Date: 20010606
Docket: A-104-00
Neutral reference: 2001 FCA 189
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
FRANÇOIS OUELLET
Plaintiff
AND:
EMPLOYMENT INSURANCE COMMISSION
Defendant
Hearing held at Québec, Quebec on Thursday, May 31, 2001
Judgment rendered at Ottawa, Ontario on Wednesday, June 6, 2001
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
NOËL J.A.
Date: 20010606
Docket: A-104-00
Neutral reference: 2001 FCA 189
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
FRANÇOIS OUELLET
Plaintiff
AND:
EMPLOYMENT INSURANCE COMMISSION
Defendant
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Counsel for the plaintiff skilfully argued that the board of referees and the umpire did not ask the right question in connection with his client's allegation. Whereas those two tribunals should have considered, pursuant to s. 43(2) of the Unemployment Insurance Regulations ("the Regulations"), whether the plaintiff devoted so little time to his business that he would not normally follow it as a principal means of livelihood, they instead only asked under s. 43(1) of the Regulations whether the plaintiff was operating a business on his own account. In other words, he objected that both tribunals completely failed to consider whether the plaintiff could and should benefit from the exception to the s. 43(1) rule contained in s. 43(2).
[2] With respect, I cannot subscribe to this argument by the plaintiff, which in fact invites the Court to place a restrictive and selective construction on the reasons of the board of referees.
[3] Although the board of referees did not expressly use the language employed in s. 43(2) of the Regulations, it seems clear that it considered the exception contained therein and rejected it.
[4] First, the board of referees stated that it based its conclusions on the plaintiff's statements and on the monthly balance sheets of his business. Those statements indicated the considerable time devoted by the plaintiff to his business. They also disclosed that the latter, who was recently laid off, intended to [TRANSLATION] "cut off ties with his former employer and become financially independent as quickly as possible": appeal book, vol. 1, p. 25. The plaintiff stated there that he was not available for other employment, that he was the founder-president, sole shareholder and employee of his business, that he spent all his time on it and that he regularly had to work in the evenings. Additionally, it was indicated that for the period in question the professional fees earned amounted to $33,044.
[5] It is clear that in accepting this evidence as the basis for its decision, after weighing the plaintiff's testimony, the board of referees dismissed the latter's allegations that he met the requirements of the exception contained in s. 43(2). Further, this is what emerges from its conclusion at p. 15 of the appeal book when it states that the plaintiff met the six criteria of CUB 5454, namely Schwenk, set out by Dubé J., specifically in order to determine whether a claimant who holds employment during his benefit period can qualify for the exception mentioned in s. 43(2) of the Regulations.
[6] The umpire, to whom the exception argument under s. 43(2) was submitted, reviewed the findings of the board of referees and found no error made by the latter in analyzing and interpreting s. 43(1) and (2) of the Regulations. In particular, regarding the time spent by the plaintiff on his business, he considered that the board of referees' decision was not unreasonable: umpire's decision, p. 3.
[7] It was the function of the board of referees to assess the facts, the evidence and the credibility of the witnesses, which it did. In this regard the umpire correctly understood his function and, there being no palpable and obvious errors, carefully refrained from becoming involved in these matters.
[8] In view of the conclusion to which I have just come I also find no error in the umpire's decision to uphold the conclusion of the board of referees that the plaintiff knowingly made false statements when he said he did not work during the benefit period. For these reasons, I would dismiss the application for judicial review with costs.
I concur in these reasons
Alice Desjardins J.A.
I concur
Marc Noël J.A.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: A-104-00
STYLE OF CAUSE: François Ouellet
v.
Employment Insurance Commission
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: May 31, 2001
REASONS FOR JUDGMENT BY: Létourneau J.A.
CONCURRED IN BY: Desjardins J.A.
Noël J.A.
DATED: June 6, 2001
APPEARANCES:
Frédéric St-Jean FOR THE PLAINTIFF
Suzon Létourneau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Frédéric St-Jean FOR THE PLAINTIFF
Sainte-Foy, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Date: 20010606
Docket: A-104-00
OTTAWA, ONTARIO, WEDNESDAY, JUNE 6, 2001
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
FRANÇOIS OUELLET
Plaintiff
AND:
EMPLOYMENT INSURANCE COMMISSION
Defendant
JUDGMENT
The application for judicial review is dismissed with costs.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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