CUB 11634

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The task before us is to consider the application of section 43 of the Unemployment Insurance Regulations: 

43(1) 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 

(b)employed in any employment other than that described in paragraph (a) in which he controls his working hours, 

he shall be regarded as working a full working week. 

(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. 

(3)  Where a claimant is employed in farming and subsection (2) does not apply to his employment, he shall not be regarded as working a full working week at any time during the period that begins with the week in which October 1st falls and end with the week in which March 31st falls, if he proves to the satisfaction of the Commission that during that period, 

(a)he did not work; or 

(b)the work he performed was so minor in extent that it would not have prevented him from accepting full-time employment. 

First, the officer of the Canada Employment and Immigration Commission, by virtue of decisions dated May 14 and May 25, 1984, disqualified the claimant from receiving benefits on the ground that he was operating a farm on his own account and that he had therefore not demonstrated that he was unemployed. It is important to relate the essential aspects of these two decisions: 

You have not demonstrated that you were unemployed within the meaning of sections 19 and 21 of the Act. You were operating a farm by the name of "Ferme Breault & Frères Inc." on your own account. According to subsection 43(1) of the Regulations, you are regarded as working a full working week. You are therefore not eligible for benefit, from December 12, 1982 to March 19, 1983, and from November 20, 1983 to December 10, 1983. 

You have not demonstrated that you were unemployed within the meaning of sections 19 and 21 of the Act. You operate a farm by the name of "Ferme Breault Inc." on your own account. According to subsection 43(1) of the Regulations, you are regarded as working a full working week. You are therefore not eligible for benefit, effective December 11, 1983, as long as you do not demonstrate that you are unemployed. 

On July 10, 1984, the board of referees decided to uphold both decisions rendered by the Commission's officer. There is no reason to reproduce the board of referees' lengthy decision here; however, a reading of that decision shows clearly that although the board of referees explained why it concluded that the claimant was employed as described in subsection 43(1) of the Regulations, it gives absolutely no consideration to the exception cited by the claimant and set out in subsection (3) of the same section. 

As a question of fact, it is clear that during the period in question, from December 12, 1982 to March 19, 1983, from November 20, 1983 to December 10, 1983 and from December 11, 1983 to March 31, 1984 at the latest, the claimant performed only minor work for the farm which he operated in a co-adventure within the meaning of subsection 43(1) of the Regulations. It was the off-season, and judging from the duties that he was used to performing, his work was limited to removing the snow from the farm road. 

Moreover, although it is true that the claimant owned 25 per cent of the farm, that the farm's gross income for 1982 was $318,160, that the farm's market value was estimated at $748,000, and that each of the four shareholder brothers had had to personally back the loans already taken out, the fact remains that, since 1976, the claimant had not worked anywhere else but in farming and that, since the "Ferme Breault & Frères Inc." had been incorporated in 1981, he had not worked anywhere but on the farm. He lived there and was responsible, along with one of his brothers, for maintaining the machinery, seeding, ploughing and harvesting. During the off-season, he was virtually idle. On the basis of these facts, one must conclude that the claimant could not benefit from the exception in subsection 43(2) of the Regulations, because, since 1976, and more specifically since the incorporation of the family farm in 1981, farming had been his only means of livelihood; the work he performed each year for the "Ferme Breault & Frères Inc." farming business was therefore sufficiently major in extent that the claimant could normally follow it as a principal means of livelihood. 

On the other hand, I am of the opinion that paragraph 43(3)(b) of the Regulations must apply in favour of the claimant in this case. Subsection 43(3) applies in favour of a claimant who is employed in farming and who does not manage to benefit from the more general exception in subsection 43(2); he must also demonstrate that, during the period that begins with the week in which October 1st falls and ends with the week in which the following March 31st falls, he did not work or that the work he performed was so minor in extent that it would not have prevented him from accepting full-time employment. This is the case here: the claimant was therefore not regarded as working a full working week and was unemployed within the meaning of the Unemployment Insurance Act and Regulations. 

Because the decisions, both that of the board of referees and those of the Commission's officer, dealt only with the question of the state of unemployment and not with the claimant's availability, I think it appropriate for me to uphold the appeal and simply set aside the decision of the board of referees, dated July 10, 1984, and the decisions of the Commission's officer, dated May 14, 1984 and May 25, 1984.