Chisholm v. M.N.R., docket 2000-1049-EI

Date: 20010411

Docket: 2000-1049-EI

BETWEEN:

DEIRDRE CHISHOLM,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Bowman, A.C.J.

[1]            This is an appeal under the Employment Insurance Act (the "EI Act") from a decision that during the period of December 1, 1998 to April 12, 1999 the appellant had 665 hours of insurable employment. The appellant contends that she had at least 755.

[2]            Subsection 55(1) of the EI Act reads

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.

[3]            Subsections 10(1) to 10(6) of the Regulations made pursuant to subsection 55(1) read

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.

(2)            Except where subsection (1) and section 9.1 apply, where there is doubt or lack of specific knowledge on the part of the employer as to the actual hours of work performed by a worker or by a group of workers, 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.

(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.

(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.

(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.

(6)            Subsections (1) to (5) are subject to section 10.1.

[4]            It is common ground that under section 7 of the EI Act the appellant requires 700 hours to qualify for employment insurance benefits.

[5]            The assumptions upon which the Minister based his decision are the following

(a)            the Appellant was employed by the Employer as Director of the Grimsby Public Art Gallery;

(b)            the Appellant's first day worked was December 1, 1998;

(c)            the Appellant was dismissed by the Employer and her last day worked was April 12, 1999;

(d)            at all material time, the Appellant was paid an annual salary of $40,150.00;

(e)            according to the terms of the employment, the standard or normal work week for full-time staff, including the Appellant, was 35 hours per week;

(f)             based on the 35 hour work week and the fact the Appellant actually worked 19 weeks for the Employer, she therefore had 665 hours of insurable employment which was calculated as follows:

                                19 weeks x 35 hours = 665 hours

(g)            no work was performed by the Appellant after April 12, 1999;

(h)            the Appellant was not paid for any overtime by the Employer;

(i)             the Appellant had 665 hours of insurable employment.

[6]            As Director of the Grimsby Public Art Gallery, Ms. Chisholm's responsibilities were broad and varied. They included

(a)            overseeing the staff;

(b)            public and territorial programming;

(c)            fund raising;

(d)            volunteer co-ordination;

(e)            community relations;

(f)             obtaining provincial and federal funding, including applying annually;

(g)            public education;

(h)            scholarly studies;

(i)             preparation for exhibits and meetings with artists who were exhibiting;

(j)             visiting studios;

(k)            meeting with other art galleries about loaning of art work;

(l)             publicity about exhibitions;

(m)           posting information on the internet;

(n)            giving guidance to the educational co-ordinator with respect to tours (the educational co-ordinator quit at some point in the appellant's tenure and she had to take over her duties);

(o)            preparation of photography for publicity purposes;

(p)            attending openings and receptions every four to six weeks, on the weekends or in the evenings;

(q)            speaking to sponsors, groups and clubs;

(r)             attending staff meetings.

[7]            I have mentioned most of her duties as she described them in evidence. The regimen was onerous and gruelling.

[8]            It has been established beyond any possible doubt that she worked far more than the 35 hours per week mentioned in the reply to the notice of appeal. She could not possibly have accomplished what was expected of her in seven hours a day, five days a week. Exhibit A-2 is described as Overtime Hours for Deirdre Chisholm. It is a document which she prepared from her own daily appointment book and it shows an additional 99.75 hours. I regard this as a minimum. The conclusion that she worked at least 755 hours in her job as Director of the Grimsby Art Gallery in the period is incontrovertible. Indeed, it is not challenged.

[9]            The question is whether these hours are hours of insurable employment. The respondent refers to the Terms of Employment approved on December 16, 1998 by the Grimsby Public Library Board. Section 4.1 of that document reads

A normal work-week for staff consists of thirty-five (35) hours on a five day basis.

[10]          A statement of this sort in a document approved by the Library Board proves very little about how many hours the appellant worked. It sets a minimum. The appellant was a professional with wide-ranging responsibilities and it was implicit in her terms of employment that she would devote as much time to the performance of her duties as was necessary to get the job done.

[11]          Counsel also points to the fact that she was paid no overtime, but that there was an informal arrangement regarding "lieu days" - i.e. days off in lieu of overtime. In fact, the appellant never did take any time off as "lieu days".

[12]          I have tried, without success, to see just how the fact that the appellant was paid no overtime and might under a rather vague and unofficial understanding have been entitled to some "lieu days" can militate against her position that she worked 755 hours.

[13]          The fact is she was not paid by the hour. She was paid an annual salary and was expected to put in whatever time was required.

[14]          Exhibit R-4 is a record of employment. It shows 665 hours worked by the appellant. The figure of 700 was written originally and then struck out and 665 inserted. Such a document prepared by a secretary or clerk and not approved by the appellant is of little evidentiary value. Such documents are routinely ignored by the government authorities and by this court. They are certainly not conclusive and cannot of course prevail against the clear evidence that the appellant worked over 755 hours.

[15]          Finally, I come to section 10 of the Regulations. It is a regulation authorized by section 55 of the EI Act to provide some assistance in determining how many hours have been worked by an employee in cases where there is doubt or lack of agreement between the employer and the employee or difficulty in determining the number of hours worked. It clearly is not intended to displace clear evidence of the type that we have here of the number of hours actually worked. To say that the rules set out in section 10 of the Regulations could prevail against the true facts would be to put a strained and artificial construction on this subordinate legislation that would take it far beyond what section 55 of the EI Act intended or authorized. Indeed subsections (4) and (5) of section 10 are premised upon the actual number of hours not being known or ascertainable, or upon there being no evidence of excess hours. That is demonstrably not the case here.

[16]          I have found the decisions of Bonner J. in Franke v. Canada, [1999] T.C.J. 645, and of Weisman D.J. in McKenna v. Canada, [1999] T.C.J. 816, and Bylow v. Canada, [2000] T.C.J. 187, and of Beaubier J. in Redvers Activity Centre Inc. v. Canada, [2000] T.C.J. 414, of great assistance. They support the broad, and in my view, common sense conclusion that where there is evidence of the number of hours actually worked there is no need to have recourse to any other method.

[17]          The appeal is allowed and the decision of the Minister of National Revenue that the appellant had worked 665 hours in the period December 1, 1998 to April 12, 1999 is varied by deleting the figure 665 and substituting therefor the figure 755 hours.

Signed at Ottawa, Canada, this 11th day of April 2001.

"D.G.H. Bowman"

A.C.J.

COURT FILE NO.:                                                 2000-1049(EI)

STYLE OF CAUSE:                                               Between Deirdre Chisholm and

                                                                                The Minister of National Revenue

PLACE OF HEARING:                                         Hamilton, Ontario

DATE OF HEARING:                                           March 23, 2001

REASONS FOR JUDGMENT BY:                      The Honourable D.G.H. Bowman

                                                                                Associate Chief Judge

DATE OF JUDGMENT:                                       April 11, 2001

APPEARANCES:

Counsel for the Appellant:                                  Andrew C. Bomé, Esq.

Counsel for the Respondent:                              Sointula Kirkpatrick

COUNSEL OF RECORD:

For the Appellant:                

Name:                                                                      Andrew C. Bomé, Esq.

Firm:                                                                        McQuesten Legal & Community Services

                                                                                Hamilton, Ontario

For the Respondent:                                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                Ottawa, Canada

2000-1049(EI)

BETWEEN:

DEIRDRE CHISHOLM,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Appeal heard on March 23, 2001, at Hamilton, Ontario, by

The Honourable D.G.H. Bowman, Associate Chief Judge

Appearances

Counsel for the Appellant:          Andrew C. Bomé, Esq.

Counsel for the Respondent:      Sointula Kirkpatrick

JUDGMENT

          It is ordered that the appeal be allowed and the decision of the Minister of National Revenue made under the Employment Insurance Act that the appellant had worked 665 hours in the period December 1, 1998 to April 12, 1999 be varied by deleting the figure 665 and substituting therefor the figure 775 hours.

Signed at Ottawa, Canada, this 11th day of April 2001.

"D.G.H. Bowman"

A.C.J.