[OFFICIAL ENGLISH TRANSLATION]
Date: 20011122
Docket: 2001-1014(EI)
BETWEEN:
VILLE DE LAVAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard at
Montréal, Quebec, on September 19, 2001.
[2] By letter dated February 15,
2001, the Minister of National Revenue (the "Minister")
informed the appellant of his decision that the employment of
Richard Campeau, the worker, was insurable on the ground
that there was an employer-employee relationship between the
Ville de Laval (the "City") and the worker during the
periods from January 1 to December 31, 1999, and from
January 1 to July 14, 2000.
[3] Subparagraph 5(1) of the
Employment Insurance Act reads in part as follows:
5(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more
employers, under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other
person and whether the earnings are calculated by time or by the
piece, or partly by time and partly by the piece, or
otherwise;
[4] Subsection 2(1) of the
Insurable Earnings and Collection of Premiums Regulations
(Regulations) reads as follows:
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
(b) the
amount of any gratuities that the insured person is required to
declare to the person's employer under provincial
legislation.
[5] The burden of proof is on the
appellant. It has to show on the balance of evidence that the
Minister's decision is unfounded in fact and in law. Each
case stands on its own merits.
[6] In making his decision, the
Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) the worker began
working for the appellant in September 1976;
(b) during the
periods in issue, the worker was on leave as a result of a work
accident;
(c) during the
periods in issue, the worker received his full remuneration from
the appellant in accordance with the collective agreement;
(d) the appellant
was reimbursed by the Commission de la santé et
sécurité au travail (CSST) for a portion of the
remuneration paid to the worker.
[7] The sole witness to be heard in
this case was Denis Bertrand, Coordinator, Research Budget,
for the Ville de Laval.
[8] According to that witness, the
worker began working for the appellant in September 1976. During
the periods in issue, the worker was on leave as a result of a
work accident.
[9] Denis Bertrand stated that
the worker had received an income replacement indemnity in
accordance with article 25.04 of the Collective Agreement,
which reads as follows:
[TRANSLATION]
Income Replacement Indemnity
In all employment injury cases, the City pays the employee an
income replacement indemnity determined as follows:
1. The
regular salary is equivalent to the number of hours usually
worked multiplied by the wage of the employee's
classification at the time of his departure.
2. The regular
salary, obtained under the previous paragraph, is reduced by the
following deductions:
-
provincial and federal income taxes;
-
unemployment insurance;
-
Quebec Pension Plan.
3. The
City pays an income replacement indemnity equivalent to the
amount obtained under the previous paragraph. From that
indemnity, the City makes the following deductions:
-
employee contributions to the group insurance plan and
supplementary pension plan;
-
union dues.
[10] The worker had 19 work accidents during
his years in the payer's service. The last work accident
occurred on January 17, 1994, and the worker did not return
to work.
[11] The witness testified that, following
that work accident, the appellant acted as the agent of the
Commission de la santé et sécurité au
travail (CSST) by paying the worker advances until the Commission
had made a decision.
[12] The appellant directly paid the worker
his usual weekly salary, in accordance with the CSST guide, that
is, the amount of $406.00. The CSST reimbursed the appellant for
that amount a few weeks later. The appellant paid the worker a
supplement of $76, less the deductions enumerated in
article 25.04 of the Collective Agreement.
[13] When the CSST rejects an injury, the
worker must return the amounts paid. In the case of this worker,
the CSST found that an injury had occurred as a result of a work
accident, and the worker therefore received the amounts
determined under article 25.04 of the Collective Agreement
during the periods in issue.
[14] During the periods in issue, the worker
enjoyed the benefits of all the insurance policies held under the
Collective Agreement, such as health insurance and dental
insurance.
[15] The evidence showed that the worker
received his full remuneration from the appellant during the
periods in issue in accordance with the Collective Agreement. The
CSST reimbursed the appellant for a portion of the remuneration
paid to the worker.
[16] What must be determined is whether the
worker's remuneration was insurable during the periods in
issue.
[17] Paragraph 2.1(a) of the
Regulations defines insurable earnings as follows:
"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 . . ."
[18] In Canada (Attorney General) v.
Quinlan, A-1206-92, dated February 28, 1994,
the Federal Court of Appeal confirmed the umpire's decision
of June 11, 1992, the conclusion of which reads in part as
follows:
[TRANSLATION]
As to the argument that the claimant received partial wage-loss
insurance benefits and not remuneration, I would recall once
again that the text of the agreement between the employees and
the employer states that the employee [TRANSLATION]
"continues to receive his full salary". The employer is
not simply an intermediary for the payment of wage-loss insurance
benefits to the employee by the insurer.
[19] In Nanaimo Regional General Hospital
v. Canada (Minister of National Revenue - M.N.R.), [1997]
F.C.J. No. 1706, the Federal Court of Appeal concurred in
the decision in Quinlan cited above, writing:
We are all of the opinion that the facts in this case cannot
be distinguished from those in the Quinlan case (Attorney General
of Canada v. Quinlan, unreported, F.C.A. A-1206-92, February 28,
1994).
[20] The facts related in the decision by
Judge Watson of this Court in Nanaimo Regional General
Hospital, [1997] T.C.J. No. 39, supra, are as
follows:
... Once the W.C.B. acknowledged her claim, she started
receiving cheques retroactively for approximately 100% of her
normal wages during the period in issue. She received
cheques from the hospital for approximately the full amount of
her normal wages that included the 75% from the W.C.B. and the
25% top up amount pursuant to the collective agreement as if she
had been at work; she was not considered by the hospital to be on
sick leave but was paid as if she was on continuous service.
[21] During the periods in issue, the worker
received his full salary and health and dental insurance benefits
as though his employment with the employer had not been
interrupted.
[22] The worker received his full
remuneration from the appellant in accordance with the Collective
Agreement, and the CSST reimbursed the appellant for a portion of
that remuneration paid to the worker.
[23] Whether the total amount received is
called an income replacement indemnity or wage-loss insurance is
of little importance. What is important is that the worker
received weekly amounts from the employer in respect of that
employment.
[24] The worker held insurable employment
within the meaning of the Employment Insurance Act during
the periods in issue since he was bound to the appellant by a
contract of service within the meaning of
paragraph 5(1)(a) of that Act.
[25] The remuneration received by the worker
therefore constituted insurable earnings within the meaning of
the Employment Insurance Act during the periods in
issue.
[26] The appeal is dismissed.
Signed at Ottawa, Canada, this 22nd day of November 2001.
D.J.T.C.C.
Translation certified true
on this 28th day of February 2003.
Sophie Debbané, Revisor
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