There are six factors to be considered in determining whether a claimant meets the "so minor in extent" criteria set out in the regulations:
(1) the time spent by the claimant on the business;
(2) the capital and resources invested in the business;
(3) financial success or failure of the enterprise;
(4) continuity of the business;
(5) the nature of the business as it relates to the claimant's ordinary occupation or trade;
(6) willingness of the claimant to seek or accept other employment.
Canada (A.G.) v. Magee [1993], F.C.J. No. 1047 (F.C.A.) A-1085-92
Veillet v. C.E.I.C., November 16, 1994, F.C.J. No. 1712 (F.C.A.) A-58-94
Canada (A.G.) v. Jouan [1995], F.C.J. No. 87 (F.C.A.) A-366-94
These six criteria are more appropriate for determining the status of a claimant operating a business than they are for an employee who determines his or her own working hours. However, for those claimants who do control their own working hours three of these tests, the first, fifth and sixth, are still useful.
Veillet v. C.E.I.C., November 16, 1994, F.C.J. No. 1712 (F.C.A.) A-58-94
Some cases have held that the most important, most relevant and only basic factor to be taken into account in all cases is the time spent by the claimant on the business in question. The conclusion in a particular case depends directly and necessarily on the time spent. While it is not irrelevant to consider the six other factors, it is an error to attach too much importance to them, individually or together, rather than focusing on the time factor
Fatt v. Canada (A.G.), April 3, 1995, F.C.J. No. 548 (F.C.A.) A-406-94
Canada (A.G.) v. Jouan [1995], F.C.J. No. 87 (F.C.A.) A-366-94
Canada (A.G.) v. Taschuk [1996], F.C.J. No. 669 (F.C.A.) A-616-95
Newhook v. Canada, June 9, 1998, F.C.J. No. 833 (F.C.A.) A-977-96
Lemay v. Canada, March 16, 1998, F.C.J. No. 595 (F.C.A.) A-662-97
Turcotte v. Canada, March 16, 1998, F.C.J. No. 596 (F.C.A.) A-664-97
Canada (A.G.) v. Lazar, February 4, 1998, F.C.J. No. 162 (F.C.A.) A-245-97
However, more recently, other cases have held that while the six factors identified in subsection 30(3) of the Employment Insurance Regulations must all be considered in deciding to what extent an individual is engaged in a business, two factors are paramount: the time spent by the person in the operation of the business and the person's availability for work. A claimant who does not have time to work or who is not actively seeking work should not benefit from the employment insurance system.
Charbonneau v. Canada (A.G.), 2004 FCA 61 A-699-02
Marten v. Canada (A.G.), 2008 FCA 240 A-256-07
Subsection 30(3) of the Employment Insurance Regulations has incorporated the six factors listed above as the circumstances to be considered in determining whether a claimant's employment or engagement in the operation of business is of a minor extent. Whether the claimant has no intention to engage in full time self-employment is not the test.
Subsection 30(3) Employment Insurance Regulations
Canada (A.G.) v. Alaie, [2003] F.C.J. No. 1647 (F.C.A.) A-682-02
The failure of the Board of Referees to expressly address the criteria in subsection 30(3) of the Regulations suggests that they were not considered. This constitutes a reviewable error.
Canada (A.G.) v. Miller, [2002] F.C.J. No. 60 (F.C.A.) A-772-00
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2009-04-29