CUB 37627
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim for benefit by
Carol LEEMING
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given in
Sarnia, Ontario, on July 4, 1996.
CORRESPONDING FEDERAL COURT DECISION: A-416-97
DECISION
CULLEN, J:
The Commission informed the claimant on April 12, 1996 that she had been approved for receipt of maternity and parental benefits effective March 24, 1996. The Commission also informed the claimant on April 12, 1996 that because she had indicated that she had a farm, any farm proceeds/income is determined to be earnings and as such these monies must be reported on her bi-weekly report cards. The Commission advised the claimant that she must report 15% of the gross earnings regardless of the actual operating expenses, including federal and provincial government subsidies.
The claimant owns 50% of the farm. She states that she is not self-employed in farming but an investor in the farm operation. Nevertheless, the Commission required that she report 15% of the gross farm earnings, and as a result did not receive U.I. maternity and parental benefits.
The claimant appealed the decision to the Board of Referees ("the Board"). The Board concluded that the claimant's farm income was correctly determined to be earnings and consequently those earnings were properly allocated within the meaning of paragraph 57(2)(6) and of subsection 58(7) of the Unemployment Insurance Regulations. The Board unanimously dismissed the appeal and upheld the decision of the insurance officer.
The Board supplied a detailed analysis of the facts of the case. It decided that the claimant, as a 50% owner, had the potential to receive income from the farm and had reinvested these monies of her own choice.
I do not agree with the findings of the Board, as I cannot accept that the claimant is self-employed in farming, within the meaning of paragraph 57(6)(b) of the Regulations. The claimant is employed, full-time, away from the farm. From time to time, she puts in an insignificant amount of time (about 12 hours or less per year) doing the farms' books. The claimant's husband takes care of the day-to-day operations of the farm. If the husband is away for the day, then the family must pay for someone to do the farm-work, as the claimant, being employed full-time and also responsible for the care of her family, cannot do it. Given these facts, I cannot find that the claimant's involvement in the farm is so major in extent so as to be considered self-employment in farming within the meaning of paragraph 57(6)(b). 1
Counsel for the respondent undertook to investigate what the Commission's policy is concerning off-farm workers with no active involvement in the farm. This issue arose as the result of reported comments from one Rick Jackson, an insurance adviser with Human Resources Development Canada. Counsel advises me that it is indeed the Commission's policy to consider a claimant's income from a farm not to be earnings for benefit purposes, if they are not active on a regular basis in its operations. However, where a claimant works on a regular basis, even if only for a few hours, the income will be allocated against their claim.
It is clear, from the facts, that the claimant, although part-owner in title of a farm, is not self-employed in farming, and does not work on the farm on a regular basis. Her activities vis-a-vis the farm are that of a concerned investor.
Given the foregoing, the Board made errors of fact and law, and the claimant's appeal is granted pursuant to paragraphs 80(b) and (c) of the Unemployment Insurance Act.
B. Cullen
UMPIRE
OTTAWA, Ontario
April 7th, 1997