F. S. v. Canada Employment Insurance Commission

F. S. v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2015-01-19 Neutral citation 2015 SSTGDEI 9 Reference number GE-14-1861 Member Aline Rouleau Division General Division Decision Appeal dismissed Decision Content On this page Persons in attendance and form of hearing Decision Introduction - Statement of facts Issues Applicable law Evidence Submissions of the parties Analysis Conclusion Persons in attendance and form of hearing [1] The Tribunal held a hearing by videoconference on October 21, 2014, for the reasons given in the notice of hearing dated August 11, 2014. A pre‑hearing conference had been held on July 10, 2014. [2] F. S., the Appellant, participated and was represented by counsel Jean‑Guy Ouellet. [3] The Commission Respondent participated and was represented by Hugues Gallagher, business expertise advisor. [4] B. S., the Appellant’s father and witness, and Gaël Morin-Greene, a trainee, also participated. [5] It was agreed at the pre‑hearing conference on July 10, 2014, that files GE-14-1861 and GE-14-1862 would be heard jointly. Decision [6] The Tribunal dismisses the appeal. Introduction - Statement of facts [7] The Appellant had benefit claims established effective September 19, 2010 (file GE‑14‑1861) and effective September 25, 2011 (file GE-14-1862). When he filed these claims, the Appellant completed a self‑employment questionnaire and, according to the information provided, he was given benefits because he was considered unemployed despite his self‑employment. [8] In 2012, the Commission launched an investigation to confirm the Appellant’s unemployment status. [9] In file GE-14-1861, the Commission reconsidered the claim established September 19, 2010, in accordance with subsection 52(5) of the Employment Insurance Act (the Act), having determined that false or misleading statements had been made. A notice of reconsideration was not sent to the Appellant. [10] The Commission determined that the Appellant was involved in the operation of a business, that his involvement or his operation of this business was not to a minor extent and that he failed to demonstrate that he was unemployed. The Commission imposed a disentitlement pursuant to sections 9 and 11 of the Act and subsection 30(1) of the Employment Insurance Regulations (the Regulations), effective September 19, 2010, in file GE-14-1861 and effective September 25, 2011, in file GE-14-1862. [11] The Appellant filed a request for reconsideration of the Commission’s decisions. Following that reconsideration, the Commission upheld the decision to reconsider the claim effective September 19, 2010, rescinded the decisions regarding the penalties and violation imposed, and changed the disentitlement periods related to the unemployment status. [12] The Appellant appealed from the Commission’s decisions. Issues [13] Did the Appellant make false or misleading statements to warrant the reconsideration of the claim established on September 19, 2010, pursuant to subsection 52(5) of the Act? [14] Was the Appellant unemployed within the meaning of sections 9 and 11 of the Act and section 30 of the Regulations on September 19, 2010 (file GE-14-1861) and February 5, 2012 (file GE-14-1862)? Applicable law [15] According to subsection 52(1) of the Act, the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable. According to subsection 52(5) of the Act, if, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim. [16] Section 9 of the Act states that, when an insured person qualifies under section 7 to make an initial claim for benefits, benefits are payable to the person for each week of unemployment that falls in the benefit period. [17] According to subsection 11(1) of the Act, a week of unemployment is a week in which a claimant does not work a full working week. [18] Subsection 30(1) of the Regulations states that, 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. [19] Subsection 30(2) of the Regulations states that “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.” [20] Subsection 30(3) of the Regulations lists six circumstances to be considered in determining whether the claimant’s self‑employment is of a minor extent. The circumstances are as follows: 1- the time spent; 2- the nature and amount of the capital and resources invested; 3- the financial success or failure of the employment or business; 4- the continuity of the employment or business; 5- the nature of the employment or business; and 6- the claimant’s intention and willingness to seek and immediately accept alternate employment. Evidence Evidence in the file from the Appellant [21] In 2010, when the Appellant completed the self‑employment questionnaire (GD3-6 to GD3-9), he said he held 60% of the shares in the partnership Érablière Écologique du Ruisseau Blanc, that his role in this partnership was to monitor the work being done and that he spent less than 15 hours per week on the partnership. He gave the same answer in 2011. [22] In an interview in 2012 with a Commission investigator (GD3-23 to GD3-36 of GE‑14‑1861), the Appellant said that the sugar bush was located on leased Crown land and that he drew no income from the sale of maple syrup because of the boiling contract with another sugar bush owned by Mr. B. During maple syrup season, he went to the sugar bush only on weekends, in the morning to start the generators that sent the sap to the other sugar bush, and in the evening to turn them off. He may tap some trees or repair tubes. Friends performed those tasks during the week. The investments in the business came from his father, B. S., from amounts borrowed and from government grants. At the time of the interview, the Appellant said his business was for sale. [23] During the administrative review, the Appellant said (GD3-314 and GD3-315) he had completely withdrawn from the project in spring 2012. He explained that production absolutely had to be done for spring 2010 because of the business’s five-year plan to meet requirements. He and some friends therefore tapped 2,000 maple trees, collected the sap and boiled it on site. He spent roughly 15 hours a week on the business for a month starting March 15, 2010. In fall 2010, considerable work was done and he spent approximately 30 hours a week on the work. In winter and spring 2011, he also spent some 30 hours a week on the business, placing tubes and tapping, which continued until February 28, and the maple syrup season was from April 1 to 30, 2011. The Appellant confirmed that the 2012 maple syrup season ran from February to late April 2012 and that he spent some 30 hours a week on sugar bush operations. The Appellant said that, on his benefit claims, he never intended to give false information and he did not understand why he had said he spent roughly 15 hours a week on the business during those periods. [24] During the administrative review, B. S., the Appellant’s father, said (GD3‑313) he had been in partnership with his son since 2009 but was involved in the project from the start, a project that was initiated by Mr. B. and the Appellant. Mr. B. S. invested $40,000 in the project in 2006, and $91,000 later to support his son. Since fall 2012, it was Mr. B. who had been operating the sugar bush, as the Fédération des Producteurs Acéricoles had accepted the transfer of operations, and a commitment to buy and sell had been made with Mr. B. after mediation in spring 2012, when the Financière agricole du Québec had blocked restructuring attempts. From December 2009 to April 2012, he did the administrative work for the project, while the Appellant essentially assisted workers on site. Evidence in the file from the Commission [25] In 2008 and 2011, the Appellant was informed by the Commission (GD3-16 to GD3-20) of how his self‑employment affected his benefit claim and that he should indicate whether changes had occurred with respect to the hours spent on self‑employment and the income received from that work. [26] The Appellant provided the Commission with documents related to the business (GD3‑45 to GD3-305). [27] The Commission contacted the agent responsible for the business file at the Financière agricole du Québec (GD3-44), who provided the documents available in the file, including a business plan (GD3-267 to GD3-297) developed by the farm debt mediation service that describes the work completed and to be completed, as well as the funding structure. [28] Because the Commission determined that the Appellant was not unemployed, the disentitlement imposed in file GE-14-1861 on September 19, 2010, resulted in an overpayment of $16,428. A $5,000 penalty was also imposed. A notice of decision was not sent to the Appellant, but he received a notice of debt to inform him of this (GD3‑306 to GD3‑308). In file GE-14-1862, a notice of decision dated December 23, 2013, was sent to the Appellant (GD3-159 and GD3-160), regarding 21 false or misleading statements, a $5,000 penalty and an overpayment. The disentitlement was imposed on September 25, 2011, and the resulting overpayment was $15,984 according to the notice of debt (GD3-161 and GD3-162). [29] Subsequent to the administrative review conducted by the Commission, the penalties that had been imposed were cancelled and the disentitlement periods were changed. For the period starting September 19, 2010, the disentitlement was imposed from September 19, 2010, to April 30, 2011 (GD3-491 and GD3-492). For the period starting September 25, 2011, the disentitlement was imposed from February 5 to April 28, 2012 (GD3-343 and GD3-344). Evidence at the hearing, testimony of B. S. [30] He confirmed that he was the one who had invested in the project and that the three years covered by the statements and business plan of 2010, 2011 and 2012 were in the red because the project was in the planning phase. The Érablière du Ruisseau Blanc is still in business, but is being operated by Mr. B. He also confirmed that the sugar bush was in the process of being sold to Mr. B. He explained the project history from the start and he repeated the statements made earlier. [31] He stated that, for the periods in question, the Appellant could not hope to make this project his principal means of livelihood. Under the funding structure, he was unable to receive a wage. Evidence at the hearing, testimony of the Appellant [32] The Appellant has been a boat captain for about 20 years, in addition to his years of fishing, for a total of roughly 25 years. He is currently a barge captain. When he finished his captaincy at Percé, he went to the unemployment office to find out how he could file his claims as a self‑employed worker. [33] He said that, had a job been offered to him during the periods in question, he would have accepted the job and Mr. B. could have easily found someone else to operate the sugar bush. In 2012, major technical problems occurred and the sugar bush was at risk of failure. He confirmed that the business could not pay him. [34] In fall 2010, considerable work was done on site (roads, clearing and tubes) and he was the person designated to supervise that work. There was an urgency to act in order to meet the deadline of February 28, 2011, imposed for the operating licences. He confirmed the statements made during the administrative review with respect to the hours of work spent on the sugar bush, namely, that he spent approximately 30 hours per week there during the disentitlement periods. Documents and exhibits filed [35] In support of his testimony and allegations, the Appellant filed with the Tribunal: (a) Exhibit GD6: Records of decision and notes from the Commission, and decisions of the Agricultural Marketing Board. (b) GD12: Written submissions from the Appellant to the Tribunal, and decisions of the Agricultural Marketing Board. Evidence at the hearing from the Commission, in response to questions of the Tribunal [36] The Commission opened the investigation into the files under review because of the fact that the Appellant never reported any income, even though he reported that he operated a sugar bush. Based on the documents provided to the Commission over the course of the investigation, it determined that the Appellant’s involvement was much more significant than he had indicated in his reports. [37] The Commission cancelled the penalties that had been imposed because it was difficult to show that the Appellant’s false statements had been made “knowingly,” even though the Commission was not required to show that. The Commission had only to show that false statements were made. [38] For the benefit period starting September 19, 2010, the last week in which benefits were paid was the week of June 12 to 18, 2011. Submissions of the parties The Appellant’s submissions [39] The Appellant, through his representative, submitted three sub-questions about the decision‑making process set out in section 52 of the Act and the limits of its application: (a) Can an addition be made to the decision‑making process set out in section 52 as part of the reconsideration process provided for in section 112 of the Act? The Appellant claims it cannot. (b) If the answer is yes, is the decision made during the reconsideration process subject to the periods set out in section 52 of the Act, and how? The Appellant claims it is. (c) Can the Commission modify or add to its decision after reconsideration by making additional observations after an appeal is filed with the Tribunal’s General Division? The Appellant claims it cannot. [40] As shown in records of decision GD6-11 and GD6-13, the Commission carried out its reconsiderations on October 26, 2010, for the period starting September 19, 2010, and on November 15, 2011, for the period starting September 25, 2011. The details provided later by the Appellant for decision‑making do not support the review of the reconsiderations carried out at that time and the exercise of discretion. Decisions CUB 5664, CUB 37680A, CUB 7382 and A-607-87 were cited in support of this argument. If discretion were used, section 52 does not allow for reconsideration to be carried out retroactively, but only forward. The authority for reconsideration is an extraordinary authority and must be interpreted in a limited manner. The Commission therefore did not have the authority to retroactively reconsider these decisions and, as for the request for reconsideration, that decision should have been rescinded. The failure to do so is an error of law. [41] The Commission’s reconsideration decision on April 4, 2014, does not indicate that the Commission believed false statements were made. It refers only to the disentitlement regarding the unemployment status. It was only in the submissions to the Tribunal that the Commission said it believed such false statements were made. This is the reason for the questions as to whether the Commission could add to a decision by submitting its observations in order to justify exceeding the 36‑month limit because the April 4, 2014, decision could be retroactive only to the date it was received, that is, April 6 or 8, 2011. [42] The facts in the file show that the Commission was always informed by the Appellant of his involvement in establishing a sugar bush. This project encountered legal issues (moratorium) that delayed its start, financial obstacles because the requirements were that B. S. had to be personally involved, and technical problems because production potential was always markedly below expectations. All these obstacles created insurmountable difficulties. The evidence also shows that the capital investment did not come from the Appellant’s financial commitment, but from that of his father, B. S.. According to the financial statements for the periods in question, there were significant losses and the project was a financial failure. The decision of the Agricultural Marketing Board in 2013 authorized only 15,000 taps, thus reducing the potential profitability of the sugar bush. This project was not continued by the Érablière du Ruisseau blanc because another business took over operations in 2012. [43] The evidence shows that the Appellant is a boat captain and that his usual work does not involve the operation of a sugar bush. With respect to the time spent, the Appellant admitted that he spent approximately 30 hours a week on the business, but the average for all the periods in question was less than 15 hours a week. He also alleged that he easily could have been replaced by Mr. B. to have this work done during the periods in question. [44] The Commission admitted that it did not notify the Appellant of its decision or the reasons for its decision. It informed the Appellant only of the amount of the debt resulting from its decision. During the reconsideration process, the Commission allegedly had to consider that its decision‑making process had not been properly completed and that, as a result, the decisions made initially had to be rescinded. In support of that argument, the Federal Court of Appeal decision in Laforest (A-607-87) states that notification is essential to complete the decision‑making process created and must be given within the specified 36‑month period to give the Commission a right of action and recovery. As the Federal Court of Appeal confirmed in Brien and Rajotte (A-426-96, A-780-96, A-781-96, A-783-96), the decision‑making process consists of four steps: the reconsideration of the claim; the decision that the claimant received an amount to which they were not entitled; the calculation of that amount; and the notification to the claimant. These four steps must be completed within the specified 36‑month period. In this case, since the Commission admitted that it did not notify the Appellant of its decisions for the 2010 and 2011 periods, it did not complete the decision‑making process and it was too late to complete it in the reconsideration process. Failing to rescind these decisions was an error of law, as the decision‑making process had not been completed during reconsideration. Therefore, the Tribunal has cause to intervene. [45] Section 112 stipulates that the Commission may reconsider a claim, but in the Appellant’s case, the only notification the Appellant received was notification of the overpayment. The Commission was unable to resume its decision and the incomplete decision‑making process must be penalized. [46] Were the Tribunal to determine that the Commission could reconsider its decision‑making process, the Appellant pointed out that the notification process applies as soon as the reconsideration decision is made. Nevertheless, the Commission could not exceed the 36‑month period. Reconsideration decisions were made on April 4, 2014, received on April 8, 2014, and refer only to the unemployment status, and it was only in its submissions to the Tribunal that the Commission indicated that it believed false statements had been made. [47] The Appellant submitted that he had not made false statements on his initial claims or in his interviews with the Commission. Furthermore, there was no evidence of these false statements and the Commission failed to meet its burden of proof. In support of his argument, the Appellant cited the decisions in Langelier (A-140-01), Caverly (A-211-01), Francella (A‑199-02) and Miller (A‑772-00). A claimant has the right to know which questions they allegedly answered incorrectly, and the Appellant claims that he correctly answered the questions he was asked. [48] The representative submitted that the jurisdiction of the Tribunal’s General Division, like that of the Umpire, is to rule on the decision given by the Commission, not to give the decision that the Commission should have given. To support this, he cited CUB 71479 and Hamilton (A-175-87). [49] With respect to the Appellant’s unemployment status, Inkell (A-280-12) and Martens (2008 FCA 240) have confirmed that not only should the circumstances set out in subsection 30(3) of the Regulations be considered, but it must also be determined whether, in fact, an individual’s activity may constitute their principal means of livelihood. It has been clearly established that no individual, in the periods currently in question, could have hoped to make this activity their principal means of livelihood. The business in which the Appellant was involved is on its way out. The operations of that business do not constitute the work the Appellant normally did as his main source of income. The Appellant’s intention to seek and accept alternate employment was never called into question. The Appellant meets the exception set out in subsection 30(2) of the Act. In response to the Commission’s submissions [50] The Tribunal’s General Division no longer has the parameters that the Board of Referees had. In the Tribunal’s Regulations, there is no differentiation made in section 20 on constitutional issues between the General Division and the Appeal Division. The qualified statements about the Board of Referees in Tétreault-Gadoury no longer appear to be supported because the Tribunal’s Act and Regulations specify joint powers at both levels. [51] With respect to the incongruity of the Appellant’s statements, the Commission referred to an interview conducted on December 4, 2012, and in its report on the administrative review (GD3‑314), it noted and maintained that the Appellant has been in a deplorable physical and mental state since spring 2012. To that effect, the Appellant’s representative referred to Miller (2002 FCA 24), paragraph 20, indicating that a false statement must be put into context. It is clear that the Appellant was not in an appropriate state when these statements were made during the review. With respect to the statements made on his initial claims that, on average, he spent less than 15 hours a week on the business in the year preceding his initial claim, he submitted that these statements are entirely plausible because, for a large part of the year, there was no activity in the business and those claims were made with the help of a Commission officer. [52] Referring to Inkell and Charbonneau, he submitted that the Federal Court of Appeal nonetheless asked, on the notion of a business start-up, whether a claimant can make that business their principal source of livelihood. Perhaps, with respect to this notion of start-up, the recent evolution of the case law may change the future interpretation because, now, the key question is no longer simply the analysis of the six criteria, but whether a person in the same circumstances as the Appellant could make the business their principal source of livelihood. According to the facts before the Tribunal, the answer is no. Submissions of the Commission [53] It was pointed out that, contrary to the allegation made by the Appellant’s representative, the Tribunal’s General Division is at the same level as the former Board of Referees, not the Umpire. Consequently, the Commission may, in accordance with Langlier, explain that there were false statements and reconsider the claim pursuant to 52(5). [54] According to section 112 of the Act, the Commission may reconsider decisions that were subject to administrative review. During the administrative review, the Commission has the power to rescind, uphold or amend any decision rendered. [55] In this case, for the benefit periods established in 2010 and 2011, the Commission amended its decisions regarding the Appellant’s disentitlement period. For the 2010 period, the Commission informed the Appellant that it was upholding its decision on reconsideration, and in the submissions it made to the Tribunal it specified that the reconsideration was completed pursuant to subsection 52(5) because the Commission determined that false or misleading statements had been made. [56] The Commission described the Appellant’s initial statements, namely, that he spent 15 hours or less per week on the operation of his business. The Appellant had been notified in 2008 and in 2011 that any change to his activities and to the time spent could result in amendments to the decisions. The Appellant had stated that his father and friends were taking care of the sugar bush during the maple syrup season. During the Commission’s administrative review, it discovered that these statements were incorrect. [57] During the administrative review, the Commission asked the Appellant to explain how there could have been so many invoices completed by him when he spent only a few hours on the business. He confirmed that during the periods in question he spent roughly 30 hours a week on the business. His involvement was therefore much more significant than he initially reported. The Appellant’s father confirmed that the Appellant’s investment in the business was in time and effort. B. S. also confirmed that the Appellant was responsible for supervising the numerous work projects that were completed in fall 2010. All the documents produced show the extent to which the Appellant was involved in the business. The Commission was right to reconsider all the Appellant’s benefit claims pursuant to subsection 52(1) within the prescribed 36 months and pursuant to subsection 52(5) in the 36‑ to 72-month period. [58] For the 2012 period, the Commission did not find credible the Appellant’s statement at the start of the hearing to the effect that he could have been replaced or have subcontracted the work to be done, considering the report of Paul Martin, which stated that the business did not have the financial means to pay the Appellant or to pay to have the work subcontracted. [59] For all these reasons, the Commission judicially exercised its discretion to reconsider the benefit claims established in 2010 and 2011. [60] The Commission noted errors in the notification form issued to the Appellant, but he was in fact notified that he could no longer be considered unemployed because of his self‑employment, and he received a notice of debt to that effect. [61] With respect to the unemployment status under sections 9 and 11 of the Act and section 30 of the Regulations, the Commission determined that the time spent by the Appellant was much more significant than he reported on his benefit claim and during the investigation. During the periods in question, the Appellant actively participated, by either doing work, supervising work, producing maple syrup or implementing its production in spring 2011 and 2012. It serves no point to claim that he could have been replaced when, according to the facts, he was there. [62] With respect to the financial success or failure of the business: Today, it is clearly understood that, at the end of the 2012 maple syrup season, a decision was made not to continue operations, but rather to transfer them to Mr. B. But when Mr. Martin’s report was written, it indicated that B. S. and F. S. (father and son) wished to continue operating the sugar bush. [63] For the Commission, it was clear that false statements had been made during the periods in question, that benefit claims had to be reconsidered and that, during the periods of disentitlement imposed, the Appellant was not engaged in operations to the minor extent required by section 30 of the Regulations. In response to the Appellant’s submissions [64] When the Tribunal was formed, all decisions that were to be heard by an Umpire were transferred to the Tribunal’s Appeal Division. Therefore, this means that the Tribunal’s General Division is at the same level as the former Board of Referees. [65] With respect to the statements made by the Appellant during the administrative review and his physical and mental health, the Commission did not rely on these statements made in 2012 when making its decision regarding false statements, but rather relied on the statements made on the initial benefit claims when the Appellant reported that he spent 15 hours or less on the business each week. It is clear that, in operating a seasonal business, the time spent will be more significant during the period of operation, and one cannot refer to hours spent as an average over the year. The periods in question are those in which the Appellant’s involvement was direct and significant. They are the periods that resulted in his disentitlement. Analysis [66] Because the events are identical in both of the Appellant’s files, the appeals will be subject to a single decision that will apply mutatis mutandis. On the matter of jurisdiction [67] Because the Appellant’s representative seemed to draw a parallel between the jurisdiction of the Tribunal’s General Division and the jurisdiction of the Umpire under the former appeal process, and because the Commission’s representative reacted rather strongly to that statement, it gave the Tribunal cause to shed some light on this point, even though this argument is not relevant to the issues currently at hand, hoping that it would be understood that there is no further cause for such an argument. [68] The Tribunal was created pursuant to section 44 of the Department of Employment and Social Development Act. Section 52 of that Act states that an appeal of a decision must be brought to the General Division. Section 54 determines its general powers, and subsection 64(1) gives the Tribunal the power to decide any question of law or fact that is necessary for the disposition of any application made under this Act. [69] Section 20 of the Social Security Tribunal Regulations specifies a question of law or constitutional validity that the Tribunal may decide. Section 24 of the same Regulations states that an appeal to the General Division must be brought by submitting a copy of the decision made under section 112 of the Employment Insurance Act. [70] Section 112 of the Employment Insurance Act is not an appeal stage, but rather a review mechanism whereby the Commission reconsiders a decision it made. Section 113 of the Act indicates that the appeal of a decision made under section 112 may be brought to the Tribunal’s General Division pursuant to section 24 of the Tribunal’s Regulations. [71] Therefore, the Tribunal’s General Division, like the former Board of Referees, is the first level of appeal from a decision of the Commission. However, any comparison or parallel ends there, as the powers given to this General Division are different from those of the Board of Referees. Expanded powers of the General Division cannot infer comparison with a different appeal level, such as that of the Umpire. On the Commission’s reconsideration power under section 52 of the Act [72] For the sake of brevity, the Tribunal will summarize as follows the Appellant’s allegations on this point before proceeding with the analysis itself: He claimed that the Commission carried out its reconsiderations on October 26, 2010, for the period starting September 19, 2010, and on November 15, 2011, for the period starting September 25, 2011; that these reconsiderations resulted in records of decisions granting benefits to the Appellant; therefore, that the Commission could not carry out a second reconsideration based on details provided after this reconsideration and complete it during the administrative review by changing its decisions; and that section 112 of the Act does not permit the Commission to complete a deficient decision‑making process because the Appellant was not notified of the reconsideration, or to issue a new decision. The Appellant also submitted that the reconsideration process must follow the key steps imposed, as confirmed by the Federal Court of Appeal in applying a restrictive interpretation to the reconsideration power under section 52 of the Act; and that, in addition, since the Commission had recognized the Appellant’s entitlement to receive benefits at the time that each of his statements were made, the Commission’s decision could be effective only for the future. [73] The Tribunal refers to some excerpts of the Federal Court of Appeal’s decisions in Brien and Rajotte (A-425-96 et al. and A-426-96 et al.) rendered under the authority of section 43 of the former Unemployment Insurance Act, now section 52 of the Employment Insurance Act, and on which, among others, the Appellant based his position: Page 4 of the decision: “It is necessary, therefore, to avoid giving the Brière and Laforest judgments a meaning they cannot bear. This Court has, it is true, stated that the decision-making process under section 43 includes four stages: the reconsideration of the claim for benefit, the decision (which I will refer to as the overpayment decision) that the claimant has received a sum to which he was not entitled, the calculation of that sum (which I will refer to as the overpayment calculation), and the notification to the claimant. The Court has also stated that these four stages should be completed within the thirty-six months stipulated by subsection 43(l).” End of page 4 of the decision: “It matters little, in these circumstances, whether the different steps prescribed in subsection 43(l) were taken on the same day or whether the claimant was informed of the various decisions taken in his regard as they were taken or at the very end of the process, or whether these decisions were recorded in a single document, since in any event the only time that matters is the time when the process is completed, that is, the time when the claimant is notified by the Commission of the amount of the overpayment.” (Emphasis added) [74] According to these judgments of the Court, the Appellant’s argument that the Commission used a deficient decision‑making process because it did not notify the Appellant of the reconsideration of file GE‑14‑1861 cannot be accepted. A notice of debt resulting from the decision was sent to him. It is difficult to believe that the Appellant was unaware of the Commission’s reconsideration when he was invited on November 19, 2012, to a telephone interview that took place on December 4, 2012. [75] The notice of debt was sent on December 28, 2013. It can be presumed that the Appellant received it in early January 2014. The last benefits paid in the period starting September 19, 2010, were paid for the week of June 11 to 18, 2011. Under subsection 52(1) of the Act, the Commission would have until the week of June 11 to 18, 2014, to reconsider the claim in accordance with the 36‑month period prescribed, but could not, after this period, recover the benefits received prior to January 2011 unless it determined, pursuant to subsection 52(5), that false or misleading statements were made. It did make this determination, and the Tribunal will address it later on. In such a case, the Commission may reconsider the claim within 72 months after benefits were paid or payable. [76] With respect to the Appellant’s argument that the Commission carried out its reconsideration on October 26, 2010, and November 15, 2011, that the Commission cannot carry out a reconsideration twice and that, because of this, the second reconsideration corresponds to the review set out in section 112 of the Act, the Tribunal cannot accept this interpretation of section 52. Nowhere does that section state that the reconsideration process is limited in any way other than its time frame. Moreover, for the review process under section 112 to apply, a request must have been made by the person subject to a decision of the Commission. The review process provided for in section 112 cannot be initiated by the Commission. [77] Under section 52 of the Act, the Commission has the authority to reconsider a claim, which may result in a new “initial” decision that could be subject to a reconsideration in accordance with section 112 of the Act. These two processes are separate. Since the process for reconsidering a claim and reconsidering a decision are separate, the periods set out in section 52 of the Act cannot apply to the reconsideration process in section 112. If Parliament had wanted to prescribe the same time frames for both processes, it would have clearly said so. On the false or misleading statements [78] Pursuant to section 52 of the Act, it may be necessary to amend or to retroactively correct a decision concerning a benefit claim in order to ensure that claimants receive only the benefits to which they are entitled. According to subsection 52(5), if, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim. [79] The Appellant submitted that the Commission’s reconsideration decision given on April 4, 2014, does not show that the Commission believed that false or misleading statements had been made in order to reconsider the Appellant’s claim within 72 months pursuant to subsection 52(5) of the Act. This is mentioned only in the written submissions made after the appeal was filed with the Tribunal. Because of this, he claimed that the Commission could not amend or complete the reconsideration decision to justify extending the 36‑month period set out in subsection 52(1) and that he should have been informed that the Commission intended to rely on subsection 52(5). [80] Yet, in file GE‑14‑1861, the notice of debt indicates that a penalty was imposed and, on his request for reconsideration, the Appellant indicated that he was disputing [translation] “all decisions rendered on December 23, 2013, for the years 2007 and following.” A penalty can be imposed only if an act or omission, such as a false or misleading statement, was committed pursuant to section 38 of the Act. The notice of decision in file GE‑14‑1862 clearly indicated that the Commission believed false or misleading statements had been made. It is therefore not believable that the Appellant could not have known the Commission’s position, especially with the assistance of his representative, even though the Commission’s approach was unusual and could have been clearer. [81] The Appellant claimed that the Commission did not meet its burden of proof regarding false statements. It is worth recalling here that the penalty that had been imposed was cancelled during the administrative review. [82] The Tribunal refers to Dussault 2003 FCA 372, in which the Federal Court of Appeal established that, in order to rely on subsection 52(5), the Commission does not have to establish that a false or misleading representation was made knowingly or that it was subject to penalty. This burden is imposed with respect to a penalty. All that Parliament requires in subsection 52(5) is that, in the “opinion” of the Commission, a false or misleading statement was made. “Of course, in order to arrive at this conclusion the Commission must be reasonably satisfied that ‘a false or misleading statement or representation has been made in connection with a claim’” (paragraph 12 of the decision) and it must explain why it believes the statement was false. In this case, the Commission gave its explanations, following the investigation conducted and documents submitted, for deciding that a false statement had been made. The alleged falsity arose from the Appellant’s failure to report the time spent on his business during the disentitlement periods imposed, especially since the Appellant himself admitted to having spent roughly 30 hours per week during those periods. [83] The Tribunal is satisfied that the Commission reconsidered the file for the period starting September 19, 2010, within the time limit prescribed by subsection 52(5) of the Act. On the unemployment status [84] When a claimant operates a business pursuant to section 30 of the Employment Insurance Regulations, it is up to the claimant to rebut the presumption that they worked a full working week (Federal Court of Appeal decisions A-662-97 and A-664-97). The circumstances to be analyzed in order to confirm or rebut the existing presumption are set out in subsection 30(3). [85] When it is determined, in accordance with subsection 30(2), that the claimant’s engagement in the operation of the business is to a minor extent, the claimant is not considered to have worked a full working week. [86] It must be determined whether the Appellant’s activities in the business correspond to activities that would normally be done by a person who is operating a business or simply those of a person who is interested, in a perfectly natural way, in an investment. What is his level of participation? All the circumstances must be examined in order to get an overall picture of the situation. [87] The Appellant submitted that he met the exception set out in subsection 30(2) of the Regulations and argued that the recent evolution of the case law has made the notion of “principal livelihood” the key question, rather than the six factors for analysis set out in subsection 30(3) of the Regulations. [88] The Tribunal does not have the same understanding of the cases to which the Appellant referred. In Inkell (2012 FCA 290), the Federal Court of Appeal confirmed the principles previously established. This case was an application for judicial review in which the Court referred the matter back to a lower level to have the test set out in subsection 30(2) of the Regulations applied based on the analysis of the six circumstances in subsection 30(3) of the Regulations. Goulet (2012 FCA 62) is an application for judicial review on consent of the parties, which refers to Martens v. Canada (AG) (2008 FCA 240) and which referred the matter back for a new hearing on the unemployment status. Martens established that an analysis of the circumstances set out in subsection 30(3) must be performed to make a determination on the test set out in subsection 30(2) of the Regulations. The predominance that the Appellant would like to give to the notion of “principal livelihood” need not be addressed. Care must be taken to carefully read the legislation in order to validate a personal interpretation that caused the Appellant to lose sight of the issue presented and the response given by the Court. [89] The Tribunal believes it necessary here to point out the disentitlement periods imposed on the Appellant following the Commission’s administrative review. For the benefit period established September 19, 2010, the disentitlement was imposed from September 19, 2010, to April 30, 2011, during the execution of work necessary for the operation of the sugar bush up to and during the time of the operating season. For the benefit period established on September 25, 2011, the disentitlement was imposed from February 5 to April 28, 2012, during the operating season. [90] The Tribunal will now move on to the analysis of the circumstances set out in subsection 30(3) of the Regulations. [91] The nature of the business. In this case, the nature of the business is a key element. This is a sugar bush that, by definition, is operated only during a limited period of the year. This type of seasonal operation colours the analysis of the subsequent circumstances that can be performed only on the basis of a full year, which would falsify the applicable test. [92] The time spent. The Appellant admitted that, during the disentitlement periods, he had spent some 30 hours a week on the business. This is not the involvement of a simple investor, but rather reflects the Appellant’s interest and intention regarding the success of the business. [93] The nature, amount of capital and other resources invested. The business is operated as a legal partnership, of which the Appellant holds 60% of the shares. In this type of business, a partner may participate in the partnership through their work, whereas another may participate by providing capital. The Appellant’s father confirmed that he provided funds, while the Appellant invested time and effort in the business. This work and effort have the value of invested capital, a value that is not insignificant. [94] The financial success or failure of the business and the continuity of the business. For various reasons, the Appellant’s operation of this business was unsuccessful. But it is not because of a lack of effort to make it a success, as demonstrated by the restructuring and refinancing plan prepared by Mr. Martin of the farm debt mediation service. The business’s operations were not dissolved, but rather were transferred to a new owner. [95] The Appellant’s intention and willingness to seek and immediately accept alternate employment. The Tribunal was not satisfied that, during the imposed disentitlement periods, the Appellant sought alternate employment that he would have immediately accepted. He said he was affected by the financial turn of events, which probably motivated him to do everything in his power to prevent his father from experiencing losses. Moreover, the restructuring and refinancing plan did not mean he could end his involvement in the business by accepting alternate employment. On the contrary, this plan required even more from him. [96] With respect to the exception provided for in subsection 30(2) of the Regulations, the Appellant claims that he met the exception on the basis of his personal annual income and that, because of the business’s accumulated yearly losses, it is clear that the financial losses could not constitute a principal means of livelihood. The Appellant wants the Tribunal to stick to the letter of what appears on the financial documents of the business. But, given the Appellant’s involvement and efforts, and were it not for the constraints experienced, the operation of a sugar bush may constitute a person’s principal means of livelihood during the operating season. [97] All the circumstances and the overall view of the Appellant’s situation do not support the determination that, based on the facts, between September 19, 2010, and April 30, 2011, and between February 5 and April 28, 2012, he was unemployed. The Tribunal concludes rather that the Appellant was not unemployed during these periods and upholds the Commission’s decisions. Conclusion [98] The appeal is dismissed with respect to the reconsideration of the claim starting September 19, 2010, pursuant to subsection 52(5) of the Act, and also with respect to the unemployment status.