FRANÇAIS

DENAULT, J., UMPIRE: 

The claimant was a co-proprietor, with his brothers, of a farm he rented from a company in which he was also a joint shareholder. He was disentitled to benefit for the period of April 7 to September 27, 1985. He was dissatisfied with this decision and, claiming that the farm he worked was a grain farm, on which activities recommenced only in June of each year, he appealed the disentitlement decision for the months of April and May 1985. 

Since the claimant states that he holds 33% of the shares in the company Les Fermes St-Léon Inc., he is a shareholder and as such, is a partner in the company. Where a claimant is employed in farming and subsection (2) does not apply to his employment, he shall not be regarded as working a full working week at any time during the period that begins with the week in which October 1st falls and ends with the week in which March 31st falls, if during that period he did not work. Such a claimant would be entitled to benefit for that period. 

DECISION 

Having examined the evidence on the record and heard the claimant and his representative, the Board of Referees finds that the claimant does operate a business in partnership or a co-adventure. Referring to subsections 43(1) and (3) of the Regulations, the Board finds that the claimant is regarded as working a full working week from March 31 to October 1. Consequently, the Board of Referees upholds the decision of the Commission's officer. 

The claimant is appealing this decision to the Umpire. 

Even though I do not agree with the reasons given by the Board of Referees, whose decision seems to me to be ambiguous and to be based, in particular, on subsection 43(3) of the Unemployment Insurance Regulations, I still hold that the claimant's appeal must be dismissed. 

The sections of the Act and Regulations pertaining to this matter read as follows: 

19. When an insured person who qualifies under section 17 makes an initial claim for benefit, a benefit period shall be established for him and thereupon benefit is payable to him in accordance with this Part for each week of unemployment that falls in the benefit period. 

21.(1) A week of unemployment for a claimant is a week in which he does not work a full working week. 

Section 43 (Regulations) 

(1) Subject to subsections (2) and (3), where claimant is 

(a) self-employed or engaged in the operation of a business on his own account or in partnership or a co-adventure, or 

(b) employed in any employment other than that described in paragraph (a) in which he controls his working hours, 

he shall be regarded as working a full working week. 

(2) Where a claimant is employed as described in subsection (1) and the employment is so minor in extent that a person would not normally follow it as a principal means of livelihood, he shall, in respect of that employment, not be regarded as working a full working week. 

(3) Where a claimant is employed in farming and subsection (2) does not apply to his employment, he shall not be regarded as working a full working week at any time during the period that begins with the week in which October 1st falls and ends with the week in which March 31st falls, if he proves to the satisfaction of the Commission that during that period, 

(a) he did not work, or 

(b) the work he performed was so minor in extent that it would not have prevented him from accepting full-time employment. 

It seems to me that two observations clearly emerge from the reading of subsection 43(3) of the Regulations: 1) subsection 43(2) does not apply to an agricultural worker; and 2) the presumption stipulated in subsection 43(1) is subject to the mitigation contemplated in subsection 43(3) only for "the period that begins with the week in which October 1st falls and ends with the week in which March 31st falls." In other words, an agricultural worker may be entitled to unemployment insurance benefit if he proves, to the satisfaction of the Commission, that he did not work during this so-called inactive season of farming, or that the work he performed was so minor in extent that it would not have prevented him from accepting full-time employment. The period in question, we repeat, is from October to March. However, during the period regarded as "active" in farming, namely from April to September, the agricultural worker may not benefit from the mitigation provided for in subsection 43(3). It should be recalled, however, that in the case before us, the months that concern us are April and May. 

If the claimant, having filed a benefit claim on December 29, 1984, was disqualified by the Commission from receiving benefit from April 7 to September 27, 1985, one must necessarily infer that the Commission regarded him as entitled to benefit from October 1984 to March 1985. It is therefore admitted that the claimant proved his compliance with the provisions of subsection 43(3) for that period. However, since the claimant is disputing his disentitlement for April and May, namely for the beginning of the period regarded as active in farming, it is subsection 43(1) which must be applied to his case. The claimant is presumed to work a full working week if he operates a business on his own account or in partnership or a co-adventure. 

Having analyzed the claimant's situation, the Board of Referees found that he operated a business in partnership or a co-adventure. I have reviewed the file, and it seems to me that there is no reason to vary this finding of fact, as made by the Board of Referees. In fact, the claimant is not only co-proprietor of the farm with his brothers, but also rents it from a company in which he is one of the shareholders. He is both a partner and a co-adventurer. 

The Federal Court of Appeal (No. A-674-85) has had occasion to interpret the term "co-adventure" employed in paragraph 43(1)(a): 

A person is engaged in a co-adventure in a business within the meaning of that provision when, regardless of the legal forms, he has an interest in it with others. 

For these reasons, the claimant's appeal is dismissed.