Canada ( Attorney General ) v. Childs
A-418-97
Robertson J.A.
26/5/98
12 pp.
Judicial review of Umpire's decision setting aside decision of Board of Referees-In 1991 while employed with Branair Ltd. as air conditioning repairman respondent incorporating company called Wecan Heating & Air Conditioning-In 1993 position with Branair terminated-Respondent applied for unemployment insurance benefits, indicating not self-employed-Received 50 weeks of benefits-Respondent subsequently interviewed by Commission investigator Hmiel whose detailed notes indicating respondent admitted to having worked 2,000 hours during 1993 and to knowingly making false statements to Commission-In 1995 Commission retroactively disentitled respondent to benefits on basis self-employed, deemed to be working full working week during period in question, penalized respondent for making false, misleading statements-To counter admissions contained in Hmiel's notes, respondent submitting affidavit in which detailed hours billed throughout benefit period-Board dismissing appeal, holding respondent self-employed during entire benefit period-Umpire allowing appeal, concluding Board applied wrong test in assessing self-employment by relying on Schwenk (1979), CUB 5454 as in Canada (Attorney General) v. Jouan (1995), 122 D.L.R. (4th) 347 (F.C.A.), Court holding of six factors enunciated in Schwenk, most important, relevant factor time spent by claimant on business; other factors not relevant on own-Umpire finding had Board come to correct conclusion on self-employment issue, would accordingly have reached different conclusion on whether false or misleading statements made-Whether respondent self-employed or whether self-employment "so minor" as to allow him benefit of exemption in Unemployment Insurance Regulations, s. 43(2); whether respondent knowingly made false, misleading statements in application for benefits-Application allowed-Self-employment not determined on week-to-week basis-Not question of how many billable hours claimant worked in any one week, but total number of hours worked-True issue whether respondent pursuing work with Wecan as means of earning livelihood-By viewing hours worked on week-to-week basis, Umpire applied wrong test-Facts fully supporting conclusion reached by Board-When viewed in entirety, time spent in 1993 by respondent pursuing business neither inconsequential nor indicative of one not pursuing work with view to providing livelihood-Respondent not entitled to rely on "so minor" exception-Deemed to have been self-employed for entire benefit period, required to repay benefits received-As to whether Hmiel should have testified before Board if notes to be admissible, under Unemployment Insurance Act, neither Board nor claimant entitled to subpoena witnesses-Act not requiring Commission employees to attend hearings-Thus Court not having power to impose such requirement-Evidence of oral admissions by claimants in written notes of Commission employees not required to be accepted at face value-Board entitled to find claimant credible witness notwithstanding conflicting statements within notes-Board's role to determine what weight should be given to such statements-But not sufficient to simply state claimant's credibility "in question"-Accordingly Board erred in law-That Board erred in finding respondent not credible leading neither to opposite conclusion nor to conclusion Commission failing to meet burden of establishing respondent knowingly making false, misleading statements-Matter referred back to Umpire on basis respondent selfemployed during entire benefit period and Umpire to remit matter to differently constituted Board of Referees for redetermination of whether respondent knowingly made false, misleading statements-Unemployment Insurance Regulations, C.R.C., c. 1576. s. 43(1),(2).