Employment Insurance (EI)

Decision

[1] The appeal is dismissed. I find that the Appellant has been working full working weeks since November 30, 2020. This means that the disentitlement to Employment Insurance (EI) benefits imposed on him from November 30, 2020, for failing to show that he is unemployed is justified.^{Footnote 1}

Overview

[2] From February 18, 2019, to November 28, 2020, the Appellant worked as a joiner for the employer X, a construction and renovation business of which he is the president and a shareholder.^{Footnote 2}

[3] On December 7, 2020, the Appellant made an initial claim for EI benefits (regular benefits.^{Footnote 3} A benefit period was established effective November 29, 2020.^{Footnote 4}

[4] On April 27, 2021, the Canada Employment Insurance Commission (Commission) informed him that it could not pay him EI benefits from November 30, 2020, because he was self-employed as a carpenter-joiner and contractor, and that it considered his self-employment to be his main source of income. The Commission explained to him that he had made no effort to find a job as an employee since the start of his claim for benefits. It told him that it did not consider him unemployed.^{Footnote 5}

[5] On June 7, 2021, after a request for reconsideration, the Commission informed him that it was upholding the April 27, 2021, decision.^{Footnote 6}

[6] The Commission argues that the Appellant is engaged in the operation of a business that he works for and that he is relying on that engagement as a principal means of livelihood. It also explains that the Appellant wants to continue running his business instead of looking for work with another employer.^{Footnote 7}

[7] The Appellant argues that he should not be considered a self-employed person because he is firstly an employee of the business of which he is a shareholder. He says that he devoted, on average, 2 hours per week to his business from late November 2020 to mid-February 2021 and that he then devoted 40 hours to it weekly. The Appellant says that he is available for work and that he has made efforts to find work. He indicates that he is in the labour pool of the Commission de la construction du Québec [Quebec’s construction commission] (CCQ), which informs him of job opportunities in construction. The Appellant explains that he was waiting to start a contract for a client of the business of which he is a shareholder from late November 2020 to mid-February 2021 and then went back to work. On June 17, 2021, the Appellant challenged the Commission’s reconsideration decision. That decision is now being appealed to the Tribunal.

Issues

[8] I have to decide whether the Appellant has been working full working weeks since November 30, 2020, and whether the disentitlement to EI benefits imposed on him from that date for failing to show that he is unemployed is justified.^{Footnote 8}

[9] To decide this, I have to answer the following questions:

• Should the Appellant be considered a self-employed person?^{Footnote 9}
• If so, is the Appellant’s self-employment minor enough in extent to establish that he is unemployed or not working full working weeks?

Analysis

[10] If you are involved in a business, you may not be entitled to EI benefits.

[11] The Employment Insurance Act (Act) says that you can receive EI benefits for each week you are unemployed.^{Footnote 10} A week of unemployment means any week you do not work a full working week.^{Footnote 11}

[12] There is a general presumption that, during any week a claimant is self-employed or engaged in the operation of a business on the claimant’s own account or in a partnership or co-adventure, or is employed in any other employment for which the claimant controls their working hours, the claimant is considered to have worked a full working week during that week.^{Footnote 12}

[13] However, this presumption can be rebutted where a claimant is employed or engaged in the operation of a business to such a minor extent that a person would not normally rely on that employment or engagement as a principal means of livelihood.^{Footnote 13} When this happens, the claimant is, in respect of that employment or engagement, not regarded as working a full working week.^{Footnote 14}

[14] There are six circumstances or factors to be considered in determining whether an employment or engagement in the operation of a business is of “such a minor extent” that the claimant would not normally rely on it as a principal means of livelihood. Those circumstances are a) the time spent; b) the nature and amount of the capital and resources invested; c) the financial success or failure of the employment or business; d) the continuity of the employment or business; e) the nature of the employment or business; and f) the claimant’s intention and willingness to seek and immediately accept alternate employment.^{Footnote 15}

[15] The Federal Court of Appeal (Court) has established the importance of determining whether a person’s level of involvement in their business during their benefit period was such that they would not normally have relied on it as a principal means of livelihood or of earning a living.^{Footnote 16}

[16] It is up to the claimant to prove that their involvement is so limited that the exception about not relying on it as a principal means of livelihood applies.^{Footnote 17} The claimant has to prove this on a balance of probabilities. This means that they have to show that it is more likely than not that their involvement is limited.

[17] The Court tells us that two factors are especially important: the time spent on the work and a claimant’s intention and willingness to immediately accept alternate employment.^{Footnote 18}

Issue 1: Should the Appellant be considered a self-employed person?

[18] I find that the Appellant should be considered a self-employed person.

[19] A “self-employed person” is defined as “an individual who (a) is or was engaged in a business; or (b) is employed but does not have insurable employment by reason of paragraph 5(2)(b) of the Act.”^{Footnote 19}

[20] According to the Appellant, he incorporated the business X in 1994 with two other partners, namely his brother and sister. The business began operating in 1995. It is a family company that is in the home building and renovation business, but especially the renovation business.^{Footnote 20} The business was registered or listed with the Registraire des entreprises du Québec [Quebec’s enterprise registrar].

[21] The Appellant bought one third of the business’s shares.^{Footnote 21} The other two shareholders each bought one third of the business’s shares. The percentage of shares the Appellant holds in the business has stayed the same since its creation.

[22] The Appellant has been the business’s president since its founding.

[23] In his application for benefits, the Appellant indicates that he is not self-employed.^{Footnote 22}

[24] The Appellant says that he owns the business as a shareholder but that he is an employee of the business as a carpenter-joiner, that he receives wages, and that this has always been the case. He indicates that he has lived off his business since its founding.

[25] The Appellant explains that the three shareholders work together to meet with clients, prepare estimates (bids), negotiate contracts, or do invoicing. He says that the three shareholders are involved in keeping the business going and work together to that end.

[26] In his statement to the Commission on April 27, 2021, the Appellant said that he wanted to continue to keep his business operating and to prioritize his self-employment activities. He said that he did not want to work as an employee.^{Footnote 23}

[27] The representative argues that a contract of employment binds the Appellant to the business X.^{Footnote 24} He explains that the Appellant devotes a few hours per week to the administrative management of his business.

[28] According to the representative, the Commission is not taking into account the fact that the Appellant “wears two hats”: as shareholder and employee.^{Footnote 25} The representative points out that this distinction needs to be made, as the Court indicated in one of its decisions.^{Footnote 26} He explains that the Court said the following in that decision:

I believe that the trial judge was also confused about the dual role that Ms. Letendre Fafard played within the company-as an employee to perform certain duties and as a director-shareholder to perform others …. Had it not been for that confusion, the judge would have recognized that Ms. Letendre Fafard, although a shareholder and director of the respondent, “exercised, under the supervision of the payer, duties that were such that there was in reality a relationship of subordination” ….^{Footnote 27}

[29] The representative argues that, to determine whether the Appellant is a self-employed person, the Commission did not take care to find out whether he had a contract of employment or for services with the business X. He argues that, in one of its decisions, the Court explained that it is the Civil Code of Quebec (Civil Code) that determines what rules apply to a contract entered into in Quebec.^{Footnote 28} The representative explains that the Court indicated the following in that decision:

In other words, it is the Civil Code of Québec that determines what rules apply to a contract entered into in Quebec. Those rules are found in, inter alia, the provisions of the Code dealing with contracts in general (arts. 1377 C.C.Q. et seq.) and the provisions dealing with the “contract of employment” (arts. 2085 to 2097 C.C.Q.) and the “contract of enterprise or for services” (arts. 2098 to 2129 C.C.Q.).

[…]

The expression “contract of service”, which has been used in the Employment Insurance Act since its origin and which was the same as the expression used in article 1667 of the Civil Code of Lower Canada, is outdated. The Civil Code of Québec in fact now uses the expression “contract of employment”, in article 2085, which it distinguishes from the “contract of enterprise or for services” provided for in article 2098.^{Footnote 29}

[30] The representative says that the Appellant does not have a contract for services with the business X; he has a contract of employment.^{Footnote 30} He points out that, on the EI website, an independent worker (self-employed person) is defined as “someone who works under a contract for services rather than a contract of service.”^{Footnote 31}

[31] The representative explains that, in a March 28, 2019, ruling affecting the business X, the Canada Revenue Agency (CRA) determined that the Appellant had a contract of employment with this business, not a contract for services.^{Footnote 32}

[32] The representative mentions that, in a letter dated April 15, 2021, the Commission (Service Canada) told the Appellant that it had made a new request to the CRA concerning the insurability of his employment with the business of which he is a shareholder for the period from November 24, 2019, to November 28, 2020.^{Footnote 33} He indicates that, in a letter dated April 20, 2021, the CRA informed the Appellant that it had received a discontinuance request from the Commission (Service Canada) concerning the insurability of the working relationship between him and the business of which he is a shareholder for that period.^{Footnote 34} According to the representative, after realizing that the CRA had made a ruling in the Appellant’s file and that it was bound by that ruling, the Commission discontinued the file.^{Footnote 35}

[33] The representative argues that, at the Commission’s request, the CRA referred to a working relationship, not to a business relationship, to determine the Appellant’s status.^{Footnote 36} According to the representative, when the situation is analyzed using the Civil Code, the Appellant has a contract of employment with the business X, not a contract for services.^{Footnote 37}

[34] The representative argues that the Commission refused to take into account the fact that the Appellant was under a contract of employment, as the CRA determined, and found that he was a self-employed person without referring to the Civil Code.^{Footnote 38}

[35] The representative says that, on its face, the Court’s decision in Jean,^{Footnote 39} which the Commission presents in its arguments,^{Footnote 40} does not conflict with the Court’s decision in Acier Inoxydable Fafard Inc.^{Footnote 41} and that, instead, they should be seen as complementing each other.^{Footnote 42} Also, in his view, a single case cannot replace a strong and consistent line of authority.^{Footnote 43}

[36] The Commission, in turn, argues that, while the representative feels that the case was handled as though the Appellant were the sole shareholder of the business X, the facts show that he is not simply an employee of that business. It explains that the Appellant is involved in managing the business and performs several duties related to its operation, with the goal being for it to generate income.^{Footnote 44}

[37] The Commission says the facts show that the Appellant is prioritizing running his business instead of working as an employee for another employer.^{Footnote 45} It indicates that the Appellant owns a large share in the family business, that he has the role of president, and that he has invested a great deal of money in it.^{Footnote 46} The Commission points out that the Appellant said that he wanted to continue running the business, that he did not want to work as an employee for another employer, and that he would not accept a job that would conflict with running his business.^{Footnote 47} It also mentions that the Appellant acknowledged never having worked for other employers as an employee since the creation of his business.^{Footnote 48}

[38] According to the Commission, while the representative says that it never took care to find out whether the Appellant’s case involved a contract of employment or a contract for services, the facts show that he waits for contracts for the business, not for contracts as an employee.^{Footnote 49}

[39] The Commission argues that the Court indicated the following in Jean:^{Footnote 50}

According to [the applicant or claimant], NCJ Educational Services Limited v Canada (National Revenue), 2009 FCA 131,

[2009] 4 C.T.C. 290, a case decided by this Court, stands for the suppletive character of the civil law. He argues that under civil law, he could not be simultaneously bound both by an employment contract and a contract for services with TDG. In short, he submits that he could not be considered the operator and an employee of the same company.^{Footnote 51}

[40] The Commission argues that the Court gave the following explanation in that decision:

Because the applicant does not meet the Regulations’ eligibility criteria, it was not necessary to distinguish between the employment contract and the contract for services binding him to TDG. The civil law is not applicable in this instance because the Regulations, more specifically Section 30, contain a complete code for determining whether a claimant is operating a business within the meaning of the Act, in which case the claimant is deemed not to be unemployed.^{Footnote 52}

[41] The Commission points out that, in this case, the representative himself cited the definition it gives for an independent worker (self-employed person).^{Footnote 53}

[42] The Commission explains that, in the case of tradespersons, they are generally not entitled to benefits as long as they are performing a contract, but that they can be considered unemployed when they do not have a contract.^{Footnote 54} In its view, that is not the case of a person who seems more concerned with running their business versus simply doing their job.^{Footnote 55} The Commission argues that, to prove their availability, tradespersons not only have to look for contracts, but they also have to look for and be prepared to accept any job opportunities under a contract of service, which is not the case for the Appellant.^{Footnote 56}

[43] The Commission argues that the Act is not designed to subsidize self-employed persons or persons involved in a business; it is intended to pay benefits to those who are unemployed and actively looking for another job.^{Footnote 57}

[44] It says that the Appellant is not just an employee; he is a major shareholder, which sets him apart from the cases the representative cited.^{Footnote 58}

[45] As for the CRA ruling that the representative referred to concerning the insurability of the Appellant’s employment, the Commission says that this ruling has no impact on the decision in this case.

[46] The Commission argues that the Court has established that insurability and entitlement to EI benefits are two different steps that are assessed at different times.^{Footnote 59} It points out that the Court indicated the following in that decision:

If [sic] follows that the CRA’s statement on the applicant’s insurability under Section 90 of the Employment Insurance Act, S.C. 1996, c 23 cannot bind the Canada Employment Insurance Commission in regard to eligibility to [sic] benefits under Section 30 of the Regulations.^{Footnote 60}

[47] In this case, I find that, based on the evidence, the Appellant should be considered a self-employed person in the business of which he is a shareholder and the president. He is involved in the business. The Appellant performs several duties in it to keep it running. He is not just an employee of this business.

[48] Although the representative argues that a distinction needs to be made between the Appellant’s duties as an employee and his role as shareholder in the business, such a distinction does not exclude the fact that he is also a self-employed person due to the way he runs this business and the duties he performs in it. The Appellant’s role in his business is not to be just an employee who has a relationship of subordination with it.

[49] I do not accept the representative’s argument that it is the Civil Code that has to apply to determine whether the Appellant is under a contract of employment or a contract for services with the business X, to decide whether he is a self-employed person and that the Commission did not take this into account.

[50] I find that the fact that the Appellant is performing a contract of employment for his business and that he may have insurable employment within the meaning of the Act does not change the fact that he is a self-employed person.

[51] The Court tells us that, when a claimant does not meet the entitlement criteria in the Employment Insurance Regulations (Regulations), it is not necessary to distinguish whether the claimant is performing a contract of employment or a contract for services.^{Footnote 61} The Court explains that, in such a case, the civil law is not applicable because section 30 of the Regulations contains a complete code for determining whether a claimant is operating a business within the meaning of the Act, in which case the claimant is deemed not to be unemployed.^{Footnote 62}

[52] I also find that the CRA ruling on the insurability of the Appellant’s employment with the business of which he is a shareholder^{Footnote 63} does not show that he should not be considered a self-employed person and that, as a result, he would be entitled to receive benefits. This ruling cannot bind the Commission to its finding that the Appellant is a self-employed person and that he is not entitled to receive benefits.

[53] The Court tells us that insurability of employment and entitlement to benefits are two factors that have to be assessed separately.^{Footnote 64} The question of insurability of employment must be determined by the CRA, while the question of entitlement to benefits must be decided by the Commission.^{Footnote 65} The determination made with respect to insurability cannot be binding on the Commission with respect to that question, and not in determining a person’s entitlement to benefits.^{Footnote 66}

[54] Since I have found that the Appellant is a self-employed person, I now have to assess whether his self-employment is minor enough in extent to establish that he has been unemployed or has not been working full working weeks since November 30, 2020.

Issue 2: Is the Appellant’s self-employment minor enough in extent to establish that he is unemployed or not working full working weeks?

[55] I find that the Appellant’s self-employment is not minor enough in extent to conclude that he has been unemployed or has not been working full working weeks since November 30, 2020, when the Commission disentitled him from receiving benefits.

[56] To determine whether the Appellant is, in fact, unemployed while running his business, I have to analyze the six factors set out in section 30(3) of the Regulations, as identified above.

The time spent

[57] I find that the Appellant is diligently focused on the operations of the business X, as a self-employed person, to rely on it as a principal means of livelihood.

[58] The Appellant explains that the shareholders share the duties between them to run the business, which he describes as a family business. He says that the shareholders all work together to meet with clients, prepare estimates (bids), negotiate contracts with them, or do invoicing. The Appellant points out that the shareholders work together to perform the duties of the business, and he adds that, to do this and to keep the business going, [translation] “we don’t keep track of our time.” He explains that, when you work for a business like the one of which he is a shareholder, you have to give some of your time.

[59] The Appellant indicates that the business operates year-round and that it has been his main source of income since 1995.^{Footnote 67}

[60] The Appellant says that he normally works 40 hours per week, Monday to Friday, from 8 a.m. to 5 p.m.^{Footnote 68} He specifies that, every week, he devotes 2 of those 40 hours to client invoicing.

[61] He explains that, beginning late November 2020, he no longer had any contracts and stopped working. He went back to work, working full weeks (40 hours per week), around mid-February 2021.^{Footnote 69} He says that the business resumed operations in late February 2021.

[62] The Appellant says that, during the period from November 29, 2020, to around February 20, 2021, he therefore devoted two hours per week to running his business, given that he had no work.^{Footnote 70}

[63] The Appellant indicates that, during that period, he performed administrative duties (for example, completing and sending reports to the government or the CCQ) that required almost no time.

[64] The Appellant also indicates that he and the other shareholders looked for clients during that period. The Appellant met with people and would tell them that, if they needed any work done, now was the time, because it was a slow period. He points out that it was a more challenging time in the construction industry because of the COVID-19 pandemic and because work always slows down in this industry during the holidays.

[65] The Appellant explains that he was also waiting for a contract with a client who, in turn, was waiting for a permit to begin renovations.^{Footnote 71} He indicates that he could not have started construction on a house during that period (late November 2020 to mid-February 2021), given that he was waiting to start the contract with the client in question.

[66] In this case, I find that, since November 30, 2020, the Appellant has continued focusing on his business’s operations to rely on it as a principal means of earning a living.

[67] The Appellant explains that he normally devotes 40 hours per week to his business and that it operates year-round.^{Footnote 72} He says that the business has been his main source of income since 1995.^{Footnote 73}

[68] I do not find credible the Appellant’s statement that he devoted only two hours per week to running his business during the period from late November 2020 to mid-February 2021. The fact is that, during that period, the Appellant continued to be a shareholder of his business and to act as a self-employed person for it.

[69] I find that, even though the Appellant says he had no contracts to perform during that specific period or that he was waiting to start a contract, he continued running his business and working full working weeks.

[70] I point out that the Appellant says he met with potential clients during that period, as did the other shareholders, and that he performed administrative duties. He also says that, to run a business like the one of which he is a shareholder, he and the other shareholders do not keep track of their time.

[71] I find that, overall, his involvement in the various duties related to the operation of this business is more than significant and that he did not limit himself to performing two hours of work per week from late November 2020 to mid-February 2021.

[72] I find that, objectively, since November 30, 2020, the Appellant has been very deeply involved in the various duties related to the operation of the business X and that the amount of time he spends on it is not so limited that he would not rely on it as a principal means of livelihood.

The capital and resources invested

[73] Regarding “the nature and amount of the capital and resources invested” (such as money, property, goods, and resources), I am taking into account the fact that, through the business of which he is a shareholder, the Appellant has invested heavily in it.

[74] The Appellant explains that the shareholders made investments totalling $21,000 to start the business.^{Footnote 74} He says that his contribution was in the form of construction machinery and equipment he already had because he was working in that industry. The Appellant indicates that, as a result, he sold or provided the machinery and equipment he had to start the business.

[75] The Appellant explains that the business invests as income is generated. He says that investments were made to acquire mobile equipment (for example, purchase or leasing of trucks, which are replaced after five years) and machinery. The Appellant says that, recently, the business acquired the following equipment: transport truck, two trailers (one open and one enclosed), a tractor for on-site snow clearing, and a telehandler (to make house structures). He says that these investments were made to keep the business running.

[76] The Appellant estimates the value of the business at around $200,000, based on the financial reports submitted. He points out that the business’s assets consist of mobile equipment, which means that this equipment loses a lot of value. The Appellant indicates that the business has an inventory that consists of construction equipment worth about $2,000.

[77] The Appellant indicates that the business has a $40,000 line of credit.^{Footnote 75} He says he is a signer on this line of credit with the financial institution that authorized it.

[78] The Appellant explains that the business has not received any financial assistance or grants or subsidies from the government for its start-up or operation. He says that they have not applied for any. The Appellant explains that he has always been self-reliant and figured that he could start the business with the other shareholders without help. He points out that the work to start the business and get it up and running was done without keeping track of the hours.

[79] In his application for benefits, the Appellant indicates that his home address is the same as the address of his employer (X).^{Footnote 76} The personal email address and phone number shown in the Appellant’s application for benefits are also the same as the business’s email address and phone number.^{Footnote 77}

[80] I find that, objectively, the nature and amount of the capital and resources that the Appellant has invested in his business are very significant. This shows that the Appellant is highly engaged in the business.

The financial success or failure of the employment or business

[81] On the issue of the financial success or failure of the employment or business, I find that the evidence shows circumstances that support the conclusion that the Appellant’s level of involvement in his business is not limited and that he is relying on it as a principal means of livelihood.

[82] The Appellant explains that, for the fiscal year ended May 2020, the business generated gross revenues of $150,000.^{Footnote 78} He specifies that this is not his personal income for 2020; it is the business’s gross revenues. The Appellant explains that amounts paid as wages and business expenses (for example, gas, permits, equipment) have to be deducted from that amount. He says that there is not [translation] “all that much” left after everything has been paid. The Appellant says he does not know what the business’s revenues were for the 2021 fiscal year.

[83] The Appellant explains that he has lived off the business since its founding. He indicates that his pay is about $40 per hour.^{Footnote 79} The Appellant says he receives wages on a weekly basis at the rate set by the CCQ, as is the case for the employees he hires.

[84] The Record of Employment the business issued on December 7, 2020, indicates that the Appellant worked 2,080 insurable hours during his period of employment from February 18, 2019, to November 28, 2020, and that he had earnings of $51,942.32 for that period of employment.^{Footnote 80}

[85] I am of the view that, objectively, the Appellant’s engagement in the operation of the business X shows that the way he runs the business and the employment he has had in it since 1995 is [sic] a success. I find that this situation shows that the Appellant’s level of involvement in his business is not so limited that he would not rely on it as a principal means of earning a living.

The continuity of the employment or business

[86] Concerning “the continuity of the employment or business,” I am taking into account that the Appellant has been consistently contributing to the continuity of the business or of the employment he has had in it since November 30, 2020, and that this business has remained in operation since then. I find that the Appellant’s self-employment for his business is meant to be ongoing.

[87] The Appellant explains that he considers his business to be his main source of income^{Footnote 81} and that he has lived off his business since its founding. He indicates that the business operates year-round but that work slowed down because of the COVID-19 pandemic.^{Footnote 82}

[88] The Appellant explains that, in addition to the work performed by the business’s three shareholders, he hired another employee, in late June 2021. He indicates that this was also the case in 2020, when another employee worked for the business during the period from June to November 2020.

[89] The Appellant explains that the business has no website, that it does not spend on advertising, and that clients are found by “word of mouth.”^{Footnote 83}

[90] The Appellant says he wants to continue to run the business and to carry out his activities in it instead of looking for work as an employee with another employer.^{Footnote 84}

[91] I consider that the fact that the Appellant has worked for his business since its founding, that he relies on employees as needed, and that the business is still running is evidence of the continuity of the employment or of this business.

[92] I find that, objectively, the Appellant is making sustained efforts to run the business X and rely on it as a principal means of livelihood.

The nature of the employment or business

[93] Regarding “the nature of the employment or business,” I am of the view that the type of employment the Appellant has in his business clearly interests him, given that he has worked at this job since 1995 and that he wants to make it his main source of income.

[94] The Appellant explains that he has worked for the business of which he is a shareholder as a carpenter-joiner since its founding. He says he has not worked for another employer since 1995.^{Footnote 85}

[95] I find that, objectively, the nature of the Appellant’s business or of the employment he has had in it since 1995 shows that he wants to rely on this employment or this business as a principal means of livelihood.

The Claimant’s willingness to seek and immediately accept alternate employment

[96] On the matter of “the claimant’s intention and willingness to seek and immediately accept alternate employment,” I am of the view that the Appellant has not shown such an intention or willingness since November 30, 2020.

[97] The Appellant says that, since the start of his benefit period in November 2020, he has not approached other potential employers that are in the construction business to work as an employee.^{Footnote 86} He indicates that he was waiting for contracts for his business and that he remained ready and available to take them on.^{Footnote 87} The Appellant says he wants to continue to run his business and to prioritize his self-employment activities.^{Footnote 88}

[98] The Appellant explains that he is not prepared to prioritize looking for or getting a full-time job that would conflict with his ability to manage his business or to focus on his self-employment activities.^{Footnote 89} He says he would not give up his self-employment activities if offered a full-time suitable job.^{Footnote 90} The Appellant indicates that he does not want to work as an employee.^{Footnote 91}

[99] The Appellant explains that he is in the CCQ’s labour pool, which informs him of job opportunities and lets him know whether employers need workers.^{Footnote 92} He indicates that the CCQ has not informed him that there may be work for him. The Appellant says that the CCQ will contact him if there are needs.

[100] The Appellant indicates that he has never worked for other employers as an employee since his business began operating in 1995.^{Footnote 93}

[101] The representative argues that the Appellant was available for work from late November 2020.^{Footnote 94}

[102] The representative explains that the Appellant was waiting to perform a contract for a client of the business, due to a delay in getting a permit for this client. The representative points out that this situation was beyond the Appellant’s control.

[103] The representative argues that availability for work must be determined by analyzing three factors: 1) the desire to return to the labour market as soon as a suitable job is offered; 2) the expression of that desire through efforts to find a suitable job; and 3) not setting personal conditions that might unduly limit the chances of returning to the labour market.^{Footnote 95}

[104] The representative says that the Appellant has shown his availability for work because he is in the CCQ’s labour pool. He argues that the Digest of Benefit Entitlement Principles indicates that being a member of, or pursuing employment through, a union hiring hall (for example, the CCQ) may be evidence that a claimant is available for work.^{Footnote 96}

[105] The representative argues that the Appellant should be afforded a reasonable interval before accepting suitable employment within the meaning of the Act.^{Footnote 97} He points out that, in 2017, Parliament determined that the provisions specifying what does not constitute suitable employment were better established in the Act so as to align them more directly with jurisprudence established when this concept was in the Act.^{Footnote 98}

[106] The representative points out the contents of several Court and Umpire decisions indicating that a claimant is entitled to a reasonable interval or to wait to be called back to work for a certain period before they have to show they are looking for a job elsewhere to prove their availability for work, taking into account their circumstances.^{Footnote 99}

[107] The representative argues that Umpire decisions indicate that the Act does not automatically require claimants to prove their availability for work through job search efforts and that this is just one circumstance to be assessed among others.^{Footnote 100}

[108] The representative also points out the contents of Umpire decisions indicating that the Commission has to notify a claimant before disentitling them for failing to prove their availability for work.^{Footnote 101}

[109] The Commission, in turn, argues that unemployment and availability are two separate requirements.^{Footnote 102}

[110] It argues that the Appellant must first prove that he is unemployed before arguments about availability for work, an expected callback, job search efforts, and the existence of a reasonable interval can be analyzed.^{Footnote 103} It says that proving that someone is unemployed is the first basic condition for that person to be entitled to benefits under sections 9 and 11 of the Act.^{Footnote 104}

[111] The Commission says that the representative cites Court and Umpire decisions that have more to do with the application of section 18 of the Act, whereas the issue in the Appellant’s case involves unemployment.^{Footnote 105}

[112] The Commission explains that, while a claimant may be available for work, that is not the only decisive factor because the claimant must first prove that they are unemployed and not working full working weeks.^{Footnote 106}

[113] The Commission says that the Appellant has failed to show that he met the first condition, that of being unemployed, so it does not have to determine whether he should have been afforded a reasonable interval.^{Footnote 107}

[114] I find that the Appellant has not shown a willingness to seek and quickly or immediately accept alternate employment since November 30, 2020. He is focusing mainly on his business’s operations as a self-employed person.

[115] I find that his testimony and his statements to the Commission show that his main goal is to work for his business.

[116] I do not accept the representative’s arguments that the Appellant has proven his availability for work and that he should be afforded a reasonable interval before looking for a suitable job, given that his return to work in his business was expected.

[117] I find that the arguments made about these aspects relate to analyzing a claimant’s availability for work, under section 18 of the Act, while the issue is whether the Appellant has shown that he is unemployed within the meaning of sections 9 and 11 of the Act and section 30 of the Regulations, and whether he is working full working weeks.

[118] I point out that, to make this finding, I therefore have to consider six specific factors,^{Footnote 108} including the one used to determine whether the Appellant has shown his “willingness to seek and immediately accept alternate employment,”^{Footnote 109} not assess whether he is available for work within the meaning of the Act.^{Footnote 110}

[119] I note that, as a Tribunal member, I cannot decide an issue that is not before me. The Tribunal can hear only appeals of the Commission’s reconsideration decisions.^{Footnote 111} In this case, the Commission’s reconsideration decision, dated June 7, 2021, deals with unemployment, or weeks of unemployment.^{Footnote 112} So, I have to make a decision on that issue.

[120] I find that the Appellant has not shown his willingness to seek and immediately accept alternate employment.

[121] I also note that, if you are self-employed or involved in a business, the Act assumes that you work full weeks. So, you cannot receive EI benefits.

[122] I find that, objectively, since November 30, 2020, the Appellant’s primary intention has been to work for and run the business X. He chose to focus on work in this business. I cannot consider him willing to seek and immediately accept employment.

Application of factors showing the Appellant’s level of involvement in the business

[123] I have considered all six factors mentioned above. I find that, when these factors are analyzed in connection with the Appellant’s circumstances, and when the objective test under section 30(2) of the Regulations is applied, all these factors point to the conclusion that his engagement in the business is not so minor in extent, since this engagement shows that he wants to rely on it as a principal means of livelihood.

[124] I find that, since November 30, 2020, the Appellant has focused mainly on running his business and has made sustained efforts to keep it running. I also find that the Appellant is prioritizing running his business over his search for a full-time job.

[125] I find that the evidence shows that the Appellant has failed to rebut the presumption that he has been working full working weeks since November 30, 2020.

[126] The Appellant’s level of involvement in his business is not so limited that the exception about not relying on it as a [principal] means of livelihood applies.

Conclusion

[127] I find that the Appellant has been working full working weeks since November 30, 2020. The disentitlement to EI benefits imposed on him from that date for failing to show that he is unemployed is justified.

[128] This means that the appeal is dismissed.