Kang v. M.N.R.

Kang v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2005-01-12
Neutral citation
2005 TCC 24
File numbers
2000-2354(EI)
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Employment Insurance Act
Decision Content
Docket: 2000-2354(EI)
BETWEEN:
VARINDER KAUR KANG,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal heard during the course of 71 days between November 3, 2003 and
June 8, 2004 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Darshen Narang
Counsel for the Respondent:
Johanna Russell
Selena Sit
____________________________________________________________________
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 12th day of January 2005.
"D.W. Rowe"
Rowe, D.J.
Citation: 2005TCC24
Date: 20050112
DOCKETS: 2000-2354(EI); 2000-2357(EI); 2000-2356(EI); 2000-2359(EI); 2000‑2319(EI); 2000-2366(EI); 2000-2370(EI); 2000-2322(EI); 2000‑2321(EI); 2000-2367(EI); 2000-2368(EI); 2000-2362(EI); 2000-2363(EI); 2000-2360(EI); 2000-2365(EI); 2000-2329(EI); 2000-2335(EI); 2000‑2323(EI); 2000-2342(EI); 2000-2334(EI);
and
DOCKETS: 2000-2324(EI); 2000-2325(EI); 2000-2328(EI); 2000-2144(EI); 2000-2653(EI); 2000-2332(EI).
BETWEEN:
VARINDER KANG, VARINDER JASSAL, HARBANS KANG, JASWINDER BASSI , TARO BASSI, BAKHSHISH THANDI, GIAN S. THANDI, JASWINDER CHEEMA, GURMAIL CHEEMA, AJMER K. GILL, RAVJIT GILL, INDERJIT S. ATWAL, SHARINDER BAGRI, HARBANS K. PUREWAL, PARMJIT REHAL, GURCHARAN JOHAL, PRABHJOT MINHAS, GURBACHAN GILL, SUKHWINDER K. TOOT, DIDAR MEHAT,
Appellants,
and
BHAGWANT GREWAL, AMARJIT GREWAL, SUKHWINDER HUNDAL, SHARDA JOSHI, GURMAIL SINGH GILL, JATINDER LIDHRAN,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] Each appellant appealed from a decision issued by the Minister of National Revenue (the “Minister”) on February 23, 2000. Each decision was specific to the individual named therein and dealt with a particular period within 1996, with the exception of one appeal which involved a few days of alleged employment in January, 1997.
[2] Johanna Russell and Selena Sit appeared as counsel for the respondent. Darshen Narang, assisted by Rajwinder Narang, acted as agent for the 20 appellants listed in the first grouping in the above style of cause. The appellants listed in the second grouping were either represented by another agent or appeared in person.
[3] On February 21, 2003, the Honourable Judge Little of this Court issued an Order – in response to a Notice of Motion by counsel for the Respondent – that the appeals named in said Notice of Motion be heard together on common evidence pursuant to section 10 of the Tax Court of Canada Rules of Procedure regarding appeals files under the Employment Insurance Act (the “Act”). The appeals were set down for hearing at Vancouver, British Columbia, commencing November 3, 2003. The style of cause in the Order of Judge Little commenced with the appellant Taro Bassi, followed by Gurmail Cheema and Jaswinder Cheema and other appellants who were represented by Darshen Narang, agent. The appellants who were represented by other agents, or appeared in person, were also subject to the Order of Judge Little concerning the common evidence procedure and agreed that the appeals of the workers represented by Darshen Narang would proceed first.
[4] I decided to discontinue the style of cause utilized earlier in these proceedings and – instead – have listed appellants in the order of their appearance before me. During the period between the Order of Judge Little and the commencement of the hearing, four appellants died, all of whom had been represented by Darshen Narang. Narang advised the Court he had received instructions from the lawful representatives of the estate of each deceased appellant to discontinue the particular appeal. During the course of the hearing – occupying a total of 71 days - the appeals of some appellants were dismissed for want of prosecution and/or withdrawn with the result the parties named in the within style of cause are those who had live issues before the Court at the close of each party’s case.
[5] Most of the appellants testified in the Punjabi language and the questions and answers and other aspects of the proceedings were interpreted by Russell Gill, a certified court interpreter fluent in English and Punjabi. In addition to interpreting oral testimony, Gill – on many occasions – had to translate – contemporaneously - written documents and transform the printed word into speech. Some of the documents - contained in the numerous binders filed as exhibits – contain hundreds of pages and there were numerous interviews attended by the appellants during which answers were provided to specific questions. The interpretation of the spoken word and translation of the written material by Gill – sometimes under difficult circumstances in the course of a lengthy proceeding - was performed in an efficient manner and to such a high standard that I am satisfied there was a full opportunity afforded to all Punjabi-speaking appellants to present fully the relevant facts pertaining to their case and to comprehend the nature and extent of the proceedings. In addition, Darshen Narang, agent for the first group of appellants, is fluent in spoken Punjabi and English. Other agents or those appellants who chose to present their own appeals were also capable of proceeding in English. On occasion, Punjabi-speaking appellants testified in English but Russell Gill was present in Court in order to assist from time to time in interpreting certain words or phrases.
[6] Throughout the hundreds of documents forming part of the material entered as exhibits in these proceedings, including reports of interviews, transcripts, Records of Employment (ROEs), T4 slips, pay statements, etc., the names of some individuals have been spelled in different ways. Punjabi is a syllable-based language and the conversion to the English alphabet will sometimes produce a somewhat different spelling of the same name, particularly if the person recording the name has done so phonetically.
[7] The employer/payer in all cases was SR Contractors Ltd. In the course of testimony and in some documentation, this company is referred to as S & R, SR Inc. and/or SR Contractors. However, during the testimony of most of the workers, the employer was described as Bant or Shindo and, less often, as Rana. Bant is Bant Suran, Surinder (Shindo) Suran is his wife. Manjit Rana is the sister of Surinder Suran and the brother-in-law of Bant Suran. In these reasons, all parties agree there is only one employer regardless of the names used by various appellants in their testimony. As a result, when I refer to SRC, it is intended to identify the corporate employer in the within appeals unless the context requires otherwise. In many instances, appellants were not able to identify the work places – usually farms – where they alleged services were performed for the benefit of SRC, a labour contractor. As a result, there are references to work locations such as Khakh Farms, Mike’s Farm, the Chinese Farm, Purewal Farms, and so on. The ROE, a document issued by an employer following layoff, is required prior to applying for unemployment benefits pursuant to the Act. Many witnesses referred to a “weeks paper” and whenever that term was used in testimony, it was accepted that it pertained to an ROE.
[8] The names of the relevant ministries, agencies and departments changed over the course of time. For example, certain functions performed at Canada Employment Centre - within Employment and Immigration Canada – were undertaken by Human Resources Development Canada (HRDC) and the role played by Revenue Canada in issuing determinations under the Act was subsequently performed by Canada Customs and Revenue Agency (CCRA). On June 30, 1996, the Employment Insurance Act replaced the Unemployment Insurance Act with certain provisions coming into force January 1, 1997, January 5, 1997 and January 1, 1998. Some transitional provisions are relevant to one or two of the within appeals and will be referred to later. For the purposes of this judgment, the term “Unemployment Insurance”, commonly referred to as “UI”, is interchangeable with “Employment Insurance” or “EI” in relation to benefits. The most significant features of the legislative reform accomplished by the coming into force of the new Act include the following:
- entitlement to benefits based on hours worked instead of weeks worked, with no minimum hourly requirement per week;
- a benefit rate that takes into account the number of weeks of benefits received in the past by a claimant;
- a reduction in the maximum insurable earnings;
- a reduction in the total period during which benefits could be received;
- higher penalties for false statements.
[9] The effect of the new regime – based on hours – placed a worker in the position of having to accumulate sufficient time within a relatively short period in order to qualify for benefits following the end of the farming season. In the within appeals, although the benefits were still calculated in terms of weeks for those workers who had begun their employment prior to July 1, 1996 – pursuant to the transitional provisions – a great deal of time and energy was expended in relation to attempts by several appellants to demonstrate not only that they had worked the hours – as alleged – but also that they had been remunerated for those hours. The latter is extremely important because the calculation of “insurable earnings” under the Regulations pursuant to the Act – for the most part – is based on the amount actually paid by the employer to the worker for the performance of services.
[10] The within appeals fell within three categories. First, there were those cases where the Minister decided a particular worker had worked a certain number of insurable weeks within a specified period and had been compensated for said work, which resulted in a finding that a specific amount constituted insurable earnings. The position of the appellants in this group was – basically – that they had either worked more hours than recognized by the Minister or had been paid additional amounts in wages in the form of cash or otherwise that the Minister had refused to take into account when establishing the amount of insurable earnings. Second, there were several cases where the Minister had accepted that the named worker had provided services to SRC - within the particular period – but had not been satisfied the worker had been paid by that employer. As a result, the Minister’s decision concluded that the said worker’s insurable earnings were nil. Third, there were some appeals in which the issue concerned whether an appellant had performed services within a certain period, as alleged, or at all. In those instances, the Minister issued a decision stating there had been no insurable employment - by the named party - with SRC. Overall, the Minister’s position was that the circumstances under which SRC carried on business during 1996 – as revealed by the documentation, including interviews with appellants and others – clearly disclosed that SRC was perpetrating a sham and had fabricated records to give the appearance that certain persons had worked for the company and had been paid a particular amount for their efforts when the worker had either never worked the period - as alleged - or at all, and had not been paid the amount – as alleged – or at all.
[11] All decisions issued by the Minister were pursuant to section 93 of the Act, based on paragraph 5(1)(a) of said Act. The equivalent provision in the Unemployment Insurance Act - paragraph 3(1)(a) - in effect until July 1, 1996, used the same definition of employment. Paragraph 5(1)(a) of the Act, reads:
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
[12] Pursuant to subsection 90(1) of the Act, Canada Employment Insurance Commission (Commission) had requested a series of ruling with respect to persons claiming to have been employees of SRC during 1996, and an officer of the Canada Customs and Revenue Agency (CCRA) was authorized by the Minister to issue rulings in relation to certain questions. Once those rulings were issued, each person concerned with the effect of a ruling – including the Commission – had the right to appeal - to the Minister – within 90 days, pursuant to section 91 of the Act. In accordance with section 93 of the Act, the Minister decided each appeal and issued a decision relevant to each worker. Those workers who appealed a decision of the Minister to the Tax Court of Canada - and maintained that course of action - are those persons named in the within style of cause.
[13] Counsel for the respondent advised the Court the Minister was not seeking any finding in respect of any appellant that would have the effect of worsening that person’s position regarding either the period of employment or the amount of insurable earnings as stated in the decision issued by the Minister.
[14] In the course of issuing rulings, the Rulings Officer – Janet Mah – sent questionnaires to each appellant. During the appeals process, another questionnaire was utilized by the Appeals Officer – Bernie Keays – as part of his decision-making process. In the course of the investigation conducted by HRDC, most of the appellants were interviewed, some more than once. Throughout the hearing of the within appeals, there were numerous references to those questionnaires and to interviewers’ notes and other documents relevant to the interviews. During the hearing, questionnaires were commonly identified as either a Rulings Questionnaire or – in the case of a subsequent questionnaire - an Appeals Questionnaire. Unless there is a need to do so, I will not identify whether the particular questionnaire pertaining to a specific appeal was generated during the rulings stage or the appeals process and will refer to the relevant document by tab number within a specific exhibit.
[15] Although the periods of employment and other facts differ from appellant to appellant, the following assumptions of fact, extracted from the Reply to the Notice of Appeal (Reply) of Varinder Kang (2000-2354(EI)) apply to each appellant in the within proceedings and are as follows:
a) the Payer was a corporate entity, incorporated on February 26, 1996 and 100% of the issued shares were held by Manjit Rana;
b) the Payer was in the business of providing farm labourers to farms located in the Lower Mainland and in addition, sold Records of Employment ("ROE");
c) the Payer, in addition to providing farm labour, operated a blueberry business;
d) the Payer maintained one bank account only and this account was at the Toronto Dominion Bank at 49th and Fraser Street, Vancouver (the "Bank Account") and all transactions went through this Bank Account;
e) the Payer never made any withdrawals of cash from the Bank Account;
f) the T4 summary completed by the Payer indicated gross wages of $795,358.00 for 108 employees for the 1996 taxation year;
g) the total deposits to the Payer's bank account were $414,466.95 for the period April, 1996 to December 31, 1996;
h) the total payroll deductions at source per the Payer's T4 summary including the Payer's share of employment insurance and Canada Pension Plan contributions were $160,642.51;
i) the Payer remitted to the Receiver General for Canada $3,724.74 on August 15, 1996 and no other payments on account of deductions at source were remitted;
[16] Notwithstanding that proceedings were based on common evidence and that the majority of exhibits filed – as set out in detail later – applied to most appellants, it is important to state that each appeal depends on its own particular facts and will receive an independent analysis of the evidence relevant to that matter. The evidence often concerned details such as start and end dates of employment, method of transportation to and from work, amounts and timing of payment(s), nature of work alleged to have been performed and the location thereof. Because there was often no paper trail to support certain vital aspects of an appellant’s case, it became apparent credibility would be a major issue in nearly every instance. Therefore, there was a great deal of testimony concerning matters one might otherwise tend to relegate to the category of trivia or minutiae, but were significant in the context of these cases. By way of example, the testimony of several appellants - through the interpreter - including examination-in-chief, cross‑examination and re-examination, occupied two or three days. Although the benefits were still calculated in weeks for those appellants who commenced employment prior to July 1, 1996, the issue of hours of work was an overriding component of these appeals because the majority of appellants maintained they had been hired to pick berries - or to perform other services – on the basis of receiving an hourly wage. The Minister’ position - with respect to those appellants alleging they were paid an hourly rate for berry picking – is that the actual remuneration paid by SRC to workers - during 1996 - was based on piecework at a certain amount per pound or per flat of berries – in accordance with industry practice - and that no workers were compensated for picking berries by way of an hourly wage, at the minimum established by provincial law, or otherwise. One must examine the testimony of each appellant - and of other witnesses - in relation to relevant documents, previous statements – whether under oath at Examination for Discovery (Discovery) or during an HRDC interview – and attempt to make sense of the business operations carried out by SRC during the relevant periods. When I deal with the evidence as it pertains to each appellant, there will be apparent redundancy but the nature of each worker’s case is such that it must be dealt with on an individual basis with close regard to the facts applicable to his or her appeal. The onus is on each appellant to prove his or her case on a balance of probabilities and that requirement was repeated several times during the course of the proceedings in an effort to ensure each appellant was aware of the importance in presenting to the Court all relevant facts and to disclose – fully - the circumstances of their employment including details of the work performed such as hours, location, method of payment and identity of co-workers. In the course of proceedings, the impact of the assumptions of fact relied upon by the Minister, as set forth in the Reply applicable to each appellant, was explained to those appellants represented by agents other than Darshen Narang or those appearing on their own behalf.
[17] Counsel for the respondent and Darshen Narang - agent for the first group of appellants – consented to the introduction of a large number of exhibits, the majority of which were in binders containing numerous documents. In the course of completing the process of Discovery, each appellant had been provided with a binder of documents pertaining specifically to his or her own appeal. The appellants represented by other agents and/or those self-represented – at some point – either had advised counsel for the respondent they agreed said exhibits could be filed with the Court or - at the outset of proceedings or upon making an appearance for the purpose of providing testimony – consented to filing of the following exhibits, described as:
R-1 – Respondent’s Book of Documents – Vol. 1, tabs 1‑35, inclusive;
R-2 – Respondent’s Book of Documents – Vol. 2, tabs 36‑62, inclusive;
R-3 – Respondent’s Book of Documents – Vol. 3, tabs 63‑79, inclusive;
R-4 – Respondent’s Supplementary Book of Documents – Vol. 1, tabs 1‑135, inclusive;
R-5 – Respondent’s Supplementary Book of Documents – Vol. 2, tabs 136‑275, inclusive;
R-6 – Respondent’s Supplementary Book of Documents – Vol. 3, tabs 276‑389, inclusive;
R-7 – Respondent’s Supplementary Book of Documents – Vol. 4, tabs 390‑444, inclusive.
R- 8 – Respondent’s Miscellaneous Book of Documents – tabs 1-31, inclusive;
R-9 – Respondent’s Book of Documents re: Inderjit Singh Atwal (Docket # 2000‑2362), tabs 80-106, inclusive;
R-10 – Respondent’s Book of Documents re: Sharinder Bagri (#2000‑2363), tabs 80‑106, inclusive;
R- 11 – Respondent’s Book of Documents re: Jaswinder Bassi (#2000‑2359), tabs 80‑118, inclusive;
R-12 – Respondent’s Book of Documents re: Taro Bassi (#2000‑2319), tabs 80‑106, inclusive;
R-13 – Respondent’s Book of Documents re: Gurmail Cheema (#2000‑2321), tabs 80–108, inclusive;
R-14 – Respondent’s Book of Documents re: Jaswinder Cheema (#2000‑2322), tabs 80‑110, inclusive;
R-15 – Respondent’s Book of Documents re: Ajmer Gill (#2000‑2367), tabs 80‑108, inclusive;
R-16 – Respondent’s Book of Documents re: Gurbachan Gill (#2000‑2323), tabs 80‑111, inclusive;
R-17 – Respondent’s Book of Documents re: Gurmail Singh Gill (#2000‑2653), tabs 80‑107, inclusive;
R-18 – Respondent’s Book of Documents re: Ravjit Gill (#2000‑2368), tabs 80‑112, inclusive;
R- 19 – Respondent’s Book of Documents re: Varinder Jassal (#2000‑2357), tabs 80‑108, inclusive;
R-20 – Respondent’s Book of Documents re: Gurcharan Johal (#2000‑2329), tabs 80‑111, inclusive;
R-21 – Respondent’s Book of Documents re: Karmjit Johal (#2000‑2331), tabs 80‑112, inclusive;
R-22 – Respondent’s Book of Documents re: Harbans Kang (#2000‑2356), tabs 80‑112, inclusive;
R-23 – Respondent’s Book of Documents re: Varinder Kang (#2000‑234), tabs 80‑108, inclusive;
R-25 – Respondent’s Book of Documents re: Didar Mehat (#2000‑2334), tabs 80‑113, inclusive;
R-26 – Respondent’s Book of Documents re: Prabhjot Minhas (# 2000‑2335), tabs 80‑106, inclusive;
R-27 – Respondent’s Book of Documents re: Harbans Purewal (#2000‑2360), tabs 80‑117, inclusive;
R-28 – Respondent’s Book of Documents re: Parmjit Rehal (#2000‑2365), tabs 80‑115, inclusive;
R-29 – Respondent’s Book of Documents re: Bakhshish Thandi (#2000‑2366), tabs 80‑114, inclusive;
R- 30 – Respondent’s Book of Documents re: Gian Thandi (#2000‑2370), tabs 80‑116, inclusive;
R-31 – Respondent’s Book of Documents re: Sukhwinder Toot (#2000‑2342), tabs 80‑116, inclusive;
R-34 – Respondent’s Book of Documents re: Bhagwant Grewal (#2000‑2324), tabs 80‑109, inclusive;
[18] As the relevant testimony of each appellant is reproduced in detail in these reasons, I will identify a particular binder - labelled Respondent’s Book of Documents and marked with a specific Exhibit number - applicable to that appellant and, thereafter, unless otherwise noted, a tab number will refer to documents located within that binder.
VARINDER KAUR KANG
[19] Varinder Kaur Kang testified in Punjabi and the questions and answers and other aspects of the proceedings were translated from English to Punjabi and Punjabi to English by Russell Gill, interpreter. The respondent’s Book of Documents relevant to the appellant’s appeal – 2000-2354(EI) - is Exhibit R-23. She appealed from the decision of the Minister concerning the insurability of her employment with SRC during the period from October 6 to December 28, 1996. The Minister decided the appellant was not employed in insurable employment because she was not employed under a contract of service pursuant to paragraph 5(1)(a) of the Act. The appellant’s position is that she was employed under a contract of service during said period and had insurable earnings in the sum of $4,410. The Minister relied on the following assumptions of fact set forth in paragraphs 4 (j) to (n), inclusive, of the Reply to the appellant’s Notice of Appeal:
j) the Appellant delivered her second child on August 30, 1996;
k) the Appellant required 12 weeks of insurable employment to qualify for employment insurance benefits during the 1996 taxation year;
l) the Appellant gave conflicting statements to authorities with respect to the method of pay and the timing of same, the duties of employment, the days and hours of work, the location of the farms, the identity of fellow workers, the childcare arrangements and the transportation method;
m) the records provided, for example, the ROE, the T4 slip, the employee earnings record, the cash receipt, in regards to the Appellant, were fabricated to give the appearance that the Appellant worked for and was paid by the Payer and these records were a sham;
n) the Appellant did not perform any duties for the Payer during the Period.
[20] The appellant stated she began working for SRC on October 6, 1996 and continued to provide services to that employer until her layoff on December 28, 1996. She acknowledged having received an ROE following layoff, a copy of which appears at tab 93 and identified her Social Insurance Number (SIN) thereon, amended by someone in reference to the last three digits, as correct. The appellant recalled having attended an interview in which numerous questions were put to her by an official – Janice Morrow - employed by HRDC. At tab 96, the appellant identified her signature which appears on the last page of a 13-page document entitled Supplementary Record of Claim which recorded – in the handwriting of Morrow – the contents of the interview conducted on May 26, 1997. Kang stated she arrived in Canada on October 8, 1993 and is not proficient in the English language. Throughout the interview, she was assisted by a Punjabi/English interpreter. If a question was asked that she did not understand, then she would call upon the interpreter to explain it to her in Punjabi and her answer - in Punjabi – would be interpreted – in English – to the interviewer. At tab 98, Kang identified her signature on a document entitled Statutory Declaration to the Commission, dated September 10, 1997, although she does not recognize the handwriting thereon. At tab 107, Kang identified a document headed "Questionnaire To Be Completed By Worker" that she had completed in her own handwriting but stated the answers provided therein had been dictated to her by an employee of an organization called Progressive Intercultural Community Services Society (PICS) (see Exhibit R-8, tab 1, p. 2) that assists immigrants with respect to various matters. Kang stated she was issued a T4 for 1996 and filed an income tax return for that year.
[21] In cross-examination by Johanna Russell, counsel for the respondent, Varinder Kaur Kang stated she is 29 and following her arrival in Canada lived in Montréal until moving to Surrey, British Columbia in August, 1994. In February, 1992, she had married Baldev Singh Kang. Her maiden name was Mahli and her mother is Balvir Kaur Malhi, a co-appellant in the within appeals. The appellant’s parents, a brother and two sisters, one of whom – Ranjit Kaur Malhi – also worked for SRC in 1996, came to Canada in May, 1996. Her mother-in law ‑ Harbans Kaur Kang is a co-appellant and her father-in-law ‑ Harbhajan Singh Kang - was one of the van drivers transporting SRC workers during 1996. The appellant stated she has three children, born in February, 1995, on August 30, 1996 and in September, 2000. Kang stated she completed Grade 11 in India and in the course of her schooling had studied English – as a subject – for 4 or 5 years. In Montréal, she attended English as Second Language (ESL) classes for two months. After moving to Surrey in August, 1994, she went to ESL instruction for another two or three months. At tab 91, Kang identified her signature at the bottom of a form entitled "Insurable Employment Questionnaire". She stated she understood that the form - dated 06/01/97 (January 6, 1997) – related to her unemployment insurance (UI) benefits. Kang agreed with counsel’s suggestion that she had also completed the relevant application forms for her mother and sister but added that even though her handwriting appears on those documents, she had received assistance from other persons – at different times - in completing them. Kang recognized – at tab 86 – a document described as a Questionnaire which had been completed in her own hand with answers provided with the assistance of her husband. In order to complete the worker’s Questionnaire – tab 107, dated October 18, 1999 – Kang stated she had relied on assistance provided by a male official or volunteer at PICS, although she did not know his name and had not attempted to ascertain this information prior to completing the Questionnaire. The appellant stated she had learned about PICS through a Punjabi‑language radio broadcast. Counsel referred the appellant to an answer provided at Discovery – November 29, 2001 – in which she had been referred to the said Questionnaire and agreed she had not mentioned having received any assistance from anyone at PICS. During 1996, the appellant’s husband ‑ Baldev Singh Kang – was employed as a taxi driver, working an 8 hour or 9-hour shift ‑ 5 days per week – starting at 6:00 p.m. The appellant’s mother also lived in Surrey, about 5 minutes – walking - from the appellant’s residence and her brother and sister were both attending high school in 1996. Kang obtained her British Columbia Driver’s Licence in 1996, prior to her employment with SRC and had worked for two months at a plant nursery and also at a chocolate factory for 4 months where she had been laid off upon her employer learning of her pregnancy. Prior to her lay off, she had been provided with information concerning EI maternity benefits. When applying for said benefits, the appellant stated she had considered she might be short one week of work within the period needed to qualify. In 1996, Kang stated she had a joint account with her husband at a branch of Canada Trust in Surrey. Turning to the circumstances of the appellant’s hiring by SRC, Kang advised counsel that a friend of her mother was working at SRC and mentioned to management that the appellant was looking for work. Later, during a telephone conversation, Kang spoke with Surinder (Shindo) Suran and Bant Suran whom she considered to be the owners of the SRC business. Kang stated Bant drove a van that transported workers to various job sites and that Shindo was not only a driver but also supervised workers. The appellant stated she had never met Manjit Rana although co-workers had informed her that Rana was Shindo’s brother. Kang stated she recalled the interview – tab 95 – held at the HRDC office and agrees that – at Q. 1 - concerning what languages she could speak, read or write, she provided the Answer (A) as follows: English, Punjabi, Hindi. At Q. 2, inquiring as to the completion of the Application for Unemployment Insurance Benefits, Kang responded it had been “completed on her own”. Following the birth of her first child in February, 1995, the appellant admitted she had suffered back pain which had limited her work at the nursery to less than two months due to the need to lift heavy pots onto carts and that she had her gall bladder removed on December 3, 1996. As a result of that surgery – which had been scheduled for some time – she could not work for three days and the appellant agreed she may have missed some working days between October 6 and December 28, due to medical appointments, although she cannot recall the frequency or timing of these visits, if any. Kang’s second child was born at the end of August, 1996, and due to some complications, the appellant had to rest for three weeks and was unable to breast-feed. During this period, child care was undertaken by her husband and a lady – Harbans – who lived upstairs. After school, her brother and sister came to the house and assisted in caring for the older child and the baby. Kang stated her mother – Balvir Kaur Malhi – took some time off work in order to care for the newborn. Counsel referred Kang to an answer she had provided during an HRDC interview – tab 96, p. 12 - headed “Child Care questions” in which Kang stated her mother had helped care for the baby one week in September. Kang responded that her mother had also helped during evenings – after work – by taking the baby to her own residence. The appellant stated that she rode to work in a brown van on her first day. The driver was Bhan Singh Sidhu who had been a teacher in India and – as a mark of respect – was referred to by the workers/passengers as “Master”. Fellow workers were addressed as “Uncle”, “Auntie”, or “Sister”. Kang stated she rode to work in the van together with her mother ‑ Balvir Kaur Mahli – and her sister, Ranjit Kaur Mahli but had never travelled to work in the company of her mother-in-law Harbans Kaur Kang nor had she been transported to work in a van driven by her father-in-law, Harbhajan Singh Kang. She pointed out that the only drivers who had ever taken her to and from work were Bant, Shindo and/or Master. Kang stated both parents had worked for SRC at some point earlier in the 1996 season but was unsure of the exact periods of employment. Her father drove one of the vans owned by SRC and parked it overnight at a nearby gas station, perhaps a 15-minute walk from his residence. In October, 1996, her husband’s parents went to India and took her eldest child (18 months) with them where they remained for 6 or 7 months. During the HRDC interview – tab 96, p. 3, Q. 10 – the appellant was asked about details of travel to work whether by bus or van, description of the vehicle, identity of driver(s), consistency of vehicle use and other identifying details. The answer of the appellant – as recorded by the interviewer – is that she was “picked up always from home .... used to call him Master because he was a teacher in India .... drove the van the whole time”. Counsel referred the appellant to a similar question (#8) in the Questionnaire ‑ tab 107 - about the identity of the van/bus driver to which she had responded by writing “Different Drivers”. At Q. 9 of said Questionnaire, in response to the query “Did you always have the same van/bus driver?” the appellant had written “No”. The appellant explained that Master had always driven the same brown van but that she had also been driven to work in a cream-coloured van. Also, Bant Suran and his wife, Shindo, had driven her to work in a white van and/or a small red car which held 5 passengers. The appellant stated she had never ridden to work in a bus but had ridden to work in the van with Master until almost the middle of November. Counsel referred the appellant to documentation indicating Master – Bhan Singh Sidhu – had been laid off by SRC on October 12, 1996 according to forms submitted to HRDC by Master himself when applying for benefits. Counsel suggested to the appellant that – now - she found herself in the position of having to invent other drivers during the remainder of her alleged employment since Master was no longer around following his layoff which occurred only 6 days after Kang’s purported first day of employment with SRC. Kang replied that she had understood the questions concerning drivers as relating to which person “mostly” had driven her to work. As for her last day of work, the appellant said she was certain that Shindo had been her driver. During the HRDC interview – tab 96, p. 3, Q. 9 – the appellant’s recorded answer to the second part of the written question “was the same method of transportation used for the entire period?” was “Van – always a van she went to work in”. Kang stated she had meant to say that she “mostly” had gone to work in a van as that was her understanding of the sense of the question. Counsel referred Kang to the first part of the last question in the Questionnaire at tab 86, namely “How did you get to the work site?” and the appellant’s response therein “in van from my home”. At tab 107, Q. 5, in response to the question, “How did you get to the job site each day?” Kang had written “S & R Contractor’s van and bus”. Kang stated she had not understood that she was being asked about how she had – personally – travelled to work and had provided that answer because she knew SRC also owned a bus which was used to transport workers to the fields. Counsel pointed out to the appellant that in the same Questionnaire - at Q. 7 – her response to the question “Were you picked up by van or bus?” Kang’s answer was “sometime van – sometime bus”. Kang explained the confusion therein must have arisen due to the PICS’ worker misunderstanding her answers or not recording – properly - her responses to those questions. The appellant reiterated she had travelled to work in the same van as her mother and sister, Ranjit. Also, she recalled that her mother and sister had been laid off at different times. Counsel referred Kang to ROEs issued for her mother and sister indicating the last day of work for both was the same. Kang was referred to a response provided during an HRDC interview ‑ tab 96 – in relation to a question - #13 – concerning how many persons were in the vehicle. The appellant’s recorded answer was “8 people @ the most, sometimes less” and in December that there were “5 or 6 persons.” When counsel reminded the appellant that during her examination-in-chief she stated 18‑20 passengers had been transported in the van driven by Master, Kang replied this larger number was intended to refer only to peak times during the season. The usual van in which she rode to work had 3 or 4 wide seats, facing forward. Kang recalled the work day as beginning with the pick-up by the van driver between 5:30 a.m. and 6:30 a.m. and ending with the drop-off between 4:00 p.m. and 7:00 p.m. depending on the circumstances on a particular day. Referred by counsel to an earlier statement in her interview ‑ tab 96 – the appellant agreed the usual time she returned home was between 5:00 p.m. and 6:00 p.m. despite having given an answer recorded as “btn (between) 5 & 6 p.m., always return home”. Describing her first day at work – October 6 – Kang stated she separated blueberries – in flats - from leaves and other material and set aside the larger berries. This task occupied almost one week and was performed at two farms, both located in the Abbotsford area. The appellant stated she had informed SRC management that she could not perform heavy work and was permitted to work – outside – by herself. The second week of work involved cutting off dry branches from raspberry bushes. Again, this work was performed on a farm near Abbotsford with other workers whom she knew only as “Uncle, “Auntie” “Sister” and/or “Brother”. The appellant stated the next work performed at two farms in Richmond - referred to by workers as “the Chinese Farm” and the “White Farm” – was in respect of vegetables, i.e., cauliflower, zucchini, potatoes, long white radishes (lo bok), turnips and peppers. The vegetable work consisted of pulling vegetables from the ground, washing them and placing them in a container and it occupied her time throughout the month of November. Peppers were the first to be picked, followed by harvesting of zucchini, lo bok, potatoes and turnips. Following that - at the beginning of December – Kang stated she worked on a farm where ‑ together with other workers - she tied wires to branches on raspberry bushes. She had surgery on December 3 and later returned to work where she continued to tie vines and wash and pack vegetables until the end of her employment on December 28, 1996. Counsel referred the appellant to a report prepared by an expert in crops – including harvesting times – within the Lower Mainland area relevant to the within appeals. In said report, coun