CUB 25491
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim for benefit by Donald COOK
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IN THE MATTER OF an appeal to an Umpire by the Commission from the
decision of a Board of Referees given at Sarnia, Ontario, on May 28, 1992.
DECISION
CULLEN, J.
This appeal came on for hearing before me at Sarnia, Ontario, on August 16, 1994. Although duly served with notice of this hearing the claimant did not appear. Accordingly my decision is made on the record.
The Commission is appealing the unanimous decision of the Board of Referees ("the Board") which overturned the decision of the Commission. The Commission had ruled that the claimant was not unemployed within the meaning of sections 8 and 10(l) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended ("the Act") and section 43 of the Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, as amended ("the Regulations") by reason of working as a farmer.
The claimant was laid off from his employment with Tank Truck Transport Limited and filed a claim effective February 9, 1992. In addition, he completed a farm questionnaire indicating that he owned a 150 acre farm cultivating soya beans and wheat. He further indicated that his wife did all the farming except for the planting and combining, that he did not consider the farm to be his principal source of livelihood and that he was available for work throughout the year, including the farm season, as defined by the Commission. He stated that he assisted in the farming on nights and week-ends and estimates his workload at approximately forty to fifty hours per week. Based on the information presented, the Commission determined that the claimant was self-employed as a farmer for the period of March 31 to October 1 (as defined in ss. 43(3) of the Regulations) and therefore not entitled to benefits.
The claimant appealed this decision to the Board, which overturned the Commission's ruling. The Board's unanimous decision, in its entirety reads:
ISSUES
Whether the claimant is unemployed pursuant to section 8 and 10 of the Unemployment Insurance Act and Regulation 43.
FINDINGS AND REASONS OF THE BOARD
The Claimant Mr Cook appeared before the board in his appeal. The claimant presented his case and gave evidence that he has been called back to work as of April 8, 1992 and has continued to work to his present time. The claimant also indicated that it would be his intention to continue working while work was available through out [sic] the farming season.
DECISION OF THE BOARD
The board unanimously allows the appeal and denies the commissions [sic] ruling. As recognized by the Commission of March 31 to October 1. The claimant also gave evidence that it was his past practice to work in his own occupation of a truck driver as long as employment was available.
The board finds that the claimant was not self employed as a farmer and would allow the appeal.
The Commission appeals this decision on the ground that the Board erred in law and made an erroneous finding of fact in determining that the claimant was not self-employed within the statutory farming season. The issue of self-employment is governed by section 43 of the Regulations which reads:
43.(1) Subject to subsections (2) and (3), where a 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.
Thus, the farming season is defined by subsection (3) and the Board must determine whether the claimant's employment falls within subsection (1) but not the exception in subsection (2) in order to determine if he is eligible for benefits.
The Board determined that the claimant was not self-employed within the meaning of subsection (1) and thus did not consider the minor in extent exception in subsection (2). However, the Board's decision lacks any meaningful review of the evidence or reasoning which supports this decision, particularly in light of the evidence presented which tends to suggests that the claimant was self-employed as a farmer. Instead, the Board's decision centres around whether the claimant is available for work within the farming season. Unfortunately for this claimant, the Board erred in law in addressing itself to the wrong question and would seem to have erred in fact, given the evidence to support the Commission's position that the claimant was self-employed as the operator of a farm.
The issue under section 43 of the Regulations is one of employment, not availability and the evidence leads me to conclude that the claimant was indeed self-employed as a farmer. While I accept that his wife did a great portion of the farming work, the claimant owned the farm, derived benefit and profit from the farm and did, on a fairly regular basis, help work at operating the farm. It is not necessary that a claimant do all the labour and management duties on his own to be considered self-employed (CUB 13429). Looking at the six factors which must be considered in assessing whether employment is minor in extent within the meaning of subsection (2), namely: 1) time spent, 2) 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 - is it the type of business that would normally occupy the claimant?, and 6) the willingness of the claimant to accept or seek other employment (originally formulated in CUB 5454 and quoted extensively since), there appears to be sufficient evidence to support the Commission's position, especially with respect to the time spent on farming by the claimant, the capital invested in the farm and the revenue generated by the operation. However, as the Board has not yet considered this issue, I leave that to the Board to determine.
The Commission's appeal is allowed and pursuant to section 81 of the Act, the matter is referred back to a differently constituted Board for redetermination in a manner consistent with these reasons.
B. Cullen
UMPIRE
OTTAWA
August 22, 1994.