FRANÇAIS

PINARD, Umpire

The application of section 42(2) of the Unemployment Insurance Regulations must be considered here:

42.(2) Notwithstanding section 44, a claimant who is employed in agriculture or horticulture shall be regarded as having worked a full working week during any week in which he works

a) not less than five days; and

b) not less than 40 hours in the aggregate.

The following excerpt from the Board of Referees' decision under appeal should be reproduced here:

[Translation]

According to the claimant's testimony, he worked only during seeding and harvest time, namely, from May to November, during these two years. During the winter, from November to May, he lived on the farm, and his wife and his son looked after the 45 cows; there was no work for him.

After hearing the claimant's testimony, the Board of Referees was sceptical and found that the claimant was not very credible, since there were a number of contradictions in both his written statement and his testimony. However, even if the Board were to give the claimant the benefit of the doubt, the fact remains that if the claimant had wanted to make his testimony more credible, he should have submitted evidence of the job searches that he conducted during his alleged periods of unemployment.

Instead, he simply said that he stayed next to his wood stove while his wife took care of both the cows and the calving and that she did not need his help.

This is essentially an issue of credibility and assessment of the facts. However, in this situation, the Umpire cannot substitute himself for the Board of Referees when the appellant, as in this case, failed to show that the Board of Referees based its decision or order on an erroneous finding of fact that was made in a perverse or capricious manner, without regard for the material before it. On the contrary, in this case, the claimant signed every page of a lengthy declaration in which he confirmed that he worked on the farm seven days a week, specifying that he had to work approximately 40 hours per week in the winter with his son Réal.

It is true that section 42(2) of the Regulations concerns the state of unemployment and not availability. However, nothing prevented the Board of Referees, strictly in regard to the claimant's credibility, from considering the lack of evidence of job searches conducted, given the particular circumstances in this case.

Finally, the claimant criticized the Board of Referees for not hearing his wife's testimony; however, he acknowledges that the Board of Referees first asked whether she was going to say the same thing as him, and he said yes. Under the circumstances, I am of the opinion that I do not have to intervene.

For all of these reasons, I must dismiss the appeal.

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UMPIRE

OTTAWA
July 15, 1986