[OFFICIAL ENGLISH TRANSLATION]
Date: 20020221
Docket: 2000-1101(EI)
BETWEEN:
NATIONAL BANK OF CANADA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre, J.T.C.C.
[1] This is an appeal from a decision
by the Minister of National Revenue ("Minister") made under the
Employment Insurance Act ("Act") by which it was
determined that Lise Messier-Lafleur had received insurable
earnings totalling $16,677 while in the service of the appellant
during the period from November 28, 1997, to
November 28, 1998.
[2] According to the appellant, the
aforementioned sum does not constitute insurable earnings within
the meaning of subsection 2(1) of the Act and of
paragraph 2(1)(a) of the Insurable Earnings and
Collection of Premiums Regulations
("Regulations"). The relevant provisions of the
Act and Regulations read as follows:
Employment Insurance Act
2. (1) In this Act,
"employer" includes a person who has been an employer and, in
respect of remuneration of an individual referred to as sponsor
or co-ordinator of a project in paragraph 5(1)(e),
it includes that individual;
"insurable earnings" means the total amount of the earnings,
as determined in accordance with Part IV, [Insurable Earnings and
Collection of Premiums] that an insured person has from insurable
employment;
Insurable Earnings and Collection
of Premiums Regulations
INTERPRETATION
1. (1) The definitions in this subsection apply in these
Regulations.
...
(2) For the purposes of Part IV of the Act and for the purposes
of these Regulations, "employer" includes a person who pays or
has paid earnings of an insured person for services performed in
insurable employment.
PART I
INSURABLE EARNINGS
Earnings from Insurable Employment
2. (1) For the purposes of the definition "insurable earnings"
in subsection 2(1) of the Act and for the purposes of these
Regulations, the total amount of earnings that an insured person
has from insurable employment is
(a) the total of all amounts, whether wholly or partly
pecuniary, received or enjoyed by the insured person that are
paid to the person by the person's employer in respect of
that employment, and
...
(3) For the purposes of subsections (1) and (2), "earnings"
does not include
(a) the value of board, lodging and all other benefits
received or enjoyed by a person in a pay period in respect of the
employment if no cash remuneration is paid to the person by the
person's employer in respect of the pay period;
(a.1) any amount excluded as income under
paragraph 6(1)(a) or (b) or subsection 6(6) or
(16) of the Income Tax Act;
(b) a retiring allowance;
(c) a supplement paid to a person by the person's
employer to increase worker's compensation paid to the person
by a provincial authority;
(d) a supplement paid to a person by the
person's employer to increase a wage loss indemnity payment made
to the person by a party other than the employer under a wage
loss indemnity plan;
(e) a supplemental unemployment benefit payment
made under a supplemental unemployment benefit plan as described
in subsection 37(2) of the Employment Insurance
Regulations; and
(f) a payment made to a person by the person's employer
to cover the waiting period referred to in section 13 of the Act,
or to increase the pregnancy or parental benefits payable to the
person under section 22 or 23 of the Act if the payment meets the
criteria set out in section 38 of the Employment Insurance
Regulations.
Facts
[3] The facts admitted by the parties
read as follows:
[TRANSLATION]
Ms. Messier-Lafleur was employed by the [National Bank of
Canada] NBC from June 11, 1992, to September 3, 1999,
as a customer service officer;
Based on her regular schedule, Ms. Messier-Lafleur held a
permanent part-time position working approximately 20 hours a
week;
However, during the period from December 1995 to September
1966 [sic], Ms. Messier-Lafleur was on a temporary
assignment working 37½ hours a week;
During that period, Ms. Messier-Lafleur continued to be
an employee with regular part-time status, but she worked a
number of hours equivalent to the hours of regular full-time
employees;
Although Ms. Messier-Lafleur's temporary assignment was
to continue until September 1996, she had to stop working in May
1996 because of heart failure;
In view of her inability to perform her work,
Ms. Messier-Lafleur was eligible for a weekly disability
pension, the whole in accordance with the short-term disability
plan, which NBC offers its employees;
After 26 weeks of disability, Ms. Messier-Lafleur became
eligible for a disability pension for a period of 24 months if
she was unable to perform her work;
Beyond the first 30 months of disability, she had to be unable
to perform any work to be entitled to a pension until the age of
65;
Thus, at the start of her disability, Ms. Messier-Lafleur
filed a claim for benefit with Financière;
Ms. Messier-Lafleur's application for disability
compensation was processed in accordance with the application
processing procedure provided for in the plan;
For the first 6 months of her absence,
Ms. Messier-Lafleur received weekly compensation from
Financière under the disability plan;
After that period, Ms. Messier-Lafleur applied for
benefits under the long-term disability plan;
Thus, from May 1996 to November 1998, Ms. Messier-Lafleur
received short- and long-term disability benefits for
approximately 30 months;
Thus, for the period in issue, that is from November 28,
1997, to November 28, 1998, Ms. Messier-Lafleur
received a disability pension of $1,389.74 per month paid
directly by Financière;
In accordance with the plan, the pension was calculated using
the reference salary of the short-term benefit annualized and
divided by 12;
The last 6 months of Ms. Messier-Lafleur's active work
were in fact performed under a full-time temporary assignment,
even though she was a part-time employee;
Under the plan, Ms. Messier-Lafleur was entitled to 75%
of the amount thus obtained for the period from December 1996 to
November 1998;
The average number of hours for that 26-week period prior to
the disability was 36.2 hours per week;
Ms. Messier-Lafleur's wage was $11.81 an hour;
The wage of $11.81 multiplied by 36.2 hours multiplied by 52
weeks, divided by 12 months equals an average monthly salary of
$1,852.60;
Under the long-term disability plan, Ms. Messier-Lafleur
was entitled to a monthly benefit of 75% of that amount, that is
$1,389.45, which is almost exactly the benefit she received from
Financière;
During the period in issue, Ms. Messier-Lafleur worked
294 hours at NBC under an occupational rehabilitation program
agreed upon between Ms. Messier-Lafleur, her physician
and Financière;
The plan specifically provides for occupational
rehabilitation, which is then considered a rehabilitation
activity deemed salutary for the member;
Thus, under that occupational rehabilitation program,
Ms. Messier-Lafleur worked 294 hours between
November 28, 1997, and November 28, 1998;
Ms. Messier-Lafleur did not receive a salary for those
hours from NBC;
As a result of a decision by Financière in which NBC
did not participate, benefits ceased on November 28, 1998,
after 30 months of disability, because Financière
considered that, although Ms. Messier-Lafleur was unable to
perform her work, she was nevertheless able to hold
employment;
As a result of this decision by Financière,
Ms. Messier-Lafleur did not resume working at NBC, but
nevertheless remained an employee of NBC until September 1999,
when she was dismissed for administrative reasons, as a result of
a lack of work corresponding to her limitations;
It appears from the file that, as a result of
Financière's decision to stop paying
Ms. Messier-Lafleur disability benefits, she filed an
employment insurance application with Human Resources Development
Canada (hereinafter "HRDC") on November 28, 1998;
HRDC applied to Revenue Canada for a decision concerning the
insurability of Ms. Messier-Lafleur's employment during the
period from November 28, 1997, to November 28,
1998;
By a decision dated March 4, 1999, the Tax Services
Office of Revenue Canada concluded that Lise Messier-Lafleur had
held insurable employment within the meaning of
subsection 5(1) of the Employment Insurance Act
during the period from November 28, 1997, to
November 28, 1998, and that her insurable earnings for the
last 7 months of the period in issue were $9,728.18, the whole as
appears from that decision, Exhibit A-1;
On June 1, 1999, NBC asked the Appeals Division to review
that decision. The reasons in support of that application
for review are stated in a letter dated November 15, 1999,
to Jean-Pierre Houle of the Appeals Division, filed jointly,
Exhibit A-2;
On December 8, 1999, the Appeals Division of Revenue
Canada rejected NBC's application for review on the ground that
insurable earnings for the purposes of Ms. Messier-Lafleur's
employment insurance for the period from November 28, 1997,
to November 28, 1998, were $16,677, Exhibit A-3;
[4] In addition to the aforementioned
facts, the appellant called as a witness
Rémi St-Germain, a standards and services specialist
with Financière Manuvie ("Financière") and Claude
Plante, an analyst with the social benefits service at the
National Bank of Canada, to explain the insurance plans enjoyed
by the appellant's employees. The respondent had Lise
Messier-Lafleur testify briefly as to her ability to work when
she returned to the job on occupational rehabilitation
recommended by Financière during the period in issue.
[5] Mr. St-Germain explained that
the appellant's employees were covered by an insurance plan
designed to provide wage replacement or compensation for
financial losses to employees who are suffering from a temporary
or permanent total disability. The appellant opted for an
"administrative services only" or ASO (in French,
"services administratifs seulement") plan with
Financière. An ASO contract is defined in the
presentation of the plan in effect between the appellant and
Financière as follows (Exhibits A-4 and A-5, at page
4):
[TRANSLATION]
ASO contract: contract entered into between the
employer and Financière Manuvie under which
Financière Manuvie represents the employer and agrees to
provide it with certain administrative services relating to the
plan, although this arrangement does not release the employer
from its obligations.
[6] Mr. St-Germain explained
that, in an ASO insurance plan, the employer funds the entire
plan (without a contribution from the employee) and alone bears
the cost of benefits to disabled employees. Thus, under
this type of plan, the employer retains the administrative
services of an administrator (in this case, Financière),
which is remunerated for the administrative services it renders
in the form of commissions estimated on the basis of the
anticipated impact of claims and on the number of employees. The
services consist in administering the benefit claims received
from employees who cease working because of disability.
This kind of plan differs from a regular insurance plan, in which
the insurer charges the employer a schedule of rates for
insurance coverage for employees based on their age or other
criteria generally used for an insured group.
[7] Mr. St-Germain testified that
an ASO plan offers the benefit of ensuring a higher degree of
impartiality regarding the benefit claims submitted by
employees. Since the employer funds the insured group and
the payment of insurance benefits to employees, the insurer,
which acts solely as administrator, thus concentrates only on
eligibility for benefits from a purely objective standpoint, that
is from a medical standpoint (not from a more subjective
standpoint related, inter alia, to its finances, since the
employer, not the insurer, is financially responsible for the
plan). The insurer plays the role of an administrator and
takes all action necessary to manage a disability case. It
is remunerated for this under the terms it has negotiated with
the employer.
[8] For the employer, an ASO plan is
also more advantageous in that it pays the insurer based on the
experiences of the current year as opposed to a non-ASO insurance
plan, in which the schedule of rates charged to the employer is
prepared by the insurer based on the experience of previous years
(which implies that the premiums charged to the employer may be
higher under an ASO plan).
[9] In an ASO insurance plan, as in a
regular insurance contract, the employer determines the
percentage of salary and the period it wishes to cover in an
employee disability case.
[10] In the instant case, the appellant put
in place two protection plans for its employees. The first
is a short-term total disability protection plan providing for 26
weeks of wage replacement (Exhibit A-4). Under that plan,
employees receive 85% of gross weekly salary prior to the
disability. The second is a long-term disability insurance
plan, which takes effect when an employee has reached a maximum
of 26 weeks under the short-term plan (Exhibit A-5). From
that moment, the employee receives 75% of gross monthly salary
prior to the disability. Under the long-term plan,
employees receive benefits for an initial 24-month period
if unable to perform the occupation they had prior to the work
stoppage. After the initial 24-month period expires, if
they are unable to hold any other employment, the employees are
entitled to benefits and only until the age of 65.
[11] It should be noted that the end of the
employer-employee relationship does not affect the right to
benefits as long as the employee's period of disability commenced
prior to the end of that relationship.
[12] As to the procedure for employees
wishing to apply for disability insurance benefits, they are
required to file a claim with the employer, which then forwards
it to the insurer with confirmation that the employee is covered
under the plan. The insurer then assesses the case, dealing
directly with the employee and his or her attending
physician. The insurer alone decides whether to accept a
claim for benefit. It is also the insurer alone that
decides whether the employee continues to qualify under the plan
and whether he or she may continue to receive benefits.
[13] If the insurer does not accept an
employee's claim or terminates payment of benefits after a
certain period, the employer may not dispute the decision.
However, the employee may appeal from the decision directly to
the insurer, providing additional information within 60 days of
the communication of the decision by the insurer. This
procedure is not expressly provided for in the two existing plans
for the appellant's employees (Exhibits A-4 and A-5), but it is
an internal procedure at Financière. If employees
still disagree with Financière's decision, they may seek
legal remedy or request less demanding employment from the
employer. However, it is clearly stated in the plans
negotiated between the appellant and Financière that no
action may be instituted against Financière.
Furthermore, an action may be instituted against the insurance
contract holder (appellant) within a certain time frame (Exhibit
A-4, page 8; Exhibit A-5, page 9).
[14] The disability insurance benefits are
paid by Financière out of the budget of the appellant's
social benefit service. Employees receive their disability
cheques from Financière, which draws the money from an
account opened in the name of the National Bank, social benefits
service, short- and long-term disability. Financière
also makes the source deductions from benefits payable to
employees in respect of tax deductions since disability pensions
are taxable under the Income Tax Act. No deduction
has ever been made for employment insurance on these disability
insurance benefits.
[15] The long-term disability plan (Exhibit
A-5) also provides for an occupational rehabilitation program in
which the appellant cooperates as the employer. In her
case, Ms. Messier-Lafleur went back to work for the
appellant on a part-time basis (six hours a week) under the
program starting on August 4, 1997 (when she had been on
disability leave since May 1997). However, it soon became
apparent that, for all practical purposes,
Ms. Messier-Lafleur's disability made it impossible for her
to return to her position based on the previous work
schedule.
[16] In December 1997, she had a relapse and
had to leave work for a three-month period. She resumed
work in February 1998, working six hours a week as prescribed by
her attending physician. She subsequently worked an average
of seven hours a week (a maximum of 10 hours a week for 3 weeks)
until November 27, 1998, when she stopped working
permanently. Throughout that rehabilitation period, she worked a
total of 294 hours for the appellant and received no salary but
was entitled to her disability insurance benefits from
Financière, since she was still considered disabled with
regard to her usual occupation. On November 27, 1998,
Financière stopped making payments to
Ms. Messier-Lafleur. However, she retained her status
with the appellant as an employee on leave without pay until
September 3, 1999, when she was dismissed by the appellant
for administrative reasons.
[17] According to Mr. St-Germain, the
employee performed only 10% of what she usually did when she
returned to work under her occupational rehabilitation.
Ms. Messier-Lafleur denied this, saying that, during
that period, she had performed exactly the same duties as before,
but worked a smaller number of hours.
[18] Claude Plante, speaking on behalf of
the appellant, confirmed that, throughout the entire period of
disability, that is from May 1996 to September 1999,
Ms. Messier-Lafleur had enjoyed the other applicable
insurance plans the appellant offered its employees, that is the
dental, medical expense and life insurance plan. She did
not have to contribute to the retirement pension plan during the
period, but continued accumulating her years of membership as
though she were working for the appellant.
Arguments of the Parties
[19] The appellant contends that the
disability insurance benefits paid to Ms. Messier-Lafleur
during the period in issue did not constitute insurable earnings
within the meaning of the Act and were thus not subject to
Canada Pension Plan ("CPP") contributions and employment
insurance ("EI") premiums. Counsel for the appellant first
referred to the Employers' Guide to Payroll Deductions
(97-98 and 98-99) ("Guide") published by Revenue Canada, which
states that wage loss replacement benefits are subject to CPP
contributions and to EI premiums if an employee receives those
benefits from a trustee or insurance company under a wage loss
replacement plan of which the employer:
- finances any part of the plan;
- exercises a degree of control over the terms of
the plan;
- determines the eligibility for
benefits.
[20] The Guide also states that wage loss
replacement benefits are not subject to CPP contributions and EI
premiums when the employee receives benefits from a trustee or
insurance company through a wage loss replacement plan where the
employer does not exercise a degree of control over the terms of
the plan and does not determine the eligibility for
benefits. In this last case, even if payments are taxable
for the employee who receives them, it is stated that the payer
is not required to withold tax.
[21] Counsel for the appellant contends
that, while it can be said here that the employer funded the plan
and exercised a degree of control over the terms of the plan (the
appellant determined the amount of benefits payable), it cannot
be said, however, that the employer determined the eligibility
for benefits (it was Financière that performed this
function in its role as administrator). Since one of the
conditions set out in the Guide was not met, counsel contends
that the disability insurance benefits are thus not subject to
CPP contributions and EI premiums.
[22] Counsel for the appellant also
considers that two conditions must be met to consider an amount
paid to an employee to be insurable earnings under
paragraph 2(1)(a) of the Regulations.
The amount must be paid by the employer in respect of the
employee's employment, and it must be paid in consideration for
services rendered.
[23] Counsel referred to the decision by the
Federal Court of Appeal in M.N.R v. Visan, [1983] 1 F.C.
820. In that case, the taxpayer had received disability
insurance benefits from an insurance company under an insurance
plan provided for in the employment contract. As in the
instant case, it was the employer who paid the entire cost of the
disability insurance plan. It had been argued that those
benefits were in fact remuneration paid by the taxpayer's
employer since they resulted from the conditions of employment,
which required that services be rendered before the employer
could be required to make the payments. The Federal Court
of Appeal held that the benefits were intended to compensate the
employee for the loss of payments that would have been made for
services he would have rendered had he not been disabled and not
been paid for services rendered.
[24] The Federal Court of Appeal concluded
in that case that the amounts paid to the taxpayer in respect of
his disability could not constitute earnings within the meaning
of section 54 of the Regulations as it read at the
time (which excluded from insurable employment any employment
with an employer of a person who was employed and remunerated for
less than a certain number of hours per week by his employer or
who received from that employer earnings less than a certain
percentage of the maximum weekly insurable earnings).
[25] Counsel for the appellant contends that
this reasoning was adopted by our Court in National Bank of
Canada v. Canada, [1997] T.C.J. No. 471 (Q.L.), in which
it was held that an employee of the National Bank who had
received disability benefits from an insurance company under an
ASO contract negotiated with the National Bank did not hold
insurable employment during that period. Like the Federal
Court of Appeal, the court stated that the payments received by
an employee are not in the nature of remuneration if they are not
paid by the employer for services rendered.
[26] Counsel for the appellant also relied
on the decision by the Federal Court of Appeal in
Gagné v. Canada, [1998] F.C.J. No. 1811
(Q.L.), in which Pratte J.A. wrote as follows in paragraph
5:
It follows from all of this that a person's insurable earnings
may, contrary to what the Tax Court of Canada said, come from
someone other than the employer. Nevertheless, those
earnings must be paid "for services performed in insurable
employment". It is clear that the insurance benefits paid
to the applicant were not paid to compensate her for services she
had performed in the course of her employment.
[27] In that case, the employee had worked
part-time for her employer, who had paid her for her work, and
she was compensated for the other half of the time by benefits
that had been paid directly by an insurance company under a group
disability benefits plan.
[28] In Wong v. Canada, [1995] F.C.J.
No. 984 (Q.L.), it was held that the payments received in
error from the employer under a collective agreement not
applicable to the employee did not constitute insurable
earnings. The Federal Court of Appeal held that the
payments received from the employer were due to the fact that
Mr. Wong was employed, but they had not been made in respect
of a benefit paid to an employee or of remuneration for services
rendered under a contract of employment.
[29] Counsel for the appellant thus contends
that the amounts paid to Ms. Messier-Lafleur by
Financière do not constitute insurable earnings within the
meaning of the Regulations since the two necessary
conditions for characterizing them as such were not met.
First, the amounts were not paid by the employer, and, second,
they were not paid in consideration for services rendered.
[30] Counsel for the respondent relies on
other decisions by the Federal Court of Appeal in contending that
there were insurable earnings. She cites Canada
(Attorney General) v. Quinlan (F.C.A.), [1994] F.C.J.
No. 276 (Q.L.); Nanaimo Regional General Hospital
v. Canada, [1997] F.C.J. No. 1706 (Q.L.); and
Rousseau v. Canada, [1996] F.C.J. No. 1346
(Q.L.).
[31] In Quinlan and Nanaimo,
the employee received a salary directly from his employer,
whereas he rendered no services to the employer. In both
cases, the employer was required to continue paying the salary in
case of a work stoppage under a collective agreement binding on
the employer and employees (the employer was then reimbursed by
the insurance company or by a provincial agency). It was
held that the salary thus paid constituted insurable
earnings.
[32] In Rousseau, the appellant had
paid the employee a maternity leave indemnity as required by the
collective agreement during a period of unemployment caused by a
pregnancy for which the unemployment insurance plan made no
provision. The Court held that the indemnity was
remuneration not excluded from insurable earnings under the
former subsection 3(1) of the Unemployment Insurance
(Collections of Premiums) Regulations, now replaced by
section 2 of the Regulations.
[33] In all these cases, counsel for the
respondent contends that the employer-employee relationship was
considered a decisive factor in determining that there had been
insurable earnings. On this point, she also cited the
decision by the Federal Court of Appeal in Canada (Attorney
General) v. Sirois, [1999] F.C.J. No. 523 (Q.L.), in
which it was held that an employee who had taken pre-retirement
leave for which she was paid by her employer without performing
any work still held insurable employment as long as the
employer-employee relationship had not been broken.
[34] In counsel for the respondent's view,
Ms. Messier-Lafleur had maintained her employer-employee
relationship with the employer throughout her period of
disability. She was able to enjoy all the benefits made
available to the appellant's other employees. The benefits
she had received were taxable under the taxing statutes.
Although Financière had made the benefit insurance
payments, it had merely acted under a mandate given it by the
appellant to manage its disability plan. It was the
appellant that wholly funded the plan and, according to counsel
for the respondent, assumed full responsibility for it. As
held in Sirois, supra, there may be a contract of
service even when no services are provided to the extent that the
employer-employee relationship is not broken. And the
employer-employee relationship was not broken in this case.
Counsel for the respondent therefore argues that, in the
circumstances, Ms. Messier-Lafleur in fact received
insurable earnings during the period in issue.
Analysis
[35] "Insurable earnings" is defined in
section 2 of the Regulations.
Paragraph 2(1)(a) of the Regulations defines
insurable earnings as the total amount of earnings that an
insured person has from insurable employment that is paid to the
person by the person's employer in respect of that
employment. Under subsection 2(3) of the
Regulations, insurable earnings does not include certain
amounts received in respect of employment that are not taxable
under certain provisions of the Income Tax Act and,
inter alia, a supplement paid to a person by the employer
to increase worker's compensation paid by a provincial authority
or a wage loss indemnity payment made by a party other than the
employer.
[36] In addition, subsection 1(2) of
the Regulations defines the term "employer" as
follows:
"employer" includes a person who pays or has paid earnings of
an insured person for services performed in insurable
employment.
[37] It appears from Visan,
National Bank of Canada and Gagné, cited by
counsel for the appellant, that the insurance benefits paid by
insurance companies or by a provincial authority do not
constitute insurable earnings within the meaning of the
Act. It is also apparent from those decisions that
the employer-employee relationship had not been broken at the
time the employee was receiving his or her insurance
benefits.
[38] It also appears from Quinlan,
Nanaimo and Rousseau, cited by counsel for the
respondent, that the salary an employee receives from his
employer without performing any work constitutes insurable
earnings if that salary is paid under his contract of employment
with the employer. However, I do not share counsel for the
respondent's view that, in these last cases, the
employer-employee relationship was considered a decisive factor
in determining whether there had been insurable earnings.
[39] As seen earlier, an employee could
receive an insurance benefit, which did not constitute insurable
earnings despite the fact that there was still an
employer-employee relationship between the employee and the
employer. In the cases cited by counsel for the respondent,
it was more the contract of employment specific to each of the
cases that had been analyzed to determine the nature of the
payment, which the employer had made to the employee.
[40] In my view, the situation in the
instant case is the same as in Visan and
National Bank of Canada, supra, in which the
employee had received disability insurance benefits from an
insurance company under an insurance plan provided for in his
contract of employment. In those cases, the insurance
company had merely played an administrative function in which it
alone decided on an employee's eligibility for disability
insurance benefits, but in which it was the employer who funded
the entire plan. The fact that the employee was still
employed by the employer was not accepted as a decisive argument
in establishing by other means the nature of the payment made by
the insurance company. It was more the fact that the
amounts paid did not correspond to services rendered, but were
intended instead to compensate the employee in part for the loss
of payments that would have been made for services he would have
rendered if he had not been prevented by his disability, which
was the decisive factor in the finding that there had been no
insurable earnings.
[41] In my view, the decisions cited by
counsel for the respondent have no bearing on the decisions
rendered in Visan and National Bank of
Canada, supra. They merely establish that an
amount paid by an employer to an employee under a contractual
agreement between the two, without any intervention by a third
party, may constitute insurable earnings even if no services are
performed. That is not the situation prevailing here, in
which a third party (Financière), after determining that
the employee was entitled to disability insurance benefits
without consulting the employer, took the responsibility of
paying those amounts to the employee. The fact that the
employer funded the insurance plan did not alter the nature of
the payments made in the circumstances.
[42] Having regard to the decisions rendered
in Visan, National Bank of Canada and
Gagné, supra, I find that the insurance
benefits that Financière paid to Ms. Messier-Lafleur
did not constitute insurable earnings under the Act and
Regulations.
[43] Moreover, I do not believe that the
fact that Ms. Messier-Lafleur worked 294 hours during the
period in issue changes the nature of the payments received from
Financière. It was not under her contract of
employment with the appellant that she rendered those services
and was paid. It was under the insurance contract binding
on the appellant and Financière that the appellant was
asked to take back Ms. Messier-Lafleur on a part-time basis
in an attempt to rehabilitate her. In this instance, the
appellant was merely cooperating in the rehabilitation
program. It moreover paid Ms. Messier-Lafleur no
salary for the hours she worked as part of the program.
Ms. Messier-Lafleur was always covered by the disability
insurance plan.
[44] For the reasons given in Wong,
supra, I find that the disability benefit paid to
Ms. Messier-Lafleur during her period of rehabilitation also
did not constitute insurable earnings.
[45] For these reasons, I will allow the
appeal and vary the decision rendered by the Minister under
subsection 93(3) of the Act on the basis that
the remuneration received by Lise Messier-Lafleur
from Financière during the period from November 28,
1997, to November 28, 1998, totalling $16,677, did not
constitute insurable earnings within the meaning of
subsection 2(1) of the Act and sections 1 and 2
of the Insurable Earnings and Collection of Premiums
Regulations.
Signed at Ottawa, Canada, this 21st day of February
2002.
J.T.C.C.
Translation certified true
on this 17th day of March 2003.
Sophie Debbané, Revisor
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