Date: 19980609
Docket: A-977-96
CORAM: STONE J.A.
DENAULT J.A. (ad hoc)
LINDEN J.A.
BETWEEN:
ALBERT J. NEWHOOK
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at St. John's, Newfoundland, Tuesday, June 9, 1998.
Judgment delivered from the Bench at St. John's, Newfoundland, Tuesday, June 9, 1998.
REASONS FOR JUDGMENT OF THE COURT
Date: 19980609
Docket: A-977-96
St. John's, Newfoundland, Tuesday, this 9th day of June 1998.
PRESENT: STONE J.A.
DENAULT J.A. (ad hoc)
LINDEN J.A.
BETWEEN:
ALBERT J. NEWHOOK
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The section 28 application is dismissed.
"A.J. Stone"
J.A.
Date: 19980609
Docket: A-977-96
CORAM: STONE J.A.
DENAULT J.A.
LINDEN J.A.
BETWEEN:
ALBERT J. NEWHOOK
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland
on Tuesday, June 9, 1998)
STONE J.A.
I. The applicant seeks by this application for judicial review to quash a decision of an Umpire acting pursuant to the Unemployment Insurance Act (the "Act"). By that decision the Umpire, The Honourable A. H. Hollingworth, Q.C. , reversed a determination of the Board of Referees that the applicant was not "self-employed" during the relevant period
within the meaning of section 43 of the Unemployment Insurance Regulations.[1]
II. The Board of Referees disposed of the self-employment issue in the following terms at page 2 of its decision:
... the Board finds the claimant is not self-employed as a fisherman. With the call of the moratorium the claimant opted for employment with the Marine Institute and as such was and is awaiting recall to his teaching position.
III. The assertion of the Commission to the Board of Referees that the applicant was self-employed was based on the following facts as admitted in the applicant's sworn declaration of June 2, 1995:
At present I have a 52' boat, the "Beckford". This boat is in the water in New Harbour. I have been trying to get this vessel ready for the fishery this year. I have been working on her as well as some other crew since approximately early March 1995. We have done some repairs to the forward deck, the wheelhouse, and also the fish hole. Recently, we have been working on the transmission basically trying to get her seaworthy for the crab fishery. Initially in March we were hampered by the weather, but as time progressed we could spend more time at the repairs. We were usually spending 2 - 6 days per week at the repairs. Recently I have been spending more time at the boat as the crab fishery gets closer. Basically I have been working every day except Sunday trying to get the boat ready for crab. If we miss the crab fishery then we will be at a big loss as we are counting on this fishery to pay our bills.
...
Basically I spend more time at the boat than the crew as I feel that the boat is my life and I don't expect my crew to put in as much time as I do to make the fishery a success from my point of view.
...
At present I value that boat at $80,000.00. It would also take another 12-15,000 to fit her out for the crab fishery.
IV. The applicant contends that the Umpire exceeded his jurisdiction and that he erred in law in determining that as the applicant was working a "full working week" in preparing his boat for the crab fishery, he was not eligible to receive benefits under the Act and the regulations.
V. In our view, the Umpire's decision should not be disturbed. Without subscribing to all of the reasons of the Umpire, we are satisfied that he reached the correct result in the circumstances. It is evident to us that the Board of Referees neglected to make specific findings of fact as required by subsection 79(2) of the Act. Nor, in our view, did the Board determine as it should have done whether the applicant had worked a "full working week". Having regard to the evidence, and particularly to the appellant's sworn declaration of June 2, 1995, it is apparent that the facts are not seriously in dispute. The essential task facing the Board of Referees was in applying the law to those facts.
VI. The decision of this Court in Canada (Attorney General) v. Jouan (1995), 179 N.R. 127, which is referred to by the Umpire or "the leading case ... in this section of the law", has been applied ever since. Thus in Taschuk v. Canada (Attorney General) [1996] F.C.J. No. 669, this Court held that preliminary steps taken by a claimant to start up a business are to be taken into account in determining whether the subsection 43(2) exception applies. In our view, the Umpire correctly determined that the exception is not available to the applicant having regard particularly to the time spent in preparing the "Beckford" for the forthcoming crab fishing season for which he held a license and the size of his investment.
VII. Before disposing of the matter, we wish to draw attention to what appears to be an unresolved issue of fact arising from the circumstance that it appears not to have been expressly addressed below. We are here referring to the date as of which the applicant must have become ineligible to receive benefits. According to the Commission, the relevant date is February 20, 1995. That date may well have been based on an extrapolation of evidence that was received from an anonymous caller. On the other hand, there is in the record the sworn evidence of the applicant himself that he had been working on the "Beckford" with other crew members "since approximately early March" 1995. It may be that the Commission will wish to revisit this aspect of the case in the light of the evidence to see whether its initial determination of the relevant date is correct and to make an adjustment if it is satisfied that an adjustment ought to be made.
VIII. The section 28 application will be dismissed.
"A.J. Stone "
J.A.
FEDERAL COURT OF APPEAL
Date: 19980609
Docket: A-977-96
BETWEEN:
ALBERT J. NEWHOOK
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-977-96
STYLE OF CAUSE: ALBERT J. NEWHOOK
- and -
THE ATTORNEY GENEARL OF CANADA
PLACE OF HEARING: St. John's, Newfoundland
DATE OF HEARING: June 09, 1998
REASONS FOR JUDGMENT STONE J.A.
OF THE COURT: DENAULT J.A. (ad hoc)
LINDEN J.A.
DELIVERED BY: STONE, J.A.
DATED: June 09, 1998
APPEARANCES:
Ms. Stephanie Newell for the Applicant
Patrick Vezina for the Respondent
SOLICITORS OF RECORD:
Ms. Stephanie Newell for the Applicant
O'Dea, Earle Law Officers
P. O. Box 5955
323 Duckworth Street
St. John's, NF
A1C 5X4
Mr. Patrick Vezina for the Respondent
Department of Justice
Suite 1400, Duke Tower
5251 Duke Street
Halifax, NS
B3J 1P3
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