Date: 19980205
Docket: A-245-97
CORAM: STONE, J.A.
LINDEN, J.A.
MCDONALD, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
WARDA LAZAR
Respondent
Heard at Toronto, Ontario, Wednesday February 4, 1998
Judgment delivered from the Bench at Toronto, Ontario, Wednesday February 4, 1998
REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.
CONCURRED BY: LINDEN, J.A.
MCDONALD, J.A.
Date: 19980205
Docket: A-245-97
CORAM: STONE J.A.
LINDEN J.A.
MCDONALD J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
WARDA LAZAR
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Wednesday February 4, 1998)
STONE, J.A.:
[1] This application seeks to set aside a decision of an umpire who determined that the respondent was qualified to receive benefits under the Unemployment Insurance Act and the regulations during the period January 20, 1992 to July 31, 1992, thereby reversing a decision of the Board of Referees.
[2] The respondent left his former employment on August 20, 1991. A week earlier, his wife entered into a commercial lease with a view to operating a restaurant business on the premises. The respondent became the "guarantor" of his wife's obligations under the lease. In addition, he contributed one-half of the security deposit required by the lease. The respondent's wife operated the restaurant business from 11:00 a.m. to 6:00 p.m. seven days a week, while the applicant regularly worked 6:00 p.m. to 1:00 a.m. seven days a week for most of the period. The Umpire determined as a fact that the respondent worked "a substantial number of hours" in each working week. He received no renumeration for that work. Shortly after the July 31, 1992, the business failed.
[3] The issue before the Umpire was whether the respondent's claim fell within the exempting language of subsection 43(2) of the Unemployment Insurance Regulations. Section 43 as it stood at the relevant time read:
| 43.(1) Subject to subsection (2) and (3), where a claimant is |
| (a) self-employed or engaged in the operation of a business on his own account or in partnership or a co-adventure, or |
| ... |
| he shall be regarded as working a full working week. |
| (2) Where a claimant is employed as described in subsection (1) and the employment is so minor in extent that a person would not normally follow it as a principal means of livelihood, he shall, in respect of that employment, not be regarded as working a full working week. |
[4] In allowing the appeal, the Umpire concluded as follows:
| A person, albeit a co-adventurer, who works gratuitously in an effort to assist a spouse, another family member, or a friend, to establish or maintain a business venture can hardly be said to be employed to an extent that he or she would normally follow that employment as a principal means of livelihood. All things considered I find Mr. Lazar's employment was so minor in extent that one would not normally follow it as a principal means of livelihood. |
[5] In our view, the Umpire did not give full effect to this Court's decision in Attorney General of Canada v. Jouan (1995), 179 N.R. 127, to which he referred earlier in his decision. In that case, Marceau, J.A., after alluding to the earlier jurisprudence, stated at page 130-31:
| It is my conviction, however, that the most important, most relevant and only basic factor to be taken into account has to be, in all cases, the time spent. First, this is what the French version says unequivocally, the ambiguous English phrase "so minor in extent" having to be read within the confines of the unambiguous French words "il y consacre si peu de temps": see on this point P.A. Côté, The Interpretation of Legislation in Canada (1991) at p. 273. Second, this is what common sense requires. Whatever be the status of the other factors (be it the capital invested, or the success of the enterprise or the continuity of the business), they can never be relevant on their own, the conclusion in a particular case depends directly and necessarily on the "time spent", since, is it necessary to repeat it, we are dealing here strictly with the notion of "full working week". In the case of a claimant who spends, on a regular basis, 50 hours per week to the affairs of his own business, there is no way that he can invoke the exception of s. 43(2). This claimant must necessarily be considered as falling under the general presumption of s. 43(1) and be regarded as working a full working week. |
[6] Applying this analysis, we are satisfied on the evidence that the respondent's involvement in the restaurant business was not "so minor in extent that one would not normally follow it as a principal means of livelihood".
[7] The application will therefore be allowed, the decision of the Umpire set aside, and the matter referred back to the Chief Umpire or to an umpire designated by him for reconsideration on the basis that the appeal from the decision of the Board of Referees be dismissed.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Date: 19980205
Docket: A-245-97
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
WARDA LAZAR
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-245-97
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
- and -
WARDA LAZAR
DATE OF HEARING: FEBRUARY 4, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STONE, J.A. |
DATED: February 5, 1998
Delivered from the Bench at Toronto, Ontario
on Wednesday February 4, 1998
APPEARANCES: Mr. Robert H. Jaworski
For the Applicant
Mr. Warda Lazar
For the Respondent
| SOLICITORS OF RECORD: George Thomson |
Deputy Attorney General
of Canada
For the Applicant
Mr. Warda Lazar
55 Towercrest Drive
Unit 81
Hamilton, Ontario
L9A 5J1
For the Respondent