Date: 19971209
Docket: 96-2046-UI
BETWEEN:
CHANTALE GÉLINAS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Garon, J.T.C.C.
[1] This is an appeal from a determination by the Minister of National Revenue that the appellant’s employment with Ferme G.N.F. Inc. (“the payer”) from March 11 to June 7, 1991, and from May 25 to August 7, 1992, was not insurable because it was not held under a contract of service.
[2] The allegations of fact on which the Minister of National Revenue relied in determining that the employment was not insurable are set out in paragraph 5 of the Reply to the Notice of Appeal, which reads as follows:
[TRANSLATION]
5. In making his determination, the respondent Minister of National Revenue relied, inter alia, on the following facts:
(a) the payer ran a farming business that specialized in sheep raising;
(b) Guy Dupont managed the payer’s business;
(c) he claims that he hired the appellant on a full-time basis to file cards on the ewes, do the cleaning and feed the animals;
(d) during the periods at issue, the appellant did not work full time for the payer;
(e) she worked a few times on the cards for the sheep barn and occasionally cleaned the payer’s office;
(f) the paycheques the payer gave the appellant included the wages of the appellant’s husband, who worked for the payer;
(g) the appellant’s representative, Carol Abud, did not want the appeals officer to question the appellant;
(h) the payer and the appellant entered into an arrangement to qualify the appellant for unemployment insurance benefits;
(i) during the periods at issue, there was no employer-employee relationship between the appellant and the payer.
[3] Through her counsel, the appellant admitted subparagraphs (a), (b), (c) and (g) of paragraph 5 of the Reply to the Notice of Appeal. The other subparagraphs of paragraph 5 were denied.
[4] The appellant was the only person who testified on her behalf. At the respondent’s request, testimony was given by an investigator from the Department of Human Resources Development, an appeals officer from Revenue Canada, the appellant’s husband, Jean-Pierre Pearson, and Guy Dupont, the payer’s representative.
[5] The appellant stated that during the periods at issue, she and her husband, Jean-Pierre Pearson, lived in the payer’s farmhouse. According to her, Mr. Pearson looked after their only child, who was just under a year old, during her first work period. She said that during her second work period, Mr. Pearson looked after their two children (the second having been born in December 1991) while she worked for the payer. According to her, her husband did not work for the payer during the two work periods in question.
[6] When the appellant and her husband arrived in the region in 1991, the appellant had no experience as a shepherd, but she had done other kinds of farm work.
[7] The appellant explained that she arrived at the farm at about 7:00 a.m., fed the ewes, separated the ewes from the lambs and put them in a pen. She had to ensure that each lamb was drinking milk from its mother, and she tagged them and gave them injections. During the afternoon of a working day, the appellant, with Mr. Dupont’s help, might separate the mothers from the lambs that were old enough. The lambs were weighed to determine which should be sent to the slaughterhouse. She usually finished her work at about 4:00 p.m. According to her, she worked 35 to 45 hours a week. She said that there were two sheep barns on the farm, a small one and a large one. The farm had 400 ewes at that time; 300 to 350 of them lambed during each of the years in question. Each ewe normally gives birth to two lambs.
[8] The appellant used the payer’s tools. The operation of the payer’s sheep barn was supervised by Guy Dupont, a shareholder of the payer. He was the one who gave the appellant instructions. The appellant was, of course, not liable for the payer’s debts.
[9] The appellant also explained that she had to set up a card system. For each ewe, a card had to be prepared showing the number of lambs the ewe had had, whether they were female or male, whether the lambing had gone well, whether the ewe’s lambs had died, whether the lambs were of good quality and whether the ewe had milk. “Problem ewes” were not kept. When the appellant and her husband moved into the farmhouse in 1991, there was a room in which cards on the sheep had been stored. The cards on some of the ewes could no longer be found. She therefore worked on the cards for the lambs born in 1991 and earlier. Tags were put on the lambs’ ears. She explained the need to keep records for the ewes. It is the shepherd who has to fill out the cards.
[10] Her gross pay was $338, which meant that her take-home pay was $200 a week. She was paid weekly by cheque. The appellant stated that the cheques were sometimes not honoured because the payer had no funds available. She was not paid in cash by the payer. Near the end of the 1991 period, the payer had the necessary funds.
[11] Mr. Dupont was in the workplace regularly. During the lambing season, he was there during the evenings, but not overnight.
[12] Accommodation was provided by the payer. The appellant's husband had to work a certain number of hours every week to make up for the provision of accommodation. In this regard, she testified that Mr. Pearson had to do about 10 hours of work a week [TRANSLATION] “to pay for housing”, as she put it.
[13] The appellant also stated that she worked for the payer in 1992. Her work was more outside the house. The fence building began, rocks were picked up and the pastures were prepared. Every morning, it was necessary to go around the pastures to see if any ewes had lambed in the fields. If so, they had to be picked up with a tractor and trailer and taken with the lambs to the sheep barn. Ewes and lambs that had been separated from their mothers were kept outside. Sick ewes and ewes that had to be with their lambs were kept inside.
[14] The appellant's working hours in 1992 were the same as in 1991, namely from 7:00 a.m. to 4:00 p.m. She was the only one doing this work. Other people harvested hay, but she did not take part in it; she was pregnant. All she did was look after the lambs. She refused to put the cards concerning the lambs on computer, and she gave the reasons for her refusal. The total number of sheep went up again in 1992.
[15] In cross-examination, the appellant categorically denied that she had not worked consecutive weeks. She met with Serge Picard of the Department of Human Resources Development, but according to her he did not take what she told him into account. She refused to sign a declaration drawn up by Mr. Picard. In the end, she said that she had spent about an hour a day preparing the cards. The people working in the fields did not necessarily come to the farm. According to her, the payer might have had about 20 fields. The fences on the farm were in poor condition.
[16] Guy Savard, a senior investigation officer from the Department of Human Resources Development, stated in his testimony that he was in charge of the investigation conducted with the Royal Canadian Mounted Police into the application of the Unemployment Insurance Act. The investigation concerned the payer and its employees. A search was carried out on December 8, 1995, at Guy Dupont’s home. A blitz was organized to question the payer’s employees, among others. Five investigators and a member of the RCMP divided up the questioning to be done. Most of the employees met with two investigators from the department in question. Mr. Savard was accompanied not by an investigator but by a member of the RCMP, Gina Thériault. One of the people Mr. Savard questioned with this RCMP member as part of the investigation was Jean-Pierre Pearson, the appellant’s husband. They met with Mr. Pearson twice. Mr. Pearson came the first time following a telephone call from Mr. Savard or Gina Thériault. After being given a warning, he decided to consult a lawyer. He was met with the afternoon of the same day, after being given a warning. He signed the warning but refused to sign the declaration that was taken down. That declaration was adduced in evidence although counsel for the appellant objected to this. The declaration reads as follows:
[TRANSLATION]
I went to the Motel Val Moni in Amqui on 31-01-96 after being requested to do so in a telephone call I received on 31-01-96. My meeting was scheduled for 1:00 p.m. in room 310. I identified myself using my social insurance number, 231-579-061, and my driver’s licence, P6255-190552-07. I began working for Ferme G.N.F. Inc. on or about 15-12-91 and I stopped in 1994; during the entire period, I received a record of employment each year with the minimum number of weeks or a few additional weeks. I acknowledge that record of employment No. N82288787, which I received for the period from 16-12-91 to 20-03-92, does not reflect reality since I continued working after 2-04-92 because Mr. Dupont told me: I will give you a record of employment so you can be entitled to unemployment insurance benefits and you will continue to look after the farm (sheep barn) as before. That meant that he could save a salary, and a few times, when there were cheques made out to other people and countersigned by me, that was money he was giving me in addition to my unemployment insurance. The same is true of the other years; the scenario was the same in 1993, with record of employment No. N85141558 for the period from 4-01-93 to 2-04-93, and for 1994, with record of employment No. N87540000 for the period from 10-01-94 to 18-03-94. I acknowledge that when I filed my claims for benefit on 26-03-92, 8-04-93 and 24-03-94, the signature on the claims was mine and the first and last days worked corresponded to the records of employment. The reason I did this was that I did not have much choice; my family had to be able to live and had to have a roof over its head, and with what Guy Dupont was proposing to me, I had practically no choice. As for Marie Paule Pelletier, she did not work between March and June 1992; I was the one who looked after the farm. The same is true of my spouse, Chantale Gélinas: she hardly worked at all, and in any event she did not work for 10 weeks between May and August 1992, because I was still the one doing the work. As for Guy Dupont, I cannot say whether he worked, but he was often there because he lived below me, opposite the sheep barn.
I acknowledge that when I filed my claims for benefit on 26-03-92, 8-04-93 and 24-03-94, I knew that I would continue to work for Ferme G.N.F. Inc. and therefore that there was no shortage of work or work stoppage. It was a suggestion made by Guy Dupont, who made me because he knew that I did not have much choice, since he knew I could not find work elsewhere because of my family situation. He used that to offer me this agreement. I acknowledge that it was not right to have these false records of employment for 1992, 1993 and 1994, but when you are caught up in something, it is not so easy to get out of it. I also acknowledge that when I filled out my unemployment insurance benefit cards between 1992 and 1994, I was making a false representation every time I did so, because I knew that I had worked.
I acknowledge that everything written in this declaration by Guy Savard is consistent with what was discussed and represents the truth and that I was never pressured or threatened so that I would sign this declaration.
I refuse to sign this declaration even though I know it represents the truth because of information I have received from a lawyer suggested to me by legal aid.
Declared before me __________________
at Amqui Signature of Declarant
this 31st day of January 1995 Position____ Tel.:______
(signature) Address_____________
______________
[17] In his testimony, Mr. Savard stated, inter alia, that the record of employment indicating that Mr. Pearson had worked from December 16, 1991, to March 20, 1992, did not reflect reality since he had continued to work pursuant to an agreement reached with Mr. Dupont that required him to keep looking after the farm. According to Mr. Savard, Mr. Pearson confirmed that the appellant did not work for 10 consecutive weeks and that he was the one who continued to work so that he could receive unemployment insurance benefits. According to Mr. Savard, Mr. Pearson stated that he did the work for the appellant.
[18] Mr. Dupont, the payer’s representative, received unemployment insurance benefits during the appellant’s employment period in 1991. During the appellant’s second employment period, in 1992, Mr. Dupont worked for the Société d’exploitation des ressources de la vallée for at least eight weeks, from June 14 to about August 22.
[19] Mr. Savard’s testimony was followed by that of Mario Paquet of Revenue Canada, who dealt with the appellant’s file as an appeals officer. He explained that he had analysed all the evidence gathered during the investigation by the Department of Human Resources Development in the appellant’s case and 10 related cases. In reaching his decision, Mr. Paquet relied, inter alia, on Mr. Pearson’s declaration reproduced above, which in substance affirmed that the appellant had not worked for 10 weeks from May to August 1992. He also relied on the appellant’s declaration that it was not true that she had worked in 1991. He also referred to Mr. Dupont’s declaration of October 1, 1995, that the appellant had done cleaning, filed the cards on the ewes and prepared documents. Mr. Paquet concluded by saying that he was not in possession of facts [TRANSLATION] “that contradicted all the information I had in the file”. Mr. Paquet also stated that he had himself had a discussion with Mr. Dupont.
[20] Mr. Dupont’s version must also be considered. During the periods at issue, he worked mainly for the Société d’exploitation des ressources de la vallée. He also managed Ferme G.N.F. Inc. Mr. Dupont stated that during the periods with which we are concerned, he went to the farm every other day. He described himself as a part-time supervisor.
[21] He described the appellant’s work by saying that he had asked her to update the cards on the sheep so that the necessary data could be put on computer. She also looked after the sheep barn and fed the animals. According to him, she did 40 to 50 hours of work a week. She also washed the windows of the sheep barn and did other cleaning. He explained that the major lambing period every year was in December, January or February. In March and April, the bulk of the work involved feeding the animals. He said that sheep had been raised on the farm since 1976.
[22] Mr. Pearson, who was not a shareholder of the payer, testified about his interview with an officer from the Department of Human Resources Development, Mr. Savard. He explained that he had refused to sign the declaration drawn up by Mr. Savard at the end of the interview because his wife, the appellant, had told him that she had been informed by a lawyer that he was not required to sign. He said that the interview with Mr. Savard and an RCMP officer had gone “very calmly”. He expressed his agreement with the declaration as follows:[1]
[TRANSLATION]
Q. Did you agree, did you agree with . . . where it is stated:
I acknowledge that everything written in this declaration by Guy Savard is consistent . . . .
You initialled it; do you agree with it?
A. Yes . . . well, I did agree, but there are still a number of things, it’s like what’s said, it’s like I say at a given time, I mean about questions of time, questions of . . . how can I put it, it wasn’t, I didn’t give exact answers to the questions he was asking, which could have gone back, which really went back quite far. And I often said as well, I think it’s written down, I wasn’t surmising but I wasn’t answering in the affirmative by giving a real yes, but that’s how it was. I mean that it happened like that, and about dates or about a certain case, it was quite possible, but even I could not answer with a straight yes or no. You know, I mean that there were many things that really went back quite far, and that’s it, that's all.
He also gave the following explanation of the assertion in the declaration that the appellant had not worked for 10 weeks between May and August 1992:[2]
[TRANSLATION]
That for instance, “she did not work”, no, that’s not . . . she worked but I still did some work. Just like that, what was written, it’s like I said earlier, it’s not . . . exactly, it’s as if he wrote down “she was not working” — it might mean that she didn’t work for three months or that she worked during the week but I still did some work, but I didn’t mean that Chantale didn’t work at all, that I was the one who did the work.
He added the following in response to the next question: [3]
[TRANSLATION]
CATHERINE LETELLIER:
. . . she did not work between March and June 1992; I was the one who looked after the farm. The same is true of my spouse, Chantale Gélinas: she hardly worked at all, and in any event she did not work for 10 weeks between May and August 1992, because I was still the one doing the work.
A. No, it’s like I just said, answering with a yes or a no would contradict what I said, because basically, it means that I said she didn’t work. But I never said that she didn’t work.
Q. OK. But did she work for 10 consecutive weeks?
A. Yes, certainly.
[23] In cross-examination, he answered yes to the following question by counsel for the appellant: [TRANSLATION] “So you are telling us that Ms. Gélinas did in fact work from May to August 1992?”
[24] In this case, I must determine whether there was a contract of service between the appellant and the payer during the two periods in question.
[25] The following is alleged in subparagraphs (d) and (e) of paragraph 5 of the Reply to the Notice of Appeal:
[TRANSLATION]
(d) during the periods at issue, the appellant did not work full time for the payer; [and]
(e) she worked a few times on the cards for the sheep barn and occasionally cleaned the payer’s office . . . .
[26] If I accepted the testimony given by the appellant at the hearing, I would have to conclude that the allegations in these two subparagraphs are unfounded. However, the appellant’s version is contradicted to some extent by the version attributed to Jean-Pierre Pearson in the declaration that he did not sign but did initial. In particular, he initialled the comment at the end of the declaration, which I will reproduce again for ease of reference:
[TRANSLATION]
I refuse to sign this declaration even though I know it represents the truth because of information I have received from a lawyer suggested to me by legal aid.
[27] A careful analysis of the testimony given at the hearing makes it clear that Mr. Pearson never stated that what was attributed to him in the declaration was untrue. It is true that he expressed some reservations about the declaration in his testimony at the hearing; I would even say that there seems to be a certain contradiction in some respects between his testimony before the Court and the declaration recorded by Mr. Savard. On the other hand, he stated that the interview with Mr. Savard and Gina Thériault went “very calmly”; he did not complain about the way it was conducted.
[28] Furthermore, the appellant acknowledged that the version of her work for the payer attributed to her by Serge Picard, the investigator from the Department of Human Resources Development, differed from the version given at the hearing.
[29] All things considered, I prefer Mr. Pearson’s version, as told to Mr. Savard and a member of the RCMP, to the appellant’s version. I am inclined to believe that Mr. Pearson’s declaration is in substance correct as regards the work done by the appellant. It seems likely to me that the appellant did work for the payer during the two periods in question. I find that she did not work either full time or continuously. Thus, I conclude from the evidence that the allegations of fact in subparagraphs (d) and (e) of paragraph 5 of the Reply to the Notice of Appeal have not been refuted.
[30] I note here that Guy Dupont’s testimony does not entirely corroborate the appellant’s in respect of the first work period. For example, he was not present in the workplace to the extent indicated by the appellant in her testimony before the Court.
[31] When all is said and done, I do not accept the appellant’s version with respect, inter alia, to the extent of the work she did for the payer during the two periods in question.
[32] In my view, it has not been shown that the appellant was required by a contract of service to perform specific work of the nature she described during the periods in question. Rather, what existed was convenience employment that did not meet the requirements of a contract of service, inter alia as regards the work to be done. However, it is likely that some work was done by the appellant during the two periods in question. In this regard, the allegation in subparagraph (f) of paragraph 5 of the Reply to the Notice of Appeal seems plausible to me. In any event, the burden of proof was on the appellant.
[33] I therefore conclude that there was no genuine contract between the payer and the appellant during the periods in question.
[34] For these reasons, the appellant’s appeal is dismissed.
Signed at Ottawa, Canada, this 9th day of December 1997.
“Alban Garon”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 1st day of October 1998.
Stephen Balogh, Revisor