Date: 20110207
Docket: T-1036-10
Citation: 2011 FC 137
Ottawa, Ontario, February 7,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JESSICA KATHRYN WEGENER
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 18(1) of the Federal Courts Act (the
Act) for judicial review of a June 2, 2010 decision of the Department of
Human Resources and Skills Development Canada (HRSDC), in which it determined that
it lacked jurisdiction to back-date the start date of the applicant’s self-employment
remittance of Employment Insurance premiums for Special Benefits.
[2]
On
January 1, 2010, the Fairness for the Self-Employed Act, 2009 S.C. (FSE
Act), amended the Employment Insurance Act, S.C. 1971, c.48 (EIA).
The effect of the amendment was to allow self-employed persons the opportunity
of participating in certain aspects of the Employment Insurance scheme established
by the EIA.
[3]
The
EIA, as amended, requires that self-employed persons who wish to participate
in coverage for maternity, parental, sickness and compassionate leave benefits
enter into an agreement with the Employment Insurance Commission (the
Commission). By these agreements, self-employed persons commit to pay
Employment Insurance (EI) premiums for the calendar year in which they elect
coverage. Prior to qualifying for these “Special Benefits” self-employed
persons who enter into an agreement must wait a minimum of twelve months from
the date they enter into the agreement.
[4]
As
a transitional measure, self-employed persons who entered into agreements
before April 1, 2010 were considered to have entered into their agreements as
of January 1, 2010. Individuals who entered into an agreement after April 1,
2010 must wait twelve months prior to making a claim for benefits. There is no
doubt that the agreement in question was entered into on April 11, 2010.
[5]
The
applicant, Ms. Wegener, intended to participate in this scheme. She started
her own business and obtained all necessary documentation and business
registration numbers. Ms. Wegener discussed her intention to enter into such
an agreement over the phone with Service Canada personnel on two occasions
between March 18, 2010 and March 19, 2010. Ms. Wegener contends that she was
informed by Service Canada personnel that she would have to wait an undefined
amount of time before she could gain access to her account on-line while it was
being up-dated with information pertaining to her recently established business.
She further contends that they did not disclose to her the April 1, 2010
deadline in order to be eligible for January 2011 benefits. In consequence, Ms.
Wegener did not enter into an agreement with the Commission until April 11,
2010.
[6]
The
Commission, for its part, submitted affidavit evidence indicating that Ms.
Wegener had electronic access to her account without interruption from January
31, 2010, and that she had the option of submitting her agreement in traditional
hard copy paper format.
[7]
Ms.
Wegener comes to this Court seeking an order: (i) directing the Commission to
back-date her Agreement to April 1, 2010; or (ii) an order declaring that the
Board of Referees has jurisdiction to rule on her eligibility to claim for
special EI benefits.
[8]
While
the Court has sympathy for Ms. Wegener, who clearly demonstrated an intention
to apply under the scheme, the Court has no jurisdiction to alter or give
equitable relief from the clear language of Parliament. Section 152.07(1)(a)
of the EIA establishes the twelve month waiting period:
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Qualification requirements
152.07 (1) A self-employed person
qualifies for benefits if
(a) at least 12 months have
expired since the day on which the person entered into an agreement referred
to in subsection 152.02(1) with the Commission, or if a period has been
prescribed for the purpose of this section, a period that is at least as long
as that prescribed period has expired since that day;
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Conditions requises
152.07 (1) Le travailleur indépendant
remplit les conditions requises pour recevoir des prestations si, à la fois:
a) il s’est écoulé une période
de douze mois ou, le cas échéant, la période prévue par règlement, depuis la
conclusion de l’accord prévu à l’alinéa 152.02(1)b) par
lui et la Commission;
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[9]
The
relief provided by the transitional provision is set forth in the Fairness
for the Self-Employed Act, S.C. 57-58 Elizabeth II, c.33, s.19:
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19. Despite paragraph 152.07(1)(a) of
the Employment Insurance Act, a benefit period under Part VII.1 of
that Act may begin on or after January 1, 2011 if the self-employed person to
whom the benefit period relates has, during the period that begins on the
later of the day on which this Act receives its royal assent and January 1,
2010 and ends on April 1, 2010, entered into an agreement referred to in
subsection 152.02(1) of that Act.
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19. Malgré l’alinéa 152.07(1)a)
de la Loi sur l’assurance-emploi, une période de prestations prévue
par la partie VII.1 de cette loi peut débuter dès le 1er janvier
2011 pour un travailleur indépendant s’il a conclu un accord visé à l’alinéa
152.02(1)b) de cette loi au cours de la période commençant le 1er
janvier 2010 — ou, si elle est postérieure, à la date de sanction de la
présente loi — et se terminant le 1er avril 2010.
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[10]
As
well, the Frequently Asked Questions on the Service Canada website indicates
that the agreement needed to be entered into by April 1, 2010:
9. When can I enter into an agreement
with the Commission to participate in the EI Measure for Self-Employed People?
If you are a self-employed Canadian, you
will be able to enter into an agreement with the Commission through Service
Canada starting on January 31, 2010.
If you enter into an agreement between
January 31, 2010 and April 1, 2010, you will be able to make a claim for EI
special benefits as early as January 2011. This is a special start-up
measure. However, if you enter into an agreement with the Commission after
April 1, 2010, you will have to wait 12 months from the date of your agreement
before you will be able to make a claim for EI special benefits.
[11]
There
is no jurisdiction for the Court to amend, through a s.18.1 remedy, equitable
relief, or otherwise, what Parliament has required; see for example Canada (Attorney
General) v Buors [2002] FCA 372. That case, like that of Ms. Wegener’s,
involved a claim to recover an over-payment based on inaccurate information
provided by the Commission. Noel J.A., speaking for the Federal Court of
Appeal noted that there was no jurisdiction to waive a statutory requirement. To
the same effect, Evans J.A., in Canada (Attorney General) v
Alaie,
2003 FCA 416, noted that the Court cannot decide cases on the basis that a
party might have been misled about benefits. The Court cannot refuse to apply
the law, even on the grounds of equity.
[12]
The
Board of Referees does not have jurisdiction to back-date the agreement, or to
order that it be back-dated. The decision not to back-date the claim for
benefits is not a decision of the Commission on a claim for benefits,
nor is it one which the Commission, as a matter of law, would be entitled to
make. The entering into an agreement is a statutory precondition, along with
other requirements, to being able to make a claim for benefits.
[13]
The
jurisprudence is clear that the jurisdiction of the Board of Referees is
confined to appeals from decisions of the Commission regarding claims for
benefits; Canada (Attorney
General) v Gauley 2002 FCA 219; Canada (Attorney
General) v Mosher 2002 FCA 355. For the reasons given above, even
if, on a very broad interpretation of the words “claim for benefits” the Board
of Referees could be said to have jurisdiction to hear the request that the agreement
be back-dated, it would not have jurisdiction to grant the remedy sought.
[14]
Accordingly,
the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application
for judicial
review be and is hereby dismissed.
"Donald J. Rennie"
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