This is an appeal under Section 80(b) and (c) by the Commission from a decision of the Board of Referees which reversed the Commission and found that the farmer in question was unemployed within the meaning of the Act and allowed his appeal from a directive of the Commission that he was not unemployed and that his benefits were suspended from June 29th, 1992.

The claimant is a bus driver with the Swan Valley School Division in Swan River, Manitoba and is also a farmer.

The farm questionnaire indicates that the total acreage of the farm was 640 acres, and of that acreage,300 acres were cultivated, 300 acres were pasture and 40 acres were woodland.

The claimant also owned 30 beef cows and 30 calves and his farm implements consisted of one 1975 2-150 tractor, one 1967 1850 White tractor, a 24 foot CCIL cultivator, a 1975 CCIL combine, and one 1967 Ford two-ton truck. He indicated that his work on the farm from April to September consisted of spring seeding and spraying, then harvesting; his working hours during seeding and harvest were from 5:00 p.m. to 11:00 p.m., and from October to March, from 10:00 a.m. to 11:00 a.m., feeding the cows and "watching the cows during calving.,, His gross return, including grants and subsidies for 1992, he estimated to be $12,000.00. He indicated that farming was his main means of livelihood, but that he needed the bus driving job to subsidize his farm income (Exhibit 7). The Board, in its reasons (Exhibit 9-1), found that:

His gross returns for 1991 were $34,423, and for 1990, $35,000.00. The important question in this matter is Regulation 43(2) which reads as follows:

In short, this means that if his farming occupation is deemed to be so minor that he would not normally follow it as a principal means of livelihood, he is entitled to benefits. But if it is not so minor, he is not entitled to benefits.

The principles to determine whether employment is so minor in nature are found in Schwenk, CUB 5454, Dubé, J. The tests laid down by Justice Dubé are the following:

(1) the time spent

(2) the capital and resources invested

(3) the financial success or failure of the enterprise

(4) the continuity of the business

(5) the nature of the employment, and

(6) the willingness of the claimant to accept or seek other work. 

I have indicated already that the claimant spends a considerable amount of time year round working on the farm, although his hours are staggered as a result of his other employment, driving a school bus.

We do not know the amount of money invested in the farm, but I have indicated that from the size of the farm and the farm machinery the claimant owns, that it is an extensive operation.

The gross income here would indicate that it is an important operation and that his gross returns for the last three years have been significant.

He has operated the farm for more than ten years and it is a going concern.

I have indicated his efforts insofar as the farming operation is concerned, and they are substantial.

There is no evidence that he has any history of full-time employment during the farming season; nor does he have a history of full-time or part-time employment during July and August.

The Commission states that the Board has made two errors of law: one in not considering the criteria in Schwenk, CUB 5454, and the other in the Board's interpretation of his income in which the Board mistaken misapplied Section 57(6)(b) of the U.I. Regulations. (See Strayer, J., in Koski, CUB 21528) which apparently enabled the Board to draw a conclusion that farming was not his primary enterprise, notwithstanding his comments in Exhibit 7. This is clearly an error in law which affected the results of the Board, as did the fact that they did not consider the criteria sufficiently in Schwenk and apply those six principles cited by Dubé, J.

In the result, therefore, the appeal from the Board of Referees will be allowed due to the errors in law which I have cited, and the decision of the Commission is restored. 

UMPIRE