Date: 20010322
Docket: A-774-99
Coram: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
ATTORNEY GENERAL OF CANADA
Plaintiff
AND
MARYSE DUPÉRÉ
Defendant
Hearing held at Montréal, Quebec on Tuesday, March 20, 2001
Judgment rendered at Montréal, Quebec on Thursday, March 22, 2001
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 20010322
Docket: A-774-99
Neutral reference: FCA 83
Coram: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
ATTORNEY GENERAL OF CANADA
Plaintiff
AND
MARYSE DUPÉRÉ
Defendant
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] I consider that this application for judicial review should be allowed.
[2] The defendant held two-part time jobs concurrently with two separate employers: one with the Portneuf CHRS (regional housing and health centre) and the other with the CHUQ (Pavillon Hôtel-Dieu de Québec). From March 7 to September 16, 1997, due to her pregnancy, she exercised her right to precautionary cessation of work at her Portneuf employment and received benefits from the Commission de la santé et de la sécurité au travail (CSST) in accordance with the Act. On September 17, 1997 she took maternity leave from that employer and the CSST benefits ceased being paid to her on the 16th of that month.
[3] During this same period, however, from March 7 to September 3, 1997, the defendant continued to work at her other part-time employment with the Québec CHUQ. She was assigned by her employer to duties consistent with her pregnancy and there was no evidence in the record that her pay was reduced. She did not receive benefits from the CSST for this employment and on September 14, 1997 she took maternity leave.
[4] On September 22, 1997 the defendant filed an application for benefits under the Employment Insurance Act, S.C. 1996, c. 23 ("the Act") and maternity benefits were paid to her. The amount of the benefits was determined by the Employment and Immigration Commission ("the Commission") based on 26 consecutive weeks which, in her qualifying period, constituted her rate calculation period. The Commission took the date of September 3, 1997 as the end of the rate calculation period as in its opinion that was the week in which the last interruption of earnings occurred. In doing this, it relied on s. 14 of the Act and in particular s. 14(4), which provides:
| Rate of weekly benefits
14(1) Rate of weekly benefits
14. (1) The rate of weekly benefits payable to a claimant is 55% of their weekly insurable earnings.
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Taux de prestations
14(1) Taux de prestations hebdomadaires
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| 14. (1) Le taux de prestations hebdomadaires qui peut être versé à un prestataire est de cinquante-cinq pour cent de sa rémunération hebdomadaire assurable.14(1.1) Maximum weekly insurable earnings
(1.1) The maximum weekly insurable earnings is
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14(1.1) Maximum de la rémunération hebdomadaire assurable
(1.1) Le maximum de la rémunération hebdomadaire assurable d'un prestataire est_:
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| (a) _$750 if the claimant's benefit period begins during the years 1997 to 2000; and
(b) if the claimant's benefit period begins in a subsequent year, the maximum yearly insurable earnings divided by 52.
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a) si sa période de prestations débute au cours des années 1997 à 2000, de 750_$;
b) si sa période de prestations débute au cours des années subséquentes, le montant obtenu par division du maximum de la rémunération annuelle assurable par 52.
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| 14(2) Weekly insurable earnings
(2) A claimant's weekly insurable earnings are their insurable earnings in the rate calculation period divided by the larger of the following divisors:
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14(2) Rémunération hebdomadaire assurable
(2) La rémunération hebdomadaire assurable correspond au quotient obtenu par division de la rémunération assurable du prestataire au cours de sa période de base par le plus élevé des nombres suivants_:
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| (a) the divisor that equals the number of weeks during the rate calculation period in which the claimant had insurable earnings, and
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a) le nombre de semaines, pendant la période de base, au cours desquelles le prestataire a reçu une rémunération assurable;
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| (b) the divisor determined in accordance with the following table by reference to the applicable regional rate of unemployment.
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b) le nombre prévu au tableau qui suit, en fonction du taux régional de chômage applicable.
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| 14(3) Insurable earnings
(3) Insurable earnings in the rate calculation period shall be established and calculated in accordance with the regulations and include earnings from any insurable employment, regardless of whether the employment has ended.
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14(3) Rémunération assurable
(3) La rémunération assurable au cours de la période de base est déterminée et calculée conformément aux règlements et comprend celle relative à l'exercice de tout emploi assurable, que celui-ci ait ou non pris fin.
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| 14(4) Rate calculation period
(4) The rate calculation period is the period of not more than 26 consecutive weeks in the claimant's qualifying period ending with the later of
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14(4) Période de base
(4) La période de base d'un prestataire correspond à la période d'au plus vingt-six semaines consécutives, au cours de sa période de référence -- compte non tenu des semaines reliées à un emploi sur le marché du travail, au sens prévu par règlement --, se terminant_:
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| (a) the week
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a) soit par la semaine, selon le cas_:
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| (i) before the claimant's benefit period begins, if it begins on the Sunday of the week in which the claimant's last interruption of earnings occurs, or
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| (i) précédant celle au cours de laquelle survient son dernier arrêt de rémunération, lorsque la période de prestations débute le dimanche de cette dernière semaine, (ii) in which the claimant's last interruption of earnings occurs, if their benefit period begins on the Sunday of a week that is after the week in which the claimant's last interruption of earnings occurs, and
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(ii) au cours de laquelle survient son dernier arrêt de rémunération, lorsque la période de prestations débute le dimanche d'une semaine postérieure à cet arrêt de rémunération;
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| (b) the week before the claimant's benefit period begins, if the claimant has an insurable employment at the beginning of that period.
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b) soit, si elle est postérieure, par la semaine précédant le début de sa période de prestations, s'il exerce toujours un emploi assurable à ce moment.
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| A prescribed week relating to employment in the labour force shall not be taken into account when determining what weeks are within the rate calculation period.
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| 14(4.1) Length of rate calculation period
(4.1) The rate calculation period is 26 weeks, unless the claimant's qualifying period begins on a Sunday that is less than 26 weeks before the Sunday of the week in which the rate calculation period ends under subsection (4), in which case it is the number of weeks between those Sundays.
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14(4.1) Durée de la période de base
(4.1) La période de base du prestataire est de vingt-six semaines, à moins que sa période de référence ne commence moins de vingt-six semaines avant la semaine visée à l'alinéa (4)a) ou b), auquel cas elle correspond au nombre de semaines compris dans l'intervalle.
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[5] The defendant was not satisfied with the benefit rate set by the Commission and appealed to a board of referees, where she argued successfully that in determining her benefit rate the Commission should have taken into account only the first interruption of earnings in March and ignored that in September. The board of referees allowed the defendant's appeal, basing its decision on s. 14(7) of the Employment Insurance Regulations, SOR/96-332 ("the Regulations") :
| 14(7)
(7) Where an insured person accepts less remunerative work with their (sic) employer and as a consequence receives a wage supplement under a provincial law intended to provide indemnity payments where the continuation of a person's work represents a physical danger to them (sic), to their unborn child or to the child they are breast-feeding, an interruption of earnings occurs on the insured person's last day of work before the beginning of the less remunerative work.
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14(7)
(7) Lorsque l'assuré accepte un travail moins rémunérateur de son employeur et, de ce fait, reçoit un supplément de rémunération en vertu d'une loi provinciale prévoyant le versement d'indemnités dans le cas où la continuation du travail mettrait en danger la personne qui l'accomplit ou mettrait en danger l'enfant à naître de la personne qui l'accomplit ou l'enfant qu'elle allaite, l'arrêt de rémunération de l'assuré survient lors de la dernière journée de travail avant le début du travail moins rémunérateur.
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[6] By decision of October 12, 1999 an umpire upheld the board of referees' decision and dismissed the Commission's appeal seeking to overturn that decision.
[7] With respect, I feel that the umpire and the board of referees misinterpreted and misapplied s. 14(7) of the Regulations. That subsection lays down three essential conditions for its application.
[8] First, the insured exercising his or her right to precautionary cessation of work must have accepted less remunerative work from the employer. In other words, the insured must continue working on less advantageous salary conditions. The insured must also, and this is the second condition, receive a wage supplement under a provincial law. Finally, the wage supplement must be paid as a consequence of the fact that the insured has accepted less remunerative work.
[9] If these conditions are applied to the defendant's particular situation, we come to the following conclusion. As regards the Portneuf CHRS employment, the defendant did not continue to do the less remunerative work there which was offered by the employer. Despite the failure to observe this essential condition of s. 14(7), counsel for the plaintiff informed the Court at the hearing that the Commission nevertheless agreed in such cases to apply the subsection of the Regulations in favour of the pregnant individual. If only this employment had been in question, the problem of implementing s. 14(7) would not have arisen. However, there is the question of the second employment held by the defendant with the Québec CHUQ.
[10] As regards this second employment, the evidence was that the defendant kept it, did not use the right of precautionary cessation of work and received no wage supplement from the CSST. Further, as already mentioned the evidence did not indicate that the defendant, through a reorganization of her duties, held less remunerative work with that employer for the period from March to September 1997. It seems clear that none of the conditions in s. 14(7) of the Regulations were met by the defendant's employment with the CHUQ, and accordingly both the umpire and the board of referees erred when they applied the wording of that subsection to the facts of the case at bar.
[11] In the circumstances, the Commission was right to argue that it was s. 14 of the Act which applied and determined the benefit rate. Subsection 4 of that section takes as the rate calculation period a period of not more than 26 consecutive weeks which, as is clearly indicated in s. 14(4)(a)(ii), ends in the week in which the claimant's last interruption of earnings occurs. In the case at bar, the defendant's rate calculation period ended on September 3, 1997 when she left her employment with the Québec CHUQ and ceased to be paid by them. Moreover, this conclusion is consistent with that reached by this Court in Canada v. Cymerman, [1996] 2 F.C. 593, in interpreting similar provisions of the old Unemployment Insurance Act, R.S.C. 1985, c. U-1.
[12] It should be added that the Commission was prepared to apply s. 14(7) of the Regulations to the defendant and, in determining the start of the benefit period, to acknowledge that the defendant's interruption of earnings occurred in March 1997. It was also prepared to consider a backdated application by the defendant to make the payment of benefits start in March rather than in September 1997. This approach by the Commission would have been favourable to the defendant, at least with regard to the amount of benefits, as the 26 consecutive weeks making up the rate calculation period would then have been those preceding the interruption of earnings in March consistent with s. 14 of the Act. She would then have received a higher benefit rate. Of course, on the other hand, the length of the benefit period would have been affected. The defendant declined this suggestion, preferring to receive benefits from September 14, 1997. She must then live with the legal consequences of that choice.
[13] For these reasons, the application for judicial review will be allowed, the decision of the umpire quashed and the matter referred back to the chief umpire or his representative to be again decided on the basis that the Commission's appeal should be allowed and the benefit rate set in terms of the last interruption of earnings occurring in the week of September 3, 1997.
[14] A copy of these reasons will be filed in Attorney General of Canada -and- France Bélanger, A-60-00, to serve as reasons, mutatis mutandis, for the judgment allowing the application for judicial review in that case.
I concur.
Robert Décary J.A.
I concur.
Marc Noel J.A.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20010322
Docket: A-774-99
Between:
ATTORNEY GENERAL OF CANADA
Plaintiff
AND
MARYSE DUPÉRÉ
Defendant
REASONS FOR JUDGMENT
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FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: A-774-99
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Plaintiff
AND
MARYSE DUPÉRÉ
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 20, 2001
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
DATED: March 22, 2001
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
APPEARANCES:
Carole Bureau FOR THE PLAINTIFF
Jean-Guy Ouellet FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Ouellet, Nadon & Associés FOR THE DEFENDANT
Montréal, Quebec
Date: 20010322
Docket: A-774-99
Montréal, Quebec, Thursday, March 22, 2001
Coram: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
ATTORNEY GENERAL OF CANADA
Plaintiff
AND
MARYSE DUPÉRÉ
Defendant
JUDGMENT
The application for judicial review is allowed, the decision of the umpire is quashed and the matter is referred back to the chief umpire or his representative to be again decided on the assumption that the Commission's appeal should be allowed and the benefit rate set in terms of the last interruption of earnings occurring in the week of September 3, 1997.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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