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Docket:2004-3042(EI) |
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BETWEEN: |
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DARSHAN KAUR VIRK, |
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Appellant, |
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And |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
____________________________________________________________________
Appeal heard on January 31, 2005 at Vancouver, British Columbia
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Before: The Honourable Justice L.M. Little |
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Appearances: |
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Agent for the Appellant: |
Gurcharan Dhillon |
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Counsel for the Respondent: |
Shawna Cruz |
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AMENDED JUDGMENT
The appeal is allowed, without costs, and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia, this 25th day of April 2005.
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Little J.
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Citation: 2005TCC163 |
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Date:20050425 |
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Docket:2004-3042(EI) |
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BETWEEN: |
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DARSHAN KAUR VIRK, |
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Appellant, |
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And |
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THE MINISTER OF NATIONAL REVENUE, |
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Respondent. |
AMENDED REASONS FOR JUDGMENT
Little, J.
A. FACTS:
[1] The Appellant was born in India. She moved to Canada in 1997.
[2] The Appellant maintains that she was employed by Keen Farm Labour Force Enterprises (the "Contractor") from September 17, 2001 to December 15, 2001 (the "Period").
[3] The Contractor provided farm labourers to assist in crop harvesting of berries, fruits and vegetables.
[4] The Contractor's records indicate that the Contractor employed the Appellant and six other farm labourers during part of the 2001 year (See Exhibits A-3 and R-6).
[5] The Appellant testified with the assistance of a translator that she worked for the Contractor at two or three locations as a farm labourer during the Period.
[6] After conducting an extensive investigation of the Contractor's financial records and after interviewing various people officials in the office of the Minister of National Revenue (the "Minister") issued a Ruling (the "Ruling") on February 12, 2003 in which it was stated that the Appellant was not employed in insurable employment by the Contractor during any portion of the Period from September 17, 2001 to December 15, 2001.
[7] The Appellant filed an appeal to the Ruling and the Minister determined that the Appellant was not employed in insurable employment by the Contractor during the Period.
B. ISSUE:
[8] The issue is whether the Appellant performed services for the Contractor during the Period.
C. ANALYSIS:
[9] Counsel for the Respondent filed a number of documents in an apparent attempt to support the position adopted by the Minister.
[10] Kiram Kumari Banwaite, an employer at HRDC, was called as a witness by Counsel for the Respondent. Ms. Banwaite testified that she had obtained weather information for the Fraser Valley area for a number of days during the Period and she had been advised that the wind blew from 29.92 miles per hour up to 48.33 miles per hour during certain days in the Period. Ms. Banwaite said that she carried out this analysis in an attempt to determine if it was possible to work as a farm labourer when it rained heavily or when the winds were very high. This information is contained in Exhibit R-4.
[11] I have compared the number of hours that were claimed by the Appellant for those days when the winds were high with the number of hours claimed by the other employees of the Contractor for the same "windy days" and I note that the Appellant and the other employees of the Contractor claimed virtually identical hours during the so called "windy days". I have concluded that no weight or relevance can be attached to the information contained in Exhibit R-4.
[12] Ms. Dhillon, Agent for the Appellant, filed Exhibit A-1 which consisted of photocopies of cheques payable to the Appellant. Exhibit A-1 contains the following information on cheques issued to the Appellant by the Contractor:
1. September 22, 2001 $337.05
2. October 6, 2001 $758.77
3. October 20, 2001 $746.68
4. November 3, 2001 $752.73
5. November 17, 2001 $811.35
6. December 1, 2001 $776.92
7. December 15, 2001 $752.73
$4,936.23
[13] Ms. Dhillon also introduced a copy of the Appellant's bank record (Exhibit A-2) which indicated that cheques totalling $1,095.82 were deposited in the bank account on November 3, 2001 and cheques totalling $3,840.41 were deposited in the bank account on December 19, 2001 for a total deposit of $4,936.23. In other words all of the cheques referred to in paragraph [12] were deposited in the bank account.
(Note: There was no evidence presented to the Court to indicate that the Appellant withdrew the deposits that were made by her to the bank account and gave the money that was withdrawn to other parties).
[14] Ms. Dhillon said that from her analysis the Appellant was the only employee of the Contractor during the Period who was not accepted as an employee by the Minister.
[15] Counsel for the Respondent said that there were many inconsistencies in the testimony before the Court and the testimony given by the Appellant to employees of HRDC and CRA. Counsel for the Respondent said that as a result of these inconsistencies I should conclude that on a balance of probabilities the Appellant did not work for the Contractor during the Period.
[16] I have carefully reviewed all of the evidence and the sworn testimony presented to the Court and I have concluded that the Appellant was employed by the Contractor in insurable earning from the period September 17 through to December 1, 2001. Because of some inconsistencies in the testimony I am not convinced on a balance of probabilities that the Appellant worked for the Contractor from December 2, 2001 to December 15, 2001.
[17] The appeal is allowed, without costs, and the Appellant will be recognized to have worked for the Contractor for the hours as outlined on Exhibit A-3 from September 17, 2001 through to December 1, 2001.
Signed at Vancouver, British Columbia, this 25th day of April 2005.
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Little J.
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CITATION: |
2005TCC163 |
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COURT FILE NO.: |
2004-3042(EI) |
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STYLE OF CAUSE: |
Darshan Kaur Virk and The Minister of National Revenue |
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PLACE OF HEARING: |
Vancouver, British Columbia |
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DATE OF HEARING: |
January 31, 2005 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice L.M. Little |
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DATE OF AMENDED JUDGMENT: |
April 25, 2005 |
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APPEARANCES: |
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Agent for the Appellant: |
Gurcharan Dhillon |
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Counsel for the Respondent: |
Shawna Cruz |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |