IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
SCOTT COGHLAN
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IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on March 8, 1996 at Saskatoon, Saskatchewan.
DECISION
The Honourable R.J. Marin
This appeal was heard at Saskatoon on April 18, 1997.
Two issues are dealt with in this appeal: the availability of the claimant and whether tournament prizes should be allocated as earnings under ss. 57(2) and 58(3) of the Regulations.
I cannot set aside the finding of the Board of Referees with respect to the first issue. It is a finding of fact of the Board that the claimant had a passive job search and failed to adduce sufficient evidence to establish his availability. My intervention is not justified on this issue.
The second issue, however, deserves appropriate consideration. I find little or no comfort from the argument of the Commission that income, as defined in Regulation 57(1), includes tournament prizes that a curler might receive. I note that the definition of income states, "'from an employer or any other person." The "or", in my view, cannot be constructed as avoiding an employer/employee relationship.
Similarly, the definition of "employment" in Regulation 57(1) does not further advance the cause of the Commission. Hypothetically speaking, if the Commission is correct in its interpretation, earnings from prizes at a bingo, a lottery, winnings at a casino and a host of other games of chance and skill would be subject to allocation. I note, in passing, that Revenue Canada has taken the position that tournament prizes are not income.
To suggest, as the Commission did, that it could also rely on the provisions of s. 58(3) of the Regulations that there was a "contract of employment" is, to my view, far more reaching than is permissible under Regulation 58(3) and cannot support its position. Even assuming I were wrong in that conclusion, the claimant was not given the opportunity of producing his disbursements with respect to the income. The Commission cannot have it both ways - disbursements required to derive an income must be allowed - and - the Board's decision cannot be allowed to stand.
In the circumstances, I dismiss the appeal with respect to the first issue, but quash the decision of the Board with respect to the second issue and allow the appeal in part.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
August 30, 1997