Date: 19990713
Docket: 97-844-UI
BETWEEN:
RICHARD BOLDUC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a determination dated April 11,
1997 by which the work done by the appellant, Richard Bolduc,
from December 24, 1995, to April 6, 1996, for the business
operating under the firm name “Robert Manègre”
was found to be insurable.
[2] The respondent based his determination on the following
facts:
[TRANSLATION]
(a) the payer is a construction contractor;
(b) during the period at issue, the appellant worked for the
payer building a hog house;
(c) the appellant was under the payer's control;
(d) the payer provided all of the necessary tools aside from
hammers and tape measures;
(e) the appellant was paid $10 an hour;
(f) the payer did not report the work to the governments and
agencies concerned;
(g) during the period at issue, there was an employer-employee
relationship between the payer and the appellant;
(h) during the week of March 31 to April 6, 1996, the
appellant worked 13 hours and was paid $130.
[3] The appellant’s evidence was made up of his
testimony alone, supported by documentary evidence. Counsel for
the respondent called Robert Manègre,
Serge Landreville and Alain Venne to testify.
[4] The facts can be summarized quite easily. The appellant
claimed that he had worked without pay on the construction of a
large hog house. He said that it was unpaid work the sole purpose
of which was to improve his knowledge of construction so that he
might eventually obtain his qualification cards so as to be able
to work in that field.
[5] The appellant also said that he obtained permission from
Robert Manègre, who was in charge of part of the
construction site, to go to the site whenever he was available.
There were two groups of workers on the site, those under
Mr. Manègre’s supervision and those for whom
the owner of the hog house under construction was directly
responsible.
[6] The appellant further stated that he was receiving
unemployment insurance benefits at the time and was always
available to take paid employment. He worked on the construction
site basically to improve his knowledge of construction, since at
the time he had knowledge of and qualification cards for only
formwork erection or, in other words, the installation of forms
for foundations.
[7] The evidence showed that the appellant’s case was
also the subject of proceedings before the board of referees. The
appellant gave that administrative tribunal the same
explanations, and on that basis was able to win the case.
[8] The appellant also told both this Court and the board of
referees that Mr. Manègre, as a result of his many
problems with various government agencies, had sent for him and
offered him $5,000 if he would say that he had been paid for the
work he did building the hog house. Finally, the appellant said
that he had categorically refused Mr. Manègre’s
offer.
[9] When Robert Manègre testified, he referred to the
very many problems he had experienced with respect to the
construction work on the hog house. He said that the scope of the
project had required him to hire several workers, who numbered
more than 10 at one point. He testified that all of them, without
exception, were paid $10 an hour in cash.
[10] The hours of all the workers, including the appellant,
were recorded on a sheet that stated the given name of each
worker, again including the appellant. Each week, everything was
written up and submitted to the owner of the hog house under
construction, who gave Mr. Manègre a cheque to pay the
invoice indicating the hours worked by the various
individuals.
[11] The cheque received was then cashed and the employees
were paid in cash. Mr. Manègre clearly and unequivocally
stated that the appellant was part of the crew of workers. He
clearly stated that the appellant was paid $10 an hour like all
the other workers. He said that he did not remember meeting with
the appellant to incite him to lie in return for $5,000.
[12] Mr. Manègre had to make an assignment of his
property as a result of all the trouble he had with
workers’ insurability and with income tax assessments.
Analysis
[13] I noted that Mr. Manègre was very unhappy with the
situation, since he obviously did not want to hurt the case of
the appellant, whom he had known for a very long time. However,
he was very clear, firm and specific about one fundamental aspect
of the case, namely that Richard Bolduc worked for him and was
paid $10 an hour like all the other workers who were hired.
[14] Why would he have lied about this aspect of the case?
Having made an assignment of his property, he could not suffer
any consequences. As well, it would imply that he had defrauded
the owner of the hog house by invoicing him for time he was not
paying for. Yet the duration of the work was such that the owner
of the hog house would never have accepted, or would certainly
have become aware of, the fraud, especially since the weekly
payments were preceded by a very detailed description of the
workers and the hours worked.
[15] The hours were recorded and checked prior to payment and
I do not think that the agricultural producer could have been
duped in that way without complaining, especially since the hours
claimed were numerous and regular.
[16] As for the $5,000 offered to incite the appellant to lie,
I did not see or understand what interest Mr. Manègre
could have had in making such an offer. I believe that the
appellant made the whole thing up basically to improve a doubtful
or even implausible explanation.
[17] The appellant was receiving unemployment insurance;
legally, he could not work and had to be available at all times.
The explanation that he was working without pay, being trained
and expanding his knowledge made his case somewhat appealing even
though questionable and not very plausible.
[18] His counsel skilfully pointed out that it would have been
in his interest to report his hours with a view to eventually
taking the test to obtain the qualification card he wanted. Yet
the appellant already had his hours, since he had taken the test
in question a few times.
[19] Counsel suggested that the Court should decide on the
basis of the interests underlying the testimony of the various
people involved, including the appellant. On that basis, there is
no doubt in my mind that it was very much in the
appellant’s interest to lie, if only because of the
obligation to repay the unemployment insurance benefits, the
associated penalties and, finally, the added income that would
have to be reported on his tax returns after T4s were issued.
[20] This is a case in which all of those involved in the
clandestine work lost out.
[21] Although the appellant’s memory was excellent when
he testified—everything was no doubt made easier by the
fact that this was not the first time he had to explain his
version of events—the Court does not believe him and
concludes that, beyond a shadow of a doubt, he was paid when he
worked on the construction of the hog house.
[22] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 13th day of July 1999.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 30th day of April
2000.
Erich Klein, Revisor
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