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Unemployment Insurance Regulations
(1.1) For the purposes of this section, the earnings of a claimant shall not be allocated to weeks during which they did not constitute earnings under section 57.
(2) Where the period for which earnings of a claimant are payable does not coincide with a week, the earnings shall be allocated to any week that is wholly or partly in the period in the proportion that the number of days worked in the week bears to the number of days worked in the period.
(3) Earnings payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.
(4) Earnings, payable to a claimant under a contract of employment without the performance of services or payable in consideration of a claimant returning to or commencing work with an employer, shall be allocated to the period for which they are payable.
(5) Earnings that are payable to a claimant under a government program intended to encourage re-employment and that are payable to the claimant as a supplement to earnings arising from a contract of employment shall be allocated to the period for which they are payable;
(6) The earnings of a claimant who is self-employed, other than in farming, or of a claimant whose earnings are by way of participation in profits or on the basis of a commission, shall be allocated to the week in which the services that gave rise to those earnings are performed and, where no services are performed, allocated to the week in which the transaction that gave rise to the earnings occurred.
(7) The earnings of a claimant who is self-employed in farming shall be allocated:
(a) if they arose out of a transaction, to the week in which the transaction occurred; and
(b) if they were received in the form of a subsidy, to the week in which the subsidy was paid.
(8) Where vacation pay is paid or payable to a claimant for reasons other than a lay-off or separation from an employment, it shall be allocated as follows:
(a) where the vacation pay is paid or payable for a specific vacation period or periods, it shall be allocated:
(i) to a number of weeks that begins with the first week and ends no later than the last week of the vacation period or periods; and,
(ii) in such a manner that the total earnings of the claimant from that employment are, in each consecutive week, equal to the claimant's normal weekly earnings from that employment; and,
(b) in any other case, the vacation pay shall, when it is paid, be allocated:
(i) to a number of weeks that begins with the first week for which it is payable; and,
(ii) in such a manner that, for each week except the last, the amount allocated under this subsection is equal to the claimant's normal weekly earnings from that employment.
(9) Subject to subsections (9.1) and (10), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation from employment in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment.
(9.1) Subject to subsection (10), where earnings are paid or payable to a claimant by reason of a lay-off or separation from employment subsequent to an allocation under subsection (9) in respect of that lay-off or separation, the earnings that were allocated shall be added to the subsequent earnings and, regardless of the nature of the subsequent earnings or the period in respect of which they are purported to be paid or payable, a revised allocation shall be made in accordance with subsection (9) on the basis of that total.
(10) Where earnings are paid or payable in respect of an employment pursuant to a labour arbitration award or the judgment of a tribunal, or as a settlement of an issue that might otherwise be determined by a labour arbitration award or the judgment of a tribunal, and the earnings are awarded to specific weeks after a finding or admission of discipline, the earnings shall be allocated to a number of consecutive weeks, beginning with the first week for which the earnings are awarded, in such a manner that the total earnings of the claimant from that employment are, in each week except the last week, equal to the claimant's normal weekly earnings from that employment.
(10.1) and ( 10.2) [Revoked, SOR/89-550, s. 1].
(11) The following payments shall be allocated to the weeks in respect of which the payments are paid or payable, namely,
(a) payments in respect of sick, maternity or adoption leave and leave for the care of a child or children referred to in subsection 20(1) of the Act;
(b) sickness or disability payments under a group wage-loss indemnity plan;
(c) payments referred to in paragraphs 57(2)(d) and (f); and
(d) workers' compensation payments, other than permanent settlement workers' compensation payments.
(12) A payment received by a claimant in respect of a holiday or non-working day that is observed as such by law, custom or agreement or a holiday or non-working day immediately preceding or following a holiday or non-working day that occurs at the establishment of the employer or former employer from whom the claimant receives that payment, shall be allocated to the week in which that day occurs.
(13) [Revoked, SOR/89-550, s. 1].
(14) [Revoked, SOR/89-412, s. 1].
(15) The moneys referred to in paragraph 57(2)(e) paid or payable to a claimant on a periodic basis shall be allocated to the period for which they are paid or payable.
(16) The moneys referred to in paragraph 57(2)(e) that are paid or payable to a claimant in a lump sum shall be allocated from the first week that those moneys are paid or payable to the claimant in such a manner that those moneys are equal in each week to the weekly amount to which the claimant would have been entitled if the lump sum payment had been paid as an annuity calculated in accordance with subsection(17).
(16.1) The moneys allocated according to subsections (15) and (16) shall not be taken into account in the allocation of other earnings under this section.
(17) For the purposes of subsection (16), the weekly amount shall be calculated as the amount of the lump sum payment divided by 1,000 and multiplied by the weekly annuity equivalent, as set out in Schedule III, corresponding to the age of the claimant at the date the lump sum is paid or payable.
(18) Where a claimant has earnings to which none of subsections (1) to (17) apply, those earnings shall be allocated:
(a) if they arise from the performance of services, to the period in which the services were performed; and,
(b) if they arise from a transaction, to the week in which the transaction occurred.
(19) For the purposes of this section, a fraction of a dollar that is equal to or greater than 1/2 shall be taken as a dollar and a fraction that is less than 1/2 shall be disregarded.
SOR/78-695, s. 1(F); SOR/78-710, s. 6; SOR/79-52, s. 5; SOR/82-778, s. 3; SOR/83-189, s. 1; SOR/84-32, s. 9; SOR/85-288, s. 2; SOR/86-58, s. 2; SOR/87-187, s. 1; SOR/87-599, s. 1(E); SOR/87-614, s. 10; SOR/88-277, s. 8; SOR/89-160, s. 3; SOR/89-412, s. 1; SOR/89-550, s. 1; SOR/90-756, s. 18; SOR/92-164, s. 16; SOR/94-446, s. 2.;SOR/95-355, s.1
(20) [Revoked, SOR/82-778, s. 3].
59. (1) Employment of a claimant that terminates more than 13 weeks prior to the time the claimant's claim for benefit is made is not employment for the purpose of section 28 of the Act.
(2) For the purposes of section 28 of the Act, where the claimant's last employment immediately prior to the time the claimant's claim for benefit is made is for a period of less than five days, "employment" shall also refer to the employment of the claimant immediately prior to the claimant's last employment.
(3) Subsections (1) and (2) apply in respect of a claimant who loses or leaves employment before April 4, 1993.
SOR/90-761, s. 17; SOR/93-178, s. 3.
59.1 (1) Subject to subsection (2), for the purposes of section 28 of the Act, "employment" refers to the last employment lost by the claimant by reason of the claimant's own misconduct, or employment that the claimant left voluntarily without just cause since the commencement of the qualifying period.
(2) Subsection (1) does not apply where the claimant has, since losing or leaving the employment referred to in subsection (1), been employed in insurable employment
(a) for the number of weeks required by paragraph 6(2)(a) of the Act; or,
(b) for 20 weeks where the claimant is a new entrant or re-entrant to the labour force, within the meaning of subsection 6(4) of the Act.
(3) Subsections (1) and (2) apply in respect of a claimant who loses or leaves employment on or after April 4, 1993.
SOR/93-178, s. 4.
Write-off of Benefit Wrongly Paid
60. (1) A penalty owing under section 33 of the Act or an amount owing under section 35, 37 or 38 of the Act may be written off by the Commission if:
(a) the total of the penalties and amounts owing by the debtor does not exceed $5 and a benefit period in respect of the debtor is not current;
(b) the debtor is deceased;
(c) the debtor is a discharged bankrupt;
(d) the debtor is an undischarged bankrupt in respect of whom the final dividend has been paid and the trustee has been discharged;
(e) the overpayment does not arise from an error made by the debtor or as a result of a false or misleading statement or representation made by the debtor, whether the debtor knew it to be false or misleading or not, but arises from a retroactive application of:
(i) a decision, ruling or determination made under Part III of the Act; or,
(ii) a decision made under Part I or Part IV of the Act in relation to benefits paid under section 25 of the Act; or,
(f) the Commission considers that, having regard to all the circumstances:
(i) the penalty or amount is uncollectable; or,
(ii) the repayment of the penalty or amount would result in undue hardship to the debtor.
(2) That portion of an amount owing under section 35 of the Act in respect of benefits received more than 12 months before the Commission notifies the debtor of the overpayment may be written off by the Commission if:
(a) the overpayment does not arise from an error made by the debtor or from a false or misleading statement or representation made by the debtor, whether the debtor knew it to be false or misleading or not; and,
(b) the overpayment arises as a result of:
(i) a delay or error made by the Commission in processing a claim for benefit;
(ii) retroactive control procedures or a retroactive review initiated by the Commission;
(iii) an error made on the record of employment by the employer;
(iv) an incorrect calculation by the employer of the debtor's insurable earnings or insurable weeks; or,
(v) an error in insuring the employment or other activity of the debtor.
SOR/82-44, s. 4(E); SOR/90-208, s. 1; SOR/92-164, s. 17; SOR/94-446, s. 3.
(vi) [Repealed, SOR/94-446, s. 3].
61. (1) For the purposes of subsections 6(2) and 11(2) and Part VIII of the Act, the regions described in Schedule II are hereby established.
(2) The Commission shall, at least once every five years after the coming into force of subsection (1), review the boundaries used by Statistics Canada in relation to its labour force survey for the purpose of determining if it is appropriate to make changes to the regions described in Schedule II.
SOR/78-810, s. 1; SOR/79-421, s. 5; SOR/79-465; SOR/79-481, s. 5; SOR/80-737, s. 1; SOR/82-673, s. 3; SOR/90-752, s. 1.
62. (1) [Revoked, SOR/90-761, s. 18].
(2) [Revoked, SOR/86-788, s. 1].
(3) Wherever practicable, a chairperson of a board of referees shall be selected in rotation from among chairpersons appointed under subsection 76(2) of the Act, and members of the board shall be selected in rotation from each of the panels.
(4) No person shall be a member of a board of referees during the consideration of a case
(a) in which that person is or has been a representative of the claimant or the employer;
(b) by which that person is or may be directly affected; or,
(c) in which that person has taken any part in the proceedings either on behalf of an association or as a witness or otherwise.
(5) Any claim for benefit or any question that is appealed to a board of referees may be considered if:
(a) the chairperson and one half of the members of the board are present; and,
(b) the claimant or the claimant's representative and the employer or the employer's representative consent.
(6) In the case of a tie vote in an appeal referred to in subsection(5), the chairperson has a casting vote.
SOR/86-788, s. 1; SOR/90-756, s. 19.
Appeals to a Board of Referees
63. An appeal to a board of referees from a decision of the Commission shall be in writing, shall contain a statement of the grounds of appeal, and shall be filed at the office of the Commission from which the claimant or the employer received notification of the Commission's decision.
Hearings Before a Board of Referees
64. (1) A claimant may apply for a hearing before a board of referees:
(a) where the claimant appeals to the board under section 79 of the Act, at the time of filing the appeal; and,
(b) where the claimant's claim for benefit is appealed by an employer under section 79 of the Act, within seven days after receipt of the notice of appeal.
(2) An employer may apply for a hearing before a board of referees:
(a) where the employer appeals to the board under section 79 of the Act, at the time of filing the appeal; and,
(b) where a claimant appeals to the board under section 79 of the Act, within seven days after receipt of the notification of the appeal.
(3) An application for a hearing before a board of referees shall be in writing and be filed at the office of the Commission at which the appeal is filed.
(4) The chairperson of a board of referees may at any time direct that there shall be a hearing and, where an application for a hearing before the board has been filed under this section, shall grant a hearing.
(5) A person required to attend a hearing before a board of referees shall be notified, in writing, by the chairperson of the board or by an officer of the Commission.
(6) The procedure at a hearing before a board of referees shall be determined by the chairperson.
SOR/90-756, s. 20(E); SOR/90-761, s. 19; SOR/92-164, s. 18.
64.1 (1) Where a claimant and an employer have applied under subsections 64(1)and (2), respectively, for a hearing before a board of referees in respect of the same appeal, and oral evidence concerning a circumstance of sexual or other harassment mentioned in paragraph 28(4)(a) of the Act is to be given at the hearing, the chairperson of the board of referees (in this section referred to as "the chairperson"):
(a) is authorized to exclude from the hearing, on application by the claimant or employer, the claimant or the employer, any representative of the claimant or the employer, or any person who is or may be a witness, when that oral evidence is being given; and,
(b) shall set the date and time at which that oral evidence is to be given.
(2) Where oral evidence is given at a hearing in the absence of a claimant or an employer who has been excluded under subsection (1), the chairperson shall direct that the evidence be provided to the excluded claimant or employer, as the case may be, by making available to that claimant or employer a copy of the audio recording of that evidence
(a) on the same day that the evidence is given; or,
(b) where it is not feasible to do so on that day, on the next working day.
(3) Where oral evidence is made available to an excluded claimant or employer in accordance with subsection (2), the excluded claimant or employer, as the case may be, may respond to that evidence orally at a hearing before the board of referees in the absence of all other persons excluded under paragraph (1)(a)
(a) on the same day that the evidence is made available; or,
(b) where it is not feasible to do so on that day, within such further time as the chairperson considers reasonable in the circumstances.
(4) Where a response has been provided by a claimant or an employer in accordance with subsection (3),
(a) the chairperson shall direct that the response be provided to the claimant or employer who did not provide that response, in the manner and within the time set out in subsection (2); and,
(b) the claimant or employer who did not provide that response may respond to that response in the manner and within the time set out in subsection (3).
SOR/93-176, s. 1.
65. At any time prior to the decision of a board of referees, any question arising in relation to a claim for benefit may be referred by the chairperson to the Commission for investigation and report.
SOR/90-756, s. 21(E).
Decision of a Board of Referees
66. (1) A board of referees shall give each of the parties interested in an appeal a reasonable opportunity to make representations concerning any matter before the board.
(2) Where any member of a board of referees dissents from the decision of the board, the reason for the dissent shall be recorded in the report of the proceedings of the board.
(3) When a board of referees has made its decision, the chairperson shall file that decision at the office of the Commission from which notice of the Commission's decision was received.
(4) The appellant and any other party interested in an appeal before a board of referees shall be notified in writing of the Board's decision.
SOR/90-756, s. 22(E).
67. [Revoked, SOR/80-264, s. 1].
68. (1) An appeal at the instance of the Commission pursuant to section 80 of the Act shall
(a) be made in writing;
(b) contain a statement of the grounds of appeal; and,
(c) be filed at the office of the umpire.
(2) An appeal pursuant to section 80 of the Act at the instance of a claimant, an employer or an association of which the claimant or employer is a member shall
(a) be made in writing;
(b) contain a statement of the grounds of appeal; and,
(c) be filed at the office of the Commission at which the decision of the board was filed pursuant to subsection 66(3).
(3) Where an appeal referred to in subsection (1) or (2) is filed, the Commission shall, within 60 days,
(a) prepare a docket containing:
(i) a copy of the appeal;
(ii) all documents that have been considered by the board of referees during the appeal;
(iii) the transcript, if any, of the evidence given during the appeal before the board of referees; and,
(iv) the written decision of the board of referees;
(b) file the docket at the office of the umpire; and,
(c) mail a copy of the docket to each interested party.
(4) The Commission may file a statement of observations and representations in connection with an appeal at the office of the umpire and mail a copy thereof to each interested party, within the time provided by subsection (3) or such further time as the umpire may allow.
(5) The appellant or any person or association that has a direct interest in an appeal or the decision thereon may, within 15 days after the day on which the docket referred to in paragraph (3)(c) is filed or within such further time as the umpire may allow, file a statement of observations and representations at the office of the Commission where the appeal was filed, and the Commission shall forward the statement forthwith to the umpire.
(6) The question as to whether any person or association has a direct interest in an appeal referred to in subsection (1) or (2) or the decision thereon shall be decided by the umpire.
(7) Subject to section 69, the umpire may, at any time subsequent to the time provided in subsection (5), render a decision on the basis of the documents filed.
SOR/80-264, s. 2; SOR/90-761, s. 20; SOR/92-164,s. 19.
69. (1) The appellant, the Commission or any person or association having an immediate interest in a decision of a board of referees or an appeal therefrom may apply in writing to an umpire for a hearing and the umpire shall thereupon grant a hearing.
(2) Notwithstanding subsection (1), the umpire may at any time direct that there shall be a hearing.
(3) Subject to subsection (4), an application referred to in subsection (1) shall, within 15 days after the day on which the docket referred to in paragraph 68(3)(c) is filed or within such further time as the umpire may allow, be filed at the office of the Commission, and the Commission shall forward the application to the umpire.
(4) An application referred to in subsection (1) that is made by the Commission may be made at any time before the umpire has entered his decision by filing an application therefor at the office of the umpire.
(5) No person shall be paid travelling allowances or other expenses for the purpose of attending a hearing unless the umpire has directed that person to attend.
(6) At least 14 days prior to a hearing referred to in subsection (1), a notice in writing shall be given by the Registrar of the umpire to each of the following persons:
(a) the appellant;
(b) the Commission;
(c) any person or association having immediate interest in the hearing; and
(d) such other persons or associations as the umpire may direct.
(7) The procedure at the hearing referred to in subsection (1) shall be determined by the umpire.
SOR/80-264, s. 3; SOR/92-164, s. 20.
70. (1) A decision of an umpire shall be in writing and a copy thereof shall be sent to
(a) the appellant;
(b) the Commission;
(c) any person or association having an immediate interest in the decision; and,
(d) such other persons or associations as the umpire may direct.
(2) [Revoked, SOR/83-490, s. 7]
(3) Where, in respect of a claim for benefit, an umpire allows an appeal from a decision of a board of referees and an application is made by the Commission in accordance with the Federal Court Act to review the decision of the umpire, benefits are not payable in respect of that claim until the final determination of the claim.
(4) Where, in respect of a claim for benefit, an umpire has declared a provision of the Act or these Regulations to be ultra vires and an application is made by the Commission in accordance with the Federal Court Act to review the decision of the umpire, benefits are not payable in respect of any claim for benefit made subsequent to the decision of the umpire until the final determination of the claim under review, where the benefit would not otherwise be payable in respect of any such subsequent claim if the provision had not been declared ultra vires.
SOR/82-1046, s. 1; SOR/83-490, s. 7.
71. (1) In this section, "deduction" means a deduction from unemployment insurance benefit that is made pursuant to subsection 34(2) of the Act.
(2) No deduction shall be made in respect of any advance or assistance or welfare payment paid by a federal agency or province or a municipal authority within the province unless:
(a) an arrangement has been entered into between the Commission and the federal agency, the government of the province or the municipal authority in respect of the deduction; and,
(b) the person to whom the payment is made has consented pursuant to subsection 34(2) of the Act to the deduction on a form provided or approved by the Commission and signed by that person.
(3) The Commission may at any time terminate an arrangement entered into pursuant to subsection (2).
SOR/90-761, s. 21; SOR/92-511, s. 1.
(4) [Revoked, SOR/92-511, s. 1].
Calculation of Employees' Actual Average Yearly Earnings
72. (1) For the purposes of subsection 46(3) of the Act, employees' actual average earnings for a year shall be calculated as the aggregate of:
(a) the total of all amounts, excluding any fractional part of a dollar in any such amount, paid as salary or wages to employees employed in Canada in the year that are:
(i) reported for that year by each employer on a return that:
(A) has thereon the Social Insurance Number of each employee; and,
(B) is made pursuant to section 200 of the Income Tax Regulations;and,
(ii) recorded in the Department of National Revenue for the purposes of the Income Tax Act for that year; and,
(b) the product obtained by multiplying the number of returns for that year, described in subparagraph (a)(i), by $0.50, divided by the number of employees referred to in paragraph (a) and adjusted, if appropriate, in accordance with subsection (2).
(2) Where, for any year, the amount calculated under subsection (1) includes a fractional part of a dollar, that amount shall (a) where the fractional part is less than $0.50, be decreased to the next whole dollar; or (b) where the fractional part is equal to or greater than $0.50, be increased to the next whole dollar.
SOR/80-811, s. 1; SOR/90-761, s. 22.
73. (1) In this section, "registration" means registration with the Commission under section 107 or 108 of the Act; "status" means status with respect to the laws governing Canadian citizenship or immigration into Canada.
(2) Every person who is required by section 107 of the Act to be registered and who has not previously been registered shall apply to the Commission for registration within three days after becoming employed in insurable employment.
(3) Every application for registration of a person shall:
(a) be made in such form and manner as the Commission may require and shall contain the following information in respect of the person, namely:
(i) full name;
(ii) name at birth, if it differs from name at the time of the application;
(iii) date of birth;
(iv) place of birth;
(v) mother's full name at birth;
(vi) father's full name at birth; and,
(b) be accompanied by such documents and other information as is sufficient, in the opinion of the Commission, to determine the identity and status of the person.
(4) Subject to subsections (5) and (6), an application for registration of a person shall be made and signed by the person or by his lawful representative or guardian and, where the person is unable to sign his name, he may attest the application by making his mark in the presence of two other persons who shall sign the application as witnesses.
(5) An application for registration of a person who is under 12 years of age shall be made and signed by a parent or legal guardian of the person.
(6) Where an agreement has been made between the Commission and the government of a province providing for the registration at birth of persons born in that province, applications for registration of such persons may be made and signed by an officer designated by the Registrar General of that province.
(7) Where an application is made in accordance with subsection (3) in respect of a person who has not previously been registered, the Commission may register the person and assign a Social Insurance Number to him.
(8) Where a person who is required by law to have a Social Insurance Number is unwilling or unable to complete an application for registration because of religious beliefs or for other reasons satisfactory to the Commission, the Commission may register the person and assign a Social Insurance Number to him, if, in its opinion, the information it has in respect of the person is sufficient to determine his identity and status.
(9) Where an application is made for the registration of a person who is not a Canadian citizen or a permanent resident within the meaning of the Immigration Act, the Commission may require the applicant to show why the person needs a Social Insurance Number and Social Insurance Number Card.
(10) Where the Minister, pursuant to subsection 96(3) of the Immigration Act, directs the Commission to issue to persons, other than Canadian citizens or permanent residents within the meaning of that Act, Social Insurance Number Cards whereby the holders thereof are identified as specified in that subsection, the Commission shall issue to those persons Social Insurance Number Cards bearing numbers beginning with the digit "9".
(11) Where a person who has been issued a Social Insurance Number Card bearing a number beginning with the digit "9" is granted Canadian citizenship or becomes a permanent resident within the meaning of the Immigration Act, the Commission shall, on application, cancel the number previously assigned to that person and, in its place, assign a new Social Insurance Number and issue a new Social Insurance Number Card, both bearing a number beginning with another digit.
(12) Where a Social Insurance Number Card issued to a person has been lost or destroyed, an application may be made to the Commission for a new Social Insurance Number Card.
(13) Where a registered person named in an application for a new Social Insurance Number Card under subsection (12) or under section 109 of the Act is not a Canadian citizen or permanent resident within the meaning of the Immigration Act and has previously been assigned a Social Insurance Number bearing a number beginning with a digit other than "9", the Commission shall cancel that number and, in its place, assign a new Social Insurance Number and issue a new Social Insurance Number Card, both bearing a number beginning with the digit "9".
(14) An application for a new Social Insurance Number Card under subsection (11) or (12) or under section 109 of the Act shall be made in the form and manner required by the Commission and shall contain:
(a) the information and documents required by subsection (3); and,
(b) the Social Insurance Number of the registered person or, if that number is not known, a statement that he previously had a Social Insurance Number.
(15) Every employer who employs a person in insurable employment shall require the employee to produce to him a Social Insurance Number Card within three days after the employee commences his employment.
(16) Subject to subsection (17), every person who becomes employed in insurable employment shall produce his Social Insurance Number Card to his employer within three days after he commences his employment.
(17) Every person who becomes employed in insurable employment before he is registered shall produce his Social Insurance Number Card to his employer within three days after he receives it.
(18) Where an employer is unable to ascertain the Social Insurance Number of a person who becomes employed in insurable employment, the employer shall report the matter to the local office of the Commission within six days after that person commences such employment giving such information as will enable the Commission to determine the identity of the employee.
(19) Every registered person employed in insurable employment who, in accordance with subsection (11) or (13), is assigned a new Social Insurance Number shall produce his new Social Insurance Number Card to his employer within three days after he receives it.
SOR/78-696, s. 1; SOR/82-673, s. 4; SOR/83-490, s. 8(F); SOR/90-761, s. 23; SOR/92-374, s. 1.
PART V
FISHERMEN'S REGULATIONS
Interpretation
74. (1) In this Part,
"buyer" means a person who buys a catch for the purpose of reselling it either in the form in which it was caught or after processing,and not for the purpose of using it as food, feed or bait; (acheteur)
"catch" means any natural product or by-product of the sea or of any other body of water caught or taken by a crew and includes fresh catch, cured catch, Irish moss, kelp and whales but does not include fish scales, and:
(a) where only a portion of a catch is delivered to a buyer, means the portion delivered; and,
(b) where more than one catch or portion thereof is delivered to a buyer at one time, means the catches or portions thereof so delivered;(pêche)
"crew" means any group of fishermen who generally engage in making a catch together or who have actually engaged in making a catch together, and in the case of a single fisherman, "crew" or "member of a crew" as the case may be, means that single fisherman; (équipe)
"cured catch" means a catch that is cured in a form described in Column I of an item of the table to subsection 79(6); (pêche traité)
"employer" means a person designated as the employer of a fisherman pursuant to section 76; (employeur)
"fisherman" means a self-employed person engaged in fishing and includes a person engaged, other than under a contract of service or for his own or some other person's sport:
(a) in making a catch;
(b) in any work incidental to making or handling a catch, whether such work consists of loading, unloading, transporting or curing the catch made by the crew of which he is a member or of preparing, repairing, dismantling or laying-up the fishing vessel or fishing gear used in making or handling the catch by that crew if the person engaged in any such incidental work is also engaged in making the actual catch; or,
(c) in the construction of a fishing vessel for use by himself or by a crew of which he is a member in making a catch; (pêcheur)
"fresh catch" means a catch that is not a cured catch; (pêche fraîche)
"gear" means any specialized equipment, other than hand tools or clothing, used by a crew exclusively in making a catch. (attirail de pêche)
(2) An employer who is engaged in work incidental to a catch that is generally performed on shore shall not, at any time, be regarded as a member of the crew that made the catch. SOR/78-710, s. 7; SOR/83-515, s. 1.
Coverage and Application of Act and Regulations to Fishermen
[SOR/78-710, s. 8]
75. Any person who is a fisherman shall be included as an insured person and, subject to this Part, the Act and any regulations made under the Act apply to that person with such modifications as the circumstances require.
SOR/79-81, s. 6.
Determination of the Employer of a Fisherman
76. (1) For all purposes of the Act and any regulation made thereunder, the employer of a fisherman shall be the person determined as such in accordance with this section.
(2) Where a catch is delivered in Canada to a buyer or to a buyer's agent by a member of the crew that made the catch and, in a declaration made pursuant to section 82, the members of that crew are declared to share in the returns from the sale of the catch, the buyer shall be regarded as the employer of all fishermen who are members of that crew and who share in such returns.
(3) Subject to subsection (5), where a catch is delivered by a member of the crew that made the catch to a person who is not the employer within the meaning of subsection (2):
(a) the head fisherman of the crew; or,
(b) where there is no head fisherman, the agent for selling the catch of the crew shall, if the gross returns of the catch are paid to him, be regarded as the employer of all the fishermen other than himself who are members of the crew.
(4) Where there is a common agent acting at the same time for both the crew and a buyer, that agent shall be the employer of all fishermen other than himself who are members of the crew and shall have the right to recover from the buyer the employer's premiums paid by him.
(5) Where it is established to the satisfaction of an officer of the Department of National Revenue, Taxation, that any person required to make a declaration under subsection 82(1) failed to make the declaration or made it falsely, that person shall be deemed to be the employer of all fishermen other than himself who are members of the crew.
(6) Where a person is the employer of the crew by reason only of subsection (5):
(a) section 77 does not apply to him; and,
(b) notwithstanding subsection 53(4) of the Act, the person is not entitled to deduct, in any manner from a payment of remuneration to any insured person, premiums paid or payable in respect of the members of the crew.
SOR/78-710, s. 9; SOR/90-734, s. 1.
Records to be Kept by Employers
77. (1) The records referred to in section 58 of the Act shall contain, for the purposes of this Part:
(a) all particulars required for determining:
(i) whether premiums are payable by the employer;
(ii) the earnings of fishermen and the proper allocation and recording thereof; and,
(iii) the time of payment of premiums by the employer; and,
(b) all the particulars that are required to be declared under subsection 82(1).
(2) Every employer shall keep and maintain all books, records, accounts and documents in respect of any fisherman of whom he is the employer separately from those he keeps and maintains in respect of other insured persons.
SOR/78-710, s. 10; SOR/90-734, s. 2.
78. (1) The determination of the earnings of a fisherman shall be made only as provided in this section.
(2) The earnings of a fisherman shall, subject to subsection (4), be the amount paid or payable to him in respect of a catch, after deducting the value of any portion of the catch not caught by the crew of which he is a member, and in accordance with the share arrangement as declared pursuant to section 82.
(3) For the purpose of applying subsection (2), the value of any portion of the catch not caught by the crew shall be the amount established by the head fisherman or:
(a) the agent for selling the catch of the crew, where he is the employer; or,
(b) the officer mentioned in subsection 76(5), where the person making the declaration pursuant to section 82 is the employer.
(4) The earnings of a fisherman who is a member of the crew and:
(a) is the owner or lessee of the boat or gear used by the crew in making the catch; or,
(b) employs other persons who are engaged in making the catch under a contract of service shall for any week be deemed to be the greater of;
(c) the amount obtained by deducting from the gross returns of the catch made by the crew the aggregate of the amounts paid or payable to other members of the crew, the wages paid or payable to persons employed under a contract of service who were engaged in making the catch and 25 per cent of the gross returns; and,
(d) 20 per cent of the maximum weekly insurable earnings.
SOR/78-710, s. 11; SOR/78-809, s. 2; SOR/80-576, s. 1; SOR/80-805, s. 2.
79. (1) The earnings of a fisherman shall be allocated only to weeks as determined pursuant to this section.
(2) Subject to subsections (3) to (5), the earnings of a fisherman from a fresh catch shall be allocated to the week in which delivery of the catch is made.
(3) Where the employer of a fisherman is a buyer of a fresh catch, other than of squid, Irish moss or kelp, and has personal knowledge that:
(a) the catch was made on a fishing trip that lasted more than seven consecutive daysl
(b) the person, who regularly each week collects the catches from the crew of which the fisherman is a member, took delivery of a catch in the week next following the week in which he would normally have taken such delivery; or,
(c) a particular delivery of lobsters represents more than a week's catch, he shall with respect to that catch, if that allocation will not result in the earnings of the fisherman in respect of that catch being less than 20 per cent of the maximum weekly insurable earnings, allocate the earnings of the fisherman equally to the week in which delivery is made and the week immediately preceding that week.
(4) Where a fresh catch, other than of squid, Irish moss or kelp, is delivered to a buyer who is the employer of a fisherman who is a member of the crew that made the catch and the employer keeps records sufficient to enable an officer of the Department of National Revenue, Taxation, to determine the period during which the fisherman was engaged in making the catch, the employer shall allocate the earnings in respect of that catch equally among such a number of consecutive weeks that fall either completely or partly during that period as will result in that fisherman's earnings being not less than 20 per cent of the maximum weekly insurable earnings for each of those weeks, the last of those weeks being the week in which delivery is made.
(5) Notwithstanding subsections (3) and (4), where a buyer who is the employer of a fisherman settles his accounts with that fisherman at intervals of more than seven days and any such settlement is in respect of fresh catches that were delivered over a period of more than seven days, the aggregate of the earnings for each of the weeks that fall completely or partly in that period in which the earnings of that fisherman are equal to or greater than 20 per cent of the maximum weekly insurable earnings may be allocated by the employer equally among those weeks.
(6) For the purpose of allocating the earnings of a fisherman from a cured catch described in Column I of an item of the table to this subsection, the following rules apply:
(a) the portion of the catch attributed to each member of the crew shall be determined by dividing the total quantity of the catch by the number of persons in the crew;
(b) the number of weeks of employment of a fisherman who is a member of the crew shall be determined by dividing his portion of the catch determined pursuant to paragraph (a) by the appropriate divisor set out in Column II of that item; and,
(c) the weekly earnings of a fisherman shall be determined by dividing his total earnings from the catch, determined pursuant to section 78, by the weeks of employment determined pursuant to paragraph (b).
| Column I | Column II |
| Nature of Cured Fish | Divisor |
| 1. Salted groundfish: (a) Extra dry (Gaspe cure) (b) Dry (including slack or light salted and heavy salted) (c) Semi-dry (d) Ordinary cure (e) Wet salted |
2 cwt 3 cwt 4 cwt 5 cwt 6 cwt |
| 2. Smoked herring (bloaters),including hard-cured smoked round herring | 270 lbs. or 15 boxes of 18 lbs. each |
| 3. Pickled mackerel, whether split or not, excluding fillets, pickled herring excluding fillets but including gibbed mild-cured herring (Scotch type), drawn pickled herring, whether lean or fat, and dressed herring marinated in vinegar | 3 barrels or 660 lbs. |
| 4. Pickled turbot, pickled filleted mackerel, pickled filleted herring and marinated filleted herring that has the skin on or off | 2 barrels or 440 lbs. |
| 5. Pickled alewives including any salted alewives | 6 barrels or 1,320 lbs. |
| 6. Pickled salmon and pickled trout | 1 barrel or 220 lbs. |
| 7. Other pickled products, including any other fish product cured by a fisherman before being sold | 3 barrels or 660 lbs. |
| 8. Cod oil | 5 drums or 225 gals. |
| 9. Cod livers | 15 drums or 675 gals. |
(7) Weekly earnings determined pursuant to subsection (6) shall be allocated by the employer of a fisherman to the number of weeks of employment determined pursuant to paragraph (6)(b), the first allocation of earnings from the catch being to the week in which that catch is delivered and the remaining allocation from that catch to those immediately preceding weeks to which earnings equal to or greater than 20 per cent of the maximum weekly insurable earnings have not previously been allocated by that employer.
(8) Where the result of the calculation described in paragraph (6)(b) contains a fraction, that fraction shall be taken as one if it is or more and shall be disregarded if it is less than.
(9) Where a cured catch consists of several types of fish and more than one of the divisors set out in the table to subsection (6) has had to be applied pursuant to paragraph (6)(b) to determine the number of weeks of employment of a fisherman, the number of weeks of employment is equal to the aggregate of each determination made under paragraph (6)(b).
(10) Where, as a result of a calculation made pursuant to subsection (6), the weekly earnings of a fisherman are less than 20 per cent of the maximum weekly insurable earnings, the number of weeks of employment determined pursuant to paragraph (6)(b) shall be reduced to such an extent that his weekly earnings in respect of that reduced number of weeks equal or exceed that amount.
(11) [Revoked, SOR/83-515, s. 2].
(12) [Revoked, SOR/84-214, s. 1].
(13) Where a cured catch consists entirely of wet salted groundfish and subsection (4) would, if the catch were a fresh catch, apply, the catch shall be regarded as a fresh catch for the purpose of subsection (4).
(14) Where a fresh catch is delivered at the same time as a cured catch to which subsections (6) to (10) apply, the earnings to be allocated in respect of the fresh catch shall be allocated before the earnings in respect of the cured catch.
(15) Every week to which earnings have been allocated under this section in respect of a fisherman shall be regarded as a week of employment notwithstanding that the fisherman did not work in that week.
SOR/78-710, s. 12; SOR/79-81, s. 7; SOR/79-572, s. 1; SOR/80-805, s. 3; SOR/83-515, s. 2; SOR/84-214, s. 1; SOR/87-614, s. 11(F); SOR/89-192, ss. 1, 2; SOR/94-445, s. 1(F).
