CUB 30067
IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
and -
IN THE MATTER of a Claim by CAMPBELL, Leo
- and-
IN THE MATTER of an Appeal to an Umpire
By the Canada Employment and Immigration Commission
to an Umpire from the Decision of a Board of Referees
Given at Brandon, Manitoba on August 20, 1992
DECISION
FLANIGAN J.
This matter came on before the Umpire at the City of Brandon in the Province of Manitoba on the 23rd day of June, 1995. The Commission was represented by Mr. Davis Besler and the Respondent Claimant appeared in person. The Decision appealed from overturned the Commission Agent's finding that the Respondent Claimant was self-employed as a farmer during the farming season.
The Commission appeals under section 80(b)and (c) of the Unemployment Insurance Act which provide for situations where the Board of Referees erred in law in making its Decision or Order whether or not the error appears in the face of the Record or where the Board of Referees based its Decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
The Claimant filed an initial application for benefits effective April 26, 1992 and he was employed as a commercial fisherman by Lake Side Fisheries from December 7, 1991 to April 4, 1992 when the winter fishing season ended.
The Commission's position is that the file shows that the Respondent Claimant operates a total of 2,880 acres of which 1,388 acres are pasture and hayland and the remaining is woodland. He has a total of 78 head of cattle and a full line of machinery required for a cattle operation. He has been involved in the cattle operation since 1989 and states that his father set him up in ranching to take over the farm. The Commission further alleges that in a telephone interview with the Respondent on June 4, 1992, he stated that he and his father operated the farm, however, he the Respondent had taken over the farm in 1989 and his father was considered as family help. The Commission's position further is that the ownership in the land is not a determining factor, but who owns the cattle and operates the farm activities. The six tests stated in CUB-5454 by Mr. Justice Dube sitting as Umpire, are the time involved in the operation, the money invested, the financial success, the continuity, the nature of the employment and the availability of the Claimant. All to be considered. Because of the application of the six tests it is clear from the file, according to the Commission, that he is a major farmer on his own evidence. The Commission cites CUB-8064 in part and I quote:
"the responsibility of a farm operation was his. His own evidence was
that he was helped by his wife and father with various activities which is
normal for western Canada farms. It does not effect the fact that he was
seriously engaged in farming in a substantial way".
The Umpire went on to say:
"in that respect, the situation does not differ from that of a farmer
who hires someone to work on his farm and no-one would think that a
farmer who has farm work done by a hired hand is not engaged in
farming as his main means of livelihood".
I think that quotation is very applicable to this case.
The Commission submits that the Board erred in law when it did not consider the fundamental principles outlined in CUB-5454 in determining whether or not this self-employment is to be regarded as "minor in extent" (regulation section 43(2)).
The evidence clearly indicates that the Claimant was involved in the farming activities in more than a minor way. His time and financial investment in the operation of the ranching business clearly exclude him from regulation 43(2). It is clear, in my view, that this is the type of operation that would normally be followed as a principle means of livelihood.
In my view, in relying solely on the net income as they did, the Board erred in law in applying the factual situation to the relevant jurisprudence and to the Act. The Respondent Claimant was engaged in a farming operation which was the type of operation that one would engage in as a principle means of livelihood. In failing to apply all the surrounding circumstances and the factual situation to the jurisprudence, in my view, the Board committed a reversible error in law.
The Appeal will therefore be allowed.
THE HONOURABLE KEITH A. FLANIGAN,Q.C.
FLANIGAN J., Umpire
OTTAWA, Ontario
August 16, 1995