2002-1986(EI)
BETWEEN:
SURINDER KHUNKHUN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on September 3, 2002, at Kelowna, British Columbia,
by the Honourable Judge Campbell J. Miller
Appearances
Agent for the Appellant: Bhupinder Dhanant
Counsel for the Respondent: Jasmine Sidhu
JUDGMENT
The appeal pursuant to subsection 103(1) of the Employment Insurance Act is allowed, without costs, and the decision of the Minister of National Revenue on the appeal made to him under section 91 of that Act is varied on the basis that the Appellant worked 438 hours of insurable employment in 2000 with Surjit Nagra during the period from July 1, 2000 to October 21, 2000.
Signed at Ottawa, Canada, this 13th day of September, 2002.
|
"Campbell J. Miller" |
J.T.C.C.
Date: 20020913
Docket: 2002-1986(EI)
BETWEEN:
SURINDER KHUNKHUN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
REASONS FOR JUDGMENT
Miller, J.
[1] Surinder Khunkhun claimed she worked as an orchard worker during the summer and fall of 2000 (July 1 to October 21) to the extent of 961.5 insurable hours. The Respondent decided that Ms. Khunkhun was not employed in an insurable employment during that period at all. This case is entirely a matter of credibility. Did Ms. Khunkhun work 961.5 hours as an orchard worker in 2000?
[2] I have some difficulty in fully evaluating the evidence of the Appellant's witnesses as all three provided their evidence through an interpreter. While I appreciate the interpreter was doing his best, the reaction of counsel for the Respondent, who understood some Punjabi, and the uninterrupted chats between the interpreter and the witness (despite repeated requests that those conversations be interpreted) left me with concerns as to whether the witnesses did or did not understand relatively straightforward questions, whether the questions were interpreted accurately, or whether the witnesses were being intentionally evasive. This is the more problematic given it is the very credibility of the Appellant's witnesses which should be determinative of the matter.
[3] Ms. Khunkhun testified that she worked for Surjit Nagra, her brother-in-law, as an orchard worker from July to October in 2000. She claimed she worked six days a week from 7:00 a.m. to 5:30 p.m. with a one-half hour break for lunch. She did not elaborate in any detail as to the exact nature of her work.
[4] She recalled missing only one day of work to visit her physician during the period in question. When asked about work stoppage due to weather, she responded it simply meant the workers just started later in the day. She indicated she did not know most of the other workers' names, but simply called them brother or sister. She later provided two names, one of whom was her sister.
[5] Ms. Khunkhun stated that she received $10 an hour. Her Record of Employment (ROE) for 2000 indicated 961.5 hours of work at a rate of $10 per hour. She personally did not keep track of her hours and could not remember what she worked in her last week of work in 2000. She suggested that her husband keeps track of her hours, though he was not produced as a witness. She acknowledged she also received compensation on a piece rate, but offered no explanation why this was not reflected in her ROE.
[6] Two of the Respondent's witnesses, Mr. Malik from Canada Customs and Revenue Agency and Ms. Bansal from Human Resources Development Canada (HRDC) were members of what is called a "farm team", which conducts investigation into orchard operations for purposes of ensuring compliance with employment standards legislation among other responsibilities. Mr. Malik visited Mr. Nagra's orchard as part of the farm team on July 5, 2000 and Ms. Bansal on September 25, 2000. Both stated that the team interviewed all workers working at those times, and on neither occasion was Ms. Khunkhun present. Ms. Khunkhun's response was that she was in a different part of the orchard. Given the thoroughness of the farm team's investigation process, I find that Ms. Khunkhun was not in fact present at the orchard at the time of these visits.
[7] Mr. Nagra issued four cheques made out to Ms. Khunkhun totalling $7,426.36; two are dated October 24, 2000 for $2,141.70 and $1,901.87 and two were dated October 29 for $1,549 and $1,833.79. The first two were negotiated October 26 and the second two October 27, 2000. Canada Trust confirmed by letter dated November 14, 2001, that it deposited to Ms. Khunkhun's joint account on October 27, 2000, the amounts of $1,633.79 and $1,549. Bank records could not verify deposits of the other two cheques, though the reverse of the cheques suggested a deposit to a British Columbia Central Credit Union account. As to why she only received payment all at once at the end of October, Ms. Khunkhun responded that she only got paid when Mr. Nagra got paid. Ms. Bansal from HRDC confirmed that this was one of the practices the farm team was looking into in their investigations.
[8] The Appellant's other two witnesses, Mr. and Mrs. Bains, were both orchard workers at Mr. Nagra's farm. They were present at the time of the farm team visits in July and September. They both testified they worked with the Appellant for the last two and one-half years. Mr. Bains testified he was often simply called driver and not by his name, as that was his full occupation.
[9] A compliance auditor, Mr. Drebit, gave evidence that he had sent Mr. Nagra and Ms. Khunkhun a questionnaire. He followed up with Ms. Khunkhun as he did not feel he had enough information, as there was no confirmation that she actually got paid, and no evidence of time sheets. In conversation with Ms. Khunkhun, he was led to believe that she had lost copies of her own time records. He also stated that Ms. Khunkhun had confirmed she was present at the orchard at the time of the farm team visits.
[10] Finally, there was evidence in the form of pay stubs for the 2001 year for August to November indicating both hourly rate and piece rate remuneration for Ms. Khunkhun. There were corresponding cheques dated July 20, August 10, September 13, October 16 and November 7, 2001. All the cheques appear to have been negotiated on November 9. No explanation was provided for this delay.
[11] Mr. Nagra, while present in Court, did not give evidence.
Analysis
[12] Was Ms. Khunkhun employed as an orchard worker on Mr. Nagra's farm for 961.5 hours in 2000? The Respondent's position is no, she was not. According to the Respondent, the ROE for 2000 and four October cheques were nothing more than a sham to give the appearance that the Appellant worked. The ROE was inconsistent with the evidence Ms. Khunkhun was paid partially by piece work. Ms. Khunkhun was not being truthful in suggesting she was present at the farm team visits. The cheques were made out at the same time. There is no evidence that two of them were ever deposited. Ms. Khunkhun could not verify how many hours she worked, nor how many days she missed. These are all factors that work against her position of 961.5 hours of insurable employment.
[13] Are there factors that support her position? Her somewhat evasive answers about time actually worked gave little support to the figure of 961.5 hours; however, they still suggested to me that she has worked as an orchard worker. The pay stubs for 2001 provided some evidence of that. They also support the breakdown between piece work and hourly wages, albeit for the 2001 year and not the 2000 year. Another factor in support of Ms. Khunkhun's position is that Canada Trust's confirmation of the two deposits clearly represented two of the October 2000 cheques. I am satisfied that workers might not be paid until the end of the season. This does appear to be common practice. Finally, Mr. and Mrs. Bains supported Ms. Khunkhun's position as an orchard worker in 2000, but provided no evidence as to her hours.
[14] What should I take from Mr. Nagra's presence but failure to testify? Is there a negative inference contrary to Ms. Khunkhun's position to be drawn? This was not suggested by the Respondent. Was he there in some way to intimidate? Again, I cannot say, but I do find it curious. Presumably, he did not want to give evidence and certainly nobody wanted to force him to.
[15] My overall impression of Ms. Khunkhun and Mr. and Mrs. Bains was that they exhibited a nervous, cautious almost fearful demeanour. This leads me to the conclusion that I have not heard the whole story of Mr. Nagra and his workers. I believe there are likely some liberties being taken with the truth of Ms. Khunkhun's employment. There is simply more going on then I can fully ascertain. I do not, however, believe that the whole thing is a sham as the Respondent would have me believe. Yes, there were inconsistencies; yes, testimony was at time vague; and yes, I believe Ms. Khunkhun lied about being present at the farm team visits. However, testimony was also supportive of Ms. Khunkhun's working and receiving some payment for that work. The truth I suggest lies somewhere between the sham suggested by the Respondent and the 961.5 hours suggested by the Appellant.
[16] Having reached that conclusion, I am mindful of Judge Margeson's comments in Narang v. M.N.R.,[1] a case similar to this, where he stated:
Certainly if the Court should find that there was a "sham transaction" then there was no insurable employment, but the Respondent has no burden to establish that there was a "sham transaction".
The burden is on the Appellant and the Intervenors to establish on a balance of probabilities that there was work performed under a contract of service, that the workers worked the periods of time set out in the ROEs and that they were paid the amounts referred to therein.
I find that on the balance of probabilities, Ms. Khunkhun performed work under a contract of service for some period during 2000. However, I am not convinced that she worked the period of time set out in the ROE, nor that she was paid the full amount referred to therein. I do find that she received the payments of two of the October 2000 cheques totalling $3,383.79. Based on the Respondent's assumptions of Mr. Nagra's deductions on Ms. Khunkhun's T4 slip, this would represent a gross pay of approximately $4,380. At an hourly rate of $10 this suggests 438 hours worked. While I recognize that this is a rough and ready approach to the problem, I am prepared to allow the appeal to this extent for the following reasons.
[17] I am not satisfied that it is the worker who is wholly at fault here. As I have indicated, I suspect something is indeed rotten in the orchard business, though I am not sure exactly what, but to penalize the worker alone, the lowest spectrum of the fruit industry, does not seem just. My impression is that these seasonal workers, many who do not understand English, can be subjected to questionable labour tactics. Presumably, this is why these farm teams in British Columbia go to orchards, to in part educate the workers about their rights and responsibilities. The worker is wrong to fall into any trap for purported personal gain which involves deceiving the authorities. That is not tolerable. Neither is it acceptable that the most vulnerable bear an uneven burden and responsibility when deceit is uncovered. I believe Ms. Khunkhun worked for Mr. Nagra in 2000, but the hours reported by Mr. Nagra on the ROE are inaccurate. I am not prepared to reduce them to zero with the consequential adverse impact on Ms. Khunkhun. Neither am I prepared to allow Ms. Khunkhun's claim of having worked 961.5 hours based on the evidence she presented. I allow the appeal and refer the matter back to the Minister on the basis that Ms. Khunkhun worked 438 hours of insurable employment in 2000.
Signed at Ottawa, Canada, this 13th day of September, 2002.
|
"Campbell J. Miller" |
J.T.C.C
COURT FILE NO.: 2002-1986(EI)
STYLE OF CAUSE: Surinder Khunkhun v.
The Minster of National Revenue
PLACE OF HEARING: Kelowna, British Columbia
DATE OF HEARING: September 3, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge Campbell J. Miller
DATE OF JUDGMENT: September 13, 2002
APPEARANCES:
Agent for the Appellant: Bhupinder Dhanant
Counsel for the Respondent: Jasmine Sidhu
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm: N/A
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada