CUB 15700
Dated August 31, 1988
Claimant: Fabienne LEVESQUE
Appellant: Claimant
DECISION
JEAN-EUDES DUBE, UMPIRE:
Six decisions of the Commission dated July 17, 1987 are distributed between two different appeals and were upheld by two decisions of a board of referees dated October 7, 1987.
These decisions were to the effect that this claimant was not entitled to benefit because she did not prove that there was an interruption of earnings, she was still working for the same employer and she received $3O per week "in board and lodging". A last decision ruled that the claimant was not available since she was on vacation from January 26 to February 17, 1986. This multiplication of the proceedings by the Commission did not simplify the board's task and had the effect of considerably complicating that of the Umpire.
However, the essential facts are not complicated. The claimant’s employer is a farmer and she worked for him as a housekeeper. There was a fire on the farm and the employer's wife, who was pregnant at the time, could not perform her usual tasks: that is when the employer hired the claimant. Once the period of need had ended, the claimant wanted to stay on the farm. She performed various duties to earn her board. Moreover, the farmer wished to retain her services for the future and he was therefore very happy to keep her under his roof.
The arguments of counsel for the claimant were accordingly to the effect that she was employed when she received a salary but was unemployed for the rest of the year. The following two paragraphs of one of the board's decisions clearly reflect its interpretation of the situation:
During the investigation of her employer, Mr. Vincent Dionne confirmed to the investigator that, following an agreement, the claimant agreed to continue to board with him and to cover the cost of her board she was to continue to do a few hours per week and she determined her own hours of work.
It is also necessary to establish the claimant's total income from all employment, section 57(d), the value of the board in all cases and any other benefit granted to the claimant in respect of her employment by her employer or on his behalf. Concerning the allocation of a claimant's income, the provisions of section 58 are quite specific.
The following two paragraphs from the other decision should also be reproduced:
At the interview on August 21, 1986 Vincent Dionne, who was the employer, said that the claimant would no longer be on salary from September 28, 1985, but that she would pay for her board by doing a few hours' work each week and that she determined her own hours of work. This statement was confirmed by the claimant.
Although the claimant said that she had worked for a few hours, there never was a break with her employer. Thus, the claimant did not prove to us that she was without work for seven (7) consecutive days and there was accordingly no interruption of earnings from September 29, 1985 to January 24, 1986. Nor did she prove that she was available for work during the period from January 26 to February 7, 1986, when she was on vacation.
In my view, the board of referees did not render an erroneous decision and did not base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, under section 95 of the Unemployment Insurance Act, 1971. On the contrary, the documents in the record and the case law on this subject allowed it to render the two decisions it rendered.
Contrary to the argument of counsel for the claimant, the presumption in section 43 of the Unemployment Insurance Regulations that a self-employed person working in farming is not deemed to work between October 1 and the following March 31 does not apply since the claimant cannot be considered to be self-employed.
It should also be noted that paragraph 57(6)(d) of the Regulations provides that the value of board and living quarters constitutes earnings within the meaning of the Act.
In any event, the lack of earnings alone cannot determine definitively that the claimant did not work a full working week within the meaning of the Act (CUB 5444) in A.G. Canada v Samson, A-341-79 the Court of Appeal stated the following:
…it seems to us that a person may do work for others within the meaning of section 21 although he is not paid if there is between the person doing the work and the person who benefits therefrom a relationship that is similar or comparable to that arising from a contract of service.
I cannot accordingly find that the board erred in finding, in the final analysis, that the employer-employee relationship continued over the years, since the claimant performed more or less the same duties as a farm hand in the employ of the same employer when she was paid and when she was not.
Two passages from decisions of Denault and Walsh JJ. are very relevant to the instant case
CUB 9652, Denault J.:
In the wording of section 37 of the Regulations Parliament has indicated that it is not the date of the interruption of earnings that is important or the date of the last pay cheque. In reality, an employee is considered to have suffered an interruption of earnings when he ceases to be employed by his employer and has not worked for this employer for at least seven consecutive days.
CUB 5892, Walsh J.:
In reality he was still in the same job, although there was less to do in the winter. He was not dismissed nor did he cease to be in the service of his employer within the meaning of section 2(2)(n) of the Unemployment Insurance Act and there was no period of seven consecutive days without any work.
The decision concerning the claimant’s vacation was that she did not conduct any job searches during this period (Exhibit 5). In any event, given the fact that she was not unemployed, the claimant cannot be ruled to be entitled to benefit during this period.
Consequently, these two appeals from two decisions of a board of referees concerning six decisions of the Commission cannot be allowed.
UMPIRE