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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

                                                                              



     [1]Subsections 43(1) and (2) read:

43.(1) Subject to subsections (2) and (3), where a claimant is

(a) self-employed or engaged in the operation of a business on his own account or in partnership or a co-adventure, or

(b) employed in any employment other than that described in paragraph (a) in which he controls his working hours,

                he shall be regarded as working a full working week.

(2) Where a claimant is employed as described in subsection (1) and the employment is so minor in extent that a person would not normally follow it as a principal means of livelihood, he shall, in respect of that employment, not be regarded as working a full working week.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.