Citation: 2011 TCC 199
Date: 20110406
Docket: 2010-256(EI)
BETWEEN:
ROBERT MACKENZIE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Boyle J.
[1]
The issue in this case
involves a determination of the insurable hours for employment insurance (EI)
purposes of a part‑time college instructor.
I. Facts
[2]
The Appellant,
Mr. MacKenzie, testified on his own behalf. The Respondent called the
Director of Human Resources for St. Lawrence College, being the college at
which Mr. MacKenzie taught in the period in question. In addition, a
significant number of documents were put into evidence.
[3]
There are few
inconsistencies in the evidence as to facts (as opposed to opinions) and none
that are material to the question to be determined. There are no credibility or
reliability concerns with either of the witnesses’ testimony other than
(i) Mr. MacKenzie’s evidence of preparation and other non‑classroom
teaching time was, as discussed, below, comprised of estimates, and (ii) Mrs. Koolen
was not at the college in the years in question, and was not involved with Council
of Regents’ EI Working Group recommendations described below. Any concerns
regarding these aspects go only to reliability and not to credibility of the
witnesses.
[4]
Mr. MacKenzie
holds a Bachelor of Arts, a Masters of Arts and a Bachelor of Education. He has
been teaching a number of subjects in colleges and universities over the last
few decades. In the period in question, April 2008 to April 2009, he taught
four courses as a part‑time instructor at St. Lawrence College (“the
College”) in Kingston, Ontario.
[5]
During the spring 2008
term, from January to April, he taught Introduction to Media Studies. The class
was three hours long each Monday for 15 weeks. Only the last two weeks of
this course were taught during the period in question.
[6]
During the fall 2008
term, from September through December, he taught Media Studies. The students in
his class were students from Laurentian University’s Bachelor of Nursing
Science class. This class was three hours long each Monday for 12 weeks.
[7]
During the spring 2009
term, from January to April, Mr. MacKenzie taught Technical Writing Skills.
This course was taught to two different classes, one class each Wednesday for
two hours and one class each Friday for two hours. The Wednesday classes were
scheduled for 15 weeks and the Friday classes were scheduled for only
14 weeks because of Good Friday.
[8]
During the spring 2009
term, he also taught a Communications course. The students in this class were
high school students in their final term who planned to attend college the
following year. This course was designed to help them with the transition and
earned them both high school and college credits. This class was two hours long
each Wednesday for 10 weeks.
[9]
As is the common
practice, part‑time faculty are neither paid a fixed salary nor paid an hourly
rate based on actual hours worked or required to be worked. St. Lawrence
College’s contract with Mr. MacKenzie specified the total number of
classroom hours to be taught for each course and fixed the Total Pay for
teaching that course as a function of those classroom hours and a stated rate per
classroom hour. The stated rates set for Mr. MacKenzie’s courses were
$39.27 for Introduction to Media Studies, $118.79 for Media Studies, $50 for
Technical Writing Skills and $50 for Communications. Thus, each contract set a
total contract dollar amount by multiplying the number of scheduled classroom
hours by the rate.
[10]
Colleges use the term Total
Contact Hours and the acronym TCH to describe the actual classroom hours taught
to students. The only adjustment from the scheduled classroom hours would be if
an instructor did not teach a scheduled class. If that were to happen, the fee
payable would be revised.
[11]
There is no dispute as
to Mr. MacKenzie’s TCH during the period, how much he was paid under his
contracts with the College for teaching these courses, or his insurable
earnings.
[12]
Not surprisingly, the
College requires its part‑time faculty to do more under the contracts
than teach the scheduled classroom hours. Course, test, assignment and exam
preparation, test, assignment and exam marking, meetings with students on their
assignment topics, progress and grades, etc. necessarily occur outside the
fixed classroom teaching hours. Both the College and Mr. MacKenzie agree
that he was required and did work more than just the TCH in order to fulfill
his teaching contract obligations. Neither party in fact kept track of the
number of hours actually worked. As described below, Mr. MacKenzie was
able to provide a reasoned estimate of the amount of non‑classroom time
he spent per course and express it as an amount of time per classroom hour. The
College did not estimate the time actually worked by Mr. MacKenzie but, as
described below, estimated his actual worked hours based upon the ratio of a
full‑time professor’s TCH responsibility as a function of a 40-44-hour
work week.
II. The Legislation
[13]
Under the Employment
Insurance Act (“EIA”), the entitlement to benefits is a function of
both one’s “insurable earnings” and “insurable hours”. In this case, there was
no dispute as to Mr. MacKenzie’s insurable earnings.
[14]
Insurable hours are to
be determined by regulations in accordance with section 55 of the EIA.
The relevant provisions of the EIA and Employment Insurance Regulations
(“EIR”) are reproduced below:
[Employment
Insurance Act]
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6(3) For the purposes of this Part, the number of hours of
insurable employment that a claimant has in any period shall be established
as provided under section 55, subject to any regulations made under paragraph
54(z.1) allocating the hours to the claimant’s qualifying period.
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6(3) Pour l’application de la présente partie, le nombre d’heures
d’emploi assurable d’un prestataire pour une période donnée s’établit, sous
réserve des règlements pris au titre de l’alinéa 54z.1), au titre de
l’article 55.
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. . .
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[…]
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55(1) The
Commission may, with the approval of the Governor in Council, make
regulations for establishing how many hours of insurable employment a person
has, including regulations providing that persons whose earnings are not paid
on an hourly basis are deemed to have hours of insurable employment as
established in accordance with the regulations.
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55(1) La Commission peut, avec l’agrément du gouverneur en conseil,
prendre des règlements concernant l’établissement du nombre d’heures d’emploi
assurable d’une personne et, notamment, prévoyant que les personnes dont la
rémunération est versée sur une base autre que l’heure sont réputées avoir le
nombre d’heures d’emploi assurable établi conformément aux règlements.
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(2) If the
Commission considers that it is not possible to apply the provisions of the
regulations, it may authorize an alternative method of establishing how many
hours of insurable employment a person has.
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(2) Lorsqu’elle estime qu’il est impossible d’appliquer les
dispositions de ces règlements, la Commission peut autoriser un autre ou
d’autres modes d’établissement du nombre d’heures d’emploi assurable.
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(3) The
Commission may at any time alter the authorized method or rescind the
authorization, subject to any conditions that it considers appropriate.
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(3) La Commission peut, sous réserve des conditions qu’elle estime
indiquées, modifier un mode qu’elle a autorisé ou retirer son autorisation.
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(4) The
Commission may enter into agreements with employers or employees to provide
for alternative methods of establishing how many hours of insurable
employment persons have and the Commission may at any time rescind the
agreements.
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(4) La Commission peut conclure des accords avec des employeurs et
des employés prévoyant d’autres modes d’établissement du nombre d’heures
d’emploi assurable et y mettre fin unilatéralement.
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[Employment
Insurance Regulations]
|
9.1 Where a
person’s earnings are paid on an hourly basis, the person is considered to
have worked in insurable employment for the number of hours that the person
actually worked and for which the person was remunerated.
|
9.1 Lorsque la rémunération d’une personne est versée sur une base
horaire, la personne est considérée comme ayant exercé un emploi assurable
pendant le nombre d’heures qu’elle a effectivement travaillées et pour
lesquelles elle a été rétribuée.
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9.2 Subject
to section 10, where a person's earnings or a portion of a person's earnings
for a period of insurable employment remains unpaid for the reasons described
in subsection 2(2) of the Insurable Earnings and Collection of Premiums
Regulations, the person is deemed to have worked in insurable employment
for the number of hours that the person actually worked in the period,
whether or not the person was remunerated.
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9.2 Sous réserve de l’article 10, lorsque la totalité ou une partie
de la rémunération d’une personne pour une période d’emploi assurable n’a pas
été versée pour les raisons visées au paragraphe 2(2) du Règlement sur la
rémunération assurable et la perception des cotisations, la personne est
réputée avoir exercé un emploi assurable pendant le nombre d’heures qu’elle a
effectivement travaillées durant cette période, qu’elle ait été ou non
rétribuée.
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10(1) Where
a person’s earnings are not paid on an hourly basis but the employer provides
evidence of the number of hours that the person actually worked in the period
of employment and for which the person was remunerated, the person is deemed
to have worked that number of hours in insurable employment.
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10(1) Lorsque la rémunération d’une personne est versée sur une base
autre que l’heure et que l’employeur fournit la preuve du nombre d’heures
effectivement travaillées par elle au cours de la période d’emploi et pour
lesquelles elle a été rétribuée, celle-ci est réputée avoir travaillé ce
nombre d’heures d’emploi assurable.
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(2) Except
where subsection (1) and section 9.1 apply, if the employer cannot establish
with certainty the actual number of hours of work performed by a worker or by
a group of workers and for which they were remunerated, the employer and the
worker or group of workers may, subject to subsection (3) and as is reasonable
in the circumstances, agree on the number of hours of work that would
normally be required to gain the earnings referred to in subsection (1), and,
where they do so, each worker is deemed to have worked that number of hours
in insurable employment.
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(2) Sauf dans les cas où le paragraphe (1) et l’article 9.1
s’appliquent, si l’employeur ne peut établir avec certitude le nombre
d’heures de travail effectivement accomplies par un travailleur ou un groupe
de travailleurs et pour lesquelles ils ont été rémunérés, l’employeur et le
travailleur ou le groupe de travailleurs peuvent, sous réserve du paragraphe
(3) et si cela est raisonnable dans les circonstances, décider de concert que
ce nombre est égal au nombre correspondant normalement à la rémunération visée
au paragraphe (1), auquel cas chaque travailleur est réputé avoir travaillé
ce nombre d’heures d’emploi assurable.
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(3) Where
the number of hours agreed to by the employer and the worker or group of
workers under subsection (2) is not reasonable or no agreement can be
reached, each worker is deemed to have worked the number of hours in
insurable employment established by the Minister of National Revenue, based
on an examination of the terms and conditions of the employment and a
comparison with the number of hours normally worked by workers performing
similar tasks or functions in similar occupations and industries.
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(3) Lorsque le nombre d’heures convenu par l’employeur et le
travailleur ou le groupe de travailleurs conformément au paragraphe (2) n’est
pas raisonnable ou qu’ils ne parviennent pas à une entente, chaque
travailleur est réputé avoir travaillé le nombre d’heures d’emploi assurable
établi par le ministre du Revenu national d’après l’examen des conditions
d’emploi et la comparaison avec le nombre d’heures de travail normalement
accomplies par les travailleurs s’acquittant de tâches ou de fonctions
analogues dans des professions ou des secteurs d’activité similaires.
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(4) Except
where subsection (1) and section 9.1 apply, where a person's actual hours of
insurable employment in the period of employment are not known or
ascertainable by the employer, the person, subject to subsection (5), is
deemed to have worked, during the period of employment, the number of hours
in insurable employment obtained by dividing the total earnings for the
period of employment by the minimum wage applicable, on January 1 of the
year in which the earnings were payable, in the province where the work was
performed.
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(4) Sauf dans les cas où le paragraphe (1) et l’article 9.1
s’appliquent, lorsque l’employeur ne peut établir avec certitude ni ne
connaît le nombre réel d’heures d’emploi assurable accumulées par une
personne pendant sa période d’emploi, la personne est réputée, sous réserve
du paragraphe (5), avoir travaillé au cours de la période d’emploi le nombre
d’heures d’emploi assurable obtenu par division de la rémunération totale
pour cette période par le salaire minimum, en vigueur au 1er janvier
de l’année dans laquelle la rémunération était payable, dans la province où
le travail a été accompli.
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(5) In the
absence of evidence indicating that overtime or excess hours were worked, the
maximum number of hours of insurable employment which a person is deemed to
have worked where the number of hours is calculated in accordance with
subsection (4) is seven hours per day up to an overall maximum of 35 hours
per week.
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(5) En l’absence de preuve des heures travaillées en temps
supplémentaire ou en surplus de l’horaire régulier, le nombre maximum
d’heures d’emploi assurable qu’une personne est réputée avoir travaillées
d’après le calcul prévu au paragraphe (4) est de 7 heures par jour sans
dépasser 35 heures par semaine.
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(6)
Subsections (1) to (5) are subject to section 10.1.
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(6) Les paragraphes (1) à (5) s’appliquent sous réserve de l’article
10.1.
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III. Analysis
[15]
It is clear from this regime that
sections 9.1 and 9.2 of the EIR deal with employees who are paid an
hourly amount for each hour worked. Such hourly workers are able to be dealt
with in the short and straightforward manner of section 9.1. Their
insurable hours are simply the number of hours which they worked and for which
they were paid.
[16]
Section 9.2 deals with the
possibility of such an hourly worker working hours for which he or she should
have been paid but was not paid because of the employer’s insolvency. The provision
recognizes that such unpaid hours worked should also be included in the
worker’s insurable hours.
[17]
It is clear from the evidence of
both parties and the documentary evidence that Mr. MacKenzie was not such
an hourly worker. His earnings were not determined on the basis of the actual
hours he was required to work and in fact worked. His earnings for the work
required were determined solely as a function of his TCH, a subset of the hours
he actually worked.
[18]
Such an interpretation of
sections 9.1 and 9.2 of the EIR is confirmed by the more complicated
regime set out in section 10 that applies to a person whose earnings are
not paid on an hourly basis. In such a case, several methods are set out in
order to determine the insurable hours beginning with the possible
determination by the employer of the hours actually worked.
[19]
Section 10 of the EIR
clearly applies to salaried employees who are required to work beyond their
normal work day or work week, and even if their nominal work week is described
in hours. It also applies to piece workers who are paid a set amount per unit
of work done if the unit is anything other than actual hours actually worked.
Section 10 applies to Mr. MacKenzie because he is paid in accordance
with his contract on TCH not on actual hours actually worked. TCH are no more
an hourly basis of pay than is a salaried worker’s presumed 35 or 40‑hour
work week. For purposes of determining “insurable hours”, the concept of TCH is
a comparable unit to a bushel or a piece; neither is a 60‑minute hour,
nor is either a measure of true time.
[20]
Subsection 10(1) provides for
the situation where the employer maintains evidence of the hours actually
worked by the particular employee even though he or she is not paid on an
hourly basis. For example, a manufacturer may pay its workers by the piece but
keep their business premises open set hours and keep records of who is in the
building or who is working each station during each shift. This might also be
the case for salaried employees who are required to report their hours worked
for management or other purposes beyond their normal work day or work week, or
if their presence at their work station, on their computer, or in the building
is monitored. In such a case, the amount recorded by the employer is deemed to
be the worker’s insurable earnings.
[21]
In Mr. MacKenzie’s case, the
evidence of St. Lawrence College is that it did not track the hours
actually worked by him or by any other sessional or part‑time instructor,
nor were they aware of any college that did.
[22]
Subsection 10(2) of the EIR
then provides that if the employer cannot determine with certainty the actual
number of hours worked, the employer and employee can agree on a number of
hours worked that would normally be required to gain the earnings and, if they
do agree, and the amount is reasonable, the agreed number is deemed to be the
worker’s insurable hours. This subsection does not apply in this case because
there is no agreement on the hours normally required per TCH. As described in greater
detail below, Mr. MacKenzie estimates it is approximately four hours per
TCH and the College has used a factor of 2.17 hours per TCH in completing
the required Record of Employment (“ROE”) for EI purposes.
[23]
This brings us to subsection 10(3)
of the EIR. Subsection 10(3) provides that, if the employer and the
worker cannot reach an agreement under subsection 10(2), the employee’s
insurable hours are deemed to be the number established by the Minister of
National Revenue (“Minister”) based upon the employment terms and conditions
and upon a comparison with the number of hours normally worked by similar
workers performing similar functions.
[24]
Both witnesses testified to the
terms and conditions of Mr. MacKenzie’s employment at the College. It was
clear that he was required to do significantly more than TCH. Their testimony
in this regard was confirmed by such documents as the Associate Dean’s contract
confirmation letter to Mr. MacKenzie and the Faculty Information
Memorandum St. Lawrence College provided to all instructors.
[25]
The only evidence of actual hours
worked came from Mr. MacKenzie. Mr. MacKenzie did not track his
actual hours worked. He testified that he estimated his approximate three hours
of additional work per TCH having regard to:
(a) The time at the outset, before
teaching occurs, spent reviewing existing course outlines, materials and texts,
considering and developing alternatives, consulting with the department head
and preparing his own overall course plan. He estimated this averaged
32 hours per course for each of the four courses. He stressed his estimate
was an average and more time would have been spent, for example, on the
Communications course which was a new course. In cross‑examination, he
acknowledged that this work for the spring 2008 Introduction to Media Studies
course would have been completed prior to the period in question.
(b) The preparation time for each
class taught, spent reviewing the material to be taught and planning its
delivery, etc. He estimated this averaged two to three hours for each two or
three‑hour class. He acknowledged in cross‑examination that he
spent less time for some classes and some courses but felt that this was a good
estimate of an overall average. I note that this is an average preparation
time of one hour for each hour of class taught.
(c) The time spent preparing the
assignments, tests and examination papers for each course he estimated at
10 hours on average per course. He acknowledged most of this work for the
spring 2008 Introduction to Media Studies course would have been completed
before the period in question.
(d) The time spent marking the
assignments, tests and examination papers, he estimated at 25 hours for
each course. He acknowledged in cross‑examination that for courses where
students were marked in part on oral communications skills by way of an in‑class
presentation, he was able to mark these during his TCH.
(e) Setting up and maintaining
records of students’ marks and students’ progress was estimated to average
10 hours per course.
(f) Meetings with students for
information, advice and counsel on course material, assignment topics or
generally regarding their pursuits and fields of study took additional time.
[26]
Having heard this evidence and
considered it in the overall context of the evidence, but without deciding the
matter, Mr. MacKenzie’s estimate of an additional three hours per TCH
appears to be somewhat high. Adjusting for the overstatements acknowledged in
cross‑examination and a reasonable range for the inaccuracy of after the
fact estimates, etc., I would be more inclined to think a more correct number
might be in the range of two additional hours per TCH, made up of approximately
one hour of preparation and follow‑up time for each TCH, and a further
hour in recognition of the overall course preparation grading and follow‑up.
In the circumstances, all I could do would be to come up with an estimate and I
acknowledge that, if it could ever be tested, my estimate may in fact miss the mark
more than either of the parties’ estimates.
[27]
The only evidence of how much time
is allocated to other College instructors for their non‑TCH
responsibilities came from the College’s Human Resources Director. Her
testimony was that the College, in completing its ROEs for less than full‑time
instructors, opted to follow the recommendations of the Ontario Council of
Regents. The Council of Regents is made up of representatives from Ontario’s
colleges. It acts as the colleges’ bargaining agent in dealing with their
employees including those instructors who bargain collectively. The Council of
Regents also serves as an advisory resource on administrative matters to its
Ontario college members.
[28]
With the advent of new EI ROE reporting
requirements on insurable hours, the Council of Regents struck a working group
to consider the issue of how to report the insurable hours for its employees,
including in particular those who are working less than full‑time, and
including instructors. This working group was comprised entirely of college
administrator nominees. No instructors were represented, nor was any
information ever sought from them. The working group asked the Council’s member
colleges how each college recommended or suggested hours actually worked per
TCH should be recorded going forward under the new ROE regime. The working
group summarized those suggestions and circulated the summary together with the
working group’s recommended approaches. St. Lawrence College has chosen to simply adopt
those recommendations.
[29]
The Council of Regents’ working group
recommendations for instructors working less than full‑time is to
multiply their TCH by the ratio that (a) full‑time instructors’ weekly
TCH obligations of 18 to 20 TCH is to (b) the nominal full‑time
instructors’ work week of 42‑44 hours. In the case of part‑time
instructors, a factor of 2.17 is thus applied to their TCH to come up with an
estimate of their hours actually worked and “insurable hours”. A factor of 2.17
allows for an additional 1.17 hours per TCH of time to fulfill related
course teaching obligations other than TCH.
[30]
This was the only evidence before
the Court of what could be considered at all reflective of hours actually
worked by other instructors generally in fulfilling their TCH obligations. As
mentioned, it was not the product of any input from instructors whatsoever and
entirely equated full‑time instructor assumptions to part‑time
instructors. No attempt appears to have been made to consider if an adjustment
was needed for such things as a possible greater efficiency of full‑time
tenured faculty with perhaps more fixed courses over time compared to part‑time
instructors, or to whether full‑time faculty were in fact paid by
colleges to work a significant number of weeks throughout the year during which
no courses were taught and they had no TCH responsibilities, weeks such as
reading weeks, summer terms and the December‑January period between the
fall and spring terms.
[31]
The Council of Regents’
recommended 2.17 factor per TCH was the only such evidence before the Minister
when he made the ruling in question. The ruling states that it rejects
Mr. MacKenzie’s estimates because he could not provide written
substantiating documents or a log of hours worked outside the classroom. The ruling
then acknowledged that some credit need be given for preparation and marking,
considered the 2.17 factor and concluded: “The insurable hours issued by St. Lawrence
College on the Record of Employment . . . totalling
261 hours are therefore accepted as indicated.”
[32]
This clearly does not satisfy what
the Minister is to consider if he was applying subsection 10(3) of the EIR.
In fairness, the ruling proceeded as if it was applying section 9.1 even
though the “hourly basis” of pay was not paid for each hour actually worked.
[33]
The Canada Revenue Agency Report
on Appeal indicates that it proceeded in its consideration on the same basis as
the ruling did.
[34]
The recommendations of the Council
of Regents together with the information on which they are based are helpful
and relevant but do not appear to satisfy the requirements of subsection 10(3)
of the EIR to consider the time other similarly situated workers
actually work to fulfill their TCH obligations.
[35]
Bonner J. of this Court
rejected a similar formulaic approach adopted by the Canadian Association of
University Teachers in Franke v. Canada (Minister of National Revenue – M.N.R.),
[1999] T.C.J. No. 645 (QL), in the case of a sessional lecturer at a
university, for similar reasons. See also Sutton v. M.N.R.,
2005 TCC 125, where a teacher paid by the classroom hour was
recognized not to be paid on an hourly basis in the manner contemplated by
section 9.1 of the EIR and was required to spend time working
outside the classroom.
[36]
Similarly in Judge v. M.N.R,
2010 TCC 329, Woods J. found that subsections 10(1) and
10(3) did not apply to a part‑time secondary school teacher who was not
paid on an hourly basis and recognized that the teacher was required to work
beyond simply classroom hours.
[37]
This brings me to the question of
what is this Court’s power or standard of review of the Minister’s
determination under subsection 10(3) of the EIR (had the Minister
proceeded under 10 instead of 9.1). Subsection 10(3) deems the insurable
hours to be the amount determined by the Minister. Is it open to this Court to
substitute its own view? Should this Court only review the Minister’s
determination to ensure that the subsection 10(3) factors were properly
considered and that the Minister’s determination was reasonable on the
information before it? How is the Minister or this Court to balance the two
specific considerations in subsection 10(3)? Can the Minister or this
Court consider other factors? Certainly, this regulation proves that L’Heureux‑Dubé J.
of the Supreme Court of Canada was correct in Canada (Canada Employment and
Immigration Commission) v. Gagnon, [1988] 2 S.C.R. 29, that:
35 . . .
The least that can be said is that the Act is not a model of clarity and,
consequently, its interpretation is not an easy task.
[38]
Given the limitations described
above in respect of the basis for the Council of Regents’ 2.17 factor, I am
inclined to conclude it is somewhat light in the case of a part‑time
instructor such as Mr. MacKenzie by giving only 1.17 hours of additional
time per TCH.
[39]
I have concluded that, given the
further deeming provision in subsection 10(4), I do not need to further consider
or decide the questions raised by subsection 10(3) of the EIR in
order to dispose of this case.
[40]
Subsection 10(4) of the EIR,
by its terms, expressly applies if (i) the employee’s earnings are not
paid on an hourly basis, in which case section 9.1 applies, and (ii) the
employer cannot provide evidence of the hours actually worked by that person,
in which case subsection 10(1) of the EIR would apply. Such is
Mr. MacKenzie’s case. In such a case, subsection 10(4) deems the
person’s insurable hours to be the result obtained when the person’s earnings and
dollars are divided by the applicable minimum wage, to a possible maximum in
subsection 10(5) of the EIR of seven hours per day and 35 hours
per week.
[41]
There is no attempt in the EIA
to reconcile these two different deeming provisions even though they each can
apply by their express terms to the same circumstances and will each yield a
different result.
[42]
It is clear that the result of the
application of subsection 10(4) of the EIR is that
Mr. MacKenzie’s insurable hours will be greater than the number of
insurable hours he asked this Court to determine. This deemed result is
certainly an odd result which clearly bears no resemblance to the number
I would have determined to be Mr. MacKenzie’s actual hours worked had
I been required to make such a determination.
[43]
I have been guided in this
decision by the Supreme Court of Canada’s decision in Abrahams v. Attorney
General of Canada, [1983] 1 S.C.R. 2, in which it is written:
. . . Since
the overall purpose of the Act is to make benefits available to the unemployed,
I would favour a liberal interpretation of the re-entitlement provisions. I
think any doubt arising from the difficulties of the language should be
resolved in favour of the claimant. . . .
[44]
The Supreme Court of Canada’s
decision in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27, similarly supports a broad and generous interpretation of
employment benefits‑conferring legislation.
[45]
Given that the EI legislation is
social benefit legislation and to be interpreted accordingly, I see no reason
or basis to denying Mr. MacKenzie the benefit of determining his insurable
hours to be the number deemed by subsection 10(4) of the EIR.
[46]
In McKenna v. Canada
(Minister of National Revenue – M.N.R.),
[1999] T.C.J. No. 816 (QL), Weisman J. held that subsection 10(4) of
the EIR applied to a university instructor who was not paid on an hourly
basis. Similarly, in Furtado v. Canada (Minister of National Revenue –
M.N.R.), [1999] T.C.J. No. 164 (QL), and in Keir v. Minister of National
Revenue, 2002 CarswellNat 3525 (TCC), subsection 10(4) of the EIR
was held to be the correct provision to apply if the hours worked are not
ascertainable because of significantly conflicting evidence. It can also be
noted that in Société en commandite Le Dauphin v. M.N.R.,
2006 TCC 653, the Minister applied subsection 10(4) in the
absence of precise data on hours worked and this approach was upheld by the
Court.
[47]
Accordingly, Mr. MacKenzie’s
appeal is allowed and, in accordance with paragraph 103(3)(a) of
the EIA, I am ordering that the Minister’s decision on
Mr. MacKenzie’s appeal of the ruling be varied to reflect that his
insurable hours are the result obtained when subsection 10(4) of the EIR
is applied.
Signed at Ottawa, Canada, this 6th day of April 2011.
“Patrick Boyle”
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