Dockets: A-427-14
A-428-14
A-426-14
A-430-14
A-431-14
A-438-14
Citation: 2015 FCA 242
|
CORAM:
|
NADON J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
|
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1]
These applications for judicial review involve six
decisions by the Social Security Tribunal, Appeal Division (Appeal Division)
rendered on August 28, 2014, dismissing the appeals filed by the Employment
Insurance Commission against the decisions of a board of referees. These decisions
raise the same issue, namely whether long-distance truck drivers whose contract
stipulates that they will work one week out of every two, for 55 to 60 hours a
week, are unemployed and entitled to receive employment insurance benefits
during their week of rest. A board of referees ruled in favour of the Respondents,
and the Appeal Division upheld these decisions.
[2]
For the following reasons, I believe that the
applications for judicial review must be allowed.
I.
The facts
[3]
Messrs. Paradis and Jean are both long-distance truck
drivers for Entreposage Le Clos, a small company located in Grand-Mère,
Quebec, acting in turn as subcontractor for XTL Transport. The employer has
two trucks and employs four drivers, who were told at the time of hiring that
they would work one week out every two, on an alternating basis. By this
arrangement, the employer ensures that its trucks are always moving, thereby maximizing
the profit they generate. The evidence reveals that the pay received by the employees
depends on the kilometres driven. Over the years relevant to this case, Messrs.
Paradis and Jean worked an average of 55 to 60 hours a week, on an alternating
basis with a week of rest. The Respondents receive no pay for the periods when
the employer does not assign them work.
[4]
Starting in 2009 and 2010 respectively, Messrs.
Paradis and Jean filed employment insurance applications for the weeks during
which they did not work. As the reason for termination of employment, they
indicated that the employer had a lack of work and that they did not expect to return
to work with their employer until the following week. On May 10 and 18, 2011, the
Canada Employment Insurance Commission (the Commission) rendered a series of decisions
rejecting the Respondents' applications for benefits, on grounds that the
periods off work in this case [TRANSLATION] "form
part of [their] work schedule" (Applicant's Record, A-427-14,
pp. 95-98; Applicant's Record, A-426-14, pp. 80-81).
[5]
The Respondents appealed these decisions to a board
of referees, which heard the appeals jointly on October 2, 2012. The Commission
produced a report indicating that the average work week of a truck driver was
48 hours a week (Exhibit "K" - Service
Canada, "411 – Truck Drivers", Applicant's
Record, A-427-14, p. 182). It submitted that by working 55 to 60 hours during
their work week, the Respondents were usually working more hours than a
full-time employee and were entitled to one week of leave under their contract
of employment. They therefore were ineligible for employment insurance benefits
under the terms of subsection 11(4) of the Employment Insurance Act, S.C.
1996, c 23 [the Act]. This provision stipulates that a person receiving
a period of leave to compensate for working a greater number of hours than are
normally worked in a week by persons employed in full-time employment shall not
be entitled to payment of benefits for that period of leave.
[6]
In turn, the Respondents produced a report
indicating that 52 percent of truck drivers not self-employed normally work 50 hours
or more a week, and almost one third (31 percent) had worked 60 hours or more a
week in 1998 (Exhibit "A-1", Statistics
Canada, "Work patterns of truck drivers",
Applicant's Record, A-427-14, p. 149). They submitted that their hours of work
during the week they were on the road therefore represented a normal work week
and that they were not on leave during the weeks when they were without work.
[7]
On November 16, 2012, the board of referees allowed
the Respondents' appeals. Reviewing the evidence on record, the board of
referees found that they were prepared to work every week and were not
responsible for the fact the employer made the equipment available to them only
every other week. The board stated that it was [TRANSLATION] "not abnormal for a long-distance truck driver's work week
to be 55 to 60 hours a week", and favoured the Respondents'
evidence in this regard, which was more specific to the case of long-distance truck
drivers, over that of the Commission. The board therefore found that the Respondents
did not work more hours than what was normal in their work sector and thus were
not on leave during the weeks without work, so they were not covered by the exception
set out in subsection 11(4) of the Act.
[8]
The Commission appealed these decisions to the Appeal
Division, primarily on grounds that the board of referees erred in comparing
the Respondents' work hours only to the hours usually worked by people employed
full-time in the same field, rather than considering the hours normally worked
by a full-time employee regardless of the specific industry. The Appeal
Division heard these appeals jointly on May 26, 2014.
II.
The decision challenged
[9]
On August 28, 2014, the Appeal Division dismissed
the Commission's appeals. First, the Appeal Division determined that it had to
apply the standard of correctness to the issues of law, and the standard of
reasonableness to mixed issues of fact and law. It then pointed out that
subsection 11(4) of the Act is applicable only under the assumption that
the evidence shows that an employee worked more hours than those usually worked
by persons employed in full-time employment and that this was an issue of fact.
The Appeal Division was careful to point out that the Commission itself had compared
the Respondents' hours of work with the hours worked by truck drivers, based on
Exhibit "K", thus it could not
criticize the board of referees for favouring the Respondents' more specific
evidence on this point.
[10]
The Appeal Division also found that even if the board
of referees had erred by comparing the Respondents' hours of work with employees
in the same field, no evidence was led by the Commission to support its
statement that a normal work week is 40 hours. Given the limitations on its
power to intervene as stipulated by subsection 115(2) of the Act
(violation of a principle of natural justice, error of law, erroneous conclusion
of fact, conclusion drawn abusively or arbitrarily or without considering facts
brought to its knowledge), the Appeal Division dismissed the appeals.
III.
Issues
[11]
This application for judicial review raises two
issues.
a)
What is the applicable standard of judicial
review?
b)
Did the Appeal Division err in concluding that
subsection 11(4) of the Act does not apply to the Respondents, given the
evidence produced?
IV.
Legislative framework
[12]
The provisions of the Act that are relevant
to the instant dispute read as follows.
|
Establishment of
benefit period
9. When an
insured person who qualifies under section 7 or 7.1 makes an initial claim
for benefits, a benefit period shall be established and, once it is
established, benefits are payable to the person in accordance with this Part
for each week of unemployment that falls in the benefit period.
|
Période de
prestations
9. Lorsqu’un
assuré qui remplit les conditions requises aux termes de l’article 7 ou 7.1
formule une demande initiale de prestations, on doit établir à son profit une
période de prestations et des prestations lui sont dès lors payables, en
conformité avec la présente partie, pour chaque semaine de chômage comprise
dans la période de prestations.
|
|
Week of
unemployment
11. (1) A week of
unemployment for a claimant is a week in which the claimant does not work a
full working week.
[…]
|
Semaine de
chômage
11. (1) Une
semaine de chômage, pour un prestataire, est une semaine pendant laquelle il
n’effectue pas une semaine entière de travail.
[…]
|
|
Exception —
compensatory leave
(4) An insured
person is deemed to have worked a full working week during each week that
falls wholly or partly in a period of leave if
(a) in each week
the insured person regularly works a greater number of hours, days or shifts
than are normally worked in a week by persons employed in full-time
employment; and
(b) the person is
entitled to the period of leave under an employment agreement to compensate
for the extra time worked.
|
Exception :
congé
(4) L’assuré qui
travaille habituellement plus d’heures, de jours ou de périodes de travail
que ne travaillent habituellement au cours d’une semaine des personnes
employées à plein temps et qui a droit, aux termes de son contrat de travail,
à une période de congé est censé avoir travaillé une semaine entière de
travail au cours de chaque semaine qui est comprise complètement ou
partiellement dans cette dernière période.
|
V.
Analysis
a)
Standard of review
[13]
The matter the Court must resolve in this case
essentially concerns the scope that must be given to the exclusion set out in
subsection 11(4) of the Act. Specifically, the matter in dispute is
determining whether the number of hours usually worked during a week by persons
employed in full-time employment must be assessed, for purposes of this
provision, based on a job type or in a particular company, or instead must be
assessed in reference to all workers. This is a matter of legislative interpretation
and therefore a matter of law. In fact, the decision to be rendered in this
case may have repercussions on other workers whose hours or periods of work are
atypical and diverge from the normal practice. Incidentally, the Court must
also determine whether the Respondents actually worked more than the number of
hours usually worked over a week by persons employed in full-time employment; this
is a question of mixed law and fact, since the answer (once the interpretation
to be given to subsection 11(4) is established) depends on the application of a
legal standard to the facts in the case.
[14]
The parties have agreed that the standard of
review applicable to the Appeal Division's decision is that of reasonableness, and
I concur. It has been well established since the Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] decision that deference is usually appropriate
when an administrative tribunal interprets its own statute or statutes closely connected
to its function, as in this case: Dunsmuir, at paragraph 54; Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, at paragraphs 30 and 34; Agraira v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36, at paragraph 50 [Agraira]. The
same holds true when the issue to be resolved is a question of mixed fact and
law: Dunsmuir, at paragraph 53.
[15]
The Dunsmuir decision also teaches that
there is no need to conduct a contextual analysis to determine the applicable standard
when the case law has already satisfactorily established the applicable standard
of judicial review: Dunsmuir, at paragraph 57; Agraira, at paragraph
48. Two recent decisions by this Court have already conducted this analysis and
thus dispense us from repeating the exercise.
[16]
First, my colleague Justice Trudel reached the conclusion
that the presumption that deference must be shown when an administrative tribunal
interprets its enabling legislation applies in the context of judicial review
of a decision by the Appeal Division, provided this presumption is not precluded
by any of the exceptions cited by the case law (constitutional questions, questions
of law that are of crucial importance to the legal system as a whole and that
are outside the decision-maker's field of expertise, jurisdictional questions and
questions regarding the jurisdictional lines between two or more competing
specialized tribunals): see Atkinson v Canada (Attorney General), 2014 FCA
187, at paragraphs 22-33. Admittedly, in that case, the decision of the Appeal
Division reviewed by our Court related to interpretation of another act, i.e.
the Canada Pension Plan, R.S.C. 1985, c C-8. The fact remains that Justice
Trudel's analysis was not based on the substantive provisions of the Canada
Pension Plan Act but rather on the enabling legislation of the Appeal
Division, i.e. the Department of Employment and Social Development Act, S.C.
2005, c 34. Her analysis therefore is fully transposable to the jurisdiction
exercised by the Appeal Division under the Act.
[17]
More recently, this Court ruled on the standard
of review applicable to an Appeal Division decision quashing a decision by a board
of referees: see Thibodeau v Canada (Attorney General), 2015 FCA 167. In
that case, Chief Justice Noël also conducted a contextual analysis and found,
as well, that deference was appropriate when the Appeal Division interprets its
own statute or statutes closely connected to its function. This Court therefore
is only entitled to intervene where it deems that the Appeal Division decision
does not fall within "possible, acceptable
outcomes which are defensible in respect of the facts and law": Dunsmuir,
at paragraph 47.
[18]
There is no apparent need to carry the analysis
further and determine the rigour with which the Appeal Division must review decisions
of the board of referees on matters of law. This Court has frequently
established that the umpire must apply the standard of reasonableness to mixed questions
and to matters of fact determined by the board of referees (Pathmanathan v Office
of the Umpire, 2015 FCA 50, at paragraph 15; De Jesus v Canada (Attorney
General), 2013 FCA 264, at paragraph 30; Canada (Attorney General) v
Merrigan, 2004 FCA 253, at paragraph 10 [Merrigan]) and the standard
of correctness to matters of law (Martens v Canada (Attorney General),
2008 FCA 240, at paragraphs 30-31; Chaulk v Canada (Attorney General),
2012 FCA 190, at paragraphs 26-29; Stone v Canada (Attorney General),
2006 FCA 27, at paragraphs 15-18). Where the Appeal Division heard appeals of decisions
by the board of referees, assuming the role previously assigned to the umpire pursuant
to the transitional measures set out by the Jobs, Growth and Long-term
Prosperity Act, S.C. 2012, c 19, ss. 266-267, it was appropriate that it
refer to the appeal methods in effect immediately prior to April 1, 2013 and to
the case law on the standard of review applicable under this system. For the purposes
of the instant dispute, there is no need to rule on the standard of review that
the Appeal Division should apply when reviewing appeals of decisions rendered
by the General Division of the Social Security Tribunal.
[19]
This being said, I am not convinced of the
relevance of subjecting decisions rendered by the Appeal Division to an
analysis based on the standard of review. When it acts as an administrative appeal
tribunal for decisions rendered by the General Division of the Social Security Tribunal,
the Appeal Division does not exercise a superintending power similar to that
exercised by a higher court. Given the risk of a blurring of lines, it seems to
me that we must refrain from borrowing from the terminology and the spirit of judicial
review in an administrative appeal context. Not only does the Appeal Division have
as much expertise as the General Division of the Social Security Tribunal and
thus is not required to show deference, but an administrative appeal tribunal also
cannot exercise the review and superintending powers reserved for higher
provincial courts or, in the case of "federal
boards", for the Federal Court and the Federal Court of Appeal (ss.
18.1 and 28 of the Federal Courts Act, R.S.C. 1985, c F-7). Where it
hears appeals pursuant to subsection 58(1) of the Department of Employment
and Social Development Act, the mandate of the Appeal Division is conferred
to it by sections 55 to 69 of that Act. In particular, it must determine
whether the General Division "erred in law in
making its decision, whether or not the error appears on the face of the record"
(paragraph 58(1)(b) of the Act). There is no need to add to this
wording the case law that has developed on judicial review.
[20]
The role of this Court in the instant case
therefore consists of determining whether the Appeal Division could reasonably
find that the board of referees did not render a decision voided by an error of
law. For all practical purposes, this comes down to asking whether the board of
referees could reasonably interpret subsection 11(4) of the Act as it
did, by comparing the Respondents' work week with that of long-distance truck
drivers rather than that of all full-time workers.
b)
Scope of subsection 11(4) of the Employment
Insurance Act
[21]
Section 9 of the Act stipulates that
employment insurance benefits are payable for each week of unemployment. In
turn, a week of unemployment is defined in subsection 11(1) of the Act as
a week in which the claimant does not work a full working week. Subsections
11(2), (3) and (4), however, set out exceptions to this definition. Subsection 11(4)
specifically provides that a period of planned leave must be considered a full working
week in cases where a contract of employment provides periods of leave for persons
who regularly work more hours than normal. The purpose of this provision is
clear: to ensure that only workers whose work is interrupted may receive
temporary benefits, in keeping with the spirit of a public insurance program
based on the concept of social risk. A worker on compensatory leave for overtime
already worked does not suffer a loss of income, regardless of whether he
receives pay during this leave; his work has not been interrupted and he
maintains his bond with the employer: see Canada (Attorney General) v Foy,
2003 FCA 51, at paragraph 8 [Foy].
[22]
The Applicant submitted that the Respondents'
factual situation meets all the criteria for the exception set out in
subsection 11(4) of the Act. Although this provision is silent on the
number of hours that represents the hours usually worked by persons employed in
full-time employment, the Applicant submits that it is common knowledge that 55
to 60 hours exceeds that number. Parliament did not clearly define this concept
in the Act or regulations, it therefore intended to defer to the provincial
legislation on the matter while also allowing for changes over time. However, both
Quebec's Act Respecting Labour Standards (C.Q.L.R., c N‑1.1, s.
52) and the Canada Labour Code (R.S.C. 1985, c L-2, s. 169) stipulate
that a normal work week is 40 hours.
[23]
On the other hand, the Respondents maintained
that the Appeal Division could reasonably find that subsection 11(4) must be
interpreted using a variable standard depending on the industry, when
determining the number of hours normally worked by persons employed in
full-time employment. They argue that the Applicant's thesis is contrary to the
argument it made before the board of referees that the number of hours normally
worked in a week must be determined in reference to the number of hours
normally worked by all truck drivers (48 hours). They add that if the
legislator wished to defer to provincial legislation in this matter, it could
have stated this explicitly, especially since the provincial standards vary
depending on the field of employment and the type of work, and focus on setting
wage rates rather than determining the amount of time actually worked.
[24]
The case law to which the parties have referred
us is of little assistance, since identification of the control group for
determining the number of hours usually worked does not appear to have been
explicitly addressed by the courts. The Merrigan and Foy decisions
specifically cited by the Respondents do not support their claim. In the first,
the Court found that the issue of whether the claimant worked more than the
number of hours normally worked in a week by persons employed in full-time
employment is a matter of fact in which an umpire must not intervene, unless
the decision is based on an erroneous conclusion, is drawn abusively or arbitrarily
or in disregard for facts brought to the knowledge of the board of referees (paragraph
115(2)(c) of the Act, to the same effect as paragraph 58(1)c) of the Department
of Employment and Social Development Act). In this instance, the Court
was of the opinion that it was open to the board of referees to find that a week
of 52 hours exceeded the number of hours usually worked in a week by persons
employed in full-time employment, without specifying to which group reference
must be made to make this comparison. In the Foy case, the Court
accepted the findings of the board of referees and the umpire that the normal work
week was 48 hours in Prince Edward Island, under the province's Employment
Standards Act; no evidence supported the Attorney General's claim that the
normal number of hours of work for a person employed in full-time employment
was 40 hours.
[25]
In the absence of any clarification on how to
interpret a normal work week, we must presume that the legislator did not wish
to make a distinction based on job category or industry for purposes of the exclusion
set out in subsection 11(4) of the Act. Had it been otherwise, Parliament
would certainly have explicitly stipulated this, as was done in section 31 of
the Employment Insurance Regulations, SOR/96-332. This latter provision
stipulates that a full work week is the number of days normally worked in a
calendar week by "persons in the claimant's grade,
class or shift at the factory, workshop or other premises at which the claimant
is or was employed". It would have been easy to similarly define the
concept of hours usually worked in a week by persons employed in full-time
employment had this been the legislator's intent.
[26]
Reasons of principle also argue against the
contention accepted by the Appeal Division. Interpreting the exclusion set out
in subsection 11(4) based on the hours usually worked by persons employed in
full-time employment in a specific industry would effectively create disparities
in access to employment insurance since the exclusion set out in subsection 11(4)
would not apply uniformly and would favour those workers in fields where the work
week is often longer, to the detriment of most workers, whose work week is
shorter. It should be remembered that employment insurance is a social measure for
the purpose of compensating unemployed workers for their loss of employment
income and ensuring their economic and social security for a time, thus assisting
them in returning to the labour market: Tétreault-Gadoury v Canada (Employment
and Immigration Commission), [1991] 2 S.C.R. 22, at p. 41. It is also significant
that section 4 of the Act sets a uniform ceiling for insurable income,
regardless of the income earned by the claimant from the job or the type of job
he or she held. Using a variable exclusion based on the type of job to
determine whether a person is on leave for the purposes of subsection 11(4)
thus would not be consistent with the spirit of the legislation and the objective
pursued by the legislator.
[27]
I find this conclusion even more justified in
the instant case given that the evidence shows not only that the Respondents were
aware when they were hired of how their employer operated, but also that the decision
to employ four drivers and have them work in rotation on two trucks was based
purely and simply on a business model designed to maximize the company's
profitability. In fact, the employer made no secret of its reasons for
operating its business in this way, pointing out that the drivers were less
efficient when they worked several weeks in a row and that the most profitable
way to operate the business was to keep its trucks moving without interruption:
Applicant's Record, pp. 83-84. It is clear to me that the purpose of the Act
was not to allow an employer to use the employment insurance fund to finance
his business model. To the extent that the interpretation of subsection 11(4) allowed
by the board of referees and the Appeal Division authorizes this outcome, I
consider this an additional reason to find this unreasonable and beyond "possible, acceptable outcomes which are defensible in
respect of the facts and law."
[28]
For the purposes of this case, I see no need to
rule on the Applicant's claim that the concept of "hours
usually worked by persons employed in full-time employment" must be
interpreted in reference to the various provincial laws on the matter. Although
this may be a relevant indication for interpretation and application of subsection
11(4) of the Act, I would hesitate to make it a decisive criterion. There
are a host of legislative and regulatory provisions that govern hours of work
for a range of purposes (minimum standards, rates of pay, mandatory leave,
etc.) and that therefore stipulate various systems depending on the nature of
the jobs. We must refrain from mechanically equating any of these systems out
of context with the exception set out in subsection 11(4) of the Act.
VI.
Conclusion
[29]
On these grounds, I allow the application for
judicial review, I quash decision 2012-1948 rendered by the Appeal Division of
the Social Security Tribunal and I refer the matter back to the Appeal Division
of the Social Security Tribunal for a determination consistent with these
grounds. Without costs.
"Yves de Montigny"
"I concur.
M. Nadon J.A."
"I concur.
Richard Boivin J.A."
Email this Content