CUB 24917
This is an appeal by the Commission under Section 80(b) and (c) of the Unemployment Insurance Act which read as follows:
Sec. 80. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of tact that it made in a perverse or capricious manner or without regard for the material before it.
The claimant was a truck driver gravelling the municipal roads in the Rorketon area in the R.M. of Lawrence, No. 143. The claimant worked from July the 27th, 1992, his last day of work being October the 15th, 1992, when he was laid off. He was cut off benefits from October 26th, 1992, being notified of same on November the 18th, 1992. The claimant owns 1/4 of a f arm and leases an additional five quarters, and operates a total of 958 acres. He owns 3 bulls, 58 cows, 15 calves, and a full line of farm equipment. He claims he has given all the livestock to his spouse but he still looks after them and they are his responsibility. The shared ownership of this operation is between the claimant and his wife. The claimant indicates his gross returns from the farm for the first twelve months of 1992 were $23,967.00. That represents his 50 per scent share in the operation, as the balance of the operation is owned by his wife. With the assistance of family members (his children Geraldine, Jennifer, and Jeff, together with his wife), he performs all duties of a full-scale farming (ranching) operation (Exhibits 5, 6, 7, 8, and 9).
His work history in the last nine years has consisted of bus driving and some casual work. His latest bus driving position was a term job from November the lst, 1991, to February the 7th, 1992 (Exhibit 4).
Applying the six tests found by Dubé, J., in CUB 5454, Schwenk, and bearing in mind that these six tests are only apposite if they are relevant and useful, (see Strayer, J., in CUB 21513, Sabiston), I now turn my attention to the six elements.
(1) Time Spent:
The different aspects of the farming/ranching operation, and the size of the operation, the amount of livestock, the time required for even just the calving and haying season, is extensive and definitely is more than a minor operation,
(2) Money Invested:
We do not know the amount of his investment, but his land and equipment are of considerable scale.
(3) Financial Success:
The gross for ten months in 1992 was $23,967.00, which does not include the possible selling of the 15 calves. Again, the profit margin is not the relevant factor in considering this aspect, but rather, the scale of the operation is important. That is why the term "gross returns" are used in determining a major or minor farm operation.
(4) Continuity:
This farm has been in operation since 1978 and is a going concern and will continue to be so in the future. He indicated his main intention is, in the future, to make his farming viable to the point where he will not have to work off the farm at all.
(5) Nature of Em
Everything from the cattle operation to the calving season to the daily checking and feeding of the cattle, the haying season, and general maintenance of the farm, are all handled by the claimant with the assistance of his family members. This is a very substantial operation and certainly is not minor in extent.
(6) Availability:
Based on the claimant's previous work history, being that of a bus driver, which is considered as part-time employment, and the twelve weeks of only evening work between July the 27th and October the 16th, 1992, the claimant's availability appears to be that of farming activities and he has not proved otherwise.
The umpire in CUB 8064 states:
... his own evidence says he was helped by his wife and father with various farm activities, example, seeding, haying, and combining. This is quite normal in a great many families on farms in western Canada. It does not affect the fact that he was seriously engaged in farming in a substantial way. In that respect the situation does not differ from that of a farmer who hires one or more men to work on his farm, and no one would think that a f armer who has much of the f armwork done by hired hands is not engaged in farming as his main means of livelihood.
I conclude that the Board of Referees was wrong and has made an error of law in that it did not properly construe the indicia cited in Justice Dubé’s tenets.
The farm operation was infinitely more substantial than his spreading gravel over the township roads, and I find it was his principal occupation with this extensive operation in cattle, grain, and his substantial farm equipment. All in all, it was a most successful operation and one that was not so minor in extent that it would not be his principal employment. The appeal is therefore allowed and the directive of the Commission is restored.
UMPIRE