Citation: 2010 TCC 315
Date: 20100611
Docket: 2009-1435(EI)
BETWEEN:
FRANCE
GIRARD,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Lamarre J.
[1]
The appellant is
appealing a decision by the Minister of National Revenue (the Minister)
according to which: (1) she did not hold insurable employment from August 31,
2006, to August 31, 2008, and (2) the amounts she received for lost wages and
loss of employment were a retiring allowance within the meaning of the Employment
Insurance Act (EIA) and the Insurable Earnings and Collection of
Premiums Regulations (Regulations), which is not considered
insurable earnings.
[2]
The appellant was
dismissed from her employment with 9088-3620 Québec Inc. Iris Jonquière (Iris),
on August 31, 2006. She challenged her dismissal by filing two complaints with
the Commission des normes du travail. On August 16, 2007, the Commission des
relations du travail (Commission) rendered a decision ordering Iris to pay the
appellant, as lost wages and loss of employment, the equivalent of the salary
and other benefits lost as a result of her dismissal and an additional amount
equal to a year's salary (see the Commission's August 16, 2007, decision,
Exhibit A‑2).
[3]
The appellant received
employment insurance after her dismissal. Following the Commission's August 16,
2007, decision, Human Resources and Skills Development Canada sent a letter to
the lawyer the Commission designated to defend the appellant in her illegal
dismissal complaint, indicating that the amount granted to the appellant as
wages (following the Commission's decision) led to an $11,903 overpayment of
employment-insurance benefits (see December 4, 2007, letter, Exhibit A‑1).
[4]
In the meantime, Iris
challenged the Commission's decision. An agreement was finally reached between
Iris and the appellant (signed December 10, 2007, by Iris and December 24,
2007, by the appellant) in which Iris agreed to pay $21,000 as compensation for
lost wages and other benefits, and a second amount of $21,000 as compensation
for lost employment. Through this agreement, Iris agreed to pay the appellant
the difference between the $42,000 and the amount to be paid to Human Resources
Development Canada (employment insurance) minus the applicable deductions in
such cases. Iris also agreed to repay the Receiver General for Canada the overpayment amount owing. The appellant thereby
granted Iris a full release (see Release and transaction, Exhibit A-4).
[5]
On January 23, 2008,
counsel for the Commission des normes du travail sent the appellant a cheque
for $12,587.41, representing the net amount after all deductions and a
photocopy of a cheque for $11,903 in repayment to the Receiver General for
Canada (Exhibit A-3). During the hearing before me, the appellant explained
that the deductions counsel referred to in the January 23, 2008, letter
included $571.29 for employment insurance.
[6]
The appellant
challenges the repayment of $11,903 to the Receiver General for Canada on the ground that the payment received allowed for
employment insurance benefits because the payment was granted "as
wages."
[7]
Unfortunately for the
appellant, I cannot agree with her on this. The $42,000 paid by Iris was a
retiring allowance within the meaning of paragraph 1(1)(b) of the
Regulations, which is not considered insurable earnings under paragraph 2(3)(b)
of the Regulations. These provisions state:
Insurable Earnings and Collection of Premiums Regulations
1. (1) The definitions in this
subsection apply in these Regulations.
"retiring allowance" means an amount received by a person
…
(b) in respect of a loss of an office or employment of the person,
whether or not received as, on account or in lieu of payment of, damages or
pursuant to an order or judgment or a competent tribunal.
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
…
(2) For the purposes of this Part, the total amount of
earnings…[excludes] any unpaid amount that is in respect of overtime or that
would have been paid by reason of termination of the employment.
(3) For the purposes of subsections (1) and (2),
"earnings" does not include:
…
(b) a retiring allowance;
[8]
In this case, it was
not challenged that Iris was to pay $42,000, minus the applicable deductions,
to the appellant in regard to her loss of employment in accordance with the
Commission's decision. Such an amount is in keeping with the definition of
retiring allowance, which is not considered insurable earnings. Moreover, the
appellant did not work after August 31, 2005, and did not hold insurable
employment.
[9]
Therefore, the
employment-insurance benefits for $11,903 that she received following her loss
of employment on August 31, 2006, and for which she was then paid by her
employer Iris, was to be reimbursed to the Receiver General for Canada, under
articles 45 and 46 of the EIA, which state:
Return of benefits by claimant
45. If a claimant receives
benefits for a period and, under a labour arbitration award or court judgment,
or for any other reason, an employer, a trustee in bankruptcy or any other person
subsequently becomes liable to pay earnings, including damages for wrongful
dismissal or proceeds realized from the property of a bankrupt, to the claimant
for the same period and pays the earnings, the claimant shall pay to the
Receiver General as repayment of an overpayment of benefits an amount equal to
the benefits that would not have been paid if the earnings had been paid or
payable at the time the benefits were paid.
Return
of benefits by employer or other person
46. (1) If under a labour
arbitration award or court judgment, or for any other reason, an employer, a
trustee in bankruptcy or any other person becomes liable to pay earnings,
including damages for wrongful dismissal or proceeds realized from the property
of a bankrupt, to a claimant for a period and has reason to believe that
benefits have been paid to the claimant for that period, the employer or other
person shall ascertain whether an amount would be repayable under section 45 if
the earnings were paid to the claimant and if so shall deduct the amount from
the earnings payable to the claimant and remit it to the Receiver General as
repayment of an overpayment of benefits
Return of benefits by
employer
(2) If a claimant receives benefits for a period and under a labour
arbitration award or court judgment, or for any other reason, the liability of
an employer to pay the claimant earnings, including damages for wrongful
dismissal, for the same period is or was reduced by the amount of the benefits
or by a portion of them, the employer shall remit the amount or portion to the
Receiver General as repayment of an overpayment of benefits.
[10]
The appellant can
therefore not recover the $11,903. However, I feel that the appellant could be
reimbursed for the deductions that were made for employment-insurance
contributions
taken from the payment she received and that is not considered insurable
earnings, under subsections 96(1) or 96(2) of the EIA, which state:
Refund—overpayments
96. (1) If a person has made an
overpayment on account of their employee’s premiums, or has made a payment of
employee’s premiums during a year when the person was not employed in insurable
employment, the Minister shall refund to the person the amount of the
overpayment or payment if the person applies in writing to the Minister within
three years after the end of that year
Refund—appeal decision
(2) If
an amount on account of a premium has been deducted from the remuneration of a
person during a year, or has been paid by an employer with respect to a person
employed by the employer during a year, and by a decision on an appeal under
section 91, 92 or 103 it is decided that the amount so deducted or paid exceeds
the amount required to be deducted or paid, or should not have been deducted or
paid, the Minister shall refund the excess amount or the amount that should
not have been deducted or paid if the person or the employer applies in writing
to the Minister within 30 days after the decision is communicated to the person
or employer, as the case may be.
[Emphasis
added.]
[11]
The appellant must
apply to the Minister on this matter, within the time limit provided.
[12]
Regarding the appeal
before this Court, I have no choice but to dismiss the appeal.
Signed at Ottawa, Canada, this
11th day of June 2010.
"Lucie Lamarre"
Translation
certified true
on this 6th day of
July 2010.
Elizabeth Tan,
Translator
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