Docket: 2010-1799(EI)
BETWEEN:
JEREMY ZAFRAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal
heard on June 3, 2011, at Montreal, Quebec
Before: The Honourable Justice
G. A. Sheridan
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Ilinca Ghibu
Valérie Messore, Student-at-Law
|
____________________________________________________________________
JUDGMENT
The appeal from the decision of the Minister of
National Revenue dated February 24, 2010 is dismissed.
Signed at Ottawa, Canada, this 23rd day of June 2011.
“G. A. Sheridan”
Citation: 2011TCC313
Date: 20110623
Docket: 2010-1799(EI)
BETWEEN:
JEREMY ZAFRAN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Sheridan J.
[1]
The Appellant, Jeremy
Zafran, is appealing the determination of the Minister of National Revenue under subsection 93(3) of the Employment Insurance
Act and section 9.1 of the Employment Insurance Regulations that he did
not have sufficient insurable hours during the relevant period to qualify for
unemployment insurance benefits.
[2]
Mr. Zafran represented
himself and was the only witness to testify. He did not dispute that during the relevant periods he was employed as a
radio announcer or that the number of hours worked during each period was 1,417,
443 and 210, respectively. The purpose of Mr. Zafran’s appeal was to show the inequity of being required to contribute to the Employment Insurance scheme when the
terms of his employment virtually guaranteed he would never be entitled to
receive benefits when he needed them. As I cannot improve on Mr. Zafran’s
eloquent description of the impact of the law as it is currently drafted on
many employed in the radio industry, portions of it are set out below:
… The problem that I face is the industry that I’m in … which is
also the same position that all of my co-workers who are on air find themselves
in, is that we will never achieve thirty-five (35) hours on air; it’s
impossible. My role as an announcer - even full-time - maxes out thirty (30)
hours, maybe twenty (20), twenty-five (25), depending on the shift that we do [at
a] full-time level [but] on part-time [hours]. A few years ago, the industry
converged and what happened is the main companies bought each other out and
their process was to eliminate full‑time positions and to rehire people
part-time thus [eliminating] … the necessity to pay health benefits.
… the reality
of the industry is with convergence, there is a... there has been a move to
eliminate more full-time positions to include part-time positions therefore the
companies, without mentioning it outright eliminate the need for them to pay
extra health benefits to employees but at the same time are able to max out the
use of part-time employees which, at the end, cost them less. Why I’m
presenting that is there [are] a lot of people in my position [who] end up with
fewer hours down the road but they still manage to keep us in the business and
afloat and we... and the full‑time employees, you know, they number...
much fewer, therefore, [the radio companies] have an easier time of eliminating
our positions...
What happened with full-time and part-time announcers, they still have
regulations, … [in] my case … there was a union and if you hit a certain number
of hours, you end up paying time and a half over that and the company [made]… a
concerted effort to ensure that people didn’t go past a certain number of hours
that require them to be... into overtime… . The problem with our industry (and
I think that’s where I’m most frustrated) is I feel like I’m being penalized
for... employment that I have and the earnings that I earn. As a part-time
employee at this company in the year that I was let go, my earnings were $46,000…
plus… $3,000 part‑time.
I supplement my income with freelance which keeps me afloat and which
was... kept me afloat until today. The reality, my hours don’t come close to
where the thirty-five (35) hour minimum work... but I do pay in full-time to
EI. So, my problem is, as a part-time employee, I’m paying in full-time and I’m
not entitled to receive the benefits as though I’m being punished because of
the manner of the hours I work - but not for the amount of income and the
amount of money that the government is willing to take from me. They don’t have
a problem taking the money; they have a problem giving it back when I’m in
trouble. The point of view... the spirit of the law for employment insurance is
to ensure my employment, not to punish me for having a job that actually pays
more than some other jobs... in comparison, if I worked, hypothetically, as a
McDonald’s employee, as a manager and worked enough hours and earned $46,000, I
would have been entitled to full benefits but because I worked twenty (20)
hours, odd hours a week and reported $6,000, that did not entitle me to the
same benefits … as would be an [employed manager] of McDonald’s … .
[Edited for
punctuation, spelling and grammatical errors in the transcript.]
[3]
Mr. Zafran said that he had made essentially
the same argument before the Board of Referees: while they were sympathetic to his
circumstances, their decision had to be made in accordance with the law as
currently drafted. As I suggested to Mr. Zafran at the conclusion of the
hearing, this Court is in the
same position. The remedy he sought was a change to the law, a power which lies
exclusively with Parliament. While aware of that division of powers, Mr. Zafran
expressed doubt that he could prevail upon government to amend the Employment
Insurance Act saying, “I can’t walk up to Parliament and say ‘change the
law’; it just doesn’t work that way”.
[4]
Certainly, effecting legislative
change can be a long and frustrating process. But that should not prevent concerned
Canadians like Mr. Zafran from making the sort of cogent and impassioned
argument he presented in court to elected officials; for example, before the
appropriate parliamentary committee or to his local member of parliament or the
minister(s) responsible. If nothing else, such an initiative would have the
advantage of being in the proper forum. The Court’s
role is to interpret and apply the law, not to create it.
[5]
Although I permitted
Mr. Zafran to set out his concerns under the Charter of Rights and Freedoms
and heard student-at-law Ms. Messore’s able response on behalf of the
Respondent, as Mr. Zafran had not given the requisite notice of constitutional
question, his submissions in that regard could not advance his position.
[6]
In these circumstances, I regret
to say I have no other recourse than to dismiss the appeal.
Signed at Ottawa, Canada, this 23rd day of June 2011.
“G. A. Sheridan”
CITATION: 2011TCC313
COURT FILE NO.: 2010-1799(EI)
STYLE OF CAUSE: JEREMY ZAFRAN AND THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montreal,
Quebec
DATE OF HEARING: June 3, 2011
REASONS FOR JUDGMENT BY: The
Honourable Justice G. A. Sheridan
DATE OF JUDGMENT: June 23, 2011
APPEARANCES:
|
For the
Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Illinca Ghibu
Valérie Messore, Student-at-Law
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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