Date: 20020502

Dockets: 2001-3945-EI,

2001-3946-CPP

BETWEEN:

1084767 ONTARIO INC. OPERATING AS CELLULAND,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Bowman, A.C.J.

[1]            These appeals under the Canada Pension Plan and the Employment Insurance Act are from decisions of the Minister of National Revenue that Cecilia Sia-Lan Tong was employed in insurable employment for the purposes of the Employment Insurance Act and in pensionable employment for the purposes of the Canada Pension Plan.

[2]            Mr. Jeff Wong is the owner and president of the appellant. He represented the appellant at trial and was the only witness for the appellant.

[3]            In the period in question the appellant carried on the business in Scarborough of selling cellular telephones and accessories.

[4]            Ms. Tong was engaged by the appellant from November 2, 2000 to January 21, 2001 at which time Mr. Wong says he dismissed her for what he described as "misconduct". He says she accepted payment by means of a credit card that turned out to be stolen.

[5]            Mr. Wong testified that Ms. Tong was engaged as an outside commission agent, that she seldom came into the office, that she had no fixed hours, that she used her own car to try to sell cellular phones and that she paid her own expenses and thus she only came into the office when she brought a customer in to complete a deal and that she was able to complete deals outside of the office and she was free to determine the prices. He said she was paid by commission and he put in evidence a memorandum which read as follows.

CELLULAND, SCARBOROUGH LOCATION

TO:          CECELIA TONG - OUTSIDE SALES

DATE: NOV 2, 01

RE:           OUTSIDE SALES/COMPENSATION SCHEDULE

EFFECT NOV 2, 01 - OUTSIDE SALES COMMISSION

COMMISSION:     $10.00 - UPGRADE HARDWARE

                                                $25.00 - NEW ACTIVATION

                                                $25.00 - 2 INI ACTIVATION

BONUS:        FIRST 10 ACT. UNITS >                                                        - $100.00

                      SECOND 10 ACT. UNITS (20 UNITS > )                              - $200.00

                      THIRD 10 ACT. UNITS (30 UNITS > )                                  - $350.00

                      (ABOVE ACTIVATION: NEW CORE ACTIVATION, 2 INI, P.A.U.G. ACT. EXCEPT R4U OR SELLING HARDWARE)

The memorandum contained a handwritten notation:

Rec'd by Cecilia Tong Nov. 2,01

[6]            Ms. Tong testified that she had never seen the memorandum. She says she used her car only to drive to work, that her hours were Monday to Wednesday, 10:00 a.m. to 6:30 p.m., Thursday and Friday from 10:00 a.m. to 7:00 p.m. and Saturday 11:00 a.m. to 4:00 p.m., that she worked only in the store and never visited the customers outside the store and her rate of pay was $7.95 per hour.

[7]            This case requires no analysis of the decision of the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R., 87 DTC 5025, or the recent decision of the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 559, [2001] S.C.J. No. 61, which substantially approved the four-in-one test enunciated in Wiebe Door. If I accept Mr. Wong's version Ms. Tong obviously was not an employee. If I accept Ms. Tong's testimony she just as obviously was an employee.

[8]            The evidence of the two witnesses is diametrically opposed. I reserved judgment because I do not think findings of credibility should be made lightly or, generally speaking, given in oral judgments from the bench. The power and obligation that a trial judge has to assess credibility is one of the heaviest responsibilities that a judge has. It is a responsibility that should be exercised with care and reflection because an adverse finding of credibility implies that someone is lying under oath. It is a power that should not be misused as an excuse for expeditiously getting rid of a case. The responsibility that rests on a trial judge to exercise extreme care in making findings of credibility is particularly onerous when one considers that a finding of credibility is virtually unappealable.

[9]            In this case, I find the testimony of Ms. Tong more reliable. The notion that a person is engaged by a cellular phone store to drive around the city and sell phones, with no specified area, no set hours and no particular instructions or guidelines about the price to be charged strikes me as inherently implausible. I accept Ms. Tong's evidence. It has a ring of truth to it.

[10]          The appeals are dismissed.

Signed at Ottawa, Canada, this 2nd day of May 2002.

"D.G.H. Bowman"

A.C.J.COURT FILE NOS.:                                    2001-3945(EI), 2001-3946(CPP)

STYLE OF CAUSE:                                               Between 1084767 Ontario Inc.

Operating as Celluland and

                                                                                                The Minister of National Revenue

PLACE OF HEARING:                                         Toronto, Ontario

DATE OF HEARING:                                           April 24, 2002

REASONS FOR JUDGMENT BY:      The Honourable D.G.H. Bowman

                                                                                                Associate Chief Judge

DATE OF JUDGMENT:                                       May 2, 2002

APPEARANCES:

Agent for the Appellant:                     Jeff Wong

Counsel for the Respondent:              Catherine Letellier de St-Just

COUNSEL OF RECORD:

For the Appellant:                

Name:                                --

Firm:                  --

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-3945(EI)

2001-3946(CPP)

BETWEEN:

1084767 ONTARIO INC. OPERATING AS CELLULAND,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeals heard on April 24, 2002, at Toronto, Ontario, by

The Honourable D.G.H. Bowman

Associate Chief Judge

Appearances

Agent for the Appellant:                     Jeff Wong

Counsel for the Respondent:              Catherine Letellier de St-Just

JUDGMENT

                It is ordered that the appeals from the decisions made under the Employment Insurance Act and the Canada Pension Plan be dismissed and the decisions be confirmed.

Signed at Ottawa, Canada, this 2nd day of May 2002.

"D.G.H. Bowman"

A.C.J.