CUB 25211
IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF a claim for benefits by David LAGASSE
- and -
IN THE MATTER OF an appeal to the Umpire by the
Commission from a decision of the Board of Referees given
at Winnipeg, Manitoba, on May 28th, 1992.
D E C I S I O N
THE HONOURABLE A.H. HOLLINGWORTH, Q.C.:
The Commission appeals under Section 80(b) and (c) which read as follows:
Sec. 80. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
The Commission appeals from the decision of the Board of Referees, which reversed the Commission. The Commission, pursuant to Exhibit 1, found that the claimant could not receive benefits because he had not proven that he was unemployed. "Payment of benefits was suspended from February the 24th, 1992 and for as long as this condition continues."
The claimant is an enterprising young man who held at least two jobs. In the first place, he owned Dave's Furniture which was in Powerview, Manitoba, about eighty miles north east of Winnipeg, and I understand also has a branch in Winnipeg. He had owned it for five years as of February of 1992. He also worked in a gas station called Pineview Shell as recorded on Exhibit 2-1 (the Board of Referees referred to it as Powerview Shell). He did not own this establishment, but just worked there.
On February the 16th, 1992, he incurred an injury when he was "playing sports" and stopped working at both places, for what period he could not say, but he was on crutches for a period of time, and he had trouble seeing a doctor to get the required surgery for his knee. He said he did not apply for benefits, but the record show that he did apply on February the 27th, 1992, shortly after he received his injury. The Board of Referees, in yet another confusing decision, stated that he was able to collect unemployment insurance benefits and simply said, inter alia, "the commission has failed to prove to the Board that the claimant was self-employed while collecting unemployment insurance benefits, the appeal is allowed." Apparently, the Board stated because he spent no time for a short period at the store whatsoever, that he was able to collect unemployment Insurance payments, but did not consider the criteria set out in Schwenk, CUB 5454. It is necessary to consider, in this connection, Regulation 43(l) and 43(2) which read as follows:
Sec. 43(l). 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 ... he shall be regarded as working a full working week.
Sec. 43(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.
In CUB 9433, Madame Justice Reed wrote, at pages two and three:
...under Regulation 43, it is not sufficient to find that a claimant was employed in an employment in which he controlled his own working interest. The Board must also determine whether the employment was so minor in extent that a person would not normally follow it as a principal means of livelihood. If the employment was of this nature, then the claimant is not disqualified from being employed and is still entitled to benefits.
In CUB 10601, Wong, and CUB 13687, Hepner, Reed, J. held that it was an error in law on the part of the Board not to consider whether the self-employment is minor in extent. In CUB 5454, Schwenk, Dubé, J. identified the factors which should be considered in determining whether the self-employment in question was so minor in extent that a person would not normally follow it as a principal means of livelihood, unless the provisions of 43(2) have been satisfied, as follows:
(1) time spent
(2) the capital and resources used
(3) the financial success or failure of the enterprise
(4) the continuity of the enterprise
(5) the nature of the employment -- is it the type of business which would normally occupy the claimant?
(6) the willingness of the claimant to accept or seek other employment.
Dubé, J. held that no one factor was conclusive, rather, all the factors should be considered together. This test has been accepted in other CUBs: see Wong, supra, in CUB 11510. In this case, applying the criteria as set out, in considering whether the employment was "minor in extent":
(1) Time Element:
Forty hours per week is considered an appreciable amount of time spent in the business operation.
(2) The Capital and Resources Invested:
The amount of money he invested, $20,000.00, would normally demonstrate an attempt to make such an- endeavour profitable.
(3) The Financial Success or Failure:
He indicated that last year's gross returns were $87,000.00, which clearly supports the belief that the claimant's used furniture operation constituted his principal means of livelihood, especially when it is compared to the income earned from his part-time employment, that of working at a gas station.
(4) The-Continuity of the Enterprise:
The claimant has been the owner of the business for the past five years, which demonstrates a definite continuity in the business and a certain financial success.
15) The Nature of the Employment:
The nature of the employment performed is different from his part-time work. His gross return from last year, $87,000.00, clearly shows that it is his principal means of livelihood.
(6) Willingness of the claimant to Accept or Seek Other Employment:
If the claimant had not been incapacitated, he would have continued to work nights at his part-time employment and to work days at his main business.
As I have indicated, the Board, in its decision, awarded him benefits on the basis that he did not work during his period of incapacitation, but failed to note that his enterprise was such that it still operated as a going concern and a profitable concern during his time away from the business. The evidence does not say that he did not receive any money during his absence because of this sports injury, and it may be assumed that he was still taking out money from his enterprise.
The Board made a clear error in law in not considering the criteria laid down in Schwenk. The only point they really talked about was time, and drew the conclusion that he was unemployed because he did not work at the business for a short period after his injury, which length of time we do not know. The decision of the commission is affirmed, the Board of Referees is reversed, and the appeal is allowed.
UMPIRE