Date:
20090402
Dockets: A-228-08
A-229-08
A-230-08
Citation:
2009 FCA 106
CORAM: BLAIS
J.A.
EVANS
J.A.
RYER
J.A.
Docket: A-228-08
BETWEEN:
LAKHBINDER KAUR BAINS
(by her litigation guardian Swaran Singh
Bains)
Appellant
and
THE MINISTER
OF NATIONAL REVENUE
Respondent
Docket: A-229-08
BETWEEN:
SWARAN SINGH
BAINS
Appellant
and
THE MINISTER
OF NATIONAL REVENUE
Respondent
Docket: A-230-08
BETWEEN:
BALWINDER KAUR BAINS
(by her
litigation guardian Swaran Singh Bains)
Appellant
and
THE MINISTER
OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on April 2,
2009)
EVANS J.A.
[1]
The
appellants appeal from a decision of the Tax Court of Canada (2008 TCC 179) in
which Deputy Judge Rowe allowed their appeals, in part, from a decision of the
Minister of National Revenue determining their hours of insurable employment
and insurable employment income from May to September 1997 for the purpose of
the Employment Insurance Act, S.C. 1996, c. 23.
[2]
The male
appellant, Swaran Singh Bains, who is now nearly 80 years old, is the father of
the female appellants, Lakhbinder Kaur Bains and Balwinder Kaur Bains, who have
cognitive disabilities and are virtually illiterate. In 2007, they all worked as
berry pickers, and performed associated tasks, on farms in the Lower Mainland
of British Columbia.
[3]
The Tax
Court Judge heard their appeals, along with those of 72 other appellants,
following an investigation by the Canada Revenue Agency into fraudulent schemes
to enable berry pickers to increase the amount of employment insurance benefits
that they claimed in the winter months when they were not working.
[4]
He found
that the appellants had worked more insurable hours than the Minister had
determined, but less than the number of hours that appeared on the records of
employment issued to two of the appellants by the employer, S & S
Harvesting Ltd. (“SSH”). However, he refused to increase the amounts of the
appellants’ insurable earnings in order to reflect these extra hours of work.
[5]
The Tax
Court Judge found that, in order to obtain records of employment at the end of
the picking season, the appellants had to endorse cheques made payable to them,
allegedly as remuneration for their labour, and hand them back to the employer.
These cheques, which the appellants endorsed in blank, were subsequently
deposited into a bank account under the control of SSH or its guiding mind.
They were for significantly larger amounts than the appellants would have
earned, at their hourly rate of pay, for the extra hours of insurable
employment allowed by the Tax Court Judge.
[6]
The amount
of EI benefits payable to a claimant is related to the amount of the claimant’s
wages. The appellants say that the Tax Court Judge erred when he refused to
increase their insurable earnings to reflect the additional hours that he found
that they had worked.
[7]
The
relevant statutory provisions are contained in the Insurable Earnings and
Collection of Premiums Regulations, SOR/97-33 (“Regulations”).
|
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,
…
…
(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.
|
2.
(1) Pour l’application de la définition de « rémunération
assurable » au paragraphe 2(1) de la Loi et pour l’application du présent
règlement, le total de la rémunération d’un assuré provenant de tout emploi
assurable correspond à l’ensemble des montants suivants :
a) le montant total, entièrement ou partiellement en espèces, que
l’assuré reçoit ou dont il bénéficie et qui lui est versé par l’employeur à
l’égard de cet emploi;
[…]
(2) Pour l’application de la présente partie, le total
de la rémunération d’un assuré provenant d’un emploi assurable comprend la
partie impayée de cette rémunération qui n’a pas été versée à cause de la
faillite de l’employeur, de sa mise sous séquestre effective ou imminente ou
d’un non-paiement de rétribution à l’égard duquel l’assuré a déposé une
plainte auprès de l’organisme fédéral ou provincial de main-d’oeuvre. Est
exclu du total de la rémunération tout montant impayé qui se rapporte au
temps supplémentaire ou qui aurait été versé en raison de la cessation de
l’emploi.
|
[8]
Despite the absence
of direct evidence respecting these particular appellants, the Tax Court Judge found that it
must have been understood by the appellants (or, more accurately, by the male
appellant who spoke for himself and his daughters) that they had to endorse the
cheques back to the employer in order to obtain their records of employment,
which they needed to be able to claim EI benefits. The Tax Court Judge also
found that the appellants endorsed the cheques in blank and handed them over to
an agent of SSH. The appellants no longer challenge these findings of fact.
[9]
On the
basis of these findings, the Tax Court Judge concluded that the appellants had
not discharged their burden of proving on a balance of probabilities that they
had “received or enjoyed” the cheques within the meaning of subsection 2(1) of
the Regulations. Consequently, the amounts of the cheques could not be included
in the appellants’ insurable earnings. The records of employment issued to the
appellants had misrepresented both the number of hours that they had worked and
the amounts paid to them as wages.
[10]
The
appellants argued that the Judge erred in law in holding that they had not
“received” the amounts of the cheques since they had physical possession of the
cheques, albeit momentarily, regardless of whether they also “enjoyed” the
proceeds of the cheques.
[11]
We do not
agree. Whether the facts as found by the Tax Court Judge fall within subsection
2(1) of the Regulations is a question of mixed fact and law. The Tax Court
Judge decided that the appellants did not “receive” the amounts represented by
the cheques when the cheques came into their physical possession solely for the
purpose of being endorsed back and handed over to an agent of the employer. In
the absence of any readily extricable question of law which he decided
incorrectly, the Judge’s decision can only be set aside for palpable and overriding
error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[12]
We are not
persuaded that the Tax Court Judge made any such error in his application of
the statutory language to the facts, which indicate that the appellants
exercised no real control over the cheques.
[13]
Nor are we
persuaded that any general question of law arises about the interpretation of
the words “received or enjoyed” which, in our opinion, are to be understood as
having their ordinary meaning. The appellants argued that the Tax Court Judge
erred in law by not treating as separate transactions the handing of the
cheques to the appellants, and the appellants’ endorsing them in blank and
returning them to the employer.
[14]
We do not
agree. The Tax Court Judge’s treatment of what transpired was based on the
particular facts before him. In our view, it was entirely open to him to regard
what happened as essentially one transaction.
[15]
We would
only note that subsection 2(2) of the Regulations provides that unpaid wages
from insurable employment may be included in a claimant’s insurable earnings if
the claimant has filed a complaint with the relevant labour authorities, a
course of action that was presumably open to the appellants. Whether this
recourse is still available to them we do not, of course, know.
[16]
For these
reasons, the appeals will be dismissed with costs.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKETS: A-228-08,
A-229-08, A-230-08
APPEAL
FROM A JUDGMENT OF THE TAX COURT OF CANADA DATED APRIL 16, 2008, DOCKET NO.
2002-177 (EI) (2008 TCC 179).
STYLE OF CAUSE: Lakhbinder
Kaur Bains, Swaran Singh Bains, Balwinder Kaur Bains v. Minister of National
Revenue
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: April 2, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: (BLAIS, EVANS, RYER JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Sarah Khan
Pawanjit
Joshi
James
Sayre
|
FOR
THE APPELLANTS
|
|
Michael Taylor
Stacey
Michael Repas
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
BC Public Interest Advocacy Centre
Vancouver,
British Columbia
Community
Legal Assistance Society
Vancouver
British Columbia
|
FOR
THE APPELLANTS
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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