Date:
20070308
Docket: A-362-06
Citation: 2007
FCA 104
CORAM: DÉCARY
J.A.
NOËL
J.A.
SEXTON
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
ALEXANDER
HAMILTON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on March
8, 2007)
SEXTON J.A.
[1]
The
Respondent was dismissed from his employment as an accountant. He was paid
$3500 in lieu of notice.
[2]
Subsequently
he entered into a Settlement Agreement with the employer in which it was stated
that the employer agreed to pay him $27,500 “in full and complete settlement of
any and all obligations or claims of any kind or nature whatsoever which may be
due or owed” by the employer “including claims for wrongful dismissal.”
[3]
The
Agreement states in part in the preamble:
C. KRL has terminated the employment of Hamilton and Logan
has terminated the services of Hamilton; and
D. Hamilton believing he was wrongfully
dismissed, and that he has grounds for a claim of wrongful dismissal, the
Companies wish to enter into this Settlement Agreement in order to satisfy the
wrongful dismissal claim and settle all or any outstanding matters between then
and Hamilton.
13. . . .
The
agreement states in its body:
4. KRL and Logan agree to pay, and Hamilton agrees to
accept in full and complete settlement of any and all obligations or claims of
any kind or nature whatsoever which may be due or owed by KRL and/or Logan to Hamilton, including
claims for damages for wrongful dismissal, the sum of . . .$27,500.
5. Hamilton hereby acknowledges that
he will not file a complaint, information or claim of any kind with the
Employment Standards Branch, the TSX Venture Exchange, any provincial
securities commission in Canada, or any other regulatory authority having
jurisdiction over the Companies or Individuals in connection with this matter,
or in connection with the affairs of KRL and Logan in general, or the conduct
of the directors and/or of KRL and Logan.
[4]
The
Commission, pursuant to the Employment Insurance Regulations took the position
that all of the amounts paid by the employer should be considered as earnings.
[5]
The
Board of Referees held that the settlement funds of $27,500 were not earnings as
they were payment for “not filing a complaint.”
[6]
The
Umpire reduced the $27,500 to $25,000 as being the sum which should not be
considered as earnings.
[7]
The
basis given by the Umpire for this decision was that the employer was motivated
to dismiss the Respondent because he had uncovered some wrongdoing within the
Company and that the greater part of the settlement amount must be considered
as having been paid for consideration other than loss of income.
[8]
The
Applicant argues that the Umpire erred in not finding that the entire amount of
settlement funds constituted earnings under Section 35 of the Employment
Insurance Regulations.
[9]
Specifically,
the Applicant argues there is a legal presumption that any monies received by the
employee were earnings. However, such presumptions can be rebutted by other
evidence. There was other evidence in this case in the terms of the Settlement
Agreement. It specifically refers to the Respondent’ promise not to file a
complaint with a number of regulatory bodies. Obviously the employer was
sufficiently concerned about this to put it in the Settlement Agreement.
[10]
One
can only conclude, therefore, that some part of the settlement funds
represented a payment in order to obtain the Respondent’s promise not to report
the employer to the authorities.
[11]
While
the Umpire heard further evidence on this point at the hearing, it was not
necessary to his decision. One can glean from the Settlement agreement itself
that the employer was willing to pay for the Respondent’s promise not to
report. Hence the Applicant’s argument that the Umpire wrongfully accepted new
evidence does not really advance the Applicant’s position.
[12]
The
Applicant argues that the allocation by the Umpire was wrong because it was arbitrary
and lacked evidence to support it. However the Umpire reasoned that the
employer was motivated to pay the respondent because he had uncovered some
wrongdoing within the company which the company did not want to be disclosed.
Thus the Umpire was able to conclude that the greater part of the settlement
was for consideration other than wrongful dismissal.
[13]
It
also must be remembered that Respondent had only been employed with the company
for approximately 34 months so that one would not expect the amount for lost
earnings to be large.
[14]
We
are unable to say that the Umpire committed any reviewable error.
[15]
The
Application will be dismissed. The Respondent will be entitled to his
disbursements in connection with this Application fixed at $200.
"J.
Edgar Sexton"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-362-06
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v.
ALEXANDER HAMILTON
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: March
8, 2007
REASONS FOR
JUDGMENT BY: DÉCARY
J.A.
NOËL J.A.
SEXTON
J.A.
DELIVERED
FROM THE BENCH: SEXTON
J.A.
DATED: March 8, 2007
APPEARANCES:
Ward Bansley FOR
THE APPLICANT
Alexander
Hamilton ON
HIS OWN BEHALF
SOLICITORS
OF RECORD:
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
|
|
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