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  • CUB 21875



    - and -

    IN THE MATTER of a claim for benefits by
    FILLION, Patrice

    - and -

    IN THE MATTER of an appeal to an Umpire by the Commission
    from a decision by the Board of Referees given at
    Charlesbourg, Québec on January 29, 1991




    DUBÉ, J.

    The Commission is challenging two unanimous decisions of Boards of Referees, which overruled the decisions of the Commission's officer to the effect that the claimants did not prove that they were unemployed because they were working during the periods in question. Payment of their benefits was therefore terminated under sections 8 and 10 of the Unemployment Insurance Act and subsection 44(1) of the Regulations.

    The matter concerns two brothers who worked on a farm belonging to their father. In the case of Patrice Fillion, the years involved were 1987, 1988 and 1990, while for Roger Fillion the two years concerned were 1988 and 1989. Following an investigation by the Commission, the two claimants were retroactively declared not to be unemployed during these periods. The following overpayments resulted from this decision: Patrice Fillion $6,510 for 1987, $11,250 for 1988 and $7,920 for 1990; Roger Fillion $12,728 for 1988 and $10,800 for 1989.

    On September 5, 1990, Patrice Fillion stated to the Commission that over the next few months, he intended to purchase a 50% interest in the farm, with his father. He had already completed three years of training in agricultural technology with this in mind, and had been involved in the operation of the farm as if it were his. However, the farm could not pay him a salary all year round, and he therefore had himself paid a salary by his father for the number of weeks required to become entitled to receive unemployment insurance benefits. He regarded the unpaid part of his work as "volunteer" work to earn his room and board. He thus worked regularly without salary. He and his brother Roger were not hired at the same time. On the cards he returned to the Commission, Patrice did not state that he worked on the farm, since he did not receive any salary, nor did he say anything about this work in his interviews. He maintained, however, that he was available for work, but made only one application for a job.

    The father's statement to the Commission confirms his son's statement. His two sons were paid in turn. However, there was work for both of them all year round, so that they worked continually. The benefits that the sons received were "a kind of salary".

    Before the two Boards of Referees, the claimant involved, his father and counsel for the claimant were present, and the following facts emerged at the hearing:

    -The claimant lived with his parents.
    -For years the farm had hired one or two persons to do harvesting, planting and construction work.
    -The claimant, being unemployed, was offered a job in June 1988 for a period of 24 weeks. He was laid off and rehired.
    -In the meantime, another person with more experience in mechanics was hired for the summer period.
    -When the claimant was called upon to work on weekends, he was paid and filed his report cards.
    -During his periods of unemployment, the claimant, like his brothers and cousins...
    -His father stated at the hearing that if he did not have help, he would not have hired anyone, but that the work would have taken longer to complete.
    -The claimant filed a series of job searches in the fields of construction, carpentry and government (Exhibits 23-1 to 23-15).

    Regarding the appeal of Patrice Fillion, the Board of Referees rescinded the three decisions of the Commission, and found as follows:

    ... the claimant did not work a full working week. He did only a few hours' work, but in order to help out, while living with his parents.
    Regarding his intentions to buy the family farm one day, one cannot penalize a son for aspiring to succeed his father one day and to acquire the family property...

    In the decision concerning the appeal of Roger Fillion, the Board of Referees found:

    ... that the claimant was unemployed for the periods at issue, but occasionally did volunteer work in the family business. However, there was no contract of service as he was not an employee.
    Moreover, the claimant confirmed that he had no intention to buy the farm in the immediate future, and indeed no steps along those lines had been taken.

    The Commission is making an appeal to the Umpire on the grounds that the testimony presented at the hearing refuted the statements previously obtained from the claimants and from their father. The case law on the matter clearly indicates that a Board of Referees must generally attribute greater evidentiary value to a first spontaneous statement than to a subsequent statement, which may be designed to justify the claimant's position and be presented so as to further the claimant's interests (CUBs 17431, 13986, 14000, 13377, 11041 and 13360). The statements accepted by the Board of Referees do in fact contradict the statements presented to the Commission.

    The Board of Referees is obviously master of the facts, and the Umpire must hesitate before rescinding a finding of fact by the Board in order to impose his own interpretation of the facts. On the other hand, it seems clear and obvious to me that the Board of Referees made a decision that was not based on all the facts brought to its attention. This is a ground for appeal under subsection 80(c) of the Unemployment Insurance Act.

    The original, spontaneous statement of the father, who was after all the employer, cannot be set aside. The father stated, in particular, that his two sons were paid in turn because the farm could not pay both salaries at the same time, but that he always had both of them in his service throughout the year, for there was work year-round on the farm. The father terminated the employment of one son when the other began to receive a salary, and did the opposite when the first was about to receive unemployment insurance benefit. In his words, "Their unemployment insurance benefits were a kind of salary for them while they continued to work."

    The Board of Referees also erred in finding that the claimants proved their availability for work simply because they stated that they were available to accept work, when they did not prove that they had made serious efforts to find employment. As for the "volunteer" work, the original statements clearly established that the claimants not only expected that they would eventually derive some benefit, profit or financial advantage from their work, but that in addition, as they themselves admitted, they received room and board.

    Consequently, the Commission's appeal is allowed.

    J.E. DUBÉ


    July 30, 1992