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Citation: 2003TCC775
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Date: 20031113
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Docket: 2001-1708(EI)
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BETWEEN:
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ERNEST EASON,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent,
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and
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THE LABOURERS INTERNATIONAL UNION, LOCAL
1208,
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Intervenor.
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AMENDED REASONS FOR JUDGMENT
Margeson, J.
[1] The Appellant applied to the
Respondent for determination of the number of insured hours and
his insurable earnings while he was employed with the Labourers
International Union, Local 1208 (the "Payor") for the
period from August 30, 1999 to September 9, 2000 (the
"period in question") within the meaning of the
Employment Insurance Act (the "Act") the
Employment Insurance Regulations (the
"Regulations") and the Insurable Earnings and
Collection of Premiums Regulations (the
"IECPR").
[2] The Respondent informed the
Appellant that it had been determined that his engagement with
the Payor during the period in question was insurable employment
and he was employed pursuant to a contract of service with
insurable earnings and insurable hours as reflected on the Record
of Employment ("R.O.E.") (#A24243619) issued to
him.
[3] In this decision the Minister
determined that the Appellant worked in insurable employment for
1,380 hours during the period in question in accordance with
subsection 10(1) of the Regulations and that the
Appellant's earnings from insurable employment for the last
27 weeks of the period in question were $17,275 pursuant to
subsection 2(1) of the IECPR. From this decision the
Appellant filed a Notice of Appeal dated
April 11, 2001.
[4] In his opening remarks, counsel
for the Appellant indicated that the only issue was the number of
hours during which the Appellant was employed during the period
in question. Further, whether the Appellant was employed on an
every second week basis at a set salary or on an every week basis
on a salary of one-half the two-week basis. Further,
the amount of insurable earnings was in issue.
[5] Deanne Hennessey testified that
she worked for the Payor and was employed there for about nine
years. She knew the Appellant. He was a co-worker and a
business agent for Eastern Newfoundland. He had also been
President of the Local. Her job was office administrator. Up
until September 2000, her fellow workers were
Pat McCormick, Joseph Whiffen, Gus Coombs,
Ernest Eason and possibly Vic Slaney. She was in the
general office and she was able to determine who came in and out
of the office.
[6] Ms. Hennessey recalled the period
between August 30, 1999 and July 2000. During that
time Mr. Eason's duties were dealing with the labour
arbitration hearings and handling any inquiries concerning the
workers. During the period of August 30, 1999 to July 2000 the
Appellant did come into the office but she did not know if he was
in every day or not. He would not necessarily come in to the
office every day. This was the case even before the period in
question. There was no significant difference in the amount of
time that he spent in the office before or after the period in
question.
[7] In cross-examination,
Ms. Hennessey said that there was an Executive Board meeting
on May 31, 1999.
[8] The Appellant testified that up to
September 9, 2000 he was employed by the Intervenor as business
agent except for four weeks when he was an organizer. He had been
a business agent since 1986 for Eastern Newfoundland. His duties
included looking after the hiring list. He visited job sites and
dealt with contractors with respect to grievances. He looked
after health and welfare issues and pension issues. He also
referred members to employers.
[9] He recalled the issue of the
reduction of the number of employees which came up in May 1999.
It came up at their Executive Board meeting. It was put forward
by Pat McCormick, the business manager. He considered having
one area business agent only instead of four. He proposed a
reduction in staff and a reorganization of the position. This was
not agreed upon. Then they considered doing a week-on and a
week-off for the agents. The Appellant disagreed and told the
Board and Pat McCormick. He spoke to Pat McCormick during the
meeting and afterwards in his office. Mr. McCormick said if the
arrangement was agreed upon, at a later date those affected would
be reimbursed for the week off when funds became available.
[10] Some of the training facilities were up
for sale and he thought that funds might be made available from
that source. He discussed with Pat McCormick this aspect of
the matter and indicated that he had a number of important cases
before the Labour Relations Board which were coming up and the
dates would coincide with his week off. He would sit in on the
hearings and act as advisor to legal counsel for the Union. They
also talked about making application for employment insurance
benefits. The Appellant believed that he would be over the
threshold of $39,500 and would have to pay the money back if he
applied for employment insurance benefits. He was told by
Pat McCormick to continue with these cases before the Labour
Relations Board and to report for work every day as usual. If
anyone in the office had any questions about it he would deal
with Pat McCormick. There was no talk about taking time off
instead of pay for attending the hearings. He attended the
hearings for the Whiffen Head Project which was a long
hearing. He acted as advisor to the legal counsel on that
case.
[11] He made reference to Exhibits A-1, A-2
and A-3 and was able to identify the dates that hearings were
held which he attended from start to finish. His expenses with
respect to attendance at these hearings were paid for by the
Local.
[12] He reported for work every day. The
weeks that he was supposed to be off he reported for work and
visited job sites. He attended meetings and hearings including
the building's trade meetings which were held once per week
on Monday. He was able to refer to particular hearings which he
attended and the matters and specific companies that he dealt
with.
[13] No one replaced him and no one
performed any of his duties. He would attend meetings of the
Atlantic Regional Council and was an auditor with the Atlantic
District Council. He did it before August 30, 1999 as well. The
welfare plan was administered by the manager and a board of
trustees locally. He was a labour trustee on that board during
the period in issue. He attended meetings of that board of
trustees. These were held during normal business hours.
[14] He also attended conferences in
different parts of North America with the Labourers International
Foundation. He was there as a delegate of Local 1208. This was
not during the period in issue.
[15] With respect to his remuneration he
received a cheque every two weeks from Local 1208 but also
received a per diem allowance for vehicle and meals
each week of $300. During the first five to six weeks he received
both cheques together but then he took it every other week as
suggested. Exhibits A-3 and A-4 were accepted as
having been proved.
[16] In cross-examination he said that prior
to August 1999 he was a local business agent and President of the
Union. He worked 40 hours a week, nine to five, Monday to Friday.
That was the agreement that he had. Sometimes he had to take
telephone calls at home. He was paid for 40 hours a week, he kept
no timesheets and he was paid weekly. The Union had quarterly
Executive Board meetings except during the summer.
[17] In 1999 they did not review the minutes
of the previous meeting or approve them. On
May 31, 1999, they had a meeting. He was there,
Pat McCormick was there, Rick Anderson may have been
there, Gus Coombs was there, Paul Stamp was there as
well as Andrew Coady. Pat McCormick did not say that
everyone would have to work a week-on and a week-off except,
Deanne and Joseph. He did not say anything about Vic Slaney
staying. He was an organizer. He did say that the business agents
would have to have a week-on and a week-off. The Appellant did
not agree with this arrangement.
[18] Not everyone there agreed or acquiesced
in the arrangement put forward. Mr. Coombs disagreed with
Mr. Slaney being laid off. Mr. Coady and Mr. Stamp
were not on the payroll and had no comment. Pat McCormick
proposed that if the arrangement was accepted then there would be
a reimbursement for those affected when the funds became
available. They did not intend to call any of those other persons
who were present at this meeting. He agreed that between August
30, 1999 and July 2, 2000 he worked as a business agent under
this new arrangement. He said: "That was the
arrangement."
[19] Between July 2, 2000 and
September 8, 2000 he worked as an organizer. Between
August 30, 1999 and July 2, 2000 he was paid $1,100 on alternate
weeks. That was for the week that he was supposed to work 40
hours. He worked nine to five, Monday to Friday, based on a
40-hour week.
[20] On alternate weeks he was not paid. He
continued to work every week. For the first five weeks he was
paid every second week and then he was paid one week for pay and
then expenses every other week. He received a
per diem allowance before the new arrangement came
into effect. This was additional to his regular pay cheque.
Between August 30, 1999 and July 2, 2000 he received a
regular pay cheque and then received a per diem
cheque for off-weeks. He did not receive his regular pay
cheque. He did not keep any timesheets but he worked the same as
if this new arrangement had never happened.
[21] He denied that he had spoken to
Pat McCormick on the telephone during the first week that he
was supposed to be off. He said that he spoke to him in person
after the Executive Board meeting on May 31, 1999 and he spoke to
him in his office. He had concerns about the ongoing work that
had to be completed. He also talked about the reduction and what
he based it on. He was satisfied that a decision had been made.
The new arrangement was to commence the week of May 31.
Another concern that he had was whether or not he would file for
employment insurance. He did not file.
[22] Pat McCormick told him to continue
with his work on the cases before the Labour Relations Board. The
Appellant said that he would be coming in to work on the same
basis as he always did. When it was suggested to him that it had
been decided to reduce his work to every second week he said that
that was not his impression. "There was no discussion about
the off weeks." He talked to Pat McCormick at the
Executive Board meeting and it was agreed that he would work
full-time and he continued to do so.
[23] He was asked when Mr. McCormick
expressly agreed with him that he would continue to work
full-time and would receive only one-half of his pay now
and the balance when the money became available. He said that it
was the next week following the Monday Board meeting. He said it
was on May 31, the day of the Board meeting at
Pat McCormick's office. He said: "It would have to
have been agreed at his office." Then he said that
Pat McCormick said to him: "You will continue working
as before." He was only talking about himself. This was
different from the Executive Board meeting. He did not get it in
writing and kept no record of the meeting. He identified his
signature in Exhibit R-1 and said that it was correct.
[24] In cross-examination by counsel on
behalf of the Intervenor the Appellant said that the Board
meeting was held on May 31, 1999 and six people attended.
Mr. McCormick announced the work-sharing and the
work-reduction due to the economic situation. The proposal
was that the parties work one week-on and one week-off. He was
the only one opposed to it in principle. He was in the minority.
There was not a great advantage for him to draw employment
insurance. This was discussed at a meeting with Pat McCormick.
When he left the Board meeting he knew that his choices were to
apply for employment insurance and risk having to pay it back and
he decided not to apply. It was clear to him that he would not be
drawing his salary every second week. This knowledge came to him
from the Board meeting.
[25] He was asked about the meeting with Pat
McCormick afterwards on Monday and what the expressed statement
was of Pat McCormick that he would be paid for those weeks. He
said: "I can't say word per word what was said."
When he worked more than 40 hours before, he only received pay
for 40 hours. He believed that the decision that was made to keep
someone else on was because of the persons involved.
[26] He believed that he should be kept on.
He was asked why he used the term, "the week I was supposed
to be off" and he said that came up the week that
Mr. Coombs came in to the office. He was there. He did not
tell him that he had another arrangement. It was suggested to him
that he must have had some discussion about the fact that he
should not have been in the office at that time. There was no
response to this. It was suggested to him that at the board
meeting of May 31, the issue came up about them all being
paid when money became available. What would they be paid for?
Would they be paid if they did not work or only if they worked
like he did? He said that the basis for him being paid was that
he would report for work and continue with these cases.
Pat McCormick told him to carry on with the work that he was
doing. He admitted that he did not receive his regular pay cheque
during the period in question.
[27] In re-direct he was asked what
his understanding was of what would be paid, when it would be
paid and why it would be paid? He said that he would continue on
to work and to receive his pay cheque ($1,100) every second week
and then be paid when funds became available. He admitted that he
did not have any arrangement with the Board but only with
Pat McCormick to continue on with his regular work schedule.
The final say goes to the business manager under their
Constitution. The business manager is an elected position.
[28] The Respondent called
Joseph Whiffen who was the Comptroller for Local 1208.
He has a business diploma. He had been with the Union for three
years and was there in May of 1999. He identified
Exhibit R-2, the R.O.E. and said that he prepared it.
He also prepared the payroll and identified Exhibit R-3. He
indicated that after September 11, 1999 the Appellant was paid on
alternate weeks. He was asked why he was paid alternate weeks up
to July 2, 2000. He said that Pat McCormick
instructed him that all the employees would be going on a week-on
and a week-off basis. On August 30, 1999 and
July 2, 2000 the Appellant was paid 23 weeks for 40
hours a week for a total of 920 hours. Between July 3, 2000 and
September 8, 2000 he was paid for 10 weeks at $50 a week or 500
hours. He had 1,420 hours.
[29] He identified Exhibit R-2, the
R.O.E. he had completed on behalf of the Local regarding the
Appellant. The Appellant was paid a per diem for meals and
travel, gas and vehicle. It was paid to the Appellant for
alternate weeks because he asked for a change. At first the
Appellant was to be paid the week that he worked and he had to
obtain permission to accommodate the request made by the
Appellant to change it.
[30] In cross-examination he said that he
did not know the last day that the Appellant worked and he did
not know what the last day was that he was paid for. He issued
Exhibit A-5 which was a R.O.E. from the Local. Box 11 showed
that the last day for which the Appellant was paid was
August 6, 1999.
[31] There was a three-week gap
between Exhibit A-5 and Exhibit R-2. The witness said that the
Appellant was off the first three weeks. He was not in the office
during those three weeks. He admitted that he was told that the
employees were to commence week-on, week-off.
[32] During 1999 there were people working
the week-on and the week-off routine. The Appellant was not one
of them. At first he said he did not know when the Appellant
started the week-on, week-off routine but he said it would be
around the end of August 1999. He would have given
Exhibit A-5 to the Appellant around about the date he
signed off on it which was August 6, 1999. During the 52
weeks prior to August 6, 1999 the Appellant was paid for every
week. He came up with the figure of 2,120 hours from the payroll
records. They did not pay people when they were not employed.
[33] In cross-examination by counsel for the
Intervenor, he said that he must apply the information for the
last 53 weeks in his calculation of insurable hours. There were
no problems with Exhibit R-2. The period he was asked
about was not in the 53 weeks prior to September 9, 2000. He
concluded that someone was paid to work and if they did not get
paid they were not working.
[34] Pat McCormick was the business manager
for Local 1208 and was elected in 1985. On May 31, 1999 there was
a Board meeting of the Local. Mr. McCormick,
Ernest Eason, Andrew Coady, Ed Hallahan,
Gus Coombs and Paul Stamp attended. Richard Henderson
was a Board member who was not there. There was a downturn in the
Local revenue and he had to reduce the payroll. He put forward
the proposition that Vic Slaney be laid off and the rest
would work part-time except for the principle office people. He
was asked what he meant by "part-time" and he
said a week-on and a week-off, on a rotation basis. He put
forward this proposal but Gus Coombs was concerned that
Vic Slaney would be laid off completely. He said that he
should be week-on, week-off as well. Three other persons also
spoke and indicated that Mr. Slaney should be involved on
the rotating basis also.
[35] Mr. McCormick and Gus Coombs would
work one week and the Appellant and Vic Slaney would work
together. The Appellant questioned why Mr. Coombs was
working with him. The Appellant and Mr. Slaney were advised
to proceed to work on that basis. The Appellant had only one
issue and that was how the pairing took place. He was not
concerned about the week-on, week-off position. He was asked
whether he agreed that the people affected would get paid for
weeks off. He said that there was no discussion about that.
[36] He went out of town. The following week
on Monday, Mr. Coombs called him. He wanted to know what Mr.
Eason was doing in the office. He told him that he did not know
but he would talk to him. He telephoned and he was told that he
wanted to discuss it with him. He went into his office and
Mr. Eason said he would prefer to be in the office
volunteering. Mr. Coombs asked him if he was going to send
him home and he said no. He was volunteering his time. Then, in
the afternoon, Mr. Coombs came in and he said that he and
Vic Slaney were going to volunteer their time as well so as
to keep contact with the office.
[37] In August, Mr. McCormick called
all three into his office and said that he appreciated the work
that they were doing on a voluntary basis. He said that if and
when funds became available, they would get paid for volunteered
time. At the Board meeting there was no reason to discuss the
payments because no one had commenced voluntary time. He did not
tell Mr. Eason that he would be paid other than telling him
in August that he might be paid.
[38] After August 30, 1999 to July 2, 2000,
Mr. Eason's pay was $1,100 per week plus a
per diem for weeks worked. They usually worked more
than 40 hours. They were paid for 40 hours and the salary
reflected that. His position was the only full-time elected
position. He did not have to be a part of the work-sharing
but he chose to do so to treat himself the same as the others. He
was referred to the Notice of Appeal and he disagreed with its
contents. He said that Mr. Eason agreed that he would work
full-time. He agreed to volunteer his time as well as the others
who came in later on. The Union was not in bankruptcy or
receivership.
[39] In cross-examination the witness said
that the Union is presently under supervision. That has the
effect of removing the elected officers but he continued as
business manager. The Executive Board is suspended.
[40] Mr. McCormick was familiar with
the Constitution of the International and of the Local as well.
As business manager he has the authority to discharge field
representatives under the Constitution. They have been referred
to as "field representatives", "area
representatives" and "union representatives". The
direction and control of the field representatives is that of the
business manager. As business manager, he was in charge of,
directed and supervised Mr. Eason and all others as well. A
field representative is recommended by the business manager and
the Board can accept or reject it. The business manager can
submit a new name if the first one is rejected.
[41] Mr. McCormick is the Chief
Executive Officer. Joe Whiffen is the Comptroller and is
supervised by him as well. The salaries of the staff of the
Local, when the Union is in financial difficulty, have to be
voted on by the membership at two consecutive meetings.
Work-sharing was not approved by the membership. It was not a
reduction of salary. This was a decision that had to be made. He
brought it to the Board for their recommendation but he had the
authority to do it on his own if he wanted to. The executive
could not make it without his authority.
[42] At the May 31 meeting, he did not
recall Mr. Coady or any member bringing up the question as
to why a member would be paid when not working. He did not recall
a meeting with Mr. Scott Nightingale of Canada Customs
and Revenue Agency ("CCRA") in which he told him that
he would recommend that a person be paid for a week off. He said
that if and when the monies became available, they would be paid.
That decision would have been his.
[43] He did not discuss it further with
Mr. Eason until the first week of the week-on, week-off
system. The week that he spoke to Mr. Eason would have been
the week he was scheduled to be off. Mr. Eason and he
discussed ongoing matters and when Mr. Eason volunteered his
time, Mr. McCormick told him that he would continue to do
these matters. He did not know if he identified particular
matters that he would continue with. It is a practice of a local
to have someone go to the Board as an advisor to the legal
counsel. The Whiffen Head Project had been an ongoing matter.
There was an ongoing dispute about the jurisdiction at the site.
It was important to the unions. Mr. Eason represented the
Union at the hearings. The initial steps would be rather
extensive but after that they would not be.
[44] Most of the relative information would
be brought out at the first stage of the hearings. The Whiffen
Head hearings before the Labour Relations Board came about as a
result of a number of unions challenging the arrangement of Local
1208 with the company. This would be the opportunity for Local
1208 to present its response to the application by the contesting
unions.
[45] Mr. Eason was the representative
from the Union advising counsel throughout the hearing. He would
have assigned Mr. Eason to perform that function and would
have had discussions and dialogue with him during the session. It
went on after they made the rearrangement of the work force at
Local 1208. Mr. Eason would have handled the hearings
on his weeks on and this witness would do it during
Mr. Eason's weeks off. This witness would have had
discussions with Mr. Eason about the hearing following the
rearrangement of the work force at the Local. Mr. Eason did
not say that there was any problem with that arrangement. This
witness did not act as an advisor at the Whiffen Head inquiry
after the changes in the work arrangements took place at the
Local.
[46] He confirmed that Mr. Eason acted
as the Union's representative at the hearing regarding
Fred Doucet's roofing company. He did not know if the
hearings would have been at Cornerbrook or elsewhere. He took the
position that if Mr. Eason sat on behalf of the Union as
advisor to counsel, he was acting as a volunteer. It was a
continuation of Mr. Eason's statement that he made to
him in the office that he would rather be in the office than at
home.
[47] Mr. Eason had responsibility for
the work list for the eastern region. This list is made up of the
members who asked to have their name put on it and the workers
are taken from that list as they are required according to their
position on the list.
[48] When Mr. Eason was not there
Gus Coombs would have been the person to look after the
list. Mr. McCormick, Gus Coombs, Ernest Eason and
Vic Slaney were the ones in the St. John's office
who were work-sharing. He did not recall whether Mr. Coombs
represented the Union when Mr. Eason was off.
Mr. Slaney would be working in the office when
Mr. McCormick was off performing any of his duties.
[49] He was interviewed by
Mr. Nightingale of CCRA on the telephone. He did not recall
exactly what transpired. He would assume that he had a series of
questions to ask him.
[50] He admitted that the Union and its
associated bodies had significant real estate assets during these
hearings. The assets would have been valued at between $2 million
and $3 million. In the year 2001, none of these buildings were
for sale. Some of these companies had indebtedness to the Union.
The Board of directors had 50 per cent Union members on
them. He did not believe that the other directors were put there
by the Union. When asked how else they could have been there, he
said that he could not answer that.
[51] His conversation with
Mr. Nightingale would have been to the point that anyone who
volunteered work would be paid if they had the money from the
sale of assets. He would make efforts to have them paid. It would
not be his decision.
[52] The matter of hiring the organizer is
not that of the business manager. He can recommend him to the
Executive Board. That is how Mr. Eason was hired as his
assistant.
[53] After being referred to the Union
Constitution, the witness confirmed that he had the right to fire
the field manager but he did not have the right to hire him. He
did have the supervision of him. He also was referred to
paragraph 88 which indicated that hiring is only on the
recommendation of the business manager.
[54] He made the decision to have the
workers work one-half the time and took it to the Board and
they accepted it. Ultimately, Mr. Eason was laid-off
by the Union. He did not recall the date. The last election for
the Union was in the year 2000. Mr. Eason was probably
laid off within two months of the election. He lost his position
as President of the Union. Vic Slaney was elected as
President. He worked the alternate week to the business manager.
He did not support anyone in the election. He was perceived as
having supported Mr. Slaney and was perceived as doing other
things as well.
[55] He assumed that Mr. Eason was on
the "out of work" list but Mr. Eason never spoke
to him about it. After the work arrangement, was put into effect
the Union was involved in the dispute with Brook Enterprises from
Cornerbrook. There were Labour Relations Board meetings in
Cornerbrook. Mr. Eason acted as the Union's
representative for those matters and the Union paid his expenses.
Further, Parsons Trucking had a dispute with the Union and
Mr. Eason was the representative for these hearings prior to
the 2000 election. It went on for quite a long time and is still
going on.
[56] After Mr. Eason was laid-off
from the Union he was not representing the Union at any hearing.
He is still a member in good standing of the Union. When he was
laid-off by the Union, he was finished with the Union, and before
that he was week-on and week-off.
[57] This witness did not file any
employment insurance claim. It would not have been any benefit
for him to do so. He did not suggest to Mr. Eason that he
file or not file. There was probably a conversation about it and
he would have told him what his intentions were.
[58] During the work arrangement the workers
were paid for the hours they worked. They were paid the same
salary. The per diem allowance was paid prior to the
work arrangement. It may have been $250 a week. This may have
changed at the time of the work arrangement, but he was not sure.
It may have been $300 a week. To the best of his knowledge they
did not get it during the week-off. There was a request
made that they receive their per diem during the week
that they did not work. The only week for which you are entitled
to receive the per diem is the week during which you
are employed.
[59] The Constitution may say that the
reduction in salary has to be voted on but this did not take
place with this Local. If this were a voluntary arrangement then
the International would not push the Constitution unless there
was a complaint by one of the recipients. Mr. Eason did not
complain to him. He is the Chief Executive Officer of the
Local.
[60] He was asked how he could contemplate
that people would be paid for work that they had not done, that
is, while they were volunteering. His answer was that they would
be compensated for the time that they volunteered. He did not say
that they would be retroactively considered to be employed.
[61] Mr. Slaney was not part of the
Executive Board but three others were. There were seven in total.
Mr. Hallahan was working on the West Coast and was employed.
He was also part of the work arrangement. This witness would have
abstained from voting on the compensation for the voluntary work
and this could have resulted in a tie at the Board.
[62] In cross-examination on behalf of
the Intervenor, the witness said that it was his intention that
if Mr. Eason was not available to go to the Labour Relations
Board hearings he would go in his place. He relied on counsel
continuing to be there. The ongoing matters still require a Union
representative and Mr. Eason is not the advisor. It is
satisfactory.
[63] With regards to the matter of setting
salary, this is in the domain of the Executive Board. If there
was a reduction it would have to be done by the Executive Board.
Any compensation for voluntary time would be made by the Board on
the business manager's recommendation. The work arrangements
started in 1999 and in the year 2000 every position, including
his own, were up for re-election plus the Executive Board.
Most positions were contested. His was not. If he was not
re-elected as business manager, he would have made a
recommendation to the new Board regarding compensation for
voluntary time and it would be up to the Board. There was no
guarantee that it would be paid. He did not have to take
work-sharing or a cut in wages, but he did so. No one including
Mr. Eason, complained about the arrangement. He did not
recall whether the sale of assets was known before the work
arrangement was started.
[64] He was referred to
Exhibit R-2, the R.O.E. of Ernest Eason, and he
said that there was a time when Mr. Eason was terminated as
organizer and hired as business agent, but he had nothing to do
with his change in salary.
Argument on behalf of the Appellant
[65] In argument, counsel for the Appellant
agreed that this case must be decided on its facts. The law is
not in dispute. The question to be asked is, during all of the
disputed period, was the Appellant engaged in insurable
employment?
[66] The Appellant has testified throughout
that he conducted himself exactly as an employee would. He went
to the office and performed his duties with respect to the staff
and then went to the Labour Relations Board hearings as an
advisor to legal counsel for the Local in matters ongoing in
which he had previously acted. There was no discussion about
compensating the Appellant for time off. He talked to
Mr. McCormick and was told to continue on. He spoke to
Mr. McCormick in his office after the Board meeting about
how these important functions regarding the Local's business
would be carried on with respect to the Labour Relations Board
hearing and he was told to continue on.
[67] The Appellant said that there was
discussion that in the event that funds became available (from
the sale of assets), these persons would be reimbursed and
compensated. One must ask the question: What would they be
compensated for? This is not a charitable organization.
[68] What happened was not a reduction in
work but a reduction in wages with a reasonable expectation that
Mr. Eason would get the amount later that he did not receive
on an ongoing basis.
[69] Every Monday morning Mr. Eason
went to the Business Trade meeting to attend on behalf of the
Union. He did all things exactly the same as he had done before
the work arrangement.
[70] Mr. McCormick said that all of the
workers did this. Their compensation in the future was not just a
pipe dream. The Union had assets for sale at the time.
Mr. McCormick brought the matter forward.
[71] Why would Mr. McCormick state that
he would absent himself from the vote. He was only preparing for
subsequent questions of counsel leading to the conclusion that
there would have been a majority vote.
[72] The workers could not give themselves a
gratuity. They could only compensate themselves for employment.
The ordering of compensation and the absence of employment are
mutually exclusive. The fact that it was done by four people who
were performing all of the same duties as they had performed
previously as employees is important. It would not be probable
that all of these employees would so act. One would not expect
that anyone would do this all of the time for free.
[73] Counsel submitted that the appeal
should be allowed and that the Court should find that the
Appellant, during the period in issue, was in insurable
employment for the whole period and that he should be assessed as
having been engaged in insurable employment for the whole 27
weeks as opposed to 18 weeks as proposed by the Minister.
Argument on behalf of the Respondent
[74] Counsel for the Respondent stated that
the questions in issue in this appeal are: (1) what are the
insurable hours and (2) what were the insurable earnings? The
Minister's findings that the Appellant was engaged in
insurable employment for 1,380 hours for total insurable earnings
of $17,275, as indicated in Exhibit R-2, is the proper
result.
[75] Regulation 10(1) is
applicable rather than Regulation 9(2). Under
Regulation 10(1) the Appellant is deemed to have
worked 1,380 hours as set out in Exhibit R-2, the
R.O.E. for the Appellant during the appropriate period.
[76] Regulation 10(1) states as
follows:
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.
In the case at bar the evidence of the employer, and the
R.O.E., Exhibit R-2 indicate that the Appellant worked
1,380 hours and had total insurable earnings of $17,275. This has
not been rebutted by the Appellant and no satisfactory evidence
has been introduced that he worked otherwise.
[77] Even if the Court accepts the argument
that there was insurable employment during the whole period of
time, there was insufficient evidence adduced by the Appellant to
indicate what the hours were that he actually worked other than
the clear evidence of the employer as set out in
Exhibit R-2.
[78] The Appellant is required to introduce
satisfactory evidence to establish on a balance of probabilities
the number of hours that he actually worked and he was not able
to do so. He has not satisfied this burden. The Minister's
decision should be confirmed.
[79] Counsel referred to a number of cases
which are of assistance on the question of the type of proof
required to establish the number of hours that were actually
worked but these cases are not of assistance on the factual
matter which the Court must decide, that is, whether or not the
Appellant was working on a full-time basis or only on an
alternate-week basis.
Argument on behalf of the Intervenor
[80] Counsel pointed out that
Mr. McCormick decided to reduce expenses of the Union Local.
This was done on a consultative basis by approaching the Board
and making a recommendation which impacted on other workers as
well as the Appellant. Mr. Eason indicated that he disagreed
with the decision that was made but the majority ruled. He
believed that someone else should be laid-off and that
Mr. Cormick could have done it otherwise. It was also noted
that Mr. McCormick participated in the work-sharing
process.
[81] In his evidence, Mr. Eason talked
about the Executive Board meeting at which they were told that
when money became available they would be paid. He answered
Mr. Earle that during the Executive Board meeting it was
said that if funds became available they would be reimbursed.
[82] Later on, he said that in a meeting
after the Executive Board meeting in Mr. McCormick's
office, the same was said. However, the payment for
off-weeks did not come up at that time. He referred to what
was said at the Executive Board meeting in that they would be
paid if funds became available. Then he said that the matter of
pay came up at the Board meeting but it did not come up at the
private meeting.
[83] That confirms Mr. Eason's
position that this promise was made at the Board meeting. This is
denied by Mr. McCormick. If this was said at the Board
meeting, why would he have to consult with Mr. McCormick
afterwards, at a private meeting in order to receive special
treatment, since it was covered at the Board meeting? That is the
fundamental dilemma that the Appellant finds himself in. If he
had the Board's commitment, why would he consult with
Mr. McCormick about staying on to do these important
tasks?
[84] Later on, why would he have to express
any concern about it since he had the Board's understanding
that they would be paid in full later on. Mr. McCormick said
that the week-on, week-off arrangement was clearly put to them
and Mr. Eason's only concern was the pairing.
[85] Mr. Coombs telephoned
Mr. McCormick at his office and said that Mr. Eason was
there in the office and he wanted to know why. He asked
Mr. Eason and Mr. Eason confirmed that he was
volunteering his time. Mr. Coombs said that he was just
trying to look good before the Union. Then, the next day, all of
the other workers decided to volunteer their time as well so as
not to look bad in front of the members of the Union. Weeks after
that Mr. McCormick said that he would try to get them some
pay but he made no commitment.
[86] The further dilemma that the Appellant
has is why would Mr. Coombs be surprised if they had agreed
at the Board meeting as Mr. Eason had indicated?
Mr. Eason admitted that Mr. Coombs was very surprised
and asked why he was there (in no uncertain terms). There were
direct questions asked and answers given that show that
Mr. Eason knew all along that he had been laid-off.
There was obviously no doubt at the Board meeting as to what the
situation was going to be. Later on, the Appellant indicated that
he was in the minority and that he would have to go along with
the majority. Later, the work-sharing arrangement was brought up
by Mr. McCormick. That is what was talked about. He
indicated later on that because of his week-on and
week-off arrangement, he was terminated. Further, he said
that he was bound by the arrangement but he was not taking the
time off.
[87] He also admitted that
Mr. McCormick made it clear that the new working
arrangements would apply to everyone. He answered yes to that
question. He talked to Mr. McCormick about filing for
employment insurance. How could he be entitled to file for
employment insurance if he was continuing on to work as he did
before and was being paid for it? If he were laid-off, he
could certainly have filed for employment insurance. He agreed
with that after the meeting. He had the option of applying for
employment insurance and have it clawed-back or not
applying at all.
[88] Mr. Eason was familiar with the
Constitution and knew that Mr. McCormick could not bind the
Union to pay Mr. Eason for voluntary work. He did say that
he would do what he could in appreciation thereof. With respect
to the attendance of Mr. Eason at the Labour Relations Board
hearings, it was not necessary that he be there.
Mr. McCormick said that he would do it if Mr. Eason was
not available. These hearings went on after Mr. Eason's
employment was finally terminated and others went in his
place.
[89] This is a factually driven exercise.
One must look at Mr. Eason's evidence
in toto. There was a recognition on his part
that he was on part-time lay-off. There was no commitment
given because Mr. McCormick could not give it. It was only
weeks later that the business came up about the election. Any
payment given to the Appellant apart from what is set out in
Exhibit R-2 was a gratuitous payment in appreciation
for his voluntary work. The appeal should be dismissed.
Rebuttal
[90] In rebuttal, counsel for the Appellant
said that the accountant testified that Mr. Eason was not
there during the week-on week-off basis in June. The
person who worked in the office did not see much difference in
the time that Mr. Eason spent in the office during the
period in question and the time that he spent there previously.
Why would he go to Mr. McCormick with respect to this
problem after the Board meeting? Because Mr. McCormick was
all powerful in the Union. All others went into work as well.
This is an interesting argument. You would not find all of them
doing it on a voluntary basis. One of them might do it but all of
them would not. It was a short-term reduction of salary only. It
was not a discontinuance of their employment. The Minister's
decision is incorrect.
Analysis and Decision
[91] The Court is satisfied that there are
two issues to be decided in this case. The first issue is whether
or not the Appellant was engaged in insurable employment at any
time other than as set out in the Reply. If he was engaged in
insurable employment at any time during the period in issue other
than as set out in the Reply, then the Appellant's burden is
to establish on a balance of probabilities the number of
insurable hours during which he was employed during that period
and the amount of the insurable earnings. This burden is on the
Appellant from the beginning to the end and the Respondent has no
burden in that regard.
[92] In dealing with the issues, the
question of credibility of the witnesses is very significant. In
essence, the Court has before it two different scenarios. The
scenario put forward by the Appellant is in complete conflict
with the evidence presented by the Respondent and the Intervenor
(in respect to the main issues).
[93] The Court is satisfied that the
evidence of Mr. McCormick, who is the business manager of
the Local, was given in a forthright manner, was complete,
detailed, was based upon intimate knowledge of the workings of
the Union and as far as this Court is concerned, was given
without prejudice with respect to the Appellant or any other
member of the Union during the relevant period of time. The Court
is satisfied that his evidence was not concocted nor contrived in
any way. There was a suggestion that this witness
dove-tailed his evidence in anticipation of certain
questions that were going to be asked of him and the inevitable
thrust of such a suggestion was that these answers were not
candid and forthright but were concocted and advanced so as to
thwart the conclusion that counsel for the Appellant was
attempting to have unfold or believed was inevitable. The Court
does not accept this position and does not find that this witness
falls under this category whatsoever.
[94] With respect to the evidence of the
Appellant himself, the Court finds that it is not as acceptable
as the evidence of Mr. McCormick, and in every case where
that evidence is contrary to that given by Mr. McCormick,
the Court prefers the evidence of Mr. McCormick to that of
the Appellant. The Court is satisfied that the evidence of
Mr. McCormick, based upon the overall impression that he has
created on the Court, is more than likely to be more accurate and
factual than the evidence given by the Appellant.
[95] Further, the Court is satisfied that a
substantial amount of the evidence given by the Appellant
himself, having due regard to the evidence given in direct and in
cross-examination, corroborates the evidence given by
Mr. McCormick. The evidence of the Appellant was
inconsistent in a number of respects and it was unreasonable to
conclude as he did, if he did so conclude, that he was engaged in
insurable employment during the whole period of time and that he
was not working on a voluntary basis and on the week-on,
week-off scenario as depicted by Mr. McCormick.
[96] In this regard, the argument of counsel
for the Intervenor is well taken where he pointed out a number of
instances where the evidence of the Appellant was inconsistent
with the position that he takes in this appeal and was consistent
with the evidence offered by Mr. McCormick that the parties
agreed to work on a week-on week-off basis. This work
would not be paid for except in the event that monies became
available through the sale of assets from the Local. They might
be compensated. Here again, the most believable evidence is that
this was not a commitment on behalf of the business
manager who was really not in a position to make such a
commitment. He merely made a commitment to go to bat for the
workers who were on the work-sharing scenario and try to obtain
some compensation for them in the event that money became
available. There was no commitment on his part other than that.
The workers agreed to the work-sharing system from the beginning
and certainly after the meeting of May of the Board.
[97] Even the evidence of the Appellant
makes it clear that he considered that he was outvoted at that
meeting and he admitted that the majority ruled. It was only
after that meeting that he discussed the matter of compensation
again with Mr. McCormick and Mr. McCormick said nothing
nor did anything which would contradict the earlier decision made
by the executive that there would be a work-sharing. At
other places in the evidence as well, it is clear that the
Appellant took no objection to this work-sharing method and was
prepared to go along with it.
[98] The point made by counsel for the
Intervenor is also well-taken where he points out that in a
discussion with Mr. McCormick, the Appellant was
contemplating making application for employment insurance but he
decided not to do so because it was not in his benefit as it
would be clawed-back. Why would he be discussing the
question of employment insurance if he considered himself to be
still employed because he would not be eligible for such? It only
makes sense if one concludes that he had accepted the
work-sharing method and knew that he was only going to be working
part-time and that he would not be restituted for the time that
he spent in the office on a voluntary basis, except to the extent
that there might be a possibility of him being restituted
financially if monies became available.
[99] He had no reason to believe, and indeed
did not believe, that what he would be receiving would be salary
or that at any time he would be continuing on in insurable
employment as before.
[100] It is also significant that after the Board
meeting, the Appellant appeared at the office during a week which
he would normally not be working under the work-sharing method
and Mr. Coombs confronted him in quite a startled manner and
to such an extent that he had to discuss the matter with
Mr. McCormick. He, in turn, discussed the matter with
Mr. Eason and confirmed that Mr. Eason was only there
on a voluntary basis and that he need not go home because this
was volunteer work. In response to that Mr. Coombs and the
other workers decided that the Appellant might be getting an
advantage over them in respect to the way they were perceived by
the Union and they decided to go in and work on a volunteer basis
as well.
[101] These pieces of evidence are only consistent with
the conclusion that the Appellant, from the time of the Board
meeting, when the work-sharing was proposed, was prepared
to accept it and agreed to go in and work on a voluntary basis in
the hope that possibly in the future he might be restituted
financially for this work. The Court is satisfied that there was
no guarantee that this was going to take place and nothing was
said or done by the business manager of the Local, or anyone else
on behalf of the Local, to lead the Appellant inevitably to
conclude that he would be paid.
[102] The Court does not share the position of counsel
for the Appellant that the absence of employment and the matter
of compensation are mutually exclusive. Any indication that there
might be some compensation in the future was merely a means of
thanking the workers for volunteering their time in the event
that money became available and in the event that such a payment
was to be approved by the Executive Board. Surely
Mr. McCormick was not able to commit the Union to such
payment and such a payment, although not a pipe dream, certainly
was out there in the realm of possibility only. It cannot be
equivalated to monies received by the Appellant and the other
part-time workers as salary.
[103] Further, the Court does not accept the argument by
counsel for the Appellant that one would not expect that all of
these people would volunteer their work and agree not to be paid
for it. Under the circumstances as disclosed by the evidence, the
Appellant himself made it clear why he would do it and the other
workers also appear to have wanted to do it to protect their
position in the Union. This was certainly a reasonable action on
their part having regard to what they obviously concluded was a
danger that they faced if they did not perform the same voluntary
work as the Appellant.
[104] The Court is not moved by the fact that
Mr. Eason and the other part-time workers performed
the same tasks as they performed while they were employed. One
would expect that they would do the same type of thing as that is
what they were trained to do as employees.
[105] In the circumstances, the Court finds that their
actions were not improbable or unexpected and indeed were
reasonable under the circumstances. In the end result, the Court
is satisfied that the Appellant has not met the burden upon him
by showing that the Minister's decision was incorrect.
[106] With respect to question 1, the Court is satisfied
that the Appellant has not shown, on the balance of
probabilities, that he was engaged in insurable employment at any
time other than those periods of time as referred to in
Exhibit R-2, his own R.O.E.
[107] If the Court were satisfied that the Appellant was
engaged in insurable employment at some time other than those
periods set out in the R.O.E., and as relied upon by the
Minister, the Court is not satisfied that the Appellant
established, on the balance of probabilities, what the number of
hours of insurable employment would be and what the insurable
earnings were. No evidence of a specific nature was introduced by
the Appellant in this regard and he would fail in that burden as
well.
[108] In the end result the appeal is dismissed and the
Minister's decision is confirmed.
Signed at Ottawa, Canada this 13th day of November 2003.
Margeson, J.
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