CUB 25285
IN THE MATTER of the Unemployment Insurance Act, 1971
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IN THE MATTER of a claim for benefit by
E. BURKLEY HUNTER
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IN THE MATTER of an appeal to the Umpire by the
Commission from a decision of the Board of Referees,
given at Brandon, Manitoba on September 8, 1992
DECISION
THE HONOURABLE A.H. HOLLINGWORTH, Q.C.
This is an appeal to the Umpire under Section 80 of the Unemployment Insurance Act stating that the Board of Referees, which reversed the Commission, had made an error in law and an error in fact in reversing the Commission. The Commission in Exhibit 1 disallowed the request for benefits by the claimant stating that he was self-employed as a farmer during the farming season. It went on to say that:
"The season runs from the first Sunday following March 31st to the Saturday before the week in which October 1st falls each year as a claimant must be unemployed to be eligible for benefits, you cannot receive benefits for any part of this period. Your benefits are suspended from June 29, 1992."
The claimant was a school bus driver for the Duck Mountain School Division and received according to Exhibit 3 the sum of $6,676.00 as a bus driver.
He filed by Exhibit 4 a farm questionnaire which states that his total acreage of the farm was 2,500 acres and that his farm equipment consisted of 2 old caterpillars, 5 old tractors, hay equipment old to modern, a full line of same and "a fair line of older tilling equipment", and finally, no combine. He did not raise any cattle and operated what was in effect a hay farm with the help of his two sons. He said they were in the process of buying out his share "when funds and finance are available" but apparently nothing further has transpired in this direction. He indicated his 1991 income was $35,000.00.
On August 25, 1992, the Commission made contact with the claimant to clarify further his farming activities and the following information was obtained:
(1) he had purchased 100 steers under a farm loan and upon being unable to pay it, he had to sell the steers and he still owes $3,000.00 on that loan;
(2) he thinks the 1,502 acres of the Crown land aside from his own 1,503 acres are under his name and his sons' names;
(3) his sons own the cattle on the farm, that is, 25 cows and 20 calves;
(4) he rents a small portion of his farm for someone's horses and someone else's cows;
(5) he obtained a loan to purchase the 160 acres indicated in his previous letter (see Exhibit 5-3) where it was stated that he and his two sons own those acres when in fact he is the sole owner (see Exhibit 8).
On August 27, 1992, the Commission made contact with the Agricultural Employment Services who indicated that this year's haying has been slower than usual as a result of the wet weather. On an average, the farmer is able to do 100 acres of hay per week depending on the weather and the size of the machinery. In their opinion, 1,000 acres of hay is considered a major operation which would require more than one worker and would definitely keep three people very busy (see Exhibit 9).
The Commission submits that the Board erred in law and made an erroneous finding of fact when it decided that the claimant was not self-employed as a farmer during the farming season, and furthermore, that they did not employ the factors cited in Schwenk, CUB 5454, when considering whether or not self-employment was to be regarded as minor in extent.
It is clear that the claimant's operation is really that of a hay farm and that particularly in 1992 with the wet season, it would take more than two people to harvest the crop. We understand from claimant's submissions that his two sons do the bulk of the work on the farm but the fact that he has not any history of full-time employment during the farming season for the past 18 years, excepting his school bus driving job, and the fact that he had no history of full-time or part-time employment during July and August, all these factors indicate that his farming contribution is not minor in extent within the purview of the Unemployment Insurance Regulations.
I therefore find that the Board has made an error in law and an egregious error in facts resulting in an error in law and that the appeal should be allowed, and I accordingly do so.
Umpire