TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
AND SUBSEQUENTLY THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
RÉGINALD LAROCQUE
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IN THE MATTER of an appeal to an Umpire by the
Commission from a decision by the Board of Referees given
on December 22, 1998 in Bathurst, New Brunswick
CORRESPONDING CUB: 45449A
CORRESPONDING FEDERAL COURT DECISION: A-592-99
DECISION
JEAN-LOUIS PÉLOQUIN, UMPIRE
At the hearing of this appeal, the Commission was represented by counsel Diane Fall. The claimant represented himself.
THE FACTS
The claimant clearly established that his job with the Comité portuaire de Lamèque Inc. was seasonal and that he did not work from December to April each year, because nothing was happening at the dock, noting that the boats there during these months were mired in ice.
The claimant stated that once a month, he made out invoices to the owners of the boats. There were eight (8) of them, and that is why it is stated in exhibit 12-1 that he received minimal compensation of $4 for a half-hour of work. Sometimes, he received $32.60.
The claimant said that, during the waiting period, he always went seven consecutive days without working and receiving his usual earnings. All he would receive was $4 a week for sending the accounts to the boat owners monthly and a few times he would receive higher earnings, i.e., $32.60. This was far less than he earned with this employer during the active season.
THE LAW
Section 2(1) of the Unemployment Insurance Regulations defines an "interruption of earnings" as an interruption that occurs in the earnings of an insured person at any time and in any circumstances determined by the regulations.
Section 37(1) of the Unemployment Insurance Regulations reads as follows:
Subject to this section, an interruption of earnings occurs when, following a period of employment with an employer, an insured person has a lay-off or separation from that employment and has or will have a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 58(12), are payable or allocated.
It can be seen that the claimant certainly was not working for periods of seven (7) consecutive working days during the waiting period over all of the months concerned, except for going to the dock to see whether everything was in order and sending accounts to the boat owners. He would receive $4 for doing this.
Since this is a claim for benefits which falls under the Employment Insurance system, we should refer to section 7(2)(a) of the Unemployment Insurance Act, which reads as follows:
An insured person, other than a new entrant or a re- entrant to the labour force, qualifies if the person has had an interruption of earnings from employment.
As was indicated previously, it is obvious this claimant endured interruptions of earnings during the first two (2) weeks of each month and would go seven (7) consecutive days without working.
Of course, it could also be said that he worked to some extent and would receive $4 for sending the accounts to the boat owners, but this would be an abusive enforcement of the Act and Regulations under the circumstances of this case.
Counsel Fall cited the Federal Court of Appeal decision (A-1195-84) rendered on February 25, 1986, in which the decision was totally different from the one I have to render here. In that case, the claimant received his regular annual salary for twenty-six (26) months and was entitled to all fringe benefits, except for the sick leave. This is far removed from the case before us here, and I certainly cannot apply that decision to this appeal.
It is evident that the claimant did not work for seven (7) consecutive days for his employer at the beginning of each month during the winter. Moreover, he was not receiving a salary, as he was only receiving $4 a week for his efforts.
To rule otherwise than did the Board of Referees would clearly run counter to the spirit of social legislation and do an injustice to the claimant.
For these reasons, I have concluded that the Board did not err in law or make an erroneous finding based on the facts before it to make its decision.
Consequently and on these grounds, I must deny the Commission's appeal and uphold the Board of Referees' decision of December 22, 1998 for all legal purposes.
JEAN-LOUIS PÉLOQUIN
UMPIRE
SHERBROOKE, Quebec
July 19, 1999