
irregular basis and only after he requested some money, the
appellant stated he was satisfied SRC management was not going to
"rip him off" and - as he anticipated - eventually received his
wages in full.
[108] The appellant - Gurmail Singh Gill - was
cross-examined by Johanna Russell. Concerning the
appellant's statement - in direct examination - that he did not
operate a bank account in 1996, counsel referred to his answers -
at Discovery - to Qs. 319 and 320 where he stated he had an
account - with his son, Balbir Singh Gill - at a certain
branch of the Royal Bank that had been opened after he arrived in
Canada. The appellant agreed he had a joint account at the
Royal Bank and - through his agent - provided a copy of his
bank book pertaining to account activities from July 23 to
December 31, 1996 (That document is located at tab 8 of Exhibit
R-8, Respondent's Miscellaneous Book of Documents). The appellant
stated that before that date, he turned over all his income and
earnings to his son. The appellant recalled the circumstances of
his interview - Exhibit R-17, tab 91 - with Jeannie Suric - at
the Richmond HRDC office - on January 21, 1998. He signed "X" on
the last page of the notes taken by Suric and acknowledged he had
been under an obligation to tell the truth and stated he had been
truthful in his responses. At p. 15 - near the bottom - the
appellant's answer concerning whether the two cheques - tabs 94
and 95 - were deposited was that they had been deposited at the
Royal Bank - #3 and Williams Branch - into an account that was
his own account and not a joint account with his son as Suric had
suggested in a follow-up question. The appellant denied he had
provided this answer and when he had given the answer - in direct
examination - about not having a bank account in 1996, he had
understood the question to have been whether he had his own
personal account rather than another form of account such as the
joint account he operated with his son, Balvir. The appellant
stated he has lived with Balvir and his family since coming to
Canada. Balvir is educated and speaks English. After being
informed by counsel that a document showed his date of birth in
July, 1935, the appellant agreed he was 61 while working for SRC
during the 1996 season. He worked for Bant during three previous
seasons when Bant was operating a labour contracting business
under a name other than SRC. During the interview - tab 91 - he
told Suric he had worked with Manjit Rana on some farms in
Lytton, B.C. during 1995 and Rana had asked if he was interested
in working - the following season - for a company that Rana was
forming. The appellant stated he had been picking ginseng
roots on farms in the Lytton area but had never worked there with
Rana although he had picked berries with him at some point in
1995. In 1994 and 1995, while working for Bant, he was paid by
the pound for picking blueberries and by the flat for
strawberries and raspberries and received an hourly rate when
working with vegetables. In 1996, he stated he was paid 25 cents
per pound for blueberries, $3.00 per flat for both strawberries
and raspberries and $6 per hour for performing tasks on vegetable
farms after October 19. The rates per flat and per pound had not
changed since 1993. He used picking cards which came in
triplicate so one copy could be handed to the farmer, one to the
labour contractor and one retained by the worker. He received a
new card each day and although different farms used a different
card, the colours used were yellow for raspberries, blue for
blueberries and red for strawberries. Full strawberry and
raspberry flats weighed 20 pounds but the contents - berries -
were recorded on the basis that 18 pounds was a full flat. He did
not share a picking card with any other worker. Blueberries were
placed into boxes and any extra weight in excess of the standard
was recorded and included in calculations at the end of the day.
The appellant stated he was not aware of anyone in the
berry-picking industry being paid by the hour rather than on a
piecework basis and in his experience had observed this rule was
applicable to everyone while picking berries. An hourly rate - in
his view - was applicable only when working on vegetable farms
and he kept track of his hours when performing tasks at those
locations because there were occasions when he worked 11 hours to
fill an order that needed to be shipped to a customer. When
picking berries in the Chiliwack area, he was picked up at 5:30
a.m. and arrived at work nearly three hours later because
other workers were collected along the way and returned home
around 8:30 p.m. The travel time was less when he worked on farms
in the Abbotsford area and he could pick until 7:00 p.m. before
boarding the van to be driven home. In the Chiliwack region, he
recalled picking both strawberries and raspberries at Khakh Farms
and strawberries at Gill Farms in addition to two or three other
locations. He picked blueberries at several farms in Richmond and
at Gill Farms in Abbotsford. He never rode to work in the school
bus, although he saw that vehicle hauling co-workers to the same
fields where he was picking. When working on the vegetable farms,
the van drivers would announce the hours worked that day and -
sometimes - the workers disagreed with that number. He instructed
his daughter-in-law to write down his hours - in a book - some of
which were spent working on farms where he picked potatoes or
pumpkins or corn. He stated Bajan (Harbhajan) Singh Kang was
his van driver only during the berry season. While working on
vegetable farms, he was driven by Shindo and different
male drivers. Counsel pointed out to the appellant that - at
tab 91, p. 4 - his answer is recorded that he was "certain" Rana
drove him to work in a red van. He stated this answer was not
correct. He stated all drivers - including Kang - worked picking
berries. The farm owners/managers gave instructions to workers.
Even if berries were not ripe on a certain day during the season,
he did not take a day off but was transported to work on a
vegetable farm. Only later in the overall farming season did he
work less than 5 consecutive days and agreed that SRC would
"rotate the workers" between the vegetable farms. At the end of
the strawberry season, he used his copy of the picking cards to
calculate how much he had earned. He followed the same procedure
with respect to raspberries but calculated his blueberry-picking
earnings by the pound. On a good day, he picked between 20 and 22
flats of strawberries but production would be as low as 14 or 15.
Raspberry production ranged from a high of 13 to a low of 8 or 9
flats. A productive day picking blueberries would yield 225
pounds. The appellant stated he earned - sometimes -
only $30 for a 10-hour day - including travel - for picking
berries and commented that raspberries were less rewarding for
pickers than other berry crops. Counsel referred the appellant to
his pay statement - tab 97 - which showed his hourly salary as $7
throughout the entire period of his employment. It indicated he
had worked every day and earned gross pay of $7,448 and net pay
of $6,424. The appellant stated the pay statement is false in
that he was not paid on the basis of $7 per hour and did not work
exactly 8 hours per day. The appellant confirmed he had cashed
the two cheques - tabs 95 and 96 - in the sums of $1,165 and
$1,986, respectively, for a total of $3,151, the amount of
insurable earnings accepted by the Minister in issuing the
decision. Counsel pointed out that if he received $200 in cash -
at some point - as well as the lump sum of $4,000 in cash, he
would have received a total of $7,351 even without taking into
account other small cash payments allegedly received from time to
time and that total would exceed the net earnings according to
the pay statement. During the HRDC interview - tab 91, pp.7-8 -
the appellant's answer is noted - by Suric - that - after working
only two months - he received $4,500 in cash because his brother
- in India - was ill and needed money. The appellant recalled
that answer and added his son had arranged to send the money to
India. Counsel asked the appellant to explain why - if he had
received $4,500 after only two months - he would be entitled to
receive a further cash payment of $4,000 in addition to the two
cheques cashed at the TD bank. The appellant replied "I am
illiterate" and added that he was also collecting wages for his
son's brother-in-law and mother-in-law who also worked for SRC.
Counsel referred the appellant to various answers provided during
the HRDC interview - tab 91 - that he was driven
to work - by Rana - in a red van and - sometimes - in a white
van. Suric advised the appellant that Rana did not have a
driver's licence, to which he responded "I don't know, he picked
me up and he did drive". The appellant agreed he had identified a
picture of Rana at the interview and stated the correct version
of events is that Rana did drive him to work even though he had
denied it earlier in his testimony during direct examination and
cross-examination. He continued to explain that had he known at
the HRDC interview that his answers would be used - later - in a
court case he would not have given some of them. During the
telephone discussion - tab 85 - between Janet Mah and the
appellant's son - Balbir Singh Gill - the appellant's response -
through his son - to the question concerning the identity of his
driver on his last day of work was that he did not remember
because it was "a long time ago". The only driver referred to
during that interview is Harbhajan Singh Kang. Counsel asked the
appellant why he never mentioned Shindo as his driver since
Kang's last day of work was October 19 and if the appellant had
worked until November 2 - as he alleged - then Kang could not
have been his driver. The appellant stated Shindo drove him to
work at the vegetable farms and had "lied to the government"
about her purported layoff on October 26.
[109] (Sadhu Tiwana - agent for the appellant - was
advised of his right to attend at a later date for the purpose of
cross-examining witnesses called by the respondent, particularly
those whose testimony was expected to relate to the appellant
specifically as well as any other witness, including other
appellants.)
BHAGWANT KAUR GREWAL
[110] Bhagwant Kaur Grewal testified in Punjabi and the
questions and answers and other aspects of the proceedings were
translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The appellant appeared on her own
behalf. The respondent's Book of Documents relevant to the
appellant's appeal - 2000-2324(EI) - is Exhibit R-34.
The Minister decided the appellant was not employed in insurable
employment with SRC during the period from June 9 to October 26,
1996 because she was not employed pursuant to a contract of
service. Counsel informed the Court the Minister's position had
changed and, although it was acknowledged the appellant had been
in insurable employment with SRC from July 14 to September 2,
1996, the Minister still did not accept there had been any
insurable earnings during that period. The appellant's position
is that she was employed from June 9 to October 26, 1996 and had
insurable earnings in the sum of $7,840 as shown on her ROE at
tab 88. The Minister relied on the following assumptions of fact
as set forth in paragraphs 5(j) to 5(m), inclusive, of the Reply
to the appellant's Notice of Appeal:
j) the
Appellant did not perform any duties for the Payer during the
Period;
k) the
Appellant gave conflicting statements to authorities with respect
to the duties, the locations of the farms, the method of payment,
the period of employment and the days and hours worked;
l)
records provided, for example, the ROE, the T4 slip, the employee
earnings record, the pay cheques, in respect to the Appellant,
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
m) the Worker
required the weeks reflected on the ROE to qualify for
employment/unemployment insurance benefits.
[111] The appellant stated she went to the Sikh Temple
and spoke with a man who told her Bant had some work. A few days
later she started to work for SRC and rode in a red van driven by
Shindo. The first tasks - digging out grass from around
cauliflower - were performed at Richmond, for a few days before
the start of strawberry season. She stated her pay was $7 per
hour and she worked between 10 and 15 days at Khakh Farms. Then,
raspberry season started and she picked at the Lidher Farm. She
travelled to work by van and bus. The van was driven by Shindo
and the big, yellow bus was always driven by Harjit Gill. She
could recall the names of three farms but worked on others.
Following the raspberry season which lasted 4 to 6 weeks, she
picked blueberries at Gill Farm and on a farm in Richmond owned
by a white female. She stated that after finishing some clean-up
work at the end of the blueberry season, she started work on a
vegetable farm - the Chinese Farm - in Richmond where the
crops were zucchini, peppers, lettuce and radishes. During the
berry season, she also worked from time to time at a vegetable
farm. The appellant telephoned Rana to find out why the van had
not picked her up for 3 or 4 days and was told there was no more
work and that she should attend at his place to pick up her
"weeks paper" (ROE). She went with her daughter to collect the
ROE - tab 88 - dated October 27, 1996 and received a cheque - tab
90 - dated 7.7.96 (July 7, 1996) in the sum of $2,000 which was
cashed at SRC's bank on November 4, 1996. The appellant
identified her signature - in Punjabi - as well as her SIN which
was noted on the endorsement area. The appellant stated she had
an account at the Royal bank on Fraser Street but needed the
money to give to her children who were in the process of opening
a grocery store business. She stated that money was received
during the season and she received $400 or $500 from either
Shindo or Rana a few days after requesting some of her wages.
Usually, the money would be handed to her by Shindo when picking
her up in the van. The appellant stated she did not receive the
"I Cash Money Give" purported cheque - tab 91 - in the
sum of $5,000 and that it was not her signature thereon. She
stated she had also received a cheque in the sum of $1,000 at the
beginning of the season. According to her pay statement - tab 89
- she had gross earnings of $7,840 and net pay in the sum of
$6,764. She recalled receiving between $500 and $700 in cash when
she received her ROE. Her children kept track of her hours worked
and marked down the time according to her instructions. Before
1996, she had worked for Bant and Shindo and Rana had not been
involved with the business. Since arriving in Canada - in 1992 -
she had worked for other farm labourer contractors and had been
paid - by cheque - every 15 days. She identified her signature on
her October 30, 1996 application - tab 98 - for UI
benefits. The appellant stated she used picking cards when
picking the different berries even though she was paid on an
hourly basis. The drivers handed out picking cards which came in
3 copies. The card was returned to the driver at night and
workers would be told - by the driver - how many hours had been
worked that day so they could write down that number. The
appellant stated Shindo was her only van driver and, although a
different van was used on occasion, it was usually the red one.
The appellant recalled providing answers to her daughter - Pinder
- who interpreted the questions and wrote down her answers in
order to complete the Questionnaire - tab 102 - dated November 1,
1999. At Qs. 36 and 37, 40 and 41, the written answers are clear
that the appellant never used any picking cards. The answer to
Q.8 is "there was a different driver every day". The appellant
stated her daughter made those mistakes while recording answers
to those questions. She speculated the errors may have occurred
because the picking cards were used only when picking berries and
not when she worked on vegetable farms.
[112] The appellant - Bhagwant Kaur Grewal - was
cross-examined by Johanna Russell. She confirmed she had
waited 3 days before phoning Rana to inquire why the van was no
longer picking her up for work. Counsel referred the appellant to
her answers - at Discovery on July 5, 2001- where she said that
after being picked up for work one morning, Rana had informed her
- and 10-15 other workers - the work was finished. The appellant
agreed she had given that answer and that it was correct.
However, she had telephoned Rana - later - to inquire whether
there was more work available because she understood Rana had
informed the vanload of workers that "maybe this is your last day
or maybe there is another 3 or 4 days of work". She stated that
is why she stood on the street - with a packed lunch - for
another few days hoping the van would still pick her up for work.
None of her children worked for SRC and she is not related to
Amarjit Kaur Grewal, another appellant in these proceedings. She
identified her signature on the last page of notes taken during
an HRDC interview - tab 93 - on November 10, 1997. She agreed the
warning - about penalties for providing false information - was
interpreted by her son who remained with her throughout the
interview. She could not recall the circumstances relating to the
Questionnaire - tab 85 - signed by her and witnessed by Harjinder
Grewal on March 22, 1999. During 1996, the appellant lived in
Vancouver and was picked up and dropped off at her residence on
East 62 Avenue. Counsel pointed out to the appellant
that she had named Shindo and Harjit Gill as her only drivers but
at Q. 10 of the interview - tab 93 - she had described a 40-45
year old male - known to her only as Binder - as an occasional
driver of the red van while Shindo "drove the grey one". The
appellant stated she does not know any person named Binder and
reiterated her only van driver was Shindo. She explained the
confusion arose because there were other drivers employed by SRC
and one of them may have been someone named Binder. During the
interview - at Q. 7 - she described the work performed and her
son - Manjinder Singh Grewal - was interpreting her
answers from Punjabi to English so they could be recorded by the
interviewer. The response is that she "did not pick blueberries
or raspberries" and continued to describe her work in relation to
vegetables including a description of the types of vegetables and
the nature of tasks performed. The appellant stated the answer -
as recorded - is not correct because she did pick those berries
nor is the notation that she was not sure whether she had ever
worked in Chiliwack. The appellant stated her son arrived in
Canada in 1992 and attended ESL classes. He finished part of
Grade 12 in India and worked in construction and in a
family-owned grocery store so was able to speak English. The
appellant stated she cannot recall the details of the first
cheque - in the sum of $1,000 - she received from Shindo but was
sure she deposited it to her account at the Royal bank. The
cheque - tab 90 - in the sum of $2,000 was handed to her at
Shindo/Bant/Rana's house on the day when her wages were "settled
up" but Shindo asked her to hold on to the cheque "for a while"
because SRC did not have enough money in the TD account. In
answering Q. 18 during the HRDC interview, the appellant's
response is noted that she was given a cheque after the first two
weeks of work and the next cheque - after one to one and one-half
months - was in the sum of $2,500 and both had been cashed at the
employer's bank. The appellant agreed she had given that answer
but explained her first cheque - in the sum of $1,000 - was NSF
so she obtained a cheque later that included this amount. The
appellant denied telling the interviewer that she "got 4 or 5
cheques", attended at the TD bank to cash them but discovered
there was not sufficient money in the account. Then, she
continued to describe how she telephoned Rana to complain about
this default and how she would later be paid in cash by Rana at
his house. The appellant denied giving these answers and blamed
her son - Manjinder - whom she noted did not know enough English
at this time to act as her interpreter as his ability in that
language was only enough just "to get by". Continuing to answer
Q. 18 at said interview, the appellant's recorded explanations
include the notation that "the employer owed her $3,000 which was
unpaid after her last day of work" and that this debt was repaid
in "small amounts of cash". The appellant denied - emphatically -
providing that answer and stated she was "astonished" at what had
been written down. She stated she did not know HRDC wanted her to
produce bank statements because her son had never told her about
that request even though he was present throughout the interview,
- where he acted as her interpreter - lived in the same household
and was present in Court. The appellant was referred to a copy of
a bank statement - tab 94 - pertaining to an account at the Royal
Bank she assumed belonged to her grandson (Entries therein begin
on July 25, 1996 but do not support the proposition that the
$1,000 cheque was deposited to that account and subsequently
dishonoured due to lack of funds in the SRC account.). The
appellant stated she had no recollection of telling the HRDC
interviewer that she handed NSF cheques back to the employer but
agreed she may have provided that response. At Discovery - Q. 30
- the appellant stated she cashed the $2,000 cheque - tab 90 -
"right away" after she received it on July 7 or within a month of
that date. Counsel referred the appellant to the bank stamp
indicating the cheque was not cashed until November 4, 1996. In
answering questions in both Questionnaires - tab 85 and tab 102 -
concerning amounts and method of payment of wages, the responses
on both occasions were that the appellant was paid a total of
$3,500 by cheques and $4,340 in cash and that the cash was not
deposited in the bank. Counsel pointed out to the appellant that
if these amounts were correct, then the total net pay received by
her would be in the sum of $7,840, the same amount shown as her
gross earnings on the pay statement at tab 89. The appellant
agreed she did not receive that sum and did not accept she had
ever provided those responses to her son and/or daughter when
they assisted her to complete those Questionnaires. At Discovery,
the appellant explained she had taken her picking cards to Rana's
house where he did the tally and gave her the ROE that had
already been prepared. After the settling-up process was
concluded, she stated Rana handed her a $2,000 cheque and
requested her not to cash it right away. Counsel referred to the
appellant's earlier testimony during her direct examination that
she had received cash for the final payment. The appellant
replied that she and her daughter had taken the $2,000 cheque to
the TD branch and cashed it there. Concerning hours of work, the
appellant stated she worked 9 or 10 hours per day and was paid an
hourly rate whether picking berries or working on the vegetable
farms. She disagreed with the workers - including Gurmail Singh
Gill - who testified the basis for payment was per flat for
strawberries and raspberries, per pound for blueberries and
hourly only for vegetable work. The appellant's answer to Q. 19
of the HRDC interview - tab 93 - concerning hours of work each
day is noted as "worked 10 hours per day, normal" and
"mostly had Sundays off, sometimes a week day". The appellant
denied giving that answer and - in any event - did not agree it
was correct. She stated her daughter completed the application -
tab 98 - for UI benefits but at Q. 2 of the interview, the
appellant's answer - as noted - is that the application was
completed "with Shindo's help at Shindo's house". The appellant
agreed that answer may be correct. The appellant recalled the
zuccini crop lasting until the end of October. Counsel referred
her to the answer to Q. 42 of the Questionnaire - tab 102 - where
she described her "final clean-up" work after the berry season
had finished. The appellant stated the answer was not complete
because she continued working - at the Chinese Farm - with
vegetables, including lettuce, turnips and radishes.
AMARJIT KAUR GREWAL
[113] Amarjit Kaur Grewal testified in Punjabi and the
questions and answers and other aspects of the proceedings were
translated from English to Punjabi and Punjabi to English by
Russell Gill, interpreter. The appellant was represented by her
agent, Param Grewal (no relation), Manager of Progressive
Intercultural Community Services Society, referred to earlier in
these reasons as PICS. The respondent's Book of Documents
relevant to the appellant's appeal
- 2000-2325(EI) - is Exhibit R-35. The
Minister decided the appellant was employed in insurable
employment with SRC from June 9 to October 12, 1996 and had
insurable earnings in the sum of $4,000. The appellant accepts
the finding regarding the period of her employment but asserts
her insurable earnings are in the sum of $7,056. The Minister
relied on the following assumptions of fact as set forth in
paragraphs 4(j) to 4(n), inclusive, of the Reply to the
appellant's Notice of Appeal:
j) the
Appellant worked for the Payer during the Period as a farm
labourer;
k) the
Appellant was paid $4,000.00 by cheque dated October 12, 1996 and
negotiated on October 17, 1996;
l) the
Payer did not withhold any amounts on account of payroll
deductions and tax from the $4,000.00 remuneration paid to the
Appellant;
m) the Appellant was
not paid any other amounts on account of salary or wages by the
Payer other than the $4,000.00 admitted herein; and
n) the records
provided, for example, the T4 slip, the Employee Earnings Record
and the ROE were fabricated to give the appearance that the
Appellant was paid in excess of $4,000.00 by the Payer and these
records were a sham.
[114] The appellant stated she worked for SRC during the
relevant period and, upon being laid off, received an ROE - tab
86 - which she assumed was correct because she cannot read, write
nor speak English. Her first task on June 9 was to pick
strawberries and she continued for about 15 days until that
season was over and then picked raspberries for 15 or 16 days.
She stated she was paid $4 per flat for strawberries and on a
good day could pick 35 flats. However, during the last 4 or 5
days of the season when the berries were sparse, production fell
to 10 or 11 flats. The rate per flat for raspberries was
$4.50 and she could pick 30-35 flats per day during peak periods
of the season. After raspberry season ended, the appellant picked
blueberries for 2 to 2 1/2 months and was paid 24 cents per
pound. During the 15 to 18-day period - representing the main
part of the season - when berries were plentiful, the appellant
picked between 400 and 450 pounds per day. However, at the
beginning of the season and - again - at the end, daily
production ranged from a low volume of 150-200 pounds to a high
of 250-300 pounds depending on the nature of the crop.
The appellant stated she considers herself to be an excellent
picker and averaged at least 250 pounds per day during the course
of the entire blueberry season. The flats of strawberries and/or
raspberries were recorded and blueberries were counted by the
bucket - containing 25 pounds - and a record was made every 100
pounds of production. Each day, the driver handed out a picking
card and she retained her individual copy of each card until the
batch was handed in at Shindo's house prior to receiving her ROE.
The appellant stated work started between 7:00 a.m. and 7:30 a.m.
but she was picked up at her house at 5:45 a.m. and other workers
were already in the vehicle. Some days, the work lasted 12 hours
while others were shorter if it rained. She rarely took a day off
during her employment and following the end of blueberry season
in late September, she began working on the vegetable farm in
Richmond known to her as the Chinese Farm. She also worked on
another Richmond vegetable farm - owned by a "white
man" - where she worked on radishes and turnips. For this type of
work, she was paid the hourly rate of $7 and estimated that
during the entire season she worked between 1,100 and 1,200 hours
and earned approximately $7,000. She received a cheque - tab 89 -
in the sum of $4,000. The cheque - dated October 12, 1996 - was
endorsed by her and cashed at the TD bank on October 17, 1996.
During the season, the appellant estimated she received cash - 3
or 4 times - from Bant. The appellant was asked why she took the
cheque to the employer's bank (TD) rather than her own. She
replied "they sent us there". She described the final or
settling-up process as follows: first, she received a message
that her "weeks paper" was ready. Then, Harbhajan Singh Kang
drove her and 4 or 5 other workers to Rana's house where other
SRC workers were gathered. She was handed the $4,000 cheque - by
Shindo - and instructed to go - with Kang - to the
49th Avenue TD Bank and cash the cheque. Upon returning with
cash, Shindo would hand the appellant her ROE. The appellant and
4 or 5 other workers were driven - by Kang - to the bank and the
appellant cashed her cheque. She returned to Rana's house and
handed over the entire sum of $4,000. She stated she was very
upset but merely followed instructions. She assumed other workers
also handed back their pay but could not recall their names.
There had been no calculation of any amount properly due to her
for wages earned during her period of employment. On October 21,
1996, she went to the Surrey office where her daughter
- Sukhwinder Baran - helped her to complete the
application - tab 87 - for UI benefits. Her daughter had not
worked for SRC and the appellant observed "it was me who got
involved in all this mess". She stated she was able to retain
only $2,000 or - perhaps - as much as $2,500 of the money paid to
her for working during the relevant period but had re-paid the
sum of $4,000 representing proceeds of the cheque at tab 89. The
appellant stated she agreed to that payment in order to receive
her ROE and considered she was "powerless" to do otherwise. The
appellant stated she arrived in Canada on June 13, 1994 and
worked as a farm labourer in 1994 and 1995 and in years following
1996. Other than working for SRC, she had always been paid the
proper amount for her work except the wages were paid on an
irregular basis until the final payment at the end of the season.
The appellant agreed she told the HRDC interviewer that she had
been paid on an hourly basis for picking berries even though that
was incorrect. She stated she was merely following the
instructions of Bant and Shindo who told her not to mention using
any picking cards and to take the position her pay was always on
an hourly basis. The appellant stated she was worried that if she
told the truth she would lose her "weeks money" and would have to
repay money to the government already received in the form of
regular UI benefits. As for Rana's position with SRC, she stated
he worked in the fields and "no one ever thought he was the
boss". In an effort to reconstruct her earnings, the appellant
estimated she picked 350 flats of strawberries - in 15 days - and
was entitled to the sum of $1,400. In her view, she earned
another $1,400 from picking raspberries for 15 days and then
picked between 13,000 and 14,000 pounds of blueberries - at 24
cents per pound - in order to earn another amount ranging from
$3,120 to $3,360. Following the end of berry season, her hourly
work at the vegetable farms made up the balance of wages earned
in the course of her entire employment.
[115] The appellant - Amarjit Kaur Grewal - was
cross-examined by Johanna Russell. The appellant estimated
the end of the blueberry season usually arrives at the beginning
of September with a variance of a few days either way. She
recalled picking strawberries at Khakh Farms and at other farms
whose names she cannot remember and was driven to work in a van.
She picked raspberries at the Lidher Farm and blueberries at Gill
Farms. During this period, Harbhajan Singh Kang was her driver
and she rode to work with his wife - Harbans Kaur Kang - and with
Sukhwinder Kaur Toot and her husand, Swarn Singh Toot. The
appellant identified her signature on the last page of the
Questionnaire - tab 101 - that she believes was completed by her
daughter, although she cannot currently recall the circumstances
surrounding that particular document. However, she remembered
receiving instructions from Bant and Shindo that she should say
no picking cards were used and that her pay was $7 per hour. At
one point, she was driven - by Kang - to a meeting attended by
several other workers - who were and/or remain appellants in the
within proceedings - including Sukhwinder Kaur Toot,
Swarn Singh Toot, Karmjit Singh Johal, Gurcharan Kaur Johal,
Gurmail Singh Cheema, Bhagwant Kaur Grewal and
Jaswinder Kaur Cheema. The appellant stated she thought the
meeting was held in Kang's house. Counsel advised the appellant
that her answers to the Questionnaire - tab 101- were identical
to the other workers she had just named. The appellant stated she
and the other workers were "pressured" to answer questions in a
certain way and the Questionnaires were completed by Kang and
other "educated people" who were explaining the type of answers -
concerning their employment with SRC - that should be provided to
the government.
[116] The appellant - Amerjit Kaur Grewal- was
re-examined by her agent, Param Grewal. She reiterated her
lack of knowledge regarding the contents of the Questionnaire and
signed her name only because others at the meeting instructed her
to do so. Bant and Shindo were not at the meeting and the
appellant stated she considered Kang was the main spokesman who
directed the flow of the meeting. Her daughter did not attend the
meeting and the appellant has no specific recollection of
receiving the Questionnaire in its blank form. She acknowledges
she may have received it at her home and brought it to the
meeting or - perhaps - was provided with it at the meeting when
told to sign her name on the last page.
SHARDA KAUR JOSHI
[117] Sharda Kaur Joshi appeared on her own behalf. The
respondent's Book of Documents relevant to the appellant's appeal
- 2000-2144(EI) - is Exhibit R-36. The Minister decided the
appellant was not employed in insurable employment with SRC
during the period from June 9 to October 12, 1996. The
appellant's position is that she was so employed during that
period and had insurable earnings in the sum of $7,000. The
Minister relied on the following assumptions of fact as set forth
in paragraphs 3(h) to 3(m), inclusive, of the Reply to the
appellant's Notice of Appeal:
h) during the
Period the Appellant lived in Abbotsford, British Columbia;
i) the
Appellant was one of only two individuals who lived in the
Abbotsford area and to whom the Payer issued ROE's;
j) the
Appellant delivered a baby on March 28, 1996 and alleged that
during the Period her spouse and her father cared for the baby
during her absence;
k) the
Appellant did not perform any duties for the Payer during the
Period;
l) the
Appellant gave conflicting statements to authorities with respect
to the nature of the duties and the method and time of payment of
wages;
m) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record, the pay cheques in regard to the Appellant, were
fabricated to give the appearance that the Appellant worked for
and was paid by the Payer and these records were a sham.
[118] The appellant stated she did not feel confident
enough to testify only in English and requested the services of
Russell Gill to interpret on her behalf if she encountered
difficulty in comprehending the spoken word and - more likely -
understanding written English (The appellant relied on Russell
Gill to interpret on several occasions throughout her entire
testimony, including interpretation of written questions in
Questionnaires, notes of her HRDC interview and any material read
aloud - by counsel - such as answers given - by her - at
Discovery).
[119] The appellant lives in Abbotsford, B.C. and is
currently employed at a wire assembly plant. She came to Canada
in February, 1993 and worked - in Abbotsford - for a farm labour
contractor that summer. The following two seasons she worked for
another labour contractor and - in 1996 - was hired by SRC
through discussions between Bant's driver and her father who
later spoke to her husband who telephoned Bant. In India, she
attended - but did not finish - Grade 12. During her
education, she studied English - as a subject - since Grade 6.
She recalled riding to work with her father on her first day -
June 9 - and thereafter rode with her father or her husband to
the worksite, the location of which was ascertained by them the
previous evening. She weeded around plants for the first few days
and then picked strawberries at farms in Abbotsford and Chiliwack
owned by Khakh Farms. She understood her wage was $7 per hour.
Each morning she received a picking card from the farmer and the
card would be punched throughout the day as berries were
delivered. On a good day, the appellant estimated she picked
10-12 flats of strawberries and noted there is a slight overlap
between that season and the start of the subsequent raspberry
season. She recalled picking raspberries on two farms - in the
Abbotsford area - until the end of August. Then, she picked
blueberries at Gill Farms and at other farms in Abbotsford and -
perhaps - Aldergrove. The appellant stated that after the end of
berry season, she worked a few days on vegetable farms in
Richmond where she worked with radishes and zucchini. She stated
she received pay on an "as needed" basis during the berry season
and Bant handed her some cash on two or three occasions. She
used the money for rent and/or groceries. The appellant
identified her signature on the endorsement area of the copy of
the cheque - tab 89 - dated 10.9.1996
(September 9, 1996) in the sum of $4,000 that she cashed at the
TD bank at 49th Avenue and Fraser St. in Vancouver. She had a
joint account at TD in Abbotsford but elected to cash her cheque
at the employer's bank because she was about to embark on a
holiday to India and needed the cash for shopping. She stated she
received her ROE - tab 87 - dated October 15, 1996, at Rana's
house in Vancouver and he handed her the $4,000 cheque after
calculating the proper amount owed for the balance of her wages.
He also handed her about $300 in cash. She did not find this
method of payment unusual because even when she worked for other
labour contractors after 1996, she would obtain advances which
would be recorded and deducted later in order to arrive at the
proper amount of the final amount of wages due at the end of the
season. While working for SRC, the appellant stated she recorded
the number of hours worked - each day - throughout the course of
her employment. She stated "we were like slaves" and assumed
Bant's explanations were correct and she - and other workers -
were paid in full. The Employee Earnings Record - tab 88 -
prepared in the appellant's name shows gross earnings in the sum
of $7,000 and net pay in the sum of $6,075. The appellant stated
the signature on the "I Cash Money Give" purported cheque
- tab 90 - was not her own and did not understand
what purpose lay behind the creation of that document. The
appellant explained her usual method of going to work was to get
a ride with her husband - or father - to 0 Avenue where she was
picked up by Shindo and then driven to work - in a van - along
with other workers who were referred to as "uncle" or "auntie" in
accordance with Indian custom. On October 17, 1996, her husband
completed her application - tab 95 - for UI benefits at the
Abbotsford office. She was familiar with the procedure as a
result of collecting benefits following the 1994 and 1995 farming
seasons. She stated she wanted to make it clear that she had not
paid any money back to Bant and/or Shindo and/or Rana in order to
receive her ROE. She had considered it normal to receive the bulk
of her wages at the end of the season and accepted Bant's
explanation when he asked "how can I pay you when I have not been
paid by the farm owners?" The appellant stated she worked
directly for a farmer during the 1997 season and had never worked
on a farm in India. Upon arriving in Canada, she was in a state
of shock to discover she was required to pick berries in order to
earn a living and to live in a basement suite. She added that
this type of work and lifestyle did not conform with her
expectations as a result of information about Canada while living
in India. Her son was born on March 28, 1996 and her father and
sister-in-law cared for the child so she could work.
[120] The appellant - Sharda Kaur Joshi - was
cross-examined by Selena Sit. The appellant recounted her
instruction in English which included second and third level ESL
plus three months instruction at Fraser Valley College and
classes - once or twice a week - at the church. In 2001, she took
a Pest Technician Course while employed in a greenhouse.
Currently, she can read, write and speak English for everyday
purposes. She stated that - on reflection - she probably did not
receive her ROE the same day as the $4,000 cheque and is inclined
to believe - now - that she obtained it a week or so later when
she and her husband returned to Vancouver in order to do some
shopping. Further, she amended her recollection concerning the
receipt of $300 in cash and stated she thinks this amount was
paid to her when she received the ROE and not when she was handed
the $4,000 cheque. The appellant noted that the events occurred 8
years ago and she was attempting to recall the sequence of events
surrounding the last period of her employment. She stated her
best opinion is that because her last day of work was October 12
- according to her ROE - she must have received the
$4,000 cheque before her layoff because it was cashed on October
7. In her view, it is reasonable to assume that she worked
another week and was paid $300 in cash for those hours when she
received her ROE on October 15, 1996. She identified her
signature on the last page of the notes of Barb Long's
interview - tab 92 - dated May 26, 1997 and recalled her husband
- Sanjay Joshi - acted as interpreter. She stated that during
that three-hour interview, she attempted to give correct,
truthful answers. The Questionnaire - tab 82 - dated June 27,
1999, was completed by her husband as she provided answers to the
questions. Although she did not know the precise number of weeks
of employment needed to qualify for UI benefits in 1996, she was
familiar with seasonal work and the right to receive payments
following layoff. Regarding the first few days of employment
while waiting for the strawberries to ripen, the appellant
recalled she picked grass around plants and did some pruning.
Counsel read out the appellant's answer at Discovery on October
24, 2001 - to Q. 140 - concerning her first day of work when
she stated she picked raspberries "all day" and described how she
picked the berries and put them in a pail tied around her waist.
The appellant stated she did other work - including weeding -
that day. Counsel informed the appellant the Minister relied on
expert advice that raspberries were not ready for picking until
July 1. The appellant replied that this information may well be
correct for the general industry but there are some farms where
berries are picked early and sold in small quantities at a high
price. She confirmed her earlier testimony that she picked
strawberries - first - at some point in June and during final
clean-up of that crop, the raspberries were ready to be picked.
Then, just as the raspberry season is coming to a close,
blueberries ripen and picking begins. Counsel referred the
appellant to the question within the Questionnaire - tab 82 -
concerning the location of farms where she had allegedly worked.
The written response therein is "Do not remember. HRDC has all
the records". The appellant agreed that - at this time - she had
not known the names of the farms where she worked because she was
dropped off by the van without being told any further details.
However, in preparing for her Discovery, she telephoned various
people in order to determine the locations - and identity - of
farms where she worked and requested assistance from her husband
to make these inquiries. In addition, even after living in
Abbotsford for more than 10 years, the appellant acknowledged she
did not have a good grasp of the streets and locations. The
appellant stated her mother worked with her at Lidhran Farms
along with workers supplied by other labour contractors. At
Discovery - p. 17, line 208 - the appellant stated she worked at
Mike's Farm. In her application - tab 95 - for UI benefits, there
is no mention of any work done in Richmond and the only work
locations listed are Abbotsford, Mission and Aldergrove. Counsel
pointed out to the appellant that during the HRDC interview - tab
92 - in answering Q. 22, she mentioned only Aldergrove and
Abbotsford as work locations and, in describing her duties
throughout her period of employment - in response to Q. 7 - did
not make any reference to working with vegetables. Further, there
was a reference in the Questionniare - tab 82 - to working in a
greenhouse whereas the answer to Q. 8 of the Questionnaire -
tab 92 - was that she had "always worked outside
- never inside". The appellant explained her husband
had driven her to work in Richmond and she was driven in a van to
the other work locations. She agreed she had never performed any
greenhouse work for SRC and that the answer provided was wrong.
She recalled working 5, 6 or 7 days a week while picking berries
and knew SRC paid 8 hours per day regardless of the actual time
worked which did not include travel time. The appellant agreed
she used picking cards and that the number of flats or pounds
picked by her were recorded. She retained her copy of the card
and took it home with her where it was thrown into a box together
with other cards, including some from previous seasons. She
stated she did not use the cards to calculate any wages because
she was paid on an hourly basis, although she agreed it would be
reasonable for some workers to be paid per flat or by the pound
if they were fast pickers. She considered herself to be a
competent picker and estimated she could have earned more on a
piecework basis than by the hour but that choice had never been
offered by SRC. In answering Q. 18 of the Questionnaire - tab 92
- the appellant stated she had been paid "every 2 weeks, mostly
by cash" but had also received cheques. The written response to
Q. 28 about where she cashed the $4,000 cheque - tab 89 - was
that it had been negotiated at the TD bank on the corner of
Gladwin and South Fraser Way but could not recall the account
number. The appellant replied that she had only received cash two
or three times in 18 weeks and agreed she had received only
one cheque. She explained that even though Bant did not
require her to sign a receipt when handing her cash, he made a
notation in his diary and she kept her own record once she
returned home. She recalled receiving $600 or $700 in cash on one
occasion and smaller sums thereafter totalling another $1,000.
Counsel referred the appellant to photocopies of two receipts -
tab 111 - bearing dates of July 27, 1996 and August 1, 1996,
respectively, each purporting to record a $1,000 transaction with
the notation "Cash Money Give" and the name Manjit Singh Rana
appearing on the "Received From" line. The handwritten name -
Sharda Joshi - appears on the bottom line of each receipt. The
appellant stated she did not recognize those signatures to be her
own. Counsel referred the appellant to the notes - tab 110 - of
Barb Long, an HRDC employee, that those receipts had been brought
to the HRDC office by the appellant herself in an attempt to
prove she had been paid in cash by her employer. The appellant
stated she had no recollection of providing those receipts but
added the signatures on those receipts - in comparison to her own
regular signature - were "pretty close". At Discovery - Q. 349 -
the appellant stated she had some receipts and believed she had
provided photocopies. The appellant estimated she received a
total of $6,300 from SRC even though her net pay - according to
tab 88 - was only $6,075. Counsel read portions of her Discovery
concerning the receipt of her final wages at Bant's house,
including statements that she had only been there once and that
Bant had done the accounting to determine how much she was owed.
Further, the appellant stated - at Discovery - that the cheque
had been cashed the same day. The appellant replied she thought -
perhaps - her husband had returned - a few days later - to Bant's
house in order to obtain the ROE, pay statement and the final
wage payment of $300 representing her last week of work.
Concerning her response to Q. 9 during the interview
- tab 92 - that she was always picked up at her
Abbotsford residence in a van driven by Bant, the appellant
explained that it was Shindo who picked her up at Abbotsford and
returned her to Lidhran Farms where her father worked and that
she rode home with him. Counsel advised the appellant that Shindo
had informed HRDC that she did not drive a van when working out
in Abbotsford but - personally - rode the bus - driven
by Harjit Gill - along with other workers. The appellant
reiterated that Shindo had driven her to Abbotsford and - later
in the season - to Richmond. Counsel referred to the SRC employee
list - Exhibit R-1, tab 5 - which indicated only two workers were
living in Abbotsford, namely the appellant and another person who
later admitted she had never worked for SRC in 1996. As a result,
the appellant was the only SRC worker living in that
municipality. The appellant replied that she had ridden to work
with either her husband or father, 90% of the time. Counsel
referred the appellant to her answer to Q. 10 at the May 26,
1997, HRDC interview - tab 92 - concerning transportation to
work. The notation is that the appellant initially stated she was
picked up by two vans operated by two drivers but corrected it -
immediately - to one van driven by two different drivers whom she
described as Bant and another guy whose name she did not know. In
the Questionnaire - tab 82 - the drivers are identified as Bant
and another person she did not know. The two vans in which she
apparently rode to work are described as "sometimes white,
sometimes brown". Counsel pointed out the appellant had never
mentioned Shindo as her driver. The appellant stated Shindo had
driven her but the male driver - other than Bant - had only
driven her to work "less than five times". At Discovery - Q. 112
- the appellant stated Bant drove her to work on her first day
but during her testimony in Court she stated she rode to work
with her husband. She confirmed her assertion that her husband
had driven her to work that first day and added that when she was
driven to work by a SRC driver, she always rode in a white
van.
JATINDER KAUR LIDHRAN
[121] The appellant appeared on her own behalf. She
testified in English but also speaks Punjabi. The respondent's
Book of Exhibits relevant to the appellant's appeal -
2000-2332(EI) - is Exhibit R-37. The Minister decided the
appellant was not employed in insurable employment with SRC
during the period from August 25 to October 12, 1996. The
appellant's position is that she was so employed during that
period and had insurable earnings in the sum of $2,415 as stated
on her ROE at tab 89. The Minister relied on the following
assumptions of fact as set forth in paragraphs 5(j) to 5(n) of
the Reply to the appellant's Notice of Appeal:
j) the
Appellant provided conflicting statements to authorities with
respect to the type of duties performed, the locations of the
farms and the transportation method;
k) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record and the pay cheque, in regards to the Appellant,
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
l) the
Appellant required 26 weeks of insurable employment in order to
qualify for unemployment/employment insurance benefits
("Benefits");
m) the Appellant had
a ROE from a previous employer for 20 weeks of insurable
employment and needed the ROE from the Payer in order to qualify
for Benefits; and
n) the
Appellant did not perform any duties for the Payer during the
Period.
[122] The appellant testified she is employed as a Civil
Aviation Assistant. In 1996, she had been employed as a farm
labourer in Abbotsford at Lidhran Farms, a business owned and
operated by her father. She picked raspberries until the season
was over just before the last week of August. Her father used a
picking machine and also hired local workers. She stated she
learned Rana was hiring workers and he came to her house in
Surrey to discuss the terms of her employment, should she choose
to accept. The pay was $7 per hour - perhaps $8 later - and the
job entailed working on vegetable farms in Richmond. On her
father's farm, the appellant had done pruning, fertilizing and
picked berries but had no experience working with vegetable
crops. The appellant stated she started work the day after Rana's
visit and - according to his instructions - waited outside her
home - at 5:00 a.m. - until a white van arrived to pick her up.
The female driver inquired whether she was Jatinder and the
appellant boarded the van and was driven to a farm in Richmond
owned by a Chinese man. On her first day, she picked blueberries,
placed them in a bucket and also assisted in weighing berries.
The pickers brought buckets to the scale and she weighed them and
punched the appropriate number on the picking card. The usual
weight was either 20 pounds or 30 pounds depending on the bucket.
The appellant stated she was picked up by the same van the
following day and there were about 20 people already inside the
vehicle. That day, they went to another vegetable farm in
Richmond where she worked inside a structure that seemed to be
either a barn or shed. Inside the shed, there was a large tub
hooked up to a supply of water used to wash the vegetables which
included turnips, zucchini and daikon. Some workers washed the
vegetables and others packed the produce into cardboard boxes of
different sizes with the most common dimension similiar to the
typical blue, curbside recycling box. The appellant stated she
did not know the destination of the worksite until arrival or
whether she would be working inside or outside. While working
outside, she washed vegetables in a tub but did not do any
picking or cutting in the fields. The appellant stated she did
not keep track of hours worked but recalled she arrived home
between 6:00 p.m and 6:30 p.m. and rode in the same white
van driven by a female person. One day, this driver informed her
the work was coming to an end - soon - and October 12 would be
her last day. The appellant stated she did not question the
driver and did not work the following day. A few days later she
received her ROE - tab 89 - with the date September 15, 1996
thereon, which she did not notice at that time. She identified a
cheque - tab 90 - dated 9.9.1996 (September 9, 1996) in the sum
of $2,500 payable to Jatinder Kaur Sidhu. The appellant explained
that Sidhu was her married name at that time. Because she did not
have her own bank account, she deposited the cheque to her
husband's account at the Kingsway branch of the VanCity Savings
and Credit Union on October 18, 1996. The appellant stated she
could not recall whether she recived the cheque together with the
ROE but confirmed it had arrived through the mail. During the
period prior to her layoff, the appellant stated she had not
needed to ask SRC for some wages because her father had paid her
a lump sum - at the end of the raspberry season - for her work
during the early part of the summer. The appellant stated this
particular period of her life was extremely stressful as she was
very unhappy with her situation within an arranged marriage. Her
husband took the $6,000 in wages she had earned by working for
her father at Lidhran Farms. In January, 1996, she gave birth to
a son and her brother and sister cared for the child while she
worked at Lidhran Farms and - later - when working at Richmond,
her husband cared for the boy. She stated she hoped to keep the
money earned from working for SRC but it did not turn out that
way and she had to deposit the SRC cheque to her husband's
account. On October 16, 1996, she completed an application - tab
92 - for UI benefits at the HRDC Surrey office. During the course
of her employment with SRC, the appellant stated she did not mix
with other workers and thought she had worked every day without a
break. She stated "the only reason I worked was to get out of the
house". She arrived in Canada - at age 5 - and after completing
Grade 12, attended college where she took various courses. Later,
she began working for the Federal Department of Transport. In
June, 1997 - soon after her daughter was born - she was called in
for an interview - tab 95 - at the HRDC Surrey office. She was
questioned by Ted Bowerman who explained the nature of the
investigation being conducted concerning SRC and various workers.
The appellant stated she had never seen the Employee Earnings
Record - tab 91 - showing she had gross pay of $2,415 and net pay
in the sum of $2,098. Later, she received a T4 slip which she
used to file her 1996 income tax return. Following her layoff
from SRC, the appellant went to the Youth Employment Centre
nearly every day, even after her daughter was born. Later, she
was hired to work - as an Employment Counsellor - at that Centre.
The appellant stated she had never applied for UI benefits before
October, 1996. She stated that if she realized she needed extra
work in order to qualify for UI benefits, it would have been
easier just to "beg" her father for some additional work on his
own 40-acre farm rather than work for a "complete stranger".
[123] The appellant - Jatinder Kaur Lidhran - was
cross-examined by Selena Sit. She stated she attended Fraser
Valley College for one year. Her first paying job was at her
father's farm, although she had done farm work - on a volunteer
basis - at farms owned by family members. In 1996, raspberries
were the only crop on Lidhran Farms. She weighed flats and
performed other tasks and had not been aware that her father
hired some SRC workers for whom he had issued cheques totalling
$17,000 (Exhibit R-1, tab 28). The appellant stated many pickers
were local people but recalled a yellow school bus bringing
workers to the farm. At the end of the raspberry season, the
appellant stated she did not know she required another 6 weeks to
qualify for UI benefits. She stated she had not repaid any of her
wages to Bant and had no reason to believe her husband had done
so. She had never been to Bant's house and did not know where he
lived. She never received any breakdown or statement of her pay
and did not know why the cheque was in the sum of $2,500. She
reiterated she did not know the names of co-workers or her
supervisors - if any - and stated that was the reason she had
answered "No" at Q. 14 of the Questionnaire - tab 100 - when
asked about the name of her supervisor. She explained no person
seemded to act as a supervisor nor was anyone announced - to the
workers - as fulfilling that role. She stated the reason for not
keeping track of hours is that every day was "pretty much the
same" and assumed someone at SRC was recording the time worked.
She recalled speaking on the telephone with Janet Mah who
recorded in her notes - tab 83 - that the appellant had stated
"there were breaks in the period she worked, 1 to 2 days here and
there, but did not work on weekends". A further note indicated
the appellant's working hours were between 8:00 a.m. and 4:00
p.m. The appellant stated she did not recall providing that
information to Mah because there was no scheduled day off and she
did not have a recollection of the driver announcing the number
of hours worked on a particular day. She did not remember the
division of work between the two farms in Richmond nor the amount
of time worked inside as opposed to outside. During the interview
- tab 95 - with Bowerman on July 8, 1997, her response -
according to Bowerman's notes - is that she confirmed - at p. 3 -
that all her work was done inside a shed. On July 8, 1997, the
appellant completed a Statutory Declaration - tab 96 -
in which she described being taken to a farm in Richmond where
she cleaned and packed vegetables from 6:00 a.m. to various hours
in the evening. She explained she had not mentioned picking
blueberries in Richmond because that work had lasted only one
day. She confirmed that she had only worked at one farm during a
particular day but had worked - on other days - at other farms in
Richmond, one of which she identified in the Questionnaire - tab
85 - as #3 Richmond Road. She recalled both farms seemed to
be fairly close to each other and did not pay much attention to
where she was working because her home life was in such a state
that she was waking up, working and "getting through the days".
At Q. 3 of the Questionnaire - tab 100 - the appellant described
her secondary duties as "sometimes, picked, weighed and packed
blueberries". She stated she could not recall if the blueberry
work was done on the same farm where vegetables were grown. In
completing her application - tab 92 - for UI benefits she
mentioned - at box 16 - working with vegetables in addition to
raspberry and blueberry picking. During the interview with
Bowerman, the appellant was unable to identify a photograph of
Rana - Exhibit R-20, tab 97 - and informed him she had never seen
that person before. The appellant stated the man who came to her
house to discuss her employment had identified himself as Manjit
Rana. She had never seen Bant or even heard his name during her
employment with SRC. The appellant described the crowded
conditions of the van in which she rode to work and noted there
was "no room to even move". She crawled in the back door and
found a place to sit during the drive to work. As for the obvious
error in the date - September 15, 1996 - of her ROE,
the appellant stated she thought Bowerman had pointed that out to
her. As for the work performed, it was repetitive and the
vegetables were in bins and a bucket and hose were provided to
wash them. There was a small shed outside but less workers were
required outside than inside the larger structure when the work
was performed there. During her employment, she was never told to
work in a field. The appellant stated she was upset because she
had worked hard and the government now wanted her to repay a
substantial sum by taking the position she had not been entitled
to any UI benefits.
[124] (The appellant advised the Court she would not be
calling any witnesses or presenting further evidence. She was
advised of her right to cross-examine those witnesses produced by
the agent(s) for other appellants as well as those called by
counsel for the respondent and that this phase of the proceedings
would be reached within a few days.)
SUKHWINDER KAUR HUNDAL
[125] Sukhwinder Kaur Hundal appeared on her own behalf
and testified in Punjabi and the questions and answers and other
aspects of the proceedings were translated from English to
Punjabi and Punjabi to English by Russell Gill, interpreter. The
respondent's Book of Documents relevant to the appellant's appeal
- 2000-2328(EI) - is Exhibit R-38. The Minister decided the
appellant was not employed in insurable emloyment with SRC during
the period from November 17 to December 28, 1996. The appellant's
position is that she was so employed during said period and had
insurable earnings in the sum of $2,282 as shown on her ROE at
tab 88. The Minister relied on the following assumptions of fact
as set forth in paragraphs 5(j) to 5(o), inclusive, of the Reply
to the appellant's Notice of Appeal:
j) the
Appellant did not perform any duties for the Payer during the
Period;
k) the records
provided, for example, the ROE, the T4 slip, the employee
earnings record and the pay cheques in regards to the Appellant
were fabricated to give the appearance that the Appellant worked
for and was paid by the Payer and these records were a sham;
l) the
Appellant provided conflicting statement to authorities with
respect to the type of work, the locations of the farms, the
method of pay, the identity of the individuals and the hours and
days of work;
m) the Appellant
required 26 weeks of insurable employment to qualify for
unemployment/employment insurance benefits
("Benefits");
n) the
Appellant's previous employment consisted of only 20 weeks of
insurable employment and the Appellant needed the 6 weeks
reflected in the ROE from the Payer in order to qualify for
Benefits; and
o) the
Appellant was not employed by the Payer in insurable
employment.
[126] The appellant testified she arrived in Canada - on
July 1, 1996 - with her husband and three daughters. Later, she
learned - through a friend - SRC was hiring farm workers. She had
worked on the family farm in India and was hired - at $7 per hour
- by Rana who drove her to work on her first day. She was not
familiar with the area but went to a farm where she picked
various vegetables - including turnips, radishes and
sprouts - and placed them in boxes. Thereafter, she rode to work
- with 10 to 15 other workers - in a van driven by Shindo. Rana
would be at the worksite where he picked vegetables in the fields
and gave instructions to other workers. She recalled working 7 or
8 hours a day at different farms with a day off - on occasion -
only if it was too cold to work because the vegetables were
washed outside and the water would freeze. Earlier in the season,
the appellant worked a period of 20 weeks for Canwest Farms
during which she picked blueberries until the first few days in
October. Later, she worked packing berries into small boxes and
was finally laid off on November 15. At Canwest Farms, she
received cash advances and received a final wage settlement when
she was laid off. As for her SRC employment, she stated she was
laid off and received her ROE - tab 88 - from Rana on December
31, 1996 while working in the field. Rana paid her cash while
they were standing outside the van and she stated she had not
received any other wage payments earlier although Rana kept track
of her hours. She accepted the payment from Rana on the basis the
amount was correct and - later - her daughter calculated the
wages due and was satisified with the sum received. The appellant
was referred to the "I Cash Money Give" purported cheque - tab 90
- in the sum of $2,148 payable to Sukhwinder K. Hundal
and to a signature on the lower part of the photocopied page. The
appellant stated she could sign her own name - in English - but
that the writing "S.K. Hundal" was not her signature. On January
3, 1997, she applied for UI benefits - tab 96 - and was assisted
by Baljinder Uppal. The appellant stated she started working for
Canwest Farms on July 2, 1996, the day after arriving in Canada
and had never picked blueberrries before. In 1996, she was 45 and
felt compelled to work at that job because she and her husband
had not brought much money to Canada and they needed to support
the family. In India, she and her husband owned a 40-acre farm
and hired workers. The value of that land - in 1996 - was
approximately $15,000 Canadian per acre but they leased the farm
to their son rather than sell it. Compared to her situation in
Canada, she considered herself to have been well off in India.
However, while talking with other SRC workers she heard about a
program whereby the federal government would send money to people
who became unemployed at the end of the season. Prior to 1996,
she had never been employed and was not able to work afterwards
due to ill health. In 1996, her daughters were in Grade 7 and
Grade 4 and her eldest daughter - their sponsor - was married and
living in Port Coquitlam. The appellant's husband picked berries
and then found a job as a janitor for Skytrain where he is still
employed. While working at the vegetable farms, the
appellant stated she sometimes rode to work with the same people
but at other times different workers were in the van. Most of
them seemed to be between 40 and 50 years of age and were divided
equally between men and women. The appellant stated Shindo drove
her to work from the second day of her employment until the last
day. After dropping off the workers at a farm, Shindo would leave
and return at quitting time but Rana - usually - remained and
worked in the fields. On rare occasions, the appellant saw Bant
but he did not ride in the van driven by Shindo. She stated Bant
did not work in the fields and seemed to "just look around and
then leave".
[127] The appellant - Sukhwinder Kaur Hundal - was
cross-examined by Selena Sit. The appellant stated she
worked at Canwest until the berry work was done and then found
employment at SRC. Counsel informed the appellant that as a new
entrant to the labour force she required 26 weeks of employment
in order to qualify for benefits and that her 20 weeks at Canwest
and 6 alleged weeks of work at SRC was exactly the amount of time
she needed. The appellant recalled attending an interview - tab
94 - on May 26, 1997, at an HRDC office where she responded to
questions from Mike Taylor. During the interview, her niece
- Harjit Kaur Uppal - interpreted on her
behalf. The appellant identified her signature on the
Questionnaire - tab 85 - dated March 24, 1999, but could not
recall who filled out the form. The notes - tab 82 - made by
Janet Mah of a telephone discussion between Mah and Harjit Kaur
Uppal concerning the appellant's employment with SRC indicate
there was a subsequent visit to Mah's office where the appellant
was accompanied by her daughter and provided an authorization -
tab 84 - for Harjit Kaur Uppal to deal with Revenue Canada
on her behalf. The appellant was referred to an undated, unsigned
Questionnaire - tab 98 - that mentioned - at Q.2 - the worker had
found out about the SRC job from "my husband's friend,
Pritam Bhandwa". Subsequent responses indicate the person
who was the subject of the Questionnaire had been hired by Rana
and worked "in different fields, different places". The appellant
agreed the answers therein were provided by her but could not
recall the circumstances surrounding the completion of the form
but considered it may have been filled out at a meeting attended
by other SRC workers. Counsel pointed out that the answer - to Q.
38 - regarding identity of the appellant's co-workers
included Harbans Kaur Kang who had gone to India on October 24,
1996. The appellant repeated she did not know who filled out the
form but agreed that answer was wrong. Regarding the cash paid to
her - by Rana - on her last day, the appellant stated
she could not remember the amount but took the money home where
it was counted. She was certain the cash received was less than
$5,000. Counsel referred the appellant to her answer - to Q 18 -
at her interview - tab 94 - where she apparently told the
interviewer she was given "only one cheque, at the end of the six
weeks when all the work was done." The answer continues to
explain that the appellant went with Baljinder Uppal to pick up
the cheque - at the home of the owner of SRC - and, although she
did not know the amount of said cheque, had been told - by Uppal
- it was in the sum of $800. In answering the previous question,
the answer - as noted - is that she was "paid by cheque." The
answer to Q. 29 about whether she cashed or deposited her SRC
cheque was noted as "she signed cheque and gave it to her
husband, Kamaljit Hundal." The response to Q. 33 is noted as
"no cash earnings - paid by cheque". As to the type of work
performed during her employment, the interviewer noted the
appellant "picked sprouts - that's all she did". The appellant
recalled attending at Discovery on August 28, 2001 and stated she
had told the truth when answering questions. Counsel read to the
appellant questions and answers - Qs. 67-78
- in which she stated she had worked with sprouts, "little round
sprouts", but was not picking them, only "cut them, shake them
and fill up buckets". The appellant - at Discovery - confirmed
she had not picked any other vegetable on her first day of work
and had spent the 6 weeks of her employment working with Brussels
sprouts and when that question was put to her again, confirmed
she had only worked at that one task. Counsel referrred to the
notes -- tab 82 - of Janet Mah concerning the
face-to-face interview - on July 14, 1999 - when the appellant -
through her niece - described the sprouts and stated she did no
work during the period of her employment except in relation to
Brussels sprouts. Counsel advised the appellant no other SRC
worker had mentioned working with sprouts and that the Minister
relied on an agricultural expert's opinion that all Brussels
sprout crops were finished by November 15, 1996 because it was
too cold in November and December to harvest. The appellant
agreed she did not work on days when it was too cold. Counsel
referred the appellant to her answer to Q. 10 at the interview -
tab 94 - that she had been driven to work " in two vans, one
green and one cream-coloured - same person, a man, regardless of
van". Counsel also reminded the appellant that at Discovery - Q.
60 - she said Rana had always driven her to work. The appellant
replied she was not able to explain the inconsistencies. Counsel
suggested to the appellant she had changed her story because she
now realized all male drivers had been laid off by November 17,
1996 and Shindo - according to her own ROE - was laid
off on October 26. The appellant replied that Shindo had driven
her to work throughout November until her last day.
[128] (The appellant advised the Court she would not be
calling any witnesses or presenting further evidence. She was
advised of her right to cross-examine those witnesses produced by
the agent(s) for other appellants as well as those called by
counsel for the respondent and that this phase of the proceedings
would be reached within a few days.)
[129] Satnam Singh Toot (Satnam Toot) was called to the
stand by Darshen Narang, agent for the appellant, Sukhwinder Kaur
Toot (2000-2342(EI)). He testified he is the son of Sukhwinder
Kaur Toot. During 1996, his father - Swarn Singh Toot - also
worked for SRC but is not party to the within appeals. Satnam
Toot stated he and his family arrived in Canada in September,
1995. He finished Grade 10 in India and continued with high
school in Canada and attended ESL classes. Although he studied
English for 6 years while living in India, he could not read a
newspaper and required ongoing ESL instruction - including night
classes - in order to improve his ability to speak, read and
write English. By 1999, he was able to function in English at a
level sufficient to permit him to study criminology at Douglas
College in 2000 and 2001. He stated his mother could not speak
English, never attended school and had worked only on the family
farm prior to coming to Canada. During 1996, he was living with
his parents and stated his recollection is that his mother began
working for SRC in mid-April, 1996 - before his father started -
and that they were both laid off the same day. He recalled his
mother continued working until mid-October and because his
family is related - distantly - to
Harbhajan Singh Kang, they learned that work was
available with SRC. Satnam Toot stated he recalled his
mother returning home and talking about her work. He understood
she was earning $7 per hour and - initially - worked hoeing and
pulling grass and then picked strawberries, raspberries and
blueberries. She brought some home for the family and later in
the season, returned home with cucumbers, long white radishes and
hot green peppers. He saw a van stop in front of the house that
took his mother to work early in the morning. Usually, the van
was driven by Harbhajan Singh Kang but there was also another
male driver. His father began working for SRC in July and rode to
work in the same van. He stated he knew the function of a picking
card but never saw any of them in his family home. He recalled
his mother had taken off some days on an irregular basis -
perhaps 7 days in total - during her employment with SRC.
Her working hours were recorded - by her husband - on a piece of
paper. Satnam Toot stated he never met Bant or Shindo or Rana. He
recalled occasions when his parents returned home with some money
"a few times" but Indian culture did not permit him to question
them about their work. His mother had received an Appointment for
Interview - tab 92 - and he went with her to an HRDC office where
an interview - Exhibit R-31, tab 92 - was conducted on
August 20, 1997 (Subsequent references to tabs will
- unless otherwise specified - be located within that
exhibit). He recalled producing his mother's Indian passport and
her SIN card. He acted as her interpreter and recalled she
identified her signature on her UI application at tabs 88 and 99.
He informed the interviewer - Janice Morrow - that his mother was
incapable of completing that form and that it had been filled out
by his sister. Satnam Toot stated he had never been at an
interview of that nature before and recalled it lasted about two
hours. Throughout, he acted only as an interpreter for his mother
and did not answer any questions on his own. He stated his mother
knew the interview was about her work at SRC but did not know
HRDC was investigating that company. He prepared - in English - a
Statutory Declaration - tab 99 - which his mother signed. He
stated the purpose and effect of that solemn declaration was not
explained to him and while he did not recall any specific warning
about providing false answers, recalled his mother had been asked
if she was telling the truth and that she agreed she had been
truthful in her responses. Satnam Toot recalled Janice Morrow had
read out that portion of the Statutory Declaration advising it
was being provided as though it was under oath pursuant to the
Canada Evidence Act but - at that time - he did not
understand the significance of the process in relation to that
document. He stated he prepared the Statutory Declaration by
summarizing the information provided by his mother and wrote
therein that she worked from April to September, 1996, at $7 per
hour, received a cheque - in the sum of $5,000 - which she cashed
and handed the money to her husband. Satnam Toot stated that
after completing the Statutory Declaration - in English - he told
his mother - in Punjabi - what he had written but did not explain
the pre-printed portion at the bottom of the form about that
document being a solemn declaration. Although his mother was
satisfied with his written description of her work, she was
unable to identify a specific month of the year - August or
September, for example - as such, in accordance with the English
calendar and this inability was communicated to Janice Morrow in
reference to his mother's statement that she had performed a
certain task in either the "8th or 9th month" but
was not certain. According to Satnam Toot, Janice Morrow's
response was "pick one" and he chose the month of September. He
stated the notes - tab 96 - were an accurate summary of his
conversation with Janice Morrow - the following day - at the HRDC
office where he provided a bank book - so it it could be
photocopied - and advised Morrow that his mother cashed the
$5,000 SRC cheque at the employer's bank and gave the money to
her husband who passed it on to a cousin from whom they had
borrowed money previously. He recalled attending another HRDC
interview - tab 101 - on March 11, 1998, where his mother was
interviewed by Gail Buckland. Satnam Toot was referred to the
$5,000 cheque - tab 90 - and stated he had not
seen that document prior to that moment. He recalled having seen
the ROE - tab 87 - in their residence a couple of days after his
mother's work had finished. From family conversation, he
understood his mother and sister had gone to the contractor's
residence in order to obtain that paper. Satnam Toot stated there
was a male person interpreting on behalf of HRDC but
- in his opinion - that interpreter was not performing
at a high level and, even though his own ability to speak English
was limited in 1998, believed he could have done a better job in
interpreting - into English - the conversation between Gail
Buckland and his mother. He stated he complained to Buckland but
she told him to cease interrupting the interview or he would be
removed from the room. As a further example, he stated his mother
was shown certain photocopies of photographs and the quality of
reproduction was very poor. He was referred to a series of copies
of photographs in Exhibit R-25, tab 97 and commented they were of
better quality than the ones shown to his mother at the HRDC
interview because "at least you can see their faces". He stated
his mother had poor eyesight and when asked whether she had ever
seen a person in a copy of a photograph, if she said she could
not recognize that person, the answer was recorded - by Buckland
- as "No" and a reply by his mother, " I don't remember" was
written down as "No". Satnam Toot stated his mother was informed
by the male interpreter "they know everything, why don't you
admit you paid back the money - you could be deported" and added
the interpreter was not interpreting any words spoken by Buckland
prior to that warning but seemed to be issuing that threat
voluntarily. He identified the photocopies of the pages from the
bank book - tab 98 - and stated the account was jointly operated
by his sister, mother and father and that he also used the
account to make deposits and withdrawals because it was a family
account. He stated he explained to Buckland that his father
controlled the money within the household and that his mother was
very forgetful about details such as start and end days of her
employment. As noted - tab 102 - he called HRDC to advise his
parents were not available for an interview until March 3, 1998,
because they were in India. He stated there had been a delay in
obtaining certain documentation from the Indian passport office.
They had gone to India for the wedding of their daughter which
was an expensive celebration costing the equivalent of $15,000
Canadian and preparations had begun in 1996 in accordance with
Indian custom that dictates "when a daughter is born,
preparations for the wedding begin". Initially, his sister
planned to be married in Canada during 1996 but the putative
groom - discovered by the matchmaker - turned out to be less than
expected and the wedding was cancelled. As a result, efforts were
undertaken to find a replacement and his sister was married - in
1998 - but had to travel to India for the ceremony. Satnam Toot
was referred to the Questionnaires - tab 82 and tab 108 - and
stated he had not completed either of those forms but signed as a
witness to his mother's signature on the Questionnaire at tab 82.
His best recollection was that the Questionnaire - tab 108 - was
filled out at the PICS office by a Punjabi-speaking staff member
or volunteer. In the Questionnaire - tab 82 - dated March 16,
1999, Sukhwinder Kaur Toot's period of employment is stated as
"April 1996 - Sep 1996". He recalled attending at PICS in Surrey
and understood it to be a community-based organization which
assisted people in dealing with various aspects of their life and
work. He did not recall any other SRC workers present at that
time but he informed the receptionist of the purpose of their
visit and soon thereafter a Punjabi-speaking person undertook the
process of completing the Questionnaire at tab 108. On occasion,
Satnam Toot provided certain answers such as within Q.4 when
there was a description of a farm "close to a golf course". He
explained his mother had told him about where the work site was
located but would not know the words "golf course" or the meaning
of that term. He recalled the PICS staff member had not pressed
his mother for details of her employment and had not asked her to
provide an account of the work performed each month during the
course of her employment, as required by Q. 14. The effect of the
answers to Qs. 32-35, inclusive, is that Sukhwinder Kaur
Toot was paid a $5,000 cheque - by Rana - at the end of the
season. Satnam Toot stated his mother was a very forgetful person
and this condition - perhaps made worse by her illiteracy
according to the theory of one physician - had persisted for at
least 10 years.
[130] The witness - Satnam Singh Toot - was
cross-examined by Johanna Russell. He was referred to several
answers in the Questionnaire - Exhibit R-31, tab 108 - that no
picking cards were ever used by his mother, Sukhwinder Kaur Toot.
He agreed he had been present at the HRDC interview with his
father when Gail Buckland - the same person who interviewed
his mother - asked certain questions and made notes - Exhibit
R-4, tab 112 - of the responses. According to her notes, Swarn
Singh Toot - at p. 4 - agreed picking cards were used and that he
took the cards home at night or - perhaps - the contractor "got
it" but in any event the cards were handed to the contractor at
time of final payment. As for the Questionnaire - Exhibit R-4,
tab 95 - pertaining to his father's employment with SRC, counsel
referred the witness to several answers which were identical to
those contained in his mother's Questionnaire. He replied his
father had not visited the PICS office the same day as his mother
and noted it appeared as though a different person had completed
each questionnaire. He agreed his mother knew
Amarjit Kaur Grewal and that his parents socialized
with Harbhajan Singh Kang. Counsel advised Satnam Toot that
Amarjit Kaur Gill testified she had been driven - by
Kang - to a meeting with Jaswinder Cheema, the Johals and other
SRC workers where Kang had played a major role in instructing the
group on how to answer the questions in the Questionnaires. He
replied the Questionnaires relevant to his mother and father had
been completed at the PICS office and he was unaware of any
meeting as described by Amarjit Kaur Grewal. He stated his mother
cannot count and although he attempted to teach her how to use
the telephone she could not - or would not - follow his
instructions in order to perform that task. He stated he did not
know how many weeks she needed to qualify for UI benefits in 1996
but understood the decision of the Minister relevant to his
mother would have an impact on the finances of their family. He
fixed the April starting date of his mother in relation to
Vaisakhi - an important Indian festival - and was certain she
began working prior to that event (Vaisakhi is held on April 13th
except for a leap year when it is celebrated on the 14th
according to the Punjabi calendar). He agreed his mother had
worked subsequent to 1996 although a contrary answer was provided
to the interviewer - Exhibit R-31, tab 96 - and added he had not
been permitted - by the interviewer - to correct that response
and to provide correct information. Regarding the HRDC interview,
he stated he felt "threatened" when the interpreter advised his
mother "we know what happened and you are lying and you could be
prosecuted and sent back to your country". During the interview,
he considered it necessary on several occasions to ask the
interpreter for clarification since it was difficult to find the
precise Punjabi equivalent to a certain English word or term. He
agreed his mother's responses tend to suggest she worked with her
husband from her first day until they were both laid off. Satnam
Toot stated he produced the entire bank book for the family
account so it could be inspected by HRDC.
[131] Harbhajan Singh Kang (Kang) was called to the
witness stand by Darshen Narang. He testified he worked as a
van driver - for SRC - from June 21 to October 9, 1996. He
arrived in Canada in June, 1994 under the sponsorship of his son
who came to Canada in 1988. Kang stated he and his wife - Harbans
Kaur Kang - lived in Montréal for the first two months,
then moved to Surrey, British Columbia. In India, he and his
brother were partners in an 8 acre-farm in Punjab and a larger
one - 15 acres - in Uttar Pradesh. He operated the farm in Punjab
and his brother managed the other property where rice and wheat
were grown. He was born in 1940 and started working on the farm
after completing Grade 10. He began studying English in Grade 6,
learned to write his name and by the time he left school could
speak a few simple phrases. Other than one subject in which
English was taught, all other instruction was in Punjabi. He
stated his wife was not educated and did not learn English after
coming to Canada but he attended ESL classes - in Surrey - 3 or 4
days per week for 6 months under a program sponsored by HRDC.
After arriving in Surrey during August, 1994, he was hired by a
female labour contractor - Binder - operating as DBK Contractors
(DBK) and was sent to work at a plant nursery in Pitt Meadows. He
worked for the same contractor in 1995 and for a period in 1996.
He also worked as a tree planter for two months and collected UI
benefits after being laid off in 1994 and 1995. During his
employment with Binder in 1994, he spoke with other workers and
learned about certain benefits available to workers after layoff.
In 1995, he obtained his B.C. Driver's Licence by studying a book
of instructions written in Punjabi and taking lessons from a
professional driving instructor. At some point in late 1995 or
early in 1996, he obtained a Class 4 licence that permitted him
to operate a vehicle carrying a maximum load of 24 passengers. He
stated he became a driver because other jobs such a tree planting
or farm labourer were too difficult. His first job as a driver
was with Bant (SRC) in 1996 and his assigned task was to pick up
workers at their homes, drive them to the farms and return them
at night. While working as a labourer for DBK, he was paid
$7.00-$7.15 per hour and received a cheque every two weeks.
He and his wife picked berries and were paid by the hour for that
work and for tasks performed at a nursery. Each night, the van
driver would announce how many hours had been worked that day. In
1996, he knew Bant and his wife - Shindo - ran a
labour contracting business that also involved Manjit Rana.
Later, he learned the business was operated by the corporation,
SRC. He telephoned Bant in order to advise that he had obtained
his Class 4 licence and wanted a job driving a van. He went to
Bant's house for an interview where Bant informed him SRC was not
willing to pay a salary more than $1,700 per month. This amount
was higher than he could earn as a labourer so he accepted the
offer and - about a month later - began working for SRC. The
Minister decided Kang's first day of employment was June 21, 1996
and he did not appeal that finding. He stated Bant rode with him
during his first day so he could learn where the workers lived in
order to be able to pick them up in the morning. He drove a
white/grey van with seats configured in rows with space for
4 persons on each of 4 rows and room for an extra person on
the last row, in addition to the driver's seat and passenger's
seat in the front. On occasion, extra people could be squeezed in
to attain the maximum capacity of 24. He stated he worked 7 days
per week for 2 ½ months, starting each day at around 5:00
a.m. and finishing after 6:00 p.m. or - sometimes - an hour
later. At the end of the season, he discovered he was going to be
paid only from June 21 - even though he had driving the van
earlier - because the prior period of about 10 days was
categorized - by Bant - as "unpaid training time".
Kang stated he started driving at the end of May and drove
several days during the subsequent 3-week period until he began
driving every day thereafter. However, he accepted Bant's
decision because driving a van was a much easier way to earn a
living and - after all - Bant had ridden with him for a few
days at the beginning. He did not recall keeping a logbook in
which he entered the names of the passengers carried each day but
Bant had instructed him to record the names of the workers on a
piece of paper and to hand over the list to him or Shindo. He was
instructed - by Bant - to ask farm owners how many workers would
be required to work the following day. For a 3-week period
following June 21, he drove workers to the same location,
sometimes following another SRC van. Because he did not carry a
cell phone in his van, Bant and/or Shindo telephoned him at his
house and gave him instructions. He was instructed to maintain
fluid levels in the van and to purchase fuel from money provided
by Bant. He kept receipts, handed them to Bant and obtained more
cash - about $200 - to purchase gasoline on a daily
basis after the last worker had been dropped off. Repairs to the
van were undertaken at a garage approved by Bant. Kang stated he
drove a total of 3 vans during his employment, one grey, one
white but the usual one was red. SRC had 3 or 4 vans, and 3 other
vehicles, including a large 45-passenger bus driven by
Harjit Gill, a smaller bus with a 24-passenger capacity and a
pick-up truck that was used to haul berries. One of the vans -
dark blue - capable of carrying 7 or 8 passengers was generally
reserved for the personal use of Bant and/or Shindo but -
sometimes - transported workers to farms in locations other than
Chiliwack or Abbotsford. When workers were taken home after
working on farms in Richmond, Shindo - on occasion - drove that
van. Kang was referred to a photograph - Exhibit R-8, tab 3 -
depicting a red/ brown van and stated it was either similar to
the one driven by him or was - in fact - the same vehicle. He
identified other vehicles appearing in photographs, including a
Ford van with windows - on both sides - from front to rear. On
occasion, Harjit Gill rode with him during the so-called
"training period" as designated by Bant. Kang identified other
SRC drivers, including Bhan Singh Sidhu - Master - Harjit Gill,
Manjit Rana, Bant, Shindo and Gurbachan Singh Gill whom he
thought may also have been referred to - by workers - as Bhajan
Singh. He recited the names and locations of farms where he had
transported workers during the course of his employment including
Khakh Farms in Abbotsford and Chiliwack and other farms in the
Abbotsford and Mission areas such as Gill Farms, Preem Farm,
Satti Farm as well as other farms in Langley and Pitt Meadows. He
stated he went to 6 or 7 farms in Richmond including Mike's Farm
which workers referred to as the "white man's farm". Pursuant to
arrangements with farmers who owned small acreages, SRC workers
picked blueberries which were hauled away in the small SRC
pick-up truck and sold by SRC. The picking on the small parcels
would take 2 or 3 days and then the workers would be hauled to
another location in accordance with the instructions of either
Bant or Shindo. He recalled taking workers to a farm on Steveston
Road where they picked strawberries. Khahk Farms also grew
strawberries and Kang stated he noted that when he drove 10-15
workers to the Abbotsford property at the end of May, the
strawberries were not ripe and the workers removed grass from the
area around the plants. He estimated SRC usually had between 70
and 90 workers, depending on whether it was the busy part of
season. When working at Khakh Farms in Abbotsford, SRC
transported workers in three 19-passenger vans, the large yellow
bus - driven by Harjit Gill - and the smaller bus. Other labour
contractors - including his former employer, DBK - also brought
pickers to the fields and Kang estimated the total workforce
exceeded 200 for a period of three weeks. During the picking
season at Khakh Farms, Kang stated he drove the red van every
day. Each SRC vehicle was full to capacity each morning and could
have carried - in total - as many as 120 people to the farm. Each
morning, drivers went to an area where an employee of Khakh Farms
gave directions regarding the placement of their particular
vanload of workers within the large field. Kang stated he handed
out picking cards - each morning - to workers after obtaining the
appropriate amount of cards from the farm owner/manager based on
the number of passengers inside the van that morning. From the
list of workers he had composed, he handed out cards to each
member of his van who announced their name and were handed a card
which was in triplicate. Some workers told him they had arranged
with the contractor (SRC) to be identified only by a number -
such as 5 or 7 - instead of a name. Kang stated some workers who
were husband and wife wanted to use a single card between them.
He asked them why they would not each use a card like other
workers and received a reply that an arrangement had been struck
with SRC to proceed in this manner. Following that explanation,
he agreed to hand out only one picking card to a husband and wife
who were picking together. He stated he was informed by other
people - not married to each other - that they - too - had made
an agreement with SRC to use only one picking card between two of
them. Some workers identified Rana as the person authorizing this
system while others told Kang they had spoken with either Bant or
Shindo. At the end of each working day, workers turned in their
cards to him and he handed them to an SRC supervisor. He observed
Bant handing a copy of the picking card to the farmer. Sometimes
he received fewer picking cards at the end of the day than he
handed out in the morning and reported the shortfall to either
Bant or Shindo. When workers were picked up between 5:30 a.m. and
6:00 a.m. to work at Chiliwack, they arrived at about
8:00 a.m. and worked until 5:00 p.m. or - sometimes - as
late as 6:00 p.m. and would not return home until 1 or 1 ½
hours later. In the morning after the last worker had been taken
to a designated area, he moved the van to a less-congested area,
parked it and went to sleep. During the day, he brought water to
workers and if his wife was working nearby, had lunch with her in
the field and picked berries with her for a while. He could not
recall if he had his own picking card but the relatively small
amount of berries picked by him were placed in his wife's flat.
Kang stated that when a flat was full, it was taken to a truck
and weighed on a scale by the farmer's own employees. If a flat
was less than full, the actual number of pounds was recorded on
the picking card. Later, a large truck hauled away a full load of
flats. He observed a competent picker could pick between 20
and 25 flats per day if there was a good crop of berries at that
time. However, one or two pickers - like Amarjit Kaur Grewal -
among the group of workers carried in his van, could pick as many
as 30 flats per day. In his opinion, based on the amounts
recorded on the picking cards he collected each evening, the
average worker picked 15 flats per day at the beginning of the
season, increasing to 20-25 flats during the peak period. He
recalled his van was only 50% full when he first began driving
but after mid-June he transported a full load of workers - each
day - until the end of August. He stated he hauled different
workers at different times but was able to recall the names of
those picked up in Richmond, including Gurcharan Singh Sidhu,
Kirpal Singh Deol, Gurmail Singh Gill, Harbans Kaur Grewal,
Baldev Singh Grewal, and Gian Singh Thandi and his
wife. He recalled transporting females known to him only as
Bakhshish Kaur, Surjit Kaur and Bhatti as well as Didar Singh
Mehat. He identified those workers he picked up in Surrey,
including his own wife - Harbans Kaur Kang - together with
Gurmail Singh Cheema and his wife
- Jaswinder Kaur Cheema, Karmjit Singh
Johal, Manjit Kaur Johal, Gurcharan Kaur Johal, Manjit
Kaur Johal, Amarjit Kaur Grewal, Swarn Singh Toot and his wife
- Sukhwinder Kaur Toot - Nirmal Singh Nagra and Singh
Sanghera and his wife - Bakhshish Kaur Sanghera - and
their 18-year old son. Harbhajan Singh Kang stated his
daughter-in-law - Varinder Kaur Kang - worked for SRC
but did not ride to work in his van. Each night, either Bant or
Shindo told him if changes needed to be made to his scheduled
route in order to pick up new workers or to bypass those who had
quit. He received directions - and instructions - from Bant
and/or Rana regarding the most efficient route to follow in order
to collect new workers. Initially, he had difficulty but become
more proficient as the season progressed. At times, he
transported 24 passengers and when some were forced to sit
on the floor - along the side of the van - he informed
Bant and/or Shindo and/or Rana this practice was neither safe nor
proper. He picked up Richmond workers first, then went to Surrey
where he collected more workers prior to proceeding down the
highway to Chiliwack. On occasion, he changed the order in which
passengers were returned to their houses and if a worker planned
to miss a day he would either be advised by that person or
someone from SRC would inform him that a certain worker would be
absent the following day. Sometimes, he went to a worker's house
and finding no one out front, knocked on the door only to be told
he or she did not intend to work that day. Kang stated he knew
his wife - Harbans Kaur Kang - was paid on an
hourly basis and assumed that applied to all other workers.
Either the supervising person from SRC or the farmer announced
the amount of hours worked on a given day but the usual work day
consisted of 8 hours, although it was extended by another hour
occasionally and - rarely - ended after 11 hours. The least
number of hours worked were 4 if the work was interrupted by
rain. Kang stated he was aware the holder of a Class 4 licence is
required to maintain a log of passengers and - in 1996 - he
entered information in a log including the odometer reading, the
time the vehicle was started, fluid levels, as well as the
licence plate of the vehicle he was driving and other items which
had to be checked off on the form which was kept available for
inspection by any peace officer. He clarified that there are
two logs required, one pertaining to the condition of the
vehicle and the other relating to the operation of that unit by a
particular driver. SRC had not provided him with the appropriate
log book but - later in the season - Harjit Gill instructed him
how to fill out a log and advised him to keep it in a safe place
inside the vehicle together with other important papers such as
registration and insurance. He stated he is currently aware that
a Farm Labour Contractor's Licence - issued by the provincial
government - is required to be posted inside the vehicle together
with a notice on which rates of payment for piecework - according
to the type of berry picked - and/or the applicable hourly rate
paid to workers must be displayed prominently. However, in 1996
he was not aware of those requirements nor was he aware of the
number of weeks of work required to qualify for UI benefits
following layoff. Kang stated he saw Rana work alongside other
persons on a vegetable farm in Richmond and Rana helped Bant and
Shindo weigh berries. Kang stated he had to ask Bant for some
wages and received payment - by cheque - on 3 occasions for a
total of $7,500. Also, he had to request additional money for the
purchase of gas and oil for the van. Kang was referred to
two cheques - Exhibit R-5, tab 178 - each in the sum of
$2,000 which were deposited at the Royal bank on August 14, 1996
and at Canada Trust on October 9, 1996, respectively. He stated
his pay statement at the next tab - 179 - was not correct because
his pay was based on a monthly salary of $1,700 and not an hourly
rate of $12. It indicated his period of employment was from
August 25 to October 19, 1996 with gross earnings of $5,376
and net pay in the sum of $4,651. Kang stated this error was
perpetuated when SRC prepared his ROE and he had to convince HRDC
that he had started work earlier. The Rulings Officer
- Janet Mah - decided he had worked 23 weeks and had
insurable earnings in the sum of $4,725. He did not appeal that
ruling to the Minister even though he had received another cheque
- in the sum of $3,500 - from SRC which he cashed at a Vancouver
bank and used the proceeds to buy rupees at a money exchange
prior to leaving for an extended holiday in India. The money was
exchanged and he picked up the rupees - less the
commission - in India at the exchange company's office. By
following this procedure instead of using a commercial bank, he
obtained two more rupees per Canadian dollar. According to
Exhibit R-22 - tabs 90 and 91 - his wife
- Harbans Kaur Kang - received two cheques in the
sums of $879 and $6,000, respectively, for a total of $6,879.
Both cheques were deposited to the Royal bank account. The pay
statement for Harbans Kaur Kang - Exhibit R-22, tab 93 - showed
net pay of $6,071.42 which was accepted by the Minister as
constituting her insurable earnings. Upon his return from India
on February 15, 1997, he completed an application - Exhibit R-5,
tab 204 - for UI benefits and filled out a box thereon by stating
his income was $2,200 per month. In other spaces, the answers
stated he worked 16 hours per day, 7 days per week and worked 70
hours during his last week of employment. Kang stated he
could not recall who assisted him to complete that form but he
received his UI benefits without any indication there was a
problem until he was notified to attend an HRDC interview -
Exhibit R-5, tab 166 - on May 26, 1997. He was
interviewed by Ted Bowerman and a Punjabi interpreter - Tejinder
Singh Bhandall - was present. Kang stated he provided truthful
answers and agreed he told Bowerman it was his daughter-in-law
- Varinder Kaur Kang - who assisted him to
complete the application for UI benefits. He stated his
answer was correct and now was able to recall Varinder being
present at the UI office and an HRDC employee assisting her to
complete his application. He confirmed his response to a question
from Bowerman that he hauled berries to Purewal Farms cannery on
two or three occasions by using the small SRC truck and that Bant
had ridden with him. In September, SRC purchased blueberries
directly from small farms in Richmond and the truck was used to
haul up to 1,200 pounds of berries in containers which were
loaded by SRC workers. At the cannery, the employees there
unloaded the product while Kang and Bant remained in the truck.
Kang recalled Bowerman had accused him of not being truthful
about his start date - in June - because the ROE showed his first
day was August 25, 1996. However, Bowerman later acknowledged the
ROE was incorrect and informed Kang the date of June 21, 1996
would be accepted by HRDC as his first day of work. Kang was
referred to a Statutory Declaration - Exhibit R-5, tab 168 -
written in English and another - tab 169 - in Punjabi which he
identified as his own handwriting. He wrote that he worked 75
days consecutively without a break and was paid a salary of
$1,700 per month net. He pointed out the ROE was incorrect not
only regarding his start date but in purporting to show he was
paid on a bi-weekly basis (The Certified Court Interpreter -
Russell Gill - confirmed to the Court that the English version of
the declaration is an accurate translation of the one written in
Punjabi.). Kang confirmed his red van was propane-powered and did
not recall whether any SRC vehicles used gasoline. Darshen Narang
referred Kang to a photocopy of his Canada Trust bank book -
Exhibit R-5, tab 182 - that he provided to HRDC during a second
interview - tab 170 of the same exhibit - on May 29, 1997. Kang
pointed to entries showing the following deposits: July 24, 1996
- $2,100; August 14, 1996 - $2,000; October 9, 1996 -
$2,099.50; October 17, 1996 - $8,199 and October 24, 1994 - $879.
On October 9, 1996 there was a withdrawal in the sum of $3,000
followed by two withdrawals on October 17, 1996 in the sums of
$3,000 and $1,000, respectively, and another withdrawal of $2,000
on October 24, 1996. According to the stamp on the $6,000 cheque
- Exhibit R-22, tab 91 - payable to Harbans Kaur Kang, it was
deposited to the Kang family account at Canada Trust on October
17, 1996. Kang stated he did not know the composition of the
deposit made that day in order to create a total amount of $8,199
but speculated it may have been money received from his son plus
a GST rebate cheque in the sum of $99. He stated the sum of
$10,000 was withdrawn on October 24, 1996 to purchase a term
deposit which was later used to purchase a family home during the
summer of 1997. He recalled the family required a lot of money
for the India trip because three people were travelling there and
he wanted to take enough money to paint his mother's house since
she was now a widow. At that time, the sum of $6,000 Canadian
purchased about 150,000 Indian rupees but India was undergoing a
period of inflation. During his third HRDC interview - Exhibit
R-5, tab 171 - conducted on June 20, 1997, Kang was informed - by
Ted Bowerman - that Harbans Kaur Kang had complained she had
never been paid by SRC. Kang admitted he had deposited two
cheques - payable to his wife - into the joint account and one
cheque - $6,000 - formed part of the $8,199 deposit on that day,
although he could not tell Bowerman the source of the remaining
sum of $2,199. Kang agreed he had collected and deposited another
cheque - in the sum of $879 - payable to his wife. During a
fourth interview - Exhibit R-5, tab 172 - held on January 28,
1998, Kang told Bowerman - at p. 3 - that about two days before
he started working, Harjit Gill went out with him to show him
where to go each morning. Earlier, Kang told Bowerman he started
working "not the beginning about 2 or 3 weeks in June". Kang
stated he wanted to tell the truth and to advise Bowerman he had
started driving at the end of May but - earlier - when he
received a notice that he was required to attend an HRDC office
for an interview, he took the letter to Bant who instructed him
to tell a story that matched the August 25, 1996 starting date
used on the ROE and the application for UI benefits. Kang stated
it was apparent Bant did not want HRDC to know he was working
full time for SRC as at June 21, 1996. Kang stated that each time
he was notified of an impending HRDC interview, he spoke with
either Bant or Shindo. He had grown somewhat angry that he had to
attend these interviews but received an assurance - from Bant -
that lawyers had been hired to deal with the situation and that
he should not worry about it. Kang stated he told Bant he had
been informed - by Bowerman - SRC had not remitted any of the
worker's income tax deductions to Revenue Canada and received the
response that Bant - personally - had not hired any workers. Kang
stated that by this stage of the HRDC investigation, he came to
understand SRC had been doing something wrong when carrying out
their labour contracting business during 1996. During the course
of his employment, Kang stated he overheard workers complaining
they were not being paid regularly and could not meet their
living expenses. Kang estimated he was inside Bant's house
between 5 and 9 times during 1996. He recalled driving some
workers to the TD bank at 49th and Fraser but had never driven
any workers to an HRDC office so they could apply for UI
benefits. The TD bank was about 8 or 9 blocks from the
Bant/Shindo/Rana residence and one day - after the end of
the berry season - Bant instructed him to drive Rana and
5 or 6 former SRC workers to the bank. Kang went inside the
TD bank and sat on a chair. Rana went to the teller's wicket with
the workers. Kang stated he did not observe any of the workers
handing any money to Rana. Kang stated he left Rana at the bank
and drove his passengers to their homes. He recalled it was
October 19, 1996 - his last day of work - but did not remember
the names of his passengers except for Swarn Singh Toot. He
returned the van to SRC a couple days later. Kang was shown
copies of photographs and - despite the poor quality of some -
correctly identified Shindo, Bant, Rana, and Harjit Gill. He
stated he had not seen Rana since dropping him off at the TD bank
on October 19, 1996 and had not seen Bant since before his last -
or next-to-last - interview with Bowerman. His last contact with
Shindo was following one of his earlier interviews with Bowerman
and he stated she was not "helpful" in responding to his
concerns. Kang was referred to a Notice to Report issued to him -
by HRDC - regarding his May 26, 1997 interview. He stated this
was probably the notice that prompted him to consult with Bant
who told him what to say regarding certain dates significant to
his employment. Kang stated he was aware - at that time - other
workers - including his own wife - had already spoken to an HRDC
official or were scheduled to attend an interview. Kang stated he
had worked for Virk - a labour contractor - in 1997, but Bowerman
informed him that UI benefits stemming from that employment were
going to be held in abeyance until his employment situation with
SRC - in 1996 - had been clarified. Kang stated he had seen
either Bant or Shindo - and perhaps Rana once or twice - hand
small sums of cash - $100 or $200 - to workers who had requested
some money. He observed money paid at the end of the work day
while driving workers to and from Richmond. On one occasion, he
noticed a worker receiving the sum of $500 - cash - from Bant but
never saw that person - or any other worker - sign a receipt nor
did he notice Bant making any record of such payment. When Kang
received money - from Bant - to purchase fuel, he did not sign
any receipt but made his own record - at home - and always
retained receipts of purchases which were given to Bant the next
time fuel money was required. Kang recalled his
daughter-in-law - Varinder Kaur Kang - began working
for SRC near the end of the blueberry season.
[132] The witness - Harbhajan Singh Kang - was
cross-examined by Johanna Russell. Kang confirmed his
earlier testimony that the red van definitely used propane and
that he other 19-passenger vans, white and grey, respectively,
probably used the same fuel. Another blue van was also used to
transport workers in addition to the two buses. The red van that
he drove had rear doors but there was not enough space for anyone
to sit there and if the seats were full, a worker would have to
sit on the floor and occupy a small area near the last row of
bench seats. He stated 5 thin people could squeeze together and
sit on a bench seat designed for only 4 persons. Kang agreed he
had no method of proving he had received another cheque - in the
sum of $3,500 - from SRC which he cashed at the TD branch at 49th
and Fraser. Counsel referred Kang to a copy of the SRC bank
statement - Exhibit R-1, tab 25 - for the period from
March 19, 1996 to April 1, 1997, which did not disclose that any
cheque in the sum of $3,500 had cleared that account. Counsel
referred Kang to earlier statements made by him during an
interview - Exhibit R-5, tab 166 - held on May 26,
1997- about 7 months following his layoff from SRC - that he had
received two cheques, one for $2,500 and another for $2,000
(Q.18). During another interview - same exhibit, tab 167 - he
confirmed that statement and added one had been received in
September and the other in October. When asked - by Bowerman -
whether those were the only cheques received, he replied "Yes".
At that point in the interview, Bowerman produced copies of two
cheques, each in the sum of $2,000. Kang explained Rana knew that
he had been working at another job earlier in the season and
inquired how many weeks of employment he needed to qualify for UI
benefits. When Kang told Rana the extent of his earlier
employment, Rana prepared the ROE and inserted a start date -
August 25 - that was sufficient to permit Kang to qualify for UI
benefits and did not use the actual start date in mid-June, 1996
because he calculated Kang only needed another 8 weeks of
employment to enjoy full benefits at the end of the season.
Counsel reminded Kang he never informed Bowerman during any
interview that he received - and cashed - a cheque in the sum of
$3,500 near the end of the season. Kang agreed that was a large
sum of money but stated he had been "nervous" and "weak" during
the interviews and probably provided incorrect answers. Counsel
pointed out he had been sufficiently lucid to convince Bowerman
his correct start date was June 21, 1996 and that his T4 -
Exhibit R-5, tab 183 - showed gross earnings in the sum of $5,376
which was the amount used in the pay statement at tab 179 of the
same exhibit (Counsel and Darshen Narang, agent for the first
named group of appellants agreed - and the Court concurred - that
both SRC cheques payable to this witness as well as the SRC
cheques issued to his wife - Harbans Kaur Kang - were
deposited to their Canada Trust account. Some confusion had
arisen because it appears the Royal bank had been used as a
clearing house since the Royal stamp also appears on the copies
of the reverse of those cheques.). Counsel referred Kang to his
answers during the interview - Exhibit R-5, tab 166 - where he
stated - p. 6, Q. 17 - that he was paid "monthly, $1,700 per
month by cheque" and that those cheques were deposited into his
Canada Trust account. Counsel pointed out that - again - there
was no mention of any final cheque in the sum of $3,500 and
suggested that in order to earn the sum of $7,500 net pay - in a
3-month period - he would have had to gross at least 20% more in
order to account for the standard source deductions. Counsel
referred Kang to a 1996 calendar - Exhibit R-32 - and advised him
that there were 121 potential working days between June 21 and
October 19, 1996, the period of his employment according to the
decision of Janet Mah - Rulings Officer - which he had not
appealed to the Minister. Counsel suggested that if his salary
was $1,700 per month - or $57 per day, if reduced to a daily rate
- he could not have earned more than $6,897 - gross - even if he
never took a day off. Kang agreed he had taken off some days due
to a sore back. Kang stated the only explanation he could offer
to resolve this matter was based on his belief that Bant operated
another account and used that source to issue the final $3,500
cheque. Kang stated he knew of another account that was used - by
Bant - when buying berries from small farms. Counsel advised Kang
that his wife - Harbans Kaur Kang - testified she had never seen
him picking berries but his name appeared on picking cards from
Gill Farms showing certain production - by him - on July 9 and
July 10, 1996. Counsel also advised Kang that Gurmail Singh Gill
had testified earlier in the within proceedings that he had seen
Kang picking berries "quite often". Kang agreed that statement -
by Gill - was accurate. He agreed that picking cards were used
even on the small farms but when responding to the Questionnaire
- Exhibit R-22, tab 110 - concerning his wife's employment with
SRC, the written answers indicate no picking cards were ever
used. Kang stated he was interpreting his wife's answers and
someone was writing them down in the Questionnaire. He confirmed
picking cards were used by his wife and stated his understanding
was that a farmer still needed to measure the volume of crop
picked each day regardless of how the contractor was paying the
worker. Kang agreed that he drove 13 of the appellants to work
during the 1996 season, including his wife and daughter-in-law.
He stated he met other appellants from time to time at PICS
office, at the store or the Temple. He stated
Amarjit Kaur Grewal and her daughter visited his house
to inquire about the SRC situation that was causing problems with
UI benefits. Kang stated his first knowledge of any such problems
was acquired - from Bowerman - during an interview on May 26,
1997. Kang stated he had no specific recollection of transporting
workers - such as the Toots - from Surrey to Bant's house but
recalled driving several workers from Bant's house to the TD bank
while Rana rode "shotgun" in the front passenger seat. Counsel
advised Kang that Amarjit Kaur Grewal testified he had
driven her to Bant's house and that 4 or 5 other workers had
also described - to HRDC interviewers - how they had been driven
- by him - to the Bant/Shindo/Rana residence. Kang replied that
he did not disagree but had a clear recollection of driving to
the bank because he had never been there before and had to rely
on directions provided by Rana. Similarly, he could recall
driving workers home after they left the bank. Counsel suggested
to Kang that he was making up the story about not driving Rana
back to his residence because he knew workers repaid money when
they all returned to the house. Kang denied participating in any
scheme to defraud UI, nor had he seen any workers paying back
money to either Bant or Shindo or Rana and had no knowledge
anything was wrong with SRC business affairs until so informed by
Bowerman on May 26, 1997. Counsel referred Kang to his answer -
to Bowerman - during the fourth interview - Exhibit R-5, tab 172,
mid-way at p.5, - on January 28, 1998, where he apparently stated
he "could not remember" whether he had been present at Rana's
house when certain SRC workers gave back money to Rana and then
received their ROEs. When informed that some SRC workers stated
they had seen him at that house, he replied "I took people to the
bank and back to the house, I didn't see anything". He agreed
that statement was correct. Counsel related the testimony of
Amarjit Kaur Grewal where she described how Kang drove her - and
other workers - from their homes to Rana's house, then to the
bank and back to Rana's where she handed $4,000 in cash to Kang
who handed it to Shindo because she demanded it prior to handing
Grewal her ROE. Counsel advised Kang several other former SRC
workers had confirmed that - in Kang's presence - they handed
over money to Shindo and/or Rana after returning from the bank
and did so in order to receive their ROEs. Kang stated Grewal's
testimony in this regard was wrong and denied touching any money,
as described, or at all , and repeated his previous assertion
that he had never seen any of his passengers hand back any of the
money they had obtained at the TD bank a few minutes earlier. He
stated he did not recall whether he drove Manjit Kaur Johal to
the bank and then back to Rana's house. He stated he considered
himself to be nothing more than a driver and did not pay
attention to other matters. Counsel suggested it was somewhat
strange he would not be able to recall the events on that day
since he had never been to that TD branch before and it was a
unique experience driving workers to that bank to cash their
cheques. He replied that he could recall some details but had no
recollection of others, including the identity of some people he
is alleged to have driven to the bank. Kang agreed with counsel's
suggestion that if he had cashed his $3,500 cheque - at that TD
branch - it must have been after October 19, 1996 because he
would not have needed directions - from Rana - if he had been to
that branch earlier. Counsel informed Kang there had been
testimony from Amarjit Kaur Grewal that other SRC
workers - some of whom were appellants in the within proceedings
- were present at a meeting where he played a major role in
directing workers to complete their Questionnaires in a
particular manner. Counsel advised Kang that Amarjit Kaur Grewal
testified she had felt pressured by others - at that
meeting - to accept the answers suggested and permitted them to
be inserted in her own Questionnaire which was later returned to
Revenue Canada. Counsel also advised Kang that Amarjit Kaur
Grewal testified he picked her up in a vehicle and drove her -
together with other former SRC workers - to a meeting held in a
house where the matter of completing the Questionnaires in a
certain fashion was the main topic of discussion. Counsel further
advised Kang that an examination of several Questionnaires
revealed that the answers therein were almost identical even when
the information was obviously incorrect and suggested it was not
reasonable to assume that volunteers at PICS had made all these
errors in several different Questionnaires. Kang responded by
stating there was never any meeting held as described by Amarjit
Kaur Grewal in which he participated, as described, and recalled
only one meeting he attended at PICS when certain questions were
directed to him by the PICS moderator because he had been a van
driver and was able to provide certain information. Kang agreed
he submitted an application for UI benefits - completed on his
behalf by Varinder Kaur Kang - in which he stated he had worked 8
weeks for SRC, beginning August 25, 1996. Kang stated he did so
in order to conform with instructions given to him by Bant
earlier. Counsel suggested to Kang that the reason he stated he
only had 8 weeks employment with SRC was because he had enough
accumulated work time with another employer earlier in the year
in order to qualify for UI benefits. Further, counsel suggested
he only revealed - to Bowerman at HRDC - that he started driving
around the end of May but was not paid for any work until June
21, because he became aware that some appellants in the within
proceedings told HRDC they had been riding to work with him since
May 25, 1996. Counsel informed Kang that some appellants -
including the Johal couple and the Cheema couple - stated he had
been driving them to work in April, 1996. Kang stated he did not
drive for SRC in April but took them to work prior to June 21.
Counsel reminded Kang he had never revealed to Bowerman during
any of the interviews that he had performed services to SRC prior
to June 21, 1996 when he had taken the trouble to convince
Bowerman his true start date was June 21 and not August 25 as
shown in the faulty ROE issued by SRC. Counsel referred Kang to
his answer - noted by Bowerman at Exhibit R-5, tab 167, at p. 1 -
where he stated he started work in the third week of June and
then added "before that, I didn't work at all". Kang confirmed he
provided that answer to Bowerman because he was complying with
the instructions of Bant to use that date as his first day of
employment because he was not paid for any driving before then.
Kang confirmed that during other HRDC interviews he maintained he
started working "after the 18th" - in June - because there were
no raspberries to be picked before that date. He had been laid
off from his former job on May 17, 1996. Counsel pointed out that
even during the fourth interview with Bowerman - Exhibit R-5, tab
172, p. 1 - on January 28, 1998, he still answered that he
started working two or three weeks into June, without any mention
of driving the van prior to that date during a so-called training
period. Kang replied he was afraid of Bant and also of Bowerman
even though he believed that at this stage of the investigation
he had gained some respect from Bowerman as a result of attending
three previous interviews (In response to a question from the
Bench about what he thought Bant could have done to him had he
chosen not to follow his instructions, Kang replied that because
Bant was a labour contractor, he could tell other contractors
Kang was not only unreliable but was a person inclined to tell
the truth to government officials when questioned). Counsel
pointed out that his own wife - Harbans Kaur Kang - testified she
rode to work on her first day - and probably for the rest of that
week - in a van driven by Bhan Singh Sidhu, known as Master
(Harbans Kaur Kang asserted her start date was June 1, 1996;
the Minister decided June 23, 1996 was her first day of her
employment.). Kang agreed his wife rode with Master - as stated
by her - because she was performing lighter tasks and the workers
he transported at that stage of the season were doing harder
work. Counsel referred to the notes of Janet Mah
- Exhibit R-22, tab 83 - concerning a conversation
with Jatinder Kaur Johal who was interpreting for Harbans Kaur
Kang. The response noted is that Kang drove his wife to work on
her first day. Counsel advised Kang that his wife had given the
same answer at her Discovery on December 21, 2001 but further
detail was supplied, namely, that he was driving a white van and
- at another point in her discovery - p. 30, Q.
236 - answered "once my husband started, I went with him, before
that Master picked me up". At one point during Discovery,
Harbans Kaur Kang confirmed an earlier answer that her
husband - Kang - began working for SRC two months after her
and became employed only because SRC was looking for a van
driver. Kang stated his wife was probably confused about his
start date because - at Discovery - his ROE showed the erroneous
start date of August 25, 1996. He explained his wife's memory and
ability to recall sequences of events were badly affected ever
since the 1990 death of their son - at 18 - in India. Regarding
payment of wages to his wife - Harbans Kaur Kang - counsel
advised Kang that during an interview - Exhibit R-22, tab 88,
p.1, - on June 18, 1997, she stated she had worked but did not
receive any money and even when shown two cheques in the
sums of $6,000 and $879, respectively, payable to her and
deposited in their joint Canada Trust branch in Delta in October,
1996, she replied she had never seen those cheques before. Kang
replied that response by his wife was strange because she knew -
at that time - he had collected wages on her behalf. Counsel
pointed out that his wife - at p. 4 of her interview - was aware
Kang had collected his own pay cheques but said there were "none
for me". At Discovery on December 21, 1001, Harbans Kaur Kang
stated she had been overpaid by Bant because she was not entitled
to the total sum of $6,879 she had received in two cheques
but should have been paid only $6,071 in accordance with her pay
statement at Exhibit R-22, tab 93. She explained Kang had been
drunk when he paid her and - therefore - made that mistake. Kang
agreed Bant was a very heavy drinker but did not know his wife
had been overpaid and that if it were so, it had been done to
correct an overpayment and not to purchase a "weeks paper". Kang
stated that he and his wife were both paid in full after working
for the entire season and did not repay any of their wages to
anyone at SRC in order to obtain ROEs in order to qualify for UI
benefits. Counsel referred Kang to his statement to Bowerman -
Exhibit R-5, tab 170, p. 4 - on May 29, 1997 to the effect
that his wife's pay was included in his own. Kang replied he was
attempting to explain that her pay was deposited into the same
joint account together with his own cheques received from SRC. On
June 20, 1997, only two days after his wife told the interviewer
she had never been paid for working at SRC, Kang told Bowerman
that his wife had received two cheques - totalling $6,879 - and
the money had been deposited to their Canada Trust account and
suggested it was a matter "between a man and a wife". Counsel
informed Kang that no other witness had ever mentioned that SRC
used a small bus to transport workers and suggested he invented
that vehicle in order to cover the situation applicable to
appellants who took the position they rode to work on a bus that
- because of the limits created by his period of employment -
could not have been driven by Harjit Gill. Kang did not
respond. Counsel suggested Gurbachan Singh Gill had never been a
driver for SRC. Kang replied he saw Gill driving a "greyish,
whitish van" and saw him between 2 and 4 times during
strawberry season - in July - and also at two or three farms in
Abbotsford during raspberry season in July or August. Kang was
advised by the Court that Gill's own position was that he had not
started working as a driver for SRC until September 1, 1996. Kang
stated although he may be mistaken as to the time of year and
that perhaps it was during blueberry season when he saw Gill
driving workers in a van.
[133] The witness - Harbhajan Singh Kang - was
re-examined by Darshen Narang, agent for the first group of
appellants named in the within style of cause. Kang stated that
following his own interview with HRDC on May 26, 1997, he told
his wife about certain aspects of the HRDC investigation. After
Harbans Kaur Kang was interviewed - on June 18, 1997 - where she
denied having received any wages, Kang stated she told him about
those questions and her responses. Kang stated he told his wife
he had received cheques on her behalf and when she was
interviewed again - on June 20, 1997 - that was disclosed to
Bowerman. Kang stated he told his wife at the end of the season
he had collected her wages - in the form of cheques - and
deposited the money to their account and repeated that
information after his own interviews with Bowerman on May 26 and
May 29, 1997. He stated he told his wife she should have informed
Bowerman her wages had been collected by her husband. Concerning
the various vehicles used by SRC during 1996, Kang recalled there
were 4 vans, two buses, one pick-up truck and another van that he
regarded as the Bant/Shindo/Rana family van used mainly for their
own purposes. Two or three vehicles were parked in a driveway at
their residence or in an alley or along 49th Street. Usually, he
approached their residence from the rear and even though all of
the vehicles were not there at the same time, over the course of
his employment he had seen all of the SRC vehicles at one time or
other. He recalled the large, yellow bus had no signs or
lettering on it and neither did the smaller one nor any of the
vans unlike the vehicle he subsequently operated in the course of
his employment for another labour contractor. Although he had
examined the registration papers of several of the SRC vehicles,
he could not recall whether they were registered in the name of
SRC or Bant and/or Shindo and/or Rana personally. Kang stated he
had received a final cheque - in the sum of $3,500 - and cashed
it at the 49th Avenue and Fraser TD branch. He recalled receiving
it from either Rana or Shindo - at the end of the season - at
their house and assumed the cheque had been prepared in the
correct amount to pay his wages in full. With regard to the HRDC
investigation, Kang stated that after receiving his Notice to
Report for the May 26, 1997 interview, he went to see Bant who
informed him there would be questions asked about his work with
SRC. Bant told him certain things to tell the interviewer but
Kang could not recall specific details of that advice. After the
interview, Kang stated he was upset at Bant for causing troubles
and went to his residence to talk to him about it. At the house,
Shindo answered the door and instructed him to "go to the back"
but he refused and entered the residence. While he was there, two
persons knocked on the door and spoke to Shindo. When they left,
she returned and said to him "Uncle, they were asking about
Rana". Kang stated he left the house shortly thereafter.
[134] Darshen Narang advised the Court he was closing
the case on behalf of those appellants represented by him,
subject to any rebuttal evidence that may be produced following
presentation of the respondent's case.
[135] Other appellants, either self-represented or
represented by agents other than Narang had closed their case in
person at the conclusion of their own testimony.
[136] Johanna Russell commenced the case for the
respondent by calling Mark Sweeney to the stand.
[137] Mark Sweeney stated he resides in the Abbotsford
area and is employed by the British Columbia Ministry of
Agriculture, Food and Fisheries. In 1977, he received his
Bachelor of Science, specializing in horticulture, which he
described as the science - and art - of growing extensive crops
such as berries, vegetables and greenhouse produce. As a member
of the British Columbia Institute of Agrologists
- since 1981 - he is required to participate in
professional development programs in order to upgrade his skills.
In 1978, his first job with the Ministry was as a technician and
after two years he qualified as a professional horticulturist
specializing in vegetable crops. He remained at that post until
1998 when he was assigned the role of sole berry specialist in
the entire province. Sweeney stated there is extensive
interaction between his current role and his previous long-term
position due to the inclination of many farmers to grow both
berries and vegetables in the course of their business. He stated
his main function is to apply research to practical growing
operations for the betterment of the industry and to that end a
variety of written material is published by the Ministry in which
technical aspects of growing crops, including insect, disease and
weed control, and difficulties in harvesting and marketing are
discussed.
[138] Darshen Narang did not oppose the submission of
Johanna Russell to qualify Mark Sweeney as an expert in the
growth and harvesting of berries and vegetables and he was so
qualified by the Court and permitted to offer opinion evidence
within that discipline.
[139] Sweeney prepared a report - Exhibit R-41 - in
which he set forth the approximate planting and harvesting dates
in the Lower Fraser Valley for 1996. He noted therein that - in
general - a cooler and wetter than normal weather pattern in the
spring delayed planting and harvesting of most crops and although
warm summer weather allowed some recovery, an early arctic
outflow in late November ended the harvest of most winter
vegetables. In his report, Sweeney stated that pre-planting work
such as plowing, disking and other land preparation for vegetable
and berry crops would generally begin in late February and
continue through the spring and summer as weather permits. The
preparation work of growing transplants would occur from December
through May and noted the timing and extent of weeding would
depend on the particular crop and the season but generally would
begin shortly after first plantings in April and would continue
into fall. Any pruning of blueberries and raspberries is
generally performed during the dormant period from November
through March, although a small amount of pruning for removal of
diseased wood could be done in the spring, summer and fall.
Sweeney concluded his report by observing that field harvesting
of Brussels sprouts, cabbages, parsnips, leeks and other hardy
crops generally does occur in November and December but
- in 1996 - harvesting of most crops was curtailed by
a severe arctic outflow in late November. In paragraph 3 of his
report, Sweeney set forth the normal planting and harvesting
times for a variety of berries and vegetables - applicable to the
1996 growing season - within the geographical area relevant to
the within appeals. The dates having the most significance are as
follows:
Type of
crop
Planting
Harvesting
Strawberries
April 15-July
1
June 15-July 15
Summer
raspberries
February 20-May
30
July 1- August 10
Fall
raspberries
February 20 - May
30
August 20 - October 15
Blueberries
April 1 - May
30
July 7 - October 15
October 1 - November 15
Turnips
April 15 - July
1
July 1 - November 1
Radishes
March 1 - August
1
May 1 - November 1
Cauliflower
April 15 - July
15
June 15 - November 15
Zucchini
May 1 - July
1
June 20 - October 15
Peppers
May 1 - June
15
June 20 - October 15
Daikon (lo
bok)
March 1 - July
15
June 1 - November 15
Cabbage (green/red)
April 1 - July
1
June 15 - November 15
Broccoli
March 15 - August
1
June 15 - November 15
[140] In the course of preparing his report, Sweeney
stated he looked at long-term data kept in Ministry records as
well as information from various sources - including
growers - pertaining to the 1996 season. He also referred to
Daily Data Reports - Exhibit R-42 - for the period April 1 to
December 31, 1996 gathered at the Vancouver International Airport
in Richmond and at reports - for the same period - applicable to
the Abbotsford area. Sweeney stated the Eastern portion of the
Fraser Valley - including Chiliwack and Abbotsford - is warmer
sooner than some other areas such as Richmond which is cooler due
to its proximity to the ocean. In 1996, the normal start date for
picking strawberries - in Sweeney's opinion - was June 15 but
stated that can be affected by location, variety of berry and
grower practice. However, any variations would be within a 7-10
day range and it would be highly unlikely that any strawberries
had been ready for picking during the period from May 19 to June
2, 1996. In his view, June 9 was the earliest picking date for
strawberries and stated weather is the most significant factor in
determining harvest dates, followed by the ype of berry and
farming methods employed by a particular farmer. Sweeney recalled
speaking to Janet Mah - Rulings Officer - on June 8,
1999 and providing his opinion that the 1996 strawberry season
started on June 10 and ended on July 15 for the June-bearing
varieties. The ever-bearing type is harvested as late as
September but is grown on about 50 acres in total and constitutes
only a small percentage of total strawberry production in the
Fraser Valley. Regarding the raspberry crop, Sweeney stated the
end harvest dates for the summer-bearing variety was August 15,
1996 and any later picking would involve only the fall-bearing
berries which can continue until October, weather permitting.
However, this late-bearing berry comprised less than 3% of
Fraser Valley production. Sweeney recited various types of
blueberries including Duke - early-maturing - Bluecrop
- maturing in late July - and Elliot which is harvested at the
end of August through September until mid-October, at which time
picking volumes are small. The Duke is a recent arrival in the
Fraser Valley and the Bluecrop berry probably amounted to 60% of
the acreage devoted to blueberry production in 1996. Sweeney
described August as "blueberry month" and stated mid-September
would be the last date for picking except for the Elliot variety
- 5% of total - which could be harvested until mid-October. In
his opinion, the majority of varieties of blueberries matured in
late July, 1996 and continued through August during which time
they were sold to processing plants. Any later crop would be sold
to the fresh market in stores. He stated strawberries do not
mature all at once and spoilage can occur in a matter of 3-4
days. As a result a freezing facility offers more flexibility to
the grower since the berries can be frozen for future uses.
Raspberries, however, are more perishable and tend to drop on the
ground when ripe. Blueberries are least perishable of the three
berry crops and offer more flexibility in picking times but the
harvest must still be done in a timely manner particularly if the
grower is selling to the processors. Sweeney stated the season
can be extended if targeted consumers are supermarkets but in
that case the grower must compete with berries from California
and may not receive enough money per pound to make it profitable.
He noted there is a small high-end boutique market but the late
crop has to be sold at high prices and that market can be
unpredictable. In preparing his report - Exhibit R-41- as it
pertained to vegetable production, Sweeney relied on typical
harvesting dates but noted temperatures fell to minus 5.4 C
and minus 6.6 C on November 22 and November 23, 1996,
respectively. Although most vegetables should have been harvested
by October 15, any remaining crops of frost-sensitive vegetables
such as cucumbers, squash, zucchini, peppers, corn and pumpkins -
mainly a Halloween item - would have been killed instantly at
those temperatures. In Sweeney's opinion, cauliflower, onions,
and carrots would have been badly damaged due to that amount of
frost. Further, hardy vegetables like cabbages and Brussels
sprouts could be marketable - if thawed out naturally - and
subsequently harvested. However, in order to avoid cold weather,
the majority of growers aim to harvest all their vegetables by
late October since a temperature of minus 0.2 C on October 30,
1996 - recorded 4.3 meters above the ground at the Vancouver
International Airport - would probably translate to 0 C or less
at ground level and October 31 was colder at 0.7 C In Sweeney's
opinion, that would have been a killing frost - at ground level -
for all cauliflower, cucumbers, chili peppers and bell peppers,
but daikon may have survived although it is less tolerant of cold
than Brussels sprouts. Turnips are the most hardy if exposed to
temperatures lower than minus 6 C, they are no longer marketable
and neither are radishes if there is frost damage to the upper
portion. Potatoes can withstand temperatures as low as minus 6 C
but most growers would have harvested that crop earlier. Since
competent growers plant different varieties with different
maturing times in order to enable an orderly, progressive
harvest, some cabbages can be harvested as late as November 15
and although Brussels sprouts can be picked during November,
Sweeney stated they would not be picked in late December when
temperatures are minus 3 C to minus 12 C at night and only warm
up to 1 C for a short period during the day. Buyers are not
interested in purchasing produce harvested under those sorts of
conditions because apart from the cold, the wind tended to
desiccate the tissue of the sprout. Sweeney noted the latter part
of November, 1996 was colder than normal. With respect to
planting vegetables, Sweeney stated ordinary radishes can be
planted up to August 1 while peppers are started in the period
from mid-March to mid-April in greenhouses and transplanted in
mid-May. Other crops are usually planted directly into the ground
and most large growers use mechanical seeders or transplanters
which reduce the number of workers needed during that part of the
season. Sweeney stated planting dates are affected by rainfall so
farmers search for a window of opportunity during which there is
dry weather.
[141] The witness - Mark Sweeney - was cross-examined by
Darshen Narang, agent for the first named group of appellants in
the within style of cause. Sweeney stated a strawberry plant will
last 3 years and the first year will not produce berries. Once
the plant is mature, two or three crops can be expected from the
plants and when they are finished another crop is planted in
accordance with rotation practices. Sweeney estimated the average
yield fell within a range of 4,000 lbs. to 12,000 lbs. per acre,
with 8,000 lbs. representing normal production. He agreed the
Juneberry variety of strawberries will produce one minor crop the
first year but noted that most growers ignore that one as the
amount obtained is not commercially viable and the berries are
left on the ground. If the berries are sold, they might be picked
as late as July 15. In his opinion - based on his observations in
the area - 75% of strawberry plants do not produce well in the
first year. With respect to the 1996 growing season, Sweeney
stated it began with a cooler, wetter spring and in order for
crops to grow there has to be sufficient cumulative heat units
not just one or two hot days. As recorded in the Daily Data
Reports - Exhibit R-43 - the number of heat degree days is
important as it advances the crop growth which is capable of
measurement in accordance with a formula and a baseline. The
ideal weather for growing strawberries in May features highs of
25 C during the day and a low of 20 C at night. Unfortunately,
that sort of heat - normal in Oregon - does not arrive in the
Lower Fraser Valley until later in the season. The Daily Data
Report for May 1996 indicates it was a cold month with high
temperatures ranging between 12.4 C - on May 2 - to 21.7 C - on
May 24 - but the daily high was below 20 C for 28 days that
month. Sweeney stated he had visited the Khakh Farms in the
mid-1990's when he was working as a vegetable expert and recalled
cauliflower, Brussels sprouts, corn, strawberries and raspberries
were grown on the property. The strawberry farm operated by Khakh
in the Yarrow area in the west part of the Chiliwack region
produced an average yield of 8,000 lbs. per acre. Sweeney stated
the average yield - for raspberries - is between 7,000 lbs. and
8,000 lbs. per acre if picked by hand and perhaps 9,000 lbs.
to 10,000 lbs. per acre if harvested by machine. In 1996, most
raspberries in the Lower Fraser Valley were harvested
mechanically. Sweeney stated there were about 10 varieties of
raspberries in production during the mid-1990's of which two -
Meeker and Willamett, respectively - were the most popular. The
life cycle of raspberry plants - at that time - had been reduced
to 8 or 10 years. Normally, a raspberry bush is planted and the
following year produces 50% of a normal crop, increasing to full
production the next year and for the remainder of its life span.
A variety known as Malahat is an early-maturing raspberry and is
ready to pick about one week before the main crop but it
represents only a small percentage of overall production within
the industry. Another variety - Comox - can be picked during the
last week in June which is about 15 days before the start for the
Meeker variety. Sweeney recalled there was another similar
variety - Chilcotin - but it was declining in popularity and - by
1998 - had fallen out of favour with growers. The early harvests
were handpicked for the fresh market until packing plants began
operating at full capacity about July 1 and continued until
August 10. Sweeney was aware Khakh Farms sold raspberries on a
fresh market basis and agreed some berries could be picked as
late as August 15 and commented that a cooperative owned by a
packing house often received fruit later than privately-owned
operations. If a farmer uses a mechanical picker - featuring
vibrating nylon fingers and a catcher plate - it will operate
every two or three days - in the same field - from the beginning
of the season until the harvest is done. With regard to blueberry
plants, Sweeney stated they are slow to yield berries even in the
hands of a competent grower and it might take 5 or 6 years to
obtain decent production. It also might take 7-10 years before a
high yield of 20,000 lbs. per acre could be achieved. Three years
after planting, a light crop of about 3,000 lbs. per acre could
be expected but a 10-year old plant - now 5-8 feet high - could
continue to produce for another 30 years and beyond if not
affected by disease and if the variety remained commercially
viable. In Sweeney's opinion, about 10% of blueberries were
picked by machine in 1996. He considered July 7, 1996 was the
date upon which significant berry harvest began - in order to
supply packing houses - because any earlier harvest was destined
for the small fresh market. Sweeney stated that - in 1996 - there
were two agencies - licensed by a marketing board established by
the provincial government - that purchased turnips and all
growers had to be licensed by a regulatory authority. Other
regulated crops included onions, some types of carrots,
cauliflower, potatoes, cabbage - both red and green - and lettuce
but did not encompass broccoli, corn, squash and some other types
of vegetables. Unlicensed growers of regulated crops were
permitted to sell their produce directly to the consumer, usually
at roadside stands. Sweeney stated the dates used by him in
preparing his report - Exhibit R-41 - were based on historical
data with a view to paying attention to 1996 weather conditions.
As for the effect of temperature on soil, he stated the ground is
cooler than the air during summer and in winter the soil could
often be warmer than air but only for a relatively short period
because cumulative cold over a two or three-week period, will
cause the soil temperature to drop. He added that air temperature
damages crops because colder air sinks and remains close to the
ground where it causes the most damage. As a result, if 1.1 C -
by way of example - is the temperature recorded by a measuring
device a few feet above the surface, the temperature at ground
level would be colder but the soil would probably still be
warmer. However, on November 22, 1996, the temperature in
Richmond fell to minus 5.4 C which would freeze the ground
up to one inch below the surface. With such temperatures, even
hardy crops like daikon can be rendered unmarketable because the
portion above the ground is damaged and it is too much trouble to
cut off that portion and market the rest. Sweeney agreed that the
temperatures up to November 15, 1996 would not have caused
much crop damage. He recalled visiting Gill Farms where
raspberries, strawberries and various vegetables were produced.
On that farm - like many others - raspberries were also picked by
machine but all strawberries were picked by hand. In Sweeney's
experience, the entire fruit industry remunerates pickers on a
piecework basis except for a few workers who may be paid by the
hour for picking those berries sold in the top-end market. In the
course of his employment, Sweeney visited the Purewal Farms
blueberry fields and its packing house. He also visited Min Ho
Farms - in Richmond - and recalled the proprietor grew a whole
range of vegetables. The most common areas for vegetable
production were Delta, Cloverdale, Abbotsford and Yarrow.
Richmond was less important in terms of total volume because the
farms tended to be smaller. Since costs, yield, and price
received for product vary from year to year, the volumes produced
must be high because exceptional yields are often offset by lower
world prices and the grower may incur a loss overall. Sweeney
referred to Exhibit R-43 and pointed to recorded temperatures on
November 11, 1996 - 16.3 C - and on November 18, 1996 when the
maximum was only 1.4 C. From November 16 to 24 - due to an
unusual arctic outflow - the highest daytime temperature was 4.9
C and a low of minus 6.6 C was recorded on November 23. In the
Abbotsford area, between November 16 and November 23, there were
accumulations of 5 cm. to 33 cm. of snow on the ground
whereas the ground in the Richmond area was mostly clear except
for a 3 cm. accumulation of snow on November 20th and 21st,
reduced to 1 cm. by the 24th and disappearing the next day. In
terms of agricultural practices, Sweeney stated the strawberry
season moves from east to west in the Fraser Valley and 90% of
all raspberries are grown in the Abbotsford area. Depending on
the time of planting, radishes can be harvested within 3 to 5
weeks and a grower could plant radishes after August 1 and
harvest 4 weeks later. If planted as early as March 1, they could
be ready for picking by mid-April. Cucumbers that were
transplanted are ready earlier than those seeded directly to the
ground but even those can be picked at the end of July if seeded
by May 15. Since the growing period for most vegetables is
between 70 and 80 days, farmers do 3 plantings with the last
one undertaken as late as July 1, although most growers would
prefer to finish it earlier. Sweeney stated the planting and
harvesting dates used in his report are "windows of time" during
which various crops can be planted and harvested. The timetable
therein is not intended to be referenced on a per-crop basis
since 3 crops could be grown within that time frame. Turnips are
often harvested, stored and sold later as market conditions
permit but most growers attempt to harvest - and sell - all
vegetables by the end of October since the unsold crops must be
stored at temperatures of 2 C or 3 C.
[142] Michel Fontaine was called to the stand and
questioned by Johanna Russell, counsel for the respondent.
Fontaine testified he is an employee of HRDC working out of the
Burnaby office. He is currently an Investigation and Interviewing
Control Officer but earlier - including 1996 - he was an
Investigation and Control Officer (ICO). He started working
as an Insurance Agent - in 1981 - for the predecessor agency of
HRDC. It was an entry level position involving calculation of
claims, liaison, interviewing clients and after 18 months he
assumed the role of Employment and Insurance Officer which
incorporated his former function but added the responsibility for
job searches. Between 1986 and 1994, he worked as an
Insurance Officer - a higher position - and made decisions on
various aspects of the unemployment insurance system as they
related to entitlements for benefits including the reasons for
termination of the employment of a claimant. In 1994, he was
assigned the position of Interviewing Officer in which he
adjudicated certain aspects of entitlements to benefits and in
November, 1996, began working as an ICO. He held that position
throughout the period relevant to the determination of the within
appeals. Prior to assuming that role, Fontaine had no previous
experience with claims from farm workers and - early in 1997 -
took some training relevant to his new position. Files were
assigned to him at random - usually based on the last digit of a
claimant's SIN number - and he conducted wide-ranging
investigations of employment situations in which he interviewed
employers and employees. The first file involving a SRC worker -
Exhibit R-1, tab 23, p. 119 - was referred to him by a Claims
Officer due to certain peculiar factors such as the late end date
of employment - January 17, 1997 - and the amount of weeks
allegedly worked by the claimant which matched the minimum
requirement in order to qualify for UI benefits. Fontaine stated
he interviewed the claimant and contacted R.S. Bains, who
operated a bookkeeping service retained by SRC to handle the
paperwork concerning the employment of workers. Fontaine stated
he was advised that all the documents pertaining to SRC
operations had been transferred to a bankruptcy trustee - Gina
Bollen - who was handling the bankruptcy of SRC. On February 26,
1997, he went to Bollen's office, displayed his identification
card - Exhibit R-44 - and pursuant to authority contained in
Employment Insurance Act obtained boxes of SRC records
which he transported to his office in Burnaby. Fontaine copied
relevant documents in order to return originals to the trustee
and stated that in the course of searching through the records,
it became obvious that the total amount of wages - $795,358 -
allegedly paid to employees - by SRC - according to the T4
Summary of Remuneration Paid - Exhibit R-1, tab 3 - was nearly
twice as much as the total revenue - $414,459.96 - deposited to
the SRC bank account between April 1 and December 31, 1996.
According to that Summary, remittances in the sum of $160,642.51
should have been sent to Revenue Canada but only $3,724.74 had
actually been paid by SRC. Fontaine prepared a Summary of Account
Transactions - Exhibit R-1, tab 28 - together with other
schedules in which deposits were summarized and the sources of
cheques payable to SRC were listed. He also prepared a schedule
of SRC employees - Exhibit R-1, tab 5 - from various sources
including a handwritten list discovered in one of the boxes of
SRC records. Fontaine stated he discovered other HRDC offices -
in Surrey, Vancouver and as far away as Brampton, Ontario - had
also received dubious claims from former SRC workers. As a
result, he discussed with his superiors the advisability of
referring the SRC matter to the Major Fraud Unit (MFU) that
investigates claims arising from employment throughout
British Columbia and Yukon. He contacted an individual at
MFU only to be advised that agency was not willing to undertake
any investigation regarding employment of farm workers - by SRC -
and suggested he discuss the issue with Bernie Keays, an Appeals
Officer employed by CCRA. Fontaine contacted Keays who referred
him to Richard Blakely - a senior Rulings Officer - and Fontaine
met with Blakely in order to discuss the SRC matter. Fontaine
stated it was important to note that Blakely had not issued any
rulings leading to the within appeals as all of them were issued
by Janet Mah. Fontaine stated he followed the suggestions of his
MFU contact and - after obtaining approval from his superiors -
communicated with other ICOs in the Lower Mainland in order to
coordinate efforts in the course of an ongoing investigation of
numerous claims. He obtained permission to transfer his regular
workload to co-workers in order to devote his efforts on a
full-time basis to the SRC matter. Even though he concentrated on
that file, he had no authority over other ICOs or HRDC personnel
assisting in the SRC investigation and - instead - fulfilled the
role of coordinator/facilitator. Nearly all other local offices
decided to deal with SRC claimants on a coordinated basis
although each remained at liberty to pursue its autonomous right
to decide a particular claim. He prepared an Employee List -
Exhibit R-1, tab 7 - containing names of SRC workers and
identifying those claiming UI benefits, which he distributed to
other HRDC offices in the Vancouver area and to Edmonton, Alberta
and Brampton, Ontario. A decision was undertaken to conduct
simultaneous interviews - with 12-14 claimants - on May 27,
1997 at different HRDC offices. Although Manjit Rana was
notified that HRDC wanted to interview him on that day, he did
not appear. Copies of relevant documents had been obtained from
the office of Bains Tax & Accounting Service (Bains Tax) in
order to be available during interviews. In consultation with
other ICOs, Fontaine drafted a series of questions - as a sort of
template - to be used when interviewing but each ICO was free to
pursue his or her line of inquiry. A system was designed to share
key pieces of information with other ICOs either during a
specific interview or after it was completed. After the May 27th
series of interviews was completed, Fontaine reviewed certain
admissions of irregularities made by some claimants and he passed
this information to other investigators. Subsequently, he
contacted MFU and disclosed the significant results of that round
of interviews but - again - the management of that fraud
investigation unit declined to pursue the matter, ostensibly due
to a massive workload investigating persons suspected of
obtaining SIN numbers fraudulently. Following the interviews on
May 27, each ICO was free to decide whether to conduct further
interviews with the same claimant and the complete notes of some
entire subsequent interviews were forwarded to him by some ICOs
while others merely sent him relevant portions thereof. He
prepared a schedule - Exhibit R-1, tab 22 - on which he noted
details of employees, dates worked, and identity of their drivers
together with other relevant pieces of information obtained
during interviews. That list formed part of material used during
discussions held by 12 ICOs during their first formal meeting on
December 2, 1996 (Exhibit R-3, tab 70). The consensus was to
conduct further interviews with the SRC drivers and the
investigators met on January 29, 1997 where certain strategy was
discussed - Exhibit R-3, tab 79 - and sample follow-up questions
- prepared by Fontaine - were submitted to the group. Fontaine
stated the general mood shared by many ICOs was to conclude the
investigation because it was consuming time and resources
otherwise required to deal with the regular work flow in their
own offices. Included in the material at Exhibit R-3, tab 79,
Fontaine prepared - at p. 49 - a paper in which he set forth his
premise concerning the deterrent effect of the investigation on
former SRC workers inquiry which seemed to reduce claims by 72.5%
of those persons as compared to 1996. He found this statistic
interesting in view of the fact the majority of those workers had
been long-term claimants prior to 1997 and the estimated
saving of $109,000 justified continuing with the investigation.
Fontaine stated he also considered the possibility - tab 79, p.
52 - that Bant and/or Shindo could be regarded as employers
within the definitions contained in both the former
Unemployment Insurance Act and its successor, the
Employment Insurance Act. Fontaine also presented material
concerning Operation Bluebird, an investigation conducted in
Ontario by HRDC. Although Manjit Rana did not appear for his
interview on May 27, 1997, he walked into the Burnaby HRDC office
- without notice - the following day and was interviewed by
Fontaine. Blakely - a CCRA Rulings Officer - joined the interview
later. Fontaine took notes - Exhibit R-1, tab 31 - and Kal
Tarlal, an HRDC employee acted as Punjabi/English interpreter. A
Statutory Declaration was prepared - tab 32 - and Manjit Rana
signed it after stating he started business activity as SRC on
April 1, 1996 but did not conduct any business between February
26 and that date. At 3:30 p.m. Rana announced he was tired and
wanted to leave, promising to return the following day. However,
he did not re-attend and has not been interviewed since despite
several attempts at serving an Appointment of Interview - Exhibit
R-2 - tab 42 - scheduled for October 24, 1997 and another
- at next tab - requesting an interview on May 25,
1998 that had been served upon an occupant of two different
houses rather than on Rana who was not present. Fontaine stated
he went with Kal Tarlal to an address on East 59th Street in
Vancouver as well as another residence where the notices were
accepted on the basis the recipients would pass them on to Rana
if they saw him. On May 25, 1998, when calling at one address, a
Caucasian male informed Fontaine and Tarlal that even though Rana
lived at that residence, he was not home at that moment. Later, a
letter was received from Grewal and Associates, Barristers and
Solicitors - tab 47 of same Exhibit - advising
Sukhjinder Singh Grewal was acting for Rana and enclosing an
authorization - from Rana - permitting HRDC to disclose
information to their firm. At tab 49 of the same Exhibit,
Fontaine made notes of his conversation with Grewal wherein he
advised him the interview with Rana would probably occupy three
days and noted Grewal wanted the interview to be conducted at the
HRDC Burnaby office. Fontaine described subsequent communications
with Grewal as well as material - tab 52 - that he faxed to him,
including the entire contents of a Questionnaire containing
answers provided by Rana during his only interview. A final
appointment - tab 55 - for an interview was scheduled for
June 16 at the HRDC Fraser St. office in Vancouver. Grewal
wrote Fontaine a letter - tab 58 - on June 16, 1998 complaining
about the pressure being placed on Rana and requesting additional
time to prepare for the interview. On June 19, 1998, Grewal wrote
a letter - tab 60 - to Fontaine stating Rana had no more
documents in his possession. Fontaine stated he attempted twice -
without success - to hold further discussions with Grewal. A
Questionnaire - Exhibit R-2, tab 54 - dated June 15, 1998 was
signed by Rana and returned to Fontaine's office. Regarding his
usual practice during interviews, Fontaine stated he made
handwritten notes on sheets of paper as the interview progressed
and then reproduced the answers within the formal Questionnaire -
Exhibit R-1, tab 33 - the following day or - at the latest - the
day after that. In anticipation of continuing his interview with
Rana the next day, Fontaine prepared certain questions
- Exhibit R-2, tab 62 - in order to assist
him in probing matters at issue and other ICOs contacted Fontaine
to request he put certain questions to Rana pertaining to the
case of specific claimants whose files were under investigation
by their particular HRDC office. Fontaine stated he interviewed
Surinder Kaur Suran - Shindo - on October 17, 1997 and
notes thereof are written on the form entitled Supplementary
Record of Claim in Exhibit R-5 at tab 250. He took a photograph
of Shindo who was accompanied to the interview by her daughter,
Shelly Suran who interpreted on her behalf. Richard Blakely was
present during the interview and Shindo produced a handwritten
note of dates worked by her during her employment with SRC.
Shindo re-attended the office on October 22, 1997 and produced
receipts for cash she alleged had been received from Rana as well
as a copy of her bank book - Exhibit R-5, tab 254 - pertaining to
her Canadian Imperial Bank of Commerce (CIBC) account. Another
interview was scheduled for July 8, 1998 at the Fraser Street
office and an attempt was made to serve the Notice of Appointment
For Interview - tab 255 - personally but she was not at home and
it was left with an English-speaking Indian male who had answered
the door and advised Fontaine he would hand it to her. Fontaine
received a letter - tab 258 - dated July 2, 1998 from Avtar
Dhinsi of the law firm of John Motiuk - Barrister and Solicitor -
advising that he was acting for Surinder (Shindo) Suran and that
she would not be attending any further interviews with HRDC
officers. Fontaine stated Surinder Suran had never been an
appellant in the within proceedings and received a ruling that
her employment with SRC did not constitute insurable employment
because of her non-arm's length relationship with Rana, sole
shareholder of SRC and the nature of their working relationship.
Fontaine referred to notes - Exhibit R-1,
tab 21 - of his interview with Bant on October 15, 1997, wherein
Bant denied having anything to do with SRC and went on to explain
that he had operated BL Farm Contractors Ltd. (BLF) between 1991
until 1995 when the corporation went bankrupt. As a result, he
decided not to have any more involvement in the labour
contracting business and had given away his bus and sold the only
other vehicles he owned previously. Bant denied he assisted his
brother-in-law, Manjit Rana, to run the business and
stated that if he had known Rana was going to start a contracting
business, he would have advised him against it. Blakely - Rulings
Officer - was present during the interview. Fontaine prepared a
Case Presentation - Exhibit R-1, tab 2 - in which he noted that
of the 108 alleged employees hired by SRC during 1996, 101 had
filed claims for UI benefits and - at tab 7 of said exhibit -
listed the names of claimants and recorded other pertinent
information. At the following tab, Fontaine referred to a
Chronology of Events he prepared in order to track the activities
of Rana, beginning in 1995 when he was an employee of BLF, and of
SRC, from the date of the incorporation - February 26, 1996 -
until April 2, 1997, when the bank account at the TD bank was
closed. On March 21, 1996, Rana applied to Revenue Canada for a
business registration number which is required for remittances of
employee deductions. The first day of business for SRC -
according to a Workers Compensation Board (WCB) application form
completed by Rana - was April 1, 1996 and by April 13, the report
to WCB indicated SRC employed 20 workers and that the expected
payroll for the year would be $50,000. Fontaine referred to a
Statement of Account for Current Source Deductions - Exhibit R-1,
tab 14 - issued by Revenue Canada - to SRC - on September 20,
1996 in which it acknowledges receipt of information that SRC had
no current employees and advising that if the company should have
employees in the future, a certain form is required to remit
deductions. According to the Farm Labour Contractor Licence -
Exhibit R-1, tab 16 - issued by the Ministry of Labour,
Employment Standards Branch of the Province of
British Columbia on July 22, 1996, SRC was authorized to
carry on the business of Farm Labour Contractor and could employ
a maximum of 50 workers. Fontaine referred to the Bankruptcy
Application Form - Exhibit R-1, tab 19 - in which Rana stated SRC
ceased business operations on December 31, 1996. Fontaine stated
that during the course of an interview, Rana said he had no time
sheets and paid employees in accordance with their own record of
hours worked. Rana also stated that SRC used about $150,000 in
source deductions to pay other operating expenses. Of the 108
alleged employees, all were interviewed by HRDC investigators at
least once except for two who were no longer in Canada and
one person who had died. The consensus gleaned from these
interviews was that most workers and/or farm owners did not know
Rana. Fontaine stated that as a result of the investigation of
SRC employment practices, HRDC concluded 16 persons had
received a total of 17 ROEs that were false in one manner or
another in that 7 of the records stated inflated weeks of
employment, others were issued in relation to 5 workers who
either had never been paid or had returned part of their wages to
SRC and another 5 ROEs were issued to individuals who ever worked
for SRC. In addition, some workers admitted they had purchased
their ROEs for amounts ranging from $1,000 to $3,000. Fontaine
stated that during the interview - Exhibit R-1,
tab 33 - when Rana was confronted with the issue arising from
receipts - Exhibit R-1, tab 29 - issued to persons - some of whom
confessed to having purchased their ROE - Rana admitted - at
Exhibit R-1, tab 33, Q. 20 - that those receipts were issued to
acknowledge payment received for the purchase of an ROE. However,
when asked to state that information in the form of a Statutory
Declaration, Rana recanted and stated not only were the receipts
not issued for that purpose but denied ever saying that they were
related to the issuance of ROEs. Fontaine stated he was able to
track only $343,232 in wages paid in the form of cheques that had
cleared through the TD bank even though the payroll was alleged
to have been in the sum of $795,358 during the period from April
1, 1996 to December 31, 1996. During said period, deposits to the
SRC bank account totalled $414,466.95. Fontaine stated he
reviewed information gathered during the HRDC investigation
including statements by the majority of SRC employees to the
effect they had not been paid any of their wages in the form of
cash. Fontaine stated that according to the SRC T4 summary
provided to Revenue Canada, a total of $160,642.51 in payroll
deductions - including the payer's share of EI premiums and CPP
contributions - should have been remitted but only $3,724.74 had
been paid. Rana advised Fontaine that all payments to SRC were in
the form of cheques and all payments - by SRC - came from that
particular TD account. Fontaine stated the business records did
not support the alleged net pay as stated on the payroll record
prepared by Bains Tax but there had been a cash deposit in the
sum of $2,000 to the SRC account on May 29, 1996 as evidenced by
a copy of the deposits slip (Exhibit R-1, tab 24, p.10). Fontaine
stated a review of SRC business records and other documents
revealed extensive discrepancies between dates used to record
either the first day of work (FDW) or last day of work (LDW) and
some claimants were not in Canada when they were supposedly laid
off. Otherwise, start and finish dates did not match the alleged
task performed with the type of crop at a certain point in the
growing season. Further, the ROEs were based on hourly pay but
all other SRC records indicated it was being paid - by the
farmers - according to weight of berries picked. Fontaine stated
he was not able to locate any SRC records that would substantiate
that any work was done on vegetable farms in Richmond after the
berry season had finished, although Shindo had told him
- during her interview - that she drove people to
Mike's Farm and to the Min Ho Farms in Richmond.
Fontaine stated that after two or three hours of interviewing
Rana, he had come to doubt Rana was the person who had been
operating SRC since he was unable to answer simple questions
about business matters. From reviewing various documents,
Fontaine concluded the sale of blueberries to Purewal Farms was
the source of 19% of total SRC revenue and payments had been in
the form of cheques which were deposited to the SRC account at
the TD bank. In the course of preparing his submission - Exhibit
R-1, tab 2 - to Revenue Canada in which rulings were requested on
the insurability of alleged employment of workers, Fontaine - at
p. 6 - mentioned his interview with Mr. Ahn, the proprietor of
Min Ho Farms. Fontaine referred to his notes of that interview -
Exhibit R-2, tab 37 - prepared on September 15, 1997. Fontaine
recalled Ahn had stated he knew nothing about SRC but was able to
identify a photograph of Manjit Rana who had worked alongside
other workers even though he was a relative of Bant. Ahn told
Fontaine - in the presence of Richard Blakely - that Bant had
difficulty understanding the English language and often
misunderstood Ahn's instructions, causing workers to make errors
when carrying out certain tasks. Ahn advised Fontaine that
Surinder - Bant's wife - also participated in the business. Bant
supplied labour to Ahn in 1995 and Ahn advised that he thought he
probably owed him for some services provided by workers during
the 1996 season but Bant had agreed to wait for payment until
after all the produce had been sold. Although unsure of the exact
amount due to lack of records, Ahn advised Fontaine that he was
paying Bant between $8.50 and $9 an hour for the services of a
labourer. Fontaine stated that according to Ahn, the
last sale of produce from his farm occurred on November 24,
1996 and a Sales Receipt book was produced to confirm that
transaction. Ahn advised his main crops were zucchini and lo bok
and stated he had not grown any cauliflower or potatoes in 1996.
Fontaine advised he was not able to obtain any information from
the proprietor of Mike's Farm relevant to 1996 and the employment
of workers involved in the within appeals. Fontaine stated he
obtained copies of cheques issued by Purewal Farms to SRC as well
as copies of delivery slips for the purchase of blueberries from
SRC (Exhibit R-2, tab 39). In total, Purewal Farms paid SRC the
sum of $77,036.86. The bank records of SRC confirmed the deposit
of that revenue except for the amount of $7,208. Fontaine stated
he also interviewed Peter Kliewer, a farmer who issued cheques -
to SRC - totalling $13,250.53, in payment of labour services.
Payment was based on total weight according to records made at
the scales. According to Fontaine's notes - Exhibit R-2, tab 40 -
Kliewer recalled Bant had provided about 20 workers who were
driven to work - by Bant - in a brown van. Fontaine stated he
contacted M & G Bros. Farms Ltd. - known as Gill Farms - and
ascertained SRC provided labour which was remunerated according
to weight of produce picked. Kanwal Gill - a Gill Farms employee
- advised Fontaine the workers were brought to the farm by a bus
in order to pick both raspberries and blueberries and between 30
and 60 workers were required. A total amount of $40,395.06 in the
form of cheques was paid to SRC for its labour supply, including
a bonus in the sum of $500. A summary was prepared by Fontaine at
Exhibit R-2, tab 41, p. 9. Picking cards were retained by Gill
Farms and copies were provided to Fontaine including those
bearing the names of the following appellants in the within
appeals: Bhagwant Grewal, Ajmer Kaur Gill, Taro Bassi and Gian
Thandi. Fontaine stated that from records provided by 4 farms he
contacted, he was able to calculate that blueberry sales had
accounted for 35% of the gross revenue of SRC in 1996 and farm
labour supply made up the balance although he could not reconcile
the amounts to those alleged in various SRC business documents.
Fontaine stated he assembled a set of 112 ROEs - Exhibit R-1, tab
23 - issued by SRC. When issuing an ROE, the employer retains a
copy and sends another to an HRDC office in Bathurst, New
Brunswick. The remaining copy is given to the employee who must
submit it when applying for UI benefits. Fontaine stated he
interviewed Binder Chahal and Harjit Gill in relation to their
tasks as drivers for SRC. He recalled Gill produced documents -
including an Air India ticket - to prove he left Canada on
October 11, 1996 and did not return until December 15, 1996.
Fontaine stated because the budgets at local HRDC offices were
limited, the decision was made to retain the services of court
certified interpreters only for those interviews of persons
deemed to be key to understanding the SRC situation. As a result,
a lack of proper funding caused local HRDC offices to rely on the
services of their own Punjabi-speaking employees or on
interpreters provided by the claimants who attended with a friend
or relative to assist them during an interview. With permission
of the interviewee, Polaroid photos were taken.
[143] Fontaine referred to his interview with Bhagwant
Kaur Grewal - Exhibit R-34, tab 93 - on
November 10, 1997 and recalled her son had interpreted on her
behalf. Fontaine stated he recorded answers as they were provided
through the interpreter including the one to Q. 10 in which she
stated Harjit Gill drove the bus, Binder drove the red van and
the grey van was driven by Shindo. Fontaine stated he recorded
Grewal's answer to Q. 7 in which she said she had not picked
blueberries or raspberries and had "mostly worked with
vegetables". Fontaine noted Grewal stated she had not worked in
Abbotsford or Chiliwack when responding to Q. 8 and recorded her
explanation concerning method of payment - Q. 18 - that she
received a cheque after two weeks of work and was given 3 or 4
other cheques which she took to the SRC bank - TD - but was
unable to cash them due to insufficient funds in the account.
Fontaine stated he wrote down her explanation that she was owed
approximately $3,000 on her last day of work and was paid small
amounts of cash thereafter until paid in full about 4 months
later. Grewal's answer to Q. 19 about her hours of work is noted
as "worked 6 days per week. Mostly had Sundays off, sometimes a
week day. Always had one day off per week".
[144] Fontaine referred to his interview - Exhibit R-29,
tab 91 - with Bakhshish Kaur Thandi on February 16, 1998.
The interview was conducted in the presence of Kal Tarlal, a
Punjabi-speaking HRDC employee. The warning
- tab 92 - was interpreted by Tarlal to
Thandi who produced her Indian passport as identification. Later,
Thandi's daughter - Maninder - was brought into the interview
room and confirmed that her mother had not been paid for her
work. The ROEs for both Bakhshish Kaur Thandi and her husband -
Gian Singh Thandi - show insurable earnings in the sum of $7,840.
Fontaine recorded the statement by Maninder that neither of her
parents were aware they were doing anything wrong by working only
to obtain their "weeks paper" in order to qualify for UI
benefits. On February 20, 1998, Fontaine sent Bakhshish Kaur
Thandi a copy of his interview notes - Exhibit R- 29, tab 102 -
in accordance with a practice he had developed as the
investigation progressed. Fontaine stated HRDC policy is to
terminate an interview if the person wants to leave, and Thandi -
who was complaining of a fever - was so advised. Fontaine stated
he was not aware of any interpretation difficulties arising
between that appellant and Kal Tarlal during the course of the
interview. Fontaine stated he recorded Thandi's response - to Q.
18 - that she received a cheque, cashed it and gave the money
back to the employer and that she had worked the whole season
just to "get the weeks". Fontaine stated he was careful to note
her statements since she was the first SRC worker to admit they
had worked only for the ROE and had not been paid. Fontaine
recalled that during the interview, Thandi had repeated in
different context on several occasions - including the
answer to Q. 32 - that she had not been paid for her work and
those assertions were confirmed by her daughter, Maninder who
advised Fontaine she was responsible for her parents' finances
and was not aware of any loans by Bant. Fontaine noted Thandi's
answer - to Q. 20 - where she agreed she used picking cards but
threw them away "once everything was settled". At Q. 17, she
stated the payment was based on the flat which was at a different
rate for different berries. Fontaine noted she said she worked
only at picking berries without mentioning any work done on
vegetable farms. He requested that she bring in statements for
the VanCity account which were produced later - tab 96 - in the
context of her husband's appeal.
[145] On February 16, 1998, Fontaine interviewed the
appellant, Gian Singh Thandi. Kal Tarlal was present
and interpreted the proceedings into Punjabi. Fontaine stated
Gian Singh Thandi was informed of the purpose of the interview
and advised he was free to leave the room at any time. The
warning - Exhibit R 30, tab 92 - concerning
the potential application of penalties or prosecution for
knowingly making false statements was interpreted by Tarlal. At
the conclusion of the interview - tab 93 - the contents were
reviewed with Thandi who stated he had nothing to add. In
responding to Q. 18, Thandi stated he was paid every two weeks -
in cash - by Manjit Rana. Further along in the interview, Thandi
said Rana had given him a $5,000 cheque but could not recall
whether it had been received before or after he stopped working
for SRC. In answering Q. 29(g), he stated he did not pay any
money back to Rana. On February 18, 1998, Fontaine interviewed
Thandi and confirmed the accuracy of his notes
- Exhibit R-30, tab 96 - which recorded
that Thandi's daughter - Maninder Mangat -
was present and Kal Tarlal acted as interpreter. Fontaine stated
he reviewed some of the questions and answers from the interview
two days earlier and pointed out certain inconsistencies compared
to information obtained during interviews with his wife and
daughter. Concerning the cheque - tab 89 - for $5,000, which was
not negotiated until December 16, 1996, even though it was dated
September 15, 1996, Thandi stated he cashed that cheque at the
49th and Fraser TD bank. He advised Fontaine that he kept the sum
of $1,000 and paid $4,000 to Bant. He then told Fontaine that
Bant repaid him that sum of $4,000 - in cash - at some future
point which he could not recall. Fontaine stated he asked Thandi
why he stated he was paid every two weeks when that was obviously
not true and Thandi replied - at p. 5 - that he was " dizzy" at
the time and intended to talk about the UI payments he received
every two weeks. He agreed SRC did not pay him every two
weeks.
[146] Fontaine stated he interviewed Inderjit Singh
Atwal in relation to his alleged employment from December 29,
1996 to January 11, 1997. The interview took place on June 12,
1997, and the notes are in Exhibit R-9 at tab 89. Sarb Sandhu
- certified court interpreter - interpreted the
questions into Punjabi and the answers into English. Fontaine
stated he had reviewed Atwal's file and noted Atwal had a total
of 24 weeks employment from two different employers but needed 26
weeks to qualify for UI benefits. Fontaine stated Atwal signed a
Statutory Declaration - tab 90 - before Claire Turgeon
rather than him because his own Commissioner of Oaths appointment
had not been issued at that point. During the interview, Atwal
told Fontaine he worked with his driver - Bant - at various
locations and rode to work in a bluish van. He said he worked
Saturday and Sunday and did not record his hours of work. He told
Fontaine that he always worked outside and wore a raincoat. When
informed by Fontaine that two feet of snow had fallen during this
period, Atwal replied that all the work was done indoors and he
helped Bant install drywall in the new houses. On June 13, 1997,
Atwal attended at the HRDC office to advise he could not find a
copy of the cheque received from SRC. Kal Tarlal acted as
interpreter and Fontaine took notes - tab 91 - of the discussion
during which Atwal submitted a list of days and hours worked that
had been given to him by Rana. When showed a photograph of Rana,
Atwal initially stated it was Rana but then said it was
Bant. Fontaine pointed out to Atwal that he had offered up
several versions of the work allegedly performed for SRC during
that short period of employment. At p. 4, Fontaine recorded an
explanation from Atwal that he had performed farm labour work -
in January - and not construction. Fontaine interviewed Atwal
again on February 17, 1998 - Exhibit R-9, tab 93 - and
Kal Tarlal interpreted the questions and answers. During
this interview, Atwal stated he picked potatoes for SRC for a
two-week period earlier than December, 1996, but did not receive
an ROE for that particular employment. Fontaine stated that
according to the ROE issued by Territory Seafoods to Bant Suran
he worked for that company full time from December 5, 1996 to May
5, 1997 and had worked 28.5 hours for the period ending January
11, 1997, including January 3rd, 5th, 6th, 9th, 10th and 11th,
days when Atwal maintained Bant had either been driving him to
work and back home and/or working with him on occasion. Fontaine
stated there is a threshold of insured hours worked which gives
rise to an entitlement to UI benefits and that only the last
20 weeks of work are used to calculate the amount of the benefit
payment.
[147] Fontaine stated he interviewed Jaswinder Singh
Bassi on December 5, 1997, and took notes (Exhibit R-11, tab
102). Another interview took place on December 19, 1997 and
Fontaine recorded Bassi's answers on a Supplementary Record of
Claim at the following tab. Kal Tarlal acted as interpreter and
interpreted the warning to Bassi. At the conclusion of the
interview, Tarlal reviewed the contents with Bassi - in Punjabi -
and Bassi signed at the last page of the document. During the
interview, Bassi stated he planted cauliflower for 3 days and
worked outside. He said he worked 7 days a week when picking
berries but worked Monday to Saturday in December. Fontaine
stated the answers were recorded accurately as the interpretation
was provided to him by Tarlal. Fontaine showed Bassi a photograph
of Rana but Bassi was not able to identify him. During the
interview - tab 103 - in answering Q. 17, Bassi stated he was
paid by the flat for picking strawberries and raspberries but was
paid by the hour for working on the vegetable farms. At Q. 32,
Bassi told Fontaine he received a cheque - in the sum of $4,000 -
from Shindo and cashed it at the CIBC bank, also located at 49th
and Fraser in Vancouver. Bassi also stated in the same answer
that he had not received any cash. According to Bassi's pay
statement - Exhibit R-11, tab 93 - he earned $4,040 after
deductions. During an interview - tab 94 - on December 9, 1997,
where Kal Tarlal interpreted, Bassi told Fontaine he was mistaken
when he said - at an earlier interview - he had
deposited a $4,000 SRC cheque to his account. Instead, he stated
he had received a cheque in the sum of $4,040 and took out $3,000
cash and deposited only $1,040. He told Fontaine the cash was
used to pay rent - $700 - and to buy groceries. Fontaine referred
to an entry on the photocopy of a CIBC bank statement for Bassi's
account which indicated there was a $3,000 deposit on January 10,
1997 followed by a $3,300 withdrawal two days later. Fontaine
stated no such cheque - in the sum of $4,000 or $4,040 - was ever
located when searching through SRC records, including statements
on the TD account which was the only one used by that
company.
[148] Fontaine stated he calculated the amount of work
needed to qualify for UI benefits for various appellants in
the within appeals together with the amount of overpayment -
according to HRDC - and the amount of the penalties imposed
administratively by the relevant Insurance Officer in accordance
with the provisions of the Act, as follows:
Name of
appellant
Weeks to qualify
Overpayment
Penalty
Total
Sharinder Singh
Bagri
17
$2,582
$1,601
$4,183
Ajmer Kaur
Gill
26
$4,784
$1,664
$6,448
Bhagwant Kaur
Grewal
17
$2,752
$1,576
$4,328
Varinder Kaur
Jassal
26
$4,862
$1,497
$6,359
Prabhjot Kaur
Minhas
20
$5,934
$1,935
$7,869
Bakhshish Kaur
Thandi
17
$4,320
$1,404
$5,724
Gian Singh
Thandi
17
$980
$544
$1,524
[149] Fontaine pointed out that in the case of Prabhjot
Kaur Minhas, she needed 20 weeks employment if her claim for
UI benefits was based on maternity leave. Overall, 98 files were
submitted to CCRA for a ruling. Other files were decided within a
particular HRDC office because there was proof that the ROE
issued by SRC was false or other factors had caused a decision to
be made that the employee was not engaged in insurable
employment. Fontaine stated that when requesting a series of
rulings, he forwarded material to Janet Mah which included notes
made by Richard Blakely - CCRA Rulings Officer - when he
participated in interviewing some appellants. Fontaine stated all
98 rulings were issued by Janet Mah and his contact with her was
sporadic and only for the purpose of ascertaining the progress of
the rulings process. In a similar fashion, when the rulings
issued by Mah were appealed to the Minister, the appeals were
conducted by Bernie Keays - Appeals Officer - and Fontaine stated
he had spoken to Keays on the telephone during April or May, 1997
and had no contact since. Fontaine stated he created the document
- Exhibit R-47 - in which he listed - in schedule form
- the results of the rulings issued by Janet Mah from time to
time in batches. As a result of the rulings, the Insurance
Agents/Officers in various HRDC offices made decisions based
thereon including calculation of overpayment of UI benefits
and/or whether a penalty should be imposed and if so, in what
amount. A penalty of $186,000 was imposed by an adjudicator
against SRC and Rana, jointly and severally pursuant to the
provisions of the Act but a policy decision was made not
to proceed against Bant and/or Shindo on the basis that they had
held themselves out to be an employer while working with SRC.
[150] The witness - Michel Fontaine - was cross-examined
by Darshen Narang, agent for the appellants first named in the
within style of cause. Fontaine stated he worked as a sales
representative prior to joining the federal public service in
1981. He received training in the course of his first assignment
as an Insurance Agent. Later, when occupying the position of
Insurance Officer, he studied material over the course of several
weeks in order to become familiar with the relevant case law as
it applied to the exercise of his jurisdiction and to learn how
to write decisions concerning contentious issues such as
entitlement to benefits in circumstances where a worker had quit
a job or in situations where it was required to determine the
extent of benefits, perhaps flowing from a claim based on illness
or maternity leave. As an Insurance Officer, he decided whether a
person was justified in leaving his or her employment and, if
not, to determine the period of disqualification - if any -
before the claimant was entitled to UI benefits. In the course of
making such a decision, Fontaine stated he reviewed the relevant
ROE, obtained a statement from the claimant and delved into the
issue that allegedly caused the worker to leave his or her
employment, often some course of conduct attributable to the
employer. Fontaine stated he also reviewed documents such as pay
stubs, statements from co-workers and other relevant information
and - on occasion - had to create an interim ROE because the
employer had either not supplied one or simply refused to do so
under the circumstances. There were other circumstances in which
an employer had gone bankrupt or merely closed down a business
and it was necessary to create ROEs for employees based on
available records including bank statements, deposit slips, pay
records and similar documentation. In November 1996, Fontaine
assumed the role of ICO and received special training in January,
June and July, 1997, in the context of in-house training carried
out in Vancouver. Fontaine stated he had some experience dealing
with farm workers during the course of his earlier employment at
HRDC but that group occupied less than 5% of his workload. While
undergoing training as an ICO, Fontaine stated he was required to
pay attention to details disclosed within the ROE and the
subsequent application for UI benefits and to determine whether
the claimant and employer were related and to examine the
circumstances relevant to termination of the employment in
question. He also looked at the start and end dates of the
employment to determine whether they matched the nature of the
work done as - by way of example - one would not expect someone
to be working as a lifeguard on a Vancouver beach during the
month of November. On some occasions, it turned out a claimant
was working while collecting UI benefits or he might be called
upon to verify employment if a claimant had since moved to
another province and filed the claim in that jurisdiction. Now
and then, a claim had to be adjusted because the recipient was
also receiving CPP benefits. Fontaine stated he spoke with senior
investigators in order to obtain advice and discussed certain
matters with his supervisor. In the course of carrying out his
duties as ICO, he issued, when required - to banks, employers,
accountants - a document entitled Requirement to Provide
Information which imposed a legal obligation on the person or
entity receiving said notice to produce certain documents listed
therein. Fontaine stated various sections of the Act
permitted ICOs to issue demands for information in order to
discharge a particular function within their jurisdiction.
Fontaine explained that even though the new Employment
Insurance Act came into force on July 1, 1996, certain
transitional provisions permitted the ongoing use of the specific
number of weeks worked - for purposes of qualifying for UI
benefits - until December 31, 1996. However, the new regime
required work to be measured in hours and no minimum number of
hours per week or month was any longer required in order to
accumulate insurable hours of employment. Fontaine recalled that
a claimant - in 1996 - needed 26 weeks of work to become eligible
for UI benefits except for claims based on maternity
entitlement or illness or other special circumstances peculiar to
economic conditions within a particular region. Concerning
contact between himself and employees of CCRA, Fontaine stated he
had some interactions with Rulings Officers between 1981 and 1986
in the context of requesting rulings but between 1986 and 1994 -
while employed as an Insurance Officer - he was not required to
deal with that agency. Fontaine stated he began working on the
SRC matter in February, 1997 after his office received a referral
from an Insurance Agent concerning a particular file. The ROE for
this particular claimant - Exhibit R-7, tab 428 - purported that
a worker had been employed - by SRC - as a farm worker for 17
days in January, 1997. An application for UI benefits - tab
444 of same exhibit - was filed but an Insurance Officer issued a
Stop Pay to suspend benefits pending further investigation.
Fontaine stated he interviewed the worker (not an appellant in
the within appeals ) but the larger-scale investigation of SRC
did not commence until records obtained from the bankruptcy
trustee not only failed to substantiate the claim of the worker
in question but pointed to the need for a wider investigation.
Fontaine stated his contact with Bains Tax -because that
entity was named on the ROE - led to the office of the bankruptcy
trustee where he was able to obtain originals of various
documents. Fontaine stated he continued to work on other files
until the end of April, 1997, when he was assigned to work full
time on the SRC investigation. Fontaine stated he attempted to
contact Rana on May 1, 1997 by sending an Appointment for
Interview - Exhibit R-1, tab 30 - requesting him to attend the
HRDC Burnaby office on May 8, 1997. He also attempted to
contact Rana by contacting a pager number he had discovered while
searching through documents in the boxes obtained from the
trustee. Fontaine stated he was aware Rana had made a claim for
UI benefits based on his employment with Bant in 1995. As a
result of the information accumulated and in becoming more
familiar with the scope of the SRC situation, Fontaine spoke to
his Supervisor - Tom Ksik - who accompanied him to a meeting - in
late April, 1997 - with officials of the MFU where Fontaine made
his submission - based on a case summary he had e-mailed earlier
- designed to obtain a commitment from MFU to assume conduct of
the SRC investigation. Fontaine stated the refusal by MFU to
assume responsibility for the SRC matter led him to contact other
HRDC offices in the Lower Mainland and to provide them with
certain material relevant to a specific person who had been
questioned during the first round of 14 interviews conducted on
May 26, 1997, at various HRDC offices. He reviewed notes of most
of the interviews and e-mailed other ICOs at other offices in
order to keep them current and to receive reports and copies of
other interviews conducted subsequently. Fontaine estimated the
ICOs conducted over 100 interviews and he perused notes
pertaining to between 45 and 60 of those sessions. When reviewing
the ROE - Exhibit R-7, tab 428 - for a certain worker, Fontaine
noted the contact telephone number was for R.S. Bains at Bains
Tax even though the form had been signed by Rana. Fontaine made
notes - Exhibit R-4, tab 3 - of his interview with Ranjit S.
Bains, owner of Bains Tax and also of his discussions with
Amanjit Kaur Dhesi, an employee of that entity. Fontaine noted
that Bains stated his firm did the payroll for SRC at the end of
the year and - on January 15, 1997 - submitted a final invoice in
the sum of $3,210 but the SRC cheque - tab 5 - was returned NSF.
Amanjit Dhesi told Fontaine she calculated workers' earnings at
the end of the working season based on time records provided by
Rana who had recorded hours in a "blue book". Dhesi stated she
used software in her computer to calculate earnings and produce a
pay statement in accordance with the information she inserted
into the program. Dhesi stated she produced an ROE only when
requested by Rana. The bankruptcy application - Exhibit R-1,
tab 19 - was in the name of Manjit Rana - personally - and
Fontaine spoke with Gina Bollen, a member of the firm David G.
Kanester & Associates Inc. - Trustee of Bankruptcy - in order
to discuss certain matters. In the application, Rana stated he
operated SRC from January 11 to December 31, 1996. Bollen advised
Fontaine that Rana owed $4,000 in taxes and approximately $61,000
in GST which led Fontaine to assume the personal bankruptcy - as
opposed to the dissolution of SRC, the corporation - was in
contemplation of personal liability flowing from his position as
sole director of SRC. A Certificate of Official Receiver of
Appointment of Trustee - Exhibit R-1, last page of tab 19 - was
issued on March 14, 1997, in respect of Manjit Singh Rana.
Fontaine stated that Rana did not attend the interview scheduled
for May 26, 1997 but showed up - without notice - the following
day when he was interviewed - Exhibit R-1, tab 33 - and answered
questions Fontaine had prepared in advance. Blakely - from CCRA -
was present during this interview and made his own notes (Exhibit
R-3, tab 67). Kal Tarlal acted as interpreter and the interview
lasted from 10:30 a.m. until 3:00 p.m. when Rana asked to
conclude the interview the following day. Fontaine recalled
Blakely arrived in the interview room following Q. 6 in the
template and in order to keep him current, Fontaine returned to
Q.1 and asked the next 5 questions again and Blakely made his own
notes of the responses provided by Rana. Fontaine estimated he
asked about 90% of the questions but Blakely did pose some from
time to time. Rana stated there were no additional invoices to
produce but - perhaps - had some papers in the basement of his
mother's house. Fontaine stated he had learned at an earlier
point that Rana was Shindo's brother. During the interview,
Fontaine noted Rana's responses were very slow, guarded,
contradictory, and vague to the point where Rana was asked if he
had been drinking that morning. Fontaine agreed with Darshen
Narang that he had been asked about that matter during Discovery
and had not been able to recall whether Rana responded to that
question. Fontaine stated he was sitting about 3 feet from Rana
and did not recall noticing any odor of alcohol. As a result of
the strange answers provided by Rana, Fontaine suggested to Rana
it was obvious he was not the real owner/operator of SRC but Rana
asserted he was the owner. Fontaine stated Rana did not return to
complete the interview on May 28, 1997 and was never in
contact thereafter with any HRDC employee despite further
attempts to notify him concerning scheduled interviews. Fontaine
agreed that MFU was advised of the results of the May 26th round
of interviews and - again - declined to pursue the matter.
Fontaine agreed there may have been additional SRC records
somewhere and did not request any payroll information from the
British Columbia Employment Standards Branch. Fontaine stated the
second round of interviews was intended to pursue matters arising
from the ROEs issued by SRC since admissions had been
obtained from several workers either that no work had been done
or, if done at all, then not to the extent shown on those
records. In essence, HRDC was searching for information to
corroborate the claims submitted by workers who had provided no
time cards, picking cards, time sheets, calendars, notebooks or -
in most cases - bank records to substantiate that work was
performed and/or payment was received. Fontaine stated he did not
have much faith in the accuracy of the pay statements - such as
the one in Exhibit R-29, tab 89, re: Bakhshish Kaur Thandi -
prepared by Bains Tax. Fontaine stated he knew Rana was the sole
shareholder of SRC but the nature of the answers provided by Rana
during the interview caused him to suspect others had actually
operated the company. However, Rana took the position at Q. 2 of
a Questionnaire - Exhibit R 2, tab 54 -
dated June 15, 1998 and forwarded by his lawyer to Fontaine -
that Bant "has no role in the company and is not a share holder".
In responding to the next question about the role played by
Surinder Suran, Rana stated, "she was an employee. She used to
drive the van and worked there". In that Questionnaire, Rana
confirmed he was the sole signing authority on the corporate bank
account and denied selling ROEs to any individuals. Fontaine
recalled he contacted Bernie Keays at some point because it was
apparent following the first round of interviews on May 26, 1997,
that it would become necessary for HRDC to request rulings from
CCRA as to whether the SRC workers had been engaged in insurable
employment. Fontaine stated he was aware that some HRDC offices
took the position they would not send those files to CCRA for a
ruling where the claimant had admitted - to an ICO and/or
Insurance Agent - that the ROE was false because the work either
had not been done as stated therein or that the ROE had been
purchased outright in order to permit the person to claim UI
benefits at the end of the farming season. Fontaine stated his
Burnaby office decided to send all files for a ruling including
those where the claimant had admitted the ROE was incorrect
and/or had conceded that they participated in a deception with
respect to the weeks of work or the amount of payment actually
received. By the fall of 1997, the investigation encompassed all
employees of SRC. Fontaine stated although the discrepancies
became more blatant, the further the investigation progressed, he
knew the decisions on insurability would be made by a Rulings
Officer who would be free to investigate further in accordance
with his or her own methods prior to arriving at a conclusion.
According to Exhibit R-1, tab 1, Fontaine submitted 98 files
for a ruling. Fontaine stated he knew other ICOs had spoken with
Blakely during the course of their own investigations,
particularly before interviewing the 8 SRC drivers as
identified on the list at Exhibit R-8, tab 2. Fontaine stated he
interviewed Shindo and Binder Chahal, once alone and another time
in the presence of Jeanie Suric. Chahal informed Fontaine that
SRC also carried on a farming operation, including a leased farm
in Ladner. Fontaine stated he had been aware that about 25% of
total SRC revenue was due to blueberry sales to Purewal Farms
cannery and accepted that some workers may have worked on
properties farmed by SRC through some sort of arrangement with
the landowners. The nature of that aspect of the business was not
clarified by Rana who stated - through his lawyer - that no more
documents were available and in the Questionnaire stated he sold
blueberries for cash and paid some workers in cash. Fontaine
stated he decided not to issue any formal Requirement to Provide
Information because there was no proof that other documentation
existed. Fontaine stated Chahal had been a good source of
information since he had worked for Bant in 1995 and was able to
identify people from a series of photos shown to him during
interviews which occupied nearly two days. Fontaine stated his
personal view with respect to Chahal's situation was that he was
not engaged in insurable employment because he was unable to
demonstrate that he had been paid for his work. With respect to
Fontaine's notes of the interview of Inderjit Singh Atwal -
Exhibit R-9, tab 89 - on June 12, 1997 also attended by Blakely,
Fontaine agreed his notes seem to indicate different questions
and answers than those recorded by Blakely at tab 82. Fontaine
agreed he did not record Atwal's responses verbatim but noted
details of the three different versions of his employment offered
up by Atwal during his interviews. Fontaine stated that in his
opinion it was perfectly clear that Atwal knew he was being
questioned about the two weeks of work allegedly done at the end
of December, 1996 and into January, 1997 and that it had nothing
to do with any farm work that may or may not have been done in
June. Fontaine stated he drew the conclusion Atwal was not
telling the truth. Fontaine stated he contacted various
farmers in order to obtain confirmation that certain types of
work had been done during a particular period as alleged by some
workers. As a result, he was satisfied the last vegetable sale by
Min Ho Farms was on November 24, 1996. He also tracked deposits
and cheques and the flow of money in and out of the SRC bank
account at TD in Vancouver. Transactions through that account
were followed until a zero balance was attained in January, 1997.
Fontaine agreed the deposit slip - Exhibit R-1, tab 24, p. 8 -
indicated the $6,000 deposit on April 22, 1996, was comprised of
two cheques from Rana. He also agreed a subsequent slip - at p.
11 - showed a total deposit - in the sum of $2,150 on June 5,
1996 that was composed of three cheques, one from Rana for
$1,500, one from Bant for $600 and one from Shindo for $50. On
July 22, 1996, the deposit slip - p. 13 - showed a deposit
of $21,000 and indicated the source was "Manjit." Fontaine stated
he thought that sum may have been obtained as a result of cashing
in some sort of term deposit or savings certificate. Fontaine
agreed the records indicated Rana deposited the sum of $31,834 of
his own funds to the SRC account. Fontaine confirmed his
previous calculation that Min Ho Farms paid $13,000 to SRC during
the 1996 season but added Ahn had been dealing with Bant just as
he had done during the previous year when Bant was operating as
B.L. Farm Contractors Ltd. Fontaine agreed SRC could have
provided workers to the Min Ho Farms up to November 24, 1996, the
last day produce was sold but relied on Ahn's statement that he
grew only zucchini and lo bok and not any cauliflower or potatoes
in 1996. Fontaine stated although no recording devices were used
during any interviews, usually he typed up his notes within a day
or two and - rarely - if later, within one week. When
interviewing Peter Kliewer, Fontaine stated he confirmed Kliewer
paid SRC according to the weight of berries picked and that the
total paid for labour was $13,253.32. Fontaine stated that his
inquiries at Purewal Farms led him to conclude that this entity
had purchased only blueberries from SRC and had not purchased any
labour. SRC sent Purewal Farms 3 invoices for berries, the first
dated July 25, 1996 and the last one September 13. One invoice
indicated the rate was $1.00 per pound and another was calculated
at 85 cents per pound. Fontaine stated he did not inquire about
hours of work when speaking with farmers but picking cards were
later produced to Janet Mah in the course of the rulings process.
SRC had been issued a GST number and included GST in its invoices
to Purewal Farms. He also confirmed that Gill Farms advised him
they had paid SRC by the pound for berries picked by its workers.
Fontaine recalled the December 2, 1997 meeting was attended by
several ICOs - and some supervisors - from various local HRDC
offices, and by Blakely and a representative from MFU. The
typewritten material - Exhibit R-3, tab 70 - prepared by Fontaine
summarized the events and the consensus of the meeting to conduct
further interviews of claimants. Possible rulings scenarios - tab
79, p.1 of same exhibit - were crafted by Blakely and formed part
of the material discussed at the meeting including the admonition
at the top of the page that "each case must be judged on its own
merits" and that "there is no such thing as a blanket ruling by
RCT" (Revenue Canada Taxation) that would apply to all workers.
The agenda for the subsequent meeting - tab 79, p. 48 of said
exhibit - held on January 29, 1998, was prepared by Fontaine who
acted as coordinator. Fontaine stated he had some discussion with
Janet Mah about the appropriate date to submit the large number
of files for a ruling and the probable time needed to issue those
rulings.
[151] Counsel for the respondent did not re-examine.
[152] Richard Blakely was called to the stand and
examined by Johanna Russell. For the past 20 years he has been a
CPP/EI Rulings Officer and has been employed by CCRA and/or its
predecessor equivalent for 30 years. He does not speak Punjabi
but has been involved in wider scale situations where numerous
rulings were issued with respect to the same employer. Blakely
created the 15-page document - Exhibit R-3, tab 74 - as a
chronology of his involvement in the SRC matter beginning with an
entry dated April 24, 1997 to record his initial contact with
HRDC. Blakely stated his supervisor asked him to contact Michel
Fontaine who had requested that a resource person from the
rulings office be available to assist HRDC in respect of a
large-scale investigation. Blakely stated he considered his role
was to provide advice about the type of relevant material that
should be submitted to a Rulings Officer in the event rulings
were requested after the investigation was concluded. He
responded to telephone calls from Fontaine and attended meetings
and interviews with claimants, when requested. Blakely stated it
was abundantly clear from the outset that he would not be
participating in any manner whatsoever if and when HRDC requested
a ruling on insurability in respect of the claimants who were
subjects of the investigation. In 1996, there were
15 Rulings Officers in the Vancouver office - where he
worked - including Janet Mah who issued all the rulings in
the within appeals. Blakely stated that once HRDC submitted its
request for rulings, his involvement with the SRC matter ended.
On May 26, 1997, he attended the HRDC Burnaby office in order to
participate in the scheduled interview with Manjit Rana but Rana
did not appear. However, Rana showed up at that office the next
day and Blakely responded to a phone call from Fontaine to attend
and participate in the interview. Blakely stated he made notes on
a Supplementary Record of Claim form - Exhibit R-3, tab 67 -
supplied to him by Fontaine. Blakely stated he took notes as the
interview progressed and attempted to record information that was
relevant. Later, he typed up notes - tab 71 of same exhibit -
pertaining to the interview, including his observation that
Fontaine asked Rana if he had been drinking and Rana's reply that
he had not. Blakely noted Rana's speech was so indistinct that
even the interpreter had difficulty understanding him and when
answers were given, often they were not responsive to the
question. Blakely recorded Rana's response to Q. 20 of the
interview - tab 67 - concerning the 14 receipts - acknowledging
payment of money by 12 SRC employees - discovered among the SRC
business records. Blakely noted that Rana admitted the money was
paid to buy ROEs and added there could be more people who bought
ROES but he would "have to check". However, when Fontaine asked
Rana to repeat his statements within the context of a Statutory
Declaration, Rana refused and then denied saying what he had
previously stated about selling ROEs. Blakely recalled the
interview moved so slowly it occupied most of the day. Rana
failed to return the following day when he was supposed to bring
some SRC books and records and complete the interview. At Exhibit
R-3, tab 71, Blakely noted he asked Rana questions he
considered were relevant from the RCT (Revenue Canada Taxation)
point of view and Fontaine's inquires related to the concerns of
HRDC. Blakely stated the interview of Inderjit Singh Atwal was
the only one involving an appellant in the within appeals that he
attended. Fontaine questioned Atwal while utilizing the services
of Sarb Sandhu, Punjabi interpreter. Blakely took handwritten
notes of the interview and one or two days later used them as a
basis for a set of typed notes (Exhibit R-9, tab 82). Blakely
recalled Atwal stating he was able to work outside - in the cold
- because he wore a raincoat. Blakely recalled that when Fontaine
pointed out there was up to two feet of snow on the ground, Atwal
replied he worked inside houses - doing cleanup - during that
period. Blakely noted Atwal described working with Bant,
installing sheets of material inside new houses at three
locations during a period of two weeks. Blakely recalled
Atwal told Fontaine that Bant drove him to work every day in a
light blue van. When informed by counsel that Atwal had provided
different answers in his testimony in Court, such as the colour
of the van - which he said was brown - and his assertion Bant had
never worked with him and only drove him to and from work,
Blakely replied that his notes of the Fontaine's interview with
Atwal were accurate. Blakely also recorded - at p. 8 of his
typewritten notes at tab 82 - Atwal's answers where he described
seeing a crowd of people waiting for a yellow bus in June or July
of the previous year (1996) and his estimate that 40 or 50 people
could be seated within that bus. During the interview, Atwal
stated he thought Shindo must have written down his hours of work
according to what Bant told her each night. Counsel referred
Blakely to his notes - Exhibit R-3, tab 74, p. 11 -
where he recorded that Mike Vaupotic - proprietor of Mike's Farm
- did not attend the scheduled interview at the Burnaby HRDC
office. As a result, Blakely went with Fontaine to interview Min
Ho Ahn in Richmond. Blakely noted Ahn was able to identify Rana
from a photograph and that Ahn had no records or invoices
pertaining to the labour supplied by SRC. On October 15, 1997,
Blakely attended the interview with Surinder (Shindo) Suran and
made handwritten notes from which he produced a typed version
(Exhibit R-5, tab 240). Shelly Suran - Shindo's daughter -
interpreted on her behalf pursuant to an authorization - tab 242
- signed by Surinder Suran. Blakely recalled attending a meeting
on December 2, 1997 where he advised Fontaine and other ICOs
about matters relevant to any future rulings that might be issued
by CCRA, including the warning that every case would be judged on
its merits. He attended another meeting on January 29, 1998, at
the Burnaby HRDC office where he offered the group a presentation
in which he outlined possible rulings scenarios - Exhibit R-3,
tab 79, pp. 1 and 2 - he had prepared earlier. Blakely stated he
was informed - later - by Fontaine that Rana
never appeared for any further interview.
[153] The witness - Richard Blakely - was cross-examined
by Darshen Narang. He confirmed his involvement with the SRC
matter commenced with the receipt of a 4-page facsimile - Exhibit
R-3, tab 66 - sent to him by Fontaine who outlined therein the
situation relating to the SRC supply of labourers during 1996.
Later, Fontaine showed him some of the "I Cash Money Give"
cheques and other documents. Blakely stated he regarded his role
as that of a resource person but did not attend any interview
with any ICO other than Fontaine. He stated he wanted to provide
advice to ICOs concerning the sort of information in the form of
documentation or otherwise that would be relevant to a Rulings
Officer. Blakely stated his Vancouver office dealt with hundreds
of rulings every year from HRDC offices throughout the Lower
Mainland. In the past, occasionally, he had received a telephone
call from a less-experienced ICO who sought advice pertaining to
the type of material that should be included when requesting a
ruling. Blakely stated he perceived Fontaine's role as a
coordinator of the SRC investigation and met - or otherwise
communicated - with him, as required. He received notice that
Fontaine had arranged for the ICOs to conduct 14 separate
interviews on May 26, 1997. Blakely stated that in his
experience, HRDC may refer several files pertaining to workers of
one particular business, particularly if there are concerns about
the methods of operation of that entity. Otherwise, a request for
a ruling on insurability may involve a single worker and - often
- the issue is whether the worker was in a non-arm's length
relationship with the employer in accordance with the provisions
of the legislation. Another subject matter of rulings is whether
farm workers had provided services under a contract of service.
Blakely stated he had issued more than 100 rulings affecting farm
workers and during the course of arriving at those decisions, had
examined relevant documents, including copies of HRDC interviews
with the claimants and others, bank statements, pay stubs,
payroll statements, picking cards and any other reliable
documentation. In his experience, the employment situation
applicable to farm workers was a "mish-mash" in that sometimes
picking cards or cancelled cheques were produced to substantiate
payment of wages but other times the workers claimed to be paid -
usually on an irregular basis - by a combination of cash and
cheques. Darshen Narang questioned Blakely about the claim of the
appellant, Bakhshish Kaur Thandi and referred him to Thandi's ROE
in Exhibit R-29 at tab 88. Based on the information contained in
Box 15 on said form, Blakely stated one would expect the worker
actually had been paid every two weeks. However, in his
experience, that is not normal within the agricultural industry
as it is not uncommon for pay to be irregular for most of the
season. During his career as a Rulings Officer, he dealt with
cases where the employer paid advances to the worker from time to
time in amounts of $1,000 or more and a large cheque would be
issued at the end of the season to settle the wage account in
full. Blakely agreed many workers recorded their hours on a
calendar in their homes but usually were able to produce pay
stubs or some other documents in order to substantiate payment of
their wages. Blakely was referred to the "I Cash Money Give"
purported cheque at tab 90 of Exhibit R-29, in the sum of $7,000.
He commented that he has seen various receipts for cash payments
to workers and encountered circumstances where no receipts had
been given for cash received but had not expected that anyone
would use an actual blank cheque as some sort of receipt. Blakely
stated the usual receipt issued by the recipient of cash would be
in the standard form as those in Exhibit R-1, tab 29. In the
past, Blakely stated he reviewed receipts on which the employee's
deductions had been recorded but had never seen anything like the
"I Cash Money Give" purported cheques. Blakely stated that when
he was in the process of issuing a ruling in the case of a farm
worker, he expected to receive an ROE from HRDC together with the
claimant's application for UI benefits, cancelled cheques, notes
of interviews and any other relevant material with a bearing on
the issue to be decided. Blakely was referred to a 15-page
document in Exhibit R-3, tab 74, p. 2, and stated he had created
that memorandum for his own purposes and could not recall whether
that material had been forwarded to Fontaine. Blakely stated his
own experience led him to expect the berry season to begin in
June and to end in October. He agreed some pre-season was
required in February and March - well before the start of berry
season - but that sort of work was sporadic over a short period,
like the tasks performed post-season. He stated he was aware of
some farming operations that provided greenhouses or nurseries in
order that work could be carried out inside. Darshen Narang
referred to the notes - Exhibit R-2, tab 37 - made by Fontaine of
his visit to Min Ho Farms and the conversation with Min Ho Ahn,
particularly in respect of the observation recorded by Fontaine
that "initially, Mr. Ahn appeared to be upset by Richard
Blakely's and my presence on his property". Blakely replied he
had no recollection that would accord with that comment but
recalled Ahn seemed to be rambling in the course of his
discussion with Fontaine. He remembered Ahn stating that his main
crops were zucchini and lo bok and that he had obtained labour
services from Bant in 1995, but did not recall him producing any
sales receipt to Fontaine. Blakely stated he joined the interview
with Rana after Fontaine had reached Q. 6 on the prepared form.
Kal Tarlal was present and acted as interpreter and he thought
the interview either started over at the first question or the
questions already asked and answers given were reviewed by way of
an oral summary delivered by Fontaine. Blakely stated that
Revenue Canada (CCRA) preferred to receive all requests for a
ruling on insurability - with respect to the same employer - in
one batch. He stated he could not recall speaking with
Janet Mah at any point during the rulings process and cannot
recall any contact with Bernie Keays, Appeals Officer. Blakely
stated that when a Rulings Officer is dealing with a situation
where the employer is no longer available, he or she has to
search for pay records, remittances, bank deposits and statements
from co-workers in an effort to corroborate the position advanced
by the claimant. To that end, he agreed a Rulings Officer might
contact an ICO concerning some points, perhaps in relation to
missing documentation or to clarify some aspect of the submission
for ruling. Once a ruling had been issued, a Rulings Officer
might speak with an ICO in order to explain the rationale for the
decision. Blakely identified the document in Exhibit R-29, tab
86, as the typical form one would receive from HRDC when a ruling
was requested on the insurability of the subject employment
situation. He was referred to the material at the next tab and
stated it was not abnormal for that sort of submission to be
submitted to the Rulings Officer or for the ICO to include a
recommendation that the Rulings Officer arrive at a desired
conclusion. Blakely stated that when discharging his function as
a Rulings Officer, he is not swayed or disturbed by any such
recommendation or request from the submitting official at
HRDC.
[154] Counsel for the respondent did not re-examine.
[155] Counsel for the respondent called Janice Morrow to
the stand. Morrow testified she has been employed by HRDC since
1984 and held the position of ICO at the Surrey office since 1995
but is currently on leave. Earlier in her career at HRDC, she was
an Insurance Officer and in that position exercised an
adjudication function in addition to fact-finding duties. In the
normal course, she was assigned some files involving SRC workers
but continued to handle her regular caseload. In the course of
her employment at HRDC, she worked on files involving farm
workers. She does not speak Punjabi. Morrow recalled receiving a
template of questions that could be used when interviewing a
claimant but was aware that she was free to pursue her own lines
of inquiry. She stated the SRC workers she interviewed usually
brought a friend or relative to act as interpreter. Otherwise, a
Punjabi-speaking member of the HRDC office fulfilled that role.
In the event the interviewee signed a Statutory Declaration, he
or she received a copy since the form used for that purpose was
capable of producing two copies.
[156] Morrow was referred to Exhibit R-14, tab 95,
pertaining to the appellant, Jaswinder Kaur Cheema whom she
interviewed on August 19, 1997. Morrow stated she made
handwritten notes and then created a typewritten version - tab 96
- immediately after the interview ended. A woman identified
herself as Gurbax Kaur had stated she was a distant relative of
Cheema and was prepared to serve as interpreter. Following the
interview, Cheema signed a Statutory Declaration
- tab 92 - and was provided with a copy. Morrow
referred to her notes - tab 97 - in which she recorded details of
the visit by Gurbax Kaur to the HRDC office on August 25, 1997
during which she provided Cheema's T4 slip and bank book from
Canada Trust so they could be photocopied - tab 94 - and
returned.
[157] Morrow was referred to Exhibit R-18, pertaining to
the appellant, Ravjit Singh Gill whom she interviewed on
August 27, 1997, when Gill attended at the HRDC Surrey office
with Satnam Aujla whom he identified as his cousin. Morrow stated
the typewritten notes - tab 95 - were prepared soon after the
interview was finished. She recalled Gill spoke English quite
well and there was no indication he was suffering from any
illness or hangover from a previous night of drinking. At p. 1 of
her interview notes, Morrow stated she recorded Gill's answers to
her question as to how he went to work and noted he told her that
he "drove his car to work all the time. I could have received a
ride on one of the vans but I would have had to get up earlier".
According to Morrow's notes - at the top of p. 2 - Gill repeated
his assertion that he never rode in the van, although he was
aware SRC had two or three vans, including one grey and one red.
On the same page, Morrow noted Gill - again - stated he never
took anyone in the car with him and that he was "in my own car by
myself". He told Morrow he was paid $7 per hour and could not
remember the names of any co-workers. During that interview, Gill
told Morrow he was always paid by cheque and had received "maybe
3 or 5 cheques each in amount of $1,500 or $2,000". Morrow
was referred to tab 91 and the cheque - dated September 22, 1996
- in the sum of $3,000 which was deposited to Ravjit Gill's
account at Canada Trust on September 27, 1996 and to two other
cheques at tab 92 and tab 93, respectively, one dated September
27, 1996 - in the sum of $2,000 - which was deposited to the same
account on October 3, 1996 and the other - in the sum of $1,900 -
which was deposited to said account on October 24, 1999, for a
total amount of $6,900 paid to Gill by cheque. Morrow stated she
had seen those cheques together with Gill's earnings statement -
tab 94 - indicating he had net earnings in the sum of $6,376.
Morrow noted - at the last page of her notes, tab 95 - that
she asked Gill if he ever paid any money back to Rana and Gill
replied "No, I never paid any money back to him".
[158] Morrow was referred to Exhibit R-35, pertaining to
the appellant Amarjit Kaur Grewal whom she interviewed on
August 26, 1997 at the HRDC office in Surrey. Grewal was
accompanied by her daughter - Sukhwinder Barn - who acted as
interpreter. Morrow took notes and prepared a typewritten version
- tab 91 - in which she recorded the questions asked
by her and answers given by Grewal through the interpreter.
During the interview, Grewal told Morrow she had earned a total
of $7,000 from her employment with SRC and received a total of
$3,000 in cash and a cheque in the sum of $4,000 at the end of
the season. Grewal produced her bankbook, and a photocopy - tab
97 - was made of entries during the relevant period. Morrow noted
- at the 4th page of tab 91 - that Grewal was adamant she had
been paid $7,000 and had not paid back any of that money to
anyone at SRC. Following the termination of the interview, Grewal
signed a Statutory Declaration - tab 92 - prepared by her
daughter - in English - in which she repeated her assertion that
she was paid $7,000 for her work.
[159] Morrow was referred to Exhibit R-23, pertaining to
the appellant, Varinder Kaur Kang whom she interviewed
on May 26, 1997. Morrow's handwritten notes are at tab 95 and tab
96 of said exhibit. Morrow noted Kang's response that she spoke
English, Punjabi and Hindi and agreed there was no indication a
Punjabi interpreter was present during the interview. Morrow
stated she was satisfied she had accurately recorded the answers
given by Kang to the questions contained in the template provided
by Fontaine to be used by all ICOs during the first round of
interviews held at various offices on May 26, 1997. Kang's
response - to Qs. 9 and 10 - concerning the method of
transportation to get to work was that she always rode to work in
a van that was always driven by Master (Bhan Singh Sidhu). In
responding to Q.7 concerning the nature of her work, Kang
referred to working with "strawberries, raspberries, blueberries
but mostly vegetables - berries just in beginning of work". With
respect to child care for her baby born August 30, 1996, Morrow
noted Kang's explanation that her mother - Harbans Kaur Kang -
helped for one week in September and that her husband's sister
and brother - aged 16 and 18, respectively - also helped after
returning home from school and her husband - who worked a shift
ending at 4:00 a.m. - also cared for the child during the
day. Kang told Morrow she was paid by the hour and attributed
that factor to having been kept on the payroll longer than others
who worked on a piecework basis. Kang mentioned working with
berries from time to time between October and December but stated
that kind of work was done only inside a building. In the course
of answering Qs. 17 and 18, Kang explained that she was paid only
by cheque - every month rather than semi-monthly - and that
she was paid by a personal cheque and did not receive a pay stub.
Morrow asked Kang - at Q.29 - about which bank account to which
her cheques were deposited and noted her answer that she had a
savings account at Canada Trust and a joint account with her
husband at a branch of the Bank of Montreal which was used once
or twice to deposit her pay cheques. Morrow stated that during
the interview with Kang she showed her the receipt - tab 89 - in
the sum of $2,000 upon which the signature "V.K. Kang" appeared
on the bottom line and asked her - at Q. 25 of tab 96 - why she
had issued that receipt. The answer recorded by Morrow was that
Kang admitted that was her signature on said receipt and that her
in-laws had borrowed money from the contractor (SRC) in advance
to go to India and the arrangement had been made that Kang would
work for SRC and the amount of the loan would be deducted from
her wages. However, as Kang went on to explain to Morrow, she
received her wages in full but $2,000 of her in-laws' loan from
SRC was outstanding and she paid it on their behalf because they
were in India at that time. Upon being informed by counsel that
Varinder Kaur Kang testified she had returned to the HRDC office
the following day, Morrow stated any such attendance would have
been noted in the normal course of business by an employee of
HRDC. Morrow stated she interviewed Kang again on September 10,
1997 and prepared a typewritten version - tab 97 - from notes
handwritten during the course of the interview. A friend,
Harinder Singh, acted as interpreter even though Kang was able to
speak and understand some English. During this interview, Kang
mentioned she received some cash advances in addition to the
cheques mentioned during the earlier interview. However, Kang
denied that she had provided the explanation recorded by Morrow
concerning the receipt in the sum of $2,000 and the details about
paying the money on behalf of her in-laws who were in India.
Instead, Kang told Morrow that on May 26, 1997, when the
interpreter asked her about the receipt, she had replied that she
would check with her in-laws and husband to determine if any
money was given to the employer and if so, for what reason, and
then return to the HRDC office and inform an official about the
results of her inquiry. Kang told Morrow that she returned to the
office two or three days later and spoke to an East Indian woman
working at the counter but was told the HRDC office would be in
touch with her later and she was advised to either write a letter
or phone in that information. In her notes, Morrow expressed
disbelief at this version offered by Kang.
[160] Morrow was referred to Exhibit R-31, pertaining to
the appellant Sukhwinder Kaur Toot, whom she interviewed - August
27, 1997, at the HRDC Surrey office - in the presence of her son,
Satnam Toot, who acted as interpreter. Morrow noted that Satnam
Toot advised her he was able to read, write and speak English and
that his mother spoke only Punjabi and had never attended school.
Morrow stated that in the event any difficulty had arisen in
communicating with Satnam Toot, she would have obtained the
assistance of a Punjabi-speaking HRDC employee in the Surrey
office. During the interview, Sukhwinder Kaur Toot identified the
cheque - tab 90 - in the sum of $5,000 that was cashed at the TD
bank on October 23, 1996.
[161] Morrow stated she went on leave from her
employment beginning September, 1997 and her absence is ongoing
in accordance with a particular program available to HRDC
employees occupied with raising children.
[162] The witness - Janice Morrow - was cross-examined
by Darshen Narang. She stated that after leaving university in
1984, she began working for HRDC in a clerical position but later
became an Insurance Agent and then an Insurance Officer prior to
assuming the role of ICO. She received on-the-job training for
that position and received advice from a mentor within the Surrey
office. In addition, she participated in any formal training
offered from time to time to ICOs in the Lower Mainland. She
estimated she had dealt with 40 files of farm workers during her
career and agreed many of them involved the issue whether the
work was done, as alleged, or at all. She stated she was assigned
files of certain SRC workers in accordance with standard office
practice of using the last digit of the SIN number of a claimant.
Within her Surrey office, Gail Buckland and Ted Bowerman also had
files involving persons who claimed to have worked for SRC during
1996. Morrow stated her first interview was with Varinder Kaur
Kang and prior to commencing same, had been aware there were
concerns about the validity of Kang's employment. The template of
questions she used during that interview had been received -
probably by fax - from Fontaine and the same general format was
used to question other SRC workers. She was provided with certain
cancelled cheques and the receipt - Exhibit R-23, tab 89 - in the
course of her involvement with the SRC matter. She stated she
thought the receipt and the pay statement - tab 90 - had been
faxed to her about May 7 or May 8 because those documents and
Kang's application for UI benefits and her ROE were available
prior to the interview. Morrow agreed the "Fontaine template" had
not been used when interviewing Ravjit Gill - Exhibit R-18, tab
95 - and added that each claimant's situation is different and
specific questions must be asked to fit the circumstances.
However, even under those circumstances, the standard form
prepared by Fontaine was still available as reference material.
When interviewing Ravjit Gill, Morrow agreed she could have
inquired about his first day of work, the location thereof, and
the type of work performed and about his last day of employment.
However, she did not do so and did not inquire about his duties
on a month-by-month basis. She recalled Gill was a younger person
than other workers and spoke adequate English when responding to
her questions.
[163] With respect to her interview with Sukhwinder Kaur
Toot, Exhibit R-31, tab 93 - she stated the Statutory
Declaration - tab 99 - was written by Satnam Toot who explained
it - in Punjabi - to his mother before she signed it. Morrow
stated she did not recall any discussion with Satnam Toot
concerning whether an event occurred during the 9th month or 10th
month in 1996 and would not have forced Sukhwinder Kaur Toot to
choose a date if it was not the truth. Morrow did not recall that
there was any confusion arising over months of the English
calendar. Morrow stated that mere negotiation by a purported
employee of a cheque issued by a purported employer is not
necessarily sufficient to establish insurable employment and ICOs
often want to rely on other documents - sufficient to create a
paper trail - to corroborate the work was performed within a
genuine employment relationship.
[164] Counsel for the respondent did not re-examine.
[165] Counsel for the respondent called Ted Bowerman to
the stand. Bowerman stated he is currently employed - as an ICO -
by HRDC, where he began working in October, 1993. In December,
1996 he worked in the Surrey office and became aware there was an
investigation being undertaken by the Burnaby HRDC office as it
related to the employment of farm workers by a labour contractor.
Bowerman stated he was assigned SRC worker files in addition to
his regular workload. Earlier in his career, he had dealt with
files concerning farm workers but had not participated in an
investigation as large in scope as the one involving SRC. He does
not speak Punjabi. Bowerman attended the December 2, 1996 meeting
of ICOs and others and assisted in the preparation of certain
questions to be put to claimants during interviews. When
claimants were interviewed - later - in the Surrey office, he
attempted to use the services of an in-house Punjabi interpreter
rather than rely on a friend or relative of the interviewee and -
on some occasions - was able to obtain the services of a
certified interpreter. Prior to interviewing a claimant, he had
access to various relevant documents relating to the employment
with SRC. After completing all the interviews, Bowerman submitted
a request to CCRA for a ruling on insurability of employment with
respect to each of the files that had been assigned to him.
[166] Bowerman was referred to Exhibit R-13, pertaining
to the appellant Gurmail Singh Cheema whom he interviewed on
December 16, 1997. His typed notes - tab 87 - were prepared from
a handwritten version taken during the interview ar which Gurbax
Kaur Randhawa - a relative of Cheema - interpreted on Cheema's
behalf. Bowerman noted Cheema told him that Rana had helped to
complete his application for UI benefits. Bowerman stated his
practice was to separate the application from the ROE when
presenting one or the other to a claimant for questioning. He
stated his notes of the interview were accurate and that he
recorded - correctly - Cheema's answers to the questions,
including the one - near the bottom of p. 1 - as to
how Cheema met Harbhajan Singh Kang. Bowerman noted Cheema
responded "When I came home from India on April 14, 1996, I went
to my son's home, basement. Mr. Kang was there". Cheema later
conceded his ROE - tab 88 - was incorrect because he did not
start work until the next day, April 15, 1996. Bowerman noted
Cheema said he was paid by cheque.
[167] Bowerman was referred to Exhibit R-14, pertaining
to the appellant Jaswinder Kaur Cheema whom he interviewed on
March 12, 1998. Bowerman stated he took notes during the
interview - tab 99 - and the questions and answers were
interpreted by Mohinder Herar, a certified interpreter who
successfully completed the Court Interpreting Certificate Program
- English/Punjabi - in June, 1996 and had received a Certificate
from Langara College (Exhibit R-53). Bowerman stated he was
satisfied his notes of the interview were accurate.
[168] Bowerman was referred to Exhibit R-16, pertaining
to the appellant Gurbachan Singh Gill whom he interviewed on
January 30, 1998 while utilizing the services of the interpreter,
Mohinder Singh Herar. Bowerman typed notes
- tab 87 - of the interview and recorded
Gill's answers that he had met Rana in Vancouver where Rana
showed him a light-brown van capable of carrying
20 passengers. Gill told Bowerman that when driving for SRC,
he followed other SRC vans, red and grey. In his notes, Bowerman
recorded Gill's answers that he rode in a van - driven
by Master - to an alley behind 49th and Main in Vancouver, where
he would find his van - with a full gas tank - and a bunch of
passengers waiting to be driven to work but was not able to
recall their names. Counsel advised Bowerman that when Gill
testified in Court, he said Bowerman threatened him - at the end
of his interview - by telling him he could lose his security
guard licence as well as other rights and privileges. Bowerman
replied he advised Gill the investigation would continue and if
it turned out criminal charges were laid, then any person
subsequently convicted of offences such as fraud would be subject
to deportation and - in Gill's case - he would lose the right to
hold said security guard licence.
[169] Bowerman was referred to Exhibit R-22, pertaining
to the appellant Harbans Kaur Kang whom he interviewed on
June 18 and June 20, 1997 in the presence of Kal Brown - HRDC
employee - who acted as Punjabi interpreter. Bowerman typed up
notes - tab 88 - of the interview and recorded Kang's answer that
her daughter-in-law - Berinder - completed the UI application on
her behalf. Kang maintained she had not been paid for her work
even when Bowerman presented her with proof that two SRC cheques
payable to her in the sums of $879 and $6,000, respectively, had
been deposited at the Canada Trust branch at Scott and 72nd
Street in Delta, B.C. where she and her husband had a joint
account. Bowerman noted Kang's comment that she had never seen
those cheques before. However, Kang returned to the HRDC office
on June 20, 1997 and Bowerman stated he recorded in his typed
notes - tab 89 - that Kang advised she had talked to her husband
about her pay from SRC and discovered he had deposited two
cheques - payable to her - into their joint account. She stated
she still thought she should have been paid more for her work.
Bowerman stated he confronted Kang about the complete reversal of
what she had told him two days earlier but Kang did not reply.
When Bowerman inquired about the loan from their son to take a
trip to India, Kang affirmed there had been a loan but did not
offer any details.
[170] Bowerman was referred to Exhibit R-37, pertaining
to the appellant Jatinder Kaur Lidhran, whom he interviewed
on July 8, 1997 and prepared typed notes - tab 95
- and on March 12, 1998 - tab 93 - when he took handwritten
notes. Both interviews were conducted without an interpreter
since Lidhran spoke good English. The ROE - Exhibit R-49 - was
issued by Lidhran Farms in the name of Jatinder Sidhu - Lidhran's
former married name - in respect of her employment between April
1 and August 17, 1996. During the interview - tab 95 - Lidhran
mentioned working only at one vegetable farm in Richmond.
Bowerman stated that Lidhran also mentioned only working on one
farm when writing out her Statutory Declaration - tab 96 - which
she signed on July 8, 1997.
[171] Bowerman was referred to Exhibit R-28, pertaining
to the appellant Parmjit Kaur Rehal whom he interviewed on
July 10, 1997, in the company of her husband - Jaspal Singh Rehal
- who acted as interpreter. Bowerman took handwritten notes - tab
101 - of the questions asked and the answers provided by Parmjit
Kaur Rehal through her husband. At p. 5 of his notes, Bowerman
recorded her response that she had not taken any days off during
her employment with SRC. With respect to payment of wages,
Bowerman wrote down her explanation that she received money from
Rana about 4 times including the sum of $500 - and "a thousand a
couple of times and cheques also". Continuing with her answer,
Parmjit Kaur Rehal referred to 3 cheques in the sums of $1,000,
$2,000 and $1,200, respectively, to the best of her
recollection.
[172] Bowerman interviewed Harbhajan Singh Kang -
husband of the appellant, Harbans Kaur Kang - 4 times, beginning
on May 26, 1997. An HRDC employee - Tejinder Bhandall
- acted as interpreter. Bowerman used the "Fontaine template"
prepared on the Supplementary Record of Claim form - Exhibit R-5,
tab 166 - to ask questions and record Kang's answers, including
the explanation - at Q. 18 - that he received his first payment
of $2,500 - from Shindo - after working two months and was
paid another $2,000 after another two months. In answering Q. 26,
Kang stated his pay was $1,700 per month despite the fact his ROE
showed a gross salary of $2,688 per month. At tab 167, p. 3,
Bowerman noted Kang said he received a final cheque of $2,500 in
October. Bowerman stated he pointed out to Kang there were 3
different versions of his pay being offered up and that he had
stated - earlier - he received only two cheques. In answering Q.
17 at tab 166, Kang stated he used to deposit his pay cheques
into the account at Canada Trust and added he could not remember
the bank used by SRC to issue cheques. He also stated his wife
started working in June. On May 29, 1997, Bowerman interviewed
Harbhajan Singh Kang and took notes - tab 170 - of the questions
and answers that were interpreted by Tejinder Bhandall. At that
interview, Kang produced the bank book for the Canada Trust
account - tab 182 - and referred to entries he had underlined.
Bowerman noted Kang stated he had collected his wife's pay for
the work she had done from June to October. Bowerman interviewed
Kang again on June 20, 1997, and prepared typed notes - tab 171 -
of the session at which Kal Brown acted as Punjabi
interpreter. Bowerman noted Kang advised he wished to speak with
Bowerman as a result of certain matters raised during Bowerman's
interview with his wife - Harbans Kaur Kang - on June 18, 1997.
Kang advised Bowerman that he had withdrawn the sum of $5,700
from the Canada Trust account in order to buy rupees for their
trip to India and that the further sum of $3,000 had been
withdrawn on October 9, 1996 to buy airplane tickets. He
explained that other withdrawals of $1,000 and $3,000 on October
18 and October 24, 1996, respectively, were for the purpose of
buying clothes and paying household expenses. Bowerman stated he
told Kang he believed Kang had paid money back to his employer
for the purchase of ROEs for himself and his wife but Kang denied
this and stated he was telling the truth and had not given any
money back to the employer. Bowerman stated that during this
particular interview he pointed out to Kang that when asked -
during the second interview - about the source of the deposit of
$8,199 to the Canada Trust account on October 17, 1996, he had
explained it was a loan from his son so he could take a trip to
India and that Kang now wanted Bowerman to accept the version
that this deposit was composed of a $6,000 cheque payable to
Harbans Kaur Kang and another sum of $2,199 which he could not
identify. Bowerman asked Kang why he "lied" about his matter but
received no reply. Bowerman interviewed Kang - for the last time
- on January 28, 1998 and prepared typed notes - tab 172 -
of the interview which was attended by Mohinder S. Herar who
acted as interpreter. Again, Kang stated he started working
"about 2 or 3 weeks into June". He did not mention returning any
sum to the employer whether due to an alleged overpayment of
wages - in the sum of $800 - to his wife wages or otherwise.
During this interview, Kang stated he drove the red van and in
the course of proving answers - at p. 3 - referred to only one
training day where he was taken out to Chiliwack by Harjit Gill.
At p. 5, Bowerman advised Kang information was obtained by HRDC
that Kang was present at Rana's house in Vancouver when people
gave money back to Rana and then received their ROEs. Bowerman
noted Kang's reply "I cannot remember", and when Bowerman stated
others had already said Kang was present, Kang stated "I took
people to the bank and back to the house, I didn't see anything".
Bowerman stated he was confident in the accuracy of all the notes
he took during the interviews with Harbhajan Singh Kang.
[173] Bowerman stated he prepared a schedule - Exhibit
R-50 - with respect to the number of weeks of employment each
named appellant required to qualify for UI benefits together
with a calculation therein of the amount of overpayment of
benefits as defined by HRDC and the administrative penalties
imposed. Bowerman explained that individuals who have been in the
workforce longer require less weeks than new entrants due to
certain factors relating to circumstances defined as "workforce
attachment". Bowerman summarized the information with respect to
the following appellants:
- Jaswinder Kaur Cheema was a new entrant in the labour force
and required 26 weeks of employment in order to qualify for UI
benefits. The Minister decided Cheema had worked only 17 weeks
and HRDC decided the overpayment of benefits amounted to $4,623
and imposed an administrative penalty of $1,608.
- Varinder Kaur Kang was a repeat claimant and required 16
weeks in order to qualify. She filed two other ROEs with her
application for UI benefits, including 11 weeks of
employment at Brachman's Chocolate and 3 weeks for DBK. The
Minister decided Kang had not been employed by SRC and an HRDC
adjudicator subsequently decided Kang had been overpaid $3,548 in
benefits and - therefore - imposed a penalty in the sum of
$1,378.
- Parmjit Kaur Rehal applied for special benefits and required
20 weeks employment in order to qualify. Her only employment was
with SRC and the Minister decided she had worked only 18 weeks.
The HRDC adjudicator decided Rehal had been overpaid the sum of
$5,400 and imposed a penalty of $2,163.
- Jatinder Kaur Lidhran was a new entrant in the labour force
and required 26 weeks of employment to obtain UI benefits.
Apart from her alleged employment with SRC, Lidhran had worked 20
weeks for Lidhran Farms. The Minister decided Lidhran was not
employed under a contract of service with SRC and - as a result -
had received benefits in the sum of $6,240 to which she was not
entitled. A penalty of $1,976 was imposed.
- Harbans Kaur Kang required only 18 weeks of work in order to
qualify for UI benefits. She had no other employment other than
SRC. The Minister decided Kang had worked only 17 weeks and was
overpaid benefits in the sum of $3,281 which led to the
imposition of a penalty - by HRDC - of $1,062.
- Gurbachan Singh Gill needed only 16 weeks of employment in
order to receive UI benefits because he had participated -
earlier - in the labour force. He did not file any other ROEs in
support of his application. The Minister decided Gill had not
been employed in insurable employment with SRC. Subsequently,
HRDC determined Gill was overpaid by $5,520 and imposed a penalty
of $3,456.
- Gurmail Singh Cheema - a new entrant in the labour force -
needed 26 weeks of employment to qualify for UI benefits.
The Minister decided he had 18 weeks - for SRC - as stated
in his application but reduced his insurable earnings which
affected the weekly payment of benefits. As a result, HRDC
calculated an overpayment in the sum of $4,554 and a penalty of
$1,414 was imposed.
- Amarjit Kaur Grewal needed 17 weeks work to qualify for
benefits. She worked 18 weeks for SRC and the Minister confirmed
that period of employment but reduced the amount of insurable
earnings which affected the weekly benefit paid to her. The
amount of overpayment - calculated by HRDC - was $1,159 and a
penalty of $589 was levied.
[174] Bowerman stated that Harbhajan Singh Kang,
although not an appellant in the within appeals, received a
decision from the Minister increasing his weeks of employment
from 8 - as stated in the original ROE issued by SRC - to 18.
However, Kang's insurable earnings were reduced and an
overpayment of $684 was calculated by HRDC but no penalty was
imposed.
[175] Bowerman stated that he thought seasonal workers
would be more aware of the number of weeks needed to qualify for
UI benefits than people involved in traditional employment and
added that economic factors in a defined region can affect the
qualifying period for new entrants.
[176] The witness - Ted Bowerman - was cross-examined by
Darshen Narang. Bowerman recited his earlier employment,
including three years with Immigration Canada between 1990 and
1993. From 1987 to 1990, he worked for the Canadian Grain
Commission on the Vancouver waterfront. Before that, he was a
Vancouver policeman for 13 years. Before becoming a police
constable he had worked for BC Hydro - as a trucker - and
was a Military Policeman in the Royal Canadian Air Force for 6
years. During his service as a Vancouver police constable,
Bowerman stated he was on general patrol for two years,
motorcycle patrol for another 2 years and then assigned to the
serious accident investigation squad. In the course of his duties
with that specialized unit, he was required to take copious notes
and retained his numerous notebooks for as long as 6 or 7 years.
It was common practice to type up notes by using the notebooks as
a source. During his work with Immigration, he attempted to
locate persons - primarily refugee claimants - who disappeared
from official tracking. He conducted interviews and took notes
but his main function was to find people, arrest them and bring
them back before the relevant tribunal for a hearing. Bowerman
stated he typed up his notes - usually - the same day and if the
handwritten notes had a link to a potential prosecution, greater
care was taken to make them more legible for others who might
read them subsequently. He advised Narang there had been no
particular reason why some of his notes of interviews with some
appellants in the within appeals were typed and others were not.
Bowerman stated he had attended farms earlier in the course of
his career as an ICO in order to interview employers and obtain
certain records and had investigated employment situations
pertaining to farm labourers in which he had to search for
documents in order to verify the number of hours worked and the
wages paid to a worker. In his experience, he discovered some
employers were difficult to locate in order to obtain documents
needed to establish the entitlement to UI benefits by a
worker. Bowerman stated that - as an ICO - he wants to know where
the work was done, what duties were performed, and also how, when
and how much the worker was paid together with proof of payment.
Some workers produce calendars - with hours and days of work
noted thereon - and some bring in banking records to verify
payment of wages by the employer. Bowerman stated that the usual
course of action is to obtain proof of payment from the employer
and to ascertain the reason - if any - for any discrepancies
between that amount and the one claimed by a worker. Bowerman
stated that within his HRDC Surrey office, the workload of some
fellow ICOs prevented them from being assigned any SRC files.
Prior to interviewing a claimant, Bowerman used a Polaroid camera
to take a photograph and at the outset, the interviewee was
presented with his or her ROE and application for UI benefits.
The letter sent earlier concerning the scheduled interview at the
HRDC office advised the claimant to bring in a calendar or other
record of hours worked, if available. Bowerman recalled that
Gurbachan Singh Gill was warned at the commencement of his
interview about the potential penalties for knowingly providing
false information and agreed he had repeated this admonition at
the conclusion of the interview as "food for thought". Bowerman
recalled issuing a similar warning at the outset of his interview
with Gurmail Singh Cheema. Bowerman stated that if he interviewed
an SRC worker and in the course of obtaining answers received an
admission that the work had not been done - either as alleged or
at all - he would not - ordinarily - send that file to CCRA for a
ruling on insurability. Bowerman stated that due to the scope of
the SRC investigation, he was aware Fontaine had scheduled an
interview with Rana and that other ICOs intended to submit
questions to Fontaine to be posed on their behalf. He stated that
following the request for rulings - from CCRA - on September 9,
1998, he played no further role in the SRC matter. During the
course of his involvement, Bowerman met with Richard Blakely whom
he knew was a Rulings Officer employed by CCRA. Bowerman stated
he considered Blakely to be a resource person fulfilling the
function of advising 20 or 25 HRDC employees of the requirements
to support a request for ruling on insurability with respect to a
worker. Bowerman stated he was aware that ICOs from various local
offices were submitting requests for rulings within the same
approximate time frame. He could not recollect - specifically -
any contact with the Rulings Officer unless there was some
communication requiring clarification of material submitted or a
request for a document. Bowerman stated he had no need to contact
Bernie Keays - Appeals Officer - and - instead - followed through
on what he considered constituted his own mandate, namely, to
obtain facts from the claimant - and others - in order to
determine the truth about the employment at issue. Bowerman
agreed with Narang's suggestion that even though most farm
workers are paid their final wages - by cheque - at the end of
the season, there may be other smaller payments during the season
and conceded that most ROEs for farm labourers are inaccurate
when they purport to show payments of wages every two weeks on a
regular basis because any wage payments during the season are
generally sporadic. With respect to the appellant, Parmjit Kaur
Rehal, Bowerman was referred to Rehal's ROE - Exhibit
R-28 tab 89 - and to the space at Box 8 where the type of pay
period can be inserted. The form indicated payments of wages were
bi-weekly and details were provided in the space at Box 15.
Bowerman stated he would expect those wage payments to have been
made as stated in the ROE. Since the payment for the
last pay period must be listed first, Bowerman agreed the
payment of $343 listed on the ROE should have been made. He
pointed out that whether or not wages were paid every two weeks
as stated in her ROE - or any ROE - this does not affect
UI benefits since the amount is based on insurable earnings
once the qualifying threshold of weeks of employment has been
attained. The ROE issued to Rehal indicated her insurable
earnings were in the sum of $7,945. Bowerman stated this sum
should correspond with the number recorded in a payroll ledger or
other record. He agreed the amounts shown on Rehal's ROE did not
match those listed in her Employee Earnings Record - tab 98 -
which did not include any total. He pointed out it is not the
function of an ICO to calculate claims and stated that insurable
earnings are gross earnings - as defined by the relevant
regulations - up to a certain level. Bowerman was referred to his
notes - Exhibit R-28, tab 101 - of his interview with Parmjit
Kaur Rehal on July 10, 1997 where he discussed the discrepancy in
earnings. Rehal produced copies of cheques - totalling $6,200 -
that were deposited to her account but her ROE showed insurable
earnings in the sum of $7,945 whereas an SRC payroll document
indicated her gross earnings were $9,177. When submitting his
request for a ruling - tab 88 - Bowerman summarized the
discrepancies and stated that Rana failed to provide further
documentation or offer explanations to clarify the differences.
Bowerman also stated his opinion that Rehal's bank account
statements indicated there were withdrawals 24 hours after
depositing a cheque which led him to believe money had been
returned to the employer. Near the end of the interview with
Rehal, Bowerman noted her response to his question whether she
had paid money back to Rana. She said "No. I work hard". Bowerman
stated that he sent Fontaine a copy of his notes - Exhibit R-5,
tab 167 - pertaining to the interview with Harbhajan Singh
Kang. At p. 4, Bowerman recorded Kang's explanation that Rana
inquired about how many weeks Kang had worked at a previous
employment and then inserted only enough weeks working at SRC so
Kang would qualify for UI benefits by combining both employments
in a subsequent UI application. Bowerman stated when he began
interviewing claimants he used the Fontaine template but
discovered it did not provide enough space to record longer and
full answers. Bowerman stated he has not had any dealings with
the unit - MFU - within HRDC that investigates suspected
fraudulent transactions and/or employment schemes.
[177] Counsel for the respondent did not re-examine.
[178] The witness - Gail Buckland - was called to the
stand by Johanna Russell, counsel for the respondent. Buckland
stated she is employed - as an ICO - by HRDC and works out of the
Surrey office. She started working for HRDC in 1985 and after
performing clerical duties for 3 years, moved on to assess claims
for 6 months. Later, she was an Insurance Agent for 2 years
and a Supervisor of Inquiry Clerks for 2 years. In 1993, she
began working as an ICO in Surrey. She does not speak Punjabi.
Buckland stated she had dealt with files pertaining to farm
workers but not on the same large scale as those involved in the
SRC investigation. She was assigned SRC files in the context of
her normal caseload and divided up that work among other ICOs in
her office who were willing to participate. Michel Fontaine
had provided Buckland's supervisor with copies of relevant
documents pertaining to the claims being investigated by the
Surrey office. She also received photographs of Bant, Shindo and
Rana as well as a template of questions that could be asked
during an interview. Buckland stated she followed the format of
the template during the initial interview with a worker but posed
her own questions during any follow-up sessions with the
same person. She contacted Fontaine from time to time as the
investigation continued. She stated every attempt was made to use
court-certified Punjabi interpreters in the beginning but later
relied on the services of Punjabi-speaking HRDC employees
or permitted claimants to bring a friend or relative to act as
interpreter. Buckland was referred to Exhibit R-11, pertaining to
Jaswinder Kaur Bassi, and - specifically - to tab 107, which she
identified as a Request to Provide Information - dated February
14, 1998 - that she issued to a named official employed by
the British Columbia Medical Services Plan in Victoria. The
purpose of that document was to obtain information concerning
medical visits by Bassi during the period from January 1, 1995 to
the date of the most current data recorded in 1998. A print-out -
tab 196 - was provided in response to the request.
[179] Buckland was referred to Exhibit R-18, pertaining
to the appellant Ravjit Gill. Buckland took notes - tab 101
- of her interview with Gill and recalled Satnam Aujla attended
with Gill. Buckland noted - near the bottom of p. 5 - that Gill
said he drove himself to work in a Hyundai Excel during 1996 but
"sometimes my sister give me a ride & sometimes I borrow a
car." At pp. 7-8 when asked why his father - Gurbachan Singh Gill
- apparently rode to work in a van but he did not, Ravjit Gill's
answer - noted by Buckland - was "he doesn't like me sometime".
At p. 8, Buckland wrote down Gill's statement that payments on
the Hyundai Excel were made by "my sister". She stated that she
showed Ravjit Gill photographs of Harjit Gill, Bhan Singh Sidhu
(Master) and Balwinder (Binder) Chahal - all of whom worked as
drivers for SRC - but he was not able to identify any of them.
Gill also was not able to identify Shindo from a photograph shown
to him and advised Buckland he did not know that person and
doubted he had ever seen her. From a photograph, Gill recognized
Bant as someone he had seen with Rana but did not know what work
Bant did for SRC. At p. 6 of her notes, Buckland recorded Gill's
response concerning the nature of work performed; Gill stated he
did not pick berries and only worked with vegetables "mostly on
the Chinese farm". Buckland stated she had read the notes of
Janice Morrow - fellow ICO - concerning an earlier interview with
Gill where Gill stated he had no need to keep his own record of
hours worked. After Gill told her he kept - at home - a record of
hours worked, she pointed this out to Gill who denied he had
given that answer because Morrow had not asked that question.
Concerning his pay and the amount of net earnings - $6,376 -
shown on his pay statement - tab 94 - Buckland stated she pointed
out the discrepancy between that amount and the amount
- $6,900 - he had allegedly received in the form of
three cheques at tabs 91, 92 and 93 of Exhibit R-18. Buckland
stated she advised Gill it appeared as though Rana had overpaid
wages to him and the excess was in the sum of $524. She noted
Gill's response that he had not paid any money back and his
comment "maybe, it was a mistake, it was the accountant's mistake
or his mistake". Buckland stated she asked Gill if he would have
returned the extra money to which Gill replied "maybe, if he gave
me proof". Buckland stated there was no other explanation offered
by Gill about any further contact with Rana on this matter or
about any circumstance concerning the repayment of any sum to
Rana.
[180] Buckland was referred to Exhibit R-20, pertaining
to the appellant, Gurcharan Kaur Johal whom she interviewed on
December 18, 1997. Johal's son - Jagdip Singh Johal -
acted as interpreter. Buckland prepared typewritten notes
- tab 95 - of the interview. In responding to Qs.
26 - 33, inclusive, Johal stated she rode to work in a red van,
driven mostly by "Khang" (Harbhajan Singh Kang), never rode in a
grey van but then stated she rode "mostly" with the same person
every day but if not with that person, still did not ride with
any other driver. At Q. 39, Johal told Buckland she rode
home with Kang in the red van. Buckland stated Johal did not
mention being driven to work by all 4 drivers employed by SRC. At
Q. 41, Johal recognized photographs of Kang and Binder Chahal
whom she stated was "another driver but not mine". She also
recognized Master and stated he drove a van and although she had
seen him "a couple of times" did not know his full name was Bhan
Singh Sidhu. At Q. 18, Buckland noted Johal had not been able to
identify Rana from the photograph shown to her. She stated her
husband knew Rana and that - in response to Q. 19 - the owners of
SRC were Bant and Shindo. With respect to the nature of the work
performed - Q. 23 - Buckland stated she recorded - accurately -
the detailed explanation provided by Johal through her son acting
as interpreter. When asked - Q. 53 - how often she was paid,
Buckland stated Johal replied that she received "only the one
cheque when I was finished and some cash before when I asked for
it, about a total of $1,200 of $1,500". Johal stated the person
paying her the money did not ask for a receipt but recorded the
transaction in a small diary. Buckland conceded she made an error
in the course of preparing her submission for a ruling - tab 88 -
when she commented - near bottom of p. 2 - that "the claimant
could recognize no one from the pictures shown to her".
[181] Buckland interviewed the appellant - Sukhwinder
Kaur Toot - on 11/03 1998 and took handwritten notes -
Exhibit R-31, tab 101 - of their conversation. The appellant's
son - Satnam Toot - interpreted on her behalf. Buckland stated
although the certified interpreter - Mohinder S. Herar - was not
scheduled to act as interpreter during the Toot interview, she
requested that he attend and he was present throughout the
interview. Buckland stated she could not recall Satnam Toot
complaining to her or Herar about the quality - from time to time
- of the interpretation provided by Herar. Buckland stated she
wanted answers from Sukhwinder Kaur Toot directly - albeit
interpreted by her son - and did not pose questions directly to
Satnam Toot about his mother's employment nor did she threaten
him in any way. She had other contact with Satnam Toot when he
attended the HRDC interview with his father - Swarn Singh Toot -
and subsequently with respect to a request for receipts of
purchases allegedly made the same day as SRC pay cheques were
cashed.
[182] Buckland stated she prepared the following
information including the number of weeks of employment required
by several appellants in order to qualify for UI benefits
together with calculations concerning the amount of overpayment
of benefits - as determined by HRDC - and the administrative
penalties imposed:
- Jaswinder Singh Bassi needed 16 weeks of employment to
qualify for UI benefits and HRDC determined the amount of
his overpayment was $4,488 and imposed a penalty in the sum of
$1,590.
- Sukhwinder Kaur Toot required 26 weeks of employment in
order to obtain UI benefits; the amount of her overpayment was
$4,393 and a penalty in the sum of $1,528 was imposed.
- Ravjit Singh Gill needed 17 weeks of employment and HRDC
considered he had been overpaid UI benefits in the sum of $4,066.
As a result, a penalty of $2,247 was imposed.
- Gurcharan Kaur Johal needed 17 weeks of employment to
quality for UI benefits; HRDC decided she had been overpaid
the sum of $240 and imposed a penalty of $158.
[183] The witness - Gail Buckland - was cross-examined
by Darshen Narang. Buckland stated she received 4 weeks of
training at the HRDC Regional Office in Vancouver prior to
assuming her ICO position. During that time, she learned how to
conduct interviews and studied fact-finding techniques in a group
setting where case studies formed part of course material. As an
ICO at the Surrey office, she estimated she had handled more than
50 files involving farm labourers and had submitted - more than
10 - ruling requests to CCRA in the course of which she forwarded
relevant documents including the application for UI benefits,
ROE, payroll information, cancelled cheques and similar
documentation. Previously, she investigated an employment
situation that she referred to MFU for further action. Buckland
stated she discussed the SRC matter - by telephone - with
Fontaine on several occasions and met with other ICOs at two
scheduled meetings. Buckland stated that at one point - probably
in 1997 - HRDC entered into an arrangement with PICS to handle
the intake of farm labour claimants and to provide assistance to
individuals wanting to submit claims for UI benefits. Buckland
stated that PICS - earlier - had provided only
information and assistance to claimants but had not been
authorized to receive applications for UI benefits as an agent of
HRDC. Narang referred Buckland to Exhibit R-20, and to her typed
notes - tab 95 - of her interview with Gurcharan Kaur Johal on
December 18, 1997. Buckland agreed Johal had also worked for an
entity - S & K - in 1997 but stated it was clear from Johal's
answers to Qs. 16 and 17 that she worked for SRC in 1997 and for
S & K in 1997. Buckland agreed she had not asked follow-up
questions to clear up the obvious confusion arising from the
answers to Qs. 28-32, inclusive, regarding the identity of
Johal's drivers. Buckland stated it seemed that when a
Punjabi-speaking claimant used the word "mostly", it was not
intended to convey the same ordinary meaning assigned to it - in
English - because, to some people, "mostly" appeared to mean
"sometimes" when used in a particular context. Buckland estimated
her Surrey office was handling the claims of 40 SRC workers and
the investigation was shared with Morrow and Bowerman. From time
to time, their supervisor inquired about progress of the matter.
Buckland stated she interviewed Ravjit Singh Gill in order to
clear up various inconsistencies arising from his previous
interview with Janice Morrow when it appeared he had been paid
prior to the end of his work and there were discrepancies
surrounding his mode of transportation to work. Narang pointed
out that she took 13 pages of notes - Exhibit R-18, tab 101 -
during this particular interview on February 11, 1998 and
suggested she was not merely intending to clear up some
discrepancies. Buckland conceded she had pursued other avenues of
inquiry, including asking him - at p. 12 - point-blank whether he
had picked berries, to which Gill replied "No, only vegetables".
Buckland agreed that within the farming industry in the Lower
Mainland, even though ROEs - and other documentation - often
purport that wages were paid bi-weekly in order to conform with
provincial labour standards, that is rarely done as payments are
larger and irregular. Buckland stated that if an admission had
been obtained from a claimant that no work was done for SRC - as
purported in an ROE - that information was forwarded to an HRDC
adjudicator who dealt with the matter "in-house" by voiding the
claim and that file would not have been referred to CCRA for a
ruling on insurability. Buckland stated she had on file the 4
photos of SRC drivers that she showed to Gill during his
interview as well as the only photograph of Rana
- Exhibit R-20, tab 97 - that had been provided to her
and matched the one in Exhibit R-18 at tab 99. Buckland stated
the photographs of Kang and Master were better quality but not as
clear as the ones of Bant and Shindo and - on occasion -
originals of photographs were used but copies had to be made in
order to provide them to the ICOs participating in the course of
carrying out the coordinated scheme on May 26, 1997, when 14
claimants were interviewed at various HRDC offices. Buckland
recalled that Richard Blakely and a representative of MFU were at
the December 2, 1996 meeting where the SRC matter was discussed
by various ICOs and other persons employed by HRDC. Buckland
agreed she could have referred certain files of SRC workers
directly to the HRDC adjudicator but concurred with the overall
strategy discussed with Fontaine which was to submit all SRC
files to CCRA for a ruling on insurability. She stated she could
not recall any contact with Janet Mah - Rulings Officer - after
submitting a request for rulings and that although she has spoken
with Bernie Keays - Appeals Officer - from time to time, it was
not with regard to the SRC matter.
[184] Jeannie Suric was called to the stand and examined
by Johanna Russell. She stated she is employed - as a Subrogation
Officer - by HRDC where she started working in 1981, as a Claims
Assessor. Later, she fulfilled other roles until assuming the
position of ICO in 1992 where she remained until September, 2000.
She participated in the SRC investigation and worked on certain
files at HRDC offices in Richmond and Vancouver. Although she had
handled files concerning farm workers in the past, she had not
been involved previously in an employer-wide investigation
of the sort undertaken with respect to SRC. The SRC files were
assigned - by the Team Leader - to her and two other ICOs in the
Richmond office as part of their regular caseload and Suric acted
as coordinator with respect to SRC files assigned to ICOs in the
Vancouver office. She received photocopies of certain documents
and photographs from Fontaine together with a template of
questions to be used during a scheduled round of interviews with
claimants. She recalled receiving a summary of the information
provided by certain claimants that named their alleged drivers
during the course of their employment. Suric stated she does not
speak Punjabi and relied on HRDC employee Charan Dhillon to
interpret her questions and the subsequent answers provided by
SRC workers. Suric attended the meeting on December 2, 1997 and
the one on January 29, 1998, where the SRC matter was the focus
of group discussion. Suric recalled obtaining admissions from
claimants that they had not worked for SRC as alleged in the ROE
- or at all - and referred those files to the HRDC adjudicator in
her Richmond office. Counsel referred Suric to her handwritten
notes - Exhibit R-17, tab 91 - of the interview with Gurmail
Singh Gill on January 21, 1998, during which Charan Gill acted as
interpreter. At p. 15, Suric noted Gill told her he deposited his
pay cheques at the Royal Bank - at #3 and Williams - and - in
response to her query whether that was a joint account - stated
it was his own account and "not a joint account with my son".
Suric stated her notes were accurate and that - at p. 3 - she
recorded Gill's answers that he worked with Rana on farms in
Lytton. B.C. and during this period of working together, Rana had
asked Gill if he was interested in working for a company Rana was
going to start up. Suric stated she noted - at p. 7 - that Gill
told her he received two cheques, one for $1,950 and another in
the sum of $500 and that the rest of his wages were paid in cash.
As recorded in her notes at p. 8, Suric stated she explained to
Gill that he had only earned $3,136 at the point where he alleged
he had been paid $4,500 and asked why Rana would have paid him
more than he earned. Gill replied he needed extra money and asked
Rana for some but did not have to give Rana a receipt for that
cash. When referred to the "I Cash Money Give" purported cheque
- Exhibit R-17, tab 94 - Gurmail Singh Gill told
Suric the " X" on the signature line was his own but later stated
he did not remember. Suric stated she wrote down Gill's answers -
at p. 4 of her notes - that he was driven to work by "Mindo"
(Shindo) in a red van and by Rana who also used the red van but
sometimes drove a white van. When Suric advised Gill - tab 91, p.
5 of her notes - that Rana had no Driver's Licence and did not
drive, Gill replied, "I don't know, he picked me up and he did
drive". Suric noted Gill could identify Rana and Shindo from
photographs but could not recognize any of the 4 SRC drivers
in a series of other photographs.
[185] Suric was referred to Exhibit R-25, pertaining to
the appellant, Didar Singh Mehat, and to her notes -
tab 96 - of her interview on May 14, 1998 where Mehat was
accompanied by his daughter - Ravjinder Kaur Shergill - who acted
as interpreter. Suric noted - at p. 7 - that Mehat's son-in-law -
Suki Singh Lidhar - arrived and interpreted all questions and
answers from that point until the end of the interview. Suric
stated Mehat had been warned at the outset that he was required
to answer questions truthfully. On p. 4 - near the top - Suric
noted Mehat's response that he "planted vegetables, zucchini,
cabbage, cucumber, and I picked strawberries, raspberries and
blueberries". He also stated he was paid $8 per hour and not by
the pound for picking berries. When asked by Suric how much money
he received, his answer was "I received a total of $8,000 in cash
and cheques". He went on to explain that Rana would give him cash
- about $100 - every time he asked for some money. However,
earlier in her notes - still at p. 2 - Suric had recorded Mehat's
response to her question about how he had been paid, whether "by
cash, by cheque or both", as " I was paid by cheques only." Mehat
then added he had received 3 cheques but could not remember the
amounts because he was not "educated". Suric noted - at the
bottom of p. 3 - that Mehat's daughter - Ravjinder Kaur Shergill
- advised she wished to vouch for her father because she was
living with him at the time and knew he worked full time - in
1996 - 5 or 6 days a week and that Manjit (Rana) picked him
up. Suric stated she then asked about the colour of the van and
Shergill responded by stating she had not been living with her
father at the time since she was already living in Edmonton but
telephoned home every day and her family told her that her father
worked every day. Suric stated she wrote down the continuing
explanation by Shergill that she had not seen the van but her
family had told her it was red. Suric asked what would cause her
to phone from Edmonton to ask about the colour of the van in
which her father rode to work and why her family would be telling
her that Rana drove her father to work. Suric stated Mehat
intervened at this point to assert that he was driven by Shindo
and Binder. Suric stated that - as noted - she cautioned
Ravjinder Kaur Shergill that penalties could be imposed
if she was trying to mislead the investigation and from that
point on, formed the impression Shergill did not remember much.
Suric stated she was confident her notes correctly recorded the
circumstances pertaining to the interview and the questions asked
and answers given. With regard to working in Richmond, Suric -
near the bottom of p. 6 - noted Mehat told her he worked at a
Chinese farm and also at Mike's farm. During the interview, Suric
pointed out to Mehat that he maintained he had been paid a total
of $8,000 but was only entitled to receive net earnings of $6,088
according to his pay statement. Further, she informed him that
the only cheque was the "I Cash Money Give" so-called cheque (tab
98) and that it was not cashed nor was there any record of any
cheques to Mehat clearing the bank account of SRC. Mehat advised
Suric he would bring in his bank records in order to substantiate
deposits of pay cheques into his account. On May 28, 1998,
Mehat returned to the HRDC Richmond office and spoke with Suric
who typed up a note - tab 93 - of their conversation wherein
Mehat advised he did not have his bank records since the bank
needed time to produce them. However, Mehat advised Suric that
the bank confirmed he deposited 3 cheques and he stated he would
bring in the records as soon as they were received. Suric typed
notes - tab 90 - of a conversation with Mehat on June 9, 1998
when he and his daughter attended at the Richmond office and
produced two receipts - signed by Mehat - each in the sum of $500
with the name SRC appearing on both. Suric noted the explanation
provided that Mehat received these amounts - from Rana - in
January and February, 1996, because his daughter had been married
in December, 1995, he had no money left and approached Rana for
an advance. During that meeting, Suric stated Mehat told her that
in September, 1996, Rana gave him a cheque for $6,000 which was
deposited into Mehat's account at Richmond Savings and Credit
Union. However, the cheque was returned NSF so he went to Rana's
house and Rana gave him that amount in cash. Suric confronted
Mehat with the fact his own banking records - tab 92 and tab 95 -
did not verify this alleged transaction, and noted - at tab 93,
p. 2 - his reply "what the bank is telling you is not true. The
cheque came NSF and Rana gave me cash". Suric stated she
interviewed Surjit Kaur Mehat, wife of Didar Singh Mehat and took
notes - Exhibit R-39, tab 10 - of that interview during which
three cheques - totalling $7,000 - at tabs, 14, 15 and 16
payable to Surjit Kaur Mehat were shown to have been
cashed - rather than deposited - at Richmond Savings & Credit
Union and subsequently cleared through the SRC account at the TD
bank.
[186] Suric was referred to Exhibit R-27, pertaining to
the appellant Harbans Kaur Purewal and to notes - tab
90 - prepared on the Report of Interview form pertaining to her
interview with Purewal on February 6, 1998. Charan Dhillon
interpreted and at one point, the appellant's daughter -
Parminder Kaur Sihota - joined the interview and may have
participated thereafter in interpreting for her mother. Purewal
signed a Statutory Declaration - tab 91 - prepared by her
daughter after the contents had been translated from the written
word and interpreted - orally - to Purewal by her daughter.
Harbans Kaur Purewal signed "H Kaur" both on the declaration and
at the last page of the interview notes. Suric stated Purewal
made the solemn declaration in which she admitted working only
7-8 weeks for Rana - beginning July 7, 1996 - and not for 21
weeks as stated in her application for UI benefits and ROE. In
Suric's notes - at p. 6 - she wrote Purewal's response that she
"worked about six or seven weeks", starting in the middle of
July. Counsel advised Suric that Purewal had denied - during her
testimony - ever making those statements. Suric replied that her
notes were accurate and that Purewal - at p. 7 - commented that
she was aware of the months of the year and did not work in
September, nor October, nor November in 1996. Suric also stated
she noted Purewal's acceptance of the error on the ROE issued to
her by SRC because she had not worked until December 7, 1996 as
stated thereon. With regard to working hours, Suric stated she
was told that Purewal worked 7 days per week for 8, 9, 10
and - sometimes - 12 hours a day but was unsure whether her
hourly rate was $7, $8 or $7.50. At the bottom of p. 5 of her
notes, Suric recorded the response by Purewal that she received
$500 in cash, then a $1,000 or $2,000 cheque. Suric stated there
were two cheques payable to Purewal - tab 93 and tab 94 - one in
the sum of $6,000 and the other for $500, both of which cleared
the SRC bank. However, the Minister decided Purewal's insurable
earnings were only $2,744, based on 7 weeks work - from July 14
to August 24, 1996 - pursuant to her admission during the
interview with Suric and repeated in her solemn declaration, a
copy of which was presented to her at the conclusion of said
interview. On February 13, 1998, Harbans Kaur Purewal attended at
the HRDC Richmond office and spoke with Suric. She was
accompanied by Sonia Sidhu, a friend of her daughter. Suric took
notes - tab 88 - of the discussion to the effect Purewal wanted
to change her story and produced a piece of paper stating she
started work on July 14, 1996 and her last day of work was
December 7, 1996. Suric noted Purewal would not disclose who had
written those dates on that paper but stated it was done two
years ago.
[187] Suric stated she prepared the following
information including the number of weeks of employment required
by several appellants in order to qualify for UI benefits
together with calculations concerning the amount of overpayment
of benefits - as determined by HRDC - and the administrative
penalties imposed:
-
Gurmail Singh Gill needed 17 weeks of employment; HRDC determined
he was overpaid the sum of $1,805 in UI benefits but did not
impose a penalty.
- Didar
Singh Mehat also needed 17 weeks of employment to qualify for
UI benefits. HRDC calculated his overpayment as $6,180 and
imposed a penalty of $779.
-
Harbans Kaur Purewal needed 16 weeks of employment to receive
UI benefits. HRDC decided she was overpaid by $4,928 and
imposed a penalty of $1,680.
[188] The witness - Jeannie Suric - was cross-examined
by Darshen Narang. Suric stated she had worked on about 15 SRC
files and had undertaken numerous investigations in the past of
claimants who had performed farm labour. In the course of her
duties, she attempted to locate picking cards, cancelled cheques
and bank deposits in order to verify payment of wages and
conceded that this task is very difficult in the majority of
cases. Suric stated she would still send a file to CCRA for a
ruling if the issue concerned the extent of employment or the
amount of insurable earnings but not if the claimant had admitted
the work was never done. Suric stated that although each file was
looked at separately in order to determine whether a rulings
request would be submitted, files tended to be submitted - in
batches - to CCRA for rulings if - like the SRC matter - there
was a wider investigation of the employer involving several
employees. Suric stated she did not meet Janet Mah until 2004,
never met Bernie Keays and spoke - on the phone - with Richard
Blakely only with regard to the need to ask specific questions in
order to satisfy requirements for a CCRA ruling on the
insurability of employment of certain SRC workers. In response to
Narang's question why she would contact Blakely - a Rulings
Officer - when she had previous experience in such matters, Suric
replied her query was related to the lack of records, some of
which were ordinary documents that impinged upon the proof of
payment of wages or other relevant matters. She agreed Fontaine
had supplied her with some cancelled cheques, payroll statements
and other documentation but she preferred to review banking
records, picking cards and/or time sheets to corroborate the
claimant's assertion his or her wages had been paid by the
employer. Suric agreed she had the authority to issue a demand on
financial institutions, accountants or others to produce
documents - assuming that would bring about the desired results -
but stated there was no legal basis permitting ICOs to compel an
employer to attend an interview. Suric stated she considered
investigations to be case-specific and in some instances the
employer may be the first person interviewed. She wanted to
review picking cards but none were ever produced that were
relevant to the claimants whose files she had been assigned. She
communicated with Fontaine as the investigation progressed and
responded to his earlier request that ICOs advise him of the
details if and when they obtained an admission from a claimant
that no work had been performed for SRC. Suric stated ICOs from
various offices shared information concerning these admissions as
they were received. She stated CCRA is involved only after a
request for a ruling on insurability has been submitted and any
subsequent contact would be limited to inquiring whether a ruling
had been issued and if not, the probable date on which the ruling
could be expected. Suric stated she understood that a Rulings
Officer was independent and at liberty to arrive at his or her
own conclusion. With respect to Harbans Kaur Purewal, Suric
stated she was prepared to remit the file to the HRDC adjudicator
based on the information in Purewal's Statutory Declaration that
she had only worked 7 weeks but the appellant attended the HRDC
office soon thereafter to assert the ROE was correct and that she
had worked until December 7, 1996 according to the dates on the
piece(s) of paper she presented to Suric as verification. Suric
stated she had reviewed documents obtained from Bains Tax - the
SRC bookkeeper - in which Revenue Canada and WCB had been advised
SRC had no employees during the period from September to
December, 1996. Narang referred Suric to notes
- tab 102 - apparently made by Bernie Keays
concerning a telephone conversation he had with her on February
15, 2000, about Harbans Kaur Purewal and the initial confusion
surrounding whether Purewal was in India during 1996 as well as
Purewal's admission that she did not work from September to
December, 1996. Suric stated she had no recollection of that
conversation but was aware an Appeals Officer was entitled to
conduct an independent review with respect to any ruling issued
by a Rulings Officer. With respect to her interview with Didar
Singh Mehat, Suric stated Mehat's daughter volunteered the
information that she had not really been living at home in 1996
but was already living in Edmonton. Suric agreed it is difficult
to recognize the colour of a van from a black and white photocopy
and stated she showed these sorts of photocopies to claimants to
identify a style of van rather than any colour. Concerning the
interview with Harbans Kaur Purewal, Suric stated she was
satisfied the appellant understood the months of the year at
issue and only signed the Statutory Declaration after her own
daughter explained it to her. Further, Mrs. Charan Dhillon was
present throughout and could have assisted in explaining matters
in Punjabi.
[189] Counsel for the respondent did not re-examine.
[190] Joann McInnes was called to the stand and examined
by Johanna Russell. McInnes stated she was employed by HRDC from
1975 until 1978, returned in 1982 and has worked there since
then. She assumed the role of ICO in 1997 and worked in the
Burnaby office until May, 1998 when she transferred to Surrey. In
1982, she worked as a Claims Adjudicator/Insurance Officer, a
position that required fact finding in addition to adjudicating
farm labour claims. She does not speak Punjabi. McInnes stated
her Supervisor assigned 13 files - pertaining to former SRC
workers - to her and requested she assist Fontaine with the SRC
investigation. Fontaine handed her a template of questions he had
prepared and she elected to use that form during her interviews
of Taro Kaur Bassi and Ajmer Kaur Gill. McInnes
interviewed Bassi on October 29, 1997, and made handwritten notes
- Exhibit R-12, tab 92 - during the interview. Taro Kaur Bassi
signed an authorization - tab 91 - permitting Kulwinder Singh
Bassi to act as her representative when dealing with HRDC.
McInnes stated Taro Kaur Bassi spoke only Punjabi and did not
understand English. Therefore, McInnes asked Kulwinder Singh
Bassi to interpret her questions to the appellant into Punjabi
and to interpret the answers into English. Since Taro Kaur Bassi
had worked earlier in 1996 for her brother Sohan Kalair,
operating as Kalair Farms, the ROE - Exhibit R-51 - issued in
respect of that employment formed part of her application for UI
benefits. In answering Q. 17, Taro Kaur Bassi stated she was paid
by the flat for picking raspberries and strawberries, by the
pound for picking blueberries and at the hourly rate of $7 for
the rest of the work. McInnes noted - at Q. 18 - Bassi's answer
that she was paid a total of $3,500 by "cash or cheque". In
responding to Q. 29, Bassi identified a cheque - Exhibit R-12,
tab 90 - dated July 6, 1996 - in the sum of $3,000 - that was
negotiated on December 3, 1996 at the CIBC in Vancouver. Later,
Bassi added that she was paid about $500 in small amounts of cash
prior to receiving said cheque. McInnes stated her notes were
accurate and she had adhered to her usual practice of providing
an opportunity to Punjabi-speaking claimants to have the
interview - including both questions and answers - explained in
Punjabi before requesting them to sign the form at the end of the
interview. Bassi was asked to sign but declined. McInnes advised
the Court that when taking notes, she abbreviates the word
"claimant" by writing "clt".
[191] McInnes was referred to Exhibit R-15, pertaining
to the appellant, Ajmer Kaur Gill, and to her handwritten
notes - tab 92 - of an interview on October 30, 1997. Pursuant to
the authorization at tab 93, Jasbir Singh Sandhu acted as
interpreter. Sandhu advised McInnes that he helped Gill prepare
her application for UI benefits on December 2, 1996. McInnes
noted that the appellant - in responding to Q. 8 concerning
details of the work performed - stated she always worked outside,
except when planting seeds in little pots of soil as that task
was carried out inside a greenhouse. In answering Q. 9,
Gill stated she rode in a yellow bus driven by Manjit Rana.
McInnes stated she was careful to ensure the exact spelling of
names given to her during an interview because many names sounded
similar. Even when she thought the answer was wrong, she recorded
the precise words used by the person answering the question and
did not add information from her own knowledge nor amend the
answer so it would conform with the facts known to her. McInnes
stated Gill named Shindo as the person who drove her to work in a
brown van. At Q. 18, Gill stated she thought she had been paid
"two or three times" but borrowed money from Shindo or Rana for
her needs and also obtained a loan from her daughter. McInnes
noted Gill's explanation that she was paid $1,000 in August or
September, 1996 and received a final cash payment in November.
Gill's answer - as noted by McInnes - to Q. 17, was that she
worked 7 days a week at $7 per hour and - at Q. 23 - stated she
may have taken one day off but cannot specifically recall. Gill -
at Q. 19 - informed McInnes that she worked up to 10 hours and is
certain of that number because she and other workers were
informed by the bus driver how long they had worked on a given
day. Concerning her layoff, the explanation recorded by McInnes
to Q. 4, was that Rana had advised Gill a couple of days earlier
- probably while working at the Chinese Farm - she would be laid
off soon. McInnes interviewed Gill again on November 18, 1997 and
photocopied pages of entries - tab 96 - in the bank book
pertaining to her account at the Bank of British Columbia. At p.
3 of her notes, McInnes wrote that "sometimes the clt (claimant)
would go to where Manjit Rana was at to get her money if he was
staying at a house where she could walk to". Counsel informed
McInnes that Gill testified in Court that she never met Rana in
1996. McInnes responded by asserting her belief that her notes
were accurate. McInnes stated she calculated Gill needed 26 weeks
of employment in order to qualify for UI benefits and that
HRDC determined Gill had been overpaid the sum of $4,784 and
imposed a penalty of $1,664. McInnes also obtained information
pertaining to Taro Kaur Bassi which disclosed Bassi required only
16 weeks of employment to obtain UI benefits. In her case, HRDC
decided she had been overpaid the sum of $4,497 and imposed a
penalty of $1,190.
[192] The witness - Joann McInnes - was cross-examined
by Darshen Narang. She stated she received 5 days training prior
to occupying her position as an ICO. Prior to conducting
interviews, she reviewed relevant material such as ROEs,
applications for UI benefits, cancelled cheques and certain
calculations performed by internal staff. She did not have the
pay statement - tab 89 - that pertained to Ajmer Kaur Gill in her
file. McInnes stated it was usual practice to take a photograph
of an interviewee after obtaining his or her consent. While
interviewing Taro Kaur Bassi and/or Ajmer Kaur Gill, she did not
have any photographs of Rana or SRC drivers available to show
them. With respect to the interpretation from Punjabi to English
provided by Kulwinder Singh Bassi, on behalf of Taro Kaur
Bassi, McInnes recalled she had some difficulty understanding
him. McInnes agreed she had not asked follow-up questions in
order to obtain information from the appellant about the nature
of work performed on a month-by-month basis. When
interviewing Ajmer Kaur Gill, McInnes stated she was "faithful to
the template" and asked Q. 1 and recorded the answer even though
she was already satisfied Gill could not speak or understand
English.
[193] Counsel for the respondent did not re-examine.
[194] Barb Long was called to the stand and examined by
Johanna Russell. She testified she had been employed as an ICO at
the HRDC Abbotsford office since 1993. Earlier, she was an
Immigration Officer and in that position was accustomed to
carrying out fact-finding tasks and interviewing people in
relation to various situations including extensions of work
permits. She does not speak Punjabi. She was assigned two files
relating to SRC farm workers. One was dealt with quickly when the
worker admitted the work had not been performed as alleged in the
ROE issued by SRC. The other matter concerned the appellant
Sharda Kaur Joshi. Long stated about 80% of her workload involved
farm labourers and - earlier in her career as an ICO - had
participated in an investigation concerning between 5 and 10
employees of the same employer. Long stated she spoke with
Fontaine and reviewed other files where SRC had been named as the
employer. She had not attended either of the two meetings where
Fontaine and other ICOs discussed the SRC situation. Long was
referred to Exhibit R-36 and to her handwritten notes
- tab 92 - of her interview with Sharda Kaur Joshi on
May 26, 1997. Joshi was accompanied by her husband - Sanjay Singh
Joshi - who interpreted on her behalf. At the conclusion of the
interview, Joshi signed on the last page of the form. The pay
statement - tab 88 - showed net earnings in the sum of $6,075
resulting from gross pay of $7,000. When asked - at Q. 7 - to
provide details of her work, Long stated Joshi recited the tasks
performed, all of which related to picking berries without any
mention of any vegetable work. In response to Q. 28, Joshi said
she negotiated her $4,000 cheque - tab 89 - at the Gladwin and
South Fraser Way branch of the TD bank. Long pointed out the bank
stamp on said cheque proves it was cashed at the SRC bank at 6544
Fraser Street in Vancouver on October 7, 1996. Regarding the
method and frequency of payment, Long stated Joshi said she was
paid every two weeks, mostly by cash as well as by cheque,
details of which she could not recall. Long noted - at Q. 9 -
Joshi's answer that "Bant picked me up in a van. Always picked up
in a van". Long referred to her notes - tab 93 - where Joshi
attended the HRDC office in order to provide two receipts for
cash allegedly paid to her by SRC and to advise that the $4,000
cheque - tab 89 - had been negotiated at the employer's bank and
not deposited to her account, as stated earlier. The photocopy of
two receipts - tab 111 - indicates each is in the sum of $1,000
and are dated July 27, 1996 and August 1, 1996, respectively. The
signature "Sharda Joshi" appears on both. Long stated a memo
- tab 107 - was made by an HRDC employee to
record that Sanjay Singh Joshi brought in a T4 for Sharda Kaur
Joshi as well as some bank statements. Long stated Joshi needed
18 weeks of employment in order to qualify for UI benefits.
However, because the Minister decided she had not been employed
in insurable employment with SRC, HRDC subsequently determined
she had been overpaid benefits in the sum of $2,925 and imposed a
penalty of $1,126. The rulings request - tab 86 - in respect of
Joshi was submitted by Fontaine.
[195] The witness - Barb Long - was cross-examined by
Darshen Narang. She stated she received 3 weeks training prior to
beginning as an ICO. Her caseload of 50-60 files is 80% farm
related and is composed of various scenarios including those
where the employer and employee are related. At the outset she
worked with a mentor and reported to a Supervisor. Prior to the
SRC matter, she had not been involved with such a large-scale
investigation nor worked with MFU on any file. While working as
an Insurance Officer, she decided on the correct amount of a
benefit overpayment and decided the appropriate penalty - if any
- to be imposed.
[196] Counsel for the respondent did not re-examine.
[197] Clare Turgeon was called to the stand and examined
by Johanna Russell. She stated she is employed - by HRDC - as a
Program Officer in the Abbotsford office. She started working as
an ICO - in 1995 - at the Burnaby office and was assigned files
of SRC workers. Earlier in her public service career, she had
been an Enforcement officer at Canada Immigration and before that
served 9 years as an RCMP officer in Richmond. While working at
Canada Immigration, she investigated cases concerning individuals
suspected of being in Canada illegally and/or working without
authorization. In that capacity, she had powers of arrest and the
position required her to conduct numerous interviews. Turgeon
stated she interviewed two SRC workers but neither of them are
appellants in the within proceedings. Because Fontaine had a
large caseload of SRC workers, she volunteered her services to
assist him in assuming some duties related to that investigation.
Turgeon stated she and another HRDC employee - Patti Lintick -
interviewed Amanjit Dhesi - an employee of Bains Tax - on May 26,
1997, at the Bains Tax office and took notes - Exhibit R-4, tab 6
- contemporaneously. Turgeon stated Dhesi advised that she
prepared payroll, WCB forms, Revenue Canada remittances and ROEs
for SRC. Turgeon was present when Patti Lintick interviewed
Ranjit Bains and prepared typed notes - tab 7 - of that
interview. Turgeon stated ICOs are authorized to receive
Statutory Declarations pursuant to a ministerial authorization
and she attended to the signing of the declaration by Inderjit
Singh Atwal - Exhibit R-9, tab 90 - on June 12, 1997 because
Fontaine had not received authority pursuant to subsection 18(4)
of the Employment and Immigration Department and Commission
Act, 1976-1977 C. 54, s. 2 to administer oaths and/or
affirmations to persons making a solemn declaration. Turgeon
stated she had a specific recollection of Manjit Rana signing a
solemn declaration before her on May 27, 1997, wherein he
stated SRC did not have any business activity before February 23,
1996, and described his behaviour that day as "confused and out
of sorts".
[198] The witness - Clare Turgeon - was cross-examined
by Darshen Narang. She stated she has extensive experience
conducting investigations and had acted as lead investigator in
some matters. However, those earlier cases were not as large in
scope as the SRC matter which involved over 100 ROEs that had
been issued by SRC. Turgeon stated Amanjit Dhesi advised that she
completed ROEs for SRC by using a program on her computer and
inputting the hours worked and that the earnings statements were
completed at the end of the work cycle by referring to a book,
her own bi-weekly calendar and the hours worked by a particular
worker. Dhesi told Turgeon she had not seen any SRC cheques to
indicate how often workers had been paid and merely calculated
payments on a bi-weekly basis for a particular period of
employment relevant to a specific ROE. Turgeon stated her notes
of the interview with Dhesi recorded the response - at Q. 32 -
that Rana signed each ROE in front of her.
[199] Counsel for the Crown did not re-examine the
witness.
[200] Sharon Belanger was called to the stand and
examined by Johanna Russell. She stated she started at HRDC in
1971 and after working as an Insurance Officer for several years,
became an ICO in 1996. She does not speak Punjabi. At the request
of Fontaine and with the concurrence of her supervisor, she
interviewed Harjit Singh Gill - in English - using a template of
questions supplied by Fontaine in the form of a diskette which
she inserted in her computer. As each question was asked, she
took notes - Exhibit R-4, tab 401 - of the answers given by Gill.
The ruling request - Exhibit R-4, tab 394 - was submitted by
Fontaine and she had no subsequent contact with Gill.
[201] In cross-examination by Darshen Narang, Turgeon
stated she was waiting for Gill to provide certain documents
prior to formally signing off on her interview. She stated she
had intended to enter her handwritten notes into the template -
in a file in her computer - on which the prepared questions were
already located so she could print out a copy of the prepared
questions and Gill's responses in order to provide him with an
accurate copy of the interview. Turgeon agreed Gill returned to
the HRDC office on May 27, 1997 to drop off a copy of his airline
ticket to India and a T4 slip. Turgeon referred to her notes -
tab 403 - indicating Gill could not find his T4 issued by SRC and
agreed to bring in his entire income tax return at a later
date.
[202] Counsel for the respondent did not re-examine.
[203] Joan Sykes was called to the stand and examined by
Johanna Russell. She stated she started working for HRDC in 1972
and was an ICO between 1975 and 1980 when she left that position
to work as an adjudicator. In 1992, she returned to her former
ICO position and worked out of the Burnaby office. Currently, she
is a Team Leader in charge of supervising other ICOs and does not
carry a case load. She does not speak Punjabi. In 1998, she was
Acting Team Leader and had a supervisory role with respect to
those ICOs in her office - including Fontaine - working on SRC
files. She attended one meeting - either in December, 1996 or
January, 1997 - at which Fontaine and other ICOs were present,
some of whom offered to participate in the investigation
concerning SRC and its employment practices during 1996. Sykes
stated her notes - Exhibit R-10, tab 92 - indicate she
interviewed Sharinder Singh Bagri on November 7, 1997 but has no
specific recollection of that event. She stated her usual
practice when conducting an interview is to allow the interviewee
to read over her notes and to record any comments about the
contents of the written material and/ or any revisions or
clarifications of any answer given previously. Her notes indicate
a friend of Bagri attended with him and - probably - interpreted
for him. Sykes noted Bagri's answer to Q. 9 about mode of
transportation to work was that he rode the van/bus mostly but
sometimes - once or twice - used his own vehicle, a Toyota
Corolla. Sykes stated she conducted the interview but Fontaine
submitted the request - tab 86 - of a ruling on Bagri's
insurability.
[204] Sykes was referred to Exhibit R-26, pertaining to
the appellant Prabhjot Kaur Minhas and to the notes - tab 92 - of
her interview with Minhas on June 25, 1997. The questions and
answers were interpreted by Sarb Sandhu, Certified Court
Interpreter. Sykes stated that apart from looking at her notes,
she has only a vague recollection of this interview. Sykes noted
that she recorded that appellant's answer to Q. 22 - concerning
days of work - as "Saturday to Thursday - every Friday,
2-2 1/2 months - after that it was either Sat or
Sunday...". Answering the next question, Minhas stated she had
not missed any work during her employment with SRC. Sykes was
referred to a photocopy of the ROE - tab 87 - issued by SRC which
indicated that she was laid off due to a shortage of work, as
signified by the entry of "Code A" in the relevant space at Box
19. Sykes stated she noted the appellant's response - to Q. 30 -
that she was laid off because SRC advised her there was "no work
for us". Sykes stated she considers her notes of that interview
to be accurate, including the response to Q. 7 where Minhas
described her work and said she was picked up at her home and
driven by "Harjeet" to the "veg/berry area". Sykes stated she
wrote down the answer given to Q. 9 that - as previously stated
by Minhas - Harjeet picked her up, although occasionally she or
her husband would drive. Regarding Q. 20, Sykes recorded the
appellant's answer that she did not sign a time sheet but would
write down her hours after returning home and that Harjit - the
bus driver - also kept a record. While answering the next
question, Sykes noted Minhas said she never reported to anyone.
At Q. 28, Minhas told Sykes she worked during November at Mike's
Farm in Richmond. Sykes stated the request for a ruling on the
insurability of employment - tab 85 - was submitted by
Fontaine.
[205] Sykes stated she retrieved information from HRDC
files pertaining to the appellant Sukhwinder Kaur Hundal which
indicated she needed 26 weeks of employment to qualify for UI
benefits and although HRDC decided she had been overpaid in the
sum of $5,425, there was no record that any penalty had been
imposed.
[206] The witness - Joan Sykes - was cross-examined by
Darshen Narang. Sykes stated it was usually within the discretion
of an ICO whether a request for a ruling on insurability would be
submitted to CCRA. However, she was aware there was a coordinated
investigation with respect to SRC involving a large number of
workers alleged to have been employed by that company. Further,
she knew Fontaine was the coordinating ICO and that he had
prepared a template of questions to be used during interviews of
claimants. Sykes stated the usual HRDC practice when a
Punjabi-speaking claimant attends an interview accompanied by
someone, is to inquire about the relationship of that individual
to the claimant and to ensure this person is capable of
understanding - in both English and Punjabi - the context of the
interview. Sykes stated her practice was to pose a question in
English which the interpreter put to the claimant in Punjabi and
after receiving an answer - in Punjabi - would tell Sykes -
in English - what had been said. She added it is usual to provide
a copy of her notes to the interviewer but could not recall
whether a copy had been given to Sharinder Kaur Bagri. Sykes
stated she recorded the answer given by Bagri - Exhibit R-10, tab
92, Q. 18 - that she had been paid $2,000 - by one cheque -
and that the rest of her wages were received in cash for a total
of about $9,000.
[207] Sykes was referred by Darshen Narang to the notes
of her interview with Prabhjot Kaur Minhas - Exhibit R-26, tab 92
- that had been interpreted by Sarb Sandhu, a Certified
Court Interpreter. Sykes stated it was preferable to use a
certified interpreter but it depended on availability of funds
within her office that could be allocated for that purpose. Sykes
recalled Minhas said her co-workers probably knew her as "Lally"
which was the nickname she used for everyday purposes. Sykes
stated that in her opinion Minhas would not have been able to
comprehend - fully - the interview if it had been conducted
wholly in English. Sykes recalled the interview had to be
interrupted in order to permit Minhas to breastfeed her infant
and stated this point was relevant because - in answering
Q. 19 - Minhas said she did not breastfeed her first child
as she knew she was going to be working. Sykes agreed she had not
followed her normal practice of recording the times at which the
interview began and ended and whether there was any interruption
for a particular reason. Sykes stated she had no further
involvement with the Bagri or Minhas files following completion
of those interviews. She had no contact with either Janet Mah or
Bernie Keays or Richard Blakely, although she knew Blakely
was a Rulings Officer.
[208] Counsel for the respondent did not re-examine.
[209] Mohinder Singh Herar was called to the stand and
examined by Johanna Russell. He stated he was employed by
HRDC for 35 years and retired in November, 1999. During his
career, he never worked as an ICO but occupied administrative
positions in addition to serving as an Insurance Officer from
1972 to 1981, prior to moving to Coquitlam. From 1989 until
retirement, he worked as a Public Liaison Officer and
communicated in English and Punjabi- via different forums,
including television - with the Indo-Canadian community in order
to explain the workings of the UI - later EI - system,
particularly during periods of change to the regime with respect
to such matters as insurability, benefits, availability of new
programs and job search technology. In that role, he was required
to educate and facilitate but did not exercise any adjudication
function. In 1996, Herar completed a court interpretation course
and was approached by ICOs to assist them in conducting
interviews with Punjabi-speaking claimants - and others - in
relation to an investigation of farm labour employment. Herar
stated he was born in Punjab - in 1938 - where he completed 10
years of school followed by 4 years at college where he obtained
his Bachelor of Arts with a major in English and an elective in
Punjabi. At college, the math and science courses were taught in
English. In addition to Punjabi and English, Herar is able to
speak, read and write Hindi, a language that is written totally
different than Punjabi. He arrived in Canada in 1960 and began
working at HRDC in 1964. Herar stated that in order to obtain his
certificate from the Vancouver Community College program in
interpretation, he had to pass three different entrance
examinations and then took courses which were divided into three
parts, one of which required attendance in court to observe the
proceedings. He studied legal terminology and had to pass further
exams in order to receive the certificate as a Court Certified
Interpreter. Although he received that designation in June, 1996,
and had intended to retire from his employment, he remained at
HRDC for another 3 years. Following retirement, he interpreted in
various courts exercising both criminal and civil jurisdiction
and provided his services to several hospitals - including Surrey
- two days a week in order to interpret for Punjabi-speaking
persons who wished to access the healthcare system. He took a
course in medical terminology to enhance his ability to
communicate in that specialized field. Currently, Herar provides
his services to a commercial entity offering interpretation
services to the public. Since arriving in Canada, Herar has
visited India - with his family - every two or three years
and since retirement has been able to travel there every year and
stay 6 weeks. Herar stated that when he was interpreting at
an HRDC interview he never asked his own questions or added any
comments. If necessary, he would inform the interviewer that he
had to clarify the answer given and would attempt to do so but
until the meaning of the response was clear, he would not
interpret it - into English - for the interviewer.
Herar stated he has no specific recollection that he was the
interpreter during HRDC interviews conducted with
Jaswinder Kaur Cheema, Gurbachan Singh Gill, Sukhwinder
Kaur Toot or Harbhajan Singh Kang. Herar stated his role as an
interpreter is merely to act as a conduit between persons to
overcome the language barrier.
[210] Monhinder Singh Herar was cross-examined by
Darshen Narang. Herar stated he never lived in a village in India
and had not worked there following graduation from college,
although he had the opportunity to visit many farms
- including the one owned by his grandfather - because
his father was involved in a farm-related business. He began
learning English in Grade 5 and even though most courses were
taught in English, teachers and students spoke to each other in
Punjabi. Herar stated he has spoken with people from various
economic and social backgrounds and has not encountered any
serious difficulties in carrying out the function of interpreting
Punjabi to English and vice-versa since he completed the
interpreting program in 1996. Narang referred Herar to the
interview of Gurbachan Singh Gill - Exhibit R-16, tab 87 -
and to the questions therein. Herar stated his practice was to
take a question and break it down into segments in order to
ensure the interviewee understood. He was aware that the people
were farm workers and if he sensed someone did not understand the
question - as interpreted in Punjabi - would obtain permission
from the interviewer to attempt to clarify the meaning. Herar
stated he interprets an answer as closely as possible even if
there is an obvious error - such as a place name or product -
contained in a response. He stated there are Punjabi equivalents
for the English words and/or phrases, such as "always", "never",
"seldom", "now and then", "once or twice" but in his experience
they are not used with precision. Herar stated he is not familiar
with the Punjabi calendar but is aware farm workers often rely on
a calendar produced and distributed by VanCity Credit Union which
also shows the months according to the Punjabi version.
[211] In re-examination by counsel for the respondent,
Mohinder Singh Herar stated he would not substitute his own
estimation of the equivalent month on the English calendar if a
person referred to a certain month in accordance with the Punjabi
calendar. Instead, he would provide a literal interpretation of
the response.
[212] Tejinder Bhandall was called to the stand and
examined by Johanna Russell. She stated she is currently employed
- by HRDC - as a Service Delivery Representative but began as a
clerk-assistant - in 1991 - at the New Westminster office. She
also worked as an Immigration Clerk for about 6 months prior to
returning to HRDC where she occupied the position of clerk for
the Board of Referees in the Vancouver office. She has not worked
as an ICO. During 1997 and 1998, Bhandall worked as a Customer
Service Representative and also assisted with Punjabi
interpretation at HRDC and Immigration Canada. Each year during
farming season, she participated in group information sessions
which were held two or three times a day for a 6-8 week period.
Information was provided in both Punjabi and English at various
locations including PICS, rented premises or within an HRDC
office, space permitting. The sessions were carried out in a
classroom setting and were attended by about 30 people who would
be provided with certain government forms pertaining to their
employment and the various questions therein and the types of
responses thereto were discussed - in Punjabi - one by one.
Bhandall stated she explained the rights and obligations of
workers to the group and provided pamphlets in Punjabi explaining
the mechanics of the UI/EI system including reporting
requirements and rights of appeal. She also explained the proper
method of completing an application for UI benefits. She has
acted as an interpreter for ICOs during an interview as well as
speaking Punjabi to people at the front desk in reception or on
the telephone in order to either receive or provide information.
On occasion, she translated written material from Punjabi to
English. She was born in Punjab and lived there until age 16 when
she completed Grade 9. She is fluent in English and Punjabi,
reads and writes both languages and speaks Hindi. She stated she
speaks Punjabi every day and teaches that language to her
children. She has a lot of relatives in India and speaks to them
regularly during telephone calls. She visited India recently for
the first time since 1992 and stated she had no difficulty
communicating with people there. She had lived in a village for
15 years and was aware some communities had a different word to
describe something but the differences did not affect an entire
sentence so as to make it incomprehensible. She did not know
Fontaine and stated she only interpreted the questions posed by
the ICOs and the answers given by an interviewee without asking
anything or providing any response of her own volition. In the
event she perceived a lack of understanding on the part of the
person being questioned, she would ask the ICO if he or she
wanted to ask other questions for the purpose of clarification.
She stated she had not encountered any difficulty in interpreting
references to months of the year and in her experience cannot
recall any occasion when someone ever stated a month based on the
Punjabi calendar. Bhandall stated she had no specific
recollection of interpreting the interview with Harbhajan Singh
Kang conducted by Bowerman on May 26, 1997 although she met Kang
later in a social setting. She did the translation into English
of the Statutory Declaration - Exhibit R-5, tab 168 -
written in Punjabi by Kang.
[213] Tejinder Bhandall was cross-examined by Darshen
Narang. She stated her work has required daily use of Punjabi for
the past 10 years. When interpreting at an interview, sometimes
she had a template of questions in front of her to use as a
reference, particularly if the questions asked are not in the
context of ordinary subject matter. At the beginning of each
interview conducted by an ICO, she interprets the warning
concerning potential penalties for knowingly providing false
information. If required, she will break a question into segments
and interprets the answer faithfully even if it appears to make
no sense. Prior to anyone signing a solemn declaration, it is her
practice to read the contents aloud in Punjabi. However, with
respect to an entire interview, usually she would not review -
with the interviewee - the entire contents of the notes taken by
the ICO. Bhandall stated that in her opinion although there is
some variation between village and urban usage in the Punjabi
language, it is mostly in terms of accents and that does not pose
a problem nor is any barrier created by a generation gap between
speakers.
[214] Harby Rai was called to the stand and examined by
Johanna Russell. She stated she is employed by CCRA as a CPP/EI
Rulings Officer in Vancouver and has held that position since
November, 1992, although she is currently carrying out a
supervisory function in respect of complex files, generally
involving employment of farm labourers. She did not issue any
rulings with respect to any SRC workers. Rai was born in Punjab,
India but came to Canada at age 9. She did not enrol in any
formal Punjabi language instruction thereafter but her parents
lived with her aunt and uncle and her mother speaks only Punjabi.
She lived at home until age 28 and then married a man who
immigrated to Canada from India. His first language was Punjabi
and his parents came to live in Canada and they spoke only
Punjabi. As a result, Rai stated she spoke Punjabi every day. In
1995, she went to India for a wedding and had no difficulty
communicating with people there. She does not read nor write
Punjabi. In 1992, she was the only Punjabi-speaking person in her
office and began assisting other Rulings Officers. In her
experience dealing with Punjabi-speaking claimants and others,
she cannot recall any person using the Punjabi calendar to refer
to a month of the year. Instead, they say either "June"
- for example - or will state that such and such
happened during the "6th month". Rai recalled asking questions of
Sharinder Singh Bagri and Taro Kaur Bassi following a request for
assistance from Janet Mah. Rai stated that some Rulings Officers
will write out the questions they wish her to ask while others
rely on her own experience as a Rulings Officer and permit her to
pursue her own line of inquiry.
[215] The witness - Harby Rai - was cross-examined by
Darshen Narang. Rai agreed she probably conducted the telephone
interviews of Sharinder Singh Bagri - Exhibit R-10,
tab 82 - and Taro Kaur Bassi - Exhibit R-12, tab 82 - and
recorded their responses which were passed on to Mah who typed up
her own notes. Rai stated Mah was one of 17 Rulings Officers
working out of the West Pender office in Vancouver and has
assisted Mah on other occasions with Punjabi interpretation. Rai
could not recall why she would have spoken to someone called
Navjot who had apparently obtained permission from Bassi to
transmit - on her behalf - answers to questions when she could
have spoken directly to Bassi in Punjabi. Rai stated she used
"sugmal" when speaking to Bagri and informed Mah that it meant
radish or turnip. Rai agreed with Narang's suggestion that
technically "sugmal" is defined as "turnip" in English.
[216] Counsel for the respondent did not
cross-examine.
[217] Kal Brown was called to the stand and examined by
Johanna Russell. She stated she has worked for HRDC since March,
1990, in various positions involving deliver of service to
clients. She speaks Punjabi and began interpreting shortly after
starting work at HRDC but is not able to translate written
material from Punjabi to English or English to Punjabi. She has
never worked as an ICO but has experience in interpreting during
interviews conducted by ICOs. She was born in Singapore and
arrived in Canada at age 11. She regards English as her number
one language, followed by Malay, Chinese (Fukien dialect) and
Punjabi. Her mother and father spoke Punjabi at home and although
her mother was born in Singapore, her parents spoke Punjabi in
social situations. Brown stated she spoke to her brother and
sister in Fukien but used Malay in conversation with friends.
Instruction in school was all done in English. Brown stated she
cannot read nor write Punjabi. She has not encountered any
difficulty in understanding Punjabi speakers that could not be
resolved quickly by merely continuing the conversation in order
to arrive at an understanding of the words spoken. In her
experience working at HRDC and interpreting on numerous
occasions, she has never had any Punjabi-speaking person use a
Punjabi calendar in order to describe a month of the year. Brown
stated she would faithfully interpret - to the interviewing ICO -
the answer given even if it was "I don't understand the
question". Brown stated she had no specific recollection of
interpreting the interviews - by Bowerman - of Harbans Kaur Kang
nor of Bowerman's interview with Harbhajan Singh Kang.
[218] The witness - Kal Brown - was cross-examined by
Darshen Narang. She stated she has no ongoing opportunity to
converse in the Fukien dialect or in Malay but does meet daily
with friends and family who speak Punjabi. She stated she began
assisting ICOs about 6 months after starting work at HRDC and
converted English questions to Punjabi and Punjabi answers to
English, as required. Brown stated that at the beginning of an
interview, she introduces herself, explains her role and waits
for the interviewer to ask the first question. At some point, the
claimant is advised of his or her rights in respect to appeals
within the HRDC system. If a warning is interpreted, she inquires
whether the significance of that admonition is understood and if
she receives a negative response, seeks direction from the
interviewing ICO about providing additional explanation. In
Brown's experience interpreting the responses of claimants,
Punjabi speakers refer to ROEs by using the English words
"stamps" or "weeks paper" - rather than a Punjabi word - only
they pronounce it with a Punjabi accent as in "veeks paper". When
showing a claimant a cheque, she explained the date and the
amount shown thereon. If an ICO wanted the interviewee to sign
the form at the close of the session, she translated that request
but the entire interview was not read back to the individual
prior to signing.
[219] Counsel for the respondent did not re-examine.
[220] Charan Sader Dhillon was called to the stand and
examined by Johanna Russell. Dhillon states she is employed
- by HRDC - as an ICO and works out of an office in Vancouver.
She began working for HRDC - as a filing clerk - in 1987 and
later assumed the position of Insurance Officer. She became an
ICO in 1997 and took some formal training in 1999. She speaks
Punjabi and soon after starting work at HRDC began assisting
Punjabi-speaking people who had dealings with her office. In
1989, she was approached by an ICO who requested assistance with
interpretation for an interview and she went on to perform the
same service for other ICOs prior to receiving her own
appointment to that position. Dhillon was born in Malaysia and
moved to Canada - at age 14 - with her family. Both her parents
were born and raised in India so Punjabi was the language spoken
in their home. However, when her parents were away, she and her
siblings conversed mostly in English but also spoke some Fukien
as well as Bahasa Malaysia, the official language. She
completed Grade 7 in English and after coming to Canada, Punjabi
remained the language of their household. In addition, she speaks
Punjabi at weddings, other social functions and at Temple.
Dhillon stated some English words such as "subway" cannot be
interpreted into Punjab since there is no equivalent technology
there. She spent 6 weeks in India in 1994 and has visited there 5
times since coming to Canada, most recently in March, 2004. She
stated that people in Punjab are able to understand her when she
speaks Punjabi but are somewhat amused because they detect a
Malaysian accent. In the course of her work as an ICO, she refers
people to a calendar to assist them in fixing a date significant
to their claim and in her experience has noted that her clients
either understand the months of the English calendar or use a
numerical reference such as the " third month" or the " tenth
month". Dhillon stated that when interpreting during an
interview, she interprets the question - as asked - as well as
the answer, as given. If the person does not understand, she
informs the ICO and it is then within the discretion of that ICO
to repeat that question in a different form or to pose different
questions. She does not keep any notes of an interview and merely
serves as interpreter. Dhillon stated she had no specific
recollection of interpreting the interview with Gurmail Singh
Gill nor the one with Didar Singh Mehat. She recalled the
interview of Harbans Kaur Purewal conducted by Jeannie Suric and
was referred to the notes - Exhibit R-27, tab 90 - taken by
Suric. Dhillon remembered that Purewal attended the interview
with her daughter - Parminder Sihota - who prepared
the Statutory Declaration - tab 91 - in English, then explained
it - in Punjbai - to Harbans Kaur Purewal before she signed it
before Suric who administered the affirmation. Dhillon stated
that at the Richmond office, the ICOs requested her to read the
Report to Claimant to the interviewee in English and Punjabi and
to note any clarifications and/or additions. With respect to the
interview of Harbans Kaur Purewal, Dhillon stated the Report of
Interview - tab 90 - was read by Parminder
Kaur Sihota who interpreted the contents to her mother in Punjabi
and then advised Suric her mother was satisfied it was accurate.
Once the Statutory Declaration was completed, a copy was provided
to the appellant in accordance with usual HRDC practice. Counsel
informed Dhillon that Harbans Kaur Purewal testified she had been
advised in a threatening manner - during the interview
- that various dire consequences would befall her if she did not
give certain answers. Dhillon stated she would have recalled such
an event if it had occurred.
[221] The witness - Charan Sader Dhillon - was
cross-examined by Darshen Narang. Regarding the Statutory
Declaration - tab 91 - Dhillon stated that Parminder Kaur Sihota
interpreted the interview notes to her mother and then Dhillon
explained - in Punjabi - to Sihota and her mother, the nature and
effect of a Statutory Declaration and its significance. Then, in
accordance with usual HRDC practice, Harbans Kaur Purewal was
asked if she wished to provide such a declaration. Had she
refused, that would have been the end of it but she indicated she
wished to do so and her daughter prepared it for and then
interpreted the contents to her before it was signed. Dhillon
stated the interview commenced with the introduction of Jeannie
Suric, then herself, and identification was produced to confirm
identities of Purewal and her daughter. Purewal's application for
UI benefits was presented to her and explained. The rights
and obligations of Purewal - as a claimant - were interpreted by
Dhillon who explained that she proceeded with her interpretation
one sentence at a time and did not proceed until she obtained an
acknowledgement that Purewal understood the earlier statement.
Dhillon stated Purewal was also advised that she was obligated to
answer questions truthfully and that penalties could be imposed
in the event she knowingly provided false information to Suric in
her capacity as ICO. Dhillon referred to the document entitled
NOTE contained in Exhibit R-11, tab 99 and stated the content was
disclosed to a person prior to commencing the actual interview.
Consequences of a conviction following prosecution for knowingly
providing false or misleading statements are explained, including
the potential imposition of a fine or a sentence of imprisonment
but no one is ever threatened with deportation from Canada. She
conceded it is somewhat difficult to translate certain terms into
Punjabi such as "prosecution" but explains it by using other
terms. Dhillon recalled that Purewal consulted with her daughter
on several occasions during the delivery of this warning. Dhillon
stated HRDC policy is not to use any device to record an
interview but would not object if a person wished to do so. In
some instances, an individual will produce a piece of paper with
information thereon and Dhillon will read it aloud and ask for
confirmation that what she has spoken is correct. She confirmed
she has not encountered anyone who did not know months of the
year according to the standard calendar used in Canada but during
her career has observed that people tend to use a significant
event as a point of reference, perhaps a trip to India, or
Vaisakhi, the Sihk festival, as a means of fixing a start or end
date to their employment. She agreed some Punjabi-speaking
workers without formal education find it difficult to comprehend
large numbers. Dhillon stated she interprets an answer as given
even if it is not responsive. In such case, the question is
interpreted again but if the same answer is received then it is
included - in that form - into the notes of the interviewing ICO.
By way of example, Dhillon referred to Exhibit R-27, tab 88 -
notes of an interview - by Suric - with Harbans Kaur Purewal on
February 13, 1998. At the bottom of p. 3, the question was, "who
else was in the van with you?" but Purewal responded "There was a
yellow bus but I never went in it".
[222] Counsel for the respondent did not re-examine the
witness.
[223] Julie Dong was called to the stand and examined by
Johanna Russell. She testified she is the Manager of the Driver
Services Centre for ICBC and works out of an office in Vancouver.
She stated a Class 5 licence permits a person to drive any 2-axle
vehicle - except a bus, taxi or motorcycle - and is regarded
generally as an ordinary licence. In order to qualify, it is
necessary to pass an examination as well as a road test. In 1997,
the Motor Vehicle Branch (MVB) within a ministry of the
provincial government still issued driver's licences but that
function was assumed subsequently by ICBC. Dong stated that - in
1992 - a person could take the written knowledge examination in
Punjabi and before that was permitted to take that test by
utilizing the services of an approved translator. The driving
test is conducted in English but requires comprehension of only a
few words or phrases. Dong stated a Class 4 licence is divided
into two groups; one is unrestricted and permits the holder to
operate any motor vehicle, including a taxi, limousine, or bus,
provided it has a maximum capacity of 25 people and the other one
is unrestricted and allows the person to operate a motor vehicle
such as taxi, limousine or special vehicle with up to 10 seats.
Dong stated that private driving training businesses
- prior to December 1, 1999 - could certify that an
individual had qualified as a Class 4 driver - in the
unrestricted category - and MVB would issue a licence based on
that information. Dong stated the study material for a Class 4
licence is available only in English and that the written
examination is also in English during which the person is not
permitted to receive any assistance from an
interpreter/translator.
[224] The witness - Julie Dong - was cross-examined by
Darshen Narang. She agreed that prior to 1997, there were not as
many steps involved in obtaining an unrestricted Class 4 licence
- such as a screening for Criminal Code of Canada convictions -
but there was still the requirement of a knowledge test, a vision
test, pre-trip inspection and a road test.
[225] Audrey J. Bartsch was called to the stand and
examined by Johanna Russell. Bartsch testified she is the
Assistant-Manager, Personal Finance Services, at the Royal Bank
branch at 6505 Fraser Street, Vancouver. Bartsch was referred to
the Respondent's Book of Miscellaneous Documents - Exhibit R-8 -
and to tab 5, containing a copy of Royal bank records pertaining
to the account of the appellant, Sharinder Singh Bagri. Bartsch
explained that Bagri had a bank-book account and it had to be
re-created line-by-line from the microfiche and - therefore - it
has the appearance of a "cut and paste" document. The statement
was prepared on a monthly basis and each page shows the account
number, the name of the account holder - Bagri - together with
relevant codes in relation to types of transactions, dates and
balances in the account at a particular date. She was referred to
the document - Exhibit R-54 - and agreed it set out various
transaction codes used by the Royal bank. Referring to p. 1 of
the bank statement within tab 5, she noted the transaction code
"51" was used in relation to a transaction on January 5, 1996
indicating the balance in the account was $379.70. A code 41
and/or 51 indicates a credit and/or deposit but on the
reproduction created by the Royal bank, Barstch advised there was
a batching of deposits and that a deposit could be composed of
multiple items. However, even though each daily transaction would
appear on the statement, it would not record a transaction where
the account holder attended at the Royal to cash a cheque -
payable to him or her - and merely took the money and left. She
added it would require an actual deposit to the account for that
transaction to appear on a subsequent statement. Bartsch was
referred to Exhibit R-10, pertaining to the appellant
Sharinder Singh Bagri and to tab 91, containing a copy of an SRC
cheque - dated Se (September) 7, 1996 - payable to Bagri in the
sum of $2,000. She noted Bagri endorsed the cheque and there is a
teller stamp indicating the transaction occurred on October 7,
1996 at the Fraser and 49th Avenue branch of the Royal bank.
Bagri's account number is written on the reverse of said cheque
and the cheque was sent to the clearing centre which - in the
normal course of business - forwarded it to the TD bank at 6544
Fraser Street and 49th Avenue for payment by debiting the SRC
account on which the cheque had been drawn. Bartsch stated this
transaction would not appear on Bagri's bank statement because it
had not been deposited to either of his accounts at the Royal.
She explained the notation of Bagri's account number on the
reverse of the cheque merely indicated he was a customer of Royal
and had the privilege of being able to just cash a cheque and
take the money without being required to deposit it into his
account and await confirmation it had cleared the issuing bank.
Bartsch stated her bank probably would have telephoned the TD
bank in order to ensure there was sufficient money in the SRC
account to clear Bagri's cheque. She added that - in 1996 -
tellers did not note - on the reverse of a cheque - the
denominations of bills handed to the customer but there was a
separate transaction record on which that information was
recorded.
[226] Darshen Narang did not cross-examine the
witness.
[227] Gary Yee was called to the stand and examined by
Johanna Russell. Yee testified he is Assistant-Manager of Banking
Services at Coast Capital Savings and Credit Union (Coast
Capital) and had worked at Richmond Savings and Credit Union
(Richmond Savings) until it merged with Coast Capital and
harmonized its banking procedures. Yee was referred to the bank
statement - Exhibit R-25, tab 92 - pertaining to the
account of Didar Singh Mehat at Richmond Savings for the
period May 31 to December 31, 1996. Yee stated the Account
Balance Sheet is a statement of all assets and liabilities of
Mehat at Richmond Savings under that specific account number. Yee
stated that according to banking procedures at Richmond Savings,
if Mehat had cashed a cheque and received money without
depositing any portion of those proceeds to his account, there
would be no record of that transaction. Yee was referred to a
photocopy of a cheque - Exhibit R-39, tab 15 - in the sum of
$3,000, payable to Surjit Kaur Mehat. The signature
"S.K Mehat" appears on the reverse of the cheque as well as
the imprint of the teller stamp of Richmond Savings - bearing the
date October 21, 1996 - and the number of the Mehat account. With
respect to the cheque - tab 16 - in the sum of $3,000, also
payable to Surjit Kaur Mehat, Yee stated it had been endorsed by
the payee and cased on October 21, 1996. The teller affixed the
stamp and noted the number of the statement - tab 5 - pertaining
to the Mehat joint account which does not include any deposits of
those cheque amounts during that period. Yee referred to the
$1,000 cheque - tab 14 - also payable to Surjit Kaur Mehat and
stated the stamp showed the cheque was cashed on September 10,
1996 at Richmond Savings - Cambie Branch - and then forwarded to
a clearing house which sent it to the TD bank at 49th Avenue
and Fraser Street for payment through the SRC account. Yee
confirmed the photocopy provided did not contain the signature -
of the payee - as an endorsement but attributed that absence to
the poor quality of the copy. Further, he noted the stamp
"Deposit to the Credit of ..." is used - generally - only if all
or part of the negotiated cheque is being deposited to an account
in Richmond Savings. Yee stated that if no signature by Surjit
Kaur Mehat was obtained prior to handing her the cash, that would
have been an error in banking procedure. He agreed the lack of
endorsement and the deposit stamp were two indicia
consistent with a deposit transaction.
[228] The witness - Gary Yee - was cross-examined by
Darshen Narang. Yee confirmed the sum of $2,948.33 was the
highest balance in the Mehat joint account during the period
covered by the statement. He agreed that a signature is not
required when a cheque is deposited to an account and stated
there is no requirement that the cheque be held until it clears
the issuing bank since it is within the discretion of the teller
to negotiate the cheque. Usually, if cheques from the same payer
had been negotiated successfully in the past, most tellers will
continue to accept them and hand over cash in exchange for an
endorsement by the customer. In his experience, if a deposit
stamp had been affixed in error, it would have been crossed out.
Denominations of bills were not recorded on the reverse of the
cheque since there is a machine that records them. Yee noted the
same teller stamp - #4 - was used on both cheques - tab 15 and
tab 16 - and the SRC cheques bore numbers 0031 and 0032. Since
both cheques were cashed the same day - October 21,
1996 - one could conclude that Surjit Kaur Mehat received the
total sum of $6,000 in cash from the same teller.
[229] Guprem Monga was called to the stand and examined
by Johanna Russell. Monga required the assistance of Russell Gill
who interpreted the questions into Punjabi and the answers into
English. Monga stated he is the owner of G. Monga Farms which is
owned jointly with his wife, Paramjit Monga. In 1996, they lived
in town and farmed 12 acres of raspberries at 0 Avenue and bought
a 10-acre blueberry farm on Hallert Road before the beginning of
the blueberry season. Monga identified a copy of a fax - Exhibit
R-3, tab 79 p. 102 - that he sent to Janet Mah together with an
invoice - p. 101 - showing the payment - by his farm business -
of the total sum of $17,633.60 to SRC. The breakdown was as
follows: $13,632 for raspberries calculated at 40 cents per pound
for 34,080 pounds; $1,888 for blueberries at 40 cents per pound
for 4,720 pounds; 120 hours labour at $8 per hour for $960. GST
in the sum of $1,153.60 was added. Monga stated he hired a labour
contractor - SRC - to provide workers in May, 1996 to perform
various tasks such as hoeing, cutting back new growth and
thinning but also hired workers - personally - to work on the
farm. Between May and August, SRC provided a total of 120 hours
labour to his farm. Monga stated the usual work day was 8 hours
but during berry season could extend to 10 hours. When SRC
supplied workers, Monga did not mark their names down but merely
made a notation - on a calendar - such as "3 workers (SRC) at 8
hours each = 24 hours". As listed on the invoice - tab 79, p. 101
- he has copies of the 4 cancelled cheques issued to SRC.
[230] (Counsel for the respondent pointed out that when
Fontaine prepared his summary of cheque deposits to the SRC
account - Exhibit R-1, tab 28, p. 3 - he missed the G. F. Monga
cheque in the sum of $4,633.60 - within tab 24 - issued on
October 26, 1996 with the result his total was $13,000 instead of
$17,633.60.)
[231] Monga identified photocopies of the front and back
of 4 cheques - Exhibit R 55 - as those he
had issued to SRC. In 1996, he had hired only SRC to provide
labourers and its workers used picking cards when working on the
Monga Farms. Monga presented a box - Exhibit R-56 - containing
numerous bundles of picking cards in different colours which he
stated had no significance except that different contractors used
different coloured cards. Monga stated he supplied the picking
cards - in triplicate form - to SRC and each morning handed over
a stack of cards to be distributed among the workers. Monga's
brother - Balwinder Monga - worked as a
Supervisor for Monga Farms because Guprem Monga had a
full-time job at a mill and could only attend at the farm
property after finishing a shift or before reporting for work.
Guprem Monga stated that a new card was handed out - usually -
each day but - sometimes - a worker forgot to turn in a card at
the end of the previous day and - as a result - used the same one
during the next day. At the end of the day, Monga - or his
brother - would tear off a copy of the picking card and retain it
or otherwise ensured that Monga Farms received copies of picking
cards that had been kept at the scale when workers lined up to
empty their containers during the day. Monga stated the procedure
followed can vary but the main point is that he had to separate
and retain his copy of each picking card - identified
with the word "Grower" - from the others labeled "Contractor" and
"Picker". In 1996, Monga stated he used peach-coloured cards for
raspberries and paid SRC by the flat for each one picked. The
flats contained 12 small boxes - as inserts - which cannot be
removed. Orange-coloured cards were used to record the amount of
blueberries picked and Monga paid SRC by the pound for the
berries which were placed into either a 12-pound plastic flat
- for the fresh market - or a 16-pound flat for
produce destined for the cannery. In the event a picker turned in
a flat that held only 8 pounds, then the
numbers 5 + 2 + 1 would be punched on that
worker's card to account for the total of 8. If a flat of
raspberries was not full, the actual weight was noted on the back
of the picking card and/or each full small basket - inside
the flat - could be recorded - by punching the card - and
counting it as containing 1.5 pounds of berries.
Monga stated he is
aware of large farms where 3 or 4 scales were used to weigh
berries but on his farm he used only one scale for each type
of berry picked and sometimes moved the scale - by truck - to
different locations. In the event a truck was not available,
flats were stored on the ground. Pickers used either a 5-pound or
10-pound pail to pick blueberries and when the container was
full, it was emptied into a pail/bucket capable of holding
20 pounds of berries. Because blueberries are not as fragile
as raspberries, they can be scaled later in the day rather than
as soon as they are picked. The known weight of any berry
container is subtracted from the reading of total weight obtained
at the scale. Monga stated his farm shipped berries to the fresh
market by the flat or in small boxes but bins were used to ship
to the cannery. He stated he paid SRC by the pound for production
and did not concern himself with breaks or rest periods for
workers which would have been an issue if he had been paying
workers by the hour. When compensating workers at an hourly rate,
Monga stated he directs the 15-minute rest periods which are
scheduled every 4 hours in addition to a lunch break and an
additional break in the afternoon. Monga estimated that a good
picker - during the busy part of the raspberry season - could
pick 360 pounds a day. Generally, picking at the height of the
season and during good weather began at 7:00 a.m. and finished at
6:30 or 7:00 p.m. but picking times varied according to the
weather since raspberries can be picked in the rain but not
blueberries as the packing plants will not accept them if picked
wet. In the event it rained at his farm, the workers might be
transported elsewhere. Monga stated there were pickers on his
farm 7 days per week during some portions of the berry season.
Berries sold to the fresh market are picked every day but during
the busy season SRC provided between 20 and 30 workers per day,
transporting them in 3 vans. Sometimes, only two vans were needed
depending on the progress of the harvest since the raspberries
were finished - usually - by the middle of August. Monga stated
blueberry season began at the end of July - during the latter
part of raspberry season - and members of his own family
personally gave directions to workers or transmitted instructions
to a representative of the labour contractor who spoke with the
workers. Monga stated a worker who is picking blueberries for the
fresh market will pick less berries per day than another person -
picking berries for shipment to the cannery - who can pick up to
400 pounds of berries per day. There are 4 pickings per
season and in his experience, Monga did not observe much
difference in volume between the different picking periods except
the first crop of raspberries tends to be less so that even a
good picker will harvest only 10-15 flats - 12 pounds each -
compared to as many as 30 flats later in the season. In 1995,
Monga obtained farm labour from Bant Suran and - in 1996 - did
not recall having any contact with Manjit Rana in connection with
the workers supplied by SRC. Monga stated he issued cheques of
$4,000, $3,000 and $6,000 earlier in the season which he handed -
personally - to Bant so he could pay the pickers. Monga issued
the final cheque in the sum of $4,633.40 after calculating the
final amount owed to SRC according to his own records and the
information obtained from his copies of the picking cards. Monga
prepared the invoice - Exhibit R-3, tab 79, p. 101 - from those
records and issued the cheque to pay the final amount due to SRC.
Monga stated Bant came to the farm many times during the season
and he discussed different matters with him concerning the supply
of labour. He observed several yellow school buses carrying
pickers to destinations in his area - including berry farms
operated by his neighbours - but not necessarily to his own
property.
[232] The witness - Guprem Monga - was cross-examined by
Darshen Narang. Monga stated he sold the 10-acre blueberry farm
following the end of the 1997 season but - in 1996 - had operated
it together with the 12-acre raspberry farm. The blueberry farm
had mainly mature Bluecrop plants, capable of producing between
40,000 and 50,000 pounds of berries and between 80,000 pounds and
90,000 pounds of berries were harvested on the raspberry farm. In
1996, Monga Farms had 4 or 5 employees but retained only SRC
as a labour contractor. Its own employees were paid by the hour.
He stated there was lots of work to be done during April on the
blueberry farm. Monga stated he never saw any licence or even a
business card pertaining to the SRC business and was able to
prepare an invoice, as though it had been issued by SRC to G.
Monga Farms - Exhibit R-3, tab 79, p. 101 - in which he set out
the address of Bant's Vancouver residence as the business address
of SRC. Monga recalled he had visited Bant's house on one
occasion for some reason or other and wrote down the address and
- at some point - Bant had provided the SRC GST number to
Balwinder Monga. A sheet - Exhibit R-57 - dated
September 30, 1996 - was prepared by Balwinder Monga on which
dates and hours worked by various workers were listed so that the
total amount of $16,480 for supply of labour plus GST - in the
sum of $1,153.60 - exactly matched the total amount paid by Monga
Farms to SRC during 1996. Monga stated he was advised by Bant
that SRC wanted to pay workers by the hour and in order to
satisfy that request, instructed his brother - Balwinder - to
prepare the sheet - Exhibit 57 - in accordance with Bant's
instructions. Monga stated he was not present when that sheet was
prepared but noted it had columns headed "Date", "Total People",
"Total Hours Per People", "Total Hours" followed by one entitled
"Total Amount". Guprem Monga stated Bant supplied him with
workers - in 1995 - under the name B & L Farm Contractors and
- in 1996 - he assumed Bant was operating the same company.
However, prior to issuing the first cheque - on August 10,
1996 - to pay for labour, he was instructed by Bant to make it
payable to SRC because Bant had changed the name of his business
since 1995. Monga identified photographs of both Bant and Shindo
from those found in Exhibit R-20, tab 97, at p. 1. When shown the
photograph of Rana in Exhibit R-31, tab 95, Monga
stated, although he was not certain, that - probably - he had
never seen Rana before. The name "M.S. Rana" appeared at the
bottom of the sheet - Exhibit R-57 - but Monga
did not inquire about that prior to sending a copy of that
document to Janet Mah. He stated his own workers were paid by the
hour regardless of duties performed. He agreed to prepare a sheet
for Bant that converted the amount paid to SRC - based on flats
or pounds - to an hourly rate for workers. Monga paid his own
workers $8 per hour and stated they picked most of the blueberry
crop in 1996 since SRC was paid only for picking 4,720 pounds.
Monga stated that if he needed farm labourers, he telephoned Bant
- at night - to inform him of the number of workers needed the
following day. Although the fresh market berries are worth 10-15%
more than berries used for processing, Monga stated it was
difficult to find people to pick them because they could not earn
enough income on the basis of earning revenue on a piecework - by
the pound - basis. The fresh market berries were delivered either
by himself, his wife or his brother. Monga stated family members
were paid a salary only at the end of the season but non-related
workers were given advances from time to time - as requested -
and paid a final cheque according to the calculations undertaken
at the end of the season. Because his business was part of a
cooperative, Monga was paid for product sold through this entity
only after sales had been made, but private companies purchasing
berries paid him sooner. As a result of the delay in obtaining
payment for produce, Monga injected his own funds into the
business from time to time. He explained the entire system is
based on trust in that pickers trust that growers will pay them
in full at the end of the season and - in turn - growers have
faith in the entities purchasing their products. Monga stated SRC
probably provided between 5 and 10 pickers for the blueberries
which may have been picked during the first week in September -
depending on the variety - but none of the Monga Farms
blueberry crop was picked as late as October. In 1996, Monga
shipped berries to two or three processors and during the season
a good picker was able to pick a minimum of 50-100 pounds per day
and up to 300 or 400 pounds when picking the best part of the
crop. If only 5 pickers were used, they could pick every day and
Monga estimated it had taken a maximum of 5 days to pick his
blueberry crop in 1996. Based on total production of 1,000 pounds
per day for 4.7 days in order to equal the total amount -
4,720 pounds - picked by SRC workers, Monga stated it would have
required either 5 workers picking an average of 200 pounds each
per day or as many as 10 workers picking for only 3 days. Monga
agreed SRC was providing labour to his farm as late as September
11, 1996 but pointed out the workers may have been at his farm
for only an hour or so before being taken away to work for
another farmer. When raspberries are picked, Monga stated they
are put into either a 12-pound flat - sold to the fresh market -
or a 16-pound flat which is shipped to the processing plant.
Regardless of the destination of the berries, Monga paid his
workers on the basis of 15 pounds per flat on the supposition
that it averaged out over the course of the day. He stated his
practice was to write down a worker's name on the picking card
when that person brought berries to the scale for weighing. If a
worker did not have a card, one was available at the scale. Monga
stated he and his family did not verify the identity of any
worker because the same pickers did not show up each day. His
business practice did not require anyone to count the number of
picking cards handed out each morning and it was assumed all the
cards would be turned in each night. Monga agreed the first entry
on the sheet - Exhibit R-57 - shows SRC provided labourers on
July 15, 1996 but cautioned that a review of the picking cards
- Exhibit R-56 - might reveal some work had been done
earlier. When preparing the invoice - from SRC to G Monga Farms -
he checked over the picking cards but merely inserted the dates
of May 31 to August 1, 1996 as "rough dates" sufficient for the
purpose.
[233] Counsel for the respondent did not re-examine the
witness.
[234] Kal Tarlal was called to the stand and examined by
Johanna Russell. Tarlal testified she is employed - as an ICO -
by HRDC where she has been employed since 1992. After working 6
years in Vancouver in various capacities - as an Insurance
Officer and ICO - she became a member of the Agricultural
Compliance Team (ACT) and remained there during 2000 and 2001.
Tarlal speaks Punjabi and, even while functioning in a clerical
role, began interpreting within her office, as requested. As a
member of ACT, she spoke Punjabi to farm workers during visits to
the fields and - in 1998 - participated in group information
sessions designed to assist Punjabi-speaking workers, many of
whom were farm workers. During these seminars, Tarlal stated she
did not encounter any difficulty communicating with her Punjabi
audience but recalled that - on occasion - she was teased about
her choice of words and then provided with the correct one within
the intended context. Although born in England, Tarlal came with
her parents to Canada when she was a baby. Her mother cannot
speak English and her father - also born in India - communicated
with the immediate family and other relatives in the Punjabi
language. When she was in her early teens, Tarlal took a course
in order to learn how to read and write Punjabi and although some
of those reading skills have diminished, Tarlal estimates she
could understand 70% of the material contained in a typical
Punjabi language newspaper. She had visited India twice and had
not encountered significant problems when speaking with people
from different regions in Punjab. When interpreting for an ICO
during an interview with a Punjabi-speaking individual,
Tarlal stated if the subject matter was in relation to certain
months of the year, she always received responses in which the
speaker identified a month by the English name or by a numerical
reference, such as "the 7th month". On occasion, if it seemed
necessary to clarify a response, Tarlal stated she would advise
the interviewing ICO accordingly.
[235] Tarlal was referred to Exhibit R-9, tab 91,
containing the notes of Fontaine concerning his interview with
the appellant, Inderjit Singh Atwal and agreed she had provided
interpretation but has no specific recollection of that event nor
of interpreting the warning contained in the document at tab 92.
She did not recall interpreting during the interview with Atwal
on February 17, 1998, although the notes - tab 93 - made by
Fontaine indicate she was present.
[236] Tarlal was referred to Exhibit R-11, and to the
notes - tabs 102 and 103 - made by Fontaine during two interviews
with the appellant, Jaswinder Singh Bassi on December 5, 1997 and
December 9, 1997, respectively. Tarlal stated she could not
remember having interpreted for these interviews.
[237] Tarlal was referred to Exhibit R-29 and to the
notes - tab 91 - of the interview conducted by Fontaine with the
appellant Bakhshisk Kaur Thandi. Tarlal stated even though
Thandi's daughter entered the interview room later and assumed
the role of interpreter in order to assist her mother that she
would have remained throughout the interview in order to ensure
the accuracy of the interpretation.
[238] Tarlal stated she had no recollection that she
interpreted during the interviews - by Fontaine - of the
appellant Gian Singh Thandi on February 16, 1998 and February 18,
1998. She was referred to Fontaine's notes - Exhibit R-29, tabs
91 and 92 - and identified a memo - tab 95 - she wrote concerning
a visit to the HRDC office by Maninder, daughter of Bakhshish
Kaur Thandi and Gian Singh Thandi.
[239] Tarlal recalled making notes - Exhibit R-19, tab
95 - of a conversation with the appellant Varinder Kaur
Jassal on April 24, 1998 during which Jassal advised Tarlal that
she had worked full time for SRC, although the hours varied from
day to day. She remembered interpreting the interview with Rana
but does not recall the relevant questions asked and/or any
answers given by Rana. Tarlal stated she had no recollection of
the interview - by Fontaine - of the SRC driver
Balwinder (Binder) Chahal.
[240] The witness - Kal Tarlal - was cross-examined by
Darshen Narang. She stated she visited India - at age 18 - and
remained for 3 weeks. Two years later - in 1990 - she
returned to India for 4 weeks during which she visited the large
city of Chandigar as well as some villages in Punjab. Her father
could speak English and Punjabi. Tarlal stated she was accustomed
to receiving advance notice when her services would be required
during an interview scheduled by an ICO but sometimes - as in the
case of Rana - she was called upon - without warning - to
interpret for someone who attended the HRDC office without an
appointment and wished to speak about some particular subject.
Tarlal described the usual procedure which was for the ICO to
introduce himself or herself and that formality would be
interpreted into Punjabi. Even if an interviewee attended with a
Punjabi-speaking friend or relative to interpret on his or her
behalf, an HRDC employee capable of speaking and understanding
Punjabi remained in the room. Tarla stated that in her
experience, the questions and answers were reviewed at the end of
the interview and the interviewee had the right to advise Tarlal
of any additions, revisions, deletions or corrections which she
would interpret to the ICO. At the conclusion of an interview,
most claimants were asked to sign on the last page of the notes.
When interpreting the standard warning to someone, Tarlal stated
she did not use only one word to convey the concepts inherent in
the single English words such as "verification", "omission",
"prosecution" or "misleading". In order to satisfy herself that
interviewees understood the import of the warning, she asked them
to state what they understood based on what she had told them. As
to other significant aspects of an interview, Tarlal referred -
as an example - to Exhibit R-11, tab 91 - the application for UI
benefits submitted by Jaswinder Singh Bassi - and stated her
practice was to explain the nature of that document and to point
to a signature and inquire if the person was prepared to
acknowledge it was their own. Tarlal stated some people answer
quickly so the interview will proceed at a rapid pace. She stated
she would not recall - 6 years later - whether someone had been
asked if they had been drinking or under the influence of some
other substance when attending an interview but added it was
extremely rare that an individual would show up - obviously
impaired - at an HRDC office. Tarlal stated she would use the
English word "April" when speaking in Punjabi and if she
perceived a lack of understanding would repeat the phrase in
question but substitute "the 4th month" for April. Tarlal
conceded she could not use higher numbers in Punjabi and uses
other methods to explain those figures.
[241] The witness - Kamwal Gill - was called to the
stand and exmained by Johanna Russell. She testified she is a
bookkeeper and was employed by M & G Bros. Farms Ltd. Gill
Farms - in 1996. The business is owned by
Mohinder Singh Gill and Gurdev Singh Gill, Kamwal
Gill's father-in-law. Kamwal Gill is not a director or
officer of the corporation. Her duties - in 1996 - included
making ledger entries, payroll, supervising farm operations,
including handing out picking cards, distributing flats, weighing
berries and issuing instructions to a foreman/employee of Gill
Farms who communicated the details to a representative of the
labour contractor. In 1996, Gill Farms had 23 employees on the
payroll during the season and many of them carried out tasks such
as picking and weeding in addition to other duties. The
corporation farmed a 35-acre parcel it owned together with an
85-acre adjacent property that it leased to create a total
acreage of 120 which was devoted to the production of
raspberries. The company also leased an 80-acre parcel in Langley
of which 25 acres was composed of blueberry plants at various
stages of maturity. Gill Farms also owned an 18-acre raspberry
farm in Abbotsford and leased another 35 acres on Huntingdon Road
where the crop consisted mainly of raspberries. Gill stated her
duties included issuing payments to labour contractors. In 1996,
she prepared 3 cheques payable to SRC - Exhibit R-2, tab 41, p. 6
- as follows: July 14, 1999 - $4,000; August 3, 1996 - $4,000;
October 14, 1996 - the final cheque - in the sum of $32,895. Gill
stated Gill Farms dealt with SRC in accordance with the terms of
the Farm Contractor Licence - Exhibit R- 2, tab 41, p.
8 - issued on July 22, 1996. She had no dealings with Manjit
Rana. She identified the sheet - same tab, p. 9 - on which she
wrote details of blueberries and raspberries picked by SRC
workers. She calculated the amount owing based on $5.35 per pail
for blueberries, $4.35 per flat for raspberries and then added a
bonus of $500. There was no hourly rate paid in respect of any
worker supplied by SRC. The total payment by Gill Farms - to SRC
- was $40,395.06 in 1996. Kamwal Gill mailed a complete set of
picking cards for the 1996 season to Janet Mah and they were
returned later. Prior to sending them to Mah, she separated them
into blueberry and raspberry cards and Mah inserted pieces of
yellow paper - at various places - for her own purposes
prior to returning them. Kamwal Gill stated the picking card - in
triplicate - that was used for blueberries had the address of the
Gill corporation at the top and the three copies of a card were
for the benefit of the farmer, the contractor and the picker,
respectively. The name of the picker was written at the top of
the card. If it was the first time a worker brought a container
to the scale for weighing, Gill stated she asked for his or her
name and wrote it on the card. Other times, workers lined up on
their own accord and provided her with their names, one by one. A
new card was provided each day and was distributed - usually - to
the workers by Mohinder Singh Gill. The picker retained the
same card throughout the day and at quitting time handed it to
the contractor who turned over the Farmer's copy to a
representative of Gill Farms. Cards for blueberries were
separated horizontally and vertically for raspberries. Kamwal
Gill stated blueberries were packed into larger pails or flats -
each containing 20 pounds of berries - so the form of container
was not particularly significant since each picking card recorded
only the net weight of berries brought to the scale regardless of
the nature of the container, whether a large, plastic pail or a
flat with a 12-compartment insert. In the event a pail or a flat
was not full, then the card was punched to record either 1/4, 1/2
or 3/4 to reflect the most accurate assessment of the partial
contents. Raspberry flats also had 12 interior compartments
and the flat held 16 pounds of berries when full. If a flat was
handed in that contained either less or more than that weight,
the difference was noted with either a plus or a minus sign on
the card itself or on some other cards, the fraction best
representing the amount of the variation would be punched. Gill
stated that during the busy season she received berries - at the
scale - continuously throughout the day but if not as many
pickers were working during slower periods, only one scale was
used and she would weigh berries at 10:00 a.m. and again at noon
and every two hours thereafter until quitting time. When only one
scale was in operation, it was mounted on a truck and moved from
place to place. Berries were dumped into totes or large bins
until they could be hauled to the processing plant. Gill
estimated SRC supplied as many as 40 workers during the busy part
of the picking season in order to supplement the labour force of
20 to 30 workers employed by Gill Farms. The blueberries
were all picked by hand. At the end of the season, by referring
to picking cards, Gill calculated the total amount earned by SRC
- based on a certain amount per pound of berries picked by its
workers - deducted the sum of $8,000 paid in the form of two
advances, added GST, and arrived at an amount which was the
subject of a final cheque issued to SRC. Gill stated seasonal
employees of Gill Farms were also paid on a piecework basis but
year-round employees were paid a salary. Gill recalled a
telephone conversation with Janet Mah and was referred to Mah's
notes - Exhibit R-3, tab 79, p. 118 - indicating Gill had
advised her that an average worker would pick approximately 15
flats of raspberries a day, depending on the crop, and between
14 and 17 - 20-pounds - pails of blueberries per day. Gill
agreed she had provided those numbers to Mah and added that one
worker had picked 26 pails of blueberries in one day and some
workers could pick up to 30 flats of raspberries per day in the
course of an unofficial spirit of competition between competent
pickers. During the season, pickers arrived at the farm between
8:00 and 8:30 in the morning and worked until 6:30 p.m. if it was
a nice, sunny day. If it rained hard, picking had to be halted -
sometimes - but if the blueberries being harvested were going to
be sold in the fresh market, picking continued and the berries
were dumped into large totes (bins) which were covered with
plastic. Gill stated pickers work 7 days per week during a season
in which different berries ripen at various times. Raspberries
may be ready as early as June 15th but even if the harvesting
begins later, it is sometimes necessary for Gill Farms to hire
labourers through a contractor. She could not recall the types of
vehicles used to transport workers to the properties operated by
Gill Farms since they were parked far away or merely dropped off
some workers and continued to another destination.
[242] The witness - Kamwal Gill - was cross-examined by
Darshen Narang. She stated she has been employed by Gill Farms
since 1984 but works in the fields only during berry season. She
took accounting courses at Fraser Valley College in order to
handle the payroll requirements of the corporation. In 1996,
employees of Gill Farms were paid bi-weekly in accordance
with provincial employment standards and were paid an hourly rate
except for pruning which was remunerated by the row. Gill stated
that when picking berries, Gill Farms employees, although still
paid by the pound, receive a different rate than the one used to
pay labour contractors for berries picked by their own employees.
She added that picking rates will vary from year to year and in
1996, Gill Farms paid SRC $5.35 for each flat of blueberries and
$4.35 for each flat of strawberries. That year, no blueberries
were grown on any of the Gill Farms properties in Abbotsford. She
recalled providing answers to questions posed by Janet Mah during
a telephone conversation and for part of the time, Mohinder Singh
Gill was present in the office and provided some answers. In
1996, Gill Farms had crops on a total of 173 acres. The company
employed 23 of its own pickers who were hired about the same time
as SRC was contacted to provide additional workers for the
harvest. Gill Farms operated 50 trucks at that time and there
were usually one or two in a field because they were required to
haul two or three truckloads of berries from the field each day.
The cannery was about 10 minutes away from the raspberry field.
Gill stated that when a raspberry-picking machine was used, it
operated - usually - in a different field, although it has been
used side by side with human workers. Raspberries are quite
plentiful and fields are picked as circumstances require so that
an average field will be picked 7 or 8 times and - sometimes - as
many as 10. Blueberries are picked only 3 or 4 times. Gill stated
that blueberry picking is more time-consuming and there is an
overlap of about 15 to 20 days with the raspberry season. There
is a different rate for strawberries, raspberries and blueberries
and production can vary from day to day. However, the rate
established by the provincial government for picking blueberries
is $2 or $3 more per flat than for picking raspberries. Narang
pointed out to Gill that according to the invoice she prepared,
SRC was paid 27.18 cents per pound for raspberries and 27.65
cents per pound for blueberries. Gill replied that her
calculations were based on flats rather than pounds. She reviewed
the picking cards and tallied the amounts picked according to
flats. If a picker lost a picking card, no payment would be made
for any berries picked. Kamwal Gill stated Gill Farms also owns a
processing plant but she did not provide any bookkeeping services
to that entity. Gill was referred to Exhibit R-59, an extract
from the British Columbia Gazette - Part 11 setting forth
the minimum wage for farm workers - in 1996 - employed on a piece
work basis pursuant to regulations issued under the Employment
Standards Regulation. The applicable rate at that time was as
follows: raspberries - $.275 per pound; strawberries - $.265 per
pound; blueberries $.305 per pound. Gill agreed her family
company paid its own workers less than the rate billed by SRC but
believes it was in accordance with the applicable government
minimum rates. Gill stated company employees either came to work
using their own transportation or she picked them up and dropped
them off at night in a van. Some workers lived in cabins on the
property. Gill had no recollection of speaking to Fontaine but
had sent him some cancelled cheques and the relevant invoice
referred to earlier.
[243] Mohinder Singh Gill testified in Punjabi and the
questions and answers were translated from English to Punjabi and
Punjabi to English by Russell Gill, interpreter. Mohinder Singh
Gill agreed the information contained in the corporate search -
Ehibit R-3, tab 79, p. 120 - was correct and that - in 1996 - he
was the President - and a Director - of M. & G. Bros. Farms
Ltd. and his brother - Gurdev Singh Gill - was Secretary and also
a Director. They still occupy those positions and the corporate
structure permits their children to hold shares. Gill recalled
the picking machine was used in 1996 for some raspberries and
black currants and was operated by members of his family and
corporate employees. A large 80-acre field next to his family
residence was not used in 1996 but had been in production the
previous year. In 1996, the Gill business farmed 35 acres on the
home property and 8 adjacent acres, a 12-acre parcel on Ross
Road, a 20-acre raspberry farm on Huntingdon Road, 70 acres in
Langley, of which 25-28 acres were planted in blueberries with
the remainder in black currant. The 2 acres of Bluecrop berries
on the Ross Road parcel produced only 1,000 pounds of berries.
Gill stated the raspberry season generally starts between June 15
and July 1 and if blueberries ripen during this period, pickers
are taken - from the raspberry fields - to pick blueberries and
the picking machine takes over harvesting the raspberry crop.
Gill recalled his dealings with Bant the previous year when he
supplied labourers to Gill Farms. In 1996, he was advised -
by Bant - that the name of the business had been changed and the
current Farm Contractor Licence was issued in the name of SRC.
Gill stated Gill Farms has to ensure that a labour contractor is
licensed prior to entering into any business arrangement. In
1996, he was aware Bant was related to Rana but always dealt with
Bant. Gill stated that - in his experience - a labour contractor
will not attend at a field every day but will appear to pick up a
cheque or for some other business reason. Gill was referred to a
photograph (of Rana) - Exhibit R-18, tab 99 - and
stated he could not put a name to that face but had seen that
person going to the fields during the summer of 1996. SRC was the
only labour contractor hired by Gill Farms that year and - in
1997 - Gill waited for Bant to show up but he failed to do so,
and information was received later that SRC had gone broke. Gill
stated SRC used the same van and the same old, yellow bus in 1996
that Bant used in 1995 when he was operating as B & L Farm
Contractors. SRC also operated a white van and a reddish van to
drop off workers at various farms. Gill stated he knew Bant
operated his own blueberry farm in Richmond and that some
producers offered a different rate for picking so a labour
contractor often divided the work force into various groups.
Weather played a part in the harvest since blueberries hauled to
the cannery had to be dry. As for numbers of workers, Gill stated
he was willing to accept 10 extra pickers if their help was
needed to harvest the crop. He explained the system of annual
bargaining - prior to the start of the season - whereby a labour
contractor offers to pick different berries at a particular rate
and the farmer decides whether to accept that rate or to make a
counteroffer which may or may not result in a contract. However,
once the rate is agreed to by both parties, it is not increased
during the season and any bonus paid at the end of the season is
solely within the discretion of the grower as was the case in
1996 when he instructed Kamwal Gill to add a bonus of $500 to the
final amount due to SRC. Regarding the issuance of picking cards
to workers, Gill stated that if the SRC driver could not write,
he instructed Kamwal Gill to record the names of workers when
they presented berries for weighing at the scale. Although the
picking cards handed to SRC workers were in triplicate, the ones
used by Gill Farms own employees were only in two copies,
one for the company and one for the worker and at the end of the
day, the cards would be separated into two piles, one for
Gill Farms workers and the other for those pickers employed by
SRC. At the end of the season, Kamwal Gill tallied the picking
cards - in Mohinder Sign Gill's presence - and calculations were
undertaken to determine the balance owing to SRC. Gill stated he
understood that Bant purchased berries from growers farming small
parcels and shipped the product to Purewal cannery. In order to
pick the berries, Bant transported workers to those small
holdings - in Richmond - and also took workers to that area where
they worked on a vegetable farm.
[244] The witness - Mohinder Singh Gill - was
cross-examined by Darshen Narang. Gill stated he has farmed
since 1970 and began entering into verbal contracts with labour
contractors in 1974 but Gill Farms had reached the point where
the combination of machines and regular employees were sufficient
to handle the harvest. Currently, two machines are used to pick
52 acres of raspberries. Gill stated a yield of 8,000 pounds per
acre is an average harvest and estimated that 225 workers would
be required to pick 75 acres of raspberries. In 1996, SRC workers
picked 3,593 flats of raspberries but less than 50 human pickers
were utilized that year because machines harvested the major
portion of that crop. In 1996, there was no machine capable of
picking blueberries although one has since been developed. Gill
stated his blueberry plants are currently in much better
condition than during 1996 and the farms can produce 5 tons per
acre compared with 3 tons in 1996. In 1996, according to records
compiled by Kamwal Gill, between 50 and 60 tons of
blueberries were harvested of which SRC workers picked 41.
Blueberry production was calculated on the basis of 20 pounds per
flat and SRC workers picked 4,134.5 flats or 82,690 pounds. Gill
stated his family did not attempt to verify the identity of any
worker. He arrived in Canada - in 1969 - at age 29 and
soon came to know 4 other men named
Mohinder Singh Gill. In the past, he once prepared 3
ROEs for 3 different female workers with exactly the same name.
As a result, HRDC investigated the matter but was satisfied the
three workers were real people - with different SIN numbers - who
lived at different addresses. He confirmed SRC had not presented
Gill Farms with its own invoice for services provided. Gill
stated there were never any blueberries on the Huntingdon Road
property. Gill stated many government officials and people from
universities have visited his farming operation over the course
of many years.
[245] Counsel for the respondent did not re-examine.
[246] Peter Kliewer was called to the stand and examined
by Johanna Russell. He stated he lives in Richmond and is a
retired farmer. In 1996, he and his wife - Elizabeth -
operated Kliewer Farms, consisting of one 6-acre parcel on #6
Road. That year, 4 acres of blueberries were in production
including the Bluecrop variety - comprising 65% of total - and
two other types. In 1996, he and his wife entered into a contract
with Bant Suran to provide labour and obtained Bant's address,
telephone number and pager number. Kliewer was referred to a
photocopy of two cheques - Exhibit R-3, tab 79, p. 106 - in
the sums of $12,383.68 and $866.85, respectively, payable to SRC
(This total payment of $13,250.53 matched the one traced by
Fontaine and noted in Exhibit R-1, tab 28, p. 3, line 17).
Kliewer stated SRC was paid according to the weight of
blueberries picked and a record was maintained by using picking
cards in triplicate. At the end of the season, the cards were
reviewed and tallies were made of the total volume picked.
Kliewer produced a package of original picking cards - Exhibit
R-60 - printed to include the name Peter Kliewer and the address
and phone number of the farm together with a tally sheet -
Exhibit R-61 - used to record the total volume picked each day.
The picking cards are stuck together at the edge and Kliewer
explained that a hole is punched at the side of the card so a
picker can use a safety pin or other fastener to affix it to his
or her clothing because the card will be used all that day to
record the amount of berries picked. Kliewer noted the first
picking card was dated August 8, 1996 and the last one was dated
September 17, 1996. Kliewer Farms used plastic pails with a
20-pound capacity as receptacles for blueberries. If a pail was
only partially full, then the actual weight was recorded at the
bottom of the picking card and at the close of each day, the
shortfalls and overages in weight were tallied and accounted for
on the relevant picking card. Kliewer recalled Shindo - Bant's
wife - was often at the scale where picking cards were handed out
each morning - to each picker - when the first pail of berries
was presented for weighing. He added that she seemed to be
present most of the time and dealt with the workers. Pickers were
permitted to take breaks for lunch or otherwise at their own
discretion. Kliewer stated his wife separated copies of the
picking cards and retained the contractor's copies. Sometimes,
two persons - assumed to be husband and wife - used one card.
After the berries were cleaned, they were hauled to Purewal
Blueberry Farms Ltd. (Purewal Farms). Kliewer Farms paid SRC 32
cents for each pound of blueberries picked which was the rate
agreed upon between the Kliewers and Bant at the beginning of the
season. In 1996, the entire crop was picked by SRC workers and
the starting time was flexible since it depended - to some extent
- on the weather. Kliewer recalled the picking was underway -
usually - between 8:00 a.m. and 9:00 a.m. and continued
until 7:00 p.m. if the weather was good. He stated the SRC
workers arrived in a brown van and, although the same crew did
not come to work every day, it made no difference to him so long
as the crop was picked. Kliewer stated he had enjoyed a good
relationship with Bant in previous years and regarded him as an
honest person in the context of their business relationship.
Kliewer stated he and his wife did not like to work on Sunday
because they attended church. However, if it was necessary to
pick that day due to time constraints in terms of completing the
harvest, he and his wife permitted picking to be done but only in
the afternoon following church services. Kliewer stated he never
received any invoice from Bant. Instead, he and his wife tallied
amounts from the picking cards and calculated the amount owing to
SRC. Kliewer recalled speaking with Fontaine and confirmed the
content of Fontaine's notes - Exhibit R-2,
tab 40 - that he hired Bant - in 1997 - to provide approximately
9 pickers to harvest the blueberry crop. Kliewer Farms paid
Bant - through an entity called Loomis Enterprises - the sum of
$5,896.96 plus $412.79 GST for those services. During that
conversation with Fontaine, Kliewer recalled he had been unable
to locate Bant in order to provide pickers during the 1998 season
and - after encountering some difficulty - finally
found another contractor to provide some workers. Kliewer stated
he accepted - as correct - the statement
- Exhibit R-3, tab 79, p. 107 - by Purewal
Farms setting out various purchases of blueberries from Kliewer
Farms in 1996.
[247] The witness - Peter Kliewer - was cross-examined
by Darshen Narang. Kliewer stated that during more than 25 years
of farming, he had used the services of several labour
contractors but cannot recall their names. Each year, he and his
wife would be visited by several contractors who offered the
services of their business to pick the berry crop that season.
Discussions would take place concerning the piecework price, the
experience of the contractor and the number of workers that could
be provided. Kliewer stated he found Bant to be very reliable and
only paid him - once - at the end of the season for the labour
provided by his company. In 1996, Bant advised he had changed the
name of his business. Kliewer stated he recalled having trouble -
in 1997 - finding pickers and remembered 9 pickers were
found eventually but did not recall - specifically - telling
Fontaine that Bant had been involved in that arrangement. Kliewer
stated he did not time have to transport workers and observed
that some arrived in their own vehicles or were driven to work by
someone. There was ample room to park on the Kliewer property.
Kliewer stated he and his wife made a cleaning machine - using a
belt-shaker - to permit them to separate out green and/or
mushy berries in order to receive a first-grade rating - and a
higher price - from Purewal Farms when product was shipped there
in containers - known as "lugs" - that held 40 pounds of berries.
SRC workers did not help to clean the berries. Kliewer recalled
speaking with Janet Mah and agreed he probably told her that
sometimes one or other workers were absent due to illness. He
recalled that most of the 10 or 12 pickers were elderly and it
seemed some were related. Kliewer stated that when he handed out
picking cards, if a worker could write names in English, he
permitted that person to record the names of other pickers on
their respective cards because he could not understand the
workers when they spelled out their names. Kliewer agreed there
may have been as many as three pickers using one card but thought
that would have been unusual. Instead, a husband and wife would
use one card between them. A field was picked two or three times
per season and Kliewer stated that without referring to dates
noted on picking cards, he has no independent recollection of the
start and/or end of any season, including 1996. He was referred
to the Farm Labour Contractor Licence and stated he could not
recall having seen that document but remembered obtaining the GST
number - from Bant - that was written on a small piece of paper.
Kliewer agreed the tally sheet - Exhibit R-61 - recorded that
1,419 pounds of blueberries were picked on September 17, 1996,
the final day of the Kliewer Farms season. The yield on the
previous day was only 103 pounds and two weeks earlier - on
September 2 - the workers picked 518 pounds. Kliewer stated
he hauled - at night - one load of berries to Purewal Farms
using a 3/4 ton truck but could not recall the number of "lugs"
hauled at one time. The berries were stacked 5 bins to a pallet
and offloaded at the Purewal Farms plant which received berries
24 hours a day during the busy season. Kliewer stated Kliewer
Farms had a GST number and confirmed he and his wife had hired
SRC to provide labour only for picking.
[248] The witness - Elizabeth Kliewer - was called to
the stand and examined by Johanna Russell. She stated she was a
partner - with her husband - in the blueberry farming business
and that they had dealt with Bant - as a labour contractor - for
4 or 5 years prior to 1996. She knew Surinder (Shindo) Suran
was Bant's wife and that she drove the brown van and stayed with
the pickers all day while Bant usually showed up about noon. She
could not recall ever seeing Manjit Rana and, although she had
heard the name "Manjit", it had not been connected to the family
name "Rana". Elizabeth Kliewer stated she directed pickers to new
rows and inspected plants to ensure all the ripe berries had been
picked and also weighed the berries when handed in at the scale.
She identified the picking cards - Exhibit R-60 - as the ones
handed out each morning when each picker collected a bucket to
start the day. In her experience, there was always a worker who
could speak and write in English so that person would write
pickers' names on the cards. At the end of each day, Elizabeth
Kliewer separated the copies of the card, retained one and handed
the other to the representative of SRC. She weighed berries 4
times a day during the peak of the season but - usually - only
twice or - perhaps - three times was sufficient. At the height of
the season, berries were weighed at 11:00 a.m, noon, 4:00 p.m.
and at the end of the day, around 7:00 at night. Kliewer stated
that - sometimes - a married daughter would share a
picking card with her mother and - on occasion - family members
who had driven a picker to work would stay and help to pick but
the berries accumulated by the group would be weighed and marked
on the picking card that had been issued to the SRC employee. She
stated that to the best of her knowledge, only persons who were
related shared a picking card. When weighing berries, Kliewer
attempted to attain an exact weight of 20 pounds in the
large pail and used a scoop to pick up enough berries from a
small bucket in order to add to the larger container to make up
any small shortage. She stated pickers often carried a small
container around their waist and she would remove any excess
berries from the large container and put them into that smaller
receptacle. The scale was moved from time to time to the end of
the rows closest to the pickers. During the day, some pickers
emptied their pails on an irregular basis in order to avoid
lining up at the scale during regular weighing times.
Elizabeth Kliewer stated she and her husband insisted that
picking stop at 7:00 p.m. even if the weather was nice because
they had their own work to do after the pickers went home. She
was referred to the comment within the notes
- Exhibit R-2, tab 40 - of Fontaine that
Bant - in 1997 - had been paid by Kliewer Farms - through
the entity Loomis Enterprises - for providing 9 workers. She
stated she did not think that information was correct but
recalled Bant told them he had some sort of problems in his
business and that some former employees had burned his bus. She
recalled that a woman arrived at their farm - in 1997 - and
offered to provide some pickers. That offer was accepted and the
pickers were paid every two weeks.
[249] The witness - Elizabeth Kliewer - was
cross-examined by Darshen Narang. She stated other labour
contractors had been hired prior to 1993 but they contracted with
Bant in 1993 and thereafter each year until the end of the 1996
season. She stated she regarded Bant as a "good man" and was not
aware of any problem concerning lack of payment by his company to
any of the pickers. Each year when Bant visited their farm, they
discussed the forthcoming season and details of the proposed
contract including price and timing of the services to be
provided. Usually, the Kliewers attempted to give Bant about one
week's notice that pickers would be needed. She recalled that
many pickers were elderly and she had to lead them - on occasion
- back to a bush to show them that some berries had been missed.
Any other complaints concerning quality of work were directed to
Bant. Elizabeth Kliewer stated some blueberries were sold
directly to friends and acquaintances from a small shed on the
property but there was no selling to the general public. She
stated that if some berries had to be thrown away later for some
reason, they did not charge that amount back to any of the
pickers but merely accepted the loss. The picking rate for
blueberries was 32 cents per pound and Kliewer estimated a good
picker could pick 300 pounds per day but the average daily
production per picker was probably about 150 pounds. However,
towards the end of the season, a worker might not be able to pick
more than 40 pounds in a day as the berries were quite sparse. A
field was picked every 2 1/2 weeks until the season was over and
Bluecrop berries were picked three times as opposed to the
Rancocus variety which was picked only twice. Kliewer stated the
picking season depends on the weather and speculated that - in
2004 - it would begin one week earlier. However, the berries are
usually ready about August 1 or within that first week. She
was referred to the tally sheet - Exhibit R-61 - indicating no
berries were picked between September 2 and September 16. She
stated that appeared to be abnormal and could not recall the
reason for that gap. She knew Bant had rented a place to grow the
Rancocus variety of blueberry. According to her recollection,
most of the pickers showed up each day except one or two might be
ill or unable to attend because of a medical appointment or some
similar reason. She recalled there were about 12 workers at their
farm every day during the 1996 picking season. The picking began
with the Bluecrop variety and the Rancocus - grown in a different
field - was next but at the beginning there were a lot of green
berries which made picking more difficult.
[250] Counsel for the respondent did not re-examine.
[251] Sukhdev (Dave) Khakh was called to the stand and
examined by Johanna Russell. Khakh testified he has been the
sole shareholder in K.B.F. Enterprises Inc. since it was
incorporated on May 22, 1990. He is sole Director and President
and occupied those positions in 1996. Khakh stated this
corporation carries on a farming business (referred to earlier in
these Reasons for Judgment as Khakh Farms) by entering into
leases on various parcels of land, some of which are not renewed.
Another corporation - Khakh Farms Ltd. - was incorporated in 1993
and various members of his family serve as Directors and
Officers. However, it is not an active company and the main
reason for its incorporation was to protect the family name -
Khakh - within the agricultural industry for marketing purposes.
Khakh stated he did not recall a telephone conversation with
Janet Mah concerning the extent of the Khakh Farms operation in
1996. He was referred to notes - Exhibit R-3, tab 79,
p. 108 - made by Mah and confirmed that his farming business grew
strawberries on 140 acres of land - Cartmell Road - in Chiliwack
and also grew different varieties of strawberries on other leased
land. About 40 acres of raspberries were grown on a 140-acre
farm - at Parr Road - in Chiliwack and the corporation leased
other smaller pieces of land comprising more than 130 acres in
total. Vegetables, including broccoli, corn, cauliflower, peas
and Brussels sprouts were grown on the Cartmell Road property in
Chiliwack. Mostly strawberries were produced on 60 acres at
Prairie Road in Chiliwack but there were also some vegetables
grown on that property. Another 40-acre parcel -
North Parallel - in Abbotsford grew strawberries,
cauliflower and corn. Khakh Farms also leased a 25-acre
blueberry farm on #3 Road in Abbotsford but it had only small
plants in 1996 and did not produce a large crop that year. Khakh
stated this property also had an outdoor nursery that occupied
about 15 acres which was used to grow various trees and shrubs as
well as peas, beans and other vegetables. The
5 ½-acre home parcel at King Road in Abbotsford was
used to produce raspberries and blueberries and it had a
greenhouse which was used to propagate cauliflowers in order to
enable an early planting. Khakh stated some properties such as
the one at Cartmell Road were separated by trees so as to create
different fields. The #3 Road property had a vegetable
processing facility where crops were cooled, iced, graded, packed
into containers and shipped to customers. No berries were grown
on that land. In 1996, Khakh estimated the breakdown of revenue
for the corporation would be as follows: Strawberries - 50%;
Raspberries - 30%; Vegetables - 20%. In 1996, Khakh Farms
had between 10 and 15 employees and relied on workers
provided by labour contractors to perform most of the work on
various parcels of land. Khahk was referred to Exhibit R-62, a
letter dated May 5, 2004 from Joe Gill & Associates -
Chartered Accountants - to Johanna Russell enclosing copies of
cheques from K.B.F. Enterprises Inc. to SRC. He confirmed that
his corporation issued one cheque - in the sum of $8,000 on
October 17, 1996 and another - in the sum of $9,004.98 - on
November 15, 1996 for a total payment of $17,004.98. The notation
"Strawberry Picking Labour" appears on the memo line of the
$8,000 cheque. Khakh stated that on some days during the busy
part of the picking season, there may be 700 workers on one of
his farms provided by various farm labour contractors. He was
shown the list prepared by Janet Mah - Exhibit R-3,
tab 79, p. 109 - and stated he assumed those were the names and
amounts provided to her during their conversation but could not
specifically recall. Khakh stated that pickers are generally paid
by weight but if some circumstances arise during a "strange
year", it may be necessary to pay an hourly wage. If required to
pick on a difficult parcel, workers may insist on an hourly wage
capable of producing 10% more revenue than if they were picking
in an ordinary field. Khakh explained the life cycle of the
strawberry plant encompasses only 2 to 5 years and there are
many variables within that period. When strawberries were picked
for Khakh Farms, the workers were provided with picking cards -
in triplicate - and examples of the "Farmer" copy of the card
were filed as Exhibit R-63. Khakh stated his farming
business used one picking card for all types of berries and the
numbers printed thereon can be used to record full flats as well
as fractions thereof. During the day, the picker retained the
card. With regard to picking strawberries, Khakh stated the
berries are placed in buckets, then in flats containing
compartments of different sizes depending on the nature of the
market. Generally, a flat holds 16 pounds of berries but a
particular processor may request less weight per flat or a fresh
market - niche market - vendor may want less berries in the flat
in order to prevent them from becoming squishy. When sending
berries to this special market, Khakh Farms used experienced
pickers in order to fill the special orders of customers who
requested different weights of flats. During the peak of the
picking season, there is a steady stream of pickers carrying
berries to the scale. Any excess berries over the desired weight
are handed back to the picker who places them in a small
container or the overage is assessed as constituting a certain
fraction of a full flat and the card is punched accordingly.
Khakh stated raspberries were also placed in flats - with a
12-section insert - and some were filled only to 12 pounds in
order to satisfy the requirements of the fresh market which
amounted to between 10 and 15% of total raspberry sales. Khakh
stated a bonus could be paid to a good picker by punching his or
her card to record an extra 1/2 flat. The blueberry flats used by
Khakh Farms varied from 12 to 16 pounds. During the
blueberry harvest, there were pickers employed by various labour
contractors working in the same field and they would all bring
berries to the same weighing stations. Khakh stated that 4 scales
may be used in one field and are operated by a family member or a
Khakh Farms employee although - sometimes - a representative of
the labour contractor would operate a scale. Other than picking
cards, there were no separate list of workers or records of
amounts picked by any of them. The scales were portable and could
be lifted onto the back of a truck or placed on the ground. In
order to permit the scale operators to have a break,
Khakh Farms attempted to schedule a regular lunch hour and
breaks were also taken if the rain was heavy enough to suspend
picking. Because it would take about two days to pick a good row,
some pickers showed up early in order to choose one that had
plentiful berries. Picking was done 7 days per week. On occasion,
work extended to 8:30 p.m. or slightly later in order to finish a
field. Khakh stated he is required to attend at different farms
operated by his business and has to attend to many details during
the day. The last date when SRC provided workers was prior to
November 15, 1996, since that is the date a cheque had been
issued to that company for payment of labour. Khakh Farms also
hired labour contractors to provide workers for weeding,
transplanting cauliflower and sprouts, and to pick vegetables.
Strawberry and raspberry plants also required weeding from time
to time depending on the state of weed control during a
particular season. If workers were hired to perform these sorts
of tasks, Khakh Farms paid them an hourly rate as recorded by one
of its own employees and or/by the contractor. Khakh Farms did
not record names of individual workers, only the total number
present on a particular day. The hours of work depended on the
nature of the tasks performed and weather conditions. During
picking season, Khakh Farms employees picked berries but were
also required to carry water to workers and to assist with
loading and off-loading berries. Khakh Farms employees are paid
by the hour and the only exception is if someone has been hired
only to pick berries, in which case, he or she is compensated
according to the applicable rate for the weight of berries
picked. In 1996, Khakh Farms used a machine to pick raspberries
and blueberries but strawberries still had to be picked by hand,
sometimes as many as 4 times in one season. During the busy
season, thousands of flats of berries were picked in one day
and Khakh put in long days sometimes sleeping only two or three
hours. Khakh stated he could not recall meeting Manjit Rana and,
although he recognized the name indicated he probably would not
know Bant Suran if he saw him. This was confirmed when he could
not identify Rana nor Bant nor Shindo from photographs shown to
him by counsel. Khakh stated he does not pay a contractor for
labour supplied unless that entity produces a valid Farm Labour
Contractor Licence. Some years, contractors visit farms seeking
work while other times the growers are seeking - sometimes,
desperately - enough pickers to harvest their crops.
[252] The witness - Suhkdev Khakh - was cross-examined
by Darshen Narang. Khakh stated the corporation operating Khakh
Farms leases 3 parcels of land owned by his father. In 1996, the
business had 150 acres planted in strawberries compared with
about 80 acres in 2004. The Cartmell and Prairie Road properties
are about 30 kilometers apart and during peak periods, those
properties produced about 1,000 flats for a total weight of 75
tons. Khakh stated it takes about one week to pick a larger field
and that there may be a hiatus in picking at some point in the
overall season. Strawberries destined for the fresh market are
picked during the first week of May and some are marketed at the
Khakh Farms berry stand alongside #3 Road or sold to local
stores. During this period, the berries are expensive compared to
those shipped to the processors beginning the last week of May or
first week of June. The Chiliwack fields mature about two weeks
earlier than those in Langley but sometimes even those early
berries are not ready until the second week of June. Strawberry
plants are planted - usually - in late April or early May. Khakh
explained that the mother plant will produce berries the first
year but not the others known as "runners". In the past,
strawberry plants lasted about 5 years but currently seem to
have a shorter lifespan. A first-year plant, if placed in the
ground by late April, can produce berries in July. In order to
plant 100 acres of strawberries, 10 workers are required and -
weather permitting - can complete that task in approximately two
weeks. Khakh stated his farming operation is one of the largest
in the Fraser Valley and Khakh Farms has obtained yields of up to
8 tons per acre, an amount double the average yield in that area.
In a good year, his farming business - operated by 8 or 9 family
members and 10 or 12 non-related employees - can produce 1.2
million pounds of strawberries. Khakh described the picking
season as very busy with lots of traffic to the farm sites
including vans, yellow buses and private vehicles. The vehicles
were parked in whatever space was available and Khakh Farms owned
and operated several smaller trucks in addition to those that
towed 53-foot semi-trailers used to haul berries to the customer.
Loading - through a side door - was done by using a pallet jack
and 4 people inside the truck stacked the containers. On
occasion, berries were stacked on the ground because the trucks
were already busy hauling to the processing plant. Khakh
estimated workers could pick at least 10 flats of strawberries
per day although some might pick as many as 15 or 20 flats. Khakh
stated he tends to use the same labour contractors each year and
- in 1996 - the main one had been Star Labour that supplied a
workforce in return for payment of over $175,000. Regarding 1996,
Khakh stated he had no specific recollection of entering into any
business arrangement with Bant or anyone representing SRC and
expressed the opinion that SRC may have been brought in by
another contracting entity to supplement its own pickers. In any
event, Khakh Farms did not verify the identity of workers nor of
the labour contractors except when issuing payments based on a
summary of the information contained in picking cards. Khakh
referred to the list of payments made to contractors - Exhibit
R-3, tab 79, p. 109 - and stated that most of that hired labour
would have worked on the strawberry fields although some hours
may have been devoted to vegetable work. Khakh noted the cheque
in the amount of $8,000 and dated October 17, 1996 - Exhibit R-62
- had been issued for "strawberry picking labour". The pickers
employed directly by Khakh Farms are paid an hourly rate, at or
near the provincial minimum wage but the amount per hour paid to
a labour contractor is usually $3 or $4 more. Khakh recalled his
farm operations had been visited by an HRDC compliance team that
performed certain inspections, including examination of
employment records and related documents.
[253] Counsel for the respondent advised the Court that
a schedule - Exhibit R-64 - was
prepared by reviewing the picking cards retained by Gill Farms.
Counsel further advised the Court that a schedule of picking
cards relating to Kliewer Farms had been prepared - based on the
cards in Exhibit R-60 - and said schedule was filed as Exhibit
R-65. A review was also undertaken of picking cards
- Exhibit R-56 - issued by Monga Farms and
a summary was prepared and filed as Exhibit R-66. Counsel advised
those schedules included details of all workers named in the
picking cards, not just the appellants in the within
proceedings.
[254] Counsel advised the Court that following a
thorough review of the picking cards issued by the different
farms named above, the Minister was prepared to concede certain
aspects of the decisions concerning insurable employment that
were issued in respect to these appellants:
- Didar Singh Mehat: the relevant period of employment is from
June 10 to November 9, 1996, however the Minister holds firmly to
the previous decision that Mehat's insurable earnings during said
period were nil.
- Bhagwant Kaur Grewal: the correct period of employment is
from July 10 to September 17, 1996, but her insurable earnings
remain nil.
- Harbans Kaur Purewal: the correct period of employment is
from July 7 to August 27, 1996 and her insurable earnings were in
the sum of $2,744.
- Bakhshish Kaur Thandi: the correct period of employment is
from June 9 to October 26, 1996 but her insurable earnings remain
nil.
- Gian Singh Thandi: the correct period of employment is from
June 9 to October 26, 1996 and his insurable earnings remain in
the sum of $5,000.
[255] Bernie Keays was called to the stand and examined
by Johanna Russell. He testified he has been employed by CCRA -
and its predecessors - since 1981. Currently, he is a Litigation
Officer. He was assigned to the Appeals Division in 1991 and
remained there for 11 years. As an Appeals Officer, he worked out
of the Dunsmuir Street, Vancouver office under the supervision of
John Morgan. Keays stated that about 50% of his workload dealt
with farm workers including issues concerning the working
relationship between non-arm's length payers and employees. In
the past, he has handled files in which up to 10 workers had been
employed by the same payer. He does not speak Punjabi. Regarding
the 98 rulings issued by Janet Mah with respect to SRC workers,
47 were appealed to the Minister and Keays was assigned the task
of handling those matters in accordance with the relevant
provisions of the Act. He issued 46 decisions after
working exclusively on the SRC matter, the largest case he had
worked on during his career. Keays stated he was assigned the
appeals - from rulings - in September, 1999, and reviewed notes
of interviews involving those made by Richard Blakely, a Rulings
Officer who had participated to some extent in the investigation
carried out by HRDC. Keays stated he was provided - also - with
those files concerning HRDC workers whose admissions led to
internal action being taken by HRDC without the need to refer
those files to CCRA for a ruling on insurability. Keays was
referred to the document in Exhibit R-3, tab 79, p. 46 - headed
Table of Contents - and agreed that in the process of making his
decisions, he had access to the documents described therein. As
an example of the type of decision issued with respect to SRC
workers, Keays identified a report - Exhibit R-9, tab 80 - he
prepared concerning the appellant Inderjit Singh Atwal. This
recommendation formed part of the Master Report in Exhibit R-8,
tab 1. The decision letter - Exhibit R-9, tab 102 -
issued to Atwal on February 23, 2000 - and to all other persons
who appealed the rulings issued by Janet Mah - was signed by
John Morgan in his capacity as Team Leader. Keays explained
the process followed by CCRA is to have the decision letters
signed by a Team Leader who has been authorized by the Minister
to issue such letters on behalf of the Minister. Keays stated
that - in December, 1999 - he was contacted by the Legal Services
Society and received a letter - part of Exhibit R-68 - advising
it represented certain SRC workers. At this point, the
individuals had already filed their own appeals from the rulings
issued by Mah. Keays explained his role as an Appeals Officer
which demands that - initially - he reviews the material on file
and decide whether he should gather additional information. This
process is undertaken only after he has satisfied himself an
appeal is valid in terms of time limits and that the person
submitting said appeal has proper standing. Keays stated he
gathers additional information by sending out questionnaires and
by conducting interviews, most of which are done via
telephone, although - rarely - some are held in person, due to
the fact the Vancouver Appeals Office handles UI/EI appeals for
the entire province and it is more efficient to use the
telephone. Typically, an appeal file occupies between 7 and
12 hours of an Appeals Officer's time. Keays estimated he spent
double that amount on the SRC files and designed a Questionnaire
appropriate to address areas of concern common to SRC workers.
Keays was referred to the Questionnaire - Exhibit
R-37, tab 100 - completed by the appellant Jatinder Lidhran
and described it as typical of the one used in the ordinary
course of deciding on the nature of a recommendation to the
Minister. Keays referred to the Questionnaire in Exhibit R-13,
tab 100, completed by the appellant, Gurmail Singh Cheema,
and described it as one he had created specifically to address
issues of concern in the SRC matter. Keays stated he mailed out
Questionnaires to the addresses shown on the notices of appeal
sent to the Minister and provided sufficient time for the
recipients to consult with someone capable of reading and writing
both English and Punjabi. In the course of reviewing material,
Keays noted inconsistencies in answers provided by various
workers at various stages, including information provided to HRDC
during interviews with ICOs or when responding to queries from
Janet Mah, Rulings Officer. A Questionnaire was sent to SRC but
no response was received. Keays stated that at one point, he
telephoned Mr. Mann at PICS in order to ascertain the nature of
that organization and to clarify its function since several
workers had referred to PICS as having been involved in the
completion of their Questionnaires. Keays stated he took note of
the fact that many Questionnaires had the exact wording in their
answers even to the point of repeating the same spelling
mistakes. By way of example, Keays referred to the Questionnaire
- Exhibit R-35, tab 101 - completed on behalf of
Amarjit Kaur Grewal in which he discovered answers
identical - or nearly so - to those contained in Questionnaires
returned on behalf of Karmjit Singh Johal, Swarn Singh Toot,
Sukhwinder Kaur Toot and Gurcharan Kaur Johal. Keays stated he
made notes - Exhibit R-35, tab 98 - of his
conversation with Sukhwinder Kaur Toot's daughter -
Sukhwinder Kaur Barn - in which she stated the Questionnaires
were the same because several workers went to " the Centre" where
they " got together and completed questions." Keays said he was
provided with a phone number that he called and discovered the
"Centre" was PICS. Keays stated he received a call later from
Barn who advised that her mother's Questionnaire had been
completed by Barn's husband but almost immediately thereafter,
revised that statement to tell Keays she - and not her husband -
had completed the Questionnaire for her mother. Keays stated he
made notes - Exhibit R-67 - of his conversations
with Avtar Dhinsa, a lawyer who was acting for some SRC
workers who had appealed to the Minister for reconsideration of
the ruling issued by Mah. Keays noted that he and Dhinsa
discussed the situation in January, 2000 but no further action
was taken by Dhinsa who had moved to another law firm. Keays also
contacted Gina Bollen, bankruptcy trustee for Manjit Rana who was
an un-discharged bankrupt at that time. Keays recalled the only
conversations he had with Michel Fontaine were when he suggested
Fontaine contact CCRA rulings office in order to obtain advice
from someone in that unit and - later - when Fontaine telephoned
to ascertain which rulings - by Mah - had been appealed. In the
course of arriving at his own decisions, Keays stated he
contacted Janet Mah only for purposes of clarifying something she
had written by hand or in relation to some other piece of
information. Keays stated there was a change in the regime on
July 1, 1996 when the new Employment Insurance Act
replaced the former Unemployment Insurance Act, so the
relevant provisions of both were referred to in the decision
letters sent to appellants but there was no need to refer to the
number of insurable hours of employment because that method of
calculation was applicable only to those applications for UI
benefits filed after January 1, 1997.
[256] Keays stated his decision - Exhibit R-9, tab 80 -
to recommend to the Minister that Inderjit Singh Atwal was not
employed during the period from December 29, 1996 to January 11,
1997, was based - partly - on the strange nature of the responses
provided by Atwal during various interviews. In Keay's
perception, Atwal did not know where he had worked and could not
provide any proof of payment of wages. Later, following
Discovery, a cheque was produced by Atwal but no evidence could
be found to establish that this cheque had ever cleared the SRC
account so the position of the Minister remained unchanged.
[257] Keays recommended - and the Minister so decided -
that Sharinder Singh Bagri's period of employment with
SRC started on May 5 and ended on November 2, 1996 and that his
insurable earnings were in the sum of $2,000 according to the
cheque - Exhibit R-10, tab 91- that cleared the SRC account at TD
bank. In his report - Exhibit R-10, tab 80 - Keays noted he had
not received any Questionnaire back from Bagri and decided no
weight could be given to the "I Cash Money Give" purported cheque
- tab 90 - nor was there any evidence such as additional
cancelled cheques, receipts for cash payments, payroll deductions
and remittances. Keays stated he searched for documents that
would enable him to be satisfied that a worker had been paid
wages, as alleged. He adopted the position that if he could trace
an SRC cheque - payable to a worker - as having actually cleared
the SRC bank account, he accepted that payment of wages - in that
amount - had been made. Keays pointed out that this policy
applied only to those situations where he was satisfied there was
a true employment relationship between SRC and the worker, not
just that someone had received - and cashed - a cheque from SRC
because - without more - that did not demonstrate there had been
any insurable employment. With respect to Bagri's situation,
Keays noted the pay statement - tab 89 - purported to show
exactly the same hours of work - 112 - for every two-week pay
period. In Keays' view, this was unreasonable in the context of
the berry industry and was aware this sector of the agricultural
business remunerated pickers on the basis of piecework and not
according to an hourly rate. Keays stated he formed the opinion
when looking at the various pay statements issued to SRC workers
that they were not prepared in order to accord with reality but
merely to conform with the requirements of some piece of software
that was used to produce them. Keays stated he also noted that
remittances of income tax had not been made by SRC and while some
farm labour employers ignore tax deductions from employees due to
their low seasonal earnings, most of them deduct - and remit -
amounts attributable to UI/EI premiums and CPP
contributions. When Keays checked into that aspect of the matter,
he discovered SRC had sent in the appropriate forms to CCRA and
WCB stating it had no employees after a certain period, early in
1996. Keays referred to the T4 summary - Exhibit R-1, tab 3 -
showing the sum of $160,642.51 in purported deductions due in
respect of the SRC payroll of which only $3,724.74 had been
remitted. Concerning Bagri's appeal to the Minister, Keays stated
he did not agree with the ruling issued by Janet Mah where she
not only recognized the validity of the $2,000 cheque paid to
Bagri but added in the further sum of $1,403.36 in other
purported deductions - according to the earnings statement in
Exhibit R-10 at tab 89 - that were based on alleged gross
earnings in the sum of $10,192. Keays stated he took the position
that the earnings statements were flawed and unreliable and one
could not count deductions that were only notionally connected
with a larger sum attributable to alleged gross earnings that
remained unproven. Keays stated Mah followed the same procedure
with respect to all of the rulings issued by her in which she was
able to find a period of insurable employment and that some wages
were proven to have been paid by SRC, in order to constitute
insurable earnings. Again, Keays did not agree with that method
since Mah was giving credit to the full amount of those
deductions as though that amount had actually been paid to the
worker. Keays stated he appreciated it was not the responsibility
of any worker to ensure that his or her employer actually
remitted the source deductions to CCRA but the state of SRC
records and other documentation provided by workers was so
inadequate he could not rely on them for purposes of determining
the amount of insurable earnings, apart from those instances
- mentioned earlier - where he could trace a cheque
through the SRC bank account. Keays agreed that one approach
might be to take the amount of proven insurable earnings, then
calculate the source deductions on that amount and add it to the
first sum in order to arrive at the correct insurable earnings
applicable to the period of employment either as accepted by the
Minister or as determined by this Court.
[258] With respect to the appellant - Jaswinder Singh
Bassi - Keays stated he came to the conclusion there was no
contract of employment with SRC and - therefore - no insurable
employment. In his report - Exhibit R-11, tab 80 - he noted
Bassi's story changed at various stages and that the period of
employment of those drivers he described taking him to work did
not jibe with the details he provided on several occasions.
Further, there was no proof of payment except for his statement
he was paid at the end of the season and Bassi appeared not to
know details such as the timing of certain tasks or the
identities of co-workers until he completed the
Questionnaire.
[259] Keays decided that Taro Kaur Bassi started work on
June 10, 1996 and not on May 19th as shown on her ROE - Exhibit
R-12, tab 88. He stated he reviewed several pieces of information
including the information provided by Mark Sweeney of the British
Columbia Ministry of Agriculture that June 10th was the first day
of strawberry picking in 1996. Since Bassi had stated she picked
strawberries on her first day of work, Keays stated it made sense
to find that day as her first day of employment. Janet Mah had
located a picking card from Gill Farms indicating Bassi had
worked there one day in August but Keays disregarded it because
it did not conform with the previous requirements of the
Unemployment Insurance Act which required a minimum of 15
hours of work per week to constitute insurable employment and he
thought the transitional provisions continued that threshold
until January1, 1997 when the new legislation was in force fully
and completely. Keays accepted Bassi had been paid the sum of
$3,000 by the cheque - tab 90 - which cleared the TD bank.
However, he did not accept Mah's approach when she added in the
sum of $540 for deemed deductions on gross amounts not proven to
have been paid. On the other hand, Keays agreed that he did not
allow any increase in insurable earnings by virtue of adding sums
attributable to deductions in respect of EI premiums and CPP
contributions which - according to the terms of the relevant
legislation - deem those amounts to have been paid by the
employer - for the benefit of the employee - regardless of
whether any funds were remitted.
[260] Keays was referred to his report - Exhibit R-13,
tab 80 - with respect to the appellant Gurmail Singh Cheema. The
position taken by Keays in his recommendation to the Minister was
that Cheema had been employed from June 21 to October 21, 1996
and had insurable earnings in the sum of $6,000. Keays stated
that during his conversation with Cheema on December 12, 1999 -
via a Punjabi interpreter - he had been advised that Cheema had a
different driver taking him to work. Keays made notes - tab 96 -
of his comment to Cheema that he had told Janet Mah his driver
was Harbhajan Sing Kang and of Cheema's reply "Long time ago - I
don't remember" . Keays stated he relied on the Statutory
Declaration in which Kang stated he had not started work until
the third week in June. For that reason, Keays decided Jaswinder
Kaur Cheema had been employed from June 21 to October 12, 1996,
the same period as her husband - Gurmail Singh Cheema - because
she also identified Kang as her only driver. Keays accepted she
had been paid the sum of $7,000 by the two cheques at tabs 89 and
90.
[261] Concerning the appellant - Ajmer Kaur Gill - Keays
stated he was unable to locate proof that she had been paid any
wages in excess of the sum of $1,000 paid by cheque - tab 91 -
and disregarded the "I Cash Money Give" purported cheque.
[262] Keays reviewed material relevant to the appeal of
Gurbachan Singh Gill including documents in Exhibit R-16. Keays
stated he took into account that Gill had changed his story
several times about driving a van for SRC and did not know the
names of his alleged passengers. Further, Keays found it
unreasonable that Gill would take public transit from Surrey to
Vancouver to pick up a van - near Rana's house - in order to turn
around and drive to Richmond. Keays stated he also found it
difficult to accept that Gill had been driving a van - 7 days a
week - in November and December. Keays stated he was aware that a
cheque - tab 92 - dated October 25, 1996, in the sum of $1,300
had been deposited into the Gill account at Canada Trust on
October 31, 1996 and then cleared through the SRC account.
Notwithstanding this apparent payment, Keays stated the
overwhelming evidence available to him caused him to conclude
there had been no real contract of employment between Gill and
SRC.
[263] With respect to Gurmail Singh Gill, Keays' report
- Exhibit R-17, tab 80 - stated his conclusion was that Gill was
employed from June 23 to October 19, 1996 and had insurable
earnings in the sum of $3,151 based on the two negotiated cheques
at tabs 95 and 96. Keays stated he did not accept Gurmail Singh
Gill's version about working until November 2, 1996 nor did he
believe the story about receiving an advance payment of several
thousand dollars from Rana - in order to send money to India -
before he had earned anywhere near that sum.
[264] Keays stated he reviewed the appeal of Ravjit Gill
and concluded in his report - Exhibit R-18, tab 80 - that Gill
was not employed in insurable employment with SRC, as alleged or
at all. Keays stated he considered that 3 cheques - tabs 91, 92
and 93 - payable to Ravjit Gill and totalling $6,900 had been
negotiated prior to his last day of work and amounted to $500
more than his alleged net pay according to the statement at tab
94, without taking into consideration several cash payments
alleged to have been received by Gill from time to time over the
course of his employment. Gill had provided answers earlier to
HRDC - and to Mah - that he was paid near the end of his work and
had never used picking cards. Keays noted several other
significant discrepancies relating to mode of transportation to
work and other work-related matters and - on balance - concluded
there had not been any contract of service between Ravjit Gill
and SRC.
[265] Concerning the appeal to the Minister by Amerjit
Kaur Grewal, Keays recommended - Exhibit R-35, tab 80 - that a
finding be issued that she was employed in insurable employment
from June 9 to October 12, 1996 and had insurable earnings in the
sum of $4,000. At this point, Keays was not aware Grewal had
returned $4,000 to Rana/Bant/Shindo at their residence in
exchange for her ROE, as she admitted later during her testimony
in Court.
[266] Keays stated he came to the conclusion that
Bhagwant Kaur Grewal had not been employed by SRC as alleged in
her ROE - Exhibit R-34, tab 88 - or at all. Although there was a
cheque - tab 90 - issued to Grewal in the sum of $2,000 and it
had cleared the TD bank on November 4, 1996, Keays concluded
Mah's ruling was correct because there was reason to believe that
money had been returned to SRC in exchange for an ROE. Keays
acknowledged the Minister had conceded that Grewal had been
employed by SRC from July 10 to September 17, 1996 - based on a
review of picking cards - but still maintained she had no
insurable earnings.
[267] Keays concluded in his report - Exhibit R-38, tab
80 - that Sukhwinder Kaur Hundal had not been employed
pursuant to a contract of service. Apart from the so-called "I
Cash Money Give" cheque, there was no other reliable
documentation or other evidence to prove she had received any
wages. Keays stated he took into account the period of her
alleged SRC employment - 6 weeks - which, in addition to her
other, permitted her to qualify for UI benefits. Further, he was
aware there had been a lot of cold weather and snow within the
period from November 17 to December 28, 1996 and she alleged that
she was picking vegetables and sprouts - even when it was snowing
- but did not know the location of the farm. Further, Hundal's
alleged co-workers had all finished work before her purported
starting date of November 17. She was the only SRC worker living
in Coquitlam and Keays considered it did not make sense for SRC
to dispatch a van just to pick up one worker. There was no proof
of payment other than the assertion by Hundal - rejected by Keays
- that the "I Cash Money Give Cheque" was utilized as a form of
receipt acknowledging a cash payment to her from someone at
SRC.
[268] Keays stated he recommended in his report -
Exhibit R-19, tab 80 - that the Minister issue a decision to
Varinder Kaur Jassal finding that her employment was from May 12
to October 26, 1996 and that she had insurable earnings in the
sum of $7,000. Keays stated he did not accept the dates shown in
her ROE - tab 88 - indicating she started work on April 21 and
finished on November 16. The factors leading to his
recommendation included an ongoing inconsistency in naming
drivers and Keays stated he fixed Jassal's start date to
correspond with Shindo's period of employment since she had
started work on May 12, 1996 - according to the ROE issued by SRC
- and Jassal had stated earlier she was driven to work by Shindo
on her first day. Keays accepted Jassal had been paid a total of
$7,000 by cheques - tabs 90 and 91 - issued to her.
Keays agreed Jassal had been given credit for deductions -
including $791.67 in income tax - according to the print-out
- tab 98 - of her 1996 T1 income tax return
and that this situation would remain unchanged since it was too
late for the Minister to reassess.
[269] Concerning the appellant Gurcharan Kaur Johal,
Keays was satisfied in his report on appeal to the Minister -
Exhibit R-20, tab 80 - that she was employed by SRC from June 21
to October 12, 1996 and had insurable earnings of $5,000. He
stated he did not accept the start date of May 26 shown on her
ROE because she told HRDC that Kang was her driver. Therefore,
Keays used Kang's start date of June 21 to determine Johal's
first day of employment. He also noted her answers to questions
25, 26, 32, 33, 34, 35, 38 and 39 in the Questionnaire - tab 104
- were identical in most respects with those found in the
Questionnaires returned by other SRC workers.
[270] Keays stated he concluded in his report - Exhibit
R-36, tab 80 - that Sharda Kaur Joshi had not been engaged
in insurable employment with SRC. Despite numerous calls to the
Legal Services counsellor and - later - to Joshi's husband, the
Questionnaire was never completed and returned to his office.
Keays stated he knew a cheque - tab 89 - payable to Joshi - in
the sum of $4,000 - had been cashed at the TD bank on October 7,
1996. According to her ROE - tab 87 - she started work on June 9
and was laid off on October 12, 1996. Keays stated he took into
account Joshi had a baby at the end of March, 1996 and was living
in Abbotsford during the time she was alleged to have worked at
the vegetable farms in Richmond. Keays relied on information
indicating another person - also living in Abbotsford - had
admitted that the ROE issued to her - by SRC - was false. Keays
stated that meant Joshi was the only SRC worker living in
Abbotsford and considered it did not make any sense that SRC
would send a van to Abbotsford in order to pick her up and return
her at night just so she could pick vegetables in Richmond. In
answering Q. 7 of her interview - tab 92 - Joshi told Barb Long
- ICO - that she began weeding in June, picked
raspberries in July - after picking strawberries in June - and
then picked blueberries at the end of July and through August.
Keays stated he was aware of that response but was unable to find
other material capable of corroborating that statement.
[271] When considering the appeal to the Minister by
Harbans Kaur Kang, Keays noted in his report - Exhibit R-22, tab
80 - that although her ROE showed a start date of June 16, 1996,
he determined it was probable she had not started until
June 23 because she told HRDC her husband - Harbhajan Singh
Kang - had started working at SRC first and then she was hired.
She also told HRDC that she rode to work with her husband on both
her first and last day of work because he was a van driver. Keays
stated the date of June 21, 1996 was chosen by the Minister as
Harbhajan Singh Kang's first day of work when issuing a decision
to him and that decision has not been appealed to the Tax Court
of Canada. Keays stated he was satisfied two cheques - tabs 90
and 91 - had cleared the SRC bank account after being deposited
to the credit of the Kang's account at Canada trust. However, the
total amount - $6,879 - of those cheques exceeded the net
earnings of $6,071 as shown on the pay statement of Harbans Kaur
Kang at tab 93. As a result of that discrepancy, Keays decided he
could not allow more than the net pay amount as insurable
earnings and recommended the Minister issue a decision
accordingly.
[272] Keays stated he was not satisfied Varinder Kaur
Kang had been employed pursuant to a contract of service and so
advised the Minister in his report in Exhibit R-23, tab 80.
The ROE - tab 93 - issued to Kang showed her dates of employment
as encompassing the period from October 6 to December 28, 1996.
In rejecting the validity of that document, Keays stated he
considered that Kang's version of work performed had changed
several times and that she maintained she started work - in a
labour intensive occupation - only 5 weeks after the birth of her
baby. She had also stated that her only driver was Bhan Singh
Sidhu (Master). Keays reviewed various scenarios surrounding
alleged payment of wages to Kang and found no proof to support
Kang's contentions except for the receipt - tab 89 - dated
December 28, 1996, that she presented to him. Keays pointed out
the wording of the receipt was such that it appeared as though
the sum of $2,000 had been received from her and not paid to her.
Because - at one point - Rana had admitted - but later recanted -
to selling ROEs, Keays stated he doubted that piece of paper was
reliable proof that she had been paid that amount in wages.
During her first HRDC interview, Kang stated she repaid the sum
of $2,000 to SRC because she had to repay the balance of a loan
made earlier to her in-laws so they could travel to India. During
that interview, she also denied having seen the receipt at tab
89. She also told the interviewer that she only worked 26-32
hours a week in November and thought her employer was "banking
her hours". Since Master's last day of work was October 12, 1996,
Keays decided she could not have been riding with him thereafter,
particularly because she had informed HRDC that Master was her
only driver.
[273] Keays stated he recommended in his report -
Exhibit R-37, tab 80 - that the Minister find Jatinder Lidhran
had not been engaged in insurable employment with SRC from August
25 to October 12, 1996, as shown on her ROE at tab 89. Keays
recalled Legal Services Society - at one point - represented
Lidhran but were no longer acting for her when he had a telephone
conversation with her on February 15, 2000 and made notes of her
answers - tab 99 - to the questions posed. A cheque - tab 90 - in
the sum of $2,500 had been deposited to Lidhran's joint account
at the Kingsway VanCity branch on October 18, 1996.
Notwithstanding that payment, Keays stated he took into account
that Lidhran had only earned - after deductions - the
sum of $2,098 according to the employee earnings record
- at tab 91 - and it seemed odd she would be paid
$2,500. Keays stated Lidhran told him the cheque had arrived by
mail and she thought the extra amount was a bonus. Keays stated
he was troubled by the lack of clarity in Lidhran's answers on
issues such as the identity of her driver and noted her ROE is
dated September 15, 1996, more than a month prior to her alleged
layoff. He also reviewed the answer in Box 18 of her
application - tab 92 - for UI benefits where she described her
work as including raspberry and blueberry picking. He thought
this was strange because she told HRDC and Janet Mah - later -
her only work for SRC was in connection with vegetables in
Richmond. Keays also noted her 7-week period of employment with
SRC was precisely enough to enable her to qualify for UI benefits
when added to her previous work done at Lidhran Farms.
[274] Keays stated he was aware counsel for the
respondent had conceded that Didar Singh Mehat was employed by
SRC from June 10 to November 9, 1996 but still maintained his
insurable earnings were nil. Keays stated he was unable to find
any proof Mehat had been paid wages. There was a story about an
NSF cheque being redeemed by a cash payment and Keays was aware
that an "I Cash Money Give" purported cheque - Exhibit R-25, tab
98 - in the sum of $6,000 had been created by someone for some
purpose. Keays stated he had no faith in the alleged receipts -
tab 91 - and there were a lot of inconsistencies in Mehat's
statements concerning his rate of pay and timing of cash
payments.
[275] Keays recommended in his report - Exhibit R-26,
tab 80 - that the Minister decide Prabhjot Kaur Minhas was
engaged in insurable employment with SRC from July 14 to October
5, 1996 and had insurable earnings in the sum of $1,633 based on
the cheque - tab 90 - that had cleared the SRC account at TD
bank. Keays stated he reviewed the Rulings Report prepared by
Janet Mah as well as notes of HRDC interviews and concluded the
employment of Minhas had to coincide with that of Harjit Singh
Gill since she mentioned riding to work on a school bus and Gill
was the only person who drove that bus. Gill's last day of work
was October, 5, 1996. As he had done in the past with respect to
other appellants, Keays ignored the " I Cash Money Give"
purported cheque - at tab 91 - in the sum of $4,000.
[276] Keays stated he was aware counsel for the
respondent - based on a review of picking cards - had conceded
Harbans Kaur Purewal was employed in insurable employment with
SRC from July 7 to August 27, 1996 rather than from July 14 to
August 24, 1996, as decided earlier by the Minister in accordance
with Keays' recommendation in Exhibit R-27 at tab 80. He read her
Statutory Declaration - tab 91 - dated February
6, 1998 - prepared by her daughter - wherein she stated she
worked only 7-8 weeks and did not work during the months of
September to December, inclusive. Keays stated he was aware two
cheques in the sums of $6,000 and $500, respectively - at tabs 93
and 94 - had cleared the SRC account. Because of her admission
that she had only worked 7 or 8 weeks, Keays considered those
payments did not correspond with her limited earnings at $7 per
hour, as alleged, or on the basis of the applicable rates for
piecework within the berry industry. The ROE - tab 96 - issued to
Harbans Kaur Purewal showed her last day of work was December 14,
1996. Keays stated the original confusion surrounding whether
Purewal was in India during the relevant period had been cleared
up and played no part in his recommendation. Keays stated that
although there was no proof of payment, he accepted she had
worked 56 hours a week for 7 weeks at $7 per hour and - therefore
- had insurable earnings in the sum of $2,744. He acknowledged
that was a rough method of arriving at a number for purposes of
fixing the amount of insurable earnings but considered there had
been no alternative due to lack of documentation.
[277] Keays referred to his report - Exhibit R-28, tab
80 - concerning Parmjit Kaur Rehal. He was satisfied Rehal
had been employed in insurable employment with SRC for a period
of 17 weeks from June 22 to October 19, 1996 and had insurable
earnings in the sum of $6,200. The ROE - tab 89 - issued to Rehal
showed her last day of work as December 7, 1996. Keays stated he
reviewed earlier statements by Rehal that her only drivers were
Harjit Singh Gill and Harhajan Singh Kang, and neither one worked
after October 19, 1996. Keays determined insurable earnings on
the basis of 4 cheques - tabs 93, 94, 95, 96 - totalling $6,200
all of which were deposited to Rehal's account at Khalsa Credit
Union and had cleared the TB bank.
[278] Keays stated he was aware counsel for the
respondent had conceded that Bakhshish Kaur Thandi's correct
period of insurable employment was from June 9 to October 26,
1996. However, the Minister did not amend the decision so as to
recognize any insurable earnings which were stated as nil in the
original decision issued on February 23, 2000. Once again, Keays
disregarded a "I Cash Money Give" purported cheque - Exhibit
R-29, tab 90 - as having no significance because it did not
establish any payment of wages to Thandi. Keays stated he
reviewed the admissions by Thandi - to Fontaine - in the presence
of her daughter as contained in the notes - tab 91 and tab 93 -
prepared by Fontaine that she had worked only for the "
weeks" in order to obtain an ROE which would entitle her to
receive UI benefits. Keays also noted the statement by
Thandi's daughter that her father had paid money to SRC. Keays
stated he knew Thandi's name was on picking cards issued to her
by Gill Farms but she had told HRDC she had not used them and
repeated that assertion when responding to the Questionnaire at
tab 106.
[279] Keays stated he knew of the concession by counsel
for the respondent that the Minister accepted Gian Singh Thandi
had been engaged in insurable employment from June 9 to October
26, 1996 - the same period as his wife, Bakhshish Kaur Thandi -
and that he had insurable earnings of $5,000. Keays stated he had
accepted that Gian Singh Thandi had been paid the sum of $5,000
by cheque - Exhibit R-30, tab 89 - which, although dated
September 15, 1996 was not deposited until December 16, 1996.
Keays reviewed the bank statement - tab 97 - and noted the sum of
$4,200 was withdrawn on December 24th which was consistent with
the statement by his daughter - Maninder Thalman - that he had
paid money back to Rana and/or Bant. According to the pay
statement at tab 88, Gian Singh Thandi was entitled to receive
only $6,764 in net earnings yet he purported to have received
cash in the same amount as the "I Cash Money Give" purported
cheque of $4,000 - at tab 90 - which, if true, meant he was paid
a total of $9,000, an amount that exceeded even his purported
gross earnings in the sum of $7,840.
[280] Regarding the appeal to the Minister by Sukhwinder
Kaur Toot, Keays' advice as set forth in his report - Exhibit
R-31, tab 80 - was that the Minister find she was employed in
insurable employment from May 26 to September 30, 1996 and had
insurable earnings in the sum of $5,000 to accord with the cheque
- tab 90 - which had cleared the TD bank.
Keays stated he was not persuaded that the ROE - tab 87 - was
correct when it showed Toot's employment began on April 14
and ended on October 12, 1996. Keays reviewed statements made by
Toot during an HRDC interview as well as her response in a
Questionnaire - tab 85 - completed during the rulings stage and
decided she had not worked past the "9th month"
as she had stated to ICO Gail Buckland during her interview. The
Statutory Declaration - tab 99 - prepared by Toot's son - Satnam
Toot - contained the statement that she worked from April through
September. Keays stated he accepted she worked until September 30
but could not find any support for her contention that she had
begun working as early as April 14 because
Harjit Singh Gill was the first driver hired by SRC in
1996 but that was not until May 5 so Master and/or Harbhajan Kang
could not have driven Toot to work in April, as she claimed.
Keays stated he considered Toot needed 26 weeks of employment to
qualify for UI benefits and that it was this precise period which
was covered by her ROE. In terms of insurable earnings, he was
unable to discover any documentation to support Toot's assertion
that she had deposited some SRC pay cheques into her account at
Canada Trust.
[281] The witness - Bernie Keays - was cross-examined by
Darshen Narang. Keays stated the number of appeals - from rulings
- by SRC workers was the second-largest he had handled in the
course of his career. He estimated that 50% of his usual caseload
of about 150 files a year would concern farm workers. Keays
pointed out he had been the Appeals Officer - in 1993 - when 76
employees of Narang Farms had appealed their rulings. He stated
he has had experience dealing with files involving labour
contractors who have employed up to 10 workers and
- in his experience - 95% of all farm labourers in the
Lower Mainland are Indians or Indo-Canadians. He stated that when
someone appeals a ruling, he wants to see payroll records and any
other documents that are capable of substantiating that wages
were paid. Keays explained his role as an Appeals Officer permits
him to gather additional information as he deems fit or to rely
on the information contained in the material forwarded by the
Rulings Officer. He commented that in the SRC matter, there was
extensive information on file, including documentation and
reports of HRDC interviews, banking records, cancelled cheques
and so on. He confirmed with Gina Bollen - Bankruptcy Trustee -
that Rana had not been discharged as of September, 1999 with
respect to his personal bankruptcy filed in accordance with the
summary administration procedure deemed appropriate for persons
without assets. Keays confirmed his earlier view that he did not
have the power to compel Rana to attend an interview and did not
attempt to persuade Gina Bollen to use her authority to
compel Rana to provide certain information. Keays stated he
reviewed about 100 files after the SRC workers' appeals were
assigned to him. By perusing the Admissions/Discrepancy Summary -
Exhibit R-1, tab 20 - he ascertained that 4 SRC workers who were
the subject of 5 ROEs issued by SRC admitted - to HRDC - they had
performed no work whatsoever. Another 7 workers - who were
issued 7 ROEs in total - admitted they had worked less than shown
on their ROEs. Further, 4 workers - who between them received 5
ROEs - admitted that all or part of their wages were repaid to
the employer. Keays noted there were another 10 UI claims where
people had purchased an ROE and Rana - prior to
recanting - agreed he had sold 10 ROEs and issued receipts to the
purchasers. The remainder - concerning 76 workers who had been
issued a total of 82 ROEs - contained substantial discrepancies,
according to paragraph 5 of the Summary. While performing his
duty as an Appeals Officer with respect to the rulings issued by
Mah, Keays stated his only contact with Mah was to clarify her
handwriting or her method of calculating insurable earnings. She
did not forward him any picking cards but listed the cards she
had reviewed personally and he was confident she had seen the
originals. He had no contact with Richard Blakely. With regard to
keeping track of hours worked, Keays stated that in his
experience 30% to 40% of workers keep a record on a calendar
while others prepare their own time sheets. He conceded there is
a problem in producing such records since his duties as an
Appeals Officer are not carried out until several months or more
than a year after the employment has ended. Keays stated his
understanding of picking cards was that they permitted the
farmer, a worker and - sometimes - also a labour contractor to
record production of each type of berry picked. The amount picked
daily by a specific worker could be monitored and workers - at
the end of the season - could compare their copies of the picking
cards with those retained by their employer in order to arrive at
a final settlement of their wages. Keays agreed he would have
preferred to question Rana but - in view of Rana's track record
in refusing to attend additional interviews at HRDC or to provide
further information - soon decided it was unlikely Rana would
attend at his office for questioning. Keays stated he will
attempt to follow up by telephone if a Questionnaire is not
returned. The Questionnaire used with respect to SRC workers was
somewhat different than normal in that Keays designed specific
questions to elicit information regarding matters at issue. Keays
stated time is limited to issue a recommendation on an appeal
from a ruling and he does not leave the office to visit a worker
but any person with relevant information can attend his office at
any time. Keays observed that about 80% of Indian workers cannot
speak English so he is forced to rely on a member of a worker's
family - or a friend - to interpret the questions and complete
the Questionnaire. Keays agreed some labour is supplied to farms
in April but considered June, July and August were the only busy
months as work started to slow down in September until it came to
an end in October each season. He stated he relies on the
opinions of experts to fix harvesting dates in a particular year
but is aware - generally - that strawberries are picked in June
and raspberries in July, although they overlap to some extent
with blueberries which are harvested through August into
September. Keays conceded he is not as familiar with probable
harvest dates for various types of vegetables but when confronted
with a situation where workers claim to be picking vegetables in
November and December, will pursue the matter to determine if
that is reasonable. Keays agreed the pay statements issued by SRC
- at the end of the season - were not accurate because no worker
had been paid bi-weekly. Keays stated that this lack of proper
records was not unusual within the agricultural industry during
1996 and earlier but the creation of ACT - the farm inspection
unit - had an impact and brought about more conformity with
provincial employment standards and record-keeping requirements
for purposes under federal jurisdiction such as income tax, CPP
and EI. Keays stated he was accustomed to handling files where a
worker received cash payments as "advances" in the sense these
payments - whether by cash or cheque - would be deducted at the
end of the season from the total amount earned by a worker prior
to a final cheque being issued. At the end, source deductions
should be calculated by the employer on the entire amount earned
during the period of employment and not just with respect to the
final payment. In Keays' experience, it was normal for employers
to use a standard receipt book to record cash payments to
workers. However, he had never seen anyone use - as a form of
receipt - the method of preparing the numerous "I Cash Money
Give" purported cheques found in the documentation pertaining to
the SRC case. Keays stated it is not a difficult concept to
expect that both a worker and employer should maintain sufficient
records in order to demonstrate that payment of wages was made.
He stated he was not concerned with the form of a receipt which,
in his experience, was often signed by both the recipient and the
payer but looked for some reliable record that proved an employee
received certain funds. Keays stated he relied on the start and
end date of SRC drivers as set out in their ROEs originally - or
as in the case of Harbhajan Singh Kang corrected, later -
together with information that was cross-referenced in order to
provide a time frame capable of providing a schedule of dates in
order to verify whether the statement of a worker that he or she
had been driven by a particular person was really true. He
accepted the employment of 4 SRC drivers was legitimate including
that of Harbhajan Singh Kang who worked from June 21 to October
19, 1996. Start and end dates for Surinder (Shindo) Suran, Harjit
Singh Gill and Bhan Singh Sidhu (Master) were accepted as
accurate, particularly since there was an absence of any reliable
information to the contrary. Once starting dates had been
adjusted to conform with the facts either before or at the
rulings stage, none of the drivers appealed the decisions issued
to them by the Minister concerning either their period of
employment or insurable earnings. As a result, that fact taken in
conjunction with other information, led him to rely on those
dates of employment. Keays stated he did not accept that Rana was
a driver since less than 5% of the workers named him and he did
not have a Driver's Licence at that time. Keays was satisfied
Shindo's last day of work was October 26, 1996 and made several
recommendations based on it because some workers stated they rode
only with Shindo. During the rulings stage and thereafter, Keays
pointed out that many of the original decisions issued by the
Minister had been amended to conform with reliable information
provided - or discovered - later. With respect to the total
- 109 - ROEs issued by SRC in 1996, 101 claims
for UI benefits were filed. Keays confirmed it had never been an
issue whether any worker had supplied services as an independent
contractor since it was abundantly clear to everyone that they
were employees within the legal definition of that term. With
respect to the appeal of Inderjit Singh Atwal, Keays pointed out
Rana had advised his bankruptcy trustee that the last day SRC
carried on business was December 31, 1996. Therefore, it seemed
rather odd that Atwal would be working for SRC in January, 1997
and - overall - considered his various stories about
working to be bizarre since they did not accord with his own
earlier statements let alone any independent source of
information. Keays stated he can recommend that a certain
decision be issued by the Minister concerning insurability of
employment but the calculation of weeks of entitlement, amount of
benefits and related matters is within the jurisdiction of an
adjudicator. He stated he considered he had been generous in
recognizing periods of employment - even in the absence of hard
proof - provided that the work alleged to have been done
conformed with the sort of tasks one would expect to be carried
out during that particular period. As an example, if a worker
asserted he or she had picked berries in June, July and August
and there was proof of payment, he accepted that information on
the basis it was true. Keays stated the end dates of employment
for SRC drivers - in 1996 - were as follows:
Harjit Singh Gill - October 5; Bhan
Singh Sidhu (Master) - October 12; Surinder (Shindo) Suran
- October 26; Harbajan ( Bajan) Kang - October 19; and
Balwinder (Binder) Singh Chahal - the last one laid off -
November 16.
[282] With respect to his report - Exhibit R-18, tab 80
- concerning the appeal by Ravjit Gill - Keays recommended the
Minister find Gill had not been employed pursuant to a contract
of service. Keays stated he was concerned with a number of
inconsistencies in details provided by Gill about his work. At
one point, he maintained he always drove his own car to work and
stated he had been paid 3 to 5 times during the season and
obtained his ROE at Rana's house. However, Gill's answer to Q. 4
and Q. 8 of the Questionnaire - tab 104 - indicated he rode to
work in both the van and bus driven by "an older guy". He also
said he did not use any picking cards and was paid $8 per hour
and had received his wages both in the form of cheques and cash.
The three cheques - tabs 91, 92 and 93 - totalling $6,900 were
deposited into Gill's account at Canada Trust. According to
Gill's pay statement - tab 94 - he was entitled to receive only
$6,376 in net earnings. Keays agreed the bank statement - tab 96
- did not show any large withdrawals subsequent to the deposits
of those cheques on September 27, October 3 and October 24,
respectively, that might give rise to suspicions some money had
been repaid to the employer. Keays stated the amount of
overpayment to Gill - just in cheques - without taking into
account the cash he allegedly received was sufficient to question
the validity of Gill's employment with SRC.
[283] Keays stated that when dealing with the appeal by
Harbans Kaur Kang, he noted in his report - Exhibit R-22, tab 80
- that she had been paid $6,879 - by cheque - but had net
earnings of only $6,071. As a result, he felt he could not allow
an amount greater than that when determining insurable earnings.
Although he had doubts about the accuracy of all the pay
statements issued on behalf of SRC, he used the figure of $7,000
as representing the maximum amount earned by the worker and made
an effort to arrive at the amount of insurable earnings based on
that gross amount. Narang referred Keays to Kang's ROE - tab 92 -
showing insurable earnings in the sum of $7,000. Since Keays
recommended the start date for Kang be advanced one week to June
23, 1996, Narang suggested it would have been possible merely to
deduct one week's wages - $392 - from the gross amount of $7,000
in order to arrive at insurable earnings in the sum of $6,608.
Keays stated he had chosen his own method - albeit somewhat
imprecise - to arrive at his recommended amount.
[284] Concerning the appeal by Harbans Kaur Purewal,
Keays stated he relied on the Statutory Declaration - Exhibit
R-27, tab 91 - which reiterated in solemn form earlier statements
by Purewal to Jeannie Suric during the interview. He telephoned
Suric and made notes - tab 102 - of his conversation during which
he received confirmation that the information in the declaration
and interview notes was correct namely, that Purewal had not
worked for SRC from September through December.
[285] Keays stated he did not accept that Parmjit Kaur
Rehal had worked until December 7, 1996 as shown on her ROE -
Exhibit R-28, tab 89 - because the drivers named by her had not
worked after October 19, 1996. When responding to the
Questionnaire - tab 103 - Rehal stated - at Q. 8 - that she had
different drivers. In view of that response, Keays stated he
chose the last day of work by Kang as representing the last date
of Rehal's employment. Keays agreed that when calculating the
amount of her insurable earnings he did not include amounts of
income tax deductions since he knew only a small amount of total
deductions had been remitted by SRC and there was no deeming
provision - with respect to income tax deductions - that could
benefit the worker. Keays stated he was not influenced by the
fact Rehal arrived in Canada and started working for SRC two days
later.
[286] Keays recommended in his report - Exhibit R-20,
tab 80 - that the Minister should decide the start date of the
employment of Gurcharan Kaur Johal was June 21, 1996 in
order to correspond with the first day of Harbhajan Singh Kang's
employment as a driver. Keays agreed with Narang's suggestion
that she could have ridden with Master as early as May 26th - the
date used in her ROE - or with Shindo, who started work on May
12.
[287] Keays stated he relied on the Statutory
Declaration - Exhibit R-31, tab 99 - of Sukhwinder Kaur Toot that
she worked until September, 1996 but could not accept her
assertion that she started in April because during the interview
with Janice Morrow - tab 93 - she stated she went to work with
her husband on the first day but he did not start until July.
Toot also told Janice Morrow they were driven to work by someone
whom Morrow recorded as "Bajein Singh". Keays decided the
reference was to Bhan Singh Sidhu (Master) and chose his first
day of work as the one also applicable to Toot. Keays stated he
decided to recognize payment by cheque - tab 90 - issued to
Sukhwinder Kaur Toot even though he considered it somewhat odd
that it was cashed at the employer's TD bank.
[288] Keays stated he reviewed the material with respect
to the appeal - from a ruling - by Taro Kaur Bassi. In his report
- Exhibit R-12 - tab 80 - he referred to Bassi's statement to Mah
that she picked strawberries on her first day of work. Keays
stated he relied on expert advice to establish the date of June
10 as the first day strawberries were picked in 1996. Keays
conceded that Bassi, during her HRDC interview - tab 92, Q. 7 -
was asked to provide details of her work beginning at the first
day. The recorded response is that she dug up potatoes left over
from last season, then washed vegetables before picking three
types of berries. Keays agreed Bassi's recital of her duties
first mentioned "weeding" when answering Q. 14 of the
Questionnaire - tab 97 - which requested her to begin by
describing duties during each month of employment.
[289] Keays stated he could not accept that Varinder
Kaur Jassal started work on April 21, 1996, as shown on her ROE
at tab 88 of Exhibit R-19 because Jassal stated Shindo drove her
to work on her first day and Shindo did not start work until May
12, 1996. He noted Jassal had named only Shindo and Harjit Gill
as her drivers. For similar reasons linked to the dates of
employment of drivers named by certain workers, Keays stated he
concluded Prabhjot Kaur Minhas must have finished work on October
5, 1996 since she had named Harjit Gill as her only driver and
October 5 was his last day. Further, Ajmer Kaur Gill told HRDC
that she had been driven to work by Shindo and/or Harjit Gill
after they had been laid off and there was no independent proof
that Rana had ever driven anyone to work, let alone Ajmer Kaur
Gill.
[290] Keays stated he rejected the information provided
by Gurbachan Singh Gill and determined he had not been employed
by SRC. The details of his so-called work did not make any sense
and he changed his story on several occasions.
[291] Keays estimated that - overall - perhaps 5% of the
ROEs issued by SRC accurately stated the facts regarding the
employment of a particular worker.
[292] The witness - Janet Mah - was called to the stand
and examined by Johanna Russell. Mah testified she is
employed - by CCRA - as an Appeals Officer. She began her career
- in 1991 - as a General Inquiries Clerk and later worked as a
Rulings Officer from November, 1992 until October, 2000, when she
took up her current position. She stated she did not work as an
Appeals Officer until several months after Bernie Keays had
concluded his review of her rulings with respect to SRC workers
and the letters of decision had been issued by the Minister.
While working as a Rulings Officer, Mah worked out of the West
Pender office in Vancouver. Mah stated Richard Blakely was a
fellow Rulings Officer but worked mainly from his own home
pursuant to a tele-work program in effect at that time. Prior to
undertaking the process of issuing rulings in the SRC matter, Mah
stated she had never been involved in such a large-scale
situation as her work usually concerned cases affecting two or
three workers and often required a ruling in respect of a
non-arm's length issue. Mah does not speak Punjabi. She stated
she began working on the SRC rulings in February, 1999 and began
issuing them - in a series of batches - commencing June, 1999.
Overall, she had 96 to 98 requests for rulings and each file
contained the relevant ROE, application for UI benefits, notes of
HRDC interviews and documentation for SRC books and records. Mah
was referred to sheets in Exhibit R-3, tab 79, pp. 46 and 47 -
Table of contents - and acknowledged she had reviewed those
documents in the course of issuing her rulings. She did not
recall whether she read the notes - Exhibit R-3, tab 67 - taken
by Blakely of the HRDC interview with Rana and stated that if she
had, she was not aware they had been made by him. Mah stated the
usual form of contact with both the worker and the employer is by
telephone and no Questionnaire is used. An ordinary ruling will
occupy from 2 to 4 hours but in the SRC matter, she prepared a
Questionnaire and sent one to each worker - named in the HRDC
Request for Ruling - at the address provided within that request.
The Questionnaires were sent via Express Post and Canada Post
provided confirmation of delivery. Mah stated she contacted - or
attempted to contact - every worker by telephone and made
handwritten notes of telephone conversations which she later
typed and saved to the relevant file in her computer. In the
event a worker spoke only Punjabi, Mah provided her telephone
number and asked that someone call her back or she requested a
Punjabi-speaking co-worker to speak to that person. When someone
called back - on behalf of a worker - Mah stated she asked
certain questions designed to confirm the identity of the person
to whom the Questionnaire had been sent and to verify that the
caller was prepared to act as an interpreter to facilitate the
process. Mah stated she never had any contact with Rana because a
registered letter sent to the proper address was returned as
"undeliverable". Acting on certain other information, she made
other attempts to locate Rana at a certain address but received a
response that he was not there. She also asked the former SRC
workers if they knew where Rana was living but did not receive
any information in that regard. On April 28, 1999, Mah spoke to
Grewal - Rana's lawyer - who advised he was no longer acting for
Rana and provided - later - a letter of confirmation. Mah
contacted Gina Bollen - Rana's bankruptcy trustee - in an attempt
to find a "blue book" allegedly used by Rana to record workers'
hours, according to information received from Amarjit Dhesi at
Bains Tax. Mah stated she called the office of Bains Tax on March
5, 1999 and was told SRC was no longer a client. Then, on March
31, 1999, she spoke with Amarjit Dhesi - former employee of Bains
Tax - who stated she could not recall much of her previous work
and had no specific recollection of events concerning SRC as she
had done payroll work for various payers. Mah sent out a letter
to Surinder (Shindo) Suran containing a Questionnaire but the
letter was returned by Canada Post. She made other attempts - via
telephone calls and searches - to locate Shindo but was not
successful. Mah stated she contacted Mark Sweeney and was advised
that although strawberry season generally begins in mid-June, it
was earlier in 1996 and June 10th was a suitable date to use as
the beginning of the season. She stated that prior to receiving
the requests for rulings she had not met Fontaine but telephoned
him on March 8, 1999 to advise that she had been assigned all the
SRC files. On June 29, 1999, she telephoned Fontaine to inform
him that 4 former SRC workers had died. Fontaine replied that he
still wanted a ruling to be issued with respect to those persons.
She recalled that Fontaine attended at her office after all the
rulings had been issued to the workers, the employer and HRDC, to
collect some binders of material. Mah stated she never spoke to
Blakely about the SRC files nor did she have any contact with
Bernie Keays before or during the rulings process. Later, when
Keays was exercising his function as an Appeals Officer in
respect to rulings issued by her, Mah recalled receiving a call
from Keays concerning some points arising from his inability to
read her handwriting or with respect to a date and/or an amount.
Mah prepared a list in which she summarized her contacts with
various people during the rulings process, including searches at
Land Titles Office, corporate searches, information received from
ICBC and all the farms where SRC workers had been dispatched as
listed in Exhibit R-3, tab 79, pp. 62-68. Mah stated she obtained
information from several business entities described - for
convenience - as Purewal Farms, Dhillon Farms, Monga Farms,
Kliewer Farms, Khakh Farms, Bhullar Farms, Gill Farms, Lidhran
Farms, GM Farms, Min Ho Farms, and attempted to locate the
proprietor of Mike's Farm in Richmond. She obtained confirmation
of payments made by various growers to SRC and ascertained that
out of the total amount paid by Purewal Farms to SRC, only
$6,736.61 was attributable to the supply of labour and the
remainder was for the purchase of blueberries from Bant. Mah
received faxes of cancelled cheques issued by other farms and was
able to track payments to SRC. On some occasions, she recorded
information contained on picking cards, as relayed to her over
the telephone by a representative of a particular farming
business. Mah stated she spoke to a person at Gill Farms and
obtained information concerning the number of pails of
blueberries or flats of raspberries that one would expect to be
picked by an average worker in one day. She ascertained that Gill
Farms paid SRC $5.35 for every pail of blueberries and $4.35 for
each flat of raspberries picked by its workers. Gill Farms sent
Mah copies of picking cards. Mah stated she made notes - Exhibit
R-3, tab 79, p. 67 - of her conversation with Min Ho Ahn during
which he informed her that he had grown only zucchini and daikon
(lo bok) in 1996. Mah stated she spoke to Gurdaver Singh Hothi
who appeared to be an employee of Min Ho Farms and he told her
that no work had been done after October, 1996 because there was
frost on the ground. He also corroborated the statement of Min Ho
Ahn that the only crops grown on that farm in 1996 were zucchini
and daikon. Mah stated she did not retain any picking cards that
had been sent to her but if details from a card or several cards
had been recorded, that indicated she had reviewed the card(s) at
some point. Mah was referred to her Rulings Report - Exhibit
R-10, tab 81 - pertaining to Sharinder Singh Bagri. A cheque -
tab 91 - in the sum of $2,000 - payable to Bagri - had
cleared the SRC bank and according to the earnings statement -
tab 89 - a total of $1,404 in deductions for income tax,
UI/EI premiums and income tax had been retained by SRC. Mah
stated she added the sum of $1,404 to the proven amount paid -
$2,000 - in order to arrive at insurable earnings in the sum of
$3,404. Mah used the same formula - where applicable - for
rulings issued by her but conceded she should have only added the
amount for a deduction of income tax that was attributable to the
wages actually paid rather than basing it on the amount of the
alleged gross earnings shown in the statement. Mah stated she had
obtained technical assistance from the appropriate unit within
CCRA and had followed its advice to credit the worker with the
amount of CPP and UI/EI deductions and the deductions for income
tax because the worker should not be penalized because the
employer had failed to remit them, as required by law.
[293] The witness - Janet Mah - was cross-examined by
Darshen Narang. Mah stated the rulings issued by her with respect
to SRC workers were the first ones in her career requiring
consideration of whether certain employments were an outright
sham and/or if others were tainted by suspicious records and/or
other fraudulent documentation. Generally, she issued rulings
with respect to one or two workers and the issues usually
concerned the number of weeks of employment, the status of the
worker as an employee as opposed to an independent contractor, or
the amount of insurable earnings. Mah confirmed that once she had
been assigned the SRC files in February, 1999, she worked
exclusively on them until the last batch of rulings was issued to
the relevant parties. Files arrived on her desk in batches and
she processed them accordingly and sent out rulings. Mah stated
she had no contact with MFU. Mah stated that when a request for a
ruling is received from an ICO, there may be a recommendation
therein but she exercises an independent function when arriving
at a decision concerning the insurability of employment of a
worker. In her experience, many requests for a ruling are
submitted by a worker or an employer directly without any
intervention by HRDC. Mah stated that in those submissions, there
is often a recommendation - akin to a prayer for relief in
pleadings - that she issue a ruling to accord with said request.
Mah stated she has encountered other situations where the
employer has disappeared and she was forced to review whatever
facts she could gather and examine available documentation in
order to arrive at the best decision possible under the
circumstances. Mah confirmed that all the rulings - whether 96 or
98 - were done by her on an individual basis. She was referred to
Exhibit R-3, tab 79, p. 1 - the document prepared by Blakely
regarding possible rulings scenarios - and stated it may have
been provided to her but could not recall having seen it. Until
notified by her supervisor, Mah was not aware the SRC files would
be assigned to her. She stated that once she began reviewing the
material, it became apparent that many of the employment
scenarios were suspicious and she was aware that some purported
workers - who had been issued ROEs by SRC - admitted subsequently
they had never been so employed. Mah pointed out that any
decision made by her is independent of any position previously
taken by HRDC although she reviewed material including notes of
interviews by ICOs in order to arrive at a decision with respect
to a particular matter at issue. If a worker - such as Taro Kaur
Bassi - stated during an interview or when providing answers
within a Questionnaire that she picked strawberries during the
first day of work then Mah chose the starting date of strawberry
season - as obtained from the agricultural expert, Sweeney - to
represent the commencement of that person's employment with SRC.
Mah admitted she had not pursued the discrepancy with respect to
Bassi by attempting to reconcile the answer provided by Bassi
that she started work on May 19, 1996 and had dug up potatoes.
She added that - usually - when two versions or more were
presented by the worker she would inquire which scenario the
worker wanted to adopt as correctly describing the employment.
Mah stated that if she initiated a telephone call and discovered
the individual responding did not speak sufficient English, she
would ask Harby Rai to take over the call and speak to the person
in Punjabi, sometimes posing questions written by Mah - in
English - on a piece of paper. Often, a son or daughter of a
worker would return Mah's telephone call and speak to her about
their family member's employment with SRC. Mah stated she relied
on the specific advice received from Mark Sweeney about the start
of the strawberry season but for raspberries, blueberries and
certain vegetables, she referred to a document issued by the
British Columbia Ministry of Agriculture in which the probable
harvest dates were listed. Mah stated her understanding for the
omission of strawberries within that information sheet is that
the start of this season is subject to greater variation than
other berries which ripen later in the summer when weather is
more consistent. Mah agreed that without a paper trail, it is
difficult for a worker to verify that he or she received some
cash payments. There were no SRC records capable of
substantiating payments of cash to workers and they did not -
usually - provide any receipts nor any bank statements to
indicate any cash had been deposited into an account. Mah agreed
that even though the 3 cheques issued to Ravjit Gill had
cleared the SRC bank account, she was not satisfied he had worked
for SRC. Mah summarized her rulings - Exhibit R-3, tab 79,
p. 26 - in which she noted that she accepted 7 ROEs - out of a
total of 98 - as accurate. Some workers had been issued more than
one ROE. Mah stated she was satisfied the dates of
employment for the SRC drivers - as stated in her rulings - were
accurate and could be used as a reference when comparing these
periods with information provided by workers as to the identity
of their drivers. Mah reviewed the summary of account
transactions - Exhibit R-1, tab 28, p. 1 - prepared by Fontaine
and relied on that information for her own purposes, as required.
As agreed earlier, she contacted Fontaine every two weeks to
inform him of the progress made in terms of the rulings already
issued or about to be issued. Mah stated she reviewed information
- in SRC records - indicating Min Ho Ahn paid $8 per hour for
each worker. Mah agreed it appeared as though Min Ho Ahn was
issuing cheques to other persons at a time when he maintained he
did not have enough money to pay SRC the balance of the money
owed but did not pursue that avenue of inquiry. Mah stated that
she was confronted with a mass of contradictions arising from one
or more interviews by an ICO at HRDC and/or answers provided to
her in the Questionnaire. Depending on circumstances, she stated
she attempted to resolve these inconsistencies - on her own -
without relying on any other person at CCRA except those
specialists providing technical advice.
[294] Counsel for the respondent advised the Court that
despite numerous efforts to locate Min Ho Ahn, his current
whereabouts are unknown. The former property leased by Ahn has
been sold and the telephone number on file for Ahn is no longer
in service. Further, a corporate and personal property search
yielded no results and Ahn has not filed an income tax return
since 1995. A search of Telus revealed no listing for Min Ho Ahn.
Counsel informed the Court of efforts to locate
Mike Vaupotic, proprietor of Mike's Farm. The corporation
operating that business was dissolved on February 28, 1998. The
only contact with Vaupotic was through delivery - by someone - of
an envelope containing delivery slips and a note from M.
Vaupotic. Details of the receipt of the envelope were set forth
in Exhibit R-46, a memorandum from Alan Scott to Michel Fontaine.
Counsel advised that she contacted the British Columbia Marketing
Commission and spoke to the General Manager who stated he was
aware that Mike Vaupotic operated a farm under the trade name M
& N Farms and had dealt with him over the years but
understood the land had been sold. No income tax return was filed
for Vaupotic since the 1997 taxation year. Counsel stated that
further data base searches provided information which led her to
believe Vaupotic had died on October 5, 2002.
[295] Counsel for the respondent informed the Court the
respondent's case was closed.
[296] Darshen Narang, agent for the first-named group of
appellants in the within style of cause, stated he was not
presenting any rebuttal evidence.
[297] As noted earlier, none of the other appellants -
whether represented by an agent or self-represented - appeared in
Court to present any further evidence.
[298] Darshen Narang advised the Court that he preferred
to reserve any arguments and submissions until he had received a
copy of the written submissions from counsel for the
respondent.
[299] Prior to adjourning the cases pending receipt of
written submissions, I indicated to counsel for the respondent
that it seemed there was a middle position between that taken by
Janet Mah when issuing her rulings and the one adhered to by
Bernie Keays - Appeals Officer - in arriving at his
recommendations to the Minister. My point was that Keays conceded
the relevant legislation deemed the employer to have paid EI/UI
premiums and/or CPP contributions whether those remittances had
been sent in, as required. The position of the respondent
throughout was that there was a link between the workers and the
employer's decision not to deduct income tax and that - somehow -
they should bear joint responsibility for this omission on the
part of SRC either as willing participants or through a liberal
application of the doctrine of willful blindness.
[300] The written submissions of counsel for the
respondent contained a concession that where the Minister was
satisfied - or proven later to the satisfaction of this Court -
that an appellant had been paid a certain amount capable of
constituting insurable earnings this amount should be "grossed
up" to reflect the amount of EI/UI premiums and CPP contributions
deemed to have been paid by the employer on behalf of a
particular worker together with the relevant amount of income tax
that should have been deducted - at source, and remitted by SRC -
on the wages paid. Counsel further advised that the respondent
was prepared to adopt the method of calculation I suggested at
the close of proceedings in Court which was to utilize a formula
based on the same ratio as that applicable to the amount of gross
earnings as alleged in the relevant pay statement or earnings
record. In other words, if the pay statement issued by Bains Tax
on behalf of SRC alleged that a worker earned $7,000 and income
tax deductions were $600, then if an appellant was unable to
prove that he or she had been paid more than $3,500, the Minister
was willing to accept that the proper amount of income tax would
be 50% of $600 - or $300 - in order to adhere to the same
percentage applicable to the larger amount. As discussed in
Court, there may be some inaccuracy in employing this method but
it would be small because all - or nearly all - of the appellants
in the within appeals would not be paying income tax on any
income subject to a higher marginal rate and any slight impact on
any refundable tax credits and/or other allowances linked to
income by various provisions of the Income Tax Act would
probably be miniscule and in any event, the period for
reassessment by the Minister for purposes of income tax has
passed. As a result, counsel for the respondent prepared a chart
of the amounts the Minister was willing to concede could be added
to the amounts proven to have been paid in order to augment the
amount of insurable earnings. That chart forms part of the
respondent's written submissions and is located in Respondent's
Submissions, vol. 2 at tab 28. Any exception to this general
policy - with respect to a particular appellant - has been
otherwise addressed in the submissions of the respondent and will
be referred to in the course of the analysis of the evidence
applicable to that person.
[301] The position of the respondent is that the
documents created by or on behalf of SRC - such as the ROEs,
payroll records, T4 slips, or the "I Cash Money Give" cheques -
are not reliable nor are they capable of proving what they
purport. Counsel submitted that the evidence adduced at trial
established that several SRC employees had admitted their ROE was
false because they had never worked for SRC. Other SRC workers
admitted to HRDC - or since - that they had not worked for the
period shown on their ROE or had not earned the amount indicated
therein and some workers admitted they had worked for no wages at
all but only to receive their ROE, often referred to as a "weeks
paper". The position of the respondent is that the evidence
adduced established that the records are unreliable in many
respects including details of days and hours worked and amount of
wages paid. Counsel referred to several Statutory Declarations
signed by SRC workers - including some by appellants
in the within proceedings - in which it was admitted that an ROE
was false in some material aspects. As for the purported cheques,
counsel submitted they are totally worthless and incapable of
proving any aspect of any appellant's case for a variety of
reasons. First, many workers - including some appellants in the
within appeals - stated they had never seen these so-called
cheques prior to being referred to them during HRDC interviews or
at Discovery or in Court. Second, the accounting of revenue
earned by SRC during 1996 established SRC was incapable of paying
out the wages as purported by the various documents such as the
payroll records and/or "I Cash Money Give" purported cheques. SRC
records indicated it paid out gross wages of $795,358.00 whereas
the total deposit to its only bank account was $414,466.95. The
net amount of the payroll - after source deductions - should have
been $658,632.00 but the records indicated less than 50% of this
sum had been paid by cheques negotiated in a financial
institution and - therefore - SRC purported to have paid the
remaining balance of wages - $342,400 - in cash to the
workers. The respondent submits there is no evidence that
SRC operated any bank account than the one at the TD at 49th
Avenue and Fraser Street in Vancouver and the statements on that
account do not support the proposition that Rana made any cash
withdrawals from said account in order to pay wages to workers.
Although SRC had revenue from sales of blueberries, the
respondent submits not only was there no evidence adduced to
support the theory that cash was received but the testimony of
Michel Fontaine confirmed that all of the funds received by SRC
from Purewal Farms for blueberry sales were deposited into SRC's
corporate account at the TD bank. Counsel's submissions also
dealt with the issue whether the workers were paid by weight for
picking berries as opposed to the hourly rate - during the entire
period of employment - as shown on the payroll records. The
respondent submitted the SRC payroll records are not reliable
because many of them reported the employee worked exactly 112
hours every two-week pay period or 56 hours every one-week pay
period throughout their entire employment with SRC, an assertion
not borne out by the testimony of several SRC workers as well as
other evidence in relation to payment practices within the
farming industry. The respondent submitted the evidence of
workers and farm owners demonstrated that the number of hours
worked by berry pickers may change from day to day due to the
state of the crops - in terms of maturity or whether it is
plentiful or sparse - and weather conditions. As a result of many
factors disclosed by the evidence adduced in Court, the
respondent takes the position it is clear the only method of
remuneration used to compensate the appellants for their
berry-picking work was on a piecework basis according to rates
which varied depending on the type of berry. Even when working on
the vegetable farms late in the season, the respondent submitted
the hours of work would not have been so consistent and some
appellants testified they worked less hours per day or fewer days
per week because SRC was utilizing a rotation system to spread
the work among several people due to an overall shortage of
work.
[302] Counsel submitted argument in respect of the issue
arising from the negotiation of SRC cheques at SRC's TD bank or
even when either cashed at - or deposited in - a financial
institution in which an appellant maintained an account. There
was a reference to the testimony of Amarjit Kaur Grewal who
stated she was taken by Harbhajan Singh Kang - together with
other workers - to the TD bank where she cashed a $4,000 SRC
cheque and returned to Rana's house where she was required to
return the sum of $4,000 to SRC in order to obtain her ROE. She
testified other SRC workers were present at the bank and also
returned to Rana's house in the van driven by Harbhajan Singh
Kang. Counsel pointed out that Kang denied being present when any
money was returned and did not recall driving Grewal back home
nor whether he took other workers to the TD bank on other days
prior to departing for India on October 28, 1996. Counsel pointed
out that Gurmail Singh Cheema and Jaswinder Kaur Cheema - both of
whom lived in Surrey - each cashed two cheques at SRC's bank on
October 21 and October 23, 1996, respectively, and that Manjit
Rana was at the bank on both occasions. The cheques were numbered
in sequence and the respondent argued even when the evidence
indicated SRC cheques were negotiated at the TD bank and cash was
obtained in exchange, it still does not constitute reliable proof
that the employee retained those funds as payment of wages. In
respect of certain cheques negotiated at the employee's own
financial institution, counsel referred to the admission by
Bakhshish Kaur Thandi in the presence of her daughter - Maninder
- during an HRDC interview that although the $5,000 cheque issued
by SRC to her husband - Gian Singh Thandi - was
deposited into their personal account, the sum of $4,000 was
withdrawn shortly thereafter and repaid to SRC. The position of
the respondent is that even when cheques were shown to have been
deposited into the personal account of an employee, there was
evidence - in many cases - to support the view that a portion or
- in some cases - all of the money had been returned to someone
at SRC so as to render the alleged employment a sham.
[303] Counsel made submissions with respect to the
standard method of payment to berry pickers within the industry
and referred to the testimony of four farm owners who hired SRC
pickers in 1996 and paid SRC by the weight for the strawberries,
raspberries and blueberries picked. The revenue earned by SRC
from supplying pickers to these 4 farms constituted a significant
proportion of the total amount earned by SRC. When SRC sold its
own blueberries to Purewal Farms, in order to earn $70,000 of the
total revenue of more than $77,000 received from that entity, the
price was based on weight. Payment to SRC by Gill Farms, Monga
Farms, Khakh Farms and by Kliewers and other growers were always
based on weight of berries picked and these deposits represent
more than 50% of SRC's total revenue. The respondent's position
is that the larger farmers such as Gill Farms and
Khakh Farms could reasonably be expected to pay pickers in
accordance with the prevailing practice in the farming industry
and if they paid by the weight it is fair to conclude that the
smaller growers used the same method to compensate their pickers.
Counsel referred to the testimony of several appellants and to
statements made by others during HRDC interviews or when
responding to Questionnaires that they had been paid by the
weight when picking berries for SRC and that they thought all
other workers were paid the same way. The evidence of Mark
Sweeney - expert agriculturalist - was that the industry standard
is for contractors to provide berry pickers in return for payment
by weight and that provincial labour legislation established a
minimum piecework for picking certain types of berries, including
strawberries, raspberries and blueberries. The respondent relied
on the existence of picking cards and submitted the only
reasonable inference to be drawn is that this method is used on
berry farms to facilitate payment by weight from the farmer to
the labour contractor. Each picking card has three copies, one
for the farmer, one for the contractor and one for the worker.
Most cards are labeled accordingly so the proper copy can be
retained by the relevant party. The system requires a new picking
card to be issued each day and the name of the worker is written
on the card along with the date. That information appears on all
three copies of the card. The evidence established that workers
do not share a picking card unless they are related; otherwise,
the amount of berries picked by each worker is weighed and the
picking card is punched to record the weight of berries picked by
that person on that day. Counsel referred to the abundant
evidence that each card is separated at the end of the day so the
farmer, contractor and picker can retain the appropriate copy.
Later, the farm owners paid the contractor by calculating the
total weight picked based on the information gathered from the
picking cards of each and every worker. Some SRC workers provided
information that they retained their copies of picking cards
until the end of the season so there could be a settlement of
final wages owed based on those cards. The position taken by the
respondent is that it is obvious that the entity providing
workers to perform the labour-intensive berry picking can only be
compensated according to weight and that it - in turn - must pay
workers according to that same unit of measurement as to do
otherwise - such as an hourly rate - would result in a daily loss
in most instances. Counsel referred to an example as revealed by
an exchange during the hearing of the appeals in respect of a
scenario where the farmer compensated SRC at the rate of $4.35
per flat for 10 flats picked by a worker. At that rate, the
worker earned SRC the sum of $43.50 but if he or she worked 8
hours - or more - at $7 per hour, he or she would have earned $56
- or more - without taking into account holiday pay and the
amount of CPP contributions and the employer's share of EI/UI
premiums let alone the cost associated with WCB coverage or the
operational costs associated with running a business and
transporting that worker to and from the fields. Even if a picker
could produce 20 flats per day at $4.35 per flat, that gross
revenue paid to SRC would be only $87 and if the worker was paid
for even 8 hours at $7 per hour - $56 - that would not leave much
profit for the contractor considering that rate of production was
rare and limited to a few pickers during the height of the
season. Overall, the respondent submits it would not make sense
to spend time and money to follow a procedure involving the
systematic use of picking cards to record volumes of crop
harvested if the labour contractor was paid by the hour for each
worker supplied and it would not make any sense for that
contractor to pay the worker on a different basis for picking
those berries. Counsel referred to the testimony of Didar Singh
Mehat where he explained he did not make any decent money picking
berries because he was paid on a piecework basis and only earned
a reasonable amount per day when he was working on the vegetable
farms and was rewarded for his efforts by receiving an hourly
wage from SRC. Counsel referred to the British Columbia
Employment Standards Act, RS Chap. 113 and to the
Employment Standards Regulations both enacted on November
1, 1995. Generally, the minimum wage was fixed at $7 per hour -
throughout 1996 - except for farm workers which was governed by
section 18 of the Regulations permitting a minimum wage to
be paid to those workers who were employed on a piecework basis
and hand harvested raspberries, strawberries and blueberries. An
Order-in-Council came into effect on February 14,
1996 which increased the piecework rates for those berries so
that the new rates applied - on a per-pound basis - as follows:
raspberries - $.275; strawberries - $.265; blueberries - $.305.
On August 1, 1996 another Order-in-Council came into force which
provided that those farm workers hand harvesting fruit and berry
crops could be compensated differently than other workers for
working on statutory holidays or for vacation pay if their
payment on a piece-rate basis was calculated by multiplying the
applicable piece rate by 1.076. Therefore, the respondent's
position is that any piecework payment could be increased by that
factor in lieu of paying statutory holiday pay and vacation pay
on the usual basis otherwise applicable to non-farm workers.
[304] Counsel submitted that the definitions of
insurable earnings under the Act and/or pursuant to
certain Regulations - which I will refer to later in these
reasons - dictate that any appellant who was not engaged in
insurable employment with SRC during the relevant period cannot
have any insurable earnings because any amounts received must be
paid to the recipient by that person's employer in respect of an
employment. Counsel also submitted that none of the appellants
was able to have any unpaid wages considered as insurable
earnings because there is a prerequisite that an employee file a
complaint with a federal or provincial labour authority in
respect of such amounts pursuant to subsections 2(1) and 2(2) of
the Insurable Earnings and Collection of Premiums
Regulations, enacted pursuant to the Act. Counsel
pointed out there was no evidence that any complaint had been
filed by any appellant with the result that any wages remaining
unpaid - by SRC - could not be considered as insurable
earnings.
[305] Counsel dealt with the issue of transitional
provisions as a result of the Act coming into force -
generally - on June 30, 1996 but also providing for certain
provisions to take effect only on January 1, 1997. These
transitional and interim provisions provided the transition from
the former regime under the Unemployment Insurance Act
pursuant to which insurable employment was measured in weeks, to
the revised method under the new Act where it was
calculated on the basis of every hour worked without reference to
any minimum threshold. Counsel prepared a chart - Respondent's
Book of Submissions, vol. 2, tab 29 - that indicates whether each
appellant's decision will be governed by the new hours regime
under the Act or pursuant to the former provisions.
Counsel submitted the evidence before the Court established that
24 appellants are governed by the former regime under the
Unemployment Insurance Act and only Harbans Kaur Kang and
Inderjit Singh Atwal are subject to the regime of hours as
created by the new Act. Kang did not begin receiving UI
benefits - in respect of her employment with SRC - until 1997
although it had been performed - completely - within 1996.
Therefore, the "beginning of benefit period" as defined by the
Act required her benefits to be calculated on the basis of
the new legislation. Atwal alleged he had been employed by SRC
until January 11, 1997 and was covered by the new regime. Even in
the case of those two appellants, counsel advised the Minister is
able to translate the effect of my decision - as it applies to
them - in order to conform with the hours regime in the
Act by utilizing the relevant legislative provisions
designed for that purpose.
[306] There are numerous other submissions on various
points contained in the material prepared by counsel for the
respondent and they will be referred to later in these reasons
when relevant to a discussion of a particular subject matter or
the employment of a specific appellant.
[307] Darshen Narang, agent for the first-named group of
appellants in the within style of cause, filed two binders of
submissions containing arguments with respect to the evidence
applicable to appellants as individuals. In a general sense, he
submitted it was not as clear as counsel for the respondent would
have the Court believe, that SRC had not charged an hourly rate
for the services of its labourers. Narang submitted that the
testimony of Guprem Singh Monga and the documentary evidence
pertaining to the relationship between Monga Farms and SRC
disclosed that Monga Farms had two types of records, once
calculated by the piece and the other based on an hourly rate
paid in respect of the total hours of labour supplied by SRC.
Narang submitted that if one were to examine the Schedule of
Picking Cards - Exhibit R-66 - the total number of days worked -
211 - by all the named workers - if calculated at 8 hours per day
- amounted to 1,688 hours. If those workers received $7 per hour,
the total labour bill to SRC for their efforts would be in the
sum of $11,816. However, Monga Farms paid SRC the sum of $16,480
plus GST, thereby producing a profit of $4,664 from this
customer. Narang submitted that if one were to look at the
Schedule of Pick Cards - Exhibit R-64 - pertaining to the work
done by SRC workers at Gill Farms, it would reveal that a total
of 647 person-days labour had been supplied at 8 hours per
day for a total of 5,176 hours. If these workers were paid
$7 per hour, the total payroll for that work would be in the sum
of $36,232. However, Gill Farms paid SRC the sum of $40,395.06 -
including $2,642.67 in GST - which would have produced a gross
profit of $1,520.39 from this source (The figure used -
incorrectly in Narang's submission - was $40,895.06 so I have
corrected it in the course of outlining his submission on this
point).
[308] Further submissions by Narang were - generally -
in respect of specific appellants and will be referred to in due
course.
[309] Prior to embarking on an analysis - case-by-case -
of the evidence as it pertains to the fact situation specific to
the determination of an issue or issues pertaining to an
individual appellant, there are some matters I can deal with at
this point that apply to all parties. The proceedings were based
on the principle that common evidence would be applied - where
relevant - to all appellants regardless of the manner by which it
had been adduced. Therefore, I wish to deal with the following
subject matters, as follows:
"I Cash Money Give" Purported Cheques:
[310] It is difficult to fathom what the purpose of
these documents was or when they were created and by whom. There
is no consistency to the stories advanced by various appellants
as to whether a signature appearing on the bottom line was made
by them or not and some stated they had never seen that so-called
cheque until it was presented to them during an interview or at
Discovery or during their testimony in Court. These ersatz
"cheques" may have been designed to fulfil the function of a
receipt but even that purpose was not borne out by the testimony
- in general - of appellants nor by any other evidence,
documentary or otherwise. These pieces of paper were not signed
by Ranjit Mana, the sole signing authority on the SRC bank
account. The evidence adduced before me plainly established that
in some instances the amounts written on the purported cheque
exceeded the net wages shown on the payroll statement, as in the
case of Bakhshish Kaur Thandi. Because there was such a great
disparity between the amount of the alleged payroll of SRC in
1996 and the amount of funds deposited to the TD bank account, it
is reasonable to assume that those persons intimately involved in
the operation of SRC during the summer of 1996 created these
pieces of paper in order to reduce that shortfall by making it
appear as though large amounts of cash had been paid to several
workers as payment of wages.
Whether unpaid wages can be included in the calculation of
insurable earnings:
[311] Section 2 of the Insurable Earnings and
Collection of Premiums Regulations made under the Act
reads as follows:
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Earnings from Insurable Employment
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2. (1) For the purposes of the definition
"insurable earnings" in subsection 2(1) of the Act and for
the purposes of these Regulations, the total amount of
earnings that an insured person has from insurable
employment is
(a) the total of all amounts, whether wholly or
partly pecuniary, received or enjoyed by the insured person
that are paid to the person by the person's employer in
respect of that employment, and
(b) the amount of any gratuities that the insured
person is required to declare to the person's employer
under provincial legislation.
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(2) For the purposes of this Part, the total amount of
earnings that an insured person has from insurable
employment includes the portion of any amount of such
earnings that remains unpaid because of the employer's
bankruptcy, receivership, impending receivership or
non-payment of remuneration for which the person has filed
a complaint with the federal or provincial labour
authorities, except for any unpaid amount that is in
respect of overtime or that would have been paid by reason
of termination of the employment.
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[312] No appellant established that he or she had ever
filed any complaint - with either the federal or provincial
authorities - concerning any unpaid wages - as required, in order
to preserve the capacity for any unpaid balance to be regarded as
insurable earnings. Further, there was no evidence that even if
there were any unpaid wages - as alleged by some appellants -
this non-payment of remuneration was due to the employer's
bankruptcy or receivership. It was Manjit Rana who filed for
bankruptcy, not SRC - the corporation -who was the undisputed
employer of all appellants in the within proceedings. Probably,
Rana as the sole Director of SRC, was contemplating personal
liability arising from that role when he filed for bankruptcy and
listed liabilities such as amounts owing to Revenue Canada for
income tax and GST as well as a potential debt to WCB for
assessments in respect of employees. Therefore, even if there was
credible evidence that SRC owed wages to an appellant at the end
of his or her employment, that amount cannot be considered for
inclusion when calculating insurable earnings.
Employment dates of 5 SRC drivers as established by CCRA
rulings which were not appealed:
[313] Counsel for the respondent submitted that the
start and end dates of the following drivers - as set forth in
Exhibit R-69 - could be accepted as conclusive proof that they
had worked only within that period - not before nor after -
because none of them had appealed the particular decision issued
by Janet Mah. The relevant dates for the named drivers are:
Harjit Singh Gill - May 5 to October 5, 1996
Surinder (Shindo) Kaur Suran - May 12 to October 26, 1996
Bhan Singh (Master) Sidhu - May 26 to October 12, 1996
Harbhajan (Bhajan) Singh Kang - June 21 to October 19,
1996
Balwinder (Binder) Singh Chahal - July 1 to November 16,
1996
[314] In my view, the lack of appeal by any of these
individuals is cogent, although not irrefutable, proof that those
dates are reliable insofar as they affect only those individuals
because they have all accepted the accuracy of those periods of
employment as set forth in the decision of Janet Mah that was
issued to each of them, personally. Those dates are important to
the respondent because they act as barriers to prevent appellants
from demonstrating they were driven by a certain driver either
before or after those fixed dates. On the basis of those rulings
and in conjunction with other relevant evidence, including the
testimony of Fontaine - and/other ICOs - I am
satisfied those dates are accurate and have properly defined the
period of employment for each of those persons except Shindo
Suran. I am prepared to leave the question open for the time
being as to whether she continued to drive SRC workers to the
vegetable farms in Richmond even though she had supposedly been
laid off once she had accumulated enough weeks to qualify for
UI benefits. Similarly, I will decide later whether
Gurbachan Singh Gill was employed as a driver by SRC for the
period alleged or at all. However, considering all the evidence
before me, I find that Manjit Rana did not drive any workers to
or from their employment with SRC in 1996.
Were SRC pickers paid on a piecework basis or by the hour
when picking strawberries, raspberries and blueberries?
[315] The evidence is overwhelming that remuneration
paid to SRC by the growers was always based on a unit of
measurement such as a flat or the pound whether the flat was used
to contain strawberries or raspberries or a pail or other
container was used for blueberries. The testimony of Guprem Singh
Monga, Sukhdev Khakh, Peter Kliewer, Elizabeth Kliewer and
Monhinder Singh Gill was uncontradicted that payment was made to
SRC on the basis of weight or flats of berries picked by its
workers. Monga testified that he acceded to the request - from
Bant - that the payment by Monga Farms to SRC be calculated on a
sheet - Exhibit R-57 - in order to arrive at a total which would
conform with the amount paid - $16,480 plus $1,153.60 GST - for a
total of $17,633.60 of which the sum of $4,000 had been the
subject of an advance payment. Monga testified that he instructed
his brother - Balwinder - to prepare the sheet in
accordance with the wishes of Bant. The submission of Darshen
Narang is that one can calculate the person-days from various
sets of picking cards and then make the assumption that each
person worked exactly 8 hours per day. There is no evidence to
substantiate the work day was that consistent and the payroll
statements which purport to show each appellant worked exactly
112 hours every two-week pay period are unreliable in that sense.
Simply put, that regularity does not conform with the reality of
picking berries which is dependent on the state of the crop and
weather conditions. There was evidence that workers were taken to
different farms on the same day and the evidence was consistent
that they were not compensated for any traveling time to and from
their homes and - probably - were not paid when being transported
from one farm to another because during that hiatus SRC was not
generating any income as a result of their presence in the van or
bus. It is clear on the evidence that growers paid SRC on the
basis of weight of berries picked. Gurmail Singh Gill, Didar
Singh Mehat, Prabhjot Kaur Minhas and Amarjit Kaur Grewal all
testified they were paid by weight or by the flat of berries
picked and not by the hour. The denial by many appellants either
during their HRDC interviews or when completing Questionnaires
that they had used picking cards does not accord with the facts
as disclosed by the evidence of many credible witnesses including
Mark Sweeney, agricultural expert and berry specialist, who
stated pickers are paid by piecework within the industry. Even if
a labour contractor started out with the intention of never
remitting any source deductions for the workers, it would appear
to be foolhardy to base payment to workers on a minimum hourly
wage rather than on actual production as recorded on picking
cards. It is not possible to accept that SRC was paid on a
piecework basis for the berries harvested by its employees but
remunerated those same pickers on the basis they had worked
exactly 8 hours every day, 7 days every week at $7 per hour. The
evidence established that picking cards were used to record berry
production by each worker. Obviously, there is a good reason for
utilizing that system since it facilitates payment by weight from
the grower to the contractor and then from the contractor to the
picker based on the information contained on that card. The cards
were in triplicate and there was a copy designated for the
grower, the labour contractor and the picker, the
three parties to the arrangement. The cards had the names of
the workers written on them and a new card was issued every day
barring a few exceptions due to lapse of memory by either the
worker - the previous night - in forgetting to hand in the card
or by the person handing out the new cards in the morning. It is
not reasonable that growers would undertake the process of
recording - on picking cards - the weight and/or number of full
and partially-filled flats and/or pails of berries and thereafter
depend on that information to calculate payment to a labour
contractor based on the volume of berries picked at the
applicable rate for a specific type of berry. There were too many
inconsistencies in the testimony of those appellants who
attempted to assert they had always been paid by the hour for
picking berries rather than in accordance with the normal,
industry-wide practice of paying by the weight. Although the
flats used to hold the berries are counted when handed in by
pickers, the contents are weighed because some flats shipped to
certain buyers weigh less than normal in order to conform with
the specifications of those customers. It is clear that it was
not important to Monga Farms whether the payment to SRC was
structured - later - in terms of hours in order to accommodate
Bant who wanted - for his own purposes - some document from a
farmer in which there was a calculation of labour services based
on an hourly rate. That does not change the reality of the basis
for the payment already made to SRC by Monga Farms. Like all
other growers referred to in these appeals, Monga Farms
remunerated SRC on the basis of weight and/or the number of flats
and/or pails of berries picked by its workers, as recorded on the
picking cards. As Guprem Monga testified, he created the invoice
- Exhibit R-3, p. 101 - on behalf of Bant. In that document,
Monga calculated the amount owing in respect of raspberries and
blueberries according to the same rate of 40 cents per pound.
Since there had been 120 hours of labour performed by SRC workers
- billed out at $8 per hour - in relation to tasks other than
picking berries, the amount of $960 was added to the picking
costs and the period during which that labour had been supplied
was identified on the invoice as between "April-August 1996".
Monga stated it was not important for his own business purposes
to identify precisely when that labour commenced or ended since
he had recorded the total hours - 120 - performed by SRC workers
within that time frame. However, he stated it was probable the
first SRC workers would not have been on his farm until May.
Again, Monga testified that while workdays are usually 8 hours in
duration, during berry-picking season they can last up to 10
hours. Because payment was made to SRC on the basis of weight or
number of flats, Monga did not concern himself with matters such
as lunch breaks or rest periods and in the course of his
testimony specifically differentiated between that scenario and
the one where he is paying workers by the hour in which case he
determines the breaks during the day.
The matter of administrative penalties imposed with respect
to the calculation of overpayment of UI benefits:
[316] In his written submissions, Darshen Narang
referred to the imposition of administrative penalties under the
Act and noted the amounts appeared to vary from zero - in
the case of Harbhajan Singh Kang - to 65.75% when applied
to the overpayment to Gurcharan Kaur Johal which was only
calculated to be in the sum of $640. At the same time, HRDC
decided Didar Singh Mehat had been overpaid UI benefits in the
sum of $6,180 but the penalty imposed amounted to only 12.6% of
that amount. Penalties for other appellants ranged from 26.5% to
55.5%, a rate imposed on overpayments to Ravjit Gill and Gian
Singh Thandi. Narang's position is that there does not seem to be
any logical explanation for those variations and that they appear
to be unjust - for the most part - unless one were to accept
there was a vast conspiracy - in 1996 - between these
workers and SRC to defraud the UI/EI system.
[317] I do not have jurisdiction to deal with this
matter. When a ruling on insurability is requested pursuant to
subsection 90(1) of the Act, the assigned Rulings Officer
- in accordance with the terms of said provision - is authorized
to issue a ruling in respect of the following questions:
(1) An employer, an employee, a person claiming to be an
employer or an employee or the Commission may request an officer
of the Canada Customs and Revenue Agency authorized by the
Minister to make a ruling on any of the following questions:
(a) whether an employment is insurable;
(b) how long an insurable employment lasts, including
the dates on which it begins and ends;
(c) what is the amount of any insurable earnings;
(d) how many hours an insured person has had in
insurable employment;
(e) whether a premium is payable;
(f) what is the amount of a premium payable;
(g) who is the employer of an insured person;
(h) whether employers are associated employers; and
(i) what amount shall be refunded under
subsections 96)4) to (10).
[318] Once the ruling has been issued, any person
affected by it can appeal to the Minister within 90 days. The
Minister exercises jurisdiction in accordance with section 93 of
the Act and issues a decision to the affected persons.
Thereafter, an appeal can be launched to the Tax Court of Canada
pursuant to the provisions of section 103 of the Act and
the Court - in accordance with paragraph 103(3)(a) "may
vacate, confirm or vary a decision on an appeal under section 91
or an assessment that is the subject of an appeal under section
92". Any appeals from the imposition of administrative penalties
imposed under the Act or pursuant to Regulations
made under said Act, must follow a different path which
involves the Board of Referees and - thereafter - an Umpire. Even
if the matter is finally dealt with by a court with respect to
issues perhaps involving the Charter of Rights and
Freedoms or issues of natural justice or whether a decision
has been made in accordance with principles expressed in the
jurisprudence applicable to administrative tribunals, those
concerns will be addressed by the Federal Court of Canada and not
by this Court.
Adverse inference where appellants fail to call the payer
as witness:
[319] The written submissions of counsel for the
respondent contained a plea that this Court draw an adverse
inference against the appellants because they failed to call the
payer - whether represented by Rana, Bant, Shindo or any
combination of that trio - because the dates of employment and
amount of wages received were at issue. Counsel referred to the
decision of Margeson, T.C.J. in the case of MacIntyre v.
Canada (Minister of National Revenue - M.N.R.), [1998]
T.C.J. No. 181. At paragraph 418 of the decision, Judge
Margeson stated:
The Court draws an unfavourable inference against each and
every one of the Appellants here because of their failure to call
the Payor. He was available, he sat outside the Court room for
several days. There was no explanation offered for his failure to
testify except that his evidence would have been unfavourable to
each of the appellants.
[320] In the within appeals, I will not draw that
adverse inference as the circumstances are totally different. It
appears as though Rana, Bant and Shindo have disappeared. Perhaps
they are not in Canada. A considerable amount of effort was
expended by Fontaine and other ICOs in attempting to locate these
individuals subsequent to the initial interview with each of
them. Janet Mah - Rulings Officer - and Bernie Keays - Appeals
Officer - received no response to their letters and notices. I
accept the statement by Darshen Narang that he attempted to
locate Manjit Rana and Bant Suran and Shindo Suran but was unable
to do so. HRDC officials questioned several appellants about the
whereabouts of these individuals and did not receive any reliable
information that would permit them to be located. Fontaine
visited one or more residences in Vancouver and left messages
and/or formal notices directed to Rana's attention but he was
never seen again by Fontaine or any other employee of HRDC since
that sole interview at the end of May, 1997. I take judicial
notice that the Internet provides ample opportunity to find
someone and that telephone directories are accessible on-line
together with thousands and thousands of other registries and
banks of information. At various stages of the proceedings before
me, discussions were held concerning the potential for one or
more of the SRC trio to be called by one party or other as a
witness. The response was always the same: there was no
information about where they were residing.
[321] After reviewing the testimony of all the witnesses
and having ruled on certain issues common to all appellants, I am
prepared to decide these appeals one by one. First, I will deal
with the appeals of those appellants represented by
Darshen Narang. In each instance, I will state the decision
of the Minister and - where applicable - any
subsequent concessions by counsel. Next, I will summarize the
submissions of the agent for the particular appellant and/or the
position advanced by an appellant on his or her own behalf and
then decide the appeal. Due to the nature of concessions by the
Minister with respect to grossing up insurable earnings by adding
in the prorated amount of deductions with respect to UI/EI
premiums, CPP contributions and the relevant amount of income
tax, adjustments will be required in those instances and in any
other case where I determine the decision of the Minister must be
varied to find insurable earnings are greater than the sum stated
in the decision of the Minister. The formal wording of any
variance of the Minister's decision issued to an appellant will
be drafted at the end of these reasons but the result will be
apparent at the end of each segment of these reasons that pertain
to an individual appellant.
VARINDER KAUR KANG:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-23
MINISTER'S DECISION:
[322] The Minister decided Kang was not employed in
insurable employment with SRC from October 6 to December 28,
1996.
APPELLANT'S POSITION:
[323] The appellant maintains she was so employed and
had insurable earnings in the sum of $4,410.
SUBMISSIONS:
[324] The appellant's agent - Darshen Narang - submitted
that Kang gave descriptive answers to questions concerning her
duties, the rate and amount of her pay and provided accurate
details concerning her work as well as the identity of
co-workers and arrangements she made for the care of her
children in order to permit her to continue her employment.
[325] Counsel for the respondent submitted Kang was
unable to adduce credible evidence to support her claim that she
had been employed by SRC during the relevant period. Counsel
pointed out that Kang - at her first HRDC interview on May 26,
1997 - stated her only driver was Bhan Singh Sidhu, whom she
called Master. However, Master's last day of employment was
October 12, 1996. Counsel referred to a statement by Kang - to
ICO Janice Morrow - that the same driver - Master - had taken her
to work in December. Counsel conceded that Kang in her testimony
before this Court, had explained that she meant to say Master had
"mostly" driven her to work until the middle of November and that
Shindo Suran and Bant Suran had also driven her in a van and/or
small car and that Shindo had taken her to work on December 28,
1996, her last day of employment. Counsel pointed out this answer
contradicted the one given to Morrow at the HRDC interview
because Kang said at that time that she always rode to work in a
van and this answer was repeated in the rulings Questionnaire
which was filled out by Kang in her own handwriting after
receiving assistance from her husband. Regarding the nature of
duties allegedly performed by Kang, counsel submitted the
testimony of Kang was not credible for several reasons. First,
she was the only SRC worker to state she had been given the task
of "sorting" blueberries during her first week of work in
October. Second, the overwhelming evidence provided by the
growers, most SRC workers as well as the expert opinion of Mark
Sweeney, supported the conclusion that the blueberry harvest was
finished by mid-September. Third, counsel pointed out that Kang's
description of subsequent tasks allegedly performed during
November and December such as tying raspberry bushes in
Abbotsford or harvesting of vegetables was either vague or
contrary to common sense because the severe weather impacted on
any remaining vegetable harvest and the evidence of Sweeney was
that the only vegetable able to be harvested after the end of
October would be Brussels sprouts. Counsel submitted there were
numerous other inconsistencies affecting the overall credibility
of this appellant and that she had not discharged the burden of
proving her employment was genuine.
ANALYSIS:
[326] Prior to her alleged employment with SRC, Varinder
Kaur Kang had been working at a nursery and then at a chocolate
factory. However, her advanced pregnancy caused her to be laid
off and she intended to apply for EI maternity benefits but
realized she might be one week short of the period needed to
qualify. Kang testified she heard SRC was looking for workers and
was hired by Bant and/or Shindo whom she considered to be owners
of the labour contracting business. Kang's child was born at the
end of August, 1996 and her mother - Balvir Kaur
Malvi - cared for the newborn for a week in September and other
family members cared for an older child. It is clear that Kang,
during the HRDC interview - tab 96 - in describing her first day
of work stated she was driven by Master in a brown van. During
her testimony, Kang stated she had also been driven by Bant and
Shindo and that she had ridden - sometimes - in a cream-coloured
van as well as in a small, red 5-passenger car. Kang was certain
Shindo had driven her to work on December 28, 1996, the last day
of her employment. Kang described her work in November as
"pulling vegetables from the ground", washing them before placing
them in a container. At the beginning of December, Kang stated
her duties included tying raspberry bushes for a brief
period and - following surgery on December 3 - after
returning to work, she washed and packed - as opposed to picked -
vegetables, until laid off on December 28. During
cross-examination, Kang confirmed she had never picked any
berries during her employment with SRC even though she had stated
in an interview that she was a "blueberry picker and vegetable
person". Kang conceded that answer was wrong and stated she had
given that response because "someone" had instructed her to
provide that reply. During the interview with Morrow - tab 96 -
Kang stated she had picked strawberries, raspberries and
blueberries but had worked - mostly - with vegetables. Kang's
explanation for that answer was that she was attempting to
describe the sort of work performed by SRC workers other than
herself. Other than through her testimony, Kang was unable to
prove she had been paid any wages. She testified she received a
cheque - in the sum of $1,500 - that had been written on a
personal bank account of Bant and/or Shindo at the 49th Avenue
and Fraser Street TD bank where she cashed that cheque and
another SRC cheque - for approximately the same amount - issued
to her later. Kang explained she relied on her husband's advice
to cash those cheques at this TD bank rather than deposit them
into their own joint account in order to avoid the risk of any
bank charges if the cheques turned out to be NSF. Kang stated she
received the sum of $900 in cash when obtaining her ROE from
Shindo on or about January 2, 1997. Following receipt of that
payment, Kang stated she was satisfied she had received all wages
due to her and that the total payment of $3,900 had been properly
calculated to conform with her hourly rate of $7, after
deductions. Concerning cash advances during the course of her
employment, Kang testified they were part payments of wages owed
to her mother - Balvir Kaur Malhi - and that when she referred
- during HRDC interviews - to receiving cash, she
intended to convey that information within the context of her
reply. During the interview on May 26, 1997 - tab 96 - Kang had
not mentioned cashing any SRC cheques at the TD bank but had
described depositing cheques at Canada Trust. During
cross-examination, Kang explained that she thought Janice Morrow
had been asking where she "usually" did her banking and -
therefore - told her it was Canada Trust. She also mentioned a
joint savings account at the Bank of Montreal. Later in the same
interview, Morrow recorded Kang's response that she "got 5 or 6
cheques and cashed them all at the employer's bank." Kang
conceded - during cross-examination - that this answer was not
correct even though she had repeated it when signing the
Statutory Declaration at tab 98. Kang also explained the receipt
- tab 89 - in the sum of $2,000 - that appeared to have been
issued by SRC and signed by her - was connected to a repayment of
a loan made by SRC to her in-laws in order to permit them to
travel to India. According to Kang's explanation to Morrow, the
intent had been that this sum would be deducted from her wages
but when it turned out she was paid in full, it was necessary to
return the $2,000 sum to SRC and she repaid it on behalf of her
in-laws because they were still in India. In Court, Kang agreed
she had given that explanation to Morrow but stated she had
returned soon afterwards in order to correct that false
impression and told a female Punjabi-speaking employee in the
front office that no money had been returned to SRC.
[327] The burden is on the appellant to establish on a
balance of probabilities that she was employed under a contract
of service with SRC during the period alleged or at all. The
testimony of Kang is riddled with inconsistencies. It should not
be a complicated process to speak the truth whether during
interviews with HRDC officials or when testifying in Court. When
one looks at the total evidence adduced on behalf of this
appellant, it does not fit with facts otherwise established
during the course of receiving evidence common to all appellants
in the within appeals. The description of her work does not jibe
with reality when viewed in the context of the season and the
weather conditions. She was certain Master was her driver but
upon learning he had been laid off on October 12, 1996 - shortly
after she alleged her work started - she realized she needed to
name other drivers who could have continued taking her to work
until December 28, 1996. Necessity is truly the mother of
invention and each time Kang found herself in a jam, she produced
another version of events that she hoped would be more saleable.
Unfortunately for her, I am not buying those explanations. The
persistent lack of consistency beginning with answers provided to
Morrow and as provided - later - in Questionnaires, when
considered in the context of her testimony, leads me to conclude
she is not a credible witness. One does not seek perfection when
considering these matters, particularly when dealing with events
that have taken place years earlier but the most recent
statements by someone should - ordinarily - be the most reliable
because they are the freshest. Kang's interview on May 26, 1997,
only 5 months after she was supposed to have finished working for
SRC, should have been the most accurate. However, each time I
looked for some independent support for yet another version of
events proffered by Kang, it was not there. Where the evidence of
Kang conflicts with that of Morrow with respect to the accuracy
of an answer or any event occurring within the context of an
interview, I reject Kang's testimony and accept Morrow's
version.
CONCLUSION:
[328] Having regard to all the relevant evidence, I find
the appellant has not discharged the burden of proof necessary
for me to conclude that the decision of the Minister was
incorrect. As a result, the decision of the Minister is
confirmed. Even if I had been able to find there was a certain
period of insurable employment, the appellant was not able to
prove she had been paid for her work and I would have been unable
to find any insurable earnings.
VARINDER KAUR JASSAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-19
MINISTER'S DECISION:
[329] The Minister decided Varinder Kaur Kassal was
employed in insurable employment for 16 weeks from May 12 to
October 26, 1996 and had insurable earnings in the sum of $7,000.
Counsel for the respondent conceded that ordinarily the insurable
earnings should be increased by the amount of deductions
attributable to those earnings in accordance with the chart in
Respondent's Book of Submissions, vol. 2, tab 28 (Chart).
However, counsel submitted the increase in insurable earnings
should be limited in this particular instance to the additional
amount of $861 - for a total of $7,861 - because that sum was the
total amount of insurable earnings reported in her ROE based on
her last 20 weeks of employment.
APPELLANT'S POSITION:
[330] Varinder Kaur Jassal asserted she was employed
from April 21 to November 16, 1996 and is entitled to have
her insurable earnings calculated on the basis of her pay
statement - tab 89 - which shows gross earnings in the sum of
$8,645 and net earnings in the sum of $7,861.
SUBMISSIONS:
[331] Darshen Narang - agent for the appellant -
submitted the Minister had accepted that Jassal was employed
during those dates which conformed with the periods of employment
established by the Minister for those drivers identified by her
as having transported her to and from work. However, Narang
submitted it was not reasonable to fix the end date of her
employment merely by referring to the alleged last day of work -
October 26 - of Surinder (Shindo) Suran since she acted
throughout as a principal of SRC and it is reasonable to assume
she continued driving workers to the vegetable farms after she
was supposedly laid off in her capacity as employee. Narang
pointed out the dates of employment claimed by Jassal conformed
with the evidence of Mark Sweeney, the agricultural expert, in
that planting of certain crops is undertaken in April and most
vegetables can be harvested until mid-November - even in 1996 -
because the severe arctic outflow arrived later that month.
[332] Counsel for the respondent submitted there is no
basis upon which I should allow any increase to the amount of
insurable earnings already conceded on behalf of the Minister. As
I have already found, any remuneration for picking berries was
not based on the hourly rate of $7 - as alleged by Jassal - but
on the basis of piecework depending on the type of berry picked.
In any event, counsel submitted the appellant's insurable
earnings should be limited to $7,960.86, an amount based on the
sum of $7,000 - proven to have been paid to her in the form of
two cheques - together with the extra amount of $960.86
attributable to the pro-rated UI/EI, CPP and income tax
source deductions. Counsel pointed out that during her HRDC
interview Jassal had not mentioned receiving any cash nor when
completing the Questionnaire at the rulings stage and only
brought up that subject when submitting the Questionnaire to
Bernie Keays during the appeals process and during her direct
examination when she stated she had been paid the sum of $459 in
cash upon settling up with SRC and receiving her ROE. Counsel
submitted the information received from Min Ho Ahn, proprietor of
Min Ho Farms, as related to Janet Mah during a telephone
conversation, should be accepted when he stated SRC did not
supply any workers to his farm until July 1, 1996. Counsel relied
on the expert opinion of Mark Sweeney that potatoes were not
ready for harvesting until June 20, 1996.
ANALYSIS:
[333] The difference between the parties at this stage
is not great. The issue is whether the appellant has proven to my
satisfaction that she started work on April 21 and worked
until November 16, 1996 and that she was paid another $459 in
cash upon receiving her ROE so her net earnings match the amount
shown on her pay statement. Jassal stated in her direct
examination that she had a clear recollection of receiving that
sum of money in her hand at the settling up meeting at Rana's
house on November 16. She stated she returned 3 days later to
pick up her ROE. Jassal testified she was driven - by Shindo - on
April 21 to a farm in Richmond where she planted seeds, by hand.
She described riding in a van with 5 to 7 other workers and
stated that after two weeks of planting, she was taken to Mike's
Farm - also in Richmond - where she harvested potatoes until she
started working thereafter at Khakh Farms in Abbotsford, which
was not disputed by the Minister. Jassal conceded during
cross-examination - by Selena Sit - that at Discovery she
informed Shindo she needed 26 weeks of work in order to qualify
for UI benefits. Although the appellant had stated in the
Questionnaire - returned to Keays - that no picking cards were
ever used, she admitted that was not correct. During her
testimony she described how the cards were handed out in the
morning and collected by the drivers at the end of the day. She
stated she did not retain any of her copies of the cards because
she was paid by the hour. Jassal stated Binder Chahal had
driven her to work on November 16, her last day. However, when
completing the Questionnaire - tab 85 - she had identified only
Harjit Gill and Shindo as her drivers, stating Gill drove the
yellow bus and Shindo drove the van. There was no reference to
Bant nor Chahal. During her testimony, Jassal explained away
those inconsistencies as well as the contradictions arising from
her statements during the HRDC interview, by stating she had not
understood the purpose of said interview and her answers -
therefore - may not have been accurate. Varinder Kaur Jassal
is well-educated and can speak, read and write English at a level
sufficient for her to have understood the import of the questions
- particularly as interpreted - in Punjabi - by her
husband - and should have been able to provide consistent and
reliable information about her employment during the relevant
period. There was no independent record to corroborate her hours
of work and during late October, until her alleged layoff on
November 16, it is not reasonable to accept that she worked
exactly 8 hours every day, 7 days a week because the work at that
time of year would not have been that demanding. Other SRC
workers testified they worked on an informal rotation basis
whereby they worked a few days and then had some time off until
notified they were going to be picked up one morning to be
taken to a farm. I am not relying on the information provided by
Min Ho Ahn to Janet Mah that he did not hire any SRC workers
until July 1, as that is hearsay and was not tested during
cross-examination. For various reasons, I consider this statement
is not particularly reliable due to the apparent state of
confusion in many respects of his business operation as disclosed
by his rambling interview with Michel Fontaine when he was unable
to recall ordinary details and could not produce records which
had apparently been kept by his wife who had since left the
matrimonial home. Further, I am not basing my decision solely on
the alleged start date of Shindo as disclosed by her ROE. It is
possible that she drove Jassal to work on April 21 even though
her first day of employment is shown as May 12. It is also
possible that Chahal drove Jassal to work on her last day of
employment, November 16. However, it is not probable when viewed
in the context of all the evidence relevant to the determination
of this issue, including previous statements by Jassal not only
during interviews or when completing Questionnaires but also
during her testimony in Court. I find it extremely doubtful that
Jassal received the exact sum of $459 during the settling up
meeting at Rana's house and consider it likely the receipt of
this precise amount was invented by her following disclosure of
documents - including her pay statement - in order to conform
with the amount shown therein. As admitted by Jassal at
Discovery, she was looking for 26 weeks of employment in order to
qualify for UI benefits in the late fall of 1996. I find that she
attempted to stretch the facts attributable to her legitimate
period of employment so as to create an extra phantom period to
cover the shortfall between 20 weeks - the period of employment
recognized by the Minister - and her target of 26 weeks.
CONCLUSION:
[334] The appellant has failed to demonstrate on a
balance of probabilities that she is entitled to any further
relief. The decision of the Minister establishing the dates of
her insurable employment is confirmed. However, as conceded by
counsel, her insurable earnings will be increased by $861 and the
corrected total amount is $7,861.
HARBANS KAUR KANG:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-22
MINISTER'S DECISION:
[335] Counsel for the respondent conceded Harbans Kaur
Kang was employed in insurable employment from June 23 to October
19, 1996 and that her insurable earnings were $6,877 based on the
net wage of $6,071 shown on her pay statement together with the
pro-rated amounts - attributable to source deductions - totalling
$805.72, as shown on the Chart, referred to earlier.
APPELLANT'S POSITION:
[336] The appellant claimed she started work on June 16,
1996 and that her insurable earnings were in the sum of $7,000,
representing the amount of her gross earnings as shown on her pay
statement. She relied on the proven fact she was paid a total of
$6,879 by two cheques that were negotiated at the SRC bank.
SUBMISSIONS:
[337] Narang submitted the evidence established the
appellant's husband - Harbhajan Singh Kang - had
worked as a driver for SRC on an unpaid training basis - as
declared unilaterally by Bant - prior to his official start date
of June 21, 1996, as decided by the Minister. Because, the
appellant testified she and her husband started within a day or
two of each other, she could have been working on June 16 as
stated on her ROE, particularly because she described riding to
work with Master during her first week and thereafter with her
husband who drove her to work until they were both laid off on
October 19, 1996.
[338] Counsel for the respondent submitted it was clear
from all the evidence that the appellant started work before her
husband. Since June 21, 1996 was the date established by the
Minister - and never changed through any subsequent process - as
the first day of her husband's employment, counsel submitted it
was reasonable to decide that her employment started two days
later on June 23. Counsel referred to the testimony of the
appellant which conformed to that finding in that she was certain
her husband began working one or two days earlier. Counsel
submitted that even though the pay statements produced by Bains
Tax for SRC were generally unreliable when they purported to show
exactly the same hours of work per pay period and attempted to
show payments to workers were based on an hourly rate, the net
earnings shown thereon could serve as a ceiling for the insurable
earnings for the appellant. As a result, counsel submitted the
appellant was not entitled to any amount in excess of that
conceded by the Minister.
ANALYSIS:
[339] I appreciate there was some confusion concerning
the start date for the appellant's husband - Harbhajan Singh Kang
- because he had worked some days where Bant had ridden with him
which were classified as unpaid training days but there are no
grounds for varying the decision of the Minister as it pertains
to the dates of employment. At various times, the appellant
stated different times for the commencement of her employment and
at one point thought her husband had started working two months
after her start date. However, that error can be traced to the
erroneous dates inserted in Harbhajan Singh Kang's original ROE
which were considered to be correct until the Minister was
convinced otherwise as the matter progressed. There is no solid
evidence on which I can find that Harbans Kaur Kang started
working on June 16, 1996, instead of June 23, as decided by the
Minister. The choice of June 23, 1996 is reasonable under the
circumstances.
[340] As indicated earlier, I reject the notion that
Harbans Kaur Kang was paid by the hour for picking berries. There
is no doubt the appellant received a total of $6,879 in the form
of cheques which cleared the SRC bank account. Her net pay
- according to the pay statement which she accepted as
accurate - was only $6,071 and her gross earnings were shown as
$7,000. The explanation offered concerning the apparent
overpayment lurched from the sublime to the ridiculous. One
version was that Bant was drunk when he calculated the final
amount of wages due to her at the end of the season. Kang stated
Bant due - presumably - to sober second thought called her
husband to advise he was aware of the overpayment and wanted the
excess returned to him. At Discovery, the appellant was clear
that the overpayment was in the sum of $800 and that it had been
returned to him. When testifying in the within appeals, Harbans
Kaur Kang stated the extra payment was only $89 because she had
been owed $800 in wages at the end of the season and she and/or
her husband had not paid any money back to anyone at SRC. Until
her husband finally disclosed that SRC had paid her wages to him
and that the cheques - payable to her - had been deposited
into their joint account, the appellant was convinced she had
never been paid for her work. During an interview with Bowerman,
she complained to him that her wages remained outstanding.
Whether or not the extra $879 was repaid to Bant, it is clear
this money was paid in error and, as a matter of law, money paid
through mistake of fact is recoverable by the payer. In any
event, the definition of insurable earnings - set forth earlier
in these reasons - does not include an amount paid in error
because it has to be paid to a person by that person's employer
"in respect of that employment." The employer's pay statement
indicates the most money the appellant could have earned was
$7,000 and a net payment of $6,879 was obviously too much, taking
into account the usual deductions. The only reliable method of
calculating the insurable earnings of the appellant is the one
suggested by counsel for the Minister in accordance with the
concession referred to at the beginning of this part as it
pertained to Harbans Kaur Purewal.
CONCLUSION:
[341] The appellant is not entitled to any further
relief in addition to the concessions of the Minister, as noted
herein.
JASWINDER SINGH BASSI:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-11
MINISTER'S DECISION:
[342] The Minister decided the appellant was not
employed in insurable employment with SRC during any period from
May 19 to December 28, 1996. As a result, his insurable earnings
were nil.
APPELLANT'S POSITION:
[343] The appellant asserted he was employed from May 19
to July 14 and again from November 30 to December 28, within the
relevant period and had insurable earnings in the sum of
$4,557.
SUBMISSIONS:
[344] Narang submitted the appellant received a cheque
in the sum of $3,000 which had been deposited to his account and
had received additional sums in cash to account for the balance
of gross earnings. Narang submitted Bassi's testimony regarding
his earnings was confirmed by a T4 issued to him - which was used
to file his income tax return - together with his ROE and
information contained in the payroll statement.
[345] Counsel for the respondent submitted the
appellant's testimony was not credible and that he failed to
establish he had worked for SRC, as alleged. Counsel submitted
Bassi's testimony was not believable when he stated he started
weeding at a farm in Chiliwack and that after two weeks he picked
strawberries for three weeks before picking raspberries
until he left his job with SRC on July 14. As for Bassi's claim
that he returned to SRC and performed tasks on vegetable farms
during the month of December, counsel submitted the evidence -
overall - did not support that contention as there was no work to
be done at that time considering the usual end to the vegetable
season let alone the exceptionally harsh weather conditions in
1996. Counsel referred to the evidence of Mohinder Singh Gill
- representing Gill Farms - that there was no
strawberry crop on their farm in 1996. In addition, counsel
submitted the appellant's description - in Court - of the work
performed directly contradicted statements made by him during his
initial HRDC interview.
ANALYSIS:
[346] Jaswinder Singh Bassi testified Shindo drove him
to work on his first day - May 14 - as well as on his
last day, December 28. He lived in a basement suite in his
parents' home in Vancouver and his mother - Taro Kaur Bassi - is
a co-appellant in the within appeals. He maintained he was
paid an hourly rate of $7 for picking berries even though he used
picking cards to record the weight and/or volume picked. I do not
accept that he - like any other SRC worker - would have been paid
on any basis other than piecework as explained earlier in these
reasons. Counsel for the respondent submitted Bassi had testified
that he weeded around strawberry plants at Gill Farms when the
evidence disclosed no strawberries were grown by that business in
1996. However, my view of Bassi's testimony is that he was taken
- by Shindo - to "a farm in Chiliwack" where he did weeding for
two weeks. However, Bassi stated he picked strawberries for
two weeks at that farm - beginning about June 14 - and then
picked raspberries. It is apparent that any picking of
strawberries was not done at Gill Farms and the schedule of
picking cards - Exhibit R-64 - does not include Bassi as a worker
although his mother - with whom he said he worked - is
recorded as having picked raspberries and/or blueberries at
various times between July 9 and August 10, 1996. He testified he
did not share a flat or a picking card with any other worker. At
his HRDC interview, Bassi stated he started work on May 19 when
he planted cauliflower for 3 days before starting to pick
strawberries. As for working on the Min Ho vegetable Farm, Bassi
stated Shindo was always his van driver and despite being
informed by counsel that the Minister had information potatoes
were not grown there in 1996, insisted he had worked on potatoes
as well as carrots, turnips and radishes and did not accept that
the vegetable season had ended prior to him starting work on
November 30. He maintained that he worked 7 days a week for the
first two weeks in December and then may have taken off one
day. He testified he washed vegetables - outside - using a hose
attached to a tap. With respect to payment of wages in the form
of a $3,000 cheque, Bassi offered up different versions
surrounding that receipt. He told Michel Fontaine during an
interview - tab 94 - on December 5, 1997 that he had
not deposited a cheque in the sum of $4,000 - contrary to what he
told Fontaine during an earlier interview - but had received a
cheque in the sum of $4,040 of which he had taken out $1,040 in
cash and deposited the rest. He produced a bank statement - tab
100 - confirming a deposit of $3,000 on January 10, 1997. There
was an entry indicating a withdrawal of $3,300 on January 14,
1997, which Bassi stated was made in order to repay his sister
who had loaned him money to travel to India in October, 1996,
even though he had more than $13,000 in his account at that time.
Bassi explained he had been busy shopping for his trip and did
not have time to attend at his own bank in order to withdraw
travel funds. Bassi agreed he had been aware that he needed 18
weeks of employment to qualify for UI benefits. There are no
records to corroborate Bassi's testimony concerning the hours
worked and it is difficult to accept he made up the time missed
due to medical appointments by staying behind to pick berries
when all other SRC workers had left the farm for the day.
[347] With respect to the issue of payment, there is no
cancelled SRC cheque to support the appellant's contention that
he was paid the sum of $4,040 or any other amount for his work.
On one occasion, Bassi told the HRDC investigator that he had not
received any cash and had received only one cheque - in the sum
of $4,000 - at the end of his employment which was deposited
- entirely - into his own bank account. He stated he received the
cheque together with his ROE when Shindo dropped them off at his
house. During his cross-examination, Bassi denied giving those
answers to Fontaine. In responding to the Questionnaire sent by
Keays, Bassi stated he had been paid the sum of $4,000 by cheque
and $50 in cash. In his testimony, he stated he had received a
cheque in the sum of $3,000 and a total of $1,050 in cash which
had been paid to him in small amounts from time to time during
the course of his employment. As for contradictions in his
statements to Fontaine, Bassi blamed the quality of the
interpretation provided by Kal Tarlal.
CONCLUSION:
[348] I do not accept Bassi's contention that he was
employed by SRC as alleged or at all. His version of events does
not conform with reality. He could not have been picking
strawberries prior to the end of the first week in June. Although
he could not identify specifically the farm - in Chiliwack -
where he was working, he testified he worked with his mother -
after riding to work with her - and her evidence was that she
worked at Gill Farms weeding around strawberry plants. Therefore,
it is safe to assume Jaswinder Singh Bassi was referring to Gill
Farms when describing the same kind of work, beginning on May 19,
the same day his mother alleged she began working at SRC. If the
appellant picked berries with his mother, why are there no
picking cards in his name? He described the process whereby
his picking card was punched - at the scale - in order to record
the full flat of berries. Bassi denied he told the HRDC
interviewer that he was paid by the flat for picking strawberries
and raspberries and that when he left SRC on July 14 to work for
Kalair Farms he had been owed wages which were not collected
until the end of December after he had finished his second stint
at SRC. When responding to the Questionnaire - tab 111 - Bassi
blamed his brother - whom he admitted was fluent in English - for
having written incorrect answers to questions even though his
brother had not worked for SRC and would not know details of
working conditions unless the information had been provided by
the appellant. Bassi agreed with the proposition that except for
his own testimony, there was no other proof he had received wages
by cheque - in the sum of $3,000 - in addition to $1,050 in cash.
He stated he maintained a record of cash payments but lost it
when he moved to Surrey at the end of 1997. Where one or more
versions of events related by Bassi conflict with one or more
scenarios described by Fontaine concerning the circumstances of
an interview and the answers recorded, I prefer the testimony of
Fontaine. In order to accept Bassi's story that he was working 8
hours a day, 7 days a week - during December - washing
vegetables on the Min Ho Farms - which sold its last produce on
November 24 - or that any other farm in Richmond still required
him to wash vegetables as late as December 28, it would have
required me - recently - to have fallen off the back of a turnip
truck. That event did not occur and I do not accept the evidence
of Bassi that he was employed - at all - by SRC during the
relevant period. Even if I had been able to find he was employed
for some period, I would not have been able to conclude that he
had any insurable earnings as defined by the relevant provisions
of the Regulations made pursuant to the Act. The
decision of the Minister is confirmed.
TARO KAUR BASSI:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-12
MINISTER'S DECISION:
[349] The Minister decided the appellant had been
engaged in insurable employment with SRC for 7 weeks from June 10
to July 27, 1996 and had insurable earnings in the sum of $3,000.
Counsel conceded the appellant's insurable earnings should be
increased by the applicable pro-rated amount of $413.07
attributable to source deductions, thereby increasing said
earnings to $3,413.07.
APPELLANT'S POSITION:
[350] The appellant claimed she worked from May 19 to
July 27, 1996 and accumulated insurable earnings in the sum of
$3,920 as stated on her ROE at tab 88.
SUBMISSIONS:
[351] Narang submitted the appellant had demonstrated
she was engaged in insurable employment during the relevant
period and had been paid for her work.
[352] Counsel for the respondent submitted the
credibility of the appellant was severely affected by her
insistence that she was remunerated on an hourly basis even
though she used picking cards every day when picking strawberries
and raspberries. Counsel referred to the appellant's testimony
concerning the method of receiving the cards at the start of each
day and handing them back to the driver at night. When responding
to the Questionnaire - tab 97 - the appellant denied using
picking cards and that statement was reinforced by her answers at
Discovery. Concerning the calculation of insurable earnings,
counsel pointed out the Minister had allowed earnings based on
the payment to the appellant of the sum of $3,000 which was the
only amount proven to have been paid to her by SRC.
ANALYSIS:
[353] Taro Kaur Bassi testified she received the $3,000
cheque - tab 90 - dated July 6, 1996 and negotiated it on
December 5, 1996. She stated she started working for SRC near the
middle of the 5th month and her first day was spent weeding
around strawberry plants at a farm in Abbotsford operated by Gill
Farms. She described working 7 days per week at this task for
about 3 weeks but also worked - planting cauliflower -
at a farm in Richmond. Shindo was her only driver throughout the
course of her employment which lasted until July 27. She could
not recall whether her son - Jaswinder Singh Bassi - had ridden
to work with her on the first day but recalled riding with him on
other occasions. Taro Kaur Bassi stated she was not paid on a
bi-weekly basis and had to ask Shindo for money and that one day
- in June - Shindo paid her $500 in cash. Taro Kaur Bassi left
SRC to work for Kalair Farms but was not paid for her SRC work
until December when she went to Shindo's house to collect her
cheque and the ROE. She was aware she needed 18 weeks of
employment in order to qualify for UI benefits. When responding
to the Questionnaire - tab 97 - she stated she had received the
sum of $380 in cash - from Rana - in addition to the $3,000
cheque. She clarified that response by explaining that she knew
Rana, Bant and Shindo all lived in the same house so considered
there was no real difference between them in operating the SRC
labour contracting business. She agreed if she had received
$3,500 when her pay statement - tab 89 - showed she was entitled
to only $3,380, then she must have been overpaid.
[354] The main issue in this appeal is whether it has
been proven by the appellant that she started work on May 19.
During her testimony, she provided contradictory answers ranging
from her description of weeding around strawberries her first day
to planting cauliflower on a farm in Richmond. At Discovery - on
June 19, 2001 - she could not recall - initially - the work done
on her first day but a subsequent series of questions elicited
answers that indicated her first task was picking strawberries.
During cross-examination, the appellant rejected those answers
and stated they were obviously incorrect because - as an
experienced farm worker - she was well aware strawberries were
not ready to pick on May 19. The appellant maintained her answers
- at Discovery - must have been recorded incorrectly by the
reporter, including those responses where she denied having used
picking cards at any time. During her direct examination, the
appellant described picking potatoes at a Richmond farm but this
period seemed to occupy the same time frame as the one during
which she alleges she weeded around strawberry plants at Gill
Farms. In the opinion of Mark Sweeney, as contained in his report
- Exhibit R-41 - potatoes in the Richmond area would not have
been ready for harvesting until June 20, 1996. Sweeney also
testified that strawberries were ready - generally - for picking
by June 15th and added it was possible that some farms could have
begun harvesting by June 9th or 10th. However, due to the weather
conditions earlier that year, he considered it was highly
unlikely that any strawberries were ripe before June 2.
[355] The appellant is illiterate in both Punjabi and
English. However, at each stage of the lengthy process whether
completing the application for UI benefits, attending at HRDC
interviews, responding to Questionnaires, giving answers at
Discovery or testifying in the within appeals, she had access to
qualified interpreters and translators who explained the import
of the questions to her by ensuring they were explained to her in
Punjabi. Her son attended an interview with her and Lakhwinder
Kalair assisted her to complete a Questionnaire that was returned
to Janet Mah. The Questionnaire - tab 97 - was completed on her
behalf by her younger son who could read and write English. With
regard to the various inconsistencies throughout the process, the
appellant stated, "the things I am telling you today, if you
asked me tomorrow, I would not remember."
CONCLUSION:
[356] Having regard to all the evidence applicable to
this particular appeal, I remain unconvinced that Taro Kaur Bassi
started working for SRC on May 19, 1996. There were no strawberry
plants to weed at Gill Farms and the potatoes in Richmond were
not ready for harvesting. She provided several versions of her
duties and then denied that she gave certain answers - at
Discovery - which indicated clearly she knew that she was being
asked about what task was performed on her first day of work. In
response, she stated that she picked strawberries. Probably, the
weeding story was invented to breach the gap when the appellant
became aware she had provided answers about picking berries
during a period when they were not ripe, a fact she should have
known based on her previous farm experience. The evidence of
Mohinder Singh Gill was that the only work done by SRC workers in
1996 - at Gill Farms - was picking raspberries and blueberries
and there was no strawberry crop there in 1996. Unless the
appellant lived within a parallel universe or had the ability to
slip through barriers of time, it is difficult to comprehend how
she could have been weeding around strawberry plants at
Gill Farms in May, 1996, unless it was on a volunteer basis
and she had brought her own plants. The testimony of Taro Kaur
Bassi is unreliable and where it conflicts with another witness
on a material point concerning statements made during an HRDC
interview or in respect of responses provided in a Questionnaire,
I reject Bassi's version.
[357] Obviously, the appellant did not work for SRC
between May 19 and June 9, 1996. Her only period of employment
was the one decided by the Minister and her insurable earnings -
pursuant to the grossing-up effect of the Minister's
concession - are in the sum of $3,413.07.
BAKHSHISH KAUR THANDI:
RELEVANT BOOK OF DOCUMENTS: EXHBIT R-29
MINISTER'S DECISION:
[358] The Minister decided the appellant was engaged in
insurable employment with SRC for 18 weeks during the period from
June 24 to October 26, 1996 and that her insurable earnings were
nil. Following a review of picking cards from various farms,
counsel for the respondent conceded the appellant had been
employed from June 9 to October 26, 1996, but the Minister
adhered to the previous decision that her insurable earnings were
nil.
APPELLANT'S POSITION:
[359] The appellant agreed the Minister had - finally -
decided on the correct period of employment but asserted she had
insurable earnings in the sum of $7,840.
SUBMISSIONS:
[360] Narang submitted that merely because Bakhshish
Kaur Thandi had been paid her wages in cash, a common practice
within the farming industry, she should not be denied her right
to be included in insurable employment based on insurable
earnings. He pointed out that her husband also worked for SRC and
had done all the banking and that she testified she had not
returned any part of her wages to anyone connected with operating
the SRC business.
[361] Counsel for the respondent submitted the payroll
statement in respect of Thandi is unreliable. It purports that
she had $7,840 in gross earnings and net pay of $6,764. Since the
records of SRC did not contain any cancelled cheques payable to
the appellant, the only piece of paper pertaining to Bakhshish
Kaur Thandi was a " I Cash Money Give" purported cheque in the
sum of $7,000 with the name "Bakagha K. Thaadi" inserted in the
payee space. Counsel submitted it was very clear from the notes
made by the ICO during an interview - where Kal Tarlal
interpreted the questions into Punjabi - that the appellant
stated she had worked for no pay but only for the " weeks" and
that her only compensation was to receive an ROE at the end of
the season.
ANALYSIS:
[362] The sole issue in the appeal of Bakhshish Kaur
Thandi is whether she had any insurable earnings in the course of
her employment with SRC. During the appellant's interview with
Michel Fontaine - tab 93 - she described an arrangement with SRC
whereby she received a cheque, cashed it and returned the money.
When the appellant's daughter joined the interview, and Fontaine
continued to inquire about the subject of payment, Bakhshish Kaur
Thandi stated she never questioned being required to return money
- from a cheque - to Shindo because that is what she had been
asked to do. She clearly understood the import of Fontaine's
questions whether she had received any payment of wages and
provided answers indicating she had been paid nothing and only
worked to receive an ROE which would entitle her to future UI
benefits. During the interview with Fontaine, the appellant was
shown one of those notorious "I Cash Money Give" purported
cheques, this one with the sum of $7,000 appearing thereon.
Fontaine pointed out to the appellant that her net pay was only
$6,764 and she agreed that SRC would "never pay out that amount
of money", referring to the excess payment if the payroll
information was correct. The bank statement of the account of the
appellant and her husband - Gian Singh Thandi -
indicated a $5,000 deposit on December 16, 1996, followed by a
withdrawal of $4,200 on December 24, 1996. The appellant's
daughter - Maninder Kaur Mangat - during the interview
told Fontaine that her mother and father lived with her and her
family in 1996 and that she was not aware either of any wages
having been paid to them for their work. She also told Fontaine
about Bant coming to their house and obtaining the sum of $4,000
cash. Maninder advised Fontaine that this same procedure had been
followed in 1995 when her parents had worked for Shindo and not
received any wages but only their ROEs at the end of the season.
The appellant testified she had not given those answers to
Fontaine and that the sum of $4,000 had been paid to Bant in
order to repay a loan. She denied that Maninder would have told
Fontaine that she had worked only for the "weeks" because the
work was very hard. Counsel referred the appellant to an
explanation given by her husband - Gian Singh Thandi - at
Discovery about having returned the sum of $4,000 to Bant because
it was an overpayment due to a mistake by Bant who had been both
drunk and angry when making out a cheque for $5,000 at the end of
the season. Bakhshish Kaur Thandi maintained her position that
the payment to Bant was to discharge an outstanding loan. The
appellant - during re-examination by her agent - testified
she and her husband had decided not to tell Maninder and her
husband about receiving cheques from SRC - in payment of their
wages - and that any information provided by Maninder to Fontaine
was incorrect because, after all "what does a little girl know."
In order to hide the fact they were really being paid by SRC for
their work, the appellant stated she and her husband thought an
appropriate stratagem would be to tell her that they were only
"working for the weeks."
CONCLUSION:
[363] The truth of the matter was revealed by the
appellant and confirmed by her daughter during the interview with
Fontaine. I find that she worked for the "weeks" and received
only the ROE in return. The story about returning money to Bant
which had been loaned at some point is not credible. She only
started work for SRC in June and on July 20, 1996, there was a
balance of over $13,000 in the joint account of her and her
husband. The sum of $10,000 was transferred to a son living in
England but thereafter the balance was always more than $3,700.
It is clear that the appellant understood Fontaine's questions -
as interpreted by Kal Tarlal and/or Maninder Mangat, her own
daughter - and that she expressed clearly what she wanted to say
at that time, namely that she was not paid and worked just to
receive the magic piece of paper that would produce UI benefits
throughout the winter and spring. The appellant's explanation for
numerous inconsistencies concerning a wide variety of topics
ranging from her method of payment to details of alleged payment
of wages was that she was illiterate. The appellant has not
provided any credible evidence upon which I could find - on a
balance of probabilities - that the Minister was wrong when
deciding that although she was employed during the relevant
period, she had not been paid and - therefore -
had no insurable earnings, as defined in the legislation.
[364] The decision of the Minister will be varied only
to take into account the concession concerning the start date -
June 9, 1996 - of the appellant's employment.
GIAN SINGH THANDI:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-30
MINISTER'S DECISION:
[365] The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks during the period from
June 24 to October 26, 1996, and had insurable earnings in the
sum of $5,000. Counsel conceded the start date should be June 9,
1996, but did not revise the amount of insurable earnings.
APPELLANT'S POSITION:
[366] The appellant agrees with the decision of the
Minister regarding the period of employment but claims he had
insurable earnings in the sum of $7,840 as shown on his pay
statement at tab 88.
SUBMISSIONS:
[367] Narang submitted that the appellant had received
cash for his own wages and for his wife - Bakhshish Kaur Thandi -
in addition to the $5,000 cheque that had been accepted by the
Minister on the basis it had cleared the SRC bank account. Narang
also pointed out that as the matter unfolded in Court, it was
apparent Gian Singh Thandi handled all money matters and
chose not to disclose to his daughter and son-in-law that SRC had
been paying wages to them during their employment.
[368] Counsel for the respondent submitted that
subsequent revelations during the course of this litigation
established the Minister should not have decided
Gian Singh Thandi had insurable earnings in the sum of
$5,000 - based on the cheque that cleared the SRC bank account -
because the sum of $4,000 had been returned to Bant in pursuance
of a scheme similar to the one entered into with Shindo in 1995.
Counsel advised that if I decided the appellant was entitled to
insurable earnings - based on the payment of the $5,000 cheque -
those earnings should be grossed up by the sum of $686.11 in
accordance with the calculations set forth on the Chart.
ANALYSIS:
[369] Since there is no dispute over the period of
employment or the fact the appellant was employed by SRC,
the only issue concerns the proper amount of his insurable
earnings.
[370] Gian Singh Thandi testified that the salary for
him and his wife was based on $7 per hour. The $5,000 cheque -
dated September 15, 1996 - was not deposited into the Thandi
joint account at VanCity until December 16, 6 weeks after his
layoff. He disavowed the statements made by his daughter -
Maninder - to Fontaine during the interview with Bakhshish Kaur
Thandi and stated that both he and his wife had been paid in full
by SRC for their work. Thandi stated he did not have any dealings
with Rana and all cash payments were made by Bant and/or Shindo,
following a request because he and his wife needed money for
their household. He recalled receiving some money in June - on
two occasions - but could not remember the amounts. None of this
money was deposited into the VanCity account. The appellant
testified that money was received from time to time and at the
end of the season he considered SRC owed him approximately $1,000
in wages. However, when Bant wrote out the cheque - tab 89 - it
was in the sum of $5,000 and Bant merely told him to "take it."
According to the appellant, about 5 or 6 days later, Bant
telephoned to advise there had been a mistake and the excess
money had to be returned. Gian Singh Thandi testified he had
deposited the $5,000 cheque into the VanCity account and -
personally - returned the sum of $4,000 by walking over to Bant's
house and handing him the money. The appellant denied the
repayment had been made at his daughter's residence (the Mangat
household) where he and his wife lived or that the return of the
money to Bant had any connection with any loan. He stated that he
was the one responsible for money matters and he knew what had
taken place. He recanted his answers - given at Discovery - that
the ROEs for him and his wife were delivered to the Mangat
residence by Bant and stated the correct version is that he
obtained those ROEs at Bant's house when the $5,000 cheque was
handed to him. When counsel pointed out to the appellant that the
total of the two "I Cash Money Give" purported cheques was
$11,000 and when added to the $5,000 cheque that had been cleared
through the SRC bank account, the result was that the sum of
$16,000 would have been paid to him and his wife. Gian Singh
Thandi agreed that amount was in excess of their combined net
earnings of $13,258, as shown on their individual pay statements.
At one interview with Fontaine, the appellant stated Bant had
nothing to do with him. When interviewed again - by Fontaine -
two days later, the appellant was confronted with the information
obtained by Fontaine - in the interim - from his wife and
daughter concerning the repayment of $4,000 to Bant and their
statements that he and Bakhshish Kaur Thandi had worked for SRC
only to receive ROEs so they could collect UI benefits. At this
second interview, Maninder Mangat was present and Gian Singh
Thandi told Fontaine that he kept the sum of $1,000 from the
$5,000 cheque that he had received from Bant but " the employer"
paid him back - later - that same sum in cash. During
cross-examination, the appellant stated that particular answer -
as recorded by Fontaine - was not true because Bant had not
repaid any of the $4,000 which had been handed back to him to
correct the mistake arising from the overpayment of wages when
finalizing matters in December. He also denied that his daughter
was present during the interview and described her as being "on
the other side of the wall."
CONCLUSION:
[371] The appellant - Gian Singh Thandi - is not a
credible witness. The story about the alleged overpayment of
wages is ludicrous. The truth of the matter is that the only
wages he ever received were represented by the sum of $1,000
which he retained from the $5,000 cheque deposited into the
VanCity account, of which the sum of $4,000 was repaid to Bant a
few days later. The overpayment ploy may have seemed brilliant to
Bant after a few shots of spirits but it is pretty amateurish
because the other player in the scenario - Gian Singh Thandi -
could never keep his stories straight. Also, they forgot to count
on the honesty of their daughter who was present to confirm the
admission made by her mother to Fontaine that she had never been
paid any wages and had worked only to receive an ROE. Only when
subjected to the influence of her husband did Bakhshish Kaur
Thandi withdraw that admission and deny it had ever occurred.
Where the evidence of Gian Singh Thandi conflicts with that of
Fontaine concerning the accuracy of the statements made by Thandi
during any interviews, I accept the evidence of Fontaine and
reject the version of the appellant. The appellant is fortunate
because the position taken by counsel for the respondent was that
no appellant in the within proceedings would be worse off as a
result of having pursued an appeal in this Court. Barring this
concession, I would have found that Gian Singh Thandi's insurable
earnings were $1,000 plus the appropriate amount of deductions
attributable to source deductions, as discussed earlier in
relation to other appellants. However, it is not unreasonable for
the Minister to have taken that position since it is common in
income tax appeals where the jurisdiction supports the
proposition that appellants can never walk out of Court owing
more tax than when they came in to argue an appeal from an
assessment. However, I am not prepared to gross up that $5,000
amount by adding in the pro-rated amount for deductions because
the appellant never received that amount for wages in respect of
his employment and that is a necessary component of insurable
earnings.
[372] The period of employment - as conceded by the
Minister - will be included in the revised decision but the
insurable earnings will remain at $5,000.
JASWINDER KAUR CHEEMA:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-14
MINISTER'S DECISION:
[373] The Minister decided the appellant was employed in
insurable employment with SRC for 17 weeks from June 21 to
October 12, 1996 and had insurable earnings in the sum of $7,000.
Pursuant to the concession by the Minister, that amount is
increased to match the sum of $7,637, as stated in her ROE which
was based on 20 weeks of insurable earnings. Therefore, there is
no need to add in the prorated amount - $922.90 - in source
deductions pursuant to the Chart because the 20-week limit is the
one used to calculate insurable earnings upon which payments of
UI benefits are based.
APPELLANT'S POSITION:
[374] The appellant is content with the decision of the
Minister regarding the amount of insurable earnings but claimed
she was employed for 26 weeks, from April 15 to October 12, 1996.
The appellant conceded the date of April 14 as stated in her ROE
was incorrect.
SUBMISSIONS:
[375] Narang submitted that the appellant had
established through her testimony that she worked for the entire
period claimed.
[376] Counsel for the respondent submitted the start
date of June 21, 1996 is correct because the appellant stated she
was driven to work on her first day by Harbhajan Kang and rode
only with him thereafter. Kang's first day of work - as
established earlier - was June 21. Counsel referred to the
response by the appellant - to Janet Mah - where she said her
first task was to pick strawberries, which would not have been
possible in the middle of April. Counsel admitted the information
from Min Ho Ahn that he had not hired any SFRC labourers prior to
July, was not tested in Court due to the fact he could not be
located to be called as a witness. However, she submitted it was
reasonable to accept that there was no planting work performed by
the appellant in Richmond and that the appellant's first task was
exactly as she had claimed earlier, namely, picking strawberries
on June 21.
ANALYSIS:
[377] The appellant testified she went to work for SRC
some time before the 6 month (June) and put plants into
small containers for about 3 or 4 weeks before picking
strawberries for 3 or 4 weeks. The Minister did not take issue
with the berry picking work done by the appellant thereafter
until her layoff on October 12. When Janet Mah was conducting her
investigation prior to issuing a ruling on the insurability of
the appellant's employment, she telephoned the appellant and
asked certain questions which were interpreted by Gurbaksh Kaur
Cheema. Mah noted that the appellant stated she picked
strawberries on her first day of work. During cross-examination
by Selena Sit, the appellant agreed she may have provided that
answer but could not recall - specifically - that conversation.
She stated her driver was Kang on her first day and that she
worked with her husband
- Gurmail Singh Cheema - and rode with him
every day in the same van. The appellant agreed she had
difficulty recalling details of work other than picking berries
except for the planting which she thought had lasted two or three
weeks. When speaking to Janice Morrow during the HRDC interview
on August 25, 1996, the appellant brought in her T4 slip and a
bank book pertaining to her Canada Trust account. At that time,
she told Morrow that SRC owed her the sum of $1,200 but had
received a promise that this amount would be "paid soon."
Regarding this point, any amount of wages outstanding after
layoff can only be included in insurable earnings if certain
conditions are met. Those requirements were discussed earlier in
these reasons and do not apply to this appellant because she did
not file a complaint with the proper authorities exercising
jurisdiction over labour standards.
CONCLUSION:
[378] The period of employment as ascertained by the
Minister is correct. Even if the appellant worked two or three
weeks - somewhere - planting something or other, that would only
move her start date back to about the first of June since her
next task - according to her testimony - was picking
strawberries. She is mistaken when she recalled starting work the
day after her husband's return from India on April 14th. She was
clear that Kang drove her to work on her first day. Even if one
accepted that Kang was driving earlier on an unpaid basis prior
to being placed on the official SRC payroll, that interim status
did not extend further back than a week at the most. Kang
testified he thought he drove the appellant and her husband to
work earlier than June 21 but was absolutely clear he had not
been working for SRC during the month of April and had not
started driving until the end of May when he drove the van on
some days during the next 3 weeks in order to learn the routes to
the farms and where workers lived. The evidence adduced by the
appellant is not sufficient to cause me to revise the findings of
the Minister either as to the period of employment or the amount
of insurable earnings, in excess of that conceded earlier by
counsel for the Minister.
GURMAIL SINGH CHEEMA:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-13
MINISTER'S DECISION:
[379] The Minister decided the appellant was employed in
insurable employment with SRC from June 21 to October 12, 1996
and had insurable earnings in the sum of $6,000. Pursuant to the
subsequent concession based on the pro-rated amount attributable
to source deductions, the Minister agreed the insurable earnings
should be increased by the sum of $791.66 as shown on the Chart.
As a result, the total insurable earnings are increased to the
sum of $6,791.66.
APPELLANT'S POSITION:
[380] The appellant claimed he worked from April 15 to
October 12, 1996 and had insurable earnings in the sum of $7,574
based on two cheques totalling $6,000 and further cash
payments.
SUBMISSIONS:
[381] Narang submitted the appellant had done the work -
as alleged - and had been paid for his efforts.
[382] Counsel for the respondent submitted the Minister
based the calculation of insurable earnings on the amount proven
to have been paid to the appellant in the form of two cheques and
by adding in the pro-rated amount pertaining to source
deductions. Other than that, counsel submitted there was no
credible proof the appellant had received any cash for his
wages.
ANALYSIS:
[383] Apart from the usual litany that he was paid by
the hour and never used picking cards, Gurmail Singh Cheema also
testified he returned from India on April 14, 1966 and
received a call from Harbhajan Singh Kang advising there was work
available at SRC. Cheema stated Kang picked him up the next day
in a red van and took him to work along with 4 or 5 others and
they went to a Chinese farm in Richmond where they planted seeds
into cups and added fertilizer. He described his next tasks as
hoeing and weeding around certain plants and started picking
strawberries only in the 6th month when he went to Khakh Farms in
Chiliwack. He stated he received his pay at the end of the season
in the form of two cheques - totalling $6,000 - but
also received the sum of $2,000 or $2,100 - in cash - about 15-20
days later in final settlement of his wages. This money was not
deposited into any account and the two cheques had been cashed at
the TD bank at 49th Avenue and Fraser St. together with two
cheques payable to his wife
- Jaswinder Kaur Cheema - for a total of
$13,000 in cash - within 3 or 4 days - that was not deposited to
their joint account. Cheema agreed he had always been driven to
work by Kang but had returned home once on the yellow bus driven
by Harjit Gill. He stated he worked during April and May at
the Min Ho Farms. At Discovery, he said his first day of work was
picking raspberries and when that crop was done he moved to the
blueberry fields. Cheema acknowledged he had been bound by an
affirmation to tell the truth but stated that answer was wrong as
he had picked strawberries for 4 or 5 weeks. At Discovery, the
appellant stated the last work performed was picking berries.
During his testimony in Court, he stated he ended the season by
doing some pruning work and could only recall working once or
twice - at that time of year - at Min Ho Farms where he performed
tasks in connection with zucchini and chili peppers. When
responding to the Questionnaire - tab 100 - the appellant stated
he was paid by cheque. He gave this same response during an HRDC
interview and - at Discovery - in June, 2001, where he stated
there were some wages still owing to him but was unsure of the
amount.
CONCLUSION:
[384] The appellant tied his first day of work to his
return from India and to being contacted by Kang and taken to
work the next day in a van driven by Kang, who remained his
driver throughout except for one return trip at the end of a day.
He could not have been driven to work by Kang on April 14th
because Kang did not start driving - even as a so-called unpaid
trainee - until the end of May even if one completely accepts
Kang's versions of events. There was no credible evidence adduced
by the appellant to corroborate his allegation that the work was
done at Min Ho Farms or elsewhere in Richmond. Unfortunately, he
hitched his star to the Kang wagon and it did not leave the
corral until the first of June, even on a casual and occasional
basis. It is apparent from all the evidence that the Minister's
decision concerning the appellant's period of employment is
reasonable and conforms with the facts.
[385] The next issue is whether the appellant has
demonstrated he was paid additional amounts of wages so as to
increase his insurable earnings. The short answer is: No, he has
not. I do not accept that he was paid any amount in cash at any
time. However, he had to invent some cash payments in order to
approximate the gross earnings shown on his pay statement because
he only received $6,000 by cheque. If one is going to make up
something, it is best it were done quickly and not later when
confronted with several previous statements to the contrary.
[386] The appellant's insurable earnings are in the sum
of $6,791.66.
AJMER KAUR GILL:
RELEVANT BOOK OF DOCUMENTS: R-15
MINISTER'S DECISION:
[387] The Minister decided the appellant was employed in
insurable employment for 22 weeks from May 26 to October 26, 1996
and had insurable earnings in the sum of $1,000. Pursuant to the
methodology utilized in creating the Chart, counsel for the
respondent conceded the appellant's insurable earnings should be
increased by the sum of $137.02.
APPELLANT'S POSITION:
[388] The appellant claims she was employed from May 26
to November 23 and had insurable earnings in the sum of $7,931 as
stated in her ROE.
SUBMISSIONS:
[389] Narang submitted the evidence adduced on behalf of
the appellant conformed with the expert opinion of Mark Sweeney
and that it was reasonable to conclude she had worked until
November 23 because the severe arctic outflow arrived later.
Narang further submitted that receiving payment of wages in cash
is common in the agricultural industry and the appellant should
not be denied the proper amount of her insurable earnings.
[390] Counsel for the respondent submitted the
credibility of the appellant suffered when she insisted she had
been paid on an hourly basis even though she used picking cards
to record her daily production. Counsel pointed out the Minister
had recognized - as insurable earnings - the only SRC cheque
issued to the appellant which had cleared through the SRC bank
account and that the only other so-called proof of payment was in
the form of the "I Cash Money Give" purported cheque. As for the
end date of her employment, counsel submitted the evidence
favoured a finding that she was not so engaged after the end of
October because the drivers she named were no longer on the SRC
payroll and weather conditions were such that it was extremely
doubtful any vegetable work could have continued as late as
November 23.
ANALYSIS:
[391] The first issue is whether the appellant has
demonstrated that she worked until November 23, 1996. After berry
season was finished, the appellant testified she worked on two
vegetable farms in Richmond. She stated Shindo drove her to work
in a brown van and a male driver - Binder Chahal - also drove her
now and then. During cross-examination, the appellant stated she
was confident Shindo had driven her to work both on her first and
last day. Counsel produced her answer - at Discovery - where she
had identified Binder as her driver on the last day and had added
that it was "very cold". Notwithstanding that response, the
appellant repeated her assertion that Shindo had driven her to
work that last day when - indeed - it had been cold.
Binder Chahal was laid off on November 16 and according to
Shindo's ROE, her last day of employment was October 26. The
evidence of Mark Sweeney was that one would expect only daikon
would have been harvested as late as November 15. He stated
Richmond is cooler than other parts of the Lower Mainland due to
its proximity to the ocean and expected most vegetables to have
been harvested by October 15 and in his opinion any
frost-sensitive vegetables would have been mostly destroyed
by the cold temperatures on November 22 and the following day.
Sweeney stated that his research indicated temperatures fell to
below freezing on October 30 and October 31 at the Vancouver
International Airport - situated in Richmond - and that
temperature - recorded 4.3 meters above the ground - would have
produced a killing frost at ground level for all cauliflower,
cucumbers, chili peppers and bell peppers, although daikon and
Brussels sprouts probably survived until November 22. The
appellant testified she worked inside a greenhouse and packed
vegetables into boxes but this task was performed only after she
had finished picking peppers, cucumbers, daikon and zucchini.
[392] There was only one cheque - in the sum of $1,000 -
payable to Ajmer Kaur Gill that cleared the SRC bank
account. During her direct examination, the appellant identified
her signature on a "I Cash Money Give" purported cheque in the
sum of $7,438. Her ROE was made out in the name of "Agurmail K.
Gill". The appellant explained that Shindo sometimes called her
"Agurmail" instead of by her proper name. With regard to payments
received from SRC, Gill stated she received the sum of $3,000 in
cash from Shindo early in the season followed by another equal
payment and then received $1,300 or $1,400 in cash after the
settling up had been finalized. None of this money was deposited
into her bank account. She agreed with her agent's suggestion
that when the first payment of $3,000 was received from Shindo,
she had not worked enough at that point to justify that amount if
it were attributable only to wages. Gill explained that it was an
advance against future earnings. In cross-examination, Gill
estimated that by the time she received the second payment of
$3,000, she had worked enough to justify the total amount of
$6,000 received to that point. She stated her son accompanied her
to Shindo's house to collect the second cash payment. Gill
adopted her answers - at Discovery - that the $1,000 cheque was
received between the two cash payments of $3,000 each and those
amounts together with the final payment - received at Shindo's
house - totalled $8,400. Her payroll statement - tab 89 -
shows net earnings in the sum of $8,438. Gill explained the
inconsistencies in her statements during the HRDC interview were
due to the fact she was not prepared to answer questions
involving those sorts of details but had informed herself prior
to attending at the Discovery. Gill stated she was aware
the "I Cash Money Give" purported cheque was not intended to be
negotiated at a bank and regarded it as a sort of statement by
which she acknowledged having received cash in the amount
- $7,438 - shown thereon. At the HRDC interview
on October 30, 1997, where Ajmer Kaur Gill was
accompanied by her son-in-law who acted as interpreter, she
described borrowing money from Rana or Shindo or from her
daughter in order to meet her needs. At the next HRDC interview
on November 18, 1997, she was unable to provide specific details
concerning the timing and amounts of cash payments received and
pointed out to Joann McInnes - ICO - that it was difficult to
recall events which had occurred one year earlier. It must be
noted that the appellant's memory underwent a remarkable
transformation afterwards because at Discovery and during her
testimony in these appeals, she was able to recite the timing and
amounts of the cash payments and provided details of the
circumstances surrounding those receipts.
[393] A review of the schedule - Exhibit R-64 - of
picking cards from Gill Farms shows numerous entries for Ajmer
Gill. Her production of raspberries ranged from a high of 24
½ flats on July 9 to a low of 4 ¼ on August 12.
Mohinder Singh Gill testified SRC was paid the sum of $4.35 for
each flat of raspberries and $5.35 per pail for blueberries.
Gill's maximum blueberry production was 23 pails on
August 14 but the average was much lower than that and on
September 3, she picked only 2 ¾ pails. One can see that
the most SRC ever received for her work was $106.57 in a day and
the least amount attributable to her efforts was $14.71 for
picking less than 3 pails of blueberries. Her average production
was about 11 flats of raspberries per day for which SRC could
bill Gill Farms the sum of $47.85. However, her wages at $7 per
hour, 8 hours per day would amount to $56 in addition to the
amount of source deductions required to be paid by the employer.
When one considers the overhead of paying drivers and operating
vans and taking into consideration other business expenses, SRC
would have lost between $20 and $30 every day just by employing
Ajmer Kaur Gill to pick raspberries. SRC fared somewhat better
when Gill picked blueberries but not much. She picked an average
of 12.26 pails per day for which SRC was able to bill Gill Farms
the sum of $65.59. The appellant's wages and SRC's share of her
UI/EI premiums and CPP contributions - setting aside for the
moment the overhead associated with the overall business
operation - would have put SRC at or near the breakeven point for
each pail of blueberries picked by the appellant.
[394] It is unfortunate if the appellant actually
received some cash from Shindo but the circumstances are such
that it is difficult to accept her testimony in this regard. Her
story changed several times and her testimony is fraught with
other inconsistencies. By sticking to her claim that she was paid
$7 per hour for picking berries, it makes it less likely her
other assertions are true. She stated she lived with her daughter
and borrowed money from her, as needed. When workers are forced
to rely solely on their own word that wages were paid to them -
in cash - it creates a problem of proof. That problem can be
overcome - in varying degrees - by producing records of
corresponding bank deposits, bill payments, loan payments,
receipts for purchases and any other relevant documentation.
Perhaps, another worker may have witnessed the cash payment(s) or
received some money at that same time from the employer. It is
unfortunate that a worker employed by SRC was facing such an
uphill battle from the beginning of the HRDC investigation in
order to demonstrate receipt of wage payment(s) under
circumstances where the Minister had accepted there was a valid
period of employment. However, there is nothing of substance to
support a finding that wages were paid in cash other than the
shaky credibility of the appellant. Having regard to the overall
method by which SRC operated, I find it highly unlikely that
Shindo would have made a large payment of $3,000 to the appellant
at a time when she had earned only about $700. The evidence of
nearly all the appellants in the within proceedings was that they
had to badger Shindo, Bant and Rana for small amounts of cash and
that as often as not, they received promises instead of
payments.
CONCLUSION:
[395] The appellant has not satisfied me that she worked
later than October 26, 1996. I am unable to conclude on the
evidence that she received any payment for her work other than
the $1,000 cheque. As a result, her insurable earnings are based
on that payment and the grossed-up amount is $1,137.02.
RAVJIT GILL:
RELEVANT BOOK OF DOCUMENTS: R-18
MINISTER'S DECISION:
[396] The Minister decided the appellant was not
employed in insurable with SRC during the period from June 16 to
October 26, 1996.
APPELLANT'S POSITION:
[397] The appellant claims he was employed pursuant to a
contract of service during the relevant period and that his
insurable earnings were in the sum of $7,392.
SUBMISSIONS:
[398] Narang submitted that notwithstanding various
inconsistencies in statements made by Gill to HRDC interviewers
and his general demeanour throughout the course of the SRC
matter, he was paid the sum of $6,900 in the form of 3 cheques
that cleared the SRC bank. Narang pointed out the Minister had
accepted - as insurable earnings - payments made to every other
appellant provided the cheques had cleared through the SRC bank
account.
[399] Counsel for the respondent submitted the appellant
suffered from a serious lack of credibility. She referred to
several versions he had provided to HRDC including the one at his
second interview when he stated unequivocally that he had never
picked any berries and had only worked on the vegetable farms.
Counsel pointed out that the total amount of $6,900 paid to
Ravjit Gill exceeded - by the sum of $524 - the amount of net
earnings shown on his payroll statement and would have been an
overpayment. In her view of the evidence, the subsequent stories
by Gill about this excess amount were not believable. Further,
counsel submitted there had been unexplained withdrawals from the
appellant's account following deposits of SRC cheques and the
mere fact cheques had cleared the SRC account was not enough in
this instance to support a finding that the appellant's
employment was real.
ANALYSIS:
[400] Ravjit (Ravi) Gill testified he had worked on the
family farm in India prior to immigrating to Canada with his
family in 1994. He has a good command of English and currently
owns and operates his own taxi. He testified that - in 1996 - he
was hired - over the telephone - by Rana to work as a farm
labourer. He stated he worked the first two weeks at a farm in
Richmond and drove there in a vehicle owned by him even though it
was registered in the name of his sister for insurance purposes.
He understood from Rana that his pay was to be $8 per hour but -
later - discovered his payments were based on $7 per hour. He
explained that he used his car rather than riding in the SRC
vehicles so he could sleep later in the morning and arrive home
earlier. However, there were times when he rode in a van driven
by Master, perhaps 10 or 20 times during the course of his
employment. When working at other jobs before starting at SRC,
Gill stated he had been paid by cheque every two weeks. He
did not receive any wages from SRC until handed the cheque - tab
91 - in the sum of $3,000 and dated September 22, 1996 which he
deposited to his Canada Trust account on September 27. Gill
stated the only other amounts he received were small sums of $15
or $20 on 4 or 5 occasions that Rana apparently regarded as
loans. Gill received another SRC cheque - tab 92 - in the sum of
$2,000 dated September 27, 1996 and deposited it to his account
on October 3. The final cheque - tab 93 - in the sum of $1,900
and dated September 29, 1996 was deposited into Ravjit
Gill's account on October 24. The appellant testified that he
picked strawberries for 10 or 12 days at Khakh Farms and at other
farms in the Abbotsford and Chiliwack areas. He stated he picked
raspberries for 10 days and blueberries for about 15 days but the
majority of his work was performed in Richmond at Min Ho Farms,
Mike's Farm and McKenzie Farms.
[401] During cross-examination, Ravjit Gill explained
some of the strange statements he had made to HRDC interviewers
by confessing he drank too much in 1996 and 1997 and had suffered
a loss of memory. He attributed some of his behaviour to the fact
he was the only son and stated that status afforded him some
leeway to do "stupid things". Gill admitted he had been
"careless" when giving answers at his Discovery. He agreed he
used the word "never" when questioned by Gail Buckland whether he
had ever ridden to work in a van. When responding to the
Questionnaire - tab 104 - Gill admitted he answered questions in
a manner that indicated he rode to work each day in
transportation provided by the employer. Gill agreed that - at
Discovery - when he stated he had picked strawberries on his
first day of work, this answer contradicted his testimony that he
started his employment on June 16 by working on a vegetable farm
in Richmond. He agreed both answers could not be correct and
stated the correct version was the one presented in Court,
namely, that he worked with onions in Richmond. The appellant
explained he told Gail Buckland he never picked berries because
he thought she was talking about his work at the Chinese Farm in
Richmond where the only work done was with respect to vegetable
crops. Gill conceded he had not mentioned picking berries when
describing the nature of his duties, whether when speaking to
Buckland or when completing a Questionnaire. Even at Discovery,
he described working only at 3 different vegetable farms and
could not explain why he would have omitted details of picking
berries, except to reiterate his memory was not good. At
Discovery, Gill related the same story about returning the
overpayment - by driving to Rana's house - and handing Rana the
sum of $525. During his testimony in Court, Gill stated he repaid
Rana the sum of $500 and retained the balance of $25 as
compensation for the inconvenience of having to drive to Rana's
house. Gill stated he had not explained that situation to
Buckland during the HRDC interview because he did not consider
the repayment of the excess wages as being in the same category
as returning money to an employer pursuant to some arrangement.
Gill denied that the cash withdrawals of $800 and $2,000 on
November 1 and November 8, respectively, were connected in any
way to his employment with SRC and denied that he had
participated in any scheme to create a false employment.
[402] A review of the schedule - Exhibit R-64 - of
picking cards from Gill Farms does not reveal the name of Ravjit
Gill, although he stated during direct examination that he picked
raspberries there and also at Khahk Farms. When completing the
Questionnaire which he returned to Bernie Keays, there was no
mention of any berry work. I commented to Ravjit Gill during his
testimony that I found it strange that someone rising from a
comfortable bed at 7:00 in the morning, driving out to
Abbotsford, then squatting on the ground under a hot sun to pick
strawberries all day would have this experience erased from his
memory. Gill testified that when picking strawberries and
raspberries, he placed them in flats which were taken to a cart
that was pulled by a tractor. He was sometimes handed a picking
card and knew his raspberry flats were counted. Gill stated he
did not pay much attention to this practice because he was being
paid by the hour. When issued with a picking card, he recalled it
was punched at the scale. Gill's name does not appear on the
other schedules - Exhibit R-65 and Exhibit R-66 - of picking
cards for Monga Farms and Kliewer Farms. However, SRC was buying
blueberries from small holdings and used its own employees to do
the picking. SRC also supplied labourers to other raspberry farms
in the area for which no picking cards were produced. In contrast
to other SRC workers, Gill maintained he worked for 16 weeks
- out of a total of 19 - at the vegetable farms. Counsel for the
respondent invited me to rely on the statements of Min Ho Ahn -
to Janet Mah - that he had not hired any SRC workers until July
1. That may be correct but Gill stated he also worked at other
farms in the area. Gill stated he worked with various crops at
the Min Ho Farms including turnips, daikon, carrots, onions,
cabbages and zucchini. Ahn and/or an employee apparently told Mah
- during a telephone conversation - that only zucchini and daikon
were grown on that farm in 1996. There are too many people
testifying otherwise and I do not accept this information is
correct in the absence of any documentation, business records or
evidence adduced through other witnesses. Gill stated he was paid
for exactly 8 hours per day even if he worked more or less
because it evened out over the course of the summer.
[403] Counsel for the respondent pointed out that the
last cheque to Gill - in the sum of $1,900 - was dated September
29, nearly one month before he was laid off. One cannot draw any
rational conclusions from the dates inserted on cheques issued by
SRC. Often, workers were handed one or more cheques - bearing
different dates - on the same day. I am more interested in the
date of the deposit. It does not make sense that the appellant
would deposit his final pay cheque on October 24, 1996 and then
work an additional two days before his official layoff but
many things do not make sense in SRC-land, a fantasy land in its
own right.
[404] The issue is whether I accept the testimony of
Ravjit Gill notwithstanding his egregiously cavalier attitude to
the HRDC investigation as revealed by his answers to Buckland.
There is no doubt that his responses were properly recorded by
her. There is no doubt that his demeanour was irritating, to say
the least. He seemed to regard the inquiry by HRDC as nothing
more than a nuisance which cut into his party time. However, he
testified in Court and was put through a severe and thorough
cross-examination by Johanna Russell. In my view, Gill in 1996
and probably thereafter until his marriage in 2000, was a
charming rogue who cared little for anyone except himself and his
own convenience. He knew he occupied an exalted position within
his family even though he and his father
- Gurbachan Singh Gill - barely spoke to
each other most of the time. Much of what he stated in Court
rings true. He is not the sort of fellow to get up early and ride
the bus with other workers - most of whom were older females -
when he could hitch a ride with his sister - on occasion - or
drive himself to work. He did not strike me as someone who would
work and then repay money to the alleged employer. He had been
employed at other jobs prior to working at SRC and was aware of
certain employment standards. Gill came across as a person who
was careless in the use of language when responding to questions
he considered to be unimportant. I am extremely reluctant to
convert the suspicions harboured by the Minister - concerning the
withdrawals from Gill's bank account - into a proven fact that he
repaid some of his wages to someone at SRC. There was a large
withdrawal of $10,000 in order to send money to India but he had
other funds in his account and there was no pattern of cash
withdrawals capable of supporting the allegation that money was
returned to SRC from the deposit of the 3 cheques. As pointed out
by Narang, all other appellants were allowed insurable earnings
based on cheques proven to have cleared the SRC bank. However,
the applicable caveat is that in those situations, the Minister
was satisfied there had been a valid contract of service
constituting insurable employment. I am aware there is no
obligation on the respondent to prove fraud on the part of the
appellant. However, in the face of his testimony and drawing
appropriate inferences from the totality of the evidence, I find
there was a shift in the evidentiary burden towards the
respondent within the context of the overarching requirement that
the appellant prove his case on a balance of probabilities. For
the appellant, the scale does not have to tip past that point. In
this particular appeal, Ravjit Gill's discharged the traditional
burden - albeit to a degree capable of measurement
only by a micrometer - and is entitled to succeed. On balance and
on the basis of having observed Gill closely in Court during his
testimony, I find he was employed by SRC as claimed. Ironically,
that period of employment is among the few claimed by appellants
that conform with the position taken by counsel for the
respondent based on the expert opinion of Sweeney and the
testimony of several growers and other appellants. Despite
receiving a total of $6,900 in cheques, Ravjit Gill's net pay
should have been only $6,376 and he testified the overage -
whether $500 or $525 - had been returned to Rana. Therefore, his
insurable earnings must be based on the sum of $6,376 together
with the applicable amount attributable to source deductions. The
total deductions - in the sum of $1,015.67 - shown on Gill's pay
statement were based on gross earnings of $7,392. Therefore, the
credit for source deductions must be calculated by applying the
result of the ratio of $6,376 to $7,392 - 86.25% - to the sum of
$1,015.67 in order to produce the sum of $876.01 which - when
added to the sum of $6,376 - produces the sum of $7,252.01.
[405] I find Ravjit Gill was employed in insurable
employment with SRC from June 16 to October 26, 1996 and that he
had insurable earnings in the sum of $7,252.01.
INDERJIT SINGH ATWAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-9
MINISTER'S DECISION:
[406] The Minister decided the appellant was not
employed in insurable employment with SRC during the period from
December 29, 1996 to January 11, 1997 because he was not employed
under a contract of service.
APPELLANT'S POSTION:
[407] The appellant claimed he was employed during said
period and had insurable earnings in the sum of $672.
SUBMISSIONS:
[408] Narang submitted the appellant had established
that he worked during the relevant period. Narang pointed out
Atwal had received a SRC cheque in the sum of $580 and when it
was returned NSF by the TD bank, obtained cash from Shindo to
redeem it. He also submitted the appellant had not needed the
extra work at SRC in order to qualify for UI benefits and that
HRDC had erred in that regard.
[409] Counsel for the respondent submitted the appellant
had not proven his case because his testimony was not credible.
The appellant had 18 weeks employment with Hothi Farm Labour
Supply and applied for UI benefits based on that ROE. On December
19, 1996 he was advised another 6 weeks of insurable employment
was required to attain the total of 26 weeks needed to qualify
for UI benefits. As a result, Atwal obtained an ROE from Zeacan
Cleaning covering his 6 weeks employment there. Counsel pointed
out the appellant still needed an additional two weeks
insurable employment to reach the 26-week threshold and entered
into an arrangement with Bant to create sham employment to fill
that gap. Counsel submitted that even if the appellant was found
to have been in insurable employment with SRC during the relevant
period, he had not established that he was paid for his efforts
and - therefore - his insurable earnings were nil.
ANALYSIS:
[410] Inderjit Singh Atwal testified he was hired by
Bant - whom he knew to be a labour contractor - to work cleaning
up construction sites. He stated Bant drove him to a site on
December 29 and left him there to pile up material and cover it
with sheets. He stated Bant drove him to the worksite each day
and - on occasion - remained to assist him to stack sheets of
drywall. Atwal described working at 5 or 6 different construction
sites where the houses had been framed but no doors were
installed. He stated that the snow on the ground - in January -
had not interfered with his work. Atwal testified he was laid off
on January 11 and received a SRC cheque in the sum of $580. He
took it to the TD bank but was informed by the teller there were
insufficient funds in the SRC account. He stated he received cash
from Shindo about 20-25 days later to redeem the cheque. Atwal
stated he recalled being questioned by "a white guy" (Fontaine)
and an "Indian guy" (Sarb Sandhu) acted as interpreter. When
informed that he had described riding to work in a
"sky-blue older van", Atwal stated the interpreter must
have made a mistake because he recalled telling Fontaine it was a
brown van. He also mentioned seeing 40-50 workers seated in a
yellow bus outside Bant's house in June or July, 1996 even though
he had not worked for Bant and/or SRC until December 29. Atwal
was interviewed - by Fontaine - on 3 separate occasions and each
time a Punjabi interpreter was present. The appellant stated he
was aware of his obligation to tell the truth at those interviews
but admitted some answers were wrong because Shindo told him what
to say about certain matters. During an interview - tab 89 - on
June 12, 1997, Atwal told Fontaine that the work was "always
outside" and that it was cold but he wore a raincoat. At that
point, Fontaine advised Atwal there was two feet of snow on
the ground at that time. Atwal then told Fontaine that he had
installed large sheets of material on walls inside houses. The
following day, Atwal was interviewed again by Fontaine and
described how he was hired by Rana - via the telephone - and that
Rana had handed him the ROE following layoff. He described
working outside one day and then performing the balance of his
work inside where he packed cauliflowers and potatoes that flowed
from a truck, down a chute, into plastic bags. At that point,
Fontaine pointed out to Atwal that this was the third version of
his work during the short period of employment. Atwal testified
the confusion in this regard must have arisen due to the
interpretation provided by the interpreter and advised that
dialects can change between neighbouring villages in India. Atwal
agreed he had not provided HRDC with a photocopy of the $580 NSF
cheque - Exhibit R-8, tab 4 - but produced it following
Discovery. He stated it was Shindo who had given him $580 in cash
to replace the cheque and he spent all the money without
depositing any to his account.
CONCLUSION:
[411] The appellant only had to keep his story straight
enough to cover 11 days of employment - within a 13-day period -
which would have entitled him to receive UI benefits.
Unfortunately, he was unable to do so and offered up 3
substantially different versions of his duties during that short
period. Weather data from the Vancouver International Airport -
located in Richmond - indicated it snowed 41 centimeters
(cm.) on December 29 and 16 cm. remained on the ground. The data
also revealed there were accumulations of 35 cm. and 25 cm. of
snow on December 30 and December 31, 1996, respectively. Until
informed by Fontaine about the extent of the snowfall at that
time, Atwal had provided details of work such as picking up items
from the ground while Bant used a shovel. According to the
testimony of Fontaine and as recorded in his notes of the first
interview with Atwal, the appellant described helping Bant
install large sheets of material on the wall. Atwal denied that
he gave those answers and stated he had never done any
installation work with Bant, although Bant may have helped him
move a few sheets of material and lean them against some walls.
He added that Bant only dropped him off at work and picked him up
again in late afternoon in order to drive him home. One can see
two radically different versions emerge during the first
interview with Fontaine. During the interview with Fontaine the
following day, Atwal described working with cauliflower and
potatoes. It is not reasonable to conclude that - at this point -
Atwal was confused about the purpose of the questioning - by
Fontaine - concerning his employment with SRC during the relevant
period. He knew he was being asked about his alleged employment
with Bant/SRC and understood the interviews had nothing
whatsoever to do with his previous employment with Hothi from
July 3, to November 9, 1996. There was also inconsistency in
Atwal's testimony concerning the hours and dates worked. He
testified the only days he took off were December 31, 1996 and
January 1, 1997 because of the holidays. He stated he worked
between 7.5 and 8.5 hours each day for a total of 96 hours prior
to layoff. However, he told Fontaine - at the first interview -
that during one of the two weeks of his employment he did not
work Saturday or Sunday. During cross-examination, Atwal
denied giving those answers.
[412] There are numerous inconsistencies throughout the
testimony of this appellant and he was not able to adduce proof
that he had been paid for his alleged employment. He is not a
credible witness. Obviously, he discovered HRDC required him to
have 26 weeks of insurable employment in order to qualify for
UI benefits. Perhaps, that information provided to him was
wrong, because he had never applied for UI before but he knew
the position taken by HRDC was that he needed another two
weeks of employment. Bant was working full time during this
period at a seafood company. We do not know his working hours and
it is possible he may have been able to drop off Atwal at these
sites and pick him up after his own work had finished for the
day. However, after taking into account the weather conditions,
the mass of inconsistencies and outright contradictions contained
in Atwal's descriptions of work, and considering there was
evidence that SRC was not operating after December 31, 1996 -
certainly not in the construction business - I conclude the
appellant fabricated his employment with the connivance of Bant.
The NSF cheque by which the appellant purports to prove there was
real employment is of very little probative value. As for any
lack of comprehension by Atwal during the interviews with
Fontaine, one must bear in mind that Sarb Sandhu is an
experienced court certified interpreter with many years
experience. It is absurd to believe he was incapable of properly
interpreting the questions posed by Fontaine and the responses of
Atwal. I accept the evidence of Fontaine concerning the contents
of his interviews with Atwal and am satisfied the notes made by
him are accurate.
[413] The appellant has failed to discharge the burden
of proof and the Minister's decision is confirmed.
SHARINDER SINGH BAGRI:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-10
MINISTER'S DECISION:
[414] The Minister decided the appellant was employed in
insurable employment with SRC from May 5 to November 2, 1996 and
had insurable earnings in the sum of $2,000. By adding in the
pro-rated amount of source deductions - $275.45 - in accordance
with the Chart, counsel for the respondent conceded the insurable
earnings should be $2,275.45.
APPELLANT'S POSITION:
[415] The appellant agrees the Minister correctly
decided the period of employment but claimed insurable earnings
in the sum of $7,840 during said period, as stated in his
ROE.
SUBMISSIONS:
[416] Narang submitted the appellant had received cash
in addition to the $2,000 cheque and should be credited with
those payments because it was common within the agricultural
industry to make cash advances - against a final cheque -
throughout the season.
[417] Counsel for the respondent submitted the appellant
maintained he was paid at an hourly rate throughout his
employment when it is apparent that is not true. His name appears
on picking cards from both Monga Farms and Kliewer Farms on which
the volume of berries picked by him was recorded. Counsel
referred to the evidence which demonstrated that even though the
appellant admitted using picking cards every day and kept copies
of his cards at home, he did not take them to Rana's house at the
end of the season in order that his final wages could be
calculated. Because the appellant was unable to establish he had
been paid any amount other than by a cheque for $2,000, counsel
submitted the Minister's decision was reasonable and should be
confirmed.
ANALYSIS:
[418] Sharinder Singh Bagri testified that he thought he
was to be paid $8 per hour and was unsure how his wages were
calculated by SRC at the end of the season but was satisfied he
had been paid in full. Since moving to Canada in 1980 - at the
age of 26 - he worked as a cleaner at Pearson International
Airport in Toronto and after moving to Vancouver - in 1984 - was
employed in various jobs including in a restaurant and at a fish
company. He is currently employed as a janitor. He had no
experience as a farm worker until he started working for SRC on
May 5, 1996. He testified he performed tasks involving potatoes
at a farm on #3 Road, the same location where he worked on his
last day, November 2. Bagri recalled receiving payments on 4
occasions, as follows: $1,000 in cash in June; $4,000 in cash in
September; $2,000 - by cheque - in October and a final cash
payment of $1,750 in November when he was laid off. Bagri stated
all payments were made by Shindo and the first cash payment was
handed to him at her residence and that she wrote in a large book
where he signed upon receiving his money. According to the
appellant, the next payment of $4,000 was received at Shindo's
house and he signed the book at her request. The $2,000 cheque -
tab 91 - dated September 7, 1996 was cashed at the TD bank at
49th Avenue and Fraser St. on October 7, 1996. The appellant
stated the final cash payment of $1,750 was received at Shindo's
house when he obtained his ROE. Bagri testified that in all his
other jobs he had been paid by cheque every two weeks but when
SRC did not pay him after that period, he asked Shindo about it
and was told SRC only paid money to workers upon request because
it had to wait until the farmers paid the company. Bagri stated
he was not happy with that explanation but needed the work.
Shindo was his driver nearly every day and each working day was
recorded as 8 hours even it if was an hour more or less. Bagri
recalled using the $4,000 cash - received in September - to buy
Indian rupees through a money exchange in order to provide funds
to his father - in India - who was extremely ill. He did not
deposit any of his cash payments into his bank account and stated
he had not been aware of the " I Cash Money Give" purported
cheque - tab 90 - in the sum of $4,000 until it was shown to him
in Court and he stated he had not written "S. Bagri" on the
signature line. Bagri stated he assumed SRC was owned by Bant and
Shindo because he worked with Rana nearly every day for two
months at a vegetable farm in Richmond that grew zucchini and
other vegetables. He knew Rana had lost his driving
privileges.
[419] During cross-examination by Selena Sit, Bagri
stated he never had problems receiving UI benefits in the past.
Counsel showed the appellant his pay statement - tab
89 - indicating he had gross earnings in the sum of $10,192 and
net earnings of $8,788. Counsel read to the appellant certain
answers given by him at Discovery on November 9, 2001 where he
said Shindo made him sign on the signature line of the $4,000 " I
Cash Money Give" purported cheque before she would give him any
money which he needed in order to send funds to India. Bagri
could not recall those answers but agreed he must have given them
if they were written down. Bagri agreed he had no receipts or any
other documentation to support his contention that he received
$4,000 in cash from Shindo. The money exchange company he used to
send money to India did not provide him with a receipt and he
stated the arrangement was based on trust. Narang indicated he
was attempting to contact the Indian money exchange in order to
obtain some documentation acknowledging the transaction described
by Bagri but nothing was presented in evidence, although Narang
advised he was certain that - at some point - he had seen the
phone number of that exchange in his files. Bagri stated he was
surprised to learn from his co-workers that the farming
industry was different than other employment and that he would be
paid the balance of wages at the end of the season. Bagri stated
his wife calculated he had earned a total of $8,788, although she
had never seen the pay statement at tab 89. Bagri denied repaying
any money to anyone at SRC and considered he had been paid in
full, although perhaps not at $8 an hour, the rate he expected
when hired.
[420] The appellant is an individual who has worked
steadily since arriving in Canada and with the exception of 1996,
has always been employed in regular employment where he was paid
- by cheque - every two weeks and received a pay stub showing his
deductions. Before 1996, he had not worked as a farm labourer and
I accept he needed the job and decided not to complain about the
apparent breach of labour standards but it seems odd he would not
have recorded the specific dates of his alleged cash payments
from Shindo. It is also somewhat baffling that he would not have
taken steps to gather some proof that he sent money to India.
Even though Bagri conceded - reluctantly - that he must have
given answers at Discovery about signing the "I Cash Money Give
Cheque", he still had grave difficulty reconciling that fact with
his own recollection of that event to the point where he
explained that although he must have uttered those answers,
"today, it's just not coming in my brain". Bagri admitted it was
Shindo - not Rana - whom he regarded as his employer even though
he told the HRDC interviewer he had been hired by Rana because
Shindo wanted him to say that. The payroll record prepared by
Bains Tax at the end of the season obviously used software
designed to produce wage statements based on an hourly wage
rather than varying piecework rates. They are unreliable even
though on some occasions portions of the information contained
therein are the best source available and can be utilized in a
limited context for a specific purpose in respect of an
individual appellant. Bagri's attempt to match the amount of his
alleged payments to his gross earnings - by describing how his
wife calculated the amount due to him - is not credible. He could
not explain how she was aware of the amount of source deductions
and the actual basis for his wages in order to arrive at an
amount only $28 shy of the one contained in the payroll
statement. The appellant was unable to produce any record of
hours worked and explained he had thrown away the small book in
which he had written his hours.
CONCLUSION:
[421] In order to allow any or all the cash payments, I
would have to accept that Bagri's testimony is credible on that
point. The problem is that he testified he was paid an hourly
rate when it was obvious he was not remunerated on that basis
because he used picking cards and was aware of their purpose. He
knew if a flat was not full it would not be counted as such until
extra berries were added to bring it up to the required weight.
He retained his copies of picking cards on which his daily
production was recorded. His explanation as to being unable to
recall his previous answers - at Discovery - about signing his
name on the signature line of the purported $4,000 cheque is not
credible. There is some level of believability attached to his
description of sending the sum of $4,000 Canadian to India in the
form of rupees but the problem is those funds probably came from
other sources and not from Shindo in payment of wages. The
evidence of Royal bank employee Audrey Bartsch confirmed that
Bagri had not deposited any SRC cheque into any of the two
accounts he had at that branch. As a result, the only wage
payment that meets the requisite standard of proof is the one in
relation to the $2,000 cheque which was properly negotiated
through the SRC bank account.
[422] The proper amount of the appellant's insurable
earnings during the relevant period is $2,275.45.
HARBANS KAUR PUREWAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-27
MINISTER'S DECISION:
[423] The Minister decided the appellant was employed in
insurable employment with SRC for 7 weeks during the period from
July 14 to August 24, 1996 and had insurable earnings in the sum
of $2,744. Later, counsel for the respondent conceded the correct
period of employment was from July 7 to August 27, 1996 but
advised the insurable earnings remained the same because in
arriving at that sum, Bernie Keays - Appeals Officer - had added
back the sums attributable to source deductions on her proven
earnings.
APPELLANT'S POSITION:
[424] At the outset, the appellant claimed she was
employed from July 14 to December 7, 1996 but accepts the
Minister decision insofar as it concerns the start date - July 7
- of her employment as a result of counsel having reviewed
information on picking cards. However, the appellant maintained
her insurable earnings were in the sum of $8,152 as stated on her
ROE.
SUBMISSIONS:
[425] Narang submitted the appellant became confused
about the dates of her employment when the HRDC interviewer
erroneously accused her of being in India at the time of her
alleged employment. Even though that mistaken impression was
cleared up later, Narang submitted the details provided by the
appellant after the accusations were incorrect and were
attributable to that error by the ICO.
[426] Counsel for the Respondent conceded that cheques
in the total sum of $6,500 - payable to the appellant - had
cleared through a financial institution. However, beginning at
her first HRDC interview on February 6, 1998, the appellant
stated she had worked only 7 or 8 weeks and was very clear that
she had not worked during the months of September to December,
inclusive, even though she denied in her testimony that she gave
those answers. Counsel pointed out that the appellant's daughter
joined the interview and probably participated in the
interpretation of questions and answers, although Charan Sader
Dhillon - HRDC employee - had been interpreting from the
beginning. Counsel submitted the appellant understood the import
of the questions and her answers clearly indicated she had not
worked for SRC after the month of August.
ANALYSIS:
[427] Harbans Kaur Purewal testified she began working
for SRC on the basis that she would be paid $7 per hour and would
receive a cheque every two weeks. It turned out this was not the
case and she described having to ask Shindo for money. She stated
Shindo paid her in the form of two cheques - $500 and $6,000
respectively - together with a final cash payment of $525 at the
end of the season. When the appellant applied for UI benefits,
she did not mention she had worked on a vegetable farm and
described her work as "berry picking". Purewal testified the
cheques for $500 and $6,000 were negotiated at the SRC bank and
that she took away cash on both occasions. The cheque - dated
9.10.1996 - was not cashed until December 12 and even though the
appellant stated she had an account at the same branch, did not
deposit that cheque. The appellant recalled her interview with
Jeannie Suric at the HRDC office and agreed her daughter -
Perminder Sihota - joined the interview and remained until the
end. The Questionnaire - tab 101 - returned by the appellant
after completion by her daughter stated she picked raspberries
during her first week and that she received wages only at the
"end of season". Harbans Kaur Purewal stated those answers were
wrong because she told her daughter that she had received two
cheques as well as one amount in cash. During the rulings
process, another daughter of the appellant interpreted on her
behalf and according to the notes made by Janet Mah, told Mah
that her first work was picking strawberries. The appellant
denied giving that answer and speculated she probably was not
even home that day.
[428] It is interesting to examine the content of the
interview with Jeannie Suric. There is no doubt Suric was
mistaken when stating to Purewal that her passport indicated she
was in India during her alleged employment. In isolation, this
assertion by Suric may have been the root of some confusion on
the part of Purewal as her immediate reply to that assertion was
"I worked about six or seven weeks". However, once her daughter
joined the interview, Suric put further questions to the
appellant and asked specifically whether she had worked for
Rana/SRC from July 14 to December 16, 1996. The appellant
replied, "No". Suric asked "when did you work for him?" and
Purewal stated "I worked from July 14, 1996 to the end of August,
1996". Suric then proceeded to ask Purewal whether she had worked
in certain following months and inquired whether she understood
the months of the year. Purewal responded by assuring Suric she
was aware of the months and stated she did not work in September.
Suric then asked her about October and Purewal replied "I did not
work". Suric then asked about whether she worked in November and
the appellant replied "I did not work". Suric asked about
December and received the same reply. Purewal then told Suric
that because she cannot read nor write English, she merely used
the dates on her ROE when applying for her UI benefits. The
appellant's daughter then wrote a Statutory Declaration - tab 91
- in English and Suric testified that her notes indicated Sihota
interpreted the contents thereof to Purewal before she signed it.
In said declaration, Purewal stated she worked for Rana for a
period of 7-8 weeks and not for the 21 weeks indicated in
her application for UI benefits and as stated in her ROE. She
repeated therein her earlier statements to Suric that she had not
worked from September to December, inclusive. During her
testimony, Purewal stated she signed each page of the interview
notes because she had been "threatened" by Suric and did not know
the English months of the year and would not have said that she
did not work in September, October, November and December. She
also testified the contents of her declaration had not been
translated and read aloud to her - in Punjabi - and that she had
became aware of its contents only when it was interpreted to her
- in Court - by Russell Gill. Shortly after the interview with
Suric, the appellant showed up at the HRDC office with a piece of
paper on which her husband had written the dates of her alleged
employment and told her they represented the dates she had worked
for SRC. In the Questionnaire - tab 101 - the appellant denied
using picking cards. She stated her daughter, who had completed
the Questionnaire, made errors when recording her answers. There
was no mention of any cash payment in any of the answers provided
in that Questionnaire. The appellant testified she worked -
cutting cabbages off at the root - until December 7, 1996, even
though there was snow on the ground. At the second HRDC interview
on February 13, 1998 - also conducted by Suric - the appellant
changed her story and said she had worked from July 14 to
December 7, 1996 and produced the piece of paper on which her
husband had written those alleged dates of her employment. In her
testimony, the appellant stated she worked on two vegetable farms
in Richmond and picked daikon, turnips, green peppers, zucchini,
cucumbers, potatoes and cabbages, the last crop to be harvested
before her layoff. This does not conform with the evidence of
Sweeney who testified it was highly improbable that any
vegetables - except for Brussels sprouts - would have been
harvested during November, let alone until December 7 due to
farming practices - generally - and - specifically - the weather
conditions in 1996. I consider it improbable that Purewal took
off only one day during her alleged 21-week period of employment
and that she worked precisely 8 hours every day even when
picking berries.
CONCLUSION:
[429] There is no doubt that two cheques totalling
$6,500 cleared the SRC bank account. However, insurable earnings
are not based merely on the receipt of money from someone who
happens to be an employer for a certain period of time, they must
be in respect of that employment. It is astounding that an
appellant would attempt to explain away not only statements made
during the course of an interview conducted in the presence of a
Punjabi-speaking interpreter - as well as her own daughter - but
also the contents and effect of a Statutory Declaration that was
explained to her - in Punjabi - prior to her signing it in front
of Suric. The questions asked and answers given in response
during the interview were clear. The contents of the declaration
were clear. There was even care taken by Purewal's daughter to
use language that specifically repudiated the 21-week period as
stated in both the ROE and UI benefits application. The appellant
lived for 44 years in England and Canada and claimed not to
understand the months in the English calendar. It is
inconceivable that anyone could expect the answers given to Suric
- and backed up by a Statutory Declaration - would
vanish simply by requesting a subsequent interview at which she
presented a scrap of paper - created by her husband - and told a
story to match the dates recorded thereon. The details of the
alleged work do not conform with the evidence overall and the
drivers she named were not working after October 26. The fact is
that she told the truth initially about her period of employment
and then attempted to change her story, probably after being
instructed to do so by her husband, Harbhajan Singh Kang. She is
not able to prove that any payment in excess of $2,744 is
attributable to her employment and any other payment does not
have the requisite connection to her work so as to be eligible
for inclusion into insurable earnings which Keays calculated on
an hourly basis because he did not have access to all her picking
cards and could not compute her income on the basis of weight of
berries picked. This approach was reasonable under the
circumstances without accepting that her remuneration was based
on an hourly rate during her employment which was limited to
picking berries. It was a rough and ready tool that was handy at
the time and Keays used it accordingly.
[430] The appellant has not demonstrated that she is
entitled to any insurable earnings or expanded period of
employment other than as decided by the Minister initially and/or
conceded - later - by counsel.
PARMJIT KAUR REHAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-28
MINISTER'S DECISION:
[431] The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks from June 22 to
October 19, 1996 and had insurable earnings in the sum of $6,200.
Subsequently, counsel for the respondent conceded her insurable
earnings should be increased by the pro-rated amount - $850.40 -
attributable to source deductions for total insurable earnings of
$7,050.40.
APPELLANT'S POSITION:
[432] The appellant claimed she was employed from June
22 to December 7, 1996 and had insurable earnings in the sum of
$7,945 in accordance with her ROE.
SUBMISSIONS:
[433] Narang submitted the appellant had received cash
in addition to the four cheques that the Minister accepted
had been paid to her on account of wages. He pointed out that
although the other drivers had been laid off by November 16,
Shindo could have continued to drive workers to the vegetable
farms because she was - in essence - one of the principals of
SRC.
[434] Counsel for the respondent submitted the
appellant's credibility cannot survive her testimony that she was
paid by the hour, never used picking cards and was paid $7 per
hour even while picking berries. As was the case with most other
appellants, counsel submitted the payroll record was unreliable
and did not accurately reflect the wages actually received. As
for the appellant's testimony concerning receipt of cash payments
for wages, counsel submitted she had provided contradictory
explanations, including those at Discovery and during HRDC
interviews. Counsel submitted it was extremely unlikely the
appellant had continued working until December 7 because the
harvesting would have been completed by then, particularly in
view of the cold weather and the fact the only drivers named by
the appellant had been laid off earlier.
ANALYSIS:
[435] Parmjit Kaur Rehal is well-educated and studied
for her Bachelor of Arts degree in India before transferring to a
course of technical studies. Following graduation, she became a
teacher of cutting and tailoring. She came to Canada in 1994 and
currently operates her own tailoring business. She testified she
was driven to work on her first day by Harbhajan Singh Kang.
Later, in the course of her employment she was driven to work -
in a yellow bus - by Harjit Gill and by Shindo who drove a van.
She stated she picked strawberries for 3 weeks at
Khakh Farms and then picked raspberries for 6 weeks, of
which period, 3 weeks was spent at Gill Farms. When that crop was
finished, she picked blueberries and when the season ended
started working at the Chinese Farm and Mike's Farm where
cabbages, turnips, radishes, zucchini and peppers were grown.
While picking berries - and later when working at the vegetable
farms - the appellant maintained she was always paid $7 per hour
and Rana and Shindo were her supervisors. She testified she never
used a picking card and did not see other workers using cards.
She stated she worked at the vegetable farms until 33 days before
the birth of her baby and worked outside even if it was wet
because she was protected by raingear. From time to time, the
appellant requested money and Shindo often provided excuses based
on the cash flow problems affecting SRC. The appellant testified
it would take about 7 to 10 days following a request before
Shindo paid her any money. She stated that during the course of
her employment, she received 4 cheques for a total of
$6,200, as well as a total of $1,700 in 3 cash payments of $500,
$1,000 and $200, respectively, from Shindo. The appellant
recalled receiving the first cash payment in the first week of
July and the last payment when she received her ROE in Richmond,
but could not recall when she received the middle payment of
$1,000 in cash.
[436] During cross-examination by Johanna Russell, the
appellant stated that despite the expert opinion of Sweeney
concerning harvest dates of various crops, she had worked until
December 7, 1996, and probably performed her last series of tasks
at Mike's Farm rather than at Min Ho Farms. The appellant
maintained her position that she had not used picking cards and
had not seen the drivers handing out cards to fellow workers. She
described picking berries, placing them in a flat and setting
aside the flat when it was full. According to her testimony,
someone picked up that flat and took it to a truck but she did
not see it being weighed and/or counted. She stated this
procedure was of no concern to her since she was being paid by
the hour. When Janet Mah telephoned her to inquire about the
conditions of her employment, the appellant provided answers
through her husband who indicated he had the appellant's
permission to act as her interpreter. The information provided in
that manner was that Harbhajan Singh Kang and Harjit Gill had
been her only drivers. Other evidence adduced during these
appeals established that Gill was laid off on October 6 and went
to India on October 11 and Kang was laid off on October 19.
During the HRDC interview - tab 101 - with Ted Bowerman on
July 10, 1997, the appellant stated she had been driven to work
at the vegetable farms by Kang and Gill without mentioning Shindo
until counsel pointed out to her these drivers were both laid off
prior to October 20. At this interview, Parmjit Kaur Rehal denied
taking off work for any reason. At Discovery, she admitted she
took off a Sunday now and then, either by requesting permission
from Shindo or merely informing the van driver she was not going
to work that day. She stated the version given during Discovery
was correct. At Discovery, the appellant explained how she had
pleaded for some money and after about a month received $500 from
Rana. This was the same information provided during her HRDC
interview on July 10, 1997, when she told Bowerman that Rana had
given her a $500 cash payment and then described 3 subsequent
cash payments by stating they were "$1,000, $2,000, $1,200, I
forget exactly". The appellant testified she did not recall
giving these answers but as far as she was concerned, because
Rana and Shindo lived in the same house, she did not pay
attention to which one of them had given her the first cash
payment. She agreed with counsel's suggestion that except for her
own testimony, there was no proof she had received the cash
payments from Shindo. She recalled she had to sign in a book each
time Shindo gave her cash. She testified she had maintained a
record of cash payments in a notebook but discarded it when she
received her final pay. The appellant stated she was employed by
SRC for 168 days and that was sufficient time during which to
accumulate a total of 1,311 hours of work and - at $7 per hour -
that amounted to gross earnings of $9,177, as shown on her pay
statement.
[437] None of the schedules of the picking cards
prepared by counsel for the respondent - and entered as exhibits
- in respect of Gill Farms, Kliewer Farms and Monga Farms
disclosed the name of Parmjit Kaur Rehal. That is strange since
the evidence adduced in respect of the picking done at these
farms established beyond any doubt that picking cards were the
sole instrument by which production was recorded. Had the
appellant admitted that others used picking cards but - for some
reason or other - she was in a special category, there may have
been some basis to consider whether she had a separate
arrangement with SRC to pay her an hourly rate. As for her
contention that she worked until December 7 at the vegetable
farms, the evidence is clear that it snowed in Richmond from
November 16 to November 23 and again two days later. There was 3
cm. of snow covering the ground on November 20 and November 21
and it snowed again on December 2. There were freezing
temperatures - at ground level - as early as October 20. The
documentation provided by Min Ho Ahn - to Fontaine - showed the
last sale of produce from that farm was on November 24. The only
drivers mentioned by the appellant at any time - including in her
testimony - were Kang and Gill and only when informed by counsel
that neither one was employed after October 19, did she recall
being driven by Shindo. Earlier, she was clear in her testimony
that Kang drove her to work on her last day. On reflection, that
is probably true if - ironically - her last day
of work really was October 19, 1996 and not December 7 as she
claimed. The interpretation at the interview with Bowerman or
during the questioning by Mah - via the telephone - was performed
by the appellant's husband, a well-educated man who successfully
completed his examination - in English - in order to qualify as a
licensed life insurance agent. The answers given to Mah are clear
that only Gill and Kang drove her to work in Richmond. After
naming Kang, the appellant was asked whether she had any other
drivers and she named Gill. Although the appellant had not
identified Binder Chahal as her driver, Bernie Keays - Appeals
Officer - inquired into that aspect and determined that Chahal
was the last driver and had been laid off on November 16. One
would expect that if the appellant had been driven - by Shindo -
to the vegetable farms for 6 weeks, she would have recalled it
during the HRDC interview and not only when confronted with the
indisputable fact that the only drivers she ever named - until
that point - had been laid off by October 19. During
re-examination by her agent, the appellant reiterated Shindo had
driven her to work during the last part of her employment as well
as a male driver - Harjit, but not Harjit Gill - who had driven
her to work some days until her layoff on December 7. According
to a list of SRC employees which was included in the material
contained in one of the exhibits filed in these proceedings, the
only other Harjit employed by SRC was
"Harjit K. Grewal" and it is obvious "K" is an
abbreviation of "Kaur" which signifies this person was a female.
She also conceded her testimony - 10 minutes earlier - that she
had not been aware of several documents within Exhibit R-28, was
incorrect because she had seen a book of documents - similar to
Exhibit R-28 - prior to her Discovery and her husband had
translated/interpreted the contents to her.
CONCLUSION:
[438] I find the notes taken by Bowerman during his
interview with the appellant accurately reflect the words spoken
by her through her interpreter/husband and that the notes made by
Janet Mah of the answers provided - through the appellant's
husband - to her questions are also accurate. The appellant's
story about receiving cash payments is not consistent and she
could not recall the circumstance of the largest alleged payment
of $1,000 and identified both Shindo and Rana as the persons who
paid her the first $500 payment after she had pleaded for some
money. Under those circumstances, one would expect the identity
of the payer to be firmly implanted in the recipient's memory
bank. It is curious that the appellant's ability to recall the
amounts and timing of her cash payments were better in 2004 than
in July, 1997, only 7 months after they were allegedly received.
The appellant's version of events does not match the rest of the
evidence. If she was driven by Shindo during November and
December then why not say so earlier? The answer is obvious: she
had to rely on Shindo and a phantom male named Harjit in order to
account for the fact that the only two drivers she had ever
identified were proven to have been laid off before October 20.
Even on her application - tab 90 - for UI
maternity benefits, the location of her work "Richmond" was
crossed out and the nature of her work was described as having
been performed in a cannery and also as a farm worker cleaning
and packing vegetables in New Westminster. The appellant
testified that although her husband completed the application on
her behalf and she had signed it, that information was
incorrect.
[439] Overall, the testimony of the appellant is not
credible that she was paid by the hour for picking berries or
that she received some of her wages in the form of cash. I reject
the appellant's clumsy attempts to convince me she was driven to
work by Shindo and the mystery driver - Harjit - after Kang and
the real Harjit - Harjit Gill - had been laid off. The
appellant had a burden of proof to establish that she worked
until December 7 as alleged and that she is entitled to insurable
earnings greater than the amount recognized by the Minister. She
has failed to do so on both counts.
[440] The decision of the Minister insofar as it relates
to the period of employment is confirmed and I find the
appellant's insurable earnings are in the sum of $7,050.40.
GURCHARAN KAUR JOHAL:
RELEVANT BOOK OF EXHIBITS: R-20
MINISTER'S DECISION:
[441] The Minister decided the appellant was employed in
insurable employment for 17 weeks during the period from June 21
to October 12, 1996 and had insurable earnings in the sum of
$5,000. Pursuant to the subsequent concession by counsel for the
respondent, the Minister accepted that the appellant's insurable
earnings should be increased by the sum of $657.72 - attributable
to source deductions according to the Chart - and that the
correct amount of her insurable earnings is $5,657.72.
APPELLANT'S POSITION:
[442] The appellant claimed she was employed from May 26
to October 12, 1996 and had insurable earnings in the sum of
$7,784 - as stated in her ROE.
SUBMISSIONS:
[443] Narang submitted the appellant had provided
details of her work during a period which conformed with the
farming season - as relied upon by the Minister - and that she
had been paid some of her wages in cash, a normal occurrence
within the farming industry in the Lower Mainland.
[444] Counsel for the respondent submitted the Minister
had given credit to the appellant for insurable earnings based on
the $5,000 SRC cheque that had cleared the account. However,
counsel referred to the appellant's evidence that she received
the sum of $2,000 in cash which - if true - would have exceeded
the amount of her net pay - $6,755 - according to the pay
statement. Counsel submitted the appellant had not mentioned
being driven to work by anyone other than Harbhajan Singh Kang -
in a red van - either during her HRDC interview or subsequently
when completing Questionnaires. As a result, counsel submitted
the Minister's decision to choose a starting date that conformed
with Kang's first day of employment was reasonable.
ANALYSIS:
[445] Gurcharan Kaur Johal testified her husband -
Karmjit Singh Johal - arranged for her to work for SRC. She
stated she started work on May 26 and was joined by her husband -
in June - and they both worked together until their layoff on
October 12. She recalled riding to work the first day - and
for the next week - in a grey van driven by either Bant or Shindo
and then rode in a brown van driven by either Kang or Master. She
and her husband usually travelled to work in the same vehicle.
She recalled her pay was based on an hourly rate but did not know
the amount. The appellant described her first few days of work
involved preparing the land and planting seeds on the Chinese
Farms in Richmond. After that, she went to Khakh Farms in
Abbotsford and picked strawberries for 3 or 4 weeks. Later, she
picked raspberries and blueberries at other farms and ended the
berry season by picking the few remaining berries and then worked
for about a week at the Chinese Farm in Richmond picking
zucchini, corn and daikon. She described the method of picking
berries but stated she never used a picking card, although the
farmers weighed the flats and appeared to be using some method
for keeping track of their weight and number. She recalled that -
on a good day - she could pick 14 or 15 flats of
strawberries, 10 or 11 flats of raspberries and 15 pails of
blueberries. The numbers recorded on the schedules prepared from
information recorded on her picking cards at Gill Farms and Monga
Farms do not support that contention. Instead, at Gill Farms, the
schedule - Exhibit R-64 - shows she picked 3 flats on July
14 and 9 1/2 pails of blueberries on August 16. According to the
schedule - Exhibit R- 66 - based on her picking cards at Monga
Farms, she picked 12 full flats and 5 small baskets on July 28,
picked 9 full flats and 3 baskets on July 27 and 9 flats on
July 30. She testified Bant paid her cash 4 or 5 times
during the season - usually in a field - and that she received a
cheque at the end of the season in full settlement of her wages.
While completing a Questionnaire - tab 85 - during the rulings
process, the appellant stated she had been paid only by cheque.
In her testimony, she explained that because she knew she could
not prove receipt of the cash payments, she decided to refer only
to payment by cheque.
[446] During cross-examination by Johanna Russell,
Gurcharan Kaur Johal conceded that during her HRDC interview -
tab 95 - she named Kang as her driver and had stated that she
rode to work every day in the "same van". The appellant explained
that she should have told the interviewer she went to work the
first day - and for about a week afterwards - with
Bant and/or Shindo until Kang became her usual driver thereafter,
except for the 7 or 8 times during the season when she rode with
Master. When informed by counsel that Kang's first day of work
was June 21, the appellant replied that she had ridden with him
earlier than that. During the HRDC interview, Johal stated Bant
sent a red van to take her to work and denied ever riding in a
grey van. She admitted she had never ridden to work in the yellow
bus although the answers in her Questionnaire - tab 104 - stated
she rode to work "sometime van, sometime bus" and that the
van/bus driver was "always different driver". The appellant could
not explain why those answers had been provided. Even when shown
picking cards from Gill Farms and Monga Farms with her name on
them, together with other cards identifying her husband as a
picker, she stated she never used the cards while picking berries
even when working with Harbans Kaur Kang and other workers
who admitted the cards were used to record their production. The
appellant stated that when her daughter-in-law helped her to
complete the Questionnaires, information about receiving cash for
wages during the season had - somehow - been omitted. The
appellant stated she considered either Bant or Shindo to have
been her employer and knew they were related to Rana. As a
result, she did not concern herself with the source of the money
given to her or who had handed it over since they were all in the
same family.
[447] During her HRDC interview, the appellant failed to
mention that she performed any hoeing and planting work prior to
picking strawberries but when asked whether she started picking
strawberries in May, the appellant had responded "No, started
picking in June. We picked zucchini too in Richmond and we went
to Abbotsford and Chiliwack". During her HRDC interview, Gail
Buckland - ICO - carefully elicited answers from the appellant
about the identity of her driver and the type of vehicle used to
transport her to work. The appellant told Buckland that Kang
drove her to work in the same old van and that she had not ridden
in a grey van. Later, Johal told Buckland she rode "mostly" with
Kang and "mostly" with the same person. But, when asked directly
by Buckland if anyone else drove her to work, she replied "no
other driver" and went on to say she went home with Kang in "the
red van". When Buckland showed her a photograph of Kang, the
appellant recognized him and also identified Binder Chahal as a
SRC driver, although not her driver. She identified Bhan Singh
Sidhu as Master, a van driver whom she had seen a couple of
times. Until Discovery, the appellant had not mentioned any other
driver who took her to work between May 26 and June 20, 1996.
[448] With respect to the cash payments, at Discovery,
the appellant was positive Rana paid her cash at a farm. In her
testimony, she said it was Bant who had paid her. She could not
recall the amounts or the timing of any payments and did not keep
a record. I accept that Buckland's notes of her interview with
the appellant are correct including the notation that Johal
stated she had received a total of $1,200 to $1,500 in cash from
SRC. Johal's son - Jagdip - interpreted for her and was a
licensed electrician who had lived in Canada since 1989 and was
able to speak, read and write English. Even if the SRC pay
statement prepared by Bains Tax was accurate as to the amount -
$6,755 - of Johal's net pay, then if she had been paid $2,000 in
cash in addition to the $5,000 cheque, that would have amounted
to yet another overpayment by an employer that all the evidence
indicates had to be badgered before it would pay even relatively
small amounts of wages during the season.
[449] The appellant had the burden of proving that she
worked from May 26 to October 12, 1996 and that she had insurable
earnings in an amount greater than the sum - $5,657.72 - accepted
by the Minister. There is a slight possibility that she worked
earlier than June 21 because she may have ridden with Kang during
one or more days during his unpaid so-called training period but
that would not have moved her employment back more than a week or
so to a date at or near the beginning of the second week in June.
However, that is only speculation and the evidence viewed in
total cannot support a finding that the commencement date for her
SRC employment was other than the one - June 21 - chosen by
Minister. I find she has failed to establish her period of
employment commenced on May 26. Her testimony is unreliable in
many respects and she attempted to change her story - as she
deemed necessary - in order to slip through gaps in her overall
story that often were closed - to varying degrees - as a result
of being tested against her previous statements and/or testimony
- whether at Discovery or in Court - or when compared with her
previous statements at the HRDC interview or her answers to the
Questionnaires.
[450] The Minister's decision is confirmed as to the
appellant's period of employment - June 21 to October 12, 1996 -
and I find her insurable earnings are in the sum of
$5,657.72.
PRABHJOT KAUR MINHAS:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-26
MINISTER'S DECISION:
[451] The Minister decided the appellant was in
insurable employment with SRC for 12 weeks during the period from
July 14 to October 5, 1996 and had insurable earnings in the sum
of $1,633. In accordance with the Chart, counsel conceded the
insurable earnings should be increased by the amount - $224.85 -
attributable to the pro-rated source deductions - to the sum of
$1,857.85
APPELLANT'S POSITION:
[452] The appellant claims she was employed from July 14
to November 30, 1996 and had insurable earnings in the sum of
$7,840, as stated in her ROE.
SUBMISSIONS:
[453] Narang submitted the appellant had established -
through her testimony - that she worked during the period claimed
by her and had been paid most of her wages in cash.
[454] Counsel for the respondent submitted the appellant
had failed to adduce sufficient credible evidence to establish
she worked for SRC, as alleged, and that she could not explain
the numerous contradictions between her testimony and statements
previously provided to HRDC, CCRA and/or during her Discovery.
Counsel referred to the evidence proving that Harjit Gill was the
only person who drove the yellow bus and that he was laid off on
October 5, 1996. Since the appellant had advised the Appeals
Officer that she rode to work only in the school bus, the date of
October 5 was chosen by the Minister as the last day of her
employment. With respect to the amount of insurable earnings,
counsel submitted the appellant had provided contradictory
explanations about receiving cash and pointed out that her ROE
covered the precise period needed to qualify for
UI benefits.
ANALYSIS:
[455] Prabhjot Kaur Minhas testified she uses the name
Lally on an everyday basis and works as a residential care
attendant where she speaks English in the course of her duties.
After completing Grade 12 in India, she came to Canada in 1991
and took ESL instruction at different times over several years.
She worked as a farm labourer from 1991 to 1994, inclusive, in
Yarrow, British Columbia, before moving to Vancouver where she
worked as a dishwasher/janitor at a restaurant. She had a child
in February, 1996 and started working for SRC on July 14 after
her husband had telephoned the Bant/Shindo/Rana residence to
arrange for her employment. She testified she picked raspberries,
then blueberries and finished her employment - on November 30 -
by picking vegetables at two farms in Richmond. She testified she
was paid $7 per hour only when working on those farms but when
picking berries, was paid $4 per flat for raspberries and 25
cents a pound for blueberries. A system was in place to pay
pickers for a partial flat, and the appellant stated she was able
to pick 15-10 flats - on a good day - in order to earn between
$60 and $80. She estimated her blueberry production ranged from
300 to 350 pounds during the full part of the season and she
earned between $75 and $87.50 on those good days. She described
using the picking cards on which she wrote her name and explained
the manner by which the triplicate sheets were separated at the
end of the day and how they were punched at the scale. She
retained her copy of each card until the end of the season. The
appellant testified she had always been paid by the flat and/or
pound during her 4 years as a farm labourer and assumed the same
system would be utilized by SRC. While working for SRC, she also
worked - 6:00 p.m. to 11:00 p.m. - as a dishwasher at a
café from July 17 to September 11 when she was laid off
because the business went broke. The appellant testified she rode
to work - her first day - with 40 or 50 people in a bus and
thereafter rode in the bus except on those occasions when Shindo
drove her - in a blue van - or if she used her own car. After one
month of working, the appellant had not been paid and asked for
some money. She stated cash was received on 4 or 5 occasions
throughout her employment when her husband went to Shindo's house
to collect wages on her behalf. She received one cheque -
tab 90 - in the sum of $1,633 and cashed it at the TD bank on
October 3, 1996. Narang showed her the "I Cash Money Give"
purported cheque - in the sum of $4,000 - and the appellant
stated the signature thereon, written as
"PraBhjot K. Minhas" was not her signature because she
does not insert a capital "B" in the middle of her name and
pointed out her usual signature as it appeared on her application
for UI benefits at tab 95. When completing the Questionnaire
- tab 99 - on November 4, 1999 with the
assistance of her husband, she stated her pay was $6.50 an hour
for vegetable work which she assumed had been the minimum wage at
that time and that she was paid on a piecework basis for picking
berries. In that document, she stated she rode to work in a
school bus driven by "Surjit Gill." The appellant stated she
considered SRC owed her about $1,100 wages at the end of the
season when she was issued her ROE and still has not been able to
collect that amount from Shindo.
[456] During cross-examination by Selena Sit, Prabhjot
Kaur Minhas stated she took her copies of picking cards to
Shindo's house to be used during the final accounting. The
appellant was referred by counsel to her responses in the
Questionnaire - tab 92 - that she had been driven to work - the
whole time - in a school bus driven by "Harjeet" and that this
answer was different than the one given during her direct
examination, namely, that her only drivers were Rana and Shindo.
When shown a picture of Rana, the appellant stated that, although
she had seen that person, he was not her bus driver. The
appellant accepted counsel's suggestion that she must have been
mistaken earlier and that the male driver - referred
to as "Harjeet" in her Questionnaire - was Harjit Singh Gill.
However, in the Questionnaire, the appellant had stated that Gill
was "mostly" her driver but that "sometimes" there was a
different driver whose name she did not know. At Discovery, the
appellant testified that Harjit Singh Gill had been her only bus
driver but that she had ridden - once or twice - in a SRC van
driven by a male driver whose name she could not recall. She was
clear - at Discovery - that she had been picked up by a yellow
school bus on her first day of work and rode to work every day
thereafter in that same vehicle, except when picked up in a van.
During her Discovery, she confirmed that the school bus was
always driven by the same man and that his name was "Harjit
Singh." In response to being confronted with those answers given
at Discovery, the appellant stated she had meant to say that she
rode in a SRC van once or twice per week, and not just once or
twice during the entire season. When counsel pointed out that
Harjit Singh Gill was laid off on October 5 and could not have
driven her to work thereafter - when she was allegedly working on
the vegetable farms in Richmond - the appellant stated she rode
to work - at Mike's Farm - in a yellow bus that was
driven by different people from time to time. As for her last day
of work on November 30, the appellant stated she had picked
zucchini. When applying for UI benefits, the appellant did not
attribute her layoff to shortage of work but stated in her
application that it was due to her pregnancy and the fact she
experienced pain "while bending over."
[457] At Discovery - concerning the " I Cash Money Give"
purported cheque in the sum of $4,000 - the appellant had
identified that cheque and acknowledged it was her signature on
the bottom line. Then, she switched from English to Punjabi and
provided an explanation through the court certified interpreter,
as follows: Shindo made her sign the cheque - prepared in that
manner - in order to acknowledge that she had already paid the
appellant that amount of cash for her wages, which is why the
cheque had " I Cash Money Give" written at the top. Then, Minhas
stated that cheque was signed on September 7, 1996 at Shindo's
house. The appellant was confronted with these answers from her
Discovery which contradicted those given - during her direct
examination - that she had not seen that purported cheque until
it was shown to her in Court. During her HRDC interview, she had
taken the same position, telling Ted Bowerman - ICO - that she
did not know what that curious piece of paper represented and
that the signature thereon was not her own. It should be noted
that until testifying before me, the appellant had never
mentioned that SRC still owed her about $1,100 in wages for her
work. The following calculation is interesting. Since the only
amount proven to have been paid - by cheque - was the sum of
$1,633, when one adds in the $4,000 amount represented by the
purported cheque, the resulting total of $5,633 is $1,027 less
than her net earnings of $6,760 as shown on her payroll
statement. Therefore, unless the appellant has some explanation
for that gap, there would be a glaring deficiency between her
entitlement and the amount received. The appellant stated that
she filed her income tax return - prepared by her husband - on
the basis of her T4 slip showing gross earnings of $7,840 even
though she had only received - according to her
calculations - the sum of $5,633. In her testimony, the
appellant stated she never deposited any cash payments to her
bank account and used the money to pay rent and other bills. She
did not regard the method of payment of wages - by SRC - unusual
because other farm employers had done it that way during her
previous employments as a farm labourer.
CONCLUSION:
[458] The first matter to be decided is whether the
appellant worked until November 30, as claimed. First, it is
obvious that all of her earlier answers tied her employment to
the school bus driven by Harjit Gill. The evidence is conclusive
that he was the only person who drove that school bus during
1996. He was laid off on October 5, 1996 and went to India the
following week. He could not have driven her to Richmond after
that and no other person was identified as the driver of the big,
yellow bus. Her statements at Discovery contradicted those given
in Court and only during her direct examination did she name
Shindo as one of her drivers. Even at Discovery, the driver of
the van that she rode in once or twice was identified only as a
male. The appellant linked herself to Harjit Gill on numerous
occasions by identifying him as the bus driver - either "always"
or "mostly" - depending on the forum and there are numerous
contradictions in respect of her claim about riding to work in a
SRC van. The weather conditions were such that it is highly
unlikely she was picking zucchini on November 30. According to
the evidence of Sweeney, that crop would have been picked before
then in accordance with normal industry practice and - in any
event - would not have survived the frost and would not have been
harvested while covered with snow especially in late
November.
[459] The appellant has not presented sufficient
credible evidence to permit me to find that she was employed by
SRC any later than October 5, 1996, as decided by the
Minister.
[460] The next question to be answered is whether the
appellant had any insurable earnings greater than the sum
conceded by counsel for the respondent. With regard to the
purported cheque in the sum of $4,000, at her Discovery - in 2001
- the appellant not only stated she recognized it, but
acknowledged her signature thereon and subsequently provided an
explanation that she signed it at the request of Shindo to create
a sort of receipt for cash payments made to her between July 14
and September 7. It is doubtful she could have earned that sum in
less than two months because she did not work every day and
earned between $60 and $87.50 during her best days. At best, she
may have worked 50 days during that period and many days would
have produced less income due to the state of the berry crop
either at the beginning or the end of a particular picking cycle.
She did not provide credible evidence concerning the receipt of
cash payments. The appellant is a well-educated, articulate,
hard-working, young woman who held down two jobs to support her
family. Her husband is a university graduate with two degrees who
could only find work driving taxi. It is impossible to believe
that she would not have remembered - during her
testimony - details provided earlier - at Discovery - concerning
that bizarre "I Cash Money Give" cheque. One could understand her
answer - in Court - that she had never seen such a peculiar
document if she had not testified earlier that she had seen it
and had acknowledged her signature thereon. There are too many
inconsistencies throughout in her testimony to permit me to
accept that she was paid any money other than the sum of $1,633,
represented by the cheque that cleared the SRC bank account. It
should not be that difficult for a worker to recall basic details
of a job - however boring - when questioned about it within a
year or so. I fail to understand why this appellant was unable or
- perhaps - unwilling to extricate herself from such a web of
contradictions, inconsistencies and outright fabrications by
acknowledging the existence of previous contradictory statements
and providing some reasonable explanation. The only conclusion I
can draw, having regard to all the evidence, is that she did not
work for the period stated in her ROE and did not receive any
wages except for the amount of the cheque that was cashed at the
TD bank. Her story - overall - is not credible with respect
to working on the vegetable farms until November 30 and/or
receiving cash payments from Shindo from time to time. The
appellant is not entitled to any further relief other than as
conceded by counsel for the respondent with respect to her
insurable earnings, which I find are in the sum of $1,857.85.
GURBACHAN SINGH GILL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-16.
MINISTER'S DECISION:
[461] The Minister decided the appellant was not in
insurable employment with SRC during the period from September 1
to December 31, 1996.
APPELLANT'S POSITION:
[462] The appellant claims he was employed during said
period and had insurable earnings in the sum of $9,680 as stated
in his ROE.
SUBMISSIONS:
[463] Narang submitted SRC had issued 4 cheques to the
appellant - totalling $8,200 - and that those cheques were
negotiated through the employer's bank account and should be
recognized by the Minister as constituting insurable earnings
during the course of his employment as a driver for SRC - albeit,
under somewhat strange circumstances - since it appeared the
workers did not know him by his full name.
[464] Counsel for the respondent submitted the appellant
had not established that he was engaged under a contract of
service, as alleged or at all. Overall, counsel submitted the
testimony of the appellant was riddled with unexplained
inconsistencies and that his description of his employment duties
was impossible to believe.
ANALYSIS:
[465] Gurbachan Singh Gill testified he is currently
employed as a security guard and that he was employed by SRC as a
van driver in 1996. In March of that year, he obtained his Class
4 Driver's Licence because he no longer wanted to work as a farm
labourer as he had done in 1994 and 1995. During those years, he
and his wife worked together picking berries and on vegetable
farms. He stated they were paid by the weight or number of flats
for the berries and by the hour for working with vegetables. Gill
testified that after finishing ESL classes at the end of August,
he began working for SRC on September 1. He stated he was hired
by Rana to work as a van driver at a salary of $10 per hour.
During the course of his employment, he negotiated SRC cheques
totalling $6,300 which were deposited to a joint account at
Canada Trust. He also signed his name on the reverse of an "I
Cash Money Give" purported cheque in the sum of $2,000. Gill
stated that on one occasion, he received a cheque in the sum
of $1,900 that was returned NSF and when he told Rana about it,
Rana blamed it on a cash flow problem and promised the cheque
would be redeemed. With respect to his duties as a van driver,
Gill maintained that he left his house - in Surrey - each
morning, took public transit to Vancouver to get the van - stored
at Bant's house - drove workers to farms in Richmond where he
spent the day until quitting time, drove them home, returned the
van back to Bant's house, and then rode the skytrain (LRT) to his
residence in Surrey. On those occasions when he did not follow
this procedure, Gill testified he obtained a ride from his
daughter or his son - Ravjit Gill - or rode with
Harbhajan Singh Kang. Gill stated he was not required to
perform any farm labour but had certain duties to perform with
respect to the operation and maintenance of the van. He described
working 7 days of week and named 4 or 5 farms where he had
delivered 10-12 workers in September but only 4 or 5 in December
because it had snowed and there was less work. Even though it was
not part of his job description, Gill stated he handed out
picking cards sometimes and wrote the name of the picker on the
card. In terms of his passengers, Gill specifically recalled
transporting Taro Kaur Bassi, Prabhjot Kaur Minhas and a man
known to him as Didar Singh. Gill testified he recalled attending
an interview at an HRDC office where he was questioned by
Bowerman. Gill stated he was threatened with the loss of his
Driver's Licence, as well as his licence to work as a security
guard and told he could be subject to deportation as a result of
the problems arising from his employment with SRC. He told
Bowerman that none of his relatives had been employed by SRC even
though his son - Ravjit Gill - worked there and supposedly drove
him to Vancouver - a couple of times - to pick up the van at
Bant's house. Gill explained that he did not regard a son as a
relative. He also characterized his son as someone who was "less
than truthful." The appellant's completed Questionnaire - tab 103
- indicated he rode to work "sometimes van, sometimes bus." Gill
explained that this answer was incorrect because he was either
driven to Bant's house by someone or took public transit from
Surrey - a 45-minute trip - in order to collect the van. Other
answers in the Questionnaire stated he worked in the fields from
early morning to late evening. Gill explained he had not read
over the Questionnaire before signing it and trusted the people
at PICS to have filled it out correctly.
[466] During cross-examination by Johanna Russell,
Gurbachan Singh Gill agreed he should have explained - at
Discovery - that even though his son - Ravi - owned the Hyundai
Excel, it was registered in the name of his daughter - Amrit -
for insurance purposes. Gill stated he could not recall his
conversation with Janet Mah but agreed the answer - recorded in
her notes - that he picked up workers in Vancouver and Surrey and
drove them to a farm in Richmond - near a golf course - was
correct. Also included in Mah's notes were statements - by Gill -
that he "picked berries and vegetables" and that Ravjit Gill was
in India and - therefore - could not speak with her. The
appellant denied making those statements. Regarding the van that
he used to drive workers, Gill stated he did not know the make or
model and did not pay attention to learning the names of his
passengers because Rana had informed him there was no need to
know that information because some of them might be receiving
benefits and/or payments from welfare or UI or a pension of some
kind. During the interview with Bowerman, Gill could not remember
the names of any of his passengers but when answering the
Questionnaire - tab 103 - he named several people, including Taro
Kaur Bassi and Prabhjot Kaur Minhas whom he knew as Lali. During
his employment, Gill estimated he kept the van at his home - in
Surrey - between 10 and 15 times. He identified Harbhajan Singh
Kang, Binder (Chahal) and Harjit Gill as SRC drivers as well as
Bant, Shindo, another male and Rana, whom he said drove from time
to time. When counsel confronted the appellant with portions of
testimony of SRC workers - and/or statements made by them during
HRDC interviews - to the effect that none of them had ever
mentioned him as their driver, Gill replied they were all wrong
and explained the confusion probably existed because he -
Gurbachan - was sometimes referred to by the nickname "Bajan",
also used by many workers to identify Harbhajan Singh Kang. Gill
admitted that although he might have purchased fuel for his van
at some point, he preferred to stick with his earlier statements
that he "never" fuelled that vehicle. He agreed he rarely rode
with Ravi to pick up the van at Bant's house because they did not
have a good relationship. With respect to receiving wages, Gill
testified he received between $2,000 and $2,200 in cash in
addition to the sum of $6,300 in cheques. When counsel pointed
out that - at Discovery - Gill stated he received "approximately
$3,000, $3,300 or $3,400 in cash", he replied those sums had been
estimates and that he had a specific recollection of counting out
either $2,000 or $2,200 - in various denominations of bills - and
putting the money into his pocket.
[467] During re-examination by his agent, Gill stated he
came to suspect some passengers were hiding or disguising their
identity for a variety of reasons and that several were working
without appearing on any employer records.
[468] The appellant appeared to have a special
relationship with Bant and - through him - with SRC because he
did not have to pick berries, hand out and collect picking cards
on a regular basis, supervise workers or refuel the van. Gill
explained that his health did not permit him to perform hard work
and that he had a particular rapport with Bant because he kept
him supplied with liquor that was always available in the van
during the day. As a result, he was free to sleep, read
newspapers, go for walks and listen to music. The evidence
adduced during these proceedings established that other drivers
picked berries - confirmed by picking cards - and assisted in
weighing berries and punching picking cards. During an exchange
with Gill at the end of his cross-examination, he explained his
philosophy - learned in Amritsar, Punjab - to me, concerning the
practice of supplying liquor to individuals in order to get them
to do something and the special bond created between people who
have eaten and drank together, to the point that "you can
actually go and die for that person, or you can kill any other
person ..."
[469] The appellant's story about travelling from Surrey
- most of the time by public transit - to Vancouver to pick up a
van in an alley behind Bant's house is a curious tale indeed. If
he rode with his son - Ravjit - it was only once or twice and it
was illogical that he would take the LRT to Vancouver when every
other driver kept his van at home. The total time needed to go
from Surrey to Vancouver in the morning and return at night is
more than 90 minutes, without counting time waiting for the LRT
to arrive. During his HRDC interview, he stated the only method
he used to collect the van was by riding to Bant's house with
Bhan Singh Sidhu. One also has to wonder why Gill was driving van
until December 30 when all other SRC drivers - including Shindo -
had been laid off before the end of October, except for Binder
Chahal who remained until November 16. As discussed earlier, the
harvesting of vegetables would have been completed by
mid-November at the latest and it is not reasonable to conclude
there was any farming work done on the vegetable farms in
Richmond as late as December 30. According to Gill, the only
driving he did was to take workers to and from Richmond. During
HRDC interviews, no other driver ever mentioned Gurbachan Singh
Gill as a fellow driver. There was evidence that the only drivers
who lived in Surrey were Kang and Master. Kang - when testifying
- attempted to help out the appellant by stating he saw Gill
driving a SRC van to Khakh Farms during strawberry season as well
as in Abbotsford during raspberry season. The problem with Kang's
testimony is that even Gill does not purport to have started
working for SRC until September 1, 1996. Perhaps Kang is a true
visionary in the sense that he possessed the uncanny ability to
predict that Gill would be creating a fantasy employment and - at
some point - might need a lifeline. Sukhwinder Kaur Toot, an
appellant who was sitting in Court while Gill was testifying
about driving workers to vegetable farms in Richmond, later
testified she had never seen Gill before. None of the appellants
in these proceedings ever named Gill as his or her driver,
whether during HRDC interviews, when completing Questionnaires,
or while testifying at Discovery or in these appeals. In
addition, none of the 100 workers interviewed by ICOs ever
mentioned Gill as their driver. The difficulty faced by the
appellant is that he claims to have been employed as a van driver
for 4 months, hauling up to 15 people at a time in his vehicle,
charming the ladies by playing tapes of religious music, walking
about the fields, handing out picking cards from time to time,
and yet not one person identified him as a van driver or worker -
of any sort - for SRC during this extended period. The attempt by
Kang to give Gill a helping hand by saying he saw him driving
during June and July was just pathetic. Perhaps, its patent
falsity was deliberate at some level because as Sigmund Freud is
alleged to have observed, "there are no accidents." It is obvious
Gill knew he was faced with the problem that no appellant was
going to identify him as his or her driver and that
- previously - he had never been named as a
driver by any other SRC worker. However, Gill was not prepared to
admit defeat and came up with the novel - albeit,
silly - ruse that people were confused because he was known by
his nickname "Bajan" - a contraction, somehow - of Gurbachan and
that workers had confused him with Bahjan Kang. In a way, that
invented bit is so bad it is almost funny, like a
notoriously-awful, Grade B movie that sticks in one's memory for
no apparent good reason. Gill had other problems keeping his
story straight, such as the colour of the van (grey) he
apparently drove for 4 months, which - at the HRDC interview -
was light brown. Information gathered by HRDC - not challenged by
any appellant - was that only Binder Chahal drove the grey
van.
[470] The appellant is an intelligent man with a good
command of English both spoken and written. He passed his Class 4
Driver's Licence examination - in English - and obtained his
licence as a security guard by passing two tests, again in
English. He was able to read the answers contained in his
Questionnaire prior to sending it back to CCRA. I reject Gill's
explanation that he gave contradictory and/or inconsistent
answers to Bowerman because he was "threatened". Gill admitted he
was not intimidated at the outset when warned about the need to
tell the truth and the possible imposition of penalties for
knowingly failing to do so, although he did not like the "tone"
of that admonition. Bowerman testified he told Gill about the
possible consequences in the event fraud charges were laid and
convictions obtained against persons who had participated in an
illegal conspiracy to defraud the UI system and they included
loss of a licence - such as one held by security guards - and
that convicted persons could be subject to deportation.
CONCLUSION:
[471] The appellant has failed to establish that he was
employed by SRC during any period whatsoever. His testimony is
not credible. Even fiction - in order to be marketable - has to
have a certain logic to it, because the story has to hang
together until the end if the author wants to retain the reader's
interest. When writing Gulliver's Travels, Jonathan Swift used a
mechanism known as corroborative verisimilitude, which demands
that when spinning a whopper of a yarn, you must ensure there is
consistency and proportion throughout - even when providing
seemingly-petty details - in order to buttress the central theme
so it can be accepted as true. Gill is no Jonathan Swift. I do
not accept the appellant's testimony that he drove a van for SRC
and the evidence as a whole does not support this contention.
Even if he had been so employed, his evidence about receiving
cash in addition to the $6,300 in cheques, is not reliable. I
suppose the question remains: why would SRC pay Gill the sum of
$6,300 in cheques? The answer is: I do not know except that it
had nothing to do with any employment. There is no requirement on
the part of the respondent to resolve this issue since the onus
is on the appellant to demonstrate there was valid employment and
that payments received from the purported employer were in
respect of said employment. The appellant has failed on both
counts and the decision of the Minister is confirmed.
SUKHWINDER KAUR TOOT:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-31
MINISTER'S DECISION:
[472] The Minister decided the appellant was employed in
insurable employment with SRC for 18 weeks during the period from
May 26 to September 30, 1996 and had insurable earnings in the
sum of $5,000. Counsel for the respondent conceded the
appellant's insurable earnings should be increased by the amount
- $658.19 - of pro-rated source deductions and that the correct
amount was $5,658.19.
APPELLANT'S POSITION:
[473] The appellant claimed she was employed from April
14 to October 12, 1996 and had insurable earnings in the sum of
$7,294, as stated in her ROE.
SUBMISSIONS:
[474] Narang submitted the testimony of the appellant
and her son - Satnam Toot - established that the confusion
over dates of employment had arisen due to the difficulty in
interpreting her answers since she did not know the months of the
year and was unable to count in either English or Punjabi. Narang
submitted the evidence established that the appellant started
work on April 14 and that despite her illiteracy and poor memory
she was entitled to receive recognition for her work both in
terms of duration and insurable earnings.
[475] Counsel for the respondent submitted the appellant
had failed to produce any credible evidence to establish she had
worked during the period claimed or that her insurable earnings
were greater than the amount currently recognized by the
Minister.
ANALYSIS:
[476] The appellant finds herself in the unenviable
position of being illiterate in both Punjabi and English as well
as being unable to count or to possess an ordinary sense of
months, years or dates in order to fix - readily - a point in
time in relation to an event. She testified that she worked for
Bant and Rana picking 3 different crops of berries. Prior to
picking strawberries, she stated she worked hoeing and cleaning
out grass around plants. At one point during berry picking
season, she went to a vegetable farm and picked lo bok and
turnips. She testified that each day she worked, she rode to work
in a van driven either by Harbhajan Singh Kang or Master. She did
not know Gurbachan Singh Gill. She stated her wage was $7 per
hour for all types of work and her husband collected her wages
from Shindo and/or Rana. She recalled working at Khakh
Farms and at other farms in addition to the vegetable farm in
Richmond. Regarding her berry production, the appellant stated
she could fill 5 or 6 pails of blueberries a day at the start of
the season, increasing to a maximum of 8 during peak season and
then dwindling to only two pails near the end. Again, it is
apparent that the farmer paid SRC $5.35 per pail, so the maximum
and minimum amounts the company earned from her efforts were
$42.80 and $11.70, respectively, during a period when SRC and the
appellant claimed she worked 8 hours every day at $7 per hour - a
daily cost of $56 - without counting source deductions for EI/UI
premiums, CPP contributions and holiday pay. Sukhwinder Kaur Toot
had no recollection of having attended Discovery and could not
recall any aspect of her interview with Janice Morrow at HRDC.
The appellant stated she received a cheque - tab 90 - dated
August 20, 1996 and recalled she and husband were driven to the
TD bank by Harbhajan Singh Kang where they cashed the cheque. She
denied that any portion of that money had been returned to Bant
and/or Shindo and/or Rana.
[477] The appellant's son - Satnam Toot - testified and
described attending the HRDC interview and interpreting on behalf
of his mother. He complained about the manner by which the
interview was conducted and stated that when his mother was
unsure whether she had worked until the 9thor the 10th month, she
was - in effect - ordered - by Buckland - to "pick one." He
prepared a Statutory Declaration - in Punjabi - and stated
therein that the appellant had worked for SRC only until
September instead of October 12, the date shown on her ROE.
Satnam Toot stated he read the declaration to his mother - by
summarizing it - and formed the opinion that she agreed it was
accurate. Satnam Toot stated that the appellant told Buckland she
had worked for Rana from April to September, and that is what he
wrote - in Punjabi - in the declaration. The rulings
Questionnaire contained the statement that the appellant stopped
work "in the 9th month, September". The appeals Questionnaire
stated she picked vegetables during her first week of work. It
also indicated she was paid $7 per hour for picking berries even
though she and her husband - Swarn Singh Toot - had used picking
cards. She recalled picking blueberries during the last two weeks
of her employment but did not know the name of the farm or
whether it was the Chinese Farm or Mike's Farm.
[478] Satnam Toot also testified that the male
interpreter - Mohinder Singh Herar -
had intervened during the interview and advised the appellant
that she should admit what she knew about the SRC scheme because
HRDC "knew everything" and she could be deported. Both Buckland
and Herar testified this exchange never took place. Herar is a
certified court interpreter and explained that his role during
any interpretation session is merely to act as a conduit between
the parties to interpret the language and - therefore - remove
the barrier to communication. During his long career at HRDC, he
was never employed as an ICO and did not conduct investigations.
With respect to this point of contention, I accept the version of
Buckland and Herar.
[479] Satnam Toot stated he was certain his mother
started work before the important Indian festival - Vaisakhi -
which was celebrated on April 13. Ordinarily, this would be a
significant point of reference by which one could link the
occurrence of another important event, such as starting a new
job. The problem rests in the lack of credibility on the part of
this witness ranging from his description of the HRDC interview -
including his allegations of misconduct by Herar in threatening
his mother - and his claim that Herar's ability to interpret from
Punjabi to English was marginal, to the point where he considered
Herar was no better at speaking English than he had been - in
1998 - when not yet at his current level of proficiency. The
evidence established that the appellant and her husband used
picking cards every day and Swarn Singh Toot stated - during his
HRDC interview - that he took them home every night. Satnam Toot
testified he never saw a picking card at home. Though he saw his
parents with some cash from time to time, he could not confirm
that they had received these funds from SRC for their wages.
There is no other evidence to support the appellant's allegation
that she was paid cash and the only form of payment mentioned in
the Questionnaire - returned to Keays - was by cheque. The only
drivers named by the appellant during her testimony were Kang and
Master and neither of them started working for SRC before May 26,
1996, the day Master was hired. As I commented to the appellant
during her testimony, it seemed odd that she would not be able to
recall additional details of her farm work - as a labourer -
because she had never done that sort of work in India where her
family owned their own farm and had male workers to perform
outside work while she managed the family home. The appellant
blamed her lack of recall on the passage of time. Her son -
Satnam Toot - testified his mother suffered from lack of memory
and that it seemed to be getting worse.
CONCLUSION:
[480] The appellant has failed to demonstrate that she
started working for SRC on April 14 and worked until her layoff
on October 12, 1996. It is highly unlikely she was working on any
vegetable farms at that time and if she was so employed then she
could not have been driven by either Kang or Master - her only
drivers - because they were not on the payroll at that point. It
is also not probable that she worked until October 12 because
blueberry season was over by the end of September. A review of
the schedules of picking cards from Monga Farms, Kliewer Farms
and Gill Farms does not disclose any picking after September 15
and the overwhelming majority of entries only record production
up to the first few days of September, after which the picking
was probably limited to cleaning up the remaining berries.
[481] There is no satisfactory proof that the appellant
received any money in cash. There is a strong inference that
after being driven to the bank by Kang, the money received - from
cashing the $5,000 cheque - was handed back to Shindo and/or Bant
and/or Rana in exchange for her ROE. However, the Minister has
not relied on that evidence and conceded the appellant had
insurable earnings in the sum of $5,658.19 as a result of her
employment with SRC from May 26 to September 30, 1996. Having
canvassed all the relevant evidence, I conclude I am unable to
grant any relief to the appellant beyond the additional amount of
insurable earnings conceded by the Minister.
DIDAR SINGH MEHAT:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-25.
MINISTER'S DECISION:
[482] The Minister decided the appellant was employed in
insurable employment with SRC for 15 weeks from June 10 to
September 21, 1996 and that his insurable earnings were nil.
Counsel for the respondent conceded the appellant's correct
period of employment was from June 10 to November 9, 1996 but
continued to maintain that he had no insurable earnings.
APPELLANT'S POSITION:
[483] The appellant agrees the Minister's decision is
correct with respect to his last day of employment but claims he
started work on June 2, 1996 and had insurable earnings in the
sum of $7,056.
SUBMISSIONS:
[484] Narang submitted the appellant is an uneducated
man who was confused about many aspects of his employment but had
been paid in cash for his work.
[485] Counsel for the respondent submitted one of the
main problems with the credibility of the appellant was that he
testified he had been paid by the hour for picking berries even
though he used picking cards every day and, as an experienced
farm worker, was well aware that pickers were remunerated only by
weight and/or flats. Counsel submitted further that the only
evidence of payment of wages was the worthless "I Cash Money
Give" purported cheque.
ANALYSIS:
[486] First, I will deal with the issue whether the
appellant has proven that he started work on June 2, 1996, rather
than on June 10th, the date chosen by the Minister. The appellant
testified his first task was picking strawberries. The evidence
of Sweeney and others adduced during these proceedings favour -
by a wide margin - a finding that - in 1996, due to weather
conditions - the earliest date strawberries were ready to be
picked was June 10. At Discovery, the appellant stated Bant
telephoned him about the 8th or 9th day of the 6th month (June)
to tell him the strawberries were ready and he recalled starting
work a couple of days after that. He was unable to name any other
SRC worker who worked with him on June 2. There is no basis on
the evidence to conclude that the appellant started working
earlier than June 10, 1996.
[487] The other matter at issue is whether Didar Singh
Mehat proved he had insurable earnings as a result of his
employment with SRC. He testified that even though he and his
wife had worked for Bant during previous seasons and had been
paid by the pound or flat in 1996, they told him they would only
work if paid an hourly rate of $7. Mehat stated he thought this
rate had been increased to $8 towards the end of his employment.
He testified that when he discovered other SRC workers were being
remunerated on a piecework basis, he confronted Bant and Shindo -
at their residence - and reminded them that he and his wife were
supposed to be paid on an hourly basis and that they agreed to do
so. He testified that he and his wife - the better picker of the
two - could remember the number of strawberry flats picked each
day and upon returning home recorded the number on a calendar.
However, by the time they began picking raspberries, the
appellant stated they were satisfied SRC was paying them an
hourly wage. The hours per day were always the same but they
marked down - on a calendar - the days worked because they took
some days off during the season. At the end of the season, the
calendar was taken to Bant's house for the settling-up meeting
and he assumed Bant and Shindo had taken the number of strawberry
flats picked by him and his wife during that first part of the
season and converted it to hours. Mehat testified that it was
harder to get money from Bant for wages in 1996 than in the past.
When working on the vegetable farms during a slow part of the
berry season, he found employment from September 22 to October 26
with another employer who operated a cranberry farm. He testified
he did not understand the purpose of the "I Cash Money Give"
purported cheque and attempted to obtain some receipts from
Shindo in order to prove to HRDC that he had received cash during
the season in small amounts of $300 and $400 on several
occasions. During his testimony, the appellant testified that the
initials "D.S." on the purported cheque were not written by him.
The so-called receipts allegedly obtained from Shindo for the
purpose of proving SRC had paid him two payments of $500 each are
worthless since they were signed by himself and not by anyone
from SRC. Further, Mehat explained to the ICO during the June 9,
1998 HRDC interview that Rana had given him two advances -
each in the sum $500 - in January and February, 1996, because his
daughter had been married in December, 1995 and he was short of
money. During the same interview, the appellant said he deposited
a $6,000 cheque - received from SRC - to his bank account at
Richmond Savings and Credit Union but the cheque was NSF so he
took it to Rana and obtained $6,000 in cash to replace it. The
bank statements on that account do not record this alleged
transaction. During his testimony, the appellant changed his
story and stated it had been his wife and daughter who had gone
to Shindo's house to obtain cash in exchange for the $6,000 NSF
cheque. Then, he stated the entire story about an NSF cheque had
been told to him by members of his family and he had just assumed
it was the one for $6,000.
[488] The appellant testified he did not take picking
cards to Rana's house at the end of the season but - later -
admitted he had taken the ones issued to him and his wife during
the first week or so when they picked strawberries. However,
during direct examination, he had testified that he had no need
to bring picking cards home because he and his wife could
remember the number of flats they picked each day. There were
some cheques issued by SRC to the appellant's wife but when
reviewing those amounts, if the appellant's claim is true, then
SRC overpaid them - as a couple - by thousands of
dollars. This is hard to believe coming from an employer that
workers had to beg, plead and pester to be paid even small
amounts of wages already earned.
[489] Because the Minister was satisfied the appellant
was employed from June 10 to November 9, 1996, I am reluctant to
find that he was not remunerated for his work. He had worked for
Bant in the past and had been paid and worked for other employers
as well. His wife was paid and the Minister recognized a
certain amount of insurable earnings from her employment with
SRC. The problem is that there are numerous inconsistencies in
the appellant's testimony - and in his Discovery - in addition to
contradictory statements made during his HRDC interview or within
the Questionnaires. What amount could I find had been paid to
him, albeit in cash? His testimony is not believable on so many
other points that it makes it extremely difficult to grant him
any credibility on this issue. I cannot understand why the
appellant would tell Jeannie Suric - during an HRDC interview -
that he deposited pay cheques to his Credit Union account on
Cambie Street and he could not explain that during his testimony.
It is obvious that he was not paid by the hour for picking
berries. When his daughter admitted to Suric that she could not
vouch for her father's employment - in 1996 - because she was
living in Edmonton at the time, the appellant dismissed that
statement as being unreliable and stated his daughter did not
know much because she had returned from Edmonton after only a
short time and lived at home that summer before getting married
on December 25, 1996. That bit of information is interesting
because he testified earlier that the reason he received a total
of $1,000 in cash from Rana in two payments during January and
February, 1996 - several months before he started working for SRC
- was because he was broke due to his daughter's recent wedding
in December, 1995. The onus is on the appellant to prove his
case; there is no burden on me to solve the many unresolved
riddles and mysteries in this bizarre tale.
CONCLUSION:
[490] The appellant has failed to prove that he had any
insurable earnings as a result of his employment with SRC from
June 10 to November 9, 1996.
GURMAIL SINGH GILL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-17
MINISTER'S DECISION:
[491] The Minister decided the appellant was employed in
insurable employment with SRC for 17 weeks during the period from
June 23 to October 19, 1996 and had insurable earnings in the sum
of $3,151. In accordance with the Chart, counsel for the
respondent conceded this sum should be increased by the amount
- $433.11 - attributable to pro-rated source
deductions and that the appellant's insurable earnings are
$3,584.11.
APPELLANT'S POSITION:
[492] The appellant claimed he was employed from June 23
to November 2, 1996 and had insurable earnings in the sum of
$7,448.
SUBMISSIONS:
[493] Sadhu Tiwana, agent for the appellant, submitted
the appellant was entitled to recognition of an expanded period
of employment and greater insurable earnings even though there
were aspects of his testimony that were somewhat confusing.
[494] Counsel for the respondent submitted the appellant
failed to establish on a balance of probabilities that he worked
after October 19, 1996 or that he had insurable earnings in
excess of $3,584.11. Counsel referred to numerous instances where
the appellant's testimony was contradictory and unresponsive to
the issues.
ANALYSIS:
[495] The appellant testified he received two cheques
for wages in 1996 but because he did not have a bank account,
cashed them both at the employer's TD bank, one on October 30 and
the other on November 30, 1996. He stated he was paid most of his
wages in cash but had no way of proving it. He mentioned a cheque
which he thought had been returned NSF but when shown the " I
Cash Money Give" purported cheque in the sum of $4,000, agreed it
was the one to which he had referred. He identified the "X" on
the signature line of the purported cheque and stated he received
the sum of $4,000 in cash - at Rana's residence - and assumed he
was signing that piece of paper in order to acknowledge the
payment. He claimed he was paid small amounts - between $200 and
$400 - by Shindo and/or Rana during the season but did not sign
any receipts. The appellant stated he was worried about receiving
his wages due to the slow payment by SRC but was satisfied he had
been paid in full by the time he received his ROE.
[496] During cross-examination by Johanna Russell,
Gurmail Singh Gill was referred to answers given during Discovery
where he stated he had a joint account - with his son
- at a branch of the Royal bank. He agreed that - subsequently -
a copy of the bank book for said account had been produced,
covering activity therein from July 23 to December 31, 1996.
During the appellant's interview with Jeannie Suric, his answer
is recorded that he deposited two SRC cheques into his own
account at the Royal bank and not into the joint account. Gill
denied having given that answer and explained that when he
testified in his direct examination that he had no bank account
in 1996, he had understood the question to have been whether he
had his own personal account rather than some other banking
arrangement. The appellant worked three seasons - prior to 1996 -
for Bant who operated a labour contracting business under a name
other than SRC. During 1995, the appellant worked with Rana and
told Suric that Rana had invited him to work for a new company
Rana would be operating in 1996. In earlier years, Bant paid Gill
by the flat for picking both strawberries and raspberries, and by
the pound for blueberries and at the rate of $6 per hour for
vegetable work. According to Gill, the rates for picking - $3.00
per flat and 25 cents per pound - were the same in 1996 as in
1993. The appellant agreed his pay statement was false in that he
had not worked exactly 8 hours per day and was not paid $7 per
hour for picking berries. Gill stated that in his experience no
worker was paid an hourly rate to pick berries because the
industry standard was to pay pickers on a piecework basis and to
pay workers by the hour only for tasks performed at vegetable
farms. Gill described the long days during berry season which
were due in part to travel time to Abbotsford - more
than 2 hours each way - because the van had to stop to pick up
people along the route. He stated he wrote down his hours when
working on the vegetable farms and instructed his daughter-in-law
to transfer those numbers into a book that he kept at home.
He stated when berry picking was slow, he was transported to work
on a vegetable farm and that later in the season, the SRC workers
were assigned days on a rotation basis and no longer worked 5 -
or more - days consecutively. Although Gill told Suric during his
HRDC interview - tab 91 - that he was positive Rana drove him to
work in the red van, he admitted that answer was incorrect.
However, within a few minutes, the appellant testified Rana had
driven him to work in a red van and that if he had known his
answers during the HRDC interview would be referred to later he
would not have made certain statements . The only driver
mentioned by the appellant during the telephone interview with
Janet Mah - at the rulings stage - was Kang. Gill
stated Shindo drove him to work at the vegetable farm until
November 2 and that she had "lied to the government" when she
claimed to have been laid off on October 26. He agreed he told
Suric that he received $4,500 in cash after working only two
months because his brother - in India - was ill and needed money.
Counsel pointed out to the appellant that if he had received that
advance of $4,500 and small sums in cash in addition to the
$4,000 in cash received at Rana's house, together with the sum of
$3,151 - by cheque - his net earnings would have been
substantially in excess of the sum of $6,424 shown on his pay
statement. The appellant responded by stating "I am illiterate"
and added that he had been collecting wages for his son's
brother-in-law and mother-in-law, both of whom also worked for
SRC.
CONCLUSION:
[497] The first matter to be decided is whether the
appellant established that he worked for SRC after October 19,
1996. I find he has failed in this respect due to his
contradictory statements and the bizarre quality of his testimony
where he insisted Rana had driven him after all, notwithstanding
a clear denial a few minutes earlier that this prior statement to
Suric about being "certain" Rana had driven him, was not correct.
Certainly, Kang was not available to drive the appellant after
October 19 and no other driver was named by Gill until he decided
to throw Shindo into the mix in order to cover the remaining
period of his alleged employment.
[498] Next, I must decide whether the appellant has
proven that he is entitled to any insurable earnings greater than
the amount accepted by the Minister. The appellant conceded he
had no means by which to prove he had been paid in cash. Just
because someone does not have receipts, other documents or
corroboration of cash payments that hurdle is not insurmountable
provided the proponent has some credibility. Here, the
appellant's testimony in this regard is completely unreliable as
characterized by a plethora of inconsistencies and outright
contradictions. As I commented to the appellant during his
testimony, it seemed as though he was making it up as he went
along in order to cover huge gaps in his story. The appellant
seemed to have difficulty comprehending that the onus was not on
the respondent to disprove the receipt of his alleged cash
payments. The appellant's insurable earnings are in the sum of
$3,584.11.
BHAGWANT KAUR GREWAL:
RELEVANT BOOK OF DOCUMENTS - EXHIBIT R-34
MINISTER'S DECISION:
[499] The Minister decided the appellant was not
employed in insurable employment with SRC from June 9 to October
26, 1996. However, counsel for the respondent conceded the
appellant had been employed in insurable employment from July 10
to September 17, 1996 but had no insurable earnings during that
period.
APPELLANT'S POSITION:
[500] The appellant claimed she was employed from June 9
to July 10 and from September 18 to October 26, 1996 and had
insurable earnings in the sum of $7,840 as shown on her ROE.
SUBMISSIONS:
[501] The appellant appeared on her own behalf and
submitted she had performed the work as claimed and had insurable
earnings as stated in her ROE.
[502] Counsel for the respondent advised that following
a review of picking cards, the Minister was satisfied the
appellant had been employed by SRC. However, the position of the
respondent was that the appellant had not adduced sufficient
credible evidence to prove she had worked in excess of the period
accepted by the Minister or that she had any insurable
earnings.
ANALYSIS:
[503] The appellant testified she spent the first few
days of employment at a vegetable farm in Richmond where she dug
out grass around cauliflower and that a few days later she
started picking strawberries at Khakh Farms. She stated her pay
was $7 an hour for all tasks - including picking raspberries and
blueberries - even though she used picking cards. However, when
completing the Questionnaire, the answers to several questions
therein clearly stated she had not used picking cards. The
appellant acknowledged this information was wrong and blamed it
on her daughter who completed the form on her behalf. Following
the end of berry season, the appellant stated she worked at the
Chinese Farm where she performed tasks in relation to zucchini,
peppers, lettuce and radishes. She stated Shindo was her only van
driver and that when the SRC van no longer came by her house in
the morning, she called Rana who told her to come to his house
and obtain her ROE and final payment. Grewal received a cheque -
from SRC - in the sum of $2,000 and cashed it at the TD bank on
November 4, 1996, even though she had an account at the Royal
bank, nearby, also on Fraser Street. She testified it was
necessary to ask for money during the season and either Shindo or
Rana would hand her $400 or $500 in cash from time to time and
that she received a final cash payment of between $500 and $700
when receiving her ROE. She stated she was not aware of the "I
Cash Money Give" purported cheque in the sum of $5,000 and that
the signature thereon was not her own.
[504] During cross-examination by Johanna Russell,
Bhagwant Kaur Grewal recalled attending - with her son - the HRDC
interview on November 10, 1997 and that she had signed on the
last page of the notes written by the ICO. Counsel referred the
appellant to her answer in the rulings Questionnaire where she
named Shindo and Harjit Gill as her only drivers and pointed out
that during her HRDC interview - with Michel Fontaine - she had
described a 40-45 year old male - known to her as
Binder - as another driver. The appellant replied that Shindo had
been her only driver. Concerning payment of wages, the appellant
testified she was certain she had received a cheque - in the sum
of $1,000 - from Shindo and deposited it to her account in the
Royal bank. When reminded by counsel for the respondent that - at
her HRDC interview - she had provided a detailed statement
explaining that she had received a $1,000 cheque that - after
deposit - was returned by the Royal as NSF and that she was given
a replacement in the same amount, Grewal stated that answer was
correct. During the HRDC interview, Grewal also described how she
had received another 3 or 4 cheques - in addition to the two
$1,000 cheques and the $2,000 cheque - that cleared through the
SRC bank account and how these other cheques were NSF and she had
to take them to Rana's house in order to exchange them for cash.
When confronted with these answers, Grewal denied she had given
them to the interviewer and blamed her son's ability as an
interpreter claiming he barely knew enough English to "get by" at
that time. With respect to another one of her answers, Grewal
stated she was "astonished" the interviewer had written down that
SRC still owed her $3,000 as at the date of her layoff and that
this outstanding amount had been paid off in small amounts of
cash over the next 3 or 4 months. She also claimed her son never
told her that HRDC wanted her to produce bank statements on her
account. In responding to her Questionnaires, the appellant
claimed she had been paid a total of $3,500 by cheque and $4,340
in cash for a total of $7,840, an amount that conforms with the
amount of gross earnings shown on her pay statement. The
appellant conceded that she did not receive that amount of money
and was certain she had provided that answer to her son and/or
daughter who had assisted her to complete the Questionnaires. She
also had stated therein that her last work was cleaning up the
remaining blueberry crop. Grewal agreed her application for UI
benefits had been completed at Rana's house with Shindo's
assistance.
CONCLUSION:
[505] The first matter to decide is whether the
appellant worked before July 10 or after September 17, 1996. On
this issue and in respect of the question whether the appellant
had any insurable earnings, where there is a conflict between the
testimony of the appellant and that of Fontaine, I choose
Fontaine's version. It is highly unlikely the appellant worked
until October 26 because the weather conditions were such that
most farmers would have had the zucchini crop picked by
mid-October - at the latest - and Sweeney testified there had
been a killing frost on October 20. The appellant also has a
credibility problem concerning her drivers since she gave
Fontaine a detailed description of Binder and the van he drove.
The appellant told Fontaine that she picked strawberries in
Richmond for a few days only and had worked mostly with
vegetables. She also said she did not pick blueberries or
raspberries and went on to describe the tasks associated with
vegetables, including picking, weeding and washing. During her
testimony, when confronted with these answers, the appellant
denied ever making such statements. The interview was conducted
in 1997 and one would expect her recollection of work allegedly
done as late as October, 1996, would have been fresher in her
memory than during her testimony in 2004 when she testified she
picked raspberries and blueberries - each for more than a month -
following her work picking strawberries at Khakh Farms. If she
did pick those berries at Khakh Farms, the start date of June 9
would accord with the evidence adduced in these proceedings.
However, the appellant's lack of credibility in so many areas
makes it unlikely she is telling the truth about this period of
her employment. I can accept that she worked later in the season
because it is verified by picking cards but I cannot find she was
employed earlier merely on the basis of her unsupported
assertion.
[506] I find the appellant has not established that she
was engaged in insurable employment with SRC during any period
greater than the one acknowledged by the Minister.
[507] With respect to the issue of insurable earnings,
there was a $2,000 cheque that cleared the SRC bank account. The
pro-rated amount of source deductions is $274.42, according to
the Chart. There is no question the appellant has a severe
credibility problem concerning her alleged payments and there is
no proof that she ever deposited any cheques to her own bank
account, or that one was returned NSF. She gave many versions
concerning alleged payments, most of which are not believable so
it would not be prudent to choose one over the other. On the
other hand, even though the Minister harbours certain suspicions
in this respect, there is no evidence capable of sustaining a
finding that the appellant returned any part of the proceeds of
the $2,000 cheque to her employer and therefore, I find she is
entitled to insurable earnings based on that amount.
[508] I find the appellant was employed in insurable
employment with SRC during the period from July 10 to September
17, 1996 and had insurable earnings in the sum of $2,274.42.
AMARJIT KAUR GREWAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-35
MINISTER'S DECISION:
[509] The Minister decided the appellant was employed in
insurable employment with SRC from June 9 to October 12, 1996 and
had $4,000 in insurable earnings.
APPELLANT'S POSITION:
[510] The appellant agrees with the decision of the
Minister in respect of her period of employment but asserts her
insurable earnings are in the sum of $7,056.
SUBMISSIONS:
[511] Param Grewal, agent for the appellant, pointed out
the appellant testified she received certain cash payments in
addition to the amount already accepted by the Minister.
[512] Counsel for the respondent submitted the
appellant's appeal should be dismissed because she admitted
during her testimony that she repaid the sum of $4,000 to the
principals of SRC at Rana's house. As a result, counsel submitted
it is moot whether the appellant received additional payments in
cash because the sum would be less than the amount already
recognized by the Minister and that under the circumstances there
is no basis to add an amount for pro-rated source deductions.
ANALYSIS:
[513] The appellant's testimony was interesting and
illuminating. She stated she was paid $4 per flat to pick
strawberries, $4.50 for raspberries and 24 cents a pound to pick
blueberries. She was probably the fastest picker on the SRC
payroll and one of the few who consistently could produce enough
daily revenue for SRC in order to earn the amount required to pay
her wage if she had really been working at $7 per hour, 8 hours a
day, 7 days a week, as alleged by some appellants based on the
pay statements prepared by Bains Tax for SRC. She also testified
that some workdays were 12 hours long and others were shorter if
it rained. She also worked at the Chinese Farm in Richmond where
she was paid $7 per hour for performing tasks relating to crops
of radishes and turnips. She stated she received a cheque - in
the sum of $4,000 - from Shindo who instructed her to ride with
Rana and 4 or 5 other workers - in a van driven by Kang - to the
TD bank at 49th and Fraser where they went inside and cashed
their cheques. Then, Kang drove her and the others back to Rana's
house where, although she was upset by this requirement, she
handed over the $4,000 proceeds of the cheque she had just cashed
in order to receive her ROE. She assumed the other workers who
had accompanied her to the bank and then back to Rana's house,
did the same. There had been no calculation of any amount due to
her for wages earned during her employment. Amarjit Kaur Grewal
testified she retained between $2,000 and $2,500 of the money
paid to her during her employment. She stated she had been
instructed by Bant and Shindo not to mention using any picking
cards and to tell HRDC that she had been employed on an hourly
basis. Counsel referred the appellant to a Questionnaire
completed on her behalf in which the answers were almost
identical to those returned on behalf of Sukhwinder Kaur Toot and
her husband, Karmjit Singh Johal, Gurcharan Kaur Johal, Gurmail
Singh Cheema, Jaswinder Kaur Cheema and Bhagwant Kaur Grewal. The
appellant recalled having been driven by Harbhajan Singh Kang to
a meeting attended by these individuals - some of whom
are appellants in the within proceedings - where Kang played a
major role in " pressuring" workers to agree to provide certain
answers - about their SRC employment - in Questionnaires which
had to be returned to the government. During this meeting, Kang
and other persons, described by Grewal as "educated people"
completed the Questionnaires and she signed her form without
knowing the contents because others at the meeting instructed her
to follow the directions of Kang.
CONCLUSION:
[514] Counsel for the respondent had advised the Court
earlier that the Minister continued to accept the appellant had
$4,000 in insurable earnings notwithstanding her revelation that
this sum had been repaid to the employer. That being the case, I
am prepared to endorse that position but - obviously - the
appellant cannot be given credit for any other amount of cash she
claims to have received, whether it was $2,000, $2,500 or an
amount in between, because even if I accepted that a further
amount had been paid, it would be more than offset by the
appellant's repayment of the sum of $4,000 to SRC.
[515] The appellant is a talented berry picker and a
straightforward witness who allowed herself to go along with the
plan - hatched by Bant and Shindo - to deceive HRDC about her
working conditions at SRC in order to avoid losing her "weeks
money" and having to repay a substantial portion of her UI
benefits, already received and spent.
[516] The decision of the Minister is confirmed and the
appellant's appeal is hereby dismissed.
SHARDA KAUR JOSHI:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-36
MINISTER'S DECISION:
[517] The Minister decided the appellant was not
employed in insurable employment with SRC during the period from
June 9 to October 12, 1996.
APPELLANT'S POSITION:
[518] The appellant appeared on her own behalf and
claimed she was employed during said period and had insurable
earnings in the sum of $7,000.
SUBMISSIONS:
[519] The appellant submitted she had established that
she was employed with SRC during the period, as alleged, and had
been paid wages.
[520] Counsel for the respondent submitted the
appellant's testimony that she was paid by the hour was not
credible and tainted other aspects of her evidence. Counsel
submitted the appellant's version of working on the vegetable
farms after blueberry season was not credible and that she had
not provided that information during her HRDC interview. With
respect to the matter of insurable earnings, counsel advised the
SRC records indicated one cheque - in the sum of $4,000 - payable
to the appellant had cleared the TD bank on October 7, 1996, and
that in the event I found her to have been engaged in insurable
employment and that this payment constituted insurable earnings,
then said earnings should be increased by the amount - $528.55 -
attributable to pro-rated source deductions in accordance with
the Chart.
ANALYSIS:
[521] Sharda Kaur Joshi testified she started working
for SRC on June 9, 1996, and weeded around plants for the first
few days before picking strawberries on properties - in
Abbotsford and Chiliwack - owned by Khakh Farms. She testified
her wage was $7 per hour and that on a good day she picked 10-12
flats of strawberries, a volume for which SRC would have received
between $43.50 and $52.20 from the grower. Her daily production
was recorded on a picking card. The appellant stated she picked
raspberries until the end of August at two farms in Abbotsford
and then picked blueberries at Gill Farms and at other farms.
After berry season, she stated she worked a few days on vegetable
farms in Richmond that grew radishes and zucchini. She received a
cheque in the sum of $4,000 that she cashed at TD bank at 49th
and Fraser even though she was a signatory to a joint account at
a branch of TD in Abbotsford. She testified she elected to obtain
cash at the employer's bank because she was about to leave for a
holiday in India and needed money for shopping. In addition to
the cheque, Joshi stated Rana handed her $300 in cash together
with her ROE. She had worked for other labour contractors and did
not find the method of payment unusual in that the bulk of her
wages had been paid only at the end of the season and any small
advances paid earlier were taken into account. She testified she
did not know the purpose behind the " I Cash Money Give"
purported cheque with her name in the payee space and stated it
was not her signature thereon. She stated she recorded her hours
of work each day and assumed she had been paid in full even
though - in her opinion - she and other SRC workers had been
"treated like slaves." Joshi came to Canada in 1993 and described
her shock upon realizing she was expected to earn a living by
working as a farm labourer since she had never done that sort of
work while living in India.
[522] During cross-examination by Johanna Russell,
Sharda Kaur Joshi conceded she can read, write and speak English
at a level sufficient for everyday purposes and had taken third
level ESL classes prior to obtaining her licence to work as a
Pest Technician. She amended her earlier testimony by stating the
$300 in cash was received when she was handed her ROE about a
week after she received the $4,000 cheque at Rana's house. She
assumed, because she cashed that cheque on October 7, that
she probably worked until October 12 and Rana had paid her an
additional $300 for that period when handing her the ROE. At
Discovery, the appellant stated she picked raspberries on her
first day of work without mentioning any weeding. She explained
that answer by stating she had picked and weeded on that day but
had worked picking strawberries earlier and that even though the
general crop of raspberries is not ready for harvesting until
July 1, on some farms berries are ready earlier and are sold at a
higher price. The appellant agreed she had not provided locations
of farms where she had worked - when completing the Questionnaire
- but while preparing for Discovery, had telephoned various
people to determine the identity and address of the farms where
she had worked. Joshi testified she received cash two or three
times, and had a specific recollection that one sum was either
$600 or $700 and that the other two added up to about $1,000. She
denied bringing in two receipts - tab 111 - to Barb Long at HRDC
in an effort to substantiate she had been paid cash by Rana even
though - at Discovery - she stated she had some receipts and
believed she had provided photocopies thereof to HRDC. She
estimated she received a total of $6,300 from SRC even though her
net earnings should have been only $6,075 if her pay statement
was accurate. The appellant testified that Shindo picked her up
at her Abbotsford residence and drove her to the farms in that
area and/or to Richmond later in the year. When counsel pointed
out the appellant was the only SRC worker living in Abbotsford
and that it made no sense for SRC to send a van and driver to
pick her up and take her to work, the appellant's immediate
response was that she had ridden to work with either her father
or her husband about 90% of the time. When completing the
Questionnaire, Joshi never mentioned Shindo as her driver. At
Discovery, she stated she rode to work - her first day - in a van
driven by Bant. In Court, she testified her husband drove her to
work that first day and that - thereafter - she always rode to
work in a white SRC van.
CONCLUSION:
[523] The appellant has a problem getting a grip on
reality. She complained she would have made more money picking
berries on a piecework basis rather than receiving an hourly wage
based on an 8-hour day but that she had not been given any option
except to work at $7 per hour. Her own estimates of her daily
production - even of good days - do not support this contention.
She could not remember providing receipts to the HRDC office and
stated several times in her testimony that when Bant gave her
cash she had not signed any receipt. There are numerous
inconsistencies in her explanations about the type of work done,
the location thereof, the method of transportation to and from
work, the identity of her drivers, the location of the bank where
she cashed her cheque and so on. It is extremely doubtful she
ever worked on a vegetable farm in Richmond after the end of
berry season. It would make no sense for SRC to send a driver all
the way to Abbotsford - from Vancouver - in order to pick her up
and take her to Richmond during a slow time when it was employing
workers on a rotating basis. It was difficult to believe the
appellant when she testified concerning material aspects of her
employment. She did not tell the truth very often and on those
rare occasions when she did, it may have been accidental or
because her memory of past deception had failed her and she was
unable to reiterate an earlier statement.
[524] The burning question is this: in spite of her
unsatisfactory conduct throughout, does the evidence support a
finding that she worked for SRC during a certain period and that
she had insurable earnings in an amount calculated on the basis
of the $4,000 cheque that cleared the SRC bank account. I have
reviewed the relevant evidence as it relates to the overall
operation of SRC in general and to this appellant in particular.
My decision is truly a judgment call in the popular sense of that
term and is based to a large extent on her overall testimony and
demeanour in Court. I make this finding in spite of my confidence
that the statements recorded by Barb Long during the HRDC
interview were made by the appellant. Despite the inconsistencies
in the appellant's statements during said interview, or when
completing Questionnaires, and/or in her testimony at nearly
every stage of the process, I am satisfied she picked berries
from June 9 until the end of the blueberry season and have chosen
September 30, 1996, as the day to represent that event. It would
have been so much easier to resolve this issue had Joshi not been
so sparing with the truth and so careless when providing
information to HRDC and CCRA.
[525] I find the appellant was engaged in insurable
employment with SRC from June 9 to September 30, 1996 and had
insurable earnings in the sum of $4,528.55.
JATINDER KAUR LIDHRAN:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-37
MINISTER'S DECISION:
[526] The Minister decided the appellant was not
employed in insurable employment with SRC during the period from
August 25 to October 12, 1996.
APPELLANT'S POSITION:
[527] The appellant claimed she was so employed during
said period and had insurable earnings in the sum of $2,415.
SUBMISSIONS:
[528] The appellant appeared on her own behalf and
submitted she had worked hard and had been paid for those
efforts.
[529] Counsel for the respondent submitted the appellant
had not proved her case because she had such a limited
recollection of relevant details pertaining to her alleged
employment, including her description of riding to work in a
white van and entering that vehicle through a rear door. Counsel
referred to the testimony of other appellants who testified about
their work at the vegetable farm and submitted her evidence
conflicted with the majority of those descriptions of tasks
performed. In the event the appellant was found to have been
engaged in insurable employment, counsel submitted she would not
be entitled to any grossing-up of insurable earnings - by adding
pro-rated source deductions - because she had been overpaid and
her maximum net earnings were only $2,415, according to the pay
statement.
ANALYSIS:
[530] The appellant is an intelligent, well-spoken,
young woman. In 1996, she worked for her father's business -
Lidhran Farms - as a berry picker until the season ended just
before the last week in August. She discovered Rana was hiring
workers and went to work for SRC at $7 per hour and on her first
day was taken in a white van to a farm - owned by a Chinese man -
in Richmond where she picked blueberries. A picking card was used
to record weight. The appellant testified she was picked up the
following day in the same van - driven by a female - and that
there were about 20 people inside. She described working inside a
structure on a vegetable farm in Richmond where she washed
vegetables, including turnips, zucchini and daikon while other
workers packed vegetables into a blue box. She stated that until
she started work each day, she did not know if she would be
working outside or inside but when the work was performed outside
it involved washing vegetables in a tub and she did not do any
picking or cutting. She testified her driver told her she would
be laid off on October 12 and that she received her ROE - in the
mail - a few days later and that a cheque in the sum of $2,500
- payable to Jatinder Kaur Sidhu, her married name at
that time - was either in the same envelope or arrived -
separately - a few days later. She deposited the cheque to her
husband's account at VanCity Credit Union. During her HRDC
interview with Bowerman, the appellant stated she had never seen
her earnings record - tab 91 - indicating she had
gross pay in the sum of $2,415 and net pay in the sum of $2,098.
She had not collected UI payments before and was unaware of the
number of weeks of extra work needed to qualify for benefits.
[531] During cross-examination by Selena Sit, Jatinder
Kaur Lidhran stated she did not know the names of any co-workers
or supervisors since it seemed no one had fulfilled that role. In
her recollection, every day was nearly the same and she could not
remember many details about the extent of work performed on each
of the two vegetable farms in Richmond. She stated that when
completing a Questionnaire, she had not mentioned picking
blueberries in Richmond because that work lasted only one day.
The appellant testified she had been extremely unhappy at that
time as a result of finding herself in an unsuccessful, arranged
marriage and that the main reason she worked was to get out of
the house. Although she was unable to identify a photograph of
Rana as the person who had hired her, she confirmed that the man
who came to her house to offer her employment had introduced
himself as Rana. She recalled riding in crowded conditions inside
the van and that she crawled inside a rear door and found herself
space to sit inside an area that had no seats.
CONCLUSION:
[532] The appellant testified she only washed vegetables
at the farms and did not do any picking or cutting. When she
arrived in the morning, there were piles of vegetables - in big
bins - to be washed and she performed her tasks without being
told what to do. She is well-educated and experienced in farming
so it is not surprising she did not have to be issued an
instruction manual in order to wash vegetables every day. She was
unable to identify a photograph of Shindo, even though she had
named Shindo as her driver every day on the basis she knew a
female had always driven the white van. It is apparent the
appellant was living in a fog, a sort of trance, during that
unhappy period. Earlier that summer, she earned about $6,000
working for her father at Lidhran Farms but her husband
appropriated that money, presumably for his own purposes. She has
been in Canada since age 5 and after completing Grade 12 attended
college. She is currently employed in a responsible position as a
Civil Aviation Assistant. It is reasonable to assume that for the
appellant to work at a menial job with much older people merely
to escape her marital home, caused her to close off most of her
memory banks because her days consisted of getting up early,
riding in a crowded van, washing vegetables and returning home.
She had a son, born in January, 1996 who she left behind each day
in the care of her husband. I am not overly concerned about her
awkward attempts to recall the configuration of the van, the
extent of open space therein or the seating arrangement. When
Harbhajan Singh Kang testified, he described how he had
complained to Bant/Shindo/Rana about the crowded and unsafe
conditions inside the vans where people were forced to sit on the
floor or jam themselves into small spaces between the seats or
lean against the sides of the vehicle. As the appellant pointed
out during her direct testimony, if she wanted to qualify for UI
benefits she would have begged her father for another 6 or 7
weeks work. She also stated she had no idea why her pay cheque
was in the exact sum of $2,500. However, it is reasonable to
conclude she would not have had much interest in that detail
since it had to be deposited to her husband's personal account to
be used at his discretion. One reason Lidhran's evidence
concerning her tasks at the vegetable farms might seem to
conflict with those described by other workers is that most of
them had invented all or part of their tasks during part or all
of their alleged employment and I have decided - earlier - that
some of them never worked there, either as alleged, or at all. I
accept the appellant's testimony concerning the duration of her
employment.
[533] With respect to the appellant's insurable
earnings, she received the sum of $2,500 for her efforts. The
earnings record shows her gross earnings as $2,415 and - taking
into account the circumstances of her employment - her insurable
earnings cannot be greater than that sum.
[534] I find the appellant was employed in insurable
employment with SRC from August 25 to October 12, 1996 and had
insurable earnings in the sum of $2,415.
SUKHWINDER KAUR HUNDAL:
RELEVANT BOOK OF DOCUMENTS: EXHIBIT R-38
MINISTER'S DECISION:
[535] The Minister decided the appellant was not
employed in insurable employment with SRC during the period from
November 17 to December 28, 1996.
APPELLANT'S POSITION:
[536] The appellant appeared on her own behalf and
claimed she worked during said period and had insurable earnings
in the sum of $2,282, as shown on her ROE.
SUBMISSIONS:
[537] The appellant submitted she worked as described in
her testimony and that it had been a difficult job which should
have entitled her to receive UI benefits following layoff.
[538] Counsel for the respondent submitted the appellant
had failed to establish on a balance of probabilities that she
had worked during the period claimed and that she was unable to
provide any reasonable explanation for the multitude of
inconsistencies and contradictions between her testimony and the
answers she had provided previously to HRDC and/or CCRA.
ANALYSIS:
[539] The appellant arrived in Canada on July 1, 1996,
and started working for Canwest Farms the next day. She worked
there until November 15 when the last blueberry work was
finished. During her employment with Canwest Farms, she received
cash advances against a final payment of wages. In India, the
appellant and her husband owned a 40-acre farm that - in 1996, at
$15,000 Canadian per acre - was worth about $600,000 but they
decided to lease the farm to their son rather than sell it.
Hundal stated she began working for SRC on November 17 and while
talking with other workers learned about the government program
whereby people could receive UI benefits following layoff. She
testified she went to a farm and picked various vegetables,
including turnips, radishes and sprouts and placed them in boxes.
She recalled working 7 or 8 hours a day at different farms with a
day off if it was too cold to wash the vegetables outside. The
appellant was referred to the "I Cash Money Give" purported
cheque in the sum of $2,148 and to a signature thereon which she
stated had not been written by her. She testified Rana paid
her cash on her last day of employment and that she took the
money home to be counted and although unsure of the amount, was
certain it was less than $5,000. During an HRDC interview, Hundal
stated she was "given one cheque, at the end of six weeks, when
all the work was done." Another answer given by her at that time
was that she signed the cheque and gave it to her husband.
Another response was that she had not received any cash but only
a cheque in payment of wages. At Discovery, the appellant
asserted - on at least two occasions - that she spent the entire
period of her employment picking Brussels sprouts. During a
face-to-face interview with Janet Mah on July 14, 1999, Hundal
stated she had performed tasks only in relation to the sprouts.
Upon being advised by counsel that the expert evidence adduced on
behalf of the respondent was that all Brussels sprouts crops were
finished by November 15, and that no other SRC worker had
mentioned working that late on sprouts, the appellant agreed she
had not worked on days that were cold. During the HRDC interview
on May 26, 1997, Hundal told Mike Taylor - ICO - that she
rode to work " in two vans, one green and
one cream-coloured" and that she was driven by " the same
person, a man, regardless of van." However, at Discovery,
the appellant testified that she had always been driven to work
by Rana. She was unable to explain that inconsistency but it is
reasonable to draw the inference that she found out all male
drivers had been laid off by November 17 and attempted to regain
lost ground by stating Shindo had driven her to work throughout
November and until her layoff on December 28, 1996.
CONCLUSION:
[540] As I indicated to the appellant during her
testimony, I did not doubt that she had picked berries for
Canwest Farms but the issue was whether she had worked for SRC on
the vegetable farms, as alleged. The SRC payroll record for
Hundal indicates she worked an average of 55 hours a week even
though she testified she took some days off when it was too cold.
The weather was cold in November and December and there was a
substantial amount of snow on the ground for several days at a
time and it snowed again on December 28, her last day of work.
According to the evidence of Sweeney, it is unlikely any
vegetable other than Brussels sprouts would have been harvested
after November 15, yet the appellant claims to have worked 55
hours a week picking and washing other sorts of vegetables.
Sweeney also testified that even the hardier varieties of
vegetables would have been destroyed or rendered unmarketable by
November 23 due to extreme overnight temperatures in Richmond.
There would have been no vegetables to pick or wash or pack after
that date, because even Brussels sprouts would have been finished
by that bout of bad weather even if they had survived earlier low
temperatures in October. The answers provided by the
appellant during the HRDC interview were interpreted by her niece
whom she brought to the office for that purpose. A partial
transcript of answers given by the appellant at Discovery clearly
established that she described working on cutting Brussels
sprouts, shaking them, and putting them in a bucket. She was
asked pointblank whether she had picked any other vegetables not
only on that first day but during the entire time she worked for
Rana. She replied she had not done any other work and confirmed
that she had picked Brussels sprouts for 6 weeks. The
appellant changed her story that her driver had always been a man
by stating Rana had ridden in the van with her but Shindo was the
driver. When the appellant was confronted with the fact she had
provided different answers to the effect that Rana always drove
and then that Shindo always drove - both of which could not be
true - she replied " ... I just said it like just the way in
India that, you know, he used to go with us and that's the only
person that we knew, so I named him." In the appeals
Questionnaire submitted on her behalf, co-workers were named,
including Harbans Kaur Kang who was laid off on October 19 and
left for India on October 11 days later. Hundal agreed that
information was incorrect as she did not know Harbans Kaur
Kang.
[541] The appellant has not demonstrated on a balance of
probabilities that she was employed by SRC during the period
alleged or at all. The evidence points the other way and it is
not difficult to conclude that her 6-week alleged employment was
a sham and had been designed to provide her with a false ROE that
- in addition to her previous employment at Canwest Farms - would
entitle her to receive UI benefits.
[542] Even if I had found that the appellant was in
insurable employment with SRC, she has not proven that she was
paid any sum of money that could constitute insurable earnings.
During her testimony, Hundal stated - on three separate occasions
- that she was paid in cash only once on her last day of work.
During the HRDC interview, she stated she was paid by cheque - in
the sum of $800 - and did not receive any cash. The appellant was
unable to explain these contradictions except to complain that it
had been a long time ago and she could not remember what she said
at that time. There were no cancelled cheques among the SRC
records nor any other reliable documentation upon which one could
infer that the appellant had every been paid by SRC.
[543] The appellant has not adduced sufficient credible
evidence to support her position that she was employed by SRC
and/or that she was paid in respect of any employment. As a
result, her appeal is dismissed.
[544] At this point, I want to comment on one aspect of
these appeals. Over the past couple of decades, the expression
"like nailing Jello to a wall" has been used to define the
frustration arising from attempts to pin someone down to a
specific version of events proffered in support of a particular
proposition. That otherwise daunting task - when viewed in the
context of making sense of some of the testimony presented in the
within proceedings - seems like child's play. It was more like
trying to Scotch-tape fog to a stone fence. Often, a question
elicited several different answers from the same witness whose
response was often tailored to meet the perceived purpose of the
question. Sometimes, the proceedings took on the aspect of that
popular television game show where the host/questioner demands,
"Is that your final answer?" It is not surprising that someone is
unable to recall specific details in relation to one or more
events which never occurred as it requires an exceptional memory
in order to sustain an outright fabrication over an extended
period because the devil is always in the details.
[545] The Honourable Judge Miller, Tax Court of Canada,
encountered similar difficulties hearing the case of Khunkhun
c. Canada (Minister of National Revenue - M.N.R.),
[2002] T.C.J. No. 483. The appeal involved whether the appellant
had worked in insurable employment - in an orchard - during the
summer of 2000, and, if so, what was the correct number of
insurable hours. In the Khunkhun matter, the Agricultural
Compliance Team had visited the orchard on a day when the
appellant was not present. Also, the appellant had not maintained
a record of her hours and her husband - whom it had been
suggested had kept track of her hours - was not produced as a
witness. Cheques had been made out - by the payer - to the worker
on a more or less regular basis but the appellant had actually
received payment all at once at the end of the growing season in
October. Commencing at paragraph 12 of his judgment, Judge Miller
commented as follows:
12. Was Ms. Khunkhun
employed as an orchard worker on Mr. Nagra's farm for
961.5 hours in 2000? The Respondent's position is no, she was
not. According to the Respondent, the ROE for 2000 and four
October cheques were nothing more than a sham to give the
appearance that the Appellant worked. The ROE was inconsistent
with the evidence Ms. Khunkhun was paid partially by piece work.
Ms. Khunkhun was not being truthful in suggesting she was present
at the farm team visits. The cheques were made out at the same
time. There is no evidence that two of them were ever deposited.
Ms. Khunkhun could not verify how many hours she worked, nor how
many days she missed. These are all factors that work against her
position of 961.5 hours of insurable employment.
13. Are there factors that
support her position? Her somewhat evasive answers about time
actually worked gave little support to the figure of 961.5 hours;
however, they still suggested to me that she has worked as an
orchard worker. The pay stubs for 2001 provided some evidence of
that. They also support the breakdown between piece work and
hourly wages, albeit for the 2001 year and not the 2000 year.
Another factor in support of Ms. Khunkhun's position is
that Canada Trust's confirmation of the two deposits clearly
represented two of the October 2000 cheques. I am satisfied that
workers might not be paid until the end of the season. This does
appear to be common practice. Finally, Mr. and Mrs. Bains
supported Ms. Khunkhun's position as an orchard worker
in 2000, but provided no evidence as to her hours.
14. What should I take
from Mr. Nagra's presence but failure to testify? Is there a
negative inference contrary to Ms. Khunkhun's position
to be drawn? This was not suggested by the Respondent. Was he
there in some way to intimidate? Again, I cannot say, but I do
find it curious. Presumably, he did not want to give evidence and
certainly nobody wanted to force him to.
15. My overall impression
of Ms. Khunkhun and Mr. and Mrs. Bains was that they
exhibited a nervous, cautious almost fearful demeanour. This
leads me to the conclusion that I have not heard the whole story
of Mr. Nagra and his workers. I believe there are likely
some liberties being taken with the truth of
Ms. Khunkhun's employment. There is simply more going on
then I can fully ascertain. I do not, however, believe that the
whole thing is a sham as the Respondent would have me believe.
Yes, there were inconsistencies; yes, testimony was at time
vague; and yes, I believe Ms. Khunkhun lied about being
present at the farm team visits. However, testimony was also
supportive of Ms. Khunkhun's working and receiving some
payment for that work. The truth I suggest lies somewhere between
the sham suggested by the Respondent and the 961.5 hours
suggested by the Appellant.
16. Having reached that
conclusion, I am mindful of Judge Margeson's comments in
Narang v. M.N.R. ([1997] T.C.J. No. 99) a case similar to
this, where he stated:
Certainly if the Court should find that there was a
"sham transaction" then there was no insurable
employment, but the Respondent has no burden to establish that
there was a "sham transaction".
The burden is on the Appellant and the Intervenors to
establish on a balance of probabilities that there was work
performed under a contract of service, that the workers worked
the periods of time set out in the ROEs and that they were paid
the amounts referred to therein.
I find that on the balance of probabilities, Ms. Khunkhun
performed work under a contract of service for some period during
2000. However, I am not convinced that she worked the period of
time set out in the ROE, nor that she was paid the full amount
referred to therein. I do find that she received the payments of
two of the October 2000 cheques totalling $3,383.79. Based on the
Respondent's assumptions of Mr. Nagra's deductions on
Ms. Khunkhun's T4 slip, this would represent a gross pay
of approximately $4,380. At an hourly rate of $10 this suggests
438 hours worked. While I recognize that this is a rough and
ready approach to the problem, I am prepared to allow the appeal
to this extent for the following reasons.
17. I am not satisfied
that it is the worker who is wholly at fault here. As I have
indicated, I suspect something is indeed rotten in the orchard
business, though I am not sure exactly what, but to penalize the
worker alone, the lowest spectrum of the fruit industry, does not
seem just. My impression is that these seasonal workers, many who
do not understand English, can be subjected to questionable
labour tactics. Presumably, this is why these farm teams in
British Columbia go to orchards, to in part educate the workers
about their rights and responsibilities. The worker is wrong to
fall into any trap for purported personal gain which involves
deceiving the authorities. That is not tolerable. Neither is it
acceptable that the most vulnerable bear an uneven burden and
responsibility when deceit is uncovered. I believe
Ms. Khunkhun worked for Mr. Nagra in 2000, but the hours
reported by Mr. Nagra on the ROE are inaccurate. I am not
prepared to reduce them to zero with the consequential adverse
impact on Ms. Khunkhun. Neither am I prepared to allow Ms.
Khunkhun's claim of having worked 961.5 hours based on the
evidence she presented. I allow the appeal and refer the matter
back to the Minister on the basis that Ms. Khunkhun worked
438 hours of insurable employment in 2000.
[546] The whole of the evidence leaves one with the
distinct impression that Bant and Shindo knowingly operated a
business that was used - for the most part - as a vehicle by
which they could perpetrate a fraud against the unemployment
insurance system. Even though Rana was the sole shareholder and
director of SRC, he was a straw man and the business operation -
at all material times - was under the direction of Bant and
Shindo. SRC was the instrument chosen to continue the labour
contracting business formerly operated by a corporation
controlled by Bant. It is interesting to note that when Rana was
working in the fields in 1995, he invited a fellow farm worker to
work for him the following year because he was forming a
corporation to carry on the labour contracting business.
Throughout, the onus was on the appellants to establish on a
balance of probabilities that they had been employed in insurable
employment and had insurable earnings. There was not any burden
on the respondent to prove that part or all of any appellant's
putative employment was a sham. These appeals were not like those
cases where the respondent simply makes a bald assertion in a
Reply that certain employments are not genuine and hopes that -
without more - it will be accorded the status attributable - in
law - to an assumption of fact. In this instance, the Minister
provided details not only in a general sense as they related to
the SRC business operation but also set forth in each individual
appellant's Reply particular assumptions of fact pertaining to
certain troubling aspects of his or her employment. Therefore, it
should have been apparent to the appellants that certain
assumptions had to be rebutted in order that their appeals could
succeed. Throughout the conduct of these appeals, no matter how
many times the concept of the onus was explained to the
appellants, most of them seemed to believe that before they would
have to repay any debt to HRDC - arising from the alleged
overpayment of UI benefits - the respondent had to prove - to
some degree approaching certainty - they had participated in
creating a sham employment scenario or were otherwise major
players in the overall scam perpetrated by SRC. As a result, it
often led to several appellants adopting the erroneous philosophy
that the less said about their SRC employment situation, the
better, since any residual doubt about their entitlement to UI
benefits would - somehow - be resolved in their favour.
[547] The impact of the SRC matter on the federal
treasury was significant not only in respect of the loss of
revenue in the form of unremitted source deductions and GST but
also from HRDC having paid and/or overpaid UI benefits to
individuals who were not qualified to receive either the specific
amount of the benefits or any sum at all. The cost of the HRDC
investigation, the CCRA rulings and appeals process, and the
subsequent litigation - including the cost and inconvenience to
the appellants - can be laid squarely at the door of Bant and
Shindo and - to a lesser extent - Rana and those workers who
willingly played along with their scheme. The method of operation
employed by SRC was extremely unfair to other legitimate labour
contractors because it is not difficult to obtain a competitive
edge if there is no intention to remit source deductions or GST,
or if workers are not paid their proper wages or if the sale of
phony ROEs is a source of business revenue.
[548] The full-scale HRDC inquiry occurred because
Michel Fontaine pressed on with his concerns after discerning a
pattern was emerging in the course of reviewing claims by former
SRC workers. The Major Fraud Unit within HRDC declined to pursue
the matter - more than once - and one shudders to think about
what other pressing business was occupying the time and talent of
that specialized unit if the SRC matter was considered to be
small potatoes. The coordination - by Fontaine - of the ongoing
investigative efforts by other ICOs working out of several HRDC
offices in the Lower Mainland enabled the matter to move forward
at an orderly pace and led to requests to CCRA for rulings on the
insurability of employment of nearly 100 workers. The practice of
scheduling additional interviews for the same claimant served to
elicit additional information that - sometimes - aided
in establishing some significant component of his or her claim.
Initially, I was concerned about the involvement of Richard
Blakely - Rulings Officer - in the investigative process. It is
one thing for Blakely to have assumed the role of resource person
at the meetings attended by ICOs and their supervisors in order
to explain the rulings process and to discuss with them the
indicia generally considered important by a Rulings Officer in
the course of arriving at a decision. However, it is another for
him to have participated in interviews with claimants. As the
hearing progressed, it became apparent Janet Mah was the sole
person responsible for issuing all the rulings for SRC workers
and that she had no contact with Blakely during that lengthy
process. Notwithstanding, I think it is difficult for outsiders
to appreciate the compartmentalization within a CCRA office that
is designed to permit an independent decision to be made. There
had been initial contact between Fontaine and Bernie Keays -
Appeals Officer - but only to the extent that Keays declined to
participate in discussions and referred Fontaine to Blakely. The
internal policy of CCRA required John Morgan, Team Leader, to
sign - on behalf of the Minister - all decision letters issued to
SRC workers even though they were based on the recommendations of
Keays in accordance with his reports. It seems to me the better
practice would be for the relevant Appeals Officer to sign and
issue the letter of decision based on his or her own work so that
responsibility for said decision is apparent at the outset. I
appreciate that the HRDC branch offices - generally - and
Fontaine's in particular were confronted with a situation that
was out of proportion to any previous investigations in that the
SRC matter concerned a single-employer and involved a large
number of workers who had allegedly been working at different
locations over an extended period. Also, one must keep in mind
that some policy and procedures were being developed as the
matter unfolded and there was no handy instruction manual to
follow in view of the scale of the investigation. Under the
circumstances, the methodology developed by Fontaine was - in my
opinion - fair and reasonable and afforded claimants a full
opportunity to present facts in support of their
position.
[549] In my view, the quality of interpretation services
provided during HRDC interviews was sufficient under the
circumstances and I am satisfied no appellant suffered as a
result. In ordinary matters that will probably never be the
subject of litigation, I do not see a problem if a claimant
chooses to use a family member or friend as an interpreter. In
the same context, if an HRDC employee interprets during an
interview - either alone or in addition to the interpreter
brought in by a claimant - that will be acceptable on most
occasions. However, where there is reason to believe a matter
will be contentious and it is reasonable to expect that a great
deal of time and effort may be spent determining the precise
words spoken, in my opinion, it is money well spent to retain the
services of an independent court certified interpreter. In making
that comment, I am aware this practice was followed as often as
possible but that due to budgetary restraints within individual
HRDC offices, the ability to do so on a consistent basis was
limited.
[550] The hearing of these appeals was facilitated by
the methodical presentation of exhibits and otherwise benefited
from the overall organization of a large amount of material in an
orderly manner. The scheduling of witnesses adhered to a
reasonable timetable and I am satisfied there was full and frank
disclosure of all relevant evidence capable of having an impact
on the appeal of any appellant. In this regard, all parties to
the litigation were well served by the excellent quality and
consistency of the Punjabi-English, English-Punjabi
interpretation/translation undertaken by Russell Gill.
[551] Counsel for the respondent are to be commended for
the quality of their submissions and their conduct throughout,
especially for their assistance on many occasions whether in
sorting through a mass of information to locate a significant
reference or in preparing material such as schedules or
charts.
[552] The efforts of Darshen Narang - agent for the
first-named group of appellants - are appreciated in respect
of his willingness to cooperate in terms of scheduling, his
familiarity with the large amount of material contained within
the exhibits and his representations on behalf of those
appellants he represented.
[553] The other agents who appeared before me and those
appellants who represented themselves did their best to advance
their cause and documents relevant to their appeals - contained
within a separate binder - were filed as exhibits in order that
they could be referred to in the course of their testimony.
Signed at Sidney, British Columbia, this 12th day of January
2005.
Rowe, D.J.
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