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Citation:
2003TCC62
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Date:
20030224
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Docket:
2001-4605(EI)
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BETWEEN:
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GILLES
LANDRY,
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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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REASONS FOR JUDGMENT
Judge Angers, T.C.C.
[1] This
appeals concerns the decision of the Minister of National Revenue (the “Minister”)
dated September 11, 2001, according to which the appellant’s employment
with Roger Roy Trucking Ltd. (the “payer”) during the period from January 5 to
July 11, 1998, was insurable employment, his insurable hours were 945 and his
insurable earnings were $8,736. The appellant appeals only with respect to the
number of insurable hours accumulated during his period of employment with the
payer.
[2] In
making his decision, the Minister relied on the following assumptions of fact,
which were admitted or denied by the appellant:
[Translation]
(a) The payer operates
a transportation company for products of various kinds; (admitted)
(b) the appellant
worked as a truck driver during the period at issue; the appellant also on
occasion helped with the maintenance of the payer’s truck; (admitted)
(c)
the appellant was paid
at a rate set for each trip he
made; (admitted with an explanation)
(d) the payer
apportioned the appellant’s pay over 60-hour weeks at $700.00 each plus
vacation pay of $28.00; (admitted)
(e) the payer’s
payroll journal and the record of employment show 12 weeks’ work between
February 16 and July 11, 1998;:
the week of
February 16 to 21,
the weeks between
March 30 and May 16,
the weeks between
May 25 and June 12, and
the week of July
6 to 11;
(admitted)
(f) the appellant
made a number of trips for the payer during the weeks that are not reported in
the payroll journal; (denied)
(g) the payer has no
documentation concerning the total number of hours the appellant worked or the
dates of the trips the appellant made; (denied)
(h) the record of
employment issued to the appellant does not reflect the appellant’s hours of
work. (denied)
[3] The
appellant filed in evidence the correspondence that he had exchanged with the
Canada Customs and Revenue Agency. He explained that at the end of the period
at issue he was working for himself. He said he had worked for 12 weeks during
that period as indicated on his record of employment (A-4). He also said that,
during the weeks where he did not accumulate the expected number of hours as a
driver, he worked for the payer as a mechanic to make up the deficit. He said
he never worked for the payer as a driver before or after the weeks when he was
paid. It should be emphasized that the record of employment indicates February
16, 1998, as the first day of work.
[4] The
respondent called Charles Albert, an investigation and control officer, to the
stand. The latter had investigated the payer and the appellant. Based on the
information he had gathered, he was able to reconstruct the facts relating to
the weeks when the appellant had worked without being paid but which the payer
had accumulated until it could give the appellant a full week’s work and so pay
him his full salary. The witness compared the dates shown on these documents
and those on the record of employment, with the help of consignment notes (I‑2
and I‑4) and an invoice for a delivery of ice. He concluded that he was
dealing with a scenario involving the banking of hours of work and that the
periods worked did not correspond to the record of employment. Furthermore, the
payer’s representative, Mr. Roger Roy, admitted to Mr. Albert
that he engaged in what is called “banking”, namely, the accumulation of hours.
[5] Mr. Albert
went on to testify that, as a result of a complaint by another employee of the
payer, he made another investigation the results of which were set out in a
Table produced in evidence as Exhibit I‑5. From the consignment notes
obtained from the payer, he was able to reconstruct the dates of the trips made
by the payer’s drivers, including the appellant, as well as the dates on which
they purchased fuel. From Table I‑5 it can be concluded that the
appellant worked hours during weeks when he was not remunerated.
[6] Mr. Albert
did not manage to obtain the payroll journal or certain other documents of the
payer, such as the drivers’ log books, that would have enabled him to
reconstruct the appellant’s work schedule. Those documents were either
destroyed or simply did not exist.
[7] The
appellant challenged the validity of one of the invoices (I‑3) used by
Mr. Albert in the context of his investigation. Although the invoice does
not appear to identify the driver specifically, the appellant knew that it
involved a delivery of ice and seemed to be aware of it.
[8] Johanne Robichaud
is an appeals officer with the Canada Customs and Revenue Agency. Her mandate
was to determine the appellant’s insurable hours. For this purpose, she
analysed the facts gathered by the witness, Charles Albert, and contacted
Roger Roy, the payer’s representative. The latter confirmed to her that
the appellant and the other drivers never worked the same number of hours or
received the same salary from week to week. The reason why the salary on the
payer’s payroll journal was always shown was $728 a week is explained by the
fact that the payer accumulated hours and salaries.
[9] The
appellant signed consignment notes on dates when his name does not appear in
the payroll journal. Beginning on January 5, 1998, he purchased fuel and made
trips although he was not entered in the payroll journal. Moreover, February
16, 1998, is shown as the first day of work on his record of employment.
[10] Since
the appellant’s work schedule and his weekly remuneration cannot be
reconstructed, the Court cannot establish the number of hours that he actually
worked during the period. The evidence further disclosed that the appellant was
remunerated at a fixed rate per trip, depending on destination and not
according to an hourly rate.
[11] Given
this situation, Ms. Robichaud accordingly applied the following provisions of
subsections 10(4) and 10(5) of the Employment Insurance Regulations :
(4)
Except where subsection (1) and section 9.1 apply, where a person’s actual
hours of insurable employment in the period of employment are not known or
ascertainable by the employer, the person, subject to subsection (5), is deemed
to have worked, during the period of employment, the number of hours in
insurable employment obtained by dividing the total earnings for the period of
employment by the minimum wage applicable, on January 1 of the year in which
the earnings were payable, in the province where the work was performed.
(5)
In the absence of evidence indicating that overtime or excess hours were worked,
the maximum number of hours of insurable employment which a person is deemed to
have worked where the number of hours is calculated in accordance with
subsection(4) is seven hours per day up to an overall maximum of 35 hours per
week.
[12] Since
the appellant worked from January 5 to July 11, 1998, the Minister applied the
formula and arrived at a total of 945 hours.
[13] The
Minister proved all of the allegations of fact denied by the appellant. The
facts that were established clearly showed that the record of employment was
incorrect and that the appellant worked outside the weeks indicated on it.
Although the appellant maintains that the record of employment is correct, I
cannot overlook these facts. I therefore cannot grant any credence to the appellant’s
version. The latter adduced no other evidence in support of his determination
of the number of hours of insurable employment. Consequently, I must uphold the
Minister’s determination. For these reasons, the appeal is dismissed.
Signed at Edmundston, New Brunswick, this 24th day
of February 2003.
J.T.C.C.
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