A-841-96
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and-
MICHAEL FOX
Respondent
HEARD at Toronto, Ontario, Thursday, October 9, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Thursday, October 9, 1997.
REASONS FOR JUDGMENT BY: ROBERTSON, J.A.
A-841-96
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and-
MICHAEL FOX
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench, at Toronto, Ontario,
on Thursday, the 9th day of October, 1997)
ROBERTSON, J.A.:
The respondent claimant applied for unemployment insurance benefits after being laid off from work in October of 1990. As he was in receipt of severance monies the claimant was found to be ineligible for benefits. As is well known the receipt of such monies has the effect of deferring the date on which it can be said that a claimant has suffered an interruption of earnings. To determine the date of eligibility it is necessary to divide the amount of the severance pay by the claimant's normal weekly wage. In this case, the Commission determined that the claimant's normal weekly wage was $1000 per week. Utilizing that figure the claimant was held to be ineligible for benefits because he did not have enough weeks of insurable employment to establish a claim, even with the maximum 52 week extension to his qualifying period. In response the claimant argued that his normal weekly wage was not $1,000 per week but rather $1245.16, calculated by reference to his yearly employment income indicated on his T4 slip. If severance pay were allocated using that sum, the allocation period would end earlier and he would have a sufficient number of weeks to qualify for benefits. The Commission maintained that the allocation of $1,000 per week was correct as the T4 slip included amounts which were not generally included in weekly earnings such as a car allowance, life insurance benefits, vacation pay, a 25-year service award and an annual incentive allowance. The claimant appealed to the Board of Referees, which upheld the Commission's decision. He then appealed that decision to an Umpire.
The Umpire noted that, since the Commission had conceded that the car allowance was part of the claimant's normal weekly earnings and the claimant had conceded that life insurance benefits were not, the only amounts in dispute before him were the vacation pay, the annual incentive allowance and the 25-year service award. The Umpire found that subsection 58(9) of the Unemployment Insurance Regulations states that a claimant's separation monies were to be allocated according to his "normal weekly earnings" from his employment and that this term was not defined in either the Unemployment Insurance Act or the Regulations. He then concluded that the amounts in question should have been included as part of the Respondent's normal weekly earnings.
We are all of the respectful view that the Umpire erred in including amounts for vacation pay, an annual incentive allowance and a 25-year service award as part of the claimant's normal weekly earnings. We do not accept the argument that normal weekly earnings include amounts which accrue weekly and which are not paid on a periodic basis. The term normal weekly earnings means the ordinary, usual earnings that a claimant receives or earns on a regular basis and does not include the amounts in question here, which are more properly characterized as fringe benefits or extra amounts. At best the renumeration outlined in the claimant's T4 slip constitutes evidence of his "normal yearly earnings." Our conclusion is in keeping with the jurisprudence in CUB 4802 and CUB 4499. For example, in the latter decision Mahoney, J. (as he then was) found that the "average value of the fringe benefits package enjoyed by Ontario civil servants" should not be factored into a calculation of the claimant's earnings for the purpose of determining his "normal weekly earnings".
For these reasons the application must be allowed, the decision of the Umpire set aside and the matter referred to the Chief Umpire or his designate on the basis that the appeal from the decision of the Board of Referees be dismissed, subject to the concession on the part of the Commission that the car allowance was part of the claimant's normal weekly earnings.
"J.T. Robertson"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-841-96
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
- and -
DATE OF HEARING: OCTOBER 9, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: ROBERTSON, J.A.
Delivered from the Bench at Toronto, Ontario
on Thursday, October 9, 1997
APPEARANCES:
Mr. Robert H. Jaworski
For the Applicant
Mr. Karl Arvai
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Applicant
Karl Arvai
1508-140 Fullarton Street
London, Ontario
N6A 5P2
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-841-96
Between:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
- and -
Respondent
REASONS FOR JUDGMENT
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