"TRANSLATION" 

J. JEROME: UMPIRE:

The Commission appeals pursuant to paragraphs (b) and (c) of section 95 of the Act (now section 80) from a majority decision of the board of referees allowing the claimant's appeal and ruling him to be eligible for unemployment insurance benefits from July 15, 1989 under section 43(2) of the Regulations.

  On June 27, 1989 the claimant made a claim for benefit, which took effect on June 25, 1989. On July 13, 1989 the Commission informed him that he was not eligible for unemployment insurance benefits because he was a farmer and was not accordingly unemployed under section 10 of the Act and section 43 of the Regulations. This decision was upheld by the Commission on July 26, 1989 after it had obtained further information from the Office du crédit agricole du Québec. 

Since the claimant was not satisfied with this decision, he informed the Commission of his intention to appeal to a board of referees. He felt that he was not a full-time farmer since the Office du crédit agricole du Québec had allowed him to work part time away from the farm. Moreover, he alleged that he had made an error in his request for a loan in stating that he was a producer when he felt that he was a cattle producer and this gave him the right to work away from the farm. 

On August 24, 1989 the board of referees held that the claimant had devoted very little time to his farm since July 15, 1989 because his herd of cattle required only two or three hours of work per day and he was accordingly eligible for unemployment insurance benefits from that date. One member of the board of referees dissented. 

A reading of the record shows that the Commission's argument is valid and that the appeal must be allowed. However, I should repeat the major facts in the case to cast light on my reasons for this decision. 

The claimant left his full-time employment as an inspector with La Corporation paroisse Notre-Dame-de-la-Paix in April 1989 in order to obtain an agricultural loan of $40,000 and an establishment grant from the Office du crédit agricole du Québec. Before he could obtain this loan he was asked to provide a letter certifying that he had left his full-time employment. Furthermore, he signed a contract as a farmer declaring that farming was his principal means of livelihood and his main occupation. However, he was allowed to work part time to help make ends meet. 

In fact, the claimant operated a farm of 250 acres with 54 head of cattle. He was the sole proprietor of the farm and he alone was responsible for the haying, maintaining the fences, feeding the animals and supervising the births of calves. 

The claimant held a position as a part-time school bus driver from April 24 to June 23, 1989 with Autobus du Village Inc. He left this employment because of a lack of work and waited until July 25 of that year before looking for other work, although he was unsuccessful. 

First, it should be noted that the expression "agriculture" includes cattle breeding. As Denault J. notes in Hotte (CUB 10262): 

It must therefore be concluded that the claimant is a farmer under the Act; he is accordingly presumed not to have been unemployed during the period from March 31 to October 1 under subsection 43(3) of the Regulations. 

However, the board of referees decided that the claimant was subject to the exception in subsection 43(2) of the Regulations since he devoted only two (2) or three (3) hours of work a day to his herd of cattle. In fact, a farmer could be unemployed if the work on his farm did not take up too much of his time (Ethier, CUB 13528).

However, the fact that the claimant had devoted little time to his farm since July 1989 did not mean that he did not regard this employment as a principal means of livelihood. The capital and other resources invested, the on-going operation of the business, the nature of the employment and the claimant's wish to accept other employment are all factors to be taken into account (Schwenk, CUB 5454). 

In the instant case the claimant elected to invest in his farm and obtained a farm loan for this purpose. He left his full-time employment to obtain this loan and signed a contract as a farmer that required him to devote most of his efforts to farming. He was also the sole owner of the farm and he did the work. It appears that he intended to continue to operate the farm and that the income from his part-time employment must be considered additional income complementary to that from his primary occupation, farming. As was noted by Smith J. in Rossnagel (CUB 8064): 

The Commission's decision was in accordance with the existing case law, in particular Rossnagel (CUB 8064) and Doerksen (CUB 13148). The board of referees erred in law and in fact in overturning this decision. 

For these reasons the appeal is allowed.

  CHIEF UMPIRE