Date: 19990713
Docket: 97-844-UI
BETWEEN:
RICHARD BOLDUC,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a determination dated April 11, 1997 by which the work done by the appellant, Richard Bolduc, from December 24, 1995, to April 6, 1996, for the business operating under the firm name “Robert Manègre” was found to be insurable.
[2] The respondent based his determination on the following facts:
[TRANSLATION]
(a) the payer is a construction contractor;
(b) during the period at issue, the appellant worked for the payer building a hog house;
(c) the appellant was under the payer's control;
(d) the payer provided all of the necessary tools aside from hammers and tape measures;
(e) the appellant was paid $10 an hour;
(f) the payer did not report the work to the governments and agencies concerned;
(g) during the period at issue, there was an employer-employee relationship between the payer and the appellant;
(h) during the week of March 31 to April 6, 1996, the appellant worked 13 hours and was paid $130.
[3] The appellant’s evidence was made up of his testimony alone, supported by documentary evidence. Counsel for the respondent called Robert Manègre, Serge Landreville and Alain Venne to testify.
[4] The facts can be summarized quite easily. The appellant claimed that he had worked without pay on the construction of a large hog house. He said that it was unpaid work the sole purpose of which was to improve his knowledge of construction so that he might eventually obtain his qualification cards so as to be able to work in that field.
[5] The appellant also said that he obtained permission from Robert Manègre, who was in charge of part of the construction site, to go to the site whenever he was available. There were two groups of workers on the site, those under Mr. Manègre’s supervision and those for whom the owner of the hog house under construction was directly responsible.
[6] The appellant further stated that he was receiving unemployment insurance benefits at the time and was always available to take paid employment. He worked on the construction site basically to improve his knowledge of construction, since at the time he had knowledge of and qualification cards for only formwork erection or, in other words, the installation of forms for foundations.
[7] The evidence showed that the appellant’s case was also the subject of proceedings before the board of referees. The appellant gave that administrative tribunal the same explanations, and on that basis was able to win the case.
[8] The appellant also told both this Court and the board of referees that Mr. Manègre, as a result of his many problems with various government agencies, had sent for him and offered him $5,000 if he would say that he had been paid for the work he did building the hog house. Finally, the appellant said that he had categorically refused Mr. Manègre’s offer.
[9] When Robert Manègre testified, he referred to the very many problems he had experienced with respect to the construction work on the hog house. He said that the scope of the project had required him to hire several workers, who numbered more than 10 at one point. He testified that all of them, without exception, were paid $10 an hour in cash.
[10] The hours of all the workers, including the appellant, were recorded on a sheet that stated the given name of each worker, again including the appellant. Each week, everything was written up and submitted to the owner of the hog house under construction, who gave Mr. Manègre a cheque to pay the invoice indicating the hours worked by the various individuals.
[11] The cheque received was then cashed and the employees were paid in cash. Mr. Manègre clearly and unequivocally stated that the appellant was part of the crew of workers. He clearly stated that the appellant was paid $10 an hour like all the other workers. He said that he did not remember meeting with the appellant to incite him to lie in return for $5,000.
[12] Mr. Manègre had to make an assignment of his property as a result of all the trouble he had with workers’ insurability and with income tax assessments.
Analysis
[13] I noted that Mr. Manègre was very unhappy with the situation, since he obviously did not want to hurt the case of the appellant, whom he had known for a very long time. However, he was very clear, firm and specific about one fundamental aspect of the case, namely that Richard Bolduc worked for him and was paid $10 an hour like all the other workers who were hired.
[14] Why would he have lied about this aspect of the case? Having made an assignment of his property, he could not suffer any consequences. As well, it would imply that he had defrauded the owner of the hog house by invoicing him for time he was not paying for. Yet the duration of the work was such that the owner of the hog house would never have accepted, or would certainly have become aware of, the fraud, especially since the weekly payments were preceded by a very detailed description of the workers and the hours worked.
[15] The hours were recorded and checked prior to payment and I do not think that the agricultural producer could have been duped in that way without complaining, especially since the hours claimed were numerous and regular.
[16] As for the $5,000 offered to incite the appellant to lie, I did not see or understand what interest Mr. Manègre could have had in making such an offer. I believe that the appellant made the whole thing up basically to improve a doubtful or even implausible explanation.
[17] The appellant was receiving unemployment insurance; legally, he could not work and had to be available at all times. The explanation that he was working without pay, being trained and expanding his knowledge made his case somewhat appealing even though questionable and not very plausible.
[18] His counsel skilfully pointed out that it would have been in his interest to report his hours with a view to eventually taking the test to obtain the qualification card he wanted. Yet the appellant already had his hours, since he had taken the test in question a few times.
[19] Counsel suggested that the Court should decide on the basis of the interests underlying the testimony of the various people involved, including the appellant. On that basis, there is no doubt in my mind that it was very much in the appellant’s interest to lie, if only because of the obligation to repay the unemployment insurance benefits, the associated penalties and, finally, the added income that would have to be reported on his tax returns after T4s were issued.
[20] This is a case in which all of those involved in the clandestine work lost out.
[21] Although the appellant’s memory was excellent when he testified—everything was no doubt made easier by the fact that this was not the first time he had to explain his version of events—the Court does not believe him and concludes that, beyond a shadow of a doubt, he was paid when he worked on the construction of the hog house.
[22] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 13th day of July 1999.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 30th day of April 2000.
Erich Klein, Revisor