Date: 20031106
Docket: A-682-02
Citation: 2003 FCA 416
CORAM: ROTHSTEIN J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
SAEED ALAIE
Respondent
Heard at Toronto, Ontario, on November 5, 2003.
Judgment delivered at Toronto, Ontario, on November 6th, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
PELLETIER J.A.
Date: 20031106
Docket: A-682-02
Citation: 2003 FCA 416
CORAM: ROTHSTEIN J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
SAEED ALAIE
Respondent
REASONS FOR JUDGMENT
[1] This is an application for judicial review by the Minister of Human Resources Development requesting the Court to set aside the decision of an Umpire in CUB 54187. The Umpire had allowed an appeal by Saeed Alaie from a decision by a Board of Referees. The Board had upheld a decision by the Canada Employment Insurance Commission that Mr. Alaie, an industrial engineer by profession, did not qualify for unemployment benefits in the six months that he was helping his wife run a small café that he had purchased.
[2] A claimant is considered to have worked a full working week, and hence to be ineligible for employment insurance benefits, during any week in which the claimant "is self-employed in the operation of a business on the claimant's own account or in a partnership or co-adventure ...": Employment Insurance Regulations, SOR/96-332, subsection 30(1). However, subsection 30(1) does not apply if the claimant's self-employment or engagement in the operation of a business is "to such a minor extent that a person would not normally rely on that employment or engagement as a principal means of livelihood": subsection 30(2).
[3] Subsection 30(3) prescribes six factors to be considered in determining whether a claimant's activities are of such a "minor extent" that subsection 30(2) applies. The Board applied this test, and a majority concluded that Mr. Alaie's involvement in the acquisition and operation of the café was sufficiently significant as to take him outside subsection 30(2).
[4] The Umpire concluded that the Board had erred in law by applying the wrong legal test for determining whether the claimant was disqualified under subsection 30(1). He said:
The critical issue, as I see it, is whether the evidence clearly established that it was the appellant's intention to engage in full time employment in the restaurant, not simply whether he was engaged in the business on an extensive basis. Surely, a claimant who has no intention of engaging in self employment and who conducts a genuine extensive job search to follow his chosen profession should not be penalized under the section because he assisted his wife with money and time in the operation of her business in order to attempt to make it profitable.
[5] We are all of the view that, in formulating the above test, the Umpire erred in law: the complainant's intention to engage in full time self-employment is not "the critical issue". The Board was correct to consider the factors prescribed in section 30, and the Umpire was not at liberty to substitute some other test which he may have thought would produce a fairer result on the facts of this case. Since the Board applied the right legal test, the Umpire could only reverse the Board's application of the law to the facts on the ground of unreasonableness, in the absence of some extricable principle of law: Budhai v. Canada (Attorney General), [2003] 2 F.C. 57 (C.A.).
[6] Mr. Alaie argued that he was given inaccurate information by an agent of the Commission about the circumstances in which he could both work in the business without prejudicing his eligibility for unemployment benefits, and obtain the benefits ("employment benefits") available to claimants who, among other things, start a business.
[7] It may well be that the receipt of employment benefits, payable under Part II of the Employment Insurance Act, S.C. 1996, c. 23, may have sheltered Mr. Alaie from the effects of section 9 of the Act and section 30 of the Regulations, and thus may have enabled him to retain his unemployment benefits, despite being self-employed to more than a minor extent.
[8] However, he did not in fact receive employment benefits and we cannot decide this case on the basis that he did. Nor is it our function to decide if he was misled about the application process, or would have been eligible for employment benefits if had applied in the manner set out in the relevant brochures.
[9] For these reasons, the application for judicial review will be granted without costs, the Umpire's decision set aside and the matter remitted to the Chief Umpire for disposition in accordance with these reasons.
"John M. Evans"
J.A.
" I agree
Marshall Rothstein
J.A. "
" I agree
J.D. Denis Pelletier
J.A. "
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-682-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
Applicant
and
SAEED ALAIE
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 5, 2003
REASONS FOR JUDGMENT BY : EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
PELLETIER J.A.
DATED: NOVEMBER 6, 2003
APPEARANCES BY:
Mr. Derek Edwards FOR THE APPLICANT
Mr. Saeed Alaie FOR THE RESPONDENT
(On his own behalf)
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE APPLICANT
Cambridge, Ontario FOR THE RESPONDENT
(On his own behalf)