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Citation: 2003TCC868
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Date: 20031201
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Docket: 2003-1205(EI)
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BETWEEN:
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KIM CASE,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
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and
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ANGELA SADZAK,
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Intervenor.
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REASONS FOR JUDGMENT
McArthur J.
[1] The
issue before me is simple. Did the Appellant, Kim Case (Kim) work 124 hours or
416 hours or somewhere in between for 428994 B.C. Ltd. o/a Plaza One Hour
Drycleaning (Plaza) owned by Angela Sadzak (Angela) the Intervenor. Both Kim
and Angela testified. Angela was the Respondent's witness rather than giving
evidence independently as the Intervenor. The question boils down to one of
credibility. Their version of events are almost diametrically opposed.
[2] First,
very briefly, I will relate Kim's side of the story. In May 2002, she boarded a
horse with Angela's horse-boarding business (Sadzaks Quarter Horses). Angela
also operated Plaza, a dry cleaning business. She hired Kim to work for Plaza.
Kim stated that she was hired at $8 per hour, from 9:00 a.m. to 3:30 p.m., five
days a week and that she worked from May 22 to August 22, 2002, for a total of
416 hours. She recorded this by crossing out complete days on a calendar. She
received, as payment, two cheques in June: one for $56.96 and the other for
$97.64. She kept asking Angela for her pay but was told to wait until the
horses were sold or her accountant (Angela's brother) got caught up with the
books. She worked from May 22 to August 22, 2002 in a "sweat shop"
without being paid other than the $154 referred to above.
[3] On
December 1, 2002, Kim filed a complaint with the Employment Standards Branch.
She claimed a total of 416 hours worked from May 22 to August 22, 2002 at $8
per hour for a claim of $3,328. The Director of Employment Standards
(Standards) ruled against her, finding that she worked only 124 hours as stated
by Angela.
[4] Shelly
Burchnall, a delegate of Standards interviewed the five or six witnesses that
Kim recommended in support of her position. While they were aware that she
worked at Plaza, they were of no assistance with regard to her hours worked.
[5] Now
we turn to Angela's story, in brief. Angela stated that Kim did work full-time
at the drycleaners from May 22 to August 22, 2002 but only part-time and for a
total of 124 hours. Kim was paid only 19 hours because she insisted that
any wages earned be applied to monies owed for feed and board of her horse at Angela's stable/arena; except for
the 19 hours, her wages never exceeded the board owed.
[6] Angela
added that Kim imposed herself on her and very reluctantly she gave Kim a
part-time job at the drycleaners. Kim had no regular schedule and would show up
at her will. She kept track of Kim's hours. By August, Kim owed her a
significant amount for the board of her horse. She stated that Kim initiated
the arrangement at the Plaza in lieu of the board of her horse and if Kim's
hours claimed were correct, she would be "making more money than me".
Analysis
[7] Shelly
Burchnall of Standards prepared an impressive report dated May 6, 2003. While it is hearsay, neither Kim or Angela disputed its
authenticity. Her
investigation was made upon the complaint of Kim under section 74 of the
British Columbia Employment Standards Act.
[8] Kim
directed Ms. Burchnall to six witnesses. She interviewed four of them and two
could not be reached. The first witness was Cathy Soulliere and
Ms. Burchnall recorded the following:
Cathy Soulliere
("Soulliere")
Case stated Soulliere is a very
honest person and would tell the truth concerning the actual number of hours
Case worked, regardless of whether she was still an employee of Sadzak's. Case
was insistent that any information Soulliere gave would be credible and to be
taken verbatim.
Soulliere stated she could not confirm
any days Case worked, but knew she did not work full-time. Soulliere worked
Tuesdays and Thursdays and some days when she arrived at work Case would be
there, and some days not. Soulliere stated "Kim was a friend of Angela's
and would be at the drycleaners visiting, but now always working".
"She came and went as she pleased and didn't write her hours down like the
other staff." "Angela would mark 'K's' on the payroll calendar days
when Kim worked." Soulliere stated it was her understanding that Case was
"working at the drycleaners in lieu of the board for her horses".
Soulliere said she was a long-term
employee at the drycleaners and had always wanted full-time work. She worked as
many hours as Sadzak could possibly give her and denied ever wanting to
"simply work part-time".
The evidence of the other witnesses was much the same. None of the
witnesses verified that Kim worked full-time at Plaza. Generally they were
under the impression that Kim was working part-time to pay for the board of her
horse. At page 12 of her report, Ms. Burchnall stated:
...I prefer the evidence and
explanation of the employment relationship given by Sadzak. Her record of the
hours and dates worked by Case were consistent with hours worked at the
drycleaners during the months of May to August 2001 and 2002, by her other
employees. In my opinion, the witnesses, including Case's, gave credibility and
weight to Sadzak's version of the facts, specifically with their recurring
account Case was "working part-time at the drycleaner for the board of her
horse".
[9] The
Respondent's counsel referred to Faryna v. Chorny at page 357 where O'Halloran J.A.
stated:
... the real test of the truth of the story of a
witness in such a case must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions. Only thus can a Court satisfactorily
appraise the testimony of quick-minded, experienced and confident witnesses,
and of those shrewd persons adept in the half-lie and of long and successful
experience in combining skilful exaggeration with partial suppression of the
truth. Again a witness may testify what he sincerely believes to be true, but
he may be quite honestly mistaken. For a trial Judge to say "I believe him
because I judge him to be telling the truth", is to come to a conclusion
on consideration of only half the problem. In truth it may easily be
self-direction of a dangerous kind.
Obviously,
Angela's version is more in "harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and those conditions".
[10] Reviewing what we have: (i) Kim's witnesses interviewed by
Ms. Burchnall did not assist her position. She had no witnesses to
corroborate her position at trial; (ii) the persons to whom Kim had directed
Ms. Burchnall, supported Angela's position rather than Kim's, particularly with
respect to Kim working part-time.
[11] Angela's version of work in lieu of board payment is more consistent
with common sense. Originally Angela put Kim on the payroll, paying 19 hours in
June 2002 and issuing wage statements. From then on, Kim's drycleaning earnings
went toward board for her horse. It stretches credibility to accept Kim's
version which would have her making more than Angela and receiving preferential
treatment over other employees who had 10 years of service. I accept Angela's
evidence over Kim's.
[12] I dismiss the appeal with an uncomfortable suspicion that the hours
presented by Angela are too low and Kim's hours are far too high. But it is no
more than a strong suspicion. It is not enough to justify my overturning the
reasoned assessment, probably based on the Shelly Burchnall's decision, which
was concluded with great care and was not successfully rebutted. I am not
satisfied that Angela was rigorously honest. She was an Intervenor yet the
Respondent appears to have paid her air fare to the hearing and called her as
its witness. Further her brother is her accountant. There were no witnesses to
support her evidence. I believe that the default judgment in Small Claims Court
was for the gross boarding fee without crediting Kim for her work although this
is not an issue I can deal with.
[13] The appeal is
dismissed and the decision of
the Minister, on the appeal made to him under section 91 of that Act,
is confirmed.
Signed at Ottawa, Canada, this 1st day of
December, 2003.
McArthur
J.
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