IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
ADRIAN CYR
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IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
Burnaby, B.C., on the 11th day of April, 2001.
DECISION
Hon. David G. Riche
The issue in this case is whether or not the claimant was unemployed under s. 8, 10 and Regulation 43 of the Unemployment Insurance Act and not available for work under s. 14 and 40 of the Unemployment Insurance Act.
Mr. Cyr was a 16.6% shareholder in Pacific Coast Cedar Products up until 1999. The Board found that while he was on a UI claim during 1993 and 1996 he dropped into the mill and said he did so on a daily basis because he could not mow the lawn every day. Later in oral evidence, Mr. Cyr said he didn't attend the office of Pacific Coast Cedar Products on a daily basis and only attended from time to time notwithstanding that he also said earlier that he agreed with the evidence given by the president, George Klassen, at Exhibit 24, that Ed (referring to Adrian Cyr) attended strategy meetings for up to seven or eight hours a day Monday to Friday, on an average four hours per day.
Mr. Cyr said he could not read or write but had things read to him. He said he offered a hand to some of the workers they employed and assisted with the mechanical problems as required. He said he looked for jobs at other mills up and down the river but didn't keep a list of where he went or who he talked with. He said he kept informed through his wife as to what was in the papers with respect to employment. He did not keep a job search record.
The Board then reviewed the law with respect to the requirements for a person who was unemployed and particularly those who are working within their own business.
In this case the shareholders and directors, including Mr. Cyr, agreed to an arrangement whereby the owners and directors would take layoff and go on unemployment insurance rather than lay off other employees during times of turn down in business. They wanted to keep key employees. Mr. Cyr was not only a part-owner of this enterprise, but he was also one of the senior employees. His occupation was that of millwright.
Mr. Cyr's counsel argued that this was not a co-adventure with others and the Board found otherwise, and I believe correctly so. This business was half owned by the Klassen family and half owned by a group of others, one of whom was Mr. Cyr, who was involved in the day to day operation of the business. While he was on layoff and collecting unemployment insurance benefits, he was visiting the mill every day. He was also there with other persons who were employees, directors and shareholders.
The Board came to the conclusion at Exhibit 97.5: "We find as a fact that Mr. Cyr is described in s. 43(l) of the Regulations as being self-employed, engaged in the operation of a business on his own account and/or in partnership or co-adventure. We find that Mr. Cyr spent four to eight hours per day at Pacific Coast Cedar Products in protecting his investment; that he had sufficient capital and resources invested in both time and money and that he had an acute interest in the financial success or failure of the enterprise; that his presence and efforts provided for the continuity of the enterprise; that the work was in nature with Mr. Cyr's occupation and expertise and that he has failed to substantiate a willingness to accept and seek other suitable employment." The Board found that the evidence shows that Mr. Cyr was involved in the enterprise not to a minor extent and dismissed his appeal. They further dismissed his appeal because he had not shown that he was available for work, capable of and unable to find suitable employment while on claim. He offered insufficient substantiation of his job search. He failed to prove he was available. For these reasons his appeal was denied.
I have reviewed the transcript of the evidence with respect to Mr. Cyr and I find that the evidence supports the conclusion made by the Board of Referees. At p. 86 he, after some reluctance, agrees that he signed the statement made by the president George Klassen. At p. 87 he agreed that he was up at the mill for a meeting with the president George Klassen, Les Taylor and the Hamptons. Then at p. 89 he stated that he also talked to employees. Then at p. 89 he admitted that he did not keep records of a job search.
It is clear from the evidence that this claimant spent much of his time while on claim at his place of employment. His evidence further does not support the claimant looking for work during the time of layoff. It seems as though he was in and around the mill and meeting with the former employees as well as the former directors and owners. The jurisprudence is clear that the amount of time a person puts into one's business is the most important factor in determining whether or not they are self-employed. Time spent by Mr. Cyr supports the decision made by the Board of Referees and I find that this was his main means of livelihood.
Based on these findings, I am satisfied that the appeal of the claimant, Adrian Cyr, should be dismissed.
David G. Riche
Umpire
December 4, 2002
St. John's, NF