CUB 9973
Claimant: Denis THIBEAULT
Appellant: Commission
DECISION
YVON PINARD, UMPIRE:
At issue here is the application of Subsection 42(2) of the Unemployment Insurance Regulations:
"(42)2) Notwithstanding Section 44, a claimant who is employed in agriculture or horticulture shall be regarded as having worked a full working week during any week in which he works
(a) not less than 5 days; and
(b) not less than 40 hours in the aggregate.
In the first place, the Commission officer made the following decision on October 20, 1982:
"With respect to the information provided in relation to your claim for benefit, you have failed to prove you were unemployed in the meaning of Sections 19 and 21 of the Act. You worked five days, forty hours or more weekly as an agricultural (or horticultural) worker. Under the terms of Subsection 42(2) of the Regulations, you are regarded as having worked a full working week. Therefore you do not qualify for benefit from July 12, 1981 to October 30, 1981."
The Board of Referees subsequently overturned this decision on the following ground alone:
It appears to the Referees that the work done by the claimant at his father's place did not exceed the help a son may normally be expected to give his parents as his filial duty.
In his statement of February 11, 1982 before the representative of the Canada Employment and Immigration Commission, the claimant admitted that, from July 11, 1981 to October 31, 1981, he worked on his father's farm full-time, forty-eitht hours a week on average. Furthermore, the claimant's father, in a statement before the Commission representative on October 12, 1982, affirmed that when his son worked elsewhere but lived at home, he paid board; however, when the son was not working, he lived at home and his board was either decreased or eliminated, "since he helps out when work has to be done".
In CUB 1785, the Umpire stated:
"The record shows that the claimant received free room and board at his home on the condition that he would "help out" in his father's shop, that he would look after the books and act as a general handyman. In fact, he stated "... I do not have to pay room and board at home so long as I help out at the shop". This, in itself, constitutes evidence that a contract of service existed between the claimant and his father."
In CUB 4367, which dealt with a son who turned down a job and stated he was working full-time in helping his father on his farm, Marceau, J., wrote:
"On one hand, although I recognize that there may be a filial duty for a son to help his father, it nevertheless seems to me that the referees in this case may very well have decided that the claimant was going far beyond filial duty and that his availability was too doubtful." Marceau, J., upheld the decision of the Board of Referees in CUB 4367, to the effect that the claimant disqualified for benefit because he was regarded as having worked the full working week of the farm."
In my view, therefore, the Board of Referees should have applied Subsection 42(2) of the Regulations with respect to the material before it. The Board of Referees based its decision on an erroneous finding of fact that it made without regard for the material before it, in particular, the above statements by the claimant and his father. These statements show that the claimant worked on his father's farm full-time, some forty-eight hours weekly; in return, he received room and board from his father. Therefore the claimant was not unemployment in the meaning of the Act and the Board of Referees should have upheld the Commission officer's decision of October 20, 1982.
The appeal is therefore upheld, the decision of the Board of Referees overturned and the Commission officer's decision of October 20, 1982 upheld and reinstated.
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UMPIRE
Dated January 18, 1985