CUB 26139

FRANÇAIS

The claimant is appealing a decision of the Board of Referees, which upheld four decisions of the Commission in which disentitlement to benefits was imposed on the claimant because she had not proved that she had had an interruption of earnings. The Commission also assessed four penalties against the claimant, totalling $9,379, for having made several false or misleading statements. The Board of Referees also upheld these decisions of the Commission. The claimant submits that the Board of Referees committed errors in law and improperly assessed the evidence on the record.

The claimant, who worked as a sales clerk in a shop belonging to her mother, alleged that she was laid off on December 31, 1988. She claimed unemployment insurance benefits, and received them. In reality, her common-law spouse, Serge Tremblay, acquired this business on January 4, 1989 and incorporated it. According to a subsequent Record of Employment, the claimant resumed work in June 1989, and was again laid off on December 23, 1989. The same situation occurred again in 1990 and in 1991, with the claimant alternating between periods of lay-off and rehiring with the same employer.

In the course of an investigation conducted in 1992, the Commission learned that since the acquisition of the shop by her common-law husband on January 4, 1989, the claimant had in fact never stopped working there, most of the time as the only employee, carrying out all the tasks essential to running a shop. All these facts were admitted both by the claimant and by the sole shareholder of "Boutique TravailBou Inc.", Serge Tremblay. The claimant stated that during the long periods without pay shown on the payroll records, she did volunteer work, as the financial position of the business did not allow for paying her a salary.

Having made an exhaustive study of the evidence, the Board of Referees confirmed the Commission's decision, holding that the claimant had never experienced an interruption of earnings and that she had knowingly made false and misleading statements in claiming unemployment insurance benefits.

Despite the representations of counsel for the claimant, according to whom the payroll records of this duly incorporated business clearly establish that there were periods when the claimant was not paid, I believe that no error of fact or law has been proven that would justify the intervention of the Umpire.

The principle is firmly established in law that to receive unemployment insurance benefits, a person must be unemployed and must have had an interruption of the earnings from his or her employer. Section 37.(1) of the Unemployment Insurance Regulations stipulates that an interruption of earnings occurs when, following a period of employment with an employer: 1) an insured person has a lay-off or separation from that employment, and 2) has a period of seven or more consecutive days during which no work is performed for that employer and 3) no earnings that arise from that employment are payable or allocated. As the Federal Court of Appeal stated in Enns (A-559-89), these are separate conditions, and "the fact that he (the claimant) was not being paid, while it might be evidence of a lay-off or separation, cannot be conclusive..." In the present case, the claimant clearly does not meet these three conditions.

Furthermore, counsel for the claimant rightly did not argue that the work performed by his client without pay amounted to volunteer work. The claimant was clearly not disinterested where the success of her husband's business was concerned, and in this sense one cannot speak, in this case, of genuine volunteer work, which according to the definition it has been given in the case law must be truly disinterested.

As far as the penalties are concerned, even though the decision of the Board of Referees on this matter is very short, the evidence on the record is sufficient to show that the claimant knowingly made false or misleading statements in answering question 1 on the back of her benefits claims by saying that she had not worked during the period covered by these statements, when she was in fact working regularly.

For these reasons, the claimant's appeal is dismissed.

UMPIRE