Date:
20090331
Docket:
A-548-07
Citation:
2009 FCA 102
CORAM: BLAIS
J.A.
EVANS
J.A.
RYER
J.A.
BETWEEN:
DONALD
MARLOWE
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on March
31, 2009)
RYER J.A.
[1]
This is an
application for judicial review of a decision of Umpire Teitelbaum (CUB 69121),
dated August 23, 2007, dismissing an appeal of Mr. Donald Marlowe from a
decision of the Board of Referees (the “Board”) that he is not entitled to
benefits under the Employment Insurance Act, S.C. 1996, c. 23 (the
“Act”) for a period from June 8, 2003 to April 24, 2004 (the “benefit period”)
because he was self-employed, within the meaning of subsection 30(1) of the Employment
Insurance Regulations, SOR/96-332, (the “Regulations”) during that period.
The Board also upheld the assessment of a penalty under section 38 of the Act
for providing false and misleading information and issued a notice of a very
serious violation under section 7.1 of the Act.
[2]
When an
insured person makes an initial claim for benefits, section 9 of the Act
requires the establishment of a benefit period and mandates the payment of
benefits to the claimant for each week of unemployment that falls within the
benefit period. Subsection 11(1) of the Act provides that a week of
unemployment for a claimant is a week in which that claimant does not work a
full working week.
[3]
If a
claimant is self-employed or engaged in the operation of a business on his or
her own account (“self-employment”) during any week in a benefit period,
subsection 30(1) of the Regulations deems that claimant to have worked a full
working week during that week. As a result, that week will not be considered to
be a week of unemployment for the purposes of section 9 of the Act. Subsection
30(2) of the Regulations provides an exception to the deeming rule in subsection
30(1) of the Regulations where the self-employment is minor in extent. The
issue in this application is whether that exception applies to Mr. Marlowe.
STATUTORY PROVISIONS
[4]
The
relevant statutory provisions are section 9 and subsection 11(1) of the Act and
subsections 30(1) to (3) of the Regulations. These provisions are reproduced in
the appendix to these reasons.
DISCUSSION
[5]
We are not
persuaded that the Umpire made any reviewable error in declining to set aside
the decision of the Board that the applicant was not entitled to benefits
because he was self-employed within the meaning of subsection 30(1) of the
Regulations throughout the benefit period and that his self-employment was not
minor in extent, so as to fall within the exception contained in subsection
30(2) of the Regulations.
[6]
The
Board’s decision was primarily based upon its findings that:
(a)
the
applicant was engaged in the start-up of his new business on a full-time basis
during the benefit period;
(b)
the
applicant’s assertion that he spent only 10 to 15 hours per week in the new
business was not credible; and
(c)
the
full-time commitment of the applicant to his new business was not compatible
with his assertion that finding alternate employment was his first priority.
[7]
Before the
Umpire the applicant argued that the Board made a factual error by describing
income reported in his 2003 income tax return as business income when it was
really income from his former employment. The Umpire essentially concluded that
this factual error was an insufficient basis upon which to set aside the
Board’s decision.
[8]
Before
this Court, the applicant alleges that the Umpire should have overturned the
decision of the Board on the basis a number of additional factual errors. The
applicant argues that:
(a) his
job-searching efforts during the benefit period should have been given greater
consideration;
(b) his
gross income for the new business during the portion of the benefit period that
fell within 2004 was inaccurately described; and
(c) his
income from the new business was incorrectly stated.
[9]
The
applicant also argues that the Umpire erred by failing to “quantify” the time
that the applicant spent in the new business and that such quantification by
the Umpire was necessary to support his statement that the applicant was
engaged in the new business on a full-time basis.
[10]
The
factual findings that the applicant challenges are essentially factual findings
of the Board. It was not open to the Umpire, as it is not open to this Court,
to simply substitute the factual findings that the applicant urges for those
made by the Board. Before such intervention can occur, the applicant must show
that the impugned factual findings were made in a perverse or capricious manner
or without regard to the material that was before the Board.
[11]
Moreover,
any factual errors that have been established, having regard to this high
standard, must also be material in the sense that they are capable of having an
impact upon the decision in question.
[12]
In this
case, the essential factual findings of the Board are that the applicant was
engaged in the start-up of the new business on a full-time basis throughout the
benefit period and that his assertions to the contrary were not credible. We
are all of the view that these findings were open to the Board, based on the
evidence that was presented to it, and the applicant has not established any
basis upon which these findings could be overturned.
[13]
In
addition, in our view, the Umpire was correct in concluding that the factual
error of the Board in relation to the applicant’s 2003 income tax return was
not material.
[14]
Finally,
it was not the obligation of the Umpire to “quantify” the time that the
applicant spent in the new business in the benefit period. The Umpire’s reasons
simply demonstrate his acceptance of the essential factual findings of the
Board. It is the obligation of the applicant to establish that these essential
factual findings were made in a perverse or capricious manner or without regard
to the material that was before the Board. In our view, the applicant has not
done so.
[15]
In
conclusion, we are of the view that the applicant has not demonstrated any
error on the part of the Umpire that would warrant setting aside his decision
to uphold the decision of the Board that the applicant was not entitled to the benefit
of the exception in subsection 30(2) of the Regulations because his
self-employment in the new business during the benefit period was full-time,
and therefore not minor in extent.
[16]
With
respect to the penalty that was imposed under section 38 of the Act, the
evidence before the Board was that the Applicant failed on thirteen occasions
to report that he was self-employed. In our view, these failures were a
sufficient basis upon which to impose the penalty.
DISPOSITION
[17]
For the
foregoing reasons, the application will be dismissed, with costs.
"C.
Michael Ryer"
APPENDIX
|
Employment Insurance Act
9. When an
insured person who qualifies under section 7 or 7.1 makes an initial claim
for benefits, a benefit period shall be established and, once it is
established, benefits are payable to the person in accordance with this Part
for each week of unemployment that falls in the benefit period.
. . .
11. (1) A week
of unemployment for a claimant is a week in which the claimant does not work
a full working week.
|
Loi sur
l’assurance-emploi
9. Lorsqu’un
assuré qui remplit les conditions requises aux termes de l’article 7 ou 7.1
formule une demande initiale de prestations, on doit établir à son profit une
période de prestations et des prestations lui sont dès lors payables, en
conformité avec la présente partie, pour chaque semaine de chômage comprise
dans la période de prestations.
. . .
11. (1) Une
semaine de chômage, pour un prestataire, est une semaine pendant laquelle il
n’effectue pas une semaine entière de travail.
|
|
Employment
Insurance Regulations
.
. .
30. (1) Subject
to subsections (2) and (4), where during any week a claimant is self-employed
or engaged in the operation of a business on the claimant's own account or in
a partnership or co-adventure, or is employed in any other employment in
which the claimant controls their working hours, the claimant is considered
to have worked a full working week during that week.
(2) Where a claimant is
employed or engaged in the operation of a business as described in subsection
(1) to such a minor extent that a person would not normally rely on that
employment or engagement as a principal means of livelihood, the claimant is,
in respect of that employment or engagement, not regarded as working a full
working week.
(3) The circumstances to be
considered in determining whether the claimant's employment or engagement in
the operation of a business is of the minor extent described in subsection
(2) are
(a) the time spent;
(b) the nature and amount of the capital and
resources invested;
(c) the financial success or failure of the
employment or business;
(d) the continuity of the employment or business;
(e) the nature of the employment or business; and
(f) the claimant's intention and willingness to
seek and immediately accept alternate employment.
|
Règlement
sur l’assurance-emploi
. . .
30. (1) Sous réserve des paragraphes (2) et (4), le prestataire est considéré
comme ayant effectué une semaine entière de travail lorsque, durant la
semaine, il exerce un emploi à titre de travailleur indépendant ou exploite
une entreprise soit à son compte, soit à titre d’associé ou de coïntéressé,
ou lorsque, durant cette même semaine, il exerce un autre emploi dans lequel
il détermine lui-même ses heures de travail.
(2) Lorsque le prestataire
exerce un emploi ou exploite une entreprise selon le paragraphe (1) dans une
mesure si limitée que cet emploi ou cette activité ne constituerait pas
normalement le principal moyen de subsistance d’une personne, il n’est pas
considéré, à l’égard de cet emploi ou de cette activité, comme ayant effectué
une semaine entière de travail.
(3) Les circonstances qui
permettent de déterminer si le prestataire exerce un emploi ou exploite une
entreprise dans la mesure décrite au paragraphe (2) sont les suivantes :
a) le temps qu’il y consacre;
b) la nature et le montant du capital et des autres ressources investis;
c) la réussite ou l’échec financiers de l’emploi ou de l’entreprise;
d) le maintien de l’emploi ou de l’entreprise;
e) la nature de l’emploi ou de l’entreprise;
f) l’intention et la volonté du prestataire de chercher et d’accepter
sans tarder un autre emploi.
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