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  • Week of Unemployment

    Disclaimer:
    *This asterisk denotes recent case law.

    Questions to Answer



    1. Does claimant have a week of unemployment?
    2. Is claimant working a full working week?

    References


     
    Act: section 11 Employment Insurance Act
    Regulations: sections 29 Employment Insurance Regulations, 30 Employment Insurance Regulations, 31 Employment Insurance Regulations, 32 Employment Insurance Regulations 

    Legal test


     

    Definition of a week of unemployment - subsection 11(1) of the Act   Employment Insurance Act: a week in which the claimant does not work a full working week:

    Self-employed, business operators or persons who control their own working hours - subsection 30(1) of the Regulations   Employment Insurance Regulations.

    Depends on minor in extent: section 30(2) of the Regulations   Employment Insurance Regulations

    Criteria for minor in extent: subsection 30(3) of the Regulations   Employment Insurance Regulations

    1. time spent by claimant on business

    2. capital and resources invested in the business

    3. financial success or failure of the enterprise

    4. continuity of business

    5. nature of business as it relates to claimant's ordinary occupation or trade

    6. intention and willingness of the claimant to seek and accept other employment.
    Employed persons: Comparison of hours or shifts or days: Regulations section 31 Employment Insurance Regulations

    Other situations: Regulations section 29 Employment Insurance Regulations

    If no services performed (continuing contract, deferred salary leave, compensatory leave): Act subsections 11(2), 11(3), 11(4) Employment Insurance Act 

    Onus of proof


     
    First and foremost, a claimant must prove he/she has a week of unemployment. Act section 9 Employment Insurance Act.

    Key Case Law


     

    ALAIE A-682-02, Judgment Of The Federal Court Of Appeal LAZAR A-245-97 Judgment Of The Federal Court Of Appeal:  Co-adventure with spouse - consideration of minor in extent.

    FRIDMAN A-364-02 Judgment Of The Federal Court Of Appeal, MORETTO A-667-96 Judgment Of The Federal Court Of Appeal: Self-employed as owner/manager.

    MAGEE A-1085-92 Judgment Of The Federal Court Of Appeal:  Considers the point at which the business has developed beyond "minor in extent".

    CHILDS A-418-97 Judgment Of The Federal Court Of Appeal, MIAZGA A-698-95 Judgment Of The Federal Court Of Appeal:  Minor in extent - analysis of the "time spent" factor.

    GREEY A-76-09 Judgment Of The Federal Court Of Appeal: The proper test to distinguish employment from volunteer work is whether the claimant expected to derive any financial benefit from the work arrangement and not “some kind” of benefit independent of the work arrangement. GAGNON A-477-00 Judgment Of The Federal Court Of Appeal, BUCKLEY A-427-99 Judgment Of The Federal Court Of Appeal, GAUTHIER A-105-98 Judgment Of The Federal Court Of Appeal, BOILY A-144-98 Judgment Of The Federal Court Of Appeal, A-146-98 Judgment Of The Federal Court Of Appeal, LAPRISE A-1009-90 Judgment Of The Federal Court Of Appeal, BERUBE A-986-88 Judgment Of The Federal Court Of Appeal:  Meaning of volunteer work vs employment.

    ENDICOTT A-707-94 Judgment Of The Federal Court Of Appeal:  Ran convenience store and tourist cabins, had operated business while employed full-time elsewhere.

    D'ASTOLI A-999-96 Judgment Of The Federal Court Of Appeal, THIBAULT A-247-96 Judgment Of The Federal Court Of Appeal:  Claimant holds insurable employment and is also a shareholder in the company - insurability irrelevant.

    DUGUAY A-75-95 Judgment Of The Federal Court Of Appeal:  "Lay-days".

    NEWHOOK A-977-96 Judgment Of The Federal Court Of Appeal:  Preparing boat for fishing season (fisher on regular claim).

    TASCHUK A-616-95 Judgment Of The Federal Court Of Appeal:  Preparing to start a business - spending 25 hours per week.

    ORAM A-676-93 Judgment Of The Federal Court Of Appeal:  Deferred salary leave.

    VIEL A-725-99 Judgment Of The Federal Court Of Appeal, CARON-BERNIER A-136-96 Judgment Of The Federal Court Of Appeal, DROUIN A-348-96 Judgment Of The Federal Court Of Appeal, LEEMING A-416-97 Judgment Of The Federal Court Of Appeal:  Farming - self employment vs investment.

    PANCHO FARM - HAZLMERE GREENHOUSES (several appellants) KUMAR A-278-95 Judgment Of The Federal Court Of Appeal, DHILLON A-444-95 Judgment Of The Federal Court Of Appeal:  Week of unemployment - greenhouse/farm workers.

    DION A-531-01 Judgment Of The Federal Court Of Appeal:  Articling law student working 35 hours per week is working a full working week pursuant to section 31 of the EI Regulations   Employment Insurance Regulations.

    OSANIC A-195-97 Judgment Of The Federal Court Of Appeal:  Self-employment: operating a law firm.

    DI PIERRO A-21-95 Judgment Of The Federal Court Of Appeal, ST-GELAIS A-141-98 Judgment Of The Federal Court Of Appeal:  Considers "full working week" provisions either under UI Regulations sections 43 or   UI Regulations section 43 44 UI Regulations section 44 (now EI Regulations sections 30 and   Employment Insurance Regulations 31 Employment Insurance Regulations).

    ALLAIN A-38-98 Judgment Of The Federal Court Of Appeal,:  Whether spouse's involvement in the business becomes one of a benevolent nature when there is no income.

    SGRO A-436-97 Judgment Of The Federal Court Of Appeal:  President of a company - minor in extent factors, investment vs employment considered.

    VACHON A-282-98 Judgment Of The Federal Court Of Appeal:  Commission sales - controlling own working hours.

    MARTENS  A-256-07 Judgment Of The Federal Court Of Appeal : The objective test in subsection 30(2) of the EI Regulations must be applied. The Board must objectively view the extent of the claimant's engagement in the business during the benefit period, in light of the factors set out in subsection 30(3), and determine whether it is such that a person would not normally rely on that level of engagement as a principle means of livelihood.

    CHARBONNEAU A-699-02 Judgment Of The Federal Court Of Appeal: Paragraph 30(3)(a) the “time factor” and (f) the “intention and willingness” factor are of the utmost important of all the factors listed in subsection 30(3) of the EI Regulations   Employment Insurance Regulations.





    2012-02-28