Gill v. M.N.R.

Gill v. M.N.R.
Court (s) Database
Tax Court of Canada Judgments
Date
2006-06-16
Neutral citation
2006 TCC 149
File numbers
2001-2098(EI)
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Employment Insurance Act
Decision Content
Docket: 2001-2098(EI)
BETWEEN:
GURDEV S. GILL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2100(EI)
BETWEEN:
MANJIT K. GILL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
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 June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2101(EI)
BETWEEN:
HARMIT K. GILL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
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 June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2115(EI)
BETWEEN:
SURINDER KAUR GILL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2116(EI)
BETWEEN:
SURINDER K. GILL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2117(EI)
BETWEEN:
SANTOSH K. MAKKAR,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2118(EI)
BETWEEN:
JARNAIL K. SIDHU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2120(EI)
BETWEEN:
HARBANS K. KHATRA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2121(EI)
BETWEEN:
HIMMAT S. MAKKAR,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Docket: 2001-2125(EI)
BETWEEN:
GYAN K. JAWANDA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
____________________________________________________________________
Appeal heard during the course of 24 days between July 4, 2005 and
September 19, 2005 at Vancouver, British Columbia.
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Agent for the Appellant:
Ronnie Gill
Counsel for the Respondent:
Amy Francis and Shawna Cruz
Agent for the Intervenors:
Ronnie Gill
____________________________________________________________________
JUDGMENT
The appeal is allowed and the decision of the Minister is varied in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia, this 16th day of June 2006.
"D.W. Rowe"
Rowe, D.J.
Citation: 2006TCC149
Date: 20060616
Dockets: 2001-2098(EI), 2001-2100(EI),
2001-2101(EI), 2001-2115(EI),
2001-2116(EI), 2001-2117(EI),
2001-2118(EI), 2001-2120(EI),
2001-2121(EI), 2001-2125(EI)
BETWEEN:
GURDEV S. GILL, MANJIT K. GILL, HARMIT K. GILL,
SURINDER KAUR GILL, SURINDER K. GILL, SANTOSH K. MAKKAR,
JARNAIL K. SIDHU, HARBANS K. KHATRA,
HIMMAT S. MAKKAR, GYAN K. JAWANDA,
Appellants,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
RAJINDER SINGH GILL & HAKAM SINGH GILL,
OPERATING AS R & H GILL FARMS,
Intervenors.
REASONS FOR JUDGMENT
Rowe, D.J.
[1] Each appellant appealed from a decision – dated January 11, 2001 – issued by the Minister of National Revenue (the "Minister"). Each decision dealt with a specific period relevant to the particular circumstances of the individual named therein.
[2] Amy Francis and Shawna Cruz appeared as counsel for the respondent. Ronnie Gill, Certified Management Accountant, appeared as agent for all appellants and for Rajinder Singh Gill and Hakam Singh Gill, equal partners in a partnership operating as R & H Gill Farms, who are named in the style of cause as intervenors.
[3] On October 12, 2004, Justice 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 filed under the Employment Insurance Act (the "EIA"). The Order also included directions concerning ongoing conduct of the litigation and by further Order dated June 10, 2005, the hearing of the within appeals was set to commence on July 4, 2005 at Vancouver, British Columbia.
[4] The within proceedings occupied 24 days during which 22 witnesses testified. Most 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 – translated written documents contemporaneously and converted the printed word into speech. Included in the binders filed as exhibits, were reports of numerous interviews that had been conducted with the appellants and other persons. I am satisfied the interpretation of the spoken word and the translation of documents or interpretation of questions and answers within the transcripts of Examinations for Discovery of various appellants was performed in an extremely efficient manner and to a standard that permitted all Punjabi-speaking witnesses to present fully their testimony and for all appellants to submit relevant facts pertaining to their specific case. Ronnie Gill, agent for the appellants and the intervenors is also capable of communicating orally in Punjabi. On occasion, Punjabi-speaking individuals testified mainly in English but Russell Gill was present in order to assist in interpreting certain words or phrases. On one occasion, Mr. Kasmir Gill, a certified court interpreter, substituted for Russell Gill.
[5] In the body of hundreds of documents forming part of the material entered as exhibits in these proceedings, the names of some individuals have been spelled in different ways. Punjabi is a syllable-based language and the conversion to the English alphabet sometimes produces a different spelling if written phonetically.
[6] In all cases, the employer was R & H Gill Farms hereinafter referred to as Gill Farms. The appeals fell within two categories. Harmit Kaur Gill is the wife of Hakam Singh Gill, a partner in Gill Farms. Manjit Kaur Gill is the wife of Rajinder Singh Gill – the other partner in Gill Farms – and is the sister of Harmit Kaur Gill. Since these two appellants were related to the partners, the decisions were issued by the Minister pursuant to subsection 93(3) of the EIA and the employment of each appellant was held to be excluded employment within the meaning of subparagraph 5(2)(i) on the basis their relationship with Gill Farms was non-arm’s length and the Minister was not satisfied within the meaning of the relevant provision that either appellant and the partnership would have entered into a substantially similar contract of employment if they had been dealing with each other at arm’s length. The employment involved in these two appeals encompasses certain periods in each of 1996, 1997 and 1998 and the decision letters also referred to paragraph 3(2)(c) of the former Unemployment Insurance Act (UIA) since some periods of employment for Harmit Kaur Gill and Manjit Kaur Gill were alleged to have occurred prior to the coming into force of the EIA on June 30, 1996.
[7] None of the remaining appellants are related within the meaning of the relevant provision of the Income Tax Act (the "ITA") as applied to the EIA and all periods of employment that were the subject of decisions issued by the Minister were within 1998. With respect to the remaining appellants who were not members of the Gill family, the decision of the Minister issued to each individual was based on the finding that none of them was engaged in insurable employment with Gill Farms because his or her employment during the period under consideration was considered to be non-arm’s length as a matter of fact within the meaning of the relevant provision of the ITA. However, within each decision, the Minister included an alternative position in which the number of hours of employment and the amount of insurable earnings during the relevant period for the named appellant were calculated in the event the primary position of the Minister was found – later – to be untenable as a matter of law. While this approach of issuing a decision with an alternative component may seem odd at this juncture, it will be dealt with later in the course of these reasons. The decisions issued to the non-related appellants were also based on paragraph 5(2)(i) of the EIA.
[8] Although the periods of employment and other circumstances differ from appellant to appellant, counsel for the respondent advised the following assumptions extracted from paragraphs 7(a) to 7(g) inclusive, of the Reply to the Notice of Appeal (Reply) of Harmit K. Gill (2001-2101(EI)) apply to each appellant in the within proceedings and read as follows:
(a) during the Periods, the Partnership operated a farm, consisting of approximately 8.25 acres planted in blueberries (the "Farm");
(b) the partners in the Partnership are two brothers, Rajinder S. Gill and Hakam S. Gill;
(c) the Appellant is married to Hakam S. Gill and her sister, Manjit K. Gill, is married to Rajinder S. Gill;
(d) the Partnership employed a combination of hourly employees and contract workers to pick the blueberries;
(e) the contract workers were generally hired on a day to day basis as needed and were paid on a piecework basis;
(f) the hourly employees were employed for the entire season and were paid by the hour;
(g) the Partnership guaranteed the hourly employees that they would be employed for the entire season, regardless of whether there was enough work for them to do or not;
[9] The within appeals were heard together on common evidence, and several binders filed as exhibits – as set out in detail later – applied to most appellants, but it is important to note each appeal depends on its own particular facts and requires an independent analysis of the evidence and an assessment of credibility in instances where there were conflicting versions of events and circumstances as testified to by different witnesses. As explained at the commencement of proceedings, the onus is on each appellant to prove his or her case on a balance of probabilities. Further, the appellants were informed it was important to disclose the circumstances of their employment including details concerning the hours of work, transportation to and from the job site(s), nature of tasks performed, method of payment and identity of co-workers.
[10] Counsel for the respondent and the agent for the appellants and intervenors consented to the introduction of a large number of exhibits, the majority of which were in binders containing numerous documents. In the course of the litigation, each appellant was provided with a binder of documents pertaining to his or her appeal. The following exhibits were entered:
R-1 – Respondent’s Book of Documents (Common) – Vol. 1, tabs 1-34, inclusive;
R-2 – Respondent’s Book of Documents (Common) – Vol. 2, tabs 35-50, inclusive;
R-3 – Respondent’s Book of Documents re: Gurdev S. Gill, tabs 1-14, inclusive;
R-4 – Respondent’s Book of Documents re: Harbans K. Khatra, tabs 1-15, inclusive;
R-5 – Respondent’s Book of Documents re: Harmit K. Gill, tabs 1-19, inclusive;
R-6 – Respondent’s Book of Documents re: Surinder Kaur Gill, tabs 1-13, inclusive; (Appeal 2001-2115(EI))
R-7 – Respondent’s Book of Documents re: Surinder K. Gill, tabs 1-17, inclusive; (Appeal 2001-2116(EI))
R-8 – Respondent’s Book of Documents re: Manjit K. Gill, tabs 1-23, inclusive;
R-9 – Respondent’s Book of Documents re: Himmat S. Makkar, tabs 1-15, inclusive;
R-10 – Respondent’s Book of Documents re: Santosh K. Makkar, tabs 1-14, inclusive;
R-11 – Respondent’s Book of Documents re: Jarnail K. Sidhu, tabs 1-16, inclusive;
R-12 – Respondent’s Book of Documents re: Gyan K. Jawanda, tabs 1-15, inclusive;
[11] Prior to reproducing the testimony of each appellant, I will identify a particular binder – marked with an exhibit number – applicable to that appellant and, thereafter, unless noted otherwise, a tab number will refer to document(s) located within that binder. The pages of documents located within tabs in each of the binders are stamped with a number – beginning at 1 – at the upper right corner and continue in sequence until the last page of the material in the last tab. Reference to a page number corresponds with the stamped number even though other numerical markings – handwritten in pen, pencil or typed – sometimes appear at various locations on certain pages.
Harmit Kaur Gill
[12] Harmit Kaur Gill testified in Punjabi and the questions and answers and other aspects of the proceedings were interpreted and/or translated from English to Punjabi and Punjabi to English by Russell Gill, interpreter. The respondent’s book of documents relevant to this appeal – 2001-2101(EI) – is Exhibit R-5.
[13] Harmit Kaur Gill appealed from the decision of the Minister wherein her employment with Gill Farms during the periods from May 25 to September 26, 1998, May 25 to September 27, 1997 and June 2 to October 19, 1996 was found to be uninsurable because the Minister was not satisfied that, having regard to all the circumstances, she and the Gill brothers – Rajinder and Hakam – operating Gill Farms would have entered into a substantially similar contract of employment if they had been dealing at arm’s length. The appellant’s position is that her employment during those periods was insurable and that she had earned the money paid to her in the course of performing her work in those years.
[14] Apart from the assumptions of fact set forth in paragraphs 7(a) to 7(g), inclusive, of the Reply pertaining to the appeal of Harmit Kaur Gill – stated to be common to all appellants – the assumptions in paragraphs 7(h) to 7(r) of said Reply were also relied on by the Minister, as follows:
(h) the Partnership employed the Appellant in the Periods as a supervisor on the Farm;
(i) the Appellant's sister, Manjit, was also employed by the Partnership in the Periods as a supervisor on the Farm;
(j) the hours worked by the Appellant as set out in the Partnership's records did not reflect the hours actually worked by the Appellant;
(k) there were times when, in accordance with the payroll records, the Appellant was purported to be working as a supervisor when there was in fact no work for the other workers to do;
(l) the number of hours purportedly worked by the hourly employees, as recorded in the Appellant's payroll records, were about three times the industry standard for the size of the Farm;
(m) the Partnership's wage expense for 1998 exceeded the revenue generated in that year;
(n) there was no need for the Partnership to employ two fulltime supervisors in the Periods;
(o) the Partnership issued Records of Employment to the Appellant in respect of the Periods which she used to collect Employment Insurance benefits;
(p) the Appellant is related to the Partnership within the meaning of the Income Tax Act;
(q) at all times material hereto, the Appellant was not dealing with the Partnership at arm's length; and
(r) having regard to all the circumstances of the employment in the Periods, including the remuneration paid, the terms and conditions, the duration and the nature and importance of the work performed, it is not reasonable to conclude that the Appellant and the Partnership would have entered into a substantially similar contract of employment if they had been dealing with each other at arm's length.
[15] Harmit Kaur Gill testified she is a cannery worker, living in Abbotsford, British Columbia. She is married to Hakam Singh Gill, and her sister, Manjit Kaur Gill, is married to Rajinder Singh Gill, the brother of Hakam. The appellant, a Canadian citizen, was born in India. She and her husband have 6 children. Until her husband decided to become a blueberry farmer, she had not been familiar with that crop, although she had picked strawberries on their own farm in Canada and raspberries on another person’s farm. The current farm was purchased in 1978 and Hakam Singh Gill had a full-time, off-farm job until 1998. He took two weeks holidays in the summer and worked on the farm as well as on his days off from the mill and after coming home from work. The appellant stated she had not attended school in Canada and had gained direct farming experience by working on the farm owned by her husband and brother-in-law. Although she was responsible for carrying out several tasks associated with the farm operation, she did not participate in any spraying of pesticides and/or herbicides nor was she involved with fertilizing the crops. She stated it was difficult to find farm workers to hand‑pick berries because Gill Farms did not use picking machines which, apart from being expensive, could not distinguish between green and ripe berries. She was aware of 8 types of blueberries but Gill Farms only grew 4 varieties, namely, Northland, Blue Crop, Dixie and Duke. In ripening sequence, Duke is first, then Northland, followed by Blue Crop and Dixie. In the appellant’s experience, picking times applicable to each type of blueberry can vary from year to year but occur within a 3-week period. Usually, Duke would be picked between the last week of June and the first week of July. The Northland variety ripens about a week later and picking of both types continues until the other types – Blue Crop and Dixie – are ready for harvesting. By the time the Dixie crop is ripe around the middle of August, the harvesting of Northland berries is nearly finished. Depending on the weather, the picking season for Dixie will extend into late September or early October. Harmit Kaur Gill stated Gill Farms had two categories of workers during the periods in 1996, 1997 and 1998 relevant to her appeal. Some were considered as full-time workers and were paid an hourly wage. The appellant stated although Gill Farms did not require these workers to use picking cards for the purpose of calculating payment for work performed, the partners still wanted to have a means by which to monitor average daily production of each picker. Other workers, usually hired for shorter periods of time, were paid on a piecework basis and the appellant stated it was apparent the picking skills varied considerably among a group of workers. Although the picking cards were in duplicate – when used by full-time workers – it was not necessary for any of them to retain a copy for purposes of calculating remuneration. In 1998, during the high season, Gill Farms employed between 25 and 30 workers, of which 10 to 12 were paid on an hourly basis. No workers were hired through the medium of a labour–contracting business entity. The appellant stated Gill Farms produced high-quality blueberries which were sold on the fresh market at a price higher than that paid by the canneries. However, it was necessary to ensure good berries were picked and that the green ones were removed since Gill Farms' customers were re-selling the product directly to the public. Gill Farms sold berries in large containers – lugs – to Greenfield Farms. Other customers purchased berries contained in boxes or flats. The appellant stated she often worked cleaning berries and preparing orders for delivery to customers. The appellant stated she had received a letter requesting her to attend an interview at the Abbotsford office of Human Resources Development Canada (HRDC) on November 28, 1996. She recalled she was accompanied by her son – Kulwant – in order that he could assist in understanding the procedure since his ability to speak, write and read the English language was much better than her own. Harmit Kaur Gill stated she did not receive any advice to the effect she was entitled to be represented by counsel and felt compelled to answer questions put to her by Moira Emery (Emery) – an Investigation and Control Officer (ICO) employed by HRDC – and did not have the sense she was free to terminate the interview and leave any time she chose. She recalled the room was small – perhaps 8 feet by 8 feet – without a window, and it was hot. She was interviewed by Emery who was seated in front of her, although Emery stood up on occasion when posing questions. The appellant recalled informing Emery that she could speak “some” English and could read and write “some” English but at times it was necessary for her son – Kulwant – to interpret Emery’s questions into Punjabi and to interpret her response to Emery in English. She stated Kulwant came to Canada at age 5 and, like many Indo-Canadians born in Canada, did not speak pure Punjabi but used a mixture of Punjabi and English words to communicate. Ronnie Gill, agent for the appellant, referred to notes – tab 12 – of the interview as recorded by Emery. The appellant stated she had not read those notes. She recalled that at some point near the end of 1998, Emery and Claire Turgeon (Turgeon) – another HRDC employee – attended at her residence on the Gill Farms property without having provided any advance notice. There were no workers in the field at that time. The door was answered by Rajinder Singh Gill and his wife – Manjit – was present. Harmit Kaur Gill recalled Emery and Turgeon were asking questions and that Turgeon informed her she had to provide answers even if she had difficulty recalling certain events. After a few minutes, the appellant’s daughter came down the stairs to the living room and insisted Emery and Turgeon explain the purpose of their visit. The appellant stated Turgeon’s response was to instruct her daughter not to interfere. The interview ended shortly thereafter and Harmit Kaur Gill recalled being told HRDC would be in further contact. Until this point, she had not realized there was a problem arising with respect to her eligibility for unemployment insurance (UI) benefits in connection with her employment at Gill Farms during the earlier farming seasons of 1996 and 1997 or in 1998, particularly since she had qualified – again – for benefits in respect of her insurable earnings as a result of working at Gill Farms during the 1998 growing season. Originally, she considered the HRDC visit to have been motivated by an inquiry into the entitlement of her sister, Manjit Kaur Gill. With respect to her own employment history at Gill Farms, Harmit Kaur Gill stated she began working for her husband and brother-in-law in 1996. At that time, all the blueberry plants were mature and her tasks included weighing berries, driving workers to and from the farm, filling orders, cleaning berries, dealing with employees during the day and recording their hours of work. For her services in 1998, she was paid $9 per hour. She took direction from her husband and/or her brother-in-law and worked in the field most of the time. However, she also worked off the farm at a strawberry cannery operated by Canada Safeway Limited (Safeway) under the brand name Lucerne Foods (Lucerne). When called upon to work at Lucerne, she accepted whatever hours were offered – even during blueberry picking season – because the pay was between $2 and $3 per hour more than she earned at Gill Farms. Currently, her work at the cannery permits her to earn $15 per hour but the work is seasonal and employees are called to work on the basis of seniority so her hours – per season – are somewhat limited. The strawberry season is finished at the end of June. Because the Lucerne cannery operated in shifts, the appellant, due to her lack of seniority, had to accept work beginning at 11:30 p.m. and continuing until the next morning. The appellant stated her descriptions of work at Gill Farms and at the cannery are applicable to 1996, 1997 and 1998 since – for the most part – the seasons were more or less the same. During those years, while working at the cannery, she continued to perform her tasks at Gill Farms so that she often worked the equivalent of two full shifts in one work day. Sometimes, she performed tasks such as record keeping after returning home from a shift at the cannery. Other individuals working at Gill Farms also worked at Lucerne or at a fish cannery, nursery or greenhouse since it was not unusual for people to have two jobs. Ronnie Gill referred the appellant to notes of an interview – Exhibit R-1, tab 24 – held at the HRDC office in Langley, B.C. on May 20, 1999. The appellant stated she recalled the circumstances of that meeting including being warned by Turgeon that she could be prosecuted for making false statements. She stated her impression at the time was that she was required to answer all the questions put to her by Turgeon. Several people were present including Paul Wadhawan, accountant for Gill Farms, as well as Manjit Kaur Gill, Hakam Singh Gill and Rajinder Singh Gill. An ICO – Nav Chohan – spoke Punjabi and English and Emery and Turgeon were present together with an accounting expert, James Blatchford and another accountant, Mary Anne Hamilton representing HRDC. The appellant recalled the meeting took place in a large room and that it lasted 4 or 5 hours without any substantial breaks. She stated Paul Wadhawan provided answers to some questions and that she also provided information – in English – to the interviewers from time to time. The appellant recalled Harby Rai – an HRDC employee – had visited Gill Farms on August 12, 1999 and was referred to typed notes – Exhibit R-5, tab 4 – prepared by Rai in respect of said visit. Rai had been accompanied by Turgeon, Nav Chohan and a representative of the provincial Employment Standards Branch (ESB). At that time, the appellant was inside the house preparing tea for the workers as it was cold and raining. She considered the delivery of beverages to be part of her duties as workers needed water or juice on a regular basis especially during hot weather. With respect to other duties, the appellant stated sawdust had to be placed around the plants in order to inhibit weed growth. Another problem which caused concern to workers was the height of grass which they feared might conceal poisonous snakes of the sort they had encountered while living in India. As a result, spraying had to be undertaken but the tractor could not be used to access the rows so additional manual labour was required to complete that task. The appellant was referred to a Questionnaire – tab 5 – and recalled providing those answers to Ronnie Gill who completed the form on her behalf prior to inserting her name, address and phone number on the last page thereof and indicating – in the space provided – she had been the interpreter. The appellant stated she was paid by cheque and received only small payments early in the season but was paid in full shortly after the end of the season. In this sense, she stated she was not treated differently than any other non–related employee since this practice is common in the agricultural industry and workers are aware they can request and obtain advances of salary during the course of the season. The appellant stated she recorded workers’ hours on a piece of paper and later entered this information onto a time sheet. She was referred to several sheets at Exhibit R-1, tab 32, described on the cover page as Daily Log of Workers & Produce (Daily Log). The appellant stated the document was in her own handwriting and that she had created it from time sheets in order to satisfy Turgeon who had requested production of that record. As a result, the appellant created the Daily Log in order to meet the demand – within the time frame set by Turgeon – to provide information concerning hours of work. She stated the time was recorded from the point when workers arrived in the field and began working. She recorded hours of work for those employees paid on an hourly basis for the purpose of permitting their insurable hours to be calculated prior to issuing them a Record of Employment (ROE). However, she did not record hours of work for those casual workers who were remunerated on a piecework basis. Some individuals worked only a few days and when they left, an ROE was provided only if requested. The appellant stated the goal at Gill Farms was to remove every berry from each plant and that it required 5 or 6 separate pickings to harvest properly the entire acreage, particularly in view of their somewhat specialized market involving fresh berries. She was aware that other blueberry farmers in the area picked only 2 or 3 times during the season. Depending on the number of workers, the appellant stated her sister – Manjit – and/or Hakam transported them to and from work using a truck and a car but – on occasion – it was necessary for one of them to make two trips if only one vehicle was available. She pointed out the passage of time since those seasons in 1996 through 1998 has made it difficult to remember the sequence of events since the duties performed by her were more or less the same during each year.
[16] Harmit Kaur Gill was cross-examined by Amy Francis. The appellant confirmed she had been advised by Emery and Turgeon during their visit to the farm that they wanted her to attend an interview at the HRDC office. At said interview, she agreed she had not refused to answer any of the questions put to her by Emery and that her son – Kulwant – remained in the room throughout. She stated Kulwant understands Punjabi better than he speaks it but she is able to communicate with him in that language. The appellant confirmed that she answered the questions truthfully to the best of her ability. Concerning the visit of Emery and Turgeon to the farm, as described in notes taken by each – Exhibit R-8, tabs 13 and 14, respectively – the appellant agreed there had been a formal demand issued for the production of certain documents at that time. Harmit Kaur Gill expressed her opinion that Emery and Turgeon were angry during their visit because of the volume of their voices when speaking to her and other members of the Gill family. Counsel referred to the letter of Ronnie Gill to Revenue Canada – dated September 30, 1999 – with enclosed typed sheets – Exhibit R-5, tab 6 – and to the Questionnaire at tab 5, both of which had been signed by the appellant following preparation by Ronnie Gill on her behalf. Harmit Kaur Gill reiterated her answers – in both documents – were accurate to the best of her knowledge. Regarding her language skills in English, the appellant attended Grade 10 in India and is able to read and write in Punjabi. She stated that although her ability to read and write English is limited, she is the only adult member of the family at Gill Farms with that skill and her husband, and her sister and her brother-in-law, rely on the Gill children in each family to provide assistance in that regard. The appellant handles the paperwork and her husband – Hakam – conducts all business transactions that can be handled verbally. During the summer of 1998, a daughter – Satnam – then 19, was attending college but worked on the farm when needed since she was the only member of the family with a licence to use pesticides and to mix fertilizers. In order to obtain the 5-year term licence, Satnam was required to take a course and pass an examination. Although Satnam picked berries from time to time, the appellant described those efforts as being "just for fun” rather than as part of an obligation on her part including those times when Satnam helped to weigh berries or to move tubs or other containers. Harmit Kaur Gill stated Satnam rarely transported workers and did not assist in other tasks such as the installation or removal of nets to cover the blueberry plants. Another daughter – Daljit – then 17, performed some tasks on a casual basis during the 1998 season including driving workers to and/or from work on 3 or 4 occasions. Her son – Kulwant – also helped out by loading berries onto the truck but did not drive it. The appellant stated these children had provided some services to the farm in 1996 and 1997 but cannot recall the nature and extent thereof. She stated her sister Manjit’s two sons, Baljit and Gurdev, may have helped on the farm now and then during 1998. The youngest children did not perform any farming tasks in 1998 or earlier. Counsel referred the appellant to a series of Statements of Accounts – Exhibit R-2, tab 41 – pp. 504-605, inclusive issued by Fraser Valley Credit Union (Fraser Valley) in Abbotsford, with regard to the account in the names of Rajinder Gill and Hakam Gill. Located within tab 41 at pp. 606 to 716, inclusive, are Statements of Accounts issued by the Khalsa Credit Union (Khalsa) branch on Clearbrook Road, Abbotsford, said account being in the names of Rajinder S. Gill and Manjit K. Gill. Turning to a photocopy of a cheque at p. 517 within said tab, the appellant confirmed she had written out cheque # 0388 ‑ dated May 1, 1998 – to Kulwant S. Gill in the sum of $200 and had noted "labour" on the memo line. She identified cheque # 0414 at p. 533 – dated July 3, 1998 – payable to Kulwant Singh Gill – in the sum of $300 – but stated it had not been written by her. She confirmed she had written out the body of cheque # 0455 ‑ p. 554 – dated September 3, 1998 – in the sum of $300 – payable to Kulwant Singh Gill. The appellant stated she did not have signing authority on that account so even though she wrote out cheques in accordance with the instructions of Hakam Singh Gill and/or Rajinder Singh Gill, she did not sign any of them. Counsel referred the appellant to cheque # 0467 – p. 560 – dated September 26, 1998, payable to Baljit Singh Gill in the sum of $6,500. The appellant confirmed she had written o