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Date: 19980316 Docket: A-664-97 MONTRÉAL, QUEBEC, THE 16th DAY OF MARCH 1998 CORAM: THE HONOURABLE MR. JUSTICE DENAULT THE HONOURABLE MADAME JUSTICE DESJARDINS THE HONOURABLE DEPUTY JUSTICE CHEVALIER BETWEEN: MICHEL TURCOTTE Applicant AND: CANADA EMPLOYMENT INSURANCE COMMISSION Respondent AND: DEPUTY ATTORNEY GENERAL OF CANADA Third Party J U D G M E N T The application for judicial review is dismissed. Pierre Denault J.A. Certified true translation Peter Douglas Docket: A-664-97 CORAM: DENAULT J.A. DESJARDINS J.A. CHEVALIER D.J. BETWEEN: MICHEL TURCOTTE Applicant AND CANADA EMPLOYMENT INSURANCE COMMISSION Respondent AND DEPUTY ATTORNEY GENERAL OF CANADA Third Party Hearing held at Montréal on Monday, March 16, 1998 Judgment delivered at Montréal on Monday, March 16, 1998 REASONS FOR JUDGMENT OF THE COURT BY: DENAULT J.A. Date: 19980316 Docket: A-664-97 CORAM: DENAULT J.A. DESJARDINS J.A. CHEVALIER D.J. BETWEEN: MICHEL TURCOTTE Applicant AND: CANADA EMPLOYMENT INSURANCE COMMISSION Respondent AND: DEPUTY ATTORNEY GENERAL OF CANADA Third Party REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal on Monday, March 16, 1998) DENAULT J.A. [1] We are of the view that the claimant"s application for judicial review must fail. [2] In our view, the Umpire was right to remind the Board of Referees, which had applied the six factors from Schwenk (CUB 5454) in allowing the claimant"s appeal, of the much more recent decisions of this Court in Jouan (A-366-94), Taschuk (A-619-95) and Vande Bunte (A-697-95), where the Court specifically recognized that in interpreting subsection 43(2) of the Unemployment Insurance Regulations,time spent is "the most important, most relevant and only basic factor to be taken into account". While it was not irrelevant to consider other factors, it seems the Board of Referees made the mistake of attaching too much importance to the six factors, taken individually and together, rather than focussing on the time factor. The Umpire was therefore justified in deducting from the claimant the 35 to 40 hours per week he spent on his business while working on the job sites. As for the time spent on tenders, ordering equipment, meeting clients"in short, looking after the company without keeping track of the hours"this time, albeit voluntary, should be taken into account. [3] As an operator of a business, it was up to the applicant to rebut the presumption in subsection 43(1) of the Regulations that he was working a full working week. Given the statutory declarations by the partners, the oral evidence before the Board of Referees did not justify its statement that the applicant [TRANSLATION] "was unable to do 40 hours/week of solicitation". [4] The Umpire was justified in intervening and varying the decision of the Board of Referees. [5] The application for judicial review will be dismissed. Pierre Denault J.A. MONTRÉAL, QUEBEC March 16, 1998 Certified true translation Peter Douglas FEDERAL COURT OF APPEAL Date: 19980316 Docket: A-664-97 Between: MICHEL TURCOTTE Applicant AND: CANADA EMPLOYMENT INSURANCE COMMISSION Respondent AND: DEPUTY ATTORNEY GENERAL OF CANADA Third Party REASONS FOR JUDGMENT FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD COURT FILE NO.: A-664-97 STYLE OF CAUSE: MICHEL TURCOTTE Applicant AND CANADA EMPLOYMENT INSURANCE COMMISSION Respondent AND DEPUTY ATTORNEY GENERAL OF CANADA Third Party PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 16, 1998 REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE DENAULT, THE HONOURABLE MADAME JUSTICE DESJARDINS AND THE HONOURABLE DEPUTY JUSTICE CHEVALIER) DELIVERED FROM THE BENCH BY: The Honourable Mr. Justice Denault Dated: March 16, 1998 APPEARANCES: William De Merchant for the applicant
third party - 2 - A-664-97 SOLICITORS OF RECORD: Campeau, Ouellet, Nadon, Barabé, for the applicant Cyr, De Merchant, Bernstein, Cousineau, Heap, Palardy Montréal, Quebec George Thomson for the respondent Deputy Attorney General of Canada and the third party Ottawa, Ontario |
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