FRANÇAIS 

on December 16th, 1993. 

D E C I S I O N 

THE HONOURABLE A.H. HOLLINGWORTH, Q.C.: 

Notice was sent to the claimant of this hearing on April the 19th, 1994, and the A/R (acknowledgement of receipt) card was returned to the office of the Umpire on May the 4th, 1994, indicating that the claimant had received notice of the hearing and signed for same on April the 27th, 1994. I am satisfied that the claimant has received notice of the hearing and therefore give a decision on the record.

This is an appeal by the Commission under Section 80(b), error of law, and (c), error of fact. By Exhibit 1, the Commission has indicated that the claimant could not receive benefits after October the 11th, 1993, because "your main occupation is farming, and therefore you cannot be considered unemployed."

The evidence indicates that the claimant filed an initial application for benefits effective October the 10th, 1993 (Exhibit 2). He had been employed as a weed supervisor for the period from April the 1st, 1991, to September the 30th, 1993 (Exhibit 3). The claimant completed a "farm questionnaire" in which he indicated he had been involved in the farming business since 1971 and owned a hundred per cent of the farm. The total acreage of the farm was 1200 acres, of which 800 acres were cultivated, 300 acres were pasture, and 100 acres were woodland. His livestock consisted of 30 beef cattle, 12 beef calves, and 250 chickens. He owned a full line of farm machinery consisting of two tractors, one cultivator, one combine, and one grain truck.

The claimant indicated that his personal farming activity from April to September involved repairing fences, baling hay, and seeding crops which he did during the evenings and weekends. From October to March, his personal activity involved feeding the cattle and gathering eggs, which was also done in the evenings and on weekends. He indicated that his brother helped him with the farming operation and indicated finally that his gross earnings from his farming activities for 1992 were $85,000.00 (Exhibit 4).

On October the 15th, 1993, an officer of the Commission made contact with the claimant to clarify the extent of his farming activity. The claimant stated that of the 1200 acres he owned, 400 acres were crop, 300 acres were hay, 300 acres were pasture, and 200 acres were woodland. He also stated that his brother owned 960 acres of farm-land and had the same equipment, and they shared the labour. The claimant added that he would be working for the Department of Agriculture on a contract basis, but was unsure of the exact date that he would commence (Exhibit 5). Contact with the claimant's employer revealed that the weed supervisor's job would become a seasonal six-month job. The employer added as a result of banked hours, the claimant took almost every Friday off, and also took the odd day off to do the haying (Exhibit 6).

The claimant indicated that he hired helpers when needed and he declared that his work history off the farm had been basically full-time, with hired help and help from his brother.

On November the 23rd, 1993, contact with the Manitoba Agriculture Credit Corporation revealed that the claimant had taken three loans through the Corporation. There were two outstanding loans as one had recently been paid in full. Of the two remaining loans, one had been taken out June 30th, 1986, to buy land. This was the claimant's seventh M.A.C.C. loan, and the other loan had been taken out March the 30th, 1990, which was a farm refinancing loan. It was explained that the Credit Corporation gave loans to farmers for money investment required in the farm operations. The Credit Corporation did not provide financing for personal items (Exhibit 11). The claimant amplified the matter of outside help in conversation with the Commission officer, stating that the people he hired were "custom seeders," and "custom harvesters" (Exhibit 7-2).

The Commission counsel has submitted that the Board of Referees made an error of law in not considering the six criteria laid down by Dubé, J. in Schwenk. They are as follows:

(1) the time element

(2) money invested

(3) financial success

(4) continuity

(5) nature of the employment

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

Although the claimant has worked off the farm since April the 1st, 1991, he lives on the farm. He does the daily chores and operates the farm on an ongoing basis. The number of head of cattle and chickens and time required during the calving and haying season indicate that this is an extensive operation, and the time involved indicates that one would normally carry it out as a principal means of livelihood because of where the work is performed (Exhibit 4).

We do not know the amount of money invested, but the farm questionnaire (Exhibit 4) reveals that the claimant owns a hundred per cent of the farm with extensive farming equipment, and in addition, has taken several loans over a period of time through the Manitoba Credit Corporation.

The gross returns for 1992 are $85,000.00 (Exhibit 4), but he expected his gross return for 1993 to be $60,000.00. However, the claimant stated to the Board of Referees that his gross returns for 1993 were $28,000.00. The profit factor, of course, is not the relevant factor, but rather the scale of the operation, which in this case is extensive.

He has operated the farm successfully since 1971 (Exhibit 4).

The cattle and chicken operation, the haying involved, and the general maintenance of the farm all relate to the claimant's skills and strengthens the decision that one would not continue to do these activities if not to make it their principal means of livelihood (Exhibit 4).

There is no question the claimant is available for work, but the disentitlement is in fact for working. The claimant works on the farm after his working hours and weekends where he has found employment elsewhere. During the time he works off the farm, the farming is done by his brother and hired help, the so-called "custom workers" -- the custom seeders and custom harvesters (Exhibits 4 and 7) . The claimant states that he is available for work whenever work is available. While this may be true, as he was employed in insurable employment since April the 1st, 1991, and the hired help and his brother continue the farming activities in his absence, this does not negate the fact that the claimant is fully employed on the farm when he is laid off.

It is fair to reach the conclusion that on the basis of the time spent, the financial success, the money invested, and the continuity of the enterprise, the claimant has demonstrated that his involvement in the operation of his business is more than "minor in extent" and thus does not meet the requirements of Regulation 43(2). In the result, therefore, I find that the Board of Referees made an error in law and the decision of the Board is reversed and the finding of the Commission that he is not unemployed is affirmed.