Self-Employed

II. Principles of Law

(e) Self-employment and Insurable Employment

Under the legislation, benefits are payable to a claimant who qualifies to receive them. One of the requirements that must be met is that he or she first has been employed in insurable employment for a certain period of time during his or her qualifying period.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

However, where a question arises as to the insurability of the claimant's employment, the Commission, the claimant or the employer may apply to the Minister of National Revenue for a determination of the question of insurable employment and the length of that employment.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

Once that question is determined, the Commission must establish the benefit period for the claimant and thereafter benefit is payable to him or her for each week of unemployment that falls in that period.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

The legislation provides that a week of unemployment is a week in which the claimant does not work a full working week. In addition, it creates a presumption that a worker who is engaged in the operation of a business on his or her own account or in partnership or a co-adventure, shall be regarded as working a full working week, unless the claimant establishes that the employment is so minor in extent that a person would not normally follow it as a principal means of livelihood.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

Accordingly, insurability of employment and entitlement to benefits are two factors that the Commission must evaluate in respect of two separate periods. However, Parliament intended the analysis of each of these factors to be subject to separate rules, which must not be confused. The process for determining the insurability of employment is unrelated to that for determining entitlement to benefit.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

The question of insurability must be determined by the Minister of National Revenue, and if an appeal is launched, by the Tax Court of Canada. It relates to the qualifying period. The question of entitlement to benefit however, must be decided by the Commission itself, and if there is an appeal, by the Board of Referees. It relates to the benefit period. The determination made with respect to insurability is not binding on the Commission when it makes its determination with respect to entitlement.

Thibault v. C.E.I.C., May 1, 1997, F.C.J. No. 547 (F.C.A.) A-247-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. D'Astoli, October 24, 1997, F.C.J. No. 1414 (F.C.A.) A-999-96 Judgment Of The Federal Court Of Appeal

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