Self-Employment

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-03
CLNP Page ID:	2039
Page Categories:	Employment Insurance
Citation:	Self-Employment, CLNP 2039, <https://rvt.link/2f>, retrieved on 2024-05-03
Editor:	MKent
Last Updated:	2022/12/31

Employment Insurance Regulations (SOR/96-332)

Self-employed Person Working a Full Working Week

30 (1) Subject to subsections (2) and (4), where 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 in which the claimant controls their working hours, the claimant is considered to have worked a full working week during that week.

(2) Where a claimant is employed or engaged in the operation of a business as described in subsection (1) to such a minor extent that a person would not normally rely on that employment or engagement as a principal means of livelihood, the claimant is, in respect of that employment or engagement, not regarded as working a full working week.

(3) The circumstances to be considered in determining whether the claimant's employment or engagement in the operation of a business is of the minor extent described in subsection (2) 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.

(4) Where a claimant is employed in farming and subsection (2) does not apply to that employment, the claimant shall not be considered to have worked a full working week at any time during the period that begins with the week in which October 1st falls and ends with the week in which the following March 31 falls, if the claimant proves that during that period

(a) the claimant did not work; or

(b) the claimant was employed to such a minor extent that it would not have prevented the claimant from accepting full-time employment.

(5) For the purposes of this section, self-employed person means 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.

Week of Unemployment — Self-employed Person

30.1 For the purposes of Part VII.1 of the Act, a week of unemployment for a self-employed person is, despite section 30, a week in which the person reduces the time devoted to their business activities by more than 40% of the normal level.

30.2 For the purposes of subsection 152.03(4) of the Act, a self-employed person is deemed to be not working if they are not engaged in

(a) the normal activities of their business; and

(b) the normal activities for the continuation of their business.

Marlowe v. Canada (Attorney General), 2009 FCA 102 (CanLII)

[3] If a claimant is self-employed or engaged in the operation of a business on his or her own account (“self-employment”) during any week in a benefit period, subsection 30(1) of the Regulations deems that claimant to have worked a full working week during that week. As a result, that week will not be considered to be a week of unemployment for the purposes of section 9 of the Act. Subsection 30(2) of the Regulations provides an exception to the deeming rule in subsection 30(1) of the Regulations where the self-employment is minor in extent. The issue in this application is whether that exception applies to Mr. Marlowe.

Martens v. Canada (Attorney General), 2008 FCA 240 (CanLII)

[26] Subsection 30(2) will negate the application of subsection 30(1) where a claimant is self-employed or engaged in the operation of a business to a minor extent. The test for minor self-employment or engagement in business operations requires a determination of whether the extent of such employment or engagement, when viewed objectively, is so minor that the claimant would not normally rely on that level of engagement as a principal means of livelihood. Subsection 30(3) requires six factors to be considered in determining whether the claimant’s self-employment or engagement in the operation of the particular business is minor in extent. These factors represent a codification of the six factors outlined in Re Schwenk (CUB 5454).

(...)

[28] In interpreting these provisions, it is important to consider that their objective is the determination of the extent of the self-employment or engagement in a business by a claimant in any given week in a benefit period that has been established pursuant to section 9 of the Act. If such self-employment or engagement is minor in extent, then the claimant will have overcome the presumption contained in subsection 30(1) and will not be regarded as having worked a full working week during that week.