Employment Insurance (Fishing) Regulations (SOR/96-445)

Interpretation

• 1 (1) The definitions in this subsection apply in these Regulations.

  Act

  Act means the Employment Insurance Act. (Loi)

  buyer

  buyer means a person who buys a catch for the purpose of reselling it, either in the form in which it was caught or after processing, and not for the purpose of using it as food, feed or bait. (acheteur)

  catch

  catch means any natural product or by-product of the sea, or of any other body of water, caught or taken by a crew and includes fresh fish, cured fish, Irish moss, kelp and whales, but does not include fish scales or seals, and

  • (a) where only a portion of a catch is delivered to a buyer, means the portion delivered; and

  • (b) where more than one catch or portion of a catch is delivered to a buyer at one time, means the catches or portions that are delivered. (prise)

  crew

  crew means a group of fishers who generally engage in making a catch together or who have actually engaged in making a catch together and, in the case of a single fisher, crew or member of a crew, as the case may be, means that single fisher. (équipage)

  cured fish

  cured fish means the following fish and fish products:

  • (a) salted groundfish, smoked herring, pickled mackerel, pickled turbot, pickled herring, pickled and salted alewives, pickled trout and other pickled fish products; and

  • (b) cod oil and cod livers. (poisson traité)

  employer

  employer means a person included by section 3 as the employer of a fisher. (employeur)

  fisher

  fisher means a self-employed person engaged in fishing and includes a person engaged, other than under a contract of service or for their own or another person’s sport,

  • (a) in making a catch;

  • (b) in any work incidental to making or handling a catch, whether the work consists of loading, unloading, transporting or curing the catch made by the crew of which the person is a member, or of preparing, repairing, dismantling or laying-up the fishing vessel or fishing gear used by that crew in making or handling the catch, where the person engaged in any such incidental work is also engaged in making the catch; or

  • (c) in the construction of a fishing vessel for their own use or for the use of a crew of which the person is a member in making a catch. (pêcheur)

  fishing gear

  fishing gear means any specialized equipment, other than hand tools or clothing, used by a crew exclusively in making a catch. (engins de pêche)

  fresh fish

  fresh fish means fish that is not cured fish. (poisson frais)

  major attachment claimant

  major attachment claimant means a claimant who qualifies to receive benefits and has $3,760 or more of insurable earnings from employment as a fisher in their qualifying period. (prestataire de la première catégorie)

  minimum wage

  minimum wage, in respect of the earnings of a fisher from the catch of a crew, means the minimum wage in effect in the province where the fisher resides on January 1 of the year in which the catch is sold. (salaire minimum)

  minor attachment claimant

  minor attachment claimant means a claimant who qualifies to receive benefits and has less than $3,760 of insurable earnings from employment as a fisher in their qualifying period. (prestataire de la deuxième catégorie)

• (2) An employer who is engaged in work incidental to a catch that is generally performed on shore shall not, at any time, be regarded as a member of the crew that made the catch.

General

2 A person who is a fisher shall be included as an insured person and, subject to these Regulations, the Act and any regulations made under the Act apply to that person with such modifications as the circumstances require.

Determination of Employer

• 3 (1) For the purposes of the Act and any regulations made under the Act, the employer of a fisher shall be any person included as such by this section.

• (2) Where a catch is delivered in Canada to a buyer or to a buyer’s agent by a member of the crew that made the catch, the buyer shall be considered to be the employer of all fishers who are members of that crew and who share in the proceeds from the sale of the catch.

• (3) Where a catch is delivered by a member of the crew that made the catch to a person who is not considered by virtue of subsection (2) to be the employer and the gross returns from the sale of the catch are paid to the head fisher of the crew, or if there is no head fisher, to the agent for selling the catch of the crew,

  • (a) in the case of a head fisher, the head fisher shall be considered to be the employer for all the other fishers who are members of the crew; and

  • (b) in the case of an agent,

    • (i) if the agent is a member of the crew, the agent shall be considered to be the employer of all the other fishers who are members of the crew, and

    • (ii) if the agent is not a member of the crew, the agent shall be considered to be the employer of all the fishers who are members of the crew.

• (4) Where there is a common agent acting at the same time for both the crew and a buyer, that agent shall

  • (a) if the agent is a member of the crew, be considered to be the employer of all the other fishers who are members of the crew; and

  • (b) if the agent is not a member of the crew, be considered to be the employer of all the fishers who are members of the crew.

• (5) An agent referred to in subsection (4) has the right to recover from the buyer the employer’s premiums paid by the agent.

Records, Books of Account and Documents

• 4 (1) The records referred to in section 87 of the Act shall contain, for the purposes of these Regulations,

  • (a) all particulars required for determining

    • (i) whether premiums are payable by the employer,

    • (ii) the earnings of the fishers, and

    • (iii) the dates on which premiums are payable by the employer; and

  • (b) the name, address and Social Insurance Number of each member of the crew and their share of proceeds from the sale of the catch.

• (2) Every person considered by section 3 to be the employer of fishers shall keep all records, books of account and documents in respect of those fishers separately from those the person keeps and maintains in respect of other insured persons.

Determination of Earnings

Earnings from Employment Other Than Employment as a Fisher

4.1 If a period of employment for which insurable earnings have been reported on the record of employment falls partially within the fisher’s rate calculation period, the Commission shall, unless presented by the fisher or the employer with evidence of the amount of insurable earnings actually earned in the rate calculation period, allocate the amount of insurable earnings, not including any insurable earnings paid or payable by reason of lay-off or separation from employment, proportionately over that period of employment, on the basis that the fisher earned the same amount of insurable earnings for each of the seven days of each week.

4.2 The insurable earnings paid or payable to a fisher, during the rate calculation period, by reason of lay-off or separation from employment is the lesser of

• (a) the actual amount of those earnings, and

• (b) the amount calculated in accordance with the following formula:

  A x 0.18

  where

  A

  is the fisher’s insurable earnings during the rate calculation period — not including those referred to in paragraph (a) — paid or payable for the employment that gave rise to the earnings referred to in that paragraph.

Earnings from Employment as a Fisher

• 5 (1) The earnings of a fisher shall be determined as provided by this section.

• (2) The earnings of a fisher are the amount paid or payable to the fisher in respect of a catch, in accordance with the share arrangement, after deducting the value of any portion of the catch not caught by the crew of which the fisher is a member.

• (3) Where a fisher referred to in subsection (2) is a member of the crew and is the owner or lessee of the fishing vessel or fishing gear used by the crew in making the catch, or employs under a contract of service other persons who are engaged in making the catch, the earnings of the fisher are the amount remaining after deducting 25 per cent of the gross value of the catch and after deducting the wages and shares of the other members of the crew.

• (4) For the purpose of applying subsection (2), the value of any portion of the catch not caught by the crew shall be the amount established by the head fisher or, if the agent is the employer, by the agent for selling the catch of the crew.

• (5) For the purposes of these Regulations, the insurable earnings of a fisher are the earnings as determined in accordance with subsections (2) and (3) that are in respect of the qualifying period referred to in subsection 8(4) or (9), as the case may be.

• (6) For the purposes of subsection (5), the earnings of a fisher from a fishing trip that falls partly outside the qualifying period shall be allocated equally to each day of the trip and earnings for days of the fishing trip that precede the first Sunday of the qualifying period shall not be taken into account.

Incomplete Records, Books of Account and Documents

• 6 (1) Where an officer of the Department of National Revenue determines that the records, books of account and documents of an employer of fishers are not, in respect of any of those fishers, sufficiently complete for the purpose of enabling the officer to determine the amount of insurable earnings of the fishers in respect of any period, the amount of the premiums payable and the dates on which they were paid or payable by that employer, the officer shall

  • (a) in respect of any fisher for whom the records, books of account and documents are adequate, determine the fisher’s insurable earnings and the premiums payable in accordance with the Act and the provisions of any regulations made under the Act, other than this section; and

  • (b) in respect of any fisher for whom the records, books of account and documents are inadequate, estimate the insurable earnings in the manner set out in subsection (2) and determine the premiums payable shall be five per cent of those estimated earnings.

• (2) For the purposes of paragraph (1)(b), the officer shall, in respect of any fisher referred to in that paragraph, estimate

  • (a) the period during which any catches of that fisher were made;

  • (b) the number of fishers involved in any catch; and

  • (c) the earnings of the fisher for the period referred to in paragraph (a).

• (3) The aggregate earnings of all fishers for a period estimated in accordance with subsection (2) shall not exceed the gross returns from the sale of all the catches made by the fishers during the period.

• (4) The officer shall, in determining or estimating pursuant to subsections (1) and (2) the earnings in respect of which premiums are payable, exclude the deductions referred to in subsection 5(3) and any earnings that the officer is satisfied have been paid or are payable to a fisher who is not insured or in respect of whom the records, books of account and documents are adequate.

• (5) Notwithstanding subsections (1) and (2), the officer shall, on the first inspection of the records, books of account and documents of an employer, establish the earnings paid or payable in respect of any period to a fisher employed by the employer during the period, on the basis of oral or written information, and determine the insurable earnings and the premiums payable by the employer for the period by applying to the earnings so established the provisions of the Act and any regulations made under the Act, where the employer

  • (a) has not previously been sent a request to keep adequate records, books of account and documents;

  • (b) agrees to keep adequate records, books of account and documents;

  • (c) agrees to make immediate payment of any premiums that the officer, on the basis of any oral or written information, determines are owing; and

  • (d) has acted in good faith.