Date: 19990528
Docket: 98-1062-UI
BETWEEN:
ANGELA MURPHY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for judgment
Bonner, J.T.C.C.
[1] The Appellant appeals to this Court from a decision made
on an appeal to the Minister of National Revenue
("Minister") under section 90 of the Employment
Insurance Act ("Act"). The notification of
the decision of the Minister which was sent to the Appellant
under subsection 93(3) of that Act stated:
" ...
It has been decided that you were engaged in insurable
employment from January 9, 1997 to March 22, 1998 while employed
with Lennox & Addington County General Hospital Association.
It was also decided that you had 677 insurable hours of
employment during the period.
...
The decision in this letter is issued pursuant to subsection
93(3) of the Employment Insurance Act and is based on
paragraph 5(1)(a) of the Employment Insurance Act
and section 10 of Employment Insurance
Regulations."
[2] It is the portion of the decision of the Minister
regarding hours of insurable employment which is in issue before
this Court. The finding that the Appellant had 677 such hours
rests on a conclusion that hours when the Appellant served the
hospital in "standby" status are not hours of insurable
employment.
[3] The Appellant was employed as an x-ray technician by the
hospital referred to in the Minister's decision. During the
period in issue she worked in the usual way in the x-ray
department located at the hospital premises. For that she was
paid at an hourly rate of approximately $18.00. In addition she
worked standby hours. Standby shifts extend from 10:00 p.m. to
8:00 a.m. the next day. Standby duty at the hospital is divided
among four x-ray technicians. The hospital posts a calendar
naming the worker who is on standby duty each night. If x-ray
services are required after 10:00 p.m., a person on the staff at
the hospital calls the technician who is on standby that night.
The technician is required when on standby to:
a) remain close to a telephone and keep the hospital informed
of the number at which he or she can be reached; and
b) stay sufficiently close to the hospital to permit him or
her to reach the hospital within a maximum period of twenty-five
minutes.
A technician is paid at the rate of $2.50 per hour for time
spent on standby duty if he or she is not called in to the
hospital. If called in, the technician is paid at a considerably
higher rate.
[4] The decision in this appeal must turn on the meaning to be
ascribed to the words "...the number of hours that the
person actually worked...". Those words are found in section
9.1 of the Employment Insurance Regulations
("Regulations") which reads:
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.
[5] The authority to enact the Regulation is found in
subsections 6(3) and 55(1) of the Act. Those provisions
are found in Part I of the Act dealing with unemployment
benefits. They read:
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.
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.
[6] It was the position of the Respondent that Mrs. Murphy was
free to do what she wished during her standby hours. She could
stay at home, take care of her children or even sleep at night.
Counsel for the Respondent submitted that this is not working in
the sense of "actually" working within section 9.1 of
the Regulations. Further, counsel argued that
"actually" working in the case of the Appellant
requires the Appellant's presence at the hospital and the
performance by her of the work of an x-ray technician. Counsel
sought to support her interpretation of section 9.1 by reference
to Stubart Investments Limited v. The Queen,[1] a case in which the
Supreme Court of Canada expressed approval of the following
passage from Dreidger:[2]
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and
in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the
intention of Parliament.
Counsel did not point to any element of the legislative scheme
which would support the proposition that hours
"actually" worked do not include hours when the
employee works outside the hospital premises or hours when the
employee's duties are less onerous than normal.
[7] The Appellant argued that she was performing services
while on standby, for, by remaining close to a telephone and
within a twenty-five minute range of the hospital, she was doing
what was required of her by the employer in exercise of the
rights of the employer under the contract of employment and, in
particular, the part of that contract relating to standby duty.
As well, the Appellant pointed out that wages paid for hours
worked on standby duty were treated as insurable earnings in
respect of which an employee's premium was payable under the
Act and she argued that in those circumstances it was
inappropriate to treat such hours as something other than hours
worked in insurable employment.
[8] In considering the interpretation of section 9.1 it must
be remembered that it is subordinate legislation. The
Regulation is intended to compliment the Employment
Insurance Act and cannot be interpreted so as to amend, alter
or cut down the parent legislation. In my opinion it is not
possible to interpret the section 9.1 term "hours that the
person actually worked" to produce fewer hours than that
person's "number of hours of insurable employment"
as that term is used in subsection 6(3) and elsewhere in the
Act.
[9] The appellant's employment by the hospital was, no
doubt, insurable employment under paragraph 5(1)(a) of the
Act. Consequently the hospital was obliged under paragraph
82(1)(a) of the Act to deduct, and it did deduct,
employee's premiums from remuneration "... for any
period for which the remuneration is paid ...". Paragraph
82(1)(a) reads:
82. (1) Every employer paying remuneration to a person they
employ in insurable employment shall
(a) deduct the prescribed amount from the remuneration
as or on account of the employee's premium payable by that
insured person under section 67 for any period for which the
remuneration is paid;
Here each hour of standby time is clearly a period for which
remuneration was paid. If employment is insurable employment then
every hour worked in that employment must be an hour worked in
insurable employment. It is difficult to see how it can be
argued, absent some kind of colorable arrangement, that an hour
during which an employee was doing what was lawfully required of
her by the employer and for which payment was made and a premium
collected is not an hour of insurable employment. The
considerations on which the Respondent relied, place of work and
difficulty of the task assigned are, in my opinion,
irrelevant.
[10] The appeal is therefore allowed and the decision under
appeal is varied by the addition to the 677 hours mentioned in
the decision of each hour of standby duty during the period.
Signed at Ottawa, Canada this 28th day of May 1999.
"Michael J. Bonner"
J.T.C.C.
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