Malhi v. M.N.R.

Malhi v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2005-05-16
Neutral citation
2005 TCC 333
File numbers
2004-3697(EI)
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Employment Insurance Act
Decision Content
Docket: 2004-3697(EI)
BETWEEN:
KULWINDER KAUR MALHI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal heard on March 3 and April 18, 2005 at Vancouver, British Columbia
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Avtar Dhinsa
Counsel for the Respondent:
Pavanjit Mahil
____________________________________________________________________
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of May 2005.
D.W. Rowe
Rowe, D.J.
Citation: 2005TCC333
Date: 20050516
Docket: 2004-3697(EI)
BETWEEN:
KULWINDER KAUR MALHI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] The appellant (Malhi and/or worker) appeals from a decision issued by the Minister of National Revenue (the "Minister") on July 23, 2004 wherein the Minister decided her employment with Jagdish S. Malhi (JSM and/or payor) from June 18 to October 6, 2001 was not insurable pursuant to the relevant provisions of the Employment Insurance Act (the "Act") because she was not providing services pursuant to a contract of service.
[2] The Respondent’s Book of Documents – tabbed 1-39, inclusive – was filed as Exhibit R-1.
[3] Kulwinder Kaur Malhi testified in Punjabi and the questions and answers and other aspects of the proceedings were interpreted and/or translated from English to Punjabi and from Punjabi to English by Russell Gill, interpreter.
[4] The appellant testified she is not related to the payor. On June 18, 2001, she started working as a labourer on the orchard operated by JSM and his wife, Daljit Malhi. The appellant stated her rate of pay was $8.50 per hour for the first two weeks but was raised to $9.00 for each hour worked thereafter. Her first task was to thin the fruit and later she began picking cherries, apples and peaches. The fruit had to be packed into boxes. The cherry crop was harvested by July 15th and she also did some thinning in July. The orchard comprised about 10 acres and there were apple and peach trees thereon. Malhi stated that after the cherry crop had been picked, she picked peaches until the end of July and then picked the early‑maturing apples – Sunrise and Transparent - followed by those species that matured later and picked the late-maturing apples until her employment ended on October 6, 2001. The appellant stated her working hours were from 7:00 a.m. to 6:30 or 7:00 p.m., every day except Sunday, and that her hours were recorded on a time sheet maintained by the payor. Apart from her hourly rate, she received no further payments or benefits except for vacation pay - 7.6% - in accordance with provincial law. The appellant stated she worked alone on the JSM property except for those times when workers from Québec were picking cherries, although the payor would also work in the orchard from time to time. In 2001, her two children were aged 5 and 7 and were cared for by her husband and her mother-in-law during working hours. The appellant identified – at tab 2 – her application for unemployment benefits dated October 29, 2001. She also identified – at tab 3 - her Record of Employment (ROE) dated October 25, 2001 in which the payor reported she had worked 841 hours and had insurable earnings in the sum of $8,086.07. The appellant was referred – at tab 7 - to various sheets – each with the heading Daily Time Sheet – which she identified as those used to record her hours of work during the relevant period. She pointed to an area on the right side of the sheets where she had signed her name in order to verify the accuracy of the information entered in the spaces to the left. Counsel for the appellant referred Malhi to photocopies of various cheques at tab 9. The appellant stated she received those cheques from the payor and deposited them to her account in the Valley First Credit Union (Credit Union). The first cheque – in the sum of $709.30 – was dated July 6, 2001 and the final wage payment was by cheque – in the sum of $406.93 – dated October 25, 2001. The appellant stated she also received two payments in cash for her wages, one in the sum of $500 – perhaps in July or August – and another in the sum of $125. Counsel referred Malhi to two receipts – at tab 24 – and she agreed those represented the cash payments she had received from JSM. The appellant acknowledged her signature on the last page of the Questionnaire – tab 21 – and stated the contents of that document were true to the best of her knowledge. However, she agreed with counsel’s observation that there seemed to be an error on the fourth Daily Time Sheet - within tab 7 – in that it appears the hours – 45 - worked for the first week and the hours – 44 – worked for the second week of that pay period were incorrectly totalled as 99 rather than 89 and payment of her wages – at $9 per hour - was based on the higher number. The appellant acknowledged her signature on the Questionnaire – tab 30 – dated June 23, 2003 and while she could not recall specifically who helped her to complete this form, stated it would have been done either by her husband or by Susan Kassian, who performed bookkeeping services for her husband’s orchard business. Counsel for the appellant advised the appellant that the position of the respondent – as set forth in subparagraph 5(h) of the Reply to the Notice of Appeal (Reply) - was that when an Human Resources Development Canada (HRDC) investigator had visited the JSM orchard on 3 occasions, she was never present. The appellant stated the entry on the Daily Time Sheet was accurate and that she had worked 9 hours on July 10, 2001, picking cherries on the payor’s orchard. She recalled working at the orchard on September 11 – the day of the attack on the World Trade Centre in New York – and stated the entry on the time sheet was correct because she had worked only from 8:00 a.m. until 11:30 a.m. – a total of 3 hours – because she was so upset at hearing the news that she went home to her family. As for another day ‑ September 25, 2001 – when an HRDC investigator was at the JSM orchard, the appellant stated the entry on the Daily Time Sheet was correct and that she worked 10 hours that day and had been picking Spartan apples. The appellant estimated the cherry trees were up to 15 feet tall and the apple trees were between 10 to 12 feet high. The cherry trees were located in 3 separate places on the 10-acre parcel but the majority of the parcel was occupied by apple trees. The appellant was referred by her counsel to a document – at tab 11 – entitled Orchard Operating Agreement and dated January 10, 2001. She stated that although she cannot read English, she was aware the purpose of the document was to permit her to lease her one-half interest in their orchard property - in Oliver B.C. - to her husband in return for receiving the sum of $500 per year and upon further terms that her husband pay all costs associated with the operation of said orchard and that he would indemnify her from all costs, charges and expenses resulting from his failure to pay said operating costs. The appellant stated she entered into said lease because of the amount of paperwork associated with operating the orchard business and because she and her husband tended to argue when working together and/or operating the business jointly. In response to questions from the Bench, the appellant explained only a small portion of the JSM orchard was devoted to peaches and they were picked at three different times during the season but the picking was done along with other work being performed so that she might pick apples and peaches the same day. In addition to picking, she graded apples and peaches for quality before packing them into boxes. The payor used a tractor to haul the boxes to large bins where the fruit would be stored until delivered to the customer.
[5] In cross-examination by counsel for the respondent, the appellant ‑ Kulwinder Kaur Malhi – stated the 10.9-acre orchard – in Oliver – owned by herself and her husband was acquired in 1996. Their family home is located on that property. In 2001, that orchard grew 2 or 3 acres of cherries, 6 acres of apples and 1.5 acres of peaches. There were two acres of Spartan apples, one acre of McIntosh and smaller parcels devoted to Golden Delicious and Red Fuji. In 2001, Param Malhi operated the Oliver orchard by himself and the appellant stated one person could operate a 10-acre orchard provided extra help was available during certain peak picking periods. Except for 2004, the appellant had never worked on the home orchard property but was employed by her husband in 2003 on an orchard property leased by him from a third party. The appellant maintained an account in the Credit Union and stated she had no knowledge of the transactions occurring in her husband’s bank account at the Royal Bank of Canada (Royal) in Oliver. The appellant agreed she had worked for JSM in 2000 and that HRDC had obtained a ruling with respect to that employment in which it had been determined she had not been employed under a contract of service. Malhi acknowledged she was required to repay unemployment insurance (UI) benefits already paid and that she had not appealed that ruling. The appellant agreed this inability to receive UI benefits motivated her and her husband to enter into the lease at tab 11. She denied knowing she could not receive said benefits if she worked on their jointly‑owned property and stated her decision to lease her interest to her husband was based on the fact new planting had to be done. She stated she was not aware of the technical requirements for receiving UI benefits and believed if the work was done she should qualify for UI benefits whether or not she had an interest in the Oliver property. Because Oliver is a small town, she discovered JSM owned an orchard and after leaving the Sikh temple – in 2000 - she approached JSM and inquired about availability of work. Malhi denied that her husband was involved in arranging for her to work for JSM even though she agreed he operated their orchard property and paid all household bills and handled all the banking and other financial matters for both the household and the orchard. Malhi stated she did not know Daljit Malhi – wife of JSM – even though she lived in the house on the JSM orchard and confirmed that Daljit Malhi had never worked with her on that property. The appellant stated she was not aware that her husband had employed Parmjit Sidhu to work on the Oliver orchard in 2001 even though her time sheet indicates she returned home – sometimes - in early afternoon. The JSM property was a 10-minute drive from the appellant’s home. The appellant stated she could not recall any other workers picking apples, neither Québecois nor Indo-Canadians although 4 or 5 young men – from Québec – picked cherries in June and/or July. The appellant described a typical working day in which she arrived between 7:00 a.m. and 8:00 a.m. and sometimes drove her car into the field to a spot near her worksite. JSM would come to the area and give her instructions for the day. Counsel referred Malhi to a diagram – within tab 34 – that had been included in a letter sent by Malhi to C. Amber – Appeals Division – Revenue Canada, Vancouver. The appellant agreed there is a driveway next to JSM’s house but added there are two other ways to enter the orchard once a person has exited Highway 97. The appellant stated she recorded her hours each day and reported for work at a time set by JSM the previous evening. Her hours were recorded on sheets that were available in an area near a shed at the end of the driveway. The appellant stated that sometimes she recorded her start time in the morning but on other occasions wrote it down at the end of the day and sometimes JSM brought the time sheet to her work location and wrote in the hours worked for the day prior to her signing the sheet. Counsel referred to a summary of earnings – tab 8 – the appellant had provided to HRDC in which the entry for the period July 30th to August 12th, 2001, stated her net pay was $765.94. The appellant agreed she could not produce a cheque in that amount but stated she had received two sums of cash totalling $625, as evidenced by the two receipts dated August 20 and August 25, respectively at tab 24. The appellant stated she was working on the JSM orchard on July 10, 2001 and was working there on September 11th until 11:30 a.m. when she went home after being informed by JSM about the terrorist attack in New York. Malhi stated she was picking apples on September 25th and worked until 6:30 p.m. that day. Counsel referred the appellant to the Daily Time Sheet for the period commencing July 3 and to the absence of start times on that entire sheet covering the period up to July 16, 2001. The appellant replied that she remembered those start times because she always started at 7:00 a.m. and worked until 4:00 or 4:30 p.m. throughout that period. The appellant acknowledged that when interviewed by Jim Rusk, an employee of Canada Customs and Revenue Agency (CCRA) (as it then was) she denied receiving any cash payments from JSM but later checked with Susan Kassian – bookkeeper – and discovered JSM had made two cash payments of wages to her. The appellant denied counsel’s suggestion that she had never worked for JSM and that the entire arrangement was a sham to permit her to qualify for UI benefits.
[6] Jagdish Singh Malhi (JSM) was called to the stand by counsel for the respondent. He testified in Punjabi and the questions and answers and other aspects of the proceedings were interpreted and/or translated from English to Punjabi and from Punjabi to English by Russell Gill, interpreter. JSM stated he and his wife ‑ Daljit Malhi – owned and operated a 10.2‑acre orchard in Oliver between 1995 and 2002. He recalled that – in 2001 – the orchard grew cherries, apples, prunes, apricots and peaches. The cherry and prune crops each occupied one acre and a similar area was allotted to growing each of the apple varieties, namely, Transparent, McIntosh and Golden Delicious. The Spartan apple crop was located on 1.75 acres and peaches were grown on a small parcel comprising .25 of an acre. JSM was referred to a document – at tab 12 – dated December 1, 1997 and described as Orchard Operating Agreement. He identified his signature and that of his wife ‑ Daljit Malhi – on the last page and explained that he and his wife had entered into the agreement because she was not capable of managing the orchard and could not drive a tractor or operate the spraying equipment. The term of the agreement extended until December 31, 2002 and did not require JSM to make any payment to Daljit Malhi for any profits flowing from her 50% interest in the orchard. Instead, JSM was responsible for paying all costs associated with the operation of the orchard, including mortgage payments on the family home situate thereon. JSM stated that if his wife wanted money for some purpose she could ask him at any time or just take it from their resources. He had not leased land in the Oliver area from anyone else and did not lease out any portion of his own orchard. JSM was referred to a Statement of Farming Activities for Individuals (Statement) ‑ tab 26 - which he recognized as part of his income tax return for the 2001 taxation year. He agreed that no income from the sale of peaches was reported on said Statement and that all income from sale of produce was attributable to apples and by-products and cherries. JSM was referred to a table reproduced within subparagraph 5(d) of the Reply pertaining to the years from 1999 to 2002, inclusive. JSM stated the figures accurately represented the state of affairs of the orchard operation and that in 1999 he had gross income of $34,697 but sustained a net loss in the sum of $19,905. In that year, he employed 5 workers and paid out $23,202 in wages. In 2000, the gross income rose to $61,347 and net profit was $8,642, probably due in part to the reduction in wages to $8,050. He stated he thought one of his employees that year was Kulwinder Kaur Malhi, the appellant in the within appeal. In 2001, the orchard grossed $54,008 and showed a net profit of $11,546. Wages that year were $8,086.07. In 2002, gross income rose to $88,832 and produced net income of $14,997 after paying operating costs including wages in the sum of $2,551. JSM could not remember whether he had also employed a person identified in documents as B. Grewal during the 2002 season and stated he had been afflicted with a fever in 1989 while visiting India and that it had affected his ability to remember. JSM stated he met the appellant at the Sikh temple in Oliver and that she had approached him outside and inquired if there was work available and he had agreed to hire her to perform services on his orchard. The conversation was held between the two of them and he did not see the appellant’s husband in the immediate vicinity. JSM acknowledged that he knew Param Malhi was the appellant’s husband since he had met him at the local packing house and on occasion they had loaned each other sprays and/or farm equipment because they each operated an orchard about 3 kilometers apart. Counsel asked JSM whether he knew Jatinderpal Singh Sidhu, the employer of Daljit Malhi in 2001. JSM replied that he "had nothing to do with that. That’s her dealings. I had my own problems and my own tensions". In response to a question from the Bench as to why his wife would not work on her own land, thereby saving them up to $8,000 a season is wages, JSM stated that when he attempted to give his wife instructions it would create tension and they would begin arguing and that caused an ongoing problem. He related one occasion during which he was telling her to do something and she became so confused she fell off a ladder. In relation to the large amount of gross income in 2002, JSM explained that there had been a hailstorm which damaged the apples and a large amount of reported revenue that year had been the result of proceeds received pursuant to his hail insurance policy. As a result, he was paid for the value of the damaged fruit but did not have to pay labour costs for any picking. JSM stated the appellant arrived to work in her own car or – sometimes – was dropped off by someone. He described her duties as picking cherries, thinning of apples, picking and grading fruit and other casual work associated with the orchard. Each day he gave her instructions as to the work to be carried out the following day but she chose her own start and end times. JSM acknowledged his signature on the appellant’s ROE – tab 3 – that had been prepared by his accountant, Susan Kassian. He stated the information therein was correct and that the appellant had worked 841 hours between June 18 and October 6, 2001 for which she had been paid the sum of $8,086.07. His policy was to maintain a time sheet for all employees and he instructed workers to write down their hours on the sheets which were kept in the garage where tractors were stored. When the time sheets were full, he took them to his accountant. In the event he was not present at quitting time, he trusted his employees to enter the correct departure time on the sheet. The accountant used the time sheets to prepare cheques which he would sign but – sometimes – he was short of funds and could not pay wages every two weeks. On the property, apart from the residence, there was a cabin that was rented sometimes and another small building - basically attached to the house - and a building where tractors were parked. JSM confirmed the diagram – at tab 34 – was otherwise accurate. Counsel pointed out that the payroll summary – tab 8 – indicated the appellant had net earnings of $765.94 during the period from July 30 to August 12 but there was no cheque issued to her for that amount. JSM replied that there had been a couple of cash payments to the appellant and referred to some receipts. When shown those receipts – tab 24 – and advised the two added up to only $625, JSM stated he permitted his accountant to handle the figures and merely signed cheques and documents when requested. Counsel advised JSM that there had been a visit to his orchard by Brian Lundgren - HRDC investigator - on July 10, 2001, a day when 4 or 5 workers from Québec were picking cherries. JSM stated he did not have a specific recollection of that event but recalled Lundgren’s visit on September 11th, when Lundgren was accompanied by Bill Harrington. JSM had been picking apples at the rear of the property and was being helped by his wife, his father and his father-in-law. JSM stated the appellant was working that day on the other side of the orchard doing some thinning of apples. He recalled she worked only for a short period of time even though he had to fill an urgent order for apples and had requested that she abandon her other work and come over and help him fill that order. When the appellant did not comply, he asked his relatives to help him pick the apples. JSM stated he received a phone call at about 9:00 a.m. requesting that a certain amount of apples be ready for pick-up within two hours. As a result, he telephoned the appellant and told her he needed her to help to pick those apples and was advised that she could not attend right away but would try and come later and that if she did not arrive, he should look after the picking himself. JSM was referred to the entry on the Daily Time Sheet – tab 7 – for September 11, 2001 indicating the appellant worked 3.5 hours between 8:00 a.m. and 11:30 a.m. to which he responded by stating that if she was working during that time she definitely did not help him pick apples. He was not able to explain the confusion surrounding the sequence of events except he recalled the appellant’s husband had answered the phone when he called to tell her about the customer’s order for the apples. He confirmed his wife – Daljit Malhi – was working with him on September 11 even though her ROE includes hours that she was supposedly working for Jatinderpal Sidhu. JSM recalled a visit to his residence – on September 25, 2001 – by Brian Lundgren and Norinder Bansal, a Punjabi-speaking CCRA employee. Daljit Malhi was also present and JSM identified his signature on the last page of the interview notes at tab 6. JSM had stated during this interview that he did not know the appellant was the wife of Param Malhi, a man whom he knew to be another orchard operator and with whom he had traded equipment and materials back and forth, as required. He explained that even though the appellant had worked for him during the entire summer seasons of 2000 and 2001, he did not know she was Param’s wife and even when he called the appellant’s house on September 11, 2001, the person responding merely said, "I am her husband, speak your order and I will pass on the message." JSM was referred to a Questionnaire ‑ tab 22 – that was returned to the Appeals Officer. He recalled it had been completed by Susan Kassian but could not recall meeting with John Mahler and Sekunder Malik on December 16, 2002 at the CCRA office in Penticton. He stated that when Questionnaires were completed by Kassian, he signed them because he believed the information contained therein was correct. He denied that he ever paid employees for hours not worked just to "keep them happy."
[7] In cross-examination by counsel for the appellant, the witness – JSM – agreed that whenever Brian Lundgren had visited the orchard, he had not been looking for the appellant nor was he making any inquiries whatsoever in respect of her employment with JSM. He confirmed the appellant’s estimate of the height of various trees as ranging from 10 to 15 feet. He added it is not possible to view the entire orchard from any particular place and it is sometimes necessary to walk around the property in order to locate someone who is working at a particular task.
[8] Brian Lundgren testified that until his retirement in November, 2004, he had been employed as an investigator for HRDC for 22 years after having served with the RCMP for 13 years as both a uniformed and plainclothes officer. His most recent posting with HRDC was as an Investigation Control Officer (ICO) at the Penticton office where he worked for 4 and one-half years. As an ICO, he responded to files referred to him including those of the appellant and two other related files which became the subject of an investigation. As part of his work in this regard, Lundgren prepared a chart – tab 1 – in which he depicted the relationship between six persons – 3 married couples – and included information as to the dates used in the relevant ROE issued by the purported employer to the alleged employee. The first box in the chart indicated the appellant is the wife of Param Malhi and that Param issued an ROE to Parmjit Sidhu, wife of Jatinder (Jatinderpal) Sidhu. Jatinder Sidhu issued an ROE to Daljit Malhi, wife of JSM who issued an ROE to the appellant. The ROE for Daljit Malhi – within tab 3 – indicates she worked for Jatinder Sidhu from June 18 to October 6, 2001, the exact time frame used in the ROE issued by Daljit Malhi’s husband – JSM – the purported employer of the appellant. However, within that period, the insurable hours worked – 820 - by Daljit Malhi was less than those – 841- shown on the appellant’s ROE and the insurable earnings - $7,547.84 – of Daljit Malhi were less than those of the appellant which were stated to be in the sum of $8,086.07. Again - within tab 3 - Lundgren referred to an ROE issued by Param Malhi – husband of the appellant – to Parmjit K. Sidhu, wife of Jatinder Sidhu. According to that document, Parmjit K. Sidhu started working on June 18 and worked until October 13, 2001 and during said period worked 867 hours for which she was paid the sum of $8,345.07. Lundgren stated he requested payroll records from these three employers and spoke to the workers in the course of his investigation. He stated he received certain records from Susan Kassian that had been requested from JSM, including cancelled cheques, time sheets and a copy of a lease between the appellant and her husband. Lundgren was permitted to refer to his notes – tab 4 – and confirmed he had visited the JSM orchard at 8:30 a.m. on July 10, 2001. That day, he knocked on the door of the residence and it was opened by a female who identified herself as Daljit Malhi and it appeared as though she was caring for some small children in the house. JSM came out of the orchard to the house and identified himself. Lundgren served him with a requirement to provide certain listed documents as authorized by subsection 126(14) of the Act. Lundgren stated he observed 5 or 6 people picking cherries at the front right-hand side of the orchard near the highway. He looked around the property and did not see any other worker. Based on his experience, it was reasonable to assume that the only type of work to be performed at that time of year would have been picking cherries since it was too early for any other crops to be harvested and most thinning is done during May and June. On September 11, he and Bill Harrington visited the JSM property in order to interview JSM concerning a worker named Sandhu. However, because JSM’s ability to speak English was not sufficient, Lundgren and Harrington advised they would return at a later date with a Punjabi-speaking officer. Lundgren referred to his notes and refreshed his recollection that they had driven up to a shed from which point they observed 4 people picking apples. One was JSM, another was his wife – Daljit Malhi – and they were being helped by two Indo-Canadian males. He and Harrington walked to the picking area and did not observe the appellant nor any other persons other than those already identified. In Lundgren’s opinion, he would have been able to see the appellant had she been present because he was at the back of the orchard and could see the remainder of the property. There were no other vehicles in the driveway. In Lundgren’s experience, although there are different types of apples that mature at different times, he would expect September 25 to be near the end of the picking season. Lundgren stated that in the four and one-half years that he travelled around the south Okanagan area he visited several farms on a regular basis and in his opinion - based on his experience - most mixed orchards of 10 acres are operated by one individual or a couple and outside help will be required only during certain peak picking periods. In his experience, the pruning, spraying, fertilizing, thinning is done almost all of the time by the owner/operator. When cherries are ready for picking, it is common to hire young people – usually from Québec – to harvest the crop and groups of young workers travel from farm to farm working between one and three days at each place. In the course of his work, Lundgren stated he obtained a report – tab 16 – concerning the tree fruit industry in the Okanagan because he wanted to know the amount of time required to operate a mixed orchard and searched for information about various types of crops and varieties of apples, 9 in total - because he was interested in the different maturing dates. At page 7 of said report, there is a comment that "One person working full‑time off the orchard with occasional help could operate about up to a 12-acre mixed orchard". The report went on to note that "[P]ast 15 acres, it would be very difficult for an orchardist to work full-time off the orchard unless there was another family member who could work full-time on the orchard." Lundgren stated that although he requested the report be prepared, he had no involvement whatsoever in the content thereof. In the course of his work at the HRDC Penticton office, Lundgren estimated he conducted about 200 investigations per year. After completing his investigation of the appellant’s file, he formed the opinion that she had been part of an artificial arrangement to create the illusion of employment and as a result referred her file to CCRA for a ruling on insurability. Lundgren stated – in response to a question from the Bench – that in his opinion 5 or 6 pickers working with JSM could pick one acre of cherries per day and agreed with the comment in the industry report that a top picker could pick 8 or 10 bins per day and that 40 to 42 bins per acre would be required over the course of 5 days for one person to pick an acre of apples. Lundgren stated that 841 hours – the amount shown on the appellant’s ROE – seemed to be excessive because his experience led him to conclude that the majority of orchardists did most of the work themselves other than picking cherries and/or other crops during peak periods. Apples were an easier crop to pick and different varieties matured at different times, unlike cherries which were ripe more or less at the same time. Lundgren agreed that between 300 and 400 hours of hired labour per season would be reasonable for a 10-acre mixed orchard.
[9] In cross-examination by counsel for the appellant, the witness ‑ Brian Lundgren – acknowledged there is one type of apple that is harvested in October. He recalled the JSM orchard was rectangular - more deep than wide - and that the trees were older which meant they were taller than the newer varieties. He confirmed that during his visits he had not been searching for the appellant but was merely noting what he observed and/or did not see during the times spent there. Counsel referred Lundgren to his notes – tab 6 – of the interview with JSM conducted by himself and Norinder Bansal on September 25, 2001 and to the recorded responses of JSM where he stated he had one employee ‑ Kulwinder Malhi – and that she also did some "thinning and farm work." In response to the question posed by Lundgren, "Where is she right now?", the recorded response of JSM was "She’s out working". Lundgren stated he did not follow up with any more questions in relation to the appellant because she was not the subject of any investigation at that time and was not particularly concerned with her whereabouts.
[10] John Herman Mahler testified he is a Rulings Officer employed by CCRA and has been so employed since August, 1997. He was assigned to issue the ruling in respect of the appellant’s alleged employment with the payor. He reviewed a case report and the worker’s application for UI benefits as well as her ROE and certain other documents including the lease agreement between the appellant and her husband. He spoke with Brian Lundgren and examined time sheets. He sent a Questionnaire – tab 21 - to the appellant and it was returned to him by Susan Kassian who completed it on her behalf. On December 16, 2001, with Sekunder Malik - a Punjabi-speaking employee of CCRA - he interviewed the appellant in the presence of her husband, Param. Notes of the interview are included in the typed sheets at tab 20. Mahler stated he confronted the appellant with the information that Lundgren and Harrington had been at the JSM property on September 11 but had not seen her there. The appellant responded that she did not recall any visitors but remembered nothing of that day. With respect to the missing amount of $725.94 for the pay period - July 30 to August 12 - Mahler noted that the appellant initially stated she had not received any cash but thereafter added she did not recall receiving $625 in cash. The Questionnaire sent by Mahler to JSM was never returned but he did interview JSM on December 16, 2001. According to Mahler’s typed notes – within tab 20 – JSM stated he paid the appellant $10 per hour and that she had signed receipts for cash he had paid her, although he did not provide any copies at that time for examination. When asked about the appellant’s work on September 11, Mahler noted JSM stated that the appellant had worked "for a while" but went home sick and added he may have given her an extra hour "bonus time", something he did for workers from time to time in order to "keep them happy." Mahler stated that when Susan Kassian was informed there was no cheque to match the amount of $765.94 within a particular pay period, her response was that she would attempt to find the cheque and there was no mention – by her – of any payment of wages in cash. On March 28, 2003, Mahler and Tar Deol – a Punjabi-speaking colleague – visited the home of JSM and Daljit Malhi. An interview was conducted with JSM and he was asked about his answer to question 12 on the Questionnaire – tab 23 – received by CCRA on January 6, 2003 – wherein the written response regarding method of payment to the appellant was "cheque." Mahler stated when asked to confirm that answer, JSM stated the appellant had been paid between $500 and $700 in cash and produced a receipt book which was unused except for two non-numbered receipts – tab 24 - dated August 20, 2001 and August 25, 2001, in the sums of $500 and $125, respectively. In Mahler’s opinion from having visited the JSM orchard, the configuration was U-shaped and as one drove down a lengthy driveway, parts of the orchard were clearly visible in a manner that would allow one to see if someone was working there.
[11] In cross-examination by counsel for the appellant, the witness ‑ John Mahler – agreed he had not looked behind the shed nor did he recall a cabin located on the orchard. Mahler stated that the process he followed during his interviews with the appellant was to ask the question and wait for it to be interpreted in Punjabi and for the interpreter to receive the answer in Punjabi and interpret it in English so he could write it down. Later, he typed his handwritten notes.
[12] Carin Amber testified she has been employed by CCRA for 20 years and has been an Appeals Officer for 14 years. She was assigned the appellant’s file and prepared the CPT 110 – Report On An Appeal - at tab 29. In arriving at her decision, she reviewed documents forwarded to her by HRDC together with the application for appeal and correspondence as well as information accessed from the CCRA computer system. She reviewed the Questionnaires - tabs 30 and 31 – and examined summaries of income tax information filed by JSM with respect to his orchard income. She accessed information and obtained a printout – tab 36 – of amounts paid by JSM to employees for the years 1999 to 2002, inclusive. In 2001, the appellant was the only employee that JSM provided with a T4. Amber reviewed the printout – tab 37 – of the information provided by JSM in his tax returns for those years. Amber noted that as farm income rose, wages were reduced. She also considered that the appellant was unable to prove she had been paid for the amount of insurable earnings stated in her ROE. She also considered it unusual that Lundgren had not seen the appellant working on the JSM farm even though he visited the property on three separate occasions. She noted that the circumstances relevant to the appellant included the fact there were three spouses, all of whom had leased their interest in their own orchards to their respective husbands, who purported to work for another of the husbands in a circular arrangement with the result they could qualify for UI benefits whereas if they had worked – instead - on their own land, they would not have been eligible because they were owners. Having regard to all the facts, Amber decided the appellant had not performed work for JSM – as alleged – and that if any work had been done, it was performed within the context of an exchange of work or services which does not constitute insurable employment within the meaning of the Act.
[13] In cross-examination by counsel for the appellant, the witness ‑ Carin Amber – stated she had not been aware that when Brian Lundgren had attended at the JSM orchard on three separate occasions, he had not been looking for the appellant but had been investigating an unrelated matter. Amber stated that even if she had been able to conclude that the appellant had worked on the JSM farm, she would have considered the whole arrangement involving the three husbands and three spouses as nothing more than an exchange of work or services. She also took into account that during an interview, the payor stated all work had been finished by September 25, yet the appellant’s ROE stated her last day of work was October 6, 2001. Amber agreed orchard work is seasonal and that start and end times could vary within the Osoyoos/Oliver area. Amber also noted that on two occasions when Lundgren visited the JSM orchard, Daljit Malhi was present even though she was supposed to have been working for Jatinder Sidhu.
[14] In re-examination, Carin Amber referred to the printout – tab 36 – indicating JSM had issued a T4 to his wife – Daljit Malhi – in 1999.
[15] Counsel for the appellant submitted the evidence established that the work was performed by the appellant for the payor. In counsel’s view of the position taken by the respondent, there was too much reliance placed on the allegation – by Lundgren – that he did not see the appellant on the JSM property during any of the three visits. However, the appellant – during that time – was never the subject of any inquiry and Lundgren was asked one year later if he recalled having seen the appellant on that site. Counsel referred to the proof of payment by cheques issued to the appellant and submitted that is not consistent with some sort of barter system. Further, people are entitled to arrange their affairs in order t