IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
ANNA KLASSEN
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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.
The claimant is a director and shareholder in a family owned business known as Pacific Coast Cedar Products. She is a 50% shareholder in a company known as First Klass Holdings, which owns 50% of Pacific Coast Cedar Products. She testified that she worked in the office of Pacific Coast for several years. Her husband was the president of the company and was the main operating officer.
In 1993, and again in 1996, the company decided to lay off the shareholders and directors from their employment with the company and retain key employees in order to cut expenses. During their period of unemployment, they made claims for unemployment insurance. While on benefits they continued to visit the mill where Pacific Coast Cedar had its operation and its office.
The Board found that when the appellant was laid off she would visit the office on occasion and performed some duties. Her normal duties were filing, answering the phone, making out orders and general office duties. When she was laid off another person was employed to fill in and do some of her work and that of others.
Evidence from her husband states that the directors met at the premises of Pacific Coast and spent some four to eight hours a day during the period of layoff. Anna Klassen, however, stated that she never attended strategy sessions although at one part of her evidence she said that she did attend them sometimes. The Board found that she was not a credible witness. The Board did not believe her when she said that she only dropped in on occasion and did no work.
The Board found as a fact that she frequently attended her place of employment while she was on UI benefits. They found that she did work and this was her principle means of livelihood, it being the family business. The Board also found that she had a significant investment in this family enterprise, owning about 25% of the shares in it.
The Board further found that the business continued to operate throughout the time that Anna Klassen was on claim and that she added to the operation. Her evidence is in conflict with that of her husband's who said that at sometimes his daughter Katherine and Anna attended strategy meetings at the mill.
I have reviewed the evidence relating to Anna Klassen as found in the transcript and find that I am left with a conclusion that this claimant did not visit the premises of the company frequently but only visited now and then and attended to bank deposits and a few other items. The evidence discloses to me that in respect of time spent that she did not spend a great deal of time there during her period of layoff. Neither do I have any evidence as to how much time she spent there while she was employed. Even though the Board of Referees are the finders of fact and the ones who determine issues of credibility, there does not appear to be evidence before them that the claimant spent a lot of time at the business. It appears to me from the evidence that it was the male shareholders and directors who spent most of the time at the premises during the period of layoff.
There is no doubt that the claimant was a major shareholder and no doubt she consulted with her husband who was president of the company. There is, however, no evidence as to how much time she spent at the business during her period of layoff. When one considers the evidence put forward by the Commission, including its investigating officer and the statements of the other witnesses, it appears that this claimant did not spend much more than a few hours a week at this business. That being so, I am satisfied that I must agree with the submissions of counsel for the claimant that, although there is some contradiction in her testimony, she did not put in sufficient time at the business in order to conclude that she was involved in the operation of the business to more than a minor extent. A person may be a major shareholder but that person may spend little time in the actual operation of the business.
Section s. 43(1)(a) of the Regulations does not apply to a person who is not engaged in the operation of a business on her own account or in partnership or a co-adventure. In order for this section to apply to the claimant, she would have to be shown to be involved in the operation of the business to more than a minor extent. That has not been shown in the evidence and I am satisfied that the Board of Referees were erroneous in making the finding that they did as there was insufficient evidence to support such a finding.
With respect to the issue of availability, I have come to the conclusion that I must agree with the decision of the Board of Referees as the claimant in this case, although showing that she made little effort to find work and did find work but refused it as not being able to perform it, is not sufficient to show that she was in fact seeking employment each and every day that she was on layoff, as required by the Act.
Section 14 of the Act states clearly that a claimant is not entitled to be paid benefits for any working day for which the claimant fails to prove that she was capable and available for work and unable to obtain suitable employment on that day. The evidence presented by the claimant before the Board and in the record does not establish that she was in fact seeking employment. Her statement in Exhibit 31 that she was available for work is not sufficient. She has to show that she has been seeking employment each and every day that she is on claim. That is the interpretation of s. 14 of the Act.
For these reasons, the claimant's appeal is allowed with respect to her carrying on business under s. 43(1) of the Regulations. Her appeal, however, with respect to the issue of availability under s. 14 is denied.
David G. Riche
Umpire
December 4, 2002
St. John's, NF