[OFFICIAL ENGLISH TRANSLATION]
Date: 20020606
Docket: 2002-736(EI)
BETWEEN:
FRANÇOISE DUPUIS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal concerning the
appellant's insurable hours during the period of work from
May 21 to October 6, 2001, when she was employed by the
"Comité Local de Développement de l'Anse
à Valeau".
[2] The evidence showed that the
appellant had been employed by the "Comité Local de
Développement de l'Anse à Valeau" for a
period of 20 weeks.
[3] That employment was wholly
subsidized by the Government of Quebec. The work consisted in
acting as a guide-interpreter and replacement for the reception
officer when she was absent.
[4] The appellant worked
five days a week and had two days off, as did the other
three guide-interpreters hired by the employer. The
appellant's work schedule was from 9:00 a.m. to
6:00 p.m. and was established by the payer's team
leader.
[5] The appellant was part of a team
that shared the working hours for the visiting public on the
basis of a schedule.
[6] At the outset, it was agreed that
the wage would be $7 an hour for 40-hour weeks for a period
of 20 weeks. The parties on both sides accepted the said
conditions, particularly since the arrangement was essentially
based on the return of a grant obtained under an agreement
(Exhibit I-2), which provided for an hourly wage of $7
for 40-hour weeks over a 20-week period. The hourly
wage was increased by an amount of $1.93 an hour for the entire
20-week period as a result of another grant obtained by the
payer from an anti-poverty program.
[7] The appellant began work as
planned. To be able to start her work at 9:00 a.m., she had
to stop at another office at around 8:30 a.m. to pick up
certain items. At noon, the employees, including the appellant,
had one hour for lunch. The appellant and her fellow workers
finished work at 6:00 p.m. That was the basic work
schedule.
[8] From time to time, when things got
busy, the guides had to work into their lunch hour or finish work
later than 6:00 p.m. To compensate for this it was agreed
that, at the end of the tourist season, the guides could leave
before the determined hour of 6:00 p.m. for
two reasons. First, the site had no electrical service and,
second, darkness fell much earlier than at the start of the
period.
[9] The appellant thus compiled and
added to the regular work hours agreed upon a half-hour per day
for the period from 8:30 to 9:00 a.m. and a half-hour to all
the noon periods, since it appears that she generally had only
30 minutes for lunch.
[10] Despite the importance of the grievance
regarding the number of hours, at no time during the
20-week term of the contract was the employer informed in
any way whatever that the appellant was dissatisfied with the
hours. It was not until after the 20-week work period that
the claim was submitted to the employer. The claim was also the
subject of a formal application to the Commission des normes du
travail du Québec.
[11] The appellant admitted and acknowledged
that the primary basis of her claim was to increase her claim for
employment insurance benefits. In support of her claims, the
appellant referred to Exhibit A-1, which reads as
follows:
[TRANSLATION]
August 20, 2001
Give the tours even at 5:55 p.m.; give them and, even if
it is 6:00 p.m., give the tour for the tourists.
Do not discard this memo.
Blandine Poirier, Pres.
Because in the fall, in September, darkness falls sooner and
you will be able to finish earlier and will thus get your time
back. To be paid for 40 hours. Think about it, B.P.
[12] The point for determination is whether
the hours in question, that is the half-hour every morning and
the half-hour at lunchtime, constituted insurable hours within
the meaning of the Employment Insurance Act.
[13] The evidence clearly showed that the
hours in question did not come within the contract of service
agreed to between the parties. The appellant interprets the
memorandum from the employer's agent in her own manner, that
is, that toward the end of the period, employees would have the
opportunity to receive the same remuneration, even though the
number of hours worked was much lower than the 40 hours
provided for in the initial agreement. Furthermore, the literal
meaning of the memo in question is not at all consistent with the
appellant's interpretation. That meaning corresponds
precisely to the employer's version.
[14] The appellant interprets the content of
that memorandum as meaning that the extra hours worked would
eventually be accounted for and paid at the end of the
20-week period.
[15] I do not believe that this is the
meaning that should be given to the memo. The employer's
agent stated that, at the end of the period, the hours of work
would clearly be reduced because of darkness, thus enabling the
employees, including the appellant, to receive the same salary
for fewer hours worked.
[16] A contract of service is a genuine
contract that requires the express or implied consent of the two
contracting parties. Neither of the parties can amend it
unilaterally, in which case the party subject to the unilateral
change has no obligation to comply with the amendment to which
that party has not given his or her consent.
[17] In respect to an employment contract,
however, the employer is and may be subject to compliance with
the various statutory provisions respecting the environment,
occupational safety, minimum conditions and certain standards
respecting dismissal and so forth. I do not believe that those
specific provisions affect the legal framework regarding
insurable hours.
[18] Certain relevant provisions should be
reproduced. Section 2 of the Insurable Earnings and
Collection of Premiums Regulations reads as follows:
INSURABLE EARNINGS
Earnings from Insurable Employment
2.(1) For the purposes of the
definition "insurable earnings" in subsection 2(1) of
the Act and for the purposes of these Regulations, the total
amount of earnings that an insured person has from insurable
employment is
(a) the total
of all amounts, whether wholly or partly pecuniary, received or
enjoyed by the insured person that are paid to the person by the
person's employer in respect of that employment, and
(b) the
amount of any gratuities that the insured person is required to
declare to the person's employer under provincial
legislation.
(2) For the purposes
of this Part, the total amount of earnings that an insured person
has from insurable employment includes the portion of any amount
of such earnings that remains unpaid because of the
employer's bankruptcy, receivership, impending receivership
or non-payment of remuneration for which the person has filed a
complaint with the federal or provincial labour authorities,
except for any unpaid amount that is in respect of overtime or
that would have been paid by reason of termination of the
employment.
[19] Section 9 of the Employment
Insurance Regulations reads as follows:
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment -- Methods of
Determination
9.1 Where a person's
earnings are paid on an hourly basis, the person is considered to
have worked in insurable employment for the number of hours that
the person actually worked and for which the person was
remunerated.
9.2 Subject to section 10,
where a person's earnings or a portion of a person's
earnings for a period of insurable employment remains unpaid for
the reasons described in subsection 2(2) of the Insurable
Earnings and Collection of Premiums Regulations, the person
is deemed to have worked in insurable employment for the number
of hours that the person actually worked in the period, whether
or not the person was remunerated.
[20] In the instant case, the
appellant's employment contract was shaped entirely by a
contract entered into between the payer and the Government of
Quebec (Exhibit I-2). That contract specifically
provided for the content of the contracts of employment that
would ultimately govern the employees, including the appellant.
The contract between the Government and the Comité local
de développement provided the following:
- Number of hours per
week
: 40
- Hourly
wage
: $7
- Subsidy
rate
:
100 percent
- Duration of
employment
:
20 weeks
[21] The employment contract of the
interested parties was subsequently improved when the salary was
increased by $1.93 an hour, as a result of another labour support
program.
[22] The evidence adduced by the appellant
did not show on the balance of evidence that an agreement to
increase the number of hours had been made in connection with the
contract entered into between the parties, which contract
stipulated 40 hours.
[23] The explanations provided neither
justified nor supported the appellant's claims, particularly
since she admitted that her claims had been strongly influenced
by her wish to see her employment insurance situation
improved.
[24] Consequently, the evidence does not
justify the Court's intervention. I confirm that the number
of insurable hours attributed by the respondent was completely
consistent with the initial agreement providing that the
appellant was required to work 40 hours a week for a period
of 20 weeks.
[25] This conclusion is moreover consistent
in every respect with the statutory provisions quoted above.
[26] The appeal is dismissed.
Signed at Ottawa, Canada, this 6th day of June 2002.
J.T.C.C.
Translation certified true
on this 18th day of September 2003.
Sophie Debbané, Revisor
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