CUB 5560
TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER of a claim for benefits by
Françoise SAMSON
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given in
Lévis, Quebec, on November 9, 1978.
CORRESPONDING FEDERAL COURT DECISION: A-341-79
DECISION
ADDY, J.:
In June, July and August of 1978, the appellant worked for "Humpty Dumpty Foods Ltd.", a business belonging to her brothers.
During that period she regularly performed various administrative tasks, working as an accounting clerk, personnel clerk, translator, secretary and so on. At the time, she was recovering from a nervous breakdown and did not receive any remuneration for her services. The majority of the Board of Referees concluded that she was working as a form of therapy, in spite of the fact that she was working for a company for a normal working week, except for a few occasions when she was absent.
Basing its decision on these conclusions, which are confirmed by the evidence, the majority of the Board of Referees, in accordance with the provisions of sections 21(1) of the Act and 155(1) of the Regulations, decided that during the entire period in question, the appellant was working a full working week within the meaning of these sections and that she was therefore not employed.
The said sections read as follows:
ACT: Sec. 21 (1) A week of unemployment for a claimant is a week in which he does not work a full working week
REGULATIONS: Sec. 155.(1) A working week of a claimant, other than a claimant referred to in section 154, is a number of hours, days or shifts normally worked in a calendar week by persons in his grade, class or shift at the factory, workshop or other premises at which he is or was employed.
It was obvious that the claimant was not self-employed. If a claimant who works for an employer is to be considered employed within the meaning of the Unemployment Insurance Act and specifically within the meaning of the above two sections, it is absolutely essential that an employer-employee relationship exists between the employer and the person receiving his services. This type of relationship necessarily implies that during or subsequent to employment, remuneration is payable to the employee by the employer for services rendered or, at least, the employee must tender his services for the specific purpose of eventually receiving remuneration, or monetary or material benefit of some kind from his employer. Such benefit could be the hope of obtaining regular paid employment from his employer in the future. In short, a person who works for another person strictly without remuneration is not employed within the meaning of these sections although he may be working regular hours performing tasks for which wages would normally be paid.
I came to this conclusion despite the decision in CUB 2446 (dated December 4, 1964) which seems to state the opposite. The decision reads as follows:
HELD: that as, during the period in question, the claimant's work without pay was an employment for which a remuneration is ordinarily paid and as he worked the full working week, he had failed to prove that he was unemployed (section 57 (1) of the Act and Regulations 155).
I wish to note that the evidence accepted by the Umpire in this CUB included the following statement from the claimant:
... without any salary, as I am trying to increase the business before November 15, 1963. If I reasonably succeed, I shall see whether the owner is able to pay me a salary or if I can operate the business on my own account.
According to the facts, it seems clear in CUB 2446 that there was expectation of some kind of monetary gain or subsequent remuneration as a direct result of the employment in question, and that consequently, the principle of law set forth in the decision was far more general and more absolute than required to settle the question at issue.
In any event, I do not agree with the decision as it is set out.
In this case, it is clear that in addition to not receiving or not being entitled to any remuneration, the appellant did not entertain any hopes of obtaining subsequent employment at the Humpty Dumpty company. She worked without remuneration and only for the purpose of getting a fresh start, acquiring experience and for the benefit to her mental and physical health of being usefully occupied instead of remaining idle and perhaps aggravating her state of depression. In other words, it was work as a form of therapy, to quote the Board of Referees.
The Board of Referees therefore erred in law in its interpretation of sections 21(1) of the Act and 155(1) of the Regulations and in the application of these two sections to the conclusions set forth by the majority of the Board. The appeal will therefore be allowed and the Board of Referees decision quashed.
However, since the Board of Referees decided that the appellant was not unemployed, it did not examine the question of her availability.
It is quite possible that in the circumstances, the appellant was not able to obtain employment because of her physical, mental or psychological condition or that she would not be able to prove to the Board of Referees satisfaction that she was available. It now falls to the Board to settle this question.
The case is returned to the Board of Referees to settle the question of the claimant's availability during the period at issue and to decide whether she was entitled to benefits during this period.
When a case is returned to a Board of Referees to be heard again, preferably and, insofar as possible, the case should be heard and decided upon by the same Board of Referees before which it was heard the first time.
George Addy
UMPIRE
OTTAWA
April 27, 1979