Date: 19980316
Docket: A-662-97
MONTRÉAL, QUEBEC, THE 16th DAY OF MARCH 1998
CORAM: THE HONOURABLE MR. JUSTICE DENAULT
THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN:
CHRISTIAN LEMAY
Applicant
AND:
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND:
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
J U D G M E N T
The application for judicial review is dismissed.
Pierre Denault
J.A.
Certified true translation
Peter Douglas
Docket: A-662-97
CORAM: DENAULT J.A.
DESJARDINS J.A.
CHEVALIER D.J.
BETWEEN:
CHRISTIAN LEMAY
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
Hearing held at Montréal on Monday, March 16, 1998
Judgment delivered at Montréal on Monday, March 16, 1998
REASONS FOR JUDGMENT OF THE COURT BY: DENAULT J.A.
Date: 19980316
Docket: A-662-97
CORAM: DENAULT J.A.
DESJARDINS J.A.
CHEVALIER D.J.
BETWEEN:
CHRISTIAN LEMAY
Applicant
AND:
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND:
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal
on Monday, March 16, 1998)
DENAULT J.A.
[1] We are of the view that the claimant"s application for judicial review must fail.
[2] In our view, the Umpire was right to remind the Board of Referees, which had applied the six factors from Schwenk (CUB 5454) in allowing the claimant"s appeal, of the much more recent decisions of this Court in Jouan (A-366-94), Taschuk (A-619-95) and Vande Bunte (A-697-95), where the Court specifically recognized that in interpreting subsection 43(2) of the Unemployment Insurance Regulations,time spent is "the most important, most relevant and only basic factor to be taken into account". While it was not irrelevant to consider other factors, it seems the Board of Referees made the mistake of attaching too much importance to the six factors, taken individually and together, rather than focussing on the time factor. The Umpire was therefore justified in deducting from the claimant the 35 to 40 hours per week he spent on his business while working on the job sites. As for the time spent on tenders, ordering equipment, meeting clients"in short, looking after the company without keeping track of the hours"this time, albeit voluntary, should be taken into account.
[3] As an operator of a business, it was up to the applicant to rebut the presumption in subsection 43(1) of the Regulations that he was working a full working week. Given the statutory declarations by the partners, the oral evidence before the Board of Referees did not justify its statement that the applicant [TRANSLATION] "was unable to do 40 hours/week of solicitation".
[4] The Umpire was justified in intervening and varying the decision of the Board of Referees.
[5] The application for judicial review will be dismissed.
Pierre Denault
J.A.
MONTRÉAL, QUEBEC
March 16, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF APPEAL
Date: 19980316
Docket: A-662-97
Between:
CHRISTIAN LEMAY
Applicant
AND:
CANADA EMPLOYMENT INSURANCE
COMMISSION
Respondent
AND:
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-662-97
STYLE OF CAUSE: CHRISTIAN LEMAY
Applicant
AND
CANADA EMPLOYMENT INSURANCE
COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF
CANADA
Third Party
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 16, 1998
REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE DENAULT, THE HONOURABLE MADAME JUSTICE DESJARDINS AND THE HONOURABLE DEPUTY JUSTICE CHEVALIER)
DELIVERED FROM THE BENCH BY: The Honourable Mr. Justice Denault
Dated: March 16, 1998
APPEARANCES:
William De Merchant for the applicant
| Claude Provencher for the respondent and the |
third party
- 2 - A-662-97
SOLICITORS OF RECORD:
Campeau, Ouellet, Nadon, Barabé, for the applicant
Cyr, De Merchant, Bernstein, Cousineau,
Heap, Palardy
Montréal, Quebec
George Thomson for the respondent
Deputy Attorney General of Canada and the third party
Ottawa, Ontario